UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): August 19, 2025

NovaBay Pharmaceuticals, Inc.

(Exact Name of Registrant as Specified in its Charter)

Delaware	001-33678	68-0454536
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(I.R.S. Employer<br><br> <br>Identification No.)

2000 Powell Street, Suite 1150, Emeryville, CA 94608

(Address of Principal Executive Offices) (Zip Code)

(510) 899-8800

(Registrant’s telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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

Title of Each Class	Trading Symbol(s)	Name of Each Exchange On Which Registered
Common Stock, par value $0.01 per share	NBY	NYSE American

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter). Emerging growth company ☐

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

Item 1.01	Entry into a Material Definitive Agreement.

Overview

NovaBay Pharmaceuticals, Inc. (the “Company”) has been continuing to explore and evaluate strategic options available to the Company to maximize its value following the sale of the Company’s eyecare products sold under the Avenova brand and related assets to PRN Physician Recommended Nutriceuticals, LLC on January 17, 2025. Among these strategic options, the Company has been pursuing potential strategic transactions, including investments, mergers, reverse mergers, strategic partnerships, licensing and sub-licensing transactions. The Company also has the option to pursue a voluntary liquidation and dissolution under Delaware law (the “Dissolution”) pursuant to the Plan of Complete Liquidation and Dissolution of the Company that stockholders approved at the Company’s special meeting of stockholders held on April 16, 2025. Although stockholder approval of the Dissolution was received, the Board of Directors (the “Board”) was authorized to subsequently determine, in its discretion, whether or not to proceed with the Dissolution. Accordingly, the Board retained complete discretion to evaluate and determine if and when the Dissolution should be effected or if another strategic option would be a better opportunity to maximize the remaining value of the Company for its stockholders. Following the Company’s review of its strategic options, the Company determined that pursuing a strategic investment transaction that provides for a Special Dividend and a Post-Investment Transaction (both as defined below), instead of pursuing the Dissolution, is in the best interest of the Company and its stockholders at this time.

On August 19, 2025, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with David E. Lazar, an Israeli and E.U. citizen residing in Panama, that provides for the Company to sell in a private placement (i) an aggregate of 481,250 shares of Series D non-voting convertible preferred stock, par value $0.01 per share (the “Series D Preferred Stock”) convertible into an aggregate of 77.0 million shares (the “Series D Conversion Shares”) of the Company’s common stock, par value $0.01 (the “Common Stock”) for $3.85 million and (ii) an aggregate of 268,750 shares of Series E non-voting convertible preferred stock, par value $0.01 per share (the “Series E Preferred Stock”) convertible into an aggregate of 43.0 million shares (together with the Series D Conversion Shares, the “Conversion Shares”) of Common Stock for an additional $2.15 million (collectively, the “Investment”). The shares of Series D Preferred Stock and the shares of Series E Preferred Stock, upon becoming fully convertible, will represent in excess of 90% of the issued and outstanding shares of Common Stock on a fully diluted basis as of the Final Closing (as defined below). The Series D Preferred Stock and the Series E Preferred Stock are subject to certain conversion limitations as described below.

Simultaneous to entering into the Purchase Agreement on August 19, 2025, Mr. Lazar purchased 481,250 shares of Series D Preferred Stock from the Company at a price of $8.00 per share for aggregate gross proceeds to the Company of $3.85 million (the “First Closing”). The Purchase Agreement also contemplates that Mr. Lazar will separately purchase and acquire 268,750 shares of Series E Preferred Stock as soon as practicable after the Company receives the Conversion Approval (as defined below) at a price of $8.00 per share for aggregate gross proceeds of $2.15 million (the “Final Closing”), subject to the satisfaction of certain conditions to closing as provided in the Purchase Agreement. Pursuant to the Purchase Agreement, the net proceeds of the Investment will be used for the Company’s operations, including for general corporate and working capital purposes, for expenses related to the Investment and to satisfy certain agreed upon Company obligations. Additionally, after the Final Closing and subject to approval by the Board, the Company plans to use the net proceeds from the Investment to pursue a strategic transaction that would involve an investment and/or acquisition of an operating going concern and solvent company (the “Post-Investment Transaction”). In connection with the Investment (and as further detailed in Item 5.02 of this Current Report on Form 8-K below), the Board appointed Mr. Lazar as a director immediately prior to the First Closing and as Chief Executive Officer upon the effectiveness of the First Closing, with the Company’s former Chief Executive Officer, Justin Hall, continuing with the Company as its Vice President of Business Development, General Counsel and Corporate Secretary.

As a result of receiving the proceeds from the Investment, the Purchase Agreement contemplates the Company declaring a special dividend to stockholders after having entered into the Purchase Agreement (the “Special Dividend”). Pursuant to the Purchase Agreement, the Company will segregate into a separate bank account an amount comprised of the Company’s cash as set forth in the Purchase Agreement (the “Aggregate Cash Distribution Amount”). The Company expects to utilize up to the full amount of the Aggregate Cash Distribution Amount for the Special Dividend and expects to declare the Special Dividend in the fourth quarter of 2025. The Aggregate Cash Distribution Amount and matters relating to the Special Dividend, including the amount of the Special Dividend to be segregated into a separate bank account, will be under the direction and control of an independent Special Transaction Committee of the Board, which committee does not include Mr. Lazar or Mr. Hall among its members. Pursuant to the Purchase Agreement, the Series D Preferred Stock or Series E Preferred Stock will not be converted by Mr. Lazar until after the Special Dividend has been declared and paid to Company stockholders.

Securities Purchase Agreement

The Purchase Agreement entered into by the Company and Mr. Lazar contains customary representations, warranties, and covenants of the Company and Mr. Lazar, as well as indemnification rights, and other obligations of the parties.

The shares of Series D Preferred Stock issued at the First Closing, upon conversion, will represent approximately 61% of the Company’s issued and outstanding Common Stock on a fully diluted basis, and the Series E Preferred Stock to be issued, upon conversion, will represent approximately 34% of the Company’s issued and outstanding Common Stock on a fully diluted basis as of the Final Closing, or collectively approximately 95% in the aggregate (based on the number of shares of Common Stock anticipated to be outstanding as of the Final Closing). Since the Common Stock is currently listed on the NYSE American, LLC (“NYSE American”), the Company is required to comply with the continued listing rules of the NYSE American Company Guide (the “Company Guide”), and among these requirements are Section 713(a) and (b) of the Company Guide. Section 713(a) of the Company Guide requires stockholder approval in connection with any transaction, other than a public offering, involving the sale, issuance, or potential issuance, of common stock or securities convertible into common stock, equal to 20.0% or more of presently outstanding stock for less than the greater of book or market value. Section 713(b) of the Company Guide requires stockholder approval of a transaction, other than a public offering, involving the sale, issuance or potential issuance by an issuer of common stock (or securities convertible into, or exercisable for, common stock) when the issuance or potential issuance of additional shares may result in a change of control of the issuer. As a result of the significant number of shares of Common Stock that may be issued upon the future conversion of the Series D Preferred Stock and Series E Preferred Stock compared to the currently issued and outstanding shares of Common Stock as provided above, the Company will be required to obtain stockholder approval in accordance with the Company Guide Rule 713(a) and Rule 713(b) for Mr. Lazar to be able to convert the Series D Preferred Stock and the Series E Preferred Stock (the “Conversion Approval”). Each share of Series D Preferred Stock is convertible into 160 shares of Common Stock (or an aggregate of 77.0 million shares of Common Stock), and each share of Series E Preferred Stock will be convertible into 160 shares of Common Stock (or an aggregate of 43.0 million shares of Common Stock); provided that, in no event will the Series D Preferred Stock or Series E Preferred Stock be convertible into shares of Common Stock if such conversion would result in Mr. Lazar or his transferees, or affiliates, or any other persons acting as a group together with Mr. Lazar exceeding the “Share Issuance Limitation” prior to the date of Conversion Approval. The “Share Issuance Limitation” means the lesser of either (i) 19.99% of the outstanding Common Stock as of the date of the Purchase Agreement, which percentage shall take into account any shares then owned by such holder and any of their affiliates or (ii) the maximum percentage of the number of shares of Common Stock issuable upon conversion of the Preferred Stock that can be issued to Mr. Lazar without requiring a vote of the Company’s stockholders under the rules and regulations of the NYSE American.

Pursuant to the Purchase Agreement, the Company agrees to use its best efforts to hold the Company’s 2025 Annual Meeting of Stockholders (the “Annual Meeting”) early in the fourth quarter of 2025 for the purpose of obtaining the Conversion Approval, as well as obtaining stockholder approval of (i) an increase in the Company’s authorized shares of Common Stock to a maximum of 300 million shares, (ii) an increase in the Company’s authorized shares of preferred stock to a maximum of 10 million shares, (iii) the election of Company directors to the Board, including the Initial Nominee (as defined below) that is nominated by Mr. Lazar, as further summarized below, (iv) an increase in shares available under the Company’s 2017 Omnibus Incentive Plan to up to one (1) million shares, (v) the issuance of the Equity Consideration (as discussed and defined below) to the Resigning Non-Employee Directors (as defined below) as contemplated by the Release Agreements (as discussed and defined below) (the “Equity Consideration Approval”) and (vi) a reverse stock split of the Common Stock in the range of not less than 1-for-2 and not more than 1-for-10, with the specific ratio to be determined by, and the implementation to be in the sole and absolute discretion of, the Board (collectively, the “Stockholder Meeting Proposals”). To the extent that the Conversion Approval is not obtained, then the Company will be required to use its reasonable best efforts to call another stockholder meeting within seventy (70) days of the date of the Annual Meeting (the “Second Meeting”). If the Conversion Approval is not received at the Second Meeting, the Company agrees to issue to Mr. Lazar, in a private placement transaction, up to 19.99% of the Common Stock outstanding as of the date of the Purchase Agreement, at a price per share equal to the closing stock price of the Common Stock on the day of the Second Meeting plus $0.02, provided, that the number of shares of Common Stock that Mr. Lazar will be entitled to purchase shall be automatically reduced to a number of shares of Common Stock such that Mr. Lazar, together with his affiliates, will not own, beneficially or otherwise, shares of Common Stock in excess of 19.99% of the Common Stock outstanding as of the date of the Purchase Agreement. If Mr. Lazar acquires 19.99% of outstanding shares of Common Stock in aggregate following this private placement of Common Stock, then (1) he will have reached the Share Issuance Limitation and will not be entitled to convert shares of Series D Preferred Stock into Common Stock until after Conversion Approval has been received and (2) for avoidance of doubt, the dilution protections applicable to the Series D Preferred Stock and the Series E Preferred Stock will not be applicable to such transaction (as further discussed below).

