UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 10

GENERAL FORM FOR REGISTRATION OF SECURITIES
Pursuant to Section 12(b) or (g) of The Securities Exchange Act of 1934

OncoCyte Corporation
 (Exact name of registrant as specified in its charter)

California
27-1041563
(State or other jurisdiction of
(I.R.S. Employer
incorporation or organization)
Identification No.)

1301 Harbor Bay Parkway, Suite 100
Alameda, California 94502
(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code (510) 521-3390

Securities registered pursuant to Section 12(b) of the Act:
Common Stock, no par value

Securities to be registered pursuant to Section 12(g) of the Act:
None
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer
Accelerated filer
Non-accelerated filer T (Do not check if a smaller reporting company)                
Smaller reporting company

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act): Yes No T
 

 


INFORMATION REQUIRED IN REGISTRATION STATEMENT

CROSS-REFERENCE SHEET BETWEEN INFORMATION STATEMENT AND ITEMS OF FORM 10

Certain information required to be included in this Form 10 is incorporated by reference to specifically-identified portions of the body of the information statement filed herewith as Exhibit 99.1. None of the information contained in the information statement shall be incorporated by reference herein or deemed to be a part hereof unless such information is specifically incorporated by reference.

Item 1. Business

The information required by this item is contained under the sections of the information statement entitled “Information Statement Summary,” “Risk Factors,” “Management's Discussion and Analysis of Financial Condition and Results of Operations,” and “Business.” Those sections are incorporated herein by reference.

Item 1A. Risk Factors

The information required by this item is contained under the section of the information statement entitled “Risk Factors.” That section is incorporated herein by reference.

Item 2. Financial Information

The information required by this item is contained under the sections of the information statement entitled “Summary and Selected Financial Data,” “Capitalization,” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” Those sections are incorporated herein by reference.

Item 3. Properties

The information required by this item is contained under the section of the information statement entitled “Business – Manufacturing – Facilities Required.” That section is incorporated herein by reference.

Item 4. Security Ownership of Certain Beneficial Owners and Management

The information required by this item is contained under the section of the information statement entitled “Security Ownership of Certain Beneficial Owners and Management.” That section is incorporated herein by reference.

Item 5. Directors and Executive Officers

The information required by this item is contained under the section of the information statement entitled “Management” and “Security Ownership of Certain Beneficial Owners and Management.” Those sections are incorporated herein by reference.

Item 6. Executive Compensation

The information required by this item is contained under the sections of the information statement entitled “Management – Compensation of Directors” and “Executive Compensation.” Those sections are incorporated herein by reference.

Item 7. Certain Relationships and Related Party Transactions; and Director Independence

The information required by this item is contained under the sections of the information statement entitled “Risk Factors – Risks Related to our Relationship with BioTime,” “Management,” “Executive Compensation,” and “Security Ownership of Certain Beneficial Owners and Management – Certain Relationships and Related Party Transactions.” Those sections are incorporated herein by reference.

Item 8. Legal Proceedings

The information required by this item is contained under the section of the information statement entitled “Business – Legal Proceedings.” This section is incorporated herein by reference.
 
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Item 9. Market Price of and Dividends on Registrant’s Common Equity and Related Stockholder Matters

The information required by this item is contained under the sections of the information statement entitled “Risk Factors,” “Dividend Policy,” “Capitalization,” “The Distribution,” “Shares Eligible for Future Sale,” and “Description of Securities.” Those sections are incorporated herein by reference.

Item 10. Recent Sales of Unregistered Securities

The information required by this item is contained under the section of the information statement entitled “Security Ownership of Certain Beneficial Owners and Management — Certain Relationships and Related Party Transactions.” That section is incorporated herein by reference.

Item 11. Description of Registrant’s Securities to be Registered

The information required by this item is contained under the sections of the information statement entitled “Dividend Policy” and “Description of Securities.” Those sections are incorporated herein by reference.

Item 12. Indemnification of Directors and Officers

The information required by this item is contained under the section of the information statement entitled “Management — Indemnification of Directors and Officers.” That section is incorporated herein by reference.

Item 13. Financial Statements and Supplementary Data

The information required by this item is contained under the sections of the information statement entitled “Index to Audited Financial Statements” (and the financial statements referenced therein) and “Index to Unaudited Condensed Interim Financial Statements” (and the financial statements referenced therein). Those sections are incorporated herein by reference.

Item 14. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

None.
 
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Item 15. Financial Statement and Exhibits

(a) Financial Statements

The information required by this item is contained under the section of the information statement entitled “Index to Financial Statements” (and the financial statements referenced therein). That section is incorporated herein by reference.

(b) Exhibits.

Exhibit Number
 
Exhibit Description
                
 
                                                
 
Articles of Incorporation, as amended*
     
 
By-Laws, as amended*
     
4.1
 
Specimen of Common Stock Certificate†
     
 
Shared Facilities Agreement, dated October 8, 2009 between OncoCyte Corporation and BioTime, Inc.*
     
 
Stock Option Plan, as amended*
     
 
Form of Employee Incentive Stock Option Agreement*
     
 
Form of Director/Consultant Option Agreement*
     
 
Employment Agreement, dated April 1, 2011, between OncoCyte Corporation and Karen Chapman*
     
 
Employment Agreement, dated June 15, 2015, between OncoCyte Corporation and William Annett*
     
 
Employment Agreement, dated August 1, 2015, between OncoCyte Corporation and Kristine Mechem *
     
 
Registration Rights Agreement dated October 15, 2009*
     
 
Amendment of Registration Rights Agreement, dated August 23, 2011*
     
 
Second Amendment of Registration Rights Agreement, dated May 8, 2015*
     
 
Subscription Agreement, dated May 8, 2015, between OncoCyte Corporation and George Karfunkel*
     
 
Subscription Agreement, dated May 8, 2015, between OncoCyte Corporation and Bernard Karfunkel*
     
 
Convertible Promissory Note, dated May 8, 2015, payable to BioTime, Inc.*
     
 
Agreement, dated June 26, 2015, between OncoCyte Corporation and George Karfunkel and Bernard Karfunkel*
     
 
Sponsored Research Agreement, dated September 18, 2013, between OncoCyte Corporation and The Wistar Institute of Anatomy and Biology (Portions of this exhibit have been omitted pursuant to a request for confidential treatment)*
     
 
First Amendment to the Sponsored Research Agreement, dated August 6, 2015, between OncoCyte Corporation and The Wistar Institute of Anatomy and Biology (Portions of this exhibit have been omitted pursuant to a request for confidential treatment)*
 
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Subscription Agreement, dated September 29, 2015, between OncoCyte Corporation and    BioTime, Inc.*
     
10.18   Second Amendment to the Sponsored Research Agreement, dated October 18, 2015, between OncoCyte Corporation and The Wistar Institute of Anatomy and Biology (Portions of this exhibit have been omitted pursuant to a request for confidential treatment)*
     
 
Information Statement of OncoCyte Corporation, preliminary and subject to completion, dated November 23, 2015*

* Filed herewith.

† To be filed by amendment.
 
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SIGNATURES

Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized on the 23 rd day of November, 2015.

 
ONCOCYTE CORPORATION
   
 
By: 
/s/ William Annett
   
William Annett
   
Chief Executive Officer

 
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Exhibit 3.1
 
ARTICLES OF INCORPORATION
OF
ONCOCYTE CORPORATION

ONE: The name of this corporation is OncoCyte Corporation.

TWO: The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business, or the practice of a profession permitted to be incorporated by the California Corporations Code.

THREE: The name and address in this State of the corporation’s initial agent for service of process is:

Judith Segall
1301 Harbor Bay Parkway, Suite 100
Alameda, California 94502

FOUR: The corporation is authorized to issue two classes of shares, which shall be designated “Common Stock” and “Preferred Stock.”  The number of shares of Common Stock which the corporation is authorized to issue is 50,000,000, and the number of shares of Preferred Stock which the corporation is authorized to issue is 5,000,000.  The Preferred Stock may be issued in one or more series as the board of directors may by resolution designate.  The board of directors is authorized to fix the number of shares of any series of Preferred Stock and to determine or alter the rights, preferences, privileges, and restrictions granted to or imposed upon the Preferred Stock as a class, or upon any wholly unissued series of Preferred Stock.  The board of directors may, by resolution, increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of any series of Preferred Stock subsequent to the issue of shares of that series.

FIVE: The liability of the directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California law.  The corporation is authorized to indemnify “agents”, as such term is defined in Section 317 of the California Corporations Code, to the fullest extent permissible under California law.

DATED: September 3, 2009

 
/s/Richard S. Soroko
 
Richard S. Soroko, Incorporator
 

CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION

Joseph Wagner and Judith Segall certify that:
 
1.                They are the President and Secretary, respectively, of OncoCyte Corporation, a California corporation.

2.                Article FOUR of the Articles of Incorporation of the corporation is amended to read as follows:

FOUR: The corporation is authorized to issue two classes of shares, which shall be designated “Common Stock” and “Preferred Stock.”  The number of shares of Common Stock which the corporation is authorized to issue is 100,000,000, and the number of shares of Preferred Stock which the corporation is authorized to issue is 5,000,000.  The Preferred Stock may be issued in one or more series as the board of directors may by resolution designate.  The board of directors is authorized to fix the number of shares of any series of Preferred Stock and to determine or alter the rights, preferences, privileges, and restrictions granted to or imposed upon the Preferred Stock as a class, or upon any wholly unissued series of Preferred Stock.  The board of directors may, by resolution, increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of any series of Preferred Stock subsequent to the issue of shares of that series.

3.               The foregoing amendment of Articles of Incorporation has been duly approved by the board of directors.

4.               The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with section 902 of the Corporations Code.  The total number of outstanding shares of Common Stock of the corporation entitled to vote with respect to the amendment was 36,400,000.  The number of   shares of Common Stock voting in favor of the amendment equaled or exceeded the vote required.  The percentage vote required was more than 50%.  There are no Preferred Shares of the corporation issued and outstanding.

We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge.

Executed at Alameda, California on April 2, 2015.

 
/s/Joseph Wagner
 
Joseph Wagner,
 
President
   
 
/s/Judith Segall
 
Judith Segall, Secretary
 

CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION

William Annett and Judith Segall certify that:

1.         They are the President and Secretary, respectively, of OncoCyte Corporation, a California corporation.

2.         Article FOUR of the Articles of Incorporation of the corporation is amended to read as follows:

FOUR: The corporation is authorized to issue two classes of shares, which shall be designated “Common Stock” and “Preferred Stock.” The number of shares of Common Stock which the corporation is authorized to issue is 50,000,000, and the number of shares of Preferred Stock which the corporation is authorized to issue is 5,000,000. The Preferred Stock may be issued in one or more series as the board of directors may by resolution designate. The board of directors is authorized to fix the number of shares of any series of Preferred Stock and to determine or alter the rights, preferences, privileges, and restrictions granted to or imposed upon the Preferred Stock as a class, or upon any wholly unissued series of Preferred Stock. The board of directors may, by resolution, increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of any series of Preferred Stock subsequent to the issue of shares of that series. Upon the amendment of this Article to read as herein set forth, each outstanding share of Common Stock is converted into 0.5 of a share of Common Stock.

3.         The foregoing amendment of Articles of Incorporation has been duly approved by the board of directors.

4.         The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with section 902 of the Corporations Code. The total number of outstanding shares of Common Stock of the corporation entitled to vote with respect to the amendment was 47,827,714. The number of   shares of Common Stock voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. There are no Preferred Shares of the corporation issued and outstanding.

We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge.

Executed at Alameda, California on November 17, 2015.

 
/s/William Annett
 
William Annett, President
   
 
/s/Judith Segall
 
Judith Segall, Secretary

 


Exhibit 3.2
 
BYLAWS OF
ONCOCYTE CORPORATION
a California corporation

ARTICLE I
Offices

Section 1.  Principal Office .  Offices may be established and maintained at such place or places, either within or without the State of California, as the Board of Directors may from time to time designate.  The Board of Directors shall fix the location of the principal executive office of the corporation at any place within or without the State of California.  If the principal executive office is located outside the State of California, and the corporation has one or more business offices in the State of California, the Board of Directors shall fix and designate a principal business office in the State of California.

ARTICLE II
Meetings of Shareholders

Section 1.  Place of Meetings .  All meetings of shareholders shall be held at such place, either within or without the State of California, as the Board of Directors may designate.  If no designation is made, the meeting shall be held at the principal executive office of the corporation.

Section 2.  Annual Meetings .  The annual meetings of shareholders shall be held once each year on a date and time designated by the Board of Directors, but in any event not less frequently than once every 15 months.  At each annual meeting, directors shall be elected to serve during the ensuing year and until their successors are elected and qualified; reports of the affairs of the corporation shall be considered, and any other business may be transacted which is within the powers of the shareholders.

Section 3.  Special Meetings .  Special meetings of the shareholders, for any purpose or purposes whatsoever, may be called at any time by the Chairman of the Board or by the President, or by the Board of Directors, or by any two directors, or by one or more shareholders entitled to cast not less than 10% of the votes eligible to be cast at that meeting.
 

Upon request in writing to the Chairman of the Board, the President, any Vice President or the Secretary, specifying the general nature of the business proposed to be transacted, sent by certified mail or telegraphic or other electronic facsimile transmission or delivered to such officer in person, by any person or persons (other than the Board of Directors) entitled to call a special meeting of shareholders, it shall be the duty of such officer forthwith to cause notice to be given to the shareholders entitled to vote that a meeting will be held on a date requested by the person or persons calling the meeting; provided, that the date of the meeting requested by such person or persons calling the meeting shall be not less than 35 nor more than 60 days after the receipt of such request.  If such notice shall not be given within 20 days after the date of receipt of such request, the person or persons entitled to call the meeting may fix the time of meeting and give the notice thereof in the manner provided by law or in these bylaws.  Nothing in this paragraph shall limit, fix, or affect the time or notice requirements for shareholder meetings called by the Board of Directors.

Section 4.  Notice of Shareholders' Meetings .  All notices of meetings of shareholders shall be sent or otherwise given in accordance with Section 5 of this Article II not less than 10 (or, if sent by third class mail, 30) nor more than 60 days before the date of the meeting.  The notice shall specify the place, date and hour of the meeting and (i) in the case of a special meeting, the general nature of the business to be transacted, or (ii) in the case of the annual meeting, those matters which the Board of Directors, at the time of giving the notice, intends to present for action by the shareholders.  The notice of any meeting at which directors are to be elected shall include the name of any nominee or nominees whom, at the time of the notice, management intends to present for election.

If action is proposed to be taken at any meeting for approval of (i) a contract or transaction in which a director has a direct or indirect financial interest, pursuant to Section 310 of the California Corporations Code, (ii) an amendment of the articles of incorporation, pursuant to Section 902 of the California Corporations Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of the California Corporations Code, (iv) a voluntary dissolution of the corporation, pursuant to Section 1900 of the California Corporations Code, or (v) a distribution in dissolution other than in accordance with the rights of outstanding preferred shares, pursuant to Section 2007 of the California Corporations Code, the notice shall also state the general nature of that proposal.

Section 5.  Manner of Giving Notice; Affidavit of Notice.   Notice of any meeting of shareholders shall be given either personally or by first-class mail or telegraphic or other written communication, charges prepaid, addressed to the shareholder at the address of that shareholder appearing on the books of the corporation or given by the shareholder to the corporation for the purpose of notice.  If no such address appears on the corporation's books or is given, notice shall be deemed to have been given if sent to that shareholder by first-class mail or telegraphic or other written communication to the corporation's principal executive office, or if published at least once in a newspaper of general circulation in the county where that office is located.  Notice shall be deemed to have been given at the time when delivered personally or deposited in the mail or sent by telegram or other means of written communication.
 
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If any notice addressed to a shareholder at the address of that shareholder appearing on the books of the corporation is returned to the corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice to the shareholder at that address, all future notices or reports shall be deemed to have been duly given without further mailing if these shall be available to the shareholder on written demand of the shareholder at the principal executive office of the corporation for a period of 1 year from the date of the giving of the notice.
 
An affidavit of the mailing or other means of giving any notice of any shareholders' meeting shall be executed by the Secretary, assistant secretary, or any transfer agent of the corporation giving the notice, and shall be filed and maintained in the minute book of the corporation.

Section 6.  Quorum .  The presence in person or by proxy of the holders of a majority of the shares entitled to vote at any meeting, annual or special, shall constitute a quorum for the transaction of business.  The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum.

Section 7.  Adjourned Meeting and Notice Thereof .  Any shareholders' meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy, but in the absence of a quorum at the commencement of the meeting, or if no quorum can be subsequently raised, no other business may be transacted at such meeting.

When any meeting of shareholders, either annual or special, is adjourned to another time or place, notice of the adjourned meeting need not be given if the time and place are announced at the meeting at which the adjournment is taken, provided that if the adjournment is for more than forty-five (45) days from the date set for the original meeting, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.  At any adjourned meeting the corporation may transact any business which might have been transacted at the original meeting.
 
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Section 8.  Voting .  The shareholders entitled to vote at any meeting of shareholders shall be determined in accordance with the provisions of Section 11 of this Article II, subject to the provisions of Sections 702 to 704, inclusive, of the California Corporations Code (relating to voting shares held by a fiduciary, in the name of a corporation, or in joint ownership).  The shareholders' vote may be by voice vote or by ballot, provided, however, that any election for directors must be by ballot if demanded by any shareholder before the voting has begun.  On any matter other than the election of directors, any shareholder may vote part of the shares in favor of the proposal and refrain from voting the remainder shares or vote them against the proposal, but, if the shareholder fails to specify the number of shares which the shareholder is voting affirmatively, it will be conclusively presumed that the shareholder's approving vote is with respect to all shares that the shareholder is entitled to vote.  If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on any matter (other than the election of directors) shall be the act of the shareholders, unless the vote of a greater number or voting by classes is required by California General Corporation Law or by the articles of incorporation.

At a shareholders' meeting at which directors are to be elected, no shareholder shall be entitled to cumulate votes (i.e., cast for any one or more candidates a number of votes greater than the number of the shareholder's shares) unless the candidates' names have been placed in nomination prior to commencement of the voting and a shareholder has given notice prior to commencement of the voting of the shareholder's intention to cumulate votes.  If any shareholder has given such a notice, then every shareholder entitled to vote may cumulate votes for candidates in nomination and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which that shareholder's shares are entitled, or distribute the shareholder's votes on the same principle among any or all of the candidates, as the shareholder thinks fit.  The candidates receiving the highest number of votes, up to the number of directors to be elected, shall be elected.

Section 9.  Consent of Absentees .  The transactions of any meeting of shareholders, either annual or special, however called and noticed and wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof.  The waiver of notice or consent need not specify either the business to be transacted or the purpose of any annual or special meeting of shareholders, except that, if action is taken or proposed to be taken for approval of any of those matters specified in the second paragraph of Section 4 of this Article II, the waiver of notice or consent shall state the general nature of the proposal.  All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.
 
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Attendance by a person at a meeting shall also constitute a waiver of notice of that meeting, except when the person objects, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters not included in the notice of the meeting if that objection is expressly made at the meeting.

Section 10.  Shareholder Action by Written Consent Without a Meeting.   Any action that may be taken at any annual or special meeting of shareholders may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take that action at a meeting at which all shares entitled to vote on that action were present and voted.  In the case of election of directors, such a consent shall be effective only if signed by the holders of all outstanding shares entitled to vote for the election of directors, provided, however, that a director may be elected at any time to fill a vacancy on the Board of Directors other than a vacancy created by removal of a director, that has not been filled by the directors, by the written consent of the holders of a majority of the outstanding shares entitled to vote for the election of directors.  All such consents shall be filed with the Secretary of the corporation and shall be maintained in the corporate records.  Any shareholder giving a written consent, or the shareholder's proxy holders, or a transferee of the shares or a personal representative of the shareholder or their respective proxy holders, may revoke the consent by a writing received by the Secretary of the corporation before written consents of the number of shares to authorize the proposed action have been filed with the Secretary.
 
If the consents of all shareholders entitled to vote have not been solicited in writing, and if the unanimous written consent of all such shareholders shall not have been received, the Secretary shall give prompt notice of the corporation action approved by the shareholders without a meeting.  This notice shall be given in the manner specified in Section 5 of this Article II.  In the case of approval of (i) contracts or transactions in which a director has a direct or indirect financial interest, pursuant to Section 310 of the California Corporations Code, (ii) indemnification of agents of the corporation, pursuant to Section 317 of the California Corporations Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of the California Corporations Code, and (iv) a distribution in dissolution other than in accordance with the rights of outstanding preferred shares, pursuant to Section 2007 of the California Corporations Code, the notice shall be given at least ten (10) days before the consummation of any action authorized by that approval.
 
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Section 11.  Record Date for Shareholder Notice, Voting, and Giving Consents .  For purposes of determining the shareholders entitled to notice of any meeting or to vote or entitled to give consent to corporate action without a meeting, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the date of any meeting or action, and in this event only shareholders of record on the date so fixed are entitled to notice and to vote or to give consents, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date, except as otherwise provided in the California General Corporation Law.

If the Board of Directors does not so fix a record date:

(a)  The record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held.

(b)  The record date for determining shareholders entitled to give consent to corporate action in writing without a meeting, (i) when no prior action by the Board of Directors has been taken, shall be the day on which the first written consent is given, or (ii) when prior action of the Board of Directors has been taken, shall be at the close of business on the day on which the Board of Directors adopts the resolution relating to that action, or the 60th day before the date of such other action, whichever is later.

Section 12.  Proxies .  Every person entitled to vote for directors or on any other matter shall have the right to do so either in person or by one or more agents authorized by a written proxy signed by the person and filed with the Secretary of the corporation.  A proxy shall be deemed signed if the shareholder's name is placed on the proxy (whether by manual signature, typewriting, telegraphic transmission, or otherwise) by the shareholder or the shareholder's attorney-in-fact.  A validly executed proxy which does not state that it is irrevocable shall continue in full force and effect unless (i) revoked by the person executing it, before the vote pursuant to that proxy, by a writing delivered to the corporation stating that the proxy is revoked, or by a subsequent proxy executed by, or attendance at the meeting and voting in person by, the person executing the proxy; or (ii) written notice of the death or incapacity of the maker of that proxy is received by the corporation before the vote pursuant to that proxy is counted, provided, however, that no proxy shall be valid after the expiration of eleven (11) months from the date of the proxy, unless otherwise provided for in the proxy.  The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Sections 705(e) and 705(f) of the California Corporations Code.
 
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Section 13.  Inspectors of Election .  Before any meeting of shareholders, the Board of Directors may appoint any persons other than nominees for office to act as inspectors of election at the meeting or its adjournment.  If no inspectors of election are so appointed, the chairman of the meeting may, and on the request of any shareholder or a shareholder's proxy shall, appoint inspectors of election at the meeting.  The number of inspectors shall be either one (1) or three (3).  If inspectors are appointed at a meeting on the request of one or more shareholders or proxies, the holders of a majority of shares or their proxies present at the meeting shall determine whether one (1) or three (3) inspectors are to be appointed.  If any person appointed as inspector fails to appear or fails or refuses to act, the chairman of the meeting may, and upon the request of any shareholder or a shareholder's proxy shall, appoint a person to fill that vacancy.

These inspectors shall:

(a)  Determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, and the authenticity, validity and effect of proxies;

(b)  Receive votes, ballots or consents;

(c)  Hear and determine all challenges and questions in any way arising in connection with the right to vote;

(d)  Count and tabulate all votes or consents;

(e)  Determine when the polls shall close;

(f)  Determine the result; and

(g)  Do any other acts that may be proper to conduct the election or voting with fairness to all shareholders.
 
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ARTICLE III
Directors
 
Section 1.  Powers .  Subject to the provisions of the California General Corporation Law and any limitations in the articles of incorporation and these bylaws relating to action required to be approved by the shareholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board of Directors.

Section 2.  Number and Qualification of Directors .  The authorized number of directors shall be not less than three (3) nor more than five (5) and, and the exact number of directors shall be fixed, within the limits specified, by approval of the board of directors.  After the issuance of shares, the provisions of this bylaw may be changed only by a duly adopted amendment adopted by the vote or written consent of holders of a majority of the outstanding shares entitled to vote, in accordance with the provisions of Section 212 of the California Corporations Code.

Section 3.  Election and Term of Office .  The directors shall be elected at each annual meeting of shareholders but, if any such annual meeting is not held or the directors are not elected thereat, the directors may be elected at any special meeting of shareholders held for that purpose.  All directors shall hold office until their respective successors are elected, or until death, resignation or removal.

Section 4.  Vacancies .  Vacancies in the Board of Directors may be filled by a majority of the remaining directors, though less than a quorum, or by a sole remaining director, except that a vacancy created by the removal of a director by the vote or written consent of the shareholders or by court order may be filled only by the vote of a majority of the shares entitled to vote represented at a duly held meeting at which a quorum is present, or by the written consent of holders of a majority of the outstanding shares entitled to vote.  Each director so elected shall hold office until the next annual meeting of the shareholders and until a successor has been elected and qualified.

A vacancy or vacancies in the Board of Directors shall be deemed to exist in the event of the death, resignation, or removal of any director, or if the Board of Directors by resolution declares vacant the office of a director who has been declared of unsound mind by an order of court or convicted of a felony, or if the shareholders fail, at any meeting of shareholders at which any director or directors are elected, to elect the number of directors to be voted for at that meeting.
 
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The shareholders may elect a director or directors at any time to fill any vacancy or vacancies not filled by the directors, but any such election by written consent shall require the consent of a majority of the outstanding shares entitled to vote.

Any director may resign effective on giving written notice to the Chairman of the Board, the President, the Secretary, or the Board of Directors, unless the notice specifies a later time for that resignation to become effective.  Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.  If the resignation of a director is effective at some future time, the Board of Directors may elect a successor to take office when the resignation becomes effective.

No reduction of the authorized number of directors shall have the effect of removing any director before that director's term of office expires.

Section 5.  Place of Meetings and Meetings by Telephone .  Regular meetings of the Board of Directors may be held at any place within or outside the State of California that has been designated from time to time by resolution of the Board of Directors.  In the absence of such a designation, regular meetings shall be held at the principal executive office of the corporation.  Special meetings of the Board of Directors shall be held at any place within or outside the State of California that has been designated in the notice of the meeting or, if not stated in the notice or if there is no notice, at a principal executive office of the corporation.  Any meeting, regular or special, may be held by conference telephone or similar communication equipment, so long as all directors participating in the meeting can hear one another, and all such directors shall be deemed to be present in person at the meeting.

Section 6.  Regular Meetings .  Regular meetings of the Board of Directors shall be held, without call or notice, immediately following each annual meeting of shareholders for the purpose of organization, election of officers and the transaction of other business.  Other regular meetings may be held without call or notice at such time and place as may be fixed by the Board of Directors from time to time.

Section 7.  Special Meetings .  Special meetings of the Board of Directors for any purpose or purposes may be called at any time by the Chairman of the Board or the President or the Secretary or any two directors.

Notice of the time and place of special meetings shall be delivered personally or by telephone to each director or sent by first-class mail or telegram, charges prepaid, addressed to each director at that director's address as it is shown on the records of the corporation.  In case the notice is mailed, it shall be deposited in the United States mail at least four (4) days before the time of the holding of the meeting.  In case the notice is delivered personally, or by telephone or telegram, it shall be delivered personally or by telephone or to the telegram corportion at least forty-eight (48) hours before the time of the holding of the meeting.  Any oral notice given personally or by telephone may be communicated either to the director or to a person at the office of the director who the person giving the notice has reason to believe will promptly communicate it to the director.  The notice need not specify the purpose of the meeting nor the place if the meeting is to be held at the principal executive office of the corporation.
 
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Section 8.  Action Without Meeting .  Any action by the Board of Directors may be taken without a meeting if all members of the Board of Directors shall individually or collectively consent in writing to such action.  Such written consent or consents shall be filed with the minutes of the proceedings of the Board of Directors.

Section 9.  Quorum .  A majority of the authorized number of directors shall be necessary to constitute a quorum for the transaction of business, except to adjourn as hereinafter provided.  Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board of Directors, subject to the provisions of Section 310 of the California Corporations Code (as to approval of contracts or transactions in which a director has a direct or indirect material financial interest), Section 311 of the California Corporations Code (as to appointment of committees), and Section 317(e) of the California Corporations Code (as to indemnification of directors).  A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for that meeting.

Section 10.  Waiver of Notice .  The transactions of any meeting of the Board of Directors, however called or noticed or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present and if, either before or after the meeting, each of the directors not present signs a written waiver of notice or a consent to holding such meeting or an approval of the minutes thereof.  All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.  Notice of a meeting shall also be deemed given to any director who attends the meeting without protesting, before or at its commencement, the lack of notice to that director.

Section 11.  Adjournment .  A majority of the directors present, whether or not constituting a quorum, may adjourn any meeting to another time and place.
 
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Section 12.  Notice of Adjournment .  Notice of the time and place of holding an adjourned meeting need not be given, unless the meeting is adjourned for more than twenty-four hours, in which case notice of the time and place shall be given before the time of the adjourned meeting, in the manner specified in Section 7 of this Article III, to the directors who were not present at the time of the adjournment.

Section 13.  Fees and Compensation .  Directors and members of committees may receive such compensation, if any, for their services, and such reimbursement for expenses, as may be fixed or determined by resolution of the Board of Directors.  This Section 13 shall not be construed to preclude any director from serving the corporation in any other capacity as an officer, agent, employee, or otherwise, and receiving compensation for those services.

Section 14.  Removal of Directors .  The entire Board of Directors or any individual director may be removed as provided by law.

Section 15.  Conduct of Meetings .  Directors' meetings shall be presided over by the Chairman of the Board, or, in the absence of the Chairman of the Board, by the President, or in the absence of both such officers, by a director chosen by a majority of the directors present.  The Secretary of the corporation shall act as secretary of the meetings of the Board of Directors.  In case the Secretary shall be absent from any meeting, the presiding officer may appoint any person to act as secretary of the meeting.

ARTICLE IV
Committees

Section 1.  Committees of Directors .  The Board of Directors may, by resolution adopted by a majority of the authorized number of directors, designate one or more committees, each consisting of two or more directors, to serve at the pleasure of the Board of Directors.  The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent member at any meeting of the committee.  Any committee, to the extent provided in the resolution of the Board of Directors, shall have all the authority of the Board of Directors, except with respect to:

(a)  the approval of any action which, under the General Corporation Law of California, also requires shareholders' approval of the outstanding shares;

(b)  the filling of vacancies on the Board of Directors or on any committee;
 
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(c)  the fixing of compensation of the directors for serving on the Board of Directors or on any committee;

(d)  the amendment or repeal of the bylaws or the adoption of new bylaws;

(e)  the amendment or repeal of any resolution of the Board of Directors which by its express terms is not so amendable or repealable;

(f)   a distribution to the shareholders of the corporation, except at a rate or in a periodic amount or within a price range set forth in the Articles of Incorporation or determined by the Board of Directors; or

(g)  the appointment of any other committees of the Board of Directors or the members of such committees.

Section 2.  Meetings and Action of Committees .  Meetings and action of committees shall be governed by, and held and taken in accordance with, the provisions of Article III of these bylaws, Section 5 (place of meetings), 6 (regular meetings), 7 (special meetings and notice), 8 (action without meeting), 9 (quorum), 10 (waiver of notice), 11 (adjournment), and 12 (notice of adjournment), with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the Board of Directors and its members, except that the time of regular meetings of committees may be determined either by resolution of the Board of Directors or by resolution of the committee; special meetings of committees may also be called by resolution of the Board of Directors; and notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee.  The Board of Directors may adopt rules for the government of any committee not inconsistent with the provisions of these bylaws.

ARTICLE V
Officers

Section 1.  Designation .  The officers of the corporation shall be a President, a Secretary and a Chief Financial Officer.  The corporation may also have, at the discretion of the Board of Directors, a Chairman of the Board, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers as may be appointed in accordance with the provisions of Section 3 of this Article.  Any number of offices may be held by the same person.
 
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Section 2.  Election .  The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Section 3 or Section 5 of this Article, shall be chosen by the Board of Directors, and each shall serve at the pleasure of the Board of Directors, subject to the rights, if any, of an officer under any contract of employment approved by the Board of Directors.

Section 3.  Subordinate Officers, etc .  The Board of Directors may appoint, and may empower the President to appoint, such other officers as the business of the corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as are provided in the bylaws or as the Board of Directors may from time to time determine.

Section 4.  Removal and Resignation .  Subject to his or her rights, if any, under any contract of employment, any officer may be removed, either with or without cause by the Board of Directors, at any regular or special meeting thereof, or, except in case of an officer chosen by the Board of Directors, by any officer upon whom such power of removal may be conferred by the Board of Directors.

Any officer may resign at any time by giving written notice to the Board of Directors or to the President, or to the Secretary of the corporation.  Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.  Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.

Section 5.  Vacancies .  A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in the bylaws for regular appointments to such office.

Section 6.  Chairman of the Board .  The Chairman of the Board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may be from time to time assigned to him by the Board of Directors or prescribed by the bylaws.  If there is no President, the Chairman of the Board shall in addition be the chief executive officer of the corporation and shall have the powers and duties prescribed in Section 7 of this Article V.
 
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Section 7.  President .  Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the chief executive officer of the corporation and, subject to the control of the Board of Directors, shall have general supervision, direction and control of the business and officers of the corporation.  The President shall preside at all meetings of the shareholders and, in the absence of the Chairman of the Board, or, if there be none, at all meetings of the Board of Directors.  The President shall be ex officio a member of all the standing committees, including the executive committee, if any.  The President may sign and execute, in the name of the corporation, deeds, mortgages, bonds, notes, contracts and other instruments authorized by the Board of Directors, and, in general, shall have the general powers and duties of management usually vested in the office of president of a corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors or the bylaws.

Section 8.  Vice Presidents .  In the absence or disability of the President, the Vice Presidents, if any, in order of their rank as fixed by the Board of Directors or, if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the President.  The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors or the bylaws, and the President, or the Chairman of the Board.

Section 9.  Secretary .  The Secretary shall keep or cause to be kept, at the principal office or such other place as the Board of Directors may order, a book of minutes of all meetings of directors, committees of directors and shareholders, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice thereof given, the names of those present at directors' meetings, the number of shares present or represented at shareholders' meetings, and the proceedings thereof.

The Secretary shall keep, or cause to be kept, at the principal office or at the office of the corporation's transfer agent, a share register, or a duplicate share register, showing the names of the shareholders and their addresses, the number and classes of shares held by each, the number and date of certificates issued for the same, and the number and date of cancellation of every certificate surrendered for cancellation.

The Secretary shall give notice, or cause notice to be given, of all the meetings of the shareholders and of the Board of Directors of Directors as law or the bylaws require notice to be given, and he shall keep the seal of the corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or by the bylaws.
 
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Section 10.  Chief Financial Officer .  The Chief Financial Officer, who may be designated as the Treasurer, shall keep and maintain, or cause to be kept and maintained, adequate and correct books and accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares.

The Chief Financial Officer shall deposit all monies and other valuables in the name and to the credit of the corporation with such depositaries as may be designated by the Board of Directors.  The Chief Financial Officer shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and directors, whenever they request it, an account of all transactions as Chief Financial Officer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or the bylaws.

Section 11.  Salaries .  The salaries of the officers shall be fixed from time to time by the Board of Directors, and no officer shall be prevented from receiving such salary by reason of the fact that such officer is also a director of the corporation.

ARTICLE VI
Indemnification of Directors, Officers, Employees, and Other Agents

Section 1.  Agents, Proceedings, and Expenses .  For the purposes of this Article, "agent" means any person who is or was a director, officer, employee, or other agent of this corporation, or is or was serving at the request of this corporation as a director, officer, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, or other enterprise, or was a director, officer, employee, or agent of a foreign or domestic corporation which was a predecessor corporation of this corporation or of another enterprise at the request of such predecessor corporation; "proceeding" means any threatened, pending or completed action or proceeding, whether civil, criminal, administrative, or investigative; and "expenses" includes, without limitation, attorneys' fees and any expenses of establishing a right to indemnification under Section 4 or Section 5(c) of this Article.

Section 2.  Actions Other Than by the Corporation .  This corporation shall, to the maximum extent permitted by the California General Corporation Law, indemnify any person who was or is a party, or is threatened to be made a party, to any proceeding (other than an action by or in the right of this corporation) by reason of the fact that such person is or was an agent of this corporation, against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with such proceeding if that person acted in good faith and in a manner that person reasonably believed to be in the best interests of this corporation and, in the case of a criminal proceeding, had no reasonable cause to believe his conduct of was unlawful.  The termination of any proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of this corporation or that the person had reasonable cause to believe that his conduct was unlawful.
 
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Section 3.  Actions by the Corporation .  This corporation shall indemnify any person who was or is a party or is threatened to be made a party, to any threatened, pending or completed action by or in the right of this corporation to procure a judgment in its favor by reason of the fact that person is or was an agent of this corporation, against expenses actually and reasonably incurred by that person in connection with the defense or settlement of that action if that person acted in good faith, in a manner that person believed to be in the best interests of this corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.  No indemnification shall be made under this Section 3:

(a)  In respect of any claim, issue or matter as to which that person shall have been adjudged to be liable to this corporation in the performance of that person's duty to this corporation, unless and only to the extent that the court in which that action was brought shall determine upon application that, in view of all the circumstances of the case, that person is fairly and reasonably entitled to indemnity for the expenses which the court shall determine;

(b)  Of amounts paid in settling or otherwise disposing of a threatened or pending action, with or without court approval; or

(c)  Of expenses incurred in defending a threatened or pending action which is settled or otherwise disposed of without court approval.

Section 4.  Successful Defense by Agent .  To the extent that an agent of this corporation has been successful on the merits in defense of any proceeding referred to in Sections 2 or 3 of this Article, or in defense of any claim, issue or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith.

