EXHIBIT 10.28


 


Boston Biomedica
Inc. – Consultant  Agreement


 


This
Agreement is entered into as of the 30th day of June, 2003, between Boston
Biomedica Inc. (“the Company”) and Richard T. Schumacher (“the Consultant”).


 


WHEREAS,
the Company desires to assure itself that the benefits of the consulting
abilities and talents of the Consultant relative to certain aspects of the
Company’s business will be available to the Company;


 


NOW,
THEREFORE, in consideration of the mutual covenants and promises herein contained,
the receipt and sufficiency of which is hereby acknowledged, and intending to
be legally bound, it is hereby agreed by and between the parties as follows:


 


1.               Consulting Engagement. 
Subject to the terms and conditions of this Agreement, the Company
hereby engages the Consultant as an Executive Project Consultant to perform the
services set forth herein, and the Consultant hereby accepts such engagement.


 


2.               Term.  The Term of the Consultant’s
engagement hereunder shall commence on the date hereof and extend through
December 31, 2003 unless sooner terminated as hereinafter provided.


 


3.               Duties.  Subject to the terms and
conditions in this Agreement, the Consultant’s duties as Executive Project
Consultant shall be to take an advisory role in directing the Company’s PCT and
Source activities and the Company’s ownership interest in Panacos
Pharmaceuticals, Inc. (“Panacos”), each as further described below, and such
other duties as may be assigned to him by the President of the Company or the
Board from time to time.  The Consultant
shall report to, be specifically accountable to and shall follow the directions
of the President of the Company for all day to day activities.  The Consultant shall also report and be
responsible to, and be subject to the authority of the Board.  The Consultant shall devote substantially
all his business time and energy and will use his best efforts to perform his
duties hereunder.  The Consultant will
be given reasonable access to Company personnel to assist the Consultant in the
fulfillment of his duties and responsibilities under this Agreement.


 


4.               Compensation. 
During the term of the Consultant’s engagement under this Agreement, the
Consultant shall be paid $4,807.90 per week, which is equivalent to an
annualized salary of $250,000.00, prorated for the number of weeks between the
date hereof and December 31, 2003 and based on a 52 week year.  Such amounts shall be paid periodically in
accordance with the Company’s normal payroll practices.  In addition to his salary, for the sole
purpose of determining compensation and benefits, the Consultant shall be
considered a full time employee and as such will be entitled to participate in
and immediately eligible for health and medical insurance, disability
insurance, group life insurance, group travel insurance, and 401(k) retirement
plan applicable to all full time employees of the Company as they may be in
effect from time to time.  The
Consultant’s prior service with the Company shall be attributed to Consultant
in determining eligibility to participate in and the extent of benefits from
such benefit plans.  There shall be no
waiting period for participation in any such plan.  The Consultant shall  be
eligible for vacation, holidays and sick days in accordance with the Company’s
policies applicable to all full time employees.


 


5.               PCT, Source and Panacos. The Consultant shall assume an advisory role
in directing the Company’s PCT and Source Divisions and the Company’s ownership
interest in Panacos.  The heads of the
Company’s PCT and Source Divisions shall report to the Consultant.


 


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6.               PCT Division.  The
Consultant shall produce a robust business plan for the PCT business by
July 25, 2003.  The business plan
shall be in such form as shall be mutually agreed upon between the Company and
the Consultant, and the business plan shall be acceptable to the Board.  The business plan shall contain all
information reasonably requested by the Board to be included therein and shall
comply with the funding sources and limitations identified and imposed by the
Board.  Without limiting the foregoing,
such business plan shall include an operating budget, and shall include a
financial model for 5 years that includes a statement of operations, balance
sheet and cash flows, with all the drivers of the business metrics modeled.
In  performing his PCT duties set forth
in Paragraph 7 above, until such time as the business plan, including the
operating budget, is approved by the Board, the Consultant shall limit the
monthly losses from the PCT Division to an amount equal to or less than the
average monthly amount of losses that have been incurred by the PCT Division
since January 1, 2003.  For this
purpose, however, the Consultant’s salary and related expenses will not be
considered in the calculation of PCT’s losses. 
The Consultant further understands and agrees that if the President of
the Company, representing the Board, so determines based on the Company’s
overall financial condition, it may be necessary to further limit the amount of
losses incurred by the PCT Division.


 


7.               Source Business Plan. By September 30, 2003, the Consultant
will prepare and present to the Board an initial plan to substantially reduce
and subsequently eliminate all losses from the Source Division by
March 31, 2004.  


 


8.               Payment of the Commerce Loan. With the proceeds (net of required taxes)
Consultant may receive from the sale of any personal assets,  the Consultant shall promptly apply all such
net proceeds to repay all amounts due to Commerce Bank & Trust Company
(“Commerce Bank”), whether owed personally or by any affiliate of the
Consultant, including Resort Accommodations International LLC (“RAI”) (the
“Commerce Bank Loan”) and all amounts owed to the Company by the Consultant or
any such affiliate pursuant to (i) that certain Limited Guaranty by the Company
for the benefit of Commerce Bank dated January 15, 2002, (ii) that certain
Junior Participation Agreement also dated January 15, 2002 by and between
Commerce Bank, RAI and the Company, (iii) that certain Pledge Agreement also
dated January 15, 2002 by and between the Company and Commerce Bank, and
(iv) that certain Pledge and Security Agreement dated as of January 15,
2002 by and between the Consultant, the Company and Commerce Bank.  By entering into this Agreement, the
Consultant hereby ratifies, confirms and acknowledges his obligations to the
Company under such agreements referred to in clauses (i) through (iv) above
(the “Company’s Guarantee”). 
Notwithstanding the foregoing, if and to the extent the Consultant or
his affiliates has funds or assets in excess of ordinary and routine living
expenses, the Consultant shall repay the Commerce Bank Loan and the Company’s
Guarantee.  For purposes of the
preceding sentence, funds or assets of the Consultant’s spouse shall only
include any funds or assets transferred by the Consultant to his spouse at any
time in  the past or in the future, but
not including that certain real estate interest known as Unit 5235 (four
quarters) in the Marriott Grand Residence in South Lake Tahoe or any proceeds
therefrom.


 


9.               Expenses.  During the term of this
Agreement, the Consultant shall obtain prior approval for any and all
out-of-pocket expenses incurred in connection with the performance of his duties
hereunder and otherwise in accordance with the Company’s reimbursement policy
and procedure as in effect from time to time. 
If approved in advance, the Consultant shall submit invoices for such
approved expenses in accordance with the Company’s expense reimbursement
procedures, and the Company shall reimburse him for all such approved
out-of-pocket expenses.


 


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10.         Written
Reports.  The Company may request that plans, progress
reports and results reports be provided by the Consultant on a weekly or
monthly basis as requested by the Company. 
The reports shall be in such form and setting forth such information and
data as is reasonably requested by the Company.


 


11.         Inventions.  Any
and all inventions, discoveries, developments and innovations conceived by the
Consultant during this engagement relative to the duties under this Agreement
shall be the exclusive property of the Company; and the Consultant hereby
assigns all right, title, and interest in the same to the Company.  Any and all inventions, discoveries,
developments and innovations conceived by the Consultant prior to his
engagement hereunder and utilized by him in rendering duties to the Company are
hereby licensed to the Company for use in its operations and for an infinite
duration.  This license is
non-exclusive, and may be assigned without the Consultant’s prior written
approval by the Company to a wholly-owned subsidiary of the Company.


 


12.         Confidentiality. The Consultant acknowledges that during his
engagement hereunder, he will have access to and become acquainted with various
trade secrets, inventions, innovations, processes, information, records and
specifications owned or licensed by the Company and/or used by the Company in
connection with the operation of its business including, without limitation,
the Company’s business and product processes, methods, customer lists, accounts
and procedures.  The Consultant agrees
that he will not disclose any of the aforesaid, directly or indirectly, or use
any of them in any manner, either during his engagement hereunder or at any
time thereafter, except as required in the course of his engagement by the
Company.  All files, records, documents,
blueprints, specifications, information, letters, notes, media lists, original
artwork/creative, notebooks, and similar items relating to the business of the
Company whether prepared by the Consultant or otherwise coming into his
possession during his engagement hereunder, shall remain the exclusive property
of the Company.  The Consultant shall
not retain any copies of the foregoing without the Company’s prior written
permission.  Upon the termination of his
engagement hereunder, or whenever requested by the Company, the Consultant
shall immediately deliver to the Company all such files, records, documents,
specifications, information, and other items in his possession or under his
control.