The consummation of the First Closing on August 19, 2025 was subject to the satisfaction of customary closing conditions, including the accuracy of the representations and warranties in the Purchase Agreement and the delivery of certain transaction documents, including the Series F Agreements (as defined and described below), the Voting Agreement (as defined and described below), as well as the Hall Employment Agreement, the Law Employment Agreement and the Release Agreements (each as defined and described in Item 5.02 of this Current Report on Form 8-K below). In addition to Mr. Lazar being appointed as a director and Chief Executive Officer of the Company in connection with the Investment, pursuant to the Purchase Agreement, Mr. Lazar will have certain one-time contractual rights involving the Board. These rights include: (i) a one-time contractual right to recommend to the Company one (1) individual (the “Initial Nominee”), to be nominated for election at the Annual Meeting to serve as a director on the Board, provided that at the time this right is exercised, Mr. Lazar continues to own his shares of Series D Preferred Stock; (ii) subject to the Conversion Approval and the Final Closing occurring, a one-time contractual right to nominate up to three (3) individuals (the “Additional Purchaser Nominees”) to be qualified (including satisfying director “independence” requirements under the Company Guide) and appointed to serve as directors on the Board after the resignation of the current directors (other than the Continuing Director (as defined below)), following the Conversion Approval, the Equity Consideration Approval and the Final Closing occurring, as provided in such resigning director’s Release Agreements; and (iii) subject to the Conversion Approval and the Final Closing occurring, a one-time contractual right to be appointed as the Chair of the Board. The “Continuing Director” as contemplated above shall be a currently serving director on the Board who satisfies the “independence” requirements as set forth in the Company Guide and under the federal securities laws, who is currently contemplated by the Company to be Yenyou (Jeff) Zheng, Ph.D. Pursuant to the Purchase Agreement, when exercising his one-time right to appoint Additional Purchaser Nominees as provided above, Mr. Lazar will be entitled to nominate up to three (3) Additional Purchaser Nominees to the Board based on his beneficial ownership of Common Stock (including through his ownership of Preferred Stock convertible into Common Stock) at the time of such nomination as follows: (i) one (1) Additional Purchaser Nominee when Mr. Lazar beneficially owns 20% but less than 40% of the outstanding Common Stock; (ii) two (2) Additional Purchaser Nominees when Mr. Lazar beneficially owns at least 40% of the outstanding Common Stock but less than 60% of the outstanding Common Stock; and (iii) three (3) Additional Purchaser Nominees when Mr. Lazar beneficially owns 60% or more of the outstanding Common Stock.

The consummation of the Final Closing by the Company and Mr. Lazar is subject to the satisfaction or waiver of, among other customary closing conditions, the Company’s receipt of the Conversion Approval, the accuracy of the representations and warranties of each of the parties in the Purchase Agreement, the compliance by the parties with the covenants in the Purchase Agreement, and no permanent suspension or other trading suspension for more than three consecutive trading days of the Common Stock by the Securities Exchange Commission (the “SEC”), NYSE American or as reported by Bloomberg L.P.

Pursuant to the Purchase Agreement, Mr. Lazar has the right to assign and transfer the Series D Preferred Stock, the Series E Preferred Stock and the Conversion Shares and/or his right to acquire such securities (collectively, the “Securities Purchase Rights”), or the option to sell the Securities Purchase Rights, subject to Mr. Lazar and the transferee satisfying certain requirements pursuant to the Purchase Agreement.

The Company and Mr. Lazar agree to be bound by certain covenants pursuant to the Purchase Agreement, which include:

●	The Company agrees to maintain a reserve of Common Stock from its duly authorized shares in order to complete the Investment and related transactions pursuant to the Purchase Agreement, except to the extent limited by the Company’s authorized shares of Common Stock.
●	The Company agrees that until the Annual Meeting, without Mr. Lazar’s consent which shall not be unreasonably withheld, conditioned or delayed, the Company will not, except as contemplated by the Purchase Agreement: (i) change the number of directors constituting the Board from eight (8) or fill any vacancy on the Board; (ii) change the nature of the Company’s operations; (iii) incur any debt outside of the ordinary course of business; (iv) guarantee any obligation of any third party; (v) issue any capital stock or Common Stock equivalent, other than pursuant to certain limited exceptions such as those related to the Company’s 2017 Omnibus Plan; or (vi) amend its certificate of incorporation or bylaws.
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The Company agrees to maintain a reserve of Common Stock from its duly authorized shares in order to complete the Investment and related transactions pursuant to the Purchase Agreement, except to the extent limited by the Company’s authorized shares of Common Stock.

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The Company agrees that until the Annual Meeting, without Mr. Lazar’s consent which shall not be unreasonably withheld, conditioned or delayed, the Company will not, except as contemplated by the Purchase Agreement: (i) change the number of directors constituting the Board from eight (8) or fill any vacancy on the Board; (ii) change the nature of the Company’s operations; (iii) incur any debt outside of the ordinary course of business; (iv) guarantee any obligation of any third party; (v) issue any capital stock or Common Stock equivalent, other than pursuant to certain limited exceptions such as those related to the Company’s 2017 Omnibus Plan; or (vi) amend its certificate of incorporation or bylaws.

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●	Mr. Lazar agrees to ensure the Company will have sufficient capital to identify, conduct due diligence and complete a Post-Investment Transaction in a timely manner and fund operations and pursue the growth opportunity and business strategy of a target company for at least twelve (12) months after completing a Post-Investment Transaction (the “Post-Investment Available Capital”). Further, after both the First Closing and the Final Closing, Mr. Lazar has agreed that the Company will maintain a cash balance sufficient to fund the Minimum Company Operating Capital (generally at least three (3) months of the Company’s operations), the Post-Investment Available Capital and the Other Company Liabilities (as defined in the Purchase Agreement) or that he, or other institutional investors known to him, will otherwise provide the necessary additional cash through private placement investments on commercially reasonable terms.
●	Mr. Lazar agrees, upon receipt of written notice from the Company that the<br> Remaining Warrant Holders (as defined below) have exercised their right to redeem the Series F Preferred Stock (as defined below) in<br> exchange for a cash payment equivalent to the Series F Redemption Amount, to cause the Company to pay the full amount of<br> such payment (the “Series F Redemption Amount”), including through the proceeds of the Investment.
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●	Mr. Lazar agrees that he will not offer, sell, dispose of, or otherwise transfer the Series D Preferred Stock, the Series E Preferred Stock or the Conversion Shares to a U.S. person within six (6) months from the date of purchase, subject to certain exceptions (including the Securities Purchase Rights), or engage in any hedging transactions in compliance with Regulation S. Additionally, prior to the First Closing, the Board unanimously adopted resolutions exempting Mr. Lazar’s acquisition of the Series D Preferred Stock, Series E Preferred Stock and the Conversion Shares from Section 16(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), pursuant to Rule 16b-3 of the Exchange Act.
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The Company also granted Mr. Lazar a right to participate in subsequent financing transactions where the Company issues Common Stock or Common Stock equivalents for cash consideration, indebtedness or a combination thereof until the earlier of closing a Post-Investment Transaction or February 19, 2026 (i.e. the six (6) month anniversary of the First Closing), in an amount up to 25% of the subsequent financing transaction or a lesser amount to the extent that Mr. Lazar no longer holds at least 25% of the issued and outstanding shares of Common Stock, including on an as converted basis.

Warrant Holder Agreements

On August 19, 2025, simultaneous with the First Closing, the Company entered into Warrant Exchange Agreements (collectively, the “Series F Agreements”) with each of Anson Investments Master Fund LP, Hudson Bay Capital Management LP and Armistice Capital, LLC, as the three largest remaining holders (collectively, the “Remaining Warrant Holders”) of the Company’s Series F-1 Common Stock warrants (“Series F Warrants”). The Series F Agreements provide for the irrevocable surrender and cancellation by each of the Remaining Warrant Holders of all of their respective Series F Warrants, as well as the additional respective Common Stock purchase warrants that each Remaining Warrant Holder beneficially owns, if any, in exchange for (i) the Company issuing an aggregate of 1,986,565 shares of a new series of Series F voting retractable preferred stock, par value $0.01 (the “Series F Preferred Stock”), to the Remaining Warrant Holders and (ii) a cash payment of $175,000 to each of the Remaining Warrant Holders. The Series F Agreements also include a voting commitment by such Remaining Warrant Holders to vote their shares of Series F Preferred Stock at the Annual Meeting within seven (7) days of the Company filing a definitive proxy statement, as further discussed below. Additionally, the Series F Agreements include a standstill provision pursuant to which the Remaining Warrant Holders will not initiate any claims against the Company, including claims related to the transactions contemplated by the Purchase Agreement and the Special Dividend. The Warrant Exchange Agreements also include a “most favored nations” provision that would increase the amount paid to the Remaining Warrant Holders if, after the effective date of the Warrant Exchange Agreement, another holder of the Company’s Common Stock purchase warrants receives a higher amount per underlying warrant; except that this provision shall not apply to (i) settlements with retail investor warrant holders that (1) individually is less than or equal to six and thirty hundredths percent (6.30%) of a Remaining Warrant Holder’s total warrants outstanding or (2) in the aggregate is less than or equal to twelve and seventy hundredths percent (12.70%) of a Remaining Warrant Holder’s total warrants outstanding shall not trigger any repricing or (ii) prior warrant settlements by the Company.

The Series F Preferred Stock shall have the powers, preferences, rights, qualifications, limitations and restrictions as set forth in the Certificate of Designation of Preferences, Rights and Limitations for the Series F Voting Retractable Preferred Stock (the “Series F Certificate of Designation”). Among these rights (as further described below) includes each share of Series F Preferred Stock having a right to vote equivalent to approximately 0.424 shares of Common Stock, or in the aggregate the right to vote 842,829 shares of Common Stock, which represents 14.47% of the currently outstanding shares of Common Stock. The Series F Agreements provide for the Remaining Warrant Holders to vote their Series F Preferred Stock at the Annual Meeting in favor of the Stockholder Meeting Proposals, including the Conversion Approval. Additionally, as further detailed below, the terms of the Series F Preferred Stock provide each holder with the right to require the Company to retire their shares of Series F Preferred Stock and convertible securities held by such holder beginning after the earlier of (i) the Stockholder Approval (as defined in the Purchase Agreement) and (ii) December 31, 2025 for an amount of $175,000 to each Remaining Warrant Holder, or an aggregate of $525,000 for all shares of Series F Preferred Stock and convertible securities held by such holders.

Description of Voting Agreement

In connection with the First Closing of the Investment, on August 19, 2025, the Company and Mr. Lazar entered into a voting agreement (the “Voting Agreement”) with a stockholder of the Company owning approximately 17.54% of the Company’s outstanding Common Stock as of June 4, 2025, Jad Fakhry, together with his controlled entities Poplar Point Capital Management LLC, a Delaware limited liability company, Poplar Point Capital Partners LP, a Delaware limited partnership, and Poplar Point Capital GP LLC, a Delaware limited liability company (together, the “Poplar Entities”). The Voting Agreement was entered into and became effective upon the execution and effectiveness of the Purchase Agreement and will have a two (2) year term. In connection with the Poplar Entities entering into the Voting Agreement, the Company shall use commercially reasonable efforts for the contemplated Special Dividend to equal or exceed $0.80 per share (prior to any stock split, share consolidation, recapitalization or similar transaction). Pursuant to the terms of the Voting Agreement, the Poplar Entities have agreed to (1) vote all of their shares of Common Stock at the Annual Meeting in favor of the proposals recommended by the Board in order to facilitate the Investment (the “Meeting Proposals”), (2) the appointment of the Company as an irrevocable proxy for the Poplar Entities for the duration of the Voting Agreement, and (3) the ability of the Company to appoint a successor proxy for the Poplar Entities, in the event the Company is unable or unwilling to serve as the proxy, and in return, the Poplar Entities will benefit from the Company completing the Investment. The Voting Agreement provides for, among other things, a standstill provision relating to the Poplar Entities that ensures they will (i) not effect, offer or propose to purchase any additional securities or assets of the Company (including derivative rights), engage in any tender, merger, recapitalization, liquidation, or other business combination transaction, solicit proxies or otherwise act to control or influence the management of the Board, (ii) not take any action (or enter into any discussions) that may force the Company to make a public announcement of the matters set forth in (i) above, (iii) not request that the Company (or directors, management, employees or agents) amend or waive any provision of the standstill and (iv) not dispose of any shares of the Company until (1) the Poplar Entities have voted their shares of Common Stock at the Annual Meeting in favor of the Meeting Proposals and (2) such proposals at the Annual Meeting have passed. Notwithstanding the standstill provision, the Poplar Entities can make proposals to the Company’s Board or special committee of the same, the Chairman, and/or the Chief Executive Officer of the Company on a confidential, non-public basis for each of (a) the pursuit of a proposed transaction between the Company, Mr. Lazar and the Poplar Entities, so long as the Company would not reasonably be expected to publicly disclose such a proposal and (b) a waiver of the standstill provision.

Description of Series D Preferred Stock and Series E Preferred Stock

The powers, preferences, rights, qualifications, limitations and restrictions applicable to the Series D Preferred Stock and the Series E Preferred Stock to be issued in the Investment are set forth in the Company’s Certificate of Designation of Preferences, Rights and Limitations of the Series D Non-Voting Convertible Preferred Stock (the “Series D Certificate of Designation”) and the form of Certificate of Designation of Preferences, Rights and Limitations of the Series E Non-Voting Convertible Preferred Stock (the “Series E Certificate of Designation”). As provided in Item 5.03 below, the Series D Certificate of Designation was filed with the Delaware Secretary of State on August 19, 2025 and is attached as Exhibit 3.1 to this Current Report on Form 8-K. The Series E Certificate of Designation will be filed with the Delaware Secretary of State prior to the Final Closing occurring, with the form of such Series E Certificate of Designation attached as Exhibit 3.2 to this Current Report on Form 8-K. As summarized below, the powers, preferences, rights, qualifications, limitations and restrictions applicable to the Series D Preferred Stock and the Series E Preferred Stock are substantially similar.

Voting Rights

The holders of the shares of the Series D Preferred Stock and Series E Preferred Stock generally will have no voting rights, except as required by law, with the exception that the consent of the majority of holders of the outstanding Series D Preferred Stock or Series E Preferred Stock, as applicable, would be required to: (i) alter or change adversely the powers, preferences or rights given to the Series D Preferred Stock or Series E Preferred Stock or alter or amend the Series D Certificate of Designation or Series E Certificate of Designation, as applicable; (ii) amend the Company’s certificate of incorporation or other charter documents in any manner that adversely affects any rights of the holders of the Series D Preferred Stock or Series E Preferred Stock, as applicable; (iii) increase the number of authorized shares of Series D Preferred Stock or Series E Preferred Stock, as applicable; and (iv) enter into any agreement with respect to any of the foregoing.

Dividends

The holders of the Series D Preferred Stock and the Series E Preferred Stock will be entitled to receive, and the Company will be required to pay, dividends on shares of the Series D Preferred Stock and the Series E Preferred Stock equal (on an as if converted to Common Stock basis) to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock; provided, however, that no dividends will be paid to the holders of the Series D Preferred Stock or the Series E Preferred Stock prior to the declaration and payment of the Special Divided and the Company receiving the Conversion Approval.

Conversion and Limitations

Pursuant to the Series D Certificate of Designation and the Series E Certificate of Designation, the Series D Preferred Stock and the Series E Preferred Stock are each generally subject to the Share Issuance Limitation.

After issuance by the Company, (i) each share of Series D Preferred Stock will be convertible into 160 shares of Common Stock per share of Series D Preferred Stock, or an aggregate of 77.0 million shares of Common Stock, and (ii) each share of Series E Preferred Stock will be convertible into 160 shares of Common Stock, or an aggregate of 43.0 million shares of Common Stock (as may be adjusted from time to time as a result of certain corporate actions such as a reverse stock split), in each case, subject to the Share Issuance Limitation and receipt of the Conversion Approval. Thereafter, on the third business day after the Company receives the Conversion Approval, each outstanding share of the Series D Preferred Stock will automatically convert into 160 shares of Common Stock (or an aggregate of up to 77.0 million shares of Common Stock), which conversion, as a result of having received the Conversion Approval, shall not be subject to the Share Issuance Limitation. Effective on the 30^th^ business day after Conversion Approval is received and the issuance of the Series E Preferred Stock, each outstanding share of the Series E Preferred Stock will automatically convert into 160 shares of Common Stock (or an aggregate of up to 43.0 million shares of Common Stock), which conversion, as a result of having received the Conversion Approval, shall also not be subject to the Share Issuance Limitation.

Dilution Protection

In the event the Company, at any time that any shares of Series D Preferred Stock or Series E Preferred Stock are outstanding: (i) pays a dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, a dividend or other distribution shall not include any shares of Common Stock issued by the Company upon conversion of the Series D Preferred Stock and Series E Preferred Stock); (ii) subdivides outstanding shares of Common Stock into a larger number of shares; (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares; or (iv) issues by reclassification of shares of Common Stock any shares of capital stock of the Company, then in each case the number of shares of Common Stock underlying each share of Series D Preferred Stock and Series E Preferred Stock shall be adjusted as provided in the respective Series D Certificate of Designation or Series E Certificate of Designation. Any adjustment made pursuant to the respective Series D Certificate of Designation or Series E Certificate of Designation shall become effective immediately after the effective date of the applicable event described in subsections (i) through (iv) above.

In addition, if the Company issues shares of Common Stock (or other shares of capital stock or other securities convertible into Common Stock) at any time while the Series D Preferred Stock and Series E Preferred Stock are outstanding and the consideration per share payable to the Company reflects a pre-money imputed equity value of the Company less than $10.0 million, then the stated value of the Series D Preferred Stock or the Series E Preferred Stock will be reduced to such lower price, which is referred to as a “full-ratchet” anti-dilution protection. This full-ratchet anti-dilution protection is subject to: (i) the reduced stated value only being reduced to the extent such reduction will not require further stockholder approval and (ii) it not being applicable to any Post-Investment Transaction.

Such dilution protections are not applicable to the Investment and other transactions pursuant to the Purchase Agreement or to any Post-Investment Transaction.

Rank

Based upon the rights and preferences as provided in the Series D Certificate of Designation and the Series E Certificate of Designation, each of the Series D Preferred Stock and the Series E Preferred Stock, respectively, will rank as to dividends or distributions of assets upon the Company’s liquidation, dissolution or winding up, whether voluntarily or involuntarily, as follows:

●	on par with the Series D Preferred Stock and the Series E Preferred Stock, as applicable, and any class or series of capital stock hereafter created specifically ranking by its terms to be on parity with the Series D Preferred Stock and the Series E Preferred Stock, as applicable;
●	senior to the Common Stock and any class or series of the Company’s capital stock that is currently or hereafter created specifically ranking by its terms junior to the Series D Preferred Stock and the Series E Preferred Stock; and
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●	junior to any class or series of the Company’s capital stock hereafter created specifically ranking by its terms senior to the Series D Preferred Stock and the Series E Preferred Stock.
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Liquidation Preference

In the event of the Company’s liquidation, dissolution or winding up, the holders of Series D Preferred Stock and Series E Preferred Stock will be entitled to receive an amount equal to $8.00 per share, the stated value of the Series D Preferred Stock and the Series E Preferred Stock (as may be increased from time to time pursuant to the terms of the Series D Certificate of Designation or Series E Certificate of Designation, as applicable) plus any declared but unpaid dividends that such holders are entitled to at such time. Next, the remaining assets of the Company will be distributed to the holders of Common Stock and any other junior securities until such holders receive a return of their capital originally contributed. Following this distribution, any remaining assets will be distributed to all holders of Common Stock, junior securities, Series D Preferred Stock, Series E Preferred Stock and any other parity securities pro rata based on the number of shares held on an as-converted basis. Pursuant to the terms of the Series D Certificate of Designation and the Series E Certificate of Designation, a liquidation event includes an acquisition or merger of the Company (not including transactions where stockholders maintain 50% or more voting power) or a sale of substantially all of the assets of the Company. The Series D Certificate of Designation and Series E Certificate of Designation each expressly provide that a liquidation event will not be triggered by a Post-Investment Transaction, or any other transaction contemplated by the Purchase Agreement.

Description of Series F Preferred Stock

The powers, preferences, rights, qualifications, limitations and restrictions applicable to the Series F Preferred Stock to be issued pursuant to the Series F Agreements are set forth in the Series F Certificate of Designation. As provided in Item 5.03 below, the Series F Certificate of Designation was filed with the Delaware Secretary of State on August 19, 2025.

Voting Rights

The holders of shares of the Series F Preferred Stock will have voting rights on all matters voted upon by the holders of Common Stock with each share of Series F Preferred Stock representing the voting equivalent of approximately 0.424 shares of Common Stock (the “Per Share Voting Equivalent”).

Dividends

The holders of the Series F Preferred Stock will not be entitled to receive any dividends on the shares of Series F Preferred Stock or based on the Per Share Voting Equivalent.

Conversion and Retirement

No shares of Series F Preferred Stock will be convertible into shares of Common Stock or any other equity security of the Company.

Beginning on the earlier of (i) Stockholder Approval (as defined in the Purchase Agreement) or (ii) December 31, 2025, each holder of the Series F Preferred Stock may request that the Company retire (i.e., redeem) all of their shares of Series F Preferred Stock and convertible securities for $175,000 or an aggregate of $525,000 for all shares of Series F Preferred Stock and convertible securities (the “Retirement Value”). To the extent any holder of Series F Preferred Stock does not request their Series F Preferred Stock be retired before December 31, 2025, the following business day, the Company may send notice and cause such Series F Preferred Stock and any convertible securities held by such holder to be retired by paying the Retirement Value. Any amount due to a holder of the Series F Preferred Stock pursuant to the Series F Certificate of Designation, including the amount to retire shares of Series F Preferred Stock, which is not paid by the Company when due shall result in a late charge at the rate of 15% per annum from the date such amount was due until the same is paid in full.

Dilution Protection

In the event the Company, at any time while any shares of the Series F Preferred Stock are outstanding: (i) pays a stock dividend or otherwise make a distribution or distributions on shares of its Common Stock; (ii) subdivides outstanding shares of Common Stock into a larger number of shares; (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares; or (iv) issues by reclassification of shares of Common Stock any shares of capital stock of the Company, then the Per Share Voting Equivalent shall be adjusted as provided in the Series F Certificate of Designation. Any adjustment made pursuant to the Certificate of Designation shall become effective immediately after the effective date of the applicable event described in subsections (i) through (iv) above. The Series F Preferred Stock does not otherwise provide for any anti-dilution protection.

Rank

Based upon the rights and preferences as provided in the Series F Certificate of Designation, the Series F Preferred Stock will rank as to dividends or distributions of assets upon the Company’s liquidation, dissolution or winding up, whether voluntarily or involuntarily, as follows:

●	on par with the Common Stock;
●	senior to any class or series of the Company’s capital stock hereafter created specifically ranking by its terms junior to the Series F Preferred Stock; and
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●	junior to the Series D Preferred Stock, Series E Preferred Stock and any class or series of the Company’s capital stock hereafter created specifically ranking by its terms senior to the Series F Preferred Stock.
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Liquidation Preference

In the event of the Company’s liquidation, dissolution or winding up, the holders of Series F Preferred Stock will be entitled to receive the same amount that a holder of Common Stock would receive if the Series F Preferred Stock were converted at a rate equal to the Per Share Voting Equivalent; provided, that the aggregate amount paid to the Series F Preferred Stock holders is limited to the Retirement Value.

* * *

The representations, warranties and covenants contained in the Purchase Agreement and Series F Agreements were made only for purposes of such agreements as of a specific date and were solely for the benefit of the parties to such agreements. The representations and warranties may have been made for the purposes of allocating contractual risk between the parties to the agreements instead of establishing these matters as facts and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Accordingly, the Purchase Agreement and Series F Agreements are incorporated herein by reference only to provide investors with information regarding the terms of such agreements, and not to provide investors with any other factual information regarding the Company or its business, and should be read in conjunction with the disclosures in the Company’s periodic reports and other filings with the SEC.

The foregoing summaries of the material terms of the Purchase Agreement, the Series F Agreements (with each of the three Remaining Warrant Holders), the Voting Agreement, the Series D Certificate of Designation, the Series E Certificate of Designation and the Series F Certificate of Designation do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, which are filed as Exhibits 10.1, 10.2 through 10.4, 10.5, 3.1, 3.2 and 3.3, respectively, to this Current Report on Form 8-K and incorporated herein by reference.

Item 3.02	Unregistered Sales of Equity Securities.

The information disclosed in Item 1.01 of this Current Report on Form 8-K regarding the issuance of the Series D Preferred Stock, the Series E Preferred Stock and the Series F Preferred Stock, and the Investment and transactions pursuant to the Series F Agreements, is incorporated herein by reference. The Series D Preferred Stock and Series E Preferred Stock were sold without registration under the Securities Act of 1933, as amended (the “Securities Act”), in reliance on the exemptions provided by Section 4(a)(2) of the Securities Act as a transaction not involving a public offering and Regulation S promulgated under the Securities Act as sales to accredited investors and in reliance on similar exemptions under applicable state laws. The Series F Preferred Stock was issued without registration under the Securities Act, in reliance on an exemption from registration as provided by Section 3(a)(9) of the Securities Act, and in reliance on similar exemptions under applicable state laws. No form of general solicitation or general advertising was conducted by the Company in connection with the issuance. The Series D Preferred Stock and the Series E Preferred Stock, when and if issued at the Final Closing, shall contain (or will contain, where applicable) restrictive legends preventing the sale, transfer, or other disposition of such securities, unless registered under the Securities Act, or pursuant to an exemption therefrom. The disclosure contained in this Current Report on Form 8-K does not constitute an offer to sell or a solicitation of an offer to buy any securities of the Company, and is made only as required under applicable rules for filing current reports with the SEC.

Item 3.03	Material Modification to Rights of Security Holders.

The information disclosed in Item 1.01 of this Current Report on Form 8-K regarding the Purchase Agreement, the Series F Agreements and the issuance of the Series D Preferred Stock, Series F Preferred Stock and the Conversion Shares, is incorporated herein by reference.

Item 5.02	Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(b)	Resignation of Justin Hall as Chief Executive Officer Effective Immediately; Resignation of the Board Directors to be Effective at the Annual Meeting
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On August 19, 2025 and effective at the First Closing, Justin Hall voluntarily resigned as the Chief Executive Officer of the Company, though he will remain a named executive officer of the Company and serve as the Vice President of Business Development, General Counsel and Corporate Secretary of the Company (as further described in subpart (e) below) as well as a director serving on the Board.

Separately, pursuant to the Release Agreements (as defined and further described in subpart (e) below), Mr. Hall and each of the Resigning Non-Employee Directors, other than the Continuing Director, generally agreed to later resign from the Board to be effective at the Annual Meeting, except in the limited circumstances as described below.

(c)	Appointment of David Lazar as Chief Executive Officer, Tommy Law as Chief Financial Officer and Justin Hall as Vice President of Business Development, Effective Immediately

In connection with the Investment, on August 19, 2025 and simultaneous with the First Closing, (i) Mr. Lazar was appointed to serve as the Company’s Chief Executive Officer, (ii) Mr. Hall was appointed to serve as the Company’s Vice President of Business Development, General Counsel and Corporate Secretary and (iii) Mr. Law, currently the Company’s Interim Chief Financial Officer and Treasurer, was appointed to serve as the Company’s Chief Financial Officer and Treasurer.

There are no arrangements or understandings, other than the Purchase Agreement described in Item 1.01 above and the employment and severance arrangements described in subpart (e) below (as incorporated by reference herein), as applicable, between each of Mr. Lazar, Mr. Hall and Mr. Law and any other persons pursuant to which they were selected for such roles. There are also no family relationships among any of Mr. Lazar, Mr. Hall and Mr. Law and any director or executive officer of the Company. Other than Mr. Lazar’s interest in the Investment described in Item 1.01 above and the employment and severance arrangements described in subpart (e) below (as incorporated by reference herein), Mr. Lazar, Mr. Hall and Mr. Law have no direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.

Mr. Lazar, age 35, previously served as director on the board of directors of FiEE, Inc. (formerly Minim, Inc.) (NASDAQ: FIEE) where he also previously served as the Chief Executive Officer and Chief Financial Officer from December 2023 to February 2025. Mr. Lazar served as interim Chief Executive Officer and principal financial officer of Cyclacel Pharmaceuticals, Inc. (NASDAQ: CYCC), from January 2, 2025 through February 26, 2025. Mr. Lazar served as the Chief Executive Officer of Titan Pharmaceuticals Inc. listed on Nasdaq (NASDAQ: TTNP) from August 2022 to April 2024, where he also served as a director and board chairman from August 2022 until October 2023. Mr. Lazar also served as the chief executive officer and chairman of the board of directors of OpGen, Inc. (OTC: OPGN) from March 2024 to August 2024. Mr. Lazar also served as the president and a member of the board of directors of LQR House Inc. (NASDAQ: YHC) from October 2024 to April 2025.

Mr. Hall, age 47, served as the Company’s Chief Executive Officer since June 2019 until his resignation effective at the First Closing. Mr. Hall served as the Company’s Interim President and Chief Executive Officer from March 2019 to June 2019 and as the Company’s Senior Vice President and General Counsel beginning in December 2015. Prior to this, he served as the Company’s lead in-house counsel beginning in February 2013. Prior to joining the Company, Mr. Hall worked as Corporate Counsel at Accuray Incorporated, a radiation oncology company, which he joined in October 2006, where he provided substantive legal advice on a broad range of complex legal matters with a focus on employment, corporate compliance, and corporate governance. Mr. Hall’s prior experience also includes serving as an investment advisor at Sagemark Consulting from 2000 to 2006, and a stockbroker at First Security Van Kasper from 1998 to 2001. Mr. Hall received a B.A. in Business Administration and Management from the University of California, San Diego, and a J.D. from the University of San Diego, School of Law.

Mr. Law, age 39, prior to his appointment as Chief Financial Officer and Treasurer of the Company, served as the Company’s Interim Chief Financial Officer and Treasurer since February 2023. Prior to that, he served the Company since December 2019 in a variety of positions, most recently as the Corporate Controller since September 2022. As the Corporate Controller, Mr. Law was responsible for quarterly filings with the SEC, as well as managing the periodic financial close process. Prior to serving as the Corporate Controller, Mr. Law served the Company as an Assistant Controller (April 2022 to September 2022), Accounting Manager (June 2020 to April 2022) and Senior Accountant (December 2019 to June 2020). Prior to joining the Company, Mr. Law was a Senior Accountant at KP LLC, a marketing solutions company, from January 2017 to December 2019. Previously, he served as Accounting Manager at Hitachi Solutions America, Ltd., an information technology company, from 2012 to 2015. Mr. Law received a B.S. in Business Administration, Accounting from the San Jose State University.

(d)	Appointment of David Lazar to the Board of Directors

On August 19, 2025, the Board increased the size of the Board to eight (8) directors and appointed Mr. Lazar to fill the new vacancy on the Board resulting from the increased Board size. On August 19, 2025, immediately prior to the First Closing, Mr. Lazar was appointed to serve as a Class III director until the Annual Meeting, subject to his prior death, resignation or removal from office as provided by law. Mr. Lazar’s business experience and background is provided in subpart (c) above which is incorporated by reference herein.

Mr. Lazar was appointed to the Board in connection with the Investment and is a party to the Purchase Agreement related to the Investment. Mr. Lazar also has certain one-time contractual rights that provide for (i) his nomination (or for another individuals nomination as the Initial Nominee) to be elected at the Annual Meeting, (ii) his later appointment of Additional Purchaser Nominees and (iii) him to serve as the Chair of the Board, subject to certain conditions, as described in Item 1.01 above, which is incorporated by reference herein. There is no other arrangement or understanding between Mr. Lazar and any other person pursuant to which he was appointed as a director of the Company. As a result of Mr. Lazar also serving as Chief Executive Officer of the Company, the Board does not deem Mr. Lazar to be independent. As a result, Mr. Lazar will not participate in the Company’s Non-Employee Director Compensation Program or serve on any of the Board’s committees, including the newly established Special Transaction Committee of the Board.

(e)	Employment Agreements, Severance Payment, Signing Bonus and Settlement and Release Agreements

Mr. Lazar is not currently party to an employment agreement with the Company and will not receive any compensation for assuming and serving in the role of Chief Executive Officer.

Amended and Restated Employment Agreement with Justin Hall

On August 19, 2025, the Company entered into an amended and restated employment agreement with Mr. Hall for his service as the Company’s Vice President of Business Development, General Counsel and Corporate Secretary (the “Hall Employment Agreement”), which entirely amends and restates the Employment Agreement, dated January 31, 2020, as amended, between the Company and Mr. Hall (the “Prior Hall Employment Agreement”).

The Hall Employment Agreement provides for employment with a term commencing on the date of the First Closing and ending on October 31, 2025 (the “Hall Employment Term”). The Hall Employment Agreement provides for an annual base salary of one hundred seventy-five thousand dollars ($175,000) (the “Hall Base Salary”).

The Hall Employment Agreement is guaranteed through the Hall Employment Term. If the Company terminates Mr. Hall prior to the end of the Hall Employment Term, the Company is required to pay the Hall Base Salary from the date of termination through the end of the Hall Employment Term (the “Hall Severance Amount”). The Hall Severance Amount will be paid in a lump sum within sixty (60) days following the executive’s separation from service.

Employment Agreement with Tommy Law & Signing Bonus

On August 19, 2025, the Company entered into an employment agreement with Mr. Law for his service as the Company’s Chief Financial Officer (the “Law Employment Agreement”). Mr. Law did not previously have an employment agreement in place. As a result of Mr. Law’s appointment as the Chief Financial Officer and Treasurer of the Company, Mr. Law also received a one-time signing bonus of $89,250, to be paid in cash, separate from the terms of the Law Employment Agreement.

The Law Employment Agreement provides for at-will employment with a term commencing on the date of the First Closing and continuing until the first anniversary of the date of commencement. The Law Employment Agreement provides for an annual base salary of one hundred seventy thousand dollars ($170,000) (the “Law Base Salary”). In addition, Mr. Law shall be eligible for any bonus plan that is deemed appropriate by the Board. The bonus amount shall be determined by the Board, in its sole discretion, based upon, among others, the following factors: (i) the fulfillment, during the relevant year, of specific milestones and tasks delegated, for such year, to the executive as set by the Company’s Chief Executive Officer and/or the Board, before the end of the first calendar quarter; (ii) the evaluation of the executive by the Company’s Chief Executive Officer and/or the Board; (iii) the Company’s financial, product and expected progress; and (iv) other pertinent matters relating to the Company’s business and valuation. Any bonus will be payable within two and a half (2 ½) months following the end of the year for which the bonus was earned. The Compensation Committee of the Board of Directors shall have the sole discretion to pay any or all of the annual bonus in the form of equity compensation. Any such equity compensation shall be issued from the Company’s 2017 Omnibus Incentive Plan and shall be fully vested upon payment.

Further, Mr. Law is entitled to a retention bonus of $170,000 to the extent he remains employed through the Company’s filing of its quarterly report on Form 10-Q with the SEC for the quarter ended September 30, 2025 (the “Retention Date”) and he has not otherwise resigned or been terminated for cause (as defined in the Law Employment Agreement) prior to the Retention Date.

In the event the Company terminates Mr. Law without cause (including death, disability or for constructive termination), or his employment term otherwise expires at the end of the term, he shall be entitled to an amount equal to Law’s Base Salary in effect on the date of separation from service (the “Law Severance Amount”). The Law Severance Amount will be paid in a lump sum within sixty (60) days following the executive’s separation from service. The Law Severance Amount shall be in addition to Mr. Law’s earned wages and other compensation (including reimbursements of his outstanding expenses and unused vacation) through the date his employment is terminated from the Company as provided in the preceding sentence. In the event the Company terminates Mr. Law for cause, he shall be entitled to any earned but unpaid wages or other compensation (including reimbursements of his outstanding expenses and unused vacation) earned through the termination date.

Moreover, all outstanding equity awards held by Mr. Law will be subject to full accelerated vesting on the date of termination without cause or at the expiration of the employment term, and the exercise period shall be extended to three (3) years from the date of termination. In order to terminate Mr. Law for cause (or for Mr. Law to resign for constructive termination), the acting party shall give notice to the other party specifying the reason for termination and providing a period of thirty (30) days to cure the reason specified. If there is no cure within thirty (30) days or the notified party earlier refuses to effect the cure, the termination shall then be deemed effective.

Settlement and Release Agreement with Mr. Hall and the Resigning Non-Employee Directors

On August 19, 2025, the Company entered into a Settlement Agreement and General and Mutual Release (collectively, the “Release Agreements”) with Mr. Hall and with five (5) of the six (6) non-employee directors serving on the Board (Paul E. Freiman, Julie Garlikov, Swan Sit, Mijia (Bob) Wu and Yongxiang (Sean) Zheng) (collectively, the “Resigning Non-Employee Directors”). The remaining non-employee director, Mr. Yenyou (Jeff) Zheng, will continue to serve on the Board of Directors as the Continuing Director and, therefore, he will not enter into a Release Agreement. The Release Agreements provide for (i) Mr. Hall and the Resigning Non-Employee Directors to generally release the Company from any claims, actions, or losses that such person may have against the Company and (ii) the Company to similarly release Mr. Hall and each of the Resigning Non-Employee Directors from any claims, action or losses that the Company may have against such person, provided that the Company shall remain obligated pursuant to the indemnification agreements with each person and to maintain D&O insurance coverage, or a D&O tail policy.

Pursuant to the Release Agreement with Mr. Hall, he agreed to resign from the Board effective on the date and at the time that each of the following have occurred: (i) the Conversion Approval; (ii) the Final Closing; and (iii) the Additional Purchaser Nominee(s) are qualified and appointed to serve on the Board. Mr. Hall further agreed to resign, and did resign, as the Company’s Chief Executive Officer as of the First Closing (as described above). Under the terms of the Release Agreements with the Resigning Non-Employee Directors, these directors agreed to resign from the Board effective on the date and at the time that each of the following have occurred: (i) the Conversion Approval; (ii) the Final Closing; and (iii) the Additional Purchaser Nominee(s) are qualified and appointed to serve on the Board (the “Resignation Effective Date”); provided, however, such resignation is conditioned upon (A) the Special Dividend having already been declared and paid and (B) Conversion Approval and the Equity Consideration Approval having been received, the Final Closing having occurred and an Additional Purchaser Nominee having been qualified and being appointed to serve on the Board.

Pursuant to, and as consideration for, the Release Agreements with the Resigning Non-Employee Directors, each Resigning Non-Employee Director shall receive (1) a settlement payment of newly-issued shares of restricted Common Stock, with an aggregate value of $40,000 (determined based on the closing price of Common Stock on the trading day that immediately precedes the date of the Resignation Effective Date) to be issued on the date of the Resignation Effective Date (the “Equity Consideration”), plus (2) any accrued and unpaid director’s fees. To the extent that the Equity Consideration Approval is not obtained and the Equity Consideration is not issued to the Resigning Non-Employee Director, then the Release Agreements with the Resigning Non-Employee Directors will terminate and be of no further force and effect. The Release Agreement with Mr. Hall provides for Mr. Hall to receive a cash settlement payment of $481,250 plus any unpaid wages and $8,778 in payments pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). Further, Mr. Hall will receive a second cash settlement payment of $481,250 plus any unpaid wages and $8,778 in COBRA payments by October 31, 2025. Mr. Hall’s payment amounts comprise his earned severance under the Prior Hall Employment Agreement.

* * *

The foregoing descriptions of the Hall Employment Agreement, the Law Employment Agreement, the Release Agreement with Mr. Hall and the Release Agreements with each of the Resigning Non-Employee Directors do not purport to be complete and are qualified in their entirety by reference to the full text of such agreements, which are attached hereto as Exhibits 10.6, 10.7, 10.8 and 10.9, respectively, and incorporated by reference herein. Further, the incorporated description of the Investment and the Purchase Agreement in this Item 5.02 does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement, which is attached hereto as Exhibit 10.1 and incorporated by reference herein.

Item 5.03	Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Before the First Closing described in Item 1.01 above, on August 19, 2025, the Company filed the Series D Certificate of Designation and the Series F Certificate of Designation with the Secretary of State of Delaware setting forth the powers, preferences, rights, qualifications, limitations and restrictions applicable to the Series D Preferred Stock and the Series F Preferred Stock, respectively, both as summarized in Item 1.01 above with such summaries incorporated herein by reference. A copy of the Series D Certificate of Designation and the Series F Certificate of Designation are attached hereto as Exhibits 3.1 and 3.3, respectively, and are incorporated herein by reference.

Item 8.01	Other Events.

On August 19, 2025, the Company issued a press release announcing the Investment and related matters, a copy of which is attached as Exhibit 99.1 to this Current Report on Form 8-K.

Cautionary Language Concerning Forward-Looking Statements

This Current Report on Form 8-K, including exhibits, contains forward-looking statements within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. These forward-looking statements are based upon the Company and its management’s current expectations, assumptions, estimates, projections and beliefs. Such statements include, but are not limited to, statements regarding the Investment, the expected completion of the Final Closing, the Company’s financial condition including the financial impact of the Investment, the Special Dividend, the Company’s evaluation of other strategic transactions, including a Post-Investment Transaction, and related matters. These statements involve known and unknown risks, uncertainties and other factors that may cause actual results or achievements to be materially different and adverse from those expressed in, or implied by, these forward-looking statements. Other risks relating to the Company’s business, including risks that could cause results to differ materially from those projected in the forward-looking statements in this Current Report, are detailed in the Company’s latest Form 10-K, subsequent Forms 10-Q and/or Form 8-K filings with the SEC, especially under the heading “Risk Factors.” The forward-looking statements in this release speak only as of this date, and the Company disclaims any intent or obligation to revise or update publicly any forward-looking statement except as required by law.

Item 9.01	Financial Statements and Exhibits.

(d) Exhibits

Exhibit No.	Description
3.1	Certificate of Designation of Preferences, Rights and Limitations of Series D Non-Voting Convertible Preferred Stock
3.2*	Form of Certificate of Designation of Preferences, Rights and Limitations of Series E Non-Voting Convertible Preferred Stock
3.3	Certificate of Designation of Preferences, Rights and Limitations of Series F Voting Retractable Preferred Stock
10.1++	Securities Purchase Agreement, dated August 19, 2025, between the Company and David Lazar
10.2	Warrant Exchange Agreement, dated August 19, 2025, between the Company and Anson Investments Master Fund LP
10.3	Warrant Exchange Agreement, dated August 19, 2025, between the Company and Hudson Bay Capital Management LP
10.4	Warrant Exchange Agreement, dated August 19, 2025, between the Company and Armistice Capital, LLC
10.5++	Voting Agreement, dated August 19, 2025, between the Company and the Poplar Entities
10.6++***	Amended and Restated Employment Agreement, dated August 19, 2025, between the Company and Mr. Hall
10.7++***	Employment Agreement, dated August 19, 2025, between the Company and Mr. Law
10.8***	Settlement Agreement and General and Mutual Release, dated August 19, 2025, between the Company and Mr. Hall
10.9***	Form of Settlement Agreement and General and Mutual Release with the Resigning Non-Employee Directors
99.1	Press Release, dated August 19, 2025
104	Cover Page Interactive Data File (embedded within the Inline XBRL document)
*	This document is not currently effective and will be entered into and become effective only in connection with the Final Closing being completed.
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++	Certain schedules and exhibits were omitted as well as certain confidential portions of the agreements by means of marking such portions with brackets (due to such confidential portions not being material and being the type of information that the Company treats as private or confidential) pursuant to Item 601 of Regulation S-K promulgated by the SEC. The Company agrees to supplementally furnish a copy of any omitted schedule, exhibit or confidential portions to the SEC upon request.
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***	Indicates a management contract or compensatory plan or arrangement.
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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

NovaBay Pharmaceuticals, Inc.
By:	/s/ David E. Lazar
	David E. Lazar
	Chief Executive Officer

Dated: August 19, 2025

Exhibit 3.1

NOVABAY PHARMACEUTICALS, INC.

CERTIFICATE OF DESIGNATION OF PREFERENCES,

RIGHTS AND LIMITATIONS

SERIES D NON-VOTING CONVERTIBLE PREFERRED STOCK

PURSUANT TO SECTION 151 OF THE

DELAWARE GENERAL CORPORATION LAW

The undersigned, Justin Hall, does hereby certify that:

He is the Chief Executive Officer, President and Secretary of NovaBay Pharmaceuticals, Inc., a Delaware corporation (the “Corporation”).
The Corporation is authorized to issue 5,000,000 shares of preferred stock, 15,000 of which have been issued.
This Certificate of Designation of Preferences, Rights and Limitations of Series D Non-Voting Convertible Preferred Stock (the “Certificate of Designation”) that includes the following resolutions have been approved and adopted by the board of directors of the Corporation (the “Board of Directors”):

WHEREAS, the Amended and Restated Certificate of Incorporation, as amended of the Corporation provides for a class of its authorized stock known as preferred stock, consisting of 5,000,000 shares, $0.01 par value per share, issuable from time to time in one or more series;

WHEREAS, the Board of Directors is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of redemption and liquidation preferences of any wholly unissued series of preferred stock and the number of shares constituting any series and the designation thereof, of any of them; and

WHEREAS, it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating to a new series of Corporation preferred stock titled “Series D Non-Voting Convertible Preferred Stock”, which shall consist of up to 481,250 shares of the preferred stock, which the Corporation has the authority to issue, as follows:

NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for the issuance of a new series of preferred stock for cash or exchange of other securities, rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters relating to such series of preferred stock as follows:

TERMS OF PREFERRED STOCK

Section 1. Definitions. For the purposes hereof, the following terms shall have the following meanings:

“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 of the Securities Act.

“Alternate Consideration” shall have the meaning set forth in Section 7(d).

“Attribution Parties” shall have the meaning set forth in Section 6(d).

“Automatic Conversion Date” shall have the meaning set forth in Section 6(b).

“Automatic Conversion” shall have the meaning set forth in Section 6(b).

“Buy-In” shall have the meaning set forth in Section 6(c)(iv).

“Commission” means the United States Securities and Exchange Commission.

“Common Stock” means the Corporation’s common stock, par value $0.01 per share, and stock of any other class of securities into which such securities may hereafter be reclassified or changed.

“Common Stock Equivalents” means any securities of the Corporation which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.

“Conversion Amount” means the sum of the Stated Value at issue.

“Conversion Date” shall have the meaning set forth in Section 6(a).

“Conversion Ratio” shall have the meaning set forth in Section 6(a).

“Conversion Shares” means, collectively, the shares of Common Stock issuable upon conversion of the shares of Preferred Stock in accordance with the terms hereof.

“Dilutive Issuance” shall have the meaning set forth in Section 7(e)(i).

“Distribution” shall have the meaning set forth in Section 7(c).

“DTC” shall have the meaning set forth in Section 6(c)(i).

“Exempt Issuance” shall have the meaning set forth in Section 7(e)(iii).

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“First Closing” shall have the meaning set forth in the Purchase Agreement.

“Fundamental Transaction” shall have the meaning set forth in Section 7(d).

“Holder” shall have the meaning set forth in Section 2.

“Junior Securities” means the Common Stock or other class or series of Corporation stock that ranks junior to the Preferred Stock.

“Liquidation” shall have the meaning set forth in Section 5(a).

“New York Courts” shall have the meaning set forth in Section 8(d).

“Notice of Conversion” shall have the meaning set forth in Section 6(a).

“Original Issue Date” means the date of the first issuance of any shares of the Preferred Stock regardless of the number of transfers of any particular shares of Preferred Stock and regardless of the number of certificates which may be issued to evidence such Preferred Stock.

“Parity Securities” means the Series E Preferred Stock and any other class or series of Corporation preferred stock issued on or after the date hereof that ranks by its terms to be on parity with the Preferred Stock.

“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“Post-Investment Transaction” means the strategic transaction that would involve an investment and/or acquisition of an operating going concern and solvent company in a timely manner as contemplated in and following the signing of the Purchase Agreement.

“Preferred Stock” shall have the meaning set forth in Section 2.

“Purchase Agreement” means the Securities Purchase Agreement, dated as of August 19, 2025, among the Corporation and the original Holders, as amended, modified or supplemented from time to time in accordance with its terms.

“Purchase Rights” shall have the meaning set forth in Section 7(b).

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Share Delivery Date” shall have the meaning set forth in Section 6(c).

“Share Issuance Limitation” shall have the meaning set forth in Section 6(d).

“Special Dividend” shall have the meaning set forth in the Purchase Agreement.

“Standard Settlement Period” shall have the meaning set forth in Section 6(c)(i).

“Stated Value” shall have the meaning set forth in Section 2, as the same may be increased pursuant to Section 7(e).

“Stockholder Approval” means all such approvals as may be required by the applicable rules and regulations of the NYSE American (or any successor entity) or under applicable law from the stockholders of the Corporation with respect to the conversion of all the Preferred Stock and issuance of the Conversion Shares to the Holder, including the Automatic Conversion of the Preferred Stock into Common Stock upon receipt of such approval.

“Stockholders Meeting” means the meeting of the stockholders of the Corporation in which Stockholder Approval is voted on as set forth in a proxy statement approved by the original Holder.

“Successor Entity” shall have the meaning set forth in Section 7(d).

“Trading Day” means a day on which the principal Trading Market is open for business.

“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the New York Stock Exchange, the Nasdaq Capital Market, the Nasdaq Global Market or the Nasdaq Global Select Market, (or any successors to any of the foregoing).

“Transfer Agent” means Equiniti Trust Company, LLC, the current transfer agent of the Corporation with a mailing address of 6201 15^th^ Avenue, Brooklyn NY 11219 and any successor transfer agent of the Corporation.

Section 2. Designation, Amount and Par Value. The series of preferred stock shall be designated as the Series D Non-Voting Convertible Preferred Stock (the “Preferred Stock”) and the number of shares so designated shall be 481,250 (which shall not be subject to change without the written consent of the holders of a majority of the voting power of all then outstanding shares of such Preferred Stock (each, a “Holder” and collectively, the “Holders”)). Each share of Preferred Stock shall have a par value of $0.01 per share and a stated value equal to $8.00 (the “Stated Value”), subject to increase pursuant to Section 7(e).

Section 3. Dividends. Except for stock dividends or distributions for which adjustments are to be made pursuant to Section 7, Holders shall be entitled to receive, and the Corporation shall pay, dividends on shares of Preferred Stock equal (on an as-if-converted-to-Common-Stock basis, without regard to conversion limitations herein) to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock; provided however, that this right to receive dividends on the Preferred Stock by the Holder(s) shall not exist and the Holder(s) shall not be entitled to receive dividends on shares of Preferred Stock and no dividends shall be paid on shares of Preferred Stock, with respect to any dividends paid by the Corporation prior to the declaration and payment of the Special Dividend and the Stockholder Approval. No other dividends shall be paid on shares of Preferred Stock. The Corporation shall not pay any dividends on the Common Stock, other than the Special Dividend, unless the Corporation simultaneously complies with this provision.

Section 4. No Voting Rights. Except as required by law, the Preferred Stock shall have no voting rights. However, as long as any shares of Preferred Stock are outstanding, the Corporation shall not, without the affirmative vote of the Holders of a majority of the then outstanding shares of the Preferred Stock, after the date hereof (a) alter or change adversely the powers, preferences or rights given to the Preferred Stock or alter or amend this Certificate of Designation, (b) amend its certificate of incorporation or other charter documents in any manner that adversely affects any rights of the Holders, (c) increase the number of authorized shares of Preferred Stock, or (d) enter into any agreement with respect to any of the foregoing.

Section 5. Liquidation Preference.

(a) In the event of any liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary (a “Liquidation”), subject to the rights of any existing series of Corporation preferred stock or to the rights of any series of preferred stock which may from time to time hereafter come into existence, the Holders of the Preferred Stock shall be entitled to receive for each share of Preferred Stock held thereby, out of (but only to the extent) the assets of the Corporation are legally available for distribution to its stockholders, pari passu with then outstanding Parity Securities (after any Corporation securities that are senior in preference) and prior and in preference to any distribution of any of the assets of the Corporation to the holders of Junior Securities by reason of their ownership thereof, the Stated Value per share of Preferred Stock then held by them, plus declared but unpaid dividends to which the Holder(s) of the shares of Preferred Stock are entitled to and are payable. If, upon the occurrence of any Liquidation the assets and funds thus distributed among the holders of the Preferred Stock shall be insufficient to permit the payment to such holders of the full aforesaid preferential amounts, then, subject to the rights of any existing series of Corporation preferred stock or to the rights of any series of Corporation preferred stock, which may from time to time hereafter come into existence (in each case, including those senior Corporation preferred stock or Parity Securities), such assets and funds of the Corporation that are legally available for distribution shall be distributed ratably among the holders of the each series of Corporation preferred stock in accordance with their preference and in proportion to the preferential amount such series of preferred stock and their holders are otherwise respectively entitled to receive upon such Liquidation.

(b) Upon the completion of the distribution required by Section 5(a) above and any other distribution that may be required with respect to the preference and rights of any existing series of Corporation preferred stock or to the rights of any series of Preferred Stock which may from time to time hereafter come into existence, if assets remain in the Corporation, the remaining assets shall be distributed to the holders of the Common Stock and other Junior Securities until such time as the holders of the Common Stock and Junior Securities shall have received a return of the capital originally contributed thereby. Thereafter, if assets remain in the Corporation that are legally available for distribution to its stockholders, subject to the rights of any senior Corporation preferred stock, then all such remaining assets shall be distributed to all holders of Common Stock, holders of other Junior Securities and holders of Preferred Stock and Parity Securities, pro rata based on the number of shares of Common Stock held by each (assuming conversion of all such Preferred Stock into Common Stock).

(c) For purposes of this Section 5, a Liquidation shall be deemed to include (i) the completed acquisition of the Corporation by another entity by means of any transaction or series of related transactions (including, without limitation, any reorganization, merger or consolidation, but excluding any merger effected exclusively for the purpose of changing the domicile of the Corporation); or (ii) a completed sale of all or substantially all of the assets of the Corporation, unless the Corporation’s stockholders of record as constituted immediately prior to such acquisition or sale as contemplated by subsections (i) and (ii) above will, immediately after such acquisition or sale (by virtue of securities issued as consideration for the Corporation’s acquisition or sale or otherwise) hold at least fifty percent (50%) of the voting power of the surviving or acquiring entity in approximately the same relative percentages after such acquisition or sale as before such acquisition or sale.

(d) In any of the events specified in (c) above, if the consideration received by the Corporation is other than cash, its value will be deemed its fair market value. Any securities shall be valued as follows:

(i) Securities not subject to investment letter or other similar restrictions on free marketability:

(A) If traded on a securities exchange, the value shall be deemed to be the average of the closing prices of the securities on such exchange over the thirty-day period ending three (3) days prior to the closing;

(B) If actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable) over the thirty-day period ending three (3) days prior to the closing; and

(C) If there is no active public market, the value shall be the fair market value thereof, as determined in good faith by the Board of Directors.

(ii) The method of valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall be to make an appropriate discount from the market value determined as above in (i) (A), (B) or (C) to reflect the approximate fair market value thereof, as mutually determined by the Corporation and the holders of at least a majority of the voting power of all then outstanding shares of Preferred Stock.

(iii) In the event the requirements of this Section 5 are not complied with, the Corporation shall forthwith either:

(A) cause such closing to be postponed until such time as the requirements of this Section 5 have been complied with; or

(B) cancel such transaction, in which event the rights, preferences and privileges of the holders of the Preferred Stock shall revert to and be the same as such rights, preferences and privileges existing immediately prior to the date of the first notice referred to in Section 5(d)(iv) hereof.

(iv) The Corporation shall give each holder of record of Preferred Stock written notice of such impending transaction not later than twenty (20) days prior to the stockholders’ meeting called to approve such transaction, or twenty (20) days prior to the closing of such transaction, whichever is earlier, and shall also notify such holders in writing of the final approval of such transaction. The first of such notices shall describe the material terms and conditions of the impending transaction and the provisions of this Section 5, and the Corporation shall thereafter give such holders prompt notice of any material changes. The transaction shall in no event take place sooner than twenty (20) days after the Corporation has given the first notice provided for herein or sooner than ten (10) days after the Corporation has given notice of any material changes provided for herein; provided, however, that time periods set forth in this paragraph may be shortened upon the written consent of the holders of Preferred Stock that are entitled to such notice rights or similar notice rights and that represent at least a majority of the voting power of all then outstanding shares of such Preferred Stock.

(e) Notwithstanding anything to the contrary, the provisions of this Section 5 shall not apply to any Post-Investment Transaction or any of the transactions contemplated to be performed pursuant to the Purchase Agreement.

Section 6. Conversion.

(a) Conversions at Option of Holder. Each one share of Preferred Stock shall be convertible, at any time and from time to time from and after the Original Issue Date at the option of the Holder thereof, into 160 shares of Common Stock (subject to the limitations set forth in Section 6(d) or upon conversion as provided in Section 6(b)) (the “Conversion Ratio”). Holders shall effect conversions by providing the Corporation with the form of conversion notice attached hereto as Annex A (a “Notice of Conversion”). Each Notice of Conversion shall specify the number of shares of Preferred Stock to be converted, the number of shares of Preferred Stock owned prior to the conversion at issue, the number of shares of Preferred Stock owned subsequent to the conversion at issue and the date on which such conversion is to be effected, which date may not be prior to the date the applicable Holder delivers by facsimile or email such Notice of Conversion to the Corporation (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion to the Corporation is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required. The calculations and entries set forth in the Notice of Conversion shall control in the absence of manifest or mathematical error. To effect conversions of shares of Preferred Stock, a Holder shall not be required to surrender the certificate(s) representing the shares of Preferred Stock to the Corporation unless all of the shares of the Preferred Stock represented thereby are so converted, in which case such Holder shall deliver the certificate representing such shares of Preferred Stock promptly following the Conversion Date at issue. Shares of Preferred Stock converted into Common Stock or redeemed in accordance with the terms hereof shall be canceled and shall not be reissued.

(b) Automatic Conversion. Subject to the provisions of this Section 6, effective as of 5:00 p.m. (New York City, New York time) on the third Business Day after the Stockholders Meeting at which Stockholder Approval is obtained (the “Automatic Conversion Date”), all of the outstanding shares of Preferred Stock (including any fraction of a share) held by the Holder(s) shall automatically convert (the “Automatic Conversion”) along with any aggregate accrued or accumulated and unpaid dividends thereon. Each one share of Preferred Stock shall be convertible into an aggregate number of shares of Common Stock (including any fraction of a share) as is determined by the Conversion Ratio. On the Automatic Conversion Date, the outstanding shares of Preferred Stock shall be converted automatically without any further action by the Holder and whether or not any certificates representing such shares are surrendered to the Corporation or the Transfer Agent. Shares of Preferred Stock converted into Common Stock or redeemed in accordance with the terms hereof shall be canceled and shall not be reissued.

(i) Delivery of Conversion Shares Upon Conversion. Not later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) after each Conversion Date or the Automatic Conversion Date (the “Share Delivery Date”), the Corporation shall deliver, or cause to be delivered, to the converting Holder (A) the number of Conversion Shares being acquired upon the conversion of the Preferred Stock and (B) a bank check in the amount of accrued and unpaid dividends, if any. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Corporation’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Conversion. Notwithstanding the foregoing, with respect to any Notice(s) of Conversion delivered by 12:00 pm (New York time) on the Original Issue Date, the Corporation agrees to deliver the Conversion Shares subject to such notice(s) by 4:00 pm (NY time) on the Original Issue Date.

(ii) Failure to Deliver Conversion Shares After Notice of Conversion. If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Corporation at any time on or before its receipt of such Conversion Shares, to rescind such Notice of Conversion, in which event the Corporation shall promptly return to the Holder any original Preferred Stock certificate delivered to the Corporation and the Holder shall promptly return to the Corporation the Conversion Shares issued to such Holder pursuant to the rescinded Notice of Conversion.

(iii) Obligation Absolute; Partial Liquidated Damages. The Corporation’s obligation to issue and deliver the Conversion Shares upon conversion of Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by a Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by such Holder or any other Person of any obligation to the Corporation or any violation or alleged violation of law by such Holder or any other person, and irrespective of any other circumstance which might otherwise limit such obligation of the Corporation to such Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Corporation of any such action that the Corporation may have against such Holder. If the Corporation fails to deliver to a Holder such Conversion Shares pursuant to Section 6(c)(i) by the Share Delivery Date applicable to such conversion, the Corporation shall pay to such Holder, in cash, as liquidated damages and not as a penalty, for each $8.00 of Stated Value of Preferred Stock being converted, $0.50 per Trading Day for each Trading Day after the Share Delivery Date until such Conversion Shares are delivered or Holder rescinds such conversion pursuant to Section 6(b)(ii). Nothing herein shall limit a Holder’s right to pursue actual damages for the Corporation’s failure to deliver Conversion Shares within the period specified herein, and such Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit a Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law.

(iv) Compensation for Buy-In on Failure to Timely Deliver Conversion Shares Upon Conversion. In addition to any other rights available to the Holder, if the Corporation fails for any reason to deliver to a Holder the applicable Conversion Shares by the Share Delivery Date pursuant to Section 6(c)(i), and if after such Share Delivery Date such Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by such Holder of the Conversion Shares which such Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then the Corporation shall (A) pay in cash to such Holder (in addition to any other remedies available to or elected by such Holder) the amount, if any, by which (x) such Holder’s total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that such Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions) and (B) at the option of such Holder, either reissue (if surrendered) the shares of Preferred Stock equal to the number of shares of Preferred Stock submitted for conversion (in which case, such conversion shall be deemed rescinded) or deliver to such Holder the number of shares of Common Stock that would have been issued if the Corporation had timely complied with its delivery requirements under Section 6(c)(i). For example, if a Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of shares of Preferred Stock with respect to which the actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately preceding sentence, the Corporation shall be required to pay such Holder $1,000. The Holder shall provide the Corporation written notice indicating the amounts payable to such Holder in respect of the Buy-In and, upon request of the Corporation, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Corporation’s failure to timely deliver Conversion Shares upon conversion of the shares of Preferred Stock as required pursuant to the terms hereof.

(v) Reservation of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Preferred Stock as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the other holders of the Preferred Stock), not less than such aggregate number of shares of the Common Stock as shall be issuable (taking into account the adjustments and restrictions of Section 7) upon the conversion of the then outstanding shares of Preferred Stock. The Corporation covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.

(vi) RESERVED

(vii) Transfer Taxes and Expenses. The issuance of Conversion Shares on conversion of this Preferred Stock shall be made without charge to any Holder for any documentary stamp or similar taxes in the United States that may be payable in respect of the issue or delivery of such Conversion Shares, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such shares of Preferred Stock and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid. The Corporation shall pay all Transfer Agent fees required for same-day processing of any Notice of Conversion and all fees to the DTC (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares.

(d) Share Issuance Limitation. Notwithstanding anything to the contrary herein, and except for the Automatic Conversion, the Corporation shall not effect any conversion of the Preferred Stock, and a Holder shall not have the right to convert any portion of the Preferred Stock, to the extent that, after giving effect to the conversion set forth on the applicable Notice of Conversion, such Holder (together with such Holder’s Affiliates, and any Persons acting as a group together with such Holder or any of such Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially or otherwise own in excess of the Share Issuance Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially or otherwise owned by such Holder and its Affiliates and Attribution Parties shall include (i) the number of shares of Common Stock issuable upon conversion of the Preferred Stock with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon conversion of the remaining, unconverted Stated Value of Preferred Stock beneficially or otherwise owned by such Holder or any of its Affiliates or Attribution Parties and (ii) the number of shares of Common Stock and other Corporation securities that are otherwise issuable upon exercise or conversion that are beneficially or otherwise owned by the Holder or any of its Affiliates or Attribution Parties, including Parity Securities. Except as set forth in the preceding sentence, for purposes of this Section 6(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 6(d) applies, the determination of whether the Preferred Stock is convertible (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and of how many shares of Preferred Stock are convertible shall be in the sole discretion of such Holder, and the submission of a Notice of Conversion shall be deemed to be such Holder’s determination of whether the shares of Preferred Stock may be converted (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and how many shares of the Preferred Stock are convertible, in each case subject to the Share Issuance Limitation. To ensure compliance with this restriction, each Holder will be deemed to represent to the Corporation each time it delivers a Notice of Conversion that such conversion will not violate the Share Issuance Limitation and other restrictions set forth in this paragraph, which the Holder acknowledges and agrees that the Corporation shall be entitled to rely upon for purposes of allowing any conversion of the Preferred Stock. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 6(d), in determining the number of outstanding shares of Common Stock, a Holder may rely solely on the number of outstanding shares of Common Stock as stated in a written notice by the Corporation or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request (which may be via email) of a Holder, the Corporation shall within two Trading Days confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including the Preferred Stock, by such Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Share Issuance Limitation” shall mean, as of any date, the lower of either, (X) the maximum percentage of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of the Preferred Stock that can be issued to the Holder without requiring a vote of the stockholders of the Corporation under the rules and regulations of the Trading Market on which the Common Stock trades on such date and applicable securities laws; or (Y) 19.99% of the number of shares of the Common Stock outstanding as of the date of the Purchase Agreement, after the Holder takes into account all Parity Securities, Junior Securities and any other Corporation securities to which such Holder and any of its Affiliates and Attribution Parties beneficially or otherwise own as of the date of the Purchase Agreement. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 6(d) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Share Issuance Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of Preferred Stock. For avoidance of doubt, the limitations contained in this Section 6(d) shall not apply after Stockholder Approval and the Automatic Conversion occurs pursuant to Section 6(b) hereof. Additionally, each and every reference to share numbers and/or percentage of shares of Common Stock in this Section 6(d) (including the definition of Share Issuance Limitation above) shall be subject to adjustment automatically for any reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Certificate of Designation.

Section 7. Certain Adjustments.

(a) Stock Dividends and Stock Splits. If the Corporation, at any time while this Preferred Stock is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any other Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation upon conversion of, or payment of a dividend on, this Preferred Stock), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Corporation, then the number of shares of Common Stock underlying each share of Preferred Stock shall be convertible into shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. For the avoidance of doubt, the Post-Investment Transaction and Special Dividend shall not result in an adjustment of the number of shares of Common Stock underlying each share of Preferred Stock under this Section 7(a). Any adjustment made pursuant to this Section 7(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.

(b) Subsequent Rights Offerings. Except as provided in Section 7(g), in addition to any adjustments pursuant to Section 7(a) above, if at any time the Corporation grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of such Holder’s Preferred Stock (without regard to any limitations on exercise hereof, including without limitation, the Share Issuance Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Share Issuance Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Share Issuance Limitation).

(c) Pro Rata Distributions. During such time as this Preferred Stock is outstanding, if the Corporation declares or makes any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction), except for the Special Dividend (a “Distribution”), at any time after the issuance of this Preferred Stock, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Preferred Stock (without regard to any limitations on conversion hereof, including without limitation, the Share Issuance Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Share Issuance Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Share Issuance Limitation).

(d) Fundamental Transaction. Except as provided in Section 7(g), if, at any time while any shares of Preferred Stock are outstanding, (i) the Corporation, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Corporation with or into another Person, (ii) the Corporation, directly or indirectly, consummates any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions with another Person, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Corporation or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Corporation, directly or indirectly, in one or more related transactions consummates any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Corporation, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent conversion of the Preferred Stock by the Holder thereof, the Holder shall receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in Section 6(d) on the conversion of the Preferred Stock), the number of shares of common stock (as applicable) of the successor or acquiring corporation or the number of shares of Common Stock of the Corporation (as applicable), if it is the surviving corporation, and all additional securities (equity or debt), cash, property or other consideration (all such additional consideration, the “Alternate Consideration”), receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which such Holder’s Preferred Stock is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 6(c) on the conversion of the Preferred Stock). If holders of Common Stock are entitled to elect the proportion of securities, cash, property or other consideration to be received by holders of Common Stock in a Fundamental Transaction, then each Holder of Preferred Stock shall be given the same choice as to the proportion of securities, cash, property or other consideration such Holder is entitled to receive upon any conversion of such Holder’s shares of Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental Transaction shall file a new certificate of designations in respect of a new series of preferred stock of the successor or acquiring corporation, or the Corporation, if it is the surviving corporation, setting forth the same rights, preferences, privileges and other terms contained in this Certificate of Designation in respect of the Preferred Stock, including, without limitation, the provisions contained in this Section 7(d) and evidencing, among other things, the Holders’ right to convert such new preferred stock into Alternate Consideration. The Corporation shall cause any successor entity in a Fundamental Transaction in which the Corporation is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Corporation under this Certificate of Designation in accordance with the provisions of this Section 7(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of a Holder of Preferred Stock, deliver to such Holder in exchange for such Holder’s Preferred Stock a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the Preferred Stock which is convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of the Preferred Stock (without regard to any limitations on the conversion of the Preferred Stock) prior to such Fundamental Transaction, and with a conversion ratio (or conversion price, as the case may be) which applies the Conversion Ratio to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such Conversion Ratio being for the purpose of protecting the economic value of the Preferred Stock immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder thereof. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Certificate of Designation referring to the “Corporation” shall refer instead to the Successor Entity), and may exercise every right and power of the Corporation and shall assume all of the obligations of the Corporation under this Certificate of Designation with the same effect as if such Successor Entity had been named as the Corporation herein. For the avoidance of doubt, if, at any time while any shares of Preferred Stock are outstanding, a Fundamental Transaction occurs, pursuant to the terms of this Section 7(d), a Holder of Preferred Stock shall not be entitled to receive any consideration in such Fundamental Transaction in respect of such Holder’s shares of Preferred Stock, (i) if such transaction occurs as a result of one or a series of transactions contemplated by the Purchase Agreement and/or (ii) except as provided for in this Certificate of Designation (or any new certificate of designations in respect of a new series of preferred stock issued to the Holders of Preferred Stock as contemplated hereby).

(e) Full Ratchet Protection.

(i) Except as provided in Section 7(g), if at any time after the date of filing of this Certificate of Designation (x) the Corporation shall issue shares of Common Stock (or other shares of capital stock or other securities convertible into Common Stock), and (y) the consideration per share payable to the Corporation for the Common Stock (or other share of capital stock or other securities convertible into Common Stock) reflects a pre-money imputed equity value of the Corporation of less than Ten Million United States Dollars (US$10,000,000) (a “Dilutive Issuance”), then in each such case (subject to Section 7(e)(ii)), the Preferred Stock Conversion Ratio shall be adjusted by increasing the Stated Value to the lowest price per share at which any such share of Common Stock (or other share of capital stock or other securities convertible into Common Stock) has been so issued or sold; provided that, in the event the adjustment pursuant to this Section 7(e)(i) would result in the Dilutive Issuance requiring stockholder approval pursuant to the requirements of NYSE American LLC Company Guide Sections 710 through 713, the Stated Value shall be increased the greatest amount that would not require such stockholder approval.

(ii) Adjustments Only After Stock Issued; Determination of Consideration.

(A) The mere issuance of options, warrants or other securities (other than capital stock) convertible into capital stock of the Corporation shall not require an adjustment hereunder until such securities are exercised or converted into Common Stock capital stock of the Corporation (or capital stock convertible into Common Stock of the Corporation).

(B) For purposes of Section 7(e)(i), the reference to the consideration received by the Corporation for an issuance of capital stock convertible into Common Stock shall mean the aggregate of the consideration received for the issuance of such capital stock, plus the consideration that will be payable to the Corporation upon its conversion into Common Stock.

(iii) Exceptions. The provisions of Section 7(e)(i) shall not apply to the following issuances (each of the following an “Exempt Issuance”):

(A) any issuance otherwise covered by Sections 7(a) through 7(d);

(B) any stock options granted to employees or directors of the Corporation or the issuance of shares upon exercise thereof;

(D) any issuance in connection with the formation of joint ventures, strategic business relationships, or corporate partnering transactions;

(E) any issuance of shares in a public offering; or

(F) any other issuance with the written consent of the Holders of a majority of the voting power of all then outstanding shares of such Preferred Stock.

(iv) Effectiveness. Any adjustment made pursuant to Section 7(e)(i) above shall be made on the next Business Day following the date on which any such issuance is made and shall be effective retroactively immediately after the close of business on such date.

(v) Calculations. All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.

(f) Notice to the Holders.

(i) Adjustment to Conversion Amount. Whenever the number of shares of Common Stock that the shares of Preferred Stock are convertible into is adjusted pursuant to any provision of this Section 7, the Corporation shall promptly deliver to each Holder a notice setting forth the number of shares of Common Stock after such adjustment and setting forth a brief statement of the facts requiring such adjustment.

(ii) Notice to Allow Conversion by Holder. If (A) the Corporation shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Corporation shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Corporation shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Corporation shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Corporation is a party, any sale or transfer of all or substantially all of the assets of the Corporation, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or (E) the Corporation shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation, then, in each case, the Corporation shall cause to be filed at each office or agency maintained for the purpose of conversion of this Preferred Stock, and shall cause to be delivered to each Holder at its last address as it shall appear upon the stock books of the Corporation, at least fifteen (15) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Corporation, the Corporation shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to convert the Conversion Amount of this Preferred Stock (or any part hereof) during the 15-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.

(g) Adjustments Not Applicable. Notwithstanding anything to the contrary, the provisions of this Section 7 shall not apply to any Post-Investment Transaction or any investment or other transaction contemplated to occur or otherwise be performed pursuant to the Purchase Agreement, except in the case of Section 7(a).

Section 8. Miscellaneous.

(a) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by email, or sent by a nationally recognized overnight courier service, addressed to the Corporation, at 2000 Powell Street, Suite 1150, Emeryville, CA 94608, Attention: Corporate Secretary, e-mail address jhall@novabay.com or such other e-mail address or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section 8. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder to the Holders shall be in writing and delivered personally, by email, or sent by a nationally recognized overnight courier service addressed to each Holder at the email address or address of such Holder appearing on the books of the Corporation, or if no such email address or address appears on the books of the Corporation, at the principal place of business of such Holder, as set forth in the Purchase Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via email set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via email set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.

(b) Absolute Obligation. Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay liquidated damages and accrued dividends, as applicable, on the shares of Preferred Stock at the time, place, and rate, and in the coin or currency, herein prescribed.

(c) Lost or Mutilated Preferred Stock Certificate. If a Holder’s Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership hereof reasonably satisfactory to the Corporation.

(d) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflict of laws thereof. Each of the Corporation and each Holder agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by this Certificate of Designation (whether brought against the Corporation, a Holder or any of their respective Affiliates, directors, officers, stockholders, employees or agents) shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan, New York (the “New York Courts”). Each of the Corporation and each Holder hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding. Each of the Corporation and each Holder hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such Person at the address in effect for notices to it under this Certificate of Designation and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. Each of the Corporation and each Holder hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated hereby. If the Corporation or any Holder shall commence an action or proceeding to enforce any provisions of this Certificate of Designation, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.

(e) Waiver. Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that Person (or any other Holder) of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion. Any waiver by the Corporation or a Holder must be in writing.

(f) Severability. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law.

(g) Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.

(h) Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be deemed to limit or affect any of the provisions hereof.

(i) Status of Converted or Redeemed Preferred Stock. Shares of Preferred Stock may only be issued pursuant to the Purchase Agreement. If any shares of Preferred Stock shall be converted, redeemed or reacquired by the Corporation, such shares shall resume the status of authorized but unissued shares of preferred stock and shall no longer be designated as Series D Convertible Preferred Stock.

* * *

RESOLVED, FURTHER, that the Chief Executive Officer, President and the Secretary of the Corporation be and hereby is authorized and directed to prepare and file this Certificate of Designation in accordance with the foregoing resolution and the provisions of Delaware law.

IN WITNESS WHEREOF, the undersigned has executed this Certificate this 19^th^ day of August, 2025.

/s/ Justin Hall
Name:	Justin Hall
Title:	Chief Executive Officer, President, General Counsel and Secretary

ANNEX A

NOTICE OF CONVERSION

(TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES OF PREFERRED STOCK)

The undersigned being the Holder of NovaBay Pharmaceuticals, Inc., a Delaware corporation (the “Corporation”) Series D Non-Voting Convertible Preferred Stock (the “Preferred Stock”) hereby elects to convert the number of shares of Series D Non-Voting Convertible Preferred Stock indicated below into shares of common stock, par value $0.01 per share (the “Common Stock”), of NovaBay Pharmaceuticals, Inc., according to the conditions as set forth in the Certificate of Designation of Preferences, Rights and Limitations of Series D Non-Voting Convertible Preferred Stock (the “Certificate of Designation”), as of the date written below. If shares of Common Stock are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as may be required by the Corporation in accordance with the Purchase Agreement. No fee will be charged to the Holders for any conversion, except for any such transfer taxes.

Conversion calculations:

Date to Effect Conversion:
Number of shares of Preferred Stock owned prior to Conversion:
Number of shares of Preferred Stock to be Converted:
Stated Value of shares of Preferred Stock to be Converted:
Number of shares of Common Stock to be Issued:
Applicable Conversion Price:
Number of shares of Preferred Stock subsequent to Conversion:
Address for Delivery:
or
DWAC Instructions:
Broker no:
Account no:
[HOLDER]
---	---
By:
	Name:
	Title:

A-1

Exhibit 3.2

NOVABAY PHARMACEUTICALS, INC.

CERTIFICATE OF DESIGNATION OF PREFERENCES,

RIGHTS AND LIMITATIONS

SERIES E NON-VOTING CONVERTIBLE PREFERRED STOCK

PURSUANT TO SECTION 151 OF THE

DELAWARE GENERAL CORPORATION LAW

The undersigned, Justin Hall, does hereby certify that:

He is the Chief Executive Officer, President and Secretary of NovaBay Pharmaceuticals, Inc., a Delaware corporation (the “Corporation”).
The Corporation is authorized to issue [10,000,000]^1^ shares of preferred stock, [496,250]^2^ of which have been issued.
This Certificate of Designation of Preferences, Rights and Limitations of Series E Non-Voting Convertible Preferred Stock (the “Certificate of Designation”) that includes the following resolutions have been approved and adopted by the board of directors of the Corporation (the “Board of Directors”):

WHEREAS, the Amended and Restated Certificate of Incorporation, as amended of the Corporation provides for a class of its authorized stock known as preferred stock, consisting of [10,000,000] shares, $0.01 par value per share, issuable from time to time in one or more series;

WHEREAS, it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating to a new series of Corporation preferred stock titled “Series E Non-Voting Convertible Preferred Stock”, which shall consist of up to 268,750 shares of the preferred stock, which the Corporation has the authority to issue, as follows:

^1^	NTD: Final authorized share number assumes stockholder approval of the increase in authorized preferred stock (as contemplated in Section 4.15(b) of the Purchase Agreement).
^2^	NTD: Share number will be confirmed at the time of issuance.