Table of Contents
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The
Securities Exchange Act of 1934
Pursuant to Section 13 OR 15(d) of The
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 30, 2007
Electro-Optical Sciences, Inc.
(Exact name of registrant as specified in its charter)
| Delaware (State or other jurisdiction of incorporation) |
000-51481 (Commission File Number) |
13-3986004 (IRS 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
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see General Instructions
A.2. below):
| o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
TABLE OF CONTENTS
Table of Contents
Item 1.01 — Entry into a Material Definitive Agreement
Dr. Gerald Wagner resigned as Acting Chief Operating Officer of the Registrant, effective as of
January 30, 2007. In connection with Dr. Wagner’s resignation, the Registrant entered into
Amendment No. 1 to Amended and Restated Consulting Agreement (as so amended, the “Agreement”),
dated as of January 30, 2007, with Dr. Wagner and Gerald Wagner Consulting LLC (the “Consultant”).
Pursuant to the Agreement, Dr. Wagner resigned as Acting Chief Operating Officer of the Registrant
and the Consultant agreed to provide transition services and additional consulting services to the
Registrant during the term of the Agreement, which commenced on January 30, 2007 and will end (i)
at the option of either the Consultant or the Registrant upon 15 days’ prior written notice or (ii)
at any time by mutual agreement of the Consultant and the Registrant.
A copy of the Agreement is filed herewith as Exhibit 10.1.
Item 5.02 — Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers
As discussed above in Item 1.01, Dr. Gerald Wagner resigned as Acting Chief Operating Officer of
the Registrant effective January 30, 2007. Dr. Wagner will continue to serve as a consultant to
the Registrant pursuant to the Agreement and as a member of the Registrant’s board of directors.
Item 8.01 — Other Events
On January 30, 2007, the Registrant issued a press release announcing the initiation of the pivotal
clinical trial for the Registrant’s MelaFind® product and Dr. Wagner’s resignation as
Acting Chief Operating Officer of the Registrant.
A copy of this press release is furnished as Exhibit 99.1 to this report. Exhibit 99.1 is
furnished to, but not filed with, the Securities and Exchange Commission. Registration statements
or other documents filed with the Securities and Exchange Commission shall not incorporate this
information by reference, except as otherwise expressly stated in such filing.
Item 9.01 — Financial Statements and Exhibits
(b) Exhibits.
| Exhibit | ||
| Number | Description | |
10.1
|
Amendment No. 1 to Amended and Restated Consulting Agreement dated as of January 30, 2007 by and among the Registrant, Gerald Wagner and Gerald Wagner Consulting LLC | |
99.1
|
Press Release of the Registrant dated January 30, 2007 |
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Electro-Optical Sciences, Inc. |
||||
| Date: January 30, 2007 | By: | /s/ Joseph V. Gulfo | ||
| President & Chief Executive Officer | ||||
| (Principal Executive Officer) | ||||
2
Table of Contents
EXHIBIT INDEX
| EXHIBIT NO. | DESCRIPTION | |
10.1
|
Amendment No. 1 to Amended and Restated Consulting Agreement dated as of January 30, 2007 by and among the Registrant, Gerald Wagner and Gerald Wagner Consulting LLC | |
99.1
|
Press Release of the Registrant dated January 30, 2007 |
3
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”), Gerald Wagner (“Wagner”) and Gerald Wagner 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, Wagner 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 Wagner 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 Gerald Wagner, 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
1
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. Wagner hereby resigns as Acting
Chief Operating Officer of the Company, effective as of the Effective Date.
4. Vesting of Stock Option. The Company and Wagner hereby acknowledge that the
non-qualified stock option granted to Wagner 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 Wagner 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.
2
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. | Gerald Wagner Consulting LLC | |||||||||
By:
|
/s/ Joseph V. Gulfo, M.D. M.B.A. | By: | /s/ Gerald Wagner | |||||||
| Joseph V. Gulfo, M.D. M.B.A. | Gerald Wagner | |||||||||
| President | ||||||||||
| /s/ Gerald Wagner | ||||||||||
| Gerald Wagner | ||||||||||
| (solely with respect to Sections 3 and 4 hereof) | ||||||||||
3
Exhibit
99.1
For further information contact:
David Carey
Lazar Partners Ltd.
212-867-1762
dcarey@lazarpartners.com
Lazar Partners Ltd.
212-867-1762
dcarey@lazarpartners.com
Electro Optical Sciences Announces Initiation of MelaFind®
Pivotal Clinical Trial
Pivotal Clinical Trial
IRVINGTON, New York — January 31, 2007 — Electro Optical Sciences, Inc. (“EOS”) [NASDAQ: MELA]
today announced the initiation of the pivotal clinical trial for MelaFind®, the
company’s non-invasive, point-of-care instrument to assist in the early diagnosis of melanoma.
“Initiation of the MelaFind pivotal clinical trial is a significant milestone for EOS, and we are
excited that the first patients have been enrolled in the study,” said Joseph V. Gulfo, MD, MBA,
president and chief executive officer. “We anticipate submitting the Premarket Approval
Application (PMA) to the FDA for review in the second half of 2007.”
EOS has a binding Protocol Agreement with the U.S. Food and Drug Administration (FDA). The
Protocol Agreement stipulates the endpoints that will be used as the basis for determining the
safety and effectiveness of MelaFind. The MelaFind pivotal study will include up to 1,200
pigmented skin lesions, and at least 93 eligible melanomas for analysis. In October 2006, EOS
received notification of Expedited Review designation from the FDA for the MelaFind PMA application
upon its submission.
Concomitant with the initiation of the pivotal clinical development program, Dr. Gerald D. Wagner,
a director of the company, is transitioning from his role as acting chief operating officer. Dr.
Wagner will continue to serve as a consultant and director of EOS.
“We appreciate Gerry’s tireless efforts and his commitment over the past 18 months serving as
acting chief operating officer and helping us to achieve this milestone. We look forward to his
continued contributions,” Dr. Gulfo said.
About Electro-Optical Sciences
EOS is a medical device company focused on designing and developing a non-invasive, point-of-care
instrument to assist in the early diagnosis of melanoma. MelaFind®, EOS’s flagship
product, features a hand-held imaging device that emits light of multiple wavelengths to capture
images of suspicious pigmented skin lesions and extract data. Using sophisticated algorithms, the
data are then analyzed against a proprietary database of melanomas and benign lesions in order to
provide information to the physician and produce a recommendation of whether the lesion should be
biopsied.
Melanoma is the deadliest of skin cancers, responsible for approximately 80% of all skin
cancer deaths. Unless melanoma is detected early and excised with proper margins, the patient
survival rate is poor, as there is currently no cure for advanced stage melanoma.
For more information on EOS, visit www.eosciences.com.
Safe Harbor
This press release includes “forward-looking statements” within the meaning of the Securities
Litigation Reform Act of 1995. These statements include but are not limited to our plans,
objectives, expectations and intentions and other statements that contain words such as “expects,”
“contemplates,” “anticipates,” “plans,” “intends,” “believes” and variations of such words or
similar expressions that predict or indicate future events or trends, or that do not relate to
historical matters. These statements are based on our current beliefs or expectations and are
inherently subject to significant uncertainties and changes in circumstances, many of which are
beyond our control. There can be no assurance that our beliefs or expectations will be achieved.
Actual results may differ materially from our beliefs or expectations due to economic, business,
competitive, market and regulatory factors.
# # #