As
filed with the Securities and Exchange Commission on February 5, 2025
Registration
No. 333-284644
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
22nd
CENTURY GROUP, INC.
(Exact
name of registrant as specified in its charter)
Nevada
(State
or other jurisdiction
of incorporation or organization) |
|
98-0468420
(I.R.S.
Employer
Identification No.) |
321
Farmington Rd
Mocksville,
NC 27028
(336)
940-3769
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Daniel
A. Otto
Chief
Financial Officer
22nd
Century Group, Inc.
321
Farmington Rd
Mocksville,
NC 27028
(336)
940-3769
(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 |
Jonathan
Staffeldt
General
Counsel
22nd
Century Group, Inc.
321
Farmington Rd
Mocksville,
NC 27028
(336)
940-3769 |
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. ☒
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 ☐ |
| Non-accelerated
filer ☒ |
|
Smaller
reporting company ☒ |
| |
|
|
| |
|
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 Securities Act. ☐
| The
Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. |
The
information in this prospectus is not complete and may be changed. The selling stockholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities nor
a solicitation of an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
| Preliminary
Prospectus |
(Subject
to completion, dated February 5, 2025) |
104,124
Shares of Common Stock
This
prospectus relates to the resale from time to time by the selling stockholders named in this prospectus under the caption “Selling
Stockholders,” or the Selling Stockholders, of up to 104,124 shares of our common stock, par value $0.00001 per share, or the shares.
We will not receive any proceeds from the sale of shares being sold by the selling stockholders.
We
have agreed to bear all of the expenses incurred in connection with the registration of these shares. The selling stockholders will pay
or assume brokerage commissions and similar charges, if any, incurred for the sale of the shares. The selling stockholders identified
in this prospectus may offer the shares from time to time through public or private transactions at fixed prices, at prevailing market
prices, at varying prices determined at the time of sale, or at privately negotiated prices. We provide more information about how the
selling stockholders may sell their shares of common stock in the section titled “Plan of Distribution” beginning on page
9 of this prospectus. We will not be paying any underwriting discounts or commissions in connection with any offering of shares under
this prospectus.
Our
common stock is listed on the Nasdaq Capital market under the symbol “XXII.” On January 30, 2025, the closing price of our
common stock was $4.06 per share.
Investment
in our common stock involves risks. Please read carefully the section entitled “Risk Factors” on page 1 of this prospectus,
our most recent Annual Report on Form 10-K, subsequently filed Quarterly Reports on Form 10-Q and in any applicable prospectus supplement
and/or other offering material for a discussion of certain factors which should be considered in an investment of the common stock which
may be offered hereby.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2025.
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 that we filed with the Securities and Exchange Commission, or SEC, using a “shelf”
registration process. Under this shelf registration process, the selling stockholders may, from time to time, sell the shares of common
stock described in this prospectus in one or more offerings. A prospectus supplement and/or other offering material may also add, update
or change information contained in this prospectus. You should read this prospectus, any prospectus supplement and any other offering
material together with additional information described under the heading “Where You Can Find More Information.”
You
should rely only on the information contained or incorporated by reference in this prospectus and in any prospectus supplement or other
offering material. We have not authorized any other person to provide you with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. 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.
“Forward-Looking”
Information
This
prospectus and the information incorporated by reference in this prospectus 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
ability to continue as a going concern. |
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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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● |
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 “VLN” tobacco using the reduced exposure claims authorized
by the Food and Drug Administration (“FDA”). |
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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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● |
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.
22nd
Century Group, inc.
22nd
Century Group, Inc. is a tobacco products company with sales and distribution of our own proprietary new reduced nicotine tobacco products
authorized as Modified Risk Tobacco Products by the FDA. Additionally, we provide contract manufacturing services for conventional combustible
tobacco products for third-party brands.
Our
mission in tobacco is dedicated to mitigating the harms of smoking through our proprietary reduced nicotine content (“RNC”)
tobacco plants and our Very Low Nicotine, VLN®
combustible cigarette products. In December 2021, we secured the first and only authorization
from the FDA to market a combustible cigarette, our brand VLN® as a Modified
Risk Tobacco Product (“MRTP”) using certain reduced nicotine exposure claims. In April 2022, the inaugural launch of our
proprietary VLN® cigarettes commenced through a pilot program in select Circle
K stores in and around Chicago, Illinois. Building on the success of the pilot, we initiated a phased rollout strategy in 2023, progressing
state by state and region by region to a store footprint spanning more than 5,000 stores in 26 states. Our VLN®
tobacco products are supported by a substantial intellectual property portfolio comprising issued
patents and patent applications related to tobacco plants, and in particular our reduced nicotine tobacco plants.
