Exhibit
10.2


[CONFIDENTIAL
TREATMENT REQUESTED] /*/ INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED.


PATENT
LICENSE AGREEMENT


This Agreement is made by and between


BRACCO INTERNATIONAL BV, a corporation duly organized and existing
under the laws of The Netherlands, having its registered office at
Strawinskylaan 3051, 1077 ZX Amsterdam, (hereinafter referred to as “BRACCO”)


and


ACUSPHERE INC., a corporation organized and existing
under the laws of the State of Delaware, U.S.A (hereinafter referred to as “ACUS”)


ACUS and BRACCO may each be alternatively referred to
herein individually as a “Party” or collectively as the “Parties”)


WHEREAS, BRACCO owns or controls certain patent rights
pertinent to ultrasound contrast agents;


WHEREAS, ACUS wishes to obtain licenses under the
patent rights specified hereinafter and BRACCO is willing to grant such
licenses on the terms and conditions as set forth hereinafter.


NOW, THEREFORE, in consideration of the mutual
covenants and premises contained herein, the Parties agree as follows:


Article 1

Definitions


As used in the Agreement, terms referred to in the
singular shall include the plural (and vice
versa) unless the express terms or context herein clearly require
otherwise, and the following terms shall have the following meanings:


1.01                           “Agreement”
shall mean this present document and all Exhibits attached hereto and signed or
initialled by the Parties hereto, all of which Exhibits form an integral part
hereof.


1.02                          “ACUS Net Sales” shall mean the amounts invoiced on the sales of
Licensed Product carried out in the Territory 
by ACUS, its Subsidiaries, and its Sub-Licensees under this 









 



 


Agreement
other than Nycomed Danmark APS (“Nycomed”) 
to independent, unrelated third parties in bona fide arms’ length
transactions, less (i) trade, cash and quantity discount; (ii) refunds, credits
or other write-offs, (iii) sales taxes (excluding taxes paid on net income),
and government mandated rebates and (iv), two percent (2%) flat deduction to
cover shipping and freight charges and any other expenses and deduction not
otherwise accounted for. Except pursuant to paragraph (iv) above, any and all
deductions used in the calculation of ACUS Net Sales are allowable only to the
extent that they have actually  been
included in the amounts invoiced or otherwise charged or granted on the sales
of Licensed Products.


With respect to the sales of Licensed Product carried
out in by Nycomed in the countries covered by the license agreement at present
in force between ACUS and Nycomed and that are listed in Exhibit 2.01, ACUS Net
Sales shall be the net sales reported by Nycomed to ACUS according to the terms
set forth in the license agreement between ACUS and Nycomed, provided that any
and all deductions used in the calculation of such net sales are allowable only
to the extent that they have actually been included in the amounts invoiced or
otherwise charged or granted on the sales of Licensed Products.


1.03         “Effective Date” shall mean the date of
the last signature of the Agreement


1.04         “Field” shall mean ultrasound
diagnostic imaging


1.05                           “Licensed
Patents” shall mean the patents and patent applications listed in Exhibit 1.05


1.06                           “Licensed
Product” shall mean AI-700, an ultrasound contrast agent in the form of [CONFIDENTIAL
TREATMENT REQUESTED] /*/


1.07                          “Sub-Licensees”
shall mean Nycomed,  any Permitted
Sublicensee to which a sub-license is granted under this Agreement and any
other third party, selected by ACUS and approved by BRACCO pursuant to Section
2.01, granted with a sub-license under this Agreement.


1.08                          “Subsidiaries”
shall mean any corporation, company or other entity of which more than fifty
per cent (50%) of the issued and outstanding capital, or of which more than
fifty per cent (50%) of the power to vote for the election of the directors, or
more than fifty per cent (50%) of which, in the case of a non-stock-issuing
entity, is owned or controlled, directly or indirectly, by BRACCO or by ACUS,
but only for as long as such ownership or control exists.


1.09                          “Permitted
Assignee” shall mean any corporation, company, person or entity, other than the
companies listed on Exhibit 1.08 hereto and their respective Subsidiaries, less
than US $ 5,000,000.00 (five million) of whose revenues in the most recent
fiscal year were provided by sales of diagnostic imaging
agents (excluding revenues derived from the contract manufacturing of
diagnostic imaging agents on behalf of third parties where the contract
manufacturer does not actively market or sell the diagnostic imaging agent to
end-users), including those corporations, companies or entities to whom the assignment has been approved by BRACCO according to
the procedure set forth in Section 6.02 (b) hereunder.



