Exhibit 10.1


 


HELICOS
BIOSCIENCES CORPORATION


 


CORPORATE
OFFICER SEVERANCE PLAN


 


Helicos BioSciences Corporation (the “Company”) sets
forth herein the terms of its Corporate Officer Severance Plan (the “Plan”) as
follows:


 


SECTION 1.  PURPOSE


 


The purpose of this Plan is to provide severance
benefits to officers of the Company in the event of involuntary termination of
employment.  This document constitutes
the official plan document of the Plan, an employee welfare benefit plan under
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).


 


SECTION 2.  DEFINITIONS


 


(a)                                  “Accrued
Obligations” means, with respect to an Employee, the sum of (i) the
Employee’s earned compensation through the Date of Termination to the extent
not theretofore paid, and (ii) any accrued vacation pay to the extent not
theretofore paid.


 


(b)                                 “Base
Pay” means the Employee’s annual base salary prior to any pre-tax deductions,
but shall not include bonus payments, 401(k) matching contributions or any
other payments not specifically provided for under the Plan.


 


(c)                                  “Board”
means the Board of Directors of the Company.


 


(d)                                 “Cause”
means any of the following:


 


(i)                                    the substantial and continuing failure or
refusal of the Employee, after written notice thereof, to reasonably attempt to
perform his or her job duties and responsibilities (other than failure or
refusal resulting from incapacity due to physical disability or mental illness)
which failure or refusal is committed in bad faith and is not in the best
interest of the Company;


 


(ii)                                  gross negligence, willful misconduct or
material breach of fiduciary duty to the Company;


 


(iii)                               the willful commission of an act of embezzlement, misappropriation or
fraud;


 


(iv)                              deliberate and willful disregard of the written rules or policies
of the Company which results in a material and substantial loss, damage or
injury to the Company;


 

















 


(v)                                 the unauthorized, deliberate and willful
disclosure of any material confidential, proprietary and/or trade secret
information of the Company or its customers which disclosure is committed in
bad faith  and is not in the best
interest of the Company;


 


(vi)                              the willful and deliberate commission of an
act which induces any customer, supplier, employee or consultant to adversely
and substantially amend or terminate their relationship with the Company which
act is committed in bad faith and is not in the best interest of the Company;
or


 


(vii)                           the conviction of, or plea of nolo contendere by the Employee, to a
crime involving  a felony of moral
turpitude.


 


(e)                                  A
“Change in Control” shall be deemed to have occurred upon the occurrence of any
one of the following events:


 


(i)                                     any
“Person,” as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Act”) (other than the
Company, any of its subsidiaries, or any trustee, fiduciary or other person or
entity holding securities under any employee benefit plan or trust of the
Company or any of its subsidiaries), together with all “affiliates” and “associates”
(as such terms are defined in Rule 12b-2 under the Act) of such person,
shall become the “beneficial owner” (as such term is defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company
representing 50 percent or more
of the combined voting power of the Company’s then outstanding securities
having the right to vote in an election of the Company’s Board of Directors (“Voting
Securities”) (in such case other than as a result of an acquisition of
securities directly from the Company); or


 


(ii)                               persons
who, as of the date hereof, constitute the Company’s Board of Directors (the “Incumbent
Directors”) cease for any reason, including, without limitation, as a result of
a tender offer, proxy contest, merger or similar transaction, to constitute at
least a majority of the Board, provided that any person becoming a director of
the Company subsequent to the date hereof shall be considered an Incumbent
Director if such person’s election was approved by or such person was nominated
for election by either (A) a vote of at least a majority of the Incumbent
Directors or (B) a vote of at least a majority of the Incumbent Directors
who are members of a nominating committee comprised, in the majority, of
Incumbent Directors; but provided further, that any such person 


 


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whose initial assumption
of office is in connection with an actual or threatened election contest
relating to the election of members of the Board of Directors or other actual
or threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board, including by reason of agreement intended to avoid or
settle any such actual or threatened contest or solicitation, shall not be
considered an Incumbent Director; or


 


(iii)                               the
consummation of (A) any consolidation or merger of the Company where the
stockholders of the Company, immediately prior to the consolidation or merger,
would not, immediately after the consolidation or merger, beneficially own (as
such term is defined in Rule 13d-3 under the Act), directly or indirectly,
shares representing in the aggregate more than 50 percent of the voting shares
of the Company issuing cash or securities in the consolidation or merger (or of
its ultimate parent corporation, if any), or (B) any sale, lease, exchange
or other transfer (in one transaction or a series of transactions contemplated
or arranged by any party as a single plan) of all or substantially all of the
assets of the Company; or


 


(iv)                              the
approval by the Company’s stockholders of any plan or proposal for the
liquidation or dissolution of the Company.


 


(f)                                    “Code”
means Internal Revenue Code of 1986, as amended.


 


(g)                                 “Committee”
means the Compensation Committee of the Board.


 


(h)                                 “Date
of Termination” means, with respect to an Employee, the effective date of
termination of the Employee’s employment with the Company.


 


(i)                                     “Employee”
means an officer of the Company at the Vice-President level or above who
receives a Notification Letter (as defined below) from the Company as approved
by the Committee.


 


(j)                                     “Severance
Period” means the number of weeks described in the Employee’s notification
letter in the form set forth on Schedule A (the “Notification Letter”) for
which benefits are provided pursuant to Section 3(a).


 


SECTION 3.  SEVERANCE
BENEFITS


 


(a)                                  If
the Company terminates an Employee’s employment involuntarily prior to a Change
in Control, and such involuntary termination is not for Cause or by reason of
death or disability, the Company shall pay to the Employee the following
amounts:


 


(i)                                     the
Accrued Obligations in a lump sum in cash within ten business days of the Date
of Termination;


 


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(ii)                                  the
severance benefits provided in the Employee’s individual Notification Letter
(the “Severance Benefits”); provided  however, that the Employee
has executed a Waiver and Release substantially in the form set forth in Schedule
B, and the revocation period for such Waiver and Release has passed;


 


(iii)                               the
continuation of health and dental benefits to the Employee and/or the Employee’s
family at the active employee premium rate during the Severance Period.  The continuation coverage under this
subsection shall count towards the obligation of the Company to provide COBRA
continuation coverage; and


 


(iv)                              outplacement
services as described in the Employee’s individual Notification Letter (the “Outplacement
Services”).


 


(b)                                 The
Company shall pay the severance benefits in a lump sum in cash within ten
business days after the revocation period for such Waiver and Release has
passed.  All severance benefits provided
to an Employee pursuant to Section 3(a) shall be reduced and/or
offset by any notice, payments or benefits to which the Employee may be
entitled under the federal Worker Adjustment and Retraining Notification (WARN)
Act, 29 U.S.C. § 2101 et seq., as amended, and any applicable state plant or
facility closing or mass layoff law.


 


(c)                                  If
an Employee’s employment is terminated for Cause or the Employee dies, becomes
disabled or voluntarily terminates employment for any reason, the Employee
shall only be entitled to his Accrued Obligation.


 


SECTION 4.  WITHHOLDING


 


Notwithstanding anything in this Plan to the contrary,
all payments required to be made by the Company hereunder to an Employee or his
estate or beneficiaries shall be subject to the withholding of such amounts
relating to taxes as the Company reasonably may determine it should withhold
pursuant to any applicable law or regulation. 
In lieu of withholding such amounts, in whole or in part, the Company may,
in its sole discretion, accept other provisions for the payment of taxes and
any withholdings as required by law, provided that the Company is satisfied
that all requirements of law affecting its responsibilities to withhold compensation
have been satisfied.


 


SECTION 5.  ADMINISTRATION


 


The Plan shall be administered by either the Committee
or the person(s) appointed by the Board from time to time to administer
the Plan (in either case, the “Administrator”). 
The Administrator shall have the full power, authority and discretion to
interpret the terms and provisions of the Plan, to make all determinations it
deems advisable for the administration of the Plan, to decide all disputes
arising in connection with the Plan and to otherwise supervise the
administration of the Plan.  All
decisions and interpretations of the Administrator shall be binding on all
persons.


 


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SECTION 6.  GOVERNING LAW


 


This Plan shall be governed by the laws of the United
States to the extent applicable and otherwise by the laws of the Commonwealth
of Massachusetts, excluding the choice of law rules thereof.


