0001437749-24-009990nby20231231_10ka.htm
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 UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM 10-K/A
Amendment No. 1
 
(Mark One)
☒
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the fiscal year ended December 31, 2023
--12-31FY2023
 
OR
 
☐
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the transition period from                     to
 
Commission file number 001-33678
 
NOVABAY PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
 
Delaware
68-0454536
(State or other jurisdiction of incorporation or
organization)
(I.R.S. Employer Identification No.)
 
2000 Powell Street, Suite 1150, Emeryville, California 94608
(Address of principal executive offices) (Zip Code)
 
Registrant's Telephone Number, Including Area Code: (510) 899-8800
 
Securities Registered Pursuant to Section 12(b) of the Act:
 
Title of Each Class
Trading Symbol(s)
Name of Each Exchange On Which Registered
Common Stock, par value $0.01 per share
NBY
NYSE American
 
Securities Registered Pursuant to Section 12(g) of the Act: None.
 
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. 
Yes ☐    No ☒
 
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. 
Yes ☐    No ☒
 
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒    No ☐
 
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
 
 
 
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act. (Check one):
 
Large accelerated filer 
☐
Accelerated filer 
☐
Emerging growth company
☐
Non-accelerated filer
☒
Smaller reporting company 
☒
    
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
 
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act by the registered public accounting firm that prepared or issued its audit report. ☐
 
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
 
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes ☐ No ☒
 
As of June 30, 2023, the aggregate market value of the voting stock held by non-affiliates of the registrant, computed by reference to the last sale price of such stock as of such date on the NYSE American, was approximately $3,050,485. This figure excludes an aggregate of 159,265 shares of common stock held by affiliates, including officers and directors, as of June 30, 2023. Exclusion of shares held by any of these persons should not be construed to indicate that such person possesses the power, direct or indirect, to direct or cause the direction of the management or policies of the registrant, or that such person is controlled by or under common control with the registrant.
 
As of March 21, 2024, there were 30,098,150 shares of the registrant’s common stock outstanding.
 
Auditor firm ID Auditor Name Auditor Location
PCAOB ID No. 100 WithumSmith+Brown, PC San Francisco, California
 
DOCUMENTS INCORPORATED BY REFERENCE
 
None.
 
 
 
 
EXPLANATORY NOTE
 
This Amendment No. 1 on Form 10-K/A (this “Amendment”) amends the Annual Report on Form 10-K of NovaBay Pharmaceuticals, Inc. for the fiscal year ended December 31, 2023, as filed with the Securities and Exchange Commission on March 26, 2024 (the “Original Filing”). Exhibit 4.1 (Description of Securities) (the “Description of Securities”) was inadvertently omitted in the Original Filing.
 
This Amendment is being filed solely to file the Description of Securities. No other changes were made to the Original Filing. Further, no attempt has been made in this Amendment to modify or update the other disclosures presented in the Original Filing. This Amendment does not reflect events occurring after the filing of the Form 10-K (i.e., occurring after March 26, 2024) or modify or update those disclosures that may be affected by subsequent events. Accordingly, this Amendment should be read in conjunction with the Original Filing and the registrant’s other filings with the Securities and Exchange Commission.
 
In accordance with Rule 12b-15 of the Securities Exchange Act of 1934, as amended, this Amendment includes new certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002, as amended, dated as of the filing date of this Amendment.
 
 
 
 
PART IV
 
ITEM 15.
EXHIBITS, FINANCIAL STATEMENT SCHEDULES
 
(a) Documents filed as part of this report:
 
(1) Financial Statements. financial statements are not included in this Amendment. See the consolidated financial statements of NovaBay Pharmaceuticals, Inc. included in Part II, Item 8 of the Original Filing.
 
(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
8-K
001-3678
2.1
9/28/2021
  
2.2
8-K
001-3678
2.1
03/14/2024
  
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
11/18/2022
  
3.7
8-K
001-33678
3.1
11/1/2021
  
3.8
8-K
001-33678
3.2
11/18/2022
  
3.9
10-K
001-33678
3.7
6/14/2023
  
4.1
10-K
001-33678
4.1
3/31/2023
  
4.2
8-K
001-33678
4.1
5/18/2020
  
4.3
8-K
001-33678
4.1
7/21/2020
  
4.4
8-K
001-33678
4.1
9/13/2022
  
4.5
8-K
001-33678
4.2
9/13/2022
  
4.6
8-K
001-33678
4.3
9/13/2022
  
4.7
8-K
001-33678
4.4
9/13/2022
  
4.8
8-K
001-33678
4.5
9/13/2022
  
4.9
8-K
001-33678
4.6
9/13/2022
  
4.10
8-K
001-33678
4.1
4/27/2023
  
4.11
8-K
001-33678
4.2
4/27/2023
  
 
 
 
 
