BIOCEPT INC (Form: S-8, Received: 03/31/2014 17:19:28)

Biocept, Inc.

/s/ Michael W. Nall

Michael W. Nall, Chief Executive Officer

As filed with the Securities and Exchange Commission on March 31, 2014

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

Biocept, Inc.

(Exact name of registrant as specified in its charter)


Delaware		80-0943522
(State or other jurisdiction of incorporation or organization)		(IRS Employer Identification No.)

5810 Nancy Ridge Drive, San Diego, CA		92121
(Address of principal executive offices)		(Zip Code)

2013 Equity Incentive Plan

2007 Equity Incentive Plan

Restricted Stock Unit Grant Notices / Agreements with David F. Hale, each dated as of March 10, 2011

Restricted Stock Unit Grant Notice / Agreement with Ivor Royston, dated as of November 8, 2010, as amended on February 15, 2012

(Full title of the plan)

William G. Kachioff

Senior Vice-President, Finance and

Chief Financial Officer

Biocept, Inc.

5810 Nancy Ridge Drive

San Diego, CA 92121

(Name and address of agent for service)

(858) 320-8200

(Telephone number, including area code, of agent for service)

Copy to:

Michael Brown, Esq.

Stradling Yocca Carlson & Rauth, P.C.

4365 Executive Drive, Suite 1500

San Diego, CA 92121

(858) 926-3000

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	¨ (Do not check if a smaller reporting company)	Smaller reporting company	x

CALCULATION OF REGISTRATION FEE



Title of Securities To Be Registered	Amount To Be Registered (1)	Proposed Maximum Offering Price Per Share	Proposed Maximum Aggregate Offering Price (2)	Amount of Registration Fee
Common Stock, $0.0001 par value	1,419,137 shares	(2)	$10,148,091	$1,307.07

(1)

Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Company’s common stock that become issuable under the 2013 Equity Incentive Plan (“2013 Plan”), the 2007 Equity Incentive Plan (“2007 Plan”), the two Restricted Stock Unit Grant Notices / Agreements with David F. Hale, dated as of March 10, 2011 (“Hale RSU Agreements”) and the Restricted Stock Unit Grant Notice / Agreement with Ivor Royston, dated as of November 8, 2010, as amended on February 15, 2012 (“Royston RSU Agreement”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Company’s outstanding shares of common stock.

(2)

The aggregate offering price for the 1,419,137 shares of Common Stock registered hereby, consisting of (a) 1,203,571 shares which may be issued under the 2013 Plan, (b) 142,415 shares which may be issued under the 2007 Plan, (c) 63,866 shares which may be issued under the Hale RSU Agreements and (d) 9,285 shares which may be issued under the Royston RSU Agreement, is estimated solely for the purpose of calculating the registration fee, in accordance with Rule 457(c) and 457(h), using (x) for the 668,904 shares underlying the outstanding stock options under the 2013 Plan and 2007 Plan, the $6.95 per share weighted average exercise price of such outstanding stock options based on exercise prices for such outstanding stock options ranging from $4.62 per share to $9.11 per share, and (y) for the 750,233 other shares of Common Stock registered hereby, the $7.33 per share price of Common Stock determined in accordance with Rule 457(c), using the average of the high and low prices, as reported by NASDAQ, of the Common Stock on March 27, 2014.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

In accordance with Rule 428(b) under the Securities Act of 1933, as amended (the “Securities Act”), the documents containing the information called for by Part I of Form S-8 will be sent or given to individuals who participate in the 2013 Plan, the 2007 Plan, the Hale RSU Agreements and/or the Royston RSU Agreement and such documents are not being filed with or included in this Registration Statement on Form S-8.

PART II

INFORMATION REQUIRED IN REGISTRATION STATEMENT

Item 3.

Incorporation of Documents by Reference .

Biocept, Inc. (the “Company”) hereby incorporates by reference into this Registration Statement the following documents previously filed by the Company with the Securities and Exchange Commission (the “Commission”):

(a) The Company’s annual report on Form 10-K, for the year ended December 31, 2013, filed with the Commission on March 28, 2014;

(b) The Company’s current report on Form 8-K filed with the Commission on February 14, 2014;

(d) The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A filed under Section 12 of the Securities Exchange Act of 1934 (the “Exchange Act”) on January 28, 2014, including any amendment or report filed for the purpose of updating that description.

All documents, reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and before the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents; provided, however, that documents, reports and definitive proxy or information statements, or portions thereof, which are furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes that statement. Any such statement so modified or superseded shall not constitute a part of this Registration Statement, except as so modified or superseded.

Item 4.

Description of Securities .

Not applicable.

Item 5.

Interests of Named Experts and Counsel .

Not applicable.

Item 6.

Indemnification of Directors and Officers .

The Company is incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law (“DGCL”) provides that a Delaware corporation may indemnify any persons who were, are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil,

criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who were, are, or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys’ fees) actually and reasonably incurred.

