FORM OF

FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION

OF

VISICU, INC.

(Pursuant to Sections 242 and 245 of the
Delaware General Corporation Law)

     Visicu, Inc., a corporation organized and existing under and by virtue of the provisions of the Delaware General Corporation Law (the “DGCL”) does hereby certify:

     1. That the name of this Corporation is Visicu, Inc. (the “Corporation”).

     2. That the original Certificate of Incorporation of the Corporation (then named Integrated Critical Care Management, Inc.) was filed with the office of the Secretary of State of Delaware on March 19, 1998; that a Certificate of Amendment was filed with the office of the Secretary of State of Delaware on June 10, 1998 (changing the name of the Corporation to ICUSA, Inc.); that a Restated Certificate of Incorporation was filed with the office of the Secretary of State of Delaware on July 6, 1998; that a Certificate of Renewal and Revival was filed with the office of the Secretary of State of Delaware on May 9, 2000; that a Certificate of Amendment was filed with the office of the Secretary of State of Delaware on May 22, 2000 (increasing the number of shares of Preferred Stock designated as Series A Preferred Stock); that a Restated Certificate of Incorporation was filed with the office of the Secretary of State of Delaware on May 30, 2000; that a Certificate of Amendment was filed with the Secretary of State of Delaware on October 2, 2000 (changing the name of the Corporation to Visicu, Inc.); that a Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on January 14, 2002; that a Certificate of Amendment was filed with the Secretary of State of Delaware on May 7, 2003 (amending the definition of “Additional Shares of Common Stock”); that a Certificate of Amendment was filed with the Secretary of State of Delaware on April 6, 2004 (amending the definition of “Additional Shares of Common Stock”); that a Certificate of Amendment was filed with the Secretary of State of Delaware on July 18, 2005 (amending the definition of “Additional Shares of Common Stock”); and that a Certificate of Amendment was filed with the Secretary of State of Delaware on March 10, 2006 (increasing the number of authorized shares of common stock).

     3. That this Fourth Amended and Restated Certificate of Incorporation was duly adopted by the Board of Directors and the stockholders of the Corporation in accordance with the provisions of Sections 242 and 245 of the DGCL. This Fourth Amended and Restated Certificate of Incorporation restates, integrates, amends and supersedes the provisions of the original Certificate of Incorporation of the Corporation, as amended and/or restated to date.

     4. That the text of the Certificate of Incorporation of the Corporation, as amended and/or restated to date, is amended and restated in its entirety as follows:

 


 

ARTICLE FIRST

     The name of the Corporation is Visicu, Inc. (the “Corporation”).

ARTICLE SECOND

     The address of the registered office of the Corporation in the State of Delaware is The Corporation Trust Company, 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801. The name of its registered agent is at such office is The Corporation Trust Company.

ARTICLE THIRD

     The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the Delaware General Corporation Law (the “DGCL”), as the same exists or may hereafter be amended.

ARTICLE FOURTH

     The total number of shares of all classes of stock which the Corporation shall have authority to issue is 110,000,000 shares, consisting of 100,000,000 shares of common stock, par value $0.0001 per share (the “Common Stock”), and 10,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”).

     A statement of the powers, designations, preferences, and relative participating, optional or other special rights and the qualifications, limitations and restrictions of the Common Stock and the Preferred Stock is as follows.

     1. Common Stock.

          (a) Dividends. Dividends may be declared and paid on the Common Stock from funds lawfully available therefor as, if and when, determined by the Board of Directors and subject to any preferential dividend rights of any then outstanding shares of Preferred Stock.

          (b) Liquidation Rights. In the event of a voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, the holders of shares of Common Stock shall be entitled, after payment or provision for payment of the debts and other liabilities of the Corporation, to share in the distribution of any remaining assets available for distribution to its stockholders ratably, subject to any preferential rights of any then outstanding Preferred Stock.

          (c) Voting Rights. The holders of Common Stock shall be entitled to one vote per share in voting or consenting to the election of directors and for all other matters presented to the stockholders of the Corporation for their action or consideration. Cumulative voting for the election of directors is not permissible. Except as otherwise required by law, the holders of the Common Stock shall vote together as a single class on all matters submitted to the stockholders of the Corporation.

     2. Preferred Stock. The Board of Directors is authorized, subject to limitations prescribed by law, to provide for the issuance of the Preferred Stock in one or more series, and by filing a certificate pursuant to the applicable law of the State of Delaware, to establish from

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time to time the number of shares to be included in each such series, and to fix the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof, as shall be stated in the resolutions providing for the issuance of such series adopted by the Board of Directors.

     The authority of the Board of Directors with respect to each series shall include, but not be limited to, determination of the following:

          (a) the number of shares constituting that series and the distinctive designation of that series;

          (b) the rate of dividend, and whether (and if so, on what terms and conditions) dividends shall be cumulative (and if so, whether unpaid dividends shall compound or accrue interest) or shall be payable in preference or in any other relation to the dividends payable on any other class or classes of stock or any other series of the Preferred Stock;

          (c) whether that series shall have voting rights in addition to the voting rights provided by law and, if so, the terms and extent of such voting rights;

          (d) whether the shares must or may be redeemed and, if so, the terms and conditions of such redemption (including, without limitation, the dates upon or after which they must or may be redeemed and the price or prices at which they must or may be redeemed, which price or prices may be different in different circumstances or at different redemption dates);

          (e) whether the shares shall be issued with the privilege of conversion or exchange and, if so, the terms and conditions of such conversion or exchange (including without limitation the price or prices or the rate or rates of conversion or exchange or any terms for adjustment thereof);

          (f) the amounts, if any, payable upon the shares in the event of voluntary liquidation, dissolution or winding up of the Corporation in preference of shares of any other class or series and whether the shares shall be entitled to participate generally in distributions on the Common Stock under such circumstances;

          (g) the amounts, if any, payable upon the shares thereof in the event of involuntary liquidation, dissolution or winding up of the Corporation in preference of shares of any other class or series and whether the shares shall be entitled to participate generally in distributions in the Common Stock under such circumstances;

          (h) sinking fund provisions, if any, for the redemption or purchase of the shares (the term “sinking fund” being understood to include any similar fund, however designated) and, if so, the terms and amount of such sinking fund; and

          (i) any other relative rights, preferences, limitations and powers of that series.

     3. No Preemptive Rights. Except as expressly set forth in this Certificate of Incorporation, any certificate of designation, any resolution or resolutions providing for the issuance of a series of stock adopted by the Board of Directors, or any agreement between the

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Corporation and its stockholders, the holders of Common Stock or any series of Preferred Stock shall have no preemptive right to subscribe for any shares of any class of capital stock of the Corporation whether now or hereafter authorized.

ARTICLE FIFTH

     The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:

     1. Powers and Duties of the Board of Directors. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authority expressly conferred upon them by statute or by this Certificate of Incorporation or the Bylaws of the Corporation, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation.

     2. No Written Ballots. The directors of the Corporation need not be elected by written ballot unless the Bylaws so provide.

     3. No Action by Written Consent of Stockholders. Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders.

     4. Special Meeting of Stockholders. Special meetings of stockholders of the Corporation may be called only (a) by the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any such resolution is presented to the Board for adoption) or (b) by the Chairman of the Board, the Chief Executive Officer, or the President and any power of stockholders to call a special meeting is specifically denied. Only such business shall be considered as is set forth in the notice for such meeting.

ARTICLE SIXTH

     1. Number of Directors. The number of directors shall initially be set at nine (9) and, thereafter, shall be fixed from time to time exclusively by the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any such resolution is presented to the Board for adoption) but such number shall in no case be less than five (5) nor more than eleven (11). Any such determination made by the Board of Directors shall continue in effect unless and until changed by the Board of Directors, but no such changes shall affect the term of any directors then in office.

     2. Classification of the Board of Directors; Term of Office. Upon the filing of this Fourth Amended and Restated Certificate of Incorporation, the directors shall be divided into three classes with the term of office of the first class (Class I) to expire at the first annual meeting of stockholders following the date of the filing of this Fourth Amended and Restated Certificate of Incorporation of the Corporation with the Secretary of State of Delaware (the

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Effective Date”); the term of office of the second class (Class II) to expire at the second annual meeting of stockholders held following the Effective Date; the term of office of the third class (Class III) to expire at the third annual meeting of stockholders following the Effective Date; and thereafter for each such term to expire at each third succeeding annual meeting of stockholders after such election. All directors shall hold office until the expiration of the term for which elected, and until their respective successors are elected, except in the case of the death, resignation, or removal of any director.

     3. Vacancies. Subject to the rights of the holders of any series of Preferred Stock then outstanding, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation or other cause (including removal from office by a vote of the stockholders) may be filled only by a majority vote of the directors then in office, though less than a quorum, or by the sole remaining director, and directors so chosen shall hold office for a term expiring at the next annual meeting of stockholders at which the term of office of the class to which they have been elected expires, and until their respective successors are elected, except in the case of the death, resignation, or removal of any director. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

     4. Removal. Subject to the rights of the holders of any series of Preferred Stock then outstanding, any directors, or the entire Board of Directors, may be removed from office at any time, but only for cause, and only by the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.

     5. Nominations. Advance notice of nominations by stockholders for the election of directors, and of stockholder proposals regarding action to be taken at any meeting of stockholders, shall be given in the manner and to the extent provided in the Bylaws of the Corporation.

ARTICLE SEVENTH

     The Board of Directors is expressly empowered to adopt, amend or repeal Bylaws of the Corporation. Any adoption, amendment or repeal of Bylaws of the Corporation by the Board of Directors shall require the approval of a majority of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any resolution providing for adoption, amendment or repeal is presented to the Board). The stockholders shall also have power to adopt, amend or repeal the Bylaws of the Corporation; provided, however, that any adoption, amendment or repeal of Bylaws of the Corporation by the stockholders shall require, in addition to any vote of the holders of any class or series of stock of the Corporation required by law or by this Certificate of Incorporation, the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.

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ARTICLE EIGHTH

     A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided that nothing contained in this Article Eighth shall eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involved intentional misconduct or a knowing violations of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit.

     If the DGCL is hereafter amended to authorize the further elimination or limitation of the liability of a director, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

     Any repeal or modification of the foregoing provisions of this Article Eighth by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of, or increase the liability of any director of the Corporation with respect to any acts or omissions of such director occurring prior to, such repeal or modification.

ARTICLE NINTH

     The Corporation reserves the right to amend or repeal any provision contained in this Certificate of Incorporation in the manner prescribed by the laws of the State of Delaware and all rights conferred upon stockholders are granted subject to this reservation; provided, however, that, notwithstanding any other provision of this Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any class or series of the stock of this Corporation required by law or by this Certificate of Incorporation, the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend or repeal Article Fifth, Article Sixth, Article Seventh, Article Eighth or this Article Ninth, or any provision within any such articles. No repeal, alteration or amendment of this Certificate of Incorporation shall be made unless the same is first approved by the Board of Directors of the Corporation pursuant to a resolution adopted by the directors then in office in accordance with the Bylaws and applicable law and thereafter approved by the stockholders.

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     IN WITNESS WHEREOF, the Corporation has caused this Fourth Amended and Restated Certificate of Incorporation to be signed by a duly authorized officer on this       day of                     , 2006.

 

 

 

 

 

 

VISICU, INC.
 

 

 

By:  

 

 

 

 

Frank T. Sample 

 

 

 

Chief Executive Officer 

 

 

 

 

ATTEST:

 

 

 

Secretary