Neurocrine Biosciences, Inc.
As filed with the Securities and Exchange Commission on August 4, 2005
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
under
the Securities Act of 1933
NEUROCRINE BIOSCIENCES, INC.
(Exact name of Registrant as specified in its charter)
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| Delaware
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33-0525145 |
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| (State of incorporation)
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(I.R.S. Employer Identification No.) |
12790 El Camino Real
San Diego, California 92130
(Address, including zip code, of principal executive offices)
NEUROCRINE BIOSCIENCES, INC. EMPLOYMENT COMMENCEMENT NONSTATUTORY STOCK OPTION
WITH RICHARD RANIERI
NEUROCRINE BIOSCIENCES, INC. 2003 INCENTIVE STOCK PLAN,
AS AMENDED
(Full title of the plans)
GARY A. LYONS
President, Chief Executive Officer
and Director
12790 El Camino Real
San Diego, California 92130
(858) 617-7600
(Name, address, and telephone number, including area code, of agent for service)
Copies to:
Scott N. Wolfe, Esq.
Latham & Watkins LLP
12636 High Bluff Drive, Suite 300
San Diego, CA 92130
(858) 523-5400
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Maximum |
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Maximum |
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Title |
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Amount |
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Offering |
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Aggregate |
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Amount of |
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of Securities to |
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to be |
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Price |
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Offering |
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Registration |
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be Registered |
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Registered(1) |
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Per Share |
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Price |
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Fee |
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Common Stock
$0.001 par value(2) |
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80,000 |
(3) |
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$42.40 |
(4) |
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$ 3,392,000 |
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$ 400 |
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Common Stock
$0.001 par value(2) |
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1,000,000 |
(5) |
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(6 |
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$44,526,765 |
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$5,241 |
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Total |
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1,080,000 |
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— |
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$47,918,765 |
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$5,641 |
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| (1) |
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Pursuant to Rule 416(a), this Registration Statement shall also cover any additional
shares of the Registrant’s common stock that become issuable under either of the plans by
reason of any stock dividend, stock split, recapitalization or other similar transaction
effected without receipt of consideration that increases the number of the Registrant’s
outstanding shares of common stock. |
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Each share of common stock includes a right to purchase one one-thousandth of a share of
Series A Participating preferred stock, par value $0.001 per share. |
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| (3) |
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Represents 80,000 shares of common stock reserved for issuance upon the exercise of
outstanding options granted under the Neurocrine Biosciences, Inc. Employment Commencement
Nonstatutory Stock Option With Richard Ranieri. |
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| (4) |
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This estimate is made pursuant to Rule 457(h) solely for purposes of calculating the
registration fee, and is determined based on the exercise price of $42.40 per share. |
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| (5) |
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Represents 1,000,000 additional shares of common stock available for issuance under the
Neurocrine Biosciences, Inc. 2003 Incentive Stock Plan, as Amended (the “2003 Plan”). The
board of directors and stockholders of the registrant have approved the increase in the number
of shares of common stock available for issuance under the 2003 Plan from 2,300,000 to
3,300,000 shares. The offer and sale of 2,287,500 shares of common stock under the 2003 Plan,
which may previously have been or may in the future be issued upon exercise of options under
the 2003 Plan, were previously registered on Form S-8 Registration Statement Nos. 333-118773
and 333-105907. The remaining 12,500 shares of common stock reserved for issuance under the
2003 Plan were granted to individuals as restricted stock grants and are not covered by this
registration statement or Form S-8 Registration Statement Nos. 333-118773 and 333-105907. |
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This estimate is made pursuant to Rule 457(h) solely for purposes of calculating the
registration fee, and is determined according to the following offering price information: of
the 1,000,000 shares of common stock reserved for issuance under the 2003 Plan being
registered hereunder, (i) 254,800 shares of common stock are subject to outstanding options
with an exercise price of $37.37 per share, (ii) 5,900 shares of common stock are subject to
outstanding options with an exercise price of $37.68 per share, (iii) 100,000 shares of common
stock are subject to outstanding options with an exercise price of $37.12 per share, (iv)
101,714 shares of common stock are subject to outstanding options with an exercise price of
$41.92 per share, and (v) 537,586 shares of common stock are reserved for issuance upon
exercise of options to be granted in the future. Pursuant to Rule 457(h), for all shares of
common stock being registered hereunder with an exercise price which cannot be presently
determined (537,586), the Proposed Maximum Offering Price Per Share is $49.865 per share,
which is the average of the high and low sales prices of the Registrant’s common stock as
reported on the Nasdaq National Market on August 1, 2005. |
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10 (a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission (the “SEC”) by
Neurocrine Biosciences, Inc. (the “Company”), are incorporated by reference in this Registration
Statement.
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(a) |
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The Company’s Annual Report on Form 10-K for the year ended December
31, 2004, filed February 16, 2005; |
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(b) |
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The Company’s Quarterly Reports on Form 10-Q for the three months ended
March 31, 2005, filed May 4, 2005, and for the three months ended June 30, 2005,
filed August 4, 2005; |
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(c) |
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The Company’s Current Reports on Form 8-K filed January 12, 2005,
February 9, 2005, February 17, 2005, April 15, 2005, April 18, 2005, April 27,
2005, May 26, 2005, May 27, 2005, June 14, 2005, June 24, 2005 and July 27, 2005; |
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(d) |
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The Company’s Amended Current Report on Form 8-K/A filed July 27, 2005;
and |
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(e) |
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The description of the Company’s Common Stock contained
in the Registration Statement on Form 8-A filed on April 3, 1996. |
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date of this
Registration Statement and prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then remaining unsold,
are incorporated by reference in this Registration Statement and are a part hereof from the date of
filing such documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law generally allows the Company to indemnify
directors and officers for all expenses, judgments, fines and amounts in settlement actually paid
and reasonably incurred in connection with any proceedings so long as such party acted in good
faith and in a manner reasonably believed to be in or not opposed to the Company’s best interests
and, with respect to any criminal proceedings, if such party had no reasonable cause to believe his
or her conduct to be unlawful. Indemnification may only be made by the Company if the applicable
standard of conduct set forth in Section 145 has been met by the indemnified party upon a
determination made (i) by the Board of Directors by a majority vote of the directors who are not
parties to such proceedings, even though less than a quorum, (ii) if there are no such directors,
or if such directors so direct, by independent legal counsel in a written opinion or (iii) by the
stockholders.
Article VII of the Company’s Certificate of Incorporation and Article VI, Sections 6.1, 6.2
and 6.3 of the Company’s Bylaws provide for indemnification of its directors and officers, and
permit indemnification of employees and other agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, the Company has entered into indemnification
agreements with its officers and directors.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of exhibits filed as part of this Registration Statement, which are
incorporated herein:
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4.1(1)
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Form of Common Stock Certificate |
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4.2(2)
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Neurocrine Biosciences, Inc. Employment Commencement Nonstatutory
Stock Option With Richard Ranieri |
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4.3*
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Neurocrine Biosciences, Inc. 2003 Incentive Stock Plan, as
amended, and Form of Stock Option Agreement |
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5.1*
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Opinion of Latham & Watkins LLP |
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23.1*
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Consent of Ernst & Young LLP, Independent Registered Public
Accounting Firm |
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23.2*
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Consent of Latham & Watkins LLP (contained in Exhibit 5.1) |
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24.1*
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Power of Attorney (included in the signature page of this
Registration Statement) |
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Filed herewith. |
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| (1) |
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Incorporated by reference to the Company’s Registration Statement on Form S-1 filed on
April 3, 1996, as amended (File No. 333-03172). |
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| (2) |
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Incorporated by reference to the Company’s Current Report on Form 8-K filed June 24,
2005. |
Page 4
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was registered)
and any deviation from the low or high and 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
20 percent change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any material
change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the SEC by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act 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.
(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 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act 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 Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities Act of 1933 and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, State of California, on this 4th day of August 2005.
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NEUROCRINE BIOSCIENCES, INC. |
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By:
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/s/ Gary A. Lyons |
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Gary A. Lyons |
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President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose signature appears below
constitutes and appoints, jointly and severally, Gary A. Lyons and Paul W. Hawran his or her
attorneys-in-fact, each with the power of substitution, for him or her in any and all capacities,
to sign any amendments to this Registration Statement on Form S-8 (including post-effective
amendments), and to file the same, with all exhibits thereto, and other documents in connection
therewith, with the SEC, hereby ratifying and confirming all that each of said attorneys-in-fact,
or his substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities and on the dates indicated.
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Title |
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/s/ Gary A. Lyons
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President, Chief Executive Officer and
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August 4, 2005 |
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Gary A. Lyons |
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Director (Principal Executive Officer) |
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Executive Vice President and Chief
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August 4, 2005 |
/s/ Paul W. Hawran
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Financial Officer (Principal Financing |
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and Accounting Officer) |
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/s/ Joseph A. Mollica, Ph.D.
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Chairman of the Board of Directors
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August 4, 2005 |
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Joseph A. Mollica, Ph.D. |
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/s/ Corinne H. Lyle
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Director
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August 4, 2005 |
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Corinne H. Lyle |
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/s/ Richard F. Pops
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Director
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August 4, 2005 |
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Richard F. Pops |
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/s/ Stephen A. Sherwin, M.D.
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Director
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August 4, 2005 |
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Stephen A. Sherwin, M.D. |
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/s/ Wylie W. Vale. Ph.D.
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Director
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August 4, 2005 |
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Wylie W. Vale. Ph.D. |
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Page 6
INDEX TO EXHIBITS
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| Exhibit |
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Document |
4.1(1)
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Form of Common Stock Certificate |
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4.2(2)
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Neurocrine Biosciences, Inc. Employment Commencement Nonstatutory
Stock Option With Richard Ranieri |
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4.3*
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Neurocrine Biosciences, Inc. 2003 Incentive Stock Plan, as
amended, and Form of Stock Option Agreement |
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5.1*
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Opinion of Latham & Watkins LLP |
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23.1*
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Consent of Ernst & Young LLP, Independent Registered Public
Accounting Firm |
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23.2*
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Consent of Latham & Watkins LLP (contained in Exhibit 5.1) |
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24.1*
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Power of Attorney (included in the signature page of this
Registration Statement) |
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Filed herewith. |
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| (1) |
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Incorporated by reference to the Company’s Registration Statement on Form S-1
filed on April 3, 1996, as amended (File No. 333-03172). |
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| (2) |
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Incorporated by reference to the Company’s Current Report on Form 8-K filed
June 24, 2005. |
Page 7