UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of earliest event reported: September 30, 2015

 

NovaBay Pharmaceuticals, Inc.

(Exact Name of Registrant as Specified in Charter)

 

Delaware

001-33678

68-0454536

(State or Other Jurisdiction

of Incorporation)

(Commission File Number)

(I.R.S. Employer

Identification No.)

 

5980 Horton Street, Suite 550, Emeryville, CA 94608

(Address of Principal Executive Offices) (Zip Code)

 

(510) 899-8800

(Registrant’s telephone number, including area code)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

☐

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 
 

 

 

Item 5.03      Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

 

On September 30, 2015, NovaBay Pharmaceuticals, Inc. (the “Company”) held a Special Meeting of Stockholders, at which the Company’s stockholders approved an amendment to the Company’s Amended and Restated Certificate of Incorporation, as amended, to increase the number of authorized shares of Company common stock from 120,000,000 to 240,000,000. A copy of the Certificate of Amendment of Amended and Restated Certificate of Incorporation of NovaBay Pharmaceuticals, Inc. is attached hereto as Exhibit 3.1 and is incorporated herein by reference.

 

Item 5.07     Submission of Matters to a Vote of Security Holders

 

On September 30, 2015, the Company held a Special Meeting of Stockholders, at which the Company’s stockholders considered two (2) proposals, each of which is described in more detail in the Company’s definitive proxy statement filed with the Securities and Exchange Commission on September 4, 2015. There were 74,813,656 outstanding shares entitled to vote and there were 58,403,689 shares present in person or by proxy, representing 78.07% of the shares outstanding and entitled to vote. The voting results are presented below.

 

1.

To approve an amendment to the Amended and Restated Certificate of Incorporation, as amended, of the Company to increase the number of authorized shares of Company common stock from 120,000,000 to 240,000,000. The results were as follows:

 

For

Against

Abstain

Broker Non-Votes 1

51,638,910

5,551,824

734,347

478,608

 

2.

To adjourn the Special Meeting, if necessary or appropriate, to establish a quorum or to permit further solicitation of proxies if there are not sufficient votes cast at the meeting in favor of the above proposal.

 

For

Against

Abstain

Broker Non-Votes 1

53,718,739

4,146,899

538,051

0

 

Item 9.01           Exhibits

 

Exhibit No.

 

Description

 

 

 

3.1

 

Certificate of Amendment of Amended and Restated Certificate of Incorporation of NovaBay Pharmaceuticals, Inc.

 

 

 


1        A broker non-vote occurs when a broker, bank or other nominee holding shares for a beneficial owner does not vote on a particular proposal because the nominee does not have discretionary voting power with respect to the item and has not received voting instructions from the beneficial owner of the shares it holds. Broker non-votes are counted when determining whether the necessary quorum of stockholders is present or represented at each annual meeting.  

 

 
 

 

 

SIGNATURES

 

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

NovaBay Pharmaceuticals, Inc.

(Registrant)

   
  By:

/s/ Thomas Paulson

   

Thomas J. Paulson

   

Chief Financial Officer and Treasurer

 

Dated: October 1, 2015

Exhibit 3.1

 

CERTIFICATE OF AMENDMENT OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
NOVABAY PHARMACEUTICALS, INC.

 

 

NOVABAY PHARMACEUTICALS, INC. , a corporation organized and existing under, and by virtue of, the General Corporation Law of the State of Delaware, hereby certifies that :

 

FIRST: The name of the Corporation is NovaBay Pharmaceuticals, Inc. (the “ Corporation ”).

 

SECOND: The Corporation was originally incorporated under the same name and the original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on April 19, 2010.

 

THIRD: The Board of Directors of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the General Corporation Law of the State of Delaware, adopted resolutions amending Paragraph A of Article IV of the Certificate of Incorporation to be amended and restated to read in its entirety as follows:

 

A. This Corporation is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares which the Corporation is authorized to issue is Two Hundred Forty-Five million (245,000,000) shares. Two Hundred Forty Million (240,000,000) shares shall be Common Stock, each having a par value of one cent ($0.01) per share. Five Million (5,000,000) shares shall be Preferred Stock, each having a par value of one cent ($0.01) per share.”

 

FOURTH: Also pursuant to a resolution of the Board of Directors, thereafter this Certificate of Amendment was submitted to the stockholders of the Corporation for their approval, and was duly adopted at a Special Meeting of Stockholders held on September 30, 2015, or such other time as determined by the authorized officers of the Company, in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

 

FIFTH: All other provisions of the Certificate of Incorporation shall remain in full force and effect. 

 

IN WITNESS WHEREOF , NOVABAY PHARMACEUTICALS, INC. has caused this Certificate of Amendment to be signed by its Chief Executive Officer this 30th day of September, 2015.

 

NOVABAY PHARMACEUTICALS, INC.

 

 

By: /s/ Ramin (Ron) Najafi  

Ramin (Ron) Najafi 

President and Chief Executive Officer