1 |
NAMES
OF REPORTING PERSONS
| ||||
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
| |||||
Joseph Pandolfino | |||||
2 |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
| (a) | o | ||
(b) | o | ||||
3 |
SEC
USE ONLY
| ||||
4 |
SOURCE
OF FUNDS
| ||||
PF | |||||
5 |
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(e)
or 2(f)
| o | |||
6 |
CITIZENSHIP
OR PLACE OF ORGANIZATION
| ||||
USA | |||||
NUMBER
OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
| 7 |
SOLE
VOTING POWER
| |||
7,707,296 | |||||
8 |
SHARED
VOTING POWER
| ||||
0 | |||||
9 |
SOLE
DISPOSITIVE POWER
| ||||
7,707,296 | |||||
10 |
SHARED
DISPOSITIVE POWER
| ||||
0 | |||||
11 |
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| ||||
7,707,296 | |||||
12 |
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
| o | |||
13 |
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
| ||||
20.7%
| |||||
14 |
TYPE
OF REPORTING PERSON
| ||||
IN | |||||
Item 1. | Security and Issuer |
This Schedule 13D relates to the common stock, par value $0.00001 per share (the “Common Stock”), of 22nd Century Group, Inc., a Nevada corporation. The principal executive offices of the Company are located at 9350 Main Street, Clarence, NY 14031. |
Item 2. | Identity and Background |
(a) | Joseph Pandolfino |
(b) | c/o 22nd Century Group, Inc.
9350 Main Street Clarence, New York 14031 |
(c) | Mr. Pandolfino currently serves as Chief Executive Officer and as a member of the Board of Directors of the Company. |
(d) | None |
(e) | None |
(f) | USA |
Item 3. |
Source
and Amount of Funds or Other Consideration
|
On January 25, 2011, the Company entered into an Agreement and Plan of Merger and Reorganization (the “Merger Agreement”) with 22nd Century Limited, LLC, a privately held Delaware limited liability company (“22nd Century Limited”), and 22nd Century Acquisition Subsidiary, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company (“Acquisition Sub”). Also, on January 25, 2011, the Company consummated the merger transaction contemplated under the Merger Agreement (the “Merger”), pursuant to which Acquisition Sub was merged with and into 22nd Century Limited, and 22nd Century Limited, as the surviving entity, became a wholly-owned subsidiary of the Company.
22nd Century Limited previously issued warrants to certain of its members (the “Prior Member Warrants”), which Prior Member Warrants were exercisable for the purchase of a certain number of limited liability company membership interest units of 22nd Century Limited (“Units”), at an exercise price of Three Dollars ($3.00) per Unit. In addition, prior to consummation of the Merger, 22nd Century Limited completed a private placement offering (the “Private Placement Offering”) of 5,434,446 securities (the “PPO Securities”), at the purchase price of One Dollar ($1.00) per PPO Security. Each PPO Security consisted of: (i) one (1) Unit; and (ii) a five-year warrant exercisable for the purchase of one half of one (1/2) Unit, at an exercise price of One Dollar and 50 Cents ($1.50) per whole Unit (a “Prior PPO Warrant”). In accordance with the terms of the Merger Agreement, upon the consummation of the Merger by the Company, each member of 22nd Century Limited, including Mr. Pandolfino, received one (1) share of Common Stock in exchange for each issued and outstanding Unit of 22nd Century Limited held by the member immediately prior to the consummation of the Merger. In addition, upon consummation of the Merger, each member of 22nd Century Limited who held a Prior Member Warrant, including Mr. Pandolfino, received a new warrant to purchase up to a certain number of shares of Common Stock, at an exercise price of Three Dollars ($3.00) per share (a “Conversion Warrant”), in exchange for the member’s Prior Member Warrant. Finally, upon consummation of the Merger, each investor who participated in the Private Placement Offering, including Mr. Pandolfino, received a new warrant to purchase up to a certain number of shares of Common Stock, at an exercise price of One Dollar and 50 Cents ($1.50) per share (a “New PPO Warrant”), in exchange for the investor’s Prior PPO Warrant. The Merger Agreement, form of Conversion Warrant and Form of New PPO Warrant are incorporated by reference to Exhibits 2.1, 10.4 and 10.5, respectively, to the Company’s Current Report on Form 8-K filed with the SEC on February 1, 2011. Subsequent to the Merger, Mr. Pandolfino acquired the securities reported herein using his personal funds in addition to the acquisition of securities pursuant to the Company’s Equity Incentive Plan. |
Item 4. |
Purpose
of Transaction
|
Mr. Pandolfino acquired the securities described herein for personal investment purposes or pursuant to the Company’s Equity Incentive Plan. In addition, as a condition to the consummation of the Merger, the Company and Mr. Pandolfino entered into an employment agreement, dated January 25, 2011, pursuant to which Mr. Pandolfino serves as the Chief Executive Officer of the Company. Mr. Pandolfino is also a director of the Company.
As disclosed in the Company’s public reports, the Company will need to raise funds through the issuance of debt or equity securities or through licensing its technology during the next twelve months in order to continue operations. Failure to raise sufficient funds would increase the risk that the Company would be unable to continue operations. Other than as stated above, Mr. Pandolfino currently has no plans or proposals which relate to, or may result in, any of the matters listed in Items 4(a)-(j) of Schedule 13D (although Mr. Pandolfino reserves the right to develop such plans). |
(a) | (See Above) |
(b) | (See Above) |
(c) | (See Above) |
(d) | (See Above) |
(e) | (See Above) |
(f) | (See Above) |
(g) | (See Above) |
(h) | (See Above) |
(i) | (See Above) |
(j) | (See Above) |
Item 5. |
Interest
in Securities of the Issuer
|
(a) | As of February 4, 2013, the Company had 35,415,139 shares of the Common Stock issued and outstanding. Based on the number of shares outstanding as of February 4, 2013, as of February 4, 2013, Mr. Pandolfino’s ownership includes 5,875,535 shares of the Common Stock and warrants to purchase an aggregate of 1,831,761 shares of the Common Stock. |
(b) | Mr. Pandolfino has the sole power to vote and the sole power to direct the disposition of the shares that he beneficially owns. |
(c) | On February 25, 2013, Mr. Pandolfino was awarded 500,000 restricted shares of the Common Stock pursuant to the Company's Employee Incentive Plan. |
| Transaction Date | Shares or Unites Purchased (Sold) | Price Per Share or Unit |
| February 25, 2013. | 500,000 restricted shares pursuant to Company's Employee Incentive Plan. | Pursuant to Company's Employee Incentive Plan. |
(d) | No person other than Mr. Pandolfino has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any of the shares beneficially owned. |
(e) | N/A |
Item 6. |
Contracts,
Arrangements, Understandings or Relationships with Respect to Securities
of the Issuer
|
On January 25, 2011, Mr. Pandolfino and the Company entered into an Employment Agreement, pursuant to which Mr. Pandolfino provides services to the Company as its Chief Executive Officer. The Employment Agreement is incorporated by reference to Exhibit 10.15 to the Company’s Current Report on Form 8-K filed with the SEC on February 1, 2011.
On January 6, 2013, Mr. Pandolfino entered into a Lock-Up Agreement with the Company, pursuant to which he agreed that, until the 2-month anniversary of the date a registration statement registering 200% of the shares of the Company’s common stock underlying the Series A-1 Convertible Preferred Stock and warrants issued in connection therewith is declared effective by the Securities and Exchange Commission, Mr. Pandolfino shall not sell or otherwise dispose of any shares of the Common Stock (or common stock equivalents), except that Mr. Pandolfino shall be permitted to sell up to 5,000 shares of the Common Stock per trading day in ordinary brokerage transactions up to a maximum of 50,000 shares of the Common Stock. |
Item 7. |
Material
to Be Filed as Exhibits
|
The following documents are filed as exhibits to this statement on Schedule 13D:
1. Agreement and Plan of Merger and Reorganization, dated January 25, 2011, by and among the Company, 22nd Century Limited and Acquisition Sub. This agreement is incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the SEC on February 1, 2011. 2. Employment Agreement, dated January 25, 2011, by and between the Company and Joseph Pandolfino. This agreement is incorporated by reference to Exhibit 10.15 to the Company’s Current Report on Form 8-K filed with the SEC on February 1, 2011. 3. Form of Warrant, dated January 25, 2011, issued upon consummation of the Merger to members of 22nd Century Limited that were members prior to the consummation of the Private Placement Offering. This form of warrant is incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed with the SEC on February 1, 2011. 4. Form of Warrant, dated January 25, 2011, issued upon consummation of the Merger to investors in the Private Placement Offering. This form of warrant is incorporated by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K filed with the SEC on February 1, 2011. 5. Securities Purchase Agreement dated December 14, 2011, by and between the Issuer and purchasers thereto, is incorporated by reference to Exhibit 10.1 to the Issuers Current Report on Form 8-K filed with the SEC on December 16, 2011. 6. Form of Note dated December 14, 2011, issued by the Issuer pursuant to the Purchase Agreement, is incorporated by reference to Exhibit 4.1 to the Issuer’s Current Report on Form 8-K filed with the SEC on December 16, 2011. 7. Form of Warrant issuable by the Issuer upon conversion of the Note dated December 14, 2011, is incorporated by reference to Exhibit 4.2 to the Issuer’s Current Report on Form 8-K filed with the SEC on December 16, 2011. 8. Securities Purchase Agreement dated May 15, 2012 between the Issuer, Mr. Pandolfino and the other investors thereto. Incorporated by reference from Exhibit 10.1 to the Issuer's Form 8-K filed with the Securities and Exchange Commission on May 18, 2012. 9. Form of Warrant to Securities Purchase Agreement dated May 15, 2012. Incorporated by reference from Exhibit 4.1 to the Issuer's Form 8-K filed with the Securities and Exchange Commission on May 18, 2012. 10. Securities Purchase Agreement dated November 9, 2012 between the Issuer, Mr. Pandolfino and the other investors thereto. Incorporated by reference from Exhibit 10.1 to the Issuer's Form 8-K filed with the Securities and Exchange Commission on November 13, 2012. 11. Form of Warrant to Securities Purchase Agreement dated November 9, 2012. Incorporated by reference from Exhibit 4.1 to the Issuer's Form 8-K filed with the Securities and Exchange Commission on November 13, 2012. 12. Form of Insiders Lock-Up Agreement dated January 6, 2013. Incorporated by reference from Exhibit 10.3 to the Issuer’s Form 8-K filed with the Securities and Exchange Commission on January 17, 2013. |
February 27, 2013 | By: |
/s/
Joseph Pandolfino | |