exv10w17



 







EXHIBIT 10.17




AMENDED AND RESTATED CONSULTING AGREEMENT



This Amended and Restated Consulting Agreement is made as of April 1, 2006 (the “Effective Date”),
between Electro-Optical Sciences, Inc, a Delaware corporation (the “Company”) and Gerald Wagner
Consulting LLC (the “Consultant”).




     WHEREAS, the Consultant and the Company are parties to a certain Consulting Agreement dated as
of June 1, 2005 (the “Prior Agreement”); and



     WHEREAS, the parties to the Prior Agreement now wish to revise their relationship so as to
provide for the provision of services of an anticipated longer duration period.



     NOW THEREFORE, the parties agree as follows:


1. Services. The field of interest for consulting hereunder is the continued direction of the
Company’s MelaFind product development effort and the implementation of the manufacturing process
once production of clinical trial prototypes becomes feasible.



The Consultant will make himself available in person at the Company’s offices or other locations as
agreed upon during the term of this Agreement, as reasonably requested by the Company.



2. Consideration. In consideration for the services provided by Consultant under the terms of this
Agreement, Consultant shall be compensated as set forth below.



     2.1 The Company will pay the Consultant the annual amount of one hundred eighty thousand
dollars ($180,000.00), payable monthly over the term of this Agreement.




     2.2 The Consultant acknowledges that, in connection with his continued engagement by the
Company on March 24, 2006 he was granted non-qualified stock options to purchase 50,000 shares of
the Company’s common stock at fair market value.



     2.3 Reasonable expenses of the Consultant incurred at the request of the Company (including
travel expenses incurred in connection with Company-related business) will be reimbursed promptly
by the Company, subject to customary verification, in accordance with the Company’s standard
expense reimbursement and travel policy.



     3. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date of this
Agreement and will end (a) at the option of Consultant or the Company, at any time by providing
thirty (30) days’ prior written notice to the other party (during which thirty (30) day period
Consultant shall continue to perform its duties hereunder) or (b) immediately upon the mutual
agreement of the Company and Consultant.



 









 




4. Certain Other Contracts.




     4.1 The Consultant will not disclose to the Company any information that the Consultant is
obligated to keep secret pursuant to an existing confidentiality agreement with a third party, and
nothing in this Agreement will impose any obligation on the Consultant to the contrary.



     4.2 The consulting work performed hereunder will not be conducted on time that is required to
be devoted to any other third party. The Consultant shall not use the funding, resources and
facilities of any other third party to perform consulting work hereunder and shall not perform the
consulting work hereunder in any manner that would give any third party rights to the product of
such work.



     4.3 The Consultant has disclosed and, during the Term, will disclose to the Chief Executive
Officer of the Company any conflicts between this Agreement and any other agreements binding the
Consultant.


5. Exclusive Services during the Term. The Consultant agrees that during the Term of this
Agreement he will not, exclusive of any research obligations to any third party, directly or
indirectly, (i) provide any services to any other business or commercial entity engaged in the
manufacture, development, marketing or sale of any medical device used in connection with the
diagnosis of melanoma (the “Field of Interest”), (ii) participate in the formation of any business
or commercial entity in the Field of Interest or (iii) solicit or hire away, or assist or
facilitate the solicitation or hiring of, any employee or consultant of the Company.



6. Direction of Projects and Inventions to the Company. Subject to the Consultant’s obligations
and confidentiality obligations to third parties, during the Term of this Agreement, the Consultant
will use his best efforts to disclose to the Chief Executive Officer of the Company, on a
confidential basis, technology and product opportunities which come to the attention of the
Consultant in the Field of Interest, and any invention, improvement, discovery, process, formula
or method or other intellectual property relating to or useful in, the Field of Interest
(collectively “New Discoveries”), whether or not patentable or copyrightable, to the extent the New
Discoveries do not arise from any research undertaken by the Consultant as an employee of any third
party.



