In our Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 11, 2023 (the “FirstQuarter Form 10-Q”), as well in our previous periodic reports filed with the SEC, we reported, based primarily on the funds available on March 31, 2023 and the 2023 Private Placement, the Company believes that the its existing cash and cash equivalents and cash flows generated from product sales will be sufficient to fund its existing operations and meet its planned operating expenses into at least the second quarter of 2024. We also reported that we sustained operating losses for the majority of our corporate history and expect that our 2023 expenses will exceed our 2023 revenues, as we continue to invest in both Avenova and DERMAdoctor commercialization efforts. Additionally, we expect to continue incurring operating losses and negative cash flows until revenues reach a level sufficient to support ongoing growth and operations. Accordingly, as reported in the First Quarter Form 10-Q, we have determined that our planned operations raise substantial doubt about our ability to continue as a going concern. In addition, we also noted that changing circumstances may cause us to expend cash significantly faster than currently anticipated, and we may need to spend more cash than currently expected because of circumstances beyond our control that impact the broader economy such as periods of inflation, supply chain issues, the continuation of the COVID-19 pandemic and international conflicts.
The Certificate of Designation of Preferences, Rights and Limitations of Series B Non-Voting Convertible Preferred Stock (the “Series B Certificate of Designation”) and the Certificate of Designation of Preferences, Rights and Limitations of Series C Non-Voting Convertible 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 Non-Voting Convertible Preferred Stock, par value $0.01 per share (“Series C Preferred Stock”), which is referred to as “full-ratchet” anti-dilution protection. As a result of the issuance of the Debentures at the Conversion Price of $1.30 and the 2023 Warrants having an exercise price at $1.30 per share, such anti-dilution protections were 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, being 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, 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.
Additional Information
For additional information related to and a more complete description of our business and operations, financial condition, results of operations and other important information about our Company, including the recent developments, please refer to the reports and other filings incorporated by reference in this prospectus, including our most recent Annual Report on Form 10-K (the “Annual Report”) for the year ended December 31, 2022 (the “Annual Report”), the First Quarter Form 10-Q and our other Quarterly Reports on Form 10-Q and our Current Reports on Form 8-K, as described in this prospectus under the caption “Incorporation of Certain Documents by Reference”.
Company Information
NovaBay was incorporated under the laws of the State of California on January 19, 2000,, as NovaCal Pharmaceuticals, Inc. It had no operations until July 1, 2002,, on which date it acquired all of the operating assets of NovaCal Pharmaceuticals, LLC, a California limited liability company. In February 2007,, it changed its name from NovaCal Pharmaceuticals, Inc. to NovaBay Pharmaceuticals, Inc. In June 2010,, the Company changed the state in which it was incorporated and is now incorporated under the laws of the State of Delaware.
Our corporate address is 2000 Powell Street, Suite 1150, Emeryville, California 94608, and our telephone number is (510) 899-8800. Our website address is www.novabay.com. Information found on, or accessible through, our website is not a part of, and is not incorporated into, this prospectus, and you should not consider it part of this prospectus. Our website address is included in this document as an inactive textual reference only.
RISK FACTORS
Investing in our Common Stock involves a high degree of risk. You should consider carefully the risk factors described below, and all other information and documents contained in or incorporated by reference in this prospectus (as supplemented and amended), including the risks described under the caption “Risk Factors” in the Annual Report the First Quarter Form 10-Q and any future Quarterly Reports on Form 10-Q and other filings that we make with the SEC, including those incorporated by reference herein, before deciding whether to buy our Common Stock. The risks described in this prospectus or incorporated by reference into this prospectus are not the only ones we face, but those that we consider to be material. Additional risks not presently known to us or that we currently believe are immaterial may also significantly impair our business operations and could result in a complete loss of your investment. Past financial performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods. If any of the following risks actually occur, our business, financial condition, results of operations or cash flow could be seriously harmed. This could cause the market price of our Common Stock to decline, and you could lose all or part of your investment. Please also read carefully the section below entitled “Special Note Regarding Forward-Looking Statements.”
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents we have filed with the SEC that are incorporated by reference contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934 (the “Exchange Act”), including, but not limited to, statements that are based upon management’s current expectations, assumptions, estimates, projections and beliefs, including statements about the commercial progress and future financial performance of the Company. These statements relate to future events or to our future operating or financial performance and involve risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements.
The use of words such as, but not limited to, “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “potential,” “predict,” “project,” “should,” “target,” “will,” or “would” and similar words or expressions are intended to identify forward-looking statements. These statements include, but are not limited to, statements regarding our ability to comply with the continued listing standards of the NYSE American, the financial and business impact and effect of our recent financing transactions, and any future revenue that may result from selling the Company’s products, as well as the Company’s expected future financial results and ability to continue as a going concern. These statements involve risks, uncertainties and other factors that may cause actual results or achievements to be materially different and adverse from those expressed in or implied by these forward-looking statements.
We discuss in greater detail many of these risks under the heading “Risk Factors” contained in this prospectus or otherwise described in our filings with the SEC, including our Annual Report on Form 10-K, in our subsequently filed Quarterly Reports on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC, which are incorporated by reference into this prospectus in their entirety. Also, these forward-looking statements represent our estimates and assumptions only as of the date of the document containing the applicable statement. Unless required by law, we undertake no obligation to update or revise any forward-looking statements to reflect new information or future events or developments. Thus, you should not assume that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking statements. You should read this prospectus together with the documents we have filed with the SEC that are incorporated by reference completely and with the understanding that our actual future results may be materially different from what we expect. We qualify all of the forward-looking statements in the foregoing documents by these cautionary statements.
USE OF PROCEEDS
The Shares covered by this prospectus are the 7,863,570 additional shares of Common Stock that became issuable upon conversion of the Series B Preferred Stock and Series C Preferred Stock outstanding when the Company entered into the 2023 Private Placement and the anti-dilution adjustment became effective reducing the conversion price of the Series B Preferred Stock and the Series C Preferred Stock. We will not receive any proceeds from the sale of the Shares by the Selling Stockholders. However, upon any cash exercise of the 2023 Warrants by the Selling Stockholders, we will receive cash proceeds per share equal to the exercise price of the 2023 Warrants. If the 2023 Warrants are exercised in a cashless exercise, we will not receive any proceeds from the exercise of the 2023 Warrants. We will bear the costs, expenses and fees in connection with the registration of the Shares. The Selling Stockholders will each bear all commissions and discounts, if any, attributable to their respective sales of the Shares.
MARKET FOR OUR COMMON STOCK
Market Information
Our Common Stock is listed on the NYSE American, under the symbol “NBY.”
Holders
As of May 24, 2023, we had 4,209,534 shares of Common Stock outstanding and there were approximately 116 holders of record of our Common Stock. This figure does not reflect persons or entities that hold their stock in nominee or “street” name through various brokerage firms. As of May 24, 2023, we have 9,156 shares of Series B Preferred Stock that are outstanding and were issued in the a private placement offering that was consummated on November 2, 2021 (the “2021 Private Placement that are outstanding,”), 1,097 shares of Series C Preferred Stock that are outstanding and were issued in the a private placement offering that was consummated on November 18, 2022 (the “2022 Private Placement that are outstanding,”), and no other preferred stock outstanding as of the date of this prospectus.
DIVIDEND POLICY
We have not paid cash dividends on our Common Stock since our inception. We currently expect to retain earnings primarily for use in the operation and expansion of our business; therefore, we do not anticipate paying any cash dividends in the foreseeable future. Any future determination to pay cash dividends will be at the discretion of our Board of Directors and will be dependent upon our financial condition, results of operations, capital requirements, restrictions under any existing indebtedness and other factors the Board of Directors deems relevant.
PRINCIPAL STOCKHOLDERS
The following table indicates information as of May 24, 2023 regarding the beneficial ownership of our Common Stock by:
| ● | 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. |
The percentage of shares beneficially owned is based on 4,209,534 shares of Common Stock outstanding as of May 24, 2023. Except as indicated in the footnotes to this table, and as affected by applicable community property laws, all persons listed have sole voting and investment power for all shares shown as beneficially owned by them and no shares are pledged.
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 24, 2023. For purposes of calculating the percent of class held by a single beneficial owner, the shares that such beneficial owner has the right to acquire within 60 days of May 24, 2023 are also deemed to be outstanding; however, such shares are not deemed to be outstanding for purposes of calculating the percentage ownership of any other beneficial owner. |
(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 24, 2023 or within 60 days after such date. Does not include 14,286 performance restricted stock units granted to Mr. Hall on May 4, 2021 that will vest based on the achievement of three performance goals at the end of a three-year performance period ending December 31, 2023. |
| |
(6) | Consists of 599 shares of Common Stock issuable upon exercise of outstanding options which are exercisable as of May 24, 2023 or within 60 days after such date. |
| |
(7) | Consists of 2,143 shares of Common Stock issuable upon exercise of outstanding options which are exercisable as of May 24, 2023 or within 60 days after such date. Does not include 8,572 performance restricted stock units granted to Dr. Audrey Kunin on November 8, 2021 that will vest based on the achievement of three performance goals at the end of a three year performance period ending December 31, 2023. |
| |
(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 24, 2023 or within 60 days after such date. |
| |
(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) 1,716 shares of Common Stock held directly by Dr. Freiman; and (iii) 3,399 shares of Common Stock issuable upon exercise of outstanding options which are exercisable as of May 24, 2023 or within 60 days after such date. |
| |
(10) | Consists of 858 shares of Common Stock held directly by Ms. Garlikov. |
| |
(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 24, 2023 or within 60 days after such date. |
| |
(12) | Consists of (i) 1,716 shares of Common Stock held directly by Mr. Wu and (ii) 1,580 shares of Common Stock issuable upon exercise of outstanding options which are exercisable as of May 24, 2023 or within 60 days after such date. As Non-Executive Director of China Pioneer, the parent company of Pioneer Hong Kong, Mr. Wu disclaims beneficial ownership of the shares of the Common Stock held by China Pioneer Pharma and Pioneer Hong Kong. |
| |
(13) | Consists of (i) 1,716 shares of Common Stock held directly by Dr. Jeff Zheng and (ii) 572 shares of Common Stock issuable upon exercise of outstanding options which are exercisable as of May 24, 2023 or within 60 days after such date. |
| |
(14) | Consists of 858 shares of Common Stock held directly by Mr. Sean Zheng. |
DESCRIPTION OF CAPITAL STOCK
Overview
Our authorized capital stock currently consists of 150,000,000 shares of Common Stock with a $0.01 par value per share, and 5,000,000 shares of preferred stock with a $0.01 par value per share. A description of material terms and provisions of the Amended and Restated Certificate of Incorporation, as amended (“Certificate of Incorporation”) and our Bylaws, as amended and restated (“Bylaws”), affecting the rights of holders of the Company’s capital stock is set forth below. The description is intended as a summary, and is qualified in its entirety by reference to the Certificate of Incorporation and the Bylaws, which are available in our filings with the SEC. As of May 24, 2023, there were (i) 4,209,534 shares of Common Stock outstanding; (ii) of the 15,000 shares of Series B Preferred Stock initially issued in the 2021 Private Placement, there are 9,156 shares of Series B Preferred Stock that have not been converted and are outstanding; and (iii) of the 3,250 shares of Series C Preferred Stock initially issued in the 2022 Private Placement, there are 1,097 shares of Series C Preferred Stock that have not been converted and remain outstanding.
