As filed with the Securities and Exchange
Commission on November 1, 2017
Registration No. 333-_________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3 REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
22nd CENTURY GROUP, INC.
(Exact name of registrant as specified in
its charter)
Nevada
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98-0468420
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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9530 Main Street
Clarence, New York 14031
(716) 270-1523
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Thomas L. James, Esq.
Vice President, General Counsel and Secretary
22nd Century Group, Inc.
9530 Main Street
Clarence, New York 14031
(716) 270-1523
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
with a copy to:
John J. Wolfel, Esq.
Michael B. Kirwan, Esq.
Foley & Lardner LLP
One Independent Drive, Suite 1300
Jacksonville, Florida 32202
(904) 359-2000
Approximate date of commencement
of proposed sale to the public:
From time to time after this registration statement becomes effective.
If the only securities being registered
on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
¨
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest reinvestment plans, please check the following box.
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
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Accelerated filer
x
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
¨
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Emerging growth company
¨
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CALCULATION OF REGISTRATION FEE
Title of each class of
securities to be registered
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Amount to be
Registered (1)
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Proposed
maximum
offering
price
per share
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Proposed maximum
aggregate offering
price
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Amount of
registration fee
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Common stock, par value $0.00001 per share, underlying
Warrants
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11,293,211
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$
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2.18
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(2)
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$
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24,619,200
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$
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3,066
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the number of shares of common stock registered hereby is subject to adjustment to prevent dilution resulting from stock splits, stock dividends or similar transactions. The shares of common stock are being registered for resale by the selling stockholders named in this registration statement.
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(2)
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Represents the higher of: (i) the exercise price of the convertible security and (ii) the offering price of securities of the same class as the common stock underlying the convertible security calculated in accordance with Rule 457(c) under the Securities Act, for the purpose of calculating the registration fee pursuant to 457(g) under the Securities Act.
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The Registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act
of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete
and may be changed. The selling stockholders may not sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell these securities nor a solicitation of an offer to
buy these securities in any jurisdiction where the offer or sale is not permitted.
Preliminary Prospectus
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(Subject to completion, dated November 1, 2017)
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Up to 11,293,211 Shares of Common Stock
to be sold by the Selling Stockholders
_________________________
This prospectus relates to the offer and
sale from time to time by the selling stockholders named in this prospectus of up to 11,293,211 shares of our common stock issuable
upon the exercise of outstanding warrants that were previously issued pursuant to the Warrant Exercise Agreements that we entered
into on June 19, 2017. For additional information regarding such warrants, see “Description of Capital Stock –
Warrants – Warrants Relating to 11,293,211 Shares of Common Stock Being Registered in this Prospectus.” We will not
receive any proceeds from the sale of shares being sold by the selling stockholders. We will, however, receive proceeds on the
exercise by the selling stockholders of outstanding warrants for shares of our common stock covered by this prospectus if the
warrants are exercised for cash. The selling stockholders may offer the shares for sale directly to purchasers or through dealers
or agents to be designated at a future date.
Our common stock is listed on the NYSE American
under the symbol “XXII.” On October 30, 2017, the closing price of our common stock was $2.17 per share.
Investment in our common stock involves
risks. Please read carefully the section entitled “Risk Factors” on page 1 of this prospectus, our most recent Annual
Report on Form 10-K, subsequently filed Quarterly Reports on Form 10-Q and in any applicable prospectus supplement and/or other
offering material for a discussion of certain factors which should be considered in an investment of the common stock which may
be offered hereby.
________________________
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful
or complete. Any representation to the contrary is a criminal offense.
_________________________
The date of this prospectus is ___________________,
2017.
TABLE OF CONTENTS
About This
Prospectus
Unless the context otherwise requires, in
this prospectus, “company,” “we,” “us,” “our” and “ours” refer to 22nd
Century Group, Inc. and its subsidiaries on a combined basis.
This prospectus is part of a registration
statement that we filed with the Securities and Exchange Commission, or SEC, using a “shelf” registration process.
Under this shelf registration process, the selling stockholders may, from time to time, sell the shares of common stock described
in this prospectus in one or more offerings. A prospectus supplement and/or other offering material may also add, update or change
information contained in this prospectus. You should read this prospectus, any prospectus supplement and any other offering material
together with additional information described under the heading “Where You Can Find More Information.”
You should rely only on the information
contained or incorporated by reference in this prospectus and in any prospectus supplement or other offering material. We have
not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent
information, you should not rely on it. This prospectus is not making offers to sell or solicitations to buy shares of our common
stock in any jurisdiction in which an offer or solicitation is not authorized or in which the person making that offer or solicitation
is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should not assume that the
information in this prospectus, any prospectus supplement or any other offering material, or the information we previously filed
with the SEC that we incorporate by reference in this prospectus or any prospectus supplement, is accurate as of any date other
than its respective date. Our business, financial condition, results of operations and prospects may have changed since those dates.
“Forward-Looking” Information
The information included or incorporation
by reference into this prospectus contains statements that the Company believes to be “forward-looking statements”
within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking
statements include, without limitation, any statement that is not a statement of historical fact, including, without limitation,
statements regarding the Company’s business strategy and plans and objectives of management for future operations or that
may predict, forecast, indicate or imply future results, performance or achievements. The words “estimate,” “project,”
“intend,” “forecast,” “anticipate,” “plan,” “planning,” “expect,”
“believe,” “will,” “will likely,” “should,” “could,” “would,”
“may” or the negative of such words or words or expressions of similar meaning are intended to identify forward-looking
statements. These forward-looking statements are not guarantees of future performance, and all such forward-looking statements
involve risks and uncertainties, many of which are beyond the company’s ability to control. Actual results may differ materially
from those expressed or implied by such forward-looking statements as a result of various factors. We do not undertake, and we
disclaim, any obligation to update any forward-looking statements or to announce revisions to any of the forward-looking statements.
Certain factors could cause results to differ materially from those projected in the forward-looking statements, including, among
other things:
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Our ability to achieve profitability and positive cash flows;
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Our ability to manage our growth effectively;
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Our ability to retain key personnel;
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Our ability to enter into additional licensing transactions;
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The potential for our clinical trials to produce negative or inconclusive results;
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Our ability to obtain significant revenue for our tobacco products;
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Our ability to obtain U.S. Food and Drug Administration (“FDA”) clearance for our potentially modified risk tobacco products and FDA approval for our X-22 smoking cessation aid;
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Our ability to gain market acceptance for our products;
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Any potential negative impact from entering the industrial hemp and medical marijuana space;
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Our ability to raise additional capital on favorable terms or at all;
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Our ability to comply with government regulations;
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Our ability to compete with competitors that may have greater resources than we have;
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The potential for our competitors to develop products that are less expensive, safer or more effective than ours;
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The potential exposure to product liability claims, product recalls and other claims; and
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Our ability to adequately protect our intellectual property and to avoid infringement on rights of third parties.
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The forward-looking statements contained
herein reflect our views and assumptions only as of the date such forward-looking statements are made. You should not place undue
reliance on forward-looking statements. Except as required by law, we assume no responsibility for updating any forward-looking
statements nor do we intend to do so. Our actual results, performance or achievements could materially differ from the results
expressed in, or implied by, these forward-looking statements. The risks included in this section are not exhaustive. Additional
factors that could cause actual results to differ materially from those described in the forward-looking statements are set forth
in under the heading “Risk Factors” contained in our most recent Annual Report on Form 10-K and any subsequently filed
Quarterly Reports on Form 10-Q, as well as any amendments thereto reflected in subsequent filings with the SEC.
22nd
Century Group, inc.
We are a plant biotechnology company focused
on (i) potentially reduced risk tobacco cigarettes and smoking cessation products produced from modifying the nicotine content
in tobacco plants through genetic engineering and plant breeding, and (ii) research and development of unique cannabis/hemp plants
through genetic engineering and plant breeding to alter levels of cannabinoids for new medicines and improved agricultural uses.
We have an extensive intellectual property portfolio of issued patents and patent applications relating to the tobacco and cannabis
plants. Our management team is focused on monetizing our intellectual property portfolio, obtaining regulatory approval to market
both our reduced exposure tobacco cigarettes and our tobacco smoking cessation product in development, and developing and commercializing
high value products derived from our unique cannabis/hemp plants. Our Annual Report on Form 10-K for the year ended December 31,
2016 and subsequently filed Quarterly Reports on Form 10-Q provide additional information about our business, operations and financial
condition.
We are a Nevada corporation incorporated
in September 2005 and our corporate headquarters is located at 9530 Main Street, Clarence, New York 14031. Our telephone number
is (716) 270-1523. Our Internet website address is www.xxiicentury.com. We do not incorporate the information on our website into
this prospectus, and you should not consider it part of this prospectus.
Use of Proceeds
We will not receive any proceeds from the
sale of shares being sold by the selling stockholders. We will, however, receive proceeds on the exercise by the selling stockholders
of outstanding warrants for shares of our common stock covered by this prospectus if the warrants are exercised for cash. See “Description
of Capital Stock – Warrants – Warrants Relating to 11,293,211 Shares of Common Stock Being Registered in this Prospectus”
for a description of the warrants that are exercisable for shares of our common stock covered by this prospectus.
Risk Factors
Investing in our common stock involves a
high degree of risk. You should carefully consider the specific risks set forth under the caption “Risk Factors” in
our most recent Annual Report on Form 10-K, incorporated into this prospectus by reference, as updated by our subsequent filings
under the Securities Exchange Act of 1934, as amended. You should consider carefully those risk factors together with all of the
other information included and incorporated by reference in this prospectus before investing in any shares of common stock offered
by this prospectus. For more information, see “Where You Can Find More Information.”
Description
of Capital Stock
Our authorized capital stock consists of
300,000,000 shares of common stock, $0.00001 par value per share, and 10,000,000 shares of preferred stock, $0.00001 par value
per share. As of October 30, 2017, 123,543,117 shares of common stock were issued and outstanding and no shares of preferred stock
were issued and outstanding.
The following summary of certain provisions
of our capital stock does not purport to be complete and is subject to and is qualified in its entirety by our amended and restated
articles of incorporation, amended and restated bylaws, and warrants referred to below. This description is only a summary. For
more detailed information, you should refer to the exhibits to the registration statement of which this prospectus is a part and
incorporated by reference into this prospectus. See “Where You Can Find More Information.”
Common Stock
Our common stock is traded on the NYSE American
under the symbol “XXII.” Holders of our common stock are entitled to one vote for each share held on all matters submitted
to a vote of stockholders and do not have cumulative voting rights. Holders of common stock are entitled to receive ratably such
dividends, if any, as may be declared by the board of directors out of funds legally available therefore, subject to a preferential
dividend right of outstanding preferred stock. Upon the liquidation, dissolution or our winding up, the holders of common stock
are entitled to receive ratably our net assets available after the payment of all debts and other liabilities and subject to the
prior rights of any outstanding preferred stock. The rights, preferences and privileges of holders of our common stock are subject
to, and may be adversely affected by the rights of the holders any series of preferred stock that we may designate and issue in
the future.
Preferred Stock
Under the terms of our amended and restated
articles of incorporation, the board of directors is authorized, subject to any limitations prescribed by law, without stockholder
approval, to issue shares of preferred stock in one or more series. Each such series of preferred stock shall have such rights,
preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges and
liquidation preferences, as shall be determined by the board of directors.
The purpose of authorizing the board of
directors to issue preferred stock and determine its rights and preferences is to eliminate delays associated with a stockholder
vote on specific issuances. The issuance of preferred stock, while providing desirable flexibility in connection with possible
acquisitions and other corporate purposes, could have the effect of making it more difficult for a third part to acquire, or of
discouraging a third party from acquiring, a majority of our outstanding voting stock. We have no present plans to issue any additional
shares of preferred stock.
