Stablecoin Development Corp 10-K

ITEM 9A. CONTROLS AND PROCEDURES   Evaluation of Disclosure Controls and Procedures   As of the end of the period covered by this report, we carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of our disclosure controls and procedures pursuant to Rule 13a-15 and 15d-15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).   A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Assessing the costs and benefits of such controls and procedures necessarily involves the exercise of judgment by management. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, have been detected.   Based upon that evaluation at December 31, 2021, our Chief Executive Officer and our Chief Financial Officer concluded that our disclosure controls and procedures were effective to ensure, at the reasonable assurance level, that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms and were effective in ensuring that information required to be disclosed by us in the reports that we file or submit under the Exchange Act was accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.   Management's Report on Internal Control over Financial Reporting .   Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rules 13a-15(f) and 15d-15(f). Under the supervision and with the participation of our management, including our principal executive officer and our principal financial officer, we conducted an evaluation of the effectiveness of our internal control over financial reporting as of December 31, 2021 for non-DERMAdoctor operations. Our management utilized the criteria set forth in "Internal Control-Integrated Framework (2013)" issued by the Committee of Sponsoring Organizations of the Treadway Commission to conduct an assessment of the effectiveness of our internal control over financial reporting as of December 31, 2021 for non-DERMAdoctor operations. Our management has concluded that, as of December 31, 2021, our internal control over financial reporting was effective based on these criteria for non-DERMAdoctor operations.   The Company has one year to evaluate the Internal Control over Financial Reporting for the DERMAdoctor organization.   Changes in Internal Control Over Financial Reporting   There were no changes in our internal control over financial reporting which has materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.   ITEM 9B. OTHER INFORMATION   On March 23, 2022, the Company’s Board authorized amendments to, and restatement of, the Company’s Bylaws (the “Amended and Restated Bylaws”).  In addition to certain administrative updates, the Company’s Amended and Restated Bylaws include the following amendments:     ● Updates to Article XI (Indemnification) to indemnify directors to the fullest extent permitted by Delaware law.     ● Adding a new Section 48 (Exclusive Forums for Adjudication of Disputes) to provide that the Delaware Court of Chancery shall be the exclusive forum for derivative actions, actions for breach of fiduciary duty, actions pursuant to the Delaware General Corporation, the Company’s Certificate of Incorporation or the Amended and Restated Bylaws or actions under the internal affairs doctrine. This provision does not relate to suits under the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other claim for which the federal courts have exclusive jurisdiction.   The directors believe that the above amendments will better assist the Company in attracting qualified directors and officers as well as prevent forum shopping. The above summary does not purport to be complete and is qualified in its entirety by reference to the Amended and Restated Bylaws, a copy of which is filed as Exhibit 3.7 to this Annual Report on Form 10-K and is incorporated herein by reference.   ITEM 9C. DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS   Not applicable.   67 Table of Contents   PART III   ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE   The information required by this item will be included in our Proxy Statement for the 2022 Annual Meeting of Stockholders (the “2022 Proxy Statement”) and is incorporated herein by reference.   ITEM 11. EXECUTIVE COMPENSATION   The information required by this item will be included in the 2022 Proxy Statement and is incorporated herein by reference.   ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS   The information required by this item will be included in the 2022 Proxy Statement and is incorporated herein by reference.   ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE   The information required by this item will be included in the 2022 Proxy Statement and is incorporated herein by reference.   ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES   The information required by this item will be included in the 2022 Proxy Statement and is incorporated herein by reference.   68 Table of Contents   PART IV   ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES   (a) Documents filed as part of this report:   (1) Financial Statements . The financial statements listed in the Index for Item 8 hereof are filed as part of this report.   (2) Financial Statement Schedules . All schedules have been omitted because they are not required or the required information is included in our consolidated financial statements and notes thereto.   (3) Exhibits . The following exhibits are filed as part of this Report:     Incorporation by Reference Filed Herewith Exhibit Number Exhibit Description Form File Number Exhibit/ Form 8-K Item Reference Filing Date   2.1 Membership Unit Purchase Agreement dated September 27, 2021, by and among the Company, DERMAdoctor, the Founders and the Sellers (as defined therein) 8-K 001-3678 2.1 9/28/2021   3.1 Amended and Restated Certificate of Incorporation of NovaBay Pharmaceuticals, Inc. 10-K 001-33678 3.1 3/21/2018   3.2 Amendment to the Amended and Restated Certificate of Incorporation 8-K 001-33678 3.1 6/04/2018   3.3 Amendment to the Amended and Restated Certificate of Incorporation, as amended 8-K 001-33678 3.1 5/28/2020   3.4 Amendment to the Amended and Restated Certificate of Incorporation, as amended, dated May 24, 2021 8-K 001-33678 3.1 5/24/2021   3.5 Amendment to the Amended and Restated Certificate of Incorporation, as amended, dated January 31, 2022 8-K 001-33678 3.1 2/1/2022   3.6 Certificate of Designation for the Series B Preferred Stock 8-K 001-33678 3.1 11/1/2021   3.7 Amended and Restated Bylaws         X 4.1 Description of Securities         X 4.2 Form of Warrant pursuant to the Services Agreement with TLF Bio Innovation Lab, LLC, dated May 13, 2020 8-K 001-33678 4.1 5/18/2020   4.3 Form of July 2020 Warrant 8-K 001-33678 4.1 7/21/2020   4.4 Form of November 2021 Warrant 8-K 001-33678 4.1 11/01/2021   10.1+ Director and Officer Indemnity Agreement         X 10.2+ NovaBay Pharmaceuticals, Inc. 2007 Omnibus Incentive Plan  (as amended and restated) S-8 333-215680 99.1 1/24/2017   10.3+ NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive Plan S-8 333-218469 99.1 6/02/2017   10.4+ NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive Plan (Form Agreements to the 2017 Omnibus Incentive Plan) S-8 333-218469 99.2 6/02/2017     69 Table of Contents   10.5+ Executive Employment Agreement (Employment Agreement of Justin M. Hall) 8-K 001-33678 10.1 2/6/2020   10.6+ First Amendment to the Executive Employment Agreement with Justin M. Hall, dated January 26, 2022 8-K 001-33678 10.6 1/28/2022   10.7+* Performance Restricted Stock Unit Award Agreement with Mr. Justin Hall 10-Q 001-33678 10.1 5/6/2021   10.8+ Executive Employment Agreement (Employment Agreement of Andrew D. Jones) 8-K 001-33678 10.8 5/5/2020   10.9+* Performance Restricted Stock Unit Award Agreement with Mr. Andrew Jones 10-Q 001-33678 10.2 5/6/2021   10.10+ Executive Employment Agreement with Dr. Audrey Kunin, dated November 5, 2021 8-K 001-33678 10.1 11/12/2021   10.11+ Side Letter with Dr. Audrey Kunin, dated November 5, 2021 8-K 001-33678 10.3 11/12/2021   10.12+* Performance Restricted Stock Unit Award Agreement with Dr. Audrey Kunin 8-K 001-33678 10.4 11/12/2021   10.13+ Executive Employment Agreement with Dr. Jeff Kunin, dated November 5, 2021 8-K 001-33678 10.2 11/12/2021   10.14+ Consulting Agreement between the Company and Eric Wu, dated November 17, 2020 8-K 001-33678 10.1 11/18/2020   10.15+ 2022 Non-Employee Director Compensation Plan         X 10.16 Office Lease (between the Company and KBSIII Towers at Emeryville, LLC) 8-K 001-33678 10.1 8/26/2016   10.17 First Amendment to Office Lease by and between the Company and KBSIII Towers at Emeryville, LLC, dated January 24, 2022 8-K 001-33678 10.2 1/28/2022   10.18† International Distribution Agreement (by and between the Company and Pioneer Pharma Co. Ltd.) 10-K 001-33678 10.18 3/27/2012   10.19 At the Market Offering Agreement between the Company and Ladenburg Thalmann & Co. Inc., dated April 27, 2020 8-K 001-33678 1.1 4/27/2020   10.20 At the Market Offering Agreement between the Company and Ladenburg Thalmann & Co. Inc., dated May 14, 2021 8-K 001-33678 1.1 5/14/2021   10.21 Paycheck Protection Program Promissory Note and Agreement, dated May 3, 2020, between the Company and Wells Fargo Bank, N.A. 10-Q 001-33678 10.28 5/7/2020   10.22 Form of Exercise Agreement with Holders of 2019 Domestic Warrants 8-K 001-33678 10.1 7/21/2020   10.23 Form of Exercise Agreement with Holders of 2019 Foreign Warrants 8-K 001-33678 10.2 7/21/2020   10.24 Form of Reprice Agreement with Ladenburg 8-K 001-33678 10.3 7/21/2020     70 Table of Contents   10.25 Form of Securities Purchase Agreement, dated October 29, 2021 8-K 001-33678 1.1 11/01/2021   10.26 Form of Registration Rights Agreement, dated October 29, 2021 8-K 001-33678 10.1 11/01/2021   21 Subsidiaries of the Company         X 23.1 Consent of WithumSmith+Brown PC         X 23.2 Consent of OUM & Co. LLP         X 31.1 Certification of the Principal Executive Officer of NovaBay Pharmaceuticals, Inc., as required by Rule 13a-14(a) or Rule 15d-14(a)         X 31.2 Certification of the Principal Financial Officer of NovaBay Pharmaceuticals, Inc., as required by Rule 13a-14(a) or Rule 15d-14(a)         X 32.1 Certification by the Chief Executive Officer of NovaBay Pharmaceuticals, Inc., as required by Rule 13a-14(b) or 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. 1350)         X 32.2 Certification by the Chief Financial Officer of NovaBay Pharmaceuticals, Inc., as required by Rule 13a-14(b) or 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. 1350)         X 101.INS Inline XBRL Instance Document         X 101.SCH Inline XBRL Taxonomy Extension Schema Document          X 101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document         X 101.DEF Inline XBRL Taxonomy Extension Definition Linkbase         X 101.LAB Inline XBRL Taxonomy Extension Labels Linkbase Document         X 101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document         X 104 The Cover Page Interactive Data File, formatted in Inline XBRL (included within the Exhibit 101 attachments)         X   + Indicates a management contract or compensatory plan or arrangement † NovaBay Pharmaceuticals, Inc. has been granted confidential treatment with respect to certain portions of this exhibit (indicated by asterisks), which have been separately filed with the Securities and Exchange Commission. * Certain confidential portions of this exhibit were omitted by means of marking such portions with brackets because the confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed.   71 Table of Contents   SIGNATURES   Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized.   Date: March 29, 2022     By: /s/   Justin Hall      Justin Hall  Chief Executive Officer, General Counsel and Director (principal executive officer)   Date: March 29, 2022     By: /s/   Andrew Jones      Andrew Jones Chief Financial Officer (principal financial officer)     POWER OF ATTORNEY   We, the undersigned officers and directors of NovaBay Pharmaceuticals, Inc., do hereby constitute and appoint Justin Hall and Andrew Jones, and each of them, our true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this report, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby, ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.   Pursuant to the requirements of the Securities Exchange Act of 1934, this report on Form 10-K has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated:   Signature   Title Date         /s/ JUSTIN HALL   Chief Executive Officer, General Counsel and Director March 29, 2022 Justin Hall   ( principal executive officer )           /s/ ANDREW JONES   Chief Financial Officer March 29, 2022 Andrew Jones   ( principal financial officer )           /s/ PAUL E. FREIMAN   Chairman of the Board March 29, 2022 Paul   E.   Freiman               /s/ JULIE GARLIKOV   Director March 29, 2022 Julie Garlikov               /s/ AUDREY KUNIN   Director March 29, 2022 Audrey Kunin               /s/ XINZHOU LI   Director March 29, 2022 Xinzhou Li (Paul Li)               /s/ SWAN SIT   Director March 29, 2022 Swan Sit               /s/ MIJIA WU   Director March 29, 2022 Mijia Wu, M.B.A. (Bob Wu)               /s/ YENYOU ZHENG   Director March 29, 2022 Yenyou (Jeff) Zheng         72