As filed with the Securities and Exchange Commission on July 1, 2010
Registration No. 333-159917
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
 
Washington, D.C. 20549
 
__________________
 
Post - Effective Amendment No. 2 to
 
FORM S-3
 
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
 
NovaBay Pharmaceuticals, Inc.
(Exact name of Registrant as specified in its charter)
 
Delaware
(State or jurisdiction of
incorporation or organization)
2834
(Primary Standard Industrial
Classification Code Number)
68-0454536
(I.R.S. Employee
Identification No.)
     
5980 Horton Street, Suite 550
Emeryville, CA  94608
(Address of principal executive offices)
 
(510) 899-8800
(Registrant’s telephone
number, including area code)

Ramin (“Ron”) Najafi, Ph.D.
Chief Executive Officer
NovaBay Pharmaceuticals, Inc.
5980 Horton Street, Suite 550
Emeryville, CA  94608
(510) 899-8800
(Name, address and telephone number of agent for service)
 
__________________
 
Copies to :
 
 
Brett D. White, Esq.
Cooley llp
3175 Hanover Street
Palo Alto, CA 94304-1130
(650) 843-5000
 
__________________
 
Approximate date of proposed sale to the public : From time to time, after this registration statement becomes effective.
 
 
 
 
 
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.   ¨
 
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box.   x
 
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨
 
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨
 
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.   ¨
 
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.   ¨
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
 
 
Large accelerated filer   o
Accelerated filer   o
 
Non-accelerated filer   o (Do not check if a smaller reporting company)
Smaller reporting company   x
 
CALCULATION OF REGISTRATION FEE
       
Title of each class of
securities to be registered
Amount to be
registered(1)
Proposed maximum
aggregate offering price
Amount of
registration fee (1)
See Below (1)
NA
NA
NA
 
(1)
No additional securities are to be registered, and registration fees were paid upon filing of the original Registration Statement on Form S-3 (File No. 333-159917). Therefore no further registration fee is required.
 
__________________
 
 
 
 
 
Post-Effective Amendment No. 2 to Form S-3
 
EXPLANATORY STATEMENT
 
Reincorporation; Assumption of Registration Statement
 
This Post - Effective Amendment is being filed pursuant to Rule 414 under the Securities Act of 1933, as amended (the “Securities Act”), and constitutes Post - Effective Amendment No. 2 to the registration statement on Form S-3 (File Nos. 333-159917) (the “Registration Statement”) by NovaBay Pharmaceuticals, Inc., a California corporation (“NovaBay CA”) and the predecessor of NovaBay Pharmaceuticals, Inc., a Delaware corporation (“NovaBay DE” or the “Registrant”). NovaBay DE succeeded to the interests of NovaBay CA following a reincorporation effected pursuant to an Agreement and Plan of Merger, dated as of June 25, 2010 (the “Merger Agreement”), between NovaBay DE and NovaBay CA. The Merger Agreement provided for, among other things, the merger of NovaBay CA with and into NovaBay DE, a wholly owned subsidiary of NovaBay CA (the “Merger”). The Merger Agreement was approved by the shareholders of NovaBay CA at the annual meeting of shareholders on June 16, 2010 for which proxies were solicited pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
 
As a result of the Merger, upon the effective date of the Merger, each outstanding share of NovaBay CA common stock, par value $0.01, was automatically converted into one share of common stock, $0.01 par value, of the Registrant.  Immediately prior to the consummation of the Merger, the Registrant had nominal assets and liabilities.
 
In accordance with paragraph (d) of Rule 414 of the Securities Act, except as modified by this Post - Effective Amendment No. 2, the Registrant, as successor issuer to NovaBay CA, hereby expressly adopts the Registration Statement as its own registration statement for all purposes of the Securities Act and the Exchange Act.  The applicable registration fees were paid at the time of the original filing of this Registration Statement.
 
PART II
 
INFORMATION NOT REQUIRED IN PROSPECTUS
 
Item 15.  Indemnification of Directors and Officers.
 
The Company’s certificate of incorporation provides that, except to the extent prohibited by the Delaware General Corporation Law (“DGCL”), NovaBay DE’s directors shall not be liable to the registrant or their respective stockholders for monetary damages for any breach of fiduciary duty as directors of the registrant. Under the DGCL, the directors have a fiduciary duty to the Company, which is not eliminated by these provisions of the certificate of incorporation and, in appropriate circumstances, equitable remedies such as injunctive or other forms of nonmonetary relief will remain available. This provision does not affect the directors’ responsibilities under any other laws, such as the Federal securities laws or state or Federal environmental laws.
 