On November 15, 2022, we effected the Reverse Stock Split. The Reverse Stock Split resulted in combining every thirty-five (35) shares of Common Stock outstanding or held in treasury into one (1) share of Common Stock. The Reverse Stock Split did not reduce the number of authorized shares of Common Stock or authorized shares of preferred stock or change the par values of our Common Stock or preferred stock, both of which remain at $0.01 per share. The Company did not issue fractional shares of Common Stock and instead issued an additional whole share of Common Stock to all holders that would otherwise have received a fractional share. Except for adjustments resulting from the treatment of fractional shares, each stockholder continued to hold the same percentage of our outstanding Common Stock immediately following the Reverse Stock Split becoming effective as such stockholder held immediately prior to the Reverse Stock Split.
Common Stock
Dividend rights. Subject to preferences that may apply to shares of preferred stock outstanding at the time, the holders of outstanding shares of our Common Stock are entitled to receive dividends out of funds legally available if the Board of Directors, in its discretion, determines to issue dividends and then only at the times and in the amounts that the Board of Directors may determine.
Voting rights. Each holder of Common Stock is entitled to one vote for each share of Common Stock held on all matters submitted to a vote of stockholders. Our Certificate of Incorporation does not provide for the right of stockholders to cumulate votes for the election of directors. Our Certificate of Incorporation establishes a classified Board of Directors, divided into three classes with staggered three-year terms. Only one class of directors is elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms.
No preemptive or similar rights. Our Common Stock is not entitled to preemptive rights and is not subject to conversion, redemption or sinking fund provisions. The rights, preferences and privileges of the holders of our Common Stock are subject to, and may be adversely affected by, the rights of the holders of any series of our preferred stock that NovaBay may designate and issue in the future.
Right to receive liquidation distributions. Upon our dissolution, liquidation or winding-up, the assets legally available for distribution to holders of our Common Stock are distributable ratably among the holders of our Common Stock, subject to prior satisfaction of all outstanding debt and liabilities and the preferential or pari passu rights and payment of liquidation preferences, if any, on any outstanding shares of our preferred stock, including the Series B Preferred Stock and the Series C Preferred Stock.
The rights of the holders of Common Stock are subject to, and may be adversely affected by, the rights of holders of shares of the Series B Preferred Stock and the Series C Preferred Stock, as described below, and any other preferred stock that we may designate and issue in the future.
Preferred Stock
Under the terms of the Certificate of Incorporation, the Board of Directors is authorized to issue up to 5,000,000 shares of preferred stock in one or more series without stockholder approval. Other than the Series B Preferred Stock and the Series C Preferred Stock, we do not currently have any shares of preferred stock issued and outstanding.
Our Certificate of Incorporation authorized the Board of Directors, subject to limitations prescribed by Delaware law, to issue preferred stock in one or more series, to establish from time to time the number of shares to be included in each series and to fix the designation, powers, preferences and rights of the shares of each series and any of its qualifications, limitations or restrictions. The Board of Directors can also increase or decrease the number of shares of any series, but not below the number of shares of that series then outstanding, without any further vote or action by our stockholders. The Board of Directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of the Common Stock. The issuance of preferred stock, while providing flexibility in connection with financings, possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring, discouraging or preventing a change in control of the Company, may adversely affect the market price of our Common Stock and the voting and other rights of the holders of Common Stock, and may reduce the likelihood that stockholders will receive dividend payments and payments upon liquidation.
Series B Non-Voting Convertible Preferred Stock
On November 2, 2021, we closed the 2021 Private Placement and we issued and sold 15,000 shares of the Series B Preferred Stock, all of which were convertible into shares of Common Stock at the election of the holders of the Series B Preferred Stock, subject to the beneficial ownership limitation described below. Of the 15,000 shares of Series B Preferred Stock originally issued and sold in the 2021 Private Placement, 9,156 shares of Series B Preferred Stock have not been converted and remain outstanding. In accordance with the Series B Certificate of Designation, the stated value of each share of the Series B Preferred Stock is $1,000 with a current per share conversion price of $1.30 into 770 shares of Common Stock, or an aggregate of 7,050,120 shares of Common Stock upon conversion of all outstanding Series B Preferred Stock. The current conversion price of the Series B Preferred Stock reflects adjustments since its initial issuance as a result of the Reverse Stock Split and the anti-dilution adjustments that have occurred pursuant to the Series B Certificate of Designation as a result of (i) the lower conversion price of the Series C Preferred Stock and exercise price of the short-term Series A-1 Common Stock purchase warrants and the long-term Series A-2 Common Stock purchase warrants (collectively, the “2022 Warrants”) that were issued in the 2022 Private Placement, which Series C Preferred Stock conversion price and exercise price of the 2022 Warrants were the same as the amended exercise prices of certain previously issued Common Stock purchase warrants and the Reprice Warrants (defined and discussed below) that were issued in connection with the 2022 Warrant Reprice Transaction (as defined and discussed below), and (ii) the lower conversion price of the Debentures and the exercise price of the 2023 Warrants that were issued in the 2023 Private Placement. The following is a summary of the terms of the Series B Preferred Stock, which is qualified in its entirety by the Series B Certificate of Designation that is filed as an exhibit to our Annual Report and which is incorporated into this prospectus by reference.
Rank
The Series B Preferred Stock ranks as to dividends or distributions of assets upon our liquidation, dissolution or winding up, whether voluntarily or involuntarily, as follows:
| ● | 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. |
Conversion Limitation
The Series B Preferred Stock is subject to a limitation upon conversion of the Series B Preferred Stock to the extent that, after giving effect to such conversion, the holder of such Series B Preferred Stock (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 Common Stock in excess of the Beneficial Ownership Limitation (or 4.99% or 9.99% of the outstanding Common Stock) as set forth in the Series B Certificate of Designation. Any holder may increase or decrease such percentage to any other percentage not in excess of 9.99% of the total number of shares of Common Stock then issued and outstanding provided that such increase in percentage shall not be effective until sixty-one days after notice to us.
Liquidation Preference
In the event of our liquidation, dissolution or winding up, holders of Series B Preferred Stock are entitled to receive the same amount as a holder of Common Stock.
Voting Rights
Shares of Series B Preferred Stock generally have no voting rights, except as required by law and except that the consent of the majority of holders of the outstanding Series B Preferred Stock is required to: (i) alter or change adversely the powers, preferences or rights given to the Series B Preferred Stock or alter or amend the Series B Certificate of Designation, (ii) amend our Certificate of Incorporation or other charter documents in any manner that adversely affects any rights of the holders of Preferred Stock, (iii) increase the number of authorized shares of Preferred Stock, and (iv) enter into any agreement with respect to any of the foregoing.
Dividends
Holders of Series B Preferred Stock are entitled to receive, and we are required to pay, dividends on shares of the Series B Preferred Stock equal (on an as if converted to Common Stock basis) to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock. The Series B Preferred Stock is not entitled to any other dividends.
Redemption
We are not obligated to redeem or repurchase any shares of Series B Preferred Stock. Shares of Series B Preferred Stock are not otherwise entitled to any redemption rights, or mandatory sinking fund or analogous fund provisions.
Listing
There is no established public trading market for the Series B Preferred Stock, and the Series B Preferred Stock has not been listed on any national securities exchange or trading system.
Dilution Protection
In the event we, at any time after the first date of issue of the Series B Preferred Stock and while at least one share of Series B Preferred Stock is outstanding: (i) pays a dividend or otherwise make a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by us upon conversion of the Series B Preferred Stock or any debt securities), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues by reclassification of shares of Common Stock any shares of our capital stock, then, in each case, the conversion price of the Series B Preferred Stock shall be adjusted as provided in the Series B Certificate of Designation. Any adjustment made pursuant to the Series B Certificate of Designation shall become effective immediately after the effective date of the applicable event described in subsections (i) through (iv) above. In addition, in the event that we or any of our subsidiaries, as applicable, at any time while the Series B Preferred Stock is outstanding sells or grants any option to purchase or sells or grants any right to reprice, or otherwise disposes of or issues (or announces any sale, grant or any option to purchase or other disposition), any Common Stock or any of our securities or any of our subsidiaries which would entitle the holder thereof to acquire at any time Common Stock at an effective price per share that is lower than the then conversion price of the Series B Preferred Stock, then the conversion price of the Series B Preferred Stock will be reduced to such lower price; this protection afforded the holder of the Series B Preferred Stock is referred to as a “full-ratchet” anti-dilution protection. This full-ratchet anti-dilution protection is subject to termination as provided in the Series B Certificate of Designation upon the earlier of: (x) our Common Stock achieving an average trading price during any 10 days during a 30-consecutive trading day period that exceeds $35.00 (such dollar amount having been adjusted to reflect the Reverse Stock Split, and which is subject to further adjustment for future stock splits, recapitalizations, stock dividends and other similar adjustments) and the trading volume during such period exceeds $500,000 per trading day; provided that the Initial Series B Registration Statement (as defined below) and the registration statement registering the resale of the Common Stock underlying the warrants issued in the 2021 Private Placement both remain effective during this measurement period; or (y) 75% of the Series B Preferred Stock issued having been converted. The holders of Series B Preferred Stock do not have any preemptive rights as a result of their ownership of Series B Preferred Stock.
