AMPE Ampio Pharmaceuticals Inc

 

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 8^th 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;

 

(b)

The portions of the definitive proxy statement on Schedule 14A filed on June 14, 2023 and the definitive additional proxy materials filed on July 13, 2023 for the Company’s 2023 Annual Meeting of Stockholders held on July 27, 2023 that are incorporated by reference into the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022;

 

(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.

 

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel.

 

Not applicable.

 

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.

 

Not applicable.

 

Item 8.

Exhibits.

 

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.

 

 

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 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.

 

 

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