As filed with the Securities and Exchange Commission
on August 15, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
AMPIO PHARMACEUTICALS, INC.
(Exact name of Registrant as specified in its charter)
| Delaware |
26-0179592 |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| 9800 Mount Pyramid Court, Suite 400 |
|
| Englewood, Colorado |
80112 |
| (Address of Principal Executive Offices) |
(Zip Code) |
Ampio Pharmaceuticals, Inc.
2023 Stock and Incentive Plan
(Full title of the plan)
Michael A. Martino
Chief Executive Officer
Ampio Pharmaceuticals, Inc.
9800 Mount Pyramid Court, Suite 400
Englewood, Colorado 80112
(Name and address of agent for service)
(720) 437-6500
(Telephone number, including area code, of agent
for service)
With copy to:
April Hamlin
Ballard Spahr LLP
2000 IDS Center
80 South 8th Street
Minneapolis, MN 55402
(612) 371-3211
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 o |
|
Non-accelerated
filer 🗹 |
|
Smaller reporting
company 🗹 |
|
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
EXPLANATORY NOTE
On July 27, 2023, the stockholders of Ampio Pharmaceuticals, Inc.
(the “Company”) approved the Ampio Pharmaceuticals, Inc. 2023 Stock and Incentive Plan (the “2023 Plan”).
As provided in the 2023 Plan, 1,200,000 shares of the Company’s common stock, $0.0001 par value per share (the “Common Stock”),
are available for issuance thereunder. The purpose of this Registration Statement on Form S-8 (the “Registration Statement)
is to register an aggregate of 1,200,000 shares of Common Stock.
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 are hereby incorporated by reference:
| (a) | The Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed on March 27, 2023 and Amendment No. 1
to Annual Report on Form 10-K filed on April 28, 2023; |
| (c) | The Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed on May 8, 2023 and the Quarterly Report
on Form 10-Q for the quarter ended June 30, 2023, filed on August 8, 2023; |
| (d) | The Current Reports on Form 8-K filed (but not furnished) on January 17, 2023,
March 7, 2023, March 13, 2023, April 18, 2023, May 26, 2023, July 5, 2023 and August 1, 2023; and |
| (e) | The description of the Company’s common stock contained in Exhibit 4.5 to the Company’s Annual Report on Form 10-K
(No. 001-35182) for the fiscal year ended December 31, 2019, filed with the Commission on February 21, 2020, including
any amendment or report filed for the purpose of updating such description. |
All documents subsequently filed (but not furnished) by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the completion or termination of this offering of shares
of Common Stock will be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of
filing of these documents.
| Item 4. |
Description of Securities. |
| Item 5. |
Interests of Named Experts and Counsel. |
| Item 6. |
Indemnification of Directors and Officers. |
The Company is a corporate organized under the laws of the State of
Delaware and is subject to the Delaware General Corporation Law (“DGCL”).
Article IX of the Company’s Certificate of Incorporation
provides that, to the fullest extent permitted by the DGCL, a director of the Company shall not be liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director.
Section 145 of the DGCL permits a corporation to indemnify any
director, officer, employee or agent of the corporation against expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought by reason of the fact that
such person is or was a director or officer of the corporation, if such person acted in good faith and in a manner that he or she reasonably
believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, if
he or she had no reason to believe his or her conduct was unlawful. A similar standard is applicable in the case of actions brought by
or on behalf of the corporation (i.e., derivative actions), except that indemnification only extends to expenses (including attorneys’
fees) actually and reasonably incurred in connection with the defense or settlement of such action, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute
provides that it is not exclusive of other indemnification that may be granted by a corporation’s certificate of incorporation,
bylaws, disinterested director vote, stockholder vote, agreement or otherwise.
