NovaBay Pharmaceuticals Inc
For the period ended Dec 31, 2023. Filed Mar 26, 2024.
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FY2023 · Filed Mar 26, 2024
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Item 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
| ITEM 15. | EXHIBITS, FINANCIAL STATEMENT SCHEDULES |
|---|
(a) Documents filed as part of this report:
(1)Financial Statements. The financial statements listed in the Index for Item 8 hereof are filed as part of this report.
(2)Financial Statement Schedules. All schedules have been omitted because they are not required or the required information is included in our consolidated financial statements and notes thereto.
(3)Exhibits. The following exhibits are filed as part of this Report:
| Incorporation by Reference · Filed Herewith | |||||
|---|---|---|---|---|---|
| Exhibit Number | Exhibit Description | Form | File Number | Exhibit/ Form 8-K Item Reference | Filing Date |
| 2.1 | Membership Unit Purchase Agreement dated September 27, 2021, by and among the Company, DERMAdoctor, the Founders and the Sellers (as defined therein) | 8-K | 001-3678 | 2.1 | 9/28/2021 |
| 2.2 | Membership Unit Purchase Agreement dated March 12, 2024, but and among the Company, DERMAdoctor, and New Age Investments | 8-K | 001-3678 | 2.1 | 03/14/2024 |
| 3.1 | Amended and Restated Certificate of Incorporation of NovaBay Pharmaceuticals, Inc. | 10-K | 001-33678 | 3.1 | 3/21/2018 |
| 3.2 | Amendment to the Amended and Restated Certificate of Incorporation, dated June 4, 2018 | 8-K | 001-33678 | 3.1 | 6/04/2018 |
| 3.3 | Amendment to the Amended and Restated Certificate of Incorporation, as amended, dated May 27, 2020 | 8-K | 001-33678 | 3.1 | 5/28/2020 |
| 3.4 | Amendment to the Amended and Restated Certificate of Incorporation, as amended, dated May 24, 2021 | 8-K | 001-33678 | 3.1 | 5/24/2021 |
| 3.5 | Amendment to the Amended and Restated Certificate of Incorporation, as amended, dated January 31, 2022 | 8-K | 001-33678 | 3.1 | 2/1/2022 |
| 3.6 | Amendment to Amended and Restated Certificate of Incorporation, as amended, dated November 14, 2022 | 8-K | 001-33678 | 3.1 | 11/18/2022 |
| 3.7 | Certificate of Designation for the Series B Preferred Stock | 8-K | 001-33678 | 3.1 | 11/1/2021 |
| 3.8 | Certificate of Designation for the Series C Preferred Stock | 8-K | 001-33678 | 3.2 | 11/18/2022 |
| 3.9 | Bylaws, as amended and restated effective June 13, 2023 | 10-K | 001-33678 | 3.7 | 6/14/2023 |
| 4.1 | Form of Warrant pursuant to the Services Agreement with TLF Bio Innovation Lab, LLC, dated May 13, 2020 | 8-K | 001-33678 | 4.1 | 5/18/2020 |
| 4.2 | Form of July 2020 Warrant | 8-K | 001-33678 | 4.1 | 7/21/2020 |
| 4.3 | Form of Amended July 2020 Warrant | 8-K | 001-33678 | 4.1 | 9/13/2022 |
| 4.4 | Form of Amended November 2021 Warrant | 8-K | 001-33678 | 4.2 | 9/13/2022 |
| 4.5 | Form of September 2022 Warrant (2020 participants) | 8-K | 001-33678 | 4.3 | 9/13/2022 |
| 4.6 | Form of September 2022 Warrant (2021 participants) | 8-K | 001-33678 | 4.4 | 9/13/2022 |
| 4.7 | Form of Series A-1 Long-Term Warrant | 8-K | 001-33678 | 4.5 | 9/13/2022 |
| 4.8 | Form of Series A-2 Short-Term Warrant | 8-K | 001-33678 | 4.6 | 9/13/2022 |
| 4.9 | Form of Original Issue Discount Secured Senior Convertible Debentures | 8-K | 001-33678 | 4.1 | 4/27/2023 |
| 4.10 | Form of Series B-1 Long-Term Warrant | 8-K | 001-33678 | 4.2 | 4/27/2023 |
| 4.11 | Form of Series B-2 Short-Term Warrant | 8-K | 001-33678 | 4.3 | 4/27/2023 |
| 4.12 | Form of Warrant Amendment Agreement | 8-K | 001-33678 | 4.4 | 4/27/2023 |
| 4.13 | Form of Series C Common Stock Warrant | 8-K | 001-33678 | 4.1 | 12/21/2023 |
