UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K /A
Amendment No. 1
(Mark One)
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2018
OR
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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)
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Delaware |
68-0454536 |
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(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:
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Title of each class |
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Name of each exchange on which registered |
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Common Stock, $0.01 par value per share |
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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 a check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ☐
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):
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Large accelerated filer |
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Accelerated filer |
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Emerging growth company |
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Non-accelerated filer |
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Smaller reporting company |
☒ |
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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 is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
As of June 30, 2018, 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 $12,878,993. This figure excludes an aggregate of 11,937,707 shares of common stock held by affiliates, including officers and directors, as of June 30, 2018. 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 24, 2019, there were 17,089,304 shares of the registrant's common stock outstanding.
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, 2018, as filed with the Securities and Exchange Commission on March 29, 2019 (the “Original Filing”). The Consent of Independent Registered Public Accounting Firm (the “Auditor Consent”) was inadvertently omitted in the Original Filing, although the Company had the executed Auditor Consent provided by OUM & Co. LLP at the time of the Original Filing.
This Amendment is being filed solely to file the Auditor Consent. 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 29, 2019) or modify or update those disclosures that may be affected by subsequent events. Accordingly, this Amendment should be read in conjunction with the Form 10-K 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 . The financial statements listed in the Index for Item 8 are filed as part 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 within the Original Filing.
(3) Exhibits . The following exhibits are filed as part of this Report:
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Incorporation by Reference |
Filed Herewith |
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Exhibit Number |
Exhibit Description |
Form |
File Number |
Exhibit/ Form 8-K Item Reference |
Filing Date |
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3.1 |
Amended and Restated Certificate of Incorporation of NovaBay Pharmaceuticals, Inc. |
10-K |
001-33678 |
3.1 |
3/21/2018 |
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3.2 |
Amendment to the Amended and Restated Certificate of Incorporation |
8-K |
001-33678 |
3.1 |
6/04/2018 |
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3.3 |
8-K |
001-33678 |
3.2 |
6/29/2010 |
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4.1 |
10-K |
001-33678 |
4.1 |
3/23/2017 |
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4.2 |
Form of Warrant issued in March 2015 Offering, as amended (issued with 15-month term) |
10-K |
001-33678 |
4.2 |
3/23/2017 |
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4.3 |
Form of Warrant issued in March 2015 Offering, as amended (issued with 5-year term) |
10-K |
001-33678 |
4.3 |
3/23/2017 |
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4.4 |
10-Q |
001-33678 |
4.7 |
8/13/2015 |
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4.5 |
10-K |
001-33678 |
4.5 |
3/23/2017 |
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4.6 |
8-K |
001-33678 |
10.2
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3/09/2015 |
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4.7 |
10-Q |
001-33678 |
4.9 |
8/13/2015 |
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4.8 |
Registration Rights Agreement (among the Company and each of the purchasers named therein) |
8-K |
001-33678 |
4.2 |
4/05/2016 |
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10.1+ |
Indemnity Agreement (Form of Indemnity Agreement between the Company and its Directors and Officers) |
10-Q |
001-33678 |
10.1 |
8/12/2010 |
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10.2+ |
S-1 as amended |
333-140714
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10.2 |
3/30/2007 |
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10.3+ |
NovaBay Pharmaceuticals, Inc. 2007 Omnibus Incentive Plan (as amended and restated) |
S-8 |
333-215680 |
99.1 |
1/24/2017 |
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10.4+ |
S-8 |
333-218469 |
99.1 |
6/02/2017 |
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10.5+ |
S-8 |
333-218469 |
99.2 |
6/02/2017 |
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10.6+ |
8-K |
001-33678 |
10.1 |
10/11/2018 |
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10.7+ |
Executive Employment Agreement (Employment Agreement of Mark M. Sieczkarek expired June 1, 2018) |
8-K |
001-33678 |
10.1 |
6/06/2017 |
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10.8+ |
Executive Employment Agreement (Employment Agreement of John J. McGovern) |
8-K |
001-33678 |
10.1 |
7/10/2017 |
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10.9+ |
Executive Employment Agreement (Employment Agreement of Lewis Stuart) |
8-K |
001-33678 |
10.1 |
11/28/2017 |
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10.10+ |
Executive Employment Agreement (Employment Agreement of Justin M. Hall) |
8-K |
001-33678 |
10.1 |
12/20/2017 |
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10.11 |
S-1, as amended |
333-140714 |
10.10 |
3/30/2007 |
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10.12 |
10-K |
001-33678
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10.20 |
3/14/2008 |
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10.13 |
10-Q, as amended |
001-33678
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10.1 |
11/14/2008 |
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10.14 |
10-Q |
001-33678
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10.2
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8/09/2012 |
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10.15 |
10-K |
001-33678 |
10.19 |
3/04/2016 |
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10.16 |