The effects of issuing preferred
stock could include one or more of the following:
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decreasing the amount of earnings and assets available for distribution to holders of common stock;
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restricting dividends on the common stock;
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diluting the voting power of the common stock;
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impairing the liquidation rights of the common stock; or
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delaying, deferring or preventing changes in our control or management.
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As of the date of this prospectus, there
were no shares of preferred stock outstanding.
Stock Options and Restricted Stock
As of October 30, 2017, we had outstanding
options to purchase a total of 6,856,691 shares of common stock at a weighted average exercise price of $1.1150 per share. Of this
total, options to purchase 3,617,670 were vested and 3,239,021 remain unvested. As of October 30, 2017, we had no outstanding shares
of restricted common stock subject to vesting conditions.
Warrants
Convertible Notes Issued in December
2011 and Related Warrants
On December 14, 2011, we entered into an
agreement with certain accredited investors, whereby such investors acquired approximately $1.9 million of convertible promissory
notes of the company (the “Convertible Notes”). All of the Convertible Notes were converted or paid off in full subsequent
to December 31, 2012 in transactions that resulted in the issuance of warrants to the note holders to purchase an aggregate amount
of 2,636,060 shares of our common stock at an exercise price of $1.50 per share. These warrants issued upon conversion of the Convertible
Notes have a term of five years and are exercisable at any time on or before the fifth anniversary of the issue date of the warrants.
The warrants may be exercised on a cashless basis. The exercise price and number of shares of our common stock issuable upon exercise
of these warrants may be adjusted in certain circumstances, including in the event of a stock dividend, or our recapitalization,
reorganization, merger or consolidation. No fractional shares will be issued upon exercise of these warrants. Of the warrants described
above, as of October 30, 2017, warrants to purchase an aggregate of 700,148 shares purchasable with an exercise price of $1.3816
per share expiring on February 6, 2018 were outstanding.
November 2012 Warrants
On November 9, 2012, we entered into an
agreement with certain accredited investors, whereby the investors acquired warrants with a 5-year term to purchase up to 1,619,000
shares of our common stock at an exercise price of $1.00 per share. The exercise price and number of shares of our common stock
issuable upon exercise of the warrants may be adjusted in certain circumstances, including in the event of a stock dividend, or
our recapitalization, reorganization, merger or consolidation. No fractional shares will be issued upon exercise of these warrants.
Of the warrants described above, as of October 30, 2017, warrants to purchase an aggregate of 31,500 shares of common stock were
outstanding with an exercise price of $0.60 per share expiring on November 9, 2017.
Convertible Notes Issued in August 2012
and Related Warrants
On August 9, 2012, we completed a private
placement of $222,600 of convertible notes, which were sold at a 6% discount. We received proceeds of $210,000. All of these convertible
notes were converted in August 2013 in transactions that resulted in the issuance of warrants to the note holders to purchase an
aggregate amount of 371,000 shares of our common stock at an exercise price of $1.00 per share. These warrants issued upon conversion
of such convertible notes have a term of five years and are exercisable at any time on or before the fifth anniversary of the issue
date of the warrants. The warrants may be exercised on a cashless basis. The exercise price and number of shares of our common
stock issuable upon exercise of these warrants may be adjusted in certain circumstances, including in the event of a stock dividend,
or our recapitalization, reorganization, merger or consolidation. These warrants also provide holders with weighted-average anti-dilution
price protection. No fractional shares will be issued upon exercise of these warrants. As of October 30, 2017, warrants to purchase
an aggregate of 94,721 shares of common stock were outstanding with an exercise price of $0.9310 per share expiring on August 8,
2018.
Warrants Relating to 11,293,211 Shares
of Common Stock Being Registered in this Prospectus
On June 19, 2017, we entered into Warrant
Exercise Agreements (the “Exercise Agreements”) with all of the holders (the “Exercising Holders”) of our
previously outstanding warrants to purchase up to 7,043,211 shares of common stock at $1.00 per share and warrants to purchase
up to 4,250,000 shares of common stock for $1.45 per share (collectively, the "Original Warrants") whereby the Exercising
Holders agreed, subject to beneficial ownership limitations on exercise contained in the Original Warrants, to exercise all of
the Original Warrants for cash. We received aggregate gross proceeds before expenses of approximately $13.2 million from the exercise
of all of the Original Warrants by the Exercising Holders.
In consideration for the Existing Holders
exercising their Original Warrants for cash, the Company issued to each Exercising Holder a new warrant to purchase shares of common
stock equal to the number of shares of common stock received by such Exercising Holder upon the cash exercise of such Exercising
Holder's Original Warrants.
The new warrants provide for an exercise
price of $2.15 per share, become exercisable on December 20, 2017 and expire on December 20, 2022. The exercise price of the new
warrants will be adjusted in the event of stock splits, reverse stock splits and the like pursuant to their terms. The holder will
not have the right to exercise any portion of the warrant if the holder, together with its affiliates, would beneficially own in
excess of 4.99% of the number of shares of our common stock (including securities convertible into common stock) outstanding immediately
after the exercise; provided, however, that the holder may increase or decrease this limitation at any time, although any increase
shall not be effective until the 61st day following the notice of increase and the holder may not increase this limitation in excess
of 9.99% of the number of shares of our common stock (including securities convertible into common stock) outstanding immediately
after the exercise. As of October 30, 2017, all 11,293,211 of the warrants remained unexercised and outstanding. This prospectus
relates to the resale by the selling stockholders of the 11,293,211 shares of common stock issuable upon exercise of the new warrants.
The new warrants are only exercisable for cash provided that a registration statement relating to the shares issued upon exercise
of such warrants is effective. If there is no effective registration statement, the new warrants may be exercised on a cashless
basis.
Registration Rights Agreement
On September 17, 2014, we entered into a Securities Purchase
Agreement (the “Securities Purchase Agreement”) with Crede CG III, Ltd. pursuant to which we issued and sold to Crede
CG III, Ltd. 3,871,767 shares of common stock. In connection with the entry into the Securities Purchase Agreement, we entered
into a Registration Rights Agreement (the “Registration Rights Agreement”) requiring us to register the resale of the
shares of common stock issued pursuant to the Securities Purchase Agreement. We agreed to keep the prospectus relating to the Registration
Rights Agreement (File No. 333-199273) effective until the earlier of (i) the date on which the shares may be sold without registration
and without regard to any volume or manner-of-sale limitations by reason of Rule 144 and without the need for current public information
required by Rule 144(c)(1) or (ii) all of the shares have been sold.
Anti-Takeover Provisions Under Nevada Law
Combinations with Interested Stockholder.
Sections
78.411-78.444, inclusive, of the Nevada Revised Statutes (NRS) contain provisions governing combinations with an interested stockholder.
For purposes of the NRS, "combinations" include: (i) any merger or consolidation of a Nevada corporation or any
subsidiary of a Nevada corporation with the interested stockholder or any other entity, whether or not itself is an interested
stockholder of the Nevada corporation, which is, or after and as a result of the merger or consolidation would be, an affiliate
or associate of the interested stockholder; (ii) any sale, lease, exchange mortgage, pledge, transfer or other disposition, in
one transaction or a series of transactions, to or with the interested stockholder or any affiliate or associate of the interested
stockholder of assets of the Nevada corporation or any subsidiary of the Nevada corporation (x) having an aggregate market value
equal to more than 5% of the aggregate market value of all of the consolidated assets of the Nevada corporation, (y) having an
aggregate market value equal to more than 5% of the aggregate market value of all the outstanding voting shares of the Nevada corporation,
or (z) representing more than 10% of the earning power or net income of the Nevada corporation (determined on a consolidated basis);
(iii) the issuance or transfer by the Nevada corporation or any subsidiary of the Nevada corporation, in one transaction or a series
of transactions, of any shares of the Nevada corporation or any subsidiary of the Nevada corporation that have an aggregate market
value equal to 5% or more of the aggregate market value of all the outstanding voting shares of the Nevada corporation to the interested
stockholder or any affiliate or associate of the interested stockholder except under the exercise of warrants or rights to purchase
shares offered, or a dividend or distribution paid or made, pro rata to all stockholders of the Nevada corporation; (iv) the adoption
of any plan or proposal for the liquidation or dissolution of the Nevada corporation under any agreement, arrangement or understanding,
whether or not in writing, with the interested stockholder or affiliate or associate of the interested stockholder; (v) except
for transactions that would not constitute a combination pursuant to subsection (iii) above, any reclassification of securities
(including share splits, share dividend or other distribution of shares with respect to other shares, or any issuance of new shares
in exchange for a proportionately greater number of old shares), any recapitalization of the Nevada corporation, any merger or
consolidation of the Nevada corporation with any of its subsidiaries, or any other transaction, whether or not with or into or
otherwise involving the interested stockholder; and (vi) any receipt by the interested stockholder or any affiliate or associate
of the interested stockholder of the benefit, directly or indirectly, except proportionately as a stockholder of the Nevada corporation,
of any loan, advance, guarantee, pledge or other financial assistance or any tax credit or other tax advantage provided by or through
the Nevada corporation.
For purposes of the NRS, an "interested
stockholder" is defined to include any person, other than the Nevada corporation or any subsidiary of the Nevada corporation,
that is: (a) a beneficial owner, directly or indirectly, of 10% or more of the voting power of the outstanding voting shares of
the Nevada corporation or (b) an affiliate or associate of the Nevada corporation and was, at any time within two years immediately
before the date in question, the beneficial owner, directly or indirectly, of 10% or more of the voting power of the then-outstanding
shares of the Nevada corporation.
Subject to certain exceptions, the provisions
of the NRS statute governing combinations with interested stockholders provide that a Nevada corporation may not engage in a combination
with an interested stockholder for two years after the date that the person first became an interested stockholder unless (i) the
combination or the transaction by which the person first became an interested stockholder is approved by the board of directors
before the person first became an interested stockholder or (ii) during the two-year period, the transaction is approved by the
board and by 60% of the disinterested stockholders at an annual or special meeting of the stockholders.
After such two-year period, corporations
subject to these statutes may not engage in specified business combinations and transactions unless: (i) the business combination
or transaction by which the person first became an interested stockholder is approved by the board of directors before the stockholder
became an interested stockholder; (ii) the business combination is approved by a majority of the outstanding voting power (excluding
the shares held by the interested stockholder or any affiliate or associate of the interested stockholder); or (iii) the combination
meets the requirements of 78.411 through 78.444 of the NRS, inclusive.
The NRS allows a corporation to "opt
out" of NRS 78.411 through 78.444, inclusive, by providing in such corporation's original articles of incorporation or bylaws
that such statutes do not apply to the corporation. Unless certain limited exceptions apply, corporations cannot opt out of such
statutes by amending their articles of incorporation or bylaws. We have not opted out of such statutes.
Control Share Acquisitions.
The
NRS also contains a "control share acquisitions statute." If applicable to a Nevada corporation, this statute restricts
the voting rights of certain stockholders referred to as "acquiring persons," that acquire or offer to acquire ownership
of a "controlling interest" in the outstanding voting stock of an "issuing corporation." For purposes of these
provisions (i) a "controlling interest" means with certain exceptions the ownership of outstanding voting stock sufficient
to enable the acquiring person to exercise one-fifth or more but less than one-third, one-third or more but less than a majority,
or a majority or more of all voting power in the election of directors and (ii) an "issuing corporation" means a Nevada
corporation that has 200 or more stockholders of record, at least 100 of whom have addresses in Nevada appearing on the stock ledger
of the corporation, and which does business in Nevada directly or through an affiliated corporation. The voting rights of an acquiring
person in the affected shares will be restored only if such restoration is approved by the holders of a majority of the voting
power of the corporation (excluding the shares held by the acquiring person) at an annual or special meeting of the stockholders.
The NRS allows a corporation to "opt
out" of the control share acquisitions statute by providing in such corporation's articles of incorporation or bylaws, in
effect on the 10th day following the acquisition of a controlling interest by an acquiring person, that the control share acquisitions
statute does not apply to the corporation or to an acquisition of a controlling interest specifically by types of existing or future
stockholders, whether or not identified. We have not opted out of the control share acquisitions statute.
