Exhibit
10.1


 


CONFIDENTIAL
SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS


 


This
Confidential Separation Agreement and General Release of All Claims, dated December 1, 2022 (the “Agreement”), is
made pursuant to that certain Change in Control Severance Agreement effective as of March 1, 2020 (the “Severance Agreement”)
entered into by and between Ronald Andrews (“Employee”) on the one hand, and Oncocyte Corporation (the “Company”),
on the other. This Agreement is entered into in consideration for and as condition precedent to the Company providing separation benefits
to Employee pursuant to the Severance Agreement. It is understood and agreed that the Company is not otherwise obligated to provide such
benefits under the terms of the Severance Agreement and that the Company is doing so as a direct result of Employee’s willingness
to agree to the terms hereof. Collectively, Employee and the Company shall be referred to as the “Parties.”


 


1.
Employee was formerly employed by the Company. Employee’s employment with the Company ended effective December 1, 2022 (the “Termination
Date”).


 


2.
The purpose of this Agreement is to resolve any and all disputes or claims that Employee may have relating to Employee’s employment
with the Company, and the termination thereof (the “Disputes”). The parties desire to resolve the above-referenced
Disputes, and all issues raised by the Disputes, without the further expenditure of time or the expense of contested litigation. Additionally,
the Parties desire to resolve any known or unknown claims that Employee may have as more fully set forth below. For these reasons, they
have entered into this Agreement.


 


3.
Employee acknowledges and agrees that Employee has received all wages due to Employee through the Termination Date, including but not
limited to all accrued but unused vacation, bonuses, commissions, options, benefits, and monies owed by the Company to Employee. Employee
further agrees and acknowledges that Employee has been fully paid and reimbursed for any and all business expenses which Employee incurred
during his/her employment with the Company.


 


4.
The Company expressly denies any violation of any federal, state or local statute, ordinance, rule, regulation, policy, order or other
law. The Company also expressly denies any liability to Employee. Nothing contained herein is to be construed as an admission of liability
on the part of the Company hereby released, by whom liability is expressly denied. accordingly, while this Agreement resolves all issues
referenced herein, it does not constitute an adjudication or finding on the merits of the allegations in the disputes and it is not,
and shall not be construed as, an admission by the Company of any violation of federal, state or local statute, ordinance, rule, regulation,
policy, order or other law, or of any liability alleged in the disputes.


 




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5.
In consideration of and in return for the promises and covenants undertaken by the Company and Employee herein and the releases given
by Employee herein, and in exchange for Employee timely executing (and not revoking) this Agreement:


 


a.
In addition to any compensation otherwise due Employee for actual work performed up to and including the Termination Date, Employee shall
receive the following benefits:


 


(i)
A payment in the total amount of Five Hundred Thousand Dollars and Zero Cents ($500,000) (minus applicable taxes, withholdings and deductions),
payable in substantially equal installments over the twelve (12) month period following the Termination Date in accordance with the Company’s
regular payroll practices; provided, however, that the first payment shall be made on the first regularly scheduled payroll date on or
following the thirtieth (30th) day following the Termination Date and shall include payments of any amounts that would otherwise be due
prior thereto;


 


(ii)
A payment for twelve (12) months of premium costs of group health plan continuation coverage under the Consolidated Omnibus Budget Reconciliation
Act in the total amount of $40,128 (minus applicable taxes, withholdings and deductions), payable in a lump sum payment on the first
regularly scheduled payroll date on or following the thirtieth (30th) day following the Termination Date;


 


(iii)
Partial acceleration and vesting of Employee’s time-based unvested stock option and restricted stock unit awards that were granted
pursuant to the Company’s Amended and Restated 2018 Equity Incentive Plan, as amended from time to time (the “Equity Plan”)
and scheduled to vest based solely on the passage of time during the twelve (12) month period following the Termination Date; and


 


(iv)
(A) 281,250 unvested options, granted under the Equity Plan and Incentive Stock Option Agreement effective as of March 15, 2022, as amended
July 28, 2022, which were granted to Employee in respect of Employee’s 2022 annual bonus (the “Bonus Award”),
shall vest as of the Termination Date and shall be exercisable in accordance with the terms of the Equity Plan and Bonus Award, and the
remaining unvested stock options granted pursuant to the Bonus Award shall automatically be forfeited without consideration, (B) 200,000
unvested options, granted under the Equity Plan and Incentive Stock Option Agreement effective as of March 15, 2022, as amended May 13,
2022 (the “Option Award”), shall vest as of the Termination Date and shall be exercisable in accordance with the terms
and conditions of the Equity Plan and the Option Award, and (C) 250,000 unvested restricted stock units granted under the Equity Plan
and Restricted Stock Units Award Agreement effective March 15, 2022, as amended May 13, 2022 (the “RSU Award”) shall
vest as of the Termination Date and be settled in accordance with the terms of the Equity Plan and RSU Award, and the remaining unvested
restricted stock units granted under the RSU Award shall be automatically forfeited without consideration.


 


As
a condition to receiving and continuing to receive the payments and benefits under this Paragraph 5.a., Employee must (i) within but
not later than twenty-one (21) days after the Termination Date, execute (and not revoke) and deliver to the Company this Agreement and
(ii) remain in full compliance with this Agreement and the Surviving Provisions (as defined below). Employee shall not be entitled to
accrue any additional leave or other benefits subsequent to the Termination Date.


 


b.
Any tax liabilities resulting from or arising out of the benefits to Employee referred to above shall be the sole and exclusive responsibility
of Employee. Employee agrees to indemnify and hold the Company and the others released herein harmless from and for any tax liability
(including, but not limited to, assessments, interest, and penalties) imposed on the Company by any taxing authority on account of the
Company failing to withhold for tax purposes any amount from the benefits made as consideration of this Agreement.


 


c.
Employee acknowledges and agrees that (i) any equity granted pursuant to the Equity Plan that is unvested as of the Termination Date
(after giving effect to Paragraph 5.a.(iii) and (iv)), shall automatically be forfeited as of the Termination Date for no consideration
and (ii) any equity that is vested as of the Termination Date shall be subject to the terms and conditions of the Equity Plan and applicable
award agreement(s).


 




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6.
Except for any rights created by this Agreement, in consideration of and in return for the promises and covenants undertaken herein by
the Company, and for other good and valuable consideration, receipt of which is hereby acknowledged:


 


