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2025-11-04
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of Report (Date of earliest event reported): November 4, 2025
22nd
Century Group, Inc.
(Exact
Name of Registrant as Specified in Charter)
| Nevada |
|
001-36338 |
|
98-0468420 |
(State or Other Jurisdiction
of Incorporation) |
|
(Commission
File
Number) |
|
(I.R.S.
Employer
Identification
No.) |
| 321
Farmington Road, Mocksville, North Carolina |
|
27028 |
| (Address
of Principal Executive Office) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (336) 940-3769
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
| ☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
|
| ☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
symbol |
|
Name
of each exchange on which registered |
| Common
Stock, $0.00001 par value |
|
XXII |
|
NASDAQ
Capital Market |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). 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 13(a) of the Exchange Act. ☐
| Item
1.01 |
Entry
into a Material Definitive Agreement. |
On
November 4, 2025, 22nd Century Group, Inc. (the “Company”) entered into a Sales Agreement (the “Sales Agreement”)
with Needham & Company, LLC (the “Sales Agent”) under which the Company may issue and sell in a registered offering shares
of our common stock having an aggregate offering price of up to $25,000,000 from time to time through or to the Sales Agent (the “ATM
Offering”). The Company currently intends to use any net proceeds from this ATM Offering for general corporate purposes, including
expansion and acceleration of the Company’s VLN® reduced nicotine content tobacco cigarettes including through partner brands,
research and development expenses, procurement and development of additional intellectual property rights and working capital.
Subject
to the terms and conditions of the Sales Agreement, each time that the Company wishes to issue and sell shares of common stock, it will
notify the Sales Agent and the Sales Agent will use its commercially reasonable efforts, consistent with its sales and trading practices,
to solicit offers to purchase the common stock shares under the terms and subject to the conditions set forth in the Sales Agreement.
The
Company will pay the Sales Agent 3.00% of the gross proceeds of the sales price per share of common stock sold through the Sales Agent
under the Sales Agreement. In addition, the Company will reimburse the Sales Agent for certain fees and disbursements to its legal counsel
incurred in connection with entering into the transactions contemplated by the Sales Agreement in an amount not to exceed $100,000 for
the establishment of the ATM Offering and $10,000 for each periodic update of the ATM Offering.
Sales
of the Company’s common stock through or to the Sales Agent, if any, will be made in transactions that are deemed to be “at
the market offerings” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended. The Company is not obligated
to make any sales of its common stock under the Sales Agreement and may at any time suspend offers under the Sales Agreement. The Sales
Agreement will terminate upon the earlier of (i) the sale of all of the Company’s common stock subject to the Sales Agreement,
or (ii) termination of the Sales Agreement as permitted therein.
This
description of the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to the Sales Agreement,
which is attached hereto as Exhibit 10.1 and incorporated by reference herein.
The
issuance and sale of common stock, if any, by the Company under the Sales Agreement will be offered and sold pursuant to the Company’s
Registration Statement on Form S-3 (Registration No. 333-270473) filed with the Securities and Exchange Commission (the “SEC”)
on March 10, 2023 and declared effective on March 31, 2023, the base prospectus included therein and the related prospectus supplement,
dated November 4, 2025, to be filed with the SEC. This Current Report on Form 8-K shall not constitute an offer to sell or the
solicitation of an offer to buy any shares of common stock nor shall there be any sale of shares of common stock in any state or jurisdiction
in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
state or other jurisdiction.
A
copy of the opinion of Foley & Lardner LLP relating to the legality of the issuance and sale of securities is attached hereto as
Exhibit 5.1.
| Item
2.02 |
Disclosure
of Results of Operations and Financial Condition |
On
November 4, 2025, the Company issued an earnings release for the quarter ended September 30, 2025. A copy of the earnings release is
furnished as Exhibit 99.1 to this report.
The
information in this item shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 (the
“Exchange Act”), or otherwise subject to the liabilities of Section 18, nor shall it be deemed incorporated by reference
in any of the Company’s filings under the Securities Act of 1933, as amended, or the Exchange Act, except to the extent, if any,
expressly set forth by specific reference in such filing.
| Item
5.02 |
Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers |
On
November 3, 2025, the Company entered into executive employment agreements with certain executives, including its named executive officers
(the “Employment Agreements”). The Employment Agreements have the initial durations indicated in the table below (the “Initial
Term”), with automatic one-year renewal periods unless either party provides advance written notice of an intent not to renew.
The
Employment Agreements specify the titles and provide for base salaries at the current levels indicated in the table below. They also
provide that the executive officers will be eligible to participate in annual cash incentive and long-term cash and equity incentive
plans and programs, as well as other employee benefit plans, that are generally provided to the Company’s senior executives from
time to time.
The
Employment Agreements also provide that, upon an involuntary termination of the executive officer’s employment by the Company without
Cause (as defined in the Employment Agreements), or upon a resignation for Good Reason (as defined in the Employment Agreements) upon
or within 24 months following a Change of Control (as defined in the Company’s 2021 Omnibus Incentive Plan or any successor incentive
plan) (the “Change of Control Employment Period”), the executive officer will receive the severance payment indicated in
the table below, as well as subsidized COBRA benefits for the continuation period indicated in the table below.
| Executive
Officer |
|
Initial
Term |
|
Title |
|
Current
Base Salary |
|
Severance
Payment on Qualifying Termination Not During Change of Control Employment Period |
|
Severance
Payment on Qualifying Termination During Change of Control Employment Period |
|
COBRA
Continuation Period |
| Lawrence
Firestone |
|
42
months |
|
Chief
Executive Officer |
|
$425,000 |
|
1.5x
sum of base salary plus target bonus |
|
2.5x
sum of base salary plus greater of target bonus or prior year’s actual bonus |
|
18
months |
| Daniel
Otto |
|
39
months |
|
Chief
Financial Officer |
|
$315,000 |
|
1.0x
sum of base salary plus target bonus |
|
1.5x
sum of base salary plus greater of target bonus or prior year’s actual bonus |
|
12
months |
| Jonathan
Staffeldt |
|
36
months |
|
General
Counsel |
|
$315,000 |
|
|
|
|
|
|
| Scott
Marion |
|
39
months |
|
Vice
President Manufacturing Operations |
|
$275,000 |
|
|
|
|
|
|
| Robert
Manfredonia |
|
36
months |
|
Executive
Vice President Sales and Marketing |
|
$275,000 |
|
|
|
|
|
|
“Cause”
is defined generally in the Employment Agreements to include (a) a willful act or omission that is a material breach of any material
obligation under the Employment Agreement or material written policy or procedure and failure to cure, (b) continued willful failure
or refusal to substantially perform duties reasonably required, (c) an act of moral turpitude, dishonesty or fraud by, or criminal conviction
(excluding non-felony convictions relating solely to vehicle and traffic offenses), (d) material misappropriation of Company property
or (e) other willful misconduct that is materially injurious to the financial condition or business reputation of, or is otherwise materially
injurious to, the Company. “Good Reason” is defined generally in the Employment Agreements to include (1) a breach by the
Company or successor in the Change of Control of the Employment Agreement, (2) a reduction in base salary, percentage of base salary
available as incentive compensation or bonus opportunity or benefits, in each case relative to those most favorable to the in effect
at any time during the 180-day period prior to the Change of Control or, to the extent more favorable to the executive officer, those
in effect at any time after the Change of Control, (3) the removal of the executive officer from, or failure to reelect or reappoint
the executive to, any of the positions held with the Company on the date of the Change of Control or any other positions with the Company
to which the executive officer has been elected, appointed or assigned, (4) a material adverse change, without the executive officer’s
written consent, in the executive officer’s working conditions or status with the Company relative to the most favorable working
conditions or status in effect during the 180-day period prior to the Change of Control or, to the extent more favorable to the executive
officer, those in effect at any time after the Change of Control, (5) the relocation by more than 50 miles from the principal place of
employment on the date 180 days prior to the Change of Control, (6) a requirement to travel 20% in excess of the average number of days
per month the executive officer was required to travel during the 180-day period prior to the Change of Control, or (7) a failure to
obtain an agreement from a successor in a Change of Control expressly to assume and agree to perform from and after the date of such
assignment all of the terms, conditions and provisions imposed by the Employment Agreement.
Upon
a qualifying termination, the executive officers will also receive accrued but unpaid benefits. Equity awards will be treated as provided
in the applicable equity incentive plan and award agreements. The Employment Agreements also require the executive officers to comply
with certain restrictive covenants.
The
foregoing description of the Employment Agreements is only a summary and is qualified in its entirety by the form of Executive Employment
Agreement that is filed herewith as Exhibit 10.2 and incorporated herein by reference.
Item
9.01(d): Financial Statements and Exhibits.
| Exhibit
5.1 |
|
Opinion of Foley & Lardner LLP |
| Exhibit
10.1 |
|
Sales
Agreement, dated November 4, 2025, by and between 22nd Century Group, Inc. and Needham & Company, LLC |
| Exhibit
10.2 |
|
Form of Executive Employment Agreement |
| Exhibit
23.1 |
|
Consent of of Foley & Lardner LLP (included in Exhibit 5.1) |
| Exhibit
99.1 |
|
Earnings release dated November 4, 2025 |
| Exhibit
104 |
|
Cover
Page Interactive Data File - The cover page XBRL tags are embedded within the inline XBRL document |
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
| |
22nd
Century Group, Inc. |
| |
|
| |
/s/
Lawrence Firestone |
| Date:
November 4, 2025 |
Lawrence
Firestone |
| |
Chief
Executive Officer |