Section 145 of the DGCL empowers a corporation to indemnify its directors and officers and to purchase insurance with respect to liability arising out of their capacity or status as directors and officers. The DGCL provides further that the indemnification permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under the corporation’s bylaws, any agreement, a vote of stockholders or otherwise. The Company’s bylaws provide that it shall indemnify, to the fullest extent permitted by the DGCL and applicable law, as may be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was one of NovaBay DE’s directors or officers or is or was serving at the Company’s request as a director, officer, employee or agent of another registrant or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) incurred by such person.
 
 
II-1
 
 
NovaBay DE intends to enter into agreements to indemnify its directors and certain of its officers in addition to the indemnification provided for in the Company’s bylaws. These agreements will, among other things, indemnify the Company’s directors and some of its officers for certain expenses (including attorneys fees), judgments, fines and settlement amounts incurred by such person in any action or proceeding, including any action by or in the Company’s right, on account of services by that person as a director or officer of the Company or as a director or officer of any of its subsidiaries, or as a director or officer of any other company or enterprise that the person provides services to at the Company’s request.
 
NovaBay DE also has a policy of liability insurance that insures its directors and certain of its officers against the cost of defense, settlement or payment of a judgment under certain circumstances.
 
Item 16.  Exhibits
 
The following exhibits are filed with this registration statement.
 
EXHIBIT
NUMBER
 
DESCRIPTION OF DOCUMENT
2.1
 
Agreement and Plan of Merger between NovaBay Pharmaceuticals, Inc., a California corporation, and NovaBay Pharmaceuticals, Inc., a Delaware corporation, dated as of June 25, 2010
3.1(1)
 
Amended and Restated Certificate of Incorporation of NovaBay Pharmaceuticals, Inc.
3.2(1)
 
Bylaws of NovaBay Pharmaceuticals, Inc.
4.1(2)
 
Specimen Preferred Stock Certificate and Form of Certificate of Designations
4.2(3)
 
Form of Indenture
4.3(2)
 
Form of Debt Securities
4.4(3)
 
Form of Common Stock Warrant Agreement, including Form of Warrant Certificate
4.5(3)
 
Form of Preferred Stock Warrant Agreement, including Form of Warrant Certificate
4.6(3)
 
Form of Debt Securities Warrant Agreement, including Form of Warrant Certificate
4.7(2)
 
Form of Unit Agreement
5.1
 
Opinion of Cooley llp
12.1(3)
 
Statement Regarding Computation of Ratio of Earnings to Fixed Charges and Ratio of Combined Fixed Charges and Preferred Stock Dividends
23.1
 
Consent of Davidson & Company LLP
23.2
 
Consent of Cooley llp (included in Exhibit 5.1)
24.1
 
Power of Attorney (included in Part II of this Registration Statement)
25.1(4)
 
Statement of Eligibility of trustee on Form T-1
 
 
(1)
Incorporated by reference to the exhibit of the same number from the Registrant’s Current Report on Form 8-K as filed with the SEC on June 29, 2010.
 
 
(2)
If applicable, to be filed by amendment or by a report filed under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference.
 
 
(3)
Previously filed with the original filing of this registration statement.
 
 
(4)
To be filed pursuant to Rule 305(b)(2) of the Trust Indenture Act.
 
 
II-2
 
 
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 this 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
 
(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 this registration statement;
 
provided, however , that subparagraphs (i), (ii) and (iii) above shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in the periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a prospectus filed pursuant to Rule 424(b) that is part of 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 a 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; and
 
(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 the 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.
 
(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 to 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:
 
 
II-3
 
 
(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, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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.
 
           (7)      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 existing provisions or arrangements whereby the Registrant may indemnify a director, officer or controlling person of the Registrant against liabilities arising under the Securities Act of 1933, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission 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.
 
           (8)      That for purposes of determining any liability under the Securities Act, (i) the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under the Securities Act shall be deemed to be a part of the registration statement as of the time it was declared effective; and (ii) each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offing of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
           (9)      To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
 
           (10)    That, for the 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 Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
 
II-4
 

 
SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Post - Effective Amendment No. 2 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Emeryville, State of California on June 30, 2010.
 
 
NovaBay Pharmaceuticals, Inc.
 
