Filed Pursuant to Rule 424(b)(5)
Registration No. 333-217094
PROSPECTUS SUPPLEMENT
(to Prospectus dated April 20, 2017)
30,000,000 Shares
Common Stock
Ampio Pharmaceuticals, Inc.
We are offering 30,000,000 shares of our common stock, par value
$0.0001 per share, in this offering at a negotiated price of $0.40 per share to certain investors that are not affiliated with
us pursuant to this prospectus supplement and the accompanying prospectus.
Our common stock is listed on the NYSE American market under
the symbol “AMPE.” The last sale price of our common stock on June 14, 2019, as reported by the New York Stock Exchange
American market, was $0.70 per share.
As of June 14, 2019, the aggregate market value of our outstanding
common stock held by non-affiliates was $76,323,550 based on 111,382,862 shares of outstanding common stock, of which 2,349,219
shares are held by affiliates, at a price of $0.70 per share, which was the last reported trading price of our common stock on
the New York Stock Exchange American market on June 14, 2019.
Investing in our common stock involves a high degree of risk.
See “
Risk Factors
” beginning on page S-8 of this prospectus supplement and page 5 of the accompanying base prospectus,
as well as the information under the caption “Risk Factors” in our Annual Report on Form 10-K for the year ended December
31, 2018 and in our Quarterly Report on Form 10-Q for the quarter ended March 31, 2019, and in the other documents incorporated
by reference into this prospectus supplement and the accompanying prospectus for a discussion of the factors you should carefully
consider before investing in our common stock.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or determined if this prospectus supplement or the accompanying
base prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
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Per Share
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Total
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Public offering price
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$
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0.40
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$
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12,000,000
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Placement agent fees(1)(2)
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$
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0.03
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$
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840,000
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Proceeds to us, before expenses
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$
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0.37
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$
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11,160,000
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(1)
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Does not include a non-accountable expense allowance equal to 1.0% of the gross proceeds of this offering payable to ThinkEquity, a division of Fordham Financial Management, Inc. We refer you to “Plan of Distribution” beginning on page S-14 for additional information regarding compensation payable to the placement agent.
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(2)
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Represents a fee of 7% of the purchase price for the shares sold in the offering and warrants to purchase up to 2,100,000 shares of common stock (7% of the shares sold in the offering) at an exercise price of $0.50.
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We have retained ThinkEquity, a division of Fordham Financial
Management, Inc. as our exclusive placement agent to use its reasonable efforts to solicit offers to purchase the securities in
this offering on. The placement agent has no obligation to buy any of the securities from us or to arrange for the purchase or
sale of any specific number or dollar amount of the securities. Because there is no minimum offering amount required as a condition
to closing in this offering, and such is being conducted on an “any or all” basis, the actual public offering amount,
placement agent fees, and proceeds to us, if any, are not presently determinable and may be substantially less than the total offering
amount set forth above.
Delivery of the shares will take place on or about June
19, 2019, subject to the satisfaction of certain conditions.
ThinkEquity
a
division of Fordham Financial Management, Inc.
Prospectus Supplement dated June 17, 2019.
TABLE OF CONTENTS
ABOUT THIS
PROSPECTUS SUPPLEMENT
This prospectus supplement and the accompanying prospectus relate
to the offering of shares of our common stock. Before buying any shares of our common stock offered hereby, we urge you to carefully
read this prospectus supplement and the accompanying prospectus, together with the information incorporated herein and therein
by reference as described under the headings “Where You Can Find More Information” and “Incorporation of Certain
Information by Reference.” These documents contain important information that you should consider when making your investment
decision.
On March 31, 2017, we filed with the Securities and Exchange
Commission (the SEC) a registration statement on Form S-3 (File No. 333-217094) utilizing a shelf registration process relating
to the securities described in this prospectus supplement, which registration statement became effective on April 20, 2017. Under
this shelf registration process, we may, from time to time, sell common stock and other securities, including this offering.
This document is in two parts. The first part is this prospectus
supplement, which describes the specific terms of this offering of common stock and also adds to and updates information contained
in the accompanying prospectus and the documents incorporated by reference into the prospectus and this prospectus supplement.
The second part, the accompanying prospectus dated April 20, 2017, including the documents incorporated by reference therein, gives
more general information, some of which does not apply to this offering. Generally, when we refer to this prospectus, we are referring
to both parts of this document combined.
If the description of the offering varies between this prospectus
supplement and the accompanying prospectus, you should rely on the information contained in this prospectus supplement. However,
if any statement in one of these documents is inconsistent with a statement in another document having a later date — for
example, a document incorporated by reference — the statement in the document having the later date modifies or supersedes
the earlier statement. In particular, with respect to any information contained in this prospectus supplement, on the one hand,
and information in the accompanying prospectus or documents incorporated by reference, on the other hand, the information in this
prospectus supplement shall control.
We further note that the representations, warranties and covenants
made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in the prospectus supplement
or the accompanying prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for
the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty
or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
The industry and market data and other statistical information
contained herein or in the documents we incorporate by reference are based on management’s own estimates, independent publications,
government publications, reports by market research firms or other published independent sources and, in each case, are believed
by management to be reasonable estimates. Although we believe these sources are reliable, we have not independently verified the
information.
All references in this prospectus supplement and the accompanying
base prospectus to “Ampio,” “Ampio Pharmaceuticals Inc.,” the “Company,” “we,”
“us,” “our” or similar references refer to Ampio Pharmaceuticals, Inc. and its subsidiaries on a consolidated
basis, except where the context otherwise requires or as otherwise indicated.
AMPIO (and design), our logo design and AMPION are our registered
trademarks. This prospectus also contains trademarks, registered marks and trade names of other companies. Any other trademarks,
registered marks and trade names appearing in this prospectus are the property of their respective holders.
FORWARD-LOOKING
STATEMENTS
This prospectus supplement, the accompanying base prospectus
and the documents incorporated by reference in these documents contain forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, or the Exchange Act. All
statements other than statements of historical facts contained in this prospectus supplement, including statements regarding our
anticipated future clinical and regulatory events, future financial position, business strategy and plans and objectives of management
for future operations, are forward-looking statements. Forward looking statements are generally written in the future tense and/or
are preceded by words such as “may,” “will,” “should,” “forecast,” “could,”
“expect,” “suggest,” “believe,” “estimate,” “continue,” “anticipate,”
“intend,” “plan” or similar words, or the negatives of such terms or other variations on such terms or
comparable terminology. Such forward-looking statements include, without limitation, statements regarding the anticipated start
dates, durations and completion dates, as well as the potential future results, of our future clinical trials, the anticipated
designs of our future clinical trials, anticipated future regulatory submissions and events, regulatory responses or other actions
in relation to our submissions, applications and proposals, the potential future commercialization of our product candidate, Ampion,
our anticipated future cash position and future events under our current and potential future collaborations. These forward-looking
statements are subject to a number of risks, uncertainties and assumptions, including without limitation the risks described in
the “Risk Factors” section in this prospectus supplement. These risks are not exhaustive. Other sections of this prospectus
supplement include additional factors that could adversely impact our business and financial performance. Moreover, we operate
in a very competitive and rapidly changing environment. New risk factors emerge from time to time and it is not possible for our
management to predict all risk factors, nor can we assess the impact of all factors on our business or the extent to which any
factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements.
You should not rely upon forward-looking statements as predictions of future events. We cannot assure you that the events and circumstances
reflected in the forward-looking statements will be achieved or occur and actual results could differ materially from those projected
in the forward-looking statements. We assume no obligation to update or supplement forward-looking statements.
We obtained statistical data, market and product data, and forecasts
used throughout this prospectus supplement from market research, publicly available information and industry publications. While
we believe that the statistical data, industry data and forecasts and market research are reliable, we have not independently verified
the data, and we do not make any representation as to the accuracy of the information.
All written and verbal forward-looking statements attributable
to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred
to in this section. We caution investors not to rely too heavily on the forward-looking statements we make or that are made on
our behalf. We undertake no obligation, and specifically decline any obligation, to update or revise publicly any forward-looking
statements, whether as a result of new information, future events or otherwise.
PROSPECTUS
SUPPLEMENT SUMMARY
The following summary is qualified in its entirety by, and
should be read together with, the more detailed information and financial statements and related notes thereto appearing elsewhere
or incorporated by reference in this prospectus supplement and the accompanying base prospectus. Before you decide to invest in
our common stock, you should read the entire prospectus supplement and the accompanying base prospectus carefully, including the
risk factors and the financial statements and related notes incorporated by reference in this prospectus supplement and the accompanying
base prospectus.
About Ampio Pharmaceuticals, Inc.
Overview
Our focus is on developing Ampion, which is a compound that
decreases inflammation by inhibiting specific pro-inflammatory compounds.
Ampion has advanced through late-stage clinical trials in the
United States. The U.S. Food and Drug Administration, or FDA, provided guidance that we should complete a trial of Kellgren Lawrence
Grade 4, or KL 4, osteoarthritis of the knee patients with concurrent controls that would be carried out under a Special Protocol
Assessment, or SPA, or otherwise with FDA feedback. A SPA is a process in which sponsors may ask to meet with FDA to reach agreement
on the design and size of certain clinical trials to determine if they adequately address scientific and regulatory requirements
for a study that could support marketing approval. On June 13, 2019, the FDA granted the Company a SPA for its upcoming trial (AP-013)
of KL 4 osteoarthritis of the knee patients with concurrent controls titled “
A Randomized, Controlled, Double-Blind Study
to Evaluate the Efficacy and Safety of an Intra-Articular Injection of Ampion in Adults with Pain Due to Severe Osteoarthritis
of the Knee
.” The SPA indicates concurrence by FDA with the adequacy and acceptability of specific critical elements
of overall protocol design and planned analysis for the AP-013 trial to support a regulatory submission to approve commercialization
of Ampion. The elements of the study agreed upon in the SPA are critical to ensuring that the trial conducted under the protocol
can be considered an adequate and well-controlled study that can support marketing licensure of Ampion. However, the SPA does not
indicate FDA concurrence on every protocol detail or that the AP-013 trial results will be adequate to support approval. Additionally,
the FDA may still require us to conduct additional clinical trials in the future to support a Biologic Licensing Application, or
BLA, for Ampion and the FDA’s final determinations for a marketing application approval of Ampion, following our planned
future submission, will be made only after a complete review of the marketing application and will be based on the entire data
in the application.
Ampion for Osteoarthritis and Other Inflammatory Conditions
Ampion is the < 5 kDa ultrafiltrate of 5% Human Serum Albumin,
or HSA, which is an FDA approved biologic product. Ampion is a non-steroidal, low molecular weight, anti-inflammatory biologic
that has the potential to be used in a wide variety of acute and chronic inflammatory conditions, as well as immune-mediated diseases.
HSA and its known components have demonstrated anti-inflammatory activity, which supports the mechanism of action.
We are currently developing Ampion as an intra-articular injection
to treat the signs and symptoms of severe osteoarthritis of the knee, or OAK, which is a growing epidemic in the United States.
OAK is a progressive disease characterized by gradual degradation and loss of cartilage due to inflammation of the soft tissue
and bony structures of the knee joint. Progression of the most severe form of OAK leaves patients with little to no treatment options
other than a total knee arthroplasty. The FDA has stated that severe OAK is an ‘unmet medical need’ with no licensed
therapies for this indication. While we believe that Ampion could treat this ‘unmet medical need’, our ability
to market this product is subject to FDA approval.
Market Opportunity
Osteoarthritis, or OA, is the most common form of arthritis,
affecting over 30 million people in the United States. It is a progressive disorder of the joints involving degradation of the
intra-articular cartilage, joint lining, ligaments and bone. Certain risk factors in conjunction with natural wear and tear lead
to the breakdown of cartilage. OA is caused by inflammation of the soft tissue and bony structures of the joint, which worsens
over time and leads to progressive thinning of articular cartilage. Other progressive effects include narrowing of the joint space,
synovial membrane thickening, osteophyte formation and increased density of the subchondral bone. The global market size for treatments
that currently address moderate to moderately severe OA was valued at approximately $3.0 billion in 2016 and is expected to grow
with a compound annual growth rate of 9.04% through 2025. The global demand for OAK treatment is expected to be fueled by
aging demographics and increased awareness of treatment options. Despite the size and growth of the OAK market, only a few treatment
options currently exist, especially in the severely diseased patient population.
Ampion Development
Since our inception, we have conducted multiple clinical trials
and have advanced through late-stage clinical trials in the United States, initially under the guidance of the FDA’s Office
of Blood Research and Review, or OBRR, and most recently under the guidance of the FDA’s Office of Tissues and Advanced Therapies,
or OTAT.
Study AP-003-A was a U.S. multicenter, randomized, double-blind
trial of 329 patients who were randomized 1:1 to receive Ampion or saline control via intra-articular injection. The study showed
a statistically significant reduction in pain compared to the control, with an average of greater than 40% reduction in pain from
baseline at 12 weeks. Patients who received Ampion also showed a significant improvement in function and quality of life (quality
of life was assessed using the Patient Global Assessment, or PGA) compared to patients who received the saline control at 12 weeks.
