[SCHEDULE B]


 


 


 


 


[Listing
of Additional Indebtedness]


 


 


 


Exhibit
10.2


 


 


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: