Exhibit 10.1


 


February 25, 2008


 


By Email


 


Louise A. Mawhinney


c/o Richard M. Stein


Nixon Peabody LLP


100 Summer Street


Boston, MA 02110


 


Re:         Severance Agreement and Release


 


Dear Louise:


 


This
letter summarizes the terms of your continuing employment and planned
separation from employment with Helicos BioSciences Corporation (the “Company”),
and the severance agreement and release between you and the Company (the “Agreement”).  The purpose of this Agreement is to establish
an amicable arrangement for ending your employment relationship, to release
legal claims between you and the Company and to permit you to receive severance
pay and related benefits.  With these
understandings and in exchange for the promises by you and the Company as set
forth below, you and the Company agree as follows.


 


1.                                      Employment Status,
Severance Pay and Benefits:


 


(a)           You shall be an employee of the
Company to and including the earlier of (i) March 19, 2008 or (ii) any
earlier date agreed upon in writing between you and the Company (the “Resignation
Date”).  During the remainder of your
employment, you shall continue to hold the position of and serve as Senior Vice
President, Chief Financial Officer and Treasurer of the Company (“CFO”);
provided that (i) the Company may reassign any of the CFO functions to any
other employee during the remainder of your employment and (ii) although
the Company does not have any present intention to remove you as CFO before the
Resignation Date, any such removal would not violate this Agreement; provided
that the Company continues your salary and employee benefit program
participation to the Resignation Date. 
To the extent that you retain responsibilities as CFO during the
remainder of your employment, you shall use your best efforts to perform such responsibilities,
including without limitation using your best efforts to complete the Company’s
2007 audit and to prepare and file the Company’s annual report on Form 10-K.  During the remainder of your employment, you
shall also perform any reasonably requested responsibilities to assist in the
transition of your duties.  If so
requested by the Company, you shall work from your home during any portion of
the remainder of your employment.


 


(b)           During the remainder of your
employment and continuing after the end of your employment effective to and
including August 1, 2008, the Company shall continue to pay you your regular
base salary on the Company’s regular payroll dates at the gross 


 


 

















 


annual rate of
$278,125.00, subject to tax-related deductions and withholdings.  Your participation in all Company benefit
programs in which you currently participate shall continue to and including the
Resignation Date.  Effective on the
Resignation Date, your participation in all such Company benefit programs shall
end pursuant to program terms, except with respect to the Company’s group
medical and dental plans, which shall be subject to continuation pursuant to Section 1(c) below. 
On the Resignation Date, your employment and your affiliations with the
Company and any of its subsidiaries in any and all other capacities you may
hold with the Company or any subsidiary shall terminate.  If so requested by the
Company, you shall sign any reasonably requested written notices confirming
your resignation from the Company as CFO and/or from your affiliation with the
Company or any subsidiary in any other capacity. 
Notwithstanding the foregoing, nothing in this Agreement shall be
construed to affect your right to receive pay for all vacation pay that is
accrued, unused and otherwise available to you as of the Resignation Date.


 


(c)           The Resignation Date shall be the
date of the “qualifying event” under the Company’s group medical and dental
plans for the purpose of continuation of coverage pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”).  The Company
will present you with information on COBRA under separate cover.  If you timely elect
continuation of coverage under COBRA, the Company shall pay the premiums for
coverage of you under the Company’s group medical and dental plans in which you
are currently participating (“Group Health Plans”) at the coverage levels that
currently apply to you, subject to premium contributions by you to the same
extent as premium contributions are required for active employees with the same
coverage levels, effective until the earlier of (i) August 1, 2008 or
(ii) the date when you become eligible for coverage under another group
medical plan as a result of other employment. 
You shall notify the Company in writing if you become eligible for
coverage under another group medical plan before August 1, 2008 and you
shall respond promptly to any reasonable requests for information relevant to
your rights under this Section 1(c). 
You acknowledge that the Company may deduct your premium contributions
for coverage under Group Health Plans from your salary continuation payments
pursuant to Section 1(b).  Nothing
in this Agreement shall affect your right to continue participating in Group
Health Plans pursuant to COBRA after August 1, 2008 at your own premium
cost subject to the terms of COBRA.


