As filed with the Securities and Exchange Commission on April
24, 2023
Registration No. 333-271217
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT
NO. 1 to
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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22nd Century Group, Inc.
(Exact name of registrant as specified in its charter)
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Nevada
(State or other jurisdiction of incorporation or organization)
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98-0468420
(I.R.S. Employer Identification No.)
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500 Seneca Street, Suite 507
Buffalo, New York, 14204
(716) 270-1523
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive offices)
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R. Hugh Kinsman, Esq.
Chief Financial Officer
22nd Century Group, Inc.
500 Seneca Street, Suite 507,
Buffalo, New York 14204
(716) 270-1523
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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With a copy to:
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Flora Perez, Esq.
Greenberg Traurig, P.A.
401 East Las Olas Boulevard Suite 2000
Fort Lauderdale, Florida 33301
(954 )768-8210
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Peter Ferola, Esq.
Chief Legal Officer
22nd Century Group, Inc.
500 Seneca Street, Suite 507,
Buffalo, New York 14204
(716) 270-1523
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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:
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Large
accelerated filer o |
Accelerated
filer o |
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Non-accelerated
filer x |
Smaller
reporting company x |
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Emerging
growth company o |
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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. o |
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 April 24, 2023
PROSPECTUS
22nd Century Group, Inc.
5,675,000 Shares of Common Stock Issuable Upon Exercise of
Warrants
This prospectus relates to the resale, from time to time, of up to
5,675,000 shares (the “Shares”) of our common stock, $0.00001 par
value per share (“Common Stock”), by the selling stockholders
identified in this prospectus under the section “Selling
Stockholders” (the “Selling Stockholders”). The Shares covered by
this prospectus consist of 5,675,000 shares of Common Stock
issuable upon exercise of warrants to purchase Common Stock issued
to the Selling Stockholders in a private placement as described in
this propsectus (the “Warrants”).
On March 3, 2023, 22nd Century Group, Inc. (the “Company”)
consummated the closing of a private placement of Company
debentures and warrants (the “Private Placement”), pursuant to the
terms and conditions of the Securities Purchase Agreement, dated
March 3, 2023 (the “Securities Purchase Agreement”), by and among
the Company and certain accredited investors (the “Purchasers”).
Pursuant to the Securities Purchase Agreement, we granted certain
registration rights to the Purchasers with respect to the Shares
issuable upon exercise of their Warrants. The aggregate gross
proceeds to the Company from the Private Placement were
approximately $20,000,000, before deducting offering expenses
payable by the Company. In connection with the Private Placement,
on March 3, 2023, we also entered into a Subordinated Promissory
Note and a Warrant agreement with an existing lender (the
“Lender”). See “Private Placement of Securities and Warrant.” We
will not receive any proceeds from the sale of the Shares by the
Selling Stockholders under this prospectus. We will, however,
receive proceeds from any portion of the Warrants that are
exercised through the payment of their respective exercise price in
cash. We intend to use the proceeds, if any, for general corporate
purposes. The Selling Stockholders will bear all commissions and
discounts, if any, attributable to the sale of the Shares. We will
bear all costs, expenses and fees in connection with the
registration of the Shares.
The Selling Stockholders may offer such shares from time to time as
they may determine through public or private transactions or
through other means described in the section entitled “Plan of
Distribution” at prevailing market prices, at prices related to
prevailing market prices or at privately negotiated prices. This
prospectus does not necessarily mean that the Selling Stockholders
will offer or sell the Shares. We cannot predict when or in what
amounts the Selling Stockholders may sell any of the Shares offered
by this prospectus. Any shares of Common Stock subject to resale
hereunder will have been issued by us and acquired by the Selling
Stockholders prior to any resale of such shares pursuant to this
prospectus.
You should read this prospectus, any prospectus supplement and any
related free writing prospectus or amendment thereto carefully, as
well as any documents incorporated by reference, before you invest
in any of the securities being offered.
Our Common Stock is listed on the Nasdaq Capital Market under the
symbol “XXII.” The last reported sale price of the common stock on
April 6, 2023 was $0.72 per share.
Investing in our securities involves risk. Please read carefully
the section entitled “Risk Factors” on Page 7 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 April 24, 2023.
TABLE OF CONTENTS
ABOUT THIS
PROSPECTUS
This prospectus is part of a registration statement that we filed
with the U.S. Securities and Exchange Commission, or the SEC, using
a “shelf” registration process. Under the shelf registration
process, the Selling Stockholders may, from time to time, offer and
sell the Shares described in this prospectus in one or more
offerings. Information about the Selling Stockholders may change
over time. We will not receive any of the proceeds from the sale of
our Common Stock by the Selling Stockholders under this prospectus,
although we will receive proceeds from any portion of the Warrants
that are exercised through the payment of their respective exercise
price in cash.
