S-8 1 phio_s8.htm REGISTRATION STATEMENT

As filed with the Securities and Exchange Commission on December 23, 2020

Registration No. 333-

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

 

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

 

phio pharmaceuticals corp.

(Exact name of registrant as specified in its charter)

 

Delaware
(State or Other Jurisdiction of Incorporation or Organization)
45-3215903
(I.R.S. Employer Identification No.)

 

Phio Pharmaceuticals Corp.

257 Simarano Drive, Suite 101

Marlborough, Massachusetts 01752

(508) 767-3861

(Address of Principal Executive Offices, Zip Code)

 

Phio Pharmaceuticals Corp. 2020 Long Term Incentive Plan
(Full title of the plan)

 

Gerrit Dispersyn, Dr. Med. Sc.

President & Chief Executive Officer

Phio Pharmaceuticals Corp.

257 Simarano Drive, Suite 101

Marlborough, Massachusetts 01752

(508) 767-3861

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

 

Copies to:

Ryan A. Murr

Gibson, Dunn & Crutcher LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105

(415) 393-8373

______________________________________________

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer ¨ Accelerated filer ¨
       
Non-accelerated filer þ Smaller reporting company þ
       
    Emerging growth company ¨
       
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ¨

 

 

 

   

 

 

CALCULATION OF REGISTRATION FEE

Title of Each Class of
Securities to be Registered
Amount to be
Registered (1)
Proposed
Maximum
Offering Price Per
Share
Proposed
Maximum
Aggregate
Offering Price
Amount of
Registration Fee
    Common Stock, par value $0.0001 per share 1,267,675 $2.50 (2) $3,169,187.50 (2) $345.76 (2)

 

(1)Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 also shall cover any additional shares of Common Stock in respect of the securities identified in the above table as a result of any stock dividend, stock split, recapitalization or other similar transaction.

 

(2)The proposed maximum offering price per share, the proposed maximum aggregate offering price and the amount of registration fee have been computed on the basis of the average high and low prices per share of the Common Stock reported on The Nasdaq Capital Market on December 21, 2020.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 

EXPLANATORY NOTE

 

On August 5, 2020, the board of directors of Phio Pharmaceuticals Corp. (the “Company”) approved the Phio Pharmaceuticals Corp. 2020 Long Term Incentive Plan (the “2020 Plan”), and such plan was subsequently approved by the Company’s stockholders on October 8, 2020. Pursuant to the terms of the 2020 Plan, the following shares of common stock of the Company, par value $0.0001 per share (the “Common Stock”) will be issuable under the 2020 Plan: (i) 1,200,000 shares of Common Stock; (ii) 54,307, which represents shares of Common Stock that remained available for grant under the 2012 Phio Pharmaceuticals Corp. Long Term Incentive Plan (formerly known as the RXi Pharmaceuticals Corporation 2012 Long Term Incentive Plan, and as amended, the “2012 Plan”) as of October 8, 2020; and (iii) 13,368, which represents shares of Common Stock subject to outstanding awards under the 2012 Plan as of October 8, 2020 that on or after October 8, 2020 are forfeited, terminated, expire or otherwise lapse without being exercised (to the extent applicable), or are settled in cash. This Registration Statement on Form S-8 (this “Registration Statement”) registers 1,200,000 shares of Common Stock issuable under the 2020 Plan and 67,675 shares of Common Stock previously issuable under the 2012 Plan as set forth in the preceding (i) and (ii).

 

Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

 

Item 1.

 

Plan Information*

 

Not required to be filed with this Registration Statement.

 

Item 2. Registrant Information and Employee Plan Annual Information*
   
Not required to be filed with this Registration Statement.

 

*Documents containing the information specified in Part I of Form S-8 have been and/or will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act. In accordance with the instructions of Part I of Form S-8, such documents will not be filed with the Securities and Exchange Commission (the “SEC”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute the prospectus as required by Section 10(a) of the Securities Act.