       
 
By:
/s/ Ramin Najafi  
   
Ramin (“Ron”) Najafi, Ph.D.
Chairman of the Board, Chief Executive Officer and President
 
 
 
POWER OF ATTORNEY
 
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers and directors does hereby constitute and appoint Ramin Najafi, Ph.D., Thomas J. Paulson and Theresa Granados Uriarte, 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 either 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 either 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 Post - Effective Amendment No. 2 has been signed by the following persons on behalf of the Registrant in the capacities and on the date indicated:
 
Signature
 
Title
 
Date
         
/s/ Ramin Najafi
 
Chairman of the Board, Chief Executive Officer
 
June 30, 2010
Ramin (“Ron”) Najafi, Ph.D.
  and President (principal executive officer)    
         
/s/ Thomas J. Paulson
 
Chief Financial Officer and Treasurer
 
June 30, 2010
Thomas J. Paulson
  (principal financial and accounting officer)    
         
/s/ Charles J. Cashion
 
Director
 
June 30, 2010
Charles J. Cashion
       
         
/s/ Anthony Dailley
 
Director
 
June 30, 2010
Anthony Dailley, D.D.S.
       
         
   
Director
 
_______ ___, 2010
Paul E. Freiman
       
         
   
Director
 
_______ ___, 2010
Harry F. Hixson, Jr., Ph.D.
       
         
/s/ T. Alex McPherson
 
Director
 
June 30, 2010
T. Alex McPherson, M.D., Ph.D.
       
         
/s/ Robert R. Tufts
 
Director
 
June 30, 2010
Robert R. Tufts
       
         
/s/ Tony D.S. Wicks
 
Director
 
June 30, 2010
Tony D.S. Wicks
       
         

 
II-5
 
 
EXHIBIT INDEX
 
EXHIBIT
NUMBER
 
DESCRIPTION OF DOCUMENT
2.1
 
Agreement and Plan of Merger between NovaBay Pharmaceuticals, Inc., a California corporation, and NovaBay Pharmaceuticals, Inc., a Delaware corporation, dated as of June 25, 2010
3.1(1)
 
Amended and Restated Certificate of Incorporation of NovaBay Pharmaceuticals, Inc.
3.2(1)
 
Bylaws of NovaBay Pharmaceuticals, Inc.
4.1(2)
 
Specimen Preferred Stock Certificate and Form of Certificate of Designations
4.2(3)
 
Form of Indenture
4.3(2)
 
Form of Debt Securities
4.4(3)
 
Form of Common Stock Warrant Agreement, including Form of Warrant Certificate
4.5(3)
 
Form of Preferred Stock Warrant Agreement, including Form of Warrant Certificate
4.6(3)
 
Form of Debt Securities Warrant Agreement, including Form of Warrant Certificate
4.7(2)
 
Form of Unit Agreement
5.1
 
Opinion of Cooley llp
12.1(3)
 
Statement Regarding Computation of Ratio of Earnings to Fixed Charges and Ratio of Combined Fixed Charges and Preferred Stock Dividends
23.1
 
Consent of Davidson & Company LLP
23.2
 
Consent of Cooley llp (included in Exhibit 5.1)
24.1
 
Power of Attorney (included in Part II of this Registration Statement)
25.1(4)
 
Statement of Eligibility of trustee on Form T-1
 
 
(1)
Incorporated by reference to the exhibit of the same number from the Registrant’s Current Report on Form 8-K as filed with the SEC on June 29, 2010.
 
 
(2)
If applicable, to be filed by amendment or by a report filed under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference.
 
 
(3)
Previously filed with the original filing of this registration statement.
 
 
(4)
To be filed pursuant to Rule 305(b)(2) of the Trust Indenture Act.
 
EXHIBIT 2.1
 
 
 
AGREEMENT AND PLAN OF MERGER
OF NOVABAY PHARMACEUTICALS, INC.
(a California corporation)
AND
NOVABAY PHARMACEUTICALS, INC.
(a Delaware corporation)

 
This Agreement and Plan of Merger , dated as of June 25, 2010 (the “ Agreement ”), is between NovaBay Pharmaceuticals, Inc., a California corporation (“ NovaBay CA ”), and NovaBay Pharmaceuticals, Inc., a Delaware corporation and wholly-owned subsidiary of NovaBay (“ NovaBay DE ”). NovaBay CA and NovaBay DE are sometimes referred to herein as the “ Constituent Corporations .”
 
RECITALS
 
A. NovaBay DE is a corporation duly organized and existing under the laws of the State of Delaware and has an authorized capital of 70,000,000 shares, 65,000,000 of which are designated common stock, par value $0.01 per share, and 5,000,000 of which are designated preferred stock, par value $0.01 per share. The preferred stock of NovaBay DE is undesignated as to series, rights, preferences, privileges or restrictions. As of June 23, 2010, 100 shares of common stock were issued and outstanding, all of which were held by NovaBay CA, and no shares of preferred stock were issued and outstanding.
 
B. NovaBay CA is a corporation duly organized and existing under the laws of the State of California and has an authorized capital of 70,000,000 shares, 65,000,000 of which are designated common stock, par value $0.01 per share, and 5,000,000 of which are designated preferred stock, par value $0.01 per share. The preferred stock of NovaBay CA is undesignated as to series, rights, preferences, privileges or restrictions. As of June 23, 2010, 23,334,188 shares of common stock and no shares of preferred stock were issued and outstanding.
 
