AMENDMENT NO. 2
TO
Delaware (State or other jurisdiction of incorporation or organization) | 2834 (Primary Standard Industrial Classification Code Number) | 68-0454536 (I.R.S. Employer Identification No.) |
(510)
Large Accelerated Filer | ☐ | Accelerated Filer | ☐ | ||||
Non-Accelerated Filer | ☒ | Smaller Reporting Company | ☒ | ||||
Emerging Growth Company |
327,860
2023 Private Placement.
Page | |
About this Prospectus | 2 |
Prospectus Summary |
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Risk Factors | |
Special Note Regarding Forward-Looking Statements | |
Use of Proceeds |
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Market for our Common Stock |
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Dividend Policy |
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Principal Stockholders |
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Description of Capital Stock |
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Selling Stockholders |
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Plan of Distribution |
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Legal Matters |
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Experts |
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Where You Can Find More Information |
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Incorporation of Certain Documents by Reference |
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PROSPECTUS SUMMARY
The Reprice Warrants
On September 9, 2022, we entered into Reprice Letter Agreements with certain holders (the “2020 Participants”) of Common Stock purchase warrants that were issued as part of our prior warrant reprice transaction that closed on July 23, 2020 (the “2020 Original Warrants”) and with all of the holders (the “2021 Participants” and together with the 2020 Participants, the “Participants”) of the Common Stock purchase warrants that we issued in our private placement that was consummated on November 2, 2021 (the “2021 Original Warrants”). The Reprice Letter Agreements provided for the 2020 Original Warrants and the 2021 Original Warrants held by Participants to be amended to reduce their respective exercise price to $0.18, or $6.30 reflecting the adjustment as a result of our Reverse Stock Split (the “Reduced Exercise Price”) and, in the case of the 2021 Original Warrants, extend the term of those warrants until September 11, 2028. The 2020 Original Warrants and the 2021 Original Warrants as so amended are referred to as the “2020 Amended Warrants” and the “2021 Amended Warrants”, respectively, and together, the “Amended Warrants.” The Amended Warrants became exercisable on March 9, 2023.
As part of the 2022 Warrant Reprice Transaction and pursuant to the Reprice Letter Agreements, the Selling Stockholders elected to make a cash exercise of their respective Amended Warrants, which included (i) the 2021 Participants exercising 25% of their respective 2021 Amended Warrants at the Reduced Exercise Price for a total of 9,375,000 shares of Common Stock, or 267,860 shares of Common Stock reflecting the subsequent Reverse Stock Split and (ii) a 2020 Participant exercising their 2020 Amended Warrant at the Reduced Exercise Price for 2,100,000 shares of Common Stock, or 60,000 shares of Common Stock reflecting the subsequent Reverse Stock Split (collectively, the “Initial Exercise”). The Company received $2,065,500 in aggregate gross proceeds from the Initial Exercise.
In connection with the Initial Exercise, the Company, in a private placement, issued to the Selling Stockholders the Reprice Warrants that provide for the purchase of a number of shares of Common Stock equal to 100% of the shares of Common Stock received by each Selling Stockholder in their Initial Exercise. After issuance, the Reprice Warrants were exercisable for an aggregate of 327,860 shares of Common Stock at an exercise price equal to $6.30, which number of underlying shares and exercise price reflect the adjustment for the Reverse Stock Split and are subject to potential future adjustment.
The terms of the Reprice Warrants provide for a restriction uponperiod of five (5) years thereafter and the Short-Term Warrants will be exercisable for a period of two (2) years thereafter. The 2023 Warrants prohibit the exercise of such 2023 Warrants to the extent that, after giving effect to such exercise, the holder of the Repricesuch 2023 Warrant (together with the holder’s affiliates, and any other persons acting as a group together with the holder or any of the holder’s affiliates), would beneficially own in excess of 4.99% or 9.99% of the outstanding Common Stock. The Reprice2023 Warrants do not have any preemptive rights or a preference upon any liquidation, dissolution or winding-up of the Company. For additional information regarding the Reprice Warrants, see “Description of Capital Stock” in this prospectus.
2022 Private Placement
Concurrent with the 2022 Warrant Reprice Transaction, we entered into a private placement transaction with accredited investors (the “2022 Private Placement”) to sell, pursuant to the Securities Purchase Agreement, dated September 9, 2022 (the “2022 Securities Purchase Agreement”), units consisting of (i) 3,250 shares of Series C Non-Voting Convertible Preferred Stock, par value $0.01 per share (“Series C Preferred Stock”), which were convertible at the time of issuance into an aggregate of 516,750 shares of Common Stock, subject to anti-dilution adjustment, (ii) short-term Series A-1 warrants to purchase Common Stock (“Short-Term Warrants”), which are exercisable for 515,876 shares of Common Stock and (iii) long-term Series A-2 warrants to purchase Common Stock (“Long-Term Warrants” and, together with the Short-Term Warrants, the “2022 Warrants”), which are exercisable for 515,876 shares of Common Stock. On November 18, 2022, we closed the 2022 Private Placement and received gross proceeds of $3.25 million from the sale of the Series C Preferred Stock and the 2022 Warrants.
2023 Private Placement
On April 27, 2023, we entered into a Securities Purchase Agreement (the “2023 Securities Purchase Agreement”) with certain existing accredited institutional investors (the “2023 Purchasers”) that provided for the issuance and sale in private placement transaction (the “2023 Private Placement”) of (i) $3.3 million aggregate principal amount of Original Issue Discount Senior Secured Convertible Debentures Due November 1, 2024 (the “Debentures”), which may be converted or redeemed into up to an aggregate of 2,538,464 shares of Common Stock (the “Conversion Shares”), (ii) new long-term Series B-1 warrants to purchase Common Stock (“2023 Long-Term Warrants”), which are exercisable for up to an aggregate of 2,538,464 shares of Common Stock, and (iii) new short-term Series B-2 warrants to purchase Common Stock (“2023 Short-Term Warrants” and, together with the Long-Term Warrants, the “2023 Warrants”), which are exercisable for up to an aggregate of 2,538,464 shares of Common Stock . The closing of the 2023 Private Placement occurred on May 1, 2023 (the “Private Placement Closing”), and we received gross proceeds of approximately $3.0 million, before deducting placement agent fees and other offering expenses. In connection with the Private Placement Closing, Common Stock purchase warrants that the Company previously issued to the 2023 Purchasers and to other existing investors in prior private placements and warrant reprice transactions, which included the Reprice Warrants held by the Selling Stockholders that participated in the 2023 Private Placement, were amended to lower the exercise price from $6.30 per share to $1.50 per share pursuant to Warrant Amendment Agreements entered into by the Company with each of the 2023 Purchasers. For more information regarding the amended Reprice Warrants held by the Selling Stockholders that participated in the 2023 Private Placement, see “Selling Stockholder” in this prospectus.
Due to the number of shares of Common Stock that may be issued upon conversion or redemption of the Debentures and the exercise of the 2023 Warrants, the Company is required to obtain stockholder approval for the issuance of these shares of common stock in accordance with Section 713(a) and 713(b) of the NYSE American Company Guide (the “Stockholder Approval”). The Company expects to seek the Stockholder Approval at its 2023 Annual Meeting of Stockholders. Until the Stockholder Approval is obtained, the conversion of the Debentures by the holders into shares of common stock is currently limited to a holder’s pro rata share of 19.99% of the Company’s outstanding shares of Common Stock, or into an aggregate of 438,669 shares of Common Stock (the “IssuableMaximum”), and none of the 2023 Warrants will be exercisable until the Stockholder Approval is obtained.
Anti-Dilution Adjustment to Series B Preferred Stock and the Series C Preferred Stock
The Certificate of Designation of Preferences, Rights and Limitations for the Company’s outstanding Series B Preferred Stock (the “Series B Certificate of Designation”) and the Certificate of Designation of Preferences, Rights and Limitations for the Company’s outstanding Series C Preferred Stock (the “Series C Certificate of Designation”) provides for anti-dilution protections in the event that the Company grants any right to reprice any Company security or issue a new Company security that would entitle the holder to acquire Common Stock at an effective price per share that is lower than the conversion price of the Series B Non-Voting Convertible Preferred Stock, par value $0.01 per share (“Series B Preferred Stock”) and the Series C Preferred Stock, which is referred to as “full-ratchet” anti-dilution protection. As a result of the issuance of the Debentures in the 2023 Private Placement, which were issued with a conversion price of $1.30, and the 2023 Warrants, which has an exercise price also at $1.30 per share, this anti-dilution protection was triggered resulting in the conversion price of each share of Series B Preferred Stock and Series C Preferred Stock, which were both convertible at a conversion price of $6.30 into 159 shares of Common Stock, were automatically adjusted downward to now be convertible at a conversion price of $1.30 into 770 shares of Common Stock. As a result of this conversion price adjustment occurring, an additional 7,863,570 shares of common stock are issuable upon conversion of the outstanding Series B Preferred Stock and Series C Preferred Stock.
