Escrow Agreement



 Exhibit 10.4 

ESCROW AGREEMENT 
 This Agreement is dated as of the 17th day of January, 2012 among Cambridge Heart, Inc., a Delaware corporation (the “Company”), the subscribers listed on Schedule 1 hereto (“Subscribers”), and
Grushko & Mittman, P.C. (the “Escrow Agent”): 
 W I T N E S
S E T H: 
 WHEREAS, the Company and Subscribers have entered into a Subscription Agreement calling
for the sale by the Company to the Subscribers of secured convertible Notes and Warrants for an aggregate purchase price of up to $4,000,000; and 
 WHEREAS, the parties hereto require the Company to deliver the Notes and Warrants against payment therefor, with such Notes and the Escrowed Funds to be delivered to the Escrow Agent, along with the other
documents, instruments and payments hereinafter described, to be held in escrow and released by the Escrow Agent in accordance with the terms and conditions of this Agreement; and 

WHEREAS, the Escrow Agent is willing to serve as escrow agent pursuant to the terms and conditions of this Agreement; 

NOW THEREFORE, the parties agree as follows: 
 ARTICLE I 
 INTERPRETATION 

1.1. Definitions. Capitalized terms used and not otherwise defined herein that are defined in the Subscription Agreement shall
have the meanings given to such terms in the Subscription Agreement. Whenever used in this Agreement, the following terms shall have the following respective meanings: 
  

	 	•	 	 “Additional Investment Rights” shall have the meaning set forth in Section 2(c) of the Subscription Agreement;



  

	 	•	 	 “Agreement” means this Agreement and all amendments made hereto and thereto by written agreement between the parties;



  

	 	•	 	 “Broker” shall mean Dawson James Securities Inc.; 



 

	 	•	 	 “Broker’s Fees” shall have the meaning set forth in Section 8(a) and on Schedule 8(a) to the Subscription Agreement;



  

	 	•	 	 “Collateral Agent” shall mean Collateral Agents, LLC; 



 

	 	•	 	 “Collateral Agent Fee” shall mean the set-up fee payable to the Collateral Agent described in Section 19(n) of the Security
Agreement; 


  

	 	•	 	 “Closing Date” shall have the meaning set forth in Section 1 of the Subscription Agreement; 










	 	•	 	 “Escrow Documents” shall mean the Company Documents and Subscriber Documents; 



 

	 	•	 	 “Legal Opinion” means the original signed legal opinion referred to in Section 6 of the Subscription Agreement;



  

	 	•	 	 “Lockup Agreement” shall have the meaning set forth in Section 9(x) of the Subscription Agreement; 



 

	 	•	 	 “Note” shall have the meaning set forth in the second recital to the Subscription Agreement; 



 

	 	•	 	 “Principal Amount” shall mean an aggregate of up to $4,000,000; 



 

	 	•	 	 “Security Agreement” shall have the meaning set forth in Section 3 of the Subscription Agreement and shall include the deliveries
required to be made therewith at the time of execution; 


  

	 	•	 	 “Subscriber Legal Fees” shall have the meaning set forth in Section 8(b) of the Subscription Agreement;



  

	 	•	 	 “Subscription Agreement” means the Subscription Agreement (and the exhibits and schedules thereto) entered into or to be entered into
by the Company and Subscribers in reference to the sale and purchase of the Notes and Warrants; 


  

	 	•	 	 “Warrants” shall have the meaning set forth in Section 2(b) of the Subscription Agreement; 



 

	 	•	 	 Collectively, the Additional Investment Rights, Legal Opinion, Lockup Agreements, Notes, Security Agreement, Warrants, and Subscription Agreement
signed and executed by all signators thereto other than the Subscribers, Broker’s Fees, Collateral Agent Fee and Subscriber Legal Fees are referred to as “Company Documents”; and 



 

	 	•	 	 Collectively, the Escrowed Payment, the Collateral Agent executed Security Agreement, and the Subscribers executed Subscription Agreement and Security
Agreement are referred to as “Subscriber Documents.” 


 1.2. Entire Agreement. This
Agreement along with the Company Documents and the Subscriber Documents to which the Subscriber and the Company or Subsidiary are a party constitute the entire agreement between the parties hereto pertaining to the Company Documents and Subscriber
Documents and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties. There are no warranties, representations and other agreements made by the parties in connection with the subject
matter hereof, except as specifically set forth in this Agreement, the Company Documents and the Subscriber Documents. 
 1.3.
Extended Meanings. In this Agreement words importing the singular number include the plural and vice versa; words importing the masculine gender include the feminine and neuter genders. The word “person” includes an individual, body
corporate, partnership, trustee or trust or unincorporated association, executor, administrator or legal representative. 
 1.4.
Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions hereof may be waived, only by a written instrument signed by all parties, or, in the case of a waiver,
by the party waiving compliance. Except as 

  
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expressly stated herein, no delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party
of any right, power or privilege hereunder preclude any other or future exercise of any other right, power or privilege hereunder. 
 1.5. Headings. The division of this Agreement into articles, sections, subsections and paragraphs and the insertion of headings are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement. 
 1.6. Law Governing this Agreement. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York without regard to conflicts of laws principles that would result in the application of the substantive laws of another jurisdiction. Any action brought by either party against the
other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of New York or in the federal courts located in the state of New York. Both parties and the individuals executing this Agreement and other
agreements on behalf of the Company agree to submit to the jurisdiction of such courts and waive trial by jury. The prevailing party (which shall be the party which receives an award most closely resembling the remedy or action sought) shall be
entitled to recover from the other party its reasonable attorney’s fees and costs. In the event that any provision of this Agreement or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable
statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or
unenforceable under any law shall not affect the validity or enforceability of any other provision of any agreement. 
 1.7.
Specific Enforcement, Consent to Jurisdiction. The Company and Subscribers acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement and to enforce specifically the terms and
provisions hereof or thereof, this being in addition to any other remedy to which any of them may be entitled by law or equity. Subject to Section 1.6 hereof, each of the Company and Subscribers hereby waives, and agrees not to assert in any
such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper.
Nothing in this Section shall affect or limit any right to serve process in any other manner permitted by law. 
 ARTICLE II

 DELIVERIES TO THE ESCROW AGENT 
 2.1. Company Deliveries. On or before the Closing Date, the Company shall execute and deliver the Company Documents to the Escrow Agent. 

2.2. Subscriber Deliveries. On or before the Closing Date, Subscribers shall execute and deliver the Subscription Agreements and
Security Agreement, shall cause the Collateral Agent to execute and deliver the Security Agreement, and shall deliver the Escrowed Payment in cash, to the Escrow Agent. The Escrowed Payment will be delivered pursuant to the following wire transfer
instructions: 
 Citibank, N.A. 
 1155 6th
Avenue 
 New York, NY 10036 
 ABA Number: 0210-00089 
 For Credit to: Grushko & Mittman, IOLA Trust
Account 
 Account Number: 9997242837 

  
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 2.3. Intention to Create Escrow Over Company Documents and Subscriber Documents. The
Subscribers and Company intend that the Company Documents and Subscriber Documents shall be held in escrow by the Escrow Agent pursuant to this Agreement for their benefit as set forth herein. 

2.4. Escrow Agent to Deliver Company Documents and Subscriber Documents. The Escrow Agent shall hold and release the Company
Documents and Subscriber Documents only in accordance with the terms and conditions of this Agreement. 
 ARTICLE III

 RELEASE OF COMPANY DOCUMENTS AND SUBSCRIBER DOCUMENTS 

3.1. Release of Escrow. Subject to the provisions of Section 4.2, the Escrow Agent shall release the Company Documents and
Subscriber Documents as follows: 
 (a) On the Closing Date, the Escrow Agent will simultaneously release the Company Documents
to the Subscribers and release the Subscriber Documents to the Company, except that: 
 (i) Broker’s Fees will be released
directly to the Broker; 
 (ii) Subscriber Legal Fees will be released directly to the Subscriber’s attorneys, 

(iii) the Collateral Agent Fee will be disbursed to the Collateral Agent; and 

(iv) the Security Agreement will be released to the Collateral Agent. 

(b) Notwithstanding the above, upon receipt by the Escrow Agent of joint written instructions (“Joint Instructions”)
signed by the Company and the Subscribers, it shall deliver the Company Documents and Subscriber Documents in accordance with the terms of the Joint Instructions. 
 (c) Anything herein to the contrary notwithstanding, upon receipt by the Escrow Agent of a final and non-appealable judgment, order, decree or award of a court of competent jurisdiction (a “Court
Order”), the Escrow Agent shall deliver the Company Documents and Subscriber Documents in accordance with the Court Order. Any Court Order shall be accompanied by an opinion of counsel for the party presenting the Court Order to the Escrow
Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect that the court issuing the Court Order has competent jurisdiction and that the Court Order is final and non-appealable. 

3.2. A Closing may take place on or before February 15, 2012. After February 15, 2012, the Escrow Agent will promptly return
the applicable Company Documents to the Company and return the Subscriber Documents to the Subscriber. 
 3.3.
Acknowledgement of Company and Subscriber; Disputes. The Company and the Subscribers acknowledge that the only terms and conditions upon which the Company Documents and Subscriber Documents are to be released are set forth in Sections 3 and 4
of this Agreement. The Company and the Subscribers reaffirm their agreement to abide by the terms and conditions of this Agreement with respect to the release of the Company Documents and Subscriber Documents. Any dispute with respect to the release
of the Company Documents and Subscriber Documents shall be resolved pursuant to Section 4.2 or by agreement between the Company and Subscribers. 

  
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 ARTICLE IV 
 CONCERNING THE ESCROW AGENT 
 4.1. Duties and Responsibilities of the
Escrow Agent. The Escrow Agent’s duties and responsibilities shall be subject to the following terms and conditions: 

(a) The Subscribers and Company acknowledge and agree that the Escrow Agent (i) shall not be responsible for or bound by, and shall
not be required to inquire into whether either the Subscribers or Company is entitled to receipt of the Company Documents and Subscriber Documents pursuant to any other agreement or otherwise; (ii) shall be obligated only for the performance of
such duties as are specifically assumed by the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or
document furnished to it hereunder and believed by the Escrow Agent in good faith to be genuine and to have been signed or presented by the proper person or party, without being required to determine the authenticity or correctness of any fact
stated therein or the propriety or validity or the service thereof; (iv) may assume that any person believed by the Escrow Agent in good faith to be authorized to give notice or make any statement or execute any document in connection with the
provisions hereof is so authorized; (v) shall not be under any duty to give the property held by Escrow Agent hereunder any greater degree of care than Escrow Agent gives its own similar property; and (vi) may consult counsel satisfactory
to Escrow Agent, the opinion of such counsel to be full and complete authorization and protection in respect of any action taken, suffered or omitted by Escrow Agent hereunder in good faith and in accordance with the opinion of such counsel.

 (b) The Subscribers and Company acknowledge that the Escrow Agent is acting solely as a stakeholder at their request and that
the Escrow Agent shall not be liable for any action taken by Escrow Agent in good faith and believed by Escrow Agent to be authorized or within the rights or powers conferred upon Escrow Agent by this Agreement. The Subscribers and Company, jointly
and severally, agree to indemnify and hold harmless the Escrow Agent and any of Escrow Agent’s partners, employees, agents and representatives for any action taken or omitted to be taken by Escrow Agent or any of them hereunder, including the
fees of outside counsel and other costs and expenses of defending itself against any claim or liability under this Agreement, except in the case of gross negligence or willful misconduct on Escrow Agent’s part committed in its capacity as
Escrow Agent under this Agreement. The Escrow Agent shall owe a duty only to the Subscribers and Company under this Agreement and to no other person. 
 (c) The Subscribers and Company jointly and severally agree to reimburse the Escrow Agent for outside counsel fees, to the extent authorized hereunder and incurred in connection with the performance of
its duties and responsibilities hereunder. 
 (d) The Escrow Agent may at any time resign as Escrow Agent hereunder by giving
five (5) days prior written notice of resignation to the Subscribers and the Company. Prior to the effective date of the resignation as specified in such notice, the Subscribers and Company will issue to the Escrow Agent a Joint Instruction
authorizing delivery of the Company Documents and Subscriber Documents to a substitute Escrow Agent selected by the Subscribers and Company. If no successor Escrow Agent is named by the Subscribers and Company, the Escrow Agent may apply to a court
of competent jurisdiction in the State of New York for appointment of a successor Escrow Agent, and to deposit the Company Documents and Subscriber Documents with the clerk of any such court. 

(e) Other than in connection with the Subscriber Legal Fees, the Escrow Agent does not have and will not have any interest in the Company
Documents and Subscriber Documents, but is serving only as escrow agent, having only possession thereof. The Escrow Agent shall not be liable for any loss resulting from the making or retention of any investment in accordance with this Escrow
Agreement. 

  
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 (f) This Agreement sets forth exclusively the duties of the Escrow Agent with respect to any
and all matters pertinent thereto and no implied duties or obligations shall be read into this Agreement. 
 (g) The Escrow
Agent shall be permitted to act as counsel for the Subscribers in any dispute as to the disposition of the Company Documents and Subscriber Documents, in any other dispute between the Subscribers and Company, whether or not the Escrow Agent is then
holding the Company Documents and Subscriber Documents and continues to act as the Escrow Agent hereunder. 
 (h) The provisions
of this Section 4.1 shall survive the resignation of the Escrow Agent or the termination of this Agreement. 
 4.2.
Dispute Resolution: Judgments. Resolution of disputes arising under this Agreement shall be subject to the following terms and conditions: 
 (a) If any dispute shall arise with respect to the delivery, ownership, right of possession or disposition of the Company Documents and Subscriber Documents, or if the Escrow Agent shall in good faith be
uncertain as to its duties or rights hereunder, the Escrow Agent shall be authorized, without liability to anyone, to (i) refrain from taking any action other than to continue to hold the Company Documents and Subscriber Documents pending
receipt of a Joint Instruction from the Subscribers and Company, or (ii) deposit the Company Documents and Subscriber Documents with any court of competent jurisdiction in the State of New York, in which event the Escrow Agent shall give
written notice thereof to the Subscribers and the Company and shall thereupon be relieved and discharged from all further obligations pursuant to this Agreement. The Escrow Agent may, but shall be under no duty to, institute or defend any legal
proceedings which relate to the Company Documents and Subscriber Documents. The Escrow Agent shall have the right to retain counsel if it becomes involved in any disagreement, dispute or litigation on account of this Agreement or otherwise
determines that it is necessary to consult counsel. 
 (b) The Escrow Agent is hereby expressly authorized to comply with and
obey any Court Order. In case the Escrow Agent obeys or complies with a Court Order, the Escrow Agent shall not be liable to the Subscribers and Company or to any other person, firm, corporation or entity by reason of such compliance. 

ARTICLE V 

GENERAL MATTERS 
 5.1. Termination. This escrow shall terminate upon the release of all of the Company Documents and Subscriber Documents or at any time upon the agreement in writing of the Subscribers and Company.

 5.2. Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted
hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air
courier service with charges prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other
communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number


  
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designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such
mailing, whichever shall first occur. The addresses for such communications shall be: 
  

	(a)	If to the Company, to: 


Cambridge Heart, Inc. 
 100 Ames Pond Drive 
 Tewksbury, MA 01876 

Attn: Vincenzo LiCausi, Chief Financial Officer 
 Fax: (978) 654-4501 
 With a copy by fax only to (which shall not constitute
notice): 
 Nutter, McClennen & Fish LLP 
 155 Seaport Blvd. 
 Boston, MA 02210 

Attn: Michelle L. Basil, Esq. 
 Fax (617) 310-9477 
  

	(b)	If to the Subscribers: to the addresses set forth on Schedule 1 

 With a copy by facsimile only to (which shall not constitute notice): 

Grushko & Mittman, P.C. 
 515 Rockaway Avenue 
 Valley Stream, New York 11581 

Fax: (212) 697-3575 
  

	(c)	If to Collateral Agent, to: 


Collateral Agent LLC 
 122 East 57th Street, 3rd Floor 
 New York, New York 10022 

Attn: General Counsel 
 Fax: (212) 245-9101 
  

	(d)	If to the Escrow Agent, to: 


Grushko & Mittman, P.C. 
 515 Rockaway Avenue 
 Valley Stream, New York 11581 

Fax: (212) 697-3575 
 or to
such other address as any of them shall give to the others by notice made pursuant to this Section 5.2. 

  
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 5.3. Interest. The Escrowed Payment shall not be held in an interest bearing account
nor will interest be payable in connection therewith. In the event the Escrowed Payment is deposited in an interest bearing account, any interest earned on the Escrowed Payment will be paid in the New York State Client Protection Fund or for a
similar purpose. 
 5.4. Assignment; Binding Agreement. Neither this Agreement nor any right or obligation hereunder
shall be assignable by any party without the prior written consent of the other parties hereto. This Agreement shall ensure to the benefit of and be binding upon the parties hereto and their respective legal representatives, successors and assigns.

 5.5. Invalidity. In the event that any one or more of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal, or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be in any
way impaired thereby, it being intended that all of the rights and privileges of the parties hereto shall be enforceable to the fullest extent permitted by law. 
 5.6. Counterparts/Execution. This Agreement may be executed in any number of counterparts and by different signatories hereto on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute but one and the same instrument. This Agreement may be executed by facsimile transmission and delivered by facsimile transmission. 

5.7. Agreement. Each of the undersigned states that he has read the foregoing Escrow Agreement and understands and agrees to it.


  
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 IN WITNESS WHEREOF, the undersigned have executed and delivered this Escrow
Agreement, as of the date first written above. 
  

			
	COMPANY:
	 CAMBRIDGE HEART, INC.
 a Delaware corporation

		
	By:	 	     /s/ Vincenzo LiCausi

		 	Name: Vincenzo LiCausi
		 	Title: Chief Financial Officer


  

			
	ESCROW AGENT:
	
	GRUSHKO & MITTMAN, P.C.
		
	By:	 	     /s/ Barbara Mittman

		 	Name: Barbara Mittman


  

			
	    SUBSCRIBERS:
	
	Name of Subscriber:
	
	Roderick de Greef
		
	By:	 	     /s/ Roderick de Greef



  

			
	Luis Martins
		
	By:	 	     /s/ Luis Martins



  

			
	Alpha Capital Anstalt
		
	By:	 	     /s/ Konrad Ackerman

		 	Name: Konrad Ackerman
		 	Title: Director


  

			
	Osiris Investment Partners, L.P.
		
	By:	 	     /s/ Paul Stuka

		 	Name: Paul Stuka
		 	Title: Principal and Managing Member


  

			
	Cranshire Capital Master Fund, Ltd.
		
	By:	 	     /s/ Keith A. Goodman

		 	Name: Keith A. Goodman
		 	Title: Authorized Signatory



  
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 SCHEDULE 1 

(SUBSCRIBERS) 
  

									
	 SUBSCRIBERS AND ADDRESSES
	  	PURCHASE
PRICE AND 
NOTE
PRINCIPAL	 	 	WARRANTS	 
	 Roderick de Greef

c/o Cambridge Heart, Inc.

100 Ames Pond Drive

Tewksbury, MA 01876
	  	$	250,000	* 	 	 	2,272,727	** 
	 Luis Martins

1886 Beacon Street

Waban/Newton, MA, 02468
	  	$	350,000	* 	 	 	3,181,818	** 
	 Alpha Capital Anstalt

Pradafant 7, 9490

Furstentums, Vaduz

Liechtenstein
	  	$	500,000	  	 	 	4,545,454	  
	 Cranshire Capital Master Fund, Ltd.

3100 Dundee Road, Suite 703

Northbrook, IL 60062
	  	$	50,000	  	 	 	454,545	  
	 Osiris Investment Partners, L.P.

1 Liberty Square, 5th Floor
 Boston, MA 02110
	  	$	170,000	  	 	 	1,545,454	  

  

	*	Represents the principal amount of Notes issuable upon cancellation at the Closing of the Senior Unsecured Convertible Promissory Note issued by the Company in favor of
such Subscriber on November 14, 2011. 


	**	Represents the number of share of common stock to be covered by the Warrant issuable to such Subscriber upon cancellation at the Closing of the Senior Unsecured
Convertible Promissory Note issued by the Company in favor of such Subscriber on November 14, 2011. 


  
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