**EXHIBIT 10.28**

 

# **Boston BiomedicaInc. – Consultant  Agreement**

# ** **

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

 

WHEREAS,the Company desires to assure itself that the benefits of the consultingabilities and talents of the Consultant relative to certain aspects of theCompany’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 tobe 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 Companyhereby engages the Consultant as an Executive Project Consultant to perform theservices set forth herein, and the Consultant hereby accepts such engagement.

 

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

 

3.               Duties.  Subject to the terms andconditions in this Agreement, the Consultant’s duties as Executive ProjectConsultant shall be to take an advisory role in directing the Company’s PCT andSource activities and the Company’s ownership interest in PanacosPharmaceuticals, Inc. (“Panacos”), each as further described below, and suchother duties as may be assigned to him by the President of the Company or theBoard from time to time.  The Consultantshall report to, be specifically accountable to and shall follow the directionsof the President of the Company for all day to day activities.  The Consultant shall also report and beresponsible to, and be subject to the authority of the Board.  The Consultant shall devote substantiallyall his business time and energy and will use his best efforts to perform hisduties hereunder.  The Consultant willbe given reasonable access to Company personnel to assist the Consultant in thefulfillment of his duties and responsibilities under this Agreement.

 

4.               Compensation. During the term of the Consultant’s engagement under this Agreement, theConsultant shall be paid $4,807.90 per week, which is equivalent to anannualized salary of $250,000.00, prorated for the number of weeks between thedate hereof and December 31, 2003 and based on a 52 week year.  Such amounts shall be paid periodically inaccordance with the Company’s normal payroll practices.  In addition to his salary, for the solepurpose of determining compensation and benefits, the Consultant shall beconsidered a full time employee and as such will be entitled to participate inand immediately eligible for health and medical insurance, disabilityinsurance, group life insurance, group travel insurance, and 401(k) retirementplan applicable to all full time employees of the Company as they may be ineffect from time to time.  TheConsultant’s prior service with the Company shall be attributed to Consultantin determining eligibility to participate in and the extent of benefits fromsuch benefit plans.  There shall be nowaiting period for participation in any such plan.  The Consultant shall  beeligible for vacation, holidays and sick days in accordance with the Company’spolicies applicable to all full time employees.

 

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

 

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6.               PCT Division.  TheConsultant shall produce a robust business plan for the PCT business byJuly 25, 2003.  The business planshall be in such form as shall be mutually agreed upon between the Company andthe Consultant, and the business plan shall be acceptable to the Board.  The business plan shall contain allinformation reasonably requested by the Board to be included therein and shallcomply with the funding sources and limitations identified and imposed by theBoard.  Without limiting the foregoing,such business plan shall include an operating budget, and shall include afinancial model for 5 years that includes a statement of operations, balancesheet and cash flows, with all the drivers of the business metrics modeled.In  performing his PCT duties set forthin Paragraph 7 above, until such time as the business plan, including theoperating budget, is approved by the Board, the Consultant shall limit themonthly losses from the PCT Division to an amount equal to or less than theaverage monthly amount of losses that have been incurred by the PCT Divisionsince January 1, 2003.  For thispurpose, however, the Consultant’s salary and related expenses will not beconsidered in the calculation of PCT’s losses. The Consultant further understands and agrees that if the President ofthe Company, representing the Board, so determines based on the Company’soverall financial condition, it may be necessary to further limit the amount oflosses incurred by the PCT Division.

 

7.               Source Business Plan. By September 30, 2003, the Consultantwill prepare and present to the Board an initial plan to substantially reduceand subsequently eliminate all losses from the Source Division byMarch 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 suchnet proceeds to repay all amounts due to Commerce Bank & Trust Company(“Commerce Bank”), whether owed personally or by any affiliate of theConsultant, including Resort Accommodations International LLC (“RAI”) (the“Commerce Bank Loan”) and all amounts owed to the Company by the Consultant orany such affiliate pursuant to (i) that certain Limited Guaranty by the Companyfor the benefit of Commerce Bank dated January 15, 2002, (ii) that certainJunior Participation Agreement also dated January 15, 2002 by and betweenCommerce Bank, RAI and the Company, (iii) that certain Pledge Agreement alsodated 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, theConsultant hereby ratifies, confirms and acknowledges his obligations to theCompany 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 orhis affiliates has funds or assets in excess of ordinary and routine livingexpenses, the Consultant shall repay the Commerce Bank Loan and the Company’sGuarantee.  For purposes of thepreceding sentence, funds or assets of the Consultant’s spouse shall onlyinclude any funds or assets transferred by the Consultant to his spouse at anytime in  the past or in the future, butnot including that certain real estate interest known as Unit 5235 (fourquarters) in the Marriott Grand Residence in South Lake Tahoe or any proceedstherefrom.

