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): April 24, 2015
_________________
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.) |
|
9530 Main Street Clarence, New York (Address of Principal Executive Office) |
14031 (Zip Code) |
|
|
Registrant’s telephone number, including area code: (716) 270-1523 |
||
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)) |
Item 5.03: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On April 24, 2015, the Board of Directors of 22nd Century Group, Inc. (the “Company”) adopted an amendment to the Company’s Amended and Restated Bylaws in order to include a provision requiring all derivative actions, stockholder class actions and other intra-corporate disputes brought against the Company to be litigated in a specified forum within the State of New York.
The description of the Amendment to the Amended and Restated Bylaws set forth above is qualified by reference to the Amendment No. 1 to the Amended and Restated Bylaws filed herewith as Exhibit 3.2, which exhibit is incorporated herein by reference.
Item 5.07(a) and (b): Submission of Matters to a Vote of Security Holders.
On April 25, 2015, the Company held an annual meeting of its stockholders to vote on the following proposals:
Proposal One : To elect two Class I directors, Henry Sicignano, III and Richard M. Sanders, to serve until the 2018 annual meeting of stockholders and until their successors are duly elected and qualified. In accordance with the voting results listed below, each of the nominees were elected to serve as directors.
| Nominee | Votes For | Votes Withheld | Broker Non-Votes | |||||||||
| Henry Sicignano, III | 20,608,018 | 5,770,998 | 20,596,626 | |||||||||
| Richard M. Sanders | 19,583,378 | 6,795,638 | 20,596,626 | |||||||||
Proposal Two : To approve an advisory resolution on executive compensation for fiscal year 2014. In accordance with the voting results listed below, the Company’s executive compensation for fiscal year 2014 has been approved.
| For | Against | Abstain | Broker Non-Votes | |||||||||||
| 19,904,245 | 6,075,516 | 399,255 | 20,596,626 | |||||||||||
Proposal Three : The audit committee of the Board of Directors selected the accounting firm of Freed Maxick CPAs, P.C. to serve as the Company’s independent registered certified public accounting firm for the year 2015. The audit committee directed that the appointment of the independent accountants be submitted for ratification by the stockholders at the annual meeting. Therefore, in accordance with the voting results listed below, Freed Maxick CPAs, P.C. will serve as the independent registered certified public accountants for the year 2015.
| For | Against | Abstain | ||||||||
| 46,335,009 | 110,301 | 530,332 | ||||||||
Item 8.01: Other Events.
On April 28, 2015, the Company issued a press release regarding its annual meeting. The press release is filed as Exhibit 99.1 and is incorporated herein by reference.
Item 9.01(d): Financial Statements and Exhibits.
Exhibit 3.2 Amendment No. 1 to Amended and Restated Bylaws.
Exhibit 99.1 Press Release dated April 28, 2015.
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/ Henry Sicignano, III | |
| Date: April 28, 2015 | Henry Sicignano, III |
| President and Chief Executive Officer |
Exhibit 3.2
AMENDMENT NO. 1
TO
AMENDED AND RESTATED BYLAWS
OF
22ND CENTURY GROUP, INC.
(Effective April 24, 2015)
22nd Century Group, Inc.’s Amended and Restated Bylaws are hereby amended as follows (capitalized terms used herein and not defined herein shall have the respective meaning ascribed to such terms in the Amended and Restated Bylaws):
| 1. | The following shall be added to the Amended and Restated Bylaws as a new Article VIII: |
Article VIII. Exclusive Litigation Forum .
Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation; (b) any action asserting a claim of breach of a fiduciary duty owed by any director or officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders; (c) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation arising pursuant to any provision of the Nevada Statutes, the Nevada Business Corporation Law or the Corporation’s Certificate of Incorporation or these Amended and Restated Bylaws (as either may be amended or restated from time to time); or (d) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation governed by the internal affairs doctrine shall be the New York State Supreme Court for the County of Erie within the State of New York or the federal district court for the Western District of New York (Buffalo Division), in all cases subject to the court’s having personal jurisdiction over the indispensable parties named as defendants. Any person or entity owning, purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article VIII.
| 2. | Except as aforesaid, the Amended and Restated Bylaws shall remain in full force and effect. |
Exhibit 99.1
22nd Century Group Provides Highlights from Annual Shareholder Meeting
Key Topics Include: Modified Risk Applications, U.S. Distribution of RED SUN, MAGIC 0.0 mg Nicotine Cigarettes and China Opportunities
April 28, 2015
CLARENCE, N.Y. – 22nd Century Group, Inc. (NYSE MKT: XXII ), a leader in very low nicotine tobacco technology and tobacco harm reduction, held its annual meeting of shareholders on Saturday, April 25, 2015, at the historic Buffalo Club in downtown Buffalo. Henry Sicignano III, President and CEO, addressed the following topics:
Modified Risk/FDA:
The Company intends to submit an application for its very low nicotine cigarette (Brand A) to the FDA this summer. Gaining Modified
Risk approval for the Company’s low tar-to-nicotine ratio cigarette (Brand B) is also a priority. However, since applying
for Brand B Modified Risk approval will require a substantially greater investment in time and money, the Company plans to submit
a Brand B application in 2016.
X-22:
The Company recently completed visits to Japan and Europe where management met with potential joint venture partners for X-22,
the Company’s smoking cessation aid in development.
RED SUN:
In the first three months on the U.S. market, the Company secured distribution for RED SUN premium cigarettes in approximately
200-300 retail stores in more than 40 states. Management expects to announce the signing of additional distributors and regional
retail store groups in the coming months.
MAGIC:
The Company recently launched its 0.0 mg MAGIC 0 cigarettes in Europe. The Company is marketing two styles of MAGIC cigarettes:
MAGIC 0 with 95% less nicotine than conventional brands and MAGIC 2 which features an 80% reduction in nicotine. MAGIC cigarettes
are currently available in approximately 900 state-licensed tobacco stores in Spain. The store count is expected to top 2,500 in
Spain by the end of 2015. Further, the Company expects distribution of MAGIC cigarettes to reach several additional European countries
in the next several months.
China:
It remains an important priority for the Company to introduce 22nd Century’s proprietary tobacco to China. Despite significant
regulatory hurdles, the Company continues to make progress in this effort.
Contract Manufacturing:
NASCO Products LLC, the Company’s cigarette manufacturing subsidiary located in Mocksville, North Carolina, continues to
produce Smoker Friendly, Cigar Cartel, and other private label brands in addition to 22nd Century’s proprietary brands.
Increased Investor Relations Outreach:
Given the exciting opportunities and events underway at the Company, management expects to increase its investor relations activities in the coming months. Mr. Sicignano is scheduled to attend several investor conferences, including the upcoming Marcum Conference in New York City in late May and the LD Micro conference in Los Angeles in June, and will conduct non-deal investor road shows in select regions during the balance of 2015. Mr. Sicignano is also looking forward to media opportunities, such as his upcoming interview today on Fox Business’ Stuart Varney show.
Mr. Sicignano noted, “We are very pleased to report to our shareholders the substantial progress underway at 22nd Century Group. It is an exciting time for all of us; the market response to RED SUN and MAGIC has been tremendous. We look forward to developing these exciting new brands.”
FORMAL MATTERS DETERMINED BY SHAREHOLDER VOTE :
Proposal 1 Passed: Both Henry Sicignano III, who is also currently the CEO and President, and Richard M. Sanders were re-elected as Class I Directors with terms expiring in 2018.
Proposal 2 Passed: The Advisory Resolution on Executive Compensation was approved.
Proposal 3 Passed: Freed Maxick CPAs, PC was ratified as the Company’s independent registered certified public accounting firm for 2015.
About 22nd Century Group, Inc.
22nd Century Group is a plant biotechnology company focused on technology which allows it to increase or decrease the level of nicotine in tobacco plants through genetic engineering and plant breeding. The Company’s mission is to reduce the harm caused by smoking. 22nd Century owns or exclusively controls 128 issued patents plus an additional 52 pending patent applications in 96 countries. The Company’s strong IP position led to a licensing agreement with British American Tobacco (“BAT”), the world’s second largest tobacco company. Visit www.xxiicentury.com for more information.
Cautionary Note Regarding Forward-Looking Statements:
This press release contains forward-looking information, including all statements that are not statements of historical fact regarding the intent, belief or current expectations of 22nd Century Group, Inc., its directors or its officers with respect to the contents of this press release. The words “may,” “would,” “will,” “expect,” “estimate,” “anticipate,” “believe,” “intend” and similar expressions and variations thereof are intended to identify forward-looking statements. We cannot guarantee future results, levels of activity or performance. You should not place undue reliance on these forward-looking statements, which speak only as of the date that they were made. These cautionary statements should be considered with any written or oral forward-looking statements that we may issue in the future. Except as required by applicable law, including the securities laws of the United States, we do not intend to update any of the forward-looking statements to conform these statements to reflect actual results, later events or circumstances, or to reflect the occurrence of unanticipated events. You should carefully review and consider the various disclosures made by us in our annual report on Form 10-K for the fiscal year ended December 31, 2014, filed on February 5, 2015, including the section entitled “Risk Factors,” and our other reports filed with the U.S. Securities and Exchange Commission which attempt to advise interested parties of the risks and factors that may affect our business, financial condition, results of operation and cash flows. If one or more of these risks or uncertainties materialize, or if the underlying assumptions prove incorrect, our actual results may vary materially from those expected or projected.
Contact:
Media and Investor Relations:
IRTH Communications
Robert Haag
1-866-976-4784
xxii@irthcommunications.com
Tom Redington
Redington, Inc.
203-222-7399