Liability and Indemnification of Directors and Officers
NRS Sections 78.7502 and 78.751 provide
us with the power to indemnify any of our directors, officers, employees or agents, or any person who serves or served at the corporation’s
request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise
(for purposes of this section, the “Indemnitee” or “Indemnitees”) against expenses, including attorneys’
fees, actually and reasonably incurred related to any threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative or investigative) arising by reason of an Indemnitee’s status as a director, officer employee or
agent of the corporation if: (i) the Indemnitee is not liable for breach of fiduciary duties to the corporation involving intentional
misconduct, fraud or knowing violation of law; (ii) the Indemnitee conducted himself or herself in good faith and reasonably believes
that his or her conduct was in, or not opposed to, our best interests; or (iii) in a criminal action, the Indemnitee must not have
had reasonable cause to believe that his or her conduct was unlawful. NRS Section 78.502 requires us to indemnify any Indemnitee
for any expenses referenced above if the Indemnitee has been successful on the merits or otherwise in defense of the foregoing
actions, suits or proceedings.
Under NRS Section 78.751, any discretionary
indemnification can only occur if deemed proper by (i) the stockholders; (ii) a majority vote of a quorum consisting of disinterested
directors; or (iii) an independent counsel’s written legal opinion (if such an approach is approved by a majority vote of
a quorum consisting of disinterested directors or if a quorum consisting of disinterested directors cannot be obtained). Advances
for expenses may be made by agreement if the Indemnitee affirms in writing that he or she believes that he or she has met the statutory
standards and will personally repay the expenses if a court of competent jurisdiction determines that such Indemnitee did not meet
the statutory standards.
Our amended and restated bylaws include
an indemnification provision under which we have the power to indemnify, to the extent permitted under Nevada law, our current
and former directors and officers, or any person who serves or served at our request for our benefit as a director or officer of
another corporation or our representative in a partnership, joint venture, trust or other enterprise, against all expenses, liability
and loss reasonably incurred by reason of being or having been a director, officer or representative of ours or any of our subsidiaries.
We may make advances for expenses upon receipt of an undertaking by or on behalf of the director or officer to repay the amount
if it is ultimately determined by a court of competent jurisdiction that he, she or it is not entitled to be indemnified by us.
Our amended and restated articles of incorporation
provides that we shall indemnify directors and officers to the fullest extent permitted by the NRS. Our amended and restated articles
of incorporation also provide a limitation of liability such that no director or officer shall be personally liable to us or any
of our stockholders to the fullest extent permitted by the NRS.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of ours under Nevada law or otherwise,
we have been advised that the opinion of the SEC is that such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event a claim for indemnification against such liabilities (other than payment by
us for expenses incurred or paid by a director, officer or controlling person of ours in successful defense of any action, suit,
or proceeding) is asserted by a director, officer or controlling person in connection with the securities being registered, we
will, unless in the opinion of our legal counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by our company is against public policy in the Securities Act and will
be governed by the final adjudication of such issue.
NYSE American Listing
Our common stock is listed on the NYSE American
under the symbol “XXII.”
Transfer Agent and Registrar
The transfer agent and registrar for our
common stock is Continental Stock Transfer & Trust Company, One State Street, 30
th
Floor, New York, NY 10004-1561.
Selling
StockholderS
The shares of common
stock being offered by the selling stockholders consist of those issuable to the selling stockholders upon exercise of outstanding
warrants. For additional information regarding the issuance of the common stock and warrants, see “Description of Capital
Stock – Warrants - Warrants Relating to 11,293,211 Shares of Common Stock Being Registered in this Prospectus.” We
are registering the shares of common stock issuable upon the exercise of outstanding warrants in order to permit the selling stockholders
to offer the shares for resale from time to time.
The table below lists
the selling stockholders and other information regarding the beneficial ownership (as determined under Section 13(d) of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder) of the shares of common stock held by the selling stockholders
as of October 30, 2017. The second column lists the number of shares of common stock beneficially owned by each selling stockholders,
based on its ownership of the shares of common stock and warrants, as of October 30, 2017, assuming exercise of the warrants held
by the selling stockholders on that date, without regard to any limitations on exercises. The third column lists the shares of
common stock being offered by this prospectus by the selling stockholders. The fourth column assumes the sale of all of the shares
of common stock offered by the selling stockholders pursuant to this prospectus.
Under the terms of
the warrants, a selling stockholder will not have the right to exercise the warrants to the extent such exercise would cause such
selling stockholder, together with its affiliates, to beneficially own a number of shares of common stock in excess of 4.99% of
the number of shares of our then outstanding shares of common stock following such exercise, excluding for purposes of such determination
shares of common stock issuable upon exercise of the warrants which have not been exercised. The number of shares in the second
column does not reflect this limitation. The selling stockholders may sell all, some or none of their shares in this offering.
See “Plan of Distribution.”
Name
|
|
Number of Shares of
Common Stock Owned
Prior to Offering
|
|
|
Maximum Number of
Shares of Common Stock to
be Sold Pursuant to this
Prospectus
|
|
|
Number of Shares of
Common Stock Owned
After Offering
|
|
Empery Asset Master, Ltd. (1)
|
|
|
4,575,688
|
(5)
|
|
|
3,670,809
|
|
|
|
904,879
|
|
Empery Tax Efficient, LP (2)
|
|
|
1,993,697
|
(6)
|
|
|
1,993,697
|
|
|
|
-
|
|
Empery Tax Efficient II, LP (3)
|
|
|
4,878,705
|
(7)
|
|
|
4,878,705
|
|
|
|
-
|
|
Anson Investments Master Fund LP (4)
|
|
|
750,000
|
(8)
|
|
|
750,000
|
|
|
|
-
|
|
|
(1)
|
Empery Asset Management LP, the authorized agent of Empery Asset Master Ltd ("EAM"),
has discretionary authority to vote and dispose of the shares held by EAM and may be deemed to be the beneficial owner of these
shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to
have investment discretion and voting power over the shares held by EAM. EAM, Mr. Hoe and Mr. Lane each disclaim any beneficial
ownership of these shares. The business address for each of EAM, Empery Asset Management LP and Messrs. Hoe and Lane is c/o Empery
Asset Management, LP, 1 Rockefeller Plaza, Suite 1205, New York, NY 10020.
