EXHIBIT 10.1


 


ACUSPHERE, INC.


 


INDEMNIFICATION AGREEMENT


 


This Indemnification Agreement (the “Agreement”)
is made as of August   , 2003, by and between Acusphere, Inc., a
Delaware corporation (the “Company”), and                       
(the “Indemnitee”).


 


WHEREAS,
in order to continue to attract and retain sophisticated and experienced
individuals to serve as officers of the Company, the Company desires to
provide, independent from the indemnification to which the Indemnitee is
otherwise entitled by law or under the Company’s Certificate of Incorporation,
as amended and in effect from time to time (the “Charter”), and/or
By-Laws, as amended and in effect from time to time (the “By-Laws”),
indemnification to the Indemnitee and advances of expenses, all as set forth in
this Agreement to the maximum extent permitted by law;


 


NOW,
THEREFORE, to induce the Indemnitee to
continue to serve the Company and in consideration of these premises and the
mutual agreements set forth in this Agreement, as well as other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Indemnitee hereby agree as follows:


 


1.                                       Indemnification.


 


(a)                                  Third Party
Proceedings.  The Company shall
indemnify Indemnitee if Indemnitee is or was a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Company) by reason of the fact that
Indemnitee is or was a director, officer, employee or agent of the Company, or
of any subsidiary of the Company, or by reason of the fact that Indemnitee is
or was serving at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld or delayed) actually
and reasonably incurred by Indemnitee in connection with such action, suit or
proceeding if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe Indemnitee’s conduct was unlawful.  The termination of any action or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo  contendere
or its equivalent, shall not, of itself, create a presumption that Indemnitee
did not act in good faith and in a manner which Indemnitee reasonably believed
to be in or not opposed to the best interests of the Company, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that
Indemnitee’s conduct was unlawful.


 


(b)                                 Proceedings by or
in the Right of the Company.  The
Company shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Company or of any subsidiary of the Company to
procure a judgment in its favor by reason of the fact that Indemnitee is or was
a director, officer, employee or agent of the Company, or of any subsidiary of
the Company, or by reason of the fact that Indemnitee is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees) actually and reasonably incurred by
Indemnitee in connection with the defense or


 





















 


settlement of such action
or suit if Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company, except
that no indemnification shall be made in respect of any claim, issue or matter
as to which Indemnitee shall have been finally adjudged to be liable to the
Company unless and only to the extent that the Delaware Court of Chancery or
any other court in which such action or suit is or was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or other such court
shall deem proper.


 


(c)                                        Mandatory
Payment of Expenses.  To the extent
that Indemnitee has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 1(a) or Section 1(b)
or in defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by Indemnitee in connection therewith.


 


2.                                       Expenses; Indemnification Procedure.


 


(a)                                  Advancement of
Expenses.  The Company shall advance
all expenses incurred by Indemnitee in connection with the investigation,
defense, settlement or appeal of any civil or criminal action, suit or proceeding
referenced in Section 1(a) or Section 1(b) hereof (but not amounts
actually paid in settlement of any such action or proceeding).  Indemnitee hereby undertakes to repay such
amounts advanced if, and to the extent that, it shall ultimately be determined that
Indemnitee is not entitled to be indemnified by the Company as authorized
hereby.  The advances to be made
hereunder shall be paid by the Company to Indemnitee within twenty (20) days
following receipt by the Company of a written request of the Indemnitee, but
only if the Company has first received an undertaking (the “Undertaking”),
substantially in the form attached hereto as Exhibit 1, by or on
behalf of the Indemnitee to repay the amount of any such advance if and to the
extent that it shall ultimately be determined that the Indemnitee is not
entitled to indemnification for such amount. 
The Undertaking shall be unsecured and shall bear no interest and shall
be accepted without reference to the financial ability of the Indemnitee to
make repayment.