Financial Outlook—Going Concern
The Shares covered by this prospectus are issuable upon the exercise of the Reprice Warrants into an aggregate of 327,860 shares of Common Stock as described in “Prospectus Summary — The Reprice Warrants and the 2022 Warrant Reprice Transaction”.
the date of this prospectus.
● | each person who is known by us to beneficially own more than five percent (5%) of our securities; |
● | our current executive officers; |
● | each of our directors; and |
● | all of our directors and executive officers as a group. |
Name and Address of Beneficial Owner (1) | Number of | Percent | ||||||||||
Beneficial Owners Holding More Than 5% | ||||||||||||
Hudson Bay Master Fund Ltd. (2) | 225,909 | 7.6 | % | |||||||||
c/o Hudson Bay Capital Management LP | ||||||||||||
28 Havemeyer Place, 2nd Floor | ||||||||||||
Greenwich, CT 06830 | ||||||||||||
Armistice Capital, LLC (3) | 191,826 | 7.0 | % | |||||||||
510 Madison Avenue, 7th Floor | ||||||||||||
New York, New York 10022 | ||||||||||||
Pioneer Pharma (Hong Kong) Company Ltd. (“Pioneer Hong Kong”) (4) | 148,241 | 5.4 | % | |||||||||
682 Castle Peak Road | ||||||||||||
Lai Chi Kok, Kowloon, Hong Kong | ||||||||||||
Executive Officers and Directors | ||||||||||||
Justin M. Hall, Esq. (5) | 17,193 | * | ||||||||||
Tommy Law (6) | 599 | * | ||||||||||
Audrey Kunin, M.D. (7) | 2,143 | * | ||||||||||
Jeff Kunin, M.D. (8) | 2,143 | * | ||||||||||
Paul E. Freiman, Ph.D. (9) | 5,182 | * | ||||||||||
Julie Garlikov (10) | 858 | * | ||||||||||
Swan Sit (11) | 2,288 | * | ||||||||||
Mijia (Bob) Wu, M.B.A. (12) | 3,296 | * | ||||||||||
Yenyou (Jeff) Zheng, Ph.D. (13) | 2,288 | * | ||||||||||
Yongxiang (Sean) Zheng (14) | 858 | * | ||||||||||
All directors and executive officers as a group (10 persons) | 34,705 | 1.3 | % |
Name and Address of Beneficial Owner (1) | Number of Shares Beneficially Owned | Percent of Class |
Beneficial Owners Holding More Than 5% | ||
Hudson Bay Master Fund Ltd. (2) | 225,909 | 5.1% |
c/o Hudson Bay Capital Management LP | ||
28 Havemeyer Place, 2nd Floor | ||
Greenwich, CT 06830 | ||
Armistice Capital, LLC (3) | 191,826 | 4.6% |
510 Madison Avenue, 7th Floor | ||
New York, New York 10022 | ||
Pioneer Pharma (Hong Kong) Company Ltd. (“Pioneer Hong Kong”) (4) | 148,241 | 3.5% |
682 Castle Peak Road | ||
Lai Chi Kok, Kowloon, Hong Kong | ||
Executive Officers and Directors | ||
Justin M. Hall, Esq. (5) | 17,193 | * |
Tommy Law (6) | 599 | * |
Audrey Kunin, M.D. (7) | 2,143 | * |
Jeff Kunin, M.D. (8) | 2,143 | * |
Paul E. Freiman, Ph.D. (9) | 5,182 | * |
Julie Garlikov (10) | 858 | * |
Swan Sit (11) | 2,288 | * |
Mijia (Bob) Wu, M.B.A. (12) | 3,296 | * |
Yenyou (Jeff) Zheng, Ph.D. (13) | 2,288 | * |
Yongxiang (Sean) Zheng (14) | 858 | * |
All directors and executive officers as a group (10 persons) | 34,705 | * |
* | Less than one percent (1%). |
(1) | The address for each director and officer of NovaBay listed is c/o NovaBay Pharmaceuticals, Inc., 2000 Powell Street, Suite 1150, Emeryville, CA 94608. Number of shares beneficially owned and percent of class is calculated in accordance with SEC rules. A beneficial owner is deemed to beneficially own shares the beneficial owner has the right to acquire within 60 days of May |
(2) | Based upon information contained in Amendment No. 1 to the Schedule 13G filed by Hudson Bay Capital Management LP and Sander Gerber with the SEC on February 10, 2023, Hudson Bay Capital Management LP beneficially owned 225,909 shares of Common Stock issuable upon the exercise of certain warrants and/or conversion of shares of convertible preferred stock as of December 31, 2022, with shared voting and dispositive power of all shares and sole voting and dispositive power of no shares. |
(3) | Based upon information contained in the Schedule 13G filed by Armistice Capital, LLC and Steven Boyd with the SEC on February 14, 2023, Armistice Capital, LLC beneficially owned 191,826 shares of Common Stock as of December 31, 2022, with shared voting and dispositive power of all shares and sole voting and dispositive power of no shares. |
(4) | Based upon information contained in the Schedule 13D/A filed by Pioneer Hong Kong and China Pioneer Pharma Holdings Limited, the parent company of Pioneer Hong Kong, with the SEC on January 13, 2017, Pioneer Hong Kong beneficially owned 148,241 shares of Common Stock (as adjusted for the Reverse Stock Split) as of December 9, 2016, with shared voting and dispositive power of all shares and sole voting and dispositive power of no shares. |
(5) | Consists of (i) 2,377 shares of Common Stock held directly by Mr. Hall and (ii) 14,816 shares issuable upon the exercise of outstanding options which are exercisable as of May |
(6) | Consists of 599 shares of Common Stock issuable upon exercise of outstanding options which are exercisable as of May |
(7) | Consists of 2,143 shares of Common Stock issuable upon exercise of outstanding options which are exercisable as of May |
(8) | Consists of 2,143 shares of Common Stock issuable upon exercise of outstanding options which are held by Dr. Jeff Kunin’s spouse, Dr. Audrey Kunin, and exercisable as of May |
(9) | Consists of (i) 67 shares of Common Stock held by the Paul Freiman and Anna Mazzuchi Freiman Trust, of which Dr. Freiman and his spouse are trustees (with sole voting power over 18 shares, shared voting power over 31 shares, sole investment power over no shares and shared investment power over 49 shares); (ii) |
(10) | Consists of |
| |
(11) | Consists of (i) 1,716 shares of Common Stock held directly by Ms. Sit and (ii) 572 shares issuable upon exercise of outstanding options which are exercisable as of May |
(12) | Consists of (i) |
(13) | Consists of (i) |
(14) | Consists of 858 shares of Common Stock |
Common Stock
● | on par with our Common Stock and our Series C Preferred Stock; |
● | senior to any class or series of our capital stock hereafter created specifically ranking by its terms junior to the Series B Preferred Stock; and |
● | junior to any class or series of our capital stock hereafter created specifically ranking by its terms senior to the Series B Preferred Stock. |
On November 18, 2022, we closed the 2022 Private Placement and issued 3,250
Designation.
● | on par with our Common Stock and our Series B Preferred Stock; |
● | senior to any class or series of our capital stock hereafter created specifically ranking by its terms junior to the Series C Preferred Stock; and |
● | junior to any class or series of our capital stock hereafter created specifically ranking by its terms senior to the Series C Preferred Stock. |
The Reprice Warrants were issued in
Company.
● | the transaction is approved by the Board of Directors prior to the time that the interested stockholder became an interested stockholder; |
● | upon consummation of the transaction which resulted in the stockholder’s becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or |
● | at or subsequent to such time that the stockholder became an interested stockholder, the business combination is approved by the Board of Directors and authorized at an annual or special meeting of stockholders by at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder. |
The Reprice Warrants held by
the Company.