The Company’s amended certificate of incorporation provides that to the fullest extent permitted by applicable law, the Company is authorized to provide indemnification of (and advancement of expenses to) its directors and officers, even in excess of the indemnification and advancement otherwise permitted by Section 145 of the DGCL, subject only to limits created by applicable Delaware law (statutory or non-statutory), with respect to actions for breach of duty to a corporation, its stockholders, and others. The Company’s Amended and Restated Bylaws provide that the Company shall indemnify its directors and officers to the maximum extent permitted by law, and shall pay expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Company.

The Company has an insurance policy in place that covers its officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act or otherwise.

The Company has entered into separate indemnification agreements with its directors and officers, providing for indemnification to the fullest extent permitted by the laws of the State of Delaware. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder.

In addition, the Company’s amended certificate of incorporation provides that, pursuant to the DGCL, its directors shall not be liable for monetary damages for breach of the directors’ fiduciary duty to the Company and its stockholders. This provision of the amended certificate of incorporation does not eliminate the directors’ fiduciary duty, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under the DGCL. In addition, each director will continue to be subject to liability for breach of the director’s duty of loyalty to the Company for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under the DGCL. The provision also does not affect a director’s responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

Item 7.

Exemption from Registration Claimed .

Not applicable.

Item 8.

Exhibits .


Exhibit No.		Description of Exhibit

3.1.4		Certificate of Amendment of Certificate of Incorporation, filed February 4, 2014. [Incorporated by reference to Exhibit 3.1.4 to the Company’s Current Report on Form 8-K, filed with the Commission on February 14, 2014.]

3.2.1		Amended and Restated Bylaws as effective February 10, 2014. [Incorporated by reference to Exhibit 3.2.1 to the Company’s Registration Statement on Form S-1 (File No. 333-191323), filed with the Commission on September 23, 2013.]

5.1		Opinion of Stradling Yocca Carlson & Rauth, P.C.

23.1		Consent of Mayer Hoffman McCann P.C., Independent Registered Public Accounting Firm.

23.2		Consent of Stradling Yocca Carlson & Rauth, P.C. (contained in Exhibit 5.1 hereto).

99.1		Biocept, Inc. 2013 Equity Incentive Plan. [Incorporated by reference to Exhibit 10.2 to Amendment No. 3 to the Company’s Registration Statement on Form S-1 (File No. 333-191323), filed with the Commission on November 20, 2013.]

99.2		Biocept, Inc. 2007 Equity Incentive Plan. [Incorporated by reference to Exhibit 10.1 to the Company’s Registration Statement on Form S-1 (File No. 333-191323), filed with the Commission on September 23, 2013.]

99.3		Restricted Stock Unit Grant Notice / Agreement with David F. Hale, dated as of March 10, 2011. (“Performance-Based”)

99.4		Restricted Stock Unit Grant Notice / Agreement with David F. Hale, dated as of March 10, 2011. (“Time-Based”)

99.5		Restricted Stock Unit Grant Notice / Agreement with Ivor Royston, dated as of November 8, 2010, as amended on February 15, 2012. [Incorporated by reference to Exhibit 10.23 to the Company’s Registration Statement on Form S-1 (File No. 333-191323), filed with the Commission on September 23, 2013.]

Item 9.

Undertakings .

(a)	The Company hereby undertakes:

(1)

To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i)

To include any prospectus required by section 10(a)(3) of the Securities Act;

(ii)

To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement.

(iii)

To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement; and

(2)

That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3)

To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b) The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on March 31, 2014.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.


/s/ Michael W. Nall	Chief Executive Officer, President and Director (Principal Executive Officer)	March 31, 2014
Michael W. Nall

/s/ William G. Kachioff	Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)	March 31, 2014
William G. Kachioff

/s/ David F. Hale	Chairman and Director	March 31, 2014
David F. Hale

/s/ Marsha A. Chandler	Director	March 31, 2014
Marsha A. Chandler

/s/ Bruce E. Gerhardt	Director	March 31, 2014
Bruce E. Gerhardt

/s/ Bruce A. Huebner	Director	March 31, 2014
Bruce A. Huebner

/s/ Edward Neff	Director	March 31, 2014
Edward Neff

/s/ Ivor Royston	Director	March 31, 2014
Ivor Royston

/s/ M. Faye Wilson	Director	March 31, 2014
M. Faye Wilson


		EXHIBIT INDEX

Exhibit No.		Description of Exhibit

3.1.4		Certificate of Amendment of Certificate of Incorporation, filed February 4, 2014. [Incorporated by reference to Exhibit 3.1.4 to the Company’s Current Report on Form 8-K, filed with the Commission on February 14, 2014.]

3.2.1		Amended and Restated Bylaws as effective February 10, 2014. [Incorporated by reference to Exhibit 3.2.1 to the Company’s Registration Statement on Form S-1 (File No. 333-191323), filed with the Commission on September 23, 2013.]

