0001193125-17-002051.txt : 20170105 0001193125-17-002051.hdr.sgml : 20170105 20170104185302 ACCESSION NUMBER: 0001193125-17-002051 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20170105 DATE AS OF CHANGE: 20170104 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PROVECTUS BIOPHARMACEUTICALS, INC. CENTRAL INDEX KEY: 0000315545 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 900031917 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-32172 FILM NUMBER: 17507875 BUSINESS ADDRESS: STREET 1: 7327 OAK RIDGE HWY STREET 2: SUITE B CITY: KNOXVILLE STATE: TN ZIP: 37931 BUSINESS PHONE: 865-769-4011 MAIL ADDRESS: STREET 1: 7327 OAK RIDGE HWY STREET 2: SUITE B CITY: KNOXVILLE STATE: TN ZIP: 37931 FORMER COMPANY: FORMER CONFORMED NAME: PROVECTUS PHARMACEUTICALS INC DATE OF NAME CHANGE: 20020417 FORMER COMPANY: FORMER CONFORMED NAME: ZAMAGE DIGITAL IMAGING INC DATE OF NAME CHANGE: 20011126 FORMER COMPANY: FORMER CONFORMED NAME: SPM GROUP INC DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CULPEPPER PETER R CENTRAL INDEX KEY: 0001281041 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: 7327 OAK RIDGE HWY STREET 2: SUITE A CITY: OAK RIGE STATE: TN ZIP: 37931 SC 13D 1 d281989dsc13d.htm SC 13D SC 13D

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No.     )

 

 

Provectus Biopharmaceuticals, Inc.

(Name of Issuer)

Common Stock, par value $0.001 per share

(Title of Class of Securities)

74373F100

(CUSIP Number)

 

Peter R. Culpepper

P.O. Box 32429

Knoxville, TN 37930

(865) 604-0657

 

with copies to:

 

David W. Bernstein, Esq.

Goodwin Procter LLP

The New York Times Building

620 Eighth Avenue

New York, NY 10018

(212) 813-8808

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

January 3, 2017

(Date of Event Which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box  ☐.

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.

 

 

(Continued on following pages)

 

 

 


CUSIP No. 74373F100  

 

  1   

Name of Reporting Persons

 

Peter R. Culpepper

  2  

Check the Appropriate Box if a Member of a Group*

(a)  ☐        (b)  ☐

 

  3  

SEC Use Only

 

  4  

Source of Funds*

 

PF

  5  

Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  ☐

 

  6  

Citizenship or Place of Organization

 

United States

Number of

Shares

Beneficially

Owned by

Each

Reporting

Person

With

 

     7    

Sole Voting Power

 

3,474,998

     8   

Shared Voting Power

 

0

     9   

Sole Dispositive Power

 

3,474,998

   10   

Shared Dispositive Power

 

0

11  

Aggregate Amount Beneficially Owned by Each Reporting Person

 

3,474,998

12  

Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*  ☐

 

13  

Percent of Class Represented by Amount in Row (11)

 

1.4%

14  

Type of Reporting Person*

 

IN

 

 

* SEE INSTRUCTIONS BEFORE FILLING OUT!


Item 1. Security and Issuer

This statement on Schedule 13D (this “Statement”) relates to common stock, par value $0.001 per share (“Common Stock”), of Provectus Biopharmaceuticals, Inc. (the “Issuer”). The address of the principal executive officer of the Issuer is: 7327 Oak Ridge Highway, Suite A, Knoxville, Tennessee 37931.

 

Item 2. Identity and Background

a) This Statement is filed by Peter R. Culpepper (“Culpepper”).

b) The residence of Culpepper is 9700 Collier Pass Lane, Knoxville, Tennessee 37922.

c) Culpepper is self-employed.

d), e) During the last five years, Culpepper has not been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

f) Culpepper is a citizen of the United States.

