Consulting Agreement between Electro-Optical Sciences, Inc. and Robert Friedman, M.D.

Summary

Electro-Optical Sciences, Inc. and Dr. Robert Friedman have entered into a consulting agreement effective June 1, 2005. Dr. Friedman, retiring from the Board of Directors, will serve as a medical advisor, liaison to the Scientific and Medical Advisory Committee, and assist with clinical testing of the MelaFind device. He will be compensated $5,000 per day for up to thirty days per year, with reimbursement for reasonable expenses. The agreement lasts one year and renews automatically unless either party gives 30 days' notice. Dr. Friedman must keep company information confidential and assign any inventions made during his consulting to the company.

EX-10.13 6 y09078a1exv10w13.txt EX-10.13: CONSULTING AGREEMENT 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 Robert Friedman, 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 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. 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 One Bridge Street, Suite 15 Irvington, NY 10553 In the case of the Consultant: Name: Robert Friedman, M. D. Address: 56 Old Aspetong Road Katonah, NY 10536 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: Robert Friedman By: /s/ William R. Bronner Signature: /s/ Robert Friedman Its: Vice President EXHIBIT A OTHER RELATIONSHIPS NONE