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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: January 24, 2022
 
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)
 
 
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))
 
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
 
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 1.01         Entry into a Material Definitive Agreement
 
NovaBay Pharmaceuticals, Inc. (the “Company”) currently leases approximately 7,675 rentable square feet of real property as its principal corporate headquarters, located at 2000 Powell Street, Suite 1150, Emeryville, California from KBSIII Towers at Emeryville, LLC (the “Landlord”) under that certain Office Lease, dated August 24, 2016 (the “Lease”).
 
On January 24, 2022, the Company and the Landlord entered into a First Amendment to the Office Lease (the “Lease Amendment”), effective January 19, 2022, to extend the term of the Lease, currently set to expire on February 28, 2022, for sixty-five (65) months commencing as of March 1, 2022 and expiring on July 31, 2027, unless sooner terminated in accordance with the terms of the Lease, as amended by the Lease Amendment (the “Extended Term”).
 
The effective monthly base rental rate for the first twelve (12) months of the Extended Term is $4.70 per square foot ($432,870.00 annually), and increases approximately three percent (3%) every twelve (12) months thereafter beginning with the 13th month of the Extended Term with a maximum monthly rental rate of $4.45 per square foot ($501,815.04 annually) for the final five months of the Extended Term. Notwithstanding the increase base rental rate, the Landlord has agreed to abate the Company’s obligation to pay base rent during five months of the Extended Term (March 2022, 2023, 2024, 2025 and 2026) and to provide the Company with an allowance of up to $25.00 per rentable square foot ($191,875.00 total) for certain design and interior improvements.
 
The foregoing description of the terms of the Lease and the Lease Amendment do not purport to be complete and are subject to, and are qualified in their entirety by, reference to the Lease and the Lease Amendment, which are filed herewith as Exhibits 10.1 and 10.2, respectively, and are incorporated by reference.
 
Item 5.02         Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers
 
(b) and (d)        
 
On January 27, 2022, the Board of Directors (the “Board”) of the Company increased the size of the Board to eight (8) directors and appointed Dr. Audrey Kunin and Ms. Julie Garlikov to fill these two new vacancies on the Board resulting from the increased Board size further enhancing the Board’s experience and diversity.
 
Effective January 27, 2022, the Board appointed Dr. Kunin to serve as a Class I director of the Company to serve until the Company’s 2023 Annual Meeting of Stockholders, subject to her prior death, resignation or removal from office as provided by law.
 
Dr. Kunin, age 62, is the Company’s Chief Product Officer. Dr. Kunin co-founded DERMAdoctor, LLC (“DERMAdoctor”), the Company’s wholly-owned subsidiary, and previously served as the Chief Creative Officer of DERMAdoctor since March 2018 and as the Chief Executive Officer and its predecessor beginning in 1998. Dr. Kunin graduated from Ohio State University in December 1980 and received her M.D. at the Medical College of Ohio in June 1985. She received her postgraduate training in Dermatology at the Medical College of Virginia after serving as Chief Resident in July 1989. She is a fellow of the American Academy of Dermatology and formerly served as an Assistant Clinical Instructor of Dermatology at the University of Kansas School of Medicine.
 
Dr. Kunin is party to an employment agreement with the Company, which is described in the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 12, 2021 (the “DERMAdoctor Form 8-K”) and such description is incorporated by reference herein. Separately, the Company entered into a side letter with Dr. Kunin to provide for Dr. Kunin’s appointment to NovaBay’s Board of Directors as a Class I director as soon as reasonably practicable following the closing of the DERMAdoctor transaction, which is further described in the DERMAdoctor Form 8-K and such description is incorporated by reference herein. The incorporated description of the employment agreement and side letter with Dr. Kunin does not purport to be complete and is qualified in its entirety by reference to the full text of the employment agreement and the side letter, which are attached hereto as Exhibits 10.3 and 10.4, respectively, and incorporated by reference herein. Other than as described above, there is no other arrangement or understanding between Dr. Kunin and any other person pursuant to which she was appointed as a director of the Company. As an employee director of the Company, Dr. Kunin will not participate in the Company’s Non-Employee Director Compensation Program or serve on any of the Board's committees. 
 