 

Item 3. Source and Amount of Funds or Other Consideration

Culpepper is deemed to beneficially own certain shares of Common Stock of the Issuer as reflected in this Statement. The consideration used to acquire beneficial ownership of the shares of Common Stock of the Issuer consisted solely of personal funds.

 

Item 4. Purpose of Transaction

Until December 28, 2016, Culpepper was an officer of the Issuer. Culpepper acquired his shares of the Issuer while he was an officer of the Issuer under incentive plans and otherwise, without any intention of taking action with regard to an extraordinary transaction, other than participating as an officer of the Issuer in transactions approved by the Issuer’s board of directors (the “Board”), and without any intention of seeking to cause a change in the Board or management of the Issuer, other than through recommendations he made to the Board during 2016 in his capacity as an officer of the Issuer.

On December 28, 2016, the Board terminated Culpepper as an officer of the Issuer, purportedly for cause. On January 3, 2017, Culpepper sent the Board a letter in which he stated that by abruptly terminating his involvement with the Issuer while the Issuer was in the process of seeking financing it needs to be able to continue its efforts to obtain approval from the United States Food and Drug Administration (“FDA”) of its two prescription drug candidates and at a time when he was deeply involved in discussions with major pharmaceutical companies regarding production and marketing of one of those prescription drug candidates when it is approved by the FDA, without anybody to replace him in either of those endeavors, the Board is putting the business of the Issuer in severe jeopardy. A copy of that letter is attached as Exhibit 1 to this Statement.

Culpepper believes that at least the current non-officer members of the Board should be replaced with people who have the background to be able to understand what the Issuer is required to do in order to get its prescription drug candidates approved and brought to market, and who will be willing to devote time and effort to overseeing the business endeavors of the Issuer. In addition, the Issuer must address its need for financial support to continue its efforts to obtain approval of its prescription drug candidates.


Culpepper may seek to cause the current directors of the Issuer to be replaced, may seek to cause the Issuer’s capital to be restructured in order to enhance the ability of the Issuer to obtain the financing it requires, may seek to identify purchasers for the Issuer or substantial interests in the Issuer, and may take other steps intended to maximize the likelihood that the Issuer’s prescription drug candidates will be approved and brought to market and otherwise maximize the Issuer’s value. Culpepper may himself participate in providing financing to the Issuer or in efforts to acquire the Issuer or substantial interests in it, and Culpepper may seek to be reinstated as a senior officer of the Issuer.

 

Item 5. Interest in Securities of the Issuer

a), b) As of the date of this Statement, Culpepper beneficially owns, has the sole power to vote, and has sole dispositive power over, the number of shares of Common Stock listed below, representing approximately the percentage of shares of Common Stock of the Issuer outstanding as of November 4, 2016, identified below. As reported by the Issuer, there were approximately 243,895,352 shares of Common Stock outstanding as of November 4, 2016.

 

     Total Shares     

Percentage

of Total

Outstanding

   

Sole Voting

Power

    

Sole

Dispositive

Power

    

Shared

Voting Power

    

Shared

Dispositive

Power

 

Peter R. Culpepper (1)

     3,474,998         1.4     3,474,998         3,474,998         

 

(1) Culpepper’s beneficial ownership includes 296,503 shares of Common Stock held in a 401(k) plan, 1,500,000 shares of Common Stock subject to options which are exercisable within 60 days and 266,666 shares of Common Stock issuable upon the exercise of warrants. Culpepper pledged 1,000,000 shares of his Common Stock pursuant to a Stock Pledge Agreement, dated October 3, 2014, between Culpepper and the Issuer in order to secure Culpepper’s obligations under a Stipulated Settlement Agreement and Mutual Release between the Issuer and Culpepper, dated June 6, 2014.

c) Culpepper has not effected any transactions involving shares of Common Stock of the Issuer during the past 60 days.


d) Not applicable.

e) Culpepper is the beneficial owner of less than 5% of the outstanding shares of Common Stock of the Issuer.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Not applicable.

 

Item 7. Material to be Filed as Exhibits

Exhibit 99.1 — Letter dated January 3, 2017


SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Dated: January 4, 2017     By:  

/s/ Peter S. Culpepper

      Peter R. Culpepper
EX-99.1 2 d281989dex991.htm EX-99.1 EX-99.1

Exhibit 99.1

Peter R. Culpepper

PO Box 32429

Knoxville, TN 37930

January 3, 2017

Board of Directors

Provectus Biopharmaceuticals, Inc.

7327 Oak Ridge Highway

Knoxville, TN 37931

RE: Notice of Termination

Gentlemen:

This letter is to respond to the letter dated December 28, 2016 from Alfred E. Smith IV (the “December 28 Letter”) purporting to terminate me “for Cause” from positions I hold as an officer of Provectus Biopharmaceuticals, Inc. (“Provectus”) and demanding payment of sums claimed to be due because of the termination of my employment or otherwise.

Initially, I repeat what I said in the email I sent to Mr. Smith on the morning of December 28 shortly after I received the December 28 Letter:

 

    The allegations of Cause in the December 28 Letter are entirely incorrect.

 

    By abruptly terminating my involvement with Provectus at a time when Provectus is in the process of seeking financing it needs to be able to continue its efforts to obtain FDA approval of its two prescription drug candidates PV-10 and PH-10 and at a time when I have been deeply involved in discussions with major pharmaceutical companies regarding production and marketing of PV-10 when it is approved by the FDA, without anybody to replace me in either of those endeavors, Provectus’ Board of Directors is putting Provectus in severe jeopardy.

Because my employment was terminated by Provectus on December 28, 2016 without Cause,

 

  1. Under Section 6 (b) of the Amended and Restated Executive Employment Agreement dated April 28, 2014 between Provectus and me (my “Employment Agreement”), I am entitled to an amount equal to my Base Salary ($500,000 per year) for a period of 24 months, of which my Base Salary through the end of 2016 was to be paid in accordance with Provectus’ regular payroll practices and the remainder is to be paid to me in one lump sum in January 2017.

 

  2. There has been no effect on my obligations under the June 6, 2014 Settlement Agreement. The sum I am required to pay continues to be $1,120,000, minus the $433,333 I have already paid, with $166,667 remaining due by October 3, 2017, with regard to the current year.


The December 28 Letter says the decision to terminate my employment was based upon the provisions set forth in subsections (iv) and (v) of the definition of “for Cause” in Section 5(d) of my Employment Agreement. Subsection (iv) relates to my “willfully or recklessly refusing to perform material duties reasonably assigned to [me] by the Company’s Board.” I am not aware of any instance in which I failed to perform any duties assigned to me by the Company’s Board. Indeed, the Board never assigned me or any of the other officers of Provectus any duties or otherwise became involved in what I or any of the other officers did with regard to Provectus’ activities. Certainly, except for an incorrect belief that I was responsible for monitoring expense accounts, nobody on the Board ever told me the Board, or any Board member, felt I was not fully and adequately performing my duties as an officer of Provectus.

Subsection (v) relates to my “continued willful or gross malfeasance or nonfeasance of the material duties assigned to [me] by the Company’s Board.” As I noted in the preceding paragraph, the Board never assigned me or any of the other officers any duties. And no instance has ever been called to my attention in which the Board asserted I had been involved in malfeasance or nonfeasance of duties assigned to me by the Board, nor could it, because the non-officer members of the Board never asked or knew what I had, and what I had not, undertaken to do. Indeed, even the December 28 Letter incorrectly says I was being terminated as Chief Accounting Officer, a position I never held. And with regard to travel advances to Craig Dees, Provectus’ internal controls specifically stated that I did not have the authority to authorize any expenses, which includes travel expenses incurred by Craig Dees or other Provectus employees.

The December 28 Letter goes on to state that Soldinger & Associates are of the opinion that I owe Provectus $294,255. That is a grossly incorrect assertion. In late October 2016, Soldinger provided me a schedule showing instances in which it believed I had received credit on my American Express card for airplane tickets or other items that had been purchased for trips that were cancelled and had failed to pass those credits through to Provectus. The assertion surprised me, because it was my practice annually to reconcile all expenses I had incurred and reimbursements I had received, and my most recent reconciliation, which was for 2015, showed a small balance due to me from Provectus. Nonetheless, while I was able to reconcile many of the discrepancies pointed to by Soldinger, and in mid-November I provided Soldinger with 18 spread sheets showing the reconciliations, I was unable to locate credits to Provectus with regard to approximately $39,000 of 2015 and prior year items. This was a relatively small amount considering that I travelled a great deal, and incurred hundreds of thousands of dollars per year of travel expenses in 2015 and the preceding years. Nonetheless, I told Soldinger that unless I was able to reconcile the remaining approximately $39,000, I would credit that sum against the next reimbursable expenses I incur. I have subsequently applied approximately $28,000 against expenses for which I was entitled to reimbursement, and will be applying the remaining approximately $11,000 against expenses shown on an expense report I will be submitting shortly.

I am aware that Soldinger questioned reimbursement I received for foreign currency I used to pay for meals which I hosted at restaurants in foreign countries for which I paid cash, because the restaurants would not accept American Express cards, and my only credit card is an American Express card. I did not get receipts for these restaurant charges (although I have detailed emails and written notes regarding these and related travel and entertainment expenses), and therefore could not prove the exact amounts I spent. However, I pointed out to

 

2


Soldinger that I had spent 51 days on business trips to foreign countries in 2015, but had charged only 5 meals on my American Express card, and I had spent 34 days on business trips to foreign countries in 2014, but had charged only four meals on my American Express card. Since it was my practice to pay for lunches and dinners at which I entertained prospective investors or prospective production or distribution partners, I obviously spent a great deal of foreign currency paying for meals while I was out of the United States.

When I sent the information described above to Soldinger, I suggested that somebody come to Provectus’ offices to go over with me my backup for my reconciliations. However, I never heard back from anybody at the Soldinger firm.

At least as troubling as the unfair and unsupportable assertions made against me is the fact that the Board acted abruptly, right in the middle of a financing effort, without speaking with me about the status of my conversations with potential production or distribution partners, and without anybody who could carry on those conversations.

Unfortunately, that is not surprising. The non-officer directors have through the years shown little or no interest in Provectus’ business. Although Kelly McMasters has been a director since 2008, Alfred Smith IV has been a director since 2011 and Jan Koe has been a director since 2012, in all the years until Craig Dees resigned as CEO in February 2016, there had been only one Board meeting, either in person or by telephone. All other Board action was taken by written consent. The non-officer directors either had never met Craig Dees, who was Provectus’ CEO from its founding until February 2016, or had met him only at that single Board meeting. Only one of the three non-officer directors had ever been to our offices, and that director came only for a late evening visit as he was passing through Knoxville. If it had not been for reports I gave individually to directors from time to time, they would not have known anything about what was happening at Provectus. And only one of the three non-officer directors owns any stock of Provectus. I have been urging the Board since Craig Dees resigned as CEO in February 2016 to add a new CEO who has medical or scientific knowledge and additional directors who have the background to be able to understand what Provectus has to do to get PV-10 and PH-10 approved and brought to market.

I will be happy to meet with the directors both to discuss the unfounded claim that there was Cause for termination of my employment and to discuss a change in corporate governance that may permit Provectus to raise the funds it needs to continue in existence and to take advantage of what I and many other people believe is a major scientific breakthrough. I have an important role to play in the future of Provectus, and currently there is nobody else who can do what I have been doing. It would be most unfortunate if the Provectus Board prevented me from completing the tasks I have undertaken.

Very truly yours,

Peter Culpepper

 

Cc: Jan E. Koe

Kelly M. McMasters

Timothy C. Scott

Alfred E. Smith IV

Eric A. Wachter

 

3