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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported):
July 20, 2023
PHIO
PHARMACEUTICALS CORP.
(Exact name of registrant as specified in its
charter)
Delaware |
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001-36304 |
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45-3215903 |
(State or other jurisdiction of incorporation)
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(Commission File Number) |
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(I.R.S. Employer Identification No.) |
257 Simarano Drive, Suite 101
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Marlborough, Massachusetts |
01752 |
(Address of principal executive offices) |
(Zip Code) |
Registrant’s telephone number, including
area code: (508) 767-3861
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2.
below):
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each
class: |
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Trading
Symbol(s): |
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Name
of each exchange on which registered: |
Common
Stock, par value $0.0001 per share |
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PHIO |
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The Nasdaq Capital
Market |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ☐
Item 5.02. Departure of Directors or Certain Officers; Election
of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
As described in Item 5.07 below, Phio Pharmaceuticals
Corp. (the “Company”) held its 2023 Annual Meeting of Stockholders (the “Annual Meeting”) on July 20, 2023. At
the Annual Meeting, the Company’s stockholders approved an amendment to the 2020 Phio Pharmaceuticals Corp. Long Term Incentive
Plan (the “2020 Plan”). The amendment to the 2020 Plan became effective upon stockholder approval and increased the number
of shares that may be issued thereunder by 125,500, to a total of 225,500 shares available for issuance under the 2020 Plan, as described
under Proposal No. 3 of the Company’s definitive proxy statement filed on Schedule 14A with the Securities and Exchange Commission
on June 9, 2023 (the “2023 Proxy Statement”), which description is incorporated herein by reference.
The foregoing description of the amended and restated
2020 Plan is qualified in its entirety by reference to the text of the amended 2020 Plan, which is filed as Exhibit 10.1 to this Current
Report on Form 8-K and incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
On July 20, 2023, the Company held its Annual Meeting.
At the Annual Meeting, the Company’s stockholders voted on the following proposals, each as described in the 2023 Proxy Statement:
(i) election of five directors to serve until the Company’s 2024 Annual Meeting of Stockholders; (ii) ratification of BDO USA, LLP
as the Company’s independent registered public accounting firm for the year ending December 31, 2023; and (iii) amendment and restatement
of the 2020 Plan to increase the number of shares of common stock available for issuance thereunder by 125,500. The Company had 1,504,565
shares of common stock issued and outstanding at the close of business on May 30, 2023, the record date for eligibility to vote at the
Annual Meeting, and there were present (in person virtually or represented by valid proxy) a total of 630,100 shares of common stock.
All matters submitted to a vote of the Company’s stockholders at the Annual Meeting were approved, and all director nominees were
elected.
At the Annual Meeting, the Company’s stockholders
voted in the following manner with respect to the following proposals:
Proposal 1: Election of Directors
Nominee |
For |
Withheld |
Broker Non-Votes |
Robert J. Bitterman |
126,094 |
17,995 |
486,011 |
Patricia A. Bradford |
125,280 |
18,809 |
486,011 |
Robert L. Ferrara |
126,656 |
17,433 |
486,011 |
Jonathan E. Freeman, Ph.D. |
131,864 |
12,225 |
486,011 |
Curtis A. Lockshin, Ph.D. |
130,402 |
13,687 |
486,011 |
Proposal 2: Ratification of Auditors
For |
Against |
Abstain |
605,026 |
21,903 |
3,171 |
Proposal 3: Amendment and Restatement of the 2020 Phio Pharmaceuticals
Corp. Long Term Incentive Plan
For |
Against |
Abstain |
Broker Non-Votes |
98,254 |
44,696 |
1,139 |
486,011 |
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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PHIO PHARMACEUTICALS CORP. |
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Date: July 26, 2023 |
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By: |
/s/
Robert Bitterman |
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Robert Bitterman
President & Chief Executive Officer |
Exhibit 10.1
PHIO PHARMACEUTICALS CORP.
2020 LONG TERM INCENTIVE PLAN
(a) Successor
to Prior Plan. This Plan is the successor to the Phio Pharmaceuticals Corp. 2012 Long Term Incentive Plan, as amended (the “Prior
Plan”). From and after 12:01 a.m. Eastern time on the Effective Date, no additional stock awards will be granted under the
Prior Plan.
(b)
Eligible Award Recipients. Employees, Directors and Consultants are eligible to receive Awards.
(c)
Available Awards. This Plan provides for the grant of the following Awards: (i) Incentive Stock Options; (ii) Nonstatutory Stock
Options; (iii) Stock Appreciation Rights; (iv) Restricted Stock Awards; (v) Restricted Stock Unit Awards; (vi) Performance Stock Awards;
and (vii) Performance Cash Awards.
(d)
Purpose. This Plan, through the granting of Awards, is intended to help the Company secure and retain the services of eligible
award recipients, provide incentives for such persons to exert maximum efforts for the success of the Company and any Affiliate and provide
a means by which the eligible award recipients may benefit from increases in the value of the Common Stock.
(a)
Administration by Board. The Board will administer this Plan. The Board may delegate administration of this Plan to a Committee
or Committees, as provided in Section 2(d).
(b)
Powers of Board. The Board will have the power, subject to, and within the limitations of, the express provisions of this Plan:
(i)
To determine: (A) who will be granted Awards; (B) when and how each Award will be granted; (C) what type of Award will be granted; (D)
the provisions of each Award (which need not be identical), including when a person will be permitted to exercise or otherwise receive
cash or Common Stock under the Award; (E) the number of shares of Common Stock subject to, or the cash value of, an Award; and (F) the
Fair Market Value applicable to a Stock Award.
(ii)
To construe and interpret this Plan and Awards granted under it, and to establish, amend and revoke rules and regulations for administration
of this Plan and Awards. The Board, in the exercise of these powers, may correct any defect, omission or inconsistency in this Plan or
in any Award Document or in the written terms of a Performance Cash Award, in a manner and to the extent it will deem necessary or expedient
to make this Plan or Award fully effective.
(iii)
To settle all controversies regarding this Plan and Awards granted under it.
(iv)
To accelerate, in whole or in part, or to extend, in whole or in part, the time during which an Award may be exercised or vest, or at
which cash or shares of Common Stock may be issued.
(v)
To suspend or terminate this Plan at any time. Except as otherwise provided in this Plan or an Award Document, suspension or termination
of this Plan will not materially impair a Participant’s rights under his or her then-outstanding Award without his or her written
consent except as provided in subsection (viii) below.
(vi) To
amend this Plan in any respect the Board deems necessary or advisable, including, without limitation, adopting amendments relating to
Incentive Stock Options and nonqualified deferred compensation under Section 409A of the Code and/or making this Plan or Awards granted
under this Plan exempt from or compliant with the requirements for Incentive Stock Options or exempt from or compliant with the requirements
for nonqualified deferred compensation under Section 409A of the Code, subject to the limitations, if any, of applicable law. If required
by applicable law or listing requirements, and except as provided in Section 9(a) relating to Capitalization Adjustments, the Company
will seek stockholder approval of any amendment of this Plan that (A) materially increases the number of shares of Common Stock available
for issuance under this Plan, (B) materially expands the class of individuals eligible to receive Awards under this Plan, (C) materially
increases the benefits accruing to Participants under this Plan, (D) materially reduces the price at which shares of Common Stock may
be issued or purchased under this Plan, (E) materially extends the term of this Plan, or (F) materially expands the types of Awards available
for issuance under this Plan. Except as otherwise provided in this Plan (including subsection (viii) below) or an Award Document, no amendment
of this Plan will materially impair a Participant’s rights under an outstanding Award without the Participant’s written consent.
(vii) To
submit any amendment to this Plan for stockholder approval, including, but not limited to, amendments to this Plan intended to satisfy
the requirements of (A) Section 422 of the Code regarding “incentive stock options” or (B) Rule 16b-3 of the Exchange Act
or any successor rule, if applicable.
