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0001389545
0001389545
2022-01-05
2022-01-05
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: January 5, 2022
NovaBay Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in Charter)
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Delaware
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001-33678
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68-0454536
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(State or Other Jurisdiction
of Incorporation)
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(Commission File Number)
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(I.R.S. Employer
Identification No.)
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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)
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):
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☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of Each Class
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Trading Symbol(s)
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Name of Each Exchange On Which Registered
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Common Stock, par value $0.01 per share
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NBY
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NYSE American
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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 7.01 Regulation FD Disclosure
On or about January 5, 2022, NovaBay Pharmaceuticals, Inc. (the “Company”) mailed a letter to certain stockholders regarding the Company’s 2021 Special Meeting of Stockholders (the “Special Meeting”) that was adjourned as to Proposal Two, which is a proposal to approve 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. The Company is encouraging stockholders who have not yet voted to do so before the Special Meeting that will reconvene at 11:00 a.m. Pacific Time on January 14, 2022 virtually at http://www.virtualshareholdermeeting.com/NBY2021SM. This letter to stockholders is attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated by reference.
The information contained in this Item 7.01 of this Current Report on Form 8-K shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or incorporated by reference in any filing under the Securities Act of 1933, as amended (the “Securities Act”) or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing. The furnishing of the information in this Item 7.01 of this Current Report on Form 8-K is not intended to, and does not, constitute a representation that such furnishing is required by Regulation FD or that the information contained in this Current Report on Form 8-K constitutes material investor information that is not otherwise publicly available.
The Securities and Exchange Commission (“SEC”) encourages registrants to disclose forward-looking information so that investors can better understand the future prospects of a registrant and make informed investment decisions. This Item 7.01 of the Current Report on Form 8-K and Exhibit 99.1 may contain these types of statements, which are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, and which involve risks, uncertainties and reflect the Company’s judgment as of the date of this Current Report on Form 8-K. These statements are subject to inherent uncertainties and risks that could cause actual results to differ materially from those anticipated at the date of this Current Report on Form 8-K. Investors are cautioned not to rely unduly on forward-looking statements when evaluating the information presented within.
In connection with the solicitation of proxies, on November 12, 2021, the Company filed a definitive proxy statement (“Proxy Statement”) with the SEC in connection with the Special Meeting, 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 THE COMPANY WITH THE SEC BEFORE MAKING ANY VOTING OR INVESTMENT DECISION BECAUSE THESE DOCUMENTS CONTAIN IMPORTANT INFORMATION. The Proxy Statement and any other materials filed by the Company with the SEC can be obtained free of charge at the SEC’s web site at www.sec.gov.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
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Exhibit No.
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Description
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99.1
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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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.
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NovaBay Pharmaceuticals, Inc.
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By:
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/s/ Justin M. Hall
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Justin M. Hall
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Chief Executive Officer and General Counsel
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Dated: January 5, 2022
Exhibit 99.1
We’re still waiting for you…
Dear Fellow Stockholder,
I am writing to request your proxy voting support at NovaBay’s Special Stockholders Meeting, which has been adjourned and will reconvene on Friday, January 14, 2022. Our records indicate that the shares you held, as of the October 25, 2021 proxy voting record date, remain unvoted.
There is one remaining agenda item that is being considered and voted upon when the Special Meeting reconvenes, which is a proposal to amend our Amended and Restated Certificate of Incorporation to increase the number of authorized shares of Common Stock. Approval of this proposal requires approval from 50% of NovaBay’s total outstanding shares. An unvoted share, such as yours, has the same practical impact as a vote against this important proposal. Even if you have sold some or all of your shares since the October 25th record date, you remain eligible to vote, and your proxy support is greatly appreciated.
Accordingly, we request your proxy support to secure stockholder approval of this remaining proposal, as the additional authorized shares of Common Stock relate to our recent $15 million private financing in support of the DERMAdoctor acquisition, which is further detailed in the definitive Proxy Statement that was made available to stockholders. While the financing transaction had a dilutive impact upon stockholders’ equity, our Board of Directors and management view the DERMAdoctor acquisition to have immediately created intrinsic stockholder value and plan to aggressively grow this business, for the long-term benefit of all NovaBay stockholders.
In order to vote your shares, we have provided a convenient means for you to vote by phone, internet, or even by a simple email or text reply in some instances. Proxy voting instructions, by phone or internet, are enclosed with this letter, for your ease of reference.
If you have any procedural questions about how to vote your shares, please do not hesitate to call our proxy solicitation agent, toll- free at 855-643-7304.
NovaBay’s Board of Directors and I have greatly appreciated the substantial level of stockholder support we have received to date, with more than 83% of the voted shares as of the initially scheduled December 17th special meeting date, voted in support of the proposal.
If you have any questions about either this proposal, or NovaBay’s strategic plan for growth from the DERMAdoctor acquisition, please contact me personally at jhall@novabay.com.
I urge you to take the time to vote your shares today. Thank you in advance for your support.
Sincerely,
Justin M. Hall, CEO
NovaBay Pharmaceuticals, Inc.
Important Information
In connection with the solicitation of proxies, on November 12, 2021, NovaBay filed a definitive proxy statement (“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. The 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.
