**Exhibit 10.28**

 

November 18,2004

 

Gary M. Saxton

1622 Eagle Drive

Sunnyvale, CA  94087

 

Dear Gary:

 

We arepleased to invite you to join us as an employee of BioSphere Medical, Inc. (the“Company”).  On behalf of the Company, Iset forth in this letter agreement the terms of your offer of at-willemployment with the Company:

 

1.                                       Employment;Location; Duties.

 

You will be employed to serve on a full-time basis asVice President, Marketing and Sales, and will be based at the Company’sheadquarters.  You will be subject to thesupervision of, and shall have such authority as is delegated to you by, theChief Executive Officer of the Company. Assuming you accept this offer, your employment will begin on November 18,2004.

 

By accepting employment with the Company, you will beagreeing to undertake the duties and responsibilities inherent in such positionand such other duties and responsibilities as the Chief Executive Officer shallfrom time to time reasonably assign to you. You agree to devote your entire business time, attention and energies tothe business and interests of the Company during your employment.  You also agree to abide by the rules,regulations, instructions, personnel practices and policies of the Company andany changes therein which may be adopted from time to time by the Company.

 

2.                                       Compensation.

 

## 2.1                                 BaseSalary.  Your initial base salarywill be $195,000, less applicable taxes and withholdings, paid semi-monthly inaccordance with the Company’s payroll practices (“Base Salary”).  Such salary and pay schedule may beadjusted from time to time, in accordance with normal business practice and inthe sole discretion of the Company’s Board of Directors.

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## 2.2                                 Bonus.  You will be entitled to receive an annualbonus in an amount equal to up to 40% of your then current base salary, to bepaid based upon your achievement of milestones and objectives to be mutuallyagreed upon annually by you and the Compensation Committee of the Board ofDirectors, provided that you remain an employee of the Company at the time suchbonuses are customarily paid.

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## 2.3                                 OtherBenefits. You shall be eligible to participate in all benefit programs thatthe Company establishes and generally makes available to its employees, if any,to the extent that your position, tenure, salary, age, health and otherqualifications make you eligible to

 

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## participate, including but not limited to the Company’shealth insurance plan, 401(k) plan, and policies governing paid time off.  In addition, you shall be entitled to three(3) weeks paid vacation per year, subject to the Company’s policies andprocedures, to be taken at such times as may be approved by the Company’s ChiefExecutive Officer or his designee.  TheCompany reserves the right to amend and/or terminate any plan, benefit, or programat any time with or without notice or publication.

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## 2.4                                 Option.  Subject to approval by the CompensationCommittee of the Board of Directors, on or about the Commencement Date you willbe granted, pursuant to the Company’s 1997 Stock Incentive Plan (the “Plan”)(a) an option to purchase 150,000 shares of Common Stock, $0.01 par value(“Common Stock”) of the Company pursuant to the terms and conditions of thePlan and a stock option agreement issued thereunder, such option to beexercisable at a price per share equal to the closing price of the Company’sCommon Stock on the NASDAQ Stock Market on date of grant, such option to vestand become exercisable, subject to your continued employment, at a rate of 20%of the total shares underlying the option on the first anniversary of the dateof grant and as to an additional 20% at the end of each full year thereafterand (b) an option, to purchase 50,000 shares of the Company’s Common Stockpursuant to the terms and conditions of the Plan and a stock option agreementissued thereunder, such option to be exercisable at a price per share equal tothe closing price of the Company’s Common Stock on the date of grant, suchoption to vest and become exercisable, subject to your continued employment, ata rate of 33.3333% of the total shares underlying the option on the firstanniversary of the date on which the Company books revenue from the commercialsale of its products in excess of $25.0 million (as reflected on the Company’sfinancial statements prepared in accordance with generally accepted accountingprinciples in the United States) in any continuous 12-month period and as to anadditional 33.3333% at the end of each full year thereafter; provided that suchoption shall vest, in any event, on the end of the seventh year after the dateof grant.

 

## 2.5                                 Reimbursementof Expenses.  The Company shallreimburse you for all reasonable travel, entertainment and other expensesincurred or paid by you in connection with, or related to, the performance ofyour duties, responsibilities or services as an employee of the Company, inaccordance with policies and procedures, and subject to limitations, adopted bythe Company from time to time.

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## 2.6                                 MovingExpenses.  The Company shallreimburse you for (a) customary moving expenses, (b) commission,origination and closing costs associated with the sale of your home inCalifornia and purchase of a home in Massachusetts, and (c) temporaryliving and commuting expenses (consisting of airfare, temporary housing andexpenses incident thereto), in an aggregate amount not to exceed $175,000,subject to any applicable taxes or withholdings.

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3.                                       TerminationUpon or in Anticipation of a Change in Control.

 

## 3.1                                 Inthe event your at-will employment is terminated by the Company without Cause (asdefined below) in anticipation of, or within twelve months after, a Change in

 

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## Control (as defined below), the Company shall continueto pay to you your salary as in effect on the date of termination and theamount of the annual bonus paid to you for the fiscal year immediatelypreceding the date of termination (payable in annualized monthly installments)and shall, provided you elect to receive group medical insurance pursuant tothe federal “COBRA” law,  29 U.S.C. § 1161etseq., provide to you reimbursement for the share of thepremium for group medical and dental that is paid by the Company for active andsimilarly-situated employees who receive the same type of coverage, until thedate 12 months after the date of termination, provided, however, that theCompany’s obligation to make the aforesaid payments or provide the aforesaidbenefits shall immediately terminate in the event that you violate theprovisions of Section 4 or Section  5 during such 12 monthperiod.  The payment to you of theamounts payable under this Section 3.1 shall be contingent upon your execution of a release in a formreasonably acceptable to the Company and (ii) shall constitute your sole remedyin the event of a termination of your employment in the circumstances set forthin this Section 3.1.

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## 3.2                                 “Cause”shall, for the purposes of Section 3.1, mean (a) your willful andcontinued failure to substantially perform your reasonable assigned duties(other than any such failure resulting from incapacity due to physical ormental illness), which failure is not cured within 30 days after a writtendemand for substantial performance is received by you from the Board whichspecifically identifies the manner in which the Board believes you have notsubstantially performed your duties; or (b) your willful engagement in illegalconduct or gross misconduct which is materially and demonstrably injurious tothe Company.  For purposes of this Section 3.2,no act or failure to act by you shall be considered “willful” unless it isdone, or omitted to be done, in bad faith and without reasonable belief thatyour action or omission was in the best interests of the Company.

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## 3.3                                 “Changein Control” means an event or occurrence set forth in any one or more ofsubsections (a) through (d) below (including an event or occurrence thatconstitutes a Change in Control under one of such subsections but isspecifically exempted from another such subsection):

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### (a)                                  theacquisition by an individual, entity or group (within the meaning of Section 13(d)(3)or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “ExchangeAct”)) (a “Person”) of beneficial ownership of any capital stock of the Companyif, after such acquisition, such Person beneficially owns (within the meaningof Rule 13d-3 promulgated under the Exchange Act) 50% or more of either (x) thethen-outstanding shares of common stock of the Company (the “OutstandingCompany Common Stock”) or (y) the combined voting power of the then-outstandingsecurities of the Company entitled to vote generally in the election ofdirectors (the “Outstanding Company Voting Securities”); provided,however, that for purposes of this subsection (a), the followingacquisitions shall not constitute a Change in Control: (i) any acquisitiondirectly from the Company (excluding an acquisition pursuant to the exercise,conversion or exchange of any security exercisable for, convertible into orexchangeable for common stock or voting securities of the Company, unless thePerson exercising, converting or exchanging such security acquired suchsecurity directly from the Company or an underwriter or agent of the Company),(ii) any acquisition by the Company, (iii)

 

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### any acquisition by any employee benefit plan (or related trust)sponsored or maintained by the Company or any corporation controlled by theCompany, or (iv) any acquisition by any corporation pursuant to a transactionwhich complies with clauses (i) and (ii) of subsection (c) of this Section 1.1;or

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### (b)                                 suchtime as the Continuing Directors (as defined below) do not constitute amajority of the Board (or, if applicable, the Board of Directors of a successorcorporation to the Company), where the term “Continuing Director” means at anydate a member of the  Board (i) who was amember of the Board on the date of the execution of this letter agreement or(ii) who was nominated or elected subsequent to such date by at least amajority of the directors who were Continuing Directors at the time of suchnomination or election or whose election to the Board was recommended orendorsed by at least a majority of the directors who were Continuing Directorsat the time of such nomination or election; provided, however,that there shall be excluded from this clause (ii) any individual whose initialassumption of office occurred as a result of an actual or threatened electioncontest with respect to the election or removal of directors or other actual orthreatened solicitation of proxies or consents, by or on behalf of a personother than the Board; or

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### (c)                                  theconsummation of a merger, consolidation, reorganization, recapitalization orstatutory share exchange involving the Company or a sale or other dispositionof all or substantially all of the assets of the Company in one or a series oftransactions (a “Business Combination”), unless, immediately following suchBusiness Combination, each of the following two conditions is satisfied: (i)all or substantially all of the individuals and entities who were thebeneficial owners of the Outstanding Company Common Stock and OutstandingCompany Voting Securities immediately prior to such Business Combinationbeneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and thecombined voting power of the then-outstanding securities entitled to votegenerally in the election of directors, respectively, of the resulting oracquiring corporation in such Business Combination (which shall include,without limitation, a corporation which as a result of such transaction ownsthe Company or substantially all of the Company’s assets either directly orthrough one or more subsidiaries) (such resulting or acquiring corporation isreferred to herein as the “Acquiring Corporation”) in substantially the sameproportions as their ownership, immediately prior to such Business Combination,of the Outstanding Company Common Stock and Outstanding Company VotingSecurities, respectively; and (ii) no Person (excluding any employee benefitplan (or related trust) maintained or sponsored by the Company or by the AcquiringCorporation) beneficially owns, directly or indirectly, 50% or more of the then outstanding shares of common stock of theAcquiring Corporation, or of the combined voting power of the then-outstandingsecurities of such corporation entitled to vote generally in the election ofdirectors (except to the extent that such ownership existed prior to theBusiness Combination); or

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### (d)                                 approvalby the stockholders of the Company of a complete liquidation or dissolution ofthe Company.

 

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4.                                       Non-Competitionand Non-Solicitation.

 

## 4.1                                 RestrictedActivities.  While you are employedby the Company and for a period of one year after the termination or cessationof such employment for any reason, you will not directly or indirectly:

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### (a)                                  Engagein any business or enterprise (whether as owner, partner, officer, director,employee, consultant, investor, lender or otherwise, except as the holder ofnot more than 1% of the outstanding stock of a publicly-held company) that iscompetitive with the Company’s business in the field of embolotherapy,including but not limited to any business or enterprise that develops,manufactures, markets, licenses, sells or provides any product or service inthe field of embolotherapy that competes with any product or service in thefield of embolotherapy developed, manufactured, marketed, licensed, sold orprovided, or planned to be developed, manufactured, marketed, licensed, sold orprovided, by the Company or any of its subsidiaries while you were employed bythe Company; or

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### (b)                                 Eitheralone or in association with others (i) solicit, or permit anyorganization directly or indirectly controlled by you to solicit, any employeeof the Company to leave the employ of the Company, or (ii) solicit foremployment, hire or engage as an independent contractor, or permit anyorganization directly or indirectly controlled by you to solicit foremployment, hire or engage as an independent contractor, any person who wasemployed by the Company at the time of the termination or cessation of youremployment with the Company; provided, that this clause (ii) shall notapply to the solicitation, hiring or engagement of any individual whoseemployment with the Company has been terminated for a period of six months orlonger.

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## 4.2                                 Extension.  If you violate the provisions of Section 4.1,you shall continue to be bound by the restrictions set forth in Section 4.1until a period of one year has expired without any violation of suchprovisions.

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## 4.3                                 Interpretation.  If any restriction set forth in Section 4.1is found by any court of competent jurisdiction to be unenforceable because itextends for too long a period of time or over too great a range of activitiesor in too broad a geographic area, it shall be interpreted to extend only overthe maximum period of time, range of activities or geographic area as to whichit may be enforceable.

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## 4.4                                 EquitableRemedies.  The restrictions containedin this Section 4 are necessary for the protection of the business andgoodwill of the Company and are considered by you to be reasonable for suchpurpose.  You agree that any breach ofthis Section 4 is likely to cause the Company substantial and irrevocabledamage which is difficult to measure. Therefore, in the event of any such breach or threatened breach, youagree that the Company, in addition to such other remedies which may beavailable, shall have the right to obtain an injunction from a courtrestraining such a breach or threatened breach and the right to specificperformance of the provisions of this Section 4 and you hereby waive theadequacy of a remedy at law as a defense to such relief.

 

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5.             Proprietary Information andDevelopments.

 

## 5.1                                 ProprietaryInformation.

 

### (a)                                  Youagree that all information, whether or not in writing, of a private, secret orconfidential nature concerning the Company’s business, business relationshipsor financial affairs (collectively, “Proprietary Information”) is and shall bethe exclusive property of the Company. By way of illustration, but not limitation, Proprietary Information mayinclude inventions, products, processes, methods, techniques, formulas,compositions, compounds, projects, developments, plans, research data, clinicaldata, financial data, personnel data, computer programs, customer and supplierlists, and contacts at or knowledge of customers or prospective customers ofthe Company.  You will not disclose anyProprietary Information to any person or entity other than employees of theCompany or use the same for any purposes (other than in the performance of yourduties as an employee of the Company) without written approval by an officer ofthe Company, either during or after your employment with the Company, unlessand until such Proprietary Information has become public knowledge withoutfault by you or unless required by law.

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### (b)                                 Youagree that all files, letters, memoranda, reports, records, data, sketches,drawings, laboratory notebooks, program listings, or other written,photographic, or other tangible material containing Proprietary Information,whether created by you or others, which shall come into your custody orpossession, shall be and are the exclusive property of the Company to be usedby you only in the performance of your duties for the Company.  All such materials or copies thereof and alltangible property of the Company in your custody or possession shall bedelivered to the Company, upon the earlier of (i) a request by the Companyor (ii) termination of your employment. After such delivery, you shall not retain any such materials or copiesthereof or any such tangible property.

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### (c)                                  Youagree that your obligation not to disclose or to use information and materialsof the types set forth in paragraphs (a) and (b) above, and yourobligation to return materials and tangible property, set forth inparagraph (b) above, also extends to such types of information, materialsand tangible property of customers of the Company or suppliers to the Companyor other third parties who may have disclosed or entrusted the same to theCompany or to you.

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## 5.2                                 Developments.

 

### (a)                                  Youwill make full and prompt disclosure to the Company of all inventions,improvements, discoveries, methods, developments, software, and works ofauthorship, whether patentable or not, which are created, made, conceived orreduced to practice by you or under your direction or jointly with othersduring your employment by the Company, whether or not during normal workinghours or on the premises of the Company (all of which are collectively referredto in this letter agreement as “Developments”).

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### (b)                                 Youagree to assign and do hereby assign to the Company (or any person or entitydesignated by the Company) all your right, title and interest in and to allDevelopments and all related patents, patent applications, copyrights andcopyright applications.

 

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### However, this paragraph (b) shall not apply to Developments whichdo not relate to the business or research and development conducted or plannedto be conducted by the Company at the time such Development is created, made,conceived or reduced to practice and which are made and conceived by you notduring normal working hours, not on the Company’s premises and not using theCompany’s tools, devices, equipment or Proprietary Information.  You understand that, to the extent thisletter agreement shall be construed in accordance with the laws of any statewhich precludes a requirement in an employee agreement to assign certainclasses of inventions made by an employee, this paragraph (b) shall beinterpreted not to apply to any invention which a court rules and/or theCompany agrees falls within such classes. You also hereby waive all claims to moral rights in any Developments.

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### (c)                                  Youagree to cooperate fully with the Company, both during and after youremployment with the Company, with respect to the procurement, maintenance andenforcement of copyrights, patents and other intellectual property rights (bothin the United States and foreign countries) relating to Developments.  You shall sign all papers, including, withoutlimitation, copyright applications, patent applications, declarations, oaths,formal assignments, assignments of priority rights, and powers of attorney,which the Company may deem necessary or desirable in order to protect itsrights and interests in any Development. You further agree that if the Company is unable, after reasonableeffort, to secure your signature on any such papers, any executive officer ofthe Company shall be entitled to execute any such papers as your agent andattorney-in-fact, and you hereby irrevocably designate and appoint eachexecutive officer of the Company as your agent and attorney-in-fact to executeany such papers on his behalf, and to take any and all actions as the Companymay deem necessary or desirable in order to protect its rights and interests inany Development, under the conditions described in this sentence.

