As filed with the Securities and Exchange Commission on July
21, 2020
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
|
98-0468420
|
(State or other jurisdiction of incorporation
or organization)
|
(I.R.S. Employer Identification No.)
|
8560 Main Street, Suite 4
Williamsville, New York 14221
(716) 270-1523
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
James A. Mish
Chief Executive Officer
22nd Century Group, Inc.
8560 Main Street, Suite 4
Williamsville, New York 14221
(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.
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, a 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 ¨
|
Accelerated filer x
|
|
|
Non-accelerated
filer ¨
|
Smaller reporting company x
|
|
|
|
Emerging growth company ¨
|
|
|
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
|
CALCULATION OF REGISTRATION FEE
Title of each class of
securities to be registered
|
Amount
to
Be
Registered
|
Proposed
Maximum
Aggregate Offering Price
|
Amount
of
Registration Fee
|
Debt Securities
Common Stock, $0.00001 par value
Preferred Stock, $0.00001 par value
Warrants
Subscription Rights
Securities Purchase Contracts
Units(1)
Common Stock issuable upon the exercise of previously
issued and outstanding Warrants(6)
Total
|
(2)(3)
(2)(3)
(2)(3)
(2)(3)
(2)(3)
(2)(3)
(2)(3)
11,293,211
|
(3)(4)
(3)(4)
(3)(4)
(3)(4)
(3)(4)
(3)(4)
(3)(4)
-
$100,000,000(5)
|
(5)
(5)
(5)
(5)
(5)
(5)
(5)
(6)
$12,980(5)
|
(1)
|
Each unit consists of one or more shares of common stock, shares of preferred stock, debt securities, warrants, subscription rights, securities purchase contracts or any combination of the foregoing.
|
(2)
|
Includes an indeterminate aggregate principal amount and number of securities of each identified class of securities up to a proposed aggregate offering price of $100.0 million, which may be offered by the registrant from time to time in unspecified numbers and at indeterminate prices, and as may be issued upon conversion, redemption, repurchase, exchange or exercise of any securities registered hereunder, including any applicable anti-dilution provisions. This registration statement also covers delayed delivery contracts that may be issued by the registrant under which the party purchasing such contracts may be required to purchase any securities that may be offered hereunder. Such contracts may be issued together with the specific securities to which they relate. Securities registered hereunder to be sold by the registrant may be sold either separately or as units comprised of more than one type of security registered hereunder. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the securities being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the securities being registered hereunder as a result of stock splits, stock dividends or similar transactions.
|
(3)
|
Pursuant to General Instruction II.D of Form S-3, the table lists each of the classes of securities being registered and the aggregate proceeds to be raised but does not specify by each class information as to the amount to be registered, proposed maximum offering price per unit, and proposed maximum aggregate offering price.
|
(4)
|
If applicable, includes consideration to be received by the registrant for registered securities that are issuable upon exercise, conversion or exchange of other registered securities or that are issued in units.
|
(5)
(6)
|
Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(o) under the Securities Act.
In accordance with Rule 429 under the Securities Act, the prospectus
contained herein also relates to and will be used in connection with the issuance of up to an aggregate of 11,293,211 shares of
common stock issuable upon the exercise of certain of the registrant’s outstanding warrants, as more fully described herein.
If such warrants are exercised and such shares of common stock are issued and sold before the effective date of this registration
statement, such shares of common stock will not be included in the prospectus contained herein. The shares of common stock that
may be issued upon the exercise of the 11,293,211 warrants issued pursuant to a Form S-3 (Registration No. 333-215391) have not
yet expired with respect to such securities and have not yet been issued. Pursuant to Rule 415(a)(5)-(6), no additional filing
fee is required to be paid for these shares of common stock because the issuance of these shares were previously registered on
the aforementioned registration statement and the fees were paid in connection with such registration statement. Pursuant to Rule
416 under the Securities Act of 1933, as amended, these securities being registered hereunder as described in this footnote include
such indeterminate number of shares of common stock as may be issuable with respect to the securities being registered hereunder
as a result of stock splits, stock dividends or similar transactions.
|
Pursuant to Rule 429(a) under the Securities Act, the prospectus
included in this registration statement is a combined prospectus relating to 11,293,211 shares of common stock underlying certain
of the Registrant’s outstanding warrants, as more fully described herein. Pursuant to Rule 429(b), this registration statement,
upon effectiveness, also constitutes a post-effective amendment to the registrant’s registration statement on Form S-3 (Registration
No. 333-215391) previously filed with the Securities and Exchange Commission and declared effective on January 17, 2017 (the “Prior
Registration Statement”), which post-effective amendment to the Prior Registration Statement shall hereafter become effective
concurrently with the effectiveness of this registration statement and in accordance with Section 8(c) of the Securities Act of
1933.
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. We 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.
Subject to completion, dated July 21,
2020
PRELIMINARY PROSPECTUS
22nd Century Group, Inc.
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
WARRANTS
SUBSCRIPTION RIGHTS
SECURITIES PURCHASE CONTRACTS
UNITS
We may offer and sell from time to time
up to $100 million of any combination of the securities described in this prospectus, from time to time, in one or more offerings,
in amounts, at prices and on terms determined at the times of offerings.
This prospectus describes the general manner
in which our securities may be offered using this prospectus.
We will provide specific terms of the securities, including the offering prices, in one or more supplements to this prospectus.
The supplements may also add, update or change information contained in this prospectus. You should read this prospectus
and the prospectus supplement relating to the specific issue of securities carefully before you invest.
We
may offer the securities for sale directly to the purchasers or through one or more underwriters, dealers and agents to be designated
at a future date. The supplements to this prospectus will provide the specific terms of the plan of distribution.
This
prospectus also relates to the issuance of 11,293,211 shares of our common stock upon exercise of certain of our outstanding warrants
(as described herein the heading “Description of Capital Stock – Warrants”). Such outstanding warrants and shares
of common stock were registered under our prior Registration Statement on Form S-3 (Registration No. 333-215391) as declared effective
by the Securities and Exchange Commission (the “SEC”) on January 17, 2017 (the “Prior Registration Statement”).
Our common stock is listed on the NYSE American
under the symbol “XXII.” The last reported sale price of the common stock on July 20, 2020 was $0.79 per share. Each
prospectus supplement will indicate if the securities offered thereby will be listed on any securities exchange.
Investing
in our securities involves risk. Please read carefully the section entitled “Risk Factors” on Page 1 of this prospectus
and any similar section contained in the applicable prospectus supplement and/or other offering material concerning factors you
should consider before investing in our securities 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 __________, 2020.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
Unless
the context otherwise requires, references in this prospectus to “Company,” “22nd Century,” “we,”
“us,” “our,” and “ours” refer to 22nd Century Group, Inc. and its subsidiaries where the context
so requires.
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or
the SEC, using a “shelf” registration process. Under this shelf registration process, we may, from time to time, sell
the securities described in this prospectus, in one or more offerings, up to the maximum aggregate dollar amount $100.0 million.
This prospectus provides you with a general description of the securities that we may offer. Each time we offer securities,
we will provide a prospectus supplement and/or other offering material that will contain specific information about the terms
of that offering. This prospectus also relates to the issuance of up to 11,293,211 shares of common stock upon exercise of certain
of our outstanding warrants. The warrants and shares of common stock issuable thereunder were registered under the Prior Registration
Statement. The prospectus supplement and/or other offering material may also add, update or change information contained in this
prospectus. You should read this prospectus and the applicable prospectus supplement and any other offering material together
with the 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. We are not making offers to sell the securities in
any jurisdiction in which an offer is not authorized or in which the person making that offer is not qualified to do so or to
anyone to whom it is unlawful to make an offer. You should not assume that the information contained in this prospectus or 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.
RISK
FACTORS
Investing
in our securities involves risks. Before making an investment decision, you should carefully consider the risks and other information
we include or incorporate by reference in this prospectus and any prospectus supplement. In particular, you should consider the
risk factors described under the heading “Risk Factors” in our most recent Annual Report on Form 10-K and in
Item 1A of our Quarterly Report on Form 10-Q for the period ended March 31, 2020 under the heading “Risk Factors,”
as may be revised or supplemented by our subsequent Quarterly Reports on Form 10-Q or Current Reports of Form 8-K, each of
which are on file with the SEC and are incorporated herein by reference, and which may be amended, supplemented or superseded
from time to time by other reports we file with the SEC in the future. In addition to those risk factors, there may be additional
risks and uncertainties of which are not currently known to us or that we currently deem immaterial. Our business, financial
condition or results of operations could be materially adversely affected by any of these risks. The occurrence of any of
these risks might cause you to lose all or part of your investment in the offered securities. Additional risk factors may be included
in a prospectus supplement relating to a particular offering of securities.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
We
make forward-looking statements in this registration statement and may make such statements in future filings with the Securities
and Exchange Commission, or SEC. We may also make forward-looking statements in our press releases or other public or stockholder
communications. Our forward-looking statements are subject to risks and uncertainties and include information about our expectations
and possible or assumed future results of our operations. When we use words such as “may,” “might,” “will,”
“should,” “believe,” “expect,” “anticipate,” “estimate,” “continue,”
“could,” “plan,” “potential,” “predict,” “forecast,” “project,”
“intend,” or similar expressions, or make statements regarding our intent, belief, or current expectations, we are
making forward-looking statements.