Fundamental Transactions
If, at any time that shares of Series B Preferred Stock were outstanding, we effected a merger, a sale of substantially all assets or engage in another type of change of control transaction, as described in the Series B Certificate of Designation and referred to as a “Fundamental Transaction”, then a holder of Series B Preferred Stock would have the right to receive, upon any subsequent conversion of a share of Series B Preferred Stock (in lieu of shares of Common Stock) for each issuable conversion share, the same kind and amount of securities, cash or property as such holder would have been entitled to receive upon the occurrence of such fundamental transaction if such holder had been, immediately prior to such fundamental transaction, the holder of Common Stock. In connection with a Fundamental Transaction, the holders of Series B Preferred Stock may instead receive in exchange for their shares of Series B Preferred Stock a security of the successor entity evidenced by a written instrument substantially similar in form and substance to the Series B Preferred Stock, which is convertible for a corresponding number of shares of capital stock of such successor entity equivalent to the shares of Common Stock upon conversion of the Series B Preferred Stock and with a conversion price consistent with the conversion price of the Series B Preferred Stock then currently in effect. If we are not the surviving entity in any such fundamental transaction, then it shall cause any successor entity to assume in writing all of the obligations of the Company under the Series B Certificate of Designation, the 2021 Securities Purchase Agreement, the Series B Registration Rights Agreement and the 2021 Warrants in accordance with the provisions of the Series B Certificate of Designation.
Series B Registration Rights Agreement
In connection with the 2021 Private Placement, we entered into the a Registration Rights Agreement, dated October 29, 2021 (the “Series B Registration Rights Agreement”), with the investors (the “2021 Purchasers”) that provided for the resale of the shares of Common Stock underlying the Series B Preferred Stock and the shares of Common Stock underlying the Common Stock purchase warrants issued in the 2021 Private Placement (the “2021 Warrants”), which, as a result of our warrant reprice transaction of previously issued Common Stock purchase warrants held by the Selling Stockholders and other warrant holders that was completed on September 9, 2022 (the “2022 Warrant Reprice Transaction”), were amended and repriced and are referred to as the “2021 Amended Warrants.” Pursuant to the terms of the Series B Registration Rights Agreement, we initially registered, on behalf of the 2021 Purchasers, the shares of Common Stock underlying the Series B Preferred Stock for resale on the an initial registration statement on Form S-1 (the “Initial Series B Registration StatementsStatement”) and also registered for resale on a separate registration statement on Form S-1 the shares of Common stock underlying the 2021 Warrants. We also filed (i) an additional registration statement on Form S-1, on behalf of the 2021 Purchasers, that registered for resale the additional shares of Common Stock that became issuable upon conversion of the Series B Preferred Stock as a result of an anti-dilution adjustment to the conversion price of the Series B Preferred Stock that occurred as a result of the completion of the 2022 Private Placement and the 2022 Warrant Reprice Transaction. We are filing thisTransaction and (ii) an additional registration statement on Form S-1, on behalf of the Selling Stockholders who were also 2021 Purchasers, to register for resale the additional shares of Common Stock that became issuable upon conversion of the Series B Preferred Stock as a result of an anti-dilution adjustment to the conversion price of the Series B Preferred Stock that occurred as a result of entering into the transactions contemplated by the 2023 Private Placement, in which we issued the Debentures and the 2023 Warrants at an effective price per share that was lower than the conversion price at such time of the Series B Preferred Stock. The Series B Registration Rights Agreement provides for payment of liquidated damages to the 2021 Purchasers that are a party to the agreement in the event we are not able to perform our obligations with respect to registering the Common Stock. In addition, pursuant to the Series B Registration Rights Agreement, we also agreed, among other things, to indemnify the 2021 Purchasers, their officers, directors, members, employees and agents, successors and assigns under the registration statement from certain liabilities and pay all fees and expenses (excluding any legal fees of the 2021 Purchaser(s), and any underwriting discounts and selling commissions) incident to our obligations under the Series B Registration Rights Agreement. For additional information regarding the Series B Registration Rights Agreement, see a copy of the Series B Registration Rights Agreement that is filed as an exhibit to our Annual Report and is incorporated into this prospectus by reference.
Series C Non-Voting Convertible Preferred Stock
On November 18, 2022, we closed the 2022 Private Placement and issued and sold pursuant to the terms of the Securities Purchase Agreement, dated September 9, 2022 (the “2022 Securities Purchase Agreement”) units consisting of (i) 3,250 shares of Series C Preferred Stock, and (ii) the 2022short-term Series A-1 warrants to purchase Common Stock (“Series A-2 Short-Term Warrants”), which are exercisable for 1,031,752515,876 shares of Common Stock and (iii) long-term Series A-2 warrants to purchase Common Stock (“Series A-1 Long-Term Warrants” and, together with the Short-Term Warrants, the “2022 Warrants”), which are exercisable for 515,876 shares of Common Stock. At the time of issuance, all of the Series C Preferred Stock were convertible into shares of Common Stock at the election of the holders of the Series C Preferred Stock, subject to the beneficial ownership limitation described below. Of the 3,250 shares of Series C Preferred Stock originally issued and sold in the 2022 Private Placement, 1,097 of these shares remain outstanding as of the date of this prospectus. In accordance with the Series C Certificate of Designation, the stated value of each share of the Series C Preferred Stock is $1,000 with a current per share conversion price of $1.30 into 770 shares of Common Stock, or an aggregate of 844,690 shares of Common Stock upon conversion of all outstanding Series C Preferred Stock. The current conversion price of the Series C Preferred Stock reflects an anti-dilution adjustment that occurred pursuant to the Series C Certificate of Designation as a result of entering into the transactions contemplated by the 2023 Private Placement, in which we issued the Debentures and the 2023 Warrants at an effective price per share that was lower than the conversion price at such time of the Series C Preferred Stock. The following is a summary of the terms of the Series C Preferred Stock, which is qualified in its entirety by the Series C Certificate of Designation that is filed as an exhibit to our Annual Report and is incorporated into this prospectus by reference.
Rank
The Series C Preferred Stock ranks as to dividends or distributions of assets upon our liquidation, dissolution or winding up, whether voluntarily or involuntarily, as follows:
| ● | 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. |
Conversion Limitation
The Series C Preferred Stock is subject to a limitation upon conversion of the Series C Preferred Stock to the extent that, after giving effect to such conversion, the holder of such Series C Preferred Stock (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 Common Stock in excess of the Beneficial Ownership Limitation (or 4.99% or 9.99% of the outstanding Common Stock) as set forth in the Series C Certificate of Designation. Any holder may increase or decrease such percentage to any other percentage not in excess of 9.99% of the total number of shares of Common Stock then issued and outstanding provided that such increase in percentage shall not be effective until sixty-one days after notice to us.
Liquidation Preference
In the event of our liquidation, dissolution or winding up, holders of Series C Preferred Stock are entitled to receive the same amount as a holder of Common Stock.
Voting Rights
The holders of shares of the Series C Preferred Stock generally will have no voting rights, except as required by law, and except that the consent of the majority of holders of the outstanding Series C Preferred Stock would be required to: (i) alter or change adversely the powers, preferences or rights given to the Series C Preferred Stock or alter or amend the Series C Certificate of Designation, (ii) amend the Certificate of Incorporation or other charter documents in any manner that adversely affects any rights of the holders of the Series C Preferred Stock, (iii) increase the number of authorized shares of Series C Preferred Stock, and (iv) enter into any agreement with respect to any of the foregoing.
Dividends
The Holders of the Series C Preferred Stock will be entitled to receive, and the Company will be required to pay, dividends on shares of the Series C Preferred Stock equal (on an as if converted to Common Stock basis) to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock. The Series C Preferred Stock will not be entitled to any other dividends.
Dilution Protection
In the event the Company, at any time after the closing date of the 2022 Private Placement and while at least one share of Series C Preferred Stock is outstanding: (i) pays a stock dividend or otherwise make a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon conversion of the Series C Preferred Stock or payment of a dividend on the Series C Preferred Stock); (ii) subdivides outstanding shares of Common Stock into a larger number of shares; (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares; or (iv) issues by reclassification of shares of Common Stock any shares of capital stock of the Company, then in each case the conversion price of the Series C Preferred Stock will be adjusted as provided in the Series C Certificate of Designation. Any adjustment made pursuant to the Series C Certificate of Designation will become effective immediately after the effective date of the applicable event described in subsections (i) through (iv) above. In addition, if the Company at any time while the Series C Preferred Stock is outstanding, but prior to the Ratchet Termination Date (as defined in the Series C Certificate of Designation) sells or grants any option to purchase or sells or grants any right to reprice, or otherwise disposes of or issues (or announces any sale, grant or any option to purchase or other disposition), any Common Stock or any securities of the Company or any of its subsidiaries that would entitle the holder thereof to acquire Common Stock at an effective price per share that is lower than the then conversion price of the Series C Preferred Stock, then the conversion price of the Series C Preferred Stock will be reduced to such lower price, which is referred to as a “full-ratchet” anti-dilution protection. This full-ratchet anti-dilution protection is subject to termination as provided in the Series C Certificate of Designation upon the earlier of: (a) the Common Stock achieving an average trading price of 250% of the conversion price during any 10 days during a 30-consecutive trading day period and (b) 75% of the Series C Preferred Stock issued on the original issue date has been converted. The holders of Series C Preferred Stock will not have any preemptive rights as a result of their ownership of Series C Preferred Stock.
