Exhibit 10.5


 


REGISTRATION
RIGHTS AGREEMENT


 


This Registration
Rights Agreement (this “Agreement”) is made and entered into as of August 9,
2005, by and between Apogee Technology, Inc., a Delaware corporation (the “Company”),
and Laurus Master Fund, Ltd. (the “Purchaser”).


 


This Agreement is
made pursuant to the Securities Purchase Agreement, dated as of the date
hereof, by and between the Purchaser and the Company (as amended, modified or
supplemented from time to time, the “Securities Purchase Agreement”), and
pursuant to the Note and the Warrants referred to therein.


 


The Company and
the Purchaser hereby agree as follows:


 


1.             Definitions.  Capitalized terms used and not otherwise
defined herein that are defined in the Securities Purchase Agreement shall have
the meanings given such terms in the Securities Purchase Agreement.  As used in this Agreement, the following
terms shall have the following meanings:


 


“Commission”
means the Securities and Exchange Commission.


 


“Common Stock”
means shares of the Company’s common stock, par value $0.01 per share.


 


“Effectiveness Date”
means (i) with respect to the initial Registration Statement required to
be filed hereunder, a date no later than one hundred sixty five (165) days
following the date hereof and (ii) with respect to each additional
Registration Statement required to be filed hereunder, a date no later than
forty-five (45) days following the applicable Filing Date.


 


“Effectiveness Period”
has the meaning set forth in Section 2(a).


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and any successor
statute.


 


“Filing Date”
means, (x) with respect to the initial Registration Statement required to be
filed hereunder for: (i) the shares of Common Stock issuable upon
conversion of the Note, and (ii) the shares of Common Stock issuable upon
exercise of the Warrant issued by the Company to the Holder on the date hereof,
one hundred and twenty (120) days following the date hereof; and (y) in the
case of any subsequent Registration Statement required to be filed as a result
of either (i) the issuance by the Company to the Purchaser of any Warrant
after the date hereof or (ii) adjustments to the Fixed Conversion Price or
Exercise Price, as the case may be, resulting in the issuance of additional
shares of Common Stock to the Purchaser, forty five (45) days after the date of
such issuance or  such adjustment to the
Fixed Conversion Price or Exercise Price, as the case may be.


 


“Holder” or “Holders” means the Purchaser or any of its affiliates or
transferees to the extent any of them hold Registrable Securities, other than
those purchasing Registrable Securities in a market transaction.


 





















 


“Indemnified Party”
has the meaning set forth in Section 5(c).


 


“Indemnifying Party”
has the meaning set forth in Section 5(c).


 


“Note” has the
meaning set forth in the Securities Purchase Agreement.


 


“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.


 


“Prospectus”
means the prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a prospectus filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by the
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.


 


“Registrable Securities”
means the shares of Common Stock issued upon the conversion of the Note and
issuable upon exercise of the Warrants.


 


“Registration Statement”
means each registration statement required to be filed hereunder, including the
Prospectus therein, amendments and supplements to such registration statement
or Prospectus, including pre- and post-effective amendments, all exhibits
thereto, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.


 


“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
effect as such Rule.


 


“Rule 415”
means Rule 415 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same
effect as such Rule.


 


“Securities Act”
means the Securities Act of 1933, as amended, and any successor statute.


 


“Securities Purchase
Agreement” has the meaning given to such term in the Preamble
hereto.


 


“Trading Market”
means any of the NASD Over The Counter Bulletin Board, NASDAQ SmallCap Market,
the NASDAQ National Markets System, the American Stock Exchange or the New York
Stock Exchange.


 


“Warrants” means
the Common Stock purchase warrants issued in connection with the Securities
Purchase Agreement, whether on the date hereof or thereafter.


 


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2.             Registration.