 


(b)                                 Notice/Cooperation
by Indemnitee.  Indemnitee shall, as
a condition precedent to his or her right to be indemnified under this
Agreement, give the Company notice in writing as soon as practicable of any
claim made against Indemnitee for which indemnification is or will be sought
under this Agreement.  Notice to the
Company shall be directed to the Chief Executive Officer of the Company at the
address shown on the signature page of this Agreement (or such other address as
the Company shall designate in writing to Indemnitee).  Notice shall be deemed received three (3)
business days after the date postmarked if sent by domestic certified or
registered mail, properly addressed; otherwise notice shall be deemed received
when such notice shall actually be received by the Company.  In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably require and as
shall be within Indemnitee’s power.


 


(c)                                  Procedure.  Any indemnification and advances provided for
in Section 1 and this Section 2 shall be made promptly, and in any
event within forty-five (45) days following receipt by the Company of a written
request of the Indemnitee (or within twenty (20) days in the case of advances
made pursuant to Section 2(a)), unless with respect to such requests the
Company reasonably determines within such applicable period that the Indemnitee
did not meet the applicable standard of conduct or that indemnification is not
required under Section 7 below, or unless otherwise ordered by a court.  Such determination shall be made in each
instance by: (a) the board of directors by a majority vote of a quorum
consisting of directors of the Company who were not parties to such action,
suit or proceeding in question (“disinterested directors”); (b) if such
quorum is not obtainable, or even if obtainable if a quorum of


 


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disinterested directors
so directs, by independent legal counsel (who may be regular counsel to the
Company) in a written opinion; or (c) by the stockholders of the
Company.  If a claim under this
Agreement, under any statute, or under any provision of the Company’s Charter
or By-Laws providing for indemnification, is not paid in full by the Company
within the applicable period, Indemnitee may bring an action against the
Company to recover the unpaid amount of the claim and Indemnitee shall also be
entitled to be paid for the expenses (including attorneys’ fees) of bringing
such action, subject to Section 12 of this Agreement, or unless it shall
ultimately be determined that Indemnitee is not entitled to be indemnified by
the Company as authorized hereby or thereby. It shall be a defense to any such
action that Indemnitee has not met the standards of conduct which make it
permissible under applicable law or this Agreement for the Company to indemnify
Indemnitee for the amount claimed, but the burden of proving such defense shall
be on the Company and Indemnitee shall be entitled to receive interim payments
of expenses pursuant to Section 2(a) unless and until such defense may be
finally adjudged.  It is the parties’
intention that if the Indemnitee brings any such action, the question of
Indemnitee’s right to indemnification shall ultimately be for the court to
decide, and neither the failure of the Company (including its Board of
Directors, any committee or subgroup of the Board of Directors, independent
legal counsel, or its stockholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances because Indemnitee
has met the applicable standard of conduct required by applicable law, nor an
actual determination by the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal counsel, or
its stockholders) that Indemnitee has not met such applicable standard of
conduct, shall create a presumption that Indemnitee has or has not met the
applicable standard of conduct.


 


(d)                                 Notice
to Insurers.  If, at the time of the
receipt of a notice of a claim pursuant to Section 2(b) hereof, the
Company has director and officer liability insurance in effect, the Company
shall give prompt notice of the commencement of such proceeding to the insurers
in accordance with the procedures set forth in the respective policies.  The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.


 


(e)                                  Assumption of
Defense and Selection of Counsel.  In
the event the Company shall be obligated under Section 2(a) hereof to pay
the expenses of any proceeding against Indemnitee, the Company, if appropriate,
shall be entitled to assume the defense of such proceeding, with counsel
approved by Indemnitee, which approval shall not be unreasonably withheld, upon
the delivery to Indemnitee of written notice of its election so to do.  Notwithstanding the foregoing, the Company
shall not be permitted to settle any action or claim on behalf of Indemnitee in
any manner which would impose any unindemnified liability or penalty on the
Indemnitee or require any acknowledgment of wrongdoing on the part of
Indemnitee without Indemnitee’s written consent, which consent shall not be
unreasonably withheld.  After delivery of
such notice, approval of such counsel by Indemnitee and the retention of such
counsel by the Company, and notwithstanding anything to the contrary contained
herein, the Company will not be liable to Indemnitee under this Agreement for
any fees of counsel subsequently incurred by Indemnitee with respect to the
same proceeding, provided that (i) Indemnitee shall have the right to
employ his or her counsel in any such proceeding at Indemnitee’s expense; and
(ii) if (A) the employment of separate counsel by Indemnitee has been
previously authorized by the Company, (B) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and
Indemnitee in the conduct of any such defense, or (C) the Company shall
not, in fact, have employed counsel to assume the defense of such proceeding,
then the fees and expenses of Indemnitee’s counsel shall be at the expense of
the Company.  The Company shall not be
entitled, without the consent of the Indemnitee, to assume the defense of any
claim brought by or in the right of the Company or as to which counsel for the
Indemnitee shall have reasonably made the conclusion provided for in
clause (ii)(B) above.


