Exhibit 10.1


 


ACUSPHERE, INC.




EXECUTIVE RETENTION BONUS PLAN


 


Effective as of the Effective Date, Acusphere, Inc. (the “Company”)
sets forth herein the terms of its Executive Retention Bonus Plan (the “Plan”)
as follows:


 


SECTION 1.                                PURPOSE


 


The Board of Directors of the Company (the “Board”) believes that it is
in the best interests of the Company to encourage the continued dedication to
the Company of its executive officers in the face of potentially distracting
circumstances arising from the Company’s financial condition and therefore
desires to provide incentives to selected employees to remain employed through
the date on which the Company receives a complete response letter from the U.S.
Food and Drug Administration (“FDA”) in response to the Company’s new drug
application (hereinafter, such date is referred to as the “PDUFA Date.”)


 


SECTION 2.                                DEFINITIONS


 


(a)                                  “Annual
Base Salary” means, with respect to an Employee, the annual base salary payable
to the Employee by the Company as of the Effective Date, before taking into
account the voluntary 10% or 20% reduction in base salary taken by the Employee
on August 1, 2008.


 


(b)                                 “Board”
means the Board of Directors of the Company.


 


(c)                                  “Cause”
means and shall be limited to:  (i) neglect
of or refusal to perform, other than as a result of sickness, accident or
similar cause beyond the Employee’s control, any duty or responsibility as an
Employee of the Company after notice from the Company; (ii) any material
breach of any agreement with the Company; (iii) dishonesty with respect to
the Company or the commission of any crime (other than minor traffic
violations); or (iv) any material misconduct or material neglect of duties
in connection with the business affairs of the Company.


 


(d)                                 “Code”
means Internal Revenue Code of 1986, as amended.


 


(e)                                  “Company”
means Acusphere, Inc., or its successor.


 


(f)                                    “Employee”
means a regular full-time employee of the Company whose name is listed on
Schedule A attached hereto.


 


(g)                                 “Effective
Date” means December 12, 2008.


 


(h)                                 “Payment
Date” means the day which is fifteen days after the PDUFA Date.


 

















 


(i)                                     “Stay
Period” means the period commencing on December 12, 2008 and ending on the
Payment Date.


 


SECTION 3.                                RETENTION
BONUS


 


(a)                                  The
Company shall provide retention bonuses to selected Employees who have
performed services and maintained professionalism and job flexibility during
the Stay Period and who remain in their positions throughout the Stay Period,
or who are terminated by the Company as a result of termination of their position
prior to the Payment Date.  Such
retention bonuses shall be payable in a lump sum on the Payment Date, or upon
such termination of employment by the Company, if earlier.  The amount of the retention bonus shall be
equal to one-third of the Employee’s Annual Base Salary.


 


(b)                                 To
the extent the Employee receives severance payments under the Executive
Employment Agreement between the Employee and the Company as a result of
termination of employment prior to the Payment Date, the Employee will not be
eligible for payment hereunder in connection with such termination of
employment.


 


(c)                                  If
an Employee is terminated for Cause, or any other reason other than a
termination of the Employee’s position, or resigns his or her employment during
the Stay Period, he or she shall not be entitled to any retention bonus.


 


SECTION 4.                                PARACHUTE
PAYMENT


 


In the event any payment to any Employee under this Plan, when combined
with any other compensation payment that is contingent on a change in control
of the Company, exceeds in the aggregate the amount that may be deducted by the
Company by reason of the operation of Section 280G of the Code, the amount
of any payment to such Employee under this Plan shall be reduced to the maximum
amount which can be deducted by the Company.


 


SECTION 5.                                WITHHOLDING


 


All payments required to be made by the Company hereunder to an
Employee shall be subject to the withholding of such amounts relating to taxes
as the Company reasonably may determine it should withhold pursuant to any
applicable law or regulation.


 


SECTION 6.                                ADMINISTRATION


 


The Plan shall be administered by either the Board or the person(s) appointed
by the Board from time to time to administer the Plan (in either case, the “Administrator”).  The Administrator shall have the power and
authority to interpret the terms and provisions of the Plan, to make all
determinations it deems advisable for the administration of the Plan, to decide
all disputes arising in connection with the Plan and to otherwise supervise the
administration of the Plan.  All
decisions and interpretations of the Administrator shall be binding on all
persons.


 


2

















 


SECTION 7.                                GOVERNING
LAW


 


This Plan shall be governed by the laws of the United States to the
extent applicable and otherwise by the laws of the Commonwealth of
Massachusetts, excluding the choice of law rules thereof.


 


SECTION 8.                                SEVERABILITY


 


If any part of any provision of this Plan shall be invalid or
unenforceable under applicable law, such part shall be ineffective to the
extent of such invalidity or unenforceability only, without in any way
affecting the remaining parts of such provision or the remaining provisions of
this Plan.


 


SECTION 9.                                DISCLAIMER
OF RIGHTS


 


No provision in this Plan shall be construed to confer upon any
individual the right to remain in the employ or service of the Company, or to
interfere in any way with any contractual or other right or authority of the
Company either to increase or decrease the compensation or other payments to
any individual at any time, or to terminate any employment or other
relationship between any individual and the Company. The obligation of the
Company to pay any benefits pursuant to this Plan shall be interpreted as a
contractual obligation to pay only those amounts described herein, in the
manner and under the conditions prescribed herein. The Plan shall in no way be
interpreted to require the Company to transfer any amounts to a third party
trustee or otherwise hold any amounts in trust or escrow for payment to any
participant or beneficiary under the terms of the Plan.


 


3

















 


Schedule A


 


Sherri Oberg


 


Larry Gyenes


 


Michael Slater


 


Rick Walovitch


 


Don Chickering


 


4