exv10w3



 






Exhibit 10.3




Nonstatutory Stock Option Grant Agreement




Under The




Visicu, Inc. Equity Incentive Plan




     1. Terminology. All capitalized words that are not defined in this Agreement have the
meanings ascribed to them in the Plan and/or the Glossary at the end of the Agreement.



     2. Vesting.



          The Options vest in accordance with the vesting schedule identified in the Stock Option
Certificate which is attached hereto and constitutes a part of the Agreement (the “Vesting
Schedule”), so long as the Optionee is in the continuous employ of, or in a service relationship
with, the Company from the Grant Date through the applicable date upon which vesting is scheduled
to occur. No vesting will accrue to any Options after the Optionee ceases to be in either an
employment or other service relationship with the Company.




     3. Exercise of Options.



          (a) Right to Exercise. The Optionee may exercise the Options to the extent vested at
any time on or before the Expiration Date or the earlier termination of the Options, unless
otherwise provided in this Agreement. Section 4 below describes certain limitations on exercise of
the Options that apply in the event of the Optionee’s termination of employment or other service
relationship with the Company. The Options may be exercised only in multiples of whole shares and
may not be exercised at any one time as to fewer than one hundred shares (or such lesser number of
shares as to which the Options are then exercisable). No fractional shares will be issued under
the Options.




          (b) Exercise Procedure. In order to exercise the Options, the following items must be
delivered to the Secretary of the Company before the expiration or termination of the Options: (i)
an exercise notice, in such form as the Administrator may require from time to time, specifying the
number of Option Shares to be purchased, and (ii) full payment of the Exercise Price for such
Option Shares or properly executed, irrevocable instructions, in such form as the Administrator may
require from time to time, to effectuate a broker-assisted cashless exercise, each in accordance
with Section 3(c) of this Agreement, and (iii) an executed copy of any other agreements requested
by the Administrator pursuant to Section 3(d) of this Agreement. An exercise will not be effective
until all of the foregoing items are received by the Secretary of the Company.




          (c) Method of Payment. Payment of the Exercise Price may be made by delivery of cash,
certified or cashier’s check, money order or other cash equivalent acceptable to the Administrator
in its discretion, a broker-assisted cashless exercise in accordance with Regulation T of the Board
of Governors of the Federal Reserve System through a brokerage firm approved by the Administrator,
or a combination of the foregoing. In addition, payment of the Exercise Price may be made by any
of the following methods, or a combination thereof, as determined by the Administrator in its
discretion at the time of exercise.





     (i) by tender (via actual delivery or attestation) to the Company of other shares of
Common Stock of the Company which have a Fair Market Value on the date of tender equal to
the Exercise Price, provided that tender of such shares will not result in
the Company having to record a charge to earnings under United States generally accepted
accounting principles then applicable to the Company;



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     (ii) by withholding of Option Shares otherwise issuable pursuant to the exercise which
have a Fair Market Value on the date of exercise equal to the Exercise Price;




     (iii) by delivery of the Optionee’s full recourse promissory note payable to the
Company in a form approved by the Administrator; or




     (iv) by any other method approved by the Administrator.



          (d) Agreement by Optionee to Execute Other Agreements. The Optionee agrees to
execute, as a condition precedent to the exercise of the Options and at any time thereafter as may
reasonably be requested by the Administrator including, but not limited to, a stock restriction
agreement with respect to any Option Shares acquired by the Optionee pursuant to this Agreement.




          (e) Issuance of Shares upon Exercise. Upon exercise of the Options in accordance with
the terms of this Agreement, the Company will issue to the Optionee, the brokerage firm specified
in the Optionee’s delivery instructions pursuant to a broker-assisted cashless exercise, or such
other person exercising the Options, as the case may be, the number of shares of Common Stock so
paid for, in the form of fully paid and nonassessable stock. The Company will deliver stock
certificates for the Option Shares as soon as practicable after exercise, which certificates will,
unless such Option Shares are registered or an exemption from registration is available under
applicable federal and state law, bear a legend restricting transferability of such shares and
referencing any applicable stock restriction agreement.




     4. Termination of Employment or Service.



          (a) Exercise Period Following Cessation of Employment or Other Service Relationship.
If the Optionee ceases to be employed by, or in a service relationship with, the Company for any
reason, (i) the unvested Options, after giving effect to the provisions of Section 2 of this
Agreement, terminate immediately upon such cessation, and (ii) the vested Options remain
exercisable during the 30-day period following such cessation, but in no event after the Expiration
Date. Unless sooner terminated, the vested Options terminate upon the expiration of such 30-day
period.