Effective January 27, 2022, the Board also appointed Ms. Garlikov to serve as an independent Class II director of the Company to serve until the Company’s 2024 Annual Meeting of Stockholders, subject to her prior death, resignation or removal from office as provided by law.
 
Ms. Garlikov, age 51, is the Vice President of Marketing of GRAIL, LLC, a biotechnology and pharmaceutical company. She has served in this position since November 2020.  Ms. Garlikov has over 25 years of experience in marketing, which includes serving as the Chief Marketing Officer at NewAge and Shaklee, as well as senior marketing positions at Rodan & Fields, Obagi Medical and Nuvesse Skin Therapies. Julie is a classically trained CPG marketer who gained her consumer experience at Procter & Gamble, Johnson & Johnson and PepsiCo. She has deep expertise in health, beauty and eyecare products, as well as in consumer advertising and digital demand generation.  Ms. Garlikov has a Bachelor’s degree from the University of California, Berkley and a Master’s degree in Business Administration from Columbia University.
 
 

 
There is no other arrangement or understanding between Ms. Garlikov and any other person pursuant to which she was appointed as a director of the Company. In connection with her service, Ms. Garlikov will participate in the Company’s Non-Employee Director Compensation Program. Ms. Garlikov will not serve on any of the Board's committees at this time. 
 
Additionally, on January 27, 2022, Xinzhou (Paul) Li informed the Board that he will resign as a member of the Company’s Board, with such resignation to be effective immediately. Mr. Li did not resign as a result of any disagreements with the Company.
 
Effective January 27, 2022, upon the resignation of Mr. Li, the Board appointed Mr. Yongxiang (Sean) Zheng to fill the vacancy on the Board resulting from the resignation of Mr. Li. Mr. Sean Zheng will take Mr. Li’s place as a Class II director to serve until the Company’s 2024 Annual Meeting of Stockholders, subject to his prior death, resignation or removal from office as provided by law.
 
Mr. Sean Zheng, age 52, is the Chief Executive Officer of Q3 Medical Devices (Shanghai) Co. Ltd. (“Q3 Medical”). Prior to joining Q3 Medical, Mr. Sean Zheng held several Chief Executive positions, including MD of Boill Fund Management (HK) Co., Ltd. and MD and CEO of Sprott- Zijin Mining Fund, a JV fund between Zijin Mining Group and Sprott Asset Management LP.  Mr. Sean Zheng has more than 27 years’ experience in mergers and acquisitions, fund management, and import/export business.  Mr. Sean Zheng has been a CFA chartered holder since 2006 and graduated from Renmin University of China in 1992. He holds a B.S degree in Commodity Science. He received his MBA from the University of New South Wales in 2002, and he earned a masters degree of EMBA from China Europe International Business School (CEIBS) in 2010.
 
Mr. Sean Zheng was recommended as a director by certain large Chinese stockholders of the Company. There is no other arrangement or understanding between Mr. Sean Zheng and any other person pursuant to which he was appointed as a director of the Company. In connection with his service, Mr. Sean Zheng will participate in the Company’s Non-Employee Director Compensation Program. Mr. Sean Zheng will not serve on any of the Board's committees at this time. 
 
(e)
 
On January 26, 2022, the Compensation Committee of the Board approved, and the Company and Justin M. Hall, the Chief Executive Officer and General Counsel of the Company, entered into, a First Amendment, effective as of December 31, 2021 (the “Amendment”), to Mr. Hall’s Executive Employment Agreement, dated January 31, 2020 (the “Employment Agreement”), to extend the duration of the term of his Employment Agreement, which expired on December 31, 2021, to provide for a term ending December 31, 2023 (unless terminated earlier in accordance with the terms of the Employment Agreement).
 
