Full Press Release Details
SUBSCRIPTION AGREEMENT
Ladies and Gentlemen:
Each undersigned entity (each an Investor and collectively the Investors ) hereby confirms and agrees with you as follows:
1. This Subscription Agreement (this Agreement ) is made as of the date set forth above between DURECT
Corporation, a Delaware corporation (the Company ) and the Investors.
2. The Company has authorized the sale and
issuance of up to 4,444,444 shares (the Shares ) of the Company s common stock, $0.0001 par value per share (the Common Stock ), for a purchase price of $2.25 per share (the Offering ). The
Offering and issuance of the Shares have been registered under the Securities Act of 1933, as amended (the Securities Act ), pursuant to the Company s Registration Statement on Form S-3 (No. 333-155042), including
all amendments thereto, the exhibits and any schedules thereto, the documents otherwise deemed to be a part thereof or included therein by the rules and regulations of the Commission (the Rules and Regulations ) and any
registration statement relating to the Offering and filed pursuant to Rule 462(b) under the Rules and Regulations (collectively, the Registration Statement ).
3. As of the Closing (as defined below) and subject to the terms and conditions hereof, the Company and the Investors agree that each Investor
will purchase from the Company and the Company will issue and sell to each Investor the number of Shares listed opposite the Investor s name on the Schedule of Investors attached hereto as Exhibit A. Certificates representing the Shares
will not be issued to any Investor; instead, such Shares will be credited to the Investors using customary procedures for book-entry transfer through the facilities of The Depository Trust Company ( DTC ).
4. The completion of the purchase and sale of the Shares shall occur at a closing (the Closing ) which, in accordance with
Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as amended (the Exchange Act ), is expected to occur on or about September 18, 2009. At the Closing, (a) the Company shall cause its transfer agent
to release to each Investor the Shares and (b) the aggregate purchase price will be delivered by or on behalf of the Investors to the Company. The Investors shall settle via Deposit/Withdrawal At Custodian ( DWAC ) and the
provisions set forth in Exhibit B hereto shall be incorporated herein by reference as if set forth fully herein.
Company has filed with the Securities and Exchange Commission (the Commission ) a prospectus (the Base Prospectus ) and will promptly file a final prospectus supplement (collectively with the Base Prospectus, the
Prospectus ) with respect to the Registration Statement in conformity with the Securities Act, including Rule 424(b) thereunder. The Company will cause to be delivered or made available a copy of the Prospectus to the Investors
prior to Closing and the Investors hereby consent to the receipt of the Company s Prospectus in portable document format, or .pdf, via e-mail.
6. At or prior to the Applicable Time (as defined below), the Company had prepared the following
information (collectively, the Time of Sale Information ): (a) the Base Prospectus and (b) each free-writing prospectus (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.
Applicable Time means 4:30 P.M., Pacific Daylight Time, on September 10, 2009.
7. The obligations of the
Company and the Investors to complete the transactions contemplated by this Agreement shall be subject to the following:
Company s obligation to issue and sell the Shares to the Investors shall be subject to: (i) the receipt by the Company of the purchase price for the Shares being purchased hereunder as set forth on the signature page hereto and
(ii) the accuracy of the representations and warranties made by the Investors and the fulfillment of those undertakings of the Investors to be fulfilled prior to the Closing Date.
(b) The Investors obligations to purchase the Shares will be subject to the condition that the representations and warranties made by the
Company shall be true and correct as of the Closing Date.
8. The Company makes the following representations, warranties and
covenants to the Investors:
(a) Valid Existence and Good Standing of the Company. The Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the business, properties, management, financial position, stockholders equity, results of operations or prospects of the Company taken as a whole or on the performance by the Company of its
obligations under this Agreement (a Material Adverse Effect ).
(b) Execution and Delivery of the Agreement.
The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the
Company and the consummation by it of the transactions contemplated hereunder have been duly authorized by all necessary action on the part of the Company. This Agreement has been duly executed by the Company and, when delivered in accordance with
the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as may be limited by any bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws affecting the enforcement of creditors rights generally or by general principles of equity.
Press Release. The Company shall (i) before 8:30 A.M., New York City time, on September 11, 2009, issue a press release, disclosing all material aspects of the transactions contemplated hereby, (ii) on September 11,
2009, file with the Commission a Current Report on Form 8-K, disclosing the material terms and conditions of the transactions contemplated hereby and (iii) make such other filings and notices in the manner and time required by the Commission
transactions contemplated hereby. The Company shall not publicly disclose the name of the Investors, or include the name of the Investors in any filing with
the Commission or any regulatory agency or trading market, without the prior written consent of the Investors, except (x) as required by U.S. federal securities law or trading market regulations, in which case the Company shall provide the
Investors with prior notice thereof or (y) for disclosures consistent with prior disclosures that have been approved by the Investors in accordance with this paragraph.
(d) No Disclosure of Material Non-Public Information. Except with respect to the material terms and conditions of the transactions
contemplated by this Agreement, neither the Company, nor any other Person acting on the Company s behalf has provided or will knowingly provide any Investor or its agents or counsel with any information that the Company believes constitutes
material non-public information, unless prior thereto the Investor shall have executed a written agreement regarding the confidentiality and use of such information. The Company understands and confirms that the Investors shall rely on this
Section 8(d) in effecting transactions in securities of the Company.
(e) Time of Sale Information. The Time of Sale
Information, at the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading. No order preventing or suspending the use of any of the Time of Sale Information has been issued by the Commission.
Issuer Free Writing Prospectus. The Company (including its agents and representatives) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written
communication (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Shares (each such communication by the Company or its agents and representatives, an Issuer
Free Writing Prospectus ) other than the documents listed on Annex A hereto. Each such Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offer and sale of the Shares
did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Time of Sale Information or the Prospectus.
(g) S-3 Eligibility. At the earliest time after the filing of the Registration Statement that the Company made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Securities Act) of the Shares, the Company was not an ineligible issuer as defined in Rule 405 under the Securities Act.
(h) Registration Statement and Prospectus. The Registration Statement has been declared effective by the Commission. The Company has filed
with the Commission, the Registration Statement on such form, including the Base Prospectus, for registration under the Securities Act of the offering and sale of the Shares. No order suspending the effectiveness of the Registration Statement has
been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has, to the knowledge of the Company, been initiated or threatened by the
Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act, and did not and will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and
as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. There are no contracts or documents which are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits thereto which have not been so described and filed as
(i) Incorporated Documents. The documents incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, when they become effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as
(j) Capitalization. The authorized capital stock of the Company conforms as to legal matters to the description
thereof contained in the Prospectus.
(k) Authorization and Valid Issuance of the Shares. The Shares to be sold by the
Company have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar
(l) Further Offerings. The Company shall not sell, offer for sale or solicit offers to buy any security (as defined
in Section 2 of the Securities Act) in a transaction that would be (i) integrated with the offer or sale of the Shares for purposes of the rules and regulations of the Nasdaq Global Market and (ii) would require approval of the
Company s stockholders prior to the closing of such other transaction, unless such stockholder approval is obtained before the closing of such other transaction.
(m) No Conflicts. The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement or other instrument binding upon the Company that is material to the Company, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over
(n) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with
any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement, the issuance by the Company of any of the Shares or the consummation of any of the transactions
contemplated by this Agreement, except for such additional steps as may be required by the Financial Industry Regulatory Authority ( FINRA ), the registration of the offer and sale of the Shares under the Securities Act and such
consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable state securities laws.
(o) No Governmental Proceedings. There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company is a party or to which any of the properties of the Company is
subject that are required to be described in the Registration Statement or the Prospectus and are not so described or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
with Applicable Laws; Authorizations. The Company is and at all times has been in material compliance with all statutes, rules and regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use,
distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed by or for the Company ( Applicable Laws ), and has not received any Form 483 from the
Food and Drug Administration (the FDA ), notice of adverse finding, warning letter, untitled letter or other correspondence or notice from
any court or arbitrator or governmental or regulatory authority or third party alleging or asserting material noncompliance with any Applicable Laws or any licenses, exemptions, certificates, approvals, clearances, authorizations, permits and
supplements or amendments thereto required by any such Applicable Laws ( Authorizations ). The Company possesses all material Authorizations required for the operation of its business as currently conducted and such Authorizations
are valid and in full force and effect and the Company is not in violation of any term of any such Authorizations, except for violations that, individually or in the aggregate have not had, and would not reasonably be expected to have, a Material
(q) Clinical Trials. The descriptions in the Registration Statement and the Prospectus of the design, status
and results of clinical and pre-clinical trials conducted by or on behalf of or sponsored by the Company, or in which the Company have participated, are accurate and complete in all material respects and fairly present the data derived from such
trials and the Company has no knowledge of any other trials the results of which are inconsistent with or otherwise call into question the results described or referred to in the Registration Statement and the Prospectus, taken as a whole; the
Company has operated and is currently in compliance in all material respects with all applicable statutes, rules, regulations and policies of the FDA and comparable drug regulatory agencies outside of the United States to which it is subject
(collectively, the Regulatory Authorities ) and all clinical trials have been conducted in accordance with good clinical practices and standard medical and scientific research procedures; and the Company has not received any
notices, correspondence or other communication from the Regulatory Authorities or any other governmental agency which could reasonably lead to the early termination or suspension of any ongoing clinical trials or pre-clinical studies that are
described in the Registration Statement and the Prospectus or the results of which are referred to in the Registration Statement and the Prospectus and, to the Company s knowledge, there are no reasonable grounds for the same, including on the
basis of pending or submitted safety reports concerning products manufactured or distributed by or for the Company.
Matters. The Company has duly and properly filed or caused to be filed with the United States Patent and Trademark Office (the PTO ) and foreign and international patent authorities all patent applications owned or exclusively
licensed by the Company related to the Company s programs disclosed in the Prospectus as well as the Company s periodic reports and other information incorporated by reference therein (the Company Patent Applications ),