| 4.14 | Form of Series D Common Stock Warrant | 8-K | 001-33678 | 4.2 | 3/25/2024 |
| 4.15 | Form of Unsecured Convertible Notes | 8-K | 001-33678 | 4.3 | 3/25/2024 |
| 10.1 | Director and Officer Indemnity Agreement | 10-K | 001-33678 | 10.1 | 3/29/2022 |
| 10.2+ | NovaBay Pharmaceuticals, Inc. 2007 Omnibus Incentive Plan (as amended and restated) | S-8 | 333-215680 | 99.1 | 1/24/2017 |
| 10.3+ | NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive Plan | S-8 | 333-218469 | 99.1 | 6/02/2017 | |
| 10.4+ | NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive Plan (Form Agreements to the 2017 Omnibus Incentive Plan) | S-8 | 333-218469 | 99.2 | 6/02/2017 | |
| 10.5+ | Executive Employment Agreement (Employment Agreement of Justin M. Hall) | 8-K | 001-33678 | 10.1 | 2/6/2020 | |
| 10.6+ | First Amendment to the Executive Employment Agreement with Justin M. Hall, dated January 26, 2022 | 8-K | 001-33678 | 10.6 | 1/28/2022 | |
| 10.7+ | Second Amendment to Executive Employment Agreement with Justin M. Hall, effective December 31, 2023 | 8-K | 001-33678 | 10.3 | 12/11/2023 | |
| 10.8+ | 2024 Non-Employee Director Compensation Plan | X | ||||
| 10.9 | Office Lease (between the Company and KBSIII Towers at Emeryville, LLC) | 8-K | 001-33678 | 10.1 | 8/26/2016 | |
| 10.10 | First Amendment to Office Lease by and between the Company and KBSIII Towers at Emeryville, LLC, dated January 24, 2022 | 8-K | 001-33678 | 10.2 | 1/28/2022 | |
| 10.11† | International Distribution Agreement (by and between the Company and Pioneer Pharma Co. Ltd.) | 10-K | 001-33678 | 10.18 | 3/27/2012 | |
| 10.12 | At the Market Offering Agreement between the Company and Ladenburg Thalmann & Co. Inc., dated May 14, 2021 | 8-K | 001-33678 | 1.1 | 5/14/2021 | |
| 10.13 | Form of Exercise Agreement with Holders of 2019 Domestic Warrants | 8-K | 001-33678 | 10.1 | 7/21/2020 | |
| 10.14 | Form of Exercise Agreement with Holders of 2019 Foreign Warrants | 8-K | 001-33678 | 10.2 | 7/21/2020 | |
| 10.15 | Form of Reprice Agreement with Ladenburg | 8-K | 001-33678 | 10.3 | 7/21/2020 | |
| 10.16 | Form of Securities Purchase Agreement, dated October 29, 2021 | 8-K | 001-33678 | 1.1 | 11/01/2021 | |
| 10.17 | Form of Registration Rights Agreement, dated October 29, 2021 | 8-K | 001-33678 | 10.1 | 11/01/2021 | |
| 10.18 | Form of 2020 Warrant Reprice Letter Agreement, dated September 9, 2022 | 8-K | 001-33678 | 10.1 | 9/13/2022 | |
| 10.19 | Form of 2021 Warrant Reprice Letter Agreement, dated September 9, 2022 | 8-K | 001-33678 | 10.2 | 9/13/2022 | |
| 10.20 | Form of Securities Purchase Agreement, dated September 9, 2022 | 8-K | 001-33678 | 10.3 | 9/13/2022 | |
| 10.21 | Form of Registration Rights Agreement | 8-K | 001-33678 | 10.4 | 9/13/2022 | |
| 10.22+ | Consulting Agreement between the Company and Andrew Jones, dated February 15, 2023 | 8-K | 001-33678 | 10.8 | 3/31/2023 | |
| 10.23 | Form of Letter Agreement | 8-K | 001-33678 | 10.1 | 12/21/2023 | |
| 10.24* | License and Distribution Agreement by and between NovaBay and Sonoma, dated, January 5, 2024 | 8-K | 001-33678 | 10.1 | 1/05/2024 | |
| 10.25 | Form of Securities Purchase Agreement | 8-K | 001-33678 | 10.1 | 4/27/2023 | |
| 10.26* | Form of Security Agreement | 8-K | 001-33678 | 10.2 | 4/27/2023 | |
| 10.27* | Form of First Amendment to the Security Agreement, dated March 24, 2024 | 8-K | 001-33678 | 10.3 | 3/25/2024 | |
| 10.28 | Form of Subsidiary Guarantee | 8-K | 001-33678 | 10.3 | 4/27/2023 | |
| 10.29* | Form of Consent and Release, dated March 24, 2024 | 8-K | 001-33678 | 10.4 | 3/25/2024 | |
