EXHIBIT 10.17**AMENDED AND RESTATED CONSULTING AGREEMENT**This Amended and Restated Consulting Agreement is made as of April 1, 2006 (the “Effective Date”),between Electro-Optical Sciences, Inc, a Delaware corporation (the “**Company**”) and Gerald WagnerConsulting LLC (the “**Consultan**t”).     WHEREAS, the Consultant and the Company are parties to a certain Consulting Agreement dated asof June 1, 2005 (the “Prior Agreement”); and     WHEREAS, the parties to the Prior Agreement now wish to revise their relationship so as toprovide for the provision of services of an anticipated longer duration period.     NOW THEREFORE, the parties agree as follows:1. Services. The field of interest for consulting hereunder is the continued direction of theCompany’s MelaFind product development effort and the implementation of the manufacturing processonce production of clinical trial prototypes becomes feasible.The Consultant will make himself available in person at the Company’s offices or other locations asagreed upon during the term of this Agreement, as reasonably requested by the Company.2. Consideration. In consideration for the services provided by Consultant under the terms of thisAgreement, Consultant shall be compensated as set forth below.     2.1 The Company will pay the Consultant the annual amount of one hundred eighty thousanddollars ($180,000.00), payable monthly over the term of this Agreement.     2.2 The Consultant acknowledges that, in connection with his continued engagement by theCompany on March 24, 2006 he was granted non-qualified stock options to purchase 50,000 shares ofthe Company’s common stock at fair market value.     2.3 Reasonable expenses of the Consultant incurred at the request of the Company (includingtravel expenses incurred in connection with Company-related business) will be reimbursed promptlyby the Company, subject to customary verification, in accordance with the Company’s standardexpense reimbursement and travel policy.     3. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date of thisAgreement and will end (a) at the option of Consultant or the Company, at any time by providingthirty (30) days’ prior written notice to the other party (during which thirty (30) day periodConsultant shall continue to perform its duties hereunder) or (b) immediately upon the mutualagreement of the Company and Consultant.
 

 
4. Certain Other Contracts.     4.1 The Consultant will not disclose to the Company any information that the Consultant isobligated to keep secret pursuant to an existing confidentiality agreement with a third party, andnothing in this Agreement will impose any obligation on the Consultant to the contrary.     4.2 The consulting work performed hereunder will not be conducted on time that is required tobe devoted to any other third party. The Consultant shall not use the funding, resources andfacilities of any other third party to perform consulting work hereunder and shall not perform theconsulting work hereunder in any manner that would give any third party rights to the product ofsuch work.     4.3 The Consultant has disclosed and, during the Term, will disclose to the Chief ExecutiveOfficer of the Company any conflicts between this Agreement and any other agreements binding theConsultant.5. Exclusive Services during the Term. The Consultant agrees that during the Term of thisAgreement he will not, exclusive of any research obligations to any third party, directly orindirectly, (i) provide any services to any other business or commercial entity engaged in themanufacture, development, marketing or sale of any medical device used in connection with thediagnosis of melanoma (the “**Field of Interest**”), (ii) participate in the formation of any businessor commercial entity in the Field of Interest or (iii) solicit or hire away, or assist orfacilitate the solicitation or hiring of, any employee or consultant of the Company.6. Direction of Projects and Inventions to the Company. Subject to the Consultant’s obligationsand confidentiality obligations to third parties, during the Term of this Agreement, the Consultantwill use his best efforts to disclose to the Chief Executive Officer of the Company, on aconfidential basis, technology and product opportunities which come to the attention of theConsultant in the Field of Interest, and any invention, improvement, discovery, process, formulaor 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 NewDiscoveries do not arise from any research undertaken by the Consultant as an employee of any thirdparty.7. Inventions Discovered by the Consultant While Performing Services Hereunder.     7.1 The Consultant will promptly and fully disclose to the Chief Executive Officer of theCompany any invention, improvement, discovery, process, formula, technique, method, trade mark,trade secret, mask work, or other intellectual property, whether or not patentable, whether or notcopyrightable (collectively, “Invention”) made, conceived, developed, or first reduced to practiceby the Consultant, either alone or jointly with others, while performing services hereunder. Allsuch Inventions are work made for hire to the extent allowed by law and, in addition, Consultanthereby assigns to
 

 
the Company all of his right, title and interest in and to any such Inventions. The Consultantwill execute any documents necessary to perfect the assignment of such Inventions to the Companyand to enable the Company to apply for, obtain, and enforce patents or copyrights in any and allcountries on such Inventions. The Consultant hereby irrevocably designates the Secretary of theCompany as his agent and attorney-in-fact to execute and file any such document and to do alllawful acts necessary to apply for and obtain patents and copyrights, and to enforce the Company’srights under this paragraph. This Section 7 will survive the termination of this Agreement.     7.2 If any part of the Invention is based on, incorporates, or is an improvement or derivativeof, or cannot be reasonably and fully made, used, reproduced, distributed and otherwise practicedor exploited without using, infringing or violating technology or intellectual property rightsowned or licensed by Consultant and not assigned hereunder, Consultant hereby grants Company aperpetual, irrevocable, worldwide royalty-free, non-exclusive, right and license, with right tosublicense, to exploit and exercise all such technology and intellectual property rights in supportof Company’s exercise or exploitation of the Inventions, other work performed hereunder, or anyassigned rights (including any modifications, improvements and derivatives of any of them).8. Confidentiality.     8.1 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 developinginformation 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 businessis extremely competitive, dependent in part upon the maintenance of secrecy, and that anydisclosure of the Confidential Information would result in serious harm to the Company.     8.2 The Consultant agrees that the Confidential Information will be used by the Consultantonly in connection with consulting activities hereunder, and will not be used in any way that isdetrimental to the Company.     8.3 The Consultant agrees not to disclose, directly or indirectly, the ConfidentialInformation 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 theCompany.     8.4 The term “Confidential Information” does not include information that was: (i) publiclyknown and made generally available in the public domain prior to the time of disclosure by thedisclosing party; (ii) becomes publicly known and made generally available after disclosure by thedisclosing 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 disclosingparty as shown by the receiving party’s files and records immediately prior to the time ofdisclosure; (iv) is obtained by
 

 
the receiving party from a third party without a breach of such third party’s obligations ofconfidentiality; and (v) is independently developed by the receiving party without use of orreference to the disclosing party’s Confidential Information, as shown by documents and othercompetent evidence in the receiving party’s possession.     8.5 The Consultant may disclose any Confidential Information that is required to be disclosedby law, government regulation or court order. If disclosure is required, the Consultant will givethe Company advance notice so that the Company may seek a protective order or take other actionreasonable in light of the circumstances.     8.6 Upon termination of this Agreement, the Consultant will promptly return to the Company allmaterials 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 withservices rendered hereunder, together with all copies of any of the foregoing. Notwithstandingsuch return, the Consultant shall continue to be bound by the terms of the confidentialityprovisions contained in this Section 8 for a period of three years after the termination of thisAgreement.9. Use of Name. It is understood that the name of the Consultant and Consultant’s affiliation withany third party will appear in disclosure documents required by securities laws, and in otherregulatory and administrative filings in the ordinary course of the Company’s business. Theabove-described uses will be deemed to be noncommercial uses. The name of the Consultant or anythird party will not be used for any commercial purpose without the Consultant’s consent.10. No Conflict; Valid and Binding. The Consultant represents that neither the execution of thisAgreement nor the performance of the Consultant’s obligations under this Agreement will result in aviolation or breach of any other agreement by which the Consultant is bound. The Companyrepresents that this Agreement has been duly authorized and executed and is a valid and legallybinding obligation of the Company, subject to no conflicting agreements.11. Notices. Any notice provided under this Agreement shall be in writing and shall be deemed tohave been effectively given (i) upon receipt when delivered personally, (ii) one day after sendingwhen sent by private express mail service (such as Federal Express), or (iii) 5 days after sendingwhen sent by regular mail to the following address:In the case of the Company:Electro-Optical Sciences, Inc