Exhibit 10.1
EXECUTION VERSION
THIS INSTRUMENT AND THE INDEBTEDNESS, RIGHTS AND OBLIGATIONS EVIDENCED HEREBY
AND ANY LIENS OR OTHER SECURITY INTERESTS SECURING SUCH RIGHTS AND OBLIGATIONS
ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN
SUBORDINATION AND INTERCREDITOR AGREEMENT (AS AMENDED, RESTATED, SUPPLEMENTED OR
MODIFIED FROM TIME TO TIME, THE "SUBORDINATION AGREEMENT") DATED AS OF NOVEMBER
16, 2010, BY AND AMONG THE SUBORDINATED CREDITORS IDENTIFIED THEREIN AND GENERAL
ELECTRIC CAPITAL CORPORATION IN ITS CAPACITY AS AGENT FOR CERTAIN LENDERS
(TOGETHER WITH ITS SUCCESSORS AND ASSIGNS, "SENIOR CREDITOR AGENT"), TO CERTAIN
INDEBTEDNESS, RIGHTS, AND OBLIGATIONS OF HELICOS BIOSCIENCES CORPORATION TO
SENIOR CREDITOR AGENT AND SENIOR CREDITOR (AS DEFINED THEREIN) AND LIENS AND
SECURITY INTERESTS OF SENIOR CREDITOR AGENT SECURING THE SAME ALL AS DESCRIBED
IN THE SUBORDINATION AGREEMENT, AND EACH HOLDER AND TRANSFEREE OF THIS
INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE
PROVISIONS OF THE SUBORDINATION AGREEMENT.
SUBORDINATED SECURED NOTE PURCHASE AGREEMENT
THIS SUBORDINATED SECURED NOTE PURCHASE AGREEMENT ("Agreement"), is made as of
November 16, 2010 (the "Effective Date"), by and among HELICOS BIOSCIENCES
CORPORATION, a Delaware corporation (the "Company"), and each of the purchasers
named on the Schedule of Purchasers attached hereto as Schedule 1 (the "Schedule
of Purchasers") as a "Purchaser" (each individually a "Purchaser," and
collectively the "Purchasers").
WHEREAS, the Company requires additional funds in order to fund its operations;
WHEREAS, the Company desires to issue and sell the Notes to the Purchasers, and
the Purchasers desire to purchase the Notes from the Company, as set forth
herein and in the Notes; and
WHEREAS, concurrently with the execution and delivery of this Agreement, the
Company and the Purchasers shall enter into the Security Agreement and the other
Transaction Documents;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1.
DEFINITIONS.
1.1
"Additional Committed Loan Closing" or "Additional Committed Loan
Closings" shall have the meanings ascribed to such terms in Section 2.1(b)(ii).
1.2
"Additional Discretionary Loan Closing" or "Additional
Discretionary Loan Closings" shall have the meanings ascribed to such terms in
Section 2.1(b)(iii).
1.3
"Affiliate" shall mean, with respect to any person, (a) each person
that, directly or indirectly, owns or controls 5% or more of the stock or
membership interests having ordinary voting power in the election of directors
or managers of such person, and (b) each person that controls, is controlled by
or is under common control with such person.
1.4
"Agreement" shall have the meaning ascribed to such term in the
preamble to this Agreement.
1.5
"Business Day" shall mean and include any day other than Saturdays,
Sundays, or other days on which commercial banks in Boston, Massachusetts are
required or authorized to be closed.
1.6
"Change in Control" shall mean (i) any of the chief executive
officer or the chief financial officer of Company as of the date hereof shall
cease to be involved in the day to day operations or management of the business
of Company, and a successor or interim successor of such