Section 5.  Required Approval .  Except as provided in Section 4 of this Article, any indemnification under this Article shall be made by this corporation only if authorized in the specific case on a determination that indemnification of the agent is proper in the circumstances because the agent has met the applicable standard of conduct set forth in Sections 2 or 3 of this Article, by:
 
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(a)  A majority vote of a quorum consisting of directors who are not parties to the proceeding;

(b)  Approval by the affirmative vote of a majority of the shares of this corporation entitled to vote represented at a duly held meeting at which a quorum is present or by the written consent of holders of a majority of the outstanding shares entitled to vote.  For this purpose, the shares owned by the person to be indemnified shall not be considered outstanding or entitled to vote thereon; or

(c)  The court in which the proceeding is or was pending, on application made by this corporation or the agent or the attorney or other person rendering services in connection with the defense, whether or not such application by the agent, attorney, or other person is opposed by this corporation.

Section 6.  Advance of Expenses .  Expenses incurred in defending any proceeding may be advanced by this corporation before the final disposition of the proceeding on receipt of an undertaking by or on behalf of the agent to repay the amount of the advance unless it shall be determined ultimately that the agent is entitled to be indemnified as authorized in this Article.

Section 7.  Other Contractual Rights .  Nothing contained in this Article shall affect any right to indemnification to which persons other than directors and officers of this corporation or any subsidiary hereof may be entitled by contract or otherwise.

Section 8.  Limitations .  No indemnification or advance shall be made under this Article, except as provided in Section 4 or Section 5(c), in any circumstance where it appears:

(a)  That it would be inconsistent with a provision of the articles, a resolution of the shareholders, or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or

(b)  That it would be inconsistent with any condition expressly imposed by a court in approving a settlement.
 
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Section 9.  Insurance .  Upon and in event of a determination by the Board of Directors of this corporation to purchase such insurance, this corporation shall purchase and maintain insurance on behalf of any agent of the corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such whether or not this corporation would have the power to indemnify the agent against that liability under the provisions of this section.

Section 10.  Fiduciaries of Corporate Employee Benefit Plan .  This Article does not apply to any proceeding against any trustee, investment manager, or other fiduciary of an employee benefit plan in that person's capacity as such, even though that person may also be an agent of the corporation as defined in Section 1 of this Article.  Nothing contained in this Article shall limit any right to indemnification to which such a trustee, investment manager, or other fiduciary may be entitled by contract or otherwise, which shall be enforceable to the extent permitted by applicable law other than this Article.

ARTICLE VII
Records and Reports

Section 1.  Maintenance and Inspection of Share Register .  The corporation shall keep at its principal executive office, or at the office of its transfer agent or registrar, if either be appointed and as determined by resolution of the Board of Directors, a record of its shareholders, giving the names and addresses of all shareholders and the number and class of shares held by each shareholder.

A shareholder or shareholders of the corporation holding at least 5% in the aggregate of the outstanding voting shares of the corporation may (i) inspect and copy the records of shareholders' names and addresses and shareholdings during usual business hours on 5 days prior written demand on the corporation, and (ii) obtain from the transfer agent of the corporation, on written demand and on the tender of such transfer agent's usual charges for such list, a list of the shareholders' names and addresses, who are entitled to vote for the election of directors, and their shareholdings, as of the most recent record date for which that list has been compiled or as of a date specified by the shareholder after the date of demand.  This list shall be made available to any such shareholder by the transfer agent on or before the later of 5 days after the demand is received or the date specified in the demand as the date as of which the list is to be compiled.  The record of shareholders shall also be open to inspection on the written demand of any shareholder or holder of a voting trust certificate, at any time during usual business hours, for a purpose reasonably related to the holder's interests as a shareholder or as the holder of a voting trust certificate.  Any inspection and copying under this Section 1 may be made in person or by an agent or attorney of the shareholder or holder of a voting trust certificate making the demand.
 
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Section 2.  Maintenance and Inspection of Bylaws .  The corporation shall keep at its principal executive office, or, if its principal executive office is not in the State of California, at its principal business office in this state, the original or a copy of the bylaws as amended to date, which shall be open to inspection by the shareholders at all reasonable times during office hours.  If the principal executive office of the corporation is outside the State of California and the corporation has no principal business office in this state, the Secretary shall, upon the written request of any shareholder, furnish to that shareholder a copy of the bylaws as amended to date.

Section 3.  Maintenance and Inspection of Other Corporate Records .  The accounting books and records and minutes of proceedings of the shareholders and the Board of Directors and any committee or committees of the Board of Directors shall be kept at such place or places designated by the Board of Directors, or, in the absence of such designation, at the principal executive office of the corporation.  The minutes shall be kept either in written form or in any other form capable of being converted into written form.  The minutes and accounting books and records shall be open to inspection upon the written demand of any shareholder or holder of a voting trust certificate, at any reasonable time during usual business hours, for a purpose reasonably related to the holder's interests as a shareholder or as the holder of a voting trust certificate.  The inspection may be made in person or by an agent or attorney, and shall include the right to copy and make extracts.  These rights of inspection shall extend to the records of each subsidiary corporation of the corporation.

Section 4.  Inspection by Directors .  Every director shall have the absolute right at any reasonable time to inspect all books, records and documents of every kind and the physical properties of the corporation and each of its subsidiary corporations.  This inspection by a director may be made in person or by an agent or attorney and the right of inspection includes the right to copy and make extracts of documents.

Section 5.  Annual Report to Shareholders .  The annual report to shareholders referred to in Section 1501 of the California General Corporation Law is expressly dispensed with, but nothing herein shall be interpreted as prohibiting the Board of Directors from issuing annual or other periodic reports to the shareholders of the corporation as they consider appropriate.

Section 6.  Financial Statements .  A copy of any annual financial statement and any income statement of the corporation for each quarterly period of each fiscal year, and any accompanying balance sheet of the corporation as of the end of each such period, that has been prepared by the corporation shall be kept on file in the principal executive office of the corporation for 12 months and each such statement shall be exhibited at all reasonable times to any shareholder demanding an examination of any such statement or a copy shall be mailed to any such shareholder.
 
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If a shareholder or shareholders holding at least 5% of the outstanding shares of any class of stock of the corporation makes a written request to the corporation for an income statement of the corporation for the three-month, six-month or nine-month period of the then-current fiscal year ended more than 30 days before the date of the request, and a balance sheet of the corporation as of the end of that period, the Chief Financial Officer shall cause that statement to be prepared, if not already prepared, and shall deliver personally or mail that statement or statements to the person making the request within 30 days after the receipt of the request.  If the corporation has not sent to the shareholders its annual report for the last fiscal year, this report shall likewise be delivered or mailed to the shareholder or shareholders within 30 days after the request.

The corporation shall also, on the written request of any shareholder, mail to the shareholder a copy of the last annual, semiannual or quarterly income statement which it has prepared, and a balance sheet as of the end of that period.

The quarterly income statements and balance sheets referred to in this section shall be accompanied by the report, if any, of any independent accountants engaged by the corporation or the certificate of an authorized officer of the corporation stating that the financial statements were prepared without audit from the books and records of the corporation.

Section 7.  Annual Statement of General Information .  The corporation shall annually file with the Secretary of State of the State of California, on the prescribed form, setting forth the authorized number of directors, the names and complete business or residence addresses of all incumbent directors, the names and complete business or residence addresses of the Chief Executive Officer, Secretary, and Chief Financial Officer, the street address of its principal executive office or principal office in this state, and the general type of business constituting the principal business activity of the corporation for the purpose of service of process, all in compliance with Section 1502 of the California Corporations Code.
 
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ARTICLE VIII
General Corporate Matters
                                
Section 1.  Record Date for Purposes Other Than Notice and Voting .  For purposes of determining the shareholders entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise any rights in respect of any other lawful action (other than action by shareholders by written consent without a meeting), the Board of Directors may fix, in advance, a record date, which shall not be more than 60 days before any such action, and in that case only shareholders of record on the date so fixed are entitled to receive the dividend, distribution, or allotment of rights or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date so fixed, except as otherwise provided in the California General Corporation Law.

If the Board of Directors does not so fix a record date, the record date for determining shareholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the applicable resolution or the 60th day before the date of that action, whichever is later.

Section 2.  Checks, Drafts, Evidences of Indebtedness .  All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the Board of Directors.

Section 3.  Corporation Contracts and Instruments; How Executed .  The Board of Directors, except as otherwise provided in these bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the corporation, and this authority may be general or confined to specific instances; and, unless so authorized or ratified by the Board of Directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.

Section 4.  Certificates for Shares .  A certificate or certificates for shares of the capital stock of the corporation shall be issued to each shareholder when any of these shares are fully paid, and the Board of Directors may authorize the issuance of certificates or shares as partly paid provided that these certificates shall state the amount of the consideration to be paid for them and the amount paid.  All certificates shall be signed in the name of the corporation by the Chairman of the Board, or Vice Chairman of the Board, or the President, or a Vice President, and by the Chief Financial Officer or an Assistant Treasurer or the Secretary or any Assistant Secretary, certifying the number of shares and the class or series of shares owned by the shareholder.  Any or all of the signatures on the certificate may be facsimile.  In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed on a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were an officer, transfer agent or registrar at the date of issue.
 
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Section 5.  Lost Certificates .  Except as provided in this Section 5, no new certificates for shares shall be issued to replace an old certificate unless the latter is surrendered to the corporation and canceled at the same time.  The Board of Directors may, in case any share certificate or certificate for any other security is lost, stolen or destroyed, authorize the issuance of a replacement certificate on such terms and conditions as the Board of Directors may require, including provision for indemnification of the corporation secured by a bond or other adequate security sufficient to protect the corporation against any claim that may be made against it, including any expense or liability, on account of the alleged loss, theft or destruction of the certificate or the issuance of the replacement certificate.

Section 6.  Representation of Shares of Other Corporations .  The Chairman of the Board, the President, or any Vice President, or any other person authorized by resolution of the Board of Directors or by any of the foregoing designated officers, is authorized to vote on behalf of the corporation any and all shares of any other corporation or corporations, foreign or domestic, standing in the name of the corporation.  The authority granted to these officers to vote on behalf of or represent the corporation in any other corporation or corporations may be exercised by any of these officers in person or by any person authorized to do so by a proxy duly executed by these officers.

Section 7.  Construction and Definitions .  Unless the context requires otherwise, the general provisions, rules of construction and definitions in the California General Corporation Law shall govern the construction of these bylaws.  Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, the use of the masculine includes the feminine and neuter, and the term "person" includes both a corporation and a natural person.
 
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ARTICLE IX
Amendments

Section 1. Amendment by Shareholders . New bylaws may be adopted or these bylaws may be amended or repealed by the vote or written consent of holders of a majority of the outstanding shares entitled to vote, provided, however, that, if the articles of incorporation of the corporation set forth the number of authorized directors of the corporation, the authorized number of directors may be changed only by an amendment of the articles of incorporation.
 
Section 2.  Amendment by Directors .  Subject to the rights of the shareholders as provided in Section 1 of this Article IX, bylaws, other than a bylaw or an amendment of a bylaw changing the authorized number of directors, may be adopted, amended or repealed by the Board of Directors.
 

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CERTIFICATE OF SECRETARY
OF
ONCOCYTE CORPORATION
A California Corporation

I, the undersigned, do hereby certify:

1.    That I am the Secretary of the above-named California corporation.

2.    That the foregoing bylaws, consisting of 20 pages, constitute the bylaws of said corporation as duly adopted by the written consent of the Incorporator thereof dated October 8, 2009.

IN WITNESS WHEREOF, I have hereunto subscribed my name this 8 th day of October 2009.

 
/s/ Steven A. Seinberg
 
 
 Steven A. Seinberg, Secretary
 
 
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AMENDMENT OF BYLAWS
OF
ONCOCYTE CORPORATION
Adopted March 31, 2015

Section 2 of Article III of the Bylaws is amended in its entirety to read as follows:

ARTICLE III
Directors

Section 2. Number and Qualification of Directors . The authorized number of directors shall be not less than four (4) nor more than seven (7) and, and the exact number of directors shall be fixed, within the limits specified, by approval of the board of directors. After the issuance of shares, the provisions of this bylaw may be changed only by a duly adopted amendment adopted by the vote or written consent of holders of a majority of the outstanding shares entitled to vote, in accordance with the provisions of Section 212 of the California Corporations Code.
 
 
 


Exhibit 10.1
 
SHARED FACILITIES AND SERVICES AGREEMENT

This Agreement is made as of October 8, 2009 (the Effective Date ) by and between BioTime, Inc. ( BioTime ) and OncoCyte Corporation ( OncoCyte ).

Recitals

A. OncoCyte is a newly organized corporation that needs office and laboratory space and equipment, and the services of research, financial, management, and administrative personnel support;

B. BioTime subleases certain laboratory, office, and related work space at 1301 Harbor Bay Parkway, Suite 100, Alameda, California (the Premises ) and has surplus capacity at the Premises;

C. BioTime has employees and contractors who provide research, financial, management, and administrative services and is willing to make a portion of their services available to OncoCyte.

1.             Office, Laboratory and Work Space .

(a)              BioTime agrees to permit OncoCyte to use the Premises concurrently with BioTime for the conduct of OncoCyte’s business operations, but only to the extent that (a) the use is a business operation permitted to be conducted by BioTime under the sublease of the Premises, (b) OncoCyte uses the Premises in compliance with all applicable laws, ordinances, and regulations, (c) OncoCyte uses the Premises in compliance with any and all rules and regulations of the sublandlord and master lease landlord under BioTime’s sublease of the Premises, (d) OncoCyte’s use of the Premises does not interfere with BioTime’s use of the Premises.

(b)              BioTime and OncoCyte agree that the permission to use the Premises granted under this Agreement is in the nature of a license only and is not a sublease or assignment of the sublease under which BioTime occupies the Premises, and that OncoCyte shall not obtain any rights, and is not assuming any obligations, under that sublease.

(c)              The use of the Premises by OncoCyte shall be in a lawful, careful, safe, and proper manner, and OncoCyte shall not do or permit anything to be done in or about the Premises that would increase the rate or affect any fire or other insurance covering the Premises.  OncoCyte shall not commit nor suffer any waste on the Premises.

(d)              BioTime does not represent or warrant that the Premises may be used for any particular use or purpose, and OncoCyte has made OncoCyte’s own determination that the Premises may be lawfully used for OncoCyte’s purposes.
 

(e)               OncoCyte shall, at its sole cost and expense, comply with all laws, statutes, ordinances, and governmental rules, regulations, or requirements now in force or that may hereafter be in force, and with the requirements of any board of fire insurance underwriters or other similar bodies now or hereafter constituted, relating to, or affecting OncoCyte’s use of the Premises.

(f)               OncoCyte shall, at its sole cost and expense,  promptly repair any damage to the Premises caused by any act or omission of OncoCyte or its employees, agents, invitees, licenses, or contractors, including any acts or omissions of BioTime employees, contractors, and agents arising in the course of performing services for or conducting the business of OncoCyte.  Any and all repairs effected by OncoCyte shall be performed in a professional workmanlike manner, by licensed contractors, in compliance with all applicable statutes, codes, rules and regulations, and OncoCyte or OncoCyte’s contractors shall obtain all permits and approvals of government agencies required by applicable laws in connection therewith.

(g)              If BioTime deems any repairs required to be made by OncoCyte necessary, it may demand that OncoCyte make them, and if OncoCyte refuses or neglects to commence such repairs and to complete them with reasonable dispatch, BioTime may make or cause such repairs to be made.  If BioTime makes or causes repairs to be made, BioTime shall not be responsible to OncoCyte for any loss or damage that may accrue to OncoCyte’s business by reason of the repair work, and OncoCyte shall, on demand, immediately pay to BioTime the cost of the repairs.  OncoCyte waives the provisions of Sections 1941 and 1942 of the Civil Code of the State of California and all other statutes or laws permitting repairs by a lessee at the expense of a lessor or to terminate a lease by reason of the condition of the Premises.  OncoCyte shall keep the Premises free from any liens arising out of any work performed, materials furnished, or obligations incurred by OncoCyte.

(h)              OncoCyte shall not make or install any alterations, improvements, additions, or fixtures that affect the exterior or interior of the Premises or any structural, mechanical, or electrical component of the Premises, or mark, paint, drill, or in any way deface any floors, walls, ceilings, partitions, or any wood, stone, or iron work.

(i)                Under no circumstances shall OncoCyte bring onto the Premises any substances or materials that are characterized or defined as “hazardous substances” or “hazardous materials” under any federal or state law or regulation pertaining to the release of substances into the environment, except for cleaning materials, paints, and solvents that are used, stored, and disposed of by OncoCyte in full compliance with applicable laws.
 
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2.            Equipment and Supplies .  BioTime agrees to permit OncoCyte to use BioTime’s office equipment, laboratory equipment, furniture, laboratory supplies, and general office supplies to the extent that such use does not interfere with the use by the employees, contractors, and agents of BioTime and other BioTime subsidiaries in the course of their business.  BioTime shall have no obligation to obtain or to provide OncoCyte with any additional equipment, furniture, or supplies.  If OncoCyte requires and obtains equipment, furniture, and supplies for its own use it may locate the same at the Premises subject to the conditions and limitations stated in Section 1 of this Agreement, and subject to the additional condition that BioTime shall have the right and sole discretion to (a) determine where in the Premises OncoCyte may locate OncoCyte’s furniture, equipment, and supplies, and (b) preclude OncoCyte from bringing onto or locating any furniture, supplies, or equipment in the Premises if  BioTime determines that it would in any way interfere with BioTime’s use of the Premises, violate any applicable laws, ordinances, and regulations, violate or conflict with any provisions of BioTime’s sublease of the Premises or any rules and regulations of the sublandlord or master landlord under BioTime’s sublease of the Premises, conflict with any term or condition of any policy of casualty or liability insurance held by BioTime, or pose a hazard or other risk to persons or property.

3.             Utilities .  OncoCyte shall be responsible to determine that there is sufficient Utilities capacity in the Premises for purposes of conducting OncoCyte’s use.  Utilities includes electricity, gas, heat, air conditioning, hot and cold domestic water, telephone, scavenger service, garbage removal, sewerage, and other similar services used on, in, or in connection with the Premises.  BioTime does not represent the availability or quantity of any Utilities in the Premises, and is not responsible for any interruption of any Utility service.

4.             Services.

(a)              BioTime shall provide basic accounting, billing, bookkeeping, payroll, treasury, collection of accounts receivable (excluding the institution of legal proceedings or taking of any other action to collect accounts receivable), payment of accounts payable, and other similar administrative services (the Administrative Services ) to OncoCyte.  BioTime may also provide the services of attorneys, accountants, and other professionals who may also provide professional services to BioTime and its other subsidiaries.

(b)               BioTime shall also provide OncoCyte with the services of its laboratory and research personnel, including BioTime employees and contractors, for the performance of research and development work for OncoCyte at the Premises (the Laboratory Services ).  BioTime employees and contractors who perform Laboratory Services for OncoCyte shall enter into agreements containing customary provisions requiring the employees and contractors to (a) maintain the confidentiality and not to disclose OncoCyte trade secrets and other confidential information, and (b) assign to OncoCyte all rights to any inventions and discoveries made by such employees and contractors in the course of performing Laboratory Services for OncoCyte.

(c)               BioTime may, at the request of OncoCtye, provide OncoCyte the services of BioTime employees and contractors, including but not limited to executive officers, for matters other than Administrative Services and Laboratory Services ( Other Services ), but BioTime shall not be obligated to do so.
 
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(d)               Administrative Services, Laboratory Services, and Other Services (collectively, Services ) shall be provided by BioTime employees or contractors engaged by BioTime to provide such Services for the operation of BioTime’s own business.  BioTime shall not be obligated to hire any additional employees or engage the services of any additional contractors to provide Services to OncoCyte.  Nothing in this Agreement shall preclude OncoCyte from hiring employees and engaging contractors directly for its own account and at its own cost and expense.

(e)              OncoCyte shall be responsible for cooperating with BioTime’s employees and contractors in such a manner as may be reasonably required in order for the Services to be performed.

(f)               The Services shall be provided at the direction of OncoCyte; provided, that OncoCyte shall not request or direct any BioTime employee or contractor to provide any Services or to take any other act that would violate any federal, state, or municipal law, statute, ordinance, rule or regulation.

(g)               BioTime shall not be liable to OncoCyte for any loss or damages of any kind caused by, arising from, or in connection with (i) the performance of Services performed by BioTime personnel, or the failure of any BioTime employee, contractor, or agent to perform any Services, or (ii) any delay, error, or omission by any BioTime employee, contractor, or agent in the performance of Services performed by BioTime personnel, except to the extent such loss or damage is the result of fraud, gross negligence or willful misconduct by an BioTime employee, contractor, or agent.

5.             Use Fees.

(a)               OncoCyte shall pay BioTime the fees provided in this Section for the use of the Premises, equipment, supplies, professional services (such as the services of attorneys, accountants, and consultants), and for the Services provided or agreed to be provided by BioTime under this Agreement.  For each billing period, BioTime shall equitably prorate and allocate its Employee Costs, Equipment Costs, Insurance Costs, Lease Costs, Professional Costs, Software Costs, Supply Costs, and Utilities Costs, between BioTime and OncoCyte based upon actual documented use and cost by or for OncoCyte or upon proportionate usage by BioTime and OncoCyte, as reasonably estimated by BioTime.  OncoCyte shall pay 105%   of the allocated costs (the Use Fee ).  The allocated cost of BioTime employees and contractors who provide Services shall be based upon records maintained of the number of hours of such personnel devoted to the performance of Services.

(b)                The Use Fee shall be determined and invoiced to OncoCyte on a quarterly basis for each calendar quarter of each calendar year (such quarterly periods are sometimes referred to in this Agreement as “billing periods”).  If this Agreement terminates prior to the last day of a billing period, the Use Fee shall be determined for the number of days in the billing period elapsed prior to the termination of this Agreement.  Each invoice shall be payable in full by OncoCyte with in 30 days after receipt.  Any invoice or portion thereof not paid in full when due shall bear interest at the rate of 15% per annum until paid, unless the failure to make a payment is due to any inaction or delay in making a payment by BioTime employees from OncoCyte funds available for such purpose, rather than from the unavailability of sufficient funds legally available for payment or from an act, omission, or delay by any OncoCyte employee or agent.
 
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(c)              In addition to the Use Fees, OncoCyte shall reimburse BioTime for any out of pocket costs incurred by BioTime for the purchase of office supplies, laboratory supplies, and other goods and materials and services for the account or use of OncoCyte, provided that invoices documenting such costs are delivered to OncoCyte with each invoice for the Use Fee.  Notwithstanding this paragraph, BioTime shall have no obligation to purchase or acquire any office supplies or other goods and materials or any services for OncoCyte, and if any such supplies, goods, materials or services are obtained for OncoCyte, BioTime may arrange for the suppliers thereof to invoice OncoCyte directly.

(d)               Employee Costs means the salaries, wages, health insurance benefits, FICA, payroll taxes, workers compensation insurance premiums, and similar costs payable by BioTime to or on account of its employees and contractors who perform Services for OncoCyte under this Agreement during an applicable billing period, but excluding stock option, stock purchase, and similar equity participation plans.  Equipment Costs means all costs and expenses incurred by BioTime in acquiring, leasing, installing, maintaining, insuring, repairing, and disposing of any laboratory, production, and office equipment, fixtures, and furnishings used by OncoCyte or used by BioTime in the performance of Services.  Insurance Costs means all insurance premiums of any kind incurred or paid by BioTime for casualty insurance policies that insure BioTime and its subsidiaries, including OncoCyte, from the loss of or damage to the Premises, equipment, fixtures goods, supplies, and other personal property of BioTime (except to the extent such premiums are included in Lease Costs) that may be used by OncoCyte or by BioTime in the performance of Services, and liability coverage policies that insure BioTime and its subsidiaries, including OncoCyte, from liability of any kind to third parties (except to the extent such premiums are included in Lease Costs).  Lease Costs means all of BioTime’s costs and expenses of leasing or subleasing the Premises, including all base rent, taxes, common area or other expenses, insurance and other costs payable by BioTime to the lessor of the Premises under the sublease of the Premises, but excluding (a) any repairs not required to be effected or paid for by OncoCyte under any other provision of this Agreement, and (b) any alterations or improvements effected by BioTime for the exclusive use of BioTime and its subsidiaries other than OncoCyte.  Professional Costs means all costs and expenses incurred by BioTime for the services of independent accountants, attorneys, and other consultants who provide professional or consulting services for the benefit of OncoCyte.  Software Costs means all costs and expenses, including but not limited to license fees, incurred by BioTime to acquire and use any computer software or program of any kind that is used by OncoCyte or by BioTime in the performance of Services.  Supply Costs means all costs and expenses incurred by BioTime for the purchase and disposal of goods and materials of any kind, to the extent used in the performance of Services or used by OncoCyte employees or contractors.  Utilities Costs means all costs and expenses incurred by BioTime for the use or availability of Utilities during an applicable billing period.
 
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6.             Indemnification.

(a)              OncoCyte shall defend, indemnify, and hold harmless BioTime, BioTime’s shareholders, directors, officers, employees, and agents (collectively, the Indemnified Parties ) against and from any and all claims arising from OncoCyte’s use of the Premises, or from any activity, work, or other thing done or permitted by OncoCyte on the Premises, including all activities, work, and services performed by BioTime employees, contractors, and agents for OncoCyte.  OncoCyte shall further defend, indemnify, and hold harmless the Indemnified Parties against and from any and all claims arising from any breach or default in the performance of any obligation on OncoCyte’s part to be performed under the terms of this Agreement, or arising from any act or omission (including, but not limited to negligent acts or omissions) of OncoCyte, or of any officer, agent, employee, contractor, guest, or invitee of OncoCyte acting in such capacity.   The indemnity provided by this section shall include indemnification from and against all costs, attorneys’ fees, expenses, and liabilities incurred in connection with or arising from any such claim or any action or proceeding brought thereon; and in any suit, action, or proceeding brought against any of the Indemnified Parties by reason of any such claim, OncoCyte, upon notice from any of the Indemnified Parties, shall defend the same at OncoCyte’s expense by counsel satisfactory to the Indemnified Parties.  OncoCyte, as a material part of the consideration to BioTime, hereby assumes all risk of damage to property or injury to persons in, upon, or about the Premises, from any cause other than BioTime’s wilful malfeasance or sole gross negligence.

(b)               BioTime shall not be liable for any injury to or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, or rain that may leak from any part of the Premises or from the pipes, appliances, or plumbing works therein or from the roof, street, or subsurface, or from any other place unless solely caused by or solely due to the gross negligence of BioTime.  BioTime and its agents and the other Indemnified Parties shall not be liable for interference with the light or other incorporeal hereditament, loss of business by OncoCyte, or any latent defect in the Premises, any equipment, furnishings, materials, or supplies.  OncoCyte shall give prompt notice to BioTime in case of fire or accidents in the Premises or of defects therein or in the fixtures, equipment, furniture, materials or supplies belonging to BioTime and used by OncoCyte.

(c)              OncoCyte shall be solely responsible for and shall indemnify, defend, and hold the Indemnified Parties and the owner of the Premises and each partner, shareholder, member, trustee, employee and agent of the owner or the Premises (collectively, the Owner Indemnified Parties ) harmless from any against any claim, loss, damage, cost, expense, liability, or cause of action directly or indirectly arising out of the use, generation, manufacture, storage, treatment, release, threatened release, discharge, disposal, transportation, or presence of any oil, gasoline, petroleum products, flammable explosives, asbestos, urea formaldehyde insulation, radioactive materials, hazardous wastes, toxic or contaminated substances, or similar materials, including, without limitation, any substances which are hazardous substances, hazardous wastes, hazardous materials, or toxic substances under applicable environmental laws, ordinances, or regulations (collectively, Hazardous Materials ) caused directly or indirectly by OncoCyte, its employees, agents, contractors, invitees, or assigns (other than any BioTime employees or agents performing BioTime rather than OncoCyte business) in, on, or under any of the Premises, including, without limitation: (i) all consequential damages; (ii) the costs of any required or necessary repair, cleanup, or detoxification of the Premises and the building and surrounding land in which the Premises are located,  and the preparation and implementation of any closure, remedial, or other required plans whether required under any Hazardous Materials Laws or otherwise; and (iii) all court costs, including reasonable attorneys’ fees, paid or incurred by BioTime, any other Indemnified Party, or any Owner Indemnified Party in connection with such claim.
 
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7.             Term; Termination .

(a)              This Agreement shall commence on the Effective Date and shall terminate on December 31, 2012, provided that, unless otherwise terminated under another provision of this Agreement, the term of this Agreement shall automatically be renewed and the termination date shall be extended for an additional year each year after December 31, 2012, unless either party gives the other party written notice stating that this Agreement shall terminate on December 31 of that year.

(b)               Notwithstanding paragraph (a) of this Section 7, either party may terminate this Agreement immediately upon the occurrence of a Default by the other party.  A party shall be in  Default if that party (i) fails to pay when due the Use Fee or any other sum due under this Agreement, or fails to perform any other obligation under this Agreement, and such failure continues for a period of 5 days after written notice from the party seeking to terminate this Agreement; (ii) becomes the subject of any order for relief in a proceeding under any Debtor Relief Law (as defined below); (iii) becomes unable to pay, or admits in writing the party’s inability to pay, its debts as they mature; (iv) makes an assignment for the benefit of creditors; (v) applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitation, or similar officer for the party or for all or any part of the party’s property or assets, or any such officer is appointed for such party or any part of its assets without the party’s consent and such appointment is not dismissed or discharged within 60 calendar days; (vi) institutes or consents to any proceeding under any Debtor Relief Law with respect to the party or all or any part of the party’s property or assets, (vii) becomes subject to any proceeding under any Debtor Relief Law without the consent of the party if such case or proceeding continues undismissed or unstayed for 60 calendar days; or (viii) dissolves or liquidates or takes any action to dissolve or liquidate.  As used in this Agreement, the term Debtor Relief Law shall mean the Bankruptcy Code of the United States of America, as amended, or any other similar debtor relief law affecting the rights of creditors generally.
 
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(c)              The obligations of OncoCyte under Sections 5 and 6 and to pay for any repairs of the Premises required to be paid by OncoCyte under this Agreement shall survive termination of this Agreement.

8.             No Third Party Beneficiaries.   The parties to this Agreement are BioTime and OncoCyte, and no other person or entity, whether a partner, member, shareholder, officer, director, employee, contractor, agent, or business invitee of OncoCyte or otherwise, shall have any rights or be entitled to any benefits under this Agreement, except for the rights of Indemnified Parties and Owner Indemnified Parties under Section 6.

9.            Characterization of Relationship .  It is the intent of the parties that the business relationship created by this Agreement, and any related documents is solely that of a commercial agreement between BioTime and OncoCyte and has been entered into by both parties in reliance upon the economic and legal bargains contained in this Agreement.  None of the covenants contained in this Agreement is intended to create a partnership between BioTime and OncoCyte, to make them joint venturers, to make either party an agent, legal representative, partner, subsidiary, or employee of the other party or to make either party in any way responsible for the debts, obligations, or losses of the other party.

10.           Binding on Successors and Assigns.  This Agreement shall be binding on each party and the party’s successors and assigns.

11.           Integration.  This Agreement constitutes all of the understandings and agreements existing between the parties concerning the subject of this Agreement and the rights and obligations created under it.  Neither party has made or relied upon any agreement, warranty, representation, promise, or statement, whether oral or written, not expressly included in this Agreement.

12.          Waivers, Delays, and Omissions.  One or more waivers, consents, or approvals by any party of any covenant, condition, act, or breach under this Agreement shall not be construed as a waiver, consent, or approval of any subsequent condition, covenant, act, or breach or as a consent or approval to the same or any other covenant or condition.  This Agreement and any term of this Agreement may be amended, discharged, or terminated only by a written instrument signed by the parties against whom enforcement of such amendment, discharge, or termination is sought.  No delay or omission to exercise any right, power, or remedy accruing to any party upon any breach or default of the other party under this Agreement shall impair any such right, power, or remedy of the party not in breach or default.

13.          References.  References in this Agreement to sections, paragraphs, subparagraphs, and exhibits are references to sections, paragraphs, and subparagraphs in this Agreement and exhibits attached to this Agreement unless specified otherwise.
 
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14.          Section Headings .  Section headings are for the convenience of the parties and do not form a part of this Agreement.

15.           Construction.  The parties agree that this Agreement is a negotiated agreement, with each party free to review and negotiate each section of the Agreement and otherwise clarify all sections of the Agreement that appear to the party (at the time of signing) to be ambiguous or unclear.  Both parties shall be deemed to be the drafting parties, and the rules of construction to the effect that any ambiguities are to be resolved against the drafting party or parties shall not be employed in the interpretation of this Agreement.

16.           Unenforceable Provisions .  If all or part of any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, the invalidity, illegality, or unenforceability shall not affect any other provisions, and this Agreement shall be equitably construed as if it did not contain the invalid, illegal, or unenforceable provision.

17.          Attorneys’ Fees .   It is expressly agreed that if this Agreement is referred to an attorney to collect any amount due under this Agreement, or to enforce or protect any rights conferred upon BioTime by this Agreement OncoCyte promises and agrees to pay on demand all costs, including without limitation, reasonable attorneys’ fees, incurred by BioTime in the enforcement of BioTime’s rights and remedies under this Agreement.  In the event an action is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such action shall be entitled to an award of its attorneys’ fees and costs incurred in such action, including any fees and costs incurred in any appeal and in any collection effort.

IN WITNESS WHEREOF the parties have executed this Agreement as of the Effective Date.

BioTime, Inc.
 
     
By:
/s/ Michael D. West
 
 
Michael D West,
 
 
Chief Executive Officer
 
     
OncoCyte Corporation
 
     
By:
/s/ Robert W. Peabody
 
 
Robert W. Peabody,
 
 
Senior Vice President and
 
 
Chief Operating Officer
 
 
 
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Exhibit 10.2
 
ONCOCYTE CORPORATION
2010 STOCK OPTION PLAN

ARTICLE I
GENERAL

1.         PURPOSE

This OncoCyte Corporation 2010 Stock Option Plan (the “Plan”) is intended to increase incentive and to encourage stock ownership on the part of selected key officers, directors, employees, consultants, professionals, and other individuals whose efforts may aid OncoCyte Corporation, a California corporation (the “Company”) or any other corporations that are or which may become subsidiaries or a parent of the Company.  Except where the context obviously requires otherwise, as used in this Plan, the term “Company” includes OncoCyte Corporation, a California corporation, and any corporation that is or becomes a parent or subsidiary, as defined in Section 425 of the Internal Revenue Code of 1986, as amended (the “Code”), of OncoCyte Corporation.  It is intended that certain options granted pursuant to the Plan shall constitute incentive stock options within the meaning of Section 422(b) of the Code and that certain other options granted pursuant to the Plan shall not constitute incentive stock options (“nonqualified stock options”).

2.          ADMINISTRATION

The Plan shall be administered by the Company’s Board of Directors (the “Board”) or, in the discretion of the Board, by a committee (the “Committee”) of not less than two members of the Board.  The Committee’s interpretation and construction of any term or provision of the Plan or of any option granted under the Plan shall be final, unless otherwise determined by the Board, in which event such determination by the Board shall be final.  The Committee may from time to time adopt rules and regulations for carrying out this Plan and, subject to the provisions of this Plan, may prescribe the form or forms of the instruments evidencing any option granted under this Plan.  No member of the Committee shall be liable for any action or determination made in good faith with respect to the Plan or any option granted, or with respect to any shares sold under any restricted stock purchase agreement, under the Plan.

Subject to the provisions of this Plan, the Board or the Committee shall have full and final authority in its discretion to select the eligible persons to whom options are granted or shares are sold under restricted stock purchase agreements, to grant such options and to sell shares as provided in this Plan, to determine the number of shares to be subject to options or sold pursuant to restricted stock purchase agreements, to determine the exercise prices of options or purchase prices of shares under restricted stock purchase agreements, the terms of exercise of options, expiration dates of options, and other pertinent terms and provisions of options and restricted stock purchase agreements.  The Board may delegate to the Committee the power to make all determinations with respect to the Plan, or may delegate to the Committee only certain aspects of Plan administration, such as selecting the eligible persons to whom options will be granted, or decisions concerning the timing, pricing, and amount of a grant or award of options or sale of shares under restricted stock purchase agreements.
 

3.         ELIGIBILITY

Subject to Section 2 of this Article I, the persons who shall be eligible to receive options or to purchase shares under restricted stock purchase agreements under the Plan shall be such officers, employees, directors, consultants, professionals, and independent contractors of the Company as the Board of Directors or the Committee may select.  Eligible persons who are not also salaried employees of the Company shall be eligible to receive nonqualified stock options (but such persons shall not be eligible to receive incentive stock options).

4.          SHARES OF STOCK SUBJECT TO THE PLAN

The shares that may be issued under the Plan shall be authorized and unissued or reacquired common stock, no par value, of the Company (the “Shares”).  The aggregate number of Shares which may be issued under the Plan shall not exceed 4,000,000, unless an adjustment is required in accordance with Article III.

5.          AMENDMENT OF THE PLAN

The Board may, insofar as permitted by law, from time to time, suspend or discontinue the Plan or revise or amend it in any respect whatsoever, except that no such amendment shall alter or impair or diminish any rights or obligations under any option theretofore granted or under any restricted stock purchase agreement executed under the Plan, without the consent of the person to whom such option was granted or Shares were sold, except as permitted under Section 8 of this Article I.  Without further shareholder approval, no such amendment shall increase the number of shares subject to the Plan (except as authorized by Article III), change the designation in Section 3 of Article I of the class of persons eligible to receive options or purchase Shares under the Plan, extend the term during which options may be exercised, or extend the final date upon which options under the Plan may be granted or Shares may be sold under restricted stock purchase agreements.

