SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________
 
SCHEDULE 13G
_____________________________
 
Under the Securities Exchange Act of 1934
 
(Amendment No. 1)*
 

22nd Century Group, Inc.

(Name of Issuer)
 

Common Stock, $0.00001 par value

(Title of Class of Securities)
 

90137F103

(CUSIP Number)
 

December 31, 2019

(Date of event which requires filing of this statement)
 
 
Check the appropriate box to designate the rule pursuant to which this Schedule 13G is filed:
 
¨ Rule 13d-1(b)
x Rule 13d-1(c)
¨ Rule 13d-1(d)
 
(Page 1 of 6 Pages)

 

______________________________

*The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page.

The information required in the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

CUSIP No. 90137F10313G/APage 2 of 6 Pages

 

1

NAMES OF REPORTING PERSONS

Empery Asset Management, LP

2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a) ¨

(b) ¨

3 SEC USE ONLY
4

CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
5

SOLE VOTING POWER

 

6

SHARED VOTING POWER

5,801,118 shares of Common Stock

10,543,211 shares of Common Stock issuable upon exercise of Warrants (See
Item 4)*

7

SOLE DISPOSITIVE POWER

 

8

SHARED DISPOSITIVE POWER

5,801,118 shares of Common Stock

10,543,211 shares of Common Stock issuable upon exercise of Warrants (See
Item 4)*

9

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

5,801,118 shares of Common Stock

10,543,211 shares of Common Stock issuable upon exercise of Warrants (See Item 4)*

10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES ¨
11

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)

4.99% (See Item 4)*

12

TYPE OF REPORTING PERSON

PN

         

 

* As more fully described in Item 4, the Warrants are subject to a 4.99% blocker, and the percentage set forth in row (11) gives effect to such blockers. However, as more fully described in Item 4, the securities reported in rows (6), (8) and (9) show the number of shares of Common Stock that would be issuable upon full exercise of such reported securities and do not give effect to such blockers. Therefore, the actual number of shares of Common Stock beneficially owned by such Reporting Person, after giving effect to such blockers, is less than the number of securities reported in rows (6), (8) and (9).

 

CUSIP No. 90137F10313G/APage 3 of 6 Pages

 

1

NAMES OF REPORTING PERSONS

Ryan M. Lane

2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a) ¨

(b) ¨

3 SEC USE ONLY
4

CITIZENSHIP OR PLACE OF ORGANIZATION

United States

NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
5

SOLE VOTING POWER

 

6

SHARED VOTING POWER

5,801,118 shares of Common Stock

10,543,211 shares of Common Stock issuable upon exercise of Warrants (See
Item 4)*

7

SOLE DISPOSITIVE POWER

 

8

SHARED DISPOSITIVE POWER

5,801,118 shares of Common Stock

10,543,211 shares of Common Stock issuable upon exercise of Warrants (See
Item 4)*

9

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

5,801,118 shares of Common Stock

10,543,211 shares of Common Stock issuable upon exercise of Warrants (See Item 4)*

10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES ¨
11

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)

4.99% (See Item 4)*

12

TYPE OF REPORTING PERSON

IN

         

 

* As more fully described in Item 4, the Warrants are subject to a 4.99% blocker 22nd Century Group, Inc., and the percentage set forth in row (11) gives effect to such blockers. However, as more fully described in Item 4, the securities reported in rows (6), (8) and (9) show the number of shares of Common Stock that would be issuable upon full exercise of such reported securities and do not give effect to such blockers. Therefore, the actual number of shares of Common Stock beneficially owned by such Reporting Person, after giving effect to such blockers, is less than the number of securities reported in rows (6), (8) and (9).

 

CUSIP No. 90137F10313G/APage 4 of 6 Pages

 

1

NAMES OF REPORTING PERSONS

Martin D. Hoe

2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a) ¨

(b) ¨

3 SEC USE ONLY
4

CITIZENSHIP OR PLACE OF ORGANIZATION

United States

NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
5

SOLE VOTING POWER

 

6

SHARED VOTING POWER

5,801,118 shares of Common Stock

10,543,211 shares of Common Stock issuable upon exercise of Warrants (See
Item 4)*

7

SOLE DISPOSITIVE POWER

 

8

SHARED DISPOSITIVE POWER

5,801,118 shares of Common Stock

10,543,211 shares of Common Stock issuable upon exercise of Warrants (See
Item 4)*

9

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

5,801,118 shares of Common Stock

10,543,211 shares of Common Stock issuable upon exercise of Warrants (See Item 4)*

10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES ¨
11

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)

4.99% (See Item 4)*

12

TYPE OF REPORTING PERSON

IN

         

 

* As more fully described in Item 4, the Warrants are subject to a 4.99% blocker, and the percentage set forth in row (11) gives effect to such blockers. However, as more fully described in Item 4, the securities reported in rows (6), (8) and (9) show the number of shares of Common Stock that would be issuable upon full exercise of such reported securities and do not give effect to such blockers. Therefore, the actual number of shares of Common Stock beneficially owned by such Reporting Person, after giving effect to such blockers, is less than the number of securities reported in rows (6), (8) and (9).

 

CUSIP No. 90137F10313G/APage 5 of 6 Pages

 

This Amendment No. 1 (this "Amendment") amends the statement on Schedule 13G filed on November 27, 2019 (the "Original Schedule 13G", as amended, the "Schedule 13G"), with respect to Common Stock, $0.00001 par value (the "Common Stock") of 22nd Century Group, Inc. (the "Company"). Capitalized terms used herein and not otherwise defined in this Amendment have the meanings set forth in the Schedule 13G. This Amendment amends and restates Items 4 and 5 in their entirety as set forth below.

 

Item 4. OWNERSHIP.
 

The information as of the date of the event which requires filing of this statement required by Items 4(a) – (c) is set forth in Rows 5 – 11 of the cover page for each Reporting Person hereto and is incorporated herein by reference for each such Reporting Person. The percentage set forth in Row 11 of the cover page for each Reporting Person is based on 133,122,581 shares of Common Stock issued and outstanding as of November 26, 2019, as determined by adding 7,350,000 shares of Common Stock that were issued pursuant to warrant exercises to the 125,772,581 shares of issued and outstanding as of November 22, 2019 as represented in the Company’s Prospectus Supplement on Form 424(b)(5) filed with the Securities and Exchange Commission on November 25, 2019 and assumes the exercise of the Company’s reported warrants (the “Reported Warrants”) subject to the Blockers (as defined below).

 

Pursuant to the terms of the Reported Warrants, the Reporting Persons cannot exercise the Reported Warrants to the extent the Reporting Persons would beneficially own, after any such exercise, more than 4.99% of the outstanding shares of Common Stock (the "Blockers"), and the percentage set forth in Row 11 of the cover page for each Reporting Person gives effect to the Blockers. Consequently, as of the date of the event which requires the filing of this statement, the Reporting Persons were not able to exercise all of the Reported Warrants due to the Blockers.

 

The Investment Manager, which serves as the investment manager to the Empery Funds, may be deemed to be the beneficial owner of all shares of Common Stock held by, and underlying the Reported Warrants (subject to the Blockers) held by, the Empery Funds. Each of the Reporting Individuals, as Managing Members of the General Partner of the Investment Manager with the power to exercise investment discretion, may be deemed to be the beneficial owner of all shares of Common Stock held by, and underlying the Reported Warrants (subject to the Blockers) held by, the Empery Funds. The foregoing should not be construed in and of itself as an admission by any Reporting Person as to beneficial ownership of shares of Common Stock owned by another Reporting Person. Each of the Empery Funds and the Reporting Individuals hereby disclaims any beneficial ownership of any such shares of Common Stock.

 

Item 5. OWNERSHIP OF FIVE PERCENT OR LESS OF A CLASS.
 

 

If this statement is being filed to report the fact that as of the date hereof the reporting person has ceased to be the beneficial owner of more than five percent of the class of securities, check the following: [X]

 

CUSIP No. 90137F10313G/APage 6 of 6 Pages

 

SIGNATURES

After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.

DATED: January 28, 2020

   
   
  EMPERY ASSET MANAGEMENT, LP
  By: EMPERY AM GP, LLC, its General Partner
   
  By: /s/ Ryan M. Lane___________________
  Name:  Ryan M. Lane
  Title:  Managing Member
   
  _/s/ Ryan M. Lane______________________
  Ryan M. Lane
   
  _/s/ Martin D. Hoe______________________
  Martin D. Hoe