 


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3.                                       Additional Indemnification Rights; Nonexclusivity.


 


(a)                                  Scope. 
Notwithstanding any other provision of this Agreement, the Company
hereby agrees to indemnify the Indemnitee to the fullest extent permitted by
the General Corporation Law of the State of Delaware (the “DGCL”),
notwithstanding that such indemnification is not specifically authorized by the
other provisions of this Agreement or the Company’s Charter or By-Laws.  In the event of any change, after the date of
this Agreement, under the DGCL which expands the right of a Delaware
corporation to indemnify a member of its board of directors or an officer, such
changes shall be, ipso facto, within the purview of
Indemnitee’s rights and the Company’s obligations under this Agreement.  In the event of any change under the DGCL
which narrows the right of a Delaware corporation to indemnify a member of its
Board of Directors or an officer, such changes, to the extent not otherwise
required by such Section or any successor section shall have no
effect on this Agreement or the parties’ rights and obligations hereunder.


 


(b)                                 Nonexclusivity. 
The indemnification provided by this Agreement shall not be deemed
exclusive of any rights to which Indemnitee may be entitled under the Company’s
Charter, its By-Laws, any agreement, any vote of stockholders or disinterested
directors, the DGCL, or otherwise, both as to action in Indemnitee’s official
capacity and as to action in another capacity while holding such office.  The indemnification provided under this
Agreement shall continue as to Indemnitee for any action taken or not taken
while serving in an indemnified capacity even though s/he may have ceased to
serve in any such capacity at the time of any action, suit or other covered
proceeding.


 


4.                                       Partial Indemnification.  If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of
the expenses, judgments, fines or penalties actually or reasonably incurred by
him in the investigation, defense, appeal or settlement of any civil or
criminal action or proceeding, but not, however, for the total amount thereof,
the Company shall nevertheless indemnify Indemnitee for the portion of such
expenses, judgments, fines or penalties to which Indemnitee is entitled.


 


5.                                       Severability.  Nothing in this Agreement is intended to
require or shall be construed as requiring the Company to do or fail to do any
act in violation of applicable law.  The
Company’s inability, pursuant to court order, to perform its obligations under
this Agreement shall not constitute a breach of this Agreement.  The provisions of this Agreement shall be
severable as provided in this Section 5. 
If this Agreement or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the fullest extent permitted by any
applicable portion of this Agreement that shall not have been invalidated, and
the balance of this Agreement not so invalidated shall be enforceable in accordance
with its terms.


 


6.                                       Officer And Director Liability Insurance.  The Company shall, from time to time, make
the good faith determination whether or not it is practicable for the Company
to obtain and maintain a policy or policies of insurance with reputable
insurance companies providing the officers and directors of the Company with
coverage for losses from wrongful acts, or to ensure the Company’s performance
of its indemnification obligations under this Agreement.  Among other considerations, the Company will
weigh the costs of obtaining such insurance coverage against the protection
afforded by such coverage.  In all
policies of director and officer liability insurance, Indemnitee shall be named
as an insured in such a manner as to provide Indemnitee the same rights and
benefits as are accorded to the most favorably insured of the Company’s
directors, if Indemnitee is a director; or of the Company’s officers, if
Indemnitee is not a director of the Company but is an officer; or of the
Company’s key employees, if Indemnitee is not an officer or director but is a
key employee.  Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided, if the coverage provided
by such insurance is


 


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limited by exclusions so
as to provide an insufficient benefit, or if Indemnitee is covered by similar
insurance maintained by a subsidiary or parent of the Company.


