As filed with the Securities and Exchange Commission on January 22, 2021

Registration No. 333-

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Form S-8

 

REGISTRATION STATEMENT

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)

(IRS employer

identification number)

 

955 Chesterbrook Blvd., Suite 110

Chesterbrook, Pennsylvania

19087
(Address of Principal Executive Offices) (Zip Code)

 

 

2013 Equity Incentive Plan

(Full titles of the plans)

Carrie L. Bourdow

President and Chief Executive Officer

Trevena, Inc.

955 Chesterbrook Blvd., Suite 110

Chesterbrook, Pennsylvania 19087

(610) 354-8840

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

 

Copies to:

Brian M. Katz, Esq.
Scott R. Jones, Esq.
Troutman Pepper Hamilton Sanders LLP
3000 Two Logan Square
Philadelphia, PA 19103
Telephone: (215) 981-4000
 

Barry Shin

Chief Financial Officer
Trevena, Inc.
955 Chesterbrook Blvd., 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 x
Non-accelerated filer ¨ 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. ¨

 

CALCULATION OF REGISTRATION FEE

Title of Securities
to be Registered
Amount
to be
Registered (1)
  Proposed
Maximum
Offering
Price
per Share (2)
  Proposed
Maximum
Aggregate
Offering Price (2)
  Amount of
Registration
Fee
Common Stock, par value $0.001 per share 6,399,997 shares   $ 2.15   $ 13,759,993.55   $ 1,501.22
                       

(1) Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 shall also cover any additional shares of Registrant’s common stock, par value $0.001 per share (the “Common Stock”), that become issuable under the Registrant’s 2013 Equity Incentive Plan, as amended (the “2013 EIP”), by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Common Stock.
   
(2) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) promulgated under the Securities Act. The proposed maximum offering price per share and the proposed maximum aggregate offering price are calculated using the average of the high and low prices of the Common Stock as reported on the Nasdaq Capital Market on January 21, 2021.

 

 

 

 

 

PART I

EXPLANATORY NOTE

 

This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 6,399,997 shares of the Common Stock of Trevena, Inc. (the “Registrant”) to be issued pursuant to the annual automatic increase provision set forth in Section 3(a) of the Registrant’s 2013 Equity Incentive Plan, as amended.

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The contents of the Registration Statements on Form S-8 previously filed with the Securities and Exchange Commission (the “Commission”) on February 4, 2014 (File No. 333-191735), May 14, 2014 (File No. 333-195957), January 23, 2015 (File No. 333-201672), January 11, 2016 (File No. 333-208948), January 4, 2017 (File No. 333-215421), January 8, 2018 (File No. 333-222471), January 8, 2019 (File No. 333-229161) and January 16, 2020 (File No. 333-235942) are incorporated by reference herein.

 

Item 8. Exhibits.

 

Exhibit
Number
  Exhibit Description
4.1   Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’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 Registrant (incorporated by reference to Exhibit 3.1 to Registrant’s Current Report on Form 8-K, filed with the Commission on May 21, 2018).
4.3   Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K, filed with the Commission  on February 5, 2014).
4.4   Specimen stock certificate evidencing shares of Common Stock of the Registrant (incorporated by reference to Exhibit 4.2 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-191643), originally filed with the Commission on October 9, 2013).
4.5   2013 Equity Incentive Plan, as amended (incorporated by reference to Exhibit 99.1 to the Registrant’s Registration Statement on Form S-8, filed with the Commission on May 14, 2014).
4.6   Form of Stock Option Grant Notice and Stock Option Agreement under 2013 Equity Incentive Plan (incorporated by reference to Exhibit 10.5 to Registrant’s Quarterly Report on Form 10-Q, filed with the SEC on May 7, 2015).
4.7   Form of Restricted Stock Grant Notice and Restricted Stock Unit Award Agreement under 2013 Equity Incentive Plan (incorporated by reference to Exhibit 10.13 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-191643), filed with the SEC on October 9, 2013).
5.1#   Opinion of Troutman Pepper Hamilton Sanders LLP.
23.1#   Consent of Independent Registered Public Accounting Firm.
23.2#   Consent of Troutman Pepper Hamilton Sanders LLP (included in Exhibit 5.1).
24.1#   Power of Attorney (included on the signature page of this Form S-8).

# Filed herewith.

 

 

 

 

Item 9. Undertakings.

 

1. The undersigned registrant hereby undertakes:

 

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

 

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

 

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

 

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

 

provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

 

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

 

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

 

2. 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 the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange 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 Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chesterbrook, Commonwealth of Pennsylvania, on January 22, 2021.

 

  TREVENA, INC.
     
  By:  /s/ Barry Shin
    Barry Shin
    Chief Financial Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints CARRIE L. BOURDOW and BARRY SHIN, and each or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

 

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.

 

Signature   Title   Date
/s/ Carrie L. Bourdow   President, Chief Executive Officer and   January 22, 2021
Carrie L. Bourdow   Director (Principal Executive Officer)    
/s/ Barry Shin   Chief Financial Officer   January 22, 2021
Barry Shin   (Principal Financial and Accounting Officer)    
/s/ Leon O. Moulder, Jr.   Chairman of the Board of Directors   January 22, 2021
Leon O. Moulder, Jr.        
/s/ Scott Braunstein, M.D.   Director   January 22, 2021
Scott Braunstein, M.D.        
/s/ Michael R. Dougherty   Director   January 22, 2021
Michael R. Dougherty        
/s/ Maxine Gowen, Ph.D.   Director   January 22, 2021
Maxine Gowen, Ph.D.        
/s/ Julie H. McHugh   Director   January 22, 2021
Julie H. McHugh        
/s/ Jake R. Nunn   Director   January 22, 2021
Jake R. Nunn        
/s/ Anne M. Phillips, M.D.   Director   January 22, 2021
Anne M. Phillips, M.D.        
/s/ Barbara Yanni   Director   January 22, 2021
Barbara Yanni        

 

 

 

January 22, 2021                            Exhibit 5.1

 

Troutman Pepper Hamilton Sanders LLP

3000 Two Logan Square, Eighteenth and Arch Streets

Philadelphia, PA 19103-2799

 

troutman.com

 

 

Trevena, Inc.

955 Chesterbook Blvd., Suite 110

Chesterbook, Pennsylvania 19087

 

RE:            Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to Trevena, Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”), 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 6,399,997 shares of common stock, par value $0.001 per share, of the Company (the “Shares”), issuable by the Company from time to time pursuant to the Company’s 2013 Equity Incentive Plan, as amended (the “Plan”).

 

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 Registration Statement 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 Plan, 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.

 

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.

 

 

 

 

January 22, 2021
Page 2

 

  

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 against in the circumstances contemplated by the Plan, assuming in each case that the individual issuances, grants or awards under the 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 applicable 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 Registration Statement. We also consent to your filing copies of this opinion as an exhibit to the Registration Statement 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.

 

Very truly yours,
   
  /s/ Troutman Pepper Hamilton Sanders LLP
  Troutman Pepper Hamilton Sanders LLP

 

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2013 Equity Incentive Plan of Trevena, Inc. of our reports dated March 12, 2020, with respect to the financial statements of Trevena, Inc. and the effectiveness of internal control over financial reporting of Trevena, Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2019, filed with the Securities and Exchange Commission.

 

  /s/ Ernst & Young LLP
   
Philadelphia, Pennsylvania  
January 22, 2021