 


(a)           On or prior to the Filing Date the Company shall
prepare and file with the Commission a Registration Statement covering the
Registrable Securities for a selling stockholder resale offering to be made on
a continuous basis pursuant to Rule 415. 
The Registration Statement shall be on Form S-3 (except if the
Company is not then eligible to register for resale the Registrable Securities
on Form S-3, in which case such registration shall be on another
appropriate form, e.g. Form S-1, in accordance herewith), the Company may
use such other forms as appropriate for Small Business Issuers, to the extent
the Company continues to meet that criteria. 
The Company shall cause each Registration Statement to become effective
and remain effective as provided herein. 
The Company shall use its reasonable commercial efforts to cause each
Registration Statement to be declared effective under the Securities Act as
promptly as possible after the filing thereof, but in any event no later than
the Effectiveness Date.  The Company
shall use its reasonable commercial efforts to keep each Registration Statement
continuously effective under the Securities Act until the date which is the
earlier date of when (i) all Registrable Securities have been sold or (ii) all
Registrable Securities covered by such Registration Statement may be sold
immediately without registration under the Securities Act and without volume
restrictions pursuant to Rule 144(k), as determined by the counsel to the
Company pursuant to a written opinion letter to such effect, addressed and
acceptable to the Company’s transfer agent and the affected Holders (the “Effectiveness
Period”).


 


(b)           If:  (i) any Registration Statement is not filed
on or prior to the applicable Filing Date; (ii) a Registration Statement filed
hereunder is not declared effective by the Commission by the applicable
Effectiveness Date; (iii) after a Registration Statement is filed with and
declared effective by the Commission, a Discontinuation Event (as hereafter
defined) shall occur and be continuing, or such Registration Statement ceases
to be effective (by suspension or otherwise) as to all Registrable Securities
to which it is required to relate at any time prior to the expiration of the
Effectiveness Period (without being succeeded immediately by an additional
registration statement filed and declared effective), for a period of time
which shall exceed 30 days in the aggregate per year or more than 20
consecutive calendar days (defined as a period of 365 days commencing on the
date the Registration Statement is declared effective); or (iv) the Common
Stock is not listed or quoted, or is suspended from trading on any Trading
Market for a period of three (3) consecutive Trading Days (provided the Company
shall not have been able to cure such trading suspension within 30 days of the
notice thereof or list the Common Stock on another Trading Market); (any such
failure or breach being referred to as an “Event,” and for purposes of clause (i)
or (ii) the date on which such Event occurs, or for purposes of clause (iii)
the date which such 30 day or 20 consecutive day period (as the case may be) is
exceeded, or for purposes of clause (iv) the date on which such three (3)
Trading Day period is exceeded, being referred to as “Event Date”), then as
partial relief for the damages to the Purchaser by reason of the occurrence of
any such Event (which remedy shall not be exclusive of any other remedies
available at law or in equity), the Company shall pay to the Purchaser for each
day that an Event has occurred and is continuing, an amount in cash equal to
one-thirtieth (1/30th) of the
product of: (A) the then outstanding principal amount of the Note multiplied by
(B) 0.015.  In the event the


 


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Company fails to make any payments pursuant to this Section 2(b) in
a timely manner, such payments shall bear interest at the rate of 1.5% per
month (prorated for partial months) until paid in full.


 


(c)           Within three (3) business days of the
Effectiveness Date, the Company shall cause its counsel to issue a blanket
opinion in the form attached hereto as Exhibit A, to the transfer agent
stating that the shares are subject to an effective registration statement and
can be reissued free of restrictive legend upon notice of a sale by the
Purchaser and confirmation by the Purchaser that it has complied with the
prospectus delivery requirements, provided that the Company has not advised the
transfer agent orally or in writing that the opinion has been withdrawn. Copies
of the blanket opinion required by this Section 2(c) shall be
delivered to the Purchaser within the time frame set forth above.


 


3.             Registration
Procedures.  If and whenever
the Company is required by the provisions hereof to effect the registration of
any Registrable Securities under the Securities Act, the Company will, as
expeditiously as possible:


 


(a)           prepare and file with the Commission a Registration
Statement with respect to such Registrable Securities, respond as promptly as
possible to any comments received from the Commission, and use commercially
reasonable efforts to cause the Registration Statement to become and remain
effective for the Effectiveness Period with respect thereto, and promptly provide
to the Purchaser copies of all filings and Commission letters of comment
relating thereto;


 


(b)           prepare and file with the Commission such
amendments and supplements to the Registration Statement and the Prospectus
used in connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all Registrable
Securities covered by such Registration Statement and to keep such Registration
Statement effective until the expiration of the Effectiveness Period applicable
to such Registration Statement;


 