6.          APPROVAL OF SHAREHOLDERS

All options granted under the Plan before the Plan is approved by affirmative vote of the holders of a majority of the voting shares of the Company present and eligible to vote at the next meeting of shareholders of the Company, or any adjournment thereof, shall be subject to such approval.  No option granted hereunder may become exercisable unless and until such approval is obtained.
 
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7.          TERM OF PLAN

Options may be granted and Shares may be sold under restricted stock purchase agreements under the Plan until June 1, 2020, the date of termination of the Plan.  Notwithstanding the foregoing, each option granted under the Plan shall remain in effect until such option has been exercised or terminated in accordance with its terms and the terms of the Plan.

8.         LISTING, REGISTRATION, QUALIFICATION, AND CONSENTS

All options granted under the Plan shall be subject to the requirement that, if at any time the Board or the Committee shall determine, in its discretion, that the listing, registration or qualification of the shares subject to options granted under the Plan, upon any securities exchange or under any state or federal law, or the consent or approval of any government regulatory body, is necessary or desirable as a condition of, or in connection with, the granting of such option or the issuance, if any, or purchase of shares in connection therewith, such option may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board or the Committee.  Furthermore, if the Board or the Committee determines that any amendment to any option (including, but not limited to, an increase in the exercise price) is necessary or desirable in connection with the registration or qualification of any of its shares under any state securities or “blue sky” law, then the Board or the Committee shall have the unilateral right to make such changes without the consent of the optionee.

9.          NONASSIGNABILITY

Nonqualified options shall be transferable (i) by will, by the laws of descent and distribution, by instrument to an inter vivos or testamentary trust in which the nonqualified options are to be passed to beneficiaries upon the death of the optionee or (ii) to the extent and in the manner authorized by the Board or Committee by gift to members of the optionee’s immediate family.  Immediate family means a transferee as permitted by Rule 260.140.41 of Title 10 of the California Code of Regulations which includes any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law and shall also include adoptive relationships.  Incentive stock options may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the optionee, only by the optionee.  Notwithstanding the preceding two sentences, in conjunction with the exercise of an option, and for the purpose of obtaining financing for such exercise, the option holder may arrange for a securities broker/dealer to exercise an option on the option holder’s behalf, to the extent necessary to obtain funds required to pay the exercise price of the option.
 
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10.        WITHHOLDING TAXES

Whenever Shares are to be issued upon the exercise of any option under the Plan or under any restricted stock purchase agreement, the Company shall have the right to require the optionee or purchaser to remit to the Company an amount sufficient to satisfy federal, state, and local withholding tax requirements prior to the delivery of any certificate or certificates for such Shares.

11.       DEFINITION OF “FAIR MARKET VALUE”

For the purposes of this Plan, the term “fair market value,” when used in reference to the date of grant of an option or the date of surrender of Shares in payment for the purchase of Shares pursuant to the exercise of any option, as the case may be, shall mean the amount determined by the Board or the Committee as follows:

(a)        If the Shares are listed or have unlisted trading privileges on a national securities exchange, the Shares shall be valued at their last sale price on the principal national securities exchange (measured by volume of transactions in such Shares) on which such securities shall have traded, or, if available, such sales price as reported on the composite tape, on the last trading day immediately preceding the date of grant or surrender.

(b)         If prices of the Shares are quoted in the Nasdaq Stock Market (but not the National Market System), or the OTC Bulletin Board, the Shares shall be valued at their last sale price as reported on the composite tape, on the last trading day immediately preceding the date of grant or surrender.

(c)         If the Shares are described in either subparagraph (a) or (b) above but were not traded on the last trading day immediately preceding the date of grant or surrender, or if prices of the Shares are published by the National Quotation Bureau, Inc., then the Shares shall be valued at the last price reported on the composite tape or if not so reported the average between the last bid and the last asked prices reported in the Wall Street Journal or published by the National Quotation Bureau within the 30 days prior to the date of grant or surrender.

(d)        If the Shares are not described in and valued under subparagraphs (a) and (b) above, then the Shares shall be valued by the Board or the Committee, in its sole judgment, in good faith.
 
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ARTICLE II
STOCK OPTIONS

1.          AWARD OF STOCK OPTIONS

Awards of stock options may be made under the Plan under all the terms and conditions contained herein.  However, in the case of incentive stock options, the aggregate fair market value (determined as of the date of grant of the option) of the Shares with respect to which incentive stock options are exercisable for the first time by such officer or key employee during any calendar year (under all incentive stock option plans of the Company) shall not exceed $100,000.  The date on which any option is granted shall be the date of the Board’s or the Committee’s authorization of such grant or such later date as may be determined by the Board or the Committee at the time such grant is authorized.

2.          TERM OF OPTIONS AND EFFECT OF TERMINATION

Notwithstanding any other provision of the Plan, an option shall not be exercisable after the expiration of ten (10) years from the date of its grant.  In addition, notwithstanding any other provision of the Plan, no incentive stock option granted under the Plan to a person who, at the time such option is granted, owns shares possessing more than 10% of the total combined voting power of all classes of shares of the Company or of any parent or subsidiary corporation, shall be exercisable after the expiration of five (5) years from the date of its grant.

In the event that any outstanding option under the Plan expires by reason of lapse of time or otherwise is terminated or canceled for any reason, then the Shares subject to any such option which have not been issued pursuant to the exercise of the option shall again become available in the pool of Shares for which options may be granted under the Plan.

3.         CANCELLATION OF AND SUBSTITUTION FOR OPTIONS

The Company shall have the right to cancel any option at any time before it otherwise would have expired by its terms and to grant to the same optionee in substitution therefor a new stock option stating an option price which is lower (but not higher) than the option price stated in the canceled option.  Any such substituted option shall contain all the terms and conditions of the canceled option provided, however, that notwithstanding Section 2 of Article II, such substituted option shall not be exercisable after the expiration of ten (10) years from the date of grant of the canceled option.
 
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4.         TERMS AND CONDITIONS OF OPTIONS

Options granted pursuant to the Plan shall be evidenced by agreements in such form as the Board or the Committee shall from time to time determine, which agreements shall comply with the following terms and conditions.
 
(a)        Number of Shares and Type of Option

Each option agreement shall state the number of Shares for which the option is exercisable and whether the option is intended to be an incentive stock option or a nonqualified stock option.

(b)        Option Price

Each option agreement shall state the exercise price per share or the method by which such price shall be computed.  The exercise price per share shall be determined by the Board or the Committee at the date such option is granted.  In the case of a nonqualified option, the exercise price may be not less than 85% of the fair market value of the Shares on the date such option is granted.  In the case of an incentive stock option, the exercise price shall be not less than 100% of the fair market value of the Shares on the date such option is granted.  Notwithstanding the foregoing, the exercise price per share of a option granted to a person who, on the date of such grant and in accordance with Section 425(d) of the Code, owns shares possessing more than 10% of the total combined voting power of all classes of shares of the Company or of any parent or subsidiary corporation, shall be not less than 110% of the fair market value of the Shares on the date that the option is granted.

(c)        Medium and Time of Payment

The exercise price shall be payable upon the exercise of an option in the lawful currency of the United States of America or, in the discretion of the Board or the Committee, in Shares or in a combination of such currency and such Shares.  Upon receipt of payment, the Company shall deliver to the optionee (or person entitled to exercise the option) a certificate or certificates for the Shares purchased through such exercise.

(d)         Exercise of Options

Options granted under the Plan shall vest, and thereby become exercisable, at the time or times, or upon the happening of the events or circumstances, determined by the Board or the Committee.  Options may vest at any time or from time to time upon the satisfaction of reasonable conditions to vesting determined by the Board or Committee.  Without limiting the other events and circumstances upon which vesting may be determined, the Board or Committee may make vesting conditioned upon continued employment by the Company.  The terms under which options shall vest shall be stated in each option agreement.  The Board or the Committee may, in its discretion, accelerate (but not delay or postpone) the time or times at which an option vests.
 
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To the extent that an option has become vested (except as provided in Article III), and subject to the foregoing restrictions, it may be exercised in whole or in such lesser amount as may be authorized by the option agreement.  If exercised in part, the unexercised portion of an option shall continue to be held by the optionee and may thereafter be exercised as herein provided.

(e)          Termination of Employment Except By Disability or Death

In the event that an optionee who is an employee of the Company shall cease to be employed by the Company for any reason other than his or her death or disability, his or her option shall terminate on the date (3) months after the date that he ceases to be an employee of the Company.  The Committee or the Board may waive the provisions of this Subsection 4(e) at the date of grant of an option or at a later date.

(f)         Disability of Optionee

If an optionee who is an employee of the Company shall cease to be employed by the Company by reason of his or her becoming disabled, such option shall terminate on the date one (1) year after cessation of employment due to such disability.  “Disability” means that an employee is unable to carry out the responsibilities and functions of the position held by the employee by reason of any medically determinable physical or mental impairment.  The Committee or the Board may waive the provisions of this Subsection 4(f) at the time of grant of an option or at a later date if the option is not an incentive stock option.

(g)         Death of Optionee and Transfer of Option

If an optionee should die while in the employ of the Company, or within the three-month period after termination of his or her employment with the Company during which he or she is permitted to exercise an option in accordance with Subsection 4(f) of this Article II, such option shall terminate on the date one (1) year after the optionee’s death.  During such one-year period, such option may be exercised by the executors or administrators of the optionee’s estate or by any person or persons who shall have acquired the option directly from the optionee by his or her will or the applicable law of descent and distribution.  During such one year period, such option may be exercised with respect to the number of Shares for which the deceased optionee would have been entitled to exercise it at the time of his or her death.  The Committee or the Board may waive the provisions of this Subsection 4(g) at the date of grant of an option or at a later date if the option is not an incentive stock option.
 
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ARTICLE III
RECAPITALIZATIONS AND REORGANIZATIONS

The number of Shares covered by the Plan, and the number of Shares and price per share of each outstanding option, shall be proportionately adjusted for any increase or decrease in the number of issued and outstanding Shares resulting from a subdivision or consolidation of Shares or the payment of a stock dividend, or any other increase or decrease in the number of issued and outstanding Shares effected without receipt of consideration by the Company.

Upon the dissolution or liquidation of the Company, or upon a reorganization, merger or consolidation of the Company as a result of which the outstanding securities of the class then subject to options hereunder are changed into or exchanged for cash or property or securities not of the Company’s issue, or upon a sale of substantially all the property of the Company to, or the acquisition of shares representing more than eighty percent (80%) of the voting power of the shares of the Company then outstanding by, another corporation or person, the Plan shall terminate, and all options theretofore granted hereunder shall terminate, unless provision can be made in writing in connection with such transaction for the continuance of the Plan and/or for the assumption of options theretofore granted, or the substitution for such options of options covering the shares of a successor corporation, or a parent or a subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices, in which event the Plan and options theretofore granted shall continue in the manner and under the terms so provided.

To the extent that the foregoing adjustments relate to shares or securities of the Company, such adjustments shall be made by the Board, whose determination in that respect shall be final, binding and conclusive.

The grant of an option pursuant to the Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes or its capital or business structure or to merge or to consolidate or to dissolve, liquidate or sell, or transfer all or any part of its business or assets.

ARTICLE IV
SALE OF RESTRICTED STOCK IN LIEU OF GRANT OF OPTIONS

1.          RESTRICTED STOCK
 
(a)        Number of Shares

Each restricted stock purchase agreement shall state the number of Shares sold under such agreement.
 
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(b)        Purchase Price

Each restricted stock purchase agreement shall state the purchase price per Share or the method by which such price shall be computed.  The Purchase price per Share shall be determined by the Board or the Committee at the date the sale of the Shares is approved (the “Approval Date”); provided that the purchase price per Share may be not less than 85% of the fair market value per Share on the Approval Date and that if the restricted shares are sold to an individual who owns shares representing more than ten percent of the voting power of all classes of shares of the Company (or any parent or subsidiary of the Company), the purchase price per Share may not be less than 100% of the fair market value per Share on the Approval Date.

(c)        Medium and Time of Payment

The purchase price shall be payable at the time the restricted stock purchase agreement is executed by the eligible person.  Payment shall be made in the lawful currency of the United States of America or, in the discretion of the Board or the Committee, by delivery of a promissory note payable to the Company in such lawful currency.  Upon receipt of payment, the Company shall deliver to the eligible person a certificate or certificates for the Shares purchased.

(d)        Repurchase Option

Each restricted stock purchase agreement shall provide that the Company shall have the option to repurchase the Shares sold under such agreement in the event the purchaser ceases to be a full time employee of the Company prior to the vesting of such Shares, or if any other condition to the vesting of the Shares stated in the restricted stock purchase agreement is not met (the “Repurchase Option”).  The Repurchase Option may be exercised by the Company during such period as specified in the applicable restricted stock purchase agreement.  The price at which the Company may repurchase the Shares upon the exercise of the Repurchase Option shall be the price at which the Shares were sold to the eligible person, or such greater price as provided in the applicable restricted stock purchase agreement approved by the Board or the Committee.  If the purchaser of Shares under a restricted stock purchase agreement has delivered a promissory note as payment of all or part of the purchase price of his or her Shares, the Company may cancel or reduce the principal balance and interest accrued on that promissory note as payment of all or part of the repurchase price upon exercise of the Repurchase Option.

(e)         Vesting of Shares .

Shares sold pursuant to a restricted stock purchase agreement shall vest, and thereby cease to be subject to the Repurchase Option, at the time or times, or upon the happening of the events or circumstances, determined by the Board or the Committee.  Shares may vest at any time or from time to time upon the satisfaction of reasonable conditions to vesting determined by the Board or Committee.  Without limiting the other events and circumstances upon which vesting may be determined, the Board or Committee may make vesting conditioned upon continued employment by the Company.  The terms under which Shares shall vest shall be stated in the restricted stock purchase agreement.  The Board or the Committee may, in its discretion, accelerate (but not delay or postpone) the time or times at which Shares vest under a restricted stock purchase agreement.
 
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2.         ESCROW OF UNVESTED SHARES .

The Company may require that all Shares sold under a restricted stock purchase agreement be held in escrow, on terms satisfactory to the Company, until such Shares have vested and have been paid for in full (including the payment of any amount due on any promissory note delivered by the purchaser and secured by such Shares).

3.          LEGEND ON STOCK CERTIFICATES .

Shares issued under a restricted stock purchase agreement shall include, in addition to any other legends as may be required by law or by the Board or Committee, a legend to the following effect:

THESE SHARES MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.

ARTICLE  V
MISCELLANEOUS PROVISIONS

1.         RIGHTS AS A STOCKHOLDER

An optionee or a transferee of an option shall have no rights as a shareholder with respect to any Shares covered by an option until the date of the receipt of payment (including any amounts required by the Company pursuant to Section 10 of Article I) by the Company.  No adjustment shall be made as to any option for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights for which the record date is prior to such date, except as provided in Article III.

2.         MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS AND RESTRICTED STOCK PURCHASE AGREEMENTS

Subject to the terms and conditions and within the limitations of the Plan, the Board or the Committee may modify, extend, renew, or cancel outstanding options granted under the Plan and restricted stock purchase agreements.  Notwithstanding the foregoing, however, no modification of an option or restricted stock purchase agreement shall, without the consent of the optionee or purchaser, impair or diminish any rights or obligations under any option theretofore granted o restricted stock purchase agreement executed under the Plan, except as provided in Section 8 of Article I.  For purposes of the preceding sentence, the right of the Company pursuant to Section 3 of Article II to cancel any outstanding option and to issue in place of such canceled option a substituted option stating a lower option price shall not be construed as impairing or diminishing an optionee’s rights or obligations.
 
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3.         OTHER PROVISIONS

The option agreements and restricted stock purchase agreements authorized under the Plan shall contain such other provisions, including, without limitation, restrictions upon the exercise of the option or purchase of Shares, or restrictions required by any applicable securities laws, as the Board or the Committee shall deem advisable.

4.         APPLICATION OF FUNDS

The proceeds received by the Company from the sale of Shares pursuant to the exercise of options or under restricted stock purchase agreements will be used for general corporate purposes.

5.         NO OBLIGATION TO EXERCISE OPTION

The granting of an option shall impose no obligation upon the optionee or a transferee of the option to exercise such option.

6.         FINANCIAL ASSISTANCE

Except as may be prohibited by law, the Company is vested with authority under this Plan to assist any employee to whom an option is granted or to whom Shares are sold pursuant to a restricted stock purchase agreement hereunder (including any director or officer of the Company or any of its subsidiaries who is also an employee) in the payment of the purchase price payable on exercise of that option or under that restricted stock purchase agreement, by lending the amount of such purchase price (including accepting a promissory note executed by the employee as consideration for the sale of the Shares at the time the Shares are issued) to such employee on such terms and at such rates of interest and upon such security (or unsecured) as shall have been authorized by or under authority of the Board or the Committee.
 
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7.          FINANCIAL REPORTS .

The Company shall deliver to each grantee of an option a balance sheet of the Company as at the end of its most recently completed fiscal year, and an income statement of the Company as of the end of such fiscal year.  Such financial statements shall be delivered no less frequently than annually; provided, that such financial statements need not be delivered to any employee whose duties as an employee assure them access to such financial information.
 
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2015 AMENDMENT TO
ONCOCYTE CORPORATION
2010 STOCK OPTION PLAN
 
The first sentence of Section 3(a) of the OncoCyte Corporation 2010 Stock Option Plan is amended to read as follows:

Subject to adjustment under Section 3(c), the aggregate number of shares of Common Stock of the Company (the “Common Stock”) that may be issued pursuant to the Plan is 8,000,000 shares.
 
 


Exhibit 10.3
 
INCENTIVE STOCK OPTION AGREEMENT

OncoCyte Corporation
 
THIS AGREEMENT made and entered into as of ______________, 20__ by and between OncoCyte Corporation, a California corporation (the "Company"), and _____________, an employee (the "Employee") of the Company or of a subsidiary of the Company (hereinafter included within the term "Company") within the meaning of Section 424(f) of the Internal Revenue Code of 1986, as amended (the "Code"),

W I T N E S S E T H

WHEREAS, the Company has adopted the OncoCyte Corporation 2011 Stock Option Plan, (the "Plan"), administered by the Company's Board of Directors (the "Board") or, in the discretion of the Board, by a committee (the "Committee"), providing for the granting to its employees or other individuals, stock options to purchase the Company's common stock, no par value; and

WHEREAS, the Plan provides for the grant of certain options which are intended to be incentive stock options ("incentive stock options" or "options") within the meaning of Section 422(b) of the Code; and

WHEREAS, the Employee is an officer or key employee/consultant who is in a position to make an important contribution to the long-term performance of the Company;

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

1.        Grant . The Company hereby grants to the Employee an incentive stock option to purchase _________ shares of common stock, no par value (the "Shares"), at the price set forth in Section 2, on the terms and conditions hereinafter stated and subject to any limitations contained in the Plan.

2.         Exercise Price .  The purchase price per Share is ____ dollar and ____ cents ($______) which was the fair market value of a Share as determined by the Board immediately prior to the grant.
 
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3.          Vesting .  Unless otherwise terminated as provided by this Agreement, this option will vest (and thereby become exercisable) as follows: one quarter of the options shall vest upon completion of 12 full months of continuous employment of the optionee by the Company measured from ________, 20___, the date of grant, and the balance of the options shall vest in 36 equal monthly installments commencing on the first anniversary of the date of grant, based upon the completion of each month of continuous employment of the optionee by the Company.  The unvested portion of the Option shall not be exercisable.

4.         Expiration .  The vested portion of the options shall expire on the earliest of (A) ten (10) years from date of grant, (B) ninety days after Employee ceases to be an employee of the Company for any reason other than Employee’s death or Disability (as defined below), or (C) one year after Employee ceases to be an employee of the Company due to death or Disability; provided that if Employee dies during the ninety day period described in clause (B) of this paragraph, the expiration date of the vested portion of the Option shall be one year after the date of Employee’s death.

5.         Adjustments in Shares and Purchase Price.
 
(a)        In the event of any stock split, stock dividend, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, combination, exchange of shares, liquidation, spin-off, split-up, or other similar change in capitalization or event affecting the Shares, the Board will adjust, in a manner that the Board determines, the number and class of securities, vesting schedule and exercise price per Share subject to this option.

(b)        Upon the consummation of a merger of the Company in which the shareholders of the Company no longer own a majority of the outstanding equity securities of the Company (or its successor); or any sale of all or substantially all of the assets or capital stock of the Company (other than in a spin-off or similar transaction), or any other acquisition of the business of the Company, as determined by the Board, appropriate provision will be made for the continuation of this option by the Company or the assumption of this option by the surviving or acquiring company, and by substituting on an equitable basis for the Shares then subject to this option either:  (a) the stock or other consideration payable with respect to the outstanding shares of Company common stock in connection with the transaction, (b) shares of stock of the surviving or acquiring corporation, or (c) other securities or other consideration as the Board deems appropriate, provided, that the fair market value of the substituted securities does not materially differ from the fair market value of the Shares subject to this option.  The Board may also accelerate the expiration date of this option, or provide that this option will be terminated in exchange for a cash payment equal to the excess of the fair market value of the Shares subject to this option over the option exercise price, but the termination date of this option may not be accelerated unless the vesting of the option is accelerated so that it becomes exercisable prior to being terminated.
 
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(c)        To the extent that the foregoing adjustments relate to stock or securities of the Company, such adjustments shall be made by the Board or Committee, whose determination in that respect shall be final, binding and conclusive.

(d)        The grant of this option shall not affect in any way the right of power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure or to merge or to consolidate or to dissolve, liquidate or sell, or transfer all or any part of its business or assets.

6.         Effect of Termination of Employment .  In the event of termination of the Employee's employment for any reason other than his or her death or disability, this option may not be exercised after three months after the date he or she ceases to be an employee of the Company, and may be exercisable only up to the amount vested on the date of termination.

7.         Effect of Death or Disability .  This option shall be exercisable during the Employee's lifetime only by the Employee and shall be nontransferable by the Employee otherwise than by will or the laws of descent and distribution.

(a)        In the event the Employee ceases to be employed by the Company on account of the Employee's disability, this option may not be exercised after one year following cessation of employment due to such disability, and may be exercisable only up to the amount vested under Section 3 on the date of disability.  A disability means that an employee is unable to carry out the responsibilities and functions of the position held by the employee by reason of any medically determinable physical or mental impairment.

(b)        In the event of the Employee's death while in the employ of the Company, or during the three-month period following termination of employment during which the Employee is permitted to exercise this option pursuant to Section 6 or 7, this option may be exercised by the executor or administrator of the Employee's estate or any person who shall have acquired the option from the Employee by his or her will or the applicable law of descent and distribution, during a period of one year after Employee’s death with respect to the number of Shares for which the deceased Employee would have been entitled to exercise at the time of his or her death, including the number of Shares that vested upon his death under Section 3, subject to adjustment under Section 5.  Any such transferee exercising this option must furnish the Company upon request of the Committee (i) written notice of his or her status as transferee, (ii) evidence satisfactory to the Company to establish the validity of the transfer of the option in compliance with any laws of regulations pertaining to said transfer, and (iii) written acceptance of the terms and conditions of the option as prescribed in this Agreement.
 
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8.         How to Exercise Option .  This option may be exercised by the person then entitled to do so as to any Share which may then be purchased by giving written notice of exercise to the Company, specifying the number of full Shares to be purchased and accompanied by full payment of the purchase price thereof and the amount of any income tax the Company is required by law to withhold by reason of such exercise.  The purchase price shall be payable in cash.

9.        No Rights as Shareholder Prior to Exercise .  Neither the Employee nor any person claiming under or through the Employee shall be or have any of the rights or privileges of a stockholder of the Company in respect of any of the Shares issuable upon the exercise of the option until the date of receipt of payment (including any amounts required by income tax withholding requirements) by the Company.

10.      Notices .  Any notice to be given to the Company under the terms of this Agreement shall be addressed to the Company at its principal executive office, or at such other address as the Company may hereafter designate in writing.  Any notice to be given to the Employee shall be addressed to the Employee as the address set forth beneath his or her signature hereto, or at any such other address as the Employee may hereafter designate in writing.  Any such notice shall be deemed to have been duly given three (3) days after being addressed as aforesaid and deposited in the United States mail, first class postage prepaid.

11.       Restrictions on Transfer .  Except as otherwise provided herein, the option herein granted and the rights and privileges conferred hereby shall not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and shall not be subject to sale under execution attachment or similar process upon the rights and privileges conferred hereby.  Any transfer, assignment, pledge or other disposal of said option, or of any right or privilege conferred hereby, contrary to the provisions hereof, or any sale under any execution, attachment or similar process upon the rights and privileges conferred hereby, shall immediately be null and void and shall not vest in any purported assignee or transferee any rights or privileges of the optionee, under this Agreement or otherwise with respect to such options.  Notwithstanding the preceding two sentences, in conjunction with the exercise of an option, and for the purpose of obtaining financing for such exercise, the option holder may arrange for a securities broker/dealer to exercise an option on the option holder’s behalf, to the extent necessary to obtain funds required to pay the exercise price of the option.

12.       Successor and Assigns .  Subject to the limitations on transferability contained herein, this Agreement shall be binding upon and inure to the benefit of the heirs, legal representatives, successors and assigns of the parties hereto.
 
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13.      Additional Restrictions .  The rights awarded hereby are subject to the requirement that, if at any time the Board or the Committee shall determine, in its discretion, that the listing, registration or qualification of the Shares subject to such rights upon any securities exchange or under any state or federal law, or the consent or approval of any government regulatory body, is necessary or desirable as a condition of, or in connection with, the granting of such rights or the issuance or purchase of Shares in connection with the exercise of such rights, then such rights may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been affected or obtained free of any conditions not acceptable to the Board or the Committee.  Furthermore, if the Board or Committee determines that amendment to any stock option (including but not limited to the increase in the exercise price) is necessary or desirable in connection with the registration or qualification of any Shares or other securities under the securities or "blue sky" laws of any state, then the Board or Committee shall have the unilateral right to make such changes without the consent of the Employee.

14.      Notice of Sale or Other Disposition of Shares .  In the event the Employee disposes of any of the Shares that may be acquired hereunder at any time within two years of the date hereof or one year from the date the Shares were acquired, the Employee agrees to notify the Company in writing within ten days of the date of such disposition, of the number of Shares disposed of, the nature of the transaction, and the amount received (if any) upon such disposition.  Employee understands that such a disposition may result in imposition of withholding taxes, and agrees to remit to the Company on request any amounts requested to satisfy any withholding tax liability.

15.       Terms of Employment .  Subject to any employment contract with the Employee, the terms of employment of the Employee shall be determined from time to time by the Company and the Company shall have the right, which is hereby expressly reserved, to terminate the Employee or change the terms of the employment at any time for any reason whatsoever, with or without good cause. The Employee agrees to notify in writing the Corporate Secretary of the Company of the Employee's intention, if any, to terminate Employee's employment within ten days after said intention is formed.

16.      Payment of Taxes .  Whenever Shares are to be issued to the Employee in satisfaction of the rights conferred hereby, the Company shall have the right to require the Employee to remit to the Company an amount sufficient to satisfy federal, state and local withholding tax requirements prior to the delivery of any certificate or certificates for such Shares.
 
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17.      Terms and Conditions of Plan.   This Agreement is subject to, and the Company and the Employee agree to be bound by, all of the terms and conditions of the Plan, as the same shall have been amended from time to time in accordance with the terms thereof, provided that no such amendment shall deprive the Employee, without his or her consent, of any of his or her rights hereunder, except as otherwise provided in this Agreement or in the Plan.  The Shares acquired hereunder may also be subject to restrictions on transfer and/or rights of repurchase that may be contained in the Bylaws of the Company or in separate agreements with Employee.  The Board or the Committee shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules.  All actions taken and all interpretations and determinations made by the Board or the Committee in good faith shall be final and binding upon Employee, the Company and all other interested persons.  No member of the Board or the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Agreement.

18.      Severability .  In the event that any provision in this Agreement shall be invalid or unenforceable, such provision shall be severable from, and such invalidity or unenforceability shall not be construed to have any effect on the remaining provisions of this Agreement.

19.       Governing Law .  This Agreement shall be governed by and construed under the laws of the state of California, without regard to conflicts of law provisions.
 
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IN WITNESS HEREOF, the parties hereto have executed this Agreement, as of the day and year first above written.

COMPANY:
 
   
OncoCyte Corporation
 
   
   
 
(Signature)
 
     
By
   
   
Title
   
    
EMPLOYEE:
 
     
     
 
(Signature)
 
     
     
 
(Please Print Name)
 

 
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Exhibit 10.4
 
STOCK OPTION AGREEMENT
 
THIS AGREEMENT made and entered into effective as of _______, 20__, by and between OncoCyte Corporation., a California corporation (the “Company”), and __________, an employee (the “Employee”) of the Company.

W I T N E S S E T H

WHEREAS, the Company has adopted the OncoCyte Corporation 2011 Stock Option Plan, (the "Plan"), administered by the Company's Board of Directors (the "Board") or, in the discretion of the Board, by a committee (the "Committee"), providing for the granting to its employees or other individuals, stock options to purchase the Company's common stock, no par value; and

WHEREAS, the Plan provides for the grant of certain options which are intended to be nonqualified stock options rather than incentive stock options within the meaning of Selection 422(b) of the Code; and

WHEREAS, the Employee is an officer who is in a position to make an important contribution to the long-term performance of the Company;

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

1.        Grant.   The Company hereby grants to the Employee a nonqualified stock option to purchase _______ common shares, no par value (the “Shares”), at the price set forth in Section 2, on the terms and conditions hereinafter stated and subject to any limitations contained in the Plan (the “Option”).

2.        Exercise Price .  The purchase price per Share is ______ dollars and ___ cents ($______) which was the fair market value of a Share as determined by the Board of Directors of the Company immediately prior to the grant.

3.        Vesting .  Unless otherwise terminated as provided by this Agreement, this option will vest (and thereby become exercisable) as follows: one quarter of the options shall vest upon completion of 12 full months of continuous employment of the optionee by the Company measured from ______, 20__, the date of grant, and the balance of the options shall vest in 36 equal monthly installments commencing on the first anniversary of the date of grant, based upon the completion of each month of continuous employment of the optionee by the Company.  The unvested portion of the Option shall not be exercisable.
 
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4.        Expiration .  The vested portion of the options shall expire on the earliest of (A) ten (10) years from date of grant, (B) ninety days after Employee ceases to be an employee of the Company for any reason other than Employee’s death or Disability (as defined below), or (C) one year after Employee ceases to be an employee of the Company due to death or Disability; provided that if Employee dies during the ninety day period described in clause (B) of this paragraph, the expiration date of the vested portion of the Option shall be one year after the date of Employee’s death.

5.        Adjustments in Shares and Purchase Price.
 
(a)         In the event of changes in the outstanding common shares or in the capital structure of the Company by reason of any stock or extraordinary cash dividend, stock split, reverse stock split, an extraordinary corporate transaction such as any recapitalization, reorganization, merger, consolidation, combination, exchange, or other relevant change in capitalization occurring after the date of grant of this Option, the exercise price and the number of Shares subject to this Option will be equitably adjusted or substituted, as to the number, price or kind of a share of securities or other consideration to the extent necessary to preserve the economic intent of such Award, as determined by the Board or Committee.

(b)        Upon the dissolution or liquidation of the Company, or upon a reorganization, merger, or consolidation of the Company as a result of which the outstanding securities of the class then subject to options hereunder are changed into or exchanged for cash or property or securities not of the Company’s issue, or upon a sale of substantially all the property of the Company to, or the acquisition of stock representing more than eighty percent (80%) of the voting power of the stock of the Company then outstanding by, another corporation or person, this Option shall terminate, unless provision is made in writing in connection with such transaction for the assumption of options theretofore granted under the Plan, or the substitution of such options by any options covering the stock of a successor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices, in which event this Option shall continue in the manner and under the terms so provided.
 
(c)         To the extent that the foregoing adjustments relate to stock or securities of the Company or the exercise price of this Option, such adjustments shall be made by the Board or Committee, whose determination in that respect shall be final, binding and conclusive.

(d)         The grant of this Option shall not affect in any way the right of power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure or to merge or to consolidate or to dissolve, liquidate or sell, or transfer all or any part of its business or assets.

6.         Effect of Termination of Employment .  In the event of termination of the Employee’s Continuous Service for any reason other than his or her death or disability, this Option may not be exercised after the date three months following the date of termination of Employees Continuous Service, and may be exercisable only up to the amount vested on the date of termination.  “Continuous Service” means that the Employee’s service with the Company, whether as an employee, consultant, or director, is not interrupted or terminated, as determined in accordance with the Plan.
 
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7.        Effect of Death or Disability .  This Option shall be exercisable during the Employee’s lifetime only by the Employee and shall be nontransferable by the Employee otherwise than by will or the laws of descent and distribution.

(a)        In the event the Employee’s Continuous Service terminates on account of the Employee’s disability, this Option may not be exercised after the earlier of (i) date 12 months following such termination, and (ii) the expiration of the term of this Option, and this Option shall be exercisable only up to the amount vested under Section 3 on the date of disability.  Disability shall have the meaning ascribed to it under Section 22(e)(3) of the Code.

(b)         In the event Employee’s Continuous Service terminates due to Employee’s death, or if Employee dies during the three month period following termination of Employee’s Continuous Service during which the Employee is permitted to exercise this Option pursuant to Section 6, this Option may be exercised by the executor or administrator of the Employee’s estate or any person who shall have acquired this Option from the Employee by his or her will or the applicable law of descent and distribution, during a period ending on the earlier of (i) 12 months following the date of death, and (ii) the expiration of the term of this Option, with respect to the number of Shares for which the deceased Employee would have been entitled to exercise at the time of his or her death, including the number of Shares that vested upon his death under Section 3, subject to adjustment under Section 5.  Any such transferee exercising this Option must furnish the Company upon request of the Committee (i) written notice of his or her status as transferee, (ii) evidence satisfactory to the Company to establish the validity of the transfer of this Option in compliance with any laws of regulations pertaining to said transfer, and (iii) written acceptance of the terms and conditions of this Option as prescribed in this Agreement.

8.        How to Exercise Option .  This Option may be exercised by the person then entitled to do so as to any Share which may then be purchased by giving written notice of exercise to the Company, specifying the number of full Shares to be purchased and accompanied by full payment of the purchase price thereof and the amount of any income tax the Company is required by law to withhold by reason of such exercise.  The Option Exercise Price of Shares acquired pursuant to an Option shall be paid, to the extent permitted by applicable statutes and regulations, either (a) in cash or by certified or bank check at the time the Option is exercised or (b) the Option Exercise Price may be paid: (i) by delivery to the Company of other Shares, duly endorsed for transfer to the Company, with a Fair Market Value on the date of delivery equal to the Option Exercise Price (or portion thereof) due for the number of shares being acquired (a " Stock for Stock Exchange "); (ii) a "cashless" exercise program established with a broker pursuant to which the broker exercises or arranges for the coordination of the exercise of the Option with the sale of some or all of the underlying Shares; (iii) any combination of the foregoing methods; or (iv) in any other form of consideration that is legal consideration for the issuance of Shares and that may be acceptable to the Board or Committee. The exercise price of Shares acquired pursuant to an Option that is paid by delivery to the Company of other Shares acquired, directly or indirectly from the Company, shall be paid only by Shares that have been held for more than six months (or such longer or shorter period of time required to avoid a charge to earnings for financial accounting purposes).  Notwithstanding the foregoing, during any period for which the Company has any security registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or is required to file reports under Section 15(d) of the Exchange Act, or has filed a registration statement that has not yet become effective under the Securities Act of 1933, as amended, and that it has not withdrawn , if the Employee is a director or officer of the Company, any exercise that involves or may involve a direct or indirect extension of credit or arrangement of an extension of credit by the Company, directly or indirectly, in violation of Section 402(a) of the Sarbanes-Oxley Act of 2002 shall be prohibited.
 
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9.         No Rights as Shareholder Prior to Exercise .  Neither the Employee nor any person claiming under or through the Employee shall be or have any of the rights or privileges of a shareholder of the Company in respect of any of the Shares issuable upon the exercise of this Option until the date of receipt of payment (including any amounts required by income tax withholding requirements) by the Company.

10.      Notices .  Any notice to be given to the Company under the terms of this Agreement shall be addressed to the Company at its principal executive office, or at such other address as the Company may hereafter designate in writing.  Any notice to be given to the Employee shall be addressed to the Employee as the address set forth beneath his or her signature hereto, or at any such other address as the Employee may hereafter designate in writing.  Any such notice shall be deemed to have been duly given three (3) days after being addressed as aforesaid and deposited in the United States mail, first class postage prepaid.

11.      Restrictions on Transfer .  Except as otherwise provided herein, the Option herein granted and the rights and privileges conferred hereby shall not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and shall not be subject to sale under execution attachment or similar process upon the rights and privileges conferred hereby.  Any transfer, assignment, pledge or other disposal of said Option, or of any right or privilege conferred hereby, contrary to the provisions hereof, or any sale under any execution, attachment or similar process upon the rights and privileges conferred hereby, shall immediately be null and void and shall not vest in any purported assignee or transferee any rights or privileges of the optionee, under this Agreement or otherwise with respect to such Options.  Notwithstanding the preceding two sentences, in conjunction with the exercise of an Option, and for the purpose of obtaining financing for such exercise, the Option holder may arrange for a securities broker/dealer to exercise an Option on the Option holder’s behalf, to the extent necessary to obtain funds required to pay the exercise price of the Option.
 
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12.      Successor and Assigns .   Subject to the limitations on transferability contained herein, this Agreement shall be binding upon and inure to the benefit of the heirs, legal representatives, successors, and assigns of the parties hereto.
 