 

9.               Expenses.  During the term of thisAgreement, the Consultant shall obtain prior approval for any and allout-of-pocket expenses incurred in connection with the performance of his dutieshereunder and otherwise in accordance with the Company’s reimbursement policyand procedure as in effect from time to time. If approved in advance, the Consultant shall submit invoices for suchapproved expenses in accordance with the Company’s expense reimbursementprocedures, and the Company shall reimburse him for all such approvedout-of-pocket expenses.

 

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10.         WrittenReports.  The Company may request that plans, progressreports and results reports be provided by the Consultant on a weekly ormonthly basis as requested by the Company. The reports shall be in such form and setting forth such information anddata as is reasonably requested by the Company.

 

11.         Inventions.  Anyand all inventions, discoveries, developments and innovations conceived by theConsultant during this engagement relative to the duties under this Agreementshall be the exclusive property of the Company; and the Consultant herebyassigns 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 hisengagement hereunder and utilized by him in rendering duties to the Company arehereby licensed to the Company for use in its operations and for an infiniteduration.  This license isnon-exclusive, and may be assigned without the Consultant’s prior writtenapproval by the Company to a wholly-owned subsidiary of the Company.

 

12.         Confidentiality. The Consultant acknowledges that during hisengagement hereunder, he will have access to and become acquainted with varioustrade secrets, inventions, innovations, processes, information, records andspecifications owned or licensed by the Company and/or used by the Company inconnection with the operation of its business including, without limitation,the Company’s business and product processes, methods, customer lists, accountsand procedures.  The Consultant agreesthat he will not disclose any of the aforesaid, directly or indirectly, or useany of them in any manner, either during his engagement hereunder or at anytime thereafter, except as required in the course of his engagement by theCompany.  All files, records, documents,blueprints, specifications, information, letters, notes, media lists, originalartwork/creative, notebooks, and similar items relating to the business of theCompany whether prepared by the Consultant or otherwise coming into hispossession during his engagement hereunder, shall remain the exclusive propertyof the Company.  The Consultant shallnot retain any copies of the foregoing without the Company’s prior writtenpermission.  Upon the termination of hisengagement hereunder, or whenever requested by the Company, the Consultantshall immediately deliver to the Company all such files, records, documents,specifications, information, and other items in his possession or under hiscontrol.

 

13.         Disclosure.  TheConsultant shall not disclose the terms of this Agreement to any person withoutthe prior written consent of the Company. The Company shall issue a press release to announce the Consultant’sengagement.  The Company shall promptlysubmit the press release to the Consultant for his review and approval prior torelease to the public.

 

14.         Conflictsof Interest; Non-hire Provision.  The Consultant represents thathe is free to enter into this Agreement, and that this engagement does notviolate the terms of any agreement between the Consultant and any third party.  Further, the Consultant, in rendering his dutiesshall not utilize any invention, discovery, development, improvement,innovation, or trade secret in which he does not have a proprietaryinterest.  If the Company is not inbreach of its obligations under this Agreement, for a period of one year followingtermination of his engagement hereunder, the Consultant shall not, directly orindirectly hire, solicit, or encourage to leave the Company’s employment, anyemployee,  consultant, or contractor ofthe Company or hire any such employee, consultant, or contractor who has left the Company’s employment orcontractual engagement within one year of such employment or engagement, (otherthan such employees, consultants and contractors who have been involuntarilyterminated by the Company).

 

15.         Rightto Injunction.  The parties hereto acknowledge that theservices to be rendered by the Consultant under this Agreement, the rights andprivileges granted to the Company under the Agreement, the benefits to bereceived by the Consultant and the obligations of the

 

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Companyhereunder are of a special, unique, unusual, and extraordinary character whichgives them a peculiar value, the loss of which cannot be reasonably oradequately compensated by damages in any action at law, and the breach byeither party of any of the provisions of this Agreement will cause the otherirreparable injury and damage.  Theparties expressly agree that each party shall be entitled to injunctive andother equitable relief in the event of, or to prevent, a breach of anyprovision of this Agreement by the other party.  Resort to suchequitable relief, however, shall not be construed to be a waiver of any otherrights or remedies that such party may have for damages or otherwise.  The various rights and remedies of the  parties under this Agreement or otherwiseshall be construed to be cumulative, and no one of the them shall be exclusiveof any other or of any right or remedy allowed by law.

 

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

 

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

 

(A)                              any material act of personal dishonesty, or serious misconduct inconnection with the Consultant’s responsibilities to the Company under thisAgreement;

 

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

 

(C)                                continued material violations, breach or noncompliance by theConsultant of the Consultant’s obligations or covenants under this Agreementafter there has been delivered to the Consultant a written demand forperformance or compliance from the Company which describes the basis for theCompany’s belief that the Consultant has violated, breached or failed to complywith the Consultant’s duties or complied with the Consultant’s obligations orcovenants under this Agreement and such violations, breach or noncompliancehave not been corrected or cured by the Consultant within ten (10) businessdays following such demand;

 

(D)                               continued failure or refusal to comply with the written policies orreasonable directives of the Company after there has been delivered to theConsultant a written demand for performance or compliance from the Companywhich describes the basis for the Company’s belief that the Consultant hasfailed or refused to comply with such policies or directives and such failureor 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 controlledsubstance without a prescription or the abuse of alcohol which in any wayimpairs the Consultant’s ability to carry out Consultant’s duties andresponsibilities under this Agreement.

 

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17.         Terminationof Duties, Responsibilities and Authority.  Although the Consultant’sengagement hereunder shall continue through December 31, 2003, the Boardmay reduce, limit or terminate part or all of the Consultant’s duties,responsibilities and authority to provide any services under this Agreement atany time without cause, provided however, that if the Board reduces, limits orterminates part or all of such duties, responsibilities and authority withoutcause prior to December 31, 2003, it shall continue to pay the Consultantall of the compensation, including benefits, which otherwise would have beenpaid through December 31, 2003 had the Board not so terminated suchduties, responsibilities and authority. In such event, the Consultant shall continue to be referred to as theCompany’s Executive Project Consultant.

 

18.         Taxes.  TheCompany shall withhold taxes with respect to the Consultant’s compensationhereunder.

 

19.         Successorsand Assigns.  All of the provisions of this Agreementshall be binding upon and inure to the benefit of the parties hereto and theirrespective heirs, if any, successors, and assigns, provided, however, theConsultant shall not assign any of his rights under this Agreement, or delegatethe performance of any of his duties hereunder, without the prior writtenconsent of the Company.

 

20.         Choiceof Law.  The laws of the Commonwealth ofMassachusetts shall govern the validity of this Agreement, the construction ofits terms and the interpretation of the rights and duties of the partieshereto.

 

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

 

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

 

23.         Waiver.  Nofailure or delay by either part in exercising any right under this Agreementwill 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 theother shall not operate or be construed as a continuing waiver.

 

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

 

Ifto the Consultant:

 

RichardT. Schumacher

65Black Pond Lane

Taunton,MA 02780

 

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Ifto the Company:

 

BostonBiomedica, Inc.

375West Street

WestBridgewater, MA 02379

 

Anyparty hereto may change its address for purposes of this paragraph by writtennotice given in the manner provided above.

 

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

 

26.         EntireUnderstanding.  This document and any exhibit attachedconstitute the entire understanding and agreement of the parties, and any andall prior agreements, understandings, and representations whether written ororal are hereby terminated and canceled in their entirety and are of no furtherforce and effect.

 

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

 

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

 

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

 

INWITNESS WHEREOF the undersigned have executed this Agreement as of the day andyear first written above.  The partieshereto 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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