Furthermore, the trial included severely diseased patients (defined as KL 4). From this patient population, those patients who
received Ampion had a significantly greater reduction in pain than those who received the saline control. Ampion was well tolerated
with minimal adverse events reported across the Ampion and saline groups in the study. There were no drug-related serious adverse
events.
The trial design of AP-003-C was initiated while we were under
the guidance of OBRR and modified when guidance was transferred to OTAT in 2017. The study evaluated the responder rate of Ampion-treated
patients as defined by the Osteoarthritis Research Society International (OARSI) Standing Committee for Clinical Trials Response
Criteria Initiative (OMERACT), which included pain, function and PGA in support of a label for the treatment of the signs and symptoms
of severe OAK at 12 weeks.
Both OBRR and OTAT confirmed that our successful pivotal phase
III clinical trial, AP-003-A, was adequate and well-controlled and provided evidence of the effectiveness of Ampion and can contribute
to the substantial evidence of effectiveness necessary for the approval of a BLA. However, OTAT does not consider the AP-003-C
trial to be an adequate and well-controlled pivotal trial and provided guidance that we should complete an additional trial (AP-013)
of KL 4 osteoarthritis patients with concurrent controls that would be carried out under a SPA to obtain FDA concurrence on the
trial design. On June 13, 2019, we received a SPA for the AP-013 study titled “
A Randomized, Controlled, Double-Blind
Study to Evaluate the Efficacy and Safety of an Intra-Articular Injection of Ampion in Adults with Pain Due to Severe Osteoarthritis
of the Knee
.” The SPA indicates concurrence by FDA with the adequacy and acceptability of specific critical elements
of overall protocol design and planned analysis for the AP-013 trial to support a regulatory submission. The elements of the study
agreed upon in the SPA are critical to ensuring that the trial conducted under the protocol can be considered an adequate and well-controlled
study that can support marketing licensure of Ampion. The existence of the SPA agreement does not indicate FDA concurrence on every
protocol detail or guarantee that the trial results will be adequate to support marketing approval of Ampion. Those issues are
addressed during the review of a submitted application and are determined based on the adequacy of the overall submission. We plan
to initiate treatment in our AP-013 clinical trial following the successful close of the sale of common stock described in this
Prospectus Supplement. While a SPA has been awarded, the FDA may still rescind its agreement if it becomes aware of a substantial
scientific issue and/or the FDA could change its position regarding critical design elements previously agreed to. Even if the
proposed AP-013 trial is completed, the FDA may require additional clinical trials in the future. We cannot ensure that the data
derived from the proposed AP-013 trial or any subsequent trial or trials will be sufficient to support marketing approval for Ampion. The
FDA’s final determinations for a marketing application approval of Ampion will be made only after a complete review of the
marketing application and will be based on the entire data in the application.
Ampion Manufacturing Facility
In December 2013, we entered into a ten-year lease of a
multi-purpose facility containing approximately 19,000 square feet. This facility includes a clean room to manufacture Ampion,
research laboratories and our corporate offices. Ampion manufactured at our facilities is used in our clinical trials.
We moved into this manufacturing facility in the summer of 2014
and it was placed into service during the first quarter of 2016. Since then, we have implemented a quality system, validated the
facility for human-use products and produced Ampion.
Recent Developments
Regulatory Developments
As described above, on June 13, 2019, we received a Special
Protocol Assessment, or SPA, from the FDA for our upcoming AP-013 clinical trial of KL 4 osteoarthritis patients with concurrent
controls. See our Current Report on Form
8-K filed on June 14, 2019
, which is incorporated by reference herein.
Separation Agreement with Former Chief Financial Officer
On June 13, 2019, we entered into a Separation
Agreement with Thomas E. Chilcott, III whereby Mr. Chilcott resigned from his position as the Company’s Chief Financial
Officer, Treasurer and Secretary effective June 12, 2019. See our Current Report on
Form 8-K filed on June 13, 2019
,
which is incorporated by reference herein.
SEC Investigation
In April 2019, the Company received a subpoena from the SEC
requesting documents in an investigation relating to the trading of its securities around the time of disclosures by the Company
on April 20, 2015 and August 7, 2018. The Company is cooperating with the inquiry. The Company is, at this time, unable to predict
what action, if any, might be taken in the future by the SEC as a result of the matters that are the subject of the subpoena.
Exercise of Warrants
Warrants
representing 325,000 shares of the Company’s common
stock were exercised on June 14, 2019, however, the shares underlying the warrants have not yet been issued. The Company
anticipates that the 325,000 shares will be issued on June 17, 2019, after which 111,707,862 shares of common stock will be outstanding.
Corporate Information
We are a Delaware corporation. Our principal offices are located
at 373 Inverness Parkway, Suite 200, Englewood, Colorado 80112, and our telephone number is (720) 437-6500. Our website address
is www.ampiopharma.com. Our website and the information contained on, or that can be accessed through, our website shall not be
deemed to be incorporated by reference in, and are not considered part of, this prospectus and our reference to the URL for our
website is intended to be an inactive textual reference only. You should not rely on any such information in making your decision
whether to purchase our common stock.
THE OFFERING
The following summary contains basic information about this
offering. The summary is not intended to be complete. You should read the full text and more specific details contained elsewhere
in this prospectus supplement and the accompanying base prospectus.
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Common stock offered by us
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30,000,000 shares
of our common stock.
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Common stock to be outstanding after this offering
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141,382,862 shares.
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Use of proceeds
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We estimate that the net proceeds from this offering, after payment of estimated offering expenses payable
by us and placement agent fees, will be approximately $10.8 million.
We intend to use the net proceeds from this offering for working capital, including the conduct of a clinical trial, and other
general corporate purposes. See the section titled “Use of Proceeds.”
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Risk Factors
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Investing in our securities involves significant risks. You should read the “Risk Factors” section of this prospectus supplement and in the documents incorporated by reference in this prospectus supplement for a discussion of factors to consider before deciding to purchase shares of our common stock.
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The NYSE American symbol
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AMPE
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The number of shares of common stock that will be outstanding
immediately after this offering as shown above is based on 111,382,862 shares of common stock outstanding as of June 14, 2019,
which excludes:
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·
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22,233,191 shares of our common stock issuable upon
the exercise of outstanding warrants, of which 325,000 were exercised on June 14, 2019, but were not yet issued;
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·
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5,496,665
shares of our common stock issuable upon the exercise of outstanding options under the 2010 Plan as of June 14, 2019, with a weighted
average exercise price of $1.97 per share; and
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·
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4,159,283 shares of our common stock reserved for
issuance under the 2010 Plan.
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Unless otherwise indicated, all information in this
prospectus supplement assumes no conversion of preferred stock, exercise of the outstanding options or warrants or settlement
of outstanding restricted stock units, described above. Further, this prospectus supplement reflects and assumes no exercise
of the representative of the underwriters’ over-allotment option and no exercise of the Placement Agent’s
Warrants unless otherwise indicated.
RISK FACTORS
An investment in our common stock involves a high degree
of risk. You should carefully consider the risks described under “Risk Factors” in our most recent Annual Report on
Form 10-K, and in our most recent Quarterly Report on Form 10-Q, and all of the other information contained in this prospectus
supplement and the accompanying base prospectus, and incorporated by reference into this prospectus supplement and the accompanying
base prospectus, including our financial statements and related notes, before investing in our common stock. If any of the possible
adverse events described below or in those sections actually occur, our business, business prospects, cash flow, results of operations
or financial condition could be harmed, the trading price of our common stock could decline, and you might lose all or part of
your investment in our common stock. Additional risks and uncertainties not presently known to us or that we currently deem immaterial
may also impair our operations and results.
Risks Related to This Offering and Our Common Stock
An active trading market for our common stock may
not develop or be sustained and investors may not be able to resell their shares at or above the price at which they purchased
them.
An active trading market for our shares may never develop or
be sustained. In the absence of an active trading market for our common stock, investors may not be able to sell their common stock
at or above the price they paid or at the time that they would like to sell. In addition, an inactive market may impair our ability
to raise capital by selling shares and may impair our ability to acquire other companies or technologies by using our shares as
consideration, which, in turn, could harm our business.
The trading price of the shares of our common stock
has been and is likely to continue to be highly volatile, and purchasers of our common stock could incur substantial losses.
Our stock price has been and will likely continue to be volatile
for the foreseeable future. The stock market in general and the market for biotechnology companies in particular have experienced
extreme volatility that has often been unrelated to the operating performance of particular companies. As a result of this volatility,
investors may not be able to sell their common stock at or above the price they paid.
In addition, in the past, stockholders have initiated class
action lawsuits against biotechnology and pharmaceutical companies including us following periods of volatility in the market prices
of these companies’ and our stock. Such litigation, including the litigation that is currently instituted against us and
certain of our officers and directors and any litigation that may be instituted against us, our officers and/or our directors in
the future, could cause us to incur substantial costs and divert management’s attention and resources, which could have a
material adverse effect on our business, financial condition and results of operations.
Our quarterly operating results may fluctuate significantly.
We expect that our operating results may be subject to substantial
quarterly fluctuations. If our quarterly operating results fall below the expectations of investors or securities analysts, the
price of our common stock could decline substantially. We believe that quarterly comparisons of our financial results are not necessarily
meaningful and should not be relied upon as an indication of our future performance.
You will experience immediate and substantial dilution.
Because the price per share of our common stock being offered
is substantially higher than the net tangible book value per share of our common stock, you will suffer substantial dilution in
the net tangible book value of the common stock you purchase in this offering. If you purchase shares of common stock in this offering,
you will suffer immediate and substantial dilution of $0.33 per share in the net tangible book value of the common stock. In addition,
we are not restricted from issuing additional securities in the future, including shares of common stock, securities that are convertible
into or exchangeable for, or that represent the right to receive, common stock or substantially similar securities. The issuance
of these securities may cause further dilution to our stockholders. The exercise of outstanding stock options and the vesting of
outstanding restricted stock units may also result in further dilution of your investment. See the section entitled “Dilution”
below for a more detailed discussion of the dilution you would incur if you purchase securities in this offering.
We may allocate our cash and cash equivalents, including
the proceeds from this offering, in ways that you and other stockholders may not approve.
Our management has broad discretion in the application of our
cash, cash equivalents and marketable securities, including the proceeds from this offering. Because of the number and variability
of factors that will determine our use of our cash and cash equivalents, their ultimate use may vary substantially from their currently
intended use. Our management might not apply our cash and cash equivalents in ways that ultimately increase the value of your investment.
We expect to use our cash and cash equivalents to fund Ampion clinical trials, working capital and other general corporate purposes.
The failure by our management to apply these funds effectively could harm our business. Pending their use, we may invest our cash
and cash equivalents in short-term, investment-grade, interest-bearing securities. These investments may not yield a favorable
return to our stockholders. If we do not invest or apply our cash and cash equivalents, including the proceeds from this offering,
in ways that enhance stockholder value, we may fail to achieve expected financial results, which could cause our stock price to
decline.
A substantial number of shares of our common stock
could be sold into the public market in the near future, which could depress our stock price.
Sales of substantial amounts of our common stock in the public
market could reduce the prevailing market prices for our common stock. Substantially all of our outstanding common stock are eligible
for sale as are common stock issuable under vested and exercisable stock options. If our existing stockholders sell a large number
of shares of our common stock, or the public market perceives that existing stockholders might sell shares of common stock, the
market price of our common stock could decline significantly. These sales might also make it more difficult for us to sell equity
securities at a time and price that we deem appropriate.
If securities or industry analysts do not publish
research or reports or publish unfavorable research or reports about our business, our stock price and trading volume could decline.
The trading market for our common stock will depend in part
on the research and reports that securities or industry analysts publish about us, our business, our market or our competitors.
We currently have limited research coverage by securities and industry analysts. If other securities or industry analysts do not
commence coverage of our company, the trading price for our stock could be negatively impacted. If one or more of the analysts
who covers us downgrades our stock, our stock price would likely decline. If one or more of these analysts ceases to cover us or
fails to regularly publish reports on us, interest in our stock could decrease, which could cause our stock price or trading volume
to decline.
We are defendants in securities and shareholder litigations
and
have recently received a subpoena from the SEC and
could
be subject to additional litigations or investigations.
The company and certain of its officers and directors are currently
defendants in pending shareholder derivative actions and/or putative class actions for violations of the federal securities laws.
Specifically, as disclosed in our Form 10-K for the period ended
December 31, 2018, on August 25, 2018, a stockholder of the Company brought a putative class action lawsuit in the United States
District Court for the Central District of California, Shi v. Ampio Pharmaceuticals, Inc., et al., Case No. 2:18-cv-07476-SJO-RAO,
which alleges that the Company and certain of its current and former officers violated federal securities laws by misrepresenting
and/or omitting information regarding the AP-003 Phase III clinical trials of Ampion and seeks unspecified damages, interest, and
attorneys’ fees and costs. Additionally, on September 10, 2018, October 5, 2018 and November 14, 2018, three separate purported
stockholders of the Company brought derivative actions against the Company in the United States District Court for the Central
District of California, Cetrone v. Macaluso, et al., Case No. 2:18-cv-05970-SJO-RAO, the United States District Court for the District
of Colorado, Theise v. Macaluso, et al., Case No. 1:18-cv-02558-RBJ and the United States District Court for the District of Colorado,
Lewis v. Macaluso, et al., Case No. 1:18-cv-02932-SKC, respectively, each alleging primarily that the directors and certain officers
of Ampio breached their fiduciary duties in connection with the alleged misstatements and/or omissions regarding the AP-003 Phase
III clinical trial of Ampion. On December 19, 2018, the court consolidated the Theise and Lewis derivative actions, and the consolidated
action is captioned In re Ampio Pharmaceuticals, Inc. Stockholder Derivative Litigation, Case No. 1:18-cv-02558-RBJ.
In addition, in April 2019 we and certain of our directors and
executive officers received subpoenas from the SEC requesting documents and information in an investigation relating to the trading
of our securities around two significant corporate announcements that resulted in material declines in the market price of our
stock. The Company and the directors and executive officers are cooperating with the inquiry. The Company is, at this time, unable
to predict what action, if any, might be taken in the future by the SEC as a result of the matters that are the subject of the
subpoena.
While we believe that all claims asserted are without merit
and intend to defend these lawsuits vigorously
and that the matters under investigation
by the SEC are unlikely to result in liability for the Company
, it is possible that additional actions will be filed
in the future or additional investigations could be ongoing, or may be initiated. Additionally, while we believe our Directors
and Officers Liability Insurance (D&O Insurance) will cover the current actions and investigations, the current and any future
actions and investigations could result in substantial cost to the Company through our payment of the retention under our D&O
Insurance, which is currently $1.0 million and will increase to $1.5 million upon renewal, and/or if our insurer denies coverage.
The current actions could also result in a diversion of management’s attention and resources. The incurrence of substantial
cost or diversion of management’s attention could each have a material adverse effect on our business, financial condition
and results of operations.
Supplemental Risks Related to Our Business
We depend on skilled and experienced personnel and management
leadership to operate our business effectively.
Our success largely depends on the skills, experience and efforts
of our officers and other key employees. The efforts of our officers and other key employees are critical to us as we continue
to focus on the development of Ampion. The loss of any of our senior management team members could disrupt our operations and harm
our business. In June 2019, Thomas E. Chilcott, III resigned as our Chief Financial Officer and we do not yet have a replacement
for him. The market for skilled accounting and finance personnel is competitive and we are unable to determine how long it will
take us to find the permanent replacement for Mr. Chilcott. We cannot assure you that there will be smooth transition to our new
Chief Financial Officer. A prolonged search to fill this position could have a material adverse effect on our business.
We have
identified a material weakness in our internal control over disclosure reporting, which could result in the failure to identify
information for appropriate disclosure.
In the first half
of 2019, we identified a material weakness relating to identification of information for appropriate disclosure. Our management
determined that our control over the identification of information for appropriate disclosure is not effective. Specifically, there
is a deficiency in the procedures in place to ensure disclosure of certain information to our Disclosure Committee. Disclosure
controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be
disclosed by us in our reports that we file or submit under the Exchange Act is accumulated and communicated to management, including
our principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely
decisions regarding our required disclosures. The Disclosure Committee intends to review this matter and implement appropriate
controls. However, there is a risk that the identified material weakness could prohibit us from timely and accurately filing disclosures
as required under the Exchange Act. Additionally, the fact that we have a material weakness could adversely affect our
ability to raise funds in the public markets or otherwise.
USE OF PROCEEDS
We estimate that the proceeds from this offering, after deducting
estimated offering expenses payable by us and placement agent fees, will be approximately $10.8 million. We intend to use the net
proceeds from this offering for working capital, including the conduct of a clinical trial, and other general corporate purposes.
Accordingly, our management will have broad discretion in the application of these proceeds. Pending use of the proceeds as described
above, we intend to invest the proceeds in a variety of capital preservation investments, including short term, interest bearing,
investment grade instruments and U.S. government securities.
DIVIDEND
POLICY
We have never declared or paid cash dividends on our common
stock. We currently intend to retain all available funds and any future earnings for use in the operation of our business and do
not anticipate paying any cash dividends in the foreseeable future. Any future determination to declare cash dividends will be
made at the discretion of our board of directors and will depend on our financial condition, results of operations, capital requirements,
general business conditions and other factors that our board of directors may deem relevant.
DILUTION
If you invest in this offering, your ownership interest will
be immediately diluted to the extent of the difference between the public offering price per share and the as adjusted net tangible
book value per share after giving effect to this offering. We calculate net tangible book value per share by dividing the net tangible
book value, which is the total tangible assets less total liabilities, by the number of outstanding shares of our common stock.
Dilution represents the difference between the portion of the amount per share paid by purchasers of shares in this offering and
the as adjusted net tangible book value per share of our common stock immediately after giving effect to this offering. Our net
tangible book value as of March 31, 2019 was approximately $(468,000), or $0.00 per share.
After giving effect to the sale of 30,000,000 shares of common
stock in this offering at the public offering price of $0.40 per share of common stock, and after deducting the placement
agent fees and estimated offering expenses payable by us, our as adjusted net tangible book value would have been approximately
$10.3 million, or approximately $0.07 per share of common stock, as of March 31, 2019. This represents an immediate increase
in net tangible book value of approximately $0.07 per share to existing stockholders and an immediate dilution of approximately
$0.33 per share to new investors.
The following table illustrates this per share dilution based
on shares outstanding as of March 31, 2019:
|
Public offering price per share
|
|
$
|
0.40
|
|
|
Historical net tangible book value per share as of March 31, 2019
|
|
$
|
0.00
|
|
|
Increase in net tangible book value per share after this offering
|
|
$
|
0.07
|
|
|
As-Adjusted Net tangible book value per share as of March 31, 2019 after this offering
|
|
$
|
0.07
|
|
|
Dilution per share to investors participating in this offering
|
|
$
|
0.33
|
|
The above discussion and table excludes:
|
|
·
|
254,984 shares of our common stock issued under our
Equity Distribution Agreement, dated April 12, 2019, with Canaccord Genuity LLC (the “Equity Distribution Agreement”)
after March 31, 2019, which we terminated prior to commencing this offering;
|
|
|
·
|
22,233,191 shares of our common stock issuable upon
the exercise of outstanding warrants, of which 325,000 were exercised on June 14, 2019, but were not yet issued
|
|
|
·
|
5,496,665 shares of our common stock issuable upon
the exercise of outstanding options under the 2010 Plan, with a weighted average exercise price of $1.97 per share; and
|
|
|
·
|
4,159,283 shares of our common stock reserved for
issuance under the 2010 Plan.
|
To the extent that any of these options or warrants are exercised,
new options are issued under our 2010 Plan and subsequently exercised or we issue additional shares of common stock in the future,
there will be further dilution to investors participating in this offering.
PLAN OF DISTRIBUTION
We have entered into a securities purchase
agreement with investors pursuant to which we will sell to such purchasers 25,320,000 shares of our common stock. We negotiated
the prices of the securities offered in this offering with the investors. In addition, we may issue to investors identified by
the placement agent referred to below or a sub-agent or selected dealer retained by them, up to an additional 4,680,000 shares
at the same purchase price being paid by such purchasers party to the securities purchase agreement, so long as such investors
have agreed to waive compliance with the “T+2” settlement cycle and otherwise provided such information and payment
as required to consummate their purchase concurrently with the closing pursuant to the securities purchase agreement. The factors
considered in determining the price included the recent market price of our common stock, the general condition of the securities
market at the time of this offering, the history of, and the prospects for, the industry in which we compete, our past and present
operations, and our prospects for future revenues.
The securities purchase agreement contains
customary representations, warranties and covenants for transactions of this type. We have also agreed to indemnify the investors
against certain losses resulting from our breach of any of our representations, warranties, or covenants under agreements with
the purchasers as well as under certain other circumstances described in the securities purchase agreement.
We will deliver the shares of common
stock being issued to the investors electronically upon receipt of investor funds for the purchase of the shares of our common
stock offered pursuant to this prospectus supplement. We currently anticipate that the closing of the sale of the shares of common
stock offered pursuant to this prospectus supplement will take place, and we expect to deliver the shares of our common stock that
are purchased, on or about June19, 2019. The obligations of the investors to close this offering are subject to certain conditions,
including the absence of any material adverse change in our business and the receipt of customary letters and certificates.
We estimate the total offering expenses
of this offering that will be payable by us will be approximately $1.2 million, which include legal and printing costs and various
other fees. At the closing, the Depository Trust Company (“DTC”) will credit the common stock directly to the Placement
Agent for the accounts of the investors or, at the option of such investors, directly to an account at DTC specified by them.
We have agreed, subject to certain
exceptions, that we (or our subsidiaries) will not within 90 days following the closing of this offering, issue any equity securities
or securities convertible into equity securities.
We have engaged ThinkEquity, a Division
of Fordham Financial Management, Inc. to act as placement agent for the offering pursuant to a placement agency agreement. The
placement agent may engage sub-agents or selected dealers to assist with the offering. We have agreed to pay the placement agent
a fee of 7% of the aggregate purchase price for the securities sold in the offering. addition, we have also agreed to pay the following
expenses of the placement agent relating to the offering: (a) all fees, expenses and disbursements relating to background checks
of our officers and directors in an amount not to exceed $10,000 in the aggregate; (b) all filing fees and communication expenses
associated with the review of this offering by FINRA; (c) all fees, expenses and disbursements relating to the registration, qualification
or exemption of securities offered under the securities laws of foreign jurisdictions designated by the placement agent, including
the reasonable fees and expenses of the placement agent’s blue sky counsel; (d) $29,500 for the placement agent’s use
of Ipreo’s book-building, prospectus tracking and compliance software for this offering; (e) the costs associated with bound
volumes of the public offering materials as well as commemorative mementos and lucite tombstones, not to exceed $3,000, (f) the
fees and expenses of the placement agent’s legal counsel incurred in connection with this offering in an amount up to $75,000;
and (g) up to $20,000 of the placement agent’s actual accountable road show expenses for the offering. We also agreed to
issue to the placement agent or its designees warrants to purchase up to 2,100,000 shares of common stock (7% of the shares sold
in the offering) at an exercise price of $0.50. The warrants and the shares of common stock underlying the warrants have been deemed
compensation by FINRA and are, therefore, subject to a 180-day lock-up pursuant to Rule 5110(g)(1) of FINRA. The placement agent
(or permitted assignees under the Rule) will not sell, transfer, assign, pledge or hypothecate these warrants or the securities
underlying these warrants, nor will they engage in any hedging, short sale, derivative, put or call transaction that would result
in the effective economic disposition of these warrants or the underlying securities for a period of 180 days after the effective
date of the offering. The exercise price and number of shares of common stock issuable upon exercise of the warrants may be adjusted
in certain circumstances including in the event of a stock dividend, extraordinary cash dividend or our recapitalization, reorganization,
merger or consolidation. However, the warrant exercise price or underlying shares will not be adjusted for issuances of shares
of common stock at a price below the warrant exercise price. The warrants will expire five years from the effective date of the
offering.
We have agreed to indemnify the placement
agent, against certain liabilities, including civil liabilities under the Securities Act and liabilities arising from breaches
of representations and warranties contained in the placement agency agreement.
The placement agent may be deemed to
be an underwriter within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received by it and any profit
realized on the resale of the securities sold by it while acting as principal might be deemed to be underwriting discounts or commissions
under the Securities Act. As an underwriter, the placement agent would be required to comply with the requirements of the Securities
Act and the Exchange Act, including, without limitation, Rule 415(a)(4) under the Securities Act and Rule 10b-5 and Regulation
M under the Exchange Act. These rules and regulations may limit the timing of purchases and sales of shares of our securities by
the placement agent acting as principal. Under these rules and regulations, the placement agent:
|
|
●
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may not engage in any stabilization activity in connection
with our securities; and
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●
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may not bid for or purchase any of our securities or
attempt to induce any person to purchase any of our securities, other than as permitted under the Exchange Act, until it has completed
its participation in the distribution.
|
The foregoing descriptions of the securities
purchase agreement and placement agency agreement are only summaries, do not purport to be complete and are qualified in their
entirety by reference to the securities purchase agreement and placement agency agreement, a copy of which is attached as an exhibit
to our Current Report on Form 8-K filed with the SEC in connection with this offering and are incorporated herein by
reference.
DESCRIPTION
OF CAPITAL STOCK
General
Our authorized capital stock consists of 200,000,000 shares
of common stock, par value $0.0001 per share, and 10,000,000 shares of undesignated preferred stock, $0.0001 par value, of which
no preferred shares are issued or outstanding.
The summary description of our capital stock contained in this
prospectus supplement and the accompanying base prospectus is based on the provisions of our certificate of incorporation and bylaws
and the applicable provisions of the Delaware General Corporation Law. This information is qualified entirely by reference to the
applicable provisions of our certificate of incorporation, bylaws and the Delaware General Corporation Law. For information on
how to obtain copies of our certificate of incorporation and bylaws, please see “Where You Can Find Additional Information”
and “Incorporation of Certain Information by Reference.”
LEGAL MATTERS
The validity of the securities offered by this prospectus supplement
will be passed on for us by Squire Patton Boggs (US) LLP. Certain legal matters in connection with this offering will be passed
on for the placement agent by Loeb & Loeb LLP, New York, NY.
EXPERTS
The audited financial statements incorporated by reference in
this prospectus supplement and elsewhere in the registration statement have been so incorporated by reference in reliance upon
the report of Plante & Moran PLLC, independent registered public accountants, upon the authority of said firm as experts in
accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form
S-3 (File No. 333-217094), of which this prospectus supplement and the accompanying base prospectus are a part, under the Securities
Act, to register the shares of common stock offered by this prospectus supplement. However, this prospectus supplement and the
accompanying base prospectus do not contain all of the information contained in the registration statement and the exhibits and
schedules to the registration statement. We encourage you to carefully read the registration statement and the exhibits and schedules
to the registration statement.
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. The SEC maintains a website at www.sec.gov that contains reports, proxy and information statements
and other information regarding issuers that file electronically with the SEC, including us.
Our common stock is listed on the NYSE American market under
the symbol “AMPE.” General information about our company, including our Annual Report on Form 10-K, Quarterly Reports
on Form 10-Q and Current Reports on Form 8-K, as well as any amendments and exhibits to those reports, are available free of charge
through our website at www.ampiopharma.com as soon as reasonably practicable after we file them with, or furnish them to, the SEC.
Information on, or that can be accessed through, our website is not incorporated into this prospectus supplement or other securities
filings and is not a part of these filings.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We “incorporate by reference” into this prospectus
supplement the information we file with the SEC, which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is an important part of this prospectus supplement and information
that we file subsequently with the SEC will automatically update this prospectus supplement. We incorporate by reference the documents
listed below and any filings we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934,
as amended, after initial filing of the registration statement that contains the prospectus and prior to the time that we sell
all the securities offered by this prospectus supplement (in each case, except for the information furnished under Item 2.02 or
Item 7.01 in any current report on Form 8-K and Form 8-K/A):
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·
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our Annual Report on Form 10-K for the year ended
December 31, 2018 filed with the SEC on
March 18, 2019
;
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·
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our Quarterly Report on Form 10-Q for the fiscal period
ended March 31, 2019 filed with the SEC on
May 10, 2019
;
|
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·
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our Proxy Statement on Schedule 14A filed with the
SEC on
October 31, 2018
(excluding those portions that are not incorporated by reference into our Annual Report on Form 10-K for
the year ended
December 31, 2017
);
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·
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the description of our common stock contained or incorporated
by reference in our Registration Statement on Form 8-A, filed on
May 17, 2011
, including any amendment or reports filed for the
purpose of updating this description.
|
You may request a copy of these filings (other than an exhibit
to a filing unless that exhibit is specifically incorporated by reference into that filing) at no cost, by writing to or telephoning
us at the following address:
Ampio Pharmaceuticals, Inc.
373 Inverness Parkway, Suite 200
Englewood, Colorado 80112
(720) 437-6500
Attn: Investor Relations
PROSPECTUS
$100,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
5,000,000 Shares of Common Stock Offered
by
the Selling Stockholder
Issuable Upon Exercise of Warrants
We may, from time to time, offer and sell up to $100,000,000
of any combination of our common stock, preferred stock, debt securities or warrants described in this prospectus, either individually
or in combination with other securities, at prices and on terms described in one or more supplements to this prospectus. We may
also offer common stock or preferred stock upon conversion of debt securities, common stock upon conversion of preferred stock,
or common stock, preferred stock or debt securities upon the exercise of warrants. We may also authorize one or more free writing
prospectuses to be provided to you in connection with these offerings.
In addition, the selling stockholder may from time to time,
offer and sell up to 5,000,000 shares our common stock issuable upon the exercise of warrants held by such selling stockholder.
We will not receive any of the proceeds from the sales of common stock from the selling stockholder, however, the selling stockholder
would pay us the exercise price of $0.40 per, for an aggregate amount of $2,000,000 if the warrants are exercised for cash, in
full, subject to any adjustments. See “Use of Proceeds.” The selling stockholder may sell the shares of common stock
described in this prospectus in a number of different ways and at varying prices. See “Plan of Distribution” below
for additional information on how the selling stockholder may conduct sales of our common stock. We have agreed to bear the expenses
of the registration of the common stock under the federal and state securities laws on behalf of the selling stockholder.
Each time we offer securities, we will provide the specific
terms of the securities offered in one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses
to be provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may
also add, update or change information contained in this prospectus. You should carefully read this prospectus, the applicable
prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference, before buying
any of the securities being offered.
The securities offered by this prospectus may be sold directly
by us to investors, through agents designated from time to time or to or through underwriters or dealers. We will set forth the
names of any underwriters or agents and any applicable fees, commissions, discounts and over-allotments in an accompanying prospectus
supplement. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution”
in this prospectus and in the applicable prospectus supplement. The price to the public of such securities and the net proceeds
we expect to receive from such sale will also be set forth in a prospectus supplement.
Our common stock is traded on the NYSE MKT LLC under the symbol
“AMPE.” On March 29, 2017, the last reported sale price of our common stock on the NYSE MKT LLC was $0.80. The applicable
prospectus supplement will contain information, where applicable, as to any other listing, if any, on the NYSE MKT LLC or any securities
market or other exchange of the securities covered by the applicable prospectus supplement.
This prospectus may not be used to offer or sell any securities
unless accompanied by a prospectus supplement.
Investing in our securities involves a high degree of risk.
You should review carefully the risks and uncertainties referenced under the heading “
risk
factors
” on page 5 of this prospectus as well as those contained in the applicable prospectus supplement
and any related free writing prospectus, and in the other documents that are incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is April
20, 2017.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3
that we filed with the Securities and Exchange Commission, or the SEC, utilizing a “shelf” registration process. Under
this shelf registration process, we may offer shares of our common stock preferred stock, debt securities, and/or warrants to purchase
our common stock, either individually or in units, in one or more offerings, up to a total dollar amount of $100,000,000. In addition,
the selling stockholder may sell up to an aggregate of 5,000,000 shares of our common stock issuable upon the exercise of warrants
held by such selling stockholder. This prospectus provides you with a general description of the securities we and the selling
stockholder may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement
that will contain more specific information about the specific terms of the offering. We may also authorize one or more free writing
prospectuses to be provided to you that may contain material information relating to these offerings. Each such prospectus supplement
(and any related free writing prospectus that we may authorize to be provided to you) may also add, update or change information
contained in this prospectus or in documents incorporated by reference into this prospectus. We urge you to carefully read this
prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated
herein by reference as described under the headings “Where You Can Find Additional Information” and “Incorporation
of Certain Information by Reference” before buying any of the securities being offered. This prospectus may not be used
to offer or sell securities unless it is accompanied by a prospectus supplement.
You should rely only on the information contained or incorporated
by reference in this prospectus, any applicable prospectus supplement and any related free writing prospectus. We have not authorized
anyone to provide you with different information in addition to or different from that contained in this prospectus, any applicable
prospectus supplement and any related free writing prospectus. No dealer, salesperson or other person is authorized to give any
information or to represent anything not contained in this prospectus, any applicable prospectus supplement or any related free
writing prospectus that we may authorize to be provided to you. You must not rely on any unauthorized information or representation.
This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where
it is lawful to do so. You should assume that the information in this prospectus, any applicable prospectus supplement or any related
free writing prospectus is accurate only as of the date on the front of the document and that any information incorporated by reference
is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus,
any applicable prospectus supplement or any related free writing prospectus, or any sale of a security.
This prospectus contains summaries of certain provisions contained
in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will
be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and
you may obtain copies of those documents as described below under the heading “Where You Can Find Additional Information.”
SUMMARY
This summary highlights selected information from this prospectus
or incorporated by reference in this prospectus, and does not contain all of the information that you need to consider in making
your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement and any related
free writing prospectus, including the risks of investing in our securities contained in the applicable prospectus supplement and
any related free writing prospectus, and in the other documents that are incorporated by reference into this prospectus. You should
also carefully read the information incorporated by reference into this prospectus, including our financial statements, and the
exhibits to the registration statement of which this prospectus is a part.
Unless otherwise indicated or unless the context otherwise
requires, references in this prospectus to the “Company,” “Ampio,” “we,” “us,”
or “our” are to Ampio Pharmaceuticals, Inc. and its subsidiaries.
Overview
We are a biopharmaceutical company focused primarily on the
development of therapies to treat prevalent inflammatory conditions for which there are limited treatment options.
Our product portfolio is primarily based on the work of Dr. David
Bar-Or, the Director of Trauma Research LLC for the Swedish Medical Center located in Englewood, CO, St. Anthony Hospital
located in Lakewood, CO and the medical center of Plano located in Plano, Texas. For over two decades, while directing these trauma
research laboratories, Dr. Bar-Or and his staff have built a robust portfolio of product candidates focusing on inflammatory
conditions. Our initial clinical programs were selected from Dr. Bar-Or’s research based on certain criteria, particularly
the ability to advance the candidates rapidly into late-stage clinical trials. The benchmarks used to build our pipeline were products
with: (i) potential indications to address large underserved markets; (ii) strong intellectual property protection and
the potential for market and data exclusivity; and (iii) a well-defined regulatory path to marketing approval.
We are primarily developing compounds that decrease inflammation
by (i) inhibiting specific pro-inflammatory compounds by affecting specific pathways at the protein expression and at the
transcription level; (ii) activating specific phosphatase or depleting available phosphate needed for the inflammation process;
and (iii) decreasing vascular permeability.
Our predecessor, DMI Life Sciences, Inc., or Life Sciences,
was incorporated in Delaware in December 2008. In March 2010, Life Sciences was merged with a subsidiary of Chay Enterprises, Inc.
As a result of this merger, Life Sciences stockholders became the controlling stockholders of Chay Enterprises. Following the merger,
we reincorporated in Delaware as Ampio Pharmaceuticals, Inc. in March 2010.
Corporate Information
Our principal executive offices are located at 373 Inverness
Parkway, Suite 200, Englewood, Colorado 80112, and our telephone number is (720) 437-6500. Additional information about us
is available on our website at
www.ampiopharma.com
. The information contained on or that may be obtained from our website
is not, and shall not be deemed to be, a part of this prospectus. You can review filings we make with the SEC at its website (
www.sec.gov)
,
including our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments
to those reports electronically filed or furnished pursuant to Section 15(d) of the Exchange Act.
The Securities We May Offer
We may offer shares of our common stock, various series of preferred
stock, debt securities and/or warrants to purchase our common stock, either individually or in units, with a total value of up
to $100,000,000 from time to time under this prospectus at prices and on terms to be determined at the time of any offering. In
addition, the selling stockholder may sell up to an aggregate of 5,000,000 shares of our common stock issuable upon the exercise
of warrants held by such selling stockholder. This prospectus provides you with a general description of the securities we and
the selling stockholder may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus
supplement that will describe the specific amounts, prices and other important terms of the securities, including, to the extent
applicable:
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designation or classification;
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•
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aggregate principal
amount or offering price;
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•
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maturity, if applicable;
|
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•
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original issue discount,
if any;
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•
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rates and times of payment
of interest or dividends, if any;
|
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•
|
redemption, conversion,
exchange or sinking fund terms, if any;
|
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•
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conversion or exchange
prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion or exchange prices
or rates and in the securities or other property receivable upon conversion or exchange;
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•
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restrictive covenants,
if any; and
|
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•
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voting or other rights,
if any.
|
The prospectus supplement and any related free writing prospectus
that we may authorize to be provided to you may also add, update or change information contained in this prospectus or in documents
we have incorporated by reference. However, no prospectus supplement or free writing prospectus will offer a security that is not
registered and described in this prospectus at the time of the effectiveness of the registration statement of which this prospectus
is a part.
This prospectus may not be used to offer or sell securities
unless it is accompanied by a prospectus supplement.
We and the selling stockholder may sell the securities directly
to investors or to or through agents, underwriters or dealers. We and the selling stockholder, and our agents or underwriters,
reserve the right to accept or reject all or part of any proposed purchase of securities. If we or the selling stockholder does
offer securities to or through agents or underwriters, we will include in the applicable prospectus supplement:
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•
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the names of those agents
or underwriters;
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•
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applicable fees, discounts
and commissions to be paid to them;
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•
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details regarding over-allotment
options, if any; and
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•
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the net proceeds to
us.
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Common Stock.
We may issue shares of our common stock
from time to time and the selling stockholder may offer up to 5,000,000 shares of common stock issuable upon exercise of warrants
held by such selling stockholder. Holders of shares of our common stock are entitled to one vote for each share held of record
on all matters to be voted on by stockholders and do not have cumulative voting rights. Subject to the preferences that may be
applicable to any then outstanding preferred stock, the holders of our outstanding shares of common stock are entitled to receive
dividends, if any, as may be declared from time to time by our board of directors out of legally available funds. In the event
of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in the net assets
legally available for distribution to stockholders after the payment of all of our debts and other liabilities, subject to the
satisfaction of any liquidation preference granted to the holders of any outstanding shares of preferred stock.
