Patent License Agreement

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 arms92 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 Bracco92s 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 ACUS92s 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 thereo ...