Exhibit 10.1


EXECUTIVE
EMPLOYMENT AGREEMENT


This Executive
Employment Agreement is entered into as of this October 1, 2007 (the “Effective
Date”) by and between Acusphere, Inc. (the “Company”), and Lawrence A. Gyenes
(the “Employee”).


WHEREAS, the Company considers it consistent with the
best interests of the Company’s stockholders to foster the continuous at-will
employment of key management personnel in order to prevent the departure or
distraction of management personnel to the detriment of the Company and its
stockholders.


WHEREAS, the Company
desires to provide members of the Company’s management, including the Employee,
with an incentive to continue their respective at-will employment and to
maximize the value of the Company for the benefit of the Company’s
stockholders.


NOW THEREFORE, in consideration of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration, the Employee and the Company agree as follows:


1.             Definitions.  As used in this Agreement, the following
terms shall have meanings set forth herein:


(a)           A termination for “Cause”
means a termination of the Employee’s employment by the Company or any
successor company for one or more of the following reasons:


(i)            the
substantial and continuing failure or refusal of the Employee, after written
notice thereof, to reasonably attempt to perform his or her job duties and
responsibilities (other than failure or refusal resulting from incapacity due
to physical disability or mental illness) which failure or refusal is committed
in bad faith and is not in the best interest of the Company;


(ii)           gross
negligence, willful misconduct or material breach of fiduciary duty to the
Company;


(iii)          the
willful commission of an act of embezzlement, misappropriation or fraud;


(iv)          deliberate
and willful disregard of the written rules or policies of the Company which
results in a material and substantial loss, damage or injury to the Company;


(v)           the
unauthorized, deliberate and willful disclosure of any material confidential,
proprietary and/or trade secret information of the Company or its customers
which disclosure is committed in bad faith and is not in the best interest of
the Company;



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(vi)          the
willful and deliberate commission of an act which induces any customer,
supplier, employee or consultant to adversely and substantially amend or
terminate their relationship with the Company which act is committed in bad
faith and is not in the best interest of the Company; or


(vii)         the conviction of, or plea of nolo
contendere by the Employee, to a crime involving a felony of moral turpitude.


(b)           “Good Reason” means:


(i)            a reduction in the Employee’s
then-current annual base salary or bonus opportunity or benefits (other than in
connection with a salary adjustment generally applicable to similarly situated
employees); or


(ii)           any failure to offer the Employee the
same level of benefits offered to similarly situated employees; or


(iii)          the failure to pay the Employee any
portion of his or her current base salary, bonus or benefits within twenty (20)
days of the date such compensation is due, based upon the payment terms
currently in effect; or


(iv)          the material breach by the Company of
this Agreement or of the Offer Letter after receipt of written notice from the
Employee and the failure of Company to cure the breach within thirty (30) days
of such notice.


(c)           “Good Reason Following A Change Of
Control” means and includes the actions by the Company set out in Section
1(b) (i)-(iv) above as well as the following additional actions, one or more of
which takes place within one year after a Change of Control (as defined below)
or within the period which begins six months prior to the first public comment
by the Company regarding such Change of Control and ends upon a Change of
Control:


(i)             a significant diminution in the
Employee’s duties, title, office, staff or responsibilities; or


(ii)            the relocation of the Employee’s
primary business location to a location that increases the Employee’s commute
by more than thirty miles compared to the commute of the Employee to the
Employee’s then-current primary business location.


(d)           “Permanent Disability” means
that (i) the Employee has been incapacitated by mental or physical injury
or illness so as to be prevented thereby from engaging in the performance of
the Employee’s duties, (ii) such incapacity has continued for a period of
six (6) consecutive months, and (iii) such incapacity will, in the opinion
of a qualified physician selected by Company and approved by Employee, be
permanent and continuous during the remainder of the Employee’s life.


(e)           “Change of Control” means (i) a sale by
the Company of all or substantially all of its business or assets or (ii) a
reorganization, merger or consolidation of the Company whereby 



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the stockholders of the
outstanding voting stock of the Company immediately prior to the transaction
hold less than a majority of votes of the outstanding stock of the entity
surviving such transaction, or (iii) the transfer, in a single transaction or
series of transactions, of a majority of the outstanding voting stock of the
Company to a single purchaser or group of related purchasers, or (iv)
individuals who, as of the date of this Agreement, constitute the Board of
Directors (the “Board”) of the Company (the “Incumbent Board”) cease for any
reason to constitute at least a majority of the Board, provided that any
individual becoming a director subsequent to the date of this Agreement whose
election, or nomination for election by the Company’s shareholders, was approved
by a vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for the purpose, any such individual whose
initial assumption of office is in connection with either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a person
other than the Board; or (v) the Board determines that a Change of Control has
occurred.


(f)            “Monthly Base Salary” means
the amount calculated by multiplying the employee’s then semi-monthly current
gross salary by two (2), or if paid more or less frequently than two times per
month, the amount of such current gross salary multiplied by the number of
payroll periods in a year divided by twelve (12). For purposes of this
calculation, the Employee’s current gross salary shall be the highest amount of
such gross salary paid to the Employee during the twelve month period prior to
termination of employment.


(g)           “Target Bonus”: means the
greater of the potential bonus amount defined in the Company’s management
incentive compensation plan at the time of a Change of Control Termination (as
defined in Section 2 below) or the potential bonus amount or other financial
incentive amount defined in any such management incentive compensation plan
applicable to the Employee during the twelve month period preceding a Change of
Control. For employees who earn sales commissions, Target Bonus shall be deemed
to equal the average annualized (for any fiscal year consisting of less than
twelve months or with respect to which the Employee has been employed by the
Company for less than twelve full months) commission paid or payable to the
employee by the Company in respect to the lesser of the three fiscal years
immediately preceding the Change of Control, or the number of fiscal years in
which the Company has instituted a commission plan or the number of full fiscal
years for which the Employee has been employed by the Company immediately
preceding the fiscal year in which the Change of Control Termination occurs.


2.             Benefits Upon Termination after
Change Of Control.  If at any time
within twelve (12) months after a Change of Control of the Company has occurred
or within the period which begins six (6) months prior to the first public
comment by the Company regarding the Change of Control and ends upon a Change
of Control, the Employee’s employment is terminated either (i) by the
Company or any successor company for any reason other than for Cause or the
Employee’s Permanent Disability or death or (ii) by the Employee for Good
Reason Following A Change Of Control, (such events of termination referred to
herein as a “Change of Control Termination”), and subject to the Employee
executing a release in substantially the form attached 



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hereto as Exhibit 1 and the expiration of the
applicable revocation period, the Company shall pay or provide the Employee
with the following:


(i)            all base salary and accrued but
unused vacation up to and through the date of Change of Control Termination
shall be paid in accordance with the Company’s normal payroll payment practices
as currently in effect;


(ii)           payments by the Company of an
aggregate amount equal to the product of the Employee’s then-current
Monthly Base Salary multiplied by six (6), which amount shall be paid in a lump
sum within 30 days immediately following the date of the Employee’s Change of
Control Termination; provided that if in the opinion of the Company, based on
advice of counsel or its tax advisors, such payments would be subject to the
payment of excise tax under Section 409 A of the Internal Revenue Code of 1986,
as amended (the “Code”), such payment shall be made six months and one day
after the date of the Employee’s Change of Control Termination, together with
interest on the amount so deferred calculated at the prime rate of interest as
reported in the Wall Street Journal at the time of such payment (the “Prime
Rate”);


(iii)          payments by the Company of an
aggregate amount equal to the product of the Employee’s then-current
Monthly Base Salary multiplied by the greater of (i) the number of full years
(twelve month periods) during which the Employee had been employed by the
Company prior to the Change of Control Termination or (ii) six, which amount
shall be paid in a lump sum within 30 days following the date of the Employee’s
Change of Control Termination;


(iv)           payment by the Company of an amount
equal to one times the Employee’s Target Bonus for the year in which the Change
of Control occurs, pro rated to cover the portion of the year that elapsed from
the start of the calendar year through the date of the Change of Control
Termination plus such pro rated amount to cover six (6) months plus the greater
of (i) one month for each full year (twelve month period) during which the
Employee has been employed by the Company prior to the Change of Control
Termination or (ii) six months, which amount shall be paid in a lump sum within
30 days immediately following the date of the Employee’s Change of Control
Termination together with payment of all earned but unpaid bonuses from prior
years, if any;


(v)           payment by the Company of the portion
of the Employee’s monthly health and dental insurance premium payments
customarily paid by the Company for its employees for a period of eighteen (18)
months from the date of the Employee’s termination, provided
the Employee elects to continue such health and dental insurance in accordance
with the applicable provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”), has not accepted employment elsewhere
from which he or she is eligible to receive similar employer-sponsored insurance
and provided that if continuation is not available under the terms and
conditions of the Company’s plans, the Company will substitute similar
coverage;



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(vi)           continuation of coverage under the
Company’s life and disability insurance plans, if any, to the extent permitted
by applicable law, for a period of eighteen (18) months from the date of the
Employee’s termination; provided, however,
that in the event such continuation of coverage is not so permitted by
applicable law, the Employee acknowledges and agrees that he or she shall not
be entitled to any payments in lieu thereof and provided that if continuation
is not available under the terms and conditions of the Company’s plans, the
Company will substitute similar coverage;


(vii)          the amount of any Company
contribution, premium payment or other consideration paid by the Company to, or
for, any other welfare plan, retirement plan or profit sharing plan supported
by the Company on behalf of its employees
in an amount equal to the amount that the Employee would have been eligible to
receive or which the Company would have paid on behalf of the Employee had the
Employee remained in the employ of the Company for twelve months after the
Change of Control;


(viii)         outplacement services from a service
provider of Employee’s choice to the Employee at the Company’s expense, up to a
maximum expense of $15,000; and


(ix)           the amount of federal, state and
local income tax to which the Employee is subject as a result of the Company
paying for any insurance premium, outplacement service or retirement
benefit hereunder in a form which is judged to be taxable as income to the
Employee but would likely not have been subject to taxation had the Employee
been in the continued employ of the Company such that the Employee remains “whole”
on such payments (including the payments per this paragraph).


In addition to the
foregoing, upon any Change of Control Termination, unless at that time Employee
elects to forego all or a part of the following described amendments to his/her
stock option agreements, all unvested options for Company common stock or
unvested restricted stock held by the Employee pursuant to any stock plan or
arrangement with the Company shall become immediately vested, and any options
held by the Employee under any such plan or arrangement shall be deemed amended
so that they are exercisable at any time after the Change of Control
Termination and prior to termination of the option agreement in accordance with
its terms.


The Employee shall
not be required to mitigate the amount of any payment to be paid or provided in
this Section 2 by seeking other employment or otherwise, nor shall the amount
of any payment or benefit provided by this Section 2 be reduced by any
compensation earned by the Employee as a result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by the Employee to the Company, or otherwise.


Notwithstanding
the foregoing, if in the
opinion of the Company, based on advice of counsel or its tax advisors, any
payments owed to the Employee under this Section 2 would be subject to the
payment of excise tax under Section 409 A of the Code if paid at the times set
forth herein, such payments shall be made six months and one day after the date
of the Employee’s termination hereunder, provided that any payments so deferred
shall earn interest calculated at the Prime Rate.



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3.             Benefits Upon Not For Cause
Termination or For Termination With Good Reason.  If at any time the Employee’s employment is
terminated by the Company or any successor company for any reason other than
for Cause or the Employee’s Permanent Disability or death or by Employee for
Good Reason, and such termination does not constitute a Change of Control
Termination under Section 2 above or a Management Buy-Out (such events of
termination referred to herein as a “Not For Cause Termination”), and subject
to the Employee executing a release in substantially the form attached hereto
as Exhibit 1 and the expiration of the applicable revocation period, the
Company shall pay or provide the Employee with the following:


(i)            all base salary and accrued but
unused vacation up to and through the date of Not For Cause Termination shall
be paid in accordance with the Company’s normal payroll payment practices as
currently in effect;


(ii)           payments by the Company of an
aggregate amount equal to the product of the Employee’s then-current
Monthly Base Salary, multiplied by six, which amount shall be paid in equal
monthly installments on a monthly basis for the six months immediately
following the date of the Employee’s Not For Cause Termination; provided that
in any event such amount shall be fully paid no later than two and one-half
months following the calendar year in which the Employee’s Not For Cause
Termination occurs;


(iii)          payments by the Company of an amount
equal to the product of the Employee’s then-current Monthly Base Salary,
multiplied by the number of full years (twelve month periods) during which the
Employee had been employed by the Company prior to the Not For Cause
Termination, which amount shall be paid on a monthly basis for the six months
immediately following the date of the Employee’s Not For Cause Termination;
provided that in any event such amount shall be fully paid no later than thirty
(30) days following Employee’s Not For Cause Termination;


(iv)          payment by the Company earned but
unpaid bonuses, including commissions, up to the date of Not For Cause
Termination;


(v)            payment by the Company of the
portion of the Employee’s monthly health and dental insurance premium payments
customarily paid by the Company for its employees for a period of eighteen (18)
months from the date of the Employee’s termination, provided
the Employee elects to continue such health and dental insurance in accordance
with the applicable provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”), has not accepted employment elsewhere
from which he or she is eligible to receive similar employer-sponsored
insurance, and otherwise remains eligible for such coverage;


(vi)           continuation of coverage under the
Company’s life and disability insurance plans, if any, to the extent permitted
by applicable law, for a period of eighteen (18) months from the date of the
Employee’s termination; provided, however,
that in the event such continuation of coverage is not so permitted by
applicable law, the Employee acknowledges and agrees that he or she shall not
be entitled to any payments in lieu 



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thereof and provided that if such continuation is not
available under to terms and conditions of the Company’s plans that the Company
will substitute similar coverage from other plan providers for this
continuation coverage period;


(vii)          the amount of any Company
contribution, premium payment or other consideration paid by the Company to, or
for, any other welfare plan, retirement plan or profit sharing plan supported
by the Company on behalf of its employees in an amount equal to the amount that
the Employee would have been eligible to receive or which that Company would
have paid on behalf of the Employee had the Employee remained in the employ of
the Company for twelve months after the Change of Control;


(viii)         outplacement services from a service provider of Employee’s choice
to the Employee at the Company’s expense, up to a maximum expense of $15,000;
and


(ix)           the amount of federal, state and
local income tax to which the Employee is subject as a result of the Company
paying for any insurance premium, outplacement service or retirement benefit
hereunder in a form which is judged to be taxable as current income to the
Employee but would likely not have been subject to current taxation had the
Employee been in the continued employ of the Company such that the Employee
remains “whole” on such payments (including the payments per this paragraph).


The Employee shall
not be required to mitigate the amount of any payment to be paid or provided in
this Section 3 by seeking other employment or otherwise, nor shall the amount
of any payment or benefit provided by this Section 3 be reduced by any
compensation earned by the Employee as a result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by the Employee to the Company, or otherwise. Notwithstanding the
foregoing, if in the
opinion of the Company, based on advice of counsel or its tax advisors, any
payments owed to the Employee under this Section 3 would be subject to the
payment of excise tax under Section 409 A of the Code if paid at the times set
forth herein, such payments shall be made six months and one day after the date
of the Employee’s termination hereunder, provided that any payments so deferred
shall earn interest calculated at the Prime Rate.


4.             Benefits Upon Termination For
Death or Disability.  If the Employee’s
employment is terminated as a result of the Employee’s death or Permanent
Disability:


(i)            the Company shall pay the Employee
or the Employee’s estate all base salary and accrued but unused vacation up to
and through the date of death or disability shall be paid in accordance with
the Company’s normal payroll payment practices as currently in effect;


(ii)           the Company shall pay the Employee or
the Employee’s estate the amount of any commissions earned through the date of
Employee’s death or Permanent Disability and the pro rata portion of any other
bonus that would have been payable to the Employee for the year in which such
termination occurred, no later than two and one-half months following the end
of the calendar year in which the Employee’s termination of employment occurs;
and



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(iii)          unless at that time the Employee or the Employee’s estate elects to
forego all or a part of the following described amendments to his/her stock
option agreements, all unvested options for Company common stock or unvested
restricted stock held by the Employee pursuant to any stock plan or
arrangement with the Company shall become immediately vested, and, subject to
the terms of the Company’s stock plan, any options held by the Employee under
any such plan or arrangement shall be deemed amended so that they are
exercisable prior to termination of the option agreements in accordance with
their terms.


