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 |
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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 |
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¨ |
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Accelerated filer |
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¨ |
| Non-accelerated filer |
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x |
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Smaller reporting company |
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x |
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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:
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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; |
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.
*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.
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ROCKWELL MEDICAL, INC. |
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By: |
/s/ Mark Strobeck, Ph.D. |
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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 |
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Title |
Date |
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/s/ Mark Strobeck,
Ph.D. |
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President, Chief Executive Officer and Director |
October 8, 2024 |
| Mark Strobeck, Ph.D. |
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(Principal Executive Officer and Principal Financial Officer) |
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/s/ Jesse Neri |
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Senior Vice President, Finance and Principal Accounting Officer |
October 8, 2024 |
| Jesse Neri |
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/s/ John G.
Cooper |
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Director |
October 8, 2024 |
| John G. Cooper |
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/s/ Joan Lau, Ph.D. |
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Director |
October 8, 2024 |
| Joan Lau, Ph.D. |
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/s/ Allen Nissenson,
MD |
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Director |
October 8, 2024 |
| Allen Nissenson, MD |
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/s/ Robert S.
Radie |
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Director |
October 8, 2024 |
| Robert S. Radie |
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/s/ Mark H.
Ravich |
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Director |
October 8, 2024 |
| Mark H. Ravich |
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/s/ Andrea Heslin
Smiley |
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Director |
October 8, 2024 |
| Andrea Heslin Smiley |
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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. |
Grafico Azioni Rockwell Medical (NASDAQ:RMTI)
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