Exhibit
10.2


 


EXECUTION
COPY


 


REGISTRATION RIGHTS AGREEMENT


 


This Registration Rights
Agreement (this “Agreement”) is
made and entered into as of December 19, 2008, by and among Helicos
BioSciences Corporation, a Delaware corporation (the “Company”), and the several purchasers
signatory hereto (each a “Purchaser”
and collectively, the “Purchasers”).


 


This Agreement is made
pursuant to the Securities Purchase Agreement, dated as of the date hereof
between the Company and each Purchaser (the “Purchase
Agreement”).


 


NOW, THEREFORE, IN
CONSIDERATION of the mutual covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company and each of the Purchasers agree as follows:


 


1.             Definitions.  Capitalized terms used and not
otherwise defined herein that are defined in the Purchase Agreement shall have
the meanings given such terms in the Purchase Agreement.  As used in this Agreement, the following
terms shall have the following meanings:


 


“Advice” shall have the meaning set forth in Section 6(c).


 


“Affiliate” means, with respect to any person, any other
person which directly or indirectly controls, is controlled by, or is under
common control with, such person.


 


“Agreement” shall have the meaning set forth in the Preamble.


 


“Business Day” means a day, other than a Saturday or Sunday,
on which banks in New York City are open for the general transaction of
business.


 


“Closing”
has the meaning set forth in the Purchase Agreement.


 


“Closing
Date” has the meaning set forth in the Purchase Agreement.


 


“Commission” means the Securities and Exchange Commission.


 


“Common Stock” means the common stock of the Company, par
value $0.001 per share, and any securities into which such shares of common
stock may hereinafter be reclassified.


 


“Company” shall have the meaning set forth in the Preamble.


 


“Effective Date” means the date that the Registration
Statement filed pursuant to Section 2(a) is first declared effective
by the Commission.


 


“Effectiveness Deadline” means, with respect to the Initial
Registration Statement or the New Registration Statement, the 120th
calendar day following the Closing Date (or, in the event the Commission
reviews and has written comments to the Initial Registration Statement or the
New Registration Statement, the 150th calendar day following the
Closing Date); provided, however,
that if the Company is notified by the Commission that the Initial Registration
Statement will not be reviewed or is no longer subject to further review and
comments, the Effectiveness Deadline as to such Registration Statement shall be
the fifth (5th) Trading Day following the date on which the Company
is so notified if 


 

















 


such date precedes the dates
otherwise required above; provided, further,
that if the Effectiveness Deadline falls on a Saturday, Sunday or other day
that the Commission is closed for business, the Effectiveness Deadline shall be
extended to the next Business Day on which the Commission is open for business.  With respect to any Remainder Registration
Statement, the 90th calendar day following the date that the Company
is eligible to file such Remainder Registration Statement pursuant to SEC
Guidance (or, in the event the Commission reviews and has written comments to
the Remainder Registration Statement, the 120th calendar day
following the date that the Company is eligible to file such Remainder
Registration Statement pursuant to SEC Guidance); provided, however, that if
the Company is notified by the Commission that the Remainder Registration
Statement will not be reviewed or is no longer subject to further review and
comments, the Effectiveness Deadline as to such Remainder Registration
Statement shall be the fifth (5th) Trading Day following the date on
which the Company is so notified if such date precedes the dates otherwise
required above; provided, further, that if the Effectiveness Deadline falls on
a Saturday, Sunday or other day that the Commission is closed for business, the
Effectiveness Deadline shall be extended to the next Business Day on which the
Commission is open for business.


 


“Effectiveness Period” shall have the meaning set forth in Section 2(b).


 


“Event” shall have the meaning set forth in Section 2(c).


 


“Event Date” shall have the meaning set forth in Section 2(c).


 


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


 


“Filing Deadline” means, with respect to the Initial
Registration Statement required to be filed pursuant to Section 2(a), the
30th calendar day following the Closing Date, provided, however, that if the Filing
Deadline falls on a Saturday, Sunday or other day that the Commission is closed
for business, the Filing Deadline shall be extended to the next business day on
which the Commission is open for business. 
With respect to any Remainder Registration Statement, the 30th
calendar day following the date that the Company is eligible to file such
Remainder Registration Statement pursuant to SEC Guidance, provided, however,
that if the Filing Deadline falls on a Saturday, Sunday or other day that the
Commission is closed for business, the Filing Deadline shall be extended to the
next business day on which the Commission is open for business.


 


“Holder” or “Holders”
means the holder or holders, as the case may be, from time to time of
Registrable Securities.


 


“Indemnified Party” shall have the meaning
set forth in Section 5(c).


 


“Indemnifying Party” shall have the meaning
set forth in Section 5(c).


 


“Initial Registration Statement” means the
initial Registration Statement filed pursuant to Section 2(a) of this
Agreement.


 


“Liquidated Damages” shall have the
meaning set forth in Section 2(c).


 


“Losses” shall have the meaning set forth in Section 5(a).


 


“New Registration Statement” shall have the
meaning set forth in Section 2(a).


 


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“Person” means an individual or corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or subdivision
thereof) or other entity of any kind.


 


“Principal Market” means the Trading Market on which the
Common Stock is primarily listed on and quoted for trading, which, as of the
Closing Date, shall be the NASDAQ Global Market.


 


“Proceeding” means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.


 


“Prospectus” means the prospectus included in a Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by a Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.


 


“Purchase Agreement” shall have the meaning set forth in the
Recitals.


 


“Purchaser” or “Purchasers”
shall have the meaning set forth in the Preamble.


 


“Registrable Securities” means all of (i) the Shares, (ii) the
Warrant Shares and (iii) any securities issued or issuable upon any stock
split, dividend or other distribution, recapitalization or similar event with
respect to the foregoing, provided,
that the Holder has completed and delivered to the Company a Selling
Stockholder Questionnaire; and provided,
further, that Shares and Warrant Shares shall cease to be
Registrable Securities upon the earliest to occur of the following: (A) a
sale pursuant to an effective Registration Statement or Rule 144 under the
Securities Act (in which case, only such security sold shall cease to be a
Registrable Security); or (B) becoming eligible for sale without the requirement for the Company to be in compliance with the current
public information required under Rule 144 and without volume or manner of
sale restrictions by Holders who are not Affiliates of the Company.


 


“Registration Statements” means any one or more registration
statements of the Company filed under the Securities Act that covers the resale
of any of the Registrable Securities pursuant to the provisions of this
Agreement (including without limitation the Initial Registration Statement, the
New Registration Statement and any Remainder Registration Statements),
amendments and supplements to such Registration Statements, including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such Registration
Statements.


 


“Remainder Registration Statement” shall have the meaning set
forth in Section 2(a).


 


“Rule 144” means Rule 144 promulgated by the
Commission pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.


 


“Rule 415” means Rule 415 promulgated by the
Commission pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.


 


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“Rule 424” means Rule 424 promulgated by the
Commission pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.


 


“SEC Guidance” means (i) any publicly-available written
or oral guidance, comments, requirements or requests of the Commission staff
and (ii) the Securities Act.


 


“Securities Act” means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.


 


“Selling
Stockholder Questionnaire” means a questionnaire in the form
attached as Annex B hereto, or such other form of questionnaire as may
reasonably be adopted by the Company from time to time.


 


“Shares” means the shares of Common Stock issued or issuable
to the Purchasers pursuant to the Purchase Agreement.