5.             At-Will Employment.  The Employee acknowledges and agrees that
this Agreement does not in any way modify or limit the at-will nature of the
Employee’s employment with the Company. Nothing in this Agreement should be
taken as a limit on payments that may be made to the Employee, as a guarantee
of continued employment or a specific term of employment, and, subject to the
terms contained herein, either the Employee or the Company may at all times
terminate the Employee’s employment with the Company at any time, for any or no
reason, and with or without prior notice.


6.             Withholding; Taxes.  All payments made by the Company under this
Agreement shall be subject to and reduced by any federal, state and/or local
taxes or other amounts required to be withheld by the Company under any
applicable law.


7.             Tax Gross-Up.  If any payment or benefit received or to be
received by the Employee pursuant to this Agreement or any other plan,
arrangement or agreement including, but not limited to, the acceleration of vesting
of options (the “Total Payments”) would constitute (in whole or in part) an “excess
parachute payment” within the meaning of Section 280G(b) of the Internal
Revenue Code of 1986, as amended (the “Code”), or any payment or benefit made
under this Agreement which is deemed to be subject to excise tax imposed by
Section 409A of the Code or pursuant to similar provisions of state or local
tax codes (which tax cannot be avoided by deferral of such payments for six
months and one day as provided in Sections 2 and 3 of this Agreement), then the
amount of the payments hereunder shall be grossed-up to the Employee in an
amount such that, after payment by the Employee of all payments and taxes
(including any interest and penalties imposed with respect to such taxes),
including, without limitation, any income and excise taxes (and any interest
and payments imposed with respect thereto) and payment by the Employee of all
taxes imposed upon the gross-up payment, the Employee retains the amount of the
gross-up payment equal to the incremental amount to be paid by the Employee in
tax resulting, if any, from the excess parachute payment and taxes. All
determinations required to be made under this Section 8, including whether and
when a gross-up payment is required and the amount of such gross-up payment and
the assumptions to be utilized in arriving at such determination, shall be
made, at the Company’s expense, by Deloitte & Touche (or its
successors)(the “Accounting Firm”).


8.             Assignment and Expiration of
Agreement.


(a)           The Employee acknowledges and agrees
that this Agreement is personal to the Employee and the Employee may not assign
any rights or delegate any obligations or duties hereunder; provided that this
Agreement shall inure to the benefit of and be enforceable by the 



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Employee and his or her personal or legal
representatives, executors, administrators, heirs, distributees, devisees and
legatees.


(b)           This Agreement, and the rights and
obligations of the Company hereunder, shall inure to the benefit of, and shall
be binding upon, any successor or assign of the Company or all or substantially
all of the business and/or assets of the Company (whether direct or indirect,
by merger, purchase, consolidation, operation of law or otherwise) and may be
assigned by the Company to any entity that shall succeed to the business and
assets of the Company. As used in this Agreement, “Company” shall mean the
Company as defined herein and any successor to the Company or its business
and/or assets as aforesaid.


9.             Governing Law.  The Employee and the Company agree that this
Agreement shall be interpreted in accordance with and governed by the laws of
the Commonwealth of Massachusetts, without regard to any conflicts or choice of
law rule or principle that might otherwise refer construction or interpretation
to the substantive law of another jurisdiction.


10.           Entire Agreement.  Except for the provisions of any
indemnification agreement between the Company and Employee and the terms of any
deferred compensation agreement between the Company and Employee, this
Agreement shall supersede all prior, concurrent and/or contemporaneous
arrangements, whether written or oral, regarding the subject matter of this
Agreement; provided, however, that except as
specifically set forth herein this Agreement is not intended to and shall not
affect, limit or terminate the Employee’s rights under the Company’s stock
incentive plans or arrangements and any option grants or other awards made
pursuant thereto, entered into by and between the Employee and the Company.


11.           Acknowledgements.  The Employee acknowledges that he or she is
not relying and has not relied on any promise, representation or statement made
by or on behalf of the Company which is not set forth in this Agreement .


12.           Severability.  If any one or more of the provisions (or any
part thereof) of this Agreement shall be declared invalid, illegal or
unenforceable to any extent by a court of competent jurisdiction, then the
application of such provision in such circumstances shall be modified to permit
its enforcement to the maximum extent permitted by law, and both the
application of such portion or provision in circumstances other than those as
to which it is so declared invalid, illegal or unenforceable and the remainder
of this Agreement shall not be affected thereby, and each of the remaining
provisions (or any part thereof) shall be valid and enforceable to the fullest
extent permitted by law.


13.           Waiver; Modification; Amendment.  No waiver of any provision of this Agreement
shall be effective unless made in writing and signed by the party against whom
enforcement of the waiver is sought. Any written waiver shall operate only as
to specific term or condition in the specific instance waived. This Agreement
may be modified or amended only by a written instrument signed by the Employee
and the Company.



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14.           Counterparts.  This Agreement may be executed in
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.


15.           Notices.  All notices hereunder shall be in writing and
shall be deemed given when sent by certified or registered mail, postage
prepaid, return receipt requested, if to the Employee, to the address shown on
the records of the Company, and if to the Company, to the Company’s principal
executive offices, attention of the President and/or Chief Executive Officer.


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


COMPANY:


ACUSPHERE, INC.


	
  By:

  	
  /s/ Sherri C.
  Oberg

  	
   

  
	
  Name: Sherri C.
  Oberg

  
	
  Title: President
  & Chief Executive Officer

  
	
   

  
	
  EMPLOYEE:

  
	
   

  
	
  /s/ Lawrence A.
  Gyenes

  	
   

  
	
  Name: Lawrence
  A. Gyenes

  



 



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Exhibit 1


[Insert
Name and Address of Employee]


Re: Executive Employment Agreement and Release


Dear
        :


Reference is made to the Executive Employment
Agreement, dated                   
, (the “Employment Agreement”) between you and Acusphere, Inc. (the “Company”).
The Employment Agreement provides for certain benefits to be paid to you by the
Company under the circumstances set forth therein. As a condition to obtaining
such benefits, and in consideration therefore, you have agreed to execute this
letter agreement (this “Agreement”). With these understandings and in exchange
for the promises of you and the Company as set forth below, you and the Company
agree as follows.


1.             Employment Status and Final
Payments:


(a)           Your termination
from employment with the Company will be effective as of       ,
        (the “Termination Date”). As of the
Termination Date, your salary will cease, and any entitlement you have or might
have under a Company-provided benefit plan, program, contract or practice will
terminate, except as required by federal or state law, or as otherwise
described in the Employment Agreement.


(b)           You hereby
acknowledge that as of the Termination Date, you have been paid, or provision
has been made to promptly pay you within the normal payroll cycle of the
Company, all wages earned and such other amounts as are provided for in the
Employment Agreement including payment for all vacation time accrued but unused
as of the Termination Date.


(c)           The Termination Date
shall be the date of the “qualifying event” under the Consolidated Omnibus
Budget Reconciliation Act of 1985 (“COBRA”) and the Company will present you
with information on COBRA under separate cover.


2.             Consideration:  The
Company will make payments to you and provide you with such other benefits as
are set forth in the Employment Agreement [IF APPLICABLE: and in the deferred
compensation agreement set forth in writing between you and the Company dated          


	
   

  	
   

  
	
  (“Deferred Compensation
  Agreement”)].

  




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3.             Release:  In
exchange for the amounts described in the Employment Agreement and other good
and valuable consideration, the sufficiency of which is hereby acknowledged,
you and your representatives, agents, estate, heirs, successors and assigns,
absolutely and unconditionally hereby release, remise, discharge, indemnify and
hold harmless the Company Releasees (defined to include the Company and/or any
of its parents, subsidiaries or affiliates, predecessors, successors or
assigns, and its and their respective current and/or former partners,
directors, shareholders/stockholders, officers, employees, attorneys and/or
agents, all both individually and in their official capacities), from any and
all actions or causes of action, suits, claims, complaints, contracts, liabilities,
agreements, promises, contracts, torts, debts, damages, controversies,
judgments, rights and demands, whether existing or contingent, known or
unknown, suspected or unsuspected, which arise out of your employment with,
change in employment status with, and/or separation of employment from, the
Company. This release is intended by you to be all encompassing and to act as a
full and total release of any claims, whether specifically enumerated herein or
not, that you may have or have had against the Company Releasees arising from
conduct occurring up to and through the date of this Agreement, including, but
not limited to, any claims arising from any federal, state or local law,
regulation or constitution dealing with either employment, employment benefits
or employment discrimination such as those laws or regulations concerning
discrimination on the basis of race, color, creed, religion, age, sex, sex
harassment, sexual orientation, national origin, ancestry, genetic carrier
status, handicap or disability, veteran status, any military service or
application for military service, or any other category protected under federal
or state law or any contract, whether oral or written, express or implied; any
tort; any claim for equity or other benefits; or any other statutory and/or
common law claim.


4.             Accord and
Satisfaction:  The amounts set forth in the Employment
Agreement and in any deferred compensation agreement that is set forth in
writing between you and the Company shall be complete and unconditional
payment, settlement, accord and/or satisfaction with respect to all obligations
and liabilities of the Company Releasees to you, including, without limitation,
all claims for back wages, salary, vacation pay, draws, incentive pay, bonuses,
stock and stock options, commissions, severance pay, reimbursement of expenses,
any and all other forms of compensation or benefits, attorney’s fees, or other
costs or sums.


5.                                      [NOTE:  INCLUDE IF EMPLOYEE IS 40 OR OLDER]


          Waiver of Rights and
Claims Under the Age Discrimination in Employment Act of 1967:


Since you are 40 years of age or older, you are being informed that you
have or may have specific rights and/or claims under the Age Discrimination in
Employment Act of 1967 (ADEA) and you agree that:


(a)           in
consideration for the amounts described in Section 2 of this Agreement, which
you are not otherwise entitled to receive, you specifically and voluntarily
waive such rights and/or claims under the ADEA you might have against the
Company Releases to the extent such rights and/or claims arose prior to the
date this Agreement was executed;


(b)           you
understand that rights or claims under the ADEA which may arise after the date
this Agreement is executed are not waived by you;



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(c)           you
are advised that you have at least 21 days within which to consider the terms
of this Agreement and to consult with or seek advice from an attorney of your
choice or any other person of your choosing prior to executing this Agreement;


(d)           you have carefully read and fully
understand all of the provisions of this Agreement, and you knowingly and
voluntarily agree to all of the terms set forth in this Agreement; and


(e)           in entering into this Agreement you
are not relying on any representation, promise or inducement made by the
Company or its attorneys with the exception of those promises described in this
document.


6.             Period for
Review and Consideration of Agreement:


(a)               You
acknowledge that you were informed and understand that you have twenty-one (21)
days to review this Agreement and consider its terms before signing it.


(b) The 21-day
review period will not be affected or extended by any revisions, whether
material or immaterial, that might be made to this Agreement.


7.             Company Files, Documents and
Other Property:  You agree that on or before the Termination
Date you will return to the Company all Company property and materials,
including but not limited to, (if applicable) personal computers, laptops, fax
machines, scanners, copiers, cellular phones, Company credit cards and
telephone charge cards, manuals, building keys and passes, courtesy parking
passes, diskettes, intangible information stored on diskettes, software
programs and data compiled with the use of those programs, software passwords
or codes, tangible copies of trade secrets and confidential information, sales
forecasts, names and addresses of Company customers and potential customers,
customer lists, customer contacts, sales information, sales forecasts,
memoranda, sales brochures, business or marketing plans, reports, projections,
and any and all other information or property previously or currently held or
used by you that is or was related to your employment with the Company (“Company
Property”). You agree that in the event that you discover any other Company
Property in your possession after the Termination Date of this Agreement you
will immediately return such materials to the Company.


8.             Future Conduct:


(a)           Nondisparagement:  You agree not to make disparaging, critical
or otherwise detrimental comments to any person or entity concerning the
Company, its officers, directors or employees; the products, services or
programs provided or to be provided by the Company; the business affairs,
operation, management or the financial condition of the Company; or the
circumstances surrounding your employment and/or separation of employment from
the Company. The Company agrees not to make disparaging, critical or otherwise
detrimental comments to any person or entity concerning your performance at the
Company or the 



 13
 









 


circumstances surrounding your employment and/or
separation of employment from the Company.


(b)           Confidentiality
of this Agreement:  You agree that
you shall not disclose, divulge or publish, directly or indirectly, any
information regarding the substance, terms or existence of this Agreement
and/or any discussion or negotiations relating to this Agreement, to any person
or organization other than your immediate family and accountants or attorneys
when such disclosure is necessary for the accountants or attorneys to render
professional services. Prior to any such disclosure that you may make, you
shall secure from your attorney or accountant their agreement to maintain the
confidentiality of such matters.


(c)           Disclosures:  Nothing
herein shall prohibit or bar you from providing truthful testimony in any legal
proceeding or in communicating with any governmental agency or representative
or from making any truthful disclosure required, authorized or permitted under
law; provided, however, that in providing such testimony or making such
disclosures or communications, you will use your best efforts to ensure that
this Section is complied with to the maximum extent possible. Notwithstanding
the foregoing, nothing in this Agreement shall bar or prohibit you from
contacting, seeking assistance from or participating in any proceeding before
any federal or state administrative agency to the extent permitted by
applicable federal, state and/or local law. However, you nevertheless will be
prohibited to the fullest extent authorized by law from obtaining monetary
damages in any agency proceeding in which you do so participate.


9.             Representations and Governing
Law:


(a)       This Agreement sets
forth the complete and sole agreement between the parties and supersedes any
and all other agreements or understandings, whether oral or written, except the
Nondisclosure and Developments Agreement between you and the Company, the
Employment Agreement, the Indemnification Agreement between you and the Company
[IF APPLICABLE: the terms of the Deferred Compensation Agreement] and the
Incentive Stock Option Agreement each of which shall remain in full force and
effect in accordance with their respective terms. This Agreement may not be
changed, amended, modified, altered or rescinded except upon the express written
consent of both the President of the Company  and
you.


(b)       If
any provision of this Agreement, or part thereof, is held invalid, void or
voidable as against public policy or otherwise, the invalidity shall not affect
other provisions, or parts thereof, which may be given effect without the
invalid provision or part. To this extent, the provisions and parts thereof of
this Agreement are declared to be severable. Any waiver of any provision of
this Agreement shall not constitute a waiver of any other provision of this
Agreement unless expressly so indicated otherwise. The language of all parts of
this Agreement shall in all cases be construed according to its fair meaning
and not strictly for or against either of the parties.


(c)       This Agreement and any
claims arising out of this Agreement (or any other claims arising out of the
relationship between the parties) shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts and shall in all
respects be interpreted, enforced and governed under the internal and domestic
laws of Massachusetts, 



 14
 









 


without giving effect to the principles of conflicts
of laws of such state. Any claims or legal actions by one party against the
other shall be commenced and maintained in state or federal court located in
Massachusetts, and you hereby submit to the jurisdiction and venue of any such
court.


(d)       You may not assign any
of your rights or delegate any of your duties under this Agreement. The rights
and obligations of the Company shall inure to the benefit of the Company’s
successors and assigns.


10.          Effective Date:  After
signing this letter, you may revoke this Agreement for a period of seven (7)
days following said execution. The Agreement shall not become effective or
enforceable and no payments will be made until this revocation period has
expired (“Effective Date”).


If this letter correctly states the agreement
and understanding we have reached, please indicate your acceptance by
countersigning the enclosed copy and returning it to me.


	
  

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  Acusphere,
  Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Sherri C. Oberg

  



 


I
REPRESENT THAT I HAVE READ THE FOREGOING AGREEMENT, THAT I FULLY UNDERSTAND THE
TERMS AND CONDITIONS OF SUCH AGREEMENT AND THAT I AM KNOWINGLY AND VOLUNTARILY
EXECUTING THE SAME. IN ENTERING INTO THIS AGREEMENT, I DO NOT RELY ON ANY
REPRESENTATION, PROMISE OR INDUCEMENT MADE BY THE COMPANY OR ITS
REPRESENTATIVES WITH THE EXCEPTION OF THE CONSIDERATION DESCRIBED IN THIS
DOCUMENT.


	
  Accepted and Agreed to:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Lawrence A. Gyenes

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
			




 15
 









 


IF YOU DO NOT WISH TO USE
THE 21-DAY PERIOD,


PLEASE CAREFULLY REVIEW
AND SIGN THIS DOCUMENT


I,                        ,
acknowledge that I was informed and understand that I have 21 days within
which to consider the attached Severance Agreement and Release, have been
advised of my right to consult with an attorney regarding such Agreement and
have considered carefully every provision of the Agreement, and that after
having engaged in those actions, I prefer to and have requested that I enter
into the Agreement prior to the expiration of the 21 day period.


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Witness:

  



 



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