As filed with the Securities and Exchange Commission on June 30, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ONCOCYTE CORPORATION
( Exact name of Registrant as specified in charter )
| California | 27-1041563 | |
| (State or other jurisdiction of | (I.R.S. Employer | |
| incorporation or organization) | Identification Number) |
| 1010 Atlantic Avenue, Suite 102, Alameda, California | 94501 | |
| (Address of principal executive offices) | (Zip Code) |
2010 Stock Option Plan
(Full title of the plan)
RUSSELL SKIBSTED
Chief Financial Officer
OncoCyte Corporation
1010 Atlantic Avenue, Suite 102
Alameda, California 94501
(Name and address of agent for service)
(510) 775-0515
(Telephone number, including area code, of agent for service)
Copies of all communications, including all communications sent to the agent for service, should be sent to:
RICHARD S. SOROKO, ESQ.
Thompson, Welch, Soroko & Gilbert LLP
3950 Civic Center Drive, Suite 300
San Rafael, California 94903
Tel. (415) 448-5000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth 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 ☐ Emerging growth company ☒ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☒
CALCULATION OF REGISTRATION FEE
| Title of securities to be registered |
Amount
to be registered |
Proposed
maximum offering price per share(1) |
Proposed
maximum aggregate offering price(1) |
Amount of
registration fee(1) |
||||||||||||
| Common Stock, no par value(2) | 1,200,000 | $ | 5.18 | $ | 6,216,000 | $ | 720.43 | |||||||||
| Total Registration Fee | $ | 720.43 | ||||||||||||||
(1) Determined pursuant to Rule 457(c) and (h), including the exercise prices of certain options as to which the exercise price has been determined.
(2) Includes shares issuable directly or upon the exercise of the options. Pursuant to Rule 416, this Registration Statement also includes an indeterminate number of common shares that may be subject to issuance as a result of anti-dilution and other provisions of the Plan.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement on Form S-8 under the Securities Act of 1933, as amended, is being filed by OncoCyte Corporation (“OncoCyte”) pursuant to General Instruction E to Form S-8 to register an additional (i) 1,200,000 shares of OncoCyte common stock, no par value (“Shares”), and (ii) options to purchase 1,200,000 Shares, that may be granted or sold by OncoCyte under an amendment to the OncoCyte Employee Stock Option Plan.
The content of Registration Statement on Form S-8, File No. 333-208935, filed with the Securities and Exchange Commission (“SEC”) on January 11, 2016, is incorporated by reference.
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by the Registrant with the Securities and Exchange Commission (the “SEC”), are incorporated herein by reference:
| ● | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016 filed with the SEC on February 27, 2017; | |
| ● | Registrant’s Quarterly Report on Form 10-Q for the three month period ended March 31, 2017 filed with the SEC on April 28, 2017; | |
| ● | The Registrant’s Current Reports on Form 8-K filed with the SEC on February 24, March 3, March 6, March 10, and June 21, 2017; and | |
| ● | The description of the Registrant’s common stock contained in the Information Statement filed as Exhibit 99.1 to the Registration Statement on Form 10 filed with the SEC on December 29, 2015. |
In addition, all documents subsequently filed by Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act before the date of this offering is terminated or completed and prior to the filing of a post-effective amendment which indicates that all securities offered 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 part thereof from the date of filing of such documents; provided, however, that any information furnished under Items 2.02 or 7.01 of Form 8-K, including the related exhibits, or otherwise furnished rather than filed with the SEC, shall not be incorporated by reference herein, and any statement contained in any document or report incorporated by reference shall be deemed modified or superseded to the extent that a statement in any subsequently filed document or report incorporated by reference modifies or supersedes such statement.
Any statement contained in this Registration Statement or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained or incorporated by reference herein or in any subsequently filed document which is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
| II- 2 |
Item 8. Exhibits.
| Exhibit Numbers | Description | |
| 4.1 | 2010 Stock Option Plan, as amended(1) | |
| 4.2 |
2017 Amendment to 2010 Stock Option Plan* |
|
| 5.1 | Opinion of Counsel* | |
| 23.1 | Consent of OUM & Co. LLP * | |
| 23.2 | Consent of Counsel (Included in Exhibit 5.1) |
| (1) | Incorporated by reference to OncoCyte’s Registration Statement on Form 10 filed with the Securities and Exchange Commission on November 23, 2015. |
* Filed herewith.
| II- 3 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant 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 Alameda, State of California on June 30, 2017.
| ONCOCYTE CORPORATION | ||
| By: | /s/ William Annett | |
| Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ William Annett | Chief Executive Officer and Director | June 30, 2017 | ||
| WILLIAM ANNETT | (Principal Executive Officer) | |||
| /s/ Russell Skibsted | Chief Financial Officer | June 30, 2017 | ||
| RUSSELL SKIBSTED | (Principal Financial and Accounting Officer) | |||
| /s/ Andrew Arno | Director | June 30, 2017 | ||
| ANDREW ARNO | ||||
| /s/ Don Bailey | Director | June 30, 2017 | ||
| DON BAILEY | ||||
| /s/ Alfred D. Kingsley | Director | June 30, 2017 | ||
| ALFRED D. KINGSLEY | ||||
| Director | June 30, 2017 | |||
| ANDREW LAST | ||||
| /s/ Aditya Mohanty | Director | June 30, 2017 | ||
| ADITYA MOHANTY | ||||
| /s/ Cavan Redmond | Director | June 30, 2017 | ||
| CAVAN REDMOND |
| II- 4 |
EXHIBIT INDEX
| Exhibit Numbers | Description | |
| 4.1 | 2010 Stock Option Plan, as amended(1) | |
| 4.2 | 2017 Amendment to 2010 Stock Option Plan* | |
| 5.1 | Opinion of Counsel* | |
| 23.1 | Consent of OUM & Co. LLP * | |
| 23.2 | Consent of Counsel (Included in Exhibit 5.1 |
| (1) | Incorporated by reference to OncoCyte’s Registration Statement on Form 10 filed with the Securities and Exchange Commission on November 23, 2015. |
* Filed herewith.
| II- 5 |
Exhibit 4.2
2017 AMENDMENT TO
ONCOCYTE CORPORATION
2010 STOCK OPTION PLAN
Article I, Section 4 is amended to read as follows:
| 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 5,200,000, unless an adjustment is required in accordance with Article III.
LAW OFFICES
THOMPSON, WELCH, SOROKO & GILBERT LLP
3950 CIVIC CENTER DRIVE
SUITE 300
SAN RAFAEL, CA 94903
(415) 448-5000
FACSIMILE
(415) 448-5010
SAN FRANCISCO OFFICE
(415) 262-1200
June 30, 2017
Securities and Exchange Commission
100 F Street, NE
Washington, D.C. 20549
| Re: | OncoCyte, Corporation |
| Registration Statement on Form S-8 |
Ladies/Gentlemen:
We are counsel to OncoCyte, Corporation (“OncoCyte”), a California corporation, in connection with a registration statement on Form S-8 under the Securities Act of 1933, as amended (the “Registration Statement”), filed by OncoCyte to register 1,200,000 additional shares of OncoCyte common stock, no par value (“Shares”), that may be granted or sold by OncoCyte under OncoCyte’s Stock Option Plan (the “Plan”).
In rendering our opinion, we have relied upon, among other things, our examination of such documents and records of OncoCyte as have been provided to us, including but not limited to the Plan, as amended, and the Articles of Incorporation, as amended, and Bylaws, as amended, of OncoCyte. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity with the original of all documents submitted to us as copies.
Based upon the foregoing, and upon our consideration of such matters of law as we deemed relevant, we are of the opinion that when the Shares are issued pursuant to the Plan, whether as restricted stock sold or granted for services provided, or sold pursuant to the exercise of stock options, the Shares will be legally and validly issued and outstanding, fully paid and nonassessable.
The foregoing opinions are limited to the laws of the State of California and the Federal laws of the United States of America.
We assume no obligation to supplement, amend, or to otherwise update the opinions expressed above if any applicable laws change after the date of this opinion letter, or if we become aware of any facts that might change our opinions after the date of this opinion letter.
Securities and Exchange Commission
June 30, 2017
Page 2
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.
| Very truly yours, | |
| /s/ Thompson, Welch, Soroko & Gilbert LLP | |
| Thompson, Welch, Soroko & Gilbert LLP |
exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in the this Registration Statement on Form S-8 pertaining to the 2010 Stock Option Plan, as amended, of our report dated February 27, 2017, relating to the financial statements of OncoCyte Corporation appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2016.
/s/ OUM & CO. LLP
San Francisco, California
June 30, 2017