On March 20, 2020, OncoCyte Corporation (the "Company") reported that it has entered into an equity distribution agreement (the "Agreement") with Piper Sandler & Co. (the "Agent") to create an at-the-market equity program under which it may sell up to an aggregate of $25,000,000 of shares of the Company’s common stock (the "Shares") from time to time through the Agent, as sales agent (the "ATM Offering") (Filing, 8-K, Oncocyte, MAR 20, 2020, View Source [SID1234555727]).
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Under the Agreement, the Company will set the parameters for the sale of Shares, including the number of Shares to be issued, the time period during which sales are requested to be made, limitations on the number of Shares that may be sold in any one trading day and any minimum price below which sales may not be made. Sales of the Shares, if any, under the Agreement may be made in transactions that are deemed to be "at-the-market equity offerings" as defined in Rule 415 under the Securities Act of 1933, as amended. The Company will pay the Agent a commission equal to up to 3.0% of the gross proceeds of any Shares sold through the Agent under the Agreement. The Agreement contains customary representations, warranties and agreements by the Company, indemnification obligations of the Company and the Agent, other obligations of the parties and termination provisions. The Company has no obligation to sell any of the Shares, and may at any time suspend offers under the Agreement.
The Shares will be issued pursuant to the Company’s previously filed Registration Statement on Form S-3 (File No. 333-231980) that was declared effective on June 18, 2019. On March 20, 2020, the Company filed a prospectus supplement relating to the ATM Offering with the Securities and Exchange Commission.
The Agreement is filed as Exhibit 10.1 to this Report. The description of the Agreement does not purport to be complete and is qualified in its entirety by reference to the Agreement filed herewith as an exhibit to this Report.
Attached as Exhibit 5.1 to this Report is the opinion of Ellenoff Grossman & Schole LLP relating to the legality of the issuance and sale of the shares.