C. The Board of Directors of NovaBay CA has determined that, for the purpose of effecting the reincorporation of NovaBay CA in the State of Delaware, it is advisable and in the best interests of NovaBay CA and its shareholders that NovaBay CA merge with and into NovaBay DE upon the terms and conditions herein provided.
 
D. The respective Boards of Directors of NovaBay DE and NovaBay CA have approved and declared the advisability of this Agreement, and have directed that this Agreement be submitted to a vote of their respective sole shareholder and shareholders and executed by the undersigned officers.
 
AGREEMENT
 
In consideration of the mutual agreements and covenants set forth herein, NovaBay DE and NovaBay CA hereby agree, subject to the terms and conditions hereinafter set forth, as follows:
 
1.      MERGER
 
1.1     Merger.   In accordance with the provisions of this Agreement, the Delaware General Corporation Law (“ DGCL ”) and the California General Corporation Law (“ CGCL ”), NovaBay CA shall be merged with and into NovaBay DE (the “ Merger ”), the separate existence of NovaBay CA shall cease and NovaBay DE shall survive the Merger and shall continue to be governed by the laws of the State of Delaware, and NovaBay DE shall be, and is herein sometimes referred to as, the “Surviving Corporation”. The name of the Surviving Corporation shall be “NovaBay Pharmaceuticals, Inc.”
 
1.2     Filing and Effectiveness.   Subject to applicable law, the Merger shall become effective when the following actions shall have been completed:
 
 
1
 
 
(a)     This Agreement shall have been adopted by the sole shareholder of NovaBay DE and the principal terms of this Agreement shall have been approved by the shareholders of NovaBay CA in accordance with the requirements of the DGCL and the CGCL, respectively;
 
(b)     All of the conditions precedent to the consummation of the Merger specified in this Agreement shall have been satisfied or duly waived by the party entitled to satisfaction thereof; and
 
(c)     A certificate of merger meeting the requirements of the DGCL (the “ Certificate of Merger ”) shall have been filed with the Secretary of State of the State of Delaware and this Agreement, together with a Certificate of Ownership as provided in Section 1110 of the CGCL or the Certificate of Merger, shall have been filed with the Secretary of State of the State of California or, in the case of the applicable requirements of California law, as otherwise provided by the CGCL.
 
The date and time when the Merger shall become effective, as aforesaid, is herein called the “Effective Date of the Merger.”
 
1.3     Effect of the Merger.  Upon the Effective Date of the Merger, the separate existence of NovaBay CA shall cease and NovaBay DE, as the Surviving Corporation, (i) shall continue to possess all of its assets, rights, powers and property as constituted immediately prior to the Effective Date of the Merger, (ii) shall be subject to all actions previously taken by its and NovaBay CA’s Board of Directors, (iii) shall succeed, without other transfer, to all of the assets, rights, powers and property of NovaBay CA in the manner more fully set forth in Section 259 of the DGCL, (iv) shall continue to be subject to all of the debts, liabilities and obligations of NovaBay DE as constituted immediately prior to the Effective Date of the Merger, and (v) shall succeed, without other transfer, to all of the debts, liabilities and obligations of NovaBay CA in the same manner as if NovaBay DE had itself incurred them, all as more fully provided under the applicable provisions of the DGCL and the CGCL.
 
2.      CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
 
2.1     Certificate of Incorporation.   The Certificate of Incorporation of NovaBay DE as in effect immediately prior to the Effective Date of the Merger shall continue in full force and effect as the Certificate of Incorporation of the Surviving Corporation until duly amended in accordance with the provisions thereof and applicable law.
 
2.2     Bylaws.  The Bylaws of NovaBay DE as in effect immediately prior to the Effective Date of the Merger shall continue in full force and effect as the Bylaws of the Surviving Corporation until duly amended in accordance with the provisions thereof and applicable law.
 
2.3     Directors and Officers.   The directors and officers of NovaBay CA immediately prior to the Effective Date of the Merger shall be the directors and officers of the Surviving Corporation serving in the same class of directors until their successors shall have been duly elected and qualified or until as otherwise provided by law or the Certificate of Incorporation of the Surviving Corporation or the Bylaws of the Surviving Corporation.
 
3.      MANNER OF CONVERSION OF STOCK
 
3.1     NovaBay CA Common Stock.  Upon the Effective Date of the Merger, each share of NovaBay CA common stock, $0.01 par value, issued and outstanding immediately prior thereto shall, by virtue of the Merger and without any action by the Constituent Corporations, the holder of such shares or any other person, be converted into one (1) fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation.
 
3.2     NovaBay CA Options, Equity Incentive Plan Awards and Restricted Stock.
 
(a)     Upon the Effective Date of the Merger, the Surviving Corporation shall assume and continue the 2007 Omnibus Incentive Plan, 2002 Stock Option Plan (to the extent stock awards continue to remain outstanding and subject to the terms of such plan) and 2005 Stock Option Plan (to the extent stock awards continue to remain outstanding and subject to the terms of such plan), the Director Compensation Plan and all other employee benefit plans of NovaBay CA (collectively, the “ Incentive Plans ”). Each outstanding and unexercised option or other right to purchase or receive, or a security convertible into, NovaBay CA common stock shall become an option or right to purchase or receive, or a security convertible into, the Surviving Corporation’s common stock on the basis of one share of the Surviving Corporation’s common stock for each share of NovaBay CA common stock issuable pursuant to any such option, right to purchase or convertible security, on the same terms and conditions and at an exercise price per share equal to the exercise price applicable to any such NovaBay CA option, stock purchase right or convertible security at the Effective Date of the Merger. There are no options, purchase rights for or securities convertible into preferred stock of NovaBay CA under the Incentive Plans.
 
 
2
 
 
(b)     A number of shares of the Surviving Corporation’s common stock shall be reserved for issuance under the Incentive Plans equal to the number of shares of NovaBay CA common stock so reserved immediately prior to the Effective Date of the Merger.
 
3.3     NovaBay DE Common Stock.   Upon the Effective Date of the Merger, each share of common stock, par value $0.01 per share, of NovaBay DE issued and outstanding immediately prior thereto shall, by virtue of the Merger and without any action by NovaBay DE, the holder of such shares or any other person, be canceled and returned to the status of authorized but unissued shares, without any consideration being delivered in respect thereof.
 
3.4     Exchange of Certificates.  After the Effective Date of the Merger, each holder of a certificate representing shares of NovaBay CA common stock outstanding immediately prior to the Effective Date of the Merger may, at such shareholder’s option, surrender the same for cancellation to an exchange agent designated by the Surviving Corporation (the “ Exchange Agent ”), and each such holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of shares of the Surviving Corporation’s common stock into which the shares formerly represented by the surrendered certificate were converted as herein provided. Unless and until so surrendered, each certificate representing shares of NovaBay CA common stock outstanding immediately prior to the Effective Date of the Merger shall be deemed for all purposes, from and after the Effective Date of the Merger, to represent the number of shares of the Surviving Corporation’s common stock into which such shares of NovaBay CA common stock were converted in the Merger.
 
The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any shares of stock represented by such certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of common stock of the Surviving Corporation represented by such certificate as provided above.
 
Each certificate representing common stock of the Surviving Corporation so issued in the Merger shall bear the same legends, if any, with respect to the restrictions on transferability as the certificates of NovaBay CA so converted and given in exchange therefor, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws, or other such additional legends as agreed upon by the holder and the Surviving Corporation.
 
4.      CONDITIONS
 
4.1     The obligations of NovaBay CA under this Agreement shall be conditioned upon the occurrence of the following events:
 
(a)     Shareholder Approval.   The principal terms of this Merger Agreement shall have been duly approved by the shareholders of NovaBay CA;
 
(b)     Consents, Approvals or Authorizations.   Any consents, approvals or authorizations that NovaBay CA deems necessary or appropriate to be obtained in connection with the consummation of the Merger shall have been obtained, including, but not limited to, approvals with respect to federal and state securities laws; and
 
 
3
 
 
(c)     Stock Market Listing.   The Surviving Corporation’s common stock to be issued and reserved for issuance in connection with the Merger shall have been approved for listing by the NYSE Amex.
 
5.      GENERAL
 
5.1     Covenants of NovaBay DE .   NovaBay DE covenants and agrees that it will, on or before the Effective Date of the Merger:
 
(a)     Qualify to do business as a foreign corporation in the State of California and in connection therewith appoint an agent for service of process as required under the provisions of Section 2105 of the CGCL;
 
(b)     File the Certificate of Merger with the Secretary of State of the State of Delaware;
 
(c)     File this Agreement, together with the Certificate of Ownership, or the Certificate of Merger, with the Secretary of State of the State of California;
 
(d)     Take such other actions as may be required by the CGCL.
 
