Warrant Agreement With Tbcc Funding Trust I

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AS TO THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS.


NO.
STOCK SUBSCRIPTION WARRANT


TO PURCHASE SERIES F NON-VOTING CONVERTIBLE PREFERRED STOCK OF


ACUSPHERE, INC. (THE "COMPANY")


DATE OF INITIAL ISSUANCE: FEBRUARY 21, 2001


THIS CERTIFIES THAT for value received, TBCC FUNDING TRUST I or its registered assigns (hereinafter called the "Holder") is entitled to purchase from the Company, at any time during the Term of this Warrant, Twenty-Five Thousand Two Hundred Sixty-Four (25,264) shares of Series F Non-Voting Convertible Preferred Stock, $0.01 par value, of the Company (the "Preferred Stock"), at the Warrant Price, payable as provided herein. The exercise of this Warrant shall be subject to the provisions, limitations and restrictions herein contained, and may be exercised in whole or in part.


SECTION 1. DEFINITIONS.


For all purposes of this Warrant, the following terms shall have the meanings indicated:


COMMON STOCK - shall mean and include the Company's authorized Common Stock, $0.01 par value, as constituted at the date hereof.


EXCHANGE ACT - shall mean the Securities Exchange Act of 1934, as amended from time to time.


SECURITIES ACT - shall mean the Securities Act of 1933, as amended.


TERM OF THIS WARRANT - shall mean the period beginning on the date of initial issuance hereof and ending on February 21, 2008.


WARRANT PRICE - $4.75 per share, subject to adjustment in accordance with Section 5 hereof.


WARRANTS - this Warrant issued in connection with a Commitment Letter dated December 5, 2000 executed by the Company and Transamerica Business Credit Corporation (the "Commitment Letter") to the original holder of this Warrant, or any transferees from such original holder or this Holder.


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WARRANT SHARES - shares of Preferred Stock purchased or purchasable by the Holder of this Warrant upon the exercise hereof.


SECTION 2. EXERCISE OF WARRANT.


2.1. PROCEDURE FOR EXERCISE OF WARRANT. To exercise this Warrant in whole or in part (but not as to any fractional share of Preferred Stock), the Holder shall deliver to the Company at its office referred to in Section 11 hereof at any time and from time to time during the Term of this Warrant: (i) the Notice of Exercise in the form attached hereto, (ii) cash, certified or official bank check payable to the order of the Company, wire transfer of funds to the Company's account, or evidence of any indebtedness of the Company to the Holder (or any combination of any of the foregoing) in the amount of the Warrant Price for each share being purchased, and (iii) this Warrant. Notwithstanding any provisions herein to the contrary, if the Current Market Price (as defined in Section 5) of one share of Common Stock is greater than the Warrant Price (at the date of calculation, as set forth below), in lieu of exercising this Warrant as hereinabove permitted, the Holder may elect to receive shares of Preferred Stock equal to the value (as determined below) of this Warrant (or the portion thereof being canceled) by surrender of this Warrant at the office of the Company referred to in Section 11 hereof, together with the Notice of Exercise, in which event the Company shall issue to the Holder that number of shares of Preferred Stock computed using the following formula:


PS = WPS x (CMP-WP)
--------------
CMP


Where


PS equals the number of shares of Preferred Stock to be issued to
the Holder


WPS equals the number of shares of Preferred Stock purchasable under
the Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being exercised (at the
date of such calculation)


CMP equals the Current Market Price of one share of Common Stock (at
the date of such calculation)


WP equals the Warrant Price (as adjusted to the date of such
calculation)


In the event of any exercise of the rights represented by this Warrant, a certificate or certificates for the shares of Preferred Stock so purchased, registered in the name of the Holder or such other name or names as may be designated by the Holder, shall be delivered to the Holder hereof within a reasonable time, not exceeding fifteen (15) days, after the rights represented by this Warrant shall have been so exercised; and, unless this Warrant has expired, a new Warrant representing the number of shares (except a remaining fractional share), if any, with respect to which this Warrant shall not then have been exercised shall also be issued to the Holder hereof within such time. The person in whose name any certificate for shares of Preferred Stock is issued upon exercise of this Warrant shall for all purposes be deemed to have become the holder of record of such shares on the date on which the Warrant was surrendered and payment of the Warrant Price and any applicable taxes was made, irrespective of the date of delivery of such certificate, except that, if the date of such surrender and payment is a date when the stock transfer


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books of the Company are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the stock transfer books are open.