13.      Additional Restrictions .  The rights awarded hereby are subject to the requirement that, if at any time the Board or the Committee shall determine, in its discretion, that the listing, registration or qualification of the Shares subject to such rights upon any securities exchange or under any state or federal law, or the consent or approval of any government regulatory body, is necessary or desirable as a condition of, or in connection with, the granting of such rights or the issuance or purchase of Shares in connection with the exercise of such rights, then such rights may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been affected or obtained free of any conditions not acceptable to the Board or the Committee.  Furthermore, if the Board or Committee determines that amendment to any stock option (including but not limited to the increase in the exercise price) is necessary or desirable in connection with the registration or qualification of any Shares or other securities under the securities or “blue sky” laws of any state, then the Board or Committee shall have the unilateral right to make such changes without the consent of the Employee.
 
14.      Terms of Employment .  Subject to any employment contract with the Employee, the terms of employment of the Employee shall be determined from time to time by the Company and the Company shall have the right, which is hereby expressly reserved, to terminate the Employee or change the terms of the employment at any time for any reason whatsoever, with or without good cause. The Employee agrees to notify in writing the Corporate Secretary of the Company of the Employee’s intention, if any, to terminate Employee’s employment within ten days after said intention is formed.

15.     Payment of Taxes .  Whenever Shares are to be issued to the Employee in satisfaction of the rights conferred hereby, the Company shall have the right to require the Employee to remit to the Company an amount sufficient to satisfy federal, state and local withholding tax requirements prior to the delivery of any certificate or certificates for such Shares.

16.      Terms and Conditions of Plan.   This Agreement is subject to, and the Company and the Employee agree to be bound by, all of the terms and conditions of the Plan, as the same shall have been amended from time to time in accordance with the terms thereof, provided that no such amendment shall deprive the Employee, without his or her consent, of any of his or her rights hereunder, except as otherwise provided in this Agreement or in the Plan.  The Shares acquired hereunder may also be subject to restrictions on transfer and/or rights of repurchase that may be contained in the Bylaws of the Company or in separate agreements with Employee.  The Board or the Committee shall have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules.  All actions taken and all interpretations and determinations made by the Board or the Committee in good faith shall be final and binding upon Employee, the Company and all other interested persons.  No member of the Board or the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Agreement.
 
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17.      Severability .  In the event that any provision in this Agreement shall be invalid or unenforceable, such provision shall be severable from, and such invalidity or unenforceability shall not be construed to have any effect on the remaining provisions of this Agreement.

18.      Governing Law .  This Agreement shall be governed by and construed under the laws of the state of California, without regard to conflicts of law provisions.
 
19.       Arbitration .  Any and all claims or controversies between the Company and Employee, including but not limited to (a) those involving the construction or application of any of the terms, provisions, or conditions of this Agreement; (b) all contract or tort claims of any kind; and (c) any claim based on any federal, state, or local law, statute, regulation, or ordinance, including claims for unlawful discrimination or harassment, shall be settled by arbitration in accordance with the then current Employment Dispute Resolution Rules of the American Arbitration Association.  Judgment on the award rendered by the arbitrator(s) may be entered by any court having jurisdiction over the Company and Employee.  The location of the arbitration shall be San Francisco, California.  Unless the Company or a Related Company and Employee mutually agree otherwise, the arbitrator shall be a retired judge selected from a panel provided by the American Arbitration Association, or the Judicial Arbitration and Mediation Service (JAMS).  The Company shall pay the arbitrator’s fees and costs.  Employee shall pay for Employee’s own costs and attorneys' fees, if any.  The Company shall pay for its own costs and attorneys' fees, if any.  However, if any party prevails on a statutory claim which affords the prevailing party attorneys' fees, the arbitrator shall award reasonable attorneys' fees and costs to the prevailing party consistent with the relevant statute(s).

EMPLOYEE UNDERSTANDS AND AGREES THAT THIS AGREEMENT TO ARBITRATE CONSTITUTES A WAIVER OF HIS RIGHT TO A TRIAL BY JURY OF ANY MATTERS COVERED BY THIS AGREEMENT TO ARBITRATE.
 

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IN WITNESS HEREOF, the parties hereto have executed this Agreement, as of the day and year first above written.

COMPANY:
 
   
OncoCyte Corporation
 
   
   
 
(Signature)
 
     
By
   
   
Title
   
     
EMPLOYEE:
 
     
     
 
(Signature)
 
     
     
 
(Please Print Name)
 

 
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EXHIBIT 10.5
 
EMPLOYMENT AGREEMENT
 
THIS AGREEMENT is made April 1, 2011, by and between OncoCyte Corporation, a California corporation (the "Company"), BioTime, Inc., a California corporation (“BioTime”), and Karen Chapman, Ph.D. ("Employee").
 
W I T N E S S E T H :
 
WHEREAS, the Company desires to employ Employee, and Employee is willing to accept such employment, all on the terms and subject to the conditions hereinafter set forth;
 
NOW, THEREFORE, in consideration of the terms and conditions hereinafter set forth, the parties hereto agree as follows:
 
 
1.
Engagement
 
(a)              Position and Duties . The Company agrees to employ Employee in the position of Director of Bioinformatics.  Employee shall perform the duties and functions as are normally carried out by a Director of a developer of pharmaceutical or medical products of a size comparable to the Company, and as the Board of Directors of the Company (the "Board of Directors") shall from time to time reasonably determine.  Without limiting the generality of the immediately preceding sentence, Employee's duties shall include, but shall not be limited to: (i) leading the Company’s bioinformatics-based lead discovery project, including development of follow-up experimental protocols and direction of appropriate staff in execution of these studies; (ii) assisting in writing and securing research grants; (iii) accomplishing the tasks outlined in awarded grants, as applicable; (iv) assisting with setting up policies, procedures, and controls to comply with good laboratory practices; and (v) other administrative duties as assigned by the Chief Executive Officer, which could be altered or changed from time to time.  Employee shall devote her best efforts, skills, and abilities, on a full-time basis, exclusively to the Company's business pursuant to, and in accordance with, reasonable business policies and procedures, as fixed from time to time by the Board of Directors of the Company.  Employee covenants and agrees that she will faithfully adhere to and fulfill such policies as are established from time to time by the Company’s Management and by the Board of Directors.
 
(b)              Performance of Services for Related Companies .  In addition to the performance of services for the Company, Employee shall, to the extent so required by the Company, also perform services for one or more members of a consolidated group of which BioTime is a part ("Related Company"), provided that such services are consistent with the kind of services Employee performs or may be required to perform for the Company under this Agreement.  If Employee performs any services for any Related Company, Employee shall not be entitled to receive any compensation or remuneration in addition to or in lieu of the compensation and remuneration provided under this Agreement on account of such services for the Related Company.  Employee covenants and agrees that she will faithfully adhere to and fulfill such policies as are established from time to time by the Board of Directors of any Related Company for which she performs services, to the extent that such policies and procedures differ from or are in addition to the policies and procedures adopted by the Board of Directors of the Company.
 
(c)              No Conflicting Obligations .  Employee represents and warrants to the Company that she is under no obligations or commitments, whether contractual or otherwise, that are inconsistent with her obligations under this Agreement or that would prohibit him, contractually or otherwise, from performing her duties as the Director of Bioinformatics of the Company as provided in this Agreement.
 

(d)              No Unauthorized Use of Third Party Intellectual Property .  Employee represents and warrants that she will not use or disclose, in connection with her employment by the Company or any Related Company, any patents, trade secrets, confidential information, or other proprietary information or intellectual property as to which any other person has any right, title or interest, except to the extent that the Company or a Related Company holds a valid license or other written permission for such use from the owner(s) thereof.  Employee represents and warrants to the Company that she has returned all property and confidential information belonging to any prior employer.
 
 
2.
Compensation
 
(a)              Salary .  During the term of this Agreement, the Company shall pay to the Employee an annual salary of one-hundred thirty-five thousand dollars ($135,000) the ("Annual Salary").  Employee's salary shall be paid in equal semi-monthly installments, consistent with the Company's regular salary payment practices.  Employee's salary may be increased from time-to-time by the Company without affecting this Agreement.
 
(b)              Bonus .   Employee shall be eligible for an annual bonus, as may be approved by the Board of Directors in its discretion, based on Employee's performance and achievement of goals or milestones set by the Board of Directors.  Employee agrees that the Board of Directors of the Company may follow the recommendations of the Compensation Committee of the board of directors of the Company’s parent company in determining whether to a award bonus or to establish performance goals or milestones.
 
(c)              Expense Reimbursements . The Company or a Related Company shall reimburse Employee for reasonable commute, travel, and other business expenses incurred by Employee in the performance of her duties hereunder, subject to the Company's (or a Related Company's) policies and procedures in effect from time to time, and provided that Employee submits supporting vouchers
 
(d)              Benefit Plans.  Employee shall be eligible (to the extent she qualifies) to participate in any retirement, pension, life, health, accident and disability insurance, stock option plan or other similar employee benefit plans which may be adopted by the Company (or Related Company) for its executive officers or other employees.  The Company shall pay for all premiums for   any such insurance policies covering Employee and Employee's spouse and children, if any, to the extent such insurance coverage is available under Company employee benefit plans.
 
(e)              Stock Options .  The Company will grant Employee options to purchase 10,000 BioTime common shares, no par value, under BioTime’s Stock Option Plan (the "Option").
 
(i)              The exercise price of the Option will be the last closing price of the Company’s (or Related Company’s) common shares immediately prior to approval of this grant by the Compensation Committee of the Company’s Board of Directors.  The Option will vest (and thereby become exercisable) as follows:  1/48 th of the number of shares of each option grant will vest at the end of each full month of employment.  Vesting will depend on Employee's continued employment with the Company through the applicable vesting date. The unvested portion of the Option shall not be exercisable.   The Option will not be transferable by Employee during Employee’s lifetime, except as provided in the Stock Option Agreement.
 
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(ii)            The vested portion of the Option shall expire on the earliest of (A) seven (7) years from the date of grants, (B) three months after Employee ceases to be an employee of the Company for any reason other than Employee's death or Disability (as defined below), or (C) one year after Employee ceases to be an employee of the Company due to her death or Disability; provided that if Employee dies during the three month period described in clause (B) of this paragraph, the expiration date of the vested portion of the Option shall be one year after the date of her death.
 
(iii)          The Option will be subject to the terms and conditions of the BioTime’s 2002 Stock Option Plan (the "Plan") and a Stock Option Agreement consistent with the Plan.
 
(iv)            The Company will also grant Employee an option to purchase 400,000 of the Company's common shares, no par value, (the "OncoCyte Option").
 
(v)              The exercise price of these Options is 75 cents, the fair market value of the Company's common shares on the effective date of the grant, as determined by the Board of Directors.  The effective date of the grant will be the date on which this Agreement is effective.  The Option will vest (and thereby become exercisable) as follows:  1/48 th of the number of shares will vest at the end of each full month of employment.  Vesting will depend on Employee's continued employment with the Company through the applicable vesting date. The unvested portion of the Option shall not be exercisable.  The Option will not be transferable by Employee during her lifetime, except as provided in the Stock Option Agreement.
 
(vi)            The vested portion of the Option shall expire on the earliest of (A) seven (7) years from the date of grant, (B) three months after Employee ceases to be an employee of the Company for any reason other than Employee's death or Disability (as defined below), or (C) one year after Employee ceases to be an employee of the Company due to her death or Disability; provided that if Employee dies during the three month period described in clause (B) of this paragraph, the expiration date of the vested portion of the Option shall be one year after the date of her death.
 
(vii)         The Option will be subject to the terms and conditions of the Company’s Stock Option Plan (the "Plan") and a Stock Option Agreement consistent with the Plan.
 
(f)              Vacation; Sick Leave .  Employee shall be entitled to 15 business days of vacation/sick leave without reduction in compensation, during each calendar year.  Such vacation/sick leave shall be taken at such time as is consistent with the needs and policies of the Company and its subsidiaries.  All vacation days and sick leave days shall accrue annually based upon days of service.  The Company may, from time to time, adopt policies governing the disposition of unused vacation days and sick leave days remaining at the end of the Company's fiscal year; which policies may govern whether unused vacation days or sick leave days will be paid, lost, or carried over into subsequent fiscal years.
 
3.              Competitive Activities . During the term of Employee's employment with the Company and for one year thereafter, Employee shall not, for himself or any third party, directly or indirectly employ, solicit for employment or recommend for employment any person employed by the Company or any Related Company.  During the term of Employee's employment, she shall not, directly or indirectly as an employee, contractor, officer, director, member, partner, agent, or equity owner, engage in any activity or business that competes or could reasonably be expected to compete with the business of the Company or any Related Company.  Employee acknowledges that there is a substantial likelihood that the activities described in this Section would (a) involve the unauthorized use or disclosure of the Company's or a Related Company's Confidential Information and that use or disclosure would be extremely difficult to detect, and (b) result in substantial competitive harm to the business of the Company or a Related Company.  Employee has accepted the limitations of this Section as a reasonably practicable and unrestrictive means of preventing such use or disclosure of Confidential Information and preventing such competitive harm.
 
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4.
Inventions/Intellectual Property/Proprietary Information
 
(a)             Inventions and Discoveries Belong to the Company . Any and all inventions, discoveries, improvements, or intellectual property relating to or in any way pertaining to or connected with the systems, products, apparatus, or methods employed, manufactured, constructed, or researched by the Company, or any Related Company, which Employee may conceive or make while performing services for the Company, or Related Company, (“Intellectual Property”) shall be the sole and exclusive property of the Company or Related Company.  Employee hereby irrevocably assigns and transfers to Company, or Related Company, all rights, title and interest in and to all Intellectual Property that Employee may now or in the future have under patent, copyright, trade secret, trademark or other law, in perpetuity or for the longest period otherwise permitted by law, without the necessity of further consideration.  The Company will be entitled to obtain and hold in its own name all copyrights, patents, trade secrets, trademarks and other similar registrations with respect to such Intellectual Property.
 
(i)              The obligations provided for by this Agreement, except for the requirements as to disclosure in Section 4(b), do not apply to any rights Employee may have acquired in connection with Intellectual Property for which no equipment, supplies, facility, or trade secret information of the Company or Related Company was used and which was developed entirely on the Employee’s own time and (a) which at the time of conception or reduction to practice does not relate directly or indirectly to the business of the Company or Related Company, or to the actual or demonstrable anticipated research or development activities or plans of the Company or Related Company, or (b) which does not result from any work performed by Employee for the Company or Related Company.  All Intellectual Property that (1) results from the use of equipment, supplies, facilities, or trade secret information of the Company or Related Company; (2) relates, at the time of conception or reduction to practice of the invention, to the business of the Company or Related Company, or actual or demonstrably anticipated research or development of the Company or Related Company; or (3) results from any work performed by the Employee for the Company or Related Company shall be assigned and is hereby assigned to the Company or Related Company.  The parties understand and agree that this limitation is intended to be consistent with California Labor Code, Section 2870, a copy of which is attached as Exhibit A.  If Employee wishes to clarify that something created by Employee prior to Employee’s employment by the Company that relates to the actual or proposed business of the Company is not within the scope of this Agreement, Employee has listed it on Exhibit B in a manner that does not violate any third party rights.
 
To the extent allowed by law, the rights assigned by Employee to the Company or Related Company includes all rights of paternity, integrity, disclosure and withdrawal, and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively “Moral Rights”).  To the extent Employee retains any such Moral Rights under applicable law, Employee hereby ratifies and consents to any action that may be taken with respect to such Moral Rights by or authorized by the Company or Related Company and agrees not to assert any Moral Rights with respect thereto.  Employee shall confirm in writing any such ratifications, consents, and agreements from time to time as requested by the Company or Related Company.
 
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Employee agrees to execute and sign any and all applications, assignments, or other instruments which the Company may deem necessary in order to enable the Company or Related Company, at its expense, to apply for, prosecute, and obtain patents of the United States or foreign countries for the Intellectual Property, or in order to assign or convey to, perfect, maintain or vest in the Company or Related Company the sole and exclusive right, title, and interest in and to said improvements, discoveries, inventions, or patents.  If the Company or Related Company is unable after reasonable efforts to secure Employee’s signature, cooperation or assistance in accordance with the preceding sentence, whether because of Employee’s incapacity or any other reason whatsoever, Employee hereby designates and appoints the Company or Related Company or its designee as Employee’s agent and attorney-in-fact, to act on her behalf, to execute and file documents and to do all other lawfully permitted acts necessary or desirable to perfect, maintain or otherwise protect the Company’s or Related Company’s rights in the Intellectual Property.  Employee acknowledges and agrees that such appointment is coupled with an interest and is irrevocable.
 
(b)             Disclosure of Inventions and Discoveries.   Employee agrees to disclose promptly to the Company or Related Company all improvements, discoveries, or inventions which Employee may make solely, jointly, or commonly with others.  Employee agrees to assign and hereby assigns all right, title and interest in any such improvements, discoveries, inventions, or intellectual property to the Company or Related Company, where the rights are the property of the Company or Related Company.  This paragraph is applicable whether or not the Intellectual Property was made under the circumstances described in paragraph (a) of this Section.
 
Employee agrees to make such disclosures understanding that they will be received in confidence and that, among other things, they are for the purpose of determining whether or not rights to the related invention, discovery, improvement, or intellectual property is the property of the Company or Related Company.
 
(c)             Confidential and Proprietary Information.   During this employment with the Company, Employee will have access to trade secrets and confidential information of the Company and any Related Company.  Confidential Information means all information and ideas, in any form, relating in any manner to matters such as: products; formulas; technology and know-how; inventions; clinical trial plans and data; business plans; marketing plans; the identity, expertise, and compensation of employees and contractors; systems, procedures, and manuals; customers; suppliers; joint venture partners; research collaborators; licensees; and financial information.  Confidential Information also shall include any information of any kind, whether belonging to the Company, a Related Company, or any third party, that the Company or a Related Company has agreed to keep secret or confidential under the terms of any agreement with any third party.  Confidential Information does not include:  (i) information that is or becomes publicly known through lawful means other than unauthorized disclosure by Employee; (ii) information that was rightfully in Employee’s possession prior to this employment with the Company and was not assigned to the Company or Related Company, or was not disclosed to Employee in Employee’s capacity as an employee or other fiduciary of the Company or a Related Company; or (iii) information disclosed to Employee, after the termination of this employment by the Company, without a confidential restriction by a third party who rightfully possesses the information and did not obtain it, either directly or indirectly, from the Company or a Related Company and who is not subject to an obligation to keep such information confidential for the benefit of the Company, a Related Company, or any third party with whom the Company or a Related Company has a contractual relationship.  Employee understands and agrees that all Confidential Information shall be kept confidential by Employee both during and after this employment by the Company.  Employee further agrees that Employee will not, without the prior written approval by the Company, disclose any Confidential Information, or use any Confidential Information in any way, either during the term of this employment with the Company or at any time thereafter, except as required by the Company or a related company in the course of this employment.
 
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5.              Termination of Employment .  Employee understands and agrees that her employment has no specific term.  This Agreement, and the employment relationship, are "at will" and may be terminated by either party with or without cause upon thirty (30) days advance written notice to the other.  Except as otherwise agreed in writing or as otherwise provided in this Agreement, upon termination of Employee's employment, the Company shall have no further obligation to Employee by way of compensation or otherwise as expressly provided in this Agreement.
 
(a)              Separation Benefits .  Upon termination of Employee’s employment with the Company for any reason, Employee will receive the severance benefits set forth below, but Employee will not be entitled to any other compensation, award, or damages with respect to her employment or termination of employment.
 
(i)              Termination for Cause, Death, Disability, or Resignation .  In the event of Employee's termination for Cause, or termination as a result of her death or Disability, or her resignation, Employee will be entitled to receive payment for all unpaid salary, accrued but unpaid bonus, if any, and vacation accrued as of the date of her termination of employment.  Employee will not be entitled to any cash severance benefits or additional vesting of any Company stock options or other equity or cash awards.
 
(ii)              Termination Without Cause .  In the event of Employee’s termination without Cause, she will be entitled to (A) the benefits set forth in paragraph (a)(i) of this Section, and (B) payment in an amount equal to three months' base salary which may be paid in a lump sum or, at the election of the Company, in installments consistent with the payment of Employee 's salary while employed by the Company, subject to such payroll deductions and withholdings as are required by law.
 
(b)              Change of Control .  In the event the Company (or any successor in interest to the Company that has assumed the Company's obligation under this Agreement) terminates Employee’s employment without Cause within twelve (12) months following a Change in Control, Employee will be entitled to (A) the benefits set forth in paragraph (a)(i) of this Section, and (B) the benefits set forth in paragraph (a)(ii) of this Section.
 
(c)              Release .   Any other provision of this Agreement notwithstanding, paragraphs (a)(ii) and (a)(iii) of this Section shall not apply unless the Employee (i) has executed a general release of all claims (in a form prescribed by the Company) and (ii) has returned all property of the Company and any Related Companies in the Employee's possession.
 
(d)              Definitions .   For purposes of this Section, the following definitions shall apply:
 
(i)              "Affiliated Group" means (A) a Person and one or more other Persons in control of, controlled by, or under common control with such Person; and (B) two or more Persons who, by written agreement among them, act in concert to acquire Voting Securities entitling them to elect a majority of the directors of the Company.
 
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(ii)              "Cause" means: (A) the failure to properly perform Employee 's job responsibilities, as determined reasonably and in good faith by the Board of Directors; (B) commission of any act of fraud, gross misconduct or dishonesty with respect to the Company or any Related Company; (C) conviction of, or plea of guilty or "no contest" to any felony, or a crime involving moral turpitude; (D) breach of any provision of this Agreement or any provision of any proprietary information and inventions agreement with the Company or any Related Company; (E) failure to follow the lawful directions of the Chief Executive Officer of the Company or any Related Company; (F) chronic alcohol or drug abuse; (G) obtaining, in connection with any transaction in which the Company, Related Companies or the Company’s affiliates is a party, a material undisclosed financial benefit for herself or for any member of her immediate family or for any corporation, partnership, limited liability company, or trust in which she or any member of her immediate family owns a material financial interest; or (H) harassing or discriminating against, or participating or assisting in the harassment of or discrimination against, any employee of the Company (or a Related Company or an affiliate of the Company) based upon gender, race, religion, ethnicity, or nationality.
 
(iii)              "Change of Control" means (A) the acquisition of Voting Securities of the Company by a Person or an Affiliated Group entitling the holder thereof to elect a majority of the directors of the Company; provided, that an increase in the amount of Voting Securities held by a Person or Affiliated Group who on the date of this Agreement owned beneficially owned (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended, and the regulations   thereunder) more than 10% of the   Voting Securities shall not   constitute a Change of Control; and provided, further, that an acquisition of Voting Securities by one or more Persons acting as an underwriter in connection with a sale or distribution of such Voting Securities shall not constitute a Change of Control under this clause (A); (B) the sale of all or substantially all of the assets of the Company; or (C) a merger or consolidation of the Company with or into another corporation or entity in which the stockholders of the Company immediately before such merger or consolidation do not own, in the aggregate, Voting Securities of the surviving corporation or entity (or the ultimate parent of the surviving corporation or entity) entitling them, in the aggregate (and without regard to whether they constitute an Affiliated Group) to elect a majority of the directors or persons holding similar powers of the surviving corporation or entity (or the ultimate parent of the surviving corporation or entity); provided, however, that in no event shall any transaction described in clauses (A), (B) or (C) be a Change of Control if all of the Persons acquiring Voting Securities or assets of the Company or merging or consolidating with the Company are one or more Related Companies.
 
(iv)              "Disability" shall mean Employee's inability to perform the essential functions of her job responsibilities for a period of one hundred eighty (180) days in the aggregate in any twelve (12) month period.
 
(v)              "Person" means any natural person or any corporation, partnership, limited liability company, trust, unincorporated business association, or other entity.
 
(vi)              "Voting Securities" means shares of capital stock or other equity securities entitling the holder thereof to regularly vote for the election of directors (or for person performing a similar function if the issuer is not a corporation), but does not include the power to vote upon the happening of some condition or event which has not yet occurred.
 
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6.              Turnover of Property and Documents on Termination . Employee agrees that on or before termination of her employment, she will return to the Company and all Related Companies all equipment and other property belonging to the Company and Related Companies, and all originals and copies of Confidential Information (in any and all media and formats, and including any document or other item containing Confidential Information) in Employee's possession or control, and all of the following (in any and all media and formats, and whether or not constituting or containing Confidential Information) in Employee's possession or control:  (a) lists and sources of customers; (b) proposals or drafts of proposals for any research grant, research or development project or program, marketing plan, licensing arrangement, or other arrangement with any third party; (c) reports, job or laboratory notes, specifications, and drawings pertaining to the  research, development, products, patents, and technology of the Company and any Related Companies; and (d) any and all inventions or intellectual property developed by Employee during the course of employment.
 
7.              Arbitration .  Except for injunctive proceedings against unauthorized disclosure of confidential information, any and all claims or controversies between the Company or any Related Company and Employee, including but not limited to (a) those involving the construction or application of any of the terms, provisions, or conditions of this Agreement; (b) all contract or tort claims of any kind; and (c) any claim based on any federal, state, or local law, statute, regulation, or ordinance, including claims for unlawful discrimination or harassment, shall be settled by arbitration in accordance with the then current Employment Dispute Resolution Rules of the American Arbitration Association.  Judgment on the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.  The location of the arbitration shall be San Francisco, California.  Unless the parties mutually agree otherwise, the arbitrator shall be a retired judge selected from a panel provided by the American Arbitration Association, or the Judicial Arbitration and Mediation Service (JAMS).  The Company shall pay the arbitrator’s fees and costs.  Each party shall pay for its own costs and attorneys' fees, if any.  However, if any party prevails on a statutory claim which affords the prevailing party attorneys' fees, the arbitrator may award reasonable attorneys' fees and costs to the prevailing party.

EMPLOYEE UNDERSTANDS AND AGREES THAT THIS AGREEMENT TO ARBITRATE CONSTITUTES A WAIVER OF her RIGHT TO A TRIAL BY JURY OF ANY MATTERS COVERED BY THIS AGREEMENT TO ARBITRATE.
 
8.              Severability . In the event that any of the provisions of this Agreement shall be held to be invalid or unenforceable in whole or in part, those provisions to the extent enforceable and all other provisions shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable parts had not been included in this Agreement.  In the event that any provision relating to the time period of restriction shall be declared by a court of competent jurisdiction to exceed the maximum time period such court deems reasonable and enforceable, then the time period of restriction deemed reasonable and enforceable by the court shall become and shall thereafter be the maximum time period.
 
9.              Agreement Read and Understood . Employee acknowledges that she has carefully read the terms of this Agreement, that she has had an opportunity to consult with an attorney or other representative of her own choosing regarding this Agreement, that she understands the terms of this Agreement, and that she is entering this agreement of her own free will.
 
10.          Complete Agreement, Modification .  This Agreement is the complete agreement between the parties on the subjects contained herein and supersedes all previous correspondence, promises, representations, and agreements, if any, either written or oral.  No provision of this Agreement may be modified, amended, or waived except by a written document signed both by the Company and Employee.
 
8

11.           Governing Law .  This Agreement shall be construed and enforced according to the laws of the State of California.
 
12.          Assignability .  This Agreement, and the rights and obligations of the parties under this Agreement, may not be assigned by Employee.  The Company may assign any of its rights and obligations under this Agreement to any successor or surviving corporation, limited liability company, or other entity resulting from a merger, consolidation, sale of assets, sale of stock, sale of membership interests, or other reorganization, upon condition that the assignee shall assume, either expressly or by operation of law, all of the Company's obligations under this Agreement.
 
13.          Survival .  This Section 13 and the covenants and agreements contained in Sections 4 and 6 of this Agreement shall survive termination of this Agreement and Employee's employment.
 
14.          Notices .  Any notices or other communication required or permitted to be given under this Agreement shall be in writing and shall be mailed by certified mail, return receipt requested, or sent by next business day air courier service, or personally delivered to the party to whom it is to be given at the address of such party set forth on the signature page of this Agreement (or to such other address as the party shall have furnished in writing in accordance with the provisions of this Section 14).
 
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.
 
EMPLOYEE:
   
       
/s/ Karen Chapman
   
Karen Chapman, Ph.D.
   
Address:
308 Ashton Ln
 
 
Mill Valley, California 94941
 
 
COMPANY: 
   
           
OncoCyte Corporation 
   
           
 
By:
/s/ Joseph Wagner
   
   
Joseph Wagner, Ph.D.
   
           
 
Title:
CEO
     
           
   
Address:
1301 Harbor Bay Parkway, Suite100
 
     
Alameda, California 94502
 
 
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BIOTIME:  
   
           
BioTime, Inc.
     
           
 
By:
/s/ Robert W. Peabody
   
   
Robert W. Peabody
   
           
 
Title:
Sr. Vice President and Chief Operating Officer
   
           
   
Address:
1301 Harbor Bay Parkway, Suite100
 
     
Alameda, California 94502
 
 
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EXHIBIT A
 
California Labor Code Section 2870.
 
Application of provision providing that employee shall assign or offer to assign rights in invention to employer.
 
 (a)           Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of her or her rights in an invention to her or her employer shall not apply to an invention that the employee developed entirely on her or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:
 
(i)                Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or
 
(ii)               Result from any work performed by the employee for her employer.

(b)            To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
 
11

EXHIBIT B
 
PRIOR MATTERS
 
None

 
12


EXHIBIT 10.6
 
EMPLOYMENT AGREEMENT
 
THIS AGREEMENT is made June 15, 2015, by and between OncoCyte Corporation, a California corporation (the “Company”), and William Annett (“Executive”).
 
WITNESSETH:
 
WHEREAS, the Company desires to employ Executive, and Executive is willing to accept such employment, all on the terms and subject to the conditions hereinafter set forth:

NOW, THEREFORE, in consideration of the terms and conditions hereinafter set forth, the parties hereto agree as follow:

 
1.
Employment.  The Company hereby agrees to employ Executive and Executive hereby agrees to be employed by the Company on the terms and conditions set forth in this Agreement, beginning on  June 16, 2015 (the “Start Date”) and ending on upon the termination of Executive’s employment (such period, the “Term”).  The parties acknowledge and agree that Executive’s employment relationship is at-will.  Subject to the obligations set out in this Agreement, either Executive or the Company may terminate the employment relationship at any time, with or without Cause (as defined below).

2.
Position and Duties.

 
a.
Position.  During the Term, Executive shall serve as the Company’s Chief Executive Officer and shall continue to serve as a member of the Board of Directors of the Company (the “Board”) .

 
b.
Duties .  Executive shall have the powers, authorities, and duties of management customarily vested in the office of chief executive officer of a developer of pharmaceutical or medical products of a size comparable to the Company, subject to the legal directives of the Board in exercising its general oversight function.  Executive shall report solely to the Board.  During his employment, and excluding any periods of vacation and sick leave to which Executive is entitled, Executive shall devote his full working time and efforts to the business and affairs of the Company.  Notwithstanding the foregoing, the Executive may serve on other boards of directors, with the approval of the Board or engage in religious, charitable or other community activities as long as such services and activities are disclosed to the Board and do not interfere with the Executive’s performance of his or her duties to the Company.
 

 
c.
Performance of Services for Related Companies.  In addition to the performance of services for the Company, Executive shall, to the extent so required by the Company, also perform services for one or more members of a consolidated group of which the Company is a part (“Related Company”), provided that such services are consistent with the kind of services Executive performs or may be required to perform for the Company under this Agreement.  If Executive performs any services for any Related Company, Executive shall not be entitled to receive any compensation or remuneration in addition to or in lieu of the compensation and remuneration provided under this Agreement on account of such services for the Related Company.

 
d.
No Conflicting Obligations.   Executive represents and warrants to the Company that he is under no obligations or commitments, whether contractual or otherwise, that are inconsistent with his obligations under this Agreement or that would prohibit him, contractually or otherwise, from performing his duties as the Chief Executive Officer of the Company as provided in this Agreement.
 
 
e.
No Unauthorized Use of Third Party Intellectual Property.  Executive represents and warrants that he will not use or disclose, in connection with his employment by the Company or any Related Company, any patents, trade secrets, confidential information, or other proprietary information or intellectual property as to which any person has any right, title or interest, except to the extent that the Company or Related Company holds a valid license or other written permission for such use from the owner(s) thereof.  Executive represents and warrants to the Company that he has returned all property and confidential information belonging to any prior employer.
 
3.
Compensation

 
a.
Salary.  During the Term, the Company shall pay to the Executive an annual salary of three hundred twenty thousand dollars ($320,000) (the “Base Salary”).  Executive’s Base Salary shall be paid in equal semi-monthly installments, consistent with the Company’s regular salary payment practices.  Base Salary shall be reviewed on an annual basis commencing in January 2016, and shall be subject to adjustment based upon mutual agreement; provided, however,  that in the event the Company becomes a public entity during the Term,  the Compensation Committee of the Board shall adjust Executive’s Base Salary upwards (but not downwards) in accordance with market for CEOs at comparable public companies.
 

 
b.
Annual Bonus.   Executive shall be eligible to earn an annual cash incentive bonus award determined by the Board in respect of each fiscal year during Executive’s employment (the “Annual Bonus”), with a target bonus equal to no less than thirty five percent (35%) of Base Salary (the “Target Bonus”) for achievement of the specified performance goals at target levels for the applicable calendar year.  The actual Annual Bonus payable shall be based upon the level of achievement of objectively determinable Company and individual performance goals for the applicable calendar year, as determined by the Board in consultation with Executive.  Such performance goals shall be determined and memorialized in writing no later than January 31 of each calendar year.  If the specified performance goals for the applicable calendar year are achieved at maximum levels, the actual Annual Bonus payable shall be up to 150% of the Annual Base Salary, as determined by the Board, in its sole discretion.  The Annual Bonus shall be paid to Executive at the same time as annual bonuses are generally payable to other senior executives of the Company, but not later than two and one-half (2½) months after the last day of the Company’s fiscal year in which the Annual Bonus was earned.

 
c.
Expense Reimbursements.   The Company or a Related Company shall reimburse Executive for reasonable commute, travel, and other business expenses incurred by Executive in the performance of his duties hereunder, subject to the Company’s (or a Related Company’s) policies and procedures in effect from time to time, and provided that Executive submits supporting vouchers.
 
 
d.
Benefit Plans.   Executive shall be eligible (to the extent he qualifies) to participate in any retirement, pension, life, health, accident and disability insurance, stock option plan or other similar employee benefit plans which may be adopted by the Company (or Related Company) for its executive officers or other employees.  The Company shall pay for its share of the premium cost in accordance with established Company policy for any such insurance policies covering Executive and Executive’s spouse and children, if any, to the extent such coverage is available under Company employee benefit plans.  Employee will pay his pro-rata share of the premium cost in accordance with established Company policy.
 
 
e.
Stock Options.   As soon as practicable on or after the Start Date, the Company will grant Executive an option to purchase 1,200,000 of the Company’s common shares, no par value, (the “Option”).
 

 
(i)
The exercise price of the Option will be the fair market value of the Company’s common shares on the date of the grant, as determined by the Board of Directors.  The Option will vest (and thereby become exercisable) as follows: one quarter of the options shall vest upon completion of 12 full months of continuous employment of the Executive by the Company measured from the Start Date, and the balance of the options shall vest in 36 equal monthly installments commencing on the first anniversary of the Start Date, based upon the completion of each month of continuous employment of the Executive by the Company. The unvested portion of the Option shall not be exercisable.  The Option will not be transferable by the Executive during his lifetime, except as provided in the Stock Option Agreement.

 
(ii)
The vested portion of the Option shall expire on the earliest of (A) ten (10) years from the date of the grant, (B) three months after Executive ceases to provide continuous service to the Company as an employee or consultant for any reason other than Executive’s death or Disability (as defined below), or (C) one year after Executive ceases to be a service provider to the Company due to his death or Disability; provided that if Executive dies during the three month period described in clause (B) of this paragraph, the expiration date of the vested portion of the Option shall be one year after the date of his death.
 
 
(iii)
The Option will be subject to the terms and conditions of the Company’s Stock Option Plan (the “Plan”) and a Stock Option Agreement consistent with the Plan.  The grant of the Option shall be subject to shareholder approval of the most recent amendment of the Plan.

 
(iv)
On an annual basis, the Board shall determine whether to grant Executive additional options under the Plan.  If granted, such additional options shall be subject to terms and conditions determined by the Board; provided, however, that additional options shall vest monthly over forty-eight months starting at the grant date.

 
(v)
As of the Start Date, Executive shall be granted a one-time option to purchase 10,000 fully vested shares in consideration of his prior service to the Company as a member of the Board.
 

 
f.
Personal Time Off (PTO) .  Executive shall be entitled to four weeks of PTO without reduction in compensation during each calendar year.  Such PTO shall be taken at such time as is consistent with the needs and policies of the Company and its Related Companies.  All PTO days shall accrue annually based upon days of service.

 
4.
Restrictive Covenants.   During the term of Executive’s employment with the Company and for one year thereafter, Executive shall not, for himself or any third party, directly or indirectly, employ or solicit for employment or recommend for employment any person employed by the Company or any Related Company.  During the term of Executive’s employment, he shall not, directly or indirectly as an employee, contractor, officer, director, member, partner, agent, or equity owner, engage in any activity or business that competes or could reasonably be expected to compete with the business of the Company of any Related Company.

 
5.
Inventions/Intellectual Property/Proprietary Information
 
 
a.
Inventions and Discoveries Belong to the Company.  Any and all inventions, discoveries, improvements or intellectual property which Executive may conceive or make during the period of employment relating to or in any way pertaining to or connected with the systems, products, apparatus, or methods employed, manufactured, constructed or researched by the Company (or any Related Company) shall be the sole and exclusive property of the Company (or a Related Company).  The obligations provided for by this Agreement, except for the requirements as to disclosure in Section, do not apply to any rights Executive may have acquired in connection with an invention, discovery, improvement, or intellectual property for which no equipment, supplies, facility, or trade secret information of the Company or a Related Company was used and which was developed entirely on the Executive’s own time and (a) which at the time of conception or reduction to practice does not related directly or indirectly to the business of the Company or a Related Company, or to the actual or demonstrable anticipated research or development activities or plans of the Company or any Related Company, or (b) which does not result from any work performed by Executive for the Company or any Related Company.  The parties understand and agree that this limitation is intended to be consistent with California Labor Code, Section 2870, a copy of which is attached as Exhibit A.  If Executive wishes to clarify that something created by him prior to his employment by the Company that relates to the actual or proposed business of the Company or any Related Company is not within the scope of this Agreement, he has listed it on Exhibit B in a manner that does not violate any third party rights.  To the extent allowed by law, the rights assigned by Executive to the Company and the Related Companies includes all rights or paternity, integrity, disclosure and withdrawal and nay other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively “Moral Rights”).  To the extent Executive retains any such Moral Rights under applicable law, he here by ratifies and consents to any action that may be taken with respect to such Moral Right by or authorized by the Company or a Related Company and agrees not to assert any Moral Rights with respect thereto.  Executive shall confirm in writing any such ratification, consents and agreement from time to time as requested by the Company or Related Company.
 

 
b.
Disclosure of Inventions and Discoveries.  Executive agrees to disclose promptly to the Company or a Related Company all improvements, discoveries, or inventions which Executive may make solely, jointly, or commonly with others, and to assign as appropriate such improvements, discoveries, inventions or intellectual property to the Company or a Related Company, where the rights are the property of the Company or a Related Company.  Executive agrees to execute and sign any and all applications, assignments, or other instruments which the Company or a Related Company may deem necessary in order to enable the Company or a Related Company, at its expense, to apply for, prosecute, and obtain patents of the United States or foreign countries for the improvements, discoveries, inventions or intellectual property, or in order to assign or convey to or vest in the Company or a Related Company the sole and exclusive right, title, and interest in and to said improvements, discoveries, inventions, or patents.  Executive hereby irrevocably designates and appoints the Company or a Related Company designated by the Company as Executive’s agent and attorney-in-fact, coupled with an interest and with full power of substitution, to act for and in Executive’s behalf to execute and file any document and to do all other lawfully permitted acts to further the purposes of this paragraph with the same legal force and effect as if executed by Executive.  This paragraph is applicable whether or not the invention, discovery, improvement or intellectual property was made under the circumstances described in paragraph (a) of this Section.  Executive agrees to make such disclosures understanding that they will be received in confidence and that, among other things, they are for the purpose of determining whether or not rights to the related invention, discovery, improvement, or intellectual property is the property of the Company or a Related Company.

 
c.
Confidential and Proprietary Information.  During his employment, Executive will have access to trade secrets and confidential information of the Company and any Related Company.  Confidential Information means all information and ideas, in any form, relating in any manner to matters such as:  products; formulas; technology and know-how; inventions; clinical trial plans and data; business plans; marketing plans’ the identity, expertise, and compensation of employees and contractors; systems, procedures, and manuals; customers; suppliers; joint venture partners; research collaborators; licensees; and financial information.  Confidential Information also shall include any information of any kind, whether belonging to the Company or a Related Company, or any third party, which the Company or a Related Company has agreed to keep secret or confidential under the terms of any agreement with any third party.  Confidential Information does not include:  (i) information that is or becomes publicly known through lawful means other than unauthorized disclosure by Executive, (ii) information that was rightfully in Executive’s possession prior to his employment with the Company and was not assigned to the Company or a Related Company or was not disclosed to Executive in his capacity as a director or other fiduciary of the Company or a Related Company; or (iii) information disclosed to Executive, after the termination of his employment by the Company, without a confidential restriction by a third party who rightfully possesses the information and did not obtain it, either directly or indirectly, from the Company or a Related Company, and who is not subject to an obligation to keep such information confidential for the benefit of the Company, a Related Company, or any third party with whom the Company or a Related Company had as contractual relationship.  Executive understand and agrees that all Confidential Information shall be kept confidential by Executive both during and after his employment by the Company.  Executive further agrees that he will not, without prior written approval by the Company, disclose any Confidential Information, or use any Confidential Information in any way, either during the term of his employment or at any time thereafter, except as required by the Company or a Related Company in the course of his employment.
 

 
6.
Termination of Employment,  This Agreement, and the employment relationships, are “at will” and may be terminated by either party with or without cause at any time.  Except as otherwise agreed in writing or as otherwise provided in this Agreement, upon termination of Executive’s employment, the Company shall have no further obligation to Executive by way of compensation.

 
a.
Separation Benefits.  Upon termination of Executive’s employment with the Company for any reason, Executive will receive the severance benefits set forth below, but Executive will not be entitled to any other compensation, award, or damages with respect to his employment or termination of employment.

 
(i)
Termination for Cause, Death, Disability, or Resignation.  In the event of Executive’s termination for Cause, or termination as a result of his death or Disability, or his resignation other than for Good Reason, Executive will be entitled to receive payment for all unpaid salary, accrued by unpaid bonus, if any, and vacation accrued as of the date of his termination of employment (the “Accrued Benefits”).  Executive will not be entitled to any cash severance benefits or additional vesting of any Company stock options or other equity or cash awards.
 

 
(ii)
Termination by Company without Cause or by Executive for Good Reason .    If Executive’s employment is terminated without Cause or if Executive resigns from such employment for Good Reason, Executive will be entitled to the Accrued Benefits, plus (within thirty (30) days after termination): (A) an amount of Base Salary equal to the amount that Executive would otherwise have earned during the six month period following termination (the “Severance Period”), payable in a lump sum;  (C) pro-rated Target Bonus for the fiscal year in which the termination occurs, payable on the date Annual Bonuses would otherwise be payable to executives; (C) if Executive timely elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) for himself and his eligible dependents, within the time period prescribed pursuant to COBRA, the Company will reimburse (or pay directly) COBRA premiums for such coverage (at the coverage levels in effect immediately prior to  termination) until the earlier of the end of the Severance Period or the date Executive receives receive substantially equivalent health insurance coverage in connection with new employment; (D) all outstanding equity grants held by Executive shall automatically vest as to the number of unvested shares that would otherwise have vested during the Severance Period;  and (E) with respect to any outstanding vested but unexercised option grants, the post-termination exercise period shall be extended to the earlier of the date twelve (12) months after termination or the expiration date of the option.

 
(iii)
Change of Control.  In the event the Company (or any successor in interest to the Company that has assumed the Company’s obligation under this Agreement) terminates Executive’s employment without Cause or Executive resigns for Good Reason within twelve (12) months following a Change of Control, Executive will be entitled to the benefits set forth in paragraph (a)(ii) of this Section; provided, however, that the Severance Period shall be twelve (12) months.
 

 
b.
Release.  Any other provision of this Agreement notwithstanding, paragraphs (a)(ii) and (a)(iii) of this Section shall not apply unless the Executive (i) has executed a general release of all claims (in a form prescribed by the Company) and (ii) has returned all property of the Company and any Related Companies in the Executive’s possession.

 
c.
No Duty to Mitigate .  Executive shall in no event be required to mitigate the amount of any payment contemplated by this Agreement, nor will any earnings that Executive may receive from any other source reduce any such payment

 
d.
Definitions.  For the purposes of this Section, the following definitions shall apply:
 
 
(i)
“Affiliated Group” means (A) a Person and one or more other Persons in control of, controlled by, or under common control with such Person; and (B) two or more Persons who, by written agreement among them, act in concert to acquire Voting Securities entitling them to elect a majority of the directors of the Company.

 
(ii)
“Cause” means: (A) the willful failure by Executive to perform his duties with the Company (other than any such failure resulting from his incapacity due to physical or mental impairment), unless any such failure is corrected within thirty (30) days if such cure will fully repair any failure, following written notice by the Board or its delegate that specifically identifies the manner in which the Executive has substantially not performed his duties or (B) an act of gross misconduct by Executive with regard to the Company that is materially injurious to the Company.  No act, or failure to act, by Executive shall be "willful" unless committed without good faith and without a reasonable belief that the act or omission was in the best interest of the Company.
 

 
(iii)
“Change of Control” means (A) the acquisition of Voting Securities of the Company by a Person or an Affiliated Group entitling the holder thereof to elect a majority of the directors of the Company; provided, that an increase in the amount of Voting Securities held by a Person or Affiliated Group who on the date of this Agreement owned or beneficially owned (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended, and the regulations thereunder) more than 10% of the Voting Securities by one or more Persons acting as an underwriter in connection with a sale or distribution of such Voting Securities shall not constitute a Change of Control under this clause (A); (B) the sale of all or substantially all of the assets of the Company; or (C) a merger or consolidation of the Company with or into another corporation or entity in which the stockholders of the Company immediately before such merger or consolidation do not own, in the aggregate, Voting Securities of the surviving corporation or entity (or the ultimate parent of the surviving corporation or entity) entitling them, in the aggregate (and without regard to whether they constitute an Affiliated Group) to elect a majority of the directors or persons holding similar powers of the surviving corporation or entity (or the ultimate parent of the surviving corporation or entity); provided, however, that in no event shall any transaction described in clauses (A), (B) or (C) be a Change of Control if all of the Persons acquiring Voting Securities or assets of the Company or merging or consolidating with the Company are one or more Related Companies.

 
(iv)
“Disability” shall mean Executive’s inability to perform the essential function of his job responsibilities for a period of one hundred eighty (180) days in the aggregate in any twelve (12) month period.

 
(v)
“Good Reason”  means the occurrence of one or more of the following events, without Executive’s express written consent: (A) a material change to or reduction in Executive’s duties, position or responsibilities under this Agreement; (B) a ten percent (10%) or greater reduction in Executive’s Base Salary as in effect immediately prior to such reduction, provided that such reduction is not made in proportion to an across-the-aboard reduction for all senior executives of the Company; (C) a material change in the working conditions of Executive including, without limitation, relocation of Executive’s principal workplace over fifty miles from the Company’s existing workplace, without the consent of Executive; (D) the failure of the Company to obtain the assumption of this Agreement by any successor company or (E) the Company’s material breach of this Agreement.   Prior to resignation for Good Reason, Executive shall provide the Company with written notice of the acts or omissions constituting the grounds for Good Reason within ninety (90) days of the occurrence and Company shall have a cure period of thirty (30) days following the date the Company receives such notice during which such condition must be cured.  The effective date for such a resignation for Good Reason (in the absence of cure) will be the earlier of the following dates:  (x) the date of expiration of the Company’s cure period or (y) the date that the Company advises Executive in writing that it does not intend to cure.  For the purposes of delivery of notice under subsection (A), a material change or reduction that occurs incrementally over a period of time (not to exceed twelve (12) months) shall be deemed to have occurred when such change or reduction, in the aggregate, becomes material.
 

 
(vi)
“Person” means any natural person or any corporation, partnership, limited liability company, trust, unincorporated business association, or other entity.

 
(vii)
“Voting Securities” means shares of capital stock or other equity securities entitling the holder thereof to regularly vote for the election of directors (or for person performing a similar function if the issuer is not a corporation), but does not include the power to vote upon the happening of some condition or event which has not yet occurred.

 
7.
Compliance with Section 409A of the Internal Revenue Code .

 
a.
Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s “separation from service” within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death.

 
b.
The parties intend that this Agreement will be administered in accordance with Section 409A of the Code.  To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code.  The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.
 

 
8.
Golden Parachute Payments .  In the event that any payment received by Executive pursuant to this agreement or otherwise would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (a “Parachute Payment”), and but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Section 4999 Excise Tax”), then the Company will make best efforts to obtain shareholder approval for such payment in accordance with Section 280G(b)(5) and its regulations, if applicable.  If shareholder approval of the Parachute Payment is not solicited, then Executive may elect (prior to the date the Parachute Payment would be triggered) to have such Parachute Payment equal to a reduced amount.  Such reduced amount shall be calculated as either (i) the largest portion of the Parachute Payment that would result in no portion of the Parachute Payment being subject to the Excise Tax or (ii) the largest portion, up to and including the total, of the Parachute Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive's receipt, on an after-tax basis, of the greater amount of the Parachute Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax.  If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Parachute Payment equals the reduced amount, the reduction shall occur in the following order:  reduction of cash payments; cancellation of accelerated vesting of stock awards, if applicable; reduction of employee benefits.    The accounting firm engaged by the Company (or its successor) for general tax purposes shall perform the foregoing calculations.  The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder.  The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Executive and to the Company within fifteen (15) calendar days prior to the date on which Executive's right to a Payment is triggered (if requested at that time by Executive or  the Company) or such other time as requested.  Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Executive and the Company.

 
9.
Turnover of Property and Documents on Termination.  Executive agrees that on or before termination of his employment, he will return to the Company and all Related Companies all equipment and other property belonging to the Company and Related Companies, and all originals and copies or Confidential Information (in any and all media and formats, and including any document or other item containing Confidential Information) in Executive’s possession or control, and all of the following (in any and all media and formats, and whether or not constituting or containing Confidential Information) in Executive’s possession or control: (a) lists and sources of customers; (b) proposals or drafts of proposals for any research grant, research or development project or program, marketing plan, licensing arrangement, or other arrangement with any third party; (c) reports, job or laboratory notes, specifications, and drawings pertaining to the research, development, products, patents, and technology of the Company and any Related Companies; and (d) any and all inventions or intellectual property developed by Executive during the course of employment.
 

 
10.
Governing Law; Dispute Resolution .  This Agreement will be governed by and construed in accordance with the laws of the United States and the State of California.  Each party consents to the jurisdiction and venue of the state or federal courts in San Francisco County, California, if applicable, in any action, suit, or proceeding arising out of or relating to this Agreement.  If any action is necessary to enforce the terms of this Agreement, the substantially prevailing party will be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled.

 
11.
Severability.  In the event that any of the provisions of this Agreement shall be held to be invalid or unenforceable in whole or in part, those provisions to the extent enforceable and all other provisions shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable parts had not been included in this Agreement.  In the event that any provision relating to the time period of restriction shall be declared by a court of competent jurisdiction to exceed the maximum time period such court deems reasonable and enforceable, then the time period of restriction deemed reasonable and enforceable by the court shall become and shall thereafter be the maximum time period.

 
12.
Agreement Read and Understood.  Executive acknowledges that he has carefully read the terms of this Agreement, that he has had an opportunity to consult with an attorney or other representative of his own choosing regarding this Agreement, that he understand the terms of this Agreement, and that he is entering this agreement of his own free will.
 
 
13.
Complete Agreement, Modification.  This Agreement is the complete agreement between the parties on the subjects contained herein and supersedes all previous correspondence, promises, representations, and agreements, if any, either written or oral.  No provision of this Agreement may be modified, amended, or waived except by a written document signed by both the Company and Executive.
 

 
14.
Assignability.  This Agreement, and the rights and obligations of the parties under this Agreement, may not be assigned by Executive.  The Company may assign any of its rights and obligations under this Agreement to any successor or surviving corporation, limited liability company, or other entity resulting from a merger, consolidation, sale of assets, sale of stock, sale of membership interests, or other reorganization, upon condition that the assignee shall assume, either expressly or by operation of law, all of the Company’s obligations under this Agreement.
 
 
15.
Survival.  This Section 15 and the covenants and agreements contained in Sections 4 and 5 of this Agreement shall survive termination of this Agreement and Executive’s employment.
 
 
16.
Notices.  Any notices or other communication required or permitted to be given under this Agreement shall be in writing and shall be mailed by certified mail, return receipt requested, or sent by next business day air courier service, or personally delivered to the party to whom it is to be given at the address of such party set forth on the signature page of this Agreement (or to such address as the party shall have furnished in writing in accordance with the provisions of this Section 16).

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above.
 
EXECUTIVE:

/s/ William Annett
   
William Annett
   
       
Address:
4140 39th Ave.
 
 
Oakland, CA  94619
 

COMPANY:
   
         
OncoCyte Corporation
   
         
By:
 /s/ Robert W. Peabody
   
 
Robert W. Peabody
   
         
Title:
 
Sr. Vice President and Chief Financial Officer
 
         
Address:
 
1301 Harbor Bay Parkway, Suite 100
 
   
Alameda, CA  94502
 
 

EXHIBIT A

California Labor Code Section 2870.

Application of provision providing that employee shall assign or offer to assign rights in invention to employer.

 
(a)
Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:

 
(i)
Related at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer: or

 
(ii)
Result from any work performed by the employee for his employer.
 
 
(b)
To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
 

EXHIBIT B

PRIOR MATTERS

None
 
 


EXHIBIT 10.7
 
EMPLOYMENT AGREEMENT
 
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made as of August 01, 2015 by and between OncoCyte Corporation (“OncoCyte”), a California corporation, and Kristine Mechem ("Executive").
 
 
1.
Engagement; Position and Duties.
 
(a)              OncoCyte agrees to employ Executive in the position described on Exhibit A (which Exhibit A is a part of this Agreement) effective as of the date of this Agreement. Executive shall perform the duties and functions described on Exhibit A and such other duties as the executive(s) to whom Executive reports or the Board of Directors of OncoCyte may from time to time determine.  Executive shall devote Executive’s best efforts, skills, and abilities, on a full‑time basis, exclusively to the business of OncoCyte and its Related Companies pursuant to, and in accordance with, business policies and procedures, as fixed from time to time by the Board of Directors (the “Policies”).  Executive covenants and agrees that Executive will faithfully adhere to and fulfill the Policies, including any changes to the Policies that may be made in the future.  Executive may be provided with a copy of OncoCyte’s employee manual (the “Manual”) which contains the Policies. OncoCyte may change its Policies from time to time, in which case Executive will be notified of the changes in writing by a memorandum, a letter, or an update or revision of OncoCyte’s employee manual.
 
(b)              Performance of Services for Related Companies .  In addition to the performance of services for OncoCyte, Executive shall, to the extent so required by OncoCyte, also perform services for one or more members of a consolidated group of which OncoCyte is a part ("Related Company"), provided that such services are consistent with the kind of services Executive performs or may be required to perform for OncoCyte under this Agreement.  If Executive performs any services for any Related Company, Executive shall not be entitled to receive any compensation or remuneration in addition to or in lieu of the compensation and remuneration provided under this Agreement on account of such services for the Related Company.  The Policies will govern Executive’s employment by OncoCyte and any Related Companies for which Executive is asked to provide Services. In addition, Executive covenants and agrees that Executive will faithfully adhere to and fulfill such additional policies as may established from time to time by the board of directors of any Related Company for which Executive performs services, to the extent that such policies and procedures differ from or are in addition to the Policies adopted by OncoCyte.
 
(c)              No Conflicting Obligations .  Executive represents and warrants to OncoCyte and each Related Company that Executive is under no obligations or commitments, whether contractual or otherwise, that are inconsistent with Executive’s obligations under this Agreement or that would prohibit Executive, contractually or otherwise, from performing Executive’s duties as under this Agreement and the Policies.
 
(d)              No Unauthorized Use of Third Party Intellectual Property .  Executive represents and warrants to OncoCyte and each Related Company that Executive will not use or disclose, in connection with Executive’s employment by OncoCyte or any Related Company, any patents, trade secrets, confidential information, or other proprietary information or intellectual property as to which any other person has any right, title or interest, except to the extent that OncoCyte or a Related Company holds a valid license or other written permission for such use from the owner(s) thereof.  Executive represents and warrants to OncoCyte and each Related Company that Executive has returned all property and confidential information belonging to any prior employer.
 

 
2.
Compensation
 
(a)              Salary .  During the term of this Agreement, OncoCyte shall pay to the Executive the salary shown on Exhibit A.  Executive’s salary shall be paid in equal semi-monthly installments, consistent with OncoCyte’s regular salary payment practices.  Executive’s salary may be increased from time-to-time by OncoCyte, in OncoCyte’s sole and absolute discretion, without affecting this Agreement.
 
Bonus Executive shall be eligible to earn an annual cash incentive bonus award determined by the Board in respect of each calendar year during Executive’s employment (the “Annual Bonus”), with a target bonus equal to no less than thirty percent (30%) of Base Salary (the “Target Bonus”) for achievement of the specified performance goals at target levels for the applicable calendar year.  The actual Annual Bonus payable shall be based upon the level of achievement of objectively determinable Company and individual performance goals for the applicable calendar year, as determined by the Board in consultation with Executive.  Such performance goals shall be determined and memorialized in writing no later than January 31 of each calendar year.
 
Executive agrees that the Board of Directors of OncoCyte may follow the recommendations of the Compensation Committee of the board of directors of OncoCyte’s parent company in determining whether to a award bonus or to establish performance goals or milestones.  Executive also agrees that the Board of Directors and OncoCyte are not obligated to adopt any bonus plan, to maintain in effect any bonus plan that may now be in effect or that may be adopted during the term of Executive’s employment, or to pay Executive a bonus unless a bonus is earned under the terms and conditions of any bonus plan adopted by OncoCyte
 
(b)              Expense Reimbursements . OncoCyte or a Related Company shall reimburse Executive for reasonable travel and other business expenses (but not expenses of commuting to work) incurred by Executive in the performance of Executive’s duties under this Agreement, subject to the Policies and procedures in effect from time to time, and provided that Executive submits supporting vouchers.
 
(c)              Benefit Plans.  Executive may be eligible (to the extent Executive qualifies) to participate in certain retirement, pension, life, health, accident and disability insurance, stock option plan or other similar Executive benefit plans which may be adopted by OncoCyte (or a Related Company) for its Executives. OncoCyte and the Related Companies have the right, at any time and without any amendment of this Agreement, and without prior notice to or consent from Executive, to adopt, amend, change, or terminate any such benefit plans that may now be in effect or that may be adopted in the future, in each case without any further financial obligation to Executive.  Any benefits to which Executive may be entitled under any benefit plan shall be governed by the terms and conditions of the applicable benefit plan, and any related plan documents, as in effect from time to time.  If Executive receives any grant of stock options or restricted stock under any stock option plan or stock purchase plan of OncoCyte or any Related Company, the terms and conditions of the stock options or restricted stock, and Executive’s rights with respect to the stock options or restricted stock, shall be governed by (i) the terms of the applicable stock option or stock purchase plan, as the same may be amended from time to time, and (ii) the terms and conditions of any stock option agreement or stock purchase agreement and related agreements that Executive may sign or be required to sign with respect to the stock options or restricted stock.
 
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(d)              Vacation; Sick Leave .  Executive shall be entitled to the number of days of vacation and sick leave (without reduction in compensation) during each calendar year shown on Exhibit A or as may be provided by the Policies.  Executive’s vacation shall be taken at such time as is consistent with the needs and Policies of OncoCyte and its Related Companies.  All vacation days and sick leave days shall accrue annually based upon days of service.  Executive’s right to leave from work due to illness is subject to the Policies and the provisions of this Agreement governing termination due to disability, sickness or illness.  The Policies governing the disposition of unused vacation days and sick leave days remaining at the end of OncoCyte's fiscal year shall govern whether unused vacation days or sick leave days will be paid, lost, or carried over into subsequent fiscal years.
 
3.              Competitive Activities . During the term of Executive's employment, and for one year thereafter, Executive shall not, for Executive or any third party, directly or indirectly employ, solicit for employment or recommend for employment any person employed by OncoCyte or any Related Company.  During the term of Executive's employment, Executive shall not, directly or indirectly as an Executive, contractor, officer, director, member, partner, agent, or equity owner, engage in any activity or business that competes or could reasonably be expected to compete with the business of OncoCyte or any Related Company.  Executive acknowledges that there is a substantial likelihood that the activities described in this Section would (a) involve the unauthorized use or disclosure of OncoCyte's or a Related Company's Confidential Information and that use or disclosure would be extremely difficult to detect, and (b) result in substantial competitive harm to the business of OncoCyte or a Related Company.  Executive has accepted the limitations of this Section as a reasonably practicable and unrestrictive means of preventing such use or disclosure of Confidential Information and preventing such competitive harm.
 
 
4.
Inventions/Intellectual Property/Confidential Information
 
(a)              As used in this Agreement, “Intellectual Property” means any and all inventions, discoveries, formulas, improvements, writings, designs, or other intellectual property.  Any and all Intellectual Property relating to or in any way pertaining to or connected with the systems, products, apparatus, or methods employed, manufactured, constructed, or researched by OncoCyte, or any Related Company, which Executive may conceive or make while performing services for OncoCyte or a Related Company shall be the sole and exclusive property of OncoCyte or the applicable Related Company.  Executive hereby irrevocably assigns and transfers to OncoCyte, or a Related Company, all rights, title and interest in and to all Intellectual Property that Executive may now or in the future have under patent, copyright, trade secret, trademark or other law, in perpetuity or for the longest period otherwise permitted by law, without the necessity of further consideration.  OncoCyte and the Related Companies will be entitled to obtain and hold in their own name all copyrights, patents, trade secrets, trademarks and other similar registrations with respect to such Intellectual Property.
 
(b)              Moral Rights.   To the extent allowed by law, the rights to Intellectual Property assigned by Executive to OncoCyte or any Related Company includes all rights of paternity, integrity, disclosure and withdrawal, and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively “Moral Rights”).  To the extent Executive retains any such Moral Rights under applicable law, Executive hereby ratifies and consents to any action that may be taken with respect to such Moral Rights by or authorized by OncoCyte or a Related Company and agrees not to assert any Moral Rights with respect thereto.  Executive shall confirm in writing any such ratifications, consents, and agreements from time to time as requested by OncoCyte or Related Company.
 
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(c)              Execution of Documents; Power of Attorney.   Executive agrees to execute and sign any and all applications, assignments, or other instruments which OncoCyte or a Related Company may deem necessary in order to enable OncoCyte or a Related Company, at its expense, to apply for, prosecute, and obtain patents of the United States or foreign countries for the Intellectual Property, or in order to assign or convey to, perfect, maintain or vest in OncoCyte or a Related Company the sole and exclusive right, title, and interest in and to the Intellectual Property.  If OncoCyte or a Related Company is unable after reasonable efforts to secure Executive’s signature, cooperation or assistance in accordance with the preceding sentence, whether because of Executive’s incapacity or any other reason whatsoever, Executive hereby designates and appoints OncoCyte or any Related Company or its designee as Executive’s agent and attorney-in-fact, to act on Executive’s behalf, to execute and file documents and to do all other lawfully permitted acts necessary or desirable to perfect, maintain or otherwise protect OncoCyte’s or a Related Company’s rights in the Intellectual Property.  Executive acknowledges and agrees that such appointment is coupled with an interest and is irrevocable.
 
(d)              Disclosure of Intellectual Property .   Executive agrees to disclose promptly to OncoCyte or a Related Company all Intellectual Property which Executive may create or conceive solely, jointly, or commonly with others.  This paragraph is applicable whether or not the Intellectual Property was made under the circumstances described in paragraph (a) of this Section.  Executive agrees to make such disclosures understanding that they will be received in confidence and that, among other things, they are for the purpose of determining whether or not rights to the related Intellectual Property is the property of OncoCyte or a Related Company.
 
(e)              Limitations.   The obligations provided for by this Section 4, except for the requirements as to disclosure in paragraph 4(d), do not apply to any rights Executive may have acquired in connection with Intellectual Property for which no equipment, supplies, facility, or trade secret information of OncoCyte or a Related Company was used and which was developed entirely on the Executive’s own time and (i) which at the time of conception or reduction to practice does not relate directly or indirectly to the business of OncoCyte or a Related Company, or to the actual or demonstrable anticipated research or development activities or plans of OncoCyte or a Related Company, or (ii) which does not result from any work performed by Executive for OncoCyte or a Related Company.  All Intellectual Property that (1) results from the use of equipment, supplies, facilities, or trade secret information of OncoCyte or a Related Company; (2) relates, at the time of conception or reduction to practice of the invention, to the business of OncoCyte or a Related Company, or actual or demonstrably anticipated research or development of OncoCyte or a Related Company; or (3) results from any work performed by Executive for OncoCyte or a Related Company shall be assigned and is hereby assigned to OncoCyte or the applicable Related Company.  The parties understand and agree that this limitation is intended to be consistent with California Labor Code, Section 2870, a copy of which is attached as Exhibit A.  If Executive wishes to clarify that something created by Executive prior to Executive’s employment by OncoCyte or a Related Company that relates to the actual or proposed business of OncoCyte or a Related Company is not within the scope of this Agreement, Executive has listed it on Exhibit B in a manner that does not violate any third party rights.
 
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(f)              Confidential and Proprietary Information .   During Executive’s employment, Executive will have access to trade secrets and confidential information of OncoCyte and one or more Related Companies.  Confidential Information means all information and ideas, in any form, relating in any manner to matters such as: products; formulas; technology and know-how; inventions; clinical trial plans and data; business plans; marketing plans; the identity, expertise, and compensation of Executives and contractors; systems, procedures, and manuals; customers; suppliers; joint venture partners; research collaborators; licensees; and financial information.  Confidential Information also shall include any information of any kind, whether belonging to OncoCyte, a Related Company, or any third party, that OncoCyte or a Related Company has agreed to keep secret or confidential under the terms of any agreement with any third party.  Confidential Information does not include:  (i) information that is or becomes publicly known through lawful means other than unauthorized disclosure by Executive; (ii) information that was rightfully in Executive's possession prior to Executive’s employment with OncoCyte and was not assigned to OncoCyte or a Related Company or was not disclosed to Executive in Executive’s capacity as a director or other fiduciary of OncoCyte or a Related Company; or (iii) information disclosed to Executive, after the termination of Executive’s employment by OncoCyte, without a confidential restriction by a third party who rightfully possesses the information and did not obtain it, either directly or indirectly, from OncoCyte or a Related Company, and who is not subject to an obligation to keep such information confidential for the benefit of OncoCyte, a Related Company, or any third party with whom OncoCyte or a Related Company has a contractual relationship.  Executive understands and agrees that all Confidential Information shall be kept confidential by Executive both during and after Executive’s employment by OncoCyte or any Related Company.  Executive further agrees that Executive will not, without the prior written approval by OncoCyte or a Related Company, disclose any Confidential Information, or use any Confidential Information in any way, either during the term of Executive’s employment or at any time thereafter, except as required by OncoCyte or a Related Company in the course of Executive’s employment.
 
5.              Termination of Employment .  Executive understands and agrees that Executive’s employment has no specific term.  This Agreement, and the employment relationship, are "at will" and may be terminated by Executive or by OncoCyte (and the employment of Executive by any Related Company may be terminated by the Related Company) with or without cause at any time by notice given orally or in writing.  Except as otherwise agreed in writing or as otherwise provided in this Agreement, upon termination of Executive's employment, OncoCyte and the Related Companies shall have no further obligation to Executive by way of compensation or otherwise as expressly provided in this Agreement or in any separate employment agreement that might then exist between Executive and a Related Company.
 
(a)              Payments Due Upon Termination of Employment .  Upon termination of Executive's employment with OncoCyte and all Related Companies at any time and for any reason, Executive will be entitled to receive only the severance benefits set forth below, but Executive will not be entitled to any other compensation, award, or damages with respect to Executive’s employment or termination of employment.
 
(i)              Termination for Cause, Death, Disability, or Resignation .  In the event of Executive's termination for Cause, or termination as a result of death, Disability, or resignation, Executive will be entitled to receive payment for all accrued but unpaid salary, accrued but unpaid bonus, if any, and vacation accrued as of the date of termination of Executive’s   employment.  Executive will not be entitled to any cash severance benefits or additional vesting of any stock options or other equity or cash awards.
 
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(ii)            Termination Without Cause .  In the event that they employment of the Executive is terminated by OncoCyte without “cause” as defined in this Agreement, Executive shall receive payment for all accrued but unpaid salary, accrued but unpaid bonus, if any, and vacation accrued as of the date of termination of Executive’s employment, and as severance compensation (A) three months of base salary if Executive’s employment is terminated within the first 12 months of employment, or (B) six months of base salary if Executive’s employment is terminated after 12 months of employment.  The severance compensation described in clauses (A) and (B) of the immediately preceding sentence may be paid in a lump sum, or at the election of OncoCyte, in installments consistent with the payment of Executive’s salary while employed by OncoCyte, subject to such payroll deductions and withholdings as are required by law.  This paragraph shall not apply to (x) termination of Executive’s employment by a Related Company if Executive remains employed by OncoCyte, or (y) termination of Executive’s employment by OncoCyte if Executive remains employed by a Related Company.
 
(b)              Release .   Any other provision of this Agreement notwithstanding, paragraphs (a)(ii) and (a)(iii) of this Section shall not apply unless the Executive (i) has executed a general release of all claims against OncoCyte or its successor in interest and the Related Companies and (ii) has returned all property in the Executive's possession belonging to OncoCyte or its successor in interest and any Related Companies.
 
(c)              Definitions .   For purposes of this Section, the following definitions shall apply:
 
(i)              "Cause" means: (A) the failure to properly perform Executive's job responsibilities, as determined reasonably and in good faith by the Board of Directors; (B) commission of any act of fraud, gross misconduct or dishonesty with respect to OncoCyte or any Related Company; (C) conviction of, or plea of guilty or "no contest" to, any felony, or a crime involving moral turpitude; (D) breach of any provision of this Agreement or any provision of any proprietary information and inventions agreement with OncoCyte or any Related Company; (E) failure to follow the lawful directions of the Board of Directors of OncoCyte or any Related Company; (F) chronic alcohol or drug abuse; (G) obtaining, in connection with any transaction in which OncoCyte, any Related Company, or any of OncoCyte’ affiliates is a party, a material undisclosed financial benefit for Executive or for any member of Executive’s immediate family or for any corporation, partnership, limited liability company, or trust in which Executive or any member of Executive’s immediate family owns a material financial interest; or (H) harassing or discriminating against, or participating or assisting in the harassment of or discrimination against, any employee of OncoCyte (or a Related Company or an affiliate of OncoCyte) based upon gender, race, religion, ethnicity, or nationality.
 
(ii)              "Disability" shall mean Executive's inability to perform the essential functions of Executive’s job responsibilities for a period of one hundred eighty (180) days in the aggregate in any twelve (12) month period.
 
6.              Turnover of Property and Documents on Termination .  Executive agrees that on or before termination of Executive’s employment, Executive will return to OncoCyte and all Related Companies all equipment and other property belonging to OncoCyte and the Related Companies, and all originals and copies of Confidential Information (in any and all media and formats, and including any document or other item containing Confidential Information) in Executive's possession or control, and all of the following (in any and all media and formats, and whether or not constituting or containing Confidential Information) in Executive's possession or control:  (a) lists and sources of customers; (b) proposals or drafts of proposals for any research grant, research or development project or program, marketing plan, licensing arrangement, or other arrangement with any third party; (c) reports, job or laboratory notes, specifications, and drawings pertaining to the research, development, products, patents, and technology of OncoCyte and any Related Companies; (d) any and all Intellectual Property developed by Executive during the course of employment; and (e) the Manual and memoranda related to the Policies.
 
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7.              Arbitration .  Except for injunctive proceedings against unauthorized disclosure of Confidential Information, any and all claims or controversies between OncoCyte or any Related Company and Executive, including but not limited to (a) those involving the construction or application of any of the terms, provisions, or conditions of this Agreement or the Policies; (b) all contract or tort claims of any kind; and (c) any claim based on any federal, state, or local law, statute, regulation, or ordinance, including claims for unlawful discrimination or harassment, shall be settled by arbitration in accordance with the then current Employment Dispute Resolution Rules of the American Arbitration Association.  Judgment on the award rendered by the arbitrator(s) may be entered by any court having jurisdiction over the Company and Executive.  The location of the arbitration shall be San Francisco, California.  Unless OncoCyte or a Related Company and Executive mutually agree otherwise, the arbitrator shall be a retired judge selected from a panel provided by the American Arbitration Association, or the Judicial Arbitration and Mediation Service (JAMS).  OncoCyte, or a Related Company if the Related Company is a party to the arbitration proceeding, shall pay the arbitrator’s fees and costs.  Executive shall pay for Executive’s own costs and attorneys' fees, if any.  OncoCyte and any Related Company that is a party to an arbitration proceeding shall pay for its own costs and attorneys' fees, if any.  However, if any party prevails on a statutory claim which affords the prevailing party attorneys' fees, the arbitrator may award reasonable attorneys' fees and costs to the prevailing party.

EXECUTIVE UNDERSTANDS AND AGREES THAT THIS AGREEMENT TO ARBITRATE CONSTITUTES A WAIVER OF EXECUTIVE’S RIGHT TO A TRIAL BY JURY OF ANY MATTERS COVERED BY THIS AGREEMENT TO ARBITRATE.
 
8.              Severability . In the event that any of the provisions of this Agreement or the Policies shall be held to be invalid or unenforceable in whole or in part, those provisions to the extent enforceable and all other provisions shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable parts had not been included in this Agreement or the Policies.  In the event that any provision relating to a time period of restriction shall be declared by a court of competent jurisdiction to exceed the maximum time period such court deems reasonable and enforceable, then the time period of restriction deemed reasonable and enforceable by the court shall become and shall thereafter be the maximum time period.
 
9.              Agreement Read and Understood . Executive acknowledges that Executive has carefully read the terms of this Agreement, that Executive has had an opportunity to consult with an attorney or other representative of Executive’s own choosing regarding this Agreement, that Executive understands the terms of this Agreement, and that Executive is entering this agreement of Executive’s own free will.
 
10.           Complete Agreement, Modification .  This Agreement is the complete agreement between Executive and OncoCyte on the subjects contained in this Agreement.  This Agreement supersedes and replaces all previous correspondence, promises, representations, and agreements, if any, either written or oral with respect to Executive’s employment by OncoCyte or any Related Company and any matter covered by this Agreement.  No provision of this Agreement may be modified, amended, or waived except by a written document signed both by OncoCyte and Executive.
 