5.1		Opinion of Stradling Yocca Carlson & Rauth, P.C.

23.1		Consent of Mayer Hoffman McCann P.C., Independent Registered Public Accounting Firm.

23.2		Consent of Stradling Yocca Carlson & Rauth, P.C. (contained in Exhibit 5.1 hereto).

99.1		Biocept, Inc. 2013 Equity Incentive Plan. [Incorporated by reference to Exhibit 10.2 to Amendment No. 3 to the Company’s Registration Statement on Form S-1 (File No. 333-191323), filed with the Commission on November 20, 2013.]

99.2		Biocept, Inc. 2007 Equity Incentive Plan. [Incorporated by reference to Exhibit 10.1 to the Company’s Registration Statement on Form S-1 (File No. 333-191323), filed with the Commission on September 23, 2013.]

99.3		Restricted Stock Unit Grant Notice / Agreement with David F. Hale, dated as of March 10, 2011. (“Performance-Based”)

99.4		Restricted Stock Unit Grant Notice / Agreement with David F. Hale, dated as of March 10, 2011. (“Time-Based”)

99.5		Restricted Stock Unit Grant Notice / Agreement with Ivor Royston, dated as of November 8, 2010, as amended on February 15, 2012. [Incorporated by reference to Exhibit 10.23 to the Company’s Registration Statement on Form S-1 (File No. 333-191323), filed with the Commission on September 23, 2013.]

Exhibit 5.1

March 31, 2014

Biocept, Inc.

5810 Nancy Ridge Drive

San Diego, CA 92121

RE:

Registration Statement on Form S-8 for the Registration of 1,419,137 Shares of Common Stock of Biocept, Inc.

Ladies and Gentlemen:

At your request, we have examined the Registration Statement on Form S-8 (the “Registration Statement”) being filed on this date by Biocept, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of up to 1,203,571 shares of the Company’s common stock, $.0001 par value (“Common Stock”), reserved for issuance under the Company’s 2013 Equity Incentive Plan (the “2013 Plan”), an aggregate of up to 142,415 shares of Common Stock reserved for issuance under the Biocept, Inc. 2007 Equity Incentive Plan (as assumed by the Company, the “2007 Plan”), 63,866 shares of Common Stock reserved for issuance under the two Restricted Stock Unit Grant Notices / Agreements with David F. Hale, dated as of March 10, 2011 (as assumed by the Company, the “Hale RSU Agreements”) and 9,285 shares of Common Stock reserved for issuance under the Restricted Stock Unit Grant Notice / Agreement with Ivor Royston, dated as of November 8, 2010, as amended on February 15, 2012 (as assumed by the Company, the “Royston RSU Agreement”). We have examined the proceedings heretofore taken and are familiar with the additional proceedings proposed to be taken by the Company in connection with the authorization, issuance and sale of the securities referred to hereinabove.

Based on the foregoing, it is our opinion that the 1,419,137 shares of the Company’s Common Stock, when issued against full payment therefor in accordance with the respective terms and conditions of the 2013 Plan and of any awards thereunder, of the 2007 Plan and of any awards thereunder, of the Hale RSU Agreements and of the Royston RSU Agreement, as the case may be, will be legally and validly issued, fully paid and nonassessable.

We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement, including any amendments thereto.


		Very truly yours,

		/s/ Stradling Yocca Carlson & Rauth, P.C.

		STRADLING YOCCA CARLSON & RAUTH, P.C.

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in the Registration Statement on Form S-8 of Biocept, Inc., of our report dated March 28, 2014, with respect to the financial statements of Biocept, Inc. included in the Annual Report on Form 10-K of Biocept, Inc. for the year ended December 31, 2013.

/s/ Mayer Hoffman McCann P.C.

San Diego, California

March 31, 2014

Exhibit 99.3

B IOCEPT , I NC .

R ESTRICTED S TOCK U NIT G RANT N OTICE

(2007 E QUITY I NCENTIVE P LAN )

Biocept, Inc. (the “Company” ), hereby awards to Participant a Restricted Stock Unit Award for the number of shares of the Company’s Series BB Preferred Stock set forth below (the “Award” ). The Award is granted outside the Company’s 2007 Equity Incentive Plan (the “Plan” ), but shall be governed by the terms of the Plan as if the Award had been granted under the Plan. The Award is subject to all of the terms and conditions as set forth herein and in the Plan and the Restricted Stock Unit Agreement, both of which are attached hereto and incorporated herein in their entirety. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Plan or the Restricted Stock Unit Agreement. In the event of any conflict between the terms in the Award and the Plan, the terms of the Plan shall control.


Participant:		David F. Hale
Date of Grant:		March 10, 2011
Vesting Commencement Date:		January 1, 2011
Number of Shares Subject to Award:		To be determined pursuant to Vesting Schedule below
Consideration:		Participant’s Services


Vesting Schedule :		No shares subject to the Award shall vest unless a Change in Control or Initial Public Offering (as defined below) occurs within 10 years of the Vesting Commencement Date (the “ *Vesting Event* ”). An Initial Public Offering means the effectiveness of an underwriting agreement between the Company and the underwriter(s) managing the initial public offering of the Common Stock, pursuant to which the Common Stock is priced for the initial public offering. Upon a Vesting Event, the Participant shall vest in a number of shares underlying the Award based upon achievement of the following Milestones (as defined below) on or prior to the date of such Vesting Event as set forth below; provided, that in the event Participant’s Continuous Service is involuntarily terminated by the Company or its shareholders without Cause prior to the Vesting Event but before all of the Milestones have been achieved, and Participant furnished Biocept an effective waiver and release of claims in a form specified by Biocept and consistent with standard practices, then (i) for each Milestone that has been achieved, a number of shares of the Company’s Series BB Preferred Stock (the “ *Series BB* ”) equal to that set forth below for the applicable Milestone shall vest and (ii) for each Milestone that has not been achieved, a number of shares of Series BB equal to 0.5% of the Company’s capitalization on a fully-diluted basis immediately prior to the Vesting Event (assuming the exercise of all outstanding warrants and stock options and the unallocated pool of stock awards available for future issuance under the Plan) shall vest upon such Vesting Event. If, during Participant’s Continuous Service and prior to the Vesting Event, there has been commercial acceptance of the Company’s OncoCEE-BR ^TM test, as determined by the Board in good faith (the “ *Commercial Milestone* ”), then a number of shares of Series BB equal to 0.5% of the Company’s capitalization on a fully-diluted basis immediately following achievement of the Commercial Milestone (assuming the exercise of all outstanding warrants and stock options and the unallocated pool of stock awards available for future issuance under the Plan) shall vest upon such Vesting Event. If, during Participant’s Continuous Service and prior to the Vesting Event, the Company has received an aggregate of at least $15,000,000 in new funds from: (a) the sale of the Company’s securities to one or more outside investors who are not currently shareholders of the Company; (b) third party collaborators or partners; and/or (c) grant, debt or other non-dilutive funding from third parties (the “ *Funding Milestone* ”), then a number of shares of Series BB equal to 0.5% of the Company’s capitalization on a fully-diluted basis immediately following achievement of the Funding Milestone (assuming the exercise of all outstanding warrants and stock options and the unallocated pool of stock awards available for future issuance under the Plan) shall vest upon such Vesting Event. If, during Participant’s Continuous Service and prior to the Vesting Event, all of the following objectives have been achieved, as determined by the Board in good faith (the “ *Leadership Milestone* ,” and collectively with the Commercial Milestone and the Funding Milestone, the “ *Milestones* ”):

		— Implementation of a change in the culture of the Company from research to business; — Hiring of a new Chief Executive Officer approved by the Board;


		— Development of a two-year operating plan and a five-year strategic plan, each of which is approved by the Board; — Restructuring of the Board to support financing and long term growth; — Completion and presentation to the Board of an assessment of the Company’s senior management team and implementation of any changes that need to be made following such assessment that are approved by the Board; — Development and presentation to the Board of a plan for establishing the clinical value of circulating tumor cells (“ *CTCs* ”) in the treatment of patients with cancer and implementation of the plan following approval by the Board; — Development of an overall branding program for the Company’s core business that is approved by the Board; — Development of corporate objectives for 2011 that are approved by the Board; and — Establishment of the Company as the premiere partner of the Bio-Pharma industry in performing CTC tests for clinical trials;

		then a number of shares of Series BB equal to 0.5% of the Company’s capitalization on a fully-diluted basis immediately following achievement of the Leadership Milestone (assuming the exercise of all outstanding warrants and stock options and the unallocated pool of stock awards available for future issuance under the Plan) shall vest upon such Vesting Event. In addition, if a Vesting Event occurs during Participant’s Continuous Service, but before all of the Milestones have been achieved, then (i) for each Milestone that has been achieved, a number of shares of Series BB equal to that set forth above for the applicable Milestone shall vest and (ii) for each Milestone that has not been achieved, a number of shares of Series BB equal to 0.5% of the Company’s capitalization on a fully-diluted basis immediately prior to the Vesting Event (assuming the exercise of all outstanding warrants and stock options and the unallocated pool of stock awards available for future issuance under the Plan) shall vest upon such Vesting Event.

Issuance Schedule:		The shares will be issued in accordance with the issuance schedule set forth in Section 6 of the Restricted Stock Unit Agreement.

Additional Terms/Acknowledgements: The undersigned Participant acknowledges receipt of, and understands and agrees to, this Restricted Stock Unit Grant Notice, the Restricted Stock Unit Agreement and the Plan. Participant further acknowledges that as of the Date of Grant, this Restricted Stock Unit Grant Notice, the Restricted Stock Unit Agreement and the Plan set forth the entire understanding between Participant and the Company regarding the Award and supersedes all prior oral and written agreements on that subject.


