EX-10.1






Exhibit 10.1




SUBSCRIPTION AGREEMENT




Electro-Optical Sciences, Inc.

3 West Main Street, Suite 201

Irvington, New York 10533




Ladies and Gentlemen:



The undersigned (the “Investor”) hereby confirms its agreement with you as follows:





	 	1.	 	This Subscription Agreement, including the Terms and Conditions For Purchase
of Shares attached hereto as Annex I (this “Agreement”), is made as of the
date set forth below between Electro-Optical Sciences, Inc., a Delaware corporation
(the “Company”), and the Investor.
	 
	 	2.	 	The Company has authorized the sale and issuance to certain investors of up
to an aggregate of 2,088,451 shares (the “Shares”) of its common stock, par value
$0.001 per share (the “Common Stock”), subject to adjustment by the Company’s Board of
Directors, or a committee thereof, for a purchase price of $5.68 per share (the
“Purchase Price”).
	 
	 	3.	 	The offering and sale of the Shares (the “Offering”) are being made pursuant
to (a) an effective Registration Statement on Form S-3 (including the Prospectus
contained therein (the “Base Prospectus”), File No. 333-151935, the “Registration
Statement”) filed by the Company with the Securities and Exchange Commission (the
“Commission”), (b) if applicable, certain “free writing prospectuses” (as that term is
defined in Rule 405 under the Securities Act of 1933, as amended (the “Act”)), that
have or will be filed with the Commission and delivered to the Investor on or prior to
the date hereof and (c) a Prospectus Supplement (the “Prospectus Supplement” and
together with the Base Prospectus, the “Prospectus”) containing certain supplemental
information regarding the Shares and terms of the Offering that will be filed with the
Commission and delivered to the Investor (or made available to the Investor by the
filing by the Company of an electronic version thereof with the Commission).
	 
	 	4.	 	The Company and the Investor agree that the Investor will purchase from the
Company and the Company will issue and sell to the Investor the Shares of Common Stock
set forth below for the aggregate purchase price set forth below. The Shares shall be
purchased pursuant to the Terms and Conditions for Purchase of Shares attached hereto
as Annex I and incorporated herein by this reference as if fully set forth
herein. The Investor acknowledges that the Offering is not being underwritten by
Needham & Company, LLC, the placement agent named in the Prospectus Supplement (the
“Placement Agent”), and that there is no minimum offering amount.




 









 






	 	5.	 	The manner of settlement of the Shares purchased by the Investor shall be
delivery by electronic book-entry at The Depository Trust Company (“DTC”), registered
in the Investor’s name and address as set forth below, and released by American Stock
Transfer & Trust Company, the Company’s transfer agent (the “Transfer Agent”), to the
Investor at the Closing. NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF
THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:






	 	(I)	 	DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE
CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL
AT CUSTODIAN (“DWAC”) INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH
ACCOUNT OR ACCOUNTS WITH THE SHARES, AND
	 
	 	(II)	 	REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE
PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE INVESTOR TO THE
FOLLOWING ACCOUNT:




HSBC Bank USA

Attention: Berta Polonia

452 5th Avenue, 26th Floor

New York, New York 10018

ABA # 021001088

Account Name: Electro Optical Sciences Inc

Account Number: 134773080



 




	 	 	 	IT IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER IN A
TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC IN A TIMELY MANNER. IF THE
INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE SHARES OR DOES NOT MAKE
PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES MAY NOT BE DELIVERED
AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING
ALTOGETHER.
	 
	 	6.	 	The Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years with the
Company or persons known to it to be affiliates of the Company, (b) it is not a FINRA
member or an Associated Person (as such term is defined under the FINRA Membership and
Registration Rules Section 1011) as of the Closing, and (c) neither the Investor nor
any group of Investors (as identified




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	 	 	 	in a public filing made with the Commission) of which the Investor is a part in
connection with the Offering of the Shares, acquired, or obtained the right to acquire,
20% or more of the Common Stock (or securities convertible into or exercisable for
Common Stock) or the voting power of the Company on a post-transaction basis.
Exceptions:
	 





 


(If no exceptions, write “none.” If left blank, response will be deemed to be “none.”)





	 	7.	 	The Investor represents that it has received (or otherwise had made available
to it by the filing by the Company of an electronic version thereof with the
Commission) the Base Prospectus, dated July 7, 2008, which is a part of the Company’s
Registration Statement, the documents incorporated by reference therein and any free
writing prospectus (collectively, the “Disclosure Package”), prior to or in connection
with the receipt of this Agreement. The Investor acknowledges that, prior to the
delivery of this Agreement to the Company, the Investor will receive certain
additional information regarding the Offering, including pricing information (the
“Offering Information”). Such information may be provided to the Investor by any means
permitted under the Act, including the Prospectus Supplement, a free writing
prospectus and oral communications.
	 
