REGISTRATION RIGHTS AGREEMENT
Exhibit 9
EXECUTION COPY
This Registration Rights Agreement (this “Agreement”) is made and entered into as of September
15, 2009, by and among Helicos BioSciences Corporation, a Delaware corporation (the “Company”), and
the several purchasers signatory hereto (each a “Purchaser” and collectively, the “Purchasers”).
This Agreement is made pursuant to the Securities Purchase Agreement, dated as of the date
hereof between the Company and each Purchaser (the “Purchase Agreement”).
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the Company and each of the Purchasers agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein that are
defined in the Purchase Agreement shall have the meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms shall have the following meanings:
“Advice” shall have the meaning set forth in Section 6(c).
“Affiliate” means, with respect to any person, any other person which directly or indirectly
controls, is controlled by, or is under common control with, such person.
“Agreement” shall have the meaning set forth in the Preamble.
“Business Day” means a day, other than a Saturday or Sunday, on which banks in New York City
are open for the general transaction of business.
“Closing” has the meaning set forth in the Purchase Agreement.
“Closing Date” has the meaning set forth in the Purchase Agreement.
“Commission” means the Securities and Exchange Commission.
“Common Stock” means the common stock of the Company, par value $0.001 per share, and any
securities into which such shares of common stock may hereinafter be reclassified.
“Company” shall have the meaning set forth in the Preamble.
“Effective Date” means the date that the Registration Statement filed pursuant to Section 2(a)
is first declared effective by the Commission.
“Effectiveness Deadline” means, with respect to the Initial Registration Statement or the New
Registration Statement, the 45th calendar day following the Closing Date (or, in the
event the Commission reviews and has written comments to the Initial Registration Statement or the
New Registration Statement, the 75th calendar day following the Closing Date); provided,
however, that if the Company is notified by the Commission that the Initial Registration Statement
will not be reviewed or is no longer subject to further review and comments, the Effectiveness
Deadline as to such Registration Statement shall be the fifth (5th) Trading Day
following the date on which the Company is so notified if
such date precedes the dates otherwise required above; provided, further, that if the
Effectiveness Deadline falls on a Saturday, Sunday or other day that the Commission is closed for
business, the Effectiveness Deadline shall be extended to the next Business Day on which the
Commission is open for business. With respect to any Remainder Registration Statement, the
45th calendar day following the date that the Company is eligible to file such Remainder
Registration Statement pursuant to SEC Guidance (or, in the event the Commission reviews and has
written comments to the Remainder Registration Statement, the 75th calendar day
following the date that the Company is eligible to file such Remainder Registration Statement
pursuant to SEC Guidance); provided, however, that if the Company is notified by the Commission
that the Remainder Registration Statement will not be reviewed or is no longer subject to further
review and comments, the Effectiveness Deadline as to such Remainder Registration Statement shall
be the fifth (5th) Trading Day following the date on which the Company is so notified if
such date precedes the dates otherwise required above; provided, further, that if the Effectiveness
Deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the
Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open
for business.
“Effectiveness Period” shall have the meaning set forth in Section 2(b).
“Event” shall have the meaning set forth in Section 2(c).
“Event Date” shall have the meaning set forth in Section 2(c).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Filing Deadline” means, with respect to the Initial Registration Statement required to be
filed pursuant to Section 2(a), the 15th calendar day following the Closing Date,
provided, however, that if the Filing Deadline falls on a Saturday, Sunday or other day that the
Commission is closed for business, the Filing Deadline shall be extended to the next business day
on which the Commission is open for business. With respect to any Remainder Registration
Statement, the 15th calendar day following the date that the Company is eligible to file
such Remainder Registration Statement pursuant to SEC Guidance, provided, however, that if the
Filing Deadline falls on a Saturday, Sunday or other day that the Commission is closed for
business, the Filing Deadline shall be extended to the next business day on which the Commission is
open for business.
“Holder” or “Holders” means the holder or holders, as the case may be, from time to time of
Registrable Securities.
“Indemnified Party” shall have the meaning set forth in Section 5(c).
“Indemnifying Party” shall have the meaning set forth in Section 5(c).
“Initial Registration Statement” means the initial Registration Statement filed pursuant to
Section 2(a) of this Agreement.
“Liquidated Damages” shall have the meaning set forth in Section 2(c).
“Losses” shall have the meaning set forth in Section 5(a).
“New Registration Statement” shall have the meaning set forth in Section 2(a).
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“Person” means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any kind.
“Principal Market” means the Trading Market on which the Common Stock is primarily listed on
and quoted for trading, which, as of the Closing Date, shall be the NASDAQ Global Market.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“Prospectus” means the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by a Registration Statement,
and all other amendments and supplements to the Prospectus, including post-effective amendments,
and all material incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
“Purchase Agreement” shall have the meaning set forth in the Recitals.
“Purchaser” or “Purchasers” shall have the meaning set forth in the Preamble.
“Registrable Securities” means all of (i) the Shares, (ii) the Warrant Shares and (iii) any
securities issued or issuable upon any stock split, dividend or other distribution,
recapitalization or similar event with respect to the foregoing, provided, that the Holder has
completed and delivered to the Company a Selling Stockholder Questionnaire; and provided, further,
that Shares and Warrant Shares shall cease to be Registrable Securities upon the earliest to occur
of the following: (A) a sale pursuant to an effective Registration Statement or Rule 144 under the
Securities Act (in which case, only such security sold shall cease to be a Registrable Security);
or (B) becoming eligible for sale without the requirement for the Company to be in compliance with
the current public information required under Rule 144 and without volume or manner of sale
restrictions by Holders who are not Affiliates of the Company in a written opinion letter to such
effect, addressed, delivered and acceptable to the Transfer Agent and the affected Holders
(assuming that such securities and any securities issuable upon exercise, conversion or exchange of
which, or as a dividend upon which, such securities were issued or are issuable, and all Warrants
are exercised by “cashless exercise” as provided in each of the Warrants), as reasonably determined
by the Company, upon the advice of counsel to the Company.
“Registration Statements” means any one or more registration statements of the Company filed
under the Securities Act that covers the resale of any of the Registrable Securities pursuant to
the provisions of this Agreement (including without limitation the Initial Registration Statement,
the New Registration Statement and any Remainder Registration Statements), amendments and
supplements to such Registration Statements, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by reference in such
Registration Statements.
“Remainder Registration Statement” shall have the meaning set forth in Section 2(a).
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
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“Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“SEC Guidance” means (i) any publicly-available written or oral guidance, comments,
requirements or requests of the Commission staff and (ii) the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Selling Stockholder Questionnaire” means a questionnaire in the form attached as Annex
B hereto, or such other form of questionnaire as may reasonably be adopted by the Company from
time to time.
“Shares” means the shares of Common Stock issued or issuable to the Purchasers pursuant to the
Purchase Agreement.
“Trading Day” means (i) a day on which the Common Stock is listed or quoted and traded on its
Principal Market (other than the OTC Bulletin Board), or (ii) if the Common Stock is not listed on
a Trading Market (other than the OTC Bulletin Board), a day on which the Common Stock is traded in
the over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if the Common Stock is
not quoted on any Trading Market, a day on which the Common Stock is quoted in the over-the-counter
market as reported in the “pink sheets” by Pink Sheets LLC (or any similar organization or agency
succeeding to its functions of reporting prices); provided, that in the event that the Common Stock
is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day shall mean a
Business Day.
“Trading Market” means whichever of the New York Stock Exchange, the American Stock Exchange,
the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market or OTC
Bulletin Board on which the Common Stock is listed or quoted for trading on the date in question.
“Warrants” means the Warrants issued pursuant to the Purchase Agreement.
“Warrant Shares” means the shares of Common Stock issued or issuable upon exercise of the
Warrants.
2. Registration.
(a) On or prior to the Filing Deadline, the Company shall prepare and file with the Commission
a Registration Statement covering the resale of all of the Registrable Securities not already
covered by an existing and effective Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 (the “Initial Registration Statement”). The Initial
Registration Statement shall be on Form S-3 (except if the Company is then ineligible to register
for resale of the Registrable Securities on Form S-3, in which case such registration shall be on
such other form available to register for resale of the Registrable Securities as a secondary
offering) subject to the provisions of Section 2(f) and shall contain (except if otherwise required
pursuant to written comments received from the
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Commission upon a review of such Registration Statement) the “Plan of Distribution” section
attached hereto as Annex A. Notwithstanding the registration obligations set forth in this
Section 2, in the event the Commission informs the Company that all of the Registrable Securities
cannot, as a result of the application of Rule 415, be registered for resale as a secondary
offering on a single registration statement, the Company agrees to promptly (i) inform each of the
Holders thereof and use its commercially reasonable efforts to file amendments to the Initial
Registration Statement as required by the Commission and/or (ii) withdraw the Initial Registration
Statement and file a new registration statement (a “New Registration Statement”), in either case
covering the maximum number of Registrable Securities permitted to be registered by the Commission,
on Form S-3 or such other form available to register for resale the Registrable Securities as a
secondary offering; provided, however, that prior to filing such amendment or New Registration
Statement, the Company shall be obligated to use its commercially reasonable efforts to advocate
with the Commission for the registration of all of the Registrable Securities in accordance with
the SEC Guidance, including without limitation, the Manual of Publicly Available Telephone
Interpretations D.29. Notwithstanding any other provision of this Agreement and subject to the
payment of liquidated damages in Section 2(c), if any SEC Guidance sets forth a limitation of the
number of Registrable Securities permitted to be registered on a particular Registration Statement
as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate
with the Commission for the registration of all or a greater number of Registrable Securities),
unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of
Registrable Securities to be registered on such Registration Statement will first be reduced by
Registrable Securities not acquired pursuant to the Purchase Agreement (whether pursuant to
registration rights or otherwise), second by Registrable Securities represented by holders of
Warrant Shares (applied, in the case that some Warrant Shares may be registered, to the Holders on
a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders),
and third by Registrable Securities represented by Shares (applied, in the case that some Shares
may be registered, to the Holders on a pro rata basis based on the total number of unregistered
Shares held by such Holders). The foregoing sentence is subject to a determination by the
Commission that certain Holders must be reduced first based on the number of Shares held by such
Holders. The Company shall confirm with each Holder that, with respect to any Registrable
Securities that are required to be reduced, the Registrable Securities held by such Holder shall be
reduced first by the Warrant Shares and second by the Shares. In the event the Company is required
to amend the Initial Registration Statement or files a New Registration Statement pursuant to SEC
Guidance, as the case may be, under clauses (i) or (ii) above or otherwise to include additional
Registrable Securities, the Company will use its commercially reasonable efforts to file with the
Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to
registrants of securities in general, one or more registration statements on Form S-3 or such other
form available to register for resale those Registrable Securities that were not registered for
resale on the Initial Registration Statement, as amended, or the New Registration Statement (the
“Remainder Registration Statements”).
(b) The Company shall use its commercially reasonable efforts to cause each Registration
Statement to be declared effective by the Commission as soon as practicable but in no event later
than the Effectiveness Deadline for each the Initial Registration Statement (and any New
Registration Statement, as required) and any Remainder Registration Statements. The Company shall
use its commercially reasonable efforts to keep the Registration Statements continuously effective
under the Securities Act until the earlier of (i) such time as all of the Registrable Securities
covered by such Registration Statement have been publicly sold by the Holders or (ii) the date that
all Registrable Securities covered by such Registration Statement may be sold by non-affiliates
without volume or manner of sale restrictions under Rule 144, without the requirement for the
Company to be in compliance with the current public information requirements under Rule 144, as
determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed
and reasonably acceptable to the Company’s Transfer Agent and the effected Holders (the
“Effectiveness Period”). The Company shall request effectiveness of a Registration Statement as of
5:00 p.m. New York City time on a Trading Day.
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The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf”
format data file of the effectiveness of a Registration Statement within one (1) business day of
the Effective Date. The Company shall, by 9:30 a.m. New York City time on the first Trading Day
after the Effective Date, file a final Prospectus with the Commission, as required by Rule 424(b).
(c) If: (i) any Registration Statement is not filed with the Commission on or prior to its
respective Filing Deadline, including the Initial Registration Statement, a New Registration
Statement or a Remainder Registration Statement, (ii) any Registration Statement, as applicable, is
not declared effective by the Commission (or otherwise does not become effective) for any reason on
or prior to the Effectiveness Deadline or (iii) after its Effective Date, (A) such Registration
Statement ceases for any reason (including without limitation by reason of a stop order, or the
Company’s failure to update the Registration Statement), to remain continuously effective as to all
Registrable Securities for which it is required to be effective or (B) the Holders are not
permitted to utilize the Prospectus therein to resell such Registrable Securities, in the case of
(A) and (B), for more than an aggregate of 30 Trading Days (which need not be consecutive) during
any 12 month period, or (iv) the Company fails to file with the SEC any required reports under
Section 13 or 15(d) of the 1934 Act such that it is not in compliance with Rule 144(c)(1) as a
result of which the Holders who are not affiliates are unable to sell Registrable Securities
without restriction under Rule 144 (or any successor thereto) (any such failure or breach in
clauses (i) through (iv) above being referred to as an “Event,” and, for purposes of clauses (i),
(ii) or (iv), the date on which such Event occurs, or for purposes of clause (iii), the date on
which such 30 Trading Day period is exceeded, being referred to as an “Event Date”), then in
addition to any other rights the Holders may have hereunder or under applicable law, on each such
Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall
not have been cured by such date) until the applicable Event is cured, the Company shall pay to
each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”),
equal to 2.0% of the aggregate purchase price paid by such Holder pursuant to the Purchase
Agreement for any Registrable Securities held by such Holder on the Event Date (except with respect
to an Event pursuant to Section 2(c)(iii) occurring by reason of exceeding the specified thirty
(30) Trading Day Period, in which case the amount of the monthly Liquidated Damages shall be 1.0%
of the aggregate purchase price paid by such Holder pursuant to the Purchase Agreement for any
Registrable Securities held by such Holder on the Event Date), which remedy shall be exclusive of
any other remedies available under this Agreement or under applicable law. The parties agree that
(1) notwithstanding anything to the contrary herein or in the Purchase Agreement, no Liquidated
Damages shall be payable with respect to any period after the expiration of the Effectiveness
Period (it being understood that this sentence shall not relieve the Company of any Liquidated
Damages accruing prior to the Effectiveness Period), and in no event shall the aggregate amount of
Liquidated Damages payable to a Holder exceed, in the aggregate, twelve percent (12%) of the
aggregate purchase price paid by such Holder pursuant to the Purchase Agreement and (2) in no event
shall the Company be liable in any 30-day period for Liquidated Damages under this Agreement in
excess of 2.0% of the aggregate purchase price paid by the Holders pursuant to the Purchase
Agreement. If the Company fails to pay any Liquidated Damages pursuant to this Section 2(c) in
full within five (5) Business Days after the date payable, the Company will pay interest thereon at
a rate of 1.5% per month (or such lesser maximum amount that is permitted to be paid by applicable
law) to the Holder, accruing daily from the date such Liquidated Damages are due until such
amounts, plus all such interest thereon, are paid in full. The Liquidated Damages pursuant to the
terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of
an Event, except in the case of the first Event Date. The Company shall not be liable for
Liquidated Damages under this Agreement as to any Registrable Securities which are not permitted by
the Commission to be included in a Registration Statement due solely to SEC Guidance from the time
that it is determined that such Registrable Securities are not permitted to be registered until
such time as the provisions of this Agreement as to the Remainder Registration Statements required
to be filed hereunder are triggered, in which case the provisions of this Section 2(c) shall once
again apply. In such case, the Liquidated Damages shall be calculated to only apply to the
percentage of Registrable Securities which
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are permitted in accordance with SEC Guidance to be included in such Registration Statement.
The Company may require, from time to time, information by a Holder that is necessary to complete
the Registration Statement in accordance with the requirements of the Securities Act. In the event
of the failure by such Holder to comply with the Company’s request within fifteen (15) days from
the date of such request, the Company shall be permitted to exclude such Holder from a Registration
Statement, without being subject to the payment of Liquidated Damages to such Holder. At such time
that such Holder complies with the Company’s request the Company shall use its best efforts to
include such Holder on the Registration Statement.
(d) Each Holder agrees to furnish to the Company a completed Selling Stockholder Questionnaire
not more than five (5) Trading Days following the date of this Agreement. At least ten (10) Trading
Days prior to the first anticipated filing date of a Registration Statement for any registration
under this Agreement, the Company will notify each Holder of the information the Company requires
from that Holder other than the information contained in the Selling Stockholder Questionnaire, if
any, which shall be completed and delivered to the Company promptly upon request and, in any event,
within three (3) Trading Days prior to the applicable anticipated filing date. Each Holder further
agrees that it shall not be entitled to be named as a selling securityholder in the Registration
Statement or use the Prospectus for offers and resales of Registrable Securities at any time,
unless such Holder has returned to the Company a completed and signed Selling Stockholder
Questionnaire and a response to any requests for further information as described in the previous
sentence. If a Holder of Registrable Securities returns a Selling Stockholder Questionnaire or a
request for further information, in either case, after its respective deadline, the Company shall
use its commercially best efforts at the expense of the Holder who failed to return the Selling
Stockholder Questionnaire or to respond for further information to take such actions as are
required to name such Holder as a selling security holder in the Registration Statement or any
pre-effective or post-effective amendment thereto and to include (to the extent not theretofore
included) in the Registration Statement the Registrable Securities identified in such late Selling
Stockholder Questionnaire or request for further information. Each Holder acknowledges and agrees
that the information in the Selling Stockholder Questionnaire or request for further information as
described in this Section 2(d) will be used by the Company in the preparation of the Registration
Statement and hereby consents to the inclusion of such information in the Registration Statement.
(e) [Reserved.]
(f) In the event that Form S-3 is not available for the registration of the resale of
Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable
Securities on another appropriate form reasonably acceptable to the Holders and (ii) undertake to
register the Registrable Securities on Form S-3 promptly after such form is available, provided
that the Company shall maintain the effectiveness of the Registration Statement then in effect
until such time as a Registration Statement on Form S-3 covering the Registrable Securities has
been declared effective by the Commission.
(g) To the extent that a Holder has the right, pursuant to the terms of an agreement entered
into with the Company prior to the date hereof, to cause the Company to register any securities
issued by the Company (the “Prior Registration Rights”), such Holder hereby waives the Prior
Registration Rights and acknowledges and agrees that the only such registration rights such Holder
has shall be set forth in this Agreement.
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3. Registration Procedures.
In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Not less than five (5) Trading Days prior to the filing of a Registration Statement and
not less than three (3) Trading Day prior to the filing of any related Prospectus or any amendment
or supplement thereto (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K and any similar or successor reports), the Company shall, (i) furnish
to the Holder copies of such Registration Statement, Prospectus or amendment or supplement thereto,
as proposed to be filed, which documents will be subject to the review of such Holder (it being
acknowledged and agreed that if a Holder does not object to or comment on the aforementioned
documents within such five (5) Trading Day or three (3) Trading Day period, as the case may be,
then the Holder shall be deemed to have consented to and approved the use of such documents), and
(ii) cause its officers and directors, counsel and independent registered public accountants to
respond to such inquiries as shall be reasonably necessary, in the reasonable opinion of respective
counsel to each Holder, to conduct a reasonable investigation within the meaning of the Securities
Act. The Company shall not file any Registration Statement or amendment or supplement thereto in a
form to which a Holder reasonably objects in good faith, provided that, the Company is notified of
such objection in writing within the five (5) Trading Day or three (3) Trading Day period described
above, as applicable.
(b) (i) Prepare and file with the Commission such amendments (including post-effective
amendments) and supplements, to each Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement continuously effective as to the
applicable Registrable Securities for its Effectiveness Period; (ii) cause the related Prospectus
to be amended or supplemented by any required Prospectus supplement (subject to the terms of this
Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond as
promptly as reasonably practicable to any comments received from the Commission with respect to
each Registration Statement or any amendment thereto and, as promptly as reasonably possible,
provide the Holders true and complete copies of all correspondence from and to the Commission
relating to such Registration Statement other than any information that would result in the
disclosure to the Holders of material and non-public information concerning the Company; and (iv)
comply with the provisions of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Securities covered by a Registration Statement until such time as
all of such Registrable Securities shall have been disposed of (subject to the terms of this
Agreement) in accordance with the intended methods of disposition by the Holders thereof as set
forth in such Registration Statement as so amended or in such Prospectus as so supplemented;
provided, however, that each Purchaser shall be responsible for the delivery of the Prospectus to
the Persons to whom such Purchaser sells any of the Shares or the Warrant Shares (including in
accordance with Rule 172 under the Securities Act), and each Purchaser agrees to dispose of
Registrable Securities in compliance with the plan of distribution described in the Registration
Statement and otherwise in compliance with applicable federal and state securities laws. In the
case of amendments and supplements to a Registration Statement which are required to be filed
pursuant to this Agreement (including pursuant to this Section 3(b)) by reason of the Company
filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Exchange Act,
the Company shall have incorporated such report by reference into such Registration Statement, if
applicable, or shall file such amendments or supplements with the Commission on the same day on
which the Exchange Act report which created the requirement for the Company to amend or supplement
such Registration Statement was filed.
(c) Notify the Holders (which notice shall, pursuant to clauses (iii) through (v) hereof, be
accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have
been made) as promptly as reasonably practicable (and, in the case of (i)(A) below, not less than
two Trading Days prior to such filing, in the case of (iii) and (iv) below, not more than one
Trading Day after
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such issuance or receipt, and in the case of (v) below, not more than one Trading Day after
the occurrence or existence of such development) and (if requested by any such Person) confirm such
notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment to a Registration Statement is proposed to be
filed; (B) when the Commission notifies the Company whether there will be a “review” of such
Registration Statement and whenever the Commission comments in writing on any Registration
Statement (in which case the Company shall provide to each of the Holders true and complete copies
of all comments other than information that the Company believes would constitute material and
non-public information); and (C) with respect to each Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of any request by the Commission or any other
Federal or state governmental authority for amendments or supplements to a Registration Statement
or Prospectus or for additional information that pertains to the Holders as “Selling Stockholders”
or the “Plan of Distribution”; (iii) of the issuance by the Commission or any other federal or
state governmental authority of any stop order suspending the effectiveness of a Registration
Statement covering any or all of the Registrable Securities or the initiation of any Proceedings
for that purpose; (iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for
such purpose; and (v) of the occurrence of any event or passage of time that makes the financial
statements included in a Registration Statement ineligible for inclusion therein or any statement
made in such Registration Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that requires any revisions to
such Registration Statement, Prospectus or other documents so that, in the case of such
Registration Statement or the Prospectus, as the case may be, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of any Prospectus, form of prospectus or
supplement thereto, in light of the circumstances under which they were made), not misleading.
(d) Use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any
suspension of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, as soon as practicable.
(e) If requested by a Holder, furnish to such Holder, without charge, at least one conformed
copy of each Registration Statement and each amendment thereto and all exhibits to the extent
requested by such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission; provided, that the Company shall
have no obligation to provide any document pursuant to this clause that is available on the
Commission’s XXXXX system.
(f) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable
efforts to register or qualify or cooperate with the selling Holders in connection with the
registration or qualification (or exemption from the registration or qualification) of such
Registrable Securities for the resale by the Holder under the securities or Blue Sky laws of such
jurisdictions within the United States as any Holder reasonably requests in writing, to keep each
registration or qualification (or exemption therefrom) effective during the Effectiveness Period
and to do any and all other acts or things reasonably necessary to enable the disposition in such
jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that
the Company shall not be required to qualify generally to do business in any jurisdiction where it
is not then so qualified, subject the Company to any material tax in any such jurisdiction where it
is not then so subject or file a general consent to service of process in any such jurisdiction.
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(g) If requested by the Holders, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to be delivered to a
transferee pursuant to the Registration Statement, which certificates shall be free, to the extent
permitted by the Purchase Agreement and under law, of all restrictive legends, and to enable such
Registrable Securities to be in such denominations and registered in such names as any such Holders
may reasonably request.
(h) Following the occurrence of any event contemplated by Section 3(c)(ii)-(v), as promptly as
reasonably practicable (taking into account the Company’s good faith assessment of any adverse
consequences to the Company and its stockholders of the premature disclosure of such event),
prepare a supplement or amendment, including a post-effective amendment, to the affected
Registration Statements or a supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, and file any other required document so that, as
thereafter delivered, no Registration Statement nor any Prospectus will contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of any Prospectus, form of prospectus or supplement
thereto, in light of the circumstances under which they were made), not misleading.
(i) The Company may require each selling Holder to furnish to the Company a certified
statement as to (i) the number of shares of Common Stock beneficially owned by such Holder and any
Affiliate thereof, (ii) any Financial Industry Regulatory Authority (“FINRA”) affiliations, (iii)
any natural persons who have the power to vote or dispose of the Common Stock and (iv) any other
information as may be requested by the Commission, FINRA or any state securities commission. During
any periods that the Company is unable to meet its obligations hereunder with respect to the
registration of Registrable Securities because any Holder fails to furnish such information within
five Trading Days of the Company’s request, (i) any Liquidated Damages that are accruing at such
time as to such Holder shall only be tolled only with respect to that Holder and only if the
Liquidated Damages were directly caused by such Holder failure to provide such information; and
(ii) any Event that may otherwise occur solely because of such delay shall be suspended as to such
Holder only, until such information is delivered to the Company.
(j) Not permit any securities other than Registrable Securities to be included on any
Registration Statement.
(k) If during the Effectiveness Period, the number of Registrable Securities at any time
exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement,
then the Company shall file as soon as reasonably practicable, but in any case prior to the
applicable Filing Deadline, subject to applicable SEC Guidance, an additional Registration
Statement covering the resale by the Holders of not less than the number of such Registrable
Securities.
(l) Comply with all applicable rules and regulations of the Commission.
4. Registration Expenses. All fees and expenses incident to the Company’s performance
of or compliance with its obligations under this Agreement (excluding any underwriting discounts
and selling commissions and all legal fees and expenses of legal counsel for any Holder) shall be
borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration
Statement. The fees and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation, fees and expenses
(A) with respect to filings required to be made with any Trading Market on which the Common Stock
is then listed for trading, and (B) with respect to compliance with applicable state securities or
Blue Sky laws (including, without limitation, fees and disbursements of counsel for the Company in
connection with Blue Sky qualifications or exemptions of the Registrable Securities and
determination of the eligibility of the Registrable Securities for
10
investment under the laws of such jurisdictions as requested by the Holders)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for Registrable
Securities and of printing prospectuses if the printing of prospectuses is reasonably requested by
the Holders of a majority of the Registrable Securities included in the Registration Statement),
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company, (v) Securities Act liability insurance, if the Company so desires such insurance, and (vi)
fees and expenses of all other Persons retained by the Company in connection with the consummation
of the transactions contemplated by this Agreement. In addition, the Company shall be responsible
for all of its internal expenses incurred in connection with the consummation of the transactions
contemplated by this Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of any annual audit and
the fees and expenses incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder. In no event shall the Company be responsible for any
underwriting, broker or similar fees or commissions of any Holder or, except to the extent provided
for in the Transaction Documents, any legal fees or other costs of the Holders.
5. Indemnification.
(a) Indemnification by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify, defend and hold harmless each Holder, the officers,
directors, agents, partners, members, managers, stockholders, Affiliates and employees (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 each of them, each Person who controls any such Holder
(within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, partners, members, managers, stockholders, agents and employees (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 each such controlling Person, to the fullest extent permitted
by applicable law, from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of preparation and investigation and reasonable
attorneys’ fees) and expenses (collectively, “Losses”), as incurred, that arise out of or are based
upon any untrue or alleged untrue statement of a material fact contained in any Registration
Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in
any preliminary prospectus, or arising out of or relating to any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except to the extent, but only to the
extent, that (A) such untrue statements, alleged untrue statements, omissions or alleged omissions
are based solely upon information regarding such Holder furnished in writing to the Company by such
Holder expressly for use therein, or to the extent that such information relates to such Holder or
such Holder’s proposed method of distribution of Registrable Securities and was reviewed and
approved by such Holder expressly for use in the Registration Statement, such Prospectus or such
form of Prospectus or in any amendment or supplement thereto (it being understood that each Holder
has approved Annex A hereto for this purpose), (B) in the case of an occurrence of an event
of the type specified in Section 3(c)(ii)-(v), related to the use by a Holder of an outdated or
defective Prospectus after the Company has notified such Holder in writing that the Prospectus is
outdated or defective and prior to the receipt by such Holder of the Advice contemplated and
defined in Section 6(c) below, but only if and to the extent that following the receipt of the
Advice the misstatement or omission giving rise to such Loss would have been corrected or (C) any
such Losses arise out of the Purchaser’s (or any other indemnified Person’s) failure to send or
give a copy of the Prospectus or supplement (as then amended or supplemented), if required, to the
Persons asserting an untrue statement or alleged untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the sale of Registrable
Securities to such Person if such statement or omission was corrected in such Prospectus or
supplement. The Company shall notify the Holders promptly of the institution, threat or assertion
of any Proceeding arising from or in connection
11
with the transactions contemplated by this Agreement of which the Company is aware. Such
indemnity shall remain in full force and effect regardless of any investigation made by or on
behalf of an Indemnified Party (as defined in Section 5(c)) and shall survive the transfer of the
Registrable Securities by the Holders.
(b) Indemnification by Holders. Each Holder shall, severally and not jointly,
indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person
who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising
out of or are based upon any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, any Prospectus, or any form of prospectus, or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus, or any form of prospectus or supplement thereto,
in light of the circumstances under which they were made) not misleading (i) to the extent, but
only to the extent, that such untrue statements or omissions are based solely upon information
regarding such Holder furnished in writing to the Company by such Holder expressly for use therein
or (ii) to the extent, but only to the extent, that such information relates to such Holder or such
Holder’s proposed method of distribution of Registrable Securities and was reviewed and approved by
such Holder expressly for use in a Registration Statement (it being understood that the Holder has
approved Annex A hereto for this purpose), such Prospectus or such form of Prospectus or in
any amendment or supplement thereto or (iii) in the case of an occurrence of an event of the type
specified in Section 3(c)(ii)-(v), to the extent, but only to the extent, related to the use by
such Holder of an outdated or defective Prospectus after the Company has notified such Holder in
writing that the Prospectus is outdated or defective and prior to the receipt by such Holder of the
Advice contemplated in Section 6(c). In no event shall the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder
upon the sale of the Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or
asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such
Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying
Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all reasonable fees and expenses incurred in connection with defense thereof; provided,
that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying
Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent
that it shall be finally determined by a court of competent jurisdiction (which determination is
not subject to appeal or further review) that such failure shall have materially and adversely
prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified Party and the Indemnifying Party,
and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely
to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party
(in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects
to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall
not have the right to assume the defense thereof and such counsel
12
shall be at the expense of the Indemnifying Party); provided, that the Indemnifying Party
shall not be liable for the fees and expenses of more than one separate firm of attorneys at any
time for all Indemnified Parties. The Indemnifying Party shall not be liable for any settlement of
any such Proceeding effected without its written consent, which consent shall not be unreasonably
withheld, delayed or conditioned. No Indemnifying Party shall, without the prior written consent
of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any
Indemnified Party is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of such Proceeding, is
solely for monetary damages, and does not contain an admission of wrongdoing on the part of the
Indemnified Party.
Subject to the terms of this Agreement, all fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this Section 5(c)) shall be
paid to the Indemnified Party, as incurred, within twenty Trading Days of written notice thereof to
the Indemnifying Party; provided, that the Indemnified Party shall promptly reimburse the
Indemnifying Party for that portion of such fees and expenses applicable to such actions for which
such Indemnified Party is finally judicially determined to not be entitled to indemnification
hereunder). The failure to deliver written notice to the Indemnifying Party within a reasonable
time of the commencement of any such action shall not relieve such Indemnifying Party of any
liability to the Indemnified Party under this Section 5, except to the extent that the Indemnifying
Party is materially and adversely prejudiced in its ability to defend such action.
(d) Contribution. If a claim for indemnification under Section 5(a) or 5(b) is
unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any
Losses, then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in
such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such action,
statement or omission. The amount paid or payable by a party as a result of any Losses shall be
deemed to include, subject to the limitations set forth in this Agreement, any reasonable
attorneys’ or other reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section 5(d) was available to such party in accordance with
its terms.
The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 5(d) were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually
received by such Holder from the sale of the Registrable Securities subject to the Proceeding
exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
13
The indemnity and contribution agreements contained in this Section 5 are in addition to any
liability that the Indemnifying Parties may have to the Indemnified Parties and are not in
diminution or limitation of the indemnification provisions under the Purchase Agreement.
6. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder of any of their
obligations under this Agreement, each Holder or the Company, as the case may be, in addition to
being entitled to exercise all rights granted by law and under this Agreement, including recovery
of damages, will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.
(b) Compliance. Each Holder covenants and agrees that it will comply with the
prospectus delivery requirements of the Securities Act as applicable to it (unless an exemption
therefrom is available) in connection with sales of Registrable Securities pursuant to the
Registration Statement and shall sell the Registrable Securities only in accordance with a method
of distribution described in the Registration Statement.
(c) Discontinued Disposition. By its acquisition of Registrable Securities, each
Holder agrees that, upon receipt of a notice from the Company of the occurrence of any event of the
kind described in Section 3(c)(ii)-(v), such Holder will forthwith discontinue disposition of such
Registrable Securities under a Registration Statement until it is advised in writing (the “Advice”)
by the Company that the use of the applicable Prospectus (as it may have been supplemented or
amended) may be resumed. The Company may provide appropriate stop orders to enforce the
provisions of this paragraph.
(d) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, or waived unless the
same shall be in writing and signed by the Company and Holders holding a majority of the then
outstanding Registrable Securities, including Holders of at least two-thirds of the then
outstanding Registrable Securities held by Holders who are not Inside Investors (as such term is
defined in the Purchase Agreement), provided that any party may give a waiver as to itself.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of all of the Registrable
Securities to which such waiver or consent relates; provided, however, that the provisions of this
sentence may not be amended, modified, or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(e) Notices. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be delivered as set forth in the Purchase Agreement.
(f) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and shall inure to the
benefit of each Holder. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement. The Company may not assign its rights (except by merger or in
connection with another entity acquiring all or substantially all of the Company’s assets) or
obligations hereunder without the prior written consent of all
14
the Holders of the then outstanding Registrable Securities. Each Holder may assign its
respective rights hereunder in the manner and to the Persons as permitted under the Purchase
Agreement.
(g) Execution and Counterparts. This Agreement may be executed in two or more
counterparts, each of which when so executed shall be deemed to be an original and, all of which
taken together shall constitute one and the same Agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it being understood
that both parties need not sign the same counterpart. In the event that any signature is delivered
by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf” signature were the original
thereof.
(h) Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be determined in accordance with the provisions of the
Purchase Agreement.
(i) Cumulative Remedies. The remedies provided herein are cumulative and not
exclusive of any other remedies provided by law.
(j) Severability. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their good faith reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties
that they would have executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(k) Headings. The headings in this Agreement are for convenience only and shall not
limit or otherwise affect the meaning hereof.
(l) Independent Nature of Purchasers’ Obligations and Rights. The obligations of each
Purchaser under this Agreement are several and not joint with the obligations of any other
Purchaser hereunder, and no Purchaser shall be responsible in any way for the performance of the
obligations of any other Purchaser hereunder. The decision of each Purchaser to purchase the
Shares and Warrants pursuant to the Transaction Documents has been made independently of any other
Purchaser. Nothing contained herein or in any other agreement or document delivered at any closing,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the
Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create
a presumption that the Purchasers are in any way acting in concert with respect to such obligations
or the transactions contemplated by this Agreement. Each Purchaser acknowledges that no other
Purchaser has acted as agent for such Purchaser in connection with making its investment hereunder
and that no Purchaser will be acting as agent of such Purchaser in connection with monitoring its
investment in the Shares and Warrants or enforcing its rights under the Transaction Documents. Each
Purchaser shall be entitled to protect and enforce its rights, including, without limitation, the
rights arising out of this Agreement, and it shall not be necessary for any other Purchaser to be
joined as an additional party in any Proceeding for such purpose. The Company acknowledges that
each of the Purchasers has been provided with the same Registration Rights Agreement for the
purpose of closing a transaction with multiple Purchasers and not because it was required or
requested to do so by any Purchaser.
15
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| HELICOS BIOSCIENCES CORPORATION |
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
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Annex A
PLAN OF DISTRIBUTION
We are registering the shares of Common Stock issued to the selling stockholders and issuable
upon exercise of the warrants issued to the selling stockholders to permit the resale of these
shares of Common Stock by the holders of the shares of Common Stock and warrants from time to time
after the date of this prospectus. We will not receive any of the proceeds from the sale by the
selling stockholders of the shares of Common Stock. We will bear all fees and expenses incident to
our obligation to register the shares of Common Stock.
The selling stockholders may sell all or a portion of the Common Stock beneficially owned by
them and offered hereby from time to time directly or through one or more underwriters,
broker-dealers or agents. If the Common Stock is sold through underwriters or broker-dealers, the
selling stockholders will be responsible for underwriting discounts or commissions or agent’s
commissions. The Common Stock may be sold on any national securities exchange or quotation service
on which the securities may be listed or quoted at the time of sale, in the over-the-counter market
or in transactions otherwise than on these exchanges or systems or in the over-the-counter market
and in one or more transactions at fixed prices, at prevailing market prices at the time of the
sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be
effected in transactions, which may involve crosses or block transactions. The selling
stockholders may use any one or more of the following methods when selling shares:
| • | ordinary brokerage transactions and transactions in which the broker-dealer solicits
purchasers; |
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| • | block trades in which the broker-dealer will attempt to sell the shares as agent but
may position and resell a portion of the block as principal to facilitate the
transaction; |
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| • | purchases by a broker-dealer as principal and resale by the broker-dealer for its
account; |
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| • | an exchange distribution in accordance with the rules of the applicable exchange; |
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| • | privately negotiated transactions; |
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| • | settlement of short sales entered into after the effective date of the registration
statement of which this prospectus is a part; |
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| • | broker-dealers may agree with the selling stockholders to sell a specified number of
such shares at a stipulated price per share; |
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| • | through the writing or settlement of options or other hedging transactions, whether
such options are listed on an options exchange or otherwise; |
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| • | a combination of any such methods of sale; and |
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| • | any other method permitted pursuant to applicable law. |
The selling stockholders also may resell all or a portion of the shares in open market
transactions in reliance upon Rule 144 under the Securities Act, as permitted by that rule, or
Section 4(1) under the Securities Act, if available, rather than under this prospectus, provided
that they meet the criteria and conform to the requirements of those provisions.