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1.10                          “Permitted
Sublicensee” shall mean any corporation, company, person or entity, other
than  the companies listed on Exhibit
1.08 hereto and their respective Subsidiaries, less than US $ 5,000,000.00
(five million) of whose revenues in the most recent fiscal year were provided
by sales of diagnostic imaging agents (excluding revenues derived from the
contract manufacturing of diagnostic imaging agents on behalf of third parties
where the contract manufacturer does not actively market or sell the diagnostic
imaging agent to end-users).


1.11                          “Valid
Claim” means a claim of any pending patent application and/or any issued and
unexpired Licensed Patent which has not lapsed, become abandoned or been held
revoked, invalid, or unenforceable by a decision of a court or administrative
or government authority or agency of competent jurisdiction from which no
appeal can be or has been taken within the time allowed for such appeal, and
which has not been admitted to be invalid or unenforceable through reissue,
disclaimer or otherwise.


1.12                          “Territory”
shall mean any country in the world where a Valid Claim exists. Exhibit 1.09
lists such countries at the time of the execution of the Agreement.


Article 2

Licenses


2.01                           Subject
to the terms and conditions provided for in the Agreement, BRACCO hereby grants
to ACUS and its Subsidiaries a non-exclusive, indivisible, non-transferable(
except as set forth herein), license in the Territory limited to the Field,
with the limited right to grant sublicenses as set forth here below in this
Section 2.01, under the Licensed Patents to make, have made, develop, have
developed, use, sell, offer to sell, import and distribute  the Licensed Products.


ACUS shall have the right to grant a sublicense under
the Licensed Patents to Nycomed Danmark APS 
for the countries covered by the license agreement at present in force
between ACUS and Nycomed that are listed in Exhibit 2.01 and that are part of
the Territory. Acusphere shall have the right to grant a sub-license under the
Licensed Patents to a Permitted Sublicensee without Bracco’s prior approval. In
such a case ACUS shall timely communicate to BRACCO the name of such Permitted
Sublicenses and the pertaining countries covered by the Permitted Sublicensee.
If ACUS wishes to  sublicense the  Licensed Patents in any country of the
Territory through a third party that is not a Permitted Sublicensee, ACUS shall request the
prior written approval of BRACCO to sublicense the Licensed Patents to such
third party, which approval shall not be unreasonably withheld or delayed.  Requests for consent shall be made by ACUS,
and BRACCO shall respond, as set forth in Section 6.02, below. Sub-licences
hereunder shall not be inconsistent with the terms of this Agreement, shall not
include the right to grant further sub-licences under the Licensed Patents and
shall automatically and immediately terminate upon termination of the Agreement.


2.02                        Upon
payment by ACUS under Section 3.02 below of an aggregate amount of royalties (including the 50% of the amounts paid pursuant
to Section 3.01 (a) (iii) and (iv) credited 



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as advance royalties under
Section 3.01(b)) equal to Euro 10,000,000.00 (ten millions), the licenses
granted under this Agreement shall be deemed fully paid-up as far as royalty
payment is concerned and, subject to ACUS’s fulfilment with the terms of this
Agreement and provisions set forth in Section 6.02, shall thereafter be  irrevocable.


Article
3


Consideration


3.01                           Milestones.
(a) In consideration of the rights and license granted hereunder with respect
to the Licensed Patents, ACUS shall pay to BRACCO:


(i)                                     non-refundable
sum of Euro 500,000.00 (five hundred thousand) in immediately available funds
within five business days after the signature of the Agreement;


(ii)                                  non-refundable
sum of [CONFIDENTIAL TREATMENT REQUESTED] /*/ in immediately available funds
within five business days after the acceptance by FDA (US Food and Drug Administration) of NDA (New Drug Approval) filing package relating
to the Licensed Product;


(iii)                               non-refundable
sum of [CONFIDENTIAL TREATMENT REQUESTED] /*/ in immediately available funds
within five business days after the obtainment in the first country in Europe
of the marketing approval relating to the Licensed Product;


(iv)                              non
refundable sum of [CONFIDENTIAL TREATMENT REQUESTED] /*/ in immediately
available funds within five business days after the obtainment in USA of the
marketing approval relating to the Licensed Product.