Shares of Common Stock Owned After this Offering(2)(3) | ||||||||||||||||
Name of Selling Stockholder | Shares of Common Stock Owned Prior to this Offering(1) | Shares of Common Stock Being Offered by this Prospectus(2) | Number | Percentage | ||||||||||||
Altium Growth Fund, LP(4) | 4,183,863 | 1,903,848 | 2,280,015 | 27.2 | % | |||||||||||
Alpha Capital Anstalt(5) | 4,661,263 | 1,903,848 | 2,757,415 | 31.1 | % | |||||||||||
Armistice Capital, LLC(6) | 2,598,770 | 1,903,848 | 694,922 | 10.2 | % | |||||||||||
Bigger Capital Fund, LP(7) | 2,103,776 | 951,924 | 1,151,852 | 18.2 | % | |||||||||||
District 2 Capital Fund LP(8) | 1,911,220 | 951,924 | 959,296 | 15.7 | % | |||||||||||
Total Number of Shares | 15,458,892 | 7,615,392 | 7,843,500 |
Shares of Common Stock Owned | ||||||||||||||||
Name of Selling Stockholder | Shares of Stock Owned Prior to Offering (1) | Shares of Stock Offered by this (2) | Number | Percentage | ||||||||||||
Altium Growth Fund, LP (4) | 2,595,715 | 71,429 | 2,524,286 | 47.4 | % | |||||||||||
Armistice Capital Master Fund Ltd. (5) | 694,922 | 60,000 | 634,922 | 18.5 | % | |||||||||||
Alpha Capital Anstalt (6) | 3,003,815 | 71,429 | 2,932,386 | 51.2 | % | |||||||||||
Bigger Capital Fund, LP (7) | 1,346,662 | 17,858 | 1,328,804 | 32.6 | % | |||||||||||
District 2 Capital Fund LP (8) | 1,074,796 | 17,858 | 1,056,938 | 27.8 | % | |||||||||||
FGP Protective Opportunity Master Fund SP (9) | 1,728,876 | 26,786 | 1,702,090 | 38.2 | % | |||||||||||
Hudson Bay Master Fund Ltd. (10) | 968,920 | 31,250 | 937,670 | 25.4 | % | |||||||||||
Lincoln Park Capital Fund, LLC (11) | 125,000 | 31,250 | 93,750 | 3.3 | % | |||||||||||
Total Number of Shares | 11,792,806 | 327,860 | 11,464,946 |
(1) | Beneficial ownership is determined in accordance with the rules of the SEC and generally includes voting or investment power with respect to securities. Includes 100% of the shares of Common Stock issuable upon conversion of the Debentures, Series B Preferred Stock and the Series C Preferred Stock at the current conversion price and the exercise of the Reprice Warrants, the 2021 Amended Warrants, the 2022 Warrants and the |
(2) | This column represents the maximum number of shares of Common Stock that may be issued to each Selling Stockholder upon conversion of the Debentures and exercise of the |
(3) | Assumes, for each Selling Stockholder, the conversion in full of |
(4) | Altium Growth Fund, LP’s ownership as of May |
(5) |
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| Alpha Capital Anstalt’s ownership as of May |
|
The securities are directly held by Armistice Capital Master Fund |
(7) | Bigger Capital Fund, LP’s ownership as of May 24, 2023 includes an aggregate of: (1) 616,000 shares of Common Stock issuable upon conversion of its |
(8) | District 2 Capital Fund LP's (“District 2 |
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● | Altium Growth Fund, LP, Alpha Capital Anstalt, Bigger Capital Fund, LP and District 2 Capital Fund LP, |
● | As part of the 2022 Warrant Reprice Transaction, Altium Growth Fund, LP, Alpha Capital Anstalt, Bigger Capital Fund, LP and District 2 Capital Fund LP | |
● | Armistice Capital Master Fund Ltd., Bigger Capital Fund, LP and District 2 Capital Fund LP, | |
● | Altium Growth Fund, LP, Alpha Capital Anstalt, Armistice Capital Master Fund Ltd., Bigger Capital Fund, LP and District 2 Capital Fund LP participated in the 2023 Private Placement and all such Selling Stockholders (i) currently holds Debentures and |
● | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
● | block trades in which the broker-dealer will attempt to sell the Shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction; |
● | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
● | an exchange distribution in accordance with the rules of the applicable exchange; |
● | privately negotiated transactions; |
● | settlement of short sales, to the extent permitted by law; |
● | through the writing or settlement of options or other hedging transactions, whether through an option exchange or otherwise; |
● | in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities at a stipulated price per security; |
● | a combination of any such methods of sale; or |
● | any other method permitted pursuant to applicable law. |
● | our Annual Report on Form 10-K for the year ended December 31, 2022, as filed with the SEC on March 31, 2023, as amended on April 28, 2023; |
● | Our Quarterly Report on Form 10-Q, filed with the SEC on May 11, 2023; |
● | our Current Reports on Form 8-K, filed with the SEC on January 20, 2023, April 27, 2023, and May 2, 2023; |
● | our |
● | the description of our Common Stock in our registration statement on Form 8-A, as filed with the SEC on August 29, 2007, as updated by our Current Report on Form 8-K filed with the SEC on June 29, 2010, and including any amendments or reports filed for the purposes of updating this description, including Exhibit 4.1 or our Annual Report on Form 10-K for the year ended December 31, 2022, as filed with the SEC on March 31, 2023, as amended on April 28, 2023. |
327,860
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Amount | ||||
SEC registration fee | $ | 42 | ||
Accounting fees and expenses | 12,000 | |||
Legal fees and expenses | 50,000 | |||
Transfer agent and registrar fees and expenses | 2,000 | |||
Total expenses | $ | 64,042 |
Amount | ||||
SEC registration fee | $ | 572 | ||
Accounting fees and expenses | 12,000 | |||
Legal fees and expenses | 50,000 | |||
Transfer agent and registrar fees and expenses | 2,000 | |||
Total expenses | $ | 64,572 |
● | for any breach of the duty of loyalty to the Company or the Company’s stockholders; |
● | for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
● | for unlawful payment of dividends or unlawful stock repurchases or redemptions under Section 174 of the Delaware General Corporation Law; and |
● | for any transaction from which the director derived an improper personal benefit. |
● | The Company’s amended and restated bylaws provide that: |
● | the Company is required to indemnify the Company’s directors and executive officers to the fullest extent not prohibited by Delaware law, subject to limited exceptions; |
● | the Company may indemnify the Company’s other employees and agents as set forth in the Delaware General Corporation Law; |
● | the Company is required to advance expenses to the Company’s directors and executive officers as incurred in connection with legal proceedings against them for which they may be indemnified, against an undertaking by the indemnified party to repay such advances if it is ultimately determined that the indemnified party is not entitled to indemnification; and |
● | the rights conferred in the amended and restated bylaws are not exclusive. |
Capital Raise | # of Shares, Units or Warrants | Date | ||
Issuance of warrants exercisable for an aggregate of 197,102 shares of Common Stock at an exercise price of $57.75 per share to certain domestic and foreign investors as partial consideration for the exercise of certain warrants then held by such investors with the exercise of such warrants providing aggregate proceeds of $6,829,580 | 197,102 | July 20, 2020 | ||
Issuance of warrants exercisable for an aggregate of | 429 | January 15, 2021 | ||
