Exhibit 10.2


 


[SCHEDULE B]


 


[Listing of Additional Indebtedness]


 


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:

  	
   

  	
   

  
									



 


 


	
  Original equipment line
  with Oxford

  	
   

  	
   

  	
   

  	
  7,000,000.00

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Draw downs on the equipment
  line:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Interest

  	
   

  	
  Term

  	
   

  	
  Maturity

  	
   

  	
  Monthly

  	
   

  
	
   

  	
   

  	
  Sched. No.

  	
   

  	
  Date

  	
   

  	
  Principal Amount

  	
   

  	
  Rate

  	
   

  	
  (mos.)

  	
   

  	
  Date

  	
   

  	
  Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Schedule 001

  	
   

  	
  6/23/2005

  	
   

  	
  113,523.69

  	
   

  	
  10.26

  	
  %

  	
  36

  	
   

  	
  6/1/2008

  	
   

  	
  3,645.81

  	
   

  
	
   

  	
   

  	
  Schedule 002

  	
   

  	
  6/23/2005

  	
   

  	
  244,074.48

  	
   

  	
  10.39

  	
  %

  	
  48

  	
   

  	
  6/1/2009

  	
   

  	
  6,182.41

  	
   

  
	
   

  	
   

  	
  Schedule 003

  	
   

  	
  8/29/2005

  	
   

  	
  245,655.16

  	
   

  	
  10.32

  	
  %

  	
  36

  	
   

  	
  8/1/2008

  	
   

  	
  7,895.60

  	
   

  
	
   

  	
   

  	
  Schedule 004

  	
   

  	
  8/29/2005

  	
   

  	
  875,929.01

  	
   

  	
  10.39

  	
  %

  	
  48

  	
   

  	
  8/1/2009

  	
   

  	
  22,187.28

  	
   

  
	
   

  	
   

  	
  Schedule 005

  	
   

  	
  9/28/2005

  	
   

  	
  897,513.42

  	
   

  	
  10.39

  	
  %

  	
  48

  	
   

  	
  9/1/2005

  	
   

  	
  22,734.01

  	
   

  
	
   

  	
   

  	
  Schedule 006

  	
   

  	
  11/16/2005

  	
   

  	
  1,314,719.66

  	
   

  	
  10.75

  	
  %

  	
  48

  	
   

  	
  11/1/2009

  	
   

  	
  33,519.94

  	
   

  
	
   

  	
   

  	
  Schedule 007

  	
   

  	
  12/16/2005

  	
   

  	
  1,719,859.14

  	
   

  	
  10.69

  	
  %

  	
  48

  	
   

  	
  12/1/2009

  	
   

  	
  43,801.37

  	
   

  
	
   

  	
   

  	
  Schedule 008

  	
   

  	
  12/16/2005

  	
   

  	
  200,704.06

  	
   

  	
  10.67

  	
  %

  	
  36

  	
   

  	
  12/1/2008

  	
   

  	
  6,481.94

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Subtotal of
  draw downs

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  5,611,978.62