Exhibit 4.2
| As filed with the Securities and Exchange Commission on June 21, 2024. | Registration No. 333- |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NovaBay Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
68-0454536 |
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(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
2000 Powell Street, Suite 1150, Emeryville, CA 94608
(510) 899-8800
(Address, including zip code, of Principal Executive Offices)
2017 Omnibus Incentive Plan
(Full title of the plan)
Justin M. Hall, Esq.
Chief Executive Officer and General Counsel
2000 Powell Street, Suite 1150
Emeryville, CA 94608
(510) 899-8800
(Name, address, and telephone number, including area code, of agent for service)
Copies to:
Abby E. Brown, Esq.
Squire Patton Boggs (US) LLP
2550 M Street, Northwest
Washington, DC 20037
(202) 457-6000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ☐ | Accelerated filer ☐ |
| Non-accelerated filer ☒ | Smaller reporting company ☒ |
| 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 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
This Registration Statement on Form S-8 registers a total of 12,219 shares of common stock, par value $0.01 per share (the “Common Stock”), of NovaBay Pharmaceuticals, Inc., a Delaware corporation (the “Company”), for issuance under the NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive Plan (the “Plan”). The shares of Common Stock being registered by this Registration Statement give effect to the Company’s 1-for-35 reverse stock split that was effective on May 30, 2024 (the “2024 Reverse Stock Split”).
The number of shares of Common Stock available for issuance under the stockholder-approved Plan is subject to an automatic annual increase on the first day of each of the Company’s fiscal years beginning on January 1, 2018 and ending on January 1, 2027 by an amount equal to (i) four percent (4%) of the number of shares of Common Stock outstanding on the last day of the immediately preceding fiscal year or (ii) such lesser number of shares of Common Stock as determined by the Board of Directors (the “Board”). For 2024, the Board authorized an increase of 12,219 shares of the Common Stock under the Plan, consisting of the full four percent (4%) increase allowed pursuant to the Plan’s evergreen provision. These shares are in addition to the 1,892 shares of Common Stock registered on the Company’s Form S-8 filed on June 2, 2017 (File No. 333-218469), the 17,582 shares of Common Stock registered on the Company’s Form S-8 filed on January 19, 2018 (File No. 333-222625) pursuant to the annual increase in 2018 according to the Plan’s evergreen provision, the 1,470 shares of Common Stock registered on the Company’s Form S-8 filed on February 7, 2020 (File No. 333-236328) pursuant to the annual increases in 2019 and 2020 according to the Plan’s evergreen provision (with 558 shares of Common Stock from the 2019 annual increase and 912 shares of Common Stock from the 2020 annual increase), the 1,364 shares of Common Stock registered on the Company’s Form S-8 filed on January 15, 2021 (File No. 333-252155) pursuant to the annual increase in 2021 according to the Plan’s evergreen provision, the 1,559 shares of Common Stock registered on the Company’s Form S-8 filed on May 13, 2022 (File No. 333-264953) pursuant to the annual increase in 2022 according to the Plan’s evergreen provision, and the 2,326 shares of Common Stock registered on the Company’s Form S-8 filed on March 31, 2023 (File No. 333-271053) pursuant to the annual increase in 2023 according to the Plan’s evergreen provision.
Since the Plan provides that the annual increase in the aggregate number of shares that may be issued pursuant to the Plan’s evergreen provision begins for fiscal years commencing January 1, 2018, this Registration Statement accounts for the seventh share increase under the evergreen provision. The number of shares of Common Stock registered under each prior Registration Statement listed above has been adjusted to account for all previous stock splits, including the 2024 Reverse Stock Split (collectively, the “Reverse Split Transactions”).
The contents of the prior Registration Statements on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on June 2, 2017, January 19, 2018, February 7, 2020, January 15, 2021, May 13, 2022 and March 31, 2023 (File Nos. 333-218469, 333-222625, 333-236328, 333-252155, 333-264953 and 333-271053, respectively), are incorporated herein by reference and made part of this Registration Statement.
This Registration Statement relates to securities of the same class as those to which the prior Registration Statements listed directly above relate, and is submitted in accordance with General Instruction E to Form S-8 regarding the Registration of Additional Securities. Pursuant to General Instruction E of Form S-8, the contents of the prior Registration Statements are incorporated herein by reference and made part of this Registration Statement, except as amended hereby.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. |
Incorporation of Documents by Reference. |
The following documents filed by the Company with the Commission are incorporated by reference into this Registration Statement:
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1. |
The Company’s Annual Report on Form 10-K for the year ended December 31, 2023, as filed with the Commission on March 26, 2024, and as amended by Amendment No. 1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2023, as filed with the Commission on March 29, 2024; |
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2. |
The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, as filed with the Commission on May 9, 2024; |
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The Company’s Current Reports on Form 8-K filed with the Commission on January 10, 2024, March 14, 2024, March 25, 2024, March 26, 2024 (as amended on May 31, 2024), April 19, 2024, April 22, 2024, May 29, 2024, May 31, 2024, June 7, 2024 and June 14, 2024; and |
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4. |
The description of the Company’s Common Stock which is contained in the Company’s registration statement on Form 8-A, as filed with the Commission on August 29, 2007, as updated by the Company’s Current Report on Form 8-K filed with the Commission on June 29, 2011, and including any amendments or reports filed for the purposes of updating this description, including Exhibit 4.1 to the Company’s Annual Report for the year ended December 31, 2023. |
All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents. Any such information so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.
Notwithstanding the foregoing, we are not incorporating by reference information furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits, nor any other document or information deemed to have been furnished and not filed in accordance with Commission rules.
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Item 4. |
Description of Securities. |
Not applicable.
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Item 5. |
Interests of Named Experts and Counsel. |
The validity of the issuance of the shares of Common Stock registered under this Registration Statement has been passed upon for the Company by Squire Patton Boggs (US) LLP.
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Item 6. |
Indemnification of Directors and Officers. |
The Company’s amended and restated certificate of incorporation, as amended, provides that the liability of the directors for monetary damages shall be eliminated to the fullest extent under applicable law. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Company shall be eliminated to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Under the Delaware General Corporation Law, no director will be personally liable to the Company or the Company’s stockholders for monetary damages for breach of fiduciary duty as a director, except for liability:
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for any breach of the duty of loyalty to the Company or the Company’s stockholders; |
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for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
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for unlawful payment of dividends or unlawful stock repurchases or redemptions under Section 174 of the Delaware General Corporation Law; and |
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for any transaction from which the director derived an improper personal benefit. |
The Company’s amended and restated bylaws provide that:
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the Company is required to indemnify the Company’s directors and executive officers to the fullest extent not prohibited by Delaware law, subject to limited exceptions; |
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the Company may indemnify the Company’s other employees and agents as set forth in the Delaware General Corporation Law; |
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the Company is required to advance expenses to the Company’s directors and executive officers as incurred in connection with legal proceedings against them for which they may be indemnified, against an undertaking by the indemnified party to repay such advances if it is ultimately determined that the indemnified party is not entitled to indemnification; and |
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the rights conferred in the amended and restated bylaws are not exclusive. |
The information provided above is a summary of relevant provisions of our amended and restated certificate of incorporation, as amended, our amended and restated bylaws and certain provisions of the Delaware General Corporation Law. We urge you to read the full text of these documents, forms of which have been filed with the Commission, as well as the referenced provisions of the Delaware General Corporation Law because they are the legal documents and provisions that will govern matters of indemnification with respect to our directors and officers.
The Company has entered into indemnification agreements with each of the Company’s directors and executive officers that require the Company to indemnify these persons against all direct and indirect costs of any type or nature whatsoever, including attorney’s fees, witness fees, and other out-of-pocket costs of whatever nature, incurred by the director or officer in any action or proceeding, whether actual, pending or threatened, subject to certain limitations, to which any of these people may be made a party by reason of the fact that he or she is or was a director or an executive officer of the Company or is or was serving or at any time serves at the request of the Company as a director, officer, employee or other agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
The Company has purchased insurance on behalf of any person who is or was a director or officer of the Company against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
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Item 7. |
Exemption from Registration Claimed. |
Not applicable.
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Item 8. |
Exhibits. |
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Exhibit No. |
Description of Document |
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3.1 |
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3.2 |
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3.3 |
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3.4 |
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3.5 |
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3.6 |
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3.7 |
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3.8 |
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3.9 |
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3.10 |
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4.1 |
Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9 and 3.10. |
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4.2* |
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5.1* |
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23.1* |
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23.2* |
Consent of Squire Patton Boggs (US) LLP (included in Exhibit 5.1) |
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24.1* |
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99.1 |
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99.2 |
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107* |
* Exhibits marked with an asterisk (*) are filed herewith.
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Item 9. |
Undertakings. |
Incorporated by reference to Item 9 in the Company’s Registration Statement on Form S-8, filed with the Commission on June 2, 2017.
Pursuant to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Emeryville, State of California on June 21, 2024.
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NOVABAY PHARMACEUTICALS, INC. |
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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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KNOW ALL PERSONS BY THESE PRESENTS that each of the undersigned officers and directors does hereby constitute and appoint Justin M. Hall or his substitute or substitutes, as his or her true and lawful attorney-in-fact and agent, with full power and authority to do any and all acts and things and to execute and file or cause to be filed any and all instruments, documents or exhibits which said attorney and agent determines may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement and to any and all instruments, documents or exhibits filed as part of, or in conjunction with, this Registration Statement or amendments or supplements thereof, with the powers of substitution and revocation, and each of the undersigned hereby ratifies and confirms all that said attorney and agent, or his substitute or substitutes, shall lawfully do or cause to be done by virtue hereof. In witness whereof, each of the undersigned has executed this Power of Attorney as of the dates indicated below.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. This document may be executed by the signatories hereto on any number of counterparts, all of which shall constitute one and the same instrument.
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Signature |
Title |
Date |
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| /s/ Justin M. Hall |
Chief Executive Officer, General Counsel and Director |
June 21, 2024 |
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Justin M. Hall |
(principal executive officer) |
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| /s/ Tommy Law |
Interim Chief Financial Officer |
June 21, 2024 |
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Tommy Law |
(principal financial and accounting officer) |
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| /s/ Paul E. Freiman |
Chairman |
June 21, 2024 |
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Paul E. Freiman, Ph.D |
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| /s/ Julie Garlikov |
Director |
June 21, 2024 |
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Julie Garlikov |
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| /s/ Swan Sit |
Director |
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June 21, 2024 |
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Swan Sit |
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| /s/ Mijia (Bob) Wu |
Director |
June 21, 2024 |
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Mijia (Bob) Wu |
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| /s/ Yenyou (Jeff) Zheng |
Director |
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June 21, 2024 |
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Yenyou (Jeff) Zheng, Ph.D |
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| /s/ Yongxiang (Sean) Zheng |
Director |
June 21, 2024 |
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Yongxiang (Sean) Zheng |
Exhibit 4.2
Exhibit 5.1
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Squire Patton Boggs (US) LLP 2550 M Street, NW
O +1 202 457 6000 F +1 202 457 6315 squirepattonboggs.com |
June 21, 2024
Board of Directors
NovaBay Pharmaceuticals, Inc.
2000 Powell Street, Suite 1150
Emeryville, CA 94608
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Re: |
Registration on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to NovaBay Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with a Registration Statement on Form S-8 (together with all exhibits thereto, the “Registration Statement”) filed by the Company with the United States Securities and Exchange Commission (the “Commission”) on the date hereof relating to the registration under the Securities Act of 1933, as amended (the “Act”), of 12,219 additional shares of the Company’s common stock, par value $0.01 per share (the “Plan Shares”), reserved for issuance pursuant to the evergreen provision for fiscal year 2024 of the Company’s 2017 Omnibus Incentive Plan (the “Plan”).
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined the Registration Statement and such documents, corporate records and other instruments as we have deemed necessary or appropriate for purposes of this opinion. In such examination and in rendering our opinion, we have assumed and have relied upon (i) the authenticity of all documents, certificates, records and instruments submitted to us as originals, the genuineness of all signatures, (ii) the legal capacity of all natural persons, (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the Registration Statement and other records, documents, instruments and certificates we have reviewed, and (iv) the conformity to authentic originals of all documents, certificates, records and instruments submitted to us as copies. Insofar as this opinion relates to Plan Shares to be issued in the future, we have assumed that all applicable laws, rules and regulations in effect at the time of issuance are the same as such laws, rules and regulations in effect as of the date hereof. We have also assumed that the Plan Shares, when issued, will be duly authenticated by the transfer agent and registrar for the Plan Shares, that there will be no changes in the documents, certificates, records and instruments that we have examined, that all Plan Shares will be issued in the manner stated in the Registration Statement, that the Company’s Board of Directors, or a duly authorized committee thereof, will take all necessary corporate action, including under the terms of the Plan, to authorize and approve the issuance of Plan Shares and that, at all times prior to the issuance of the Plan Shares, the Company will maintain a sufficient number of authorized but unissued shares of common stock available for issuance.
| Squire Patton Boggs (US) LLP |
Board of Directors NovaBay Pharmaceuticals, Inc. June 21, 2024 |
Based upon and subject to the foregoing qualifications, assumptions and limitations and subject to the further qualifications set forth in this opinion letter, we are of the opinion that the Plan Shares, when issued, delivered and paid for in accordance with the terms of the Plan, including any applicable award agreements, will be validly issued, fully paid and non-assessable.
Our opinion is limited to the General Corporation Law of the State of Delaware as in effect on the date hereof (including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting the General Corporation Law of the State of Delaware as of the date hereof). We do not express any opinion as to the laws of any other jurisdiction. The opinion expressed above is limited to the matters stated in this opinion letter, and no opinion is implied or may be inferred beyond those expressly stated in this opinion letter.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and to the use of our name therein. In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Act or under the rules and regulations of the Commission.
This opinion is furnished to you in connection with the filing of the Registration Statement, and is not to be used, circulated, quoted or otherwise relied upon for any other purpose, except as expressly provided in the preceding paragraph. This opinion is given as of the effective date of the Registration Statement, and we assume no obligation to update or supplement this opinion letter contained herein to reflect any facts or circumstances which may hereafter come to our attention or any changes in laws or judicial decisions which may hereafter occur.
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Sincerely,
/s/ Squire Patton Boggs (US) LLP
Squire Patton Boggs (US) LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 26, 2024, relating to the consolidated financial statements of NovaBay Pharmaceuticals, Inc. (the “Company”) as of and for the years ended December 31, 2023 and 2022 included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023, which included an explanatory paragraph related to substantial doubt about the Company’s ability to continue as a going concern.
/s/ WithumSmith+Brown, PC
San Francisco, California
June 21, 2024
Exhibit 107
Calculation of Filing Fee Table
S-8
(Form Type)
NovaBay Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
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Security Type |
Security Class Title(1) |
Fee Calculation or Carry Forward Rule |
Amount Registered(1) |
Proposed Maximum Offering Price Per Share |
Maximum Aggregate Offering Price(2) |
Fee Rate |
Amount of Registration Fee |
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Equity |
Common Stock, par value $0.01 per share(3) |
457(c), (h) |
12,219 |
$2.44 |
$29,814.36 |
0.00014760 |
$4.40 |
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Total Offering Amounts: |
$29,814.36 |
$4.40 |
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Total Fees Previously Paid: |
— |
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Total Fee Offsets: |
— |
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Net Fee Due: |
$4.40 |
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(1) |
This represents an automatic increase in the number of shares of common stock of the registrant reserved for issuance under the NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive Plan, pursuant to an evergreen provision contained in Section 4(a) therein. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional securities that may from time to time be offered or issued resulting from any stock splits, stock dividends, recapitalizations or other similar transactions. |
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(2) |
This calculation is made solely for the purpose of determining the registration fee pursuant to the provisions of Rule 457(c) and (h) under the Securities Act, based on the average of the high and low sales prices of the registrant’s common stock on June 18, 2024, as reported by NYSE American LLC. |