Exhibit 10.1


 


Form of 2005 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
2005 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 2005 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”), but the Company does not represent or warrant that this
option so qualifies.  To the extent that
this option does not qualify as an incentive stock option, it shall be a
non-statutory stock option.


 


3.                                       Vesting
of Option.


 


(a)                                  Vesting
if Business Relationship Continues. The Optionee may exercise the vested
portion of 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.


 


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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 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 9,
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.


 


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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.


 


7.                                       Payment
of Exercise Price.  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:


 


(a)                                  in cash, by certified or bank check or other
instrument acceptable to the Administrator and payable to the order of the
Company;


 


(b)                                 through the delivery (or attestation to the
ownership) of shares of Stock that have been purchased by the Optionee on the
open market or that are beneficially owned by the Optionee and are not then
subject to restrictions under any Company plan. 
Such surrendered shares shall be valued at Fair Value on the exercise
date; or


 


(c)                                  By the Optionee delivering to the Company a
properly executed exercise notice together with irrevocable instructions to a
broker to promptly deliver to the Company cash or a check payable and
acceptable to the Company for the purchase price; provided that in the event
the Optionee chooses to pay the purchase price as so provided, the Optionee and
the broker shall comply with such procedures and enter into such agreements of
indemnity and other agreements as the Administrator shall prescribe as a
condition of such payment procedure.


 


Payment instruments will be received subject to
collection.  The transfer to the Optionee
on the records of the Company or the transfer agent of the shares of Stock to
be purchased pursuant to the exercise of a Stock Option will be contingent upon
receipt from the Optionee (or a purchaser acting in his stead in accordance
with the provisions of the Stock Option) by the Company of the full purchase
price for such shares and the fulfillment of any other requirements included
herein or applicable provisions of laws (including the satisfaction of any
withholding taxes that the Company is obligated to withhold with respect to the
Optionee).  In the event the Optionee
chooses to pay the purchase price by previously-owned shares of Stock through
the attestation method, the number of shares of Stock transferred to the
optionee upon the exercise of the Stock Option shall be net of the number of
shares attested to.


 


8.                                       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, 


 


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such notice shall be
accompanied by appropriate proof of the right of such person or persons to
exercise this option.


 


9.                                       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.


 


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


 


11.                                 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.


 


12.                                 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.


 


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


 


14.                                 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.


 


15.                                 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.


 


16.                                 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.


 


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17                                    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, 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 9
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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