Exhibit 10.2


 


[SCHEDULE B]


 


[Listing
of Additional Indebtedness]


 


PROMISSORY NOTE


 


To Master Security Agreement
No.                   


 


                    


(Date)


 


FOR
VALUE RECEIVED, Acusphere, Inc., a Delaware corporation, located at the
address stated below (“Maker”)
promises, jointly and severally if more than one, to pay to the order of Oxford Finance Corporation or any
subsequent holder hereof (each, a “Payee”)
at its office located at 133 N. Fairfax
Street, Alexandria, VA 22314 or at such other place as Payee or the
holder hereof may designate, the principal sum of                                 Dollars ($                               ), with interest on the unpaid principal
balance, from the date hereof through and including the dates of payment, at a fixed
interest rate of
                percent
(                     %)
per annum, in                     
(                )
consecutive                installments
of principal and interest as follows:


 


Periodic


 


Installment Amount


 


each (“Periodic Installment”)
and a final installment which shall be in the amount of the total outstanding
principal and interest. The first Periodic Installment shall be due and payable
on                                   
and the following Periodic Installments and the final installment shall be due
and payable on the first day of each succeeding month (each, a “Payment Date”) beginning                              .
Such installments have been calculated on the basis of a 360-day year of twelve
30-day months. Each payment may, at the option of the Payee, be calculated and
applied on an assumption that such payment would be made on its due date. Maker
agrees to pay any initial partial month interest payment from the date of this
Note to the first day of the following month (“Interim Interest”).


 


The
acceptance by Payee of any payment which is less than payment in full of all
amounts due and owing at such time shall not constitute a waiver of Payee’s
right to receive payment in full at such time or at any prior or subsequent
time.


 


The
Maker hereby expressly authorizes the Payee to insert the date value is
actually given in the blank space on the face hereof and on all related
documents pertaining hereto.


 


This Note may be secured by a security agreement, chattel mortgage,
pledge agreement or like instrument (each of which is hereinafter called a “Security Agreement” and any Security Agreement, this
Note and any other document evidencing or securing this loan is hereinafter
called a “Debt Document”).


 

















 


Time
is of the essence hereof. If any installment or any other sum due under this
Note or any Security Agreement is not received when due (subject to applicable
cure periods, if any), the Maker agrees to pay, in addition to the amount of
each such installment or other sum, a late payment charge of five percent (5%)
of the amount of said installment or other sum, but not exceeding any lawful
maximum. If (i) Maker fails to make payment of any amount due hereunder ;
or  (ii) Maker is in default under, or
fails to perform under any term or condition contained in any Security
Agreement, in either case, subject to applicable cure periods, if any, then the
entire principal sum remaining unpaid, together with all accrued interest
thereon and any other sum payable under this Note or any Security Agreement, at
the election of Payee, shall immediately become due and payable, with interest
thereon at the lesser of eighteen percent (18%) per annum or the highest rate
not prohibited by applicable law from the date of such accelerated maturity
until paid (both before and after any judgment).


 


Notwithstanding
anything to the contrary contained herein or in the Security Agreement, Maker
may prepay in full, but not in part, its entire Indebtedness hereunder by
payment of the entire Indebtedness plus an additional sum as a premium equal to
the following percentages of the remaining principal balance for the indicated
period:


 


From
the date of this Note until the first annual anniversary date of this Note: six
percent (6%)


 


From
the first annual anniversary date of this Note until the second annual
anniversary date of this Note: five percent (5%)


 


From
the second annual anniversary date of this Note until the third annual
anniversary date of this Note: four percent (4%)


 


From
the third annual anniversary date of this Note until the fourth annual
anniversary date of this Note: two percent (2%)


 


Notwithstanding
the foregoing, Maker may prepay in full, but not in part, its entire
Indebtedness hereunder by payment of the entire Indebtedness without having to
pay the additional sums described above as premiums in the event that Payee
does not consent on a timely basis to (i) any of the distributions described in
Section 3(i) of the Security Agreement, (ii) any of the payments described in
Section 3(j) of the Security Agreement or (iii) any of the transactions
described in Section 7(a)(xiv) of the Security Agreement.


