Exhibit 10.1


 


THIRD AMENDMENT TO LICENSE AGREEMENT


 


This Third Amendment to License Agreement
(the “Amendment”) is effective and entered into as of February 11, 2009 by
and between GE Healthcare AS, a Norwegian corporation (“GEHC”), and Acusphere
Inc., a Delaware corporation (“ACUS”) (GEHC and ACUS collectively are the “Parties”).


 


WHEREAS, the Parties
are parties to that certain License Agreement dated as of June 1, 2006 (as
so amended, the “Agreement”) pursuant to which ACUS has licensed, on a
non-exclusive basis, certain of GEHC’s patents relating to the compositions,
methods of preparing, and methods of use of ultrasound contrast agents;


 


WHEREAS, ACUS is
seeking additional capital investment to continue development of various
pharmaceutical compounds;


 


WHEREAS, ACUS
desires to amend the payment structure of the Agreement so as to enhance its
attractiveness to investors by extending payment terms under Section 4.1
of the Agreement; and


 


NOW, THEREFORE, in
consideration of the foregoing and the covenants, acknowledgements and
representations contained in this Amendment, the Parties hereby agree as
follows:


 


ARTICLE
I.  DEFINITIONS


 


1.1                                 Definitions.
All capitalized terms used and not defined herein shall have the meanings
ascribed to them under the Agreement.


 


ARTICLE II.  AMENDMENT TO LICENSE
FEES AND PAYMENT


 


2.1                                 Amendment.  Section 4.1 of the Agreement is hereby
amended in its entirety to read as follows:


 


4.1.                              In
consideration of the licenses and release granted in Section 3, ACUS shall
make the following payments to GEHC:


 


4.1.1.       An upfront license fee of
$12,188,000 paid as follows:


 


a)              $5,000,000 on or before June 6,
2006.


 


b)             $1,500,000 on June 1, 2007.


 


c)              $916,666.66 on June 1, 2008.


 


d)             $250,000.00 on February 15, 2009.


 

















 


e)              $250,000 paid from proceeds upon the
closing of a Financing (as that term is defined in Section 4.1.1(i) below)


 


f)                $4,271,333.34 due on February 15,
2009 and payable with accrued interest on December 31, 2013, subject to
paragraph 4.1.1(g) below.  Interest
on this payment shall accrue on the principal amount of $4,271,333.34  from February 15 2009 at the rate of 6%
per annum until paid in full, subject only to paragraph 4.1.1(g) below.


 


g)             Sixty (60) days after the first commercial
sale AI-700 in the United States or Europe, prior to December 31, 2013,
any then remaining balance of the $4,271,333.34 (plus interest accrued to such
date) payable under paragraph 4.1.1(f) above shall be immediately due and
payable in full.


 


h)             All fees under this Section 4.1.1 are
non-contingent and non-returnable.  All
such amounts may be pre-paid at any time without penalty.


 


i)                 A Financing is defined as an equity or
debt investment in ACUS or credit facility made available to ACUS in an amount
of at least $5 million.


 


ARTICLE IV. MISCELLANEOUS


 


4.1           Effect on Agreement.  This Amendment amends the Agreement.  The Agreement remains in full force and
effect and remains unchanged except as expressly amended hereby.  If there is any inconsistency between the
terms of this Amendment and the terms of the Agreement, the terms of this
Amendment shall control.


 


4.2           Entire Agreement.  The Agreement, as amended by this Amendment,
sets forth all the licenses, covenants, promises, agreements, warranties,
representations, conditions, and understandings between the Parties hereto and
supersede all prior agreements and understandings between the Parties relating
to the subject matter hereof.  The
Agreement, as amended by this Amendment, including, without limitation, the
Exhibits attached thereto, is intended to define the full extent of the legally
enforceable undertakings of the Parties hereto.


 


[SIGNATURES ON FOLLOWING
PAGE]


 


2

















 


IN WITNESS WHEREOF, the undersigned Parties have duly
executed and delivered this Amendment as of the date first written above.


 


	
  GE Healthcare AS.  

  	
   

  	
  Acusphere, Inc.  

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ John R. Chiminski 

  	
   

  	
  By: 

  	
  /s/ Sherri C. Oberg 

  
	
   

  	
   

  	
   

  
	
  Name: 

  	
  John R. Chiminski 

  	
   

  	
  Name: 

  	
  Sherri C. Oberg 

  
	
   

  	
   

  	
   

  	
   

  
	
  Title: 

  	
  President and CEO 

  	
   

  	
  Title: 

  	
  President and CEO 

  
	
   

  	
   

  	
   

  
	
  Date: 

  	
  February 11, 2009

  	
   

  	
  Date: 

  	
  February 11, 2009

  
									



 


[SIGNATURE
PAGE TO THIRD AMENDMENT]


 


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