 


“Trading Day”
means (i) a day on which the Common Stock is listed or quoted and traded
on its Principal Market (other than the OTC Bulletin Board), or (ii) if
the Common Stock is not listed on a Trading Market (other than the OTC Bulletin
Board), a day on which the Common Stock is traded in the over-the-counter
market, as reported by the OTC Bulletin Board, or (iii) if the Common
Stock is not quoted on any Trading Market, a day on which the Common Stock is
quoted in the over-the-counter market as reported in the “pink sheets” by Pink
Sheets LLC (or any similar organization or agency succeeding to its functions
of reporting prices); provided,
that in the event that the Common Stock is not listed or quoted as set forth in
(i), (ii) and (iii) hereof, then Trading Day shall mean a Business
Day.


 


“Trading
Market” means whichever of the New York Stock Exchange, the American
Stock Exchange, the NASDAQ Global Select Market, the NASDAQ Global Market, the
NASDAQ Capital Market or OTC Bulletin Board on which the Common Stock is listed
or quoted for trading on the date in question.


 


“Warrants” means the Warrants issued pursuant to the Purchase
Agreement.


 


“Warrant Shares” means the shares of Common Stock issued or
issuable upon exercise of the Warrants.


 


2.             Registration.


 


(a)           On or prior to the Filing Deadline, the
Company shall prepare and file with the Commission a Registration Statement
covering the resale of all of the Registrable Securities not already covered by
an existing and effective Registration Statement for an offering to be made on
a continuous basis pursuant to Rule 415 or, if Rule 415 is not
available for offers and sales of the Registrable Securities, by such other
means of distribution of Registrable Securities as the Holders holding a
majority of the Registrable Securities may reasonably specify (the “Initial
Registration Statement”).  The
Initial Registration Statement shall be on Form S-3 (except if the Company
is then ineligible to register for resale of the Registrable Securities on Form S-3,
in which case such registration shall be on such other form available to
register for resale of the Registrable Securities as a secondary offering)
subject to the provisions of Section 2(f) and shall contain (except
if otherwise required pursuant to written comments received from the Commission
upon a review of such Registration Statement) the “Plan of Distribution”
section attached hereto as Annex A. 
Notwithstanding the registration obligations set forth in this Section 


 


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2, in the event the Commission informs the Company
that all of the Registrable Securities cannot, as a result of the application
of Rule 415, be registered for resale as a secondary offering on a single
registration statement, the Company agrees to promptly (i) inform each of
the Holders thereof and use its commercially reasonable efforts to file
amendments to the Initial Registration Statement as required by the Commission
and/or (ii) withdraw the Initial Registration Statement and file a new
registration statement (a “New Registration
Statement”), in either case covering the maximum number of
Registrable Securities permitted to be registered by the Commission, on Form S-3
or such other form available to register for resale the Registrable Securities
as a secondary offering; provided, however,
that prior to filing such amendment or New Registration Statement, the Company
shall be obligated to use its commercially reasonable efforts to advocate with
the Commission for the registration of all of the Registrable Securities in
accordance with the SEC Guidance, including without limitation, the Manual of
Publicly Available Telephone Interpretations D.29. Notwithstanding any other
provision of this Agreement and subject to the payment of liquidated damages in
Section 2(c), if any SEC Guidance sets forth a limitation of the number of
Registrable Securities permitted to be registered on a particular Registration
Statement as a secondary offering (and notwithstanding that the Company used
diligent efforts to advocate with the Commission for the registration of all or
a greater number of Registrable Securities), unless otherwise directed in
writing by a Holder as to its Registrable Securities, the number of Registrable
Securities to be registered on such Registration Statement will first be
reduced by Registrable Securities not acquired pursuant to the Purchase
Agreement (whether pursuant to registration rights or otherwise), second
by Registrable Securities represented by holders of Warrant Shares (applied, in
the case that some Warrant Shares may be registered, to the Holders on a pro
rata basis based on the total number of unregistered Warrant Shares held by
such Holders), and third
by Registrable Securities represented by Shares (applied, in the case that some
Shares may be registered, to the Holders on a pro rata basis based on the total
number of unregistered Shares held by such Holders.  The foregoing sentence is subject to a
determination by the Commission that certain Holders must be reduced first
based on the number of Shares held by such Holders.  Further, unless a Holder notifies the Company
otherwise, with respect to any Registrable Securities that are required to be
reduced, the Registrable Securities shall be reduced first by the Warrant
Shares and second by the Shares.  In the
event the Company is required to amend the Initial Registration Statement or
files a New Registration Statement pursuant to SEC Guidance, as the case may
be, under clauses (i) or (ii) above, the Company will use its
commercially reasonable efforts to file with the Commission, as promptly as
allowed by Commission or SEC Guidance provided to the Company or to registrants
of securities in general, one or more registration statements on Form S-3
or such other form available to register for resale those Registrable
Securities that were not registered for resale on the Initial Registration
Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”).


 


(b)           The Company shall use
its commercially reasonable efforts to cause each Registration Statement to be
declared effective by the Commission as soon as practicable but in no event
later than the Effectiveness Deadline for each the Initial Registration
Statement (and any New Registration Statement, as required) and any Remainder
Registration Statements.  The Company
shall use its commercially reasonable efforts to keep the Registration
Statements continuously effective under the Securities Act until the earlier of
(i) such time as all of the Registrable Securities covered by such
Registration Statement have been publicly sold by the Holders or (ii) the
date that all Registrable Securities covered by such Registration Statement may
be sold by non-affiliates without volume or manner of sale restrictions under Rule 144,
without the requirement for the Company to be in compliance with the current
public information requirements under Rule 144, as determined by counsel
to the Company pursuant to a written opinion letter to such effect, addressed
and reasonably acceptable to the Company’s transfer agent and the effected
Holders (the “Effectiveness Period”).  The Company shall request effectiveness of a
Registration Statement as of 5:00 p.m. New York City time on a Trading
Day.  The Company shall promptly notify
the Holders via facsimile or electronic mail of a “.pdf” format data file of
the effectiveness of a Registration Statement within one (1) business day
of the Effective Date. The 


 


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Company
shall, by 9:30 a.m. New York City time on the first Trading Day after the
Effective Date, file a final Prospectus with the Commission, as required by Rule 424(b).


 


