Exhibit 10.1


 


EXECUTION COPY


 


SECURITIES
PURCHASE AGREEMENT


 


This Securities Purchase
Agreement (this “Agreement”) is
dated as of December 19, 2008, by and among Helicos BioSciences Corporation, a
Delaware corporation (the “Company”),
and the several purchasers identified on the signature pages hereto (each,
including its successors and assigns, a “Purchaser”
and collectively, the “Purchasers”).


 


RECITALS


 


A.            The Company and each Purchaser is executing and
delivering this Agreement in reliance upon the exemption from securities
registration afforded by Section 4(2) of the Securities Act of 1933, as amended
(the “Securities Act”), and Rule 506
of Regulation D (“Regulation D”)
as promulgated by the United States Securities and Exchange Commission (the “Commission”) under the Securities Act.


 


B.            Each Purchaser, severally and not jointly, wishes to
purchase, and the Company wishes to sell, upon the terms and conditions stated
in this Agreement, (i) that aggregate number of shares of common stock, par
value $0.001 per share (the “Common Stock”),
of the Company, set forth below such Purchaser’s name on the signature page of
this Agreement (which aggregate amount for all Purchasers together shall be
42,753,869 shares of Common Stock and shall be collectively referred to herein
as the “Shares”) and (ii) warrants, in substantially the form
attached hereto as Exhibit A (the “Warrants”),
to acquire up to that number of additional shares of Common Stock equal to
sixty percent (60.0%) of the number of Shares purchased by such Purchaser
(rounded up to the nearest whole share) (the shares of Common Stock issuable
upon exercise of or otherwise pursuant to the Warrants collectively are
referred to herein as the “Warrant Shares”).


 


C.            The Shares, the Warrants and the
Warrant Shares collectively are referred to herein as the “Securities”.


 


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 the Purchasers hereby agree as follows:


 


ARTICLE I

DEFINITIONS


 


1.1           Definitions. 
In addition to the terms defined elsewhere in this Agreement, for all purposes
of this Agreement, the following terms shall have the meanings indicated in
this Section 1.1:


 


“Action” means any action, suit, inquiry, notice of
violation, proceeding (including any partial proceeding such as a deposition)
or investigation pending or, to the Company’s Knowledge, threatened in writing
against the Company, any Subsidiary or any of their respective properties or
any officer, director or employee of the Company or any Subsidiary acting in
his or her capacity as an officer, director or employee before or by any
federal, state, county, local or foreign court, arbitrator, governmental or
administrative agency, regulatory authority, stock market, stock exchange or
trading facility.


 


“Affiliate” means, with respect to any Person, any other
Person that, directly or indirectly through one or more intermediaries,
Controls, is controlled by or is under common control with such Person, as such terms are used in and construed under
Rule 405 under the Securities Act.  With respect to a Purchaser,
any 


 

















 


investment
fund or managed account that is managed on a discretionary basis by the same
investment manager as such Purchaser will be deemed to be an Affiliate of such
Purchaser.


 


“Agreement” shall have the meaning ascribed to such term 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” means the closing of the purchase and sale of the
Shares and the Warrants pursuant to this Agreement.


 


“Closing Date” means the Trading Day when all of the
Transaction Documents have been executed and delivered by the applicable
parties thereto, and all of the conditions set forth in Sections 2.1, 2.2, 5.1
and 5.2 hereof are satisfied, or such other date as the parties may agree.


 


“Commission” has the meaning set forth in the Recitals.


 


“Common Stock” has the meaning set forth in the Recitals, and
also includes any securities into which the Common Stock may hereafter be
reclassified or changed.


 


“Company Counsel” means Goodwin Procter LLP.


 


“Company Deliverables” has the meaning set forth in Section 2.2(a).


 


“Company’s Knowledge” means with respect to any statement
made to the knowledge of the Company, that the statement is based upon the
actual knowledge of the executive officers of the Company having responsibility
for the matter or matters that are the subject of the statement.


 


“Control” (including the terms “controls”, “controlling”, “controlled
by” or “under common control with”) means the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract or
otherwise.


 


“Disclosure Materials” has the meaning set forth in Section 3.1(h).


 


“Environmental Laws” has the meaning set forth in Section 3.1(l).


 


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


 


“GAAP” means U.S. generally accepted accounting principles,
as applied by the Company.


 


“Indemnified Person” has the meaning set forth in Section 4.7(b).


 


“Intellectual Property” has the meaning set forth in Section 3.1(r).


 


“Lien” means any lien, charge, claim, encumbrance, security
interest, right of first refusal, preemptive right or other restrictions of any
kind.


 


“Material Adverse Effect” means any of (i) a material and adverse effect on the legality, validity
or enforceability of any Transaction Document, (ii) a material and adverse
effect on the results of operations, assets, business or financial condition of
the Company and the Subsidiaries, or (iii) any adverse impairment to the
Company’s ability to perform in any material respect on a timely basis its
obligations under any Transaction Document.


 


2

















 


“Material Contract” means
any contract of the Company that was filed or required to be filed as an
exhibit to the SEC Reports pursuant to Item 601(b)(4) or Item 601(b)(10) of
Regulation S-K.


 


“Material Permits” has the meaning set forth in Section 3.1(p).


 


“Outside Date” means the thirtieth day following the date of
this Agreement; provided that if such day is not a Business Day, the first day
following such day that is a Business Day.


 


“Person” means an
individual, corporation, partnership, limited liability company, trust,
business trust, association, joint stock company, joint venture, sole
proprietorship, unincorporated organization, governmental authority or any
other form of entity not specifically listed herein.


 


“Press
Release” has the meaning set forth in Section 4.6.


 


“Principal Trading Market” means the Trading Market on which
the Common Stock is primarily listed on and quoted for trading, which, as of
the date of this Agreement and 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.


 


“Purchase Price” means $0.435 per unit.


 


“Purchaser Deliverables” has the meaning set forth in Section
2.2(b).


 


“Purchaser Party” has the meaning set forth in Section 4.7(a).


 


“Registration
Rights Agreement” means the registration rights agreement dated the
date hereof and attached hereto as Exhibit D.


 


“Registration Statement” means a registration statement
covering the resale by the Purchasers of the Shares and Warrant Shares.


 


“Required Approvals” has the meaning set forth in Section 3.1(e).


 


“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.


 


“SEC Reports” has the meaning set forth in Section 3.1(h).


 


“Secretary’s Certificate” has the meaning set forth in Section
2.2(a)(v).


 


“Securities Act” means the Securities Act of 1933, as
amended.


 


“Short Sales” include, without limitation, all “short sales”
as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act,
whether or not against the box, and all types of direct and indirect stock
pledges, forward sale contracts, options, puts, calls, short sales, swaps, “put
equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and
similar arrangements (including on a total return basis), and sales and other
transactions through non-U.S. broker dealers or foreign regulated brokers.


 


“Subscription Amount” means with respect to each Purchaser,
the aggregate amount to be paid for the Shares and the related Warrants purchased
hereunder as indicated on such Purchaser’s signature page to this Agreement
next to the heading “Aggregate Purchase Price (Subscription Amount)”.


 


3

















 


“Subsidiary” means any entity in which the Company, directly
or indirectly, owns sufficient capital stock or holds a sufficient equity or
similar interest such that it is consolidated with the Company in the financial
statements of the Company.


 


“Trading Affiliate(s)” has the meaning set forth in Section 3.2(h).


 


“Trading Day” means (i) a day on which the Common Stock is
listed or quoted and traded on its Principal Trading 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 the OTC Bulletin Board on
which the Common Stock is listed or quoted for trading on the date in question.


 


“Transaction Documents” means this Agreement, the schedules
and exhibits attached hereto, the Warrants, the Registration Rights Agreement
and any other documents or agreements executed in connection with the
transactions contemplated hereunder.


 


“Transfer Agent” means Computershare Shareholder Services, Inc.,
or any successor transfer agent for the Company.


 


“Vision”
means Vision Opportunity Master Fund, Ltd.


 


ARTICLE II

PURCHASE AND SALE


 


2.1           Closing.


 


(a)           Amount.  Subject to the terms and conditions
set forth in this Agreement, at the Closing the Company shall issue and sell to
each Purchaser, and each Purchaser shall, severally and not jointly, purchase
from the Company, such number of Shares equal to the quotient resulting from
dividing (i) the Subscription Amount for such Purchaser by (ii) the Purchase
Price, rounded up to the nearest whole Share.  In addition, each Purchaser
shall receive a Warrant to purchase a number of Warrant Shares equal to sixty
percent (60.0%) of the number of Shares, rounded up to the nearest whole
Warrant Share, purchased by such Purchaser, as indicated below such Purchaser’s
name on the signature page to this Agreement. The Warrants shall have an
exercise price equal to $0.45 per Warrant Share, subject to applicable
adjustments.


 


(b)           Closing.  The Closing of the purchase and sale
of the Shares and Warrants shall take place at the offices of Goodwin Procter
LLP, Exchange Place, 53 State Street, Boston, Massachusetts, on the Closing
Date or at such other locations or remotely by facsimile transmission or other
electronic means as the parties may mutually agree.


 


(c)           Form of Payment.  Except as may otherwise be
agreed to among the Company and one or more of the Purchasers, on or prior to
the Business Day immediately prior to the Closing Date, each Purchaser shall
wire its Subscription Amount, in United States dollars and in immediately
available funds, to a non-interest bearing escrow account established by the
Company as set forth on Exhibit C hereto.  On the Closing Date, the
Company shall irrevocably instruct the Transfer Agent to deliver to each
Purchaser one or more stock certificates, free and clear of all restrictive and
other legends (except as expressly provided in


 


4





















 


Section 4.1(b) hereof), evidencing the number
of Shares such Purchaser is purchasing as is set forth on such Purchaser’s signature page to this Agreement next to the heading
“Number of Shares to be Acquired”, within three (3) Business Days after
the Closing.


 


2.2           Closing
Deliveries.


 


(a)           On or prior to the Closing, the Company shall issue,
deliver or cause to be delivered to each Purchaser the following (the “Company Deliverables”):


 


(i)            this Agreement,
duly executed by the Company;


 


(ii)           facsimile copies of
one or more stock certificates, free and clear of all restrictive and other
legends (except as provided in Section 4.1(b) hereof), evidencing the Shares
subscribed for by Purchaser hereunder, registered in the name of such Purchaser
as set forth on the Stock Certificate Questionnaire included as Exhibit B-2
hereto (the “Stock Certificates”),
with the original Stock Certificates sent to the Purchasers within three (3) Business
Days of Closing;


 


(iii)          a Warrant, executed by the Company and
registered in the name of such Purchaser as set forth on the Stock Certificate
Questionnaire included as Exhibit B-2 hereto, pursuant to which such
Purchaser shall have the right to acquire such number of Warrant Shares equal
to sixty percent (60.0%) of the number of Shares issuable to such Purchaser,
rounded up to the nearest whole share, on the terms set forth therein;


 


(iv)          a legal opinion of
Company Counsel, dated as of the Closing Date, executed by such counsel and
addressed to the Purchasers;


 


(v)           a certificate of the
Secretary of the Company (the “Secretary’s
Certificate”), dated as of the Closing Date, (a) certifying the
resolutions adopted by the Board of Directors of the Company or a duly authorized
committee thereof approving the transactions contemplated by this Agreement and
the other Transaction Documents and the issuance of the Securities, (b) certifying
the current versions of the certificate or articles of incorporation, as
amended, and by-laws of the Company and (c) certifying as to the signatures and
authority of persons signing the Transaction Documents and related documents on
behalf of the Company;


 


(vi)          the Compliance
Certificate referred to in Section 5.1(g);


 


(vii)         a certificate
evidencing the formation and good standing of the Company in its jurisdiction
of formation issued by the Secretary of State (or comparable office) of such
jurisdiction, as of a date within five (5) Business Days of the Closing Date;


 


(viii)        a certificate
evidencing the Company’s qualification as a foreign corporation and good
standing issued by the Commonwealth of Massachusetts, as of a date within ten (10)
Business Days of the Closing Date;


 


(ix)           a certified copy of the Certificate of
Incorporation, as certified by the Secretary of State of the State of Delaware,
as of a date within ten (10) Business Days of the Closing Date; and


 


(x)            a fully executed Registration Rights
Agreement.