a.
Employee does hereby acknowledge full and complete satisfaction of and does hereby release, absolve and discharge the Company, and each
of its parents, subsidiaries, divisions, related companies and business concerns, past and present, as well as each of its partners,
trustees, directors, members, officers, agents, attorneys, servants and employees, past and present, and each of them (hereinafter collectively
referred to as “Releasees”) from any and all claims, demands, liens, agreements, contracts, covenants, actions, suits,
causes of action, grievances, wages, vacation payments, severance payments, obligations, commissions, overtime payments, debts, profit
sharing claims, expenses, damages, judgments, orders and liabilities of whatever kind or nature in law, equity or otherwise, whether
known or unknown to Employee which Employee now owns or holds or has at any time owned or held as against Releasees, or any of them,
including specifically but not exclusively and without limiting the generality of the foregoing, any and all claims, demands, grievances,
agreements, obligations and causes of action, known or unknown, suspected or unsuspected by Employee: (1) arising out of or in any way
connected with the Disputes; or (2) arising out of Employee’s employment (or termination thereof) with the Company (including,
but not limited to, under Employee’s Employment Agreement with the Company, dated as of June 4, 2019 (the “Employment
Agreement” and that certain compensation plan adopted by the Board of Directors of the Company (the “Board”)
on March 8, 2022 as referenced in the Company’s Form 8-K dated March 8, 2022); or (3) arising out of or in any way connected with
any claim, loss, damage or injury whatever, known or unknown, suspected or unsuspected, resulting from any act or omission by or on the
part of the Releasees, or any of them, committed or omitted on or before the Effective Date hereof. Additionally, Employee in any future
claims may not use against Releasees as evidence any acts or omissions by or on the part of the Releasees, or any of them, committed
or omitted on or before the Effective Date hereof, and no such future claims may be based on any such acts or omissions. Also without
limiting the generality of the foregoing, Employee specifically releases the Releasees from any claim for attorneys’ fees. EMPLOYEE
ALSO SPECIFICALLY AGREES AND ACKNOWLEDGES EMPLOYEE IS WAIVING ANY RIGHT TO RECOVERY BASED ON LOCAL, STATE OR FEDERAL EMPLOYMENT LAWS
OR REGULATIONS, OR ANY LOCAL, STATE, OR FEDERAL AGE, SEX, PREGNANCY, RACE, COLOR, NATIONAL ORIGIN, MARITAL STATUS, RELIGION, VETERAN
STATUS, DISABILITY, SEXUAL ORIENTATION, MEDICAL CONDITION OR OTHER ANTI-DISCRIMINATION LAWS, INCLUDING, WITHOUT LIMITATION, TITLE VII
OF THE CIVIL RIGHTS ACT OF 1964, THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE EQUAL PAY ACT, THE AMERICANS WITH DISABILITIES ACT, THE
FAMILY AND MEDICAL LEAVE ACT, THE EMPLOYEE RETIREMENT INCOME SECURITY ACT, THE WORKER ADJUSTMENT AND RETRAINING ACT, THE FAIR LABOR STANDARDS
ACT, AND ANY OTHER SECTION OF THE CALIFORNIA LABOR OR GOVERNMENT CODE, THE INDUSTRIAL WELFARE COMMISSION WAGE ORDERS, ALL AS AMENDED,
WHETHER SUCH CLAIM BE BASED UPON AN ACTION FILED BY EMPLOYEE OR BY A GOVERNMENTAL AGENCY. This release does not release claims that cannot
be released as a matter of law. Employee is not (i) waiving Employee’s right to file a charge, testify, assist, or cooperate with
the Equal Employment Opportunity Commission (EEOC), Department of Fair Employment and Housing (DFEH) or similar governmental agency,
(ii) waiving rights or claims that may arise after the date Employee signs this Agreement, or (iii) releasing claims for unemployment
compensation benefits, workers’ compensation benefits, those claims under the Fair Labor Standards Act which cannot be waived pre-litigation
without Department of Labor or court approval, health insurance benefits under the Consolidated Omnibus Budget Reconciliation Act (COBRA),
or claims with regard to vested benefits under a retirement plan governed by the Employee Retirement Income Security Act (ERISA).


 




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7.
Employee agrees and understands as follows: it is the intention of Employee in executing this instrument that it shall be effective as
a bar to each and every claim, demand, grievance and cause of action hereinabove specified. In furtherance of this intention, Employee
hereby expressly waives any and all rights and benefits conferred upon Employee by the provisions of section 1542 of the California Civil
Code (or any other similar state code) and expressly consents that this Agreement shall be given full force and effect according to each
and all of its express terms and provisions, including those relating to unknown and unsuspected claims, demands and causes of action,
if any, as well as those relating to any other claims, demands and causes of action hereinabove specified. Section 1542 provides:


 


A
general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor
at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the
debtor or released party.


 


Having
been so apprised, Employee nevertheless hereby voluntarily elects to and does waive the rights described in Civil Code section 1542 and
elects to assume all risks for claims that now exist in Employee’s favor, known or unknown, that are released under this Agreement.