11.           Governing Law .  This Agreement shall be construed and enforced according to the laws of the State of California.
 
7

12.           Assignability .  This Agreement, and the rights and obligations of Executive and OncoCyte under this Agreement, may not be assigned by Executive.  OncoCyte may assign any of its rights and obligations under this Agreement to any successor or surviving corporation, limited liability company, or other entity resulting from a merger, consolidation, sale of assets, sale of stock, sale of membership interests, or other reorganization, upon condition that the assignee shall assume, either expressly or by operation of law, all of OncoCyte's obligations under this Agreement.
 
13.           Survival .  This Section 13 and the covenants and agreements contained in Sections 4 and 6 of this Agreement shall survive termination of this Agreement and Executive's employment.
 
14.           Notices .  Any notices or other communication required or permitted to be given under this Agreement shall be in writing and shall be mailed by certified mail, return receipt requested, or sent by next business day air courier service, or personally delivered to the party to whom it is to be given at the address of such party set forth on the signature page of this Agreement (or to such other address as the party shall have furnished in writing in accordance with the provisions of this Section 14).
 
IN WITNESS WHEREOF, Executive and OncoCyte have executed this Agreement on the day and year first above written.
 
EXECUTIVE:
   
       
/s/ Kristine Mechem
 
(Signature)
   
       
Kristine Mechem
   
(Please Print Name)
   
       
Address:
  
2011 Asilomar Drive  
 
  
Oakland, CA 94611  
       
Date:
  
August 4, 2015  
 
ONCOCYTE:
     
         
OncoCyte Corporation
   
         
 
By:
  
/s/ William Annett  
         
 
Title:
  
Chief Executive Officer  
         
 
Address:
1300 Harbor Bay Parkway, Suite 100 
   
 
Alameda, California 94502 
 
8

EXHIBIT A

Job Title:                                                          Vice President of Marketing

Positon Description:
The VP Marketing is responsible for directing OncoCyte’s overall Marketing and Strategic Planning programs to ensure revenue growth and optimize portfolio management and company profitability.

Responsibilities:
· Conduct market opportunity assessments to optimize pipeline management and product launches
· Oversee all market research (payer, HCP, patient) to inform commercialization plans and portfolio management
· Design, implement and manage new product launches and pipeline portfolio management
· Develop and implement product launch plans for primary and secondary products
· Direct overall OncoCyte brand development
· Develop, recommend and execute all product positioning, pricing, promotion, channel and reimbursement strategies to ensure  successful product launches and sustainable revenue streams
· Design and conduct regular strategic and tactical planning processes at the corporate, R&D and brand levels
 
Annual Salary:
$200,000.00
 
PTO:
15 days (120.00 hours)

Immediately eligible to participate in 401(k) program effective date of hire.  Fully eligible to participate in company benefits as of August 1, 2015.

200,000 shares OncoCyte Corporation Incentive Stock Options under the 2011 Equity Incentive Plan.
 
9

EXHIBIT B
California Labor Code Section 2870.
 
Application of provision providing that employee shall assign or offer to assign rights in invention to employer.
 
(a)             Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:
 
(i)              Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or

(ii)              Result from any work performed by the employee for his employer.

(b)              To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.
 
10

EXHIBIT C

PRIOR MATTERS

None
 
 
11


Exhibit 10.8
 
REGISTRATION RIGHTS AGREEMENT
 
This Registration Rights Agreement (“Agreement”) is entered into as of October 15, 2009 by and between OncoCyte Corporation, a California corporation (the “Company”) and the undersigned.

NOW, THEREFORE, the parties agree as follows:

1.       Certain Definitions. As used in this Agreement the following terms shall have the following respective meanings:

(a)      “Act” shall mean the Securities Act of 1933, as amended, or any similar federal statute and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.

(b)      “Commission” shall mean the Securities and Exchange Commission or any other federal agency at the time administering the Act.

(c)      “Holder” shall mean each person who originally purchased Registrable Securities from the Company pursuant to a Stock Purchase Agreement and his/its transferees as permitted by Section 6.

(d)      The terms “register,” “registered” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Act, and the declaration or ordering of the effectiveness of such registration statement.

(e)      “Registrable Securities” means the Shares. Any securities that are (i) distributed as a dividend or otherwise with respect to Registrable Securities, (ii) issuable upon the exercise or conversion of Registrable Securities, or (iii) issued or issuable in exchange for or through conversion of Registrable Securities pursuant to a recapitalization, reorganization, merger, consolidation or other transaction shall also constitute Registrable Securities.

(f)       “Shares” means up to 6,000,000 common shares, no par value, of the Company issued by the Company pursuant to the Stock Purchase Agreement.

(g)      “Stock Purchase Agreement” means a Stock Purchase Agreement pursuant to which the Company agreed to issue and sell up to an aggregate of 6,000,000 Shares to the undersigned.

2.       Registration Rights.

(a)      Filing of Registration Statement With Respect to Shares. The Company agrees, at its expense, to file a registration statement with the Commission to register the Shares under the Act, and to take such other actions as may be necessary to allow the Shares to be freely tradable, without restrictions under the Act. Such registration statement shall be filed following a written request for registration from any Holder(s) of not less than 25% of the Shares not earlier than one year after the Company completes an initial public offering of its common shares registered under the Act (an “IPO”). The Company will use commercially reasonable efforts to cause the registration statement to become effective as promptly as practicable after filing. The Company will make all filings required under applicable state securities or “blue sky” laws so that the Registrable Securities being registered shall be registered or qualified for sale under the securities or blue sky laws of New York, California, and such jurisdictions as shall be reasonably appropriate for distribution of the Shares covered by the registration statement. The registration statement shall be a “shelf” registration pursuant to Rule 415 (or similar rule that may be adopted by the Securities and Exchange Commission) and shall provide that each Holder’s plan of distribution is to offer and sell Shares from time to time at market prices or prices related to market prices; provided, that a registration statement may be amended to provide for an underwritten public offering of the Shares included in the registration statement if the Holders submit to the Company a written notice to such effect with a copy of the applicable underwriting documents and such other relevant information concerning the offering as the Company may request. The Company shall use commercially reasonable efforts to keep each such registration statement effective until the earlier of (i) completion of the distribution or distributions being made pursuant thereto, and (ii) such time as the Holders are eligible to sell their Shares under Rule 144 under the Act without application of the manner of sale and volume limitations under Rule 144. The Company shall utilize Form S-3 if it qualifies for such use. The Company will furnish to the Holders such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Act and such other related documents as the Holders may reasonably request in order to effect the sale of their Shares.
 

(b)      “Piggy-Back Registration” of Shares. If, at any time after the completion of an IPO, the Company proposes to register any of its securities under the Act (otherwise than pursuant to (i) this Agreement, (ii) a registration statement pertaining to subscription rights distributed to Company shareholders, and (iii) a registration on a Form S-8 or any other form if such form cannot be used for registration of the Registrable Securities pursuant to its terms), and the Shares shall not then be eligible for sale by the Holder(s) under Rule 144 under the Act, the Company shall, as promptly as practicable, give written notice to the Holders. The Company shall include in such registration statement the Shares proposed to be sold by the Holders. Notwithstanding the foregoing, if the offering of the Company’s securities is to be made through underwriters, the Company shall not be required to include Shares if and to the extent that the managing underwriter reasonably believes in good faith that such inclusion would materially adversely affect such offering, unless the Holders agree to postpone their sales until 10 days after the distribution is completed. The provisions of Section 2(e) shall apply to any such registration statement if the offering is made through underwriters.

(c)      Costs of Registration. The Company shall pay the cost of the registration statements filed pursuant to this Agreement, including without limitation all registration and filing fees, fees and expenses of compliance with securities or blue sky laws (including counsel’s fees and expenses in connection therewith), printing expenses, messenger and delivery expenses, internal expenses of the Company, listing fees and expenses, and fees and expenses of the Company’s counsel, independent accountants and other persons retained or employed by the Company. Holders shall pay any underwriters discounts applicable to the Registrable Securities.

(d)      Other Securities. Any registration statement filed pursuant to this Agreement may include other securities of the Company which are held by other persons who, by virtue of agreements with the Company or permission given, are entitled to include their securities in such registration.

(e)      Underwriting. If Holders wish to include Shares in a registration under Section 2(b), or if Holders holding not less than 50% of the Shares intend to distribute Shares by means of an underwriting to be registered under Section 2(a), they shall so advise the Company prior to the effective date of the registration statement filed by the Company, and the Company shall include such information in a written notice to all Holders. All Holders shall be entitled to participate in such underwriting, and the right of any Holder to registration pursuant to this Agreement then shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Shares in the underwriting to the extent provided herein.

The Company shall (together with all Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by a majority in interest of the Holders and reasonably acceptable to the Company, in the case of a registration under Section 2(a), or selected by the Company is its sole discretion, in the case of a registration under Section 2(b). Notwithstanding any other provision of this Agreement, if the managing underwriter advises the Holders and the Company in writing that marketing factors require a limitation of the number of shares to be underwritten, then, the number of Registrable Securities that may be included in the registration and underwriting shall be allocated among all Holders in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by such Holders and any other holders of securities having rights to include their securities in the registration, at the time of filing the registration statement. No Registrable Securities excluded from the underwriting by reason of the managing underwriter’s marketing limitation shall be included in such registration.

If any Holder or any other holder of securities eligible for inclusion in the registration disapproves of the terms of the underwriting, such person may elect to withdraw from the underwriting and registration by written notice to the Company and the managing underwriter. The Registrable Securities and/or other securities so withdrawn shall also be withdrawn from the registration; provided, however, that, if by the withdrawal of such Registrable Securities or other securities a greater number of Registrable Securities held by other Holders or other securities held by persons having rights to participate in such registration may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders and other persons who have included Registrable Securities or other securities in the registration the right to include additional Registrable Securities or other securities in the same proportion used in determining the underwriter limitation.
 

Notwithstanding any other provision of this Agreement, if the registration is one under Section 2(b), and the managing underwriter determines that marketing factors require a limitation of the amount of securities to be underwritten, the Company may exclude Registrable Securities and other securities held by other holders of registration rights without any exclusion of securities offered by Company. In the event of any exclusion of securities held by holders of registration rights, the amount of securities that may be included in the registration and underwriting shall be allocated among all Holders of Registrable Securities and other holders of securities entitled to include securities in such registration in proportion, as nearly as practicable, to the respective amounts of Registrable Securities and other securities that the Company has agreed to register held by each such person.

(f)       Waiver. Notwithstanding any other provision of this Agreement the rights of the Holders under Section 2(b) may be waived by a majority-in-interest of the Holders (based upon their holdings of Registrable Securities, with or without notice to the Holders generally).

(g)      Limitation on Company Liability. The Company shall have no obligation to make any cash settlement or payment to any Holder, or to issue any additional Shares or other securities to any Holder, in the event that the Company is unable to effect or maintain in effect the registration of any Registrable Securities under the Act or any state securities law despite the Company’s commercially reasonable efforts so to do.

3.       Indemnification.

(a)         The Company will indemnify, defend and hold harmless each Holder, each of its officers, directors and partners, and each person who controls such Holder within the meaning of the Act, and each underwriter, if any, and each person who controls any underwriter within the meaning of the Act from and against all expenses, claims, losses, damages and liabilities (or actions commenced or threatened in respect thereof), including any of the foregoing incurred in settlement of any litigation commenced or threatened (other than a settlement effected without the consent of the Company, which consent will not unreasonably be withheld), to the extent such expenses, claims, losses, damages and liabilities (or actions commenced or threatened in respect thereof) arise out of or are based on (i) any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement or prospectus, or any amendment or supplement thereto, offering Registrable Securities, or any omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or (ii) any violation, by the Company, of any rule or regulation promulgated under the Act and applicable to the Company and relating to any registration of Registrable Securities by the Company under the Act. The Company will reimburse each such Holder, each of its officers, directors and partners, and each person controlling such Holder, each such underwriter and each such person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action; provided that the Company will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission based upon written information furnished to the Company by such Holder or underwriter or controlling person specifically for use in connection with the registration or offering of Registrable Securities.

(b)      Each Holder will, if Registrable Securities held by such Holder are included in a registration under the Act or under any state securities law, indemnify, defend and hold harmless the Company, each of its directors and officers, and each independent accountant of the Company, each underwriter, if any, of the Company’s securities covered by such a registration statement, each person who controls the Company or such underwriter within the meaning of the Act, and each other such Holder, and each of the officers, directors and partners and each person who controls such other Holder within the meaning of the Act, from and against all claims, losses, damages and liabilities (or actions commenced or threatened in respect thereof) arising out of or based on (i) any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement or prospectus, or any amendment or supplement offering Registrable Securities, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or (ii) any violation, by such Holder, of any rule or regulation promulgated under the Act applicable to such Holder and relating to action or inaction required of such Holder in connection with any registration of Registrable Securities. Such Holder will reimburse the Company, such other Holders, such directors, officers, partners, persons, accounting firms, underwriters, or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability, or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement or prospectus in reliance upon and in conformity with written information furnished to the Company or any underwriter by such Holder specifically for use therein; provided, however, that the obligations of such Holders under this Section 3(b) shall be limited to an amount equal to the net proceeds to each such Holder from the sale of Registrable Securities pursuant to such registration.
 

(c)      Each party entitled to indemnification under this Section 3 (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld). The Indemnified Party may participate in such defense at the Indemnified Party’s own expense. The failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 3 except to the extent such failure is prejudicial to the ability of the Indemnifying Party to defend such action, but such failure shall not relieve the Indemnifying Party of any liability that the Indemnifying Party may have to any Indemnified Party otherwise than under this Section 3. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.

4.       Information by Holder. Each Holder of Registrable Securities included in any registration shall furnish to the Company and to each underwriter, upon the Company’s request, such information regarding such Holder and the distribution proposed by such Holder as shall be required in connection with any registration of Registrable Securities.

5.       Rule 144 Reporting. With a view to making available the benefits of certain rules and regulations of the Commission which may permit the sale of the Registrable Securities to the public without registration, the Company agrees to:

(a)         Use commercially reasonable efforts to file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) at such times as the Company is subject to the reporting requirements under Section 13 of the Exchange Act;

(b)         So long as a Holder owns any Registrable Securities, furnish to the Holder forthwith upon request a written statement by the Company as to its compliance with the reporting requirements of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed by the Company under the Exchange Act as a Holder may reasonably request in availing itself of any rule or regulation of the Commission allowing a Holder to sell any such securities without registration.

6.       Transfer of Registration Rights. The rights to cause the Company to register securities under this Agreement may be assigned: (a) to an “affiliate” (defined as an entity that controls, is controlled by, or under common control with the transferor); (b) to one or more of its general partners, limited partners, or members if the transferor is a partnership or limited liability company; or (c) to any other transferee or assignee of an aggregate of twenty-five percent (25%) or more of the transferor’s Registrable Securities; provided, that as a condition to any transfer of such rights the transferor must give the Company written notice at the time or within a reasonable time after said transfer, stating its desire to transfer such rights, the name and address of the transferee or assignee, and identifying the securities with respect to which such registration rights are being assigned; provided, that nothing in this Section shall be construed in any way to limit any restriction or condition on transfer of any Registrable Securities imposed by any other agreement between a Holder and the Company, the Act, any rule or regulation promulgated under the Act, or any state securities or blue sky law or any rule or regulation thereunder.

7.       Computation of Certain Percentages. Where any provision of this Agreement provides for the exercise, waive, or amendment of any rights upon the action of Holders of a specified percentage of Registrable Securities, such percentage shall be determined based upon the aggregate number of Registrable Securities issued and outstanding.
 

8.       Miscellaneous.

(a)      Governing Law. This Agreement shall be governed in all respects by the laws of the State of California, as applied to contracts entered into in California between California residents and to be performed entirely within California.

(b)      Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto.

(c)      Entire Agreement; Amendment. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof. Neither this Agreement nor any term hereof may be amended, waived, discharged or terminated orally, but only by a written instrument signed by the Company and Holders of a majority of the Registrable Securities which have not been resold to the public.

(d)      Notices, etc. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by first-class mail, postage prepaid, or otherwise delivered by hand, by messenger or next business day air freight services, addressed (i) if to a Holder at such Holder’s address set forth on the signature page hereto, or at such other address as such Holder shall have furnished to the Company in writing, or (ii) if to the Company, at 1301 Harbor Bay Parkway, Suite 100, Alameda, California 94502; attention: Chief Financial Officer, or at such other address as the Company shall have furnished to the Holders in writing.

(e)      Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy, nor shall it be construed to be a waiver of or acquiescence in any such breach or default or any similar breach or default thereafter occurring. A waiver of any single breach or default shall not be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character of any breach or default under this Agreement, or any waiver of any provisions or conditions of this Agreement, must be made in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, or by law or otherwise afforded to any party, shall be cumulative and not alternative.

(f)       Severability. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(g)      Titles and Subtitles. The titles of the sections and subparagraphs of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

(h)      Counterparts. This Agreement may be executed in any number of counterparts (including by separate counterpart signature pages), each of which shall be an original, but all of which together shall constitute one instrument. Any counterpart of this Agreement may be signed by electronic or facsimile, and such electronic or facsimile signature shall be deemed an original signature.
 


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
 
THE COMPANY:

ONCOCYTE CORPORATION

By
/s/ Robert Peabody
 
Robert Peabody,
Senior Vice President and
Chief Operating Officer
 
By
/s/ Judith Segall
 
      Judith Segall, Secretary

HOLDER:
 
/s/ George Karfunkel
 
George Karfunkel

Address for Notice:  59 Maiden Lane
New York, NY 10038
FAX: (718) 921-8340
 
 


Exhibit 10.9
 
AMENDEMENT OF REGISTRATION RIGHTS AGREEMENT

This Amendment of Registration Rights Agreement (“Agreement”) is entered into as of August 23, 2011 by and between OncoCyte Corporation, a California corporation (the “Company”), and the undersigned Holders.

WHERAS, the Company has previously entered into a Registration Rights Agreement, during September 2009 (the “Agreement”) pursuant to which the Company has agreed to register for sale under the Act up to 6,000,000 shares of common stock of the Company issued to certain Holders; and

WHEREAS, the Company and Holders have entered into a Stock Purchase Agreement, of even date, under which the Company is issuing and selling to holders an additional 10,000,000 shares of Company common stock:

NOW, THEREFORE, the parties agree that the Agreement is amended as follows:

1.             Certain Definitions .

(a)           The definition of Shares is amended to read as follows:

Shares ” means up to 16,000,000 shares of common stock, no par value, of the Company issued by the Company pursuant to a Stock Purchase Agreement.

(b)           The definition of Stock Purchase Agreement is amended to read as follows:

 “ Stock Purchase Agreement ” means (i) a Stock Purchase Agreement, dated September 2009, pursuant to which the Company agreed to issue and sell up to an aggregate of 6,000,000 Shares to certain Holders, (ii) a Stock Purchase Agreement, of even date, pursuant to which the Company agreed to issue and sell up to an aggregate of 3,000,000 Shares to George Karfunkel; and (iii) a Stock Purchase Agreement, dated August 2011, pursuant to which the Company agreed to issue and sell up to an aggregate of 7,000,000 Shares to BioTime, Inc.

2.             Other Provisions . Except as amended by the foregoing amendments, the terms of the Agreement shall remain in full force and effect. Capitalized terms not otherwise defined herein have the meaning ascribed in the Agreement.

3.             Agreement to be Bound . By executing this Amendment, BioTime, Inc. agrees to be bound by the terms of the Agreement, as amended hereby.
 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

THE COMPANY:

ONCOCYTE CORPORATION
 
     
By
/s/Robert W. Peabody
 
 
Robert Peabody,
 
 
Senior Vice President and
 
 
Chief Operating Officer
 

HOLDERS:

/s/George Karfunkel
 
George Karfunkel
 

Address for Notice: 1671 52 nd Street
Brooklyn, NY 11204

BioTime, Inc.

By
/s/Robert W. Peabody
 
 
Robert Peabody,
 
 
Senior Vice President and
 
 
Chief Operating Officer
 

Address for Notice: 1301 Harbor Bay Parkway, Suite 100
Alameda, California 94502
Attention: Robert W. Peabody, Chief Financial Officer
 
 
2


Exhibit 10.10
 
SECOND   AMENDEMENT OF REGISTRATION RIGHTS AGREEMENT

This Second Amendment of Registration Rights Agreement (“Agreement”) is entered into as of May 8, 2015 by and between OncoCyte Corporation, a California corporation (the “Company”), and the undersigned Holders.

WHERAS, the Company has previously entered into a Registration Rights Agreement, during September 2009 (the “Agreement”) pursuant to which the Company has agreed to register for sale under the Act up to 6,000,000 shares of common stock of the Company issued to certain Holders, and a Stock Purchase Agreement, of even date, under which the Company is issuing and selling to holders an additional 10,000,000 shares of Company common stock;

WHEREAS, the Company and Holders have entered into and certain Stock Subscription Agreements, of like tenor, pursuant to which the Company agreed to issue and sell up to an additional 9,090,910 shares of Company common stock;

NOW, THEREFORE, the parties agree that the Agreement is amended as follows:

1.             Certain Definitions .

(a)           The definition of Shares is amended to read as follows:

Shares ” means up to 25,090,910 shares of common stock, no par value, of the Company issued by the Company pursuant to the Stock Purchase Agreement.

(b)           The definition of Stock Purchase Agreement is amended to read as follows:

 “ Stock Purchase Agreement ” means, collectively, (i) a Stock Purchase Agreement, dated September 2009, pursuant to which the Company agreed to issue and sell up to an aggregate of 6,000,000 Shares to certain Holders, (ii) a Stock Purchase Agreement, dated August 2011, pursuant to which the Company agreed to issue and sell up to an aggregate of 3,000,000 Shares to George Karfunkel; (iii) a Stock Purchase Agreement, dated August 2011, pursuant to which the Company agreed to issue and sell up to an aggregate of 7,000,000 Shares to BioTime, Inc.; and (iv) Stock Subscription Agreements, of like tenor, executed by the Company as of May 8, 2015, pursuant to which the Company agreed to issue and sell up to an aggregate of 9,090,910 Shares to the shareholders of the Company.

2.              Other Provisions . Except as amended by the foregoing amendments, the terms of the Agreement shall remain in full force and effect. Capitalized terms not otherwise defined herein have the meaning ascribed in the Agreement.

3.              Agreement to be Bound . By executing this Amendment, BioTime, Inc. agrees to be bound by the terms of the Agreement, as amended hereby.
 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

THE COMPANY:

ONCOCYTE CORPORATION

By
/s/ Robert W. Peabody
 
 
Robert Peabody,
 
 
Chief Financial Officer
 

HOLDERS:

/s/George Karfunkel
 
George Karfunkel
 

Address for Notice: 1671 52 nd Street
Brooklyn, NY 11204

/s/ Bernard Karfunkel
 
Bernard Karfunkel
 

Address for Notice: 1671 52 nd Street
Brooklyn, NY 11204

BioTime, Inc.

By
/s/Robert W. Peabody
 
 
Robert Peabody,
 
 
Chief Financial Officer
 

Address for Notice: 1301 Harbor Bay Parkway, Suite 100
Alameda, California 94502
Attention: Robert W. Peabody, Chief Financial Officer
 
 
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Exhibit 10.11
 
STOCK SUBSCRIPTION AGREEMENT

ONCOCYTE CORPORATION
 
READ THIS AGREEMENT CAREFULLY BEFORE YOU INVEST

The shares of common stock, no par value (“Shares”) have not been registered under the Securities Act of 1933, as amended, or applicable state securities laws and may not be offered for sale, sold, transferred, pledged or hypothecated to any person in the absence of an effective registration statement covering such Shares (or an exemption from such registration) and an opinion of counsel satisfactory to OncoCyte Corporation to the effect that such transfer or exercise complies with applicable securities laws.
 

SUBSCRIPTION AGREEMENT

This Agreement is entered into by George Karfunkel (“Subscriber”) and OncoCyte Corporation, a California corporation (the “Company).

1.               Subscription Offer .

(a)              Primary Subscription. The Company is offering to each registered holder (each a “Shareholder”) of shares of Company common stock, no par value (“Shares”), other than BioTime, Inc. the opportunity to subscribe to and purchase their respective pro rata percentage (“Allocation”) of a total of 3,000,000 Shares (the “Primary Subscription Shares”) at a price of $1.10 per Share (the “Subscription Price”).  A Shareholder’s Allocation shall be the total number of Primary Subscription Shares multiplied by the percentage determined by dividing (A) the total number of Shares owned of record by the Shareholder immediately before the Subscription Offer, by (B) the total number of Shares owned by all Shareholders other than BioTime in the aggregate immediately before the Subscription Offer.

Subscriber
 
Pro Rata Percentage
 
Shares in Allocation
George Karfunkel
 
33.3333333333333 %
 
1,000,000
 
(b)              BioTime Subscription .  The Company will also offer to BioTime the opportunity to subscribe to and purchase   6,000,000 Shares (the “BioTime Allocation”) at the Subscription Price.   As of April 15, 2015, the total indebtedness of the Company to BioTime exceeded $6,600,000. BioTime may purchase 3,000,000 Shares of the BioTime Allocation pursuant to the Subscription Offer by cancelling $3,300,000 of the indebtedness of the Company, and, in addition, the Company may deliver to BioTime a convertible promissory note with respect to an additional $3,300,000 of indebtedness (the “Note”).  The Note will bear interest at the rate of 1% per annum, will contain customary default provisions, and will be convertible by BioTime into 3,000,000 Shares at the Subscription Price, subject to customary anti-dilution adjustments, on the Maturity Date. The Maturity Date will be the earlier of the date 18 months from the Expiration Date (defined below or any extension thereof) or the date six months after the date on which the Company completes a firm commitment underwritten initial public offering of Shares registered under the Securities Act of 1933, as amended.  If the Shareholders other than BioTime do not, in the aggregate, purchase 3,000,000 Shares in the Subscription Offer on or before the Expiration Date, BioTime may, in lieu of accepting the Note, convert into Shares at the Subscription Price the $3,300,000 of the Company indebtedness that would otherwise have been evidenced by the Note.

(c)              Expiration of Subscription Offer.   The Company’s offer to sell to the Shareholders their respective Allocations of Shares is referred to as the “Subscription Offer.”  The Subscription Offer shall expire on the Expiration Date and may not be accepted by a Shareholder after that date.  The Expiration Date is 5:00 p.m. California time on April 29, 2015.
 
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(d)              Assignment of Rights .  Prior to the Expiration Date, any Shareholder may assign, in whole or in part, to another Shareholder the assigning Shareholder’s rights to purchase their Allocation of Shares in the Subscription Offer.  A Shareholder who so assigns their rights shall notify the Company in writing of such assignment on or before the Expiration Date.

2.               Subscription For Shares .

(a)              Subscription Procedure. Subscriber may irrevocably subscribe to, and thereby irrevocable agree to purchase, on the terms and conditions of this Agreement, all or a portion of the Subscriber’s Allocation in the Subscription Offer by (a) entering the number of Shares to be purchased and the total Subscription Price for such Shares in the table on the Signature Page of this Agreement, (b) signing and dating this Agreement, and (c) delivering this Agreement, completed and signed as provided in clause (a) and (b), along with payment in full of the Subscription Price for the number of Shares to be purchased, to the Company as provided in this Agreement not later than the Expiration Date.

(b)              Subscription Irrevocable .  This Agreement will become an irrevocable obligation of Subscriber to purchase the number of Shares shown on the Signature Page, at the Subscription Price per Share, when a copy of this Agreement, signed by Subscriber, is countersigned by the Company.

(c)              Payment.   Subscriber shall pay the Subscription Price of the Shares by check for good funds payable to the order of the Company or by wire transfer to such account of the Company as the Company may specify.  If this Agreement is rejected or not accepted for any reason by the Company, all sums paid by the Subscriber will be promptly returned, without interest or deduction.

(d)              Purchase of Shares by BioTime.   If the Shareholders fail to purchase their entire Allocations of Shares in the Subscription Offer, then BioTime may, within sixty (60) days after the Expiration Date, purchase for cash or through the cancellation of Company indebtedness, at the Subscription Price, any or all of the Shares not so purchased by the other Shareholders.

(e)              Offer of Shares to New Investors.   Any of the Primary Subscription Shares not purchased by Shareholders and any Shares not purchased by BioTime, in the Subscription Offer may be offered and sold by the Company to new investors at such prices and on such terms as the Company may determine.

3.               Registration Rights .  If the Subscriber purchases Shares in the Subscription Offer, the Company will enter into an amendment to the September 2009 Registration Rights Agreement pursuant to which the Company will agree to register the Shares purchased by the Subscriber in the Subscription Offer for sale under the Securities Act of 1933, as amended (the “Securities Act”).
 
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4.               Investment Representations.   Subscriber represents and warrants to the Company that:

(a)              Due Diligence . Subscriber has made such investigation of the Company as Subscriber deemed appropriate for determining to acquire (and thereby make an investment in) the Shares.  In making such investigation, Subscriber has had access to such financial and other information concerning the Company as Subscriber requested.  Subscriber acknowledges and understands that the Company is an early stage venture engaged in research and development, without only limited history of operations, and has received only limited capital.  Subscriber acknowledges receipt of the Articles of Incorporation and Bylaws of the Company, and such copies of the minutes of the proceedings of the Board of Directors of the Company as Subscriber may have requested from the Company.  Subscriber has had a reasonable opportunity to ask questions of and receive answers from the executive officers of the Company concerning the Company, and to obtain such additional information concerning the Company as may have been possessed or obtainable by the Company without unreasonable effort or expense. All such questions have been answered to Subscriber’s satisfaction.

(b)              Unregistered Offer and Sale. Subscriber understands that the Shares are being offered and sold without registration under the Securities Act, or qualification under the California Corporate Securities Law of 1968, or under the laws of any other states, in reliance upon the exemptions from such registration and qualification requirements for non-public offerings.  Subscriber acknowledges and understands that the availability of the aforesaid exemptions depends in part upon the accuracy of certain of the representations, declarations and warranties made by Subscriber, and the information provided by Subscriber, in this Agreement,  Subscriber is making such representations, declarations and warranties, and is providing such information, with the intent that the same may be relied upon by the Company and its officers and directors in determining Subscriber’s suitability to acquire the Shares.  Subscriber understands and acknowledges that no federal, state or other agency has reviewed or endorsed the offering of the Shares or made any finding or determination as to the fairness of the offering or completeness of the information provided to Subscriber by the Company.

(c)              Restrictions on Transfer . Subscriber understands that the Shares may not be offered, sold, or transferred in any manner unless subsequently registered under the Securities Act, or unless there is an exemption from such registration available for such offer, sale or transfer.  Subscriber agrees that Subscriber will not sell, offer for sale, or transfer any of the Shares unless those Shares have been registered under the Securities Act, or unless there is an exemption from such registration and an opinion of counsel reasonably acceptable to the Company has been rendered stating that such offer, sale, or transfer will not violate any United States federal or state securities laws.  Subscriber acknowledges that (i) the certificates evidencing the Shares will contain a legend to the effect that transfer is prohibited except pursuant to registration under the Securities Act, or pursuant to an available exemption from registration under the Securities Act, and (ii) The Company will refuse to register the transfer, and will issue instructions to any transfer agent and registrar of the Shares to refuse to register the transfer, of any Shares not made pursuant to registration under the Securities Act or pursuant to an available exemption from registration under the Securities Act.
 
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(d)              Knowledge and Experience. Subscriber has such knowledge and experience in financial and business matters to enable Subscriber to utilize the information provided or otherwise made available to Subscriber by the Company to evaluate the merits and risks of an investment in the Shares and to make an informed investment decision.

(e)              Investment Intent.  Subscriber is acquiring the Shares solely for Subscriber’s own account and for investment purposes, and not with a view to, or for sale in connection with, any distribution of the Shares other than pursuant to an effective registration statement under the Securities Act or unless there is an exemption from such registration available for such offer, sale or transfer, such as SEC Rule 144.

(f)               Forward Looking Statements.  Information provided to Subscriber by the Company include matters that may be considered “forward looking” statements within the meaning of Section 27(a) of the Securities Act and Section 21(e) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which statements Subscriber acknowledges and agrees are not guarantees of future performance and involve a number of risks and uncertainties, and with respect to which the Company makes no representations or warranties.  Subscriber understands that the level of disclosure provided by the Company is less than that which would be provided in a securities offering registered under the Securities Act in reliance on the sophistication and investment experience of Subscriber.

(g)              No Assurance of Return on Investment .  It has never been represented, guaranteed or warranted to Subscriber by the Company or BioTime or any officer, director, employee, or agent of the Company or BioTime, that Subscriber will realize any specific value, sale price, or profit as a result of acquiring the Shares.

(h)              Nonpublic Information.  Subscriber understands that (1) this Agreement and other information provided to Subscriber by the Company contains confidential financial information about the Company and BioTime, Inc. that has not yet been publicly disclosed by the Company or BioTime, and therefore may be deemed material non-public information, (2) the Company is providing Subscriber the confidential information solely to satisfy its disclosure obligations under the Securities Act in connection with the offer and sale of the Shares to Subscriber pursuant to this Agreement, and (3) until such time as BioTime files a Form 8-K or other report under the Exchange Act with the Securities and Exchange Commission, Subscriber shall not (A) disclose to any other person any of the information contained in this Agreement or otherwise provided to Subscriber concerning the Company that has not previously been disclosed in a report filed by BioTime under the Exchange Act, or (B) purchase or sell any common shares of BioTime.
 
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(i)                Authority; Enforceability .  The Subscriber has the power and authority to execute and deliver, and to perform all of Subscriber’s obligations under, this Agreement.  This Agreement has been duly executed and delivered by Subscriber.  This Agreement is the valid and binding agreements of the Subscriber, enforceable in accordance with their respective terms, except to the extent limited by any bankruptcy, insolvency, or similar law affecting the rights of creditors generally.

(j)                No Conflict .  The execution and delivery of this Agreement and consummation of the transactions contemplated under this Agreement, including the purchase of the Shares, by the Subscriber do not and will not violate any provisions of (i)any rule, regulation, statute, or law applicable to the Subscriber, (ii)the terms of any order, writ, or decree of any court or judicial or regulatory authority or body by which the Subscriber is bound, or (iii) if the Subscriber is not a natural person, the certificate of incorporation, bylaws, or similar charter or governing documents of the Subscriber.

5.               Accredited Investor Qualification .  Subscriber represents that Subscriber qualifies as an “accredited investor” under Regulation D, promulgated under the Securities Act, in the following manner.  (Please check or initial all that apply to verify that you qualify as an “accredited investor.”)

☒ (a) Subscriber is a natural person whose net worth, or joint net worth with spouse, at the date of purchase exceeds $1,000,000 (not including the value of Subscriber’s principal residence and excluding mortgage debt secured by Subscriber’s principal residence up to the estimated fair market value of the home, except that any mortgage debt incurred by Subscriber within 60 days prior to the date of this Agreement shall not be excluded from the determination of Subscriber’s net worth unless such mortgage debt was incurred to acquire the residence).

☐ (b) Subscriber is a natural person whose individual gross income (excluding that of spouse) exceeded $200,000 in each of the past two calendar years, and who reasonably expects individual gross income exceeding $200,000 in the current calendar year.

☐ (c) Subscriber is a natural person whose joint gross income with spouse exceeded $300,000 in each of the past two calendar years, and who reasonably expects joint gross income with spouse exceeding $300,000 in the current calendar year.

☐ (d) Subscriber is a tax-exempt organization described in Section 501(c) (3) of the Internal Revenue Code, or a corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring Shares, with total assets in excess of $5,000,000.

☐ (e) Subscriber is a trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring Shares, whose purchase is directed by a person who has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of an investment in the Shares.
 
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6.               Miscellaneous .

(a)              This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of California, as such laws are applied to contracts by and among residents of California, and which are to be performed wholly within California.

(b)              The representations and warranties set forth herein shall survive the sale of Shares to Subscriber.

(c)              Neither this Agreement nor any provisions hereof shall be modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.

(d)              Any notice, demand or other communication that any party hereto may be required, or may elect, to give shall be sufficiently given if (i) deposited, postage prepaid, in the United States mail addressed to such address as may be specified under this Agreement, (ii) delivered personally at such address, (iii) delivered to such address by air courier delivery service, or (iv) delivered by electronic mail (email) to such electronic mail address as may be specified under this Agreement.  The address for notice to the Company is: OncoCyte Corporation, 1301 Harbor Bay Parkway, Suite 100, Alameda, California 94502; Attention: Robert W. Peabody, Chief Financial Officer; email; rpeabody@biotimemail.com.  The address for notice of Subscriber is shown in Section 7.  Either party may change its address for notice by giving the other party notice of a new address in the manner provided in this Agreement.  Any notice sent by mail shall be deemed given three days after being deposited in the United States mail, postage paid, and addressed as provided in this Agreement.

(e)              This Agreement may be executed through the use of separate signature pages or in any number of counterparts, and each of such counterparts shall, for all purposes, constitute one agreement binding on all the parties, notwithstanding that all parties are not signatories to the same counterpart. Counterparts sent by electronic mail, facsimile, or other electronic means, including signatures thereon, shall be deemed originals.

(f)               Except as otherwise provided herein, the Agreement shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns.  If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.

(g)              This Agreement contains the entire agreement of the parties, and there are no representations, covenants or other agreements except for those stated or referred to herein.

(h)              This Agreement is not transferable or assignable by the undersigned except as may be provided herein.
 
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7.               Subscriber Information .

