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: June 15, 2020

 

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)

 

Securities registered pursuant to Section 12(b) of the Act:

Title of Each Class

 

Trading Symbol(s)

 

Name of Each Exchange On Which

Registered

Common Stock, par value $0.01 per share

 

NBY

 

NYSE American

 

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 1.01     Entry into a Material Definitive Agreement

 

On June 15, 2020, NovaBay Pharmaceuticals, Inc. (the “Company”) filed a supplement (the “Supplement”) to its prospectus supplement, dated April 27, 2020, in connection with the offer and sale of shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), pursuant to that certain At the Market Offering Agreement (the “Agreement”), dated April 27, 2020 with Ladenburg Thalmann & Co. Inc. (“Ladenburg”) (the “ATM Program”). Pursuant to the Agreement, the Supplement increased the aggregate offering amount available under the ATM Program to $5,631,027 from $4,302,137. For additional information regarding the Agreement and the ATM Program, see the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 27, 2020.   

 

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.    

 

Item 9.01     Financial Statements and Exhibits

 

(d)     Exhibits

 

Exhibit No.

 

Description

5.1

 

Opinion of Squire Patton Boggs (US) LLP

23.1

 

Consent of Squire Patton Boggs (US) LLP (included in Exhibit 5.1)

 

 

 

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.

(Registrant)

 
       
 

By:

/s/ Justin Hall  

 
   

Justin Hall

 
   

President, Chief Executive Officer and General

Counsel

 

 

Dated: June 15, 2020

 

 
ex_190339.htm

Exhibit 5.1

 

June 15, 2020

 
The Board of Directors
NovaBay Pharmaceuticals, Inc.
2000 Powell Street, Suite 1150
Emeryville, CA 94608 

 

Re: Registration Statement on Form S-3 of NovaBay Pharmaceuticals, Inc. (No. 333-232860)

 

Dear Ladies and Gentlemen:

 

We have acted as counsel to you in connection with the above-referenced registration statement (the “Registration Statement”) filed on July 26, 2019 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), which included the base prospectus dated July 26, 2019 (the “Base Prospectus”), relating to the registration of the offering by NovaBay Pharmaceuticals, Inc., a Delaware corporation (the “Company”) of up to $10,000,000 of any combination of securities of the types specified therein. The Registration Statement was declared effective by the Commission on July 31, 2019. Reference is made to our opinion letter dated July 26, 2019 and included as Exhibit 5.1 to the Registration Statement. On April 27, 2020, the Company filed an At the Market Offering Agreement prospectus supplement (the “Prospectus Supplement”) with the Commission pursuant to Rule 424 under the Securities Act. The Prospectus Supplement related to the offering by the Company of shares of the Company’s common stock, par value $0.01 per share (“Common Stock”), having an aggregate offering price of up to $4,302,137 covered by the Registration Statement. Reference is made to our supplemental opinion letter dated April 27, 2020 and included as Exhibit 5.1 to that certain Form 8-K filed by the Company with the Commission on April 27, 2020 in connection with the filing of the Prospectus Supplement. We are delivering this supplemental opinion letter in connection with the supplement (the “Supplement”) to the Prospectus Supplement filed by the Company with the Commission on June 15, 2020 pursuant to Rule 424 under the Securities Act. The Supplement increases the offering amount to shares of Common Stock having an aggregate offering amount of up to $5,631,027 of which shares of Common Stock having an aggregate offering amount of up to $1,328,892 remain available for sale (the “Shares”). The Shares are being offered and sold by the sales agent named in, and pursuant to, the At the Market Offering Agreement, dated April 27, 2020, between the Company and such sales agent. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended.

 

In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement, including the Base Prospectus, (ii) the Prospectus Supplement, as supplemented and amended by the Supplement, (iii) a specimen certificate representing the Shares, (iv) the Amended and Restated Certificate of Incorporation of the Company, as currently in effect, (v) the Bylaws of the Company, as currently in effect, and (vi) certain resolutions adopted by the Board of Directors of the Company with respect to the issuance of the Shares. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and others, and such other documents, certificates and records, as we have deemed necessary or appropriate as a basis for the opinion set forth herein. 

 

 

 

In our examination, we have assumed and have not verified (i) the legal capacity of all natural persons, (ii) the genuineness of all signatures (other than persons signing on behalf of the Company), (iii) the authenticity of all documents submitted to us as originals, (iv) the conformity with the originals of all documents supplied to us as copies, (v) the accuracy and completeness of all corporate records and documents made available to us by the Company, and (vi) that the foregoing documents, in the form submitted to us for our review, have not been altered or amended in any respect material to our opinion stated herein.

 

The opinion letter which we render herein is limited to those matters governed by the laws of the State of Delaware as of the date hereof. Our opinions expressed herein are as of the date hereof, and we assume no obligation to revise or supplement the opinions rendered herein should the above-referenced laws be changed by legislative or regulatory action, judicial decision or otherwise. We express no opinion as to whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof.

 

For purposes of the opinion set forth below, we have assumed that the Shares will be issued within the parameters established by the Company’s Board of Directors (or a duly authorized committee of the Company’s Board of Directors), including, but not limited to, the number of Shares issued, the minimum prices the Shares are sold for, and the timing of the issuance of Shares (the “Approval”). We have further assumed that the Approval will not authorize the sale of any number of Shares that exceeds the Company’s authorized shares that are available for issuance. For purposes of the opinion set forth below, we refer to the following as “Future Approval and Issuance”: (a) the Approval and (b) the issuance of the Shares in accordance with the Approval and the receipt by the Company of the consideration (which shall not be less than the par value of such Shares) to be paid in accordance with the Approval.

 

Based upon and subject to the foregoing, we are of the opinion that, upon Future Approval and Issuance, the Shares will be duly authorized, validly issued, fully paid and non-assessable.

 

This opinion letter is provided for use solely in connection with the offer and sale of the Shares while the Registration Statement remains effective, and may not be used, circulated, quoted or otherwise relied upon for any other purpose without our express written consent. No opinion may be implied or inferred beyond the opinion expressly stated herein in the paragraph above.

 

We hereby consent to your filing of this opinion with the U.S. Securities and Exchange Commission as an exhibit to a Current Report on Form 8-K to be incorporated by reference in the Registration Statement and to the use of our name under the caption “Legal Matters” in the Prospectus contained therein.   In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC adopted under the Securities Act.     

 

 

  

Very truly yours,

  

  

  

 

/s/ Squire Patton Boggs (US) LLP

 

Squire Patton Boggs (US) LLP