In
addition to continued focus on VLN®,
we renewed our focus on utilizing our tobacco assets to attract additional tobacco business to help fund the growth of VLN®.
In addition to existing business relationships with multiple tobacco products companies, we will continue to expand the number of brands
in our contract manufacturing operations (“CMO”) portfolio in 2024.
Our
Annual Report on Form 10-K for the year ended December 31, 2023 and subsequently filed Quarterly Reports on Form 10-Q provide additional
information about our business, operations and financial condition.
We
are a Nevada corporation and our corporate headquarters is located at 321 Farmington Rd, Mocksville, NC 27028. Our telephone number is
(336) 940-3769. Our internet address is www.xxiicentury.com. We do not incorporate the information on our website into this prospectus,
and you should not consider it to be a part of this prospectus. Our web site address is included as an inactive textual reference only.
Use
of Proceeds
We
will not receive any proceeds from the sale of shares being sold by the selling stockholders.
Risk
Factors
Investing
in our common stock involves a high degree of risk. You should carefully consider the specific risks set forth under the caption “Risk
Factors” in our most recent Annual Report on Form 10-K, incorporated into this prospectus by reference, as updated by our subsequent
filings under the Securities Exchange Act of 1934, as amended. You should consider carefully those risk factors together with all of
the other information included and incorporated by reference in this prospectus before investing in any shares of common stock offered
by this prospectus. For more information, see “Where You Can Find More Information.”
Description
of Capital Stock
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 250,000,000 shares of common stock, $0.00001 par value per share, and 10,000,000 shares of preferred
stock, $0.00001 par value per share.
On
December 16, 2024 we filed a certificate of change authorizing a 1-for-135 reverse stock split of our issuaed and outstanding shares
of common stock, par value $0.00001 (the “December Reverse Stock Split”). There was no change to our authorized shares. The
December Reverse Stock Split became effective at 12:01 a.m. Eastern Time on December 17, 2024. Unless otherwise indicated, all share
and per share prices herein have been adjusted to retroactively reflect the December Reverse Stock Split. However, common sstock share
and per share amounts in certain of the documents incorporated by reference herein have not been adjusted to give effect to the December
Reverse Stock Split.
On
March 28, 2024 we filed a certificate of change authorizing a 1-for-16 reverse stock split of our issued and outstanding shares of common
stock, par value $0.00001 (the “ April Reverse Stock Split”). There was no change to our authorized shares. The April Reverse
Stock Split became effective at 12:01 a.m. Eastern Time on April 2, 2024. Unless otherwise indicated, all share and per share prices
herein have been adjusted to retroactively reflect the April Reverse Stock Split. However, common stock share and per share amounts in
certain of the documents incorporated by reference herein have not been adjusted to give effect to the April Reverse Stock Split.
As
of January 30, 2025, 1,717,089 shares of common stock were issued and outstanding, 8,519 shares of common stock were issuable upon the
exercise of pre-funded warrants, 25,261,117 shares of common stock issuable upon the exercise of warrants and no shares of preferred
stock were issued and outstanding.
Common
Stock
Our
common stock is traded on the Nasdaq Capital Market under the symbol “XXII.” Holders of our common stock are entitled to
one vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. Holders of
common stock are entitled to receive ratably such dividends, if any, as may be declared by the board of directors out of funds legally
available therefore, subject to a preferential dividend right of outstanding preferred stock. Upon the liquidation, dissolution or our
winding up, the holders of common stock are entitled to receive ratably our net assets available after the payment of all debts and other
liabilities and subject to the prior rights of any outstanding preferred stock. The rights, preferences and privileges of holders of
our common stock are subject to, and may be adversely affected by the rights of the holders any series of preferred stock that we may
designate and issue in the future.
Preferred
Stock
Under
the terms of our amended and restated articles of incorporation, the board of directors is authorized, subject to any limitations prescribed
by law, without stockholder approval, to issue shares of preferred stock in one or more series. Each such series of preferred stock shall
have such rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges
and liquidation preferences, as shall be determined by the board of directors.
The
purpose of authorizing the board of directors to issue preferred stock and determine its rights and preferences is to eliminate delays
associated with a stockholder vote on specific issuances. The issuance of preferred stock, while providing desirable flexibility in connection
with possible acquisitions and other corporate purposes, could have the effect of making it more difficult for a third part to acquire,
or of discouraging a third party from acquiring, a majority of our outstanding voting stock. We have no present plans to issue any additional
shares of preferred stock.
