Exhibit
10.2


 


PROMISSORY NOTE


 


 


(Date)


 


FOR VALUE RECEIVED, ACUSPHERE, INC. a corporation located at the
address stated below (“MAKER”) promises, jointly and severally if more than
one, to pay to the order of GENERAL ELECTRIC CAPITAL CORPORATION or any subsequent
holder hereof (each, a “PAYEE”) at its office located at 401 MERRITT 7 SUITE
23, NORWALK, CT 06851-1177 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, to be paid in lawful money of the United States, in                                         
(                                        )
consecutive monthly installments of principal and interest as follows:


 


	
  Periodic

  Installment

  	
   

  	
  Amount

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


(each “Periodic Installment”), and a final installment which shall be
in the amount of                                         
Dollars ($                                        ),
plus any 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 same day of each succeeding month (each, a “Payment Date”).
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.


 


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”).


 


Time is of the essence hereof. If any installment or any other sum due
under this Note or any Security Agreement is not received within ten (10) days
after its due date, 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 within
ten (10) days after the same becomes due and payable; or (ii) Maker is in
default under, or fails to perform under any term or condition contained in any
Security Agreement, 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, upon Payee’s election, 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).


 


The Maker may prepay in full, but not in part, its entire indebtedness
hereunder upon 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:


 


•                  Prior
to the first annual anniversary date of this Note: Not Allowed


 


•                  Thereafter
and prior to the second annual anniversary date of this Note: five percent (5%)


 


•                  Thereafter
and prior to the third annual anniversary date of this Note: three percent (3%)


 


Plus all other sums due hereunder or under any Security Agreement.


 


It is the intention of the parties hereto to comply with the applicable
usury laws; accordingly, it is agreed that, notwithstanding any provision to
the contrary in this Note or any Security Agreement, in no event shall this
Note or any Security Agreement require the payment or permit the collection of
interest in excess of the maximum amount permitted by applicable law. If any
such excess interest is contracted for, charged or received under this Note or
any Security Agreement, or if all of the principal balance shall be prepaid, so
that under any of such circumstances the amount of interest contracted for,
charged or received under this Note or any Security Agreement on the principal
balance shall exceed the maximum amount of interest permitted by applicable
law, then in such event (a) the provisions of this paragraph shall govern and
control, (b) neither Maker nor any other person or entity now or hereafter
liable for the payment hereof shall be obligated to pay the amount of such
interest to the extent that it is in excess of the maximum amount of interest
permitted by applicable law, (c) any such excess which may have been collected
shall be either applied as a credit against the then unpaid principal balance
or refunded to Maker, at the option of the Payee, and (d) the effective rate of
interest shall be automatically reduced to the maximum lawful contract rate
allowed under applicable law as now or hereafter construed by the courts having
jurisdiction thereof. It is further agreed that without limitation of the
foregoing, all calculations of the rate of interest contracted for, charged or
received under this Note or any Security Agreement which are made for the
purpose of determining whether such rate exceeds the maximum lawful contract
rate, shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocating and spreading in equal parts during the period of the
full stated term of the indebtedness evidenced hereby, all interest at any time
contracted for, charged or received from Maker or otherwise by Payee in
connection with such indebtedness; provided, however, that if any applicable
state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a
greater interest per annum rate than is presently allowed, the Maker agrees
that, on the effective date of such amendment or preemption, as the case may
be, the lawful maximum hereunder shall be increased to the maximum interest per
annum rate allowed by the amended state law or the law of the United States of
America.


 


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 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.


 


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.


 


	
   

  	
  ACUSPHERE, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  (Witness)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
  (Print name)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
  (Address)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Federal Tax ID #:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
									



 





















 


Schedule of Loan Amounts


 


	
  Sched. No.

  	
   

  	
  Date

  	
   

  	
  Principal

  Amount

  	
   

  	
  Term

  (mos.)

  	
   

  	
  Monthly

  Payment

  	
   

  	
  Final Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  No. 1

  	
   

  	
  4/16/2004

  	
   

  	
  $

  	
  71,648.75

  	
   

  	
  48

  	
   

  	
  $

  	
  1,685.25

  	
   

  	
  $

  	
  7,058.90

  	
   

  
	
  No. 2

  	
   

  	
  4/16/2004

  	
   

  	
  156,996.65

  	
   

  	
  36

  	
   

  	
  4,697.05

  	
   

  	
  16,471.80

  	
   

  
	
  No. 3

  	
   

  	
  6/30/2004

  	
   

  	
  144,862.99

  	
   

  	
  48

  	
   

  	
  3,432.75

  	
   

  	
  14,297.47

  	
   

  
	
  No. 4

  	
   

  	
  6/30/2004

  	
   

  	
  50,644.96

  	
   

  	
  36

  	
   

  	
  1,525.95

  	
   

  	
  5,324.32

  	
   

  
	
  No. 5

  	
   

  	
  9/24/2004

  	
   

  	
  212,516.34

  	
   

  	
  48

  	
   

  	
  4,983.70

  	
   

  	
  20,922.26

  	
   

  
	
  No. 6

  	
   

  	
  9/24/2004

  	
   

  	
  95,244.37

  	
   

  	
  36

  	
   

  	
  2,850.50

  	
   

  	
  9,993.82

  	
   

  
	
  No. 7

  	
   

  	
  12/21/2004

  	
   

  	
  21,914.00

  	
   

  	
  48

  	
   

  	
  518.00

  	
   

  	
  2,161.55

  	
   

  
	
  No. 8

  	
   

  	
  12/21/2004

  	
   

  	
  1,800,353.51

  	
   

  	
  36

  	
   

  	
  54,271.85

  	
   

  	
  189,298.35

  	
   

  
	
  No. 9

  	
   

  	
  12/30/2004

  	
   

  	
  891,090.42

  	
   

  	
  48

  	
   

  	
  21,089.00

  	
   

  	
  87,920.80

  	
   

  
	
  No. 10

  	
   

  	
  2/28/2005

  	
   

  	
  2,935,005.19

  	
   

  	
  48

  	
   

  	
  69,874.98

  	
   

  	
  290,000.37

  	
   

  
	
  No. 11

  	
   

  	
  2/28/2005

  	
   

  	
  132,413.21

  	
   

  	
  36

  	
   

  	
  4,017.83

  	
   

  	
  13,948.82

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
  6,512,690.39