 


(b)           On or prior to the Closing, each Purchaser shall deliver
or cause to be delivered to the Company the following (the “Purchaser Deliverables”):


 


(i)            this Agreement,
duly executed by such Purchaser;


 


5

















 


(ii)           its Subscription
Amount, in United States dollars and in immediately available funds, in the
amount set forth as the “Purchase Price” indicated below such Purchaser’s name
on the applicable signature page hereto under the heading “Aggregate Purchase
Price (Subscription Amount)” by wire transfer to the escrow account set forth
on Exhibit C attached hereto; and


 


(iii)          a fully completed
and duly executed Accredited Investor Questionnaire, reasonably satisfactory to
the Company, and Stock Certificate Questionnaire in the forms attached hereto
as Exhibits B-1 and B-2 , respectively.


 


ARTICLE III

REPRESENTATIONS AND WARRANTIES


 


3.1           Representations
and Warranties of the Company.  The Company hereby represents and
warrants as of the date hereof and the Closing Date (except for the
representations and warranties that speak as of a specific date, which shall be
made as of such date), to each of the Purchasers that the following
representations and warranties are true and complete, except as set forth in
the Schedules delivered herewith or disclosed in the SEC Reports.  The
Schedules shall be arranged in sections corresponding to the lettered
subsections contained in this Section 3.1, and the disclosures in any
subsection of the schedules shall qualify other subsections in this Section 3.1
to the extent it is reasonably apparent from a reading of the disclosure that
such disclosure is applicable to such other subsections.


 


(a)           Subsidiaries.  The Company has no direct or
indirect Subsidiaries other than those listed in Schedule 3.1(a) hereto. 
Except as disclosed in Schedule 3.1(a) hereto, the Company owns,
directly or indirectly, all of the capital stock or comparable equity interests
of each Subsidiary free and clear of any and all Liens which would reasonably
be expected to have a Material Adverse Effect, and all the issued and outstanding
shares of capital stock or comparable equity interest of each Subsidiary are
validly issued and are fully paid, non-assessable and free of preemptive and
similar rights to subscribe for or purchase securities.


 


(b)           Organization and Qualification.  The Company
and each of its Subsidiaries is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the
requisite corporate power and authority to own or lease and use its properties
and assets and to carry on its business as currently conducted.  Neither
the Company nor any Subsidiary is in violation of any of the provisions of its
respective certificate or articles of incorporation, bylaws or other
organizational or charter documents.  The Company and each of its
Subsidiaries is duly qualified to conduct business and is in good standing as a
foreign corporation or other entity in each jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as
the case may be, would not have a Material Adverse Effect.


 


(c)           Authorization; Enforcement; Validity.  The Company has the requisite corporate power
and authority to enter into and to consummate the transactions contemplated by
each of the Transaction Documents to which it is a party and otherwise to carry
out its obligations hereunder and thereunder.  The Company’s execution and
delivery of each of the Transaction Documents to which it is a party and the
consummation by it of the transactions contemplated hereby and thereby
(including, but not limited to, the sale and delivery of the Shares and the
Warrants and the reservation for issuance and the  subsequent issuance of the Warrant Shares
upon exercise of the Warrants) have been duly authorized by all necessary
corporate action on the part of the Company, and no further corporate action is
required by the Company, its Board of Directors or its stockholders in
connection therewith other than in connection with the Required Approvals. 
Each of the Transaction Documents to which it is a party has been (or upon
delivery will have been) duly executed by the Company and is, or when delivered
in accordance with the terms hereof, will constitute the legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except (i) as such enforceability may be limited by applicable


 


6

















 


bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally the enforcement of, creditors’ rights and remedies
or by other equitable principles of general application, (ii) as limited by
laws relating to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.


 


(d)           No Conflicts.  The execution, delivery and performance by the Company of the Transaction
Documents to which it is a party and the consummation by the Company of the
transactions contemplated hereby or thereby (including, without limitation, the
issuance of the Shares and Warrants and the reservation for issuance and
issuance of the Warrant Shares) do not and will not (i) conflict with or
violate any provisions of the Company’s or any Subsidiary’s certificate or
articles of incorporation, bylaws or otherwise result in a violation of the
organizational documents of the Company, (ii) conflict with, or constitute a
default (or an event that with notice or lapse of time or both would result in
a default) under, result in the creation of any Lien upon any of the properties
or assets of the Company or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time
or both) of, any Material Contract, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company is subject (including federal and state
securities laws and regulations and the rules and regulations, assuming the
correctness of the representations and warranties made by the Purchasers
herein, of any self-regulatory organization to which the Company or its
securities are subject, including all applicable Trading Markets), or by which
any property or asset of the Company is bound or affected, except in the case
of clauses (ii) and (iii) such as would not, individually or in the aggregate,
have a Material Adverse Effect.


 


(e)           Filings, Consents and Approvals.  Neither the
Company nor any of its Subsidiaries is required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution, delivery
and performance by the Company of the Transaction Documents (including, without limitation, the issuance
of the Securities), other than (i) the filing with the Commission of one
or more Registration Statements, (ii) filings required by applicable state securities
laws, (iii) the filing of a Notice of Sale of Securities on Form D with the
Commission under Regulation D of the Securities Act, (iv) the filing of any
requisite notices and/or application(s) to the Principal Trading Market for the
issuance and sale of the Common Stock and the Warrants and the listing of the
Common Stock for trading or quotation, as the case may be, thereon in the time
and manner required thereby, (v) the filings required in accordance with Section
4.6 of this Agreement and (vi) those that have been made or obtained prior to
the date of this Agreement (collectively, the “Required
Approvals”).


 


(f)            Issuance of the Securities.  The Shares have
been duly authorized and, when issued and paid for in accordance with the terms
of the Transaction Documents, will be duly and validly issued, fully paid and
nonassessable and free and clear of all Liens, other than restrictions on
transfer provided for in the Transaction Documents or imposed by applicable
securities laws, and shall not be subject to preemptive or similar rights. 
The Warrants have been duly authorized and, when issued and paid for in
accordance with the terms of the Transaction Documents, will be duly and
validly issued, free and clear of all Liens, other than restrictions on transfer
provided for in the Transaction Documents or imposed by applicable securities
laws, and shall not be subject to preemptive or similar rights of stockholders.
The Warrant Shares issuable upon exercise of the Warrants have been duly
authorized and, when issued and paid for in accordance with the terms of the
Transaction Documents and the Warrants will be duly and validly issued, fully
paid and nonassessable, free and clear of all Liens, other than restrictions on
transfer provided for in the Transaction Documents or imposed by applicable
securities laws, and shall not be subject to preemptive or similar rights of
stockholders.  Assuming the accuracy of the representations and warranties
of the Purchasers in this Agreement, the Shares and the Warrant Shares will be
issued in compliance with all applicable federal and state securities laws. 
As of the Closing Date, the Company shall have reserved from its duly
authorized capital stock the number of shares of Common Stock issuable upon
exercise of the Warrants (without taking


 


7

















 


into account any limitations on the exercise
of the Warrants set forth in the Warrants).  The Company shall, so long as
any of the Warrants are outstanding, take all action necessary to reserve and
keep available out of its authorized and unissued capital stock, solely for the
purpose of effecting the exercise of the Warrants, 100% of the number of shares
of Common Stock issuable upon exercise of the Warrants (without taking into account
any limitations on the exercise of the Warrants set forth in the Warrants).


 


(g)           Capitalization.  The number of shares and type
of all authorized, issued and outstanding capital stock, options and other
securities of the Company (whether or not presently convertible into or
exercisable or exchangeable for shares of capital stock of the Company) has
been set forth in the SEC Reports and has changed since the date of such SEC
Reports only due to stock grants or other equity awards or stock option and warrant
exercises that do not, individually or in the aggregate, have a material effect
on the issued and outstanding capital stock, options and other securities. 
All of the outstanding shares of capital stock of the Company are duly
authorized, validly issued, fully paid and non-assessable, have been issued in
compliance in all material respects with all applicable federal and state
securities laws, and none of such outstanding shares was issued in violation of
any preemptive rights or similar rights to subscribe for or purchase any
capital stock of the Company.  The Company has no liabilities or
obligations required to be disclosed in the SEC Reports but not so disclosed in
the SEC Reports, other than those incurred in the ordinary course of the
Company’s business and which, individually or in the aggregate, do not or would
not have a Material Adverse Effect.


 


(h)           SEC Reports; Disclosure Materials.  The
Company has filed all reports, schedules, forms, statements and other documents
required to be filed by it under the Exchange Act, including pursuant to Section
13(a) or 15(d) thereof, for the twelve months preceding the date hereof (or
such shorter period as the Company was required by law or regulation to file
such material) (the foregoing materials, including the exhibits thereto and
documents incorporated by reference therein, being collectively referred to
herein as the “SEC Reports” and
together with this Agreement and the Schedules to this Agreement, the “Disclosure Materials”), on a timely basis
or has received a valid extension of such time of filing and has filed any such
SEC Reports prior to the expiration of any such extension.  As of their
respective filing dates, or to the extent corrected by a subsequent restatement
or subsequent filings, the SEC Reports complied in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder.  The Company has never been an issuer subject to Rule 144(i) under
the Securities Act.


 


(i)            Financial Statements.  The financial
statements of the Company included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and regulations
of the Commission with respect thereto as in effect at the time of filing (or
to the extent corrected by a subsequent restatement).  Such financial
statements have been prepared in accordance with GAAP applied on a consistent
basis during the periods involved, except as may be otherwise specified in such
financial statements or the notes thereto and except that unaudited financial
statements may not contain all footnotes required by GAAP, and fairly present
in all material respects the financial position of the Company and its
consolidated subsidiaries taken as a whole as of and for the dates thereof and
the results of operations and cash flows for the periods then ended, subject,
in the case of unaudited statements, to normal, year-end audit adjustments.


 


(j)            Tax Matters.  The Company (i) has prepared
and filed all foreign, federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject, (ii)
has paid all taxes and other governmental assessments and charges that are
material in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith, with respect to which
adequate reserves have been set aside on the books of the Company and (iii) has
set aside on its books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or
declarations apply, except, in the case of clauses (i) and (ii) above, where
the failure to so pay or file any such tax, assessment, charge or return would
not have a Material Adverse Effect.


 


8

















 


(k)           Material Changes.  Since the date of the
latest financial statements included within the SEC Reports, except as
specifically disclosed in the SEC Reports, (i) there have been no events,
occurrences or developments that have had or would reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect, and (ii)
there has not been any material change or amendment to, or any waiver of any
material right by the Company under, any Material Contract.


