As filed with the Securities and Exchange Commission on May 24, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549


FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933


Nuwellis, Inc.
(Exact name of registrant as specified in its charter)

Delaware
 
68-0533453
(State or other jurisdiction of 
incorporation or organization)
 
(I.R.S. Employer Identification No.)

12988 Valley View Road
Eden Prairie, Minnesota
 
55344
(Address of Principal Executive Offices)
 
(Zip Code)

Nuwellis, Inc. 2021 Inducement Plan
(Full title of the plan)

Nestor Jaramillo
Chief Executive Officer
Nuwellis, Inc.
12988 Valley View Road
Eden Prairie, MN 55344
(952) 345-4200
(Name, address and telephone number, including area code, of agent for service)
Copy to:

Phillip D. Torrence, Esq.
Honigman LLP
650 Trade Center Way, Ste 200
Kalamazoo, MI 49002
(269) 337-7700

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  ☐   Accelerated filer  ☐
Non-accelerated filer  ☒   Smaller reporting company  ☒
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. ☐

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 per share
                       
Nuwellis, Inc. 2021 Inducement Plan
   
250,000
   
$
3.59
(2)
 
$
897,500
(2)
 
$
97.92
 
Total:
                 
$
897,500
   
$
97.92
 

(1)
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock (“Common Stock”) that become issuable under the plan set forth herein by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of the Registrant’s outstanding common stock, as applicable.

(2)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act. The offering price per share and aggregate offering price are based on the average of the high and low prices of the Registrant’s Common Stock as reported on the Nasdaq Capital Market on May 19, 2021.

EXPLANATORY NOTE

On May 19, 2021, Nuwellis, Inc (the “Company” the “Registrant,” “we,” “us,” or “our”) adopted the Nuwellis, Inc. 2021 Inducement Plan (the “Inducement Plan”), pursuant to which the Company reserved 250,000 shares of its common stock, par value $0.0001 per share (the “Common Stock”) to be used exclusively for grants of equity-based awards to individuals who were not previously employees or directors of the Company, as an inducement material to the individual’s entry into employment with the Company within the meaning of Rule 5635(c)(4) of the Nasdaq Listing Rules. The Inducement Plan provides for the grant of equity-based awards in the form of nonstatutory stock options, restricted stock awards, restricted stock unit awards, performance stock awards, and other stock awards. The Inducement Plan was adopted by our board of directors without stockholder approval pursuant to Rule 5635(c)(4) of the Nasdaq Listing Rules.

PART I

INFORMATION REQUIRED IN PROSPECTUS

The information specified in Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the plan covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.
Incorporation of Documents by Reference.

The following documents filed with the Commission by the Registrant are hereby incorporated by reference in this Registration Statement:

(a)
The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2020, filed with the Commission on March 25, 2021;

(b)
The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2021, filed on May 13, 2021;

(c)
The Registrant’s Current Reports on Form 8-K filed with the Commission on January 19, 2021, February 23, 2021 (as amended on February 25, 2021), March 17, 2021, April 5, 2021, April 27, 2021 and May 20, 2021; and

(d)
The description of the Registrant’s Common Stock contained in the Registration Statement on Form 10 (File No. 001-35312) filed pursuant to Section 12(b) on September 30, 2011 and all amendments thereto.

In addition, all documents the Registrant subsequently files pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities covered hereby then remaining unsold are incorporated by reference in this Registration Statement and are a part hereof from the date of filing of such documents. Notwithstanding anything herein, the Registrant is not incorporating by reference any information furnished under Item 2.02 or Item 7.01 of any Current Report on Form 8-K, unless, and to the extent, specified in any such Current Report on Form 8-K.

Any statement contained in a document incorporated or deemed to be incorporated by reference herein 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 subsequently filed document, which also is or is deemed to be incorporated by reference herein, modifies or supersedes such prior statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.

1
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 Registrant’s Fourth Amended and Restated Certificate of Incorporation, as amended, limits the liability of the Registrant’s directors to the fullest extent permitted by Delaware law.  Delaware law provides that directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability for any:

•
breach of their duty of loyalty to the Registrant or the Registrant’s stockholders;

•
act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

•
unlawful payment of dividends or redemption of shares as provided in Section 174 of the Delaware General Corporation Law (the “DGCL”); or

•
transaction from which the directors derived an improper personal benefit.

These limitations of liability do not apply to liabilities arising under federal securities laws and do not affect the availability of equitable remedies such as injunctive relief or rescission.

The Registrant’s Third Amended and Restated Bylaws (the “Bylaws”) provide that it will indemnify and advance expenses to its directors and officers to the fullest extent permitted by law or, if applicable, pursuant to indemnification agreements. The Bylaws further provide that the Registrant may choose to indemnify its other employees or agents from time to time. Subject to certain exceptions and procedures, the Bylaws also require it to advance to any person who was or is a party, or is threatened to be made a party, to any proceeding by reason of the person’s service as one of the Registrant’s directors or officers all expenses incurred by the person in connection with such proceeding.

