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AMPIO PHARMACEUTICALS, INC. 373 Inverness Parkway, Suite 200 Englewood, Colorado 80112 NOTICE OF ANNUAL MEETING OF STOCKHOLDERS To Our Stockholders: the Stockholders of Ampio Pharmaceuticals, Inc.: Notice is hereby given tothat the stockholders of Ampio Pharmaceuticals, Inc. that an2021 Annual Meeting of Stockholders (the “Annual Meeting”“Annual Meeting”) of Ampio Pharmaceuticals, Inc. (the “Company”), will be held at 9:00 a.m. Mountain Time on Saturday, September 16, 2017August 14, 2021, in a virtual format only via live webcast at 10:00 a.m.www.virtualshareholdermeeting.com/AMPE2021, local time, at the Inverness Hotel, located at 200 Inverness Drive West, Englewood, CO 80112, for the purpose of considering and taking action on the following purposes: proposals: | (1) | To elect five directors, nominated by our Board of Directors, to serve until our 20172022 Annual Meeting of Stockholders (the “2022 Annual Meeting”) and until their respective successors are duly elected and qualified or their earlier resignation or removal. |
| | | | (2) | To ratify the selection of EKS&H LLLPMoss Adams LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2017.2021. |
| | | | (3) | To hold an advisory (non-binding) vote to approve the compensation of the Company’s named executive officers, as disclosed in the proxy statement. |
| (4) | To consider and vote upon a proposal to approve an amendment to the Certificate of Incorporation to increase the number of shares of authorized Common Stock. | | | | | (4) | To transact such other business as may properly come before the meeting or any adjournment(s) or postponement(s) thereof. |
Due to the ongoing health impact of the coronavirus outbreak (“COVID-19 pandemic”), this year’s Annual Meeting will be conducted in a virtual format only in order to assist in protecting the health and well-being of our stockholders and employees and to provide access to our stockholders regardless of geographic location. Stockholders will not be able to attend the Annual Meeting in person; however, stockholders will be able to participate, vote electronically and submit questions during the live webcast of the Annual Meeting by visiting www.virtualshareholdermeeting.com/AMPE2021 and entering the control number found on their proxy card or voting instruction form. If you encounter difficulties accessing the virtual Annual Meeting, please call the technical support number available on the virtual meeting page on the day of the Annual Meeting. Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting to be held on Saturday, August 14, 2021: Our Annual Report on Form 10-K and Notice and Proxy Statement are available at www.proxyvote.com. This communication presents only an overview of the more complete proxy materials included herewith which isare also available to you on the Internet. The enclosed Proxy Statement includes information relatingIn accordance with the Securities and Exchange Commission (“SEC”) rule (“Notice and Access Rule”) that allows companies to furnish their proxy materials (including the above proposals. We encourage you to review allform of the important information contained inproxy, the proxy materials before voting. Our proxy materials (which include the Proxy Statement attached to this notice,statement and our most recent Annual Report on Form 10-K and proxy card) are available to you viafor the internet at www.proxyvote.com. Stockholders may complete their proxy and authorize their vote by proxyfiscal year ended December 31, 2020, filed with the SEC on March 3, 2021) over the Internet, at www.proxyvote.comwe intend to send a Notice of Internet Availability of Proxy Materials (“Notice”) on or by telephone at 1-800-690-6903. Stockholders who complete their proxy electronically or by telephone do not needabout June 30, 2021 to return a proxy card. Stockholders may authorize their vote by proxy by mail by completing and returning the enclosed proxy card.
All holdersour stockholders of record as of Common Stock atJune 21, 2021. Only stockholders of record as of the close of business on August 28, 2017June 21, 2021 are entitled to notice of, and to vote at, the Annual Meeting or any adjournment thereof. At leastMeeting. We will also provide access to our proxy materials over the Internet by June 30, 2021. As a majorityresult of the outstandingNotice and Access Rule, all stockholders receiving the Notice have the ability to access the proxy materials over the Internet and request to receive a paper copy of the proxy materials by mail. Instructions on how to access proxy materials over the Internet or to request a paper copy may be found on the Notice. In addition, the Notice contains instructions on how stockholders may request to receive proxy materials electronically by e-mail.
All stockholders are cordially invited to attend the Annual Meeting virtually.
Your vote is important. Please read the proxy statement and the instructions on the proxy card or voting instruction form whether or not you plan to attend the Annual Meeting, and no matter how many shares of Common Stock entitled to vote, represented either in personyou own, please submit your proxy promptly by telephone or via the Internet, or by completing, dating, and returning your proxy is requiredcard in the envelope provided. Returning your proxy card will not prevent you from voting at the Annual Meeting. It will, however, help to establishassure a quorum forat the Annual Meeting. Meeting and to avoid added proxy solicitation costs. | 2 | | BY ORDER OF THE BOARD OF DIRECTORS | | | | | | /s/ Daniel G. Stokely | | Daniel G. Stokely | | Secretary | | | | June 30, 2021 | | Englewood, Colorado |
| By Order of the Board of Directors | | | | | | /s/ Thomas E. Chilcott, III | | | Thomas E. Chilcott, III | | Secretary | | | | August 29, 2017 | | Englewood, Colorado |
THE BOARD OF DIRECTORS APPRECIATES AND ENCOURAGES YOUR PARTICIPATION IN THE ANNUAL MEETING. WHETHER OR NOT YOU PLAN TO ATTEND THE ANNUAL MEETING, IT IS IMPORTANT THAT YOUR SHARES BE REPRESENTED. ACCORDINGLY, PLEASE SIGN, DATE AND PROMPTLY RETURN THE ENCLOSED PROXY CARD BY MAIL IN THE POSTAGE-PAID ENVELOPE PROVIDED, OR VOTE THESE SHARES BY TELEPHONE AT 1-800-690-6903 OR BY INTERNET AT WWW.PROXYVOTE.COM.WWW.PROXYVOTE.COM. IF YOU ATTEND THE ANNUAL MEETING, YOU MAY REVOKE YOUR PROXY BY VOTING YOUR SHARES WHILE LOGGED IN PERSON.AND PARTICIPATING IN THE LIVE WEBCAST. YOUR PROXY IS REVOCABLE IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN THE ACCOMPANYING PROXY STATEMENT.
AMPIO PHARMACEUTICALS, INC. 373 Inverness Parkway, Suite 200 Englewood, Colorado 80112 PROXY STATEMENT General Information We are furnishing this Proxy Statement in connection with the solicitation of proxies for use at our Annual Meeting of Stockholders (the “Annual Meeting”) to be heldconducted in a virtual format only via live webcast at www.virtualshareholdermeeting.com/AMPE2021 on Saturday, September 16, 2017,August 14, 2021, at 10:9:00 a.m., local time, at the Inverness Hotel, located at 200 Inverness Drive West, Englewood, CO 80112,Mountain Time, and any adjournmentadjournment(s) or postponementpostponement(s) thereof. We intend to mail this proxy statementa Notice of Internet Availability of Proxy Materials to ourall stockholders entitled to vote at the Annual Meeting on or about August 31, 2017. June 30, 2021. Revocability of Proxies Any proxy given pursuant to this solicitation may be revoked by the person giving it at any time before it is exercised by delivering to the attention of Thomas E. Chilcott,Daniel G. Stokely, our Secretary, a written notice of revocation or a properly executed proxy bearing a later date. You may also revoke your proxy by voting again on a later date on the Internet or by telephone (only your latest Internet or telephone proxy submitted prior to the Annual Meeting will be counted), or by attending the virtual meeting and voting your shares while logged in person. and participating in the live webcast (“in person”). Note that beneficial owners must follow their nominee’s instructions to revoke their proxies or vote at the Annual Meeting and, for both stockholders of record and beneficial owners, attendance at the Annual Meeting will not cause your previously granted proxy to be revoked unless you specifically so request or vote online at the Annual Meeting. Solicitation and Voting Procedures This proxy is solicited on behalf of the Board of Directors of Ampio Pharmaceuticals, Inc. (the “Board”). The solicitation of proxies will be conducted by mail and we will bear all costs.costs associated with the solicitation. These costs will include the expense of preparing and mailing proxy materials for the Annual Meeting and reimbursements paid to brokerage firms and others for their expenses incurred in forwarding solicitation material regarding the Annual Meeting to beneficial owners of our Common Stock, par value $0.0001 per share (“Common Stock”Stock”). We may conduct further solicitation personally, telephonically or by facsimileelectronic transmission through our officers, directors, and regular employees, none of whom will receive additional compensation for assisting with the solicitation. A stockholder’s shares can be voted at the Annual Meeting only if the stockholder is presentattends in person or is represented by proxy. We urge any stockholders not planning to attend the Annual Meeting to authorize their proxy in advance. Stockholders may complete their proxies and authorize their votes by proxy over the Internet atwww.proxyvote.comhttp://www.proxyvote.comor by telephone at 1-800-690-6903. Stockholders who complete their proxy electronically over the Internet or by telephone do not need to return a proxy card. Stockholders who hold their shares beneficially in street name through a nominee should follow the instructions they receive from their nominee to vote these shares. The presence at the Annual Meeting of a majority of the outstanding shares of Common Stock entitled to vote, represented either in person or by proxy, will constitute a quorum for the transaction of business at the Annual Meeting. Abstentions from voting on a proposal and broker non-votes will count for purposes of determining a quorum. The close of business on August 28, 2017June 21, 2021 has been fixed as the record date (the “Record Date”“Record Date”) for determining the holders of shares of Common Stock entitled to notice of and to vote at the Annual Meeting. Each share of Common Stock outstanding on the Record Date is entitled to one vote on all matters. As of the Record Date, there were 68,232,409196,847,146 shares of Common Stock outstanding.
Stockholder votes will be tabulated by the persons appointed by the Board of Directors to act as inspectors of election for the Annual Meeting. Shares of Common Stock represented by a properly executed and delivered proxy will be voted at the Annual Meeting and, when the stockholder has given instructions, will be voted in accordance with those instructions. If no instructions on how to withhold or abstainvote are given in a signed proxy, the shares will be voted as follows: (1) FOR each of the nominees listed in Proposal No. 1, and(2) FOR Proposalsthe ratification of the independent auditors in Proposal No. 2, (3) FOR the approval, on an advisory (non-binding) basis, of the compensation of the Company’s named executive officers, as disclosed in this Proxy Statement, and No. 3.(4) in accordance with the discretion of the persons appointed as proxies with respect to any other matters that properly come before the Annual Meeting. If your shares are held in a stock brokerage account or by a bank or other nominee, please see the information below regarding broker’s authority to vote. There are no statutory or contractual rights of appraisal or similar remedies available to those stockholders who dissent with respect to any matter to be acted on at the Annual Meeting. Broker Authority to Vote If your shares are held in a stock brokerage account or by a bank or other nominee, you are considered to be the beneficial owner of shares held in street name. These proxy materials are being forwarded to you by your broker, bank, or other nominee, who is considered to be the holder of record with respect to your shares. As the beneficial owner, you have the right to direct your broker, bank, or other nominee how to vote by filling out the voting instruction form provided by your broker, bank, or other nominee. Telephone and Internet voting options may also be available to beneficial owners. As a beneficial owner, you are also invited to attend the Annual Meeting. You may participate in the virtual webcast of the Annual Meeting by navigating to: www.virtualshareholdermeeting.com/AMPE2021 and entering the control number provided to you on the voting instruction form provided by your broker, bank, or other nominee. You will not be able to attend the Annual Meeting without your control number. If your shares are held in street name, and if you provide voting instructions to your broker, bank, or other nominee, your shares must be voted as you direct. If you do not furnish voting instructions to your broker, bank, or other nominee, one of two things can happen, depending upon whether a proposal is “routine.” Under the rules that govern brokers, banks, and other nominees that have record ownership of shares beneficially owned by their clients, brokers, banks, and other nominees have discretion to cast votes only on routine matters, such as the ratification of the appointment of independent registered public accounting firms, without voting instructions from their clients. Brokers, banks, and other nominees are not permitted, however, to cast votes on “non-routine” matters without such voting instructions, such as the election of directors. A “broker non-vote” occurs when a beneficial owner has not provided voting instructions and the broker, bank, or other nominee holding shares for the beneficial owner does not vote on a particular proposal because the broker, bank, or other nominee does not have discretionary voting power for that proposal. Proposal No. 2 is considered a “routine” proposal for this purpose. All other proposals listed in this Proxy Statement are considered “non-routine,” and your broker, bank, or other nominee will not have discretion to vote on these proposals. Corporate Information and History Our 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 atwww.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 Proxy Statement. You can review filings we make with the Securities and Exchange Commission (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 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”“Exchange Act”). Our Code of Business Conduct and Ethics and the charters of our Nominating and Governance Committee, Audit Committee, Compensation Committee and CompensationDisclosure Committee of the Board of Directors may be accessed within the Investor Relations“Investors – Corporate Governance” section of our website. website at www.ampiopharma.com. Unless otherwise indicated or unless the context requires otherwise, all references in this Proxy Statement to “Ampio Pharmaceuticals, Inc.,” “Ampio,” the “Company,” “we,” “us,” “our,” or similar references, mean Ampio Pharmaceuticals, Inc. and its subsidiaries on a consolidated basis. References to “BioSciences” in this Proxy Statement mean DMI BioSciences, Inc., now a wholly-owned subsidiary of ours. References to “Life Sciences” in this Proxy Statement mean DMI Life Sciences, Inc., which is our predecessor for accounting purposes and a wholly-owned subsidiary of ours. Life Sciences was formed in December 2008 and commenced operations when it acquired certain assets of BioSciences in April 2009. In March 2010, Life Sciences merged with a subsidiary of Chay Enterprises, Inc., a publicly traded Colorado corporation. Immediately after the merger, Chay Enterprises changed its name to Ampio Pharmaceuticals, Inc., and reincorporated in Delaware. We acquired BioSciences, now a wholly-owned subsidiary of ours, in March 2011. References to “Aytu” mean Aytu BioScience, Inc., a former majority-owned subsidiary of ours. Aytu was incorporated as Rosewind Corporation in 2002. In April 2015, Luoxis Diagnostics, Inc., a previous subsidiary of ours that was formed to focus on the development and commercialization of the Oxidation Reduction Potential (ORP) technology platform, and Vyrix Pharmaceuticals, Inc., a previous subsidiary of ours that was formed to focus on the development and commercialization of late-stage prescription pharmaceuticals to improve men’s health and quality of life, merged with subsidiaries of Rosewind and then with Rosewind itself, with Rosewind as the surviving corporation. In June 2015 Rosewind reincorporated as a Delaware corporation and changed its name to Aytu BioScience, Inc. In January 2016, we completed the spin-off of Aytu BioScience, Inc. by distributing a majority of our shares of common stock of Aytu to our shareholders on a pro rata basis, which changed our ownership from 81.5% to 8.6% of Aytu’s outstanding shares on that date. As of June 30, 2017, our ownership has been reduced to less than 1.0%.5
PROPOSAL NO. 1 ELECTION OF DIRECTORS Overview The total authorized number of directors of the Company is currently fixed at five directors. Our Amended and Restated Bylaws (the “Bylaws”) provide that directors are to be elected at each annual meeting of stockholders for a term of one year, orand that each director will serve until his or her successor is duly elected and qualified or until his or her death, resignation, or removal. The current directors of the Company are Michael Macaluso, Chairman, David Bar-Or, M.D., Philip H. Coelho, Richard B. Giles and David R. Stevens, Ph.D. Each of the current directors has been nominated for electionre-election to the Board of Directors at the Annual Meeting, as described in further detail below and elsewhere in this Proxy Statement. Our Certificate of Incorporation, as amended (the “Certificate of Incorporation”), provides that our Board of Directors may be classified into three classes of directors of approximately equal size upon a date selected by the Board of Directors. The Board of Directors has not taken such action to date. All nominees for election as directors at the Annual Meeting have indicated their willingness to serve if elected. Should any nominee become unavailable for election at the Annual Meeting, the persons named on the enclosed proxy as proxy holders may vote all proxies given in response to this solicitation for the election of a substitute nominee chosen by our Board of Directors. Nomination of Directors The Nominating and Governance Committee, which acts as the nominating committee of our Board of Directors, reviews and recommends to the Board of Directors potential nominees for election to the Board of Directors. In reviewing potential nominees, the Nominating and Governance Committee considers the qualifications described below under the caption “Board of Directors and Committees; Corporate Governance.Governance—Director Nominations and Stockholder Communications.” After reviewing the qualifications of potential Board of Directorsdirector candidates, the Nominating and Governance Committee presents its recommendations to the Board, which selects the final director nominees. The Nominating and Governance Committee recommended each of the nominees for director identified in this Proxy Statement. We did not pay any fees to any third parties to identify or assist in identifying or evaluating nominees for election at the Annual Meeting. Information Regarding Director Nominees The following table sets forth the information for each of the nominees for director identified in this Proxy Statement:Statement, which includes the year each was first elected a director of the Company, their respective ages as of the date of this Proxy Statement and the positions currently held with our Company: Name | | Director Since | | Age | | Position | Name |
| Director Since |
| Age |
| Position | Michael Macaluso (4) | | March 2010 | | 6669 | | Chief Executive Officer (“CEO”) and Chairman of the Board | David Bar-Or, M.D. | | March 2010 | | 6872 | | Chief Scientific Officer and Director | Philip H. Coelho (1)(2)(3)(4) | | April 2010 | | 7377 | | Director | Richard B. Giles (1)(2)(3)(4) | | August 2010 | | 6871 | | Director | David R. Stevens, Ph.D. (1)(2)(3)(4) | | June 2011 | | 6872 | | Director |
| (1) | Member of our Audit Committee. |
| (2) | Member of our Compensation Committee. |
| (3) | Member of our Nominating and Governance Committee. |
| (4) | Member of our Disclosure Committee. |
Additional information about each of the nominees for election to the Board of Directors is as follows: Michael Macalusofounded DMI Life Sciences Inc. and was a member of the board of directors of DMI Life Sciences Inc., our predecessor, from its inception until the merger of DMI Life Sciences, Inc. with Chay Acquisitions, Inc., a wholly owned subsidiary of Chay Enterprises, Inc. (together “Chay Enterprises”). Mr. Macaluso has been a member of our Board since the merger with Chay Enterprises in March 2010, our CEO since January 2012, and the Chairman of our Board since May 2010. In addition, Mr. Macaluso has been a member of the board of directors of Life Sciences, our predecessor,NASDAQ-listed Aytu BioScience’s (AYTU) since its inception. Mr. Macaluso has also been a member of our Board of Directors since the merger with Chay Enterprises in March 2010 and our Chief Executive Officer since January 9, 2012.April 2015. Mr. Macaluso was appointed presidentPresident of Isolagen, Inc. (AMEX: ILE)(ILE), which has since been acquired, and served in that position from June 2001 to August 2001, when he was appointed chief executive officer.CEO. In June 2003, Mr. Macaluso was re-appointed as presidentPresident of Isolagen, Inc. and served as both chief executive officerCEO and presidentPresident until September 2004. Mr. Macaluso also served on the board of directors of Isolagen, Inc. from June 2001 until April 2005. From October 1998 until June 2001, Mr. Macaluso was the owner of Page International Communications, a manufacturing business. Mr. Macaluso was a founder and principal of International Printing and Publishing, a position Mr. Macaluso held from 1989 until 1997, when he sold that business to a private equity firm. Mr. Macaluso’s experience in executive management and marketing within the pharmaceutical industry, monetizing company opportunities and corporate finance led to the conclusion of our Board of Directors that he should serve as a director of our company in light of our business and structure. Company. David Bar-Or, M.D.,, has served as a member of our chief scientific officerBoard since March 2010. Dr. Bar-Or previously served as our Chief Scientific Officer (“CSO”) from March 2010 until September 2018. Dr. Bar-Or also served as our chairmanChairman of the Board from March 2010 until May 2010. From April 2009 until March 2010, he served as chairmanChairman of the boardBoard and chief scientific officerCSO of DMI Life Sciences.Sciences, Inc. (our predecessor). Dr. Bar-Or is currently the owner of Trauma Research, LLC and the director of Trauma Research at Swedish Medical Center, Englewood, Colorado, St. Anthony’s Hospital, Lakewood, Colorado, Penrose Hospital, in Colorado Springs, Colorado, Research Medical Center, in Kansas City, Missouri, Wesley Medical Center, Wichita, Kansas and The Medical Center of Plano, Plano, Texas. He is also the Director of stoke research at Swedish Medical Center comprehensive stroke center. Dr. Bar-Or is the founder of Ampio Pharmaceuticals, Inc. Dr. Bar-Or isand was principally responsible for all patented and proprietary technologies, which were acquired by usthe Company from DMI BioSciences, in April 2009 andInc. He was also primarily responsible for allour patents issued and applied for since then, having been issuedawarded over 270500 patents and having filed or co-filedbeen an inventor on almost 120 patent applications.applications over the life of the Company. Dr. Bar-Or has authored or co-authored over 145200 peer-reviewed journal articles and several book chapters. Dr. Bar-Or is a reviewer for over 45 peer reviewed scientific and clinical journals. He is the recipient of the Gustav Levi Award from the Mount Sinai Hospital, New York, New York, the Kornfeld Award for an outstanding MD Thesis, the Outstanding Resident Research Award from the Denver General Hospital, and the Outstanding Clinician Award from the Denver General Medical Emergency Resident Program. Dr. Bar-Or received his medical degree from The Hebrew University, Hadassah Medical School, Jerusalem, Israel, following which he completed a biochemistry fellowship at Hadassah Hospital under Professor Alisa Gutman and undertook post-graduate workresidency training at Denver Health Medical Center, specializing in emergency medicine, a discipline in which he is board certified. He completed the first research fellowship in Emergency Medicine at Denver Health Medical Center under the direction of Professor Peter Rosen.Center. Among other experience, qualifications, attributes and skills, Dr. Bar-Or’s medical training, extensive involvement, and inventions in researching and developing our product candidates,Ampion®, and leadership role in his hospital affiliations led to the conclusion of our Board of Directors that he should serve as a director of our company in light of our business and structure. Company. Philip H. Coelhohas served as a member of our Board of Directors since April 2010. Mr. Coelho is the Co-Founder and CTOChief Technology Officer of SynGen Inc.ThermoGenesis Corp., a firm inventinghe founded in 1986, retired from in 2007, and commercializingrejoined in 2017, which invents and commercializes products that harvestisolate, purify, and cryopreserve stem, progenitor and progenitorimmune cells derived from a donor or the patient’s own body to treat human disease. Prior to foundingrejoining ThermoGenesis Corp., Mr. Coelho founded SynGen Inc. in October 2009, and merged that company with ThermoGenesis Corp. in 2017. Mr. Coelho was the President and CEO of PHC Medical,PHCMedical, Inc., a consulting firm, from August 2008 through October 2009. From August 2007 through May 2008, Mr. Coelho served as the Chief Technology Architect of ThermoGenesis Corp., a medical products company he founded in 1986 that focused on the regenerative medicine market. From 1989 through July 2007, he was Chairman and Chief Executive OfficerCEO of ThermoGenesis Corp. Mr. Coelho served as Vice President of Research & Development of ThermoGenesis from 1986 through 1989. Mr. Coelho has been in the senior management of high technology consumer electronic or medical device companies for over 30 years. He was President of Castleton Inc. from 1982 to 1986, and President of ESS Inc. from 1971 to 1982. Mr. Coelho has also servesserved as a member of the board of directors of NASDAQ-listed company, Catalyst Pharmaceuticals Partners, Inc. (CPRX) (sincesince October 2002),2002, and previously served as a member of the Boardboard of Directorsdirectors of NASDAQ-listed Mediware Information Systems, Inc. (MEDW) (fromfrom December 2001 until July 2006, and commencing again in May 2008 until it was sold in December 2012).2012. Mr. Coelho received a B.S. degree in thermodynamic and mechanical engineering from the University of California,
Davis and has been awarded more than 3050 U.S. patents in the areas of cell cryopreservation, cryogenic robotics, cell selection, blood protein harvesting, surgical homeostasis and surgical homeostasis.lateral flow immunotherapy devices. Mr. Coelho’s long tenure as a chief executive officerCEO of a public medical device company, as director of a public pharmaceutical company, prior and current public company board experience, and knowledge of corporate finance and governance as an executive and director, as well as his demonstrated success in developing patented technologies, led to the conclusion of our Board of Directors that he should serve as a director of our company in light of our business and structure.Company. Richard B. Giles, CPA, has served as a member of our Board of Directors since August 2010. Mr. Giles is the Chief Financial OfficerCFO and Treasurer of Ludvik Electric Co., an electrical contractor headquartered in Lakewood, Colorado, a position he has held since 1985. Ludvik Electric Co. is a private electrical contractor with 2016 revenues of over $70 million that has completed electrical contracting projects throughout the United States, South Africa, and Germany. As CFO and Treasurer of Ludvik Electric Co., Mr. Giles oversees accounting, risk management, financial planning and analysis, financial reporting, regulatory compliance, and tax-related accounting functions. He serves also as the trustee of Ludvik Electric Co.’s 401(k) plan. Prior to joining Ludvik Electric Co., Mr. Giles was an audit partnerAudit Partner for three years with Higgins Meritt & Company, then a Denver, Colorado CPA firm, and during the preceding nine years he was an audit managerAudit Manager and a member of the audit staff of Price Waterhouse, one of the legacy firms which now comprisescomprise PricewaterhouseCoopers. While with Price Waterhouse, Mr. Giles participated in a number of public company audits, including one for a leading computer manufacturer. Mr. Giles received a B.S. degree in accounting from the University of Northern Colorado. He is a member of the American Institute of Certified Public Accountants, the Colorado Society of Certified Public Accountants, and the Construction Financial Management Association. Mr. Giles’ experience in executive financial management, accounting and financial reporting, and corporate accounting and internal controls led to the conclusion of our Board of Directors that he should serve as a director of our company in light of our business and structure. Company. David R. Stevens, Ph.D., has served as a member of our Board of Directors since June 2011. Dr. Stevens is currentlyhas worked in the U.S. Food and Drug Administration regulated life science industry since 1978. He has also been a consulting research pathologist since December 2006 for Premier Laboratory, LLC. He has been a board member of Cetya, Inc., a privately-held development stage pharmaceutical company and of Micro-Imaging Solutions, LLC, a private medical device company. since December 2013. He has served on the boards of several other public and private life science companies, including Cedus, Inc., (2006-2014)Micro-Imaging Solutions, LLC (from 2007 to 2018), Poniard Pharmaceuticals, Inc. (2006-2012)(from 2004 to 2013), Aqua Bounty Technologies, Inc. (2002-2012)(from 2002 to 2012), Advanced Cosmetic Intervention, Inc. (from 2006 to 2011) and Smart Drug Systems, Inc. (1999-2006)(from 1999 to 2006), and was an advisor to Bay City Capital from 1999-2006.(from 1999 to 2006). Dr. Stevens was previously President and CEO of Deprenyl Animal Health, Inc., a public veterinary pharmaceutical company, from 1990 to 1998, and Vice President, Research and Development, of Agrion Corp., a private biotechnology company, from 1986 to 1988. He began his career in pharmaceutical research and development at the former Upjohn Company, where he contributed to the preclinical evaluation of Xanax and Halcion. Dr. Stevens received B.S. and D.V.M. degrees from Washington State University, and a Ph.D. in comparative pathology from the University of California, Davis. He is a Diplomate of the American College of Veterinary Pathologists. Dr. Stevens has worked in the pharmaceutical and biotechnology industries since 1978. Dr. Stevens’ experience in executive management in the pharmaceutical industry and knowledge of the medical device industry led to the conclusion of our Board of Directors that he should serve as a director of our company in light of our business and structure. Company. Required Vote and Recommendation of Board of Directors Under the Company’s Certificate of Incorporation, as amended, and the Company’s Bylaws, directors are elected by a plurality vote. Any sharesIf you sign the enclosed proxy and deliver it to the Company, your proxy will be voted FOR all director nominees, unless you specifically indicate on the proxy that you are not voted, whether by abstention,withholding a vote from one or more of the nominees. Abstentions and broker non-votes or otherwise, will not affecthave no effect on the election of directors.our director nominees. Holders of proxies solicited by this Proxy Statement will vote the proxies received by them as directed on the proxy card or, if no direction is made, then FOR the election of the nominees named above.
THE BOARD OF DIRECTORS RECOMMENDS A VOTEFOREACH OF THE NOMINEES
IDENTIFIED ABOVE.
PROPOSAL NO. 2 RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM The Audit Committee of our Board of Directors has selected EKS&H LLLP (“EKS&H”)approved the engagement of Moss Adams LLP as ourthe Company’s independent registered public accounting firm to audit and report upon our financial statements for the fiscal year ending December 31, 2017 and is2021. We are submitting this matter to our stockholders for their ratification. A representative of EKS&HMoss Adams LLP is expected to be present at the Annual Meeting to respond to appropriate questions. The representativequestions and will have an opportunity to make a statement. On July 10, 2019, the Audit Committee approved the engagement of Moss Adams LLP as the Company’s independent registered public accounting firm for the Company’s fiscal year ending December 31, 2019, which was subsequently approved by the stockholders at our 2019 Annual Meeting of Stockholders on December 14, 2019. Moss Adams LLP has served as the Company’s independent registered public accounting firm since July 10, 2019. During the fiscal years ended December 31, 2018 and 2017, and the subsequent interim period through July 10, 2019, neither the Company nor anyone on its behalf had consulted with Moss Adams LLP regarding: (i) the application of accounting principles to a specific transaction, either completed or proposed, or the type of audit opinion that might be rendered on the Company’s financial statements, and neither a written report or oral advice was provided to the Company that Moss Adams LLP concluded was an important factor considered by the Company in reaching a decision as to any accounting, auditing or financial reporting issue, (ii) any matter that was the subject of a disagreement within the meaning of Item 304(a)(1)(iv) of Regulation S-K, or (iii) any reportable event within the meaning of Item 304(a)(1)(v) of Regulation S-K. In conjunction with the appointment of Moss Adams LLP on July 10, 2019, Plante & Moran PLLC (“Plante Moran”) notified the Company of its resignation as the Company’s independent registered public accounting firm effective July 10, 2019. As previously reported, on October 1, 2018, EKS&H LLLP (“EKS&H”), the Company’s prior independent registered public accounting firm, resigned in connection with EKS&H’s combination with Plante Moran. Plante Moran served as the Company’s registered public accounting from October 1, 2018 to July 10, 2019. Neither the audit report of Plante Moran on the Company’s consolidated financial statements for the fiscal year ended December 31, 2018 nor EKS&H’s audit report on the Company’s consolidated financial statements for the year ended December 31, 2017 contained an adverse opinion or disclaimer of opinion or, was qualified or modified as to uncertainty, audit scope or accounting principles except that the audit reports for the fiscal years ended December 31, 2018 and 2017 each contained an explanatory paragraph indicating that there was substantial doubt about the ability of the Company to continue as a going concern. During the Company’s fiscal years ended December 31, 2018 and 2017, and the subsequent interim periods through July 10, 2019, there were no disagreements within the meaning of Item 304(a)(1)(iv) of Regulation S-K with Plante Moran (or EKS&H) on any matters of accounting principles or practices, financial statement disclosure or auditing scope and will be ableprocedure which, if not resolved to respondthe satisfaction of Plante Moran (or EKS&H), would have caused Plante Moran (or EKS&H) to appropriate questions.make reference to the subject matter in connection with its reports, and there were no reportable events as defined in Item 304(a)(1)(v) of Regulation S-K.
Fees for Independent Registered Public Accounting Firm The following table presents aggregate fees accrued for professional services rendered by EKS&Hour independent registered public accounting firms, Moss Adams LLP for the audit of our annual consolidated financial statements, audit-related matters and taxes for the years ended December 31, 2016 and 2015, respectively. | | | Year Ended December 31 | | | | | 2016 | | | 2015 | | | Audit Fees (1) | | $ | 130,000 | | | $ | 179,000 | | | Audit-related fees (2) | | | 13,000 | | | | 10,000 | | | Tax fees (3) | | | 39,000 | | | | 67,000 | | | Total fees | | $ | 182,000 | | | $ | 256,000 | |
respective periods indicated: | | | | | | | | | Year Ended December 31, | | | 2020 | | 2019 | | | | | | | | Audit fees (1) | | $ | 273,000 | | $ | 212,000 | Audit-related fees (2) | | | — | | | — | Tax fees (3) | | | — | | | — | Total fees | | $ | 273,000 | | $ | 212,000 |
| (1) | Audit fees are comprisedincludes fees related to the audit of our annual financial statements; the review of our quarterly financial statements; comfort letters, consents, and assistance with and review of documents filed with the SEC; and financial reporting consultation and research work billed as audit fees and quarterly review fees.or necessary to comply with the standards of the Public Company Accounting Oversight Board (United States). |
| (2) | Audit-related fees for fiscal years 2016 and 2015 are comprised of feeswould include employee benefit plan audits, due diligence related to registration statementsmergers and acquisitions, accounting consultations and audits in connection with acquisitions, attest services related to financial reporting that are not required by statute or regulation and consultation fees.concerning financial accounting and reporting standards. The Company did not incur expenses for audit-related services for the years ended December 31, 2020 or 2019. |
| (3) | Tax fees are comprised of federal and state services related to tax compliance, preparationconsulting, and consultation fees.preparation. The Company did not incur expenses for tax services from Moss Adams LLP for the years ended December 31, 2020 or 2019. |
Policy on Audit Committee Pre-Approval of Services of Independent Registered Public Accounting Firm Our Audit Committee has responsibility for appointing, setting compensation, and overseeing the work of the independent registered public accounting firm. In recognition of this responsibility, the Audit Committee has established a policy to pre-approve all audit and permissible non-audit services provided by the independent registered public accounting firm. Prior to the engagement of the independent registered public accounting firm for the currentfollowing year’s audit, management will submit to the Audit Committee afor approval an engagement letter which provides the description and estimated cost of services expected to be rendered during that year for each of following four categories of services: | (1) | Audit services include fees for services that generally only the auditor can reasonably provide, such as statutory audits required domestically and internationally (including statutory audits required by insurance companies for purposes of state law); comfort letters; consents; assistance with and review of documents filed with the SEC; section 404 attestation services; other attest services that generally only the auditor can provide; work done by tax professionals for the audit or quarterly review; and accounting consultations billed as audit services, as well as other accounting and financial reporting consultation and research work necessary to comply with the standards of the PCAOB. |
| (2) | Audit-related services include, but are not limited to, employee benefit plan audits, due diligence related to mergers and acquisitions, accounting consultations and audits in connection with acquisitions, internal control reviews, attest services related to financial reporting that are not required by statute or regulation and consultation concerning financial accounting and reporting standards. |
| (3) | Tax services consist principally of assistance with federal and state tax compliance and reporting, as well as certain tax planning consultations. |
| (4) | Other services are those associated with services not captured in the other categories. We generally do not request such services from our independent auditor. |
10 Audit services include audit work performed in the audit of the annual financial statements, review of quarterly financial statements, reading of annual, quarterly and current reports, as well as work that generally only the independent auditor can reasonably be expected to provide.
Audit-related services are for assurance and related services that are traditionally performed by the independent auditor, including the provision of consents and comfort letters in connection with the filing of registration statements, due diligence related to mergers and acquisitions and special procedures required to meet certain regulatory requirements.
Tax services consist principally of assistance with tax compliance and reporting, as well as certain tax planning consultations.
Other services are those associated with services not captured in the other categories. We generally do not request such services from our independent auditor.
Prior to the engagement of the independent registered public accounting firm, the Audit Committee pre-approves these services by category of service.service and estimated cost as further noted in the engagement letter. The fees are budgeted as part of the Company’s annual/periodic budgeting and forecasting process, and the Audit Committee requires the independent registered public accounting firm and management to report actual fees versus the budget periodically throughout the year by category of service. During the year, circumstances may arise when it may become necessary to engage the independent registered public accounting firm for additional services not contemplated in the original pre-approval. In those instances, the Audit Committee requires specific pre-approval before engaging the independent registered public accounting firm. firm for such services. The Audit Committee may delegate pre-approval authority to one or more of its members. The member to whom such authority is delegated must report, for informational purposes only, any pre-approval decisions to the Audit Committee at its next scheduled meeting. All of the services of Moss Adams LLP described above were pre-approved by the Audit Committee in advance of such services being provided. Required Vote and Recommendation of Board of Directors The affirmative vote of the holders of a majority of the shares present, in person, by remote communication, or represented by proxy, and entitled to vote on the proposal at the Annual Meeting is required to ratify the appointment of the independent registered public accounting firm. Abstentions will have the same effect as voting against the proposal and broker non-votes will have no effect upon the proposal. If our stockholders do not ratify the selection of EKS&H, our Board of Directors will consider other independent auditors. THE BOARD OF DIRECTORS RECOMMENDS A VOTEFOR RATIFICATION OF THE APPOINTMENT OF EKS&H LLLP AS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE YEAR ENDING DECEMBER 31, 2017.
PROPOSAL NO. 3
APPROVAL OF AMENDMENT TO CERTIFICATE OF INCORPORATION TO INCREASE AUTHORIZED NUMBER OF SHARES OF COMMON STOCK
Overview
Our Certificate of Incorporation currently authorizes the issuance of 100,000,000 shares of common stock, par value $0.0001 per share. On August 7, 2017, the Board of Directors unanimously adopted a resolution approving, and recommending that our stockholders approve, an amendment to Article IV, Section 1 of our Certificate of Incorporation to increase the number of shares of common stock that we are authorized to issue to 200,000,000 and also to increase the total number of shares of capital stock that we are authorized to issue to reflect such increase in our authorized common stock. The Board of Directors believes that the proposed amendment to increase the number of authorized shares of common stock is necessary to give us flexibility to issue shares of common stock for future corporate needs. Accordingly, the Board of Directors has declared the proposed amendment to be advisable and in the best interests of the Company and its stockholders and is submitting the proposed amendment to a vote of our stockholders.
As of August 2, 2017, there were 68,232,409 shares of common stock outstanding. In addition to these shares, as of August 2, 2017, there were (i) 6,942,498 shares of common stock reserved for issuance under our 2010 Stock and Option Award Plan, and (ii) 17,518,040 shares of common stock reserved for issuance upon the exercise of our outstanding warrants to purchase shares of our common stock. Accordingly, as of August 2, 2017, we had only 7,307,053 shares of common stock available for other corporate purposes.
Text of the Proposed Amendment
We propose to amend Article IV, Section 1 of our Certification of Incorporation so that it would state in its entirety as follows:
“Section 1.Authorized Shares. The aggregate number of shares which the Corporation shall have authority to issue is 210,000,000; of which 10,000,000 shares with a par value of $0.0001 shall be designated Preferred Stock and 200,000,000 shares with a par value of $0.0001 shall be designated Common Stock.”
The only substantive changes that would be made to Article IV, Section 1 of our Certification of Incorporation, as currently in effect, would be to increase the number of shares of common stock that we may issue from 100,000,000 shares to 200,000,000 shares and to reflect a corresponding increase in the aggregate number of shares of capital stock that may be issued from 110,000,000 to 210,000,000 shares.
Purpose of the Proposed Amendment
The Board of Directors is recommending the proposed amendment to increase the number of authorized shares of common stock to give us flexibility to issue shares of common stock for future corporate needs. The Board of Directors believes that additional authorized shares of common stock would give us the necessary flexibility to issue shares for various corporate purposes, including, in particular, capital-raising or financing transactions and enable us to take timely advantage of market conditions and opportunities. Other corporate purposes for which the additional authorized shares could be used include, but are not limited to, potential strategic transactions, including mergers, acquisitions, and other business combinations; grants and awards under equity compensation plans; stock splits and stock dividends; and other general corporate purpose transactions. As a general matter, we would be able to issue the additional authorized shares of common stock at our discretion from time to time, subject to and as limited by, rules or listing requirements of the NYSE MKT or any other then applicable securities exchange, and without further action or approval of the Company’s stockholders. The discretion of the Board of Directors, however, would be subject to any other applicable rules and regulations in the case of any particular issuance or reservation for issuance that might require our stockholders to approve such transaction. The Board of Directors reviews and evaluates potential capital raising activities, transactions and other corporate actions on an on-going basis to determine if such actions would be in the best interests of the Company and its stockholders. In light of our current cash balance and anticipated burn rate going forward, the Board of Directors is currently evaluating potential financing alternatives, including the possible potential issuance of common stock, which may include the additional shares of common stock that would be authorized by the proposed amendment. However, we have no commitments, arrangements, understandings or agreements, written or otherwise, to issue any additional shares of common stock.
Potential Effects of the Proposed Amendment
If the proposed amendment is approved by our stockholders, the additional authorized shares of common stock would have rights identical to our currently outstanding common stock. Our Certificate of Incorporation also currently authorizes the issuance of 10,000,000 shares of preferred stock, none of which are issued or outstanding. The proposed amendment to the Certificate of Incorporation would not change the authorized number of shares of preferred stock.
Future issuances of shares of common stock or securities convertible into shares of common stock could have a dilutive effect on our earnings per share, book value per share and the voting interest and power of current stockholders since holders of common stock are not entitled to preemptive rights.
Securities and Exchange Commission rules require disclosure of the possible anti-takeover effects of an increase in authorized capital stock and other charter and bylaw provisions that could have an anti-takeover effect. Although we have not proposed the increase in the number of authorized shares of common stock with the intent of using the additional shares to prevent or discourage any actual or threatened takeover of the Company, under certain circumstances, such shares could have an anti-takeover effect. The additional shares could be issued to dilute the stock ownership or voting rights of persons seeking to obtain control of the Company or could be issued to persons allied with the Board of Directors or management and thereby have the effect of making it more difficult to remove directors or members of management by diluting the stock ownership or voting rights of persons seeking to effect such a removal. Accordingly, if the proposed amendment is approved, the additional shares of authorized common stock may render more difficult or discourage a merger, tender offer or proxy contest, the assumption of control by a holder of a large block of common stock, or the replacement or removal of the Board of Directors or management.
Timing of the Proposed Amendment
If the proposed amendment to increase the number of authorized shares of common stock is approved by our stockholders, the amendment will become effective immediately upon the filing of a Certificate of Amendment to the Company’s Certificate of Incorporation with the Secretary of State of the State of Delaware, which we expect to file promptly after the Annual Meeting. If the proposed amendment is not approved by our stockholders, the number of authorized shares of common stock will remain unchanged.
Required Vote and Recommendation of Board of Directors
Under our Certificate of Incorporation, as amended, approval of this proposal requires the affirmative vote of a majority of the voting power of the Company. Any shares that are not voted, whether by abstention, broker non-votes or otherwise, will have the same effect as votes “against” this proposal. Because this proposal is a “non-routine” matter, brokers are not permitted to vote shares that they hold in “street name” and for which they do not receive instructions.
Holders of proxies solicited by this Proxy Statement will vote the proxies received by them as directed on the proxy card or, if no direction is made, then FOR approval of this proposal. Abstentions will have the same effect as voting against the proposal. Proposal No. 2 is considered “routine”; therefore, we do not expect any broker non-votes for this proposal. If our stockholders do not ratify the selection of Moss Adams LLP, our Board of Directors will consider other independent auditors. THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR RATIFICATION OF THE APPOINTMENT
OF MOSS ADAMS LLP AS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR
THE YEAR ENDING DECEMBER 31, 2021. PROPOSAL NO. 3 ADVISORY VOTE ON EXECUTIVE COMPENSATION The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) requires that stockholders have the opportunity to cast an advisory (non-binding) vote on executive compensation at least once every three years (a so-called “say-on-pay” vote). The advisory vote on executive compensation is a non-binding vote on the compensation of the Company’s named executive officers, as described in the “Executive Compensation” section of this Proxy Statement, including the tabular disclosures regarding such compensation and the accompanying narrative disclosure. The advisory vote on executive compensation is not a vote on the Company’s general compensation policies, compensation of the Company’s Board of Directors, or the Company’s compensation policies as they relate to risk management. It is expected that the next advisory vote on executive compensation will occur at the 2024 Annual Meeting of Stockholders. Our philosophy in setting compensation policies for executive officers has two fundamental objectives: (i) to retain a highly skilled team of executives and (ii) to align our executives’ interests with those of our stockholders by motivating our executives to increase stockholder value on both an annual and longer-term basis. The Compensation Committee believes that executive compensation should be directly linked both to continuous improvements in corporate performance (so-called “pay for performance”) and accomplishments that are expected to increase stockholder value. The vote on this Proposal No. 3 is advisory, and therefore not binding on the Company, the Board of Directors, or our Compensation Committee. However, our Board of Directors, including our Compensation Committee, values the opinions of our stockholders and, to the extent there is any significant vote against the executive officer compensation as
disclosed in this Proxy Statement, we will consider our stockholders’ concerns and evaluate what actions may be appropriate to address those concerns. In accordance with the requirements of Section 14A of the Exchange Act and the related rules of the SEC, stockholders will be asked at the Annual Meeting to approve the following resolution pursuant to this Proposal No. 3: “RESOLVED, that the compensation paid to the Company’s named executive officers, as disclosed in the Company’s proxy statement pursuant to Item 402 of Regulation S-K, including the related tabular disclosures and narrative discussion, is hereby approved.” Required Vote and Recommendation of Board of Directors The affirmative vote of the holders of a majority of the shares present, in person, by remote communication, or represented by proxy, and entitled to vote on the proposal at the Annual Meeting is required to approve this proposal. Abstentions will have the same effect as voting against the proposal and broker non-votes will have no effect upon the proposal. THE BOARD OF DIRECTORS RECOMMENDS A VOTEFOR APPROVAL OF THE PROPOSED AMENDMENT TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK DESCRIBED ABOVE. PROPOSAL NO. 3 BOARD OF DIRECTORS AND COMMITTEES; CORPORATE GOVERNANCE Meetings of the Board of Directors During the year ended December 31, 2016,2020, there were held (i) six meetings of the Board, of Directors, (ii) four meetings of the Audit Committee, (iii) elevensix meetings of the Compensation Committee, (iv) two meetings of the Nominating and (iv)Governance Committee, and (v) one meeting of the Nominating and GovernanceDisclosure Committee. No incumbent director attended fewer than seventy-five percent (75%) of the aggregate of (1)(a) the total number of meetings of the Board, and (2)(b) the total number of meetings held by all committees of the Board of Directors during the period that such director served. Committees of the Board Our Board of Directors has an Audit Committee, a Compensation Committee, and a Nominating and Governance Committee, and a Disclosure Committee, each of which has the composition and the responsibilities described below. The Audit Committee, Compensation Committee, and Nominating and Governance Committee, alland Disclosure Committee operate under separate charters approved by our Board of Directors, whichBoard. The charters for each committee are available on our website. website at www.ampiopharma.com. Audit CommitteeCommittee.. Our Audit Committee, established in accordance with Section 3(a)(58)(A) of the Exchange Act, oversees our corporate accounting and financial reporting process andprocess. This committee also assists theour Board of Directors in monitoring our financial systems and our legal and regulatory compliance. Our Audit Committee is responsible for, among other things: | ·● | selecting and hiringengaging our independent auditors; |
| | | | · ● | appointing, compensating and overseeing the work of our independent auditors; |
| | | | ·● | approving engagements of the independent auditors to render any audit or permissible non-audit services; |
| | | | · ● | reviewing the qualifications and independence of the independent auditors; |
| | | | ·● | monitoring the rotation of partners of the independent auditors on our engagement team, as required by law; |
| ● | recommending inclusion of the audited financial statements in the Company’s Annual Report on Form 10-K and providing the Report of the Audit Committee to be included in the Company’s annual proxy statement; |
| · ● | reviewing our financial statements and reviewing our critical accounting policies and estimates; |
| | | | ·● | reviewing the adequacy and effectiveness of our internal controls over financial reporting; and |
| | | | · ● | reviewing and discussing with management, and the independent auditors and any internal auditors the results of our annual audit, reviews of our quarterly financial statements and our publicly filed reports.reports; and |
| ● | reviewing related party transactions. |
The members of our Audit Committee are Messrs. Giles, Coelho and Dr. Stevens. Mr. Giles is our Audit Committee chairmanChairman and was appointed to our Audit Committee onin August 10, 2010. Our Board of Directors has determined that each member of the Audit Committee meets the financial literacy requirements of the national securities exchanges and the SEC, and Mr. Giles qualifies as our Audit Committee financial expert as defined under SEC rules and regulations. Our Board of Directors has concluded that the composition of our Audit Committee meets the requirements for independence under the current requirements of the NYSE MKT LLCAmerican stock exchange (“NYSE American”) and SEC rules and regulations. We believe that the functioningfunction of our Audit Committee complies with the applicable requirements of SEC rules and regulations, and applicable requirements of the NYSE MKT LLC. American. Compensation CommitteeCommittee. . Our Compensation Committee oversees our corporate compensation policies, plans and programs. The Compensation Committee is responsible for, among other things: | ·● | reviewing and recommendingapproving policies, plans and programs relating to compensation and benefits of our directors, officers and employees; |
| | | | · | reviewing and recommending compensation and the corporate goals and objectives relevant to compensation of our chief executive officer; | | | | | ·● | reviewing and approving compensation, and corporate goals, and objectives relevant to compensation for our CEO and for executive officers other than our chief executive officer;CEO; |
| | | | · ● | evaluating the performance of our executive officers in light ofconsidering established goals and objectives; |
| ● | reviewing the executive compensation disclosure that is prepared by the Company for inclusion in the Company’s annual proxy statement; |
| ·● | developing in consultation with our Boardassessing how the Company’s compensation programs encourage the taking of Directors and periodically reviewing a succession plan for our chief executive officer;enterprise or other risks that may bear on the Company’s overall financial or operational performance; and |
| | | | · ● | administering our equity compensations plans for our employees and directors. |
The members of our Compensation Committee are Messrs. Coelho, Giles and Dr. Stevens. Mr. Coelho is the chairmanChairman of our Compensation Committee. Each member of our Compensation Committee is a non-employee director, as defined in Rule 16b-3 promulgated under the Exchange Act, is an outside director, as defined pursuant to Section 162(m) of the Code, and satisfies the independence requirements of the NYSE Market LLC.American. We believe that the composition of our Compensation Committee meets the requirements for independence under, and the functioningfunction of our Compensation Committee complies with, anythe applicable requirements of the NYSE Market LLCAmerican and SEC rules and regulations. Our Compensation Committee meets at least once per year and our Boardon a regular basis as it deems appropriate. However, from time to time, various members of Directors havemanagement and other employees as well as outside advisors or
consultants may be invited by the Compensation Committee to make presentations, to provide financial or other background information or advice or to otherwise participate in Compensation Committee meetings. Our CEO may not yet establishedparticipate in, or be present during, any deliberations or determinations of the Compensation Committee regarding his compensation or individual performance objectives. Our Compensation Committee has the sole authority to retain compensation consultants to assist in its evaluation of executive and director compensation, including the authority to approve the consultant’s reasonable fees and other retention terms. In general, the Compensation Committee has set executive compensation to be in line with peer companies identified by the Compensation Committee and to incentivize the Company’s executive officers to achieve the Company’s corporate goals. In May 2021, the Compensation Committee engaged a succession plan for our chief executive officer. third-party consultant to review the Company’s compensation structure as well as benchmark it against the Company’s peer group. In fulfilling its responsibilities, the Compensation Committee is permitted under the Compensation Committeeits charter to delegate any or all of its responsibilities to a subcommittee comprised of members of the Compensation Committee or the Board, except that the Compensation Committee may not delegate its responsibilities for any matters that involve compensation of any officer or any matters where it has determined such compensation is intended to comply with Section 162(m) of the Code or is intended to be exempt from Section 16(b) under the Exchange Act pursuant to Rule 16b-3 by virtue of being approved by a committee of independent or nonemployee directors. Nominating and Governance Committee. Our Nominating and Governance Committee oversees and assists our Board of Directors in reviewing and recommending corporate governance policies and nominees for election to our Board of Directors.Board. The Nominating and Governance Committee is responsible for, among other things: | ·● | evaluating and making recommendations regarding the organization and governance of the Board of Directors and its committees; |
| | | | · ● | assessing the performance of members of the Board of Directors and making recommendations regarding committee and chair assignments; |
| | | | ·● | recommending desired qualifications for Board of Directors membership and conducting searches for potential members of the Board; |
| ● | developing and periodically reviewing with our Board of Directors;a succession plan for our CEO; and |
| | | | · ● | reviewing and making recommendations with regard tofor our corporate governance guidelines. |
The members of our Nominating and Governance Committee are currently Messrs. Coelho, Giles and Dr. Stevens. Mr. Coelho is the chairmanChairman of our Nominating and Governance Committee. Our Board of Directors has determined that each member of our Nominating and Governance Committee is independent withinsatisfies the meaning of the independent director guidelinesindependence requirements of the NYSE Market LLC.American. Our Nominating and Governance Committee and the Board have not yet established a succession plan for our CEO. Mr. Macaluso is performing to the satisfaction of the Board and, as such, the Nominating and Governance Committee does not believe there is a pressing need to have a succession plan for the CEO position. Disclosure Committee. Our Disclosure Committee provides assistance to the CEO and the CFO (the “Senior Officers”), in fulfilling their responsibilities regarding the identification and disclosure of material information about the Company and the accuracy, completeness and timeliness of such disclosures. The Disclosure Committee is responsible for, among other things: | ● | designing, adopting and maintaining appropriate procedures and standards that are designed to ensure that: (i) information that we are required to disclose to the SEC, and other written information that we voluntarily disclose to the public, is recorded, processed, summarized and reported accurately and on a timely basis; (ii) risks and risk factors are adequately evaluated and properly disclosed; and (iii) such information is accumulated and communicated to our management, including our Senior Officers, as appropriate, to allow timely decisions regarding required disclosure (the “Disclosure Controls”); |
| ● | monitoring the integrity and evaluating the effectiveness of the Disclosure Controls; |
| ● | reviewing our: (i) Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, proxy statements, material registration statements, and any other information filed with the SEC; (ii) press releases; (iii) correspondence broadly disseminated to stockholders; (iv) presentations to analysts, rating agencies, lenders, stockholders or the investment community; and (v) disclosure relating to results of operations and financial position, securities or clinical trial or other material scientific results posted to the Company’s website or through social media channels (collectively, the “Covered Reports”); |
| ● | discussing with the Senior Officers and making recommendations regarding the materiality of information known to the Company and the Company’s disclosure obligations, if any, including (i) reviewing the Company’s disclosures in the Covered Reports; (ii) evaluating the effectiveness of the Disclosure Controls; and (iii) reviewing the Covered Reports to confirm that they do not contain any false statements or omissions of material fact; |
| ● | overseeing periodic mandatory training sessions to our Board and employees, which shall include coverage of the following topics: (i) risk assessment and compliance, (ii) our Code of Business Conduct and Ethics, (iii) any and all manuals or policies established by us concerning legal or ethical standards of conduct to be observed in connection with work performed for the Company, and (iv) the obligations of the Disclosure Committee and the rules, regulations and other factors that impact disclosures contained in the Covered Reports; and |
| ● | certifying to the Senior Officers prior to the filing of each Annual Report on Form 10-K and Quarterly Report on Form 10-Q as to the Committee’s conclusions regarding its evaluation of the effectiveness of the Company’s Disclosure Controls. |
According to its charter, the Disclosure Committee shall be comprised of the Company’s CEO, CFO, COO and at least two independent members of the Board and possibly other key accounting/auditing, business, risk management, investor relations and financial personnel involved in preparing the Covered Reports. The Disclosure Committee’s chairperson shall be an independent director and will be designated by the Board. The members of our Disclosure Committee are currently Messrs. Macaluso, Stokely, Coelho, Giles and Dr. Stevens, as well as Ms. Cherevka. Dr. Stevens is the Chairman of our Disclosure Committee. Our Board of Directors may from time to time establish other committees. Annual Meeting Attendance and Executive Sessions Commencing January 1,Since 2011, our policy has been that our directors attend the annual meeting of stockholders. We previously did not have a policy concerning director attendance at annual meetings. Commencing January 1,in 2011, our policy has also been that our non-employee directors are also required to meet in separate sessions without management on a regularly scheduled basis four times a year. Generally, these meetings are expected to take place in conjunction with regularly scheduled meetings of the Board of Directors throughout the year. Our 2020 Annual Meeting of Stockholders was held virtually on December 12, 2020 and was attended by all five of the directors serving on our Board.