 


SECTION 7.  SEVERABILITY


 


If any part of any provision of this Plan shall be
invalid or unenforceable under applicable law, such part shall be ineffective
to the extent of such invalidity or unenforceability only, without in any way
affecting the remaining parts of such provision or the remaining provisions of
this Plan.


 


SECTION 8.  DISCLAIMER OF
RIGHTS


 


No provision in this Plan shall be construed to confer
upon any individual the right to remain in the employ or service of the Company
or any related entities, or to interfere in any way with any contractual or
other right or authority of the Company either to increase or decrease the
compensation or other payments to any individual at any time, or to terminate
any employment or other relationship between any individual and the Company or
any related entities.  The obligation of
the Company to pay any benefits pursuant to this Plan shall be interpreted as a
contractual obligation to pay only those amounts described herein, in the
manner and under the conditions prescribed herein.  The Plan shall in no way be interpreted to
require the Company to transfer any amounts to a third party trustee or
otherwise hold any amounts in trust or escrow for payment to any participant or
beneficiary under the terms of the Plan.


 


SECTION 9.  CLAIMS
PROCEDURES.


 


(a)                                  If
an Employee asserts a right to a benefit under the Plan which has not been
received, the Employee must file a claim for such benefit with the
Administrator.  The Administrator shall
render its decision on the claim within 90 days after its receipt of the claim.


 


If special circumstances apply, the 90-day period may
be extended by an additional 90 days, provided that written notice of the
extension is provided to the Employee during the applicable period and such
notice indicates the special circumstances requiring an extension of time and
the date by which the Administrator expects to render its decision on the
claim.


 


(b)                                 If
the Administrator wholly or partially denies the claim, the Administrator shall
provide written notice to the Employee within the time limitations of the
immediately preceding paragraph.  Such
notice shall set forth:


 


(i)                                     the
specific reasons for the denial of the claim;


 


(ii)                                  specific
reference to pertinent provisions of the Plan on which the denial is based;


 


(iii)                               a
description of any additional material or information necessary to perfect the
claim and an explanation of why such material or information is necessary;


 


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(iv)                              a
description of the Plan’s claims review procedures, and the time limitations
applicable to such procedures; and


 


(v)                                 a
statement of the Employee’s right to bring a civil action under Section 502(a) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) if
the claim denial is appealed to the Administrator and the Administrator fully
or partially denies the claim.


 


(c)                                  An
Employee whose application for benefits is denied may request a full and fair
review of the decision denying the claim by filing, in accordance with such
procedures as the Administrator may establish, a written appeal which sets
forth the documents, records and other information relating to the claim within
60 days after receipt of the notice of the denial from the Administrator.  In connection with such appeal and upon
request by the Employee, an Employee may review (or receive free copies of) all
documents, records or other information relevant to the Employee’s claim for
benefit, all in accordance with such procedures as the Administrator may
establish.  If an Employee fails to file
an appeal within such period, he shall have no further right to appeal.


 


(d)                                 A
decision on the appeal by the Administrator shall include a review by the
Administrator that takes into account all comments, documents, records and
other information submitted by the Employee relating to the claim, without
regard to whether such information was submitted or considered in the initial
claim determination.  The Administrator
shall render its decision on the appeal not later than 60 days after the
receipt by the Administrator of the appeal. 
If special circumstances apply, the 60-day period may be extended by an
additional 60 days, provided that written notice of the extension is provided
to the Employee during the initial period and such notice indicates the special
circumstances requiring an extension of time and the date by which the
Administrator expects to render its decision on the claim on appeal.


 


If the Administrator wholly or partly denies the claim
on appeal, the Administrator shall provide written notice to the Employee
within the time limitations of the immediately preceding paragraph.  Such notice shall set forth:


 


(i)                                     the
specific reasons for the denial of the claim;


 


(ii)                                  specific
reference to pertinent provisions of the Plan on which the denial is based;


 


(iii)                               a
statement of the Employee’s right to receive, upon request and free of charge,
reasonable access to, and copies of, all documents, records, and other
information relevant to the Employee’s claim for benefits; and


 


(iv)                              a
statement of the Employee’s right to bring a civil action under Section 502(a) of
ERISA.


 


The claims procedures described above shall be
administered in accordance with Section 503 of ERISA and regulations
promulgated thereunder.  Any written
notice required to be given


 


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to the Employee may, at
the option of the Administrator and in accordance with guidance issued under Section 503
of ERISA, be provided electronically.


 


SECTION 10.  PLAN
AMENDMENTS AND TERMINATION


 


(a)                                  The
Company reserves the right to make from time to time any amendment or
amendments to this Plan.  The Company further reserves the right to
terminate the Plan at any time.


 


(b)                                 Any
action by the Company under this Plan may be made by resolution of the Board of
Directors of the Company, or by any person or persons duly authorized by the
Board of Directors of the Company to take such action.


 


(c)                                  Any
Employee who is terminated after an amendment or termination shall have the
right to receive only such benefits, if any, as are provided after such
amendment or termination.


 


SECTION 11.  CAPTIONS


 


The use of captions in this Plan is for the
convenience of reference only and shall not affect the meaning of any provision
of this Plan.


 


SECTION 12.  NUMBER AND
GENDER


 


With respect to words used in this Plan, the singular
form shall include the plural form, the masculine gender shall include the
feminine gender, etc., as the context requires.


 


SECTION 13.  SECTION 409A


 


It is the intention of the parties that payments or
benefits payable under this Plan not be subject to the additional tax imposed
pursuant to Section 409A of the Code. 
To the extent such potential payments or benefits could become subject
to such Section, the parties shall cooperate to amend this Plan with the goal
of giving the Employees the economic benefits described herein in a manner that
does not result in such tax being imposed.


 


*  *  * 
*  *


 


This Plan was duly adopted and approved by the Committee
on the 11th day of December 2008.


 


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Schedule A


 


Form of Notification
Letter


 


Dear [Employee],


 


We are pleased to present to you the individual
benefits under and subject to the terms and conditions of Helicos BioSciences
Corporation’s Corporate Officer Severance Plan dated as of December 11,
2008 (the “Plan”).  Capitalized terms not
otherwise defined in this Notification Letter shall have the meanings ascribed
to them in the Plan.  In accordance with
the Plan:


 


Your Severance Period is [                ]
weeks.


 


Your Severance Benefits shall be your Base Pay for the
number of weeks of your Severance Period.


 


Your Outplacement Services shall be [                          ].


 


Sincerely,


 


 


[Company Representative]


 


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Schedule B


 


WAIVER AND RELEASE
AGREEMENT


 


THIS WAIVER AND RELEASE AGREEMENT is entered into as
of                       ,
200_ (the “Effective Date”), by                           
(the “Employee”) in consideration of the severance payments provided to the
Employee by Helicos BioSciences Corporation(the “Company”) pursuant to the Helicos
BioSciences Corporation Corporate Officer Severance Plan (the “Severance
Payment”).


 


1.                                       Waiver
and Release.  The Employee, on his or
her own behalf and on behalf of his or her heirs, executors, administrators,
attorneys and assigns, hereby unconditionally and irrevocably releases, waives
and forever discharges the Company and each of its affiliates, parents,
successors, predecessors, and the subsidiaries, directors, owners, members,
shareholders, officers, agents, and employees of the Company and its
affiliates, parents, successors, predecessors, and subsidiaries (collectively,
all of the foregoing are referred to as the “Employer”), from any and all
causes of action, claims and damages, including attorneys’ fees, whether known
or unknown, foreseen or unforeseen, presently asserted or otherwise arising
through the date of his or her signing of the Waiver and Release Agreement,
concerning his or her employment or separation from employment.  This release includes, but is not limited to,
any claim or entitlement to salary, bonuses, any other payments, benefits or
damages arising under any federal law (including, but not limited to, Title VII
of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Employee Retirement Income Security Act of 1974, the Americans with
Disabilities Act, Executive Order 11246, the Family and Medical Leave Act, and
the Worker Adjustment and Retraining Notification Act, each as amended); any
claim arising under any state or local laws, ordinances or regulations
(including, but not limited to, any state or local laws, ordinances or
regulations requiring that advance notice be given of certain workforce
reductions); and any claim arising under any common law principle or public
policy, including, but not limited to, all suits in tort or contract, such as
wrongful termination, defamation, emotional distress, invasion of privacy or
loss of consortium.


 


The Employee understands that by signing this Waiver
and Release Agreement he or she is not waiving any claims or administrative
charges which cannot be waived by law. 
He or she is waiving, however, any right to monetary recovery or
individual relief should any federal, state or local agency (including the
Equal Employment Opportunity Commission) pursue any claim on his or her behalf
arising out of or related to his or her employment with and/or separation from
employment with the Company.


 


The Employee further agrees without any reservation
whatsoever, never to sue the Employer or become a party to a lawsuit on the
basis of any and all claims of any type lawfully and validly released in this
Waiver and Release Agreement.


 


2.                                       Acknowledgments.  The Employee is signing this Waiver and
Release Agreement knowingly and voluntarily. 
He or she acknowledges that:


 


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(a)                                  He
or she is hereby advised in writing to consult an attorney before signing this
Waiver and Release Agreement;


 


(b)                                 He
or she has relied solely on his or her own judgment and/or that of his or her
attorney regarding the consideration for and the terms of this Waiver and
Release Agreement and is signing this Waiver and Release Agreement knowingly
and voluntarily of his or her own free will;


 


(c)                                  He
or she is not entitled to the Severance Payment unless he or she agrees to and
honors the terms of this Waiver and Release Agreement;


 


(d)                                 He
or she has been given at least [twenty-one (21)] [forty-five (45)] calendar
days to consider this Waiver and Release Agreement, or he or she expressly waives
his or her right to have at least [twenty-one (21)] [forty-five (45)] days to
consider this Waiver and Release Agreement;


 


(e)                                  He
or she may revoke this Waiver and Release Agreement within seven (7) calendar
days after signing it by submitting a written notice of revocation to the
Employer.  He or she further understands
that this Waiver and Release Agreement is not effective or enforceable until
after the seven (7) day period of revocation has expired without
revocation, and that if he or she revokes this Waiver and Release Agreement
within the seven (7) day revocation period, he or she will not receive the
Severance Payment;


 


(f)                                    He
or she has read and understands the Waiver and Release Agreement and further
understands that it includes a general release of any and all known and
unknown, foreseen or unforeseen claims presently asserted or otherwise arising
through the date of his or her signing of this Waiver and Release Agreement
that he or she may have against the Employer; and


 


(g)                                 No
statements made or conduct by the Employer has in any way coerced or unduly
influenced him or her to execute this Waiver and Release Agreement.


 


3.                                       No
Admission of Liability.  This Waiver
and Release Agreement does not constitute an admission of liability or
wrongdoing on the part of the Employer, the Employer does not admit there has
been any wrongdoing whatsoever against the Employee, and the Employer expressly
denies that any wrongdoing has occurred.


 


4.                                       Entire
Agreement.  There are no other
agreements of any nature between the Employer and the Employee with respect to
the matters discussed in this Waiver and Release Agreement, except as expressly
stated herein, and in signing this Waiver and Release Agreement, the Employee
is not relying on any agreements or representations, except those expressly
contained in this Waiver and Release Agreement.


 


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5.                                       Execution.  It is not necessary that the Employer sign
this Waiver and Release Agreement following the Employee’s full and complete
execution of it for it to become fully effective and enforceable.


 


6.                                       Severability.  If any provision of this Waiver and Release
Agreement is found, held or deemed by a court of competent jurisdiction to be
void, unlawful or unenforceable under any applicable statute or controlling
law, the remainder of this Waiver and Release Agreement shall continue in full
force and effect.


 


7.                                       Governing
Law.  This Waiver and Release
Agreement shall be governed by the laws of the Commonwealth of Massachusetts, excluding
the choice of law rules thereof.


 


8.                                       Headings.  Section and subsection headings
contained in this Waiver and Release Agreement are inserted for the convenience
of reference only.  Section and
subsection headings shall not be deemed to be a part of this Waiver and Release
Agreement for any purpose, and they shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.


 


IN WITNESS WHEREOF, the undersigned has duly executed
this Agreement as of the day and year first herein above written.


 


	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


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