**EXHIBIT 10.1**

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**EMPLOYMENTAGREEMENT**

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This Employment Agreement (this “Agreement”) ismade and entered into as of the 25th day of March, 2004, by and between ApogeeTechnology, Inc., a Delaware corporation with its principal office at 129Morgan Drive, Norwood, Massachusetts 02062 (the “Company”), and Herbert M.Stein (the “Executive”).

 

**WITNESSETH:**

** **

WHEREAS, the Company desires to engage thefull-time services of the Executive;

 

WHEREAS, the Executive desires to be so employedby the Company; and

 

WHEREAS, the Company desires to be assured thatthe unique and expert services of the Executive will be available solely to theCompany on such full-time basis, and that the Executive is willing and able torender such services on the terms and conditions hereinafter set forth.

 

NOW, THEREFORE, in consideration of the foregoingand of the respective covenants and agreements set forth below, the partieshereto agree as follows:

 

# Employmentand Term.  TheCompany hereby agrees to employ the Executive, and the Executive hereby agreesto accept such employment, on the terms and conditions set forth herein, forthe three year period commencing on January 1, 2004 (the “EffectiveDate”), unless such employment is earlier terminated in accordance with theterms and provisions of this Agreement. This Agreement shall automatically renew for successive periods of twoyears (each a “Renewal Term”) unless either party notifies the other of itsintention not to renew this Agreement within one hundred twenty (120) daysprior to expiration of the Initial Term or Renewal Term, as appropriate(collectively, the Initial Term and Renewal Term(s) are the “Term”).

#  

# Dutiesand Restrictions.

#  

## **Duties asExecutive of the Company**. TheExecutive shall, subject to the direction and supervision of the Company’sBoard of Directors, serve as the Chief Executive Officer and President of theCompany.  The Executive shall also serveas Chairman of the Company’s Board of Directors, subject to the rights of theCompany’s shareholders to elect the Company’s directors.  In his capacity as President and ChiefExecutive Officer, the Executive’s rights, duties and responsibilities shall beas prescribed from time to time by the Board of Directors of the Company,provided such duties are customary for a president and chief executiveofficer.  The Executive shall devote hisentire working time, attention and energy to the affairs of the Company duringthe Term of his employment pursuant to this Agreement.  The Executive shall perform his duties tothe best of his ability, pursuant to the policies and regulations of theCompany, and shall use his best efforts to promote the success of the presentand future businesses of the Company. The Executive, as Chief Executive Officer and President of the Company,shall have primary responsibility for managing the business and financialaffairs of the Company.  Notwithstandinganything to the contrary, the Executive shall require Board approval to hire orfire Senior Management Employees.  Forpurposes hereof, the term “Senior Management Employees” shall mean employeeswho are, or shall be, compensated with an annual base salary equal to orgreater than $150,000 or such other amount as approved by the CompensationCommittee of the Board of Directors.

## ** **

## **Confidentiality**.  The Executive shall not,directly or indirectly, during the Term and at any time during or following thetermination of his employment with the Company, reveal, divulge, or make knownto any person or entity, or use for the Executive’s personal benefit (including,without limitation, for the purpose of soliciting business competitive with anybusiness of the Company or any of its subsidiaries or affiliates), anyinformation acquired during the course of employment hereunder with regard tothe financial, technical, business or other affairs of the Company or any ofits subsidiaries or affiliates (including, without limitation, any list orrecord of persons or entities with which the Company or any of its subsidiariesor affiliates has any dealings), other than (1) material already in the publicdomain, (2) information of a type not considered confidential by personsengaged in the same business or a similar business to that

 

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## **conductedby the Company, (3) material known by the recipients through disclosure by athird party who has a bona fide right to make such disclosure, or (4) materialthat the Executive is required to disclose under the following circumstances:(A) in the performance by the Executive of his duties and responsibilitieshereunder, which disclosure is reasonably necessary or appropriate, to anotherexecutive of the Company or to representatives or agents of the Company (suchas independent public accountants and legal counsel); (B) at the express directionof any authorized governmental entity; (C) pursuant to a subpoena or othercourt process; or (D) as otherwise required by laws or the rules, regulations,or orders of any applicable regulatory body. The Executive shall, at any time requested by the Company (either duringor after his employment with the Company), promptly deliver to the Company allmemoranda, notes, reports, lists, and other documents (and all copies thereof)relating to the business of the Company or any of its subsidiaries or affiliateswhich he may then possess or have under his control.**

