Exhibit
10.1


 


CONTRACT
WORK AUTHORIZATION (Form 1) RELEASE NO. 2


 


for


ENGINEERING
AND


CONSTRUCTION
MANAGEMENT SERVICES


 


Between


 


ACUSPHERE,
INC. (“ACUSPHERE/OWNER”)


 


and


 


PARSONS
COMMERCIAL TECHNOLOGY INC. (“PARSONS”)


 


 


All work authorized by Acusphere
and performed by Parsons in accordance with this Contract Work Authorization
shall be governed by the “Terms and Conditions for Engineering, Procurement and
Construction Management Services between Acusphere, Inc. and Parsons Commercial
Technology Group Inc.” (the EPCM), effective date July 6, 2004.


 


 


CONTRACT WORK
AUTHORIZATION RELEASE 2


(Form 1)


FOR


ENGINEERING AND
CONSTRUCTION MANAGEMENT SERVICES


 


THIS Contract Work
Authorization for the continuing performance of engineering, construction
management, procurement services and placement of subcontracts (where
applicable) is executed December 10, 2004 and between ACUSPHERE, INC., with
principal offices at 500 Arsenal Street, Watertown, Massachusetts 02472 (“Acusphere/Owner”)
and PARSONS COMMERCIAL TECHNOLOGY GROUP INC. (“PARSONS”), with principal
offices for this project located at 150 Federal Street, Boston, Massachusetts
02110.


 


1





















 


This Contract Work
Authorization, the scope of which is defined below, is intended to cover
engineering, construction management, procurement services and placement of
subcontracts (where applicable) (authorized to date by Acusphere) to be
provided by Parsons for Acusphere from July 6, 2004 through February 28, 2005.
This Contract Work Authorization (Form 1) Release 2 extends Parsons performance
period from December 10, 2004, as previously authorized per Contract Work
Authorization (Form 1) Release 1, to February 28, 2005.


 


IN CONSIDERATION of the
covenants hereinafter set forth, the parties hereto mutually agree as follows:


 


ARTICLE I            SCOPE OF SERVICES


 


1.1           Description of Services


 


Parsons shall continue to
perform engineering construction management and other services as required
(hereinafter referred to as the “Services”) in connection with Owner’s aseptic
pharmaceutical manufacturing facility located at 890 East Street, Tewksbury,
Massachusetts (the “Facilities”), as previously set forth and described in
Exhibit 1, which is attached to Contract Work Authorization (Form 1) Release Number
1, which was executed by the parties November 11, 2004.


 


ARTICLE
II                                 ESTIMATED
COST


 


	
  Previous total
  estimated cost up through and including Contract Work Authorization (Form 1)
  Number 1

  	
   

  	
  $

  	
  5,559,984.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Estimated
  increase based on Contract Work Authorization (Form 1) Number 2

  	
   

  	
  $

  	
  446,016.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Revised total
  estimated cost up through this Contract Work Authorization (Form 1) Number 2

  	
   

  	
  $

  	
  6,006,000.00

  	
   

  



 


It is anticipated that
the revised estimated costs added herein will be incurred prior to the end of
February 28, 2005 and that, in accordance with the terms of the EPCM and
Contract Work Authorization (Form 1) Release Nos. 1 and 2, if Acusphere were to
terminate this contract during this term or elect to not extend this contract
beyond February 28, 2005, Acusphere will be liable for  costs which 
exceed the amounts stated above, relating primarily to costs associated
with materials purchased by subcontractors for this project.  Parson’s has presented data to Acusphere
suggesting, based upon Parsons experience and the terms of the subcontracts,
that the maximum amount of such additional costs (although not guaranteed)
should not be more than an additional two million dollars 


 


2





















 


($2,000,000) and would
likely be less than this amount.


 


ARTICLE III          TERMS AND CONDITIONS


 


THE PARTIES
ACKNOWLEDGE AND AGREE THE TERMS AND CONDITIONS OF THIS AGREEMENT HAVE BEEN
FREELY, FAIRLY AND THOROUGHLY NEGOTIATED. FURTHER, THE PARTIES ACKNOWLEDGE AND
AGREE SUCH TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO THOSE RELATING TO
WAIVERS, ALLOCATIONS OF, RELEASES FROM, INDEMNITES AGAINST AND LIMITATIONS OF
LIABILITY, WHICH MAY REQUIRE CONSPICUOUS IDENTIFICATION, HAVE NOT BEEN SO
IDENTIFIED BY MUTUAL AGREEMENT AND THE PARTIES HAVE ACTUAL KNOWLEDGE OF THE
INTENT AND EFFECT OF SUCH TERMS AND CONDITIONS. EACH PARTY ACKNOWLEDGES THAT IN
EXECUTING THIS AGREEMENT IT RELIED SOLELY ON ITS OWN JUDGEMENT, BELIEF, AND
KNOWLEDGE, AND SUCH ADVICE AS IT MAY HAVE RECEIVED FROM ITS OWN COUNSEL, AND IT
HAS NOT BEEN INFLUENCED BY ANY REPRESENTATION OR STATEMENTS MADE BY ANY OTHER
PARTY OR SUCH OTHER PARTY’S COUNSEL. NO PROVISION IN THIS AGREEMENT IS TO BE
INTERPRETED FOR OR AGAINST ANY PARTY BECAUSE THAT PARTY OR ITS COUNSEL DRAFTED
SUCH PROVISION.


 


ARTICLE IV          SCHEDULE


 


It is estimated
that the work covered by the Contract Work Authorization shall commence and be
completed as noted below:


 


3





















 


Work commenced on
July 6, 2004 and shall be suspended at the end of the day February 28, 2005
unless a subsequent authorization to continue is received by Parsons from
Acusphere on or prior to February 28, 2005. 
Notwithstanding the above, Parsons agrees not to award a subcontract for
process piping until either Acusphere and Parsons have agreed to, and Acusphere
has authorized, contract costs beyond February 28, 2005 or express written
approval for such subcontract is approved by Acusphere’s Chief Executive
Officer.


 


All
other terms and conditions for the Contract for Engineering, Procurement and
Construction Management Services, as previously amended by Contract Work
Authorization Numbers 0 through 1 remain unchanged.


 


IN
WITNESS WHEREOF, the parties hereto have executed this contract, document as of
the date and year first above written.


 


	
  ACUSPHERE,
  INC. (“ACUSPHERE”)

  	
  PARSONS
  COMMERCIAL TECHNOLOGY GROUP INC. (“PARSONS”)

  
	
   

  	
   

  
	
  /s/
  Sherri C. Oberg

  	
   

  	
  /s/
  Daniel Mariani

  	
   

  
	
   

  	
   

  
	
  By:
  Sherri C. Oberg

  	
   

  	
  By:
  Daniel Mariani

  	
   

  
	
   

  	
   

  
	
  President
  and CEO

  	
   

  	
  Senior
  Vice President

  	
   

  
	
  Title

  	
  Title

  
	
   

  	
   

  



 


4