Redemption
We are not obligated to redeem or repurchase any shares of Series C Preferred Stock. Shares of Series C Preferred Stock are not otherwise entitled to any redemption rights, or mandatory sinking fund or analogous fund provisions.
Listing
There is no established public trading market for the Series C Preferred Stock, and the Series C Preferred Stock has not been listed on any national securities exchange or trading system.
Fundamental Transactions
If, at any time that shares of Series C Preferred Stock were outstanding, we effected a merger, a sale of substantially all assets or engage in another type of change of control transaction, as described in the Series C Certificate of Designation and referred to as a “Fundamental Transaction”, then a holder of Series C Preferred Stock would have the right to receive, upon any subsequent conversion of a share of Series C Preferred Stock (in lieu of shares of Common Stock) for each issuable conversion share, the same kind and amount of securities, cash or property as such holder would have been entitled to receive upon the occurrence of such fundamental transaction if such holder had been, immediately prior to such fundamental transaction, the holder of Common Stock. In connection with a Fundamental Transaction, the holders of Series C Preferred Stock may instead receive in exchange for their shares of Series C Preferred Stock a security of the successor entity evidenced by a written instrument substantially similar in form and substance to the Series C Preferred Stock, which is convertible for a corresponding number of shares of capital stock of such successor entity equivalent to the shares of Common Stock upon conversion of the Series C Preferred Stock and with a conversion price consistent with the conversion price of the Series C Preferred Stock then currently in effect. If we are not the surviving entity in any such fundamental transaction, then it shall cause any successor entity to assume in writing all of the obligations of the Company under the Series C Certificate of Designation, the 2022 Securities Purchase Agreement, the 2022 Warrants and the Series C Registration Rights Agreement in accordance with the provisions of the Series C Certificate of Designation.
Series C Registration Rights Agreement
In connection with the 2022 Private Placement, we entered into the a Registration Rights Agreement, dated November 18, 2022 (the “Series C Registration Rights Agreement”), with the investors (the “2022 Purchasers”) that provided for the resale of the shares of Common Stock underlying the Series C Preferred Stock and the shares of Common Stock underlying the 2022 Warrants issued in the 2022 Private Placement.Warrants. Pursuant to the terms of the Series C Registration Rights Agreement, we initially registered, on behalf of the 2022 Purchasers, the shares of Common Stock underlying the Series C Preferred Stock and the 2022 Warrants for resale on the Initial Series C Registration Statement.an initial registration statement on Form S-1. We are filing thisalso filed an additional registration statement on Form S-1, on behalf of the Selling Stockholder who were also 2022 Purchasers, to register for resale the additional shares of Common Stock that became issuable upon conversion of the Series C Preferred Stock as a result of an anti-dilution adjustment to the conversion price of the Series C Preferred Stock that occurred as a result of entering into the 2023 Private Placement, in which we issued new securities entitling the holders thereof to acquire Common Stock at an effective price per share that is lower than the conversion price of the Series C Preferred Stock. The Series C Registration Rights Agreement provides for payment of liquidated damages to the 2022 Purchasers that are a party to the agreement in the event we are not able to perform our obligations with respect to registering the Common Stock. In addition, pursuant to the Series C Registration Rights Agreement, we also agreed to, among other things, indemnify the 2022 Purchasers, their officers, directors, members, employees and agents, successors and assigns under the registration statement from certain liabilities and pay all fees and expenses (excluding any legal fees of the 2022 Purchaser(s), and any underwriting discounts and selling commissions) incident to our obligations under the Series C Registration Rights Agreement. For additional information regarding the Series C Registration Rights Agreement, see a copy of the Series C Registration Rights Agreement that is filed as an exhibit to our Annual Report and is incorporated into this prospectus by reference.
2023 Securities and the 2023 Private Placement
2023 Securities Issued in the 2023 Private Placement
Debentures
The Debentures issued in the 2023 Private Placement have a term of 18 months from the date of the 2023 Private Placement Closing with a maturity date of November 1, 2024. The Debentures were issued at a 10% discount to the Selling Stockholders in the 2023 Private Placement, which resulted in us receiving in gross proceeds of $3.0 million. The Debentures are secured obligations of our Company and DERMAdoctor pursuant to the terms of the Security Agreement whereby the holders of the Debentures were granted a security interest, a lien upon and a right of set-off against all of our Company’s and DERMAdoctor’s assets as collateral security for the complete, timely payment, performance and discharge of the obligations under the Debentures. Additionally, DERMAdoctor executed a Subsidiary Guarantee, pursuant to which DERMAdoctor is a guarantor of the Company’s obligations owed to the Debenture holders.
The Debentures are convertible by the holder, in whole or in part, into shares of Common Stock at a conversion price equal to $1.30 per share, subject to limitations upon conversion, including until such time as the Stockholder Approval is obtained by the Company. As of the date of this prospectus, the aggregate number of shares of Common Stock issuable upon conversion or redemption of the Debentures is 2,538,464 Conversion Shares, which number of shares will be subject to reduction for conversions and redemptions of the Debentures and to customary antidilution adjustments. Until the Stockholder Approval, the Debenture holders may convert their Debentures only up to their pro rata share of an aggregate of 438,669 shares of Common Stock, which is 19.99% of outstanding shares of Common Stock immediately prior to the 2023 Private Placement Closing. The Debentures are subject to another limitation upon conversion into shares of Common Stock to the extent that, after giving effect to such conversion, the holder of a Debenture (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. For additional information regarding the conversion, redemption and other terms, conditions and obligations relating to the rights and obligations of the Debentures, see “Prospectus Summary — The 2023 Private Placement and the Shares — The Debentures.”
2023 Warrants
The 2023 Warrants have an exercise price equal to $1.30, subject to customary anti-dilution adjustments as provided in the 2023 Warrants. The 2023 Warrants, however, will not be exercisable into Warrant Shares unless and until Stockholder Approval is received. After Stockholder Approval, the 2023 Long-Term Warrants will be exercisable for a period of five (5) years thereafter and the 2023 Short-Term Warrants will be exercisable for a period of two (2) years thereafter. The 2023 Warrants will be exercisable for an aggregate of 5,076,928 Warrant Shares. The 2023 Warrants prohibit the exercise of such 2023 Warrants to the extent that, after giving effect to such exercise, the holder of such 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 2023 Warrants do not have any preemptive rights or a preference upon any liquidation, dissolution or winding-up of the Company.
The 2023 Warrants do not have any preemptive rights or a preference upon any liquidation, dissolution or winding-up of NovaBay.
2023 Registration Rights Agreement
In connection with the 2023 Private Placement Closing, the Company entered into athe 2023 Registration Rights Agreement dated as of April 27, 2023 (the “2023Registration Rights Agreement”) with the Selling Stockholders to register the Conversion Shares and the Warrant Shares. Pursuant to the terms of the 2023 Registration Rights Agreement, the Company agreed to file this registration statement with the Commission covering the resale of the Conversion Shares and the Warrant Shares no later than 30 days after the 2023 Private Placement Closing and to use best efforts to have the registration statement declared effective as promptly as practical thereafter, and in any event no later than sixty (60) days (or ninety (90) days in certain circumstances) after the date of the Private Placement Closing. The Company’s failure to satisfy certain conditions and deadlines described in the 2023 Registration Rights Agreement may subject it to payment of certain liquidated damages.
For additional information about the terms of the 2023 Securities that we issued in the 2023 Private Placement please see the forms of such securities filed as exhibits to our Annual Report, which are incorporated into this prospectus by reference.
Common Stock Warrants
2022 Warrant Reprice Transaction and Reprice Warrants
On September 9, 2022, we completed the 2022 Warrant Reprice Transaction. In connection with this transaction, the Company entered into Reprice Letter Agreements (“Reprice Letter Agreements”) with certain holders of Common Stock purchase warrants that were issued as part of our prior warrant reprice transaction that closed on July 23, 2020 (the “2020 Warrants”) and with all of the holders of the 2021 Warrants. The Reprice Letter Agreements provided for the 2020 Warrants and the 2021 Warrants held by Participants to be amended to reduce their respective exercise price to $6.30 (reflecting the adjustment as a result of our Reverse Stock Split) (the “Reduced Exercise Price”) and, in the case of the 2021 Warrants, extend the term of those warrants until September 11, 2028. The 2020 Warrants and the 2021 Warrants as so amended are referred to as the “2020 Amended Warrants” and the “2021 Amended Warrants”.
As part of the 2022 Warrant Reprice Transaction and pursuant to the Reprice Letter Agreements, certain participants elected to make a cash exercise of a portion or all of their respective 2021 Amended Warrants and 2020 Amended Warrants (the “Initial Exercise”). In connection with the Initial Exercise, the Company, in a private placement, for those participants that made an Initial Exercise each of them received a newly issued Common Stock purchase warrant that provided for the purchase of a number of shares of Common Stock equal to 100% of the shares of Common Stock received by such participant in their Initial Exercise (the “Reprice Warrants”). 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 Reprice Warrants are exercisable until they expire on September 11, 2028. The terms of the Reprice Warrants provide for a restriction upon exercise to the extent that, after giving effect to such exercise, the holder of the Reprice 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 outstanding Common Stock. The Reprice Warrants do not have any preemptive rights or a preference upon any liquidation, dissolution or winding-up of the Company.
In connection with the 2023 Private Placement, the exercise price of the Reprice Warrants and the 2021 Amended Warrants held by the 2023 PurchasersSelling Stockholders were reduced to $1.50 per share as discussed below.
Warrant Amendments in the 2023 Private Placement
As a condition to the closing of the 2023 Private Placement, each of the Selling Stockholders entered into a Warrant Amendment Agreement with the Company that provided for the Reprice Warrants, the 2022 Warrants and the 2021 Amended Warrants held by each Selling Stockholder to be amended to reduce the exercise price of their Reprice Warrants as well as their 2022 Warrants and 2021 Amended Warrants from $6.30 per share to $1.50 per share, which became effective as of the closing of the 2023 Private Placement. In addition, the Company entered into additional Warrant Amendment Agreements with one other existing investor that hold previously issued Common Stock purchase warrants, which was a condition for Mr. Fu and Pioneer Pharma (Hong Kong) Company Ltd. to enter into and deliver certain voting commitment letters to the Company.
Aggregate Outstanding Warrants
As of May 24, 2023, we had outstanding Common Stock purchase warrants (including the 2023 Warrants and other Common Stock warrants separately described above) to purchase an aggregate of 7,382,447 shares of Common Stock at a weighted average exercise price of $2.18 per share. With the exception of the 2023 Warrants, all such outstanding Common Stock purchase warrants are currently exercisable. The 2023 Warrants will not be exercisable unless and until we obtain the Stockholder Approval.
Anti-Takeover Effects of Provisions of our Certificate of Incorporation and Bylaws and Delaware Law
Our Certificate of Incorporation provides that the Board of Directors is divided into three classes with staggered three-year terms. Only one class of directors is elected at each annual meeting of stockholders, with the other classes continuing for the remainder of their respective three-year terms. Because holders of Common Stock do not have cumulative voting rights in the election of directors, stockholders holding a majority of the shares of Common Stock outstanding are able to elect all of our directors. The Board of Directors is able to elect a director to fill a vacancy created by the expansion of the Board of Directors or due to the resignation or departure of an existing board member. Our Certificate of Incorporation and Bylaws also provide that all stockholder actions must be effected at a duly called meeting of stockholders and not by written consent, and that only the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors may call a special meeting of stockholders. In addition, our Bylaws include a requirement for the advance notice of nominations for election to the Board of Directors or for proposing matters that can be acted upon at a stockholders’ meeting. Our Certificate of Incorporation provides for the ability of the Board of Directors to issue, without stockholder approval, up to 5,000,000 shares of preferred stock with terms set by the Board of Directors, which rights could be senior to those of our Common Stock. The Certificate of Incorporation and Bylaws also provide that approval of at least 66-2/3% of the shares entitled to vote at an election of directors will be required to adopt, amend or repeal the Bylaws, or repeal the provisions of our Certificate of Incorporation regarding the election of directors and the inability of stockholders to take action by written consent in lieu of a meeting.
The foregoing provisions make it difficult for holders of Common Stock to replace the Board of Directors. In addition, the authorization of undesignated preferred stock makes it possible for the Board of Directors to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of NovaBay.
Section 203 of the Delaware General Corporation Law
We are subject to the provisions of Section 203 of the Delaware General Corporation Law regulating corporate takeovers. This section prevents some Delaware corporations from engaging, under some circumstances, in a business combination, which includes a merger or sale of at least 10% of the corporation’s assets with any interested stockholder, meaning a stockholder who, together with affiliates and associates, owns or, within three years prior to the determination of interested stockholder status, did own 15% or more of the corporation’s outstanding voting stock, unless:
| ● | 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. |
A Delaware corporation may “opt out” of these provisions with an express provision in its original certificate of incorporation or an express provision in its certificate of incorporation or bylaws resulting from a stockholders’ amendment approved by at least a majority of the outstanding voting shares. We do not plan to “opt out” of these provisions. The statute could prohibit or delay mergers or other takeover or change in control attempts and, accordingly, may discourage attempts to acquire us.
Transfer Agent and Registrar
Computershare Shareholder Services, Inc., located in Providence, Rhode Island, Providence County, is the transfer agent and registrar for our Common Stock and preferred stock in the United States and Computershare Investor Services, Inc., located in Toronto, Ontario, Canada, is the co-transfer agent and registrar for our Common Stock in Canada.
Listing on the NYSE American
Our Common Stock is listed on the NYSE American under the symbol “NBY.”
SELLING STOCKHOLDERS
The shares of Common Stock being offered by the Selling Stockholders in this prospectus are those additional sharesissuable to the Selling Stockholders upon the conversion or redemption of Common Stock underlying the Series B Preferred StockDebentures and Series C Preferred Stockthe exercise of the 2023 Warrants that became issuable at the time the anti-dilution protections were triggered when the Company entered intowe issued in the 2023 Private Placement, which is described in this prospectus under the heading “Recent Developments — 2023 Private Placement” and documents incorporated by reference into this prospectus. The table below lists the Selling Stockholders and other information regarding the beneficial ownership (as determined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) of the shares of Common Stock by each of the Selling Stockholders. These rules generally provide that a person is the beneficial owner of securities if such person has or shares the power to vote or direct the voting thereof, or to dispose or direct the disposition thereof, or has the right to acquire such powers within 60 days.
The Series B Preferred Stock and Series C Preferred Stock currently held byUntil Stockholder Approval occurs, the Selling Stockholders are convertible into shares of Common Stock. However, under the terms of the Series B Preferred Stock, as set forth in the Series B Certificate of Designation, and the Series C Preferred Stock, as set forth in the Series C Certificate of Designation, a Selling StockholderDebenture holders may not convert their sharesDebentures only up to their pro rata share of Series B Preferred Stock to the extent such conversion would cause such Selling Stockholder, together with its affiliates and attribution parties, to beneficially own a numberan aggregate of 438,669 shares of Common Stock, which would exceed 4.99% or 9.99%, as applicable to such Selling Stockholder,was 19.99% of our then outstanding Common Stock following such conversion, excluding for purposes of such determination shares of Common Stock issuableimmediately prior to the 2023 Private Placement Closing. Further, until Stockholder Approval occurs, the 2023 Warrants will not be exercisable into Warrant Shares. The Debentures and 2023 Warrants are subject to another limitation upon conversion into shares of Common Stock to the extent that, after giving effect to such conversion, the holder of such Series B Preferred StockDebenture or Series C Preferred Stock,2023 Warrant (together with the holder’s affiliates, and any other persons acting as a group together with the case may be, whichholder or any of the holder’s affiliates), would beneficially own in excess of 4.99% or 9.99% of the outstanding Common Stock. The 2023 Warrants do not have not been converted.any preemptive rights or a preference upon any liquidation, dissolution or winding-up of the Company.
ThisIn accordance with the terms of the 2023 Registration Rights Agreement with the Selling Stockholders, this prospectus generally covers the resale of the sum of the number of additional shares of Common Stock initially issuable to the Selling Stockholders upon conversion of the Series B Preferred StockDebentures and Series C Preferred Stock that were outstanding at the time when the Company entered intoexercise of the 2023 Private Placement, without regard to subsequent conversions that occurred,Warrants and based on the assumption that Stockholder Approval is received and that all of such Series B Preferred Stockthe Debentures are converted and Series C Preferred Stockall of the 2023 Warrants are convertedexercised in full, without regard to any limitations on conversion and/or exercise contained in the Debentures or the 2023 Warrants as of May 24, 2023. Because the conversion price of the Debentures and the exercise price of the underlying shares of the Series B Preferred Stock and Series C Preferred Stock2023 Warrants may be adjusted, as the case may be, upon the occurrence of certain other events,as provided in the Debentures and the 2023 Warrants, the number of shares of Common Stock that will actually be issued upon conversion or redemption of the Series B Preferred Stock and Series C Preferred StockDebentures or exercise of the 2023 Warrants in the future may be more or less than the number of shares being offered by this prospectus.
The name of each Selling Stockholder is set forth in the first column in the table below. The second column of the table lists of the number of shares of Common Stock beneficially owned by each Selling Stockholder, based on its ownership of the shares of Common Stock, as of May 24, 2023, which assumes the full conversion of the Debentures, the shares of Series B Preferred Stock and Series C Preferred Stock and/or exercise of (i)the 2023 Warrants, the Reprice Warrants, (ii)the 2022 Warrants and the 2021 Amended Warrants and (iii) the 2022 Warrants that are in each case held by the Selling StockholderStockholders on that date, without regard to any applicable ownership limitations on the conversion and/or exercise of such securities. It does not include Common Stock underlying the Debentures that may be converted or redeemed into Common Stock or paid by us in cash or the 2023 Warrants from the 2023 Private Placement as the full conversion of the Debentures and the exercise of the 2023 Warrants is subject to Stockholder Approval, which has not yet been obtained. The third column lists the shares of Common Stock being offered by this prospectus by eachthe Selling Stockholder.Stockholders. The fourth column assumes the sale of all of the sharesShares offered by each Selling Stockholder pursuant to this prospectus, but does not assume the sale of any other securities listed in the table below that each Selling Stockholder may beneficially own.