Sale of (i) an aggregate of 15,000 shares of Series | 2,142,858 | November 2, 2021 | ||
Issuance of warrants exercisable for an aggregate of | 327,860 | September 9, 2022 | ||
Issuance and sale of units consisting of an aggregate of (i) 3,250 Series C Non-Voting Convertible Preferred Stock, par value $0.01 per share, convertible into an aggregate of 516,750 shares of Common Stock, (ii) short-term Series A-1 warrants to purchase an aggregate of 515,876 shares Common Stock, and (iii) long-term Series A-2 warrants to purchase an aggregate of 515,876 shares Common Stock for an aggregate purchase price of $3,250,000 | 1,548,502 | November 18, 2022 | ||
Issuance and sale of an aggregate of (i) $3.3 million aggregate principal amount of Original Issue Discount Senior Secured Convertible Debentures Due November 1, 2024, which may be converted or redeemed into up to an aggregate of 2,538,464 shares of Common Stock, (ii) long-term Series B-1 warrants to purchase Common Stock, which are exercisable for up to an aggregate of 2,538,464 shares of Common Stock, and (iii) short-term Series B-2 warrants to purchase Common Stock, which are exercisable for up to an aggregate of 2,538,464 shares of Common Stock, for an aggregate purchase price of $3,000,000 | 7,615,392 | May 1, 2023 |
Exhibit Number | Exhibit Description | Incorporated by Reference | Filed Herewith | |||
Form | File Number | Exhibit/ Form 8-K Item Reference | Filing Date | |||
2.1 | 8-K | 001-3678 | 2.1 | 9/28/2021 | ||
3.1 | Amended and Restated Certificate of Incorporation of NovaBay Pharmaceuticals, Inc. | 10-K | 001-33678 | 3.1 | 3/21/2018 | |
3.2 | 8-K | 001-33678 | 3.1 | 6/04/2018 | ||
3.3 | Amendment to the Amended and Restated Certificate of Incorporation, as amended, dated May 27, 2020 | 8-K | 001-33678 | 3.1 | 5/28/2020 | |
3.4 | Amendment to the Amended and Restated Certificate of Incorporation, as amended, dated May 24, 2021 | 8-K | 001-33678 | 3.1 | 5/24/2021 | |
3.5 | 8-K | 001-33678 | 3.1 | 2/1/2022 | ||
3.6 | 8-K | 001-33678 | 3.1 | 11/1/2021 | ||
3.7 | 8-K | 001-33678 | 3.1 | 11/18/2022 | ||
3.8 | Certificate of Designation for Series C Preferred Stock, dated November 17, 2022 | 8-K | 001-33678 | 3.2 | 11/18/2022 | |
3.9 | 10-K | 001-33678 | 3.7 | 3/29/2022 | ||
4.1 | 10-K | 001-33678 | 4.1 | 3/31/2023 | ||
4.2 | 8-K | 001-33678 | 4.1 | 5/18/2020 | ||
4.3 | 8-K | 001-33678 | 4.1 | 7/21/2020 |
Exhibit Number | Exhibit Description | Incorporated by Reference | Filed Herewith | |||
Form | File Number | Exhibit/ Form 8-K Item Reference | Filing Date | |||
2.1 | 8-K | 001-3678 | 2.1 | 9/28/2021 | ||
3.1 | 10-K | 001-33678 | 3.1 | 3/21/2018 | ||
3.2 | 8-K | 001-33678 | 3.1 | 6/04/2018 | ||
3.3 | 8-K | 001-33678 | 3.1 | 5/28/2020 | ||
3.4 | 8-K | 001-33678 | 3.1 | 5/24/2021 | ||
3.5 | 8-K | 001-33678 | 3.1 | 2/1/2022 | ||
3.6 | 8-K | 001-33678 | 3.1 | 11/1/2021 | ||
3.7 | 8-K | 001-33678 | 3.1 | 11/18/2022 | ||
3.8 | 8-K | 001-33678 | 3.2 | 11/18/2022 | ||
3.9 | 10-K | 001-33678 | 3.7 | 3/29/2022 | ||
4.1 | 10-K | 001-33678 | 4.1 | 3/31/2023 | ||
4.2 | 8-K | 001-33678 | 4.1 | 5/18/2020 | ||
4.3 | 8-K | 001-33678 | 4.1 | 7/21/2020 | ||
4.4 | 8-K | 001-33678 | 4.1 | 9/13/2022 | ||
4.5 | 8-K | 001-33678 | 4.2 | 9/13/2022 | ||
4.6 | 8-K | 001-33678 | 4.3 | 9/13/2022 | ||
4.7 | 8-K | 001-33678 | 4.4 | 9/13/2022 | ||
4.8 | 8-K | 001-33678 | 4.5 | 9/13/2022 |
4.9 | 8-K | 001-33678 | 4.6 | 9/13/2022 | ||
4.10 | 8-K | 001-33678 | 4.1 | 4/27/2023 | ||
4.11 | 8-K | 001-33678 | 4.2 | 4/27/2023 | ||
4.12 | 8-K | 001-33678 | 4.3 | 4/27/2023 | ||
4.13 | 8-K | 001-33678 | 4.4 | 4/27/2023 | ||
5.1 | S-1 | 333-269083 | 5.1 | X | ||
10.1 | 8-K | 001-33678 | 10.1 | 4/27/2023 | ||
10.2 | 8-K | 001-33678 | 10.2 | 4/27/2023 | ||