7. Inventions Discovered by the Consultant While Performing Services Hereunder.




     7.1 The Consultant will promptly and fully disclose to the Chief Executive Officer of the
Company any invention, improvement, discovery, process, formula, technique, method, trade mark,
trade secret, mask work, or other intellectual property, whether or not patentable, whether or not
copyrightable (collectively, “Invention”) made, conceived, developed, or first reduced to practice
by the Consultant, either alone or jointly with others, while performing services hereunder. All
such Inventions are work made for hire to the extent allowed by law and, in addition, Consultant
hereby assigns to



 









 




the Company all of his right, title and interest in and to any such Inventions. The Consultant
will execute any documents necessary to perfect the assignment of such Inventions to the Company
and to enable the Company to apply for, obtain, and enforce patents or copyrights in any and all
countries on such Inventions. The Consultant hereby irrevocably designates the Secretary of the
Company as his agent and attorney-in-fact to execute and file any such document and to do all
lawful acts necessary to apply for and obtain patents and copyrights, and to enforce the Company’s
rights under this paragraph. This Section 7 will survive the termination of this Agreement.




     7.2 If any part of the Invention is based on, incorporates, or is an improvement or derivative
of, or cannot be reasonably and fully made, used, reproduced, distributed and otherwise practiced
or exploited without using, infringing or violating technology or intellectual property rights
owned or licensed by Consultant and not assigned hereunder, Consultant hereby grants Company a
perpetual, irrevocable, worldwide royalty-free, non-exclusive, right and license, with right to
sublicense, to exploit and exercise all such technology and intellectual property rights in support
of Company’s exercise or exploitation of the Inventions, other work performed hereunder, or any
assigned rights (including any modifications, improvements and derivatives of any of them).


8. Confidentiality.




     8.1 The Consultant acknowledges that, during the course of performing his services hereunder,
the Company will be disclosing information to the Consultant, and the Consultant will be developing
information related to the Field of Interest, Inventions, projects, products, potential customers,
personnel, business plans, and finances, as well as other commercially valuable information
(collectively “Confidential Information”). The Consultant acknowledges that the Company’s business
is extremely competitive, dependent in part upon the maintenance of secrecy, and that any
disclosure of the Confidential Information would result in serious harm to the Company.



     8.2 The Consultant agrees that the Confidential Information will be used by the Consultant
only in connection with consulting activities hereunder, and will not be used in any way that is
detrimental to the Company.



     8.3 The Consultant agrees not to disclose, directly or indirectly, the Confidential
Information to any third person or entity, other than representatives or agents of the Company.
The Consultant will treat all such information as confidential and proprietary property of the
Company.



     8.4 The term “Confidential Information” does not include information that was: (i) publicly
known and made generally available in the public domain prior to the time of disclosure by the
disclosing party; (ii) becomes publicly known and made generally available after disclosure by the
disclosing party to the receiving party through no action or inaction of the receiving party; (iii)
is already in the possession of the receiving party at the time of disclosure by the disclosing
party as shown by the receiving party’s files and records immediately prior to the time of
disclosure; (iv) is obtained by



 









 




the receiving party from a third party without a breach of such third party’s obligations of
confidentiality; and (v) is independently developed by the receiving party without use of or
reference to the disclosing party’s Confidential Information, as shown by documents and other
competent evidence in the receiving party’s possession.




     8.5 The Consultant may disclose any Confidential Information that is required to be disclosed
by law, government regulation or court order. If disclosure is required, the Consultant will give
the Company advance notice so that the Company may seek a protective order or take other action
reasonable in light of the circumstances.



     8.6 Upon termination of this Agreement, the Consultant will promptly return to the Company all
materials containing Confidential Information as well as data, records, reports and other property,
furnished by the Company to the Consultant or produced by the Consultant in connection with
services rendered hereunder, together with all copies of any of the foregoing. Notwithstanding
such return, the Consultant shall continue to be bound by the terms of the confidentiality
provisions contained in this Section 8 for a period of three years after the termination of this
Agreement.


9. Use of Name. It is understood that the name of the Consultant and Consultant’s affiliation with
any third party will appear in disclosure documents required by securities laws, and in other
regulatory and administrative filings in the ordinary course of the Company’s business. The
above-described uses will be deemed to be noncommercial uses. The name of the Consultant or any
third party will not be used for any commercial purpose without the Consultant’s consent.



10. No Conflict; Valid and Binding. The Consultant represents that neither the execution of this
Agreement nor the performance of the Consultant’s obligations under this Agreement will result in a
violation or breach of any other agreement by which the Consultant is bound. The Company
represents that this Agreement has been duly authorized and executed and is a valid and legally
binding obligation of the Company, subject to no conflicting agreements.



11. Notices. Any notice provided under this Agreement shall be in writing and shall be deemed to
have been effectively given (i) upon receipt when delivered personally, (ii) one day after sending
when sent by private express mail service (such as Federal Express), or (iii) 5 days after sending
when sent by regular mail to the following address:



In the case of the Company:



Electro-Optical Sciences, Inc

3 West Main Street, Suite 201

Irvington, NY 10553




 









 




In the case of the Consultant:



Gerald Wagner Consulting LLC

970 Route 9W

Upper Grandview, NY 10960



or to other such address as may have been designated by the Company or the Consultant by notice to
the other given as provided herein.



12. Independent Contractor; Withholding. The Consultant will at all times be an independent
contractor, and as such will not have authority to bind the Company. Consultant will not act as an
agent nor shall he be deemed to be an employee of the Company for the purposes of any employee
benefit program, unemployment benefits, or otherwise. The Consultant recognizes that no amount
will be withheld from his compensation for payment of any federal, state, or local taxes and that
the Consultant has sole responsibility to pay such taxes, if any, and file such returns as shall be
required by applicable laws and regulations. Consultant shall not enter into any agreements or
incur any obligations on behalf of the Company.



13. Assignment. Due to the personal nature of the services to be rendered by the Consultant, the
Consultant may not assign this Agreement. The Company may assign all rights and liabilities under
this Agreement to a subsidiary or an affiliate or to a successor to all or a substantial part of
its business and assets without the consent of the Consultant. Subject to the foregoing, this
Agreement will inure to the benefit of and be binding upon each of the heirs, assigns and
successors of the respective parties.



14. Severability. If any provision of this Agreement shall be declared invalid, illegal or
unenforceable, such provision shall be severed and the remaining provisions shall continue in full
force and effect.



15. Remedies. The Consultant acknowledges that the Company would have no adequate remedy at law to
enforce Sections 5, 7 and 8 hereof. In the event of a violation by the Consultant of such
Sections, the Company shall have the right to obtain injunctive or other similar relief, as well as
any other relevant damages, without the requirement of posting bond or other similar measures.



16. Governing Law; Entire Agreement; Amendment. This Agreement shall be governed by the laws of
the State of New York applicable to agreements made and to be performed within such State, and
represents the entire understanding of the parties with respect to the subject matter hereof. It
supersedes the Prior Agreement except with respect to matters (payment for subsequent invoices,
confidentiality, and the like) which by their nature should survive the termination of that
agreement. It may only be amended in writing.




 









 





     IN WITNESS WHEREOF, this Agreement may be executed in counterparts, each of which shall
constitute an original and all of which together shall constitute one instrument, effective as of
the date first above written.



	 	 	 	 	 	 	 
	Electro-Optical Sciences, Inc:	 	Gerald Wagner Consulting LLC
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	By:

	 	/s/ Joseph V. Gulfo
	 	By:
	 	/s/ Gerald Wagner
	 

	 	Joseph V. Gulfo, M.D. M.B.A.
	 	 	 	Gerald Wagner
	 

	 	President