As filed with the Securities and Exchange Commission
on July 17, 2023.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT
NO. 333-193735
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT
NO. 333-195957
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT
NO. 333-201672
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT NO. 333-208948
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8 REGISTRATION STATEMENT NO. 333-215421
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT NO. 333-222471
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT NO. 333-229161
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8
REGISTRATION STATEMENT NO. 333-235942
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT NO. 333-252350
POST-EFFECTIVE
AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT NO. 333-262377
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT
NO. 333-269396
UNDER THE SECURITIES ACT OF 1933
TREVENA, INC.
(Exact name of Registrant as specified in its
charter)
| Delaware |
|
26-1469215 |
| (State or other jurisdiction of incorporation or organization) |
|
(I.R.S. Employer Identification No.) |
| |
|
|
|
955 Chesterbrook Boulevard, Suite 110
Chesterbrook, Pennsylvania 19087 |
| (Address of principal executive offices) |
Trevena, Inc. 2013 Equity Incentive Plan
Trevena, Inc. 2023 Equity Incentive Plan
(Full title of the plan)
Carrie L. Bourdow
President and Chief Executive Officer
Trevena, Inc.
955 Chesterbrook Boulevard, Suite 110
Chesterbrook, Pennsylvania 19087
(Name and Address of Agent For Service)
Telephone: (610) 354-8840
(Telephone Number, Including Area Code, of Agent For Service)
Copies of all communications to:
|
Brian M. Katz, Esq.
Scott R. Jones, Esq.
Troutman Pepper Hamilton Sanders LLP
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103-2799
(215) 981-4000 |
Barry Shin
Chief Financial Officer
Trevena, Inc.
955 Chesterbrook Boulevard, Suite 110
Chesterbrook, PA 19087
(610) 354-8840 |
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
¨ |
|
Accelerated filer |
¨ |
| Non-accelerated filer |
x |
|
Smaller reporting company |
x |
| |
|
|
Emerging growth company |
¨ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
EXPLANATORY NOTE
Trevena, Inc.,
a Delaware corporation (the “Company”), previously filed Registration Statements on Form S-8, File Nos. 333-193735,
333-195957, 333-201672, 333-208948, 333-215421, 333-222471, 333-229161, 333-235942, 333-252350, 333-262377 and 333-269396, with the Securities
and Exchange Commission (the “Commission”) on February 4, 2014, May 14, 2014, January 23, 2015, January 11,
2016, January 4, 2017, January 8, 2018, January 8, 2019, January 16, 2020, January 22, 2021, January 27,
2022, and January 24, 2023, respectively (the “Prior Registration Statements”), with respect to an aggregate 33,304,266
shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), issuable under the Trevena, Inc.
2013 Equity Incentive Plan (as amended, the “Former Plan”) and predecessor plans.
On
June 15, 2023 (the “Effective Date”), the Company’s stockholders approved the Trevena, Inc. 2023 Equity
Incentive Plan (the “2023 Plan”) and, in connection therewith, no further awards will be made under the Former Plan.
Pursuant to the terms of the 2023 Plan, (i) the number of shares of Common Stock that were subject to outstanding awards under the
Former Plan as of the Effective Date that subsequently cease to be subject to such awards as a result of the termination, expiration,
cancellation or forfeiture of such awards and (ii) the number of shares of Common Stock withheld on or after the Effective Date in
settlement of tax withholding obligations associated with outstanding awards under the Former Plan, or in satisfaction of the exercise
price payable upon exercise of outstanding awards under the Former Plan (collectively, the “Rollover Shares”), may
become available for issuance under the 2023 Plan in accordance with the terms thereof. On the Effective Date, a total of 884,043 shares
of Common Stock were subject to awards then outstanding under the Former Plan.
The
Company is filing this Post-Effective Amendment No. 1 to Registration Statements on Form S-8 (this “Post-Effective
Amendment”) pursuant to SEC Compliance and Disclosure Interpretation 126.43 to amend the Prior Registration Statements to register
the offer of an aggregate of 884,043 shares of Common Stock under the 2023 Plan. For the avoidance of doubt, the Company is not hereby
registering any additional shares of Common Stock that were not previously approved by the Company’s stockholders as of the Effective
Date. Contemporaneously with the filing of this Post-Effective Amendment, the Company is filing a new registration statement on Form S-8
to register an additional 978,595 shares of Common Stock for issuance under the 2023 Plan, which was approved by the Company’s stockholders
on the Effective Date.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which
have been filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), are incorporated in this Registration Statement by reference:
(a) The Company’s Annual Report on Form 10-K for the year ended December 31, 2022, as filed with the Commission on March 30, 2023;
(b) The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, as filed with the Commission on May 15, 2023;
(c) The Company’s Definitive Proxy Statement on Schedule 14A, as filed with the Commission on April 28, 2023;
(d) The
Company’s Current Reports on Form 8-K (other than portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K
and exhibits accompanying such reports that are related to such items) as filed with the Commission on January 9, 2023, March 13, 2023, March 30, 2023, April 21, 2023, May 8, 2023, May 9, 2023, May 15, 2023, May 30, 2023, June 20, 2023 (as amended by the Company’s Current Report on Form 8-K/A as filed with the Commission on July 6, 2023), and June 26, 2023; and
(e) The
description of the Company’s Common Stock contained in Exhibit 4.6
to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, as filed with the
Commission on March 12, 2020.
All reports and other documents
subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement, but prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents.
Any statement contained in
a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company is organized under
the laws of the State of Delaware. The General Corporation Law of the State of Delaware, as amended (the “DGCL”), provides
that a Delaware corporation has the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or
in the right of the corporation) by reason of the fact that the person is or was a director or officer of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expense, liability or loss (including attorneys’ fees, judgments, fines and amounts paid in settlement)
reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner
the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. In the case of an action or suit brought by
or in the right of the corporation, indemnification of any director, officer and other agent against expenses actually and reasonably
incurred by such person in connection with the defense or settlement of such action or suit is permitted if such person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation; however, no indemnification
is permitted in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation,
unless and only to the extent that the Delaware Court of Chancery, or the court in which such action or suit was brought, shall determine
upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.
Article XI, Section 43(a) of
the Company’s Amended and Restated Bylaws (as amended, the “Bylaws”) provides for the indemnification of the
Company’s directors to the fullest extent not prohibited by the DGCL or any other applicable law; provided, however,
that the Company may modify the extent of such indemnification by individual contracts with its directors; and, provided, further,
that the Company shall not be required to indemnify any director in connection with any proceeding (or part thereof) initiated by such
person unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the board
of directors of the Company, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers
vested in the Company under the DGCL or any other applicable law or (iv) such indemnification is required to be made under subsection
(d). Article XI, Section 43(b) of the Company’s Bylaws authorizes the Company to indemnify its officers as set forth
in the DGCL or any other applicable law. The Company has entered into separate indemnification agreements with each of its current directors
and officers pursuant to the foregoing provisions.
Article XI, Section 43(c) of
the Bylaws provides that the Company shall advance to any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that
he or she is or was a director of the Company, or is or was serving at the request of the Company as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, prior to the final disposition of the proceeding, promptly following
request therefor, all expenses incurred by any director in connection with such proceeding; provided, however, that, if
the DGCL requires, an advancement of expenses incurred by a director in his or her capacity as a director (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made
only upon delivery to the Company of an undertaking, by or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no further right to appeal that such indemnitee is not entitled
to be indemnified for such expenses under Article XI, Section 43(c) of the Bylaws or otherwise. Article XI, Section 43(d) of
the Bylaws provides that any right to indemnification or advances to directors under the Bylaws shall be deemed to be contractual rights
and be effective to the same extent and as if provided for in a contract between the Company and the director. Any right to indemnification
or advances granted by the Bylaws to a director shall be enforceable by or on behalf of the person holding such right in any court of
competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part or (ii) no disposition
of such claim is made within ninety (90) days of request therefor. To the extent permitted by law, the claimant in such enforcement action,
if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting the claim. In connection with any claim
for indemnification, the Company shall be entitled to raise as a defense to any such action that the claimant has not met the standards
of conduct that make it permissible under the DGCL or any other applicable law for the Company to indemnify the claimant for the amount
claimed. Neither the failure of the Company (including its board of directors, independent legal counsel or its stockholders) to have
made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because
the director has met the applicable standard of conduct set forth in the DGCL or any other applicable law, nor an actual determination
by the Company (including its board of directors, independent legal counsel or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct.