(c)           If: (i) any Registration Statement is not filed with the
Commission on or prior to its respective Filing Deadline, including the Initial
Registration Statement, a New Registration Statement or a Remainder
Registration Statement, (ii) any Registration Statement, as applicable, is
not declared effective by the Commission (or otherwise does not become
effective) for any reason on or prior to the Effectiveness Deadline or (iii) after
its Effective Date, (A) such Registration Statement ceases for any reason
(including without limitation by reason of a stop order, or the Company’s
failure to update the Registration Statement), to remain continuously effective
as to all Registrable Securities for which it is required to be effective or (B) the
Holders are not permitted to utilize the Prospectus therein to resell such
Registrable Securities, in the case of (A) and (B), for more than an
aggregate of 30 Trading Days (which need not be consecutive) during any 12
month period (other than during an Allowable Grace Period (as defined in Section 2(e) of
this Agreement)), (iv) a Grace Period (as defined in Section 2(e) of
this Agreement) exceeds the length of an Allowable Grace Period, or (v) after
the date six months following the Closing Date, the Company fails to file with
the SEC any required reports under Section 13 or 15(d) of the 1934
Act such that it is not in compliance with Rule 144(c)(1) as a result
of which the Holders who are not affiliates are unable to sell Registrable
Securities without restriction under Rule 144 (or any successor thereto) (any such failure or breach in
clauses (i) through (v) above being referred to as an “Event,” and, for purposes of clauses (i), (ii) or (v),
the date on which such Event occurs, or for purposes of clause (iii), the date
on which such 30 Trading Day period is exceeded, or for purposes of clause (iv) the
date on which such Allowable Grace Period is exceeded, being referred to as an “Event Date”), then in addition to any
other rights the Holders may have hereunder or under applicable law, on each
such Event Date and on each monthly anniversary of each such Event Date (if the
applicable Event shall not have been cured by such date) until the applicable
Event is cured, the Company shall pay to each Holder an amount in cash, as
liquidated damages and not as a penalty (“Liquidated
Damages”), equal to 2.0% of the aggregate purchase price paid by
such Holder pursuant to the Purchase Agreement for any Registrable Securities
held by such Holder on the Event Date (which remedy shall be exclusive of any
other remedies available under this Agreement or under applicable law).  The parties agree that (1) notwithstanding anything to the
contrary herein or in the Purchase Agreement, no Liquidated Damages shall be
payable with respect to any period after the expiration of the Effectiveness
Period (it being understood that this sentence shall not relieve the Company of
any Liquidated Damages accruing prior to the Effectiveness Period), and in no
event shall the aggregate amount of
Liquidated Damages payable to a
Holder exceed, in the aggregate, twelve percent (12%) of the aggregate
purchase price paid by such Holder pursuant to the Purchase Agreement and (2) in no event shall the
Company be liable in any 30-day period for Liquidated Damages under this
Agreement in excess of 2.0% of the aggregate purchase price paid by the Holders
pursuant to the Purchase Agreement.  If
the Company fails to pay any Liquidated Damages pursuant to this Section 2(c) in
full within five (5) Business Days after the date payable, the Company
will pay interest thereon at a rate of 1.0% per month (or such lesser maximum
amount that is permitted to be paid by applicable law) to the Holder, accruing
daily from the date such Liquidated Damages are due until such amounts, plus
all such interest thereon, are paid in full. 
The Liquidated Damages pursuant to the terms hereof shall apply on a
daily pro-rata basis for any portion of a month prior to the cure of an Event,
except in the case of the first Event Date. 
The Company shall not be liable for Liquidated Damages under this
Agreement as to any Registrable Securities which are not permitted by the
Commission to be included in a Registration Statement due solely to SEC
Guidance from the time that it is determined that such Registrable Securities
are not permitted to be registered until such time as the provisions of this
Agreement as to the Remainder Registration Statements required to be filed
hereunder are triggered, in which case the provisions of this Section 2(c) shall
once again apply.  In such case, the
Liquidated Damages shall be calculated to only apply to the percentage of
Registrable Securities which are permitted in accordance with SEC Guidance to
be included in such Registration Statement.  The Company may require, from time
to time, information by a Holder that is necessary to complete the 


 


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Registration Statement in accordance with the
requirements of the Securities Act.  In
the event of the failure by such Holder to comply with the Company’s request
within fifteen (15) days from the date of such request, the Company shall be
permitted to exclude such Holder from a Registration Statement, without being
subject to the payment of Liquidated Damages to such Holder. At such time that
such Holder complies with the Company’s request the Company shall use its best
efforts to include such Holder on the Registration Statement.


 


(d)           Each Holder agrees to
furnish to the Company a completed Selling Stockholder Questionnaire not more
than five (5) Trading Days following the date of this Agreement. At
least ten (10) Trading Days prior to the first anticipated filing date of
a Registration Statement for any registration under this Agreement, the Company
will notify each Holder of the information the Company requires from that
Holder other than the information contained in the Selling Stockholder Questionnaire,
if any, which shall be completed and delivered to the Company promptly upon
request and, in any event, within three (3) Trading Days prior to the
applicable anticipated filing date.  Each Holder further agrees that it shall not
be entitled to be named as a selling securityholder in the Registration
Statement or use the Prospectus for offers and resales of Registrable
Securities at any time, unless such Holder has returned to the Company a
completed and signed Selling Stockholder Questionnaire and a response to any requests for further
information as described in the previous sentence. If
a Holder of Registrable Securities returns a Selling Stockholder Questionnaire
or a request for further information, in either case, after its respective
deadline, the Company shall use
its commercially reasonable efforts at the expense of the Holder who failed to
return the Selling Stockholder Questionnaire or to respond for further
information to take such actions as are required to name such Holder as a
selling security holder in the Registration Statement or any pre-effective or
post-effective amendment thereto and to include (to the extent not theretofore
included) in the Registration Statement the Registrable Securities identified
in such late Selling Stockholder Questionnaire or request for further
information. Each Holder acknowledges and agrees that the information in
the Selling Stockholder Questionnaire or
request for further information as described in this Section 2(d) will
be used by the Company in the preparation of the Registration Statement and
hereby consents to the inclusion of such information in the Registration
Statement.


 


(e)           Notwithstanding
anything to the contrary herein, at any time after the Registration Statement
has been declared effective by the Commission, the Company may delay the
disclosure of material non-public information concerning the Company if the
disclosure of such information at the time is not, in the good faith judgment
of the Company, in the best interests of the Company (a “Grace Period”); provided, however, the Company shall promptly (i) notify
the Holders in writing of the existence of material non-public information
giving rise to a Grace Period (provided that the Company shall not disclose the
content of such material non-public information to the Holders) or the need to
file a post-effective amendment, as applicable, and the date on which such
Grace Period will begin, and (ii) notify the Holders in writing of the
date on which the Grace Period ends; provided,
further, that no single Grace Period shall exceed thirty (30)
consecutive days, and during any three hundred sixty-five (365) day period, the
aggregate of all Grace Periods shall not exceed an aggregate of sixty (60) days
(each Grace Period complying with this provision being an “Allowable Grace Period”).   In the event the Company does disclose the
content of such material non-public information that is the subject of subpart (i) above
to any Holder without its consent, the Company shall make public disclosure of
such material nonpublic information within two (2) Trading Days of such
disclosure and no Grace Period shall apply. 
For purposes of determining the length of a Grace Period, the Grace
Period shall be deemed to begin on and include the date the Holders receive the
notice referred to in clause (i) above and shall end on and include the
later of the date the Holders receive the notice referred to in clause (ii) above
and the date referred to in such notice; provided,
however, that no Grace Period shall be longer than an Allowable
Grace Period.    Notwithstanding anything
to the contrary, the Company shall cause the Transfer Agent to deliver
unlegended Common Stock to a
transferee of a Holder in accordance with the terms of the Purchase Agreement
in connection with any sale of Registrable Securities with respect to which a
Holder 


 


7

















 


has
entered into a contract for sale prior to the Holder’s receipt of the notice of
a Grace Period and for which the Holder has not yet settled.


 


(f)            In the event that Form S-3
is not  available for the registration of the resale of Registrable
Securities hereunder, the Company shall (i) register the resale of the
Registrable Securities on another appropriate form reasonably acceptable to the
Holders and (ii) undertake to register the Registrable Securities on Form S-3
promptly after such form is available, provided
that the Company shall maintain the effectiveness of the Registration Statement
then in effect until such time as a Registration Statement on Form S-3
covering the Registrable Securities has been declared effective by the
Commission.


 


(g)           To the extent that a
Holder has the right, pursuant to the terms of an agreement entered into with
the Company prior to the date hereof, to cause the Company to register any
securities issued by the Company (the “Prior Registration Rights”),
such Holder hereby waives the Prior Registration Rights and acknowledges and
agrees that the only such registration rights such Holder has shall be set
forth in this Agreement.


