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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 17, 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
(Registrant’s 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 5.07     Submission of Matters to a Vote of Security Holders.
 
On December 17, 2021, NovaBay Pharmaceuticals, Inc. (the “Company” or “NovaBay”) held its 2021 Special Meeting of Stockholders (the “Special Meeting”), whereby the Company’s stockholders were asked to consider four (4) proposals, each of which is described in more detail in the Company’s proxy statement filed with the Securities and Exchange Commission on November 12, 2021 (the “Proxy Statement”).  There were 44,943,364 outstanding shares entitled to vote as of the record date and 31,011,705 shares present in person or by proxy at the Special Meeting, representing sixty-nine percent (69%) of the shares outstanding and entitled to vote. The voting results with respect to three of the four proposals, as certified by the inspector of elections for the Special Meeting, are presented below.
 
1.         To approve, in accordance with NYSE American LLC Company Guide Section 713(a) and (b), both (i) the issuance of 37,500,000 shares of NovaBay’s common stock, par value $0.01 (the “Conversion Shares”), upon conversion of 15,000 shares of NovaBay’s Series B Non-Voting Convertible Preferred Stock, par value $0.01, subject to the potential increase in the number of Conversion Shares due to applicable anti-dilution adjustments, and (ii) the issuance of 37,500,000 shares of NovaBay’s common stock (“Warrant Shares”) upon the exercise of NovaBay common stock warrants, subject to the potential increase in the number of Warrant Shares due to applicable anti-dilution adjustments.
 
For
Against
Abstain
Broker Non-Votes1
18,168,554
3,107,071
191,850
9,544,230
 
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 100,000,000 to 150,000,000.
 
As disclosed below under Item 8.01, which is incorporated herein by reference, the Special Meeting was adjourned with respect to Proposal Two, allowing stockholders additional time to vote for this proposal.
 
3.         To ratify the appointment by our Audit Committee of WithumSmith+Brown, PC as our independent registered public accounting firm for the fiscal year ending December 31, 2021.
 
For
Against
Abstain
28,509,579
1,962,856
539,270
 
4.         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 time of the Special Meeting in favor of Proposal One, Proposal Two or Proposal Three.
 
For
Against
Abstain
28,261,963
2,366,070
383,672
 
 
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.
 
 
 
 
Item 8.01     Other Events.
 
At the time of the Special Meeting, there were insufficient votes to approve Proposal Two, which sought an amendment to the Company’s Amended and Restated Certificate of Incorporation, as amended, to increase the amount of authorized common stock from 100,000,000 shares to 150,000,000 shares. Accordingly, the Special Meeting was adjourned on Proposal Two, and as announced at the  Special Meeting, such meeting will reconvene at 11:00 a.m. Pacific Time on January 14, 2022 virtually at http://www.virtualshareholdermeeting.com/NBY2021SM. During the period of adjournment, the Company will continue to solicit stockholder votes on Proposal Two.
 
On December 21, 2021, the Company issued a press release announcing that it had adjourned the Special Meeting. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K, which is incorporated by reference.
 
Item 9.01     Financial Statements and Exhibits.
 
(d)          Exhibits.
 
Exhibit No.
 
Description
99.1
 
104   Cover Page Interactive Data File (embedded within the Inline XBRL document)
 
 
 
 
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: December 21, 2021
 
 

Exhibit 99.1

 

A01.JPG

 

NovaBay Pharmaceuticals Holds Special Meeting of Stockholders

 

Proposals One, Three, and Four Pass; Meeting Adjourned with respect to Proposal Two

 

Stockholders who have not voted on Proposal Two are strongly encouraged to vote their shares

 

Meeting to reconvene on January 14, 2022

 

EMERYVILLE, Calif. (December 21, 2021) – NovaBay® Pharmaceuticals, Inc. (NYSE American: NBY) (“NovaBay” or the “Company”) announces that its Special Meeting of Stockholders held on December 17, 2021 has been adjourned until January 14, 2022 at 11:00 a.m. Pacific time in order to provide stockholders additional time to vote on Proposal Two, which is a proposal to approve an amendment to the NovaBay Amended and Restated Certificate of Incorporation to effect an increase in authorized common stock from 100,000,000 shares to 150,000,000 shares.

 

Proposal Two has received significant support based on the shares that have been voted by stockholders. As of the Special Meeting of Stockholders, approximately 83.5% of the shares that had been voted on Proposal Two were voted in its favor. However, the favorable votes were less than 50% of all outstanding shares of common stock, which is the minimum threshold required to approve this proposal. The Board of Directors continues to believe that the approval of Proposal Two is in the best interests of NovaBay and its stockholders, and one of the leading independent proxy voting advisory groups, Institutional Shareholder Services (“ISS"), recommended that stockholders vote FOR Proposal Two. All other proposals presented for consideration at the Special Meeting of Stockholders only required a majority of the votes present in person or by proxy as long as a quorum was present and all such other proposals passed on December 17, 2021.

 

Adjournment of Special Meeting of Stockholders

 

The adjourned meeting will be held in a virtual format and stockholders will be able to listen and participate in the virtual special meeting, as well as vote and submit questions during the live webcast of the meeting by visiting http://www.virtualshareholdermeeting.com/NBY2021SM and entering the 16‐digit control number included in your proxy card.

 

NovaBay encourages any stockholder as of the record date of October 25, 2021 who has not yet voted its shares on Proposal Two or is uncertain if their shares have been voted on Proposal Two to contact their broker or bank to vote their shares. The Board of Directors and management requests that these stockholders consider and vote their proxies as soon as possible on Proposal Two, but no later than January 13, 2022 at 11:59 p.m. Eastern time. Stockholders who have previously submitted their proxy or otherwise voted on Proposal Two at the Special Meeting of Stockholders and who do not want to change their vote need not take any action. For questions relating to the voting of shares or to request additional or misplaced proxy voting materials, please contact NovaBay’s proxy advisory group for assistance in voting your shares U.S. Toll Free at 855-643-7304.

 

 
 

 

As described in the Proxy Statement, a stockholder may use one of the following simple methods to vote their shares of common stock, or change their previously submitted vote, before the January 14, 2022 adjourned meeting with respect to Proposal Two:

 

 

●

By Internet – www.proxyvote.com. If you have Internet access, you may transmit your voting instructions up until 11:59 p.m., Eastern time, the day before the adjourned Special Meeting date, that is, January 13, 2022. Go to www.proxyvote.com. You must have your proxy card in hand when you access the website and follow the instructions to obtain your records and to create an electronic voting instruction form.

 

 

●

By telephone – 1-800-690-6903. You may vote using any touch-tone telephone to transmit your voting instructions up until 11:59 p.m., Eastern time, the day before the adjourned Special Meeting date, that is, January 13, 2022. Call 1-800-690-6903 toll free. You must have your proxy card in hand when you call this number and then follow the instructions.

 

 

●

By mail – Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided.

 

Votes must be received by 11:59 p.m. Eastern time on January 13, 2022 to be counted. After this time, votes can only be cast during the adjourned Special Meeting on January 14, 2022 at 11:00 a.m. Pacific time at http://www.virtualshareholdermeeting.com/NBY2021SM.

 

About NovaBay Pharmaceuticals, Inc.

NovaBay Pharmaceuticals, Inc. is a pharmaceutical company that develops and sells scientifically created and clinically proven consumer products for the eyecare and skincare markets. In November 2021, NovaBay acquired DERMAdoctor, LLC, a company commercializing more than 30 dermatologist-developed skincare products sold through traditional domestic retailers, digital beauty channels and international distributors.

 

Forward-Looking Statements

This release contains forward-looking statements that are based upon management’s current expectations, assumptions, estimates, projections and beliefs. These statements involve known and unknown risks, uncertainties and other factors that may cause actual results or achievements to be materially different and adverse from those expressed in or implied by these forward-looking statements. Factors that might cause or contribute to such differences include, but are not limited to, risks and uncertainties relating to the Company’s ability to obtain the necessary votes to pass Proposal Two. Other risks relating to NovaBay’s business, including risks that could cause results to differ materially from those projected in the forward-looking statements in this press release, are detailed in NovaBay’s latest Form 10-Q and Form 10-K filings, the Proxy Statement and Registration Statement on Form S-1 filing with the Securities and Exchange Commission, especially under the heading “Risk Factors.” The forward-looking statements in this release speak only as of this date, and NovaBay disclaims any intent or obligation to revise or update publicly any forward-looking statement except as required by law.

 

 
 

 

Important Information

In connection with the solicitation of proxies, on November 12, 2021, NovaBay filed a definitive proxy statement with the Securities and Exchange Commission (“SEC”) in connection with NovaBay’s Special Meeting of Stockholders held on December 17, 2021, which has been adjourned until January 14, 2022. STOCKHOLDERS ARE STRONGLY ADVISED TO READ THE DEFINITIVE PROXY MATERIALS AND ANY OTHER RELEVANT SOLICITATION MATERIALS FILED BY NOVABAY WITH THE SEC BEFORE MAKING ANY VOTING OR INVESTMENT DECISION BECAUSE THESE DOCUMENTS CONTAIN IMPORTANT INFORMATION. NovaBay’s Proxy Statement and any other materials filed by NovaBay with the SEC can be obtained free of charge at the SEC’s web site at www.sec.gov.

 

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Avenova Purchasing Information

For NovaBay Avenova purchasing information:

Please call 800-890-0329 or email sales@avenova.com.

Avenova.com

 

NovaBay Contact

Justin Hall

Chief Executive Officer and General Counsel

510-899-8800

jhall@novabay.com

 

Investor Contact

LHA Investor Relations

Jody Cain

310-691-7100
jcain@lhai.com

 

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