B IOCEPT , I NC .		P ARTICIPANT :

By:	/s/ M. Faye Wilson	/s/ David F. Hale
	Signature		Signature



Title:						Date:

Date:


A TTACHMENTS :		Restricted Stock Unit Agreement, 2007 Equity Incentive Plan

B IOCEPT , I NC .

2007 E QUITY I NCENTIVE P LAN

R ESTRICTED S TOCK U NIT A GREEMENT

Pursuant to the Restricted Stock Unit Grant Notice (“ Grant Notice ”) and this Restricted Stock Unit Agreement and in consideration of your services, Biocept, Inc. (the “ Company ”) has awarded you a Restricted Stock Unit Award (the “ Award ”) to be governed by the terms of the Company’s 2007 Equity Incentive Plan (the “ Plan ”) as if the Award had been granted under the Plan. Your Award is granted to you effective as of the Date of Grant set forth in the Grant Notice for this Award. This Restricted Stock Unit Award Agreement shall be deemed to be agreed to by the Company and you upon the signing by you of the Restricted Stock Unit Grant Notice to which it is attached. Defined terms not explicitly defined in this Restricted Stock Unit Agreement shall have the same meanings given to them in the Plan. In the event of any conflict between the terms in this Restricted Stock Unit Agreement and the Plan, the terms of the Plan shall control. The details of your Award, in addition to those set forth in the Grant Notice and the Plan, are as follows.

1. G RANT OF THE A WARD . This Award represents the right to be issued on a future date the number of shares of the Company’s Series BB Preferred Stock as indicated in the Grant Notice. As of the Date of Grant, the Company will credit to a bookkeeping account maintained by the Company for your benefit (the “ Account ”) the number of shares of Series BB Preferred Stock subject to the Award. This Award was granted in consideration of your services to the Company. Except as otherwise provided herein, you will not be required to make any payment to the Company (other than past and future services to the Company) with respect to your receipt of the Award, the vesting of the shares or the delivery of the underlying Series BB Preferred Stock.

2. V ESTING .

(a) In General. Subject to the limitations contained herein, your Award will vest, if at all, in accordance with the vesting schedule provided in the Grant Notice.

3. N UMBER OF S HARES .

(a) The number of shares subject to your Award may be adjusted from time to time for Capitalization Adjustments, as provided in the Plan.

(b) Any shares, cash or other property that becomes subject to the Award pursuant to this Section 3 and Section 7, if any, shall be subject, in a manner determined by the Board, to the same forfeiture restrictions, restrictions on transferability, and time and manner of delivery as applicable to the other shares covered by your Award.

(c) Notwithstanding the provisions of this Section 3, no fractional shares or rights for fractional shares of Series BB Preferred Stock shall be created pursuant to this Section 3. The Board shall, in its discretion, determine an equivalent benefit for any fractional shares or fractional shares that might be created by the adjustments referred to in this Section 3.

4. S ECURITIES L AW C OMPLIANCE . You may not be issued any shares under your Award unless either (i) the shares are registered under the Securities Act; or (ii) the Company has determined that such issuance would be exempt from the registration requirements of the Securities Act. Your Award also must comply with other applicable laws and regulations governing the Award, and you will not receive such shares if the Company determines that such receipt would not be in material compliance with such laws and regulations.

5. T RANSFER R ESTRICTIONS . Prior to the time that shares of Series BB Preferred Stock have been delivered to you, you may not transfer, pledge, sell or otherwise dispose of this Award or the shares issuable in respect of your Award, except as expressly provided in this Section 5. For example, you may not use shares that may be issued in respect of your Award as security for a loan. The restrictions on transfer set forth herein will lapse upon delivery to you of shares in respect of your vested Award.

(a) Death . Your Award is transferable by will and by the laws of descent and distribution. In addition, upon receiving written permission from the Board or its duly authorized designee, you may, by delivering written notice to the Company, in a form provided by or otherwise satisfactory to the Company and any broker designated by the Company to effect transactions under the Plan, designate a third party who, in the event of your death, shall thereafter be entitled to receive any distribution of Series BB Preferred Stock or other consideration to which you were entitled at the time of your death pursuant to this Agreement. In the absence of such a designation, your executor or administrator of your estate shall be entitled to receive, on behalf of your estate, such Series BB Preferred Stock or other consideration.

(b) Certain Trusts. Upon receiving written permission from the Board or its duly authorized designee, you may transfer your Award to a trust if you are considered to be the sole beneficial owner (determined under Section 671 of the Code and applicable state law) while the Award is held in the trust, provided that you and the trustee enter into transfer and other agreements required by the Company.

(c) Domestic Relations Orders. Upon receiving written permission from the Board or its duly authorized designee, and provided that you and the designated transferee enter into transfer and other agreements required by the Company, you may transfer your Award or your right to receive the distribution of Series BB Preferred Stock or other consideration thereunder, pursuant to a domestic relations order that contains the information required by the Company to effectuate the transfer. You are encouraged to discuss the proposed terms of any division of this Award with the Company prior to finalizing the domestic relations order to help ensure the required information is contained within the domestic relations order.

6. D ATE OF I SSUANCE .

(a) The Company will deliver to you a number of shares of the Company’s Series BB Preferred Stock equal to the number of vested shares subject to your Award, including

any additional shares received pursuant to Section 3 above that relate to those vested shares on the applicable vesting date(s). However, if a scheduled delivery date falls on a date that is not a business day, such delivery date shall instead fall on the next following business day.

(b) Notwithstanding the foregoing, in the event that (i) you are subject to the Company’s policy permitting officers and directors to sell shares only during certain “window” periods, in effect from time to time or you are otherwise prohibited from selling shares of the Company’s Series BB Preferred Stock in the public market and any shares covered by your Award are scheduled to be delivered on a day (the “ Original Distribution Date ”) that does not occur during an open “window period” applicable to you, as determined by the Company in accordance with such policy, or does not occur on a date when you are otherwise permitted to sell shares of the Company’s Series BB Preferred Stock on the open market, and (ii) the Company elects not to satisfy its tax withholding obligations by withholding shares from your distribution, then such shares shall not be delivered on such Original Distribution Date and shall instead be delivered on the first business day of the next occurring open “window period” applicable to you pursuant to such policy (regardless of whether you are still providing continuous services at such time) or the next business day when you are not prohibited from selling shares of the Company’s Series BB Preferred Stock in the open market, but in no event later than the fifteenth (15th) day of the third calendar month of the calendar year following the calendar year in which the Original Distribution Date occurs. The form of such delivery ( e.g. , a stock certificate or electronic entry evidencing such shares) shall be determined by the Company.

(c) Notwithstanding the foregoing, the following provisions shall apply if you elect to defer delivery of the shares subject to your Award beyond the vesting date in accordance with this Section:

(i) With respect to shares subject to the Award that vest no sooner than 13 months following the Date of Grant specified in your Grant Notice and if, within the 30-day period following the Date of Grant indicated on your Grant Notice, you elect to defer delivery of such shares of stock beyond the vesting date, then the Company will not deliver such shares on the vesting date or dates provided in your Grant Notice, but will instead deliver such shares to you on the date or dates that you so elect (the “ Settlement Date ”) If such deferral election is made, the Committee shall, in its sole discretion, establish the rules and procedures for such election which shall be evidenced by a Restricted Stock Unit Election Agreement.

(ii) If the Company determines that you are subject to its policy regarding insider trading of the Company’s stock or you are otherwise prohibited from selling shares of the Company’s stock in the public market and any shares of stock subject to your Award are scheduled to be delivered on a Settlement Date that does not occur during an open “window period” applicable to you, as determined by the Company in accordance with such policy, or a day when you are prohibited from selling shares of the Company’s stock in the public market and the Company elects not to satisfy its tax withholding obligations by withholding shares from your distribution, then such shares shall not be delivered on such Settlement Date and shall instead be delivered as soon as practicable on the first business day within the next open “window period” applicable to you pursuant to such policy or the next day when you are not prohibited from selling shares of the Company’s stock in the public market (regardless of whether you are still providing continuous services at such time); provided,

however, that unless the delay until the next open window period or the next day when you are not prohibited from selling shares of the Company’s stock in the public market would not result in the imposition of any additional taxes under the Code (including section 409A of the Code), the delivery of the shares shall not be delayed pursuant to this provision beyond sixty (60) days following the selected Settlement Date. The form of such delivery ( e.g. , a stock certificate or electronic entry evidencing such shares) shall be determined by the Company.

(iii) Notwithstanding anything to the contrary set forth in the Plan, in the event of a Corporate Transaction that is not a 409A Change of Control, then the surviving or acquiring corporation (or its parent company) (the “Acquiring Entity”) must either assume, continue or substitute your Award, and shares subject to your Award that vest, if any, shall be issued to you by the Acquiring Entity in accordance with the terms of this Agreement and your deferral election. For such purposes, a “409A Change in Control” is a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the Company’s assets, as provided in Internal Revenue Code Section 409A(a)(2)(A)(v) and applicable guidance thereunder.

7. D IVIDENDS . You shall be entitled to receive payments equal to any cash dividends and other distributions paid with respect to a corresponding number of shares covered by your Award, provided that if any such dividends or distributions are paid in shares, the Fair Market Value of such shares shall be converted into additional shares covered by the Award, and further provided that such additional shares shall be subject to the same forfeiture restrictions and restrictions on transferability as apply to the shares subject to the Award with respect to which they relate.

8. R ESTRICTIVE L EGENDS . The shares issued under your Award shall be endorsed with appropriate legends determined by the Company.

