COMMON STOCK PURCHASE AGREEMENT

Exhibit 10.2

Execution Copy

COMMON STOCK PURCHASE AGREEMENT

by and between

KINGSBRIDGE CAPITAL LIMITED

and

NEUROCRINE BIOSCIENCES, INC.

dated as of September 15, 2009

TABLE OF CONTENTS

     This COMMON STOCK PURCHASE AGREEMENT (this “ Agreement ”) is entered into as of the 15 ^th day of September, 2009, by and between Kingsbridge Capital Limited, an entity organized and existing under the laws of the British Virgin Islands, whose business address is P.O. Box 1075, Elizabeth House, 9 Castle Street, St. Helier, Jersey, Channel Islands (the “ Investor ”), and Neurocrine Biosciences, Inc., a corporation organized and existing under the laws of the State of Delaware (the “ Company ”).

     WHEREAS, the parties desire that, upon the terms and subject to the conditions and limitations set forth herein, the Company may issue and sell to the Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to $75 million worth of shares of Common Stock (as defined below); and

     WHEREAS, such investments will be made in reliance upon the provisions of Section 4(2) (“ Section 4(2) ”) and Regulation D (“ Regulation D ”) of the United States Securities Act of 1933, as amended and the rules and regulations promulgated thereunder (the “ Securities Act ”), and/or upon such other exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the investments in Common Stock to be made hereunder; and

     WHEREAS, the parties hereto are concurrently entering into a Registration Rights Agreement in the form of Exhibit A hereto (the “ Registration Rights Agreement ”) pursuant to which the Company shall register the Common Stock issued and sold to the Investor under this Agreement, upon the terms and subject to the conditions set forth therein;

     NOW, THEREFORE, the parties hereto agree as follows:

ARTICLE I
DEFINITIONS

     As used in this Agreement, the following terms shall have the meanings set forth below:

     “ Average Trading Volume ” means the average trading volume of the thirty (30) Trading Days during the sixty (60) Trading Days prior to the date of delivery of the Draw Down Notice that results from excluding the fifteen (15) highest trading volume and fifteen (15) lowest trading volume Trading Days during such sixty (60) Trading Day period.

     “ Blackout Amount ” shall have the meaning assigned to such term in the Registration Rights Agreement.

     “ Blackout Notice ” shall have the meaning assigned to such term in the Registration Rights Agreement.

     “ Blackout Shares ” shall have the meaning assigned to such term in the Registration Rights Agreement.

     “ Bylaws ” shall have the meaning assigned to such term in Section 4.3 hereof.

     “ Charter ” shall have the meaning assigned to such term in Section 4.3 hereof.

     “ Closing Date ” shall have the meaning assigned to such term in Section 2.2 hereof.

     “ Closing Price ” as of any particular day shall mean the closing price per share of the Common Stock as reported by the Principal Market on such day.

     “ Commission ” means the United States Securities and Exchange Commission.

     “ Commission Documents ” shall have the meaning assigned to such term in Section 4.6 hereof.

     “ Commitment Period ” means the period commencing on the Effective Date and expiring on the earliest to occur of (i) the date on which the Investor shall have purchased Shares pursuant to this Agreement for an aggregate purchase price or share number, as the case may be, equal to the Maximum Commitment Amount, (ii) the date this Agreement is terminated pursuant to Article VIII hereof, and (iii) the date occurring thirty-six (36) months from the Effective Date.

     “ Common Stock ” means the common stock of the Company, par value $0.001 per share.

     “ Condition Satisfaction Date ” shall have the meaning assigned to such term in Article VII hereof.

     “ Damages ” means any loss, claim, damage, liability, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses and costs and reasonable expenses of expert witnesses and investigation).

     “ Draw Down ” shall have the meaning assigned to such term in Section 3.1 hereof.

     “ Draw Down Amount ” means the actual dollar amount of a Draw Down paid to the Company.

     “ Draw Down Discount Price ” means, for any Trading Day during a Draw Down Pricing Period, (i) 90% of the VWAP on any Trading Day during the Draw Down Pricing Period when the VWAP is equal to or exceeds $1.00 but is less than or equal to $4.85, (ii) 92% of the VWAP on any Trading Day during the Draw Down Pricing Period when the VWAP is equal to or exceeds $4.86 but is less than or equal to $6.60, (iii) 94% of the VWAP on any Trading Day during the Draw Down Pricing Period when VWAP is equal to or exceeds $6.61 but is less than or equal to $9.40, or (iv) 95% of the VWAP on any Trading Day during the Draw Down Pricing Period when the VWAP exceeds $9.40.

     “ Draw Down Notice ” shall have the meaning assigned to such term in Section 3.1 hereof.

     “ Draw Down Pricing Period ” shall mean, with respect to each Draw Down, a period of eight (8) consecutive Trading Days beginning on the first Trading Day specified in a Draw Down Notice.

     “ DTC ” shall mean the Depository Trust Company, or any successor thereto.

     “ Effective Date ” means the first Trading Day immediately following the date on which the Registration Statement is declared effective by the Commission.

     “ Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

     “ FINRA ” means the Financial Industry Regulatory Authority.

     “ Fixed Purchase Amount ” means, in respect of any Draw Down, (i) once (but not more than once) per calendar quarter during the Commitment Period, up to 1.75% of the Company’s Market Capitalization as of the date of delivery of the applicable Draw Down Notice and (ii) for any additional Draw Downs during such calendar quarter, up to 1.25% of the Company’s Market Capitalization as of the date of delivery of the applicable Draw Down Notice.

     “ Knowledge ” means the actual knowledge of the Company’s Chief Executive Officer or Chief Financial Officer.

     “ Liquidity Ratio ” means 0.20 (twenty percent (20%)).

     “ Market Capitalization ” means, as of any Trading Day, the product of (i) the closing sale price of the Common Stock as reported by Bloomberg L.P. using the AQR function and (ii) the number of outstanding shares of Common Stock as reported by Bloomberg L.P. using the DES function.

     “ Material Adverse Effect ” means any effect that is not negated, corrected, cured or otherwise remedied within a reasonable period of time on the business, operations, properties or financial condition of the Company and its consolidated subsidiaries that is material and adverse to the Company and such subsidiaries, taken as a whole, and/or any condition, circumstance, or situation that would prohibit or otherwise interfere with the ability of the Company to perform any of its obligations under this Agreement or the Registration Rights Agreement in any material respect; provided, however, that none of the following shall constitute a “ Material Adverse Effect ”: (i) the effects of conditions or events that are generally applicable to the capital, financial, banking or currency markets or the biotechnology or pharmaceutical industries; (ii) the effects of conditions or events that are reasonably expected to occur in the Company’s ordinary course of business (such as, by way of example only, failed clinical trials, serious adverse events involving the Company’s product candidates or products, delays in product development or commercial launch, unfavorable regulatory determinations, difficulties in generating product sales or involving collaborators or intellectual property disputes); (iii) any changes or effects resulting from the announcement or consummation of the transactions contemplated by this Agreement, including, without limitation, any changes or effects associated with any particular Draw Down, and (iv) changes in the market price of the Common Stock.

     “ Maximum Commitment Amount ” means the lesser of (i) $75 million in aggregate Draw Down Amounts or (ii) 7,814,064 shares of Common Stock (as adjusted for stock splits, stock combinations, stock dividends and recapitalizations that occur on or after the date of this Agreement) minus the number of Blackout Shares, if any, delivered to the Investor under the

Registration Rights Agreement; provided, however, that the Maximum Commitment Amount shall not exceed under any circumstances that number of shares of Common Stock that the Company may issue pursuant to this Agreement and the transactions contemplated hereby without (a) breaching the Company’s obligations under the rules and regulations of the Principal Market or (b) obtaining stockholder approval under the applicable rules and regulations of the Principal Market.

     “ Maximum Draw Down Amount ” means the lesser of (i) $15 million and (ii) the greater of (x) the Fixed Purchase Amount and (y) the Purchase Amount Option.

     “ Permitted Transaction ” shall have the meaning assigned to such term in Section 6.6 hereof.

     “ Person ” means any individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including any government or political subdivision or an agency or instrumentality thereof.

     “ Principal Market ” means the NASDAQ Capital Market, the NASDAQ Global Select Market, the NASDAQ Global Market, the American Stock Exchange or the New York Stock Exchange, whichever is at the time the principal trading exchange or market for the Common Stock.

     “ Prohibited Transaction ” shall have the meaning assigned to such term in Section 6.7 hereof.

     “ Prospectus ” as used in this Agreement means the prospectus in the form included in the Registration Statement, as supplemented from time to time pursuant to Rule 424(b) of the Securities Act.

