exv4w2



 






Exhibit 4.2




ICUSA, INC.




AMENDED AND RESTATED

STOCKHOLDER RIGHTS AGREEMENT




Dated as of June 2, 2000




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	SECTION 1 DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	SECTION 2 INFORMATION RIGHTS
	 	 	3	 
	2.1   Financial Information
	 	 	3	 
	2.2   Assignment of Rights
	 	 	3	 
	2.3   Termination
	 	 	4	 
	 
	 	 	 	 
	SECTION 3 RIGHTS OF FIRST REFUSAL ON NEW ISSUANCES
	 	 	4	 
	3.1   Rights of First Refusal
	 	 	4	 
	3.2   Termination
	 	 	5	 
	 
	 	 	 	 
	SECTION 4 REGISTRATION RIGHTS
	 	 	6	 
	4.1   Requested Registration
	 	 	6	 
	4.2   Company Registration
	 	 	8	 
	4.3   Registration on Form S-3
	 	 	9	 
	4.4   Expenses of Registration
	 	 	10	 
	4.5   Registration Procedures
	 	 	10	 
	4.6   Preparation: Reasonable Investigation
	 	 	12	 
	4.7   Indemnification
	 	 	12	 
	4.8   Information by Holder
	 	 	14	 
	4.9   Limitations on Registration of Issuer of Securities
	 	 	14	 
	4.10 Rule 144 Reporting
	 	 	15	 
	4.11 Transfer of Registration Rights
	 	 	15	 
	4.12 Termination
	 	 	15	 
	4.13 Lockup Agreement
	 	 	15	 
	 
	 	 	 	 
	SECTION 5 MISCELLANEOUS COVENANTS
	 	 	16	 
	5.1   Proprietary Information Agreement
	 	 	16	 
	5.2   Key Man Insurance
	 	 	16	 
	5.3   Changes in Common Stock or Preferred Stock
	 	 	16	 
	5.4   Employee and Other Stock Arrangements
	 	 	16	 
	5.5   Board of Directors
	 	 	16	 
	5.6   Termination
	 	 	16	 
	 
	 	 	 	 
	SECTION 6 LEGENDS
	 	 	17	 
	6.1   Legends
	 	 	17	 
	 
	 	 	 	 
	SECTION 7 MISCELLANEOUS
	 	 	17	 
	7.1   Governing Law
	 	 	17	 
	7.2   Entire Agreement: Amendment
	 	 	17	 
	7.3   Aggregation
	 	 	18	 
	7.4   Notices, etc
	 	 	18	 
	7.5   Severability
	 	 	18	 
	7.6   Counterparts
	 	 	18	 






Exhibit  A Schedule of Existing Stockholders




Exhibit  B Schedule of Purchasers





 









 








ICUSA, INC.




AMENDED AND RESTATED STOCKHOLDER RIGHTS

AND VOTING AGREEMENT




     This Amended and Restated Stockholder Rights and Voting Agreement (the “Agreement”) is made as
of the 2nd day of June 2000, by and among ICUSA, Inc., a Delaware corporation (the “Company”), the
holders of the Company’s issued and outstanding capital stock listed on the Schedule of Existing
Stockholders attached hereto as Exhibit A (collectively, the “Existing Stockholders”), and
the persons listed on the Schedule of Purchasers attached hereto as Exhibit B
(collectively, the “New Stockholders” and together with the Existing Stockholders, the
“Stockholders”).



RECITALS




     WHEREAS, the Company and the New Stockholders have entered into an agreement for the sale by
the Company and purchase by the New Stockholders of the Company’s Series B Preferred Stock of even
date herewith; and



     WHEREAS, in connection with the purchase and sale of the Company’s securities, the Company and
the Stockholders desire to provide for (i) the Stockholders’ rights to participate in new offerings
of capital stock by the Company, (ii) the rights of the Stockholders with respect to registration
of Common Stock issued upon conversion of the shares of the Company’s stock held by the
Stockholders according to the terms of this Agreement; and (iii) certain other provisions as set
forth below.



     For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:



SECTION 1




Definitions




     As used in this Agreement, the following terms shall have the following respective meanings:



          “Commission” shall mean the Securities and Exchange Commission of the United States or
any other U.S. federal agency at the time administering the Securities Act of 1933.




          “Common Stock” shall mean shares of the Company’s Common Stock.




          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, or any
similar Federal statute, and the rules and regulations of the Commission thereunder, as the same
shall be in effect at the time.




          “Holder” shall mean each of the Stockholders (and their transferees as permitted by
Section 4.10) holding Registrable Securities or securities convertible into Registrable
Securities.




 









 








          “Initiating Holders” shall mean Holders who in the aggregate hold greater than forty
percent (40%) of the Preferred taken together as a single class.




          “Other Holders” shall mean holders of Company securities, other than the Holders,
proposing to distribute their securities pursuant to a registration under Section 4 of this
Agreement.




          “Preferred” shall mean shares of the Company’s (a) Series A Preferred Stock and (b)
Series B Preferred Stock.




          “Registrable Securities” means Common Stock issued or issuable on conversion of the
Preferred and any shares of Common Stock issued or issuable in respect of such Common Stock upon
any stock split, stock dividend, recapitalization, or similar event. Shares of Common Stock or
other securities shall only be treated as Registrable Securities if they have not been sold to or
through a broker or dealer or underwriter in a public distribution or a public securities
transaction.




          The terms “register,” “registered” and “registration” refer to a
registration effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such registration
statement.




          “Registration Expenses” shall mean all expenses, except as otherwise stated below,
incurred by the Company in complying with Sections 4.1, 4.2, and 4.3 hereof, including,
without limitation, all registration, qualification and filing fees, printing expenses, escrow
fees, fees and disbursements of counsel and independent public accountants for the Company (and
fees and disbursements of one special counsel for Holders, if any), blue sky fees, transfer taxes,
fees of transfer agents and registrars and expenses and the expense of any special audits incident
to or required by any such registration (but excluding the compensation of regular employees of the
Company which shall be paid in any event by the Company).




          “Securities” shall mean Common Stock or Preferred.




          “Securities Act” shall mean the Securities Act of 1933, as amended, or any similar
United States federal statute and the rules and regulations of the Commission thereunder, all as
the same shall be in effect at the time.




          “Selling Expenses” shall mean underwriting discounts and selling commissions
applicable to the securities registered by the Holders.




          “Series A Preferred Stock” means the Company’s Series A Preferred Stock, par value
$.0001 per share.




          “Series B Preferred Stock” means the Company’s Series B Preferred Stock, par value
$.0001 per share.




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SECTION 2




Information Rights




     2.1 Financial Information. As soon as practicable after the end of each fiscal year, and
in any event within one hundred twenty (120) days thereafter, the Company will provide to each
Stockholder who owns at least 50,000 shares of Preferred (as adjusted for stock splits, reverse
stock splits, recapitalizations, dividends and the like), consolidated balance sheets of the
Company and its subsidiaries, if any, as of the end of such fiscal year, and consolidated
statements of income, stockholders’ equity and cash flows of the Company and its subsidiaries, if
any, for such year, prepared by an independent auditor of national standing and reputation in
accordance with generally accepted accounting principles and setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable detail. In addition,
the Company will provide each such Stockholder with the following reports:



          (a) As soon as practicable after the end of each month and fiscal quarter, and in any event
within thirty (30) days and forty-five (45) days, respectively, thereafter, a consolidated balance
sheet of the Company and its subsidiaries, if any, as of the end of each such period, consolidated
statements of income, consolidated statements of changes in financial condition, a consolidated
statement of cash flow of the Company and its subsidiaries and a statement of stockholders’ equity
for such period and for the current fiscal year to date, and setting forth in each case in
comparative form the figures for corresponding periods in the previous fiscal year, and setting
forth in comparative form the budgeted figures, prepared in accordance with generally accepted
accounting principles (other than for accompanying notes), subject to changes resulting from
year-end audit adjustments, all in reasonable detail and signed by the principal financial or
accounting officer of the Company.




          (b) As soon as practicable after its adoption by the Board of Directors, a copy of the annual
operating plan of the Company for the next fiscal year and an annual budget for the next fiscal
year of the Company containing profit and loss projections, cash flow projections, and capital
expenditures, all on a monthly or quarterly basis.




     2.2 Assignment of Rights. The rights granted pursuant to Section 2.1 may be
assigned or otherwise conveyed by a Stockholder to an affiliate or constituent partner of a
Stockholder or to a transferee who acquires at least 250,000 shares of Preferred (as adjusted for
stock splits, reverse stock splits, recapitalizations, dividends and the like) or all of the shares
of Preferred held by a Stockholder. Notwithstanding the foregoing, the rights granted pursuant to
Section 2.1 may not be assigned or otherwise conveyed to a competitor of the Company, as
reasonably determined by the Board of Directors of the Company excluding any director with an
interest in such transferee. The Stockholder will provide the Company with written notice of any
assignment or conveyance of the rights granted pursuant to Section 2.1.



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     2.3 Termination. The provisions of Sections 2, 3 and 5, including information
rights, rights of first refusal and miscellaneous covenants, shall terminate upon the closing of a
firmly underwritten public offering of the Common Stock of the Company with aggregate gross
proceeds to the Company, at the public offering price, of at least $20,000,000, and the provisions
of Section 3 shall not be applicable to such transaction.



SECTION 3




Rights of First Refusal On New Issuances




     3.1 Rights of First Refusal. The Company hereby grants to each Stockholder the right of
first refusal to purchase such Stockholder’s pro rata portion of New Securities (as defined in
Section 3.1(a)) that the Company may, from time to time, propose to sell and issue. Such
Stockholder’s pro rata portion, for purposes of this right of first refusal, is the ratio of the
number of shares of Common Stock held by such Stockholders (including Common Stock issuable upon
conversion of securities convertible into Common Stock of the Company held by such Stockholder,
including the Preferred) divided by the total number of shares of Common Stock outstanding at the
time of issuance of such New Securities (including Common Stock issuable upon conversion of all
outstanding securities convertible into Common Stock, including the Preferred). This right of
first refusal shall be subject to the following provisions:



          (a) “New Securities” shall mean any Common Stock of the Company, whether now authorized or
not, and any rights, options, or warrants to purchase said Common Stock, and securities of any type
whatsoever that are, or may become, convertible into Common Stock; provided, however, that “New
Securities” does not include (i) shares of Common Stock issued upon conversion of the Preferred;
(ii) securities issued pursuant to the acquisition of another corporation by the Company by merger,
purchase of substantially all of the assets, or other reorganization approved by the Board of
Directors, including the directors elected by the holders of shares of Series B Preferred Stock;
(iii) shares of the Company’s Common Stock (or related options) as approved by the Company’s Board
of Directors (as adjusted for stock splits, stock dividends or recapitalization) issued to
employees, officers, directors, consultants, or other persons performing services for the Company
(including, but not by way of limitation, distributors and sales representatives) pursuant to any
stock offering, plan, or arrangement; (iv) securities issued to financial institutions regularly
engaged in the business of lending money or providing equipment lease financing in connection with
the extension of credit to the Company for the purpose of financing equipment, inventory, or
accounts receivable or in connection with the lease of equipment and in both cases for other than
equity financing purposes; (v) securities issued to customers or potential customers of the Company
in connection with participation in a product development consortium or other corporate partner
transaction with the Company for purposes which are not primarily equity financing, which issuance
is approved by the Board of Directors, including the directors elected by the holders of shares of
Series B Preferred Stock; (vi) shares of the Company’s Common Stock issued in connection with any
stock split, stock dividend, or recapitalization by the Company; (vii) securities issued pursuant
to a technology license or strategic alliance, which issuance is approved by the Board of
Directors, including the
directors elected by the holders of shares of Series B Preferred Stock; or (viii) shares of
Common Stock offered to the public pursuant to an underwritten public offering with aggregate gross
proceeds to the Company, at the public offering price, of at least $20,000,000.




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          (b) In the event that the Company proposes to issue New Securities, it shall give each
Stockholder at least fifteen (15) days prior written notice of its intention, describing the type
of New Securities, the price, and the general terms upon which the Company proposes to issue the
same. Each Stockholder shall have fifteen (15) days from the date of mailing of any such notice
(the “Notice Period”) to agree to purchase its pro rata share of such New Securities for the price
and upon the general terms specified in the notice by giving written notice to the Company and
stating therein the quantity of New Securities to be purchased. Upon the expiration of the Notice
Period, the Company shall provide each of the Stockholders with a written notice specifying the
number of shares of such New Securities to be purchased (if any) by each Stockholder pursuant to
this Section 3.1(b) (the “Over-Allotment Notice”).




          (c) In the event that a Stockholder fails to exercise in full the right of first refusal
within said fifteen (15) day period (a “Non-Exercising Stockholder”), each of the other
Stockholders that have elected to purchase their pro rata share of such New Securities shall have
the right within five (5) days after its receipt of the Over-Allotment Notice to agree to purchase
their pro rata share of the New Securities the Non-Exercising Stockholder could have elected to
purchase for the price and upon the general terms specified in the notice by giving written notice
to the Company within five (5) days after its receipt of the Over-Allotment Notice (the “Secondary
Notice Period”) and stating therein the quantity of New Securities to be purchased.




          (d) In the event that a Non-Exercising Stockholder fails to exercise in full its right of
first refusal with respect to such New Securities and the Stockholders electing to exercise their
secondary right of first refusal under Section 3.1(c) do not exercise their rights under
Section 3.1(c) to purchase their pro rata share of such Non-Electing Stockholder’s pro rata
share of such New Securities within the Secondary Notice Period, the Company shall have
seventy-five (75) days thereafter to sell (or enter into an agreement pursuant to which the sale of
New Securities covered thereby shall be closed, if at all, within thirty (30) days from the date of
said agreement) the New Securities respecting which the Stockholder’s rights were not exercised, at
a price and upon general terms no more favorable to the purchasers thereof than specified in the
Company’s notice. In the event the Company has not sold the New Securities within said
seventy-five (75) day period (or sold and issued New Securities in accordance with the foregoing
within thirty (30) days from the date of said agreement), the Company shall not thereafter issue or
sell any New Securities, without first offering such securities to the Stockholders in the manner
provided above.




          (e) The Stockholder’s failure to exercise this right of first refusal on any issuance of New
Securities shall not adversely affect the Stockholder’s right of first refusal to purchase
subsequent issuances of New Securities.




          (f) The right of first refusal set forth in this Section 3.1 is nonassignable except
(i) to another Stockholder, or (ii) an affiliate or a constituent partner of a Stockholder, or
(iii) such assignee or transferee purchases at least 250,000 shares of Preferred or Common Stock
into which such Preferred has been converted.




     3.2 Termination. The provisions of this Section 3 shall terminate in accordance
with the provisions of Section 2.3.



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SECTION 4




Registration Rights 




     4.1 Requested Registration.



          (a) Request for Registration. If the Company shall receive from Initiating Holders a
written request that the Company effect any registration, qualification or compliance with respect
to Registrable Securities where the anticipated aggregate proceeds would exceed $4,000,000, the
Company will:




               (i) promptly give written notice of the proposed registration, qualification or compliance to
all other Holders and afford each Holder the opportunity of including in the registration such
Registrable Securities owned by such Holder; and



               (ii) as soon as practicable, use its best efforts to effect such registration, qualification
or compliance (including, without limitation, appropriate qualification under applicable blue sky
or other state securities laws and appropriate compliance with applicable regulations issued under
the Securities Act and any other governmental requirements or regulations) as may be so requested
and as would permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or such portion of the
Registrable Securities of any Holder or Holders joining in such request as are specified in a
written request received by the Company within fifteen (15) days after receipt of such written
notice from the Company;



               Provided, however, that the Company shall not be obligated to take any action to effect any
such registration, qualification or compliance pursuant to this Section 4.1:



                    (A) In any particular jurisdiction (other than New Jersey) in which the Company would be
required to execute a general consent to service of process in effecting such registration,
qualification or compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act;



                    (B) Prior to the earlier to occur of (i) six (6) months after the effective date of the
Company’s first registered public offering of its stock or (ii) three years after the date of this
Agreement;



                    (C) During the period starting with the sixty (60) days prior to the Company’s estimated date
of filing of, and ending on the date six (6) months immediately following the effective date of, a
registration statement in connection with the initial public offering of securities of the Company,
provided that the Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective;



                    (D) During the period starting with the date sixty (60) days prior to the Company’s estimated
date of filing of, and ending on the date six (6) months immediately following the effective date
of, any registration statement pertaining to securities of the Company sold by the Company (other
than a registration of securities in a Rule 145 transaction or with respect to an employee benefit
plan), provided that the Company is actively



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employing in good faith all reasonable efforts to
cause such registration statement to become effective;



                    (E) After the Company has effected two registrations pursuant to this paragraph 4.1,
and such registrations have been declared or ordered effective, provided that at least sixty
percent (60%) of Registrable Securities requested to be included in each such registration were in
fact included in the registration;



                    (F) If the Company shall furnish to such Holders a certificate signed by the President of the
Company, stating that in the good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its stockholders for a registration statement to be filed in the near
future, then the Company’s obligation to use its best efforts to register, qualify or comply under
this Section 4 shall be deferred for a period not to exceed ninety (90) days from the date of
receipt of written request from the Initiating Holders, provided, however, that the Company shall
not utilize this right more than once in any twelve (12) month period.



                    Subject to the foregoing clauses (A) through (F), the Company shall file a registration
statement covering the Registrable Securities so requested to be registered as soon as practicable
after receipt of the request or requests of the Initiating Holders.



          (b) Underwriting. In the event that a registration pursuant to Section 4.1 is
for a registered public offering involving an underwriting, the Initiating Holders will so advise
the Company as part of the written request given by such Initiating Holders pursuant to Section
4.1(a) , and the Company shall in turn advise the Holders as part of the notice given pursuant
to Section 4.1(a)(i). In such event, the right of any Holder to registration pursuant to
Section 4.1 shall be conditioned upon such Holder’s participation in the underwriting
arrangements required by this Section 4.1, and the inclusion of such Holder’s Registrable
Securities in the underwriting to the extent requested shall be limited to the extent provided
herein.




          The Company shall (together with all Holders proposing to distribute their securities through
such underwriting) enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by the Company, but subject to the reasonable approval
of a majority in interest of the Initiating Holders. Notwithstanding any other provision of this
Section 4.1, if the managing underwriter advises the Initiating Holders in writing that the
number of shares to be underwritten exceeds the number that can be sold in such offering so as to
be likely to have a material adverse effect on the price or amount at which the Initiating Holders
can sell their Shares, then the Company shall so advise all Holders and Other Holders, and the
number of shares that may be included in the registration and underwriting shall be allocated first
among all Holders in proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders at the time of filing the registration
statement and second among the Other Holders in proportion to the number of shares proposed to
be included in such registration by such Other Holders. No Registrable Securities or other
securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall
be included in such registration. To facilitate the allocation of shares in accordance with




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the
above provisions, the Company or the underwriters may round the number of shares allocated to any
holder to the nearest on hundred (100) shares.



          If any Holder of Registrable Securities or Other Holder disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to the Company, the
managing underwriter and the Initiating Holders. The Registrable Securities and/or other
securities so withdrawn shall also be withdrawn from registration.




     4.2 Company Registration.



          (a) Notice of Registration. If at any time or from time to time the Company shall
determine to register any of its securities, either for its own account or the account of a
security holder or holders, other than (i) a registration relating solely to employee benefit
plans, (ii) a registration relating solely to a Rule 145 transaction, (iii) or a registration on
any registration form that does not permit secondary sales, or (iv) the initial public offering of
the Company’s Common Stock, the Company will:




               (i) promptly give to each Holder written notice thereof; and



               (ii) include in such registration (and any related qualification under blue sky laws or other
compliance), and in any underwriting involved therein, all the Registrable Securities specified in
a written request or requests, made by any Holder within twenty (20) days after receipt of such
written notice from the Company.



          (b) Underwriting. If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so advise the Holders as a
part of the written notice given pursuant to Section 4.2(a)(i). In such event the right of
any Holder to registration pursuant to Section 4.2 shall be conditioned upon such Holder’s
participation in such underwriting and the inclusion of Registrable Securities in the underwriting
to the extent provided herein. All Holders proposing to distribute their securities through such
underwriting shall, together with the Company and the Other Holders, enter into an underwriting
agreement in customary form with the managing underwriter selected for such underwriting by the
Company. Notwithstanding any other provision of this Section 4.2, if the managing
underwriter determines that marketing factors require a limitation of the number of shares to be
underwritten, the managing underwriter may limit the number of shares of Registrable Securities to
be included in such registration without requiring any limitation in the number of shares to be
registered on behalf of the Company, provided that if such underwriting is other than an initial
public offering the number of shares of Registrable Securities held by Holders to be included in
such registration shall not be limited to less than twenty percent (20%) of the total number of
shares to be included in such registration. The Company shall so advise all Holders and Other
Holders and the number of shares that may be included in the registration and underwriting by all
Holders and Other Holders shall be allocated among them, as nearly as practicable, first,
to the Company (or, if applicable, to the holders for whose account the Company is registering the
securities), second, among the Holders of Registrable Securities in proportion to the
respective amounts of Registrable Securities held by such Holders at the time of filing of the
registration statement, and, third, among the Other Holders in proportion to the number of
shares proposed to be included in such registration by such Other Holders; provided,
however, that at all times, such




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allocation shall be subject to the twenty percent (20%)
threshold set forth in the preceding sentence if such registration and underwriting is other than
an initial public offering. To facilitate the allocation of shares in accordance with the above
provisions, the Company may round the number of shares allocated to any Holder or Other Holder to
the nearest one hundred (100) shares. If any Holder or Other Holder disapproves of the terms of
any such underwriting, such holder may elect to withdraw therefrom by written notice to the Company
and the managing underwriter. Any securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.



          (c) Right to Terminate Registration. The Company shall have the right to terminate or
withdraw any registration initiated by it under this Section 4.2 prior to the effectiveness
of such registration whether or not any Holder has elected to include Registrable Securities in
such registration.