 
(a)
Address:
1671 52 nd Street, Brooklyn, NY 11204
 
 
(b)
email:
   
 
 
(c)
Telephone:
(   )
 
 
(d)
Social Security Number:
   
   
or Taxpayer Identification Number:
   
 
 
(e)
State of Residence or Principal Place of Business:
New York
 
SUBSCRIBER SIGNATURE

IN WITNESS WHEREOF, the undersigned has entered into this Agreement and hereby agrees to purchase Shares for the price stated above and upon the terms and conditions set forth herein.  The undersigned hereby agrees to all of the terms of the Registration Rights Agreement and agrees to be bound by the terms and conditions thereof.

Dated:  April __, 2015
 
Primary Subscription:

Number of Shares
 
Total Subscription Price in Primary Subscription
 
1,000,000
x $1.10 =
$     1,100,000
 
 
 
/s/ George Karfunkel
 
 
George Karfunkel
 
 
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ACCEPTANCE BY COMPANY

The Company hereby agrees to sell to the Subscriber the Shares referenced above in reliance upon all the representations, warranties, terms and conditions contained in this Agreement.

IN WITNESS WHEREOF, the undersigned, on behalf of the Company, has executed this acceptance as of the date set forth below.

Dated:  May 8, 2015
ONCOCYTE CORPORATION
     
 
By:
  /s/ Joseph Wagner
   
  Joseph Wagner
     
 
Title: President
 
 
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Exhibit 10.12
 
STOCK SUBSCRIPTION AGREEMENT

ONCOCYTE CORPORATION

READ THIS AGREEMENT CAREFULLY BEFORE YOU INVEST

The shares of common stock, no par value (“Shares”) have not been registered under the Securities Act of 1933, as amended, or applicable state securities laws and may not be offered for sale, sold, transferred, pledged or hypothecated to any person in the absence of an effective registration statement covering such Shares (or an exemption from such registration) and an opinion of counsel satisfactory to OncoCyte Corporation to the effect that such transfer or exercise complies with applicable securities laws.
 

SUBSCRIPTION AGREEMENT

This Agreement is entered into by Bernard Karfunkel (“Subscriber”) and OncoCyte Corporation, a California corporation (the “Company”).

1.             Subscription Offer .
 
(a)              Primary Subscription. The Company is offering to each registered holder (each a “Shareholder”) of shares of Company common stock, no par value (“Shares”), other than BioTime, Inc. the opportunity to subscribe to and purchase their respective pro rata percentage (“Allocation”) of a total of 3,000,000 Shares (the “Primary Subscription Shares”) at a price of $1.10 per Share (the “Subscription Price”).  A Shareholder’s Allocation shall be the total number of Primary Subscription Shares multiplied by the percentage determined by dividing (A) the total number of Shares owned of record by the Shareholder immediately before the Subscription Offer, by (B) the total number of Shares owned by all Shareholders other than BioTime in the aggregate immediately before the Subscription Offer.

Subscriber
 
Pro Rata Percentage
 
Shares in Allocation
Bernard Karfunkel
 
66.6666666666667%
 
2,000,000

(b)              BioTime Subscription .  The Company will also offer to BioTime the opportunity to subscribe to and purchase   6,000,000 Shares (the “BioTime Allocation”) at the Subscription Price.   As of April 15, 2015, the total indebtedness of the Company to BioTime exceeded $6,600,000. BioTime may purchase 3,000,000 Shares of the BioTime Allocation pursuant to the Subscription Offer by cancelling $3,300,000 of the indebtedness of the Company, and, in addition, the Company may deliver to BioTime a convertible promissory note with respect to an additional $3,300,000 of indebtedness (the “Note”).  The Note will bear interest at the rate of 1% per annum, will contain customary default provisions, and will be convertible by BioTime into 3,000,000 Shares at the Subscription Price, subject to customary anti-dilution adjustments, on the Maturity Date. The Maturity Date will be the earlier of the date 18 months from the Expiration Date (defined below or any extension thereof) or the date six months after the date on which the Company completes a firm commitment underwritten initial public offering of Shares registered under the Securities Act of 1933, as amended.  If the Shareholders other than BioTime do not, in the aggregate, purchase 3,000,000 Shares in the Subscription Offer on or before the Expiration Date, BioTime may, in lieu of accepting the Note, convert into Shares at the Subscription Price the $3,300,000 of the Company indebtedness that would otherwise have been evidenced by the Note.

(c)              Expiration of Subscription Offer.   The Company’s offer to sell to the Shareholders their respective Allocations of Shares is referred to as the “Subscription Offer.”  The Subscription Offer shall expire on the Expiration Date and may not be accepted by a Shareholder after that date.  The Expiration Date is 5:00 p.m. California time on April 29, 2015.
 
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(d)              Assignment of Rights .  Prior to the Expiration Date, any Shareholder may assign, in whole or in part, to another Shareholder the assigning Shareholder’s rights to purchase their Allocation of Shares in the Subscription Offer.  A Shareholder who so assigns their rights shall notify the Company in writing of such assignment on or before the Expiration Date.

2.             Subscription For Shares .

(a)              Subscription Procedure. Subscriber may irrevocably subscribe to, and thereby irrevocable agree to purchase, on the terms and conditions of this Agreement, all or a portion of the Subscriber’s Allocation in the Subscription Offer by (a) entering the number of Shares to be purchased and the total Subscription Price for such Shares in the table on the Signature Page of this Agreement, (b) signing and dating this Agreement, and (c) delivering this Agreement, completed and signed as provided in clause (a) and (b), along with payment in full of the Subscription Price for the number of Shares to be purchased, to the Company as provided in this Agreement not later than the Expiration Date.

(b)              Subscription Irrevocable .  This Agreement will become an irrevocable obligation of Subscriber to purchase the number of Shares shown on the Signature Page, at the Subscription Price per Share, when a copy of this Agreement, signed by Subscriber, is countersigned by the Company.

(c)              Payment.   Subscriber shall pay the Subscription Price of the Shares by check for good funds payable to the order of the Company or by wire transfer to such account of the Company as the Company may specify.  If this Agreement is rejected or not accepted for any reason by the Company, all sums paid by the Subscriber will be promptly returned, without interest or deduction.

(d)              Purchase of Shares by BioTime.   If the Shareholders fail to purchase their entire Allocations of Shares in the Subscription Offer, then BioTime may, within sixty (60) days after the Expiration Date, purchase for cash or through the cancellation of Company indebtedness, at the Subscription Price, any or all of the Shares not so purchased by the other Shareholders.

(e)              Offer of Shares to New Investors.   Any of the Primary Subscription Shares not purchased by Shareholders and any Shares not purchased by BioTime, in the Subscription Offer may be offered and sold by the Company to new investors at such prices and on such terms as the Company may determine.

3.             Registration Rights .  If the Subscriber purchases Shares in the Subscription Offer, the Company will enter into an amendment to the September 2009 Registration Rights Agreement pursuant to which the Company will agree to register the Shares purchased by the Subscriber in the Subscription Offer for sale under the Securities Act of 1933, as amended (the “Securities Act”).
 
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4.             Investment Representations.   Subscriber represents and warrants to the Company that:

(a)              Due Diligence . Subscriber has made such investigation of the Company as Subscriber deemed appropriate for determining to acquire (and thereby make an investment in) the Shares.  In making such investigation, Subscriber has had access to such financial and other information concerning the Company as Subscriber requested.  Subscriber acknowledges and understands that the Company is an early stage venture engaged in research and development, without only limited history of operations, and has received only limited capital.  Subscriber acknowledges receipt of the Articles of Incorporation and Bylaws of the Company, and such copies of the minutes of the proceedings of the Board of Directors of the Company as Subscriber may have requested from the Company.  Subscriber has had a reasonable opportunity to ask questions of and receive answers from the executive officers of the Company concerning the Company, and to obtain such additional information concerning the Company as may have been possessed or obtainable by the Company without unreasonable effort or expense. All such questions have been answered to Subscriber’s satisfaction.

(b)              Unregistered Offer and Sale. Subscriber understands that the Shares are being offered and sold without registration under the Securities Act, or qualification under the California Corporate Securities Law of 1968, or under the laws of any other states, in reliance upon the exemptions from such registration and qualification requirements for non-public offerings.  Subscriber acknowledges and understands that the availability of the aforesaid exemptions depends in part upon the accuracy of certain of the representations, declarations and warranties made by Subscriber, and the information provided by Subscriber, in this Agreement,  Subscriber is making such representations, declarations and warranties, and is providing such information, with the intent that the same may be relied upon by the Company and its officers and directors in determining Subscriber’s suitability to acquire the Shares.  Subscriber understands and acknowledges that no federal, state or other agency has reviewed or endorsed the offering of the Shares or made any finding or determination as to the fairness of the offering or completeness of the information provided to Subscriber by the Company.

(c)              Restrictions on Transfer . Subscriber understands that the Shares may not be offered, sold, or transferred in any manner unless subsequently registered under the Securities Act, or unless there is an exemption from such registration available for such offer, sale or transfer.  Subscriber agrees that Subscriber will not sell, offer for sale, or transfer any of the Shares unless those Shares have been registered under the Securities Act, or unless there is an exemption from such registration and an opinion of counsel reasonably acceptable to the Company has been rendered stating that such offer, sale, or transfer will not violate any United States federal or state securities laws.  Subscriber acknowledges that (i) the certificates evidencing the Shares will contain a legend to the effect that transfer is prohibited except pursuant to registration under the Securities Act, or pursuant to an available exemption from registration under the Securities Act, and (ii) The Company will refuse to register the transfer, and will issue instructions to any transfer agent and registrar of the Shares to refuse to register the transfer, of any Shares not made pursuant to registration under the Securities Act or pursuant to an available exemption from registration under the Securities Act.
 
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(d)              Knowledge and Experience. Subscriber has such knowledge and experience in financial and business matters to enable Subscriber to utilize the information provided or otherwise made available to Subscriber by the Company to evaluate the merits and risks of an investment in the Shares and to make an informed investment decision.

(e)              Investment Intent.  Subscriber is acquiring the Shares solely for Subscriber’s own account and for investment purposes, and not with a view to, or for sale in connection with, any distribution of the Shares other than pursuant to an effective registration statement under the Securities Act or unless there is an exemption from such registration available for such offer, sale or transfer, such as SEC Rule 144.

(f)              Forward Looking Statements.  Information provided to Subscriber by the Company include matters that may be considered “forward looking” statements within the meaning of Section 27(a) of the Securities Act and Section 21(e) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which statements Subscriber acknowledges and agrees are not guarantees of future performance and involve a number of risks and uncertainties, and with respect to which the Company makes no representations or warranties.  Subscriber understands that the level of disclosure provided by the Company is less than that which would be provided in a securities offering registered under the Securities Act in reliance on the sophistication and investment experience of Subscriber.

(g)              No Assurance of Return on Investment .  It has never been represented, guaranteed or warranted to Subscriber by the Company or BioTime or any officer, director, employee, or agent of the Company or BioTime, that Subscriber will realize any specific value, sale price, or profit as a result of acquiring the Shares.

(h)              Nonpublic Information.  Subscriber understands that (1) this Agreement and other information provided to Subscriber by the Company contains confidential financial information about the Company and BioTime, Inc. that has not yet been publicly disclosed by the Company or BioTime, and therefore may be deemed material non-public information, (2) the Company is providing Subscriber the confidential information solely to satisfy its disclosure obligations under the Securities Act in connection with the offer and sale of the Shares to Subscriber pursuant to this Agreement, and (3) until such time as BioTime files a Form 8-K or other report under the Exchange Act with the Securities and Exchange Commission, Subscriber shall not (A) disclose to any other person any of the information contained in this Agreement or otherwise provided to Subscriber concerning the Company that has not previously been disclosed in a report filed by BioTime under the Exchange Act, or (B) purchase or sell any common shares of BioTime.

(i)                 Authority; Enforceability .  The Subscriber has the power and authority to execute and deliver, and to perform all of Subscriber’s obligations under, this Agreement.  This Agreement has been duly executed and delivered by Subscriber.  This Agreement is the valid and binding agreements of the Subscriber, enforceable in accordance with their respective terms, except to the extent limited by any bankruptcy, insolvency, or similar law affecting the rights of creditors generally.
 
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(j)               No Conflict .  The execution and delivery of this Agreement and consummation of the transactions contemplated under this Agreement, including the purchase of the Shares, by the Subscriber do not and will not violate any provisions of (i) any rule, regulation, statute, or law applicable to the Subscriber, (ii) the terms of any order, writ, or decree of any court or judicial or regulatory authority or body by which the Subscriber is bound, or (iii) if the Subscriber is not a natural person, the certificate of incorporation, bylaws, or similar charter or governing documents of the Subscriber.

5.              Accredited Investor Qualification .  Subscriber represents that Subscriber qualifies as an “accredited investor” under Regulation D, promulgated under the Securities Act, in the following manner.  (Please check or initial all that apply to verify that you qualify as an “accredited investor.”)

☒(a) Subscriber is a natural person whose net worth, or joint net worth with spouse, at the date of purchase exceeds $1,000,000 (not including the value of Subscriber’s principal residence and excluding mortgage debt secured by Subscriber’s principal residence up to the estimated fair market value of the home, except that any mortgage debt incurred by Subscriber within 60 days prior to the date of this Agreement shall not be excluded from the determination of Subscriber’s net worth unless such mortgage debt was incurred to acquire the residence).

☐(b) Subscriber is a natural person whose individual gross income (excluding that of spouse) exceeded $200,000 in each of the past two calendar years, and who reasonably expects individual gross income exceeding $200,000 in the current calendar year.

☐(c) Subscriber is a natural person whose joint gross income with spouse exceeded $300,000 in each of the past two calendar years, and who reasonably expects joint gross income with spouse exceeding $300,000 in the current calendar year.

☐(d) Subscriber is a tax-exempt organization described in Section 501(c) (3) of the Internal Revenue Code, or a corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring Shares, with total assets in excess of $5,000,000.

☐(e) Subscriber is a trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring Shares, whose purchase is directed by a person who has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of an investment in the Shares.
 
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6.             Miscellaneous .

(a)              This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of California, as such laws are applied to contracts by and among residents of California, and which are to be performed wholly within California.

(b)              The representations and warranties set forth herein shall survive the sale of Shares to Subscriber.

(c)              Neither this Agreement nor any provisions hereof shall be modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.

(d)              Any notice, demand or other communication that any party hereto may be required, or may elect, to give shall be sufficiently given if (i) deposited, postage prepaid, in the United States mail addressed to such address as may be specified under this Agreement, (ii) delivered personally at such address, (iii) delivered to such address by air courier delivery service, or (iv) delivered by electronic mail (email) to such electronic mail address as may be specified under this Agreement.  The address for notice to the Company is: OncoCyte Corporation, 1301 Harbor Bay Parkway, Suite 100, Alameda, California 94502; Attention: Robert W. Peabody, Chief Financial Officer; email; rpeabody@biotimemail.com.  The address for notice of Subscriber is shown in Section 7.  Either party may change its address for notice by giving the other party notice of a new address in the manner provided in this Agreement.  Any notice sent by mail shall be deemed given three days after being deposited in the United States mail, postage paid, and addressed as provided in this Agreement.

(e)              This Agreement may be executed through the use of separate signature pages or in any number of counterparts, and each of such counterparts shall, for all purposes, constitute one agreement binding on all the parties, notwithstanding that all parties are not signatories to the same counterpart. Counterparts sent by electronic mail, facsimile, or other electronic means, including signatures thereon, shall be deemed originals.

(f)              Except as otherwise provided herein, the Agreement shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns.  If the undersigned is more than one person, the obligation of the undersigned shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.

(g)              This Agreement contains the entire agreement of the parties, and there are no representations, covenants or other agreements except for those stated or referred to herein.

(h)              This Agreement is not transferable or assignable by the undersigned except as may be provided herein.
 
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7.             Subscriber Information .
 
 
(a)
Address:
1671 52 nd Street, Brooklyn, NY 11204
 
 
(b)
email:
 
 
 
(c)
Telephone:
  (   )
 
 
(d)
Social Security Number:
  
   
or Taxpayer Identification Number:
  
 
 
(e)
State of Residence or Principal Place of Business:
New York
 
SUBSCRIBER SIGNATURE

IN WITNESS WHEREOF, the undersigned has entered into this Agreement and hereby agrees to purchase Shares for the price stated above and upon the terms and conditions set forth herein.  The undersigned hereby agrees to all of the terms of the Registration Rights Agreement and agrees to be bound by the terms and conditions thereof.

Dated:  April __, 2015

Primary Subscription:

Number of Shares
 
Total Subscription Price in Primary Subscription
         
2,000,000
x $1.10 =
$
2,200,000
 
         
     
/s/ Bernard Karfunkel
 
     
Bernard Karfunkel
 
 
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ACCEPTANCE BY COMPANY
 
The Company hereby agrees to sell to the Subscriber the Shares referenced above in reliance upon all the representations, warranties, terms and conditions contained in this Agreement.

IN WITNESS WHEREOF, the undersigned, on behalf of the Company, has executed this acceptance as of the date set forth below.

Dated:  May 8, 2015
ONCOCYTE CORPORATION  
       
 
By:
/s/ Joseph Wagner
 
     
Joseph Wagner
 
 
 
Title:
President
 
 
 
8


Exhibit 10.13
 
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND IS BEING ISSUED IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION OR QUALIFICATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.  THIS NOTE IS SUBJECT TO RESTRICTION ON TRANSFER AND RESALE AND MAY NOT BE RESOLD OR OTHERWISE TRANSFERRED EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR QUALIFICATION OR EXEMPTION THEREFROM.

CONVERTIBLE   PROMISSORY NOTE

$3,300,000
May 8, 2015

FOR VALUE RECEIVED, OncoCyte Corporation, a California corporation ( Borrower ), promises to pay to BioTime, Inc., a California corporation ( Lender ), the principal sum of Three Million Three Hundred Thousand Dollars ($3,300,000) and to pay interest on the principal remaining unpaid from time to time from the date of this Convertible Promissory Note ( Note ) until the date of payment in full or conversion into Conversion Shares (as provided below), payable as set forth below.
 
1.                    Terms and Conditions of Payment

(a)                   Interest .  Interest shall accrue and be payable at the rate of 1% per annum.  Interest shall be computed on the basis of a 365-day year and the actual number of days elapsed.

(b)                   Payment .  All unpaid accrued interest in arrears shall be due and payable on January 2 of each year until the Maturity Date when the entire unpaid principal balance of this Note, plus all unpaid accrued interest shall be due and payable in full. The Maturity Date shall be November 30, 2016 or such earlier date on which payment in full may become due under Section 5.

(c)                   Date of Payment.   If the date on which a payment of principal or interest on this Note is due is a day other than a Business Day, then payment of such principal or interest need not be made on such date but may be made on the next succeeding Business Day.  A Business Day shall be a day other than a Saturday, Sunday, or other day on which banks in San Francisco, California are permitted or required to be closed.

(d)                  Application of Payments.   All payments shall be applied first to costs of collection, next to late charges or other sums owing Lender, next to accrued interest, and then to principal, or in such other order or proportion as Lender, in Lender’s sole discretion, may determine.
 

(e)                   Currency.   All payments shall be made in United States Dollars.
 
(f)                    Default Interest Rate; Late Payment Charge.   In the event that any principal or interest is not paid within five (5) days from on the date on which the same is due and payable, such payment shall continue as an obligation of the Borrower, and interest from the due date on the entire unpaid balance of this Note shall accrue at the lesser of (i) fifteen percent (15%) per annum, or (ii) the highest interest rate permitted under applicable law (the Default Rate ), until all past due amounts are paid in full.  From and after the Maturity Date or upon acceleration of this Note, the entire unpaid principal balance of this Note with all unpaid interest accrued thereon, and any and all other fees and charges then due at such maturity, shall bear interest at the Default Rate.

2.                    Prepayment .  Borrower may not prepay principal in whole or in part without the prior written consent of Lender, which consent Lender may grant or withhold in its sole and absolute discretion.
 
3.                    Conversion Rights.   Subject to and upon compliance with the provisions of this Section 3, this Note shall be convertible, in whole or in part, at the election of the holder, at any time and from time to time prior to the payment in full of the principal balance and interest accrued thereon, into fully paid and nonassessable Conversion Shares at the Conversion Price then in effect.  Upon the conversion of this Note or any part hereof, any accrued but unpaid interest with respect to the principal amount of this Note so converted shall likewise be converted into Conversion Shares. Lender or any other holder of this Note may convert this Note into Conversion Shares at any time on or after the first to occur of (i) November 8, 2016, (ii) the date that is six months after the first closing date on which Borrower completes a firm commitment underwritten initial public offering of its common stock or other capital stock registered under the Securities Act of 1933, as amended, and (iii) the occurrence of an Event of Default.

(a)                   Conversion Shares .  As used in this Note, the term Conversion Shares means shares of the common stock, no par value, of Borrower; provided that if Borrower shall effect a reclassification of its common stock (or any subsequent class or series of Conversion Shares), then, and in each such event, the class and series of shares constituting Conversion Shares shall be changed to reflect such reclassification such that upon conversion of the Note the holder shall receive the amount of securities of the class that such holder would have received had such conversion of the Note taken place and shares been issued immediately before such reclassification.

(b)                   Conversion Price .  The “ Conversion Price ” at which Conversion Shares shall initially be issuable upon conversion of this Note shall be $1.10 per share, subject to the adjustments set forth in Section 3(f).

(c)                   Number of Shares Issuable Upon Conversion .  This Note, or the portion hereof being converted, shall be converted into the number of Conversion Shares determined by dividing (i) the amount of principal and interest being converted by (ii) the Conversion Price in effect on the Conversion Date.
 
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(d)                  Mechanics of Conversion .  The holder of this Note may exercise the conversion right by surrendering this Note to the Secretary of the Borrower or any transfer agent of the Borrower, accompanied by written notice specifying the principal amount of this Note to be converted; provided, that all interest accrued on the amount of principal to be converted shall likewise be converted into Conversion Shares.  Conversion shall be deemed to have been effected on the later of the date when delivery of notice of an election to convert and this Note is made, or such later date, if any, specified in such notice. The date on which conversion is deemed to have been effected is referred to herein as the " Conversion Date ."  Subject to the provisions of Section 3(f)(iii)), as promptly as practicable after the Conversion Date, the Borrower shall issue and deliver to or upon the written order of such holder a certificate or certificates for the number of Conversion Shares to which such holder is entitled and a check or cash with respect to any fractional interest in any Conversion Share as provided in Section 3(e).  Subject to the provisions of Section 3(f)(iii), the person in whose name the certificate or certificates for Conversion Shares are to be issued shall be deemed to have become a holder of record of such Conversion Shares on the Conversion Date.  Upon conversion of only a portion of the principal amount of this Note, the Borrower shall issue and deliver to or upon the written order of the holder of this Note so surrendered for conversion, at the expense of the Borrower, a new Note of like tenor evidencing the unconverted portion of this Note so surrendered.

(e)                  Fractional Shares .  No fractional Conversion Share or scrip shall be issued upon conversion of this Note.  If more than one Note of like tenor shall be surrendered for conversion at any one time by the same holder, the number of Conversion Shares issuable upon conversion thereof shall be computed on the basis of the aggregate amount of principal and accrued interest payable under the Notes so surrendered.  Instead of any fractional Conversion Share which would otherwise be issuable upon conversion of this Note, the Borrower shall pay a cash adjustment in respect of such fractional interest in an amount equal to that fractional interest at the then Current Market Price.

(f)                   Conversion Price Adjustments .  The Conversion Price shall be subject to adjustment from time to time as follows:

(i)                Conversion Shares Dividends, Subdivisions, Reclassifications or Combinations .  If the Borrower shall (A) declare a dividend or make a distribution on its Conversion Shares in Conversion Shares, (B) subdivide or reclassify the outstanding Conversion Shares into a greater number of shares, or (C) combine or reclassify the outstanding Conversion Shares into a smaller number of shares, the Conversion Price in effect at the time of the record date for such dividend or distribution or the effective date of such subdivision, combination or reclassification shall be proportionately adjusted so that the holder of this Note surrendered for conversion after such date shall be entitled to receive the number of Conversion Shares which the holder would have owned or been entitled to receive after the event described in (A), (B), or (C) had this Note (or the portion of this Note surrendered for conversion if the holder elects to convert only a portion of this Note) been converted immediately prior to such event.  Successive adjustments in the Conversion Price shall be made whenever any event specified above shall occur.
 
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(ii)                Rounding of Calculations; Minimum Adjustment .  All calculations under this Section 3(f) shall be made to the nearest cent or to the nearest one hundredth (1/100th) of a share, as the case may be.  Any provision of this Section 3 to the contrary notwithstanding, no adjustment in the Conversion Price shall be made if the amount of such adjustment would be less than one cent ($.01), but any such amount shall be carried forward and an adjustment with respect thereto shall be made at the time of and together with any subsequent adjustment which, together with such amount and any other amount or amounts so carried forward, shall aggregate one cent ($.01) or more.  Notwithstanding the foregoing, the Board of Directors of Borrower may elect at any time to make an adjustment otherwise required under this Section 3(f) of less than one cent ($.01).

(iii)              Timing of Issuance of Additional Conversion Shares Upon Certain Adjustments .  In any case in which the provisions of this Section 3(f) require that an adjustment shall become effective immediately after a record date for an event, the Borrower may defer until the occurrence of such event (A) issuing on account of the conversion of this Note after such record date and before the occurrence of such event the additional Conversion Shares issuable upon such conversion by reason of the adjustment required by such event over and above the Conversion Shares issuable upon such conversion before giving effect to such adjustment, and (B) paying to such holder any amount of cash in lieu of a fractional Conversion Share pursuant to Section 3(e); provided that the Borrower upon request shall deliver to the holder of this Note a due bill or other appropriate instrument evidencing the holder's right to receive such additional shares, and such cash, upon the occurrence of the event requiring such adjustment.

(g)                 Current Market Price .  The “ Current Market Price ” per Conversion Share for any date shall be determined by the Board of Directors as follows:

(i)                 If the Conversion Shares are listed on a national securities exchange or if prices of Conversion Shares are quoted on the OTC Bulletin Board, the Current Market Price shall be the average of the last reported sale price of the Conversion Shares on such exchange or the OTC Bulletin Board for the last twenty (20) consecutive trading days prior to such date; or

(ii)               If the Conversion Shares are not so listed or quoted, the Current Market Price shall be an amount determined in such reasonable manner as may be prescribed by the Board of Directors of Borrower, irrespective of any accounting treatment.

(h)                 Statement Regarding Adjustments .  Whenever the Conversion Price shall be adjusted as provided in Section 3(f), the Borrower shall forthwith file, at the principal office of the Borrower, a statement showing in detail the facts requiring such adjustment and the Conversion Price that shall be in effect after such adjustment, and the Borrower shall also cause a copy of such statement to be sent to the holder of this Note at the address of the holder reflected in the records of Borrower.  Where appropriate, such copy may be given in advance and may be included as part of a notice required to be mailed under the provisions of Section 3(i).
 
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(i)                   Notice to Holders .  In the event the Borrower shall propose to take any action of the type described in Section 3(f) that would result in an adjustment in the Conversion Price or a Sale Event described in Section 3(m), the Borrower shall give notice to the holder of this Note, in the manner set forth in Section 3(h), which notice shall specify the record date, if any, with respect to any such action and the approximate date on which such action is to take place.  Such notice shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action (to the extent such effect may be known at the date of such notice) on the Conversion Price and the number, kind or class of shares or other securities or property which shall be deliverable upon conversion of this Note.  In the case of any action which would require the fixing of a record date, such notice shall be given at least ten (10) days prior to the date so fixed, and in case of all other action, such notice shall be given at least fifteen (15) days prior to the taking of such proposed action.  Failure to give such notice, or any defect therein, shall not affect the legality or validity of any such action.

(j)                   Costs .  The Borrower shall pay all documentary, stamp, transfer or other transaction taxes, if any, attributable to the issuance or delivery of Conversion Shares upon conversion of this Note; provided that the Borrower shall not be required to pay any taxes which may be payable in respect of any transfer involved in the issuance or delivery of any certificate for such shares in a name other than that of the holder of this Note.

(k)                 Reservation of Shares .  So long as any amount of principal or accrued interest on this Note remains unpaid, the Borrower shall reserve at all times free from preemptive rights, out of its authorized but unissued Conversion Shares, solely for the purpose of effecting the conversion of this Note, sufficient Conversion Shares to provide for the conversion of the outstanding principal balance of this Note plus accrued interest; and if at any time the number of authorized but unissued Conversion Shares shall not be sufficient to effect the conversion of this Note, in addition to such other remedies as shall be available to the holder of this Note, the Borrower will take such corporate action as may, in the opinion of counsel, be necessary to increase its authorized but unissued Conversion Shares to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain the requisite shareholder approval of any necessary amendment to, as applicable, the Certificate of Incorporation of Borrower.

(l)                   Valid Issuance .  All Conversion Shares which may be issued upon conversion of this Note will upon issuance by the Borrower be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof, and the Borrower shall take no action which will cause a contrary result.
 
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(m)                Preservation of Conversion Rights Upon Merger, Consolidation, etc .  In case of any consolidation of Borrower with or merger of Borrower into another corporation or in case of any sale, transfer, license, or lease of all or substantially all the assets of Borrower to another corporation or other business entity (each such event a “Sale Event”), Borrower or such successor, purchaser or acquirer, as the case may be, shall execute an agreement that each holder of this Note shall have the right thereafter upon tender of this Note (or such portion thereof as the holder may designate) for conversion at the Conversion Price in effect immediately prior to such Sale Event, to receive the kind and amount of shares and other securities and property (including cash) which the holder would have owned or have been entitled to upon the happening of such Sale Event had this Note (or such portion thereof as the holder has designate for conversion) been converted immediately prior to such Sale Event (such shares and other securities and property (including cash) being referred to as the “Sale Consideration”); provided, however, that the Sale Consideration shall not include any dividends, interest or other income on or from such shares or other securities and property paid, payable, or accruing from the date of such Sale Event to the Conversion Date.  Each agreement pertaining to a Sale Event shall provide for adjustments, which shall be as nearly equivalent as may be practicable to the adjustments provided for in this paragraph.  The provisions of this paragraph shall similarly apply to each successive Sale Event.

(n)                  If Borrower shall issue rights, options or warrants to all holders of its outstanding common stock, without any charge to such holders, entitling them to subscribe for or purchase shares of common stock or other securities of Borrower (a “Rights Distribution”), or shall otherwise offer the holders of its common stock the opportunity to purchase additional shares of common stock or other securities of Borrower on a pro rata basis (a “Pro Rata Offer”), Borrower shall concurrently issue to the holder of this Note the number of rights, options or warrants that the holder would have received had this Note been converted into Conversion Shares immediately prior to the record date for the Rights Distribution, or in the case of a Pro Rata Offer, Borrower shall offer to sell to the holder of this Note, at the Pro Rata Offer subscription price, the number of shares of common stock or other securities that the holder would have been entitled to purchase had this Note been converted into Conversion Shares immediately prior to the Pro Rata Offer or the record date therefor.
 
4.                     Transfer of Note

(a)                   Borrower shall keep and maintain a register or registers in which Borrower shall register this Note and the transfer of this Note.  Any Person in whose name this Note is registered, or who has the right to have this Note so registered, shall have all of the rights of Lender.  All payments of principal, interest, and any other amount due or that becomes due under this Note, shall be paid to Lender by check mailed to Lender at Lender’s address of record or shall be paid by wire transfer of funds to such account as Lender may designate.  Lender may change the address or account for payment or Lender’s address for notice by delivery of written notice to Borrower at its principal executive office. Borrower may deem and treat the person or persons in whose name this Note shall be registered upon the books and records of Borrower as the absolute owner of this Note (regardless of whether this Note shall be past due, and notwithstanding any notation of ownership, endorsement, or other writing on this Note), for the purpose of receiving payment of or on account of principal, interest, and any other amount due or payable under this Note, and for all other purposes; and Borrower shall not be affected by any notice to the contrary unless such notice of transfer is given pursuant to this Note.  All such payments shall be valid and effectual to satisfy and discharge the liability on this Note to the extent of all sums so paid.
 
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(b)                  This Note may not be sold, pledged, hypothecated, negotiated, assigned, or otherwise transferred except pursuant to an effective registration statement under the Securities Act of 1933, as amended, and pursuant to effective registration or qualification under applicable state securities or “blue sky” laws, unless an exemption from such registration and qualification is available.  Borrower will make a stop transfer notation in the register maintained pursuant this Section with respect to such restrictions on transfer.  In connection with the issuance of any new Note or Notes that are presented for registration of transfer, Borrower will take the steps described in this paragraph.  Borrower may require, as a condition to registration of transfer, that the transferor or transferee deliver to Borrower an opinion of counsel, in form and substance acceptable to Borrower, to the effect that such transfer is exempt from the registration and qualification provisions of the Securities Act of 1933, as amended, and applicable state securities or “blue sky” laws.

(c)                  The transfer of this Note shall be registered by Borrower on the books and records of the Borrower subject to the terms, conditions, and restrictions of transfer set forth in this Note, but without payment of any charge other than a sum sufficient to reimburse Borrower for any tax or other governmental charge incident thereto.  Such registration of transfer shall be effected only upon compliance with all of the provisions of this Section 4, and upon surrender of this Note for transfer.  Upon any such registration of transfer, a new Note or Notes of the same aggregate principal amount will be issued to the transferee in exchange for this Note.  All Notes presented for registration of transfer, if so required by Borrower, shall be accompanied by a written instrument or instruments of transfer, in form satisfactory to Borrower, duly executed by the registered holder or by his duly authorized attorney or agent.
 
5.                    Default

(a)                   Upon the occurrence of an Event of Default, at Lender’s option, all unpaid principal and accrued interest, and all other amounts payable to Lender under this Note shall become immediately due and payable without presentment, demand, notice of non-payment, protest, or notice of non-payment, provided that no notice or demand shall be required if the Event of Default is a proceeding under any Debtor Relief Law. “Debtor Relief Law ” means the Bankruptcy Code of the United States of America, as amended, or any other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law affecting the rights of creditors generally.
 
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(b)                   For purposes of this Note, the following are Events of Default :  (a) the failure of Borrower to pay when due any interest, principal, or other amount payable under this Note, if such failure to pay continues for a period of fifteen (15) days; (b) Borrower becoming the subject of any order for relief in a proceeding under any Debtor Relief Law; (c) Borrower making an assignment for the benefit of creditors other than Lender; (d) Borrower applying for or consenting to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, or similar officer for it or for all or any part of its property or assets; (e) the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, or similar officer for Borrower, or for all or any part of the property or assets of Borrower, without the application or consent of Borrower if such appointment continues undischarged or unstayed for sixty (60) calendar days; (f) Borrower  instituting or consenting to any proceeding under any Debtor Relief Law with respect to Borrower, or all or any part of its property or assets, or the institution of any similar case or proceeding without the consent of Borrower, if such case or proceeding continues undismissed or unstayed for sixty (60) calendar days; (g) the dissolution or liquidation of Borrower, or the winding-up of the business or affairs of Borrower; (h) the taking of any action by Borrower to initiate any of the actions described in clauses (b) through (g) of this paragraph; (i) the issuance or levy of any judgment, writ, warrant of attachment or execution or similar process against all or any material part of the property or assets of Borrower if such process is not released, vacated or fully bonded within sixty (60) calendar days after its issue or levy; or (j) any material breach or default by Borrower under any loan agreement, promissory note, or other instrument evidencing indebtedness payable to a third party.
 
6.                    Miscellaneous

(a)                   Borrower and all guarantors and endorsers of this Note severally waive  (1) presentment, demand, protest, notice of dishonor, and all other notices, except as expressly provided in this Note; (2) any release or discharge arising from any extension of time, discharge of a prior party, and (3) any other cause of release or discharge other than actual payment in full of all indebtedness evidenced by or arising under this Note.

(b)                   The Lender shall not be deemed, by any act or omission, to have waived any of its rights or remedies under this Note unless such waiver is in writing and signed by Lender and then only to the extent specifically set forth in such writing.  A waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.  No delay or omission of Lender to exercise any right, whether before or after an Event of Default, shall impair any such right or shall be construed to be a waiver of any right or default, and the acceptance of any past-due amount at any time by the Lender shall not be deemed to be a waiver of the right to require prompt payment when due of any other amounts then or thereafter due and payable.

(c)                   Lender may accept, indorse, present for payment, and negotiate checks marked “payment in full” or with words of similar effect without waiving Lender’s right to collect from Borrower the full amount owed by Borrower.
 
(d)                   Upon any Event of Default, the Lender may exercise all rights and remedies provided for in this Note and by law, including, but not limited to, the right to immediate payment in full of this Note.
 
8

(e)                   The rights and remedies of the Lender as provided in this Note and in law or equity shall be cumulative and concurrent, and may be pursued singularly, successively, or together at the sole discretion of the Lender, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or a release of any such right or remedy.

(f)                     The terms, covenants, and conditions contained in this Note shall be binding upon the heirs, executors, administrators, successors, and assigns of Borrower and shall inure to the benefit of the heirs, executors, administrators, successors and assigns of Lender.

(g)                   If any provisions of this Note would require Borrower to pay interest on the indebtedness evidenced by or arising under this Note at a rate exceeding the highest rate allowable by applicable law, Borrower shall instead pay interest under this Note at the highest rate permitted by applicable law.

(h)                   This Note shall be construed under and governed by the laws of the State of California without regard to conflicts of law.

(i)                    Borrower agrees to pay all reasonable attorneys' fees incurred by Lenders in connection with enforcement of any of Lenders’ rights and remedies under this Note, whether or not any proceeding is commenced to enforce or protect such rights and remedies.  In the event of any lawsuit or other action to enforce any right or remedy of Lenders under this Note, or to resolve any dispute arising from or in connection with this Note, the prevailing party shall be entitled to recover its costs and expenses of such lawsuit or proceeding, including without limitation, reasonable attorneys' fees.

