May 1, 2014

Preparing to list (launch)

On Wednesday, April 30th, Provectus made a number of SEC filings, which you may find here. In the order filed:

1. DEF 14A, the final proxy statement. A final version of the preliminary proxy statement the company filed about two weeks ago. Management is seeking approval at the June 16th annual meeting of:
  • Its slate of board of directors,
  • An increase in the authorized number of common stock share from 250 million to 300 million,
  • A new (2014) equity compensation plan,
  • Executive compensation, and
  • BDO USA as the company's auditor.
I will blog my thoughts and voting intentions later this month.

2. 8-K, a material event. Provectus entered into new employment agreements with each principal/executive officer: Craig (CEO), Tim Scott (President), Eric (CTO) and Peter (CFO/COO). These were first outlined in the preliminary proxy statement. The agreements provide for (i) a five-year term, subject to automatic renewal for successive one-year periods, (ii) an annual gross salary of $500,000; (iii) eligibility for salary increases, annual bonuses and annual equity incentive awards as determined by the compensation committee in its sole discretion, and (iv) non-competition, non-solicitation and confidentiality obligations.

3. 424B3, a prospectus supplement (to the prospectus dated April 16, 2013, and filed pursuant to Rule 424(b)(3)). This prospectus is associated with the Controlled Equity Offering sales agreement with Cantor Fitzgerald & Co. ("Cantor") (see 5 and 6 below).

4. 8-A12G, Registration of Certain Classes of Securities. Also, I imagine, related to Provectus' agreement with Cantor.
  • Useful to know, a (supermajority) voting threshold: " least 66-2/3% of the voting power of the then-outstanding shares of the capital stock of the Registrant entitled to vote generally in the election of directors, voting together as a single class." The question for me is to what other provisions does it extend.
  • A typo, perhaps: "On April 17, 2014, the Registrant’s board of directors approved by unanimous written consent an amendment to the Registrant’s certificate of incorporation to increase the authorized number of shares of common stock from 275 Million to 300 Million." I thought the proposal, per the preliminary and final proxy statements, was "...approve and adopt an amendment to our Certificate of Incorporation to increase the number of shares of common stock, par value $.001 per share, that we are authorized to issue from 250,000,000 to 300,000,000 shares..."
Update 5/1/14: According to Peter, it is not a typo, but it is not in effect until shareholders approve it, and just authorization to allow for the relevant proxy filing proposal.
5. 424B5, a prospectus supplement (to the prospectus dated July 20, 2012, filed pursuant to Rule 424(b)(5), and related to this series of filings). Provectus entered into a Cantor branded, $50 million "Controlled Equity Offering" sales agreement, or an at-the-market ("ATM") offering. Adam Feuerstein provided comments about these offerings in a July 2012 article. While I have yet to complete my review of the Cantor agreement, the company entered into similar arrangements (but with at least one noticeable difference, the then counter parties were would-be purchasers of stock rather than agents in the case of Cantor) with Lincoln Park Capital in December 2010 and Alpha Capital Anstalt in July 2013. Provectus did not draw down on these $30 million facilities in the past; however, the share price rarely if ever exceeded their $0.75 price threshold.

This new Cantor facility, larger than prior ones as it is, could be helpful in providing less dilutive financing (common stock), should management elect to use it, than their fund raising manner of choice (or lack thereof) over the last several years (common stock plus generous warrant coverage) from their fund raisers of choice (Network 1, Maxim Group). It also should be cheaper: 3% to Cantor vs. >10-13% to Network 1. As for stealth dilution criticisms of ATMs ("Companies are under no obligation to disclose the sale of stock through ATMs except in customary regulatory filings at the end of each quarter or fiscal year."), it will be interesting to monitor if management's disclosure behavior in this regard changes in the future. Provectus historically has been transparent in its dilution of shareholders, typically making necessary filings (material or immaterial) swiftly, and not just merely in filings at the end of each fiscal quarter or year.

6. 8-K, a material event. Provectus entered into the above mentioned equity offering sales agreement with Cantor, and noted it also filed an application (on January 23rd) to list on the NYSE MKT. I am struck by the date of the application, on which, after two days closing above $3 per share ($3.99 on the 21st and $5.22 on the 22nd), the share price reached a intraday high of $6.03 before closing at $1.87. At the time I was of the belief the company was prepared, ready and paid up, 5 days above $3 pending, to list on the NASDAQ. Thwarted, management apparently quickly reached for and installed its back-up plan/Plan B (NYSE MKT) that shortly could turn into Plan A.

Three months later, presumably after considerable documentation provision to and other due diligence by NYSE Euronext, Provectus may soon up-list. By doing so the company would shed, after twelve years almost to the day, the vestiges of its OTC existence (e.g., a reverse merger into a public shell, a minor exchange, Network 1, Maxim Group, etc.) and hopefully put the bad and ugly but not the good behind it to begin and end life on a major stock exchange (e.g., Roberti+White, Cantor, breakthrough therapy designation, ASCO, etc.).

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