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: May 21, 2021

 

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.)

 

2000 Powell Street, Suite 1150, Emeryville, CA         94608

(Address of Principal Executive Offices) (Zip Code)

 

(510) 899-8800

(Registrants telephone number, including area code)

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of Each Class

 

Trading Symbol(s)

 

Name of Each Exchange On Which Registered

Common Stock, par value $0.01 per share

 

NBY

 

NYSE American

 

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))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter). Emerging growth company ☐

 

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. ☐

 

 

 

 

Item 5.03

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

 

On May 21, 2021, NovaBay Pharmaceuticals, Inc. (the “Company”) held its 2021 Annual Meeting of Stockholders, as further described in Item 5.07 below, 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 the Company’s common stock from 75,000,000 to 100,000,000 (the “Amendment”). The Amendment became effective upon the Company’s filing of the Amendment with the Secretary of State of Delaware on May 24, 2021. A copy of the Amendment 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 May 21, 2021, the Company held its 2021 Annual Meeting, at which the Company’s stockholders considered three (3) proposals, each of which is described in more detail in the Company’s proxy statement filed with the Securities and Exchange Commission on April 7, 2021 (the “Proxy Statement”). There were 41,782,584 outstanding shares entitled to vote and there were 25,112,440 shares present in person or by proxy at the 2021 Annual Meeting, representing fifty-four percent (54%) of the shares outstanding and entitled to vote. The voting results are presented below.

 

1.         To elect the two (2) Class II directors nominated by our Board of Directors to hold office for a term of three (3) years and until their respective successors are elected and qualified.

 

Nominee

For

Withhold

Broker Non-Votes1

Justin M. Hall

12,407,143

1,254,068

11,451,229

Xinzhou (Paul) Li

12,377,861

1,283,350

11,451,229

 

2.         To approve an amendment to the Amended and Restated Certificate of Incorporation, as amended, of NovaBay Pharmaceuticals, Inc. to increase the Company’s number of authorized shares of NovaBay common stock from 75,000,000 to 100,000,000.

 

For

Against

Abstain

21,952,134

2,862,016

298,290

 

3.         To ratify the appointment by our Audit Committee of OUM & Co. LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2021.

 

For

Against

Abstain

24,335,459

528,587

248,394

 

Item 9.01     Financial Statements and Exhibits.

 

(d)          Exhibits.

 

Exhibit No.

 

Description

3.1

 

Amendment to the Amended and Restated Certificate of Incorporation, as amended.

 


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.

 

 

 

 

 

 

 

 

 

 

By:

/s/ Justin Hall

 

 

 

Justin Hall

 

 

 

Chief Executive Officer and General Counsel

 

 

Dated: May 24, 2021

 

 

 

 

 

 

 

 

 

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 Paragraphs A of Article IV of the Certificate of Incorporation 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 One Hundred Five Million (105,000,000) shares. One Hundred Million (100,000,000) 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 the Annual Meeting of Stockholders held on May 21, 2021, 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 & General Counsel this 24th day of May, 2021.

 

NOVABAY PHARMACEUTICALS, INC.

 

 

By: /s/ Justin M. Hall                                                        

Justin M. Hall

Chief Executive Officer & General Counsel