| 10.30 | Form of Voting Commitment | 8-K | 001-33678 | 10.4 | 4/27/2023 | |
| 10.31 | Form of Registration Rights Agreement | 8-K | 001-33678 | 10.5 | 4/27/2023 | |
| 21 | Subsidiaries of the Company | X | ||||
| 23.1 | Consent of WithumSmith+Brown PC | X | ||||
| 31.1 | Certification of the Principal Executive Officer of NovaBay Pharmaceuticals, Inc., as required by Rule 13a-14(a) or Rule 15d-14(a) | X | ||||
| 31.2 | Certification of the Principal Financial Officer of NovaBay Pharmaceuticals, Inc., as required by Rule 13a-14(a) or Rule 15d-14(a) | X | ||||
| 32.1 | Certification by the Chief Executive Officer of NovaBay Pharmaceuticals, Inc., as required by Rule 13a-14(b) or 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. 1350) | X | ||||
| 32.2 | Certification by the Chief Financial Officer of NovaBay Pharmaceuticals, Inc., as required by Rule 13a-14(b) or 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. 1350) | X | ||||
| 97 | NovaBay Pharmaceuticals, Inc. Policy for Recoupment of Incentive Compensation | X |
| 101.INS | Inline XBRL Instance Document | X |
| 101.SCH | Inline XBRL Taxonomy Extension Schema Document | X |
| 101.CAL | Inline XBRL Taxonomy Extension Calculation Linkbase Document | X |
| 101.DEF | Inline XBRL Taxonomy Extension Definition Linkbase | X |
| 101.LAB | Inline XBRL Taxonomy Extension Labels Linkbase Document | X |
| 101.PRE | Inline XBRL Taxonomy Extension Presentation Linkbase Document | X |
| 104 | The Cover Page Interactive Data File, formatted in Inline XBRL (included within the Exhibit 101 attachments) | X |
| + | Indicates a management contract or compensatory plan or arrangement |
|---|---|
| † | NovaBay Pharmaceuticals, Inc. has been granted confidential treatment with respect to certain portions of this exhibit (indicated by asterisks), which have been separately filed with the Securities and Exchange Commission. |
| * | 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. |
None.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized.
| Date: March 26, 2024 | |
|---|---|
| By: | /s/ Justin Hall |
| Justin Hall Chief Executive Officer, General Counsel and Director (principal executive officer) | |
| Date: March 26, 2024 | |
|---|---|
| By: | /s/ Tommy Law |
| Tommy Law Interim Chief Financial Officer (principal financial officer) | |
POWER****OF ATTORNEY
We, the undersigned officers and directors of NovaBay Pharmaceuticals, Inc., do hereby constitute and appoint Justin Hall and Tommy Law, and each of them, our true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this report, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby, ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report on Form 10-K has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated:
| Signature | Title | Date |
|---|---|---|
| /s/ JUSTIN HALL | Chief Executive Officer, General Counsel and Director | March 26, 2024 |
| Justin Hall | (principal executive officer) | |
| /s/ TOMMY LAW | Interim Chief Financial Officer | March 26, 2024 |
| Tommy Law | (principal financial officer) | |
| /s/ PAUL E. FREIMAN | Chairman of the Board | March 26, 2024 |
| Paul E. Freiman | ||
| /s/ JULIE GARLIKOV | Director | March 26, 2024 |
| Julie Garlikov | ||
| /s/ SWAN SIT | Director | March 26, 2024 |
| Swan Sit | ||
| /s/ MIJIA WU | Director | March 26, 2024 |
| Mijia Wu, M.B.A. (Bob Wu) | ||
| /s/ YENYOU ZHENG | Director | March 26, 2024 |
| Yenyou (Jeff) Zheng | ||
| /s/ YONGXIANG ZHENG | Director | March 26, 2024 |
| Yongxiang (Sean) Zheng | ||
The text of this filing, as the company filed it with the SEC, without its images or exhibits. This is not investment advice.