 


13.         Disclosure.  The
Consultant shall not disclose the terms of this Agreement to any person without
the prior written consent of the Company. 
The Company shall issue a press release to announce the Consultant’s
engagement.  The Company shall promptly
submit the press release to the Consultant for his review and approval prior to
release to the public.


 


14.         Conflicts
of Interest; Non-hire Provision.  The Consultant represents that
he is free to enter into this Agreement, and that this engagement does not
violate the terms of any agreement between the Consultant and any third party.  Further, the Consultant, in rendering his duties
shall not utilize any invention, discovery, development, improvement,
innovation, or trade secret in which he does not have a proprietary
interest.  If the Company is not in
breach of its obligations under this Agreement, for a period of one year following
termination of his engagement hereunder, the Consultant shall not, directly or
indirectly hire, solicit, or encourage to leave the Company’s employment, any
employee,  consultant, or contractor of
the Company or hire any such employee, 
consultant, or contractor who has left the Company’s employment or
contractual engagement within one year of such employment or engagement, (other
than such employees, consultants and contractors who have been involuntarily
terminated by the Company).


 


15.         Right
to Injunction.  The parties hereto acknowledge that the
services to be rendered by the Consultant under this Agreement, the rights and
privileges granted to the Company under the Agreement, the benefits to be
received by the Consultant and the obligations of the


 


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Company
hereunder are of a special, unique, unusual, and extraordinary character which
gives them a peculiar value, the loss of which cannot be reasonably or
adequately compensated by damages in any action at law, and the breach by
either party of any of the provisions of this Agreement will cause the other
irreparable injury and damage.  The
parties expressly agree that each party shall be entitled to injunctive and
other equitable relief in the event of, or to prevent, a breach of any
provision of this Agreement by the 
other party.  Resort to such
equitable relief, however, shall not be construed to be a waiver of any other
rights or remedies that such party may have for damages or otherwise.  The various rights and remedies of the  parties under this Agreement or otherwise
shall be construed to be cumulative, and no one of the them shall be exclusive
of any other or of any right or remedy allowed by law.


 


16.         Termination.     The
Consultant’s engagement hereunder may be terminated prior to December 31,
2003 as follows:


 


(i)                                     With Cause.  The Board may terminate the
Consultant’s engagement hereunder at any time and without further obligation
for cause.  If the Board terminates the
engagement for cause, then it shall only owe the Consultant compensation that
has accrued and has not yet been paid as of the date of termination (calculated
on a daily basis).  For purposes of this
Agreement, “cause” shall mean the occurrence of any of the following events:


 


(A)                              any material act of personal dishonesty, or serious misconduct in
connection with the Consultant’s responsibilities to the Company under this
Agreement;


 


(B)                                the commission by the Consultant of any crime classified as a felony
under any Federal, state or local law or the Consultant engaging in any acts of
moral turpitude;


 


(C)                                continued material violations, breach or noncompliance by the
Consultant of the Consultant’s obligations or covenants under this Agreement
after there has been delivered to the Consultant a written demand for
performance or compliance from the Company which describes the basis for the
Company’s belief that the Consultant has violated, breached or failed to comply
with the Consultant’s duties or complied with the Consultant’s obligations or
covenants under this Agreement and such violations, breach or noncompliance
have not been corrected or cured by the Consultant within ten (10) business
days following such demand;


 


(D)                               continued failure or refusal to comply with the written policies or
reasonable directives of the Company after there has been delivered to the
Consultant a written demand for performance or compliance from the Company
which describes the basis for the Company’s belief that the Consultant has
failed or refused to comply with such policies or directives and such failure
or refusal have not been corrected or cured by the Consultant within ten (10)
business days following such demand; or


 


(E)                                 the use by the Consultant of a controlled
substance without a prescription or the abuse of alcohol which in any way
impairs the Consultant’s ability to carry out Consultant’s duties and
responsibilities under this Agreement.


 


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17.         Termination
of Duties, Responsibilities and Authority.  Although the Consultant’s
engagement hereunder shall continue through December 31, 2003, the Board
may reduce, limit or terminate part or all of the Consultant’s duties,
responsibilities and authority to provide any services under this Agreement at
any time without cause, provided however, that if the Board reduces, limits or
terminates part or all of such duties, responsibilities and authority without
cause prior to December 31, 2003, it shall continue to pay the Consultant
all of the compensation, including benefits, which otherwise would have been
paid through December 31, 2003 had the Board not so terminated such
duties, responsibilities and authority. 
In such event, the Consultant shall continue to be referred to as the
Company’s Executive Project Consultant.


 


18.         Taxes.  The
Company shall withhold taxes with respect to the Consultant’s compensation
hereunder.


 


19.         Successors
and Assigns.  All of the provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, if any, successors, and assigns, provided, however, the
Consultant shall not assign any of his rights under this Agreement, or delegate
the performance of any of his duties hereunder, without the prior written
consent of the Company.


 


20.         Choice
of Law.  The laws of the Commonwealth of
Massachusetts shall govern the validity of this Agreement, the construction of
its terms and the interpretation of the rights and duties of the parties
hereto.


 


21.         Arbitration. Any controversies arising out of the terms
of this Agreement or its interpretation shall be settled in Massachusetts in
accordance with the rules of the American Arbitration Association, and the
judgment upon award may be entered in any court having jurisdiction thereof.


 


22.         Headings. 
Section headings are not to be considered a part of this Agreement
and are not intended to be a full and accurate description of the contents
hereof.


 


23.         Waiver.  No
failure or delay by either part in exercising any right under this Agreement
will operate as a waiver of such right or any other right under this Agreement.
Waiver by one party hereto of breach of any provision of this Agreement by the
other shall not operate or be construed as a continuing waiver.


 


24.         Notices.  Any
and all notices, demands, or other communications required or desired to be
given hereunder by any party shall be in writing and shall be validly given or
made to another party if personally served, or if deposited  in the United States mail, certified or
registered, postage prepaid, return receipt requested.  If such notice or demand is served
personally, notice shall be deemed constructively made at the time of such
personal service.  If such notice,
demand or other communication is given by mail, such notice shall be conclusively
deemed given five days after deposit thereof in the United States mail
addressed to the party to whom such notice, demand or other communication is to
be given as follows:


 


If
to the Consultant:


 


Richard
T. Schumacher


65
Black Pond Lane


Taunton,
MA 02780


 


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If
to the Company:


 


Boston
Biomedica, Inc.


375
West Street


West
Bridgewater, MA 02379


 


Any
party hereto may change its address for purposes of this paragraph by written
notice given in the manner provided above.


 


25.         Modification
or Amendment.  No amendment, change or modification of this
Agreement shall be valid unless in writing signed by the parties hereto.


 


26.         Entire
Understanding.  This document and any exhibit attached
constitute the entire understanding and agreement of the parties, and any and
all prior agreements, understandings, and representations whether written or
oral are hereby terminated and canceled in their entirety and are of no further
force and effect.


 


27.         Unenforceability
of Provisions.  If any provision of this Agreement, or any
portion thereof, is held to be invalid and unenforceable, then the remainder of
this Agreement shall nevertheless remain in full force and effect.


 


28.         Counterparts. 
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.


 


29.         Captions.  Captions have been inserted
solely for the convenience of reference and in no way define, limit or describe
the scope or substance of any provisions of this Agreement.


 


IN
WITNESS WHEREOF the undersigned have executed this Agreement as of the day and
year first written above.  The parties
hereto agree that facsimile signatures shall be as effective as if originals.


 


	
  Boston
  Biomedica Inc.

  	
  Consultant:

  
	
   

  	
   

  
	
    

  	
  /s/ Richard T. Schumacher

  	
   

  
	
  By:

  	
    /s/ Kevin W. Quinlan

  	
   

  	
  Richard
  T. Schumacher

  
	
  Its: President and Chief

  	
   

  
	
  Operating Officer

  	
   

  
					



 


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