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Table of Contents

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

(Mark One)

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the quarterly period ended March 31, 2022

 

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)

 

Delaware

68-0454536

(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)

 

Registrants Telephone Number, Including Area Code: (510) 899-8800

 

Securities Registered Pursuant to Section 12(b) of the Act:

 

Title of Each Class

Trading Symbol(s)

Name of Each Exchange On Which Registered

Common Stock, par value $0.01 per share

NBY

NYSE American

 

Securities Registered Pursuant to Section 12(g) of the Act: None.

 

 

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 the preceding 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 90 days. Yes ☒    No ☐

 

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation 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 emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer 

Accelerated filer 

Emerging growth company

Non-accelerated filer 

Smaller reporting company 

   

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

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 May 10, 2022, there were 52,618,364 shares of the registrant's common stock outstanding.

 

 
 

 

NOVABAY PHARMACEUTICALS, INC.

 

TABLE OF CONTENTS

 

PART I

FINANCIAL INFORMATION

     

Item 1.

Financial Statements

3

     
 

Condensed Consolidated Balance Sheets: March 31, 2022 (unaudited) and December 31, 2021

3

     
 

Condensed Consolidated Statements of Operations and Comprehensive Loss: Three months ended March 31, 2022 and 2021 (unaudited)

4

     
 

Condensed Consolidated Statements of Stockholders Equity (Deficit): Three months ended March 31, 2022 and 2021 (unaudited)

5

     
 

Condensed Consolidated Statements of Cash Flows: Three months ended March 31, 2022 and 2021 (unaudited)

6

     
 

Notes to Condensed Consolidated Financial Statements (unaudited)

7

     

Item 2.

Managements Discussion and Analysis of Financial Condition and Results of Operations

35

     

Item 3.

Quantitative and Qualitative Disclosures About Market Risk

45

     

Item 4.

Controls and Procedures

46

     

PART II

OTHER INFORMATION

     

Item 1.

Legal Proceedings

47

     

Item 1A.

Risk Factors

47

     

Item 2.

Unregistered Sales of Equity Securities and Use of Proceeds

47

     

Item 3.

Defaults Upon Senior Securities

47

     

Item 4.

Mine Safety Disclosure

47

     

Item 5.

Other Information

47

     

Item 6.

Exhibits

48
     

SIGNATURES

51

   

EXHIBIT INDEX

48

 

Unless the context requires otherwise, all references in this report to “we,” “our,” “us,” the “Company” and “NovaBay” refer to NovaBay Pharmaceuticals, Inc., a Delaware 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®. The Company owned trademarks are designated as “®” when referenced in this document; all other trademarks and trade names are the property of their respective owners.

 

 
 

PART I

FINANCIAL INFORMATION

 

ITEM 1.

FINANCIAL STATEMENTS

 

 

NOVABAY PHARMACEUTICALS, INC.

CONDENSED CONSOLIDATED BALANCE SHEETS

(In thousands, except par value amounts)

 

   

March 31,

   

December 31,

 
   

2022

   

2021

 
   

(Unaudited)

         

ASSETS

               

Current assets:

               

Cash and cash equivalents

  $ 5,641     $ 7,504  

Accounts receivable, net of allowance for doubtful accounts ($0 at March 31, 2022 and December 31, 2021)

    2,300       1,668  

Inventory, net of allowance for excess and obsolete inventory and lower of cost or estimated net realizable value adjustments ($522 and $641 at March 31, 2022 and December 31, 2021, respectively)

    3,785       3,220  

Prepaid expenses and other current assets

    752       778  

Total current assets

    12,478       13,170  

Operating lease right-of-use assets

    2,331       411  

Property and equipment, net

    187       193  

Goodwill

    4,528       4,528  

Other intangible assets, net

    5,109       5,200  

Other assets

    161       476  

TOTAL ASSETS

  $ 24,794     $ 23,978  
                 

LIABILITIES AND STOCKHOLDERS' EQUITY

               

Liabilities:

               

Current liabilities:

               

Accounts payable

  $ 1,556     $ 1,045  

Accrued liabilities

    2,763       2,092  

Line of credit

          105  

Operating lease liabilities

    465       200  

Total current liabilities

    4,784       3,442  

Operating lease liabilities-non-current

    1,922       246  

Warrant liability

          9,558  

Contingent earnout liability

    342       561  

Total liabilities

    7,048       13,807  

Commitments & contingencies (Note 12)

                 

Stockholders' equity:

               

Preferred stock, $0.01 par value; 5,000 shares authorized; 13 and 14 issued and outstanding at March 31, 2022 and December 31, 2021, respectively

    609       680  

Common stock, $0.01 par value; 150,000 and 100,000 shares authorized, 51,419 and 47,766 shares issued and outstanding at March 31, 2022 and December 31, 2021, respectively

    514       478  

Additional paid-in capital

    158,621       150,900  

Accumulated deficit

    (141,998 )     (141,887

)

Total stockholders' equity

    17,746       10,171  

TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY

  $ 24,794     $ 23,978  

 

The accompanying notes are an integral part of these condensed consolidated financial statements. 

 

 

 

NOVABAY PHARMACEUTICALS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS

(Unaudited)

(In thousands, except per share data)

 

   

Three Months Ended March 31,

 
   

2022

   

2021

 

Sales:

               

Product revenue, net

  $ 2,623     $ 1,801  

Other revenue, net

    6       6  

Total sales, net

    2,629       1,807  
                 

Product cost of goods sold

    1,113       455  

Gross profit

    1,516       1,352  

Operating expenses:

               

Research and development

    28       5  

Sales and marketing

    1,687       1,680  

General and administrative

    2,183       1,187  

Total operating expenses

    3,898       2,872  

Operating loss

    (2,382 )     (1,520

)

                 

Unrealized gain on changes in fair value of warrant liability

    2,056        

Unrealized gain on changes in fair value of contingent liability

    219        

Other (expense) income, net

    (4 )     2  
                 

Loss before provision for income taxes

    (111 )     (1,518

)

Provision for income taxes

           

Net loss and comprehensive loss

  $ (111 )   $ (1,518

)

                 

Net loss per share attributable to common stockholders (basic and diluted)

  $ 0.00     $ (0.04

)

Weighted-average shares of common stock used in computing net loss per share attributable to common stockholders (basic and diluted)

    50,088       41,782  

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

 

 

NOVABAY PHARMACEUTICALS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY (DEFICIT)

(Unaudited)

(in thousands)

 

   

Preferred Stock

   

Common Stock

   

Additional

Paid-

    Accumulated    

Total

Stockholders’

Equity

 
   

Shares

   

Amount

   

Shares

   

Amount

    In Capital     Deficit     (Deficit)  

Balance at December 31, 2021

    14     $ 680       47,766     $ 478     $ 150,900     $ (141,887 )   $ 10,171  
                                                         

Net Loss

    -       -       -       -       -       (111 )     (111 )

Reclassification of Private Placement Warrants

    -       -       -       -       7,502       -       7,502  

Conversion of Series B Non-Voting Preferred Stock to common stock

    (1 )     (71 )     3,653       36       35       -       -  

Stock-based compensation expense related to employee and director stock options

    -       -       -       -       184       -       184  
                                                         

Balance at March 31, 2022

    13     $ 609       51,419     $ 514     $ 158,621     $ (141,998 )   $ (17,746 )

 

 

 
   

Preferred Stock

   

Common Stock

   

Additional

Paid-

    Accumulated    

Total

Stockholders’

Equity

 
   

Shares

   

Amount

   

Shares

   

Amount

    In Capital     Deficit     (Deficit)  

Balance at December 31, 2020

    -       -       41,782     $ 418     $ 147,963     $ (136,063 )   $ 12,318  
                                                         

Net Loss

    -       -       -       -       -       (1,518 )     (1,518 )

Stock-based compensation expense related to employee and director stock options

    -       -       -       -       130       -       130  

Stock-based compensation expense related to non-employee stock options

    -       -       -       -       53       -       53  

Balance at March 31, 2021

    -     $ -       41,782     $ 418     $ 148,146     $ (137,581 )   $ 10,983  

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

 

 

NOVABAY PHARMACEUTICALS, INC.

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(Unaudited) 

(In thousands)

 

   

Three Months Ended March 31,

 
   

2022

   

2021

 
                 

Operating activities:

               

Net loss

  $ (111 )   $ (1,518

)

Adjustments to reconcile net loss to net cash used in operating activities:

               

Depreciation and amortization

    30       9  
Amortization of intangible assets     91        

Stock-based compensation expense for options and stock issued to employees and directors

    184       130  

Stock-based compensation expense for options and stock issued to non-employees

          53  

Unrealized gain on changes in fair value of warrant liability

    (2,056

)

     

Unrealized gain on changes in fair value of contingent liability

    (219 )      

Changes in operating assets and liabilities:

               

Accounts receivable

    (632

)

    68  

Inventory

    (565 )     (242

)

Prepaid expenses and other current assets

    26       (174

)

Operating lease right-of-use assets

    (1,920

)

    86  

Other assets

    (8 )      

Accounts payable and accrued liabilities

    1,182       267  

Operating lease liabilities

    1,941       (98

)

Net cash used in operating activities

    (2,057

)

    (1,419

)

                 

Investing activities:

               

Purchases of property and equipment

    (24 )     (25 )

Net cash used in investing activities

    (24 )     (25 )
                 

Financing activities:

               

Payment on the line of credit

    (105

)

     

Net cash used in financing activities

    (105

)

     

Net decrease in cash, cash equivalents, and restricted cash

    (2,186

)

    (1,444

)

Cash, cash equivalents and restricted cash, beginning of year

    7,979       12,427  

Cash, cash equivalents and restricted cash, end of period

  $ 5,793     $ 10,983  

 

 
   

Three Months Ended March 31,

 
   

2022

   

2021

 

Supplemental disclosure of cash flow information:

               

Interest paid

  $ 4     $  

 

 
   

Three Months Ended March 31,

 
   

2022

   

2021

 

Supplemental disclosure of non-cash information:

               

Warrant liability transferred to equity

    7,502       -  

Addition of operating lease, right-of-use asset

    2,039       -  

Conversion of Series B Non-Voting Preferred Stock to common stock

    71       -  

 

The accompanying notes are an integral part of these condensed 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 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. Avenova Spray is available direct to consumers through online distribution channels and is also often prescribed and dispensed by eyecare professionals for blepharitis and dry-eye disease. Other eyecare products offered 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-owned subsidiary (the “DERMAdoctor Acquisition”). DERMAdoctor offers 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 of international 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, on which date it acquired all of the operating assets of NovaCal Pharmaceuticals, LLC, a California limited liability company. In February 2007, it changed its name from NovaCal Pharmaceuticals, Inc. to NovaBay Pharmaceuticals, Inc. In June 2010, the Company changed the state in which it was incorporated (the “Reincorporation”) and is 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 the Reincorporation and to the Delaware corporation on and after the date of the Reincorporation. The Company is managed as two reportable segments: (1) Optical & Wound Care and (2) Skin Care.

 

Liquidity

 

Based primarily on the funds available at March 31, 2022, management believes that the Company’s existing cash and cash equivalents and cash flows generated from product sales will be sufficient to enable the Company to meet its planned operating expenses at least through May 12, 2023. However, changing circumstances may cause the Company to expend cash significantly faster than currently anticipated, and the Company may need to spend more cash than currently expected because of circumstances beyond its control. Additionally, our future results, cash expenditures and ability to obtain additional external financing could be adversely affected by the COVID-19 pandemic and general adverse economic conditions.

 

 

NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES 

 

Basis of Presentation

 

The accompanying unaudited condensed 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. In management’s opinion, the condensed consolidated financial statements include all normal and recurring adjustments that are considered necessary for the fair presentation of the Company’s financial position and operating results.

 

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 the unaudited condensed consolidated financial statements and accompanying notes. These estimates include contract liabilities related to product sales, useful lives for property and equipment and related depreciation calculations, assumptions for valuing options and warrants, the fair value of contingent consideration, intangible assets, goodwill, stock-based compensation, income taxes and other contingencies as of March 31, 2022.

 

These estimates are based on management’s best estimates and judgment. Actual results may differ from these estimates. Estimates, judgments, and assumptions are continuously evaluated and are based on management’s experience and other factors, including expectations of future events that are believed to be reasonable under the circumstances. Uncertainty about these assumptions, judgments and estimates could result in outcomes that require a material adjustment to the carrying amount of assets 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 cash equivalents are stated at cost, which approximates fair value. As of March 31, 2022 and December 31, 2021, the Company’s cash and cash equivalents were held in a highly-rated, major financial institution in the United States.

 

- 7-

 

The following table provides a reconciliation of the cash, cash equivalents, and restricted cash reported in the condensed consolidated balance sheets that sum to the total of the same reported in the condensed consolidated statements of cash flows (in thousands):

 

   

March 31,

   

December 31,

 
   

2022

   

2021

 

Cash and cash equivalents

  $ 5,641     $ 7,504  

Restricted cash included in other assets

    152       475  

Total cash, cash equivalents, and restricted cash in the condensed consolidated statements of cash flows

  $ 5,793     $ 7,979  

 

The restricted cash amount included in other assets on the condensed consolidated balance sheets represents amounts held as certificates of deposit for long-term financing and lease 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 Company maintains 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 due to the financial position of the financial institution in which the deposits are held. 

 

During the three months ended March 31, 2022 and 2021, revenues were derived primarily from sales of Avenova-branded products, directly to consumers through Amazon.com, and Avenova.com. During the three months ended March 31, 2022, revenues also included sales of DERMAdoctor-branded products.

 

During the three months ended March 31, 2022 and 2021, revenues from significant product categories were as follows (in thousands):

 

   

Three Months Ended March 31,

 
   

2022

   

2021

 

Avenova Spray

  $ 1,426     $ 1,575  

DERMAdoctor

    891        

NeutroPhase

    148        

Other products

    158       226  

Total product revenue, net

    2,623       1,801  

Other revenue, net

    6       6  

Total sales, net

  $ 2,629     $ 1,807  

 

- 8-

 

During the three months ended March 31, 2022 and 2021, sales of Avenova Spray via Amazon comprised 77% and 65% of total Avenova Spray net revenue, respectively. No other individual distributor comprised greater than 10% of total Avenova Spray net revenue during the three months ended March 31, 2022 or 2021. A major U.S. retailer comprised 25% of DERMAdoctor net revenue for the three months ended March 31, 2022 with no comparable revenue for the three months ended March 31, 2021.

 

As of March 31, 2022 and December 31, 2021, accounts receivable from our major distribution partners and major retailers greater than 10% were as follows:

 

   

March 31,

   

December 31,

 

Major distribution partner

 

2022

   

2021

 
Major U.S. Retailer     35 %     33 %

Avenova Spray Pharmacy Distributor B

    14

%

    11

%

Avenova Spray Pharmacy Distributor A

    13

%

    13

%

 

 

The Company relies on seven contract manufacturers to produce its products. The Company does not own any manufacturing facilities and intends to continue to rely on 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 or quality. 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 contingent consideration. The Company’s cash and cash equivalents, accounts receivable, accounts payable, and accrued liabilities are carried at cost, which management believes approximates 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 are measured 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 to sell 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 for inputs used in measuring fair value that maximizes the use of observable inputs and minimizes the use of unobservable inputs by requiring that the most observable inputs be used when available. Observable inputs are inputs market participants would use in valuing the asset or liability developed based on market data obtained from sources independent of the Company. Unobservable inputs are inputs that reflect the Company’s assumptions about the factors market participants would use in valuing 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 fair value:

 

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; and

Level 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 be collected. Management identifies amounts due that are in dispute and believes are unlikely to be collected. Management recorded no reserve for accounts receivable at March 31, 2022 and December 31, 2021.

 

- 9-

 

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 filled but unlabeled bottles; 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 or estimated net realizable value determined by the first-in, first-out method. At both March 31, 2022 and December 31, 2021, management had recorded an allowance for excess and obsolete inventory and lower of cost or estimated net realizable value adjustments of $522 thousand and $641 thousand, 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 estimated useful 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 seven years 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 method requires identifiable assets acquired and liabilities assumed be recognized and measured at fair value on the acquisition date, which is the date that the acquirer obtains control 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 and liabilities 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 the use of significant estimates and assumptions, including assumptions with respect to future cash inflows and outflows, discount rates, and asset lives, among other items. 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 the acquisition 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 be up 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 in circumstances indicate that it is more likely than not that the assets are impaired. There were no impairment charges as of March 31, 2022 and December 31, 2021.

 

Intangible Asset

 

Fair Value (in

thousands)

   

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. We record contingent consideration resulting from a business combination at its fair value on the acquisition date. Each quarter thereafter, we revalue these obligations and record increases or decreases in their fair value within our Statement of Operations and Comprehensive Loss 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 of achieving 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.

 

- 10-

 

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 that an 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 least annually 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 lives of 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 asset and 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 down to their estimated fair values and the loss is recognized in the statements of operations. There were no impairment charges as of March 31, 2022 and December 31, 2021.

 

- 11-

 

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. The interest rate implicit in lease contracts is typically not readily determinable. As such, the Company utilizes its incremental borrowing rate, which is the rate incurred to borrow, 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-use assets 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 is recognized 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 current and 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 be reported.

 

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 recognizes revenue when or as the Company’s performance obligations are satisfied by transferring control of the promised goods to customers in an amount that reflects the consideration 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 which are recognized upon fulfillment, which generally occurs upon delivery of the related products to a third-party carrier. Shipping and handling costs are expensed as incurred 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 products to a third-party carrier. We present revenue net of commissions and any related fulfillment and shipping fees charged by these partners. Fees paid to partners for promoting our products are expensed as incurred and are included in sales and marketing expenses within the operating expenses in the consolidated statements of operations and comprehensive loss.

 

The Company also generates Avenova Spray revenue through major pharmacy distribution partners. Product supply of Avenova Spray is the only performance obligation contained in these arrangements, and the Company recognizes product revenue upon transfer of control to its major distribution partners at the amount of consideration that the Company expects to be entitled to, generally upon delivery to the distributor on a “sell-in” basis. Upon recognition of product sales, contract liabilities are recorded for invoiced amounts that are subject to significant reversal, including product revenue allowances for cash consideration paid to customers for services, 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 upon delivery of the products to a third-party carrier, net of estimated future product returns.

 

- 12-

 

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 also includes 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 regulatory activities, including submissions to the Food and Drug Administration (the “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 the consolidated statements of operations and comprehensive loss.

 

Advertising Costs

 

Advertising costs are expensed in the period in which the costs are incurred. Advertising expenses were $0.6 million and $0.7 million for the three months ended March 31, 2022 and 2021, respectively.

 

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 earned under 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. The Company accounts for RSUs issued to employees and non-employees (consultants and 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 consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences 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 that includes 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.

 

- 13-

 

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 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 or settlement in its own shares (physical settlement or net-share settlement). The Company classifies as assets or liabilities any contracts that (i) require net-cash settlement (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 a choice of net-cash settlement or settlement in shares (physical settlement or net-share settlement) or (iii) do not become exercisable until the occurrence of contingent event. Additionally, for common stock purchase warrants accounted for in accordance with ASC 718, Stock Compensation, the Company classifies as liabilities any contracts 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 fair value 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 subject to 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 stockholders 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 options or 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 Series B Non-Voting Preferred Stock (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 as a result of such securities not having a contractual obligation to participate in losses of the Company. 

 

- 14-

 

The following table sets forth the calculation of basic EPS and diluted EPS (in thousands, except per share amounts):

 

   

Three Months Ended March 31,

 

Numerator

 

2022

   

2021

 

Net loss

  $ (111 )   $ (1,518 )
                 

Denominator

               

Weighted average shares of common stock outstanding, basic and diluted

    50,088       41,782  

Net loss per share attributable to common stockholders, basic and diluted

  $ 0.00     $ (0.04 )

 

 

The following outstanding stock options and stock warrants were excluded from the diluted EPS computation as their effect would have been anti-dilutive (in thousands):

 

   

Three Months Ended March 31,

 
   

2022

   

2021

 

Stock options

    4,416       3,138  

Stock warrants

    44,582       7,082  
      48,998       10,220  

 

 

 

Recent Accounting Pronouncements

 

For information regarding recent accounting pronouncements that could affect our business, results of operations, financial condition, and liquidity, see Note 2, “Summary of Significant Accounting Policies” included in our Annual Report on Form 10-K for the year ended December 31, 2021, which was filed with the SEC on March 29, 2022. The Company continues to evaluate the potential impact of adopting the new accounting guidance on its consolidated financial position, results of operations and cash flows.

 

- 15-

 

 

NOTE 3. BUSINESS COMBINATION

 

On November 5, 2021, the Company completed the DERMAdoctor Acquisition in which NovaBay acquired 100% of the membership 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 $3.0 million over a period of two calendar years post-closing.

 

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 liabilities assumed be recognized at their estimated fair values as of the Acquisition Closing. Goodwill represents the excess of the consideration transferred over the estimated fair 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 intangible assets 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            

 

- 16-

 

The valuations of intangible assets incorporate significant unobservable inputs and require significant judgment and estimates, including the amount and timing of future 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 administrative expense” 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 are reported in two operating segments: (1) Optical & Wound Care and (2) Skincare (see Note 20, “Segment Reporting” below).

 

 

 

NOTE 4. FAIR VALUE MEASUREMENTS 

 

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 or dealer quotations, or alternative pricing sources with reasonable levels of price transparency. The types of investments that are generally classified within Level 1 of the fair 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”).

 

The following table presents the Company's assets measured at fair value on a recurring basis as of March 31, 2022 (in thousands):

 

           

Fair Value Measurements Using

 
   

Balance at

   

Quoted Prices in

   

Significant

   

Significant

 
   

March 31,

   

Active Markets

   

Other

   

Unobservable

 
   

2022

   

for Identical

   

Observable

   

Inputs

 
           

Items

   

Inputs

   

(Level 3)

 
           

(Level 1)

   

(Level 2)

         

Assets

                               

Deposit held as a certificate of deposit

    152       152              

Total assets

  $ 152     $ 152     $     $  
                                 

Liabilities

                               

Warrant liability

  $                 $  

Contingent earnout liability

    342                   342  

Total liabilities

  $ 342     $     $     $ 342  

 

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) as of March 31, 2022 (in thousands):

 

Fair value of warrant liability at December 31, 2021

  $ 9,558  

Decrease in fair value of 2021 Warrants

    (2,056

)

Reclassification of warrant liability to equity

    (7,502

)

Fair value of warrant liability at March 31, 2022

  $  
         

Fair value of contingent liability at December 31, 2021

  $ 561  

Decrease in fair value of contingent liability

    (219

)

Fair value of contingent liability at March 31, 2022

  $ 342  

 

- 17-

 

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 Prices in

   

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  

 

 

 

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) as of 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  

 

 

 

NOTE 5. PREPAID EXPENSES AND OTHER CURRENT ASSETS

 

Prepaid expenses and other current assets consisted of the following (in thousands):

 

   

March 31,

   

December 31,

 
   

2022

   

2021

 

Prepaid inventory

  $ 335     $ 367  

Prepaid dues and subscription

    93       18  

Prepaid insurance

    77       138  

Prepaid consultant

    8       68  

Prepaid patents

    8       9  

Prepaid sales rebates

    3       19  

Prepaid rent

          14  

Other

    228       145  

Total prepaid expenses and other current assets

  $ 752     $ 778  

 

- 18-

 
 

NOTE 6. INVENTORY

 

Inventory consisted of the following (in thousands):

 

   

March 31,

   

December 31,

 
   

2022

   

2021

 

Raw materials and supplies

  $ 1,446     $ 1,179  

Finished goods

    2,861       2,682  

Less: Reserve for excess and obsolete inventory

    (522

)

    (641

)

Total inventory, net

  $ 3,785     $ 3,220  

 

 

 

NOTE 7. PROPERTY AND EQUIPMENT 

 

Property and equipment consisted of the following (in thousands):

 

   

March 31,

   

December 31,

 
   

2022

   

2021

 

Office and laboratory equipment

  $ 20     $ 20  

Furniture and fixtures

    157       157  

Computer equipment and software

    464       464  

Production equipment

    138       114  

Leasehold improvements

    79       79  

Total property and equipment, at cost

    858       834  

Less: accumulated depreciation and amortization

    (671

)

    (641

)

Total property and equipment, net

  $ 187     $ 193  

 

Depreciation and amortization expense was $30 thousand and $9 thousand for the three months ended March 31, 2022 and 2021, respectively.

 

 

 

NOTE 8. GOODWILL

 

Goodwill is accounted for in accordance to ASC 350, Intangibles-Goodwill and Other. We do not amortize goodwill, but rather test for impairment annually or more frequently if events or circumstances indicate that an asset may be impaired. There were no indications of impairment during the three months ended March 31, 2022. For the DERMAdoctor acquisition, there were no material measurement period adjustments recorded to the fair values of assets acquired and liabilities assumed during the period.  No goodwill impairment was recognized as of March 31, 2022. Goodwill was $4.5 million as of both March 31, 2022 and December 31, 2021.

 

- 19-

 
 

NOTE 9. OTHER INTANGIBLE ASSETS

 

Other intangible assets consisted of the following (in thousands):

  

   

Balance at December 31, 2021

 
           

Accumulated

         
   

Gross

   

Amortization

   

Net

 

Indefinite-lived intangible assets

                       

Trade names

  $ 2,080     $     $ 2,080  
                         

Amortizable intangible assets

                       

Customer relationships

  $ 290     $ (7 )   $ 283  

Trade secrets / product formulations

    2,890       (53 )     2,837  
                         

Total other intangible assets

  $ 5,260     $ (60 )   $ 5,200  

 

   

Balance at March 31, 2022

 
           

Accumulated

         
   

Gross

   

Amortization

   

Net

 

Indefinite-lived intangible assets

                       

Trade names

  $ 2,080     $     $ 2,080  
                         

Amortizable intangible assets

                       

Customer relationships

  $ 290     $ (17 )   $ 273  

Trade secrets / product formulations

    2,890       (134 )     2,756  
                         

Total other intangible assets

  $ 5,260     $ (151 )   $ 5,109  

 

Amortization expense was $91 thousand and $0 for the three months ended March 31, 2022 and 2021, respectively. Based on the amortizable intangible assets as of March 31, 2022, future amortization expenses were as follows (in thousands):

 

2022

  $ 272  

2023

    363  

2024

    363  

2025

    363  

2026

    363  

Thereafter

    1,305  

Total

  $ 3,029  

 

- 20-

 
 

NOTE 10. ACCRUED LIABILITIES 

 

Accrued liabilities consisted of the following (in thousands):

 

   

March 31,

   

December 31,

 
   

2022

   

2021

 

Contract liabilities (see Note 16)

  $ 1,914     $ 1,289  

Employee payroll and benefits

    397       443  

Audit services

    95        

Other

    357       360  

Total accrued liabilities

  $ 2,763     $ 2,092  

 

 

 

NOTE 11. 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 outstanding on the line of credit at the time of Acquisition Closing. The line of credit was terminated and repaid in full on January 6, 2022. The line of credit had an interest rate equal to the Wall Street Journal Prime Rate plus 1.50% with a floor of 5.00%. All borrowings were collateralized by substantially all assets of DERMAdoctor. As of March 31, 2022, there was no outstanding balance on the line of credit.