We may also file a prospectus supplement or post-effective
amendment to the registration statement of which this prospectus
forms a part that may contain material information relating to
these offerings. The prospectus supplement or post-effective
amendment may also add, update, or change information contained in
this prospectus with respect to that offering. If there is any
inconsistency between the information in this prospectus and the
applicable prospectus supplement or post-effective amendment, you
should rely on the prospectus supplement or post-effective
amendment, as applicable. Before purchasing any securities, you
should carefully read this prospectus, any post-effective
amendment, and any applicable prospectus supplement, together with
the additional information described under the heading “Where
You Can Find More Information” and “Information Incorporated
by Reference.”
Neither we nor the Selling Stockholders have authorized anyone to
provide you with any information or to make any representations
other than those contained in or incorporated by reference into
this prospectus, any post-effective amendment, or any applicable
prospectus supplement prepared by or on behalf of us or to which we
have referred you. We and the Selling Stockholders take no
responsibility for and can provide no assurance as to the
reliability of any other information that others may give you. The
Selling Stockholders will not make an offer to sell these
securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this
prospectus, any post-effective amendment and any applicable
prospectus supplement to this prospectus is accurate only as of the
date on its respective cover. Our business, financial condition,
results of operations and prospects may have changed since those
dates. This prospectus contains, and any post-effective amendment
or any prospectus supplement may contain, market data and industry
statistics and forecasts that are based on independent industry
publications and other publicly available information. We believe
this information is reliable as of the applicable date of its
publication, however, we have not independently verified the
accuracy or completeness of the information included in or
assumptions relied on in these third-party publications. In
addition, the market and industry data and forecasts that may be
included in or incorporated by reference into this prospectus, any
post-effective amendment or any prospectus supplement may involve
estimates, assumptions and other risks and uncertainties and are
subject to change based on various factors, including those
discussed under the heading “Risk Factors” contained in this
prospectus, any post-effective amendment, the applicable prospectus
supplement and otherwise incorporated by reference herein.
Accordingly, investors should not place undue reliance on this
information.
We own or have rights to trademarks, trade names and service marks
that we use in connection with the operation of our business. In
addition, ourname, logos and website name and address are our
trademarks or service marks. Solely for convenience, in some cases,
the trademarks, trade names and service marks referred to in this
prospectus are listed without the applicable ®, ™ and SM symbols,
but we will assert, to the fullest extent under applicable law, our
rights to these trademarks, trade names and service marks. Other
trademarks, trade names and service marks appearing in this
prospectus are the property of their respective owners.
CAUTIONARY NOTE REGARDING
“FORWARD-LOOKING” INFORMATION
This registration statement and the information incorporated by
reference herein include “forward-looking statements” within the
meaning of Section 27A of the Securities Act and Section 21E of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”).
All statements, other than statements of historical fact, included
or incorporated by reference herein regarding our expectations,
beliefs, plans, objectives, prospects, financial condition,
assumptions or future events are forward-looking statements. You
can identify these statements by words such as “aim,” “anticipate,”
“assume,” “believe,” “could,” “due,” “estimate,” “expect,” “goal,”
“intend,” “may,” “objective,” “plan,” “potential,” “positioned,”
“predict,” “should,” “target,” “will,” “would” and other similar
expressions that are predictions of or indicate future events and
future trends. These forward-looking statements are based on
current expectations, estimates, forecasts and projections about
our business and the industry in which we operate and our
management’s beliefs and assumptions. These statements are not
guarantees of future performance or development and involve known
and unknown risks, uncertainties and other factors that are in some
cases beyond our control. All forward-looking statements are
subject to risks and uncertainties that may cause actual results to
differ materially from those that we expected, including the
following summary of risk factors:
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We
have had a history of losses and negative cash flows, and we may be
unable to achieve and sustain profitability and positive cash flows
from operations. |
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Our
competitors generally have, and any future competitors may have,
greater financial resources and name recognition than we do, and
they may therefore develop products or other technologies similar
or superior to ours, or otherwise compete more successfully than we
do. |
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Our
research and development process may not develop marketable
products, which would result in loss of our investment into such
process. |
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Our
ability to successfully integrate the operations of GVB Biopharma
into ours and achieve the expected synergies with the acquired
business. |
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We
may acquire or invest in other companies, which may divert our
management’s attention, result in additional dilution to our
stockholders, and consume resources that are necessary to sustain
our business or result in losses. |
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The
coronavirus pandemic (COVID-19) or another pandemic may cause a
variety of business disruptions and future business
risks. |
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The
failure of our information systems to function as intended or their
penetration by outside parties with the intent to corrupt them
could result in business disruption, litigation and regulatory
action, and loss of revenue, assets, or personal or confidential
data (cybersecurity). |
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We
may be unsuccessful at commercializing our Very Low Nicotine
Content “VLNC” tobacco as a Modified Exposure
Cigarette. |
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The
manufacturing of tobacco products subjects us to significant
governmental regulation and the failure to comply with such
regulations could have a material adverse effect on our business
and subject us to substantial fines or other regulatory
actions. |
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We
may become subject to litigation related to cigarette smoking
and/or exposure to environmental tobacco smoke, or ETS, which could
severely impair our results of operations and
liquidity. |
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The
loss of a significant customer for whom we manufacture tobacco
products could have an adverse impact on our results of
operation. |
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Product
liability claims, product recalls, or other claims could cause us
to incur losses or damage our reputation. |
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The
FDA could force the removal of our products from the U.S.
