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As filed with the Securities and Exchange Commission on January 15, 2021.
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Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NovaBay Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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68-0454536
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer Identification No.)
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2000 Powell Street, Suite 1150, Emeryville, CA 94608
(510) 899-8800
(Address, including zip code, of Principal Executive Offices)
2017 Omnibus Incentive Plan
(Full title of the plan)
Justin M. Hall, Esq.
Chief Executive Officer and General Counsel
2000 Powell Street, Suite 1150
Emeryville, CA 94608
(510) 899-8800
(Name, address, and telephone number, including area code, of agent for service)
Copies to:
Abby E. Brown, Esq.
Squire Patton Boggs (US) LLP
2550 M Street, Northwest
Washington, DC 20037
(202) 457-6000
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.
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Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☐
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Smaller reporting company ☒
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Emerging growth 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 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered
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Amount to be
registered(1)
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Proposed
maximum
offering price
per share(2)
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Proposed
maximum
aggregate
offering
price(2)
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Amount of
registration fee(2)
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Common Stock, $0.01 par value per share
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1,671,303 shares
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$0.88
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$1,470,747
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$160.46
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(1) This represents an automatic increase in the number of shares of common stock of the registrant reserved for issuance under the NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive Plan, pursuant to an evergreen provision contained in Section 4(a) therein. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional securities that may from time to time be offered or issued resulting from any stock splits, stock dividends, recapitalizations or other similar transactions.
(2) This calculation is made solely for the purpose of determining the registration fee pursuant to the provisions of Rule 457(c) and (h) under the Securities Act, based on the average of the high and low sales prices of the registrant’s common stock on January 13, 2021, as reported by NYSE American LLC.
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EXPLANATORY NOTE
This Registration Statement on Form S-8 registers a total of 1,671,303 shares of common stock, par value $0.01 per share (the “Common Stock”), of NovaBay Pharmaceuticals, Inc., a Delaware corporation (the “Company”), for issuance under the NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive Plan (the “Plan”). The number of shares of Common Stock available for issuance under the shareholder-approved Plan is subject to an automatic annual increase on the first day of each of the Company’s fiscal years beginning on January 1, 2018 and ending on January 1, 2027 by an amount equal to (i) four percent (4%) of the number of shares of Common Stock outstanding on the last day of the immediately preceding fiscal year or (ii) such lesser number of shares of Common Stock as determined by the Board of Directors (the “Board”). For 2021, the Board authorized an increase of 1,671,303 shares of the Registrant’s Common Stock under the Plan, consisting of the full four percent (4%) increase allowed pursuant to the Plan’s evergreen provision. These shares are in addition to the 2,318,486 shares of Common Stock registered on the Company’s Form S-8 filed on June 2, 2017 (File No. 333-218469), the 615,392 shares of Common Stock registered on the Company’s Form S-8 filed on January 19, 2018 (File No. 333-222625) pursuant to the annual increase in 2018 according to the Plan’s evergreen provision, and the 1,801,074 shares of Common Stock registered on the Company’s Form S-8 filed on February 7, 2020 (File No. 333-236328) pursuant to the annual increases in 2019 and 2020 according to the Plan’s evergreen provision (with 683,572 shares of Common Stock from the 2019 annual increase and 1,117,502 shares of Common Stock from the 2020 annual increase). Since the Plan provides that the annual increase in the aggregate number of shares that may be issued pursuant to the Plan’s evergreen provision begins for fiscal years commencing January 1, 2018, this Registration Statement accounts for the fourth share increase under the evergreen provision.
The contents of the prior Registration Statements on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on June 2, 2017, January 19, 2018 and February 7, 2020 (File Nos. 333-218469, 333-222625 and 333-236328, respectively), are incorporated herein by reference and made part of this Registration Statement.
This Registration Statement relates to securities of the same class as those to which the prior Registration Statements listed directly above relate, and is submitted in accordance with General Instruction E to Form S-8 regarding Registration of Additional Securities.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed by the Company with the Commission are incorporated by reference into this Registration Statement:
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1.
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The Company’s Annual Report on Form 10-K for the year ended December 31, 2019, as filed with the Commission on March 26, 2020.
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2.
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The Company’s Quarterly Reports on Forms 10-Q for the quarterly periods ended March 31, 2020, June 30, 2020 and September 30, 2020, as filed with the Commission on May 7, 2020, August 6, 2020 and November 12, 2020, respectively.
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3.
