NovaBay Pharmaceuticals, Inc. (Form: 8-K, Received: 10/11/2018 16:32:08)

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: October 9, 2018

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))

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

(c) As previously disclosed in Item 5.02 of NovaBay Pharmaceuticals, Inc.’s (the “Company”) Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on September 28, 2018, effective the same day, Mark M. Sieczkarek’s positions as the President and Chief Executive Officer of the Company terminated upon the appointment of John J. McGovern, the Company’s Chief Financial Officer and Treasurer, to also serve as Interim President and Chief Executive Officer. Mr. Sieczkarek will remain as Chairman of the Company’s Board of Directors (the “Board”).

A description of Mr. McGovern’s compensatory arrangement with the Company in connection with his position as the Chief Financial Officer and Treasurer, which included a base salary of $298,000 per annum effective July 17, 2017, is disclosed in the Company’s Proxy Statement on Schedule 14A filed with the SEC on April 18, 2018 and incorporated herein by reference. On October 9, 2018, the Board (i) approved an increase of Mr. McGovern’s base salary to $370,000 per annum, effective October 1, 2018, and (ii) granted Mr. McGovern 250,000 non-qualified stock options under the Company’s 2017 Omnibus Incentive Plan, effective October 9, 2018, both in consideration of his additional new positions as the Interim President and Chief Executive Officer of the Company. The exercise price of the stock options are $1.45 per share, the closing price of the Company’s common stock on the NYSE American on the grant date. Such stock options will vest quarterly over four (4) years beginning on the grant date.

(d) On October 9, 2018, upon recommendation by the Compensation Committee of the Board, the Board approved amending the Non-Employee Director Compensation Plan for the 2018 fiscal year (the “Amended Plan”), effective October 1, 2018, to include cash compensation for a non-employee Chairman of the Board in the amount of $52,000 per annum, in addition to the base cash compensation for a non-employee director in the amount of $30,000 per annum. Since Mr. Sieczkarek remains as the Chairman of the Board but is no longer an employee of the Company, he is now entitled to the cash compensation of $82,000 per annum and the other compensation under the Amended Plan. The foregoing description of the Amended Plan does not purport to be complete and is qualified in its entirety by reference to the full text of the Amended Plan, which is attached hereto as Exhibit 10.1 and incorporated by reference herein.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits .

Exhibit No.		Description
10.1		Non-Employee Director Compensation Program, as amended

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 Hall
		Justin Hall
		Senior Vice President, General Counsel

Dated: October 11, 2018

Exhibit 10.1

NON-EMPLOYEE DIRECTOR COMPENSATION PLAN
Effective October 1, 2018

1. Purpose . The purpose of NovaBay Pharmaceuticals, Inc. (hereinafter referred to as “NovaBay” or the “Company) Non-Employee Director Compensation Plan (the “Plan”) is to advance the interests of NovaBay and its shareholders by closely aligning the interests of the Non-Employee Directors with the Company and its shareholders. This Plan requires the payment of the annually established compensation payable to Non-Employee Directors for their service to be in cash and stock options to purchase the Company’s Common Stock (“Options). Options issuable under this Plan shall be from the shareholder approved 2017 Omnibus Incentive Plan.

2. Administration . The Compensation Committee of the Board (the “Committee”) shall administer the Plan. The Committee shall, subject to the provisions of the Plan, have the power to construe the Plan, to determine all questions arising thereunder, and to adopt and amend such rules and regulations for the administration of the Plan, as it may deem desirable. Any decisions of the Committee in the administration of the Plan, as described herein, shall be final and conclusive. The Committee may authorize any one or more of its members or any officer of the Company to execute and deliver documents on behalf of the Committee. No member of the Committee shall be liable for anything done or omitted to be done by him or her or by any other member of the Board in connection with the Plan, except for his or her own willful misconduct or as expressly provided by statute.

3. Participation; Amount of Non-Employee Director Compensation . The Committee shall annually approve the amount of compensation payable for services to be performed by Non-Employee Directors. Effective January 1, 2018 such fees shall be payable only in cash as follows:

Cash Compensation

Status	Compensation	Comment
Non-Employee Director	$30,000 per year	Paid Quarterly

Non-Employee Chairman of the Board of Directors	$52,000 per year	Paid Quarterly

Chairman of the Comp Committee	$10,000 per year	Paid Quarterly

Chairman of the Audit Committee	$12,000 per year	Paid Quarterly

Chairman of the N&CG Committee	$8,000 per year	Paid Quarterly

Member of the Audit Committee	$6,000 per year	Paid Quarterly

Member of the Comp or N&CG	$5,000 per year	Paid Quarterly

Lead Independent Director	$20,000 per year	Paid Quarterly

4. Payment of Non-Employee Director Compensation .

Each Non-Employee Director shall be paid the cash compensation payable to such Non-Employee Director as determined pursuant to Section 3 above on the first business day of the calendar quarter for such quarter.

In addition to the above cash compensation, each Non-Employee Director shall receive an annual stock option grant of 20,000 shares, granted at the Company’s Annual Meeting of Stockholders. To be eligible to receive the annual stock option grant, the director must be a current member of the Board. Newly elected, or re-elected members, are eligible for the annual grant. If a Board member is retiring or is not re-elected at the Annual Meeting, he/she is not eligible for the annual grant. Vesting of the stock option awards shall be monthly over the following 12 months.

5. Miscellaneous Provisions .

(a) Neither the Plan nor any action taken hereunder shall be construed as giving any Non-Employee Director any right to be elected or re-elected as a director of the Company.

(b) A participant’s rights and interest under the Plan may not be assigned or transferred, hypothecated, or encumbered in whole or in part either directly or by operation of law or otherwise (except in the event of a participant’s death, by will, or the laws of descent and distribution), including, but not by way of limitation, execution, levy, garnishment, attachment, pledge, bankruptcy, or in any other manner, and no such right or interest of any participant in the Plan shall be subject to any obligation or liability of such participant.

(c) The Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of assets to assure the payment of the Non-Employee Director’s compensation.

(d) The provisions of this Plan shall be governed by and construed in accordance with the laws of the State of California.

(e) Headings are given to the sections of this Plan solely as a convenience to facilitate reference. Such headings, numbering, and paragraphing shall not in any case be deemed in any way material or relevant to the construction of this Plan or any provisions thereof. The use of the singular shall also include within its meaning the plural, where appropriate, and vice versa.

6. Termination . This Plan shall terminate upon the earlier of the following dates or events to occur:

(a)

upon the adoption of a resolution of the Committee and approved by the Board terminating the Plan; or

(b)

December 31, 2018.