     4.3 Registration on Form S-3.



          (a) Request for Registration. If any Holder or Holders request that the Company file
a registration statement on Form S-3 (or any successor form to Form S-3) for a public offering of
shares of the Registrable Securities held by such party the reasonably anticipated aggregate price
to the public of which would exceed $1,000,000, and the Company is a registrant entitled to use
Form S-3 to register the Registrable Securities for such an offering, the Company shall use its
best efforts to cause such Registrable Securities to be registered for the offering on such form
and to cause such Registrable Securities to be qualified in such jurisdictions as the Holder or
Holders may reasonably request. The substantive provisions of Sections 4.1(a)(i) and (ii)
and Section 4.1(b) shall be applicable to each registration initiated under this
Section 4.3.




          (b) Limitations. Notwithstanding the foregoing, the Company shall not be obligated to
take any action pursuant to this Section 4.3: (i) in any particular jurisdiction in which
the Company would be required to execute a general consent to service of process in effecting such
registration, qualification or compliance unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act; (ii) with respect to Section
4.3 only, for a period of one hundred twenty (120) days after receipt of the request of the
initiating Holders, if the Company, within ten (10) days after such receipt gives notice of its
bona fide intention to effect the filing of a registration statement with the Commission within
ninety (90) days of receipt of such request (other than with respect to a registration statement
relating to a Rule 145 transaction, an offering solely to employees or any other registration which
is not appropriate for the registration of Registrable Securities) and the Company shall promptly
notify the initiating Holders in the event it abandons its intention to effect such registration
statement; (iii) during the period starting with the date sixty (60) days prior to the Company’s
estimated date of filing of, and ending on the date six (6) months immediately following, the
effective date of any registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an employee benefit plan),
provided that the Company is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective and, provided further that the Company shall have
the right to defer filing a registration statement under the Securities Act not more than once in
any twelve month period; (iv) if the Company shall furnish to such Holder a certificate signed




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by
the President of the Company stating that in the good faith judgment of the Board of Directors it
would be seriously detrimental to the Company or the stockholders as a whole for registration
statements to be filed in the near future, then the Company’s obligation to use its best efforts to
file a registration statement shall be deferred for a period not to exceed ninety (90) days from
the receipt of the request to file such registration by such Holder, provided, however, that the
Company shall not utilize this right more than once in any twelve (12) month period; (v) more than
once in any 12-month period; or (vi) after the Company has filed three (3) registration statements
pursuant to this Section 4.3.



     4.4 Expenses of Registration.



          (a) Registration Expenses. The Company shall bear all Registration Expenses incurred
in connection with all registrations pursuant to Section 4.1, Section 4.2, and
Section 4.3, including the reasonable expenses of one counsel to the Holders participating
in any such registration.




          (b) Selling Expenses. Unless otherwise stated in Section 4.4(a), all Selling
Expenses and Registration Expenses relating to securities registered on behalf of the Holders shall
be borne by the Holders pro rata on the basis of the number of shares so registered by such Holder.




     4.5 Registration Procedures. In the case of each registration, qualification or compliance
effected by the Company pursuant to this Agreement, the Company will:



          (a) keep each Holder advised in writing as to the initiation of each registration,
qualification and compliance and as to the completion thereof;




          (b) as soon as practicable, prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such registration statement to become
and remain effective until the earlier of (i) one hundred twenty (120) days or (ii) the
distribution described in the Registration Statement has been completed; provided, however, that
(i) such 120-day period shall be extended for a period of time equal to the period the Holder
refrains from selling any securities included in such registration at the request of an underwriter
of Common Stock (or other securities) of the Company; and (ii) in the case of any registration of
Registrable Securities on Form S-3 which are intended to be offered on a continuous or delayed
basis, such 120-day period shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold, provided that Rule 145, or any successor
rule under the Securities Act, permits an offering on a continuous or delayed basis, and, provided
further, that applicable rules under the Securities Act governing the obligation to file a
post-effective amendment permit, in lieu of filing a post-effective amendment which (I) includes
any prospectus required by Section 10(a)(3) of the Securities Act or (II) reflects facts or events
representing a material or fundamental change in the information set forth
in the registration statement, the incorporation by reference of information required to be
included in (I) and (II) above to be contained in periodic reports filed pursuant to Section 13 or
15(d) of the Exchange Act in the registration statement;




          (c) furnish to the Holders participating in such registration and to the underwriters of the
securities being registered such reasonable number of copies of the




-10-









 








registration statement,
preliminary prospectus, final prospectus and such other documents as such underwriters may
reasonably request in order to facilitate the public offering of such securities;



          (d) prepare and file with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement;




          (e) in the event of an underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall also enter into and perform its
obligations under such an agreement;




          (f) notify each Holder of Registrable Securities covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in such registration statement,
as then in effect, includes an untrue statement of material fact or omits to state a material fact
required to be stated therein or necessary to make the statements made therein not misleading in
the light of the circumstances then existing;




          (g) provide a transfer agent and registrar for all Registrable Securities registered pursuant
hereunder and a CUSIP number for all such Registrable Securities, in each case not later than the
effective date of such registration;




          (h) use its best efforts to register or qualify such Registrable Securities under such other
securities or blue sky laws of such jurisdictions as any Holder reasonably requests and do any and
all other acts and things which may be necessary or advisable to enable such holder to consummate
the disposition in such jurisdictions of the Registrable Securities owned by such seller;
provided, that the Company will not be required to (i) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d),
(ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service or
process in any such jurisdiction, but the Company will be required to consent to service or process
in actions arising out of or in connection with the sale of the Registrable Securities or any
violation of state securities laws;




          (i) use its best efforts to cause the Registrable Securities covered by such registration
statement to be registered with or approved by any other governmental agencies or authorities as
may be necessary by virtue of the business and operations of the Company to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities;




          (j) use its best efforts to obtain a comfort letter from the Company’s independent public
accountants in customary form and covering such matters of the type customarily covered by comfort
letters with respect to offerings of such type as the Holders may reasonably request;




          (k) otherwise comply with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable, an




-11-









 








earnings statement
covering a period of twelve months, beginning within three months after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder; and



          (l) cause all such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed, provided that the applicable listing
requirements are satisfied.




          The Company may require each holder of Registrable Securities as to which any registration is
being effected to furnish to the Company such information regarding the distribution of such
Registrable Securities as the Company may from time to time reasonably request in writing.




     4.6 Preparation: Reasonable Investigation.



     In connection with the preparation and filing of each registration statement under the
Securities Act pursuant to this Agreement, the Company will give each Holder of Registrable
Securities, their underwriters, if any, and their respective counsel and accountants, the
opportunity to participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment, thereof or supplement thereto,
and will give each of them such access to its books and records and such opportunities to discuss
the business of the Company with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of such Holders’ and such
underwriters’ respective counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.



     4.7 Indemnification.



          (a) By Company. The Company will indemnify and hold harmless each Holder, each of its
officers and directors and partners, and each person controlling such Holder within the meaning of
Section 15 of the Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Agreement, and each underwriter, if any, and each person who
controls any underwriter within the meaning of Section 15 of the Securities Act and each
Stockholder and its officers, directors and partners and each person controlling such Stockholder
within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses,
damages or liabilities, joint or several, (or actions in respect thereof), including any of the
foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any amendment or
supplement thereto, incident to any such registration, qualification or compliance,
or based on any omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation by the Company of the Securities Act, the Exchange
Act or any state or federal securities law, or any rule or regulation promulgated under such Acts
or law applicable to the Company in connection with any such registration, qualification or
compliance, and the Company will reimburse each such Holder, each of its officers, directors and
partners, and each person controlling such Holder, each such underwriter





-12-









 








and each person who
controls any such underwriter, each Stockholder, each of its officers, directors and partners and
each person controlling such Stockholder, for any legal and any other expenses reasonably incurred
in connection with investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to any such Holder to the
extent that any such claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by an instrument duly executed by such
Holder, controlling person, underwriter or Stockholder and stated to be specifically for use
therein. If the Holders and Stockholders are represented by counsel other than counsel for the
Company, the Company will not be obligated under this Section 4.7(a) to reimburse legal
fees and expenses of more than one separate counsel for all Holders and Stockholders.



          (b) By Holders. Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such registration, qualification or compliance is being
effected, indemnify and hold harmless the Company, each of its directors, each of its officers,
each underwriter, if any, of the Company’s securities covered by such a registration statement,
each person who controls the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers and directors and each person
controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse the Company, such Holders, such
directors, officers, persons, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that such untrue statement
(or alleged untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and in conformity with
written information furnished to the Company by an instrument duly executed by such Holder and
stated to be specifically for use therein. Notwithstanding the foregoing, the liability of each
Holder under this subsection (b) shall be limited in an amount equal to the public offering price
of the Registrable Securities sold by such Holder, unless such liability arises out of or is based
on willful misconduct by such Holder.




          (c) Procedures. Each party entitled to indemnification under this Section 4.7
(the “Indemnified Party”) shall give written notice to the party required to provide
indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying
Party to assume the defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and
the Indemnified Party may participate in such defense at such party’s expense, and provided further
that the failure of any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless the failure to give such notice
is materially prejudicial to an Indemnifying Party’s ability to defend such action and




-13-









 








provided
further, that the Indemnifying Party shall not assume the defense for matters as to which there is
a conflict of interest or separate and different defenses. No Indemnifying Party, in the defense
of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation.



          (d) Contribution. If the indemnification provided for in this Section 4.7 is
held by a court of competent jurisdiction to be unavailable to an Indemnified Party or is
insufficient with respect to any loss, liability, claim, damage, or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party hereunder, shall
contribute to the amount paid or payable by such indemnified party as a result of such loss,
liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss, liability, claim, damage,
or expense as well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission to state
a material fact relates to information supplied by the indemnifying party or by the indemnified
party and the parties’ relative intent, knowledge, access to information, and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a party as a result
of any loss, liability, claim, damage or expense referred to above shall be deemed to include,
subject to the limitations set forth in Section 4.7(c), any legal or other fees, or
expenses reasonably incurred by such party in connection with any investigation or proceeding. If
indemnification is available under this Section 4.7, the indemnifying parties shall
indemnify each indemnified party to the full extent provided in Sections 4.7(a) and (b)
without regard to the relative fault of said indemnifying party or indemnified party or other
equitable consideration provided for in this Section 4.7(d).




          (e) Controlling Agreement. Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting agreement entered into
in connection with the underwritten public offering are in conflict with the foregoing provisions
of this Section 4.7, the provisions in the underwriting agreement shall control.




     4.8 Information by Holder. The Holder or Holders of Registrable Securities included in any
registration shall furnish to the Company such information regarding such Holder or Holders, the
Registrable Securities held by them and the distribution proposed by them as the Company may
request in writing and only as
shall be necessary to enable the Company to comply with the provisions hereof in connection with
any registration, qualification or compliance referred to in this Agreement.