 


The
Maker and all sureties, endorsers, guarantors or any others (each such person,
other than the Maker, an “Obligor”)
who may at any time become liable for the payment hereof jointly and severally
consent hereby to any and all extensions of time, renewals, waivers or
modifications of, and all substitutions or releases of, security or of any
party primarily or secondarily liable on this Note or any Security Agreement or
any term and provision of either, which may be made, granted or consented to by
Payee, and agree that suit may be brought and maintained against any one or
more of them, at the election of Payee without joinder of any other as a party
thereto, and that Payee shall not be required first to foreclose, proceed
against, or exhaust any security hereof in order to enforce payment of this
Note. The Maker and each Obligor hereby waives presentment, demand for payment,
notice of nonpayment, protest, notice of protest, notice of dishonor, and all
other notices in connection herewith, as well as filing of suit (if permitted
by law) and diligence in collecting this Note or enforcing any of the security
hereof, and agrees to pay (if and to the extent permitted by law) all expenses
incurred in collection, including Payee’s actual attorneys’ fees. Maker and
each Obligor agrees that fees not in excess of twenty percent (20%) of the
amount then due shall be deemed reasonable.


 


Maker
and Payee intend to strictly comply with all applicable federal and Virginia
laws, including applicable usury laws (or the usury laws of any jurisdiction
whose usury laws are deemed to apply to the Note or any other Debt Document
despite the intention and desire of the parties to apply the usury laws of the
Commonwealth of Virginia). Accordingly, the provisions of this paragraph shall
govern and control over every other provision of this Note or any other Debt
Document which conflicts or is inconsistent with this Section, even if such
provision declares that it controls. As used in this paragraph, the term “interest” includes the aggregate of all
charges, fees, benefits or other compensation which constitute interest under
applicable law, provided that, to the maximum extent permitted by
applicable law, (a) any non-principal payment shall be characterized as an
expense or as compensation for something other than the use, forbearance or
detention of money and not as interest, and (b) all interest at any time
contracted for, reserved, charged or received shall be amortized, prorated,
allocated and spread, in equal parts during the full term of the obligations. In
no event shall Maker or any other person be obligated to pay, or Payee have any
right or privilege to reserve, receive or retain, (a) any interest in excess of
the maximum amount of non-usurious interest permitted under the laws of the
Commonwealth of Virginia or the applicable laws (if any) of the United States
or of any other state, or (b) total interest in excess of the amount which
Payee could lawfully have contracted for, reserved, received, retained or
charged had the interest been calculated for the full term of the obligations. On
each day, if any, that the interest rate (the “Stated Rate”) called for
under this Note or any other Debt Document exceeds the maximum non-usurious
rate, the rate at which interest shall accrue shall automatically be fixed by
operation of this sentence at the maximum non-usurious rate for that day. Thereafter,
interest shall accrue at the Stated Rate unless and until the Stated Rate again
exceeds the maximum non-usurious rate, in which case, the provisions of the
immediately 


 

















 


preceding
sentence shall again automatically operate to limit the interest accrual rate
to the maximum non-usurious rate. The daily interest rates to be used in
calculating interest at the maximum non-usurious rate shall be determined by
dividing the applicable maximum non-usurious rate by the number of days in the
calendar year for which such calculation is being made. None of the terms and
provisions contained in this Note or in any other Debt Document which directly
or indirectly relate to interest shall ever be construed without reference to
this paragraph, or be construed to create a contract to pay for the use,
forbearance or detention of money at an interest rate in excess of the maximum
non-usurious rate. If the term of any obligation is shortened by reason of
acceleration of maturity as a result of any Default or by any other cause, or
by reason of any required or permitted prepayment, and if for that (or any
other) reason Payee at any time, including but not limited to, the stated
maturity, is owed or receives (and/or has received) interest in excess of
interest calculated at the maximum non-usurious rate, then and in any such
event all of any such excess interest shall be canceled automatically as of the
date of such acceleration, prepayment or other event which produces the excess,
and, if such excess interest has been paid to Payee, it shall be credited pro
tanto against the then-outstanding principal balance of Maker’s obligations
to Payee, effective as of the date or dates when the event occurs which causes
it to be excess interest, until such excess is exhausted or all of such
principal has been fully paid and satisfied, whichever occurs first, and any
remaining balance of such excess shall be promptly refunded to its payor.