 


(d)           As
part of the consideration for the payments and benefits following the
Resignation Date pursuant to Sections 1(b) and 1(c), you agree that during
the period from the day following the Resignation Date to and including July 31,
2008, you shall provide up to five (5) hours per calendar month of
transitional assistance by telephone or email. 
You shall provide such assistance at any reasonable times requested by
the Company; provided that the Company shall not require you to provide
transitional assistance at any time that would unreasonably interfere with
personal or professional commitments. 
Transitional assistance pursuant to this Section 1(d) may
include but shall not be limited to services within the scope of Section 10.


 


 


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2.                                      Stock/Change in Control
Agreements:


 


(a)           Stock and Stock Options:  Your rights to stock and stock options of the
Company shall be governed by the Helicos BioSciences Corporation 2003 Stock
Option and Incentive Plan and the 2007 Stock Option and Incentive  Plan (“Stock Option Plans”), your Restricted
Stock Agreement, dated September 25, 2006 (“Restricted Stock Agreement”),
and your Incentive Stock Option Agreement, dated June 7, 2007 (“ISO
Agreement”) based on your employment to the Resignation Date, except that you
shall further be entitled to vesting as of the Resignation Date of such
additional stock and options that would have vested if your employment had continued
to and including August 1, 2008. 
Subject only to that modification of vesting rights, all of your rights and obligations to
stock and/or stock options, including exercise, expiration and the Company’s
purchase of unvested stock, are governed by the terms and conditions of the
Stock Option Plan, the Restricted Stock Agreement and the ISO Agreement.  Pursuant to the provisions of the Helicos
BioSciences Corporation Insider Trading Policy (the “Insider Trading Policy”)
applicable to former employees, you further understand and agree that you shall
be subject to restrictions on trading of stock that are in effect as of the
Resignation Date until the first regularly scheduled open “trading window”
following the Resignation Date, which the Company represents shall in no event
be later than May 20, 2008.


 


 (b)          Change
in Control Agreement:  The Company
waives its right under Section 5(b) of the Change in Control
Agreement between you and the Company dated May 2, 2007 (the “Change in
Control Agreement”) to recover a tax gross-up of $142,356.00 in connection with
the revaluation of the fair market value of the Company’s stock.  You agree that you shall have no further
rights under the Change in Control Agreement, and that as of the Resignation
Date, the Change in Control Agreement shall be null and void.


 


3.                                      Mutual Releases:


 


(a)           Release of the Company:  In exchange for the Company’s promises set
forth herein, and other good and valuable consideration, the sufficiency of
which is hereby acknowledged, you and your representatives, agents, estate,
heirs, successors and assigns, absolutely and unconditionally hereby release,
remise, discharge, indemnify and hold harmless the Company Releasees (defined
to include the Company and/or any of its parents, subsidiaries or affiliates,
predecessors, successors or assigns, and its and their respective current
and/or former partners, directors, shareholders/stockholders, officers,
employees, attorneys and/or agents, all both individually and in their official
capacities), from any and all actions or causes of action, suits, claims,
complaints, contracts, liabilities, agreements, promises, torts, debts,
damages, controversies, judgments, rights and demands, whether existing or
contingent, known or unknown, suspected or unsuspected, which arise out of your
employment with, change in employment status with, and/or separation of
employment from, the Company.  This
release is intended by you to be all encompassing and to act as a full and
total release of any claims, whether specifically enumerated herein or not,
that you may have or have had against the Company Releasees arising from
conduct occurring up to and through the date of this 


 


 


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Agreement, including, but
not limited to, any claims arising from any federal, state or local law,
regulation or constitution dealing with either employment, employment benefits
or employment discrimination such as those laws or regulations concerning
discrimination on the basis of race, color, creed, religion, age, sex, sex
harassment, sexual orientation, national origin, ancestry, genetic carrier
status, handicap or disability, veteran status, any military service or
application for military service, or any other category protected under federal
or state law; any contract, whether oral or written, express or implied,
including without limitation, any letter offering employment and any stock
option agreement(s); any tort; any claim for equity or other benefits; or any
other statutory and/or common law claim. You not only release and discharge the
Company Releasees from any and all claims as stated above that you could make
on your own behalf or on behalf of others, but also those claims that might be
made by any other person or organization on your behalf, and you specifically
waive any right to recover any damage awards as a member of any class in a case
in which any claim(s) against the Company Releasees are made involving any
matters.


 


Notwithstanding
the foregoing, nothing herein shall be deemed to release or waive any claims
arising from this Agreement.