market. |
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Negative
press from being in the hemp/cannabis space could have a material
adverse effect on our business, financial condition, and results of
operations. |
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Any
business-related cannabinoid production is dependent on laws
pertaining to the hemp/cannabis industry. |
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Certain
of our proprietary rights have expired or may expire or may not
otherwise adequately protect our intellectual property, products
and potential products, and if we cannot obtain adequate protection
of our intellectual property, products and potential products, we
may not be able to successfully market our products and potential
products. |
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We
license certain patent rights from third-party owners. If such
owners do not properly maintain or enforce the patents underlying
such licenses, our competitive position and business prospects
could be harmed. |
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Our
stock price may be highly volatile and could decline in
value. |
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We
are a named defendant in certain litigation matters, including
federal securities class action lawsuits and derivative complaints;
if we are unable to resolve these matters favorably, then our
business, operating results and financial condition may be
adversely affected. |
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Future
sales of our common stock will result in dilution to our common
stockholders. |
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We do
not expect to declare any dividends on our common stock in the
foreseeable future. |
You also should carefully review the risk factors and cautionary
statements described in the other documents we file or furnish from
time to time with the SEC, including our Annual Reports on Form
10-K, Quarterly Reports on Form 10-Q and Current Reports on Form
8-K. The forward-looking statements included in this prospectus and
any other offering material, or in the documents incorporated by
reference into this prospectus and any other offering material, are
made only as of the date of the prospectus and any other offering
material or the incorporated document.
We do not assume any obligation to update any forward-looking
statements. We disclaim any intention or obligation to update or
revise any forward-looking statement, whether as a result of new
information, future events or otherwise.
Prospectus Summary
The following summary highlights basic information about us,
this offering, and selected information contained elsewhere in or
incorporated by reference into this prospectus supplement. This
summary is not complete and does not contain all of the information
that you should consider before deciding whether to invest in our
common stock. You should review this entire prospectus supplement
and the accompanying prospectus carefully, including our
consolidated financial statements and other information
incorporated by reference in this prospectus supplement and the
accompanying prospectus, before making an investment decision. In
addition, please read the “Risk Factors” section beginning on page
7 of this prospectus supplement.
Overview
22nd Century Group, Inc. is a
leading biotechnology company focused on utilizing advanced
alkaloid plant technologies to improve health and wellness with
reduced nicotine tobacco, hemp/cannabis and hops. We use modern
plant breeding technologies, including genetic engineering,
gene-editing, and molecular breeding to deliver solutions for the
consumer goods and pharmaceutical industries by creating new,
proprietary plants with optimized alkaloid and flavonoid profiles
as well as improved yields and valuable agronomic traits. Our
mission in tobacco products is dedicated to reduce the harms of
smoking by commercializing our proprietary, very low nicotine
content (“VLNC”) tobacco plants and cigarette products. We received
the first and only Food and Drug Administration (“FDA”) Modified
Risk Tobacco Product (“MRTP”) authorization of a combustible
cigarette in December 2021. Beginning in April 2022, we
launched our proprietary VLN® reduced nicotine
cigarettes, first through a pilot program conducted in select
Circle K stores in and around Chicago, Illinois. Following our
successful pilot program, we initiated an ongoing state-by-state,
region-by-region rollout strategy.
Our mission in hemp/cannabis is to develop and monetize proprietary
varieties of hemp with valuable cannabinoid and terpene profiles
and other superior agronomic traits. We are a global scale provider
of cannabinoid ingredients and Active Pharmaceutical Ingredients
(“API”), as well as a contract development and manufacturing
organization (“CDMO”) provider of hemp-derived consumer products.
In hops, our mission is to
leverage our experience with tobacco and hemp/cannabis, a close hop
plant relative, to accelerate the development of proprietary
specialty hop varieties with valuable traits, for potential
applications in life sciences and consumer products.
We have a significant
intellectual property portfolio of issued patents and patent
applications relating to both tobacco and hemp/cannabis plants and
have further resources directed towards creating and securing
additional intellectual property pertaining to all three
franchises. We continue to prioritize research and development
activities to achieve our strategic and investment
priorities.
Our Annual Report on Form 10-K for the year ended
December 31, 2022 and the subsequent reports filed pursuant to
the Exchange Act provide additional information about our business,
operations and financial condition.
Corporate Information
We are a Nevada corporation and our corporate headquarters is
located at 500 Seneca Street, Suite 507, Buffalo, New York
14204. Our telephone number is (716) 270-1523. Our internet address
is www.xxiicentury.com. We do not incorporate the information on
our website into this prospectus supplement, and you should not
consider it to be a part of this prospectus supplement or the
accompanying prospectus. Our web site address is included as an
inactive textual reference only.
