Phio Pharmaceuticals Corp. 10-K

ITEM 9A. CONTROLS AND PROCEDURES Evaluation of Disclosure Controls and Procedures Our management, with the participation of our Chief Executive Officer (who is also acting as our principal financial officer) and our Principal Accounting Officer, evaluated the effectiveness of disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of the end of the period covered by this report to ensure that information that we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC rules and forms. Our disclosure controls and procedures are designed to provide reasonable assurance of achieving their objectives. We believe that a control system, no matter how well designed and operated, cannot provide absolute assurance that the objectives of the control system are met, and no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within a company have been detected. Based on the evaluation of our disclosure controls and procedures as of the end of the period covered by this report, management, with the participation of our Chief Executive Officer (who is also acting as our principal financial officer) and our Principal Accounting Officer, concluded that our disclosure controls and procedures were effective as of such date. Management’s Annual Report on Internal Control Over Financial Reporting Our management is responsible for establishing and maintaining adequate internal control over financial reporting. A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. There are inherent limitations in the effectiveness of any system of internal control, including the possibility of human error and the circumvention or overriding of controls. Accordingly, even effective internal controls can provide only reasonable assurances with respect to financial statement preparation. Further, because of changes in conditions, the effectiveness of internal control may vary over time. Our management assessed the effectiveness of our internal control over financial reporting as of December 31, 2021. In making this assessment, management used the criteria set forth in Internal Control – Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework). Based on this assessment, management, with the participation of our Chief Executive Officer (who is also acting as our principal financial officer) and our Principal Accounting Officer, concluded that, as of December 31, 2021, our internal control over financial reporting was effective. Attestation Report of the Registered Public Accounting Firm This Annual Report on Form 10-K provides only management’s report. As a smaller reporting company, we are not required to provide an attestation report by our independent registered public accounting firm regarding our internal control over financial reporting. 41 Changes in Internal Control Over Financial Reporting There have been no changes in our internal control over financial reporting that occurred during the year ended December 31, 2021 that have materially affected, or is reasonably likely to materially affect, our internal control over financial reporting. ITEM 9B. OTHER INFORMATION Our certificate of incorporation provides that the Court of Chancery of the State of Delaware is the exclusive forum for the following types of actions or proceedings: any derivative action or proceeding brought on behalf of the Company, any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Company’s stockholders, any action asserting a claim against the Company arising pursuant to any provision of the Delaware General Corporation Law or the Company’s certificate of incorporation or bylaws, or any action asserting a claim against the Company governed by the internal affairs doctrine. Despite the fact that our certificate of incorporation provides for this exclusive forum provision to be applicable to the fullest extent permitted by applicable law, Section 27 of the Securities Act and Exchange Act, creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder and Section 22 of the Securities Act, creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder. As a result, this provision of our certificate of incorporation would not apply to claims brought to enforce a duty or liability created by the Securities Act, Exchange Act, or any other claim for which the federal courts have exclusive jurisdiction. ITEM 9C. DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS Not applicable. 42 PART III ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE The information required by this Item will be incorporated by reference to the information contained in our Definitive Proxy Statement to be filed no later than 120 days after the fiscal year end of December 31, 2021. ITEM 11. EXECUTIVE COMPENSATION The information required by this Item will be incorporated by reference to the information contained in our Definitive Proxy Statement to be filed no later than 120 days after the fiscal year end of December 31, 2021. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS The information required by this Item will be incorporated by reference to the information contained in our Definitive Proxy Statement to be filed no later than 120 days after the fiscal year end of December 31, 2021. ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE The information required by this Item will be incorporated by reference to the information contained in our Definitive Proxy Statement to be filed no later than 120 days after the fiscal year end of December 31, 2021. ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES The information required by this Item will be incorporated by reference to the information contained in our Definitive Proxy Statement to be filed no later than 120 days after the fiscal year end of December 31, 2021. 43 PART IV ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES Financial Statements Our consolidated financial statements are set forth in Item 8 to this Annual Report on Form 10-K. Financial Statement Schedules Certain schedules are omitted because they are not applicable, or are not required by smaller reporting companies. Exhibits Exhibit Incorporated by Reference Herein Number Description Form Date 3.1 Amended and Restated Certificate of Incorporation of Phio Pharmaceuticals Corp. Current Report on Form 8-K (File No. 001-36304) November 19, 2018 3.2 Certificate of Amendment to the Amendment and Restated Certificate of Incorporation of Phio Pharmaceuticals Corp. Current Report on Form 8-K (File No. 001-36304) January 14, 2020 3.3 Amended and Restated Bylaws of Phio Pharmaceutical Corp. Current Report on Form 8-K (File No. 001-36304) October 13, 2020 4.1 Form of Warrant. Current Report on Form 8-K (File No. 001-36304) April 11, 2018 4.2 Form of Placement Agent Warrant. Current Report on Form 8-K (File No. 001-36304) April 11, 2018 4.3 Form of Warrant. Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333-221173) September 28, 2018 4.4 Form of Underwriter Warrant. Current Report on Form 8-K (File No. 001-36304) October 5, 2018 4.5 Form of Placement Agent Warrant. Current Report on Form 8-K (File No. 001-36304) November 19, 2019 44 4.6 Form of Warrant Current Report on Form 8-K (File No. 001-36304) February 6, 2020 4.7 Form of Warrant. Current Report on Form 8-K (File No. 001-36304) February 13, 2020 4.8 Form of Underwriter Warrant. Current Report on Form 8-K (File No. 001-36304) February 13, 2020 4.9 Form of Warrant. Current Report on Form 8-K (File No. 001-36304) April 2, 2020 4.10 Form of Common Stock Warrant. Current Report on Form 8-K (File No. 001-36304) January 25, 2021 4.11 Form of Placement Agent Warrant. Current Report on Form 8-K (File No. 001-36304) February 17, 2021 4.12 Description of Securities Registered Pursuant to Section 12(b) of the Securities Exchange Act of 1934.** Annual Report on Form 10-K (File. 001-36304) March 26, 2020 10.1 Patent and Technology Assignment Agreement between RXi Pharmaceuticals Corporation (formerly RNCS, Inc.) and Advirna, LLC, effective as of September 24, 2011. Registration Statement on Form S-1 (File No. 333-177498) October 25, 2011 10.2 Phio Pharmaceuticals Corp. 2020 Long Term Incentive Plan. * Registration Statement on Form S-8 (File No. 333-251670) December 23, 2020 10.3 Form of Restricted Stock Unit Award under the Company’s 2020 Long Term Incentive Plan. * Annual Report on Form 10-K (File. 001-36304) March 25, 2021 10.4 Phio Pharmaceuticals Corp. 2012 Long Term Incentive Plan. * Quarterly Report on Form 10-Q (File No. 001-36304) November 12, 2019 10.5 Form of Restricted Stock Unit Award under the Company’s 2012 Long Term Incentive Plan. * Amendment No. 2 to the Registration Statement on Form S-1 (File No. 333-177498) December 29, 2011 10.6 Form of Incentive Stock Option Award under the Company’s 2012 Long Term Incentive Plan, as amended. * Registration Statement on Form S-1 (File No. 333-191236) September 18, 2013 10.7 Form of Non-Qualified Stock Option Award under the Company’s 2012 Long Term Incentive Plan, as amended. * Registration Statement on Form S-1 (File No. 333-191236) September 18, 2013 45 10.8 RXi Pharmaceuticals Corporation Employee Stock Purchase Plan. * Registration Statement on Form S-8 (File No. 333-277013) August 24, 2018 10.9 Form of Indemnification Agreement. * Amendment No. 3 to the Registration Statement on Form S-1 (File No. 333-177498) January 23, 2012 10.10 Employment Agreement, dated April 24, 2017, between RXi Pharmaceuticals Corporation and Gerrit Dispersyn, Dr. Med. Sc. * Post-effective Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333-214199) May 4, 2017 10.11 Lease Agreement dated December 17, 2013 between RXi Pharmaceuticals Corporation and 257 Simarano Drive, LLC, Brighton Properties, LLC, Robert Stubblebine 1, LLC and Robert Stubblebine 2, LLC. Current Report on Form 8-K (File No. 000-54910) December 20, 2013 10.12 First Amendment to Lease dated January 22, 2019. Current Report on Form 8-K (File No. 001-36304) January 28, 2019 10.13 Purchase Agreement, dated as of August 7, 2019 by and between Phio Pharmaceuticals Corp. and Lincoln Park Capital Fund, LLC. Current Report on Form 8-K (File No. 001-36304) August 9, 2019 10.14 First Amendment to Purchase Agreement by and between Phio Pharmaceuticals Corp. and Lincoln Park Capital Fund, LLC. Registration Statement on Form S-1 (File No. 333-233584) August 30, 2019 10.15 Registration Rights Agreement, dated as of August 7, 2019, by and between Phio Pharmaceuticals Corp. and Lincoln Park Capital Fund, LLC. Current Report on Form 8-K (File No. 001-36304) August 9, 2019 10.16 Securities Purchase Agreement, dated February 4, 2020, by and between the Company and the Purchasers signatory therein. Current Report on Form 8-K (File No. 001-36304) February 6, 2020 10.17 Securities Purchase Agreement, dated March 31, 2020, by and between the Company and the Purchasers signatory therein. Current Report on Form 8-K (File No. 001-36304) April 2, 2020 10.18 Securities Purchase Agreement, dated January 21, 2021, by and between the Company and the Purchasers signatory therein. Current Report on Form 8-K (File No. 001-36304) January 25, 2021 10.19 Registration Rights Agreement, dated January 21, 2021, by and between the Company and the Purchasers signatory therein. Current Report on Form 8-K (File No. 001-36304) January 25, 2021 10.20 Securities Purchase Agreement, dated February 12, 2021, by and between the Company and the Purchasers signatory therein. Current Report on Form 8-K (File No. 001-36304) February 17, 2021 46 23.1 Consent of BDO USA, LLP, an Independent Registered Public Accounting Firm.** 31.1 Sarbanes-Oxley Act Section 302 Certification of Principal Executive Officer and Principal Financial Officer.** 32.1 Sarbanes-Oxley Action Section 906 Certification of Principal Executive Officer and Principal Financial Officer.** 101.INS Inline XBRL Instance Document.* 101.SCH Inline XBRL Taxonomy Extension Schema Document.* 101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document.* 101.DEF Inline XBRL Taxonomy Extension Definition Linkbase Document.* 101.LAB Inline XBRL Taxonomy Extension Label Linkbase Document.* 101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document.* 104 The cover page for this report, formatted in Inline XBRL (included in Exhibit 101).* _________________ * Indicates a management contract or compensatory plan or arrangement. ** Filed herewith. + Confidential treatment has been requested or granted for certain portions which have been blanked out in the copy of the exhibit filed with the Securities and Exchange Commission. The omitted information has been filed separately with the Securities and Exchange Commission. ITEM 16. FORM 10-K SUMMARY None. 47 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. PHIO PHARMACEUTICALS CORP. By: /s/ Gerrit Dispersyn Gerrit Dispersyn, Dr. Med. Sc. President and Chief Executive Officer (as Principal Executive and Financial Officer) Date: March 22, 2022 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. Signatures Title Date /s/ Gerrit Dispersyn Gerrit Dispersyn, Dr. Med. Sc. President, Chief Executive Officer and Director (Principal Executive Officer and Principal Financial Officer) March 22, 2022 /s/ Caitlin Kontulis Caitlin Kontulis Vice President of Finance and Administration and Secretary (Principal Accounting Officer) March 22, 2022 /s/ Robert J. Bitterman Robert J. Bitterman Director March 22, 2022 /s/ Geert Cauwenbergh Geert Cauwenbergh, Dr. Med. Sc. Director March 22, 2022 /s/ H. Paul Dorman H. Paul Dorman Director March 22, 2022 /s/ Robert L. Ferrara Robert L. Ferrara Director March 22, 2022 /s/ Jonathan E. Freeman Jonathan E. Freeman, Ph.D. Director March 22, 2022 /s/ Curtis A. Lockshin Curtis A. Lockshin, Ph.D. Director March 22, 2022 48