Director Nominations and Stockholder Communications Our Nominating and Governance Committee’s policy is to evaluate any recommendation for director nominee proposed by a stockholder. Our bylawsBylaws permit stockholders to nominate directors for consideration at the annual meeting, subject to certain conditions. Any recommendation for director nominee must be submitted in writing to: Ampio Pharmaceuticals, Inc. Attention: Corporate Secretary 373 Inverness Parkway, Suite 200 Englewood, Colorado 80112 The Nominating and Governance Committee generally identifies potential candidates for director by seeking referrals from our management and members of theour Board of Directors and their various business contacts. There are currently no specific, minimum, or absolute criteria for Board of Directors membership. Candidates are evaluated based upon key factors such aswhich include independence, knowledge, judgment, integrity, character, leadership skills, education, experience, financial literacy, standing in the community and ability to foster a diversity of backgrounds and views and to complement the Board’s existing strengths. There are no differences in the manner in which the Committee will evaluate nominees for director based on whether the nominee is recommended by a stockholder. We have not implemented a formal policy or procedure by which our stockholders can communicate directly with our Board of Directors.Board. Nevertheless, every effort has been made to ensure that the views of stockholders are heard by the Board of Directors or individual directors, as applicable, and that appropriate responses are provided to stockholders in a timely manner. We believe that we are responsive to stockholder communications, and therefore have not considered it necessary to adopt a formal process for stockholder communications with our Board. During the upcoming year, our Board of Directors will continue to monitor whether it would be appropriate to adopt such a policy. Communications will be distributed to the Board, or to any individual director or directors as appropriate, depending on the facts and circumstances outlined in the communications. Items that are unrelated to the duties and responsibilities of the Board of Directors may be excluded, such as: | ·● | junk mail and mass mailings; |
| | | | · ● | resumes and other forms of job inquiries; |
| | | | · ● | solicitations or advertisements. |
In addition, any material that is unduly hostile, threatening, or illegal in nature may be excluded, provided that any communication that is excluded will be made available to any outside director upon request. Director Independence Our common stockCommon Stock is listed on the NYSE MKT LLC.American. The listing rules of the NYSE MKT RulesAmerican require that a majority of the members of the Board of Directors be independent. The rules of the NYSE MKT RulesAmerican require that, subject to specified exceptions, each member of our Audit, Compensation, and Nominating and Governance Committees be independent. Audit Committee members must also satisfy the independence criteria set forth in Rule 10A-3 under the Exchange Act. Under the rules of the NYSE MKT Rules,American, a director will only qualify as an “independent director” if, in the opinion of that company’s board of directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In order to be considered to be independent for purposes of Rule 10A-3, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, the board of directors or any other board committee: (1)(i) accept, directly or indirectly, any consulting, advisory or other compensatory fee from the listed company or any of its subsidiaries; or (2)(ii) be an affiliated person of the listed company or any of its subsidiaries.
In August 2017,May 2021, our Board of Directors undertook a review of its composition, the composition of its committees and the independence of each director. Based upon information provided by each director concerning his or her background, employment and affiliations, including family relationships, our Board of Directors has determined that none of Messrs. Coelho, Giles andor Dr. Stevens, representing three of our five directors, has a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director and that each of these directors is “independent” as that term is defined by the NYSE MKT Rules.American. Our Board of Directors also determined that Messrs. Giles, Coelho and Dr. Stevens, who comprise our Audit Committee, our Compensation Committee, and our Nominating and Governance Committee, satisfy the independence standards for those committees established by applicable SEC rules and the NYSE MKT Rules.American rules. In making this determination, our Board of Directors considered the relationships that each non-employee director has with our companyCompany and all other facts and circumstances our Board of Directors deemed relevant in determining their independence, including the beneficial ownership of our capital stockCommon Stock by each non-employee director. Code of Business Conduct and Ethics We have adopted a codeCode of business conductBusiness Conduct and ethicsEthics that is applicable to all of our employees, officers, and directors.directors, all of which have read, acknowledged, and agreed to comply with such code. The code is available on our web site,www.ampiopharma.com, under the “Investors” tab. We intend to disclose future amendments to, or waivers from, certain provisions of our codeCode of business conductBusiness Conduct and ethics,Ethics, if any, on the above website within four business days following the date of such amendment or waiver. Insider Trading Policy We have adopted an Insider Trading Policy that is applicable to all of our officers and directors and all of our employees, consultants, and contractors (including members of scientific advisory committees), who receive or have access to material nonpublic information about the Company. The Insider Trading Policy prohibits the misuse of material nonpublic information in trading of the Company’s securities. The Insider Trading Policy also prohibits short sales, transactions in derivative securities on the Company’s securities, pledges of the Company’s securities as collateral for loans, and hedging or monetization transactions or similar arrangements with respect to the Company’s securities. The Insider Trading Policy is available on our web site, www.ampiopharma.com, under the “Investors” tab. Leadership Structure of the Board The Board of Directors does not currently have a policy on whether the same person should serve as both the chief executive officerCEO and chairmanChairman of the Board. Both the Chairman and CEO positions are currently held by Michael Macaluso. The Board believes that our CEO is best suited to serve as our Chairman because he is the member of the Board who is most familiar with our business as a whole, and the most capable of Directors or, ifidentifying and bringing to the attention of the full Board the strategic priorities and key issues facing the Company. The Board also believes that having Mr. Macaluso in particular in a combined Chairman/CEO role helps provide strong, unified leadership for our management team and optimizes communication with our Board. To counterbalance concerns regarding our Board’s decision to have a combined Chairman and CEO, the independent directors elect a lead independent director when the roles of the Chairman and CEO are separate, whetherheld by the chairman should be selected fromsame person. Our lead independent director is Mr. Coelho. In that role, he presides over the non-employeeexecutive sessions of the Board, during which our independent directors or should be an employee. The Boardmeet without management, and he serves as the principle liaison between management and the independent directors of Directors believes that it should have the flexibility to make these determinations at any given point in time in the way that it believes best to provide appropriate leadership for us at that time. Our current chairman, Michael Macaluso, was appointed our chief executive officer effective January 9, 2012. Mr. Macaluso has served as a member ofBoard. Periodically, our Board of Directors since March 2010,assesses these roles and has been a memberthe Board leadership structure to ensure the interests of the board of directors of Life Sciences from December 2009. Company and its stockholders are best served. Risk Oversight The Board of Directors oversees risk management directly and through its committees associated with their respective subject matter areas. Generally, the Board of Directors oversees risks that may affect our business, as a whole, including operational matters. matters and other matters that have been adversely impacted by the COVID-19 pandemic. The Board is also responsible for reviewing and
approving the Company’s annual insurance policies renewal, which includes Directors and Officers insurance. In addition, as part of its oversight of our Company’s executive compensation program, the Board considers the impact of such program, and the incentives created by the compensation awards that it administers, on our Company’s risk profile. Our Board, based on the Compensation Committee’s review of all of our compensation policies and procedures, considers the incentives that they create and factors that may reduce the likelihood of excessive risk taking and determines whether they present a significant risk to our Company. The Board has determined that, for all employees, our compensation programs do not encourage excessive risk and instead encourage behaviors that support sustainable value creation. The Audit Committee is responsible for oversight of our accounting and financial reporting processes and also discusses with management our financial statements, internal controls and other accounting and relatedauditing matters. The Compensation Committee oversees certain risks related to compensation programs and the Nominating and Governance Committee oversees certain corporate governance risks. The Disclosure Committee assists in establishing, implementing, maintaining and evaluating controls or other procedures to ensure that the information required to be disclosed in the Company’s reports furnished or filed under the Exchange Act is properly communicated to the CEO and the CFO. As part of their roles in overseeing risk management, these committees periodically report to the Board of Directors regarding briefings provided by management and advisors as well as the committees’ own analysis and conclusions regarding certain risks faced by us. Management is responsible for implementing the risk management strategy and developing policies, controls, processes and procedures to identify and manage risks. Involvement in Certain Legal Proceedings No director, executive officer, promoterThere are currently no legal proceedings, and during the past ten years there have been no legal proceedings, that are material to the ability or control personintegrity of any of our company has, during the last ten years: (i) been convicteddirectors, director nominees or executive officers.
We are not engaged in, nor are we aware of any pending or threatened litigation in which any of our directors, executive officers, affiliates, or any owner of more than 5% of our Common Stock is currently subject to a pending criminal proceeding (excluding traffic violations and other minor offenses); (ii) been a party adverse to us or has a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subjectmaterial interest adverse to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to any Federal or state securities or banking or commodities laws including, without limitation, in any way limiting involvement in any business activity, or finding any violation with respect to such law, nor (iii) any bankruptcy petition been filed by or against the business of which such person was an executive officer or a general partner, whether at the time of the bankruptcy or for the two years prior thereto. us. Family Relationships There are nois one family relationshipsrelationship to note between any of our directors or executive officers and employees, exceptemployees. Raphael Bar-Or, a non-executive officer, is the son of DavidDr. Bar-Or, M.D.,one of our Chief Scientific Officerdirectors.
NON-EMPLOYEE DIRECTOR COMPENSATION Our Compensation Committee established the following annual fees for payment to non-employee members of our Board and committees, for the fiscal year ended December 31, 2020: | | | | | | | Name | | | Cash Compensation | | | Common Stock | Board Annual Retainer: | | | | | | | Chairman/lead independent director | | $ | 71,000 | | | | Each non-employee director | | $ | 38,500 | | | | Audit Committee Annual Retainer: | | | | | | | Chairman | | $ | 20,000 | | | | Each non-employee director | | $ | 10,000 | | | | Compensation Committee Annual Retainer: | | | | | | | Chairman | | $ | 12,000 | | | | Each non-employee director | | $ | 6,000 | | | | Nominating and Governance Committee Annual Retainer: | | | | | | | Chairman | | $ | 10,000 | | | | Each non-employee director | | $ | 5,000 | | | | Disclosure Committee Annual Retainer: | | | | | | | Chairman | | $ | 12,000 | | | | Each non-employee director | | $ | 6,000 | | | | Annual Stock Award: | | | | | $ | 20,000 |
The non-employee director compensation for fiscal 2020 also included a director.stock option grant to each non-employee director to purchase 36,000 shares of our Common Stock. The options have an exercise price equal to the fair value on the grant date and vest monthly over twelve months. Director Compensation The table below summarizes the compensation paid by us to non-employee directors for the year ended December 31, 2020. Mr. Macaluso, our employee director, does not receive additional compensation for his services as a member of our Board. | | | | | | | | | | | | | | | | | | Fees Earned or | | Option | | Stock Awards | | All Other | | | | Name | | Paid in Cash | | Awards (1) | | (2) | | Compensation | | Total | David Bar-Or, M.D. (3) | | $ | 38,500 | | $ | 349,184 | | $ | 20,000 | | $ | — | | $ | 407,684 | Philip H. Coelho (4) | | $ | 109,000 | | $ | 107,971 | | $ | 20,000 | | $ | — | | $ | 236,971 | Richard B. Giles (5) | | $ | 75,500 | | $ | 142,838 | | $ | 20,000 | | $ | — | | $ | 238,338 | David Stevens, Ph.D. (6) | | $ | 71,540 | | $ | 45,430 | | $ | 20,000 | | $ | — | | $ | 136,970 |
| (1) | The amounts reported under “Option Awards” in the above table reflect the grant date fair value of these awards as determined in accordance with the Financial Accounting Standards Board’s Accounting Standards Codification Topic 718, Compensation – Stock Compensation. The value of stock option awards was estimated using the Black-Scholes option pricing model. The valuation assumptions used in the valuation of options granted may be found in Note 12 to our financial statements included in the annual report on Form 10-K for the year ended December 31, 2020. On December 12, 2020, the date of the 2020 annual meeting, Messrs. Coelho and Giles and Drs. Bar-Or and Stevens were each granted options to purchase 36,000 shares of Common Stock. These options have an exercise price of $1.50 per share, vest over 12 months and have a term of 10 years from the grant date. The value of each stock option award totaled approximately $45,000. Additional stock options were granted to Messrs. Coelho and Giles and Dr. Bar-Or, as further described in the table notes below. |
| (2) | On January 2, 2020, Messrs. Coelho, Giles, and Drs. Stevens and Bar-Or were each awarded 34,059 shares of Common Stock, at a price of $0.5872 which was the closing price of our Common Stock on the date of grant per |
| share, equivalent to $20,000. Since fiscal 2012, the aggregate number of stock awards to each of Messrs. Coelho, Giles and Dr. Stevens totaled 121,049 shares of Common Stock with a value of $140,000. Since fiscal 2019, the aggregate number of stock awards to Dr. Bar-Or totaled 79,287 shares of Common Stock with a value of $40,000. |
| (3) | On July 1, 2020, Dr. Bar-Or was granted options to purchase 200,000 shares of Common Stock. These options have an exercise price of $0.613, vested immediate and have a term of 10 years from the grant date. The value of the stock option award was estimated using the Black-Scholes option pricing model and totaled $101,000. In addition, on November 10, 2020, Dr. Bar-Or was granted options to purchase 300,000 shares of Common Stock. These options have an exercise price of $0.786, vest one-third on grant date, one-third on the first anniversary of the grant date and the remaining one-third on the second anniversary of the grant date, and have a term of 10 years from the grant date. The value of the stock option award was estimated using the Black-Scholes option pricing model and totaled $203,000. The aggregate number of shares issuable upon exercise of option awards outstanding at December 31, 2020 for Dr. Bar-Or was 602,000, of which 366,000 were fully vested. |
| (4) | Pursuant to an option repricing program undertaken by the Company in July 2020, 160,554 of Mr. Coelho’s options were cancelled and, in replacement thereof 136,471 options, which were fully vested upon grant, were issued. The value of the replacement stock option award was estimated using the Black-Scholes option pricing model and totaled $63,000. The aggregate number of shares issuable upon exercise of option awards outstanding at December 31, 2020 for Mr. Coelho was 668,221, of which 632,221 were fully vested. |
| (5) | Pursuant to an option repricing program undertaken by the Company in July 2020, 250,000 of Mr. Giles’s options were cancelled and, in replacement thereof 212,500 options, which were fully vested upon grant, were issued. The value of the replacement stock option award was estimated using the Black-Scholes option pricing model and totaled $97,000. The aggregate number of shares issuable upon exercise of option awards outstanding at December 31, 2020 for Mr. Giles was 740,000, of which 704,000 were fully vested. |
| (6) | The aggregate number of shares issuable upon exercise of option awards outstanding at December 31, 2020 for Dr. Stevens was 378,750, of which 342,750 were fully vested. |
Our non-employee directors are reimbursed by us for any out-of-pocket expenses incurred, reviewed and approved in connection with business activities conducted on our behalf. EXECUTIVE OFFICERS Our current executive officers and their respective ages and positions as of the date of this Proxy Statement are set forth in the following table. Biographical information regarding each executive officer who is not also a director is set forth following the table. Name | | Age | | Position | Name | | Age | | Position | Michael Macaluso | | 6669 | | Chief Executive OfficerCEO and Chairman of the Board | David Bar-Or, M.D.Daniel G. Stokely | | 6858 | | Chief Scientific OfficerCFO and DirectorSecretary | Thomas E. Chilcott, IIIHolli Cherevka | | 4938 | | Chief FinancialOperating Officer (“COO”) |
Thomas E. Chilcott, IIIDaniel G. Stokely has been employed by usserved as our CFO and Secretary since July 2019 and has more than 30 years of experience in finance and accounting. He began his career at Deloitte & Touche and since that time, he has spent the majority of his career in positions of financial leadership within both publicly traded and privately held pharmaceutical companies. Most recently, since 2012, he served as Executive Vice President and CFO of Sentynl Therapeutics Inc., a privately held specialty pharmaceutical company focused on licensing, acquisition, marketing, and distribution of development stage and commercially marketed prescription pain products, which was sold to Cadila Healthcare Ltd. in January 2017. PriorFrom 2004 to joining us,2012, Mr. Chilcott,Stokely served as Vice President of Finance and Chief Accounting Officer (“CAO”) of Victory Pharma, a privately-held specialty pharmaceutical company focused on in licensing, internal product development, marketing, and distribution of pain specialty products, which was sold to Shionogi, Inc., a Japanese pharmaceutical company, in 2011. From 2001 to 2004, Mr. Stokely served as the PresidentCorporate Controller and Chief Financial OfficerCAO for Wireless Facilities, Inc. (currently Kratos Defense & Security Solutions, Inc.), a publicly traded, global provider of Chilcott Consulting Groupcommunications and security services for the wireless communications industry. From 1994 to 2001, Mr. Stokely served as Corporate Controller of Dura Pharmaceuticals, a publicly traded pharmaceutical company that was sold to
Elan Pharmaceuticals in late 2000. He has a B.S. degree in accounting from September 2006 to December 2016. Mr. Chilcott began his career as an auditor with KMPG Peat Marwick. He graduated from VillanovaSan Diego State University with a BS of Administration in Accountancy and is a Certified Public Accountant licensed in good standing. EXECUTIVE COMPENSATION
Compensation Discussion and Analysis
California. Overview.Holli Cherevka Thehas served as our COO since September 2017. Prior to taking her current role, Ms. Cherevka served as our Vice President of Operations and oversaw the clinical, regulatory, and manufacturing operations. Since starting at Ampio in January 2013, she has held the following Compensation Discussionadditional roles of increasing responsibility including: Director of Clinical Trials (from January 2013 to November 2013), Senior Director of Clinical Trials (from November 2013 to May 2015), Vice President of Operations (from May 2015 to September 2017) and Analysis describesCOO (from September 2017 to current). Previously, Ms. Cherevka was the material elementsDirector of compensation for our executives identifiedBusiness Development at the American College of Radiology (ACR) Image Metrix from 2011 to 2013. Ms. Cherevka earned a B.A. degree from California State University, Chico, and an M.S. degree in the Summary Compensation Table (“Named Executive Officers”). The Compensation Committeebiomedical and molecular sciences research from King’s College, London. Ms. Cherevka is a member of the BoardParenteral Drug Association, Colorado Bioscience Association and the International Society of Directors assistsPharmaceutical Engineers, and a board member of the BoardProfessional Science Master’s in Biomedical Sciences (PSM) program at the University of Directors in dischargingDenver. She has represented Ampio Pharmaceuticals at conferences for the Board’s responsibilities regarding compensationInternational Society of our executives, including the Named Executive Officers. In particular, the Compensation Committee makes recommendations to the Board of Directors regarding the corporate goalsPharmaceutical Engineers as well as at Global Investment Conferences and objectives relevant to executive compensation, evaluates executives’ performance in light of such goals and objectives, and recommends the executives’ compensation levels to the Board of Directors based on such evaluations. The Compensation Committee’s recommendations relating to compensation matters are subject to approval by the Board.shareholder meetings.