 


8.
Employee acknowledges and agrees that (a) the following Sections of the Employment Agreement remain in full force and effect and will
continue to bind Employee following the Termination Date in accordance with their terms: Section 3 (Competitive Activities), Section
4 (Inventions/Intellectual Property/Confidential Information), Section 6 (Turnover of Property and Documents on Termination, Section
7 (Resignation as a Director on Termination of Employment), Section 8 (Arbitration), Section 9 (Severability), Section 10 (Agreement
Read and Understood), Section 11 (Complete Agreement, Modification), Section 12 (Governing Law), Section 13 (Assignability), Section
14 (Survival), and Section 15 (Notices), (b) the entirety of the Employee Confidential Information and Inventions Assignment Agreement
by and between the Employee and the Company, effective July 1, 2019 shall remain in full force and effect and will continue to bind Employee
following the Termination Date in accordance with its terms, and (c) Section 3.6 (Covenants) of the Severance Agreement will continue
to bind Employee following the Termination Date in accordance with its term (collectively, all of the foregoing, the “Surviving
Provisions”). Any disputes arising under this Agreement, under the Surviving Provisions, or otherwise arising between Employee,
on the one hand, and any of the Releasees, on the other hand, shall be resolved in accordance with the dispute resolution terms provided
in Sections 8 of the Employment Agreement.


 


9.
Employee acknowledges and agrees that as of Employee’s Termination Date Employee will automatically be deemed to have resigned
from the Board and from any and all other positions and/or titles with the Company and agrees to execute any and all documentation the
Company requests to effectuate the foregoing.


 


10.
In the event a government agency files or pursues a charge or complaint relating to Employee’s employment with the Company and/or
the disputes, Employee agrees not to accept any monetary or other benefits arising out of the charge or complaint.


 




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11.
Employee agrees that Employee will not, whether in private or in public, whether orally or in writing, directly or indirectly, in public
or in private, make, publish, encourage, ratify, or authorize, or aid, assist, encourage, or direct any other person or entity in making
or publishing, any statements that in any way (i) defame, malign, disparage, or impugn the character, integrity, or ethics of the Releasees
(ii) portray any of the Releasees in a negative light, or (iii) damage the image or reputation of any of the Releasees. For avoidance
of doubt, nothing in this Paragraph 11 shall be construed in a manner that would violate any law. The Company agrees that it will instruct
its senior executives and board members not to make or publish negative or disparaging remarks that in any way relate to Employee. Nothing
in this Agreement prevents Employee from discussing or disclosing information about unlawful acts in the workplace, such as harassment
or discrimination or any other conduct that Employee has reason to believe is unlawful.


 


12.
If any provision of this Agreement or application thereof is held invalid, the invalidity shall not affect other provisions or applications
of the Agreement which can be given effect without the invalid provision or application. To this end, the provisions of this Agreement
are severable.


 


13.
Employee agrees and understands that this Agreement may be treated as a complete defense to any legal, equitable, or administrative action
that may be brought, instituted, or taken by Employee, or on Employee’s behalf, against the Company or the Releasees, and shall
forever be a complete bar to the commencement or prosecution of any claim, demand, lawsuit, charge, or other legal proceeding of any
kind against the Company and the Releasees.


 


14.
This Agreement and all covenants and releases set forth herein shall be binding upon and shall inure to the benefit of the respective
Parties hereto, their legal successors, heirs, assigns, partners, representatives, parent companies, subsidiary companies, agents, attorneys,
officers, employees, directors and stockholders.


 


15.
The Parties hereto acknowledge each has read this Agreement, that each fully understands its rights, privileges and duties under the
Agreement, that each has had an opportunity to consult with an attorney of its choice and that each enters this Agreement freely and
voluntarily.


 


16.
This Agreement may not be released, discharged, abandoned, changed or modified in any manner, except by an instrument in writing signed
by Employee and an officer of the Company. The failure of any party to enforce at any time any of the provisions of this Agreement shall
in no way be construed as a waiver of any such provision, nor in any way to affect the validity of this Agreement or any part thereof
or the right of any party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held
to be a waiver of any other or subsequent breach.


 


17.
This Agreement and the provisions contained herein shall not be construed or interpreted for or against any party hereto because that
party drafted or caused that party’s legal representative to draft any of its provisions.


 


18.
Employee acknowledges Employee may hereafter discover facts different from, or in addition to, those Employee now knows or believes to
be true with respect to the claims, demands, liens, agreements, contracts, covenants, actions, suits, causes of action, wages, obligations,
debts, expenses, damages, judgments, orders and liabilities herein released, and agrees the release herein shall be and remain in effect
in all respects as a complete and general release as to all matters released herein, notwithstanding any such different or additional
facts.


