OR OTHERWISE, WITHOUT
THE PRIOR WRITTEN CONSENT OF THE OTHER; PROVIDED, HOWEVER, THAT THE COMPANY MAY
ASSIGN ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT WITHOUT THE CONSENT OF
THE EXECUTIVE IN THE EVENT THAT THE COMPANY SHALL EFFECT A REORGANIZATION,
CONSOLIDATE WITH, OR MERGE INTO, ANY OTHER PERSON OR TRANSFER ALL OR
SUBSTANTIALLY ALL OF ITS PROPERTIES OR ASSETS TO ANY OTHER PERSON. THIS
AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE BINDING UPON THE COMPANY AND THE
EXECUTIVE, THEIR RESPECTIVE SUCCESSORS, EXECUTORS, ADMINISTRATORS, HEIRS AND
PERMITTED ASSIGNS.
5
ENFORCEMENT OF COVENANTS.
THE EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE HAS
CAREFULLY READ AND CONSIDERED ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT,
INCLUDING THE RESTRAINTS IMPOSED UPON THE EXECUTIVE PURSUANT TO SECTIONS 2(B),
2(C) AND 7. THE EXECUTIVE AGREES THAT SAID RESTRAINTS ARE NECESSARY FOR THE
REASONABLE AND PROPER PROTECTION OF THE COMPANY AND ITS AFFILIATES AND THAT EACH
AND EVERY ONE OF THE RESTRAINTS IS REASONABLE IN RESPECT TO SUBJECT MATTER,
LENGTH OF TIME AND GEOGRAPHIC AREA. THE EXECUTIVE FURTHER ACKNOWLEDGES THAT,
WERE THE EXECUTIVE TO BREACH ANY OF THE COVENANTS CONTAINED IN SECTION 2(B),
2(C) OR 7, THE DAMAGE TO THE COMPANY WOULD BE IRREPARABLE. THE EXECUTIVE
THEREFORE AGREES THAT THE COMPANY, IN ADDITION TO ANY OTHER REMEDIES AVAILABLE
TO IT, SHALL BE ENTITLED TO PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF AGAINST
ANY BREACH OR THREATENED BREACH BY THE EXECUTIVE OF ANY OF SAID COVENANTS,
WITHOUT HAVING TO POST BOND.
CONFLICTING AGREEMENTS.
THE EXECUTIVE HEREBY REPRESENTS AND WARRANTS THAT THE
EXECUTION OF THIS AGREEMENT AND THE PERFORMANCE OF THE EXECUTIVE'S OBLIGATIONS
HEREUNDER WILL NOT BREACH OR BE IN CONFLICT WITH ANY OTHER AGREEMENT TO WHICH
THE EXECUTIVE IS A PARTY OR IS BOUND AND THAT THE EXECUTIVE IS NOT NOW SUBJECT
TO ANY COVENANTS AGAINST COMPETITION OR SIMILAR COVENANTS THAT WOULD AFFECT THE
PERFORMANCE OF THE EXECUTIVE'S OBLIGATIONS UNDER THIS AGREEMENT. THE EXECUTIVE
WILL NOT DISCLOSE TO OR USE ON BEHALF OF THE COMPANY ANY PROPRIETARY INFORMATION
OF A THIRD PARTY WITHOUT SUCH PARTY'S CONSENT.
NOTICE.
FOR PURPOSES OF THIS AGREEMENT, ALL NOTICES AND ALL OTHER
COMMUNICATIONS PROVIDED FOR IN THIS AGREEMENT SHALL BE IN WRITING AND SHALL BE
DEEMED TO HAVE BEEN DULY GIVEN WHEN (A) DELIVERED PERSONALLY, (B) SENT BY
FACSIMILE OR SIMILAR ELECTRONIC DEVICE AND CONFIRMED, (C) DELIVERED BY OVERNIGHT
EXPRESS, OR (D) IF SENT BY ANY OTHER MEANS, UPON RECEIPT.
NOTICES AND ALL OTHER
COMMUNICATIONS PROVIDED 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:
Chairman of the Compensation Committee
With a copy to:
or to such other address as either party may have furnished to the other in
writing in accordance herewith.
MISCELLANEOUS. NO PROVISION OF THIS AGREEMENT MAY BE MODIFIED, WAIVED, OR
DISCHARGED UNLESS SUCH WAIVER, MODIFICATION, OR DISCHARGE IS AGREED TO IN A
WRITTEN INSTRUMENT SIGNED BY THE EXECUTIVE AND THE COMPANY. NO WAIVER BY EITHER
PARTY HERETO OF, OR COMPLIANCE WITH, ANY