**Exhibit10.16**

 

Reproducedas Executed

RedactedVersion

 

**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 andexisting under the laws of the State of Delaware, with its principal office at129 Morgan Drive Norwood, MA 02062 (“**Apogee**”), andGlenn 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 otherassets, certain MEMS technology, related documentation, and intellectualproperty rights, as further defined below (the “**MEMSTechnology and Documentation**”);

 

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

 

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

 

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

 

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

 

**Agreement**

 

**1.             Definitions**.  Capitalized terms shall have the followingmeanings:

 

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

 

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

 

                                                “**Further Deliverables**” shall have the meaning set out inSection 5.1 (Further Deliverables).

 

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

 

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                                                “**Initial Deliverables**” shall have the meaning set out inSection 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 indicatedParty without any investigation or due diligence on the part of such person orpersons.

 

                                                “**License Revenues**” shall mean all of the royalties paid toApogee 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 isestablishing to design, develop, manufacture and sell MEMS Products.

 

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

 

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

 

                                                “**Party**” or “**Parties**” shallmean Apogee, Fricano, or both Apogee and Fricano, as the context permits.

 

                                                “**Release of Rights Agreement**” shall have the meaning set outin the Preamble.

 

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

 

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

 

**2.**                                      **FricanoAcquisition of Rights**. Fricano acquired his right, title, and interest in and to the MEMSTechnology and Documentation and all associated IP Rights solely through theRelease of Rights Agreement.

 

**3.**                                      **Transferof Rights**.  Inconsideration of Apogee’s obligations under this Agreement, Fricano herebyassigns to Apogee all of his interest in the [* * * * * * * * * * * * * * ], andrepresents that he has made no other assignment of such rights nor encumberedthe same.

 

**4.**                                      **EmploymentCommitment**.  Apogeeagrees to employ Fricano, and Fricano agrees to accept and carry out suchemployment 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 

 

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

 

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

 

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

 

**5.1**                               **FurtherDeliverables**.  Afterdelivery of the Initial Deliverables and in consideration of Apogee’sobligations under Section 6 (Compensation), Fricano shall during the Term ofthis Agreement, shall use reasonable business efforts, at the expense ofApogee, to collect and compile media embodying the MEMS Technology andDocumentation, it being understood that such media, due to [* * * * * * * * * * * * * * * * * * * * ** * * * * * * * * * * *].  Uponobtaining possession of any media embodying the MEMS Technology andDocumentation, Fricano shall promptly deliver such media to Apogee (“**Further Deliverables**”) and such Further Deliverables shallbe deemed transferred in accordance with Section 3 (Transfer of Rights).

 

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

 

**5.3****                              ****TechnicalAssistance**.  Fricanoshall provide Apogee with such services and consultation as is reasonablynecessary to allow Apogee to test and evaluate the MEMS Technology andDocumentation.  If Fricano is notemployed at Apogee, such consulting services shall be at such rates and forsuch periods as may be agreed to by Fricano and Apogee.

 

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

 

**6.1****                              ****TransferCompensation**.  Apogeeshall pay to Fricano the sum of [* * * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * ].

 

**6.2****                              ****MEMSProduct Royalties**.  Withinforty-five (45) days of the end of each calendar quarter, Apogee shall make apayment (the “**Royalty Payment**”) of Royalties (asdefined below) on MEMS Products calculated as set forth below:

 

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

 

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

 

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

 

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

 

**6.3****                              ****Divisionof Royalty Payments**.  RoyaltyPayments shall be allocated as follows:

 

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

 

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

 

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

 

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

 

**6.6****                              ****ApogeeCommercialization Obligations**.  Fricano is entering into this Agreement withthe understanding of both Fricano and Apogee that a typical cycle time to bringa MEMS Product to market [* * * * * * * * * * * * * * * * * * * * *].  This means development needs to begin as soonas possible after the Effective Date and should be reasonably close tocommercialization [** * * * * * * * * * * * * * * * * * * ].  In any event, Apogee intends to takecommercially reasonable steps to design, develop, manufacture and sell MEMSProducts, and Apogee commits to do so, provided, however, that its failure todo so [* * * * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ] and releaseshim from any obligations to Apogee which would interfere with the exercise byhim or others [* * ** * * * * * * *].

 

**7.****                                     ****FricanoRepresentations and Warranties**.  Fricano represents and warrants that:

 

**7.1****                              ****Rightto Assign**.  As of theEffective Date, Fricano, to his knowledge, has the right to take the actiondescribed in Section 3 hereof (Transfer of Rights).

 

**7.2****                              ****Non-Infringement**.  As of the Effective Date, Fricano, to hisKnowledge, knows of no infringement or threatened infringement of third partyIP Rights by the MEMS Technology and Documentation, other than the matters setout on Exhibit C, based solely on writings received by Fricano or statementsmade to Fricano which he actually believes to be authoritative.

 

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

 

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**7.3****                              ****NoClaims**.  As of the Effective Date, toFricano’s Knowledge, no claim has been made and is continuing or threatenedthat the use of any IP Right concerning the MEMS Technology and Documentationis invalid or unenforceable or that the use of any such IP Right does or mayviolate the rights of any third party, other than the claims set out on ExhibitC, based solely on writings received by Fricano or statements made to Fricanowhich he actually believes to be authoritative.

 

**7.4****                              ****Disclaimerof Other Warranties**.  EXCEPT ASEXPRESSLY PROVIDED IN THIS SECTION 7 (Fricano Representations and Warranties),FRICANO MAKES NO OTHER WARRANTIES (AND EXPRESSLY DISCLAIMS ANY AND ALL SUCHWARRANTIES), WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING,WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULARPURPOSE.  APART FROM THE WARRANTIES SETFORTH IN THIS SECTION 7, THE MEMS TECHNOLOGY AND DOCUMENTS IS PROVIDED “AS IS.”

 

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

 

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

 

**9.****                                     ****AuditRight**.  Apogee shall keep separate,auditable, books and records pertaining to the sale, distribution, and pricingof MEMS Products.  Fricano shall beentitled to examine such books and records, through a licensed publicaccountant chosen by him, who shall not disclose the records to him, but shallprovide him with their conclusions (the “**Auditors**”).  The Auditors shall be required to signed anappropriate non-disclosure agreement, and shall perform their task at timesagreed in advance between the Parties during normal business hours, and notmore frequently than once per calendar year during the time Apogee is requiredto 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 incorrectby more than ten (10) percent in Apogee’s favor, in which case Apogee shallreimburse Fricano the reasonable costs of the audit.

 

**10.****                              ****ConfidentialInformation**.  Thefollowing terms and conditions govern use and protection of confidentialinformation that one Party (the “**Disclosing Party**”)provides or discloses to the other Party (the “**ReceivingParty**”) pursuant to this Agreement:

 

**10.1****                       ****Definitionof Confidential Information**.  The term “**ConfidentialInformation**” shall mean (a) the MEMS Technology and Documentation;(b) non-public information and materials (in any medium), including but notlimited to any software, semiconductor chip design, design documentation,business, financial or strategic plans or information of the 

 

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

 

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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 byany 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 notrelieve the Receiving Party of the obligation to maintain the confidentialityof any unlegended material which the Receiving Party knows or should knowcontained Confidential Information. The financial terms of this Agreement shallbe Confidential Information of both Parties.

 

**10.2****                       ****Limitationson Use and Disclosure**.  TheReceiving Party shall not use Confidential Information of the Disclosing Partyexcept for purposes of this Agreement. The Receiving Party shall not disclose Confidential Information receivedfrom the Disclosing Party; provided that the Receiving Party may disclose suchinformation to its employees if such personnel have a legitimate need to knowsuch information and are bound in writing by confidentiality obligations notmaterially less restrictive than those set forth in this Agreement.

 

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

 

**10.4****                       ****Exclusions**.  Without granting any right or license, theParties agree that no obligation of nondisclosure or nonuse under thisAgreement will apply to any information (with the burden of proof upon theReceiving Party) (i) that the Receiving Party already rightfully possesses atthe time of the disclosure by the Disclosing Party or rightfully receives froma third party, (ii) that the Receiving Party develops independently and withoutreference to any Confidential Information of the Disclosing Party, or (iii)that is or becomes available to the public other than by breach of thisAgreement.  The Receiving Party maydisclose Confidential Information received from the Disclosing Party to theextent that the Receiving Party is required by any judicial or governmentauthority to disclose such information, provided the Receiving Party gives theDisclosing Party prompt notice of such requirements and reasonably cooperateswith the Disclosing Party in attempting to limit such required disclosure.

 

**10.5****                       ****Returnof Confidential Information**.  Upon termination or expiration of this Agreementthe Receiving Party will promptly return all documents and materials containingConfidential Information that were provided to it by Disclosing Party or willcertify to the destruction of such materials.

 

**11.****                              ****Limitationof Liability**.  IN NO EVENTSHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, ORCONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUTLIMITATION, LOSS OF PROFITS OR OTHER ECONOMIC LOSS, EVEN IF SUCH PARTY HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR A BREACH OF SECTION 10(Confidential Information).

 

**12.****                              ****NoImplied Licenses**.  Any licenseconcerning the [* * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ] under thisAgreement must be expressly 

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

 

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provided herein, and thereshall be no licenses implied pursuant to this Agreement, based on any course ofconduct or other construction or interpretation thereof.

 

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

 

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

 

**14.1****                       ****MaterialBreach**.  In the event that either ofthe Parties is in material breach of any obligation under this Agreement, thenon-breaching Party may terminate this Agreement upon (i) providing the otherParty with written notice of the breach (a “**Notice ofBreach**”) and (ii) providing thereafter a ninety (90) day opportunityto cure beginning on the date of receipt by the alleged breaching Party of theNotice 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 petitionin bankruptcy filed for or against it, the other Party shall have the right toterminate this entire Agreement immediately upon providing written notice ofsuch termination.

 

**14.3****                       ****Survival**.  The rights and obligations of the Partiesunder the following Sections shall survive the termination or expiration ofthis Agreement:  Section 2 (Transfer ofRights); Section 7 (Fricano Representations and Warranties); Section 9 (AuditRight) (for the period specified in such section); Section 10 (ConfidentialInformation);; Section 11 Limitation of Liability); and Section 15 (General).

 

**15.****                              ****General**

 

**15.1****                       ****NoAgency**.  Nothing contained herein shallbe construed as creating any agency, partnership, or other form of jointenterprise between the Parties.

 

**15.2****                       ****PressReleases**.  Uponobtaining the consent of the other Party (which consent shall not beunreasonably withheld or delayed), either Party shall be entitled to issuepress releases concerning this Agreement.

 

**15.3****                       ****GoverningLaw**.  This Agreement shall begoverned in all respects by the laws of Commonwealth of Massachusetts withoutregard to its conflicts of law principles.

 

**15.4****                       ****Forum**.  In the event of a dispute hereunder, the sameshall be submitted to binding arbitration under the rules of the AmericanArbitration Association in the city of Boston, State of Massachusetts or theCity of New York, State of New York.  TheParty prevailing shall be entitled to recover reasonable legal fees andexpenses from the Party not prevailing.

 

**15.5****                       ****Notices**.  In any case where any notice or othercommunication is required or permitted to be given hereunder, such notice orcommunication will be given in writing by personal delivery or nationalovernight delivery service, addressed to the respective Party at the addressesindicated above.  All such notices orother communications will be deemed to 

 

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

 

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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****                       ****ForceMajeure**.  Neither Party shall be liablehereunder by reason of any failure or delay in the performance of itsobligations 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 anyother cause which is beyond the reasonable control of such Party.

 

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

 

**15.8****                       ****Severability**.  In the event that any provision of thisAgreement shall be unenforceable or invalid under any applicable law or be soheld by applicable court decision, such unenforceability or invalidity shallnot render this Agreement unenforceable or invalid as a whole, and, in suchevent, such provision shall be changed and interpreted so as to best accomplishthe objectives of such unenforceable or invalid provision within the limits ofapplicable law or applicable court decisions.

 

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

 

**15.10****                ****Counterparts**.  This Agreement may be executed simultaneouslyin two or more counterparts, each of which will be considered an original, butall of which together will constitute one and the same instrument.

 

**15.11****                ****EntireAgreement**.  ThisAgreement together with the exhibits hereto completely and exclusively statesthe agreement of the Parties regarding its subject matter and supersedes, andits terms govern, all prior proposals, agreements, or other communicationsbetween the parties, oral or written, regarding such subject matter.  This Agreement shall not be modified exceptby a subsequently dated written amendment signed on behalf of each of theparties.

 

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

 

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                **IN WITNESS WHEREOF**, the parties hereto have caused thisTransfer and Royalty Agreement to be executed by their duly authorizedrepresentatives.

 

| Fricano:           |   |                    |
|--------------------|--------|-------------------------|
|               |   |                    |
|               | /s/    | G. Fricano              |
| Date:              |   | May 11, 2004            |
|               |   |                    |
| Apogee Technology, |
|               |   |                    |
| By:                | /s/    |                    |
| Title:             |   | Chief Operating Officer |
| Date:              |   | May 11, 2004            |

 

 

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

 

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