As filed with the Securities and Exchange Commission on October 1, 2003
Registration No. 333-_____
-------------------------------------------------------------------------------
Securities and Exchange Commission
Washington, DC 20549
Form S-8
Registration Statement
Under
The Securities Act of 1933
----------------------------------
Provectus Pharmaceuticals, Inc.
(Exact Name of Company as Specified in its Charter)
Nevada 90-0233011
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
7327 Oak Ridge Highway, Suite B
Knoxville, TN 37931
(Address of Principal Executive Offices, including Zip Code)
------------------------------------------------------------
Consultant Compensation Agreements
(Full Title of the Plans)
------------------------------------------------------------
with a copy to:
---------------
Timothy C. Scott, Ph.D. Wm. Gregory Hall, Jr., Esq.
President Baker, Donelson, Bearman & Caldwell, P.C.
Provectus Pharmaceuticals, Inc. 2200 Riverview Tower
7327 Oak Ridge Highway, Suite B 900 South Gay Street
Knoxville, TN 37931 Knoxville, TN 37902
865/769-4011 865/549-7000
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
-------------------------------------------------------------
Calculation of Registration Fee
----------------------------------------------------------------------------------------------------------------------------
Title of Proposed maximum
securities Amount offering Proposed maximum Amount of
to be to be price aggregate offering registration
registered registered per share (1) price (1) fee
----------------------------------------------------------------------------------------------------------------------------
Common shares, par value $.001 per share 300,000 shares $0.75 $225,000 $18.20
----------------------------------------------------------------------------------------------------------------------------
Part II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the U.S. Securities and
Exchange Commission (the "SEC") by Provectus Pharmaceuticals, Inc., a Nevada
corporation formerly known as Provectus Pharmaceutical, Inc. (the "Company"),
are incorporated by reference into this Registration Statement on Form S-8:
1. The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2002, as filed with the SEC on April 15, 2003;
2. The Company's Quarterly Report on Form 10-QSB for the fiscal quarter
ended March 31, 2003, as filed with the SEC on May 9, 2003;
3. The Company's Quarterly Report on Form 10-QSB for the fiscal quarter
ended June 30, 2003, as filed with the SEC on August 14, 2003;
4. The Company's Current Report on Form 8-K dated December 20, 2002, as
filed with the SEC on January 3, 2003, as amended by a filing on Form
8-K/A filed with the SEC on January 9, 2003;
5. The Company's Current Report on Form 8-K dated May 16, 2003, as filed
with the SEC on May 22, 2003;
6. The Company's Current Report on Form 8-K dated June 16, 2003, as filed
with the SEC on June 26, 2003; and
7. The description of the Company's common shares, par value $.001 per
share (the "Common Stock") contained in the Company's Registration
Statement on Form S-8 filed with the SEC on April 24, 2003 (File No.
333-86896), and any amendments and reports filed for the purpose of
updating that description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all the securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated into
this Registration Statement by reference and to be a part hereof from the date
of filing of such documents, other than the portions of such documents which by
statute, by designation in such documents or otherwise are not deemed to be
filed with the SEC or are not required to be incorporated herein by reference.
Any statement contained in documents incorporated or deemed to be
incorporated by reference into this Registration Statement shall be deemed to be
modified or superseded, for purposes of this Registration Statement, to the
extent that a statement contained in this Registration Statement, or in any
other subsequently filed document that is or is deemed to be incorporated by
reference into this Registration Statement, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
No response is required to this item.
Item 5. Interests of Named Experts and Counsel.
No response is required to this item.
II-1
Item 6. Indemnification of Directors and Officers.
Nevada law provides that a Nevada corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, other than an action by or in the right of the corporation (a
"non-derivative proceeding"), by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with the
action, suit or proceeding if he or she:
1. Is not liable under Section 78.138 of the Nevada Revised Statutes
("NRS 78.138") for breach of his or her fiduciary duties to the
corporation; or
2. Acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful.
In addition, a Nevada corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor (a "derivative proceeding") by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses, including amounts paid in settlement and
attorneys' fees actually and reasonably incurred by him or her in connection
with the defense or settlement of the action or suit if he:
1. Is not liable under NRS 78.138 for breach of his or her fiduciary
duties to the corporation; or
2. Acted in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the
corporation.
Under Nevada law, indemnification may not be made for any claim, issue or
matter as to which such a person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to the
corporation or for amounts paid in settlement to the corporation, unless and
only to the extent that the court in which the action or suit was brought or
other court of competent jurisdiction determines upon application that in view
of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
To the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any non-derivative
proceeding or any derivative proceeding, or in defense of any claim, issue or
matter therein, the corporation is obligated to indemnify him or her against
expenses, including attorneys' fees, actually and reasonably incurred in
connection with the defense.
Further, Nevada law permits a Nevada corporation to purchase and maintain
insurance or to make other financial arrangements on behalf of any person who is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise for any liability asserted against him or her and liability and
expenses incurred by him or her in his or her capacity as a director, officer,
employee or agent, or arising out of his or her status as such, whether or not
the corporation has the authority to indemnify him or her against such liability
and expenses.
Under the Company's Restated Articles of Incorporation, the Company is
obligated to indemnify, to the fullest extent permitted by Nevada law, any
director or officer who was or is a party or is threatened to be made a party
to, or is involved in, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding"), by reason of the fact that the director or officer, or a person
of whom he or she is the legal representative, is or was a director or officer
II-2
of the Company, or a member of any committee of the Board of Directors of the
Company, or is or was serving at the request of the Company as a director,
officer, partner, trustee, employee or agent of another corporation, limited
liability company, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
the proceeding is alleged action in an official capacity as a director, officer,
partner, trustee, employee or agent or in any other capacity while serving as a
director officer, partner, trustee, employee or agent; against all expense,
liability and loss (including attorneys' fees, judgments, fines, excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by the director or officer in connection with the proceeding. In
addition, indemnification is required to continue as to a person who has ceased
to be a director, officer, partner, trustee, employee or agent and inures to the
benefit of his or her heirs, executors and administrators. However, subject to
the exceptions detailed below, the Company may indemnify a person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
the person seeking indemnification only if the proceeding (or part thereof) was
authorized by the Company's Board of Directors. The Company may indemnify any
employee or agent of the Company to an extent greater than required by law only
if and to the extent that the Company's directors, in their discretion, may
determine.
If a claim for indemnification under the Company's Restated Articles of
Incorporation is not paid in full by the Company within 30 days after a written
claim has been received by the Company, the claimant may at any time thereafter
bring suit against the Company to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant also will be entitled to be paid
the expense of prosecuting such claim. With some exceptions, the Company may
defend against an action brought for this purpose that the claimant has not met
the standards of conduct which make it permissible under Chapter 78 of the
Nevada General Statutes for the Company to indemnify the claimant for the amount
claimed, but the burden of proving such defense is on the Company. Neither the
failure of the Company (including its Board of Directors, independent legal
counsel or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in Chapter 78 of the Nevada General Statutes, nor an actual
determination by the Company (including its Board of Directors, independent
legal counsel or its stockholders) that the claimant has not met such applicable
standard of conduct is a defense to the action or creates a presumption that the
claimant has not met the applicable standard of conduct.
Item 7. Exemption from Registration Claimed.
No response is required to this item.
Item 8. Exhibits.
See the Exhibit Index at Page X-1 of this Registration Statement.
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
II-3
(iii)To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The Company hereby undertakes that, for the purposes of determining
any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
II-4
Signatures
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Knoxville, State of Tennessee, on this 30th day of
September, 2003.
Provectus Pharmaceuticals, Inc.
By:/s/ Timothy C. Scott
------------------------------------
Timothy C. Scott, Ph.D.
President
Power Of Attorney
Each person whose signature appears below constitutes and appoints H. Craig
Dees, Ph.D., Daniel R. Hamilton, and David L. Morehous, and each of them, his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to the Registration Statement on Form
S-8 filed by Provectus Pharmaceuticals, Inc. (the "Company") with the U.S.
Securities and Exchange Commission (the "SEC"), and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the SEC;
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary fully to all intents and purposes as he might or could do in person
thereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his substitutes or substitute, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 30, 2003:
Signatures
----------
Title
-----
/s/ H. Craig Dees Chief Executive Officer and a Director
----------------------------- (Principal executive officer)
H. Craig Dees
/s/ Daniel R. Hamilton Chief Financial Officer (Principal financial
----------------------------- officer and principal accounting officer)
Daniel R. Hamilton
/s/ Timothy C. Scott Director
-----------------------------
Timothy C. Scott, Ph.D.
/s/ Eric A. Wachter Director
-----------------------------
Eric A. Wachter
/s/ Stuart Fuchs Director
-----------------------------
Stuart Fuchs
II-5
Exhibit Index
Exhibit No. Description
----------- -----------
4.1 Consulting Agreement dated September 1, 2003
between the Company and Dr. Phillip A. Baker.
4.2 Consulting Agreement dated September 4, 2003
between the Company and Bruce A. Cosgrove.
4.3 Consulting Agreement dated September 4, 2003
between the Company and George F. Matin.
5.1 Opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
23.1 Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
(included in Exhibit 5.1).
23.2 Consent of BDO Seidman LLP.
24.1 Power of Attorney (included on Page II-5 of this Registration
Statement).
--------------------------------------------
X-1