Exhibit
10.16


 


Reproduced
as Executed


Redacted
Version


 


TRANSFER,
EMPLOYMENT AND ROYALTY AGREEMENT


 


                This TRANSFER, EMPLOYMENT AND ROYALTY AGREEMENT (the “Agreement”) is made as of May 11, 2004 (the “Effective Date”) between Apogee  Technology, Inc., a corporation organized and
existing under the laws of the State of Delaware, with its principal office at
129 Morgan Drive Norwood, MA 02062 (“Apogee”), and
Glenn Fricano, an individual residing at [* * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * ] (hereafter “Fricano”).


 


Recitals


 


                WHEREAS,
Fricano is knowledgeable concerning micro-electro-mechanical (:MEMS”) technology, and [* * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * *]  (“[* * *]”);


 


                WHEREAS, [* * *] is a [* * * * * * * * * * * * * * * * * * * * * * * * * * *
* *];


 


                WHEREAS, [* * * * * * * * * * * * * * * * * * * * *]is a [* * * * * * * * * * * * * * * * * * ] of [* * *],[* * * * * * * * * * * * * * * * * * * * *], among other
assets, certain MEMS technology, related documentation, and intellectual
property rights, as further defined below (the “MEMS
Technology and Documentation”);


 


                WHEREAS, Fricano [* * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ] (the “[* * * * * * * * * * * * * * *]”);


 


                WHEREAS, Fricano is willing, on the terms and conditions set
out below, to assign his rights under [* * * * * * * * * * * * * * * * * * * * * * *] to Apogee,
and to collect further materials concerning the MEMS Technology and
Documentation, perform due diligence, and obtain further evidence concerning
interests in the MEMS Technology and Documentation; and


 


                WHEREAS, Apogee wishes to receive such assignment from
Fricano, and to have Fricano collect such further materials and perform such
due diligence, and perform services for Apogee, on the terms set out below:


 


                NOW, THEREFORE, in furtherance of the foregoing Recitals and
in consideration of the mutual covenants and obligations set forth in this
Agreement, the Parties agree as follows:


 


Agreement


 


1.             Definitions.  Capitalized terms shall have the following
meanings:


 


                                                “Confidential
Information” shall have the meaning provided in Section 10
(Confidential Information).


 


                                                “Employment Agreement” shall have the meaning set out in
Section 4 (Employee Commitment).


 


                                                “Further Deliverables” shall have the meaning set out in
Section 5.1 (Further Deliverables).


 






Portions of this Exhibit
have been redacted, as indicated by * * * * * * *; these portions have been provided to the Securities and Exchange
Commission pursuant to a request for confidential treatment.


 


1

















 


                                                “Initial Deliverables” shall have the meaning set out in
Section 5 (Delivery; Continuing Obligations).


 


                                                “IP Rights” shall mean patent rights, copyrights, trademarks,
rights in mask works, trade secrets rights, and any other rights to exclude,
existing from time to time in a jurisdiction under patent law, copyright law,
trademark law, unfair competition law, moral rights law, trade-secret law,
semiconductor chip protection law, or other similar law.


 


                                                “Knowledge” shall mean the actual knowledge of the indicated
Party without any investigation or due diligence on the part of such person or
persons.


 


                                                “License Revenues” shall mean all of the royalties paid to
Apogee for licensing or similar exploitation, regardless of the form thereof,
of the MEMS Technology and Documentation (as defined below).


 


                                                “MEMS Division” shall mean the division Apogee is
establishing to design, develop, manufacture and sell MEMS Products.


 


                                                “MEMS Product” shall mean any (a) device or intellectual
property that cn be sold or licensed that relies for its content, design,
functionality or manufacturing process in any material respect on the MEMS
Technology and Documentation and (b) any product derived from the MEMS
Technology and Documentation.


 


                                                “MEMS Technology and Documentation” shall mean (a) the
materials, techniques, processes, and information described in Exhibit A,
including all associated IP Rights and (b) all technology developed by the MEMS
Division or otherwise by Apogee using the services of Fricano and others and
based on or originating from the rights being transferred pursuant to Section 3
hereof (Transfer of Rights).


 


                                                “Party” or “Parties” shall
mean Apogee, Fricano, or both Apogee and Fricano, as the context permits.


 


                                                “Release of Rights Agreement” shall have the meaning set out
in the Preamble.


 


                                                “Royalty Start Date” shall mean the first date on which
Apogee sells a MEMS Product.


 


                                                “Term” shall have the meaning set forth in Section 13 hereof
(Term).


