NBY NovaBay Pharmaceuticals Inc New

Item 1.01     Entry into a Material Definitive Agreement

On April 27, 2020, NovaBay Pharmaceuticals, Inc. (the “Company”) entered into an At the Market Offering Agreement (the “Agreement”) with Ladenburg Thalmann & Co. Inc. (“Ladenburg”) to sell shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), having a current aggregate offering amount of up to $4,302,137, which offering amount may change as described in the Agreement (the “Shares”), from time to time during the term of the Agreement, through an “at the market” equity offering program under which Ladenburg will act as the Company’s sales agent.

Under the Agreement, the Company will set the parameters for the sale of the Shares, including the maximum number of Shares to be sold daily and any minimum price per Share at which such Shares may be sold. Subject to the terms and conditions of the Agreement, Ladenburg may sell the Shares by methods deemed to be an “at the market offering” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended, including, without limitation, sales made through NYSE American LLC (“NYSE American”), on any other existing trading market for the Common Stock or to or through a market maker. In addition, if expressly authorized by the Company, Ladenburg may also sell Shares in privately negotiated transactions, provided Ladenburg receives prior written approval from the Company. In conducting such sales activities, Ladenburg will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of NYSE American. The Company has no obligation to make any sales of Common Stock under the Agreement. The offering of Shares pursuant to the Agreement will terminate on July 31, 2022 unless suspended or terminated earlier by the Company upon prior notice to Ladenburg, by Ladenburg upon prior notice to the Company, or otherwise by mutual agreement of the parties.

The Company will pay Ladenburg a commission equal to three percent (3.0%) of the gross sales proceeds of any Shares sold through Ladenburg under the Agreement, and also has provided Ladenburg with customary indemnification rights. 

Any sales of Shares under the Agreement will be made pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-232860) filed with the Securities and Exchange Commission (the “Commission”) and declared effective on July 31, 2019 (the “Registration Statement”). The Company filed a prospectus supplement with the Commission on April 27, 2020 in connection with the offer and sale of the Shares pursuant to the Agreement.

The foregoing description of the material terms of the Agreement is qualified in its entirety by reference to the full agreement, a copy of which is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.

This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of any offer to buy the securities discussed herein, nor shall there be any offer, solicitation or sale of the securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.