     4.9 Limitations on Registration of Issuer of Securities. From and after the date of this
Agreement, the Company shall not, without the prior written consent of a majority in interests of
the holders of the Preferred, enter into any agreement with any holder or prospective holder of any
securities of the Company giving such holder or prospective holder any registration rights, unless
the terms of such agreement provide that such registration rights are subordinate to the
registration rights granted to the Holders hereunder.



-14-









 





     4.10 Rule 144 Reporting. With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the Registrable Securities
to the public without registration, after such time as a public market exists for the Common Stock
of the Company, the Company agrees to use its best efforts to:



          (a) Make and keep public information available, as those terms are understood and defined in
Rule 144 under the Securities Act, at all times after the effective date that the Company becomes
subject to the reporting requirements of the Securities Act or the Exchange Act.




          (b) Use its best efforts to file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act (at any time after
it has become subject to such reporting requirements);




          (c) Furnish to any Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time after 90 days after the
effective date of the first registration statement filed by the Company for an offering of its
securities to the general public), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the Company and other
information in the possession of or reasonably obtainable by the Company as such Holder may
reasonably request in availing itself of any rule or regulation of the Commission allowing such
Holder to sell any such securities without registration.




     4.11 Transfer of Registration Rights. The rights to cause the Company to register
securities granted Holders under Sections 4.1, 4.2 and 4.3 may be assigned in connection
with any transfer or assignment by a Holder of Registrable Securities provided that: (i) such
transfer may otherwise be effected in accordance with applicable securities laws, (ii) such
transfer is effected in compliance with the restrictions on transfer contained in this Agreement
and in any other agreement between the Company and the Holder, and (iii) such assignee or
transferee is an affiliate or a constituent partner of a Stockholder or purchases at least 250,000
shares of Preferred or Common Stock into which such Preferred has been converted or acquires all of
the shares of Preferred or Common Stock held by such Stockholder.



     4.12 Termination. The registration rights granted pursuant to this Section 4 shall terminate as to any Holder
at the later of (i) five years after the Company’s initial public offering or (ii) after the
effective date of the Company’s initial public offering of its stock, at such time as such Holder
may sell under Rule 144, or a successor rule, in a three month period all Registrable Securities
then held by such Holder.



     4.13 Lockup Agreement. Each Holder agrees that, if, in connection with the Company’s
initial public offering of the Company’s securities, the Company or the underwriters managing the
offering so request, the Holder shall not sell, make any short sale of, loan, grant any option for
the purchase of, or otherwise dispose of any Registrable Securities (other than those included in
the registration) without the prior written consent of the Company or such underwriters, as the
case may be, for such period of time (not to exceed one hundred eighty (180) days) from the
effective date of such registration as may be requested by the Company or the underwriters;
provided that (i) each officer and director of the Company who owns stock of the Company
also agrees to such restrictions and (ii) any discretionary waiver or termination of the



-15-









 





restrictions of any such agreement by the Company or the underwriters shall apply to the Holders on
a pro rata basis. This Section 4.13 shall be binding on all transferees or assignees of
Registrable Securities, whether or not such persons are entitled to registration rights pursuant to
Section 4.11.



SECTION 5




Miscellaneous Covenants




     5.1 Proprietary Information Agreement. Unless otherwise determined by Board of Directors,
the Company shall require all officers and key employees of the Company and its subsidiaries, if
any, to execute a proprietary information agreement providing for the protection of the Company’s
proprietary or confidential information and the assignment of intellectual property rights to the
Company.



     5.2 Key Man Insurance. The Company shall, as soon as practicable hereafter, obtain key man
insurance in the amount of $2,000,000 for each of Dr. Michael Breslow, Robert P. Pfotenhauer and
Dr. Brian Rosenfeld, with the proceeds payable to the Company.



     5.3 Changes in Common Stock or Preferred Stock. If, and as often as, there is any change
in the Common Stock or the Preferred by way of a stock split, stock dividend, combination or
reclassification, or through a merger, consolidation, reorganization or recapitalization, or by any
other means, appropriate adjustment shall be made in the provisions hereof so that the rights and
privileges granted hereby shall continue with respect to the Common Stock or the Preferred as so
changed.



     5.4 Employee and Other Stock Arrangements. Each acquisition of any shares of capital stock
of the Company or any option or right to acquire any shares of capital stock of the Company by an
employee, officer or director of the Company
will be conditioned upon (a) the approval of the Board of Directors of the Company and (b) the
execution and delivery by the Company and such employee, officer or director of an agreement
substantially in a form approved by the Board of Directors of the Company. Any options granted to
employees, directors and officers pursuant to a stock option plan adopted by the Company shall
provide for vesting no faster than ratably over four years (4) commencing on the grant of the
option, provided no such options shall vest until the completion of one year of service.



     5.5 Board of Directors. The Company shall take all appropriate actions to fix and maintain
a Board of Directors of no more than seven directors. Directors shall be elected to the Board of
Directors as provided in (i) Section 3 of Article IV of the Restated Certificate of Incorporation
of the Company and (ii) Section 7 of the Amended and Restated Right of First Refusal,
Co-Sale and Voting Agreement, of even date herewith, among the Company and the Shareholders named
as such therein. The Company further agrees to reimburse all non-employee directors for reasonable
out-of-pocket costs incurred in connection with their membership on the Board of Directors.



     5.6 Termination. The provisions of this Section 5 shall terminate in accordance
with the provisions of Section 2.3.



-16-









 





SECTION 6




Legends




     6.1 Legends. Each Stockholder understands that the share certificates evidencing any
Registrable Securities shall be endorsed with legends in substantially the following form (in
addition to any legends required under applicable state securities laws):



          (a) “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR
APPLICABLE STATE LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.”




          (b) “THE SALE, TRANSFER OR ASSIGNMENT OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS OF AN AMENDED AND RESTATED STOCKHOLDER RIGHTS AGREEMENT BETWEEN THE COMPANY
AND THE REGISTERED HOLDER OR HIS PREDECESSOR IN INTEREST. COPIES OF SUCH AGREEMENT MAY BE OBTAINED
BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE
COMPANY.




          (c) Any legend required to be placed thereon by the Delaware Commissioner of Corporations or
any other applicable state securities laws.




SECTION 7




Miscellaneous




     7.1 Governing Law. This Agreement shall be governed in all respects by the laws of the
State of Delaware as applied to contracts made and to be fully performed entirely within that state
between residents of that state.



     7.2 Entire Agreement; Amendment. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects hereof and thereof.
This Agreement or any term hereof may be amended, waived, discharged or terminated by a written
instrument signed by the Company and the Holders, or transferees of such Holders, holding more than
a majority of the Registrable Securities; provided, however, that no such amendment
may treat any Holder in a manner different from the other Holders. Notwithstanding the foregoing,
additional holders of Preferred may be added as Stockholders under this Agreement without an
amendment to this Agreement upon execution and delivery by such holder of Preferred of a Joinder
Agreement substantially in the form of Exhibit C attached hereto. In the event any such
holder of Preferred is added as a party to this Agreement, the Company shall revise Exhibit
B accordingly, which version shall not constitute an amendment hereunder.



-17-









 





     7.3 Aggregation. For the purposes of determining the number of shares of Registrable
Securities held by a transferee or assignee, the holdings of transferees and assignees of a
partnership who are partners or retired partners of such partnership (including spouses and
ancestors, lineal descendants and siblings of such partners or spouses who acquire Registrable
Securities by gift, will or intestate succession) shall be aggregated together and with the
partnership; provided, that all assignees and transferees who would not qualify individually for
assignment of registration rights shall have a single attorney-in-fact for the purpose of
exercising any rights, receiving notices or taking any action under Sections 2 and 4.



     7.4 Notices, etc. All notices and other communications required or permitted hereunder
shall be deemed given if in writing and mailed by registered or certified mail, postage prepaid, or
otherwise delivered by hand or by messenger, addressed (a) if to a Holder, at such Holder’s address
as set forth on Exhibit A or Exhibit B, as the case may be, to this Agreement, or
at such other address as such Holder shall have furnished to the Company in writing, or (b) if to
any other holder of any Registrable Securities, at such address as such holder shall have furnished
the Company in writing, or, until any such holder so furnishes an address to the Company, then to
and at the address of the last holder of such Registrable Securities who has so furnished an
address to the Company, or (c) if to the Company, at the address of its principal offices and
addressed to the attention of the Corporate Secretary and with a copy to Hogan & Hartson L.L.P.,
555 13th Street, N.W., Washington, D.C. 20004, Attention: Michael C. Williams, or at such other
address as the Company shall have furnished to the Holders.



     7.5 Severability. In the event that any provision of this Agreement becomes or is declared
by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall
continue in full force and effect without said provision; provided that no such severability shall
be effective if it materially changes the economic benefit of this Agreement to any party.



     7.6 Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be enforceable against the parties actually executing such counterparts, and all of
which together shall constitute one instrument.



[SIGNATURE PAGE FOLLOWS]




-18-









 








     IN WITNESS, WHEREOF, the foregoing Amended and Restated Stockholder Rights Agreement is hereby
executed as of the date first above written.



	 	 	 	 	 	 	 
	 	 	THE COMPANY:	 	 
	 
	 	 	 	 	 	 
	 	 	ICUSA, INC.	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Robert P. Pfotenhauer	 	 
	 	 	 	 	 
	 

	 	By:
	 	Robert P. Pfotenhauer	 	 
	 

	 	Title:
	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	STOCKHOLDERS:	 	 
	 
	 	 	 	 	 	 
	 	 	Cardinal Health Partners, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Cardinal Health Partners Management, L.L.C., its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John Clarke	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	John Clarke	 	 
	 

	 	Title:
	 	Managing Member	 	 
	 
	 	 	 	 	 	 
	 	 	Abell Foundation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert Embry Jr.	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert Embry Jr.	 	 
	 

	 	Title:
	 	President	 	 






-19-









 






	 	 	 	 	 
	 

	 	/s/ Anne DeGheest
	 	 
	 

	 	 	 	 
	 

	 	Anne DeGheest	 	 
	 
	 	 	 	 
	 

	 	/s/ Guy Miller	 	 
	 

	 	 	 	 
	 

	 	Guy Miller	 	 
	 
	 	 	 	 
	 

	 	/s/ James A. Oakey	 	 
	 

	 	 	 	 
	 

	 	James A. Oakey	 	 
	 
	 	 	 	 
	 

	 	/s/ Michael J. Schwartz	 	 
	 

	 	 	 	 
	 

	 	Michael J. Schwartz	 	 
	 
	 	 	 	 
	 

	 	/s/ Nancy Adler	 	 
	 

	 	 	 	 
	 

	 	Nancy Adler	 	 






-20-









 






	 	 	 	 	 	 	 
	 	 	Pacific Venture Group II L.P.	 	 
	 
	 	 	 	 	 	 
	 	 	By: PVG Equity Partners II, L.L.C.,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ralph Sabin	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Ralph Sabin	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	PVG Associates II, LP.	 	 
	 
	 	 	 	 	 	 
	 	 	By: PVG Equity Partners II, L.L.C.,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ralph Sabin	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Ralph Sabin	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	Partech US. Partners IV, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Thomas G. McKinley	 	 
	 

	 	Title:
	 	Partner	 	 
	 
	 	 	 	 	 	 
	 	 	Double: Black Diamond II	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Thomas G. McKinley	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Thomas G. McKinley	 	 
	 

	 	Title:
	 	Partner	 	 
	 
	 	 	 	 	 	 
	 	 	45th Parallel	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Thomas G. McKinley	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Thomas G. McKinley	 	 
	 

	 	Title:
	 	Partner	 	 
	 
	 	 	 	 	 	 
	 	 	MDV LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Thomas G. McKinley	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Thomas G. McKinley	 	 
	 

	 	Title:
	 	Attorney-in-fact	 	 






-21-









 






	 	 	 	 	 	 	 
	 	 	Multinvest LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Thomas G. McKinley	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Thomas G. McKinley	 	 
	 

	 	Title:
	 	Partner	 	 






-22-









 






	 	 	 	 	 	 	 
	 	 	HLM Investment Partners, L.L.C.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ A.R. HaberKorn	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	A.R. HaberKorn	 	 
	 

	 	Title:
	 	Manager	 	 






-23-









 






EXHIBIT A




SCHEDULE OF EXISTING STOCKHOLDERS




Cardinal Health Partners, L.P.

221 Nassau Street

Princeton, NJ 08542

Attn: John Clarke




Abell Foundation

111 South Calvert Street, Suite 2300

Baltimore, Maryland 21202

Attn: Nora Zietz




Anne DeGheest

MedStars

12133 Foothill Lane

Los Altos, CA 94022




Guy Miller

801 Church Street, #1319

Mountain View, CA 94041




James A. Oakey

121 Swarthmore Drive

Towson, MD 21204




Michael J. Schwartz

CSC Health Care Consulting

One Embarcadero Center, Suite 2800

San Francisco, CA 94111




Nancy Adler

2750 Broadway

San Francisco, CA 94115




-24-









 





EXHIBIT B




SCHEDULE OF PURCHASERS




Pacific Venture Group II, L.P.

15635 Alton Parkway

Suite 230

Irvine, CA 92618




PVG Associates II, LP

15635 Alton Parkway

Suite 230

Irvine, CA 92618




Partech U.S. Partners IV, LLC

50 California Street

Suite 3200

San Francisco, CA 94111




Double Black Diamond II

50 California Street

Suite 3200

San Francisco, CA 94111




45th Parallel

50 California Street

Suite 3200

San Francisco, CA 94111




MDV LLC

50 California Street

Suite 3200

San Francisco, CA 94111




Multinvest LLC

50 California Street

Suite 3200

San Francisco, CA 94111




Cardinal Health Partners, L.P.

221 Nassau Street

Princeton, NJ 08542




Abell Foundation

111 South Calvert St

Suite 2300

Baltimore, MD 21202




-25-









 





HLM Investment Partners, L.L.C.

c/o HLM Management

222 Berkeley Street, 21st Floor

Boston, MA 02116




-26-









 





EXHIBIT C




FORM OF JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 (the “Stockholder Agreement”), by and among
ICUSA, Inc., a Delaware corporation, and the Stockholders named as such therein. Capitalized terms
used but not defined herein shall have the meanings given such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ENTITY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:
	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	-OR-	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[Signature of Individual]
	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Print Name
	 	 
	 
	 	 	 	 	 	 
	 	 	Address:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Telephone:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Facsimile:
	 	 	 	 
	 

	 	 	 	 	 	 





-27-









 






JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 (the “Stockholder Agreement”), by and among
ICUSA, Inc., a Delaware corporation, and the Stockholders named as such therein. Capitalized terms
used but not defined herein shall have the meanings given such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




	 	 	 	 	 	 	 	 	 
	Date: October 3, 2000
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Sterling Venture Partners, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Sterling Venture Partners, L.L.C. is general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ R. Alan Macksey, Jr.	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	R. Alan Macksey, Jr.	 	 
	 

	 	 	 	Title:
	 	Principal	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Address:

111 South Calvert Street

Suite 2810

Baltimore, MD 21202

Attn: R. Alan Macksey, Jr.

Telephone: (410) 347-2900

Facsimile: (410) 347-3140	 	 






 









 






JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 (the “Stockholder Agreement”), by and among
ICUSA, Inc., a Delaware corporation, and the Stockholders named as such therein. Capitalized terms
used but not defined herein shall have the meanings given such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




	 	 	 	 	 	 	 
	Date: October 3, 2000
	 	 	 	 	 	 
	 	 	Pacific Life Insurance Co.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Peter S. Fiek	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Peter S. Fiek	 	 
	 

	 	Title
	 	Assistant Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Audrey L. Milfs	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Audrey L. Milfs	 	 
	 

	 	Title
	 	Corporate Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	Address:

700 Newport Center Drive

Newport Beach, CA 92660-6397

Attn: Ronn Cornelius	 	 
	 
	 	 	 	 	 	 
	 

	 	Telephone:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Facsimile:
	 	 	 	 
	 

	 	 	 	 	 	 






 










 






JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 (the “Stockholder Agreement”), by and among
ICUSA, Inc., a Delaware corporation, and the Stockholders named as such therein. Capitalized terms
used but not defined herein shall have the meanings given such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will he deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




Date: October 3, 2000




	 	 	 	 	 
	 	 	Pacific Life & Annuity Company
	 
	 	 	 	 
	 

	 	By:
	 	          /s/ Peter S. Fiek
	 

	 	 	 	 
	 

	 	Name:
	 	Peter S. Fiek
	 

	 	 	 	 
	 

	 	Title
	 	Assistant Vice President
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	By:
	 	          /s/ Audrey L. Milfs
	 

	 	 	 	 
	 

	 	Name:
	 	Audrey L. Milfs
	 

	 	 	 	 
	 

	 	Title
	 	Corporate Secretary
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Address:
	 	 	700 Newport Center Drive
	 	 	Newport Beach, CA 92660-6397
	 	 	Attn: Ronn Cornelius
	 

	 	Telephone:	 	 
	 

	 	 	 	 
	 

	 	Facsimile:	 	 
	 

	 	 	 	 






 









 








JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 (the “Stockholder Agreement”), by and among
ICUSA, Inc., a Delaware corporation, and the Stockholders named as such therein. Capitalized terms
used but not defined herein shall have the meanings given such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




Date: October 3, 2000




	 	 	 	 	 
	 	 	Envest Ventures I, L.L.C.
	 
	 	 	 	 
	 

	 	By:
	 	          /s/ David L. Kaufman
	 

	 	 	 	 
	 

	 	Name:
	 	David L. Kaufman
	 

	 	 	 	 
	 

	 	Title
	 	Sr. Managing Partner
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Address:
	 	 	2101 Parks Avenue
	 	 	Suite 401
	 	 	Virginia Beach, VA 23451
	 	 	Attn: David L. Kaufman
	 	 	Telephone: (757) 437-3000
	 	 	Facsimile: (757) 437-3884







 









 








JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 (the “Stockholder Agreement”), by and among
ICUSA. Inc., a Delaware corporation, and the Stockholders named as such therein. Capitalized terms
used but not defined herein shall have the meanings given such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




Date: October 3, 2000




	 	 	 	 	 
	 	 	Sentara Healthcare, Inc.
	 
	 	 	 	 
	 

	 	By:
	 	          /s/ Mark Gavens
	 

	 	 	 	 
	 

	 	Name:
	 	Mark Gavens
	 

	 	 	 	 
	 

	 	Title
	 	President, SSH
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Address:
	 	 	6015 Poplar Hall Drive
	 	 	Suite 308
	 	 	Norfolk, VA 23502
	 	 	Attn: Robert Broermann
	 

	 	Telephone:	 	 
	 

	 	 	 	 
	 

	 	Facsimile:	 	 
	 

	 	 	 	 






 









 








JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2. 2000 (the “Stockholder Agreement”), by and among
ICUSA, Inc., a Delaware corporation, and the Stockholders named as such therein. Capitalized terms
used but not defined herein shall have the meanings given such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




Date: October 3, 2000




	 	 	 
	 

	 	David Kremer and Marla Miller,
	 

	 	husband and wife
	 
	 	 
	 

	 	          /s/ David Kremer
	 

	 	 
	 

	 	David Kremer
	 

	 	          /s/ Marla Miller
	 

	 	 
	 

	 	Marla Miller
	 
	 	 
	 

	 	Address:
	 

	 	18 Sixth Avenue
	 

	 	San Francisco, CA 94111
	 

	 	Telephone: (415) 752-6449
	 

	 	Facsimile: (415) 752-6449







 









 








JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 (the “Stockholder Agreement”), by and among
ICUSA, Inc., a Delaware corporation, and the Stockholders named as such therein. Capitalized terms
used but not defined herein shall have the meanings given such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




Date: October 3, 2000




	 	 	 
	 

	 	          /s/ Thomas J. Laird
	 

	 	 
	 

	 	Thomas J. Laird
	 
	 	 
	 

	 	Address:
	 

	 	24950 Paseo Del Rancho
	 

	 	Calabas, CA 91302
	 

	 	Telephone: (310) 712-4022
	 

	 	Facsimile: (310) 712-4023







 









 








JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 (the “Stockholder Agreement”), by and among
ICUSA, Inc., a Delaware corporation, and the Stockholders named as such therein. Capitalized terms
used but not defined herein shall have the meanings given such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




Date: October 3, 2000




	 	 	 	 	 
	 	 	          /s/ Samuel M. Rosenfeld
	 	 	 
	 	 	Samuel M. Rosenfeld
	 
	 	 	 	 
	 	 	Address:
	 	 	443 North Rose Lane
	 	 	Haverford, PA 19041
	 

	 	Telephone:	 	 
	 

	 	 	 	 
	 

	 	Facsimile:	 	 
	 

	 	 	 	 






 









 








JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 (the “Stockholder Agreement”), by and among
ICUSA, Inc., a Delaware corporation, and the Stockholders named as such therein. Capitalized terms
used but not defined herein shall have the meanings given such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




Date: October 3, 2000




	 	 	 
	 

	 	          /s/ Maida R. Milone
	 

	 	 
	 

	 	Maida R. Milone
	 
	 	 
	 

	 	Address:
	 

	 	912 Fields Lane
	 

	 	Villanova, PA 19805
	 

	 	Telephone: (610) 520-0484
	 

	 	Facsimile: (610) 520-0691







 









 








JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 (the “Stockholder Agreement”), by and among
ICUSA, Inc., a Delaware corporation, and the Stockholders named as such therein. Capitalized terms
used but not defined herein shall have the meanings given such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




Date: October ____, 2000




	 	 	 	 	 
	 	 	          /s/ Alex S. Evers, M.D.
	 	 	 
	 

	 	Alex S. Evers, M.D.

	 
	 	 	 	 
	 	 	Address:
	 	 	661 West Polo Drive
	 	 	Clayton, MO 63105
	 	 	Telephone: (314) 454-8702
	 

	 	Facsimile:	 	 
	 

	 	 	 	 






 









 








JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 (the “Stockholder Agreement”), by and among
ICUSA, Inc., a Delaware corporation, and the Stockholders named as such therein. Capitalized terms
used but not defined herein shall have the meanings given such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




Date: October 3, 2000




	 	 	 	 	 
	 	 	Hogan & Hartson LLP
	 
	 	 	 	 
	 

	 	By:
	 	           /s/ Prentiss E. Feagles
	 

	 	 	 	 
	 

	 	Name:
	 	Prentiss E. Feagles
	 

	 	 	 	 
	 

	 	Title
	 	General Partner
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Address:
	 	 	555 13th Street, NW
	 	 	Washington, DC 20004
	 	 	Attn: Michael C. Williams
	 	 	Telephone: (202) 637-5600
	 	 	Facsimile: (202) 637-5910







 









 








JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 (the “Stockholder Agreement”), by and among
ICUSA, Inc., a Delaware corporation, and the Stockholders named as such therein. Capitalized terms
used but not defined herein shall have the meanings given such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




Date: October 2, 2000




	 	 	 	 	 
	 	 	Atwell, Curtis & Brooks, Ltd.
	 
	 

	 	By:
	 	          /s/Arlene M. Angelilli
	 

	 	 	 	 
	 

	 	Name:
	 	Arlene M. Angelilli
	 

	 	 	 	 
	 

	 	Title
	 	President
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Address:
	 	 	204 Stonehinge Lane
	 	 	P.O. Box 363
	 	 	Carle Place, NY 11514
	 	 	Attn: Arlene M. Angelilli
	 	 	Telephone: (516) 622-9030
	 	 	Facsimile: (516) 622-9040






 









 






FIRST AMENDMENT

TO

AMENDED AND RESTATED

STOCKHOLDER RIGHTS AGREEMENT




     THIS FIRST AMENDMENT TO AMENDED AND RESTATED STOCKHOLDER RIGHTS AGREEMENT (this “Amendment”)
is dated as of January 14, 2002, by and among (i) Visicu, Inc. (formerly known as ICUSA, Inc.), a
Delaware corporation (the “Company”), (ii) each of the new purchasers listed on Exhibit A
attached hereto and made a part hereof (each a “New Stockholder” and collectively, the “New
Stockholders”), (iii) the “Series A Stockholders” listed on Exhibit A, and (iv) the “Series
B Stockholders” listed on Exhibit A. The New Stockholders, Series A Stockholders and
Series B Stockholders are collectively referred to as the “Preferred Stockholders.”



Recitals




     A. In connection with the transactions contemplated by the Series B Preferred Stock Purchase
Agreement dated May 31, 2000, by and among the Company and each of the investors listed on Schedule
A thereto, the Company, the Series A Stockholders, and the Series B Stockholders entered into an
Amended and Restated Stockholder Rights Agreement dated June 2, 2000 (the “Stockholder Rights
Agreement”).



     B. Pursuant to the Series C Preferred Stock Purchase Agreement of even date herewith (the
“Series C Purchase Agreement”), the New Stockholders and certain other Preferred Stockholders
(“Series C Purchasers”) have agreed to purchase from the Company, and the Company has agreed to
sell to such purchasers, shares of its Series C Preferred Stock, par value $.0001 per share
(“Series C Preferred Stock”) at the Closing (as that term is defined in the Series C Purchase
Agreement), upon the terms and conditions set forth in the Series C Purchase Agreement.



     C. The Company and the Preferred Stockholders desire to amend the Stockholder Rights Agreement
in order to reflect the issuance of the Series C Preferred Stock to the Series C Purchasers and to
subject the holders of the Series C Preferred Stock to the restrictions contained in the
Stockholder Rights Agreement.



     NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:



     1. Recitals; Defined Terms. The Recitals set forth above are true and correct in all
material respects and are hereby incorporated into this Amendment by reference. Capitalized terms
used in this Amendment but not otherwise defined herein shall have the respective meanings given to
such terms in the Stockholder Rights Agreement.



     2. Definition of “Preferred”. The definition of “Preferred” set forth in Section 1 of
the Stockholder Rights Agreement is hereby amended and restated in its entirety as follows:



 









 






“Preferred” shall mean shares of the Company’s (a) Series A
Preferred Stock, (b) Series B Preferred Stock and (c) Series C
Preferred Stock.



     3. Definition of “Series C Preferred Stock”. Section 1 of the Stockholder Rights
Agreement is amended to add the following defined term:




“Series C Preferred Stock” means the Company’s Series C
Preferred Stock, par value $.0001 per share.



     4. New Securities. Section 3.1(a) of the Stockholder Rights Agreement is hereby
amended and restated in its entirety to read as follows:




(a) “New Securities” shall mean any Common Stock of the Company,
whether now authorized or not, and any rights, options, or warrants
to purchase said Common Stock, and securities of any type whatsoever
that are, or may become, convertible into Common Stock; provided,
however, that “New Securities” does not include (i) shares of Common
Stock issued upon conversion of the Preferred; (ii) securities
issued pursuant to the acquisition of another corporation by the
Company by merger, purchase of substantially all of the assets, or
other reorganization approved by the Board of Directors, including
the directors elected by the holders of shares of Series C Preferred
Stock; (iii) shares of the Company’s Common Stock (or related
options) as approved by the Company’s Board of Directors (as
adjusted for stock splits, stock dividends or recapitalization)
issued to employees, officers, directors, consultants, or other
persons performing services for the Company (including, but not by
way of limitation, distributors and sales representatives) pursuant
to any stock offering, plan, or arrangement; (iv) securities issued
to financial institutions regularly engaged in the business of
lending money or providing equipment lease financing in connection
with the extension of credit to the Company for the purpose of
financing equipment, inventory, or accounts receivable or in
connection with the lease of equipment and in both cases for other
than equity financing purposes; (v) securities issued to customers
or potential customers of the Company in connection with
participation in a product development consortium or other corporate
partner transaction with the Company for purposes which are not
primarily equity financing, which issuance is approved by the Board
of Directors, including the directors elected by the holders of
            shares of Series C Preferred Stock; (vi) shares of the Company’s
Common Stock issued in connection with any stock split, stock
dividend, or recapitalization by the Company; (vii) securities
issued pursuant to a technology license or strategic alliance, which
issuance is approved by the Board of Directors, including the
directors elected



- 2 -









 






by the holders of shares of Series C Preferred Stock; (viii) shares
of Common Stock offered to the public pursuant to an underwritten
public offering with aggregate gross proceeds to the Company, at the
public offering price, of at least $20,000,000; or (ix) shares of
Series C Preferred Stock issued upon exchange of Series A Preferred
Stock and/or Series B Preferred Stock under the Series C Preferred
Stock Purchase Agreement.



     5. Section 4.7(b) of the Stockholder Rights Agreement. The first sentence of Section
4.7(b) of the Stockholder Rights Agreement is hereby amended by adding the underlined language as
follows, “Each Holder will, severally and not jointly, ....” The last sentence of Section
4.7(b) is hereby amended by adding the underlined language as follows, “Notwithstanding the
foregoing, the liability of each Holder under this subsection (b) shall be limited in an amount
equal to the net proceeds of the public offering price ....”



     6. Section 4.7(d) of the Stockholder Rights Agreement. Section 4.7(d) of the
Stockholder Rights Agreement is hereby amended by adding to the end of the Section the following
sentence, “Notwithstanding the foregoing, the liability of each Holder under this subsection (d)
shall be limited in an amount equal to the net proceeds of the public offering price of the
Registrable Securities sold by such Holder, unless such liability arises out of or is based on
willful misconduct by such Holder.”



     7. Exhibit B to Stockholder Rights Agreement. Exhibit B to the Stockholder Rights
Agreement is hereby amended and restated in the form attached hereto as Exhibit B to
reflect the consummation of the sale of Series C Preferred Stock to the Series C Purchasers at the
Closing (as defined in the Series C Purchase Agreement).



     8. Joinder. Each of the Series C Purchasers is hereby made a party to the Stockholder
Rights Agreement and shall have all of the rights and obligations of a Stockholder thereunder, and
each Series C Purchaser agrees to be bound by all of the terms and conditions of the Stockholder
Rights Agreement, as amended hereby.



     9. No Other Amendments. Except as specifically amended by this Amendment, the terms
of the Stockholder Rights Agreement shall remain unmodified and continue in full force and effect,
shall continue to be binding on the Company and is in all respects ratified and confirmed hereby.



     10. Counterparts. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute but one and the same
instrument.



     11. Governing Law. This Amendment shall be governed by and construed in accordance
with the internal laws of the State of Maryland, without giving effect to its conflicts of laws
provisions.



     12. Entire Agreement; Amendment; Waiver. The Stockholder Rights Agreement, as amended
by this Amendment, sets forth the entire agreement and understanding of the parties hereto with
respect to the matters contemplated by the Stockholder Rights Agreement and this



- 3 -









 




Amendment, and supersedes all prior agreements and understandings (whether oral or written)
relating to the subject matter thereof. No provision of this Amendment may be amended, waived,
discharged, or terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge, or termination is sought.




[Signatures Begin On The Following Page]





- 4 -










 






     IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Amendment as
of the date first above written.



	 	 	 	 	 
	 	 	“COMPANY”
	 
	 	 	 	 
	 	 	VISICU, INC.
	 
	 	 	 	 
	 

	 	By:
	 	     /s/ Frank T. Sample
	 

	 	 	 	 
	 

	 	Name:
	 	Frank T. Sample
	 

	 	 	 	 
	 

	 	Title
	 	President and CEO
	 

	 	 	 	 
	 

	 	Address:
	 	2400 Boston Street
	 

	 	 	 	Suite 302
	 

	 	 	 	Baltimore, MD 21224






	 	 	 	 	 
	 	 	“PREFERRED STOCKHOLDERS”
	 
	 	 	 	 
	 	 	Cardinal Health Partners, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	Cardinal Health Partners Management,
	 

	 	 	 	L.L.C., its general partner






	 	 	 	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	John Clarke
	 

	 	 	 	 	 	Managing Member
	 

	 	Address:
	 	221 Nassau Street
	 

	 	 	 	 	 	Princeton, NJ 08542
	 

	 	3,000,000	 	Shares of Series A Preferred Stock
	 

	 	729,927 
	 	Shares of Series B Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 






	 	 	 	 	 	 	 
	 	 	Abell Foundation
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert C. Embry, Jr.
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert C. Embry, Jr.
	 

	 	 	 	 	 	 
	 

	 	Title:
	 	President
	 

	 	 	 	 	 	 
	 

	 	Address:
	 	111 South Calvert Street
	 

	 	 	 	 	 	Suite 2300
	 

	 	 	 	 	 	Baltimore, MD 21202
	 

	 	250,000	 	Shares of Series A Preferred Stock
	 

	 	729,927	 	Shares of Series B Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 






Signature Page to First Amendment to Amended and Restated Stockholder Rights Agreement




 









 








	 	 	 	 	 	 	 
	 	 	 
	 	 	Anne DeGheest
	 

	 	Address:
	 	12133 Foothill Lane
	 

	 	 	 	 	 	Los Altos, CA 94022
	 

	 	25,000	 	Shares of Series A Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 






	 	 	 	 	 	 	 
	 	 	 
	 	 	Guy Miller
	 

	 	Address:
	 	801 Church St, #1319
	 

	 	 	 	 	 	Mount View, CA 94041
	 

	 	25,000	 	Shares of Series A Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 






	 	 	 	 	 	 	 
	 	 	     /s/ James Oakey
	 	 	 
	 	 	James Oakey
	 

	 	Address:
	 	121 Swarthmore Dr
	 

	 	 	 	 	 	Towson, MD 21204
	 

	 	50,000	 	Shares of Series A Preferred Stock
	 

	 	12,750	 	Shares of Series C Preferred Stock






	 	 	 	 	 	 	 
	 	 	 
	 	 	Michael J. Schwartz
	 

	 	Address:
	 	c/o CSC Health Care Consulting
	 

	 	 	 	 	 	One Embarcadero Center
	 

	 	 	 	 	 	Suite 2800
	 

	 	 	 	 	 	San Francisco, CA 94111
	 

	 	5,000	 	Shares of Series A Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 






	 	 	 	 	 	 	 
	 	 	     /s/ Nancy Adler
	 	 	 
	 	 	Nancy Adler
	 

	 	Address:
	 	2750 Broadway
	 

	 	 	 	 	 	San Francisco, CA 94115
	 

	 	25,000	 	Shares of Series A Preferred Stock
	 

	 	3,148	 	Shares of Series C Preferred Stock






Signature Page to First Amendment to Amended and Restated Stockholder Rights Agreement




 









 








	 	 	 	 	 	 	 
	 	 	Pacific Venture Group II, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	PVG Equity Partners II, L.L.C.,
	 

	 	 	 	 	 	its general partner
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Ralph Sabin
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Ralph Sabin
	 

	 	Title
	 	Managing Director
	 

	 	Address:
	 	114 Pacifica, Suite 270
	 

	 	 	 	 	 	Irvine, CA 92618
	 

	 	2,125,288	 	Shares of Series B Preferred Stock
	 

	 	354,215	 	Shares of Series C Preferred Stock
	 
	 	 	 	 	 	 
	 	 	PVG Associates II, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	PVG Equity Partners II, L.L.C., its general
	 

	 	 	 	 	 	partner
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 /s/ Ralph Sabin
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Ralph Sabin
	 

	 	Title
	 	Managing Director
	 

	 	Address:
	 	114 Pacifica, Suite 270
	 

	 	 	 	 	 	Irvine, CA 92618
	 

	 	64,493	 	 	Shares of Series B Preferred Stock
	 

	 	10,749	 	 	Shares of Series C Preferred Stock
	 
	 	 	 	 	 	 
	 	 	Partech U.S. Partners IV, LLC
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Thomas G. McKinley
	 

	 	Title
	 	Partner
	 

	 	Address:
	 	50 California Street, Suite 3200
	 

	 	 	 	 	 	San Francisco, CA 94111
	 

	 	2,554,745	 	 	Shares of Series B Preferred Stock
	 

	 	260,069	 	 	Shares of Series C Preferred Stock






Signature Page to First Amendment to Amended and Restated Stockholder Rights Agreement




 









 








	 	 	 	 	 	 	 
	 	 	Pacific Venture Group II, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	PVG Equity Partners II, L.L.C.,
	 

	 	 	 	 	 	its general partner
	 

	 	By:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Ralph Sabin
	 

	 	Title
	 	Managing Director
	 

	 	Address:
	 	114 Pacifica, Suite 270
	 

	 	 	 	 	 	Irvine, CA 92618
	 

	 	2,125,288	 	 	Shares of Series B Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	PVG Associates II, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	PVG Equity Partners II, L.L.C., its general
	 

	 	 	 	 	 	partner
	 

	 	By:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Ralph Sabin
	 

	 	Title
	 	Managing Director
	 

	 	Address:
	 	114 Pacifica, Suite 270
	 

	 	 	 	 	 	Irvine, CA 92618
	 

	 	64,493	 	 	Shares of Series B Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	Partech U.S. Partners IV, LLC
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Vincent Worms
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Vincent Worms
	 

	 	Title
	 	Managing Member
	 

	 	Address:
	 	50 California Street, Suite 3200
	 

	 	 	 	 	 	San Francisco, CA 94111
	 

	 	2,554,745	 	 	Shares of Series B Preferred Stock
	 

	 	260,069	 	 	Shares of Series C Preferred Stock






Signature Page to First Amendment to Amended and Restated Stockholder Rights Agreement





 









 








	 	 	 	 	 	 	 
	 	 	Double Black Diamond II
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Vincent Worms
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Vincent Worms
	 

	 	Title
	 	Managing Member
	 

	 	Address:
	 	50 California Street, Suite 3200
	 

	 	 	 	 	 	San Francisco, CA 94111
	 

	 	109,489	 	 	Shares of Series B Preferred Stock
	 

	 	11,146	 	 	Shares of Series C Preferred Stock
	 
	 	 	 	 	 	 
	 	 	45th Parallel
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Vincent Worms
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Vincent Worms
	 

	 	Title
	 	Managing Member
	 

	 	Address:
	 	50 California Street, Suite 3200
	 

	 	 	 	 	 	San Francisco, CA 94111
	 

	 	72,993	 	 	Shares of Series B Preferred Stock
	 

	 	7,431	 	 	Shares of Series C Preferred Stock
	 
	 	 	 	 	 	 
	 	 	MDV LLC
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Vincent Worms
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Vincent Worms
	 

	 	Title
	 	Attorny-in-fact
	 

	 	Address:
	 	50 California Street, Suite 3200
	 

	 	 	 	 	 	San Francisco, CA 94111
	 

	 	109,489	 	 	Shares of Series B Preferred Stock
	 

	 	11,146	 	 	Shares of Series C Preferred Stock
	 
	 	 	 	 	 	 
	 	 	Multinvest LLC
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ Vincent Worms
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Vincent Worms
	 

	 	Title
	 	Managing Member
	 

	 	Address:
	 	50 California Street, Suite 3200
	 

	 	 	 	 	 	San Francisco, CA 94111
	 

	 	36,496	 	 	Shares of Series B Preferred Stock
	 

	 	3,715	 	 	Shares of Series C Preferred Stock






Signature Page to First Amendment to Amended and Restated Stockholder Rights Agreement




 









 








	 	 	 	 	 	 	 
	 	 	HLM Investment Partners, L.L.C.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     /s/ A.R. HaberKorn III
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	A.R. HaberKorn III
	 

	 	 	 	 	 	 
	 

	 	Title
	 	Manager
	 

	 	 	 	 	 	 
	 

	 	Address:
	 	c/o HLM Management Co., Inc.
	 

	 	 	 	 	 	222 Berkeley St., 21st Floor
	 

	 	 	 	 	 	Boston, MA 02116
	 

	 	36,496	 	 	Shares of Series B Preferred Stock
	 

	 	4,596	 	 	Shares of Series C Preferred Stock
	 
	 	 	 	 	 	 
	 	 	Sterling Venture Partners, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Sterling Venture Partners, LLC, its General
	 

	 	 	 	 	 	Partner
	 

	 	By:
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	R. Alan Macksey, Jr., Principal
	 

	 	Address:
	 	111 South Calvert Street
	 

	 	 	 	 	 	Suite 2810
	 

	 	 	 	 	 	Baltimore, MD 21202
	 

	 	2,919,708	 	 	Shares of Series B Preferred Stock
	 

	 	437,957	 	 	Shares of Series C Preferred Stock
	 
	 	 	 	 	 	 
	 	 	Pacific Life Insurance Co.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Title
	 	 
	 

	 	 	 	 	 	 
	 

	 	Address:
	 	700 Newport Center Drive
	 

	 	 	 	 	 	Newport Beach, CA 92660-6397
	 

	 	821,168	 	 	Shares of Series B Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 






Signature Page to First Amendment to Amended and Restated Stockholder Rights Agreement




 









 








	 	 	 	 	 	 	 
	 	 	HLM Investment Partners, L.L.C.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Title
	 	 
	 

	 	 	 	 	 	 
	 

	 	Address:
	 	c/o HLM Management Co., Inc.
	 

	 	 	 	 	 	222 Berkeley St., 21st Floor
	 

	 	 	 	 	 	Boston, MA 02116
	 

	 	36,496	 	 	Shares of Series B Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	Sterling Venture Partners, L.P.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Sterling Venture Partners, LLC, its General
	 

	 	 	 	 	 	Partner
	 

	 	By:
	 	     /s/ Michael G. Bronfein
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Michael G. Bronfein, Managing Member
	 

	 	Address:
	 	111 South Calvert Street
	 

	 	 	 	 	 	Suite 2810
	 

	 	 	 	 	 	Baltimore, MD 21202
	 

	 	2,919,708	 	 	Shares of Series B Preferred Stock
	 

	 	437,957	 	 	Shares of Series C Preferred Stock
	 
	 	 	 	 	 	 
	 	 	Pacific Life Insurance Co.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Title
	 	 
	 

	 	 	 	 	 	 
	 

	 	Address:
	 	700 Newport Center Drive
	 

	 	 	 	 	 	Newport Beach, CA 92660-6397
	 

	 	821,168	 	 	Shares of Series B Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 






Signature Page to First Amendment to Amended and Restated Stockholder Rights Agreement





 









 








	 	 	 	 	 	 	 
	 	 	Pacific Life & Annuity Company
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Title
	 	 
	 

	 	 	 	 	 	 
	 

	 	Address:
	 	c700 Newport Center Drive
	 

	 	 	 	 	 	Newport Beach, CA 92660-6397
	 

	 	91,241	 	 	Shares of Series B Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Envest Ventures II, L.L.C.
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 /s/ John Garel
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	John Garel
	 

	 	 	 	 	 	 
	 

	 	Title:
	 	Sr. Managing Director
	 

	 	 	 	 	 	 
	 

	 	Address:
	 	2101 Parks Avenue
	 

	 	 	 	 	 	Suite 401
	 

	 	 	 	 	 	Virginia Beach, VA 23451
	 

	 	364,963	 	 	Shares of Series B Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Sentara Healthcare, Inc.
	 	
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Title
	 	 
	 

	 	 	 	 	 	 
	 

	 	Address:
	 	6015 Poplar Hall Drive
	 

	 	 	 	 	 	Suite 308
	 

	 	 	 	 	 	Norfolk, VA 23502
	 

	 	50,000	 	 	Shares of Series B Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 






Signature Page to First Amendment to Amended and Restated Stockholder Rights Agreement





 









 








	 	 	 	 	 	 	 
	 	 	     /s/ David Kremer      /s/ Marla Miller
	 	 	 
	 	 	David Kremer and Marla Miller, Husband and Wife
	 

	 	Address:
	 	18 Sixth Avenue
	 

	 	 	 	 	 	San Francisco, CA 94118
	 

	 	22,810	 	 	Shares of Series A Preferred Stock
	 

	 	2,322	 	 	Shares of Series C Preferred Stock
	 
	 	 	 	 	 	 
	 	 	 
	 	 	Thomas J. Laird
	 

	 	Address:
	 	24950 Paseo Del Rancho
	 

	 	 	 	 	 	Calabas, CA 91302
	 

	 	22,810	 	 	Shares of Series A Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 

	 	Alex S. Evers, M.D.
	 	 