Office Lease (between the Company and KBSIII Towers at Emeryville, LLC) |
8-K |
001-33678 |
10.1 |
8/26/2016 |
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10.17 |
8-K |
001-33678 |
10.1 |
7/15/2016 |
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10.18 † |
Collaboration and License Agreement by and between NovaBay Pharmaceuticals, Inc. and Galderma S.A. |
10-Q, as amended |
001-33678
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10.2
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8/04/2009 |
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10.19 † |
10-K |
001-33678 |
10.18 |
3/30/2010 |
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10.20 † |
10-K |
001-33678 |
10.24 |
3/10/2011 |
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10.21† |
International Distribution Agreement (by and between the Company and Pioneer Pharma Co. Ltd.) |
10-K |
001-33678 |
10.18 |
3/27/2012 |
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10.22 |
8-K |
001-33678 |
Item 1.01 |
9/30/2016 |
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10.23 |
10-Q |
001-33678 |
10.1 |
11/14/2017 |
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10.24 |
8-K |
001-33678 |
10.1 |
11/21/2017 |
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10.25 |
Share Purchase Agreement (by and between the Company and OP Financial Investments Limited) |
8-K |
001-33678 |
10.1 |
2/06/2018 |
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10.26 |
Promissory Note Payable to Pioneer Pharma (Hong Kong) Company Limited, dated February 27, 2019 |
8-K |
001-33678 |
10.1 |
3/01/2019 |
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10.27 |
8-K |
001-33678 |
10.2 |
3/01/2019 |
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10.28 |
8-K |
001-33678 |
10.1 |
3/28/2019 |
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10.29 |
8-K |
001-33678 |
10.2 |
3/28/2019 |
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10.30 |
Security Agreement between the Company and Iliad Research and Trading, L.P., dated March 26, 2019 |
8-K |
001-33678 |
10.3 |
3/28/2019 |
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10.31 |
Consulting Agreement between the Company and China Kington, dated March 1, 2019 |
10-K |
001-33678 |
10.31 |
3/29/2019 |
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23.1 |
X |
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24.1 |
10-K |
001-33678 |
10.31 |
3/29/2019 |
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31.1 |
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X |
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31.2 |
X |
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32.1 |
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X |
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32.2 |
X |
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101.INS |
XBRL Instance Document |
10-K |
001-33678 |
101.INS |
3/29/2019 |
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101.SCH |
XBRL Taxonomy Extension Schema Document |
10-K |
001-33678 |
101.SCH |
3/29/2019 |
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101.CAL |
XBRL Taxonomy Extension Calculation Linkbase Document |
10-K |
001-33678 |
101.CAL |
3/29/2019 |
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101.DEF |
XBRL Taxonomy Extension Definition Linkbase |
10-K |
001-33678 |
101.DEF |
3/29/2019 |
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101.LAB |
XBRL Taxonomy Extension Labels Linkbase Document |
10-K |
001-33678 |
101.LAB |
3/29/2019 |
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101.PRE |
XBRL Taxonomy Extension Presentation Linkbase Document |
10-K |
001-33678 |
101.PRE |
3/29/2019 |
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+ |
Indicates a management contract or compensatory plan or arrangement |
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† |
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. |
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.
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NovaBay Pharmaceuticals, Inc. |
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Date: April 12, 2019 |
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By: |
/s/ Justin Hall |
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Justin Hall Interim President & Chief Executive Officer and General Counsel |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in Registration Statements on Form S-8 (File Nos. 333-222625, 333-218469, 333-215680, 333-211754, 333-208985, 333-203109, 333-196764, 333-194383, 333-185998, 333-180461, 333-171981, 333-147334, 333-157041, and 333-164469), and Form S-3 (File Nos. 333-211944 and 333-211943) of NovaBay Pharmaceuticals, Inc. of our report dated March 29, 2019 (which report expresses an unqualified opinion and includes an explanatory paragraph related to the Company's change in method of accounting for revenue from contracts with customers due to adoption of a new accounting standard, and an explanatory paragraph related to substantial doubt about the Company’s ability to continue as a going concern), relating to the consolidated financial statements of NovaBay Pharmaceuticals, Inc., which appears in this Annual Report on Form 10-K.
/s/ OUM & CO. LLP
San Francisco, California
March 29, 2019
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;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s Board of Directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: April 12, 2019
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/s/ Justin Hall |
Justin Hall
Interim President and Chief Executive Officer
(principal executive officer)
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, Jason Raleigh, 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;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s Board of Directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: April 12, 2019
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/s/ Jason Raleigh |
Jason Raleigh
Interim Chief Financial Officer
(principal financial officer)
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 amendment to the annual report of NovaBay Pharmaceuticals, Inc. (the “Company”) on Form 10-K/A for the fiscal year ended December 31, 2018 (the “Report”), I, Justin Hall, Interim 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: April 12, 2019
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/s/ Justin Hall |
Justin Hall
Interim President and Chief Executive 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.
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 amendment to the annual report of NovaBay Pharmaceuticals, Inc. (the “Company”) on Form 10-K/A for the fiscal year ended December 31, 2018 (the “Report”), I, Jason Raleigh, 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: April 12, 2019
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/s/ Jason Raleigh |
Jason Raleigh
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.