AMPE Ampio Pharmaceuticals Inc

​

​

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) 

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): January 25, 2024

AMPIO PHARMACEUTICALS, INC.

(Exact name of registrant as specified in its charter)

​

​

9800 Mount Pyramid Court, Suite 400

Englewood, Colorado 80112

(Address of Principal Executive Offices) (Zip Code)

Registrant’s telephone number, including area code: (720) 437-6500

​

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

​

​

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

​

​

​

​

​

Ampio Pharmaceuticals, Inc. (the “Company”) is party to an At The Market Offering Agreement, dated September 18, 2023 (the “ATM Agreement”) with H. C. Wainwright & Co., LLC (“Wainwright”), under which the Company may, from time to time, issue and sell shares of the Company’s common stock, $0.0001 par value per share (“Common Stock”), through Wainwright as sales agent.

​

On January 25, 2024, the Company filed a prospectus supplement (the “Prospectus Supplement”) to the base prospectus (“Base Prospectus” and, together with the Prospectus Supplement, the “Prospectus”) included in the Registration Statement on Form S-3 (File No. 333-274558), which became effective under the Securities Act of 1933, as amended, on September 27, 2023, in connection with the ATM Agreement. Pursuant to the Prospectus Supplement, from time to time the Company may offer and sell shares of its common stock having an aggregate gross sales price of up to $1,315,900 through Wainwright under the ATM Agreement.

​

The shares of the Company’s common stock are registered pursuant to the Registration Statement, and offers of the common stock will be made only by means of a Prospectus. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy shares of the Company’s common stock, nor shall there be any sale of the Company’s common stock, in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.

​

The legal opinion of Ballard Spahr LLP relating to the shares of the Company’s common stock being offered pursuant to the ATM Agreement and Prospectus Supplement is filed as Exhibit 5.1 to this Current Report on Form 8-K and is incorporated by reference herein.

​

Item 9.01.Financial Statements and Exhibits.

​

Exhibit No.Description

​

5.1Opinion of Ballard Spahr LLP

​

23.1Consent of Ballard Spahr LLP (contained in Exhibit 5.1)

​

104Cover Page Interactive Data File (embedded within the Inline XBRL document)

​

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

​

​

​

​

​

​

January 25, 2024

Ampio Pharmaceuticals, Inc.

9800 Mount Pyramid Court, Suite 400

Englewood, Colorado 80112

​

RE: Ampio Pharmaceuticals, Inc.

Ladies and Gentlemen:

We have acted as legal counsel to Ampio Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the transactions contemplated by that certain At The Market Offering Agreement, dated as of September 18, 2023 (the “ATM Agreement”), by and between the Company and H.C. Wainwright & Co., LLC, as manager, relating to the issuance and sale by the Company of that number of shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”) having an aggregate offering price of up to $1,315,900, all as more fully described in the base prospectus, dated September 27, 2023 (the “Base Prospectus”) contained in the Registration Statement on Form S-3 (File No. 333-274558) (the “Registration Statement”), as supplemented by a prospectus supplement, dated January 25, 2024 (together with the Base Prospectus, the “Prospectus”), each as filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). This opinion letter is being delivered at your request pursuant to the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

We have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. We have relied upon the certificate of incorporation and bylaws of the Company in effect on the date hereof, as and in the forms certified to us by the Company. We have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We have assumed without independent verification that (i) the obligations of each party to any such document we examined are or will be its valid and binding obligations, enforceable in accordance with its terms; (ii) each natural person executing a document has, or when each Terms Agreement (as defined in the ATM Agreement) is signed will have, sufficient legal capacity to do so; (iii) all documents submitted to us as originals are authentic, the signatures on all documents we reviewed are genuine, and any document submitted to us as certified, conformed, photostatic, electronic or facsimile copies conform to the original document; (iv) all corporate records made available to us by the Company, and all public records we have reviewed, are accurate and complete; (v) prior to any issuance of Shares, each Terms Agreement with respect to such Shares will have been duly executed and delivered by the Company and the other parties thereto in accordance with the ATM Agreement; (vi) after the issuance of any Shares, the total number of issued and outstanding shares of Common Stock, together with the total number of shares of Common Stock then reserved for

​

Ampio Pharmaceuticals, Inc.
January 25, 2024

Page 2

​

issuance or obligated to be issued by the Company pursuant to any agreement, plan, arrangement or otherwise, will not exceed the total number of shares of Common Stock then authorized under the Company’s certificate of incorporation; and (vii) each Share will be sold pursuant to the ATM Agreement at a price that is not less than the par value per share of the Common Stock.

The opinions expressed below are limited to the Delaware General Corporation Law.

Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, the Shares have been duly authorized by the Company and when issued and paid for in accordance with the terms and conditions of the ATM Agreement in the manner contemplated by the Registration Statement and the Prospectus, the Shares will be validly issued, fully paid and nonassessable.

This opinion is being delivered solely for the benefit of the Company and such other persons as are entitled to rely upon it pursuant to applicable provisions of the Securities Act. This opinion may not be used, quoted, relied upon or referred to for any other purpose, nor may this opinion be used, quoted, relied upon or referred to by any other person, for any purpose, in each case without our prior written consent. We assume no obligation to advise you of any changes in the foregoing subsequent to the effective date of the Registration Statement. This opinion is to be relied upon only in connection with the offer and sale of the Shares while the Registration Statement and any and all required post-effective amendments thereto are effective.

We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K and to reference to us under the caption “Legal Matters” in the Prospectus. In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Securities Act or the rules or regulations of the Commission thereunder.

Sincerely,

​

/s/ Ballard Spahr LLP

​