5.2     Further Assurances.  From time to time, as and when required by NovaBay DE or by its successors or assigns, there shall be executed and delivered on behalf of NovaBay CA such deeds and other instruments, and there shall be taken or caused to be taken by NovaBay DE and NovaBay CA such further and other actions as shall be appropriate or necessary to vest or perfect in or conform of record or otherwise by NovaBay DE the title to and possession of all the property, interests, assets, rights, privileges, immunities, powers, franchises and authority of NovaBay CA and otherwise to carry out the purposes of this Agreement, and the officers and directors of NovaBay DE are fully authorized in the name and on behalf of NovaBay CA or otherwise to take any and all such action and to execute and deliver any and all such deeds and other instruments.
 
5.3     Abandonment.  At any time before the Effective Date of the Merger, this Agreement may be terminated and the Merger may be abandoned for any reason whatsoever by the Board of Directors of either NovaBay CA or of NovaBay DE, or of both, notwithstanding the approval of the principal terms of this Agreement by the shareholders of NovaBay CA or the adoption of this Agreement by the sole shareholder of NovaBay DE, or by both.
 
5.4     Amendment.  The Boards of Directors of the Constituent Corporations may amend this Agreement at any time prior to the Effective Date of the Merger, provided that an amendment made subsequent to applicable shareholder or shareholder approval shall not, unless approved by such shareholders or shareholders as required by law:
 
(a)     Alter or change the amount or kind of shares, securities, cash, property and/or rights to be received in exchange for or on conversion of all or any of the shares of any class or series thereof of such Constituent Corporation;
 
(b)     Alter or change any term of the Certificate of Incorporation of the Surviving Corporation to be effected by the Merger; or
 
(c)     Alter or change any of the terms and conditions of this Agreement if such alteration or change would adversely affect the holders of any class or series of capital stock of any Constituent Corporation.
 
5.5     Governing Law.  This Agreement shall in all respects be construed, interpreted and enforced in accordance with and governed by the laws of the State of Delaware and, so far as applicable, the merger provisions of the CGCL.
 
5.6     Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.
 
 
4
 
 
IN WITNESS WHEREOF, this Agreement having first been approved by the resolutions of the Board of Directors of NovaBay Pharmaceuticals, Inc., a California corporation, and NovaBay Pharmaceuticals, Inc., a Delaware corporation, is hereby executed on behalf of each of such two corporations and attested by their respective officers thereunto duly authorized.
 
NOVABAY PHARMACEUTICALS, INC. , a California corporation
   
By:
 
/s/ Ramin Najafi
   
Ramin Najafi
President and Chief Executive Officer
   
By:
 
/s/ Thomas J. Paulson
   
Thomas J. Paulson
Chief Financial Officer and Secretary
 
NOVABAY PHARMACEUTICALS, INC. , a Delaware corporation
   
By:
 
/s/ Ramin Najafi
   
Ramin Najafi
President and Chief Executive Officer
 
 
5
 
 
EXHIBIT 5.1
Brett D. White
(650) 843-5191
whitebd@cooley.com
VIA FACSIMILE
 
 
June 30, 2010
 
NovaBay Pharmaceuticals, Inc.
5980 Horton Street, Suite 550
Emeryville, CA 94608
 
RE:
Universal Shelf Registration Statement
 
Ladies and Gentlemen:
 
We have acted as counsel to NovaBay Pharmaceuticals, Inc., a Delaware corporation (the “ Company ”), in connection with its filing of Post-Effective Amendment No. 2 to the registration statement on Form S-3, File No. 333-159917 (the “ Registration Statement ”), pursuant to Rule 414(d) of the Securities Act of 1933, as amended (the “ Securities Act ”). The Company has provided us with a prospectus (the “ Prospectus ”), which forms part of the Registration Statement. The Prospectus provides that it will be supplemented in the future by one or more prospectus supplements (each, a “ Prospectus Supplement ”). The Registration Statement, including the Prospectus as supplemented from time to time by one or more Prospectus Supplements, will provide for the registration by the Company of:
 
•           shares of common stock, $0.01 par value per share, of the Company (the “ Common Stock ”);
 
•           shares of preferred stock, $0.01 par value per share, of the Company (the “ Preferred Stock ”);
 
•           debt securities, in one or more series (the “ Debt Securities ”), which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of Debt Securities thereunder, by and between a trustee to be selected by the Company (the “ Trustee ”) and the Company, in the form filed as Exhibit 4.3 to the Registration Statement (the “ Indenture ”);
 
•           warrants to purchase Common Stock, Preferred Stock, or Debt Securities (the “ Warrants ”), which may be issued under warrant agreements, to be dated on or about the date of the first issuance of the applicable Warrants thereunder, by and between a warrant agent to be selected by the Company (the “ Warrant Agent ”) and the Company, in the forms filed as Exhibits 4.5, 4.6 and 4.7 to the Registration Statement (each, a “ Warrant Agreement ”); and
 
•           units comprised of one or more Debt Securities, shares of Common Stock, shares of Preferred Stock, and Warrants, in any combination (the “ Units ”), which may be issued under unit agreements, to be dated on or about the date of the first issuance of the applicable Units thereunder, by and between a unit agent to be selected by the Company and the Company (each, a “ Unit Agreement ”).
 