## ** **

## **Non-Solicitation**. During the Term and Non-Solicitation Period (as defined below), theExecutive will not (i) solicit, or attempt to solicit, any officer, director,consultant, executive or employee of the Company or any of its subsidiaries oraffiliates (each an “Employee”) to leave their employment, affiliation, orengagement with the Company or such subsidiary or affiliate, (ii) call upon,solicit, divert or attempt to solicit or divert from theCompany or any of itsaffiliatesor subsidiaries any of their customers or suppliers, or potential customers orsuppliers, of whose names he was aware during the term of his employment withthe Company; or (iii) interfere with the business relationship or advantagebetween the Company and any customer, supplier, or account of the Company, ofwhose name he was aware during the term of his employment with the Company.

## ** **

## **Forpurposes of this Agreement, the “Non-Solicitation Period” shall mean a periodof one year following the termination of the Executive’s employment for anyreason; provided, however, that under no circumstances may theExecutive make any solicitations hereunder with respect to any former Employeeuntil six months has expired since such Employee’s employment, affiliation orengagement with the Company has terminated.**

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# Compensationand Benefits.

#  

## **BaseSalary**.  During each Company Fiscal Year, the Executive shall receive abase salary (as adjusted, the “Base Salary”), payable in accordance with theCompany’s payroll policies as in effect from time to time.  In addition, the Company’s Board ofDirectors shall annually consider granting increases in the Base Salary basedon such factors as the Executive’s performance and the financial performance ofthe Company, but the Company shall have no obligation to grant such increasesin compensation.  The first such reviewshall take place on or around January 31, 2005.  The Executive’s initial Base Salary shall be Two HundredNinety-Five Thousand Dollars ($295,000.00). The term “Company Fiscal Year” shall mean each one year period ending onDecember 31.

## ** **

## **Bonus**.  Beginning with the CompanyFiscal Year ending December 31, 2004, and for each successive CompanyFiscal Year during the Term, the Executive shall be eligible to receive a bonus(“Bonus”) at such time and in such amount as shall be determined by theCompany’s Board of Directors in its absolute and sole discretion.

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## **Expenses**.  During the Term, theExecutive shall be entitled to receive prompt reimbursement for all reasonablebusiness expenses incurred by him (in accordance with the policies andprocedures established from time to time by the Company) in performing serviceshereunder, provided that the Executive properly accounts therefor in accordancewith Company policy.

## ** **

## **Benefits**.  During the Term and subjectto any contribution generally required of employees of the Company, theExecutive shall be entitled to participate in any and all employee benefitplans from time to time in effect for employees of the Company generally.  Such participation shall be subject to (i)the terms of the applicable plan documents and (ii) generally applicableCompany policies. The Company may alter, modify or terminate its employee benefitplans at any time as it, in its sole discretion, determines to be appropriate.

## ** **

## **Vacations**.  The Executive shall beentitled to twenty (20) paid vacation days per Company Fiscal Year.  Vacation days shall accrue at the rate of1.67 days per month in each fiscal year. If the Executive does not fully utilize his vacation in any given year,he may roll any unused portion forward into future years except that at no timecan the total accrued and unused vacation time exceed forty (40) days.

## ** **

Proration.  Any payments or benefits payable to the Executivehereunder in respect of any calendar year or any fiscal year during which theExecutive is employed by the Company for less than the

 

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entire year, unlessotherwise provided in the applicable plan or arrangement, shall be prorated inaccordance with the number of days in such calendar year or fiscal year duringwhich he is so employed.

 

## **EquityCompensation**.

## ** **

### Grant.                Within 30 daysafter the execution and delivery of this Agreement by each party, the Companyshall grant to Executive options for the purchase of one hundred seventy-fivethousand (175,000) shares of the common stock of the Company, at an exerciseprice of the market price per share, it being acknowledged that such exerciseprice represents the fair market value of the Company’s common stock.

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### General Terms; Forfeiture & Vesting.   The options shall be subject to the provisions of the Company’sapplicable stock option plan (the “Option Plan”) and shall be evidenced by eachparty’s execution of a stock option agreement (the “Option Agreement”).  The Option Agreement shall incorporate eachof the following terms and concepts: (i) the options shall be “non-qualified” stock options (i.e. the optionswill not be incentive stock options under Section 422 of the InternalRevenue Code of 1996, as amended); (ii) the options shall be of not less thanten (10) years duration; (iii) the options shall be exercisable (“vested”) asfollows:  35,000 options shall beexercisable upon the one-year anniversary of the Effective Date, and 35,000options shall thereafter be exercisable on each succeeding annual anniversaryuntil an aggregate of 175,000 options have vested; (iv) upon the Executive’stermination of service with the Company in all capacities (including as anemployee, director or consultant) for other than Cause, death or disability,the Executive may exercise vested options for a period not to exceed onehundred eighty (180) days following such termination of service;  (v) upon the Executive’s termination ofservice (whether as an employee, director or consultant) for Cause, all optionsshall be forfeited (vi)  the optionsshall become fully vested in the event of a Change of Control, which term shallbe defined in the Option Agreement as mutually agreed but shall include thetransfer of equity interests of the Company pursuant to a transaction or seriesof transactions in which greater than twenty-five (25%) of the voting controlof the Company (directly or indirectly) shall have been assigned (but excludingcertain transfers made for estate planning purposes); and (vii) upon the deathor disability of the Executive, the options shall become fully vested and theExecutive’s legal representative shall have one year to exercise the options.

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# Termination. TheExecutive’s employment hereunder may be terminated by the Company or theExecutive, as applicable, without any breach of this Agreement by theterminating party, under the following circumstances:

#  

## **Death**.  The Executive’s employmenthereunder shall terminate upon his death. However, in lieu of any lifeinsurance policy, the company shall pay to the Executive’s estate a lump sumpayment equal to two (2) times the prior year’s salary.  This payment shall be made within a year ofthe Executive’s death.

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## **Disability**.  If, as a result of theExecutive’s incapacity due to physical or mental illness (as determined in goodfaith by the Company’s Board of Directors), the Executive shall have beenunable, with reasonable accommodation, to perform the essential functions ofhis duties and responsibilities hereunder on a full-time basis for one hundredand eighty (180) calendar days within any three hundred and sixty (360)consecutive days.

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## **Cause**.   The Company may terminatethe Executive’s employment hereunder for Cause. For purposes of this Agreement,the Company shall have “Cause” to terminate the Executive’s employmenthereunder upon:

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### The Executive having been convicted of, or having pleaded guilty or nolocontendere to, any felony or any crime involving moral turpitude;

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### The Executive’s willful or intentional failure to perform theExecutive’s duties and responsibilities hereunder or failure to follow a lawfulwritten directive of the Board of Directors (other than any such failureresulting from the Executive’s incapacity due to physical or mental illness),upon thirty (30) days notice and opportunity to cure;

 

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### The commission by the Executive of any fraud, embezzlement ormisappropriation of funds; or

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### The breach by the Executive of any of the Executive’s materialobligations under Sections 2(b), 2(c) or 7 of this Agreement.

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## **Terminationby the Company Without Cause**. TheCompany may terminate the Executive’s employment at any time without Causeeffective upon at least sixty (60) days prior written notice.

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# CompensationUpon Termination or Failure to Renew.   Upon any termination of this Agreement, all payments, salary andother benefits shall cease, except as specifically provided for in thisSection 5:

#  

## **Death**.  If the Executive’s employmentshall be terminated by reason of his death, the Company shall pay to suchperson as shall have been designated in a notice filed with the Company priorto the Executive’s death, or, if no such person shall be designated, to hisestate, as a death benefit, any payments which the Executive’s spouse,beneficiaries, or estate may be entitled to receive pursuant to any insuranceor executive benefit plan or other arrangement or life insurance policymaintained by the Company, the Executive’s Base Salary accrued through the Dateof Termination at the rate in effect at the time of death and any Bonus whichthe Board of Directors determines is appropriate under Section 3(b).

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## **Disability**.  During any period that theExecutive fails to perform his duties and responsibilities hereunder as aresult of incapacity due to physical or mental illness, the Executive shallcontinue to receive his Base Salary until the Executive’s employment isterminated pursuant to Section 4(b) hereof and thereafter the Executiveshall receive the Executive’s Base Salary accrued through the Date ofTermination at the rate in effect at the time Notice of Termination is givenand any Bonus which the Board of Directors determines is appropriate underSection 3(b) and any disability insurance benefits the Executive isentitled to receive.

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## **Cause orVoluntary Termination**.  If the Executive’s employment shall beterminated by the Company for Cause, the Company’s sole obligation shall be topay the Executive his Base Salary through the Date of Termination at the ratein effect at the time Notice of Termination is given.  If the Executive’s employment shall be terminated voluntarily bythe Executive, the Company shall pay the Executive (i) his Base Salary throughthe Date of Termination at the rate in effect at the time Notice of Terminationis given; and (ii) an amount equal to the highest Bonus previously received bythe Executive, to be paid at the time such bonuses are customarily paid, andpro-rated in accordance with Section 3(f).

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## **WithoutCause**. If the Company shall terminatethe Executive’s employment without Cause, then the Company shall pay theExecutive:

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### his Base Salary accrued through the Date of Termination at the rate ineffect at the time Notice of Termination is given;

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### in lieu of any further salary payments to the Executive for periodssubsequent to the Date of Termination and as severance pay to the Executive,following the Date of Termination, Base Salary for a period equal to thegreater of twenty-four (24) months or the remaining period in the Term, at therate in effect at the time the Notice of Termination is given and payable inaccordance with the Company’s then-current payroll policies;

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### amounts necessary to continue the Executive’s coverage under any medicalplans in effect as of the Date of Termination for a period of twenty-four (24)months commencing on the Date of Termination; and

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### an amount equal to the highest Bonus previously received by theExecutive, to be paid at the time such bonuses are customarily paid, andpro-rated in accordance with Section 3(f).

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## **Failureto Renew**. Notwithstanding anythingcontained in this Agreement, the Executive shall not be entitled to anycompensation in the event that the Term of this Agreement is allowed to expireat its scheduled expiration date.

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## **Anypayments paid to the Executive by the Company under this Section 5shall  (i) be conditioned on theExecutive’s compliance with his post-employment covenants, including withoutlimitation, sections 2(b), 2(c) and 7; (ii)**

 

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## **uponrequest, be conditioned on the delivery of a release satisfactory to theCompany and (iii) be deemed liquidated damages.**

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# OtherProvisions Relating to Termination.

#  

## **Notice ofTermination**.  Any termination of the Executive’s employment by the Company orby the Executive (other than termination because of the death of the Executive)during the Term shall be communicated by written Notice of Termination to theother party hereto. For purposes of this Agreement, a “Notice of Termination”shall mean a notice which shall indicate the specific termination provision inthis Agreement relied upon and shall set forth in reasonable detail the factsand circumstances claimed to provide a basis for termination of the Executive’semployment under the provision so indicated.

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## **Date ofTermination**.  For purposes of this Agreement, “Date of Termination” shall mean:(1) if the Executive’s employment is terminated by his death, the date of hisdeath; (2) if the Executive’s employment is terminated because of a disabilitypursuant to Section 4(b), then immediately after Notice of Termination isgiven; (3) if the Executive’s employment is terminated by the Company for Causethen, immediately after a Notice of Termination is given; and (4) if theExecutive’s employment is terminated by the Company without Cause, then uponsuch date as is specified in the  Noticeof Termination.

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# Non-Competition.

#  

## **Executivehereby acknowledges that the Company has developed and will develop substantialand valuable goodwill with its past, present and future customers as a resultof substantial investments of time, effort and capital.  Executive further acknowledges that he hasacquired, and will continue to acquire, a high level of skill and expertise inthe Company’s field(s) of business (the “Business”) as a direct result ofExecutive’s employment by the Company, and that the Company will likely sufferserious competitive damage if Executive were to utilize that skill andexpertise for the benefit of a competitor of the Company.  Accordingly, Executive hereby covenants andagrees that, during the Term or any extension thereof and for a period ofeighteen (18) months after termination of his employment with the Company, forany reason or from the date of any final judgment upholding the provisions ofthis Section 7, whichever is later, Executive shall not, anywhere in theworld, directly or indirectly engage or invest in, own, manage, operate,control or participate in the ownership, management, operation or control of,lend Executive’s name or any similar name to, or render services similar tothose provided by Executive to the Business and/or the Company, or renderadvice to, any person, entity or business then engaged in a business that is competitivewith any of the lines of business conducted by the Company either at the datehereof or at the date of termination of Executive’s employment; provided,however, that Executive may purchase or otherwise acquire five percent (5%) orless of the capital stock of a competitive, publicly traded company.**

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## **Executiveacknowledges that the Business is multinational in scope and that the durationand geographic scope of the non-competition provisions set forth in thisSection 7 are therefore reasonable. In the event that any court determines that the duration or thegeographic scope, or both, are unreasonable and that either such provision isto that extent unenforceable, the parties hereto agree that the provision shallremain in full force and effect for the greatest time period and in thegreatest area that would not render it unenforceable.  Executive expressly grants to the Company for a period of up toeighteen (18) months, as the case may be, following the termination of thisAgreement the right to notify any person at any time of the terms of thisrestrictive covenant.**

## ** **

EXECUTIVE REPRESENTS AND WARRANTS THAT THEKNOWLEDGE, SKILLS AND ABILITIES HE POSSESSES ARE SUFFICIENT TO PERMIT HIM, INTHE EVENT OF TERMINATION OF HIS EMPLOYMENT HEREUNDER FOR ANY REASON, TO EARN,FOR A PERIOD OF UP TO EIGHTEEN (18) MONTHS FROM SUCH TERMINATION, A LIVELIHOODSATISFACTORY TO EXECUTIVE WITHOUT VIOLATING ANY PROVISIONS OF THIS SECTION.

 

# Assignment.  Neither the Company nor the Executive maymake any assignment of this Agreement, or any interest in it, by operation oflaw or otherwise, without the prior written consent of the other; provided,however, that the Company may assign its rights and obligations under thisAgreement without the consent of the Executive in the event that the Companyshall effect a reorganization, consolidate with, or merge into, any otherperson or transfer all or substantially all of its properties or assets to anyother person. This Agreement shall inure to the benefit of and be binding upon theCompany and the Executive, their respective successors, executors,administrators, heirs and permitted assigns.

 

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# Enforcementof Covenants.  TheExecutive acknowledges that the Executive has carefully read and considered allthe terms and conditions of this Agreement, including the restraints imposedupon the Executive pursuant to Sections 2(b), 2(c) and 7. The Executive agreesthat said restraints are necessary for the reasonable and proper protection ofthe Company and its affiliates and that each and every one of the restraints isreasonable in respect to subject matter, length of time and geographic area.The Executive further acknowledges that, were the Executive to breach any ofthe covenants contained in Section 2(b), 2(c) or 7, the damage to theCompany would be irreparable. The Executive therefore agrees that the Company,in addition to any other remedies available to it, shall be entitled topreliminary and permanent injunctive relief against any breach or threatenedbreach by the Executive of any of said covenants, without having to post bond.

#  

# ConflictingAgreements.  TheExecutive hereby represents and warrants that the execution of this Agreementand the performance of the Executive’s obligations hereunder will not breach orbe in conflict with any other agreement to which the Executive is a party or isbound and that the Executive is not now subject to any covenants againstcompetition or similar covenants that would affect the performance of theExecutive’s obligations under this Agreement. The Executive will not discloseto or use on behalf of the Company any proprietary information of a third partywithout such party’s consent.

#  

# Notice.  For purposes of this Agreement, all noticesand all other communications provided for in this Agreement shall be in writingand shall be deemed to have been duly given when (a) delivered personally, (b)sent by facsimile or similar electronic device and confirmed, (c) delivered byovernight express, or (d) if sent by any other means, upon receipt.  Notices and all other communicationsprovided for in this Agreement shall be

#  

If to the Executive:

 

Herbert M. Stein

 

 

 

 

 

If to the Company:

 

Apogee Technology, Inc.

129 Morgan Drive

Norwood, MA 02062

Attn:   Chairmanof the Compensation Committee

 

With a copy to:

 

 

or to such other address aseither party may have furnished to the other in writing in accordance herewith.

 

# Miscellaneous. No provisionof this Agreement may be modified, waived, or discharged unless such waiver,modification, or discharge is agreed to in a written instrument signed by theExecutive and the Company. No waiver by either party hereto of, or compliancewith, any condition or provision of this Agreement to be performed by suchother party shall be deemed a waiver of similar or dissimilar provisions orconditions at the same or at any prior or subsequent time. No agreements orrepresentations, oral or otherwise, express or implied, with respect to thesubject matter hereof have been made by either party which are not set forthexpressly in this Agreement.

#  

# Validity.  The invalidity or unenforceability of anyprovision or provisions of this Agreement shall not affect the validity orenforceability of any other provision of this Agreement, which shall remain infull force and effect.

#  

# Counterparts. ThisAgreement may be executed in several counterparts, each of which shall bedeemed to be an original, but all of which together will constitute one and thesame agreement.

 

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# EntireAgreement: Effectiveness. This Agreement constitutes the entire agreement between the parties withrespect to the subject matter hereof and supersedes any and all prioremployment agreements and/or severance protection letters, agreements, orarrangements between the Executive, on the one hand, and the Company, or anyother predecessor in interest thereto or any of their respective subsidiaries,on the other hand.

#  

# GOVERNINGLAW.  THIS AGREEMENT, INCLUDING THEVALIDITY HEREOF AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALLBE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE COMMONWEALTH OFMASSACHUSETTS APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN SUCHSTATE (WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF). EACHOF THE PARTIES HERETO AGREES THAT ANY ACTION OR PROCEEDING BROUGHT TO ENFORCETHE RIGHTS OR OBLIGATIONS OF ANY PARTY HERETO UNDER THIS AGREEMENT MAY BECOMMENCED AND MAINTAINED IN ANY COURT OF COMPETENT JURISDICTION LOCATED IN THECOMMONWEALTH OF MASSACHUSETTS, AND THAT THE UNITED STATES DISTRICT COURT FORTHE DISTRICT OF MASSACHUSETTS SHALL HAVE NON-EXCLUSIVE JURISDICTION OVER ANYSUCH ACTION, SUIT OR PROCEEDING BROUGHT BY ANY OF THE PARTIES HERETO. EACH OF THEPARTIES HERETO FURTHER AGREES THAT PROCESS MAY BE SERVED UPON IT BY CERTIFIEDMAIL, RETURN RECEIPT REQUESTED, ADDRESSED AS MORE GENERALLY PROVIDED INSECTION 11 HEREOF, AND CONSENTS TO THE EXERCISE OF JURISDICTION OVER ITAND ITS PROPERTIES WITH RESPECT TO ANY ACTION, SUIT OR PROCEEDING ARISING OUTOF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBYOR THE ENFORCEMENT OF ANY RIGHTS UNDER THIS AGREEMENT.

#  

# Arbitration. Any dispute,controversy or claim arising out of, in connection with, or in relation to thisAgreement (except for matters relating to Sections 2(b), 2(c) or 7 of thisAgreement) or any breach thereof shall be finally settled by arbitration inBoston, Massachusetts, pursuant to the rules then in effect of the AmericanArbitration Association. Any award shall be final, binding and conclusive uponthe parties and a judgment upon the award rendered thereon may be entered inany court having jurisdiction thereof.

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of thedate and year first above written.   

 
|   | COMPANY:                |
|--------|-------------------------|
|   |                    |
|   | APOGEE TECHNOLOGY, INC. |
|   | a Delaware corporation  |
|   |                    |
|   |                    |
|   | By: /s/ Alan Tuck       |   |
|   |                    | Name: | Alan Tuck |
|   |                    | Title: | Director |
|   |                    |
|   |                    |
|   |                    |
|   | By: /s/ Arthur Reynolds |   |
|   |                    | Name: | Arthur Reynolds |
|   |                    | Title: | Director |
|   |                    |
|   |                    |
|   | THE EXECUTIVE**:**      |
|   |                    |
|   |                    |
|   | /s/  Herbert M. Stein   |   |
|   | Herbert M. Stein        |
|        |                         |  |  |  |  |  |

 

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