These
forward-looking statements are neither promises nor guarantees of future performance due to a variety of risks and uncertainties,
many of which are beyond our control, which could cause actual results to differ materially from those indicated by these forward-looking
statements, including, without limitation, risks relating to:
|
·
|
The
impact of the COVID-19 pandemic on our business and operations;
|
|
|
|
|
·
|
Our
ability to monetize our intellectual property portfolio;
|
|
|
|
|
·
|
Our
ability to ability to achieve profitability;
|
|
|
|
|
·
|
Our
ability to manage our growth effectively;
|
|
·
|
The
lack of implementation of the plan by the U.S. Food and Drug Administration (“FDA”)
to regulate nicotine content in cigarettes;
|
|
|
|
|
·
|
Our
ability to obtain FDA authorization for our Modified Risk Tobacco Product;
|
|
|
|
|
·
|
Our
ability to gain market acceptance for our products;
|
|
|
|
|
·
|
Our
ability to prevail in litigation;
|
|
|
|
|
·
|
Our
ability to maintain our rights to our intellectual property; and
|
|
|
|
|
·
|
other
risks more fully discussed in the “Risk Factors” section in this prospectus,
the section of any accompanying prospectus supplement entitled “Risk Factors”
and the risk factors and cautionary statements described in other documents that we file
from time to time with the SEC, specifically under “Risk Factors” and elsewhere
in our most recent Annual Report on Form 10-K and subsequent Quarterly Reports on Form
10-Q.
|
We
claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act
of 1995 for all of our forward-looking statements. While we believe that our forward-looking statements are reasonable, you should
not place undue reliance on any such forward-looking statements, which are based on information available to us on the date of
this report or, if made elsewhere, as of the date made. Because these forward-looking statements are based on estimates and assumptions
that are subject to significant business, economic and competitive uncertainties, many of which are beyond our control or are
subject to change, actual results could be materially different. See “Risk Factors” in this prospectus for more information.
You should consider these factors and other cautionary statements made in this prospectus and in the documents we incorporate
by reference as being applicable to all related forward-looking statements wherever they appear in this prospectus and in the
documents incorporated by reference.
Other
factors not currently anticipated may also materially and adversely affect our results of operations, cash flows and financial
position. We do not undertake any obligation to update or alter any statements whether as a result of new information, future
events or otherwise, except as required by law.
OUR
COMPANY
Overview
We
are a plant biotechnology company focused on technology that allows us to alter the level of nicotine and other nicotinic alkaloids
in tobacco plants and the levels of cannabinoids in hemp/cannabis plants through genetic engineering and modern plant breeding
techniques. Our mission in tobacco is to reduce the harm caused by smoking by introducing adult smokers to our proprietary, Very
Low Nicotine Content tobacco and cigarette products. Our mission in hemp/cannabis is to develop proprietary varieties of hemp
with valuable cannabinoid profiles and other superior agronomic traits. We have a significant intellectual property portfolio
of issued patents and patent applications relating to both tobacco and hemp/cannabis plants. Our Annual Report on Form 10-K for
the year ended December 31, 2019 and subsequently filed Form 10-Qs provide additional information about our business, operations
and financial condition.
Corporate
Information
We
are a Nevada corporation incorporated in September 2005 and our corporate headquarters is located at 8560 Main Street, Suite 4,
Williamsville, New York 14221. 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
Unless
otherwise described in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities
for general corporate purposes, including potentially expanding existing businesses, acquiring businesses and investing in other
business opportunities. Pending such use, we may temporarily invest the net proceeds in short-term investments.
DILUTION
We
will set forth in a prospectus supplement the following information regarding any material dilution of the equity interests of
investors purchasing securities in an offering under this prospectus:
|
·
|
the
net tangible book value per share of our equity securities before and after the offering;
|
|
·
|
the
amount of the increase in such net tangible book value per share attributable to the
cash payments made by purchasers in the offering; and
|
|
·
|
the
amount of the immediate dilution from the public offering price which will be absorbed
by such purchasers.
|
SECURITIES
TO BE OFFERED
We
may offer, from time to time and in one or more offerings, debt securities, shares of common stock, shares of preferred stock,
warrants, subscription rights, securities purchase contracts and units. Set forth herein and below is a general description of
the securities that we may offer hereunder. We will set forth in the applicable prospectus supplement a specific description of
the securities that may be offered under this prospectus. The terms of the offering of securities, the initial offering price
and the net proceeds will be contained in the prospectus supplement and/or other offering material relating to such offering.
DESCRIPTION
OF DEBT SECURITIES
We have summarized below general terms and
conditions of the debt securities that we will offer and sell pursuant to this prospectus. When we offer to sell a particular series
of debt securities, we will describe the specific terms and conditions of the series in a prospectus supplement to this prospectus.
We will also indicate in the applicable prospectus supplement whether the general terms and conditions described in this prospectus
apply to the series of debt securities. The terms and conditions of the debt securities of a series may be different in one or
more respects from the terms and conditions described below. If so, those differences will be described in the applicable prospectus
supplement.
The debt securities will be our senior debt
securities and will be issued under an indenture between us and a trustee, a form of which is incorporated by reference into this
prospectus and attached as an exhibit to the registration statement of which this prospectus is a part. See “Where You Can
Find More Information.” We refer to this indenture as the “indenture.”
The following is a summary of some provisions
of the indenture. The following summary does not purport to be complete, and is subject to, and qualified in its entirety by reference
to, all of the provisions of the indenture, including the definitions of specified terms used in the indenture, and the debt securities.
We encourage you to read the indenture and the debt securities because they, and not this description, set forth your rights as
a holder of our debt securities. We will describe the particular terms of any debt securities in the prospectus supplement relating
to those debt securities. Parenthetical section references under this heading are references to sections in the indenture unless
we indicate otherwise.
General
We may offer the
debt securities from time to time in as many distinct series as we may determine. The indenture does not limit the amount of debt
securities that we may issue under that indenture. We may, without the consent of the holders of the debt securities of any series,
issue additional debt securities ranking equally with, and otherwise similar in all respects to, the debt securities of the series
(except for the public offering price and the issue date) so that those additional debt securities will be consolidated and form
a single series with the debt securities of the series previously offered and sold.
The debt securities
of each series will be issued in fully registered form without interest coupons. We currently anticipate that the debt securities
of each series offered and sold pursuant to this prospectus will be issued as global debt securities as described under “—Book-Entry;
Delivery and Form; Global Securities” and will trade in book-entry form only.
Debt securities
denominated in U.S. dollars will be issued in denominations of $2,000 and any integral multiple of $1,000 in excess thereof, unless
otherwise specified in the applicable prospectus supplement. If the debt securities of a series are denominated in a foreign or
composite currency, the applicable prospectus supplement will specify the denomination or denominations in which those debt securities
will be issued.
Unless otherwise
specified in the applicable prospectus supplement, we will repay the debt securities of each series at 100% of their principal
amount, together with any premium and accrued and unpaid interest thereon at maturity, except if those debt securities have been
previously redeemed or purchased and cancelled.
Unless otherwise
specified in the applicable prospectus supplement, the debt securities of each series will not be listed on any securities exchange.
Provisions of Indenture
The indenture
provides that debt securities may be issued under it from time to time in one or more series. For each series of debt securities,
this prospectus and the applicable prospectus supplement will describe the following terms and conditions of that series of debt
securities:
|
·
|
the title of the series;
|
|
·
|
the maximum aggregate principal amount, if any, established
for debt securities of the series, provided, however, that such amount may from time to time be increased by a board resolution;
|
|
·
|
the price or prices at which the debt securities will
be sold;
|
|
·
|
the person to whom any interest on a debt security of
the series will be payable, if other than the person in whose name that debt security (or one or more predecessor debt securities)
is registered at the close of business on the regular record date for such interest;
|
|
·
|
the date or dates on which the principal and premium,
if any, of any debt securities of the series will be payable or the method used to determine or extend those dates;
|
|
·
|
the rate or rates at which any debt securities of the
series will bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which
any such interest will accrue, or the method by which such date or dates shall be determined, the interest payment dates on which
any such interest will be payable and the regular record date, if any, for any such interest payable on any interest payment date,
or the method by which such date or dates shall be determined, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months, the right, if any, to extend or defer interest payments and the duration
of such extension or deferral;
|
|
·
|
the place or places where the principal of and any premium
and interest on any debt securities of the series will be payable, the place or places where the debt securities of such series
may be presented for registration of transfer or exchange, the place or places where notices and demands to or upon us in respect
of the debt securities of such series may be made and the manner in which any payment may be made;
|
|
·
|
the period or periods within which or the date or dates
on which, the price or prices at which, the currency or currency units in which, and the terms and conditions upon which any debt
securities of the series may be redeemed, in whole or in part, at our option and, if other than by a board resolution, the manner
in which any election by us to redeem the debt securities will be evidenced;
|
|
·
|
our obligation or right, if any, to redeem or purchase
any debt securities of the series pursuant to any sinking fund, amortization or analogous provisions or at the option of the holder
thereof and the period or periods within which, the price or prices at which, the currency or currency units in which, and the
terms and conditions upon which any debt securities of the series will be redeemed or purchased, in whole or in part, pursuant
to such obligation;
|
|
·
|
if other than denominations of $2,000 and any integral
multiple of $1,000 in excess thereof, the denominations in which any debt securities of the series will be issuable;
|
|
·
|
if other than the trustee, the identity of each security
registrar and/or paying agent;
|
|
·
|
if the amount of principal of or premium, if any, or
interest on any debt securities of the series may be determined with reference to a financial or economic measure or index or
pursuant to a formula, the manner in which such amounts will be determined;
|
|
·
|
if other than U.S. dollars, the currency, currencies
or currency units in which the principal of or premium, if any, or interest on any debt securities of the series will be payable
and the manner of determining the equivalent thereof in U.S. dollars for any purpose;
|
|
·
|
if the principal of or premium, if any, or interest on
any debt securities of the series is to be payable, at our election or the election of the holder thereof, in one or more currencies
or currency units other than that or those in which such debt securities are stated to be payable, the currency, currencies or
currency units in which the principal of or premium, if any, or interest on such debt securities as to which such election is
made will be payable, the periods within which or the dates on which and the terms and conditions upon which such election is
to be made and the amount so payable (or the manner in which such amount will be determined);
|
|
·
|
if the provisions of the indenture relating to satisfaction
and discharge thereof shall apply to the debt securities of that series as set forth therein, or if provisions for the satisfaction
and discharge of the indenture other than as set forth therein shall apply to the debt securities of that series;
|
|
·
|
if other than the entire principal amount thereof, the
portion of the principal amount of any debt securities of the series which will be payable upon declaration of acceleration of
the maturity thereof pursuant to the indenture or the method by which such portion shall be determined;
|
|
·
|
if the principal amount payable at the stated maturity
of any debt securities of the series will not be determinable as of any one or more dates prior to the stated maturity, the amount
which will be deemed to be the principal amount of such debt securities as of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which will be due and payable upon any maturity other than the stated maturity or which
will be deemed to be outstanding as of any date prior to the stated maturity (or, in any such case, the manner in which such amount
deemed to be the principal amount will be determined);
|
|
·
|
if other than by a board resolution, the manner in which
any election by us to defease any debt securities of the series pursuant to the indenture will be evidenced; whether any debt
securities of the series other than debt securities denominated in U.S. dollars and bearing interest at a fixed rate are to be
subject to the defeasance provisions of the indenture; or, in the case of debt securities denominated in U.S. dollars and bearing
interest at a fixed rate, if applicable, that the debt securities of the series, in whole or any specified part, will not be defeasible
pursuant to the indenture;
|
|
·
|
if applicable, that any debt securities of the series
shall be issuable in whole or in part in the form of one or more global securities and, in such case, the respective depositaries
for such global securities, the form of any legend or legends which shall be borne by any such global security in addition to
or in lieu of that set forth in the indenture and any circumstances in which any such global security may be exchanged in whole
or in part for debt securities registered, and any transfer of such global security in whole or in part may be registered, in
the name or names of persons other than the depositary for such global security or a nominee thereof;
|
|
·
|
any addition to, deletion from or change in the events
of default applicable to any debt securities of the series and any change in the right of the trustee or the requisite holders
of such debt securities to declare the principal amount thereof due and payable;
|
|
·
|
any addition to, deletion from or change in the covenants
applicable to debt securities of the series;
|
|
·
|
the terms of any right to convert or exchange debt securities
of such series into any other securities or property of ours or of any other corporation or person, and the additions or changes,
if any, to the indenture with respect to the debt securities of such series to permit or facilitate such conversion or exchange;
|
|
·
|
whether the debt securities of the series will be guaranteed
by any persons and, if so, the identity of such persons, the terms and conditions upon which such debt securities will be guaranteed
and, if applicable, the terms and conditions upon which such guarantees may be subordinated to other indebtedness of the respective
guarantors;
|
|
·
|
whether the debt securities of the series will be secured
by any collateral and, if so, the terms and conditions upon which such debt securities will be secured and, if applicable, upon
which such liens may be subordinated to other liens securing other indebtedness of us or of any guarantor;
|
|
·
|
whether the debt securities will be issued in a transaction
registered under the Securities Act and any restriction or condition on the transferability of the debt securities of such series;
|
|
·
|
the exchanges, if any, on which the debt securities may
be listed; and
|
|
·
|
any other terms of the debt securities of the series
(which terms will not be inconsistent with the provisions of the indenture, except as permitted thereunder).
|
Interest and Interest Rates
General
In the applicable
prospectus supplement, we will designate the debt securities of a series as being either debt securities bearing interest at a
fixed or floating rate of interest. Each debt security will begin to accrue interest from the date on which it is originally issued.
Interest on each such debt security will be payable in arrears on the interest payment dates set forth in the applicable prospectus
supplement and as otherwise described below and at maturity or, if earlier, the redemption date described below. Interest will
be payable to the holder of record of the debt securities at the close of business on the record date for each interest payment
date, which record dates will be specified in such prospectus supplement.
As used in the
indenture, the term “business day” means, with respect to debt securities of a series, unless otherwise specified in
the applicable prospectus supplement, any day, other than a Saturday or Sunday, that is not a day on which banking institutions
are authorized or obligated by law or executive order to close in the place where the principal of and premium, if any, and interest
on the debt securities are payable.
If any interest
payment date, redemption date, repayment date or stated maturity of a debt security, or any date on which a holder has the right
to convert such debt security, falls on a date that is not a business day, then payment of principal and premium, if any, or interest,
or the redemption price or conversion of such debt security, will be made on the next succeeding business day at such place of
payment with the same force and effect as if made on the interest payment date, redemption date or repayment date, or at the stated
maturity, or on such conversion date. No interest shall accrue for the period from and after any such interest payment date, redemption
date, repayment date, stated maturity or conversion date, as the case may be, to the date of such payment.
Optional Redemption
Redemption at Our Option
If specified in
the applicable prospectus supplement, we may elect to redeem all or part of the outstanding debt securities of a series from time
to time before the maturity date of the debt securities of that series. Upon such election, we will notify the trustee of the redemption
date and the principal amount of debt securities of the series to be redeemed. If less than all the debt securities of the series
are to be redeemed, the particular debt securities of that series to be redeemed will be selected by the trustee by such method
as the trustee deems fair and appropriate. If we shall so direct, debt securities registered in our name or the name of any of
our affiliates or subsidiaries shall not be included in the debt securities for redemption. The applicable prospectus supplement
will specify the redemption price for the debt securities to be redeemed (or the method of calculating such price), in each case
in accordance with the terms and conditions of those debt securities.
Notice of redemption
will be given to each holder of the debt securities to be redeemed not less than 15 nor more than 60 days prior to the date set
for such redemption (or within such period as otherwise specified as contemplated by the indenture for debt securities of a series).
This notice will identify the debt securities to be redeemed and will include the following information: the redemption date; the
redemption price (or the method of calculating such price); if less than all of the outstanding debt securities of such series
are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the particular
debt securities to be redeemed; the place or places where such debt securities are to be surrendered for payment of the redemption
price; and, if applicable, the CUSIP number of the debt securities to be redeemed.
By no later than
11:00 a.m. (New York City time) on the redemption date, we will deposit or cause to be deposited with the trustee or with a paying
agent (or, if we are acting as our own paying agent with respect to the debt securities being redeemed, we will segregate and hold
in trust as provided in the indenture) an amount of money sufficient to pay the aggregate redemption price of, and (except if the
redemption date shall be an interest payment date or the debt securities of such series provide otherwise) accrued interest on,
all of the debt securities or the part thereof to be redeemed on that date. On the redemption date, the redemption price will become
due and payable upon all of the debt securities to be redeemed, and interest, if any, on the debt securities to be redeemed will
cease to accrue from and after that date. Upon surrender of any such debt securities for redemption, we will pay those debt securities
surrendered at the redemption price together, if applicable, with accrued interest to the redemption date. If the redemption date
is after a regular record date and on or prior to the applicable interest payment date, the accrued and unpaid interest shall be
payable to the holder of the redeemed securities registered on the relevant regular record date.
Any debt securities
to be redeemed only in part must be surrendered at the office or agency established by us for such purpose, and we will execute,
and the trustee will authenticate and deliver to a holder without service charge, new debt securities of the same series and of
like tenor, of any authorized denominations as requested by that holder, in a principal amount equal to and in exchange for the
unredeemed portion of the debt securities that holder surrenders.
Repayment at Holder’s Option
If specified in
the applicable prospectus supplement, the holders of the debt securities of a series will have the option to elect repayment of
those debt securities by us prior to the stated maturity of the debt securities of that series at time or times and subject to
the conditions specified in the applicable prospectus supplement. If the holders of those debt securities have that option, the
applicable prospectus supplement will specify the optional repayment date or dates on which the debt security may be repaid and
the optional repayment price, or the method by which such price will be determined. The optional repayment price is the price at
which, together with accrued interest to the optional repayment date, the debt security may be repaid at the holder’s option
on each such optional repayment date.
Except as otherwise
may be provided by the terms of the debt securities, any tender of a debt security by the holder for repayment will be irrevocable
unless waived by us. Any repayment option of a holder may be exercised by the holder of debt securities for less than the entire
principal amount of the debt security; provided that the principal amount of the debt security remaining outstanding after repayment
will be an authorized denomination. Upon such partial repayment, the debt securities will be canceled and new debt securities for
the remaining principal amount will be issued in the name of the holder of the repaid debt securities.
If debt securities
are represented by a global security as described under “—Book-Entry; Delivery and Form; Global Securities,”
the securities depository for the global security or its nominee will be the holder of the debt security and, therefore, will be
the only person that can exercise a right to repayment. In order to ensure that the depository or its nominee will timely exercise
a right to repayment relating to a particular debt security, the beneficial owner of the debt security must instruct the broker
or other direct or indirect participant in the depository through which it holds an interest in the debt security to notify the
depository of its desire to exercise a right to repayment by the appropriate cut-off time for notifying the participant. Different
firms have different cut-off times for accepting instructions from their customers. Accordingly, you should consult the broker
or other direct or indirect participant through which you hold an interest in a debt security in order to ascertain the cut-off
time by which such an instruction must be given for timely notice to be delivered to the appropriate depository.
Payment and Transfer or Exchange
Principal of and
premium, if any, and interest on the debt securities of each series will be payable, and the debt securities may be exchanged or
transferred, at the office or agency maintained by us for such purpose. Payment of principal of and premium, if any, and interest
on a global security registered in the name of or held by The Depository Trust Company, or DTC, or its nominee will be made in
immediately available funds to DTC or its nominee, as the case may be, as the registered holder of such global security. If any
of the debt securities is no longer represented by a global security, payment of interest on certificated debt securities in definitive
form may, at our option, be made by check mailed directly to holders at their registered addresses. See “—Book-Entry;
Delivery and Form; Global Securities.”
A holder may transfer
or exchange any certificated debt securities in definitive form at the same location given in the preceding paragraph. No service
charge will be made for any registration of transfer or exchange of debt securities, but we may require payment of a sum sufficient
to cover any transfer tax or other similar governmental charge payable in connection therewith.
We are not required
to transfer or exchange any debt security selected for redemption for a period of 15 days before mailing of a notice of redemption
of the debt security to be redeemed.
The registered
holder of a debt security will be treated as the owner of it for all purposes.
All amounts of
principal of and premium, if any, or interest on the debt securities paid by us that remain unclaimed two years after such payment
was due and payable will be repaid to us, and the holders of such debt securities will thereafter look solely to us for payment.
Covenants
The indenture
sets forth limited covenants that will apply to each series of debt securities issued under the indenture, unless otherwise specified
in the applicable prospectus supplement. However, these covenants do not, among other things:
|
·
|
limit the amount of indebtedness or lease obligations that may be incurred by us and our subsidiaries;
|
|
·
|
limit our ability or that of our subsidiaries to issue, assume or guarantee debt secured by liens; or
|
|
·
|
restrict us from paying dividends or making distributions on our capital stock or purchasing or redeeming our capital stock.
|
Consolidation, Merger and Sale
of Assets
The indenture provides
that we may consolidate with or merge with or into any other person, and may sell, transfer, or lease or convey all or substantially
all of our properties and assets to another person; provided that the following conditions are satisfied:
|
·
|
we are the continuing entity, or the resulting, surviving or transferee person (the “Successor”) is a person (if
such person is not a corporation, then the Successor will include a corporate co-issuer of the debt securities) organized and existing
under the laws of the United States of America, any state thereof or the District of Columbia and the Successor (if not us) will
expressly assume, by supplemental indenture, all of our obligations under the debt securities and the indenture and, for each security
that by its terms provides for conversion, provide for the right to convert such security in accordance with its terms;
|
|
·
|
immediately after giving effect to such transaction, no default or event of default under the indenture has occurred and is
continuing; and
|
|
·
|
the trustee receives from us an officers’ certificate and an opinion of counsel that the transaction and such supplemental
indenture, as the case may be, complies with the applicable provisions of the indenture
|
If we consolidate
or merge with or into any other person or sell, transfer, lease or convey all or substantially all of our properties and assets
in accordance with the indenture, the Successor will be substituted for us in the indenture, with the same effect as if it had
been an original party to the indenture. As a result, the Successor may exercise our rights and powers under the indenture, and
we will be released from all our liabilities and obligations under the indenture and under the debt securities.
Any substitution
of the Successor for us might be deemed for federal income tax purposes to be an exchange of the debt securities for “new”
debt securities, resulting in recognition of gain or loss for such purposes and possibly certain other adverse tax consequences
to beneficial owners of the debt securities. Holders should consult their own tax advisors regarding the tax consequences of any
such substitution.
For purposes of
this covenant, “person” means any individual, corporation, partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other
entity.
Events of Default
Each of the following
events are defined in the indenture as an “event of default” (whatever the reason for such event of default and whether
or not it will be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental body) with respect to the debt securities of any series:
(1) default in
the payment of any installment of interest on any debt securities of such series for 30 days after becoming due;
(2) default in
the payment of principal of or premium, if any, on any debt securities of such series when it becomes due and payable at its stated
maturity, upon optional redemption, upon declaration or otherwise;
(3) default in
the performance, or breach, of any covenant or agreement of ours in the indenture with respect to the debt securities of such series
(other than a covenant or agreement, a default in the performance of which or a breach of which is elsewhere in the indenture specifically
dealt with or that has expressly been included in the indenture solely for the benefit of a series of debt securities other than
such series), which continues for a period of 90 days after written notice to us by the trustee or to us and the trustee by the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series;
(4) we pursuant
to or within the meaning of the Bankruptcy Law:
|
·
|
commence a voluntary case or proceeding;
|
|
|
|
|
·
|
consent to the entry of an order for relief against us in an involuntary case or proceeding;
|
|
|
|
|
·
|
consent to the appointment of a custodian of us or for all or substantially all of our property;
|
|
|
|
|
·
|
make a general assignment for the benefit of our creditors;
|
|
|
|
|
·
|
file a petition in bankruptcy or answer or consent seeking reorganization or relief;
|
|
|
|
|
·
|
consent to the filing of such petition or the appointment of or taking possession by a custodian; or
|
|
|
|
|
·
|
take any comparable action under any foreign laws relating to insolvency;
|
(5) a court of
competent jurisdiction enters an order or decree under any Bankruptcy Law that:
|
·
|
is for relief against us in an involuntary case, or adjudicates us insolvent or bankrupt;
|
|
|
|
|
·
|
appoints a custodian of us or for all or substantially all of our property; or
|
|
|
|
|
·
|
orders the winding-up or liquidation of us (or any similar relief is granted under any foreign laws);
|
and the order or decree remains unstayed
and in effect for 90 days; or
(6) any other
event of default provided with respect to debt securities of such series occurs.
“Bankruptcy Law” means Title
11, United States Code or any similar federal or state or foreign law for the relief of debtors. “Custodian” means
any custodian, receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
If an event of default with respect to debt
securities of any series (other than an event of default relating to certain events of bankruptcy, insolvency, or reorganization
of us) occurs and is continuing, the trustee by notice to us, or the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of such series by notice to us and the trustee, may, and the trustee at the request of these holders
will, declare the principal of and premium, if any, and accrued and unpaid interest on all the debt securities of such series to
be due and payable. Upon such a declaration, such principal, premium and accrued and unpaid interest will be due and payable immediately.
If an event of default relating to certain events of bankruptcy, insolvency, or reorganization of us occurs and is continuing,
the principal of and premium, if any, and accrued and unpaid interest on the debt securities of such series will become and be
immediately due and payable without any declaration or other act on the part of the trustee or any holders.
The holders of not less than a majority
in aggregate principal amount of the outstanding debt securities of any series may rescind a declaration of acceleration and its
consequences, if we have deposited certain sums with the trustee and all events of default with respect to the debt securities
of such series, other than the non-payment of the principal or interest which have become due solely by such acceleration, have
been cured or waived, as provided in the indenture.
An event of default for a particular series
of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the
indenture.
We are required to furnish the trustee annually
within 120 days after the end of our fiscal year a statement by one of our officers to the effect that, to the best knowledge of
such officer, we are not in default in the fulfillment of any of our obligations under the indenture or, if there has been a default
in the fulfillment of any such obligation, specifying each such default and the nature and status thereof.
No holder of any debt securities of any
series will have any right to institute any judicial or other proceeding with respect to the indenture, or for the appointment
of a receiver or trustee, or for any other remedy unless:
(1) an event of default has occurred and
is continuing and such holder has given the trustee prior written notice of such continuing event of default with respect to the
debt securities of such series;
(2) the holders of not less than 25% of
the aggregate principal amount of the outstanding debt securities of such series have requested the trustee to institute proceedings
in respect of such event of default;
(3) the trustee has been offered indemnity
reasonably satisfactory to it against its costs, expenses and liabilities in complying with such request;
(4) the trustee has failed to institute
proceedings 60 days after the receipt of such notice, request and offer of indemnity; and
(5) no direction inconsistent with such
written request has been given for 60 days by the holders of a majority in aggregate principal amount of the outstanding debt securities
of such series.
The holders of a majority in aggregate principal
amount of outstanding debt securities of a series will have the right, subject to certain limitations, to direct the time, method
and place of conducting any proceeding for any remedy available to the trustee with respect to the debt securities of that series
or exercising any trust or power conferred to the trustee, and to waive certain defaults. The indenture provides that if an event
of default occurs and is continuing, the trustee will exercise such of its rights and powers under the indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of
such person’s own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights
or powers under the indenture at the request of any of the holders of the debt securities of a series unless they will have offered
to the trustee security or indemnity satisfactory to the trustee against the costs, expenses and liabilities which might be incurred
by it in compliance with such request.
Notwithstanding the foregoing, the holder
of any debt security will have an absolute and unconditional right to receive payment of the principal of and premium, if any,
and interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement
of payment.
Modification and Waivers
Modification and
amendments of the indenture and the debt securities of any series may be made by us and the trustee with the consent of the holders
of not less than a majority in aggregate principal amount of the outstanding debt securities of that series affected thereby; provided,
however, that no such modification or amendment may, without the consent of the holder of each outstanding debt security of that
series affected thereby:
|
·
|
change the stated maturity of the principal of, or installment of interest on, any debt security;
|
|
·
|
reduce the principal amount of any debt security or reduce the amount of the principal of any debt security which would be
due and payable upon a declaration of acceleration of the maturity thereof or reduce the rate of interest on any debt security;
|
|
·
|
reduce any premium payable on the redemption of any debt security or change the date on which any debt security may or must
be redeemed;
|
|
·
|
change the coin or currency in which the principal of, premium, if any, or interest on any debt security is payable;
|
|
·
|
impair the right of any holder to institute suit for the enforcement of any payment on or after the stated maturity of any
debt security (or, in the case of redemption, on or after the redemption date);
|
|
·
|
reduce the percentage in principal amount of the outstanding debt securities, the consent of whose holders is required in order
to take certain actions;
|
|
·
|
reduce the requirements for quorum or voting by holders of debt securities in the indenture or the debt security;
|
|
·
|
modify any of the provisions in the indenture regarding the waiver of past defaults and the waiver of certain covenants by
the holders of debt securities except to increase any percentage vote required or to provide that certain other provisions of the
indenture cannot be modified or waived without the consent of the holder of each debt security affected thereby;
|
|
·
|
make any change that adversely affects the right to convert or exchange any debt security or decreases the conversion or exchange
rate or increases the conversion price of any convertible or exchangeable debt security, unless such decrease or increase is permitted
by the terms of the debt securities; or
|
|
·
|
modify any of the above provisions.
|
We and the trustee may, without the consent of any holders,
modify or amend the terms of the indenture and the debt securities of any series with respect to the following:
|
·
|
to add to our covenants for the benefit of holders of the debt securities of all or any series or to surrender any right or
power conferred upon us;
|
|
·
|
to evidence the succession of another person to, and the assumption by the successor of our covenants, agreements and obligations
under, the indenture pursuant to the covenant described under “—Covenants—Consolidation, Merger and Sale of Assets”;
|
|
·
|
to add any additional events of default for the benefit of holders of the debt securities of all or any series;
|
|
·
|
to add one or more guarantees for the benefit of holders of the debt securities;
|
|
·
|
to secure the debt securities pursuant to the covenants of the indenture;
|
|
·
|
to add or appoint a successor or separate trustee or other agent;
|
|
·
|
to provide for the issuance of additional debt securities of any series;
|
|
·
|
to establish the form or terms of debt securities of any series as permitted by the indenture;
|
|
·
|
to comply with the rules of any applicable securities depository;
|
|
·
|
to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
|
|
·
|
to add to, change or eliminate any of the provisions of the indenture in respect of one or more series of debt securities;
provided that any such addition, change or elimination (a) shall neither (1) apply to any debt security of any series created prior
to the execution of such supplemental indenture and entitled to the benefit of such provision nor (2) modify the rights of the
holder of any such debt security with respect to such provision or (b) shall become effective only when there is no debt security
described in clause (a)(1) outstanding;
|
|
·
|
to cure any ambiguity, omission, defect or inconsistency;
|
|
·
|
to change any other provision; provided that the change does not adversely affect the interests of the holders of debt securities
of any series in any material respect;
|
|
·
|
to supplement any of the provisions of the indenture to such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of debt securities pursuant to the indenture; provided that any such action shall not adversely affect
the interests of the holders of debt securities of such series or any other series of debt securities in any material respect;
|
|
·
|
to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the debt securities
may be listed or traded; and
|
|
·
|
to add to, change or eliminate any of the provisions of the indenture as shall be necessary or desirable in accordance with
any amendments to the Trust Indenture Act, provided that such action does not adversely affect the rights or interests of any holder
of debt securities in any material respect.
|
The holders of at least a majority in aggregate
principal amount of the outstanding debt securities of any series may, on behalf of the holders of all debt securities of that
series, waive compliance by us with certain restrictive provisions of the indenture. The holders of not less than a majority in
aggregate principal amount of the outstanding debt securities of a series may, on behalf of the holders of all debt securities
of that series, waive any past default and its consequences under the indenture with respect to the debt securities of that series,
except a default (1) in the payment of principal or premium, if any, or interest on debt securities of that series or (2) in
respect of a covenant or provision of the indenture that cannot be modified or amended without the consent of the holder of each
debt security of that series. Upon any such waiver, such default will cease to exist, and any event of default arising therefrom
will be deemed to have been cured, for every purpose of the indenture; however, no such waiver will extend to any subsequent or
other default or event of default or impair any rights consequent thereon.
Discharge, Defeasance and Covenant Defeasance
We may discharge certain obligations to
holders of the debt securities of a series that have not already been delivered to the trustee for cancellation and that either
have become due and payable or will become due and payable within one year (or scheduled for redemption within one year) by depositing
with the trustee, in trust, funds in U.S. dollars in an amount sufficient to pay the entire indebtedness including, but not limited
to, the principal and premium, if any, and interest to the date of such deposit (if the debt securities have become due and payable)
or to the maturity thereof or the redemption date of the debt securities of that series, as the case may be. We may direct the
trustee to invest such funds in U.S. Treasury securities with a maturity of one year or less or in a money market fund that invests
solely in short-term U.S. Treasury securities.
The indenture provides that we may elect
either (1) to defease and be discharged from any and all obligations with respect to the debt securities of a series (except
for, among other things, obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated,
destroyed, lost or stolen debt securities, to maintain an office or agency with respect to the debt securities and to hold moneys
for payment in trust) (“legal defeasance”) or (2) to be released from our obligations to comply with the restrictive
covenants under the indenture, and any omission to comply with such obligations will not constitute a default or an event of default
with respect to the debt securities of a series and clauses (3) and (6) under “—Events of Default”
will no longer be applied (“covenant defeasance”). Legal defeasance or covenant defeasance, as the case may be, will
be conditioned upon, among other things, the irrevocable deposit by us with the trustee, in trust, of an amount in U.S. dollars,
or U.S. government obligations, or both, applicable to the debt securities of that series which through the scheduled payment of
principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal or premium,
if any, and interest on the debt securities on the scheduled due dates therefor.
If we effect covenant defeasance with respect
to the debt securities of any series, the amount in U.S. dollars, or U.S. government obligations, or both, on deposit with the
trustee will be sufficient, in the opinion of a nationally recognized firm of independent accountants, to pay amounts due on the
debt securities of that series at the time of the stated maturity but may not be sufficient to pay amounts due on the debt securities
of that series at the time of the acceleration resulting from such event of default. However, we would remain liable to make payment
of such amounts due at the time of acceleration.
We will be required to deliver to the trustee
an opinion of counsel that the deposit and related defeasance will not cause the holders and beneficial owners of the debt securities
of that series to recognize income, gain or loss for federal income tax purposes. If we elect legal defeasance, that opinion of
counsel must be based upon a ruling from the U.S. Internal Revenue Service or a change in law to that effect.
We may exercise our legal defeasance option
notwithstanding our prior exercise of our covenant defeasance option.
Same-Day Settlement and Payment
Unless otherwise provided in the applicable
prospectus supplement, the debt securities will trade in the same-day funds settlement system of DTC until maturity or until we
issue the debt securities in certificated form. DTC will therefore require secondary market trading activity in the debt securities
to settle in immediately available funds. We can give no assurance as to the effect, if any, of settlement in immediately available
funds on trading activity in the debt securities.
Book-Entry; Delivery and Form; Global Securities
Unless otherwise specified in the applicable
prospectus supplement, the debt securities of each series will be issued in the form of one or more global debt securities, in
definitive, fully registered form without interest coupons, each of which we refer to as a “global security.” Each
such global security will be deposited with the trustee as custodian for DTC and registered in the name of a nominee of DTC in
New York, New York for the accounts of participants in DTC.
Investors may hold their interests
in a global security directly through DTC if they are DTC participants, or indirectly through organizations that are DTC participants.
Except in the limited circumstances described below, holders of debt securities represented by interests in a global security will
not be entitled to receive their debt securities in fully registered certificated form.
DTC has advised us as follows: DTC is a
limited-purpose trust company organized under New York Banking Law, a “banking organization” within the meaning of
the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the
New York Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A
of the Exchange Act. DTC was created to hold securities of institutions that have accounts with DTC (“participants”)
and to facilitate the clearance and settlement of securities transactions among its participants in such securities through electronic
book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates.
DTC’s participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. Access to DTC’s book-entry system is also available to others such as both U.S. and non-U.S.
securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship
with a participant, whether directly or indirectly.
Ownership of Beneficial Interests
Upon the issuance of each global security,
DTC will credit, on its book-entry registration and transfer system, the respective principal amount of the individual beneficial
interests represented by the global security to the accounts of participants. Ownership of beneficial interests in each global
security will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests
in each global security will be shown on, and the transfer of those ownership interests will be effected only through, records
maintained by DTC (with respect to participants’ interests) and such participants (with respect to the owners of beneficial
interests in the global security other than participants).
So long as DTC or its nominee is the registered
holder and owner of a global security, DTC or such nominee, as the case may be, will be considered the sole legal owner of the
debt security represented by the global security for all purposes under the indenture, the debt securities and applicable law.
Except as set forth below, owners of beneficial interests in a global security will not be entitled to receive certificated debt
securities and will not be considered to be the owners or holders of any debt securities represented by the global security. We
understand that under existing industry practice, in the event an owner of a beneficial interest in a global security desires to
take any actions that DTC, as the holder of the global security, is entitled to take, DTC would authorize the participants to take
such action, and that participants would authorize beneficial owners owning through such participants to take such action or would
otherwise act upon the instructions of beneficial owners owning through them. No beneficial owner of an interest in a global security
will be able to transfer such interest except in accordance with DTC’s applicable procedures, in addition to those provided
for under the indenture. Because DTC can only act on behalf of participants, who in turn act on behalf of others, the ability of
a person having a beneficial interest in a global security to pledge that interest to persons that do not participate in the DTC
system, or otherwise to take actions in respect of that interest, may be impaired by the lack of a physical certificate representing
that interest.
All payments on the debt securities represented
by a global security registered in the name of and held by DTC or its nominee will be made to DTC or its nominee, as the case may
be, as the registered owner and holder of the global security.
We expect that DTC or its nominee, upon
receipt of any payment of principal, premium, if any, or interest in respect of a global security, will credit participants’
accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global
security as shown on the records of DTC or its nominee. We also expect that payments by participants to owners of beneficial interests
in the global security held through such participants will be governed by standing instructions and customary practices as is now
the case with securities held for accounts for customers registered in the names of nominees for such customers. These payments,
however, will be the responsibility of such participants and indirect participants, and neither we, the trustee nor any paying
agent will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial
ownership interests in any global security or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests or for any other aspect of the relationship between DTC and its participants or the relationship between such
participants and the owners of beneficial interests in the global security.
Unless and until it is exchanged in whole
or in part for certificated debt securities, each global security may not be transferred except as a whole by DTC to a nominee
of DTC or by a nominee of DTC to DTC or another nominee of DTC. Transfers between participants in DTC will be effected in the ordinary
way in accordance with DTC rules and will be settled in same-day funds.
We expect that DTC will take any action
permitted to be taken by a holder of debt securities only at the direction of one or more participants to whose account the DTC
interests in a global security are credited and only in respect of such portion of the aggregate principal amount of the debt securities
as to which such participant or participants has or have given such direction. However, if there is an event of default under the
debt securities, DTC will exchange each global security for certificated debt securities, which it will distribute to its participants.
Although we expect that DTC will agree to
the foregoing procedures in order to facilitate transfers of interests in each global security among participants of DTC, DTC is
under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. None
of we, the underwriters or the trustee will have any responsibility for the performance or nonperformance by DTC or its participants
or indirect participants of their respective obligations under the rules and procedures governing their operations.
The indenture provides that the global securities
will be exchanged for debt securities in certificated form of like tenor and of an equal principal amount, in authorized denominations
in the following limited circumstances:
(1) DTC notifies us that it is unwilling
or unable to continue as depository or if DTC ceases to be eligible under the indenture and we do not appoint a successor depository
within 90 days;
(2) we determine that the debt securities
will no longer be represented by global securities and execute and deliver to the trustee an order to such effect; or
(3) an event of default with respect to
the debt securities will have occurred and be continuing.
These certificated debt securities will
be registered in such name or names as DTC will instruct the trustee. It is expected that such instructions may be based upon directions
received by DTC from participants with respect to ownership of beneficial interests in global securities.
The information in this section of this
prospectus concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be reliable, but
we do not take responsibility for this information.
Euroclear and Clearstream
If the depositary for a global security
is DTC, you may hold interests in the global security through Clearstream Banking, société anonyme, which
we refer to as “Clearstream,” or Euroclear Bank SA/NV, as operator of the Euroclear System, which we refer to as “Euroclear,”
in each case, as a participant in DTC. Euroclear and Clearstream will hold interests, in each case, on behalf of their participants
through customers’ securities accounts in the names of Euroclear and Clearstream on the books of their respective depositaries,
which in turn will hold such interests in customers’ securities in the depositaries’ names on DTC’s books.
Payments, deliveries,
transfers, exchanges, notices and other matters relating to the debt securities made through Euroclear or Clearstream must comply
with the rules and procedures of those systems. Those systems could change their rules and procedures at any time. We have no control
over those systems or their participants, and we take no responsibility for their activities. Transactions between participants
in Euroclear or Clearstream, on one hand, and other participants in DTC, on the other hand, would also be subject to DTC’s
rules and procedures.
Investors will
be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers, exchanges, notices and other transactions
involving any securities held through those systems only on days when those systems are open for business. Those systems may not
be open for business on days when banks, brokers and other institutions are open for business in the United States.
In addition, because
of time-zone differences, U.S. investors who hold their interests in the debt securities through these systems and wish on a particular
day, to transfer their interests, or to receive or make a payment or delivery or exercise any other right with respect to their
interests, may find that the transaction will not be effected until the next business day in Luxembourg or Brussels, as applicable.
Thus, investors who wish to exercise rights that expire on a particular day may need to act before the expiration date. In addition,
investors who hold their interests through both DTC and Euroclear or Clearstream may need to make special arrangements to finance
any purchase or sales of their interests between the U.S. and European clearing systems, and those transactions may settle later
than transactions within one clearing system.
Governing Law
The indenture
and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
Regarding the Trustee
We may from time to time maintain lines
of credit, and have other customary banking relationships, with the trustee under the indenture.
The indenture and provisions of the Trust
Indenture Act that are incorporated by reference therein contain limitations on the rights of the trustee, should it become one
of our creditors, to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any
such claim as security or otherwise. The trustee is permitted to engage in other transactions with us or any of our affiliates;
provided, however, that if it acquires any conflicting interest (as defined under the Trust Indenture Act), it must eliminate such
conflict or resign.
DESCRIPTION
OF CAPITAL STOCK
The following is a description of our
capital stock and certain provisions of our amended and restated articles of incorporation, amended and restated bylaws and certain
provisions of applicable law. The following is only a summary and is qualified by applicable law and by the provisions of our amended
and restated articles of incorporation and amended and restated bylaws, copies of which are included as exhibits to the registration
statement of which this prospectus forms a part. We are incorporated in the State of Nevada The rights of our stockholders are
generally covered by Nevada law and our amended and restated articles of incorporation and amended and restated bylaws. The terms
of our capital stock are therefore subject to Nevada law.
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 July 13, 2020, 138,854,193 shares of common stock were issued and outstanding and no shares of preferred stock
were issued and outstanding.
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 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 such 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:
|
·
|
decreasing the amount of earnings and assets available for distribution to holders of common stock;
|
|
·
|
restricting dividends on the common stock;
|
|
·
|
diluting the voting power of the common stock;
|
|
·
|
impairing the liquidation rights of the common stock; or
|
|
·
|
delaying, deferring or preventing changes in our control or management.
|
As of the date of this prospectus, there
were no shares of preferred stock outstanding.
Stock Options and Restricted Stock
As of July 13, 2020, we had outstanding
options to purchase a total of 7,423,696 shares of common stock at a weighted average exercise price of $1.49 per share. Of this
total, options to purchase 6,558,940 were vested and 864,756 remain unvested. As July 13, 2020, we had outstanding 2,942,504 shares
of restricted common stock or restricted stock units subject to vesting conditions. As of July 13, 2020, an additional 4,409,969
shares of common stock were available for future award grants under our stock incentive plan.
Warrants
This prospectus also relates to the issuance
of the 11,293,211 shares of common stock issuable upon exercise of the Company’s outstanding warrants, described below, which
were previously registered under the Prior Registration Statement. The material terms of these warrants are summarized below, which
summary is qualified in their entirety by reference to the form of warrant incorporated by reference as an exhibit to the registration
statement of which this prospectus is a part.
On November 25, 2019, we entered into a
warrant exercise agreement (the “Warrant Exercise Agreement”) with all of the holders (the “Exercising Holders”)
of our previously outstanding warrants to purchase up to 11,293,211 shares of common stock of the Company with an exercise price
of $2.15 per share (the "Original Warrants") whereby the Exercising Holders agreed to exercise all of the Original Warrants
at a reduced exercise price of $1.00 per share. In consideration for the Exercising Holders exercising their Original Warrants
for cash, the Company issued to each Exercising Holder a new warrant (each, a "New Warrant") to purchase shares of common
stock equal to the number of shares of common stock underlying the Original Warrants. The New Warrants provided for an exercise
price of $1.25 per share, become exercisable immediately and expire 5 years after the issuance date. On December 22, 2019, the
Company entered in to a Warrant Amendment Agreement with the holders of the New Warrants whereby the Company agreed to amend the
New Warrants to (i) reduce the exercise price of the New Warrants to $1.11 and (ii) to add a call provision whereby the Company
may call the New Warrants with prior notice to the holders for $0.001 per New Warrant (during which time the holders may exercise
the New Warrants) provided that the Company’s volume weighted average stock price exceeds $3.00 per share for ten consecutive
trading days and certain other conditions are satisfied.
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 New 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. This prospectus relates to the issuance of the 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 issuance or resale of the
shares issued upon exercise of such New Warrants is effective. If there is no effective registration statement, the New Warrants
may be exercised on a cashless basis.
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.
