Exhibit 10.3


 


HELICOS
BIOSCIENCES CORPORATION


 


Change in
Control Agreement


 


AGREEMENT made effective as of this 6th day of August, 2009 by and between Helicos
BioSciences Corporation (the “Company”), and Jeffrey R. Moore (the “Executive”).


 


1.                                       Purpose.  The Company
considers it essential to the best interests of its stockholders to promote and
preserve the continuous employment of key management personnel.  The Board of Directors of the Company (the “Board”)
recognizes that, as is the case with many corporations, the possibility of a
Change in Control (as defined in Section 2 hereof) exists and that such
possibility, and the uncertainty and questions that it may raise among
management, may result in the departure or distraction of key management
personnel to the detriment of the Company and its stockholders.  Therefore, the Board has determined that
appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Company’s key management, including
the Executive, to their assigned duties without distraction in the face of
potentially disturbing circumstances arising from the possibility of a Change
in Control.  Nothing in this Agreement
shall be construed as creating an express or implied contract of employment
and, except as otherwise agreed in writing between the Executive and the
Company, the Executive shall not have any right to be retained in the employ of
the Company.


 


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


 


(a)                                  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


 


(b)                                 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 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


 


(c)                                  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


 


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


 


3.                                       Terminating Event.  A
“Terminating Event” shall mean any of the events provided in this Section 3:


 


(a)                                  Termination by the Company. 
Termination by the Company of the employment of the Executive with the
Company for any reason other than for Cause, death or Disability.  For purposes of this Agreement, “Cause” shall
mean:


 


(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;


 


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(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.


 


A Terminating Event shall not be deemed to have occurred pursuant to
this Section 3(a) solely as a result of the Executive being an
employee of any direct or indirect successor to the business or assets of the
Company, rather than continuing as an employee of the Company following a
Change in Control.  For purposes hereof, the
Executive will be considered “Disabled” if, as a result of the Executive’s
incapacity due to physical or mental illness, the Executive shall have been
absent from his duties to the Company on a full-time basis for 180 calendar
days in the aggregate in any 12-month period.


 


(b)                                 Termination by the Executive for Good
Reason.  Termination by the Executive of the Executive’s
employment with the Company for Good Reason. 
For purposes of this Agreement, “Good Reason” shall mean the occurrence
of any of the following events:


 


(i)                                     a reduction in
the Employee’s then-current annual base salary or bonus opportunity or benefits;
or


 


(ii)                                  any failure to
offer the Employee the same level of benefits offered to similarly situated
employees; or


 


(iii)                               a significant
diminution in the Employee’s duties or responsibilities; or


 


(iv)                              the relocation
of the Employee’s primary business location to a location that increases the
Employee’s commute by more than fifty (50) 
miles compared to the commute of the Employee to the Employee’s
then-current primary business location; or


 


(v)                                 the failure to
pay the Employee any portion of his or her current base salary, bonus or
benefits within twenty (20) days of the date such compensation is due, based
upon the payment terms currently in effect; or


 


(vi)                              the failure of
the Company to obtain a reasonably satisfactory agreement from any successor to
assume and agree to perform this Agreement.


 


4.                                       Change in Control Payment. 
In the event a Terminating Event occurs within 12 months after a Change in Control, the following shall occur:


 


(a)                                  the Company shall pay to the Executive an
amount equal to the sum of (i) three-fourths of the Executive’s annual
base salary in effect immediately prior to the Terminating Event (or the
Executive’s annual base salary in effect immediately prior to the Change in 


 


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Control, if
higher) and (ii) an amount equal to the Executive’s average annual bonus
over the two fiscal years (or such shorter period to the extent necessary to
reflect the Executive’s actual length of service or the time in which the
Company had a bonus plan) immediately prior to the Change in Control, payable
in one lump-sum payment no later than three days following the Date of Termination;


 


(b)                                 subject to the Executive’s copayment of
premium amounts at the active employees’ rate, the Executive shall continue to
participate in the Company’s group health and dental program for nine months;
provided, however, that the continuation of health benefits under this Section shall
reduce and count against the Executive’s rights under the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended (“COBRA”); and


 


(c)                                  Notwithstanding anything to the contrary
in any applicable option agreement or stock-based award agreement, upon a Terminating
Event, all stock options and other stock-based awards granted to the Executive
by the Company shall immediately accelerate and become exercisable or
non-forfeitable as of the effective date of such Terminating Event.