 


19.
The undersigned each acknowledge and represent that no promise or representation not contained in this Agreement has been made to them
and acknowledge and represent that this Agreement and the Severance Agreement contains the entire understanding between the parties and
contains all terms and conditions pertaining to the compromise and settlement of the subjects referenced herein. The undersigned further
acknowledge that the terms of this Agreement are contractual and not a mere recital.


 




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20.
Employee expressly acknowledges, understands and agrees that this Agreement includes a release covering all legal rights or claims under
the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 626, as amended), and all other federal, state, and local laws regarding
age discrimination, whether those claims are presently known to Employee or hereafter discovered. The terms and conditions of Paragraphs
20 through 22 apply to and are part of the waiver and release of ADEA claims under this Agreement. Company hereby advises Employee in
writing to discuss this Agreement with an attorney before signing. Employee acknowledges the Company has provided Employee at least twenty-one
(21) days within which to review and consider this Agreement before signing it. If Employee elects not to use all twenty-one
(21) days, then Employee knowingly and voluntarily waives any claim that Employee was not in fact given that period of time or did not
use the entire twenty-one (21) days to consult an attorney and/or consider this Agreement.


 


21.
Within three (3) calendar days of signing and dating this Agreement, Employee shall deliver the signed original of this
Agreement to the General Counsel of the Company. However, the Parties acknowledge and agree that Employee may revoke this Agreement for
up to seven (7) calendar days following Employee’s execution of this Agreement and that it shall not become effective
or enforceable until the revocation period has expired. The Parties further acknowledge and agree that such revocation must be in writing
addressed to and received by the General Counsel of the Company not later than midnight on the seventh day following execution of this
Agreement by Employee. If Employee fails to timely execute this Agreement or revokes this Agreement under this Paragraph, this Agreement
shall not be effective or enforceable and Employee will not receive the benefits described above, including those described in paragraph
5.


 


22.
If Employee does not revoke this Agreement in the timeframe specified at Paragraph 21 above, the Agreement shall be effective at 12:00:01
a.m. on the eighth day after it is signed by Employee (the “Effective Date”).


 


23.
This Agreement is intended to be exempt from the requirements of section 409A of the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated theretunder (“Section 409A”) and will be interpreted accordingly. While it is intended
that all payments and benefits provided under this Agreement to Employee or on behalf of Employee will be exempt from Section 409A, the
Company makes no representation or covenant to ensure that such payments and benefits are exempt from or compliant with Section 409A.
The Company will have no liability to Employee or any other party if a payment or benefit under this Agreement is challenged by any taxing
authority or is ultimately determined not to be exempt from or compliant with Section 409A. Each payment made under this Agreement will
be treated as a separate payment for purposes of Section 409A and the right to a series of installment payments under this Agreement
is to be treated as a right to a series of separate payments.


 


24.
This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original and such counterparts
shall together constitute one and the same Agreement.


 


25.
This Agreement shall be construed in accordance with, and be deemed governed by the laws of the State of California, without reference
to the conflict of law provisions thereof.


 


26.
The Company executes this Agreement for itself and on behalf of all other respective Releasees.


 


Employee
has read the foregoing Confidential Separation Agreement and General Release of All Claims, and Employee accepts and agrees to the provisions
contained therein and hereby executes it voluntarily and with full understanding of its consequences.


 


PLEASE
READ CAREFULLY. THIS AGREEMENT CONTAINS A GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.








 


	Dated:	12/02/2022	 	/s/
    Ronald Andrews
	 	 	 	Ronald
    A. Andrews
	 	 	 	 
	 	 	 	Oncocyte
    Corporation
	 	 	 	 
	Dated:	12/02/2022	 	/s/
    Andy Arno
	 	 	 	Name:	Andy
    Arno
	 	 	 	Title:	Chairman
    of the Board of Directors



 


Signature
Page to Confidential Separation Agreement and General Release of All Claims – Ronald A. Andrews


 






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