As filed
with the Securities and Exchange Commission on February 28, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PHIO PHARMACEUTICALS CORP.
(Exact
Name of Registrant as Specified in the Charter)
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Delaware
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45-3215903
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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257 Simarano Drive, Suite 101
Marlborough, MA
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01752
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(Address of principal executive offices)
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(Zip Code)
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2012 Phio Pharmaceuticals Corp. 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 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
Telephone: (415)393-8373
Facsimile: (415) 374 - 8430
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.
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Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☒
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Smaller reporting company ☒
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Emerging growth company ☐
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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
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Title of each class of
securities to be registered
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Amount
to be
registered (1)
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Proposed
maximum
offering price
per share (2)
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Proposed
maximum
aggregate
offering Price (2)
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Amount of
registration fee
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Common Stock,
par value $0.0001 per share (“Common Stock”), to be issued under the 2012 Phio Pharmaceuticals Corp. Long Term
Incentive Plan
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59,090
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$2.806
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$165,806.54
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$21.52
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___________________
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(1)
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Pursuant to Rule 416(a) under the Securities
Act of 1933, as amended, this Registration Statement also covers such additional shares of Common Stock as may be issued under
the 2012 Phio Pharmaceuticals Corp. Long Term Incentive Plan (the “2012 LTIP”) to prevent dilution from
stock splits, stock dividends and similar transactions.
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(2)
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Calculated pursuant to Rule 457(h) of the Securities Act of 1933, as amended, solely for
the purpose of computing the amount of the registration fee, on the basis of the average of the high and low prices of the
registrant’s Common Stock quoted on The Nasdaq Capital Market on February 27, 2020.
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EXPLANATORY NOTE
On January 10, 2020, the Company’s
Board of Directors approved a 1-for-55 reverse stock split of the Company’s outstanding common stock, which was effected
on January 15, 2020. The share and per share amounts for the periods incorporated by reference in this Registration Statement do
not give effect to the reverse stock split.
INCORPORATION OF CERTAIN INFORMATION
BY REFERENCE
PURSUANT TO GENERAL INSTRUCTION E OF FORM S-8
This Registration Statement has been filed
by Phio Pharmaceuticals Corp. (the “Registrant”) to register 59,090 additional shares of Common Stock to be
offered pursuant to the 2012 LTIP. Pursuant to Instruction E to Form S-8, the Registrant incorporates by reference the Registration
Statements on Form S-8 filed with the Securities and Exchange Commission on August 30, 2012 (File No. 333-183633), June 21, 2013
(File No. 333-189522), February 2, 2017 (File No. 333-215870) and August 24, 2018 (File No. 333-227013), together with all exhibits
filed therewith or incorporated herein by reference.
Item 8.
* Filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all 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 Marlborough, Massachusetts, on February 28, 2020.
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PHIO PHARMACEUTICS CORP.
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By: /s/ Gerrit Dispersyn
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Gerrit Dispersyn, Dr. Med. Sc.
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints Gerrit Dispersyn, Dr. Med. Sc. as attorney-in-fact and agent,
with full power of substitution and resubstitution, in any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, with full power to act alone, full
power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith,
as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent, or his substitute or substitutes, may do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/Gerrit Dispersyn
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President and Chief Executive Officer
(Principal Executive Officer and
Principal Financial Officer)
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February 28, 2020
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Gerrit Dispersyn, Dr. Med. Sc.
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/s/Caitlin Kontulis
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Vice President of Finance and
Administration and Secretary
(Principal Accounting Officer)
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February 28, 2020
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Caitlin Kontulis
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/s/ Robert J. Bitterman
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Director
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February 28, 2020
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Robert J. Bitterman
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/s/ Geert Cauwenbergh
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Director
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February 28, 2020
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Geert Cauwenbergh, Dr. Med. Sc.
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/s/ H. Paul Dorman
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Director
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February 28, 2020
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H. Paul Dorman
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/s/ Robert Ferrara
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Director
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February 28, 2020
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Robert Ferrara
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/s/ Jonathan Freeman
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Director
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February 28, 2020
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Jonathan E. Freeman, Ph.D.
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/s/ Curtis A. Lockshin
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Director
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February 28, 2020
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Curtis A. Lockshin, Ph.D.
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Exhibit 5.1
February 28, 2020
Phio Pharmaceuticals Corp.
257 Simarano Drive, Suite 101
Marlborough, Massachusetts 01752
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Re:
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Phio Pharmaceuticals Corp.—Registration Statement on Form S-8 of an additional 59,050 Shares of Common Stock (the “Shares”)
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Ladies and Gentlemen:
We have examined the Registration Statement
on Form S-8 (the “Registration Statement”) of Phio Pharmaceuticals Corp., a Delaware corporation (the “Company”),
filed on the date hereof with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities
Act of 1933, as amended (the “Securities Act”), in connection with the offering of an additional 59,090 Shares
reserved for issuance under the Phio Pharmaceuticals Corp. 2012 Long Term Incentive Plan, as amended and restated (the “Plan”).
We have examined the originals, or photostatic
or certified copies, of such records of the Company and certificates of officers of the Company and of public officials and such
other documents as we have deemed relevant and necessary as the basis for the opinions set forth below. In our examination, we
have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all
documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies.
Based upon the foregoing examination and
in reliance thereon, and subject to the assumptions stated and in reliance on statements of fact contained in the documents that
we have examined, we are of the opinion that the Shares issuable under the Plan, when issued in accordance with the terms of the
Plan, will be validly issued, fully paid and non-assessable.
We render no opinion herein as to matters
involving the laws of any jurisdiction other than the Delaware General Corporation Law (the “DGCL”). We are
not admitted to practice in the State of Delaware; however, we are generally familiar with the DGCL as currently in effect and
have made such inquiries as we consider necessary to render the opinions above. This opinion is limited to the effect of the current
state of the law of the DGCL and the facts as they currently exist. We assume no obligation to revise or supplement this opinion
in the event of future changes in such law or the interpretations thereof or such facts.
We consent to the filing of this opinion
as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP