Exhibit 10.4


 


FORM OF 2003 STOCK OPTION AND
INCENTIVE PLAN INCENTIVE STOCK OPTION AGREEMENT


(4 YEAR VESTING SCHEDULE)


 


ACUSPHERE, INC.


INCENTIVE STOCK OPTION AGREEMENT


 


Acusphere,
Inc. (the “Company”) hereby grants the following stock option pursuant
to its 2003 Stock Option and Incentive Plan. The terms and conditions attached
hereto are also a part hereof.


 


	
  Name of optionee
  (the “Optionee”):

  	
   

  
	
   

  	
   

  
	
  Date of this
  option grant:

  	
   

  
	
   

  	
   

  
	
  Number of shares of the Company’s Common Stock
  subject to this option (“Shares”):

  	
   

  
	
   

  	
   

  
	
  Option exercise
  price per share:

  	
   

  
	
   

  	
   

  
	
  Shares that are
  subject to vesting schedule:

  	
   

  
	
   

  	
   

  
	
  Vesting Start
  Date:

  	
   

  



 


Vesting
Schedule:


 


	
  Vesting Start
  Date:

  	
  0%

  
	
   

  	
   

  
	
  On or after [ ]
  but prior to [ ]:

  	
  2.083% per month

  
	
   

  	
   

  
	
  On or after [ ]:

  	
  100% [four years after Vesting Start Date]

  
	
   

  	
   

  
	
  All vesting is
  dependent on the continuation of a Business Relationship with the Company, as
  provided herein.

  
	
   

  	
   

  
	
  Payment
  alternatives:

  	
  Section 7(a)
  (i) through (iii)

  



 


This
option satisfies in full all commitments that the Company has to the Optionee
with respect to the issuance of stock, stock options or other equity
securities.


 


	
   

  	
   

  	
  Acusphere, Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature of
  Optionee

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name of Officer:

  
	
  Street Address

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
  City/State/Zip
  Code

  	
   

  	
   

  	
   

  



 





















 


ACUSPHERE, INC.


 


INCENTIVE STOCK OPTION AGREEMENT — INCORPORATED TERMS
AND CONDITIONS


 


1.             Grant
Under Plan.  This option is granted
pursuant to and is governed by the Company’s 2003 Stock Option and Incentive
Plan (the “Plan”) and, unless the context otherwise requires, terms used
herein shall have the same meaning as in the Plan.


 


2.             Grant
as Incentive Stock Option.  This
option is intended to qualify as an incentive stock option under Section 422
of the Internal Revenue Code of 1986, as amended, and the regulations thereunder
(the “Code”).


 


3.             Vesting
of Option.


 


(a)           Vesting
if Business Relationship Continues. The Optionee may exercise this option
on or after the date of this option grant for the number of shares of Common
Stock, if any, set forth on the cover page hereof. If the Optionee has
continuously maintained a Business Relationship (as defined below) with the
Company through the dates listed on the vesting schedule set forth on the
cover page hereof, the Optionee may exercise this option for the additional
number of shares of Common Stock set opposite the applicable vesting date. Notwithstanding
the foregoing, the Board may, in its discretion, accelerate the date that any
installment of this option becomes exercisable. The foregoing rights are
cumulative and may be exercised only before the date which is ten years from
the date of this option grant.


 


(b)           Definitions.
The following definitions shall apply:


 


“Business Relationship” means service to the
Company or its successor in the capacity of an employee, officer, director or
consultant.


 


“Cause” means: (i) gross negligence or willful
malfeasance in the performance of the Optionee’s work or a breach of fiduciary
duty or confidentiality obligations to the Company by the Optionee; (ii)
failure to follow the proper directions of the Optionee’s direct or indirect
supervisor after written notice of such failure; (iii) the commission by the
Optionee of illegal conduct relating to the Company; (iv) disregard by the
Optionee of the material rules or material policies of the Company which has
not been cured within 15 days after notice thereof from the Company; or (v)
intentional acts on the part of the Optionee that have generated material
adverse publicity toward or about the Company.


 


4.             Termination
of Business Relationship.


 


(a)           Termination.  If the Optionee’s Business Relationship with
the Company ceases, voluntarily or involuntarily, with or without cause, no
further installments of this


 


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option
shall become exercisable, and this option shall expire (may no longer be
exercised) after the passage of sixty days from the date of termination, but in
no event later than the scheduled expiration date. Any determination under this
agreement as to the status of a Business Relationship or other matters referred
to above shall be made in good faith by the Board of Directors of the Company.


 


(b)           Employment
Status. For purposes hereof, with respect to employees of the Company,
employment shall not be considered as having terminated during any leave of absence if such leave of absence has been approved
in writing by the Company and if such written approval contractually obligates
the Company to continue the employment of the Optionee after the approved
period of absence; in the event of such an approved leave of absence, vesting
of this option shall be suspended (and the period of the leave of absence shall
be added to all vesting dates) unless otherwise provided in the Company’s
written approval of the leave of absence. For purposes hereof, a termination of
employment followed by another Business Relationship shall be deemed a
termination of the Business Relationship with all vesting to cease unless the
Company enters into a written agreement related to such other Business
Relationship in which it is specifically stated that there is no termination of
the Business Relationship under this agreement. This option shall not be
affected by any change of employment within or among the Company and its
Subsidiaries so long as the Optionee continuously remains an employee of the
Company or any Subsidiary.


 


(c)           Termination
for Cause.  If the Business
Relationship of the Optionee is terminated for Cause (as defined above), this
option may no longer be exercised from and after the Optionee’s receipt of
written notice of such termination.


 


5.             Death;
Disability.


 


(a)           Death.  Upon the death of the Optionee while the
Optionee is maintaining a Business Relationship with the Company, this option
may be exercised, to the extent otherwise exercisable on the date of the
Optionee’s death, by the Optionee’s estate, personal representative or
beneficiary to whom this option has been transferred pursuant to Section 10,
only at any time within 180 days after the date of death, but not later
than the scheduled expiration date.


 


(b)           Disability.  If the Optionee ceases to maintain a Business
Relationship with the Company by reason of his or her disability, this option
may be exercised, to the extent otherwise exercisable on the date of cessation
of the Business Relationship, only at any time within 180 days after such
cessation of the Business Relationship, but not later than the scheduled
expiration date. For purposes hereof, “disability” means “permanent
and total disability” as defined in Section 22(e)(3) of the Code.


 


6.             Partial
Exercise.  This option may be
exercised in part at any time and from time to time within the above limits,
except that this option may not be exercised for a fraction of a share.


 


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7.             Payment
of Exercise Price.


 


(a)           Payment
Options.  The exercise price shall be
paid by one or any combination of the following forms of payment that are
applicable to this option, as indicated on the cover page hereof:


 


(i)            by check
payable to the order of the Company; or


 


(ii)           delivery
of an irrevocable and unconditional undertaking, satisfactory in form and
substance to the Company, by a creditworthy broker to deliver promptly to the
Company sufficient funds to pay the exercise price, or delivery by the Optionee
to the Company of a copy of irrevocable and unconditional instructions,
satisfactory in form and substance to the Company, to a creditworthy broker to
deliver promptly to the Company cash or a check sufficient to pay the exercise
price; or


 


(iii)          subject
to Section 7(b) below, if the Common Stock is then traded on a national
securities exchange or on the Nasdaq National Market (or successor trading
system), by delivery of shares of Common Stock having a fair market value equal
as of the date of exercise to the option price.


 


In the case of (iii) above, fair market value as of
the date of exercise shall be determined as of the last business day for which
such prices or quotes are available prior to the date of exercise and shall
mean (i) the last reported sale price (on that date) of the Common Stock
on the principal national securities exchange on which the Common Stock is
traded, if the Common Stock is then traded on a national securities exchange;
or (ii) the last reported sale price (on that date) of the Common Stock on
the Nasdaq National Market (or successor trading system), if the Common Stock
is not then traded on a national securities exchange.


 


(b)           Limitations
on Payment by Delivery of Common Stock. 
If Section 7(a)(iii) is applicable, and if the Optionee delivers
Common Stock held by the Optionee (“Old Stock”) to the Company in full
or partial payment of the exercise price and the Old Stock so delivered is
subject to restrictions or limitations imposed by agreement between the
Optionee and the Company, an equivalent number of Shares shall be subject to
all restrictions and limitations applicable to the Old Stock to the extent that
the Optionee paid for the Shares by delivery of Old Stock, in addition to any
restrictions or limitations imposed by this agreement. Notwithstanding the
foregoing, the Optionee may not pay any part of the exercise price hereof by
transferring Common Stock to the Company unless such Common Stock has been
owned by the Optionee free of any substantial risk of forfeiture for at least six months.


 


8.             Securities
Laws Restrictions on Resale. Until registered under the Securities Act of
1933, as amended, or any successor statute (the “Securities Act”), the
Shares will be illiquid


 


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and will be deemed to be “restricted
securities” for purposes of the Securities Act. Accordingly, such shares must
be sold in compliance with the registration requirements of the Securities Act
or an exemption therefrom and may need to be held indefinitely. Unless the
Shares have been registered under the Securities Act, each certificate
evidencing any of the Shares shall bear a restrictive legend specified by the
Company.


 


9.             Method
of Exercising Option.  Subject to the
terms and conditions of this agreement, this option may be exercised by written
notice to the Company at its principal executive office, or to such transfer
agent as the Company shall designate. Such notice shall state the election to
exercise this option and the number of Shares for which it is being exercised
and shall be signed by the person or persons so exercising this option. Such
notice shall be accompanied by payment of the full purchase price of such
shares, and the Company shall deliver a certificate or certificates
representing such shares as soon as practicable after the notice shall be
received. Such certificate or certificates shall be registered in the name of
the person or persons so exercising this option (or, if this option shall be
exercised by the Optionee and if the Optionee shall so request in the notice
exercising this option, shall be registered in the name of the Optionee and
another person jointly, with right of survivorship). In the event this option
shall be exercised, pursuant to Section 5 hereof, by any person or persons
other than the Optionee, such notice shall be accompanied by appropriate proof
of the right of such person or persons to exercise this option.


 


10.           Option
Not Transferable.  This option is not
transferable or assignable except by will or by the laws of descent and
distribution. During the Optionee’s lifetime only the Optionee can exercise
this option.


 


11.           No
Obligation to Exercise Option.  The
grant and acceptance of this option imposes no obligation on the Optionee to
exercise it.


 


12.           No
Obligation to Continue Business Relationship.  Neither the Plan, this agreement, nor the
grant of this option imposes any obligation on the Company to continue the
Optionee in employment or other Business Relationship.


 


13.           Adjustments.  Except as is expressly provided in the Plan
with respect to certain changes in the capitalization of the Company, no
adjustment shall be made for dividends or similar rights for which the record
date is prior to such date of exercise.


 


14.           Withholding
Taxes.  If the Company in its
discretion determines that it is obligated to withhold any tax in connection
with the exercise of this option, or in connection with the transfer of, or the
lapse of restrictions on, any Common Stock or other property acquired pursuant
to this option, the Optionee hereby agrees that the Company may withhold from
the Optionee’s wages or other remuneration the appropriate amount of tax. At
the discretion of the Company, the amount required to be withheld may be
withheld in cash from such wages or other remuneration or in kind from the
Common Stock or other property otherwise deliverable to the Optionee on
exercise of this option. The Optionee further agrees that, if the Company does
not withhold an amount from the Optionee’s wages or other remuneration
sufficient to satisfy the


 


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withholding obligation of
the Company, the Optionee will make reimbursement on demand, in cash, for the
amount underwithheld.


 


15.           Early
Disposition.  The Optionee agrees to
notify the Company in writing immediately after the Optionee transfers any
Shares, if such transfer occurs on or before the later of (a) the date
that is two years after the date of this agreement or (b) the date that is
one year after the date on which the Optionee acquired such Shares. The
Optionee also agrees to provide the Company with any information concerning any
such transfer required by the Company for tax purposes.


 


16.           Lock-up
Agreement. The Optionee agrees that in the event that the Company effects
an underwritten public offering of Common Stock registered under the Securities
Act, the Shares may not be sold, offered for sale or otherwise disposed of,
directly or indirectly, without the prior written consent of the managing
underwriter(s) of the offering, for such period of time after the execution of
an underwriting agreement in connection with such offering that all of the
Company’s then directors and executive officers agree to be similarly bound. Any
such sale or disposition shall be made in accordance with the Company’s insider
trading policy, as amended and in effect from time to time.


 


17.           Arbitration.  Any dispute, controversy, or claim arising
out of, in connection with, or relating to the performance of this agreement or
its termination shall be settled by arbitration in the Commonwealth of
Massachusetts, pursuant to the rules then obtaining of the American Arbitration
Association. Any award shall be final, binding and conclusive upon the parties
and a judgment rendered thereon may be entered in any court having jurisdiction
thereof.


 


18.           Provision
of Documentation to Optionee.  By
signing this agreement the Optionee acknowledges receipt of a copy of this
agreement and a copy of the Plan.


 


19            Miscellaneous.


 


(a)           Notices.  All notices hereunder shall be in writing and
shall be deemed given when sent by mail, if to the Optionee, to the address set
forth below or at the address shown on the records of the Company, and if to
the Company, to the Company’s principal executive offices, attention of the
Corporate Secretary.


 


(b)           Entire
Agreement; Modification.  This
agreement constitutes the entire agreement between the parties relative to the
subject matter hereof, and supersedes all proposals, written or oral, and all
other communications between the parties relating to the subject matter of this
agreement. This agreement may be modified, amended or rescinded only by a
written agreement executed by both parties.


 


(c)           Fractional
Shares. If this option becomes exercisable for a fraction of a share
because of the adjustment provisions contained in the Plan, such fraction shall
be rounded down.


 


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(d)           Issuances
of Securities; Changes in Capital Structure. Except as expressly provided
herein or in the Plan, no issuance by the Company of shares of stock of any
class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares subject to this option. No adjustments need be made
for dividends paid in cash or in property other than securities of the Company.
If there shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split,
combination or exchange of shares, spin-off, split-up or other similar change
in capitalization or event, the restrictions contained in this agreement shall
apply with equal force to additional and/or substitute securities, if any,
received by the Optionee in exchange for, or by virtue of his or her ownership
of, Shares, except as otherwise determined by the Board.


 


(e)           Severability.  The invalidity, illegality or
unenforceability of any provision of this agreement shall in no way affect the
validity, legality or enforceability of any other provision.


 


(f)            Successors
and Assigns.  This agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, subject to the limitations set forth in Section 10
hereof.


 


(g)           Governing
Law.  This agreement shall be
governed by and interpreted in accordance with the laws of the State of
Delaware without giving effect to the principles of the conflicts of laws
thereof.


 


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