 


(d)                                 Anything in this Agreement to the
contrary notwithstanding, if at the time of the Executive’s termination of
employment, the Executive is considered a “specified employee” within the
meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code of
1986, as amended (the “Code”), and if any payment that the Executive becomes
entitled to under this Agreement is considered deferred compensation subject to
interest and additional tax imposed pursuant to Section 409A(a) of
the Code as a result of the application of Section 409A(a)(2)(B)(i) of
the Code, then no such payment shall be payable prior to the date that is the
earliest of (i) six months after the Executive’s Date of Termination, (ii) the
Executive’s death, or (iii) such other date as will cause such payment not
to be subject to such interest and additional tax, and the initial payment
shall include a catch-up amount covering amounts that would otherwise have been
paid during the first six-month period but for the application of this Section 4(d).


 


5.                                       Additional
Limitation.


 


(i)                                     Anything in
this Agreement to the contrary notwithstanding, in the event that any
compensation, payment or distribution by the Company to or for the benefit of
the Executive, whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement or otherwise (the “Severance Payments”), would
be subject to the excise tax imposed by Section 4999 of the Code, the
following provisions shall apply:


 


(A)                              If the Severance Payments, reduced by the
sum of (1) the Excise Tax and (2) the total of the Federal, state,
and local income and employment taxes payable by the Executive on the amount of
the Severance Payments which are in excess of the Threshold Amount, are greater
than or equal to the Threshold Amount, the Executive shall be entitled to the
full benefits payable under this Agreement.


 


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(B)                                If the Threshold Amount is less than (x) the
Severance Payments, but greater than (y) the Severance Payments reduced by
the sum of (1) the Excise Tax and (2) the total of the Federal,
state, and local income and employment taxes on the amount of the Severance
Payments which are in excess of the Threshold Amount, then the benefits payable
under this Agreement shall be reduced (but not below zero) to the extent
necessary so that the maximum Severance Payments shall not exceed the Threshold
Amount.  To the extent that there is more
than one method of reducing the payments to bring them within the Threshold
Amount, the Executive shall determine which method shall be followed; provided
that if the Executive fails to make such determination within 45 days after the
Company has sent the Executive written notice of the need for such reduction,
the Company may determine the amount of such reduction in its sole discretion.


 


(ii)                                  For the
purposes of this Section 5, “Threshold Amount” shall mean three times the
Executive’s “base amount” within the meaning of Section 280G(b)(3) of
the Code and the regulations promulgated thereunder less one dollar ($1.00);
and “Excise Tax” shall mean the excise tax imposed by Section 4999 of the
Code, and any interest or penalties incurred by the Executive with respect to
such excise tax.


 


(iii)                               The
determination as to which of the alternative provisions of Section 5(i) shall
apply to the Executive shall be made by a nationally recognized accounting firm
selected by the Company (the “Accounting Firm”), which shall provide detailed
supporting calculations both to the Company and the Executive within 15
business days of the Date of Termination, if applicable, or at such earlier
time as is reasonably requested by the Company or the Executive.  For purposes of determining which of the
alternative provisions of Section 5(i) shall apply, the Executive
shall be deemed to pay federal income taxes at the highest marginal rate of
federal income taxation applicable to individuals for the calendar year in
which the determination is to be made, and state and local income taxes at the
highest marginal rates of individual taxation in the state and locality of the
Executive’s residence on the Date of Termination, net of the maximum reduction
in federal income taxes which could be obtained from deduction of such state
and local taxes.  Any determination by
the Accounting Firm shall be binding upon the Company and the Executive.


 


6.                                       Term.  This
Agreement shall take effect on the date first set forth above and shall
terminate upon the earlier of (a) the termination by the Company of the
employment of the Executive for Cause or the failure by the Executive to
perform his full-time duties with the Company by reason of his death or Disability,
(b) the resignation or termination of the Executive’s employment for any
reason prior to a Change in Control, or (c) the
date which is 12 months after a
Change in Control if the Executive is still employed by the Company, provided
that the provisions of Section 10 shall survive termination of this
Agreement for a period of three years.


