Exhibit 10.1


 





ACKNOWLEDGEMENT
AND AGREEMENT


 


This
ACKNOWLEDGEMENT AND AGREEMENT (the “Agreement”) is effective as of May 7, 2020, by and between, Oncocyte Corporation
(the “Company”) and Ronnie Andrews, an individual (“Participant”), with reference to the
following facts:


 


RECITALS


 


WHEREAS,
the Company is facing, and is expected to continue to face, economic hardship due to the COVID-19 pandemic;


 


WHEREAS,
Participant and the Company have mutually agreed to defer some or all of Participant’s compensation to a future date upon
the terms and conditions hereinafter set forth.


 


NOW,
THEREFORE, in consideration of the mutual promises and the representations and warranties contained in this Agreement, incorporating
the recitals above, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the
parties, the parties hereby covenant and agree as follows:


 


AGREEMENT


 


1.
Base Compensation Deferral. Notwithstanding any provision of Participant’s employment agreement or service agreement
with the Company, Participant hereby agrees to defer (“Deferral”) Thirty Percent (30%) of Participant’s
base salary (or $5,538.46/per pay period) for each of the Company’s regular payroll periods between May 11, 2020 and December
4, 2020 and the entire Cash Bonus Payment, as defined below (total deferred amount, “Deferred Compensation”
and period between May 11, 2020 and December 4, 2020, the “Short-Term Deferral Period”). The Company shall
pay to Participant the total value of Participant’s total Deferred Compensation, plus interest (“Interest”)
accruing (from the date Deferred Compensation was otherwise due to be paid until the date it is actually paid) at an annual rate
of Ten Percent (10%), except for Cash Bonus Payment deferral, which shall accrue interest at a rate of Six Percent (6%) (collectively,
the “Deferral Amount”), no later than the Final Payment Date, as defined below. Upon the termination of the
Short-Term Deferral Period, Participant’s base salary shall be reinstated.


 


2.
Payment Method. As payment of the Deferral Amount, Company shall pay at least Forty Percent (40%) of such Deferral Amount
(which shall be deemed the portion of the Deferral Amount that includes accrued Interest) in cash. The remaining Sixty Percent
(60%) of the Deferral Amount may be paid to Participant in (i) cash; (ii) shares of the Company’s common stock; or (iii)
some combination thereof, as requested by the Participant at the time of payment and approved by the Compensation Committee of
the Company’s Board of Directors (the “Committee”). For the purposes of any portion of the Deferral Amount
which is paid in shares of the Company’s common stock, the value of the Company’s shares of common stock on the payment
date shall be their Fair Market Value, as determined under the Company’s 2018 Equity Incentive Plan (the “Plan”).


 




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3.
No Effect On Payments For Ancillary Services. Participant and the Company acknowledge and agree that to the extent any
compensation or benefit (including any bonus entitlement and severance entitlement) is calculated by reference to Participant’s
base salary (other than Company’s contributions to its Oncocyte 401(k) plan), such compensation or benefit shall be calculated
without taking into account the Deferral (i.e., taking into account Participant’s original base salary. Notwithstanding
anything to the contrary in any Participant’s employment agreement or service agreement, as applicable, Participant acknowledges
and agrees that Good Reason (or any similar term, in each case, as such term is defined in the Participant’s employment
agreement or service agreement, as applicable, or any other agreement or arrangement by and between the Participant and the Company
or any of its affiliates) shall not be triggered, and Participant shall not have the right to terminate Participant’s service
relationship with the Company for Good Reason, solely as a result of the occurrence of the Deferral. In addition, Deferral shall
not give rise to any claim by Participant for constructive termination.


 


4.
Final Payment Date. The Deferral Amount shall be paid to Participant on such date as determined by the Committee, provided
that it shall be paid no later than (i) December 31, 2020, (ii) Participant’s service with the Company is terminated by
the Company without cause; or (iii) two business days following the Company undergoing a Change of Control, as defined in the
Plan (the earlier of such events, a “Final Payment Date”).


 


5.
Section 409A. The parties intend that this Agreement, as well as the payments and benefits under this Agreement, shall
be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) or, if not so
exempt, shall be treated in a manner which complies with the requirements of Section 409A, and the parties intend that this Agreement
be construed and administered in accordance with such intention. In the event that the parties determine that the terms of this
Agreement need to be modified in order to comply with Section 409A, the parties shall cooperate reasonably to do so in a manner
intended to best preserve the economic benefits of this Agreement. The Company makes no representation that any or all of the
payments or benefits described in this Agreement will be exempt from or comply with Section 409A and makes no undertaking to preclude
Section 409A from applying to any such payment. Participant shall be solely responsible for the payment of any taxes and penalties
incurred under Section 409A.


 


6.
Amendment. This Agreement cannot be changed, waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge or termination is sought. The execution of any amendment
to this Agreement by all parties hereto shall establish that such execution was made in accordance with any applicable requirements
for approval.


 


7.
Entire Agreement. This Agreement, contains the entire agreement of the parties and supersedes any prior written or oral
agreements between them respecting the subject matter contained in the Agreement.


 


8.
Bonus. Reference is made to Service’s Provider’s Employment Agreement with the Company, dated June 4, 2019,
as amended (“Employment Agreement”). As is provided in Section 4(b) of the Employment Agreement, the payment
of a bonus for any year is discretionary, the bonus is not earned until paid, may be paid in any form selected by the Board of
Directors or the Compensation Committee of the Company, and Participant must be employed on the payment date to be eligible to
earn the bonus. Participant’s bonus for 2019, shall be earned and paid as follows: 1. Participant shall receive $186,240
as part of Deferred Compensation (“Cash Bonus Payment”) subject to the terms and conditions of this Agreement (for
purposes of Interest accrual, Cash Bonus Payment shall be deemed otherwise due to be paid on June 19, 2020 and shall be deemed
vested as of such date); and (2) on or about the date hereof, Participant will be granted 106,221 (equivalent to $279,360) restricted
stock units pursuant to the terms and subject to the conditions set forth in the Restricted Stock Unit Agreement, substantially
in the form attached hereto as Exhibit A, and the Company’s 2018 Equity Incentive Plan. Participant acknowledges and agrees
that he is not entitled to receive any other bonus payments for 2019 under Section 4(b) of the Employment Agreement.


 


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IN
WITNESS WHEREOF, the parties have executed this Participant Service Agreement to be effective as of the date first set forth above.


 


COMPANY:


 


Oncocyte
Corporation


 


	 	By:	 	 
	 	Name:	 	 
	 	Its:	 	 


 


PARTICIPANT:


 


	 	 
	Ronnie
    Andrews	 


 


[Signature
Page to ACKNOWLEDGEMENT AND AGREEMENT]