10.3 | 8-K | 001-33678 | 10.3 | 4/27/2023 | ||
10.4 | 8-K | 001-33678 | 10.4 | 4/27/2023 | ||
10.5 | 8-K | 001-33678 | 10.5 | 4/27/2023 | ||
10.6+ | 10-K | 001-33678 | 10.1 | 3/29/2022 | ||
10.7+ | S-8 | 333-215680 | 99.1 | 1/24/2017 | ||
10.8+ | S-8 | 333-218469 | 99.1 | 6/02/2017 | ||
10.9+ | S-8 | 333-218469 | 99.2 | 6/02/2017 | ||
10.10+ | 8-K | 001-33678 | 10.1 | 2/6/2020 | ||
10.11+ | 8-K | 001-33678 | 10.6 | 1/28/2022 | ||
10.12+* | 10-Q | 001-33678 | 10.1 | 5/6/2021 | ||
10.13+ | 8-K | 001-33678 | 10.8 | 5/5/2020 | ||
10.14+* | 10-Q | 001-33678 | 10.2 | 5/6/2021 | ||
10.15+ | 8-K | 001-33678 | 10.1 | 11/12/2021 | ||
10.16+ | 8-K | 001-33678 | 10.3 | 11/12/2021 | ||
10.17+* | 8-K | 001-33678 | 10.4 | 11/12/2021 | ||
10.18+ | 8-K | 001-33678 | 10.2 | 11/12/2021 | ||
10.19+ | 8-K | 001-33678 | 10.1 | 11/18/2020 | ||
10.20+ | 10-K | 001-33678 | 10.15 | 3/31/2023 | ||
10.21 | 8-K | 001-33678 | 10.1 | 8/26/2016 | ||
10.22 | 8-K | 001-33678 | 10.2 | 1/28/2022 | ||
10.23* | 10-K | 001-33678 | 10.18 | 3/27/2012 | ||
10.24 | 8-K | 001-33678 | 1.1 | 5/14/2021 | ||
10.25 | 10-Q | 001-33678 | 10.28 | 5/7/2020 | ||
10.26 | 8-K | 001-33678 | 10.1 | 7/21/2020 |
10.27 | 8-K | 001-33678 | 10.2 | 7/21/2020 | ||
10.28 | 8-K | 001-33678 | 10.3 | 7/21/2020 | ||
10.29 | 8-K | 001-33678 | 1.1 | 11/01/2021 | ||
10.30 | 8-K | 001-33678 | 10.1 | 11/01/2021 | ||
10.31* | 8-K | 001-33678 | 10.1 | 9/13/2022 | ||
10.32* | 8-K | 001-33678 | 10.2 | 9/13/2022 | ||
10.33* | 8-K | 001-33678 | 10.3 | 9/13/2022 | ||
10.34 | 8-K | 001-33678 | 10.4 | 9/13/2022 | ||
10.35 | 8-K | 001-33678 | 10.5 | 9/13/2022 | ||
10.36 | 8-K | 001-33678 | 10.6 | 9/13/2022 | ||
10.37 | 8-K | 001-33678 | 10.7 | 9/13/2022 | ||
10.38+ | 10-K | 001-33678 | 10.33 | 3/31/2023 | ||
10.39 | 8-K | 001-33678 | 10.1 | 4/27/2023 | ||
10.40 | 8-K | 001-33678 | 10.2 | 4/27/2023 | ||
10.41 | 8-K | 001-33678 | 10.3 | 4/27/2023 | ||
10.42 | 8-K | 001-33678 | 10.4 | 4/27/2023 | ||
10.43 | 8-K | 001-33678 | 10.5 | 4/27/2023 | ||
21 | 10-K | 001-33678 | 21 | 3/31/2023 | ||
23.1 | X | |||||
23.2 | S-1 | 333-269083 | 23.2 | X | ||
24.1 | S-1 | 333-269083 | 24.1 | X | ||
104 | The Cover Page Interactive Data File, formatted in Inline XBRL (included within the Inline XBRL document) | X | ||||
107 | X |
+ | Indicates a management contract or compensatory plan or arrangement. |
* | Certain confidential portions of this exhibit were omitted by means of marking such portions with brackets because the confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed. |
(b) | Financial Statement Schedules |
(a) | The undersigned registrant hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; |
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; and |
(iii) | Each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(6) | That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(b) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. |
SIGNATURES
NOVABAY PHARMACEUTICALS, INC. | ||
/s/ Justin M. Hall | ||
Justin M. Hall | ||
Chief Executive Officer and General Counsel |
Signature | Title | Date | |||
| Chief Executive Officer, General Counsel and Director | May | |||
Justin M. Hall | (principal executive officer) | ||||
/s/ Tommy Law | Interim Chief Financial Officer | May | |||
Tommy Law | (principal financial and accounting officer) | ||||
| Chairman | May | |||
Paul E. Freiman, Ph.D. | |||||
| Director | May | |||
Dr. Audrey Kunin | |||||
Director | May | ||||
Julie Garlikov | |||||
Director | May | ||||
Swan Sit | |||||
Director | May | ||||
Mijia (Bob) Wu | |||||
Director | May | ||||
Yenyou (Jeff) Zheng, Ph.D. | |||||
Director | May | ||||
Yongxiang (Sean) Zheng | |||||