 

 

 

NOTE 12. 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 the officer 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. The maximum amount of potential future indemnification is unlimited; however, the Company has a director and officer insurance policy that limits its exposure and may enable it to recover a portion of any future payments. The Company believes the fair value of these indemnification agreements is minimal. Accordingly, it has not recorded any liabilities for these agreements as of March 31, 2022. 

 

In the normal course of business, the Company provides indemnification of varying scope under its agreements with other entities, typically its clinical research organizations, investigators, clinical sites, suppliers, and others. Pursuant to these agreements, it generally indemnifies, holds harmless, and agrees to reimburse the indemnified 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 is generally perpetual. The potential future payments the Company could be required to make under these indemnification agreements is unlimited. Historically, costs related to these indemnification provisions have been immaterial. The Company also maintains various liability insurance policies that limit its exposure. As a result, it believes the fair value of these indemnification agreements is minimal. Accordingly, the Company has not recorded any liabilities for these agreements as of March 31, 2022. 

 

Legal Matters

 

As of March 31, 2022, there were no legal matters that, in the opinion of management, would ultimately result in liability that would have a material adverse effect on the 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 was scheduled to expire on February 28, 2022, but on January 19, 2022, the Company exercised its option to extend the term and amended the lease to extend the term through July 31, 2027.

 

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 and administrative functions. The lease commenced on October 1, 2019 and expires on December 31, 2024.

 

- 21-

 

In calculating the present value of the lease payments, the Company utilized its incremental borrowing rate. The Company has elected to account for each lease component and its associated non-lease components as a single lease component and has allocated all of the contract consideration across lease components only. This will potentially result in the initial and subsequent measurement of the balances of the right-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 area maintenance) 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 and lease liability, but are reflected as an expense in the period incurred.

 

The components of lease expense for the three months ended March 31, 2022 and 2021 were as follows (in thousands):

 

Lease Costs

 

Three Months Ended March 31,

 
   

2022

   

2021

 

Operating lease cost

  $ 134     $ 99  

Net lease cost

  $ 134     $ 99  
                 

Other information

               

Operational cash flow used for operating leases

  $ 111     $ 113  

 

The Company has measured its operating lease liabilities at its incremental borrowing rate over the remaining term for each operating lease. The weighted average remaining lease term and the weighted average discount rate are summarized as follows:

 

   

Three Months Ended March 31,

 
   

2022

   

2021

 

Weighted-average remaining lease term (in years)

    5.0       1.0  

Weighted-average discount rate

    5

%

    12

%

 

Future lease payments under non-cancelable leases as of March 31, 2022 were as follows (in thousands):

 

2022

  $ 430  

2023

    535  

2024

    549  

Thereafter

    1,166  

Total future minimum lease payments

    2,680  

Less imputed interest

    (293

)

Total

  $ 2,387  
         

Reported as:

       

Operating lease liability

  $ 465  

Operating lease liability- non-current

    1,922  

Total

  $ 2,387  

 

- 22-

 

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 CelleRx product (the “TLF Agreement”) which was further amended on September 4, 2020 and subsequently terminated on February 4, 2021. Under the TLF Agreement, the Company paid TLF Bio Innovation a monthly cash fee and issued 15,000 warrants to TLF Bio Innovation on January 22, 2021(see Note 14, “Stockholders’ Equity”).

 

- 23-

 
 

NOTE 13. WARRANT LIABILITY

 

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 Warrants in 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 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 cash-settle the warrants was deemed to be beyond the Company’s control. The fair value of outstanding warrants was determined at each reporting 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 $3.1 million, $2.0 million and $0.1 million, respectively.

 

- 24-

 

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 reduced exercise 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 in the 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 2019 Domestic 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 Domestic

Warrants

   

2019 Foreign

Warrants

 

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 March 31, 2022.

 

In the third quarter of 2020, as further described in Note 14, “Stockholders’ Equity”, the Company amended the 2019 Ladenburg Warrants. The Company’s potential obligation to cash-settle the warrants if a specified fundamental transaction occurred was amended to apply only in situations within the Company’s control. Pursuant to this change, the 2019 Ladenburg Warrants were no longer classified as liabilities. The warrant liability associated with the 2019 Ladenburg Warrants was adjusted to fair value as of the date of the amendment, with the change in fair value recorded in the consolidated statements of operations and comprehensive loss. The fair value was then transferred 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 key assumptions:

 

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 as of March 31, 2022.

 

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 required that the Company obtain stockholder approval for an increase in authorized shares before they became exercisable. Under ASC 480, Distinguishing Liabilities from Equity, the 2021 Warrants were classified as liabilities as of December 31, 2021 and until the 2021 Warrants became exercisable. The 2021 Warrants became exercisable subsequent to December 31, 2021, on January 31, 2022. On January 31, 2022, our stockholders met and approved the necessary increase in authorized share capital available to meet the assumed exercise or conversion of its issued warrants and convertible preferred stock.  On January 31, 2022, as a result of the stockholder approval of the increase in authorized share capital, the warrants issued in November 2021 became exercisable and were reclassified from a liability to equity because the warrants require physical settlement or net share settlement. Accordingly, there is no fair value of warrant liabilities recorded in the Company’s balance sheet as of March 31, 2022.

 

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  

 

- 25-

 

 

NOTE 14. STOCKHOLDERS' EQUITY

 

Preferred Stock and 2021 Warrants

 

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 its Amended 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 “2021 Private 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 of 37,500,000 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. The 2021 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 immediately exercisable 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 Stock upon 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 Issuance Proposal”) and (ii) obtain stockholder approval of an amendment to the Company’s Amended and Restated Certificate of Incorporation to increase the number of authorized 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 of stockholders on December 17, 2021 (the “Special Meeting”) at which the Share Issuance Approval was approved by stockholders and, at a subsequent adjournment of the Special Meeting on January 31, 2022, the stockholders approved the Authorized Share Increase Proposal. As a result of these stockholder approvals, the Warrants became exercisable subsequent to December 31, 2021 and will continue to be exercisable for a period of six (6) years thereafter.

 

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 initially subject to approval of the Share Issuance Proposal. Until the Share Issuance Proposal was approved by stockholders at the Special Meeting, the holders of the Preferred 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 2021 Private 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, this limitation 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 rights or 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 or grant 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 at an 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 first allocated $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 key assumptions 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 an increase to additional paid in capital. The Company fully amortized the discount related to the beneficial conversion feature on the deemed dividend in the consolidated statements 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 to the 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.

 

During the first quarter of 2022, 1,461 shares of the Preferred Stock were converted into 3,652,500 shares of common stock. Each share of the Preferred Stock is currently convertible into 2,500 shares of common stock. There were 13 thousand shares of the Preferred Stock outstanding as of March 31, 2022.

 

- 26-

 

Common Stock

 

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 issued under the 2021 ATM Program for total net proceeds of $1.8 million, net of offering costs of $0.1 million.

 

- 27-

 

Common Stock Warrants

 

2019 Domestic 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. The 2019 Domestic Warrants were issued with an exercise price of $1.15 per share 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 Company first allocated $3.1 million to the 2019 Domestic Warrants, with the residual amount allocated to the common stock. See Note 13, “Warrant Liability” for further discussion 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, and 167,942 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 and paid 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 costs to the warrant liability which was expensed in the Company’s consolidated statements of operations and comprehensive loss during the period. The remaining $0.3 million 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 as a 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 additional paid-in capital in the Company’s consolidated balance sheets. See Note 13, “Warrant Liability” for further discussion of the key assumptions used to value the 2019 Ladenburg 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 which resulted 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 the exercises. 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 the transaction, 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 letter agreements, in consideration for the exercise in full of the 2019 Domestic Warrants and 2019 Foreign Warrants, the Company agreed to: (1) reduce the exercise 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 stock purchase 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 2019 Foreign 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 an exercise 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 the 2019 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 stock and the July 2020 Warrants as, the proceeds, even if allocated, would be both recognized in additional paid-in capital. All July 2020 Warrants remained outstanding as of March 31, 2022.

 

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 amended certain terms of the 2019 Ladenburg Warrants. The Company’s potential obligation to cash-settle the warrants if a specified fundamental transaction occurred was amended to apply only in situations within the Company’s control. As further described in Note 13 “Warrant Liability”, the 2019 Ladenburg Warrants were no longer classified as a liability as a result of this amendment.

 

TLF Bio Innovation 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 per share (the “TLF Warrants”). The TLF Warrants will expire five years after their issuance. The TLF Warrants are classified as equity.

 

- 28-

 

The details of all outstanding warrants as of March 31, 2022 were as follows:

 

   

Warrants
(in thousands)

   

Weighted-

Average

Exercise

Price

 

Outstanding at December 31, 2021

    7,082     $ 1.63  

Warrants granted

    37,500     $ 0.53  

Outstanding at March 31, 2022

    44,582     $ 0.71  

 

 

 

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, as determined 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 awards continue 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 outstanding under the 2007 Plan were fully vested as of March 31, 2022.

 

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 the granting of equity awards, such as nonqualified stock options (“NQSOs”), incentive stock options (“ISOs”), restricted stock, performance shares, stock appreciation rights (“SARs”), RSUs and other share-based awards to employees, directors, and consultants, as determined by the Board.  The 2017 Plan does not affect awards previously 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 automatic annual 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, 2027 equal 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 of common 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 awards under the 2017 Plan was increased by 1,671,303 shares. As of  March 31, 2022, there were 1,525,680 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 of grant 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 of grant. 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’s stock. 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 for awards issued under the 2007 Plan and the 2017 Plan.

 

- 29-

 

Stock Option Summary 

 

The following table summarizes information about the Company’s stock options outstanding at March 31, 2022 and activity during the period ended March 31, 2022:

 

(in thousands, except years and per share data)

 

Options

   

Weighted-

Average

Exercise

Price

   

Weighted-

Average

Remaining

Contractual

Life (years)

   

Aggregate

Intrinsic

Value

 

Outstanding at December 31, 2021

    4,449     $ 1.39       7.6     $ 460  
                                 

Options granted

    332     $ 0.30                  

Options forfeited/cancelled

    (21

)

  $ 10.94                  

Outstanding at March 31, 2022

    4,760     $ 1.27       7.6     $ 356  

Vested and expected to vest at March 31, 2022

    4,416     $ 1.33       7.5     $ 313  
                                 

Vested at March 31, 2022

    2,218     $ 2.30       5.8     $  
                                 

Exercisable at March 31, 2022

    2,218     $ 2.30       5.8     $  

 

 

The aggregate intrinsic value is calculated as the difference between the exercise price of the underlying stock option awards and the closing market price of the Company’s common stock as quoted on the NYSE American as of March 31, 2022 for options that have a quoted market price in excess of the exercise price. There were no stock option awards exercised during the three months ended March 31, 2022. The Company received no cash payments for the exercise of stock options during the three months ended March 31, 2022.

 

As of March 31, 2022, total unrecognized compensation cost related to unvested stock options and restricted stock units was approximately $1.1 million. This amount is expected to be recognized as stock-based compensation expense in the Company’s unaudited condensed consolidated statements of operations and comprehensive loss over the remaining weighted average vesting period of 2.25 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 the options 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 the single-option valuation approach. The application of this valuation model involves assumptions that are judgmental and subjective in nature. See Note 2, “Summary of Significant Accounting Policies,” for a description of the accounting policies that the Company applied to value its stock-based awards. 

 

During the three months ended March 31, 2022 and 2021, the Company granted options to employees and directors to purchase an aggregate of 332,000 and 55,000 shares of common stock, respectively.

 

- 30-

 

The weighted-average assumptions used in determining the value of options are as follows: 

 

 

   

Three Months Ended March 31,

 

Assumption

 

2022

   

2021

 

Expected price volatility

    160.47 %     164.44 %

Expected term (in years)

    6.45       6.19  

Risk-free interest rate

    1.63 %     1.09 %

Dividend yield

    0.00 %     0.00 %

Weighted-average fair value of options granted during the period

  $ 0.29     $ 1.04  

 

 

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 volatility was 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’s historical 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 the extent to which actual forfeitures differ, or are expected to differ, from the previous estimate.

 

During the three months ended March 31, 2022 and 2021, the Company did not grant restricted stock to employees.

 

For the three months ended March 31, 2022 and 2021, the Company recognized stock-based compensation expense of $184 thousand and $130 thousand, respectively, for stock-based awards to employees and directors.  

 

Stock-Based Awards to Non-Employees

 

During the three months ended March 31, 2022 and 2021, the Company did not grant options exercisable for shares of common stock to non-employees in exchange for advisory and consulting services.

 

When the Company grants stock options, the stock options are recorded at their fair value on the grant date and recognized over the respective service or vesting period. The fair value of the stock options that are granted is calculated using the Black-Scholes-Merton option pricing model.

 

In addition, during the three months ended March 31, 2022 and 2021, the Company did not grant restricted stock to non-employees.

 

For the three months ended March 31, 2022, the Company recognized a nominal stock-based compensation expense as compared to stock-based compensation expense of $53 thousand for the three months ended March 21, 2021, related to non-employee stock option grants. 

 

- 31-

 

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 (in thousands): 

 

 

   

Three Months Ended March 31,

 
   

2022

   

2021

 

Research and development

  $ 4     $ 4  

Sales and marketing

    12       31  

General and administrative

    168       148  

Total stock-based compensation expense

  $ 184     $ 183  

 

 

 

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 amount of consideration that the Company expects to be entitled to. The Company records contract liabilities for the amounts that are estimated to be subject to significant reversal, 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 three months ended March 31, 2022 (in thousands): 

 

   

Balance at

December

31, 2021

   

Additions

   

Deductions

   

Balance at

the end of

the

Period

 

Contract liabilities: deferred revenue

  $ 2     $ 69     $ (2

)

  $ 69  

Contract liabilities: accrued liabilities (includes contract assets)

    1,270       842       (201 )     1,911  

Total

  $ 1,272     $ 911     $ (203 )   $ 1,980  

 

- 32-

 

For the three months ended March 31, 2022 and 2021, the Company recognized the following revenue (in thousands):

 

   

Three Months Ended March 31,

 
   

2022

   

2021

 

Revenue recognized in the period from:

               

Amounts included in contract liabilities at the beginning of the period:

               

Performance obligations satisfied

  $ 201     $ 575  

New activities in the period:

               

Performance obligations satisfied

    2,428       1,232  
                 
    $ 2,629     $ 1,807  

 

 

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, Cardinal Health and AmerisourceBergen. We have also entered into direct agreements with preferred pharmacy networks as part of our Partner Pharmacy Program. The Company incurred net sales loss of $199 thousand during the three months ended March 31, 2022, and net sales revenue of $122 thousand during the three months ended March 31, 2021 for its Avenova Spray product from these distribution and partner pharmacy agreements. The net loss during the three months ended March 31, 2022, was the result of an increase in returns for expired product from a major pharmacy retail chain.

 

Under the prescription Avenova Spray product distribution arrangements, the Company had a contract liability balance of $1.3 million and $0.9 million as of  March 31, 2022 and December 31, 2021, respectively. The contract liability is included in accrued liabilities in the condensed consolidated balance sheets. The Company also recorded a prepayment of $3 thousand and $19 thousand for rebates related to these distribution agreements as of March 31, 2022 and December 31, 2021, respectively, that is recorded in the prepaid expenses and other current assets in the condensed 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 Company with more stable pricing and provide customers with easy access to our product. During the three months ended March 31, 2022 and 2021, the revenue generated from over-the-counter Avenova Spray was $1.4 million and $1.2 million, respectively. 

 

DERMAdoctor

 

DERMAdoctor products are available through wholesale distribution relationships with third parties such as Costco, Amazon and others. The Company had a contract liability balance of $0.6 million and $0.4 million as of  March 31, 2022, and December 31, 2021, respectively. The contract liability is included in accrued liabilities in the condensed consolidated balance sheets.

 

 

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 period ended December 31, 2021. The Company made an election to change the terms of the 401(k) plan such that, beginning on January 1, 2022, the Company made matching contributions equal to 100% of the first 3% of compensation deferred, plus 50% of the next 2% of compensation deferred.

 

- 33-

 

 

 

NOTE 18. 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 three months ended March 31, 2022 and 2021, respectively (in thousands): 

 

   

Three Months Ended March 31,

 
   

2022

   

2021

 

Related party revenue:

               

NeutroPhase

  $ 148     $  

Total related party revenue

  $ 148     $  
                 

Cost of goods sold:

               

NeutroPhase

  $ (134

)

  $  

Total related party expenses

  $ (134

)

  $  

 

Related party accounts receivable was $0.1 million as of both March 31, 2022 and December 31, 2021.

 

- 34-

 
 

NOTE 19. 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 Protection Program (“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 Loan were subsequently revised in accordance with the provisions of the Paycheck Protection Flexibility Act of 2020, or the PPP Flexibility Act, which was enacted on September 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 and interest 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. Funds from 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 after receiving 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 amount for 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 accounted for the forgivable PPP Loan as a government income grant that we earned through the Company’s compliance with the loan forgiveness criteria. A deferred income liability was recognized upon receipt of the forgivable loan proceeds. The deferred income liability was recognized as other income as Qualifying Expenses were incurred. For the year ended December 31, 2020, $0.9 million was recognized as other income and recorded in the consolidated statements of operations and comprehensive loss. No amount was recognized for the period ended March 31, 2022.