 


7.                                       Withholding. 
All payments made by the Company under this Agreement shall be net of
any tax or other amounts required to be withheld by the Company under
applicable law.


 


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8.                                       Notice and Date of Termination.


 


(a)                                  Notice of Termination.  After a Change in Control and during the term
of this Agreement, any purported termination of the Executive’s employment
(other than by reason of death) shall be communicated by written Notice of
Termination from one party hereto to the other party hereto in accordance with
this Section 8.  For purposes of
this Agreement, a “Notice of Termination” shall mean a notice which shall
indicate the specific termination provision in this Agreement relied upon and
the Date of Termination.


 


(b)                                 Date of Termination.  “Date
of Termination,” with respect to any purported termination of the Executive’s
employment after a Change in Control and during the term of this Agreement,
shall mean the date specified in the Notice of Termination.  In the case of a termination by the Company
other than a termination for Cause (which may be effective immediately), the
Date of Termination shall not be less than 30 days after the Notice of
Termination is given.  In the case of a
termination by the Executive, the Date of Termination shall not be less than 30
days from the date such Notice of Termination is given.  Notwithstanding the foregoing, in the event
that the Executive gives a Notice of Termination to the Company, the Company
may unilaterally accelerate the Date of Termination and such acceleration shall
not result in a termination by the Company for purposes of this Agreement.


 


9.                                       No Mitigation. 
The Company agrees that, if the Executive’s employment by the Company is
terminated during the term of this Agreement, the Executive is not required to
seek other employment or to attempt in any way to reduce any amounts payable to
the Executive by the Company pursuant to Section 4 hereof.  Further, the amount of any payment provided
for in this Agreement shall not be reduced by any compensation earned by the
Executive as the result of employment by another employer, by retirement
benefits, by offset against any amount claimed to be owed by the Executive to
the Company or otherwise.


 


10.                                 Arbitration of Disputes. 
Any controversy or claim arising out of or relating to this Agreement or
the breach thereof or otherwise arising out of the Executive’s employment or
the termination of that employment (including, without limitation, any claims
of unlawful employment discrimination whether based on age or otherwise) shall,
to the fullest extent permitted by law, be settled by arbitration in any forum
and form agreed upon by the parties or, in the absence of such an agreement,
under the auspices of the American Arbitration Association (“AAA”) in Boston, Massachusetts in accordance
with the Employment Dispute Resolution Rules of the AAA, including, but
not limited to, the rules and procedures applicable to the selection of
arbitrators.  In the event that any
person or entity other than the Executive or the Company may be a party with
regard to any such controversy or claim, such controversy or claim shall be
submitted to arbitration subject to such other person or entity’s
agreement.  Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof.  This Section 10 shall be
specifically enforceable. Notwithstanding the foregoing, this Section 10
shall not preclude either party from pursuing a court action for the sole
purpose of obtaining a temporary restraining order or a preliminary injunction
in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an
arbitration proceeding pursuant to this Section 10.


 


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11.                                 Consent to Jurisdiction. 
To the extent that any court action is permitted consistent with or to
enforce Section 10 of this Agreement, the parties hereby consent to the
jurisdiction of the Superior Court of the Commonwealth of Massachusetts and the
United States District Court for the District of Massachusetts.  Accordingly, with respect to any such court
action, the Executive (a) submits to the personal jurisdiction of such
courts; (b) consents to service of process; and (c) waives any other
requirement (whether imposed by statute, rule of court, or otherwise) with
respect to personal jurisdiction or service of process.


 


12.                                 Integration.  This
Agreement shall constitute the sole and entire agreement among the parties with
respect to the subject matter hereof, and supersedes and cancels all prior,
concurrent and/or contemporaneous arrangements, understandings, promises,
programs, policies, plans, practices, offers, agreements and/or discussions,
whether written or oral, by or among the parties regarding the subject matter hereof,
including, but not limited to, those constituting or concerning employment
agreements, change in control benefits and/or severance benefits; provided,
however, that this Agreement is not intended to, and shall not, supersede,
affect, limit, modify or terminate any of the following, all of which shall
remain in full force and effect in accordance with their respective terms: (i) any
written agreements, programs, policies, plans, arrangements or practices of the
Company that do not relate to the subject matter hereof; (ii) any written
stock or stock option agreements between Executive and the Company (except as
expressly modified hereby); and (iii) any written agreements between
Executive and the Company concerning noncompetition, nonsolicitation, inventions
and/or nondisclosure obligations.


 


13.                                 Successor to the Executive. 
This Agreement shall inure to the benefit of and be enforceable by the
Executive’s personal representatives, executors, administrators, heirs,
distributees, devisees and legatees.  In
the event of the Executive’s death after a Terminating Event but prior to the
completion by the Company of all payments due him or her under Section 4
of this Agreement, the Company shall continue such payments to the Executive’s
beneficiary designated in writing to the Company prior to his or her death (or
to his or her estate, if the Executive fails to make such designation).


 


14.                                 Enforceability. 
If any portion or provision of this Agreement shall to any extent be
declared illegal or unenforceable by a court of competent jurisdiction, then
the remainder of this Agreement, or the application of such portion or
provision in circumstances other than those as to which it is so declared
illegal or unenforceable, shall not be affected thereby, and each portion and
provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.


 


15.                                 Waiver.  No waiver of
any provision hereof shall be effective unless made in writing and signed by
the waiving party.  The failure of any
party to require the performance of any term or obligation of this Agreement,
or the waiver by any party of any breach of this Agreement, shall not prevent
any subsequent enforcement of such term or obligation or be deemed a waiver of
any subsequent breach.


 


16.                                 Notices.  Any notices,
requests, demands and other communications provided for by this Agreement shall
be sufficient if in writing and delivered in person or sent by registered or
certified mail, postage prepaid, to the Executive at the last address the Executive
has filed in 


 


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writing with the Company, or to the Company at its main office,
attention of the Board of Directors.


 


17.                                 Amendment.  This
Agreement may be amended or modified only by a written instrument signed by the
Executive and by a duly authorized representative of the Company.


 


18.                                 Effect on Other Plans. 
An election by the Executive to resign after a Change in Control under
the provisions of this Agreement shall not be deemed a voluntary termination of
employment by the Executive for the purpose of interpreting the provisions of
any of the Company’s benefit plans, programs or policies.  Nothing in this Agreement shall be construed
to limit the rights of the Executive under the Company’s benefit plans,
programs or policies except that the Executive shall have no rights to any
severance benefits under any Company severance pay plan.  In the event that the Executive is party to
an employment agreement with the Company providing for change in control payments
or benefits, the Executive must elect to receive either the benefits payable
under such other agreement or the benefits payable under this Agreement, but
not both.  The Executive shall make such
an election in the event of a Change in Control.


 


19.                                 Governing Law.  This
is a Massachusetts contract and shall be construed under and be governed in all
respects by the laws of the Commonwealth of Massachusetts, without giving
effect to the conflict of laws principles of such Commonwealth.  With respect to any disputes concerning
federal law, such disputes shall be determined in accordance with the law as it
would be interpreted and applied by the United States Court of Appeals for the
First Circuit.


 


20.                                 Successors to Company. 
The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place.  Failure of the Company to obtain an
assumption of this Agreement at or prior to the effectiveness of any succession
shall be a breach of this Agreement and shall constitute Good Reason if the
Executive elects to terminate employment.


 


21.                                 Gender Neutral.  Wherever used herein, a
pronoun in the masculine gender shall be considered as including the feminine
gender unless the context clearly indicates otherwise.


 


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IN
WITNESS WHEREOF, this Agreement has been executed as a sealed instrument by the
Company by its duly authorized officer, and by the Executive, as of the date first
above written.


 


	
   

  	
  HELICOS BIOSCIENCES CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ronald A. Lowy

  
	
   

  	
   

  	
  Name: Ronald A. Lowy

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Jeffrey R. Moore

  
	
   

  	
  Name:
  Jeffrey R. Moore