(c)           furnish to the Purchaser such number of copies of
the Registration Statement and the Prospectus included therein (including each
preliminary Prospectus) as the Purchaser reasonably may request to facilitate
the public sale or disposition of the Registrable Securities covered by the
Registration Statement;


 


(d)           use its commercially reasonable efforts to register
or qualify the Purchaser’s Registrable Securities covered by such Registration
Statement under the securities or “blue sky” laws of such jurisdictions within
the United States as the Purchaser may reasonably request, provided, however,
that the Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any jurisdiction
where it is not so qualified or to consent to general service of process in any
such jurisdiction;


 


(e)           list the Registrable Securities covered by such
Registration Statement with any Trading Market on which the Common Stock of the
Company is then listed;


 


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(f)            immediately notify the Purchaser at any time when
a Prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which the Company has knowledge as a
result of which the Prospectus contained in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;
and


 


(g)           make available for inspection by the Purchaser and
any attorney, accountant or other agent retained by the Purchaser, all publicly
available, non-confidential financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company’s officers,
directors and employees to supply all publicly available, non-confidential
information reasonably requested by the attorney, accountant or agent of the
Purchaser.


 


4.             Registration
Expenses.  All expenses
relating to the Company’s compliance with Sections 2 and 3 hereof, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel and independent public accountants for the
Company, fees and expenses (including reasonable counsel fees) incurred in
connection with complying with state securities or “blue sky” laws, fees of the
NASD, transfer taxes, fees of transfer agents and registrars, fees of, and
disbursements incurred by, one counsel for the Holders, are called “Registration
Expenses”. All selling commissions applicable to the sale of Registrable
Securities, including any fees and disbursements of any special counsel to the
Holders beyond those included in Registration Expenses, are called “Selling
Expenses.”  The Company shall only be
responsible for all Registration Expenses.


 


5.             Indemnification.


 


(a)           In the event of a registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the Company
will indemnify and hold harmless the Purchaser, and its officers, directors and
each other person, if any, who controls the Purchaser within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which the Purchaser, or such persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement under which such Registrable Securities were
registered under the Securities Act pursuant to this Agreement, any preliminary
Prospectus or final Prospectus contained therein, or any amendment or
supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Purchaser, and each such person for any reasonable legal or other expenses
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case if and to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made
in conformity with information furnished by or on behalf of the Purchaser or
any such person in writing specifically for use in any such document.


 


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(b)           In the event of a registration of the Registrable
Securities under the Securities Act pursuant to this Agreement, the Purchaser
will indemnify and hold harmless the Company, and its officers, directors and
each other person, if any, who controls the Company within the meaning of the
Securities Act, against all losses, claims, damages or liabilities, joint or
several, to which the Company or such persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact which was
furnished in writing by the Purchaser to the Company expressly for use in (and
such information is contained in) the Registration Statement under which such
Registrable Securities were registered under the Securities Act pursuant to
this Agreement, any preliminary Prospectus or final Prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and each such person for any
reasonable legal or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action, provided,
however, that the Purchaser will be liable in any such case if and only
to the extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished in writing to
the Company by or on behalf of the Purchaser specifically for use in any such
document.  Notwithstanding the provisions
of this paragraph, the Purchaser shall not be required to indemnify any person
or entity in excess of the amount of the aggregate net proceeds received by the
Purchaser in respect of Registrable Securities in connection with any such
registration under the Securities Act.


 


(c)           Promptly after receipt by a party entitled to claim
indemnification hereunder (an “Indemnified Party”) of notice of the
commencement of any action, such Indemnified Party shall, if a claim for
indemnification in respect thereof is to be made against a party hereto
obligated to indemnify such Indemnified Party (an “Indemnifying Party”), notify
the Indemnifying Party in writing thereof, but the omission so to notify the
Indemnifying Party shall not relieve it from any liability which it may have to
such Indemnified Party other than under this Section 5(c) and shall
only relieve it from any liability which it may have to such Indemnified Party
under this Section 5(c) if and to the extent the Indemnifying Party
is prejudiced by such omission. In case any such action shall be brought
against any Indemnified Party and it shall notify the Indemnifying Party of the
commencement thereof, the Indemnifying Party shall be entitled to participate
in and, to the extent it shall wish, to assume and undertake the defense
thereof with counsel satisfactory to such Indemnified Party, and, after notice
from the Indemnifying Party to such Indemnified Party of its election so to
assume and undertake the defense thereof, the Indemnifying Party shall not be
liable to such Indemnified Party under this Section 5(c) for any
legal expenses subsequently incurred by such Indemnified Party in connection
with the defense thereof; if the Indemnified Party retains its own counsel,
then the Indemnified Party shall pay all fees, costs and expenses of such
counsel, provided, however, that, if the defendants in any such
action include both the Indemnified Party and the Indemnifying Party and the
Indemnified Party shall have reasonably concluded that there may be reasonable
defenses available to it which are different from or additional to


 


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those available to the Indemnifying Party or if the interests of the
Indemnified Party reasonably may be deemed to conflict with the interests of
the Indemnifying Party, the Indemnified Party shall have the right to select
one separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the reasonable expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the Indemnifying Party as incurred.


 


(d)           In order to provide for just and equitable
contribution in the event of joint liability under the Securities Act in any
case in which either (i) the Purchaser, or any officer, director or
controlling person of the Purchaser, makes a claim for indemnification pursuant
to this Section 5 but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 5 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of the Purchaser or such
officer, director or controlling person of the Purchaser in circumstances for
which indemnification is provided under this Section 5; then, and in each
such case, the Company and the Purchaser will contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject (after
contribution from others) in such proportion so that the Purchaser is
responsible only for the portion represented by the percentage that the public
offering price of its securities offered by the Registration Statement bears to
the public offering price of all securities offered by such Registration
Statement, provided, however, that, in any such case, (A) the
Purchaser will not be required to contribute any amount in excess of the public
offering price of all such securities offered by it pursuant to such
Registration Statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the Act)
will be entitled to contribution from any person or entity who was not guilty
of such fraudulent misrepresentation.


 


6.             Representations,
Warranties and Covenants.


 


(a)           The issued and outstanding Common Stock is
registered pursuant to Section 12(b) or 12(g) of the Exchange
Act and, except with respect to certain matters which the Company has disclosed
to the Purchaser on Schedule 4.21 to the Securities Purchase Agreement,
the Company has timely filed all proxy statements, reports, schedules, forms,
statements and other documents required to be filed by it under the Exchange
Act, as further described in the Securities Purchase Agreement.


 


(b)           The Company shall deliver to the Purchaser, and
file with the SEC (i) its restated Annual Report on Form 10-K for its
fiscal years ended December 31, 2003 and December 31, 2004 and (ii) its
restated Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31,
2005 and June 30, 2005 (collectively, the “Restated SEC Reports”), in each
case, no later than September 15, 2005. 
Each Restated SEC Report will be, at the time of its filing, in
substantial compliance with the requirements of its respective form and none of
the Restated SEC Reports, nor the financial statements (and the notes thereto)
included in the Restated SEC Reports, as of their respective filing dates, will
contain any untrue statement of a material fact or will omit to state a
material


 


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fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.  The financial statements of
the Company to be included in the Restated SEC Reports will comply as to form
in all material respects with applicable accounting requirements and the
published rules and regulations of the Commission or other applicable rules and
regulations with respect thereto.  Such
financial statements shall be prepared in accordance with generally accepted
accounting principles (“GAAP”) applied on a consistent basis during the periods
involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed)
and shall fairly present in all material respects the financial condition, the
results of operations and the cash flows of the Company and its subsidiaries,
on a consolidated basis, as of, and for, the periods presented in each such
Restated SEC Report.


 


(c)           The financial statements to be included in each
Restated SEC Report shall be approved, and declared final, by the auditors of
the Company the audit committee of the Board of Directors of the Company, in
each by no later than August 16, 2005 and approved by the Board of
Directors of the Company by no later than August 17, 2005.  Each such financial statement shall be
delivered to the Purchaser within two (2) business days of such final
approval and declaration, as the case may be.


 


(d)           The Common Stock is listed for trading on the American
Stock Exchange and satisfies all requirements for the continuation of such
listing, except as disclosed in the SEC Reports (as defined in the Securities
Purchase Agreement).


 


(e)           The Company shall at all times maintain a listing
on a Trading Market.