	 

	 	Address:
	 	661 West Polo Drive
	 

	 	 	 	 	 	Clayton, MO 63105
	 

	 	22,810	 	 	Shares of Series A Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	     /s/ Samuel M. Rosenfeld
	 	 	 
	 	 	Samuel M. Rosenfeld
	 

	 	Address:
	 	443 North Rose Lane
	 

	 	 	 	 	 	Haverford, PA 19041
	 

	 	18,248	 	 	Shares of Series A Preferred Stock
	 

	 	14,600	 	 	Shares of Series C Preferred Stock
	 
	 	 	 	 	 	 
	 	 	Atwell, Curtis & Brooks, Ltd.
	 

	 	By:
	 	     /s/ Arlene M. Angelilli
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Arlene M. Angelilli
	 

	 	 	 	 	 	 
	 

	 	Title:
	 	President
	 

	 	 	 	 	 	 
	 

	 	Address:
	 	204 Stonehinge Lane
	 

	 	 	 	 	 	P.O. Box 363
	 

	 	 	 	 	 	Carle Place, NY 11514
	 

	 	22,810	 	 	Shares of Series A Preferred Stock
	 

	 	2,322	 	 	Shares of Series C Preferred Stock






Signature Page to First Amendment to Amended and Restated Stockholder Rights Agreement





 









 








	 	 	 	 	 	 	 
	 	 	     /s/ Maida R. Milone
	 	 	 
	 	 	Maida R. Milone
	 

	 	Address:
	 	912 Field Lane
	 

	 	 	 	 	 	Villanova, PA 19805
	 

	 	21,898	 	 	Shares of Series B Preferred Stock
	 

	 	2,229	 	 	Shares of Series C Preferred Stock
	 
	 	 	 	 	 	 
	 	 	Hogan & Hartson LLP
	 

	 	By:
	 	     /s/ Prentiss E. Feagles
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Prentiss E. Feagles
	 

	 	Title:
	 	General Partner
	 

	 	Address:
	 	555 13th Street, NW
	 

	 	 	 	 	 	Washington, DC 20004
	 

	 	18,248	 	 	Shares of Series B Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	“NEW STOCKHOLDER”
	 
	 	 	 	 	 	 
	 	 	Premier, Inc.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Title
	 	 
	 

	 	 	 	 	 	 
	 

	 	Address:
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 






Signature Page to First Amendment to Amended and Restated Stockholder Rights Agreement





 









 








	 	 	 	 	 	 	 
	 	 	 
	 	 	Maida R. Milone
	 

	 	Address:
	 	912 Field Lane
	 

	 	 	 	 	 	Villanova, PA 19805
	 

	 	21,898	 	 	Shares of Series B Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	Hogan & Hartson LLP
	 

	 	By:
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Prentiss E. Feagles
	 

	 	Title:
	 	General Partner
	 

	 	Address:
	 	555 13th Street, NW
	 

	 	 	 	 	 	Washington, DC 20004
	 

	 	18,248	 	 	Shares of Series B Preferred Stock
	 

	 	 	 	 	 	Shares of Series C Preferred Stock
	 

	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	“NEW STOCKHOLDER”
	 
	 	 	 	 	 	 
	 	 	Premier, Inc.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Premier Plans, LLC
	 

	 	Its:
	 	General Partner
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ann D. Rhoads
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Ann D. Rhoads
	 

	 	Title
	 	Chief Financial Officer
	 

	 	Address:
	 	12225 El Camino Real
	 

	 	 	 	 	 	San Diego, CA 92130
	 

	 	729,928	 	 	Shares of Series C Preferred Stock






Signature Page to First Amendment to Amended and Restated Stockholder Rights Agreement





 









 






Exhibit A 




NEW STOCKHOLDER




Premier Purchasing Partners, L.P.




SERIES A STOCKHOLDERS




Cardinal Health Partners, L.P.

Abell Foundation

Anne DeGheest

Guy Miller

James Oakey

Michael J. Schwartz

Nancy Adler




SERIES B STOCKHOLDERS




Pacific Venture Group II, L.P.

PVG Associates II, L.P.

Partech U.S. Partners IV, L.L.C.

Cardinal Health Partners, L.P.

Abell Foundation

Double Black Diamond II

45th Parallel

MDV, L.L.C.

Multinvest, L.L.C.

HLM Investment Partners, L.L.C.

Sterling Venture Partners, L.P.

Pacific Life Insurance Co.

Pacific Life & Annuity Company

Envest Ventures I, L.L.C.

Sentara Healthcare, Inc.

David Kremer and Marla Miller, Husband and Wife

Thomas J. Laird

Alex S. Evers, M.D.

Samuel M. Rosenfeld

Atwell, Curtis & Brooks, Ltd.

Maida R. Milone

Hogan & Hartson L.L.P.





 









 








Exhibit B

(Exhibit B to the Stockholder Rights Agreement, as amended)




EXHIBIT B

SCHEDULE OF PURCHASERS




Pacific Venture Group II, L.P.

15635 Alton Parkway

Suite 230

Irvine, CA 92618




PVG Associates II, LP

15635 Alton Parkway Suite 230

Irvine, CA 92618




Partech U.S. Partners IV, LLC

50 California Street

Suite 3200

San Francisco, CA 94111




Double Black Diamond

11 50 California Street

Suite 3200

San Francisco, CA 94111




45th Parallel

50 California Street

Suite 3200

San Francisco, CA 94111




MDV LLC

50 California Street

Suite 3200

San Francisco, CA 94111




Multinvest LLC

50 California Street

Suite 3200

San Francisco, CA 94111




Cardinal Health Partners, L.P.

22l Nassau Street

Princeton, NJ 08542




Abell Foundation

111 South Calvert St Suite 2300

Baltimore, MD 21202




 









 





HLM Investment Partners, L.L.C.

c/o HLM Management

222 Berkeley Street, 21st Floor

Boston, MA 02116




Sterling Venture Partners, L.P.

111 South Calvert Street

Suite 2810

Baltimore, MD 21202




Pacific Life Insurance Co.

700 Newport Center Drive

Newport Beach, CA 92660-6397




Pacific Life & Annuity Company

700 Newport Center Drive

Newport Beach, CA 92660-6397




Envest Ventures I, L.L.C.

2101 Parks Avenue

Suite 401

Virginia Beach, VA 23451




Sentara Healthcare, Inc.

6015 Poplar Hall Drive

Suite 308

Norfolk, VA 23502




David Kremer and Marla Miller

18 Sixth Avenue

San Francisco, CA 94111




Thomas J. Laird

24950 Paseo Del Rancho

Calabas, CA 91302




Alex S. Evers, M.D.

661 West Polo Drive

Clayton, MO 63105




Sameul M. Rosenfeld

443 North Rose Lane

Haveford, PA 19041




Atwell, Curtis & Brooks, Ltd.

204 Stonehinge Lane

P.O. Box 363

Carle Place, NY 11514




- 2 -









 





	 	 	 
	Maida R. Milone
	 	 
	912 Fields Lane
	 	 
	Villanova, PA 19805
	 	 
	 
	 	 
	Hogan & Hartson, LLP
	 	 
	555 13th Street, NW
	 	 
	Washington, DC 20005
	 	 
	 
	Premier Purchasing Partners, L.P.
	 	 
	 
	 	 
	 


	 	 
	 


	 	 






- 3 -









 






JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 and further amended on January 14, 2002 (the
“Stockholder Agreement”), by and among Visicu, Inc., a Delaware corporation, and the Stockholders
named as such therein. Capitalized terms used but not defined herein shall have the meanings given
such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




	 	 	 	 	 	 	 	 	 
	Date: June 28, 2002
	 	 	 	 	 	 	 	 
	 	 	Mackerel Capital Limited	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Jeffrey Cameron /s/ Ian Dickson
 

	 	 
	 	 	 	 	Name: Jeffrey W. Cameraon Ian Dickson	 	 
	 	 	 	 	Title: Vice President Assistant Secretary	 	 






	 	 	 	 	 
	 

	 	Mailing Address:
	 	c/o Banner Capital Management
	 

	 	 	 	Washington Mall – Phase I
	 

	 	 	 	Church Street, 3rd Floor
	 

	 	 	 	Hamilton HM11, Bermuda







 









 








JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 and further amended on January 14, 2002 (the
“Stockholder Agreement”), by and among Visicu, Inc., a Delaware corporation, and the Stockholders
named as such therein. Capitalized terms used but not defined herein shall have the meanings given
such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




	 	 	 	 	 	 	 	 	 
	Date: June 28, 2002
	 	 	 	 	 	 	 	 
	 	 	Vendome Capital, L.L.C.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Thomas G. McKinley
 

	 	 
	 	 	 	 	Name: Thomas G. McKinley	 	 
	 	 	 	 	Title: Managing Member	 	 






	 	 	 	 	 	 	 
	 

	 	Address:
	 	1101 Main Street, Suite 104
	 	 
	 

	 	 	 	PMB 410	 	 
	 

	 	 	 	Evanston, Wyoming 82930	 	 







 









 








JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 and further amended on January 14, 2002 (the
“Stockholder Agreement”), by and among Visicu, Inc., a Delaware corporation, and the Stockholders
named as such therein. Capitalized terms used but not defined herein shall have the meanings given
such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




	 	 	 	 	 	 	 	 	 
	Date: June 28, 2002
	 	 	 	 	 	 	 	 
	 	 	McKinley Family Revocable Trust	 	 
	 
	 

	 	By:	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Thomas G. McKinley
 

	 	 
	 	 	 	 	Name: Thomas G. McKinley	 	 
	 	 	 	 	Title: Trustee	 	 






	 	 	 	 	 	 	 
	 

	 	Address:
	 	c/o Partech International, Inc.
	 	 
	 

	 	 	 	50 California Street, Suite 3200	 	 
	 

	 	 	 	San Francisco, CA 94111	 	 







 









 








JOINDER AGREEMENT




          The undersigned (a “Joining Party”) hereby acknowledges and agrees to become party to and to
succeed to all of the rights and obligations of a Holder under that certain Amended and Restated
Stockholder Rights Agreement, dated as of June 2, 2000 and further amended on January 14, 2002 (the
“Stockholder Agreement”), by and among Visicu, Inc., a Delaware corporation, and the Stockholders
named as such therein. Capitalized terms used but not defined herein shall have the meanings given
such terms in the Stockholder Agreement.




          Accordingly, the Joining Party hereby acknowledges, agrees and confirms that, by its execution
of this Joinder Agreement, the Joining Party will be deemed to be a party to the Stockholder
Agreement and shall have all of the obligations of a Stockholder thereunder as if it had executed
the Stockholder Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the Stockholder Agreement.




          IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.




	 	 	 	 	 
	Date: June 28, 2002
	 	 	 	 
	 

	 	/s/ Timothy T. Weglicki	 	 
	 

	 	 

Timothy T. Weglicki