Exhibit
10.15


 


SETTLEMENT
AGREEMENT


 


                                This
Settlement Agreement is entered into and effective as of the 31st
day of December, 2005, by and among Apogee Technology, Inc., a Massachusetts
corporation (“Apogee”) and National Hybrid, Inc., a New York corporation
(“National”).


 


                                WHEREAS,
on or about November 3, 2004, Apogee filed a Complaint in the United States
District Court for the Eastern District of New York (the “Court”), entitled Apogee
Technology, Inc. v. National Hybrid, Inc., Civil Action No. 04 CV 4764 (AS)
(ETB) (the “Action”) seeking, inter  alia, injunctive and
declaratory relief and damages with respect to certain intellectual property
and the physical manifestations thereof previously owned by Standard MEMS,
Inc., a Delaware corporation (“SMI”) and alleged to have been assigned to
Apogee’s assignor, Glenn Fricano (“Fricano”), by Kavlico Corporation
(“Kavlico”), as the holder of a blanket security interest in the assets of SMI,
in accordance with a certain Release of Rights Agreement dated March 31, 2004
(the “SMI Intellectual Property”);


 


                                WHEREAS,
National denied the material allegations of the Complaint and asserted
Counterclaims against Apogee in the Action seeking, inter  alia,
declaratory relief and money damages with respect to the Intellectual property
alleging it is the rightful owner of the assets of SMI, including the SMI
Intellectual Property, in accordance with a certain Equipment Sale and Hold
Harmless Agreement between National and Kavlico, dated December 23, 2003;


 


                                WHEREAS,
National filed and served a Third Party Complaint upon Kavlico seeking, inter
alia, money damages and indemnification from Kavlico;


 


                                WHEREAS,
National and Apogee have agreed to settle their disputes without resort to
further litigation, and National has agreed to release all its claims against
Kavlico set forth in the Third Party Complaint, on the following terms and
conditions.


 


                                NOW, THEREFORE, in consideration of
the foregoing promises and the mutual covenants and obligations contained
herein, the parties hereto agree as follows:


 


1.             Subject to the provisions of paragraphs 3, 4 and 5
hereof, National: (a) withdraws any claim to the SMI Intellectual Property, (b)
will not dispute any right, title and interest of Apogee, if any, to the SMI
Intellectual Property, (c) assigns to Apogee, without representation or
warranty, all of its right, title and interest, if any, in the SMI Intellectual
Property, and (d) represents and warrants to Apogee that National has not
previously made an assignment of, or encumbered, the SMI Intellectual Property
or any interest therein.


 


2.             Apogee represents warrants to National that Apogee (a)
has purchased from Fricano all of the interest in the SMI Intellectual Property
that Fricano purchased from Kavlico, and (b) Apogee has not made an assignment
of, or encumbered, the SMI Intellectual Property, or any interest therein.


 


3.             Apogee hereby agrees that it will not assert any claim
to the equipment and other tangible assets of SMI purchased by National from
Kavlico pursuant to an Equipment Sale and Hold Harmless Agreement between
National and Kavlico other than the Excluded Items as defined below
(collectively, the “SMI Tangible Property”).


 

















 


4.             Apogee agrees that National may, without notice to
Apogee and without restriction of any nature whatsoever, sell, transfer,
dispose, hypothecate and/or alienate any and all of the SMI Tangible Property,
in “As Is” condition or otherwise, including but not limited to any and all of
the contents, software, operating systems and any and all of the component
and/or accessory parts thereto absolutely free and clear of any claim by
Apogee, excluding however; any (a) notebooks, (b) drawings, (c) other paper
files or (d) “floppy disks” expressly embodying the SMI Intellectual Property
which Apogee will identify and take possession of during the Inspection Period
(collectively, the “Excluded Items”). 
Apogee agrees that it shall not assert any claim against any of
National’s successors, assignees or transferees, including but not limited to
any bona fide purchasers of the SMI Tangible Property upon compliance by
National with Paragraph 6 hereof.


 


5.             Apogee hereby acknowledges that, prior to any sale,
transfer or any other disposition of the SMI Tangible Property, National is not
obligated to remove, disassemble, decommission or take any action whatsoever
with respect to any contents, software, operating systems, information,
formulations or any other material included in or connected with the Tangible
Property except allowing Apogee to take possession of the Excluded Items during
the Inspection Period as set forth in Paragraph 6 hereof.


 


6.             Commencing on the execution hereof and within twenty
(20) days thereafter (the “Inspection Period”), Apogee may, at its own cost and
expense, during normal business hours and without disrupting the operations of
National, inspect National’s warehouse and/or facility to assemble and gather
the Excluded Items that may be located at such warehouse or facility.  During the Inspection Period, National will,
at National’s expense, provide one or more engineering personnel (“National
Engineer(s)”) to assist Apogee’s representative(s), in any reasonable inquiry
and will arrange reasonable access to the SMI Tangible Property to permit a
search for the Excluded Items to be completed within the Inspection
Period.  Apogee’s representative(s) shall
segregate what are believed to be Excluded Items and provide a list thereof to
the National Engineers.  If the National
Engineers shall disagree with the Apogee representatives as to whether something
is to be an Excluded Item, within five (5) business days after receiving such
list, the immediate possession of the disputed Excluded Items shall be given to
National’s counsel.  Unless such dispute
is resolved by the parties, by the end of 30 days after the Inspection Period
the dispute shall be resolved by the Court, which shall retain jurisdiction to
enforce this Agreement.  Such inspection
shall not require National to operate, start up, decommission or otherwise
modify any of the SMI Tangible Property.


 


7.             National and Apogee each hereby release and forever
discharge the other, its officers, employees, stockholders, directors,
successors, assigns, agents, personal representatives, transferees or persons
or entities affiliated with the aforementioned and any and all persons acting
on their behalf of any and all claims or causes of actions which it asserted or
could have been asserted against the other, its officers, employees,
stockholders, directors, successors, assigns, agents, personal representatives,
transferees or persons or entities affiliated with the aforementioned and any
and all persons action on their behalf arising out of or relating to the SMI
Intellectual Property or the SMI Tangible Property, except that this Settlement
Agreement is not subject to such release.


 


2

















 


8.             Contemporaneously herewith the parties, and Kavlico,
shall execute a Stipulation and Order of Discontinuance with Prejudice (the
“Stipulation”) so that it may be submitted to the Court discontinuing the
Action and the Third Party Complaint. The Stipulation shall provide that the
Court will retain jurisdiction to enforce this Settlement Agreement. The
parties agree to take all necessary steps to procure such Order of Discontinuance
with Prejudice should Kavlico not execute such stipulation.


 


9.             This Settlement Agreement and the Stipulation and Order
of Discontinuance with Prejudice referred to herein and executed
contemporaneously herewith, shall constitute the entire agreement between the
parties with respect to the subject matter hereof and merge all prior
discussions and negotiations between them.


 


10.           No party hereto has relied on any statement of
representations not expressly set forth herein. 
This Agreement is a full, final and exclusive expression of the
agreement of the parties hereto and supercedes all prior agreements,
understandings, proposals and communications, oral or written, of either party
with respect to the subject matter hereof and the transactions contemplated
hereby.


 


11.           This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns.


 


12.           The parties hereto agree to execute and deliver, or cause
to be executed and delivered, such further instruments or documents and take
such other action as may be required to effectively carry out the transactions
of the settlement contemplated herein.


 


13.           This Settlement Agreement may not be changed except by a
writing signed by the parties hereto.


 


14.           The parties hereto hereby declare and represent that in
effectuating this Settlement Agreement they have, and counsel of their choice
have, each carefully read the following language, know and understand the
contents thereof, and have freely and voluntarily affixed their signatures
hereto.


 


15.           This Agreement and the transactions and obligations
arising hereunder shall be governed by and construed and enforced in accordance
with the laws of the State of New York without regard to the principles of
conflicts of law.


 


16.           This Agreement may be executed in any number of
counterparts and/or via facsimile signature, each of which shall be deemed to
be an original, all of which together shall be deemed to be one and the same
Settlement Agreement.


 




	
   

  	
  APGOEE TECHNOLOGY, INC.

  	
   

  	
   

  	
   

  	
  NATIONAL HYBRID, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Roy Nardin

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Pres & CEO

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


3

















 




	
   

  	
  RUSKIN MOSCOU FALTISCHEK,
  P.C.

  	
   

  	
   

  	
   

  	
  MORITT HOCK HAMROFF &

  
	
   

  	
  Attorneys for Apogee
  Technology Corp.

  	
   

  	
   

  	
   

  	
  HORWITZ LLP

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Attorneys for National
  Hybrid, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Stephen E. Kesselman

  	
   

  	
   

  	
  By:

  	
  /s/ Michael S. Re

  
	
   

  	
  Stephen E. Kessleman, Esq.

  	
   

  	
   

  	
   

  	
  Michael S. Re, Esq.

  
	
   

  	
  1425 EAB Plaza

  	
   

  	
   

  	
   

  	
  400 Garden City Plaza

  
	
   

  	
  Uniondale, New York 11556

  	
   

  	
   

  	
   

  	
  Garden City, New York
  11530

  
	
   

  	
  (516) 663-6600

  	
   

  	
   

  	
   

  	
  (516) 873-2000

  






 


 


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  STATE OF MASSACHUSETTS

  	
  )

  	
   

  
	
   

  	
  )

  	
  ss.:

  
	
  COUNTY OF

  	
  )

  	
   

  



 


 


                On
this          day of                 ,
2006, before me personally came David B. Meyers to me known to be the President
of APOGEE TECHNOLOGY, INC., a corporation, one of the parties to the action and
who executed the foregoing instrument, and acknowledged that he executed the
same.


 




	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Notary Public

  






 


	
  STATE OF NEW YORK

  	
  )

  	
   

  
	
   

  	
  )

  	
  ss.:

  
	
  COUNTY OF SUFFOLK

  	
  )

  	
   

  



 


 


                On
this  27th day of   February,
2006, before me personally came Roy Nardin to me known to be the President of
NATIONAL HYBRID INC., a corporation, one of the parties to the action and who
executed the foregoing instrument, and acknowledged that he executed the same.


 


 


 




	
   

  	
   

  	
   

  	
   

  	
   

  	
  /s/ Carol Ann Klemm

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Notary Public

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Suffolk Cnty. #52-4637587

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Carol Ann Klemm

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Notary Public - N.Y.S. - EXP. 12/31/06

  






 


 


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