|
|
(2)
|
Empery Asset Management LP, the authorized agent of Empery Tax Efficient, LP ("ETE"),
has discretionary authority to vote and dispose of the shares held by ETE and may be deemed to be the beneficial owner of these
shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to
have investment discretion and voting power over the shares held by ETE. ETE, Mr. Hoe and Mr. Lane each disclaim any beneficial
ownership of these shares. The business address for each of ETE, Empery Asset Management LP and Messrs. Hoe and Lane is c/o Empery
Asset Management, LP, 1 Rockefeller Plaza, Suite 1205, New York, NY 10020.
|
|
(3)
|
Empery Asset Management LP, the authorized agent of Empery Tax Efficient II, LP ("ETE II"),
has discretionary authority to vote and dispose of the shares held by ETE II and may be deemed to be the beneficial owner of these
shares. Martin Hoe and Ryan Lane, in their capacity as investment managers of Empery Asset Management LP, may also be deemed to
have investment discretion and voting power over the shares held by ETE II. ETE II, Mr. Hoe and Mr. Lane each disclaim any beneficial
ownership of these shares. The business address for each of ETE II, Empery Asset Management LP and Messrs. Hoe and Lane is c/o
Empery Asset Management, LP, 1 Rockefeller Plaza, Suite 1205, New York, NY 10020.
|
|
(4)
|
Anson Advisors Inc and Anson Funds Management LP, the Co-Investment Advisers of Anson Investments
Master Fund LP (“Anson”), hold voting and dispositive power over the shares of common stock held by Anson. Bruce Winson
is the managing member of Anson Management GP LLC, which is the general partner of Anson Funds Management LP. Moez Kassam and Adam
Spears are directors of Anson Advisors Inc. Mr. Winson, Mr. Kassam and Mr. Spears each disclaim beneficial ownership of these shares
of common stock except to the extent of their pecuniary interest therein. The principal business address of Anson is 190 Elgin
Ave; George Town, Grand Cayman.
|
|
(5)
|
Includes (i) 904,879 shares of common stock and (ii) warrants to purchase up to 3,670,809 shares of common stock. For additional
information regarding the warrants, see “Description of Capital Stock – Warrants - Warrants Relating to 11,293,211
Shares of Common Stock Being Registered in this Prospectus.”
|
|
(6)
|
Includes warrants to purchase up to 1,993,697 shares of common stock. For additional information regarding the warrants, see
“Description of Capital Stock – Warrants - Warrants Relating to 11,293,211 Shares of Common Stock Being Registered
in this Prospectus.”
|
|
(7)
|
Includes warrants to purchase up to 4,878,705 shares of common stock. For additional information regarding the warrants, see
“Description of Capital Stock – Warrants - Warrants Relating to 11,293,211 Shares of Common Stock Being Registered
in this Prospectus.”
|
|
(8)
|
Includes 750,000 warrants to purchase common stock not exercisable until December 20, 2017. For additional information regarding
the warrants, see “Description of Capital Stock – Warrants - Warrants Relating to 11,293,211 Shares of Common Stock
Being Registered in this Prospectus.”
|
Plan of
Distribution
We are registering
the shares of common stock issuable upon exercise of warrants to permit the resale of these shares of common stock by the holder
from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholders
of the shares of common stock. We will, however, receive proceeds on the exercise by the selling stockholders of outstanding warrants
for shares of our common stock covered by this prospectus if the warrants are exercised for cash. We will bear all fees and expenses
incident to the registration of the shares of common stock, provided, however, the selling stockholders will pay all underwriting
discounts and selling commissions, if any.
The selling stockholders
may sell all or a portion of the shares of common stock held and offered hereby from time to time directly or through one or more
underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters or broker-dealers, the selling
stockholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of common stock
may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices
determined at the time of sale or at negotiated prices. These sales may be effected in transactions, which may involve crosses
or block transactions, pursuant to one or more of the following methods:
|
·
|
on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;
|
|
·
|
in the over-the-counter market;
|
|
·
|
in transactions otherwise than on these exchanges or systems or in the over-the-counter market;
|
|
·
|
through the writing or settlement of options, whether such options are listed on an options exchange or otherwise;
|
|
·
|
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
|
·
|
block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
|
|
·
|
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
·
|
an exchange distribution in accordance with the rules of the applicable exchange;
|
|
·
|
privately negotiated transactions;
|
|
·
|
short sales made after the date the Registration Statement is declared effective by the SEC;
|
|
·
|
broker dealers may agree with a selling stockholder to sell a specified number of such shares at a stipulated price per share;
|
|
·
|
a combination of any such methods of sale; or
|
|
·
|
any other method permitted pursuant to applicable law.
|
The selling
stockholders may also sell shares of common stock under Rule 144 or any other exemption from registration promulgated under
the Securities Act, if available, rather than under this prospectus. In addition, the selling stockholders may transfer
the shares of common stock by other means not described in this prospectus. If the selling stockholders effect such
transactions by selling shares of common stock to or through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling
stockholders or commissions from purchasers of the shares of common stock for whom they may act as agent or to whom they may
sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be
in excess of those customary in the types of transactions involved). The selling stockholders may also loan or pledge shares
of common stock to broker-dealers that in turn may sell such shares.
The selling stockholders
may pledge or grant a security interest in some or all of the warrants or shares of common stock owned and, if it defaults in the
performance of its secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time
to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the
Securities Act amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors
in interest as a selling stockholder under this prospectus. The selling stockholders also may transfer and donate the shares of
common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the
selling beneficial owners for purposes of this prospectus.
To the extent required
by the Securities Act and the rules and regulations thereunder, the selling stockholders and any broker-dealer participating in
the distribution of the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities
Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting
commissions or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, a prospectus
supplement, if required, will be distributed, which will set forth the aggregate amount of shares of common stock being offered
and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other
terms constituting compensation from the selling stockholder and any discounts, commissions or concessions allowed or re-allowed
or paid to broker-dealers.
Under the securities
laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers.
In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified for
sale in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance
that the selling stockholders will sell any or all of the shares of common stock registered pursuant to the registration statement,
of which this prospectus forms a part.
The selling stockholders
and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation
M of the Securities Exchange Act of 1934, as amended, which may limit the timing of purchases and sales of any of the shares of
common stock by the selling stockholders and any other participating person. To the extent applicable, Regulation M may also restrict
the ability of any person engaged in the distribution of the shares of common stock to engage in market-making activities with
respect to the shares of common stock. All of the foregoing may affect the marketability of the shares of common stock and the
ability of any person or entity to engage in market-making activities with respect to the shares of common stock.
Once sold under the
registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the hands
of persons other than our affiliates.
Legal Matters
The validity of the securities offered by
this prospectus will be passed upon for us by Foley & Lardner LLP. As of October 30, 2017, Foley & Lardner, LLP owned 515,950
shares of common stock of the Company.
Experts
The consolidated financial statements of
22nd Century Group, Inc. as of December 31, 2016 and 2015, and for the years then ended, have been incorporated by reference herein
in reliance upon the report of Freed Maxick CPAs, P.C., independent registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and auditing. To the extent that Freed Maxick CPAs, P.C. audits
and reports on consolidated financial statements of 22nd Century Group, Inc. at future dates and consents to the use of their reports
thereon, such consolidated financial statements also will be incorporated by reference in the registration statement in reliance
upon their reports and said authority.
Where You
Can Find More Information
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. We also filed a registration statement on Form S-3, including exhibits, under
the Securities Act with respect to the securities offered by this prospectus. This prospectus is a part of the registration statement,
but does not contain all of the information included in the registration statement or the exhibits. You may read and copy the registration
statement and any other document that we file at the SEC’s public reference room at 100 F Street, N.E., Washington D.C. 20549.
You can call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference room. You can also find
our public filings with the SEC on the internet at a web site maintained by the SEC located at http://www.sec.gov.
Incorporation
of Certain Documents by Reference
We are “incorporating by reference”
specified documents that we file with the SEC, which means:
|
·
|
incorporated documents are considered part of this prospectus;
|
|
·
|
we are disclosing important information to you by referring you to those documents; and
|
|
·
|
information we file with the SEC will automatically update and supersede information contained in this prospectus.
|
We incorporate by reference the documents
listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after
the date of the registration statement on Form S-3 filed under the Securities Act with respect to securities offered by this prospectus
and prior to the effectiveness of such registration statement and (ii) after the date of this prospectus and before the end
of the offering of the securities pursuant to this prospectus:
|
·
|
our Annual Report on Form 10-K for the year ended December 31, 2016;
|
|
·
|
our Quarterly Reports on Form 10-Q for the periods ended March 31, 2017 and June 30, 2017;
|
|
·
|
our Definitive Proxy Statement on Schedule 14A filed March 17, 2017;
|
|
·
|
our Current Reports on Form 8-K filed on May 3, 2017, June 19, 2017, September 25, 2017 (excluding Item 7.01 and the exhibit
related thereto) and October 10, 2017 (excluding Item 7.01 and the exhibit related thereto); and
|
|
·
|
the description of our common stock contained in or incorporated into our Registration Statement on Form 8-A, filed March 6,
2014, and any amendment or report updating that description.
|
Information in this prospectus supersedes
related information in the documents listed above, and information in subsequently filed documents supersedes related information
in both this prospectus and the incorporated documents.
We will promptly provide, without charge
to you, upon written or oral request, a copy of any or all of the documents incorporated by reference in this prospectus, other
than exhibits to those documents, unless the exhibits are specifically incorporated by reference in those documents. Requests should
be directed to:
22nd Century Group, Inc.
9530 Main Street
Clarence, New York 14031
(716) 270-1523
You can also find these filings on our website
at www.xxiicentury.com. We are not incorporating the information on our website other than these filings into this prospectus.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The aggregate estimated expenses, other
than underwriting discounts and commissions, in connection with the sale of the securities being registered hereby are currently
anticipated to be as follows (all amounts are estimated except the Securities and Exchange Commission registration fee). All expenses
of the offering will be paid by 22nd Century Group, Inc.
|
|
Amount
|
|
Securities and Exchange Commission registration fee
|
|
$
|
3,066
|
|
Legal fees and expenses
|
|
|
10,000
|
|
Accounting fees and expenses
|
|
$
|
5,000
|
|
Miscellaneous expenses
|
|
$
|
1,934
|
|
Total
|
|
$
|
20,000
|
|
Item 15. Indemnification of Directors and Officers.
NRS Sections 78.7502 and 78.751 provide
us with the power to indemnify any of our directors, officers, employees or agents, or any person who serves or served at the corporation’s
request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise
(for purposes of this section, the “Indemnitee” or “Indemnitees”) against expenses, including attorneys’
fees, actually and reasonably incurred related to any threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative or investigative) arising by reason of an Indemnitee’s status as a director, officer employee or
agent of the corporation if: (i) the Indemnitee is not liable for breach of fiduciary duties to the corporation involving intentional
misconduct, fraud or knowing violation of law; (ii) the Indemnitee conducted himself or herself in good faith and reasonably believes
that his or her conduct was in, or not opposed to, our best interests; or (iii) in a criminal action, the Indemnitee must not have
had reasonable cause to believe that his or her conduct was unlawful. NRS Section 78.502 requires us to indemnify any Indemnitee
for any expenses referenced above if the Indemnitee has been successful on the merits or otherwise in defense of the foregoing
actions, suits or proceedings.
Under NRS Section 78.751, any discretionary
indemnification can only occur if deemed proper by (i) the stockholders; (ii) a majority vote of a quorum consisting of disinterested
directors; or (iii) an independent counsel’s written legal opinion (if such an approach is approved by a majority vote of
a quorum consisting of disinterested directors or if a quorum consisting of disinterested directors cannot be obtained). Advances
for expenses may be made by agreement if the Indemnitee affirms in writing that he or she believes that he or she has met the statutory
standards and will personally repay the expenses if a court of competent jurisdiction determines that such Indemnitee did not meet
the statutory standards.
Our amended and restated bylaws include
an indemnification provision under which we have the power to indemnify, to the extent permitted under Nevada law, our current
and former directors and officers, or any person who serves or served at our request for our benefit as a director or officer of
another corporation or our representative in a partnership, joint venture, trust or other enterprise, against all expenses, liability
and loss reasonably incurred by reason of being or having been a director, officer or representative of ours or any of our subsidiaries.
We may make advances for expenses upon receipt of an undertaking by or on behalf of the director or officer to repay the amount
if it is ultimately determined by a court of competent jurisdiction that he, she or it is not entitled to be indemnified by us.
Our amended and restated articles of incorporation
provides that we shall indemnify directors and officers to the fullest extent permitted by the NRS. Our amended and restated articles
of incorporation also provide a limitation of liability such that no director or officer shall be personally liable to us or any
of our stockholders to the fullest extent permitted by the NRS.
Insofar as indemnification for liabilities
arising under the Securities Act of 1933, as amended (the “Securities Act”) may be permitted to directors, officers
and controlling persons of ours under Nevada law or otherwise, we have been advised that the opinion of the SEC is that such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event a claim for indemnification
against such liabilities (other than payment by us for expenses incurred or paid by a director, officer or controlling person of
ours in successful defense of any action, suit, or proceeding) is asserted by a director, officer or controlling person in connection
with the securities being registered, we will, unless in the opinion of our legal counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by our company is against
public policy in the Securities Act and will be governed by the final adjudication of such issue.
Item 16. Exhibits and Financial Statement Schedules.
The exhibits listed in the accompanying
Exhibit Index are filed or incorporated by reference as part of this Registration Statement.
Item 17. Undertakings.
The undersigned Registrant 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 of 1933;
(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 Securities and Exchange Commission (the “Commission”)
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and
(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 (i),
(ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act of 1933, 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.
(4) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
(i) If the Registrant is relying
on Rule 430B:
(A) Each prospectus filed by the
Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(B) Each prospectus required to
be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to
an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in
the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
Provided, however
, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior
to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part
of the registration statement or made in any such document immediately prior to such effective date.
(ii) If the registrant is subject
to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other
than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to
be part of and included in the registration statement as of the date it is first used after effectiveness.
Provided, however
, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such date of first use.
The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of 1933, each filing of its annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant
to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant 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 Registrant will, unless in the
opinion of its counsel the issue 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 of 1933 and will be governed by
the final adjudication of such issue.
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-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in Clarence, New York, on this day of November 1, 2017.
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22nd CENTURY GROUP, INC.
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By:
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/s/
Henry Sicignano, III
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Henry Sicignano, III
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President, Chief Executive Officer and Director
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Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated below on November
1, 2017. Each person whose signature appears below constitutes and appoints Henry Sicignano III and John T. Brodfuehrer, and each
of them individually, his/her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him/her
and in his/her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and any additional registration statement to be filed pursuant to Rule 462(b) under the Securities
Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, 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 to be done in connection therewith, as fully to all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either
of them, may lawfully do or cause to be done by virtue hereof.
Signature
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Title
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/s/ Henry Sicignano, III
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Chief Executive Officer and Director (Principal
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Henry Sicignano, III
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Executive Officer)
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/s/ John T. Brodfuehrer
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Chief Financial Officer (Principal Financial and
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John T. Brodfuehrer
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Accounting Officer)
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/s/ Nora B. Sullivan
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Director
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Nora B. Sullivan
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/s/ Joseph Alexander Dunn, Ph.D.
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Director
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Joseph Alexander Dunn, Ph.D.
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/s/
James W. Cornell
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Director
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James W. Cornell
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/s/
Richard M. Sanders
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Director
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Richard M. Sanders
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EXHIBIT INDEX
Exhibit
Number
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Document Description
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(4.1)
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Amended and Restated Articles of Incorporation (incorporated herein by reference to Exhibit 3.2 of the Company’s Annual Report on Form 10-K for the year ended September 30, 2010).
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(4.1.1)
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Certificate of Amendment to Articles of Incorporation (incorporated by reference from Appendix A to the Company’s definitive proxy statement filed March 4, 2014).
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(4.2)
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Amended and Restated Bylaws of the Company (incorporated herein by reference to Exhibit 3.2 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2014 filed with the Commission on January 30, 2014).
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(4.2.1)
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Amendment No. 1 to Amended and Restated Bylaws of the Company (incorporated herein by reference to Exhibit 3.2 of the Company’s Form 8-K filed with the Commission on April 28, 2015).
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(4.3)
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22nd Century Group, Inc. 2014 Omnibus Incentive Plan, as amended and restated (incorporated by reference from Appendix A to the Company’s definitive proxy statement filed with the Commission on March 17, 2017)
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(4.4)
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Form of Common Stock Purchase Warrant (incorporated herein by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed with the Commission on December 14, 2011).
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(4.5)
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Form of Common Stock Purchase Warrant (incorporated herein by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the Commission on November 13, 2012)
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(4.6)
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Form of Common Stock Purchase Warrant (incorporated herein by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the Commission on June 19, 2017)
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(5.1)
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Opinion of Foley & Lardner LLP (including consent of counsel).
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(10.1)
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Registration Rights Agreement, dated September 17, 2014, by and between 22nd Century Group, Inc. and Crede CG III, Ltd. (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed on September 18, 2014).
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(10.2)
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Form of Warrant Exercise Agreement (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed on June 19, 2017).
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(23.1)
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Consent of Foley & Lardner LLP (filed as part of Exhibit (5)).
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(23.2)
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Consent of Freed Maxick CPAs, P.C.
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(24)
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Powers of Attorney (included on signature page).
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