UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 1 )
Provectus Biopharmaceuticals, Inc.
(Name of Issuer)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
74373F100
(CUSIP Number)
with copies to:
| Peter R. Culpepper P.O. Box 32429 Knoxville, TN 37930 (865) 604-0657 |
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 26, 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 Amendment No. 1 to a 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. This Schedule 13D/A is being filed to amend Items 4 and 7.
| Item 4. | Purpose of Transaction |
Item 4 of this Schedule 13D is amended so that, as amended, it states the following:
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.
On January 26, 2017, Culpepper sent a letter notifying the Secretary of Provectus that Culpepper proposes to nominate Charles Littlejohn, Courtlandt G. Miller, Scott Palmer, Calvin Wallen III and himself for election at the 2017 annual meeting of stockholders of the Issuer to serve as directors of the Issuer. The notice was sent in order to meet an advance notice requirement of the Issuer’s bylaws. A copy of the letter to the Secretary of Provectus is attached as Exhibit 2 to this Statement.
Culpepper has discussed with potential participants a possible offer to purchase securities of the Issuer in order to provide funds which Culpepper believes the Issuer requires. However, no offer has been made, and it is possible that no offer ever will be made.
Even if Culpepper does not participate in an offer to purchase securities of the Issuer, Culpepper may, in addition to seeking to replace the current directors of the Company, seek to cause the Issuer’s capital to be restructured, seek to identify purchasers for the Issuer or substantial interests in the Issuer, seek to cause the Issuer to hire a new Chief Executive Officer and seek to be reinstated as a senior officer of the Issuer.
| Item 7. | Material to be Filed as Exhibits |
Exhibit 1 — Letter dated January 3, 2017 (previously filed)
Exhibit 2 – Letter dated January 26, 2017 (filed with this Amendment)
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 26, 2017 | By: | /s/ Peter R. Culpepper | ||||
| Peter R. Culpepper |
Peter R. Culpepper
P.O. Box 32429
Knoxville, Tennessee 37930
January 26, 2017
Secretary
Provectus Biopharmaceuticals, Inc.
7327 Oak Ridge Hwy.
Knoxville, Tennessee 37931
Dear Sir or Madam:
My name is Peter R. Culpepper. My address as it appears on the books of Provectus Biopharmaceuticals, Inc. (the “Corporation”) is P.O. Box 32429, Knoxville, Tennessee 37930. My home address is 9700 ColIier Pass Lane, Knoxville, Tennessee 37922. I own of record and beneficially 1,411,829 shares of common stock of the Corporation (“Common Stock”). In addition, I am the beneficial owner of 296,503 shares of Common Stock held in the Corporation’s 401(k) plan, I hold options to purchase 1,500,000 shares of Common Stock that are exercisable within 60 days (of which the Corporation has stated in a filing with the SEC options to purchase 400,000 shares terminated because of the termination of my employment with the Corporation) and I hold warrants entitling me to purchase 266,666 shares of Common Stock.
This is to notify you that I propose to nominate the following persons for election at the 2017 annual meeting of stockholders to serve as directors of the Corporation:
Peter R. Culpepper
Charles Littlejohn
Courtlandt G. Miller
Scott Palmer
Calvin A. Wallen III
Enclosed as Exhibits 1 through 5 to this letter is all the information about each of the proposed nominees that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended. Also enclosed is a written consent of each of the proposed nominees to being named in a proxy statement as a nominee and to serving as a director if elected.
There is no arrangement or understanding between me and any of the proposed nominees pursuant to which the nominations are being made by me, other than the consents described in the preceding paragraph.
It is my intention that, unless the persons listed above, or other persons I believe would be suitable directors of the Corporation, are the nominees of the Board of Directors for election at the 2017 annual meeting of stockholders as directors of the Corporation, I will deliver a proxy statement and form of proxy to the holders of all the outstanding common stock of the Corporation.
| Very truly yours, |
| Peter R. Culpepper |
Exhibit 1
Peter R. Culpepper. Mr. Culpepper is 57 years old. From February 16, 2004 until December 28, 2016, Mr. Culpepper was an executive officer of Provectus Biopharmaceuticals, Inc. (the “Corporation”). From February 16, 2004 until February 22, 2016, he held the positions of Chief Financial Officer and Chief Operating Officer. From February 22, 2016 until December 28, 2016, he held the positions of Interim Chief Executive Officer and Chief Operating Officer. Since December 28, 2016, Mr. Culpepper has not been employed.
While Mr. Culpepper was an employee of the Corporation, he received compensation and benefits as an employee. From July 1, 2013 until December 28, 2016, Mr. Culpepper was employed under an Executive Employment Agreement dated July 1, 2013, and an Amended and Restated Executive Employment Agreement dated as of April 28, 2014. The compensation he received is described in the Corporation’s proxy statement dated April 29, 2016 or is available from the records of the Corporation.
Mr. Culpepper and the other officers of the Corporation have been named as defendants in several derivative suits instituted by stockholders of the Corporation. These include suits brought by Glenn Kleba and Don B. Dale which were resolved by execution of a Stipulated Settlement Agreement and Mutual Release dated June 6, 2014 (the “Kleba Settlement Agreement”). Under the Kleba Settlement Agreement, Mr. Culpepper agreed to pay the Corporation $2,240,000, which would be reduced to $1,120,000 and would be payable in instalments if Mr. Culpepper remained employed by the Corporation until December 31, 2018 or his employment was terminated before that date without Cause, or with Good Reason, as those terms are defined in his Employment Agreement. Under the Kleba Settlement Agreement, Mr. Culpepper also agreed that the Corporation could rescind 50% of the stock options that Mr. Culpepper had been granted in 2010 and 2011, and agreed to pay a portion of the fees the Corporation was required to pay the plaintiffs’ counsel, to the extent they are not paid by insurance carriers.
On December 28, 2016, the Corporation sent a letter to Mr. Culpepper asserting that his employment had been terminated by the Corporation for Cause. That letter asserted that (a) under the Kleba Settlement Agreement, Mr. Culpepper was required to pay $2.24 million under the Settlement Agreement, less any payments he had already made, and (b) Mr. Culpepper owed the Corporation $294,255 with regard to travel expenses, and demanded payment of those amounts and reimbursement for attorneys and experts fees that had been incurred by the Corporation. In a subsequent letter, the Corporation asserted that because his employment had allegedly been terminated for Cause, $2,051,083 was immediately due and payable under the Kleba Settlement Agreement as of December 29, 2016.
In letters dated January 3, 2017 and January 23, 2017, Mr. Culpepper said there had not been Cause for the termination of his employment. He said that because of this, (a) the amount he is required to pay under the Settlement Agreement is $1,120,000 minus $433,333 already paid, with the next installment due by October 3, 2017, and (b) he is entitled under his Employment Agreement to receive two years’ base salary (a total of $1,000,000), payable during January 2017. Mr. Culpepper has demanded that the claims regarding his employment be submitted to
2
mediation, which if not successful is to be followed by arbitration, as required by his Employment Agreement. With regard to his travel expenses, Mr. Culpepper stated that he had provided reconciliations of all but approximately $39,000 of the reimbursements of hundreds of thousands of dollars per year of expenses incurred in 2015 and prior years. The approximately $39,000 has been repaid, primarily by credits against expense reimbursements owed to Mr. Culpepper by the Corporation.
There is no arrangement or understanding between Mr. Culpepper and any other person pursuant to which Mr. Culpepper is to be selected as a director or nominee.
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CONSENT TO BE NAMED IN
PROXY STATEMENT
I consent to be named in a proxy statement of Provectus Biopharmaceuticals, Inc. (the “Company”) relating to its 2017 Annual Meeting of Stockholders as a nominee for election to the Board of Directors of the Company. I further agree to serve as a director of the Company if I am elected.
| /s/ Peter R. Culpepper |
January 25, 2017
Exhibit 2
Charles Littlejohn. Mr. Littlejohn is 70 years old. Mr. Littlejohn has never held a position as a director or officer of Provectus Biopharmaceuticals, Inc. For more than five years, Mr. Littlejohn has been a self-employed private investor. There is no arrangement or understanding between Mr. Littlejohn and any other person pursuant to which Mr. Littlejohn is to be selected as a director or nominee.