Private Placement of Securities and Warrants (“Private
Placement”)
Securities Purchase Agreement
On March 3, 2023, the Company entered into a Securities Purchase
Agreement (the “Securities Purchase Agreement”) with each of the
purchasers party thereto (each, including its successors and
assigns, a “Purchaser” and collectively, the “Purchasers”) and JGB
Collateral, LLC, a Delaware limited liability company, as
collateral agent for the Purchasers (the “Agent”). Pursuant to the
Securities Purchase Agreement, the Company agreed to sell to the
Purchasers (i) 7% Original Issue Discount Senior Secured Debentures
(the “Debentures”) with an aggregate principal amount of
$21,052,632 and (ii) warrants to purchase up to 5,000,000 shares of
the Company’s common stock, par value $0.00001 per share (the
“Common Stock”), for an exercise price of $1.275 per share, a 50%
premium to the VWAP on the closing date (the “JGB Warrants”),
subject to adjustments as set forth in the JGB Warrants, for a
total purchase price of $20,000,000. The JGB Warrants are
exercisable beginning on September 3, 2023 and expire on September
3, 2028. The Securities Purchase Agreement contains customary
representations, warranties and covenants.
Omnia Subordinated Promissory Note and Warrant
On March 3, 2023, the Company executed a Subordinated Promissory
Note (the “Subordinated Note”) with a principal amount of
$2,864,767 in favor of Omnia Ventures, LP (the “Lender” and
together with the Purchasers, the “Selling Stockholders”). The
Subordinated Note refinanced the 12% Secured Promissory Note with a
principal amount of $1,000,000 dated as of October 29, 2021 payable
to the Lender and the 12% Secured Promissory Note with a principal
amount of $1,500,000 dated as of January 14, 2022 payable to the
Lender.
In connection with the Subordinated Note, the Company issued to
Omnia, warrants to purchase up to 675,000 shares of the Company’s
Common Stock (the “Omnia Warrant” and together with the JGB
Warrants, the “Warrants”) for an exercise price of $0.855 per
share, subject to adjustments as set forth in the Omnia Warrant.
The Omnia Warrant is exercisable beginning on September 3, 2023 and
expires on September 3, 2028.
For more information see the section entitled “Private Placement
of Securities and Warrants.”
The Offering
| Issuer |
22nd
Century Group, Inc. |
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| Shares
of Common Stock offered by the Selling Stockholders |
Up to
5,675,000 shares (the “Shares”). |
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|
| Shares
of Common Stock outstanding prior to this offering |
215,704,036
shares as of March 1, 2023 |
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|
| Use
of proceeds |
We
will not receive any proceeds from the resale of the Shares by the
Selling Stockholders in this offering. We will, however, receive
proceeds from any portion of the Warrants that are exercised
through the payment of their respective exercise price in cash. For
additional information, refer to the section entitled “Use of
Proceeds.” |
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|
| Terms
of this offering |
The
Selling Stockholders may sell, transfer or otherwise dispose of any
or all of the Shares offered by this prospectus from time to time
on Nasdaq or any other stock exchange, market or trading facility
on which the Shares are traded, or in private transactions. Th
Shares may be offered and sold or otherwise disposed of by the
Selling Stockholders at fixed prices, market prices prevailing at
the time of sale, prices related to prevailing market prices, or
privately negotiated prices. See the section entitled “Plan of
Distribution.” |
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|
| Risk
factors |
An
investment in our common stock involves a high degree of risk. See
“Risk Factors” beginning on page 7 of this prospectus, the “Risk
Factors” section in our most recent Annual Report on Form 10-K
and any subsequent Quarterly Reports filed on Form 10-Q, and
any amendment or update thereto reflected in subsequent filings
with the SEC, which are incorporated by reference herein, and other
information included in this prospectus supplement, the
accompanying prospectus and the documents incorporated by reference
in this prospectus supplement and the accompanying prospectus for a
discussion of factors you should carefully consider before deciding
to invest in our common stock. |
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|
| Market
for our common stock |
Our
Common Stock is traded on
Nasdaq under the symbol “XXII.” |
RISK
FACTORS
Investing in our securities involves certain 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 as may be
revised or supplemented by our subsequent Quarterly Reports on Form
10-Q or Current Reports on 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 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.
USE
OF PROCEEDS
All proceeds from the resale of the Shares offered by this
prospectus will belong to the Selling Stockholders. We will not
receive any proceeds from the resale of the Shares by the Selling
Stockholders. We will, however, receive proceeds from any portion
of the Warrants that are exercised through the payment of their
respective exercise price in cash. We intend to use the proceeds,
if any, for general corporate purposes.
The Selling Stockholders will pay any underwriting fees, discounts,
selling commissions, stock transfer taxes and certain legal
expenses incurred by such Selling Stockholder in disposing of its
Shares of Common Stock, and we will bear all other costs, fees and
expenses incurred in effecting the registration of the securities
covered by this prospectus, including, without limitation, all
registration and filing fees, Nasdaq listing fees and fees and
expenses of our counsel and our independent registered public
accountants.
Private placement of
SECURITIES
JCB Private Placement
On March 3, 2023, the Company entered into a Securities Purchase
Agreement with the Purchasers, pursuant to which the Company agreed
to sell to the Purchasers (i) Debentures with an aggregate
principal amount of $21,052,632 and (ii) the JGB Warrants, for a
total purchase price of $20,000,000. The Securities Purchase
Agreement contains customary representations, warranties and
covenants. The transactions contemplated by the Securities Purchase
Agreement were consummated on March 3, 2023.
Debentures
The Debentures bear interest at a rate of 7% per annum, payable
monthly in arrears as of the last trading day of each month and on
the maturity date. The Debentures mature on March 3, 2026. At the
Company’s election, subject to certain conditions, interest can be
paid in cash, shares of the Company’s common stock, or a
combination thereof. The Debentures are subject to an exit payment
equal to 5% of the original principal amount, or $1,052,632,
payable on the maturity date or the date the Debentures are paid in
full (the “Exit Payment”). Any time after, March 3, 2024, the
Company may irrevocably elect to redeem all of the then outstanding
principal amount of the Debentures for cash in an amount equal to
the entire outstanding principal balance, including accrued and
unpaid interest, the Exit Payment and a prepayment premium in an
amount equal to 3% of the outstanding principal balance as of the
prepayment date (collectively, the “Prepayment Amount”). Upon the
entry into a definitive agreement that would effect a change in
control (as defined in the Debentures) of the Company, the Agent
may require the Company to prepay the outstanding principal balance
in an amount equal to the Prepayment Amount. Commencing on March 3,
2024, at its option, the holder of a Debenture may require the
Company to redeem 2% of the original principal amount of the
Debentures per calendar month which amount may at the Company’s
election, subject to certain exceptions, be paid in cash, shares of
the Company’s common stock, or a combination thereof.
The Debentures contain customary representations, warranties and
covenants including among other things and subject to certain
exceptions, covenants that restrict the Company from incurring
additional indebtedness, creating or permitting liens on assets,
making or holding any investments, repaying outstanding
indebtedness, paying dividends or distributions and entering into
transactions with affiliates. In addition, the Company is required
to maintain at least $7,500,000 on its balance sheet in a separate
account and maintain certain quarterly revenue targets. The number
of shares of Company Common Stock issuable under the Debentures is
subject to any limitations imposed by the relevant stock exchange
on which the Company’s Common Stock is traded unless shareholder
approval is obtained.
The Company’s obligations under the Debentures can be accelerated
upon the occurrence of certain customary events of default. In the
event of a default and acceleration of the Company’s obligations,
the Company would be required to pay the Prepayment Amount,
liquidated damages and other amounts owing in respect thereof
through the date of acceleration.
JGB Warrants
The JGB Warrants are exercisable for five years from September 3,
2023, at an exercise price of $1.275 per share, a 50% premium to
the VWAP on the closing date, subject, with certain exceptions, to
adjustments in the event of stock splits, dividends, subsequent
dilutive offerings and certain fundamental transactions, as more
fully described in the JGB Warrant.
The Company is obligated to register the shares of Company Common
Stock issuable upon exercise of the JGB Warrants pursuant to the
terms of the Purchase Agreement.
Omnis Private Placement
Subordinated Promissory Note
On March 3, 2023, the Company executed the Subordinated Note with a
principal amount of $2,864,767 in favor of the Lender. The
Subordinated Note refinanced the 12% Secured Promissory Note with a
principal amount of $1,000,000 dated as of October 29, 2021 payable
to the Lender and the 12% Secured Promissory Note with a principal
amount of $1,500,000 dated as of January 14, 2022 payable to the
Lender, which were assumed by the Company in connection with the
acquisition of GVB Biopharma.
Under the terms of the Subordinated Note, the Company is obligated
to make PIK Interest. The PIK Interest accrues at a rate of 26.5%
per annum, payable monthly. The Company is not permitted to prepay
all or any portion of the outstanding balance on the Subordinated
Note prior to maturity. The Subordinated Note includes customary
event of default provisions. The Subordinated Note is subordinated
to the Debenture pursuant to a Subordination Agreement between the
Company, the Agent and Lender.
Warrant
In connection with the Subordinated Note, the Company issued to
Lender, the Omnia Warrant. The Omnia Warrant is exercisable
beginning on September 3, 2023 and expire on September 3, 2028, at
an exercise price of $0.855 per share, subject, with certain
exceptions, to adjustments in the event of stock splits, dividends,
subsequent dilutive offerings and certain fundamental transactions,
as more fully described in the Omnia Warrant.
Selling Stockholders
This prospectus relates to the resale, from time to time, of up to
5,675,000 shares of our Common Stock, by the Selling Stockholders
listed below. The Shares covered by this prospectus include (i) up
to 675,000 shares of Common Stock issuable to the Lender upon
exercise of the Omnia Warrants and (ii) up to 5,000,000 shares of
Common Stock issuable to the Purchasers upon exercise of the JGB
Warrants pursuant to the Securities Purchase Agreement.
In accordance with the terms of Securities Purchase Agreement
entered into with the Purchasers, this prospectus generally covers
the resale of the maximum number of shares of Common Stock issuable
pursuant to the Warrants, determined as if the Warrants were
exercised, as applicable, in full as of the trading day immediately
preceding the date this registration statement was initially filed
with the SEC, without regard to any limitations on exercise, as
applicable, in the Warrants. The fifth column assumes the sale of
all of the Shares offered by the Selling Stockholders pursuant to
this prospectus.
Under the terms of the Debentures and Warrants, neither the
Purchasers nor the Lender may be issued Shares under the Debentures
or each of the Purchasers’ or Lender’s respective Warrants to the
extent such issuance would cause any of the Purchasers or the
Lender, together with their respective affiliates and attribution
parties, to beneficially own a number of shares of Common Stock
which would exceed 9.99% of our then outstanding Common Stock
following such exercise. The number of shares in the second column
does not reflect this limitation. The Selling Stockholders may sell
all, some or none of their shares in this Offering. See “Plan of
Distribution.”
The following table sets forth, as of the date of this prospectus,
the name of the Selling Stockholders, the aggregate number of
shares of Common Stock beneficially owned, the aggregate number of
Shares of Common Stock that the Selling Stockholders may offer
pursuant to this prospectus and the number of shares of Common
Stock beneficially owned by the Selling Stockholders after the sale
of the securities offered hereby.
|
Name
of Selling Stockholder(1) |
|
Number of Shares
of Common Stock Beneficially Owned
Prior
to Offering(2)
|
|
|
Percentage
of Common
Stock Beneficially Owned
Prior to
Offering
(3)(4)
|
|
|
Maximum Number of
Shares of Common Stock
to be Sold
Pursuant to this
Prospectus(5)
|
|
|
Number of Shares of
Common Stock
Beneficially Owned
After Offering(3)
|
|
|
Percentage
of Common
Stock Beneficially Owned
After
Offering
(4)
|
|
|
JGB Capital, L.P. |
|
|
— |
|
|
|
— |
|
|
|
375,000 |
|
|
|
— |
|
|
|
* |
|
|
JGB Capital Offshore Ltd. |
|
|
— |
|
|
|
— |
|
|
|
1,750,000 |
|
|
|
— |
|
|
|
* |
|
|
JGB Partners, L.P. |
|
|
— |
|
|
|
— |
|
|
|
2,875,000 |
|
|
|
— |
|
|
|
1.3 |
% |
|
Omnia Ventures, Inc. |
|
|
1,127,639 |
|
|
|
* |
|
|
|
675,000 |
|
|
|
1,127,639 |
|
|
|
* |
|
*Less than 1%.
|
(1) |
Information
concerning named Selling Stockholders or future transferees,
pledgees, assignees, distributees, donees or successors-in-interest
of or from any such stockholder or others who later hold any
Selling Stockholders’ interests will be set forth in supplements to
this prospectus, absent circumstances indicating that the change is
material. In addition, post-effective amendments to the
registration statement of which this prospectus forms a part will
be filed to disclose any material changes to the plan of
distribution from the description in the final
prospectus. |
|
(2) |
Does
not include shares issuable upon exercise of the Warrants, as the
Warrants are not exercisable within 60 days of March 1,
2023. |
|
|
|
|
(3) |
Beneficial
ownership is determined in accordance with the rules and
regulations of the SEC. In computing the number of shares
beneficially owned by a person and the percentage ownership of that
person, securities that are currently convertible or exercisable
into shares of our Common Stock, or convertible or exercisable into
shares of our Common Stock within 60 days of March 1, 2023, are
deemed outstanding. Such shares, however, are not deemed
outstanding for the purposes of computing the percentage ownership
of any other person. Amounts reported in the fifth column assumes
that the Selling Stockholders will sell all of the Shares offered
pursuant to this prospectus. |
|
|
|
|
(4) |
Based
on 215,704,036 shares of Common Stock outstanding as of March 1,
2023. |
|
|
|
|
(5) |
Includes
the maximum number of Shares issuable upon exercise of the
Warrants, which Shares are being registered by the registration
statement of which this prospectus forms a part. |
PLAN
OF DISTRIBUTION
The Selling Stockholder of the securities and any of its pledgees,
assignees and successors-in-interest may, from time to time, sell
any or all of their securities covered hereby on the Nasdaq or any
other stock exchange, market or trading facility on which the
securities are traded or in private transactions. These sales may
be at fixed or negotiated prices. A Selling Stockholder may use any
one or more of the following methods when selling securities:
The Selling Stockholder may use any one or more of the following
methods when disposing of their shares of our Common Stock:
|
· |
ordinary brokerage
transactions and transactions in which the broker-dealer solicits
purchasers; |
|
· |
block
trades in which the broker-dealer will attempt to sell the shares
as agent, but may position and resell a portion of the block as
principal to facilitate the transaction; |
|
· |
purchases by a
broker-dealer as principal and resale by the broker-dealer for its
account; |
|
· |
an
exchange distribution in accordance with the rules of the
applicable exchange; |
|
· |
privately negotiated
transactions; |
|
· |
settlement of short
sales; |
|
· |
in
transactions through broker-dealers that agree with the Selling
Stockholder to sell a specified number of such shares at a
stipulated price |
|
· |
through the writing or
settlement of options or other hedging transactions, whether
through an options exchange or otherwise; |
|
· |
a
combination of any such methods of sale; and |
|
· |
any
other method permitted pursuant to applicable law. |
The Selling Stockholder may also sell securities under Rule 144 or
any other exemption from registration under the Securities Act, if
available, rather than under this prospectus. Broker-dealers
engaged by the Selling Stockholder may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholder (or, if any
broker-dealer acts as agent for the purchaser of securities, from
the purchaser) in amounts to be negotiated, but, except as set
forth in a supplement to this prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in
compliance with FINRA Rule 2121; and in the case of a principal
transaction a markup or markdown in compliance with FINRA Rule
2121.
