Item 1.01 Entry into a Material Definitive Agreement.
On June 7, 2021, 22nd Century Group, Inc. (the “Company”) entered into a
placement agent agreement (the “Placement Agent Agreement”) with Cowen and
Company, LLC (the “Placement Agent”) relating to the Company’s registered direct
offering (the “Offering”) to a select investor (the “Investor”). Pursuant to the
Placement Agent Agreement, the Company agreed to pay the Placement Agent a cash
fee of 3.0% of the gross proceeds from the Offering. The Placement Agent
Agreement requires us to indemnify the Placement Agent and certain of its
affiliates against certain customary liabilities.
In addition, on June 7, 2021, the Company and the Investor entered into a
securities purchase agreement (the “Securities Purchase Agreement”) relating to
the issuance and sale of shares of common stock. The Investor is purchasing $40
million of shares, consisting of an aggregate of 10,000,000 shares of common
stock at $4.00 per share. The Securities Purchase Agreement provides that,
subject to certain exceptions, until the earlier of (i) 90 days after the
closing of the Offering or (ii) the trading day following the date that the
common stock’s closing price exceeds $6.00 for a period of 10 consecutive
trading days, neither the Company nor any of its subsidiaries will issue, enter
into any agreement to issue or announce the issuance or proposed issuance of any
shares of common stock or common stock equivalents.
The Securities Purchase Agreement provides that, subject to certain exceptions,
for a period of six months following the closing of the Offering, the Company
will be prohibited from effecting or entering into an agreement to effect any
issuance by the Company or any of its subsidiaries of common stock or common
stock equivalents (or a combination of units thereof) involving a variable rate
transaction, which generally includes any transaction in which the Company (i)
issues or sells any debt or equity securities that are convertible into,
exchangeable or exercisable for, or include the right to receive additional
shares of common stock either (A) at a conversion price or exchange rate that is
based upon and/or varies with the trading prices of or quotations for the shares
of common stock at any time after the initial issuance of such securities, or
(B) with a conversion, exercise or exchange price that is subject to being reset
at some future date after the initial issuance of such debt or equity security
or upon the occurrence of specified or contingent events directly or indirectly
related to the business of the Company or the market for the common stock or
(ii) enters into any agreement, whereby the Company may issue securities at a
future determined price.
The net proceeds to the Company from the Offering, after deducting Placement
Agent fees and the Company’s estimated offering expenses, are expected to be
approximately $38.2 million. The Offering is expected to close on or before June
The common stock is being offered and sold pursuant to the Company’s
Registration Statement on Form S-3 (Registration No. 333-239981) previously
filed with the Securities and Exchange Commission and declared effective on July
30, 2020, the base prospectus included therein and the related prospectus
supplement dated June 7, 2021.
The foregoing summaries of the terms of the Placement Agent Agreement and the
Securities Purchase Agreement are subject to, and qualified in their entirety
by, such documents attached hereto as Exhibits 1.1 and 10.1, respectively, and
incorporated herein by reference. Each of the Placement Agent Agreement and the
Securities Purchase Agreement contains representations and warranties that the
respective parties made to, and solely for the benefit of, the other parties
thereto in the context of all of the terms and conditions of those agreements
and in the context of the specific relationship between the parties. The
provisions of the Placement Agent Agreement and the Securities Purchase
Agreement, including the representations and warranties contained therein, are
not for the benefit of any party other than the parties to such agreements or as
stated therein and are not intended as documents for investors and the public to
obtain factual information about the current state of affairs of the parties to
those documents and agreements. Rather, investors and the public should look to
other disclosures contained in the Company’s filings with the Securities and
Item 7.01. Regulation FD Disclosure.
On June 7, 2021, the Company issued a press release with respect to the
information set forth above. A copy of the press release is furnished as Exhibit
99.1 and is incorporated herein by reference.
The information in this item (including the exhibit) 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 9.01(d). Financial Statements and Exhibits.
(d) Exhibits. 1.1 Placement Agent Agreement, dated June 7, 2021, between 22nd Century Group, Inc. and Cowen and Company, LLC. 5.1 Opinion of Foley & Lardner, LLP. 10.1 Form of Securities Purchase Agreement, dated June 7, 2021, by and between 22nd Century Group, Inc. and each of the Purchasers (as defined therein). 23.1 Consent of Foley & Lardner, LLP (included in Exhibit 5.1). 99.1 Press Release, dated June 7, 2021. 104 Cover Page Interactive Data File - The cover page XBRL tags are embedded within the inline XBRL document.
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