Percentage ownership is based on 4,209,534 shares of Common Stock outstanding as of May 24, 2023. The Selling Stockholders may sell all, some or none of their Shares in this offering that are received upon exercise of their Preferred Stock.Reprice Warrants. For additional information, see the section entitled “Plan of Distribution.” This information in the table and the footnotes is based upon our review of public filings, our stockholder, option holder and warrant holder registers and information furnished to us by the Selling Stockholders. Based on this information, we believe that none of the Selling Stockholders are broker-dealers or affiliates of broker-dealers.
| | | | | | | | | | 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) | | | 2,280,015 | | | | 1,955,200 | | | | 324,815 | | | | 5.5 | % |
Alpha Capital Anstalt (5) | | | 2,757,415 | | | | 2,334,020 | | | | 423,395 | | | | 6.1 | % |
Bigger Capital Fund, LP (6) | | | 1,151,852 | | | | 916,500 | | | | 235,352 | | | | 4.4 | % |
District 2 Capital Fund LP (7) | | | 959,296 | | | | 763,750 | | | | 195,546 | | | | 3.8 | % |
FGP Protective Opportunity Master Fund SP (8) | | | 1,728,876 | | | | 1,160,900 | | | | 567,976 | | | | 9.6 | % |
Hudson Bay Master Fund Ltd. (9) | | | 968,920 | | | | 733,200 | | | | 235,720 | | | | 4.6 | % |
Total Number of Shares | | | 9,846,374 | | | | 7,863,570 | | | | 1,982,804 | | | | | |
| | | | | | | | | | 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 | | | | | |
(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 20222023 Warrants as well as any other shares of Common Stock held as of May 24, 2023.2022. |
(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 Reprice2023 Warrants and are being offered by the Selling Stockholders in this prospectus. Pursuant to the RepriceDebentures and each of the 2023 Warrants, a Selling Stockholder may not convert its Debentures or exercise its Reprice2023 Warrants for shares of Common Stock if as a result of such exercise such Selling Stockholder, its affiliates and any other person whose beneficial ownership of shares of Common Stock would be aggregated with the Selling Stockholder’s for purposes of Section 13(d) of the Exchange Act, would beneficially own more than 4.99% of our Common Stock (or 9.99% if such Selling Stockholder elected for this limitation to apply or provided not less than 61 days’ prior notice to us of an increase to 9.99%). The full conversion of the Debentures and the exercise of the 2023 Warrants are also subject to the Company obtaining the Stockholder Approval. |
(3) | Assumes, for each Selling Stockholder, the conversion in full of all shares ofthe Debentures, Series B Preferred Stock and Series C Preferred Stock held by such Selling Stockholder and the exercise of all Reprice Warrants, the 2021 Amended Warrants, the 2022 Warrants and the 20222023 Warrants and the sale of all Shares offered by this prospectus. |
(4) | Altium Growth Fund, LP’s ownership as of May 24, 2023 includes an aggregate of: (1) 1,386,000 shares of Common Stock issuable upon conversion of its 1,800 shares of Series B Preferred Stock; (2) 634,616 shares of Common Stock issuable upon conversion of its Debentures; (3) 214,286 shares of Common Stock underlying its 2021 Amended Warrants; (3)(4) 71,429 shares of Common Stock underlying its Reprice Warrants; (5) 1,269,232 shares of Common Stock underlying its 2023 Warrants; and (4)(6) 608,300 shares of Common Stock. The reported share ownership does not include shares of Common Stock underlying the Debentures that may be converted into Common Stock or paid by us in cash or the 2023 Warrants from the 2023 Private Placement as the full conversion of the Debentures and the exercise of the 2023 Warrants is subject to stockholder approval, which has not yet been obtained. Altium Capital Management, LP, the investment manager of Altium Growth Fund, LP, has voting and investment power over these securities. Jacob Gottlieb is the managing member of Altium Capital Growth GP, LLC, which is the general partner of Altium Growth Fund, LP. Each of Altium Growth Fund, LP and Jacob Gottlieb disclaims beneficial ownership over these shares. |
(5) | Alpha Capital Anstalt’s ownership as of May 24, 2023 includes an aggregate of: (1) 2,471,700 shares of Common Stock issuable upon conversion of its 3,210 shares of Series B Preferred Stock; (2) 634,616 shares of Common Stock issuable upon conversion of its Debentures; (3) 71,429 shares of Common Stock underlying its Reprice Warrants; and (3)(4) 214,286 shares of Common Stock underlying its 2021 Amended Warrants. The reported share ownership does not includeWarrants; and (5) 1,269,232 shares of Common Stock underlying the Debentures that may be converted or redeemed into Common Stock or paid by us in cash or theits 2023 Warrants from the 2023 Private Placement as the full conversion of the Debentures and the exercise of the 2023 Warrants is subject to stockholder approval, which has not yet been obtained.Warrants. Nicola Feuerstein, Director of Alpha Capital Anstalt, has sole voting and dispositive power over the Company’s securities held by Alpha Capital Anstalt. |
(6) | The securities are directly held by Armistice Capital Master Fund Ltd, a Cayman Islands exempted Company (the “MasterFund”), and may be deemed to be beneficially owned by Armistice Capital, LLC (“Armistice Capital”), as the investment manager of the Master Fund; and (ii) Steven Boyd, as the Managing Member of Armistice Capital. As of May 24, 2023, this includes an aggregate of: (1) 634,616 shares of Common Stock issuable upon conversion of its Debentures; (2) 60,000 shares of Common Stock underlying its Reprice Warrants; (3) 634,922 shares of Common Stock underlying its 2022 Warrants; and (4) 1,269,232 shares of Common Stock underlying its 2023 Warrants. Armistice Capital, LLC and Steven Boyd share voting and dispositive power both with the following address: 510 Madison Avenue, 7th Floor, New York, New York 10022. |
(6)(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 800 shares of Series B Preferred Stock; (2) 305,690 shares of Common Stock issuable upon conversion of its 397 shares of Series C Preferred Stock; (3) 317,308 shares of Common Stock issuable upon conversion of its Debentures; (4) 158,732 shares of Common Stock underlying its 2022 Warrants; (4)(5) 17,858 shares of Common Stock underlying its Reprice Warrants; and (5)(6) 53,572 shares of Common Stock underlying its 2021 Amended Warrants. The reported share ownership does not includeWarrants; and (7) 634,616 shares of Common Stock underlying the Debentures that may be converted or redeemed into Common Stock or paid by us in cash or theits 2023 Warrants from the 2023 Private Placement as the full conversion of the Debentures and the exercise of the 2023 Warrants is subject to stockholder approval, which has not yet been obtained. Bigger Capital, LLC is the investment manager of Bigger Capital Fund, LP.Warrants. Mr. Michael Bigger is a managing partner of Bigger Capital GP, LLC, which is the general partner of Bigger Capital Fund, LP, and has sole voting and investment power over the Company’s securities. Bigger Capital GP, LLC and Mr. Bigger may deemed to beneficially own the shares beneficially held by Bigger Capital Fund, LP. |
(7)(8) | District 2 Capital Fund LP's (“District 2 CF”) ownership as of May 24, 2023 includes an aggregate of: (1) 654,500 shares of Common Stock issuable upon conversion of its 850 shares of Series B Preferred Stock; (2) 154,000 shares of Common Stock issuable upon conversion of its 200 shares of Series C Preferred Stock; (3) 317,308 shares of Common Stock issuable upon conversion of its Debentures; (4) 79,366 shares of Common Stock underlying its 2022 Warrants; (4)(5) 17,858 shares of Common Stock underlying its Reprice Warrants; and (5)(6) 53,572 shares of Common Stock underlying its 2021 Amended Warrants. The reported share ownership does not includeWarrants; and (7) 634,616 shares of Common Stock underlying the Debentures that may be converted or redeemed into Common Stock or paid by us in cash or theits 2023 Warrants from the 2023 Private Placement as the full conversion of the Debentures and the exercise of the 2023 Warrants is subject to stockholder approval, which has not yet been obtained.Warrants. Bigger Capital Fund GP, LLC (“Bigger GP”) is a general partner of Bigger Capital Fund, LP (“Bigger Capital”) and District 2 Capital LP (“District 2”) is the investment manager of District 2 CF. Michael Bigger is the managing member of Bigger GP and District and District 2 Holdings LLC (“District 2 Holdings”), which is the managing member of District 2 GP LLC (“District 2 GP”), the general partner of District 2 CF. Therefore, Mr. Bigger, District 2, District 2 Holdings and District 2 CF may be deemed to be the beneficial owner, and have the shared power to dispose of or direct the disposition, of the shares reported as beneficially owned by District 2 CF and Mr. Bigger and Bigger GP may be deemed to be the beneficial owner, and have the shared power to dispose of or direct the disposition, of the shares reported as beneficially owned by Bigger Capital and District 2 CF. |
(8) | FGP Protective Opportunity Master Fund SP’s ownership as of May 24, 2023 includes an aggregate of: (1) 1,078,000 shares of Common Stock issuable upon conversion of its 1,400 shares of Series B Preferred Stock; (2) 385,000 shares of Common Stock issuable upon conversion of its 500 shares of Series C Preferred Stock; (3) 158,732 shares of Common Stock underlying its 2022 Warrants; (4) 26,786 shares of Common Stock underlying its Reprice Warrants; and (5) 80,358 shares of Common Stock underlying its 2021 Amended Warrants. FGP Protective Opportunity Master Fund SP is a segregated portfolio of FGP Protective Opportunity Master Fund SPC. The principal of FGP Protective Opportunity Master Fund SP is Gregory Pepin. Gregory Pepin has the voting and dispositive power with respect to the securities. |
(9) | Hudson Bay Master Fund Ltd.’s ownership as of May 24, 2023 includes an aggregate of: (1) 843,920 shares of Common Stock issuable upon conversion of its 1,096 shares of Series B Preferred Stock; (2) 31,250 shares of Common Stock underlying its Reprice Warrants; and (3) 93,750 shares of Common Stock underlying its 2021 Amended Warrants. Hudson Bay Capital Management LP, the investment manager of Hudson Bay Master Fund Ltd., has voting and investment power over these Company securities. Sander Gerber is the managing member of Hudson Bay Capital GP LLC, which is the general partner of Hudson Bay Capital Management LP. Each of Hudson Bay Master Fund Ltd. and Sander Gerber disclaims beneficial ownership over these securities.
|
Relationships with the Selling Stockholders
Based upon information provided by the Selling Stockholders, except as set forth below, none of the Selling Stockholders nor any of their affiliates, officers, directors or principal equity holders has had any positions or office or has had any material relationship with us within the past three years.
