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 earliest event reported: December 15, 2016

 

NovaBay Pharmaceuticals, Inc.

(Exact Name of Registrant as Specified in Charter)

 

Delaware

001-33678

68-0454536

(State or Other Jurisdiction of Incorporation)

(Commission File Number)

(I.R.S. Employer 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))

 

 
 
 

   

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

 

(e)     On December 15, 2016, NovaBay Pharmaceuticals, Inc. (the “Company”) and Dr. Ramin (“Ron”) Najafi, the Company’s former President and Chief Executive Officer, entered into an amendment (the “Amendment”) to that certain Separation Agreement between the parties, dated as of November 18, 2015 (the “Separation Agreement”).

 

A description of the Separation Agreement was previously reported pursuant to Item 5.02(e) of the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on November 19, 2015, and the information set forth in such Item 5.02(e) is incorporated herein by reference. Under the original terms of the Separation Agreement, the Company agreed to pay the remaining $480,000 of the Executive’s separation payments on December 31, 2016. At the Company’s option, such $480,000 separation amount may consist of any of the following: (i) a grant of registered shares of the Company’s common stock, the total value of which will be equivalent to $480,000 (the “Grant”) (with the stock price used to determine the number of shares constituting the Grant being the average closing price of the last five (5) business days before the date of grant); (ii) a payment of $480,000 in cash; or (iii) a combination of such stock grant and cash, equal in the aggregate to $480,000 (any of such three options, the “Payment”). Pursuant to the Amendment, the parties have agreed to divide the Payment into two equal installments (rather than a single payment due on December 31, 2016), the first of which shall be paid and/or granted on December 16, 2016, and the second of which shall be paid and/or granted on January 15, 2017.

 

The foregoing description is qualified in its entirety by reference to the actual Amendment, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.

 

Item 9.01.     Financial Statements and Exhibits.

 

(d)           Exhibits .

 

Exhibit No.

 

Description

10.1

 

Amendment to Separation Agreement, dated December 15, 2016

 

 
 
 

 

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/ Justin M. Hall
   

Justin M. Hall

   

Senior Vice President, General Counsel

 

Dated: December 15, 2016

 

Exhibit 10.1

 

AMENDMENT TO SEPARATION AGREEMENT

 

This First Amendment, dated as of December 15, 2016 (this “ Amendment ”), is made by and between NovaBay Pharmaceuticals, Inc., a Delaware corporation (the “ Company ”), and Ramin (“ Ron ”) Najafi (the “ Executive ,” and collectively, the “ Parties ”).

 

WHEREAS, the Parties entered into a Separation Agreement as of November 18, 2015 (the “ Separation Agreement ”), whereby, among other things, the Company agreed to pay the remaining $480,000 of the Executive’s separation payments on December 31, 2016. At the Company’s option, such $480,000 separation amount may consist of any of the following: (i) a grant of registered shares of the Company’s common stock, the total value of which will be equivalent to $480,000 (the “ Grant ”) (with the stock price used to determine the number of shares constituting the Grant being the average closing price of the last five (5) business days before the date of grant); (ii) a payment of $480,000 in cash; or (iii) a combination of such stock grant and cash, equal in the aggregate to $480,000 (any of such three options, the “ Payment ”); and

 

WHEREAS, the Parties now wish to amend the Separation Agreement to divide the Payment into two equal installments (rather than a single payment due on December 31, 2016), the first of which shall be paid and/or granted on December 16, 2016, and the second of which shall be paid and/or granted on January 15, 2017.

 

NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

 

1.

Amendment to Separation Agreement . Effective as of the date hereof:

 

 

(a)

Section 2(b) of the Separation Agreement shall be replaced in its entirety as follows:

 

“b.     Subject to Section 2(c) , the Company agrees to pay the remaining $480,000 of the Executive’s separation payments (the “ Separation Payment Balance ”) by either, at the Company’s option, (i) granting Executive registered shares of the Company’s common stock (the “ Shares ”), the total value of which will be equivalent to $480,000 (the “ Grant ”) (with the stock price used to determine the number of shares constituting the Grant being the average closing price of the last five (5) business days before the date of grant); (ii) paying the balance of $480,000 in cash; or (iii) a combination of such stock grant and cash, equal in the aggregate to $480,000. Such Separation Payment Balance shall be divided into two equal installments, the first of which shall be paid and/or granted on December 16, 2016, and the second of which shall be paid and/or granted on January 15, 2017.”

 

 

2.

No Other Changes . Except as expressly amended by this Amendment, the Separation Agreement, and the rights, obligations, powers and remedies of the Parties thereunder, shall remain in full force and effect.

 

 

 
 
 

 

 

3.

Governing Law . This Amendment shall be governed by the laws of the State of California, without regard for choice-of-law provisions. Executive consents to personal and exclusive jurisdiction and venue in the State of California.

 

 

4.

Counterparts . This Amendment may be executed in counterparts and by facsimile, and each counterpart and facsimile shall have the same force and effect as an original and shall constitute an effective, binding agreement on the part of each of the undersigned.

 

 

 
 
 

 

IN WITNESS WHEREOF the Parties have executed this Amendment as of the date first written above.

 

 

NOVABAY PHARMACEUTICALS, INC.

 

 

 

 

 

 

 

 

 

 

By:

/s/  Mark M. Sieczkarek

 

 

 

Mark M. Sieczkarek

 

 

 

Title: President and Chief Executive Officer

 

       
       
    RAMIN (“RON”) NAJAFI  
       
    /s/ Ramin (“Ron”) Najafi