Article IX of the Company’s Certificate of Incorporation
requires the Company to indemnify, in the manner and to the fullest extent permitted by the DGCL, any person (or the estate of any person)
who is or was a party to, or is threatened to be made a party to, any threatened, pending or completed action, suit or proceeding, by
reason of the fact that such person is or was a director or officer of the Company, or is or was serving at the request of the Corporation
as a director or officer of another corporation, partnership, joint venture, trust or other enterprise.
Further,
Article XI of the Company’s bylaws requires the Company to indemnify its present and former directors and executive
officers (as that term is defined in Rule 3b-7 of the Securities and Exchange Act of 1934, as amended) for such expenses and liabilities,
in such manner, under such circumstances, and to the fullest extent, as required or permitted by the DGCL, as in effect from time to time.
The Company has the right to modify the indemnification provided for in the Company’s bylaws by individual contracts with its directors
and executive officers. Additionally, the Company’s bylaws provide that the Company shall not be required to indemnify any director
or executive officer in connection with any proceeding (or part thereof) initiated by such person unless (i) such indemnification
is expressly required to be made by law, (ii) the proceeding was authorized by the Board of Directors of the Company, (iii) such
indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the DGCL or any
other applicable law or (iv) such indemnification is required to be made pursuant to the enforcement provisions of the Company’s
bylaws.
The Company’s bylaws also authorize the Board, in its discretion,
to pay the expenses of any such action in advance of the final disposition of such action upon a written undertaking by such indemnitee
to repay such amounts if it shall ultimately be determined that he or she is not entitled to indemnification under the standard set by
the DGCL and the Company’s bylaws.
The Company has entered into indemnification agreements with each of
its directors and executive officers. The indemnification agreements provide indemnification to each director or executive officer, or
the Indemnitee, against all expenses, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by the
Indemnitee, or on his or her behalf if the Indemnitee is, or is threatened to be made, a party to or participant in any proceeding related
to his or her status as a director and/or executive officer of the Company, as long as the Indemnitee acted in good faith and in a manner
the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal proceeding,
had no reasonable cause to believe the Indemnitee’s conduct was unlawful. For proceedings by or in the right of the Company, indemnification
is provided as set forth above; provided, however, if applicable law so provides, no indemnification against such expenses will be made
in respect of any claim, issue or matter in such proceeding as to which Indemnitee shall have been adjudged to be liable to the Registrant
unless and to the extent that the Court of Chancery of the State of Delaware shall determine that such indemnification may be made.
The Company also maintains a director and officer
liability insurance policy.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, in the
opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
| Item 7. |
Exemption from Registration Claimed. |
| |
|
|
| Exhibit No. |
|
Description of Document |
| 4.1 |
|
Certificate of Incorporation of Chay Enterprises, Inc. (n/k/a Ampio Pharmaceuticals, Inc.) (incorporated by reference to Exhibit 3.3 to the Current Report on Form 8-K filed March 30, 2010). |
| 4.1(a) |
|
Certificate of Amendment to Certificate of Incorporation of Ampio Pharmaceuticals, Inc. (f/k/a Chay Enterprises, Inc.) (incorporated by reference to Exhibit 3.4 to the Current Report on Form 8-K filed March 30, 2010). |
| 4.1(b) |
|
Certificate of Amendment to Certificate of Incorporation of Ampio Pharmaceuticals, Inc. (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed December 18, 2019). |
| 4.1(c) |
|
Certificate of Amendment to Certificate of Incorporation of Ampio Pharmaceuticals, Inc. dated November 8, 2022 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed November 9, 2022). |
| 4.2 |
|
Bylaws of Ampio Pharmaceuticals, Inc., as amended (incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q for the quarter ended September 30, 2018 filed November 14, 2018). |
| 5.1 |
|
Opinion of Ballard Spahr LLP. |
| 10.1* |
|
Ampio Pharmaceuticals, Inc. 2023 Stock and Incentive Plan approved by stockholders on July 27, 2023 (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K filed August 1, 2023). |
| 23.1 |
|
Consent of Ballard Spahr LLP (included in Exhibit 5.1). |
| 23.2 |
|
Consent of Moss Adams LLP, Independent Registered Public Accounting Firm. |
| 24.1 |
|
Power of Attorney (included on signature page hereto). |
| 107.1 |
|
Filing Fee Table. |
| * | Indicates management contract or compensatory plan or arrangement. |
(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 of 1933;
(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 the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if 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 Exchange
Act that are incorporated by reference in this 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.