Compensation Philosophy and Objectives. Our executive compensation program is designed to retain our executive officers and to motivate them to increase stockholder value on both an annual and longer term basis. These objectives are to be accomplished primarily by positioning us to maximize our product development efforts and to transform, over time, those efforts into revenues and income. To that end, compensation packages include significant incentive forms of stock-based compensation to ensure that each executive officer’s interest is aligned with the interests of our stockholders.EXECUTIVE COMPENSATION
Named Executive Officers For our most recently completed fiscal year (the year ended December 31, 2016),2020, our Named Executive Officersnamed executive officers were: (i) Michael Macaluso, our Chief Executive Officer,CEO, who has served as our Chief Executive OfficerCEO since January 9, 2012, (ii) David Bar-Or, M.D.,Daniel G. Stokely, our current Chief Scientific Officer,CFO, who has served as our Chief Scientific OfficerCFO and Secretary since March 2010,July 2019, and (iii) Gregory Gould,Holli Cherevka, our former Chief Financial Officer,current COO, who has served as our Chief Financial Officer from June 2014 until June 2017 and has also served as the Chief Financial Officer of Aytu BioScience, Inc.COO since April 2015, and (iv) Vaughan Clift, our former Chief Regulatory Affairs Officer, who served as our Chief Regulatory Affairs Officer from March 2010 until July 2016.September 2017. We had no other executive officers serving during the year ended December 31, 2016. Executive Compensation Components
Our compensation program for our Named Executive Officers, consists of three components: (i) a base salary, (ii) discretionary bonuses based on performance, and (iii) equity compensation. Each of these components is reflected in the Summary Compensation Table below.
Salaries. The initial cash salaries paid to Messrs. Macaluso, Gould and Drs. Bar-Or and Clift were established at the time they became officers. Each of these persons has an employment agreement with us, a copy of which is an exhibit to, or incorporated by reference herein. Since the respective dates of their becoming Named Executive Officers, any increases in the salaries of our Named Executive Officers have been made at the discretion of the Compensation Committee. Mr. Macaluso and Dr. Bar-Or receive no additional compensation for serving on our Board of Directors.
Cash Incentive Compensation. Cash incentive or bonus compensation is discretionary under our employment agreements with Drs. Bar-Or and Clift and Messrs. Macaluso and Gould. However, each employment agreement contains performance objectives tailored to the individual officer’s duties, and Company performance. All cash incentive compensation grants are intended to be paid in accordance with Section 162(m) of the Code. For 2016, we awarded a cash bonus to Mr. Macaluso of $5,000, to Dr. Bar-Or of $5,000, to Dr. Clift of $0 and to Mr. Gould of $5,000, which were awarded on a discretionary basis by the Compensation Committee based on the Compensation Committee’s assessment of 2016 performance. Of Mr. Gould’s $5,000 bonus, $2,500 was related to his performance for Aytu.
Equity Compensation. In 2016, we granted stock options to certain of our officers, directors and consultants for their services, all of which were granted pursuant to written agreements under the 2010 Plan. All future grants are expected to be made under the 2010 Plan. The vesting period for option grants varies.
Perquisites. We offer health benefits to all of our employees. None of our Named Executive Officers receives any further perquisites.
Why Each Element of Compensation is Paid; How the Amount of Each Element is Determined. The Compensation Committee intends to pay each of these elements in order to ensure that a desirable overall mix is established between base compensation and incentive compensation, cash and non-cash compensation, and annual and long-term compensation. The Compensation Committee also intends to evaluate on a periodic basis the overall competitiveness of our executive compensation packages as compared to packages offered in the marketplace for which we compete for executive talent. Overall, our Compensation Committee believes that our executive compensation packages are appropriately balanced and structured to retain and motivate our Named Executive Officers, while taking into account our current limited financial resources.
How Each Compensation Element Fits into Overall Compensation Objectives and Affects Decisions Regarding Other Elements. In establishing compensation packages for executive officers, numerous factors are considered, including the particular executive’s experience, expertise and performance, our operational and financial performance as a company, and compensation packages available in the marketplace for similar positions. In arriving at amounts for each component of compensation, our Compensation Committee strives to strike an appropriate balance between base compensation and incentive compensation. The Compensation Committee also endeavors to properly allocate between cash and non-cash compensation and between annual and long-term compensation.
Risk Assessment. Our Compensation Committee has reviewed our compensation program and believes that the program, including our cash incentive compensation and equity incentive compensation, does not encourage our Named Executive Officers to engage in any unnecessary or excessive risk-taking. As a result, the Compensation Committee has to date not implemented a provision for recovery by us of cash or incentive compensation bonuses paid to our Named Executive Officers.
Role of Compensation Consultants in Executive Compensation Decisions. The Compensation Committee has the authority to retain the services of third-party executive compensation specialists in connection with the establishment of the Company’s compensation policies. The Compensation Committee did not use a compensation consultant in connection with setting 2016 executive compensation, and relied upon the professional and market experience of the Committee members in determining 2016 executive compensation. The Compensation Committee may engage a compensation consultant in the future if it deems such services to be appropriate and cost-justified.
Role of Executives in Executive Compensation Decisions.The Compensation Committee seeks input and specific recommendations from our Chief Executive Officer when discussing the performance of, and compensation levels for, executives other than himself. The Chief Executive Officer provides recommendations to the Compensation Committee regarding each executive officer’s level of individual achievement other than himself. However, he is not a member of the Compensation Committee and does not vote. The Compensation Committee also works with our Chief Executive Officer and our Chief Financial Officer to evaluate the financial, accounting, tax and retention implications of our various compensation programs. Neither our Chief Executive Officer nor any of our other executives participates in deliberations relating to his or her own compensation.
Tax and Accounting Implications
Deductibility of Executive Compensation. Section 162(m) of the Internal Revenue Code limits the tax deduction to $1.0 million for compensation paid to certain executives of public companies. However, performance-based compensation that has been approved by stockholders is not subject to the $1.0 million limit under Section 162(m) if, among other requirements, the compensation is payable only upon attainment of pre-established, objective performance goals, and the Board of Directors committee that establishes such goals consists only of “outside directors.” All members of the Compensation Committee qualify as outside directors. Additionally, stock options will qualify for the performance-based exception where, among other requirements, the exercise price of the option is not less than the fair market value of the stock on the date of the grant, and the plan includes a per-executive limitation on the number of shares for which options may be granted during a specified period.
Compensation Committee Interlocks and Insider Participation
None of the members of our Compensation Committee is an officer or employee of our company. None of our executive officers currently serves, or in the past year has served, as a member of the Board of Directors or Compensation Committee of any entity that has one or more executive officers serving on our Board of Directors or Compensation Committee.
Compensation Committee Report
The Compensation Committee of the Board of Directors has reviewed and discussed the Compensation Discussion and Analysis required by Item 402(b) of Regulation S-K with management and, based on such review and discussions, the Compensation Committee recommended to the Board of Directors that the Compensation Discussion and Analysis be included in this Proxy Statement and in the Company’s Annual Report on Form 10-K.
| Submitted by the Compensation Committee of the Board of Directors | | | | Philip H. Coelho | | Richard B. Giles | | David R. Stevens, Ph.D. |
Summary Compensation Table for 2016, 2015 and 2014
2020. The following table sets forthshows, for the compensation paid by us during thefiscal years ended December 31, 2016, December 31, 20152020 and December 31, 20142019, compensation awarded to, paid to, or earned by our named executive officers. Summary Compensation of Named Executive Officers as of December 31, 2016: | Name and Principal Position | | Year | | Salary ($) | | Bonus ($) | | Stock Award ($) | | Option Award ($)(1) | | Non-Equity Incentive Plan Compensation ($) | | Change in Pension Value and Nonqualified Deferred Compensation Earnings ($) | | All Other Compensation ($) | | Total ($) | | | (a) | | (b) | | (c) | | (d) | | (e) | | (f) | | (g) | | (h) | | (i) | | (j) | | | | | | | | | | | | | | | | | | | | | | | | Current Named Exective Officers | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Michael Macaluso | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Chief Executive Officer | | | 2016 | | | 300,000 | | | 5,000 | | | - | | | - | | | - | | | - | | | - | | | 305,000 | | | effective January 2012 | | | 2015 | | | 300,000 | | | 5,000 | | | - | | | - | | | - | | | - | | | 108,433 | (2)(3) | | 413,433 | | | | | | 2014 | | | 300,000 | | | 155,000 | | | - | | | 1,095,433 | | | - | | | - | | | - | | | 1,550,433 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | David Bar-Or, M.D. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Chief Scientic Officer and | | | 2016 | | | 300,000 | | | 5,000 | | | - | | | - | | | - | | | - | | | - | | | 305,000 | | | Former Chairman | | | 2015 | | | 300,000 | | | 5,000 | | | - | | | - | | | - | | | - | | | 224,617 | (2)(3) | | 529,617 | | | | | | 2014 | | | 300,000 | | | 5,000 | | | - | | | 1,538,943 | | | - | | | - | | | - | | | 1,843,943 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Gregory A. Gould | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Chief Financial Officer | | | 2016 | | | 250,000 | (7) | | 5,000 | | | - | | | 128,162 | | | - | | | - | | | - | | | 383,162 | | | since June 2014 | | | 2015 | | | 250,000 | | | 98,750 | (6) | | - | | | 212,162 | | | - | | | - | | | 232,801 | (3) | | 793,713 | | | | | | 2014 | | | 138,450 | (4) | | 5,000 | | | - | | | 1,435,243 | | | - | | | - | | | 21,620 | (5) | | 1,600,313 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Vaughan Clift, M.D. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Chief Regulatory Affairs | | | 2016 | | | 145,833 | | | - | | | - | | | 12,411 | | | - | | | - | | | 161,897 | | | 320,141 | | | Officer | | | 2015 | | | 250,000 | | | 5,000 | | | - | | | - | | | - | | | - | | | - | | | 255,000 | | | | | | 2014 | | | 250,000 | | | 5,000 | | | - | | | 872,067 | | | - | | | - | | | - | | | 1,127,067 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Mark D. McGregor | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Chief Financial Officer | | | 2016 | | | - | | | - | | | - | | | 20,750 | (8) | | - | | | - | | | - | | | 20,750 | | | since April 2011 | | | 2015 | | | - | | | - | | | - | | | 125,901 | (8) | | - | | | - | | | - | | | 125,901 | | | | | | 2014 | | | 103,125 | (9) | | 29,000 | | | - | | | - | | | - | | | - | | | 75,000 | (10) | | 207,125 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Joshua R. Disbrow | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Former Chief Operating Officer | | | 2016 | | | - | (15) | | - | | | - | | | - | | | - | | | - | | | - | | | - | | | and Chief Executive Officer | | | 2015 | | | 255,587 | (13) | | 122,500 | (14) | | - | | | 691,948 | (11) | | - | | | - | | | 558,722 | (3) | | 1,628,757 | | | of Aytu BioScience, Inc. | | | 2014 | | | 245,000 | | | 180,000 | (12) | | - | | | - | | | - | | | - | | | - | | | 425,000 | |
| | | | | | | | | | | | | | | | | | | | | | | | | Option | | All Other | | | | | | | | | | | Stock | | Awards | | Compensation | | | Name and Principal Position | | Year | | Salary ($) | | Bonus ($) | | Awards ($) | | ($)(1) | | ($) (11) | | Total ($) | (a) | | (b) | | (c) | | (d) | | (e) | | (f) | | (i) | | (j) | Named Executive Officers | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Michael Macaluso | | | | | | | | | | | | | | | CEO, effective January 2012 | | 2020 | | 300,000 | | 157,040 | (2)(4) | — | | 311,097 | (3) | — | | 768,137 | | | 2019 | | 300,000 | | 5,000 | (4) | — | | — | | — | | 305,000 | | | | | | | | | | | | | | | | Daniel G. Stokely | | | | | | | | | | | | | | | CFO, effective July 2019 | | 2020 | | 285,000 | | 56,665 | (4)(5) | — | | 44,670 | (6) | 77,830 | (7) | 464,165 | | | 2019 | | 119,740 | (7) | 5,000 | (4) | — | | 149,135 | (7) | 30,505 | (7) | 304,380 | | | | | | | | | | | | | | | | Holli Cherevka | | | | | | | | | | | | | | | COO, effective September 2017 | | 2020 | | 280,000 | | 7,040 | (4) | — | | 98,751 | (8) | 1,000 | | 386,791 | | | 2019 | | 223,333 | (9) | 55,000 | (4) (10) | — | | 88,732 | (9) | — | | 367,065 | | | | | | | | | | | | | | | |
| (1) | Option awards areThe amounts reported atunder “Option Awards” in the above table reflect the grant date fair value atof these awards as determined in accordance with the date of grant. | | (2) | Financial Accounting Standards Board’s Accounting Standards Codification Topic 718, Compensation includes a cash payment per option share equal– Stock Compensation, rather than amounts paid to or realized by the difference between the consideration payable per share of common stock pursuant to the Luoxis Rosewind Merger and the exercise pricenamed individual. The value of the option (total paymentawards was $27,000) andestimated using the fair valueBlack-Scholes option pricing model. The valuation assumptions used in the valuation of Aytu options granted may be found in November 2015 when Aytu was a subsidiary of Ampio.Note 12 to our financial statements included in the annual report on Form 10-K for the year ended December 31, 2020. |
| (3) | Compensation includes the fair value of Aytu options granted in November 2015. | | (4)(2) | Mr. Gould was appointed Chief Financial Officer effective June 2014. |
| (5) | Compensation related to Mr. Gould’s expense to move his family to Colorado. | | (6) | Mr. GouldMacaluso received $25,000 of thisa $150,000 bonus which related to his performance for Aytu.the year ended December 31, 2020. |
| (3) | (7)Mr. Macaluso entered into an employment agreement with the Company, effective January 2020, to continue his position as CEO, at an annual salary of $300,000. In connection with Mr. Macaluso’s employment, he was awarded 200,000 options. The aggregate value of the stock option award was estimated using the Black-Scholes option pricing model and totaled $118,000. In addition, pursuant to an option repricing program undertaken by the Company in July |
| Per an agreement between Ampio and Aytu, Aytu paid 50%, $125,0002020, 300,000 of Mr. Gould’s base salary back to Ampio for his services rendered as Aytu’s chief financial officerMacaluso’s options were cancelled and, in replacement thereof 255,000 options, which were fully vested upon grant, were issued. The incremental value of the replacement stock option award was estimated using the Black-Scholes option pricing model and totaled $117,000. In December 2020, Mr. Macaluso was also awarded 50,000 options. The aggregate value of the stock option award was estimated using the Black-Scholes option pricing model and totaled $76,000. |
| (4) | Each of the named executive officers received a $7,000 and $5,000 holiday bonus, respectively, during 2016.the years ended December 31, 2020 and December 31, 2019. |
| (8)(5) | Mr. McGregor’s options were modified in May 2015 and July 2016 which extended the expiration date an additional year to August 15, 2016. | | (9) | Mr. McGregor resigned as Chief Financial Officer effective June 2014. | | (10) | Mr. McGregor’s retirement severance and modified options which accelerated the vesting of 96,181 options and extended the exercise period from 90 days after termination to August 15, 2015 for 275,000 options. All of the $130,000 of expense related to this modification was recognized in 2014. | | (11) | Mr. Disbrow’s options were modified in April 2015 which accelerated the vesting and extended the exercise period from ninety days after termination to April 15, 2020. | | (12) | In 2014, Mr. DisbrowStokely received a $50,000 bonus of $175,000 related to his superior performance as Chief Executive Officerfor the year ended December 31, 2020. |
| (6) | In January 2020, Mr. Stokely was awarded 30,000 options. The aggregated value of Luoxis.the stock option awards was estimated using the Black-Scholes option pricing model and totaled $15,000. In December 2020, Mr. Stokely was also awarded 20,000 options. The aggregated value of the stock option awards was estimated using the Black-Scholes options pricing model and totaled $30,000. |
| (13)(7) | Mr. Disbrow resigned as Chief Operating OfficerStokely was appointed CFO, effective April 2015July 2019, with an annual salary of $285,000. In connection with Mr. Stokely’s employment agreement, he was awarded 400,000 options. The aggregate value of the stock option award was estimated using the Black-Scholes option pricing model and took the positiontotaled $149,000. In addition, we agreed to reimburse Mr. Stokely for certain commuting and housing expenses up to a maximum of Chief Executive Officer at Aytu which was a subsidiary of Ampio until January 4, 2016. | | (14) | Mr. Disbrow received a bonus of $122,500$6,000 per month for up to twelve months and up to $43,000 for taxes related to his superior performancethe commuting and housing expenses. During the twelve-month period starting July 2019 and ending July 2020, a total of $66,000 was reimbursed for commuting and housing expenses and $42,000 was reimbursed related to taxes as Chief Executive Officera result of Aytu. | | (15) | Mr. Disbrow received no compensation from Ampiothe commuting and relocation expense payments. Therefore, a total of $108,000 was reimbursed for commuting/relocation expense and taxes as of December 31, 2020, in fiscal 2016 as Ayturespect of the twelve-month period starting July 2019 and ending July 2020. Of the $66,000 that was divested on January 4, 2016reimbursed for commuting and since that date is no longer considered a subsidiary of Ampio.housing expense, $43,000 related to corporate housing, $20,000 related to traveling expense and $3,000 related to other expenses. |
The executive officers will be reimbursed
| (8) | Pursuant to an option repricing program undertaken by the Company in December 2020, 70,598 of Ms. Cherevka’s options were cancelled and, in replacement thereof 55,000 options, which were fully vested upon grant, were issued. The incremental value of the replacement stock option award was estimated using the Black-Scholes option pricing model and totaled $84,000. In addition, in December 2020, Ms. Cherevka was also awarded 10,000 options. The aggregate value of the stock option award was estimated using the Black-Scholes option pricing model and totaled $15,000. |
| (9) | Ms. Cherevka entered into an employment agreement with the Company, effective September 2019, to continue her position as COO, at an annual salary of $280,000. In connection with Ms. Cherevka’s employment, she was awarded 200,000 options with a fair value of $89,000. |
| (10) | Ms. Cherevka received a $50,000 bonus related to her performance for the year ended December 31, 2019. |
| (11) | The Company provides group term life insurance coverage in the amount of $20,000 for all employees, including the named executive officers, for a nominal annual premium amount. |
Our executive officers are reimbursed by us for any out-of-pocket expenses incurred, reviewed and approved in connection with business activities conducted on the Company’sour behalf. Grants of Plan-Based Awards
The following table sets forth certain information regarding grants of plan-based awards to the Named Executive Officers as of December 31, 2016:
| Name | | Grant Date | | | All Other Option Awards: Number of Securities Underlying Options (#) | | | Exercise Price of Option Awards ($/Share) | | | Grant Date Fair Value of Option Awards | | | | | | | | | | | | | | | | | Current Named Exective Officers | | | | | | | | | | | | | | | | | | Gould, Gregory | | | 7/15/2016 | | | | 150,000 | | | $ | 1.03 | | | $ | 128,162 | |
In June 2017, the contract for the Chief Financial Officer was not renewed. His unvested options became fully vested on that date. These options expire between 90 days and one year from the date of his contract expiring.
Outstanding Equity Awards at Fiscal Year-End The following table provides a summary of equity awards outstanding for each of the Named Executive Officersnamed executive officers as of December 31, 2016:2020: | | | Option Awards | | | Stock Awards | | | Name | | | | Number of Securities Underlying Unexercised Options Exercisable (#) | | | Number of Securities Underlying Unexercised Options Unexercisable (#) | | | Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#) | | | Option Exercise Price ($) | | | Option Expiration Date | | | Number of Shares or Units of Stock That Have Not Vested (#) | | | Market Value of Shares or Units of Stock That Have Not Vested ($) | | | Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested (#) | | | Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($) | | | (a) | | | | (b) | | | (c) | | | (d) | | | (e) | | | (f) | | | (g) | | | (h) | | | (i) | | | (j) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Current Named Executive Officers | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Michael Macaluso | | (1) | | | 266,666 | | | | 133,334 | | | | - | | | | 3.46 | | | | 12/20/2024 | | | | - | | | | - | | | | - | | | | - | | | Michael Macaluso | | | | | 250,000 | | | | - | | | | - | | | | 2.76 | | | | 5/7/2022 | | | | - | | | | - | | | | - | | | | - | | | Michael Macaluso | | | | | 220,000 | | | | - | | | | - | | | | 1.03 | | | | 8/12/2020 | | | | - | | | | - | | | | - | | | | - | | | Michael Macaluso | | | | | 180,000 | | | | - | | | | - | | | | 1.70 | | | | 8/27/2020 | | | | - | | | | - | | | | - | | | | - | | | David Bar-Or, M.D. | | | | | 300,000 | | | | - | | | | - | | | | 6.48 | | | | 8/11/2024 | | | | - | | | | - | | | | - | | | | - | | | David Bar-Or, M.D. | | | | | 300,000 | | | | - | | | | - | | | | 6.15 | | | | 7/15/2023 | | | | - | | | | - | | | | - | | | | - | | | David Bar-Or, M.D. | | | | | 200,000 | | | | - | | | | - | | | | 2.76 | | | | 5/7/2022 | | | | - | | | | - | | | | - | | | | - | | | David Bar-Or, M.D. | | | | | 400,000 | | | | - | | | | - | | | | 1.03 | | | | 8/12/2020 | | | | - | | | | - | | | | - | | | | - | | | Gregory A. Gould | | | | | 300,000 | | | | - | | | | - | | | | 7.14 | | | | 9/8/2017 | | | | - | | | | - | | | | - | | | | - | | | Gregory A. Gould | | (2) | | | 66,666 | | | | 33,334 | | | | - | | | | 2.60 | | | | 6/9/2018 | | | | - | | | | - | | | | - | | | | - | | | Gregory A. Gould | | (3) | | | 50,000 | | | | 100,000 | | | | - | | | | 1.03 | | | | 6/9/2018 | | | | - | | | | - | | | | - | | | | - | |
| | | | | | | | | | | | | Option Awards | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | Equity Incentive | | | | | | | | | Number of | | Plan Awards: | | | | | | | Number of | | Securities | | Number of | | | | | | | Securities | | Underlying | | Securities | | | | | | | Underlying | | Unexercised | | Underlying | | | | | | | Unexercised | | Options | | Unexercised | | Option | | Option | | | Options Exercisable | | Unexercisable | | Unearned | | Exercise | | Expiration | Name | | (#) | | (#) | | Options (#) | | Price ($) | | Date | (a) | | (b) | | (c) | | (d) | | (e) | | (f) | | | | | | | | | | | | Named Executive Officers | | | | | | | | | | | | | | | | | | | | | | Michael Macaluso | | 50,000 | | — | | — | | 1.78 | | 12/17/2030 | Michael Macaluso | | 255,000 | (1) | — | | — | | 0.65 | | 7/10/2030 | Michael Macaluso | | 100,000 | | 100,000 | (2) | — | | 0.68 | | 1/10/2030 | Michael Macaluso | | 400,000 | | — | | — | | 0.81 | | 3/9/2027 | Michael Macaluso | | 250,000 | | — | | — | | 2.76 | | 5/7/2022 | Michael Macaluso | | 180,000 | | — | | — | | 1.70 | | 8/27/2020 | Daniel G. Stokely | | 20,000 | | — | | — | | 1.78 | | 12/17/2030 | Daniel G. Stokely | | 30,000 | | — | | — | | 0.59 | | 1/2/2030 | Daniel G. Stokely | | 400,000 | | — | | — | | 0.43 | | 8/20/2029 | Holli Cherevka | | 55,000 | (3) | — | | — | | 1.78 | | 12/17/2030 | Holli Cherevka | | 10,000 | | — | | — | | 1.78 | | 12/17/2030 | Holli Cherevka | | 200,000 | | — | | — | | 0.51 | | 9/16/2029 | Holli Cherevka | | 200,000 | | — | | — | | 0.55 | | 9/19/2027 | Holli Cherevka | | 30,000 | | — | | — | | 0.51 | | 8/8/2027 | Holli Cherevka | | 170,000 | | — | | — | | 0.75 | | 7/15/2026 | Holli Cherevka | | 30,000 | | — | | — | | 0.75 | | 10/6/2024 | Holli Cherevka | | 9,402 | | — | | — | | 0.75 | | 11/8/2023 | Holli Cherevka | | 45,000 | | — | | — | | 0.75 | | 4/2/2023 | Holli Cherevka | | 35,000 | | — | | — | | 0.75 | | 1/14/2023 |
| (1) | UnexercisablePursuant to an option repricing program undertaken by the Company in July 2020, 300,000 of Mr. Macaluso’s options were cancelled and, in replacement thereof 255,000 options, which were fully vested upon grant, were issued. The incremental value of the replacement stock option award was estimated using the Black-Scholes option pricing model and totaled $117,000. |
| (2) | Mr. Macaluso’s unexercisable options vest annually starting on the first anniversary of the grant date and becomebecame fully vested on January 1, 2017.10, 2021. The option awards remain exercisable until their expiration on the ten-year anniversary of the date of grant subject to earlier forfeiture following termination of employment. |
| (3) | (2) | UnexercisablePursuant to an option repricing program undertaken by the Company in December 2020, 70,598 of Ms. Cherevka’s options vest annuallywere cancelled and, becomein replacement thereof 55,000 options, which were fully vested July 30, 2017. |
| (3) | Unexercisable options vest annually and become fully vested July 15, 2018. |
Option Exercises and Stock Vested
The following table provides a summary of option exercises and stock vested for each of the Named Executive Officers as of December 31, 2016:
| | | Option Awards | | | | Stock Awards | | Name | | | Number of Shares Acquired on Exercise
(#)
| | | | Value Realized on Exercise
($) (1)
| | | | Number of Shares Acquired on Vesting
(#)
| | | | Value Realized on Vesting
($)
| | (a) | | | (b) | | | | (c) | | | | (d) | | | | (e) | | Michael Macaluso | | | — | | | | — | | | | — | | | | — | | David Bar-Or, M.D. | | | — | | | | — | | | | — | | | | — | | Vaughan Clift, M.D. | | | — | | | | — | | | | — | | | | — | | Gregory A. Gould | | | — | | | | — | | | | — | | | | — | |
| (1) | Value realized on exercise is based on the gain, if any, equal to the difference between the fair marketupon grant, were issued. The incremental value of the replacement stock acquired upon exercise onoption award was estimated using the exercise date less the exercise price, multiplied by the number of shares for which options are being exercised.Black-Scholes option repricing model and totaled $84,000. |
Employment Agreements We entered into an employment agreement with Mr. Michael Macaluso, our Chief Executive Officer,CEO, effective January 9, 2012 which2012. This agreement provided for an annual salary of $195,000, with an initial term ending January 9, 2015. On October 1, 2013, we increased Mr. Macaluso’s annual salary from $195,000 to $300,000. On December 20, 2014, we extended the Employment Agreementemployment agreement of Mr. Macaluso for three additional years, expiring January 9, 2017. In connection with this Amendment, Mr. Macaluso was awarded an option to purchase 400,000 shares of our common stock at an exercise price of $3.46 vesting annually over three years beginning on January 1, 2015. On March 9, 2017, we extended the Employment Agreement of Mr. Macalusohis employment agreement for another three additional years expiringuntil January 9, 2020. In connection with thishis 2017 Amendment, Mr. Macaluso was awarded an option400,000 options to purchase 400,000 shares of our common stockCommon Stock at an exercise price of $0.81 vesting annually over three years beginning on JanuaryMarch 9, 2018. In August 2010,On December 14, 2019, we entered into employment agreements with Dr. David Bar-Or, our Chief Scientific Officer, and Dr. Vaughan Clift, our former Chief Regulatory Affairs Officer. Thea new three-year employment agreement with Dr. Bar-Or supersedesMr. Macaluso (the “Macaluso Employment Agreement”), which became effective on January 10, 2020 (“Start Date”) immediately following the expiration of his prior agreementemployment agreement. In connection with Life Sciences. Dr. Clift’s employment agreement was amendedhis continued service as the Company’s CEO and
as a member of the Board, Mr. Macaluso will continue to receive an annual base salary of $300,000 with a term ending January 10, 2023, subject to certain automatic renewal provisions. At the Start Date, Mr. Macaluso received a one-time equity award of 200,000 stock options at an exercise price per share equal to the closing price of the Company’s Common Stock as reported on October 1, 2010the NYSE American on the Start Date (50% of which vested on the Start Date and May 26, 2011. The50% of which will vest on January 10, 2021). Mr. Macaluso will also be able to allocate incentive compensation to others through (i) a special cash bonus pool of $50,000, which he shall be able to allocate in his reasonable discretion to employees of the Company, and (ii) recommendations to the Compensation Committee of the issuance of up to 100,000 stock options, pursuant to the terms of the Company’s 2019 Stock and Incentive Plan. Each of the cash and stock option bonus pools have been substantially allocated by the date of this proxy statement. As consideration for the incentive compensation pools, on the Start Date, Mr. Macaluso forfeited previously granted options to purchase 100,000 shares of Common Stock, which were originally granted on August 12, 2010 with an exercise price of $1.70 and which were fully vested. We entered into a three-year employment agreementsagreement with Dr. Bar-OrMr. Daniel G. Stokely, CFO, and Dr. Clift are substantially identical except as noted below. Each agreement hadCorporate Secretary (as amended, the “Stokely Employment Agreement”), on July 9, 2019 for his services beginning on July 31, 2019, which provided for an initialannual salary of $285,000 and a term ending July 31, 2013. The agreements provide for annual salaries of $300,000 for Dr. Bar-Or and $250,000 for Dr. Clift. On July 15, 2013, we extended the Employment Agreements of Dr. David Bar-Or and Dr. Vaughan Clift for one additional year, expiring July 31, 2014.2022, subject to certain automatic renewal provisions. In connection with these Amendments, Dr. Bar-Or and Dr. Clift werehis employment, Mr. Stokely was awarded 400,000 options to purchase 300,000 and 170,000 shares of our common stock, respectively,Common Stock at an exercise price of $6.15$0.43, as determined pursuant to that certain Stock Option Cancellation and Grant Agreement for Executive, dated August 20, 2019, with 50% of these options vesting upon grant and the remaining 50% vesting one year from the effective start date of employment. In December 2019, an amendment to Mr. Stokely’s employment agreement awarded him an additional 30,000 options to purchase Common Stock, which were granted in January 2020, at an exercise price of $0.5872, with 50% vesting upon grant and 50% after one year. On August 11, 2014,vesting on July 31, 2020. In addition, we initially agreed to reimburse Mr. Stokely for certain commuting and housing expense up to a maximum of $6,000 per month for up to six months. In December 2019, we extended the Employment Agreementsperiod of Dr. David Bar-Orreimbursement for commuting and Dr. Vaughan Clifthousing expenses for onean additional year, expiringtwo months, which was subsequently extended for an additional four months through July 31, 2015.2020. In connection with these Amendments, Dr. Bar-Or and Dr. Clift were awarded options to purchase 300,000 and 170,000 shares of our common stock, respectively, at an exercise price of $6.48 with 50% vesting upon grant and 50% after one year. On August 3 and July 31, 2015, we extended the Employment Agreements of Dr. Bar-Or and Dr. Clift, respectively, for one additional year, expiring July 31, 2016. In connection with these Amendments, Dr. Bar-Or and Dr. Clift were awarded options to purchase 300,000 and 170,000 shares of our common stock, respectively, at exercise prices of $2.60 and $2.68, respectively, with such options vesting on the date that we meet all endpoints in connection with the Ampion clinical trial as determined in the sole discretion of our Compensation Committee. On June 30, 2016, we cancelled these options (470,000 total) as the vesting was based on the outcome of the most recent Ampion trial. Dr. Clift’saddition, Mr. Stokely’s employment agreement expired on July 31, 2016. Based onamendment also provides for additional reimbursement of taxes paid by Mr. Stokely as a separation agreement between Dr. Cliftresult of commuting and the Company signed in fiscal 2016, the Company paid Dr. Clift $125,000 in March 2016 and $39,897 in August 2016. Also, per the separation agreement, Dr. Clift’s remaining options expired on July 31, 2017. On July 28, 2016, we extended the Employment Agreement of Dr. Bar-Or for one additional year, expiring July 31, 2017. On June 30, 2017, we extended the Employment Agreement of Dr. Bar-Or for one additional year, expiring July 31, 2018. relocation expense payments. We entered into an employment agreement with Mr. Gregory Gould, our former Chief Financial Officer,Ms. Holli Cherevka, COO, on June 10, 2014,September 19, 2017, which provided for an annual salary of $250,000, with an initial$200,000 and a term ending June 10, 2017.September 16, 2019. In connection with thisthe employment agreement, Mr. GouldMs. Cherevka was awarded an option200,000 options to purchase 300,000 shares of our common stockCommon Stock at an exercise price of $7.14$0.55, with 50% vesting annually over two years beginning on June 10, 2014.upon grant and 50% vesting one year from the effective start date of employment. We did not renew theentered into a new two-year employment agreement with Mr. Gould,Ms. Cherevka (the “Cherevka Employment Agreement” and collectively with the Macaluso Employment Agreement and the Stokely Employment Agreement, the “Executive Employment Agreements”) on September 16, 2019, which expired on June 10, 2017. provides for an annual salary of $280,000 and has a term ending September 16, 2021, subject to certain automatic renewal provisions. In connection with this new employment agreement, Ms. Cherevka was awarded 200,000 options to purchase Common Stock at an exercise price of $0.51, with 50% vesting upon grant and 50% vesting one year from the effective start date of employment. Each officer is eligible to receive a discretionary annual bonus each year that will be determined by the Compensation Committee of the Board of Directors based on individual achievement and Company performance objectives established by the Compensation Committee. BonusesIncluded in those objectives, as applicable for the executive level officersresponsible officer, are contingent upon the Company filing the Ampion BLA(i) obtaining successful clinical trial results, and (ii) preparation and compliance with the FDA and raising additional capital to meeting the Company’s operating needs as well as final Compensation Committee evaluationa fiscal budget. The targeted amount of the executive’s performance. Theannual bonus accrual for Mr. Macaluso, Mr. Stokely, and Ms. Cherevka is 50% of the executives is based on their work and achievement andapplicable base salary, although the Company’s performance during fiscal 2016 and 2015 which willactual bonus may be accumulated into the final achievement whenhigher or if the BLA is filed in fiscal 2017. The employment agreements for Dr. Bar-Or and Dr. Clift provided for an initial grant of stock options in the amount of 700,000 (subsequently reduced to 400,000) and 365,000 options, respectively. Each option is exercisable for a period of ten years at an exercise price per share equal to the quoted closing price of our common stock on August 11, 2010.