4.12
8-K
001-33678
4.3
4/27/2023
  
4.13
8-K
001-33678
4.4
4/27/2023
  
4.14
8-K
001-33678
4.1
12/21/2023
  
4.15
8-K
001-33678
4.2
3/25/2024
  
4.16
8-K
001-33678
4.3
3/25/2024
  
10.1
10-K
001-33678
10.1
3/29/2022
  
10.2+
S-8
333-215680
99.1
1/24/2017
  
10.3+
S-8
333-218469
99.1
6/02/2017
  
10.4+
S-8
333-218469
99.2
6/02/2017
  
10.5+
8-K
001-33678
10.1
2/6/2020
  
10.6+
8-K
001-33678
10.6
1/28/2022
  
10.7+
8-K
001-33678
10.3
12/11/2023
  
10.8+
10-K
001-33678
10.8
3/26/2024
  
10.9
8-K
001-33678
10.1
8/26/2016
  
10.10
8-K
001-33678
10.2
1/28/2022
  
10.11†
10-K
001-33678
10.18
3/27/2012
  
10.12
8-K
001-33678
1.1
5/14/2021
  
10.13
8-K
001-33678
10.1
7/21/2020
  
10.14
8-K
001-33678
10.2
7/21/2020
  
10.15
8-K
001-33678
10.3
7/21/2020
  
10.16
8-K
001-33678
1.1
11/01/2021
  
10.17
8-K
001-33678
10.1
11/01/2021
  
10.18
8-K
001-33678
10.1
9/13/2022
  
10.19
8-K
001-33678
10.2
9/13/2022
  
10.20
8-K
001-33678
10.3
9/13/2022
  
10.21
8-K
001-33678
10.4
9/13/2022
  
10.22+
8-K
001-33678
10.8
3/31/2023
  
10.23
8-K
001-33678
10.1
12/21/2023
  
10.24*
8-K
001-33678
10.1
1/05/2024
  
10.25
8-K
001-33678
10.1
4/27/2023
  
10.26*
8-K
001-33678
10.2
4/27/2023
  
10.27*
8-K
001-33678
10.3
3/25/2024
  
10.28
8-K
001-33678
10.3
4/27/2023
  
10.29*
8-K
001-33678
10.4
3/25/2024
  
 
 
 
 
10.30
8-K
001-33678
10.4
4/27/2023
  
10.31
8-K
001-33678
10.5
4/27/2023
  
21
10-K
001-33678
21
3/26/2024
  
23.1
10-K
001-33678
23.1
3/26/2024
  
31.1
        
X
31.2
        
X
32.1
        
X
32.2
        
X
97
10-K 
001-33678
97
3/26/2024
  
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.
 
 
 
 
SIGNATURES
 
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Form 10-K/A to be signed on its behalf by the undersigned, thereunto duly authorized.
 
 
Date: March 29, 2024
  
 
By:
/s/   Justin Hall 
   
Justin Hall 
Chief Executive Officer, General Counsel and Director
(principal executive officer)
 
 
0001437749-24-009990ex_647372.htm

Exhibit 31.1

 

CERTIFICATION PURSUANT TO EXCHANGE ACT

RULE 13a-14(a)/15d-14(a), AS ADOPTED PURSUANT TO

SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

 

I, Justin Hall, certify that:

 

1. I have reviewed this Form 10-K/A of NovaBay Pharmaceuticals, Inc.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

Date: March 29, 2024

 

/s/ Justin Hall

  

Justin Hall

  

Chief Executive Officer, General Counsel

and Director (principal executive officer)

  

 

 
0001437749-24-009990ex_647369.htm

Exhibit 31.2

 

CERTIFICATION PURSUANT TO EXCHANGE ACT

RULE 13a-14(a)/15d-14(a), AS ADOPTED PURSUANT TO

SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

 

I, Tommy Law, certify that:

 

1. I have reviewed this Form 10-K/A of NovaBay Pharmaceuticals, Inc.;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

Date: March 29, 2024

 

/s/ Tommy Law

  

Tommy Law

  

Interim Chief Financial Officer

  

(principal financial officer)

  

 

 
0001437749-24-009990ex_647370.htm

Exhibit 32.1

 

CERTIFICATION PURSUANT TO 18 U.S.C. §1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the annual report of NovaBay Pharmaceuticals, Inc. (the Company) on Form 10-K/A for the fiscal year ended December 31, 2023 (the Report), I, Justin Hall, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge:

 

1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Date: March 29, 2024

 

/s/ Justin Hall 

  

Justin Hall

  

Chief Executive Officer, General Counsel

and Director

  

 

This Certification is made solely for the purpose of 18 USC Section 1350, subject to the knowledge standard contained therein, and not for any other purpose.

 

 
0001437749-24-009990ex_647371.htm

Exhibit 32.2

 

CERTIFICATION PURSUANT TO 18 U.S.C. §1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the annual report of NovaBay Pharmaceuticals, Inc. (the Company) on Form 10-K/A for the fiscal year ended December 31, 2023 (the Report), I, Tommy Law, Interim Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge:

 

1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Date: March 29, 2024

 

/s/ Tommy Law

  

Tommy Law

Interim Chief Financial Officer

 

This Certification is made solely for the purpose of 18 USC Section 1350, subject to the knowledge standard contained therein, and not for any other purpose.