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The Company’s Current Reports on Form 8-K filed with the Commission on February 6, 2020, March 16, 2020, March 20, 2020, April 3, 2020, April 20, 2020, April 27, 2020, May 5, 2020, May 5, 2020, May 15, 2020, May 18, 2020, May 28, 2020, June 15, 2020, July 21, 2020, August 24, 2020, September 10, 2020, October 13, 2020 and November 18, 2020.
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4.
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The description of the Company’s Common Stock which is contained in the Company’s registration statement on Form 8-A, as filed with the Commission on August 29, 2007 and updated by our Current Report on Form 8-K filed with the Commission on June 29, 2010.
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All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents. Any such information so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.
Notwithstanding the foregoing, we are not incorporating by reference information furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits, nor any other document or information deemed to have been furnished and not filed in accordance with Commission rules.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the shares of Common Stock registered under this Registration Statement has been passed upon for the Company by Squire Patton Boggs (US) LLP.
Item 6. Indemnification of Directors and Officers.
The Company’s amended and restated certificate of incorporation provides that the liability of the directors for monetary damages shall be eliminated to the fullest extent under applicable law. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Company shall be eliminated to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Under the Delaware General Corporation Law, no director will be personally liable to the Company or the Company’s stockholders for monetary damages for breach of fiduciary duty as a director, except for liability:
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for any breach of the duty of loyalty to the Company or the Company’s stockholders;
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for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
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for unlawful payment of dividends or unlawful stock repurchases or redemptions under Section 174 of the Delaware General Corporation Law; and
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for any transaction from which the director derived an improper personal benefit.
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The Company’s amended and restated bylaws provide that:
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the Company is required to indemnify the Company’s directors and executive officers to the fullest extent not prohibited by Delaware law, subject to limited exceptions;
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the Company may indemnify the Company’s other employees and agents as set forth in the Delaware General Corporation Law;
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the Company is required to advance expenses to the Company’s directors and executive officers as incurred in connection with legal proceedings against them for which they may be indemnified, against an undertaking by the indemnified party to repay such advances if it is ultimately determined that the indemnified party is not entitled to indemnification; and
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the rights conferred in the amended and restated bylaws are not exclusive.
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The Company has entered into indemnification agreements with each of the Company’s directors and executive officers that require the Company to indemnify these persons against all direct and indirect costs of any type or nature whatsoever, including attorney’s fees, witness fees, and other out-of-pocket costs of whatever nature, incurred by the director or officer in any action or proceeding, whether actual, pending or threatened, subject to certain limitations, to which any of these people may be made a party by reason of the fact that he or she is or was a director or an executive officer of the Company or is or was serving or at any time serves at the request of the Company as a director, officer, employee or other agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
The Company has purchased insurance on behalf of any person who is or was a director or officer of the Company against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit No.
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Description of Document
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3.1
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Amended and Restated Certificate of Incorporation of NovaBay Pharmaceuticals, Inc., a Delaware corporation (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K, as filed with the Commission on March 21, 2018 (File No. 001-33678))
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3.2
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of NovaBay Pharmaceuticals, Inc., a Delaware corporation (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K, as filed with the Commission on June 4, 2018 (File No. 001-33678))
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3.3
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of NovaBay Pharmaceuticals, Inc., a Delaware corporation (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K, as filed with the Commission on May 28, 2020 (File No. 001-33678))
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3.4
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Bylaws of NovaBay Pharmaceuticals, Inc., a Delaware corporation (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K, as filed with the Commission on June 29, 2010 (File No. 001-33678))
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4.1
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Reference is made to Exhibits 3.1, 3.2, 3.3 and 3.4
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4.2
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Specimen Common Stock Certificate (incorporated by reference to the exhibit of the same description from the Company’s amendment to the registration statement on Form S-1 filed with the SEC on August 10, 2007 (SEC File No. 333-140714))
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5.1
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Opinion of Squire Patton Boggs (US) LLP
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23.1
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Consent of OUM & Co. LLP
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23.2
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Consent of Squire Patton Boggs (US) LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney to file future amendments (set forth on the signature page of this Registration Statement)
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99.1
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NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive Plan (incorporated by reference to Exhibit 99.1 to the Company’s Registration Statement on Form S-8 (File No. 333-218469), as filed with the Commission on June 2, 2017)
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99.2
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Forms of agreements for use under the NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive Plan (incorporated by reference to Exhibit 99.2 to the Company’s Registration Statement on Form S-8 (File No. 333-218469), as filed with the Commission on June 2, 2017)
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Item 9. Undertakings.
Incorporated by reference to Item 9 in the Company’s Registration Statement on Form S-8, filed with the Commission on June 2, 2017.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Emeryville, State of California on January 15, 2021.
NOVABAY PHARMACEUTICALS, INC.
/s/ Justin M. Hall
Justin M. Hall
Chief Executive Officer and General Counsel
KNOW ALL PERSONS BY THESE PRESENTS that each of the undersigned officers and directors does hereby constitute and appoint Justin M. Hall and Andrew Jones, 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 any 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 any 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 Registration Statement has been signed by the following persons in the capacities and on the dates indicated. This document may be executed by the signatories hereto on any number of counterparts, all of which shall constitute one and the same instrument.
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Signature
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Title
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Date
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/s/ Justin M. Hall
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Chief Executive Officer, General Counsel and Director
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January 15, 2021
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Justin M. Hall
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(principal executive officer)
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/s/ Andrew Jones
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Chief Financial Officer
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January 15, 2021
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Andrew Jones
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(principal financial and accounting officer)
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/s/ Paul E. Freiman
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Chairman
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January 15, 2021
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Paul E. Freiman
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/s/ Xinzhou (Paul) Li
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Director
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January 15, 2021
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Xinzhou (Paul) Li
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/s/ Swan Sit
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Director
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January 15, 2021
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Swan Sit
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/s/ Mijia (Bob) Wu
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Director
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January 15, 2021
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Mijia (Bob) Wu
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/s/ Yenyou (Jeff) Zheng
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Director
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January 15, 2021
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Yenyou (Jeff) Zheng
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Exhibit 5.1
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Squire Patton Boggs (US) LLP
2550 M Street, NW
Washington, D.C. 20037
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O +1 202 457 6000
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F +1 202 457 6315
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squirepattonboggs.com
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January 15, 2021
Board of Directors
NovaBay Pharmaceuticals, Inc.
2000 Powell Street, Suite 1150
Emeryville, CA 94608
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Re:
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Registration on Form S-8
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Ladies and Gentlemen:
We have acted as counsel to NovaBay Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with a Registration Statement on Form S-8 (together with all exhibits thereto, the “Registration Statement”) filed by the Company with the United States Securities and Exchange Commission (the “Commission”) on the date hereof relating to the registration under the Securities Act of 1933, as amended (the “Act”), of 1,671,303 additional shares of the Company’s common stock, par value $0.01 per share (the “Plan Shares”), authorized for issuance pursuant to the evergreen provision for fiscal year 2021 of the Company’s 2017 Omnibus Incentive Plan (the “Plan”).
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined such documents, corporate records and other instruments as we have deemed necessary or appropriate for purposes of this opinion. In such examination and in rendering our opinion, we have assumed (i) the authenticity of all documents, certificates, records and instruments submitted to us as originals, the genuineness of all signatures, (ii) the legal capacity of all natural persons, (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the Registration Statement and other records, documents, instruments and certificates we have reviewed, and (iv) the conformity to authentic originals of all documents, certificates, records and instruments submitted to us as copies. Insofar as this opinion relates to Plan Shares to be issued in the future, we have assumed that all applicable laws, rules and regulations in effect at the time of issuance are the same as such laws, rules and regulations in effect as of the date hereof. We have also assumed that the Plan Shares, when issued, will be duly authenticated by the transfer agent and registrar for the Plan Shares, that there will be no changes in the documents, certificates, records and instruments that we have examined, that all Plan Shares will be issued in the manner stated in the Registration Statement, that the Company’s Board of Directors, or a duly authorized committee thereof, will take all necessary corporate action, including under the terms of the Plan, to authorize and approve the issuance of Plan Shares and that, at all times prior to the issuance of the Plan Shares, the Company will maintain a sufficient number of authorized but unissued shares of common stock available for issuance.
Based upon and subject to the foregoing qualifications, assumptions and limitations and subject to the further qualifications set forth below, we are of the opinion that the Plan Shares, when issued, delivered and paid for in accordance with the terms of the Plan, including any applicable award agreements, will be validly issued, fully paid and non-assessable. Our opinion is limited to the General Corporation Law of the State of Delaware as in effect on the date hereof (including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting the General Corporation Law of the State of Delaware).
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and to the use of our name therein. In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Act or under the rules and regulations of the Commission.
This opinion is furnished to you in connection with the filing of the Registration Statement, and is not to be used, circulated, quoted or otherwise relied upon for any other purpose, except as expressly provided in the preceding paragraph. This opinion is given as of the effective date of the Registration Statement, and we assume no obligation to update or supplement the opinion contained herein to reflect any facts or circumstances which may hereafter come to our attention or any changes in laws which may hereafter occur.
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Sincerely,
/s/ Squire Patton Boggs (US) LLP
Squire Patton Boggs (US) LLP
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