Novabay Pharmaceuticals Annual Report 2021

Plain-text annual report

Table of Contents UNITED STATESSECURITIES AND EXCHANGE COMMISSIONWashington, D.C. 20549 FORM 10-K (Mark One)☒ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 2021 OR ☐TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission file number 001-33678 NOVABAY PHARMACEUTICALS, INC.(Exact name of registrant as specified in its charter) Delaware68-0454536(State or other jurisdiction of incorporation or organization)(I.R.S. Employer Identification No.) 2000 Powell Street, Suite 1150, Emeryville, California 94608(Address of principal executive offices) (Zip Code) Registrant’s Telephone Number, Including Area Code: (510) 899-8800 Securities Registered Pursuant to Section 12(b) of the Act: Title of Each ClassTrading Symbol(s)Name of Each Exchange On Which RegisteredCommon Stock, par value $0.01 per shareNBYNYSE American Securities Registered Pursuant to Section 12(g) of the Act: None. Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒ Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Exchange Act. Yes ☐ No ☒ Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during thepreceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90days. Yes ☒ No ☐ Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 ofRegulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).Yes ☒ No ☐ 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 emerginggrowth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of theExchange Act. (Check one): Large accelerated filer ☐Accelerated filer ☐Emerging growth company☐Non-accelerated filer ☒Smaller reporting company ☒ Table of Contents 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 revisedfinancial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐ Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control overfinancial reporting under Section 404(b) of the Sarbanes-Oxley Act by the registered public accounting firm that prepared or issued its audit report. ☐ Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒ As of June 30, 2021, the aggregate market value of the voting stock held by non-affiliates of the registrant, computed by reference to the last sale price of suchstock as of such date on the NYSE American, was approximately $23,677,038. This figure excludes an aggregate of 9,276,143 shares of common stock held by affiliates,including officers and directors, as of June 30, 2021. Exclusion of shares held by any of these persons should not be construed to indicate that such person possessesthe power, direct or indirect, to direct or cause the direction of the management or policies of the registrant, or that such person is controlled by or under commoncontrol with the registrant. As of March 24, 2022, there were 51,418,364 shares of the registrant's common stock outstanding. DOCUMENTS INCORPORATED BY REFERENCE Proxy Statement for the 2022 Annual Meeting of Stockholders (Part III) to be filed within 120 days after the end of the Registrant’s year ended December 31, 2021. Table of Contents NOVABAY PHARMACEUTICALS, INC.ANNUAL REPORT ON FORM 10-KFOR THE FISCAL YEAR ENDED DECEMBER 31, 2021 TABLE OF CONTENTS PagePART I ITEM 1.BUSINESS1ITEM 1A.RISK FACTORS7ITEM 1B.UNRESOLVED STAFF COMMENTS17ITEM 2.PROPERTIES17ITEM 3.LEGAL PROCEEDINGS17ITEM 4.MINE SAFETY DISCLOSURES17 PART II ITEM 5.MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITYSECURITIES18ITEM 6.[RESERVED]18ITEM 7.MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS18ITEM 7A.QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK26ITEM 8.FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA27ITEM 9.CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE67ITEM 9A.CONTROLS AND PROCEDURES67ITEM 9B.OTHER INFORMATION67ITEM 9C.DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS67 PART III ITEM 10.DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE68ITEM 11.EXECUTIVE COMPENSATION68ITEM 12.SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS68ITEM 13.CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE68ITEM 14.PRINCIPAL ACCOUNTANT FEES AND SERVICES68 PART IV ITEM 15.EXHIBITS, FINANCIAL STATEMENT SCHEDULES69 Unless the context requires otherwise, all references in this report to “we,” “our,” “us,” the “Company” and “NovaBay” refer to NovaBay Pharmaceuticals, Inc., aDelaware corporation, and its wholly-owned subsidiary, DERMAdoctor, LLC, a Missouri limited liability company. The Company owns over 45 live trademark registrations, which include NovaBay®, NovaBay Pharma®, Avenova®, NeutroPhase®, CelleRx®, Aganocide®,AgaDerm®, Neutrox®, Going Beyond Antibiotics®, Kakadu C®, AIN’T Misbehavin’® and KP Duty®. All other trademarks and trade names are the property of theirrespective owners. Table of Contents SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS This report contains forward-looking statements that are based on our management's beliefs and assumptions and on information currently available to ourmanagement. These forward-looking statements include, but are not limited to, statements regarding our product candidates, the integration of DERMAdoctor,market opportunities, competitors, strategies, anticipated trends and challenges in our business and the markets in which we operate, and anticipated expenses andcapital requirements. In some cases, you can identify forward-looking statements by terms such as “anticipates,” “believes,” “could,” “estimates,” “expects,”“intends,” “may,” “plans,” “potential,” “predicts,” “projects,” “should,” “will,” “would” and similar expressions intended to identify forward-looking statements.Forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to bematerially different from any future results, performances or achievements expressed or implied by the forward-looking statements. We discuss many of these risks ingreater detail under the heading “Risk Factors” in Item 1A of this report. Given these uncertainties, you should not place undue reliance on these forward-lookingstatements. You should read this report and the documents that we reference and have filed as exhibits thoroughly and with the understanding that forward-lookingstatements represent our management’s beliefs and assumptions only as of the date of this report and our actual future results may be materially different from what weexpect. Except as required by law, we assume no obligation to update these forward-looking statements publicly, even if new information becomes available in thefuture. PART IITEM 1.BUSINESS NovaBay Pharmaceuticals, Inc. develops and sells scientifically-created and clinically-proven eyecare and skincare products. Our leading product, Avenova® Antimicrobial Lid and Lash Solution (“Avenova Spray”), is proven in laboratory testing to have broad antimicrobial properties as itremoves foreign material including microorganisms and debris from the skin around the eye, including the eyelid. Avenova Spray is formulated with our proprietary,stable and pure form of hypochlorous acid and is cleared by the U.S. Food and Drug Administration (“FDA”) for sale in the United States. Other eyecare productsoffered under the Avenova eyecare brand include Novawipes by Avenova, Avenova Lubricant Eye Drops, Avenova Moist Heating Eye Compress, and the i-Chek. On November 5, 2021 (the “Acquisition Closing”), we significantly expanded our business by acquiring DERMAdoctor, LLC (“DERMAdoctor”) as our wholly-ownedsubsidiary (the “DERMAdoctor Acquisition”). DERMAdoctor offers over 30 dermatologist-developed products targeting common skin concerns, ranging from agingand blemishes to dry skin, perspiration and keratosis pilaris. DERMAdoctor branded products are marketed and sold through the DERMAdoctor website, well-knowntraditional and digital beauty retailers, and a network of international distributors. We expect to grow commercial sales of both Avenova and DERMAdoctor branded products through an expansion of domestic and international market penetration,with a particular focus on online channels, and the development of new product offerings under both brand names. Products Avenova Branded Optical Products Avenova Spray is a proprietary solution of hypochlorous acid that acts as an antimicrobial preservative in solution and has been shown to neutralize bacterial toxins inlaboratory tests. Because it is a gentle isotonic solution, it is well suited for daily use on the lids and lashes. Avenova Spray offers distinct advantages when comparedto alternative lid and lash regimens that contain soaps, bleach, and other impurities, as Avenova Spray removes unwanted microorganisms from the skin without the useof those harmful ingredients. Avenova Spray’s target market is the millions of Americans who suffer from minor irritation of the skin around the eye (commonly referredto as blepharitis) as well as anyone who suffers from dry eye (commonly described as a gritty sandy sensation while blinking). Avenova Spray is available both over-the-counter and as a prescription. We promote Avenova Spray direct to consumers and make it available through Avenova.com, other online channels and at selectbrick-and-mortar stores. In total, this was our leading sales channel by unit sales and net revenue in 2021. Avenova Spray is also available (1) at optometrists’ andophthalmologists’ offices, through our physician dispensed channel; (2) at national pharmacy chains across all 50 states; and (3) through our Partner PharmacyProgram, providing a consistent patient experience at contracted pricing. 1Table of Contents Because Avenova Spray can be purchased as both an over-the-counter and prescription product, it is available to a wide range of potential customers and addressablemarkets. Making it available over-the-counter capitalizes on a trend to sell pharmaceutical products directly to consumers in response to increased cost shifting toconsumers through high-deductible health plans. Our ongoing focus on promoting Avenova Spray online is reflected in increasing our spend on digital marketing andpublic relations initiatives. Avenova Spray is available on Avenova.com, Amazon.com, Walmart.com, and select other online channels. Avenova Spray also becameavailable at CVS store locations throughout the U.S. and on CVS.com beginning in the first quarter of 2021. Support from ophthalmologists and optometrists for Avenova Spray remains strong. The continual endorsement of medical professionals has created a “doctorrecommended” halo effect around our brand. This is a key differentiating factor in a crowded consumer space and is a result of our high quality and reliable efficacy. OurBuy-and-Sell physician dispensed channel is particularly important in this regard as it gives patients the opportunity to purchase Avenova Spray conveniently andimmediately upon recommendation in the doctor’s office. We believe this also creates repeat Avenova Spray customers who subsequently purchase Avenova Sprayand often other Avenova branded products through other channels. We also make Avenova Spray accessible nationwide in nearly all retail pharmacies across the United States through agreements with McKesson Corporation, CardinalHealth, and AmerisourceBergen Corporation. We continue to build our prescription business under a value pricing model. We maintain a rebate program for electronicpayment transactions and in the form of instant rebate cards. The rebate cards are intended to be used by patients who either do not have insurance coverage or whoseinsurance coverage does not cover Avenova Spray, thereby lowering the price for the patient at the pharmacy. We also have agreements directly with some preferred pharmacy networks through our Partner Pharmacy Program. These agreements provide greater control over thepatient experience at consistent contract pricing. Our Partner Pharmacy Program also ensures that proper insurance reimbursement occurs, and that our patients arereceiving the best possible price. In 2021, we added ImprimisRx, one of the nation’s leading ophthalmology-focused pharmaceutical businesses, to our Partner PharmacyProgram. There are many companies that sell lid and lash solutions, most of which, to the best of our knowledge, are surfactant (soap) based. Unlike these detergent-basedproducts that contain a mix of numerous chemicals, Avenova Spray consists solely of saline and 0.01% pure hypochlorous acid, a molecule naturally produced by thehuman body. Elegant in its simplicity, Avenova Spray works without the toxic impurities included in competitive offerings. While cheaper antibacterial soaps arecommonly used to reduce or prevent bacterial contamination on the skin, we do not view them as true competitors of Avenova Spray. DERMAdoctor Branded Dermatology Products Through the DERMAdoctor Acquisition, we added a comprehensive portfolio of dermatological solutions to address common skincare concerns including: keratosispilaris, rosacea and eczema, anti-aging, SPF, hyperhidrosis, excessive hair, and acne. These products are organized into several product families, including: (i) KakaduC®; (ii) KP Duty®; (iii) Total Non-scents Antiperspirant; (iv) Wrinkle Revenge®; (v) AIN’T Misbehavin’®; and (vi) Calm, Cool & Corrected®. DERMAdoctorcontinues to develop its pipeline of additional new products to address a variety of common skin conditions. DERMAdoctor products are offered within the large and steadily growing skincare category of the beauty industry. The skincare market is divided into facial care, handand body care and sun care. Within the skincare market, our DERMAdoctor products sell and compete across all major product categories with a wide variety ofproducts at various price points. Skincare products can also be subdivided into prestige and mass segments. Prestige products are characterized by higher price pointsand are typically sold in high-end specialty stores and department stores. Our marketing strategy for the DERMAdoctor brand is to focus on educating our target consumers about the unique attributes of such products, developing intimaterelationships with these consumers and capitalizing on our omni-channel distribution strategy to effectively reach and engage these consumers. Our target demographicfor both the Avenova and DERMAdoctor brands encompasses women between the ages of 25 to 65 who have a college education and an above average householdincome. We plan to continue DERMAdoctor’s efforts to engage in educational media such as appearances on television shows, information and research provided onour websites and physical presence at specialty retailers and department stores, primarily by Dr. Audrey Kunin, to further strengthen the DERMAdoctor brand imageand provide additional points of contact to educate consumers about such products. In addition, we also plan to leverage our consumer focused messaging and theproducts’ pharmaceutical pedigree to create brand awareness through digital marketing, influencers and third-party advertising companies. 2Table of Contents The skincare industry is highly competitive and subject to rapid changes due to consumer preferences and industry trends. Competition in the skincare industry isgenerally based on the introduction of new products, pricing of products, quality of products and packaging, brand awareness, perceived value and quality, innovation,in-store presence and visibility, promotional activities, advertising, editorials, e-commerce and mobile-commerce initiatives and other activities. These products competewith a high volume of new product introductions and existing products by diverse companies across several different distribution channels, including largemultinational consumer products companies that have many skincare brands under ownership, as well as standalone skincare brands, including those that may targetthe latest trends or specific distribution channels. We expect our DERMAdoctor products to encounter competition for consumer recognition and market share withproducts that have achieved significant national and international brand name recognition and consumer loyalty, such as those offered by global prestige beautycompanies like Avon Products, Inc., Elizabeth Arden, Inc., The Estée Lauder Companies, Inc., L’Oréal Group, Shiseido, Coty, Mary Kay, Inc. and The Proctor & GambleCompany, each of which have skincare brands. NeutroPhase and PhaseOne Branded Wound Care Products Consisting of higher concentrations of hypochlorous acid, NeutroPhase and PhaseOne are used for the cleansing and irrigation of intraoperative pocket lavage, beforesubcutaneous closure, stage I to IV pressure injuries, stasis ulcers, leg ulcers, diabetic foot ulcers, first-degree and second-degree burns, post-surgical wounds, graftedand donor sites, minor burns, superficial abrasions, wounds, and moistening absorbent wound dressings. Both NeutroPhase and PhaseOne compete in a crowded wound cleanser market with many older and lower-priced products with similar uses, such as Vashe andBetadine Surgical Scrub. However, we believe our NeutroPhase and PhaseOne solutions have distinct competitive advantages because they are made without the toxicchemicals found in other products. NeutroPhase and PhaseOne are gentle, non-irritating, and non-sensitizing to skin and new tissue. PhaseOne is distributed throughcommercial partners in the United States, and NeutroPhase is distributed in China by Pioneer Pharma (Hong Kong) Company Ltd. DERMAdoctor Acquisition and Financing Transaction On September 27, 2021, we entered into a Membership Unit Purchase Agreement (the “Acquisition Purchase Agreement”) by and among (i) us, (ii) DERMAdoctor, (iii)Dr. Jeffrey Kunin and Dr. Audrey Kunin (the “Founders”); (iv) Papillon Partners, Inc., a Missouri corporation that is owned by the Founders (“Papillon”); and (v)Midwest Growth Partners, L.L.L.P., an Iowa limited liability limited partnership (“MGP” and together with Papillon, the “Sellers”). Pursuant to the Acquisition PurchaseAgreement, we acquired 100% of the membership units of DERMAdoctor for an agreed upon purchase price of approximately $15.0 million (the “Purchase Price”). ThePurchase Price was comprised of a payment of approximately $12.0 million in cash to the Sellers at closing, which amount was (i) reduced to account for payments wemade to satisfy DERMAdoctor’s indebtedness and its transaction expenses as of closing, and (ii) increased by the DERMAdoctor cash and cash equivalents thatremained as of closing. The remaining amount of the Purchase Price is comprised of up to an aggregate of $3.0 million in earn out payments after the AcquisitionClosing, which are contingent upon the legacy DERMAdoctor business achieving predetermined contribution margin financial targets for the 2022 and the 2023calendar fiscal years (the “Earn Out Payments”). DERMAdoctor is now a wholly-owned subsidiary of NovaBay. On October 29, 2021, we entered into a Securities Purchase Agreement with various institutional investors (the “Purchasers”). Pursuant to the Securities PurchaseAgreement, we agreed to sell in a private placement offering (the “2021 Private Placement”) (i) an aggregate of 15,000 shares of our newly-created Series B Non-VotingConvertible Preferred Stock (the “Preferred Stock”) convertible into an aggregate of 37,500,000 shares of common stock, par value $0.01 (“Common Stock”), and (ii)warrants (the “2021 Warrants”) exercisable for 37,500,000 shares of Common Stock for an aggregate purchase price of $15.0 million. The 2021 Private Placement closed onNovember 2, 2021. We used a portion of the net proceeds from the 2021 Private Placement to partially fund the Purchase Price of the DERMAdoctor Acquisition, withthe remaining amount to be used for working capital purposes. Customers, Manufacturing and Suppliers Avenova branded products are available on Amazon.com, Walmart.com, CVS.com and Avenova.com. Online sales now account for the majority of Avenova Sprayrevenue. Internationally, Avenova Spray is available in Australia through a distribution partner. NeutroPhase and PhaseOne sales rely solely on distribution partners inChina and the U.S., respectively. Our DERMAdoctor products are sold in the United States and internationally (including in China, the Middle East, Europe, Canada, and Central and South America).Such products are distributed online, through wholesale distribution, in physical store locations and, particularly as relates to international sales, through marketing anddistribution agreements with local partners. For the Avenova Spray, we currently outsource manufacturing to two contract manufacturers with facilities located in the United States. For our DERMAdoctorproducts, we also use third-party contract manufacturers and suppliers to obtain substantially all raw materials, components, and packaging products and tomanufacture finished products relating to the DERMAdoctor brand. We utilize a total of seven different product fillers and numerous ingredient and packaging suppliersfrom which we source and contract the manufactures of our DERMAdoctor products. 3Table of Contents We believe that we have good relationships with our manufacturers and that our manufacturers have adequate manufacturing capacity to satisfy our demands for allproducts. Further, we believe that there are often alternative sources available in the event that one or more of these manufacturers are not available. However, theproducts manufactured by alternative manufacturers may not be identical to our current products as some of our product formulations, particularly as relates to ourDERMAdoctor products, are sometimes owned by that particular manufacturer. We continually review our manufacturing needs against the capacity of our contractmanufacturers to ensure that we are able to meet our production goals, reduce costs, and operate more efficiently. Intellectual Property We believe that our intellectual property has substantial value and has contributed significantly to the success of our business. We rely on patents, trademarks, tradesecrets and know-how to maintain our competitive position. We own over 40 live trademark registrations in the U.S., as well as trademark registrations and pendingapplications in many other countries internationally, with our primary trademarks including “Avenova®”, “CelleRx®”, “DERMAdoctor®”, “Kakadu C®”, “AIN’TMisbehavin’®”, “KP Duty®” and depictions of Dr. Audrey Kunin, some of which are held directly by NovaBay and others by our wholly-owned subsidiaryDERMAdoctor. We seek to protect our intellectual property rights by a variety of means, including obtaining patents, maintaining trade secrets and proprietary know-how andtechnological innovation to operate, without infringing on the proprietary rights of others and to prevent others from infringing on our proprietary rights. In order tomaintain our trade secrets, we rely on and use reasonable business activities to protect trade secrets, such as confidentiality/invention rights agreements withemployees, confidentiality agreements with manufacturers, proprietary expertise and product formulations, continuing innovation efforts and techniques, and otherknow-how to develop and maintain a competitive position. Research and Development For the years ended December 31, 2021 and 2020, we incurred total research and development expenses of approximately $44 thousand and $285 thousand, respectively.DERMAdoctor focuses a significant portion of its product development efforts on creating new products and improving existing products based on feedback andsuggestions from its consumers. Many of these suggestions are the catalyst for new DERMAdoctor product development, as well as product extensions.DERMAdoctor’s testing activities are performed by laboratories with ISO 17025 accreditation and FDA registration. The finished products DERMAdoctor develops,including packaging, must meet adequate quality control, and performance tests before they are marketed. Pursuant to our current business strategy, we plan tocontinue DERMAdoctor’s practice of creating new products and improving existing products in our core product lines by incorporating consumer feedback into ourproduct development efforts. Seasonality Avenova Branded Products Consistent with our peers in the United States pharmaceutical industry, prescriptions for Avenova Spray experience seasonality with the first quarter of each yeartypically being the lowest revenue quarter. This annual phenomenon is due to consumers facing the need to satisfy health insurance deductibles and changes tocopays as each new insurance year begins. Sales of Avenova Spray through non-prescription channels, along with the other Avenova branded products, experienceless seasonality with demands, consistent throughout the year. Dermatology/Skincare Products Our DERMAdoctor products are sold through wholesale distribution relationships with third parties such as Costco and others; therefore, we may receive periodic largeorders that result in large chunks of revenue that are received in irregular intervals during the year. Historically, sales of DERMAdoctor products that contain sunscreenand antiperspirants are higher in the summer seasons and sales of DERMAdoctor products that contain moisturizers are higher in the fall and winter months. Inaddition, DERMAdoctor products will typically experience an uptick in sales during the fourth quarter around the holidays of each country in which its products aresold, particularly in the United States and China. Government Regulation We are subject to extensive government regulation, principally by the FDA and state and local authorities in the United States and by comparable agencies in foreigncountries. Governmental authorities in the United States extensively regulate the pre-clinical and clinical testing, safety, efficacy, research, development, manufacturing,labeling, storage, record-keeping, advertising, promotion, import, export, marketing and distribution, among other things, of pharmaceutical, medical device and cosmeticproducts under various federal laws including the Federal Food, Drug and Cosmetic Act, the Public Health Service Act and under comparable laws by the states in theUnited States and in most foreign countries. We also hold our CE Mark and ISO 13485 certifications. To maintain these certifications, we undergo significant qualitycontrol audits with the relevant European authorities every year. 4Table of Contents FDA Approval/Clearance Requirements Some of our products that we market in the U.S. require FDA 510(k) clearance or approval through the OTC Drug Monograph process. We believe we have obtained therequired FDA clearance or approval for each of our current products, if necessary. The FDA decides whether a device line must undergo either the 510(k) clearance or premarket approval (“PMA”). PMA is the FDA process of scientific and regulatoryreview to evaluate the safety and effectiveness of Class III medical devices. Class III medical devices are those that support or sustain human life, are of substantialimportance in preventing impairment of human health, or which present a potential, unreasonable risk of illness or injury. The PMA process is based on statutorycriteria. These criteria include the level of risk that the agency perceives is associated with the device and a determination of whether the product is a type of device thatis similar to devices that are already legally marketed. Devices deemed to pose relatively less risk are placed in either Class I or II, which requires the manufacturer tosubmit a premarket notification ("PMN") requesting 510(k) clearance, unless an exemption applies. The PMN must demonstrate that the proposed device is“substantially equivalent” in intended use and in safety and effectiveness to a legally marketed predicate device, which is a pre-existing medical device to whichequivalence can be drawn, that is either in Class I, Class II, or is a Class III device that was in commercial distribution before May 28, 1976, for which the FDA has notyet called for submission of a PMA application. Class I devices are those for which safety and effectiveness can be assured by adherence to the FDA's general regulatory controls for medical devices, or the “GeneralControls”, which include compliance with the applicable portions of the FDA's quality system regulations, facility registration and product listing, reporting of adversemedical events, and appropriate, truthful and non-misleading labeling, advertising, and promotional materials. Some Class I devices also require premarket clearance bythe FDA through the 510(k) PMN process described below. Avenova Spray is classified as a Class I medical device. None of our products are Class II or Class IIImedical devices. All DERMAdoctor products are classified either as a cosmetic or an OTC monograph drug. Pervasive and Continuing FDA Regulation A host of regulatory requirements apply to our marketed devices, including the quality system regulation (which requires manufacturers to follow elaborate design,testing, control, documentation and other quality assurance procedures), the Medical Reporting Regulations (which require that manufacturers report to the FDAspecified types of adverse events involving their products), labeling regulations, and the FDA's general prohibition against promoting products for unapproved or "off-label" uses. Unanticipated changes in existing regulatory requirements or adoption of new current Good Manufacturing Practice (“cGMP”) requirements could hurt ourbusiness, financial condition, and results of operations. Health Care Fraud and Abuse In the United States, there are federal and state anti-kickback laws that generally prohibit the payment or receipt of kickbacks, bribes or other remuneration in exchangefor the referral of patients or other health-related business. For example, the federal Anti-Kickback Law (42 U.S.C. §1320a-7b(b)) prohibits anyone from, among otherthings, knowingly and willfully offering, paying, soliciting or receiving any bribe, kickback or other remuneration intended to induce the referral of patients for, or thepurchase, order or recommendation of, health care products and services reimbursed by a federal health care program (including Medicare and Medicaid). Recognizingthat the federal Anti-Kickback Law is broad and potentially applicable to many commonplace arrangements, the Office of Inspector General within the Department ofHealth and Human Services, or OIG, has issued regulations, known as the safe harbors, which identify permissible practices. If all of the requirements of an applicablesafe harbor are met, an arrangement will not be prosecuted under this law. Safe harbors exist for a number of arrangements relevant to our business, including, amongother things, payments to bona fide employees, certain discount arrangements, and certain payment arrangements involving GPOs. The failure of an arrangement to fitprecisely within one or more safe harbors does not necessarily mean that it is illegal. However, conduct that does not fully satisfy each requirement of an applicable safeharbor may result in increased scrutiny by government enforcement authorities, such as the OIG or the Department of Justice. Violations of this federal law can result insignificant penalties, including imprisonment, monetary fines and assessments, and exclusion from Medicare, Medicaid and other federal health care programs.Exclusion of a manufacturer would preclude any federal health care program from paying for its products. In addition to the federal Anti-Kickback Law, many states havetheir own anti-kickback laws. Often, these state laws closely follow the language of the federal law. Some state anti-kickback laws apply regardless of whether a federalhealth care program payment is involved. Federal and state anti-kickback laws may affect our sales, marketing and promotional activities, and relationships with healthcare providers or pharmacies by limiting the kinds of arrangements we may have with them. Federal and state false claims laws prohibit anyone from presenting, or causing to be presented, claims for payment to third-party payors that are false or fraudulent. Forexample, the federal False Claims Act (31 U.S.C. §3729 et seq.) imposes liability on any person or entity who, among other things, knowingly presents, or causes to bepresented, a false or fraudulent claim for payment by a federal health care program (including Medicaid and Medicare). Manufacturers, like us, can be held liable underfalse claims laws, even if they do not submit claims to the government, where they are found to have caused submission of false claims by, among other things,providing incorrect coding or billing advice about their products to customers that file claims, or by engaging in kickback arrangements with customers that file claims. Anumber of states also have false claims laws, and some of these laws may apply to claims for items or services reimbursed under Medicaid and/or commercial insurance.Sanctions under these federal and state laws may include civil monetary penalties, exclusion of a manufacturer's products from reimbursement under governmentprograms, and imprisonment. 5Table of Contents The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), created certain criminal statutes relating to health care, including health care fraud andfalse statements related to healthcare matters. The health care fraud statute prohibits, among others, knowingly and willfully executing a scheme to defraud any healthcare benefit program, including private payors. A violation of this statute is a felony and may result in fines, imprisonment, or exclusion from government sponsoredprograms. The false statements statute prohibits knowingly and willfully falsifying, concealing, or covering up a material fact or making any materially false, fictitious orfraudulent statement in connection with the delivery of, or payment for, health care benefits, items or services. A violation of this statute is a felony and may result infines or imprisonment. The federal Physician Payments Sunshine Act requires certain pharmaceutical and medical device manufacturers to monitor and report certain payments and othertransfers of value to physicians and other healthcare providers to the Centers for Medicare and Medicaid Services, or CMS, for disclosure to the public. Failure tosubmit required information may result in significant civil monetary penalties. In addition, there has been a recent trend of increased federal and state regulation ofpayments made to physicians for marketing, medical directorships, and other purposes. Some states mandate implementation of corporate compliance programs, alongwith the tracking and reporting of gifts, compensation and other remuneration to physicians, and some states limit or prohibit such gifts. Due to the breadth of some of these laws, it is possible that some of our current or future practices might be challenged under one or more of these laws. In addition,there can be no assurance that we would not be required to alter one or more of our practices to be in compliance with these laws. Evolving interpretations of currentlaws or the adoption of new federal or state laws or regulations could adversely affect many of the arrangements we have with customers and physicians. Our risk ofbeing found in violation of these laws is increased by the fact that some of these laws are open to a variety of interpretations. If our past or present operations are foundto be in violation of any of these laws, we could be subject to civil and criminal penalties, which could hurt our business, results of operations and financial condition. Third-Party Reimbursement Historically, many customers who were prescribed Avenova Spray relied on third-party payors, such as indemnity insurers and managed care plans, to cover andreimburse all or part of the cost. As a result, demand of Avenova Spray is partially dependent in part on the coverage and reimbursement policies of these payors.Private payors often follow the coverage and reimbursement policies of Medicare. We cannot assure you that private third-party payors will cover and reimburseAvenova Spray or any of our other products in whole or in part in the future or that payment rates will be adequate. Currently, none of our products are reimbursed byfederal healthcare programs, such as Medicare and Medicaid, and we do not anticipate they will be reimbursed by such programs in the future. Trade Regulation Our products, particularly our DERMAdoctor products, are also subject to regulation by the U.S. Consumer Product Safety Commission (“CPSC”) and the U.S. FederalTrade Commission (“FTC”). These laws and regulations principally relate to the ingredients, proper labeling, advertising, packaging, marketing, manufacture, safety,shipment and disposal of products. Foreign Regulation Many foreign countries in which we market or may market our products have regulatory bodies and restrictions similar to those of the FDA, CPSC and FTC.International sales are subject to foreign government regulation, the requirements of which vary substantially from country to country. The time required to obtainapproval by a foreign country may be longer or shorter than that required for FDA approval and the requirements may differ. In addition, we export DERMAdoctor products outside of the United States, and those products are subject to several United States statutes and regulations thatregulate exportation from the United States. These products do not require an export license so long as the product is not shipped or otherwise transferred to acomprehensively embargoed country or for a potentially prohibited purpose. DERMAdoctor has developed, maintains and follows internal controls to ensure that it isnot exporting its products to embargoed countries or for prohibited purposes. Other U.S. Regulation We must also comply with numerous federal, state, municipal and local laws relating to matters such as health and safety laws and regulations relating to, among othermatters, safe working conditions, product stewardship and environmental protection, including those relating to the handling, storage, transportation, treatment anddisposal of hazardous substances and waste materials, and the registration and evaluation of chemicals. We maintain policies and procedures to monitor and controlenvironmental, health and safety risks, and to monitor compliance with applicable environmental, health and safety requirements. 6Table of Contents Human Resources As of December 31, 2021, on a consolidated basis, we had a total of 31 employees, 29 of whom were full-time employees and 2 were part-time employees. None of ouremployees are represented by labor unions or covered by collective bargaining agreements. We comply with the latest employment best practices and consider ourrelationship with our employees to be good. Facilities Our principal executive office is located in Emeryville, California. We are party to an Office Lease (the “Lease”), dated August 24, 2016, as subsequently amended onJanuary 24, 2022, pursuant to which we lease approximately 7,675 rentable square feet of real property located on the eleventh floor (Suite 1150) at 2000 Powell Street,Emeryville, California 94608 from KBSIII Towers at Emeryville, LLC (the “Landlord”), for our principal executive offices. The expiration date of the Lease is July 31, 2027,unless earlier terminated pursuant to the provisions of the Lease. We believe that our office and administration facilities are suitable and adequate for our currentoperations and its current purpose, but we may require additional space and facilities as our business expands. Our wholly-owned subsidiary, DERMAdoctor, is party to a lease with Green Bay Packaging Inc., as landlord, and DERMAdoctor, as tenant, dated August 27, 2019 (the“Subsidiary Lease”), for 19,136 square feet of space located at 4346 Belgium Boulevard, Building 2, Riverside, Missouri, which DERMAdoctor utilizes for lightmanufacturing, storage, distribution of products and administrative functions. The lease commenced on October 1, 2019 and expires on December 31, 2024. Available Information Our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports filed or furnished pursuant toSections 13(a) and 15(d) of the Securities Exchange Act of 1934, as amended, are available free of charge on our corporate website, located at www.novabay.com, assoon as reasonably practicable after we electronically file such material with, or furnish it to, the Securities and Exchange Commission (the “SEC”). Our website is notpart of this annual report on Form 10-K. The SEC also maintains an Internet site that contains reports, proxy, information statements and other information regardingissuers at http://www.sec.gov. ITEM 1A.RISK FACTORS Our business is subject to a number of risks, the most important of which are discussed below. You should consider carefully the following risks in addition to theother information contained in this report and our other filings with the SEC before deciding to buy, sell or hold our Common Stock. If any of the following risksactually occur, our business, financial condition, results of operations and the market price of our Common Stock could be materially adversely affected, the value ofour Common Stock could decline and you may lose all or part of your investment. The risks and uncertainties described below are not the only ones facing ourCompany, but those that we consider to be material. Additional risks not presently known to us or that we currently believe are immaterial may also significantlyimpair our business operations. Past financial performance may not be a reliable indicator of future performance, and historical trends should not be used toanticipate results or trends in future periods. Please also read carefully the section below entitled “Special Note Regarding Forward-Looking Statements.” Risks Relating to Our Business Our business may be adversely affected by the continuing coronavirus outbreak. In March 2020, the World Health Organization declared COVID-19 a global pandemic and the United States declared a national emergency with respect toCOVID-19. In response to the COVID-19 outbreak, “shelter in place” orders and other public health measures were implemented across much of the United States,including the San Francisco Bay area counties where our headquarters is located. Due to “shelter in place” orders and other public health guidance measures, weimplemented a temporary work-from-home policy for all staff members that has since been lifted. Overall, the impact of COVID-19 to date has been minimal on the salesof Avenova Spray as an increase in online sales has made up for the decrease in revenue from other channels. In addition, we recently acquired DERMAdoctor andhave not yet fully integrated its business, operations or products with ours and the impact of COVID-19 on this integration and/or the future sales of our DERMAdoctorproducts is uncertain given the shift in sales channels away from brick-and-mortar retail stores. Although we and DERMAdoctor have not experienced a materialdisruption in our supply chain to date due to COVID-19, as the pandemic continues, the availability of raw materials, goods and/or services from our suppliers could bedisrupted and/or not provided in a timely manner or in the quantities that we require in order to operate our business in the ordinary course, which could materially andadversely affect our product sales, customer service levels and our overall business. In addition, any increases in the costs of goods and services for our business thatcould result from such disruptions in our supply chain or as a result of inflation in the overall costs of goods and services may adversely affect our profit margins if weare unable to pass along any higher costs in the form of price increases or otherwise achieve cost efficiencies in our operations. 7Table of Contents The COVID-19 global pandemic continues to evolve. The extent to which the outbreak and the different variants may continue to affect our business, financial conditionand results of operations will depend on future developments, which are uncertain and cannot be predicted at this time, such as the duration of the outbreak, evolutionof COVID-19 into novel strands of the disease, travel restrictions and actions to contain the outbreak or treat its impact, such as social distancing, quarantines or lock-downs in the United States and elsewhere, business closures or business disruptions and the effectiveness of actions taken in the United States and elsewhere tocontain and treat the disease through vaccination. Future developments in these and other areas present material uncertainty and risk with respect to our business,financial condition, and results of operations. Since the success of our business, including DERMAdoctor’s business, relies upon the strength of the United States andother retail economies, any sustained economic downturn in the United States or the other countries in which we conduct business could materially and adversely affectour business, operating results and financial condition. Our future success is largely dependent on the successful commercialization of our products, particularly Avenova Spray, and of the newly acquired DERMAdoctorproducts. If we are unable to establish and maintain adequate sales, marketing and distribution capabilities or enter into or maintain agreements with third parties to do so, we maybe unable to successfully commercialize our products, including the products that we recently acquired as a result of the DERMAdoctor Acquisition. While we believewe are creating an efficient commercial organization, we may not be able to correctly judge the size and experience of the sales and marketing force and the scale ofdistribution necessary to be successful. Establishing and maintaining sales, marketing, and distribution capabilities are expensive and time-consuming. Such expensesmay be disproportionate compared to the revenues we may be able to generate on sales of Avenova branded, and/or our DERMAdoctor branded products, which couldcause our commercialization efforts to be unprofitable or less profitable than expected. Acceptance and use of Avenova and/or DERMAdoctor branded products by physicians, retail partners and other customers may depend on a number of factorsincluding: (i) perceptions by members of the healthcare community, including physicians, about the safety and effectiveness of our products; (ii) published studiesdemonstrating the cost-effectiveness of our products relative to competing products; (iii) availability of reimbursement for our products from government or commercialpayers as relates to Avenova Spray; and (iv) effectiveness of marketing and distribution efforts by us and our licensees and distributors, if any. The failure of any of ourproducts to find market acceptance would harm our business and could require us to seek additional financing to fund our operations. We face substantial competition in the eyecare and the skincare markets in which we operate. Avenova Spray faces intense competition in the eyecare market, which is focused on cost-effectiveness, price, service, product effectiveness and quality, patientconvenience and technological innovation. There is substantial competition in the eyecare market from companies of all sizes in the United States and abroad, including,among others, large companies such as Allergan plc and Shire plc, and against products such as Restasis, Xiidra, eye wipes, baby shampoo and soap. There are alsoover-the-counter products that contain hypochlorous acid that compete with Avenova Spray. For our newly acquired DERMAdoctor products that operate in the skincare and beauty industries, we also face vigorous competition from companies globally,including large multinational consumer products companies that have many skincare brands under ownership and standalone skincare brands, including those that maytarget the latest trends or specific distribution channels. The skincare and beauty industries are highly competitive and subject to rapid changes due to consumerpreferences and industry trends. Competition in the skincare industry is generally based on the introduction of new products, pricing of products, quality of productsand packaging, brand awareness, perceived value and quality, innovation, in-store presence and visibility, promotional activities, advertising, editorials, e-commerce andmobile-commerce initiatives and other activities. We must compete with a high volume of new product introductions and existing products by diverse companies acrossseveral different distribution channels. Our skincare and other beauty products face, and will continue to face, competition for consumer recognition and market sharewith products that have achieved significant national and international brand name recognition and consumer loyalty, such as those offered by global prestige beautycompanies like Avon Products, Inc., Elizabeth Arden, Inc., The Estée Lauder Companies, Inc., Johnson & Johnson, Inc., L’Oréal Group, Shiseido, Coty, Mary Kay, Inc.and The Proctor & Gamble Company, each of which have launched skincare brands. In addition, we compete with brands including Dr. Dennis Gross, Kate Somerville,Murad, Perricone M.D., Dr. Brandt, Clarins, Clinique, Dermalogica, Exuviance, La Roche-Posay and Vichy. We also compete with numerous other companies that marketskincare products. Competition may increase further as existing competitors enhance their offerings or additional companies enter our markets or modify their existingproducts to compete directly with our products. These companies that we compete against in the eyecare, skincare and beauty industries may have substantially greater financial, technical and marketing resources,longer operating histories, greater brand recognition and larger customer bases than we do and may be able to respond more effectively to changing business andeconomic conditions than we can. If our competitors respond more quickly to new or emerging technologies and changes in customer requirements, our products maybe rendered obsolete or non-competitive. In addition, if our competitors develop more effective or affordable products, or achieve earlier intellectual property protectionor product commercialization than we do, our operating results will materially suffer. Competition may increase further as existing competitors enhance their offerings oradditional companies enter our markets or modify their existing products to compete directly with our products. We may not be able to sustain growth as competitivepressures, including pricing pressure from competitors, increase. Our ability to compete depends on the continued strength of our brand and products, the success ofour marketing, innovation and execution strategies, the continued diversity of our product offerings, the successful management of new product introductions andinnovations, strong operational execution, including in order fulfillment, and our success in entering new markets and expanding our business in existing geographies. Ifwe are unable to continue to compete effectively, it could have a material adverse effect on our business, results of operations and financial condition. 