As filed with the Securities and Exchange Commission on December 1, 2023
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TREVENA, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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26-1469215
(I.R.S. Employer
Identification No.)
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955 Chesterbrook Boulevard, Suite 110,
Chesterbrook, PA 19087
(610) 354-8840
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Barry Shin
Chief Financial Officer
Trevena, Inc.
955 Chesterbrook Boulevard, Suite 110
Chesterbrook, PA 19087
(610) 354-8840
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With a copy 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
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Smaller reporting company
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting offers to buy these securities in any jurisdiction where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 1, 2023
PROSPECTUS
$200,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
From time to time, we may offer up to $200,000,000 of any combination of the securities described in this prospectus in one or more offerings. We may also offer securities as may be issuable upon conversion, redemption, repurchase, exchange or exercise of any securities registered hereunder, including any applicable anti-dilution provisions.
This prospectus provides a general description of the securities we may offer. Each time we offer securities, we will provide specific terms of the securities offered in a supplement to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may also add, update or change information contained in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference, before you invest in any of the securities being offered.
This prospectus may not be used to consummate a sale of any securities unless accompanied by a prospectus supplement.
Our common stock is traded on The Nasdaq Capital Market (“Nasdaq”) under the symbol “TRVN.” On November 30, 2023, the last reported sale price of our common stock was $0.58 per share. The applicable prospectus supplement will contain information, where applicable, as to any other listing on Nasdaq or any securities market or other exchange of the securities, if any, covered by the prospectus supplement.
As of November 30, 2023, the aggregate market value of our outstanding common stock held by non-affiliates, or public float, was approximately $8.7 million, based on 15,174,447 shares of outstanding common stock as of November 30, 2023, of which 98,467 shares were held by affiliates, and a price of $0.58 per share, which was the price at which our common stock was last sold on Nasdaq on such date. We have not sold more than one-third of our public float pursuant to General Instruction I.B.6 of Form S-3 during the prior 12-calendar-month period that ends on and includes the date of this prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered on this registration statement in a public primary offering with a value exceeding more than one-third of our public float in any 12-month period so long as our public float remains below $75,000,000 (the “Baby Shelf Limitation”).
We will sell these securities directly to investors, through agents designated from time to time or to or through underwriters or dealers, on a continuous or delayed basis, subject to the Baby Shelf Limitation. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus. If any agents or underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such agents or underwriters and any applicable fees, commissions, discounts or over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus as described on page 7 of this prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is , 2023.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration process. Under this shelf registration process, we may sell any combination of the securities described in this prospectus in one or more offerings up to a total aggregate offering price of $200,000,000, subject to the Baby Shelf Limitation. This prospectus provides you with a general description of the securities we may offer.
Each time we sell securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus or in any documents that we have incorporated by reference into this prospectus. You should read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as described under the heading “Incorporation of Certain Information by Reference,” before investing in any of the securities offered.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Neither we, nor any agent, underwriter or dealer has authorized any person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus, any applicable prospectus supplement or any related free writing prospectus prepared by or on behalf of us or to which we have referred you. This prospectus, any applicable supplement to this prospectus or any related free writing prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus, any applicable supplement to this prospectus or any related free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate on any date subsequent to the date set forth on the front of the document or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus, any applicable prospectus supplement or any related free writing prospectus is delivered, or securities are sold, on a later date.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where You Can Find More Information.”
SUMMARY
This summary highlights selected information from this prospectus and does not contain all of the information that you need to consider in making your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement and any related free writing prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
Unless the context requires otherwise, references in this prospectus to “Trevena,” “company,” “we,” “us” and “our” refer to Trevena, Inc.
Company Overview
We are a biopharmaceutical company focused on the development and commercialization of novel medicines for patients with central nervous system, or CNS, disorders.
Our product, OLINVYK® (oliceridine) injection, or OLINVYK, was approved by the United States Food and Drug Administration, or FDA, in August 2020. We initiated commercial launch of OLINVYK in the first quarter of 2021. OLINVYK is an opioid agonist for use in adults for the management of acute pain severe enough to require an intravenous opioid analgesic and for whom alternative treatments are inadequate. OLINVYK is the first new chemical entity, or NCE, in this intravenous, or IV drug class in decades and it offers a differentiated profile that addresses significant unmet needs in the acute pain management landscape. OLINVYK delivers IV opioid efficacy with a rapid 1-3 minute median onset of action. In addition, OLINVYK requires no dosage adjustments in patients with renal impairment, a large patient population with significant medical complications. The U.S. Drug Enforcement Administration, or DEA, classified oliceridine as a Schedule II controlled substances.
In June 2023, we announced new topline OLINVYK data from our electronic medical records, or EMR, based study, ARTEMIS. The study reviewed OLINVYK-treated patients in the VOLITION study (a 203-patient, real world, open-label, multi-site study led by clinical outcomes research experts from Cleveland Clinic and Wake Forest Baptist Health Medical Center) with comparable surgical patients, or matched patients, treated with other IV opioids, at the same institutions and during the study period. OLINVYK-treated patients (n=201) had a $8,756 (19%) reduction in average cost per admission (p<0.0001) and 1.4-day (20%) reduction in average overall hospital length of stay (p<0.0001) compared to matched patients (n=982) treated with other IV opioids. Based on the data we have to date, there was not a statistically significant difference in the average duration of time in the post-anesthesia care unit between OLINVYK-treated and matched patients. In October 2023, we announced completion of the initial analysis of OLINVYK continuous respiratory monitoring data from the VOLITION study.
Using our proprietary product platform, we also have identified and are developing the following product candidates:
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TRV045: TRV045 is our novel sphingosine-1-phosphate, or S1P, receptor modulator that may offer a new, non-opioid approach to managing chronic pain, as well as for treating epilepsy and seizure disorders. TRV045 has also demonstrated an anti-inflammatory effect in nonclinical studies that may have broad potential application in CNS disorders, autoimmune disease and inflammatory disease. TRV045 targets the S1P subtype 1 receptor and nonclinical data suggests that TRV045 effectively reverses neuropathic pain and reduces seizure risk without the immune-suppressing activity, or lymphopenia, observed with currently approved therapeutics targeting S1P receptors.
In September 2023, we announced preliminary topline data from two proof-of-concept studies for TRV045. The Target Engagement proof-of-concept study was a randomized, double-blind, placebo-controlled, single dose four-way cross-over study (n=25 subjects). Each subject received three different single doses of TRV045 (50mg, 150mg and 300mg) and placebo on four separate visits
across the study duration. In this study, TRV045 demonstrated a statistically significant, dose-dependent analgesic effect in a capsaicin-induced model of neuropathic pain. In the second proof-of-concept study using transcranial magnetic stimulation, or TMS, to evaluate TRV045 for epilepsy and seizure disorders, TRV045 demonstrated statistically significant changes in the power spectral density in several EEG bands associated with alertness and higher order cognitive function. The TMS proof-of-concept study was a randomized, double-blind, placebo-controlled, multiple dose, two-way cross-over study (n=25 subjects). Each subject received one of two treatment sequences in random order: TRV045 at a dose of 250mg, followed by placebo; or placebo followed by 250mg of TRV045. Each treatment sequence was given once daily for four consecutive days.
In October 2023, we announced favorable topline safety and tolerability data from these two proof-of-concept studies, with no reported drug-related adverse events, and no reported serious adverse events. In addition, there was no reported drug-related lymphopenia, bradycardia or change in blood pressure. The most common adverse events reported were headaches, somnolence, dizziness and fatigue. Both studies were conducted at a site outside of the United States and were not under the Investigational New Drug Application, or IND, for TRV045.
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TRV734: We also have identified and have completed the initial Phase 1 studies for TRV734, an NCE targeting the same novel mechanism of action at the mu opioid receptor, or MOR, as OLINVYK. TRV734 was designed to be orally available, and its mechanism of action suggests it may offer valuable benefits for two distinct areas of important unmet medical need: acute and chronic pain, and maintenance-assisted therapy for patients with opioid use disorder, or OUD. We are collaborating with the National Institute on Drug Abuse, or NIDA, to further evaluate TRV734 for the management of OUD, and NIDA initiated a proof-of-concept study for this indication in December 2019. In June 2021, we announced that the study, which had been paused due to the global COVID-19 pandemic, had resumed recruiting patients. We intend to continue to focus our efforts for TRV734 on securing a development and commercialization partner for this asset.
Effective as of 5:01 p.m. ET on November 9, 2022 (the “Effective Time”), we filed a Certificate of Amendment to our Certificate of Incorporation with the Secretary of State of the State of Delaware to effect a 1-for-25 reverse stock of our common stock (the “Reverse Stock Split”), and our common stock began trading on a split-adjusted basis on The Nasdaq Capital Market (“Nasdaq”) when the market opened on November 10, 2022. As a result of the Reverse Stock Split, each 25 shares of our common stock immediately prior to the Effective Time were combined into one validly issued, fully paid and non-assessable share of our common stock. No fractional shares were issued in connection with the Reverse Stock Split, and cash paid to stockholders for potential fractional shares was insignificant. All of the shares and per share amounts discussed in this prospectus have been adjusted to reflect the effect of the Reverse Stock Split.
On September 1, 2023, the Company received a letter (the “Notice”) from the Listing Qualifications Department (the “Staff”) of Nasdaq indicating that, for the last 30 consecutive business days, the bid price for the Company’s common stock had closed below the minimum $1.00 per share required for continued inclusion on Nasdaq under Nasdaq Listing Rule 5550(a)(2) (the “Bid Price Requirement”). In accordance with Nasdaq Marketplace Rule 5810(c)(3)(A), the Company has been provided a period of 180 calendar days, or until February 28, 2024, to regain compliance with the Bid Price Requirement. To regain compliance with the minimum bid price requirement, the closing bid price of the Company’s common stock must be at least $1.00 per share for a minimum of ten consecutive business days during this 180-day period. If, by February 28, 2024, the Company cannot demonstrate compliance with the Bid Price Requirement, it may be eligible for additional time. To qualify for additional time, the Company would be required to meet the continued listing requirement for market value of publicly held shares and all other initial listing standards for Nasdaq, with the exception of the Bid Price Requirement, and would need to provide written notice of its intention to cure the deficiency during the second compliance period by effecting a reverse stock split, if and as necessary. If the Company meets these requirements, the Company would have an additional 180 calendar days to comply in order for the Company’s common stock to remain listed on Nasdaq. If the Company is not eligible for the second compliance period, then the Staff will provide notice that the Company’s securities will be subject to delisting. At such time, the Company may appeal the delisting determination to a Nasdaq Hearings Panel (“Panel”). The Company would remain listed pending the Panel’s decision. There can be no assurance that, if the Company does appeal a subsequent delisting determination by the Staff to the Panel, that such appeal would be successful.
The Company is monitoring the closing bid price of the Company’s common stock and considering its available options if the closing bid price of the Company’s common stock remains below $1.00 per share. There can be no assurance that the Company will be able to regain compliance with the Bid Price Requirement, even if it maintains compliance with the other listing requirements.
Corporate Information
We were incorporated under the laws of the State of Delaware in November 2007. Our principal executive office is located at 955 Chesterbrook Blvd., Suite 110, Chesterbrook, Pennsylvania 19087. Our telephone number is (610) 354-8840. Our website address is www.trevena.com. The information contained on our website is not incorporated by reference into this prospectus, and you should not consider any information contained on, or that can be accessed through, our website as part of this prospectus or in deciding whether to purchase our securities.
“Trevena,” “OLINVYK,” the Trevena logo and other trademarks or service marks of Trevena, Inc. appearing in this prospectus are the property of Trevena, Inc. This prospectus contains additional trade names, trademarks and service marks of others, which are the property of their respective owner.
The Securities We May Offer
We may offer shares of our common stock and preferred stock, various series of debt securities and warrants to purchase any of such securities, up to a total aggregate offering price of $200,000,000 from time to time in one or more offerings under this prospectus, together with any applicable prospectus supplement and any related free writing prospectus, at prices and on terms to be determined by market conditions at the time of the relevant offering, and subject to the Baby Shelf Limitation. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
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designation or classification;
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aggregate principal amount or aggregate offering price;
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maturity, if applicable;
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original issue discount, if any;
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rates and times of payment of interest or dividends, if any;
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redemption, conversion, exchange or sinking fund terms, if any;
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conversion or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion or exchange prices or rates and in the securities or other property receivable upon conversion or exchange;
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ranking, if applicable;
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restrictive covenants, if any;
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voting or other rights, if any; and
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important U.S. federal income tax considerations.
The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement of which this prospectus is a part.
This prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
We may sell the securities directly to investors or through underwriters, dealers or agents. We, and our underwriters or agents, reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities through underwriters or agents, we will include in the applicable prospectus supplement:
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the names of those underwriters or agents;
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applicable fees, discounts and commissions to be paid to them;
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details regarding over-allotment options, if any; and
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the estimated net proceeds to us.
Common Stock. We may issue shares of our common stock from time to time. Holders of our common stock are entitled to one vote per share for the election of directors and on all other matters that require stockholder approval. Subject to any preferential rights of any then outstanding preferred stock, in the event of our liquidation, dissolution or winding up, holders of our common stock are entitled to share ratably in the assets remaining after payment of liabilities and the liquidation preferences of any then outstanding preferred stock. Our common stock does not carry any preemptive rights enabling a holder to subscribe for, or receive shares of, any class of our common stock or any other securities convertible into shares of any class of our common stock, or any redemption rights.
Preferred Stock. We may issue shares of our preferred stock from time to time, in one or more series. Under our certificate of incorporation, our board of directors has the authority, without further action by stockholders, to designate up to 5,000,000 shares of preferred stock in one or more series and to fix the rights, preferences, privileges, qualifications and restrictions granted to or imposed upon the preferred stock, including dividend rights, conversion rights, voting rights, rights and terms of redemption, liquidation preference and sinking fund terms, any or all of which may be greater than the rights of the common stock. To date, none of the 5,000,000 authorized shares of preferred stock have been designated by our board of directors. Convertible preferred stock will be convertible into our common stock or exchangeable for our other securities. Conversion may be mandatory or at the option of the holders of our preferred stock and would be at prescribed conversion rates.