 
 
FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155  T: (650) 843-5000  F: (650) 849-7400  WWW.COOLEY.COM
 
 
 
NovaBay Pharmaceuticals, Inc.
June 30, 2010
Page Two
 
 
 
The Common Stock, the Preferred Stock, the Debt Securities, the Warrants and the Units are collectively referred to herein as the “ Securities .” The Securities are being registered for offering and sale from time to time pursuant to Rule 415 under the Securities Act. The aggregate public offering price of the Securities being registered will be $20,000,000.
 
The Company is the successor-in-interest of NovaBay Pharmaceuticals, Inc. (“ NovaBay CA ”), a California corporation,pursuant to a reincorporation merger whereby NovaBay CA merged with and into the Company, its wholly owned Delaware subsidiary, with the Company being the surviving corporation. As successor-in-interest to NovaBay CA under Rule 414(d) under the Securities Act, the Company expressly adopts the Registration Statement of NovaBay CA as its own registration statement for all purposes of the Securities Act by filing Post-Effective Amendment No. 2 to the Registration Statement.
 
In connection with this opinion, we have examined and relied upon the originals, or copies certified to our satisfaction, of such records, documents, certificates, opinions, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. As to certain factual matters, we have relied upon certificates of the officers of the Company and have not independently sought to verify such matters.
 
In rendering this opinion, we have assumed the genuineness and authenticity of all signatures on original documents; the authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents where authorization, execution and delivery are prerequisites to the effectiveness of such documents. With respect to our opinion as to the Common Stock, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Common Stock are authorized and available for issuance and that the consideration for the issuance and sale of the Common Stock (or Preferred Stock or Debt Securities convertible into Common Stock) is in an amount that is not less than the par value of the Common Stock. With respect to our opinion as to the Preferred Stock, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Preferred Stock are authorized, designated and available for issuance and that the consideration for the issuance and sale of the Preferred Stock (or Debt Securities convertible into Preferred Stock or Warrants exercisable for Preferred Stock) is in an amount that is not less than the par value of the Preferred Stock.  We have also assumed that any Warrants offered under the Registration Statement, and the related Warrant Agreement, as applicable, will be executed in the forms filed as exhibits to the Registration Statement or incorporated by reference therein. We have also assumed that: (i) with respect to Securities being issued upon conversion of any convertible Preferred Stock, the applicable Preferred Stock will be duly authorized, validly issued, fully paid and nonassessable; and (ii) with respect to any Securities being issued upon conversion of any convertible Debt Securities or upon exercise of any Warrants, the applicable convertible Debt Securities or Warrants will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
 
 
 
FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155  T: (650) 843-5000  F: (650) 849-7400  WWW.COOLEY.COM
 
 
 
NovaBay Pharmaceuticals, Inc.
June 30, 2010
Page Three
 
 
 
Our opinion herein is expressed solely with respect to the federal laws of the United States and the Delaware General Corporation Law and, as to the Debt Securities and Warrants constituting valid and legally binding obligations of the Company, solely with respect to the laws of the State of New York. Our opinion is based on these laws as in effect on the date hereof. We express no opinion as to whether the laws of any jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.
 
On the basis of the foregoing and in reliance thereon, and subject to the qualifications herein stated, we are of the opinion that:
 
1.  
With respect to the Common Stock offered under the Registration Statement, provided that (i) the Registration Statement and any required post-effective amendment thereto have all become effective under the Securities Act and the Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the issuance of the Common Stock has been duly authorized by all necessary corporate action on the part of the Company; (iii) the issuance and sale of the Common Stock do not violate any applicable law, are in conformity with the Company’s then operative Amended and Restated Articles of Incorporation, as amended (the “ Articles of Incorporation ”) and Amended and Restated Bylaws (the “ Bylaws ”), do not result in a default under or breach of any agreement or instrument binding upon the Company and comply with any applicable requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; and (iv) the certificates for the Common Stock have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered to the purchasers thereof against payment therefor, then the Common Stock, when issued and sold as contemplated in the Registration Statement, the Prospectus and the related Prospectus Supplement(s) and in accordance with any applicable duly authorized, executed and delivered purchase, underwriting or similar agreement, or upon conversion of any convertible Preferred Stock or convertible Debt Securities in accordance with their terms, or upon exercise of any Warrants in accordance with their terms, will be duly authorized, validly issued, fully paid and nonassessable.
 