 


2.                                      Fricano
Acquisition of Rights. 
Fricano acquired his right, title, and interest in and to the MEMS
Technology and Documentation and all associated IP Rights solely through the
Release of Rights Agreement.


 


3.                                      Transfer
of Rights.  In
consideration of Apogee’s obligations under this Agreement, Fricano hereby
assigns to Apogee all of his interest in the [* * * * * * * * * * * * * * ], and
represents that he has made no other assignment of such rights nor encumbered
the same.


 


4.                                      Employment
Commitment.  Apogee
agrees to employ Fricano, and Fricano agrees to accept and carry out such
employment on a full-time basis for a period of no less than one year,
commencing on the Effective Date, in accordance with the Confidentiality,
Non-Disclosure and 


 






Portions of this Exhibit
have been redacted, as indicated by * * * * * * *; these portions have been provided to the Securities and Exchange
Commission pursuant to a request for confidential treatment.


 


2

















 


Non-Solicitation Agreements,
a copy of which is annexed hereto as Exhibit B, and incorporated herein by such
reference as if fully set forth herein, and the provisions of Section 6
hereof.  Fricano’s compensation shall be
as separately agreed to by Fricano and Apogee.


 


5.                                      Delivery;
Continuing Obligations. 
Within two (2) business days of the Effective Date Fricano shall deliver
to Apogee all media in his possession as of the Effective Date embodying the
MEMS Technology and Documentation (the “Initial Deliverables”).


 


5.1                               Further
Deliverables.  After
delivery of the Initial Deliverables and in consideration of Apogee’s
obligations under Section 6 (Compensation), Fricano shall during the Term of
this Agreement, shall use reasonable business efforts, at the expense of
Apogee, to collect and compile media embodying the MEMS Technology and
Documentation, it being understood that such media, due to [* * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * *].  Upon
obtaining possession of any media embodying the MEMS Technology and
Documentation, Fricano shall promptly deliver such media to Apogee (“Further Deliverables”) and such Further Deliverables shall
be deemed transferred in accordance with Section 3 (Transfer of Rights).


 


5.2                               Costs.  Actual out-of-pocket costs associated with
the collection of media and delivery of Further Deliverables under Section 5.1
(Further Deliverables) shall be handled in accordance with the Employment
Agreement.  After expiration or termination
of the Employment Agreement (if applicable), Apogee will reimburse Fricano for
his actual out-of-pocket costs, upon submission of supporting invoices and
provided Fricano obtains written pre-approval for costs in excess of [* * * * * * * * *].


 


5.3                               Technical
Assistance.  Fricano
shall provide Apogee with such services and consultation as is reasonably
necessary to allow Apogee to test and evaluate the MEMS Technology and
Documentation.  If Fricano is not
employed at Apogee, such consulting services shall be at such rates and for
such periods as may be agreed to by Fricano and Apogee.


 


6.                                      Compensation.  In consideration of (i) the assignment by
Fricano to Apogee under Section 2 (Transfer of Rights), and (ii) Fricano’s
obligations under Section 4 (Employee Commitment), Apogee agrees as follows:


 


6.1                               Transfer
Compensation.  Apogee
shall pay to Fricano the sum of [* * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * ].


 


6.2                               MEMS
Product Royalties.  Within
forty-five (45) days of the end of each calendar quarter, Apogee shall make a
payment (the “Royalty Payment”) of Royalties (as
defined below) on MEMS Products calculated as set forth below:


 


6.2.1                     Definition
of Net Sales Revenue.  The term “Net Sales Revenue” [* * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * ].


 






Portions of this Exhibit
have been redacted, as indicated by * * * * * * *; these portions have been provided to the Securities and Exchange
Commission pursuant to a request for confidential treatment.


 


3

















 


6.2.2                     Royalties.  (a) [* * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * ].


 


                                                (b)  [* * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * *].


 


6.3                               Division
of Royalty Payments.  Royalty
Payments shall be allocated as follows:


 


6.3.1                     The [* * * * ]
Royalty.  [* * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * *}.


 


6.3.2                     The [* * * * ]
Royalty.  [* * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * *].


 


6.4                               Royalty
Report.  Simultaneous with the payment
of the Royalty, Apogee shall submit to Fricano a royalty report setting forth [* * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ].


 


6.5                               Method
of Payment; Overdue Payments.  Royalty Payments shall be made in U.S.
dollars by wire transfer or by other reasonable payments means.  [* * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ].


 


6.6                               Apogee
Commercialization Obligations.  Fricano is entering into this Agreement with
the understanding of both Fricano and Apogee that a typical cycle time to bring
a MEMS Product to market [* * * * * * * * * * * * * * * * * * * * *].  This means development needs to begin as soon
as possible after the Effective Date and should be reasonably close to
commercialization [*
* * * * * * * * * * * * * * * * * * * ].  In any event, Apogee intends to take
commercially reasonable steps to design, develop, manufacture and sell MEMS
Products, and Apogee commits to do so, provided, however, that its failure to
do so [* * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ] and releases
him from any obligations to Apogee which would interfere with the exercise by
him or others [* * *
* * * * * * * *].


 


7.                                      Fricano
Representations and Warranties.  Fricano represents and warrants that:


 


7.1                               Right
to Assign.  As of the
Effective Date, Fricano, to his knowledge, has the right to take the action
described in Section 3 hereof (Transfer of Rights).


 


7.2                               Non-Infringement.  As of the Effective Date, Fricano, to his
Knowledge, knows of no infringement or threatened infringement of third party
IP Rights by the MEMS Technology and Documentation, other than the matters set
out on Exhibit C, based solely on writings received by Fricano or statements
made to Fricano which he actually believes to be authoritative.


 






Portions of this Exhibit
have been redacted, as indicated by * * * * * * *; these portions have been provided to the Securities and Exchange
Commission pursuant to a request for confidential treatment.


 


4

















 


7.3                               No
Claims.  As of the Effective Date, to
Fricano’s Knowledge, no claim has been made and is continuing or threatened
that the use of any IP Right concerning the MEMS Technology and Documentation
is invalid or unenforceable or that the use of any such IP Right does or may
violate the rights of any third party, other than the claims set out on Exhibit
C, based solely on writings received by Fricano or statements made to Fricano
which he actually believes to be authoritative.


 


7.4                               Disclaimer
of Other Warranties.  EXCEPT AS
EXPRESSLY PROVIDED IN THIS SECTION 7 (Fricano Representations and Warranties),
FRICANO MAKES NO OTHER WARRANTIES (AND EXPRESSLY DISCLAIMS ANY AND ALL SUCH
WARRANTIES), WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.  APART FROM THE WARRANTIES SET
FORTH IN THIS SECTION 7, THE MEMS TECHNOLOGY AND DOCUMENTS IS PROVIDED “AS IS.”


 


7.5                               Remedy
for Material Breach of Warranty.  In the event of a material breach of the
representations and warranties set out in this Section, Apogee’s sole remedy
shall be recovery of not more than twenty five percent (25%) of the Transfer
Compensation paid to Fricano under Section 6.1 (Transfer Compensation).


 


8.                                      Conditional
[* * * * *
* * * * * * * * * *].  In the event that Apogee fails to perform the
Apogee Commercialization Obligations, Apogee shall, upon notice of such failure
which is not remedied within sixty (60) days thereafter, [* * * * * * * * * * * * * * * * * * * * *
* *] (with the right to grant [* * * * * * * * * * ])[* * * * * * * * * * * * * * * * * * * * *
* * * * * *].  Such [* * * * * * * * * * * * * * * * ] shall [* * * * * * * * * * * * * * *] on the same
terms and conditions as set out in this Agreement, and shall contain such other
provisions [* * * * *
* * * * * * * * * ].  In
connection therewith, Apogee shall make disclosure to Fricano of any part of
the then MEMS Technology and Documentation.


 


9.                                      Audit
Right.  Apogee shall keep separate,
auditable, books and records pertaining to the sale, distribution, and pricing
of MEMS Products.  Fricano shall be
entitled to examine such books and records, through a licensed public
accountant chosen by him, who shall not disclose the records to him, but shall
provide him with their conclusions (the “Auditors”).  The Auditors shall be required to signed an
appropriate non-disclosure agreement, and shall perform their task at times
agreed in advance between the Parties during normal business hours, and not
more frequently than once per calendar year during the time Apogee is required
to make royalty payments to Fricano, and for one year thereafter.  Any audit shall be at Fricano’s expense,
unless such audit demonstrates that Apogee’s [* * * * * * * * ] calculation was incorrect
by more than ten (10) percent in Apogee’s favor, in which case Apogee shall
reimburse Fricano the reasonable costs of the audit.


 


10.                               Confidential
Information.  The
following terms and conditions govern use and protection of confidential
information that one Party (the “Disclosing Party”)
provides or discloses to the other Party (the “Receiving
Party”) pursuant to this Agreement:


 


10.1                        Definition
of Confidential Information.  The term “Confidential
Information” shall mean (a) the MEMS Technology and Documentation;
(b) non-public information and materials (in any medium), including but not
limited to any software, semiconductor chip design, design documentation,
business, financial or strategic plans or information of the 


 






Portions of this Exhibit
have been redacted, as indicated by * * * * * * *; these portions have been provided to the Securities and Exchange
Commission pursuant to a request for confidential treatment.


 


5

















 


Disclosing Party; (c)
information subject to an obligation of confidence to a third party; and (d)
any information marked confidential, restricted or proprietary by a Party or by
any other person to whom such party has an obligation of confidence; provided,
however, that the failure of either Party to so mark any material shall not
relieve the Receiving Party of the obligation to maintain the confidentiality
of any unlegended material which the Receiving Party knows or should know
contained Confidential Information. The financial terms of this Agreement shall
be Confidential Information of both Parties.


 


10.2                        Limitations
on Use and Disclosure.  The
Receiving Party shall not use Confidential Information of the Disclosing Party
except for purposes of this Agreement. 
The Receiving Party shall not disclose Confidential Information received
from the Disclosing Party; provided that the Receiving Party may disclose such
information to its employees if such personnel have a legitimate need to know
such information and are bound in writing by confidentiality obligations not
materially less restrictive than those set forth in this Agreement.


 


10.3                        Standard
of Care.  The Receiving Party will use
the same degree of care and discretion (but in any event no less than a
reasonable degree of care and discretion) to avoid unauthorized disclosure or use
of Confidential Information received from the Disclosing Party as the Receiving
Party uses to protect its own information of a similar nature from unauthorized
disclosure or use.


 


10.4                        Exclusions.  Without granting any right or license, the
Parties agree that no obligation of nondisclosure or nonuse under this
Agreement will apply to any information (with the burden of proof upon the
Receiving Party) (i) that the Receiving Party already rightfully possesses at
the time of the disclosure by the Disclosing Party or rightfully receives from
a third party, (ii) that the Receiving Party develops independently and without
reference to any Confidential Information of the Disclosing Party, or (iii)
that is or becomes available to the public other than by breach of this
Agreement.  The Receiving Party may
disclose Confidential Information received from the Disclosing Party to the
extent that the Receiving Party is required by any judicial or government
authority to disclose such information, provided the Receiving Party gives the
Disclosing Party prompt notice of such requirements and reasonably cooperates
with the Disclosing Party in attempting to limit such required disclosure.


 


10.5                        Return
of Confidential Information.  Upon termination or expiration of this Agreement
the Receiving Party will promptly return all documents and materials containing
Confidential Information that were provided to it by Disclosing Party or will
certify to the destruction of such materials.


 


11.                               Limitation
of Liability.  IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT
LIMITATION, LOSS OF PROFITS OR OTHER ECONOMIC LOSS, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR A BREACH OF SECTION 10
(Confidential Information).


 


12.                               No
Implied Licenses.  Any license
concerning the [* * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ] under this
Agreement must be expressly 






Portions of this Exhibit
have been redacted, as indicated by * * * * * * *; these portions have been provided to the Securities and Exchange
Commission pursuant to a request for confidential treatment.


 


6

















 


provided herein, and there
shall be no licenses implied pursuant to this Agreement, based on any course of
conduct or other construction or interpretation thereof.


 


13.                               Term.  The term (“Term”) of this Agreement shall
commence on the Effective Date and shall continue in force until all of the
provisions hereof have been performed as set forth herein, unless sooner
terminated in accordance with Section 14 (Termination).


 


14.                               Termination.  Without prejudice to other remedies, a Party
may terminate this Agreement on the occurrence of one or more of the following:


 


14.1                        Material
Breach.  In the event that either of
the Parties is in material breach of any obligation under this Agreement, the
non-breaching Party may terminate this Agreement upon (i) providing the other
Party with written notice of the breach (a “Notice of
Breach”) and (ii) providing thereafter a ninety (90) day opportunity
to cure beginning on the date of receipt by the alleged breaching Party of the
Notice of Breach.


 


14.2                        Insolvency.  In the event a Party shall become insolvent,
shall make an assignment for the benefit of creditors, or shall have a petition
in bankruptcy filed for or against it, the other Party shall have the right to
terminate this entire Agreement immediately upon providing written notice of
such termination.


 


14.3                        Survival.  The rights and obligations of the Parties
under the following Sections shall survive the termination or expiration of
this Agreement:  Section 2 (Transfer of
Rights); Section 7 (Fricano Representations and Warranties); Section 9 (Audit
Right) (for the period specified in such section); Section 10 (Confidential
Information);; Section 11 Limitation of Liability); and Section 15 (General).


 


15.                               General


 


15.1                        No
Agency.  Nothing contained herein shall
be construed as creating any agency, partnership, or other form of joint
enterprise between the Parties.


 


15.2                        Press
Releases.  Upon
obtaining the consent of the other Party (which consent shall not be
unreasonably withheld or delayed), either Party shall be entitled to issue
press releases concerning this Agreement.


 


15.3                        Governing
Law.  This Agreement shall be
governed in all respects by the laws of Commonwealth of Massachusetts without
regard to its conflicts of law principles.


 


15.4                        Forum.  In the event of a dispute hereunder, the same
shall be submitted to binding arbitration under the rules of the American
Arbitration Association in the city of Boston, State of Massachusetts or the
City of New York, State of New York.  The
Party prevailing shall be entitled to recover reasonable legal fees and
expenses from the Party not prevailing.


 


15.5                        Notices.  In any case where any notice or other
communication is required or permitted to be given hereunder, such notice or
communication will be given in writing by personal delivery or national
overnight delivery service, addressed to the respective Party at the addresses
indicated above.  All such notices or
other communications will be deemed to 


 






Portions of this Exhibit
have been redacted, as indicated by * * * * * * *; these portions have been provided to the Securities and Exchange
Commission pursuant to a request for confidential treatment.


 


7

















 


have been given and received
(i) upon receipt if personally delivered or sent by registered mail; or (ii)
when delivery is confirmed if sent by overnight delivery service


 


15.6                        Force
Majeure.  Neither Party shall be liable
hereunder by reason of any failure or delay in the performance of its
obligations hereunder on account of strikes, shortages, riots, insurrection,
fires, flood, storm, explosions, acts of God, acts of terrorism, war,
governmental action, labor conditions, earthquakes, material shortages or any
other cause which is beyond the reasonable control of such Party.


 


15.7                        Waiver.  The failure of either Party to require
performance by the other party of any provision hereof shall not affect the
full right to require such performance at any time thereafter; nor shall the
waiver by either party of a breach of any provision hereof be taken or held to
be a waiver of the provision itself.


 


15.8                        Severability.  In the event that any provision of this
Agreement shall be unenforceable or invalid under any applicable law or be so
held by applicable court decision, such unenforceability or invalidity shall
not render this Agreement unenforceable or invalid as a whole, and, in such
event, such provision shall be changed and interpreted so as to best accomplish
the objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.


 


15.9                        Assignment.  Neither this Agreement nor any rights or
obligations of either Party shall be assigned without the prior written
approval of the other Party except as follows: 
(a) Apogee shall assign its rights and obligations hereunder to any
entity that acquires its business and assets, or such portion thereof as is
relevant to the subject matter of this Agreement; and (b) Fricano may assign
any right to any payment to him hereunder.


 


15.10                 Counterparts.  This Agreement may be executed simultaneously
in two or more counterparts, each of which will be considered an original, but
all of which together will constitute one and the same instrument.


 


15.11                 Entire
Agreement.  This
Agreement together with the exhibits hereto completely and exclusively states
the agreement of the Parties regarding its subject matter and supersedes, and
its terms govern, all prior proposals, agreements, or other communications
between the parties, oral or written, regarding such subject matter.  This Agreement shall not be modified except
by a subsequently dated written amendment signed on behalf of each of the
parties.


 






Portions of this Exhibit
have been redacted, as indicated by * * * * * * *; these portions have been provided to the Securities and Exchange
Commission pursuant to a request for confidential treatment.


 


8

















 


                IN WITNESS WHEREOF, the parties hereto have caused this
Transfer and Royalty Agreement to be executed by their duly authorized
representatives.


 




	
  Fricano:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/

  	
  G. Fricano

  
	
  Date:

  	
   

  	
  May 11, 2004

  
	
   

  	
   

  	
   

  
	
  Apogee Technology,

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  
	
  Title:

  	
   

  	
  Chief Operating Officer

  
	
  Date:

  	
   

  	
  May 11, 2004

  






 


 






Portions of this Exhibit
have been redacted, as indicated by * * * * * * *; these portions have been provided to the Securities and Exchange
Commission pursuant to a request for confidential treatment.


 


9