 

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 20. SEGMENT REPORTING

 

The Company’s chief operating decision maker (“CODM”), who is the Company’s Chief Executive Officer, allocates resources and assesses performance based on financial information of the Company. The CODM reviews financial information presented for each reportable segment for purposes of making operating decisions and assessing financial performance.

 

Prior to the DERMAdoctor Acquisition in November 2021 (see Note 3, “Business Combination”), the Company was managed as a single segment focused on commercializing Avenova Spray in the United States. After the DERMAdoctor Acquisition, the Company began managing and aggregating its operational and financial information in accordance with two reportable segments: (1) Optical &Wound Care and (2) Skin Care. The Optical & Wound Care segment consists of products historically sold by NovaBay prior to the DERMAdoctor Acquisition. The Skin Care segment consists of products acquired in the DERMAdoctor Acquisition and skincare products subsequently sold under the DERMAdoctor brand.

 

Select financial information for each segment is as follows (in thousands):

 

   

Three Months Ended March 31,

 
   

2022

   

2021

 

Net sales

               

Optical & Wound Care

  $ 1,738     $ 1,807  

Skincare

    891        

Consolidated

  $ 2,629     $ 1,807  

Operating loss

               

Optical & Wound Care

  $ (2,039 )   $ (1,520 )

Skincare

    (343 )      

Consolidated

  $ (2,382 )   $ (1,520 )

 

The Company’s reportable segments are strategic business units that offer different products. Each segment is managed independently because they require different operations and markets to distinct classes of customers. Operating costs included in one segment may benefit other segments, and therefore these segments are not designed to measure operating income or loss directly related to the products included in each segment. Management will continually evaluate the alignment of product development organizations, sales organizations, and inter-segment commissions for segment reporting purposes, which may result in changes to segment allocations in future periods.

 

- 35-

 
 

ITEM 2.

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 notes included in Part I, Item 1 of this report. This discussion contains forward-looking statements that involve risks and uncertainties, and with our consolidated financial statements and related notes, and Managements Discussion and Analysis of Financial Condition and Results of Operations, included in our Annual Report on Form 10-K for the year ended December 31, 2021, which was filed with the Securities and Exchange Commission (theSEC) on March 29, 2022. Words such as "expects," "anticipated," "will," "may," "goals," "plans," "believes," "estimates," "concludes," determines," variations of these words, and similar expressions are intended to identify these forward-looking statements. As a result of many factors, including those set forth in our SEC filings, our actual results may differ materially from those anticipated in these forward-looking statements. Readers are cautioned that these forward-looking statements 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 to revise 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 includes a 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 30 dermatologist-developed skincare products under our DERMAdoctor brand.

 

On November 5, 2021, we purchased DERMAdoctor, LLC (“DERMAdoctor”) for approximately $12.0 million as well as $3.0 million of contingent consideration payable in cash or our common stock over the next two years upon the achievement of certain contribution margin targets. For additional information regarding the DERMAdoctor Acquisition, see Note 3 “Business Combination” in the Notes to Unaudited Condensed Consolidated Financial Statements in Part I, Item 1 of this report.

 

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 37,500,000 shares 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 additional information regarding the Preferred Stock and the 2021 Warrants, see Note 13, “Warrant Liability” and Note 14, “Stockholders’ Equity” in the Notes to Unaudited Condensed Consolidated Financial Statements in Part I, Item 1 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 Moist Heating 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 commercialize our eyecare and skincare products and integrate the DERMAdoctor business. Our net loss was $111 thousand for the three months ended March 31, 2022 and a net loss of $1.5 million for the three months ended March 31, 2021. As of March 31, 2022, we had an accumulated deficit of $142 million and current assets totaling $12.5 million.

 

We expect to grow commercial sales of 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.

 

 

Critical Accounting Policies and Estimates

 

Our condensed consolidated financial statements have been prepared in accordance with generally accepted accounting principles in the United States. The preparation of these condensed consolidated financial statements requires us to make estimates, assumptions and judgments that affect the reported amounts of assets and liabilities and the disclosure of 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 these condensed consolidated financial statements, management has made its best estimates and judgments of certain amounts, giving due consideration to materiality. On an ongoing basis, 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 the circumstances. 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 Condensed Consolidated Financial Statements in Part I, Item 1 of this report, we believe that the following accounting policies are most critical to fully understanding and evaluating our reported financial results.

 

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 be collected. Management identifies amounts due that are in dispute, and it believes are unlikely to be collected. Management recorded no reserve for accounts receivable at March 31, 2022 and December 31, 2021.

 

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 or estimated net realizable value determined by the first-in, first-out method. At both March 31, 2022 and December 31, 2021, management had recorded an allowance for excess and obsolete inventory and lower of cost or estimated net realizable value adjustments of $522 thousand and $641 thousand, respectively. 

 

Business Combinations 

 

We account for business combinations using the acquisition method of accounting, in accordance with ASC 805, Business Combinations. The acquisition method requires identifiable assets acquired and liabilities assumed be recognized and measured at fair value on the acquisition date, which is the date that the acquirer obtains control 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 and liabilities 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 the use of significant estimates and assumptions, including assumptions with respect to future cash inflows and outflows, discount rates, and asset lives, among other items.  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 the acquisition 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 be up to one year from the acquisition date. We do not amortize goodwill and intangible assets with indefinite useful lives. Goodwill and indefinite-lived intangible assets are 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 (in

thousands)

   

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. We record contingent consideration resulting from a business combination at its fair value on the acquisition date. Each quarter thereafter, we revalue these obligations and record increases or decreases in their fair value within our condensed consolidated statements of operations and comprehensive loss 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 of achieving 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 that an 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 least annually 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 lives of 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 asset and 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 down to their estimated fair values and the loss is recognized in the condensed consolidated statements of operations and comprehensive loss. There were no impairment charges during the periods ended March 31, 2022 and December 31, 2021, respectively.

 

 

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. The interest rate implicit in lease contracts is typically not readily determinable. As such, the Company utilizes its incremental borrowing rate, which is the rate incurred to borrow, 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-use assets 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 is recognized 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 current and 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 upon delivery 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 the condensed consolidated 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-party carrier. We present revenue net of commissions and any related fulfillment and shipping fees charged by these partners. Fees paid to partners for promoting our product are expensed as incurred and are included in sales and marketing expenses within the operating expenses in the condensed consolidated statements of operations and comprehensive loss.

 

The Company also generates Avenova Spray revenue through major pharmacy distribution partners. Product supply of Avenova Spray is the only performance obligation contained in these arrangements, and the Company recognizes product revenue upon transfer of control to its major distribution partners at the amount of consideration that the Company expects to be entitled to, generally upon delivery to the distributor on a “sell-in” basis. Upon recognition of product sales, contract liabilities are recorded for invoiced amounts that are subject to significant reversal, including product revenue allowances for cash consideration paid to customers for services, 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 products to 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) during the three months ended March 31, 2022:

 

   

Wholesaler/

Pharmacy

fees

   

Cash
discounts

   

Rebate

   

Returns

   

Total

 
                                         

Balance at December 31, 2021

  $ (84

)

  $ (13

)

  $ (375

)

  $ (798

)

  $ (1,270

)

Current provision related to sales made during current period

    (40

)

    (18

)

    (328 )     (456

)

    (842 )

Payments

    16       6       123       56       201  

Balance at March 31, 2022

  $ (108

)

  $ (25

)

  $ (580

)

  $ (1,198 )   $ (1,911 )

 

 

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 also includes 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 regulatory activities, including submissions to the Food and Drug Administration (“FDA”).

 

Advertising Costs

 

Advertising costs are expensed in the period in which the costs are incurred. Advertising expenses were $0.6 million and $0.7 million for the three months ended March 31, 2022 and 2021, respectively.

 

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 earned under 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 Unaudited Condensed Consolidated Financial Statements in Part I, Item 1 of this report for further information regarding stock-based compensation expense and the assumptions used in estimating that expense. The Company accounts for RSUs issued to employees and non-employees (consultants and 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 consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences 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 that includes 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 Standards Codification (“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 or settlement in its own shares (physical settlement or net-share settlement). The Company classifies as assets or liabilities any contracts that (i) require net-cash settlement (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 counterparty a 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 fair value as a non-cash gain or loss in the condensed 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 subject to a significant degree of management’s judgment.

 

 

Segment Reporting

 

Operating segments are defined as components of an entity for which separate financial information is available and that is regularly reviewed by the Chief Operating Decision Maker (the “CODM”) in deciding how to allocate resources to an individual segment and in assessing performance. The Company’s Chief Executive Officer is the Company’s CODM. The CODM reviews financial information presented on a business line basis in making operating decisions, allocating resources, and evaluating financial performance. The Company has determined that it operates as two operating segments.

 

 

Recent Accounting Pronouncements

 

For information regarding recent accounting pronouncements that could affect our business, results of operations, financial condition, and liquidity, see Note 2, “Summary of Significant Accounting Policies” included in our Annual Report on Form 10-K for the year ended December 31, 2021, which was filed with the SEC on March 29, 2022. The Company continues to evaluate the potential impact of adopting the new accounting guidance on its consolidated financial position, results of operations and cash flows.

 

 

Results of Operations

 

Comparison of the Three Months Ended March 31, 2022 and 2021

 

   

Three Months Ended

March 31,

    Dollar     Percent  
    2022     2021     Change     Change  
Statement of Operations                                
Sales:                                

Product revenue, net

  $ 2,623     $ 1,801     $ 822       46

%

Other revenue, net

    6       6             0

%

Total sales, net

    2,629       1,807       822       46

%

                                 

Product cost of goods sold

    1,113       455       658       145

%

Gross profit

    1,516       1,352       164       12

%

                                 

Research and development

    28       5       23       460

%

Sales and marketing

    1,687       1,680       7       0

%

General and administrative

    2,183       1,187       996       84

%

Total operating expenses

    3,898       2,872       1.026       36

%

Operating loss

    (2,382 )     (1,520

)

    (862 )     57

%

                                 

Non-cash gain on changes in fair value of warrant liability

    2,056             2,056       100

%

Non-cash gain on changes in fair value of contingent liability

    219             219       100

%

Other (expense) income, net

    (4

)

    2       (6

)

    (300

%)

                                 

Loss before provision for income taxes

    (111 )     (1,518

)

    1,407       (93 %)

Provision for income taxes

                       

Net loss and comprehensive loss

  $ (111 )   $ (1,518

)

  $ 1,407       (93 %)

 

 

Impact of DERMAdoctor Acquisition

 

The Acquisition Closing for DERMAdoctor took place on November 5, 2021 (see Note 3, “Business Combination” in the Notes to Unaudited Condensed Consolidated Financial Statements in Part I, Item 1 of this report) Accordingly, the above results for the three months ended March 31, 2022 include the financial results of DERMAdoctor, which includes product revenue, net, of $0.9 million, goods sold of $0.5 million, $0.4 million in sales and marketing costs and $0.2 million in general and administrative costs, with no comparable operating results for the three months ended March 31, 2021.

 

Total Net Sales, Cost of Goods Sold and Gross Profit

 

Product revenue, net, increased by $0.8 million, or 46%, to $2.6 million for the three months ended March 31, 2022, from $1.8 million for the three months ended March 31, 2021.

 

Revenue from Avenova Spray decreased by $0.2 million in 2022 from $1.6 million for the three months ended March 31, 2021 to $1.4 million for the three months ended March 31, 2022. The decrease reflects an unanticipated increase in expired Avenova Spray units returned from retail pharmacies for product purchased prior to the launch of our over-the-counter Avenova Spray product in 2019 and the beginning of the COVID-19 pandemic in 2020. The decrease was partially offset by an overall increase in the number of Avenova Spray units sold during the three months ended March 31, 2022, as compared to the three months ended March 31, 2021. The increase in units sold reflects continued higher number of over-the-counter and physician dispensed units sold, partially offset by a continued decrease in the number of units sold through pharmacy channels. The overall increase in revenue due to unit sales was also partially offset by the lower average net selling price associated with over-the-counter and physician dispensed units as compared to units sold through our pharmacy channels.

 

 

We also recognized product revenue, net, of $0.9 million from the sale of DERMAdoctor products during the three months ended March 31, 2022 with no comparable revenue during the three months ended March 31, 2021.

 

Cost of goods sold increased by 145%, to $1.1 million for the three months ended March 31, 2022, from $0.5 million for the three months ended March 31, 2021. This increase was primarily due to $0.5 million in cost of goods sold recognized from the sales of DERMAdoctor products for the three months ended March 31, 2022 with no comparable cost of goods sold for the three months ended March 31, 2021.

 

 

Gross profit increased by 12%, to $1.5 million for the three months ended March 31, 2022, from $1.4 million for the three months ended March 31, 2021.

 

Sales and marketing

 

Sales and marketing expenses increased by $7 thousand, for the three months ended March 31, 2022. The increase was due to $0.4 million in sales and marketing costs incurred for DERMAdoctor products for the three months ended March 31, 2022, with no comparable expenditures in the 2021 period. The increase was offset by fewer sales representative headcount employed during the three months ended March 31, 2022 period as compared to the 2021 period. Additionally, results for the 2021 period include costs incurred in conjunction with the relaunch of the Company’s CelleRx Clinical Reset product with no comparable expenditures during the three months ended March 31, 2022. Going forward, the Company anticipates focusing sales and marketing resources on the DERMAdoctor brand instead of driving growth of CelleRx Clinical Reset.

 

General and administrative 

 

General and administrative expenses increased by $1.0 million, or 84%, to $2.2 million for the three months ended March 31, 2022, from $1.2 million for the three months ended March 31, 2021.

 

Results for the three months ended March 31, 2022 include $0.2 million in DERMAdoctor general and administrative costs and $0.1 million from the amortization of intangibles related to the DERMAdoctor Acquisition with no comparable expenses in the 2021 period. The Company also incurred one-time costs related to a special meeting of stockholders held in January 2022 with no comparable expenditures in the 2021 period. Employee-related costs, including non-cash stock-based compensation costs, were also higher for the three months ended March 31, 2022 as compared to the 2021 period.

 

Additionally, during the three months ended March 31, 2021, the Company received an insurance reimbursement for costs incurred in conjunction with a dispute with the Company’s former Interim President and Chief Executive Officer and Chief Financial Officer which reduced general and administrative costs in the 2021 period.

 

Non-cash gain (loss) on changes in fair value of warrant liability 

 

Adjustments to the fair value of warrant liability resulted in a gain of $2.1 million for the three months ended March 31, 2022. The warrant liability was reclassified to equity during the three months ended March 31, 2022 and will no longer require fair value adjustments which will impact our results of operations. For additional information regarding the warrant liability and their valuation, please see Note 13, “Warrant Liability”, in the Notes to Unaudited Condensed Consolidated Financial Statements, in Part I, Item 1 of this report.

 

Other (expense) income, net

 

Other (expense) income, net, was $215 thousand for the three months ended March 31, 2022 as compared to $2 thousand for the three months ended March 31, 2021. During the three months ended March 31, 2022, the Company recorded $219 thousand in income for an adjustment to the fair value of a contingent earnout liability. For additional information regarding the contingent earnout liability, please see Note 4, “Fair Value Measurements”, in the Notes to Unaudited Condensed Consolidated Financial Statements, included in Part I, Item 1 of this report.

 

Liquidity and Capital Resources 

 

As of March 31, 2022, our cash and cash equivalents were $5.6 million, compared to $7.5 million as of December 31, 2021. Based primarily on the funds available at March 31, 2022, management believes that the Company’s existing cash and cash equivalents and cash flows generated from product sales will be sufficient to enable the Company to meet its planned operating expenses at least through May 12, 2023. However, changing circumstances may cause the Company to expend cash significantly faster than currently anticipated, and the Company may need to spend more cash than currently expected because of circumstances beyond its control that impact the broader economy such as the COVID-19 pandemic and the conflict between Russia and Ukraine.

 

 

Cash Used in Operating Activities

 

Net cash used in operating activities was $2.1 million for the three months ended March 31, 2022, which consisted primarily of a net loss of $111 thousand, adjusted primarily by non-cash gain of $2.1 million on the change in fair value of warrant liability, non-cash gain of $219 thousand on the change in fair value of contingent liability, stock-based compensation expenses of $184 thousand, and a net increase of $24 thousand in our net operating assets and liabilities.

 

Net cash used in operating activities was $1.4 million for the three months ended March 31, 2021, which consisted primarily of a net loss of $1.5 million, adjusted by stock-based compensation expenses of $0.2 million, and a net change of $0.1 million in our net operating assets and liabilities.

 

Cash Used in Investing Activities

 

Net cash used in investing activities for the purchase of property and equipment was $24 and $25 thousand, for the three months ended March 31, 2022 and 2021, respectively.

 

Net Cash Used in Financing Activities

 

Net cash used in financing activities for the repayment of the DERMAdoctor line of credit, which was subsequently terminated in the first quarter of 2022, was $0.1 million for the three months ended March 31, 2022.

 

There was no cash used in, or provided by, financing activities during the three months ended March 31, 2021.

 

Net Operating Losses and Tax Credit Carryforwards

 

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 federal net 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 carryforward indefinitely but are subject to an 80% limitation for years following December 31, 2021. The state net operating loss carryforwards will begin 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 tax purposes. 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 a corporation. Accordingly, our ability to utilize net operating loss carryforwards may be limited as a result of such ownership changes. Such a limitation could result in the expiration of carryforwards before they are utilized.

 

 

Inflation

 

Our costs are subject to fluctuations, particularly due to change in the price of raw and packing materials and the cost of labor, transportation and operating supplies.  Therefore, our business results depend, in part, on our continued ability to manage these fluctuations through pricing actions, costs savings projects and sourcing decisions, while maintaining and improving margins and market share.  Failure to manage these fluctuations could adversely impact our results of operations or cash flows.

 

Off-Balance Sheet Arrangements

 

We did not have any off-balance sheet arrangements at March 31, 2022.

 

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 year typically being the lowest revenue quarter. This annual phenomenon is due to consumers facing the need to satisfy health insurance deductibles and changes to copays as each new insurance year begins. Sales of Avenova Spray through non-prescription channels, along with the other Avenova branded products, experience less seasonality with demands consistent throughout the year.

 

Dermatology/Skincare Products

 

Our DERMAdoctor products are sold through third parties such as Costco, Amazon and others; therefore, we may receive periodic large orders that result in large chunks of revenue that are received in irregular intervals during the year. Historically sales of DERMAdoctor products that contain sunscreen and antiperspirants are higher in the summer seasons and sales of DERMAdoctor products that contain moisturizers are higher in the fall and winter months. In addition, DERMAdoctor products will typically experience an uptick in sales during the fourth quarter around the holidays of each country in which its products are sold, particularly in the United States and China.

 

Contractual Obligations

 

Our contractual cash commitments as of March 31, 2022 were as follows (in thousands):

 

Contractual Obligations

 

Less than 1

year

   

1-3 years

   

3-5 years

   

More than 5

years

   

Total

 

Facility leases

  $ 525     $ 1,490     $ 656     $     $ 2,671  

Equipment leases

    9                         9  

Total

  $ 534     $ 1,490     $ 656     $     $ 2,680  

 

Our commitments as of March 31, 2022 consisted primarily of facility operating leases and an operating lease for two copiers.

 

The total commitment for the facility leases as of March 31, 2022 was $2.7 million due over the leases’ terms, compared to $0.5 as of December 31, 2021.

 

We had an operating lease for two copiers as of March 31, 2022. The total commitment for the lease as of March 31, 2022 was $9 thousand due over the lease terms, compared to $13 thousand as of December 31, 2021.

 

See Note 12, “Commitments and Contingencies” in the Notes to Unaudited Condensed Consolidated Financial Statements in Part I, Item 1 of this report for further information regarding these leases.

 

ITEM 3.

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 March 31, 2022 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 goals of our investment policy are as follows: preservation of capital, assurance of liquidity needs, best available return on invested capital, and minimization of capital taxation. 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 of the 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 later rises, the principal amount of our investment will probably decline. To minimize this risk, in accordance with our investment policy, we maintain our cash and cash equivalents in short-term marketable securities, including money market mutual funds, Treasury bills, Treasury notes, certificates of deposit, commercial paper, and corporate and municipal bonds. The risk associated with fluctuating interest rates is limited to our investment portfolio. Due to the short-term nature of our investment portfolio, we believe we have minimal interest rate risk arising from our investments. As of March 31, 2022 and December 31, 2021, a 10% change in interest rates would have had an 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 instruments for 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.

 

 

ITEM 4.

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 our Chief 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 Securities Exchange 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 in all 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, our Chief Executive Officer and our Chief Financial Officer concluded that, as of the end of the period covered by this report, our disclosure controls and procedures were effective at the reasonable assurance level to ensure that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and were effective in ensuring that information required to be 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 Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

 

Changes in Internal Control Over Financial Reporting

 

There was no change in our internal control over financial reporting during the quarter ended March 31, 2022, that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

 

PART II. OTHER INFORMATION

 

ITEM 1.

LEGAL PROCEEDINGS

 

The “Legal Matters” section of Note 12. “Commitments and Contingencies” to the Notes to Unaudited Condensed Consolidated Financial Statements in Part I, Item 1 of this report is incorporated herein by reference.

 

ITEM 1A.

RISK FACTORS

 

For information regarding factors that could affect our business, results of operations, financial condition and liquidity, see the risk factors discussed under Part I, Item 1A included in our Annual Report on Form 10-K for the year ended December 31, 2021, which was filed with the SEC on March 29, 2022. We are a smaller reporting company as defined by Rule 12b-2 of the Securities Exchange Act of 1934 and, as such, are not required to provide updated quarterly information under this Item.

 

ITEM 1B.

UNRESOLVED STAFF COMMENTS

 

Not Applicable.

 

ITEM 2.

UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

 

None.

 

ITEM 3.

DEFAULTS UPON SENIOR SECURITIES

 

None.

 

ITEM 4.

MINE SAFETY DISCLOSURES

 

Not Applicable. 

 

ITEM 5.

OTHER INFORMATION

 

None.

 

 

ITEM 6.

EXHIBITS

 

The following exhibits are filed with or incorporated by reference into this report.

 

EXHIBIT INDEX

 

 

Incorporation by Reference

Filed

Herewith

Exhibit

Number

Exhibit Description

Form

File

Number

Exhibit/

Form 8-K

Item

Reference

Filing

Date

 

2.1

Membership Unit Purchase Agreement dated September 27, 2021, by and among the Company, DERMAdoctor, the Founders and the Sellers (as defined therein)

8-K

001-3678

2.1

9/28/2021

 

3.1

Amended and Restated Certificate of Incorporation of NovaBay Pharmaceuticals, Inc.

10-K

001-33678

3.1

3/21/2018

 

3.2

Amendment to the Amended and Restated Certificate of Incorporation

8-K

001-33678

3.1

6/04/2018

 

3.3

Amendment to the Amended and Restated Certificate of Incorporation, as amended

8-K

001-33678

3.1

5/28/2020

 

3.4

Amendment to the Amended and Restated Certificate of Incorporation, as amended, dated May 24, 2021

8-K

001-33678

3.1

5/24/2021

 

3.5

Amendment to the Amended and Restated Certificate of Incorporation, as amended, dated January 31, 2022

8-K

001-33678

3.1

2/1/2022

 

3.6

Certificate of Designation for the Series B Preferred Stock

8-K

001-33678

3.1

11/1/2021

 

3.7

Amended and Restated Bylaws

10-K 

001-33678 

3.7 

3/29/2022

 

4.1

Description of Securities

10-K

001-33678

4.1

3/29/2022

 

4.2

Form of Warrant pursuant to the Services Agreement with TLF Bio Innovation Lab, LLC, dated May 13, 2020

8-K

001-33678

4.1

5/18/2020

 

4.3

Form of July 2020 Warrant

8-K

001-33678

4.1

7/21/2020

 

4.4

Form of November 2021 Warrant

8-K

001-33678

4.1

11/01/2021

 

10.1

Office Lease by and between the Company and KBSIII Towers at Emeryville, LLC, dated August 24, 2016 (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on August 26, 2016)

8-K

001-33678

10.1

8/26/2016 

 

10.2

First Amendment to Office Lease by and between the Company and KBSIII Towers at Emeryville, LLC, dated January 24, 2022

8-K

001-33678

10.2

1/28/2022

 

10.3+

Executive Employment Agreement with Justin M. Hall, dated January 31, 2020 (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on February 6, 2020)

8-K

001-33678

10.1

2/6/2020

 

10.4+

First Amendment to Executive Employment Agreement with Justin M. Hall, dated January 26, 2022

8-K

001-33678

10.6

1/28/2022

 

 

 

31.1

Certification of the Principal Executive Officer of NovaBay Pharmaceuticals, Inc., as required by Rule 13a-14(a) or Rule 15d-14(a)

       

X

31.2

Certification of the Principal Financial Officer of NovaBay Pharmaceuticals, Inc., as required by Rule 13a-14(a) or Rule 15d-14(a)

       

X

32.1

Certification 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 of Title 18 of the United States Code (18 U.S.C. 1350)

       

X

32.2

Certification 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 of Title 18 of the United States Code (18 U.S.C. 1350)

       

X

101.INS

Inline XBRL Instance Document

       

X

101.SCH

Inline XBRL Taxonomy Extension Schema Document 

       

X

101.CAL

Inline XBRL Taxonomy Extension Calculation Linkbase Document

       

X

101.DEF

Inline XBRL Taxonomy Extension Definition Linkbase

       

X

101.LAB

Inline XBRL Taxonomy Extension Labels Linkbase Document

       

X

101.PRE

Inline XBRL Taxonomy Extension Presentation Linkbase Document

       

X

104

The Cover Page Interactive Data File, formatted in Inline XBRL (included within the Exhibit 101 attachments)

       

X

 

+

Indicates a management contract or compensatory plan or arrangement

 

 

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-Q to be signed on its behalf by the undersigned, thereunto duly authorized.

 

Date: May 12, 2022

 
 

By:

/s/   Justin Hall 

   

Justin Hall 

Chief Executive Officer, General Counsel and Director

(principal executive officer)

 

Date: May 12, 2022

 
 

By:

/s/   Andrew Jones 

   

Andrew Jones

Chief Financial Officer

(principal financial officer)

 

-51-
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