SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT

Exhibit 10.3

SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT

THIS SECOND AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into as of June 30, 2016 (the “Amendment Date”), by and among OXFORD FINANCE LLC, a Delaware limited liability company with an office located at 133 North Fairfax Street, Alexandria, Virginia 22314 (in its individual capacity, “Oxford”; and in its capacity as Collateral Agent, “Collateral Agent”), the Lenders listed on Schedule 1.1 to the Loan Agreement (as defined herein)  from time to time including Oxford in its capacity as a Lender (each a “Lender” and collectively, the “Lenders”) and BIOCEPT, INC., a Delaware corporation with offices located at 5810 Nancy Ridge Drive, San Diego, California  92121 ( “Borrower”).

WHEREAS, Collateral Agent, Borrower and Lenders party thereto from time to time have entered into that certain Loan and Security Agreement, dated as of April 30, 2014 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”) pursuant to which Lenders have provided to Borrower certain loans in accordance with the terms and conditions thereof; and

WHEREAS, Borrower, Lenders and Collateral Agent desire to amend certain provisions of the Loan Agreement as provided herein and subject to the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the premises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Borrower, Lenders and Collateral Agent hereby agree as follows:

Repayment.  Borrower shall make monthly payments of interest only commencing on the first (1^st) Payment Date following the Funding Date of each Term Loan, and continuing on the Payment Date of each successive month thereafter through and including the Payment Date immediately preceding the First Amortization Date.  Borrower agrees to pay, on the Funding Date of each Term Loan, any initial partial monthly interest payment otherwise due for the period between the Funding Date of such Term Loan and the first Payment Date thereof.  Commencing on the First Amortization Date, and continuing on the Payment Date of each month thereafter through and including June 1, 2016, Borrower shall make consecutive equal monthly payments of principal and interest, in arrears, to each Lender, as calculated by Collateral Agent (which calculations shall be deemed correct absent manifest error) based upon: (1) the amount of such Lender’s Term Loan, (2) the effective rate of interest, as determined in Section 2.3(a), and (3) a repayment schedule equal to thirty-six months.  Commencing on the Interest-Only Date, Borrower shall make monthly payments of interest only, and continuing on the Payment Date of each successive month thereafter through and including the Payment Date immediately preceding the Second Amortization Date.  Commencing on the Second Amortization Date, and continuing on the Payment Date of each month thereafter, Borrower shall make consecutive equal monthly payments of principal and interest, in arrears, to each Lender, as calculated by Collateral Agent (which calculations shall be deemed correct absent manifest error) based upon: (1) the then outstanding amount of such Lender’s Term Loan, (2) the effective rate of interest, as determined in Section 2.3(a), and (3) a repayment schedule equal to either (i) twenty-two months (if the Second Amortization Date is October 1, 2016) or (ii) nineteen months  (if the Second Amortization Date is January 1, 2017).  All unpaid principal and accrued and unpaid interest with respect to each Term Loan is due and payable in full on the Maturity Date of such Term Loan.  Each Term Loan may only be prepaid in accordance with Sections 2.2(c) and 2.2(d).

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(e)Second Amendment Fee.  Second Amendment Fee which shall be due and payable on the earlier of (i) the Maturity Date, (ii) the date on which when the then aggregate outstanding principal amount of the Term Loans becomes payable under Section 2.2(c) or (iii) the date on which the then aggregate outstanding principal amount of the Term Loans is paid by Borrower under Section 2.2(d). 

“Additional I/O Event” is the occurrence, after the Second Amendment Date and on or before September 30, 2016, of either (i) an Equity Event or (ii) the receipt by the Borrower of a signed letter of intent relating to a Sale of the Borrower, in form and substance satisfactory to Collateral Agent.

“Equity Event” is the receipt by Borrower of unrestricted net cash proceeds of not less than Seven Million Dollars ($7,000,000) from the issuance and sale by Borrower of its equity securities.

“First Amortization Date” is August 1, 2015.

“Interest-Only Date” is July 1, 2016.

“Sale of the Borrower” is any of the following: (a) a sale or other disposition by Borrower of all or substantially all of its assets; (b) a merger or consolidation of Borrower into or with another person or entity, where the holders of Borrower’s outstanding voting equity securities as of immediately prior to such merger or consolidation hold less than a majority of the issued and outstanding voting equity securities of the successor or surviving person or entity as of immediately following the consummation of such merger or consolidation; or (c) any sale, in a single transaction or series of related transactions, by the holders of Borrower’s outstanding voting equity securities, to one or more buyers, of such securities, where such holders do not, as of immediately following the consummation of such transaction(s), continue to hold at least a majority of Borrower’s issued and outstanding voting equity securities.

“Second Amendment Date” is June 30, 2016.

“Second Amendment Fee” is (i) Fifty Thousand Dollars ($50,000.00), if the Additional I/O Event does not occur or (ii) Seventy-Five Thousand Dollars ($75,000.00), if the Additional I/O Event occurs.

“Second Amortization Date” is (i) October 1, 2016, if the Additional I/O Event does not occur or (ii) if the Additional I/O Event occurs, January 1, 2017.

“Obligations” are all of Borrower’s obligations to pay when due any debts, principal, interest, Lenders’ Expenses, the Prepayment Fee, the Final Payment, the Second Amendment Fee, and other amounts Borrower owes the Lenders now or later, in connection with, related to, following, or arising from, out of or under, this Agreement or, the other Loan Documents (other than the Warrants or any equity instrument), or otherwise, and including interest accruing after Insolvency Proceedings begin (whether or not allowed) and debts, liabilities, or obligations of Borrower assigned to the Lenders and/or Collateral Agent, and the performance of Borrower’s duties under the Loan Documents (other than the Warrants or any equity instrument).

“Maturity Date” is July 1, 2018.

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“(e)Indebtedness consisting of capitalized lease obligations and purchase money Indebtedness, in each case incurred by Borrower or any of its Subsidiaries to finance the acquisition, repair, improvement or construction of fixed or capital assets of such person, provided that (i) the aggregate outstanding principal amount of all such Indebtedness does not exceed One Million Two Hundred Thousand Dollars ($1,200,000.00) at any time and (ii) the principal amount of such Indebtedness does not exceed the lower of the cost or fair market value of the property so acquired or built or of such repairs or improvements financed with such Indebtedness (each measured at the time of such acquisition, repair, improvement or construction is made);” 

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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Loan and Security Agreement to be executed as of the date first set forth above.

[Signature Page to Second Amendment to Loan and Security Agreement]