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: December 18, 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 December 18, 2015, NovaBay Pharmaceuticals, Inc. (the “ Company ” or “ NovaBay ”) filed a Certificate of Amendment to the Company’s Amended and Restated Certificate of Incorporation, as amended (the “ Certificate of Incorporation ”) with the Secretary of State of the State of Delaware to effect a 1-for-25 reverse stock split of all outstanding common stock of the Company, effective immediately. The Certificate of Amendment is filed herewith as Exhibit 3.1 . The filing of the Certificate of Amendment was pursuant to the authorization provided by the stockholders of NovaBay at the Company’s December 11, 2015 special stockholder meeting (the “ Special Meeting ”), which authorized the Board of Directors of the Company to effect a reverse stock split of all outstanding shares of NovaBay common stock at a specific ratio within a range from 1-for-15 to 1-for-25 at any time before January 31, 2016. On December 11, 2015, following the Special Meeting, the Board of Directors of the Company unanimously approved the Certificate of Amendment to the Certificate of Incorporation.

 

As a result of the reverse stock split, each twenty-five (25) shares of outstanding common stock will be combined into one (1) new share, with no change in authorized shares or par value per share, thereby reducing the number of shares of common stock outstanding from approximately 87,138,547 shares to approximately 3,485,541 shares (prior to rounding). Proportional adjustments will be made to the exercise prices of the Company’s outstanding warrants and stock options, and to the number of shares issued and issuable under the Company’s stock incentive plans. The reverse stock split will not affect any stockholder’s ownership percentage of the Company’s common stock, except to the limited extent that the reverse stock split would result in any stockholder owning a fractional share. The Company will not issue fractional certificates for post-reverse stock split shares in connection with the reverse stock split; rather, the Company will issue an additional share to all holders of fractional shares.

 

The Company’s trading symbol of “NBY” will not change as a result of the reverse stock split, although it is expected that the letter “ D ” will be appended to the Company’s ticker for approximately twenty (20) trading days following the effective date to indicate the completion of the reverse stock split. In addition, the common stock will trade under a new CUSIP number, 66987P201.

 

Item 9.01     Exhibits

 

Exhibit No.

 

Description

3.1*

 

Certificate of Amendment to the Certificate of Incorporation of NovaBay Pharmaceuticals, Inc.

 

* Filed herewith.

   

 

 
 
 

 

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 J. Paulson

 

 

 

Thomas J. Paulson

 

 

 

Chief Financial Officer and Treasurer

 

Dated: December 21, 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 and restating Paragraph C of Article IV of the Certificate of Incorporation to read in its entirety as follows:

 

“Each outstanding share of Common Stock shall entitle the holder thereof to one vote on each matter properly submitted to the stockholders of the Corporation for their vote; provided, however , that, except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any certificate of designation filed with respect to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon by law or pursuant to this Certificate of Incorporation (including any certificate of designation filed with respect to any series of Preferred Stock). 

 

Upon the filing of this Amendment with the Secretary of State of the State of Delaware (the “ Effective Time ”), each twenty-five (25) outstanding shares of Common Stock (the “ Old Common Stock ”) shall be combined and converted into one (1) share of Common Stock (the “ New Common Stock ”). This reverse stock split (the “ Reverse Split ”) of the outstanding shares of Common Stock shall not affect the total number of shares of capital stock, including the Common Stock, that the Corporation is authorized to issue, which shall remain as set forth under this Article IV.

 

The Reverse Split shall occur without any further action on the part of the Corporation or the holders of shares of New Common Stock and whether or not certificates representing such holders’ shares prior to the Reverse Split are surrendered for cancellation. No fractional interest in a share of New Common Stock shall be deliverable upon the Reverse Split,  all of which shares of New Common Stock shall be rounded up to the nearest whole number of such shares. All references to “Common Stock” in these Articles shall be to the New Common Stock.

 

The Reverse Split will be effectuated on a stockholder-by-stockholder (as opposed to certificate-by-certificate) basis. Certificates dated as of a date prior to the Effective Time representing outstanding shares of Old Common Stock shall, after the Effective Time, represent a number of shares equal to the same number of shares of New Common Stock as is reflected on the face of such certificates, divided by twenty-five (25) and rounded up to the nearest whole number. The Corporation shall not be obligated to issue new certificates evidencing the shares of New Common Stock outstanding as a result of the Reverse Split unless and until the certificates evidencing the shares held by a holder prior to the Reverse Split are either delivered to the Corporation or its transfer agent, or the holder notifies the Corporation or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Corporation to indemnify the Corporation from any loss incurred by it in connection with such certificates.”

 

 
 
 

 

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 December 11, 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 Interim Chief Executive Officer this 18th day of December, 2015.

 

NOVABAY PHARMACEUTICALS, INC.

 

 

By: /s/ Mark M. Sieczkarek                           

       Mark M. Sieczkarek

       Interim Chief Executive Officer