 


(l)            Environmental Matters.  To the Company’s
Knowledge, neither the Company nor any of its Subsidiaries (i) is in violation
of any statute, rule, regulation, decision or order of any governmental agency
or body or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, “Environmental
Laws”), (ii) owns or operates any real property contaminated with
any substance that is in violation of any Environmental Laws, (iii) is liable
for any off-site disposal or contamination pursuant to any Environmental Laws,
or (iv) is subject to any claim relating to any Environmental Laws; which
violation, contamination, liability or claim has had or would have,
individually or in the aggregate, a Material Adverse Effect; and, to the
Company’s Knowledge, there is no pending or threatened investigation that might
lead to such a claim.


 


(m)          Litigation.  To the Company’s Knowledge, there
is no Action which (i) adversely affects or challenges the legality, validity
or enforceability of any of the Transaction Documents or the Securities or (ii)
except as specifically disclosed in the SEC Reports, is reasonably likely to
have a Material Adverse Effect, individually or in the aggregate, if there were
an unfavorable decision.  The Commission has not issued any stop order or
other order suspending the effectiveness of any registration statement filed by
the Company or any of its Subsidiaries under the Exchange Act or the Securities
Act.


 


(n)           Employment Matters.  No material labor dispute
exists or, to the Company’s Knowledge, is imminent with respect to any of the
employees of the Company which would have a Material Adverse Effect.  To
the Company’s Knowledge, it is in compliance with all U.S. federal, state,
local and foreign laws and regulations relating to employment and employment
practices, terms and conditions of employment and wages and hours, except where
the failure to be in compliance would not, individually or in the aggregate,
have a Material Adverse Effect.


 


(o)           Compliance.  Neither the Company nor any of
its Subsidiaries (i) is in default under or in violation of (and no event has
occurred that has not been waived that, with notice or lapse of time or both,
would result in a default by the Company or any of its Subsidiaries under), nor
has the Company or any of its Subsidiaries received written notice of a claim
that it is in default under or that it is in violation of, any Material
Contract (whether or not such default or violation has been waived), (ii) is in
violation of any order of which the Company has been made aware in writing of
any court, arbitrator or governmental body having jurisdiction over the Company
or its properties or assets, or (iii) is in violation of, or in receipt of
written notice that it is in violation of, any statute, rule or regulation of
any governmental authority applicable to the Company, except in each case as
would not, individually or in the aggregate, have a Material Adverse Effect.


 


(p)           Regulatory Permits.  The Company possesses or
has applied for all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary
to conduct its business as currently conducted and as described in the SEC
Reports, except where the failure to possess such permits, individually or in
the aggregate, has not and would not have, individually or in the aggregate, a
Material Adverse Effect (“Material Permits”),
and (i) neither the Company nor any of its Subsidiaries has received any notice
in writing of proceedings relating to the revocation or material adverse
modification of any such Material Permits and (ii) the Company is unaware of
any facts or circumstances that would give rise to the revocation or material
adverse modification of any Material Permits.


 


(q)           Title to Assets.  The Company and its Subsidiaries
do not own any real property. The Company and its Subsidiaries have good and
marketable title to all tangible personal property owned by


 


9

















 


them which is material to the business of the
Company and its Subsidiaries, taken as a whole, in each case free and clear of
all Liens except such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such property
by the Company and any of its Subsidiaries.  Any real property and
facilities held under lease by the Company and any of its Subsidiaries are held
by them under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its Subsidiaries.


 


(r)            Patents and Trademarks.  Except as otherwise
provided in Schedule 3.1(r) hereto, the Company and its Subsidiaries
own, possess, license or have other rights to use all foreign and domestic
patents, patent applications, trade and service marks, trade and service mark
registrations, trade names, copyrights, inventions, trade secrets, technology,
Internet domain names, know-how and other intellectual property (collectively, the
“Intellectual Property”) necessary for
the conduct of their respective businesses as now conducted, as described in
the SEC Reports (the “Company Intellectual
Property”).  Except as set forth in the SEC Reports or as
otherwise provided in Schedule 3.1(r) hereto, (a) to the Company’s
Knowledge, there are no rights of third parties to any such Company
Intellectual Property; (b) to the Company’s Knowledge, there is no pending or
threatened action, suit, proceeding or claim by others challenging the Company’s
and its Subsidiaries’ rights in or to any such Company Intellectual Property;
and (c) to the Company’s Knowledge, there is no pending or threatened action,
suit, proceeding or claim by others that the Company and/or any Subsidiary
infringes or otherwise violates any Intellectual Property of others, except, in
the case of clauses (a), (b) or (c) above, to the extent such rights,
violations or infringements would not have, either individually or in the
aggregate, a Material Adverse Effect.


 


(s)           Internal Accounting Controls; Disclosure Controls. 
Except as has not had or would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, the Company (i) has established
and maintained disclosure controls and procedures and internal control over
financial reporting (as such terms are defined in paragraphs (e) and (f),
respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15
under the Exchange Act, and (ii) has disclosed based on its most recent
evaluations, to its outside auditors and the Audit Committee of the Board of
Directors of the Company (A) all significant deficiencies and material
weaknesses in the design or operation of internal controls over financial
reporting (as defined in Rule 13a-15(f) of the Exchange Act) that are
reasonably likely to adversely affect the Company’s ability to record, process,
summarize and report financial data, and (B) any fraud, whether or not
material, that involves management or other employees who have a significant role
in the Company’s internal controls over financial reporting.


 


(t)            Sarbanes-Oxley.  The Company is in compliance
in all material respects with all of the provisions of the Sarbanes-Oxley Act
of 2002 which are applicable to it, except where such noncompliance would not
have, individually or in the aggregate, a Material Adverse Effect.


 


(u)           Certain Fees.  Except as identified in Schedule
3.1(u) hereto, no person or entity will have, as a result of the
transactions contemplated by this Agreement, any valid right, interest or claim
against or upon the Company or a Purchaser for any commission, fee or other
compensation pursuant to any agreement, arrangement or understanding entered
into by or on behalf of the Company.  The Company shall indemnify, pay,
and hold each Purchaser harmless against, any liability, loss or expense
(including, without limitation, attorneys’ fees and out-of-pocket expenses)
arising in connection with any such right, interest or claim.


 


(v)           Private Placement.  Assuming the accuracy of the
Purchasers’ representations and warranties set forth in Section 3.2 of this
Agreement and the accuracy of the information disclosed in the Accredited
Investor Questionnaires, no registration under the Securities Act is required
for the offer and sale of the Shares and Warrants by the Company to the
Purchasers under the Transaction Documents.


 


10
















 


(w)          Registration Rights.  Other than as set forth
in the SEC Reports and other than each of the Purchasers, no Person has any
right to cause the Company to effect the registration under the Securities Act
of any securities of the Company other than those securities which are
currently registered on an effective registration statement on file with the
Commission.


 


(x)            No Integrated Offering.  Assuming the
accuracy of the Purchasers’ representations and warranties set forth in Section
3.2, none of the Company, its Subsidiaries nor, to the Company’s Knowledge, any
of its Affiliates or any Person acting on its behalf has, directly or
indirectly, at any time within the past six months, made any offers or sales of
any Company security or solicited any offers to buy any security under
circumstances that would (i) eliminate the availability of the exemption from
registration under Regulation D under the Securities Act in connection with the
offer and sale by the Company of the Shares and Warrants as contemplated hereby
or (ii) cause the offering of the Shares and Warrants pursuant to the
Transaction Documents to be integrated with prior offerings by the Company for
purposes of any applicable law, regulation or stockholder approval provisions,
including, without limitation, under the rules and regulations of any Trading
Market on which any of the securities of the Company are listed or designated.


 


(y)           Listing and Maintenance Requirements.  The
Company’s Common Stock is registered pursuant to Section 12(b) of the Exchange
Act, and the Company has taken no action designed to terminate the registration
of the Common Stock under the Exchange Act nor has the Company received any
notification that the Commission is contemplating terminating such registration. 
The Company has not, in the 12 months preceding the date hereof, received
written notice from any Trading Market on which the Common Stock is listed or
quoted to the effect that the Company is not in compliance with the listing or
maintenance requirements of such Trading Market.  The Company is in
compliance in all material respects with the listing and maintenance
requirements for continued trading of the Common Stock on the Principal Trading
Market.


 


(z)            Disclosure.  To the Company’s Knowledge, no
event or circumstance has occurred or information exists with respect to the
Company or any of its Subsidiaries or its or their business, properties,
operations or financial conditions, which, under applicable law, rule or
regulation, requires public disclosure or announcement by the Company but which
has not been so publicly announced or disclosed (assuming for this purpose that
the Company’s reports filed under the Exchange Act are being incorporated into
an effective registration statement filed by the Company under the Securities
Act), except for the announcement of this Agreement and related transactions
and as may be disclosed on the Form 8-K filed pursuant to Section 4.6.


 


(aa)         No General Solicitation.  The Company did not
offer the Securities as a general solicitation in the form of an advertisement,
article, notice or other communication regarding the Securities published in
any newspaper, magazine or similar media or broadcast over television or radio
or presented at any seminar or any other general advertisement.


 


3.2           Representations
and Warranties of the Purchasers.  Each Purchaser hereby, for itself
and for no other Purchaser, represents and warrants as of the date hereof and
as of the Closing Date to the Company as follows:


 


(a)           Organization; Authority.  Such Purchaser is an
entity duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization with the requisite corporate or
partnership power and authority to enter into and to consummate the
transactions contemplated by the applicable Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder.  The execution,
delivery and performance by such Purchaser of the transactions contemplated by
this Agreement have been duly authorized by all necessary corporate or, if such
Purchaser is not a corporation, such partnership, limited liability company or
other applicable like action, on the part of such Purchaser.  This
Agreement has been duly executed by such Purchaser, and when delivered by such


 


11

















 


Purchaser in accordance with the terms
hereof, will constitute the valid and legally binding obligation of such
Purchaser, enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general application.


 


(b)           No Conflicts.  The execution, delivery and
performance by such Purchaser of this Agreement and the consummation by such
Purchaser of the transactions contemplated hereby will not (i) result in a
violation of the organizational documents of such Purchaser, (ii) conflict
with, or constitute a default (or an event which with notice or lapse of time
or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which such Purchaser is a party, or (iii) result in
a violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws) applicable to such Purchaser, except in the
case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or
violations which would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the ability of such Purchaser to
perform its obligations hereunder.


 


(c)           Investment Intent.  Such Purchaser understands that the Securities are “restricted securities”
and have not been registered under the Securities Act or any applicable state
securities law and is acquiring the Securities and, upon exercise of the
Warrants, will acquire the Warrant Shares issuable upon exercise thereof as
principal for its own account and not with a view to, or for distributing or
reselling such Securities or any part thereof in violation of the Securities
Act or any applicable state securities laws, provided,
however, that by making the representations herein, such Purchaser
does not agree to hold any of the Securities for any minimum period of time and
reserves the right, subject to the provisions of this Agreement, at all times
to sell or otherwise dispose of all or any part of such Securities or Warrant
Shares pursuant to an effective registration statement under the Securities Act
or under an exemption from such registration and in compliance with applicable
federal and state securities laws.  Such Purchaser is acquiring the
Securities hereunder in the ordinary course of its business. Such Purchaser
does not presently have any agreement, plan or understanding, directly or
indirectly, with any Person to distribute or effect any distribution of any of
the Securities (or any securities which are derivatives thereof) to or through
any person or entity; such Purchaser is not a registered broker-dealer under Section
15 of the Exchange Act or an entity engaged in a business that would require it
to be so registered as a broker-dealer.


 


(d)           Purchaser Status.  At the time such Purchaser was offered the Securities, it was, and at the
date hereof it is, an “accredited investor” as defined in Rule 501(a) under the
Securities Act.


 


(e)           General Solicitation.  Such Purchaser is not
purchasing the Securities as a result of any advertisement, article, notice or
other communication regarding the Securities published in any newspaper,
magazine or similar media or broadcast over television or radio or presented at
any seminar or any other general advertisement.


 


(f)            Experience of Such Purchaser.  Such
Purchaser, either alone or together with its representatives, has such
knowledge, sophistication and experience in business and financial matters so
as to be capable of evaluating the merits and risks of the prospective
investment in the Securities, and has so evaluated the merits and risks of such
investment.  Such Purchaser is able to bear the economic risk of an
investment in the Securities and, at the present time, is able to afford a complete
loss of such investment.


 


(g)           Access to Information.  Such Purchaser
acknowledges that it has had the opportunity to review the Disclosure Materials
and has been afforded (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives of the
Company concerning the terms and conditions of the offering of the Securities
and the merits and risks of investing in the Securities; (ii) access to
information about the Company and the Subsidiaries and their respective
financial condition, results of operations, business, properties, management
and prospects sufficient to enable it to evaluate its investment;


 


12

















 


and (iii) the opportunity to obtain such additional
information that the Company possesses or can acquire without unreasonable
effort or expense that is necessary to make an informed investment decision
with respect to the investment.  Neither such inquiries nor any other
investigation conducted by or on behalf of such Purchaser or its
representatives or counsel shall modify, amend or affect such Purchaser’s right
to rely on the truth, accuracy and completeness of the Disclosure Materials and
the Company’s representations and warranties contained in the Transaction
Documents.  Such Purchaser has sought such accounting, legal and tax
advice as it has considered necessary to make an informed decision with respect
to its acquisition of the Securities.


 


(h)           Certain Trading Activities.  Other than with
respect to the transactions contemplated herein, since the time that such
Purchaser was first contacted by the Company or any other Person regarding the
transactions contemplated hereby, neither the Purchaser nor any Affiliate of
such Purchaser which (x) had knowledge of the transactions contemplated hereby,
(y) has or shares discretion relating to such Purchaser’s investments or
trading or information concerning such Purchaser’s investments, including in
respect of the Shares and Warrants, and (z) is subject to such Purchaser’s
review or input concerning such Affiliate’s investments or trading
(collectively, “Trading Affiliates”), has directly or indirectly, nor has any Person acting
on behalf of or pursuant to any understanding with such Purchaser or Trading Affiliate,
effected or agreed to effect any purchases or sales of the securities of the
Company (including, without limitation, any Short Sales involving the Company’s
securities).  Notwithstanding the foregoing, in the case of a Purchaser
and/or Trading Affiliate that is, individually or collectively, a multi-managed
investment bank or vehicle whereby separate portfolio managers manage separate
portions of such Purchaser’s or Trading Affiliate’s assets and the portfolio
managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Purchaser’s or Trading
Affiliate’s assets, the representation set forth above shall apply only with
respect to the portion of assets managed by the portfolio manager that have
knowledge about the financing transaction contemplated by this Agreement.


 


(i)            Brokers and Finders.  No Person will have, as
a result of the transactions contemplated by this Agreement, any valid right,
interest or claim against or upon the Company or any Purchaser for any
commission, fee or other compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of the Purchaser.


 


(j)            Independent Investment Decision.  Such
Purchaser has independently evaluated the merits of its decision to purchase
Shares and Warrants pursuant to the Transaction Documents, and such Purchaser
confirms that it has not relied on the advice of any other Purchaser’s business
and/or legal counsel in making such decision.  Such Purchaser understands
that nothing in this Agreement or any other materials presented by or on behalf
of the Company to the Purchaser in connection with the purchase of the Shares
and Warrants constitutes legal, tax or investment advice.  Such Purchaser
has consulted such legal, tax and investment advisors as it, in its sole
discretion, has deemed necessary or appropriate in connection with its purchase
of the Shares and Warrants.


 


(k)           Reliance on Exemptions.  Such Purchaser
understands that the Shares and Warrants being offered and sold to it in
reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying in
part upon the truth and accuracy of, and such Purchaser’s compliance with, the
representations, warranties, agreements, acknowledgements and understandings of
such Purchaser set forth herein in order to determine the availability of such
exemptions and the eligibility of such Purchaser to acquire the Shares and
Warrants.


 


(l)            No Governmental Review.  Such Purchaser
understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation or
endorsement of the Securities or the fairness or suitability of the investment
in the Securities nor have such authorities passed upon or endorsed the merits
of the offering of the Securities.


 


13

















 


(m)          Regulation M.  Such Purchaser is aware that the
anti-manipulation rules of Regulation M under the Exchange Act may apply to
sales of Common Stock and other activities with respect to the Common Stock by
the Purchasers.


 


(n)           Residency.  Such Purchaser’s residence (if an
individual) or office in which its investment decision with respect to the
Shares and Warrants was made (if an entity) are located at the address
immediately below such Purchaser’s name on its signature page hereto.


 


(o)           Beneficial Ownership.  The purchase by such
Purchaser of the Securities issuable to it at the Closing will not result in
such Purchaser (individually or together with any other Person with whom such
Purchaser has identified, or will have identified, itself as part of a “group”
in a public filing made with the Commission involving the Company’s securities)
acquiring, or obtaining the right to acquire, in excess of 19.9% of the
outstanding shares of Common Stock or the voting power of the Company on a
post-transaction basis that assumes that such Closing shall have occurred. 
Such Purchaser does not presently intend to, alone or together with others,
make a public filing with the Commission to disclose that it has (or that it
together with such other Persons have) acquired, or obtained the right to
acquire, as a result of such Closing (when added to any other securities of the
Company that it or they then own or have the right to acquire), in excess of
19.9% of the outstanding shares of Common Stock or the voting power of the
Company on a post-transaction basis that assumes that each Closing shall have
occurred.


 


The Company and each of the
Purchasers acknowledge and agree that no party to this Agreement has made or
makes any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Article III
and the Transaction Documents.


 


ARTICLE IV

OTHER AGREEMENTS OF THE PARTIES


 


4.1           Transfer
Restrictions.


 


(a)           Compliance with Laws.  Notwithstanding any
other provision of this Article IV, each Purchaser covenants that the
Securities may be disposed of only pursuant to an effective registration
statement under, and in compliance with the requirements of, the Securities
Act, or pursuant to an available exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act, and in
compliance with any applicable state, federal or foreign securities laws. 
In connection with any transfer of the Securities other than (i) pursuant to an
effective registration statement, (ii) to the Company, or (iii) pursuant to Rule
144 (provided that the Purchaser provides the Company with reasonable
assurances (in the form of seller and broker representation letters) that the
securities may be sold pursuant to such rule), the Company may require the
transferor thereof to provide to the Company and the Transfer Agent, at the
transferor’s expense, an opinion of counsel selected by the transferor and
reasonably acceptable to the Company and the Transfer Agent, the form and
substance of which opinion shall be reasonably satisfactory to the Company and
the Transfer Agent, to the effect that such transfer does not require
registration of such transferred Securities under the Securities Act.  As
a condition of transfer (other than pursuant to clauses (i), (ii) or (iii) of
the preceding sentence), any such transferee shall agree in writing to be bound
by the terms of this Agreement and shall have the rights of a Purchaser under
this Agreement with respect to such transferred Securities.


 


(b)           Legends.  Certificates evidencing the
Securities shall bear any legend as required by the “blue sky” laws of any
state and a restrictive legend in substantially the following form, until such
time as they are not required under Section 4.1(c) or applicable law:


 


[NEITHER THESE SECURITIES
NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE BEEN
REGISTERED] [THESE SECURITIES HAVE NOT BEEN REGISTERED] UNDER THE SECURITIES


 


14

















 


ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
APPLICABLE STATE SECURITIES LAWS.  THE SECURITIES MAY NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR (B) AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY AND ITS TRANSFER AGENT OR (II) UNLESS
SOLD PURSUANT TO RULE 144 UNDER SAID ACT.  NO REPRESENTATION IS MADE BY
THE ISSUER AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT FOR RESALES OF THESE SECURITIES.


 


(c)           Removal of Legends.  The restrictive legend
set forth in Section 4.1(b) above shall be removed and the Transfer Agent or
the Company, as the case may be, shall issue a certificate without such
restrictive legend or any other restrictive legend to the holder of the
applicable Securities upon which it is stamped or issue to such holder by
electronic delivery at the applicable balance account at the Depository Trust
Company (“DTC”), if (i) such
Securities are registered for resale under the Securities Act (provided that,
if the Purchaser is selling pursuant to the effective registration statement
registering the Securities for resale, the Purchaser agrees to only sell such
Securities during such time that such registration statement is effective and
not withdrawn or suspended, and only as permitted by such registration
statement), (ii) such Securities are sold or transferred pursuant to Rule 144
(if the transferor is not an Affiliate of the Company), or (iii) such
Securities are eligible for sale under Rule 144, without the requirement for
the Company to be in compliance with the current public information required
under Rule 144 as to such securities and without volume or manner-of-sale
restrictions.  Certificates for Securities subject to legend removal
hereunder may be transmitted by the Transfer Agent to the Purchasers by
crediting the account of the Purchaser’s prime broker with DTC as directed by
such Purchaser.


 


(d)           Acknowledgement.  Each Purchaser hereunder
acknowledges its primary responsibilities under the Securities Act and
accordingly will not sell or otherwise transfer the Shares, the Warrants or the
Warrant Shares or any interest therein without complying with the requirements
of the Securities Act.  Except as otherwise provided below, while any
Registration Statement remains effective, each Purchaser hereunder may sell the
Shares and Warrant Shares in accordance with the plan of distribution contained
in such Registration Statement and if it does so it will comply therewith and
with the related prospectus delivery requirements unless an exemption therefrom
is available.  Each Purchaser, severally and not jointly with the other
Purchasers, agrees that if it is notified by the Company in writing at any time
that the Registration Statement registering the resale of the Shares or the
Warrant Shares is not effective or that the prospectus included in such
Registration Statement no longer complies with the requirements of Section 10
of the Securities Act, the Purchaser will refrain from selling such Shares and
Warrant Shares until such time as the Purchaser is notified by the Company that
such Registration Statement is effective or such prospectus is compliant with Section
10 of the Securities Act, unless such Purchaser is able to, and does, sell such
Shares or Warrant Shares pursuant to an available exemption from the
registration requirements of Section 5 of the Securities Act.  Both the
Company and its Transfer Agent, and their respective directors, officers,
employees and agents, may rely on this Section 4.1(d).


 


15

















 


4.2           Acknowledgment
of Dilution.  The Company acknowledges that the issuance of the
Securities may result in dilution of the outstanding shares of Common Stock. 
The Company further acknowledges that its obligations under the Transaction
Documents, including without limitation its obligation to issue the Securities
pursuant to the Transaction Documents, are unconditional and absolute and not
subject to any right of set off, counterclaim, delay or reduction, regardless
of the effect of any such dilution or any claim the Company may have against
any Purchaser and regardless of the dilutive effect that such issuance may have
on the ownership of the other stockholders of the Company.