	 	8.	 	No offer by the Investor to buy the Shares will be accepted and no part of
the Purchase Price will be delivered to the Company until the Investor has received
the Offering Information and the Company has accepted such offer by countersigning a
copy of this Agreement, and any such offer may be withdrawn or revoked, without
obligation or commitment of any kind, at any time prior to the Company (or the
Placement Agent on behalf of the Company) sending (orally, in writing or by electronic
mail) notice of its acceptance of such offer. An indication of interest will involve
no obligation or commitment of any kind until the Investor has been delivered the
Offering Information and this Agreement is accepted and countersigned by or on behalf
of the Company.










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Number of Shares:
                    
                    



Purchase Price Per Share: $
                           



Aggregate Purchase Price: $
                          



Please confirm that the foregoing correctly sets forth the agreement between us by signing in the
space provided below for that purpose.
 




	 	 	 	 	 
	 	 	Dated as of:                      , 2008
	 
	 	 	 	 
	 	 	 
	 

	 	INVESTOR	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Print Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 

	 	Address:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 






Agreed and Accepted




this                     day of                      , 2008
 




	 	 	 	 	 
	ELECTRO-OPTICAL SCIENCES, INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	Title:
	 	 	 	 






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ANNEX I 




TERMS AND CONDITIONS FOR PURCHASE OF SHARES




     1. Authorization and Sale of the Shares. Subject to the terms and conditions of this
Agreement, the Company has authorized the sale of the Shares.



     2. Agreement to Sell and Purchase the Shares; Placement Agents.



          2.1 At the Closing (as defined in Section 3.1), the Company will sell to the Investor,
and the Investor will purchase from the Company, upon the terms and conditions set forth herein,
the number of Shares set forth on the last page of the Agreement to which these Terms and
Conditions for Purchase of Shares are attached as Annex I (the “Signature Page”) for the
aggregate purchase price therefor set forth on the Signature Page.




          2.2 The Company proposes to enter into substantially this same form of Subscription Agreement
with certain other investors (the “Other Investors”) and expects to complete sales of Shares to
them. The Investor and the Other Investors are hereinafter sometimes collectively referred to as
the “Investors,” and this Agreement and the Subscription Agreements executed by the Other Investors
are hereinafter sometimes collectively referred to as the “Agreements.”




          2.3 Investor acknowledges that the Company has agreed to pay the Placement Agent a fee (the
“Placement Fee”) in respect of the sale of Shares to the Investor.




          2.4 The Company has entered into a Placement Agency Agreement, dated July 31, 2008 (the
“Placement Agreement”), with the Placement Agent that contains certain representations, warranties,
covenants and agreements of the Company. The Company confirms that neither it nor any officer,
director or duly authorized representative has provided the Investor with material, non-public
information.




     3. Closings and Delivery of the Shares and Funds.



          3.1 Closing. The completion of the purchase and sale of the Shares (the “Closing”)
shall occur at a place and time (the “Closing Date”) to be specified by the Company and the
Placement Agent and of which the Investors will be notified in advance by the Placement Agent, in
accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”). At the Closing, (a) the Company shall cause the Transfer Agent to deliver to the
Investor the number of Shares set forth on the Signature Page registered in the name of the
Investor or, if so indicated on the Investor Questionnaire attached hereto as Exhibit A, in
the name of a nominee designated by the Investor and (b) the aggregate purchase price for the
Shares being purchased by the Investor will be delivered by or on behalf of the Investor to the
Company.




          3.2 Conditions to the Company’s Obligations.




               (a) The Company’s obligation to issue and sell the Shares to the Investor shall be subject to:
(i) the receipt by the Company of the purchase price for the Shares



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being purchased hereunder as set forth on the Signature Page and (ii) the accuracy of the
representations and warranties made by the Investor and the fulfillment of those undertakings of
the Investor to be fulfilled prior to the Closing Date.



               (b) Conditions to the Investor’s Obligations. The Investor’s obligation to purchase
the Shares will be subject to the accuracy of the representations and warranties made by the
Company hereunder and the fulfillment of those undertakings of the Company hereunder to be
fulfilled prior to the Closing Date, and to the condition that the Placement Agent shall not have:
(i) terminated the Placement Agreement pursuant to the terms thereof or (ii) determined that the
conditions to the closing in the Placement Agreement have not been satisfied. The Investor’s
obligations are expressly not conditioned on the purchase by any or all of the Other Investors of
the Shares that they have agreed to purchase from the Company.



          3.3 Delivery of Funds. At the Closing, the Investor shall remit by wire transfer the amount
of funds equal to the aggregate purchase price for the Shares being purchased by the Investor to
the following account designated by the Company:



HSBC Bank USA

Attention: Berta Polonia

452 5th Avenue, 26th Floor

New York, New York 10018

ABA # 021001088

Account Name: Electro Optical Sciences Inc

Account Number: 134773080




          3.4 Delivery of Shares. No later than one (1) business day after the execution of this
Agreement by the Investor and the Company, the Investor shall direct the broker-dealer at which
the account or accounts to be credited with the Shares being purchased by such Investor are
maintained, which broker/dealer shall be a DTC participant, to set up a DWAC instructing American
Stock Transfer & Trust Company, the Company’s transfer agent, to credit such account or accounts
with the Shares by means of an electronic book-entry delivery. Such DWAC shall indicate the
settlement date for the deposit of the Shares, which date shall be provided to the Investor by the
Placement Agent. Simultaneously with the delivery to the Company of the funds pursuant to
Section 3.3 above, the Company shall direct its transfer agent to credit the Investor’s
account or accounts with the Shares pursuant to the information contained in the DWAC.




     4. Representations, Warranties and Covenants of the Investor.



     The Investor acknowledges, represents and warrants to, and agrees with, the Company and the
Placement Agent that:



          4.1 The Investor (a) is an “accredited investor” (as such term is defined in Section 501(a) of
the Act), (b) is knowledgeable, sophisticated and experienced in making, and is qualified to make
decisions with respect to, investments in shares presenting an investment decision like that
involved in the purchase of the Shares, including investments in securities issued by the Company
and investments in



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comparable companies, (c) is capable of bearing a loss of the entire amount of such Investor’s
purchase of the Shares, based on the Investor’s net worth, annual income and liquid assets, (d) is
suitable to make an investment in the amount of Shares such Investor plans to purchase, based on
such Investor’s net worth, annual income and liquid assets, and based on such Investor’s past
experience in investing in comparable companies, (e) has answered all questions on the Signature
Page and the Investor Questionnaire and the answers thereto are true and correct as of the date
hereof and will be true and correct as of the Closing Date and (f) in connection with its decision
to purchase the number of Shares set forth on the Signature Page, has received and is relying only
upon the Disclosure Package, the documents incorporated by reference therein and the Offering
Information.




          4.2(a) No action has been or will be taken in any jurisdiction outside the United States by
the Company or the Placement Agent that would permit an offering of the Shares, or possession or
distribution of offering materials in connection with the issue of the Shares in any jurisdiction
outside the United States where action for that purpose is required, and (b) if the Investor is
outside the United States, it will comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or
distributes any offering material, in all cases at its own expense.




          4.3(a) The Investor has full right, power, authority and capacity to enter into this Agreement
and to consummate the transactions contemplated hereby and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement, and (b) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting
parties’ rights generally and except as enforceability may be subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law).







          4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other
materials presented to the Investor in connection with the purchase and sale of the Shares
constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and
investment advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of Shares.




          4.5 Since the date on which the Placement Agent first contacted such Investor about the
Offering, the Investor has not engaged in any transactions in the securities of the Company
(including, without limitation, any Short Sales involving the Company’s securities), and has not
violated its obligations of confidentiality. Each Investor covenants that it will not engage in any
transactions in the securities of the Company (including Short Sales) prior to the time that the
transactions contemplated by this Agreement are publicly disclosed. Each Investor agrees that it
will not use any of the Shares acquired pursuant to this Agreement to cover any short position in
the Common Stock if doing so would be in violation of applicable securities laws. For purposes
hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200
promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all
types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short
sales,



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swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and
similar arrangements (including on a total return basis), and sales and other transactions through
non-US broker dealers or foreign regulated brokers.




          4.6 The Investor represents that (a) it has had no position, office or other material
relationship within the past three years with the Company or persons known to it to be affiliates
of the Company, (b) neither it, nor any group of which it is a member or to which it is related,
beneficially owns (including the right to acquire or vote) any securities of the Company, and (c)
it is not a, and it has no direct or indirect affiliation or association with any, FINRA member as
of the date hereof.




     5. Survival of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding any investigation made by any party to this Agreement or by the Placement Agent,
all covenants, agreements, representations and warranties made by the Company and the Investor
herein will survive the execution of this Agreement, the delivery to the Investor of the Shares
being purchased and the payment therefor. The Placement Agent shall be a third party beneficiary
with respect to the representations, warranties and agreements of the Investor in Section 4 hereof.



     6. Notices. All notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by International Federal Express or
facsimile, and will be deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally recognized overnight
carrier, one business day after so mailed, (iii) if delivered by International Federal Express, two
business days after so mailed and (iv) if delivered by facsimile, upon electric confirmation of
receipt and will be delivered and addressed as follows:



 



          If to the Company, to:



Electro-Optical Sciences, Inc.

3 West Main Street, Suite 201

Irvington, New York 10533

Attention: Chief Financial Officer





If to the Investor, to its address on the Signature Page hereto, or at such other
address or addresses as may have been furnished to the Company in writing.



     7. Changes. This Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.



     8. Headings. The headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this Agreement.



     9. Severability. The provisions of this Agreement are severable and, in the event that any
court or officials of any regulatory agency of competent jurisdiction shall



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determine that any one or more of the provisions or part of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provision or part of a
provision of this Agreement and this Agreement shall be reformed and construed as if such invalid
or illegal or unenforceable provision, or part of such provision, had never been contained herein,
so that such provisions would be valid, legal and enforceable to the maximum extent possible, so
long as such construction does not materially adversely affect the economic rights of either party
hereto.



     10. Governing Law; Jurisdiction; Venue.



               (a) This Agreement shall be governed by and construed under the laws of the State of New York,
without regard to conflicts of laws principles, and all rights and remedies hereunder or with
respect hereto shall be governed by such laws.



               (b) Any legal action or proceeding with respect to this Agreement or any other document
delivered in connection herewith shall be brought exclusively in any state or federal court of
competent jurisdiction in the state, county and city of New York. By execution and delivery of
this Agreement, each party hereto irrevocably consents to and accepts, for itself and in respect of
its property, generally and unconditionally the exclusive jurisdiction of such courts. Each party
hereto further irrevocably waives any objection, including any objection to the laying of venue or
based on the grounds of forum non conveniens, which it may now or hereafter have to
bringing of any action or proceeding in such jurisdiction in respect of this Agreement or any other
document delivered in connection herewith.



               (c) Each party hereto hereby irrevocably consents to the service of process out of any of the
courts referred to in subsection (b) of this Section in any suit, action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to it at its address
set forth in this Agreement. Each party hereto hereby irrevocably waives any objection to such
service of process and further irrevocably waives and agrees not to plead or claim in any suit,
action or proceeding commenced hereunder or under any other document delivered in connection
herewith that service of process was in any way invalid or ineffective. Nothing herein shall
affect the right of a party to serve process on the other party in any other manner permitted by
applicable law.



     11. Counterparts. This Agreement may be executed in two or more counterparts, each of which
will constitute an original, but all of which, when taken together, will constitute but one
instrument, and will become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties. The Company and the Investor acknowledge and agree that
the Company shall deliver its counterpart to the Investor along with the Prospectus Supplement (or
the filing by the Company of an electronic version thereof with the Commission).



     12. Confirmation of Sale. The Investor acknowledges and agrees that such Investor’s receipt of
the Company’s counterpart to this Agreement, together with the Prospectus Supplement (or the filing
by the Company of an electronic version thereof with the Commission), shall constitute written
confirmation of the Company’s sale of Shares to such Investor.



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     13. Press Release. The Company and the Investor agree that the Company shall issue a press
release announcing the Offering prior to the opening of the financial markets in New York City on
the business day immediately after the date hereof. The Investor shall not issue any other press
release or make any other public announcement relating to this Agreement unless (a) the content
thereof is mutually agreed to by the Company and the Investor or (b) the Investor is advised by its
counsel that such press release or public announcement is required by law.



     14. Termination. In the event that the Placement Agreement is terminated by the Placement
Agent pursuant to the terms thereof, this Agreement shall terminate without any further action on
the part of the parties hereto.




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Exhibit A 




ELECTRO-OPTICAL SCIENCES, INC.




INVESTOR QUESTIONNAIRE




     Pursuant to Section 3 of Annex I to the Agreement, please provide us with the
following information:



 



	 	 	 	 	 
	1.

	 	The exact name that your Shares
are to be registered in. You may
use a nominee name if
appropriate:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	2.

	 	The relationship between the
Investor and the registered
holder listed in response to item
1 above:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	3.

	 	The mailing address of the
registered holder listed in
response to item 1 above:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	4.

	 	The Social Security Number or Tax
Identification Number of the
registered holder listed in the
response to item 1 above:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	5.

	 	Name of DTC Participant
(broker-dealer at which the
account or accounts to be
credited with the Shares are
maintained):	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	6.

	 	DTC Participant Number:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	7.

	 	Name of Account at DTC
Participant being credited with
the Shares:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	8.

	 	Account Number at DTC Participant
being credited with the Shares: