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Exhibit
10.44
CAMBRIDGE HEART,
INC.
Amended and Restated
Voting Agreement
This Amended and Restated
Voting Agreement (the “Agreement”) is made and entered
into as of this 14 th day
of December, 2007, by and between Cambridge Heart, Inc. , a
Delaware corporation (the “Company”), and Robert
Khederian (the “Stockholder”).
WHEREAS , there are
currently no shares of Series A Convertible Preferred Stock of the
Company (the “Series A Stock”) outstanding, and there
are currently warrants to purchase an aggregate of 115,383 shares
of Series A Stock outstanding (the “Series A
Warrants”).
WHEREAS , the
Stockholder is the holder of record of warrants to purchase 78,054
shares of Series A Stock, representing approximately 67.6% of the
outstanding warrants to purchase shares of Series A
Stock;
WHEREAS , the Amended
and Restated Certificate of Incorporation of Cambridge Heart, Inc.
(the “Certificate of Incorporation”) and the
Certificate of Designations of the Preferred Stock of Cambridge
Heart, Inc. to be Designated Series A Convertible Preferred Stock
(the “Series A Certificate of Designations”) provides
that the holders of Series A Stock, voting as a separate class, are
entitled to elect up to four members of the Board of Directors (the
“Series A Directors”) and, at such time, the total
number of members of the Board of Directors may not exceed
nine.
WHEREAS , in
connection with the election of John McGuire and Keith Serzen as
directors of the Company, the Company and the Stockholder entered
into a Voting Agreement dated October 29, 2007 pursuant to
which the Stockholder agreed, among other things, to vote all of
his shares of Series A Stock so as to elect up to two individuals
that are nominated or recommended for election as Series A Stock
directors by a majority of the Board, provided the Board has
determined that such individuals qualify as independent directors
under the Nasdaq Marketplace Rules then in effect.
WHEREAS , the Company
and the Stockholder desire to elect Ali Haghighi-Mood, the
Company’s new Chief Executive Officer, to serve as a director
of the Company; and, in connection therewith, the Company and the
Stockholder desire to amend and restate the Voting Agreement dated
October 29, 2007 in order to provide, among other things, that
the Stockholder shall vote all of his shares of Series A Stock so
as to elect up to three individuals that are nominated or
recommended for election as Series A Stock directors by a majority
of the Board, provided that, in the case of each such director,
either the Board has determined that such director qualifies as an
independent director under the Nasdaq Marketplace Rules then in
effect or such director is serving at the time of the election as
the Chief Executive Officer of the Company.
NOW, THEREFORE , in
consideration of these premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. VOTING.
1.1 Stockholder
Shares. Except for the exercise of Series A Warrants in
accordance with the terms thereof, the Stockholder shall hold and
shall not transfer or otherwise dispose of any of the Series A
Warrants registered in his name as of the date hereof or any shares
of Series A Stock that he may acquire upon exercise of the Series A
Warrants if as a result of such transfer or disposition he will not
hold such number of Series A Warrants and/or shares of Series A
Preferred so that (assuming the exercise of all outstanding Series
A Warrants) the Stockholder holds at least a majority of the shares
of Series A Preferred then outstanding. Upon the request of the
Board of Directors of the Company from time to time, the
Stockholder agrees promptly thereafter to exercise in accordance
with the terms of the Series A Warrants on a for-cash basis that
number of Series A Warrants necessary so that the Stockholder holds
at least a majority of the shares of Series A Stock then
outstanding and entitled to vote.
1.2 Election of Series A
Directors. At any meeting held for the purpose of electing
directors of the Company (in person or by proxy) at which the
holders of Series A Preferred, voting as a separate class, are
entitled to elect directors of the Company, the Stockholder shall
vote all of his shares of Series A Stock so as to elect up to three
individuals that are nominated or recommended for election as
Series A Stock directors by a majority of the Board of Directors,
provided that, in the case of each such director, either the Board
has determined that such director qualifies as an independent
director under the Nasdaq Marketplace Rules then in effect or such
director is serving at the time of the election as the Chief
Executive Officer of the Company. On October 29, 2007, John
McGuire and Keith Serzen were elected directors of the Company with
the expectation that the Board will nominate or recommend them for
re-election to the Board of Directors as Series A Stock directors
at the 2008 Annual Meeting of Stockholders. Concurrently with the
execution of this Agreement, Ali Haghighi-Mood is being appointed a
director with the current expectation that the Board will nominate
or recommend him for re-election to the Board of Directors as a
Series A director at the 2009 Annual Meeting of Stockholders. Any
vote of the holders of Series A Stock taken to elect any individual
elected by the Board of Directors to fill any vacancy created by
the resignation, removal or death of a director elected pursuant to
this Section 1.2 shall also be subject to the provisions of
this Section 1.2. The Stockholder shall not take any action to
remove any director elected pursuant to this Section 1.2
except upon the approval of a majority of the Board of Directors of
the Company.
1.3 Successors. The
provisions of this Agreement shall be binding upon the successors
in interest, personal representatives and assigns of the
Stockholder. Except with respect to transfers of Series A Stock
and/or Series A Warrants by the Stockholder that do not result in
the Stockholder holding less than a majority of the shares of
Series A Stock and Series A Warrant shares then outstanding
(assuming the exercise of all outstanding Series A Warrants), the
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