Preferred Stock.
We may issue shares of our preferred
stock from time to time, in one or more series. Under our certificate of incorporation, our board of directors has the authority,
without further action by the stockholders (unless such stockholder action is required by applicable law or the rules of any stock
exchange or market on which our securities are then traded), to designate up to 10,000,000 shares of preferred stock in one or
more series and to determine the designations, voting powers, preferences and rights of each series of the preferred stock, as
well as the qualifications, limitations or restrictions thereof, including dividend rights, conversion rights, preemptive rights,
terms of redemption or repurchase, liquidation preferences, sinking fund terms and the number of shares constituting any series
or the designation of any series, any or all of which may be greater than the rights of the common stock. Any convertible preferred
stock we may issue will be convertible into our common stock or exchangeable for our other securities. Conversion may be mandatory
or at the holder’s option and would be at prescribed conversion rates.
If we sell any series of preferred stock under this prospectus,
we will fix the designations, voting powers, preferences and rights of such series of preferred stock, as well as the qualifications,
limitations or restrictions thereof, in the certificate of designation relating to that series. We will file as an exhibit to the
registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the
SEC, the form of any certificate of designation that describes the terms of the series of preferred stock that we are offering
before the issuance of the related series of preferred stock. We urge you to read the applicable prospectus supplement (and any
free writing prospectus that we may authorize to be provided to you) related to the series of preferred stock being offered, as
well as the complete certificate of designation that contains the terms of the applicable series of preferred stock.
Debt Securities.
We may issue debt securities from time
to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. The senior
debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated debt securities will be subordinate
and junior in right of payment, to the extent and in the manner described in the instrument governing the debt, to all of our senior
indebtedness. Convertible debt securities will be convertible into or exchangeable for our common stock or preferred stock. Conversion
may be mandatory or at the holder’s option and would be at prescribed conversion rates.
The debt securities will be issued under one or more documents
called indentures, which are contracts between us and a national banking association or other eligible party, as trustee. In this
prospectus, we have summarized certain general features of the debt securities. We urge you, however, to read the applicable prospectus
supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of debt securities
being offered, as well as the complete indentures that contain the terms of the debt securities. Forms of indentures have been
filed as exhibits to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt
securities containing the terms of the debt securities being offered, will be filed as exhibits to the registration statement of
which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
Warrants.
We may issue warrants for the purchase of common
stock in one or more series. We may issue warrants independently or together with common stock, and the warrants may be attached
to or separate from our common stock. In this prospectus, we have summarized certain general features of the warrants. We urge
you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided
to you) related to the particular series of warrants being offered, as well as the complete warrant agreements and/or warrant certificates
that contain the terms of the warrants. We will file as exhibits to the registration statement of which this prospectus is a part,
or will incorporate by reference from reports that we file with the SEC, the forms of warrant agreement and/or warrant certificates
that describe the terms of the series of warrants we are offering before the issuance of the related series of warrants.
We will evidence each series of warrants by warrant certificates
that we will issue. Warrants may be issued under an applicable warrant agreement that we enter into with a warrant agent. We will
indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the particular series
of warrants being offered.
Units.
We may issue, in one or more series, units consisting
of common stock and/or warrants for the purchase of common stock in any combination. Each unit will be issued so that the holder
of the unit is also the holder of each security included in the unit. In this prospectus, we have summarized certain general features
of the units. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize
to be provided to you) related to the series of units being offered, as well as the complete unit agreement, if any, that contains
the terms of the units. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate
by reference from reports that we file with the SEC, any form of unit agreement and any supplemental agreements that describe the
terms of the series of units we are offering before the issuance of the related series of units.
RISK FACTORS
Investing in our securities involves risks. You should carefully
consider the risk factors contained in the applicable prospectus supplement and any related free writing prospectus for a specific
offering of securities, as well as those incorporated by reference in this prospectus, before making an investment decision. You
should also carefully consider other information contained and incorporated by reference in this prospectus and any applicable
prospectus supplement, including our financial statements and the related notes thereto incorporated by reference in this prospectus.
The risks and uncertainties described in the applicable prospectus supplement and our other filings with the SEC incorporated by
reference herein are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently
consider immaterial may also adversely affect us. If any of the described risks occur, our business, financial condition or results
of operations could be materially harmed. In such case, the value of our securities could decline and you may lose all or part
of your investment.
FORWARD-LOOKING STATEMENTS
This prospectus, the documents incorporated by reference herein
contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities
Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. Forward-looking statements are
those that predict or describe future events or trends and that do not relate solely to historical matters. You can generally identify
forward-looking statements as statements containing the words “believe,” “expect,” “may,” “will,”
“anticipate,” “intend,” “estimate,” “project,” “plan,” “assume”
or other similar expressions, although not all forward-looking statements contain these identifying words. All statements contained
in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein and therein regarding
our future strategy, plans and expectations regarding clinical trials, future regulatory approvals, our plans for the manufacturing
and commercialization of our products, future operations, projected financial position, potential future revenues, projected costs,
future prospects, and results that might be obtained by pursuing management’s current plans and objectives are forward-looking
statements. Forward-looking statements include, but are not necessarily limited to, those relating to:
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our need for, and ability
to raise, additional capital;
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the results and timing
of our clinical trials;
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the regulatory review
process and any regulatory approvals that may be issued or denied by the Food and Drug Administration, the European Medicines
Agency, or other regulatory agencies;
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our manufacturing plans;
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our need to secure collaborators
to license, manufacture, market and sell any products for which we receive regulatory approval in the future;
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the results of our internal
research and development efforts; the commercial success and market acceptance of any of our product candidates that are approved
for marketing in the United States or other countries;
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the safety and efficacy
of medicines or treatments introduced by competitors that are targeted to indications which our product candidates have been developed
to treat;
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the acceptance and approval
of regulatory filings;
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our current or prospective
collaborators’ compliance or non-compliance with their obligations under our agreements with them, or decisions by our collaborators
to discontinue clinical trials and return product candidates to us;
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our plans to develop
other product candidates; and
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other factors discussed
elsewhere in this prospectus or the documents incorporated by reference herein.
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You should not place undue reliance on our forward-looking statements
because the matters they describe are subject to known and unknown risks, uncertainties and other unpredictable factors, many of
which are beyond our control. Our forward-looking statements are based on the information currently available to us and speak only
as of the date on the cover of this prospectus. New risks and uncertainties arise from time to time, and it is impossible for us
to predict these matters or how they may affect us. We have included important factors in the cautionary forward-looking statements
included in this prospectus, particularly in the section of this prospectus entitled “Risk Factors,” which we believe
over time, could cause our actual results, performance or achievements to differ from the anticipated results, performance or achievements
that are expressed or implied by our forward-looking statements. We have no duty to, and do not intend to, update or revise the
forward-looking statements in this prospectus after the date of this prospectus except to the extent required by the federal securities
laws. You should consider all risks and uncertainties disclosed in our filings with the Securities and Exchange Commission, or
the SEC, described in the sections of this prospectus entitled “Where You Can Find More Information” and “Incorporation
of Certain Information by Reference,” all of which are accessible on the SEC’s website at
www.sec.gov
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RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table sets forth our ratio of earnings to fixed
charges and the ratio of earnings to combined fixed charges and preference securities dividends for each of the periods indicated.
The following table is qualified by the more detailed information appearing in the computation table set forth in
Exhibit 12.1
to the registration statement of which this prospectus is part and our historical financial statements, including the notes to
those financial statements, incorporated by reference in this prospectus.
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Year
Ended
December 31,
2016
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Year
Ended
December 31,
2015
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Year
Ended
December 31,
2014
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Year
Ended
December 31,
2013
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Year
Ended
December 31,
2012
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Ratio of earnings to combined fixed charges and preferred stock dividends
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deficiency
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deficiency
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deficiency
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deficiency
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deficiency
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Deficiency (in thousands) ($)
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$
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19,163
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$
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32,010
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$
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38,125
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$
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24,009
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$
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11,593
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For these purposes, earnings are defined as income before income
taxes and fixed charges, and fixed charges include interest expense on indebtedness, amortization of capitalized interest, and
the portion of operating lease rental expense which is deemed to represent interest. The deficiency is calculated before the loss
attributable to non-controlling interests and is disclosed for periods in which net losses were insufficient to cover fixed charges.
USE OF PROCEEDS
We will retain broad discretion over the use of the net proceeds
from the sale of the securities offered by us hereby. Except as described in any prospectus supplement or any related free writing
prospectus that we may authorize to be provided to you, we currently intend to use the net proceeds from the sale of the securities
offered by us hereby for general corporate purposes, which may include capital expenditures, working capital and general and administrative
expenses. We will set forth in the applicable prospectus supplement or free writing prospectus our intended use for the net proceeds
received from the sale of any securities sold pursuant to the prospectus supplement or free writing prospectus. Pending these uses,
we intend to invest the net proceeds in short-term obligations of the U.S. government and its agencies.
We will not receive any proceeds from the sale by the selling
stockholder of the common stock underlying the warrants covered by this prospectus. However, upon exercise of the warrants for
cash, the selling stockholder would pay us the applicable exercise price of $0.40 per share, or an aggregate of $2,000,000 if the
warrants are exercised for cash in full, subject to certain adjustments in the event of a major transaction, as defined in the
warrants. Under certain conditions set forth in the warrants, the warrants are exercisable on a cashless basis. If the warrants
are exercised on a cashless basis, we would not receive any cash payment from the selling stockholder upon exercise of the warrants.
SELLING STOCKHOLDER
This prospectus also relates to the possible resale by certain
of our stockholder, who we refer to in this prospectus as the “selling stockholder,” of up to 5,000,000 shares of our
common stock that are issuable, upon exercise of certain warrants, prior to the original date of filing of the registration statement
of which this prospectus forms a part. On August 29, 2016, we (i) entered into a Securities Purchase Agreement (the “Securities
Purchase Agreement”) with CVI Investments, Inc. (“CVI”), pursuant to which we issued 5,000,000 shares of
our common stock, $0.0001 par value per share (the “Common Stock”), together with warrants (the “CVI Warrants”)
to purchase up to 5,000,000 shares of Common Stock with an exercise price of $1.00 per share (the “CVI Warrant Exercise Price”)
at a combined offering price of $0.75 per share of Common Stock and accompanying Warrant on September 1, 2016 (the “Offering”).
The Warrants became exercisable immediately upon issuance and
from time to time thereafter through and including the fifth year anniversary of the initial exercise date. The Warrants prohibit
any exercise by a holder that would cause such holder to hold in excess of 4.99% of our then issued and outstanding shares of Common
Stock. This limitation may be increased to 9.99% of our then issued and outstanding shares of Common Stock upon 61 days’
prior written notice from a Warrant holder. The exercise price of the Warrants was subject to adjustment in the event we issued
securities, other than certain permitted issuances, at a per share price less than the exercise price of the Warrants. In the event
of a change of control of the Company, the holder of the CVI Warrants may demand redemption of the CVI Warrants for cash in accordance
with a Black-Scholes option pricing model. As long as any CVI Warrants remained outstanding, we were not able to issue any options
or securities convertible into shares of our Common Stock at a variable price.
On March 27, 2017, we entered into a Waiver and Consent
Letter Agreement (the “Waiver and Consent Agreement”) with CVI, amending the terms of the CVI Warrants. Under the Waiver
and Consent Agreement, CVI waived the right to have the CVI Warrant Exercise Price reduced and the number of shares of Common Stock
underlying the CVI Warrants increased in the event we secure any financing, including debt, which includes issuing or selling shares
of Common Stock for a price per share less than the CVI Warrant Exercise Price. CVI also waived the prohibition on the our ability
to issue or sell shares of its Common Stock, options or convertible securities at a price which varies or may vary with the market
price of the Common Stock or pursuant to an equity credit line or similar “at the market” offering. The waivers are
permanent. In return, we have agreed to reduce the exercise price of the CVI Warrants from $1.00 per share of Common Stock to $0.40
per share of Common Stock and to not issue or sell any shares of our capital stock for a period of 10 trading days following the
execution of the Waiver and Consent Agreement. All other terms of the CVI Warrants remain the same.
The following table sets forth the name of the selling stockholder,
the total number of shares of common stock beneficially owned by the selling stockholder prior to this offering, the percentage
that the selling stockholder beneficially owned prior to this offering, the number of shares of common stock covered by this prospectus
and the total number of shares of common stock and percentage that the selling stockholder will beneficially own upon completion
of this offering. Beneficial ownership is determined in accordance with SEC rules. The information is not necessarily indicative
of beneficial ownership for any other purpose. In general, under these rules a beneficial owner of a security includes any person
who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise has or shares voting power
or investment power with respect to such security. A person is also deemed to be a beneficial owner of a security if that person
has the right to acquire beneficial ownership of such security within 60 days. The amounts set forth below are based upon information
provided to us by representatives of the selling stockholder, or on our records, and are accurate to the best of our knowledge
as of the date specified below. To our knowledge, except as otherwise indicated, and subject to applicable community property laws,
the persons named in the table have sole voting and investment power with respect to all shares of common stock beneficially owned
by that person.
The number of shares of common stock outstanding and percentage
of beneficial ownership before this offering set forth below is computed on the basis of 57,242,164 shares of our common stock
issued and outstanding as of March 15, 2017. The number of shares of common stock and percentage of beneficial ownership after
the consummation of this offering set forth below are based on the number of shares to be issued and outstanding immediately after
the consummation of this offering. Shares of our common stock that a person has the right to acquire within 60 days of the date
of this prospectus are deemed outstanding for purposes of computing the percentage ownership of such person’s holdings, but
are not deemed outstanding for purposes of computing the percentage ownership of any other person.
We do not know when or in what amounts the selling stockholder
may sell or otherwise dispose of the shares covered hereby. The selling stockholder might not sell any or all of the shares covered
by this prospectus or may sell or dispose of some or all of their shares in transactions exempt from the registration requirements
of the Securities Act, or in the open market after the date on which they provided the information set forth in the table below. Because
the selling stockholder may not sell or otherwise dispose of some or all of the shares covered by this prospectus and because there
are currently no agreements, arrangements or understandings with respect to the sale or other disposition of any of the shares,
we cannot estimate the number of the shares that will be held by the selling stockholder after completion of a potential offering.
For purposes of the table below, we have assumed that the selling stockholder will have sold all of the shares covered by this
prospectus upon completion of the applicable offering.
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Common stock beneficially owned
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Shares of common
stock beneficially owned
prior to this offering(1) (2)
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Maximum
number of
shares that
may be
offered
pursuant to
this
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Shares of common stock
beneficially owned after
giving effect to this
offering(3)
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Number
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Percentage
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prospectus
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Number
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Percentage
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CVI Investments, Inc. (4)
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5,000,000
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8.0
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%
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5,000,000
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—
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—
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Total
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5,000,000
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8.0
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%
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5,000,000
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—
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—
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*
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Less than one percent (1%).
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(1)
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Represents the number of shares of common stock that may be issued upon exercise of the warrants. For the purposes hereof,
we assume the issuance of all such shares pursuant to a cash exercise. The actual number of shares of common stock issuable upon
exercise of the warrants is subject to adjustment for any stock split, stock dividend or similar transaction involving the common
stock, and could be materially less or more than such number depending on factors which cannot be predicted by us at this time.
The actual number of shares of common stock described in this prospectus, and included in the registration statement of which this
prospectus is a part, includes such additional number of shares of common stock as may be issued or issuable upon exercise of the
warrants by reason of any stock split, stock dividend or similar transaction involving the common stock, in accordance with Rule 416
under the Securities Act.
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(2)
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The terms of the warrant held by the selling stockholder contains warrants prohibit any exercise that would cause such holder
to hold in excess of 4.99% of our then issued and outstanding shares of common stock. This limitation may be increased to 9.99%
of our then issued and outstanding shares of common stock upon 61 days’ prior written notice from CVI.
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(3)
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Assumes that the selling stockholder will sell all shares of common stock offered by it under this prospectus.
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(4)
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Consists of 5,000,000 shares of common stock issuable upon exercise of warrants. Heights Capital Management, Inc. is the investment
manager to CVI Investments, Inc. and as such may exercise voting and dispositive power over these shares. The principal business
address of CVI Investments, Inc. is P.O. Box 309GT, Ugland House, South Church Street, George Town, Grand Cayman, KY 1-1104, Cayman
Islands.
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PLAN OF DISTRIBUTION
Ampio’s Plan of Distribution
We may sell the securities from time to time pursuant to underwritten
public offerings, negotiated transactions, block trades or a combination of these methods. We may sell the securities to or through
underwriters or dealers, through agents, or directly to one or more purchasers. The securities may be distributed from time to
time in one or more transactions:
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at a fixed price or
prices, which may be changed;
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at market prices prevailing
at the time of sale;
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at prices related to
such prevailing market prices; or
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Each time we offer and sell securities hereto, we will provide
a prospectus supplement that will set forth the terms of the offering of the securities, including:
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the name or names of
the underwriters, if any;
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the purchase price of
the securities and the proceeds we will receive from the sale;
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any over-allotment options
under which underwriters may purchase additional securities;
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any agency fees or underwriting
discounts and other items constituting agents’ or underwriters’ compensation;
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any public offering
price;
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any discounts or concessions
allowed or re-allowed or paid to dealers; and
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any securities exchange
or market on which the securities may be listed.
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If underwriters are used in the sale, they will acquire the
securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public
offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities
will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the public
through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain
conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement, other than
securities covered by any over-allotment option. Any public offering price and any discounts or concessions allowed or re-allowed
or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship. The prospectus
supplement, naming the underwriter, will describe the nature of any such relationship.
We may sell securities directly or through agents we or they
designate from time to time. The prospectus supplement will name any agent involved in the offering and sale of securities and
any commissions we will pay to them. Unless the prospectus supplement states otherwise, any agent will be acting on a best-efforts
basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by
certain purchasers to purchase securities from us at the public offering price set forth in the prospectus supplement pursuant
to delayed delivery contracts providing for payment and delivery on a specified date in the future. The prospectus supplement will
set forth the conditions to these contracts and any commissions we must pay for solicitation of these contracts.
We may provide agents and underwriters with indemnification
against civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments that the agents
or underwriters may make with respect to these liabilities. Agents and underwriters may engage in transactions with, or perform
services for, us in the ordinary course of business.
Any warrants we may offer will be new issues of securities with
no established trading market. Any underwriters may make a market in these securities, but will not be obligated to do so and may
discontinue any market making at any time without notice. We cannot guarantee the liquidity of the trading markets for any securities.
Any underwriter may engage in over-allotment, stabilizing transactions,
short-covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves
sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions
involve purchases of the securities, either through exercise of the over-allotment option or in the open market after the distribution
is completed, to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when
the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those
activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue
any of the activities at any time.
Any underwriters that are qualified market makers on the NYSE
MKT LLC may engage in passive market making transactions in the common stock on the NYSE MKT LLC in accordance with Regulation M
under the Exchange Act, during the business day prior to the pricing of the offering, before the commencement of offers or sales
of the common stock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive
market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid
for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market
maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making may stabilize the market
price of the securities at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued
at any time.
Selling Stockholder’s Plan of Distribution
We are registering the shares of common stock issuable upon
exercise of the warrants held by the selling stockholder to permit the resale of these shares from time to time after the date
of this prospectus. We will not receive any proceeds from the sale by the selling stockholder of the common stock underlying the
warrants covered by this prospectus. However, upon exercise of the warrants for cash, the selling stockholder would pay us the
applicable exercise price of $0.40 per share, or an aggregate of $2,000,000 if the warrants are exercised for cash in full, subject
to certain adjustments in the event of a major transaction, as defined in the warrants. Under certain conditions set forth in the
warrants, the warrants are exercisable on a cashless basis. If the warrants are exercised on a cashless basis, we would not receive
any cash payment from the selling stockholder upon exercise of the warrants.
The selling stockholder may sell all or a portion of the shares
of common stock beneficially owned by it upon exercise of the warrants and offered hereby from time to time directly or through
one or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters or broker-dealers,
the selling stockholder will be responsible for underwriting discounts or commissions or agent’s commissions. The shares
of common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at
varying prices determined at the time of sale or at negotiated prices. These sales may be effected from time to time pursuant to
one or more of the following methods, which may involve crosses or block transactions:
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on any national securities
exchange or U.S. inter-dealer quotation system of a registered national securities association on which the securities may be
listed or quoted at the time of sale;
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in the over-the-counter
market;
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in transactions otherwise
than on these exchanges or systems or in the over-the-counter market;
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through the writing
or settlement of options or other hedging transactions, whether such options are listed on an options exchange or otherwise;
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ordinary brokerage transactions
and transactions in which the broker-dealer solicits purchasers;
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block trades in which
the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to
facilitate the transaction;
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purchases by a broker-dealer
as principal and resale by the broker-dealer for its account;
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an exchange distribution
in accordance with the rules of the applicable exchange;
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public or privately
negotiated transactions;
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through the settlement
of short sales;
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transactions in which
broker-dealers agree with the selling stockholder to sell a specified number of such shares at a stipulated price per share;
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a combination of any
such methods of sale; or
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any other method permitted
pursuant to applicable law.
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If the selling stockholder effects such transactions by selling
shares of common stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive
commissions in the form of discounts, concessions or commissions from the selling stockholder or commissions from purchasers of
the shares of common stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or
commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions
involved). In connection with sales of the shares of common stock or otherwise, the selling stockholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales of the shares of common stock in the course of hedging
in positions they assume. The selling stockholder may also sell shares of common stock short and deliver shares of common stock
covered by this prospectus to close out short positions, and to return borrowed shares in connection with such short sales, provided
that the short sales are made after the registration statement of which this prospectus forms a part is declared effective.
The selling stockholder may also loan or pledge shares of common stock to broker-dealers in connection with bona fide margin accounts
secured by the shares of common stock, which shares broker-dealers could in turn sell if the selling stockholder defaults in the
performance of its respective secured obligations.
The selling stockholder may pledge or grant a security interest
in some or all of the shares of common stock owned by it and, if it defaults in the performance of its secured obligations, the
pledgees or secured parties may offer and sell the shares of common stock from time to time pursuant to this prospectus. The selling
stockholder also may transfer and donate the shares of common stock in other circumstances in which case the transferees, donees
or other successors in interest will be the selling beneficial owners for purposes of this prospectus. We will file an amendment
or supplement to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, amending,
if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders
under this prospectus.
The selling stockholder and any broker-dealer participating
in the distribution of the shares of common stock may be deemed to be “underwriters” within the meaning of the Securities
Act of 1933, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting
commissions or discounts under the Securities Act of 1933. At the time a particular offering of the shares of common stock is made,
a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of common stock being
offered and the terms of the offering, including the name or names of any underwriters, broker-dealers or agents, any discounts,
commissions and other terms constituting compensation from the selling stockholder and any discounts, commissions or concessions
allowed or reallowed or paid to underwriters or broker-dealers.
Under the securities laws of some states, the shares of common
stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares
of common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from
registration or qualification is available and is complied with.
There can be no assurance that the selling stockholder will
sell any or all of the shares of common stock underlying the warrants registered pursuant to the registration statement of which
this prospectus forms a part.
The selling stockholder and any other person participating in
such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, and the rules and regulations
thereunder, including, without limitation, Regulation M of the Securities Exchange Act of 1934, which may limit the timing
of purchases and sales of any of the shares of common stock by the selling stockholder and any other participating person. Regulation M
may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-making
activities with respect to the shares of common stock. All of the foregoing may affect the marketability of the shares of common
stock and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock.
We will pay all expenses of the registration of the shares of
common stock underlying the warrants held by the selling stockholder, including, without limitation, SEC filing fees and expenses
of compliance with state securities or “blue sky” laws; provided, however, that the selling stockholder will pay all
underwriting discounts and selling commissions, if any. We will indemnify the selling stockholder against liabilities, including
liabilities under the Securities Act of 1933, in accordance with the investor rights agreement, or the selling stockholder will
be entitled to contribution. We may be indemnified by the selling stockholder against civil liabilities, including liabilities
under the Securities Act of 1933, that may arise from any written information furnished to us by the selling stockholder specifically
for use in this prospectus, in accordance with the investor rights agreement, or we may be entitled to contribution.
Once sold under the registration statement of which this prospectus
forms a part, the shares of common stock underlying the warrants held by the selling stockholder will be freely tradable by
the purchasers of such shares, other than our affiliates.
Any shares covered by this prospectus that qualify for sale
pursuant to Rule 144 of the Securities Act of 1933 may be sold under Rule 144, rather than pursuant to this prospectus.
DESCRIPTION OF CAPITAL STOCK
General
Our authorized capital stock consists of 100,000,000 shares
of common stock, par value $0.0001 per share, and 10,000,000 shares of undesignated preferred stock, $0.0001 par value, of which
no preferred shares are issued or outstanding.
The following summary description of our capital stock is based
on the provisions of our certificate of incorporation and bylaws and the applicable provisions of the Delaware General Corporation
Law. This information is qualified entirely by reference to the applicable provisions of our certificate of incorporation, bylaws
and the Delaware General Corporation Law. For information on how to obtain copies of our certificate of incorporation and bylaws,
please see “Where You Can Find Additional Information” and “Incorporation of Certain Information by Reference.”
Common Stock
As of March 15, 2017, there were 57,242,164 shares of our
common stock outstanding. Holders of common stock will have voting rights for the election of our directors and all other matters
requiring stockholder action, except with respect to amendments to our certificate of incorporation that alter or change the powers,
preferences, rights or other terms of any outstanding preferred stock if the holders of such affected series of preferred stock
are entitled to vote on such an amendment. There is no cumulative voting with respect to the election of directors, with the result
that the holders of more than 50% of the shares voted for the election of directors can elect all of the directors. Holders of
common stock will be entitled to one vote per share on matters to be voted on by stockholders and also will be entitled to receive
such dividends, if any, as may be declared from time to time by our board of directors in its discretion out of funds legally available
therefor. The payment of dividends, if ever, on the common stock will be subject to the prior payment of dividends on any outstanding
preferred stock, of which there is currently none. Upon our liquidation or dissolution, the holders of common stock will be entitled
to receive
pro rata
all assets remaining available for distribution to stockholders after payment of all liabilities and
provision for the liquidation of any shares of preferred stock at the time outstanding. Our stockholders have no conversion, preemptive
or other subscription rights and there are no sinking fund or redemption provisions applicable to the common stock.
Preferred Stock
Pursuant to our certificate of incorporation, our board of directors
has the authority, without further action by the stockholders (unless such stockholder action is required by applicable law or
stock exchange listing rules), to designate and issue up to 10,000,000 shares of preferred stock in one or more series, to establish
from time to time the number of shares to be included in each such series, to fix the designations, powers, preferences, privileges
and relative participating, optional or special rights and the qualifications, limitations or restrictions thereof, including dividend
rights, conversion rights, voting rights, terms of redemption and liquidation preferences, any or all of which may be greater than
the rights of the common stock, and to increase or decrease the number of shares of any such series, but not below the number of
shares of such series then outstanding.
The board of directors, without stockholder approval, can issue
preferred stock with voting, conversion or other rights that could adversely affect the voting power and other rights of the holders
of common stock. Preferred stock could be issued quickly with terms designed to delay or prevent a change in control of our company
or make removal of management more difficult. Additionally, the issuance of preferred stock may have the effect of decreasing the
market price of the common stock and may adversely affect the voting power of holders of common stock and reduce the likelihood
that common stockholders will receive dividend payments and payments upon liquidation.
Our board of directors will fix the designations, voting powers,
preferences and rights of the each series, as well as the qualifications, limitations or restrictions thereof, of the preferred
stock of each series that we offer under this prospectus and applicable prospectus supplements in the certificate of designation
relating to that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate
by reference from reports that we file with the SEC, the form of any certificate of designation that describes the terms of the
series of preferred stock we are offering before the issuance of that series of preferred stock. This description will include:
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the title and stated
value;
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the number of shares
we are offering;
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the liquidation preference
per share;
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the purchase price per
share;
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the dividend rate per
share, dividend period and payment dates and method of calculation for dividends;
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whether dividends will
be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
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our right, if any, to
defer payment of dividends and the maximum length of any such deferral period;
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the procedures for any
auction and remarketing, if any;
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the provisions for a
sinking fund, if any;
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the provisions for redemption
or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights;
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any listing of the preferred
stock on any securities exchange or market;
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whether the preferred
stock will be convertible into our common stock or other securities of ours, including depositary shares and warrants, and, if
applicable, the conversion period, the conversion price, or how it will be calculated, and under what circumstances it may be
adjusted;
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whether the preferred
stock will be exchangeable into debt securities, and, if applicable, the exchange period, the exchange price, or how it will be
calculated, and under what circumstances it may be adjusted;
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voting rights, if any,
of the preferred stock;
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preemption rights, if
any;
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restrictions on transfer,
sale or other assignment, if any;
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whether interests in
the preferred stock will be represented by depositary shares;
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a discussion of any
material or special United States federal income tax considerations applicable to the preferred stock;
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the relative ranking
and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs;
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any limitations on issuances
of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock being issued as
to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
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any other specific terms,
rights, preferences, privileges, qualifications or restrictions of the preferred stock.
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The General Corporation Law of the State of Delaware, the state
of our incorporation, provides that the holders of preferred stock will have the right to vote separately as a class (or, in some
cases, as a series) on an amendment to our certificate of incorporation if the amendment would change the par value or, unless
the certificate of incorporation provided otherwise, the number of authorized shares of the class or change the powers, preferences
or special rights of the class or series so as to adversely affect the class or series, as the case may be. This right is in addition
to any voting rights that may be provided for in the applicable certificate of designation.
Delaware Anti-Takeover Law and Provisions of our Certificate
of Incorporation and Bylaws
Delaware Anti-Takeover Law.
As a Delaware corporation, we are governed by the provisions
of Section 203 of the Delaware General Corporation Law, which generally has an anti-takeover effect for transactions not approved
in advance by our board of directors. This may discourage takeover attempts that might result in payment of a premium over the
market price for the shares of common stock held by stockholders. In general, Section 203 prohibits a publicly held Delaware
corporation from engaging in a “business combination” with an “interested stockholder” for a three-year
period following the time that such stockholder becomes an interested stockholder, unless the business combination is approved
in a prescribed manner. A “business combination” includes, among other things, a merger, asset or stock sale or other
transaction resulting in a financial benefit to the interested stockholder. An “interested stockholder” is a person
who, together with affiliates and associates, owns, or did own within three years prior to the determination of interested stockholder
status, 15% or more of the corporation’s voting stock.
Under Section 203, a business combination between a corporation
and an interested stockholder is prohibited unless it satisfies one of the following conditions:
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before the stockholder
became interested, the board of directors approved either the business combination or the transaction which resulted in the stockholder
becoming an interested stockholder; or
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upon consummation of
the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining
the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) shares owned by:
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persons who are directors
and also officers; and
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employee stock plans,
in some instances; or
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at or after the time
the stockholder became interested, the business combination was approved by the board of directors of the corporation and authorized
at an annual or special meeting of the stockholders by the affirmative vote of at least two-thirds of the outstanding voting stock
which is not owned by the interested stockholder.
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Staggered board of directors
Our Delaware certificate of incorporation provides that our
board of directors will be classified into three classes of directors of approximately equal size at a date selected by the board.
Currently our board of directors is not classified. As a result, in most circumstances, a person can gain control of our board
only by successfully engaging in a proxy contest at two or more annual meetings.
Advance notice requirements for stockholder proposals and
director nominations
Our Delaware bylaws provide that stockholders seeking to bring
business before our annual meeting of stockholders, or to nominate candidates for election as directors at our annual meeting of
stockholders, must provide timely notice of their intent in writing. To be timely, a stockholder’s notice needs to be delivered
to our principal executive offices not later than the close of business on the 90th day nor earlier than the close of business
on the 120th day prior to the first anniversary of the preceding year’s annual meeting of stockholders. Our bylaws also specify
certain requirements as to the form and content of a stockholders’ meeting. These provisions may preclude our stockholders
from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual meeting
of stockholders.
Authorized but unissued shares
Our authorized but unissued shares of common stock and preferred
stock are available for future issuances without stockholder approval and could be utilized for a variety of corporate purposes,
including future offerings to raise additional capital, acquisitions and employee benefit plans. The existence of authorized but
unissued and unreserved common stock and preferred stock could render more difficult or discourage an attempt to obtain control
of us by means of a proxy contest, tender offer, merger or otherwise.
Limitation on liability and indemnification of directors
and officers
Our Delaware certificate of incorporation and bylaws provide
that our directors and officers will be indemnified by us to the fullest extent authorized by Delaware law as it now exists or
may in the future be amended, against all expenses and liabilities reasonably incurred in connection with their service for or
on our behalf. Our bylaws permit us to secure insurance on behalf of any officer, director or employee for any liability arising
out of his or her actions, regardless of whether Delaware law would permit indemnification.
These provisions may discourage stockholders from bringing a
lawsuit against our directors for breach of their fiduciary duty. These provisions also may have the effect of reducing the likelihood
of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit us
and our stockholders. Furthermore, a stockholder’s investment may be adversely affected to the extent we pay the costs of
settlement and damage awards against directors and officers pursuant to these indemnification provisions. We believe that these
provisions, insurance and the indemnity agreements are necessary to attract and retain talented and experienced directors and officers.
Other than the two putative class action lawsuits in the United
States District Court in the Central District of California, Napoli v. Ampio Pharmaceuticals, Inc., et al., Case No. 2:15-cv-03474-TJH
and Stein v. Ampio Pharmaceuticals, Inc., et al., Case No. 2:15-cv-03640-TJH described in our Annual Report on Form 10-K and filed
with the SEC on March 16, 2017, there is no pending litigation or proceeding involving any of our directors or officers where
indemnification by us would be required or permitted, nor are we aware of any threatened litigation or proceeding that might result
in a claim for such indemnification. Insofar as indemnification for liabilities arising under the Securities Act of 1933, or the
Act, may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we
have 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.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Corporate
Stock Transfer, Inc., 3200 Cherry Creek Drive South, Suite 430, Denver, Colorado 80209.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities, in one or more series, as either
senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized below will apply
generally to any future debt securities we may offer under this prospectus, the applicable prospectus supplement or free writing
prospectus will describe the specific terms of any debt securities offered through that prospectus supplement or free writing prospectus.
The terms of any debt securities we offer under a prospectus supplement or free writing prospectus may differ from the terms we
describe below. Unless the context requires otherwise, whenever we refer to the “indentures,” we are also referring
to any supplemental indentures that specify the terms of a particular series of debt securities.
We will issue any senior debt securities under the senior indenture
that we will enter into with the trustee named in the senior indenture. We will issue any subordinated debt securities under the
subordinated indenture that we will enter into with the trustee named in the subordinated indenture. We have filed forms of these
documents as exhibits to the registration statement, of which this prospectus is a part, and supplemental indentures and forms
of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement
of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
The indentures will be qualified under the Trust Indenture Act
of 1939, as amended, or the Trust Indenture Act. We use the term “trustee” to refer to either the trustee under the
senior indenture or the trustee under the subordinated indenture, as applicable.
The following summaries of material provisions of the senior
debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety by reference
to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable
prospectus supplement or free writing prospectus and any related free writing prospectuses related to the debt securities that
we may offer under this prospectus, as well as the complete applicable indenture that contains the terms of the debt securities.
Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture are identical.
General
We will describe in the applicable prospectus supplement or
free writing prospectus the terms of the series of debt securities being offered, including:
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the principal amount
being offered, and if a series, the total amount authorized and the total amount outstanding;
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any limit on the amount
that may be issued;
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whether or not we will
issue the series of debt securities in global form, and, if so, the terms and who the depository will be;
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whether and under what
circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United States person
for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts;
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the annual interest
rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates
interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
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whether or not the debt
securities will be secured or unsecured, and the terms of any secured debt;
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the terms of the subordination
of any series of subordinated debt;
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the place where payments
will be payable;
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restrictions on transfer,
sale or other assignment, if any;
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our right, if any, to
defer payment of interest and the maximum length of any such deferral period;
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the date, if any, after
which, the conditions upon which, and the price at which, we may, at our option, redeem the series of debt securities pursuant
to any optional or provisional redemption provisions and the terms of those redemption provisions;
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the date, if any, on
which, and the price at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise,
to redeem, or at the holder’s option, to purchase, the series of debt securities and the currency or currency unit in which
the debt securities are payable;
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whether the indenture
will restrict our ability or the ability of our subsidiaries, if any at such time, to:
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incur additional indebtedness;
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issue additional securities;
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pay dividends or make distributions in respect of our
capital stock or the capital stock of our subsidiaries;
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place restrictions on our subsidiaries’ ability
to pay dividends, make distributions or transfer assets;
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make investments or other restricted payments;
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sell or otherwise dispose of assets;
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enter into sale-leaseback transactions;
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engage in transactions with stockholders or affiliates;
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issue or sell stock of our subsidiaries; or
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effect a consolidation or merger;
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whether the indenture
will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios;
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a discussion of certain
material or special United States federal income tax considerations applicable to the debt securities;
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information describing
any book-entry features;
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provisions for a sinking
fund purchase or other analogous fund, if any;
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the applicability of
the provisions in the indenture on discharge;
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whether the debt securities
are to be offered at a price such that they will be deemed to be offered at an “original issue discount” as defined
in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended;
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the denominations in
which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof;
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the currency of payment
of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; and
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any other specific terms,
preferences, rights or limitations of, or restrictions on, the debt securities, including any additional events of default or
covenants provided with respect to the debt securities, and any terms that may be required by us or advisable under applicable
laws or regulations or advisable in connection with the marketing of the debt securities.
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Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement or
free writing prospectus the terms on which a series of debt securities may be convertible into or exchangeable for our common stock,
our preferred stock or other securities (including securities of a third-party). We will include provisions as to whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number
of shares of our common stock, our preferred stock or other securities (including securities of a third-party) that the holders
of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement or
free writing prospectus applicable to a particular series of debt securities, the indentures will not contain any covenant that
restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our
assets. However, any successor to or acquirer of such assets must assume all of our obligations under the indentures or the debt
securities, as appropriate. If the debt securities are convertible into or exchangeable for other securities of ours or securities
of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for
the conversion of the debt securities into securities that the holders of the debt securities would have received if they had converted
the debt securities before the consolidation, merger or sale.
Events of Default Under the Indenture
Unless we provide otherwise in the prospectus supplement or
free writing prospectus applicable to a particular series of debt securities, the following are events of default under the indentures
with respect to any series of debt securities that we may issue:
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if we fail to pay interest
when due and payable and our failure continues for 90 days and the time for payment has not been extended;
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if we fail to pay the
principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or repurchase or otherwise,
and the time for payment has not been extended;
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if we fail to observe
or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically relating
to another series of debt securities, and our failure continues for 90 days after we receive notice from the trustee or holders
of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and
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if specified events
of bankruptcy, insolvency or reorganization occur.
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We will describe in each applicable prospectus supplement or
free writing prospectus any additional events of default relating to the relevant series of debt securities.
If an event of default with respect to debt securities of any
series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders
of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and
to the trustee if notice is given by such holders, may declare the unpaid principal, premium, if any, and accrued interest, if
any, due and payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the
unpaid principal, premium, if any, and accrued interest, if any, of each issue of debt securities then outstanding shall be due
and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority in principal amount of the outstanding
debt securities of an affected series may waive any default or event of default with respect to the series and its consequences,
except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default
or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indentures, if an event of default
under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers
under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such
holders have offered the trustee reasonable indemnity or security satisfactory to it against any loss, liability or expense. The
holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred
on the trustee, with respect to the debt securities of that series, provided that:
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the direction so given
by the holder is not in conflict with any law or the applicable indenture; and
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subject to its duties
under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly
prejudicial to the holders not involved in the proceeding.
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A holder of the debt securities of any series will have the
right to institute a proceeding under the indentures or to appoint a receiver or trustee, or to seek other remedies if:
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the holder has given
written notice to the trustee of a continuing event of default with respect to that series;
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the holders of at least
25% in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holders
have offered reasonable indemnity to the trustee or security satisfactory to it against any loss, liability or expense or to be
incurred in compliance with instituting the proceeding as trustee; and
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the trustee does not
institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding
debt securities of that series other conflicting directions within 90 days after the notice, request and offer.
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These limitations do not apply to a suit instituted by a holder
of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities, or other
defaults that may be specified in the applicable prospectus supplement or free writing prospectus.
We will periodically file statements with the trustee regarding
our compliance with specified covenants in the indentures.
Modification of Indenture; Waiver
Subject to the terms of the indenture for any series of debt
securities that we may issue, we and the trustee may change an indenture without the consent of any holders with respect to the
following specific matters:
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to fix any ambiguity,
defect or inconsistency in the indenture;
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to comply with the provisions described above under “—Consolidation, Merger or Sale;”
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to comply with any requirements
of the SEC in connection with the qualification of any indenture under the Trust Indenture Act;
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to add to, delete from
or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication
and delivery of debt securities, as set forth in the indenture;
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to provide for the issuance
of and establish the form and terms and conditions of the debt securities of any series as provided under “Description of
Our Debt Securities—General,” to establish the form of any certifications required to be furnished pursuant to the
terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities;
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to evidence and provide
for the acceptance of appointment hereunder by a successor trustee;
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to provide for uncertificated
debt securities and to make all appropriate changes for such purpose;
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to add to our covenants
such new covenants, restrictions, conditions or provisions for the benefit of the holders, to make the occurrence, or the occurrence
and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default
or to surrender any right or power conferred to us in the indenture; or
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to change anything that
does not materially adversely affect the interests of any holder of debt securities of any series.
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In addition, under the indentures, the rights of holders of
a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority
in aggregate principal amount of the outstanding debt securities of each series that is affected. However, subject to the terms
of the indenture for any series of debt securities that we may issue or as otherwise provided in the prospectus supplement or free
writing prospectus applicable to a particular series of debt securities, we and the trustee may make the following changes only
with the consent of each holder of any outstanding debt securities affected:
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extending the stated
maturity of the series of debt securities;
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reducing the principal
amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption
or repurchase of any debt securities; or
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reducing the percentage
of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver.
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Discharge
Each indenture provides that, subject to the terms of the indenture
and any limitation otherwise provided in the prospectus supplement or free writing prospectus applicable to a particular series
of debt securities, we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for specified obligations, including obligations to:
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register the transfer
or exchange of debt securities of the series;
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replace stolen, lost
or mutilated debt securities of the series;
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maintain paying agencies;
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hold monies for payment
in trust;
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recover excess money
held by the trustee;
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compensate and indemnify
the trustee; and
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appoint any successor
trustee.
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In order to exercise our rights to be discharged, we must deposit
with the trustee money or government obligations sufficient to pay all the principal of, any premium and interest on, the debt
securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in fully
registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement or free writing prospectus,
in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series
in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company or another depository named by us and identified in a prospectus supplement or free writing prospectus with respect
to that series.
At the option of the holder, subject to the terms of the indentures
and the limitations applicable to global securities described in the applicable prospectus supplement or free writing prospectus,
the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series,
in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable
to global securities set forth in the applicable prospectus supplement or free writing prospectus, holders of the debt securities
may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office
of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents
for transfer or exchange, we will make no service charge for any registration of transfer or exchange, but we may require payment
of any taxes or other governmental charges.
We will name in the applicable prospectus supplement or free
writing prospectus the security registrar, and any transfer agent in addition to the security registrar, that we initially designate
for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent
or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer
agent in each place of payment for the debt securities of each series. If we elect to redeem the debt securities of any series,
we will not be required to:
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issue, register the
transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the
close of business on the day of the mailing; or
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register the transfer
of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt
securities we are redeeming in part.
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Information Concerning the Trustee
The trustee, other than during the occurrence and continuance
of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the applicable
indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would
exercise or use in the conduct of his or her own affairs.
Subject to this provision, the trustee is under no obligation
to exercise any of the powers given it by the indentures at the request of any holder of debt securities unless it is offered reasonable
security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement
or free writing prospectus, we will make payment of the interest on any debt securities on any interest payment date to the person
in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular
record date for the interest.
We will pay principal of and any premium and interest on the
debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate
in the applicable prospectus supplement or free writing prospectus, we will make interest payments by check that we will mail to
the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement or free
writing prospectus, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect
to debt securities of each series. We will name in the applicable prospectus supplement or free writing prospectus any other paying
agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place
of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee for the payment
of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after such
principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter
may look only to us for payment thereof.
Governing Law
The indentures and the debt securities will be governed by and
construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Ranking of Debt Securities
The subordinated debt securities will be subordinate and junior
in priority of payment to certain of our other indebtedness to the extent described in a prospectus supplement or free writing
prospectus. The subordinated indenture does not limit the amount of subordinated debt securities that we may issue. It also does
not limit us from issuing any other secured or unsecured debt.
The senior debt securities will rank equally in right of payment
to all our other senior unsecured debt. The senior indenture does not limit the amount of senior debt securities that we may issue.
It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of common stock in one
or more series. We may issue warrants independently or together with common stock, and the warrants may be attached to or separate
from these securities. While the terms summarized below will apply generally to any warrants that we may offer, we will describe
the particular terms of any series of warrants in more detail in the applicable prospectus supplement. The terms of any warrants
offered under a prospectus supplement may differ from the terms described below.
We will file as exhibits to the registration statement of which
this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant agreement,
including a form of warrant certificate, that describes the terms of the particular series of warrants we are offering before the
issuance of the related series of warrants. The following summaries of material provisions of the warrants and the warrant agreements
are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate
applicable to the particular series of warrants that we may offer under this prospectus. We urge you to read the applicable prospectus
supplements related to the particular series of warrants that we may offer under this prospectus, as well as any related free writing
prospectuses, and the complete warrant agreements and warrant certificates that contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement the
terms of the series of warrants being offered, including:
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the offering price and
aggregate number of warrants offered;
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the currency for which
the warrants may be purchased;
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if applicable, the designation
and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each
principal amount of such security;
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if applicable, the date
on and after which the warrants and the related securities will be separately transferable;
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the number of shares
of common stock purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
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the effect of any merger,
consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
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the terms of any rights
to redeem or call the warrants;
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any provisions for changes
to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the dates on which the
right to exercise the warrants will commence and expire;
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the manner in which
the warrant agreements and warrants may be modified;
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a discussion of any
material or special United States federal income tax consequences of holding or exercising the warrants;
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the terms of the securities
issuable upon exercise of the warrants; and
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any other specific terms,
preferences, rights or limitations of or restrictions on the warrants.
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Before exercising their warrants, holders of warrants will not
have any of the rights of holders of the securities purchasable upon such exercise, including the right to receive dividends, if
any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities
that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus supplement.
Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time
up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business
on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering
the warrant certificate representing the warrants to be exercised together with specified information, and paying the required
amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth
on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the holder of the
warrant will be required to deliver to the warrant agent.
Upon receipt of the required payment and the warrant certificate
properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable
prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the warrants
represented by the warrant certificate are exercised, then we will issue a new warrant certificate for the remaining amount of
warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or
part of the exercise price for warrants.
Governing Law
Unless we provide otherwise in the applicable prospectus supplement,
the warrants and warrant agreements will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single
bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility
in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate
any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related
warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities
purchasable upon exercise of, its warrants.
DESCRIPTION OF UNITS
We may issue, in one or more series, units consisting of common
stock and/or warrants for the purchase of common stock in any combination. Each unit will be issued so that the holder of the unit
is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a
holder of each included security. The units may be issued under unit agreements to be entered into between us and a unit agent,
as detailed in the prospectus supplement relating to the units being offered. The prospectus supplement will describe:
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the designation and
terms of the units and of the securities comprising the units, including whether and under what circumstances the securities comprising
the units may be held or transferred separately;
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a description of the
terms of any unit agreement governing the units;
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a description of the
provisions for the payment, settlement, transfer or exchange of the units; and
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whether the units if
issued as a separate security will be issued in fully registered or global form.
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While the terms summarized above will apply generally to any
units that we may offer, we will describe the particular terms of any series of units in more detail in the applicable prospectus
supplement. The terms of any units offered under a prospectus supplement may differ from the terms described above. We will file
as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that
we file with the SEC, any form of unit agreement, including any related agreements or certificates, that describes the terms of
the particular series of units we are offering before the issuance of the related series of units. The material provisions of the
units and any unit agreements are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement
and related agreements and certificates applicable to the particular series of units that we may offer under this prospectus. We
urge you to read the applicable prospectus supplements related to the particular series of units that we may offer under this prospectus,
as well as any related free writing prospectuses, and the complete unit agreements and related agreements and certificates that
contain the terms of the units.
LEGAL MATTERS
The validity of the securities being offered by this prospectus
will be passed upon by Goodwin Procter LLP, New York, New York. Additional legal matters may be passed upon for us or any underwriters,
dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The financial statements of Ampio Pharmaceuticals, Inc. as of
December 31, 2016 and 2015 and for each of the years in the three-year period ended December 31, 2016, have been incorporated
by reference herein from our Annual Report on Form 10-K for the year ended December 31, 2016, in reliance upon the report
of EKS&H LLLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
This prospectus is part of a registration statement that we
have filed with the SEC. Certain information in the registration statement has been omitted from this prospectus in accordance
with the rules of the SEC. We are a public company and file proxy statements, annual, quarterly and special reports and other
information with the SEC. The registration statement, such reports and other information can be inspected and copied at the Public
Reference Room of the SEC located at 100 F Street, N.E., Washington D.C. 20549. Copies of such materials, including copies
of all or any portion of the registration statement, can be obtained from the Public Reference Room of the SEC at prescribed
rates. You can call the SEC at 1-800-SEC-0330 to obtain information on the operation of the Public Reference Room. Such materials
may also be accessed electronically by means of the SEC’s home page on the Internet
(www.sec.gov)
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INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE
The SEC allows us to “incorporate by reference”
the information we file with it, which means that we can disclose important information to you by referring you to those documents
instead of having to repeat the information in this prospectus. The information incorporated by reference is considered to be part
of this prospectus, and later information that we file with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below that we have filed with the SEC:
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our Annual Report on
Form 10-K for the year ended December 31, 2016, filed on
March 16, 2017
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the description of our
common stock contained or incorporated by reference in our Registration Statement on Form 8-A, filed on
May 17, 2011
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including any amendment or reports filed for the purpose of updating this description.
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We also incorporate by reference into this prospectus all documents
(other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are
related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after
the date of the initial filing of the registration statement of which this prospectus is a part and prior to effectiveness of the
registration statement, or (ii) after the date of this prospectus until we sell all of the shares covered by this prospectus
or the sale of shares by us pursuant to this prospectus is terminated.
You may access our Annual Report on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K and amendments to any of these reports, free of charge on the SEC’s
website. You may also access the documents incorporated by reference on our website at
www.ampiopharma.com
. Other than the
foregoing documents incorporated by reference, the information contained in, or that can be accessed through, our website is not
part of this prospectus.
In addition, we will furnish without charge to each person,
including any beneficial owner, to whom a prospectus is delivered, on written or oral request of such person, a copy of any or
all of the documents incorporated by reference in this prospectus (not including exhibits to such documents, unless such exhibits
are specifically incorporated by reference in this prospectus or into such documents). Such requests may be directed to Ampio Pharmaceuticals,
Inc., 373 Inverness Parkway, Suite 200, Englewood, Colorado 80112 or call (720) 437-6500.
Shares
of Common Stock
Ampio Pharmaceuticals, Inc.
ThinkEquity
a division of Fordham Financial Management,
Inc.
June 17, 2019
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