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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
 Washington, D.C. 20549
 FORM 10-Q
 þ
    
    QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
 For the quarterly period ended June 30, 2009
 o
    
    TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
 For the transition period from                    to
 Commission file number 000  51481
 ELECTRO-OPTICAL SCIENCES, INC.
 (Exact name of Registrant as specified in its charter)
 Delaware(State or Other Jurisdiction of 
Incorporation or Organization)
    
    13-3986004(I.R.S. Employer
Identification No.)3 West Main Street, Suite 201
Irvington, New York(Address of Principal Executive offices)
    
    10533(Zip Code)
 Registrants Telephone Number, including area code:
(914) 591-3783
  þ o
  Large accelerated filer o
    
    Accelerated filer þ
    
    Non-accelerated filer o
    
    Smaller reporting company o(Do not check if a smaller reporting company)
  o o
  o þ




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##### 



Electro-Optical Sciences, Inc.
Table of Contents
  
 PagePART I. FINANCIAL INFORMATIONITEM 1. Financial StatementsCondensed Balance Sheets as of June 30, 2009 (unaudited) and December 31, 2008
    
    
    2Condensed Statements of Operations (unaudited) for the three and six month
periods ended June 30, 2009 and 2008
    
    
    3Condensed Statements of Cash Flows (unaudited) for the six month periods
ended June 30, 2009 and 2008
    
    
    4Notes to Condensed Financial Statements (unaudited)
    
    
    5ITEM 2. Managements Discussion and Analysis of Financial Condition and
Results of Operations
    
    
    15ITEM 3. Quantitative and Qualitative Disclosures about Market Risk
    
    
    22ITEM 4. Controls and Procedures
    
    
    22PART II. OTHER INFORMATIONITEM 1. Legal Proceedings
    
    
    23ITEM 1A. Risk Factors
    
    
    23ITEM 2. Unregistered Sales of Equity Securities and Use of Proceeds
    
    
    25ITEM 3. Defaults Upon Senior Securities
    
    
    26ITEM 4. Submission of Matters to a Vote of Security Holders
    
    
    26ITEM 5. Other Information
    
    
    27ITEM 6. Exhibits
    
    
    28SIGNATURES
    
    
    29EXHIBIT INDEX
    
    
    30EX-31.1: CERTIFICATIONEX-31.2: CERTIFICATIONEX-32.1: CERTIFICATIONEX-31.1EX-31.2EX-32.1
  1




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ELECTRO-OPTICAL SCIENCES, INC.
CONDENSED BALANCE SHEETS
 June 30,
    
    
    December 31,2009
    
    
    2008(unaudited)
    
    
    *ASSETSCurrent Assets:Cash and cash equivalents
    
    $
    7,746,799
    
    
    $
    15,069,939Marketable securities
    
    
    
    
    
    
    390,512Prepaid expenses and other current assets
    
    
    303,741
    
    
    
    375,612Total Current Assets
    
    
    8,050,540
    
    
    
    15,836,063Property and equipment, net
    
    
    577,676
    
    
    
    643,383Patents and trademarks, net
    
    
    88,958
    
    
    
    94,908Deferred offering costs
    
    
    199,523
    
    
    
    Other assets
    
    
    46,339
    
    
    
    45,276Total Assets
    
    $
    8,963,036
    
    
    $
    16,619,630LIABILITIES AND STOCKHOLDERS EQUITYCurrent Liabilities:Accounts payable (includes related
parties of $7,500 as of June 30, 2009 and
$17,500 as of December 31, 2008)
    
    $
    422,245
    
    
    $
    634,394Accrued expenses
    
    
    891,308
    
    
    
    832,228Deferred income
    
    
    
    
    
    
    36,085Other current liabilities
    
    
    20,791
    
    
    
    27,466Total Current Liabilities
    
    
    1,334,344
    
    
    
    1,530,173COMMITMENTS AND CONTINGENCIES (Note 9)Stockholders EquityPreferred stock  $.10 par value;
authorized 10,000,000 shares; issued and
outstanding: noneCommon stock  $.001 par value;
authorized 30,000,000 shares; issued and
outstanding 17,686,122 shares at June 30,
2009 and 17,634,498 at December 31, 2008
    
    
    17,686
    
    
    
    17,634Additional paid-in capital
    
    
    76,202,952
    
    
    
    75,845,953Accumulated other comprehensive loss
    
    
    
    
    
    
    (6,868
    )Accumulated deficit
    
    
    (68,591,946
    )
    
    
    (60,767,262
    )Stockholders Equity
    
    
    7,628,692
    
    
    
    15,089,457Total Liabilities and Stockholders Equity
    
    $
    8,963,036
    
    
    $
    16,619,630
 
 *
    
    Derived from the audited balance sheet as of December 31, 2008  2




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ELECTRO-OPTICAL SCIENCES, INC.
CONDENSED STATEMENTS OF OPERATIONS
(unaudited)
 Three months ended June 30,
    
    
    Six months ended June 30,2009
    
    
    2008
    
    
    2009
    
    
    2008Operating expenses:Research and development
    
    $
    2,300,602
    
    
    $
    3,623,990
    
    
    $
    4,835,016
    
    
    $
    6,669,083General and administrative
    
    
    1,571,812
    
    
    
    1,474,679
    
    
    
    3,098,552
    
    
    
    2,914,474Operating loss
    
    
    (3,872,414
    )
    
    
    (5,098,669
    )
    
    
    (7,933,568
    )
    
    
    (9,583,557
    )Interest income
    
    
    9,285
    
    
    
    92,626
    
    
    
    34,768
    
    
    
    274,598Other income
    
    
    28,031
    
    
    
    54,772
    
    
    
    74,116
    
    
    
    80,858Net loss:
    
    $
    (3,835,098
    )
    
    $
    (4,951,271
    )
    
    $
    (7,824,684
    )
    
    $
    (9,228,101
    )Basic and diluted net loss
per common share
    
    $
    (0.22
    )
    
    $
    (0.32
    )
    
    $
    (0.44
    )
    
    $
    (0.60
    )Basic and diluted weighted
average number of common
shares outstanding
    
    
    17,656,686
    
    
    
    15,407,137
    
    
    
    17,646,067
    
    
    
    15,404,510
  3




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ELECTRO-OPTICAL SCIENCES, INC.
CONDENSED STATEMENTS OF CASH FLOWS
(unaudited)
 Six Months Ended June 30,2009
    
    
    2008Cash flows from operating activities:Net loss
    
    $
    (7,824,684
    )
    
    $
    (9,228,101
    )Adjustments to reconcile net loss to net cash used in operating
activities:Depreciation and amortization
    
    
    163,338
    
    
    
    144,309Non-cash compensation
    
    
    225,844
    
    
    
    179,575Amortization of discount on marketable securities
    
    
    
    
    
    
    882Changes in operating assets and liabilities:Increase in other assets
    
    
    (1,063
    )
    
    
    Decrease in prepaid expenses and other current assets
    
    
    71,871
    
    
    
    259,320(Decrease) increase in accounts payable and accrued expenses
    
    
    (153,069
    )
    
    
    676,551Decrease in deferred income
    
    
    (36,085
    )
    
    
    (49,708
    )(Decrease) increase in other current liabilities
    
    
    (6,675
    )
    
    
    3,131Net cash used in operating activities
    
    
    (7,560,523
    )
    
    
    (8,014,041
    )Cash flows from investing activities:Purchases of property and equipment
    
    
    (91,681
    )
    
    
    (278,133
    )Sale of marketable securities
    
    
    397,380
    
    
    
    833,904Net cash provided by investing activities
    
    
    305,699
    
    
    
    555,771Cash flows from financing activities:Proceeds from exercise of stock options
    
    
    30,707
    
    
    
    14,070Proceeds from exercise of stock warrants
    
    
    100,500
    
    
    
    10,586Costs related to Committed Equity Financing Facility
    
    
    (199,523
    )
    
    
    Net cash (used in) provided by financing activities
    
    
    (68,316
    )
    
    
    24,656Net decrease in cash and cash equivalents
    
    
    (7,323,140
    )
    
    
    (7,433,614
    )Cash and cash equivalents at beginning of period
    
    
    15,069,939
    
    
    
    19,196,589Cash and cash equivalents at end of period
    
    $
    7,746,799
    
    
    $
    11,762,975Supplemental Schedule of Non-cash Investing and Financing ActivitiesUnrealized gain on marketable securities
    
    $
    6,868
    
    
    $
    8,735
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ELECTRO-OPTICAL SCIENCES, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS
(In thousands, except for share and per share data)
(unaudited)
 1. ORGANIZATION AND BASIS OF PRESENTATION
 ®
 ®
 
    
    a hand-held imaging device, which employs high precision optics and multi-spectral illumination
(multiple colors of light including near infra-red);
    
    a proprietary databaseof pigmented skin lesions, which we believe to be the largest in the U.S.; and
    
    lesion classifiers, which are sophisticated mathematical algorithms that extract lesion feature
information and classify lesions.
 ® ® ®
 ®
 ®
  5




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®
   2. MARKETABLE SECURITIES
   3. COMPREHENSIVE LOSS
   6




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4. USE OF ESTIMATES
  5. RECENTLY ADOPTED ACCOUNTING PRONOUNCEMENTS
 Subsequent Events
 Accounting for Assets
Acquired and Liabilities Assumed in a Business Combination That Arise from Contingencies
    7




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6. RECENT ACCOUNTING PRONOUNCEMENTS
 FASB Accounting Standards
Codification TM  and the Hierarchy of Generally Accepted Accounting Principles. FASB Accounting Standards Codification TM
 7. NET LOSS PER COMMON SHARE
  June 30,2009
    
    2008Common stock options
    
    
    2,007,473
    
    
    
    1,901,660Warrants
    
    
    1,307,669
    
    
    
    1,124,544Total
    
    
    3,315,142
    
    
    
    3,026,204
 8. STOCK-BASED COMPENSATION
  8




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For the Six Months
    
    For the Six MonthsEnded June 30, 2009
    
    Ended June 30, 2008Expected life
    
    5 years
    
    5 yearsExpected volatility
    
    
    60
    %
    
    
    60
    %Risk-free interest rate
    
    
    1.69-2.54
    %
    
    
    2.95-3.72
    %Dividend yield
    
    
    0
    %
    
    
    0
    %
      9




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WeightedWeighted
    
    AverageAverage
    
    RemainingExercise
    
    Contractual
    
    AggregateNumber of
    
    Price per
    
    Term in
    
    IntrinsicShares
    
    Share
    
    Years
    
    ValueOutstanding at December 31, 2008
    
    
    2,069,080
    
    
    $
    4.39
    
    
    
    5.8Granted
    
    
    28,000
    
    
    
    3.20
    
    
    
    4.8Exercised
    
    
    (36,107
    )
    
    
    0.85
    
    
    
    Forfeited or expired
    
    
    (53,500
    )
    
    
    4.35
    
    
    
    Outstanding at June 30, 2009
    
    
    2,007,473
    
    
    $
    4.48
    
    
    
    5.4
    
    
    $
    6,644Vested and exercisable at June 30, 2009
    
    
    833,285
    
    
    $
    4.52
    
    
    
    3.6
    
    
    $
    2,726
 Options OutstandingWeighted-
    
    
    
    
    
    Options ExercisableAverage
    
    Weighted
    
    
    
    
    
    Weighted-Remaining
    
    Average
    
    
    
    
    
    AverageNumber
    
    Contractual
    
    Exercise
    
    Number
    
    ExerciseRange of Exercise Prices
    
    Outstanding
    
    Life
    
    Price
    
    Exercisable
    
    Price$.01-$.46
    
    
    105,000
    
    
    0.5 years
    
    $
    .46
    
    
    
    80,000
    
    
    $
    .46$.47-$1.00
    
    
    78,471
    
    
    2.8 years
    
    $
    1.00
    
    
    
    78,471
    
    
    $
    1.00$1.01-$8.32
    
    
    1,824,002
    
    
    5.8 years
    
    $
    4.86
    
    
    
    674,814
    
    
    $
    5.41$.01-$8.32
    
    
    2,007,473
    
    
    5.4 years
    
    $
    4.48
    
    
    
    833,285
    
    
    $
    4.52
    9. COMMITMENTS AND CONTINGENCIES
   2009
    
    2010
    
    2011
    
    2012
    
    2013
    
    2014-16$169
    
    $
    356
    
    
    $
    384
    
    
    $
    412
    
    
    $
    441
    
    
    $
    1,329
 ®
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®
   10. STOCKHOLDERS EQUITY
       11




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11. WARRANTS
    Financing that closed November 3, 2006: warrants to purchase up to 346,857 shares of the
Companys common stock were issued. At June 30, 2009, 331,857 of these warrants remain
outstanding. These warrants are five-year warrants with an exercise price of $6.70 per share,Financing that closed August 3, 2007: warrants to purchase up to 500,041 shares of the
Companys common stock were issued. At June 30, 2009, 500,041 of these warrants remain
outstanding. The warrants are five-year warrants with an exercise price of $8.00 per share.
   12. RELATED PARTY CONSULTING AGREEMENTS
  12




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Consulting Agreement with Breaux Castleman
 ®
 Consulting Agreement with Marek Elbaum, Ph.D.
   Consulting Agreement with Robert Friedman, M.D.
 ®
  Consulting Agreement with Gerald Wagner, Ph.D.
 ®
  13




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Consulting Agreement with Anne Egger
  13. OTHER INCOME
  ® ® ®
 14. SUBSEQUENT EVENTS
    14




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ELECTRO-OPTICAL SCIENCES, INC.
MANAGEMENTS DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
   Overview
 ®
 ®
 ®
 ® ® ®
 15




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Liquidity and Capital Resources
       ®
  16




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Cash Flows from Operating Activities (in thousands)
  Cash Flows from Investing Activities
 ®
 Cash Flows from Financing Activities
  Operating Capital and Capital Expenditure Requirements
 ® ® ® ® ®
  ®
 
    
    The schedule, costs, and results of our clinical trials;
    
    The success of our research and development efforts;
    
    The costs and timing of regulatory approval;
    
    Reimbursement amounts for the use of MelaFind®that we are
able to obtain from Medicare and third party payers, or the amount of
direct payments we are able to obtain from patients and/or physicians
utilizing MelaFind®;
    
    The cost of commercialization activities, including product marketing
and building a domestic direct sales force;
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
    
    The emergence of competing or complementary technological developments;
    
    The costs of filing, prosecuting, defending and enforcing any patent
claims and other rights, including litigation costs and the results of
such litigation;
    
    The costs involved in defending any patent infringement actions
brought against us by third parties; and
    
    Our ability to establish and maintain any collaborative, licensing or
other arrangements, and the terms and timing of any such arrangements.
 Contractual Obligations (in thousands)
   Less than
    
    
    
    
    
    
    
    
    
    More thanTotal
    
    1 year
    
    1-3 years
    
    4-5 years
    
    5 yearsOperating leases
    
    $
    3,091
    
    
    $
    346
    
    
    $
    768
    
    
    $
    876
    
    
    $
    1,101
 Results of Operations (in thousands)
 ® ®
 Three Months Ended June 30, 2009 Compared to Three Months Ended June 30, 2008
 Research and Development Expense
  
    
    clinical studies costs  in the second quarter of 2009 the pivotal trial study sites were
shut down leaving only ongoing data acquisition sites. In the second quarter of 2008, all
sites of the pivotal clinical trial data acquisition phase were fully engaged. Clinical
studies costs decreased $998.
    
    quality and regulatory costs  were increased in the second quarter of 2009 as we
intensified activities resulting in our PMA submission, making extensive use of consultants to
assist in this process. In the second quarter of 2008, we were not near the completion of the
pivotal clinical trial process. Quality and regulatory costs increased $310 period to period.
    
    development activities  in the second quarter of 2009, we experienced a significant
decrease in design and process development costs for MelaFind® as the product had
become defined and finalized through the more extensive development efforts of 2008.
Development costs decreased $622.
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General and Administrative Expense
 ® ®
  Six Months Ended June 30, 2009 Compared to Six Months Ended June 30, 2008
 Research and Development Expense
  
    
    clinical studies costs  in the first six months of 2009 we closed down the pivotal
clinical trial study sites which, in the same period in 2008 were fully engaged. Clinical
studies costs decreased $1,615 from the prior period.
    
    quality and regulatory  the six month cost level was increased in 2009 as we intensified
activities resulting in PMA submission, making extensive use of consultants to assist in this
process. In the first six months of 2008, we were not near the completion of the pivotal
clinical trial process. Quality and regulatory costs increased $653 over the prior period.
    
    development activities  in the first six months of 2009, we experienced a significant
decrease in design costs and process development for MelaFind® as the product had
become defined and finalized through the more extensive development efforts of 2008.
Development costs decreased $856 from the prior period.
 General and Administrative Expense
 ® ®
  
    
    pre-marketing activities accelerated throughout the first six months of 2009 following
announcement of positive top-line results from the pivotal clinical trial through submission
of the MelaFind® PMA. There were limited pre-marketing efforts during the six
month period ended June 30, 2008, while the data acquisition phase of the pivotal clinical
trial continued. Pre-marketing expenses increased $78 over the prior period.
    
    increased investor relations costs primarily associated with disclosure requirements and
other activities involving investor notification, such as the release of top-line results from
our pivotal clinical trial and the submission of our PMA. Investor relations expenses
increased $51 over the prior period.
    
    other administrative costs were higher in the six months of 2009 primarily due to the
increased level of overall administrative activity as the Company moved towards PMA
submission. Other administrative costs increased $55 from the prior period.
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Critical Accounting Policies and Significant Judgments and Estimates
   Revenue Recognition
  Stock-Based Compensation
 Share-Based
Payment
  Accounting for Equity
Instruments That Are Issued to Other Than Employees for Acquiring, or in Conjunction with Selling,
Goods or Services .
 Accrued Expenses
  
    
    professional service fees;
    
    contract clinical service fees;
    
    fees paid to contract manufacturers in conjunction with the production
of clinical components or materials; and
    
    fees paid to third party data collection organizations and
investigators in conjunction with the clinical trials.
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Off-Balance Sheet Arrangements
  Recently Adopted Accounting Pronouncements
 Subsequent Events
 Accounting for Assets
Acquired and Liabilities Assumed in a Business Combination That Arise from Contingencies
   21




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Recent Accounting Pronouncements
 FASB Accounting Standards
Codification TM  and the Hierarchy of Generally Accepted Accounting Principles. FASB Accounting Standards Codification TM
 
 ITEM 3.
 Quantitative and Qualitative Disclosures about Market Risk
  
 ITEM 4.
 Controls and Procedures
 Evaluation of disclosure controls and procedures
  22




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Change in internal control over financial reporting
  Limitations on the effectiveness of controls
  
 PART II. OTHER INFORMATION
 
 Item 1. Legal Proceedings
  
 Item 1A. Risk Factors
 Our business and operations entail a variety of serious risks and uncertainties, including those
described in Item 1A of our Form 10-K for the year ended December 31, 2008. In addition, the
following risk factors have materially changed during the six months ended June 30, 2009:
 We have incurred losses for a number of years, and anticipate that we will incur continued losses
for the foreseeable future.
 ® ® ®
 We may be unable to complete the development and commence commercialization of MelaFind ® or other products without additional funding, and we will not be able to achieve significant
commercialization without additional funding.
 ®
 23




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
    
    the schedule, costs, and results of our clinical trials;
    
    the success of our research and development efforts;
    
    the costs and timing of regulatory approval;
    
    reimbursement amounts for the use of MelaFind® that we are
able to obtain from Medicare and third-party payers, or the amount of
direct payments we are able to obtain from patients and/or physicians
utilizing MelaFind®;
    
    the cost of commercialization activities, including product marketing
and building a domestic direct sales force;
    
    the emergence of competing or complementary technological developments;
    
    the costs of filing, prosecuting, defending and enforcing any patent
claims and other rights, including litigation costs and the results of
such litigation;
    
    the costs involved in defending any patent infringement actions
brought against us by third parties; and
    
    our ability to establish and maintain any collaborative, licensing or
other arrangements, and the terms and timing of any such arrangements.
  Our stock price is likely to be volatile, meaning purchasers of our common stock could incur
substantial losses.
  
    
    results of our research and development efforts and our clinical trials;
    
    the timing of regulatory approval for our products;
    
    failure of any of our products, if approved, to achieve commercial success;
    
    the announcement of new products or product enhancements by us or our competitors;
 24




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
    
    regulatory developments in the US and foreign countries;
    
    ability to manufacture our products to commercial standards;
    
    developments concerning our clinical collaborators, suppliers or marketing partners;
    
    changes in financial estimates or recommendations by securities analysts;
    
    public concern over our products;
    
    developments or disputes concerning patents or other intellectual property rights;
    
    product liability claims and litigation against us or our competitors;
    
    the departure of key personnel;
    
    the strength of our balance sheet;
    
    variations in our financial results or those of companies that are perceived to be similar to us;
    
    changes in the structure of and third-party reimbursement in the US and other countries;
    
    changes in accounting principles or practices;
    
    general economic, industry and market conditions; and
    
    future sales of our common stock.
  Results could be impacted by the effects of, and changes in, world-wide economic and capital market
conditions
  
 Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
  25




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Item 3. Defaults Upon Senior Securities.
  
 Item 4. Submission of Matters to a Vote of Security Holders.
    26




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Proposal 1
    
    Shares For
    
    Shares WithheldElection of DirectorsJoseph V. Gulfo, MD
    
    
    13,506,712
    
    
    
    65,642Breaux Castleman
    
    
    12,621,292
    
    
    
    951,062Sidney Braginsky
    
    
    13,491,577
    
    
    
    80,777Gorge C. Chryssis
    
    
    13,503,255
    
    
    
    69,099Martin D. Cleary
    
    
    13,495,254
    
    
    
    77,100Dan W. Lufkin
    
    
    13,500,005
    
    
    
    72,349Gerald Wagner, Ph.D.
    
    
    12,876,014
    
    
    
    696,340Proposal 2
    
    Shares For
    
    Shares Against
    
    Shares AbstainingRatification of Eisner LLP
    
    
    13,499,262
    
    
    
    50,379
    
    
    
    22,715Proposal 3Authorization of
amendment to Stock
Incentive Plan
    
    
    6,330,093
    
    
    
    709,335
    
    
    
    37,975
 
 Item 5. Other Information
   27




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Item 6. Exhibits
 ExhibitNumber
    
    Exhibit Title31.1#
    
    Certification of Chief Executive Officer Pursuant to Rule
13a-14(a) or Rule 15d-14(a) under the Securities Exchange Act of
1934, as amended.31.2#
    
    Certification of Chief Financial Officer Pursuant to Rule
13a-14(a) or Rule 15d-14(a) under the Securities Exchange Act of
1934, as amended.32.1#
    
    Certification of Chief Executive Officer and Chief Financial
Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.#
    
    Filed herewith
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SIGNATURES
  ELECTRO-OPTICAL SCIENCES, INC.By:
    /s/ Richard I. SteinhartRichard I. SteinhartVice President and Chief Financial Officer
(Principal Accounting and Financial Officer)  29




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EXHIBIT INDEX
 Exhibit No.
    
    Description31.1
    
    Certification by the Chief Executive Officer pursuant to Rule
13a-14(a) or Rule 15d-14(a) under the Securities Exchange Act
of 1934, as amended.31.2
    
    Certification by the Chief Financial Officer pursuant to Rule
13a-14(a) or Rule 15d-14(a) under the Securities Exchange Act
of 1934, as amended.32.1
    
    Certification Pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
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