 


(f)            Neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf, has directly or indirectly made
any offers or sales of any security or solicited any offers to buy any security
under circumstances that would cause the offering of the Securities pursuant to
the Securities Purchase Agreement to be integrated with prior offerings by the
Company for purposes of the Securities Act which would prevent the Company from
selling the Common Stock pursuant to Rule 506 under the Securities Act, or
any applicable exchange-related stockholder approval provisions, nor will the
Company or any of its affiliates or subsidiaries take any action or steps that
would cause the offering of the Securities to be integrated with other
offerings.


 


(g)           The Warrants, the Note and the shares of Common
Stock which the Purchaser may acquire pursuant to the Warrants and the Note are
all restricted securities under the Securities Act as of the date of this
Agreement.  The Company will not issue
any stop transfer order or other order impeding the sale and delivery of any of
the Registrable Securities at such time as such Registrable Securities are
registered for public sale or an exemption from registration is available,
except as required by federal or state securities laws.


 


(h)           The Company understands the nature of the
Registrable Securities issuable upon the conversion of the Note and the
exercise of the Warrant and recognizes that the


 


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issuance of such Registrable Securities may have a potential dilutive
effect.  The Company specifically
acknowledges that its obligation to issue the Registrable Securities is binding
upon the Company and enforceable regardless of the dilution such issuance may
have on the ownership interests of other shareholders of the Company.


 


(i)            Except for agreements made in the ordinary course
of business, there is no agreement that has not been filed with the Commission
as an exhibit to a registration statement or to a form required to be filed by
the Company under the Exchange Act, the breach of which could reasonably be
expected to have a material and adverse effect on the Company and its
subsidiaries, or would prohibit or otherwise interfere with the ability of the
Company to enter into and perform any of its obligations under this Agreement
in any material respect.


 


(j)            The Company will at all times have authorized and
reserved a sufficient number of shares of Common Stock for the full conversion
of the Note and exercise of the Warrants.


 


7.             Miscellaneous.


 


(a)           Remedies.  In the event of a breach by the Company or by
a Holder, of any of their respective obligations under this Agreement, each
Holder or the Company, as the case may be, in addition to being entitled to
exercise all rights granted by law and under this Agreement, including recovery
of damages, will be entitled to specific performance of its rights under this
Agreement.


 


(b)           No Piggyback on
Registrations.  Except as and
to the extent specified in Schedule 7(b) hereto, neither the Company
nor any of its security holders (other than the Holders in such capacity
pursuant hereto) may include securities of the Company in any Registration
Statement other than the Registrable Securities, and the Company shall not
after the date hereof enter into any agreement providing any such right for
inclusion of shares in the Registration Statement to any of its security
holders.  Except as and to the extent
specified in Schedule 7(b) hereto, the Company has not previously
entered into any agreement granting any registration rights with respect to any
of its securities to any person or entity that have not been fully satisfied.


 


(c)           Compliance.  Each Holder covenants and agrees that it will
comply with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities pursuant to
the Registration Statement.


 


(d)           Discontinued Disposition.  Each Holder agrees by its acquisition of such
Registrable Securities that, upon receipt of a notice from the Company of the
occurrence of a Discontinuation Event (as defined below), such Holder will
forthwith discontinue disposition of such Registrable Securities under the
applicable Registration Statement until such Holder’s receipt of the copies of
the supplemented Prospectus and/or amended Registration Statement or until it
is advised in writing (the “Advice”) by the Company that the use of the
applicable Prospectus may be resumed, and, in either case, has received copies
of any additional or supplemental filings that are incorporated or deemed


 


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to be incorporated by reference in such Prospectus or Registration
Statement. The Company may provide appropriate stop orders to enforce the
provisions of this paragraph.  For
purposes of this Agreement, a “Discontinuation Event” shall mean (i) when
the Commission notifies the Company whether there will be a “review” of such
Registration Statement and whenever the Commission comments in writing on such
Registration Statement (the Company shall provide true and complete copies
thereof and all written responses thereto to each of the Holders); (ii) any
request by the Commission or any other Federal or state governmental authority
for amendments or supplements to such Registration Statement or Prospectus or
for additional information; (iii) the issuance by the Commission of any
stop order suspending the effectiveness of such Registration Statement covering
any or all of the Registrable Securities or the initiation of any Proceedings
for that purpose; (iv) the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any Proceeding for such purpose; and/or (v) the
occurrence of any event or passage of time that makes the financial statements
included in such Registration Statement ineligible for inclusion therein or any
statement made in such Registration Statement or Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires any revisions to such Registration Statement,
Prospectus or other documents so that, in the case of such Registration
Statement or Prospectus, as the case may be, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.


 


(e)           Piggy-Back Registrations.  If at any time during the Effectiveness
Period there is not an effective Registration Statement covering all of the
Registrable Securities and the Company shall determine to prepare and file with
the Commission a registration statement relating to an offering for its own
account or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans, then the Company shall send to each Holder
written notice of such determination and, if within fifteen (15) days after
receipt of such notice, any such Holder shall so request in writing, the
Company shall include in such registration statement all or any part of such
Registrable Securities such Holder requests to be registered to the extent the
Company may do so without violating registration rights of others which exist
as of the date of this Agreement, subject to customary underwriter cutbacks
applicable to all holders of registration rights and subject to obtaining any
required consent of any selling stockholder(s) to such inclusion under such
registration statement.


 


(f)            Amendments and Waivers.  The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the same shall be in writing and signed by the Company and the
Holders of the then outstanding Registrable Securities.  Notwithstanding the foregoing, a waiver or
consent


 


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to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of certain Holders and that does not directly
or indirectly affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities to which such waiver or consent
relates; provided, however, that the provisions of this sentence
may not be amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.


 


(g)           Notices.  Any notice or request hereunder may be given
to the Company or the Purchaser at the respective addresses set forth below or
as may hereafter be specified in a notice designated as a change of address
under this Section 7(g).  Any notice
or request hereunder shall be given by registered or certified mail, return
receipt requested, hand delivery, overnight mail, Federal Express or other
national overnight next day carrier (collectively, “Courier”) or telecopy
(confirmed by mail).  Notices and
requests shall be, in the case of those by hand delivery, deemed to have been
given when delivered to any party to whom it is addressed, in the case of those
by mail or overnight mail, deemed to have been given five (5) business
days after the date when deposited in the mail or with the overnight mail
carrier, in the case of a Courier, the next business day following timely
delivery of the package with the Courier, and, in the case of a telecopy, when
confirmed.  The address for such notices
and communications shall be as follows:


 


	
  If to the Company:

  	
   

  	
  Apogee
  Technology, Inc.

  
	
   

  	
   

  	
  129 Morgan Drive

  
	
   

  	
   

  	
  Norwood, MA 02062

  
	
   

  	
   

  	
  Telephone: 781-551-9450

  
	
   

  	
   

  	
  Facsimile: 781-440-9528

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Herbert M. Stein, Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Theodore M.
  Grannatt, Esq.

  
	
   

  	
   

  	
  Mintz Levin Cohn Ferris
  Glovsky and Popeo PC

  
	
   

  	
   

  	
  One Financial Center

  
	
   

  	
   

  	
  Boston, MA 02111

  
	
   

  	
   

  	
  Facsimile:

  	
  617-542-2241

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If to a Purchaser:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  To the address set
  forth under such Purchaser name on the signature pages hereto.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  



 


11





















 


	
   

  	
   

  	
  John E.
  Tucker, Esq.

  
	
   

  	
   

  	
  825 Third Avenue 14th
  Floor

  
	
   

  	
   

  	
  New York, NY 10022

  
	
   

  	
   

  	
  Facsimile:

  	
  212-541-4434

  
	
   

  	
   

  	
   

  
	
  If to any other Person who is then
  the registered Holder:

  	
   

  	
  To the address of such
  Holder as it appears in the stock transfer books of the Company

  



 


or such other address as may be designated in writing
hereafter in accordance with this Section 7(g) by such Person.


 


(h)           Successors and Assigns.  This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each Holder. 
The Company may not assign its rights or obligations hereunder without
the prior written consent of each Holder. 
Each Holder may assign their respective rights hereunder in the manner
and to the persons and entities as permitted under the Note and the Securities
Purchase Agreement.


 


(i)            Execution and Counterparts.  This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the same
agreement.  In the event that any
signature is delivered by facsimile transmission, such signature shall create a
valid binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such facsimile
signature were the original thereof.


 


(j)            Governing Law,
Jurisdiction and Waiver of Jury Trial.  THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.  The
Company hereby consents and agrees that the state or federal courts located in
the County of New York, State of New York shall have exclusion jurisdiction to
hear and determine any Proceeding between the Company, on the one hand, and the
Purchaser, on the other hand, pertaining to this Agreement or to any matter
arising out of or related to this Agreement; provided, that the
Purchaser and the Company acknowledge that any appeals from those courts may
have to be heard by a court located outside of the County of New York, State of
New York, and further  provided, that nothing in this Agreement
shall be deemed or operate to preclude the Purchaser from bringing a Proceeding
in any other jurisdiction to collect the obligations, to realize on the
Collateral or any other security for the obligations, or to enforce a judgment
or other court order in favor of the Purchaser. 
The Company expressly submits and consents in advance to such
jurisdiction in any Proceeding commenced in any such court, and the Company
hereby waives any objection which it may have based upon lack of personal
jurisdiction, improper venue or forum non conveniens.  The Company hereby waives personal service of
the summons, complaint and other process issued in any such Proceeding and
agrees that service of such


 


12





















 


summons, complaint and other process may be made by registered or
certified mail addressed to the Company at the address set forth in Section 7(g) and
that service so made shall be deemed completed upon the earlier of the Company’s
actual receipt thereof or three (3) days after deposit in the U.S. mails,
proper postage prepaid.  The parties
hereto desire that their disputes be resolved by a judge applying such
applicable laws.  Therefore, to achieve
the best combination of the benefits of the judicial system and of arbitration,
the parties hereto waive all rights to trial by jury in any Proceeding brought
to resolve any dispute, whether arising in contract, tort, or otherwise between
the Purchaser and/or the Company arising out of, connected with, related or
incidental to the relationship established between then in connection with this
Agreement.  If either party hereto shall
commence a Proceeding to enforce any provisions of this Agreement, the
Securities Purchase Agreement or any other Related Agreement, then the
prevailing party in such Proceeding shall be reimbursed by the other party for
its reasonable attorneys’ fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.


 


(k)           Cumulative Remedies.  The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.


 


(l)            Severability.  If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.


 


(m)          Headings.  The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


 


[Balance of page intentionally
left blank;

signature page follows]


 


13





















 


IN WITNESS
WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.


 


 


	
  APOGEE TECHNOLOGY, INC.

  	
  LAURUS MASTER FUND, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/

  	
   

  	
  By:

  	
  /s/

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  
	
   

  	
  825 Third Avenue, 14th Floor

  
	
   

  	
  New York, NY 10022

  
	
   

  	
  Attention:

  	
  David Grin

  
	
   

  	
  Facsimile:

  	
  212-541-4434

  
							



 


14





















 


EXHIBIT A


 


[             ,
200  ]


 


[Continental Stock Transfer
  & Trust Company

Two Broadway

New York, NY  10004

Attn:  William Seegraber]


 


Re:          Apogee Technology, Inc. Registration Statement on Form [S-1]


 


Ladies and Gentlemen:


 


As counsel to
Apogee Technology, Inc., a Delaware corporation (the “Company”), we have
been requested to render our opinion to you in connection with the resale by
the individuals or entitles listed on Schedule A attached hereto (the “Selling
Stockholders”), of an aggregate of            shares
(the “Shares”) of the Company’s Common Stock.


 


A Registration
Statement on Form [S-1] under the Securities Act of 1933, as amended (the “Act”),
with respect to the resale of the Shares was declared effective by the
Securities and Exchange Commission on [date]. 
Enclosed is the Prospectus dated [date]. 
We understand that the Shares are to be offered and sold in the manner
described in the Prospectus.


 


Based upon the
foregoing, upon request by the Selling Stockholders at any time while the
registration statement remains effective, it is our opinion that the Shares
have been registered for resale under the Act and new certificates evidencing
the Shares upon their transfer or re-registration by the Selling Stockholders
may be issued without restrictive legend. 
We will advise you if the registration statement is not available or
effective at any point in the future.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Company counsel]

  



 





















 


Schedule A to
Exhibit A


 




	
  Selling Stockholder

  	
   

  	
  Shares

  Being Offered