BORROWER :

OncoCyte Corporation
 
     
By:
/s/ Joseph Wagner
 
 
Joseph Wagner
 
     
Title:  President
 
 
 
9


Exhibit 10.14
 
AGREEMENT

This AGREEMENT (this “Agreement”) is made as of June 26, 2015 (the “Effective Date”) by and among George Karfunkel, Bernard Karfunkel (together with George Karfunkel, the “Investors”) and OncoCyte Corporation, a California corporation (“OncoCyte” and together with the Investors, individually each a “Party” and collectively, the “Parties”).

RECITALS

A.           The Investors purchased shares of common stock, no par value (“Shares”), of OncoCyte (the “Investment”) pursuant to a subscription agreement dated as of May 8, 2015 (the “Subscription Agreement”) as part of a rights offering.

B.           OncoCyte may wish to conduct another rights offering on or before June 30, 2016 and the Investors are willing to commit to participate in such potential rights offering on the terms set forth herein.

C.           In connection with the Investors' commitment to participate in the potential rights offering, the parties have agreed to certain other terms and conditions, as set forth herein.

NOW, THEREFORE, for the consideration set forth herein and other good and valuable consideration, the Parties herein agree as follows:

1.            Commitment to Participate in Potential Rights Offering. In the event OncoCyte conducts a rights offering on or before June 30, 2016 at a pre-money valuation of OncoCyte of at least $40,000,000.00, if so requested by OncoCyte, the Investors shall enter into a Purchase Agreement with OncoCyte pursuant to which the Investors shall purchase from OncoCyte newly issued Shares on the terms and conditions offered to shareholders in the rights offering with an aggregate purchase price equal to the lesser of (a) the percentage of the total amount of capital which the Company seeks to raise in such rights offering (including the amount of capital which the Company seeks to raise from third party investors in any concurrent offering) equal to the Investors' aggregate pro rata share of the Shares on the record date for such rights offering, determined on a fully diluted basis, and (b) $3,000,000.00, or such lesser amount requested by OncoCyte.

2.            Contingent Issuance of Additional Shares. In the event that shares of common stock of OncoCyte are not publicly traded on any stock exchange or over-the-counter market by January 15, 2016, then promptly following such date, OncoCyte will issue warrants to purchase 1,750,000 Shares to George Karfunkel and wan-ants to purchase 1,250,000 Shares to Bernard Karfunkel, at an exercise price of $.01 per Share (collectively, the “Warrants”). If issued, the Warrants will expire on December 31, 2016.

3.            Non-Compete.

(a)           The Investors agree that, for a period of one year beginning on the date hereof, neither of them shall invest or engage, directly or indirectly, whether as a partner, equity holder, lender, principal, agent, affiliate, consultant or otherwise, in any business anywhere in the world that develops products for the diagnosis and treatment of cancer or otherwise competes with OncoCyte in any way; provided , however , that the passive ownership of less than 5% of the outstanding stock of any publicly-traded corporation will not be deemed, solely by reason thereof, to be in violation of this Section 3.

(b)           If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 3 is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability will have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement will be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
 


(c)           The Investors expressly acknowledge that a breach of any of the terms and conditions contained in this Section 3 will cause OncoCyte irreparable and continuing harm for which there is no adequate remedy at law, and OncoCyte is therefore entitled to seek injunctive relief and specific performance without the requirement of posting bond or other undertaking. OncoCyte's right to seek injunctive relief and specific performance shall in no way limit its right to seek any other legal remedies or other relief available to it. The Investors hereby acknowledge and agree that the covenants and agreements set forth in this Section 3 are a material inducement to OncoCyte to enter into this Agreement and to perform its obligations hereunder, and that OncoCyte would not have entered into this Agreement without such covenants and agreements being made a part of this Agreement.

4.            Full and Complete Release of Claims.

(a)           Each Investor, for himself and on behalf of his past, present and future affiliates, heirs, executors, representatives, attorneys, insurers, administrators, agents, successors and assigns and each of their respective past, present and future shareholders, members, managers, officers, directors, employees, heirs, executors, representatives, attorneys, insurers, administrators, agents, predecessors, successors and assigns (collectively, the “Releasors”), hereby irrevocably, fully and forever releases and discharges OncoCyte and its past, present and future parents, subsidiaries, affiliates, predecessors, representatives, attorneys, insurers, administrators, agents, successors and assigns and each of their respective past, present and future shareholders, members, managers, officers, directors, employees, representatives, attorneys, insurers, administrators, agents, predecessors, successors, and assigns (collectively, the “Releasees”), from any and all rights, charges, claims, complaints, demands, damages, debts, losses, obligations, liabilities, costs, expenses, damages, suits, actions, rights of action and causes of action, of any kind or character whatsoever, based on any legal theory whatsoever, including any arising under tort, contract, successor liability, federal, state, local, statutory or common law, whether known or unknown, concealed or hidden, suspected or unsuspected, developed or undeveloped, existing or contingent (collectively, “Claims”) that any one or more of the Releasors has or may have against any of the Releasees as of the date hereof arising under or related to the Subscription Agreement or the Investment (the “Released Claims”); provided, however, that nothing in this Section 4 shall release, waive or in any way limit any of the Releasors' Claims against the Releasees arising under this Agreement. The Investors represent and warrant to OncoCyte they are the sole owners of the Released Claims and they have not assigned, pledged, encumbered or in any manner transferred or conveyed all or any portion of the Released Claims, (ii) they have been given an opportunity to consult with, and have been represented by and have consulted with, legal counsel of their own choice in connection with the negotiating, drafting, and execution of this release, and have relied upon the advice of such legal counsel in negotiating, drafting, and executing the same and (iii) they have the capacity to enter into this Agreement. The Investors hereby acknowledge and agree that the release set forth in this Section 4 is a material inducement to OncoCyte to enter into this Agreement and to perform its obligations hereunder, and that OncoCyte would not have entered into this Agreement without such release being made a part of this Agreement.
 


(b)           Each Investor acknowledges that it is aware that it or one of the Releasors may hereafter discover facts different from, or in addition to, those which it now knows or believes to be true concerning the Released Claims. Notwithstanding any such different or additional facts, this release shall fully discharge each of the Releasees from any and all Released Claims. The Investors, for themselves and on behalf of the Releasors stipulate and agree that they will have expressly waived the provisions, rights and benefits of California Civil Code §1542, which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

All Releasors providing releases of unknown Claims expressly waive any and all provisions, rights and benefits conferred by any law of any state or territory of the United States, or principle of common law, which is similar, comparable, or equivalent to California Civil Code §1542.

5.            Confidentiality. From and after the Effective Date, the terms of this Agreement, together with the information exchanged by the Parties during negotiation hereof, shall be confidential, and shall not be disclosed by either Party to any other persons, entities or organizations, except (a) to the extent such terms were known by or have been available to the public as of the Effective Date; (b) to the extent such terms become available to the public other than by breach of this Agreement; (c) to the extent required by an order of a court having jurisdiction or under subpoena from a court of law or an appropriate government agency (in which event, the Party receiving any such order or subpoena shall give written notice to the other Party no less than five days prior to responding); (d) in order for such Party to obtain legal, accounting or tax services; (e) in order to enforce this Agreement; or (f) as may be required by such Party to comply with applicable law, rule or regulation of any governmental authority or self-regulatory organization, including, without limitation, the disclosure rules of the Securities and Exchange Commission or the New York Stock Exchange.

6.            Governing Law. This Agreement shall be governed by the laws of the State of New York, without giving effect to the conflicts of law principles thereof.

7.            Entire Agreement. This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements, negotiations and discussions with respect to the subject matter hereof. This Agreement may not be altered, modified or amended, unless by agreement in writing executed by the Patties, nor any of its provisions waived, unless in writing by the Party granting such waiver. No failure, delay or forbearance of any Party in insisting upon or enforcing any provisions of this Agreement, or in exercising any rights or remedies under this Agreement, shall be construed as a waiver or relinquishment of any such provisions, rights or remedies, all of which shall remain in full force and effect.

8.            Representation by Counsel. Each Party represents and warrants that it has been represented by legal counsel with respect to the negotiation of the terms of this Agreement, that it has been advised by legal counsel as to its rights and obligations under this Agreement and that it and its legal counsel have participated in the review and drafting of this Agreement. Each Party has had the opportunity to draft, review and edit this Agreement. Accordingly, no presumption for or against any Party arising out of drafting all or any part of this Agreement will be applied in any action relating to or arising from this Agreement.
 


9.            Miscellaneous. The section headings used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall constitute an original document and all of which together constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.

IN WITNESS WHEREOF , the Parties do hereby execute this Agreement as of the Effective Date.

 
/s/ George Karfunkel
 
 
GEORGE KARFUNKE
 
       
 
/s/ Bernard Karfunkel
 
 
BERNARD KARFUNKEL
 
       
 
ONCOCYTE
 
       
 
By:
/s/ William Annett
 
 
Name: William Annett
 
 
Title: Chief Executive Officer
 

 


Exhibit 10.15
 
Certain information has been omitted under a request for confidential treatment, and the omitted information has been filed with the Commission. Confidential portions are marked [**].

SPONSORED RESEARCH AGREEMENT

This SPONSORED RESEARCH AGREEMENT (the "Agreement") is made as of the 13th day of September , 2013 (the "Effective Date " ) by and between THE WISTAR INSTITUTE OF ANATOMY AND BIOLOGY, a Pennsylvania nonprofit corporation located at 3601 Spruce Street, Philadelphia, PA 19104 ("Wistar"), and ONCOCYTE CORPORATION, a corporation organized under the laws of California , with a principal place of business located at 1301 Harbor Bay Parkway , Alameda, CA 94502 ("Sponsor") .

RECITALS

A.             Dr. Louise C. Showe, a member of the scientific staff of Wistar, has perfo1med research in the field of molecular diagnostics for lung cancer.

B.              Sponsor is interested in such research and desires to support such research in accordance with the terms and conditions of this Agreement.

C.            The research and development program contemplated by this Agreement is of mutual interest to the patties and furthers the educational, scholarship and research objectives of Wistar as a nonprofit, tax-exempt research institution.

NOW, THEREFORE , in consideration of the premises and mutual covenants contained herein , and intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE 1 - DEFINITIONS

The following terms , as used herein , shall have the following meanings:

1.1          " Confidential Information " means: (i) the Inventions , (ii) any information or material in tangible form that is marked as confidential or proprietary by the furnishing patty at the time it is delivered to the receiving patty , and (iii) information that is furnished orally if the furnishing patty identifies such info1mation as confidential or proprietary when it is disclosed and conforms such designation in writing within thi1ty (30) days after such disclosure.

1.2          " Invention(s) " means and includes all technical information, trade secrets , developments , discoveries , software , know-how, methods, techniques, formulae, data, processes and other proprietary ideas, whether or not patentable or copyrightable, that are related to the Sponsored Research and are first conceived, discovered , developed or reduced to practice in the perfo1mance of the Sponsored Research by the Principal Investigator or anyone working under her / his direction.

Wistar / OncoCyte Sponsored Research Agreement
Page 1 of 16
 


1.3          " Option to License " means the right granted to Sponsor to negotiate and secure a license to one or more Inventions developed under this Agreement along with any Wistar Background Technology, as provided under Section 5.2.

1.4          " Principal Investigator " means the individual designated in accordance with Section 2.2 hereof.

1.5           " Sponsored Research " means the research relating to the development of new molecular diagnostics for lung cancer performed in the laboratory of the Principal Investigator as more fully described on Schedule I attached he r eto and made a part of this Agreement. The Sponsored Research may be modified from time to time by the parties as mutually agreed to in writing.

1.6          " Wistar Background Technology " means any technical information , trade secrets, developments, discoveries, software , know-how, methods, techniques , formulae, data, processes and other proprietary ideas related to molecular diagnostics for lung cancer, whether or not patentable or copyrightable , owned by Wistar, necessary to practice any Invention and made, identified, compiled and / or discovered by Dr . Louise C. Showe or laboratory personnel working directly under her supervision.

ARTICLE 2 - SPONSORED RESEARCH

2.1           Statement of Work. Wistar undertakes to conduct the Sponsored Research with funds made available by Sponsor. Wistar shall furnish the appropriate personnel, materials , services , facilities and equipment for the performance of the Sponsored Research . Wistar is under no obligation to fund any of the Sponsored Research.

2.2         Participation of Principal Investigator .

(i)            Dr . Louise C . Showe shall serve as Principal Investigator for the Sponsored Research and shall be responsible for the administration and supervision of the Sponsored Research.

(ii)           If the services of the Principal Investigator become unavailable to Wistar for any reason , Wistar shall be entitled to designate another member of its scientific staff who is agreeable to both parties to serve as the Principal Investigator of the Sponsored Research. If a substitute Principal Investigator has not been designated within sixty (60) days after the original Principal Investigator ceases her/his services under this Agreement, either party may terminate this Agreement upon written notice thereof to the other party.

2.3            Reporting. Wistar agrees to keep Sponsor fully informed of the performance of the Sponsored Research. Wistar shall also deliver to Sponsor, monthly progress reports summarizing, in reasonable detail , the research performed during the preceding calendar month, and all significant findings and developments. Such reports shall be delivered no later than fifteen (15) days after each calendar month .

Wistar / OncoCyte Sponsored Research Agreement
Page 2 of 16
 


Certain information has been omitted under a request for confidential treatment, and the omitted information has been filed with the Commission. Confidential portions are marked [**].

2.4            Equipment . Title to any equipment, instruments, laboratory animals or any other materials purchased, built or manufactured by Wistar or the Principal Investigator prior to or in the performance of the Sponsored Research shall vest in Wistar and any such equipment, instruments, laboratory animals or materials shall be and remain the property of Wistar following expiration or termination of the Sponsored Research.

ARTICLE 3 - PERIOD OF PERFORMANCE

3 . 1            Term . The initial term of this Agreement shall begin as of the Effective Date and shall end upon completion of the Sponsored Research or on the second anniversary hereof, whichever is soone r , subject to early termination pursuant to Sections 2.2(ii) or 8.1 hereof. This Agreement may be extended or renewed only by written agreement of both parties .

ARTICLE 4 - FUNDING

4.1            Funding . Sponsor shall pay Wistar the amount of [**] dollars ($[**]) for the initial term of the Sponsored Research as follows:

(i)            [**] dollars ($[**]) shall be paid upon execution of this Agreement; and

(ii)           [**] dollars ($[**]) shall be paid upon the first anniversary of this Agreement.

4.2            Payments . Payments shall be made by check made payable to "The Wistar Institute of Anatomy and Biology," and mailed to The Wistar Institute, 3601 Spruce Street , Philadelphia, PA 19104, Attn: Director, Grants & Contracts Administration.

4.3            Record Keeping . Wistar shall keep accurate records and books of account relating to the Sponsored Research, which are to be available during Wistar's regular business hours to authorized representatives of Sponsor upon reasonable prior written notice to Wistar.

ARTICLE 5 - INVENTIONS, LICENSES

5.1            Inventions . Wistar shall promptly provide to Sponsor a complete written disclosure of each and every Invention reasonably considered patentable including any Wistar Background Technology necessary to practice the Invention.

5.2            Option to License .

(i)            Within [**] days of receipt of the disclosure of an Invention, Sponsor will notify Wistar in writing   whether Sponsor desires to obtain an Option to License the Invention and any Wistar Background Technology. If Sponsor does not notify Wistar of its desire to obtain an Option to License such Invention within such time frame , Sponsor will have no further rights in such disclosed Invention.

Wistar / OncoCyte Sponsored Research Agreement
Page 3 of 16
 


Certain information has been omitted under a request for confidential treatment, and the omitted information has been filed with the Commission. Confidential portions are marked [**].

(ii)           Sponsor shall pay Wistar an option fee of [**] dollars ($[**]) upon notification to Wistar that it desires to obtain an Option to License an Invention (the "Option Fee"). Such Option Fee shall be due and payable on the date of Sponsor's written election to obtain an Option to License and shall be made by check made payable to "The Wistar Institute of Anatomy and Biology," and mailed to The Wistar Institute, 3601 Spruce Street, Philadelphia, PA 19104, Attn: Director, Finance. Such Option Fee shall be creditable against any future license consideration for such Invention.

(iii)          The Option to License shall commence upon the date of Wistar's receipt of the Option Fee and shall expire [**] days after the end of the initial term of the Sponsored Research (the "Option Period").

5.3            Negotiation of License Agreement .

(i)            Until the expiration of the Option Period, Sponsor shall have the exclusive right to negotiate with Wistar to obtain a worldwide , exclusive, royalty bearing license, with right to sublicense, to the Inventions for which Sponsor has obtained an Option to License. Prior to the expiration of the Option Period, Sponsor shall identify in writing to Wistar each of the Inventions included in the Option to License for which Sponsor intends to secure a license (the "Selected Inventions"). Promptly after Sponsor provides such notice, the patties shall meet and commence good faith negotiations regarding the draft license terms listed on Schedule II attached hereto for Selected Inventions and any related Patents (as defined below), which terms are for discussion purposes only and not intended to bind or obligate either party. Such negotiations shall proceed during a negotiation period of up to [**] days after the date the parties commence negotiations (the "Negotiation Period"). Sponsor will have no further rights to any Invention it has not so identified prior to expiration of the Option Period .

(ii)           If Sponsor declines to secure an Option to License with respect to a particular Invention, or if Sponsor has secured an Option to License but, following good faith negotiations, Sponsor and Wistar are unable to execute a license within the Negotiation Period for a particular Invention, Wistar shall be free to license such Invention to any party upon such terms as Wistar deems appropriate, without any further obligation to Sponsor .

5.4           No Transfer of Rights. No other rights or licenses are granted under this Agreement by either party to the other either expressly or by implication, except those specifically set forth herein.

5.5            Retained Rights of U.S . Government . Any option or license granted to Sponsor herein shall be subject to the rights of the United States government reserved under Public Laws 96-517, 97-256 and 98-620 , codified at 35 U.S.C. § 200-212, and any regulations issued thereunder.

Wistar / OncoCyte Sponsored Research Agreement
Page 4 of 16
 


ARTICLE 6 -PATENTS

6.1             Prosecution of Patents.

(i)            Wistar shall be responsible for and shall control the preparation, prosecution and maintenance of all patents and patent applications related to an Invention (the "Patent(s)"), except for any patent or patent application that Sponsor has elected to file, prosecute or maintain under the te1ms specified in Section 6.1 (v) hereof.

(ii)           If Sponsor has elected to obtain an Option to License an Invention by notice to Wistar as provided in Section 5.2(i) hereof, the parties agree to mutually determine whether to file a patent application(s) on the Invention and the countries in which such applications will be prosecuted and maintained . Sponsor shall reimburse Wistar for all documented expenses (including legal fees, filing and maintenance fees or other governmental charges) incurred in connection with the filing, prosecution and maintenance of the Patents claiming such Invention (the " Patent Expenses"). Sponsor ' s obligation to pay the Patent Expenses will terminate at the expiration of the Option to License with respect to all Inventions included within the Option to License that Sponsor declines to negotiate a license for , as provided in Section 5.3(ii) . With respect to the Inventions for which Sponsor elects to negotiate a license under the terms of Section 5 . 3, such obligations shall continue unless the negotiation period provided in Section 5 . 3(i) expires without Wistar and Sponsor entering into the desired license agreement, in which case Sponsor's obligation to pay for any Patent Expenses incurred after such date shall immediately terminate.

(iii)          Wistar shall retain all right, title and interest in and to the Inventions and any Patents , copyrights and other protections related thereto, regardless of which party prepares, prosecutes or maintains the Patents, copyrights or other protections related to the Inventions, subject to any express license granted to Sponsor under Section 5.3 hereof.

(iv)         If Sponsor declines to pay for the Patent Expenses in any jurisdiction for any Patents subject to an Option to License , Wistar may do so at its costs and expense but such Patents shall then be excluded from Sponsor's Option to License.

(v)           If Wistar elects not to file, prosecute or maintain any Patent included in the Option to License and as to which Sponsor has requested Wistar to file one or more patent applications, Wistar shall notify Sponsor at least sixty (60) days prior to taking, or not taking, any action which would result in the abandonment, withdrawal, or lapse of such patent or patent application or patent rights associated with an Invention. Sponsor shall then have the right to file, prosecute or maintain the Patent at its own expense.

(vi)         The filing and prosecution of copyright, trademark and other intellectual property protections related to the Inventions shall be subject to the provisions of this Section.

Wistar / OncoCyte Sponsored Research Agreement
Page 5 of 16
 


(vii)         Each party shall cooperate with the other party to execute all lawful papers and instruments and to make all rightful oaths and declarations as may be necessary in the preparation and prosecution of all Patents and other filings.

ARTICLE 7 - CONFIDENTIALITY AND PUBLICATION

7.1            Confidentiality .

(i)           The parties shall maintain in confidence and shall not disclose to any third party any Confidential Intonation of the other party received pursuant to this Agreement , without the prior written consent of the furnishing party. The foregoing obligation shall not apply to:

(a)           information that is known to the receiving pa1ty or independently developed by the receiving party prior to the time of disclosure, in each case, to the extent evidenced by the written records of the receiving party;

(b)           information disclosed to the receiving party by a third party that has a right to make such disclosure;

(c)           information that becomes patented, published or otherwise part of the public domain as a result of acts by the furnishing party or a third party obtaining such information as a matter of right; or

(d)           information that is required to be disclosed by order of the U . S . Food and Drug Administration , Securities and Exchange Commission , or similar authority or a court of competent jurisdiction.

(ii)           Sponsor will take all reasonable steps to protect the Confidential Information of Wistar with the same degree of care Sponsor uses to protect its own confidential or proprietary information. Without limiting the foregoing, Sponsor shall ensure that all of its employees having access to the Confidential Information of Wistar are obligated in w1iting to abide by Sponsor ' s obligations her e under.

(iii)          Wistar shall not be obligated to accept any Confidential Information of Sponsor. Notwithstanding any of the foregoing, Wistar assumes no institutional liability or responsibility for maintaining the confidentiality of any Confidential Information of Sponsor that Sponsor furnishes to any employee of Wistar other than (a) the Principal Investigator or those under her/his direct supervision or (b) members of its Business Development, Legal & External Affairs and Grants and Contracts departments . If Sponsor desires to furnish any such Confidential Information of Sponsor to any other Wistar employee, Sponsor may request such individual sign a confidentiality agreement.

Wistar / OncoCyte Sponsored Research Agreement
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7.2           Publication .

(i)            Sponsor acknowledges that the basic objective of research and development activities at Wistar is the generation of new knowledge and its expeditious dissemination. To further that objective, Wistar retains the right, at its discretion, to demonstrate, publish or publicize a description of the results of the Sponsored Research or any Inventions, subject to the provisions of this Section 7.2 .

(ii)           Shou l d Wistar desire to disclose publicly, in writing or by oral presentation, the results of the Sponsored Research or any Invention for which a patent application has not been filed , Wistar shall notify Sponsor in writing of its intention at least sixty ( 60) days before such d i sclosure . Sponsor may request Wistar, no later than sixty (60) days following the receipt of Wistar's notice, to file a patent application, copyright or other filing related to such Invention. All such filings shall be subject to the provisions of Section 6.1 of this Agreement. Upon receipt of such request, Wistar shall arrange for a short delay in publication, not to exceed thirty (30) days, to permit filing of a patent or other application by Wistar, or if Wistar declines to file such application, to permit Sponsor to make such a filing.

(iii)          Wistar reserves the right to demonstrate, publish or publicize the results of the Sponsored Research or any Invention that is not patentable (as determined by the parties) so long as such disclosure does not contain any Confidential Info1mation of Sponsor. If such disclosure contains any Confidential Information of Sponsor, the parties agree to negotiate in good faith to determine whether the proposed disclosure can be modified or withheld, consistent with the objectives of each party .

7.3            Use of Wistar's Name . Sponsor shall not directly or indirectly use Wistar's name, or the name of any trustee, manager, officer or employee thereof, without Wistar's prior written consent, except that Sponsor may include an accurate description of the terms of this Agreement to the extent required under federal or state securities or other disclosure laws, including the rules of any national securities exchange.

7.4            Injunctive Relief . Because damages at law may be an inadequate remedy for breach of any of the covenants, promises and agreements contained in this Article 7 hereof, either party may be entitled to injunctive relief in any state or federal court located within the Eastern District of Pennsylvania, including specific perfo1mance or an order enjoining the breaching party from any threatened or actual breach of such covenants, promises or agreements. Sponsor hereby waives any objection it may have to the personal jurisdiction or venue of any such court with respect to any such action. The rights set forth in this Section 7.4 shall be in addition to any other rights which Wistar may have at law or in equity.

Wistar / OncoCyte Sponsored Research Agreement
Page 7 of 16
 


ARTICLE 8 - TERMINATION

8.1            Termination .

(i)            In addition to the termination right set forth in Section 2.2(ii) hereof , either party may terminate this Agreement effecti v e upon w1itten notice to the other party, if the other party breaches the te1ms of this Agreement, including the payment schedule in Section 4.1, and fails to cure such breach within thirty (30) days after receiving notice thereof.

(ii)           Wistar may terminate this Agreement if Sponsor becomes insolvent or voluntary or involuntary proceedings by or against Sponsor are instituted in bankruptcy or under any insolvency law , or a receiver or custodian is appointed for Sponsor, or proceedings are instituted by or against Sponsor for corporate reorganization or the dissolution of Sponsor , which proceedings, if involuntary, shall not have been dismissed within sixty (60) days after the date of filing, or Sponsor makes an assignment for the benefit of creditors , or substantially all of the assets of the Sponsor are seized or attached and not released within sixty (60) days thereafter.

(iii)          In addition, either party may terminate this Agreement for any reason upon thirty (30) days prior written notice to the other party .

8.2            Effect of Termination. In the event of termination of this Agreement prior to its stated term whether for breach or for any other reason whatsoever , Wistar shall be entitled to retain from the payments made by Sponsor prior to te1mination , an amount of such payment equal to Wistar's reasonable costs of the work completed prior to such termination, plus all costs of noncancellable commitments incurred prior to the receipt of or issuance by Wistar of the notice of termination. In the event of termination, Wistar shall submit a final report of all costs incurred and all funds received under this Agreement within sixty (60) days after the effective termination date.

8.3            Survival . Termination of this Agreement shall not affect the rights and obligations of the parties accrued p1ior to termination hereof. The provisions of Sections 2.4 , 8 . 2, 8 . 3 , 10.1, 10.4, 10.5, 10. 7 , 10.10 and 10 . 11 and Articles 5 , 6 , 7 and 9 shall survive termination or expiration of this Agreement.

ARTICLE 9 - LIMITATION ON LIABILITY, NO WARRANTIES, INDEMNIFICATION

9.1            Limitation on Liability. WISTAR SHALL NOT BE LIABLE TO SPONSOR , ITS SUCCESSORS, ASSIGNS , OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, INTERRUPTION OF BUSINESS, NOR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND INCURRED BY SPONSOR OR ANY OTHER PERSON WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF WISTAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS .

Wistar / OncoCyte Sponsored Research Agreement
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9.2            No Warranties . THE RESULTS OF THE SPONSORED RESEARCH AND ANY INVENTIONS ARE PROVIDED ON AN "AS IS" BASIS AND WIST AR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDUCT , COMPLETION, SUCCESS OR PARTICULAR RESULTS OF THE SPONSORED RESEARCH OR THE CONDITION OF ANY INVENTIONS, ANY MATERIALS DERIVED THEREFROM OR ANY PATENTS . BY WAY OF EXAMPLE BUT NOT OF LIMITATION, WISTAR MAKES NO REPRESENTATIONS OR WARRANTIES OF COMMERCIAL UTILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR THAT THE USE OF THE RESULTS OF THE SPONSORED RESEARCH, ANY MATERIALS DERIVED THEREFROM OR ANY INVENTIONS WILL NOT INFRINGE ANY PATENT, COPYRIGHT OR TRADEMARK OR OTHER PROPRIETARY OR PROPERTY RIGHTS OF OTHERS. WISTAR EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE RESULTS OF THE SPONSORED RESEARCH AND ANY INVENTIONS ARE FREE FROM THE RIGHTFUL CLAIMS OF ANY THIRD PARTY. WISTAR SHALL NOT BE LIABLE TO SPONSOR, ITS SUCCESSORS, ASSIGNS OR ANY THIRD PARTY WITH RESPECT TO ANY CLAIM ON ACCOUNT OF, OR ARISING FROM, THE USE OF THE RESULTS OF THE SPONSORED RESEARCH OR ANY INVENTIONS SUPPLIED HEREUNDER OR THE MANUFACTURE, USE OR SALE OF PRODUCTS OR ANY OTHER MATERIAL OR ITEM DERIVED THEREFROM.

9.3            Indemnification. Sponsor will indemnify and hold ha1mless Wistar, the Principal Investigator, and any of Wistar's trustees, managers, officers, agents and employees (hereinafter referred to collectively as the " Indemnified Persons"), from and against any and all liability, loss, damage, action, claim or expense (including attorney's fees) suffered or incurred by the Indemnified Persons due to claims by a person not a party to this Agreement (the "Indemnified Losses") which result from or arise out of (a) this Agreement , the options granted hereunder or any licenses granted pursuant thereto, and (b) the successful enforcement by the Indemnified Persons of its rights under this Section 9 . 3. This indemnification obligations shall apply regardless of the negligence of the Indemnified Persons.

(i)             Procedures . The Indemnified Persons shall promptly notify Sponsor of any claim or action giving rise to any Indemnified Losses subject to the provisions of Section 9.3. Sponsor s hall have the right to defend any such claim or action, at its cost and expense. Sponsor shall not settle or compromise any such claim or action in a manner that imposes any restrictions or obligations on the Indemnified Persons without the Indemnified Persons prior written consent. If Sponsor fails or declines to assume the defense of any such claim or action within thi1iy (30) days after notice thereof, Wistar may assume the defense of such claim or action for the account of and at the risk of Sponsor, and any Indemnified Losses related thereto shall be conclusively deemed Indemnified Losses of Sponsor. Sponsor shall pay promptly to the Indemnified Persons any Indemnified Losses to which the foregoing indemnity related, as incurred. The indemnification rights of the Indemnified Persons contained herein are in addition to all other rights which such Indemnified Persons may have at law or in equity or otherwise.

Wistar / OncoCyte Sponsored Research Agreement
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ARTICLE 10 - ADDITIONAL PROVISIONS

10.1         Arbitration .

(i)            Except as provided in Section 7.4 hereof, all disputes arising between the parties under this Agreement shall be settled by arbitration conducted in the English language in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The parties will cooperate with each other in causing the arbitration to be held in as efficient and expeditious a manner as practicable . Any arbitration proceeding instituted under this Agreement shall be brought in Philadelphia, Pennsylvania .

(ii)          Any award rendered by the arbitrators shall be final and binding upon the parties hereto . Judgment upon the award may be entered in any court of record of competent jurisdiction. Each party shall pay its own expenses of arbitration and the expenses of the arbitrators shall be equally shared unless the arbitrators assess as part of their award all or any part of the arbitration expenses of one party (including reasonable attorney's fees) against the other party.

(iii)          Sponsor consents to the jurisdiction of any such proceeding and waives any objection that it may have to personal jurisdiction or the laying of venue of any such proceeding.

10.2         Assignment. No rights hereunder may be assigned by Sponsor, directly or by merger or other operation of law, without the express written consent of Wistar , except that Sponsor may assign this Agreement in whole or in part (i) to any of its affiliates, (ii) as a result of any merger or consolidation of Sponsor with any other business entity, or (iii) as a sale of Sponsor's assets associated with its research and development activities that include the scope of the Sponsored Research ; provided that Sponsor immediately notify Wistar of any such pe1mitted assignment. Any prohibited assignment of this Agreement of the rights hereunder shall be null and void. No assignment shall relieve Sponsor of responsibility for the performance of any accrued obligations which it has prior to such assignment. This Agreement shall inure to the benefit of permitted assigns of Sponsor.

10.3         No Waiver . A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement.

10.4         Independent Contractor.   Nothing herein shall be deemed to establish a relationship of principal and agent between Wistar and Sponsor, nor any of their agents or employees for any purpose whatsoever. This Agreement shall not be construed as constituting Wistar and Sponsor as partners , or as creating any other form of legal association or arrangement which would impose liability upon one party for the act or failure to act of the other party .

Wistar / OncoCyte Sponsored Research Agreement
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10.5         Notices . Any notice under this Agreement shall be sufficiently given if sent in writing by prepaid first class, certified or registered mail, return receipt requested , addressed a s follows:

If to Wistar :

The Wistar Institute
3601 Spruce Street
Philadelphia , PA 19104
Attn : Office of Business Development

with copy to Dr. Louise C. Showe and V . P., Legal & External Affairs at the same
address.

If to Sponsor:

OncoCyte Corporation
1301 Harbor Bay Parkway
Alameda , CA 94502
Attn: Dr. Joseph Wagner

10.6         Entire Agreement. This Agreement embodies the entire understanding between the parties relating to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral. This Agreement may not be varied except by a written document signed by duly authorized representatives of both parties.

10.7         Severability . If any of the provisions of this Agreement are determined to be invalid or unenforceable in any jurisdiction, such determination shall not render invalid or unenforceable the remaining provisions hereof or affect the validity or enforceability of any of the terms of this Agreement in any other jurisdiction .

10.8         Headings . The headings and captions used in this Agreement are for convenience of referen c e only and shall not affect its construction or interpretation.

10.9         No Third Party Benefits . Nothing in this Agreement, express or implied, is intended to confer on any person other than the parties hereto or their permitted assigns , any benefits, rights or remedies .

10.10       Governing Law . This Agreement shall be construed and governed in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to conflict of law prov 1 s1ons.

10.11       Independent Research . This Agreement shall not be construed to limit the freedom of individuals participating in the Sponsored Research to engage in any other research .

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10.12       Nondiscrimination . Wistar and Sponsor shall not discriminate against any employee or applicant for employment because of race, color, sex, sexual or affectional preference, age, religion, national or ethnic origin, or handicap.

10.13       Force Majeure . Neither party shall be liable for any failure to perf01m as required by this Agreement to the extent such failure to perform is due to circumstances reasonably beyond such party's control, including, without limitation , labor disturbances or labor disputes of any kind, accidents, failure of any governmental required for full performance, civil disorders or commotions, terrorism , acts of God, energy or other conservation measures imposed by law or regulation, explosions, failure of utilities, mechanical breakdowns , material shortages, disease, or other such occurrences.

IN WITNESS WHEREOF, the duly authorized representatives of the patties hereby execute this Agreement as of the Effective Date.

THE WISTAR INSTITUTE OF ANATOMY
 
ONCOCYTE CORPORATION
AND BIOLOGY
       
             
By:
/s/Russell E. Kaufman
 
By:
/s/Joseph Wagner
 
 
Russell E. Kaufman, M.D.
   
Joseph Wagner, P.D.
 
 
President and CEO
   
CEO
 
             
Date:
September 30, 2013
 
Date:
 
 
             
 
AGREED TO AND ACCEPTED:
       
             
 
By:
/s/ Louise C. Showe
       
   
Louise C. Showe, Ph.D.
       
             
 
Date:
September 30, 2013
       

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SPONSORED RESEARCH AGREEMENT

Schedule I

1.    Wistar will pursue the development of gene and miRNA signatures from stabilized whole blood samples for the diagnosis of early stage NSCLC in at risk patients who may include heavy smokers and ex-smokers, individuals exposed to radon or asbestos and individuals with indeterminate lung nodules found by a variety of imaging methods.

2.    Samples will be collected from patients diagnosed with lung cancer, control subjects that will include patients with non-malignant smoking associated lung disease, patients with lung nodules biopsied and found to be benign and patients with lung nodules followed over time that are judged to be benign.

3.    In   addition to the collection of whole blood samples, for RNA studies Wistar will collect plasma and serum samples from the same patients at the time of the blood draw for the development of additional assays for detection of lung cancer signatures.

4.    When possible, Wistar will also collect stabilized whole blood and plasma samples from cancer patients and patients with high risk nodules after lung resection to assess changes in the various predictive platforms being developed.

Wistar / OncoCyte Sponsored Research Agreement
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SPONSORED RESEARCH AGREEMENT
Schedule II Term Sheet
For Discussion Purposes Only

ONCOCYTE CORPORATION ( " LICENSEE")

LICENSED PATENT(S)
 
The patent applications listed in the license, all patents issuing from such applications , continuations , additions, div i sions, renewals, extensions, reexaminations and reissues that claim the benefit of such applications or patents , and all foreign counterparts of any of the foregoing.
     
LICENSED PRODUCT(S)
 
All products the manufacture ,   use ,   sale or other disposition of which (i) is subject to a VALID CLAIM of the LICENSED PATENTS, or which , in whole or in part, are identified, discovered or developed by use or practice of the LICENSED PA TENTS, which use or practice wou l d infringe a VALID CLAIM of the LICENSED PATENTS but for the l icense granted, or (ii) uses, incorporates or could not have been developed or manufactured but for the use of any Wistar biological material or technical information that is not covered by the LICENSED PATENTS .
     
VALID CLAIM
 
A claim of (i) a patent application included in the LICENSED PA TENTS that has been neither abandoned nor pending for more than seven (7) years, or (ii) an issued LICENSED PATENT that has not been withdrawn, canceled or disclaimed or held invalid by a court or governmental authority of competent jurisdiction in an unappealed or unappealable decision no longer subject to discretionary review (for example, by way of writ of certiorari) or other review.
     
GRANT OF LICENSE
 
Exclusive , wor l dwide, royalty-bearing license to make, have made, use, import and sell LICENSED PRODUCTS and to practice under and use the LICENSED PATENTS in connection therewith, subject to the RESERVED RIGHTS.
 

Wistar / OncoCyte Sponsored Research Agreement
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