The foregoing description of the terms of the Employment Agreement and the Amendment do not purport to be complete and are subject to, and are qualified in their entirety by, reference to the Employment Agreement and the Amendment, which are filed herewith as Exhibits 10.5 and 10.6, respectively, and are incorporated by reference.
 
Item 9.01         Financial Statements and Exhibits
 
(d)         Exhibits
 
Exhibit No.
 
Description
10.1
 
10.2
 
10.3+   Executive Employment Agreement with Dr. Audrey Kunin, dated November 5, 2021 (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 12, 2021)
10.4+   Side Letter with Dr. Audrey Kunin, dated November 5, 2021 (incorporated by reference to Exhibit 10.3 of the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 12, 2021)
10.5+
 
10.6+
 
99.1   Press Release, dated January 28, 2022
104
 
Cover Page Interactive Data File (embedded within the Inline XBRL document)
+ Indicates a management contract or compensatory plan or arrangement
 
 

 
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 M. Hall
Justin M. Hall
Chief Executive Officer and General Counsel
 
Dated: January 28, 2022
 
 

Exhibit 10.2

 

FIRST AMENDMENT TO OFFICE LEASE

 

This FIRST AMENDMENT TO OFFICE LEASE (this “Amendment”), dated as of January 19, 2022 (“Effective Date”), is entered into by and between KBSIII TOWERS AT EMERYVILLE, LLC, a Delaware limited liability company (“Landlord”), and NOVABAY PHARMACEUTICALS, INC., a Delaware corporation (“Tenant”).

 

R E C I T A L S:

 

A.         Pursuant to that certain Office Lease dated August 24, 2016 (the “Lease”), Tenant currently leases from Landlord those certain premises commonly known as Suite 1150 (the “Premises”) containing approximately 7,675 rentable square feet (as remeasured below), located at 2000 Powell Street, Emeryville, California (the “Building”), which is part of the Towers Emeryville (the “Project”), as more particularly described in the Lease.

 

B.         Capitalized terms not defined herein have the meanings given to such terms in the Lease.

 

C.         The Lease Term is scheduled to expire by its terms on February 28, 2022.

 

D.         The parties desire to amend the Lease in order to, among other things, extend the Lease Term, and further amend the Lease, pursuant to the terms and conditions set forth below.

 

A G R E E M E N T:

 

NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual covenants and agreements contained in this Amendment and other good and valuable consideration, the receipt and sufficiency of such are hereby acknowledged, Landlord and Tenant hereby agree as follows:

 

1.        Extended Term. The Lease Term is hereby extended for sixty-five (65) months (the “Extended Term”) commencing as of March 1, 2022 (the “Extended Term Commencement Date”), and expiring on July 31, 2027, unless sooner terminated in accordance with the terms of the Lease, as amended hereby (the “Amended Lease”). No such extension shall operate to release Tenant from liability for any amounts owed or defaults which exist under the Lease prior to the Extended Term Commencement Date.

 

2.        Base Rent. Prior to the Extended Term Commencement Date, Tenant shall continue to pay monthly Base Rent pursuant to the terms of the Lease. Commencing as of the Extended Term Commencement Date and continuing for the duration of the Extended Term, Tenant shall pay monthly Base Rent for the Premises in accordance with the following schedule:

 

Lease Months

Monthly Base Rent

3/1/2022 - 2/28/2023

$36,072.50

3/1/2023 - 2/29/2024

$37,154.68

3/1/2024 - 2/28/2025

$38,269.32

3/1/2025 - 2/28/2026

$39,417.40

3/1/2026 - 2/28/2027

$40,599.92

3/1/2027 - 7/31/2027

$41,817.92

 

PAGE  1

 

3.        Abated Amount. Notwithstanding the foregoing schedule, provided Tenant is not in default under the Amended Lease beyond any applicable notice and cure period, Landlord hereby agrees to abate Tenant’s obligation to pay the monthly Base Rent during the five (5) calendar months of March 2022, March 2023, March 2024, March 2025, and March 2026 (such aggregate amount of abated monthly Base Rent being hereinafter collectively referred to as the “Abated Amount”). During such abatement months, Tenant will still be responsible for the payment of all other monetary obligations under the Amended Lease, including, without limitation, Direct Expenses. Tenant acknowledges that any default by Tenant beyond applicable notice and cure periods will cause Landlord to incur costs not contemplated hereunder, the exact amount of such costs being extremely difficult and impracticable to ascertain. Therefore, should Tenant at any time be in default beyond applicable notice and cure periods, then in addition to all of Landlord’s other rights and remedies, the total unamortized sum of the Abated Amount (amortized on a straight line basis over the Extended Term) so conditionally excused shall become immediately due and payable by Tenant to Landlord; provided, however, Tenant acknowledges and agrees that nothing in this subsection is intended to limit any other remedies available to Landlord at law or in equity under applicable law (including, without limitation, the remedies under Civil Code Section 1951.2 and/or 1951.4 and any successor statutes or similar laws), in the event Tenant defaults under the Amended Lease beyond any applicable notice and cure period.

 

4.         Tenant Improvements.

 

(a)        Landlord shall provide to Tenant an allowance of up to $25.00 per rentable square foot of the Premises (i.e., up to $191,875.00, based on the Premises consisting of approximately 7,675 rentable square feet, hereinafter referred to as the “Allowance”) to be used by Tenant to design and complete interior improvements to refurbish the Premises (the “Tenant Improvements”) in accordance with and subject to the terms and conditions of Section 8 of the Lease with respect to Alterations, including, without limitation, the requirement that Tenant obtain Landlord’s prior written approval for the Tenant Improvements; provided, however, Tenant need not obtain Landlord’s approval for any portion of the Tenant Improvements which satisfies the conditions set forth in the last sentence of Section 8.1 of the Lease.  Landlord shall reimburse the Allowance after the completion of the Tenant Improvements and within thirty (30) days after Landlord’s receipt of (i) paid invoices from all of the contractors and/or subcontractors (“Tenant Contractors”) for labor rendered and materials delivered to the Premises, (ii) executed unconditional mechanic’s lien releases from all of the Tenant Contractors to whom payment is included in the Allowance, and (iii) all other information reasonably requested by Landlord.

 

(b)        The Allowance is applicable only to the Tenant Improvements, and shall not be used for any other purpose, such as, but not limited to, the purchase or installation of furniture, trade fixtures, or personal property.  If all or any portion of the Allowance shall not be used by December 31, 2022 (“Outside Date”), Landlord shall be entitled to the savings and Tenant shall receive no credit therefor.  Notwithstanding anything in this Amendment to the contrary, Landlord shall not be obligated to disburse any portion of the Allowance during the continuance of an uncured default under the Amended Lease.

 

(c)         Notwithstanding the foregoing, Tenant shall have the right to apply an unused portion of the Allowance in the amount of up to $16.00 per rentable square foot of the Premises (i.e., up to $122,800.00, based on the Premises consisting of approximately 7,675 rentable square feet) as a credit against Base Rent next coming due under the Amended Lease, provided that Tenant submits to Landlord written notice of such election and designates a credit against Base Rent to be applied prior to the Outside Date.  

 

PAGE  2

 

5.          Condition of the Premises. Tenant acknowledges that it is presently in possession of the Premises and is fully aware of the condition of the Premises. Tenant acknowledges that except as expressly provided above, Landlord shall not be obligated to refurbish or improve the Premises in any manner whatsoever or to otherwise provide funds for the improvement of the Premises in conjunction with this Amendment, and Tenant hereby accepts the Premises “AS-IS”. Tenant further acknowledges that except as expressly provided in the Lease or this Amendment, neither Landlord nor any agent of Landlord has made any representation or warranty regarding the condition of the Premises, the improvements, refurbishments, or alterations therein, or the Building or the Project or with respect to the functionality thereof or the suitability of any of the foregoing for the conduct of Tenant’s business and that all representations and warranties of Landlord, if any, are as set forth in the Lease and this Amendment. Pursuant to Section 1938 of the California Civil Code, Landlord hereby advises Tenant that as of the date of this Amendment neither the Premises, nor the Building, nor the Project has undergone inspection by a Certified Access Specialist. Further, pursuant to Section 1938 of the California Civil Code, Landlord notifies Tenant of the following: “A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.” Therefore and notwithstanding anything to the contrary contained in the Amended Lease, Landlord and Tenant agree that (a) Tenant may, at its option and at its sole cost, cause a CASp to inspect the Premises and determine whether the Premises complies with all of the applicable construction-related accessibility standards under California law, (b) the parties shall mutually coordinate and reasonably approve of the timing of any such CASp inspection so that Landlord may, at its option, have a representative present during such inspection, and (c) Tenant shall be solely responsible for the cost of any repairs necessary to correct violations of construction-related accessibility standards within the Premises, the Building, or the Project identified by any such CASp inspection. Tenant shall reimburse Landlord upon demand, as Additional Rent, for any cost to Landlord of performing such alterations and repairs; provided, however, unless such repair or alterations relate solely to other alterations to the Premises which Tenant is obligated to, or elects to, remove upon the expiration or earlier termination of the Amended Lease (in which case Tenant shall simultaneously also remove any CASp-identified alterations and repairs), Tenant shall have no obligation to remove any repairs or alterations made pursuant to a CASp inspection under this Section.

 

6.           Remeasurement; Direct Expenses.

 

(a)         The parties acknowledge that the Project, including the Building and the Premises, has been remeasured, and for all purposes under the Amended Lease, (i) the Project shall be deemed to consist of 816,090 rentable square feet, (ii) the Building shall be deemed to consist of 361,274 rentable square feet, and (iii) the Premises shall be deemed to consist of 7,675 rentable square feet.

 

(b)         Commencing as of the Effective Date and continuing for the duration of the Extended Term, (i) Tenant’s Share of Direct Expenses shall be 2.12% and (ii) the Base Year shall be adjusted to the calendar year 2022. For the avoidance of doubt, the foregoing computation means Tenant shall have no liability for Tenant’s Share of Direct Expenses from and after the Effective Date until January 1, 2023.

 

(c)         Tenant acknowledges that:  (i) the Towers Emeryville project is separately owned by Landlord and a third party, but is currently operated and managed as a single project, and (ii) Landlord shall have the right, from time to time, to equitably allocate some or all of the Direct Expenses among different tenants, buildings and/or premises, including, without limitation, retail and office areas (the “Cost Pools”), in Landlord’s reasonable discretion.  Such Cost Pools may include, for example, the buildings owned by Landlord but not buildings owned by other parties.

 

7.            Parking. During the Extended Term, Tenant shall continue to be entitled to use up to a maximum of twenty (20) unreserved parking spaces and three (3) reserved parking spaces (such parking spaces are in lieu of, and not in addition to, any parking spaces as to which Tenant was previously granted rights under the Lease). Tenant shall pay Landlord’s prevailing parking charges, as the same may be adjusted by Landlord from time to time, currently at the rate of $120.00 per unreserved stall per month and $150.00 per reserved stall per month. Tenant’s use of all such parking shall otherwise be subject to the terms and provisions of the Amended Lease.

 

PAGE  3

 

8.            Extension Option. Tenant shall continue to have one (1) Extension Option of five (5) years, subject to the terms and conditions of Rider No. 1 to Lease. Landlord and Tenant hereby acknowledge and agree that any other provisions of the Lease providing for an extension or renewal of the Lease Term are hereby deleted in their entirety and Tenant has no other options to extend or renew the Extended Term of the Amended Lease.

 

9.           Letter of Credit. No additional Letter of Credit or Security Deposit shall be required in connection with this Amendment. Concurrently with the execution of this Amendment, Tenant shall deliver a renewal of the existing Letter of Credit in the amount of $323,658.50, which shall update the Final LC Expiration Date to November 28, 2027.

 

10.            After-Hours HVAC. For informational purposes, the current after-hours usage charge for the Building is $72.00 per hour.

 

11.            Landlords Addresses. Landlord’s addresses for notices and payment of Rent are hereby amended as follows:

 

  Landlord’s Notice Address: KBSIII Towers At Emeryville, LLC
    c/o KBS Capital Advisors, LLC
    800 Newport Center Drive, Suite 700
    800 Newport Center Drive, Suite 700
    Newport Beach, CA 92660
    Attn: General Counsel
     
  With a copy to: KBSIII Towers At Emeryville, LLC
    c/o KBS Capital Advisors, LLC
    800 Newport Center Drive, Suite 700
    Newport Beach, CA 92660
    Attn: Brent Carroll, Asset Manager
     
  Landlord’s Address for Payment KBSIII Towers At Emeryville, LLC
  of Rent: P.O. Box 740905
    Los Angeles, CA 90074-0905
     
  For payment of Parking Charges: LAZ Parking
    2000 Powell Street, Suite 100
    Emeryville, CA 94608

 

12.           Representations and Warranties. Tenant hereby represents, warrants, and agrees that, to Tenant’s actual knowledge: (a) there exists no breach, default, or event of default by Landlord under the Lease, or any event or condition which, with notice or passage of time or both, would constitute a breach, default, or event of default by Landlord under the Lease; (b) the Lease continues to be a legal, valid, and binding agreement and obligation of Tenant; and (c) Tenant has no current offset or defense to its performance or obligations under the Lease. Landlord hereby represents, warrants, and agrees that, to Landlord’s actual knowledge: (a) there exists no breach, default, or event of default by Tenant under the Lease, or any event or condition which, with notice or passage of time or both, would constitute a breach, default, or event of default by Tenant under the Lease; (b) the Lease continues to be a legal, valid, and binding agreement and obligation of Landlord; and (c) Landlord has no current offset or defense to its performance or obligations under the Lease.

 

13.            Authority. Each signatory of this Amendment on behalf of Tenant represents hereby that he or she has the authority to execute and deliver the same on behalf of the party hereto for which such signatory is acting.

 

14.          Successors and Assigns. This Amendment shall extend to, be binding upon, and inure to the benefit of, the respective successors and permitted assigns and beneficiaries of the parties hereto.

 

PAGE  4

 

15.           Broker. Tenant represents and warrants to Landlord that, with the exception of Cushman & Wakefield, representing Landlord, and Newmark, representing Tenant, it is not aware of any brokers, agents or finders who may claim a fee or commission in connection with the consummation of the transactions contemplated by this Amendment. If any claims for brokers’ or finders’ fees in connection with the transactions contemplated by this Amendment arise, then Tenant agrees to indemnify, protect, hold harmless and defend Landlord (with counsel reasonably satisfactory to Landlord) from and against any such claims if they shall be based upon any statement, representation or agreement made by Tenant.

 

16.            No Other Modification. Landlord and Tenant agree that except as otherwise specifically modified in this Amendment, the Lease has not been modified, supplemented, amended, or otherwise changed in any way and the Lease remains in full force and effect between the parties hereto as modified by this Amendment. To the extent of any inconsistency between the terms and conditions of the Lease and the terms and conditions of this Amendment, the terms and conditions of this Amendment shall apply and govern the parties. This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. For purposes of this Amendment, signatures by facsimile or electronic PDF shall be binding to the same extent as original signatures.

 

[NO FURTHER TEXT ON THIS PAGE; SIGNATURES ON FOLLOWING PAGE]

 

PAGE  5

 

 

IN WITNESS WHEREOF, the parties have executed this Amendment as of the date set forth above.

 

Tenant:

 

NOVABAY PHARMACEUTICALS, INC.,

a Delaware corporation

 

 

By: /s/ Justin M. Hall___________
Name: Justin M. Hall
Title: CEO

 

 

Landlord:

KBSIII TOWERS AT EMERYVILLE, LLC,
a Delaware limited liability company

 

   

By:         KBS Capital Advisors, LLC,
a Delaware limited liability company
Its: Authorized Agent

 

   

 

By:

/s/ Brent Carroll    

Name:         

Brent Carroll    

Title:       

Senior Vice President    
Date signed 1/24/22    

 

PAGE  6

Exhibit 10.6

 

FIRST AMENDMENT TO

EXECUTIVE EMPLOYMENT AGREEMENT

 

This First Amendment, effective as of December 31, 2021 (the “Amendment”), to the Executive Employment Agreement dated January 31, 2020, by and between NovaBay Pharmaceuticals, Inc. (the “Company”) and Justin M. Hall (“Executive”) (the “Agreement”).

 

WHEREAS, the Company and Executive desire to amend the Agreement to extend the term of the Executive’s employment with the Company.

 

NOW, THEREFORE, in consideration of the foregoing recital, the mutual covenants herein contained and for other good and valuable consideration, the parties hereby agree as follows:

 

1.          Amendments to the Agreement. Effective as of the date hereof:

 

(a)         Section I(B) of the Agreement is hereby amended as follows:

 

 B.          Term. Executive’s employment with the Company is at-will and shall be governed by the terms of this Agreement, commencing on January 1, 2022 and continuing to and including December 31, 2023, unless this Agreement is terminated at some earlier time in accordance with the terms of this Agreement.

 

2.         No Other Changes. Except as expressly stated herein, this Amendment does not amend or otherwise modify any of the terms or conditions of the Agreement, which shall remain in full force and effect pursuant to its terms. Any terms not defined herein shall have the meaning set forth in the Agreement. To the extent applicable, each party hereby represents and warrants that its respective signatory has been and is on the date of this Amendment duly authorized by all necessary corporate action to execute this Amendment.

 

3.             Governing Law. This Amendment shall be governed by the laws of the State of California, without regard for choice-of-law provisions. Executive consents to personal and exclusive jurisdiction and venue in the State of California.

 

4.            Counterparts. This Amendment may be executed in counterparts and by electronic mail, and each counterpart shall have the same force and effect as an original and shall constitute an effective, binding agreement on the part of each of the undersigned.

 

[Signature Page Follows]

 

 

 

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and Executive has hereunto set his hand, all as of January 26, 2022.

 

 

NOVABAY PHARMACEUTICALS, INC.

 

 

 

 

 

       

 

 

 

 

 

By:

/s/ Paul Freiman

 

 

 

Name: Paul Freiman

 

 

 

Title: Chairman

 

 

 

 

EXECUTIVE

 

 

 

 

 

 

 

 

 

 

By:

/s/ Justin M. Hall

 

 

 

Name: Justin M. Hall

 

 

 

Exhibit 99.1

 

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NovaBay Pharmaceuticals Announces Changes to Its Board of Directors

 

EMERYVILLE, Calif. (January 28, 2022)NovaBay® Pharmaceuticals, Inc. (NYSE American: NBY), a pharmaceutical company focused on developing and commercializing high-quality, scientifically formulated products for the eyecare and skincare markets, announces the appointments of Audrey Kunin, M.D. and Julie Garlikov to the NovaBay Board of Directors. Dr. Kunin is a recognized leader in the skincare product industry and has served as NovaBay’s Chief Product Officer since its acquisition in November 2021 of DERMAdoctor, LLC, a company she cofounded. Ms. Garlikov brings to NovaBay more than 25 years of marketing experience, including deep expertise in health, beauty, eyecare and dermatology products.

 

NovaBay also announces the resignation of Zhang Xinzhou (Paul) Li as a director. His vacancy is being filled by Yongxiang (Sean) Zheng. All changes to the Board of Directors are effective immediately and result in an increase to the size of NovaBay’s Board from six to eight members.

 

“This is an exciting, transformational time at NovaBay with the recent addition of DERMAdoctor and our planned further expansion into the large, lucrative OTC eyecare and skincare markets. We are delighted to welcome professionals to our Board who bring highly relevant experience and records of success,” said Paul E. Freiman, Board Chairman. “In less than two months Audrey has proven her leadership skills and industry knowledge, and is instrumental to our new product strategy and the development of innovative products for both the skincare and eyecare markets. We look forward to calling upon Julie’s expertise and fresh ideas, particularly in formulating effective digital and social media strategies to create brand awareness and demand generation for our products”.

 

“Sean has international experience in the medical device arena and was recommended to fill our Board vacancy by several of our large ex-US stockholders,” he added. “The Board would like to thank Paul for his valuable contributions over his nearly seven years of service as a director.”

 

“We have created a new NovaBay with the acquisition of DERMAdoctor with revenues diversified across the eyecare and skincare markets and a path toward profitability,” said Justin Hall, NovaBay CEO. “With the addition of our new directors, our Board better reflects our new direction with added industry and marketing expertise that we expect will be highly valuable to our success.”

 

Dr. Kunin has been the creative force behind all DERMAdoctor products since 1998. At DERMAdoctor, she led the formulation and development of numerous innovative skincare products. Dr. Kunin graduated from Ohio State University and received her M.D. from the Medical College of Ohio. She completed postgraduate training in dermatology at the Medical College of Virginia after serving as Chief Resident. She is a fellow of the American Academy of Dermatology and formerly served as an Assistant Clinical Instructor of Dermatology at the University of Kansas School of Medicine.

 

Ms. Garlikov is a classically trained consumer product goods marketer who gained her consumer experience at Procter & Gamble, Johnson & Johnson and PepsiCo. Since 2020 she has served as Vice President of Marketing of GRAIL, LLC, a multi-cancer early detection company. Prior to GRAIL she was Chief Marketing Officer at NewAge, Inc., a healthy products company where she led all aspects of global marketing including product development, creative, social media, digital and branding. She previously was Chief Marketing Officer of Shaklee Corporation and held senior marketing positions at dermatological skincare companies Rodan + Fields, Obagi Medical and Nuvesse Skin Therapies. Ms. Garlikov holds a BA from the University of California, Berkeley and an MBA from Columbia University.

 

 

 

 

Mr. Zheng brings to NovaBay more than 27 years of experience in mergers and acquisitions, fund management and the import/export business. He is CEO of Q3 Medical Devices (Shanghai) Co. Ltd., having previously held CEO and Managing Director positions at Boill Fund Management (HK) Co., Ltd. and Sprott-Zijin Mining Fund, a joint venture fund between Zijin Mining Group and Sprott Asset Management LP. Mr. Zheng is a chartered financial analyst and graduated from China’s Renmin University . He received an MBA from the University of New South Wales in 2002, and an MA of EMBA from China Europe International Business School in 2010.

 

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. Avenova® is the most prescribed antimicrobial lid and lash spray and CelleRx® is a breakthrough product in the beauty category. In November 2021, NovaBay acquired DERMAdoctor, LLC, a company offering more than 30 dermatologist-developed skincare products sold through traditional domestic retailers, digital beauty channels and international distributors.

 

NovaBay Pharmaceuticals Forward-Looking Statements

Except for historical information herein, matters set forth in this press release may be forward looking within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995, including statements about the commercial progress and future financial performance of NovaBay Pharmaceuticals, Inc. This release contains forward-looking statements that are based upon management’s current expectations, assumptions, estimates, projections and beliefs. These statements include, but are not limited to, statements regarding our business strategies, current product offerings, marketing efforts, and any future revenue that may result from selling such products, as well as generally the Company’s expected future financial results. 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 the forward-looking statements. Factors that might cause or contribute to such differences include, but are not limited to, risks and uncertainties relating to the size of the potential market for our products, the integration of DERMAdoctor’s business into the Company’s business, the possibility that the available market for the Company’s products will not be as large as expected, the Company’s products will not be able to penetrate one or more targeted markets, and revenues will not be sufficient to meet the Company’s cash needs. 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/K filings 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.

 

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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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