9. A WARD NOT A S ERVICE C ONTRACT .

(a) Your service as a member of the Board is not for any specified term and may be terminated by you or by the Company at any time, for any reason, with or without cause and with or without notice. Nothing in this Restricted Stock Unit Agreement (including, but not limited to, the vesting of your Award pursuant to the schedule set forth in Section 2 herein or the issuance of the shares subject to your Award), the Plan or any covenant of good faith and fair dealing that may be found implicit in this Restricted Stock Unit Agreement or the Plan shall: (i) confer upon you any right to continue in the employ of, or affiliation with, the Company or an Affiliate; (ii) constitute any promise or commitment by the Company or an Affiliate regarding the fact or nature of future positions, future work assignments, future compensation or any other term or condition of employment or affiliation; (iii) confer any right or benefit under this Restricted Stock Unit Agreement or the Plan unless such right or benefit has specifically accrued under the terms of this Agreement or Plan; or (iv) deprive the Company of the right to terminate you at will and without regard to any future vesting opportunity that you may have.

(b) By accepting this Award, you acknowledge and agree that the right to a number of shares of Series BB Preferred Stock is earned only by service as a member of the Board and that the Company has the right to reorganize, sell, spin-out or otherwise restructure

one or more of its businesses or Affiliates at any time or from time to time, as it deems appropriate (a “reorganization”). You further acknowledge and agree that such a reorganization could result in the termination of your termination from the Board. You further acknowledge and agree that this Restricted Stock Unit Agreement, the Plan, the transactions contemplated hereunder and the vesting schedule set forth herein or any covenant of good faith and fair dealing that may be found implicit in any of them do not constitute an express or implied promise of continued engagement for the term of this Agreement, for any period, or at all, and shall not interfere in any way with your right or the Company’s right to terminate your service at any time, with or without cause and with or without notice.

10. W ITHHOLDING O BLIGATIONS .

(a) On or before the time you receive a distribution of the shares subject to your Award, or at any time thereafter as requested by the Company, you hereby authorize any required withholding from the Series BB Preferred Stock issuable to you and/or otherwise agree to make adequate provision in cash for any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company or any Affiliate which arise in connection with your Award (the “ Withholding Taxes ”). Additionally, the Company may, in its sole discretion, satisfy all or any portion of the Withholding Taxes obligation relating to your Award by any of the following means or by a combination of such means: (i) withholding from any compensation otherwise payable to you by the Company; (ii) causing you to tender a cash payment; or (iii) withholding shares of Series BB Preferred Stock from the shares of Series BB Preferred Stock issued or otherwise issuable to you in connection with the Award with a Fair Market Value (measured as of the date shares of Series BB Preferred Stock are issued to pursuant to Section 6) equal to the amount of such Withholding Taxes; provided, however, that the number of such shares of Series BB Preferred Stock so withheld shall not exceed the amount necessary to satisfy the Company’s required tax withholding obligations using the minimum statutory withholding rates for federal, state, local and foreign tax purposes, including payroll taxes, that are applicable to supplemental taxable income.

(b) Unless the tax withholding obligations of the Company and/or any Affiliate are satisfied, the Company shall have no obligation to deliver to you any Series BB Preferred Stock.

(c) In the event the Company’s obligation to withhold arises prior to the delivery to you of Series BB Preferred Stock or it is determined after the delivery of Series BB Preferred Stock to you that the amount of the Company’s withholding obligation was greater than the amount withheld by the Company, you agree to indemnify and hold the Company harmless from any failure by the Company to withhold the proper amount.

11. U NSECURED O BLIGATION . Your Award is unfunded, and as a holder of a vested Award, you shall be considered an unsecured creditor of the Company with respect to the Company’s obligation, if any, to issue shares pursuant to this Agreement. You shall not have voting or any other rights as a stockholder of the Company with respect to the shares to be issued pursuant to this Agreement until such shares are issued to you pursuant to Section 6 of this Agreement. Upon such issuance, you will obtain full voting and other rights as a stockholder of the Company. Nothing contained in this Agreement, and no action taken pursuant to its provisions, shall create or be construed to create a trust of any kind or a fiduciary relationship between you and the Company or any other person.

12. O THER D OCUMENTS . You hereby acknowledge receipt or the right to receive a document providing the information required by Rule 428(b)(1) promulgated under the Securities Act, which includes the Plan prospectus. In addition, you acknowledge receipt of the Company’s policy permitting officers and directors to sell shares only during certain “window” periods and the Company’s insider trading policy, in effect from time to time.

13. N OTICES . Any notices provided for in your Award or the Plan shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the last address you provided to the Company. Notwithstanding the foregoing, the Company may, in its sole discretion, decide to deliver any documents related to participation in the Plan and this Award by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consents to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

14. M ISCELLANEOUS .

(a) The rights and obligations of the Company under your Award shall be transferable to any one or more persons or entities, and all covenants and agreements hereunder shall inure to the benefit of, and be enforceable by the Company’s successors and assigns. Your rights and obligations under your Award may only be assigned with the prior written consent of the Company.

(b) You agree upon request to execute any further documents or instruments necessary or desirable in the sole determination of the Company to carry out the purposes or intent of your Award.

(c) You acknowledge and agree that you have reviewed your Award in its entirety, have had an opportunity to obtain the advice of counsel prior to executing and accepting your Award, and fully understand all provisions of your Award.