| ● | Altium Growth Fund, LP, Alpha Capital Anstalt, Bigger Capital Fund, LP and District 2 Capital Fund LP, FGP Protective Opportunity Master Fund SP and Hudson Bay Master Fund Ltd. participated in the 2021 Private Placement and all such Selling Stockholders currently own shares of Series B Preferred Stock and 2021 Amended Warrants. |
| ● | As part of our warrant reprice transaction of previously issued Common Stock purchase warrants held by the Selling Stockholders and other warrant holders that was completed on September 9, 2022 includingWarrant Reprice Transaction, Altium Growth Fund, LP, Alpha Capital Anstalt, Bigger Capital Fund, LP and District 2 Capital Fund LP FGP Protective Opportunity Master Fund SP and Hudson Bay Master Fund Ltd. own 2021 Amended Warrants, and each of suchthe Selling Stockholders own Reprice Warrants. |
| | |
| ● | Armistice Capital Master Fund Ltd., Bigger Capital Fund, LP and District 2 Capital Fund LP, and FGP Protective Opportunity Master Fund SP participated in the 2022 Private Placement and all such Selling Stockholders currently ownhold shares of Series C Preferred Stock and 2022 Warrants. |
| | |
| ● | 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 2023 Warrants and (ii) entered into a Warrant Amendment AgreementsAgreement with the Company that provided for their respective Reprice Warrants, 2022 Warrants and/or 2021 Amended Warrants to be amended.amended to reduce the exercise price from $6.30 per share to $1.50 per share. |
PLAN OF DISTRIBUTION
Each Selling Stockholder of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell, transfer or otherwise dispose of any or all of shares of Common Stock covered by this prospectus on the NYSE American or any other stock exchange, market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale or at negotiated prices. A Selling Stockholder may use any one or more of the following methods when selling securities:
| ● | 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. |
The Selling Stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown in compliance with FINRA Rule 2121.
In connection with the sale of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.
The Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for us to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect and (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market making activities with respect to the Common Stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the Common Stock by the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
LEGAL MATTERS
Certain legal matters with respect to the validity of the issuance of the securities offered hereby will be passed upon by our counsel, Squire Patton Boggs (US) LLP, Washington, DC.
EXPERTS
The consolidated financial statements of NovaBay Pharmaceuticals, Inc. as of December 31, 2022 and 2021 and for the years then ended, incorporated by reference in this prospectus, have been audited by WithumSmith+Brown, PC, an independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1 with respect to the Shares of Common Stock being sold in this offering. This prospectus constitutes a part of that registration statement. This prospectus does not contain all the information set forth in the registration statement and the exhibits and schedules to the registration statement, because some parts have been omitted in accordance with the rules and regulations of the SEC. For further information with respect to us and our Common Stock being sold in this offering, you should refer to the registration statement and the exhibits and schedules filed as part of the registration statement. Statements contained in this prospectus regarding the contents of any agreement, contract or other document referred to herein are not necessarily complete; reference is made in each instance to the copy of the contract or document filed as an exhibit to the registration statement. Each statement is qualified by reference to the exhibit.
The SEC maintains an Internet site that contains reports, proxy and information statements and other information regarding registrants that file electronically with the SEC. The SEC’s website address is www.sec.gov.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. We make these filings available on our website http://www.novabay.com/investors/sec-filings. Our website and the information contained on, or that can be accessed through, our website will not be deemed to be incorporated by reference in, and are not considered part of, this prospectus. You should not rely on our website or any such information in making your decision whether to purchase shares of our Common Stock. You can also review these documents on the SEC’s website, as described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
You should consider the incorporated information as if we reproduced it in this prospectus. The SEC allows us to “incorporate by reference” the information we file with the SEC into this prospectus. This permits us to disclose important information to you by referring you to other documents that we filed separately with the SEC. Any information referred to in this way is considered part of this prospectus. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. This prospectus omits certain information contained in the registration statement, as permitted by the SEC. You should refer to the registration statement, including the exhibits, for further information about us and the securities we may offer pursuant to this prospectus. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily complete and each statement is qualified in all respects by that reference. We incorporate by reference the following documents that have been filed with the SEC:
| ● | Our Quarterly Report on Form 10-Q, filed with the SEC on May 11, 2023; |
| ● | 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. |
Any information in any of the foregoing documents will automatically be deemed to be modified or superseded to the extent that information in this prospectus modifies or replaces such information. We also incorporate by reference any future filings made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering of the securities made by this prospectus, including those made after the date of the initial filing of the registration statement of which this prospectus is a part and prior to effectiveness of such registration statement. Information in such future filings updates and supplements the information provided in this prospectus. Any statements in any such future filings will automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that statements in the later filed document modify or replace such earlier statements.
Notwithstanding the foregoing, unless specifically stated to the contrary, information that we furnish (and that is not deemed “filed” with the SEC) under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits under Item 9.01, is not incorporated by reference into this prospectus or the registration statement of which this prospectus is a part.
We will provide, upon written or oral request, without charge to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, a copy of any or all of the information incorporated herein by reference (exclusive of exhibits to such documents unless such exhibits are specifically incorporated by reference herein). You may request in writing or orally a copy of these filings, at no cost, by writing or telephoning us at the following address:
NovaBay Pharmaceuticals, Inc.
2000 Powell Street, Suite 1550
Emeryville, California 94608
(510) 899-8800
Attention: Corporate Secretary
7,863,5707,615,392 Shares
of
Common Stock
PROSPECTUS
, 2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. Other Expenses of Issuance and Distribution.
The following table sets forth all costs and expenses to be paid by us in connection with this registration statement and the listing of our Common Stock. All amounts shown are estimates except for the SEC registration fee.
| | Amount | | | Amount | |
SEC registration fee | | $ | 591 | | | $ | 572 | |
Accounting fees and expenses | | 12,000 | | | 12,000 | |
Legal fees and expenses | | 50,000 | | | 50,000 | |
Transfer agent and registrar fees and expenses | | | 2,000 | | | | 2,000 | |
Total expenses | | $ | 64,591 | | | $ | 64,572 | |
ITEM 14. Indemnification of Directors and Officers.
The Company’s amended and restated certificate of incorporation provides that the liability of the directors for monetary damages shall be eliminated to the fullest extent under applicable law. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Company shall be eliminated to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Under the Delaware General Corporation Law, no director will be personally liable to the Company or the Company’s stockholders for monetary damages for breach of fiduciary duty as a director, except for liability:
| ● | 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. |
The information provided above is a summary of relevant provisions of our amended and restated certificate of incorporation, amended and restated bylaws and certain provisions of the Delaware General Corporation Law. We urge you to read the full text of these documents, forms of which have been filed with the SEC, as well as the referenced provisions of the Delaware General Corporation Law because they are the legal documents and provisions that will govern matters of indemnification with respect to our directors and officers.
The Company has entered into indemnification agreements with each of the Company’s directors and executive officers that require the Company to indemnify these persons all direct and indirect costs of any type or nature whatsoever, including attorney’s fees, witness fees, and other out-of-pocket costs of whatever nature, incurred by the director or officer in any action or proceeding, whether actual, pending or threatened, subject to certain limitations, to which any of these people may be made a party by reason of the fact that he or she is or was a director or an executive officer of the Company or is or was serving or at any time serves at the request of the Company as a director, officer, employee or other agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
The Company has purchased insurance on behalf of any person who is or was a director or officer of the Company against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
ITEM 15. Recent Sales of Unregistered Securities.
During the last three years and to date in the current fiscal year, we sold the following unregistered securities, which have been adjusted to reflect the Company’s reverse stock split at a 1-for-35 ratio that became effective on November 15, 2022 (without accounting for fractional rounding):
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 shares of Common Stock at an exercise price of $23.513 per share as consideration for certain services pursuant to that certain Services Agreement, dated May 13, 2020 with TLF Bio Innovation Lab, LLC | | 429 | | January 15, 2021 |
| | | | |
Sale of (i) an aggregate of 15,000 shares of Series B non-voting convertible preferred stock that are convertible into an aggregate of 1,071,429 shares of Common Stock and (ii) Common Stock warrants exercisable for 1,071,429 shares of Common Stock for an aggregate purchase price of $15,000,000 | | 2,142,858 | | November 2, 2021 |
| | | | |
Issuance of warrants exercisable for an aggregate of 327,860 shares of Common Stock at an exercise price of $6.30 per share to certain domestic investors as partial consideration for the exercise of certain warrants held by such investors with the exercise of such warrants providing aggregate proceeds of approximately $2,065,500 | | 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 |
Ladenburg acted as placement agent in connection with each of the private placements described above, except as relates to the private placement of warrants to TLF Bio Innovation Lab, LLC. No other underwriters were involved in the foregoing sales of securities.
The securities described above were issued pursuant to the exemption from the registration requirements of the Securities Act afforded by Section 4(a)(2) of the Securities Act and/or Rule 506 of Regulation D promulgated thereunder, as a transaction to an accredited investor not involving a public offering. The recipients of securities in all such transactions represented their intention to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof and appropriate legends were affixed to the stock certificates and option agreements issued in such transactions. All recipients had adequate access, through their relationships with us, to information about us.
ITEM 16. Exhibits and Financial Statement Schedules.
