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: October 12, 2020

NovaBay Pharmaceuticals, Inc.

(Exact Name of Registrant as Specified in Charter)

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):

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

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 8.01     Other Information

As previously reported, on April 12, 2019, NovaBay Pharmaceuticals, Inc. (the “Company”) received a letter from the NYSE American notifying the Company that its stockholders’ equity as of December 31, 2018 was below the minimum requirements of Section 1003(a)(iii) of the NYSE American Company Guide (the “Company Guide”) (requiring stockholders’ equity of $6.0 million or more if a company has reported losses from continuing operations and/or net losses in its five most recent fiscal years). On May 16, 2019, the Company was further notified by the NYSE American that the Company was not in compliance with the minimum stockholders’ equity requirements of Sections 1003(a)(i) and 1003(a)(ii) of the Company Guide requiring stockholders’ equity of $2.0 million or more and $4.0 million or more, respectively, if the Company has reported losses from continuing operations and/or net losses in three of the four most recent fiscal years. The Company subsequently submitted a plan to regain compliance on May 11, 2019, and the Company was notified on June 27, 2019 that the Company’s plan to regain compliance had been accepted and that the Company was provided through October 12, 2020, under such plan, to regain such compliance.

As shown below, the Company’s pro forma stockholders’ equity as of October 12, 2020, is approximately $14 million, which is above the $6 million required to comply with Sections 1003(a)(i) through (iii) of the Company Guide. As a result, the Company believes that it has regained compliance with Sections 1003(a)(i) through (iii) of the Company Guide as of the end of the plan period, provided that the NYSE American has not yet confirmed such compliance and has advised the Company that while the Company’s pro forma stockholders’ equity appears to meet the requirements, they will not issue a letter of compliance to the Company until after the Company files its Quarterly Report on Form 10-Q for the quarter ended September 30, 2020, formally confirming the Company’s re-compliance. If the NYSE American does not confirm the Company’s compliance with Sections 1003(a)(i) through (iii) of the Company Guide and/or if the Company becomes non-compliant with any of the other listing requirements of the NYSE American, the NYSE American staff may initiate delisting proceedings as appropriate.

The following table sets forth (on an unaudited basis) the Company’s stockholders’ equity position as of June 30, 2020, and as adjusted on a pro-forma basis as of October 12, 2020 to reflect the results of operations through October 12, 2020 (in thousands, except par value amounts):

*Unaudited

The pro forma financial information above is provided for informational purposes only, has not been reviewed or audited by the Company’s independent auditors, may be subject to additional changes, adjustments and modifications as part of the review/audit process, and may not accurately reflect the Company’s stockholders’ equity as presented in the Company’s reviewed or audited financial statements as of the periods presented and/or as of June 30, 2020 and/or October 12, 2020.

On October 12, 2020, the Company issued a press release regarding the matters discussed above. A copy of the press release is attached as Exhibit 99.1 hereto and incorporated in this Item 8.01 by reference.

Item 9.01.     Financial Statements and Exhibits.

(d)          Exhibits.

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.

Dated: October 13, 2020

Exhibit 99.1

NovaBay Pharmaceuticals Regains Compliance with NYSE American Listing Standards

EMERYVILLE, Calif. (October 8, 2020) – NovaBay^® Pharmaceuticals, Inc. (NYSE American: NBY) announces it believes that it has regained full compliance with the NYSE American’s continued listing standards, subject to NYSE American’s formal confirmation that the Company has regained compliance after the Company files its Quarterly Report on Form 10-Q for the quarter ended September 30, 2020.

“I’m proud of our ability to meet and maintain the NYSE American’s listing standards, which is important to our Company and our shareholders,” said Justin Hall, NovaBay CEO. “We regained compliance with the listing requirements by successfully completing several financings including the exercise of warrants that also reduced our debt and simplified our capital structure. With these financings completed, we have strengthened our balance sheet and improved our position to support future growth.”

As previously disclosed, the Company was notified by NYSE American on April 12, 2019 that it was not in compliance with the NYSE American’s continued listing standards including the minimum stockholders’ equity requirement of Section 1003(a)(iii) of the NYSE American Company Guide requiring stockholders’ equity of $6.0 million or more if the Company has reported losses from continuing operations and/or net losses in its five most recent fiscal years. The Company was given until October 12, 2020 to come back into full compliance. As required by NYSE American, the Company also continues to remain above the “low price per share” (which is generally considered to be $0.20 per share per NYSE American policy).

NovaBay also announced that it has applied to the Ontario Securities Commission (the “OSC”) for an order to cease to be a reporting issuer under applicable securities laws in certain Canadian jurisdictions, including British Columbia, Alberta, Manitoba and Ontario (the “Jurisdictions”). The Company became a reporting issuer in the Jurisdictions in connection with its initial public offering in October 2007 in order to offer and sell its common stock to Canadian residents. The Company is making such application as part of its general and administrative expense reduction initiatives.      

If the requested order is granted by the OSC, the Company will no longer be a reporting issuer in any jurisdiction of Canada and will no longer be required to file financial statements and other documents in Canada pursuant to Canadian securities law. However, the Company will continue to file all financial statements and other materials required to be filed in accordance with the applicable laws of the U.S. Securities and Exchange Commission (SEC) and the rules of the NYSE American, where the Company is listed.

Canadian resident security holders will continue to have access to all financial statements and other documents required to be filed publicly by the Company on the Company’s website, www.novabay.com or at www.sec.gov. An order by the OSC granting NovaBay’s application will not affect the Company’s NYSE American listing.

About NovaBay Pharmaceuticals, Inc.: Going Beyond Antibiotics^®

NovaBay Pharmaceuticals, Inc. is a biopharmaceutical company focusing on commercializing and developing its non-antibiotic anti-infective products to address the unmet therapeutic needs of the global, topical anti-infective market with its two distinct product categories: the NEUTROX^® family of products and the AGANOCIDE^® compounds. The Neutrox family of products includes AVENOVA^® for the eye care market, NEUTROPHASE^® for wound care market, and CELLERX^® for the aesthetic dermatology market. The Aganocide compounds, still under development, have target applications in the dermatology and urology markets.

Forward-Looking Statements

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 NYSE American listing status, our future momentum and 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 NYSE American’s formal review and confirmation that we have regained compliance with NYSE American’s listing standards and our ability to remain a publicly listed company by complying with all NYSE American listing standards including maintaining the minimum stockholder’ equity in the future. 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 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.

www.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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