(d) This Agreement shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.

(e) All obligations of the Company under the Plan and this Agreement shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company.

15. G OVERNING P LAN D OCUMENT . Your Award is subject to all the provisions of the Plan, the provisions of which are hereby made a part of your Award, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be

promulgated and adopted pursuant to the Plan. Except as expressly provided herein, in the event of any conflict between the provisions of your Award and those of the Plan, the provisions of the Plan shall control.

16. S EVERABILITY . If all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.

17. E FFECT ON O THER E MPLOYEE B ENEFIT P LANS . The value of the Award subject to this Agreement shall not be included as compensation, earnings, salaries, or other similar terms used when calculating the Employee’s benefits under any employee benefit plan sponsored by the Company or any Affiliate, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Affiliate’s employee benefit plans.

18. C HOICE OF L AW . The interpretation, performance and enforcement of this Agreement will be governed by the law of the state of California without regard to such state’s conflicts of laws rules.

19. A MENDMENT . This Agreement may not be modified, amended or terminated except by an instrument in writing, signed by you and by a duly authorized representative of the Company. Notwithstanding the foregoing, this Agreement may be amended solely by the Board by a writing which specifically states that it is amending this Agreement, so long as a copy of such amendment is delivered to you, and provided that no such amendment adversely affecting your rights hereunder may be made without your written consent. Without limiting the foregoing, the Board reserves the right to change, by written notice to you, the provisions of this Agreement in any way it may deem necessary or advisable to carry out the purpose of the grant as a result of any change in applicable laws or regulations or any future law, regulation, ruling, or judicial decision, provided that any such change shall be applicable only to rights relating to that portion of the Award which is then subject to restrictions as provided herein.

Exhibit 99.4

B IOCEPT , I NC .

R ESTRICTED S TOCK U NIT G RANT N OTICE

(2007 E QUITY I NCENTIVE P LAN )


Participant:		David F. Hale
Date of Grant:		March 10, 2011
Vesting Commencement Date:		January 1, 2011
Number of Shares Subject to Award:		428,597
Consideration:		Participant’s Services


Vesting Schedule :		No shares subject to the Award shall vest unless a Change in Control or Initial Public Offering (as defined below) occurs within 10 years of the Vesting Commencement Date (the “ *Vesting Event* ”). Upon a Vesting Event, the Participant shall vest in a number of shares underlying the Award determined by multiplying the number of shares subject to the Award by a fraction (not to exceed 1), with the numerator being the number of months the Participant has provided Continuous Service to the Company, and the denominator being 48; provided, that in the event Participant’s Continuous Service is involuntarily terminated by the Company or its shareholders without Cause prior to the Vesting Event and Participant furnished to the Company an effective waiver and release of claims in a form specified by the Company and consistent with standard practices, such numerator shall be 48. In addition, if a Vesting Event occurs during the Participant’s Continuous Service, but before the Participant has provided 48 consecutive months of Continuous Service, then the Award shall vest in full. An Initial Public Offering means the effectiveness of an underwriting agreement between the Company and the underwriter(s) managing the initial public offering of the Common Stock, pursuant to which the Common Stock is priced for the initial public offering.

Issuance Schedule:		The shares will be issued in accordance with the issuance schedule set forth in Section 6 of the Restricted Stock Unit Agreement.


B IOCEPT , I NC .		P ARTICIPANT :

By:	/s/ M. Faye Wilson	/s/ David F. Hale
	Signature		Signature



Title:						Date:

Date:

A TTACHMENTS : Restricted Stock Unit Agreement, 2007 Equity Incentive Plan

B IOCEPT , I NC .

2007 E QUITY I NCENTIVE P LAN

R ESTRICTED S TOCK U NIT A GREEMENT

2. V ESTING .

(a) In General. Subject to the limitations contained herein, your Award will vest, if at all, in accordance with the vesting schedule provided in the Grant Notice.

3. N UMBER OF S HARES .

(a) The number of shares subject to your Award may be adjusted from time to time for Capitalization Adjustments, as provided in the Plan.

6. D ATE OF I SSUANCE .

(a) The Company will deliver to you a number of shares of the Company’s Series BB Preferred Stock equal to the number of vested shares subject to your Award, including

(c) Notwithstanding the foregoing, the following provisions shall apply if you elect to defer delivery of the shares subject to your Award beyond the vesting date in accordance with this Section:

8. R ESTRICTIVE L EGENDS . The shares issued under your Award shall be endorsed with appropriate legends determined by the Company.

9. A WARD NOT A S ERVICE C ONTRACT .

10. W ITHHOLDING O BLIGATIONS .

(b) Unless the tax withholding obligations of the Company and/or any Affiliate are satisfied, the Company shall have no obligation to deliver to you any Series BB Preferred Stock.

14. M ISCELLANEOUS .

(b) You agree upon request to execute any further documents or instruments necessary or desirable in the sole determination of the Company to carry out the purposes or intent of your Award.

(d) This Agreement shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.