As filed with the Securities and Exchange Commission on February 5, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OncoCyte Corporation
(Exact name of registrant as specified in its charter)
| California | 1-37648 | 27-1041563 | ||
(State or jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(IRS Employer Identification No.) |
15 Cushing
Irvine, California 92618
(949) 409-7600
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Mitchell Levine
Chief Financial Officer
OncoCyte Corporation
15 Cushing
Irvine, California 92618
(949) 409-7600
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Richard S. Soroko, Esq. Thompson Welch Soroko & Gilbert LLP 3950 Civic Center Drive Suite 300 San Rafael, California 94903 Telephone: (415) 448-5000 |
Robert Charron, Esq. Sarah E. Williams, Esq. Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, New York 10105 Telephone: (212) 370-1300 |
Michael D. Maline, Esq. DLA
Piper LLP (US) |
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☒ 333-231980
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
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. (Check one):
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | 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 Each Class of Securities to be Registered |
Proposed Maximum Aggregate Offering Price (1) |
Amount of Registration Fee (2) |
||||||
| Common Stock, no par value | $ | 1,500,000 | $ | 163.65 | ||||
| (1) | The registrant previously registered the offering, issuance and sale of securities up to $100,000,000 under the Registration Statement on Form S-3 (File No. 333-231980), which was filed by the registrant on June 6, 2019 and declared effective on June 18, 2019 (the “Related Registration Statement”) . In accordance with Rule 462(b) under the Securities Act of 1933, as amended, an additional amount of securities having a proposed maximum aggregate offering price of $1,500,000 is hereby registered, representing no more than 20% of the maximum aggregate offering price of securities that remain available for issuance under the Related Registration Statement. |
| (2) | Calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended. |
The Registration Statement shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462 (b) under the Securities Act of 1933, as amended.
EXPLANATORY NOTE AND INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This registration statement is being filed with respect to the registration of additional shares of common stock, no par value, of OncoCyte Corporation, a California corporation, pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, representing an increase in the maximum aggregate offering price of $1,500,000. The contents of the earlier registration statement on Form S-3 (File No. 333-231980), which was declared effective by the Securities and Exchange Commission on June 18, 2019, including all exhibits thereto and all information incorporated by reference therein, are incorporated in this registration statement by reference.
The required opinions and consents are listed on the exhibit index and filed with this filing.
EXHIBIT INDEX
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Irvine, California, on February 4, 2021.
| ONCOCYTE CORPORATION | ||
| By: | /s/ Ronald Andrews | |
Ronald Andrews President and Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Ronald Andrews | Chief Executive Officer, President, and Director | February 4, 2021 | ||
| Ronald Andrews | (Principal Executive Officer) | |||
| /s/ Mitchell Levine | Chief Financial Officer and Treasurer | February 4, 2021 | ||
| Mitchell Levine | (Principal Financial and Accounting Officer) | |||
| /s/ Andrew Arno | Director | February 4, 2021 | ||
| Andrew Arno | ||||
| Director | February , 2021 | |||
| Jennifer Levin Carter | ||||
| /s/ Melinda Griffith | Director | February 4, 2021 | ||
| Melinda Griffith | ||||
| Director | February , 2021 | |||
| Alfred D. Kingsley | ||||
| /s/ Andrew Last | Director | February 4, 2021 | ||
| Andrew Last | ||||
| /s/ Cavan Redmond | Director | February 4, 2021 | ||
| Cavan Redmond |
Exhibit 5.1
LAW OFFICES
THOMPSON WELCH SOROKO & GILBERT LLP
450 PACIFIC AVENUE, SUITE 200
SAN FRANCISCO, CA 94133-4645
(415) 262-1200
| FACSIMILE | |
| (415) 262-1212 |
February 4, 2021
Board of Directors
OncoCyte Corporation
15 Cushing
Irvine, California 92618
| Re: | Registration Statement on Form S-3 Pursuant to Rule 462(b) |
Ladies/Gentlemen:
We have acted as counsel to OncoCyte Corporation (the “Company”), and we are providing you with the following opinion, in connection with the filing of a Registration Statement on Form S-3 (the “Registration Statement”) pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”), to register the offer and sale of up to $1,500,000 of common stock, no par value, of the Company (the “Shares”) under the Securities Act. The Company previously registered the offering, issuance and sale of securities up to $100,000,000 under a Registration Statement on Form S-3 (File No. 333-231980), which was declared effective on June 18, 2019 (the “Related Registration Statement”). The Registration Statement is being filed to register an additional amount of common stock having a proposed maximum aggregate offering price representing not more than 20% of the maximum aggregate offering price of securities that remain available for issuance under the Related Registration Statement. The content of the Related Registration Statement, including all exhibits thereto and all information incorporated by reference therein, is incorporated by reference into the Registration Statement.
The Shares will be offered and sold pursuant to a prospectus dated June 18, 2019 (the “Prospectus”) and a prospectus supplement (the “Prospectus Supplement”).
For purposes of rendering the opinion expressed below we have made such investigation of law as we have deemed appropriate, and we have examined (a) the Articles of Incorporation, as amended, and Amended and Restated Bylaws of the Company, each as amended to date and as previously filed with the Securities and Exchange Commission, (b) the Prospectus, (c) the Prospectus Supplement, (d) a certificate from the office of the California Secretary State as to the good standing of the Company as a California corporation, and (e) such other documents as we deemed appropriate. As to questions of fact material to this opinion, we have relied upon certain representations of certain officers of the Company, including a certificate of an officer of the Company with respect to certain proceedings of the Board of Directors and a committee of the Board of Directors of the Company authorizing the offer and sale of the Shares.
February 4, 2021
Page 2
We have further assumed that (i) each document submitted to us is accurate and complete; (ii) each such document that is an original is authentic; (iii) each such document that is a copy conforms to an authentic original; and (iv) all signatures on each such document are genuine. We have further assumed the legal capacity of natural persons, and we have assumed that each party to the documents we have examined or relied on has the legal capacity or authority and has satisfied all legal requirements that are applicable to that party to the extent necessary to make such documents enforceable against that party, and (v) that the Shares will be sold at a price authorized by the Company’s Board of Directors or a duly authorized committee thereof. We have not verified any of these assumptions.
Our opinion set forth below is limited to the California Corporations Code and applicable provisions of the California Constitution and reported judicial decisions interpreting those laws. We are not opining on, and we assume no responsibility for, the applicability to or effect on any of the matters covered herein of (a) any other laws including but not limited to the Securities Act; (b) the laws of any other jurisdiction; or (c) the rules or regulations of any governmental agency or authority. Further, we render no opinion as to the completeness or correctness of the information contained in the Registration Statement, the Related Registration Statement, the Prospectus, the Prospectus Supplement, or any document incorporated by reference therein.
Based upon and subject to the foregoing, we are of the opinion that the Shares, when sold and issued against payment therefor as described in the Registration Statement and the Prospectus Supplement, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and the reference to us under the caption “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations promulgated thereunder. This opinion is expressed as of the date hereof and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
| 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 Prospectus constituting a part of this Registration Statement on Form S-3, of our report dated March 25, 2020 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, 2019.
We also consent to the reference to us under the caption “Experts” in the Prospectus.
| /s/ OUM & CO. LLP | |
| San Francisco, California | |
| February 4, 2021 |