The Bylaws and Section 145(g) of the DGCL also permit it to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in connection with their services to us, regardless of whether the Bylaws permit indemnification. The Registrant maintains a directors’ and officers’ liability insurance policy.

The Registrant entered into indemnification agreements with each of its directors and executive officers that provide, in general, that the Registrant will indemnify them to the fullest extent permitted by law in connection with their service to the Registrant or on its behalf and, subject to certain exceptions and procedures, that the Registrant will advance to them all expenses that they incur in connection with any proceeding to which they are, or are threatened to be, a party.

At present, there is no pending litigation or proceeding involving any of the Registrant’s directors or officers as to which indemnification is required or permitted, and the Registrant is not aware of any threatened litigation or proceeding that may result in a claim for indemnification.

2
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 this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

Item 7.
Exemption from Registration Claimed.

Not applicable.

Item 8.
Exhibits.

EXHIBIT INDEX

The following exhibits are filed as part of this registration statement.

     
Incorporated By Reference
   
Exhibit  Number
 
Exhibit 
Description
Form
File 
Number
Date of First
Filing
Exhibit
Number
Filed
Herewith
4.1
 
10
001-35312
February 1, 2012
3.1
 
               
4.2
 
8-K
001-35312
January 13, 2017
3.1
 
               
4.3
 
8-K
001-35312
May 23, 2017
3.1
 
               
4.4
 
8-K
001-35312
October 12, 2017
3.1
 
               
4.5
 
8-K
001-35312
January 2, 2019
3.1
 
               
4.6
 
8-K/A
001-35312
October 16, 2020
3.1
 
               
4.7
 
8-K
001-35312
April 27, 2021
3.1
 
               
4.8
 
8-K
001-35312
April 27, 2021
3.2
 
               
4.9
 
8-K
001-35312
June 14, 2013
3.1
 
               
4.10
 
S-1/A
333-221010
November 17, 2017
3.7
 

3
     
Incorporated By Reference
   
Exhibit  Number
 
Exhibit
Description
Form
File
Number
Date of First
Filing
Exhibit
  Number
Filed
Herewith
4.11
 
8-K
001-35312
August 8, 2016
4.1
 
               
5.1
         
X
               
23.1
         
X
               
23.2
         
Included in Exhibit 5.1
               
24
         
X
               
99.1
 
14A
001-35312
April 5, 2013
App. A
 
               
99.2
 
10-Q
001-35312
August 8, 2013
10.1
 
               
99.3
 
10-Q
001-35312
November 12, 2013
10.1
 
               
99.4
 
S-8
333-202904
March 20, 2015
99.12
 
               
99.5
 
S-8
333-210215
March 15, 2016
99.13
 
               
99.6
 
8-K
001-35312
May 30, 2017
10.4
 
               
99.7
 
8-K
001-35312
January 18, 2018
10.1
 
               
99.8
 
10-Q
001-35312
August 8, 2019
10.2
 
               
99.9
 
8-K
001-35312
December 6, 2019
10.1
 
               
99.10
 
8-K
001-35312
February 23, 2021
10.1
 
               
99.11
 
8-K
001-35312
May 30, 2017
10.1
 
               
99.12
 
14A
001-35312
September 11, 2020
App. A
 
               
99.13
         
X

†
Indicates management compensatory plan, contract or arrangement.

4
Item 9.
Undertakings.

(a)   The 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 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

 
(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 periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement; and

 
(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.

 
(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 Registrant hereby undertakes that, for the 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue.

5
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 Eden Prairie, State of Minnesota, on May 24, 2021.

 
NUWELLIS, INC.
     
 
By:
/s/ Nestor Jaramillo
 
 
Name:
Nestor Jaramillo
 
Title:
President and Chief Executive Officer

We, the undersigned officers and directors of Nuwellis, Inc., hereby constitute Nestor Jaramillo, as the true and lawful attorney with full power to sign for us and in our names, in the capacities indicated below the Registration Statement filed herewith and any amendments to said Registration Statement, and generally to do all such things in our name and behalf in our capacities as officers and directors to enable Nuwellis, Inc. to comply with the provisions of the Securities Act of 1933 and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and any and all amendments thereto.  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 dates indicated.

SIGNATURE
TITLE
DATE
     
/s/ Nestor Jaramillo
President, CEO, Interim CFO, and Chairman
May 24, 2021
Nestor Jaramillo
(principal executive officer and principal financial officer)
 
     
/s/ Paul Wotta
Controller
May 24, 2021
Paul Wotta
(principal accounting officer)
 
     
/s/ Steve Brandt
Director
May 24, 2021
Steve Brandt
   
     
/s/ Maria Rosa Costanzo
Director
May 24, 2021
Maria Rosa Costanzo
   
     
/s/ John L. Erb
Director
May 24, 2021
John L. Erb
   
     
/s/ Jon W. Salveson
Director
May 24, 2021
Jon W. Salveson
   
     
/s/ Gregory D. Waller
Director
May 24, 2021
Gregory D. Waller
   
     
/s/ Warren S. Watson
Director
May 24, 2021
Warren S. Watson
   


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