 


4.3           Furnishing
of Information.  In order to enable the Purchasers to sell the Securities
under Rule 144 of the Securities Act, for a period of one year from the
Closing, the Company shall use its commercially reasonable efforts to maintain
the registration of the Shares and Warrant Shares under Section 12(b) or 12(g) of
the Exchange Act and to timely file (or obtain extensions in respect thereof
and file within the applicable grace period) all reports required to be filed
by the Company after the date hereof pursuant to the Exchange Act.  During
such one year period, if the Company is not required to file reports pursuant
to such laws, it will prepare and furnish to the Purchasers and make publicly
available in accordance with Rule 144(c) such information as is required for
the Purchasers to sell the Securities under Rule 144.


 


4.4           Form
D and Blue Sky.  The Company agrees to timely file a Form D with
respect to the Securities as required under Regulation D.  The Company, on
or before the Closing Date, shall take such action as the Company shall
reasonably determine is necessary in order to obtain an exemption for or to
qualify the Securities for sale to the Purchasers at the Closing pursuant to
this Agreement under applicable securities or “Blue Sky” laws of the states of
the United States (or to obtain an exemption from such qualification).  The
Company shall make all filings and reports relating to the offer and sale of
the Securities required under applicable securities or “Blue Sky” laws of the
states of the United States following the Closing Date.


 


4.5           No
Integration.  The Company shall not, and shall use its commercially
reasonable efforts to ensure that no Affiliate of the Company shall, sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect of
any security (as defined in Section 2 of the Securities Act) that will be
integrated with the offer or sale of the Securities in a manner that would
require the registration under the Securities Act of the sale of the Securities
to the Purchasers, or that will be integrated with the offer or sale of the
Securities for purposes of the rules and regulations of any Trading Market such
that it would require stockholder approval prior to the closing of such other
transaction unless stockholder approval is obtained before the closing of such
subsequent transaction.


 


4.6           Securities
Laws Disclosure; Publicity.  By 9:00 a.m., New York City time, on the
Trading Day immediately following the execution of this Agreement, the Company
shall issue a press release (“Press Release”)
disclosing all material terms of the transactions contemplated hereby.  On
or before 9:00 a.m., New York City time, on the fourth Trading Day immediately
following the execution of this Agreement, the Company will file a Current
Report on Form 8-K with the Commission describing the terms of the Transaction
Documents (and including as exhibits to such Current Report on Form 8-K the
material Transaction Documents (including, without limitation, this Agreement). 
Notwithstanding the foregoing, the Company shall not publicly disclose the name
of any Purchaser or an Affiliate of any Purchaser, or include the name of any
Purchaser or an Affiliate of any Purchaser in any press release or filing with
the Commission (other than the Registration Statement) or any regulatory agency
or Trading Market, without the prior written consent of such Purchaser, except (i)
as required by federal securities law in connection with (A) any Registration
Statement and (B) the filing of final Transaction Documents (which may include
conformed signatures, but not originals) with the Commission and (ii) to the
extent such disclosure is required by law, request of the Staff of the
Commission or Trading Market regulations, in which case the Company shall
provide the Purchasers with prior written notice of such disclosure permitted
under this subclause (ii).  Each Purchaser, severally and not jointly with
the other Purchasers, covenants that until such time as the transactions
contemplated by this Agreement are publicly disclosed by the Company as
described in this


 


16

















 


Section 4.6, such Purchaser will maintain the confidentiality of all
disclosures made to it in connection with this transaction (including the
existence and terms of this transaction).


 


4.7           Indemnification.


 


(a)           Indemnification of Purchasers.  The Company
will indemnify and hold each Purchaser and its directors, officers,
stockholders, members, partners, employees and agents (and any other Persons
with a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title), each Person who
controls such Purchaser (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, stockholders,
agents, members, partners or employees (and any other Persons with a
functionally equivalent role of a Person holding such titles notwithstanding a
lack of such title or any other title) of such controlling person (each, a “Purchaser Party”) harmless from any and
all losses, liabilities, obligations, claims, contingencies, damages, costs and
expenses, including all judgments, amounts paid in settlements, court costs and
reasonable attorneys’ fees and costs of investigation that any such Purchaser
Party may suffer or incur as a result of any breach of any of the
representations, warranties, covenants or agreements made by the Company in
this Agreement or in the other Transaction Documents.  The Company will
not be liable to any Purchaser Party under this Agreement to the extent, but
only to the extent that a loss, claim, damage or liability is attributable to
any Purchaser Party’s breach of any of the representations, warranties,
covenants or agreements made by such Purchaser Party in this Agreement or in
the other Transaction Documents.


 


(b)           Conduct of Indemnification Proceedings.  Promptly after receipt by any
Person (the “Indemnified Person”)
of notice of any demand, claim or circumstances which would or might give rise
to a claim or the commencement of any action, proceeding or investigation in
respect of which indemnity may be sought pursuant to Section 4.7(a), such
Indemnified Person shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Indemnified Person, and shall assume the
payment of all fees and expenses; provided,
however , that the failure of any Indemnified Person to so notify
the Company shall not relieve the Company of its obligations hereunder except
to the extent that the Company is actually and materially and adversely
prejudiced by such failure to notify.  In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless: (i) the Company and the Indemnified Person shall have mutually agreed
to the retention of such counsel; (ii) the Company shall have failed promptly
to assume the defense of such proceeding and to employ counsel reasonably
satisfactory to such Indemnified Person in such proceeding; or (iii) in the
reasonable judgment of counsel to such Indemnified Person, representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them.  The Company shall not be
liable for any settlement of any proceeding effected without its written
consent, which consent shall not be unreasonably withheld, delayed or
conditioned unless the Company fails to defend any proceeding or fails to
promptly respond to a settlement offer.  Without the prior written consent
of the Indemnified Person, which consent shall not be unreasonably withheld,
delayed or conditioned, the Company shall not effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Party, unless such settlement includes an unconditional
release of such Indemnified Person from all liability arising out of such
proceeding.


 


4.8           Listing
of Common Stock.  In the time and manner required by the Principal
Trading Market, the Company shall prepare and file with such Trading Market an
additional shares listing application covering all of the Shares and Warrant Shares
and shall use its commercially reasonable efforts to take all steps necessary
to cause the Shares and Warrant Shares to be approved for listing on the
Principal Trading Market.


 


17

















 


4.9           Use
of Proceeds.  The Company intends to use the net proceeds from the
sale of the Securities hereunder for working capital and general corporate
purposes, provided, however,
that the Company shall not use the proceeds from this Agreement for the
repayment of any principal on outstanding debt or financing obligations,
including repayment (in whole or in part) of principal on the outstanding debt
under the Loan and Security Agreement entered into between the Company and
General Electric Capital Corporation and any amendments thereto.


 


4.10         Short
Sales After The Date Hereof.  Such Purchaser shall not, and shall
cause its Trading Affiliates not to, engage, directly or indirectly, in any
transactions in the Company’s securities (including, without limitation, any
Short Sales involving the Company’s securities) for a period of 3 years
following the Closing Date.  Each Purchaser severally and not jointly with
the other Purchasers covenants that until such time as the transactions
contemplated by this Agreement are publicly disclosed by the Company as
described in Section 4.6, such Purchaser will maintain the confidentiality of
the existence and terms of this Agreement and the transactions contemplated
hereby.  Notwithstanding the foregoing, in the event that a Purchaser is a
multi-managed investment vehicle whereby separate portfolio managers manage
separate portions of such Purchaser’s assets and the portfolio managers have no
direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the representation set
forth above shall apply only with respect to the portion of assets managed by
the portfolio manager that have knowledge about the financing transaction
contemplated by this Agreement.  Each Purchaser understands and
acknowledges, severally and not jointly with any other Purchaser, that the
Commission currently takes the position that covering a short position
established prior to effectiveness of a resale registration statement with
shares included in such registration statement would be a violation of Section 5
of the Securities Act, as set forth in Item 65, Section 5 under Section A, of
the Manual of Publicly Available Telephone Interpretations, dated July 1997,
compiled by the Office of Chief Counsel, Division of Corporation Finance.


 


4.11         Reservation
of Common Stock. 
The Company shall, so long as any of the Warrants are outstanding, take all
action necessary to at all times have authorized and unissued capital stock,
and reserved solely for the purpose of effecting the exercise of the Warrants
from and after the Closing Date, the number of shares of Common Stock issuable
upon exercise of the Warrants (without taking into account any limitations on
exercise of the Warrants set forth in the Warrants).


 


4.12         Disclosure
of Material Information.  From and after the issuance of the Press Release, no Purchaser
shall be in possession of any material, non public information received from
the Company, any Subsidiary or any of their respective officers, directors,
employees or agents, that is not disclosed in the Press Release unless a
Purchaser shall have executed a written agreement regarding the confidentiality
and use of such information.  The Company and its Subsidiaries covenant
and agree that neither it nor any other person acting on its or their behalf
has provided or, from and after the filing of the Press Release, will provide
any Purchaser or its agents or counsel with any information that the Company
believes constitutes material non-public information (other than with respect
to the transactions contemplated by this Agreement), unless prior thereto such
Purchaser shall have executed a specific written agreement regarding the
confidentiality and use of such information.  The parties agree that any
confidentiality and nondisclosure agreements entered into prior to the Closing
Date shall not be deemed to be a valid consent to receive any material
non-public information that shall be disclosed to any Purchaser subsequent to
the Closing Date.  The Company understands and confirms that each
Purchaser shall be relying on the foregoing covenants in effecting transactions
in securities of the Company. The Company shall not disclose the identity of
any Purchaser in any filing with the SEC except as required by the rules and regulations
of the SEC thereunder.  In the event of a breach of the foregoing covenant
by the Company, any of its subsidiaries, or any of its or their respective
officers, directors, employees and agents, in addition to any other remedy
provided herein or in the Transaction Documents, a Purchaser may notify the
Company, and the Company shall make public disclosure of such material
nonpublic information within two (2) Trading Days of such notification.


 


4.13         Observer
Rights.  For
so long as Vision shall own Shares which, in the aggregate, represent more than
3% of the total combined voting power of all voting securities then
outstanding, the Company


 


18

















 


shall
invite a representative of Vision to attend all meetings of its Board of
Directors in a non-voting observer capacity (the “Observer”). 
The Company reserves the right to exclude the Observer from access to any
materials or meetings if the Company believes, based on the advice of counsel,
that such exclusion is necessary to preserve attorney-client, work product or
similar privilege.  Further, in the event there will be discussions of any
material non-public information at any such meeting, the Board of Directors
shall have such discussions outside of the presence of the Observer, unless the
Observer agrees to sign a non-disclosure agreement.  The execution of a
non-disclosure agreement shall be in the sole discretion of the Observer. 
If the Observer does not agree to enter into a non-disclosure agreement then,
upon notification by the Board of Directors that material non-public
information will be discussed, such Observer shall excuse himself from that
portion of the meeting when any material non-public information is discussed. 
Prior to any meeting of the Board of Directors or at any meeting of the Board
of Directors where the Observer is present, such Observer shall be permitted to
discuss the affairs, finances and accounts of the Company with, and make
proposals and furnish advice with respect thereto, to the Board of Directors,
even if such Observer does not have voting rights.  The Observer shall
hold in confidence and trust any information provided to or learned by him in
connection with such right, unless otherwise required by law, so long as such
information is not in the public domain.