The
effects of issuing preferred stock could include one or more of the following:
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●
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decreasing
the amount of earnings and assets available for distribution to holders of common stock; |
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●
|
restricting
dividends on the common stock; |
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●
|
diluting
the voting power of the common stock; |
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●
|
impairing
the liquidation rights of the common stock; or |
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●
|
delaying,
deferring or preventing changes in our control or management. |
As
of the date of this prospectus, there were no shares of preferred stock outstanding.
Stock
Options and Restricted Stock
As
of January 30, 2025, we had no outstanding options to purchase shares of common stock and no shares of unvested restricted stock or restricted
stock units. As of January 30, 2025, an additional 5,336,670 shares of common stock were available for future award grants under our
stock incentive plan.
Outstanding
Warrants
As
of January 30, 2025, there were 8,519 pre-funded warrants and shares of common stock issuable upon the exercise of warrants as follows:
| Offering | |
Number of
Warrants | | |
Issue
Date
Exercise
Price | | |
Current
Exercise
Price(1) | | |
Expiration Date | |
| Pre-funded warrants | |
| 8,519 | | |
$ | 0.00001 | | |
$ | 0.00001 | | |
| N/A | |
| July 2022 RDO warrants | |
| 32 | | |
$ | 66,420.00 | | |
$ | 66,420.00 | | |
| July 25, 2027 | |
| Senior Secured Credit Facility - JGB | |
| 154 | | |
$ | 41,310.00 | | |
$ | 27,708.00 | | |
| September 3, 2028 | |
| July 19, 2023 RDO warrants | |
| 209 | | |
$ | 5,227.00 | | |
$ | 4.3021 | (3) | |
| July 20, 2028 | |
| October 2023 CMPO warrants | |
| 93 | | |
$ | 1,134.00 | | |
$ | 4.3021 | (3) | |
| October 19, 2028 | |
| November 2023 Inducement Warrants | |
| 19 | | |
$ | 464.40 | | |
$ | 4.3021 | (3) | |
| February 15, 2029 | |
| April 2024 Placement Agent Warrants | |
| 7,611 | | |
$ | 361.125 | | |
$ | 4.3021 | (3) | |
| April 8, 2029 | |
| Omnia Purchase Warrants | |
| 3,408 | | |
$ | 361.125 | | |
$ | 361.125 | | |
| May 1, 2029 | |
| August 2024 Private Placement Warrants(3) | |
| 592,995 | | |
$ | 135.00 | | |
$ | 4.3021 | (3) | |
| December 6, 2029 | |
| September 2024 Private Placement Warrants(3) | |
| 2,774,588 | | |
$ | 135.00 | | |
$ | 4.3021 | (3) | |
| December 6, 2029 | |
| September 2024 Inducement Warrants (3) | |
| 2,220,465 | | |
$ | 135.00 | | |
$ | 4.3021 | (3) | |
| December 6, 2029 | |
| September 2024 Inducement Placement Agent Warrants(3) | |
| 85,960 | | |
$ | 168.75 | | |
$ | 4.3021 | (3) | |
| December 6, 2029 | |
| September 2024 RDO warrants(3) | |
| 2,341,905 | | |
$ | 135.00 | | |
$ | 4.3021 | (3) | |
| December 6, 2029 | |
| September 2024 RDO Placement Agent Warrants(3) | |
| 87,216 | | |
$ | 168.75 | | |
$ | 4.3021 | (3) | |
| December 6, 2029 | |
| October 2024 RDO Warrants(3) | |
| 6,359,501 | | |
$ | 135.00 | | |
$ | 4.3021 | (3) | |
| December 6, 2029 | |
| October 2024 RDO Placement Agent Warrants(3) | |
| 241,445 | | |
$ | 168.75 | | |
$ | 4.3021 | (3) | |
| December 6, 2029 | |
| October 2024 PIPE Warrants(3) | |
| 9,886,421 | | |
$ | 135.00 | | |
$ | 4.3021 | (3)(4) | |
| (2 | ) |
| October 2024 PIPE Placement Agent Warrants(3) | |
| 659,095 | | |
$ | 168.75 | | |
$ | 4.3021 | (3)(4) | |
| (2 | ) |
| |
(1) |
Warrant
price adjusted as a result of anti-dilution or ratchet provisions. |
| |
(2) |
Expiration
date is 5-years following shareholder approval date. |
| |
(3) |
The
exercise prices of the warrants are subject to appropriate adjustment as a result of anti-dilution or ratchet protection provisions
relating to subsequent equity sales of shares of the Company’s common stock or common stock equivalents at an effective price
per share lower than the then effective exercise price of such warrants. Additionally, the warrant contains cashless and/or alternative
cashless exercise features. |
| |
(4) |
Reflects
the exercise price assuming stockholder approval is obtained. |
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.