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## 5.3                                 UnitedStates Government Obligations.  Youacknowledge that the Company from time to time may have agreements with otherparties or with the United States Government, or agencies thereof, which imposeobligations or restrictions on the Company regarding inventions made during thecourse of work under such agreements or regarding the confidential nature ofsuch work.  You agree to be bound by allsuch obligations and restrictions which are made known to you and to take allappropriate action necessary to discharge the obligations of the Company undersuch agreements.

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## 5.4                                 EquitableRemedies.  The restrictions containedin this Section 4 are necessary for the protection of the business andgoodwill of the Company and are considered by you to be reasonable for suchpurpose.  You agree that any breach ofthis Section 4 is likely to cause the Company substantial and irrevocabledamage which is difficult to measure. Therefore, in the event of any such breach or threatened breach, youagree that the Company, in addition to such other remedies which may beavailable, shall have the right to obtain an injunction from a courtrestraining such a breach or threatened breach and the right to specific performanceof the provisions of this Section 4 and you hereby waive the adequacy of aremedy at law as a defense to such relief.

 

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6.                                       Conflicts.

 

You represent that you are not bound by any employmentcontract, restrictive covenant or other restriction preventing you fromentering into employment with or carrying out your responsibilities for theCompany, or which is in any way inconsistent with the terms of this letter.

 

7.                                       Successorsand Assigns.  

 

This letter agreement shall be binding upon and inureto the benefit of both parties and their respective successors and assigns,including any corporation with which, or into which, the Company may be mergedor which may succeed to the Company’s assets or business, provided, however,that your obligations are personal and shall not be assigned by you.  Notwithstanding the foregoing, if the Companyis merged with or into a third party which is engaged in multiple lines ofbusiness, or if a third party engaged in multiple lines of business succeeds tothe Company’s assets or business, then for purposes of Section 4.1(a), theterm “Company” shall mean and refer to the business of the Company as itexisted immediately prior to such event and as it subsequently develops and notto the third party’s other businesses.

 

8.                                       At-WillStatus, Authorization to Work and Choice of Law.

 

This letter shall not be construed as an agreement,either express or implied, to employ you for any stated term, and shall in noway alter the Company’s policy of employment at will, under which both you andthe Company remain free to terminate the employment relationship, with orwithout cause, at any time, with or without notice.  Similarly, nothing in this letter shall beconstrued as an agreement, either express or implied, to pay you any compensationor grant you any benefit beyond the end of your employment with the Companyexcept as described in Section 3.1.

 

You agree to provide to the Company, within three daysof your hire date, documentation of your eligibility to work in the UnitedStates, as required by the Immigration Reform and Control Act of 1986.  You may need to obtain a work visa in orderto be eligible to work in the United States. If that is the case, your employment with the Company will beconditioned upon your obtaining a work visa in a timely manner as determined bythe Company.

 

This letter agreement shall be governed by andconstrued in accordance with the laws of the Commonwealth of Massachusetts(without reference to the conflicts of laws provisions thereof).  Any action, suit or other legal proceedingarising under or relating to any provision of this letter agreement shall becommenced only in a court of the Commonwealth of Massachusetts (or, ifappropriate, a federal court located within Massachusetts), and the Company andthe Employee each consents to the jurisdiction of such a court.  The Company and the Employee each herebyirrevocably waive any right to a trial by jury in any action, suit or otherlegal proceeding arising under or relating to any provision of this letteragreement.

 

Ifthis letter correctly sets forth the terms under which the Company will employyou, please sign the enclosed duplicate of this letter in the space providedbelow and return it to me.

 

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|   | Sincerely, |
|--------|------------|
|   |       |
|   | By:        | /s/  Richard J. Faleschini |   |
|   | Name:      | Richard  J. Faleschini |
|   | Title:     | President  and Chief Executive Officer |
|        |            |  |  |  |

 

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The foregoing correctlysets forth the terms of my

at-will employment by BioSphere Medical, Inc.,

includingbut not limited to Sections 4 and 5 above.

 
| /s/ Gary M.  Saxton |     |   |
|---------------------|----------|--------|
| Gary M. Saxton      |     |
|                |     |
|                |     |
| Date:               | 11/18/04 |   |   |
|                     |          |        |  |  |

 

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