 


3.             Registration Procedures.


 


In connection with the
Company’s registration obligations hereunder, the Company shall:


 


(a)           Not less than five (5) Trading Days
prior to the filing of a Registration Statement and not less than one (1) Trading
Day prior to the filing of any related Prospectus or any amendment or
supplement thereto (except for Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q and Current Reports on Form 8-K and any similar
or successor reports), the Company shall, furnish to the Holder copies of such Registration
Statement, Prospectus or amendment or supplement thereto, as proposed to be
filed, which documents will be subject to the review of such Holder (it being
acknowledged and agreed that if a Holder does not object to or comment on the
aforementioned documents within such five (5) Trading Day or one (1) Trading
Day period, as the case may be, then the Holder shall be deemed to have
consented to and approved the use of such documents).  The Company shall not file any
Registration Statement or amendment or supplement thereto in a form to which a
Holder reasonably objects in good faith, provided that, the Company is notified
of such objection in writing within the five (5) Trading Day or one (1) Trading
Day period described above, as applicable.


 


(b)           (i)  Prepare and file with the
Commission such amendments (including post-effective amendments) and
supplements, to each Registration Statement and the Prospectus used in
connection therewith as may be necessary to keep such Registration Statement
continuously effective as to the applicable Registrable Securities for its
Effectiveness Period (except during an Allowable Grace Period); (ii) cause
the related Prospectus to be amended or supplemented by any required Prospectus
supplement (subject to the terms of this Agreement), and, as so supplemented or
amended, to be filed pursuant to Rule 424 (except during an Allowable
Grace Period); (iii) respond as promptly as reasonably practicable to any
comments received from the Commission with respect to each Registration
Statement or any amendment thereto and, as promptly as reasonably possible,
provide the Holders true and complete copies of all correspondence from and to
the Commission relating to such Registration Statement that pertains to the
Holders as “Selling Stockholders” but not any comments that would result in the
disclosure to the Holders of material and non-public information concerning the
Company; and (iv) comply with the provisions of the Securities Act and the
Exchange Act with respect to the disposition of all Registrable Securities
covered by a Registration Statement until such time as all of such Registrable
Securities shall have been disposed of (subject to the terms of this Agreement)
in accordance with the intended methods of disposition by the Holders thereof
as set forth in such Registration Statement as so amended or in such Prospectus
as so supplemented; provided, however,
that each Purchaser shall be responsible for the 


 


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delivery of the Prospectus to the Persons to whom
such Purchaser sells any of the Shares or the Warrant Shares (including in
accordance with Rule 172 under the Securities Act), and each Purchaser
agrees to dispose of Registrable Securities in compliance with the plan of
distribution described in the Registration Statement and otherwise in
compliance with applicable federal and state securities laws. In the case of
amendments and supplements to a Registration Statement which are required to be
filed pursuant to this Agreement (including pursuant to this Section 3(b))
by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K
or any analogous report under the Exchange Act, the Company shall have
incorporated such report by reference into such Registration Statement, if
applicable, or shall file such amendments or supplements with the Commission on
the same day on which the Exchange Act report which created the requirement for
the Company to amend or supplement such Registration Statement was filed.


 


(c)           Notify the Holders (which notice shall,
pursuant to clauses (iii) through (v) hereof, be accompanied by an
instruction to suspend the use of the Prospectus until the requisite changes
have been made) as promptly as reasonably practicable (and, in the case of (i)(A) below,
not less than two Trading Days prior to such filing, in the case of (iii) and
(iv) below, not more than one Trading Day after such issuance or receipt,
and in the case of (v) below, not more than one Trading Day after the
occurrence or existence of such development) and (if requested by any such
Person) confirm such notice in writing no later than one Trading Day following
the day (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to a Registration Statement is proposed to be filed; (B) when
the Commission notifies the Company whether there will be a “review” of such
Registration Statement and whenever the Commission comments in writing on any
Registration Statement (in which case the Company shall provide to each of the
Holders true and complete copies of all comments that pertain to the Holders as
a “Selling Stockholder” or to the “Plan of Distribution” and all written
responses thereto, but not information that the Company believes would
constitute material and non-public information); and (C) with respect to
each Registration Statement or any post-effective amendment, when the same has
become effective; (ii) of any request by the Commission or any other
Federal or state governmental authority for amendments or supplements to a
Registration Statement or Prospectus or for additional information that
pertains to the Holders as “Selling Stockholders” or the “Plan of Distribution”;
(iii) of the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the effectiveness of a
Registration Statement covering any or all of the Registrable Securities or the
initiation of any Proceedings for that purpose; (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale
in any jurisdiction, or the initiation or threatening of any Proceeding for
such purpose; and (v) of the occurrence of any event or passage of time
that makes the financial statements included in a Registration Statement
ineligible for inclusion therein or any statement made in such Registration
Statement or Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires any
revisions to such Registration Statement, Prospectus or other documents so
that, in the case of such Registration Statement or the Prospectus, as the case
may be, it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus, form of prospectus or
supplement thereto, in light of the circumstances under which they were made),
not misleading.


 


(d)           Use commercially reasonable efforts to avoid
the issuance of, or, if issued, obtain the withdrawal of (i) any order
suspending the effectiveness of a Registration Statement, or (ii) any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, as soon as practicable.


 


(e)           If requested by a
Holder, furnish to such Holder, without charge, at least one conformed copy of
each Registration Statement and each amendment thereto and all exhibits to the
extent 


 


9

















 


requested
by such Person (including those previously furnished or incorporated by
reference) promptly after the filing of such documents with the Commission; provided, that the Company shall have no
obligation to provide any document pursuant to this clause that is available on
the Commission’s EDGAR system.


 


(f)            Prior to any resale of
Registrable Securities by a Holder, use its commercially reasonable efforts to
register or qualify or cooperate with the selling Holders in connection with
the registration or qualification (or exemption from the registration or
qualification) of such Registrable Securities for the resale by the Holder
under the securities or Blue Sky laws of such jurisdictions within the United
States as any Holder reasonably requests in writing, to keep each registration
or qualification (or exemption therefrom) effective during the Effectiveness
Period and to do any and all other acts or things reasonably necessary to
enable the disposition in such jurisdictions of the Registrable Securities
covered by each Registration Statement; provided, that
the Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified, subject the Company to any
material tax in any such jurisdiction where it is not then so subject or file a
general consent to service of process in any such jurisdiction.


 


(g)           If requested by the Holders, cooperate with
the Holders to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be delivered to a transferee pursuant to
the Registration Statement, which certificates shall be free, to the extent permitted
by the Purchase Agreement and under law, of all restrictive legends, and to
enable such Registrable Securities to be in such denominations and registered
in such names as any such Holders may reasonably request.


 


(h)           Following the occurrence of any event
contemplated by Section 3(c)(iii)-(v), as promptly as reasonably
practicable (taking into account the Company’s good faith assessment of any
adverse consequences to the Company and its stockholders of the premature
disclosure of such event), prepare a supplement or amendment, including a
post-effective amendment, to the affected Registration Statements or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, no Registration Statement nor any Prospectus
will contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
(in the case of any Prospectus, form of prospectus or supplement thereto, in
light of the circumstances under which they were made), not misleading.


 


(i)            The Company may require each selling Holder
to furnish to the Company a certified statement as to (i) the number of
shares of Common Stock beneficially owned by such Holder and any Affiliate
thereof, (ii) any Financial Industry Regulatory Authority (“FINRA”) affiliations, (iii) any natural persons who
have the power to vote or dispose of the Common Stock and (iv) any other
information as may be requested by the Commission, FINRA or any state
securities commission. During any periods that the Company is unable to meet
its obligations hereunder with respect to the registration of Registrable
Securities because any Holder fails to furnish such information within five
Trading Days of the Company’s request, (i) any Liquidated Damages that are
accruing at such time as to such Holder shall only be tolled only with respect
to that Holder and only if the Liquidated Damages were directly caused by such
Holder failure to provide such information; and (ii) any Event that may
otherwise occur solely because of such delay shall be suspended as to such
Holder only, until such information is delivered to the Company.


 


(j)            Not permit
any securities other than Registrable Securities to be included on any
Registration Statement.


 


10
















 


4.             Registration Expenses.  All
fees and expenses incident to the Company’s performance of or compliance with
its obligations under this Agreement (excluding any underwriting discounts and
selling commissions and all legal fees and expenses of legal counsel for any
Holder) shall be borne by the Company whether or not any Registrable Securities
are sold pursuant to a Registration Statement. 
The fees and expenses referred to in the foregoing sentence shall
include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to
filings required to be made with any Trading Market on which the Common Stock
is then listed for trading, and (B) with respect to compliance with
applicable state securities or Blue Sky laws (including, without
limitation, fees and disbursements of counsel for the Company in connection
with Blue Sky qualifications or exemptions of the Registrable Securities and
determination of the eligibility of the Registrable Securities for investment
under the laws of such jurisdictions as requested by the Holders)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable
Securities and of printing prospectuses if the printing of prospectuses is
reasonably requested by the Holders of a majority of the Registrable Securities
included in the Registration Statement), (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Company,
(v) Securities Act liability insurance, if the Company so desires such
insurance, and (vi) fees and expenses of all other Persons retained by the
Company in connection with the consummation of the transactions contemplated by
this Agreement.  In addition, the Company
shall be responsible for all of its internal expenses incurred in connection
with the consummation of the transactions contemplated by this Agreement
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit and the fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange as required hereunder.  In no event shall the Company be responsible
for any underwriting, broker or similar fees or commissions of any Holder or,
except to the extent provided for in the Transaction Documents, any legal fees
or other costs of the Holders.


 


5.             Indemnification.


 


(a)           Indemnification by the Company.  The
Company shall, notwithstanding any termination of this Agreement, indemnify,
defend and hold harmless each Holder, the officers, directors, agents,
partners, members, managers, stockholders, Affiliates and employees of each of
them, each Person who controls any such Holder (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) and the officers,
directors, partners, members, managers, stockholders, agents and employees of
each such controlling Person, to the fullest extent permitted by applicable law,
from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of preparation and
investigation and reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, that arise out of
or are based upon any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, any Prospectus or any form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission
to state a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which they were made)
not misleading, except to the extent, but only to the extent, that (A) such
untrue statements, alleged untrue statements, omissions or alleged omissions
are based solely upon information regarding such Holder furnished in writing to
the Company by such Holder expressly for use therein, or to the extent that
such information relates to such Holder or such Holder’s proposed method of
distribution of Registrable Securities and was reviewed and approved by such
Holder expressly for use in the Registration Statement, such Prospectus or such
form of Prospectus or in any amendment or supplement thereto (it being
understood that each Holder has approved Annex A hereto for this
purpose), (B) in the case of an occurrence of an event of the type
specified in Section 3(c)(iii)-(v), related to the use by a Holder of an
outdated or defective Prospectus after the Company has notified such Holder in
writing that the Prospectus is outdated or defective and prior to the receipt
by such Holder of the Advice contemplated and defined in Section 6(c) below,
but only if and to the extent that following 


 


11

















 


the receipt of the Advice the misstatement or
omission giving rise to such Loss would have been corrected or (C) any
such Losses arise out of the Purchaser’s (or any other indemnified Person’s)
failure to send or give a copy of the Prospectus or supplement (as then amended
or supplemented), if required, to the Persons asserting an untrue statement or
alleged untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of Registrable
Securities to such Person if such statement or omission was corrected in such
Prospectus or supplement.  The Company
shall notify the Holders promptly of the institution, threat or assertion of
any Proceeding arising from or in connection with the transactions contemplated
by this Agreement of which the Company is aware.  Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of an Indemnified
Party (as defined in Section 5(c)) and shall survive the transfer of the
Registrable Securities by the Holders.


 


(b)           Indemnification by Holders. Each Holder shall, severally and not
jointly, indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person who controls the Company (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange
Act), and the directors, officers, agents or employees of such controlling
Persons, to the fullest extent permitted by applicable law, from and against
all Losses, as incurred, arising out of or are based upon any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
any Prospectus, or any form of prospectus, or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or relating to any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein (in the case of any Prospectus, or
any form of prospectus or supplement thereto, in light of the circumstances
under which they were made) not misleading (i) to the extent, but only to
the extent, that such untrue statements or omissions are based solely upon
information regarding such Holder furnished in writing to the Company by such
Holder expressly for use therein or (ii) to the extent, but only to the
extent, that such information relates to such Holder or such Holder’s proposed
method of distribution of Registrable Securities and was reviewed and approved
by such Holder expressly for use in a Registration Statement (it being
understood that the Holder has approved Annex A hereto for this
purpose), such Prospectus or such form of Prospectus or in any amendment or
supplement thereto or (iii) in the case of an occurrence of an event of
the type specified in Section 3(c)(iii)-(v), to the extent, but only to
the extent, related to the use by such Holder of an outdated or defective
Prospectus after the Company has notified such Holder in writing that the
Prospectus is outdated or defective and prior to the receipt by such Holder of
the Advice contemplated in Section 6(c). 
In no event shall the liability of any selling Holder hereunder be
greater in amount than the dollar amount of the net proceeds received by such
Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.


 


(c)           Conduct of Indemnification Proceedings. If any Proceeding shall be brought or
asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified
Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the
Indemnifying Party shall have the right to assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all reasonable fees and expenses incurred in
connection with defense thereof; provided,
that the failure of any Indemnified Party to give such notice shall not relieve
the Indemnifying Party of its obligations or liabilities pursuant to this
Agreement, except (and only) to the extent that it shall be finally determined
by a court of competent jurisdiction (which determination is not subject to
appeal or further review) that such failure shall have materially and adversely
prejudiced the Indemnifying Party.


 


An Indemnified Party shall
have the right to employ separate counsel in any such Proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or Parties unless:  (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; (2) the Indemnifying Party shall
have failed promptly to assume the 


 


12

















 


defense of such Proceeding
and to employ counsel reasonably satisfactory to such Indemnified Party in any
such Proceeding; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall have been advised by
counsel that a conflict of interest exists if the same counsel were to represent
such Indemnified Party and the Indemnifying Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that it elects to
employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the Indemnifying Party); provided, that the Indemnifying Party
shall not be liable for the fees and expenses of more than one separate firm of
attorneys at any time for all Indemnified Parties.  The Indemnifying Party shall not be liable
for any settlement of any such Proceeding effected without its written consent,
which consent shall not be unreasonably withheld, delayed or conditioned.  No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party
from all liability on claims that are the subject matter of such Proceeding.


 


Subject to the terms of this
Agreement, all fees and expenses of the Indemnified Party (including reasonable
fees and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this Section 5(c))
shall be paid to the Indemnified Party, as incurred, within twenty Trading Days
of written notice thereof to the Indemnifying Party; provided, that the Indemnified Party shall promptly
reimburse the Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is finally
judicially determined to not be entitled to indemnification hereunder).
The failure to deliver written notice to the Indemnifying Party within a
reasonable time of the commencement of any such action shall not relieve such
Indemnifying Party of any liability to the Indemnified Party under this Section 5,
except to the extent that the Indemnifying Party is materially and adversely
prejudiced in its ability to defend such action.


 


(d)           Contribution.  If a
claim for indemnification under Section 5(a) or 5(b) is
unavailable to an Indemnified Party or insufficient to hold an Indemnified
Party harmless for any Losses, then each Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions, statements or
omissions that resulted in such Losses as well as any other relevant equitable
considerations.  The relative fault of
such Indemnifying Party and Indemnified Party shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of
a material fact, has been taken or made by, or relates to information supplied
by, such Indemnifying Party or Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such action, statement or omission.  The
amount paid or payable by a party as a result of any Losses shall be deemed to
include, subject to the limitations set forth in this Agreement, any reasonable
attorneys’ or other reasonable fees or expenses incurred by such party in
connection with any Proceeding to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
this Section 5(d) was available to such party in accordance with its
terms.


 


The parties hereto agree
that it would not be just and equitable if contribution pursuant to this Section 5(d) were
determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the
immediately preceding paragraph. 
Notwithstanding the provisions of this Section 5(d), no Holder
shall be required to contribute, in the aggregate, any amount in excess of the
amount by which the net proceeds actually received by such Holder from the sale
of the Registrable Securities subject to the Proceeding exceeds the amount of
any 


 


13

















 


damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.


 


The indemnity and
contribution agreements contained in this Section 5 are in addition to any
liability that the Indemnifying Parties may have to the Indemnified Parties and
are not in diminution or limitation of the indemnification provisions under the
Purchase Agreement.


 


6.             Miscellaneous.


 


(a)           Remedies.  In the event of a breach by the
Company or by a Holder of any of their obligations under this Agreement, each
Holder or the Company, as the case may be, in addition to being entitled to
exercise all rights granted by law and under this Agreement, including recovery
of damages, will be entitled to specific performance of its rights under this
Agreement.  The Company and each Holder
agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.


 


(b)           Compliance.  Each Holder covenants and agrees
that it will comply with the prospectus delivery requirements of the Securities
Act as applicable to it (unless an exemption therefrom is available) in
connection with sales of Registrable Securities pursuant to the
Registration Statement and shall sell the Registrable Securities only in accordance
with a method of distribution described in the Registration Statement.


 


(c)           Discontinued
Disposition.  By its acquisition of
Registrable Securities, each Holder agrees that, upon receipt of a notice from
the Company of the occurrence of any event of the kind described in Section 3(c)(iii)-(v),
such Holder will forthwith discontinue disposition of such Registrable
Securities under a Registration Statement until it is advised in writing (the “Advice”) by the Company that the use of
the applicable Prospectus (as it may have been supplemented or amended) may be
resumed.    The Company may provide
appropriate stop orders to enforce the provisions of this paragraph.


 


(d)           Amendments and Waivers.  The
provisions of this Agreement, including the provisions of this sentence, may
not be amended, modified or supplemented, or waived unless the same shall be in
writing and signed by the Company and Holders holding a majority of the then
outstanding Registrable Securities, provided that any party may give a waiver as
to itself.  Notwithstanding the
foregoing,  a waiver or consent to depart
from the provisions hereof with respect to a matter that relates exclusively to
the rights of Holders and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of all of the Registrable
Securities to which such waiver or consent relates; provided, however,
that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence.


 


(e)           Notices.  Any and all notices or other communications
or deliveries required or permitted to be provided hereunder shall be delivered
as set forth in the Purchase Agreement.


 


(f)            Successors and Assigns.  This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties and shall inure to the benefit of each
Holder.  Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement. 
The 


 


14

















 


Company may not assign its rights (except by merger
or in connection with another entity acquiring all or substantially all of the
Company’s assets) or obligations hereunder without the prior written consent of
all the Holders of the then outstanding Registrable Securities.  Each Holder may assign its respective rights
hereunder in the manner and to the Persons as permitted under the Purchase
Agreement.


 


(g)           Execution and Counterparts.  This
Agreement may be executed in two or more counterparts, each of which when so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party,
it being understood that both parties need not sign the same counterpart.  In the event that any signature is delivered
by facsimile transmission or by e-mail delivery of a “.pdf” format data file,
such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or “.pdf” signature were the original thereof.


 


(h)           Governing Law.  All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined in accordance with the provisions of the
Purchase Agreement.


 


(i)            Cumulative Remedies.  The
remedies provided herein are cumulative and not exclusive of any other remedies
provided by law.


 


(j)            Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their good faith reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction.  It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be hereafter declared invalid, illegal, void or unenforceable.


 


(k)           Headings.  The headings in this Agreement are for
convenience only and shall not limit or otherwise affect  the meaning hereof.


 


(l)            Independent Nature of Purchasers’ Obligations
and Rights.  The obligations of each Purchaser under this
Agreement are several and not joint with the obligations of any other Purchaser
hereunder, and no Purchaser shall be responsible in any way for the performance
of the obligations of any other Purchaser hereunder.  The decision of each Purchaser to purchase
the Shares and Warrants pursuant to the Transaction Documents has been made
independently of any other Purchaser. Nothing contained herein or in any other
agreement or document delivered at any closing, and no action taken by any
Purchaser pursuant hereto or thereto, shall be deemed to constitute the
Purchasers as a partnership, an association, a joint venture or any other kind
of entity, or create a presumption that the Purchasers are in any way acting in
concert with respect to such obligations or the transactions contemplated by
this Agreement.  Each Purchaser
acknowledges that no other Purchaser has acted as agent for such Purchaser in
connection with making its investment hereunder and that no Purchaser will be acting
as agent of such Purchaser in connection with monitoring its investment in the
Shares and Warrants or enforcing its rights under the Transaction Documents.
Each Purchaser shall be entitled to protect and enforce its rights, including,
without limitation, the rights arising out of this Agreement, and it shall not
be necessary for any other Purchaser to be joined as an additional party in any
Proceeding for such purpose.  The Company
acknowledges that each of the Purchasers has been provided with the same
Registration Rights 


 


15

















 


Agreement for the purpose of closing a transaction
with multiple Purchasers and not because it was required or requested to do so
by any Purchaser.


 


16

















 


IN WITNESS WHEREOF, the
parties have executed this Registration Rights Agreement as of the date first
written above.


 


	
   

  	
  HELICOS BIOSCIENCES
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   Title:

  



 


 


[REMAINDER OF PAGE
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SIGNATURE PAGES OF HOLDERS TO FOLLOW]


 

















 


IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as of the date first written above.


 


 


	
   

  	
  NAME OF INVESTING ENTITY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AUTHORIZED SIGNATORY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  ADDRESS FOR NOTICE

  
	
   

  	
   

  
	
   

  	
  c/o:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Street:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  City/State/Zip:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Tel:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Fax:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Email:

  	
   

  
								



 
















 


Annex A


 


PLAN OF
DISTRIBUTION


 


We are registering the
shares of Common Stock issued to the selling stockholders and issuable upon
exercise of the warrants issued to the selling stockholders to permit the
resale of these shares of Common Stock by the holders of the shares of Common
Stock and warrants from time to time after the date of this prospectus.  We will not receive any of the proceeds from
the sale by the selling stockholders of the shares of Common Stock.  We will bear all fees and expenses incident
to our obligation to register the shares of Common Stock.


 


The selling stockholders may sell all or a portion of
the Common Stock beneficially
owned by them and offered hereby from time to time directly or through one or
more underwriters, broker-dealers or agents. 
If the Common Stock is
sold through underwriters or broker-dealers, the selling stockholders will be
responsible for underwriting discounts or commissions or agent’s
commissions.  The Common Stock may be sold on any national securities exchange or
quotation service on which the securities may be listed or quoted at the time
of sale, in the over-the-counter market or in transactions otherwise than on
these exchanges or systems or in the over-the-counter market and in one or more
transactions at fixed prices, at prevailing market prices at the time of the
sale, at varying prices determined at the time of sale, or at negotiated
prices. These sales may be effected in transactions, which may involve crosses
or block transactions.  The selling
stockholders may use any one or more of the following methods when selling
shares:


 


·                  ordinary
brokerage transactions and transactions in which the broker-dealer solicits
purchasers;


 


·                  block
trades in which the broker-dealer will attempt to sell the shares as agent but
may position and resell a portion of the block as principal to facilitate the
transaction;


 


·                  purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;


 


·                  an
exchange distribution in accordance with the rules of the applicable
exchange;


 


·                  privately
negotiated transactions;


 


·                  settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a part;


 


·                  broker-dealers
may agree with the selling stockholders to sell a specified number of such
shares at a stipulated price per share;


 


·                  through
the writing or settlement of options or other hedging transactions, whether
such options are listed on an options exchange or otherwise;


 


·                  a
combination of any such methods of sale; and


 


·                  any
other method permitted pursuant to applicable law.


 


The
selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act, as
permitted by that rule, or Section 4(1) under the Securities Act, if
available, rather than under this prospectus, provided that they meet the
criteria and conform to the requirements of those provisions.


 

















 


Broker-dealers engaged by
the selling stockholders may arrange for other broker-dealers to participate in
sales. If the selling stockholders effect such transactions by selling Common Stock to or through
underwriters, broker-dealers or agents, such underwriters, broker-dealers or
agents may receive commissions in the form of discounts, concessions or
commissions from the selling stockholders or commissions from purchasers of the
Common Stock for whom they may
act as agent or to whom they may sell as principal. Such commissions will be in
amounts to be negotiated, but, except as set forth in a supplement to this
Prospectus, in the case of an agency transaction will not be in excess of a
customary brokerage commission in compliance with NASD Rule 2440; and in
the case of a principal transaction a markup or markdown in compliance with NASD
IM-2440.


 


In connection with sales
of the Common Stock or
otherwise, the selling stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn engage in
short sales of the Common Stock in
the course of hedging in positions they assume. 
The selling stockholders may also sell Common Stock short and if such short sale shall take place after
the date that this Registration Statement is declared effective by the
Commission, the selling stockholders may deliver Common Stock covered by this prospectus to close out short
positions and to return borrowed shares in connection with such short
sales.  The selling stockholders may also
loan or pledge Common Stock to
broker-dealers that in turn may sell such shares, to the extent permitted by
applicable law. The selling stockholders may also enter into option or other
transactions with broker-dealers or other financial institutions or the
creation of one or more derivative securities which require the delivery to
such broker-dealer or other financial institution of shares offered by this
prospectus, which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended to reflect such
transaction). Notwithstanding
the foregoing, the selling stockholders have been advised that they may not use
shares registered on this registration statement to cover short sales of our
Common Stock made prior to the date the registration statement, of which this
prospectus forms a part, has been declared effective by the SEC.


 


The selling stockholders
may, from time to time, pledge or grant a security interest in some or all of
the Common Stock owned by them
and, if they default in the performance of their secured obligations, the
pledgees or secured parties may offer and sell the Common Stock from time to time pursuant to this prospectus or any
amendment to this prospectus under Rule 424(b)(3) or other applicable
provision of the Securities Act of 1933, as amended, amending, if necessary,
the list of selling stockholders to include the pledgee, transferee or other
successors in interest as selling stockholders under this prospectus.  The selling stockholders also may transfer
and donate the Common Stock in
other circumstances in which case the transferees, donees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of
this prospectus.


 


The selling stockholders and any broker-dealer or
agents participating in the distribution of the Common Stock may be deemed to be “underwriters” within the meaning
of Section 2(11) of the Securities Act in connection with such sales.  In such event, any commissions paid, or any
discounts or concessions allowed to, any such broker-dealer or agent and any profit
on the resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Selling Stockholders who are “underwriters”
within the meaning of Section 2(11) of the Securities Act will be subject
to the applicable prospectus delivery requirements of the Securities Act and
may be subject to certain statutory liabilities of, including but not limited
to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the
Securities Exchange Act of 1934, as amended, or the Exchange Act.


 


Each selling stockholder has informed the Company that
it is not a registered broker-dealer and does not have any written or oral
agreement or understanding, directly or indirectly, with any person to
distribute the Common Stock.  Upon the Company being notified in writing by a selling stockholder
that any material arrangement has been entered into with a broker-dealer for
the sale of Common Stock through a block trade, special offering, exchange
distribution or secondary distribution or a purchase by a broker or dealer, a
supplement to this prospectus will be filed, if required, pursuant to Rule 424(b) under
the Securities Act, 


 

















 


disclosing
(i) the name of each such selling stockholder and of the participating
broker-dealer(s), (ii) the number of shares involved, (iii) the price
at which such the Common Stock was sold, (iv) the commissions paid or
discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that
such broker-dealer(s) did not conduct any investigation to verify the
information set out or incorporated by reference in this prospectus, and (vi) other
facts material to the transaction.  In no
event shall any broker-dealer receive fees, commissions and markups, which, in
the aggregate, would exceed eight percent (8%).


 


Under the securities laws
of some states, the Common Stock may be sold in such states only through
registered or licensed brokers or dealers. 
In addition, in some states the Common
Stock may not be sold unless such shares have been registered or
qualified for sale in such state or an exemption from registration or
qualification is available and is complied with.


 


There can be no assurance
that any selling stockholder will sell any or all of the Common Stock registered pursuant to
the shelf registration statement, of which this prospectus forms a part.


 


Each selling stockholder
and any other person participating in such distribution will be subject to
applicable provisions of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder, including, without limitation, to
the extent applicable, Regulation M of the Exchange Act, which may limit the
timing of purchases and sales of any of the Common Stock by the selling stockholder and any other participating
person.  To the extent applicable,
Regulation M may also restrict the ability of any person engaged in the
distribution of the Common Stock to
engage in market-making activities with respect to the Common Stock.  All of the
foregoing may affect the marketability of the Common Stock and the ability of any person or entity to engage in
market-making activities with respect to the Common Stock.


 


We will pay all expenses
of the registration of the Common Stock
pursuant to the registration rights agreement, including, without
limitation, Securities and Exchange Commission filing fees and expenses of
compliance with state securities or “blue sky” laws; provided, however,
that each selling stockholder will pay all underwriting discounts and selling
commissions, if any and any related legal expenses incurred by it.  We will indemnify the selling stockholders
against certain liabilities, including some liabilities under the Securities
Act, in accordance with the registration rights agreement, or the selling stockholders
will be entitled to contribution.  We may
be indemnified by the selling stockholders against civil liabilities, including
liabilities under the Securities Act, that may arise from any written
information furnished to us by the selling stockholders specifically for use in
this prospectus, in accordance with the related registration rights agreements,
or we may be entitled to contribution.


 

















 


Annex
B


 


HELICOS BIOSCIENCES CORPORATION


 


SELLING STOCKHOLDER NOTICE AND QUESTIONNAIRE


 


The undersigned holder
of common stock, par value $0.001 per share, of Helicos
BioSciences Corporation, a Delaware corporation (the “Company”), issued
pursuant to a certain Securities Purchase Agreement by and among the Company
and the Purchasers named therein, dated as of December 19, 2008,
understands that the Company intends to file with the Securities and Exchange
Commission a registration statement on Form S-3 (the “Resale Registration Statement”) for the registration and the resale under Rule 415 of the
Securities Act of 1933, as amended (the “Securities
Act”), of the Registrable Securities in accordance with the terms of
a certain Registration Rights Agreement by and among the Company and the
Purchasers named therein, dated as of December 19, 2008 (the “Agreement”).  All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Agreement.


 


In order to sell or
otherwise dispose of any Registrable Securities pursuant to the Resale
Registration Statement, a holder of Registrable Securities generally will be
required to be named as a selling stockholder in the related prospectus or a
supplement thereto (as so supplemented, the “Prospectus”), deliver the Prospectus to purchasers of
Registrable Securities (including pursuant to Rule 172 under the
Securities Act) and be bound by the provisions of the Agreement (including
certain indemnification provisions, as described below).  Holders must complete and deliver this Notice
and Questionnaire in order to be named as selling stockholders in the Prospectus.  Holders of Registrable
Securities who do not complete, execute and return this Notice and
Questionnaire within five (5)Trading Days following the date of the Agreement (1) will
not be named as selling stockholders in the Resale Registration Statement or
the Prospectus and (2) may not use the Prospectus for resales of
Registrable Securities.


 


Certain legal
consequences arise from being named as a selling stockholder in the Resale
Registration Statement and the Prospectus. 
Holders of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not named
as a selling stockholder in the Resale Registration Statement and the
Prospectus.


 


NOTICE


 


The undersigned holder
(the “Selling Stockholder”)
of Registrable Securities hereby gives notice to the Company of its intention
to sell or otherwise dispose of Registrable Securities owned by it and listed
below in Item (3), unless otherwise specified in Item (3), pursuant to the
Resale Registration Statement.  The
undersigned, by signing and returning this Notice and Questionnaire,
understands and agrees that it will be bound by the terms and conditions of
this Notice and Questionnaire and the Agreement.


 


The undersigned hereby
provides the following information to the Company and represents and warrants
that such information is accurate and complete:


 


QUESTIONNAIRE


	
  1.

  	
   

  	
  Name.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Full Legal Name of Selling
  Stockholder:

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


	
   

  	
   

  	
  (b)

  	
   

  	
  Full Legal Name of
  Registered Holder (if not the same as (a) above) through which
  Registrable Securities Listed in Item 3 below are held:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Full Legal Name of Natural
  Control Person (which means a natural person who directly or indirectly alone
  or with others has power to vote or dispose of the securities covered by the
  questionnaire):

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


2. 
Address for Notices to Selling Stockholder:


 




	
   

  
	
   

  
	
   

  
	
  Telephone:

  	
   

  
	
  Fax:

  	
   

  
	
  Contact
  Person:

  	
   

  
	
  E-mail
  address of Contact Person:

  	
   

  
					






 


3. 
Beneficial Ownership of Registrable Securities Issuable Pursuant to the
Purchase Agreement:


 


	
   

  	
   

  	
  (a)

  	
   

  	
  Type and Number of
  Registrable Securities beneficially owned and issued pursuant to the
  Agreement:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  (b)

  	
   

  	
  Number of shares of Common Stock to be
  registered pursuant to this Notice for resale:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


4. 
Broker-Dealer Status:


 


	
   

  	
   

  	
  (a)

  	
   

  	
  Are you a broker-dealer?

  



 


Yes    o        No    o


 

















 


	
   

  	
   

  	
  (b)

  	
   

  	
  If “yes” to
  Section 4(a), did you receive your Registrable Securities as
  compensation for investment banking services to the Company?

  



 


Yes    o        No    o


 


Note:                   If no, the
Commission’s staff has indicated that you should be identified as an
underwriter in the Registration Statement.


 


	
   

  	
   

  	
  (c)

  	
   

  	
  Are you an affiliate of a
  broker-dealer?

  	
   

  	
   

  	
   

  	
   

  



 


Yes    o        No    o


 


Note:                   If yes, provide a narrative
explanation below:


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  (c)

  	
   

  	
  If you are an affiliate of
  a broker-dealer, do you certify that you bought the Registrable Securities in
  the ordinary course of business, and at the time of the purchase of the
  Registrable Securities to be resold, you had no agreements or understandings,
  directly or indirectly, with any person to distribute the Registrable
  Securities?

  



 


Yes    o        No    o


 


	
   

  	
   

  	
  Note:

  	
   

  	
  If no, the Commission’s
  staff has indicated that you should be identified as an underwriter in the
  Registration Statement.

  



 


5.  Beneficial Ownership of Other Securities of
the Company Owned by the Selling Stockholder.


 


Except as set forth below in this Item 5, the
undersigned is not the beneficial or registered owner of any securities of the
Company other than the Registrable Securities listed above in Item 3.


 


Type and amount of other securities beneficially owned:


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


6.  Relationships with the Company:


 


Except as set forth below, neither the undersigned
nor any of its affiliates, officers, directors or principal equity holders
(owners of 5% of more of the equity securities of the undersigned) has held any
position or office or has had any other material relationship with the Company
(or its predecessors or affiliates) during the past three years.


 


State any exceptions here:


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


7. 
Plan of Distribution:


 


The undersigned has reviewed the form of Plan of
Distribution attached as Annex A to the Registration Rights Agreement, and
hereby confirms that, except as set forth below, the information contained
therein regarding the undersigned and its plan of distribution is correct and
complete.


 


State any exceptions here:


 


***********


 


The undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof and prior to the
effective date of any applicable Resale Registration Statement. All notices hereunder and pursuant to the Agreement shall be made in
writing, by hand delivery, confirmed or facsimile transmission, first-class
mail or air courier guaranteeing overnight delivery at the address set forth
below.  In the absence of any such
notification, the Company shall be entitled to continue to rely on the accuracy
of the information in this Notice and Questionnaire.


 


By signing below, the
undersigned consents to the disclosure of the information contained herein in
its answers to Items (1) through (7) above and the inclusion of such
information in the Resale Registration Statement and the Prospectus.  The undersigned understands that such
information will be relied upon by the Company in connection with the
preparation or amendment of any such Registration Statement and the Prospectus.


 


By signing below, the undersigned acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M in connection with any
offering of Registrable Securities pursuant to the Resale Registration
Statement.  The undersigned also
acknowledges that it understands that the answers to this Questionnaire are
furnished for use in connection with Registration Statements filed pursuant to
the Registration Rights Agreement and any amendments or supplements thereto
filed with the Commission pursuant to the Securities Act.


 


The
undersigned hereby acknowledges and is advised of the following Interpretation
A.65 of the July 1997 SEC Manual of Publicly Available Telephone
Interpretations regarding short selling:


 


“An
Issuer filed a Form S-3 registration statement for a secondary offering of
common stock which is not yet effective. 
One of the selling stockholders wanted to do a short sale of common
stock “against the box” and cover the short sale with registered shares after
the effective date.  The issuer was
advised that the short sale could not be made before the registration statement
become effective, because the shares underlying the short sale are deemed to be
sold at the time such sale is made. 
There would, therefore, be a violation of Section 5 if the shares
were effectively sold prior to the effective date.”


 

















 


By
returning this Questionnaire, the undersigned will be deemed to be aware of the
foregoing interpretation.


 


I confirm that, to the
best of my knowledge and belief, the foregoing statements (including without
limitation the answers to this Questionnaire) are correct.


 


IN WITNESS WHEREOF the
undersigned, by authority duly given, has caused this Questionnaire to be
executed and delivered either in person or by its duly authorized agent.


 


	
  Dated:

  	
   

  	
   

  	
  Beneficial
  Owner:  

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: