File No. 333-                       
 
As filed with the Securities and Exchange Commission on June 2, 2020.
 
 
 
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
 (State or Other Jurisdiction of
Incorporation or Organization)
 
38-3317208
 (I.R.S. Employer
Identification No.)
 
 
 
411 Hackensack Avenue, Suite 501
Hackensack, New Jersey 07601
(Address of Principal Executive Offices)
 

Rockwell Medical, Inc. 2018 Long Term Incentive Plan
(Full Title of the Plans)
 
Russell Ellison
President and Chief Executive Officer
411 Hackensack Avenue, Suite 501
Hackensack, New Jersey 07601
Telephone: (248) 960-9009
(Name, address, and telephone number, including area code, of agent for service)

 
 
 
 
Copy to:

Ryan A. Murr, Esq.
Gibson, Dunn & Crutcher LLP
555 Mission Street, Suite 3000
San Francisco, California 94105
Telephone: (415) 393-8373
Facsimile: (415) 374-8430
 
 
 
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller 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 o
 
 
 
 
 
Accelerated filer x
Non-accelerated filer o
 
 
 
 
 
Smaller reporting company x
Emerging growth company o
 
 
 
 
 
 
 
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.         o




CALCULATION OF REGISTRATION FEE
 
 
 
 
 
 
 
 
 
 
Title of Securities
to be Registered
 
Amount
to be
Registered (1)
 
Proposed
Maximum
Offering Price
per Share
  
Proposed
Maximum
Aggregate
Offering Price
 
Amount of
Registration Fee
Common Stock, par value $0.0001, reserved under the Rockwell Medical, Inc. 2018 Long Term Incentive Plan, as amended
 
2,900,000
 
$2.11(2)
 
$6,119,000(2)
 
$794.25
(1)
Pursuant to Rule 416(a) under 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)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 under the Securities Act, based on the average of the high and low prices of the common stock, par value $0.0001 per share (the “Common Stock”) of Rockwell Medical, Inc. (the “Company” or the “Registrant”) on the Nasdaq Global Market on June 1, 2020.

 
 
 
 
 
 
 
 
 
 

EXPLANATORY NOTE
 
This Registration Statement on Form S-8 is filed for the purpose of registering additional securities of the same class as other securities for which a registration statement on Form S-8 relating to an employee benefit plan is effective. The Registrant previously registered shares of Common Stock for issuance under the Rockwell Medical, Inc. 2018 Long Term Incentive Plan, as amended (the “2018 Plan”) under a Registration Statement on Form S-8 filed with the U.S. Securities and Exchange Commission on September 14, 2018 (File No. 333-227365) (the “Prior Registration Statement”). Accordingly, pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Prior Registration Statement to the extent relating to registration of shares of Common Stock for issuance under the 2018 Plan, except for “Item 8. Exhibits.”

Part I

Information Required in the Section 10(a) Prospectus

The documents containing the information specified in Part I of Form S-8 will be sent or given to the participants in the 2018 Plan as specified by Rule 428(b)(1) of the Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II
 
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
Item 3. Incorporation of Documents by Reference.

The following documents, which have been filed with the Commission, are incorporated by reference into this Registration Statement and shall be deemed a part hereof, provided, however, that we are not incorporating by reference any information furnished (but not filed) under Item 2.02 or Item 7.01 of any Current Report on Form 8-K, except as specified below:
(1)
The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed on March 17, 2020; and
(2)
All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) since the end of the fiscal year covered by the Company’s Annual Report referred to in (1) above; and




(3)
The description of the Registrant’s common stock contained in the Company’s Registration Statement on Form 8-A, filed with the Commission on January 23, 1998, including any amendment or report filed for the purpose of updating such description.
In addition, all documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and made part hereof from their respective dates of filing (such documents, and the documents listed above, being hereinafter referred to as “Incorporated Documents”); provided, however, that the documents listed above or subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act in each year during which the offering made by this Registration Statement is in effect prior to the filing with the Commission of the Company’s Annual Report on Form 10-K covering such year shall cease to be Incorporated Documents or be incorporated by reference in this Registration Statement from and after the filing of such Annual Reports. Notwithstanding the foregoing, a report furnished on Form 8-K shall not be incorporated by reference herein unless expressly incorporated by reference.

Any statement contained herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed Incorporated Document modifies or supersedes such statement. Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed Incorporated Document modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
 
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 incorporated under the Delaware General Corporation Law (the “DGCL”). Section 145(a) of the DGCL provides that a Delaware corporation shall have the power to 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 the 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 the person’s conduct was unlawful.

Section 145(b) of the DGCL provides that a Delaware corporation shall have the power to 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 the person in connection with the defense or settlement of such action or suit if the person acted under standards similar to those discussed above, 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 that despite the adjudication of liability, such person is fairly and reasonably entitled to be indemnified for such expenses which the Court of Chancery or such other court shall deem proper.

Section 145 of the DGCL further provides that to the extent a director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to in subsections (a) and (b) 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; and that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the corporation shall have power to purchase and maintain insurance on behalf of a director or officer of the corporation 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.

Section 102(b)(7) of the DGCL provides that a corporation may eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provisions shall not eliminate or limit the liability of a director (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (3) under section 174 of the DGCL or (4) for any transaction from which the director derived an improper personal benefit. No such provision shall eliminate or limit the liability of a director for any act or omission occurring before the date when such provision becomes effective.

Article X of the Company’s Certificate of Incorporation provides that no director of the Company shall be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL and Article VI of the Company’s Bylaws provides for the indemnification of each of the Company’s directors, officers, employees or agents to the fullest extent permitted by the DGCL or other applicable laws presently or hereafter in effect. Specifically, Article VI of the Company’s Bylaws provides that each person who was or is a party or is threatened to be made a party to, or was or is otherwise involved in, any action, suit, arbitration, alternative dispute resolution mechanism, investigation, inquiry, judicial, administrative or legislative hearing, or any other threatened, pending or completed proceeding, whether brought by or in the right of the Company or otherwise, including any and all appeals, whether of a civil, criminal, administrative, legislative, investigative or other nature (hereinafter a "proceeding"), by reason of the fact that he or she is or was a director or an officer of the Company or while a director or officer of the Company is or was serving at the request of the Company as a director, officer, employee, agent or trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an "indemnitee"), or by reason of anything done or not done by him or her in any such capacity, shall be indemnified and held harmless by the Company to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes, penalties and amounts paid in settlement by or on behalf of the indemnitee) actually and reasonably incurred by such indemnitee in connection therewith; provided, however, that, except as otherwise required by law or provided in the Bylaws with respect to suits to enforce indemnification rights under the Bylaws, the Company shall indemnify any such indemnitee in connection with a proceeding, or part thereof, voluntarily initiated by such indemnitee (including claims and counterclaims, whether such counterclaims are asserted by: (i) such indemnitee; or (ii) the Company in a proceeding initiated by such indemnitee) only if such proceeding, or part thereof, was authorized or ratified by the Board of Directors or the Board of Directors otherwise determines that indemnification or advancement of expenses is appropriate. In addition, an indemnity shall, to the fullest extent permitted by law, also have the right to be paid by the Company the expenses (including attorneys' fees) incurred in defending any proceeding in advance of its final disposition (hereinafter an "advancement of expenses"); provided, however, that an advancement of expenses shall be made only upon delivery to the Company of an undertaking, by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that such indemnitee is not entitled to be indemnified for such expenses.

The Company also maintains and pays premiums on a directors’ and officers’ liability insurance policy and has entered into indemnity agreements with its directors and officers providing for indemnification to the fullest extent permitted under the DGCL.

Item 7. Exemption from Registration Claimed
 
Not applicable.

Item 8. Exhibits





Exhibit
 
 
Number
 
Description
 
 
 
4.1

 
 
 
 
4.2

 
 
 
 
5.1

 
 
 
 
23.1

 
 
 
 
23.2

 
 
 
 
24.1

 
Power of Attorney (included as part of signature page)*
 
 
 
99.1

 
 
 
 
* 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 SEC 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 SEC 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; and





(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 Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 Securities and Exchange 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 on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in Hackensack, New Jersey on June 2, 2020.

 
 
 
ROCKWELL MEDICAL, INC.
 
 
 
 
 
 
By:
/s/ Russell Ellison
 
 
 
Russell Ellison
 
 
 
President and Chief Executive Officer
 
Each of the undersigned hereby constitutes and appoints each of Russell Ellison and Angus Smith, his attorney-in-fact, with power of substitution, in his name and in the capacity indicated below, to sign any and all further amendments (including post-effective amendments) to this Registration Statement on Form S-8 and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.

 




Signature
 
Title
 
Date
 
 
 
 
 
/s/ Russell Ellison
 
President, Chief Executive Officer and Director
 
June 2, 2020
Russell Ellison
 
(Principal Executive Officer)
 
 
 
 
 
 
 
/s/ Angus Smith
 
Chief Financial Officer
 
June 2, 2020
Angus Smith
 
(Principal Financial Officer)
 
 
 
 
 
 
 
/s/ Paul E. McGarry
 
Principal Accounting Officer
 
June 2, 2020
Paul E. McGarry
 
 
 
 
 
 
 
 
 
/s/ John P. McLaughlin
 
Director
 
June 2, 2020
John P. McLaughlin
 
 
 
 
 
 
 
 
 
/s/ John G. Cooper
 
Director
 
June 2, 2020
John G. Cooper
 
 
 
 
 
 
 
 
 
/s/ Robert S. Radie
 
Director 
 
June 2, 2020
Robert S. Radie
 
 
 
 
 
 
 
 
 
/s/ Mark H. Ravich
 
Director 
 
June 2, 2020
Mark H. Ravich
 
 
 
 
 
 
 
 
 



Exhibit

GIBSON DUNN
 
Gibson, Dunn & Crutcher LLP
2029 Century Park East
Los Angeles, CA 90067-3026
Tel 301.552.8500
www.gibsondunn.com


EXHIBIT 5.1
June 2, 2020

Rockwell Medical, Inc.
411 Hackensack Avenue, Suite 501
Hackensack, New Jersey 07601
Re:
Rockwell Medical, Inc. 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 2,900,000 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), issuable to eligible individuals under the Rockwell Medical, Inc. 2018 Long Term Incentive Plan, as amended (the “2018 Plan”).
We have examined the 2018 Plan and the originals, or photostatic or certified copies, of such records of the Company and certificates of officers of the Company and of public officials and such other documents as we have deemed relevant and necessary as the basis for the opinion set forth below. We have also made such other investigations as we have deemed relevant and necessary or appropriate in connection with the opinion hereinafter set forth. In our examination, we have assumed 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. We have also assumed that there are no agreements or understandings between or among the Company and any participants in the 2018 Plan that would expand, modify or otherwise affect the terms of the 2018 Plan or the respective rights or obligations of the participants thereunder. Finally, we have assumed the accuracy of all other information provided to us by the Company during the course of our investigations, on which we have relied in issuing the opinion expressed below.
Based upon the foregoing examination and in reliance thereon, and subject to the assumptions stated herein and in reliance on statements of fact contained in the documents that we have examined, we are of the opinion that the shares of Common Stock issuable under the 2018 Plan, when issued and sold in accordance with the terms of the 2018 Plan and against payment therefor, and when the Registration Statement has become effective under the Securities Act, 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 law 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.

Beijing • Brussels • Century City • Dallas • Denver • Dubai • Frankfurt • Hong Kong • Houston • London • Los Angeles • Munich • New York • Orange County • Palo Alto • Paris • San Francisco • São Paulo • Singapore • Washington D.C.


GIBSON DUNN
 
Gibson, Dunn & Crutcher LLP
2029 Century Park East
Los Angeles, CA 90067-3026
Tel 301.552.8500
www.gibsondunn.com


We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, 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
Exhibit 23.1





INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT


We consent to the incorporation by reference in this Registration Statement of Rockwell Medical, Inc. and Subsidiaries (the “Company”) on Form S-8 of our report dated March 16, 2020 (which report includes an emphasis of a matter paragraph due to the Company’s adoption of a new accounting standard on Topic 842 - Leases), with respect to our audits of the consolidated financial statements of Rockwell Medical, Inc. and Subsidiaries as of December 31, 2019 and 2018, and for each of the two years in the period ended December 31, 2019, and our report dated March 16, 2020 with respect to our audit of the effectiveness of internal control over financial reporting of Rockwell Medical, Inc. and Subsidiaries as of December 31, 2019 appearing in the Annual Report on Form 10-K of Rockwell Medical, Inc. and Subsidiaries for the year ended December 31, 2019, filed with the U.S. Securities and Exchange Commission on March 17, 2020. Our report on the effectiveness of internal control over financial reporting expressed an adverse opinion because of the existence of material weaknesses.

/s/ Marcum llp

Marcum llp
Chicago, IL
June 2, 2020