UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(Amendment No. 2)*
Boston Biomedica, Inc.
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(Name of Issuer)
Common Stock, $.01 par value per share
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(Title of Class of Securities)
100560 10 1
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(CUSIP Number)
Nutter, McClennen & Fish, LLP
World Trade Center West
155 Seaport Boulevard
Boston, MA 02210-2604
Attn: Michael J. Bohnen, Esq.
617-439-2000
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
July 7, 2003
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check
the following box [ ].
Note: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-1(a) for
other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 6 Pages)
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*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
Item 4. Purpose of Transaction.
On July 7, 2003, the Committee and the Issuer entered into an
Agreement, which provides that:
(a) Richard T. Schumacher has withdrawn his nominations of R.
Wayne Fritzsche and Russell B. Richerson for election as directors of
the Issuer at the Issuer's 2003 Annual Meeting of Stockholders, or
special meeting in lieu thereof (the "Meeting"), which the Issuer
currently anticipates will occur before the end of September 2003,
and Mr. Schumacher will not proceed with or undertake any proxy
solicitation for the Meeting, provided that the Issuer has complied
with all of its agreements with him; and
(b) Upon the expiration of the term of Francis E. Capitanio
as a member of the Issuer's board of directors at the Meeting, he
will not stand for re-election, and the board will select either Mr.
Fritzsche or Mr. Richerson as the nominee of the board to fill the
vacancy on the board left by Mr. Capitanio.
As a result of this Agreement, the Committee has been discontinued.
Item 7. Material to be Filed as Exhibits.
The Agreement described in Item 4 is attached hereto as Exhibit A.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true,
complete, and correct.
Date: July 10, 2003 R. Wayne Fritzsche
Russell B. Richerson, Ph.D.
Richard T. Schumacher
By: /s/ Richard T. Schumacher
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Richard T. Schumacher
Attorney-in-Fact
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Exhibit A
Boston Biomedica Inc. - Agreement
This Agreement is entered into as of the 7th day of July, 2003, between
Boston Biomedica Inc. ("the Company") and Richard T. Schumacher
("Schumacher").
WHEREAS, Schumacher has proposed two nominees for election to the Board of
Directors of the Company (the "Board") at the next Annual Meeting of
Stockholders and is willing to withdraw such nominations and not proceed
with any proxy solicitation for such Annual Meeting of Stockholders in
consideration of the Company's entering into this Agreement;
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. Board of Directors. Upon expiration of the term of Fran Capitanio as
a member of the Board, he will not stand for reelection. The Board,
following a further review and consideration of the qualifications of
R. Wayne Fritzsche and Russell B. Richerson as candidates to fill the
vacancy, will select one of these individuals as the nominee of the
Board to fill the vacancy on the Board left by Fran Capitanio. The
Company currently anticipates holding its 2003 Annual Meeting of
Stockholders before the end of September 2003.
2. Proxy Solicitation. By entering into this Agreement, Schumacher
hereby withdraws his two nominees for election to the Board for the
Company's 2003 Annual Meeting of Stockholders, or special meeting in
lieu thereof. Schumacher shall not proceed with or undertake any
proxy solicitation for such Annual Meeting of Stockholders, or
special meeting in lieu thereof, provided that the Company has
complied with all of its agreements with Schumacher.
3. Disclosure. Promptly following the execution of this Agreement,
Schumacher shall amend his Schedule 13D filing with the Securities
and Exchange Commission to reflect the withdrawal of his nominees for
election as directors for the Company's next Annual Meeting of
Stockholders and his agreement not to proceed with the solicitation
of any proxies for such meeting. He shall submit such amendment to
Schedule 13D to the Company for its review and comment prior to
filing with the Securities and Exchange Commission. The Company
shall issue a press release to announce Schumacher's amendment to his
Schedule 13D. The Company shall promptly submit the press release to
Schumacher for his review and approval prior to release to the
public.
4. Right to Injunction. The parties hereto acknowledge that the actions
to be taken by Schumacher under this Agreement, the rights and
privileges granted to the Company under the Agreement, the benefits
to be received by Schumacher and the obligations of the 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.
5. 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, Schumacher 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.
6. 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.
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7. 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.
8. 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.
9. 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.
10. 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 Schumacher:
Richard T. Schumacher
65 Black Pond Lane
Taunton, MA 02780
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.
11. Modification or Amendment. No amendment, change or modification of
this Agreement shall be valid unless in writing signed by the parties
hereto.
12. 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.
13. 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.
14. 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.
15. 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.
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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.
By: /s/ Kevin W. Quinlan /s/ Richard T. Schumacher
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Kevin W. Quinlan Richard T. Schumacher
President, Chief Operating
Officer and Treasurer
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