8Table of Contents We are dependent on third parties to supply raw materials used in our products and to manufacture our products. Any interruption or failure by these suppliers orother disruptions to our supply chain may materially adversely affect our business, financial condition, results of operations and cash flows. Our ability to make, move, and sell our products is critical to our success. Historically, we have predominately relied on a single product, Avenova Spray, for our primaryrevenue stream, which is comprised of our proprietary, stable and pure form of hypochlorous acid. In acquiring DERMAdoctor, we are greatly expanding our productofferings and operations, as DERMAdoctor has an extensive global platform, currently selling over 30 products in various countries, with over 40 commercialrelationships that supply its products from around the globe. While product sales in the United States have historically driven DERMAdoctor’s revenue, it hasstrategically sought international opportunities for the sale and distribution of its products. DERMAdoctor’s products are currently offered internationally in China, theMiddle East, Europe, Canada, and Central and South America. With this larger operational business and range of product offerings around the globe, comes additionalopportunity for us as well as corresponding risk in certain areas. A key risk area, which is emphasized further by the current pandemic environment and conflict betweenRussia and Ukraine, is that of supply chain risk. Our subsidiary, DERMAdoctor, also uses third party contract manufacturers and suppliers, some internationally, toobtain substantially all raw materials, components, and packaging products and to manufacture finished products. Damage or disruption to our supply chain, including third-party manufacturing, assembly or transportation and distribution capabilities, due to weather, including anypotential effects of climate change, natural disaster, fire or explosion, terrorism, pandemics (such as the COVID-19 pandemic), strikes, government action, war (such asthe conflict between Russia and Ukraine) or other reasons beyond our control or the control of our suppliers and business partners, could impair our ability tomanufacture or sell our products. Failure to take adequate steps to mitigate the likelihood or potential impact of such events, or to effectively manage such events if theyoccur, particularly when a product is sourced from a single supplier or location, could adversely affect our business or financial results. Further, we rely on third parties to supply raw materials, components, and packaging products, to manufacture finished products, and distribute our products. Anyinterruption or failure by our suppliers, distributors and other partners to meet their obligations on schedule or in accordance with our expectations, misappropriation ofour proprietary information, including trade secrets and know-how, or any termination by these third parties of their arrangements with us, which, in each case, could bethe result of one or many factors outside of our control, could delay or prevent the manufacture or commercialization of our products, disrupt our operations or causereputational harm to our company, particularly with wholesale customers, any or all of which could have a material adverse effect on our business, financial condition,results of operations and cash flows. In particular, a large portion of DERMAdoctor’s revenue is from wholesale customers, which in accordance with standard industry practice, do not typically operateunder written contracts or advance commitments for products. Such wholesale customers generally place large orders shortly before such products are needed. Due tocost and product shelf life, the DERMAdoctor business does not keep a large inventory on hand, however, it must have the ability to quickly provide products towholesale customers upon demand. Therefore, our DERMAdoctor business relies on its third-party suppliers to be able to quickly respond to DERMAdoctor productneeds, and if such supply chain is interrupted, could cause a material adverse effect on our business, reputation with wholesale customers and financial condition. DERMAdoctor’s operating results are dependent on sales to a few significant retail partners and the loss of, or substantial decline in, sales to one of these retailpartners could have a material adverse effect on our expected future revenues and profitability. Retail partners that purchase our DERMAdoctor products account for a substantial percentage of net sales revenue, and the loss of all or a portion of the sales to anyone of these customers could have a material adverse effect on the results of operations generated by the DERMAdoctor business. In particular, prior to theDERMAdoctor Acquisition, sales to retail partners accounted for approximately 50.8% of DERMAdoctor’s gross sales revenue in fiscal 2020. We expect that a smallgroup of retail partners will continue to account for a significant portion of DERMAdoctor’s gross sales revenue for the foreseeable future. Although DERMAdoctordeveloped long-standing relationships with its major retail partners, it generally does not, consistent with industry norms, have written agreements or advancecommitments that require these retail partners to buy from DERMAdoctor or to purchase a minimum amount of DERMAdoctor products. A substantial decrease in salesto any of DERMAdoctor’s major retail partners could have a material adverse effect on the DERMAdoctor business and our financial condition and operating results. 9Table of Contents Potential disruptions to our distribution facility could cause interruptions or delays in our business and adversely affect our net sales and results of operations. Our ability to meet the needs of our consumers and retail customers depends on the proper operation of our Riverside, Missouri distribution facility, where a significantportion of our inventory that is not in transit is housed. Although we currently insure our inventory, our insurance coverage may not be sufficient to cover the fullextent of any loss or damage to our inventory or distribution facility, and any loss, damage or disruption of this facility, or loss or damage of the inventory and contentsstored there, could materially and adversely affect our business, financial condition and results of operations. A natural disaster or other catastrophic event, such as afire, flood, severe storm, break-in, terrorist attack or other comparable event could cause loss of inventory and interruptions or delays in our business and could renderus unable to accept or fulfill customer orders in a timely manner, or at all. Our warehouse is located in an area that has historically been subject to severe storms andtornados. This increases our susceptibility to the risk that severe weather conditions could harm the operations of our distribution facility. In the event that a storm,tornado, fire, natural disaster or other catastrophic event were to destroy a significant part of the facility or interrupt our operations for an extended period of time, ournet sales could be reduced, and our results of operations could be harmed. Significant disruptions of information technology systems or breaches of information security could adversely affect our businesses. We rely upon information technology systems to operate our businesses. In the ordinary course of business, we collect, store and transmit large amounts ofconfidential information (including, but not limited to, personal information and intellectual property), and we deploy and operate an array of technical and proceduralcontrols to maintain the confidentiality and integrity of such confidential information. We also have outsourced aspects of our operations to third parties, includingsignificant elements of our information technology infrastructure and, as a result, we are managing independent vendor relationships with third parties who may orcould have access to our confidential information. The size and complexity of our information technology and information security systems, and those of our third-partyvendors with whom we contract, make such systems potentially vulnerable to service interruptions or to security breaches from inadvertent or intentional actions by ouremployees or vendors, or from attacks by malicious third parties. Such attacks are of ever-increasing levels of sophistication and are made by groups and individualswith a wide range of motives and expertise, including organized criminal groups, “hacktivists,” nation states and others. While we have invested in the protection ofdata and information technology, there can be no assurance that our efforts will prevent service interruptions or security breaches. Any such interruption or breach ofour systems could adversely affect our business operations and/or result in the loss of critical or sensitive confidential information or intellectual property, and couldresult in financial, legal, business and reputational harm to us. Adverse U.S. or international economic conditions could negatively affect our business, financial condition and results of operations. We face risks associated with U.S. and international economic conditions and are subject to events beyond our control including war, public health crises (such as theCOVID-19 pandemic), trade disputes, economic sanctions, and their collateral impacts. In particular, consumer spending on skincare and beauty products, as well aseyecare products, is influenced by general economic conditions and the availability of discretionary income. Adverse U.S. or international economic conditions orperiods of inflation or high energy prices may contribute to higher unemployment levels, decreased consumer spending, reduced credit availability and decliningconsumer confidence and demand, each of which poses a risk to our business. A decrease in consumer spending or in retailer and consumer confidence and demand forour products could have a significant negative impact on our net sales and profitability, including our operating margins and return on invested capital. These economicconditions could cause some of our retail customers or suppliers to experience cash flow or credit problems and impair their financial condition, which could disrupt ourbusiness and adversely affect product orders, payment patterns and default rates and increase our bad debt expense. In addition, deterioration in global financialmarkets could make future financing difficult or more expensive, which could have a material adverse effect on our ability to finance the acquisition of inventory for saleto our customers. In February 2022, armed conflict escalated between Russia and Ukraine. The sanctions imposed by the U.S. and other countries against Russia,following Russia’s invasion of Ukraine, to date include restrictions on selling or importing goods, services, or technology in or from affected regions and travel bans andasset freezes impacting connected individuals and political, military, business and financial organizations in Russia. The U.S. and other countries could impose widersanctions and take other actions should the conflict further escalate. It is not possible to predict the broader consequences of this conflict, which could include furthersanctions, embargoes, regional instability, geopolitical shifts and adverse effects on macroeconomic conditions, currency exchange rates and financial markets, all ofwhich could impact our business, financial condition and results of operations. Risks Related to the DERMAdoctor Acquisition and DERMAdoctor’s Products Uncertainty about the DERMAdoctor Acquisition may adversely affect the relationships that we and DERMAdoctor have with our respective customers, serviceproviders and employees. Parties with whom we or DERMAdoctor do business may experience uncertainty associated with the recent DERMAdoctor Acquisition, including with respect tocurrent or future business relationships with us or DERMAdoctor. These business relationships may be subject to disruption as end customers, suppliers,manufacturers, distributors and others may attempt to (i) negotiate changes in existing business relationships, (ii) delay, defer or cease supplying or manufacturing for,or purchasing products from, us or DERMAdoctor or (iii) consider entering into business relationships with parties other than us or DERMAdoctor, including ourcompetitors or those of DERMAdoctor. These disruptions, if they occur, could have a material adverse effect on the combined business and upon our operating resultsand financial condition. Uncertainties associated with the DERMAdoctor Acquisition may cause a loss of management personnel and other key employees that could adversely affect ourfuture business, operations and financial results. With the DERMAdoctor Acquisition having been completed, the ongoing integration of the combined businesses could disrupt our business. We and DERMAdoctorare both dependent on the experience and industry knowledge of our respective senior management and other key employees to develop new products and execute ourrespective business plans. Our success will depend in part upon our ability to retain both key management personnel and key employees of DERMAdoctor. Althoughwe entered into employment agreements with Dr. Audrey Kunin and Dr. Jeffrey Kunin, who are also incentivized to team with us over the next two years to achievepotential Earn Out Payments pursuant to the terms of the Purchase Agreement, and all of the other employees of DERMAdoctor continued as employees after theAcquisition Closing, there is no guarantee that current and prospective future employees we hire for the DERMAdoctor business will continue with us, which may havean adverse effect on our ability to effectively integrate DERMAdoctor into our business or for us to attract or retain key management and other key personnel. All ofDERMAdoctor’s existing and new products in development were conceived by its product design team led by Dr. Audrey Kunin, who is a board-certified dermatologist.Dr. Kunin is continuing post-transaction in her leadership role of new product development, and the loss of Dr. Kunin’s service in this capacity could have a materialand adverse effect on our ability to effectively develop and launch new products until such position could be filled by us. 10Table of Contents The DERMAdoctor Acquisition involves risks associated with acquisitions and integrating acquired businesses and the intended benefits of the DERMAdoctorAcquisition may not be realized by us. The DERMAdoctor Acquisition, which was completed on November 5, 2021, involves risks that are associated with acquisitions and integrating acquired businessesand their operations with existing operations, including: ●our senior management’s attention may be diverted from the management of daily operations to the integration of DERMAdoctor’s products and business thatwe have acquired; ●the challenges, including delays or any other unanticipated changed circumstances, and costs involved in integrating and/or developing DERMAdoctorproducts and other assets that we have acquired; ●failure of the products and other assets that we acquired in the DERMAdoctor Acquisition to generate anticipated revenues, and/or otherwise perform inaccordance with our expectations; and ●failure to achieve the anticipated efficiencies and cost savings or realize other expected benefits of the DERMAdoctor Acquisition within the expected timeframe or at all. If these risks or other unexpected costs and liabilities were to materialize, any desired benefits of the DERMAdoctor Acquisition may not be fully realized, if at all, andour future financial performance and results of operations could be negatively impacted. In addition, if the combined company does not perform as we or the marketexpects, then this could have an adverse effect on the price of our Common Stock. Actual results may differ from any statements made by us concerning the anticipated impact of the DERMAdoctor Acquisition on the operating results of thecombined company, and these differences could be material. Although we believe that we have a reasonable basis for such forward-looking statements, these statements are based on our projections of future events that aresubject to risks, uncertainties and other factors that may cause the combined company’s actual results, level of activity, performance or achievements expressed orimplied by these forward-looking statements to differ in a material way. Additional risks and uncertainties that could cause actual results to differ materially fromcurrently anticipated results include, but are not limited to, risks relating to our ability to successfully integrate DERMAdoctor; unanticipated increases in costs orexpenses; our ability to realize expected cost synergies; our ability to reach profitability as a result of the DERMAdoctor Acquisition, and the other risks identifiedherein and the documents included herein that we urge you to read. Our actual financial condition and results of operations as a result of the DERMAdoctorAcquisition may not be consistent with, or evident from, the statements for the periods covered by this report. Consequently, actual results or developments anticipatedby us may not be realized or, even if substantially realized, may not have the expected consequences to, or effects on, us. In particular, while the DERMAdoctorAcquisition is expected to be accretive to NovaBay’s profitability in the first year after close, there can be no assurance with respect to the timing and scope of theaccretive effect or whether it will be accretive at all. Any failure to meet expectations regarding the prospects for the combined company could have a material adverseeffect on our business, financial condition, results of operation, as well as the trading price and/or volume of our Common Stock. Charges to earnings resulting from the application of the purchase method of accounting following the Closing of the DERMAdoctor Acquisition may adverselyaffect the market value of our Common Stock. The DERMAdoctor Acquisition will be accounted for using the purchase method of accounting, which will result in charges to earnings that could have an adverseimpact on the market value of our Common Stock. Under the purchase method of accounting, the total estimated Purchase Price will be allocated to DERMAdoctor’s proforma net tangible assets and identifiable intangible assets based on their respective fair values as of the Acquisition Closing. Any excess of the Purchase Price overthose fair values will be recorded as goodwill. As a result of the consolidation of DERMAdoctor with our Company, we will incur additional amortization expense basedon the identifiable amortizable intangible assets acquired pursuant to the Purchase Agreement and their relative useful lives. Additionally, to the extent the value ofgoodwill or identifiable intangible assets or other long-lived assets may become impaired, we may be required to incur charges relating to the impairment. Theseamortization and potential impairment charges could have a material impact on the combined company’s results of operations. Risk Related to Government Regulation We expect continuous revenue from sales of Avenova Spray, which is classified as a cleared medical device by the FDA, but we cannot guarantee that the FDA willcontinue to allow us to market and sell Avenova Spray as a cleared medical device, which marketing inability would halt our sales and marketing of AvenovaSpray and cause us to lose revenue and materially and adversely affect our results of operations and the value of our business. Our ability to continue to commercialize Avenova Spray and generate revenue from Avenova Spray depends upon, among other things: ●the FDA allowing us to continue marketing Avenova Spray as an FDA cleared medical device; ●acceptance in the medical community; ●the safety of Avenova Spray’s predicate devices; ●the number of patients who use Avenova Spray; ●coverage or reimbursement by third-party payors of Avenova Spray; ●our ability to successfully market Avenova Spray to both doctors and patients; and ●the amount and nature of competition from competing companies with similar products. 11Table of Contents Revenue from the Avenova brand will be subject to, among other things, regulatory and commercial and market uncertainties that may be outside of our control. Theclearance that we have received from the FDA for our Avenova Spray, NeutroPhase, PhaseOne and other products is subject to strict limitations on the indicated usesfor which the products may be marketed. The labeling, packaging, adverse event reporting, storage, advertising, promotion, and record keeping for all of our products,including those that are not subject to FDA clearance, are subject to extensive regulatory requirements. In addition, there can be no assurance that government regulations applicable to our products will not change and thereby prevent the marketing of some or all of ourproducts for a period of time or permanently. The FDA’s policies may change and additional government regulations may be enacted that could modify, prevent or delayregulatory approval of our products. We cannot predict the likelihood, nature or extent of adverse government regulation that may arise from future legislation oradministrative action, either in the U.S. or in other countries. We cannot guarantee that Avenova Spray, our other cleared products, or products that may be approved orcleared for marketing in the future, will not be materially adversely impacted by a change in industry standards or regulations. If changes to industry standards,practices or regulations applicable to Avenova Spray or our other cleared products that we may market and sell in the future cause a delay in continuedcommercialization or if we cannot make a change to satisfy the industry standards, practices or regulations, we may not be able to meet market demand which may havea materially adverse effect on our business, financial condition, results of operations, and prospects. Additionally, the FDA may request that we submit another 510(k) premarket submission that compares to another predicate device. If we are unable to find an adequatepredicate device that is substantially equivalent to Avenova Spray for the treatment claims that we use to sell and market Avenova Spray, we may not be able to obtainthe necessary FDA clearance to continue to market and sell Avenova Spray without performing comprehensive clinical trials. In such event, we would need to seekpremarket approval from the FDA for the applicable product before we could continue to sell and market Avenova Spray in the United States, which would besignificantly more time consuming, expensive, and uncertain. Our commercialized products such as Avenova and DERMAdoctor branded products are not approved by the FDA as a drug, and we rely solely on the 510(k)clearance for Avenova Spray and certain of our other products as a medical device. Our business and future growth depend on the development, use and sale of products that are subject to FDA regulation, clearance and approval. Under the U.S.Federal Food, Drug, and Cosmetic Act and other laws, we are prohibited from promoting our products for off-label uses. This means that we may not make claims aboutthe safety or effectiveness of our products and may not proactively discuss or provide information on the use of our products, except as allowed by the FDA. Ourproducts, particularly our DERMAdoctor products, are also subject to regulation by the CPSC and the FTC. These laws and regulations principally relate to theingredients, proper labeling, advertising, packaging, marketing, manufacture, safety, shipment and disposal of such products. As Avenova Spray is a medical device, wemay only make very limited claims that pertain to its cleared intended use. Without claims of efficacy, market acceptance of our products may be slow. The 510(k) statusof Avenova Spray also affects our ability to obtain formal insurance reimbursement by payors and affects our ability to obtain Medicare coverage. The FDA does not currently require pre-market approval for products intended to be sold as non-prescription skincare products, so long as they are not marketed forthe treatment or prevention of a disease, or as affecting the structure or function of the human body. However, the FDA may in the future require pre-market approval,clearance, or registration/notification of skincare products. Moreover, such products could also be regulated as both drugs and skincare simultaneously, as thecategories are not mutually exclusive. If the FDA determines that any of our products intended to be sold as skincare should be classified and regulated as drugproducts, and we are unable to comply with applicable drug requirements, we may be unable to continue to market those products. Any inquiry into the regulatorystatus of our skincare products and any related interruption in the marketing and sale of these products could damage our reputation and image in the marketplace. There is significant risk that the FDA or other federal or state law enforcement authorities may determine that the nature and scope of our sales and marketing activitiesconstitutes the promotion of our products for non-FDA-approved uses in violation of applicable law and as the sale of unapproved drugs, which is prohibited underapplicable law. We face the risk that the FDA may take enforcement action against us for the way that we promote and sell our products. This risk may grow with theincreased visibility of Avenova Spray online, as well as the FDA’s increased focus on antimicrobial products in the wake of the COVID-19 pandemic. We also face therisk that the FDA or other regulatory authorities might pursue enforcement actions based on past activities that we have discontinued or changed, including salesactivities, arrangements with institutions and doctors, educational and training programs and other activities. Government investigations concerning the promotion of unapproved drug products, off-label uses and related issues are typically expensive, disruptive andburdensome and generate negative publicity. If our promotional activities are found to be in violation of applicable law or if we agree to a settlement in connection withan enforcement action, we would likely face significant fines and penalties and be required to substantially limit and change our sales and promotion activities. 12Table of Contents Developments after a product reaches the market may adversely affect sales of our products. Even after obtaining regulatory clearances, certain developments may decrease demand for our products, including the re-review of products that are already marketed;new scientific information and evolution of scientific theories; the recall or loss of regulatory clearance of products that are already marketed; changing governmentstandards or public expectations regarding safety, efficacy, or labeling changes; and greater scrutiny in advertising and promotion. If previously unknown side effectsare discovered or if there is an increase in negative publicity regarding known side effects of a product, it could significantly reduce demand for the product or requireus to take actions that could negatively affect sales, including removing the product from the market, restricting its distribution or applying for labeling changes. Inaddition, some health authorities appear to have become more cautious when examining new products and are re-reviewing select products that are already marketed,adding further to the uncertainties in the regulatory processes. There is also greater regulatory scrutiny, especially in the United States, on advertising (in particular, direct to consumer advertising), promotion and pricing ofpharmaceutical products. Certain regulatory changes or decisions could make it more difficult for us to sell our products. If we are not able to maintain regulatorycompliance, we may be subject to fines, suspension or withdrawal of regulatory clearance, product recalls, seizure of products, operating restrictions, injunctions,warning letters, criminal prosecution and other enforcement actions. Any of these events could prevent us from marketing our products and our business may not beable to continue past such concerns. If any of the above occurs to Avenova Spray, or our DERMAdoctor products, our business, results of operations, financialcondition and cash flows could be materially adversely affected. We do not have our own manufacturing capacity, and we rely on partnering arrangements or third-party manufacturers for the manufacture of our products andpotential products. The FDA and other governmental authorities require that all of our products, including those of DERMAdoctor, be manufactured in strict compliance with federalQuality Systems Regulations (“QSR”) and other applicable government regulations and corresponding foreign standards. We do not currently operate manufacturingfacilities for production of our products. As a result, we have partnered with third parties to manufacture our products or rely on contract manufacturers to supply, storeand distribute our products and help us meet legal requirements. As we have limited control over our commercial partners, any performance failure on their part(including failure to deliver compliant, quality components or finished goods on a timely basis or properly branded products) could affect the commercialization of ourproducts, producing additional losses and reducing or delaying product revenues. If any of our commercial partners or manufacturers have violated or is alleged to haveviolated any laws or regulations during the performance of their obligations to us, it is possible that we could suffer significant financial, operational and reputationalharm or other negative outcomes, including costly corrective actions, including suspending manufacturing operations, changing product formulations, suspendingsales of nonconforming products, or initiating product recalls, change product labelling, packaging or advertising or take other corrective action and possible legalconsequences. Our products require precise, high-quality manufacturing. The failure to achieve and maintain high manufacturing standards could result in patient injury or death,product recalls or withdrawals, delays or failures in product testing or delivery, cost overruns or other problems that could seriously harm our business. Contractmanufacturers and partners often encounter difficulties involving production yields, quality control and quality assurance, as well as shortages of qualified personnel.Accordingly, we and our third-party manufacturers are also subject to periodic unannounced inspections by the FDA to determine compliance with the FDA'srequirements, including primarily current cGMP, the QSR, medical device reporting regulations (where applicable for Avenova Spray), proper and compliant labeling andother applicable government regulations and corresponding foreign standards, including ISO 13485. The results of these inspections can include inspectional observations on FDA’s Form 483, untitled letters, warning letters, or other forms of enforcement. If the FDAwere to conclude that we are not in compliance with applicable laws or regulations, or that any of our FDA-cleared products are ineffective, make additional therapeuticclaims that are not commensurate to the accepted labeling claims, or pose an unreasonable health risk, the FDA could take a number of regulatory actions, includingpreventing us from manufacturing any or all of our products or performing laboratory testing on human specimens, which could materially adversely affect our business.In addition, a prolonged interruption in the manufacturing of one or more of our products as a result of non-compliance could decrease our supply of products availablefor sale, which could reduce our net sales, gross profits and market share, as well as harm our overall business, prospects, financial condition and results of operations. Avenova Spray’s FDA-clearance and our other products that have been cleared by the FDA or products that we may obtain FDA-clearance in the future, if at all, aresubject to limitations on the intended uses for which the product may be marketed, which can reduce our potential to successfully commercialize the product andgenerate revenue from the product. If the FDA determines that our promotional materials, labeling, training or other marketing or educational activities constitutepromotion of an unapproved use, it could request that we cease or modify our training or promotional materials or subject us to regulatory enforcement actions. It is alsopossible that other federal, state or foreign enforcement authorities might take action if they consider our training or other promotional materials to constitute promotionof an unapproved use, which could result in significant fines or penalties under other statutory authorities. In addition, we may be required to conduct costly post-market testing and surveillance to monitor the safety or effectiveness of our products, and we must comply with medical device reporting requirements where applicablefor Avenova Spray, including the reporting of adverse events and malfunctions related to our products. Later discovery of previously unknown problems with ourproducts, including unanticipated adverse events or adverse events of unanticipated severity or frequency, manufacturing problems, or failure to comply withregulatory requirements such as QSR, may result in changes to labeling, restrictions on such products or manufacturing processes, withdrawal of the products from themarket, voluntary or mandatory recalls, a requirement to repair, replace or refund the cost of any medical device we manufacture or distribute, fines, suspension ofregulatory clearance to one or all of our products that may be cleared in the future, product seizures, injunctions or the imposition of civil or criminal penalties whichwould adversely affect our business, operating results and prospects. 13Table of Contents If we were to lose, or have restrictions imposed on, FDA clearances we may receive in the future, our business, operations, financial condition and results of operationswould likely be materially adversely impacted. Risks Relating to Our Liquidity We have a history of losses and we may never achieve or maintain sustained profitability. We have historically incurred net losses, and we may never achieve or maintain sustained profitability. In addition, at this time, we expect to incur expenses, includingmarketing and sales expenses, as we integrate the DERMAdoctor business and its products with ours and our continued efforts to increase sales of our Avenovabranded and newly acquired DERMAdoctor products, and our results of operations may fluctuate significantly. While we believe that increased revenues and operating expense efficiencies expected to be achieved as a result of the DERMAdoctor Acquisition will result in ourCompany achieving profitability, there is no assurance that this will occur. We will need to generate significant revenues to achieve and maintain profitability. Even withthe combined sales of Avenova branded and DERMAdoctor products, there is no assurance that we will be able to generate sufficient revenues to achieve or maintainprofitability. Our failure to achieve and subsequently maintain profitability could have a material adverse impact on the market price of our Common Stock. Risks Relating to Owning Our Common Stock The price of our Common Stock may fluctuate substantially, which may result in losses to our stockholders. The stock prices of many companies in our market segments have generally experienced wide fluctuations, which are often unrelated to the operating performance ofthose companies. The market price of our Common Stock is likely to be volatile and could fluctuate in response to, among other things: ●the announcement of new products by us or our competitors; ●the announcement of partnering arrangements by us or our competitors; ●quarterly variations in our or our competitors’ results of operations; ●changes in our earnings estimates, investors’ perceptions, recommendations by securities analysts or our failure to achieve analysts' earnings estimates; ●developments in our industry; ●the sale of a substantial number of shares of Common Stock by any large stockholder, especially within a short period of time; and ●general, economic and market conditions, including volatility in the financial markets, a decrease in consumer confidence and other factors unrelated to ouroperating performance or the operating performance of our competitors. Our ability to use our net operating loss carryforwards and certain other tax attributes may be limited. Under Section 382 of the Internal Revenue Code of 1986, as amended (the “Code”), if a corporation undergoes an “ownership change,” generally defined as a greaterthan 50% change (by value) in its equity ownership over a three-year period, the corporation’s ability to use its pre-change net operating loss (“NOL”) carryforwardsand other pre-change tax attributes (such as research tax credits) to offset its post-change income may be limited. Since our formation, we have raised capital throughthe issuance of capital stock on many occasions which, combined with the purchasing stockholders’ subsequent disposition of those shares, may have resulted in oneor more changes of control, as defined by Section 382 of the Code. We have not currently completed a study to assess whether any change of control has occurred, orwhether there have been multiple changes of control since our formation, due to the significant complexity and cost associated with such study. If we have experienceda change of control at any time since our formation, our NOL carryforwards and tax credits may not be available, or their utilization could be subject to an annuallimitation under Section 382. In addition, since we may need to raise additional funding to finance our operations, we may undergo further ownership changes in thefuture. If we earn net taxable income, our ability to use our pre-change NOL carryforwards to offset United States federal taxable income may be subject to limitations,which could potentially result in increased future tax liability to us. We have not paid dividends or repurchased stock in the past and do not expect to pay dividends or repurchase stock in the future, and any return on investmentmay be limited to the value of our stock. We have never paid cash dividends on, or repurchased shares of, our Common Stock and do not anticipate paying cash dividends or repurchasing shares of ourCommon Stock in the foreseeable future. In addition, we do not anticipate paying any dividends or repurchasing any shares of our Preferred Stock; however, if we paydividends on our shares of Common Stock, we are required to pay dividends on our Preferred Stock on an as converted basis. The payment of dividends on, or therepurchase of shares of, our Common Stock or Preferred Stock will depend on our earnings, financial condition and other business and economic factors affecting us atsuch time as our Board of Directors may consider relevant. If we do not pay dividends or repurchase stock, holders of our Common Stock will experience a return ontheir investment in our shares only if our stock price appreciates. 14Table of Contents If our stockholders' equity does not meet the minimum standards of the NYSE American or we are not able to comply with other continued listing requirements, wemay be subject to delisting procedures. Our Common Stock is currently listed on the NYSE American. If we are unable to comply with the continued listing requirements of the NYSE American, our CommonStock would be delisted from the NYSE American, which would limit investors’ ability to effect transactions in our Common Stock and subject us to additional tradingrestrictions. In order to maintain our listing, we must maintain certain share prices, financial and share distribution targets, including maintaining a minimum amount ofstockholders’ equity and a minimum number of public stockholders. In addition to these objective standards, NYSE American may delist the securities of any issuer forother reasons involving the judgment of NYSE American. Historically, our stockholders’ equity has at times been below the minimum requirements of Section 1003(a) ofthe Company Guide though we have met all such minimum requirements since October 13, 2020. In accordance with Section 1009(h) of the Company Guide, if we areagain determined to be below any of the continued listing standards in the future, the NYSE American will take the appropriate action which, depending on thecircumstances, may include initiating its compliance procedures or initiating delisting proceedings. If our Common Stock is delisted, this could, among other things,substantially impair our ability to raise additional funds; result in a loss of institutional investor interest and fewer financing opportunities for us; and/or result inpotential breaches of representations or covenants of our warrants, subscription agreements or other agreements pursuant to which we made representations orcovenants relating to our compliance with applicable listing requirements. Claims related to any such breaches, with or without merit, could result in costly litigation,significant liabilities and diversion of our management's time and attention and could have a material adverse effect on our financial condition, business and results ofoperations. We may issue additional shares of our Common Stock, other series or classes of preferred stock or other equity securities without your approval, which woulddilute your ownership interests and may depress the market price of your shares. We may issue additional shares of our Common Stock, other series or classes of preferred stock, in addition to the Preferred Stock and 2021 Warrants that we recentlyissued and sold in the 2021 Private Placement, or other equity securities of equal or senior rank in the future in connection with, among other things, future acquisitions,repayment of outstanding indebtedness or under our 2017 Omnibus Incentive Plan, without stockholder approval, in a number of circumstances. Our issuance of additional shares of our Common Stock, preferred stock or other equity securities of equal or senior rank could have the following effects: ●your proportionate ownership interest in NovaBay will decrease; ●the relative voting strength of each previously outstanding share of Common Stock may be diminished; or ●the market price of your shares of Common Stock may decline. We may require additional capital funding, the receipt of which may impair the value of our Common Stock and Preferred Stock. If we expand more rapidly than currently anticipated or if our working capital needs exceed our current expectations, we may need to raise additional capital throughpublic or private equity offerings or debt financings. Our future capital requirements depend on many factors including our research, development, sales and marketingactivities. We do not know whether additional financing will be available when needed or will be available on terms favorable to us. If we cannot raise needed funds onacceptable terms, we may not be able to develop or enhance our products, take advantage of future opportunities or respond to competitive pressures or unanticipatedrequirements. To the extent we raise additional capital by issuing equity securities, our stockholders may experience substantial dilution and the new equity securitiesmay have greater rights, preferences or privileges than our existing Common Stock. In addition, the new equity securities may be offered in the future at a price that isbelow the then in effect conversion price of the Preferred Stock, which would result in the lowering of the conversion price of the Preferred Stock and a greater numberof shares of Common Stock being issuable upon conversion of the Preferred Stock for no additional consideration, causing even greater dilution to our stockholders. 15Table of Contents Offers or availability for sale of a substantial number of shares of our Common Stock, including as a result of the conversion of the Preferred Stock and/or theexercise of the 2021 Warrants, may cause the price of our publicly traded securities to decline. Sales of a significant number of shares of our Common Stock in the public market could harm the market price of our Common Stock and make it more difficult for us toraise funds through future offerings of Common Stock. The Preferred Stock that we issued in the 2021 Private Placement provides for conversion into an aggregate of37,500,000 shares of Common Stock (based on the current conversion price). In addition, the Preferred Stock may become convertible into a greater number of shares ofCommon Stock that would be available for sale as a result of the full-ratchet anti-dilution price protection in the Certificate of Designation for the Preferred Stock, whichwould be triggered if we were to issue Common Stock in the future at an effective Common Stock purchase price that is less than the current conversion price for thePreferred Stock. In the 2021 Private Placement, we also issued 2021 Warrants that are exercisable into 37,500,000 shares of Common Stock. Assuming that all of theshares of Preferred Stock issued in the 2021 Private Placement are converted based on the conversion price as of the date hereof, and all of the 2021 Warrants areexercised, it would result in a total of 75,000,000 additional shares of Common Stock becoming issued and outstanding, which represents approximately 50% of the totalnumber of shares of Common Stock authorized as of January 31, 2022. In addition, our stockholders and the holders of our stock options and other warrants that weissued may also sell amounts of our Common Stock in the public market. The sale of a significant portion of any of these shares of Common Stock in the public market atone time could create downward pressure on the market price of our Common Stock. In addition, the fact that our stockholders, including the holders of Preferred Stock,option holders and warrant holders, including the 2021 Warrants, could sell substantial amounts of our Common Stock in the public market, whether or not sales haveoccurred or are occurring, could make it more difficult for us to raise additional financing through the sale of equity or equity-related securities in the future at a timeand/or at a price that we deem reasonable or appropriate, or at all. Risks Related to Potential Litigation The pharmaceutical and biopharmaceutical industries are characterized by patent litigation, and any litigation or claim against us may impose substantial costson us, place a significant strain on our financial resources, divert the attention of management from our business and harm our reputation. There has been substantial litigation in the pharmaceutical and biopharmaceutical industries with respect to the manufacture, use and sale of new products that are thesubject of conflicting patent rights. For the most part, these lawsuits relate to the validity, enforceability, and infringement of patents. We rely upon patents, tradesecrets, know-how, continuing technological innovations and licensing opportunities to develop and maintain our competitive position, and we may initiate claims todefend our intellectual property rights as a result. Other parties may have issued patents or be issued patents that may prevent the sale of our products or know-how orrequire us to license such patents and pay significant fees or royalties to produce our products. In addition, future patents may be issued to third parties which ourtechnology may infringe. Because patent applications can take many years to issue and because patent applications are not published for a period of time, or in somecases at all, there may be applications now pending of which we are unaware that may later result in issued patents that our products infringe. Intellectual property litigation, regardless of outcome, is expensive and time-consuming, would divert management's attention from our business and could have amaterial negative effect on our business, operating results, or financial condition. If a dispute involving our proprietary technology were resolved against us, it couldmean the earlier entry of some or all third parties seeking to compete in the marketplace for a given product, and a consequent significant decrease in the price we couldcharge for our product. If such a dispute alleging that our technology or operations infringed third-party patent rights were to be resolved against us, we might berequired to pay substantial damages, including treble damages and attorney's fees if we were found to have willfully infringed a third party's patent, to the party claiminginfringement, to develop non-infringing technology, to stop selling any products we develop, to cease using technology that contains the allegedly infringingintellectual property or to enter into royalty or license agreements that may not be available on acceptable or commercially practical terms, if at all. If our product or products cause an unexpected reaction to a patient or patients in certain ways that may have caused or contributed to serious injury, we may besubject to product liability claims, and if product liability lawsuits are brought against us, they could result in costly litigation and significant liabilities. Despite all reasonable efforts to ensure safety, it is possible that we or our distributors will sell our products or products that we currently do not sell but may sell in thefuture, which are defective, to which patients/customers react in an unexpected manner, or which are alleged to have side effects or otherwise not work for the product’sintended purpose. The manufacture and sale of such products may expose us to potential liability, including regulatory enforcement actions, and the industries in whichour products are likely to be sold have been subject to significant product liability litigation. Any claims, with or without merit, could result in costly litigation, reduced sales, significant liabilities and diversion of our management's time and attention, and couldhave a material adverse effect on our reputation, financial condition, business and results of operations. We cannot make assurances that any liability insurancecoverage that we qualify for, if at all, will fully satisfy any liabilities brought for any event or injury that is attributed to our product or products. If a product liability claim is brought against us, we may be required to pay legal and other expenses to defend the claim and, if the claim is successful, damage awardsmay not be covered, in whole or in part, by our insurance. We may not have sufficient capital resources to pay a judgment, in which case our creditors could levyagainst our assets. We may also be obligated to indemnify our collaborators and make payments to other parties with respect to product liability damages and claims.Defending any product liability claims, or indemnifying others against those claims, could require us to expend significant financial and managerial resources. 16Table of Contents If we are unable to protect our intellectual property, our competitors could develop and market products similar to ours that may reduce demand for our products. Our success, competitive position and potential future revenues will depend in significant part on our ability to protect our intellectual property. We rely on the patent,trademark, copyright and trade secret laws of the U.S. and other countries, as well as confidentiality and nondisclosure agreements, to protect our intellectual propertyrights. We apply for patents covering our technologies as we deem appropriate. There is no assurance that any patents issued to us, or in-licensed or assigned to us by third parties will not be challenged, invalidated, found unenforceable orcircumvented, or that the rights granted thereunder will provide competitive advantages to us. If we or our collaborators or licensors fail to file, prosecute, obtain ormaintain certain patents, our competitors could market products that contain features and clinical benefits similar to those of any products we develop, and demand forour products could decline as a result. Further, although we have taken steps to protect our intellectual property and proprietary technology, third parties may be able todesign around our patents or, if they do infringe upon our technology, we may not be successful or have sufficient resources in pursuing a claim of infringement againstthose third parties. Any pursuit of an infringement claim by us may involve substantial expense and diversion of management attention. We also rely on trade secrets and proprietary know-how that we seek to protect by confidentiality agreements with our employees, consultants, and collaborators. Ifthese agreements are not enforceable, or are breached, we may not have adequate remedies for any breach, and our trade secrets and proprietary know-how may becomeknown or be independently discovered by competitors. We operate in the State of California. California law prevents us from imposing a delay before an employee, who may have access to trade secrets and proprietary know-how, can commence employment with a competing company. Although we may be able to pursue legal action against competitive companies improperly using ourproprietary information, we may not be aware of any use of our trade secrets and proprietary know-how until after significant damage has been done to our Company. Furthermore, the laws of foreign countries may not protect our intellectual property rights to the same extent as the laws of the U.S. If our intellectual property does notprovide significant protection against foreign or domestic competition, our competitors, including generic manufacturers, could compete more directly with us, whichcould result in a decrease in our market share. All of these factors may harm our competitive position. ITEM 1B.UNRESOLVED STAFF COMMENTS Not Applicable. ITEM 2.PROPERTIES Our principal executive offices and administrative operations are located at 2000 Powell Street, Suite 1150, Emeryville, California. In total, we lease approximately 7,675square feet of office space in the facility pursuant to the Lease expiring on July 31, 2027. Our wholly-owned subsidiary, DERMAdoctor, leases approximately 19,136 square feet of space at 4346 Belgium Boulevard, Building 2, Riverside, Missouri, for lightmanufacturing, storage, distribution of products and administrative functions, pursuant to the Subsidiary Lease expiring on December 31, 2024. ITEM 3.LEGAL PROCEEDINGS From time to time, the Company may be involved in various legal proceedings arising in the ordinary course of business. As of December 31, 2021, there were no mattersthat, in the opinion of management, would ultimately result in liability that would have a material adverse effect on the Company’s financial position, results ofoperations or cash flows. ITEM 4.MINE SAFETY DISCLOSURES Not Applicable. 