          (b) Misconduct. Notwithstanding anything to the contrary in this Agreement, the
Options terminate in their entirety, regardless of whether the Options are vested, immediately upon
the Optionee’s discharge of employment or other service relationship for cause (as defined in any
applicable agreement between the Optionee and the Company) or upon the Optionee’s commission of any
of the following acts during any period following the cessation of employment or other service
relationship during which the Options otherwise would be exercisable: (i) fraud on or
misappropriation of any funds or property of the Company, or (ii) breach by the Optionee of any
provision of any employment, non-disclosure, non-competition, non-solicitation, assignment of
inventions, or other similar agreement executed by the Optionee for the benefit of the Company, as
determined by the Administrator, which determination will be conclusive.




     5. Nontransferability of Options. These Options are nontransferable otherwise than by
will or the laws of descent and distribution and during the lifetime of the Optionee, the Options
may be exercised only by the Optionee or, during the period the Optionee is under a legal
disability, by the Optionee’s guardian or legal representative. Except as provided above, the
Options may not be assigned, transferred, pledged, hypothecated or disposed of in any way (whether
by operation of law or otherwise) and shall not be subject to execution, attachment or similar
process.



     6. Nonstatutory Nature of the Options. The Options are not intended to
qualify as incentive stock options within the meaning of Code section 422, and this Agreement shall
be so construed. The Optionee acknowledges that, upon exercise of the Options, the Optionee will
recognize taxable income in an amount equal to the excess of the then Fair Market Value of the
Option Shares over the Exercise



 









 




Price and must comply with the provisions of the Plan with respect to any tax withholding
obligations that arise as a result of such exercise.




     7. Market Stand-Off Agreement. You agree that following the effective date of a
registration statement of the Company filed under the Securities Act of 1933, you, for the duration
specified by and to the extent requested by the Company and an underwriter of Common Stock or other
securities of the Company, shall not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, enter into a transaction which would have the same
effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any
of the economic consequences of ownership of such securities, whether any such aforementioned
transaction is to be settled by delivery of such securities or other securities, in cash or
otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition,
or to enter into any such transaction, swap, hedge or other arrangement, in each case during the
seven days prior to and the 180 days after the effectiveness of any underwritten offering of the
Company’s equity securities (or such longer or shorter period as may be requested in writing by the
managing underwriter and agreed to in writing by the Company) (the “Market Stand-Off Period”),
except as part of such underwritten registration if otherwise permitted. In addition, you agree to
execute any further letters, agreements and/or other documents requested by the Company or its
underwriters that are consistent with the terms of this Section 7. The Company may impose
stop-transfer instructions with respect to securities subject to the foregoing restrictions until
the end of such Market Stand-Off Period.



     8. Confidential Information. In consideration of the Options granted to the Optionee
pursuant to this Agreement, the Optionee agrees and covenants that, except as specifically
authorized by the Company, the Optionee will keep confidential any trade secrets or confidential or
proprietary information of the Company which are now or which hereafter may become known to the
Optionee as a result of the Optionee’s employment by or other service relationship with the
Company, and shall not at any time, directly or indirectly, disclose any such information to any
person, firm, Company or other entity, or use the same in any way other than in connection with the
business of the Company, at all times during and after the Optionee’s employment or other service
relationship. The provisions of this Section 8 shall not narrow or otherwise limit the obligations
and responsibilities of the Optionee set forth in any agreement of similar import entered into
between the Optionee and the Company.



     9. Non-Guarantee of Employment or Service Relationship. Nothing in the Plan or this
Agreement shall alter the at-will or other employment status or other service relationship of the
Optionee, nor be construed as a contract of employment or service relationship between the Company
and the Optionee, or as a contractual right of Optionee to continue in the employ of, or in a
service relationship with, the Company for any period of time, or as a limitation of the right of
the Company to discharge the Optionee at any time with or without cause or notice and whether or
not such discharge results in the failure of any Options to vest or any other adverse effect on the
Optionee’s interests under the Plan.



     10. No Rights as a Stockholder. The Optionee shall not have any of the rights of a
stockholder with respect to the Option Shares until such shares have been issued to him or her upon
the due exercise of the Options. No adjustment shall be made for dividends or distributions or
other rights for which the record date is prior to the date such shares are issued.



     11. The Company’s Rights. The existence of the Options shall not affect in any way
the right or power of the Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company’s capital structure or its
business, or any merger or consolidation of the Company, or any issue of bonds, debentures,
preferred or other stocks with preference ahead of or convertible into, or otherwise affecting the
Common Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale
or transfer of all or any part of the Company’s assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.



 









 





     12. Invalidity or Unenforceability. It is the intention of the Company and the
Optionee that this Agreement shall be enforceable to the fullest extent allowed by law. In the
event that a court having jurisdiction holds any provision of this Agreement to be invalid or
unenforceable, in whole or in part, the Company and the Optionee agree that, if allowed by law,
that provision shall be reduced to the degree necessary to render it valid and enforceable without
affecting the rest of this Agreement.



     13. Waiver. No delay or omission by the Company in exercising any right under this
Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the
Company on any one occasion shall be effective only in that instance and shall not be construed as
a bar or waiver of any right on any other occasion.



     14. Optionee. Whenever the word “Optionee” is used in any provision of this Agreement
under circumstances where the provision should logically be construed, as determined by the
Administrator, to apply to the estate, personal representative, or beneficiary to whom the Options
may be transferred by will or by the laws of descent and distribution, or another permitted
transferee, the word “Optionee” shall be deemed to include such person.



     15. Notices. All notices and other communications made or given pursuant to this
Agreement shall be in writing and shall be sufficiently made or given if hand delivered or mailed
by certified mail, addressed to the Optionee at the address contained in the records of the
Company, or addressed to the Administrator, care of the Company for the attention of its Corporate
Secretary at its principal office or, if the receiving party consents in advance, transmitted and
received via telecopy or via such other electronic transmission mechanism as may be available to
the parties.



     16. Entire Agreement. This Agreement contains the entire agreement between the
parties with respect to the Options granted hereunder. Any oral or written agreements,
representations, warranties, written inducements, or other communications made prior to the
execution of this Agreement with respect to the Options granted hereunder shall be void and
ineffective for all purposes.



     17. Amendment. This Agreement may be amended from time to time by the Administrator
in its discretion; provided, however, that this Agreement may not be modified in a
manner that would have a materially adverse effect on the Options or Option Shares as determined in
the discretion of the Administrator, except as provided in the Plan or in a written document signed
by each of the parties hereto.



     18. Conformity with Plan. This Agreement is intended to conform in all respects with,
and is subject to all applicable provisions of, the Plan. Inconsistencies between this Agreement
and the Plan shall be resolved in accordance with the terms of the Plan. In the event of any
ambiguity in this Agreement or any matters as to which this Agreement is silent, the Plan shall
govern. A copy of the Plan is provided to you with this Agreement.



     19. Governing Law. The validity, construction and effect of this Agreement, and of any
determinations or decisions made by the Administrator relating to this Agreement, and the rights of
any and all persons having or claiming to have any interest under this Agreement, shall be
determined exclusively in accordance with the laws of the State of Maryland, without regard to its
provisions concerning the applicability of laws of other jurisdictions. Any suit with respect
hereto will be brought in the federal or state courts in the districts which include the city and
state in which the principal offices of the Company are located, and the Optionee hereby agrees and
submits to the personal jurisdiction and venue thereof.



     20. Headings. The headings in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.



 









 





GLOSSARY





          (a) “Affiliate” has the meaning provided in the Plan.




          (b) “Change in Control” has the meaning provided in the Plan.




          (c) “Company” includes Visicu, Inc. and its Affiliates, except where the context otherwise
requires. For purposes of determining whether a Change in Control has occurred, Company shall mean
only Visicu, Inc.




          (d) “Fair Market Value” has the meaning provided in the Plan.




          (e) “Option Shares” mean the shares of Common Stock underlying the Options.



 









 





EXERCISE FORM




Administrator of Visicu, Inc. Equity Incentive Plan

c/o Office of the Corporate Secretary

Visicu, Inc.




Gentlemen:




     I hereby exercise the Options granted to me on                     ,                     , by Visicu, Inc.
(the “Company”), subject to all the terms and provisions of the applicable grant agreement and of
the Visicu, Inc. Equity Incentive Plan (the “Plan”), and
notify you of my desire to purchase
                    
shares of Common Stock of the Company at a price of $1.80 per share pursuant to the
exercise of said Options.