The above amounts
shall be net of any imposed tax, duty etc.


(b) The parties acknowledge and agree that the 50%
(fifty per cent) of the sum that ACUS will pay to BRACCO pursuant to paragraphs
3.01 (a) (iii) and (iv) above shall be considered as advance royalty payment to
be off-set against future royalty payments due by ACUS to BRACCO pursuant to
Section 3.02 (a) below, according to the mechanism set forth in Section 3.02
(b).


3.02                          Royalties. (a) In further
consideration of the license granted in Article 2 hereof, during the term of
the Agreement ACUS shall pay BRACCO a royalty in an amount equal to:


(i)                                                       until such time as the total cumulative amount of ACUS Net Sales (“Cumulative
Net Sales”) equals [CONFIDENTIAL TREATMENT REQUESTED] /*/, [CONFIDENTIAL
TREATMENT REQUESTED] /*/ % of ACUS Net Sales;


(ii)                                                    from the time that Cumulative Net Sales are greater than [CONFIDENTIAL
TREATMENT REQUESTED] /*/ until they equal [CONFIDENTIAL TREATMENT REQUESTED]
/*/, [CONFIDENTIAL TREATMENT REQUESTED] /*/ % of ACUS Net Sales;



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(iii)                                                 at all times after Cumulative Net Sales have reached [CONFIDENTIAL
TREATMENT REQUESTED] /*/, [CONFIDENTIAL TREATMENT REQUESTED] /*/ % of ACUS Net
Sales.


(b) The parties acknowledge and agree that ACUS shall
be entitled to terminate the payment of the royalty when the total amount of
royalty paid by ACUS to BRACCO (including amounts paid pursuant to Section 6.02
(a)) has reached . As a consequence of the credit against future royalties
provided for in Section 3.01 (b), then


(i) ACUS shall be entitled to terminate the payment of
the royalty when the total amount of royalty paid by ACUS to BRACCO has reached
[CONFIDENTIAL TREATMENT REQUESTED] /*/ in case ACUS has already paid to BRACCO
the amount provided for in either Section 3.01 (a) (iii) or 3.01 (a) (iv)


(ii) ACUS shall be entitled to terminate the payment
of the royalty when the total amount of royalty paid by ACUS to BRACCO has
reached [CONFIDENTIAL TREATMENT REQUESTED] /*/, in case ACUS has already paid
to BRACCO the amounts provided for in both Section 3.01 (a) (iii) and 3.01 (a)
(iv).


3.03                           Payments. During the term
of the Agreement, within sixty (60) days after the end of each calendar quarter
following the first sale of the Licensed Product in the market, ACUS shall
submit to BRACCO a written statement, according to the model attached in
Exhibit 3.03, identifying the number of Licensed Products sold in the relating
calendar quarter for which royalties are payable and the amount of royalties
due according to Section 3.02 above. Concurrent with the submission of
royalties statement, ACUS shall pay to BRACCO the full amount of royalties
shown thereon. For royalties based on Net Sales of Nycomed, ACUS shall have 75
days after the end of each calendar quarter to provide such report and payment.


ACUS shall pay to
BRACCO in Euro to the account of BRACCO specified in Exhibit 3.03 or such other account as designated by
BRACCO, all in accordance with the instructions by BRACCO as may be modified
from time to time, and by the due dates of the written statements of Section
3.03, the royalties due as specified in such written statements. Net Sales denominated in local currencies shall
be converted in Euro using the exchange rate fixed by the European Central Bank
on the last business day of the relevant calendar quarter.


3.04                           Records. In order that the royalties and
statements provided for in this Article 3 may be verified, ACUS shall keep
complete and accurate books and records relating to all receipts of ACUS Net
Sales by or for it and/or its Subsidiaries, sub-licensee and/or distributors,
for a period of three (3) years following such sales or other disposals. Upon
seven (7) days prior written notice to ACUS, BRACCO shall have the right to
inspect the books and records of ACUS and/or its Subsidiaries from time to
time, in order to verify the correctness of the aforementioned royalty
statements. Any such inspection shall take place no more than once in each
calendar year and shall be conducted by an independent auditor selected by
BRACCO and reasonably accepted by ACUS. ACUS shall willingly co-operate and
provide all such assistance in connection with such inspection as BRACCO and/or
its representatives may reasonably require. Such independent auditor shall
agree to maintain the confidentiality of ACUS books and records, it being 



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understood that the only information that he shall be entitled to
disclose to BRACCO shall be his conclusions regarding whether the
aforementioned royalty statements were correct and, if not, in what respects
they were incorrect.


The inspection shall be conducted at BRACCO’ own expense, provided
that in the event that any underpayment of the monies actually due is
established, in addition to ACUS’s obligation promptly to make up for such
underpayment increased by the interest according to Article 3.05, the cost of
the inspection shall be borne by ACUS, without prejudice to any other claim or
remedy as BRACCO may have under the Agreement or under applicable law.  BRACCO’ right of inspection as set out in this
Article 3.04 shall survive termination or expiration of this Agreement for a
period of 3 years.


ACUS agrees to furnish whatever additional information BRACCO may
reasonably request from time to time in order to enable BRACCO to ascertain
ACUS Net Sales and the amount of royalties payable.


3.05                           Interest. If ACUS does not pay any amount due
by the dates specified in Articles 3.01 and 3.03, such amounts shall
automatically accrue interest on a daily basis at the yearly rate of EURIBOR
three months plus 150 basis points calculated from the due date until the date
of payment.


3.06                          Termination. 
The obligation of ACUS to pay royalties hereunder shall terminate for
each country concurrently with the expiration or termination of the last
applicable Valid Claim of the Licensed Patents in such country in which the
Licensed Product is developed, made, used or sold.


3.07                          Taxes. 
All payments due hereunder shall be paid after deducting any taxes or
other fees which may be imposed on such payments by any government (other than
taxes payable by ACUS on its income).  Any withholding tax required to be withheld
by ACUS on royalty payments under the laws of any country on behalf of BRACCO
will be timely paid by ACUS to the appropriate governmental authority, and ACUS
will furnish BRACCO with proof of payment of such tax.  If at any time legal restrictions prevent the
prompt remittance of part or all of any payments owed by ACUS to BRACCO
hereunder with respect to any country, payment shall be made through any lawful
means or methods that may be available, and as ACUS shall reasonably determine
is appropriate.


Article 4


Term and Termination


4.01                          This Agreement shall be effective as from the
Effective Date and, unless terminated earlier pursuant to Article 4.02, Article
4.03, Article 6.02 or Article 6.05, shall remain in force and effect until the
date of expiration of the last to expire of Valid Claim of the Licensed Patents
in each country.


4.02                          In the event of a material breach of
or a material failure to perform any of the obligations set forth in the
Agreement by ACUS or BRACCO or any of their respective Subsidiaries, the
non-breaching Party shall have the right to terminate the Agreement forthwith
by notice in writing, provided that it has given written notice to the other Party
describing the 



 6
 






 



 


details of the alleged breach or failure and such breach or failure
is not corrected within thirty (30) days after written notice describing such
breach or failure has been given by the non-breaching Party.


4.03                          If a Party enters into a proceeding
relating to dissolution, files a voluntary petition in bankruptcy, seeks any
court or governmental protection from creditors or makes any assignment for
creditors, or should an order be entered pursuant to any law relating to
bankruptcy or insolvency appointing a receiver or trustee for such Party, the
other Party may give written notice terminating the Agreement and the Agreement
shall then be terminated in accordance with the notice; provided that in no
event shall BRACCO take any action seeking to terminate or modify the Agreement
by reason of or in connection with its dissolution or bankruptcy, or any other
act taken, or occurrence or event incurred, by BRACCO as described in this
Article 4.03.


4.04                           The following rights and obligations
shall survive any termination of the Agreement to the degree necessary to
permit their fulfilment or discharge:


(a)                                  BRACCO’ right to receive or recover
and ACUS’s obligation to pay royalties on Net Sales made prior to the date of
such termination as well as any applicable interest accrued or to accrue for
payment at the time of termination, and


(b)                                 the inspection rights pursuant to
Article 3.04 for so long as any amount payable under Section 3.02 remains
unpaid; and


(c)                                  the confidentiality obligations of
Article 6.06.


Article
5


Representations and Warranties; Limitation of
Liability


5.01                          Representations and Warranties of ACUS. 
ACUS hereby represents and warrants (a) that it has been duly organized,
and is validly existing and in good standing as a corporation under the laws of
the State of Delaware, (b) that it has all requisite power and authority to
enter into this Agreement, (c) that this Agreement has been duly authorized,
executed and delivered by ACUS, (d) that this Agreement is a valid, binding and
enforceable agreement of ACUS,  (e) that
entering into and performing this Agreement will not conflict with or violate
any other agreement or understanding of ACUS, (f) that it and its Subsidiaries
are not involved in any pending action or procedure to oppose or challenge the
validity of any of the Licensed Patents.


5.02                          Representations and Warranties of
BRACCO.  BRACCO hereby represents and warrants (a)
that this Agreement has been duly authorized, executed and delivered by BRACCO,
(b) that this Agreement is a valid, binding and enforceable agreement of
BRACCO, (c) that entering into and performing this Agreement will not conflict
with or violate any other agreement or understanding of BRACCO, (d) that there
is no pending or in writing threatened claim or litigation challenging or
questioning the validity of, ownership or rights under the Licensed Patents,
and (e) that BRACCO has good and title to the Licensed Patents, free and clear
of any liens, pledges or encumbrances of any description. Based upon 



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the definition of the
Licensed Product included herein, which ACUS hereby represents and warrants is
an accurate and complete (where “complete” is intended to the extent to support
the following representations and warrants of BRACCO) description of its
product AI-700, BRACCO represents and warrants that, to the best of its
knowledge, Exhibit 1.05 lists all patents and patent applications now owned or
controlled by BRACCO that contain Valid Claims that would be infringed by the
manufacture, use or sale of  the Licensed
Product in any jurisdiction.


5.03                       EXCEPT AS EXPRESSLY
SET FORTH IN THIS ARTICLE V, NEITHER ACUS NOR BRACCO MAKES ANY REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED PRODUCTS, THE
LICENSED PATENTS, THE LICENSED TECHNOLOGY, OR ANY OTHER MATTER RELATED TO THIS
AGREEMENT.  WITHOUT LIMITATION OF THE
FOREGOING, ACUS AND BRACCO EACH EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.


5.04                          Except as specifically set forth in
the Agreement, BRACCO makes no warranties or representations relating to the
manufacture, purchase, sell or use of the Licensed Products, whether express or
implied (by statute or otherwise), and all warranties implied by law or
otherwise are specifically excluded.


5.05                          ACUS shall hold harmless and keep
indemnified BRACCO and its Subsidiaries with respect to any and all claims, and
costs and expenses incurred as a result of defending such claims, by third
parties against BRACCO and/or its Subsidiaries relating to or arising from the
development, manufacture, purchase, sale or use by ACUS and/or its
Subsidiaries, Sub-licensees of any Licensed Product.


Article
6


Miscellaneous


6.01                          The Agreement and the licenses granted
herein shall inure to the benefit of the Parties hereto and to any of their
respective Subsidiaries.  Except in
connection with the sale or other disposition by ACUS of its entire AI-700
business to a Permitted Assignee, in which case no approval by BRACCO shall be
required, neither ACUS, nor its Subsidiaries shall assign or transfer any of
its rights hereunder without the prior written consent of BRACCO which shall
not be unreasonably withheld, whether such assignment or transfer is by way of
merger, acquisition of stock or assets, contract, change of control, operation
of law, or otherwise.


6.02                          (a)            In
the event ACUS desires to assign its right under Section 6.01 hereof to a
Permitted Assignee, ACUS shall promptly inform BRACCO communicating the name of
such Permitted Assignee and, at the time of such assignment, ACUS shall pay to
BRACCO an amount equal to [CONFIDENTIAL TREATMENT REQUESTED] /*/ minus all amounts previously paid to
BRACCO as royalties hereunder (including 50% of amounts paid pursuant to
Section 3.01 (a) (iii) and (iv)).



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(b)           In the event that
ACUS desires to market or sell the Licensed Product in the Territory through
anyone other than a Permitted Sublicensee or to assign its rights under Section
6.01 hereof to anyone other than a Permitted Assignee, it shall submit a
request in writing to BRACCO.  Such
request  shall be delivered by registered
letter anticipated by facsimile or email pursuant to Section 6.07, and shall
include the name of the proposed sublicensee or assignee and, in the case of a
sublicense, the proposed territory to be covered by such sublicensee.  BRACCO shall have fifteen full business days
after receipt of such request to respond to ACUS, and any response refusing the
requested consent shall state the reasons for such refusal.  If BRACCO does not respond to ACUS’s request
with such reasons by 5:00 p.m., Boston Time, on the fifteenth full business day
in Boston after receipt of the request by BRACCO, it shall be deemed to have
consented to such request for all purposes hereunder.


(c)            If ACUS’ request
of BRACCO’s permission according to Section 2.01 to sublicense the Licensed
Patents to a third party that is not a Permitted Sublicensee is refused by
BRACCO and, notwithstanding BRACCO’s refusal, ACUS grants any right to market
or sell the Licensed Product in the Territory to such third party, BRACCO may
terminate the Agreement with respect to the particular jurisdiction or
jurisdictions within the Territory where the Licensed Product is marketed or
sold through such third party, but shall have no other remedy under this Agreement.


(d)           If ACUS’ request
of BRACCO’s permission to assign under Section 6.01 hereof its
rights and obligations hereunder to a third party that is not a Permitted
Assignee is refused by  BRACCO, ACUS,
within thirty (30) days from BRACCO’s refusal, may terminate the Agreement upon
payment to BRACCO of (i) an amount equal to [CONFIDENTIAL TREATMENT REQUESTED]
/*/ minus all amounts previously paid to BRACCO as royalties hereunder
(including 50% of amounts paid pursuant to Section 3.01 (iii) and (iv)),  and (ii) an amount equal to [CONFIDENTIAL
TREATMENT REQUESTED] /*/ as additional financial compensation.   In such event, BRACCO agrees to negotiate in
good faith with such third party, to whom ACUS has sold or otherwise disposed
its entire AI-700 business, the terms and conditions of a license agreement
under the Licensed Patents.


6.03                          Nothing contained in the Agreement
shall be construed as:


(i)               a warranty or representation by BRACCO
and/or its Subsidiaries as to the validity or scope of any patent rights licensed
hereunder; or,


(ii)             a warranty or representation that any
manufacture, sale, lease, use or other disposition of Licensed Products
hereunder will be free from infringement of third parties’ patent rights, or
other industrial or intellectual property rights, under which no express
licenses have been granted pursuant to the Agreement; or,


(iii)         an obligation on BRACCO and/or its Subsidiaries to file any patent
application or to secure any patent rights or maintain any patent rights in
force; or,


(iv)        an agreement to bring or prosecute actions or suits against third
parties for 



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infringement or conferring any rights to bring or prosecute actions
or suits against third parties for infringement; or,


(v)           conferring any right upon ACUS and/or its Subsidiaries to use in
advertising, publicity or otherwise, any trademark, trade name or names, or any
contraction, abbreviation or simulation thereof, of BRACCO and/or its
Subsidiaries, except that ACUS may state that its ultrasound contrast agent
products are licensed under BRACCO’ patents; or,


(vi)        conferring upon ACUS and/or its Subsidiaries any license or other
right under any patent rights or other industrial or intellectual property
rights except for the licenses and rights expressly granted hereunder; or,


(vii)     an obligation of BRACCO and/or its Subsidiaries to furnish any
technical information or know-how to ACUS and/or its Subsidiaries.


6.04                          Each Party shall give prompt notice to the
other if either Party becomes aware of any infringement or threatened infringement
of the Licensed Patents. ACUS agrees not to take any steps in, or to compromise
any litigation relating to the Licensed Patents, or threatened or potential
litigation, without the prior written consent of BRACCO.


6.05                           If ACUS, its Subsidiaries or its
Sub-licensees initiates and/or carries on any action or procedure to oppose or
challenge the validity of any of the Licensed Patents, any and all sums set
forth in Article 3.01 will become immediately due and BRACCO shall be entitled
at its own discretion either to terminate the Agreement forthwith or,
irrespectively of what is provided for in Sections 3.02 (a) and 3.02 (b), to
receive from ACUS a royalty equal to [CONFIDENTIAL TREATMENT REQUESTED] /*/ % of ACUS Net Sales until the expiration o f the Agreement.


6.06                          During the term of the Agreement and for a
period of five (5) years following the expiration or earlier termination
hereof, each Party shall maintain in confidence the information received by the
other Party, including but not limited to the ones relating to the existence
and terms of the Agreement, and shall not disclose, use or grant the use of
such information of the other Party, except on a need-to-know basis to such
Party’s or its Subsidiaries’ directors, officers and employees, and such Party’s
consultants and collaborators, to the extent such disclosure is reasonably
necessary in connection with such Party’s activities as expressly authorized by
the Agreement.  To the extent that
disclosure to any person is authorized by the Agreement, prior to disclosure, a
Party shall advise such person of the confidential nature of such information
and not to disclose, use or grant the use of the information of the other Party
except as expressly permitted under the Agreement. The confidentiality obligations
under this Article 6.05 shall not apply to the extent that a Party is required
to disclose information by applicable law, regulation or order of a
governmental agency or a court of competent jurisdiction; provided, however,
that to the extent practicable, such Party (a) shall provide advance
written notice thereof to the other Party and consult with the other Party
prior to such disclosure with respect thereto, and (b) shall provide the
other Party with reasonable assistance, as requested by 



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the other Party, to
object to any such disclosure or to request confidential treatment thereof, and
(c) shall take reasonable action to avoid and/or minimize the extent of such
disclosure. BRACCO understands that promptly after execution of this Agreement,
ACUS shall report the Agreement pursuant to a filing of a report on Form 8-K
with the United States Securities and Exchange Commission (“SEC”), which report
shall include filing a copy of this Agreement with the exclusion of those
Sections relating to the financial and commercial terms that, upon ACUS’ prompt
request, the SEC will accept to maintain confidential.


6.07                           Any notice or request required or
permitted to be given under or in connection with this Agreement or the subject
matter hereof, shall be deemed to have been sufficiently given when, if given
to ACUS, addressed to:


Sherri Oberg,

President and CEO

Acusphere, Inc.

500 Arsenal Street

Watertown, MA 02472

USA




Facsimile:  (617) 926-4750

Phone: (617) 648-8800


and, if given to
BRACCO, addressed to:


Dr. Roberto Rettani

CEO and Managing Director

Bracco Imaging Spa

Via Egidio Folli 50

20134 Milano

Italy


Phone:      (+39) 02 21 77 28 18

Facsimile:  (+39) 02 21 77 27 71


 


copy to:


Legal Department

Bracco Spa

Via Egidio Folli 50

20134 Milano

Italy


Phone:      (+39) 02 21 77 24 31

Facsimile:  (+39) 02 21 77 27 74



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sent by electronic telecopy (fax) or email and, in each case,
confirmed by certified or registered mail.


Any notice, if sent properly addressed by electronic telecopy (fax)
or email and confirmed by certified or registered mail, shall be deemed made on
the certified or delivered date.


Either Party may give written notice of a change of address in the
above-mentioned way and, after notice of such change has been received, any
notice or request required to be given shall thereafter be given to such Party
at such changed address in the manner as provided above.


6.08         The Agreement shall be governed by and
construed in all respects in accordance with the Swiss law.


If a divergence or a dispute between the Parties arising out of or in
connection with this Agreement cannot be settled by them though negotiations in
good faith, such divergence or dispute shall be finally settled by a panel of
three Arbitrators, appointed one by each of the Parties and a third, who shall
act as President, either by agreement between the two Arbitrators or, in the
absence of such agreement, by the President of the Swiss Federal Tribunal.


The Party requesting arbitration shall notify the other Party of its
intention and shall at the same time indicate its own appointed Arbitrator.


The Party receiving such notice shall within 30 (thirty) days of said
notice appoint its own Arbitrator and notify the other Party thereof.


The President of the Swiss Federal Tribunal shall also proceed with
the appointment of an Arbitrator if any Party required to proceed with such an
appointment shall not have done so within the aforesaid 30 (thirty) day period,
and the President of the Swiss Federal Tribunal shall proceed in the same way
in the event that the Parties do not agree on the appointment of the third
Arbitrator.


The Arbitration shall be held in accordance with Chapter XII of the
Swiss Federal Law on Private International Law, the Parties expressly excluding
all appeal against the award of the arbitral tribunal. The seat of the
Arbitration panel shall be in Geneva, and the proceedings shall be in the
English language.


6.09                         The waiver by either Party of a breach
or default of any provision of the Agreement by the other Party shall not be
construed as a waiver by such Party of any succeeding breach of the same or
other provisions, nor shall any delay or omission on the part of either Party
to exercise or avail itself of any right, power or privilege that it has or may
have hereunder, operate as a waiver of any right, power or privilege by such
Party.


6. 10                        The Agreement sets forth the entire
agreement and understanding between the Parties hereto as to the subject matter
hereof and merges and supersedes all prior discussions between them and neither
of the Parties shall be bound by any conditions, definitions, warranties,
waivers, releases to the subject matter of the Agreement, other than expressly 



 12
 






 



 


provided for herein, or as duly set forth on or subsequent to the
date hereof in writing, signed by duly authorized representatives of the
Parties hereto to be bound thereby.


6.11                           In the event that any provision of the
Agreement shall finally be determined to be unlawful or unenforceable, such
provision shall be deemed severed from the Agreement, but all other provisions
of the Agreement shall remain in full force and effect, and in substitution for
any such provision held unlawful or unenforceable, there shall be substituted a
provision of similar import reflecting the original intent of the Parties
hereto to the extent permissible under applicable law.


6.12                           The Agreement is executed in two (2)
counterparts, each of which shall constitute one original copy.


IN WITNESS WHEREOF,
the Parties have executed the Agreement by their duly authorised
representative.


	
  ACUSPHERE INC.

  	
  BRACCO INTERNATIONAL
  BV

  



 


	
  By:

  	
   

  	
  /s/ Sherri C. Oberg

  	
  By:

  	
   

  	
  /s/ Diana Bracco

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Sherri C. Oberg

  	
  Name:

  	
   

  	
  Diana Bracco

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  President

  	
  Title:

  	
   

  	
  Managing Director,
  Bracco Holdings BV

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  June 1, 2006

  	
  Date:

  	
   

  	
  June 1, 2006

  




 13
 






 



 


EXHIBIT 1.05 - BRACCO
Patents and Patent Applications. 
Includes patents and patent applications listed below and all other
patents and applications claiming priority to any of the applications listed
below or any of the applications that resulted in the below-listed patents.


[CONFIDENTIAL
TREATMENT REQUESTED] /*/



 14
 






 



 


EXHIBIT
1.08


[CONFIDENTIAL
TREATMENT REQUESTED] /*/



 15
 






 



 


EXHIBIT
1.09


 


Australia,


Austria,


Belgium,


Canada,


China,


Denmark,


Finland,


France,


Germany,


Great Britain,


Hungary,


Israel,


Italy,


Japan,


Netherlands,


Norway,


Republic of Korea,


Russian Federation,


Spain,


Sweden,


Switzerland,


United States of America.



 16
 






 



 


EXHIBIT
2.01


Albania,
Andorra, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina,
Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France,
Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Kazakhstan,
Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco,
Netherlands, Norway, Poland, Portugal, Republic of Moldova, Romania, Russian
Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, The former Yugoslav
Republic of Macedonia, Turkey, Tadzhikistan, Turkmenistan, Ukraine, Uzbekistan,
United Kingdom and Yugoslavia.



 17
 






 



 


EXHIBIT 3.03


QUARTERLY
SALES REPORT MODEL:  1st (2nd, 3rd, 4th)
QUARTER YYYY


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Sales

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Presentation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Amount

  	
   

  	
   

  	
   

  	
  Sales

  	
   

  
	
   

  	
   

  	
  Company

  	
   

  	
  (e.g. 10ml,

  	
   

  	
  Units

  	
   

  	
  Local

  	
   

  	
  in Local

  	
   

  	
  Exchange

  	
   

  	
  Amount

  	
   

  
	
  Country

  	
   

  	
  [Distributor]

  	
   

  	
  50ml etc.)

  	
   

  	
  Sold

  	
   

  	
  Currency

  	
   

  	
  Currency

  	
   

  	
  Rate

  	
   

  	
  in Euro

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Total Euro

  	
   

  	
   

  	
   

  



 


 


 


Royalty
Calculation:


 


 


 


 


Bracco
Account:


[CONFIDENTIAL TREATMENT
REQUESTED] /*/



 18