lower. Potential Payments Upon Termination or Change in Control IfUnder each of our Executive Employment Agreements, the employmentrespective member of Dr. Bar-Or or Greg Gouldour executive team (each, an “Executive”), if their employment is terminated at our election at any time,by the Company without Cause or by the Executive for reasons other than death, disability, cause (as defined in the agreement) or a voluntary resignation, or if an officer terminates his employment for good reason, the officer in question shallGood Reason, will be entitled to receive a lump sum severance payment equal to two timessix months of his or her base salary and of the continued payment of premiums for continuation of the officer’s health and welfare benefits pursuant to COBRA or otherwise, for a period of two years fromin effect at the date of termination, subjectless applicable withholding and certain offsetting payments (including offsets for any and all compensation that he or she may receive from other employment subsequent to earlier discontinuationhis or her employment with the Company pursuant to a duty to mitigate such severance payment). In addition, the vesting and exercisability of all then outstanding equity awards (excluding the performance-based awards) held by our Executive will accelerate in full. Any performance-based award held by such
Executive shall become vested and exercisable only if the officerapplicable performance-based criteria are satisfied at the end of the applicable period relating to such award, at which time such performance-based award shall become vested and exercisable on a pro-rated basis by multiplying such award by a fraction, the numerator of which is eligiblethe number of full months such executive was employed by the Company during the applicable performance period, and the denominator of which is the total number of months in such performance period. Any performance-based award for comparable coverage from a subsequent employer. Mr. Macaluso iswhich the performance criteria are not entitled to anysatisfied within the applicable performance period shall terminate at the end of such termination payments pursuant to the terms of his employment agreement.period. All severance payments, less applicable withholding,taxes and withholdings, are subject to the officer’sour Executive’s execution and delivery of a general release of us and our subsidiaries and affiliates and each of their officers, directors, employees, agents, successors and assigns in a form acceptable to us, and a reaffirmation ofis further conditioned upon complying with the officer’s continuing obligationconfidentiality, non-solicitation, non-competition, intellectual property and post-termination cooperation obligations under the propriety information and inventions agreement (or an agreement without that title, but which pertains to the officer’s obligations generally, without limitation, to maintain and keep confidential all of our proprietary and confidential information, and to assign all inventions made by the officer to us, which inventions were made or conceived during the officer’s employment).his employment agreement. If the employment is terminated by the Company for cause,Cause or by the Executive without Good Reason, no severance shall be payable by us. “Good Reason” means: means, without our Executive’s written consent: | ·● | a material reduction of his or her compensation (except where there is a general reduction also applicable to the other members of the senior executive team); or |
| ● | a material reduction in the officer’shis or her overall responsibilities or authority or scope of duties;duties (it being understood that the occurrence of a change in control shall not, by itself, necessarily constitute a reduction in his or her responsibilities or authority). |
“Cause” means, in the sole discretion of a majority of the Board: | ·● | Our Executive’s failure or refusal to substantially perform his or her duties; |
| ● | personal or professional dishonesty that could reasonably be expected to have a material reductionmaterially adverse impact on the financial interests or business reputation of the officer’s compensation; orCompany; |
| ·● | relocationincompetence, willful misconduct, breach of fiduciary duty (including duties involving personal profit); |
| ● | breach of the officer to a facilityCompany’s Code of Business Conduct and Ethics and personnel policies or location not within 40 milescompliance policies; |
| ● | material violation of the state capitol buildingSarbanes-Oxley requirements for officers of public companies that in Denver, Colorado.the reasonable opinion of the Board will likely cause substantial financial harm or substantial injury to the reputation of the Company; |
“Cause” means:
| ·● | willful malfeasancewillfully engaging in actions that in the reasonable opinion of the Board will likely cause substantial financial harm or willful misconduct in connection with employment;substantial injury to the business reputation of the Company; |
| ·● | convictionwillful violation of any law, rule, or entry of a plea of guiltyregulation, ornolo contendere to, any crime other final cease-and-desist order (other than aroutine traffic violationviolations or misdemeanor;similar offenses); |
| ·● | willful and deliberate violation of a company policy; |
| · | unintended but material breach of any written policy applicable to all employees which is not cured within 30 business days; |
| · | the unauthorized use or disclosure of any trade secret, proprietary, information or trade secretsconfidential information of the company;Company (or any other party as to which our Executive owes an obligation of nondisclosure as a result of his or her relationship with the Company); |
| ·● | willfulfailure to follow the reasonable and deliberatelawful directives of the CEO or the Board pertaining to his or her duties with the Company; |
| ● | commission of an act of fraud, embezzlement, or misappropriation by our Executive with respect to his or her relations with the Company or any of its employees, customers, agents, or representatives; or |
| ● | any material breach of the employment agreement; |
| · | any other material breachprovision of the employment agreement which is not cured within 30 business days; orwith our Executive. |
| · | gross negligence in the performance of duties. |
“Change in Control” means the occurrence of any of the following events:
| · | The acquisition by an individual, entity, or group, other than Ampio or any of its subsidiaries, of beneficial ownership of 50% or more of the combined voting power or economic interests of the then outstanding voting securities of Ampio entitled to vote generally in the election of directors (excluding any issuance of securities by Ampio in a transaction or series of transactions made principally for bona fide equity financing purposes); |
| · | The acquisition of Ampio by another entity by means of any transaction or series of related transactions to which Ampio is party (including, without limitation, any stock acquisition, reorganization, merger or consolidation but excluding any issuance of securities by Ampio in a transaction or series of related transactions made principally for bona fide equity financing purposes) other than a transaction or series of related transactions in which the holders of the voting securities of Ampio outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, as a result of shares in Ampio held by such holders prior to such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of Ampio or such other surviving or resulting entity (or if Ampio or such other surviving or resulting entity is a wholly-owned subsidiary immediately following such acquisition, its parent); or |
| · | The sale or other disposition of all or substantially all of the assets of Ampio in one transaction or series of related transactions. |
In the event of a Change of Control, all outstanding stock options, restricted stock and other stock-based grants held by Mr. Macaluso, Dr. Bar-Or and Mr. Gould become fully vested and exercisable, and all such stock options remain exercisable from the date of the Change in Control until the expiration of the term of such stock options.
Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the record holders of the common stock of Ampio immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of Ampio immediately following such transaction or series of transactions.
TheOur employment agreements with our Executives do not provide for the payment of a “gross-up” payment under Section 280G of the Internal Revenue Code.
The following table provides estimatesa summary of potential payments upon termination or change in control for each of the potential severance and other post-termination benefits that each of Dr. Bar-Or, Mr. Macaluso, and Mr. Gould would have been entitled to receive assuming their respective employment was terminatednamed executive officers as of December 31, 2016 for2020 (rounded to the reason set forth in each of the columns.nearest thousand): | | | | | | | | | | | | | | | Cause; Without Good | | Without Cause; Good | | | | | | | Recipient and Benefit | | Reason; | | Reason | | Death; Disability | | Change in Control | | | | | | | | | | | | | | Michael Macaluso | | | | | | | | | | | | | Salary | | $ | — | | $ | 150,000 | | $ | — | | $ | — | Stock Options (1) | | | — | | | 734,000 | | | — | | | — | Total | | $ | — | | $ | 884,000 | | $ | — | | $ | — | | | | | | | | | | | | | | Daniel G. Stokely | | | | | | | | | | | | | Salary | | $ | — | | $ | 142,500 | | $ | — | | $ | — | Stock Options (1) | | | — | | | 494,000 | | | — | | | — | Total | | $ | — | | $ | 636,500 | | $ | — | | $ | — | | | | | | | | | | | | | | Holli Cherevka | | | | | | | | | | | | | Salary | | $ | — | | $ | 140,000 | | $ | — | | $ | — | Stock Options (1) | | | — | | | 699,000 | | | — | | | — | Total | | $ | — | | $ | 839,000 | | $ | — | | $ | — |
| Recipient and Benefit | | Cause; Without good reason; | | | Without Cause; Good reason | | | Death; Disability | | | Change in Control | | | | | | | | | | | | | | | | | Michael Macaluso | | | | | | | | | | | | | | | | | | Stock Options (2) | | $ | - | | | $ | - | | | $ | - | | | $ | - | | | Total | | $ | - | | | $ | - | | | $ | - | | | $ | - | | | | | | | | | | | | | | | | | | | | | David Bar-Or, M.D. | | | | | | | | | | | | | | | | | | Salary | | $ | - | | | $ | 600,000 | | | $ | - | | | $ | - | | | Stock Options (2) | | $ | - | | | $ | - | | | $ | - | | | $ | - | | | Value of health benefits provided after termination (1) | | $ | - | | | $ | 27,246 | | | $ | - | | | $ | - | | | Total | | $ | - | | | $ | 627,246 | | | $ | - | | | $ | - | | | | | | | | | | | | | | | | | | | | | Gregory Gould | | | | | | | | | | | | | | | | | | Salary | | $ | - | | | $ | 500,000 | | | $ | - | | | $ | - | | | Stock Options (2) | | $ | - | | | $ | - | | | $ | - | | | $ | - | | | Value of health benefits provided after termination (1) | | $ | - | | | $ | 35,718 | | | $ | - | | | $ | - | | | Total | | $ | - | | | $ | 535,718 | | | $ | - | | | $ | - | |
| (1) | The value of such benefits is determined based on the estimated cost of providing health benefits to the Named Executive Officer for a period of two years. |
| (2) | Amounts represent the intrinsic value (that is, the value based upon ourthe Company’s stock price on December 31, 20162020 of $.90$1.59 per share), minus the exercise price of the equity awards that would have become exercisable as of December 31, 2016. The unexercised options of these officers have a value higher than the stock price on December 31, 2016 of $.90 per share, therefore there is no intrinsic value. 2020. |
Non-Employee Director Compensation
Our Compensation Committee established the following fees for payment to members of our Board of Directors or committees, as the case may be for the fiscal year ended December 31, 2016:
| | | Committee or Committees | | Cash or Common Stock Compensation | | | | | | | | | | Board of Directors Annual Retainer: | | | | | | | Chairman | | | | $ | 20,000 | | | Each non-employee director | | | | $ | 20,000 | | | Board of Directors Meeting Fees: | | | | | | | | Each meeting attended in-person | | | | $ | 1,500 | | | Each meeting attended via telephone or Internet | | | | $ | 1,000 | | | Committee Annual Retainer: | | | | | | | | Chairman of each committee | | Audit; Compensation; Nominating and Governance | | $ | 20,000 | | | Each non-chair member | | Audit | | $ | 12,000 | | | Each non-chair member | | Compensation; Nominating and Governance | | $ | 10,000 | | | Committee Chairman Meeting Fees: | | | | | | | | Each meeting attended in-person | | Audit; Compensation; Nominating and Governance | | $ | 2,500 | | | Each meeting attended via telephone or Internet | | Audit; Compensation; Nominating and Governance | | $ | 1,500 | | | Committee Member Meeting Fees: | | | | | | | | Each meeting attended in-person | | Audit; Compensation; Nominating and Governance | | $ | 1,500 | | | Each meeting attended via telephone or Internet | | Audit; Compensation; Nominating and Governance | | $ | 1,000 | | | Annual Stock Award: | | | | $ | 20,000 | |
In December 2015, the Compensation Committee amended the Non-Employee Director Compensation for fiscal 2016 by increasing the annual stock award to $20,000 and granting each Director options to purchase 30,000 shares of our stock on the date of our annual shareholder meeting of stockholders, vesting monthly over the succeeding twelve months.
Director Compensation for 2016
The table below summarizes the compensation paid by us to non-employee directors during the year ended December 31, 2016.
| Name | | Fees Earned or Paid in Cash | | | Stock Option Awards (1) | | | Stock Awards (2) | | | All Other
Compensation | | | Total | | | | | | | | | | | | | | | | | | | | Philip H. Coelho | | $ | 89,000 | | | $ | - | | | $ | 20,000 | | | $ | - | | | $ | 109,000 | | | | | | | | | | | | | | | | | | | | | $ | - | | | Richard B. Giles | | $ | 80,000 | | | $ | - | | | $ | 20,000 | | | $ | - | | | $ | 100,000 | | | | | | | | | | | | | | | | | | | | | | | | | David Stevens, PhD | | $ | 66,000 | | | $ | - | | | $ | 20,000 | | | $ | - | | | $ | 86,000 | |
| (1) | At December 31, 2016, Messrs. Coelho, Giles and Dr. Stevens held options to acquire 595,554, 680,000 and 255,000 shares of common stock, respectively. On January 7, 2017, the date of our annual meeting, each of the directors received 30,000 options with an exercise price of $0.95 that vest over 12 months and have a ten year term. | | (2) | Annual stock award. In January 2016, each of Messrs. Coelho, Giles and Dr. Stevens was awarded 6,042 shares of common stock pursuant to the 2010 Plan, at a price of $3.31 per share equivalent to $20,000, which was the closing price of our common stock on the date of grant (January 4, 2016). |
REPORT OF THE AUDIT COMMITTEE The Audit Committee evaluates auditor performance, manages relations with the Company’s independent registered public accounting firm, and evaluates policies and procedures relating to internal control systems. The Audit Committee operates under a written Audit Committee Charter that has been adopted by the Board, a copy of which is available on the Company’s website. All members of the Audit Committee currently meet the independence and qualification standards for Audit Committee membership set forth in the listing standards provided by the NYSE MKT LLCAmerican and the SEC. The Audit Committee members are not professional accountants or auditors. The members’ functions are not intended to duplicate or to certify the activities of management and the independent registered public accounting firm. The Audit Committee serves a board-level oversight role in which it provides advice, counsel and direction to management and the auditors on the basis of the information it receives, discussions with management and the auditors, and the experience of the Audit Committee’s members in business, financial and accounting matters. The Audit Committee oversees the Company’s financial reporting process on behalf of the Board. The Company’s management has the primary responsibility for the financial statements and reporting process, including the Company’s system of internal controls. In fulfilling its oversight responsibilities, the Audit Committee reviewed and discussed with management the audited financial statements included in the Annual Report on Form 10-K for the fiscal year ended December 31, 2016.2020. This review included a discussion of the quality and the acceptability of the Company’s financial reporting, including the nature and extent of disclosures in the financial statements and the accompanying notes. The Audit Committee also reviewed the progress and results of the testing of the design and
effectiveness of itsthe Company’s internal controls over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act of 2002. The Audit Committee also reviewed with the Company’s independent registered public accounting firm, which is responsible for expressing an opinion on the conformity of the audited financial statements with accounting principles generally accepted in the United States of America, their judgments as to the quality and the acceptability of the Company’s financial reporting and such other matters as are required to be discussed withby the Committee under generally accepted auditing standards, including Statement on Auditing Standards No. 61, as adopted byapplicable requirements of the Public Company Accounting Oversight Board.Board (“PCAOB”) and the SEC. The Audit Committee has received the written disclosures and the letter from the independent registered public accounting firm required by the Public Company Accounting Oversight Board.PCAOB regarding the independent registered public accounting firm’s communications with the Audit Committee concerning independence. The Audit Committee discussed with the independent registered public accounting firm their independence from management and the Company, including the matters required by the applicable rulesrequirements of the Public Company Accounting Oversight Board.Board and the SEC. In addition to the matters specified above, the Audit Committee discussed with the Company’s independent registered public accounting firm the overall scope, plans and estimated costs of their audit. The Committee met with the independent registered public accounting firm periodically, with and without management present, to discuss the results of the independent registered public accounting firm’s examinations, the overall quality of the Company’s financial reporting and the independent registered public accounting firm’s reviews of the quarterly financial statements, and drafts of the quarterly and annual reports. In reliance on the reviews and discussions referred to above, the Audit Committee recommended to the Board of Directors that the Company’s audited financial statements should be included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016.2020. | | | Submitted by the Audit Committee of the Board of Directors | | | | Richard B. Giles | | Philip H. Coelho | | David R. Stevens, Ph.D. |
The foregoing Report of the Audit Committee does not constitute soliciting material and should not be deemed filed or incorporated by reference into any of our other filings under the Securities Act of 1933, as amended, or the Exchange Act, except to the extent we specifically incorporate this report by reference therein. CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS Related Party Transactions In addition toOther than the director and executive compensation arrangements discussed above inwithin the “Executive Compensation”, section, we or Life Sciences have not been a party to the followingany transactions since January 20141, 2019 in which the amount involved exceeded or will exceed the lesser of $120,000 or 1% of the average of our total assets at year-end for the last two completed fiscal years, and in which any director, executive officer, or holder of more than 5% of any class of our voting stock, or any member of the immediate family of or entities affiliated with any of them, had or will have a material interest.
Ampio entered into a sponsored research agreement with Trauma Research LLC or, TRLLC, an entity controlled by our director and Chief Scientific Officer, Dr. Bar-Or, on September 1, 2009, which has been amended seven times with the last amendment occurring in June of 2017. Under the amended terms of the research agreement, Ampio provided personnel with an equivalent value of $325,000 per year. Pursuant to an amendment in March 2014, Ampio also agreed to pay a sum of $725,000 which is being amortized over the contractual term of 60.5 months and is divided between current and long-term on the balance sheet. In return, TRLLC agreed to assign any intellectual property rights it develops on our behalf under the research agreement and undertake additional activities to support Ampio’s commercial activities and business plan. In June 2017 we entered into an addendum to the agreement that terminated the agreement effective July 5, 2017.
Immediately prior to the Merger on March 2, 2010, Chay Enterprises, Inc. or Chay, accepted subscriptions for an aggregate of 1,325,000 shares of common stock from six officers and employees of Life Sciences, for a purchase price of $150,000. The purchase price was advanced to the six officers and employees by Chay at the time the subscriptions were accepted. These shares were issued immediately before the closing of the Merger but after the shareholders of Chay had approved the merger. The advances are non-interest bearing and due on demand and are classified as a reduction to stockholders’ equity. During 2012 and 2011, advances of $37,000 and $23,000 were repaid to the Company, respectively. As of December 31, 2016, $25,000 of advances to stockholders remained outstanding.
In June 2017, Ampio terminated the shared services agreement with Aytu. As of June 30, 2017, Aytu owed Ampio $65,000 under this agreement. For the six months ended June 30, 2017 and 2016, the total shared overhead cost was $104,000 and $131,000, respectively.
Indemnification of Officers and Directors We have entered into indemnification agreements with each of our directors and executive officers. The indemnification agreements and our certificateCertificate of incorporationIncorporation and bylawsBylaws require us to indemnify our directors and executive officers to the fullest extent permitted by Delaware law. 27 Policies and Procedures for Related Party Transactions
We have adopted a formal written policy that our executive officers, directors, nominees for election as directors, beneficial owners of more than 5% of any class of our common stock and any member of the immediate family of any of the foregoing persons, are not permitted to enter into a related party transaction with us without the prior consent of our Audit Committee, subject to the pre-approval exceptions described below. If advance approval is not feasible then the related party transaction will be considered at the Audit Committee’s next regularly scheduled meeting. In approving or rejecting any such proposal, our Audit Committee is to consider the relevant facts and circumstances available and deemed relevant to our Audit Committee, including, but not limited to, whether the transaction is on terms no less favorable than terms generally available to an unaffiliated third party under the same or similar circumstances and the extent of the related party’s interest in the transaction. Our Board of Directors has delegated to the chair of our Audit Committee the authority to pre-approve or ratify any request from us to enter into a transaction with a related party, in which the amount involved is less than $120,000 and where the chair is not the related party. Our Audit Committee has also reviewed certain types of related party transactions that it has deemed pre-approved even if the aggregate amount involved will exceed $120,000, including employment of executive officers, director compensation, certain transactions with other organizations, transactions where all stockholders receive proportional benefits, transactions involving competitive bids, regulated transactions and certain banking-related services.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The following table sets forth information regarding beneficial ownership of our common stockCommon Stock as of July 31, 2017,June 15, 2021 by: | ·● | each person or group of affiliated persons known by us to be the beneficial owner of more than 5% of our common stock;Common Stock; |
| | | | ·● | each of our Named Executive Officers;named executive officers; |
| | | | ·● | each of our directors;directors and director nominees; and |
| | | | ·● | all executive officers and directors as a group. |
We have determined beneficial ownership in accordance with SEC rules. The information does not necessarily indicate beneficial ownership for any other purpose. Under these rules, the number of shares of common stockCommon Stock deemed outstanding includes shares issuable upon exercise of options and warrants held by the respective person or group which may be exercised or converted within 60 days after July 31, 2017. June 15, 2021. For purposes of calculating each person’s or group’s percentage ownership, stock options and warrants exercisable within 60 days after July 31, 2017June 15, 2021 are included for that person or group but not the stock options debentures, or warrants of any other person or group. Applicable percentage ownershipOwnership is based on 68,232,409196,461,146 shares of common stockCommon Stock outstanding on June 15, 2021. The Company is not aware of any arrangements that have resulted, or may at July 31, 2017. a subsequent date result, in a change of control of the Company. Unless otherwise indicated and subject to any applicable community property laws, to our knowledge, each stockholder named in the following table possesses sole voting and investment power over the shares listed. Unless otherwise noted below, the address of each stockholder listed on the table is c/o Ampio Pharmaceuticals, Inc., 373 Inverness Parkway, Suite 200, Englewood, Colorado 80112.80112. | | | | | | | | Number of Shares Beneficially | | Percentage of Shares | | Name and Address of Beneficial Owner | | Owned | | Beneficially Owned | | 5% Stockholders | | | | | | CVI Investments, Inc. (1)
C/O Heights Capital Management, Inc.
101 California Street, Suite 3250
San Francisco, CA 94111 | | 12,454,835 | | 6.32 | % | Bruce E. Terker (2)
950 W. Valley Road, Suite 2900
Wayne, PA 19087 | | 11,525,331 | | 5.87 | % | Directors and Name Executive Officers | | | | | | Michael Macaluso (3) | | 3,121,752 | | 1.58 | % | David Bar-Or (4) | | 481,800 | | 0.24 | % | Richard B. Giles (5) | | 1,095,121 | | 0.56 | % | Philip H. Coelho (6) | | 829,721 | | 0.42 | % | Holli Cherevka (7) | | 707,168 | | 0.36 | % | David R. Stevens (8) | | 501,312 | | 0.25 | % | Daniel G. Stokely (9) | | 350,815 | | 0.18 | % | | | | | | | Directors and executive officers as a group | | 7,087,689 | | 3.59 | % |
| (1) | 28 | Based on a Schedule 13G/A filed by CVI Investments, Inc. (“CVI Investments”) and Heights Capital Management, Inc. (“Heights Capital”) with the SEC on February 14, 2019. The amount indicated in the table includes 6,250,000 shares of Common Stock issued as a result of a warrant exercise on October 29, 2019 and also includes warrants to purchase 600,000 shares that are exercisable within 60 days of June 15, 2021. Based on the above Schedule 13G/A, CVI Investments and Heights Capital have shared voting and dispositive power with respect to the shares. |
| Name of Beneficial Owner | | Number of Shares
Beneficially Owned | | | Percentage of Shares Beneficially Owned | | | CVI Investments Inc. (1) | | | 7,877,886 | | | | 10.1 | % | | Bruce Terker (2) | | | 4,473,330 | | | | 5.8 | % | | Michael Macaluso (3) | | | 2,836,752 | | | | 3.7 | % | | David Bar-Or (4) | | | 1,200,000 | | | | 1.5 | % | | Richard B. Giles (5) | | | 970,848 | | | | 1.2 | % | | Philip H. Coelho (6) | | | 663,781 | | | | 0.9 | % | | Gregory A. Gould (7) | | | 550,000 | | | | 0.7 | % | | David R. Stevens (8) | | | 313,289 | | | | 0.4 | % | | Thomas Chilcott (9) | | | 58,333 | | | | 0.1 | % | | | | | | | | | | | | All executive officers and directors (seven people) | | | 6,534,670 | | | | 8.4 | % |
| (1)(2) | Based solely on a Schedule 13G13G/A filed by Bruce E. Terker, Ballyshannon Partners, L.P., Ballyshannon Family Partnership, L.P., Insignia Partners, L.P. and Odyssey Capital Group, L.P. (collectively the “Bruce E. Terker and Related Companies”) with the SEC on February 10, 2017 by CVI Investments, Inc.January 20, 2021, reporting beneficial ownership as of December 31, 2016.2020. Based on the above Schedule 13G/A, Bruce E. Terker and Related Companies have shared voting and dispositive power with respect to the shares. |
| (3) | (2) | Based solely on a Schedule 13G filed on June 14, 2017 by Bruce Terker reporting beneficial ownership asIncludes options to purchase 1,335,000 shares that are exercisable within 60 days of June 7, 2017.15, 2021. |
| (3)(4) | Includes an aggregateoptions to purchase 389,000 shares that are exercisable within 60 days of 1,050,000 shares of common stock issuable to Mr. Macaluso by virtue of (i) exercise of currently exercisable stock options, (ii) exercise of warrants, and (iii) his service as a non-management director and currently as an officer.June 15, 2021. |
| (4)(5) | Includes 1,200,000options to purchase 728,000 shares that are exercisable within 60 days of common stock which Dr. Bar-Or has the right to acquire through the exercise of stock options. Excludes 530,700 shares of common stock beneficially owned by Raphael Bar-Or, Dr. Bar-Or’s son, as to which Dr. Bar-Or disclaims beneficial ownership.June 15, 2021. |
| (5)(6) | Includes 702,500options to purchase 626,221 shares that are exercisable within 60 days of common stock issuable to Mr. Giles by virtue of (i) exercise of currently exercisable stock options, and (ii) exercise of warrants.June 15, 2021. |
| (6)(7) | Includes 618,054options to purchase 707,168 shares that are exercisable within 60 days of common stock issuable to Mr. Coelho on exercise of currently exercisable stock options.June 15, 2021. |
| (7)(8) | Includes 550,000options to purchase 366,750 shares that are exercisable within 60 days of common stock issuable to Mr. Gould on exercise of currently exercisable stock options.June 15, 2021. |
| (8) | Includes 277,500 shares of common stock issuable to Dr. Stevens on exercise of currently exercisable stock options. |
| (9) | Includes 58,333options to purchase 322,500 shares that are exercisable within 60 days of common stock issuable to Mr. Chilcott on exercise of currently exercisable stock options.June 15, 2021. |
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires our executive officers, directors and persons who beneficially own greater than 10% of a registered class of its equity securities to file certain reports with the SEC with respect to ownership and changes in ownership of the Common Stock and our other equity securities. Prior to our listing on the NYSE MKT LLC, our common stock was listed on the NASDAQ Capital market and was previously registered pursuant to Section 15(d) of the Exchange Act. Upon our listing on the NASDAQ Capital Market, our executive officers, directors and greater than 10% stockholders became subject to the filing obligations described in Section 16(a).
Other than as described above, none of our executive officers or directors engaged in any transaction that would have been required to be reported under Section 16(a) of the Exchange Act during the period starting on the date the reports were originally due and ending on the date such reports were filed. To our knowledge, no shareholder beneficially owns more than 10% of our common stock.
STOCKHOLDER PROPOSALS Stockholder proposals, including nominations of persons for election to our Board of Directors, will be considered for inclusion in the Proxy Statement for the 20182022 Annual Meeting in accordance with Rule 14a-8 under the Exchange Act, if they are received by the Secretary of the Company, on or before May 1, 2018.March 2, 2022. If the date of the annual meeting is moved by more than 30 days from the date contemplated at the time of the previous year’s proxy statement, then notice must be received within a reasonable time before we begin to print and send proxy materials. If that happens, we will publicly announce the deadline for submitting a proposal in a press release or in a document filed with the SEC. Stockholders who intend to present a proposal, including nominations of persons for election to our Board of Directors, at the 20182022 Annual Meeting of Stockholders without inclusion of such proposal in our proxy materials for the 20182022 Annual Meeting are required to provide notice of such proposal between April 16, 2022 and May 19, 2018 and June 16, 2018,2022, assuming that the 20182022 Annual Meeting is held within 30 days from September 16, 2018.of August 14, 2022. If the meeting is advanced by more than 30 days prior to or delayed by more than 30 days after the anniversary of the preceding year’s annual meeting, notice must be delivered prior to the later of (a) the 90th day before the annual meeting or (b) the 10th day after which announcement of the meeting day is first made, but no earlier than 120 days prior to the annual meeting. We reserve the right to reject, rule out of order, or take other appropriate action with respect to any proposal that does not comply with these and other applicable requirements. Proposals and notices of intention to present proposals at the 20172022 Annual Meeting should be addressed to Corporate Secretary of Ampio Pharmaceuticals, Inc., 373 Inverness Parkway, Suite 200, Englewood, Colorado 80112. HOUSEHOLDING OF PROXY MATERIALS In some cases, only one copy of this Proxy Statement or our 20162021 Annual Report is being delivered to multiple stockholders sharing an address unless we have received contrary instructions from one or more of the stockholders. We will deliver promptly, upon written or oral request, a separate copy of this Proxy Statement or such Annual Report to a stockholder at a shared address to which a single copy of the document was delivered. Stockholders sharing an address who are receiving multiple copies of proxy statements or annual reports may also request delivery of a single copy. To request separate or multiple delivery, or single copy delivery of these materials now or in the future, a stockholder may submit a written request to Corporate Secretary of Ampio Pharmaceuticals, Inc., 373 Inverness Parkway, Suite 200, Englewood, Colorado 80112 or an oral request at (720) 437-6500.
WHERE YOU CAN FIND ADDITIONAL INFORMATION We have filed reports, proxy statements and other information with the SEC. You may read and copy any document we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.W., Washington, D.C. 20549. You may obtain information on the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains a websitean Internet site that contains the reports, proxy and information statements, and other information weregarding issuers that file electronically with the SEC. The address of the SEC websitethat site ishttp://www.sec.gov. You may request, and we will provide at no cost, a copy of these filings,the proxy materials, including any exhibits to such filings, by writing or telephoning us at the following address: Corporate Secretary of Ampio Pharmaceuticals, Inc., 373 Inverness Parkway, Suite 200, Englewood, Colorado 80112 or an oral request at (720) 437-6500. You may also access these filings at our web site under the investor relations“Investors” link atwww.ampiopharma.com. OTHER MATTERS The Board of Directors knows of no other business that will be presented at the Annual Meeting. If any other business is properly brought before the Annual Meeting, it is intended that proxies in the enclosed form will be voted in respect thereof in accordance with the judgment of the persons voting the proxies. It is important that the proxies be returned promptly and that your shares be represented. Stockholders are urged to vote. Stockholders are urged to mark, date, execute and promptly return the accompanying proxy card in the enclosed envelope or vote these proxies by telephone at 1-800-690-6903 or by internet at www.proxyvote.com.www.proxyvote.com. | | | By Order of the Board of Directors | | | | /s/ Thomas E. Chilcott, III | | | Thomas E. Chilcott, III | | Secretary | | | | August 29, 2017
| | | | /s/ Daniel G. Stokely | | Daniel G. Stokely, Secretary | | | | June 30, 2021 | | Englewood, Colorado |
| 30 | VOTE BY INTERNET Before The Meeting - Go to www.proxyvote.com Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 p.m. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form. AMPIO PHARMACEUTICALS, INC. 373 INVERNESS PARKWAY, SUITE 200 ENGLEWOOD, CO 80112 During The Meeting - Go to www.virtualshareholdermeeting.com/AMPE2021 You may attend the meeting via the Internet and vote during the meeting. Have the information that is printed in the box marked by the arrow available and follow the instructions. VOTE BY PHONE - 1-800-690-6903 Use any touch-tone telephone to transmit your voting instructions up until 11:59 p.m. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you call and then follow the instructions. VOTE BY MAIL Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: D55406-P55808 KEEP THIS PORTION FOR YOUR RECORDS DETACH AND RETURN THIS PORTION ONLY THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. AMPIO PHARMACEUTICALS, INC. The Board of Directors recommends you vote FOR the following: For Withhold For All AllAllExcept ! ! ! 1. To elect five directors, nominated by our Board of Directors, to serve until our 2022 Annual Meeting of Stockholders and until their respective successors are duly elected and qualified or their earlier resignation or removal. Nominees: 01) 02) 03) 04) 05) Michael Macaluso David Bar-Or, M.D. Philip H. Coelho Richard B. Giles David R. Stevens, Ph.D. To withhold authority to vote for any individual nominee(s), mark "For All Except" and write the number(s) of the nominee(s) on the line below. For Against Abstain The Board of Directors recommends you vote FOR proposals 2 and 3. ! ! ! 2. To ratify the selection of Moss Adams LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2021. 3. To approve, on an advisory (non-binding) basis, the compensation of the Company's named executive officers as disclosed in the Proxy Statement. ! ! ! Note: To transact such other business as may properly come before the meeting or any adjournment(s) or postponement(s) thereof. Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer. Signature [PLEASE SIGN WITHIN BOX] Date Signature (Joint Owners) Date |
AMPIO PHARMACEUTICALS, INC. 373 INVERNESS PARKWAY, SUITE 200 ENGLEWOOD, CO 80112 VOTE BY INTERNET - www.proxyvote.com Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 P.M. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form. ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years. VOTE BY PHONE - 1-800-690-6903 Use any touch-tone telephone to transmit your voting instructions up until 11:59 P.M. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you call and then follow the instructions. VOTE BY MAIL Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: The Board of Directors recommends you vote FOR the following: For All Withhold All For All Except To withhold authority to vote for any individual nominee(s), mark “For All Except” and write the number(s) of the nominee(s) on the line below. 1. To elect five directors, nominated by our Board of Directors, to serve until our 2018 Annual Meeting of Stockholders and until their respective successors are duly elected and qualified or their earlier resignation or removal. Nominees: 01) Michael Macaluso 02) David Bar-Or, M.D. 03) Philip H. Coelho 04) Richard B. Giles 05) David R. Stevens, Ph.D. For Against Abstain The Board of Directors recommends you vote FOR proposals 2 and 3. 2. To ratify the selection of EKS&H LLLP as our independent registered public accounting firm for the fiscal year ending December 31, 2017. 3. To approve an amendment to the Company’s Certificate of Incorporation to increase the number of shares of common stock, par value $0.0001 per share, of the Company authorized for issuance thereunder from 100,000,000 shares to 200,000,000 shares. Note: To transact such other business as may properly come before the meeting or any adjournment(s) thereof. For address changes and/or comments, please check this box and write them on the back where indicated. Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer. Signature [PLEASE SIGN WITHIN BOX] Date Signature (Joint Owners) Date
| Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Notice and Proxy Statement and Form 10-K are available at www.proxyvote.com. D55407-P55808 AMPIO PHARMACEUTICALS, INC. Annual Meeting of Stockholders August 14, 2021 9:00 AM This proxy is solicited by the Board of Directors The stockholder(s) hereby appoint(s) Daniel G. Stokely and Michael Macaluso, or either of them, as proxies, each with the power to appoint his substitute, and hereby authorize(s) them to represent and to vote, as designated on the reverse side of this ballot, all of the shares of common stock of Ampio Pharmaceuticals, Inc. that the stockholder(s) is/are entitled to vote at the Annual Meeting of Stockholders to be held at 9:00 AM, MT on August 14, 2021, in a virtual format only via live webcast at www.virtualshareholdermeeting.com/AMPE2021, and any adjournment(s) or postponement(s) thereof. This proxy, when properly executed, will be voted in the manner directed herein. If no such direction is made, this proxy will be voted in accordance with the Board of Directors' recommendations. The proxyholders are authorized to vote in their discretion with respect to other matters which may come before the meeting. Continued and to be signed on reverse side |
Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Notice and Proxy Statement and Form 10-K are available at www.proxyvote.com.AMPIO PHARMACEUTICALS, INC. Annual Meeting of Stockholders September 16, 2017 10:00 AM This proxy is solicited by the Board of Directors The stockholder(s) hereby appoint(s) Thomas E. Chilcott, III and Michael Macaluso, or either of them, as proxies, each with the power to appoint his substitute, and hereby authorize(s) them to represent and to vote, as designated on the reverse side of this ballot, all of the shares of common stock of Ampio Pharmaceuticals, Inc. that the stockholder(s) is/are entitled to vote at the Annual Meeting of Stockholders to be held at 10:00 AM, MDTon September 16, 2017, at The Inverness Hotel and Conference Center, located at 200 Inverness Drive West, Englewood, CO 80112, and any adjournment or postponement thereof. This proxy, when properly executed, will be voted in the manner directed herein. If no such direction is made, this proxy will be voted in accordance with the Board of Directors’ recommendations.Address Changes/Comments: (If you noted any Address Changes/Comments above, please mark corresponding box on the reverse side.)Continued and to be signed on reverse side
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