     This will confirm my understanding with respect to the shares to be issued to me by reason of
this exercise of the Options (the shares to be issued pursuant hereto shall be collectively
referred to hereinafter as the “Shares”) as follows:




     (a) I am purchasing the Shares for my own account for investment only, and not with a view to,
or for sale in connection with, any distribution of the Shares in violation of the Securities Act
of 1933 (the “Securities Act”), or any rule or regulation under the Securities Act.




     (b) I understand that the Shares are being issued without registration under the Securities
Act, in reliance upon one or more exemptions contained in the Securities Act, and such reliance is
based in part on the above representation. I also understand that the Company is not obligated to
comply with the registration requirements of the Securities Act or with the requirements for an
exemption under Regulation A under the Securities Act for my benefit.




     (c) I have had such opportunity as I deemed adequate to obtain from representatives of the
Company such information as is necessary to permit me to evaluate the merits and risks of my
investment in the Company.




     (d) I have sufficient experience in business, financial and investment matters to be able to
evaluate the risks involved in the purchase of the Shares and to make an informed investment
decision with respect to such purchase.




     (e) I can afford a complete loss of the value of the Shares and am able to bear the economic
risk of holding such Shares for an indefinite period.




     (f) I understand that (i) the Shares have not been registered under the Securities Act and are
“restricted securities” within the meaning of Rule 144 under the Securities Act; (ii) the Shares
cannot be sold, transferred or otherwise disposed of unless they are subsequently registered under
the Securities Act or an exemption from registration is then available and, therefore, they may
need to be held indefinitely; and (iii) there is now no registration statement on file with the
Securities and Exchange Commission with respect to any stock of the Company and the Company has no
obligation or current intention to register the Shares under the Securities Act. As a condition to
any transfer of the Shares, I understand that the Company may require an opinion of counsel
satisfactory to the Company to the effect that such transfer does not require registration under
the Securities Act or any state securities law.




     (g) I understand that the certificates for the Shares to be issued to me will bear a legend
substantially as follows:



 









 






The shares of stock represented by this certificate are subject to restrictions on
transfer and an option to purchase as set forth in a certain Nonstatutory Stock Option
Grant Agreement Under the Visicu, Inc. Equity Incentive Plan and any stock restriction
agreement between the corporation and the registered owner of this certificate (or his
predecessor in interest), and no transfer of such shares may be made without
compliance with those agreements. A copy of those agreements is available for
inspection at the office of the corporation upon appropriate request and without
charge.




The securities represented by this stock certificate have not been registered under
the Securities Act of 1933 (the “Act”) or applicable state securities laws (the “State
Acts”), and shall not be sold, pledged, hypothecated, donated, or otherwise
transferred (whether or not for consideration) by the holder except upon the issuance
to the corporation of a favorable opinion of its counsel and/or submission to the
corporation of such other evidence as may be satisfactory to counsel for the
corporation, to the effect that any such transfer shall not be in violation of the Act
and the State Acts.”


Appropriate stop transfer instructions will be issued by the Company to its transfer agent.





       (h)
I am a party to a grant agreement and a stockholder rights agreement with the Company,
pursuant to which I have agreed to certain restrictions on the transferability of the Shares and
other matters relating thereto.



Total Amount Enclosed: $                    




	 	 	 	 	 	 
	Date:
 
	 	 	 	 	 
	 	 


	 	 

(Optionee)
	 	 
	 	 
	 	 	 	 
	 	 

	 	Received by VISICU, INC. on	 	 
	 	 
	 	 	 	 
	 	 

	 	 

	 	 
	 	 

	 	By:	 	 
	 	 

	 	 

	 	 






 









 





If the Shareholder resides in community property states (currently AZ, CA, ID, LA, NV, NM, TX, WA,
WI), the Shareholder’s spouse must execute the following:




Spouse Consent




     The undersigned spouse of the Optionee has read, understands, and hereby approves the purchase
of shares of Common Stock pursuant to the Nonstatutory Incentive Stock Option Grant Agreement Under
the Visicu, Inc. Equity Incentive Plan between the Shareholder and the Company (the “Agreement”).
In consideration of the Company’s granting my spouse the right to purchase the shares as set forth
in the Agreement, the undersigned hereby agrees to be irrevocably bound by the Agreement and
further agrees that any community property interest shall similarly be bound by the Agreement. The
undersigned hereby appoints the Optionee as my attorney-in-fact with respect to any amendment or
exercise of any rights under the Agreement.



	 	 	 	 	 	 	 
	Date:

	 	 	 	Signature of Shareholder’s Spouse
	 	 
	 

	 	Address: