exv10w7



 






Exhibit 10.7



THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.




	 	 	 	 	 
	 

	 	WARRANT TO PURCHASE STOCK
	 	 
	 
	 	 	 	 
	Corporation:

	 	VISICU, INC., a Delaware corporation	 	 
	Number of Shares:

	 	43,796	 	 
	Class of Stock:

	 	Series C Convertible Preferred Stock	 	 
	Initial Exercise Price:

	 	$1.37 per share	 	 
	Issue Date:

	 	July 17, 2003	 	 
	Expiration Date:

	 	July 17, 2010 (Subject to Section 4.1)	 	 






     THIS WARRANT CERTIFIES THAT, in consideration for the commitment of COMERICA BANK (the “Bank”)
to make available to Visicu, Inc., a Delaware corporation (the “Company”), a $2,000,000 revolving
credit facility as provided for in that certain Loan and Security Agreement dated as of the Issue
Date between Bank and Company, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the Bank or its registered assignee (“Holder”) is entitled to purchase the
number of fully paid and nonassessable shares of the class of securities (the “Shares”) of the
Company at the initial exercise price per Share (the “Warrant Price”) all as set forth above and as
adjusted pursuant to Article 2 of this warrant, subject to the provisions and upon the terms and
conditions set forth in this warrant.


ARTICLE 1. EXERCISE.




     1.1 Method of Exercise. Holder may exercise this warrant by delivering this
warrant and a duly executed Notice of Exercise in substantially the form attached as Appendix 1 to
the principal office of the Company. Unless Holder is exercising the conversion right set forth in
Section 1.2, Holder shall also deliver to the Company a check for the aggregate Warrant Price for
the Shares being purchased.



     1.2 Conversion Right. In lieu of exercising this warrant as specified in
Section 1.1, Holder may from time to time convert this warrant, in whole or in part, into a number
of Shares determined by dividing (a) the aggregate fair market value of the Shares or other
securities otherwise issuable upon exercise of this warrant minus the aggregate Warrant Price of
such Shares by (b) the fair market value of one Share. The fair market value of the Shares shall be
determined pursuant to Section 1.3.



     1.3 Fair Market Value. If the Shares are traded regularly in a public
market, the fair market value of the Shares shall be the closing price of the Shares (or the
closing price of the Company’s stock into which the Shares are convertible) reported for the
business day immediately before Holder delivers its Notice of Exercise to the Company. If the
Shares are not regularly traded in a public market, the Board of Directors of the Company shall
determine fair market value in its reasonable good faith judgment, which judgment shall be final
and exclusive.



     1.4 Delivery of Certificate and New Warrant. Promptly after Holder exercises
or converts this warrant, the Company shall deliver to Holder certificates for the Shares acquired
and, if this warrant has not been fully exercised or converted and has not expired, a new warrant
representing the Shares not so acquired.



     1.5 Replacement of Warrants. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this warrant and, in the case of
loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form
and amount to the Company or, in the case of mutilation, on surrender and cancellation of this
warrant, the Company at its expense shall execute and deliver, in lieu of this warrant, a new
warrant of like tenor.



     1.6 Repurchase on Sale, Merger, or Consolidation of the Company.



 









 





          1.6.1 “Acquisition.” For the purpose of this warrant, “Acquisition” means
any sale, license, or other disposition of all or substantially all of the assets (including
intellectual property) of the Company, or any reorganization, consolidation, or merger of the
Company where the holders of the Company’s securities before the transaction beneficially own less
than 50% of the outstanding voting securities of the surviving entity after the transaction.




          1.6.2 Assumption of Warrant. If upon the closing of any Acquisition the
successor entity assumes the obligations of this warrant, then this warrant shall be exercisable
for the same securities, cash, and property as would be payable for the Shares issuable upon
exercise of the unexercised portion of this warrant as if such Shares were outstanding on the
record date for the Acquisition and subsequent closing. The Warrant Price shall be adjusted
accordingly. The Company shall use reasonable efforts to cause the surviving corporation to assume
the obligations of this warrant.




          1.6.3 Nonassumption. If upon the closing of any Acquisition the successor
entity does not assume the obligations of this warrant and Holder has not otherwise exercised this
warrant in full, then Holder shall have the option either to (a) deem this warrant to have been
automatically converted pursuant to Section 1.2 and thereafter Holder shall participate in the
Acquisition on the same terms as other holders of the same class of securities of the Company; or
(b) require the Company to purchase this warrant for cash upon the closing of the Acquisition for
an amount equal to two (2) times the Warrant Price.




     1.7 Adjustment in Underlying Preferred Stock Price and Exercise Price. If
Holder, in its sole discretion, grants the Company a Covenant Holiday (as defined in that certain
Loan and Security Agreement dated as of the Issue Date between the Company and Holder, as amended),
the Number of Shares subject to this warrant shall, as of the date on which such Covenant Holiday
is granted, automatically be adjusted to equal to 87,591.



ARTICLE 2. ADJUSTMENTS TO THE SHARES.




     2.1 Stock Dividends, Splits, Etc. If the Company declares or pays a dividend
on its common stock payable in common stock, or other securities, subdivides the outstanding common
stock into a greater amount of common stock, then upon exercise of this warrant, for each Share
acquired, Holder shall receive, without cost to Holder, the total number and kind of securities to
which Holder would have been entitled had Holder owned the Shares of record as of the date the
dividend or subdivision occurred.



     2.2 Reclassification, Exchange or Substitution. Upon any reclassification,
exchange, substitution, or other event that results in a change of the number and/or class of the
securities issuable upon exercise or conversion of this warrant, Holder shall be entitled to
receive, upon exercise or conversion of this warrant, the number and kind of securities and
property that Holder would have received for the Shares if this warrant had been exercised
immediately before such reclassification, exchange, substitution, or other event. Such an event
shall include any automatic conversion of the outstanding or issuable securities of the Company of
the same class or series as the Shares to common stock pursuant to the terms of the Company’s Third
Amended and Restated Certificate of Incorporation upon the closing of a registered public offering
of the Company’s common stock. The Company or its successor shall promptly issue to Holder a new
warrant for such new securities or other property. The new warrant shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments provided for in this
Article 2 including, without limitation, adjustments to the Warrant Price and to the number of
securities or property issuable upon exercise of the new warrant. The provisions of this Section
2.2 shall similarly apply to successive reclassifications, exchanges, substitutions, or other
events.



     2.3 Adjustments for Combinations, Etc. If the outstanding Shares are
combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the
Warrant Price shall be proportionately increased. If the outstanding Shares are combined or
consolidated, by reclassification or otherwise, into a greater number of shares, the Warrant Price
shall be proportionately decreased.



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     2.4 Adjustments for Diluting Issuances. The Warrant Price and the number of
Shares issuable upon exercise of this warrant shall be subject to adjustment, from time to time, in
the manner set forth on Exhibit A in the event of Diluting Issuances (as defined on Exhibit
A).



     2.5 No Impairment. The Company shall not, by amendment of its Certificate of
Incorporation or through a reorganization, transfer of assets, consolidation, merger, dissolution,
issue, or sale of securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed under this warrant by the Company,
but shall at all times in good faith assist in carrying out all the provisions of this Article 2
and in taking all such action as may be necessary or appropriate to protect Holder’s rights under
this Article against impairment.



     2.6 Certificate as to Adjustments. Upon each adjustment of the Warrant
Price, the Company at its expense shall promptly compute such adjustment, and furnish Holder with a
certificate of its Chief Financial Officer setting forth such adjustment and the facts upon which
such adjustment is based. The Company shall, upon written request, furnish Holder a certificate
setting forth the Warrant Price in effect upon the date thereof and the series of adjustments
leading to such Warrant Price.



     2.7 Fractional Shares. No fractional Shares shall be issuable upon exercise
or conversion of the Warrant and the Number of Shares to be issued shall be rounded down to the
nearest whole Share. If a fractional share interest arises upon any exercise or conversion of the
Warrant, the Company shall eliminate such fractional share interest by paying Holder amount
computed by multiplying the fractional interest by the fair market value of one Share as of the
date of exercise of this warrant.



ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.




     3.1 Representations and Warranties. The Company hereby represents and
warrants to the Holder as follows:



          (a) The initial Warrant Price referenced on the first page of this warrant is not
greater than the fair market value of the Shares as of the date of this warrant




          (b) All Shares which may be issued upon the exercise of the purchase right
represented by this warrant, and all securities, if any, issuable upon conversion of the Shares,
shall, upon issuance, be duly authorized, validly issued, fully paid and nonassessable, and free of
any liens and encumbrances except for restrictions on transfer provided for herein or under
applicable federal and state securities laws.




          (c) The Company’s capitalization table attached to this warrant is true and complete
in all material respects as of the Issue Date.




     3.2 Notice of Certain Events. If the Company proposes at any time (a) to
declare any dividend or distribution upon its common stock, whether in cash, property, stock, or
other securities and whether or not a regular cash dividend; (b) to offer for subscription pro rata
to the holders of any class or series of its stock any additional shares of stock of any class or
series or other rights; (c) to effect any reclassification or recapitalization of common stock; or
(d) to merge or consolidate with or into any other corporation, or sell, lease, license, or convey
all or substantially all of its assets, or to liquidate, dissolve or wind up, then, in connection
with each such event, the Company shall give Holder (1) at least 20 days prior written notice of
the date on which a record will be taken for such dividend, distribution, or subscription rights
(and specifying the date on which the holders of common stock will be entitled thereto) or for
determining rights to vote, if any, in respect of the matters referred to in (a) and (b) above; and
(2) in the case of the matters referred to in (c) and (d) above at least 20 days prior written
notice of the date when the same will take place (and specifying the date on which the holders of
common stock will be entitled to exchange their common stock for securities or other property
deliverable upon the occurrence of such event).



     3.3 Information Rights. So long as the Holder holds this warrant and/or any
of the Shares, the Company shall deliver to the Holder (a) promptly after mailing, copies of all
communiques to the shareholders of



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the Company, (b) within 150 days after the end of each fiscal year of the Company, the annual
audited financial statements of the Company certified by independent public accountants of
recognized standing and (c) within 45 days after the end of each of the first three quarters of
each fiscal year, the Company’s quarterly, unaudited financial statements.




     3.4 Registration Under Securities Act of 1933, as amended. The Company
agrees that the Shares or, if the Shares are convertible into common stock of the Company, such
common stock, shall be subject to the registration rights set forth on Exhibit B.



ARTICLE 4. MISCELLANEOUS.




     4.1 Term: Notice of Expiration. This warrant is exercisable in whole or in
part, at any time and from time to time on or before the Expiration Date set forth above; provided,
however, that if the Company completes its initial public offering within the three-year period
immediately prior to the Expiration Date, the Expiration Date shall automatically be extended until
the third anniversary of the effective date of the Company’s initial public offering. If this
warrant has not been exercised prior to the Expiration Date, this warrant shall be deemed to have
been automatically exercised on the Expiration Date by “cashless” conversion pursuant to Section
1.2.



     4.2 Legends. This warrant and the Shares (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) shall be imprinted with a legend in
substantially the following form:



     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR
PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.



     4.3 Compliance with Securities Laws on Transfer. This warrant and the Shares
issuable upon exercise of this warrant (and the securities issuable, directly or indirectly, upon
conversion of the Shares, if any) may not be transferred or assigned in whole or in part without
compliance with applicable federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment representation letters and legal
opinions reasonably satisfactory to the Company). The Company shall not require Holder to provide
an opinion of counsel if the transfer is to an affiliate of Holder or if there is no material
question as to the availability of current information as referenced in Rule 144(c), Holder
represents that it has complied with Rule 144(d) and (e) in reasonable detail, the selling broker
represents that it has complied with Rule 144(f), and the Company is provided with a copy of
Holder’s notice of proposed sale.



     4.4 Transfer Procedure. Subject to the provisions of Section 4.3, Holder may
transfer all or part of this warrant or the Shares issuable upon exercise of this warrant (or the
securities issuable, directly or indirectly, upon conversion of the Shares, if any) by giving the
Company notice of the portion of the warrant being transferred setting forth the name, address and
taxpayer identification number of the transferee and surrendering this warrant to the Company for
reissuance to the transferee(s) (and Holder, if applicable); provided, however, that Holder
may transfer all or part of this warrant to its affiliates, including, without limitation, Comerica
Incorporated, at any time without notice to the Company, and such affiliate shall then be entitled
to all the rights of Holder under this warrant and any related agreements, and the Company shall
cooperate fully in ensuring that any stock issued upon exercise of this warrant is issued in the
name of the affiliate that exercises the warrant. The terms and conditions of this warrant shall
inure to the benefit of, and be binding upon, the Company and the holders hereof and their
respective permitted successors and assigns. Unless the Company is filing financial information
with the SEC pursuant to the Securities Exchange Act of 1934, the Company shall have the right to
refuse to transfer any portion of this warrant to any person who directly competes with the
Company.



     4.5 Notices. All notices and other communications from the Company to the
Holder, or vice versa, shall be deemed delivered and effective when given personally or mailed by
first-class registered or certified mail,



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postage prepaid, at such address as may have been furnished to the Company or the Holder, as
the case may be, in writing by the Company or such Holder from time to time. All notices to the
Holder shall be addressed as follows:



Comerica Bank

Attn: Warrant Administrator

Technology and Life Sciences Division P.O. Box 7279

San Francisco, CA 94120-7279


With a copy to


Comerica Bank

Attn: Warrant Administrator

Technology and Life Sciences Division 5 Palo Alto Square, Suite 800

3000 El Camino Real

Palo Alto, CA 94306



     4.6 Stockholder Rights; Stockholder Rights and Voting Agreement. Prior to
the exercise of this warrant, Holder shall not be entitled to any rights of a stockholder with
respect to the Shares, including, without limitation, the right to vote such Shares, receive
dividends or other distributions thereon, or exercise preemptive rights. Holder agrees to execute
a joinder to that certain Amended and Restated Stockholder Rights and Voting Agreement dated June
2, 2000 by and between the Company and the stockholders identified therein, as amended from time to
time, upon any exercise of this warrant.



     4.7 Amendments. This warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought.



     4.8 Attorneys’ Fees. In the event of any dispute between the parties
concerning the terms and provisions of this warrant, the party prevailing in such dispute shall be
entitled to collect from the other party all out-of-pocket costs incurred in such dispute,
including reasonable attorneys’ fees.



     4.9 Governing Law. This warrant shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to its principles
regarding conflicts of law.



	 	 	 	 	 	 	 	 	 
	 	 	VISICU, INC.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Frank T. Sample 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Name:	 	Frank T. Sample 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Title:	 	Chairman & CEO 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 	 
	 	 	 	 	 




Authorized signatories under Corporate Resolutions to Borrow or an authorized signer(s) under a
resolution covering warrants must sign the warrant.




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APPENDIX 1




NOTICE OF EXERCISE




     1. The undersigned hereby elects to purchase                    shares of the                    stock of VISICU, INC. pursuant to the terms of the attached warrant, and tenders
herewith payment of the purchase price of such shares in full.



     1. The undersigned hereby elects to convert the attached warrant into shares in the
manner specified in the warrant. This conversion is exercised with respect to                    of the
shares covered by the warrant.



     [Strike paragraph that does not apply.]




     2. Please issue a certificate or certificates representing said shares in the name
of the undersigned or in such other name as is specified below:


Comerica Bank

Attn: Warrant Administrator

Technology and Life Sciences Division

P.O. Box 7279

San Francisco, CA 94120-7279




     3. The undersigned represents it is acquiring the shares solely for its own account
and not as a nominee for any other party and not with a view toward the resale or distribution
thereof except in compliance with applicable securities laws.



COMERICA BANK or Registered Assignee




	 	 	 
	 

(Signature)

	 	 
	 
	 	 
	 

(Date)

	 	 






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EXHIBIT A




Anti-Dilution Provisions




     In the event of the issuance (a “Diluting Issuance”) by the Company, after the Issue Date of
the warrant, of securities at a price per share less than the Warrant Price, then the number of
shares of common stock issuable upon conversion of the Shares shall be adjusted in accordance with
the relevant provisions of Section 4(d) of the Company’s Third Amended and Restated Certificate of
Incorporation which apply to Diluting Issuances.



     Under no circumstances shall the aggregate Warrant Price payable by the Holder upon exercise of the
warrant increase as a result of any adjustment arising from a Diluting Issuance.



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EXHIBIT B




Registration Rights




     The Shares (if common stock), or the common stock issuable upon conversion of the Shares,
shall be deemed “registrable securities” for purposes of that certain Amended and Restated
Stockholder Rights and Voting Agreement dated as of June 2, 2000 (the “Stockholder Rights
Agreement”) between the Company and its investor(s), as amended from time to time, and the Holder
shall be entitled to “piggy back” registration rights in accordance with Section 4.2 of the
Stockholder Rights Agreement.



     The Company agrees that no amendments will be made to the Stockholder Rights Agreement, which
would have an unique adverse impact on Holder’s registration rights thereunder without the consent
of Holder. By acceptance of the Warrant to which this Exhibit B is attached, Holder shall
be deemed to be a party to the Agreement.




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