 


(b)           Release of You:  In exchange for the release set forth in Section 3(a) above,
and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Company absolutely and unconditionally hereby releases,
remises, discharges, indemnifies and holds you harmless from any and all
actions or causes of action, suits, claims, complaints, contracts, liabilities,
agreements, promises, torts, debts, damages, controversies, judgments, rights
and demands, whether existing or contingent, known or unknown, suspected or
unsuspected, which arise out of your employment with, change in employment
status with, and/or separation of employment from, the Company.  This release is intended by the Company to be
all encompassing and to act as a full and total release of any claims, whether
specifically enumerated herein or not, that the Company may have or have had
against you arising from conduct occurring up to and through the date of this
Agreement, including, but not limited to, any claims arising from any federal,
state or local law, regulation or constitution dealing with either employment
or employment benefits; any contract, whether oral or written, express or
implied, including without limitation, any letter offering employment and any
stock option agreement(s), any tort; any claim for equity or other benefits; or
any other statutory and/or common law claim.


 


Notwithstanding
the foregoing, nothing herein shall be deemed to release or waive (i) any
civil claims the Company may have arising from any acts or omissions by you
that would satisfy the elements of a criminal offense or (ii) any claims
arising from this Agreement.


 


 


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4.                                      Waiver of Rights and
Claims Under the Age Discrimination


in Employment Act of 1967:


 


Since you are 40 years of
age or older, you are being informed that you have or may have specific rights
and/or claims under the Age Discrimination in Employment Act of 1967 (ADEA) and
you agree that:


 


(a)           in consideration for the Company’s
promises set forth herein, you specifically and voluntarily waive such rights
and/or claims under the ADEA you might have against the Company Releasees to
the extent such rights and/or claims arose prior to the date this Agreement was
executed;


 


(b)           you understand that rights or claims
under the ADEA which may arise after the date this Agreement is executed are
not waived by you;


 


(c)           you are advised that you may take at
least twenty-one (21) days within which to consider the terms of this
Agreement, subject to Section 5(a) below, and you are advised to
consult with an attorney of your choice prior to executing this Agreement, and
you acknowledge that you have not been subject to any undue or improper influence
interfering with the exercise of your free will in deciding whether to consult
with counsel;


 


(d)           you have carefully read and fully
understand all of the provisions of this Agreement, and you knowingly and
voluntarily agree to all of the terms set forth in this Agreement; and


 


(e)           in entering into this Agreement you
are not relying on any representation, promise or inducement made by the
Company or its attorneys with the exception of those promises described in this
document.


 


5.                                      Period for Review and
Consideration of Agreement:


 


(a)               You
acknowledge that you were informed and understood that you had twenty-one (21)
days from February 19, 2008 (i.e., to and
including March 11, 2008) to review and consider a preceding version of
this Agreement before signing it.  You
further acknowledge and agree that the revisions to such preceding version that
are reflected in this Agreement do not extend that twenty-one (21) day
period.  If you sign this Agreement
before March 11, 2008, you acknowledge that such decision was entirely
voluntary.


 


(b)               The
21-day review period will not be affected or extended by any revisions, whether
material or immaterial, that might be made to this Agreement.


 


6.                                      Accord and Satisfaction:  The payments
set forth herein shall be complete and unconditional payment, settlement,
accord and/or satisfaction with respect to all obligations and liabilities of
the Company Releasees to you, including, without limitation, all claims for
back wages, salary, vacation pay, draws, incentive pay, bonuses, stock and
stock options, commissions, severance pay, reimbursement of expenses, motor
vehicle expenses, moving expenses, any and all other forms of compensation or
benefits, attorney’s fees, or other costs or sums.


 


 


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7.                                      Company Files, Documents
and Other Property:  You agree that on or before the
Resignation Date you will return to the Company all Company property and
materials, including but not limited to, (if applicable) personal computers,
laptops, palm pilots and their equivalent, fax machines, scanners, copiers,
cellular phones, Company credit cards and telephone charge cards, manuals,
building keys and passes, courtesy parking passes, diskettes, intangible
information stored on diskettes, software programs and data compiled with the
use of those programs, software passwords or codes, tangible copies of trade
secrets and confidential information, sales forecasts, names and addresses of
Company customers and potential customers, customer lists, customer contacts,
sales information, sales forecasts, memoranda, sales brochures, business or
marketing plans, reports, projections, and any and all other information or
property previously or currently held or used by you that is or was related to
your employment with the Company (“Company Property”).  You represent that you have not and will not
take by download or otherwise any Company Property.  You agree that in the event that you discover
any Company Property in your possession, whether in electronic form or
otherwise, after the Resignation Date, you will immediately return such
materials to the Company.