 


4.14         Inspection
Rights.  The
Company shall permit, during normal business hours and upon reasonable request
and reasonable notice, each Purchaser or any employees, agents or
representatives thereof, for so long as such Purchaser shall own Shares which,
in the aggregate, represent more than 3% of the total combined voting power of
all voting securities then outstanding, for purposes reasonably related to such
Purchaser’s interests as a stockholder to examine and make reasonable copies of
and extracts from the records and books of account of, and visit and inspect
the properties, assets, operations and business of the Company and any
subsidiary, and to discuss the affairs, finances and accounts of the Company
and any subsidiary with any of its officers, consultants, directors, and key
employees. Such Purchaser agrees that such Purchaser and its employees, agents
and representatives will keep confidential and will not disclose, divulge or
use (other than for purposes of monitoring its investment in the Company) any
confidential information which such Purchaser may obtain from the Company
pursuant to financial statements, reports and other materials submitted by the
Company to such Purchaser pursuant to this Agreement or pursuant to inspection
rights granted hereunder, unless such information is known to the public
through no fault of such Purchaser or his or its employees or representatives;
provided, however, that a Purchaser may disclose such information (i) to its
attorneys, accountants and other professionals in connection with their
representation of such Purchaser in connection with such Purchaser’s investment
in the Company, (ii) to any prospective permitted transferee of the Shares, so
long as the prospective transferee agrees in writing to be bound by the
provisions of this Section 4.14, or (iii) to any general partner or affiliate
of such Purchaser.


 


4.15         Limited
Participation Right.  Until the later to occur of (i) such time as a Purchaser shall
own Shares which, in the aggregate, represent less than 3% of the total
combined voting power of all voting securities then outstanding and (ii) one (1)
year from the Closing Date, such Purchaser shall have the right, but not the
obligation, to purchase up to an amount equal to its Participation Percentage
(as defined below) of any sale by the Company of any of its securities other
than in connection with a Strategic Transaction (as defined below.  The
Company shall provide at least ten (10) Business Days’ prior notice of such transaction
to such Purchaser and shall give such Purchaser the right to participate in
such transaction.  For purposes of this Section 4.15, the term “Participation Percentage” shall mean such Purchaser’s pro
rata portion of the aggregate Shares purchased hereunder.  For purposes of
this Section 4.15, the term “Strategic Transaction”
shall mean securities issued by the Company pursuant to a strategic
transaction including, without limitation, an acquisition, joint venture,
alliance, collaboration or investment transaction, provided that any such
issuance is to a person which is, itself or through its subsidiaries or
affiliates, an operating company and in which the Company receives strategic
benefits that are in addition to the investment of funds.


 


4.16         Continued
Listing. 
In the event the Company’s Common Stock shall no longer be designated for
quotation or listed on a Trading Market (other than the OTC Bulletin Board) (a “Delisting Event”), the Company shall pay to each Purchaser
on each monthly anniversary of such Delisting Event an


 


19

















 


amount
in cash, as liquidated damages and not as a penalty, equal to 2.0% of the
purchase price paid by such Purchaser pursuant to this Agreement for the
Securities held by such Purchaser as of such Delisting Event. The parties agree
that, notwithstanding anything to the contrary herein, in no event shall the
aggregate amount of liquidated damages payable to a Purchaser exceed, in the
aggregate, twelve percent (12.0%) of the purchase price paid by such Purchaser
pursuant to this Agreement for the Securities held by such Purchaser as of such
Delisting Event.  Further, notwithstanding anything herein to the
contrary, no liquidated damages pursuant to this Section 4.16 shall apply after
the expiration of one (1) year following the earlier to occur of (i) the date
the Registration Statement is declared effective and (ii) the date when the
Securities become eligible for resale pursuant to Rule 144.


 


ARTICLE V

CONDITIONS PRECEDENT TO CLOSING


 


5.1           Conditions
Precedent to the Obligations of the Purchasers to Purchase Shares and Warrants. 
The obligation of each Purchaser to acquire Shares and Warrants at the Closing
is subject to the fulfillment to such Purchaser’s satisfaction, on or prior to
the Closing Date, of each of the following conditions, any of which may be
waived by such Purchaser (as to itself only):


 


(a)           Representations and Warranties.  The
representations and warranties of the Company contained herein shall be true
and correct in all material respects as of the date when made and as of the
Closing Date, as though made on and as of such date, except for such
representations and warranties that speak as of a specific date.


 


(b)           Performance.  The Company shall have
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by it at or prior to the Closing.


 


(c)           No Injunction.  No statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction that prohibits the consummation of any of the transactions
contemplated by the Transaction Documents.


 


(d)           Consents.  The Company shall have obtained in
a timely fashion any and all consents, permits, approvals, registrations and
waivers necessary for consummation of the purchase and sale of the Shares and
Warrants at the Closing, all of which shall be and remain so long as necessary
in full force and effect.


 


(e)           No Suspensions of Trading in Common Stock; Listing. 
The Common Stock (i) shall be designated for quotation or listed on the
Principal Trading Market and (ii) shall not have been suspended, as of the
Closing Date, by the Commission or the Principal Trading Market from trading on
the Principal Trading Market nor shall suspension by the Commission or the
Principal Trading Market have been threatened, as of the Closing Date, either (A)
in writing by the Commission or the Principal Trading Market or (B) by falling
below the minimum listing maintenance requirements of the Principal Trading
Market.


 


(f)            Company Deliverables.  The Company shall have
delivered the Company Deliverables in accordance with Section 2.2(a).


 


(g)           Compliance Certificate.  The Company shall
have delivered to each Purchaser a certificate, dated as of the Closing Date
and signed by its Chief Executive Officer or its Chief Financial Officer, dated
as of the Closing Date, certifying to the fulfillment of the conditions
specified in Sections 5.1(a) and (b).


 


20
















 


(h)           Termination.  This Agreement shall not have been terminated
as to such Purchaser in accordance with Section 6.17 herein.


 


5.2           Conditions
Precedent to the Obligations of the Company to sell Shares and Warrants.  The Company’s obligation to sell and issue
the Shares and Warrants at the Closing is subject to the fulfillment to the
satisfaction of the Company on or prior to the Closing Date of the following
conditions, any of which may be waived by the Company:


 


(a)           Representations
and Warranties.  The representations
and warranties made by the Purchaser in Section 3.2 hereof shall be true
and correct in all material respects as of the date when made, and as of the
Closing Date as though made on and as of such date, except for representations
and warranties that speak as of a specific date.


 


(b)           Performance.  Such Purchaser shall have performed,
satisfied and complied in all material respects with all covenants, agreements
and conditions required by the Transaction Documents to be performed, satisfied
or complied with by such Purchaser at or prior to the Closing Date.


 


(c)           No Injunction.  No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority of competent
jurisdiction that prohibits the consummation of any of the transactions
contemplated by the Transaction Documents.


 


(d)           Consents.  The Company shall have obtained in a timely
fashion any and all consents, permits, approvals, registrations and waivers
necessary for consummation of the purchase and sale of the Shares and Warrants,
all of which shall be and remain so long as necessary in full force and effect.


 


(e)           Purchasers
Deliverables.  Such Purchaser shall
have delivered its Purchaser Deliverables in accordance with Section 2.2(b).


 


(f)            Termination.  This Agreement shall not have been terminated
as to such Purchaser in accordance with Section 6.17 herein.


 


ARTICLE VI

MISCELLANEOUS


 


6.1           Fees and Expenses.  At the Closing, the Company shall reimburse
Vision for its legal fees in the amount of up to $35,000 in connection with the
transactions contemplated by the Transaction Documents.  Other than Vision’s legal fees provided
above, the Company and the Purchasers shall each pay the fees and expenses of
their respective advisers, counsel, accountants and other experts, if any, and
all other expenses incurred by such party in connection with the negotiation,
preparation, execution, delivery and performance of this Agreement.  The Company shall pay all Transfer Agent
fees, stamp taxes and other taxes and duties levied in connection with the sale
and issuance of the Securities to the Purchasers.


 


6.2           Entire Agreement.  The Transaction Documents, together with the
Exhibits and Schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements,
understandings, discussions and representations, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules.  At or
after the Closing, and without further consideration, the Company and the
Purchasers will execute and deliver to the other such further documents as may
be reasonably requested in order to give practical effect to the intention of
the parties under the Transaction Documents.


 


21

















 


6.3           Notices.  Any and all notices or other communications
or deliveries required or permitted to be provided hereunder shall be in
writing and shall be deemed given and effective on the earliest of (a) the
date of transmission, if such notice or communication is delivered via
facsimile (provided the sender receives a machine-generated confirmation of
successful transmission) at the facsimile number specified in this Section prior
to 5:00 p.m., New York City time, on a Trading Day, (b) the next
Trading Day after the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified in this Section on
a day that is not a Trading Day or later than 5:00 p.m., New York City
time, on any Trading Day, (c) the Trading Day following the date of
mailing, if sent by U.S. nationally recognized overnight courier service with
next day delivery specified, or (d) upon actual receipt by the party to
whom such notice is required to be given. 
The address for such notices and communications shall be as follows:


 


	
  If
  to the Company:

  	
   

  	
  Helicos BioSciences
  Corporation

  
	
   

  	
   

  	
  One Kendall Square

  
	
   

  	
   

  	
  Building 700

  
	
   

  	
   

  	
  Cambridge, Massachusetts
  02139

  
	
   

  	
   

  	
  Telephone No.: (617)
  264-1800

  
	
   

  	
   

  	
  Facsimile No.: (617)
  264-1700

  
	
   

  	
   

  	
  Attention: General Counsel

  
	
   

  	
   

  	
   

  
	
  With
  a copy to (which shall not constitute notice):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Goodwin Procter LLP

  
	
   

  	
   

  	
  Exchange Place

  
	
   

  	
   

  	
  53 State Street

  
	
   

  	
   

  	
  Boston, Massachusetts
  02109

  
	
   

  	
   

  	
  Telephone No.: (617)
  570-1000

  
	
   

  	
   

  	
  Facsimile No.: (617)
  523-1231

  
	
   

  	
   

  	
  Attention:

  	
  Stuart M. Cable, Esq.

  
	
   

  	
   

  	
   

  	
  James A.
  Matarese, Esq.

  
	
   

  	
   

  	
   

  	
   

  
	
  If
  to a Purchaser:

  	
   

  	
  To the address set forth
  under such Purchaser’s name on the signature page hereof

  
	
   

  	
   

  	
   

  
	
  With
  a copy to (which shall not constitute notice):

  
	
   

  
	
   

  	
   

  	
  Anslow & Jaclin,
  LLP

  
	
   

  	
   

  	
  195 Route 9 South,
  Suite 204

  
	
   

  	
   

  	
  Manalapan, New Jersey
  07726

  
	
   

  	
   

  	
  Telephone No.:

  	
   (732) 409-1212

  
	
   

  	
   

  	
  Facsimile No.:

  	
  (732) 577-1188

  
	
   

  	
   

  	
  Attention:

  	
  Joseph M. Lucosky, Esq.

  
	
   

  	
   

  	
   

  	
  Eric M. Stein, Esq.

  
					



 


or such other address as may be designated in
writing hereafter, in the same manner, by such Person.


 


22

















 


6.4           Amendments;
Waivers; No Additional Consideration. 
No provision of this Agreement may be waived or amended except in a
written instrument signed, in the case of an amendment, by the Company and each
of the Purchasers holding or having the right to acquire a majority of the
Securities on a fully-diluted basis at the time of such amendment, provided
that Vision shall be a part of such consenting majority with respect to any
amendments to Sections 4.3, 4.7, 4.8, 4.11, 4.14, 4.15 or 6.20 or, in the case
of a waiver, by the party against whom enforcement of any such waiver is sought.  No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right. 
No consideration shall be offered or paid to any Purchaser to amend or
consent to a waiver or modification of any provision of any Transaction
Document unless the same consideration is also offered to all Purchasers who
then hold Securities.


 


6.5           Construction.  The headings herein are for convenience only,
do not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.  The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict
construction will be applied against any party. 
This Agreement shall be construed as if drafted jointly by the parties,
and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provisions of this Agreement or any of
the Transaction Documents.


 


6.6           Successors
and Assigns.  The provisions of this
Agreement shall inure to the benefit of and be binding upon the parties and
their successors and permitted assigns. 
This Agreement, or any rights or obligations hereunder, may not be
assigned by the Company without the prior written consent of the
Purchasers.  Any Purchaser may assign its
rights hereunder in whole or in part to any Person to whom such Purchaser
assigns or transfers any Securities in compliance with the Transaction
Documents and applicable law, provided such transferee shall agree in writing
to be bound, with respect to the transferred Securities, by the terms and
conditions of this Agreement that apply to the “Purchasers”.


 


6.7           No Third-Party Beneficiaries.  This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person.


 


6.8           Governing
Law.  All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by and construed and enforced in accordance with the internal laws
of the State of Delaware, without regard to the principles of conflicts of law
thereof.  Each party agrees that all
Proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents
(whether brought against a party hereto or its respective Affiliates, employees
or agents) shall be commenced exclusively in the applicable courts located in
the State of Delaware.  Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the applicable
courts located in the State of Delaware for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of any of the
Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any Proceeding, any claim that it is not personally subject to the
jurisdiction of any such courts located in the State of Delaware, or that such
Proceeding has been commenced in an improper or inconvenient forum.  Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any such
Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof.  Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner
permitted by law.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF 


 


23

















 


OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.


 


6.9           Survival.  Subject to applicable statute of limitations,
the representations, warranties, agreements and covenants contained herein
shall survive the Closing and the delivery of the Shares and Warrants, except
that the representations and warranties contained herein shall terminate upon
the three-year anniversary of the Closing Date.


 


6.10         Execution.  This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered 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
signature page were an original thereof.


 


6.11         Severability.  If any provision of this Agreement is held to
be invalid or unenforceable in any respect, the validity and enforceability of
the remaining terms and provisions of this Agreement shall not in any way be
affected or impaired thereby and the parties will attempt to agree upon a valid
and enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.


 


6.12         Replacement
of Securities.  If any certificate or
instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for
and upon cancellation thereof, or in lieu of and substitution therefor, a new
certificate or instrument, but only upon receipt of evidence reasonably
satisfactory to the Company and the Transfer Agent of such loss, theft or
destruction and the execution by the holder thereof of a customary lost
certificate affidavit of that fact and an agreement to indemnify and hold
harmless the Company and the Transfer Agent for any losses in connection
therewith or, if required by the Transfer Agent, a bond in such form and amount
as is required by the Transfer Agent. 
The applicants for a new certificate or instrument under such
circumstances shall also pay any reasonable third-party costs associated with
the issuance of such replacement Securities. 
If a replacement certificate or instrument evidencing any Securities is
requested due to a mutilation thereof, the Company may require delivery of such
mutilated certificate or instrument as a condition precedent to any issuance of
a replacement.


 


6.13         Remedies.  In addition to being entitled to exercise all
rights provided herein or granted by law, including recovery of damages, each
of the Purchasers and the Company will be entitled to specific performance
under the Transaction Documents.  The
parties agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agree to waive in any action for specific performance of
any such obligation (other than in connection with any action for a temporary
restraining order) the defense that a remedy at law would be adequate.


 


6.14         Payment
Set Aside.  To the extent that the
Company makes a payment or payments to any Purchaser pursuant to any
Transaction Document or a Purchaser enforces or exercises its rights
thereunder, and such payment or payments or the proceeds of such enforcement or
exercise or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, recovered from, disgorged by or are
required to be refunded, repaid or otherwise restored to the Company, a
trustee, receiver or any other person under any law (including, without
limitation, any bankruptcy law, state or federal law, common law or equitable
cause of action), then to the extent of any such restoration the obligation or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.


 


24

















 


6.15         Adjustments
in Common Stock Numbers and Prices. 
In the event of any stock split, subdivision, dividend or distribution
payable in shares of Common Stock (or other securities or rights convertible
into, or entitling the holder thereof to receive directly or indirectly shares
of Common Stock), combination or other similar recapitalization or event
occurring after the date hereof and prior to the Closing, each reference in any
Transaction Document to a number of shares or a price per share shall be deemed
to be amended to appropriately account for such event.


 


6.16         Independent
Nature of Purchasers’ Obligations and Rights.  The obligations of each Purchaser under any
Transaction Document are several and not joint with the obligations of any
other Purchaser, and no Purchaser shall be responsible in any way for the
performance of the obligations of any other Purchaser under any Transaction
Document.  The decision of each Purchaser
to purchase Securities pursuant to the Transaction Documents has been made by
such Purchaser independently of any other Purchaser and independently of any
information, materials, statements or opinions as to the business, affairs,
operations, assets, properties, liabilities, results of operations, condition
(financial or otherwise) or prospects of the Company or any Subsidiary which may
have been made or given by any other Purchaser or by any agent or employee of
any other Purchaser, and no Purchaser and any of its agents or employees shall
have any liability to any other Purchaser (or any other Person) relating to or
arising from any such information, materials, statement or opinions.  Nothing contained herein or in any
Transaction Document, and no action taken by any Purchaser pursuant 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 or as a group with respect to such
obligations or the transactions contemplated by the Transaction Documents.  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 Securities or
enforcing its rights under the Transaction Documents.  Each Purchaser shall be entitled to
independently protect and enforce its rights, including without limitation the
rights arising out of this Agreement or out of the other Transaction Documents,
and it shall not be necessary for any other Purchaser to be joined as an
additional party in any proceeding for such purpose.  Each Purchaser has had the opportunity to
obtain its own separate legal counsel in its review and negotiation of the Transaction
Documents.  The Company has elected to
provide all Purchasers with the same terms and Transaction Documents for the
convenience of the Company and not because it was required or requested to do
so by any Purchaser.


 


6.17         Termination.  This Agreement may be terminated and the sale
and purchase of the Shares and Warrants abandoned at any time prior to the
Closing by either the Company or any Purchaser (with respect to itself only)
upon written notice to the other, if the Closing has not been consummated on or
prior to 5:00 p.m., New York City time, on the Outside Date; provided, however , that the right to
terminate this Agreement under this Section 6.17 shall not be available to
any Person whose failure to comply with its obligations under this Agreement
has been the cause of or resulted in the failure of the Closing to occur on or
before such time.  Nothing in this Section 6.17
shall be deemed to release any party from any liability for any breach by such
party of the terms and provisions of this Agreement or the other Transaction
Documents or to impair the right of any party to compel specific performance by
any other party of its obligations under this Agreement or the other
Transaction Documents.  In the event of a
termination pursuant to this Section, the Company shall promptly notify all
non-terminating Purchasers.  Upon a
termination in accordance with this Section, the Company and the terminating
Purchaser(s) shall not have any further obligation or liability (including
arising from such termination) to the other, and no Purchaser will have any
liability to any other Purchaser under the Transaction Documents as a result
therefrom.


 


25

















 


6.18         Waiver
of Conflicts.  Each party to this
Agreement acknowledges that Company Counsel, outside general counsel to the
Company, may have in the past performed and may now or in the future represent
one or more Purchasers or their affiliates in matters unrelated to the
transactions contemplated by the Transaction Documents, including
representation of such Purchasers or their affiliates in matters of a similar
nature to the transactions contemplated by the Transaction Documents.  The applicable rules of professional
conduct require that Company Counsel inform the parties hereunder of this
representation and obtain their consent. 
Company Counsel has served as outside general counsel to the Company and
has negotiated the terms of the transactions contemplated by the Transaction
Documents solely on behalf of the Company. 
The Company and each Purchaser hereby (a) acknowledge that they
have had an opportunity to ask for and have obtained information relevant to
such representation, including disclosure of the reasonably foreseeable adverse
consequences of such representation; (b) acknowledge that with respect to
the transactions contemplated by the Transaction Documents, Company Counsel has
represented solely the Company, and not any Purchaser or any stockholder,
director or employee of the Company or any Purchaser; and (c) gives its
informed consent to Company Counsel’s representation of the Company in the
transactions contemplated by the Transaction Documents.


 


6.19         Rescission
and Withdrawal Right. 
Notwithstanding anything to the contrary contained in (and without
limiting any similar provisions of) the Transaction Documents, whenever any
Investor exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within
the periods therein provided, then such Investor may rescind or withdraw, in
its sole discretion from time to time upon written notice to the Company, any
relevant notice, demand or election in whole or in part without prejudice to
its future actions and rights.


 


6.20         Equal
Treatment of Purchasers.  No
consideration shall be offered or paid to any Person to amend or consent to a
waiver or modification of any provision of this Agreement or the Warrants
unless the same consideration is also offered to all of the parties to this
Agreement.  For clarification purposes,
this provision constitutes a separate right granted to each Purchaser by the
Company and negotiated separately by each Purchaser, and is intended for the
Company to treat the Purchasers as a class and shall not in any way be
construed as the Purchasers acting in concert or as a group with respect to the
purchase, disposition or voting of Securities or otherwise.


 


6.21         Aggregation
of Stock.  All Securities held or
acquired by affiliated Persons under common management or control shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement and the Transaction Documents.


 


6.22         Limitation of Liability.  Notwithstanding anything herein to the
contrary, the Company acknowledges and agrees that the liability of a Purchaser
arising directly or indirectly under any of the Transaction Documents of any
and every nature whatsoever shall be satisfied solely out of the assets of such
Purchaser, and that no trustee, officer, other investment vehicle or any other
affiliate of such Purchaser  or any
investor, shareholder or holder of shares of beneficial interest of such a
Purchaser shall be personally liable for any liabilities of such Purchaser.


 


26

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.


 


	
   

  	
  HELICOS BIOSCIENCES CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

[SIGNATURE PAGES FOR PURCHASERS FOLLOW]


 

















 


	
   

  	
  NAME OF PURCHASER:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Aggregate Purchase Price
  (Subscription Amount): $               

  
	
   

  	
   

  
	
   

  	
  Number of Shares to be Acquired: 

  	
   

  
	
   

  	
   

  
	
   

  	
  Underlying Shares Subject to Warrant: 

  	
   

  
	
   

  	
  (60.0% of the number of
  Shares to be acquired)

  
	
   

  	
   

  
	
   

  	
  Tax ID No.:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address
  for Notice:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Facsimile No.:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  E-mail Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
											



 


	
  Delivery Instructions:

  	
   

  
	
   

  	
   

  
	
  (if different than above)

  	
   

  
	
   

  	
   

  
	
  c/o

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Street:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  City/State/Zip:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Telephone No.:

  	
   

  	
   

  
							



 

















 


EXHIBITS


 


	
  A:

  	
  Form of
  Warrant

  
	
  B-1:

  	
  Accredited
  Investor Questionnaire

  
	
  B-2:

  	
  Stock
  Certificate and Warrant Questionnaire

  
	
  C:

  	
  Wire
  Instructions

  
	
  D:

  	
  Form of
  Registration Rights Agreement

  



 


SCHEDULES


 


3.1(a) Subsidiaries


3.1(r) Patents and
Trademarks


3.1(u) Certain Fees


 

















 


EXHIBIT A


 


Form of Warrant


 
















 


EXHIBIT B-1


 


ACCREDITED INVESTOR QUESTIONNAIRE


 


(ALL INFORMATION WILL BE TREATED
CONFIDENTIALLY)


 


To:          Helicos BioSciences Corporation


 


This Investor Questionnaire (“Questionnaire”)
must be completed by each potential investor in connection with the offer and
sale of shares of common stock, par value $0.001 per share, and shares of
common stock that may be issued upon exercise of certain warrants
(collectively, the “Securities”), of Helicos BioSciences Corporation, a
Delaware corporation (the “Corporation”).  The Securities are being offered and sold by
the Corporation without registration under the Securities Act of 1933, as
amended (the “Act”), and the securities laws of certain states, in
reliance on the exemptions contained in Section 4(2) of the Act and
on Regulation D promulgated thereunder and in reliance on similar exemptions
under applicable state laws.  The
Corporation must determine that a potential investor meets certain suitability
requirements before offering or selling Securities to such investor.  The purpose of this Questionnaire is to
assure the Corporation that each investor will meet the applicable suitability
requirements.  The information supplied
by you will be used in determining whether you meet such criteria, and reliance
upon the private offering exemptions from registration is based in part on the
information herein supplied.


 


This Questionnaire does not constitute an offer to
sell or a solicitation of an offer to buy any security.  Your answers will be kept strictly
confidential.  However, by signing this
Questionnaire, you will be authorizing the Corporation to provide a completed
copy of this Questionnaire to such parties as the Corporation deems appropriate
in order to ensure that the offer and sale of the Securities will not result in
a violation of the Act or the securities laws of any state and that you
otherwise satisfy the suitability standards applicable to purchasers of the
Securities.  All potential investors must
answer all applicable questions and complete, date and sign this
Questionnaire.  Please print or type your
responses and attach additional sheets of paper if necessary to complete your
answers to any item.


 


PART A.                BACKGROUND INFORMATION


 


	
  Name of Beneficial Owner of the Securities:

  	
   

  
	
   

  
	
  Business Address:

  	
   

  
	
   

  	
  (Number and Street)

  
	
   

  
	
   

  	
   

  	
   

  
	
  (City)

  	
  (State)

  	
  (Zip
  Code)

  
	
   

  
	
  Telephone Number: (      )  

  	
   

  
	
   

  	
   

  
	
  If a corporation, partnership, limited liability company,
  trust or other entity:

  
	
   

  
	
  Type
  of entity: 

  	
   

  
	
   

  	
   

  
	
  State of formation:

  	
   

  	
   

  	
  Approximate Date of formation: 

  	
   

  
											



 


Were you formed for the purpose of investing in the securities being
offered?


 




	
  Yes
  o

  	
  No
  o

  






 

















 


If an individual:


 


	
  Residence Address:

  	
   

  
	
   

  	
  (Number and Street)

  
	
   

  
	
   

  	
   

  	
   

  
	
  (City)

  	
  (State)

  	
  (Zip
  Code)

  
	
   

  	
   

  
	
  Telephone Number: (      )  

  	
   

  
	
   

  	
   

  
	
  Age: 

  	
   

  	
   

  	
  Citizenship: 

  	
   

  	
   

  	
  Where registered to vote: 

  	
   

  
	
   

  
												



 


Set
forth in the space provided below the state(s), if any, in the United States in
which you maintained your residence during the past two years and the dates
during which you resided in each state:


 


Are you a director or executive officer of the Corporation?


 




	
  Yes
  o

  	
  No
  o

  






 


Social Security or Taxpayer Identification No. 
                                                                                                          


 


PART B.                ACCREDITED INVESTOR
QUESTIONNAIRE


 


In
order for the Company to offer and sell the Securities in conformance with
state and federal securities laws, the following information must be obtained
regarding your investor status.  Please initial
each category  applicable to
you as a Purchaser of Securities
of the Company.


 


	
  o

  	
  (1)

  	
  A bank as defined in Section 3(a)(2) of
  the Securities Act, or any savings and loan association or other institution
  as defined in Section 3(a)(5)(A) of the Securities Act whether
  acting in its individual or fiduciary capacity;

  
	
   

  	
   

  	
   

  
	
  o

  	
  (2)

  	
  A broker or dealer registered pursuant to
  Section 15 of the Securities Exchange Act of 1934;

  
	
   

  	
   

  	
   

  
	
  o

  	
  (3)

  	
  An insurance company as defined in
  Section 2(13) of the Securities Act;

  
	
   

  	
   

  	
   

  
	
  o

  	
  (4)

  	
  An investment company registered under the
  Investment Company Act of 1940 or a business development company as defined
  in Section 2(a)(48) of that Act;

  
	
   

  	
   

  	
   

  
	
  o

  	
  (5)

  	
  A Small Business Investment Company licensed by
  the U.S. Small Business Administration under Section 301(c) or
  (d) of the Small Business Investment Act of 1958;

  
	
   

  	
   

  	
   

  
	
  o

  	
  (6)

  	
  A plan established and maintained by a state, its
  political subdivisions, or any agency or instrumentality of a state or its
  political subdivisions, for the benefit of its employees, if such plan has
  total assets in excess of $5,000,000;

  



 

















 


	
  o

  	
  (7)

  	
  An employee benefit plan within the meaning of the
  Employee Retirement Income Security Act of 1974, if the investment decision
  is made by a plan fiduciary, as defined in Section 3(21) of such act,
  which is either a bank, savings and loan association, insurance company, or
  registered investment adviser, or if the employee benefit plan has total
  assets in excess of $5,000,000 or, if a self-directed plan, with investment
  decisions made solely by persons that are accredited investors;

  
	
   

  	
   

  	
   

  
	
  o

  	
  (8)

  	
  A private business development company as defined
  in Section 202(a)(22) of the Investment Advisers Act of 1940;

  
	
   

  	
   

  	
   

  
	
  o

  	
  (9)

  	
  An organization described in
  Section 501(c)(3) of the Internal Revenue Code, a corporation,
  Massachusetts or similar business trust, or partnership, not formed for the
  specific purpose of acquiring the Securities, with total assets in excess of
  $5,000,000;

  
	
   

  	
   

  	
   

  
	
  o

  	
  (10)

  	
  A trust, with total assets in excess of
  $5,000,000, not formed for the specific purpose of acquiring the Securities, whose purchase is directed by a
  sophisticated person who has such knowledge and experience in financial and
  business matters that such person is capable of evaluating the merits and
  risks of investing in the Company;

  
	
   

  	
   

  	
   

  
	
  o

  	
  (11)

  	
  A
  natural person whose individual net worth, or joint net worth with that
  person’s spouse, at the time of his purchase exceeds $1,000,000;

  
	
   

  	
   

  	
   

  
	
  o

  	
  (12)

  	
  A
  natural person who had an individual income in excess of $200,000 in each of
  the two most recent years, or joint income with that person’s spouse in excess
  of $300,000, in each of those years, and has a reasonable expectation of
  reaching the same income level in the current year;

  
	
   

  	
   

  	
   

  
	
  o

  	
  (13)

  	
  An executive officer or director of the Company;

  
	
   

  	
   

  	
   

  
	
  o

  	
  (14)

  	
  An entity in which all of the equity owners
  qualify under any of the above subparagraphs. If the undersigned belongs to
  this investor category only, list the equity owners of the undersigned, and
  the investor category which each such equity owner satisfies.

  



 


A.            FOR
EXECUTION BY AN INDIVIDUAL:


 


	
   

  	
   

  	
  By

  	
   

  
	
  Date

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
   

  
					



 


B.            FOR
EXECUTION BY AN ENTITY:


 


	
   

  	
   

  	
  Entity Name: 

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By

  	
   

  
	
  Date

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Print
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
								



 

















 


C.            ADDITIONAL
SIGNATURES (if required by partnership, corporation or trust document):


 


	
   

  	
   

  	
  Entity Name:  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By

  	
   

  
	
  Date

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Print
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
								



 


 


	
   

  	
   

  	
  Entity Name:  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By

  	
   

  
	
  Date

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Print
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
									



 

















 


EXHIBIT B-2


 


Stock Certificate
Questionnaire


 


Pursuant
to Section 2.2(b) of the Agreement, please provide us with the
following information:


 


	
  1.

  	
  The exact name that the
  Securities are to be registered in (this is the name that will appear on the
  stock certificate(s) and warrant(s)). You may use a nominee name if
  appropriate:

  	
                                                 

  
	
   

  	
   

  	
   

  
	
  2.

  	
  The relationship between
  the Purchaser of the Securities and the Registered Holder listed in response
  to Item 1 above:

  	
                                                 

  
	
   

  	
   

  	
   

  
	
  3.

  	
  The mailing address,
  telephone and telecopy number of the Registered Holder listed in response to
  Item 1 above:

  	
                                                 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
                                                 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
                                                 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
                                                 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
                                                 

  
	
   

  	
   

  	
   

  
	
  4.

  	
  The Tax Identification
  Number (or, if an individual, the Social Security Number) of the Registered
  Holder listed in response to Item 1 above:

  	
                                                 

  



 

















 


EXHIBIT C


 


Wire Instructions


 


JPMorgan
Chase Bank


ABA
# 021000021


Account
No.:  796700755


Account Name: 
Helicos BioSciences Corporation Subscription


 

















 


EXHIBIT D


 


Form of Registration
Rights Agreement


 

















 


Schedule
3.1(a)


 


Subsidiaries


 


	
  Name

  	
   

  	
  Jurisdiction of Organization

  
	
   

  	
   

  	
   

  
	
  Helicos
  BioSciences Securities Corporation

  	
   

  	
  Massachusetts

  



 

















 


Schedule 3.1(r)


 


Patents and Trademarks


 


In August 2006, the Company filed with the
European Patent Office an opposition against European Patent No. EP 1 105
529 B1 (“the ‘529 Patent”).  On January 24,
2007, the patent owner sought to amend certain claims of the ‘529 Patent, and
on February 11, 2008 the European Patent Office issued a preliminary
non-binding opinion regarding various arguments made by the parties and set the
matter for oral hearing.  The Company
elected not to participate in the oral hearing, which occurred on October 16,
2008.  On November 4, 2008, the
European Patent Office issued a decision stating that the patent was maintained
as amended.  The Company believes that it
has meritorious defenses should the patent claims be asserted against it in
Europe.  Nevertheless, patent litigation
is complex and the Company cannot guarantee that any case involving the ‘529
Patent would be resolved in a manner favorable to the Company.  If the owner of the ‘529 Patent were to
assert the patent against the Company in Europe, and the Company’s defenses
were unsuccessful, the patent could materially adversely affect the Company’s
ability to market and sell its products in Europe, which in turn could have a
material adverse effect on the Company’s business, operating results, or
financial conditions.


 

















 


Schedule 3.1(u)


 


Certain Fees


 


The Company will be
obligated to pay certain fees to Leerink Swann LLC