 

 

 

 

 

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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Incorporation of Certain Documents by Reference.

 

The following documents, which have heretofore been filed by the Company with the SEC pursuant to the Securities Act, and pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference herein and shall be deemed to be a part hereof:

 

(a)the Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on March 26, 2020;

 

(b)the Quarterly Reports filed on Form 10-Q for the quarters ended March 31, 2020, June 30, 2020, and September 30, 2020, as filed with the SEC on May 12, 2020, August 12, 2020, and November 10, 2020;

 

(c)the Current Reports on Form 8-K filed with the SEC on January 10, 2020, January 14, 2020, February 6, 2020, February 10, 2020, February 13, 2020, March 12, 2020, April 2, 2020, and October 13, 2020; and

 

(d)the Description of the Company’s Securities contained in the Company’s Registration Statement on Form 8-A filed with the SEC on December 19, 2016 (Commission File No. 001-36304), as Exhibit 4.13 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on March 26, 2020, including any amendment or report filed for the purpose of updating such description.

 

In addition, all documents subsequently filed by the Company with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Notwithstanding the foregoing, unless specifically stated to the contrary, none of the information that the Company discloses under Items 2.02 or 7.01 of any Current Report on Form 8-K (and corresponding information furnished under Item 9.01 or included as an exhibit thereto) that it may from time to time furnish to the SEC will be incorporated by reference into, or otherwise included in, this Registration Statement.

 

Any statement, including financial statements, contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or therein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 1.    Description of Securities.

 

Not applicable.

 

Item 2.    Interests of Named Experts and Counsel.

 

Not applicable.

 

 

 

 

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Item 3.    Indemnification of Directors and Officers.

 

Section 145 of the Delaware General Corporation Law (the “DGCL”) provides that a corporation may indemnify any current or former director, officer or employee or other individual against expenses, judgments, fines and amounts paid in settlement in connection with civil, criminal, administrative or investigative actions or proceedings, other than a derivative action by or in the right of the corporation, if the director, officer, employee or other individual acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe his or her conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification extends only to expenses incurred in connection with the defense or settlement of such actions, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s by-laws, disinterested director vote, stockholder vote, agreement or otherwise.

 

Our certificate of incorporation provides that we will indemnify to the fullest extent authorized or permitted by the DGCL or any other applicable law as now or hereafter in effect any person made, or threatened to be made, a defendant or witness to any action, suit or proceeding (whether civil, criminal or otherwise) by reason of the fact that he is or was a director of our corporation or by reason of the fact that such director, at our request, is or was serving any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity. Our certificate of incorporation also provides that no amendment or repeal of the certificate of incorporation will apply to or have any effect on any right to indemnification provided in the certificate of incorporation with respect to any acts or omissions occurring prior to such amendment or repeal.

 

As permitted by the DGCL, our bylaws, as amended, provide that we will indemnify to the fullest extent authorized or permitted by applicable law as now or hereafter in effect any person who was or is made, or is threatened to be made, a party or is otherwise involved in any action, suit or proceeding (whether civil, criminal, administrative or investigative), by reason of the fact that he (or a person for whom he is the legal representative) is or was a director or officer of our corporation, is or was serving at our request as a director, officer, employee, member, trustee or agent of another corporation or of a partnership, joint venture, trust, nonprofit entity or other enterprise.

 

Consequently, no director of the corporation will be personally liable to the corporation or its stockholders for monetary damages for any breach of fiduciary duty by such a director as a director. However, notwithstanding the preceding sentence, a director will be liable to the extent provided by Delaware law (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for payments of unlawful dividends or for unlawful stock repurchases or redemption, or (4) for any transaction from which the director derived an improper personal benefit.

 

We have entered into indemnification agreements with each of our executive officers and directors. These agreements provide that, subject to limited exceptions and among other things, we will indemnify each of our executive officers and directors to the fullest extent permitted by law and advance expenses to each indemnitee in connection with any proceeding in which a right to indemnification is available.

 

We also maintain insurance on behalf of any person who is or was our director, officer, trustee, employee or agent or serving at our request as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust, non-profit entity or other enterprise against any liability asserted against the person and incurred by the person in any such capacity, or arising out of his or her status as such.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted for directors, officers, or persons who control us, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

 

 

 

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Item 4.    Exemption from Registration Claimed.

 

Not applicable.

 

Item 5.    Exhibits.

 

See exhibits listed under the Exhibit Index below.

 

Item 6.    Undertakings.

 

1.       The Company hereby undertakes:

 

(a)To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i)To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii)To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

 

(iii)To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

 

provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Company pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement;

 

(b)That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and

 

(c)To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

 

 

 

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2.       The undersigned registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act, each filing of the Company’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

3.       Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to provisions, or otherwise, the Company has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

 

 

 

 

 

 

 

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EXHIBIT INDEX

 

Exhibit No. Description
4.1Amended and Restated Certificate of Incorporation of Phio Pharmaceuticals Corp. (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on November 19, 2018, File No. 001-36304).

 

4.2Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Phio Pharmaceuticals Corp. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on January 14, 2020, File No. 001-36304).

 

4.3Amended and Restated Bylaws of Phio Pharmaceutical Corp. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on October 13, 2020, File No. 001-36304).
  
5.1Opinion of Gibson, Dunn & Crutcher LLP.*
  
23.1Consent of BDO USA, LLP.*
  
23.2Consent of Gibson, Dunn & Crutcher LLP (incorporated by reference from Exhibit 5.1).*
  
24.1Power of Attorney (included on the signature pages hereof).*
  
99.1Phio Pharmaceuticals Corp. 2020 Long Term Incentive Plan.*

 

* Filed herewith.

 

 

 

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Marlborough, Massachusetts, on December 23, 2020.

 

PHIO PHARMACEUTICALS CORP.

(Registrant)

 

By: /s/Gerrit Dispersyn______________________________

Gerrit Dispersyn, Dr. Med. Sc.
President and Chief Executive Officer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Gerrit Dispersyn, Dr. Med. Sc. as attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her in his or her name, place and stead, in any and all capacities, in connection with the Registration Statement, including to sign and file in the name and on behalf of the undersigned as director or officer of the Company (1) any and all amendments or supplements (including any and all stickers and post-effective amendments) to the Registration Statement, with all exhibits thereto, and other documents in connection therewith, and (2) any and all additional registration statements, and any and all amendments thereto, relating to the same offering of securities as those that are covered by the Registration Statement that are filed pursuant to Rule 462(b) promulgated under the Securities Act with the SEC and any applicable securities exchange or securities self-regulatory body, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this Registration Statement and the foregoing power of attorney has been signed below by the following persons in the capacities and on the dates indicated.

 

         

Signature

 

Title

 

Date

     

/s/ Gerrit Dispersyn

Gerrit Dispersyn, Dr. Med. Sc.

 

President and Chief Executive Officer

(Principal Executive Officer and Principal Financial Officer)

  December 23, 2020
     

/s/ Caitlin Kontulis

Caitlin Kontulis

 

Vice President of Finance & Administration and Secretary

(Principal Accounting Officer)

  December 23, 2020
     

/s/Robert J. Bitterman

Robert J. Bitterman

  Director and Chairman of the Board   December 23, 2020
     

/s/Geert Cauwenbergh

Geert Cauwenbergh, Dr. Med. Sc.

  Director   December 23, 2020
     

/s/H. Paul Dorman

H. Paul Dorman

  Director   December 23, 2020
     

/s/Robert L. Ferrara

Robert L. Ferrara

  Director   December 23, 2020
     

/s/Jonathan E. Freeman

Jonathan E. Freeman, Ph.D.

  Director   December 23, 2020
     

/s/Curtis A. Lockshin

Curtis A. Lockshin, Ph.D.

  Director   December 23, 2020

 

 

 

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