As filed with the Securities and Exchange Commission on October 8, 2024

Registration No. 333-             

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

 

ROCKWELL MEDICAL, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   38-3317208

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification Number)

 

30142 Wixom Road
Wixom, Michigan 48393

(248) 960-9009

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

Non-Plan Inducement Stock Option

(Full title of the plans)

 

 

Mark Strobeck, Ph.D.

President and Chief Executive Officer 

Rockwell Medical, Inc.

30142 Wixom Road

Wixom, Michigan 48393

(248) 960-9009

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

Copies to:

Ryan A. Murr
Gibson, Dunn & Crutcher LLP
One Embarcadero Center, Suite 2600
San Francisco, CA 94111
(415) 393-8373
Megan C. Timmins
EVP, CLO and Secretary
Rockwell Medical, Inc.
30142 S. Wixom Road
Wixom, Michigan 48393
(248) 960-9009

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a small reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   ¨   Accelerated filer   ¨
Non-accelerated filer   x   Smaller reporting company   x
        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 7(a)(2)(B) of the Securities Act.  ☐

 

 

 

 

 

 

EXPLANATORY NOTE

 

This Registration Statement on Form S-8 is being filed to register 75,000 shares of Rockwell Medical, Inc. (the “Company” or the “Registrant”) common stock, par value $0.0001 per share, issuable under a previously announced stand-alone inducement award.

 

Part I

 

Information Required in the Section 10(a) Prospectus

 

The information required by Item 1 and Item 2 of Part I of Form S-8 is omitted from this filing in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of Form S-8.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference

 

The following documents filed by the Company with the Securities and Exchange Commission (the “Commission”) are incorporated by reference into this Registration Statement:

 

  1. The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on March 21, 2024, including the information specifically incorporated by reference therein from our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 15, 2024;

 

  2. The Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2024, and June 30, 2024, filed with the SEC on May 14, 2024, and August 8, 2024, respectively;

 

  3. The Company’s Current Reports on Form 8-K, filed with the SEC on January 8, 2024, May 23, 2024, and July 15, 2024; and

 

  4. The Company’s description of its common stock contained in our Registration Statement on Form 8-A filed with the SEC on January 23, 1998, as well as any subsequent amendments or reports filed for the purpose of updating such description.

 

All reports or other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold hereunder, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of filing such reports and documents. Notwithstanding the foregoing, unless specifically stated to the contrary in such filing, none of the information that the Registrant discloses under Items 2.02 or 7.01 of any Current Report on Form 8-K that it may from time to time furnish to the Commission will be incorporated by reference into, or otherwise be included in or deemed to be a part of, this Registration Statement.

 

Any statement contained in a document incorporated by reference into this Registration Statement shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document which also is or is deemed incorporated herein) modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part hereof, except as so modified or superseded.

 

 

 

 

Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

 

The Company is a Delaware corporation. Section 145(a) of the Delaware General Corporation Law, or the DGCL, provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the corporation, by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.

 

Section 145(b) of the DGCL provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine, upon application, that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.

 

Further subsections of DGCL Section 145 provide that:

 

(1)            to the extent a present or former director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (i) and (ii) of Section 145 or in the defense of any claim, issue or matter therein, such person shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred by such person in connection therewith;

 

(2)            the indemnification and advancement of expenses provided for pursuant to Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise; and

 

 

 

 

(3)            the corporation shall have the power to purchase and maintain insurance of behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under Section 145.

 

As used in this Item 6, the term “proceeding” means any threatened, pending or completed action, suit or proceeding, whether or not by or in the right of the Company, and whether civil, criminal, administrative, investigative or otherwise.

 

Section 145 of the DGCL makes provision for the indemnification of officers and directors in terms sufficiently broad to indemnify officers and directors of the Company under certain circumstances from liabilities (including reimbursement for expenses incurred) arising under the Securities Act. The Company’s organizational documents provide, in effect, that, to the fullest extent and under the circumstances permitted by Section 145 of the DGCL, the Company will indemnify any and all of its officers and directors. The Company has entered into indemnification agreements with its officers and directors. The Company may, in its discretion, similarly indemnify its employees and agents. The Company’s certificate of incorporation also relieves its directors from monetary damages to the Company or its stockholders for breach of such director’s fiduciary duty as a director to the fullest extent permitted by the DGCL. Under Section 102(b)(7) of the DGCL, a corporation may relieve its directors from personal liability to such corporation or its stockholders for monetary damages for any breach of their fiduciary duty as directors except (i) for a breach of the duty of loyalty, (ii) for failure to act in good faith, (iii) for intentional misconduct or knowing violation of law, (iv) for willful or negligent violations of certain provisions in the DGCL imposing certain requirements with respect to stock repurchases, redemptions and dividends or (v) for any transactions from which the director derived an improper personal benefit.

 

The Company has purchased insurance policies that, within the limits and subject to the terms and conditions thereof, cover certain expenses and liabilities that may be incurred by directors and officers in connection with proceedings that may be brought against them as a result of an act or omission committed or suffered while acting as a director or officer of the Company

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit No.

 

Description

   
4.1   Certificate of Incorporation (filed with the SEC as Exhibit 3.3 to the Company’s Form 8-K filed on August 30, 2019)
     
4.2   Certificate of Amendment to Certificate of Incorporation of Rockwell Medical, Inc. related to the Reverse Stock Split, dated May 12, 2022 (filed with the SEC as Exhibit 3.1 to the Company’s Form 8-K filed on May 13, 2022)
     
4.3   Certificate of Designation of Preferences, Rights and Limitations of Series X Convertible Preferred Stock (filed with the SEC as Exhibit 3.1 to the Company’s Form 8-K filed on April 8, 2022)
     
4.4   Amended and Restated Bylaws (filed with the SEC as Exhibit 3.1 to the Company's Form 10-Q filed on November 14, 2022)

 

 

 

 

5.1*   Opinion of Gibson, Dunn & Crutcher LLP.
   
23.1*   Consent of EisnerAmper LLP
     
23.2*   Consent of Marcum LLP
     
23.3*   Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.1).
   
24.1*   Power of Attorney (included in signature page to this Registration Statement)
     
99.1   Form of Stock Option Agreement (2018 Long Term Incentive Plan) (filed with the SEC as Exhibit 10.2 to the Company’s Form 10-Q filed on November 14, 2022)
     
107*   Calculation of Filing Fee Table

 

 

 

*Filed herewith.

 

Item 9. Undertakings.

 

(a) The undersigned Registrant hereby undertakes:

 

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

(iii)  To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

 

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement;

 

(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and

 

 

 

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Wixom, State of Michigan, on this 8th day of October, 2024.

 

  ROCKWELL MEDICAL, INC.
     
  By: /s/ Mark Strobeck, Ph.D.
   

Name: Mark Strobeck, Ph.D.

Title: President and Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Mark Strobeck, Ph.D. as his or her attorney-in-fact, with full power of substitution, for him or her and in any and all capacities, to sign any and all amendments to this Registration Statement on this Form S-8 (including any post-effective amendments thereto) and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.

 

Signature   Title Date
       

/s/ Mark Strobeck, Ph.D.

  President, Chief Executive Officer and Director October 8, 2024
Mark Strobeck, Ph.D.   (Principal Executive Officer and Principal Financial Officer)  
       
       

/s/ Jesse Neri

  Senior Vice President, Finance and Principal Accounting Officer October 8, 2024
Jesse Neri      
       

/s/ John G. Cooper

  Director October 8, 2024
John G. Cooper      
       

/s/ Joan Lau, Ph.D.

  Director October 8, 2024
Joan Lau, Ph.D.      
       

/s/ Allen Nissenson, MD

  Director October 8, 2024
Allen Nissenson, MD      
       

/s/ Robert S. Radie

  Director October 8, 2024
Robert S. Radie      
       

/s/ Mark H. Ravich

  Director October 8, 2024
Mark H. Ravich      
       

/s/ Andrea Heslin Smiley

  Director October 8, 2024
Andrea Heslin Smiley      

 

 

 

 

Exhibit 5.1

 

 

 

October 8, 2024

 

Rockwell Medical, Inc.
30142 S. Wixom Road
Wixom, Michigan 48393

 

Re: Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have examined the Registration Statement on Form S-8 (the “Registration Statement”) of Rockwell Medical, Inc., a Delaware corporation (the “Company”), to be filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), in connection with the offering by the Company of up to 75,000 shares of the Company’s Common Stock, par value $0.0001 per share (the “Shares”). The Shares subject to the Registration Statement are to be issued pursuant to a stand-alone inducement stock option (the “Inducement Award”).

 

In arriving at the opinion expressed below, we have examined originals, or copies certified or otherwise identified to our satisfaction as being true and complete copies of the originals, of such documents, corporate records, certificates of officers of the Company and of public officials and other instruments as we have deemed necessary or advisable to enable us to render the opinion set forth below. In our examination, we have assumed without independent investigation the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies. As to any facts material to this opinion, we have relied to the extent we deemed appropriate and without independent investigation upon statements and representations of officers and other representatives of the Company and others. We have also assumed that there are no agreements or understandings between the Company and the recipient of the Inducement Award that would expand, modify or otherwise affect the terms of the Inducement Award or the respective rights or obligations of the participant thereunder.

 

Based upon the foregoing, and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that the Shares, when issued against payment therefor in accordance with the terms set forth in the Inducement Award as set forth in the Registration Statement, will be validly issued, fully paid and non-assessable.

 

We render no opinion herein as to matters involving the laws of any jurisdiction other than the Delaware General Corporation Law (the “DGCL”). We are not admitted to practice in the State of Delaware; however, we are generally familiar with the DGCL as currently in effect and have made such inquiries as we consider necessary to render the opinions above. This opinion is limited to the effect of the current state of the DGCL and the facts as they currently exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such law or the interpretations thereof or such facts.

 

 

 

 

We consent to the filing of this opinion as an exhibit to the Registration Statement, and we further consent to the use of our name under the caption “Legal Matters” in the Registration Statement and the prospectus that forms a part thereof. In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.

 

Very truly yours,

 

/s/ Gibson, Dunn & Crutcher LLP

 

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement of Rockwell Medical, Inc. and Subsidiaries on Form S-8 to be filed on or about October 8, 2024 of our report dated March 21, 2024, on our audit of the financial statements as of December 31, 2023 and for the year then ended, which report was included in the Annual Report on Form 10-K filed March 21, 2024.

 

/s/ EisnerAmper LLP

 

EISNERAMPER LLP

West Palm Beach, Florida

October 8, 2024

 

 

 

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement of Rockwell Medical, Inc. and Subsidiaries on Form S-8 of our report dated March 30, 2023, with respect to our audit of the consolidated financial statements of Rockwell Medical, Inc. and Subsidiaries as of December 31, 2022 and for the year then ended appearing in the Annual Report on Form 10-K of Rockwell Medical, Inc. and Subsidiaries for the year ended December 31, 2023.

 

/s/ Marcum LLP

 

Marcum LLP

Chicago, IL 

October 7, 2024

 

 

 

 

Exhibit 107

 

CALCULATION OF FILING FEE TABLE

 

Form S-8
(Form Type)

 

Rockwell Medical, Inc.
(Exact Name of Registrant as Specified in its Charter)

 

Table 1 – Newly Registered Securities

 

Security Type Security
Class  Title
Fee
Calculation
Rule
Amount Registered (1) Proposed Maximum
Offering
Price Per
Unit
Maximum
Aggregate
Offering
Price
Fee Rate Amount of
Registration
Fee
Equity Common stock, par value $0.0001 per share 457(a) 75,000(2) $1.88 (3) $141,000 $153.10 per $1,000,000 $21.58
Total Offering Amounts   $141,000   $21.58
Total Fee Offsets       $0
Net Fee Due       $21.58

 

(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional securities that may be offered or issued in respect of the securities registered by this Registration Statement to prevent dilution as a result of any stock dividend, stock split, recapitalization or other similar transaction, and any other securities with respect to which the outstanding shares are converted or exchanged.
(2) This Registration Statement registers 75,000 shares of Common Stock available for issuance pursuant to a stock option granted as an inducement award to an employee as an inducement to commencement of employment with the Company pursuant to Nasdaq Listing Rule 5635(c)(4) (the “Inducement Exception”).
(3) Estimated in accordance with Rules 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $1.88 per share, which represents the exercise price of the stock option granted pursuant to the Inducement Exception.

 

 

 


Rockwell Medical (NASDAQ:RMTI)
Graphique Historique de l'Action
De Oct 2024 à Nov 2024 Plus de graphiques de la Bourse Rockwell Medical
Rockwell Medical (NASDAQ:RMTI)
Graphique Historique de l'Action
De Nov 2023 à Nov 2024 Plus de graphiques de la Bourse Rockwell Medical