2.  
With respect to the Preferred Stock offered under the Registration Statement, provided that (i) the Registration Statement and any required post-effective amendment thereto have all become effective under the Securities Act and the Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the terms and issuance of the Preferred Stock have been duly authorized by all necessary corporate action on the part of the Company; (iii) the terms of the shares of Preferred Stock and their issuance and sale do not violate any applicable law, are in conformity with the Articles of Incorporation and Bylaws, do not result in a default under or breach of any agreement or instrument binding upon the Company and comply with any applicable requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; and (iv) the certificates for the Preferred Stock have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered to the purchasers thereof against payment therefor, then the Preferred Stock, when issued and sold as contemplated in the Registration Statement, the Prospectus and the related Prospectus Supplement(s) and in accordance with any applicable duly authorized, executed and delivered purchase, underwriting or similar agreement, or upon conversion of any convertible Debt Securities in accordance with their terms, or upon exercise of any Warrants in accordance with their terms, will be duly authorized, validly issued, fully paid and nonassessable.
 
 
 
FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155  T: (650) 843-5000  F: (650) 849-7400  WWW.COOLEY.COM
 
 
 
NovaBay Pharmaceuticals, Inc.
June 30, 2010
Page Four
 
 
 
3.  
With respect to any series of the Debt Securities issued under the Indenture and offered under the Registration Statement, provided that (i) the Registration Statement and any required post-effective amendment thereto have all become effective under the Securities Act and the Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the Indenture has been duly authorized by the Company and the Trustee by all necessary corporate action; (iii) the Indenture, in substantially the form filed as an exhibit to the Registration Statement, has been duly executed and delivered by the Company and the Trustee; (iv) the issuance and terms of the Debt Securities have been duly authorized by the Company by all necessary corporate action; (v) the terms of the Debt Securities and of their issuance and sale have been duly established in conformity with the Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company, so as to be in conformity with the Articles of Incorporation and Bylaws, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; and (vi) the Debt Securities have been duly executed and delivered by the Company and authenticated by the Trustee pursuant to the Indenture and delivered against payment therefor, then the Debt Securities, when issued and sold in accordance with the Indenture and a duly authorized, executed and delivered purchase, underwriting or similar agreement, or upon exercise of any Warrants in accordance with their terms, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
 
4.  
With respect to the Warrants issued under a Warrant Agreement and offered under the Registration Statement, provided that (i) the Registration Statement and any required post-effective amendment thereto have all become effective under the Securities Act and the Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (ii) the Warrant Agreement has been duly authorized by the Company and the Warrant Agent by all necessary corporate action; (iii) the Warrant Agreement has been duly executed and delivered by the Company and the Warrant Agent; (iv) the issuance and terms of the Warrants have been duly authorized by the Company by all necessary corporate action; (v) the terms of the Warrants and of their issuance and sale have been duly established in conformity with the Warrant Agreement and as described in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company, so as to be in conformity with the Articles of Incorporation and Bylaws, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; and (vi) the Warrants have been duly executed and delivered by the Company and authenticated by the Warrant Agent pursuant to the Warrant Agreement and delivered against payment therefor, then the Warrants, when issued and sold in accordance with the Warrant Agreement and a duly authorized, executed and delivered purchase, underwriting or similar agreement, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
 
 
 
FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155  T: (650) 843-5000  F: (650) 849-7400  WWW.COOLEY.COM
 
 
 
NovaBay Pharmaceuticals, Inc.
June 30, 2010
Page Five
 
 
 
We hereby consent to the filing of this opinion as an exhibit to the Post-Effective Amendment No. 2 to the Registration Statement. This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable law.
 
Very truly yours,
 
Cooley llp
 
/s/ Brett D. White                                                       
Brett D. White
 
 
 
 
 
 
 
 
FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155  T: (650) 843-5000  F: (650) 849-7400  WWW.COOLEY.COM

 
EXHIBIT 23.1
 

 



CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
 
We consent to the reference to Davidson & Company LLP under the caption “Experts” in the Company’s Registration Statement on Form S-3/A (the “Registration Statement”) and the incorporation by reference in this Registration Statement of our report dated March 26, 2010, relating to the consolidated balance sheets of NovaBay Pharmaceuticals, Inc. and its subsidiaries (the “Company”) as at December 31, 2009 and 2008, and the related statements of operations, cash flows and stockholders’ equity for the years ended December 31, 2009, 2008 and 2007 and for the period from July 1, 2002 (date of development stage inception) to December 31, 2009 appearing in the Company’s Annual Report on Form 10-K filed by the Company with the Securities and Exchange Commission on March 30, 2010.

/s/ DAVIDSON & COMPANY LLP

Vancouver, Canada
Chartered Accountants
   
June 30, 2010