CONSENT TO BE NAMED IN
PROXY STATEMENT
I consent to be named in a proxy statement of Provectus Biopharmaceuticals, Inc. (the “Company”) relating to its 2017 Annual Meeting of Stockholders as a nominee for election to the Board of Directors of the Company. I further agree to serve as a director of the Company if I am elected.
| /s/ Charles Littlejohn |
January 25, 2017
Exhibit 3
Courtlandt G. Miller. Mr. Miller is 65 years old. For more than five years, Mr. Miller has been the Chief Executive Officer and Chairman of the Board of Via Verde Limited, a renewable energy company focused on low cost, low maintenance wind energy generation solutions in urban environments, a Director and Secretary of Helios Coatings, Inc., an environmentally friendly metalized coatings company serving the automotive and food processing industries, a Director and the Secretary of EcoVolt Power Corporation, a company that offers longer lasting, low cost energy storage solutions for the automotive market, and the Chief Executive Officer of Folica Labs, LLC, a cosmetics company. Mr. Miller is a Director of Perry Baromedical, Inc, a leading manufacturer of hyperbaric oxygen therapy chambers and related products.
There is no arrangement or understanding between Mr. Miller and any other person pursuant to which Mr. Miller is to be selected as a director or nominee.
CONSENT TO BE NAMED IN PROXY STATEMENT
I consent to be named in a proxy statement of Provectus Biopharmaceuticals, Inc. (the “Company”) relating to its 2017 Annual Meeting of Stockholders as a nominee for election to the Board of Directors of the Company. I further agree to serve as a director of the Company if I am elected.
| /s/ Courtlandt G. Miller |
| Courtlandt G. Miller |
January 25, 2017
Exhibit 4
Scott Palmer. Dr. Palmer is 60 years old. Dr. Palmer has never held a position as a director or officer of Provectus Biopharmaceuticals, Inc. For more than five years, Mr. Palmer has been self-employed as a physician. There is no arrangement or understanding between Dr. Palmer and any other person pursuant to which Dr. Palmer is to be selected as a director or nominee.
CONSENT TO BE NAMED IN PROXY STATEMENT
I consent to be named in a proxy statement of Provectus Biopharmaceuticals, Inc. (the “Company”) relating to its 2017 Annual Meeting of Stockholders as a nominee for election to the Board of Directors of the Company. I further agree to serve as a director of the Company if I am elected.
| /s/ Scott Palmer |
| Scott Palmer |
January 25, 2017
Exhibit 5
Calvin A. Wallen III. Mr. Wallen is 62 years old. For more than five years, prior to March 1, 2016, Mr. Wallen was the Chief Executive Officer and President of Cubic Energy, Inc., an upstream oil and gas activity company. He continues to serve as the Chairman of the Board of Cubic Energy, Inc. In December 2015, Cubic Energy, Inc. commenced a proceeding under Chapter 11 of the Bankruptcy Code. For more than five years, Mr. Wallen has also been the President of Fossil Operating, Inc., an oil and gas operations company and of Pandale Holdings, a company he owns that holds interests in various companies, including Cardiovascular BioTherapeutics, Inc., of which Mr. Wallen has for more than five years been the Chairman of the Board of Directors.
There is no arrangement or understanding between Mr. Wallen and any other person pursuant to which Mr. Wallen is to be selected as a director or nominee.
CONSENT TO BE NAMED IN
PROXY STATEMENT
I consent to be named in a proxy statement of Provectus Biopharmaceuticals, Inc. (the “Company”) relating to its 2017 Annual Meeting of Stockholders as a nominee for election to the Board of Directors of the Company. I further agree to serve as a director of the Company if I am elected.
| /s/ Calvin A. Wallen III |
| Calvin A. Wallen III |
January 24, 2017