(a) The following exhibits are filed as part of this Registration Statement:
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 | |
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 | |
4.4 | | 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 | | | 8-K | 001-33678 | 4.6 | 9/13/2022 | |
4.10 | | 8-K | 001-33678 | 4.1 | 4/27/2023 | | | 8-K | 001-33678 | 4.1 | 4/27/2023 | |
4.11 | | 8-K | 001-33678 | 4.2 | 4/27/2023 | | | 8-K | 001-33678 | 4.2 | 4/27/2023 | |
4.12 | | 8-K | 001-33678 | 4.3 | 4/27/2023 | | | 8-K | 001-33678 | 4.3 | 4/27/2023 | |
4.13 | | 8-K | 001-33678 | 4.4 | 4/27/2023 | | | 8-K | 001-33678 | 4.4 | 4/27/2023 | |
5.1 | | S-1 | 333-269083 | 5.1 | | X | | S-1 | 333-269083 | 5.1 | | X |
10.1 | | 8-K | 001-33678 | 10.1 | 4/27/2023 | | | 8-K | 001-33678 | 10.1 | 4/27/2023 | |
10.2 | | 8-K | 001-33678 | 10.2 | 4/27/2023 | | | 8-K | 001-33678 | 10.2 | 4/27/2023 | |
10.3 | | 8-K | 001-33678 | 10.3 | 4/27/2023 | | | 8-K | 001-33678 | 10.3 | 4/27/2023 | |
10.4 | | 8-K | 001-33678 | 10.4 | 4/27/2023 | | | 8-K | 001-33678 | 10.4 | 4/27/2023 | |
10.5 | | 8-K | 001-33678 | 10.5 | 4/27/2023 | | | 8-K | 001-33678 | 10.5 | 4/27/2023 | |
10.6+ | | 10-K | 001-33678 | 10.1 | 3/29/2022 | | | 10-K | 001-33678 | 10.1 | 3/29/2022 | |
10.7+ | | S-8 | 333-215680 | 99.1 | 1/24/2017 | | | S-8 | 333-215680 | 99.1 | 1/24/2017 | |
10.8+ | | S-8 | 333-218469 | 99.1 | 6/02/2017 | | | S-8 | 333-218469 | 99.1 | 6/02/2017 | |
10.9+ | | S-8 | 333-218469 | 99.2 | 6/02/2017 | | | S-8 | 333-218469 | 99.2 | 6/02/2017 | |
10.10+ | | 8-K | 001-33678 | 10.1 | 2/6/2020 | | | 8-K | 001-33678 | 10.1 | 2/6/2020 | |
10.11+ | | 8-K | 001-33678 | 10.6 | 1/28/2022 | | | 8-K | 001-33678 | 10.6 | 1/28/2022 | |
10.12+* | | 10-Q | 001-33678 | 10.1 | 5/6/2021 | | | 10-Q | 001-33678 | 10.1 | 5/6/2021 | |
10.13+ | | 8-K | 001-33678 | 10.8 | 5/5/2020 | | | 8-K | 001-33678 | 10.8 | 5/5/2020 | |
10.14+* | | 10-Q | 001-33678 | 10.2 | 5/6/2021 | | | 10-Q | 001-33678 | 10.2 | 5/6/2021 | |
10.15+ | | 8-K | 001-33678 | 10.1 | 11/12/2021 | | | 8-K | 001-33678 | 10.1 | 11/12/2021 | |
10.16+ | | 8-K | 001-33678 | 10.3 | 11/12/2021 | | | 8-K | 001-33678 | 10.3 | 11/12/2021 | |
10.17+* | | 8-K | 001-33678 | 10.4 | 11/12/2021 | | | 8-K | 001-33678 | 10.4 | 11/12/2021 | |
10.18+ | | 8-K | 001-33678 | 10.2 | 11/12/2021 | | | 8-K | 001-33678 | 10.2 | 11/12/2021 | |
10.19+ | | 8-K | 001-33678 | 10.1 | 11/18/2020 | | | 8-K | 001-33678 | 10.1 | 11/18/2020 | |
10.20+ | | 10-K | 001-33678 | 10.15 | 3/31/2023 | | | 10-K | 001-33678 | 10.15 | 3/31/2023 | |
10.21 | | 8-K | 001-33678 | 10.1 | 8/26/2016 | | | 8-K | 001-33678 | 10.1 | 8/26/2016 | |
10.22 | | 8-K | 001-33678 | 10.2 | 1/28/2022 | | | 8-K | 001-33678 | 10.2 | 1/28/2022 | |
10.23* | | 10-K | 001-33678 | 10.18 | 3/27/2012 | | | 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 | |
10.24 | | 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 | | | 8-K | 001-33678 | 10.2 | 7/21/2020 | |
10.28 | | 8-K | 001-33678 | 10.3 | 7/21/2020 | | | 8-K | 001-33678 | 10.3 | 7/21/2020 | |
10.29 | | 8-K | 001-33678 | 1.1 | 11/01/2021 | | | 8-K | 001-33678 | 1.1 | 11/01/2021 | |
10.30 | | 8-K | 001-33678 | 10.1 | 11/01/2021 | | | 8-K | 001-33678 | 10.1 | 11/01/2021 | |
10.31* | | 8-K | 001-33678 | 10.1 | 9/13/2022 | | | 8-K | 001-33678 | 10.1 | 9/13/2022 | |
10.32* | | 8-K | 001-33678 | 10.2 | 9/13/2022 | | | 8-K | 001-33678 | 10.2 | 9/13/2022 | |
10.33* | | 8-K | 001-33678 | 10.3 | 9/13/2022 | | | 8-K | 001-33678 | 10.3 | 9/13/2022 | |
10.34 | | 8-K | 001-33678 | 10.4 | 9/13/2022 | | | 8-K | 001-33678 | 10.4 | 9/13/2022 | |
10.35 | | 8-K | 001-33678 | 10.5 | 9/13/2022 | | | 8-K | 001-33678 | 10.5 | 9/13/2022 | |
10.36 | | 8-K | 001-33678 | 10.6 | 9/13/2022 | | | 8-K | 001-33678 | 10.6 | 9/13/2022 | |
10.37 | | 8-K | 001-33678 | 10.7 | 9/13/2022 | | | 8-K | 001-33678 | 10.7 | 9/13/2022 | |
10.38+ | | 10-K | 001-33678 | 10.33 | 3/31/2023 | | | 10-K | 001-33678 | 10.33 | 3/31/2023 | |
10.39 | | 8-K | 001-33678 | 10.1 | 4/27/2023 | | | 8-K | 001-33678 | 10.1 | 4/27/2023 | |
10.40 | | 8-K | 001-33678 | 10.2 | 4/27/2023 | | | 8-K | 001-33678 | 10.2 | 4/27/2023 | |
10.41 | | 8-K | 001-33678 | 10.3 | 4/27/2023 | | | 8-K | 001-33678 | 10.3 | 4/27/2023 | |
10.42 | | 8-K | 001-33678 | 10.4 | 4/27/2023 | | | 8-K | 001-33678 | 10.4 | 4/27/2023 | |
10.43 | | 8-K | 001-33678 | 10.5 | 4/27/2023 | | | 8-K | 001-33678 | 10.5 | 4/27/2023 | |
21 | | 10-K | 001-33678 | 21 | 3/31/2023 | | | 10-K | 001-33678 | 21 | 3/31/2023 | |
23.1 | | | | | | X | | | | | | X |
23.2 | | S-1 | 333-269083 | 23.2 | | X | | S-1 | 333-269083 | 23.2 | | X |
24.1 | | S-1 | 333-269083 | 24.1 | | X | | 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 | The Cover Page Interactive Data File, formatted in Inline XBRL (included within the Inline XBRL document) | | | | | X |
107 | | | | | | X | | | | | | 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 |
Financial statement schedules have been omitted, as the information required to be set forth therein is included in the consolidated financial statements or notes thereto appearing in the prospectus made part of this registration statement.
ITEM 17. Undertakings.
(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; |
provided, however, that subparagraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those subparagraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference 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
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Emeryville, State of California, on May 31, 2023.
| NOVABAY PHARMACEUTICALS, INC. | |
| | |
| | |
| /s/ Justin M. Hall | |
| Justin M. Hall | |
| Chief Executive Officer and General Counsel | |
SIGNATURES
Each of the undersigned officers and directors does hereby constitute and appoint Justin M. Hall and Tommy Law, and each of them, or their substitute or substitutes, as his or her true and lawful attorneys-in-fact and agents, with full power and authority to do any and all acts and things and to execute and file or cause to be filed any and all instruments, documents or exhibits which said attorneys and agents, or any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this registration statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this registration statement, to any and all amendments, both pre-effective and post-effective, and supplements to this registration statement and to any and all instruments, documents or exhibits filed as part of or in conjunction with this registration statement or amendments or supplements thereof, with the powers of substitution and revocation, and each of the undersigned hereby ratifies and confirms all that said attorneys and agents, or any one of them, or their substitute or substitutes, shall lawfully do or cause to be done by virtue hereof. In witness whereof, each of the undersigned has executed this Power of Attorney as of the dates indicated below.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature | | Title | | Date |
/s/ Justin M. Hall | | Chief Executive Officer, General Counsel and Director | | May 31, 2023 |
Justin M. Hall | | (principal executive officer) | | |
| | | | |
/s/ Tommy Law | | Interim Chief Financial Officer | | May 31, 2023 |
Tommy Law | | (principal financial and accounting officer) | | |
| | | | |
/s/ Paul E. Freiman, Ph.D. | | Chairman | | May 31, 2023 |
Paul E. Freiman, Ph.D. | | | | |
| | | | |
/s/ Dr. Audrey Kunin | | Director | | May 31, 2023 |
Dr. Audrey Kunin | | | | |
| | | | |
/s/ Julie Garlikov | | Director | | May 31, 2023 |
Julie Garlikov | | | | |
| | | | |
/s/ Swan Sit | | Director | | May 31, 2023 |
Swan Sit | | | | |
| | | | |
/s/ Mijia (Bob) Wu | | Director | | May 31, 2023 |
Mijia (Bob) Wu | | | | |
| | | | |
/s/ Yenyou (Jeff) Zheng, Ph.D. | | Director | | May 31, 2023 |
Yenyou (Jeff) Zheng, Ph.D. | | | | |
| | | | |
/s/ Yongxiang (Sean) Zheng | | Director | | May 31, 2023 |
Yongxiang (Sean) Zheng | | | | |