 


THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY
OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN
MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY
RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN
MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF
ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS.)  THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED
TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.


 


This
Note and any Security Agreement constitute the entire agreement of the Maker
and Payee with respect to the subject matter hereof and supercedes all prior
understandings, agreements and representations, express or implied.


 


No
variation or modification of this Note, or any waiver of any of its provisions
or conditions, shall be valid unless in writing and signed by an authorized
representative of Maker and Payee. Any such waiver, consent, modification or
change shall be effective only in the specific instance and for the specific
purpose given.


 


Any
provision in this Note or any Security Agreement which is in conflict with any
statute, law or applicable rule shall be deemed omitted, modified or altered to
conform thereto.


 


Upon
receipt of an affidavit of an officer of Payee as to the loss, theft,
destruction or mutilation of this Note or any Debt Document which is not of
public record, and, in the case of any such loss, theft, destruction or
mutilation, upon surrender and cancellation of such Note or other Debt
Document, Maker will issue, in lieu thereof, a replacement Note or other Debt
Document in the same principal amount thereof and otherwise of like tenor.


 


It
is understood and agreed that this Note and all of the Debt Documents were
negotiated and have been or will be delivered to Payee in the Commonwealth of
Virginia, which State the parties agree has a substantial relationship to the
parties and to the underlying transactions embodied by this Note and the Debt
Documents. Maker agrees to furnish to Payee at Payee’s office in Alexandria,
VA, all further instruments, certifications and documents to be furnished
hereunder. The parties also agree that if collateral is pledged to secure the
debt evidenced by this Note, that the state or states in which such collateral
is located each have a substantial relationship to the parties and to the
underlying transaction embodied by this Note and the Debt Documents.


 


MAKER
AGREES THAT THE PAYEE OF THIS NOTE SHALL HAVE THE OPTION BY WHICH STATE LAWS
THIS NOTE SHALL BE GOVERNED AND CONSTRUED: (A) THE LAWS OF THE COMMONWEALTH OF
VIRGINIA; OR (B) IF COLLATERAL HAS BEEN PLEDGED TO SECURE THE DEBT EVIDENCED BY
THIS NOTE, THEN BY THE LAWS OF THE STATE OR STATES WHERE THE COLLATERAL IS
LOCATED, AT PAYEE’S OPTION. THIS CHOICE OF STATE LAWS IS EXCLUSIVE TO THE PAYEE
OF THIS NOTE. MAKER SHALL NOT HAVE ANY OPTION TO CHOOSE THE LAWS BY WHICH


 

















 


THIS
NOTE SHALL BE GOVERNED. MAKER AND GUARANTORS HEREBY CONSENT TO THE EXERCISE OF
JURISDICTION OVER IT BY ANY FEDERAL COURT SITTING IN VIRGINIA OR ANY VIRGINIA
COURT SELECTED BY PAYEE, FOR THE PURPOSES OF ANY AND ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THE NOTE, THE LOAN AGREEMENT AND ALL OTHER
DOCUMENTS. MAKER AND GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH PROCEEDING BROUGHT IN ANY SUCH COURT, ANY CLAIM
BASED ON THE CONSOLIDATION OF PROCEEDINGS IN SUCH COURTS IN WHICH PROPER VENUE
MAY LIE IN DIVERGENT JURISDICTIONS, AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. MAKER AND
GUARANTORS HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE, THE OTHER DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREBY.


 


 


	
   

  	
  Acusphere, Inc.

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  (Witness)

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
  (Print name)

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
  (Address)

  	
   

  
	
   

  	
  Federal Tax ID #:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address: