EXHIBIT 10.13
CONSULTING AGREEMENT
This Agreement is made as of June 1, 2005 (the "Effective Date"), between
Electro-Optical Sciences, Inc, a Delaware corporation (the "COMPANY") and Xxxxxx
Xxxxxxxx, M.D. (the "CONSULTANT").
Consultant is retiring as a voting member of the Board of Directors. Consultant
is willing to continue to provide assistance to the Company. The Company wishes
to retain the Consultant in a consulting capacity. Accordingly, the parties
agree as follows:
1. Services. The Field of Interest for consulting includes three areas: (1)
as Medical Advisor to the Board, (2) as Liaison to the Scientific and Medical
Advisory Committee, and (3) in connection with the clinical testing of
MelaFind(R), a melanoma diagnostic device. 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,
subject to his need to satisfy other professional commitments, for up to thirty
days.
2. Consideration. In consideration for the services provided by Consultant
under the terms of this Agreement, Consultant shall be compensated at a rate of
$5,000 per day of services rendered to the Company, or a proportionately smaller
amount for less than 8 hours of services. 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 will begin on the Effective Date of this
Agreement and will end on the one-year anniversary of this Agreement or upon
earlier termination (the "Term"). The Term will be renewed for successive
one-year periods, unless either party provides written notice at least thirty
(30) days prior to the end of the Term that such party does not wish to renew
this Agreement.
4. 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 in 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 any employee or consultant of the Company. Consultant shall
disclose on Exhibit A attached hereto all other consulting agreements in the
Field of Interest to which Consultant is currently a party.
5. 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.
6. Inventions Discovered by the Consultant While Performing Services
Hereunder.
6.1 The Consultant will promptly and fully disclose to the Chief
Executive Officer of the Company any invention, improvement, discovery, process,
formula, technique, method, trade xxxx, 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.
6.2 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).
7. Confidentiality.
7.1 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.
7.2 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.
7.3 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.
7.4 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.
7.5 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.
7.6 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. Alternatively,
Consultant may destroy all Confidential Information and certify to the Company
that he has done so. Notwithstanding such return or destruction, 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.
8. 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.
9. 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 (as modified to the extent required by Section 4) 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.
10. 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
Xxx Xxxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxx, XX 00000
In the case of the Consultant:
Name: Xxxxxx Xxxxxxxx, M. D.
Address: 00 Xxx Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
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.
11. 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.
12. 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.
13. Indemnification. The Company hereby indemnifies Contractor to the fullest
extent possible against any third-party claim of any type, excluding only claims
of intentional misconduct, arising with respect to any services performed
hereunder.
14. 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, represents the entire understanding of the
parties, supersedes all prior agreements between the parties, and 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: Consultant: Xxxxxx Xxxxxxxx
By: /s/ Xxxxxxx X. Xxxxxxx Signature: /s/ Xxxxxx Xxxxxxxx
Its: Vice President
EXHIBIT A
OTHER RELATIONSHIPS
NONE
