S-1 1 tmb-20231221xs1.htm S-1

As filed with the Securities and Exchange Commission on December 21, 2023

Registration No. 333-______________

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

_________________________________________________________

FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

_________________________________________________________

AMPIO PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)

Delaware

(State or other jurisdiction of incorporation or organization)

2834

(Primary Standard Industrial

Classification Code Number)

26-0179592

(I.R.S. Employer

Identification Number)

9800 Mount Pyramid Court, Suite 400
Englewood, Colorado 80112
(720) 437-6500
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

_________________________________________________________

Michael A. Martino

Chief Executive Officer

Ampio Pharmaceuticals, Inc.

9800 Mount Pyramid Court, Suite 400

Englewood, Colorado 80112

(720) 437-6500

(Name, address, including zip code, and telephone number, including area code, of agent for service)

_________________________________________________________

Copies to:

April Hamlin, Esq.

Ballard Spahr LLP

2000 IDS Center

80 South 8th Street

Minneapolis, Minnesota 55402

(612) 371-3211

_________________________________________________________

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, check the following box. [X]

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting 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 [X]	Smaller Reporting Company [X]
	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 to Section 7(a)(2)(B) of the Securities Act. [_]

_________________________________________________________

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

	Per Share and Common Warrant	Per Pre-Funded Warrant and Common Warrant	Total
Public offering price	$	$	$
Placement agent fees⁽¹⁾	$	$	$
Proceeds, before expenses, to Ampio Pharmaceuticals, Inc.(2)	$	$	$

Securities offered by us	Up to shares of common stock and common warrants to purchase up to shares of common stock, or pre-funded warrants to purchase shares of common stock and common warrants to purchase shares of common stock. The shares of common stock or pre-funded warrants, respectively, and common warrants are immediately separable and will be issued separately in this offering but must initially be purchased together in this offering. Each common warrant has an exercise price of $ per share of common stock and is immediately exercisable and will expire five years from the original issuance date. See “Description of Securities We Are Offering.” We are also registering shares of common stock issuable upon exercise of the pre-funded warrants and the common warrants pursuant to this prospectus.

Pre-funded warrants offered by us in this offering:	We are also offering to each purchaser whose purchase of shares in this offering would otherwise result in the purchaser, together with its affiliates and certain related parties, beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding common stock immediately following the consummation of this offering, the opportunity to purchase, if the purchaser so chooses, pre-funded warrants (each pre-funded warrant to purchase one share of our common stock) in lieu of shares that would otherwise result in the purchaser’s beneficial ownership exceeding 4.99% of our outstanding common stock (or, at the election of the purchaser, 9.99%). The purchase price of each pre-funded warrant and accompanying common warrant will equal the price at which one share of common stock and accompanying warrant are being sold to the public in this offering, minus $0.0001, and the exercise price of each pre-funded warrant will be $0.0001 per share. The pre-funded warrants will be exercisable immediately and may be exercised at any time until all of the pre-funded warrants are exercised in full. For each pre-funded warrant we sell, the number of shares we are offering will be decreased on a one-for-one basis.

Term of the offering	This offering will terminate on January 20, 2024, unless we decide to terminate the offering (which we may do at any time in our discretion) prior to that date.

Common stock outstanding prior to this offering:	832,021 shares of common stock

Common stock outstanding after this offering:	shares, assuming no sale of pre-funded warrants, which, if sold, would reduce the number of shares of common stock that we are offering on a one-for-one basis, and no exercise of the common warrants issued in this offering.

Use of Proceeds:	We estimate that the net proceeds from this offering will be approximately $ million, based on an assumed combined public offering price of $ per share of common stock and accompanying common warrants which was the closing price of our common stock on the NYSE American on December , 2023, after deducting the placement agent fees and estimated offering expenses payable by us, and assuming we sell only shares of common stock and no pre-funded warrants and excluding the proceeds, if any, from the exercise of the common warrants in this offering. We currently intend to use the net proceeds from this offering to support continued research and development, nonclinical studies, and regulatory submissions for our OA-201 program and for general corporate purposes.

Risk Factors:	Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page 4 of this prospectus and the other information included or incorporated by reference in this prospectus.

NYSE American symbol:	Our common stock is listed on the NYSE American under the symbol “AMPE.” There is no established trading market for the common warrants or the pre-funded warrants, and we do not expect a trading market to develop. We do not intend to list the common warrants or the pre-funded warrants on any securities exchange or other trading market. Without a trading market, the liquidity of the common warrants and pre-funded warrants will be extremely limited.

		As of September 30, 2023
		Actual		As Adjusted
		(In thousands, except share and per share data)
Cash and cash equivalents	$	6,398	$
Stockholders’ equity:
Common stock, par value $0.0001 per share: 300,000,000 shares authorized; 804,604 shares issued and outstanding as of September 30, 2023, actual; shares issued and outstanding, as adjusted		—
Preferred stock, par value $0.0001 per share; 10,000,000 shares authorized, no shares outstanding, actual and no shares outstanding as adjusted		—		—
Additional paid-in capital		245,848
Accumulated deficit		(240,473)		( )
Total stockholders’ equity		5,375


Assumed public offering price per share		$
Net tangible book value per share of as September 30, 2023	$
Increase in net tangible book value per share attributable to this offering	$
As adjusted net tangible book value per share as of September 30, 2023, after giving effect to this offering		$
Dilution per share to new investors purchasing our common stock in this offering		$

	●	standard issuer representations and warranties on matters such as organization, qualification, authorization, no conflict, no governmental filings required, current in SEC filings, no litigation, labor or other compliance issues, environmental, intellectual property and title matters and compliance with various laws such as the Foreign Corrupt Practices Act; and

	●	covenants regarding matters such as registration of warrant shares, no integration with other offerings, filing of an 8-K to disclose entering into these securities purchase agreements, no shareholder rights plans, no material nonpublic information, use of proceeds, indemnification of purchasers, reservation and listing of common stock, and no subsequent equity sales for 60 days, subject to certain exceptions.

	Per Common Share and Common Warrant	Per Pre-funded Warrant and Common Warrant	Total
Offering price	$	$	$
Placement agent fees	$	$	$
Proceeds before expenses to us	$	$	$

	●	banks, insurance companies or other financial institutions;

	●	tax-exempt or government organizations;

	●	brokers or dealers in securities or currencies;

	●	traders in securities that elect to use a mark-to-market method of accounting for their securities holdings;

	●	persons that own, or are deemed to own, more than 5.0% of our capital stock;

	●	certain U.S. expatriates, citizens or former long-term residents of the United States;

	●	persons who hold our common stock as a position in a hedging transaction, “straddle,” “conversion transaction,” synthetic security, other integrated investment, or other risk reduction transaction;

	●	persons who do not hold our common stock as a capital asset within the meaning of Section 1221 of the Code (generally, for investment purposes);

	●	persons deemed to sell our common stock under the constructive sale provisions of the Code;

	●	pension plans;

	●	partnerships, or other entities or arrangements treated as partnerships for U.S. federal income tax purposes, or investors in any such entities;

	●	persons for whom our stock constitutes “qualified small business stock” within the meaning of Section 1202 of the Code;

	●	integral parts or controlled entities of foreign sovereigns;

	●	passive foreign investment companies and corporations that accumulate earnings to avoid U.S. federal income tax; or

	●	an individual who is a citizen or resident of the United States;

	●	a corporation created or organized under the laws of the United States, any state thereof, or the District of Columbia;

	●	an estate, the income of which is subject to U.S. federal income tax regardless of its source; or

	●	a trust that (1) is subject to the primary supervision of a U.S. court and the control of one or more U.S. persons (within the meaning of Section 7701(a)(30) of the Code), or (2) has a valid election in effect to be treated as a U.S. person for U.S. federal income tax purposes.

	●	the gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States and not eligible for relief under an applicable income tax treaty, in which case the Non-U.S. Holder will be required to pay tax on the net gain derived from the sale under regular graduated U.S. federal income tax rates, and for a Non-U.S. Holder that is a corporation, such Non-U.S. Holder may be subject to the branch profits tax at a 30% rate (or such lower rate as may be specified by an applicable income tax treaty) on such effectively connected gain, as adjusted for certain items;

	●	the Non-U.S. Holder is an individual who is present in the United States for a period or periods aggregating 183 days or more during the calendar year in which the sale or disposition occurs and certain other conditions are met, in which case the Non-U.S. Holder will be required to pay a flat 30% tax on the gain derived from the sale, which tax may be offset by U.S. source capital losses (even though the Non-U.S. Holder is not considered a resident of the United States) (subject to applicable income tax or other treaties); or

	●	we are a “U.S. real property holding corporation” for U.S. federal income tax purposes, or a USRPHC, at any time within the shorter of the five-year period preceding the disposition or the Non-U.S. Holder’s holding period for our common stock. We believe we are not currently and do not anticipate becoming a USRPHC. However, because the determination of whether we are a USRPHC depends on the fair market value of our United States real property interests relative to the fair market value of our other business assets, there can be no assurance that we will not become a USRPHC in the future. Even if we become a USRPHC, however, gain arising from the sale or other taxable disposition by a Non-U.S. Holder of our common stock will not be subject to United States federal income tax if (a) shares of our common stock are “regularly traded,” as defined by applicable Treasury Regulations, on an established securities market, such as the NYSE American, and (b) the Non-U.S. Holder owns or owned, actually and constructively, 5% or less of the shares of our common stock throughout the five-year period ending on the date of the sale or exchange. If the foregoing exception does not apply, such Non-U.S. Holder’s proceeds received on the disposition of shares will generally be subject to withholding at a rate of 15% and such Non-U.S. Holder will generally be taxed on any gain in the same manner as gain that is effectively connected with the conduct of a U.S. trade or business, except that the branch profits tax generally will not apply.

SEC registration fee		$
Legal fees and expenses		$
Accounting fees and expenses		$
FINRA filing fee		$
Transfer agent and registrar fees and expenses		$
Printer costs and expenses		$
		$


Exhibit Number		Description

3.1		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).

3.2		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).

3.3		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).

3.4		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).


Exhibit Number		Description
10.9 +		Amendment No. 2 to Employment Agreement by and between Ampio Pharmaceuticals, Inc. and Michael A. Martino, dated October 1, 2023 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on October 4, 2023).

10.10 +		Stock Option Cancellation and Grant Agreement for Executive between Ampio Pharmaceuticals, Inc. and Daniel G. Stokely, dated August 2019 (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed August 23, 2019).

10.11 +

SEC Form S-1 filed by Ampio Pharmaceuticals Inc.