Exhibit 10.1


 


CONSULTANT
AGREEMENT


 


This
Consultant Agreement (“Agreement”) is made effective as of the date last signed
below by and between Helicos BioSciences Corporation (“Helicos”), a Delaware
corporation with offices at One Kendall Square, Building 700, Cambridge, MA
02139 and Stanley N. Lapidus (“Consultant”) (each a “Party” and together, the “Parties).


 


WHEREAS,
Helicos desires to have general consulting services provided by the Consultant.


 


Therefore,
the Parties agree as follows:


 


1.         Work Scope.  Consultant shall provide business consulting
services based on Consultant’s expertise and knowledge on an independent
contractor basis.


 


2.         Ownership of Work
Product.  The work product (“Work
Product”) produced by Consultant under this Agreement and all proprietary
rights therein shall be and are the property of Helicos.  Consultant will assign and does hereby assign
to Helicos all patents, copyrights, trademarks, and trade secrets conceived or
first reduced to practice pursuant to this Agreement.  Work Product includes (but is not limited to)
inventions, discoveries, compounds, reports, memoranda, drawings, computer
programs, devices, models, or other materials of any nature, or information
relating to any of the foregoing, which are or were generated in connection
with the work scope described in this Agreement.  Consultant will cooperate with Helicos in the
enforcement and perfection of Helicos’ rights.


 


3.         Licenses.  Work Product does not include (a) work
performed exclusively on Consultant’s own time, using exclusively his/her own
resources, which does not utilize any knowledge or skill gained while
performing the services required under this Agreement for Helicos, or (b) pre-existing
technology owned by Consultant prior to the effective date of this Agreement.  However, Consultant hereby grants a
non-exclusive, worldwide, royalty free right to make, have made, use, sell,
offer to sell, import, lease, distribute, reproduce, modify, display, perform
and disclose such technology in association with the Work Product.


 


4.         Compensation.  Helicos will pay Consultant $7,000.00 per
month.  Helicos will issue Consultant a
parking pass for use at the Company’s parking facility.


 


5.         Consultant’s Contact.  Consultant will work with and will receive
instructions from Helicos through the Chief Executive Officer.


 


6.         Confidentiality


 


A.        Obligation to Hold
Proprietary Information in Confidence. 
Both Parties understand that certain information Consultant may receive
from Helicos, or that Consultant may develop under this Agreement, will be
Proprietary Information to Helicos.  Such
information includes but is not limited to (i) the fact that Helicos is
conducting research in any particular area or intends to develop or market any
product; (ii) the terms of this Agreement or any agreement Helicos may
have (or may be negotiating) with any third party; (iii) non-public
information concerning the business or finances of Helicos; and (iv) any
other information the disclosure of which might harm or destroy a competitive
advantage of Helicos (all of (i) through (iv) shall be referred to as
“Proprietary Information”).  Consultant
shall not, either during or subsequent to the term of this Agreement, directly
or indirectly, disclose any Proprietary Information of Helicos, nor shall Consultant
copy or use any Proprietary Information, except for the purpose of carrying out
this Agreement.  Consultant shall not,
either during or subsequent to the term of this Agreement, directly or
indirectly publish any such information without prior written authorization
from Helicos.  Consultant shall not
perform services for direct competitors of Helicos during the term or after the
termination of this Agreement, that would require the use of any trade secrets
and/or confidential or 


 


1

















 


proprietary
information of Helicos.  Consultant
understands and agrees that his/her obligation to hold the proprietary
information of Helicos confidence survives the termination of this Agreement.


 


B.        Termination.  Either Party may terminate this Agreement upon
thirty (30) days prior written notice. Upon termination of this Agreement for
any reason, Consultant shall immediately deliver to Helicos all written
documentation, including all copies, concerning Proprietary Information, shall
make no further use of such information, and shall make reasonable efforts to
assure no further use of such information by Consultant’s employees, agents or
contractors.


 


C.        Release of Burden to
Hold Information Confidential.  This
Agreement shall impose no obligation upon Consultant with respect to any
information which (i) the Consultant is authorized by Helicos in writing
to disclose; (ii) becomes publicly available through no fault or omission
on Consultant’s part; (iii) is subsequently rightfully furnished to the
Consultant by a third party without restriction on disclosure; or (iv) is
rightfully known by Consultant as shown by written records in existence at the
time of receiving such information.


 


7.         Independent Contractor.  Consultant acknowledges that he/she is being
retained by Helicos only for the limited services set forth in this
Agreement.  Consultant shall at all times
operate as and have the status of an independent contractor and shall not act
as or be an agent or employee of Helicos. 
As such, Consultant acknowledges the terms and conditions of his/her
independent contractor relationship with Helicos will include the following:


 


A.        Consultant understands
that Consultant is not authorized to incur any expenses on behalf of Helicos without
the prior consent of the Chief Executive Officer of the Company.  Consultant shall be reimbursed for all
reasonable traveling, hotel, and other expenses properly incurred by him in the
performance of his duties under this Agreement in accordance with Company
policy, subject to the Consultant having delivered to the Company such forms
and vouchers or other evidence of actual payment of such expenses as the
Company may from time to time require. 
The decision of the Company as to what constitutes reasonable expenses
shall be conclusive and shall be determined by the Company’s Chief Executive
Officer.


 


B.        Consultant shall not
subcontract or assign this Agreement or any part hereof without Helicos’ prior
written consent.  Any such subcontract or
assignment without such consent shall be void.


 


8.         Miscellaneous


 


A.        This Agreement, together
with all exhibits hereto, constitutes the entire agreement of the Parties and
supersedes any prior or contemporaneous oral or written agreements or
understandings between the Parties. 
Consultant represents that in entering into this Agreement Consultant
has not relied on any previous oral or implied representations, inducements or
understandings of any kind or nature. 
Notwithstanding the foregoing, (a) the Non-Competition and
Non-Solicitation Agreement between Consultant and Helicos, dated October 21,
2003, (b) the Employee Non-Disclosure and Developments Agreement between
Consultant and Helicos and (c) the Severance and Consulting Services
Agreement, dated September 12, 2008, remain in full and effect.


 


B.        Contractor
shall invoice Helicos monthly. 
Consultant will maintain true and complete records in connection with
the services and all transactions related thereto, and shall permit Helicos to
make an audit of all such records.


 


C.        The following sections
shall survive the termination of this Agreement: Sections 2, 3, 6, and 8.


 


D.        The validity, construction
and performance of this Agreement shall be governed by the substantive law of
the Commonwealth of Massachusetts, and the United States of America, excluding
that body of law related to choice of law. 
Any action or proceeding brought to enforce the terms of this Agreement
shall be brought in the Commonwealth of Massachusetts located in Boston,
Massachusetts (if under State law) or the United States District Court for the
District of Massachusetts (if under Federal law).  Consultant consents to personal jurisdiction
before such courts.  If any provision of
this Agreement is determined to be invalid or unenforceable, in whole or in
part, the remaining provisions 


 


2

















 


shall remain in
full force and effect.  Consultant
understands and agrees that the disclosure or improper use of Helicos
proprietary information may cause irreparable harm for which there is no
adequate remedy at law.


 


E.         The Parties agree that
any and all disputes, claims or controversies arising out of or relating to
these Terms and Conditions that are not resolved by mutual agreement shall be
submitted to final and binding arbitration before JAMS, or its successor,
pursuant to the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq.  The arbitration shall take place in Boston,
Massachusetts, unless the Parties otherwise agree in writing.  Within fourteen (14) days thereafter, the
arbitrator shall arrive at a final decision, which shall be reduced to writing,
signed by the arbitrator, and mailed to each of the Parties and their legal
counsel.  All decisions of the arbitrator
shall be final, binding and conclusive on the Parties and shall constitute the
only method of resolving disputes or matters subject to arbitration pursuant to
this Agreement; provided, however, nothing shall prohibit the Parties from
seeking injunctive relief and/or other equitable remedies in a court of
competent jurisdiction.  The arbitrator
or a court of appropriate jurisdiction may issue a writ of execution to enforce
the arbitrator’s judgment.  Judgment may
be entered upon such a decision in accordance with applicable law in any court
having jurisdiction thereof.


 


F.         No
waiver, amendment or modification of any provisions of this Agreement shall be
effective unless in writing and signed by the Party against whom such waiver,
amendment or modification is sought to be enforced.  No failure or delay by either Party is
exercising any right, power or remedy under this Agreement shall operate as a
waiver of any such right, power or remedy.


 


G.        The
headings contained herein are for the convenience of reference only and are not
intended to define, limit, expand, or describe the scope of intent of any Section or
other provision in this Agreement.


 


H.        The
Consultant has had an opportunity to review this Agreement.


 


This
Agreement will be effective as of the date first signed below.


 


Consultant:


 


	
  By:

  	
  /s/ Stanley N.
  Lapidus

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Stanley N. Lapidus

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  December 5,
  2008

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Helicos BioSciences Corporation

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Ron Lowy

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Ron Lowy

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  CEO

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  December 5,
  2008

  	
   

  



 


3