2.2. TRANSFER RESTRICTION LEGEND. Each certificate for Warrant Shares shall bear the following legend (and any additional legend required by (i) any applicable state securities laws and (ii) any securities exchange upon which such Warrant Shares may, at the time of such exercise, be listed) on the face thereof unless at the time of exercise such Warrant Shares shall be registered under the Securities Act:


"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY AS TO AN EXEMPTION THEREFROM UNDER SAID ACT."


Any certificate issued at any time in exchange or substitution for any certificate bearing such legend (except a new certificate issued upon completion of a public distribution under a registration statement of the securities represented thereby) shall also bear such legend unless, in the opinion of counsel for the holder thereof (which counsel shall be reasonably satisfactory to counsel for the Company) the securities represented thereby are not, at such time, required by law to bear such legend.


SECTION 3. COVENANTS AS TO PREFERRED STOCK. The Company covenants and agrees that all shares of Preferred Stock that may be issued upon the exercise of the rights represented by this Warrant will, upon issuance, be validly issued, fully paid and nonassessable, and free from all liens and charges with respect to the issue thereof. The Company further covenants and agrees that it will pay when due and payable any and all federal and state taxes which may be payable in respect of the issue of this Warrant or any Preferred Stock or certificates therefor issuable upon the exercise of this Warrant. The Company further covenants and agrees that the Company will at all times have authorized and reserved, free from preemptive rights, a sufficient number of shares of Preferred Stock to provide for the exercise of the rights represented by this Warrant.


SECTION 4. ADJUSTMENT OF NUMBER OF SHARES. Upon each adjustment of the Warrant Price as provided in Section 5, the Holder shall thereafter be entitled to purchase, at the Warrant Price resulting from such adjustment, the number of shares (calculated to the nearest tenth of a share) obtained by multiplying the Warrant Price in effect immediately prior to such adjustment by the number of shares purchasable pursuant hereto immediately prior to such adjustment and dividing the product thereof by the Warrant Price resulting from such adjustment.


SECTION 5. ADJUSTMENT OF WARRANT PRICE. The Warrant Price shall be subject to adjustment from time to time as follows:


(i) Antidilution rights applicable to the Preferred Stock purchaseable hereunder are as set forth in the Company's Certificate of Incorporation, as amended and in effect from time to time (the "Charter"). The Company shall promptly provide the Holder with any restatement, amendment, modification or waiver of the Charter.


(ii) If, at any time during the Term of this Warrant, the number of shares of Preferred Stock outstanding is increased by a stock dividend payable in shares of Preferred Stock or by a subdivision or


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split-up of shares of Preferred Stock, then, following the record date fixed for the determination of holders of Preferred Stock entitled to receive such stock dividend, subdivision or split-up, the Warrant Price shall be appropriately decreased so that the number of shares of Preferred Stock issuable upon the exercise hereof shall be increased in proportion to such increase in outstanding shares.


(iii) If, at any time during the Term of this Warrant, the number of shares of Preferred Stock outstanding is decreased by a combination of the outstanding shares of Preferred Stock, then, following the record date for such combination, the Warrant Price shall appropriately increase so that the number of shares of Preferred Stock issuable upon the exercise hereof shall be decreased in proportion to such decrease in outstanding shares.


(iv) For the purpose of any computation pursuant to this Agreement, the Current Market Price at any date of one share of Common Stock shall be deemed to be the average of the daily closing prices for the 15 consecutive business days ending on the last business day before the day in question (as adjusted for any stock dividend, split, combination or reclassification that took effect during such 15 business day period). The closing price for each day shall be the last reported sales price regular way or, in case no such reported sales took place on such day, the average of the last reported bid and asked prices regular way, in either case on the principal national securities exchange on which the Common Stock is listed or admitted to trading or as reported by Nasdaq (or if the Common Stock is not at the time listed or admitted for trading on any such exchange or if prices of the Common Stock are not reported by Nasdaq then such price shall be equal to the average of t ...