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, under any agreement, arrangement or understanding, whether or not in writing, with
the interested stockholder or any affiliate or associate of the interested stockholder, which has the immediate and proximate effect
of increasing the proportionate share of the outstanding shares of any class or series of voting shares or securities convertible
into voting shares of the Nevada corporation or any subsidiary of the Nevada corporation which is beneficially owned by the interested
stockholder or any affiliate or associate of the interested stockholder, except as a result of immaterial changes because of adjustments
of fractional shares; 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, as of any date, 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 at all times during the 90 days immediately preceding such date, 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 78.751 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 78.7502, any discretionary
indemnification, unless ordered by a court or advanced by the corporation in accordance with NRS Section 78.751(2), 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). Under NRS Section 78.751(2), 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.
DESCRIPTION
OF WARRANTS
We may issue other warrants in the future
for the purchase of debt securities, common stock, preferred stock, units or other securities. Warrants may be issued independently
or together with debt securities, common stock, preferred stock or units offered by any prospectus supplement and/or other offering
material and may be attached to or separate from any such offered securities. Each series of warrants will be issued under a separate
warrant agreement to be entered into between us and a bank or trust company, as warrant agent, provided that we may also act as
warrant agent and enter into warrant agreements directly with the purchasers of securities offered pursuant to this prospectus.
In each case, the terms of the warrants will be set forth in the prospectus supplement and/or other offering material relating
to the particular issue of warrants. The warrant agent, if any, will act solely as our agent in connection with the warrants and
will not assume any obligation or relationship of agency or trust for or with any holders of warrants or beneficial owners of warrants.
The following summary of certain provisions
of the warrants we may issue in the future does not purport to be complete and is subject to, and is qualified in its entirety
by reference to, all provisions of the warrant agreements.
Reference is made to the prospectus supplement
and/or other offering material relating to the particular issue of warrants offered pursuant to such prospectus supplement and/or
other offering material for the terms of and information relating to such warrants, including, where applicable:
|
·
|
the designation, aggregate principal amount, currencies, denominations and terms of the series of debt securities purchasable
upon exercise of warrants to purchase debt securities and the price at which such debt securities may be purchased upon such exercise;
|
|
|
|
|
·
|
the number of shares of common stock or preferred stock purchasable upon the exercise of warrants and the price at which such
number of shares of common stock or preferred stock may be purchased upon such exercise;
|
|
|
|
|
·
|
the designation and number of units of other securities purchasable upon the exercise of warrants to purchase other securities
and the price at which such number of units of such other securities may be purchased upon such exercise;
|
|
|
|
|
·
|
the date on which the right to exercise such warrants shall commence and the date on which such right shall expire;
|
|
|
|
|
·
|
U.S. federal income tax consequences applicable to such warrants;
|
|
|
|
|
·
|
the amount of warrants outstanding as of the most recent practicable date; and
|
|
|
|
|
·
|
any other terms of such warrants.
|
Warrants will be issued in registered form
only. The exercise price for warrants will be subject to adjustment in accordance with the applicable prospectus supplement and/or
other offering material.
Each warrant will entitle the holder thereof
to purchase such principal amount of debt securities or such number of shares of common stock, preferred stock, units or other
securities at such exercise price as shall in each case be set forth in, or calculable from, the prospectus supplement and/or other
offering material relating to the warrants, which exercise price may be subject to adjustment upon the occurrence of certain events
as set forth in such prospectus supplement and/or other offering material. After the close of business on the expiration date,
or such later date to which such expiration date may be extended by us, unexercised warrants will become void. The place or places
where, and the manner in which, warrants may be exercised shall be specified in the prospectus supplement and/or other offering
material relating to such warrants.
Prior to the exercise of any warrants to
purchase debt securities, common stock, preferred stock, units or other securities, holders of such warrants will not have any
of the rights of holders of the underlying securities, as the case may be, purchasable upon such exercise, including the right
to receive payments of principal of, premium, if any, or interest, if any, on the debt securities purchasable upon such exercise
or to enforce covenants in the applicable indenture, or to receive payments of dividends, if any, on the common stock purchasable
upon such exercise, or to exercise any applicable right to vote.
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase
debt securities, common stock, preferred stock, warrants, units other securities described in this prospectus or any combination
thereof. These subscription rights may be issued independently or together with any other security offered by us and may or may
not be transferable by the stockholder receiving the subscription rights in such offering. In connection with any offering of subscription
rights, we may enter into a standby arrangement with one or more underwriters or other investors pursuant to which the underwriters
or other investors may be required to purchase any securities remaining unsubscribed for after such offering.
To the extent appropriate, the applicable
prospectus supplement will describe the specific terms of the subscription rights to purchase shares of our securities offered
thereby, including the following:
|
·
|
the date of determining the stockholders entitled to the rights distribution;
|
|
|
|
|
·
|
the price, if any, for the subscription rights;
|
|
|
|
|
·
|
the exercise price payable for the debt securities, common stock, preferred stock, warrants, units or other securities upon
the exercise of the subscription right;
|
|
|
|
|
·
|
the number of subscription rights issued to each stockholder;
|
|
|
|
|
·
|
the amount of debt securities, common stock, preferred stock, warrants, units or other securities that may be purchased per
each subscription right;
|
|
|
|
|
·
|
any provisions for adjustment of the amount of securities receivable upon exercise of the subscription rights or of the exercise
price of the subscription rights;
|
|
|
|
|
·
|
the extent to which the subscription rights are transferable;
|
|
|
|
|
·
|
the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights
shall expire;
|
|
|
|
|
·
|
the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities;
|
|
|
|
|
·
|
the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of
subscription rights;
|
|
|
|
|
·
|
any applicable federal income tax considerations; and
|
|
|
|
|
·
|
any other terms of the subscription rights, including the terms, procedures and limitations relating to the transferability,
exchange and exercise of the subscription rights.
|
DESCRIPTION
OF SECURITIES PURCHASE CONTRACTS
We may issue securities purchase contracts,
which consist of contracts obligating holders to purchase from us, and obligating us to sell to the holders, a specified number
of shares of common stock, preferred stock, warrants, units, debt securities or other securities at a future date or dates, which
we refer to in this prospectus as “securities purchase contracts.” The terms and conditions for any purchase and sale
rights or obligations, as well as the price per share of the underlying securities (if applicable) and the number or value of the
underlying securities, may be fixed at the time the securities purchase contracts are issued or may be determined by reference
to a specific formula set forth in the securities purchase contracts.
The securities purchase contracts may be
issued separately or as part of units, other securities or debt obligations of third parties, including U.S. treasury securities,
securing the holders’ obligations to purchase the securities under the securities purchase contracts. The securities purchase
contracts may require holders to secure their obligations under the securities purchase contracts in a specified manner. The securities
purchase contracts also may require us to make periodic payments to the holders thereof or vice versa, and those payments may be
unsecured or refunded on some basis.
The securities purchase contracts, and,
if applicable, collateral or depositary arrangements, relating to the securities purchase contracts, will be filed with the SEC
in connection with the offering of securities purchase contracts. The prospectus supplement and/or other offering material relating
to a particular issue of securities purchase contracts will describe the terms of those securities purchase contracts, including
the following:
|
·
|
if applicable, a discussion of material U.S. federal income tax considerations; and
|
|
|
|
|
·
|
any other information we think is important about the securities purchase contracts.
|
DESCRIPTION
OF UNITS
As specified in the applicable prospectus
supplement, we may issue units consisting of one or more shares of common stock, shares of preferred stock, debt securities, warrants,
subscription rights and securities purchase contracts, or any combination of the foregoing.
The applicable prospectus supplement will
specify the following terms of the units:
|
·
|
the terms of the underlying securities comprising the units, including whether and under what circumstances the underlying
securities may be traded separate of the units;
|
|
|
|
|
·
|
a description of the terms of any unit agreement governing the units (if any);
|
|
|
|
|
·
|
if appropriate, a discussion of material U.S. federal income tax considerations; and
|
|
|
|
|
·
|
a description of the provisions for the payment, settlement, transfer or exchange of the units.
|
PLAN OF
DISTRIBUTION
We may sell securities in any one or more
of the following ways from time to time: (i) through agents; (ii) to or through underwriters; (iii) through brokers or dealers;
(iv) directly to purchasers, including through a specific bidding, auction or other process; (v) upon the exercise of subscription
rights that may be distributed to our stockholders; or (vi) through a combination of any of these methods of sale. The applicable
prospectus supplement and/or other offering material will contain the terms of the transaction, name or names of any underwriters,
dealers, agents and the respective amounts of securities underwritten or purchased by them, the initial public offering price of
the securities, and the applicable agent’s commission, dealer’s purchase price or underwriter’s discount. Any
dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and compensation received
by them on resale of the securities may be deemed to be underwriting discounts.
Any initial offering price, dealer purchase
price, discount or commission may be changed from time to time.
The securities may be distributed from time
to time in one or more transactions, at negotiated prices, at a fixed price or fixed prices (that may be subject to change), at
market prices prevailing at the time of sale, in at-the-market offerings, at various prices determined at the time of sale or at
prices related to prevailing market prices.
Offers to purchase securities may be solicited
directly by us or by agents designated by us from time to time. Any such agent may be deemed to be an underwriter, as that term
is defined in the Securities Act, of the securities so offered and sold.
If underwriters are utilized in the sale
of any securities in respect of which this prospectus is being delivered, such securities will be acquired by the underwriters
for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at fixed
public offering prices or at varying prices determined by the underwriters at the time of sale. Securities may be offered to the
public either through underwriting syndicates represented by managing underwriters or directly by one or more underwriters. If
any underwriter or underwriters are utilized in the sale of securities, unless otherwise indicated in the applicable prospectus
supplement and/or other offering material, the obligations of the underwriters are subject to certain conditions precedent, and
that the underwriters will be obligated to purchase all such securities if any are purchased.
If a dealer is utilized in the sale of the
securities in respect of which this prospectus is delivered, we will sell such securities to the dealer, as principal. The dealer
may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale. Transactions
through brokers or dealers may include block trades in which brokers or dealers will attempt to sell shares as agent but may position
and resell as principal to facilitate the transaction or in crosses, in which the same broker or dealer acts as agent on both sides
of the trade. Any such dealer may be deemed to be an underwriter, as such term is defined in the Securities Act, of the securities
so offered and sold.
Offers to purchase securities may be solicited
directly by us and the sale thereof may be made directly to institutional investors or others, who may be deemed to be underwriters
within the meaning of the Securities Act with respect to any resale thereof.
If so indicated in the applicable prospectus
supplement and/or other offering material, we may authorize agents and underwriters to solicit offers by certain institutions to
purchase securities at the public offering price set forth in the applicable prospectus supplement and/or other offering material
pursuant to delayed delivery contracts providing for payment and delivery on the date or dates stated in the applicable prospectus
supplement and/or other offering material. Such delayed delivery contracts will be subject only to those conditions set forth in
the applicable prospectus supplement and/or other offering material.
Agents, underwriters and dealers may be
entitled under relevant agreements to indemnification against certain liabilities, including liabilities under the Securities Act,
or to contribution with respect to payments which such agents, underwriters and dealers may be required to make in respect thereof.
The terms and conditions of any indemnification or contribution will be described in the applicable prospectus supplement and/or
other offering material.
We may also sell shares of our common stock
through various arrangements involving mandatorily or optionally exchangeable securities, and this prospectus may be delivered
in connection with those sales.
We may engage in at-the-market offerings
into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. To the extent that we make sales through
one or more underwriters or agents in at-the-market offerings, we will do so pursuant to the terms of a sales agency financing
agreement or other at-the-market offering arrangement between us and the underwriters or agents. If we engage in at-the-market
sales pursuant to any such agreement or arrangement, we will issue and sell our securities through one or more underwriters or
agents, which may act on an agency basis or a principal basis. During the term of any such agreement or arrangement, we may sell
securities on a daily basis in exchange transactions or otherwise as we agreement with the underwriters or agents. Any such agreement
or arrangement will provide that any securities sold will be sold at prices related to the then-prevailing market prices for our
securities. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this
time. Pursuant to the terms of the agreement or arrangement, we may agree to sell, and the relevant underwriters or agents may
agree to solicit offers to purchase blocks of our common stock. The terms of any such agreement or arrangement will be set forth
in more detail in the applicable prospectus supplement.
We may enter into derivative, sale or forward
sale transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement and/or other offering material indicates, in connection with those transactions,
the third parties may sell securities covered by this prospectus and the applicable prospectus supplement and/or other offering
material, including in short sale transactions and by issuing securities not covered by this prospectus but convertible into, or
exchangeable for or representing beneficial interests in such securities covered by this prospectus, or the return of which is
derived in whole or in part from the value of such securities. The third parties may use securities received under derivative,
sale or forward sale transactions, or securities pledged by us or borrowed from us or others to settle those sales or to close
out any related open borrowings of stock, and may use securities received from us in settlement of those transactions to close
out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and will be identified
in the applicable prospectus supplement (or a post-effective amendment) and/or other offering material.
Underwriters, broker-dealers or agents may
receive compensation in the form of commissions, discounts or concessions from us. Underwriters, broker-dealers or agents may also
receive compensation from the purchasers of shares for whom they act as agents or to whom they sell as principals, or both. Compensation
as to a particular underwriter, broker-dealer or agent might be in excess of customary commissions and will be in amounts to be
negotiated in connection with transactions involving shares. In effecting sales, broker-dealers may arrange for other broker-dealers
to participate in the resales.
Each series of securities will be a new
issue and, other than the common stock, which is listed on the NYSE American, will have no established trading market. We may elect
to list any series of securities on an exchange, and in the case of the common stock, on any additional exchange, but, unless otherwise
specified in the applicable prospectus supplement and/or other offering material, we shall not be obligated to do so. No assurance
can be given as to the liquidity of the trading market for any of the securities.
Agents, underwriters and dealers may engage
in transactions with, or perform services for us and our respective subsidiaries in the ordinary course of business.
Any underwriter may engage in overallotment,
stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act.
Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions
involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids
permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased
in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it
would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time. An underwriter may carry
out these transactions on the NYSE American, in the over-the-counter market or otherwise.
The place and time of delivery for securities
will be set forth in the accompanying prospectus supplement and/or other offering material for such securities.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. The SEC maintains an internet site that contains reports, proxy and
information statements and other information regarding issuers, including ours, that file electronically with the SEC. The public
can obtain any document that we file electronically with the SEC at www.sec.gov.
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 Section 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 Current Reports on Form 8-K filed January 3, 2020, January 13, 2020, May 1, 2020, May 5, 2020, May 12, 2020 and June 3, 2020; and
|
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 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 our principal executive offices at:
22nd Century Group, Inc.
8560 Main Street, Suite 4
Williamsville, New York 14221
(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.
LEGAL MATTERS
The validity of the securities offered by
this prospectus will be passed upon for us by Foley & Lardner LLP. The validity of the securities offered by this prospectus
will be passed upon for any underwriters or agents by counsel named in the applicable prospectus supplement. The opinions of Foley
& Lardner LLP and counsel for any underwriters or agents may be conditioned upon and may be subject to assumptions regarding
future action required to be taken by us and any underwriters, dealers or agents in connection with the issuance of any securities.
The opinions of Foley & Lardner LLP and counsel for any underwriters or agents may be subject to other conditions and assumptions,
as indicated in the prospectus supplement.
EXPERTS
The consolidated financial statements of
22nd Century Group, Inc. as of December 31, 2019 and 2018, 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.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other
Expenses of Issuance and Distribution.
The following table sets forth the expenses,
other than underwriting discounts and commissions, payable by us in connection with the sale of the securities being registered
hereby are currently anticipated as follows (all amounts are estimated except the SEC registration fee):
|
|
Amount to
be paid
|
|
SEC Registration Fee
|
|
$
|
12,980
|
|
Accounting Fees and Expenses
|
|
|
*
|
|
Legal Fees and Expenses
|
|
|
*
|
|
Miscellaneous Expenses (including any applicable listing fees, printing fees, and transfer agent fees and expenses)
|
|
|
*
|
|
Total
|
|
$
|
*
|
|
|
*
|
These fees and expenses depend on the securities offered and the number of issuances, and accordingly cannot be estimated at
this time and will be reflected in the applicable prospectus supplement.
|
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 78.751 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 78.7502, any discretionary
indemnification, unless ordered by a court or advanced by the corporation in accordance with NRS Section 78.751(2), 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). Under NRS Section 78.751(2), 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.
The exhibits listed in the following Exhibit
Index are filed as part of this Registration Statement.
EXHIBIT INDEX
*
|
If required, to be filed by amendment or under subsequent Current Report on Form 8-K.
|
**
|
To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939 and Rule 5b-3 thereunder.
|
Item 17. Undertakings.
|
(a)
|
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 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 this registration
statement or any material change to such information in this 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.
|
|
(5)
|
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.
|
|
(6)
|
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
|
|
(i)
|
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
|
|
(ii)
|
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
|
|
(iii)
|
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
|
|
(iv)
|
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
|
|
(b)
|
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of its annual reports pursuant to Section 13(a) or Section 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.
|
|
(h)
|
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 matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question as to 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.
|
|
|
|
|
(j)
|
The undersigned registrant hereby undertakes to file an application for the purpose of determining
the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules
and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
|
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, as amended, 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 the City of Williamsville, State of New York, on July 21, 2020.
|
22nd Century Group, Inc.
|
|
|
|
By:
|
/s/ James A. Mish
|
|
|
James A. Mish
|
|
|
Chief Executive Officer
|
POWER
OF ATTORNEY
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 July 21, 2020. Each person whose signature appears below constitutes and appoints James A. Mish and John Franzino, his
or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or
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
|
|
Title
|
|
|
|
/s/ James A. Mish
|
|
Chief Executive Officer
|
James A. Mish
|
|
(Principal Executive Officer)
|
|
|
|
/s/ John Franzino
|
|
Chief Financial Officer
|
John Franzino
|
|
(Principal Financial and Accounting Officer)
|
|
|
|
/s/ Nora B. Sullivan
|
|
Chairman of the Board of Directors
|
Nora B. Sullivan
|
|
|
|
|
|
/s/ Richard M. Sanders
|
|
Director
|
Richard M. Sanders
|
|
|
|
|
|
/s/ Roger D. O’Brien
|
|
Director
|
Roger D. O’Brien
|
|
|
|
|
|
/s/ Clifford B. Fleet
|
|
Director
|
Clifford B. Fleet
|
|
|
22nd Century (AMEX:XXII)
Historical Stock Chart
From Feb 2024 to Mar 2024
22nd Century (AMEX:XXII)
Historical Stock Chart
From Mar 2023 to Mar 2024