     “ Purchase Amount Option ” means, in respect of any Draw Down, up to: the lesser of (i) 2.75% of the Company’s Market Capitalization as of the date of delivery of the applicable Draw Down Notice and (ii) the product of (A) the Average Trading Volume multiplied by (B) the Closing Price on the Trading Day preceding the date of delivery of the applicable Draw Down Notice multiplied by (C) the number of Trading Days during a Draw Down Pricing Period (8) multiplied by (D) the Liquidity Ratio (0.20).

     “ Registrable Securities ” means the Shares and any Common Stock issued or issuable with respect to any of the Shares while such Shares are Registrable Securities by way of exchange, stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise (including, for the avoidance of doubt, any Blackout Shares issued pursuant to the Registration Rights Agreement). As to any particular Registrable Securities, once issued such securities shall cease to be Registrable Securities when (w) the Registration Statement has been declared effective by the Commission and such Registrable Securities have been disposed of pursuant to the Registration Statement, (x) such Registrable Securities have been sold under circumstances under which all of the applicable conditions of Rule 144 (or any similar provision then in force) under the Securities

Act (“ Rule 144 ”) are met, (y) such time as such Registrable Securities have been otherwise transferred to holders who may trade such shares without restriction under the Securities Act, and the Company has delivered a new certificate or other evidence of ownership for such securities not bearing a restrictive legend or (z) in the opinion of counsel to the Company such Registrable Securities may be sold without registration and without any time, volume or manner limitations pursuant to Rule 144 (or any similar provision then in effect) under the Securities Act.

     “ Registration Rights Agreement ” shall have the meaning set forth in the recitals of this Agreement.

     “ Registration Statement ” shall have the meaning assigned to such term in the Registration Rights Agreement.

     “ Regulation D ” shall have the meaning set forth in the recitals of this Agreement.

     “ Section 4(2) ” shall have the meaning set forth in the recitals of this Agreement.

     “ Securities Act ” shall have the meaning set forth in the recitals of this Agreement.

     “ Settlement Date ” shall have the meaning assigned to such term in Section 3.5 hereof.

     “ Shares ” means the shares of Common Stock of the Company that are and/or may be purchased hereunder.

     “ Threshold Price ” shall have the meaning assigned to such term in Section 3.6 hereof.

     “ Trading Day ” means any day other than a Saturday or a Sunday on which the Principal Market is open for trading in equity securities.

     “ VWAP ” means the volume weighted average price (the aggregate sales price of all trades of Common Stock during each Trading Day divided by the total number of shares of Common Stock traded during such Trading Day) of the Common Stock during any Trading Day as reported by Bloomberg, L.P. using the AQR function.

ARTICLE II
PURCHASE AND SALE OF COMMON STOCK

     Section 2.1 Purchase and Sale of Stock . Upon the terms and subject to the conditions set forth in this Agreement, the Company shall to the extent it elects to make Draw Downs in accordance with Article III hereof, issue and sell to the Investor and the Investor shall purchase Common Stock from the Company for an aggregate (in Draw Down Amounts) of up to the Maximum Commitment Amount, consisting of purchases based on Draw Downs in accordance with Article III hereof.

     Section 2.2 Closing . In consideration of and in express reliance upon the representations, warranties, covenants, terms and conditions of this Agreement, the Company

agrees to issue and sell to the Investor, and the Investor agrees to purchase from the Company, that number of the Shares to be issued in connection with each Draw Down. The execution and delivery of this Agreement (the “ Closing ”) shall take place at the offices of Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New York, NY 10038 at 5:00 p.m. local time on September 15 ^th , 2009, or at such other time and place (including, without limitation, by way of facsimile exchange of executed documents from different locations) or on such date as the Investor and the Company may agree upon (the “ Closing Date ”). Each party shall deliver at or prior to the Closing all documents, instruments and writings required to be delivered at the Closing by such party pursuant to this Agreement.

     Section 2.3 Registration Statement and Prospectus . The Company shall prepare and file with the Commission the Registration Statement (including the Prospectus) in accordance with the provisions of the Securities Act and the Registration Rights Agreement.

     Section 2.4 Blackout Shares . The Company shall deliver any Blackout Amount or issue and deliver any Blackout Shares to the Investor in accordance with Section 1.1(e) of the Registration Rights Agreement.

ARTICLE III
DRAW DOWN TERMS

     Subject to the satisfaction of the conditions hereinafter set forth in this Agreement, the parties agree as follows:

     Section 3.1 Draw Down Notice . During the Commitment Period, the Company may, in its sole discretion, issue a Draw Down Notice (as hereinafter defined) which shall specify the dollar amount the Company intends to raise from the sale to the Investor of Common Stock hereunder (each such capital raising transaction, a “ Draw Down ”) up to a Draw Down Amount equal to the Maximum Draw Down Amount. The Investor shall be obligated to accept each Draw Down initiated by the Company, subject to the terms and conditions hereinafter provided. The Company shall inform the Investor in writing by sending a duly completed notice in the form of Exhibit B hereto (each, a “ Draw Down Notice ”) by e-mail to the addresses set forth in Section 10.4, with a copy to the Investor’s counsel, as to such Draw Down Amount before commencement of trading on the first Trading Day of the related Draw Down Pricing Period. In addition to the Draw Down Amount, each Draw Down Notice shall designate the first Trading Day of the Draw Down Pricing Period. In no event shall any Draw Down Amount exceed the Maximum Draw Down Amount. Each Draw Down Notice shall be accompanied by a certificate, signed by the Chief Executive Officer, Chief Financial Officer or General Counsel, dated as of the date of such Draw Down Notice, in the form of Exhibit C hereof.

     Section 3.2 Number of Shares . Subject to Section 3.6(b), the number of Shares to be issued in connection with each Draw Down shall be equal to the sum of the number of shares issuable on each Trading Day of the Draw Down Pricing Period. Subject to Section 3.6(b), the number of shares issuable on a Trading Day during a Draw Down Pricing Period shall be equal to the quotient of one eighth (1/8th) of the Draw Down Amount divided by the Draw Down Discount Price for such Trading Day.

     Section 3.3 Limitation on Draw Downs . Only one Draw Down shall be permitted for each Draw Down Pricing Period.

     Section 3.4 Trading Cushion . Unless the parties agree in writing otherwise, there shall be a minimum of three (3) Trading Days between the expiration of any Draw Down Pricing Period and the beginning of the next succeeding Draw Down Pricing Period.

     Section 3.5 Settlement . The number of Shares purchased by the Investor in any Draw Down shall be determined and settled on two separate dates. Shares purchased by the Investor during the first four Trading Days of any Draw Down Pricing Period shall be determined and settled no later than the sixth Trading Day of such Draw Down Pricing Period. Shares purchased by the Investor during the second four Trading Days of any Draw Down Pricing Period shall be determined and settled no later than the second Trading Day after the last Trading Day of such Draw Down Pricing Period. Each date on which settlement of the purchase and sale of Shares occurs hereunder being referred to as a “ Settlement Date .” The Investor shall provide the Company with delivery instructions for the Shares to be issued at each Settlement Date at least two Trading Days in advance of such Settlement Date. The number of Shares actually issued shall be rounded down to the nearest whole number of Shares.

     Section 3.6 Delivery of Shares; Payment of Draw Down Amount .

          (a) On each Settlement Date, the Company shall deliver the Shares purchased by the Investor to the Investor or its designee(s) exclusively via book entry through the DTC to an account designated by the Investor, and upon receipt of the Shares, the Investor shall cause payment thereof to be made to the Company’s designated account by wire transfer of immediately available funds, if the Shares are received by the Investor no later than 12:00 p.m. (Eastern Time), or next day available funds, if the Shares are received thereafter. Upon the written request of the Company, the Investor will cause its banker to confirm to the Company that the Investor has provided irrevocable instructions to cause payment for the Shares to be made as set forth above, upon confirmation by such banker that the Shares have been delivered through the DTC in unrestricted form.

          (b) For each Trading Day during a Draw Down Pricing Period on which the VWAP is less than the greater of: (i) 85% of the Closing Price of the Company’s Common Stock on the Trading Day immediately preceding the commencement of such Draw Down Pricing Period, (ii) $1.00 or (iii) the price specified by the Company in the applicable Draw Down Notice (the “ Threshold Price ”), such Trading Day shall not be used in calculating the number of Shares to be issued in connection with such Draw Down, and the Draw Down Amount in respect of such Draw Down Pricing Period shall be reduced by one eighth (1/8th) of the initial Draw Down Amount specified in the Draw Down Notice. If trading in the Company’s Common Stock is suspended for any reason for more than three (3) consecutive or non-consecutive hours during trading hours on the Principal Market on any Trading Day during a Draw Down Pricing Period, such Trading Day shall be disregarded in calculating the number of Shares to be issued in connection with such Draw Down, and the Draw Down Amount in respect of such Draw Down Pricing Period shall be reduced by one eighth (1/8th) of the initial Draw Down Amount specified in the Draw Down Notice. In addition, in the event that the Company

delivers a Blackout Notice to the Investor at any time on or after the date that a Draw Down Notice is delivered, each Trading Day during the applicable Draw Down Pricing Period after the delivery of such Blackout Notice shall be disregarded (subject to waiver by the Investor in respect of all, but not less than all, Trading Days that occur after the termination of the applicable Blackout Period) for the purposes of calculating the number of Shares to be issued in respect of the applicable Draw Down, and the Draw Down Amount in respect of such Draw Down Pricing Period shall be reduced by one eighth (1/8th) of the initial Draw Down Amount specified in the Draw Down Notice for each such Trading Day that is so disregarded. For the avoidance of doubt, any Trading Day that is disregarded for the purposes of calculating the number of Shares to be issued in connection with a Draw Down in accordance with the foregoing shall only reduce such number of Shares by one eighth (1/8th), notwithstanding that such Trading Day may be so disregarded for more than one of the reasons specified above.

     Section 3.7 Failure to Deliver Shares . If on any Settlement Date, the Company fails to cause the delivery of the Shares purchased by the Investor, and such failure is not cured within two (2) Trading Days following such Settlement Date, the Company shall pay to the Investor on demand in cash by wire transfer of immediately available funds to an account designated by the Investor as liquidated damages for such failure and not as a penalty, an amount equal to one and a quarter percent (1.25%) of the payment required to be paid by the Investor on such Settlement Date ( i.e. , the Draw Down Amount) for the initial 30 days following such Settlement Date until the Shares have been delivered, and an additional 1.25% for each additional 30-day period thereafter until the Shares have been delivered, which amount shall be prorated for such periods less than 30 days; provided, however , that in the event that the Company is prevented from delivering Shares in respect of any such Settlement Date in a timely manner by any fact or circumstance that is not reasonably within the control of, or directly attributable to, the Company, or is otherwise reasonably within the control of, or directly attributable to, the Investor, then such two (2) Trading Day period shall be automatically extended until such time as such fact or circumstance is cured. For the purposes of this Section 3.7 facts or circumstances that are reasonably within the control of the Company include such facts and circumstances solely attributable to acts or omissions of the Company, its officers, directors, employees, agents and representatives, including, without limitation, any transfer agent(s) and/or accountant(s) engaged by the Company in connection with the Company’s performance of its obligations hereunder. Notwithstanding anything to the contrary set forth in this Agreement, in the event that the Company pays the Make Whole Amount (plus interest, if applicable) in respect of any Settlement Date in accordance with this Section 3.7, such payment shall be the Investor’s sole remedy in respect of the Company’s failure to deliver Shares in respect of such Settlement Date, and the Company shall not be obligated to deliver such Shares.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     The Company hereby makes the following representations and warranties to the Investor:

     Section 4.1 Organization, Good Standing and Power . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and

assets and to carry on its business as now being conducted. Except as set forth in the Commission Documents (as defined below), as of the date hereof, the Company does not own more than fifty percent (50%) of the outstanding capital stock of or control any other business entity, other than any wholly-owned subsidiary that is not “ significant ” within the meaning of Regulation S-X promulgated by the Commission. The Company is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, other than those in which the failure to be so qualified or be in good standing would not have a Material Adverse Effect.

     Section 4.2 Authorization; Enforcement . (i) The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and the Registration Rights Agreement and to issue the Shares and any Blackout Shares (except to the extent that the number of Blackout Shares required to be issued exceeds the number of authorized shares of Common Stock under the Charter); (ii) the execution and delivery of this Agreement and the Registration Rights Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Directors or stockholders is required (other than as contemplated by Section 6.5); and (iii) each of this Agreement and the Registration Rights Agreement has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership, or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or indemnification or by other equitable principles of general application (including any limitation of equitable remedies).

     Section 4.3 Capitalization . The authorized capital stock of the Company and the shares thereof issued and outstanding are set forth in the Commission Documents as of the dates specified therein. All of the outstanding shares of the Common Stock have been duly and validly authorized and issued, and are fully paid and non-assessable. Except as set forth in this Agreement, as described in the Commission Documents or as disclosed on a schedule (the “ Disclosure Schedule ”) previously delivered to the Investor, as of June 30, 2009, no shares of Common Stock were entitled to preemptive rights or registration rights and there were no outstanding options, warrants, scrip, rights issued by the Company to subscribe to, call or commitments of any character whatsoever issued by the Company relating to, or securities or rights convertible into or exchangeable for or giving any right to subscribe for, any shares of capital stock of the Company, except for stock options and restricted stock units issued by the Company to its employees, directors and consultants. Except as set forth in this Agreement, the Commission Documents, or as previously disclosed to the Investor in the Disclosure Schedule, as of June 30, 2009, there were no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options, securities or rights convertible into or exchangeable for or giving any right to subscribe for any shares of capital stock of the Company. Except as described in the Commission Documents or as previously disclosed to the Investor in the Disclosure Schedule, as

of the date hereof the Company is not a party to any agreement granting registration rights to any Person with respect to any of its equity or debt securities. Except as set forth in the Commission Documents or as previously disclosed to the Investor in the Disclosure Schedule, as of the date hereof the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. The offer and sale of all capital stock, convertible securities, rights, warrants, or options of the Company issued during the twelve month period immediately prior to the Closing complied in all material respects with all applicable federal and state securities laws, and no stockholder has a right of rescission or damages with respect thereto that would have a Material Adverse Effect. The Company has furnished or made available to the Investor true and correct copies of the Company’s Amended and Restated Certificate of Incorporation, as amended and in effect on the date hereof (the “ Charter ”), and the Company’s Amended and Restated Bylaws, as amended and in effect on the date hereof (the “ Bylaws ”).

     Section 4.4 Issuance of Shares . Subject to Section 6.5, the Shares have been, and any Blackout Shares will be, duly authorized by all necessary corporate action (except to the extent that the number of Blackout Shares required to be issued exceeds the number of authorized shares of Common Stock under the Charter) and, when issued and paid for in accordance with the terms of this Agreement and the Registration Rights Agreement, and subject to, and in reliance on, the representations, warranties and covenants made herein by the Investor, the Shares shall be validly issued and outstanding, fully paid and non-assessable, and the Investor shall be entitled to all rights accorded to a holder of shares of Common Stock.

     Section 4.5 No Conflicts . The execution, delivery and performance of this Agreement, the Registration Rights Agreement, and any other document or instrument contemplated hereby or thereby, by the Company and the consummation by the Company of the transactions contemplated hereby and thereby do not and shall not in any material respect: (i) result in the violation of any provision of the Charter or Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give rise to any rights of termination, amendment, acceleration or cancellation of, any material agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company is a party and that has not been waived where such default or conflict would constitute a Material Adverse Effect, (iii) create or impose a lien, charge or encumbrance on any property of the Company under any agreement or any commitment to which the Company is a party or by which the Company is bound or by which any of its respective properties or assets are bound which would constitute a Material Adverse Effect, (iv) result in a violation of any federal, state, local or foreign statute, rule, regulation, order, writ, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries are bound or affected where such violation would constitute a Material Adverse Effect, or (v) require any consent of any third-party that has not been obtained pursuant to any material contract to which the Company is subject or to which any of its assets, operations or management may be subject where the failure to obtain any such consent would constitute a Material Adverse Effect. The Company is not required under applicable federal, state or local law, rule or regulation to obtain any consent, authorization or

order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement or the Registration Rights Agreement, or issue and sell the Shares or the Blackout Shares (except to the extent that the number of Blackout Shares required to be issued exceeds the number of authorized shares of Common Stock under the Charter) in accordance with the terms hereof and thereof (other than any required filings that the Company is permitted to make with the Commission, the FINRA, the Principal Market or state securities commissions subsequent to the Closing, and, any registration statement (including any amendment or supplement thereto) or any other filing or consent which may be filed pursuant to this Agreement or the Registration Rights Agreement); provided that, for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the Investor herein.

     Section 4.6 Commission Documents, Financial Statements .

          (a) The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and since December 31, 2008, the Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by it with the Commission pursuant to the reporting requirements of the Exchange Act, including material filed pursuant to Section 13(a) or 15(d) of the Exchange Act (all of the foregoing, and, for the purpose of determining the Company’s compliance with Section 7.1 hereof, any such reports, schedules, forms, statements and other documents filed with the Commission and publicly available after the date hereof but on or prior to the applicable Condition Satisfaction Date, including filings incorporated by reference, being referred to herein as the “ Commission Documents ”). Except as previously disclosed to the Investor in writing, since December 31, 2008 the Company has maintained all requirements for the continued listing or quotation of its Common Stock, and such Common Stock is currently listed or quoted on the NASDAQ Global Select Market. The Company has made available (including through the Commission’s EDGAR filing system) to the Investor true and complete copies of the Commission Documents filed with the Commission since December 31, 2008 and prior to the Closing Date. The Company has not provided to the Investor any information which, according to applicable law, rule or regulation, should have been disclosed publicly by the Company but which has not been so disclosed, other than with respect to the transactions contemplated by this Agreement. As of the date it was filed with the Commission, the Company’s Annual Report on Form 10-K for the year ended December 31, 2008 complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission promulgated thereunder then-applicable to such document, and, as of the date it was filed with the Commission, after giving effect to the information disclosed and incorporated by reference therein, to the Company’s Knowledge such Annual Report on Form 10-K did 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 light of the circumstances under which they were made, not misleading. As of their respective dates, to the Company’s Knowledge the financial statements, together with the related notes and schedules thereto, of the Company included in the Commission Documents filed with the Commission since December 31, 2008 complied as to form in all material respects with all then-applicable accounting requirements and the published rules and regulations of the Commission

or other then-applicable rules and regulations with respect thereto. Such financial statements, together with the related notes and schedules thereto, have been prepared in accordance with generally accepted accounting principles (“ GAAP ”) applied on a consistent basis during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements), and fairly present in all material respects the financial condition of the Company and its subsidiaries as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).

          (b) The Company has timely filed with the Commission and made available to the Investor via EDGAR or otherwise all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act of 2002 (“ SOXA ”)) with respect to all relevant Commission Documents. The Company is in compliance in all material respects with the provisions of SOXA applicable to it as of the date hereof. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act. As used in this Section 4.6(b), the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the Commission.

     Section 4.7 No Material Adverse Change . Except as disclosed in the Commission Documents, as previously disclosed to the Investor in the Disclosure Schedule or as disclosed in a publicly available press release of the Company, since June 30, 2009 no event or series of events has or have occurred that would, individually or in the aggregate, have a Material Adverse Effect on the Company.

     Section 4.8 No Undisclosed Liabilities . To the Company’s Knowledge, neither the Company nor any of its subsidiaries has any liabilities, obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that would be required to be disclosed on a balance sheet of the Company or any subsidiary (including the notes thereto) in conformity with GAAP and are not disclosed in the Commission Documents, other than those incurred in the ordinary course of the Company’s or its subsidiaries respective businesses since June 30, 2009 or which, individually or in the aggregate, do not or would not have a Material Adverse Effect on the Company.

     Section 4.9 No Undisclosed Events or Circumstances . Except as previously disclosed to the Investor in writing, to the Company’s Knowledge, no event or circumstance has occurred or exists with respect to the Company or its subsidiaries or their respective businesses, properties, operations or financial condition, which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or disclosed and which, individually or in the aggregate, would have a Material Adverse Effect on the Company.

     Section 4.10 Actions Pending . There is no action, suit, claim, investigation or proceeding pending or, to the Knowledge of the Company, threatened against the Company or any subsidiary which questions the validity of this Agreement or the transactions contemplated

hereby or any action taken or to be taken pursuant hereto or thereto. Except as set forth in the Commission Documents or in the Disclosure Schedule, there is no action, suit, claim, investigation or proceeding pending or, to the Knowledge of the Company, threatened, against or involving the Company, any subsidiary or any of their respective properties or assets, or to the Knowledge of the Company involving any officers or directors, in their capacity as officers or directors, of the Company or any of its subsidiaries, including, without limitation, any securities class action lawsuit or stockholder derivative lawsuit, that would be reasonably expected to have a Material Adverse Effect on the Company. Except as set forth in the Commission Documents or as previously disclosed to the Investor in writing, no judgment, order, writ, injunct