Exhibit 10.5


 


FORM OF 2003 STOCK OPTION AND
INCENTIVE PLAN NON-STATUTORY STOCK OPTION AGREEMENT


(4 YEAR VESTING SCHEDULE)


 


ACUSPHERE, INC.


Non-Statutory 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.


 


NON-STATUTORY 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 Non-Qualified Stock Option. This option is a non-statutory stock option
and is not 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.           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.


 


16.           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.


 


17.           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.


 


18.           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.


 


(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,


 


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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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