(viii) To
approve forms of Award Documents for use under this Plan and to amend the terms of any one or more outstanding Awards, including, but
not limited to, amendments to provide terms more favorable to the Participant than previously provided in the Award Documents for such
Awards, subject to any specified limits in this Plan that are not subject to Board discretion. A Participant’s rights under any
Award will not be impaired by any such amendment unless the Company requests the consent of the affected Participant, and the Participant
consents in writing. However, a Participant’s rights will not be deemed to have been impaired by any such amendment if the Board,
in its sole discretion, determines that the amendment, taken as a whole, does not materially impair the Participant’s rights. In
addition, subject to the limitations of applicable law, if any, the Board may amend the terms of any one or more Awards without the affected
Participant’s consent (A) to maintain the qualified status of the Award as an Incentive Stock Option under Section 422 of the Code,
(B) to change the terms of an Incentive Stock Option, if such change results in impairment of the Award solely because it impairs the
qualified status of the Award as an Incentive Stock Option under Section 422 of the Code, (C) to clarify the manner of exemption from,
or to bring the Award into compliance with, Section 409A of the Code, or (D) to comply with other applicable laws or listing requirements.
(ix) Generally,
to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the best interests of the Company
and that are not in conflict with the provisions of this Plan and/or Award Documents.
(x) To
adopt such procedures and sub-plans as are necessary or appropriate (A) to permit or facilitate participation in this Plan by persons
eligible to receive Awards under this Plan who are not citizens of, subject to taxation by, or employed outside, the United States or
(B) to allow Awards to qualify for special tax treatment in a jurisdiction other than the United States. Board approval will not be necessary
for immaterial modifications to this Plan or any Award Document that are required for compliance with the laws of the relevant jurisdiction.
(c)
Minimum Vesting. Notwithstanding any other provision of this Plan, Awards granted under this Plan may not become exercisable, vest
or settle, in whole or in part, prior to the one-year anniversary of the date of grant, except that (1) the Board may provide that Awards
become exercisable, vest or settle prior to such date in the event of the Participant’s death or disability or in connection with
a Change in Control, and (2) Awards to Non-Employee Directors may vest on the Company’s next annual meeting of stockholders (provided
that such annual meetings are at least fifty (50) weeks apart). Notwithstanding the foregoing, up to 5% of the aggregate number of Shares
authorized for issuance under this Plan (as described in Section 3(a)(1) hereof) may be issued without regard to the restrictions of the
foregoing sentence.
(d)
Delegation to Committee.
(i)
General. The Board may delegate some or all of the administration of this Plan to a Committee or Committees. If administration
of this Plan is delegated to a Committee, the Committee will have, in connection with the administration of this Plan, the powers theretofore
possessed by the Board that have been delegated to the Committee, including the power to delegate to a subcommittee of the Committee any
of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board will thereafter be to the
Committee or subcommittee). Any delegation of administrative powers will be reflected in the charter of the Committee to which the delegation
is made, or resolutions, not inconsistent with the provisions of this Plan, adopted from time to time by the Board or Committee (as applicable).
The Committee may, at any time, abolish the subcommittee and/or revest in the Committee any powers delegated to any subcommittee. Unless
otherwise provided by the Board, delegation of authority by the Board to a Committee, or to an Officer or employee pursuant to Section
2(e), does not limit the authority of the Board, which may continue to exercise any authority so delegated and may concurrently administer
this Plan with the Committee and may, at any time, revest in the Board some or all of the powers previously delegated.
(ii)
Rule 16b-3 Compliance. The Committee may consist solely of two or more Non-Employee Directors, in accordance with Rule 16b-3 of
the Exchange Act.
(e)
Delegation to an Officer. The Board may delegate to one (1) or more Officers the authority to do one or both of the following,
to the maximum extent permitted by applicable law: (i) designate Employees who are not Officers to be recipients of Stock Awards and the
terms of such Stock Awards; and (ii) determine the number of shares of Common Stock to be subject to such Stock Awards granted to such
Employees; provided, however, that the Board resolutions regarding such delegation will specify the total number of shares of Common Stock
that may be subject to the Stock Awards granted by such Officer and that such Officer may not grant a Stock Award to himself or herself.
Any such Stock Awards will be granted on a form that is substantially the same as the form of Stock Award Document approved by the Committee
or the Board for use in connection with such Stock Awards, unless otherwise provided for in the resolutions approving the delegation authority.
(f)
Effect of Board’s Decision. All determinations, interpretations and constructions made by the Board (or a duly authorized
Committee, subcommittee or Officer exercising powers delegated by the Board under this Section 2) in good faith will not be subject
to review by any person and will be final, binding and conclusive on all persons.
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3. |
SHARES SUBJECT TO THIS PLAN. |
(a)
Share Reserve.
(i)
Subject to Section 9(a) relating to Capitalization Adjustments, the aggregate maximum number of shares of Common Stock that may
be issued pursuant to Stock Awards from and after the Effective Date will not exceed 225,500 shares of Common Stock plus (A) any shares
of Common Stock that remain available for grant under the Prior Plan as of the Effective Date and (B) any shares of Common Stock subject
to outstanding awards under the Prior Plan as of the Effective Date (such outstanding awards the “Prior Plan Awards”)
that on or after the Effective Date are forfeited, terminated, expire or otherwise lapse without being exercised (to the extent applicable),
or are settled in cash (the “Share Reserve”).
(ii)
For clarity, the Share Reserve is a limitation on the number of shares of Common Stock that may be issued under this Plan. As a single
share may be subject to grant more than once (e.g., if a share subject to a Stock Award is forfeited, it may be made subject to grant
again as provided in Section 3(b) below), the Share Reserve is not a limit on the number of Stock Awards that can be granted.
(iii)
Shares may be issued under the terms of this Plan in connection with a merger or acquisition as permitted by NASDAQ Listing Rule 5635(c),
NYSE Listed Company Manual Section 303A.08, AMEX Company Guide Section 711 or other applicable rule, and such issuance will not reduce
the number of shares available for issuance under this Plan.
(iv)
Subject to Section 9(a) relating to Capitalization Adjustments, the aggregate Fair Market Value on the date of grant of Shares
subject to Awards granted under this Plan, together with any cash compensation paid or payable, during any calendar year to any one Non-Employee
Director shall not exceed $500,000; provided, however, that in the calendar year in which a Non-Employee Director first joins the Board
or is designated as Chairman of the Board, such maximum dollar value may be up to two hundred percent (200%) of the dollar value set forth
in the foregoing limit. The limitation described in this Section shall be determined without regard to amounts paid to a Non-Employee
Director during or for any period in which such individual was an employee or consultant, and any severance and other payments paid to
a Non-Employee Director for such director’s prior or current service to the Company or any Subsidiary other than serving as a director
shall not be taken into account in applying the limit provided above. For the avoidance of doubt, any compensation that is deferred shall
be counted toward this limit for the year in which it was first earned, and not when paid or settled.
(b)
Reversion of Shares to the Share Reserve. If a Stock Award or any portion of a Stock Award expires, is cancelled or forfeited or
otherwise terminates without all of the shares covered by the Stock Award having been issued, then the shares of Common Stock subject
to the Stock Award (or portion thereof) that expires, is cancelled or forfeited or otherwise terminates shall revert and again be available
for issuance under this Plan. If any shares of Common Stock are repurchased by the Company using proceeds from the exercise or purchase
price of a Stock Award, or retained because the Stock Award (or a portion thereof) is settled in cash (i.e., the Participant receives
cash rather than stock), then the shares that are repurchased or retained shall not revert and will not become available for issuance
under this Plan. Any shares retained and not issued by the Company in satisfaction of tax withholding obligations on a Stock Award or
as consideration for the exercise or purchase price of a Stock Award will reduce the number of shares of Common Stock that are available
for issuance under this Plan and such shares shall not be available for issuance under this Plan.
(c)
Incentive Stock Option Limit. Subject to Section 9(a) relating to Capitalization Adjustments, the aggregate maximum number
of shares of Common Stock that may be issued on the exercise of Incentive Stock Options will be 1,200,000 shares of Common Stock.
(d)
Source of Shares. The stock issuable under this Plan will be shares of authorized but unissued or reacquired Common Stock, including
shares repurchased by the Company on the open market or otherwise or shares classified as treasury shares.
(a)
Eligibility for Specific Stock Awards. Incentive Stock Options may be granted only to employees of the Company or a “parent
corporation” or “subsidiary corporation” thereof (as such terms are defined in Sections 424(e) and 424(f) of the Code).
Stock Awards other than Incentive Stock Options may be granted to Employees, Directors and Consultants.
(b)
Ten Percent Stockholders. A Ten Percent Stockholder will not be granted an Incentive Stock Option unless the exercise price of
such Option is at least 110% of the Fair Market Value on the date of grant and the Option is not exercisable after the expiration of five
(5) years from the date of grant.
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5. |
PROVISIONS RELATING TO OPTIONS AND STOCK APPRECIATION RIGHTS. |
Each Option or SAR will be
in such form and will contain such terms and conditions as the Board deems appropriate. All Options will be separately designated Incentive
Stock Options or Nonstatutory Stock Options at the time of grant, and, if certificates are issued, a separate certificate or certificates
will be issued for shares of Common Stock purchased on exercise of each type of Option. If an Option is not specifically designated as
an Incentive Stock Option, or if an Option is designated as an Incentive Stock Option but some portion or all of the Option fails to qualify
as an Incentive Stock Option under the applicable rules, then the Option (or portion thereof) will be a Nonstatutory Stock Option. The
provisions of separate Options or SARs need not be identical; provided, however, that each Award Document will conform to (through incorporation
of provisions hereof by reference in the applicable Award Document or otherwise) the substance of each of the following provisions:
(a)
Term. Subject to Section 4(b) regarding Ten Percent Stockholders, no Option or SAR will be exercisable after the expiration
of 10 years from the date of its grant or such shorter period specified in the Award Document.
(b)
Exercise Price. Subject to Section 4(b) regarding Ten Percent Stockholders, the exercise or strike price of each Option
or SAR will be not less than 100% of the Fair Market Value of the Common Stock subject to the Option or SAR on the date the Award is granted.
Notwithstanding the foregoing, an Option or SAR may be granted with an exercise or strike price lower than 100% of the Fair Market Value
of the Common Stock subject to the Award if such Award is granted pursuant to an assumption of or substitution for another option or stock
appreciation right pursuant to a corporate transaction and in a manner consistent with the provisions of Section 409A of the Code and,
if applicable, Section 424(a) of the Code. Each SAR will be denominated in shares of Common Stock equivalents.
(c)
Purchase Price for Options. The purchase price of Common Stock acquired pursuant to the exercise of an Option may be paid, to the
extent permitted by applicable law and as determined by the Board in its sole discretion, by any combination of the methods of payment
set forth below. The Board will have the authority to grant Options that do not permit all of the following methods of payment (or otherwise
restrict the ability to use certain methods) and to grant Options that require the consent of the Company to use a particular method of
payment. The purchase price shall be denominated in U.S. dollars. The permitted methods of payment are as follows:
(i)
by cash, check, bank draft or money order payable to the Company;
(ii)
pursuant to a program developed under Regulation T as promulgated by the United States Federal Reserve Board or a successor regulation,
or a similar rule in a foreign jurisdiction of domicile of a Participant, that, prior to or contemporaneously with the issuance of the
stock subject to the Option, results in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions
to pay the aggregate exercise price to the Company from the proceeds of sale of such stock;
(iii)
by delivery to the Company (either by actual delivery or attestation) of shares of Common Stock;
(iv)
by a “net exercise” arrangement pursuant to which the Company will reduce the number of shares of Common Stock issuable upon
exercise by the largest whole number of shares with a Fair Market Value that does not exceed the aggregate exercise price; provided, however,
that the Company will accept cash or other payment from the Participant to the extent of any remaining balance of the aggregate exercise
price not satisfied by such reduction in the number of whole shares to be issued. Shares of Common Stock will no longer be subject to
an Option and will not be exercisable thereafter to the extent that (A) shares issuable upon exercise are used to pay the exercise price
pursuant to the “net exercise,” (B) shares are delivered to the Participant as a result of such exercise, and (C) shares are
withheld to satisfy tax withholding obligations; or
(v)
in any other form of legal consideration that may be acceptable to the Board and specified in the applicable Award Document.
(d)
Exercise and Payment of a SAR. To exercise any outstanding SAR, the Participant must provide written notice of exercise to the
Company in compliance with the provisions of the Stock Appreciation Right Award Document evidencing such SAR. The appreciation distribution
payable on the exercise of a SAR will be not greater than an amount equal to the excess of (A) the aggregate Fair Market Value (on the
date of the exercise of the SAR) of a number of shares of Common Stock equal to the number of Common Stock equivalents in which the Participant
is vested under such SAR (with respect to which the Participant is exercising the SAR on such date), over (B) the aggregate strike price
of the number of Common Stock equivalents with respect to which the Participant is exercising the SAR on such date. The appreciation distribution
may be paid in Common Stock, in cash, in any combination of the two or in any other form of consideration, as determined by the Board
and contained in the Award Document evidencing such SAR.
(e)
Transferability of Options and SARs. The Board may, in its sole discretion, impose such limitations on the transferability of Options
and SARs as the Board determines. In the absence of such a determination by the Board to the contrary, the following restrictions on the
transferability of Options and SARs will apply:
(i)
Restrictions on Transfer. An Option or SAR will not be transferable except by will or by the laws of descent and distribution (or
pursuant to subsections (ii) and (iii) below), and will be exercisable during the lifetime of the Participant only by the Participant.
The Board may permit transfer of the Option or SAR in a manner that is not prohibited by applicable tax and securities laws. Except as
explicitly provided herein, neither an Option nor a SAR may be transferred for consideration.
(ii)
Domestic Relations Orders. Subject to the approval of the Board or a duly authorized Officer, an Option or SAR may be transferred
pursuant to the terms of a domestic relations order, official marital settlement agreement or other divorce or separation instrument as
permitted by U.S. Treasury Regulation 1.421-1(b)(2) or other applicable law. If an Option is an Incentive Stock Option, such Option may
be deemed to be a Nonstatutory Stock Option as a result of such transfer.
(iii)
Beneficiary Designation. Subject to the approval of the Board or a duly authorized Officer, a Participant may, by delivering written
notice to the Company, in a form approved by the Company (or the designated broker), designate a third party who, on the death of the
Participant, will thereafter be entitled to exercise the Option or SAR and receive the Common Stock or other consideration resulting from
such exercise. In the absence of such a designation, the executor or administrator of the Participant’s estate will be entitled
to exercise the Option or SAR and receive the Common Stock or other consideration resulting from such exercise. However, the Company may
prohibit designation of a beneficiary at any time, including due to any conclusion by the Company that such designation would be inconsistent
with the provisions of applicable laws.
(f)
Vesting Generally. The total number of shares of Common Stock subject to an Option or SAR may vest and therefore become exercisable
in periodic installments that may or may not be equal. The Option or SAR may be subject to such other terms and conditions on the time
or times when it may or may not be exercised (which may be based on the satisfaction of performance goals or other criteria) as the Board
may deem appropriate. The vesting provisions of individual Options or SARs may vary. The provisions of this Section 5(f) are subject
to any Option or SAR provisions governing the minimum number of shares of Common Stock as to which an Option or SAR may be exercised.
(g) Termination
of Continuous Service. Except as otherwise provided in the applicable Award Document, or other agreement between the Participant
and the Company, if a Participant’s Continuous Service terminates (other than for Cause and other than upon the Participant’s
death or Disability), the Participant may exercise his or her Option or SAR (to the extent that the Participant was entitled to exercise
such Award as of the date of termination of Continuous Service) within the period of time ending on the earlier of (i) the date three
(3) months following the termination of the Participant’s Continuous Service and (ii) the expiration of the term of the Option
or SAR as set forth in the applicable Award Document. If, after termination of Continuous Service, the Participant does not exercise
his or her Option or SAR within the applicable time frame, the Option or SAR will terminate.
(h)
Extension of Termination Date. Except as otherwise provided in the applicable Award Document, or other agreement between the Participant
and the Company, if the exercise of an Option or SAR following the termination of the Participant’s Continuous Service (other than
for Cause and other than upon the Participant’s death or Disability) would be prohibited at any time solely because the issuance
of shares of Common Stock would violate the registration requirements under the Securities Act, then the Option or SAR will terminate
on the earlier of (i) the expiration of a total period of three (3) months (that need not be consecutive) after the termination of
the Participant’s Continuous Service during which the exercise of the Option or SAR would not be in violation of such registration
requirements, and (ii) the expiration of the term of the Option or SAR as set forth in the applicable Award Document. In addition, unless
otherwise provided in a Participant’s applicable Award Document, or other agreement between the Participant and the Company, if
the sale of any Common Stock received upon exercise of an Option or SAR following the termination of the Participant’s Continuous
Service (other than for Cause) would violate the Company’s insider trading policy, and the Company does not waive the potential
violation of the policy or otherwise permit the sale, or allow the Participant to surrender shares of Common Stock to the Company in satisfaction
of any exercise price and/or any withholding obligations under Section 8(g), then the Option or SAR will terminate on the earlier
of (i) the expiration of a period of months (that need not be consecutive) equal to the applicable post-termination exercise period after
the termination of the Participant’s Continuous Service during which the sale of the Common Stock received upon exercise of the
Option or SAR would not be in violation of the Company’s insider trading policy, or (ii) the expiration of the term of the Option
or SAR as set forth in the applicable Award Document.
(i)
Disability of Participant. Except as otherwise provided in the applicable Award Document, or other agreement between the Participant
and the Company, if a Participant’s Continuous Service terminates as a result of the Participant’s Disability, the Participant
may exercise his or her Option or SAR (to the extent that the Participant was entitled to exercise such Option or SAR as of the date of
termination of Continuous Service), but only within such period of time ending on the earlier of (i) the date 12 months following such
termination of Continuous Service, and (ii) the expiration of the term of the Option or SAR as set forth in the applicable Award Document.
If, after termination of Continuous Service, the Participant does not exercise his or her Option or SAR within the applicable time frame,
the Option or SAR (as applicable) will terminate.
(j)
Death of Participant. Except as otherwise provided in the applicable Award Document, or other agreement between the Participant
and the Company, if (i) a Participant’s Continuous Service terminates as a result of the Participant’s death, or (ii) the
Participant dies within the period (if any) specified in this Plan or the applicable Award Document, or other agreement between the Participant
and the Company, for exercisability after the termination of the Participant’s Continuous Service (for a reason other than death),
then the Option or SAR may be exercised (to the extent the Participant was entitled to exercise such Option or SAR as of the date of death)
by the Participant’s estate, by a person who acquired the right to exercise the Option or SAR by bequest or inheritance or by a
person designated to exercise the Option or SAR upon the Participant’s death, but only within the period ending on the earlier of
(i) the date 18 months following the date of death, and (ii) the expiration of the term of such Option or SAR as set forth in the applicable
Award Document. If, after the Participant’s death, the Option or SAR is not exercised within the applicable time frame, the Option
or SAR will terminate.
(k) Termination
for Cause. Except as explicitly provided otherwise in a Participant’s Award Document or other individual written agreement
between the Company or any Affiliate and the Participant, if a Participant’s Continuous Service is terminated for Cause, the Option
or SAR will terminate upon the date on which the event giving rise to the termination for Cause first occurred, and the Participant will
be prohibited from exercising his or her Option or SAR from and after the date on which the event giving rise to the termination for
Cause first occurred (or, if required by law, the date of termination of Continuous Service). If a Participant’s Continuous Service
is suspended pending an investigation of the existence of Cause, all of the Participant’s rights under the Option or SAR will also
be suspended during the investigation period.
(l)
Non-Exempt Employees. If an Option or SAR is granted to an Employee who is a non-exempt employee for purposes of the U.S. Fair
Labor Standards Act of 1938, as amended, the Option or SAR will not be first exercisable for any shares of Common Stock until at least
6 months following the date of grant of the Option or SAR (although the Award may vest prior to such date). Consistent with the provisions
of the U.S. Worker Economic Opportunity Act, (i) if such non-exempt Employee dies or suffers a Disability, (ii) upon a Change in Control
in which such Option or SAR is not assumed, continued, or substituted, or (iii) upon the non-exempt Employee’s retirement (as such
term may be defined in the non-exempt Employee’s applicable Award Document, in another agreement between the non-exempt Employee
and the Company, or, if no such definition, in accordance with the Company’s then current employment policies and guidelines), the
vested portion of any Options and SARs may be exercised earlier than 6 months following the date of grant. The foregoing provision is
intended to operate so that any income derived by a non-exempt Employee in connection with the exercise or vesting of an Option or SAR
will be exempt from his or her regular rate of pay. To the extent permitted and/or required for compliance with the U.S. Worker Economic
Opportunity Act to ensure that any income derived by a non-exempt Employee in connection with the exercise, vesting or issuance of any
shares under any other Stock Award will be exempt from such employee’s regular rate of pay, the provisions of this paragraph will
apply to all Stock Awards and are hereby incorporated by reference into such Stock Award Documents.
(m)
No Repricing. Neither an Option nor SAR may be modified to reduce the exercise price thereof nor may a new Option, SAR or other
Award at a lower price be substituted or exchanged for a surrendered Option or SAR (other than adjustments or substitutions in accordance
with Section 9(a) relating to Capitalization Adjustments), unless such action is approved by the stockholders of the Company.
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6. |
PROVISIONS OF STOCK AWARDS OTHER THAN OPTIONS AND SARS. |
(a)
Restricted Stock Awards. Each Restricted Stock Award Document will be in such form and will contain such terms and conditions as
the Board deems appropriate. To the extent consistent with the Company’s bylaws, at the Board’s election, shares of Common
Stock may be (x) held in book entry form subject to the Company’s instructions until any restrictions relating to the Restricted
Stock Award lapse, or (y) evidenced by a certificate, which certificate will be held in such form and manner as determined by the Board.
The terms and conditions of Restricted Stock Award Documents may change from time to time, and the terms and conditions of separate Restricted
Stock Award Documents need not be identical. Each Restricted Stock Award Document will conform to (through incorporation of the provisions
hereof by reference in the agreement or otherwise) the substance of each of the following provisions:
(i)
Consideration. A Restricted Stock Award may be awarded in consideration for (A) cash, check, bank draft or money order payable
to the Company, (B) past services to the Company or an Affiliate, or (C) any other form of legal consideration (including future services)
that may be acceptable to the Board, in its sole discretion, and permissible under applicable law.
(ii)
Vesting. Shares of Common Stock awarded under the Restricted Stock Award Document may be subject to forfeiture to the Company in
accordance with a vesting schedule and subject to such conditions as may be determined by the Board.
(iii)
Termination of Participant’s Continuous Service. If a Participant’s Continuous Service terminates, the Company may
receive through a forfeiture condition or a repurchase right, any or all of the shares of Common Stock held by the Participant that have
not vested as of the date of termination of Continuous Service under the terms of the Restricted Stock Award Document.
(iv)
Transferability. Common Stock issued pursuant to an Award, and rights to acquire shares of Common Stock under the Restricted Stock
Award Document, will be transferable by the Participant only upon such terms and conditions as are set forth in the Restricted Stock Award
Document, as the Board determines in its sole discretion, so long as such Common Stock remains subject to the terms of the Restricted
Stock Award Document.
(v)
Dividends. Any dividends paid on Restricted Stock will be subject to the same vesting and forfeiture restrictions as apply to the
shares subject to the Restricted Stock Award to which they relate.
(b)
Restricted Stock Unit Awards. Each Restricted Stock Unit Award Document will be in such form and will contain such terms and conditions
as the Board deems appropriate. The terms and conditions of Restricted Stock Unit Award Documents may change from time to time, and the
terms and conditions of separate Restricted Stock Unit Award Documents need not be identical. Each Restricted Stock Unit Award Document
will conform to (through incorporation of the provisions hereof by reference in the Agreement or otherwise) the substance of each of the
following provisions:
(i)
Consideration. At the time of grant of a Restricted Stock Unit Award, the Board will determine the consideration, if any, to be
paid by the Participant upon delivery of each share of Common Stock subject to the Restricted Stock Unit Award. The consideration to be
paid (if any) by the Participant for each share of Common Stock subject to a Restricted Stock Unit Award may be paid in any form of legal
consideration that may be acceptable to the Board, in its sole discretion, and permissible under applicable law.
(ii)
Vesting. At the time of the grant of a Restricted Stock Unit Award, the Board may impose such restrictions on or conditions to
the vesting of the Restricted Stock Unit Award as it, in its sole discretion, deems appropriate.
(iii)
Payment. A Restricted Stock Unit Award may be settled by the delivery of shares of Common Stock, their cash equivalent, any combination
thereof or in any other form of consideration, as determined by the Board and contained in the Restricted Stock Unit Award Document.