(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 liability under the Securities Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 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 Securities
and Exchange 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.
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 Englewood, State
of Colorado, on August 15, 2023.
| |
AMPIO PHARMACEUTICALS, INC. |
| |
|
| |
/s/ Michael A. Martino |
| |
Michael A. Martino |
| |
Chief Executive Officer |
POWER OF ATTORNEY
The undersigned officers and directors of Ampio Pharmaceuticals, Inc.
hereby constitute and appoint Michael A. Martino and Daniel G. Stokely, each acting alone, with power to act as our true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for us and in our stead, in any and all capacities to sign any and all
amendments (including post-effective amendments) to this Registration Statement and all documents relating thereto, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and every act and thing necessary or advisable to be done
in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his or her 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 has been signed below by the following persons in the capacities indicated on August 15, 2023.
| Signature |
|
Title |
| |
|
|
| /s/ Michael A. Martino |
|
Chief Executive Officer (principal executive |
| Michael A. Martino |
|
officer) and Director |
| |
|
|
| /s/ Daniel G. Stokely |
|
Chief Financial Officer |
| Daniel G. Stokely |
|
(principal financial and accounting officer) |
| |
|
|
| /s/ David R. Stevens |
|
Director |
| David R. Stevens |
|
|
| |
|
|
| /s/ J. Kevin Buchi |
|
Director |
| J. Kevin Buchi |
|
|
| |
|
|
| /s/ Elizabeth Varki Jobes |
|
Director |
| Elizabeth Varki Jobes |
|
|
| |
|
|
Exhibit 5.1
2000 IDS Center
80 South 8th Street
Minneapolis, MN 55402-2119
Tel: 612.371.3211
Fax: 612.271.3207
www.ballardspahr.com
August 15, 2023
Ampio Pharmaceuticals, Inc.
9800 Mount
Pyramid Court, Suite 400
Englewood, Colorado 80112
RE: Ampio
Pharmaceuticals, Inc. 2023 Stock and Incentive Plan
Ladies and Gentlemen:
We have acted as counsel to Ampio Pharmaceuticals, Inc., a Delaware
corporation (the “Company”), in connection with the registration by the Company under the Securities Act of 1933 (the “Act”)
of 1,200,000 shares of the Company’s common stock, par value $0.0001 per share (the “Shares”), pursuant to the Registration
Statement on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on the date hereof (such registration
statement, as amended to the date hereof, is herein referred to as the “Registration Statement”). The Shares may be offered
and sold under the Ampio Pharmaceuticals, Inc. 2023 Stock and Incentive Plan (the “Plan”).
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration Statement and all exhibits thereto, (ii) the
Certificate of Incorporation, as amended, of the Company as currently in effect, (iii) the Bylaws, as amended, of the Company as
currently in effect, (iv) the Plan, and (v) such corporate records, agreements, documents and other instruments, and such certificates
or comparable documents of public officials and officers and representatives of the Company, and have made such inquiries of such officers
and representatives and have considered such matters of law as we have deemed appropriate as the basis for the opinions hereinafter set
forth. As to facts material to this opinion letter, we have relied upon certificates, statements or representations of public officials,
of officers and representatives of the Company and of others, without any independent verification thereof.
In rendering this opinion, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to originals of
all documents submitted to us as certified, photostatic or conformed copies, the authenticity of originals of all such latter documents,
and the accuracy and completeness of all records, information and statements submitted to us by officers and representatives of the Company.
Ampio Pharmaceuticals, Inc.
August 15, 2023
Page 2
The opinion expressed below is based on the assumption that the Registration
Statement has been filed by the Company with the Commission and will have become effective before any of the Shares are issued, and that
persons acquiring the Shares will do so strictly in accordance with the terms of the Plan and will receive a prospectus containing all
the information required by Part I of the Registration Statement before acquiring such Shares. The opinion is also based on the
assumption that the Shares will continue to be duly and validly authorized on the dates that the Shares are issued to participants pursuant
to the terms of the Plan and, upon the issuance of any of the Shares, the total number of shares of common stock of the Company issued
and outstanding, after giving effect to such issuance of such Shares, will not exceed the total number of shares of common stock that
the Company is then authorized to issue under its Certificate of Incorporation, as amended. We have also assumed that the Company’s
board of directors, or a duly authorized committee thereof, will have approved the issuance of each award under the Plan prior to the
issuance thereof.
Based upon the foregoing, and subject to the qualifications, assumptions
and limitations stated herein, we are of the opinion that (a) the Shares to be issued under the Plan are duly authorized and (b) the
Shares, when issued pursuant to the Plan and any applicable award agreement in accordance with the terms and conditions thereof (including,
where applicable, the payment of any exercise price, the satisfaction of any vesting or forfeiture restrictions and the achievement of
applicable performance goals), will be legally issued, fully paid and non-assessable.
Our opinion is limited to the laws of the General Corporation Law of
the State of Delaware and the federal laws of the United States of America, and we express no opinion with respect to the laws of any
other jurisdiction.
We hereby consent to the filing of this opinion
with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation
S-K promulgated under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
Sincerely,
/s/ Ballard Spahr LLP
Exhibit 23.2
Consent of Independent Registered
Public Accounting Firm
We consent to the incorporation by reference
in this Registration Statement on Form S-8 of Ampio Pharmaceuticals, Inc., of our report dated March 27, 2023, relating
to the financial statements of Ampio Pharmaceuticals, Inc. (the “Company”) (which report expresses an unqualified opinion
and includes an explanatory paragraph relating to a going concern uncertainty), appearing in the Annual Report on Form 10-K of the
Company for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
/s/ Moss Adams LLP
Denver, Colorado
August 15,
2023
EXHIBIT 107.1
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Ampio Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
Security
Type |
Security
Class Title |
Fee
Calculation
Rule |
Amount
Registered(1)(2) |
Proposed
Maximum
Offering
Price Per
Unit(3) |
Maximum
Aggregate Offering
Price |
Fee
Rate |
Amount
of
Registration Fee |
| Equity |
Common
Stock, par value $0.0001 per share |
Rule 457(c) and
Rule 457(h) |
1,200,000 |
$0.205 |
$246,000 |
0.00011020 |
$27.11 |
| |
|
|
|
|
Total Offering
Amount: |
$27.11 |
| |
|
|
|
|
Total Fee
Offsets: |
- |
| |
|
|
|
|
Net Fee Due: |
$27.11 |
(1) Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), the registration statement on
Form S-8 shall also cover any additional shares of the common stock of Ampio Pharmaceuticals, Inc. (the “Registrant”)
that become issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number
of the outstanding shares of the Registrant’s common stock.
(2) As
described in the Explanatory Note to this Registration Statement, represents 1,200,000 shares that were authorized for issuance under
the Registrant’s 2023 Stock and Incentive Plan by approval of the Registrant’s stockholders on July 27, 2023.
(3) Estimated
solely for the purpose of calculating the registration fee and computed in accordance with Rule 457(c) and (h) under the
Securities Act using the average of the high and low sale prices of the common stock on August 11, 2023, as reported on the NYSE
American.
Ampio Pharmaceuticals (AMEX:AMPE)
Gráfica de Acción Histórica
De Abr 2024 a May 2024
Ampio Pharmaceuticals (AMEX:AMPE)
Gráfica de Acción Histórica
De May 2023 a May 2024