Our board of directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each series that we sell under this prospectus and applicable prospectus supplements in the certificate of designation relating to that series. We will incorporate by reference into the registration statement of which this prospectus is a part the form of any certificate of designation that describes the terms of the series of preferred stock we are offering before the issuance of the related series of preferred stock. We urge you to read the prospectus supplements (and any related free writing prospectus that we may authorize to be provided to you) related to the series of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable series of preferred stock.
Debt Securities. We may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. The senior debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing the debt, to all of our senior indebtedness. Convertible debt securities will be convertible into our common stock or preferred stock. Conversion may be mandatory or at the holder’s option and would be at prescribed conversion rates.
The debt securities will be issued under one or more documents called indentures, which are contracts between us and a national banking association or other eligible party, as trustee. In this prospectus, we have summarized certain general features of the debt securities. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of debt securities being offered, as well as the complete indentures that contain the terms of the debt securities. A form of indenture has been filed as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the Securities and Exchange Commission (“SEC”).
Warrants. We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities. In this prospectus, we have summarized certain general features of the warrants. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the particular series of warrants being offered, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants. Forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants being offered have been filed as exhibits to the registration statement of which this prospectus is a part, and supplemental warrant agreements and forms of warrant certificates will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
We will evidence each series of warrants by warrant certificates that we will issue. Warrants may be issued under an applicable warrant agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the particular series of warrants being offered.
Listing
If any securities are to be listed or quoted on a securities exchange or quotation system, the applicable prospectus supplement or any related free writing prospectus will so indicate. Our common stock is listed on Nasdaq and trades under the symbol “TRVN”.
RISK FACTORS
Investing in our securities involves a high degree of risk. You should carefully review the risks and uncertainties described under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in our Annual Report on Form 10-K for the year ended December 31, 2022, as filed with the SEC on March 30, 2023 and our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023 and September 30, 2023, as filed with the SEC on May 15, 2023, August 14, 2023 and November 14, 2023, respectively, as updated by our annual, quarterly and other reports and documents that are incorporated by reference into this prospectus, before deciding whether to purchase any of the securities being registered pursuant to the registration statement of which this prospectus is a part. Each of the risk factors could adversely affect our business, operating results, financial condition and cash flow, as well as adversely affect the value of an investment in our securities, and the occurrence of any of these risks might cause you to lose all or part of your investment. These risks and uncertainties are not the only risks and uncertainties we face. Additional risks not presently known to us or that we currently believe are immaterial may also significantly impair our business operations. Please refer to the sections entitled “Special Note Regarding Forward-Looking Statements,” “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, each prospectus supplement and the information incorporated by reference in this prospectus and each prospectus supplement contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange Act of 1934, as amended, or the Exchange Act, that involve a number of risks and uncertainties. Although our forward-looking statements reflect the good faith judgment of our management, these statements can only be based on facts and factors currently known by us. Consequently, these forward-looking statements are inherently subject to risks and uncertainties, and actual results and outcomes may differ materially from results and outcomes discussed in the forward-looking statements.
Forward-looking statements can be identified by the use of forward-looking words such as “believes,” “expects,” “hopes,” “may,” “will,” “plan,” “intends,” “estimates,” “could,” “should,” “would,” “continue,” “seeks,” “pro forma,” or “anticipates,” or other similar words (including their use in the negative), or by discussions of future matters such as the development of new products, technology enhancements, possible collaborations and other statements that are not historical. These statements include but are not limited to statements under the captions “Business,” “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and in other sections incorporated by reference from our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, as applicable, as well as our other filings with the SEC. You should be aware that the occurrence of any of the events discussed under the heading “Risk Factors” in any applicable prospectus supplement and any documents incorporated by reference herein or therein could substantially harm our business, operating results and financial condition and that if any of these events occurs, it could adversely affect the value of an investment in our securities.
The cautionary statements made in this prospectus are intended to be applicable to all related forward-looking statements wherever they may appear in this prospectus or in any prospectus supplement or any documents incorporated by reference herein or therein. We urge you not to place undue reliance on these forward-looking statements, which speak only as of the date they are made. Except as required by law, we assume no obligation to update our forward-looking statements, even if new information becomes available in the future.
USE OF PROCEEDS
We will retain broad discretion over the use of the net proceeds from the sale of the securities offered hereby. Except as described in any prospectus supplement or any related free writing prospectus that we may authorize to be provided to you, we currently intend to use the net proceeds from the sale of the securities offered hereby for general corporate purposes, which may include expenses incurred in connection with the commercialization of our approved products (including OLINVYK), advancing our pipeline assets, research and development, capital expenditures, working capital and general and administrative expenses. We may also use a portion of the net proceeds to acquire or invest in businesses, products and technologies that are complementary to our own, although we have no current plans, commitments or agreements with respect to any acquisitions as of the date of this prospectus. We will set forth in the applicable prospectus supplement or free writing prospectus our intended use for the net proceeds received from the sale of any securities sold pursuant to the prospectus supplement or free writing prospectus. Pending these uses, we intend to invest the net proceeds primarily in a money market mutual fund with a large financial institution.
DESCRIPTION OF CAPITAL STOCK
As of the date of this prospectus, our amended and restated certificate of incorporation authorizes us to issue 200,000,000 shares of common stock, par value $0.001 per share, and 5,000,000 shares of preferred stock, par value $0.001 per share. As of November 30, 2023, 15,174,447 shares of common stock were outstanding and no shares of preferred stock were outstanding.
The following summary describes the material terms of our capital stock. The description of capital stock is qualified by reference to our amended and restated certificate of incorporation and our amended and restated bylaws, which are incorporated by reference as exhibits into the registration statement of which this prospectus is a part.
Common Stock
Voting. Our common stock is entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders, including the election of directors, and does not have cumulative voting rights. Accordingly, the holders of a majority of the shares of our common stock entitled to vote in any election of directors can elect all of the directors standing for election.
Dividends. Subject to preferences that may be applicable to any then-outstanding preferred stock, the holders of common stock are entitled to receive dividends, if any, as may be declared from time to time by our Board of Directors out of legally available funds.
Liquidation. In the event of our liquidation, dissolution or winding-up, holders of our common stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities, subject to the satisfaction of any liquidation preference granted to the holders of any outstanding shares of preferred stock.
Rights and Preferences. Holders of our common stock have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions applicable to our common stock. The rights, preferences and privileges of the holders of our common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of our preferred stock that we may designate and issue in the future.
Fully Paid and Nonassessable. All of our outstanding shares of common stock are fully paid and nonassessable.
Preferred Stock
Under our amended and restated certificate of incorporation, as may be amended from time-to-time, our board of directors has the authority, without further action by stockholders, to designate up to 5,000,000 shares of preferred stock in one or more series and to fix or alter, from time to time, the designations, powers and rights of each series of preferred stock and the qualifications, limitations or restrictions of any series of preferred stock, including dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices, and the liquidation preference of any wholly unissued series of preferred stock, any or all of which may be greater than the rights of the common stock, and to establish the number of shares constituting any such series. As of the date of this filing, none of the 5,000,000 authorized shares of preferred stock are issued and outstanding.
Our board of directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each series that we sell under this prospectus and any applicable prospectus supplements in the certificate of designation relating to each such series. We will incorporate by reference as an exhibit to the registration statement of which this prospectus is a part or as an exhibit to one or more Current Reports on Form 8-K, the form of any certificate of designation that describes the terms of the series of preferred stock we are offering before the issuance of the related series of preferred stock.
If we issue and sell shares of preferred stock pursuant to this prospectus, together with any applicable prospectus supplement or free writing prospectus, the shares will be fully paid and nonassessable.
The laws of the state of Delaware, the state of our incorporation, provide that the holders of preferred stock will have the right to vote separately as a class on any proposal involving fundamental changes in the rights of holders of such preferred stock. This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.
The issuance of preferred stock could adversely affect the voting power, conversion or other rights of holders of common stock and reduce the likelihood that common stockholders will receive dividend payments and payments upon liquidation. Preferred stock could be issued quickly with terms designed to delay, deter or prevent a change in control of our company or make removal of management more difficult. Additionally, the issuance of preferred stock may have the effect of decreasing the market price of our common stock.
Warrants
In connection with entering into a credit facility in September 2014, we issued to the lenders and the placement agent warrants to purchase an aggregate of 307 shares of our common stock, of which warrants to purchase 229 shares remain unexercised as of the date of this filing. These warrants are exercisable immediately and have an exercise price of $146.5250 per share. These warrants may be exercised on a cashless basis and will terminate on the earlier of September 19, 2024 or the closing of a merger or consolidation transaction in which we are not the surviving entity. In connection with subsequent draws of additional funds under this credit facility, we issued to the lenders and the placement agent additional warrants to purchase an aggregate of 1,397 and 2,488 shares of our common stock in December 2015 and March 2017, respectively. The December 2015 warrants have substantially the same terms as those noted above, and have an exercise price of $265.4750 per share and an expiration date of December 23, 2025. The March 2017 warrants have substantially the same terms as those noted above, and have an exercise price of $90.3750 per share and an expiration date of March 31, 2027.
In connection with a registered direct offering, we issued to certain designees of the placement agent warrants to purchase an aggregate of 20,000 shares of our common stock, of which warrants to purchase 6,900 shares remain unexercised as of the date of this filing. These warrants are exercisable immediately and have an exercise price of $31.25 per share. These warrants may be exercised on a cashless basis and will terminate on the earlier of January 29, 2024 or the closing of a merger or consolidation transaction in which we are not the surviving entity.
In connection with the first tranche borrowings under a royalty-based loan agreement with R-Bridge Investment Four Pte. Ltd (“R-Bridge”) in April 2022, the Company issued a warrant to R-Bridge to purchase 200,000 shares of the Company’s common stock, all of which remain unexercised as of the date of this filing. These warrants are exercisable immediately and have an exercise price of $20.50 per share. These warrants may be exercised on a cashless basis and will terminate on April 14, 2025.
In connection with a registered direct offering in July 2022, we issued a single institutional investor warrants to purchase an aggregate of 320,000 shares of our common stock, all of which remain unexercised as of the date of this filing. These warrants are exercisable immediately and have an exercise price of $6.575 per share. These warrants may be exercised on a cashless basis and will terminate on December 28, 2027.
In connection with a registered direct offering in November 2022, we issued a single institutional investor warrants pre-funded warrants to purchase an aggregate of 1,849,380 shares of our common stock, all of which have been exercised as of the date of this filing. The pre-funded warrants were immediately exercisable and their aggregate exercise price was pre-funded to the Company prior to the exercise date. Consequently, no additional consideration (other than the nominal exercise price of $0.001 per share) was required to effect the exercise of the pre-funded warrants. We also issued warrants to purchase an aggregate of 2,614,380 shares of common stock, all of which remain unexercised as of the date of this filing. The warrants are exercisable immediately and have an exercise price of $2.95 per share. The warrants may be exercised on a cashless basis and will terminate November 18, 2027.
Anti-Takeover Provisions
Section 203 of the Delaware General Corporation Law. We are subject to Section 203 of the Delaware General Corporation Law, which prohibits Delaware corporations from engaging in any business combination
with any interested stockholder for a period of three years after the date that such stockholder became an interested stockholder, with the following exceptions:
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before such date, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
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upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes of determining the voting stock outstanding, but not the outstanding voting stock owned by the interested stockholder, those shares owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
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on or after such date, the business combination is approved by the board of directors and authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of at least 662∕3% of the outstanding voting stock that is not owned by the interested stockholder.
In general, Section 203 defines a “business combination” to include the following:
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any merger or consolidation involving the corporation and the interested stockholder;
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any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;
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subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
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any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; or
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits by or through the corporation.
In general, Section 203 defines an “interested stockholder” as an entity or person who, together with the person’s affiliates and associates, beneficially owns, or within three years prior to the time of determination of interested stockholder status did own, 15% or more of the outstanding voting stock of the corporation.
The existence of this provision generally will have an anti-takeover effect for transactions not approved in advance by the board of directors, including discouraging attempts that might result in a premium over the market price for the shares of common stock held by stockholders.
Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws. Our amended and restated certificate of incorporation, or our restated certificate, provides for our board of directors to be divided into three classes with staggered three-year terms. Only one class of directors will be elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms. Because our stockholders do not have cumulative voting rights, stockholders holding a majority of the shares of common stock outstanding will be able to elect all of our directors. Our restated certificate and our amended and restated bylaws, or our restated bylaws, also provide that directors may be removed by the stockholders only for cause upon the vote of 662∕3% or more of our outstanding common stock. Furthermore, the authorized number of directors may be changed only by resolution of the board of directors, and vacancies and newly created directorships on the board of directors may, except as otherwise required by law or determined by the board, only be filled by a majority vote of the directors then serving on the board, even though less than a quorum.
Our restated certificate and restated bylaws also provide that all stockholder actions must be effected at a duly called meeting of stockholders and eliminate the right of stockholders to act by written consent without a meeting. Our restated bylaws also provide that only our chairman of the board, chief executive officer or the board of directors pursuant to a resolution adopted by a majority of the total number of authorized directors may call a special meeting of stockholders.
Our restated bylaws also provide that stockholders seeking to present proposals before a meeting of stockholders to nominate candidates for election as directors at a meeting of stockholders must provide timely advance notice in writing, and will specify requirements as to the form and content of a stockholder’s notice.
Our restated certificate and restated bylaws provide that the stockholders cannot amend many of the provisions of our restated certificate and restated bylaws described above except by the affirmative vote of 662∕3% or more of our outstanding common stock.
The combination of these provisions makes it more difficult for our existing stockholders to replace our board of directors as well as for another party to obtain control of us by replacing our board of directors. Since our board of directors has the power to retain and discharge our officers, these provisions could also make it more difficult for existing stockholders or another party to effect a change in management. In addition, the authorization of undesignated preferred stock makes it possible for our board of directors to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to effect a change of control of our company.
These provisions are intended to enhance the likelihood of continued stability in the composition of our board of directors and its policies and to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to reduce our vulnerability to hostile takeovers and to discourage certain tactics that may be used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers for our shares and may have the effect of delaying changes in our control or management. Consequently, these provisions may also inhibit fluctuations in the market price of our stock that could result from actual or rumored takeover attempts. We believe that the benefits of these provisions, including increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure our company, outweigh the disadvantages of discouraging takeover proposals, because negotiation of takeover proposals could result in an improvement of their terms.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Continental Stock Transfer & Trust Company. The transfer agent’s address is 1 State Street, 30th Floor, New York, New York 10004. The transfer agent for any series of preferred stock that we may offer under this prospectus will be named and described in the prospectus supplement for that series.
Listing on the Nasdaq Capital Market
Our common stock is listed on Nasdaq under the symbol “TRVN.”
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.
We will issue the debt securities under the indenture that we will enter into with the trustee named in the indenture. The indenture will be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed the form of indenture as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
The following summary of material provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indenture that contains the terms of the debt securities.
General
The indenture does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions designed to give holders of any debt securities protection against changes in our operations, financial condition or transactions involving us.
We may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued with OID will be described in more detail in any applicable prospectus supplement.
We will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
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the title of the series of debt securities;
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any limit upon the aggregate principal amount that may be issued;
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the maturity date or dates;
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the form of the debt securities of the series;
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the applicability of any guarantees;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination;
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if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another security or the method by which any such portion shall be determined;
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the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions;
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the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable;
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the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof;
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any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for our obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt securities of that series;
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whether the debt securities of the series shall be issued in whole or in part in the form of a global security or securities; the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other individual securities; and the depositary for such global security or securities;
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if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange;
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if other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall be payable upon declaration of acceleration of the maturity thereof;
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additions to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation, merger or sale covenant;
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additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable;
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additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
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additions to or changes in the provisions relating to satisfaction and discharge of the indenture;
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additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture;
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the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
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whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions upon which the election may be made;
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the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any, and principal amounts of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes;
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any restrictions on transfer, sale or assignment of the debt securities of the series; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations under the indenture or the debt securities, as appropriate.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the indenture with respect to any series of debt securities that we may issue:
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if we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by us in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest for this purpose;
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if we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal or premium, if any;
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if we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur.
If an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued interest, if any, of such series of debt securities due and payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its consequences, except defaults or
events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding.
A holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies only if:
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the holder has given written notice to the trustee of a continuing event of default with respect to that series;
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request;
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such holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred by the trustee in compliance with the request; and
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the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer.
These limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may change an indenture without the consent of any holders with respect to specific matters:
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to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series;
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to comply with the provisions described above under “Description of Debt Securities — Consolidation, Merger or Sale”;
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred upon us in the indenture;
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to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture;
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to make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect;
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to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above under “Description of Debt Securities — General” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities;
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to evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or
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to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act.
In addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of any debt securities of any series;
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any series of any debt securities; or
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver.
Discharge
The indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations to:
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provide for payment;
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register the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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pay principal of and premium and interest on any debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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recover excess money held by the trustee;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
In order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company, or DTC, or another depositary named by us and identified in the applicable prospectus supplement with respect to that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms relating to any book-entry securities will be set forth in the applicable prospectus supplement.
At the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or
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register the transfer of or exchange of any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
Information Concerning the Trustee
The trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt securities, and any claim, controversy or dispute arising under or related to the indenture or the debt securities, will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
DESCRIPTION OF WARRANTS
The following description, together with the additional information we may include in any applicable prospectus supplements and free writing prospectuses, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may consist of warrants to purchase common stock, preferred stock or debt securities and may be issued in one or more series. Warrants may be issued independently or together with common stock, preferred stock or debt securities offered by any prospectus supplement, and may be attached to or separate from those securities. While the terms we have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants that we may offer in more detail in the applicable prospectus supplement and any applicable free writing prospectus. The terms of any warrants offered under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant agreement, if any, including a form of warrant certificate, that describes the terms of the particular series of warrants we are offering. The following summaries of material provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable to the particular series of warrants that we may offer under this prospectus. We urge you to read the applicable prospectus supplements related to the particular series of warrants that we may offer under this prospectus, as well as any related free writing prospectuses, and the complete warrant agreements and warrant certificates that contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement the terms relating to a series of warrants being offered, including:
•
the title of such securities;
•
the offering price or prices and aggregate number of warrants offered;
•
the currency or currencies for which the warrants may be purchased;
•
if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
•
if applicable, the date on and after which the warrants and the related securities will be separately transferable;
•
if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time;
•
in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at which, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
•
in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which, and the currency in which, these shares may be purchased upon such exercise;
•
the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
•
the terms of any rights to redeem or call the warrants;
•
the terms of any rights to force the exercise of the warrants;
•
any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
•
the dates on which the right to exercise the warrants will commence and expire;
•
the manner in which the warrant agreements and warrants may be modified;
•
a discussion of any material or special U.S. federal income tax consequences of holding or exercising the warrants;
•
the terms of the securities issuable upon exercise of the warrants; and
•
any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
•
in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
•
in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant agent in connection with the exercise of the warrant.
Upon receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Governing Law
Unless we provide otherwise in the applicable prospectus supplement, the warrants and warrant agreements, and any claim, controversy or dispute arising under or related to the warrants or warrant agreements, will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee or depositary maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered in the name of the depositary or its participants. Consequently, for global securities, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not legal holders, of the securities.
Street Name Holders
A global security may be terminated in certain situations as described under “— Special Situations When a Global Security Will Be Terminated,” or issue securities that are not issued in global form. In these cases, investors may choose to hold their securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any such trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the legal holder, we have no further responsibility for the payment or notice even if that legal holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we
may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event, we would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal holders contact the indirect holders is up to the legal holders.
Special Considerations for Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are represented by one or more global securities or in street name, you should check with your own institution to find out:
•
how it handles securities payments and notices;
•
whether it imposes fees or charges;
•
how it would handle a request for the holders’ consent, if ever required;
•
whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future;
•
how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and
•
if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.
Global Securities
A global security is a security that represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, DTC will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under “— Special Situations When a Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and legal holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a legal holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations for Global Securities
As an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If securities are issued only as global securities, an investor should be aware of the following:
•
an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below;
•
an investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above;
•
an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form;
•
an investor may not be able to pledge his or her interest in the global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;
•
the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in the global security;
•
we and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in the global security, nor will we or any applicable trustee supervise the depositary in any way;
•
the depositary may, and we understand that DTC will, require that those who purchase and sell interests in the global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and
•
financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in the global security, may also have their own policies affecting payments, notices and other matters relating to the securities.
There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security Will Be Terminated
In a few special situations described below, a global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own names, so that they will be direct holders. We have described the rights of holders and street name investors above.
A global security will terminate when the following special situations occur:
•
if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days;
•
if we notify any applicable trustee that we wish to terminate that global security; or
•
if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.
The applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and neither we nor any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN OF DISTRIBUTION
We may sell the securities from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods. We may sell the securities to or through underwriters or dealers, through agents, or directly to one or more purchasers. We may distribute securities from time to time in one or more transactions:
•
at a fixed price or prices, which may be changed;
•
at market prices prevailing at the time of sale;
•
at prices related to such prevailing market prices; or
•
at negotiated prices.
We may also sell equity securities covered by this registration statement in an “at-the-market offering” as defined in Rule 415 under the Securities Act. Such offering may be made into an existing trading market for such securities in transactions at other than a fixed price, either:
•
on or through the facilities of The Nasdaq Capital Market or any other securities exchange or quotation or trading service on which such securities may be listed, quoted or traded at the time of sale; and/or
•
to or through a market maker other than The Nasdaq Capital Market or such other securities exchanges or quotation or trading services.
Such “at-the-market” offerings, if any, may be conducted by underwriters acting as principal or agent.
A prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of the securities, including, to the extent applicable:
•
the name or names of any underwriters, dealers or agents, if any;
•
the purchase price of the securities and the proceeds we will receive from the sale;
•
any over-allotment options under which underwriters may purchase additional securities from us;
•
any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
•
any public offering price;
•
any discounts or concessions allowed or reallowed or paid to dealers; and
•
any securities exchange or market on which the securities may be listed.
Only underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities, and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.
We may provide agents and underwriters with indemnification against civil liabilities related to this offering, including liabilities under the Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
All securities we offer, other than common stock, will be new issues of securities with no established trading market. Any underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity of the trading markets for any securities.
Any underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids. Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time. These transactions may be effected on any exchange or over-the-counter market or otherwise.
Any underwriters who are qualified market makers on Nasdaq may engage in passive market making transactions in the securities on Nasdaq in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the securities. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
LEGAL MATTERS
The validity of the securities being offered hereby will be passed upon for us by Troutman Pepper Hamilton Sanders LLP. If legal matters in connection with offerings made pursuant to this prospectus are passed upon by counsel for underwriters, dealers or agents, if any, such counsel will be named in the prospectus supplement relating to such offerings.
EXPERTS
The consolidated financial statements of Trevena, Inc. at December 31, 2022 and 2021, and for each of the two years in the period ended December 31, 2022, incorporated by reference in this prospectus and registration statement have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon (which contains an explanatory paragraph describing conditions that raise substantial doubt about the Company’s ability to continue as a going concern as described in Note 1 to the consolidated financial statements) incorporated by reference in this prospectus and registration statement. Our financial statements are incorporated by reference in reliance on Ernst & Young LLP’s report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement we filed with the SEC and does not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For further information with respect to us and the securities we are offering under this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement. Neither we nor any agent, underwriter or dealer has authorized any person to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front page of this prospectus, regardless of the time of delivery of this prospectus or any sale of the securities offered by this prospectus.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy statements and other information regarding issuers that file electronically with the SEC, including Trevena. The address of the SEC’s website is www.sec.gov. We also maintain a website at www.trevena.com. Through our website, we make available, free of charge, annual, quarterly and current reports, proxy statements and other information as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. The information contained in or accessible through our website is not incorporated into and does not constitute a part of this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The SEC file number for the documents incorporated by reference in this prospectus is 001-36193. The documents incorporated by reference into this prospectus contain important information that you should read about us.
The following documents are incorporated by reference into this document:
•
•
•
our Quarterly Reports on Form 10-Q for the quarterly period ended on March 31, 2023, filed with the SEC on May 15, 2023, for the quarterly period ended on June 30, 2023, filed with the SEC on August 14, 2023 and for the quarterly period ended on September 30, 2023, filed with the SEC on November 14, 2023;
•
our Current Reports on Form 8-K (other than the information furnished under Items 2.02 and 7.01 of Form 8-K rather than filed) filed with the SEC on January 9, 2023 (other than the information furnished under Item 7.01 of Form 8-K), March 13, 2023, March 30, 2023, April 21, 2023, May 8, 2023, May 9, 2023 (other than the information furnished under Item 2.02 of Form 8-K), May 30, 2023; June 20, 2023, as amended on July 6, 2023, June 26, 2023, July 20, 2023, September 1, 2023, September 6, 2023 (other than the information furnished under Item 7.01 of Form 8-K), September 18, 2023, October 2, 2023 (other than the information furnished under Item 7.01 of Form 8-K) and November 9, 2023; and
•
We also incorporate by reference into this prospectus all documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial filing of the registration statement of which this prospectus forms a part and prior to effectiveness of the registration statement, or (ii) after the date of this prospectus but prior to the termination of the offering. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy statements.
We will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request, a copy of any or all of the documents that are incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits which are specifically incorporated by reference into such documents. You should direct any requests for documents by writing us at 955 Chesterbrook Blvd., Suite 110, Chesterbrook, Pennsylvania 19087, Attn: Corporate Secretary or telephoning us at (610) 354-8840.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference into this document will be deemed to be modified or superseded for purposes of the document to the extent that a statement contained in this document or any other subsequently filed document that is deemed to be incorporated by reference into this document modifies or supersedes the statement.
$200,000,000
Trevena, Inc.
Common Stock
Preferred Stock
Debt Securities
Warrants
PROSPECTUS
December 1, 2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated costs and expenses, other than underwriting discounts and commissions, payable by us in connection with the offering of the securities being registered. All the amounts shown are estimates, except for the SEC registration fee.
| |
SEC registration fee
|
|
|
|
$ |
21,820(1) |
|
|
| |
Accounting fees and expenses
|
|
|
|
|
*
|
|
|
| |
Legal fees and expenses
|
|
|
|
|
*
|
|
|
| |
Transfer agent fees and expenses
|
|
|
|
|
*
|
|
|
| |
Trustee fees and expenses
|
|
|
|
|
*
|
|
|
| |
Printing and miscellaneous expenses
|
|
|
|
|
*
|
|
|
| |
Total
|
|
|
|
$ |
*
|
|
|
(1)
Reflects the registration fee previously paid in connection with unsold securities pursuant to Rule 415(a)(6).
*
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. The applicable prospectus supplement will set forth the aggregate amount of expenses payable in respect of any offering of securities.
Item 15. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law, or DGCL, we have broad powers to indemnify our directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act of 1933, as amended, or the Securities Act. Section 145 of the DGCL generally provides that a Delaware corporation has the power to indemnify its present and former directors, officers, employees and agents against expenses incurred by them in connection with any suit to which they are or are threatened to be made, a party by reason of their serving in such positions so long as they acted in good faith and in a manner they reasonably believed to be in or not opposed to, the best interests of the corporation and, with respect to any criminal action, they had no reasonable cause to believe their conduct was unlawful.
Our amended and restated certificate of incorporation and amended and restated bylaws include provisions that (i) eliminate the personal liability of our directors for monetary damages resulting from breaches of their fiduciary duty to the fullest extent permitted under applicable law, (ii) require us to indemnify our directors and executive officers to the fullest extent permitted by the DGCL or other applicable law and (iii) provide us with the power, in our discretion, to indemnify our other officers, employees and other agents as set forth in the DGCL or other applicable law. We believe that these provisions of our amended and restated certificate of incorporation and amended and restated bylaws are necessary to attract and retain qualified persons as directors and officers. These provisions do not eliminate our directors’ or officers’ duty of care, and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under the DGCL. In addition, each director will continue to be subject to liability pursuant to Section 174 of the DGCL, for breach of such director’s duty of loyalty to us, for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for acts or omissions that such director believes to be contrary to our best interests or the best interests of our stockholders, for any transaction from which such director derived an improper personal benefit, for acts or omissions involving a reckless disregard for such director’s duty to us or to our stockholders when such director was aware or should have been aware of a risk of serious injury to us or to our stockholders, for acts or omission that constitute an unexcused pattern of inattention that amounts to an abdication of such director’s duty to us or to our stockholders, for improper transactions between such director and us and for improper loans to directors and officers. These provisions also do not affect a director’s responsibilities under any other law, such as the federal securities law or state or federal environmental laws.
As permitted by Delaware law, we have entered into indemnification agreements with each of our current directors and officers pursuant to the foregoing provisions. We have an insurance policy covering our officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act or otherwise.
The underwriting agreement, if any, entered into with respect to an offering of securities registered hereunder will provide for indemnification by any underwriters of any offering, our directors and officers who sign the registration statement and our controlling persons for some liabilities, including liabilities arising under the Securities Act.
Item 16. Exhibits
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Exhibit
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Description of Exhibit
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1.1*
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Form of Underwriting Agreement.
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3.1
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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 SEC on February 5, 2014).
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3.2
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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 SEC on May 21, 2018).
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3.3
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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 SEC on November 9, 2022).
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3.4
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Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to Registrant’s Current Report on Form 8-K, filed with the SEC on August 1, 2022).
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3.5
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Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock (incorporated by reference to Exhibit 3.2 to Registrant’s Current Report on Form 8-K, filed with the SEC on August 1, 2022).
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3.6
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3.7
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Amendment No. 1 to Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.3 to Registrant’s Current Report on Form 8-K, filed with the SEC on August 1, 2022).
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4.1
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Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7.
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4.2
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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 SEC on October 9, 2013).
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4.3
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4.4*
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Form of Note.
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4.5*
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Form of Common Stock Warrant Agreement and Warrant Certificate.
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4.6*
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Form of Preferred Stock Warrant Agreement and Warrant Certificate.
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4.7*
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Form of Debt Securities Warrant Agreement and Warrant Certificate.
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4.8*
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Form of Specimen Preferred Stock Certificate and Certificate of Designations of Preferred Stock.
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5.1
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23.1
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23.2
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24.1
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25.1*‡
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Statement of Eligibility of Trustee under the Indenture.
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107
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*
To be filed by amendment or by a report filed under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference, if applicable.
‡
To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939 under the electronic form type “305B2” and in accordance with the requirements of Item 601(b)(25) of Regulation S-K.
Item 17. 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;
(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 SEC 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; and
(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)(1)(i), (a)(1)(ii) and (a)(1)(iii) above 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 SEC by registrant pursuant to Section 13 and Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, 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.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the 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 of 1933 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 SEC such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.
(d)
The undersigned registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2)
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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.
(e)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the SEC under section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 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 the 1st day of December, 2023.
TREVENA, INC.
By:
/s/ Carrie L. Bourdow
Carrie L. Bourdow
President, Chief Executive Officer & Chair of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carrie L. Bourdow and Barry Shin, and each or any one of them, as his or her true and lawful agent, proxy and attorney-in-fact, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission any and all amendments (including post-effective amendments) to this registration statement together with all schedules and exhibits thereto and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents as may be necessary or appropriate in connection therewith, (iii) act on and file any supplement to any prospectus included in this registration statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and (iv) take any and all actions, which may be necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, hereby approving, ratifying and confirming all that such agent, proxy and attorney-in-fact or any of his or her substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Carrie L. Bourdow
Carrie L. Bourdow
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President, Chief Executive Officer & Chair of the Board
(Principal Executive Officer)
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December 1, 2023
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/s/ Barry Shin
Barry Shin
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Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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December 1, 2023
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/s/ Scott Braunstein
Scott Braunstein, M.D.
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Lead Independent Director
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December 1, 2023
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/s/ Mark Corrigan
Mark Corrigan, M.D.
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Director
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December 1, 2023
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/s/ Marvin H. Johnson, Jr.
Marvin H. Johnson, Jr.
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Director
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December 1, 2023
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Signature
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Title
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Date
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/s/ Leon O. Moulder, Jr.
Leon O. Moulder, Jr.
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Director
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December 1, 2023
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/s/ Jake R. Nunn
Jake R. Nunn
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Director
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December 1, 2023
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/s/ Anne M. Phillips
Anne M. Phillips, M.D.
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Director
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December 1, 2023
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/s/ Barbara Yanni
Barbara Yanni
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Director
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December 1, 2023
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EXHIBIT 4.3
TREVENA, INC.,
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated as of ___________, 20___
Debt Securities
Table
of Contents
| |
Page |
| |
|
| ARTICLE 1
DEFINITIONS |
1 |
| |
Section 1.01 |
Definitions of Terms |
1 |
| |
|
|
|
| ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
| |
Section 2.01 |
Designation and Terms of Securities |
4 |
| |
Section 2.02 |
Form of Securities and Trustee’s
Certificate |
6 |
| |
Section 2.03 |
Denominations: Provisions for Payment |
6 |
| |
Section 2.04 |
Execution and Authentications |
7 |
| |
Section 2.05 |
Registration of Transfer and Exchange |
8 |
| |
Section 2.06 |
Temporary Securities |
9 |
| |
Section 2.07 |
Mutilated, Destroyed, Lost or Stolen Securities |
9 |
| |
Section 2.08 |
Cancellation |
10 |
| |
Section 2.09 |
Benefits of Indenture |
10 |
| |
Section 2.10 |
Authenticating Agent |
10 |
| |
Section 2.11 |
Global Securities |
10 |
| |
Section 2.12 |
CUSIP Numbers |
11 |
| |
|
|
|
| ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
11 |
| |
Section 3.01 |
Redemption |
11 |
| |
Section 3.02 |
Notice of Redemption |
12 |
| |
Section 3.03 |
Payment Upon Redemption |
12 |
| |
Section 3.04 |
Sinking Fund |
13 |
| |
Section 3.05 |
Satisfaction of Sinking Fund Payments with Securities |
13 |
| |
Section 3.06 |
Redemption of Securities for Sinking Fund |
13 |
| |
|
|
|
| ARTICLE 4
COVENANTS |
13 |
| |
Section 4.01 |
Payment of Principal, Premium and Interest |
13 |
| |
Section 4.02 |
Maintenance of Office or Agency |
14 |
| |
Section 4.03 |
Paying Agents |
14 |
| |
Section 4.04 |
Appointment to Fill Vacancy in Office of Trustee |
15 |
| |
|
|
|
| ARTICLE 5
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
15 |
| |
Section 5.01 |
Company to Furnish Trustee Names and Addresses
of Securityholders |
15 |
| |
Section 5.02 |
Preservation Of Information; Communications
With Securityholders |
15 |
| |
Section 5.03 |
Reports by the Company |
15 |
| |
Section 5.04 |
Reports by the Trustee |
16 |
| |
|
|
|
| ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
16 |
| |
Section 6.01 |
Events of Default |
16 |
| |
Section 6.02 |
Collection of Indebtedness and Suits for Enforcement
by Trustee |
17 |
| |
Section 6.03 |
Application of Moneys Collected |
18 |
| |
Section 6.04 |
Limitation on Suits |
19 |
| |
Section 6.05 |
Rights and Remedies Cumulative; Delay or Omission
Not Waiver |
19 |
| |
Section 6.06 |
Control by Securityholders |
19 |
| |
Section 6.07 |
Undertaking to Pay Costs |
20 |
| |
|
|
|
| ARTICLE 7
CONCERNING THE TRUSTEE |
20 |
| |
Section 7.01 |
Certain Duties and Responsibilities of Trustee |
20 |
| |
Section 7.02 |
Certain Rights of Trustee |
21 |
| |
Section 7.03 |
Trustee Not Responsible for Recitals or Issuance
or Securities |
23 |
| |
Section 7.04 |
May Hold Securities |
23 |
| |
Section 7.05 |
Moneys Held in Trust |
23 |
| |
Section 7.06 |
Compensation and Reimbursement |
23 |
Table
of Contents
(continued)
| |
|
|
Page |
| |
|
|
|
|
Section 7.07 |
Reliance on Officer’s
Certificate |
24 |
| |
Section 7.08 |
Disqualification; Conflicting Interests |
24 |
| |
Section 7.09 |
Corporate Trustee Required; Eligibility |
24 |
| |
Section 7.10 |
Resignation and Removal; Appointment of Successor |
24 |
| |
Section 7.11 |
Acceptance of Appointment By Successor |
25 |
| |
Section 7.12 |
Merger, Conversion, Consolidation or Succession to Business |
26 |
| |
Section 7.13 |
Preferential Collection of Claims Against the Company |
26 |
| |
Section 7.14 |
Notice of Default |
26 |
| |
|
|
|
| ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
27 |
| |
Section 8.01 |
Evidence of Action by Securityholders |
27 |
| |
Section 8.02 |
Proof of Execution by Securityholders |
27 |
| |
Section 8.03 |
Who May be Deemed Owners |
27 |
| |
Section 8.04 |
Certain Securities Owned by Company Disregarded |
28 |
| |
Section 8.05 |
Actions Binding on Future Securityholders |
28 |
| |
|
|
|
| ARTICLE 9 SUPPLEMENTAL INDENTURES |
28 |
| |
Section 9.01 |
Supplemental Indentures Without the Consent of Securityholders |
28 |
| |
Section 9.02 |
Supplemental Indentures With Consent of Securityholders |
29 |
| |
Section 9.03 |
Effect of Supplemental Indentures |
29 |
| |
Section 9.04 |
Securities Affected by Supplemental Indentures |
29 |
| |
Section 9.05 |
Execution of Supplemental Indentures |
30 |
| |
|
|
|
| ARTICLE 10 SUCCESSOR ENTITY |
30 |
| |
Section 10.01 |
Company May Consolidate, Etc. |
30 |
| |
Section 10.02 |
Successor Entity Substituted |
30 |
| |
|
|
|
| ARTICLE 11 SATISFACTION AND DISCHARGE |
31 |
| |
Section 11.01 |
Satisfaction and Discharge of Indenture |
31 |
| |
Section 11.02 |
Discharge of Obligations |
31 |
| |
Section 11.03 |
Deposited Moneys to be Held in Trust |
31 |
| |
Section 11.04 |
Payment of Moneys Held by Paying Agents |
32 |
| |
Section 11.05 |
Repayment to Company |
32 |
| |
|
|
|
| ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
32 |
| |
Section 12.01 |
No Recourse |
32 |
| |
|
|
|
| ARTICLE 13 MISCELLANEOUS PROVISIONS |
32 |
| |
Section 13.01 |
Effect on Successors and Assigns |
32 |
| |
Section 13.02 |
Actions by Successor |
32 |
| |
Section 13.03 |
Surrender of Company Powers |
33 |
| |
Section 13.04 |
Notices |
33 |
| |
Section 13.05 |
Governing Law; Jury Trial Waiver |
33 |
| |
Section 13.06 |
Treatment of Securities as Debt |
33 |
| |
Section 13.07 |
Certificates and Opinions as to Conditions Precedent |
33 |
| |
Section 13.08 |
Payments on Business Days |
34 |
| |
Section 13.09 |
Conflict with Trust Indenture Act |
34 |
| |
Section 13.10 |
Counterparts |
34 |
| |
Section 13.11 |
Separability |
34 |
| |
Section 13.12 |
Compliance Certificates |
34 |
| |
Section 13.13 |
U.S.A Patriot Act |
34 |
| |
Section 13.14 |
Force Majeure |
34 |
| |
Section 13.15 |
Table of Contents; Headings |
35 |
INDENTURE
INDENTURE, dated
as of , 20 , among Trevena, Inc., a Delaware corporation (the “Company”), and [TRUSTEE], as trustee (the
“Trustee”):
WHEREAS, for
its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the
issuance of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount
to be issued from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to
be authenticated by the certificate of the Trustee;
WHEREAS, to
provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture; and
WHEREAS, all
things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE,
in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed
as follows for the equal and ratable benefit of the holders of Securities:
ARTICLE 1
DEFINITIONS
| Section 1.01 | Definitions of Terms. |
The terms defined in
this Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section and shall include the plural as well as the singular. All other terms used in this Indenture
that are defined in the Trust Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities
Act of 1933, as amended (except as herein or any indenture supplemental hereto otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in
force at the date of the execution of this instrument.
“Authenticating
Agent” means the Trustee or an authenticating agent with respect to all or any of the series of Securities appointed
by the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board
of Directors” means the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized
committee of such Board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors (or duly authorized committee thereof) and to be in full force and effect on the date
of such certification.
“Business
Day” means any day other than a day on which federal or state banking institutions in the Borough of Manhattan, the
City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive order
or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
“Company”
means Trevena, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject to the
provisions of Article Ten, shall also include its successors and assigns.
“Company
Order” means a written order signed in the name of the Company by an Officer.
“Corporate
Trust Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall
be principally administered, which office at the date hereof is located at .
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted
Interest” has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under
the Exchange Act, or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to
either Section 2.01 or 2.11.
“Event
of Default” means, with respect to Securities of a particular series, any event specified in Section 6.01, continued
for the period of time, if any, therein designated.
“Exchange
Act” means the United States Securities and Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the Commission thereunder.
The term “given”,
“mailed”, “notify” or “sent” with respect to any
notice to be given to a Securityholder pursuant to this Indenture, shall mean notice (x) given to the Depositary (or its designee)
pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted
practices or procedures at the Depositary (in the case of a Global Security) or (y) mailed to such Securityholder by first
class mail, postage prepaid, at its address as it appears on the Security Register (in the case of a definitive Security). Notice
so “given” shall be deemed to include any notice to be “mailed” or “delivered,” as applicable,
under this Indenture.
“Global
Security” means a Security issued to evidence all or a part of any series of Securities which is executed by the
Company and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all
in accordance with the Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct obligations of the United States of America for the payment
of which its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that, in either case, are not callable or redeemable at the option of the issuer
thereof at any time prior to the stated maturity of the Securities, and shall also include a depositary receipt issued by a bank
or trust company as custodian with respect to any such Governmental Obligation or a specific payment of principal of or interest
on any such Governmental Obligation held by such custodian for the account of the holder of such depositary receipt; provided,
however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian in respect of the Governmental Obligation or the specific
payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof and shall include the terms of particular series of Securities
established as contemplated by Section 2.01.