 


8.                                      No Liability or Wrongdoing:  Nothing in
this Agreement, nor any of its terms and provisions, nor any of the
negotiations or proceedings connected with it, constitutes, will be construed
to constitute, will be offered in evidence as, received in evidence as, and/or
deemed to be evidence of, an admission of liability or wrongdoing by any and/or
all of the Company Releasees, and any such liability or wrongdoing is hereby
expressly denied by each of the Company Releasees.


 


9.                                      Future Conduct:


 


(a)       Nondisparagement:  You agree not to make disparaging statements
to any person or entity concerning the Company, its officers, directors or
employees; the products, services or programs provided or to be provided by the
Company; the business affairs, operation, management or the financial condition
of the Company; or the circumstances surrounding your employment and/or
separation of employment from the Company. 
The Company agrees that throughout their employment with the Company,
the current Chief Executive Officer and current President of the Company shall
not make any disparaging statements concerning you.  The Company shall also direct all current
Vice Presidents of the Company not to make any disparaging statements
concerning you.  The Company further
agrees that the Chief Executive Officer shall sign and provide to you a
reference letter on the Company’s letterhead with the text of Exhibit A.


 


(b)       Confidentiality
of this Agreement:  You agree that
you shall not disclose, divulge or publish, directly or indirectly, any
information regarding the substance, terms or existence of this Agreement
and/or any discussion or negotiations relating to this Agreement, including any
assertions made in the course of such negotiations, to any person or
organization other than your immediate family and accountants or attorneys when
such disclosure is necessary for the accountants or attorneys to render
professional services.  Prior to any such
disclosure that you may make, you shall secure from your attorney or accountant
their agreement to maintain the confidentiality of such matters.  Notwithstanding the foregoing, you may make
disclosure concerning this Agreement to 


 


 


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the
same extent as the Company makes public disclosure for securities law reporting
purposes, after the Company has made any such disclosure.  Before the Company makes such disclosure, you
may also make disclosure to the Company’s outside accountants concerning the
fact that you will be resigning from the Company and the timing of your
departure.


 


(c)           Disclosures:  Nothing
herein shall prohibit or bar you from providing truthful testimony in any legal
proceeding or in communicating with any governmental agency or representative
or from making any truthful disclosure required, authorized or permitted under
law; provided, however, that in providing such testimony or making such
disclosures or communications, you will use your best efforts to ensure that
this section is complied with to the maximum extent possible.  Notwithstanding the foregoing, nothing in
this Agreement shall bar or prohibit you from contacting, seeking assistance from
or participating in any proceeding before any federal or state administrative
agency to the extent permitted by applicable federal, state and/or local
law.  However, you nevertheless will be
prohibited to the fullest extent authorized by law from obtaining monetary
damages in any agency proceeding in which you do so participate.


 


(d)           Noncompetition,
and Nondisclosure and Developments Agreement:  You agree that the Employee Noncompetition
Agreement between you and the Company, dated September 1, 2006 (“Noncompetition
Agreement”), and the Employee Nondisclosure and Developments Agreement between
you and the Company, dated September 1, 2006 (“Nondisclosure and
Developments Agreement”), provide restrictions regarding your conduct following
the termination of your employment.  You
agree that the agreements referenced in the preceding sentence are valid and
enforceable, and that you shall comply in all respects with the terms of such
agreements.


 


10.                               Future
Cooperation:


 


                You agree to cooperate
reasonably with the Company (including its outside counsel) in connection with
the contemplation, prosecution and defense of all phases of existing, past and
future litigation about which the Company believes you may have knowledge or
information.  You further agree to make
yourself available at mutually convenient times during and outside of regular
business hours as reasonably deemed necessary by the Company’s counsel.  The Company shall not utilize this Section 10
to require you to make yourself available to an extent that would unreasonably
interfere with full-time employment responsibilities that you may have.  You agree to appear without the necessity of
a subpoena to testify truthfully in any legal proceedings in which the Company
calls you as a witness.  The Company
shall compensate you at the rate of $200.00 per hour for services provided by
you pursuant to this Section 10; provided that (i) the Company shall
not be required to provide compensation for services that also come within the
scope of your obligations to provide transitional assistance pursuant to Section 1(d) (which
obligations are subject to the time period and hours limitation applicable to
services pursuant to Section 1(d)), and (ii) the Company shall not be
obligated to compensate you for any time that you could be compelled to expend
if you were subpoenaed by the Company. 
The Company shall also reimburse you for any pre-approved reasonable
business travel expenses that you incur on the Company’s behalf as 


 


 


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a
result of your litigation cooperation services, after receipt of appropriate
documentation consistent with the Company’s business expense reimbursement
policy.


 


11.                               Representations, Governing
Law and Other Terms:


 


(a)       This
Agreement sets forth the complete and sole agreement between the parties and
supersedes any and all other agreements or understandings, whether oral or
written, except the Stock Option Plan, Restricted Stock Agreement, ISO
Agreement, Insider Trading Policy, Change in Control Agreement (subject to its
termination pursuant to this Agreement), Noncompetition Agreement and
Nondisclosure and Developments Agreement. 
This Agreement may not be changed, amended, modified, altered or
rescinded except upon the express written consent of the Company and you.


 


(b)       If any
provision of this Agreement, or part thereof, is held invalid, void or voidable
as against public policy or otherwise, the invalidity shall not affect other
provisions, or parts thereof, which may be given effect without the invalid
provision or part.  To this extent, the
provisions and parts thereof of this Agreement are declared to be
severable.  Any waiver of any provision
of this Agreement shall not constitute a waiver of any other provision of this
Agreement unless expressly so indicated otherwise.  The language of all parts of this Agreement
shall in all cases be construed according to its fair meaning and not strictly
for or against either of the parties.


 


(c)       This
Agreement and any claims arising out of this Agreement (or any other claims
arising out of the relationship between the parties) shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts and
shall in all respects be interpreted, enforced and governed under the internal
and domestic laws of Massachusetts, without giving effect to the principles of
conflicts of laws of such state.


 


(d)           You represent that you have not been
subject to any retaliation or any other form of adverse action by the Company
Releasees for any action taken by you as an employee of the Company or
resulting from your exercise of or attempt to exercise any statutory rights
recognized under federal, state or local law.


 


(e)       You may
not assign any of your rights or delegate any of your duties under this
Agreement.  The rights and benefits of
this Agreement shall inure to the benefit of the Company’s successors and
assigns.


 


(f)        This
Agreement may be executed in counterparts. 
When both parties have executed their respective counterparts, this
Agreement shall be considered to be fully executed and the counterparts shall
together be considered one and the same Agreement.


 


12.          Effective Date: 
After signing this letter, you may revoke this Agreement for a period of
seven (7) days following said execution. 
The Agreement shall not become effective or enforceable and no payments
will be made pursuant to this Agreement until this revocation period has
expired (“Effective Date”).


 


If
this letter correctly states the agreement and understanding we have reached,
please indicate your acceptance by countersigning the enclosed copy and
returning it to me.


 


 


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Finally,
Louise, I want to thank you personally for your efforts and professionalism to
help Helicos achieve its goals.  I wish
you the very best in the future.


 


	
  Very truly
  yours,

  
	
   

  	
   

  
	
  HELICOS
  BIOSCIENCES CORPORATION

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Stanley N.
  Lapidus

  
	
   

  	
  Stanley N.
  Lapidus

  
	
   

  	
  Chairman and
  Chief Executive Officer

  
	
   

  	
   

  
	
  Date:

  	
  March 3, 2008

  
	
   

  	
   

  
			



 


I REPRESENT THAT I HAVE READ THE FOREGOING AGREEMENT,
THAT I FULLY UNDERSTAND THE TERMS AND CONDITIONS OF SUCH AGREEMENT AND THAT I
AM KNOWINGLY AND VOLUNTARILY EXECUTING THE SAME.  IN ENTERING INTO THIS AGREEMENT, I DO NOT
RELY ON ANY REPRESENTATION, PROMISE OR INDUCEMENT MADE BY THE COMPANY OR ITS
REPRESENTATIVES WITH THE EXCEPTION OF THE CONSIDERATION DESCRIBED IN THIS
DOCUMENT.


 


Accepted and Agreed to:


 


	
  /s/ Louise A.
  Mawhinney

  	
   

  
	
  Louise A.
  Mawhinney

  
	
   

  
	
  Date: 

  	
  2/25/08

  	
   

  
			



 


 


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