In connection with the sale of the securities or interests therein,
the Selling Stockholder may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the securities in the course of hedging
the positions they assume. The Selling Stockholder may also sell
securities short and deliver these securities to close out their
short positions, or loan or pledge the securities to broker-dealers
that in turn may sell these securities. The Selling Stockholder may
also enter into option or other transactions with broker-dealers or
other financial institutions or create one or more derivative
securities which require the delivery to such broker-dealer or
other financial institution of securities offered by this
prospectus, which securities such broker-dealer or other financial
institution may resell pursuant to this prospectus (as supplemented
or amended to reflect such transaction).
The Selling Stockholder and any broker-dealers or agents that are
involved in selling the securities may be deemed to be
“underwriters” within the meaning of the Securities Act in
connection with such sales. In such event, any commissions received
by such broker-dealers or agents and any profit on the resale of
the securities purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Each Selling
Stockholder has informed the Company that it does not have any
written or oral agreement or understanding, directly or indirectly,
with any person to distribute the securities. The Company is
required to pay certain fees and expenses incurred by the Company
incident to the registration of the securities. The Company has
agreed to indemnify the Selling Stockholder against certain losses,
claims, damages and liabilities, including liabilities under the
Securities Act.
We agreed to use commercially reasonable efforts to keep the
registration statement of which this prospectus forms a part
effective until the earlier of (i) the expiration of the JGB
Warrants and (ii) the date that all of the JGB Warrant Shares have
been disposed of by the Selling Stockholders or could be disposed
of pursuant to Rule 144 without restriction. The resale securities
will be sold only through registered or licensed brokers or dealers
if required under applicable state securities laws. In addition, in
certain states, the resale securities covered hereby may not be
sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the resale securities may not
simultaneously engage in market making activities with respect to
the Common Stock for the applicable restricted period, as defined
in Regulation M, prior to the commencement of the distribution. In
addition, the Selling Stockholder will be subject to applicable
provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of
purchases and sales of the Common Stock by the Selling Stockholder
or any other person. We will make copies of this prospectus
available to the Selling Stockholder and have informed them of the
need to deliver a copy of this prospectus to each purchaser at or
prior to the time of the sale (including by compliance with Rule
172 under the Securities Act).
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.
INCORPORATION BY
REFERENCE
We are “incorporating by reference” specified documents that we
file with the SEC, which means:
| |
· |
incorporated
documents are considered part of this prospectus; |
| |
· |
we
are disclosing important information to you by referring you to
those documents; and |
| |
· |
information
we file with the SEC will automatically update and supersede
information contained in this prospectus. |
We incorporate by reference the documents listed below and any
future filings we make with the SEC under 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
Annual Report on Form 10-K for the fiscal year ended December 31,
2022 filed with the SEC on March 9, 2023 (including the form
10-K/A filed on March 28,
2023); |
| |
· |
Our
Current Reports on Form 8-K filed with the SEC on
May 18, 2022 (including the Form 8-K/A filed on
July 20, 2022 and the Form 8-K/A filed on March 10, 2023),
March 3, 2023,
March 10, 2023,
March 31, 2023,
April 5, 2023 and
April 21, 2023; and |
Notwithstanding the foregoing, documents or portions thereof
containing information furnished under Items 2.02 and 7.01 of any
Current Report on Form 8-K, including the related exhibits under
Item 9.01, are not incorporated by reference in this prospectus.
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.
500 Seneca Street, Suite 507,
Buffalo, New York 14204
(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. You
should rely only on the information contained in this prospectus
(including information incorporated by reference therein) and any
free writing prospectus that we may authorize to be delivered to
you. We have not authorized anyone to provide you with different
information. If anyone provides you with different or inconsistent
information, you should not rely on it. You should not assume that
the information in this prospectus is accurate as of any date other
than the date on the front of those documents or that any document
incorporated by reference is accurate as of any date other than its
filing date. You should not consider this prospectus to be an offer
or solicitation relating to the securities in any jurisdiction in
which such an offer or solicitation relating to the securities is
not authorized. Furthermore, you should not consider this
prospectus to be an offer or solicitation relating to the
securities if the person making the offer or solicitation is not
qualified to do so, or if it is unlawful for you to receive such an
offer or solicitation.
LEGAL MATTERS
The validity of the securities offered by this prospectus will be
passed upon for us by Greenberg Traurig, P.A. The opinion of
Greenberg Traurig, P.A 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.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference to the Annual Report on Form 10-K for the
year ended December 31, 2022 have been so incorporated in reliance
on the report of Freed Maxick CPAs, P.C., an independent registered
public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
The combined consolidated
financial statements of GVB Biopharma, which appear in the
Company’s Current Report on Form 8-K/A filed with the Securities
and Exchange Commission on July 20, 2022, incorporated herein by
reference have been so incorporated in reliance on the report of
Armanino LLP, an independent registered public accounting
firm.
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 |
|
$ |
437.77 |
|
|
Accounting Fees and Expenses |
|
$ |
25,000 |
|
|
Legal Fees and Expenses |
|
$ |
35,000 |
|
|
Miscellaneous Expenses (including any applicable listing fees,
printing fees, and transfer agent fees and expenses) |
|
$ |
10,000 |
|
|
Total |
|
$ |
70,437.77 |
|
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
EXHIBIT
NUMBER |
|
DESCRIPTION |
|
|
|
|
|
2.1† |
|
Reorganization
and Acquisition Agreement dated May 13, 2022 (incorporated
herein by reference to Exhibit 2.1 of the Company’s
Form 8-K filed with the Commission on May 18,
2022) |
|
|
|
|
|
3.1 |
|
Amended
and Restated Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.2 of the
Company’s Annual Report on Form 10-K for the year ended
September 30, 2010 filed with the Commission on
December 1, 2010). |
|
|
|
|
|
3.1.1 |
|
Amendment
to Certificate of Incorporation of the Company (incorporated by
reference to Appendix A to the Company’s Definitive Proxy Statement
filed with the Commission on March 4, 2014). |
|
|
|
|
|
3.2 |
|
Amended
and Restated Bylaws of the Company (incorporated herein by
reference to Exhibit 3.2 of the Company’s Annual Report on
Form 10-K for the year ended December 31, 2014 filed with
the Commission on January 30, 2014). |
|
|
|
|
|
3.2.2 |
|
Amendment
No. 1 to Amended and Restated Bylaws of the Company
(incorporated herein by reference to Exhibit 3.2 of the
Company’s Form 8-K filed with the Commission on April 28,
2015). |
|
|
|
|
|
4.1 |
|
Form of
Warrant (incorporated by reference from Exhibit 4.1 to the
Company’s Form 8-K filed with the Commission on July 25,
2022) |
|
|
|
|
|
4.2 |
|
Form of
JGB Warrant (incorporated herein by reference to Exhibit 4.4
of the Company’s Form 10-K filed with the Commission on
March 9, 2023). |
|
|
|
|
|
4.3 |
|
Form of
Omnia Warrant (incorporated herein by reference to Exhibit 4.5
of the Company’s Form 10-K filed with the Commission on
March 9, 2023). |
|
|
|
|
|
4.4 |
|
Form
of Original Issue Discount Senior Secured Debentures dated March 3,
2023 (incorporated herein by reference to Exhibit 4.3 of the
Company’s 10-K filed with the Commission on March 9,
2023) |
|
|
|
|
|
5.1 |
|
Opinion
of Greenberg Traurig, P.A. (including consent of
counsel). |
| |
* |
If
required, to be filed by amendment or under subsequent Current
Report on Form 8-K. |
| |
† |
Schedules and other similar attachments have been omitted pursuant
to Item 601(b)(2) of Regulation S-K. The Company hereby
undertakes to furnish supplementally copies of any of the omitted
schedules and attachments upon request by the U.S. Securities and
Exchange Commission. |
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. |
| |
(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) above 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 report 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. |
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 Buffalo, state of New York, on April 24, 2023.
| |
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 April 11, 2023. Each person whose
signature appears below constitutes and appoints James A. Mish and
Peter Ferola, 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 |
| |
|
|
|
* |
|
Chief
Executive Officer and Director |
| James
A. Mish |
|
(Principal
Executive Officer) |
| |
|
|
|
* |
|
Chief
Financial Officer |
| R.
Hugh Kinsman |
|
(Principal
Financial and Accounting Officer) |
| |
|
|
|
* |
|
Director |
| Nora
B. Sullivan |
|
|
| |
|
|
|
* |
|
Director |
| Richard
M. Sanders |
|
|
| |
|
|
|
* |
|
Director |
| Roger
D. O’Brien |
|
|
| |
|
|
|
* |
|
Director |
| Clifford
B. Fleet |
|
|
| |
|
|
|
* |
|
Director |
| Dr. Michael
Koganov |
|
|
| |
|
|
|
* |
|
Director |
| Anthony
Johnson |
|
|
| |
|
|
|
* |
|
Director |
| Lucille
Salhany |
|
|
| *By: |
/s/ Peter
Ferola |
|
| |
Peter Ferola |
| |
Attorney-in-Fact |
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