“Interest
Payment Date”, when used with respect to any installment of interest on a Security of a particular series, means
the date specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series
as the fixed date on which an installment of interest with respect to Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial
officer, a chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer
or any assistant treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s
Certificate” means a certificate signed by any Officer. Each such certificate shall include the statements provided
for in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion
of Counsel” means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee
of or counsel for the Company, that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular
time, all Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that
have previously been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent);
provided, however, that if such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as provided in Article Three, or provision satisfactory to the Trustee shall have
been made for giving such notice; and (c) Securities in lieu of or in substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust,
unincorporated organization, any other entity or organization, including a government or political subdivision or an agency or
instrumentality thereof.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered
under Section 2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost,
destroyed or stolen Security.
“Responsible
Officer” when used with respect to the Trustee means any officer within the Corporate Trust Office of the Trustee
(or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and in each case
who shall have direct responsibility for the administration of this Indenture.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
“Securities
Act” means the Securities Act of 1933, as amended.
“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the
Person or Persons in whose name or names a particular Security is registered on the Security Register kept for that purpose in
accordance with the terms of this Indenture.
“Security
Register” and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary”
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of
the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard
to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at
the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries
of such Person; or (iii) one or more Subsidiaries of such Person.
“Trustee”
means [TRUSTEE], and, subject to the provisions of Article Seven, shall also include its successors and assigns, and, if at
any time there is more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The
term “Trustee” as used with respect to a particular series of the Securities shall mean the trustee with respect to
that series.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended.
“U.S.A.
Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Pub. L. 107-56, as amended and signed into law October 26, 2001.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
| Section 2.01 | Designation and Terms of Securities. |
(a) The
aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized
by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of
Securities of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s
Certificate, or established in one or more indentures supplemental hereto:
(1) the
title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any
limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of that series);
(3) the
maturity date or dates on which the principal of the Securities of the series is payable;
(4) the
form of the Securities of the series including the form of the certificate of authentication for such series;
(5) the
applicability of any guarantees;
(6) whether
or not the Securities will be secured or unsecured, and the terms of any secured debt;
(7) whether
the Securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any
subordination;
(8) if
the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued is a price
other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of
the maturity thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another
security or the method by which any such portion shall be determined;
(9) the
interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates;
(10) the
Company’s right, if any, to defer the payment of interest and the maximum length of any such deferral period;
(11) if
applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, the Company
may at its option, redeem the series of Securities pursuant to any optional or provisional redemption provisions and the terms
of those redemption provisions;
(12) the
date or dates, if any, on which, and the price or prices at which the Company is obligated, pursuant to any mandatory sinking fund
or analogous fund provisions or otherwise, to redeem, or at the Securityholder’s option to purchase, the series of Securities
and the currency or currency unit in which the Securities are payable;
(13) the
denominations in which the Securities of the series shall be issuable, if other than denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof;
(14) any
and all terms, if applicable, relating to any auction or remarketing of the Securities of that series and any security for the
obligations of the Company with respect to such Securities and any other terms which may be advisable in connection with the marketing
of Securities of that series;
(15) whether
the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities;
and the Depositary for such Global Security or Securities;
(16) if
applicable, the provisions relating to conversion or exchange of any Securities of the series and the terms and conditions upon
which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how
it will be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option)
conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or
exchange, which may, without limitation, include the payment of cash as well as the delivery of securities;
(17) if
other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(18) additions
to or changes in the covenants applicable to the series of Securities being issued, including, among others, the consolidation,
merger or sale covenant;
(19) additions
to or changes in the Events of Default with respect to the Securities and any change in the right of the Trustee or the Securityholders
to declare the principal, premium, if any, and interest, if any, with respect to such Securities to be due and payable;
(20) additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
(21) additions
to or changes in the provisions relating to satisfaction and discharge of this Indenture;
(22) additions
to or changes in the provisions relating to the modification of this Indenture both with and without the consent of Securityholders
of Securities issued under this Indenture;
(23) the
currency of payment of Securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
(24) whether
interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option and the terms
and conditions upon which the election may be made;
(25) the
terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any, and
principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal
tax purposes;
(26) any
restrictions on transfer, sale or assignment of the Securities of the series; and
(27) any
other specific terms, preferences, rights or limitations of, or restrictions on, the Securities, any other additions or changes
in the provisions of this Indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
All Securities of any
one series shall be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or
in any indentures supplemental hereto.
If any of the terms
of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of
such action shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officer’s Certificate of the Company setting forth the terms of the series.
Securities of any particular
series may be issued at various times, with different dates on which the principal or any installment of principal is payable,
with different rates of interest, if any, or different methods by which rates of interest may be determined, with different dates
on which such interest may be payable and with different redemption dates.
| Section 2.02 | Form of Securities and Trustee’s Certificate. |
The Securities of any
series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of the tenor
and purport as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an
Officer’s Certificate, and they may have such letters, numbers or other marks of identification or designation and such legends
or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which Securities of that series may be listed, or to
conform to usage.
| Section 2.03 | Denominations: Provisions for Payment. |
The Securities shall
be issuable as registered Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof,
subject to Section 2.01(a)(13). The Securities of a particular series shall bear interest payable on the dates and at the
rate specified with respect to that series. Subject to Section 2.01(a)(23), the principal of and the interest on the Securities
of any series, as well as any premium thereon in case of redemption or repurchase thereof prior to maturity, and any cash amount
due upon conversion or exchange thereof, shall be payable in the coin or currency of the United States of America that at the time
is legal tender for public and private debt, at the office or agency of the Company maintained for that purpose. Each Security
shall be dated the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year composed
of twelve 30-day months.
The interest installment
on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that
series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In the event that any Security of a particular series or
portion thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest
Payment Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of
such Security as provided in Section 3.03.
Any interest on any
Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same
series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant
regular record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election,
as provided in clause (1) or clause (2) below:
(1) The
Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered in the Security Register at the close of business on a special record date for the payment
of such Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more
than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the Company of such special record date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record
date therefor to be sent to each Securityholder not less than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor having been sent as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered in the
Security Register on such special record date.
(2) The
Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.
Unless otherwise set
forth in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant
to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to a series of
Securities and any Interest Payment Date for such series shall mean either the fifteenth day of the month immediately preceding
the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the first day of a month, or the first day of the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month,
whether or not such date is a Business Day.
Subject to the foregoing
provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried
by such other Security.
| Section 2.04 | Execution and Authentications. |
The Securities shall
be signed on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use
the facsimile signature of any Person who shall have been an Officer (at the time of execution), notwithstanding the fact that
at the time the Securities shall be authenticated and delivered or disposed of such Person shall have ceased to be such an officer
of the Company. The Securities may contain such notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not
be valid until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature
shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and delivery of such Securities, signed by an Officer, and the Trustee
in accordance with such written order shall authenticate and deliver such Securities.
Upon the Company’s
delivery of any such authentication order to the Trustee at any time after the initial issuance of Securities under this Indenture,
the Trustee shall be provided with, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall
be fully protected in relying upon, (1) an Opinion of Counsel or reliance letter and (2) an Officer’s Certificate
stating that all conditions precedent to the execution, authentication and delivery of such Securities are in conformity with the
provisions of this Indenture.
The Trustee shall not
be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s
own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable
to the Trustee.
| Section 2.05 | Registration of Transfer and Exchange. |
(a) Securities
of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose, for
other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities
so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver
in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers (herein referred
to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall
register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall
be open for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution or supplemental indenture (the “Security Registrar”).
Upon surrender for
transfer of any Security at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in the name of the transferee or transferees a new Security or Securities
of the same series as the Security presented for a like aggregate principal amount.
The Company initially
appoints the Trustee as the Security Registrar for each series of Securities.
All Securities presented
or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the
Company or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the
Security Registrar, duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c) Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series or repurchase, conversion or exchange of
less than the entire principal amount of a Security, but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and
Section 9.04 not involving any transfer.
(d) The
Company and the Security Registrar shall not be required (i) to issue, exchange or register the transfer of any Securities
during a period beginning at the opening of business 15 days before the day of the sending of a notice of redemption of less than
all the Outstanding Securities of the same series and ending at the close of business on the day of such sending, nor (ii) to
register the transfer of or exchange any Securities of any series or portions thereof called for redemption or surrendered for
repurchase, but not validly withdrawn, other than the unredeemed portion of any such Securities being redeemed in part or not surrendered
for repurchase, as the case may be. The provisions of this Section 2.05 are, with respect to any Global Security, subject
to Section 2.11 hereof.
The Trustee shall have
no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture
or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among
Depositary participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of,
this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
| Section 2.06 | Temporary Securities. |
Pending the preparation
of definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities
(printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the
form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be
executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities of such series. Without unnecessary delay the Company will execute and will furnish
definitive Securities of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange
therefor (without charge to the Securityholders), at the office or agency of the Company designated for the purpose, and the Trustee
shall authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate principal
amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive Securities
need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities of such
series shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered
hereunder.
| Section 2.07 | Mutilated, Destroyed, Lost or Stolen Securities. |
In case any temporary
or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence)
shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security
of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted
Security shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence
to their satisfaction of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee
may authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of
the Company. Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith.
In case any Security
that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing
a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security)
if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to
save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of
the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security
issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company whether
or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series
duly issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent
lawful) any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
| Section 2.08 | Cancellation. |
All Securities surrendered
for the purpose of payment, redemption, repurchase, exchange, registration of transfer or conversion shall, if surrendered to the
Company or any paying agent (or any other applicable agent), be delivered to the Trustee for cancellation, or, if surrendered to
the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required or permitted
by any of the provisions of this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver
to the Company canceled Securities held by the Trustee. In the absence of such request the Trustee may dispose of canceled Securities
in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise
acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
| Section 2.09 | Benefits of Indenture. |
Nothing in this Indenture
or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties hereto and the
holders of the Securities any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties
hereto and of the holders of the Securities.
| Section 2.10 | Authenticating Agent. |
So long as any of the
Securities of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which
the Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or partial redemption, repurchase or conversion thereof, and Securities
so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company
and shall be a corporation that has a combined capital and surplus, as most recently reported or determined by it, sufficient under
the laws of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business, and that
is otherwise authorized under such laws to conduct such business and is subject to supervision or examination by federal or state
authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign
immediately.
Any Authenticating
Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating
Agent, the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
| Section 2.11 | Global Securities. |
(a) If
the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver,
a Global Security that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee,
(iii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction (or if the Depositary
names the Trustee as its custodian, retained by the Trustee), and (iv) shall bear a legend substantially to the following
effect: “Except as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but
not in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner
provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such
series selected or approved by the Company or to a nominee of such successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default
has occurred and is continuing and the Company has received a request from the Depositary or from the Trustee, this Section 2.11
shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.04,
the Trustee will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange
for such Global Security. In addition, the Company may at any time determine that the Securities of any series shall no longer
be represented by a Global Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of
such series. In such event the Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an Officer’s
Certificate evidencing such determination by the Company, will authenticate and deliver the Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount
of the Global Security of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities
in definitive registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee.
Such Securities in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall
be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for
delivery to the Persons in whose names such Securities are so registered.
| Section 2.12 | CUSIP Numbers. |
The Company in issuing
the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Securityholders; provided that any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption
and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change
in the “CUSIP” numbers.
ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
The Company may redeem
the Securities of any series issued hereunder on and after the dates and in accordance with the terms established for such series
pursuant to Section 2.01 hereof.
| Section 3.02 | Notice of Redemption. |
(a) In
case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series
in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall,
or shall cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing
(or with regard to any Global Security held in book entry form, by electronic mail in accordance with the applicable procedures
of the Depositary), a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption
of that series to such Securityholders, unless a shorter period is specified in the Securities to be redeemed. Any notice that
is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder
receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption
in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officer’s Certificate evidencing compliance with any such restriction.
Each such notice of
redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any), specify the date fixed for redemption
and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of the redemption
price of such Securities to be redeemed will be made at the office or agency of the Company, upon presentation and surrender of
such Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice, that from and
after said date interest will cease to accrue and that the redemption is from a sinking fund, if such is the case. If less than
all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed in part
shall specify the particular Securities to be so redeemed.
In case any Security
is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount thereof
to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will be issued.
(b) If
less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and thereupon the Securities to be redeemed shall be selected, by
lot, on a pro rata basis, or in such other manner as the Company shall deem appropriate and fair in its discretion and that may
provide for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof)
of the principal amount of such Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter
promptly notify the Company in writing of the numbers of the Securities to be redeemed, in whole or in part. The Company may, if
and whenever it shall so elect, by delivery of instructions signed on its behalf by an Officer, instruct the Trustee or any paying
agent to call all or any part of the Securities of a particular series for redemption and to give notice of redemption in the manner
set forth in this Section, such notice to be in the name of the Company or its own name as the Trustee or such paying agent may
deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such paying agent, the Company shall
deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be, such Security
Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or such paying
agent to give any notice by mail that may be required under the provisions of this Section.
| Section 3.03 | Payment Upon Redemption. |
(a) If
the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to, but excluding, the date fixed for redemption and interest
on such Securities or portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company
shall default in the payment of such redemption price and accrued interest with respect to any such Security or portion thereof.
On presentation and surrender of such Securities on or after the date fixed for redemption at the place of payment specified in
the notice, said Securities shall be paid and redeemed at the applicable redemption price for such series, together with interest
accrued thereon to, but excluding, the date fixed for redemption (but if the date fixed for redemption is an Interest Payment Date,
the interest installment payable on such date shall be payable to the registered holder at the close of business on the applicable
record date pursuant to Section 2.03).
(b) Upon
presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the Securityholder thereof, at the expense
of the Company, a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion
of the Security so presented.
| Section 3.04 | Sinking Fund. |
The provisions of Sections
3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified
as contemplated by Section 2.01 for Securities of such series.
The minimum amount
of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking
fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
| Section 3.05 | Satisfaction of Sinking Fund Payments with Securities. |
The Company (i) may
deliver Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed either
at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the
terms of such series, provided that such Securities have not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the redemption price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
| Section 3.06 | Redemption of Securities for Sinking Fund. |
Not less than 45 days
prior to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee),
the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s
Certificate, deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment
date the Securities to be redeemed upon such sinking fund payment date shall be selected in the manner specified in Section 3.02
and the Company shall cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Section 3.03.
ARTICLE 4
COVENANTS
| Section 4.01 | Payment of Principal, Premium and Interest. |
The Company will duly
and punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at
the time and place and in the manner provided herein and established with respect to such Securities. Payments of principal on
the Securities may be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn
on and mailed to the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S.
dollar wire transfer to, a U.S. dollar account if such Securityholder shall have furnished wire instructions to the Trustee no
later than 15 days prior to the relevant payment date. Payments of interest on the Securities may be made at the time provided
herein and established with respect to such Securities by U.S. dollar check mailed to the address of the Securityholder entitled
thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account if such Securityholder
shall have furnished wire instructions in writing to the Security Registrar and the Trustee no later than 15 days prior to the
relevant payment date.
| Section 4.02 | Maintenance of Office or Agency. |
So long as any series
of the Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at
such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that
series may be presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration
of transfer and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be given or served, such designation to continue with respect to such office or agency until the Company
shall, by written notice signed by any officer authorized to sign an Officer’s Certificate and delivered to the Trustee,
designate some other office or agency for such purposes or any of them. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, notices and demands. The Company initially appoints the Corporate Trust Office of the Trustee as
its paying agent with respect to the Securities.
| Section 4.03 | Paying Agents. |
(a) If
the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section:
(1) that
it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2) that
it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment
of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that
it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4) that
it will perform all other duties of paying agent as set forth in this Indenture.
(b) If
the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date
of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming
due on Securities of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action.
Whenever the Company shall have one or more paying agents for any series of Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Securities of that series, deposit with the paying agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly notify
the Trustee of this action or failure so to act.
(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held
in trust by the Company or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon
which such sums were held by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the
Trustee, the Company or such paying agent shall be released from all further liability with respect to such money.
Section 4.04 Appointment
to Fill Vacancy in Office of Trustee.
The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee,
so that there shall at all times be a Trustee hereunder.
ARTICLE 5
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01 Company
to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish
or cause to be furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03)
a list, in such form as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities
as of such regular record date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any
time that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at
such other times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that,
in either case, no such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section 5.02 Preservation
Of Information; Communications With Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and
addresses of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their
rights under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy
its obligations under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of
the Trust Indenture Act.
Section 5.03 Reports
by the Company.
(a) The
Company will at all times comply with Section 314(a) of the Trust Indenture Act. The Company covenants and agrees to
provide (which delivery may be via electronic mail) to the Trustee within 30 days, after the Company files the same with the Commission,
copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe) that the Company is required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not
be required to deliver to the Trustee any correspondence filed with the Commission or any materials for which the Company has sought
and received confidential treatment by the Commission; and provided further, that so long as such filings by the Company are available
on the Commission’s Electronic Data Gathering, Analysis and Retrieval System (EDGAR), or any successor system, such filings
shall be deemed to have been filed with the Trustee for purposes hereof without any further action required by the Company. For
the avoidance of doubt, a failure by the Company to file annual reports, information and other reports with the Commission within
the time period prescribed thereof by the Commission shall not be deemed a breach of this Section 5.03.
(b) Delivery
of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information
and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein,
or determinable from information contained therein including the Company’s compliance with any of their covenants thereunder
(as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine
any such reports, information or documents delivered to the Trustee or filed with the Commission via EDGAR to ensure compliance
with the provision of this Indenture or to ascertain the correctness or otherwise of the information or the statements contained
therein. The Trustee shall have no responsibility or duty whatsoever to ascertain or determine whether the above referenced filings
with the Commission on EDGAR (or any successor system) has occurred.
Section 5.04 Reports
by the Trustee.
(a) If
required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall
send to the Securityholders a brief report dated as of such May 1, which complies with Section 313(a) of the Trust
Indenture Act.
(b) The
Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c) A
copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company,
with each securities exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees
to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01 Events
of Default.
(a) Whenever
used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following
events that has occurred and is continuing:
(1) the
Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same
shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of
an interest payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute
a default in the payment of interest for this purpose;
(2) the
Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the
same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required
by any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity
of such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment
of principal or premium, if any;
(3) the
Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant
or agreement that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other
than such series) for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied
and stating that such notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee,
by registered or certified mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities
of that series at the time Outstanding;
(4) the
Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5) a
court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders
the liquidation of the Company, and the order or decree remains unstayed and in effect for 90 days.
(b) In
each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal
of all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid
interest on all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs,
the principal of and accrued and unpaid interest on all the Securities of that series shall automatically be immediately due and
payable without any declaration or other act on the part of the Trustee or the holders of the Securities.
(c) At
any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then
Outstanding hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if: (i) the Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon
all the Securities of that series and the principal of (and premium, if any, on) any and all Securities of that series that shall
have become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that
such payment is enforceable under applicable law, upon overdue installments of interest, at the rate per annum expressed in the
Securities of that series to the date of such payment or deposit) and the amount payable to the Trustee under Section 7.06,
and (ii) any and all Events of Default under the Indenture with respect to such series, other than the nonpayment of principal
on (and premium, if any, on) and accrued and unpaid interest on Securities of that series that shall not have become due by their
terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission
and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In
case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall
have been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the
Company and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies
and powers of the Company and the Trustee shall continue as though no such proceedings had been taken.
Section 6.02 Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a) The
Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities
of a series, or in any payment required by any sinking or analogous fund established with respect to that series as and when the
same shall have become due and payable, and such default shall have continued for a period of 90 days, or (ii) in case it
shall default in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall
have become due and payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise
then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that
series, the whole amount that then shall have been become due and payable on all such Securities for principal (and premium, if
any) or interest, or both, as the case may be, with interest upon the overdue principal (and premium, if any) and (to the extent
that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the rate per annum
expressed in the Securities of that series; and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If
the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums
so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment
or final decree against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed
to be payable in the manner provided by law or equity out of the property of the Company or other obligor upon the Securities of
that series, wherever situated.
(c) In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings
and take any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled
to file such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the
Trustee and of the holders of Securities of such series allowed for the entire amount due and payable by the Company under the
Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the Company
after such date, and to collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute
the same after the deduction of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee
in bankruptcy or reorganization is hereby authorized by each of the holders of Securities of such series to make such payments
to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to such Securityholders,
to pay to the Trustee any amount due it under Section 7.06.
(d) All
rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts
due under Section 7.06, be for the ratable benefit of the holders of the Securities of such series.
In case of an Event
of Default hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture
by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either
at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained
in the Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Nothing contained herein
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan
of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any Securityholder
thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.03 Application
of Moneys Collected.
Any moneys collected
by the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium,
if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST: To the payment
of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment
of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect
of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To
the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section 6.04 Limitation
on Suits.
No holder of any Security
of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such Securityholder previously shall have given to the Trustee written notice
of an Event of Default and of the continuance thereof with respect to the Securities of such series specifying such Event of Default,
as hereinbefore provided; (ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series
then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name
as Trustee hereunder; (iii) such Securityholder or Securityholders shall have offered to the Trustee indemnity satisfactory
to it against the costs, expenses and liabilities to be incurred in compliance with such request; (iv) the Trustee for 90
days after its receipt of such notice, request and offer of indemnity, shall have failed to institute any such action, suit or
proceeding and (v) during such 90 day period, the holders of a majority in principal amount of the Securities of that series
do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything
contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective
due dates expressed in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement
of any such payment on or after such respective dates or redemption date, shall not be impaired or affected without the consent
of such holder and by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder
of every Security of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities
of such series shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all holders of Securities of such series. For the protection and enforcement of the provisions
of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or
in equity.
Section 6.05 Rights
and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except
as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the
Trustee or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No
delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given
by this Article or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Securityholders.
Section 6.06 Control
by Securityholders.
The holders of a majority
in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04,
shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction shall
not be in conflict with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability.
Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject
to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly
prejudicial to the Securityholders not involved in the proceeding. The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding affected thereby, determined in accordance with Section 8.04, may on behalf
of the holders of all of the Securities of such series waive any past default in the performance of any of the covenants contained
herein or established pursuant to Section 2.01 with respect to such series and its consequences, except a default in the payment
of the principal of, or premium, if any, or interest on, any of the Securities of that series as and when the same shall become
due by the terms of such Securities otherwise than by acceleration (unless such default has been cured and a sum sufficient to
pay all matured installments of interest and principal and any premium has been deposited with the Trustee (in accordance with
Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 6.07 Undertaking
to Pay Costs.
All parties to this
Indenture agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding more than 10% in aggregate principal
amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security of such series, on or after the respective due dates
expressed in such Security or established pursuant to this Indenture.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Certain
Duties and Responsibilities of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect
to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied
covenants shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of
a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series
such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior
to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have occurred:
(A) the
duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(B) in
the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this Indenture;
(ii) the
Trustee shall not be liable to any Securityholder or to any other Person for any error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Indenture with respect to the Securities of that series;
(iv) none
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured to it;
(v) The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder;
(vi) The
permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(vii) No
Trustee shall have any duty or responsibility for any act or omission of any other Trustee appointed with respect to a series of
Securities hereunder.
Section 7.02 Certain
Rights of Trustee.
Except as otherwise
provided in Section 7.01:
(a) The
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or parties;
(b) Any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by any authorized Officer of the Company (unless other evidence in respect thereof
is specifically prescribed herein);
(c) The
Trustee may consult with counsel and the opinion or written advice of such counsel or, if requested, any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith
and in reliance thereon;
(d) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee security or indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities that
may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence
of an Event of Default with respect to a series of the Securities (that has not been cured or waived), to exercise with respect
to Securities of that series such of the rights and powers vested in it by this Indenture, and to use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his or her own affairs;
(e) The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(f) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents or inquire
as to the performance by the Company of one of its covenants under this Indenture, unless requested in writing so to do by the
holders of not less than a majority in principal amount of the Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require security
or indemnity reasonably acceptable to the Trustee against such costs, expenses or liabilities as a condition to so proceeding.
The reasonable expense of every such examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand;
(g) The
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) In
no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee
shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances;
(i) In
no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;
(j) The
Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods; provided, however, that such instructions or directions shall be signed
by an authorized representative of the party providing such instructions or directions. If the party elects to give the Trustee
e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act
upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not
be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance
with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The
party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit
instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions,
and the risk or interception and misuse by third parties. The Trustee may request that the Company deliver an Officer’s Certificate
setting forth the names of individuals and/or titles of officers authorized at such time to furnish the Trustee with Officer’s
Certificates, Company Orders and any other matters or directions pursuant to this Indenture;
(k) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and under the Securities, and each
agent, custodian or other person employed to act under this Indenture; and
(l) The
Trustee shall not be deemed to have knowledge of any Default or Event of Default (other than an Event of Default constituting the
failure to pay the interest on, or the principal of, the Securities if the Trustee also serves as the paying agent for such Securities)
until the Trustee shall have received written notification in the manner set forth in this Indenture or a Responsible Officer of
the Trustee shall have obtained actual knowledge.
Section 7.03 Trustee
Not Responsible for Recitals or Issuance or Securities.
(a) The
recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee shall not be responsible for any statement in any registration statement, prospectus,
or any other document in connection with the sale of Securities. The Trustee shall not be responsible for any rating on the Securities
or any action or omission of any rating agency.
(b) The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than
the Trustee.
Section 7.04 May Hold
Securities.
The Trustee or any
paying agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with
the same rights it would have if it were not Trustee, paying agent or Security Registrar.
Section 7.05 Moneys
Held in Trust.
Subject to the provisions
of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Company
to pay thereon.
Section 7.06 Compensation
and Reimbursement.
(a) The
Company shall pay to the Trustee for each of its capacities hereunder from time to time compensation for its services as the Company
and the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and
counsel.
(b) The
Company shall indemnify each of the Trustee in each of its capacities hereunder against any loss, liability or expense (including
the cost of defending itself and including the reasonable compensation and expenses of the Trustee’s agents and counsel)
incurred by it except as set forth in Section 7.06(c) in the exercise or performance of its powers, rights or duties
under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and
the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without
its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees,
shareholders and agents of the Trustee.
(c) The
Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director,
employee, shareholder or agent of the Trustee through negligence or bad faith.
(d) To
ensure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all funds
or property held or collected by the Trustee, except that held in trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(4) or
(5), the expenses (including the reasonable fees and expenses of its counsel) and the compensation for services in connection therewith
are to constitute expenses of administration under any bankruptcy law. The provisions of this Section 7.06 shall survive the
termination of this Indenture and the resignation or removal of the Trustee.
Section 7.07 Reliance
on Officer’s Certificate.
Except as otherwise
provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably
necessary or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad
faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered
to the Trustee and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant
to the Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith
thereof.
Section 7.08 Disqualification;
Conflicting Interests.
If the Trustee has
or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act,
the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
Section 7.09 Corporate
Trustee Required; Eligibility.
There shall at all
times be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and doing
business under the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision
or examination by federal, state, territorial, or District of Columbia authority.
If such corporation
or other Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation or other Person
shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company
may not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve
as Trustee. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in Section 7.10.
Section 7.10 Resignation
and Removal; Appointment of Successor.
(a) The
Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and the Securityholders of such series. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the
sending of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(b) In
case at any time any one of the following shall occur:
(i) the
Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(iii) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any
such case, the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed
and one copy to the successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at
least six months may, on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such
series with the consent of the Company.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as
provided in Section 7.11.
(e) Any
successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series
or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance
of Appointment By Successor.
(a) In
case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor trustee, such retiring Trustee shall, upon payment of any amounts due to it pursuant to
the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor trustee all property and money
held by such retiring Trustee hereunder.
(b) In
case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall
add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible
for any act or failure to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring
Trustee shall with respect to the Securities of that or those series to which the appointment of such successor trustee relates
have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested
in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which
the appointment of such successor trustee relates.
(c) Upon
request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No
successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified
and eligible under this Article.
(e) Upon
acceptance of appointment by a successor trustee as provided in this Section, the Company shall send notice of the succession of
such trustee hereunder to the Securityholders. If the Company fails to send such notice within ten days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such notice to be sent at the expense of the Company.
Section 7.12 Merger,
Conversion, Consolidation or Succession to Business.
Any corporation into
which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, including the administration of the trust created by this Indenture, shall be the successor
of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible
under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.
Section 7.13 Preferential
Collection of Claims Against the Company.
The Trustee shall comply
with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture
Act to the extent included therein.
Section 7.14 Notice
of Default.
If any Event of Default
occurs and is continuing and if such Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall send
to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of
the Event of Default within the earlier of 90 days after it occurs and 30 days after it is known to a Responsible Officer of the
Trustee or written notice of it is received by the Trustee, unless such Event of Default has been cured; provided, however,
that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as the Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Securityholders.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence
of Action by Securityholders.
Whenever in this Indenture
it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular
series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking
of any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage
of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by
such holders of Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall
solicit from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such series
for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver
or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of
record at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of that series have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities
of that series shall be computed as of the record date; provided, however, that no such authorization, agreement or consent by
such Securityholders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
Section 8.02 Proof
of Execution by Securityholders.
Subject to the provisions
of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or
his or her agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following
manner:
(a) The
fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The
ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
The Trustee may require
such additional proof of any matter referred to in this Section as it shall deem necessary.
Section 8.03 Who
May be Deemed Owners.
Prior to the due presentment
for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and
treat the Person in whose name such Security shall be registered upon the books of the Security Registrar as the absolute owner
of such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium,
if any, and (subject to Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the
Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain
Securities Owned by Company Disregarded.
In determining whether
the holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent
or waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities
of that series or by any Person directly or indirectly controlling or controlled by or under common control with the Company or
any other obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction,
consent or waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities
so owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company
or any such other obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
Section 8.05 Actions
Binding on Future Securityholders.
At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of
the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in
connection with such action, any holder of a Security of that series that is shown by the evidence to be included in the Securities
the holders of which have consented to such action may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by
the holder of any Security shall be conclusive and binding upon such holder and upon all future holders and owners of such Security,
and of any Security issued in exchange therefor, on registration of transfer thereof or in place thereof, irrespective of whether
or not any notation in regard thereto is made upon such Security. Any action taken by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the holders of all the Securities of that series.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental
Indentures Without the Consent of Securityholders.
In addition to any
supplemental indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as
then in effect), without the consent of the Securityholders, for one or more of the following purposes:
(a) to
cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b) to
comply with Article Ten;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or any
series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all
series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for
the benefit of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon
the Company;
(e) to
add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f) to
make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g) to
provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section 2.01,
to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities,
or to add to the rights of the holders of any series of Securities;
(h) to
evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i) to
comply with any requirements of the Commission or any successor in connection with the qualification of this Indenture under the
Trust Indenture Act.
The Trustee is hereby
authorized to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements
and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders
of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental
Indentures With Consent of Securityholders.
With the consent (evidenced
as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of
each series affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner
not covered by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby,
(a) extend the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate
or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce
the aforesaid percentage of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary
for the consent of the Securityholders of any series affected thereby under this Section to approve the particular form of
any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect
of Supplemental Indentures.
Upon the execution
of any supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations
of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of
the series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms
and conditions of this Indenture for any and all purposes.
Section 9.04 Securities
Affected by Supplemental Indentures.
Securities of any series
affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to
the provisions of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such
form meets the requirements of any securities exchange upon which such series may be listed, as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion
of the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by
the Company, authenticated by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution
of Supplemental Indentures.
Upon the request of
the Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing
with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not
be obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, shall receive
an Officer’s Certificate or an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant
to this Article is authorized or permitted by the terms of this Article and that all conditions precedent to the execution
of the supplemental indenture have been complied with; provided, however, that such Officer’s Certificate or Opinion of Counsel
need not be provided in connection with the execution of a supplemental indenture that establishes the terms of a series of Securities
pursuant to Section 2.01 hereof.
Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company
shall (or shall direct the Trustee to) send a notice, setting forth in general terms the substance of such supplemental indenture,
to the Securityholders of all series affected thereby .as their names and addresses appear upon the Security Register. Any failure
of the Company to send, or cause the sending of, such notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
ARTICLE 10
SUCCESSOR ENTITY
Section 10.01 Company
May Consolidate, Etc.
Nothing contained in
this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated
with the Company) or successive consolidations or mergers in which the Company or its successor or successors shall be a party
or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor
or successors as an entirety, or substantially as an entirety, to any other Person (whether or not affiliated with the Company
or its successor or successors); provided, however, the Company hereby covenants and agrees that, upon any such consolidation or
merger (in each case, if the Company is not the survivor of such transaction) or any such sale, conveyance, transfer or other disposition
(other than a sale, conveyance, transfer or other disposition to a Subsidiary of the Company), the due and punctual payment of
the principal of (premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series,
according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture
with respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by
the Company shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture
Act, as then in effect) reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed
by such consolidation, or into which the Company shall have been merged, or by the entity which shall have acquired such property.
Section 10.02 Successor
Entity Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations
set forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and
be substituted for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor
corporation shall be relieved of all obligations and covenants under this Indenture and the Securities.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but
not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c) Nothing
contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into
the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise,
of all or any part of the property of any other Person (whether or not affiliated with the Company).
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction
and Discharge of Indenture.
If at any time: (a) the
Company shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered
to the Trustee for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been
replaced or paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore
been deposited in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such
trust, as provided in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to
the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year
or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption,
and the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental
Obligations or a combination thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of
that series not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due
or to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or
cause to be paid all other sums payable hereunder with respect to such series by the Company then this Indenture shall thereupon
cease to be of further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03,
7.10, 11.05 and 13.04, that shall survive until the date of maturity or redemption date, as the case may be, and Sections 7.06
and 11.05, that shall survive to such date and thereafter, and the Trustee, on demand of the Company and at the cost and expense
of the Company shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to such
series.
Section 11.02 Discharge
of Obligations.
If at any time all
such Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not become due and
payable as described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that
series not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or
to become due to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause
to be paid all other sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental
Obligations, as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect
to such series shall cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06,
7.10, 11.05 and 13.04 hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections
7.06 and 11.05 shall survive.
Section 11.03 Deposited
Moneys to be Held in Trust.
All moneys or Governmental
Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment
as due, either directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the
particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited
with the Trustee.
Section 11.04 Payment
of Moneys Held by Paying Agents.
In connection with
the satisfaction and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys or Governmental Obligations.
Section 11.05 Repayment
to Company.
Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or
premium, if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders
of such Securities for at least two years after the date upon which the principal of (and premium, if any) or interest on such
Securities shall have respectively become due and payable, or such other shorter period set forth in applicable escheat or abandoned
or unclaimed property law, shall be repaid to the Company on May 31 of each year or upon the Company’s request or (if
then held by the Company) shall be discharged from such trust; and thereupon the paying agent and the Trustee shall be released
from all further liability with respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled
to receive such payment shall thereafter, as a general creditor, look only to the Company for the payment thereof.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01 No
Recourse.
No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers
or directors as such, of the Company or of any predecessor or successor corporation, or any of them, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom; and that any and all such personal liability of every name and nature, either
at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator,
stockholder, officer or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of
such Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect
on Successors and Assigns.
All the covenants,
stipulations, promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
Section 13.02 Actions
by Successor.
Any act or proceeding
by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company
shall and may be done and performed with like force and effect by the corresponding board, committee or officer of any corporation
that shall at the time be the lawful successor of the Company.
Section 13.03 Surrender
of Company Powers.
The Company by instrument
in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved
to the Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise
expressly provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted to be
given, made or served by the Trustee, the Security Registrar, any paying or other agent under this Indenture or by the holders
of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited
in first class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as
follows: Trevena, Inc., 955 Chesterbrook Blvd., Suite 110, Chesterbrook, PA 19087, Attention: Chief Financial Officer.
Any notice, election, request or demand by the Company or any Securityholder or by any other Person pursuant to this Indenture
to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee.
Section 13.05 Governing
Law; Jury Trial Waiver.
This Indenture and
each Security shall be governed by, and construed in accordance with the internal laws of the State of New York, except to the
extent that the Trust Indenture Act is applicable.
EACH PARTY HERETO,
AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS INDENTURE.
Section 13.06 Treatment
of Securities as Debt.
It is intended that
the Securities will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.
Section 13.07 Certificates
and Opinions as to Conditions Precedent.
(a) Upon
any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture
(other than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been complied
with and, if requested, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion
need be furnished.
(b) Each
certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture (other than the certificate to be delivered pursuant to Section 13.12 of this Indenture or Section 314(a)(1) of
the Trust Indenture Act) shall include (i) a statement that the Person making such certificate or opinion has read such covenant
or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he
has made such examination or investigation as is reasonably necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and (iv) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 13.08 Payments
on Business Days.
Except as provided
pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in
one or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security
or the date of redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any)
may be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
Section 13.09 Conflict
with Trust Indenture Act.
If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Section 318(c) of the
Trust Indenture Act, such imposed duties shall control.
Section 13.10 Counterparts.
This Indenture may
be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission
shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original
Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original
signatures for all purposes.
Section 13.11 Separability.
In case any one or
more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.
Section 13.12 Compliance
Certificates.
The Company shall deliver
to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were outstanding, an
officer’s certificate stating whether or not the signers know of any Event of Default that occurred during such fiscal year.
Such certificate shall contain a certification from the principal executive officer, principal financial officer or principal accounting
officer of the Company that a review has been conducted of the activities of the Company and the Company’s performance under
this Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.12,
such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
If the officer of the Company signing such certificate has knowledge of such an Event of Default, the certificate shall describe
any such Event of Default and its status.
Section 13.13 U.S.A
Patriot Act.
The parties hereto
acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and
in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this
Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy
the requirements of the U.S.A. Patriot Act.
Section 13.14 Force
Majeure.
In no event shall the
Trustee, the Security Registrar, any paying agent or any other agent under this Indenture be responsible or liable for any failure
or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its
control, including without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions or utilities, communications or computer
(software and hardware) services; it being understood that the Trustee, the Security Registrar, any paying agent or any other agent
under this Indenture shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
Section 13.15 Table
of Contents; Headings.
The table of contents
and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof, and will not modify or restrict any of the terms or provisions hereof.
[Signature Page Follows]
IN WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
| |
TREVENA, INC. |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
| |
[TRUSTEE], as Trustee |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
CROSS-REFERENCE TABLE (1)
| Section of Trust Indenture Act of 1939, as Amended |
|
Section of Indenture |
| 310(a) |
|
7.09 |
| 310(b) |
|
7.08 |
| |
|
7.10 |
| 310(c) |
|
Inapplicable |
| 311(a) |
|
7.13 |
| 311(b) |
|
7.13 |
| 311(c) |
|
Inapplicable |
| 312(a) |
|
5.01 |
| |
|
5.02(a) |
| 312(b) |
|
5.02(c) |
| 312(c) |
|
5.02(c) |
| 313(a) |
|
5.04(a) |
| 313(b) |
|
5.04(b) |
| 313(c) |
|
5.04(a) |
| |
|
5.04(b) |
| 313(d) |
|
5.04(c) |
| 314(a) |
|
5.03 |
| |
|
13.12 |
| 314(b) |
|
Inapplicable |
| 314(c) |
|
13.07(a) |
| 314(d) |
|
Inapplicable |
| 314(e) |
|
13.07(b) |
| 314(f) |
|
Inapplicable |
| 315(a) |
|
7.01(a) |
| |
|
7.01(b) |
| 315(b) |
|
7.14 |
| 315(c) |
|
7.01 |
| 315(d) |
|
7.01(b) |
| 315(e) |
|
6.07 |
| 316(a) |
|
6.06 |
| |
|
8.04 |
| 316(b) |
|
6.04 |
| 316(c) |
|
8.01 |
| 317(a) |
|
6.02 |
| 317(b) |
|
4.03 |
| 318(a) |
|
13.09 |
| (1) | This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of
any of its terms or provisions. |
Exhibit 5.1
Troutman
Pepper Hamilton Sanders LLP
3000 Two Logan Square,
Eighteenth and Arch Streets
Philadelphia, PA 19103-2799
troutman.com
|
 |
D 215.981.4000
F 215.981.4750
Trevena, Inc.
955 Chesterbrook Blvd
Suite 110
Chesterbrook, PA 19087
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Trevena,
Inc., a Delaware corporation (the “Company”), in connection with the Company’s registration statement
on Form S-3 (the “Registration Statement”), including the prospectus that is part of the Registration Statement
(the “Prospectus”), filed on the date hereof, with the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the “Securities Act”). The Prospectus provides that it will be supplemented in the
future by one or more prospectus supplements (each, a “Prospectus Supplement”). The Prospectus, as supplemented
by the various Prospectus Supplements, will provide for the issuance and sale from time to time by the Company of up to an aggregate
of $200,000,000 (subject to the limitations of General Instruction I.B.6 of Form S-3) of any or all of (i) shares of common stock, $0.001
par value per share (the “Common Stock”), of the Company, (ii) shares of preferred stock, par value
$0.001 per share, of the Company, (the “Preferred Stock”), (iii) one or more series of debt securities of the
Company, which may include convertible debt securities of the Company that constitute a part of or that are issuable upon the conversion
or exercise of other Securities in the Registration Statement (the “Debt Securities”), (iv) warrants to purchase
shares of Common Stock, Preferred Stock or Debt Securities, or all three (the “Warrants”), or (v) any combination
of the foregoing securities. The Common Stock, Preferred Stock, Debt Securities and Warrants are collectively herein referred to as the
“Registered Securities.” The Registered Securities may be offered and sold by the Company from time to time
pursuant to Rule 415(a)(5) under the Securities Act as set forth in the Prospectus, as supplemented by the various Prospectus Supplements
that may be filed under the Securities Act. This opinion letter is furnished to you at your request to enable you to fulfill the requirements
of Item 601(b)(5) of Regulation S-K, in connection with the filing of the Registration Statement.
The Debt Securities will be issued pursuant to one or more indentures
in the form filed as an exhibit to the Registration Statement, as amended or supplemented from time to time (each, an “Indenture”),
between the Company, as obligor, and a trustee chosen by the Company and qualified to act as such under the Trust Indenture Act of 1939,
as amended (the “Trustee”).
Trevena,
Inc.
December 1, 2023
Page 2 |
 |
| |
|
We have reviewed the corporate proceedings taken by the Company with
respect to the registration of the Registered Securities. We have also examined and relied upon originals or copies of such corporate
records, documents, agreements or other instruments of the Company, and such certificates and records of public officials, and such other
papers, as we have deemed necessary or appropriate in connection herewith. As to all matters of fact (including, without limitation,
factual conclusions and characterizations and descriptions of purpose, intention or other state of mind) we have relied entirely upon
certificates of officers of the Company, and have assumed, without independent inquiry, the accuracy of those certificates.
In rendering this opinion, we have assumed the genuineness and authenticity
of all signatures on original documents; the legal capacity of all natural persons; the authenticity of all documents submitted to us
as originals; the conformity to originals of all documents submitted to us as certified or photocopies; the accuracy and completeness
of all documents and records reviewed by us; the accuracy, completeness and authenticity of certificates issued by any governmental official,
office or agency and the absence of change in the information contained therein from the effective date of any such certificate; and
the due authorization, execution and delivery of all documents where authorization, execution and delivery are prerequisites to the effectiveness
of such documents.
For purposes of this opinion letter, we have assumed that:
(i) the
issuance, sale, amount, and terms of each of the Registered Securities to be offered from time to time by the Company will be duly authorized
and established by proper action of the board of directors of the Company (the “Board”), and in accordance
with the Amended and Restated Certificate of Incorporation of the Company, as amended from time to time (the “Certificate
of Incorporation”), the Amended and Restated By-Laws, as amended from time to time (the “Bylaws”),
and applicable Delaware law, and that, at the time of each such issuance and sale of such Registered Securities, the Company will continue
to be validly existing and in good standing under the laws of the State of Delaware, with the requisite corporate power and authority
to issue and sell all such Registered Securities at such time;
(ii) any
shares of Common Stock (including any such shares included in Warrants) issued by the Company pursuant to the Registration Statement,
the Prospectus and the related Prospectus Supplement, from time to time will not exceed the maximum authorized number of shares of Common
Stock under the Certificate of Incorporation, as the same may have been amended, minus that number of shares of Common Stock that may
have been issued and are outstanding, or are reserved for issuance for other purposes, at such time;
(iii)
any shares of Preferred Stock (including any such shares included in Warrants) issued by the Company pursuant to the Registration Statement,
the Prospectus and the related Prospectus Supplement, from time to time will not exceed the maximum authorized number of shares of Preferred
Stock under the Certificate of Incorporation, as the same may have been amended, minus that number of shares of Common Stock that may
have been issued and are outstanding, or are reserved for issuance for other purposes, at such time;
Trevena,
Inc.
December 1, 2023
Page 3 |
|
| |
|
(iv) any
Warrants issued by the Company pursuant to the Registration Statement, the Prospectus and the related Prospectus Supplement, from time
to time, will be issued under one or more valid, binding, and enforceable warrant agreements (each a “Warrant Agreement”);
the Board will have taken all necessary corporate action to authorize the creation of and the terms of such Warrants and the issuance
of the Common Stock and/or Preferred Stock to be issued upon exercise of such Warrants and to approve the Warrant Agreement; neither
such Warrants nor such Warrant Agreement will include any provision that is unenforceable, that violates any applicable law or results
in a default under or breach of any agreement or instrument binding upon the Company; such Warrants or certificates representing such
Warrants will have been duly executed, countersigned, registered and delivered in accordance with the provisions of such Warrant Agreement;
the issuance and sale of the Warrants will not violate any applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and will comply with any requirements or restrictions imposed by any court or governmental body having
jurisdiction over the Company;
(v) any
Debt Securities issued by the Company pursuant to the Registration Statement, the Prospectus and the related Prospectus Supplement, from
time to time, will be issued under and in conformity with, a valid, binding and enforceable Indenture, which shall be delivered by the
Trustee, and the Trustee will have all requisite power and authority to effect the transactions contemplated by such Indenture, and the
Trustee or an authenticating agent for the Trustee will duly authenticate the Debt Securities pursuant to the applicable Indenture, and
the applicable Indenture will be the valid and binding obligation of the Trustee and will be enforceable against the Trustee in accordance
with its terms. We are expressing no opinion herein as to the application of or compliance with any foreign, federal or state law or
regulation to the power, authority or competence of any party, other than the Company, to the applicable Indenture;
(vi) all
requisite third-party consents necessary to register and/or issue the Registered Securities have been obtained by the Company;
(vii)
certificates representing shares of Common Stock will have been duly executed, countersigned, registered and delivered, or if uncertificated,
valid book-entry notations will have been made in the share register of the Company, in each case in accordance with the provisions of
the Company’s Certificate of Incorporation and Bylaws, each as amended and then in effect; and
(viii)
all Registered Securities will be offered and sold in compliance with applicable federal and state securities or “blue sky”
laws and in the manner specified in the Registration Statement and the applicable Prospectus Supplement.
Subject to the limitations set forth below, we have made such examination
of law as we have deemed necessary for the purposes of expressing the opinions set forth in this letter. Such opinions are limited solely
to matters governed by the General Corporation Law of the State of Delaware and the internal laws of the State of New York, in each case
without regard to conflict or choice of law principles and as applied by courts located in the particular jurisdiction, the applicable
provisions of the Delaware Constitution and the reported judicial decisions interpreting those laws.
Trevena,
Inc.
December 1, 2023
Page 4 |
|
| |
|
Based upon the foregoing, we are of the opinion that:
1. Following
effectiveness of the Registration Statement, the Common Stock, when duly authorized and issued against the full payment specified therefor,
which must have a value not less than the par value thereof, or upon conversion, exchange or exercise of Warrants in accordance with
the terms of such Registered Security or the instrument governing such Registered Security providing for such conversion, exchange or
otherwise, will be validly issued, fully paid and nonassessable.
2. Following
effectiveness of the Registration Statement, the Preferred Stock, when duly authorized and issued against the full payment specified
therefor, which must have a value not less than the par value thereof, or upon conversion, exchange or exercise of Warrants, in accordance
with the terms of such Registered Security or the instrument governing such Registered Security providing for such conversion, exchange
or otherwise, will be validly issued, fully paid and nonassessable.
3. Following
effectiveness of the Registration Statement, the Warrants registered under the Registration Statement, when duly authorized, executed
and delivered against the payment specified therefor and pursuant to a Warrant Agreement or agreements duly authorized, executed and
delivered by the Company and the holder of the Warrants, will be legally issued binding obligations of the Company enforceable against
the Company in accordance with their respective terms.
4. Following
effectiveness of the Registration Statement, the Debt Securities registered under the Registration Statement, when duly authorized, executed
and delivered against the payment specified therefor and pursuant to an Indenture duly authorized, executed and delivered by the Company
and the Trustee, will be legally issued binding obligations of the Company enforceable against the Company in accordance with their respective
terms.
In addition, our opinions in paragraphs 3 and 4 above are subject
to: (a) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter
in effect relating to or affecting the rights and remedies of creditors; (b) the effect of general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance
or injunctive relief, regardless of whether enforcement is considered in a proceeding in equity or at law, and the discretion of the
court before which any proceeding therefore may be brought; (c) the unenforceability under certain circumstances under law or court decisions
of provisions providing for the indemnification of, or contribution to, a party with respect to a liability where such indemnification
or contribution is contrary to public policy; (d) the rights or remedies available to any party for violations or breaches of any provisions
of the Warrants or Debt Securities, as applicable that are immaterial or the enforcement of which would be unreasonable under the then
existing circumstances; (e) the rights or remedies available to any party for material violations or breaches that are the proximate
result of actions taken by any party to the Warrants or Debt Securities, as applicable, other than the party against whom enforcement
is sought, which actions such other party is not entitled to take pursuant to the Warrants or Debt Securities, as applicable or that
otherwise violate applicable laws; (f) the rights or remedies available to any party that takes discretionary action that is arbitrary,
unreasonable or capricious, or is not taken in good faith or in a commercially reasonable manner, whether or not the Warrants or Debt
Securities, as applicable permit such action; or (g) the effect of the exercise of judicial discretion, whether in a proceeding in equity
or at law.
Trevena,
Inc.
December 1, 2023
Page 5 |
|
| |
|
This opinion letter is given as of the date hereof, and we express
no opinion as to the effect of subsequent events or changes in law occurring or becoming effective after the date hereof. We assume no
obligation to update this opinion letter or otherwise advise you with respect to any facts or circumstances or changes in law that may
hereafter occur or come to our attention.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading “Legal Matters” in the Prospectus included in
the Registration Statement. In rendering this opinion and giving this consent, we do not admit that we are an “expert” within
the meaning of the Securities Act.
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 reference to our firm under the caption "Experts"
in the Registration Statement (Form S-3) and related Prospectus of Trevena, Inc. for the registration of up to $200,000,000
of its common stock, preferred stock, debt securities and warrants and to the incorporation by reference therein 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.
| |
/s/ Ernst & Young LLP |
| Philadelphia, Pennsylvania |
| December 1, 2023 |
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Trevena, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
| |
Security
Type |
Security
Class Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered
(1) |
Proposed
Maximum
Offering
Price Per
Unit (2) |
Maximum
Aggregate
Offering
Price |
Fee Rate |
Amount of
Registration
Fee |
Carry
Forward
Form
Type |
Carry
Forward
File
Number |
Carry
Forward
Initial
Effective
Date |
Filing Fee
Previously
Paid In
Connection
with
Unsold
Securities
to be
Carried
Forward |
| Newly Registered Securities |
| Fees to Be Paid |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
| Fee Previously Paid |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
- |
| Carry Forward Securities |
| Carry Forward Securities |
Equity |
Common stock, par value $0.001 per share (4)(5) |
457(o) |
|
|
|
|
|
Form S-3 |
333-251006 |
December 4, 2020 |
|
| |
Equity |
Preferred stock, par value $0.001 per share (4) |
457(o) |
|
|
|
|
|
Form S-3 |
333-251006 |
December 4, 2020 |
|
| |
Debt |
Debt Securities |
457(o) |
|
|
|
|
|
Form S-3 |
333-251006 |
December 4, 2020 |
|
| |
Other |
Warrants (6) |
457(o) |
|
|
|
|
|
Form S-3 |
333-251006 |
December 4, 2020 |
|
| |
Unallocated (Universal) Shelf |
Unallocated (Universal) Shelf |
415(a)(6) |
|
|
$200,000,000(1)(2) |
0.0001091(3)(7) |
|
Form S-3 |
333-251006 |
December 4, 2020 |
$21,820(3)(7) |
| |
Total Offering Amounts |
|
$200,000,000 |
|
- |
|
|
|
|
| |
Total Fees Previously Paid |
|
|
|
- |
|
|
|
|
| |
Total Fee Offsets |
|
|
|
- |
|
|
|
|
| |
Net Fee Due |
|
|
|
$0 |
|
|
|
|
| (1) | There are being registered hereunder, an indeterminate number or amount,
as the case may be, of common stock, preferred stock, debt securities, and warrants to purchase common stock, as may be offered by the
registrant from time to time, which together shall have an aggregate initial offering price not to exceed $200,000,000. If
any debt securities are issued at an original issue discount, then the principal amount of such debt securities shall be in such greater
amount as shall result in an aggregate initial offering price not to exceed $200,000,000, less the aggregate dollar amount of all securities
previously issued hereunder. The securities included hereunder may be sold separately or with other securities registered hereunder.
The securities included hereunder also include an indeterminate number of securities as may be issued upon conversion of or exchange for
preferred stock or debt securities that provide for conversion or exchange, upon exercise of warrants, or pursuant to the anti-dilution
provisions of any of such securities. In addition, pursuant to Rule 416 of the Securities Act of 1933, as amended, or the Securities
Act, this registration statement also covers any additional securities that may be offered or issued in connection with any stock splits,
stock dividends or similar transactions. Includes rights to acquire common stock or preferred stock of the registrant under any shareholder
rights plan then in effect, if applicable under the terms of any such plan. |
| (2) | The proposed maximum offering price per security will be determined from time to time by the registrant in connection with the issuance
of the securities registered by this registration statement. The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee. In no event will the aggregate maximum offering price of all securities issued under
this registration statement exceed $200,000,000 and the amount of securities sold pursuant to this registration statement will not exceed
the limit in Instruction I.B.6.(a) of Form S-3, as applicable. The amount registered is not specified as to each class of securities
to be registered hereunder pursuant to Instruction 2.A.iii.b. of Item 16(b) of Form S-3 under the Securities Act. |
| (3) | Calculated in accordance with Rule 457(o) under the Securities Act based on the maximum aggregate offering price. |
| (4) | Shares of preferred stock or common stock may be issuable upon conversion of debt securities registered hereunder. No separate consideration
will be received for such preferred stock, depositary shares or common stock. |
| (5) | Shares of common stock may be issuable upon conversion of shares of preferred stock registered hereunder. No separate consideration
will be received for such shares of common stock. |
| (6) | Warrants will represent rights to purchase debt securities, common stock or preferred stock registered hereby. Because the warrants
will provide a right only to purchase such securities offered hereunder, no additional registration fee is required. |
| (7) | Pursuant to Rule 415(a)(6) under the Securities Act, the registrant is carrying forward to this registration statement $200,000,000
of unsold securities (the “Unsold Securities”) that have previously been registered under the registrant’s registration
statement on Form S-3 (File No. 333-251006) filed on November 27, 2020, and declared effective on December 4, 2020
(the “Prior Registration Statement”), and the registration fee of $21,820 associated with the offering of the Unsold Securities
(based on the filing fee rate in effect at the time of the filing of the Prior Registration Statement) will continue to be applied to
the Unsold Securities that are being carried forward to this registration statement. No additional filing fee is due with respect to the
Unsold Securities carried forward in this registration statement. To the extent that, after the filing date hereof and prior to the effectiveness
of this registration statement, the registrant sells any Unsold Securities pursuant to the Prior Registration Statement, the registrant
will identify in a pre-effective amendment to this registration statement the updated amount of Unsold Securities from the Prior
Registration Statement to be included in this registration statement pursuant to Rule 415(a)(6) and the updated amount of new
securities to be registered on this registration statement, if any. Pursuant to Rule 415(a)(6), the offering of securities under
the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this registration statement. |
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