As filed with the Securities and Exchange Commission on July 20, 2006
Registration No. 333-________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ROCKWELL MEDICAL TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Michigan 38-3317208
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
30142 Wixom Road, Wixom, Michigan 48393
(Address of Principal Executive Offices) (Zip Code)
ROCKWELL MEDICAL TECHNOLOGIES, INC. 1997 STOCK OPTION PLAN
(Full title of the plan)
ROBERT L. CHIOINI
President and Chief Executive Officer
Rockwell Medical Technologies, Inc.
30142 Wixom Road
Wixom, Michigan 48393
(Name and address of agent for service)
(248) 960-9009
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed
maximum
Title of offering Proposed
securities Amount to be price maximum aggregate Amount of
to be registered registered per share offering price registration fee
---------------- -------------- --------- ----------------- ----------------
Common Shares(1) 250,000 shares $7.01(2) $1,752,500 $187.52
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(1) No par value per share.
(2) Calculated pursuant to Rules 457(h) and 457(c) solely for the purpose of
computing the registration fee and based on the average of the high and low
sales prices of the common shares, as quoted on The Nasdaq Capital Market,
on July 14, 2006.
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Page 1 of 11 Pages
Exhibit Index is on Page 9
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
registration statement:
1. Our Annual Report on Form 10-KSB for the fiscal year ended December 31,
2005 as filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934.
2. Our Current Reports on Form 8-K, dated January 19, 2006, April 11, 2006,
May 30, 2006 and June 23, 2006, and our Quarterly Report on Form 10-QSB for
the quarter ended March 31, 2006, all as filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, and
all other reports we filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of our fiscal year ended
December 31, 2005.
3. The description of our common shares contained in Item 1 of our
registration statement on Form 8-A filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934 on January 23,
1998, as incorporated by reference from our registration statement on Form
SB-2 (file no. 333-31991) initially filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933 on July 24, 1997,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by us pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, before the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part of
this registration statement from the date of filing of such documents.
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 Michigan Business Corporation Act, as amended, authorizes a Michigan
corporation under specified circumstances to indemnify its directors and
officers (including reimbursement for expenses incurred). The provisions of the
Company's Bylaws relating to indemnification of
Page 2 of 11 Pages
directors and officers generally provide that present and former directors and
officers will be indemnified to the fullest extent permissible under Michigan
law. The provision also provides for the advancement of litigation expenses at
the request of a director or officer. These obligations are broad enough to
permit indemnification with respect to liabilities arising under the Securities
Act or the Michigan Uniform Securities Act, as amended. The Company believes
that such indemnification will assist the Company in continuing to attract and
retain talented directors and officers in light of the risk of litigation
directed against directors and officers of publicly-held corporations.
The Michigan Business Corporation Act, as amended, also permits Michigan
corporations to limit the personal liability of directors for a breach of their
fiduciary duty. The provisions of the Company's Articles of Incorporation limit
director liability to the maximum extent currently permitted by Michigan law.
Michigan law allows a corporation to provide in its articles of incorporation
that a director of the corporation will not be personally liable to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability for specified acts. As a result of the
inclusion of such a provision, shareholders of the Company may be unable to
recover monetary damages against directors for actions taken by them which
constitute negligence or gross negligence or which are in violation of their
fiduciary duties, although it may be possible to obtain injunctive or other
equitable relief with respect to such actions. If equitable remedies are found
not to be available to shareholders in any particular case, shareholders may not
have any effective remedy against the challenged conduct. These provisions,
however, do not affect liability under the Securities Act.
In addition, the Company has obtained Directors' and Officers' liability
insurance. The policy provides for $4,000,000 in coverage including prior acts
dating to the Company's inception and liabilities under the Securities Act in
connection with this offering.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Articles of Incorporation of the Company, incorporated by reference to
Exhibit 3(i).1 to the Company's Registration Statement on Form SB-2,
File No. 333-31991 filed on July 24, 1997.
4.2 Certificate of Amendment to Articles of Incorporation of the Company,
incorporated by reference to Exhibit 3(i).2 to the Company's
Registration Statement on Form SB-2, File No. 333-31991 filed on July
24, 1997.
4.3 Certificate of Correction to Articles of Incorporation of the Company,
incorporated by reference to Exhibit 3(i).3 to the Company's
Registration Statement on Form SB-2, File No. 333-31991 filed on July
24, 1997.
Page 3 of 11 Pages
4.4 Certificate of Amendment to Articles of Incorporation of the Company,
incorporated by reference to Exhibit 3(i).4 to the Company's
Registration Statement on Form SB-2, File No. 333-31991 filed on July
24, 1997.
4.5 Bylaws of the Company, incorporated by reference to Exhibit 3(ii) to
the Company's Registration Statement on Form SB-2, File No. 333-31991
filed on July 24, 1997.
4.6 Rockwell Medical Technologies, Inc. 1997 Stock Option Plan,
incorporated by reference to Appendix A of the Company's Proxy
Statement for the 2006 Annual Meeting of Shareholders filed on April
17, 2006.
5.1 Opinion of Honigman Miller Schwartz and Cohn LLP.
23.1 Consent of Plante & Moran, PLLC.
23.2 Consent of Honigman Miller Schwartz and Cohn LLP (included in the
opinion filed as Exhibit 5.1 to this registration statement).
24.1 Powers of Attorney (included after the signature of the Registrant
contained on page 7 of this registration statement).
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 a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
Page 4 of 11 Pages
(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
(A) paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic 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; and
(B) Provided further, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is for an
offering of asset-backed securities on Form S-1 or Form S-3, and the
information required to be included in a post-effective amendment is
provided pursuant to Item 1100(c) of Regulation AB.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the
termination of the offering.
(b) The undersigned registrant herby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 of 1933 (the "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.
Page 5 of 11 Pages
EXPERTS
The financial statements incorporated in this registration statement by
reference from Rockwell Medical Technology, Inc.'s Annual Report on Form 10-KSB
for the year ended December 31, 2005 have been audited by Plante & Moran, PLLC,
an independent registered public accounting firm, as stated in their report,
which is incorporated herein by reference, and have been so incorporated in
reliance upon the report of such firm given upon their authority as experts in
accounting and auditing.
Page 6 of 11 Pages
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 July 19, 2006.
ROCKWELL MEDICAL TECHNOLOGIES, INC.
(Registrant)
By: /s/ Robert L. Chioini
------------------------------------
Robert L. Chioini
Its: President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned officers
and directors of Rockwell Medical Technologies, Inc., a Michigan corporation
(the "Company"), hereby constitutes and appoints Robert L. Chioini and Thomas E.
Klema, and each of them (with full power of substitution and re-substitution),
his true and lawful attorneys-in-fact and agents for each of the undersigned and
on his behalf and in his name, place and stead, in any and all capacities, with
full power and authority in such attorneys-in-fact and agents and in any one or
more of them, to sign, execute and affix his seal thereto and file with the
Securities and Exchange Commission and any state securities regulatory board or
commission the proposed registration statement on Form S-8 to be filed by the
Company under the Securities Act of 1933, as amended, which registration
statement relates to the registration and issuance of Common Shares by the
Company pursuant to the Rockwell Medical Technologies, Inc. 1997 Stock Option
Plan, any of the documents relating to such registration statement, any and all
amendments or supplements to such registration statement, including any
amendment or supplement thereto changing the amount of securities for which
registration is being sought, any post-effective amendment, and any registration
statement or amendment to such registration statement for the same offering that
is to be effective upon filing pursuant to Rule 462(b) under the Securities Act
of 1933, with all exhibits and any and all documents required to be filed with
respect thereto or with any regulatory authority, including, without limitation,
The Nasdaq Stock Market, the National Association of Securities Dealers, Inc.
and any federal or state regulatory authority pertaining to such registration
statement; granting unto such attorneys-in-fact, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises in order to effectuate the same
as fully to all intents and purposes as he might or could do if personally
present, hereby ratifying and confirming all that such attorneys-in-fact and
agents, and each of them and any of their substitutes, may lawfully do or cause
to be done by virtue of this Power of Attorney.
Page 7 of 11 Pages
Pursuant to the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities and on the dates
indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Robert L. Chioini President, Chief Executive Officer July 19, 2006
------------------------------ and Director (Principal Executive Officer)
Robert L. Chioini
/s/ Thomas E. Klema Vice President of Finance, Chief July 19, 2006
------------------------------ Financial Officer, Treasurer and
Thomas E. Klema Secretary (Principal Financial
Officer and Principal Accounting Officer)
/s/ Kenneth L. Holt Director July 19, 2006
------------------------------
Kenneth L. Holt
/s/ Robert D. Boyd Director July 19, 2006
------------------------------
Robert D. Boyd
/s/ Patrick J. Bagley Director July 19, 2006
------------------------------
Patrick J. Bagley
Page 8 of 11 Pages
INDEX TO EXHIBITS
4.1 Articles of Incorporation of the Company, incorporated by reference to
Exhibit 3(i).1 to the Company's Registration Statement on Form SB-2, File
No. 333-31991 filed on July 24, 1997.
4.2 Certificate of Amendment to Articles of Incorporation of the Company,
incorporated by reference to Exhibit 3(i).2 to the Company's Registration
Statement on Form SB-2, File No. 333-31991 filed on July 24, 1997.
4.3 Certificate of Correction to Articles of Incorporation of the Company,
incorporated by reference to Exhibit 3(i).3 to the Company's Registration
Statement on Form SB-2, File No. 333-31991 filed on July 24, 1997.
4.4 Certificate of Amendment to Articles of Incorporation of the Company,
incorporated by reference to Exhibit 3(i).4 to the Company's Registration
Statement on Form SB-2, File No. 333-31991 filed on July 24, 1997.
4.5 Bylaws of the Company, incorporated by reference to Exhibit 3(ii) to the
Company's Registration Statement on Form SB-2, File No. 333-31991 filed on
July 24, 1997.
4.6 Rockwell Medical Technologies, Inc. 1997 Stock Option Plan, incorporated by
reference to Appendix A of the Company's Proxy Statement for the 2006
Annual Meeting of Shareholders filed on April 17, 2006.
5.1 Opinion of Honigman Miller Schwartz and Cohn LLP.
23.1 Consent of Plante & Moran, PLLC.
23.2 Consent of Honigman Miller Schwartz and Cohn LLP (included in the opinion
filed as Exhibit 5.1 to this registration statement).
24.1 Powers of Attorney (included after the signature of the Registrant
contained on page 7 of this registration statement).
Page 9 of 11 Pages