AMENDMENT NO. 1 TO AMENDED AND RESTATED CONSULTING AGREEMENT
Exhibit 10.1
AMENDMENT NO. 1 TO AMENDED AND RESTATED CONSULTING
AGREEMENT
AGREEMENT
This Amendment No. 1 to Amended and Restated Consulting Agreement (the “Amendment”) is made as
of January 30, 2007 (the “Effective Date”) by and among Electro-Optical Sciences, Inc., a Delaware
corporation (the “Company”), Xxxxxx Xxxxxx (“Xxxxxx”) and Xxxxxx Xxxxxx Consulting LLC (the
“Consultant”).
RECITALS
WHEREAS, the Company and the Consultant are parties to that certain Amended and Restated
Consulting Agreement dated as of April 1, 2006 (the “Existing Consulting Agreement”);
WHEREAS, the Company is commencing the pivotal clinical trial for its MelaFind product on the
Effective Date (the “Pivotal Trial”);
WHEREAS, Xxxxxx has been serving as the Acting Chief Operating Officer of the Company; and
WHEREAS, now that the Pivotal Trial is commencing the Company and the Consultant would like to
amend the Existing Consulting Agreement and Xxxxxx would like to resign as the Acting Chief
Operating Officer of the Company.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Amendment of the Existing Consulting Agreement. The Existing Consulting Agreement
is hereby amended by deleting Sections 1-3 thereof in their entirety and replacing them with the
following:
“1. Transition Services. (a) The Consultant will assist the Company in
transitioning the responsibilities of Xxxxxx Xxxxxx, as the Acting Chief Operating Officer
of the Company, and the responsibilities of the Consultant pursuant to this Agreement as in
effect prior to January 30, 2007 to the employees of the Company or other persons
designated by the Chief Executive Officer of the Company (the “Transition Services”).
(b) Upon request by the Chief Executive Officer of the Company, the Consultant will
provide additional consulting services to the Company on a per diem basis on days that are
mutually agreed by the Consultant and the Company (the “Additional Services”).
2. Consideration; Expenses. (a) As consideration for the Transition
Services, the Company will pay the Consultant: (i) a monthly fee of $2,500
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payable on or about the first business day of each month during the Term (as defined
below) and (ii) in the event that the Transition Services requested by the Chief Executive
Officer of the Company exceed one day per month in any month during the Term, an additional
fee for such Transition Services equal to $2,500 per day.
(b) As consideration for the Additional Services, the Company will pay the Consultant
$2,500 per day of Additional Services rendered, such payment to be made within thirty (30)
business days after such Additional Services are rendered.
(c) 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 the Consultant or the
Company, at any time by providing fifteen (15) days’ prior written notice to the other
party (during which fifteen (15) day period the Consultant shall continue to perform its
duties hereunder) or (b) immediately upon the mutual agreement of the Company and the
Consultant.”
2. Acknowledgment Regarding Payments under the Existing Consulting Agreement. The
Consultant hereby acknowledges and agrees that all amounts owed to the Consultant pursuant to the
Existing Consulting Agreement have been paid in full.
3. Resignation as Acting Chief Operating Officer. Xxxxxx hereby resigns as Acting
Chief Operating Officer of the Company, effective as of the Effective Date.
4. Vesting of Stock Option. The Company and Xxxxxx hereby acknowledge that the
non-qualified stock option granted to Xxxxxx to purchase up to 50,000 shares of common stock, par
value $.001 per share, of the Company pursuant to a Non-Qualified Stock Option Agreement between
the Company and Xxxxxx dated as of March 24, 2006 vested in full effective as of the Effective Date
as a result of the commencement of the Pivotal Trial.
5. Ratification and Confirmation. Except as expressly amended hereby, the terms and
provisions of the Existing Consulting Agreement shall remain in full force and effect and are
hereby ratified and confirmed.
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IN WITNESS WHEREOF, this Amendment 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 Effective Date.
Electro-Optical Sciences, Inc. | Xxxxxx Xxxxxx Consulting LLC | |||||||||
By:
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/s/ Xxxxxx X. Xxxxx, M.D. M.B.A. | By: | /s/ Xxxxxx Xxxxxx | |||||||
Xxxxxx X. Xxxxx, M.D. M.B.A. | Xxxxxx Xxxxxx | |||||||||
President | ||||||||||
/s/ Xxxxxx Xxxxxx | ||||||||||
Xxxxxx Xxxxxx | ||||||||||
(solely with respect to Sections 3 and 4 hereof) |
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