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 Report (Date of earliest event reported): June 17,
2021
PROVECTUS
BIOPHARMACEUTICALS, INC.
(Exact
name of registrant as specified in charter)
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Delaware |
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001-36457 |
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90-0031917 |
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(State
or other jurisdiction |
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(Commission |
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(IRS
Employer |
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of
incorporation) |
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File
Number) |
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Identification
No.) |
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10025
Investment Drive, Suite 250, Knoxville,
Tennessee
37932
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(Address
of Principal Executive Offices) (Zip Code) |
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(866)
594-5999 |
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(Registrant’s
Telephone Number, Including Area Code) |
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N/A
(Former
Name or Former Address, if Changed Since Last Report.)
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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):
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[ ] |
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425) |
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| [ ] |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12) |
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| [ ] |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b)) |
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| [ ] |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act: None
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Title
of each class |
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Trading
Symbol(s) |
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Name
of each exchange on which registered |
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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.
[ ]
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Item
3.02 |
Unregistered
Sales of Equity Securities. |
As
previously reported, Provectus Biopharmaceuticals, Inc. (the
“Company”) issued secured convertible promissory notes pursuant to
a definitive financing term sheet dated March 19, 2017 (the “2017
Notes”) and a definitive financing term sheet dated December 31,
2019 (the “2020 Notes”). The 2017 Notes originally provided that
they were convertible into a new class of the Company’s preferred
stock, $0.001 par value per share (“Preferred Stock”), at a price
per share equal to $0.2862 (the “Original Conversion Price”), which
would be convertible into one share (the “Original Conversion
Ratio”) of the Company’s common stock, $0.001 par value per share
(“Common Stock”).
In
order to ensure that the Company had sufficient authorized shares
of Preferred Stock into which the 2017 Notes would convert, yet
keep the economic terms of the 2017 Notes substantially equivalent,
the Company entered into amendments (the “Amendments”) to the 2017
Notes (as amended, the “Amended 2017 Notes”) with a large majority
of the holders of 2017 Notes to increase the conversion price by 10
times to $2.862 (the “New Conversion Price”) and to provide that
one share of Preferred Stock would be convertible into 10 shares of
Common Stock (the “New Conversion Ratio”). The 2020 Notes had
substantially similar terms to the Amended 2017 Notes, including
being convertible into Preferred Stock at the New Conversion Price,
with the Preferred Stock being convertible into Common Stock at the
New Conversion Ratio.
In
order to (i) address the fact that a small minority of the holders
of 2017 Notes did not execute the Amendments and (ii) ensure
economic fairness for all of the holders of the 2017 Notes and 2020
Notes, the Company designated two separate classes of Preferred
Stock into which the 2017 Notes and 2020 Notes would convert: (i)
the Company’s Series D Convertible Preferred Stock, par value
$0.001 per share (the “Series D Convertible Preferred Stock”), was
designated for the holders of 2017 Notes who did not execute the
Amendments and (ii) the Company’s Series D-1 Convertible Preferred
Stock, par value $0.001 per share (the “Series D-1 Convertible
Preferred Stock”), was designated for the holders of Amended 2017
Notes (i.e., who did execute the Amendments) and the holders of the
2020 Notes.
On
June 20, 2021, all of the outstanding 2017 Notes converted into
12,373,243 shares of Series D Convertible Preferred Stock at the
Original Conversion Price, and all of the outstanding Amended 2017
Notes and outstanding 2020 Notes converted into 9,440,551 shares of
Series D-1 Convertible Preferred Stock at the New Conversion
Price.
The
Company believes the issuance of the securities was exempt from the
registration requirements of the Securities Act of 1933, as amended
(the “Securities Act”), by virtue of Section 4(a)(2) of the
Securities Act as transactions not involving a public
offering.
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Item
5.03. |
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year. |
The
rights, preferences and privileges of the Series D Convertible
Preferred Stock are set forth in a Certificate of Designation of
Preferences, Rights and Limitations of Series D Convertible
Preferred Stock (the “Series D Certificate of Designation”), a copy
of which is attached as Exhibit 3.1 to this Current Report on Form
8-K. The rights, preferences and privileges of the Series D-1
Convertible Preferred Stock are set forth in a Certificate of
Designation of Preferences, Rights and Limitations of Series D-1
Convertible Preferred Stock (the “Series D-1 Certificate of
Designation”), a copy of which is attached as Exhibit 3.2 to this
Current Report on Form 8-K.
The
Board of Directors of the Company approved each of the Series D
Certificate of Designation and Series D-1 Certificate of
Designation on June 16, 2021, and each of the Series D Certificate
of Designation and Series D-1 Certificate of Designation were filed
with the Delaware Secretary of State on June 17, 2021. The Series D
Certificate of Designation and Series D-1 Certificate of
Designation are the same, other than certain key differences to
account solely for the different conversion ratios for the holders
of 2017 Notes who did not execute an Amendment compared to the
holders of Amended 2017 Notes and the holders of 2020
Notes.
Number
of Shares
The
Series D Certificate of Designation established and designated
12,374,000 shares of Series D Convertible Preferred Stock. The
Series D-1 Certificate of Designation established and designated
9,441,000 shares of Series D-1 Convertible Preferred
Stock.
Rank
The
Series D Convertible Preferred Stock and the Series D-1 Convertible
Preferred Stock rank pari passu with each other. The Series
D Convertible Preferred Stock and Series D-1 Convertible Preferred
Stock rank senior to the Common Stock and any other class or series
of the Company’s capital stock, the terms of which do not provide
that shares of such class rank senior to, or pari passu
with, the Series D Convertible Preferred Stock and Series D-1
Convertible Preferred Stock as to dividends and distributions upon
a change of control transaction, or the liquidation, winding-up and
dissolution of the Company.
Dividends
The
Series D Convertible Preferred Stock and Series D-1 Convertible
Preferred Stock do not have any dividend preference but are
entitled to receive, on a pari passu basis, dividends, if
any, that are declared and paid on the Common Stock and any other
class of the Company’s capital stock that ranks junior or on par to
the Series D Convertible Preferred Stock and Series D-1 Convertible
Preferred Stock.
Liquidation
Preference
Upon
the occurrence of the liquidation, winding-up or dissolution of the
Company or certain mergers, corporate reorganizations or sales of
the Company’s assets (each, a “Company Event”), holders of Series D
Convertible Preferred Stock and Series D-1 Convertible Preferred
Stock will be entitled to receive a liquidation preference before
any distributions are made to holders of any other class or series
of the Company’s capital stock junior to the Series D Convertible
Preferred Stock and Series D-1 Convertible Preferred Stock. If a
Company Event occurs within two years of June 20, 2021 (the “Date
of Issuance”), the holders of Series D Convertible Preferred Stock
and Series D-1 Convertible Preferred Stock will receive for each
share of Series D Convertible Preferred Stock and Series D-1
Convertible Preferred Stock, respectively, an amount in cash equal
to the Original Issue Price (as defined in the Series D Certificate
of Designation and Series D-1 Certificate of Designation,
respectively) multiplied by four. If a Company Event occurs from
and after the second anniversary of the Date of Issuance, the
holders of Series D Convertible Preferred Stock and Series D-1
Convertible Preferred Stock will receive for each share of Series D
Convertible Preferred Stock and Series D-1 Convertible Preferred
Stock, respectively, an amount in cash equal to the Original Issue
Price multiplied by six. The Original Issue Price for the Series D
Convertible Preferred Stock is $0.2862, and the Original Issue
Price for the Series D-1 Convertible Preferred Stock is
$2.862.
Voting
Rights
Holders
of shares of Series D Convertible Preferred Stock and Series D-1
Convertible Preferred Stock will vote together with the holders of
Common Stock as a single class. Each share of Series D Convertible
Preferred Stock carries the right to one vote per share. Each share
of Series D-1 Convertible Preferred Stock carries the right to 10
votes per share.
The
Company is not permitted to amend, alter or repeal its Certificate
of Incorporation or Bylaws in a manner adverse to the relative
rights, preferences, qualifications, limitations or restrictions of
the Series D Convertible Preferred Stock and Series D-1 Convertible
Preferred Stock without the affirmative vote of a majority of the
votes entitled to be cast by holders of outstanding shares of
Series D Convertible Preferred Stock and Series D-1 Convertible
Preferred Stock, voting together as a single class with each share
of Series D Convertible Preferred Stock and Series D-1 Convertible
Preferred Stock having a number of votes equal to the number of
shares of Common Stock then issuable upon conversion of such share
of Series D Convertible Preferred Stock and Series D-1 Convertible
Preferred Stock.
Conversion
The
Series D Convertible Preferred Stock is convertible at the option
of the holders thereof into shares of Common Stock based on a
one-for-one conversion ratio. The Series D-1 Convertible Preferred
Stock is convertible at the option of the holders thereof into
shares of Common Stock based on a one-for-10 conversion ratio. The
conversion ratio of the Series D Convertible Preferred Stock and
Series D-1 Convertible Preferred Stock is subject to adjustment for
stock splits and combinations, recapitalizations,
reclassifications, reorganizations, mergers and consolidations. The
Series D Convertible Preferred Stock and Series D-1 Convertible
Preferred Stock will automatically convert into shares of Common
Stock upon the fifth anniversary of the Date of
Issuance.
The
foregoing description of the Series D Certificate of Designation
and Series D-1 Certificate of Designation does not purport to be
complete and is qualified in its entirety by reference to the
Series D Certificate of Designation and Series D-1 Certificate of
Designation, copies of which are filed herewith as Exhibits 3.1 and
3.2, respectively, and incorporated herein by reference.
|
Item
9.01. |
Financial
Statements and Exhibits. |
(d)
Exhibits.
SIGNATURE
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.
Date:
June 24, 2021
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PROVECTUS BIOPHARMACEUTICALS, INC. |
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By: |
/s/ Heather
Raines |
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Heather Raines |
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Chief Financial Officer (Principal Financial Officer) |
Provectus Biopharmaceuti... (QB) (USOTC:PVCT)
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