XXII 22nd Century Group Inc

 

 

As filed with the Securities and Exchange Commission on August 18, 2023.

File No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM S-8

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.)

 

500 Seneca Street, Suite 507, Buffalo, New York 14204
(Address of Principal Executive Office)( Zip Code)

 

 

AMENDED AND RESTATED 22nd CENTURY GROUP, INC. 2021 OMNIBUS INCENTIVE PLAN

(Full title of the plan)

 

Peter Ferola, Esq.

Chief Legal Officer

22nd Century Group, Inc.

500 Seneca Street, Suite 507,

Buffalo, New York 14204

(Name and address of agent for service)

 

(716) 270-1523

(Telephone Number, including area code, for agent for service)

 

Copy to:

John J. Wolfel, Esq.

Foley & Lardner LLP

One Independent Drive, Suite 1300

Jacksonville, Florida 32202

(904) 359-2000

 

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 ¨
Non-accelerated filer x	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 under Section 7(a)(2)(B) of the Securities Act. ¨

 

 

 

REGISTRATION OF ADDITIONAL SECURITIES

PURSUANT TO GENERAL INSTRUCTION E 

 

This Registration Statement relates solely to the registration of additional securities of the same class as other securities for which a Registration Statement on this form relating to an employee benefit plan is effective. Pursuant to Instruction E of Form S-8, this Registration Statement incorporates by reference the contents of the Registration Statements previously filed with respect to the Company’s 2021 Omnibus Incentive Plan on Form S-8 (Registration No. 333-256616).

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference

 

The Registrant hereby incorporates by reference into this Registration Statement the following:

 

	(a)	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);
	(b)	Our definitive proxy statement filed with the SEC on April 25, 2023;
	(c)	Our Quarterly Reports on Form 10-Q filed with the SEC on May 9, 2023 and August 14, 2023;
	(d)	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; April 21, 2023; June 21, 2023; July 6, 2023; July 7, 2023; and July 24, 2023;
	(e)	The description of our common stock contained in or incorporated into our Registration Statement on Form 8-A, filed August 12, 2021, and any amendment or report updating that description.

 

In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold (other than information deemed to have been “furnished” rather than “filed” in accordance with the Commission’s rules), shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective date of filing of such documents. Unless expressly incorporated into this Registration Statement, a report (or portion thereof) furnished on Form 8-K prior or subsequent to the date hereof shall not be incorporated by reference into this Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 8. Exhibits

 

Exhibit Number		Exhibit Description
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).
3.1.2		Certificate of Amendment to Restated Articles of Incorporation filed June 16, 2023 (incorporated by reference to Form 10-Q filed with the Commission on August 14, 2023)
3.1.3		Certificate of Change to Restated Articles of Incorporation filed June 30, 2023 (incorporated by reference to Form 10-Q filed with the Commission on August 14, 2023)

 

 

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).
3.2.1		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		Description of Securities Registered Pursuant to Section 12 (incorporated by reference to Exhibit 4.1 to the Company’s Form 10-K filed on March 1, 2022)
5.1		Opinion of Foley & Lardner LLP with respect to the legality of the shares being registered (filed herewith).
10.1		Amended and Restated 22nd Century Group, Inc. 2021 Omnibus Incentive Plan (incorporated by reference from Appendix B to the Company’s definitive proxy statement filed with the Commission on April 25, 2023)
10.2		Form of Executive RSU Award Agreement under 22nd Century Group, Inc. 2021 Omnibus Incentive Plan (incorporated by reference to exhibit 10.3 of the Company’s Current Report on Form 8-K filed with the Commission on May 21, 2021).
10.3		Form of Director RSU Award Agreement under 22nd Century Group, Inc. 2021 Omnibus Incentive Plan (incorporated by reference to exhibit 10.4 of the Company’s Current Report on Form 8-K filed with the Commission on May 21, 2021).
10.4		Form of Option Award Agreement under 22nd Century Group, Inc. 2021 Omnibus Incentive Plan (incorporated by reference to exhibit 10.2 of the Company’s Current Report on Form 8-K filed with the Commission on May 21, 2021).
23.1		Consent of Freed Maxick CPAs, P.C. (filed herewith).
23.2		Consent of Armanino LLP (filed herewith).
23.3		Consent of Foley & Lardner LLP (included in Exhibit 5.1).
24.1		Power of Attorney (included in signature page hereto).
107		Filing Fee Exhibit (filed herewith).

 

Documents incorporated by reference to filings made by 22nd Century Group, Inc. under the Securities Exchange Act of 1934 are under SEC File No. 001-3633

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in Buffalo, New York, on this 18th day of August, 2023.

 

	22ND CENTURY GROUP, INC.
	By:	John J. Miller
		Interim Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints John J. Miller and Peter Ferola, and each of them, as such person’s true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) and additions to this registration statement on Form S-8 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or such person’s substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of the 18th day of August, 2023.

 

Signature		Title
/s/ John J. Miller		Interim Chief Executive Officer (Principal Executive Officer)
John J. Miller
/s/ R. Hugh Kinsman		Chief Financial Officer (Principal Financial and Accounting Officer)
R. Hugh Kinsman
/s/ Nora B. Sullivan		Director
Nora B. Sullivan
/s/ James A. Mish		Director
James A. Mish
/s/ Richard M. Sanders		Director
Richard M. Sanders
/s/ Anthony Johnson		Director
Anthony Johnson
/s/ Lucille S. Salhany		Director
Lucille S. Salhany
/s/ Dr. Michael Koganov		Director
Dr. Michael Koganov
/s/ Andrew Arno		Director
Andrew Arno

 

 

 

Exhibit 5.1

 

ATTORNEYS AT LAW   ONE INDEPENDENT DRIVE, SUITE 1300 JACKSONVILLE, FLORIDA 32202-5017 P. O. BOX 240 JACKSONVILLE, FLORIDA 32201-0240 904.359.2000 TEL 904.359.8700 FAX www.foley.com

August 18, 2023

 

22nd Century Group, Inc. 500 Seneca Street, Suite 507 Buffalo, New York 14204

 

Re:       Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We are acting as securities counsel to 22nd Century Group, Inc. (the “Company”) in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”), under the Securities Act of 1933, as amended, for the registration of 233,334 shares (“Shares”) of common stock, par value $0.00001, issuable pursuant to the Amended and Restated 22nd Century Group, Inc. 2021 Omnibus Incentive Plan (the “Plan”). The common stock issuable pursuant to the Plan is referred to herein as the “Shares.”

 

In connection with this opinion, we have examined and relied upon such records, documents, certificates and other instruments as in our judgment are necessary or appropriate to form the basis for the opinions hereinafter set forth including, but not limited to: (i) the Registration Statement, including the Prospectus, and the exhibits (including those incorporated by reference) constituting a part of the Registration Statement; (ii) the Company’s Amended and Restated Articles of Incorporation and Bylaws, each as amended to date; (iii) the Plan; (iv) certain resolutions of the Board of Directors of the Company relating to the Plan, the issuance of the Shares under the Plan, and the registration of the Shares; and (v) such other proceedings, documents and records as we have deemed necessary or appropriate to enable us to render this opinion. In all such examinations, we have assumed the genuineness of signatures on original documents and the conformity to such original documents of all copies submitted to us as certified, conformed or photographic copies, and as to certificates of public officials, we have assumed the same to have been properly given and to be accurate. As to matters of fact material to this opinion, we have relied upon statements and representations of representatives of the Company and of public officials.

 

The opinions expressed herein are limited in all respects to the federal laws of the United States of America and the applicable provisions of the corporate law of the State of Nevada, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect which such laws may have on the opinions expressed herein.  This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.

 

Based upon and subject to the foregoing, we are of the opinion that the Shares are duly authorized and upon the issuance of the Shares as provided in the Plan, the Shares will be validly issued, fully paid and nonassessable.

 

We hereby consent to the inclusion of this opinion as Exhibit 5.1 in the Registration Statement. In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or regulations of the Securities and Exchange Commission promulgated thereunder.

 

/s/ Foley & Lardner LLP

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement (No. 333- ____) on Form S-8 of 22nd Century Group, Inc. of our report, dated March 9, 2023, appearing in the Annual Report on Form 10-K of 22nd Century Group, Inc. filed with the Securities and Exchange Commission on March 9, 2023.

 

/s/ FREED MAXICK CPAs, P.C

 

Buffalo, NY

August 18, 2023

 

 

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the use in this Registration Statement on Form S-8 filed by22nd Century Group, Inc. of our report dated July 19, 2022 relating to the combined consolidated financial statements of GVB Biopharma incorporated by reference in the Prospectus, which is part of this Registration Statement.

 

Armanino LLP

 

/s/ Armanino LLP

Woodland Hills, California

August 18, 2023

 

 

 

EXHIBIT 107

 

Calculation of Filing Fee Tables

 

Form S-8

(Form Type)

 

22nd Century Group, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

Security Type

Security Class Title

Fee Calculation   Rule

Amount Registered(1)

Proposed Maximum Offering Price Per Unit

Maximum Aggregate Offering Price

Fee Rate

Amount of Registration Fee

Equity

Common Stock, $0.00001 par value per share

Other(2)

233,334(3)

$2.07(2)

$483,001

$110.20 per $1,000,000

$54

Total Offering Amounts

$483,001

$54

Total Fee Offsets

—

Net Fee Due

$54

 

(1)	Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 (this “Registration Statement”) shall also cover any additional shares of 22nd Century Group, Inc.’s (the “Registrant”) common stock, par value of $0.00001 per share (“Common Stock”) that become issuable under the Registrant’s Amended and Restated 2021 Omnibus Incentive Plan, as amended (the “Plan”), by reason of any stock dividend, stock split, reverse stock split, recapitalization, reclassification, merger, split-up, reorganization, consolidation or other similar transaction effected without the Registrant’s receipt of consideration, which results in an increase in the number of shares of outstanding Common Stock.
(2)	Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rules 457(c) and (h) of the Securities Act of 1933, as amended, based upon the average of the high and low prices of Common Stock as reported on the Nasdaq Capital Market on August 16, 2023.
(3)	Represents 233,334 additional shares of Common Stock that were authorized for issuance under the Plan.

 

 

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