17Table of Contents PART II ITEM 5.MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES Market Information Our common stock is listed on the NYSE American, under the symbol “NBY.” Holders As of March 24, 2022, there were approximately 123 holders of record of our common stock. This figure does not reflect persons or entities that hold their stock innominee or “street” name through various brokerage firms. Dividend Policy We have not paid cash dividends on our common stock since our inception. We currently expect to retain earnings primarily for use in the operation and expansion ofour business; therefore, we do not anticipate paying any cash dividends in the foreseeable future. Any future determination to pay cash dividends will be at thediscretion of our Board of Directors and will be dependent upon our financial condition, results of operations, capital requirements, restrictions under any existingindebtedness and other factors the Board of Directors deems relevant. ITEM 6. [RESERVED] ITEM 7.MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The following discussion of our financial condition and results of operations should be read together with our consolidated financial statements and related notesincluded in Part II, Item 8 of this report. This discussion contains forward-looking statements that involve risks and uncertainties. Words such as "expects,""anticipated," "will," "may," "goals," "plans," "believes," "estimates," "concludes," determines," variations of these words, and similar expressions are intended toidentify these forward-looking statements. As a result of many factors, including those set forth under the section entitled "Risk Factors" in Item 1A. and elsewhere inthis report, our actual results may differ materially from those anticipated in these forward-looking statements. Readers are cautioned that these forward-lookingstatements are only predictions based upon assumptions made that we believed to be reasonable at the time and are subject to risks and uncertainties. Therefore,actual results may differ materially and adversely from those expressed in any forward-looking statements. Except as required by law, we undertake no obligation torevise or update publicly any forward-looking statements. Overview We are a company focused on the development and sale of scientifically-created and clinically-proven eyecare and skincare products. Our portfolio of products includesa number of eyecare products under our Avenova brand, led by Avenova Spray which contains our proprietary, stable and pure form of hypochlorous acid, and over 30dermatologist-developed skincare products under our DERMAdoctor brand, as further described in Item 1. (Business). On November 5, 2021, we purchased DERMAdoctor, LLC (“DERMAdoctor”) (the “DERMAdoctor Acquisition”) for approximately $12.0 million as well as $3.0 million ofcontingent consideration payable in cash or our common stock over the next two years upon the achievement of certain contribution margin targets. For additionalinformation regarding the DERMAdoctor Acquisition, see Note 3 “Business Combination” in the Notes to Consolidated Financial Statements in Part II, Item 8 of thisreport. The DERMAdoctor Acquisition was funded, in part, through the sale of an aggregate of 15,000 shares of Preferred Stock (convertible into an aggregate of 37,500,000shares of Common Stock) and the 2021 Warrants (exercisable for 37,500,000 shares of Common Stock) for an aggregate purchase price of $15.0 million. For additionalinformation regarding the Preferred Stock and the 2021 Warrants, see Note 13, “Warrant Liability” and Note 14, “Stockholders’ Equity” in the Notes to ConsolidatedFinancial Statements in Part II, Item 8 of this report. In 2021, we also continued to expand our Avenova product offerings, including adding the following products under the Avenova eyecare brand: (1) Avenova MoistHeating Eye Compress and (2) the i-Chek. We expanded our distribution efforts through our partnership with ImprimisRx, one of the nation’s leading ophthalmology-focused pharmaceutical businesses to promote Avenova Spray. Financial Overview and Outlook We have incurred net losses and generated negative cash flows from operations since inception and expect to incur losses in the future as we continue to commercializeour eyecare and skincare products and integrate the DERMAdoctor business. Our net losses were $5.8 million and $11.0 million for the years ended December 31, 2021and 2020, respectively. As of December 31, 2021, we had an accumulated deficit of $141.9 million and current assets totaling $13.2 million. We expect to grow commercial sales of Avenova and DERMAdoctor branded products through an expansion of domestic and international market penetration, with aparticular focus on online channels, and the development of new product offerings under both brand names. 18Table of Contents Critical Accounting Policies and Estimates Our consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States. The preparation of theseconsolidated financial statements requires us to make estimates, assumptions and judgments that affect the reported amounts of assets and liabilities and the disclosureof contingent assets and liabilities at the date of the financial statements, as well as the reported revenues and expenses during the reporting periods. In preparing theseconsolidated financial statements, management has made its best estimates and judgments of certain amounts, giving due consideration to materiality. On an ongoingbasis, we evaluate our estimates and judgments related to revenue recognition, research and development costs, patent costs, stock-based compensation, income taxes,earnout contingency, and warrant liability. We base our estimates on historical experience and on various other factors that we believe are reasonable under thecircumstances. Actual results may differ from these estimates. While our significant accounting policies are more fully described in Note 2, “Summary of Significant Accounting Policies” in the Notes to Consolidated FinancialStatements in Part II, Item 8 of this report, we believe that the following accounting policies are most critical to fully understanding and evaluating our reported financialresults. Allowance for Doubtful Accounts The Company charges bad debt expense and records an allowance for doubtful accounts when management believes it to be unlikely that specific invoices will becollected. Management identifies amounts due that are in dispute, and it believes are unlikely to be collected. Management recorded no reserve for accounts receivableat December 31, 2021 and December 31, 2020. Inventory Inventory is comprised of (1) raw materials and supplies, such as bottles, packaging materials, labels, boxes, and pumps; (2) goods in progress; and (3) finished goods.We utilize contract manufacturers to produce our products and the price paid to these manufacturers is included in inventory. Inventory is stated at the lower of cost orestimated net realizable value determined by the first-in, first-out method. At December 31, 2021 and 2020, management had recorded an allowance for excess andobsolete inventory and lower of cost or estimated net realizable value adjustments of $641 thousand and $236 thousand, respectively. Business Combinations We account for business combinations using the acquisition method of accounting, in accordance with ASC 805, Business Combinations. The acquisition methodrequires identifiable assets acquired and liabilities assumed be recognized and measured at fair value on the acquisition date, which is the date that the acquirer obtainscontrol of the acquired business. The amount by which the fair value of consideration transferred as the purchase price exceeds the net fair value of assets acquired andliabilities assumed is recorded as goodwill. The determination of estimated fair value requires us to make significant estimates and assumptions. These fair value determinations require judgment and involve theuse of significant estimates and assumptions, including assumptions with respect to future cash inflows and outflows, discount rates, and asset lives, among otheritems. As a result, we may record adjustments to the fair values of assets acquired and liabilities assumed within the measurement period (up to one year from theacquisition date) with the corresponding offset to goodwill. Transaction costs associated with business combinations are expensed as they are incurred. Goodwill and Intangible Assets Goodwill represents the excess of the consideration transferred over the estimated fair value of assets acquired and liabilities assumed in a business combination.Intangible assets are measured at their respective fair values as of the acquisition date and may be subject to adjustment within the measurement period, which may beup to one year from the acquisition date. We do not amortize goodwill and intangible assets with indefinite useful lives. Goodwill and indefinite-lived intangible assetsare tested for impairment annually, or more frequently if events or changes in circumstances indicate that it is more likely than not that the assets are impaired. Intangible Asset Fair Value (inthousands) Useful Life(in years) AmortizationMethod Customer relationships $290 7 Straight line Trade secrets / product formulations 2,890 9 Straight line Trade names 2,080 Indefinite N/A Goodwill 4,528 Indefinite N/A $9,788 Valuation of Contingent Consideration Resulting from a Business Combination In connection with certain acquisitions, we may be required to pay future consideration that is contingent upon the achievement of specified milestone events. Werecord contingent consideration resulting from a business combination at its fair value on the acquisition date. Each quarter thereafter, we revalue these obligations andrecord increases or decreases in their fair value within our consolidated statements of operations until such time as the specified milestone achievement period iscomplete. Increases or decreases in fair value of the contingent consideration liabilities can result from updates to assumptions such as the expected timing or probability ofachieving the specified milestones. Significant judgment is employed in determining these assumptions as of the acquisition date and for each subsequent period.Updates to assumptions could have a significant impact on our results of operations in any given period. Actual results may differ from estimates. Impairment of Long-Lived Assets The Company accounts for long-lived assets, other than goodwill and intangible assets, and operating lease right-of-use assets in accordance with ASC 360, Property,Plant and Equipment, which requires that companies consider whether events or changes in facts and circumstances, both internally and externally, may indicate thatan impairment of long-lived assets held for use or right-of-use assets are present. The Company reviews long-lived assets and right-of-use assets for impairment at leastannually or whenever events or changes in business circumstances indicate that the carrying amount of the assets may not be fully recoverable or that the useful livesof these assets are no longer appropriate. Determination of recoverability is based on an estimate of undiscounted future cash flows resulting from the use of the assetand its eventual disposition. In the event that such cash flows are not expected to be sufficient to recover the carrying amount of the asset, the assets are written downto their estimated fair values and the loss is recognized in the statements of operations. There were no impairment charges during the years ended December 31, 2021and 2020, respectively. 19Table of Contents Leases At the inception of an arrangement, the Company determines whether the arrangement is or contains a lease based on the unique facts and circumstances present.Operating lease liabilities and their corresponding right-of-use assets are recorded based on the present value of lease payments over the expected lease term. Theinterest rate implicit in lease contracts is typically not readily determinable. As such, the Company utilizes its incremental borrowing rate, which is the rate incurred toborrow, on a collateralized basis over a similar term, an amount equal to the lease payments in a similar economic environment. Certain adjustments to the right-of-useassets may be required for items such as initial direct costs paid or incentives received. The Company has elected to combine lease and non-lease components as a single component for all leases in which it is a lessee or a lessor. The lease expense isrecognized over the expected term on a straight-line basis. Operating leases are recognized on the balance sheet as right-of-use assets, operating lease liabilities currentand operating lease liabilities non-current. Revenue Recognition Revenue generated through the Company’s webstores, primarily Avenova.com and DERMAdoctor.com, is recognized upon fulfillment, which generally occurs upondelivery of the related products to multiple third-party carriers. Shipping and handling costs are expensed as incurred and included in cost of goods sold in theconsolidated statements of operations and comprehensive loss. We present revenue net of sales taxes and refunds. Revenue generated through third-party online retailers is also recognized upon fulfillment, which generally occurs upon delivery of the related products to a third-partycarrier. We present revenue net of commissions and any related fulfillment and shipping fees charged by these partners. Fees paid to partners for promoting our productare expensed as incurred and are included in sales and marketing expenses within the operating expenses in the consolidated statements of operations andcomprehensive loss. The Company also generates Avenova Spray revenue through major pharmacy distribution partners. Product supply of Avenova Spray is the only performanceobligation contained in these arrangements, and the Company recognizes product revenue upon transfer of control to its major distribution partners at the amount ofconsideration that the Company expects to be entitled to, generally upon delivery to the distributor on a “sell-in” basis. Upon recognition of product sales, contractliabilities are recorded for invoiced amounts that are subject to significant reversal, including product revenue allowances for cash consideration paid to customers forservices, discounts, rebate programs, and product returns. The Company derives its rate of return from historical data and updates its return rate assumption quarterly.Payment for product supply is typically due 30 days after control transfers to the distributor. Revenue generated through the Company’s partner pharmacies is recognized when control of the product transfers to the end customer. Revenue for product sales to other retailers is generally recognized upon transfer of control to the retailer, which generally occurs upon delivery of the related productsto a third-party carrier, net of estimated future product returns. The following table summarizes the activity in the accounts related to product revenue allowances (in thousands): Wholesaler/Pharmacyfees Cashdiscounts Rebate Returns Total Balance at December 31, 2020 $(91) $(10) $55 $(527) $(573)Current provision related to sales made during current period (249) (60) (723) (819) (1,851)Payments 256 57 293 548 1,154 Balance at December 31, 2021 $(84) $(13) $(375) $(798) $(1,270) 20Table of Contents Cost of Goods Sold Cost of goods sold includes third-party manufacturing costs, shipping and handling costs, and other costs associated with products sold. Cost of goods sold alsoincludes any necessary allowance for excess and obsolete inventory along with lower of cost and estimated net realizable value. Research and Development Costs The Company charges research and development costs to expense as incurred. These costs include all costs associated with research, development, and regulatoryactivities, including submissions to the Food and Drug Administration (“FDA”). Stock-Based Compensation The Company’s stock-based compensation includes grants of stock options and restricted stock units (“RSUs”) to employees, consultants and non-employee directors.The expense associated with these grants is recognized in the Company’s consolidated statements of stockholders’ equity based on their fair values as they are earnedunder the applicable vesting terms. For stock options granted, the fair value of the stock options is estimated using a Black-Scholes option pricing model. See Note 15,“Equity-Based Compensation” in the Notes to Consolidated Financial Statements in Part II, Item 8 of this report for further information regarding stock-basedcompensation expense and the assumptions used in estimating that expense. The Company accounts for RSUs issued to employees and non-employees (consultantsand advisory board members) based on the fair market value of the Company’s common stock as of the date of issuance. Income Taxes The Company accounts for income taxes under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequencesattributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and taxcredit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporarydifferences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period thatincludes the enactment date. A valuation allowance is recognized if it is more likely than not that some portion or the entire deferred tax asset will not be recognized. Common Stock Warrant Liabilities The Company accounts for common stock warrants issued in connection with its equity offerings in accordance with the provisions of Accounting StandardsCodification (“ASC”) 480, Distinguishing Liabilities from Equity, and ASC 815, Derivatives and Hedging. The Company accounts for common stock warrants issued in connection with share-based compensation arrangements in accordance with the provisions of ASC 718,Stock Compensation, which encompasses the provisions of ASC 480, Distinguishing Liabilities from Equity. The Company classifies as equity any contracts that (i) require physical settlement or net-share settlement or (ii) give the Company a choice of net-cash settlement orsettlement in its own shares (physical settlement or net-share settlement). The Company classifies as assets or liabilities any contracts that (i) require net-cashsettlement (including a requirement to net-cash settle the contract if an event occurs and if that event is outside the control of the Company) or (ii) give the counterpartya choice of net-cash settlement or settlement in shares (physical settlement or net-share settlement). For warrants that are classified as liabilities, the Company records the fair value of the warrants at each balance sheet date and records changes in the estimated fairvalue as a non-cash gain or loss in the consolidated statements of operations and comprehensive loss. The fair values of these warrants are determined using the Black-Scholes option pricing model, the Binomial Lattice (“Lattice”) valuation model, or the Monte Carlo simulation model where deemed appropriate. These values are subjectto a significant degree of management’s judgment. Recent Accounting Pronouncements See Note 2, “Summary of Significant Accounting Policies”, in the Notes to Consolidated Financial Statements in Part II, Item 8 of this report for information on recentaccounting pronouncements. 21Table of Contents Results of Operations Comparison of Years Ended December 31, 2021 and 2020 Year EndedDecember 31, Dollar Percent 2021 2020 Change Change (in thousands) (in thousands) Statement of Operations Sales: Product revenue, net $8,397 $9,916 $(1,519) (15%)Other revenue, net 24 18 6 33%Total sales, net 8,421 9,934 (1,513) (15%) Cost of goods sold 2,776 3,970 (1,194) (30%)Gross profit 5,645 5,964 (319) (5%) Research and development 44 285 (241) (85%)Sales and marketing 7,223 6,173 1,050 17%General and administrative 7,240 5,932 1,308 22%Total operating expenses 14,507 12,390 2,117 17%Operating loss (8,862) (6,426) (2,436) 38% Non-cash gain (loss) on changes in fair value of warrant liability 4,615 (5,216) 9,831 (188%)Non-cash gain on changes in fair value of embedded derivative liability - 3 (3) (100%)Other (expense) income, net (1,577) 605 (2,182) (361%) Loss before provision for income taxes (5,824) (11,034) 5,210 (47%)Provision for income taxes - (5) 5 (100%)Net loss and comprehensive loss $(5,824) $(11,039) $5,215 (47%) Impact of DERMAdoctor Acquisition The above results include the financial results of DERMAdoctor beginning at the time of the Acquisition Closing on November 5, 2021 (see Note 3, “BusinessCombination” in the Notes to Consolidated Financial Statements in Part II, Item 8 of this report) which includes product revenue, net, of $0.6 million, goods sold of $0.3million, $0.2 million in sales and marketing costs and $0.3 million in general and administrative costs. Total Net Sales, Cost of Goods Sold and Gross Profit Product revenue, net, decreased by $1.5 million, or 15%, to $8.4 million for the year ended December 31, 2021, from $9.9 million for the year ended December 31, 2020.During the year ended December 31, 2020, we generated $3.1 million from the sale of KN95 Masks with no comparable revenue during the year ended December 31, 2021.We do not anticipate dedicating future Company resources toward the sale of KN95 Masks or other personal protective equipment and we do not expect any relatedfuture revenue. Offsetting this decrease, revenue from Avenova Spray increased $0.8 million in 2021 from $6.0 million for the year ended December 31, 2020 to $6.8 million for the yearended December 31, 2021. The increase was the result of an overall increase in the number of Avenova Spray units sold. The increase in units sold reflects continuedhigher number of over-the-counter and physician dispensed units sold, partially offset by continued decrease in the number of units sold through pharmacy channels.The increase in over-the-counter units includes the impact of our ongoing focus and increasing spend on digital marketing and social media initiatives to promoteAvenova Spray directly to end consumers. The overall increase in revenue due to unit sales was also partially offset by the lower average net selling price associatedwith over-the-counter and physician dispensed units as compared to units sold through our pharmacy channels. We also recognized product revenue, net, of $0.6 million from the sale of DERMAdoctor products during the period after completion of the DERMAdoctor Acquisitionon November 5, 2021, with no comparable revenue during the year ended December 31, 2020. Cost of goods sold decreased by $1.2 million, or 30%, to $2.8 million for the year ended December 31, 2021, from $4.0 million for the year ended December 31, 2020. Thedecrease was primarily the result of cost of goods sold from the sale of KN95 Masks during the 2020 period, with no comparable cost in the 2021 period. This decreasewas partially offset by the overall increase in the number of Avenova Spray units sold during the year ended December 31, 2021, as compared to the 2020 period. Wealso recognized cost of goods sold of $0.3 million from the sale of DERMAdoctor products during the period after completion of the DERMAdoctor Acquisition, withno comparable cost of goods sold during the year ended December 31, 2020. 22Table of Contents Gross profit decreased by $0.3 million, or 5%, to $5.6 million for the year ended December 31, 2021, from $6.0 million for the year ended December 31, 2020. The decreasereflects the lack of KN95 Mask sales during 2021, offset by an increase in sales of higher margin Avenova Spray during the 2021 period as well as the sale ofDERMAdoctor products after the completion of the DERMAdoctor Acquisition. Research and development Research and development expenses decreased by $241 thousand, or 85%, to $44 thousand for the year ended December 31, 2021, from $285 thousand for the yearended December 31, 2020. The decrease was primarily the result of one-time regulatory expenses incurred in the 2020 period with no comparable expenditures in the 2021period. Sales and marketing Sales and marketing expenses increased by $1.0 million, or 17%, to $7.2 million for the year ended December 31, 2021, from $6.2 million for the year ended December 31,2020. This is reflective of an increase in marketing costs for Avenova branded products, primarily digital advertising, and costs associated with the Company’s relaunchof CelleRx Clinical Reset. Going forward, the Company anticipates focusing resources on the DERMAdoctor brand instead of driving growth of CelleRx Clinical Reset.The 2021 period also includes $0.2 million in sales and marketing costs incurred in connection with DERMAdoctor products during the period after the DERMAdoctorAcquisition on November 5, 2021 with no comparable expense during the year ended December 31, 2020. These increases were partially offset by a decrease in salesrepresentative headcount and associated costs in the first quarter of 2021. General and administrative General and administrative expenses increased by $1.3 million, or 22%, to $7.2 million for the year ended December 31, 2021, from $5.9 million for the year endedDecember 31, 2020. The increase was primarily a result of one-time costs incurred in conjunction with the DERMAdoctor Acquisition and the related financing during the year endedDecember 31, 2021 with no comparable expense in the 2020 period. Employee-related costs, consisting primarily of non-cash stock-based compensation costs, alsoincreased in the 2021 period as compared to 2020. The 2021 period also includes $0.3 million in general and administrative costs incurred by DERMAdoctor during theperiod after the DERMAdoctor Acquisition on November 5, 2021 with no comparable costs during the year ended December 31, 2020. These increases were partially offset overall by a decrease in 2021 in costs incurred in conjunction with a dispute with the Company’s former Interim President and ChiefExecutive Officer and Chief Financial Officer as further described in Note 10, “Commitments and Contingencies”, in the Notes to Consolidated Financial Statements,included in Part II, Item 8 of this report. The Company also received an insurance reimbursement for these costs which further reduced general and administrative costsin the 2021 period. Non-cash gain (loss) on changes in fair value of warrant liability The adjustments to the fair value of warrant liability resulted in a gain of $4.6 million for the year ended December 31, 2021 and a loss of $5.2 million for the year endedDecember 31, 2020. For additional information regarding the warrants and their valuation, please see Note 13, “Warrant Liability”, in the Notes to Consolidated FinancialStatements, in Part II, Item 8 of this report. Other (expense) income, net Other (expense) income, net, was a net expense of $1.6 million for the year ended December 31, 2021 as compared to a net income of $0.6 million for the year endedDecember 31, 2020. The expense of $1.6 million for the year ended December 31, 2021 represented issuance costs related to the 2021 Warrants. For additional informationregarding the issuance of the 2021 Warrants, please see Note 14 “Stockholders’ Equity”. During the year ended December 31, 2020, the Company recorded income of$0.9 million as the result of income recognized as qualifying expenses incurred under the PPP Loan. Please see Note 20, “Paycheck Protection Program”, to the Notes toConsolidated Financial Statements, included in Part II, Item 8 of this report. Comparison of Years Ended December 31, 2020 and 2019 For this discussion, see the “Comparison of Years Ended December 31, 2020 and 2019 in Part II, Item 7. Management’s Discussion and Analysis of Financial Conditionand Results of Operations of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020. Liquidity and Capital Resources As of December 31, 2021, our cash and cash equivalents were $7.5 million, compared to $12.0 million as of December 31, 2020. Based primarily on the funds available atDecember 31, 2021, management believes that the Company’s existing cash and cash equivalents and cash flows generated from product sales will be sufficient toenable the Company to meet its planned operating expenses at least through March 29, 2023. However, changing circumstances may cause the Company to expend cashsignificantly faster than currently anticipated, and the Company may need to spend more cash than currently expected because of circumstances beyond its control thatimpact the broader economy such as the COVID-19 pandemic and the conflict between Russia and Ukraine. 23Table of Contents Cash Used in Operating Activities Net cash used in operating activities was $9.2 million for the year ended December 31, 2021, which consisted primarily of a net loss of $5.8 million, adjusted primarily bynon-cash gain of $4.6 million on the change in fair value of warrant liability, stock-based compensation expenses of $0.9 million, and a net decrease of $38 thousand inour net operating assets and liabilities. Net cash used in operating activities was $4.7 million for the year ended December 31, 2020, which consisted primarily of a net loss of $11.0 million, adjusted primarily bynon-cash loss of $5.2 million on the change in fair value of warrant liability, stock-based compensation expenses of $0.5 million, issuance of RSUs for services of $0.2million, non-cash interest expense related to amortization of debt issuance cost and debt discount of $0.2 million, and a net increase of $0.2 million in our net operatingassets and liabilities. Cash Used in Investing Activities For the years ended December 31, 2021, cash used in investing activities was $12.0 million which was primarily the result of $12.0 million, net of cash, paid at closing ofthe DERMAdoctor Acquisition (see Note 3, “Business Combination” in the Notes to Consolidated Financial Statements in Part II, Item 8 of this report). Capitalexpenditures were $52 thousand and $26 thousand for the years ended December 31, 2021 and 2020, respectively, for the purchase of property and equipment. Cash Provided by Financing Activities Net cash provided by financing activities was $17.0 million for the year ended December 31, 2021. The Company received net proceeds of $14.9 million from the 2021Private Placement. Additionally, the Company received net proceeds of $1.8 million from an at-the-market offering and equity program (“ATM Program”) with LadenburgThalmann & Co. Inc. (“Ladenburg”). See Note 14, “Stockholders’ Equity” in the Notes to Consolidated Financial Statements in Part II, Item 8 of this report for furtherinformation regarding the 2021 Private Placement and the ATM Program. Net cash provided by financing activities was $9.8 million for the year ended December 31, 2020. The Company received net proceeds of $5.2 million from an ATMProgram, and an additional $7.1 million from the exercise of warrants. These amounts were offset by repayments of $1.5 million on the Convertible Note (as later defined)issued to Iliad Research and Trading L.P. and repayment of $1.0 million on the Promissory Note (as later defined), both paid using proceeds raised through an ATMProgram with Ladenburg. See Note 14, “Stockholders’ Equity,” Note 12, “Convertible Note” and Note 11, “Related Party Note Payable” in the Notes to ConsolidatedFinancial Statements in Part II, Item 8 of this report for further information regarding the ATM Program, Convertible Note and Promissory Note. 24Table of Contents Quarterly Results of Operations (unaudited) The following table presents unaudited quarterly results of operations for the eight most recent quarters ending with the quarter ended December 31, 2021. Thisinformation has been derived from our unaudited consolidated financial statements and has been prepared by us on a basis consistent with our audited annualconsolidated financial statements and includes all adjustments, consisting only of normal recurring adjustments, which management considers necessary for a fairpresentation of the information for the periods presented. Quarter Ended December31, September30, June30, March31, December31, September30, June30, March31, 2021 2021 2021 2021 2020 2020 2020 2020 (in thousands, except per share data) Statements of Operations Data: Sales: Product revenue, net $2,636 $1,834 $2,126 $1,801 $1,878 $2,167 $3,979 $1,892 Other revenue, net 5 6 7 6 10 3 5 — Total sales, net 2,641 1,840 2,133 1,807 1,888 2,170 3,984 1,892 Cost of goods sold 1,214 493 614 455 813 536 2,040 581 Gross profit 1,427 1,347 1,519 1,352 1,075 1,634 1,944 1,311 Operating expenses: Research and development 9 10 21 5 36 125 115 9 Sales and marketing 1,900 1,855 1,788 1,680 1,498 1,692 1,423 1,560 General and administrative 2,713 1,771 1,569 1,187 1,299 1,879 1,477 1,277 Total operating expenses 4,622 3,636 3,378 2,872 2,833 3,696 3,015 2,846 Operating loss (3,195) (2,289) (1,859) (1,520) (1,758) (2,062) (1,071) (1,535) Non-cash gain (loss) on changes infair value of warrant liability 4,615 — — — 8 (1,589) (3,772) 137 Non-cash gain (loss) on changes infair value of embedded derivativeliability — — — — — — 2 Other (expense) income, net (1,579) — — 2 — 429 362 (186)Loss before provision for incometaxes (159) (2,289) (1,859) (1,518) (1,750) (3,221) (4,481) (1,582)Provision for income taxes — — — — (4) — (1) — Net loss $(159) $(2,289) $(1,859) $(1,518) $(1,754) $(3,221) $(4,482) $(1,582) Less: Preferred deemed dividend 735 — — — — — — — Net loss attributable to commonstockholders $(894) $(2,289) $(1,859) $(1,518) $(1,754) $(3,221) $(4,482) $(1,582) Net loss per share attributable tocommon stockholders: Basic and diluted $(0.02) $(0.05) $(0.04) $(0.04) $(0.04) $(0.08) $(0.15) $(0.06)Shares used in computing net loss pershare: Basic and diluted 45,311 44,921 42,561 41,782 41,776 40,037 30,384 27,978 As of December 31, 2021, we had net operating loss carryforwards for federal and state income tax purposes of $125.9 million and $106.8 million, respectively. The federalnet operating loss carryforwards consist of $94.9 million generated before January 1, 2018, which will begin to expire in 2024 and $31.0 million that will carryforwardindefinitely but are subject to an 80% limitation for years following December 31, 2021. The Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”)changed net loss carryforward provisions, allowing a full utilization of NOL carryforwards through December 31, 2020. The state net operating loss carryforwards willbegin to expire in 2028. As of December 31, 2021, we also had tax credit carryforwards for federal income tax purposes of $1.3 million and $0.3 million for state taxpurposes. If not utilized, the federal tax credits will begin expiring in 2026. The state tax credits have an indefinite carryover period. Current federal and California tax laws include substantial restrictions on the utilization of net operating loss carryforwards in the event of an ownership change of acorporation. Accordingly, our ability to utilize net operating loss carryforwards may be limited as a result of such ownership changes. Such a limitation could result inthe expiration of carryforwards before they are utilized. 25Table of Contents Inflation We do not believe that inflation has had a material impact on our business and operating results during the periods presented, and we do not expect it to have a materialimpact in the near future, although there can be no assurances that our business will not be affected by inflation in the future. Off-Balance Sheet Arrangements We did not have any off-balance sheet arrangements at December 31, 2021 and December 31, 2020 as defined in Item 303(a)(4)(ii) of SEC Regulation S-K. Seasonality Avenova Branded Products Consistent with our peers in the United States pharmaceutical industry, prescriptions for Avenova Spray experience seasonality with the first quarter of each yeartypically being the lowest revenue quarter. This annual phenomenon is due to consumers facing the need to satisfy health insurance deductibles and changes tocopays as each new insurance year begins. Sales of Avenova Spray through non-prescription channels, along with the other Avenova branded products, experienceless seasonality with demands consistent throughout the year. Dermatology/Skincare Products Our DERMAdoctor products are sold through wholesale distribution relationships with third parties such as Costco, Amazon and others; therefore, we may receiveperiodic large orders that result in large chunks of revenue that are received in irregular intervals during the year. Historically sales of DERMAdoctor products thatcontain sunscreen and antiperspirants are higher in the summer seasons and sales of DERMAdoctor products that contain moisturizers are higher in the fall and wintermonths. In addition, DERMAdoctor products will typically experience an uptick in sales during the fourth quarter around the holidays of each country in which itsproducts are sold, particularly in the United States and China. Contractual Obligations Our contractual cash commitments as of December 31, 2021 were as follows (in thousands): Contractual Obligations Less than 1year 1-3 years 3-5 years More than 5years Total Facility leases $203 $259 $— $— $462 Equipment leases 13 — — — 13 Total $216 $259 $— $— $475 Our commitments as of December 31, 2021 consisted primarily of facility operating leases and an operating lease for two copiers. The total commitment for the facility leases were $0.5 million due over the leases’ terms as of December 31, 2021 and December 31, 2020, respectively. Our corporateheadquarters lease was subsequently amended on January 19, 2022, which included extending the lease term until 2027. We had an operating lease for two copiers as of December 31, 2021. The total commitment for the lease as of December 31, 2021 was $13 thousand due over the leaseterms, compared to $29 thousand as of December 31, 2020. See Note 10, “Commitments and Contingencies” and Note 22, “Subsequent Events” in the Notes to Consolidated Financial Statements in Part II, Item 8 of this report forfurther information regarding these leases. ITEM 7A.QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK Our market risk consists principally of interest rate risk on our cash and cash equivalents. Our exposure to market risk is limited primarily to interest income sensitivity,which is affected by changes in interest rates, particularly because our current liquid assets at December 31, 2021 were held in cash and cash equivalents. Our investment policy restricts our investments to high-quality investments and limits the amounts invested with any one issuer, industry, or geographic area. The goalsof our investment policy are as follows: preservation of capital, assurance of liquidity needs, best available return on invested capital, and minimization of capitaltaxation. Some of the securities in which we invest may be subject to market risk. This means that a change in prevailing interest rates may cause the principal amount ofthe investment to fluctuate. For example, if we hold a security that was issued with an interest rate fixed at the then-prevailing rate and the prevailing interest rate laterrises, the principal amount of our investment will probably decline. To minimize this risk, in accordance with our investment policy, we maintain our cash and cashequivalents in short-term marketable securities, including money market mutual funds, Treasury bills, Treasury notes, certificates of deposit, commercial paper, andcorporate and municipal bonds. The risk associated with fluctuating interest rates is limited to our investment portfolio. Due to the short-term nature of our investmentportfolio, we believe we have minimal interest rate risk arising from our investments. As of December 31, 2021 and 2020, a 10% change in interest rates would have hadan immaterial effect on the value of our investment portfolio. We do not use derivative financial instruments in our investment portfolio. We do not hold any instrumentsfor trading purposes. With most of our focus on the domestic U.S. market, we have not had any material exposure to foreign currency rate fluctuations. 26Table of Contents ITEM 8.FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA The financial statements required by this Item 8 are set forth below. Our quarterly financial information is set forth in Item 7 of this report and is hereby incorporated intothis Item 8 by reference. INDEX TO CONSOLIDATED FINANCIAL STATEMENTS PageReports of Independent Registered Public Accounting Firms28Consolidated Balance Sheets as of December 31, 2021 and 202032Consolidated Statements of Operations and Comprehensive Loss for the Years Ended December 31, 2021, 2020 and 201933Consolidated Statements of Stockholders' Equity for the Years Ended December 31, 2021, 2020 and 201934Consolidated Statements of Cash Flows for the Years Ended December 31, 2021, 2020 and 201935Notes to Consolidated Financial Statements37 27Table of Contents Report of Independent Registered Public Accounting Firm To the Stockholders and Board of DirectorsNovaBay Pharmaceuticals Inc.Emeryville, California Opinion on the Financial Statements We have audited the accompanying consolidated balance sheet of NovaBay Pharmaceuticals Inc. (the “Company”) as of December 31, 2021, the related consolidatedstatements of operations and comprehensive loss, stockholders’ equity, and cash flows for the year ended December 31, 2021, and the related notes (collectively referredto as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of theCompany at December 31, 2021 and the results of its operations and its cash flows for the year ended December 31, 2021 in conformity with accounting principlesgenerally accepted in the United States of America. The consolidated financial statements of the Company as of December 31, 2020 and for each of the two years in the period ended December 31, 2020 were audited byOUM & Co. LLP, who joined WithumSmith+Brown PC on July 15, 2021, and rendered their opinion on such statements on March 25, 2021. Basis for Opinion These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’sconsolidated financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States)(“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulationsof the Securities and Exchange Commission and the PCAOB. We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assuranceabout whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were weengaged to perform, an audit of its internal control over financial reporting. As part of our audit we are required to obtain an understanding of internal control overfinancial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, weexpress no such opinion. Our audit included performing procedures to assess the risks of material misstatement of the consolidated financial statements whether due to error or fraud andperforming procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in theconsolidated financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well asevaluating the overall presentation of the consolidated financial statements. We believe that our audit provides a reasonable basis for our opinion. Critical Audit Matters The critical audit matters communicated below are matters arising from the current period audit of the consolidated financial statements that were communicated orrequired to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the consolidated financial statements and (2)involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on theconsolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical auditmatters or on the accounts or disclosures to which they relate. Acquisition of DERMAdoctor, LLC – Valuation of Certain Intangible Assets Description of the Matter As described in Note 3 to the consolidated financial statements, the Company completed the acquisition of DERMAdoctor, LLC. (“DERMAdoctor”) on November 5,2021. The acquisition was accounted for under the acquisition method of accounting for business combinations. Accordingly, the purchase price was allocated to theassets acquired and liabilities assumed based on their respective fair values, including $2.1 million for the DERMAdoctor trade names and $2.9 million for proprietaryproduct formulations. 28Table of Contents Auditing the Company’s accounting for the acquisition was complex due to the significant estimates and assumptions management made to determine the fair value ofthe DERMAdoctor trade names and proprietary product formulations. Trade names were valued using the relief-from-royalty method and proprietary productformulations were valued using the multi-period excess earnings model. The determination of the fair value of these intangible assets required management to makesignificant estimates and assumptions related to forecasted sales growth rates, cash flows, market-based royalty rates, and estimated discount rates. These significantassumptions are forward looking and could be affected by future economic and market conditions. How We Addressed the Matter in Our Audit We obtained an understanding of the Company’s accounting for the acquisition, including reviewing the purchase agreement, evaluating the significant assumptionsand methods used in developing the fair value estimates, and testing the recognition of (1) the tangible assets acquired and liabilities assumed at fair value; (2) theidentifiable intangible assets acquired at fair value; (3) the fair value of contingent consideration (as discussed below) and (4) goodwill measured as a residual. To test the estimated fair value of the trade names and proprietary product formulations intangible assets, we performed audit procedures that included, among others,assessing the appropriateness of the valuation methodologies used and testing the significant assumptions used in the model, including the completeness andaccuracy of the underlying data. For example, we compared the significant assumptions to current industry, market and economic trends, and to the historical results ofthe acquired business and other guideline companies. We involved our valuation specialists to assist in our evaluation of the significant assumptions and models usedin the fair value estimates. Valuation of Contingent Consideration Description of the Matter As described in Note 2 to the consolidated financial statements, in accounting for the acquisition of DERMAdoctor, the Company recognized contingent considerationliabilities at the estimated fair value on the acquisition date. As mentioned above, the Company applied the acquisition method of accounting for businesscombinations. Subsequent changes to the fair value of the contingent consideration liabilities would be recorded within the consolidated statements of operations andcomprehensive loss in the period of change. The contingent consideration liability is based on the achievement of certain predetermined financial targets for the 2022and 2023 fiscal years. At December 31, 2021, the Company recorded $0.6 million in contingent earnout liability that was associated with DERMAdoctor businesscombination. This amount represented a ‘Level 3’ fair value measurement in the fair value hierarchy due to the significant unobservable inputs used in determining thefair value and the use of management judgment about the assumptions market participants would use in pricing the liabilities. Auditing the valuation of the contingent consideration liability was complex and required significant auditor judgment due to the complexity of the valuation methodand the high degree of subjectivity in evaluating certain assumptions required to estimate the fair value of the contingent consideration liability. Managementdetermined the estimated fair value of the contingent consideration liability using a Monte Carlo simulation model. The significant assumptions and estimates includethe probability the Company will achieve a specified range of revenue, profitability levels, volatility and discount rate. These significant assumptions are forwardlooking and consider anticipated market conditions, which in turn, requires subjective auditor judgement. How We Addressed the Matter in Our Audit To test the estimated fair value of the contingent consideration liability, our audit procedures included, among others, inspecting the terms of the executed acquisitionagreement, assessing the scenario analysis valuation method used, and testing the key inputs and significant assumptions discussed above. We involved our valuationspecialists who assisted in evaluating the appropriateness of the selected valuation methodology and evaluating the reasonableness of certain significant assumptionsused to estimate the fair value of the contingent consideration. We evaluated whether the assumptions and estimates used, including the probability the Company willachieve a specified range of revenue and profitability levels, by considering the past performance of the acquired business and current market forecasts, and whethersuch assumptions were consistent with evidence obtained in other areas of the audit. Product Revenue Allowances for Product Returns Description of the Matter As described in Note 2 to the consolidated financial statements, when recognizing revenue from product sales of Avenova Spray to the Company’s major distributionpartners, the Company makes an estimate of the amount of consideration the Company expects to be entitled to receive. Upon recognition of these product sales, theCompany records estimates for variable consideration consisting of service fees, discounts, rebates, and product returns, resulting in a reduction in product revenue.The variable consideration provisions are recorded within accrued liabilities and in the same period that the related revenue is recognized. Liabilities related to allowancefor product returns involve the use of significant assumptions and judgments in their calculation. These significant assumptions and judgments include historical salesand return rates and inventory levels in the distribution channel and utilizing existing return policies with customers. 29Table of Contents Management’s estimated allowance for product returns requires a high degree of judgment and is subject to change based on various quantitative and qualitativefactors. Accordingly, extensive audit effort and a high degree of auditor judgment were needed to evaluate management’s estimates and assumptions used in thedetermination of rebates and product returns. How We Addressed the Matter in Our Audit We obtained an understanding of and evaluated the design of controls relating to the Company’s processes for estimating product returns. We evaluated the significantaccounting policies relating to product returns, as well as management’s application of the policies, for appropriateness and reasonableness. To test management’s estimate of product returns, we obtained management’s calculations for the estimates and performed one or more of the following procedures:clerically tested the calculation, agreed relevant inputs to the terms of relevant policies, assessed subsequent events related to these estimates, evaluated themethodologies and assumptions used and the underlying data used by the Company, evaluated the assumptions used by management against historical trends,evaluated the change in estimated accruals from the prior periods, and assessed the historical accuracy of the Company’s estimates against actual results. /s WithumSmith+Brown, PC We have served as the Company's auditor since 2010. San Francisco CaliforniaMarch 29, 2022 PCAOB ID Number 100 30Table of Contents Report of Independent Registered Public Accounting Firm Stockholders and Board of DirectorsNovaBay Pharmaceuticals, Inc.Emeryville, California Opinion on the Consolidated Financial Statements We have audited the accompanying consolidated balance sheet of NovaBay Pharmaceuticals, Inc. (the “Company”) as of December 31, 2020, and the relatedconsolidated statements of operations and comprehensive loss, stockholders’ equity, and cash flows for each of the two years in the period ended December 31, 2020,and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in allmaterial respects, the financial position of the Company at December 31, 2020 and the results of its operations and its cash flows for each of the two years in the periodended December 31, 2020, in conformity with accounting principles generally accepted in the United States of America. Basis for Opinion These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’sconsolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States)(“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulationsof the Securities and Exchange Commission and the PCAOB. We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assuranceabout whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were weengaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control overfinancial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, weexpress no such opinion. Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, andperforming procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in theconsolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well asevaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion. /s/ OUM & CO. LLP We served as the Company's auditor since 2010. San Francisco, CaliforniaMarch 25, 2021 PCAOB ID Number 252 31Table of Contents NOVABAY PHARMACEUTICALS, INC.CONSOLIDATED BALANCE SHEETS(in thousands, except par value amounts) December 31, December 31, 2021 2020 ASSETS Current assets: Cash and cash equivalents $7,504 $11,952 Accounts receivable, net of allowance for doubtful accounts ($0 at December 31, 2021 and December 31,2020) 1,668 1,106 Inventory, net of allowance for excess and obsolete inventory and lower of cost or estimated net realizablevalue adjustments ($641 and $236 at December 31, 2021 and December 31, 2020, respectively) 3,220 608 Prepaid expenses and other current assets 778 576 Total current assets 13,170 14,242 Operating lease right-of-use assets 411 436 Property and equipment, net 193 84 Goodwill 4,528 — Other intangible assets, net 5,200 — Other assets 476 476 TOTAL ASSETS $23,978 $15,238 LIABILITIES AND STOCKHOLDERS' EQUITY Liabilities: Current liabilities: Accounts payable $1,045 $302 Accrued liabilities 2,092 2,115 Line of credit 105 — Operating lease liabilities 200 416 Total current liabilities 3,442 2,833 Operating lease liabilities-non-current 246 87 Warrant liability 9,558 — Contingent earnout liability 561 — Total liabilities 13,807 2,920 Commitments & contingencies (Note 10) Stockholders' equity: Preferred stock, $0.01 par value; 5,000 shares authorized; 14 and 0 issued and outstanding at December 31, 2021and December 31, 2020, respectively 680 — Common stock, $0.01 par value; 100,000 and 75,000 shares authorized, 47,766 and 41,782 shares issued andoutstanding at December 31, 2021 and December 31, 2020, respectively 478 418 Additional paid-in capital 150,900 147,963 Accumulated deficit (141,887) (136,063)Total stockholders' equity 10,171 12,318 TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $23,978 $15,238 The accompanying notes are an integral part of these consolidated financial statements. 32Table of Contents NOVABAY PHARMACEUTICALS, INC.CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS(in thousands except per share data) Year Ended December 31, 2021 2020 2019 Sales: Product revenue, net $8,397 $9,916 $6,556 Other revenue, net 24 18 43 Total sales, net 8,421 9,934 6,599 Cost of goods sold 2,776 3,970 1,738 Gross profit 5,645 5,964 4,861 Research and development 44 285 184 Sales and marketing 7,223 6,173 8,767 General and administrative 7,240 5,932 5,310 Total operating expenses 14,507 12,390 14,261 Operating loss (8,862) (6,426) (9,400) Non-cash gain (loss) on changes in fair value of warrant liability 4,615 (5,216) 749 Non-cash gain on changes in fair value of embedded derivative liability — 3 424 Other (expense) income, net (1,577) 605 (1,425) Loss before provision for income taxes (5,824) (11,034) (9,652)Provision for income taxes — (5) (6)Net loss and comprehensive loss $(5,824) $(11,039) $(9,658) Less: Preferred deemed dividend 735 — 800 Less: Retained earnings reduction related to warrants down round feature triggered — — 29 Net loss attributable to common stockholders $(6,559) $(11,039) $(10,487) Net loss per share attributable to common stockholders (basic and diluted) $(0.15) $(0.31) $(0.48)Weighted-average shares of common stock outstanding used in computing net loss pershare of common stock (basic and diluted) 43,657 35,076 21,641 The accompanying notes are an integral part of these consolidated financial statements. 33Table of Contents NOVABAY PHARMACEUTICALS, INC.CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY(in thousands) Additional Total Preferred Stock Common Stock Paid-In Accumulated Stockholders' Shares Amount Shares Amount Capital Deficit Equity Balance at December 31, 2018 — $— 17,089 $171 $119,764 $(114,981) $4,954 Net loss — — — — — (9,658) (9,658)Reclassification of warrant liability to equityrelated to adoption of ASU 2017-11 — — — — 412 (356) 56 Down round feature adjustment related towarrants — — — — 29 (29) — Issuance of Series A Preferred Stock and commonstock warrants, net of offering costs 2,700 584 — — — — — Conversion of Series A Preferred Stock to commonstock (2,700) (584) 2,700 27 557 — 584 Beneficial conversion feature upon issuance ofSeries A Preferred Stock — — — — 800 — 800 Deemed dividend from beneficial conversionfeature of Series A Preferred Stock — — — — (800) — (800)Issuance of common stock in connection withoffering, net of offering costs — — 7,467 75 3,427 — 3,502 Issuance of common stock in connection withexercise of warrants — — 389 4 616 — 620 Issuance of RSUs related to employee separationagreement — — 168 2 218 — 220 Issuance of common stock for option exercises — — 83 — 189 — 189 Issuance of RSUs to non-employees for services — — 36 — 20 — 20 Vesting of employee restricted stock awards — — 6 — 10 — 10 Stock-based compensation expense related toemployee and director stock options — — — — 334 — 334 employee and director stock options — — — — 334 — 334 Stock-based compensation expense related tonon-employee stock options — — — — 37 — 37 Stock option modification — — — — 105 — 105 Balance at December 31, 2019 — $— 27,938 $279 $125,718 $(125,024) $973 Net loss — — — — — (11,039) (11,039)Reclassification of warrant liability to equityrelated to warrant modification — — — — 197 — 197 Issuance of common stock, net of offering costs — — 5,838 58 5,162 — 5,220 Issuance of common stock in connection withexercise of warrants, net — — 7,791 78 16,128 — 16,206 Issuance of RSUs to non-employees for services — — 193 2 218 — 220 Issuance of stock for option exercises — — 20 1 6 — 7 Vesting of employee restricted stock awards — — 2 — 2 — 2 Stock-based compensation expense related toemployee and director stock options — — — — 415 — 415 Stock-based compensation expense related tonon-employee stock options — — — — 64 — 64 Stock option modification — — — — 53 — 53 Balance at December 31, 2020 — $— 41,782 $418 $147,963 $(136,063) $12,318 Net loss — — — — — (5,824) (5,824)Issuance of warrants in connection with TLFwarrants — — — — 13 — 13 Issuance of common stock, net of offering costs — — 2,673 27 1,749 — 1,776 Vesting of employee restricted stock awards — — 160 2 (2) — — Issuance of RSUs to non-employees for services — — 328 3 217 — 220 Issuance of Series B Preferred Stock and commonstock warrants, net of offering costs 15 735 — — — — 735 Conversion of Series B Preferred Stock to commonstock (1) (55) 2,823 28 27 — — Beneficial conversion feature upon Issuance ofSeries B Preferred Stock — — — — 735 — 735 Deemed dividend from beneficial Conversionfeature of Series B Preferred Stock — — — — (735) — (735) Stock-based compensation expense related toemployee and director stock options — — — — 693 — 693 Stock-based compensation expense related tonon-employee stock options — — — — 240 — 240 Balance at December 31, 2021 14 $680 47,766 $478 $150,900 $(141,887) $10,171 The accompanying notes are an integral part of these consolidated financial statements. 34Table of Contents NOVABAY PHARMACEUTICALS, INC.CONSOLIDATED STATEMENTS OF CASH FLOWS(in thousands) Year ended December 31, 2021 2020 2019 Operating activities: Net loss $(5,824) $(11,039) $(9,658)Adjustments to reconcile net loss to net cash used in operating activities: Depreciation and amortization 119 51 65 Gain from early operating lease termination — (54) — Impairment of property and equipment — — 32 Loss on disposal of property and equipment — 1 3 Impairment of operating lease right-of-use assets — — 125 Stock-based compensation expense for options and stock issued to employees and directors 693 415 334 Stock-based compensation expense for options and stock issued to non-employees 240 64 37 Stock option modification expense — 53 105 Issuance of RSUs to employees — 2 10 Issuance of RSUs related to employee separation agreement — — 220 Issuance of RSUs to non-employees for services 233 220 20 Non-cash (gain) loss on changes in fair value of warrant liability (4,615) 5,216 (749)Non-cash (gain) on changes in fair value of embedded derivative liability — (3) (424)Interest expense related to amortization of debt issuance and debt discount — 141 670 Interest expense related to amortization of debt issuance related to related party notepayable — 2 18 Issuance of warrants for services — — 59 Changes in operating assets and liabilities: Accounts receivable 452 (317) 2,319 Inventory (243) (116) (212)Prepaid expenses and other current assets (52) 310 888 Operating lease right-of-use assets 25 816 861 Other assets — 1 9 Accounts payable and accrued liabilities (163) (321) (1,841)Operating lease liabilities (57) (878) (1,066)Deferred rent — — — Related party note payable — 73 204 Long-term obligations — — 42 Net cash used in operating activities (9,192) (4,721) (7,929) Investing activities: Acquisition, net of cash (11,993) — — Purchases of property and equipment (52) (26) (19)Net cash used in investing activities (12,045) (26) (19) Financing activities: Proceeds from preferred stock issuances, net 14,908 — 2,598 Proceeds from common stock issuances, net 1,776 5,220 6,698 Proceeds from exercise of warrants — 7,098 67 Proceeds from exercise of options, net — 7 189 Proceeds from issuance of related party note payable — — 1,000 Proceeds from stock options & RSUs sold to cover taxes — — 4 Proceeds from convertible notes, net of discount — — 2,000 Proceeds from line of credit 105 — — Payment on the convertible note (Note 12) — (1,563) (652)Payment on the related party loan (Note 11) — (1,000) — Debt issuance cost — — (202)Net cash provided by financing activities 16,789 9,762 11,702 Net (decrease) increase in cash, cash equivalents, and restricted cash (4,448) 5,015 3,754 Cash, cash equivalents and restricted cash, beginning of year 12,427 7,412 3,658 Cash, cash equivalents and restricted cash, end of year $7,979 $12,427 $7,412 35Table of Contents Year ended December 31, 2021 2020 2019 Supplemental disclosure of cash flow information: Interest paid $— $49 $148 Income taxes paid $21 $14 $14 Year ended December 31, 2021 2020 2019 Supplemental disclosure of non-cash information: Warrant liability transferred to equity in connection with exercise of warrants $— $9,108 $553 Warrant liability transferred to equity related to warrant modification $— $197 $— Non-cash payment of related party loan accrued interest by offsetting related party accountsreceivables - see Note 11 $— $277 $— Cumulative effect of adoption of ASU 2017-11 $— $— $56 Addition of operating lease, right-of-use asset $376 $— $2,473 Fixed asset purchases, included in accounts payable and accrued liabilities $— $— $10 Fair value of warrants issued in connection with financings $14,172 $— $5,269 Conversion of preferred stock to common stock $55 $— $584 Reclassification of EmeryStation lease security deposit from long term to short term $— $— $65 Reclassification of EmeryStation sublease security deposit from long term to short term $— $— $198 The accompanying notes are an integral part of these consolidated financial statements. 36Table of Contents NOVABAY PHARMACEUTICALS, INC.NOTES TO CONSOLIDATED FINANCIAL STATEMENTS NOTE 1. ORGANIZATION NovaBay Pharmaceuticals, Inc. develops and sells scientifically-created and clinically-proven eyecare and skincare products. Our leading product, Avenova®Antimicrobial Lid and Lash Solution (“Avenova Spray”), is proven in laboratory testing to have broad antimicrobial properties as it removes foreign material includingmicroorganisms and debris from the skin around the eye, including the eyelid. Avenova Spray is formulated with our proprietary, stable and pure form of hypochlorousacid and is cleared by the U.S. Food and Drug Administration (“FDA”) for sale in the United States. Avenova Spray is available direct to consumers through onlinedistribution channels and is also often prescribed and dispensed by eyecare professionals for blepharitis and dry-eye disease. Other eyecare products offered under theAvenova eyecare brand include Novawipes by Avenova, Avenova Lubricant Eye Drops, Avenova Moist Heating Eye Compress, and the i-Chek. On November 5, 2021, we significantly expanded our business by acquiring DERMAdoctor, LLC (“DERMAdoctor”) (the “DERMAdoctor Acquisition”). DERMAdoctoroffers over 30 dermatologist-developed products targeting common skin concerns, ranging from aging and blemishes to dry skin, perspiration and keratosis pilaris.DERMAdoctor branded products are marketed and sold through the DERMAdoctor website, well-known traditional and digital beauty retailers, and a network ofinternational distributors. See Note 3, “Business Combination” below. The Company was incorporated under the laws of the State of California on January 19, 2000, as NovaCal Pharmaceuticals, Inc. It had no operations until July 1, 2002, onwhich date it acquired all of the operating assets of NovaCal Pharmaceuticals, LLC, a California limited liability company. In February 2007, it changed its name fromNovaCal Pharmaceuticals, Inc. to NovaBay Pharmaceuticals, Inc. In June 2010, the Company changed the state in which it was incorporated (the “Reincorporation”) andis now incorporated under the laws of the State of Delaware. All references to “the Company” herein refer to the California corporation prior to the date of theReincorporation and to the Delaware corporation on and after the date of the Reincorporation. The Company is managed as a single segment focused oncommercializing Avenova Spray in the United States. Liquidity Based primarily on the funds available at December 31, 2021, management believes that the Company’s existing cash and cash equivalents and cash flows generatedfrom product sales will be sufficient to enable the Company to meet its planned operating expenses at least through March 29, 2023. However, changing circumstancesmay cause the Company to expend cash significantly faster than currently anticipated, and the Company may need to spend more cash than currently expected becauseof circumstances beyond its control. Additionally, our future results, cash expenditures and ability to obtain additional external financing could be adversely affected bythe COVID-19 pandemic and general adverse economic conditions. NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Basis of Presentation The accompanying consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States ("U.S.GAAP") and are expressed in U.S. dollars. Use of Estimates The preparation of financial statements in accordance with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported in thefinancial statements and accompanying notes. These estimates include contract liabilities related to product sales, useful lives for property and equipment and relateddepreciation calculations, assumptions for valuing options and warrants, the fair value of contingent consideration, intangible assets, and goodwill, stock-basedcompensation, income taxes and other contingencies These estimates are based on management’s best estimates and judgment. Actual results may differ from these estimates. Estimates, judgments, and assumptions arecontinuously evaluated and are based on management’s experience and other factors, including expectations of future events that are believed to be reasonable underthe circumstances. Uncertainty about these assumptions, judgments and estimates could result in outcomes that require a material adjustment to the carrying amount ofassets or liabilities affected in future periods. Cash, Cash Equivalents, and Restricted Cash The Company considers all highly-liquid instruments with a stated maturity of three months or less at the date of purchase to be cash equivalents. Cash and cashequivalents are stated at cost, which approximates fair value. As of December 31, 2021 and 2020, the Company’s cash and cash equivalents were held in a highly-rated,major financial institution in the United States. 37Table of Contents The following table provides a reconciliation of the cash, cash equivalents, and restricted cash reported in the consolidated balance sheets that sum to the total of thesame reported in the consolidated statements of cash flows (in thousands): December 31, December 31, 2021 2020 Cash and cash equivalents $7,504 $11,952 Restricted cash included in other assets 475 475 Total cash, cash equivalents, and restricted cash in the consolidated statements of cash flows $7,979 $12,427 The restricted cash amount included in other assets on the consolidated balance sheets represents amounts held as certificates of deposit for long-term financing andlease arrangements as contractually required by our financial institution and landlord. Concentrations of Credit Risk and Major Partners Financial instruments that potentially subject us to significant concentrations of credit risk consist primarily of cash, cash equivalents and restricted cash. The Companymaintains deposits of cash, cash equivalents and restricted cash with a highly-rated, major financial institution in the United States. Deposits in this bank may exceed the amount of federal insurance provided on such deposits. The Company does not believe it is exposed to significant credit risk dueto the financial position of the financial institution in which the deposits are held. During the year ended December 31, 2021, revenues were derived primarily from sales of Avenova Spray directly to doctors through the Company’s webstore, directly toconsumers through Amazon.com, national retailers and to pharmacies via three major distribution partners and specialty pharmacies. During the year ended December31, 2020, revenues were derived primarily from sales of Avenova Spray directly to three major distribution partners, to doctors through the Company's internal salesteam, and also generated revenue from the sale of KN95 Masks in response to the national need for personal protective equipment. During the years ended December 31, 2021, 2020 and 2019, revenues from each product were as follows (in thousands): Year Ended December 31, 2021 2020 2019 Avenova Spray $6,844 $5,974 $6,347 DERMAdoctor 587 — — KN95 Masks — 3,124 — NeutroPhase 368 524 209 Other products 598 294 — Total product revenue, net 8,397 9,916 6,556 Other revenue, net 24 18 43 Total sales, net $8,421 $9,934 $6,599 38Table of Contents During the years ended December 31, 2021, 2020 and 2019, Avenova Spray revenues from our major distribution partners greater than 10% were as follows: Year Ended December 31, Major distribution 2021 2020 2019 Avenova Direct via Amazon 59% 50% 15%Avenova distributor A *% *% 17%Avenova distributor B *% *% 16%Avenova distributor C *% *% 15% *Not greater than 10% As of December 31, 2021 and 2020, accounts receivable from our major distribution partners and major retailers greater than 10% were as follows: Year Ended December 31, Major distribution partner 2021 2020 Major U.S. Retailer 33% *%Avenova Spray Pharmacy Distributor A 13% 18%Avenova Spray Pharmacy Distributor C 11% 14%Chongqing Pioneer Pharma Holdings Limited *% 16%Avenova Spray Pharmacy Distributor B *% 14%Amazon *% 11% *Not greater than 10% The Company relies on seven contract manufacturers to produce its products. The Company does not own any manufacturing facilities and intends to continue to relyon third parties for the supply of finished goods. Contract manufacturers may or may not be able to meet the Company’s needs with respect to timing, quantity orquality. In particular, it is possible that we may suffer from unexpected supply chain delays in light of the worldwide COVID-19 pandemic. Fair Value of Financial Assets and Liabilities The Company’s financial instruments include cash and cash equivalents, restricted cash, accounts receivable, accounts payable, accrued liabilities, and contingentconsideration. The Company’s cash and cash equivalents, accounts receivable, accounts payable, and accrued liabilities are carried at cost, which management believesapproximates fair value due to the short-term nature of these instruments. The Company follows Accounting Standards Codification (“ASC”) 820, Fair Value Measurements and Disclosures, with respect to assets and liabilities that aremeasured at fair value on a recurring basis and nonrecurring basis. Under this standard, fair value is defined as the exit price, or the amount that would be received tosell an asset or paid to transfer a liability in an orderly transaction between market participants as of the measurement date. The standard also establishes a hierarchy forinputs used in measuring fair value that maximizes the use of observable inputs and minimizes the use of unobservable inputs by requiring that the most observableinputs be used when available. Observable inputs are inputs market participants would use in valuing the asset or liability developed based on market data obtainedfrom sources independent of the Company. Unobservable inputs are inputs that reflect the Company’s assumptions about the factors market participants would use invaluing the asset or liability developed based upon the best information available in the circumstances. There are three levels of inputs that may be used to measure fairvalue: Level 1 – quoted prices in active markets for identical assets or liabilities;Level 2 – quoted prices for similar assets and liabilities in active markets or inputs that are observable; andLevel 3 – inputs that are unobservable (for example, cash flow modeling inputs based on assumptions). Categorization within the valuation hierarchy is based upon the lowest level of input that is significant to the fair value measurement. Allowance for Doubtful Accounts The Company charges bad debt expense and records an allowance for doubtful accounts when management believes it to be unlikely that specific invoices will becollected. Management identifies amounts due that are in dispute and believes are unlikely to be collected. Management recorded no reserve for accounts receivable atDecember 31, 2021 and December 31, 2020. 39Table of Contents Inventory Inventory is comprised of (1) raw materials and supplies, such as bottles, packaging materials, labels, boxes and pumps; (2) goods in progress, which are normally filledbut unlabeled bottles; and (3) finished goods. We utilize contract manufacturers to produce our products and the price paid to these manufacturers is included ininventory. Inventory is stated at the lower of cost or estimated net realizable value determined by the first-in, first-out method. At December 31, 2021 and 2020,management had recorded an allowance for excess and obsolete inventory and lower of cost or estimated net realizable value adjustments of $641 thousand and $236thousand, respectively. Property and Equipment, net Property and equipment are stated at cost, less accumulated depreciation and amortization. Depreciation is calculated using the straight-line method over the estimateduseful lives of the related assets of five to seven years for office and laboratory equipment, three to five years for computer equipment and software, and five to sevenyears for furniture and fixtures. Leasehold improvements are amortized over the lease term. The costs of normal maintenance, repairs, and minor replacements are expensed as incurred. Business Combinations We account for business combinations using the acquisition method of accounting, in accordance with ASC 805, Business Combinations. The acquisition methodrequires identifiable assets acquired and liabilities assumed be recognized and measured at fair value on the acquisition date, which is the date that the acquirer obtainscontrol of the acquired business. The amount by which the fair value of consideration transferred as the purchase price exceeds the net fair value of assets acquired andliabilities assumed is recorded as goodwill. The determination of estimated fair value requires us to make significant estimates and assumptions. These fair value determinations require judgment and involve theuse of significant estimates and assumptions, including assumptions with respect to future cash inflows and outflows, discount rates, and asset lives, among otheritems. As a result, we may record adjustments to the fair values of assets acquired and liabilities assumed within the measurement period (up to one year from theacquisition date) with the corresponding offset to goodwill. Transaction costs associated with business combinations are expensed as they are incurred. Goodwill and Intangible Assets Goodwill represents the excess of the consideration transferred over the estimated fair value of assets acquired and liabilities assumed in a business combination.Intangible assets are measured at their respective fair values as of the acquisition date and may be subject to adjustment within the measurement period, which may beup to one year from the acquisition date. Goodwill and indefinite-lived intangible assets are tested for impairment annually, or more frequently if events or changes incircumstances indicate that it is more likely than not that the assets are impaired. There were no impairment charges during the years ended December 31, 2021 and 2020,respectively. Intangible Asset Fair Value (inthousands) Useful Life(in years) Amortization Method Customer relationships $290 7 Straight line Trade secrets / product formulations 2,890 9 Straight line Trade names 2,080 Indefinite N/A Goodwill 4,528 Indefinite N/A $9,788 Valuation of Contingent Consideration Resulting from a Business Combination In connection with certain acquisitions, we may be required to pay future consideration that is contingent upon the achievement of specified milestone events. Werecord contingent consideration resulting from a business combination at its fair value on the acquisition date. Each quarter thereafter, we revalue these obligations andrecord increases or decreases in their fair value within our Statement of Income until such time as the specified milestone achievement period is complete. Increases or decreases in fair value of the contingent consideration liabilities can result from updates to assumptions such as the expected timing or probability ofachieving the specified milestones. Significant judgment is employed in determining these assumptions as of the acquisition date and for each subsequent period.Updates to assumptions could have a significant impact on our results of operations in any given period. Actual results may differ from estimates. Impairment of Long-Lived Assets The Company accounts for long-lived assets, other than goodwill and intangible assets, and operating lease right-of-use assets in accordance with ASC 360, Property,Plant and Equipment, which requires that companies consider whether events or changes in facts and circumstances, both internally and externally, may indicate thatan impairment of long-lived assets held for use or right-of-use assets are present. The Company reviews long-lived assets and right-of-use assets for impairment at leastannually or whenever events or changes in business circumstances indicate that the carrying amount of the assets may not be fully recoverable or that the useful livesof these assets are no longer appropriate. Determination of recoverability is based on an estimate of undiscounted future cash flows resulting from the use of the assetand its eventual disposition. In the event that such cash flows are not expected to be sufficient to recover the carrying amount of the asset, the assets are written downto their estimated fair values and the loss is recognized in the statements of operations. There were no impairment charges during the years ended December 31, 2021and 2020, respectively. 40Table of Contents Leases At the inception of an arrangement, the Company determines whether the arrangement is or contains a lease based on the unique facts and circumstances present.Operating lease liabilities and their corresponding right-of-use assets are recorded based on the present value of lease payments over the expected lease term. Theinterest rate implicit in lease contracts is typically not readily determinable. As such, the Company utilizes its incremental borrowing rate, which is the rate incurred toborrow, on a collateralized basis over a similar term, an amount equal to the lease payments in a similar economic environment. Certain adjustments to the right-of-useassets may be required for items such as initial direct costs paid or incentives received. The Company has elected to combine lease and non-lease components as a single component for all leases in which it is a lessee or a lessor. The lease expense isrecognized over the expected term on a straight-line basis. Operating leases are recognized on the balance sheet as right-of-use assets, operating lease liabilities currentand operating lease liabilities non-current. Comprehensive Income (Loss) ASC 220, Comprehensive Income, requires that an entity's change in equity or net assets during a period from transactions and other events from non-owner sources bereported. Revenue Recognition Revenue is recognized from sale of goods in accordance with ASC 606, Revenue from Contracts with Customers (“ASC 606”). Under ASC 606, the Company recognizesrevenue when or as the Company’s performance obligations are satisfied by transferring control of the promised goods to customers in an amount that reflects theconsideration to which the Company expects to receive. To determine revenue recognition for arrangements that an entity determines are within the scope of ASC 606,the Company performs the following five steps as prescribed by ASC 606: i.identify the contract(s) with a customer; ii.identify the performance obligations in the contract; iii.determine the transaction price; iv.allocate the transaction price to the performance obligations in the contract; and v.recognize revenue when (or as) the entity satisfies performance obligations. Revenue is generated through the Company’s webstores, Avenova.com and DERMAdoctor.com, for Avenova Spray and DERMAdoctor direct to consumer sales whichare recognized upon fulfillment, which generally occurs upon delivery of the related products to a third-party carrier. Shipping and handling costs are expensed asincurred and included in cost of goods sold in the consolidated statements of operations and comprehensive loss. We present revenue net of sales taxes and refunds. Revenue generated through Amazon.com and Walmart.com is recognized upon fulfillment, which generally occurs upon delivery of the related products to a third-partycarrier. We present revenue net of commissions and any related fulfillment and shipping fees charged by these partners. Fees paid to partners for promoting ourproducts are expensed as incurred and are included in sales and marketing expenses within the operating expenses in the consolidated statements of operations andcomprehensive loss. The Company also generates Avenova Spray revenue through major pharmacy distribution partners. Product supply of Avenova Spray is the only performanceobligation contained in these arrangements, and the Company recognizes product revenue upon transfer of control to its major distribution partners at the amount ofconsideration that the Company expects to be entitled to, generally upon delivery to the distributor on a “sell-in” basis. Upon recognition of product sales, contractliabilities are recorded for invoiced amounts that are subject to significant reversal, including product revenue allowances for cash consideration paid to customers forservices, discounts, rebate programs, and product returns. The Company derives its rate of return from historical data and updates its return rate assumption quarterly.Payment for product supply is typically due 30 days after control transfers to the distributor. Revenue generated through the Company’s partner pharmacies is recognized when control of the product transfers to the end customer. Revenue for product sales to other retailers, such as Costco and CVS, is generally recognized upon transfer of control to the retailer, which generally occurs upondelivery of the related products to a third-party carrier, net of estimated future product returns. 41Table of Contents Cost of Goods Sold Cost of goods sold includes third-party manufacturing costs, shipping and handling costs, and other costs associated with products sold. Cost of goods sold alsoincludes any necessary allowance for excess and obsolete inventory along with lower of cost and estimated net realizable value. Research and Development Costs The Company charges research and development costs to expense as incurred. These costs include all costs associated with research, development and regulatoryactivities, including submissions to the Food and Drug Administration (“FDA”). Patent Costs Patent costs, including legal expenses, are expensed in the period in which they are incurred. Patent expenses are included in general and administrative expenses in theconsolidated statements of operations and comprehensive loss. Advertising Costs Advertising costs are expensed in the period in which the costs are incurred. Advertising expenses were $3.2 million, $1.7 million, and $0.5 million, respectively, for theyears ended December 31, 2021, 2020, and 2019. Stock-Based Compensation The Company’s stock-based compensation includes grants of stock options and restricted stock units (“RSUs”) to employees, consultants and non-employee directors.The expense associated with these grants is recognized in the Company’s consolidated statements of stockholders’ equity based on their fair values as they are earnedunder the applicable vesting terms. For stock options granted, the fair value of the stock options is estimated using a Black-Scholes option pricing model. See Note 15,“Equity-Based Compensation” for further information regarding stock-based compensation expense and the assumptions used in estimating that expense. TheCompany accounts for RSUs issued to employees and non-employees (consultants and advisory board members) based on the fair market value of the Company’scommon stock as of the date of issuance. Income Taxes The Company accounts for income taxes under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequencesattributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and taxcredit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporarydifferences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period thatincludes the enactment date. A valuation allowance is recognized if it is more likely than not that some portion or the entire deferred tax asset will not be recognized. 42Table of Contents Common Stock Warrant Liabilities The Company accounts for common stock purchase warrants issued in connection with its equity offerings in accordance with the provisions of ASC 480,Distinguishing Liabilities from Equity, and ASC 815, Derivatives and Hedging. The Company accounts for common stock purchase warrants issued in connection with share-based compensation arrangements in accordance with the provisions ofASC 718, Stock Compensation, which encompasses the provisions of ASC 480, Distinguishing Liabilities from Equity. The Company classifies as equity any contracts that (i) require physical settlement or net-share settlement or (ii) give the Company a choice of net-cash settlement orsettlement in its own shares (physical settlement or net-share settlement). The Company classifies as assets or liabilities any contracts that (i) require net-cashsettlement (including a requirement to net-cash settle the contract if an event occurs and if that event is outside the control of the Company), (ii) give the counterparty achoice of net-cash settlement or settlement in shares (physical settlement or net-share settlement) or (iii) do not become exercisable until the occurrence of contingentevent. Additionally, for common stock purchase warrants accounted for in accordance with ASC 718, Stock Compensation, the Company classifies as liabilities anycontracts where it believes the warrants are deemed to be probable of issuance. For warrants that are classified as liabilities, the Company records the fair value of the warrants at each balance sheet date and records changes in the estimated fairvalue as a non-cash gain or loss in the consolidated statements of operations and comprehensive loss. The fair values of these warrants are determined using the Black-Scholes option pricing model, the Binomial Lattice (“Lattice”) valuation model, or the Monte Carlo simulation model where deemed appropriate. These values are subjectto a significant degree of management’s judgment. Net Loss per Share The Company computes net loss per share by presenting both basic and diluted earnings (loss) per share (“EPS”). Basic EPS is computed by dividing net loss available to common shareholders by the weighted average number of common shares outstanding during the period.Diluted EPS gives effect to all dilutive potential common shares outstanding during the period, including stock options and warrants, using the treasury stock method.In computing diluted EPS, the average stock price for the period is used to determine the number of shares assumed to be purchased from the exercise of stock optionsor warrants. Potentially dilutive common share equivalents are excluded from the diluted EPS computation in net loss periods because their effect would be anti-dilutive. For the year ended December 31, 2021, the Preferred Stock was excluded from the computation of diluted net income per share as their inclusion on an “if converted”basis would have been anti-dilutive. For the year ended December 31, 2021, the Preferred Stock was considered anti-dilutive as a result of such securities not having acontractual obligation to participate in losses of the Company. 43Table of Contents The following table sets forth the calculation of basic EPS and diluted EPS (in thousands, except per share amounts): Year Ended December 31, 2021 2020 2019 Numerator Net loss $(5,824) $(11,039) $(9,658)Less: Preferred deemed dividend 735 — 800 Less: Retained earnings reduction related to warrants down round feature triggered — — 29 Net loss attributable to common stockholders, basic and diluted $(6,559) $(11,039) $(10,487) Denominator Weighted average shares outstanding, basic and diluted 43,657 35,076 21,641 Net loss per share, basic and diluted $(0.15) $(0.31) $(0.48) The following outstanding stock options and stock warrants were excluded from the diluted EPS computation as their effect would have been anti-dilutive (inthousands): Year Ended December 31, 2021 2020 2019 Stock options 4,449 3,165 2,183 Stock warrants 7,082 7,067 8,588 11,531 10,232 10,771 Recent Accounting Pronouncements In August 2018, the FASB issued ASU 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework - Changes to the Disclosure Requirements for Fair ValueMeasurement (“ASU 2018-13”). ASU 2018-13 improved the effectiveness of disclosure requirements for recurring and nonrecurring fair value measurements. Thestandard removes, modifies, and adds certain disclosure requirements. The Company adopted the new standard effective January 1, 2020, and the adoption of thisguidance did not have a material impact on our consolidated financial statements. In June 2016, the FASB issued ASU 2016-13, Financial Instruments—Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments (“ASU 2016-13”). The amendments in ASU 2016-13 require a financial asset (or a group of financial assets) measured at amortized cost basis to be presented at the net amountexpected to be collected. ASU 2016-13 is effective for the Company for annual and interim reporting periods beginning January 1, 2023. The Company will adopt the newstandard effective January 1, 2023. We are currently evaluating the impact of the new guidance on our consolidated financial statements. In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes, which simplifies the accounting for incometaxes. The Company adopted the new standard effective January 1, 2021, and the adoption of this guidance did not have a material impact on our consolidated financialstatements. In August 2020, FASB issued ASU 2020-06, Debt—Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging—Contracts in Entity’sOwn Equity (Subtopic 815-40): Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity (“ASU 2020-06”). ASU 2020-06 simplifies theaccounting for convertible instruments by removing the separation models for (1) convertible debt with a cash conversion feature and (2) convertible instruments with abeneficial conversion feature. As a result, a convertible debt instrument will be accounted for as a single liability measured at its amortized cost. ASU 2020-06 alsorequires the application of the if-converted method for calculating diluted earnings per share and the treasury stock method will be no longer available. The newguidance is effective for fiscal years beginning after December 15, 2021, with early adoption permitted no earlier than fiscal years beginning after December 15, 2020.ASU 2020-06 is effective for the Company in our first quarter of fiscal 2022. The Company adopted the new standard effective January 1, 2022, and the adoption of thisguidance is not expected to have a material impact on our consolidated financial statements. 44Table of Contents NOTE 3. BUSINESS COMBINATION On November 5, 2021, the Company completed the DERMAdoctor Acquisition. Pursuant to the Acquisition Purchase Agreement, NovaBay acquired 100% of themembership units of DERMAdoctor from the Sellers for a closing purchase price of $12.0 million and potential future earn out payments of up to an aggregate of $3.0million over a period of two calendar years post-closing. The following pro forma financial information is based on the historical financial statements of the Companyand presents the Company’s results as if the business combination had occurred as of January 1, 2020 (in thousands): Unaudited Pro Forma Year Ended December 31, 2021 2020 Revenue $12,767 $18,170 Net Profit (Loss) $(4,918) $(11,647) The pro forma financial information is not indicative of the results of operations that the Company would have attained had the business combination occurred as ofJanuary 1, 2020, nor is the pro forma financial information indicative of the results of operations that may occur in the future. The unaudited pro forma informationincludes adjustments to reflect the $1.2 million of transaction costs as if they were incurred in the year ended December 31, 2020. The Company funded the closing purchase price in part through the 2021 Private Placement (See Note 14, “Stockholders’ Equity”). The Acquisition is accounted for as a business combination in accordance to ASC 805, Business Combinations, which requires that the assets acquired and liabilitiesassumed be recognized at their estimated fair values as of the Acquisition Closing. Goodwill represents the excess of the consideration transferred over the estimatedfair value of assets acquired and liabilities assumed in a business combination. The following table sets forth the final allocation of the purchase price for the DERMAdoctor Acquisition to the fair value of the identifiable tangible and intangibleassets acquired and liabilities assumed from DERMAdoctor (in thousands): Fair Value Tangible net assets and liabilities: Cash and cash equivalents $12 Accounts receivable, net of allowance for doubtful accounts 1,015 Inventory, net of allowance 2,369 Prepaid expenses and other current assets 150 Property and equipment, net 62 Other intangible assets 54 Accounts payable (200)Accrued liabilities (683)Total net assets 2,779 Intangible Assets: Customer relationships 290 Trade secrets / product formulations 2,890 Trade names 2,080 Total intangible assets 5,260 Net assets acquired 8,039 Purchased consideration 12,561 Goodwill $4,528 Goodwill is primarily attributable to assembled workforce, expected synergies and other factors. The fair values of the identifiable intangible assets acquired at the date of the DERMAdoctor Acquisition are as follows (in thousands): Intangible Asset Fair Value Useful Life(in years) Amortization Method Customer relationships $290 7 Straight line Trade secrets / product formulations 2,890 9 Straight line Trade names 2,080 Indefinite N/A Goodwill 4,528 Indefinite N/A $9,788 45Table of Contents The valuations of intangible assets incorporate significant unobservable inputs and require significant judgment and estimates, including the amount and timing offuture cash flows. The Company recognized approximately $1.2 million of transaction costs in the year ended December 31, 2021. These costs are recorded in “General and administrativeexpense” in the consolidated statements of operations and comprehensive loss. The Company’s management reviews financial results and manages the business on an aggregate basis in accordance with ASC 280. Therefore, financial results arereported in two operating segments: (1) Optical & Wound Care and (2) Skincare (See Note 21, “Segment Reporting” below). NOTE 4. FAIR VALUE MEASUREMENTS The Company follows ASC 820, Fair Value Measurements and Disclosures, with respect to assets and liabilities that are measured at fair value on a recurring basis andnonrecurring basis. Under this standard, fair value is defined as the exit price, or the amount that would be received to sell an asset or paid to transfer a liability in anorderly transaction between market participants as of the measurement date. The Company’s cash equivalents are classified within Level 1 of the fair value hierarchy because they are valued using quoted market prices in active markets, broker ordealer quotations, or alternative pricing sources with reasonable levels of price transparency. The types of investments that are generally classified within Level 1 of thefair value hierarchy include money market securities and certificates of deposit. As of December 31, 2021, the 2021 Warrants are classified within Level 3 of the fair value hierarchy as liabilities (see Note 13, “Warrant Liability” and Note 14,“Stockholders’ Equity”). As of December 31, 2020, there were no warrants outstanding that were classified as liabilities. The Company’s outstanding warrants on December 31, 2020 consisted ofthe 2019 Domestic Warrants, 2019 Foreign Warrants and the 2019 Ladenburg Warrants, all of which were classified as equity. The 2019 Domestic Warrants and the 2019Foreign Warrants were amended and exercised in July 2020 (see Note 14, “Stockholders’ Equity”), resulting in a decrease of $9.1 million in warrant liability. The 2019Ladenburg Warrants were also amended in July 2020 (see Note 14, “Stockholders’ Equity”), resulting in a decrease of $0.2 million in warrant liability. The embedded derivative liability related to the Convertible Note (as defined below) was fully settled in September 2020. See Note 12, “Convertible Note” for furtherdiscussion of the settlement of the Convertible Note and embedded derivative liability during the third quarter of 2020. The following table presents the Company's assets measured at fair value on a recurring basis as of December 31, 2021 (in thousands): Fair Value Measurements Using Balance at Quoted Pricesin Significant Significant December 31, Active Markets Other Unobservable 2021 for Identical Observable Inputs Items Inputs (Level 3) (Level 1) (Level 2) Assets Restricted cash held as a certificate of deposit $324 $324 $— $— Deposit held as a certificate of deposit 151 151 — — Total assets $475 $475 $— $— Liabilities Warrant liability $9,558 — — $9,558 Contingent earnout liability 561 — — 561 Total liabilities $10,119 $— $— $10,119 46Table of Contents The following table presents the Company's assets measured at fair value on a recurring basis as of December 31, 2020 (in thousands): Fair Value Measurements Using Balance at Quoted Pricesin Significant Significant December 31, Active Markets Other Unobservable 2020 for Identical Observable Inputs Items Inputs (Level 3) (Level 1) (Level 2) Assets Restricted cash held as a certificate of deposit $324 $324 $— $— Deposit held as a certificate of deposit 151 151 — — Total assets $475 $475 $— $— There were no liabilities measured at fair value on a recurring basis as of December 31, 2020. The following is a reconciliation of the beginning and ending balances for the liabilities measured at fair value on a recurring basis using significant unobservable inputs(Level 3) during the year ended December 31, 2021 (in thousands): Fair value of warrant liability at December 31, 2020 $— Fair value of 2021 Warrants issued 14,172 Decrease in fair value of 2021 Warrants (4,614)Fair value of warrant liability at December 31, 2021 $9,558 The following is a reconciliation of the beginning and ending balances for the liabilities measured at fair value on a recurring basis using significant unobservable inputs(Level 3) during the year ended December 31, 2020 (in thousands): Fair value of warrant liability and embedded derivative liability at December 31, 2019 $4,092 Increase in fair value of warrant liability 5,238 Decrease in fair value of embedded derivative liability (2)Decrease in fair value related to warrants expired (22)Fair value of warrant liability transferred to equity upon exercise (9,108)Fair value of 2019 Ladenburg Warrant liability transferred to equity upon warrant modification (197)Elimination of embedded derivative liability upon settlement of convertible note (1)Fair value of warrant liability and embedded derivative liability at December 31, 2020 $— NOTE 5. PREPAID EXPENSES AND OTHER CURRENT ASSETS Prepaid expenses and other current assets consisted of the following (in thousands): December 31, December 31, 2021 2020 Prepaid inventory $368 $— Prepaid insurance 138 165 Prepaid consulting services 68 — Prepaid sales rebates 19 144 Prepaid security deposit for lease — 65 Prepaid dues and subscription 18 53 Prepaid rent 14 — Prepaid patents 9 47 Other 144 102 Total prepaid expenses and other current assets $778 $576 47Table of Contents NOTE 6. INVENTORY Inventory consisted of the following (in thousands): December 31, December 31, 2021 2020 Raw materials and supplies $1,179 $159 Finished goods 2,682 685 Less: Reserve for excess and obsolete inventory (641) (236)Total inventory, net $3,220 $608 NOTE 7. PROPERTY AND EQUIPMENT Property and equipment consisted of the following (in thousands): December 31, December 31, 2021 2020 Office and laboratory equipment $20 $20 Furniture and fixtures 157 157 Computer equipment and software 464 365 Production equipment 114 65 Leasehold improvements 79 79 Total property and equipment, at cost 834 686 Less: accumulated depreciation and amortization (641) (602)Total property and equipment, net $193 $84 Depreciation and amortization expense was $59 thousand, $51 thousand, and $65 thousand for the years ended December 31, 2021, 2020 and 2019, respectively. During the years ended December 31, 2021 and 2020, the Company disposed of damaged, unusable and fully depreciated property and equipment with cost ofapproximately $12 thousand and $10 thousand, respectively. As a result, the Company recognized an immaterial loss on the disposal of these assets in the consolidatedstatements of operation and comprehensive loss for such periods. 48Table of Contents NOTE 8. ACCRUED LIABILITIES Accrued liabilities consisted of the following (in thousands): December 31, December 31, 2021 2020 Contract liabilities (see Note 16) $1,289 $730 Employee payroll and benefits 443 632 Sublease security deposit — 198 Inventory purchases — 181 Consulting service — 98 Other 360 276 Total accrued liabilities $2,092 $2,115 NOTE 9. LINE OF CREDIT At the time of the DERMAdoctor Acquisition, DERMAdoctor had a line of credit agreement with Bank Midwest for $500 thousand. There was no balance outstandingon the line of credit at the time of Acquisition Closing. The agreement was terminated and repaid in full subsequent to December 31, 2021 on January 6, 2022. The linehad an interest rate equal to the Wall Street Journal Prime Rate plus 1.50% with a floor of 5.00% on December 31, 2021. All borrowings were collateralized bysubstantially all assets of DERMAdoctor. As of December 31, 2021, the Company had $105 thousand outstanding on the line of credit. NOTE 10. COMMITMENTS AND CONTINGENCIES Indemnification Agreements As permitted under Delaware law and in accordance with its bylaws, the Company indemnifies its officers and directors for certain events or occurrences while theofficer or director is or was serving at the Company’s request in such capacity. The term of the indemnification period is for the officer’s or director’s lifetime. Themaximum amount of potential future indemnification is unlimited; however, the Company has a director and officer insurance policy that limits its exposure and mayenable it to recover a portion of any future payments. The Company believes the fair value of these indemnification agreements is minimal. Accordingly, it has notrecorded any liabilities for these agreements as of December 31, 2021. In the normal course of business, the Company provides indemnification of varying scope under its agreements with other companies, typically its clinical researchorganizations, investigators, clinical sites, suppliers, and others. Pursuant to these agreements, it generally indemnifies, holds harmless, and agrees to reimburse theindemnified parties for losses suffered or incurred by the indemnified parties in connection with the use or testing of its products or product candidates or with any U.S.patent or any copyright or other intellectual property infringement claims by any third party with respect to its products. The term of these indemnification agreements isgenerally perpetual. The potential future payments the Company could be required to make under these indemnification agreements is unlimited. Historically, costsrelated to these indemnification provisions have been immaterial. The Company also maintains various liability insurance policies that limit its exposure. As a result, itbelieves the fair value of these indemnification agreements is minimal. Accordingly, the Company has not recorded any liabilities for these agreements as of December31, 2021. Legal Matters As of December 31, 2021, there were no other matters that, in the opinion of management, would ultimately result in liability that would have a material adverse effect onthe Company’s financial position, results of operations or cash flows. Leases The Company leases office space for its corporate headquarters located in Emeryville, California. The initial lease term is through February 28, 2022. The Company hasthe option to extend the term of the lease for one five (5)-year period upon written notice to the landlord. Subsequent to December 31, 2021, on January 19, 2022, theCompany amended the lease to extend the term through July 31, 2027 (see Note 22, “Subsequent Events”). We are also party to a lease for 19,136 square feet of space located in Riverside, Missouri, which we utilize for light manufacturing, storage, distribution of products andadministrative functions. The lease commenced on October 1, 2019 and expires on December 31, 2024. The Company also had a lease commitment for laboratory facilities and office space at EmeryStation North in Emeryville, California (“EmeryStation”) under an operatinglease. In July 2016, the Company subleased the EmeryStation space (the “Sublease Agreement”). The Sublease Agreement commenced September 8, 2016. TheEmeryStation lease and Sublease Agreement were terminated as of August 31, 2020 pursuant to a sublease termination agreement executed on July 31, 2020. Inconjunction with the termination, the Company recognized a gain of $54 thousand which is recorded within the operating expenses in the Company’s consolidatedstatements of operations and comprehensive loss for the year ended December 31, 2020. 49Table of Contents In calculating the present value of the lease payments, the Company has elected to utilize its incremental borrowing rate based on the original lease term and not theremaining lease term. The Company has elected to account for each lease component and its associated non-lease components as a single lease component and hasallocated all of the contract consideration across lease components only. This will potentially result in the initial and subsequent measurement of the balances of theright-of-use assets and lease liability for leases being greater than if the policy election was not applied. The leases include variable components (e.g. common areamaintenance) that are paid separately from the monthly base payment based on actual costs incurred and therefore were not included in the right-of-use assets andlease liability, but are reflected as an expense in the period incurred. The components of net lease costs for the years ended December 31, 2021 and 2020 are as follows (in thousands): Lease Costs Year Ended December 31, 2021 2020 Operating lease cost $418 $826 Sublease income — (421)Net lease cost $418 $405 Other information Operational cash flow used for operating leases $475 $927 The Company has measured its operating lease liabilities at its incremental borrowing rate over the remaining term for each operating lease. The weighted averageremaining lease term and the weighted average discount rate are summarized as follows: Year Ended December 31, 2021 2020 Weighted-average remaining lease term (in years) 2.5 1.2 Weighted-average discount rate 6% 12% Future lease payments under non-cancelable leases as of December 31, 2021 were as follows (in thousands): 2022 $216 2023 129 2024 130 Thereafter — Total future minimum lease payments 475 Less imputed interest (29)Total $446 Reported as: Operating lease liability $200 Operating lease liability- non-current 246 Total $446 50Table of Contents Contracts On May 13, 2020, the Company entered into an agreement with TLF Bio Innovation Lab LLC (“TLF Bio Innovation”) to manage the relaunch of the Company’s CelleRxproduct (the “TLF Agreement”) which was further amended on September 4, 2020 and subsequently terminated on February 4, 2021. Under the agreement, the Companypaid TLF Bio Innovation a monthly cash fee. Additionally, upon the successful completion of certain milestones, TLF Bio Innovation was eligible to receive warrantsexercisable for up to 2 million shares of the Company’s common stock with an exercise price equal to the average closing price of the Company’s common stock for thelast calendar month immediately prior to the date on which an individual milestone was achieved. TLF Bio Innovation was issued 15,000 warrants under the agreementon January 22, 2021. On April 16, 2020, the Company entered into an international distribution agreement with Shenzhen Microprofit Biotech Co., LTD (“Microprofit”) (the “MicroprofitAgreement”). In accordance with the Microprofit Agreement, the Company assisted Microprofit in applying for approval of Microprofit’s SARS-CoV-2 IgG and IgMAntibody Combined Test Kit (“Test Kits”) by the FDA. Under the terms of the Microprofit Agreement, if such approvals were granted, the Company would issuewarrants to certain Microprofit officers exercisable for an aggregate number of shares of the Company’s common stock equivalent to 12% of the Company’s outstandingcommon stock on the date of approval. If FDA approval was received, the Microprofit Agreement granted the Company exclusive rights to distribute the Test Kits in theUnited States through December 31, 2021. On December 31, 2020, the Microprofit Agreement expired with no warrants being issued. In connection with the Microprofit Agreement, on April 16, 2020, the Company entered into an intermediary distribution agreement with Chongqing Pioneer PharmaHoldings Limited (“Chongqing Pioneer”), a related party, which was subsequently amended on June 29, 2020. The amended agreement provided that the Companywould purchase all Test Kits from Chongqing Pioneer as an intermediary. This agreement also expired on December 31, 2021. NOTE 11. RELATED PARTY NOTE PAYABLE On February 27, 2019, the Company issued a $1.0 million promissory note payable to Pioneer Pharma (Hong Kong) Company Ltd. (“Pioneer Pharma”), which wasamended on June 25, 2019 and May 14, 2020 (the “Promissory Note”). The Promissory Note provided for an interest payment of $0.2 million which was initially amendedto a payment of $0.3 million and subsequently amended to the delivery of 65,178 units of NeutroPhase (40ml) to Pioneer Pharma. The second amendment to thePromissory Note also provided the Company with the right to repay the note at any time. On May 14, 2020, the Company repaid the $1.0 million principal balance of thePromissory Note using proceeds raised through the at-the-market offering and equity program (“ATM Program”) (see Note 14, “Stockholders’ Equity”). The Companysettled the accrued interest through two separate shipments of NeutroPhase in 2020. Upon full repayment of principal and interest during the year ended December 31,2020, the Company was released from the Promissory Note with Pioneer Pharma. In connection with the Promissory Note, the Company paid China Kington a 2% fee for brokering the transaction and entered into a consulting agreement with ChinaKington for a term of one year, which expired on March 1, 2020. Bob Wu, acting in a dual role as a member of the Company’s Board of Directors and as principal of ChinaKington, was paid $0.1 million pursuant to such consulting agreement. Upon the expiration of the original consulting agreement, the parties entered into a newconsulting agreement, in which no cash compensation will be paid. Debt issuance costs associated with the issuance of the Promissory Note of $20 thousand wasrecognized and recorded as an offset to the related party note payable in the consolidated balance sheets. The interest expense recognized, including amortization of the issuance costs, was $75 thousand during the year ended December 31, 2020. There was no comparableexpense for the year ended December 31, 2021. NOTE 12. CONVERTIBLE NOTE On March 26, 2019, the Company entered into a Securities Purchase Agreement with Iliad Research and Trading, L.P. (the “Lender”), pursuant to which the Companyissued a Secured Convertible Promissory Note (the “Convertible Note”) to the Lender dated as of March 26, 2019. The Convertible Note had an original principal amountof $2.2 million, beared interest at a rate of 10% per annum and matured on September 26, 2020, unless earlier paid, redeemed or converted in accordance with its terms.The Company received net proceeds of $2.0 million after deducting an original issue discount of $0.2 million and debt issuance cost of Lender’s transaction fees of $15thousand. The Company recognized an additional $0.2 million of debt issuance costs associated with the issuance of the Convertible Note. The Convertible Note wasrepaid in full during the third quarter of 2020. Upon full repayment, the Company was released from the Convertible Note. 51Table of Contents During the year ended December 31, 2020, the effective interest rate on the Convertible Note was 20%. Interest expense recognized, including amortization of theissuance costs and debt discount, was $0.2 million during the year ended December 31, 2020. NOTE 13. WARRANT LIABILITY July 2011 Warrants The Company issued the July 2011 Warrants (as defined in Note 14, “Stockholders’ Equity”) in the third quarter of 2011. The terms of the July 2011 Warrants requiredregistered shares to be delivered upon warrant exercise and potential cash-settlement in the event of a specified fundamental transaction. Under ASC 480,Distinguishing Liabilities from Equity, the warrants were classified as liabilities because the Company’s potential obligation to deliver registered shares and cash-settlethe warrants were deemed to be beyond the Company’s control. The fair value of outstanding July 2011 Warrants was determined at each reporting date using a Latticemodel with changes in fair value recorded in the consolidated statements of operations and comprehensive loss. On March 6, 2020, the remaining 35,107 July 2011 Warrants expired unexercised. There were no July 2011 Warrants outstanding as of December 31, 2020 or December 31,2021. October 2015 Warrants The Company issued the October 2015 Warrants (as defined in Note 14, “Stockholders’ Equity”) in the third quarter of 2015. The terms of the October 2015 Warrantsrequired potential cash-settlement in the event of a specified fundamental transaction. Under ASC 480, Distinguishing Liabilities from Equity, the warrants wereclassified as liabilities because the Company’s potential obligation to cash-settle the warrants was deemed to be beyond the Company’s control. The fair value ofoutstanding October 2015 Warrants was determined at each reporting date using a Lattice model with changes in fair value recorded in the consolidated statements ofoperations and comprehensive loss. During the fourth quarter of 2020, a total of 22,680 October 2015 Warrants were exercised, resulting in gross proceeds of $5 thousand. The liability associated with thesewarrants was adjusted to fair value of $12 thousand as of the date of exercise, with the change in fair value recorded in the consolidated statements of operations andcomprehensive loss. The fair value was then transferred to equity. On October 27, 2020, 15,320 October 2015 Warrants expired unexercised. There were no October 2015 Warrants outstanding as of December 31, 2020 or December 31,2021. 2019 Domestic, Foreign & Ladenburg Warrants As further described in Note 14, “Stockholders’ Equity”, the Company issued the 2019 Domestic Warrants, the 2019 Foreign Warrants and the 2019 Ladenburg Warrantsin the third quarter of 2019. The terms of the 2019 Domestic Warrants, 2019 Foreign Warrants and 2019 Ladenburg Warrants all required potential cash-settlement in theevent of a specified fundamental transaction. Under ASC 480, Distinguishing Liabilities from Equity, the warrants were classified as liabilities because the Company’spotential obligation to cash-settle the warrants was deemed to be beyond the Company’s control. The fair value of outstanding warrants was determined at eachreporting date using a Black-Scholes option pricing model with the changes in fair value recorded in the consolidated statements of operations and comprehensive loss. Upon issuance in the third quarter of 2019, the fair value of the 2019 Domestic Warrants, 2019 Foreign Warrants and 2019 Ladenburg Warrants was determined to be $3.1million, $2.0 million and $0.1 million, respectively. 52Table of Contents In the third quarter of 2020, as further described in Note 14, “Stockholders’ Equity”, the 2019 Domestic Warrants and 2019 Foreign Warrants were exercised at reducedexercise prices. The warrant liabilities associated with these warrants was adjusted to their fair values as of the date of exercise, with the change in fair values recorded inthe consolidated statements of operations and comprehensive loss. The fair values were then transferred to equity. As of the date of exercise, the fair value of the 2019Domestic Warrants and 2019 Foreign Warrants was determined to be $4.9 million and $4.2 million, respectively, in accordance with the following key assumptions: Assumptions 2019 DomesticWarrants 2019 ForeignWarrants Expected price volatility 178% 178%Expected term (in years) 4.57 4.57 Risk-free interest rate 0.25% 0.27%Dividend yield 0.00% 0.00%Weighted-average fair value of warrant $1.18 $1.54 There were no 2019 Domestic Warrants or 2019 Foreign Warrants outstanding as of December 31, 2020 or December 31, 2021. In the third quarter of 2020, as further described in Note 14, “Stockholders’ Equity”, the Company amended the 2019 Ladenburg Warrants. The Company’s potentialobligation to cash-settle the warrants if a specified fundamental transaction occurred was amended to apply only in situations within the Company’s control. Pursuantto this change, the 2019 Ladenburg Warrants were no longer classified as liabilities. The warrant liability associated with these warrants was adjusted to fair value as ofthe date of the amendment, with the change in fair value recorded in the consolidated statements of operations and comprehensive loss. The fair value was thentransferred to equity. The fair value of the 2019 Ladenburg Warrants was determined to be $0.2 million on the date of amendment in accordance with the following keyassumptions: Expected price volatility 186%Expected term (in years) 4.05 Risk-free interest rate 0.22%Dividend yield 0.00%Weighted-average fair value of warrants $1.17 The 2019 Ladenburg Warrants will no longer be adjusted to fair value in reporting periods after the amendment. All 2019 Ladenburg Warrants remained outstanding asof December 31, 2021. November 2021 Warrants As further described in Note 14, “Stockholders’ Equity”, the Company issued the 2021 Warrants in the fourth quarter of 2021. The terms of the 2021 Warrants requiredthat the Company obtain shareholder approval for an increase in authorized shares before they became exercisable. Under ASC 480, Distinguishing Liabilities fromEquity, the 2021 Warrants were classified as liabilities as of December 31, 2021 and until the 2021 Warrants became exercisable. The 2021 Warrants became exercisablesubsequent to December 31, 2021, on January 31, 2022. The fair value was then transferred to equity. Upon issuance, the fair value of the 2021 Warrants was determined to be $14.2 million in accordance with the following key assumptions as of November 2, 2021: Expected price volatility 84.9%Expected term (in years) 6.2 Risk-free interest rate 1.29%Dividend yield 0.00%Weighted-average fair value of warrants $0.38 As of December 31, 2021, the fair value of the 2021 Warrants was determined to be $9.6 million in accordance with the following key assumptions: Expected price volatility 87%Expected term (in years) 6.0 Risk-free interest rate 1.31%Dividend yield 0.00%Weighted-average fair value of warrants $0.25 53Table of Contents NOTE 14. STOCKHOLDERS' EQUITY Preferred Stock The Company is authorized to issue up to 5,000,000 shares of preferred stock with rights and preferences as may be approved by its Board of Directors under itsAmended and Restated Certificate of Incorporation. On October 29, 2021, the Company entered into a securities purchase agreement with various institutional investors to sell in a private placement offering (the “2021Private Placement”) (i) an aggregate of 15,000 shares of our newly-created Series B Non-Voting Preferred Stock (the “Preferred Stock”) convertible into an aggregate of37,500,000 shares of Common Stock, and (ii) warrants (the “2021 Warrants”) exercisable for 37,500,000 shares of Common Stock for net proceeds of $14.9 million. The2021 Private Placement closed on November 2, 2021. The 2021 Warrants are exercisable into 37,500,000 Warrant Shares at an exercise price of $0.53 per share, subject to adjustment. The Warrants were not immediatelyexercisable upon issuance. In order for the Warrants to become exercisable, the Company was required to hold a stockholder meeting to (i) obtain stockholder approval,in accordance with the NYSE American LLC Company Guide (the “Company Guide”) Section 713(a) and (b), for the issuance of the 37,500,000 shares of Common Stockupon the exercise of all of the Warrants, as well as the issuance of the 37,500,000 Conversion Shares upon conversion of the Preferred Stock (the “Share IssuanceProposal”) and (ii) obtain stockholder approval of an amendment to the Company’s Amended and Restated Certificate of Incorporation to increase the number ofauthorized shares of Common Stock from 100,000,000 shares to 150,000,000 shares (the “Authorized Share Increase Proposal”). The Company held a special meeting ofstockholders on December 17, 2021 (the “Special Meeting”) at which the Share Issuance Approval was approved by stockholders and, at a subsequent adjournment ofthe Special Meeting on January 31, 2022, the stockholders approved the Authorized Share Increase Proposal. As a result of these approvals having been given by thestockholders at the Special Meeting, the Warrants became exercisable subsequent to December 31, 2021 and will continue to be exercisable for a period of six (6) yearsthereafter. Each share of the Preferred Stock that we issued in the Private Placement had a purchase price of $1,000 per share and is initially convertible at a conversion price of$0.40 into 2,500 shares of Common Stock, or an aggregate of 37,500,000 shares of Common Stock. The conversion by the holders of the Preferred Stock was initiallysubject to approval of the Share Issuance Proposal. Until the Share Issuance Proposal was approved by stockholders at the Special Meeting, the holders of thePreferred Stock were limited in converting their shares to an aggregate of 19.99% of the outstanding shares of Common Stock immediately prior to the closing of the 2021Private Placement, or 8,984,178 shares of Common Stock. As a result of the Company’s stockholders approving the Share Issuance Proposal at the Special Meeting, thislimitation upon conversion of Preferred Stock was no longer applicable to the holders as of December 31, 2021. The Preferred Stock does not have any preemptive rightsor a preference upon any liquidation, dissolution or winding-up of NovaBay. The Preferred Stock does, however, have anti-dilution protection in the event that we sell orgrant any Common Stock or any other securities of our Company, subject to certain limited exceptions, that would entitle the holder thereof to acquire Common Stock atan effective price per share that is lower than the then applicable conversion price of the Preferred Stock. The Company allocated the net proceeds between the Preferred Stock and the 2021 Warrants by applying the residual fair value methodology. The Company firstallocated $14.2 million to the 2021 Warrants, with the residual amount allocated to the Preferred Stock. See Note 13, “Warrant Liability” for further discussion of the keyassumptions used to value the 2021 Warrants. In connection with the issuance of the Preferred Stock, the Company recorded a beneficial conversion feature of $0.7 million as a discount to Preferred Stock and anincrease to additional paid in capital. The Company fully amortized the discount related to the beneficial conversion feature on the deemed dividend in the consolidatedstatements of operations and comprehensive loss upon approval of the Share Issuance Proposal in the fourth quarter of 2021. The Company incurred total issuance costs of $1.7 million in conjunction with the 2021 Private placement. The Company allocated $1.6 million of the issuance costs tothe warrant liability which was expensed in the Company’s consolidated statements of operations and comprehensive loss during the year ended December 31, 2021.The remaining $0.1 million was recorded as a reduction of Preferred Stock in the Company’s consolidated balance sheets. There were 14 thousand shares of the Preferred Stock outstanding as of December 31, 2021. Common Stock April 2020 At the Market Offering In the second quarter of 2020, the Company established the 2020 ATM Program with Ladenburg Thalmann & Co. Inc. (“Ladenburg”). For additional informationregarding the offering and equity program, see the Company’s Current Reports on Form 8-K filed with the SEC on April 27, 2020 and September 15, 2020. During thesecond quarter of 2020, 5,836,792 shares of common stock were issued under the 2020 ATM Program for total net proceeds of $5.6 million, net of offering costs of $0.4million. May 2021 At the Market Offering In the second quarter of 2021, the Company established the 2021 ATM Program with Ladenburg. For additional information regarding the offering and equity program,see the Company’s Current Report on Form 8-K filed with the SEC on May 14, 2021. During the second quarter of 2021, 2,672,000 shares of common stock were issuedunder the 2021 ATM Program for total net proceeds of $1.8 million, net of offering costs of $0.1 million. Common Stock Warrants July 2011 Warrants In the third quarter of 2011, the Company issued 139,520 common stock purchase warrants exercisable for 139,520 shares of common stock in connection with aregistered direct financing (the “July 2011 Warrants”). The July 2011 Warrants were issued with an exercise price of $33.25 and an expiration date of July 5, 2016. InOctober 2015, in connection with a separate financing event, the exercise price of outstanding July 2011 Warrants was reduced to $5.00 per share and the expiration dateextended to March 6, 2020. In February 2016 and May 2019, the exercise price of outstanding July 2011 Warrants was reduced to $1.81 and $0.2061 per share,respectively, pursuant to price protection provisions of the warrants. 54Table of Contents In March 2020, a total of 35,107 July 2011 Warrants expired unexercised. As of December 31, 2021, there were no July 2011 Warrants outstanding. March 2015 Warrants In the first quarter of 2015, the Company issued 649,133 common stock purchase warrants exercisable for 649,133 shares of common stock in connection with a privateplacement offering (the “March 2015 Warrants”). The exercise price of individual March 2015 Warrants varied between $15.00 and $16.25 per share at the time ofissuance. The Company issued 278,200 of the March 2015 Warrants with an expiration date of March 6, 2020 and the remaining 370,933 March 2015 Warrants with anexpiration date of September 6, 2015. In October 2015, in connection with a separate financing event, the exercise price of all outstanding March 2015 Warrants wasreduced to $5.00 per share and the expiration date of all outstanding warrants expiring on September 6, 2015 was extended to March 6, 2020. In February 2016 and May2019, the exercise price of all outstanding July 2011 Warrants was reduced to $1.81 and $0.2061 per share, respectively, pursuant to price protection provisions of thewarrants. During the first quarter of 2020, a total of 70,000 March 2015 Warrants were exercised, resulting in gross proceeds of $14 thousand. Also in the first quarter of 2020, allremaining 7,419 March 2015 Warrants expired unexercised. As of December 31, 2021, there were no March 2015 Warrants outstanding. October 2015 Warrants In the fourth quarter of 2015, the Company issued 442,802 common stock purchase warrants exercisable for 442,802 shares of common stock in connection with a publicoffering (the “October 2015 Warrants”). The warrants were issued with an exercise price of $5.00 and an expiration date of October 27, 2020. In February 2016 and May2019, the exercise price of outstanding October 2015 Warrants was reduced to $1.81 and $0.2061 per share, respectively, pursuant to price protection provisions of thewarrants. Also during the fourth quarter of 2020, a total of 22,680 October 2015 Warrants were exercised, resulting in gross proceeds of $5 thousand. During the fourth quarter of 2020, all remaining 15,320 October 2015 Warrants expired unexercised. As of December 31, 2021, there were no October 2015 Warrantsoutstanding. June 2019 Private Placement and June 2019 Warrants During the second quarter of 2019, the Company entered into a private placement agreement to sell 1,371,427 shares of common stock and 1,371,427 common stockpurchase warrants exercisable for 1,371,427 shares of common stock (the “June 2019 Warrants”) for an aggregate subscription price of $2.4 million. Three accreditedinvestors, Messrs. Xiao Rui Liu, Hai Dong Pang and Ping Huang, subscribed to the private placement for $1.0 million, $0.4 million and $1.0 million, respectively. ChinaKington served as placement agent in exchange for a commission equal to six percent (6%) of the gross proceeds, totaling $0.1 million. The Company also paid otheroffering costs of $27 thousand. The June 2019 Warrants were issued with an exercise price of $0.87 and an expiration date of June 17, 2020. The June 2019 Warrants were callable by the Company if theclosing price of the Company’s common stock, as reported on the NYSE American, was $1.00 or greater. During the first quarter of 2020, a total of 228,571 June 2019 Warrants were exercised, resulting in gross proceeds of $199 thousand. The Company paid China Kington afee of $12 thousand, or six percent (6%) of the gross proceeds, for brokering the exercise transaction. During the second quarter of 2020, a total of 571,428 June 2019 Warrants were exercised, resulting in gross proceeds of $497 thousand. The Company paid ChinaKington a fee of $29 thousand, or six percent (6%) of the gross proceeds, for brokering the exercise transaction. Also during the second quarter of 2020, all remaining571,428 June 2019 Warrants expired unexercised. As of December 31, 2021, there were no June 2019 Warrants outstanding. 55Table of Contents 2019 Domestic Warrants, 2019 Ladenburg Warrants, 2019 Foreign Warrants, 2019 Ladenburg Warrants and July 2020 Warrants In the third quarter of 2019, the Company entered into a purchase agreement (the “2019 Purchase Agreement”) for the sale of (i) 4,198,566 shares of common stock and(ii) 4,198,566 common stock purchase warrants exercisable for 4,198,566 shares of common stock (the “2019 Domestic Warrants”) for gross proceeds of $4.2 million. The2019 Domestic Warrants were issued with an exercise price of $1.15 and an expiration date of February 13, 2025. The Company allocated the proceeds between the common stock and 2019 Domestic Warrants by applying the relative fair value allocation methodology. The Companyfirst allocated $3.1 million to the 2019 Domestic Warrants, with the residual amount allocated to the common stock. See Note 13, “Warrant Liability” for furtherdiscussion of the key assumptions used to value the 2019 Domestic Warrants. Ladenburg served as the placement agent for the transaction in exchange for a commission representing six percent (6%) of the gross proceeds, totaling $0.3 million, and167,942 common stock purchase warrants exercisable for 167,942 shares of common stock with an exercise price of $1.25 per share and an expiration date of August 8,2024 (the “2019 Ladenburg Warrants”). In addition, the Company reimbursed the Placement Agent $60 thousand for certain expenses. The Company also incurred andpaid other offering costs of $0.3 million. The Company incurred total issuance costs of $0.5 million in conjunction with the 2019 Purchase Agreement. The Company allocated $0.2 million of the issuance coststo the warrant liability which was expensed in the Company’s consolidated statements of operations and comprehensive loss during the period. The remaining $0.3million was recorded as a reduction of additional paid-in capital in the Company’s consolidated balance sheets. As the 2019 Ladenburg Warrants were accounted for asa stock issuance cost, $59 thousand was allocated to the warrant liability and expensed during the period and $65 thousand was recorded as a reduction to additionalpaid-in capital in the Company’s consolidated balance sheets. See Note 12, “Warrant Liability” for a discussion of the key assumptions used to value the 2019Ladenburg Warrants. During the third quarter of 2020, the Company and the holders of the 2019 Domestic Warrants and the 2019 Foreign Warrants entered into exercise agreements whichresulted in the cash exercise of the warrants at a reduced exercise price of $0.99. The Company received aggregate gross proceeds of approximately $6.8 million from theexercises. The Company incurred and paid other offering costs of $0.2 million. The Company also incurred and paid a $0.2 million fee to China Kington for brokering thetransaction, which equaled six percent (6%) of the gross proceeds from the 2019 Foreign Warrants. During the third quarter of 2020, the Company and all holders of the 2019 Domestic Warrants and 2019 Foreign Warrants entered into warrant repricing letter agreements.Pursuant to the agreement, in consideration for the exercise in full of the 2019 Domestic Warrants and 2019 Foreign Warrants, the Company agreed to: (1) reduce theexercise price of the 2019 Domestic Warrants and the 2019 Foreign Warrants to $0.99 per share prior to exercise, and (2) in a private placement, issue new common stockpurchase warrants (the “July 2020 Warrants”) to purchase up to a number of shares of common stock, equal to 100% of the number of 2019 Domestic Warrants and 2019Foreign Warrants currently held by such holders upon the holders exercising their warrants. The July 2020 Warrants became exercisable nine months after their issuance, for an aggregate of 6,898,566 shares of common stock. The July 2020 Warrants have anexercise price of $1.65 per share and will expire five and a half years after their issuance. The Company determined that the common stock issued from the exercise of the2019 Domestic and 2019 Foreign Warrants, and the July 2020 Warrants to be one unit of account, and therefore did not allocate the proceeds between the common stockand the July 2020 Warrants as, the proceeds, even if allocated, would be both recognized in additional paid-in capital. During the third quarter of 2020, the Company also entered into a reprice agreement with Ladenburg which reduced the exercise price to $0.99 per share and amendedcertain terms of the 2019 Ladenburg Warrants. The Company’s potential obligation to cash-settle the warrants if a specified fundamental transaction occurred wasamended to apply only in situations within the Company’s control. As further described in Note 13 “Warrant Liability”, the 2019 Ladenburg Warrants were no longerclassified as a liability as a result of this amendment. TLF Bio Innovation 2021 Warrants On January 15, 2021, TLF Bio Innovation was granted warrants exercisable for 15,000 shares of the Company’s common stock with an exercise price of $0.6718 (the “TLFWarrants”). The TLF Warrants will expire five years after their issuance. The TLF Warrants are classified as equity. 56Table of Contents The details of all outstanding warrants as of December 31, 2021 were as follows: Warrants(in thousands) Weighted-AverageExercisePrice Outstanding at December 31, 2020 7,067 $1.63 Warrants granted 15 $0.67 Warrants expired — $— Outstanding at December 31, 2021 7,082 $1.63 NOTE 15. EQUITY-BASED COMPENSATION Equity Compensation Plans In October 2007, the Company adopted the 2007 Omnibus Incentive Plan (the “2007 Plan”) to provide for the granting of equity awards, such as stock options,unrestricted and restricted common stock, stock units, dividend equivalent rights, and stock appreciation rights to employees, directors and outside consultants, asdetermined by the Board. The 2007 Plan expired on March 15, 2017. Upon expiration, new awards cannot be issued pursuant to the 2007 Plan, but outstanding awardscontinue to be governed by its terms. Stock options granted under the 2007 Plan expire no later than ten years from the date of grant. All stock options outstandingunder the 2007 Plan were fully vested as of December 31, 2020. In March 2017, the Company adopted the 2017 Omnibus Incentive Plan (the “2017 Plan”), which was approved by stockholders on June 2, 2017, to provide for thegranting of equity awards, such as nonqualified stock options (“NQSOs”), incentive stock options (“ISOs”), restricted stock, performance shares, stock appreciationrights (“SARs”), RSUs and other share-based awards to employees, directors, and consultants, as determined by the Board. The 2017 Plan does not affect awardspreviously granted under the 2007 Plan. Upon adoption, the 2017 Plan allowed for awards of up to 2,318,486 shares of the Company’s common stock, plus an automaticannual increase in the number of shares authorized for awards on the first day of each of the Company’s fiscal years beginning January 1, 2018 through January 1, 2027equal to (i) 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 ofcommon stock than provided for in Section 4(a)(i) of the 2017 Plan as determined by the Board. On January 15, 2021, the number of shares available for future awardsunder the 2017 Plan was increased by 1,671,303 shares. As of December 31, 2021, there were 1,842,993 shares available for future awards under the 2017 Plan. Under the terms of the 2017 Plan, the exercise price of NQSOs, ISOs and SARs may not be less than 100% of the fair market value of the common stock on the date ofgrant and, if ISOs are granted to an owner of more than 10% of the Company’s stock, then not less than 110% of the fair market value of the common stock on the date ofgrant. The term of awards will not be longer than ten years, or in the case of ISOs, not longer than five years with respect to holders of more than 10% of the Company’sstock. Stock options granted to employees generally vest over four years, while options granted to directors and consultants typically vest over a shorter period,subject to continued service. The Company issues new shares to satisfy option exercises under the 2007 Plan and the 2017 Plan. 57Table of Contents Stock Option Summary The following table summarizes information about the Company’s stock options and restricted stock outstanding at December 31, 2021, 2020, and activity during theyear ended December 31, 2021: (in thousands, except yearsand per share data) Options Weighted-AverageExercisePrice Weighted-AverageRemainingContractualLife (years) AggregateIntrinsicValue Outstanding at December 31, 2020 3,165 $2.05 7.6 $189 Options granted 516 $0.66 Restricted stock units granted 1,528 $— Restricted stock units vested (488) $— Options forfeited/cancelled (272) $2.35 Outstanding at December 31, 2021 4,449 $1.39 7.6 $460 Vested and expected to vest at December 31, 2021 4,125 $1.46 7.5 $406 Vested at December 31, 2021 2,150 $2.42 5.4 $8 Exercisable at December 31, 2021 2,150 $2.42 5.9 $8 The aggregate intrinsic value in the table above is calculated as the difference between the exercise price of the underlying stock option awards and the closing marketprice of the Company’s common stock as quoted on the NYSE American as of December 31, 2021 for options that have a quoted market price in excess of the exerciseprice. There were no stock option awards exercised during the year ended December 31, 2021. There were 20 thousand stock option awards exercised during the yearended December 31, 2020 for which the Company received cash payments of $7 thousand. There was no intrinsic value for stock option awards exercised for the yearended December 31, 2020. There were 83 thousand stock option awards exercised for the year ended December 31, 2019 for which the Company received cash paymentsof $0.2 million. There was no intrinsic value for stock option awards exercised for the year ended December 31, 2019. As of December 31, 2021, total unrecognized compensation cost related to unvested stock options and restricted stock was approximately $1.2 million. This amount isexpected to be recognized as stock-based compensation expense in the Company’s consolidated statements of operations and comprehensive loss over the remainingweighted average vesting period of 2.29 years. Stock Option Awards to Employees and Directors The Company grants options to purchase common stock to its employees and directors at prices equal to or greater than the market value of the stock on the dates theoptions are granted. The Company has estimated the value of stock option awards as of the date of grant by applying the Black-Scholes option pricing model using thesingle-option valuation approach. The application of this valuation model involves assumptions that are judgmental and subjective in nature. See Note 2, “Summary ofSignificant Account Policies,” for a description of the accounting policies that the Company applied to value its stock-based awards. During the years ended December 31, 2021, 2020, and 2019, the Company granted options to employees and directors to purchase an aggregate of 516,000, 1,158,000, and145,000 shares of common stock, respectively. 58Table of Contents The weighted-average assumptions used in determining the value of options are as follows: Year Ended December 31, Assumptions 2021 2020 2019 Expected price volatility 164% 161% 112%Expected term (in years) 6.19 6.45 6.14 Risk-free interest rate 1.05% 0.45% 1.99%Dividend yield 0.00% 0.00% 0.00%Weighted-average fair value of options granted during the period $0.64 $0.94 $0.31 Expected Price Volatility—This is a measure of the amount by which the stock price has fluctuated or is expected to fluctuate. The computation of expected volatilitywas based on the historical volatility of our own stock. Expected Term—This is the period of time over which the options granted are expected to remain outstanding. The expected life assumption is based on the Company’shistorical data. Risk-Free Interest Rate—This is the U.S. Treasury rate for the week of the grant having a term approximating the expected life of the option. Dividend Yield—We have not made any dividend payments nor do we have plans to pay dividends in the foreseeable future. Forfeitures are estimated at the time of grant and reduce compensation expense ratably over the vesting period. This estimate is adjusted periodically based on theextent to which actual forfeitures differ, or are expected to differ, from the previous estimate. During the year ended December 31, 2021, the Company granted 1,200,000 RSUs to employees and directors. During the year December 31, 2020, the Company granted160,000 RSU to one employee. No employees were granted RSUs during the year ended December 31, 2019. For the years ended December 31, 2021, 2020, and 2019, the Company recognized stock-based compensation expense of $0.7 million, $0.5 million, and $0.4 million,respectively, for option awards to employees and directors. The Company modified stock options held by Mr. Yonghao (Carl) Ma in April 2019, Mr. Yanbin (Lawrence) Liu in May 2019, Mr. Mark Sieczkarek in July 2019, Mr. ToddZavodnick in September 2019, Ms. Gail Maderis in April 2020 and Mr. Xiaopei Wang in August 2020, who each resigned as a director of the Company. The optionexercise period for each of the former directors listed was extended from three months to three years, calculated from each director’s date of resignation. Each director’sstock option awards became fully vested at the date of his or her resignation. In connection with the stock option modification for each of Messrs. Ma, Liu, Sieczkarek,Zavodnick, Ms. Maderis and Mr. Wang, the Company recognized stock-based compensation expense of $14 thousand, $7 thousand, $60 thousand, $24 thousand, $36thousand and $17 thousand, respectively, which are included in the figure above. Stock-Based Awards to Non-Employees During the year December 31, 2021, the Company did not grant options to purchase shares of common stock to non-employees. During the year ended December 31,2020, the Company granted options to purchase an aggregate of 400,000 shares of common stock to non-employees in exchange for advisory and consulting services.Out of the 400,000 shares, 300,000 shares were granted to a related party, Eric Wu, Partner and Senior Vice President of China Kington and the brother of Bob Wu, whoserves on the Company’s Board of Directors. Please refer to Note 19, “Related Party Transactions”, for more details related to the consulting service agreement. Duringthe year ended December 31, 2019, the Company did not grant options to purchase shares of common stock to non-employees. Stock options granted to non-employees recorded at their fair value on the measurement date and recognized over the respective service or vesting period. The fairvalue of the stock options granted was calculated using the Black-Scholes-Merton option pricing model based upon the following assumptions: Year Ended December 31, Assumptions 2021 2020 Expected price volatility — 162%Expected term (in years) — 6.34 Risk-free interest rate — 0.50%Dividend yield — 0.00%Weighted-average fair value of options granted during the period $— $0.73 59Table of Contents The Company did not grant restricted stock to non-employees during the year ended December 31, 2021. In connection with Mr. Sieczkarek’s resignation, the Company granted 168 thousand shares of fully vested registered stock to Mr. Sieczkarek during the year endedDecember 31, 2019. The expense related to these shares was recorded in the Company’s consolidated statements of operations and comprehensive loss. At the time ofhis resignation, the Company also entered into a two-year consulting agreement with Mr. Sieczkarek under which he is entitled to receive additional shares of fullyvested registered stock in exchange for consulting services. According to the terms of the agreement, the stock units are to be issued in two tranches of $0.2 millioneach for a total aggregate fair market value equal to $0.4 million. The number of shares issued for each tranche is calculated using the closing price on each respectivegrant date. In July 2020, the Company issued 192,983 shares to Mr. Sieczkarek to fulfill the first tranche. In July 2021, the Company issued 328,359 shares to Mr.Sieczkarek to fulfill the second tranche. The expense related to the shares issued under the consulting agreement is being recorded over the term of the ConsultingAgreement. During the fourth quarter of the year ended December 31, 2019, the Company paid two consultants, Ms. Moon and Ms. Xiao, via a combination of 36 thousandregistered shares and cash for services rendered, based on the terms of their consulting agreements. For the years ended December 31, 2021, 2020, and 2019, the Company recognized stock-based compensation expense of $240 thousand, $64 thousand, and $37thousand, respectively, related to non-employee options and restricted stock grants. Summary of Stock-Based Compensation Expense A summary of the stock-based compensation expense included in results of operations for the options and restricted stock awards discussed above is as follows (inthousands): Year Ended December 31, 2021 2020 2019 Research and development $10 $23 $42 Sales and marketing 129 85 93 General and administrative 794 424 351 Total stock-based compensation expense $933 $532 $486 NOTE 16. LICENSE, COLLABORATION AND DISTRIBUTION AGREEMENTS Transactions under the Company’s major distribution agreements are recognized upon transfer of control of product sold to its major distribution partners at the amountof consideration that the Company expects to be entitled to. The Company records contract liabilities for the amounts that are estimated to be subject to significantreversal, including allowances for services, discounts, rebate programs, and product returns. The following table presents changes in the Company's contract assets and liabilities for the year ended December 31, 2021 (in thousands): Balance atBeginning ofthePeriod Additions Deductions Balance atthe end of thePeriod Contract liabilities: deferred revenue $2 $176 $(124) $54 Contract liabilities: accrued liabilities (includes contract assets) 573 1,851 (1,154) 1,270 Total $575 $2,027 $(1,278) $1,324 The following table presents changes in the Company's contract assets and liabilities for the year ended December 31, 2020 (in thousands): Balance atBeginning ofthePeriod Additions Deductions Balance atthe end of thePeriod Contract liabilities: deferred revenue $— $2 $— $2 Contract liabilities: accrued liabilities (includes contract assets) 434 2,338 (2,199) 573 Total $434 $2,340 $(2,199) $575 60Table of Contents For the years ended December 31, 2021, 2020 and 2019, the Company recognized the following revenue (in thousands): Year Ended December 31, 2021 2020 2019 Revenue recognized in the period from: Amounts included in contract liabilities at the beginning of the period: Performance obligations satisfied $573 $434 $1,473 New activities in the period: Performance obligations satisfied 7,848 9,500 5,126 $8,421 $9,934 $6,599 Avenova Spray Pharmacy Distribution Agreements and Specialty Pharmacies Avenova Spray is made available in local pharmacies and major pharmacy retail chains under nationwide distribution agreements with McKesson Corporation, CardinalHealth and AmerisourceBergen. We have also entered into direct agreements with preferred pharmacy networks as part of our Partner Pharmacy Program. During theyears ended December 31, 2021, 2020 and 2019, the Company earned $0.6 million, $1.7 million and $4.6 million, respectively, in sales revenue for its Avenova Sprayproduct from these distribution and partner pharmacy agreements. Under these product distribution arrangements, the Company had a contract liability balance of $0.9 million as of December 31, 2021 and $0.7 million as of December 31,2020. The contract liability is included in accrued liabilities in the consolidated balance sheets. The Company also recorded a prepayment of $19 thousand and $144thousand for rebates related to these distribution agreements as of December 31, 2021 and December 31, 2020, respectively, that is recorded in the prepaid expenses andother current assets in the consolidated balance sheets (see Note 5, “Prepaid Expenses and Other Current Assets”). Over-the-Counter Sales of Avenova Spray Avenova Spray was launched online on June 1, 2019 direct to U.S. customers. Avenova Spray is offered primarily for sale on Amazon.com, the Company’s website(Avenova.com) and Walmart.com. Avenova Spray was launched at select CVS stores and online on CVS.com in February 2021. These channels provide the Companywith more stable pricing and provide customers with easy access to our product. During the years ended December 31, 2021, 2020, and 2019 the revenue generated fromAvenova Spray in these channels was $5.1 million, $3.3 million, and $1.0 million, respectively. NOTE 17. EMPLOYEE BENEFIT PLAN The Company has a 401(k) plan covering all eligible employees. The Company was not required to contribute to the plan and made no contributions during the yearended December 31, 2021 or 2020. The Company made an election to change the terms of the 401(k) plan such that, beginning on January 1, 2022, the Company will berequired to make a matching contribution equal to 100% of the first 3% of compensation deferred, plus 50% of the next 2% of compensation deferred. 61Table of Contents NOTE 18. INCOME TAXES For the years ended December 31, 2021, 2020 and 2019, loss before provision for income taxes consisted of the following (in thousands): Year Ended December 31, 2021 2020 2019 United States $(5,824) $(11,034) $(9,652)International — — — $(5,824) $(11,034) $(9,652) For the years ended December 31, 2021, 2020 and 2019, the federal and state income tax provision is summarized as follows (in thousands): Year Ended December 31, 2021 2020 2019 Current Federal $— $— $— State — 5 6 Other — — — Total current tax expense — 5 6 Deferred Federal — — — State — — — Other — — — Total deferred tax expense — — — Income tax provision $— $5 $6 Deferred income taxes reflect the net tax effects of (a) temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes andthe amounts used for income tax purposes, and (b) operating losses and tax credit carryforwards. 62Table of Contents The tax effects of significant items comprising the Company's deferred taxes as of December 31, 2021 and 2020 are as follows (in thousands): Year Ended December 31, 2021 2020 Deferred tax assets: Net operating losses $33,455 $31,115 Stock options 884 790 Research and development credits 641 641 Accruals 306 267 Operating lease liabilities 19 109 Property and equipment 10 2 Other deferred tax assets 376 81 Total deferred tax assets 35,691 33,005 Deferred tax liabilities: Operating lease right-of-use assets (19) (108)Total deferred tax liabilities (19) (108) Valuation allowance (35,672) (32,897)Net deferred taxes $— $— ASC 740 requires that the tax benefit of net operating losses, temporary differences and credit carryforwards be recorded as an asset to the extent that managementassesses that realization is "more likely than not." Realization of the future tax benefits is dependent on the Company's ability to generate sufficient taxable incomewithin the carryforward period. Because of the Company's recent history of operating losses, management believes that recognition of the deferred tax assets arisingfrom the above-mentioned future tax benefits is currently not likely to be realized and, accordingly, has provided a valuation allowance. On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act was enacted. The CARES Act changed net loss carryforward and back provisions and thebusiness interest expenses limitation. The Company has evaluated the impact of the CARES Act and determined that none of the changes would result in a material cashbenefit to the Company. The valuation allowance increased by $2.8 million, $1.3 million and $2.2 million during the years ended December 31, 2021, 2020 and 2019, respectively. Net operating loss and tax credit carryforwards as of December 31, 2021, are as follows (in thousands): Expiration Amount Years Net operating losses, federal (Post December 31, 2017) $30,989 Does Not Expire Net operating losses, federal (Pre January 1, 2018) $94,886 Beginning in 2024 Net operating losses, state $106,784 Beginning in 2028 Tax credits, federal $1,321 Beginning in 2026 Tax credits, state $325 Indefinite A reconciliation of the beginning and ending balance of unrecognized income tax benefits follows (in thousands): Year Ended December 31, 2021 2020 Unrecognized benefit - beginning of period $974 $974 Change during the period — — Unrecognized benefit - end of period $974 $974 The entire amount of the unrecognized tax benefits would not impact our effective tax rate if recognized. The balance of unrecognized tax benefits increased as a resultof a comprehensive analysis to substantiate the company's research credits. Accrued interest and penalties related to unrecognized tax benefits are classified as incometax expense and were immaterial. We do not anticipate that total unrecognized tax benefits will significantly change in the next 12 months. The Company files income taxreturns in the United States and in California. Other jurisdictions are not significant. The tax years 2004 - 2021 remain open in the federal jurisdiction and 2006 - 2021 forCalifornia. The Company is not currently under examination by income tax authorities in federal, state or other jurisdictions. 63Table of Contents The effective tax rate of the Company's provision (benefit) for income taxes differs from the federal statutory rate as follows: Year Ended December 31, 2021 2020 2019 Statutory rate 21.0% 21.0% 21.0%State tax 11.2% 3.2% 3.1%Change in valuation allowance (47.7%) (11.7%) (23.0%)Warrant/equity expenses 16.7% (10.3%) 1.7%Stock-based compensation expense (1.1%) (4.0%) (3.7%)Other (0.1%) 1.7% (0.3%)Impact of 162m —% —% 1.1%Total 0.0% (0.1%) (0.1%) NOTE 19. RELATED PARTY TRANSACTIONS Related Party Revenue The following table summarizes information about the Company’s related party revenue and cost of goods sold during the years ended December 31, 2021, 2020 and2019, respectively (in thousands): Year Ended December 31, 2021 2020 2019 Related party revenue: NeutroPhase $368 $524 $209 Licensing — — 41 Total related party revenue $368 $524 $250 Cost of goods sold NeutroPhase $325 $384 $176 Licensing — — — Total related party expenses $325 $384 $176 Related party accounts receivable was $0.1 million and $0.2 million as of December 31, 2021 and December 31, 2020, respectively. Other Related Party Expenses During the year ended December 31, 2021, the Company purchased KN95 Masks through an affiliate of China Pioneer. As of December 31, 2021, there was no relatedparty account payable as compared to related party accounts payable of $8 thousand as of December 31, 2020. 64Table of Contents The following table summarizes information about the Company’s other related party expenses excluding stock-based compensation during the years ended December31, 2021, 2020 and 2019, respectively (in thousands): Year Ended December 31, 2021 2020 2019 Commissions to China Kington related to: OP Private Placement $— $— $— June 2019 Private Placement — — 144 August 2019 Private Placement — — 162 Exercise of June 2019 Warrants — 41 — Exercise of 2019 Foreign Warrants — 160 — Promissory Note to Pioneer Pharma (Hong Kong) Company Ltd. — — 20 Total commissions to China Kington — 201 326 Board Director Bob Wu consulting fee — 50 83 Total related party expenses $— $251 $409 On November 17, 2020, the Company entered into a consulting agreement with Eric Wu. Eric Wu is Partner and Senior Vice President of China Kington and the brother ofBob Wu, who serves on the Company’s Board of Directors. Pursuant to the Agreement, Eric Wu acted as a consultant to the Company in support of product expansionefforts as well as in potential financings and other transaction opportunities. The term of the Agreement was for twelve months. As consideration for his services, theCompany granted Eric Wu options exercisable for 300,000 shares of the Company’s common stock under the Company’s 2017 Omnibus Incentive Plan with an exerciseprice equal to the Company’s closing stock price on the date of the grant and vesting on the one year anniversary of the grant date. Stock-based compensation expenseof $152 thousand and $15 thousand was recorded for the year ended December 31, 2021 and 2020, respectively, related to Eric Wu’s options. NOTE 20. PAYCHECK PROTECTION PROGRAM On May 6, 2020, the Company received loan proceeds in the amount of $0.9 million from Wells Fargo Bank, N.A. (the “PPP Loan”) pursuant to the Paycheck ProtectionProgram (“PPP”) under the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), which was enacted on March 27, 2020. The terms of the PPP Loanwere subsequently revised in accordance with the provisions of the Paycheck Protection Flexibility Act of 2020, or the PPP Flexibility Act, which was enacted onSeptember 5, 2020. The PPP loan provided for an interest rate of 1.00% per year and maturity two years after the date of initial disbursement, with initial principal andinterest payments coming due late in fiscal 2021. The PPP Loan could be prepaid by the Company at any time prior to the maturity with no prepayment penalties. Fundsfrom the PPP Loan could only be used for payroll costs, costs used to continue group health care benefits, rent and utilities incurred during the 24-week period afterreceiving the PPP Loan (collectively, “Qualifying Expenses”) in order for the PPP Loan to be forgiven in whole or in part. The Company used the entire PPP Loan amountfor Qualifying Expenses. Since the Company determined that there was reasonable assurance that it would meet the conditions for forgiveness of the full loan amount, the Company accountedfor the forgivable PPP Loan as a government income grant that we earned through the Company’s compliance with the loan forgiveness criteria. A deferred incomeliability was recognized upon receipt of the forgivable loan proceeds. The deferred income liability was recognized as other income as Qualifying Expenses wereincurred. For the year ended December 31, 2020, $0.9 million, was recognized as other income and recorded in the consolidated statements of operations andcomprehensive loss. No amount was recognized for the year ended December 31, 2021. The Company received notice, dated May 24, 2021, from Wells Fargo Bank, N.A. confirming the full loan amount of $0.9 million was forgiven. NOTE 21. SEGMENT REPORTING The Company’s chief operating decision maker (“CODM”), who is the Company’s Chief Executive Officer, allocates resources and assesses performance based onfinancial information of the Company. The CODM reviews financial information presented for each reportable segment for purposes of making operating decisions andassessing financial performance. Prior to the DERMAdoctor Acquisition in November 2021 (see Note 3, Business Combination), the Company was managed as a single segment focused oncommercializing Avenova Spray in the United States. After the DERMAdoctor Acquisition, the Company began managing and aggregating its operational and financialinformation in accordance with two reportable segments: (1) Optical &Wound Care and (2) Skin Care. The Optical & Wound Care segment consists of productshistorically sold by NovaBay prior to the DERMAdoctor Acquisition. The Skin Care segment consists of products acquired in the DERMAdoctor Acquisition andskincare products subsequently sold under the DERMAdoctor brand. Select financial information for each segment is as follows: YearEnded Percentage December 31,2021 of TotalRevenue Optical & Wound Care $7,834 93%Skincare 587 7% Total revenue $8,421 100% 65Table of Contents YearEnded Percentage December 31,2021 of Total GrossMargin Optical &Wound Care $5,336 95%Skincare 309 5% Total gross margin $5,645 100% NOTE 22. SUBSEQUENT EVENTS On January 19, 2022, the Company amended the lease for its corporate headquarters located in Emeryville, California to extend the term through July 31, 2027. On January 31, 2022, the Company’s stockholders approved an amendment to the Company’s Amended and Restated Certificate of Incorporation, as amended, toincrease the number of authorized shares of the Company’s common stock from 100,000,000 to 150,000,000 (the “Amendment”). The Amendment became effective uponthe Company’s filing of the Amendment with the Secretary of State of Delaware on January 31, 2022. In February 2022, the Russian Federation and Belarus commenced a military action with the country of Ukraine. As a result of this action, various nations, including theUnited States, have instituted economic sanctions against the Russian Federation and Belarus. Further, the impact of this action and related sanctions on the worldeconomy are not determinable as of the date of these financial statements. Although the Company does not have significant customers, suppliers or operations withinthe affected geographies, the specific impact on the Company's financial condition, results of operations, and cash flows is also not determinable as of the date of thesefinancial statements. 66Table of Contents ITEM 9.CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE As previously reported on the Company’s Current Report on Form 8-K filed with the SEC on July 21, 2021, WithumSmith+Brown, PC, an independent registered publicaccounting firm (“Withum”), acquired certain assets of OUM & Co. LLP (“OUM”), the independent registered public accounting firm for NovaBay Pharmaceuticals, Inc.(the “Company”) (the “Transaction”). As a result of this Transaction, on July 15, 2021, OUM resigned as the Company’s independent registered public accounting firm.Concurrent with such resignation, the Company, with the approval of its Audit Committee, consented to the engagement of Withum as the Company’s new independentregistered public accounting firm, effective July 15, 2021. Prior to the Transaction, the Company did not consult with Withum regarding the application of accounting principles to any specific completed or contemplatedtransaction or regarding the type of audit opinion that might be rendered by Withum on the Company’s financial statements, and Withum did not provide any written ororal advice that was an important factor considered by the Company in reaching a decision as to any accounting, auditing or financial reporting issue. OUM’s Report of Independent Registered Public Accounting Firm (the “Audit Report”) on the Company’s financial statements for the fiscal years ended December 31,2020 and 2019 did not contain any adverse opinion or disclaimer of opinion and was not qualified or modified as to uncertainty, audit scope or accounting principles. During the years ended December 31, 2020 and 2019, and during the interim period from the end of the most recently completed fiscal year through July 15, 2021, the dateof resignation, there were no “disagreements” (as such term is defined in Item 304(a)(1)(iv) of Regulation S-K and the related instructions to Item 304) with OUM on anymatter of accounting principles or practices, financial statement disclosure or auditing scope or procedures, which disagreements, if not resolved to the satisfaction ofOUM would have caused it to make reference to such disagreement in its reports. During the fiscal years ended December 31, 2020 and 2019, and the subsequent interimperiod through July 15, 2021, there have been no “reportable events” (as such term is defined in Item 304 (a)(1)(v) of Regulation S-K). ITEM 9A.CONTROLS AND PROCEDURES Evaluation of Disclosure Controls and Procedures As of the end of the period covered by this report, we carried out an evaluation, under the supervision and with the participation of our management, including ourChief Executive Officer and Chief Financial Officer, of the effectiveness of our disclosure controls and procedures pursuant to Rule 13a-15 and 15d-15 of the SecuritiesExchange Act of 1934, as amended (the “Exchange Act”). A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met.Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs.Assessing the costs and benefits of such controls and procedures necessarily involves the exercise of judgment by management. Because of the inherent limitations inall control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, have been detected. Based upon that evaluation at December 31, 2021, our Chief Executive Officer and our Chief Financial Officer concluded that our disclosure controls and procedureswere effective to ensure, at the reasonable assurance level, that information required to be disclosed by us in the reports that we file or submit under the Exchange Act isrecorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms and were effective in ensuring that information required tobe disclosed by us in the reports that we file or submit under the Exchange Act was accumulated and communicated to our management, including our Chief ExecutiveOfficer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. Management's Report on Internal Control over Financial Reporting. Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rules 13a-15(f) and 15d-15(f). Under the supervision and with the participation of our management, including our principal executive officer and our principal financial officer, weconducted an evaluation of the effectiveness of our internal control over financial reporting as of December 31, 2021 for non-DERMAdoctor operations. Ourmanagement utilized the criteria set forth in "Internal Control-Integrated Framework (2013)" issued by the Committee of Sponsoring Organizations of the TreadwayCommission to conduct an assessment of the effectiveness of our internal control over financial reporting as of December 31, 2021 for non-DERMAdoctor operations.Our management has concluded that, as of December 31, 2021, our internal control over financial reporting was effective based on these criteria for non-DERMAdoctoroperations. The Company has one year to evaluate the Internal Control over Financial Reporting for the DERMAdoctor organization. Changes in Internal Control Over Financial Reporting There were no changes in our internal control over financial reporting which has materially affected, or are reasonably likely to materially affect, our internal control overfinancial reporting. ITEM 9B.OTHER INFORMATION On March 23, 2022, the Company’s Board authorized amendments to, and restatement of, the Company’s Bylaws (the “Amended and Restated Bylaws”). In addition tocertain administrative updates, the Company’s Amended and Restated Bylaws include the following amendments: ●Updates to Article XI (Indemnification) to indemnify directors to the fullest extent permitted by Delaware law. ●Adding a new Section 48 (Exclusive Forums for Adjudication of Disputes) to provide that the Delaware Court of Chancery shall be the exclusive forumfor derivative actions, actions for breach of fiduciary duty, actions pursuant to the Delaware General Corporation, the Company’s Certificate ofIncorporation or the Amended and Restated Bylaws or actions under the internal affairs doctrine. This provision does not relate to suits under theSecurities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other claim for which the federal courts have exclusivejurisdiction. The directors believe that the above amendments will better assist the Company in attracting qualified directors and officers as well as prevent forum shopping. Theabove summary does not purport to be complete and is qualified in its entirety by reference to the Amended and Restated Bylaws, a copy of which is filed as Exhibit 3.7to this Annual Report on Form 10-K and is incorporated herein by reference. ITEM 9C.DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS Not applicable. 67Table of Contents PART III ITEM 10.DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE The information required by this item will be included in our Proxy Statement for the 2022 Annual Meeting of Stockholders (the “2022 Proxy Statement”) and isincorporated herein by reference. ITEM 11.EXECUTIVE COMPENSATION The information required by this item will be included in the 2022 Proxy Statement and is incorporated herein by reference. ITEM 12.SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS The information required by this item will be included in the 2022 Proxy Statement and is incorporated herein by reference. ITEM 13.CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE The information required by this item will be included in the 2022 Proxy Statement and is incorporated herein by reference. ITEM 14.PRINCIPAL ACCOUNTANT FEES AND SERVICES The information required by this item will be included in the 2022 Proxy Statement and is incorporated herein by reference. 68Table of Contents PART IV ITEM 15.EXHIBITS, FINANCIAL STATEMENT SCHEDULES (a) Documents filed as part of this report: (1) Financial Statements. The financial statements listed in the Index for Item 8 hereof are filed as part of this report. (2) Financial Statement Schedules. All schedules have been omitted because they are not required or the required information is included in our consolidated financialstatements and notes thereto. (3) Exhibits. The following exhibits are filed as part of this Report: Incorporation by ReferenceFiledHerewithExhibitNumberExhibit DescriptionFormFileNumberExhibit/Form 8-KItemReferenceFilingDate 2.1Membership Unit Purchase Agreement dated September 27, 2021, by andamong the Company, DERMAdoctor, the Founders and the Sellers (asdefined therein)8-K001-36782.19/28/2021 3.1Amended and Restated Certificate of Incorporation of NovaBayPharmaceuticals, Inc.10-K001-336783.13/21/2018 3.2Amendment to the Amended and Restated Certificate of Incorporation8-K001-336783.16/04/2018 3.3Amendment to the Amended and Restated Certificate of Incorporation, asamended8-K001-336783.15/28/2020 3.4Amendment to the Amended and Restated Certificate of Incorporation, asamended, dated May 24, 20218-K001-336783.15/24/2021 3.5Amendment to the Amended and Restated Certificate of Incorporation, asamended, dated January 31, 20228-K001-336783.12/1/2022 3.6Certificate of Designation for the Series B Preferred Stock8-K001-336783.111/1/2021 3.7Amended and Restated Bylaws X4.1Description of Securities X4.2Form of Warrant pursuant to the Services Agreement with TLF BioInnovation Lab, LLC, dated May 13, 20208-K001-336784.15/18/2020 4.3Form of July 2020 Warrant8-K001-336784.17/21/2020 4.4Form of November 2021 Warrant8-K001-336784.111/01/2021 10.1+Director and Officer Indemnity Agreement X10.2+NovaBay Pharmaceuticals, Inc. 2007 Omnibus Incentive Plan (as amendedand restated)S-8333-21568099.11/24/2017 10.3+NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive PlanS-8333-21846999.16/02/2017 10.4+NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive Plan (FormAgreements to the 2017 Omnibus Incentive Plan)S-8333-21846999.26/02/2017 69Table of Contents 10.5+Executive Employment Agreement (Employment Agreement of Justin M. Hall)8-K001-3367810.12/6/2020 10.6+First Amendment to the Executive Employment Agreement with Justin M.Hall, dated January 26, 20228-K001-3367810.61/28/2022 10.7+*Performance Restricted Stock Unit Award Agreement with Mr. Justin Hall10-Q001-3367810.15/6/2021 10.8+Executive Employment Agreement (Employment Agreement of Andrew D.Jones)8-K001-3367810.85/5/2020 10.9+*Performance Restricted Stock Unit Award Agreement with Mr. Andrew Jones10-Q001-3367810.25/6/2021 10.10+Executive Employment Agreement with Dr. Audrey Kunin, dated November 5,20218-K001-3367810.111/12/2021 10.11+Side Letter with Dr. Audrey Kunin, dated November 5, 20218-K001-3367810.311/12/2021 10.12+*Performance Restricted Stock Unit Award Agreement with Dr. Audrey Kunin8-K001-3367810.411/12/2021 10.13+Executive Employment Agreement with Dr. Jeff Kunin, dated November 5,20218-K001-3367810.211/12/2021 10.14+Consulting Agreement between the Company and Eric Wu, dated November17, 20208-K001-3367810.111/18/2020 10.15+2022 Non-Employee Director Compensation Plan X10.16Office Lease (between the Company and KBSIII Towers at Emeryville, LLC)8-K001-3367810.18/26/2016 10.17First Amendment to Office Lease by and between the Company and KBSIIITowers at Emeryville, LLC, dated January 24, 20228-K001-3367810.21/28/2022 10.18†International Distribution Agreement (by and between the Company andPioneer Pharma Co. Ltd.)10-K001-3367810.183/27/2012 10.19At the Market Offering Agreement between the Company and LadenburgThalmann & Co. Inc., dated April 27, 20208-K001-336781.14/27/2020 10.20At the Market Offering Agreement between the Company and LadenburgThalmann & Co. Inc., dated May 14, 20218-K001-336781.15/14/2021 10.21Paycheck Protection Program Promissory Note and Agreement, dated May 3,2020, between the Company and Wells Fargo Bank, N.A.10-Q001-3367810.285/7/2020 10.22Form of Exercise Agreement with Holders of 2019 Domestic Warrants8-K001-3367810.17/21/2020 10.23Form of Exercise Agreement with Holders of 2019 Foreign Warrants8-K001-3367810.27/21/2020 10.24Form of Reprice Agreement with Ladenburg8-K001-3367810.37/21/2020 70Table of Contents 10.25Form of Securities Purchase Agreement, dated October 29, 20218-K001-336781.111/01/2021 10.26Form of Registration Rights Agreement, dated October 29, 20218-K001-3367810.111/01/2021 21Subsidiaries of the Company X23.1Consent of WithumSmith+Brown PC X23.2Consent of OUM & Co. LLP X31.1Certification of the Principal Executive Officer of NovaBay Pharmaceuticals,Inc., as required by Rule 13a-14(a) or Rule 15d-14(a) X31.2Certification of the Principal Financial Officer of NovaBay Pharmaceuticals,Inc., as required by Rule 13a-14(a) or Rule 15d-14(a) X32.1Certification by the Chief Executive Officer of NovaBay Pharmaceuticals, Inc.,as required by Rule 13a-14(b) or 15d-14(b) and Section 1350 of Chapter 63 ofTitle 18 of the United States Code (18 U.S.C. 1350) X32.2Certification by the Chief Financial Officer of NovaBay Pharmaceuticals, Inc.,as required by Rule 13a-14(b) or 15d-14(b) and Section 1350 of Chapter 63 ofTitle 18 of the United States Code (18 U.S.C. 1350) X101.INSInline XBRL Instance Document X101.SCHInline XBRL Taxonomy Extension Schema Document X101.CALInline XBRL Taxonomy Extension Calculation Linkbase Document X101.DEFInline XBRL Taxonomy Extension Definition Linkbase X101.LABInline XBRL Taxonomy Extension Labels Linkbase Document X101.PREInline XBRL Taxonomy Extension Presentation Linkbase Document X104The Cover Page Interactive Data File, formatted in Inline XBRL (includedwithin the Exhibit 101 attachments) X +Indicates a management contract or compensatory plan or arrangement†NovaBay Pharmaceuticals, Inc. has been granted confidential treatment with respect to certain portions of this exhibit (indicated by asterisks), which have beenseparately filed with the Securities and Exchange Commission.*Certain confidential portions of this exhibit were omitted by means of marking such portions with brackets because the confidential portions (i) are not material and(ii) would be competitively harmful if publicly disclosed. 71Table of Contents SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report on Form 10-K to be signed on itsbehalf by the undersigned, thereunto duly authorized. Date: March 29, 2022 By:/s/ Justin Hall Justin Hall Chief Executive Officer, General Counsel and Director(principal executive officer) Date: March 29, 2022 By:/s/ Andrew Jones Andrew Jones Andrew JonesChief Financial Officer(principal financial officer) POWER OF ATTORNEY We, the undersigned officers and directors of NovaBay Pharmaceuticals, Inc., do hereby constitute and appoint Justin Hall and Andrew Jones, and each of them, ourtrue and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities,to sign any and all amendments to this report, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and ExchangeCommission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite ornecessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby, ratifying and confirming all that each ofsaid attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Exchange Act of 1934, this report on Form 10-K has been signed below by the following persons on behalf of theregistrant in the capacities and on the dates indicated: Signature TitleDate /s/ JUSTIN HALL Chief Executive Officer, General Counseland DirectorMarch 29, 2022Justin Hall (principal executive officer) /s/ ANDREW JONES Chief Financial OfficerMarch 29, 2022Andrew Jones (principal financial officer) /s/ PAUL E. FREIMAN Chairman of the BoardMarch 29, 2022Paul E. Freiman /s/ JULIE GARLIKOV DirectorMarch 29, 2022Julie Garlikov /s/ AUDREY KUNIN DirectorMarch 29, 2022Audrey Kunin /s/ XINZHOU LI DirectorMarch 29, 2022Xinzhou Li (Paul Li) /s/ SWAN SIT DirectorMarch 29, 2022Swan Sit /s/ MIJIA WU DirectorMarch 29, 2022Mijia Wu, M.B.A. (Bob Wu) /s/ YENYOU ZHENG DirectorMarch 29, 2022Yenyou (Jeff) Zheng 72Exhibit 3.7 BYLAWS OF NOVABAY PHARMACEUTICALS, INC. (A DELAWARE CORPORATION) (as amended and restated effective March 23, 2022) TABLE OF CONTENTS PageARTICLE I OFFICES1Section 1.Registered Office1Section 2.Other Offices1ARTICLE II CORPORATE SEAL1Section 3.Corporate Seal1ARTICLE III STOCKHOLDERS’ MEETINGS1Section 4.Place of Meetings1Section 5.Annual Meetings1Section 6.Special Meetings5Section 7.Notice of Meetings6Section 8.Quorum and Voting Standards7Section 9.Adjournment And Notice of Adjourned Meetings7Section 10.Voting Rights8Section 11.Joint Owners of Stock8Section 12.List of Stockholders8Section 13.Action Without Meeting9Section 14.Organization9ARTICLE IV DIRECTORS9Section 15.Number And Term of Office9Section 16.Powers9Section 17.Classes of Directors10Section 18.Vacancies10Section 19.Resignation10Section 20.Removal11Section 21.Meetings11Section 22.Quorum And Voting12Section 23.Action Without Meeting12Section 24.Fees And Compensation12Section 25.Committees12Section 26.Chair of the Board; Lead Independent Director14Section 27.Organization14ARTICLE V OFFICERS14Section 28.Officers Designated14 - i - TABLE OF CONTENTS(continued) PageSection 29.Tenure And Duties of Officers15Section 30.Delegation of Authority16Section 31.Resignations16Section 32.Removal16ARTICLE VI EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE CORPORATION17Section 33.Execution of Corporate Instruments17Section 34.Voting of Securities Owned By The Corporation17ARTICLE VII SHARES OF STOCK17Section 35.Form And Execution of Certificates17Section 36.Lost Certificates18Section 37.Transfers18Section 38.Fixing Record Dates19Section 39.Registered Stockholders19ARTICLE VIII OTHER SECURITIES OF THE CORPORATION19Section 40.Execution of Other Securities19ARTICLE IX DIVIDENDS20Section 41.Declaration of Dividends20Section 42.Dividend Reserve20ARTICLE X FISCAL YEAR20Section 43.Fiscal Year20ARTICLE XI INDEMNIFICATION20Section 44.Indemnification of Directors, Officers, Employees and Other Agents20ARTICLE XII NOTICES23Section 45.Notices23ARTICLE XIII AMENDMENTS25Section 46.Amendments25ARTICLE XIV MISCELLANEOUS25Section 47.Loans To Officers25Section 48.Exclusive Forums for Adjudication of Disputes25 - ii - BYLAWSOFNOVABAY PHARMACEUTICALS, INC.(A DELAWARE CORPORATION) ARTICLE I OFFICES Section 1. Registered Office. The registered office of the corporation in the State of Delaware shall be in the City of Wilmington, County of Newcastle. Section 2. Other Offices. The corporation shall also have and maintain an office or principal place of business at such place, either within or without theState of Delaware, as may be fixed from time to time by the Board of Directors, and may also have offices at such other places, either within and without the State ofDelaware, as the Board of Directors may from time to time determine or the business of the corporation may require. ARTICLE II CORPORATE SEAL Section 3. Corporate Seal. The Board of Directors may adopt a corporate seal. The corporate seal, if adopted, shall consist of a die bearing the name of thecorporation and the inscription, “Corporate Seal-Delaware.” Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced orotherwise. ARTICLE III STOCKHOLDERS’ MEETINGS Section 4. Place of Meetings. Meetings of the stockholders of the corporation may be held at such place, either within or without the State of Delaware, asmay be determined from time to time by the Board of Directors. The Board of Directors may, in its sole discretion, determine that the meeting shall not be held at anyplace, but may instead be held solely by means of remote communication as provided under the Delaware General Corporation Law (“DGCL”). Section 5. Annual Meetings. (a) The annual meeting of the stockholders of the corporation, for the purpose of election of directors and for such other business as may properlycome before the meeting, shall be held on such date and at such time as may be designated from time to time by the Board of Directors. Nominations of persons forelection to the Board of Directors of the corporation and the proposal of business to be considered by the stockholders may be made at an annual meeting ofstockholders: (i) pursuant to the corporation’s notice of meeting of stockholders (with respect to business other than nominations); (ii) brought specifically by or at thedirection of the Board of Directors; or (iii) by any stockholder of the corporation who was a stockholder of record at the time of giving the stockholder’s notice providedfor in Section 5(b) below, who is entitled to vote at the meeting and who complied with the notice procedures set forth in Section 5. For the avoidance of doubt,clause (iii) above shall be the exclusive means for a stockholder to make nominations and submit other business (other than matters properly included in thecorporation’s notice of meeting of stockholders and proxy statement under Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and the rules andregulations thereunder (the “1934 Act”)) before an annual meeting of stockholders. (b) At an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder action under Delaware lawand as shall have been properly brought before the meeting. (i) For nominations for the election to the Board of Directors to be properly brought before an annual meeting by a stockholder pursuant toclause (iii) of Section 5(a) of these Bylaws, the stockholder must deliver written notice to the Secretary at the principal executive offices of the corporation on atimely basis as set forth in Section 5(b)(iii) and must update and supplement such written notice on a timely basis as set forth in Section 5(c). Suchstockholder’s notice shall set forth: (A) as to each nominee such stockholder proposes to nominate at the meeting: (1) the name, age, business address andresidence address of such nominee, (2) the principal occupation or employment of such nominee, (3) the class and number of shares of each class of capitalstock of the corporation which are owned of record and beneficially by such nominee, (4) the date or dates on which such shares were acquired and theinvestment intent of such acquisition, (5) a statement whether such nominee, if elected, intends to tender a resignation, promptly following such person’sfailure to receive the required vote for election or re-election at the next meeting at which such person would face election or re-election, and (6) such otherinformation concerning such nominee as would be required to be disclosed in a proxy statement soliciting proxies for the election of such nominee as a directorin an election contest (even if an election contest is not involved), or that is otherwise required to be disclosed pursuant to Section 14 of the 1934 Act and therules and regulations promulgated thereunder (including such person’s written consent to being named as a nominee and to serving as a director if elected);and (B) the information required by Section 5(b)(iv). The corporation may require any proposed nominee to furnish such other information as it may reasonablyrequire to determine the eligibility of such proposed nominee to serve as an independent director of the corporation or that could be material to a reasonablestockholder’s understanding of the independence or lack thereof, of such proposed nominee. (ii) Other than proposals sought to be included in the corporation’s proxy materials pursuant to Rule 14(a)-8 under the 1934 Act, forbusiness other than nominations for the election to the Board of Directors to be properly brought before an annual meeting by a stockholder pursuant toclause (iii) of Section 5(a) of these Bylaws, the stockholder must deliver written notice to the Secretary at the principal executive offices of the corporation on atimely basis as set forth in Section 5(b)(iii), and must update and supplement such written notice on a timely basis as set forth in Section 5(c). Suchstockholder’s notice shall set forth: (A) as to each matter such stockholder proposes to bring before the meeting, a brief description of the business desired tobe brought before the meeting, the reasons for conducting such business at the meeting, and any material interest (including any anticipated benefit of suchbusiness to any Proponent (as defined below) other than solely as a result of its ownership of the corporation’s capital stock, that is material to any Proponentindividually, or to the Proponents in the aggregate) in such business of any Proponent; and (B) the information required by Section 5(b)(iv). - 2 - (iii) To be timely, the written notice required by Section 5(b)(i) or 5(b)(ii) must be received by the Secretary at the principal executive officesof the corporation not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth (120th)day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that, subject to the last sentence of this Section 5(b)(iii), in theevent that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty (30) days after the anniversary of thepreceding year’s annual meeting, notice by the stockholder to be timely must be so received no earlier than the close of business on the one hundred twentieth(120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or thetenth (10th) day following the day on which public announcement of the date of such meeting is first made. In no event shall an adjournment or apostponement of an annual meeting for which notice has been given, or the public announcement thereof has been made, commence a new time period for thegiving of a stockholder’s notice as described above. (iv) The written notice required by Section 5(b)(i) or 5(b)(ii) shall also set forth, as of the date of the notice and as to the stockholder givingthe notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (each, a “Proponent” and collectively, the “Proponents”): (A)the name and address of each Proponent, as they appear on the corporation’s books; (B) the class, series and number of shares of the corporation that areowned beneficially and of record by each Proponent; (C) a description of any agreement, arrangement or understanding (whether oral or in writing) with respectto such nomination or proposal between or among any Proponent and any of its affiliates or associates, and any others (including their names) acting inconcert, or otherwise under the agreement, arrangement or understanding, with any of the foregoing; (D) a representation that the Proponents are holders ofrecord or beneficial owners, as the case may be, of shares of the corporation entitled to vote at the meeting and intend to appear in person or by proxy at themeeting to nominate the person or persons specified in the notice (with respect to a notice under Section 5(b)(i)) or to propose the business that is specified inthe notice (with respect to a notice under Section 5(b)(ii)); (E) a representation as to whether the Proponents intend to deliver a proxy statement and form ofproxy to holders of a sufficient number of holders of the corporation’s voting shares to elect such nominee or nominees (with respect to a notice underSection 5(b)(i)) or to carry such proposal (with respect to a notice under Section 5(b)(ii)); (F) to the extent known by any Proponent, the name and address ofany other stockholder supporting the proposal on the date of such stockholder’s notice; and (G) a description of all Derivative Transactions (as defined below)by each Proponent during the previous twelve (12) month period, including the date of the transactions and the class, series and number of securities involvedin, and the material economic terms of, such Derivative Transactions. - 3 - For purposes of this Section 5 a “Derivative Transaction” means any agreement, arrangement, interest or understanding entered into by, or on behalf or for thebenefit of, any Proponent or any of its affiliates or associates, whether record or beneficial: (w) the value of which is derived in whole or in part from the value of any class or series of shares or other securities of the corporation, (x) which otherwise provides any direct or indirect opportunity to gain or share in any gain derived from a change in the value of securities of thecorporation, (y) the effect or intent of which is to mitigate loss, manage risk or benefit of security value or price changes, or (z) which provides the right to vote or increase or decrease the voting power of, such Proponent, or any of its affiliates or associates, with respectto any securities of the corporation, which agreement, arrangement, interest or understanding may include, without limitation, any option,warrant, debt position, note, bond, convertible security, swap, stock appreciation right, short position, profit interest, hedge, right todividends, voting agreement, performance-related fee or arrangement to borrow or lend shares (whether or not subject to payment,settlement, exercise or conversion in any such class or series), and any proportionate interest of such Proponent in the securities of thecorporation held by any general or limited partnership, or any limited liability company, of which such Proponent is, directly or indirectly, ageneral partner or managing member. (c) A stockholder providing written notice required by Section 5(b)(i) or (ii) shall update and supplement such notice in writing, if necessary, so thatthe information provided or required to be provided in such notice is true and correct in all material respects as of (i) the record date for notice of the meeting and (ii) thedate that is five (5) business days prior to the meeting and, in the event of any adjournment or postponement thereof, five (5) business days prior to such adjourned orpostponed meeting. In the case of an update and supplement pursuant to clause (i) of this Section 5(c), such update and supplement shall be received by the Secretaryat the principal executive offices of the corporation not later than five (5) business days after the record date for notice of the meeting. In the case of an update andsupplement pursuant to clause (ii) of this Section 5(c), such update and supplement shall be received by the Secretary at the principal executive offices of thecorporation not later than two (2) business days prior to the date for the meeting, and, in the event of any adjournment or postponement thereof, two (2) business daysprior to such adjourned or postponed meeting. - 4 - (d) Notwithstanding anything in Section 5(b)(iii) to the contrary, in the event that the number of directors in an Expiring Class is increased and thereis no public announcement of the appointment of a director to such class, or, if no appointment was made, of the vacancy in such class, made by the corporation at leastten (10) days before the last day a stockholder may deliver a notice of nomination in accordance with Section 5(b)(iii), a stockholder’s notice required by this Section 5and which complies with the requirements in Section 5(b)(i), other than the timing requirements in Section 5(b)(iii), shall also be considered timely, but only with respectto nominees for any new positions in such Expiring Class created by such increase, if it shall be received by the Secretary at the principal executive offices of thecorporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the corporation. Forpurposes of this section, an “Expiring Class” shall mean a class of directors whose term shall expire at the next annual meeting of stockholders. (e) A person shall not be eligible for election or re-election as a director unless the person is nominated either in accordance with clause (ii) ofSection 5(a), or in accordance with clause (iii) of Section 5(a). Only such business shall be conducted at an annual meeting as shall have been brought before themeeting in accordance with the procedures set forth in this section. Except as otherwise required by law, the chair of the meeting shall have the power and duty todetermine whether a nomination or any business proposed to be brought before the meeting was made, or proposed, as the case may be, in accordance with theprocedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, or the Proponent does not act in accordancewith the representations in Sections 5(b)(iv)(D) and 5(b)(iv)(E), to declare that such proposal or nomination shall not be presented for stockholder action at the meetingand shall be disregarded, notwithstanding that proxies in respect of such nominations or such business may have been solicited or received. (f) Notwithstanding the foregoing provisions of this Section 5, in order to include information with respect to a stockholder proposal in the proxystatement and form of proxy for a stockholders’ meeting, a stockholder must also comply with all applicable requirements of the 1934 Act and the rules and regulationsthereunder. Nothing in these Bylaws shall be deemed to affect any rights of stockholders to request inclusion of proposals in the corporation’s proxy statementpursuant to Rule 14a-8 under the 1934 Act; provided, however, that any references in these Bylaws to the 1934 Act or the rules and regulations thereunder are notintended to and shall not limit the requirements applicable to proposals and/or nominations to be considered pursuant to Section 5(a)(iii) of these Bylaws. (g) For purposes of Sections 5 and 6, (i) “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press orcomparable national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or15(d) of the 1934 Act; and (ii) “affiliates” and “associates” shall have the meanings set forth in Rule 405 under the Securities Act of 1933, as amended (the “1933Act”). Section 6. Special Meetings. (a) Special meetings of the stockholders of the corporation may be called, for any purpose as is a proper matter for stockholder action underDelaware law, by the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist anyvacancies in previously authorized directorships at the time any such resolution is presented to the Board of Directors for adoption). - 5 - (b) For a special meeting called pursuant to Section 6(a), the Board of Directors shall determine the time and place of such special meeting. Followingdetermination of the time and place of the meeting, the Secretary shall cause a notice of meeting to be given to the stockholders entitled to vote, in accordance with theprovisions of Section 7 of these Bylaws. No business may be transacted at a special meeting otherwise than as specified in the notice of meeting. (c) Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to beelected (i) by or at the direction of the Board of Directors or (ii) by any stockholder of the corporation who is a stockholder of record at the time of giving noticeprovided for in this paragraph, who shall be entitled to vote at the meeting and who delivers written notice to the Secretary of the corporation setting forth theinformation required by Section 5(b)(i). In the event the corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Boardof Directors, any such stockholder of record may nominate a person or persons (as the case may be), for election to such position(s) as specified in the corporation’snotice of meeting, if written notice setting forth the information required by Section 5(b)(i) of these Bylaws shall be received by the Secretary at the principal executiveoffices of the corporation not later than the close of business on the later of the ninetieth (90th) day prior to such meeting or the tenth (10th) day following the day onwhich public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. Thestockholder shall also update and supplement such information as required under Section 5(c). In no event shall an adjournment or a postponement of a special meetingfor which notice has been given, or the public announcement thereof has been made, commence a new time period for the giving of a stockholder’s notice as describedabove. (d) Notwithstanding the foregoing provisions of this Section 6, a stockholder must also comply with all applicable requirements of the 1934 Act andthe rules and regulations thereunder with respect to matters set forth in this Section 6. Nothing in these Bylaws shall be deemed to affect any rights of stockholders torequest inclusion of proposals in the corporation’s proxy statement pursuant to Rule 14a-8 under the 1934 Act; provided, however, that any references in these Bylawsto the 1934 Act or the rules and regulations thereunder are not intended to and shall not limit the requirements applicable to nominations for the election to the Board ofDirectors to be considered pursuant to Section 6(c) of these Bylaws. Section 7. Notice of Meetings. Except as otherwise provided by law, notice, given in writing or by electronic transmission in the manner provided inSection 232 of the DGCL, of each meeting of stockholders shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to eachstockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting, such notice to specify the place, ifany, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person andvote at any such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determiningthe stockholders entitled to notice of the meeting and, in the case of special meetings, the purpose or purposes of the meeting. If mailed, notice is given when depositedin the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the corporation. Notice of the time,place, if any, and purpose of any meeting of stockholders may be waived in writing, signed by the person entitled to notice thereof, or by electronic transmission bysuch person, either before or after such meeting, and will be waived by any stockholder by his or her attendance thereat in person, by remote communication, ifapplicable, or by proxy, except when the stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of anybusiness because the meeting is not lawfully called or convened. Any stockholder so waiving notice of such meeting shall be bound by the proceedings of any suchmeeting in all respects as if due notice thereof had been given. - 6 - Section 8. Quorum and Voting Standards. At all meetings of stockholders, except where otherwise provided by statute or by the Certificate of Incorporation,or by these Bylaws, the presence, in person, by remote communication, if applicable, or by proxy duly authorized, of the holders of a majority of the voting power of allof the outstanding shares of stock entitled to vote shall constitute a quorum for the transaction of business. In the absence of a quorum, any meeting of stockholdersmay be adjourned, from time to time, either by the chair of the meeting or by vote of the holders of a majority of the voting power of the shares represented thereat, butno other business shall be transacted at such meeting. The stockholders present at a duly called or convened meeting, at which a quorum is present, may continue totransact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Except as otherwise provided by statute or byapplicable stock exchange rules, or by the Certificate of Incorporation or these Bylaws, in all matters other than the election of directors, the affirmative vote of themajority of the voting power of shares present in person, by remote communication, if applicable, or represented by proxy at the meeting and entitled to vote generallyon the subject matter shall be the act of the stockholders. Except as otherwise provided by statute, the Certificate of Incorporation or these Bylaws, directors shall beelected by a plurality of the votes of the shares present in person, by remote communication, if applicable, or represented by proxy at the meeting and entitled to votegenerally on the election of directors. Where a separate vote by a class or classes or series is required, except where otherwise provided by the statute or by theCertificate of Incorporation or these Bylaws, a majority of the voting power of the outstanding shares of such class or classes or series, present in person, by remotecommunication, if applicable, or represented by proxy duly authorized, shall constitute a quorum entitled to take action with respect to that vote on that matter. Exceptwhere otherwise provided by statute or by the Certificate of Incorporation or these Bylaws, the affirmative vote of the majority (plurality, in the case of the election ofdirectors) of the voting power of the shares of such class or classes or series present in person, by remote communication, if applicable, or represented by proxy at themeeting shall be the act of such class or classes or series. Section 9. Adjournment And Notice of Adjourned Meetings. Any meeting of stockholders, whether annual or special, may be adjourned from time to timeeither by the chair of the meeting or by the vote of a majority of the voting power of the shares present in person, by remote communication, if applicable, or representedby proxy at the meeting. When a meeting is adjourned to another time or place, if any, notice need not be given of the adjourned meeting if the time and place, if any,thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjournedmeeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business which might have beentransacted at the original meeting. If the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of recordentitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shallfix a new record date for notice of such adjourned meeting in accordance with Section 38 hereof, and shall give notice of the adjourned meeting to each stockholder ofrecord entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting. - 7 - Section 10. Voting Rights. For the purpose of determining those stockholders entitled to vote at any meeting of the stockholders, except as otherwiseprovided by law, only persons in whose names shares stand on the stock records of the corporation on the record date, as provided in Section 12 of these Bylaws, shallbe entitled to vote at any meeting of stockholders. Every person entitled to vote shall have the right to do so either in person, by remote communication, if applicable, orby an agent or agents authorized by a proxy granted in accordance with Delaware law. An agent so appointed need not be a stockholder. No proxy shall be voted oracted upon after three (3) years from its date of creation unless the proxy provides for a longer period. Section 11. Joint Owners of Stock. If shares or other securities having voting power stand of record in the names of two (2) or more persons, whetherfiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety, or otherwise, or if two (2) or more persons have the same fiduciaryrelationship respecting the same shares, unless the Secretary is given written notice to the contrary and is furnished with a copy of the instrument or order appointingthem or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect: (a) if only one (1) person votes, his or her actbinds all; (b) if more than one (1) vote, the act of the majority so voting binds all; or (c) if more than one (1) person votes, but the vote is evenly split on any particularmatter, each faction may vote the securities in question proportionally, or any person voting the shares, or a beneficiary, if any, may apply to the Delaware Court ofChancery or such other court as may have jurisdiction for relief as provided in the DGCL, Section 217(b). If the instrument filed with the Secretary shows that any suchtenancy is held in unequal interests, a majority or even-split for the purpose of subsection (c) shall be a majority or even-split in interest. Section 12. List of Stockholders. The officer who has charge of the stock ledger of the corporation or the transfer agent shall prepare and make, at least ten(10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at said meeting; provided, however, if the record date for determiningthe stockholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day beforethe meeting date, arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such listshall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least ten (10) days prior to the meeting (a) on areasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) duringordinary business hours, at the principal place of business of the corporation. In the event that the corporation determines to make the list available on an electronicnetwork, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. If the meeting is to be held at aplace, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof and may beexamined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then such list shall be open to examination of anystockholder during the whole time of the meeting on a reasonably accessible electronic network and the information required to access such list shall be provided withthe notice of the meeting. - 8 - Section 13. Action Without Meeting. No action shall be taken by the stockholders except at an annual or special meeting of stockholders called in accordance with these Bylaws, and no action shallbe taken by the stockholders by written consent or by electronic transmission. Section 14. Organization. (a) At every meeting of stockholders, the Chair of the Board of Directors, or, if a Chair has not been appointed or is absent, the President, or, if thePresident is absent, a chair of the meeting chosen by a majority of the voting power of the shares, present in person, by remote communication, if applicable, orrepresented by proxy at the meeting and entitled to vote shall act as chair. The Secretary, or, in his or her absence, any other person directed to do so by the chair of themeeting, shall act as secretary of the meeting. (b) The Board of Directors of the corporation shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as itshall deem necessary, appropriate or convenient. Subject to such rules and regulations of the Board of Directors, if any, the chair of the meeting shall have the right andauthority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chair, are necessary, appropriate or convenient for theproper conduct of the meeting, including, without limitation, establishing an agenda or order of business for the meeting, rules and procedures for maintaining order atthe meeting and the safety of those present, limitations on participation in such meeting to stockholders of record of the corporation and their duly authorized andconstituted proxies and such other persons as the chair shall permit, restrictions on entry to the meeting after the time fixed for the commencement thereof, limitations onthe time allotted to questions or comments by participants and regulation of the opening and closing of the polls for balloting on matters which are to be voted on byballot. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.Unless and to the extent determined by the Board of Directors or the chair of the meeting, meetings of stockholders shall not be required to be held in accordance withrules of parliamentary procedure. ARTICLE IV DIRECTORS Section 15. Number And Term of Office. The authorized number of directors of the corporation shall be fixed in accordance with the Certificate ofIncorporation. Section 16. Powers. The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors, except as may beotherwise provided by statute or by the Certificate of Incorporation. - 9 - Section 17. Classes of Directors. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specifiedcircumstances, the directors shall be divided into three classes designated as Class I, Class II and Class III, respectively. At the first annual meeting of stockholdersfollowing the initial classification of the Board of Directors, the term of office of the Class I directors shall expire and Class I directors shall be elected for a full term ofthree years. At the second annual meeting of stockholders following such initial classification, the term of office of the Class II directors shall expire and Class IIdirectors shall be elected for a full term of three years. At the third annual meeting of stockholders following such initial classification, the term of office of the Class IIIdirectors shall expire and Class III directors shall be elected for a full term of three years. At each succeeding annual meeting of stockholders, directors shall be electedfor a full term of three years to succeed the directors of the class whose terms expire at such annual meeting. Notwithstanding the foregoing provisions of this section, each director shall serve until his or her successor is duly elected and qualified or until his or herearlier death, resignation or removal. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. Section 18. Vacancies. (a) Unless otherwise provided in the Certificate of Incorporation or by applicable law, and subject to the rights of the holders of any series ofPreferred Stock, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other causes and any newly created directorshipsresulting from any increase in the number of directors shall, unless the Board of Directors determines by resolution that any such vacancies or newly createddirectorships shall be filled by stockholders, be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of theBoard of Directors, or by a sole remaining director, and not by the stockholders, provided, however, that whenever the holders of any class or classes of stock or seriesthereof are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, vacancies and newly created directorships of such class orclasses or series shall, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by stockholders, befilled by a majority of the directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected, and not by thestockholders. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancywas created or occurred and until such director’s successor shall have been elected and qualified. A vacancy in the Board of Directors shall be deemed to exist underthis Section 18 in the case of the death, removal or resignation of any director. Section 19. Resignation. Any director may resign at any time by delivering his or her notice in writing or by electronic transmission to the Secretary, suchresignation to specify whether it will be effective at a particular time. If no such specification is made, it shall be deemed effective upon receipt by the Secretary. Whenone or more directors shall resign from the Board of Directors, effective at a future date, a majority of the directors then in office, including in these "directors then inoffice" who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall becomeeffective, and each Director so chosen shall hold office for the unexpired portion of the term of the Director whose place shall be vacated and until his or her successorshall have been duly elected and qualified. - 10 - Section 20. Removal. (a) Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, neither the Boardof Directors nor any individual director or directors may be removed without cause. (b) Subject to any limitation imposed by law, any individual director or directors may be removed with cause by the affirmative vote of the holders ofa majority of the voting power of all then outstanding shares of capital stock of the corporation entitled to vote generally at an election of directors. Section 21. Meetings. (a) Regular Meetings. Unless otherwise restricted by the Certificate of Incorporation, regular meetings of the Board of Directors may be held at anytime or date and at any place within or without the State of Delaware which has been designated by the Board of Directors and publicized among all directors, eitherorally or in writing, by telephone, including a voice-messaging system or other system designed to record and communicate messages, facsimile, telegraph or telex, or byelectronic mail or other means of electronic transmission. No further notice shall be required for regular meetings of the Board of Directors. (b) Special Meetings. Unless otherwise restricted by the Certificate of Incorporation, special meetings of the Board of Directors may be held at anytime and place within or without the State of Delaware whenever called by the Chair of the Board, the Chief Executive Officer, any Vice President, the Secretary or anytwo directors. (c) Meetings by Electronic Communications Equipment. Any member of the Board of Directors, or of any committee thereof, may participate in ameeting by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, andparticipation in a meeting by such means shall constitute presence in person at such meeting. (d) Notice of Special Meetings. Notice of the time and place of all special meetings of the Board of Directors shall be delivered orally or in writing, bytelephone, including a voice messaging system or other system or technology designed to record and communicate messages, facsimile, telegraph or telex, or byelectronic transmission, during normal business hours, at least twenty-four (24) hours before the date and time of the meeting. If notice is sent by US mail, it shall besent by first class mail, charges prepaid, at least three (3) days before the date of the meeting. (e) Waiver of Notice. Notice of any meeting may be waived in writing, or by electronic transmission, at any time before or after the meeting and willbe waived by any director by attendance thereat, except when the director attends the meeting for the express purpose of objecting, at the beginning of the meeting, tothe transaction of any business because the meeting is not lawfully called or convened. The transaction of all business at any meeting of the Board of Directors, or anycommittee thereof, however called or noticed, or wherever held, shall be as valid as though it had been transacted at a meeting duly held after regular call and notice, if aquorum be present and if, either before or after the meeting, each of the directors not present who did not receive notice shall sign a written waiver of notice or shallwaive notice by electronic transmission. All such waivers shall be filed with the corporate records or made a part of the minutes of the meeting. - 11 - Section 22. Quorum And Voting. (a) Unless the Certificate of Incorporation requires a greater number, and except with respect to questions related to indemnification arising underSection 44 for which a quorum shall be one-third of the total number of directors fixed from time to time, a quorum of the Board of Directors shall consist of a majority ofthe total number of authorized directors fixed from time to time by the Board of Directors in accordance with the Certificate of Incorporation; provided, however, at anymeeting whether a quorum be present or otherwise, a majority of the directors present may adjourn from time to time until the time fixed for the next regular meeting ofthe Board of Directors, or such earlier date, without notice other than by announcement at the meeting. (b) At each meeting of the Board of Directors at which a quorum is present, all questions and business shall be determined by the affirmative vote ofa majority of the directors present, unless a different vote be required by law, the Certificate of Incorporation or these Bylaws. Section 23. Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to betaken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as thecase may be, consent thereto in writing or by electronic transmission, and such writing or writings or transmission or transmissions are filed with the minutes ofproceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if theminutes are maintained in electronic form. Section 24. Fees And Compensation. Directors shall be entitled to such compensation for their services as may be approved by the Board of Directors,including, if so approved, by resolution of the Board of Directors, a fixed sum and expenses of attendance, if any, for attendance at each regular or special meeting of theBoard of Directors and at any meeting of a committee of the Board of Directors. Nothing herein contained shall be construed to preclude any director from serving thecorporation in any other capacity as an officer, agent, employee, or otherwise and receiving compensation therefor. Section 25. Committees. (a) Executive Committee. The Board of Directors may appoint an Executive Committee to consist of one (1) or more members of the Board ofDirectors. The Executive Committee, to the extent permitted by law and provided in the resolution of the Board of Directors shall have and may exercise all the powersand authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed toall papers which may require it; but no such committee shall have the power or authority in reference to (i) approving or adopting, or recommending to the stockholders,any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopting,amending or repealing any Bylaw of the corporation. - 12 - (b) Other Committees. The Board of Directors may, from time to time, appoint such other committees as may be permitted by law. Such othercommittees appointed by the Board of Directors shall consist of one (1) or more members of the Board of Directors and shall have such powers and perform such dutiesas may be prescribed by the resolution or resolutions creating such committees, but in no event shall any such committee have the powers denied to the ExecutiveCommittee in these Bylaws. (c) Term. The Board of Directors, subject to any requirements of any outstanding series of Preferred Stock and the provisions of subsections (a) or(b) of this Section 25, may at any time increase or decrease the number of members of a committee or terminate the existence of a committee. The membership of acommittee member shall terminate on the date of his or her death or voluntary resignation from the committee or from the Board of Directors. The Board of Directors mayat any time for any reason remove any individual committee member and the Board of Directors may fill any committee vacancy created by death, resignation, removal orincrease in the number of members of the committee. The Board of Directors may designate one or more directors as alternate members of any committee, who mayreplace any absent or disqualified member at any meeting of the committee, and, in addition, in the absence or disqualification of any member of a committee, and anyalternate member in his or her place, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute aquorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. (d) Meetings. Unless the Board of Directors shall otherwise provide, regular meetings of the Executive Committee or any other committee appointedpursuant to this Section 25 shall be held at such times and places as are determined by the Board of Directors, or by any such committee, and when notice thereof hasbeen given to each member of such committee, no further notice of such regular meetings need be given thereafter. Special meetings of any such committee may be heldat any place which has been determined from time to time by such committee, and may be called by any director who is a member of such committee, upon notice to themembers of such committee of the time and place of such special meeting given in the manner provided for the giving of notice to members of the Board of Directors ofthe time and place of special meetings of the Board of Directors. Notice of any special meeting of any committee may be waived in writing or by electronic transmissionat any time before or after the meeting and will be waived by any director by attendance thereat, except when the director attends such special meeting for the expresspurpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Unless otherwiseprovided by the Board of Directors in the resolutions authorizing the creation of the committee, a majority of the authorized number of members of any such committeeshall constitute a quorum for the transaction of business, and the act of a majority of those present at any meeting at which a quorum is present shall be the act of suchcommittee. - 13 - Section 26. Chair of the Board; Lead Independent Director. The Chair of the Board of Directors shall be appointed by the Board of Directors, and whenpresent shall preside at all meetings of the stockholders and the Board of Directors. The Chair of the Board of Directors shall perform other duties commonly incident tothe office and shall also perform such other duties and have such other powers, as the Board of Directors shall designate from time to time. The Chair of the Board ofDirectors, or if the Chair is not an independent director, one of the independent directors, may be designated by the Board of Directors as lead independent director toserve until replaced by the Board of Directors (“Lead Independent Director”). The Lead Independent Director will: with the Chair of the Board of Directors, establishthe agenda for regular Board meetings and serve as chair of Board of Directors meetings in the absence of the Chair of the Board of Directors; establish the agenda formeetings of the independent directors; coordinate with the committee chairs regarding meeting agendas and informational requirements; preside over meetings of theindependent directors; preside over any portions of meetings of the Board of Directors at which the evaluation or compensation of the Chief Executive Officer ispresented or discussed; preside over any portions of meetings of the Board of Directors at which the performance of the Board of Directors is presented or discussed;and perform such other duties as may be established or delegated by the Chair of the Board of Directors. Section 27. Organization. At every meeting of the directors, the Chair of the Board of Directors, or, if a Chair has not been appointed or is absent, the LeadIndependent Director, or if the Lead Independent Director is absent, the Chief Executive Officer (if a director), or, if a Chief Executive Officer has not been appointed or isabsent, the President (if a director), or if the President has not been appointed or is absent, the most senior Vice President (if a director), or, in the absence of any suchperson, a chair of the meeting chosen by a majority of the directors present, shall preside over the meeting. The Secretary, or in his or her absence, any AssistantSecretary or other officer or director directed to do so by the chair of the meeting, shall act as secretary of the meeting. ARTICLE V OFFICERS Section 28. Officers Designated. The officers of the corporation shall include, if and when designated by the Board of Directors, the Chief Executive Officer,the President, one or more Vice Presidents, the Secretary, the Chief Financial Officer and the Treasurer. The Board of Directors may also appoint one or more AssistantSecretaries and Assistant Treasurers and such other officers and agents with such powers and duties as it shall deem necessary. The Board of Directors may assignsuch additional titles to one or more of the officers as it shall deem appropriate. Any one person may hold any number of offices of the corporation at any one timeunless specifically prohibited therefrom by law. The salaries and other compensation of the officers of the corporation shall be fixed by or in the manner designated bythe Board of Directors. - 14 - Section 29. Tenure And Duties of Officers. (a) General. All officers shall hold office at the pleasure of the Board of Directors and until their successors shall have been duly elected andqualified, unless sooner removed. Any officer elected or appointed by the Board of Directors may be removed at any time by the Board of Directors. If the office of anyofficer becomes vacant for any reason, the vacancy may be filled by the Board of Directors. (b) Duties of Chief Executive Officer. The Chief Executive Officer shall preside at all meetings of the stockholders, unless the Chair of the Board ofDirectors or the Lead Independent Director has been appointed and is present. Unless an officer has been appointed Chief Executive Officer of the corporation, thePresident shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and controlof the business and officers of the corporation. To the extent that a Chief Executive Officer has been appointed and no President has been appointed, all references inthese Bylaws to the President shall be deemed references to the Chief Executive Officer. The Chief Executive Officer shall perform other duties commonly incident to theoffice and shall also perform such other duties and have such other powers, as the Board of Directors shall designate from time to time. (c) Duties of President. The President shall preside at all meetings of the stockholders, unless the Chair of the Board of Directors, the LeadIndependent Director, or the Chief Executive Officer has been appointed and is present. Unless another officer has been appointed Chief Executive Officer of thecorporation, the President shall be the chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision,direction and control of the business and officers of the corporation. The President shall perform other duties commonly incident to the office and shall also performsuch other duties and have such other powers, as the Board of Directors shall designate from time to time. (d) Duties of Vice Presidents. The Vice Presidents may assume and perform the duties of the President in the absence or disability of the Presidentor whenever the office of President is vacant. The Vice Presidents shall perform other duties commonly incident to their office and shall also perform such other dutiesand have such other powers as the Board of Directors or the Chief Executive Officer, or, if the Chief Executive Officer has not been appointed or is absent, the Presidentshall designate from time to time. (e) Duties of Secretary. The Secretary shall attend all meetings of the stockholders and of the Board of Directors and shall record all acts andproceedings thereof in the minute book of the corporation. The Secretary shall give notice in conformity with these Bylaws of all meetings of the stockholders and of allmeetings of the Board of Directors and any committee thereof requiring notice. The Secretary shall perform all other duties provided for in these Bylaws and other dutiescommonly incident to the office and shall also perform such other duties and have such other powers, as the Board of Directors shall designate from time to time. ThePresident may direct any Assistant Secretary or other officer to assume and perform the duties of the Secretary in the absence or disability of the Secretary, and eachAssistant Secretary shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board ofDirectors or the President shall designate from time to time. - 15 - (f) Duties of Chief Financial Officer. The Chief Financial Officer shall keep or cause to be kept the books of account of the corporation in athorough and proper manner and shall render statements of the financial affairs of the corporation in such form and as often as required by the Board of Directors or thePresident. The Chief Financial Officer, subject to the order of the Board of Directors, shall have the custody of all funds and securities of the corporation. The ChiefFinancial Officer shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board ofDirectors or the President shall designate from time to time. To the extent that a Chief Financial Officer has been appointed and no Treasurer has been appointed, allreferences in these Bylaws to the Treasurer shall be deemed references to the Chief Financial Officer. The President may direct the Treasurer, if any, or any AssistantTreasurer, or the Controller or any Assistant Controller to assume and perform the duties of the Chief Financial Officer in the absence or disability of the Chief FinancialOfficer, and each Treasurer and Assistant Treasurer and each Controller and Assistant Controller shall perform other duties commonly incident to the office and shallalso perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time. (g) Duties of Treasurer. Unless another officer has been appointed Chief Financial Officer of the corporation, the Treasurer shall be the chieffinancial officer of the corporation and shall keep or cause to be kept the books of account of the corporation in a thorough and proper manner and shall renderstatements of the financial affairs of the corporation in such form and as often as required by the Board of Directors or the President, and, subject to the order of theBoard of Directors, shall have the custody of all funds and securities of the corporation. The Treasurer shall perform other duties commonly incident to the office andshall also perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time. Section 30. Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officer or agent,notwithstanding any provision hereof. Section 31. Resignations. Any officer may resign at any time by giving notice in writing or by electronic transmission to the Board of Directors or to thePresident or to the Secretary. Any such resignation shall be effective when received by the person or persons to whom such notice is given, unless a later time isspecified therein, in which event the resignation shall become effective at such later time. Unless otherwise specified in such notice, the acceptance of any suchresignation shall not be necessary to make it effective. Any resignation shall be without prejudice to the rights, if any, of the corporation under any contract with theresigning officer. Section 32. Removal. Any officer may be removed from office at any time, either with or without cause, by the affirmative vote of a majority of the directors inoffice at the time, or by the unanimous written or electronic consent of the directors in office at the time, or by any committee of the Board of Directors or by the ChiefExecutive Officer or by other superior officers upon whom such power of removal may have been conferred by the Board of Directors. - 16 - ARTICLE VI EXECUTION OF CORPORATE INSTRUMENTSAND VOTING OF SECURITIES OWNED BY THE CORPORATION Section 33. Execution of Corporate Instruments. (a) The Board of Directors may, in its discretion, determine the method and designate the signatory officer or officers, or other person or persons, toexecute on behalf of the corporation any corporate instrument or document, or to sign on behalf of the corporation the corporate name without limitation, or to enter intocontracts on behalf of the corporation, except where otherwise provided by law or in Sections 35 and 40 of these Bylaws, and such execution or signature shall bebinding upon the corporation. (b) Unless otherwise specifically determined by the Board of Directors or otherwise required by law, promissory notes, deeds of trust, mortgages andother evidences of indebtedness of the corporation, and other corporate instruments or documents requiring the corporate seal, if any, and certificates of shares of stockowned by the corporation, shall be executed, signed or endorsed by the Chair of the Board of Directors, or the Chief Executive Officer or the President or any VicePresident, and by the Secretary or Treasurer or any Assistant Secretary or Assistant Treasurer. All other instruments and documents requiring the corporate signature,but not requiring the corporate seal, may be executed as aforesaid or in such other manner as may be directed by the Board of Directors. All checks and drafts drawn on banks or other depositaries on funds to the credit of the corporation or in special accounts of the corporation shall be signedby such person or persons as the Board of Directors shall authorize so to do. Unless authorized or ratified by the Board of Directors or within the agency power of an officer, no officer, agent or employee shall have any power or authorityto bind the corporation by any contract or engagement or to pledge the corporation’s credit or to render it liable for any purpose or for any amount. Section 34. Voting of Securities Owned By The Corporation. All stock and other securities of other corporations owned or held by the corporation for itself,or for other parties in any capacity, shall be voted, and all proxies with respect thereto shall be executed, by the person authorized so to do by resolution of the Board ofDirectors, or, in the absence of such authorization, by the Chair of the Board of Directors, the Chief Executive Officer, the President, or any Vice President. ARTICLE VII SHARES OF STOCK Section 35. Form And Execution of Certificates. The shares of the corporation shall be represented by certificates, or shall be uncertificated if so determinedby the Board of Directors. Certificates for the shares of stock, if any, shall be in such form as is consistent with the Certificate of Incorporation and applicable law. Everyholder of stock of the corporation represented by certificate shall be entitled to have a certificate signed by or in the name of the corporation by the Chair of the Board ofDirectors, or the President or any Vice President and by the Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary, certifying the number of sharesowned by him or her in the corporation. Any or all of the signatures on the certificate may be facsimiles. In case any officer, transfer agent, or registrar who has signed orwhose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may beissued with the same effect as if he or she were such officer, transfer agent, or registrar at the date of issue. - 17 - Section 36. Lost Certificates. A new certificate or certificates shall be issued in place of any certificate or certificates theretofore issued by the corporationalleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyedand on such terms and conditions as the corporation may require. The corporation may require, as a condition precedent to the issuance of a new certificate orcertificates, the owner of such lost, stolen, or destroyed certificate or certificates, or the owner’s legal representative, to agree to indemnify the corporation in suchmanner as it shall require or to give the corporation a surety bond in such form and amount as it may direct as indemnity against any claim that may be made against thecorporation with respect to the certificate alleged to have been lost, stolen, or destroyed. Section 37. Transfers. (a) Transfers of shares of stock of the corporation shall be made only upon its books by the holders thereof, in person or by attorney dulyauthorized, and, in the case of stock represented by certificate, upon the surrender of a properly endorsed certificate or certificates for a like number of shares and properevidence of compliance with other conditions of applicable law, by contract or otherwise to the rightful transfer. (b) Upon receipt of proper transfer instructions and proper evidence of compliance with other conditions of applicable law, by contract or otherwiseto rightful transfer from the registered owner of the uncertificated or certificated shares, any certificates representing the shares so transferred shall be cancelled, andissuance of a stock certificate or uncertificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of thecorporation. (c) The corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stockof the corporation to restrict the transfer of shares of stock of the corporation of any one or more classes owned by such stockholders in any manner not prohibited bythe DGCL. - 18 - Section 38. Fixing Record Dates. (a) In order that the corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, theBoard of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board ofDirectors, and which record date shall, subject to applicable law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board ofDirector so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directorsdetermines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date isfixed by the Board of Directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close ofbusiness on the day next preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which themeeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;provided, however, that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such caseshall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholdersentitled to vote in accordance with the foregoing provisions of this Section 38 at the adjourned meeting.. (b) In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of anyrights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, theBoard of Directors may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, andwhich record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any suchpurpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. Section 39. Registered Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner ofshares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on thepart of any other person whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VIII OTHER SECURITIES OF THE CORPORATION Section 40. Execution of Other Securities. All bonds, debentures and other corporate securities of the corporation, other than stock certificates (covered inSection 35), may be signed by the Chair of the Board of Directors, the President or any Vice President, or such other person as may be authorized by the Board ofDirectors, and the corporate seal impressed thereon or a facsimile of such seal imprinted thereon and attested by the signature of the Secretary or an AssistantSecretary, or the Chief Financial Officer or Treasurer or an Assistant Treasurer; provided, however, that where any such bond, debenture or other corporate security shallbe authenticated by the manual signature, or where permissible facsimile signature, of a trustee under an indenture pursuant to which such bond, debenture or othercorporate security shall be issued, the signatures of the persons signing and attesting the corporate seal on such bond, debenture or other corporate security may bethe imprinted facsimile of the signatures of such persons. Interest coupons appertaining to any such bond, debenture or other corporate security, authenticated by atrustee as aforesaid, shall be signed by the Treasurer or an Assistant Treasurer of the corporation or such other person as may be authorized by the Board of Directors,or bear imprinted thereon the facsimile signature of such person. In case any officer who shall have signed or attested any bond, debenture or other corporate security,or whose facsimile signature shall appear thereon or on any such interest coupon, shall have ceased to be such officer before the bond, debenture or other corporatesecurity so signed or attested shall have been delivered, such bond, debenture or other corporate security nevertheless may be adopted by the corporation and issuedand delivered as though the person who signed the same or whose facsimile signature shall have been used thereon had not ceased to be such officer of thecorporation. - 19 - ARTICLE IX DIVIDENDS Section 41. Declaration of Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the Certificate of Incorporation andapplicable law, if any, may be declared by the Board of Directors pursuant to law at any regular or special meeting. Dividends may be paid in cash, in property, or inshares of the capital stock, subject to the provisions of the Certificate of Incorporation and applicable law. Section 42. Dividend Reserve. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sumor sums as the Board of Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends,or for repairing or maintaining any property of the corporation, or for such other purpose as the Board of Directors shall think conducive to the interests of thecorporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. ARTICLE X FISCAL YEAR Section 43. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the Board of Directors. In the absence of such resolution, the fiscalyear shall be the calendar year. ARTICLE XI INDEMNIFICATION Section 44. Indemnification of Directors, Officers, Employees and Other Agents. (a) Directors and Officers. The corporation shall indemnify its directors and officers to the extent not prohibited by the DGCL; provided, however,that the corporation may modify the extent of such indemnification by individual contracts with its directors and officers; and, provided, further, that the corporationshall not be required to indemnify any director officer in connection with any proceeding (or part thereof) initiated by such person unless (i) such indemnification isexpressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the corporation, (iii) such indemnification is provided by thecorporation, in its sole discretion, pursuant to the powers vested in the corporation under the DGCL or (iv) such indemnification is required to be made under subsection(d). With respect to indemnification under Section 145(c) of the DGCL, "officer" shall have the meaning set forth in Section 145(c) of the DGCL. - 20 - (b) Employees and Other Agents. The corporation shall have power to indemnify its employees and other agents as set forth in the DGCL. TheBoard of Directors shall have the power to delegate the determination as to whether indemnification shall be given to any such person to a committee of the Board ofDirectors or to any officer. (c) Expenses. The corporation shall advance to any person who was or is a party or is threatened to be made a party to any threatened, pending orcompleted action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer, of thecorporation, or is or was serving at the request of the corporation as a director or executive officer of another corporation, partnership, joint venture, trust or otherenterprise, prior to the final disposition of the proceeding, promptly following request therefor, all expenses incurred by any director or officer in connection with suchproceeding provided, however, that if the DGCL requires, an advancement of expenses incurred by a director or officer in his or her capacity as a director or officer (andnot in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made onlyupon delivery to the corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shallultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled tobe indemnified for such expenses under this section or otherwise. (d) Enforcement. Without the necessity of entering into an express contract, all rights to indemnification and advancement of expenses to directorsor officers under this Bylaw shall be deemed to be contractual rights and be effective to the same extent and as if provided for in a contract between the corporation andthe director or officers. Any right to indemnification or advances granted by this section to a director or officers shall be enforceable by or on behalf of the personholding such right in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claimis made within ninety (90) days of request therefor. To the extent permitted by law, the claimant in such enforcement action, if successful in whole or in part, shall beentitled to be paid also the expense of prosecuting the claim. In connection with any claim for indemnification, the corporation shall be entitled to raise as a defense toany such action that the claimant has not met the standards of conduct that make it permissible under the DGCL for the corporation to indemnify the claimant for theamount claimed. In connection with any claim by an officer of the corporation (except in any action, suit or proceeding, whether civil, criminal, administrative orinvestigative, by reason of the fact that such officer is or was a director of the corporation) for advances, the corporation shall be entitled to raise a defense as to anysuch action clear and convincing evidence that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the bestinterests of the corporation, or with respect to any criminal action or proceeding that such person acted without reasonable cause to believe that his or her conduct waslawful. Neither the failure of the corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel or itsstockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he orshe has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the corporation (including its directors who are not parties to suchaction, a committee of such directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be adefense to the action or create a presumption that claimant has not met the applicable standard of conduct. In any suit brought by a director or officer to enforce a rightto indemnification or to an advancement of expenses hereunder, or brought by the corporation to recover an advancement of expenses pursuant to the terms of anundertaking, the burden of proving that the director or officer is not entitled to be indemnified, or to such advancement of expenses, under this section or otherwiseshall be on the corporation. - 21 - (e) Non-Exclusivity of Rights. The rights conferred on any person by this Bylaw shall not be exclusive of any other right which such person mayhave or hereafter acquire under any applicable statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or disinterested directorsor otherwise, both as to action in his or her official capacity and as to action in another capacity while holding office. The corporation is specifically authorized to enterinto individual contracts with one or more of its directors and officers or other agents respecting indemnification and advances, to the fullest extent not prohibited bythe DGCL. Any conflict between the Bylaws and any separate indemnification agreement shall be resolved in a manner more favorable to the party seekingindemnification or advancement of expenses. (f) Survival of Rights. The rights conferred on any person by this Bylaw shall continue as to a person who has ceased to be a director, officer,employee or other agent and shall inure to the benefit of the heirs, executors and administrators of such a person. (g) Insurance. To the fullest extent permitted by the DGCL, the corporation, upon approval by the Board of Directors, may purchase insurance onbehalf of any person required or permitted to be indemnified pursuant to this section. (h) Amendments. Any repeal or modification of this section shall only be prospective and shall not affect the rights under this Bylaw in effect at thetime of the alleged occurrence of any action or omission to act that is the cause of any proceeding against any agent of the corporation. (i) Saving Clause. If this Bylaw or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then thecorporation shall nevertheless indemnify each director and officer to the full extent not prohibited by any applicable portion of this section that shall not have beeninvalidated, or by any other applicable law. If this section shall be invalid due to the application of the indemnification provisions of another jurisdiction, then thecorporation shall indemnify each director and officer to the full extent under any other applicable law. (j) Certain Definitions. For the purposes of this Bylaw, the following definitions shall apply: (i) The term “proceeding” shall be broadly construed and shall include, without limitation, the investigation, preparation, prosecution,defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened, pending or completed action, suit or proceeding, whether civil,criminal, administrative or investigative. - 22 - (ii) The term “expenses” shall be broadly construed and shall include, without limitation, court costs, attorneys’ fees, witness fees, fines,amounts paid in settlement or judgment and any other costs and expenses of any nature or kind incurred in connection with any proceeding. (iii) The term the “corporation” shall include, in addition to the resulting corporation, any constituent corporation (including anyconstituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority toindemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituentcorporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership,joint venture, trust or other enterprise, shall stand in the same position under the provisions of this section with respect to the resulting or survivingcorporation as he or she would have with respect to such constituent corporation if its separate existence had continued. (iv) References to a “director,” “executive officer,” “officer,” “employee,” or “agent” of the corporation shall include, without limitation,situations where such person is serving at the request of the corporation as, respectively, a director, executive officer, officer, employee, trustee or agent ofanother corporation, partnership, joint venture, trust or other enterprise. (v) References to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed ona person with respect to an employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer,employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employeebenefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he or she reasonably believed to be in the interest of theparticipants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” asreferred to in this section. ARTICLE XII NOTICES Section 45. Notices. (a) Notice To Stockholders. Notice to stockholders of stockholder meetings shall be given as provided in Section 7 herein. Without limiting themanner by which notice may otherwise be given effectively to stockholders under any agreement or contract with such stockholder, and except as otherwise required bylaw, notice to stockholders for purposes other than stockholder meetings may be sent by US mail or electronic transmission in the manner provided in Section 232 of theDGCL. - 23 - (b) Notice To Directors. Any notice required to be given to any director may be given by the method stated in subsection (a), as otherwise providedin these Bylaws, or by overnight delivery service, facsimile, telex, telegram, or other form of electronic transmission except that such notice other than one which isdelivered personally shall be sent to such address as such director shall have filed in writing with the Secretary, or, in the absence of such filing, to the last known postoffice address of such director. (c) Affidavit of Mailing. An affidavit of mailing, executed by the Secretary or the Assistant Secretary or the transfer agent appointed with respect tothe class of stock affected, or other agent, specifying the name and address or the names and addresses of the stockholder or stockholders, or director or directors, towhom any such notice or notices was or were given, and the time and method of giving the same, shall in the absence of fraud, be prima facie evidence of the factstherein contained. (d) Methods of Notice. It shall not be necessary that the same method of giving notice be employed in respect of all recipients of notice, but onepermissible method may be employed in respect of any one or more, and any other permissible method or methods may be employed in respect of any other or others. (e) Notice To Person With Whom Communication Is Unlawful. Whenever notice is required to be given, under any provision of law or of theCertificate of Incorporation or Bylaws of the corporation, to any person with whom communication is unlawful, the giving of such notice to such person shall not berequired and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meetingwhich shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had beenduly given. In the event that the action taken by the corporation is such as to require the filing of a certificate under any provision of the DGCL, the certificate shallstate, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication isunlawful. (f) Notice to Stockholders Sharing an Address. Except as otherwise prohibited under DGCL, any notice given under the provisions of DGCL, theCertificate of Incorporation or the Bylaws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholdersat that address to whom such notice is given. Such consent shall have been deemed to have been given if such stockholder fails to object in writing to the corporationwithin sixty (60) days of having been given notice by the corporation of its intention to send the single notice. Any consent shall be revocable by the stockholder bywritten notice to the corporation. - 24 - ARTICLE XIII AMENDMENTS Section 46. Amendments. Subject to the limitations set forth in Section 44(h) of these Bylaws or the provisions of the Certificate of Incorporation, the Boardof Directors is expressly empowered to adopt, amend or repeal the Bylaws of the corporation. Any adoption, amendment or repeal of the Bylaws of the corporation bythe Board of Directors shall require the approval of a majority of the total number of authorized directors. The stockholders also shall have power to adopt, amend orrepeal the Bylaws of the corporation; provided, however, that, in addition to any vote of the holders of any class or series of stock of the corporation required by law orby the Certificate of Incorporation, such action by stockholders shall require the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) ofthe voting power of the outstanding shares of the capital stock of the corporation entitled to vote generally in the election of directors, voting together as a single class. ARTICLE XIV MISCELLANEOUS Section 47. Loans To Officers. Except as otherwise prohibited by applicable law, the corporation may lend money to, or guarantee any obligation of, orotherwise assist any officer or other employee of the corporation or of its subsidiaries, including any officer or employee who is a director of the corporation or itssubsidiaries, whenever, in the judgment of the Board of Directors, such loan, guarantee or assistance may reasonably be expected to benefit the corporation. The loan,guarantee or other assistance may be with or without interest and may be unsecured, or secured in such manner as the Board of Directors shall approve, including,without limitation, a pledge of shares of stock of the corporation. Nothing in these Bylaws shall be deemed to deny, limit or restrict the powers of guaranty or warrantyof the corporation at common law or under any statute. Section 48. Exclusive Forums for Adjudication of Disputes. Unless the corporation consents in writing to the selection of an alternative forum, the sole andexclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of fiduciary duty owed by anydirector or officer or other employee of the corporation to the corporation or its stockholders, (iii) any action asserting a claim against the corporation or any director orofficer or other employee of the corporation arising pursuant to any provision of the DGCL or the Certificate of Incorporation or these By-Laws (in each case, as theymay be amended from time to time), or (iv) any action asserting a claim against the corporation or any director or officer or other employee of the corporation governedby the internal affairs doctrine shall be the Delaware Court of Chancery (or if the Delaware Court of Chancery does not have jurisdiction, a state court located within theState of Delaware or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware). Further, unless thecorporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for theresolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended. Any person or entity purchasing or otherwise acquiringany interest in any security of the corporation shall be deemed to have notice of and consented to the Bylaws, including this Section 48. - 25 -Exhibit 4.1 DESCRIPTION OF SECURITIES Our authorized capital stock consists of 75,000,000 shares of common stock, $0.01 par value per share (“Common Stock”), and 5,000,000 shares of preferredstock, $0.01 par value per share. A description of material terms and provisions of our amended and restated certificate of incorporation and bylaws affecting the rightsof holders of our capital stock is set forth below. The description is intended as a summary, and is qualified in its entirety by reference to our amended and restatedcertificate of incorporation and the bylaws. On December 18, 2015, we effected a 1-for-25 reverse stock split and 25 shares of our outstanding Common Stock decreased to one share of Common Stock.Similarly, the number of shares of Common Stock issuable upon the exercise of outstanding stock options or warrants, or upon the vesting of outstanding restrictedstock units, decreased on a 1-for-25 basis and the exercise price of each outstanding option and warrant increased proportionately. Common Stock Dividend rights. Subject to preferences that may apply to shares of preferred stock outstanding at the time, the holders of outstanding shares of our CommonStock are entitled to receive dividends out of funds legally available if our Board of Directors (the “Board”), in its discretion, determines to issue dividends and thenonly at the times and in the amounts that our Board may determine. Voting rights. Each holder of Common Stock is entitled to one vote for each share of Common Stock held on all matters submitted to a vote of stockholders.Our amended and restated certificate of incorporation does not provide for the right of stockholders to cumulate votes for the election of directors. Our amended andrestated certificate of incorporation establishes a classified Board, divided into three classes with staggered three-year terms. Only one class of directors is elected ateach annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms. No preemptive or similar rights. Our Common Stock is not entitled to preemptive rights and is not subject to conversion, redemption or sinking fundprovisions. The rights, preferences and privileges of the holders of our Common Stock are subject to, and may be adversely affected by, the rights of the holders of anyseries of our preferred stock that we may designate and issue in the future. Right to receive liquidation distributions. Upon our dissolution, liquidation or winding-up, the assets legally available for distribution to holders of ourCommon Stock are distributable ratably among the holders of our Common Stock, subject to prior satisfaction of all outstanding debt and liabilities and the preferentialrights and payment of liquidation preferences, if any, on any outstanding shares of our preferred stock. The rights of the holders of our Common Stock are subject to, and may be adversely affected by, the rights of holders of shares of any preferred stock that wemay designate and issue in the future. Anti-takeover effects of provisions of our certificate of incorporation and bylaws and Delaware law Amended and restated certificate of incorporation and bylaws. Our amended and restated certificate of incorporation provides that our Board is divided intothree classes with staggered three-year terms. Only one class of directors is elected at each annual meeting of our stockholders, with the other classes continuing for theremainder of their respective three-year terms. Because holders of our Common Stock do not have cumulative voting rights in the election of directors, stockholdersholding a majority of the shares of Common Stock outstanding are able to elect all of our directors. Our Board is able to elect a director to fill a vacancy created by theexpansion of the Board or due to the resignation or departure of an existing board member. Our amended and restated certificate of incorporation and bylaws alsoprovide that all stockholder actions must be effected at a duly called meeting of stockholders and not by written consent, and that only the Board pursuant to aresolution adopted by a majority of the total number of authorized directors may call a special meeting of stockholders. In addition, our bylaws include a requirement forthe advance notice of nominations for election to the Board or for proposing matters that can be acted upon at a stockholders’ meeting. Our amended and restatedcertificate of incorporation provides for the ability of the Board to issue, without stockholder approval, up to 5,000,000 shares of preferred stock with terms set by theBoard, which rights could be senior to those of our Common Stock. Our amended and restated certificate of incorporation and bylaws also provide that approval of atleast 66-2/3% of the shares entitled to vote at an election of directors will be required to adopt, amend or repeal our bylaws, or repeal the provisions of our amended andrestated certificate of incorporation regarding the election of directors and the inability of stockholders to take action by written consent in lieu of a meeting. The foregoing provisions make it difficult for holders of our Common Stock to replace our Board. In addition, the authorization of undesignated preferred stockmakes it possible for our Board to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of ourCompany. Section 203 of the Delaware General Corporation Law We are subject to the provisions of Section 203 of the Delaware General Corporation Law regulating corporate takeovers. This section prevents some Delawarecorporations from engaging, under some circumstances, in a business combination, which includes a merger or sale of at least 10% of the corporation’s assets with anyinterested stockholder, meaning a stockholder who, together with affiliates and associates, owns or, within three years prior to the determination of interestedstockholder status, did own 15% or more of the corporation’s outstanding voting stock, unless: ●the transaction is approved by the Board prior to the time that the interested stockholder became an interested stockholder; ●upon consummation of the transaction which resulted in the stockholder’s becoming an interested stockholder, the interested stockholder owned at least 85%of the voting stock of the corporation outstanding at the time the transaction commenced; or ●at or subsequent to such time that the stockholder became an interested stockholder, the business combination is approved by the Board and authorized at anannual or special meeting of stockholders by at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder. A Delaware corporation may “opt out” of these provisions with an express provision in its original certificate of incorporation or an express provision in itscertificate of incorporation or bylaws resulting from a stockholders’ amendment approved by at least a majority of the outstanding voting shares. We do not plan to “optout” of these provisions. The statute could prohibit or delay mergers or other takeover or change in control attempts and, accordingly, may discourage attempts toacquire us. Transfer Agent and Registrar Computershare Shareholder Services, Inc., located in Providence, Rhode Island, Providence County, is the transfer agent and registrar for our Common Stock inthe United States and Computershare Investor Services, Inc., located in Toronto, Ontario, Canada, is the co-transfer agent and registrar for our Common Stock inCanada. The transfer agent for any series of preferred stock that we may offer under this prospectus will be named and described in the prospectus supplement relatedto that series. Listing on the NYSE American Our Common Stock is listed on the NYSE American under the symbol “NBY.” The applicable prospectus supplement will contain information, where applicable,as to any other listing, if any, on the NYSE American or any securities market or other exchange of the preferred stock covered by such prospectus supplement. Exhibit 10.1 INDEMNITY AGREEMENT THIS INDEMNITY AGREEMENT (this “Agreement”) dated as of ___________, 201_, is made by and between NOVABAY PHARMACEUTICALS, INC., a Delawarecorporation (together with its successors and assigns, the “Company”), and _________________ (“Indemnitee”). RECITALS A.The Company desires to attract and retain highly qualified individuals to serve as Company directors and officers. B.The Company’s Board of Directors ("Board") has determined that, in order to attract and retain qualified individuals as directors and officers, the Company willattempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company from certain liabilities. Although thefurnishing of such insurance has been a customary and widespread practice among United States-based business enterprises, the Company believes that,given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the sametime, directors, officers, and other persons in service to business enterprises are being increasingly subjected to expensive and time-consuming litigationrelating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. C.As authorized by the Delaware General Corporation Law, as amended (the “Code”), the Company’s bylaws (the “Bylaws”) require that the Company indemnifyits directors and officers to the extent not prohibited by the Code, and permit the Company to indemnify its employees and agents. The Bylaws expresslyprovide that the indemnification provided therein is not exclusive and contemplate that the Company may enter into separate indemnification agreements withits directors, officers and other persons. D.This Agreement is a supplement to any liability insurance obtained by the Company for the benefit of directors and officers and in furtherance of the Bylawsand the Company’s Certificate of Incorporation ("Certificate"), and shall not be deemed a substitute therefor, nor diminish or abrogate any rights of Indemniteethereunder. E.The Board has determined that (i) the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company'sstockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future and (ii) it isreasonable, prudent and necessary for the Company to obligate itself contractually to indemnify, and to advance expenses on behalf of, such persons to thefullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified. F.The Company desires and has requested Indemnitee to serve or continue to serve as a director and/or officer of the Company, as the case may be, and hasproffered this Agreement to Indemnitee as an additional inducement to serve in such capacity. G.Indemnitee is willing to serve, or to continue to serve, as a director and/or officer of the Company, as the case may be, if Indemnitee is furnished the rights toindemnification and to the advancement of expenses provided for herein by the Company. AGREEMENT NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties hereto, intending to be legally bound, hereby agree asfollows: 1. Definitions. (a) Agent. For purposes of this Agreement, the term “agent” of the Company means any person who: (i) is or was a director, officer, employee, agent orother fiduciary of the Company; or (ii) is or was serving at the request or for the convenience of, or representing the interests of, the Company, as a director, officer,employee or other fiduciary of a foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. (b) Expenses. For purposes of this Agreement, the term “expenses” shall be broadly construed and shall include, without limitation, all direct and indirectcosts of any type or nature whatsoever (including, without limitation, all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees,travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, or other professional fees and related disbursements orexpenses, and other out-of-pocket costs of whatever nature), actually and reasonably incurred by Indemnitee in connection with the investigation, defense or appeal ofa proceeding or establishing or enforcing a right to indemnification under this Agreement, the Code or otherwise, and amounts paid in settlement by or on behalf ofIndemnitee, but shall not include any judgments, fines or penalties actually levied against Indemnitee for such individual’s violations of law. The term “expenses” shallalso include reasonable compensation for time spent by Indemnitee for which he or she is not compensated by the Company or third party: (i) for any period duringwhich Indemnitee is not an agent, in the employment of, or providing services for compensation to, the Company; and (ii) if the rate of compensation and estimated timeinvolved is approved by the directors of the Company who are not parties to any action with respect to which expenses are incurred, for Indemnitee while an agent of,employed by, or providing services for compensation to, the Company. Expenses also shall include any federal, state, local or foreign taxes imposed on the Indemniteeas a result of the actual or deemed receipt of any payments under this Agreement, including without limitation the premium, security for, and other costs relating to anycost bond, supersede as bond, or other appeal bond or its equivalent. (c) Proceedings. For purposes of this Agreement, the term “proceeding” shall be broadly construed and shall include, without limitation, any threatened,pending, or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened orcompleted proceeding, whether brought by or in the right of the Company or otherwise and whether of a civil, criminal, administrative or investigative nature, andwhether formal or informal in any case, in which Indemnitee was, is or will be involved as a party or otherwise by reason of: (i) the fact that Indemnitee is or was adirector or officer of the Company; (ii) the fact that any action taken by Indemnitee or of any action or inaction on Indemnitee’s part while acting as director, officer,employee or agent of the Company; or (iii) the fact that Indemnitee is or was serving at the request of the Company as a director, officer, employee or agent of anothercorporation, partnership, joint venture, trust, employee benefit plan or other enterprise, and in any such case described above, whether or not serving in any suchcapacity at the time any liability or expense is incurred for which indemnification, reimbursement, or advancement of expenses may be provided under this Agreement. (e) Independent Counsel. For purposes of this Agreement, the term “independent counsel” means a law firm, or a partner (or, if applicable, member) of sucha law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five (5) years has been, retained to represent: (i) the Company orIndemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees undersimilar indemnification agreements), or (ii) any other party to the proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, theterm “independent counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interestin representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable feesof the independent counsel referred to above and to fully indemnify such counsel against any and all expenses, claims, liabilities and damages arising out of or relatingto this Agreement or its engagement pursuant hereto. 2. Agreement to Serve. Indemnitee will serve, or continue to serve, as a director, office, or agent of the Company, faithfully and to the best of his or her ability,at the will of such corporation (or under separate agreement, if such agreement exists), in the capacity Indemnitee currently serves as an agent of the Company, so longas Indemnitee is duly appointed or elected and qualified in accordance with the applicable provisions of the Bylaws or Certificate, or until such time as Indemniteetenders his or her resignation in writing; provided, however, that nothing contained in this Agreement is intended as an employment agreement between Indemnitee andthe Company or to create any right to continued employment of Indemnitee with the Company in any capacity. The Company acknowledges that it has entered into this Agreement and assumes the obligations imposed on it hereby, in addition to and separate from itsobligations to Indemnitee under the Bylaws or Certificate, to induce Indemnitee to serve, or continue to serve, as a director, officer or agent of the Company, and theCompany acknowledges that Indemnitee is relying upon this Agreement in serving as a director, officer or agent of the Company. 3. Indemnification. The Company hereby agrees to defend, hold harmless and indemnify Indemnitee to the extent not prohibited by the Code, as such may be amended from timeto time. In furtherance of the foregoing indemnification, and without limiting the generality thereof: (a) Indemnification in Third Party Proceedings. Subject to Section 11 below, Indemnitee shall be entitled to the rights of indemnification provided in thisSection 3(a) to the extent not prohibited by the Code, as the same may be amended from time to time (but, only to the extent that such amendment permits Indemnitee tobroader indemnification rights than the Code permitted prior to adoption of such amendment), if, by reason of or relating in any way to Indemnitee’s status as an agent,Indemnitee is a party to or otherwise involved, or is threatened to be made a party to or otherwise involved, in any proceeding other than a proceeding by or in the rightof the Company. Pursuant to this Section 3(a), Indemnitee shall be indemnified against all expenses, judgments, penalties, fines and amounts paid in settlement actuallyand reasonably incurred by Indemnitee, or on Indemnitee’s behalf, in connection with such proceeding or any claim, issue or matter therein, if the Indemnitee acted ingood faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminalproceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful. (b) Indemnification in Derivative Actions and Direct Actions by the Company. Subject to Section 11 below, Indemnitee shall be entitled to the rights ofindemnification provided in this Section 3(b) to the extent not prohibited by the Code, as the same may be amended from time to time (but, only to the extent that suchamendment permits Indemnitee to broader indemnification rights than the Code permitted prior to adoption of such amendment), if, by reason of or relating in any way toIndemnitee’s status as an agent, Indemnitee is a party to, or otherwise involved, or is threatened to be made a party to or otherwise involved in any proceeding by or inthe right of the Company. Pursuant to this Section 3(b), Indemnitee shall be indemnified against all expenses actually and reasonably incurred by the Indemnitee, or onthe Indemnitee’s behalf, in connection with such proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or notopposed to the best interests of the Company; provided, however, if applicable law so provides, no indemnification against such expenses shall be made in respect ofany claim, issue or matter in such proceeding as to which Indemnitee shall have been adjudged to be liable to the Company unless and to the extent that the Court ofChancery of the State of Delaware shall determine that such indemnification may be made. 4. Indemnification of Expenses of Successful Party. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee has beensuccessful on the merits or otherwise in any proceeding or in defense of any claim, issue or matter therein, including the dismissal of any action without prejudice, theCompany shall indemnify Indemnitee to the maximum extent not prohibited by the Code, as such may be amended from time to time, against all expenses actually andreasonably incurred by Indemnitee on his or her behalf in connection therewith. For purposes of this Section 4 and without limitation, the termination of any claim, issueor matter in such a proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter. 5. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of anyexpenses actually and reasonably incurred by Indemnitee in the investigation, defense, settlement or appeal of a proceeding, but is precluded by applicable law or thespecific terms of this Agreement to indemnification for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to whichIndemnitee is entitled. 6. Contribution. (a) Whether or not the indemnification provided in Section 3 hereof is available, in respect of any threatened, pending or completed proceeding in whichthe Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall pay, in the first instance, the entire amount ofany judgment or settlement of such action, suit or proceeding without requiring Indemnitee to contribute to such payment and the Company hereby waives andrelinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any action, suit or proceeding in which theCompany is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding) unless such settlement provides for a full and final release of allclaims asserted against Indemnitee. (b) Without diminishing or impairing the obligations of the Company set forth in Section 6(a), if, for any reason, Indemnitee shall elect or be required to payall or any portion of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable withIndemnitee (or would be if joined in such action, suit or proceeding), the Company shall contribute to the amount of expenses, judgments, fines and amounts paid insettlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directorsor employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand,and Indemnitee, on the other hand, from the transaction or events from which such action, suit or proceeding arose; provided, however, that the proportion determinedon the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers,directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the onehand, and Indemnitee, on the other hand, in connection with the transaction or events that resulted in such expenses, judgments, fines or settlement amounts, as well asany other equitable considerations which applicable law may require to be considered. The relative fault of the Company and all officers, directors or employees of theCompany, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, onthe other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage,the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive. (c) The Company hereby agrees fully to indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers,directors, or employees of the Company (other than Indemnitee) who may be jointly liable with Indemnitee. (d) To the extent not prohibited by the Code, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever,the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amountspaid or to be paid in settlement and/or for expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as isdeemed fair and reasonable in light of all of the circumstances of such proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee asa result of the event(s) and/or transaction(s) giving cause to such proceeding and/or (ii) the relative fault of the Company (and its other directors, officers, employeesand agents) and Indemnitee in connection with such event(s) and/or transaction(s). 7. Advancement of Expenses. Notwithstanding any other provision of this Agreement, to the extent not prohibited by the Code, the Company shall advance allexpenses incurred by or on behalf of Indemnitee in connection with any proceeding, and such advancement shall be made within thirty (30) days after the receipt by theCompany of a statement or statements requesting such advances (which shall include invoices received by Indemnitee in connection with such expenses but, in thecase of invoices in connection with legal services, any references to legal work performed or to expenditures made that would cause Indemnitee to waive any privilegeaccorded by applicable law shall not be included with the invoice) and upon request of the Company, an undertaking to repay the advancement of expenses if and to theextent that it is finally determined by a court of competent jurisdiction in a final judgment, not subject to further appeal, that Indemnitee is not entitled to be indemnifiedby the Company. Advances shall be unsecured, interest free and without regard to Indemnitee’s ability to repay the expenses. Advances shall include any and allexpenses actually and reasonably incurred by Indemnitee pursuing an action to enforce Indemnitee’s right to indemnification under this Agreement, or otherwise andthis right of advancement, including expenses incurred preparing and forwarding statements to the Company to support the advances claimed. The execution anddelivery of this Agreement shall constitute an undertaking providing that Indemnitee shall, to the fullest extent required by law, repay the advance if and to the extentthat it is finally determined by a court of competent jurisdiction in a final judgment, not subject to further appeal, that Indemnitee is not entitled to be indemnified by theCompany. Payments for advanced expenses requested under this Section 7 shall be made by the Company no later than thirty (30) days after receipt of the writtenrequest of Indemnitee. The right to advancement of expenses under this Section 7 is a right separate from and independent of the right to indemnification and shallcontinue until final disposition of any proceeding, including any appeal therein. This Section 7 shall not apply to any claim made by Indemnitee for which indemnity isexcluded pursuant to Section 11(b). Further, the Company shall not seek from a court, or agree to, a "bar order" which would have the effect of prohibiting or limiting theIndemnitee's rights to receive advancement of expenses under this Agreement. 8. Notice and Other Indemnification Procedures. (a) Notification of Proceeding. Indemnitee will promptly notify the Company in writing upon being served with any summons, citation, subpoena,complaint, indictment, information or other document relating to any proceeding or matter which may be subject to indemnification or advancement of expenses coveredhereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreementor otherwise unless and only to the extent that such failure or delay materially prejudices the Company. (b) Request for Indemnification and Indemnification Payments. After providing the notice described in Section 8(a) above, Indemnitee may requestindemnification payments thereof by the Company. Indemnification payments requested by Indemnitee under Section 3 hereof shall be made by the Company no laterthan thirty (30) days after receipt of the written request of Indemnitee. Claims for advancement of expenses shall be made under the provisions of Section 7 herein. (c) Application for Enforcement. In the event the Company fails to make timely payments as set forth in Sections 7 or 8(b) above, Indemnitee shall havethe right to apply to any court of competent jurisdiction for the purpose of enforcing Indemnitee’s right to indemnification or advancement of expenses pursuant to thisAgreement. In such an enforcement hearing or proceeding, the burden of proof shall be on the Company to prove that indemnification or advancement of expenses toIndemnitee is not required under this Agreement or permitted by applicable law. Any determination by the Company (including its Board of Directors, stockholders orindependent counsel) that Indemnitee is not entitled to indemnification hereunder, shall not be a defense by the Company to the action nor create any presumption thatIndemnitee is not entitled to indemnification or advancement of expenses hereunder or otherwise prejudice. (d) Adjudication. In the event that Indemnitee, pursuant to this Section 8, seeks adjudication of his or her rights under, or to recover damages for breach of,this Agreement, or to recover under any directors' and officers' liability insurance policies maintained by the Company, the Company shall pay on his or her behalf, inadvance, any and all expenses actually and reasonably incurred by him or her in such judicial adjudication, regardless of whether Indemnitee ultimately is determined tobe entitled to such indemnification, advancement of expenses or insurance recovery. (e) Validity. The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 8 that the procedures andpresumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of thisAgreement. The Company shall indemnify Indemnitee against any and all expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by theCompany of a written request therefore) advance, to the extent not prohibited by law, such expenses to Indemnitee, which are incurred by Indemnitee in connection withany action brought by Indemnitee for indemnification or advance of expenses from the Company under this Agreement or under any directors' and officers' liabilityinsurance policies maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement ofexpenses or insurance recovery, as the case may be. (f) Timing. Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shallbe required to be made prior to the final disposition of the proceeding. 9. Assumption of Defense. In the event the Company shall be requested by Indemnitee to pay the expenses of any proceeding, the Company, if appropriate,shall be entitled to assume the defense of such proceeding, or to participate to the extent permissible in such proceeding, with counsel reasonably acceptable toIndemnitee. Upon assumption of the defense by the Company and the retention of such counsel by the Company, the Company shall not be liable to Indemnitee underthis Agreement for any fees of counsel subsequently incurred by Indemnitee with respect to the same proceeding, provided that Indemnitee shall have the right toemploy separate counsel in such proceeding at Indemnitee’s sole cost and expense. Notwithstanding the foregoing, if Indemnitee’s counsel delivers a written notice tothe Company stating that such counsel has reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of anysuch defense or the Company shall not, in fact, have employed counsel or otherwise actively pursued the defense of such proceeding within a reasonable time, then inany such event the fees and expenses of Indemnitee’s counsel to defend such proceeding shall be subject to the indemnification and advancement of expensesprovisions of this Agreement. 10. Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, oragents of the Company or of any corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of theCompany (“D&O Insurance”), Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverageavailable for any such director, officer, employee or agent under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof,the Company has D&O Insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with theprocedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf ofIndemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies. 11. Exceptions. (a) Certain Matters. Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreementto indemnify Indemnitee on account of any proceeding with respect to (i) remuneration paid to Indemnitee if it is determined by final judgment or other final adjudicationthat such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee have been advised that the Securities and Exchange Commissionbelieves that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims forindemnification should be submitted to appropriate courts for adjudication, as indicated in Section 11(d) below); (ii) a final judgment rendered against Indemnitee for anaccounting, disgorgement or repayment of profits made from the purchase or sale by Indemnitee of securities of the Company against Indemnitee or in connection witha settlement by or on behalf of Indemnitee to the extent it is acknowledged by Indemnitee and the Company that such amount paid in settlement resulted fromIndemnitee's conduct from which Indemnitee received monetary personal profit, pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934, asamended, or other provisions of any federal, state or local statute or rules and regulations thereunder; (iii) a final judgment or other final adjudication that Indemnitee’sconduct was in bad faith, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination); (iv) onaccount of conduct that is established by a final judgment as constituting a breach of Indemnitee’s duty of loyalty to the Company or resulting in any personal profit oradvantage to which Indemnitee is not legally entitled; or (v) payment having actually been made to or on behalf of Indemnitee under any insurance policy or otherindemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision. For purposes of the foregoingsentence, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with which indemnification is sought or aseparate proceeding or action to establish rights and liabilities under this Agreement. (b) Claims Initiated by Indemnitee. Any provision herein to the contrary notwithstanding, the Company shall not be obligated to indemnify or advanceexpenses to Indemnitee with respect to proceedings or claims initiated or brought by Indemnitee against the Company or its directors, officers, employees or otheragents and not by way of defense, except (i) with respect to proceedings brought to establish or enforce a right to indemnification under this Agreement or under anyother agreement, provision in the Bylaws or Certificate or applicable law, or (ii) with respect to any other proceeding initiated by Indemnitee that is either approved bythe Board or Indemnitee’s participation is required by applicable law. However, indemnification or advancement of expenses may be provided by the Company inspecific cases if the Board determines it to be appropriate. (c) Unauthorized Settlements. Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of thisAgreement to indemnify Indemnitee under this Agreement for any amounts paid in settlement of a proceeding effected without the Company’s written consent. Neitherthe Company nor Indemnitee shall unreasonably withhold consent to any proposed settlement; provided, however, that the Company may in any event decline toconsent to (or to otherwise admit or agree to any liability for indemnification hereunder in respect of) any proposed settlement if the Company is also a party in suchproceeding and determines in good faith after consultation with legal counsel that such settlement is not in the best interests of the Company and its stockholders. (d) Securities Act Liabilities. Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of thisAgreement to indemnify Indemnitee or otherwise act in violation of any undertaking appearing in and required by the rules and regulations promulgated under theSecurities Act of 1933, as amended (the “Act”), or in any registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of theenforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdictionand to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Agreementand to be bound by any such undertaking. 12. Nonexclusivity and Survival of Rights. (a) The provisions for indemnification and advancement of expenses set forth in this Agreement shall not be deemed exclusive of any other rights whichIndemnitee may at any time be entitled under any provision of applicable law, the Company’s Certificate, Bylaws, other agreements, a vote of stockholders, a resolutionof directors of the Company, or otherwise, both as to action in Indemnitee’s official capacity and Indemnitee’s action as an agent of the Company, in any court in which aproceeding is brought, and Indemnitee’s rights hereunder shall continue after Indemnitee has ceased acting as an agent of the Company and shall inure to the benefit ofthe heirs, executors, administrators and assigns of Indemnitee. The obligations and duties of the Company to Indemnitee under this Agreement shall be binding on theCompany and its successors and assigns until terminated in accordance with its terms. The Company shall require any successor (whether direct or indirect, bypurchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, expressly to assume and agree to perform thisAgreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respectof any action taken or omitted by such Indemnitee prior to such amendment, alteration or repeal. To the extent that a change in the Code, whether by statute or judicialdecision, permits greater indemnification or advancement of expenses than would be afforded currently under the Company’s Certificate, Bylaws and this Agreement, itis the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred isintended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy givenhereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, by Indemnitee shallnot prevent the concurrent assertion or employment of any other right or remedy by Indemnitee. (b) The Company hereby acknowledges that Indemnitee has certain rights to indemnification, advancement of expenses and/or insurance provided by___________ and certain of its affiliates (collectively, the “Fund Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of first resort (i.e., itsobligations to Indemnitee are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilitiesincurred by Indemnitee are secondary), (ii) that it shall be required to advance the full amount of expenses incurred by Indemnitee and shall be liable for the full amountof all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement and theCertificate or Bylaws of the Company (or any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee may have against theFund Indemnitors, and (iii) that it irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors forcontribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Fund Indemnitorson behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company shall affect the foregoing and the FundIndemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee againstthe Company. The Company and Indemnitee agree that the Fund Indemnitors are express third party beneficiaries of the terms of this Section 12(b). 13. Term. This Agreement shall continue until and terminate upon the later of: (a) five (5) years after the date that Indemnitee shall have ceased to serve as adirector or and/or officer or agent of the Company; or (b) one (1) year after the final termination of any proceeding, including any appeal then pending, in respect towhich Indemnitee was granted rights of indemnification or advancement of expenses hereunder. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against an Indemnitee or an Indemnitee's estate,spouse, heirs, executors or personal or legal representatives after the expiration of five (5) years from the date of accrual of such cause of action, and any claim or causeof action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such five-year period; provided,however, that if any shorter period of limitations is otherwise applicable to such cause of action, such shorter period shall govern. 14. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights ofrecovery of Indemnitee, who, at the request and expense of the Company, shall execute all papers required and shall do everything that may be reasonably necessary tosecure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights. 15. Primacy of Indemnification. The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder ifand to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise. The Company’sobligation to indemnify or advance expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent ofany other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received asindemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. 16. Interpretation of Agreement. It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to provide indemnificationto Indemnitee to the fullest extent now or hereafter permitted by law. 17. Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever, (a) the validity, legality andenforceability of the remaining provisions of the Agreement (including without limitation, all portions of any paragraphs of this Agreement containing any suchprovision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and(b) to the fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any paragraph of this Agreement containing any suchprovision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intentmanifested by the provision held invalid, illegal or unenforceable and to give effect to Section 16 hereof. 18. Amendment and Waiver. No supplement, modification, amendment, or cancellation of this Agreement shall be binding unless executed in writing by theparties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar)nor shall such waiver constitute a continuing waiver. 19. Notice. Except as otherwise provided herein, any notice or demand which, by the provisions hereof, is required or which may be given to or served uponthe parties hereto shall be in writing and shall be deemed to have been validly served, given or delivered (a) upon personal delivery to the party to be notified; (b) whensent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day; (c) three (3)business days after deposit in the United States mail, as registered or certified mail, with proper postage prepaid; or (d) one (1) business day after deposit with anationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All written notifications shall be addressed to the party orparties to be notified at the addresses set forth on the signature page of this Agreement (or such other address(es) as a party may designate for itself by like notice). Ifto the Company, notices and demands shall be delivered to the attention of the Secretary of the Company. 20. Governing Law. This Agreement shall be governed exclusively by and construed and enforced according to the laws of the State of Delaware, withoutregard to its conflict of laws rules, as applied to contracts between Delaware residents entered into and to be performed entirely within Delaware. The Company andIndemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only inthe exclusive jurisdiction of the United States federal and state courts located in California, County of Alameda (the “California Courts”), and not in any other state orfederal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the California Courts for purposes ofany action or proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding in theCalifornia Courts, and (iv) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the California Courts has been brought inan improper or inconvenient forum. 21. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all ofwhich together shall constitute but one and the same Agreement. Only one such counterpart need be produced to evidence the existence of this Agreement.Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g.,www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effectivefor all purposes. 22. Headings. The headings of the sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreementor to affect the construction hereof. 23. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prioragreements, understandings and negotiations, written and oral, between the parties with respect to the subject matter of this Agreement; provided, however, that thisAgreement is a supplement to and in furtherance of the Company’s Certificate, Bylaws, the Code and any other applicable law, and shall not be deemed a substitutetherefor, and does not diminish or abrogate any rights of Indemnitee thereunder. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, the parties hereto have entered into this Agreement effective as of the date first above written. NOVABAY PHARMACEUTICALS, INC. By: Justin Hall President & Chief Executive Officer and General Counsel INDEMNITEE By: [Name of Indemnitee] Exhibit 10.15 NON-EMPLOYEE DIRECTOR COMPENSATION PLANJanuary 1, 2022 1. Purpose. The purpose of NovaBay Pharmaceuticals, Inc. (hereinafter referred to as “NovaBay” or the “Company) Non-Employee Director Compensation Plan(the “Plan”) is to advance the interests of NovaBay and its stockholders by closely aligning the interests of the Non-Employee Directors with the Company and itsstockholders. This Plan requires the payment of the annually established compensation payable to Non-Employee Directors for their service to be in cash and restrictedstock units that vest into the Company’s Common Stock (“RSUs”). RSUs issuable under this Plan shall be from the stockholder approved 2017 Omnibus Incentive Plan. 2. Administration. The Compensation Committee of the Board (the “Committee”) shall administer the Plan. The Committee shall, subject to the provisions of thePlan, have the power to construe the Plan, to determine all questions arising thereunder, and to adopt and amend such rules and regulations for the administration of thePlan, as it may deem desirable. Any decisions of the Committee in the administration of the Plan, as described herein, shall be final and conclusive. The Committee mayauthorize any one or more of its members or any officer of the Company to execute and deliver documents on behalf of the Committee. No member of the Committee shallbe liable for anything done or omitted to be done by him or her or by any other member of the Board in connection with the Plan, except for his or her own willfulmisconduct or as expressly provided by statute. 3. Participation; Amount of Non-Employee Director Compensation. The Committee shall annually approve the amount of compensation payable for services to beperformed by Non-Employee Directors. Effective January 1, 2021 such fees shall be payable only in cash as follows: a.Cash Compensation StatusCompensationCommentNon-Employee Director$40,000 per yearPaid QuarterlyNon-Employee Chairman (inclusive of the above $40,000)$52,000 per yearPaid QuarterlyChairman of the Comp Committee$13,000 per yearPaid QuarterlyChairman of the Audit Committee$17,500 per yearPaid QuarterlyChairman of the N&CG Committee$10,000 per yearPaid QuarterlyMember of the Audit Committee$7,500 per yearPaid QuarterlyMember of the Comp Committee$6,000 per yearPaid QuarterlyMember of the N&CG Committee$5,000 per yearPaid Quarterly 4. Payment of Non-Employee Director Compensation. Each Non-Employee Director shall be paid the cash compensation payable to such Non-Employee Director as determined pursuant to Section 3 above on thefirst business day of the calendar quarter for such quarter. In addition to the above cash compensation, each Non-Employee Director shall receive an annual restricted stock unit grant of 30,000 shares, granted at theCompany’s Annual Meeting of Stockholders. To be eligible to receive the annual grant of RSUs, the director must be a current member of the Board. Newly elected, orre-elected members, are eligible for the annual grant. If a Board member is retiring or is not re-elected at the Annual Meeting, he/she is not eligible for the annual grant.Vesting of the RSUs shall be on the one year anniversary of the grant date. 5. Miscellaneous Provisions. (a) Neither the Plan nor any action taken hereunder shall be construed as giving any Non-Employee Director any right to be elected or re-elected as a director of theCompany. (b) A participant’s rights and interest under the Plan may not be assigned or transferred, hypothecated, or encumbered in whole or in part either directly or byoperation of law or otherwise (except in the event of a participant’s death, by will, or the laws of descent and distribution), including, but not by way of limitation,execution, levy, garnishment, attachment, pledge, bankruptcy, or in any other manner, and no such right or interest of any participant in the Plan shall be subject to anyobligation or liability of such participant. (c) The Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of assets to assurethe payment of the Non-Employee Director’s compensation. (d) The provisions of this Plan shall be governed by and construed in accordance with the laws of the State of California. (e) Headings are given to the sections of this Plan solely as a convenience to facilitate reference. Such headings, numbering, and paragraphing shall not in any casebe deemed in any way material or relevant to the construction of this Plan or any provisions thereof. The use of the singular shall also include within its meaning theplural, where appropriate, and vice versa. 6. Termination. This Plan shall terminate upon the earlier of the following dates or events to occur: (a)upon the adoption of a resolution of the Committee and approved by the Board terminating the Plan; or (b)December 31, 2022. 2 Exhibit 21 Subsidiaries of NovaBay Pharmaceuticals, Inc. The following is the sole subsidiary of NovaBay Pharmaceuticals, Inc.: Name State of IncorporationDERMAdoctor, LLC Missouri Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We hereby consent to the incorporation by reference in Registration Statements on Form S-1 (Nos. 333-234330, 333-238317, 333-261443 and 333-262550), RegistrationStatements on Form S-3 (Nos 333-211943, 333-211944, 333-230672, 333-233623, 333-248238 and 333-254744) and in Registration Statements on Form S-8 (Nos. 333-147334,333-157041, 333-164469, 333-171981, 333-180461, 333-185998, 333-194383, 333-196764, 333-203109, 333-208985, 333-211754, 333-215680, 333-218469, 333-222625, 333-236328and 333-252155) of our report dated March 29, 2022, relating to the consolidated financial statements of NovaBay Pharmaceuticals, Inc. for the year ended December 31,2021, which appears in this Annual Report on Form 10-K. /s/ WithumSmith+Brown, PC San Francisco, CaliforniaMarch 29, 2022 Exhibit 23.2 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We hereby consent to the incorporation by reference in Registration Statements on Form S-1 (Nos. 333-234330, 333-238317, 333-261443 and 333-262550), RegistrationStatements on Form S-3 (Nos. 333-211943, 333-211944, 333-230672, 333-233623, 333-248238 and 333-254744) and in Registration Statements on Form S-8 (Nos. 333-147334,333-157041, 333-164469, 333-171981, 333-180461, 333-185998, 333-194383, 333-196764, 333-203109, 333-208985, 333-211754, 333-215680, 333-218469, 333-222625, 333-236328and 333-252155) of our report dated March 25, 2021, relating to the consolidated financial statements of NovaBay Pharmaceuticals, Inc. for each of the two years in theperiod ended December 31, 2020, which appears in this Annual Report on Form 10-K. /s/ OUM & CO. LLP San Francisco, CaliforniaMarch 29, 2022 Exhibit 31.1 CERTIFICATION PURSUANT TO EXCHANGE ACTRULE 13a-14(a)/15d-14(a), AS ADOPTED PURSUANT TOSECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Justin Hall, certify that: 1. I have reviewed this Form 10-K of NovaBay Pharmaceuticals, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, inlight of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition,results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensurethat material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during theperiod in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, toprovide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance withgenerally accepted accounting principles; (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness ofthe disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter(the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internalcontrol over financial reporting; and 5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’sauditors and the audit committee of the registrant’s Board of Directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely toadversely affect the registrant’s ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control overfinancial reporting. Date: March 29, 2022 /s/ Justin Hall Justin HallChief Executive Officer, General Counsel and Director (principal executive officer) Exhibit 31.2 CERTIFICATION PURSUANT TO EXCHANGE ACTRULE 13a-14(a)/15d-14(a), AS ADOPTED PURSUANT TOSECTION 302 OF THE SARBANES-OXLEY ACT OF 2002 I, Andrew Jones, certify that: 1. I have reviewed this Form 10-K of NovaBay Pharmaceuticals, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, inlight of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition,results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensurethat material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during theperiod in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, toprovide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance withgenerally accepted accounting principles; (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness ofthe disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter(the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internalcontrol over financial reporting; and 5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’sauditors and the audit committee of the registrant’s Board of Directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely toadversely affect the registrant’s ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control overfinancial reporting. Date: March 29, 2022 /s/ Andrew Jones Andrew JonesChief Financial Officer(principal financial officer) Exhibit 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. §1350,AS ADOPTED PURSUANT TOSECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the annual report of NovaBay Pharmaceuticals, Inc. (the Company) on Form 10-K for the fiscal year ended December 31, 2021 (the Report), I, JustinHall, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to the bestof my knowledge: 1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: March 29, 2022 /s/ Justin Hall Justin HallChief Executive Officer, General Counsel and Director This Certification is made solely for the purpose of 18 USC Section 1350, subject to the knowledge standard contained therein, and not for any other purpose. Exhibit 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. §1350,AS ADOPTED PURSUANT TOSECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the annual report of NovaBay Pharmaceuticals, Inc. (the Company) on Form 10-K for the fiscal year ended December 31, 2021 (the Report), I, AndrewJones, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. §1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to thebest of my knowledge: 1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: March 29, 2022 /s/ Andrew Jones Andrew JonesChief Financial Officer This Certification is made solely for the purpose of 18 USC Section 1350, subject to the knowledge standard contained therein, and not for any other purpose.

Continue reading text version or see original annual report in PDF format above