 


7.                                       Exceptions.  Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:


 


(a)                                  To
indemnify or advance expenses to Indemnitee with respect to proceedings or
claims initiated or brought voluntarily by Indemnitee and not by way of
defense, except with respect to proceedings brought to establish or enforce a
right to indemnification under this Agreement or any other statute or law or
otherwise as required under Section 145 of the DGCL, but such
indemnification or advancement of expenses may be provided by the Company in
specific cases if the Board of Directors has approved the initiation or
bringing of the suit; or


 


(b)                                 To
indemnify Indemnitee for any expenses incurred by Indemnitee with respect to
any proceeding instituted by Indemnitee to enforce or interpret this Agreement,
if a court of competent jurisdiction determines that each of the material
assertions made by Indemnitee in such proceeding was not made in good faith or
was frivolous; or


 


(c)                                  To
indemnify Indemnitee for expenses or liabilities of any type whatsoever
(including, but not limited to, judgments, fines, ERISA excise taxes or
penalties, and amounts paid in settlement), but such exception shall only apply
to the extent such expenses or liabilities have been paid directly to
Indemnitee by an insurance carrier under a policy of officers’ and directors’
liability insurance; or


 


(d)                                 To
indemnify Indemnitee for expenses or the payment of profits arising from the
purchase and sale by Indemnitee of securities in violation of Section 16(b)
of the Securities Exchange Act of 1934, as amended, or any similar successor
statute; or


 


(e)                                  To
indemnify Indemnitee for any acts, omissions or transactions from which a
director may not be relieved of liability under the Company’s Charter or
By-Laws, or from which a court of competent jurisdiction determines a director
may not be relieved of liability under the DGCL.


 


8.                                       Construction Of  Certain  Phrases


 


(a)                                  For
purposes of this Agreement, references to the “Company” shall include,
in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so
that if Indemnitee is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, Indemnitee
shall stand in the same position under the provisions of this Agreement with
respect to the resulting or surviving corporation as Indemnitee would have with
respect to such constituent corporation if its separate existence had
continued.


 


(b)                                 For
purposes of this Agreement, references to “other enterprises” shall
include employee benefit plans; references to “fines” shall include any
excise taxes assessed on Indemnitee with respect to an employee benefit plan;
and references to “serving at the request of the Company” shall include
any service as a director, officer, employee or agent of the Company which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee


 


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reasonably believed to be
in the interest of the participants and beneficiaries of an employee benefit
plan, Indemnitee shall be deemed to have acted in a manner “not opposed to
the best interests of the Company” as referred to in this Agreement.


 


9.                                       Effectiveness of Agreement.  This Agreement shall be effective as of the
date set forth on the first page and may apply to acts or omissions of Indemnitee
which occurred prior to such date if Indemnitee was an officer, director,
employee or other agent of the Company, or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, as the time such act or
omission occurred.


 


10.                                 No Rights of Continued Service.  This Agreement shall not impose any
obligation of the Company to continue Indemnitee’s service to the Company
beyond any period otherwise required by law or by other agreements or
commitments of the parties, if any.


 


11.                                 Miscellaneous.


 


(a)                                  Governing
Law.  This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of Delaware, without giving effect to principles of conflict of
law.


 


(b)                                 Consent
to Jurisdiction.                 The
Company and the Indemnitee each hereby irrevocably consent to the exclusive
jurisdiction of the Court of Chancery of Delaware for any purpose in connection
with any actions or proceedings which arise out of or relate to this Agreement.


 


(c)                                  Entire
Agreement; Enforcement of Rights. 
This Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter herein and merges all prior discussions
between them.  No modification of or
amendment to this Agreement, nor any waiver of any rights under this Agreement,
shall be effective unless in writing signed by the parties to this
Agreement.  The failure by either party
to enforce any rights under this Agreement shall not be construed as a waiver
of any rights of such party.


 


(d)                                 Construction.  This Agreement is the result of negotiations
between, and has been reviewed by, each of the parties hereto and their
respective counsel, if any; accordingly, this Agreement shall be deemed to be
the product of all of the parties hereto, and no ambiguity shall be construed
in favor of or against any one of the parties hereto.


 


(e)                                  Notices.  Unless otherwise provided in this Agreement,
any notice, demand or request required or permitted to be given under this
Agreement shall be in writing and shall be deemed sufficient when directed to
the Chief Executive Officer of the Company at the address shown on the
signature page of this Agreement (or such other address as the Company shall
designate in writing) and when delivered personally or three business days
after being postmarked, as certified or registered mail, with postage prepaid, and
addressed to the party to be notified at such party’s address as set forth
below or as subsequently modified by written notice.


 


(f)                                    Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.


 


(g)                                 Successors
And Assigns.  This Agreement shall be
binding upon the Company and its successors and assigns and shall inure to the
benefit of Indemnitee and Indemnitee’s heirs, legal representatives, executives
and administrators.


 


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(h)                                 Subrogation.  In the event of payment under this Agreement,
the Company shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee, who shall execute all documents required and
shall do all acts that may be necessary to secure such rights and to enable the
Company to effectively bring suit to enforce such rights.


 


(i)                                     Term.                  All agreements
and obligations of the Company contained herein shall continue during the
period that the Indemnitee is a director, officer or agent of the Company and
shall continue thereafter so long as Indemnitee shall be subject to any
possible claim or threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that Indemnitee was serving in the capacity referred to herein.


 


12.                                 Attorneys’ Fees.  In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms
hereof, and in the event Indemnitee is ultimately successful in such action, Indemnitee shall be entitled to be paid all court costs and
expenses, including reasonable attorneys’ fees, actually and reasonably
incurred by Indemnitee with respect to such action.  In the event of an action instituted by or in
the name of the Company under this Agreement or to enforce or interpret any of
the terms of this Agreement, Indemnitee shall be entitled to be paid all court
costs and expenses, including reasonable attorneys’ fees, actually and
reasonably incurred by Indemnitee in defense of such action (including with
respect to Indemnitee’s counterclaims and cross-claims made in such action),
unless the Company is ultimately successful in such action.


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.


 


 


	
  ACUSPHERE,
  INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Indemnitee

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address: 

  	
  Acusphere, Inc.

  	
  Address:

  	
   

  	
   

  
	
   

  	
  500 Arsenal
  Street

  	
   

  	
   

  	
   

  
	
   

  	
  Watertown, MA
  02472

  	
   

  	
   

  	
   

  
	
   

  	
  (617) 648-8800
  (phone)

  	
   

  	
   

  
	
   

  	
  (617) 926-4750
  (fax)

  	
   

  	
   

  
										



 


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Exhibit 1


UNDERTAKING


 


1.                                       This
Undertaking is submitted pursuant to the Indemnification Agreement dated as of                         
between Acusphere, Inc., a Delaware corporation (the “Company”), and the
undersigned (the “Agreement”). 
Capitalized terms used but not defined herein shall have the respective
meanings set forth in the Agreement.


 


2.                                       I
am requesting certain Expense Advances in connection with a Claim.


 


3.                                       I
hereby undertake to repay such Expense Advances if it shall ultimately be
determined that I am not entitled to be indemnified by the Company therefor
under the Agreement or otherwise.


 


4.                                       The
Expense Advances are, in general, all related to:


 


 


	
   

  	
  Signed:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   

  



 





















 


SCHEDULE OF INDEMNITEES


 


Sherri C. Oberg


Howard Bernstein, M.D.,
Ph.D.


Michael R. Slater


John F. Thero


Thomas M. Hanlon III


Richard Walovitch, Ph.D


Nancy Wetherbee


Kristin Rydzewski