Nasdaq
Capital Market Listing
Our
common stock is listed on the Nasdaq Capital Market under the symbol “XXII.”
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company, One State Street, 30th
Floor, New York, NY 10004-1561.
Selling
StockholderS
This
prospectus relates to the resale from time to time by the selling stockholders named below of 104,124 shares of our common stock. We
are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time.
The shares were issued to the Selling Stockholders as follows:
| |
● |
The Company settled $500,000 of outstanding debt and creditor
obligations through the issuance of 104,124 shares of common stock on January 30, 2025, pursuant to two separate settlement agreements.
The shares were issued in a private placement and were exempt from registration under the Securities Act of 1933, as amended, in reliance
on Section 4(a)(2) thereof as a transaction not involving a public offering and/or Rule 506 of Regulation D promulgated thereunder. |
The
table below lists the selling stockholders and other information regarding the beneficial ownership (as determined under Section 13(d)
of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder) of the shares of common stock held by the
selling stockholders as of January 30, 2025.
The
selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.” Information
is as of January 30, 2025 and is based on 1,717,089 shares of common stock issued and outstanding and 8,519 shares of common stock issuable
upon the exercise of pre-funded warrants.
| Name | |
Number of Shares of
Common Stock
Owned Prior to Offering | | |
Maximum Number of Shares of Common
Stock to be Sold Pursuant to this Prospectus | | |
Number of Shares of Common Stock Owned After Offering | | |
Percent of Outstanding Common Stock
Owned After Offering |
| North Carolina State University (1) | |
| 83,299 | | |
| 83,299 | | |
| - | | |
* |
| Maison Placements Canada, Inc.(2) | |
| 20,825 | | |
| 20,825 | | |
| - | | |
* |
*
Less than 1%.
| (1) |
Erin C. Delehanty controls
the selling stockholder and, accordingly, may be deemed to have voting and dispositive power with respect to the shares held by this
selling securityholder. The address of the foregoing individual and entity is c/o North Carolina State University,
1210 Varsity Drive, Suite 202, Raleigh NC 27695. Since 1998, the Company has been party to multiple research and development agreements
with North Carolina State University, resulting in exclusive licenses to various patented technologies. The license agreements generally
entail obtaining an exclusive option or license agreement to any invention arising out of the Company’s funded research. In all
such cases, the Company funds and controls all patent filings as the exclusive licensee. Our Annual Report on Form 10-K for the year
ended December 31, 2023 and subsequently filed Quarterly Reports on Form 10-Q provide additional information about our agreements with
North Carolina State University. |
| |
|
| (2) |
John Ing controls the selling stockholder and, accordingly, may be deemed to have voting and dispositive
power with respect to the shares held by this selling securityholder. The address of the foregoing individual and entity is c/o Maison
Placements Canada, Inc., 130 Adelaide Street West, Suite 2116, Toronto, Ontario M5H 3P5. |
Plan
of Distribution
We
are registering shares of common stock to permit the resale of these shares of common stock by the selling stockholders from time to
time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholders of the shares
of common stock. We will bear all fees and expenses incident to the registration of the shares of common stock, provided, however, the
selling stockholders will pay all underwriting discounts and selling commissions, if any.
The
selling stockholders may sell all or a portion of the shares of common stock held and offered hereby from time to time directly or through
one or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters or broker-dealers, the
selling stockholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of common
stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices
determined at the time of sale or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block
transactions, pursuant to one or more of the following methods:
| |
●
|
on
any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale; |
| |
●
|
in
the over-the-counter market; |
| |
●
|
in
transactions otherwise than on these exchanges or systems or in the over-the-counter market; |
| |
●
|
through
the writing or settlement of options, whether such options are listed on an options exchange or otherwise; |
| |
●
|
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| |
●
|
block
trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction; |
| |
●
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its account; |
| |
●
|
an
exchange distribution in accordance with the rules of the applicable exchange; |
| |
●
|
privately
negotiated transactions; |
| |
●
|
short
sales made after the date the Registration Statement is declared effective by the SEC; |
| |
●
|
broker
dealers may agree with a selling stockholder to sell a specified number of such shares at a stipulated price per share; |
| |
●
|
a
combination of any such methods of sale; or |
| |
●
|
any
other method permitted pursuant to applicable law. |
The
selling stockholders may also sell shares of common stock under Rule 144 or any other exemption from registration promulgated under the
Securities Act, if available, rather than under this prospectus. In addition, the selling stockholders may transfer the shares of common
stock by other means not described in this prospectus. If the selling stockholders effect such transactions by selling shares of common
stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the
form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the shares of common stock
for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters,
broker-dealers or agents may be in excess of those customary in the types of transactions involved). The selling stockholders may also
loan or pledge shares of common stock to broker-dealers that in turn may sell such shares.
The
selling stockholders may pledge or grant a security interest in some or all of the shares of common stock owned and, if it defaults in
the performance of its secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to
time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as a
selling stockholder under this prospectus. The selling stockholders also may transfer and donate the shares of common stock in other
circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for
purposes of this prospectus.
To
the extent required by the Securities Act and the rules and regulations thereunder, the selling stockholders and any broker-dealer participating
in the distribution of the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities
Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions
or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, a prospectus supplement,
if required, will be distributed, which will set forth the aggregate amount of shares of common stock being offered and the terms of
the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation
from the selling stockholder and any discounts, commissions or concessions allowed or re-allowed or paid to broker-dealers.
Under
the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers
or dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified
for sale in such state or an exemption from registration or qualification is available and is complied with.
There
can be no assurance that the selling stockholders will sell any or all of the shares of common stock registered pursuant to the registration
statement, of which this prospectus forms a part.
The
selling stockholders and any other person participating in such distribution will be subject to applicable provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, to the extent applicable,
Regulation M of the Securities Exchange Act of 1934, as amended, which may limit the timing of purchases and sales of any of the shares
of common stock by the selling stockholders and any other participating person. To the extent applicable, Regulation M may also restrict
the ability of any person engaged in the distribution of the shares of common stock to engage in market-making activities with respect
to the shares of common stock. All of the foregoing may affect the marketability of the shares of common stock and the ability of any
person or entity to engage in market-making activities with respect to the shares of common stock.
Once
sold under the registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the
hands of persons other than our affiliates.
Legal
Matters
The
validity of the shares of our common stock being offered hereby will be passed upon for us by Foley & Lardner LLP, Jacksonville,
Florida.
Experts
Our
consolidated financial statements appearing in our Annual Report on Form 10-K for the year ended December 31, 2023, have been
audited by Freed Maxick P.C. (f/k/a Freed Maxick CPAs, P.C.), an independent registered public accounting firm, as stated in their
report, which is incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon
the report of such firm (which report expresses an unqualified and includes an explanatory paragraph relating to substantial doubt
about the ability to continue as a going concern) given upon their authority as experts in accounting and auditing. To the extent
that Freed Maxick P.C. (f/k/a Freed Maxick CPAs, P.C.) audits and reports on consolidated financial statements of 22nd Century
Group, Inc. at future dates and consents to the use of their reports thereon, such consolidated financial statements also will be
incorporated by reference in the registration statement in reliance upon their reports and said authority.
Where
You Can Find More Information
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. We also filed a registration statement
on Form S-3, including exhibits, under the Securities Act with respect to the securities offered by this prospectus. This prospectus
is a part of the registration statement, but does not contain all of the information included in the registration statement or the exhibits.
You can find our public filings with the SEC on the internet at a web site maintained by the SEC located at http://www.sec.gov.
Incorporation
of Certain Documents by Reference
We
are “incorporating by reference” specified documents that we file with the SEC, which means:
| |
●
|
incorporated
documents are considered part of this prospectus; |
| |
●
|
we
are disclosing important information to you by referring you to those documents; and |
| |
●
|
information
we file with the SEC will automatically update and supersede information contained in this prospectus. |
We
incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act (in each case, other than information furnished under Item 2.02 or Item 7.01 of Form 8-K) (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, 2023 filed with the SEC on March 28, 2024; |
| |
● |
Our
Current Reports on Form 8-K filed with the SEC on January
27, 2025, January
13, 2025, January
7, 2025, December
17, 2024, December
6, 2024, October
24, 2024, October
15, 2024, October
10, 2024, October
8, 2024, September 30, 2024 / September 30, 2024 (Two filings), September 13, 2024, September 9, 2024, August 28, 2024,
August 16, 2024, July 30, 2024, July 22, 2024, June 28, 2024, June 4, 2024, May 30, 2024, May 10, 2024, April 30, 2024, April 18, 2024, April 9, 2024, April 8, 2024, April 5, 2024, April 3, 2024, February 15, 2024, February 13, 2024, January 25, 2024, and
January 24, 2024; |
| |
● |
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. |
Information
in this prospectus supersedes related information in the documents listed above, and information in subsequently filed documents supersedes
related information in both this prospectus and the incorporated documents.
We
will promptly provide, without charge to you, upon written or oral request, a copy of any or all of the documents incorporated by reference
in this prospectus, other than exhibits to those documents, unless the exhibits are specifically incorporated by reference in those documents.
Requests should be directed to:
22nd
Century Group, Inc.
321
Farmington Rd
Mocksville,
NC 27028
(336)
940-3769
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.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
aggregate estimated expenses, other than underwriting discounts and commissions, in connection with the sale of the securities being
registered hereby are currently anticipated to be as follows (all amounts are estimated except the Securities and Exchange Commission
registration fee). All expenses of the offering will be paid by 22nd Century Group, Inc.
| | |
Amount | |
| Securities and Exchange Commission registration fee | |
$ | 66 | |
| Legal fees and expenses | |
| 5,000 | |
| Accounting fees and expenses | |
| 5,000 | |
| Miscellaneous expenses | |
| 1,000 | |
| Total | |
$ | 11,066 | |
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 and Financial Statement Schedules.
Exhibit
Number
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
Amendment to Certificate of Incorporation of the Company (incorporated by reference to Appendix B to the Company’s Definitive Proxy Statement filed with the Commission on December 11, 2023).
3.1.3
Amendment to Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Form 8-K filed with the Commission on April 3, 2024).
3.1.4
Amendment to Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Form 8-K filed with the Commission on December 17, 2024).
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).
5.1
Opinion of Foley
& Lardner LLP (including consent of counsel).*
23.1
Consent of Foley
& Lardner LLP (filed as part of Exhibit (5)).*
23.2
Consent of Freed Maxick P.C. (f/k/a Freed Maxick CPAs, P.C.)
24
Powers
of Attorney (included on signature page).*
107
Filing Fee Table*
*Previously filed.
Item
17. Undertakings.
The
undersigned Registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and Exchange Commission (the “Commission”) pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however , that paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
If the Registrant is relying on Rule 430B:
(A)
Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however , that no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective date.
(ii)
If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall
be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided,
however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was
made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such date of first use.
The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of its annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion
of its counsel the issue has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in Mocksville, North Carolina, on this 5th day of February,
2025.
| |
22nd
CENTURY GROUP, INC. |
| |
|
|
| |
By: |
/s/
Lawrence D. Firestone |
| |
|
Lawrence
D. Firestone |
| |
|
President,
Chief Executive Officer and Director |
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 February 5, 2025.
| Signature |
|
Title |
| |
|
|
| /s/
Lawrence D. Firestone |
|
Chief
Executive Officer and Director |
| Lawrence
D. Firestone |
|
(Principal
Executive Officer) |
| |
|
|
| /s/
Daniel A. Otto |
|
Chief
Financial Officer |
| Daniel
A. Otto |
|
(Principal
Financial and Accounting Officer) |
| |
|
|
| /s/
Andrew Arno* |
|
Director |
| Andrew
Arno |
|
|
| |
|
|
| /s/
Anthony Johnson* |
|
Director |
| Anthony
Johnson |
|
|
| |
|
|
| /s/
Lucille Salhany* |
|
Director |
| Lucille
Salhany |
|
|
| |
|
|
| *By Daniel A. Otto, Attorney-in-Fact |
|
|
| /s/ Daniel A. Otto |
|
|
Exhibit
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Amendment No. 1 to the Registration Statement on Form S-3 of our report dated
March 28, 2024, relating to our audit of the consolidated financial statements appearing in the Annual Report on Form 10-K of 22nd Century
Group, Inc. for the year ended December 31, 2023.
We
also consent to the reference to our firm under the captions “Experts”.
| /s/
Freed Maxick P.C (f/k/a Freed Maxick CPAs, P.C.). |
|
| |
|
| Buffalo,
New York |
|
| February
5, 2025 |
|
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