(iv)
Additional Restrictions. At the time of the grant of a Restricted Stock Unit Award, the Board, as it deems appropriate, may impose
such restrictions or conditions that delay the delivery of the shares of Common Stock (or their cash equivalent) subject to a Restricted
Stock Unit Award to a time after the vesting of such Restricted Stock Unit Award.
(v)
Dividend Equivalents. Dividend equivalents may be credited in respect of shares of Common Stock covered by a Restricted Stock Unit
Award, as determined by the Board and contained in the Restricted Stock Unit Award Document. At the sole discretion of the Board, such
dividend equivalents may be converted into additional shares of Common Stock covered by the Restricted Stock Unit Award in such manner
as determined by the Board. Any dividend equivalents and/or additional shares covered by the Restricted Stock Unit Award credited by reason
of such dividend equivalents will be subject to all of the same terms and conditions of the underlying Restricted Stock Unit Award Document
to which they relate.
(vi)
Termination of Participant’s Continuous Service. Except as otherwise provided in the applicable Restricted Stock Unit Award
Document, or other agreement between the Participant and the Company, such portion of the Restricted Stock Unit Award that has not vested
will be forfeited upon the Participant’s termination of Continuous Service.
(c)
Performance Awards.
(i)
Performance Stock Awards. A Performance Stock Award is a Stock Award that is payable (including that may be granted, vest or exercised)
contingent upon the attainment during a Performance Period of the achievement of certain performance goals. A Performance Stock Award
may, but need not, require the completion of a specified period of Continuous Service. The length of any Performance Period, the performance
goals to be achieved during the Performance Period, and the measure of whether and to what degree such performance goals have been attained
will be conclusively determined by the Committee, the Board, or an authorized Officer, in its sole discretion. In addition, to the extent
permitted by applicable law and the applicable Award Document, the Board may determine that cash may be used in payment of Performance
Stock Awards.
(ii)
Performance Cash Awards. A Performance Cash Award is a cash award that is granted and/or becomes payable contingent upon the attainment
during a Performance Period of the achievement of certain performance goals. A Performance Cash Award may also require the completion
of a specified period of Continuous Service. At the time of grant of a Performance Cash Award, the length of any Performance Period, the
performance goals to be achieved during the Performance Period, and the measure of whether and to what degree such performance goals have
been attained will be conclusively determined by the Committee, the Board, or an authorized Officer, in its sole discretion. The Board
may specify the form of payment of Performance Cash Awards, which may be cash or other property, or may provide for a Participant to have
the option for his or her Performance Cash Award, or such portion thereof as the Board may specify, to be paid in whole or in part in
cash or other property.
(iii)
Board Discretion. The Committee, the Board, or an authorized Officer, as the case may be, retains the discretion to define the
manner of calculating the performance criteria it selects to use for a Performance Period.
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7. |
COVENANTS OF THE COMPANY. |
(a)
No Obligation to Notify or Minimize Taxes. The Company will have no duty or obligation to any Participant to advise such holder
as to the time or manner of exercising such Stock Award. Furthermore, the Company will have no duty or obligation to warn or otherwise
advise such holder of a pending termination or expiration of an Award or a possible period in which the Award may not be exercised. The
Company has no duty or obligation to, and does not undertake to, provide tax advice or to minimize the tax consequences of an Award to
the holder of such Award.
(b)
Securities Law Compliance. The Company will seek to obtain from each regulatory commission or agency having jurisdiction over this
Plan such authority as may be required to grant Stock Awards and to issue and sell shares of Common Stock upon exercise of the Stock Awards;
provided, however, that this undertaking will not require the Company to register under the Securities Act this Plan, any Stock Award
or any Common Stock issued or issuable pursuant to any such Stock Award. If, after reasonable efforts and at a reasonable cost, the Company
is unable to obtain from any such regulatory commission or agency the authority that counsel for the Company deems necessary for the lawful
issuance and sale of Common Stock under this Plan, the Company will be relieved from any liability for failure to issue and sell Common
Stock upon exercise of such Stock Awards unless and until such authority is obtained. A Participant will not be eligible for the grant
of an Award or the subsequent issuance of cash or Common Stock pursuant to the Award if such grant or issuance would be in violation of
any applicable securities law.
(a)
Use of Proceeds from Sales of Common Stock. Proceeds from the sale of shares of Common Stock pursuant to Stock Awards will constitute
general funds of the Company.
(b)
Corporate Action Constituting Grant of Awards. Corporate action constituting a grant by the Company of an Award to any Participant
will be deemed completed as of the latest date that all necessary corporate action has occurred and all material terms of the Award (including,
in the case of stock options, the exercise price thereof) are fixed, unless otherwise determined by the Board, regardless of when the
documentation evidencing the Award is communicated to, or actually received or accepted by, the Participant. In the event that the corporate
records (e.g., Board consents, resolutions or minutes) documenting the corporate action constituting the grant contain terms (e.g., exercise
price, vesting schedule or number of shares) that are inconsistent with those in the Award Document as a result of a clerical error in
the papering of the Award Document, the corporate records will control and the Participant will have no legally binding right to the incorrect
term in the Award Document.
(c)
Stockholder Rights. No Participant will be deemed to be the holder of, or to have any of the rights of a holder with respect to,
any shares of Common Stock subject to a Stock Award unless and until (i) such Participant has satisfied all requirements for exercise
of, or the issuance of shares of Common Stock under, the Stock Award pursuant to its terms, and (ii) the issuance of the Common Stock
subject to such Stock Award has been entered into the books and records of the Company.
(d)
No Employment or Other Service Rights. Nothing in this Plan, any Award Document or any other instrument executed thereunder or
in connection with any Award granted pursuant thereto will confer upon any Participant any right to continue to serve the Company or an
Affiliate in the capacity in effect at the time the Award was granted or any other capacity or will affect the right of the Company or
an Affiliate to terminate (i) the employment of an Employee with or without notice and with or without cause, including, but not limited
to, Cause, (ii) the service of a Consultant pursuant to the terms of such Consultant’s agreement with the Company or an Affiliate,
or (iii) the service of a Director pursuant to the organizational documents of the Company or an Affiliate (including articles of incorporation
and bylaws), and any applicable provisions of the corporate law of the state in which the Company or the Affiliate is incorporated, as
the case may be.
(e)
Change in Time Commitment. In the event a Participant’s regular level of time commitment in the performance of his or her
services for the Company and any Affiliates is reduced (for example, and without limitation, if the Participant is an Employee of the
Company and the Employee has a change in status from a full-time Employee to a part-time Employee or takes an extended leave of absence),
or the Participant’s role or primary responsibilities are changed to a level that, in the Board’s determination does not justify
the Participant’s unvested Awards, and such reduction or change occurs after the date of grant of any Award to the Participant,
the Board has the right in its sole discretion to (i) make a corresponding reduction in the number of shares or cash amount subject to
any portion of such Award that is scheduled to vest or become payable after the date of such change in time commitment, and (ii) in lieu
of or in combination with such a reduction, extend the vesting or payment schedule applicable to such Award. In the event of any such
reduction, the Participant will have no right with respect to any portion of the Award that is so reduced or extended.
(f)
Incentive Stock Option Limitations. To the extent that the aggregate Fair Market Value (determined at the time of grant) of Common
Stock with respect to which Incentive Stock Options are exercisable for the first time by any Optionholder during any calendar year (under
all plans of the Company and any Affiliates) exceeds USD$100,000 (or such other limit established in the Code) or otherwise does not comply
with the rules governing Incentive Stock Options, the Options or portions thereof that exceed such limit (according to the order in which
they were granted) or otherwise do not comply with such rules will be treated as Nonstatutory Stock Options, notwithstanding any contrary
provision of the applicable Option Agreement(s).
(g)
Withholding Obligations. Unless prohibited by the terms of an Award Document, the Company may, in its sole discretion, satisfy
any national, state, local or other tax withholding obligation relating to an Award by any of the following means or by a combination
of such means: (i) causing the Participant to tender a cash payment; (ii) withholding shares of Common Stock from the shares of Common
Stock issued or otherwise issuable to the Participant in connection with the Award (only up to the amount permitted that will not cause
an adverse accounting consequence or cost); (iii) withholding cash from an Award settled in cash; (iv) withholding payment from any
amounts otherwise payable to the Participant, including proceeds from the sale of shares of Common Stock issued pursuant to a Stock Award;
or (v) by such other method as may be set forth in the Award Document.
