NBY NovaBay Pharmaceuticals Inc New

EXPLANATORY NOTE

This Registration Statement on Form S-8 registers a total of 610,774 shares of Common Stock, par value $0.01 per share, of NovaBay Pharmaceuticals, Inc., a Delaware corporation (the “Registrant” or the “Company”), for issuance under the NovaBay Pharmaceuticals, Inc. 2007 Omnibus Incentive Plan, as amended (the “Plan”). The number of shares of Common Stock available for issuance under the shareholder-approved Plan was subject to an automatic annual increase on the first day of each of the Company’s fiscal years beginning on January 1, 2009 and ending on January 1, 2017 by an amount equal to (i) four percent (4%) of the number of shares of Common Stock outstanding on the last day of the immediately preceding fiscal year or (ii) such lesser number of shares of Common Stock as determined by the Board of Directors (the “Board”).  For 2017, the Board authorized an increase of 610,774 shares of the Registrant’s Common Stock under the Plan, consisting of the full four percent (4%) increase allowed pursuant to the Plan’s evergreen provision. These shares are in addition to the 1,999,548 shares of Common Stock registered on the Company’s Form S-8 filed on November 13, 2007 (File No. 333-147334), and those shares of Common Stock previously registered pursuant to other annual increases pursuant to the Plan’s evergreen provision. Since the Plan provides that the annual increase in the aggregate number of shares that may be issued pursuant to the Plan’s evergreen provision ends for fiscal years commencing after January 1, 2017, this Registration Statement accounts for the final share increase under the evergreen provision.

In light of the expiry of the Plan’s evergreen provision, the Company has updated the Plan section containing such provision—Section 4(a)—to update the current outstanding number of shares available under the Plan to 2,318,486, which includes all shares issued under the Plan’s evergreen provision from fiscal years 2009 through 2017, as well as accounts for the Company’s December 2015 1-for-25 reverse stock split. Exhibit 99.1 hereto contains a full copy of the updated Plan.

The contents of the prior Registration Statements on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on November 13, 2007, January 30, 2009, and January 22, 2010 (File Nos. 333-147334, 333-157041 and 333-164469, respectively), Post-Effective Amendments No. 1 to Registration Statements on Form S-8 filed with the Commission on June 30, 2010 (File Nos. 333-147334, 333-157041 and 333-164469), and the prior Registration Statements on Form S-8 filed with the Commission on January 31, 2011, March 29, 2012, January 14, 2013, March 7, 2014, June 16, 2014, March 31, 2015, January 13, 2016, and June 1, 2016 (File Nos. 333-171981, 333-180461, 333-185998, 333-194383, 333-196764, 333-203109, 333-208985, and 333-211754, respectively), relating to the Plan, are incorporated herein by reference and made part of this Registration Statement, except as amended hereby.

This Registration Statement relates to securities of the same class as those to which the prior Registration Statements, listed directly above, relate, and is submitted in accordance with General Instruction E to Form S-8 regarding Registration of Additional Securities.