Broker-dealers engaged by the selling stockholders may arrange for other broker-dealers to
participate in sales. If the selling stockholders effect such transactions by selling Common Stock
to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents
may receive commissions in the form of discounts, concessions or commissions from the selling
stockholders or commissions from purchasers of the Common Stock for whom they may act as agent or
to whom they may sell as principal. Such commissions will be in amounts to be negotiated, but,
except as set forth in a supplement to this Prospectus, in the case of an agency transaction will
not be in excess of a customary brokerage commission in compliance with NASD Rule 2440; and in the
case of a principal transaction a markup or markdown in compliance with NASD IM-2440.
In connection with sales of the Common Stock or otherwise, the selling stockholders may enter
into hedging transactions with broker-dealers or other financial institutions, which may in turn
engage in short sales of the Common Stock in the course of hedging in positions they assume. The
selling stockholders may also sell Common Stock short and if such short sale shall take place after
the date that this Registration Statement is declared effective by the Commission, the selling
stockholders may deliver Common Stock covered by this prospectus to close out short positions and
to return borrowed shares in connection with such short sales. The selling stockholders may also
loan or pledge Common Stock to broker-dealers that in turn may sell such shares, to the extent
permitted by applicable law. The selling stockholders may also enter into option or other
transactions with broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other financial
institution of shares offered by this prospectus, which shares such broker-dealer or other
financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect
such transaction). Notwithstanding the foregoing, the selling stockholders have agreed not to use
shares registered on this registration statement to cover short sales of our Common Stock made
prior to the date the registration statement, of which this prospectus forms a part, has been
declared effective by the SEC.
The selling stockholders may, from time to time, pledge or grant a security interest in some
or all of the Common Stock owned by them and, if they default in the performance of their secured
obligations, the pledgees or secured parties may offer and sell the Common Stock from time to time
pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933, as amended, amending, if necessary, the list of
selling stockholders to include the pledgee, transferee or other successors in interest as selling
stockholders under this prospectus. The selling stockholders also may transfer and donate the
Common Stock in other circumstances in which case the transferees, donees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of this prospectus.
The selling stockholders and any broker-dealer or agents participating in the distribution of
the Common Stock may be deemed to be “underwriters” within the meaning of Section 2(11) of the
Securities Act in connection with such sales. In such event, any commissions paid, or any
discounts or concessions allowed to, any such broker-dealer or agent and any profit on the resale
of the shares purchased by them may be deemed to be underwriting commissions or discounts under the
Securities Act. Selling Stockholders who are “underwriters” within the meaning of Section 2(11) of
the Securities Act will be subject to the applicable prospectus delivery requirements of the
Securities Act and may be subject to certain statutory liabilities of, including but not limited
to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Securities Exchange Act
of 1934, as amended, or the Exchange Act.
Each selling stockholder has informed the Company that it is not a registered broker-dealer
and does not have any written or oral agreement or understanding, directly or indirectly, with any
person to distribute the Common Stock. Upon the Company being notified in writing by a selling
stockholder that any material arrangement has been entered into with a broker-dealer for the sale
of Common Stock through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, a supplement to this prospectus will be filed, if
required, pursuant to Rule 424(b) under the Securities Act,
disclosing (i) the name of each such selling stockholder and of the participating
broker-dealer(s), (ii) the number of shares involved, (iii) the price at which such the Common
Stock was sold, (iv) the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in this prospectus,
and (vi) other facts material to the transaction. In no event shall any broker-dealer receive
fees, commissions and markups, which, in the aggregate, would exceed eight percent (8%).
Under the securities laws of some states, the Common Stock may be sold in such states only
through registered or licensed brokers or dealers. In addition, in some states the Common Stock
may not be sold unless such shares have been registered or qualified for sale in such state or an
exemption from registration or qualification is available and is complied with.
There can be no assurance that any selling stockholder will sell any or all of the Common
Stock registered pursuant to the shelf registration statement, of which this prospectus forms a
part.
Each selling stockholder and any other person participating in such distribution will be
subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder, including, without limitation, to the extent applicable, Regulation M
of the Exchange Act, which may limit the timing of purchases and sales of any of the Common Stock
by the selling stockholder and any other participating person. To the extent applicable,
Regulation M may also restrict the ability of any person engaged in the distribution of the Common
Stock to engage in market-making activities with respect to the Common Stock. All of the foregoing
may affect the marketability of the Common Stock and the ability of any person or entity to engage
in market-making activities with respect to the Common Stock.
We will pay all expenses of the registration of the Common Stock pursuant to the registration
rights agreement, including, without limitation, Securities and Exchange Commission filing fees and
expenses of compliance with state securities or “blue sky” laws; provided, however, that each
selling stockholder will pay all underwriting discounts and selling commissions, if any and any
related legal expenses incurred by it. We will indemnify the selling stockholders against certain
liabilities, including some liabilities under the Securities Act, in accordance with the
registration rights agreement, or the selling stockholders will be entitled to contribution. We
may be indemnified by the selling stockholders against civil liabilities, including liabilities
under the Securities Act, that may arise from any written information furnished to us by the
selling stockholders specifically for use in this prospectus, in accordance with the related
registration rights agreements, or we may be entitled to contribution.
Annex B
HELICOS BIOSCIENCES CORPORATION
SELLING STOCKHOLDER NOTICE AND QUESTIONNAIRE
The undersigned holder of common stock, par value $0.001 per share, of Helicos BioSciences
Corporation, a Delaware corporation (the “Company”), issued pursuant to a certain Securities
Purchase Agreement by and among the Company and the Purchasers named therein, dated as of September
15, 2009, understands that the Company intends to file with the Securities and Exchange Commission
a registration statement on Form S-3 (the “Resale Registration Statement”) for the registration and
the resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the
Registrable Securities in accordance with the terms of a certain Registration Rights Agreement by
and among the Company and the Purchasers named therein, dated as of September 15, 2009 (the
“Agreement”). All capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Agreement.
In order to sell or otherwise dispose of any Registrable Securities pursuant to the Resale
Registration Statement, a holder of Registrable Securities generally will be required to be named
as a selling stockholder in the related prospectus or a supplement thereto (as so supplemented, the
“Prospectus”), deliver the Prospectus to purchasers of Registrable Securities (including pursuant
to Rule 172 under the Securities Act) and be bound by the provisions of the Agreement (including
certain indemnification provisions, as described below). Holders must complete and deliver this
Notice and Questionnaire in order to be named as selling stockholders in the Prospectus. Holders
of Registrable Securities who do not complete, execute and return this Notice and Questionnaire
within five (5)Trading Days following the date of the Agreement (1) will not be named as selling
stockholders in the Resale Registration Statement or the Prospectus and (2) may not use the
Prospectus for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling stockholder in the Resale
Registration Statement and the Prospectus. Holders of Registrable Securities are advised to
consult their own securities law counsel regarding the consequences of being named or not named as
a selling stockholder in the Resale Registration Statement and the Prospectus.
NOTICE
The undersigned holder (the “Selling Stockholder”) of Registrable Securities hereby gives
notice to the Company of its intention to sell or otherwise dispose of Registrable Securities owned
by it and listed below in Item (3), unless otherwise specified in Item (3), pursuant to the Resale
Registration Statement. The undersigned, by signing and returning this Notice and Questionnaire,
understands and agrees that it will be bound by the terms and conditions of this Notice and
Questionnaire and the Agreement.
The undersigned hereby provides the following information to the Company and represents and
warrants that such information is accurate and complete:
QUESTIONNAIRE
1. Name.
| (a) | Full Legal Name of Selling Stockholder: |
||
| (b) | Full Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities Listed in Item 3 below are held: |
||
| (c) | Full Legal Name of Natural Control Person (which means a natural person who
directly or indirectly alone or with others has power to vote or dispose of the
securities covered by the questionnaire): |
||
2. Address for Notices to Selling Stockholder:
Telephone: |
||
Fax: |
||
Contact
Person: |
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E-mail address of Contact Person:
|
||
3. Beneficial Ownership of Registrable Securities Issuable Pursuant to the Purchase Agreement:
| (a) | Type and Number of Registrable Securities beneficially owned and issued
pursuant to the Agreement: |
||
| (b) | Number of shares of Common Stock to be registered pursuant to this Notice for
resale: |
||
4. Broker-Dealer Status:
| (a) | Are you a broker-dealer? |
Yes o No o
| (b) | If “yes” to Section 4(a), did you receive your Registrable Securities as compensation
for investment banking services to the Company? |
Yes o No o
| Note: | If no, the Commission’s staff has indicated that you should be
identified as an underwriter in the Registration Statement. |
| (c) | Are you an affiliate of a broker-dealer? |
Yes o No o
| Note: | If yes, provide a narrative explanation below: |
||
| (c) | If you are an affiliate of a broker-dealer, do you certify that you bought the
Registrable Securities in the ordinary course of business, and at the time of the
purchase of the Registrable Securities to be resold, you had no agreements or
understandings, directly or indirectly, with any person to distribute the Registrable
Securities? |
Yes o No o
| Note: | If no, the Commission’s staff has indicated that you should be
identified as an underwriter in the Registration Statement. |
5. Beneficial Ownership of Other Securities of the Company Owned by the Selling Stockholder.
Except as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable Securities
listed above in Item 3.
Type and amount of other securities beneficially owned:
6. Relationships with the Company:
Except as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity securities of the
undersigned) has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
7. Plan of Distribution:
The undersigned has reviewed the form of Plan of Distribution attached as Annex A to the
Registration Rights Agreement, and hereby confirms that, except as set forth below, the
information contained therein regarding the undersigned and its plan of distribution is
correct and complete.
State any exceptions here:
***********
The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the
information provided herein that may occur subsequent to the date hereof and prior to the effective
date of any applicable Resale Registration Statement. All notices hereunder and pursuant to the
Agreement shall be made in writing, by hand delivery, confirmed or facsimile transmission,
first-class mail or air courier guaranteeing overnight delivery at the address set forth below. In
the absence of any such notification, the Company shall be entitled to continue to rely on the
accuracy of the information in this Notice and Questionnaire.
By signing below, the undersigned consents to the disclosure of the information contained herein in
its answers to Items (1) through (7) above and the inclusion of such information in the Resale
Registration Statement and the Prospectus. The undersigned understands that such information will
be relied upon by the Company in connection with the preparation or amendment of any such
Registration Statement and the Prospectus.
By signing below, the undersigned acknowledges that it understands its obligation to comply, and
agrees that it will comply, with the provisions of the Exchange Act and the rules and regulations
thereunder, particularly Regulation M in connection with any offering of Registrable Securities
pursuant to the Resale Registration Statement. The undersigned also acknowledges that it
understands that the answers to this Questionnaire are furnished for use in connection with
Registration Statements filed pursuant to the Registration Rights Agreement and any amendments or
supplements thereto filed with the Commission pursuant to the Securities Act.
The undersigned hereby acknowledges and is advised of the following Interpretation A.65 of the July
1997 SEC Manual of Publicly Available Telephone Interpretations regarding short selling:
“An Issuer filed a Form S-3 registration statement for a secondary offering of common stock which
is not yet effective. One of the selling stockholders wanted to do a short sale of common stock
“against the box” and cover the short sale with registered shares after the effective date. The
issuer was advised that the short sale could not be made before the registration statement become
effective, because the shares underlying the short sale are deemed to be sold at the time such sale
is made. There would, therefore, be a violation of Section 5 if the shares were effectively sold
prior to the effective date.”
By returning this Questionnaire, the undersigned will be deemed to be aware of the foregoing interpretation.
I confirm that, to the best of my knowledge and belief, the foregoing statements (including without
limitation the answers to this Questionnaire) are correct.
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Questionnaire to be
executed and delivered either in person or by its duly authorized agent.
| Dated: | Beneficial Owner:
|
|||
| By: | ||||
| Name: | ||||
| Title: | ||||