(h)
Electronic Delivery. Any reference herein to a “written” agreement or document will include any agreement or document
delivered electronically, filed publicly at www.sec.gov (or any successor website thereto), or posted on the Company’s intranet
(or other shared electronic medium controlled by the Company to which the Participant has access).
(i)
Deferrals. To the extent permitted by applicable law, the Board, in its sole discretion, may determine that the delivery of Common
Stock or the payment of cash, upon the exercise, vesting or settlement of all or a portion of any Award may be deferred and may establish
programs and procedures for deferral elections to be made by Participants. Deferrals by Participants will be made in accordance with Section
409A of the Code (to the extent applicable to a Participant). Consistent with Section 409A of the Code, the Board may provide for distributions
while a Participant is still an employee or otherwise providing services to the Company. The Board is authorized to make deferrals of
Awards and determine when, and in what annual percentages, Participants may receive payments, including lump sum payments, following the
Participant’s termination of Continuous Service, and implement such other terms and conditions consistent with the provisions of
this Plan and in accordance with applicable law.
(j)
Compliance with Section 409A. Unless otherwise expressly provided for in an Award Document, or other agreement between the Participant
and the Company, this Plan and Award Documents will be interpreted to the greatest extent possible in a manner that makes this Plan and
the Awards granted hereunder exempt from Section 409A of the Code, to the extent that Section 409A of the Code is applicable to an Award,
and, to the extent not so exempt, in compliance with Section 409A of the Code. If the Board determines that any Award granted hereunder
is subject to Section 409A of the Code, the Award Document evidencing such Award will incorporate the terms and conditions necessary to
avoid the consequences specified in Section 409A(a)(1) of the Code, and to the extent an Award Document is silent on terms necessary for
compliance, such terms are hereby incorporated by reference into the Award Document. Notwithstanding anything to the contrary in this
Plan (and unless the Award Document specifically provides otherwise), if the shares of Common Stock are publicly traded, and if a Participant
holding an Award that constitutes “deferred compensation” under Section 409A of the Code is a “specified employee”
for purposes of Section 409A of the Code and the Participant is otherwise subject to Section 409A of the Code, no distribution or payment
of any amount that is due because of a “separation from service” (as defined in Section 409A of the Code without regard to
alternative definitions thereunder) will be issued or paid before the date that is six (6) months following the date of such Participant’s
“separation from service” or, if earlier, the date of the Participant’s death, unless such distribution or payment can
be made in a manner that complies with Section 409A of the Code, and any amounts so deferred will be paid in a lump sum on the day after
such six (6) month period elapses, with the balance paid thereafter on the original schedule.
(i)
Clawback/Recovery. All Awards granted under this Plan will be subject to recoupment in accordance with any clawback policy that
the Company is required to adopt pursuant to the listing standards of any national securities exchange or association on which the Company’s
securities are listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other applicable
law. In addition, the Board may impose such other clawback, recovery or recoupment provisions in an Award Document as the Board determines
necessary or appropriate, including, but not limited to, a reacquisition right in respect of previously acquired shares of Common Stock
or other cash or property upon the occurrence of Cause. No recovery of compensation under such a clawback policy will be an event giving
rise to a right to resign for “good reason” or “constructive termination” (or similar term) under any agreement
with the Company or an Affiliate.
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9. |
ADJUSTMENTS UPON CHANGES IN COMMON STOCK; OTHER CORPORATE EVENTS. |
(a)
Capitalization Adjustments. In the event of a Capitalization Adjustment, the Board will appropriately and proportionately adjust:
(i) the class(es) and maximum number of securities subject to this Plan pursuant to Section 3(a); (ii) the class(es) and maximum
number of securities that may be issued pursuant to the exercise of Incentive Stock Options pursuant to Section 3(c); and (iii)
the class(es) and number of securities or other property and value (including price per share of stock) subject to outstanding Stock Awards.
The Board will make such adjustments, and its determination will be final, binding and conclusive.
(b)
Dissolution or Liquidation. Except as otherwise provided in the Stock Award Document, or other agreement between the Participant
and the Company, in the event of a dissolution or liquidation of the Company, all outstanding Stock Awards (other than Stock Awards consisting
of vested and outstanding shares of Common Stock not subject to a forfeiture condition or the Company’s right of repurchase) will
terminate immediately prior to the completion of such dissolution or liquidation, and the shares of Common Stock subject to the Company’s
repurchase rights or subject to a forfeiture condition may be repurchased or reacquired by the Company notwithstanding the fact that the
holder of such Stock Award is providing Continuous Service; provided, however, that the Board may, in its sole discretion, cause some
or all Stock Awards to become fully vested, exercisable and/or no longer subject to repurchase or forfeiture (to the extent such Stock
Awards have not previously expired or terminated) before the dissolution or liquidation is completed but contingent on its completion.
(c)
Change in Control. The following provisions will apply to Awards in the event of a Change in Control unless otherwise provided
in the instrument evidencing the Award or any other written agreement between the Company or any Affiliate and the Participant or unless
otherwise expressly provided by the Board at the time of grant of an Award. In the event of a Change in Control, then, notwithstanding
any other provision of this Plan, the Board will take one or more of the following actions with respect to each outstanding Award, contingent
upon the closing or completion of the Change in Control:
(i)
arrange for the surviving corporation or acquiring corporation (or the surviving or acquiring corporation’s parent company) to assume
or continue the Award or to substitute a similar award for the Award (including, but not limited to, an award to acquire the same consideration
per share paid to the stockholders of the Company pursuant to the Change in Control);
(ii)
arrange for the assignment of any reacquisition or repurchase rights held by the Company in respect of Common Stock issued pursuant to
the Award to the surviving corporation or acquiring corporation (or the surviving or acquiring corporation’s parent company);
(iii)
accelerate the vesting, in whole or in part, of the Award (and, if applicable, the time at which the Award may be exercised) to a date
prior to the effective time of such Change in Control as the Board will determine (or, if the Board will not determine such a date, to
the date that is 5 days prior to the effective date of the Change in Control), with such Award terminating if not exercised (if applicable)
at or prior to the effective time of the Change in Control, and with such exercise reversed if the Change in Control does not become effective;
(iv)
arrange for the lapse, in whole or in part, of any reacquisition or repurchase rights held by the Company with respect to the Award;
(v)
cancel or arrange for the cancellation of the Award, to the extent not vested or not exercised prior to the effective time of the Change
in Control, in exchange for such cash consideration, if any, as the Board, in its reasonable determination, may consider appropriate as
an approximation of the value of the canceled Award, taking into account the value of the Common Stock subject to the canceled Award,
the possibility that the Award might not otherwise vest in full, and such other factors as the Board deems relevant; and
(vi)
cancel or arrange for the cancellation of the Award, to the extent not vested or not exercised prior to the effective time of the Change
in Control, in exchange for a payment, in such form as may be determined by the Board equal to the excess, if any, of (A) the value in
the Change in Control of the property the Participant would have received upon the exercise of the Award immediately prior to the effective
time of the Change in Control, over (B) any exercise price payable by such holder in connection with such exercise.
The Board need not take the
same action or actions with respect to all Awards or portions thereof or with respect to all Participants. The Board may take different
actions with respect to the vested and unvested portions of an Award.
In the absence of any affirmative
determination by the Board at the time of a Change in Control, each outstanding Award will be assumed or an equivalent Award will be substituted
by such successor corporation or a parent or subsidiary of such successor corporation (the “Successor Corporation”),
unless the Successor Corporation does not agree to assume the Award or to substitute an equivalent Award, in which case the vesting of
such Award will accelerate in its entirety (along with, if applicable, the time at which the Award may be exercised) to a date prior to
the effective time of such Change in Control as the Board will determine (or, if the Board will not determine such a date, to the date
that is 5 days prior to the effective date of the Change in Control), with such Award terminating if not exercised (if applicable) at
or prior to the effective time of the Change in Control, and with such exercise reversed if the Change in Control does not become effective.
(d)
Acceleration of Awards upon a Change in Control. An Award may be subject to additional acceleration of vesting and exercisability
upon or after a Change in Control as may be provided in the Award Document for such Award or as may be provided in any other written agreement
between the Company or any Affiliate and the Participant, but in the absence of such provision, no such acceleration will occur.
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10. |
TERMINATION OR SUSPENSION OF THIS PLAN. |
The Board or the Compensation
Committee may suspend or terminate this Plan at any time. This Plan will have no fixed expiration date; provided, however, that no Incentive
Stock Option may be granted more than 10 years after the later of (i) the Adoption Date and (ii) the adoption by the Board of any amendment
to this Plan that constitutes the adoption of a new plan for purposes of Section 422 of the Code. No Awards may be granted under this
Plan while this Plan is suspended or after it is terminated.
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11. |
EFFECTIVE DATE OF PLAN; TIMING OF FIRST GRANT OR EXERCISE. |
No Stock Award may be exercised
(or, in the case of a Restricted Stock Award, Restricted Stock Unit Award, or Performance Stock Award, may be granted) and no Performance
Cash Award may be settled unless and until this Plan has been approved by the stockholders of the Company, which approval will be within
12 months before or after the Adoption Date. The Plan was approved by the Board on the Adoption Date and shall become effective on the
Effective Date, subject to stockholder approval on such date. Subject to earlier termination as provided in Section 10, no new
Stock Awards may be granted under this Plan on or after October 8, 2030; provided, however, that Stock Awards outstanding on such date
shall remain subject to the terms of the Plan and any applicable Award Document.
The laws of the State of Delaware
will govern all questions concerning the construction, validity and interpretation of this Plan, without regard to that state’s
conflict of laws rules.
As used in this Plan, the
following definitions will apply to the capitalized terms indicated below:
(a)
“Adoption Date” means August 5, 2020, which is the date of adoption of this Plan by the Board.
(b)
“Affiliate” means, at the time of determination, any “parent” or “subsidiary” of the Company,
as such terms are defined in Rule 405 of the Securities Act. The Board will have the authority to determine the time or times at which
“parent” or “subsidiary” status is determined within the foregoing definition.
(c)
“Award” means a Stock Award or a Performance Cash Award.
(d)
“Award Document” means a written agreement between the Company and a Participant, or a written notice issued by the
Company to a Participant, evidencing the terms and conditions of an Award.
(e)
“Board” means the Board of Directors of the Company.
(f)
“Capital Stock” means each and every class of common stock of the Company, regardless of the number of votes per share.
(g)
“Capitalization Adjustment” means any change that is made in, or other events that occur with respect to, the Common
Stock subject to this Plan or subject to any Stock Award after the Adoption Date without the receipt of consideration by the Company through
merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, large
nonrecurring cash dividend, stock split, reverse stock split, liquidating dividend, combination of shares, exchange of shares, change
in corporate structure or other similar equity restructuring transaction, as that term is used in Financial Accounting Standards Board
Accounting Standards Codification Topic 718 (or any successor thereto). Notwithstanding the foregoing, the conversion of any convertible
securities of the Company will not be treated as a Capitalization Adjustment.
(h)
“Cause” will have the meaning ascribed to such term in any written agreement between the Participant and the Company
or any Affiliate defining such term and, in the absence of such agreement, such term means, with respect to a Participant, the occurrence
of any of the following events: (i) Participant’s failure substantially to perform his or her duties and responsibilities to the
Company or any Affiliate or violation of a policy of the Company or any Affiliate; (ii) Participant’s commission of any act of fraud,
embezzlement, dishonesty or any other misconduct that has caused or is reasonably expected to result in injury to the Company or any Affiliate;
(iii) unauthorized use or disclosure by Participant of any proprietary information or trade secrets of the Company or any other party
to whom the Participant owes an obligation of nondisclosure as a result of his or her relationship with the Company or any Affiliate;
or (iv) Participant’s breach of any of his or her obligations under any written agreement or covenant with the Company or any Affiliate.
The determination as to whether a Participant is being terminated for Cause will be made in good faith by the Company and will be final
and binding on the Participant. Any determination by the Company that the Continuous Service of a Participant was terminated with or without
Cause for the purposes of outstanding Awards held by such Participant will have no effect upon any determination of the rights or obligations
of the Company, any Affiliate or such Participant for any other purpose.
(i)
“Change in Control” means the occurrence, in a single transaction or in a series of related transactions, of any one
or more of the following events:
(i)
any Exchange Act Person becomes the Owner, directly or indirectly, of securities of the Company representing more than 50% of the combined
voting power of the Company’s then outstanding securities other than by virtue of a merger, consolidation or similar transaction;
(ii)
there is consummated a merger, consolidation or similar transaction involving (directly or indirectly) the Company and, immediately after
the consummation of such merger, consolidation or similar transaction, the stockholders of the Company immediately prior thereto do not
Own, directly or indirectly, either (A) outstanding voting securities representing 50% or more of the combined outstanding voting power
of the surviving Entity in such merger, consolidation or similar transaction or (B) 50% or more of the combined outstanding voting power
of the parent of the surviving Entity in such merger, consolidation or similar transaction, in each case in substantially the same proportions
as their Ownership of the outstanding voting securities of the Company immediately prior to such transaction;
(iii)
there is consummated a sale, lease, license or other disposition of all or substantially all of the consolidated assets of the Company
and its Subsidiaries, other than a sale, lease, license or other disposition of all or substantially all of the consolidated assets of
the Company and its Subsidiaries to an Entity, more than 50% of the combined voting power of the voting securities of which are Owned
by stockholders of the Company in substantially the same proportions as their Ownership of the outstanding voting securities of the Company
immediately prior to such sale, lease, license or other disposition; or
(iv)
individuals who, on the Adoption Date, are members of the Board (the “Incumbent Board”) cease for any reason to constitute
at least a majority of the members of the Board; provided, however, that if the appointment or election (or nomination for election) of
any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new
member will, for purposes of this Plan, be considered as a member of the Incumbent Board.
Notwithstanding the foregoing
definition or any other provision of this Plan, (A) the term Change in Control will not include a sale of assets, merger or other transaction
effected exclusively for the purpose of changing the domicile of the Company, and (B) the definition of Change in Control (or any analogous
term) in an individual written agreement between the Company or any Affiliate and the Participant will supersede the foregoing definition
with respect to Awards subject to such agreement; provided, however, that if no definition of Change in Control or any analogous term
is set forth in such an individual written agreement, the foregoing definition will apply.
If required for compliance
with Section 409A of the Code, in no event will a Change in Control be deemed to have occurred if such transaction is not also a “change
in the ownership or effective control of” the Company or “a change in the ownership of a substantial portion of the assets
of” the Company as determined under U.S. Treasury Regulation Section 1.409A-3(i)(5) (without regard to any alternative definition
thereunder). The Board may, in its sole discretion and without a Participant’s consent, amend the definition of “Change in
Control” to conform to the definition of “Change in Control” under Section 409A of the Code, and the regulations thereunder.
(j)
“Code” means the U.S. Internal Revenue Code of 1986, as amended, including any applicable regulations and guidance
thereunder.
(k)
“Committee” means a committee of one (1) or more Directors to whom authority has been delegated by the Board in accordance
with Section 2(d).
(l)
“Compensation Committee” means the Compensation Committee of the Board.
(m)
“Common Stock” means the common stock of the Company.
(n)
“Company” Phio Pharmaceuticals Corp., a Delaware corporation.
(o)
“Consultant” means any person, including an advisor, who is (i) engaged by the Company or an Affiliate to render consulting
or advisory services and is compensated for such services, or (ii) serving as a member of the board of directors of an Affiliate and is
compensated for such services. However, service solely as a Director, or payment of a fee for such service, will not cause a Director
to be considered a “Consultant” for purposes of this Plan. Notwithstanding the foregoing, a person is treated as a Consultant
under this Plan only if a Form Registration Statement on Form S-8 or a successor form under the Securities Act is available to register
either the offer or the sale of the Company’s securities to such person.
(p)
“Continuous Service” means that the Participant’s service with the Company or an Affiliate, whether as an Employee,
Director or Consultant, is not interrupted or terminated. A change in the capacity in which the Participant renders service to the Company
or an Affiliate as an Employee, Consultant or Director or a change in the Entity for which the Participant renders such service, provided
that there is no interruption or termination of the Participant’s service with the Company or an Affiliate, will not terminate a
Participant’s Continuous Service. For example, a change in status from an Employee of the Company to a Consultant of an Affiliate
or to a Director will not constitute an interruption of Continuous Service. If the Entity for which a Participant is rendering services
ceases to qualify as an Affiliate, as determined by the Board in its sole discretion, such Participant’s Continuous Service will
be considered to have terminated on the date such Entity ceases to qualify as an Affiliate. To the extent permitted by law, the Board
or the chief executive officer of the Company, in that party’s sole discretion, may determine whether Continuous Service will be
considered interrupted in the case of (i) any leave of absence approved by the Board or chief executive officer, including sick leave,
military leave or any other personal leave, or (ii) transfers between the Company, an Affiliate, or their successors. In addition, if
required for exemption from or compliance with Section 409A of the Code, the determination of whether there has been a termination of
Continuous Service will be made, and such term will be construed, in a manner that is consistent with the definition of “separation
from service” as defined under U.S. Treasury Regulation Section 1.409A-1(h) (without regard to any alternative definition thereunder).
A leave of absence will be treated as Continuous Service for purposes of vesting in a Stock Award only to such extent as may be provided
in the applicable Award Document, the Company’s leave of absence policy, in the written terms of any leave of absence agreement
or policy applicable to the Participant, or as otherwise required by law.
(q)
“Director” means a member of the Board.
(r) “Disability”
means, with respect to a Participant, the inability of such Participant to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to
last for a continuous period of not less than 12 months as provided in Sections 22(e)(3) and 409A(a)(2)(C)(i) of the Code, and will be
determined by the Board on the basis of such medical evidence as the Board deems warranted under the circumstances.
(s)
“Effective Date” means October 8, 2020.
(t)
“Employee” means any person providing services as an employee of the Company or an Affiliate. However, service solely
as a Director, or payment of a fee for such services, will not cause a Director to be considered an “Employee” for purposes
of this Plan.
(u)
“Entity” means a corporation, partnership, limited liability company or other entity.
(v)
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
(w)
“Exchange Act Person” means any natural person, Entity or “group” (within the meaning of Section 13(d)
or 14(d) of the Exchange Act), except that “Exchange Act Person” will not include (i) the Company or any Subsidiary of the
Company, (ii) any employee benefit plan of the Company or any Subsidiary of the Company or any trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any Subsidiary of the Company, (iii) an underwriter temporarily holding securities pursuant
to a registered public offering of such securities, (iv) an Entity Owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their Ownership of stock of the Company, or (v) any natural person, Entity or “group”
(within the meaning of Section 13(d) or 14(d) of the Exchange Act) that, as of the Effective Date, is the Owner, directly or indirectly,
of securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding securities.
(x)
“Fair Market Value” means, as of any date, the value of the Common Stock determined as follows:
(i)
If the Common Stock is listed on any established stock exchange or traded on any established market, the Fair Market Value of a share
of Common Stock as of any date of determination will be, unless otherwise determined by the Board, the closing sales price for such stock
as quoted on such exchange or market (or the exchange or market with the greatest volume of trading in the Common Stock) on the date of
determination, as reported in a source the Board deems reliable.
(ii)
Unless otherwise provided by the Board, if there is no closing sales price for the Common Stock on the date of determination, then the
Fair Market Value will be the closing selling price on the last preceding date for which such quotation exists.
(iii)
In the absence of such markets for the Common Stock, the Fair Market Value will be determined by the Board in good faith and in a manner
that complies with Sections 409A and 422 of the Code.
(y)
“Incentive Stock Option” means an option granted pursuant to Section 5 of this Plan that is intended to be,
and that qualifies as, an “incentive stock option” within the meaning of Section 422 of the Code.
(z)
“Non-Employee Director” means a Director who either (i) is not a current employee or officer of the Company or an Affiliate,
does not receive compensation, either directly or indirectly, from the Company or an Affiliate for services rendered as a consultant or
in any capacity other than as a Director (except for an amount as to which disclosure would not be required under Item 404(a) of Regulation
S-K promulgated pursuant to the Securities Act (“Regulation S-K”)), does not possess an interest in any other transaction
for which disclosure would be required under Item 404(a) of Regulation S-K, and is not engaged in a business relationship for which disclosure
would be required pursuant to Item 404(b) of Regulation S-K; or (ii) is otherwise considered a “non-employee director” for
purposes of Rule 16b-3 of the Exchange Act.
(aa)
“Nonstatutory Stock Option” means any option granted pursuant to Section 5 of this Plan that does not qualify
as an Incentive Stock Option.
(bb)
“Officer” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act.
(cc)
“Option” means an Incentive Stock Option or a Nonstatutory Stock Option to purchase shares of Common Stock granted
pursuant to this Plan.
(dd)
“Option Agreement” means an Award Document evidencing the terms and conditions of an Option grant. Each Option Agreement
will be subject to the terms and conditions of this Plan.
(ee)
“Optionholder” means a person to whom an Option is granted pursuant to this Plan or, if applicable, such other person
who holds an outstanding Option.
(ff)
“Own,” “Owned,” “Owner,” “Ownership” means a person or Entity
will be deemed to “Own,” to have “Owned,” to be the “Owner” of, or to have acquired “Ownership”
of securities if such person or Entity, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise,
has or shares voting power, which includes the power to vote or to direct the voting, with respect to such securities.
(gg)
“Participant” means a person to whom an Award is granted pursuant to this Plan or, if applicable, such other person
who holds an outstanding Stock Award.
(hh)
“Performance Cash Award” means an award of cash granted pursuant to the terms and conditions of Section 6(c)(ii).
(ii)
“Performance Period” means the period of time selected by the Board over which the attainment of one or more performance
goals will be measured for the purpose of determining a Participant’s right to and the payment of a Stock Award or a Performance
Cash Award. Performance Periods may be of varying and overlapping duration, at the sole discretion of the Board.
(jj)
“Performance Stock Award” means a Stock Award granted under the terms and conditions of Section 6(c)(i).
(kk)
“Plan” means this 2020 Phio Pharmaceuticals Corp. Long Term Incentive Plan, as amended and restated from time to time.
(ll)
“Restricted Stock Award” means an award of shares of Common Stock which is granted pursuant to the terms and conditions
of Section 6(a).
(mm)
“Restricted Stock Award Document” means an Award Document evidencing the terms and conditions of a Restricted Stock
Award grant. Each Restricted Stock Award Document will be subject to the terms and conditions of this Plan.
(nn)
“Restricted Stock Unit Award” means a right to receive shares of Common Stock which is granted pursuant to the terms
and conditions of Section 6(b).
(oo)
“Restricted Stock Unit Award Document” means an Award Document evidencing the terms and conditions of a Restricted
Stock Unit Award grant. Each Restricted Stock Unit Award Document will be subject to the terms and conditions of this Plan.
(pp)
“Securities Act” means the U.S. Securities Act of 1933, as amended.
(qq)
“Stock Appreciation Right” or “SAR” means a right to receive the appreciation on Common Stock that
is granted pursuant to the terms and conditions of Section 5.
(rr)
“Stock Appreciation Right Award Document” means an Award Document evidencing the terms and conditions of a Stock Appreciation
Right grant. Each Stock Appreciation Right Award Document will be subject to the terms and conditions of this Plan.
(ss)
“Stock Award” means any right to receive Common Stock granted under this Plan, including an Incentive Stock Option,
a Nonstatutory Stock Option, a Restricted Stock Award, a Restricted Stock Unit Award, a Stock Appreciation Right, or a Performance Stock
Award.
(tt)
“Stock Award Document” means an Award Document evidencing the terms and conditions of a Stock Award grant. Each Stock
Award Document will be subject to the terms and conditions of this Plan.
(uu)
“Subsidiary” means, with respect to the Company, (i) any corporation of which more than 50% of the outstanding capital
stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the
time, stock of any other class or classes of such corporation will have or might have voting power by reason of the happening of any contingency)
is at the time, directly or indirectly, Owned by the Company, and (ii) any partnership, limited liability company or other entity in which
the Company has a direct or indirect interest (whether in the form of voting or participation in profits or capital contribution) of more
than 50%.
(vv)
“Ten Percent Stockholder” means a person who Owns (or is deemed to Own pursuant to Section 424(d) of the Code) stock
possessing more than 10% of the total combined voting power of all classes of stock of the Company or any Affiliate.
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