In any suit brought by a director to enforce a right to indemnification or to an advancement of expenses hereunder, the burden of proving
that the director is not entitled to be indemnified, or to such advancement of expenses, under Article XI, Section 43(d) of
the Bylaws or otherwise shall be on the Company.
Under the DGCL, a Delaware
corporation has the power to purchase and maintain insurance on behalf of any director, officer, employee or other agent of the Company
or, if serving in such capacity at the request of the Company, of another enterprise, against any liability asserted against such person
and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation
has the power to indemnify such person against such liability under the DGCL. The Company has purchased directors and officers liability
insurance. A Delaware corporation also may, with certain limitations, set forth in its certificate of incorporation a provision eliminating
or limiting the personal liability of a director or officer to the corporation or its stockholders for monetary damages for breach of
a fiduciary duty as a director or officer, provided that such provision shall not eliminate or limit the liability of (1) a director
or officer for any breach of the director’s or officer’s duty of loyalty to the Company or its stockholders, (2) a director
or officer for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) a director
under Section 174 of the DGCL (relating to unlawful payments of dividends or stock repurchases), (4) a director or officer for
any transaction from which the director derived an improper personal benefit, or (5) an officer in any action by or in the right
of the Company. Article VI of the Company’s Amended and Restated Certificate of Incorporation, as amended, includes a provision
eliminating the liability of the Company’s directors for monetary damages to the fullest extent permitted under the DGCL.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits filed as part
of this Registration Statement are as follows:
| Exhibit Number |
Description |
| 4.1 |
Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the Commission on February 5, 2014). |
| 4.2 |
Certificate of Amendment of Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to Company’s Current Report on Form 8-K, filed with the Commission on May 21, 2018). |
| 4.3 |
Certificate of Amendment of Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to Company’s Current Report on Form 8-K, filed with the Commission on November 9, 2022). |
| 4.4 |
Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to Company’s Current Report on Form 8-K, filed with the Commission on August 1, 2022). |
| 4.5 |
Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock (incorporated by reference to Exhibit 3.2 to Company’s Current Report on Form 8-K, filed with the Commission on August 1, 2022). |
| 4.6 |
Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K, filed with the Commission on February 5, 2014). |
| 4.7 |
Amendment No. 1 to Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.3 to Company’s Current Report on Form 8-K, filed with the Commission on August 1, 2022). |
| 4.8 |
Form Warrant issued by Trevena, Inc. to Oxford Finance LLC, Pacific Western Bank and Three Point Capital, LLC (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed with the Commission on December 23, 2015). |
| 4.9 |
Form of Warrant (incorporated by reference to Exhibit 4.1 to Company’s Current Report on Form 8-K, filed with the Commission on August 1, 2022). |
| 4.10 |
Form of Pre-Funded Warrant (incorporated by reference to Exhibit 4.1 to Company’s Current Report on Form 8-K, filed with the Commission on November 18, 2022). |
| 4.11 |
Form of Warrant (incorporated by reference to Exhibit 4.2 to Company’s Current Report on Form 8-K, filed with the Commission on November 18, 2022). |
| 5.1 |
Opinion of Cooley LLP as to legality (incorporated by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-8, filed with the Commission on February 4, 2014). |
| 5.2 |
Opinion of Cooley LLP (incorporated by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-8, filed with the Commission on May 14, 2014). |
| 5.3 |
Opinion of Cooley LLP (incorporated by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-8, filed with the Commission on January 23, 2015). |
| 5.4 |
Opinion of Cooley LLP (incorporated by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-8, filed with the Commission on January 11, 2016). |
| 5.5 |
Opinion of Cooley LLP (incorporated by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-8, filed with the Commission on January 4, 2017). |
| 5.6 |
Opinion of Cooley LLP (incorporated by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-8, filed with the Commission on January 8, 2018). |
| 5.7 |
Opinion of Cooley LLP (incorporated by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-8, filed with the Commission on January 8, 2019). |
| 5.8 |
Opinion of Cooley LLP (incorporated by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-8, filed with the Commission on January 16, 2020). |
| 5.9 |
Opinion of Troutman Pepper Hamilton Sanders LLP (incorporated by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-8, filed with the Commission on January 22, 2021). |
| 5.10 |
Opinion of Troutman Pepper Hamilton Sanders LLP (incorporated by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-8, filed with the Commission on January 27, 2022). |
| 5.11 |
Opinion of Troutman Pepper Hamilton Sanders LLP (incorporated by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-8, filed with the Commission on January 25, 2023). |
| 5.12* |
Opinion of Troutman Pepper Hamilton Sanders LLP as to the legality of the shares of Common Stock being registered hereby which may be issued by the Company under the 2023 Plan that were previously registered with respect to the Former Plan, dated July 17, 2023. |
| 23.1* |
Consent of Ernst & Young LLP. |
| 23.2* |
Consent of Troutman Pepper Hamilton Sanders LLP (contained in Exhibit 5.12). |
| 24.1* |
Power of Attorney (set forth on the signature page of this Registration Statement). |
| 99.1* |
Filing Fee Table. |
* Filed herewith.
Item 9. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
| |
(i) |
To include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”); |
| |
(ii) |
To reflect in the prospectus
any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and |
| |
(iii) |
To include any material information
with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information
in this registration statement; |
provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13
or 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in Chesterbrook, Pennsylvania, on this 17th day of July, 2023.
| |
TREVENA, INC.
(Registrant) |
| |
|
|
| |
By: |
/s/ Carrie L. Bourdow |
| |
Name: |
Carrie L. Bourdow |
| |
Title: |
President and Chief Executive Officer |
Pursuant to the requirements
of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Each person in so signing
also makes, constitutes and appoints Carrie L. Bourdow and Barry Shin his or her true and lawful attorney-in-fact, with full power of
substitution, to execute and cause to be filed with the Commission pursuant to the requirements of the Securities Act, any and all amendments
and post-effective amendments to this Registration Statement, with exhibits to such registration statements and amendments and other documents
in connection therewith, and hereby ratifies and confirms all that said attorney-in-fact or his or her substitute or substitutes may do
or cause to be done by virtue hereof.
| Signature |
|
Title |
|
Date |
Principal Executive Officer: |
|
|
|
|
| |
|
|
|
|
| /s/ Carrie L. Bourdow |
|
President, Chief Executive Officer, and Director |
|
July 17, 2023 |
| Carrie L. Bourdow |
|
|
|
|
| |
|
|
|
|
Principal Financial and
Accounting Officer:
|
|
|
|
|
| /s/ Barry Shin |
|
Chief Financial Officer |
|
July 17, 2023 |
| Barry Shin |
|
|
|
|
| |
|
|
|
|
Board of Directors:
|
|
|
|
|
| /s/ Leon O. Moulder, Jr. |
|
Chairman of the Board of Directors |
|
July 17, 2023 |
| Leon O. Moulder, Jr. |
|
|
|
|
| |
|
|
|
|
| /s/ Scott Braunstein |
|
Director |
|
July 17, 2023 |
| Scott Braunstein |
|
|
|
|
| |
|
|
|
|
| /s/ Michael R. Dougherty |
|
Director |
|
July 17, 2023 |
| Michael R. Dougherty |
|
|
|
|
| |
|
|
|
|
| /s/ Marvin H. Johnson, Jr. |
|
Director |
|
July 17, 2023 |
| Marvin H. Johnson, Jr. |
|
|
|
|
| |
|
|
|
|
| /s/ Jake R. Nunn |
|
Director |
|
July 17, 2023 |
| Jake R. Nunn |
|
|
|
|
| |
|
|
|
|
| /s/ Anne M. Phillips |
|
Director |
|
July 17, 2023 |
| Anne M. Phillips, M.D. |
|
|
|
|
| |
|
|
|
|
| /s/ Barbara Yanni |
|
Director |
|
July 17, 2023 |
| Barbara Yanni |
|
|
|
|
Exhibit 5.12
| Troutman Pepper
Hamilton Sanders LLP |
 |
| 3000 Two Logan Square, Eighteenth
and Arch Streets |
Philadelphia, PA 19103-2799
|
| troutman.com |
July 17, 2023
Trevena, Inc.
955 Chesterbrook Boulevard, Suite 110
Chesterbrook, Pennsylvania 19087
| RE: | Post- Effective Amendment No. 1 to Registration Statement on Form S-8 (File Nos. 333-193735, 333-195957, 333-201672,
333-208948, 333-215421, 333-222471, 333-229161, 333-235942, 333-252350, 333-262377 and 333-269396) |
Ladies and Gentlemen:
We have acted as counsel to
Trevena, Inc., a Delaware corporation (the “Company”), in connection with the Post-Effective Amendment No. 1 to
Registration Statement on Form S-8 (File Nos. 333-193735, 333-195957, 333-201672, 333-208948, 333-215421, 333-222471, 333-229161,
333-235942, 333-252350, 333-262377 and 333-269396) (the “Post-Effective Amendment”), as filed by the Company with the Securities
and Exchange Commission (the “Commission”) on the date hereof, pursuant to the Securities Act of 1933, as amended (the “Securities
Act”), to register certain shares of common stock, par value $0.001 per share (the “Common Stock”), of the Company (the
“Shares”), which may be issued by the Company from time to time pursuant to the Company’s 2023 Equity Incentive Plan
(the “2023 Plan”), which Shares were originally authorized for issuance under the Trevena, Inc. 2013 Equity Incentive
Plan (as amended, the “Former Plan,” and together with the 2023 Plan, the “Plans”). The maximum number of such
Shares is 884,043, as further described in the “Explanatory Note” to the Post-Effective Amendment.
This opinion is being furnished
in accordance with the requirements of Item 8(a) of Form S-8 and Item 601(b)(5)(i) of Regulation S-K. No opinion
is expressed herein as to any matter pertaining to the contents of the Post-Effective Amendment or the related prospectuses, other than
as expressly stated herein with respect to the issuance of the Shares.
We have examined originals
or copies of such corporate records, agreements and instruments of the Company, statements and certificates of public officials and officers
of the Company, and such other documents, records and instruments, including the Plans, and we have made such legal and factual inquiries
as we have deemed necessary or appropriate as a basis for us to render the opinions hereinafter expressed. In our examination of the foregoing,
we have assumed the genuineness of all signatures, the legal competence and capacity of natural persons, the accuracy and completeness
of all documents submitted to us, the authenticity of documents submitted to us as originals and the conformity with authentic original
documents of all documents submitted to us as copies. As to all matters of fact, we have relied on the representations and statements
of fact made in the documents so reviewed, and we have not independently established the facts so relied on.
| July 17, 2023 |
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In connection herewith, we
have assumed that (i) all of the documents referred to in this opinion letter have been duly authorized by, have been duly executed
and delivered by, and constitute the valid, binding and enforceable obligations of, all of the parties to such documents, (ii) all
of the signatories to the documents referred to in this opinion letter have been duly authorized, and (iii) all of the parties to
the documents referred to in this opinion letter are duly organized and validly existing and have the power and authority (corporate or
other) to execute, deliver and perform such documents.
We do not purport to express
an opinion on any laws other than the laws of the State of Delaware. The opinions set forth herein are made as of the date hereof and
are subject to, and may be limited by, future changes in the factual matters set forth herein, and we undertake no duty to advise you
of the same. The opinions expressed herein are based upon the law in effect (and published or otherwise generally available) on the date
hereof, and we assume no obligation to revise or supplement these opinions should such law be changed by legislative action, judicial
decision or otherwise. In rendering our opinions, we have not considered, and hereby disclaim any opinion as to, the application or impact
of any laws, cases, decisions, rules or regulations of any other jurisdiction, court or administrative agency.
Subject to the foregoing and the other matters
set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer
agent and registrar therefor in the name or on behalf of the purchasers and have been issued and sold by the Company as contemplated by
the 2023 Plan, assuming in each case that the individual issuances, grants or awards under the 2023 Plan are duly authorized by all necessary
corporate action and duly issued, granted or awarded and exercised in accordance with the requirements of law and the 2023 Plan (and the
agreements and awards duly adopted thereunder and in accordance therewith), the Shares will be legally and validly issued, fully paid
and nonassessable.
We do not render any opinions except as set forth
above. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Post-Effective Amendment. We also consent to your filing
copies of this opinion as an exhibit to the Post-Effective Amendment with such agencies of such states as you deem necessary in the course
of complying with the laws of such states regarding the offering and sale of the securities addressed herein. In giving this consent,
we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and
regulations promulgated thereunder by the Commission.
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Very
truly yours, |
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/s/
Troutman Pepper Hamilton Sanders LLP |
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Troutman
Pepper Hamilton Sanders LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the incorporation by reference in Post-Effective Amendment
No. 1 to the Registration Statements (Form S-8 Nos. 333-193735, 333-195957, 333-201672, 333-208948, 333-215421, 333-222471, 333-229161,
333-235942, 333-252350, 333-262377 and 333-269396) pertaining to the 2013 Equity Incentive Plan and 2023 Equity Incentive Plan of Trevena,
Inc. of our report dated March 30, 2023, with respect to the consolidated financial statements of Trevena, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
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/s/ Ernst & Young LLP |
| Philadelphia, Pennsylvania |
| July 17, 2023 |
EXHIBIT 99.1
Calculation of Filing Fee Table
Form S-8
(Form Type)
Trevena, Inc.
(Exact Name of Registrant as Specified in its
Charter)
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| Table 1 – Newly Registered Securities |
| Security Type |
Security Class Title |
Fee
Calculation
Rule(4) |
Amount
Registered(1) (3)(4) |
Proposed
Maximum
Offering
Price Per
Unit(4) |
Maximum Aggregate
Offering Price(4) |
Fee Rate(4) |
Amount of
Registration
Fee(4) |
| Equity |
Common Stock, par value $0.001 per share |
N/A |
884,043(2) |
N/A |
N/A |
N/A |
N/A |
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| Total Offering Amounts |
|
N/A |
|
N/A |
| Total Fee Offsets |
|
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|
$− |
| Net Fee Due |
|
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|
N/A |
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this registration statement
shall include an additional indeterminate number of shares of the common stock, par value $0.001 per share (the “Common Stock”),
of Trevena, Inc., a Delaware corporation (the “Registrant”), that may become issuable under the Trevena, Inc. 2013
Equity Incentive Plan (as amended, the “Former Plan”) and the Trevena, Inc. 2023 Equity Incentive Plan (the “2023
Plan”) as a result of any future stock splits, stock dividends or similar adjustments of the Registrant’s outstanding Common
Stock. |
| (2) | Represents additional shares of the Registrant’s Common Stock subject to outstanding awards under
the Former Plan that (i) cease to be subject to such awards as a result of the termination, expiration, cancellation or forfeiture
of such awards on or after the effective date of the 2023 Plan (the “Effective Date”) or (ii) are withheld on or after
the Effective Date in settlement of tax withholding obligations associated with certain types of outstanding awards under the Former Plan
or in satisfaction of the exercise price payable upon exercise of certain types of outstanding awards under the Former Plan and may become
eligible to be carried over to the 2023 Plan in accordance with the terms thereof (collectively, the “Rollover Shares”). |
| (3) | As described in the “Explanatory Note” to the Post-Effective Amendment No. 1 to Registration
Statements on Form S-8 (the “Post-Effective Amendment”) to which this Exhibit 99.1 is attached, the Post-Effective
Amendment is being filed to provide that up to 884,043 shares of Common Stock (constituting the Rollover Shares) originally registered
upon the filing of the Registration Statements on Form S-8, File Nos. 333-193735, 333-195957, 333-201672, 333-208948, 333-215421,
333-222471, 333-229161, 333-235942, 333-252350, 333-262377 and 333-269396, filed with the Securities and Exchange Commission on February 4,
2014, May 14, 2014, January 23, 2015, January 11, 2016, January 4, 2017, January 8, 2018, January 8, 2019,
January 16, 2020, January 22, 2021, January 27, 2022, and January 24, 2023, respectively (the “Prior Registration
Statements”), for issuance under the Former Plan may be issued under the 2023 Plan as of the Effective Date, pursuant to and in
accordance with the terms of the 2023 Plan. |
| (4) | The filing fee for the registration of the offer of the Rollover Shares was paid in full upon the filing
of the Prior Registration Statements. Pursuant to SEC Compliance and Disclosure Interpretation 126.43, no filing fee is required for the
Post-Effective Amendment. |
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