exv10w5



 




Exhibit 10.5


AMENDED AND RESTATED




CONSULTING AGREEMENT




     This
AMENDED AND RESTATED CONSULTING AGREEMENT (the “Agreement”) is made as of December 28,
2007, to be effective as of the 1st day of November 2007 (“Effective Date”) by and between Ecology
Coatings, Inc., a Nevada corporation (the “Company”), and MDL Consulting Group, LLC, a Michigan
limited liability company (the “Consultant”).



R E C I T A L S :




     WHEREAS, the Company and the Consultant entered into a Consulting Agreement on July 1, 2006
(the “Original Agreement”);



     WHEREAS, the Company desires to obtain Consultant’s consulting services as set forth in this
Agreement;



     WHEREAS, Consultant desires to provide such services to the Company directly for a fee that
will compensate Consultant for time spent for services rendered and costs advanced by Consultant as
contemplated in this Agreement; and



     WHEREAS, the parties hereto desire to amend, supersede and restate the Original Agreement in
its entirety as provided in this Agreement.



     NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and conditions
hereinafter set forth, the parties agree as follows:



     1. Retention of Consultant. The Company hereby engages and retains Consultant and Consultant
hereby agrees to use Consultant’s best efforts to render to the Company the consulting services for
a term of thirty-six (36) months commencing on the Effective Date of this Agreement (the “Term”).



     2. Consultant’s Services. Consultant’s services under this Agreement shall consist of the
following:



          2.1 Evaluate future financings, potential alliances and business opportunities;




          2.2 Advise the Company regarding potential alliances, joint ventures, joint development
agreements and long-term strategic planning; and




          2.3 Assist in reviewing and evaluating the advisability, price or structure of a proposed
financing, or an acquisition or disposition of any of the Company’s assets, upon the request of the
Company.




     3. Payment for Services. The Company shall pay Consultant for the services rendered hereunder
as follows:



 









 





          3.1 On or before November 30, 2007, the Company shall pay Consultant Twelve Thousand Five
Hundred dollars ($12,500);




          3.2 On or before December 21, 2007, the Company shall pay Consultant Nineteen Thousand Five
Hundred dollars ($19,500);




          3.3 Commencing on January 1, 2008 and on the first day of each month each month thereafter
during the Term of this Agreement, the Company shall pay Consultant Sixteen Thousand dollars
($16,000) per month; and




          3.4 The Company shall issue the Consultant options exercisable to purchase one hundred
thousand (100,000) shares of Common Stock (each an “Option”) under the Company’s 2007 Stock Option
and Restricted Stock Plan. The exercise price of the Options will be the closing price of the
stock on the date of this Agreement, December 20, 2017. Each Option will be exercisable until
December 19, 2017. Twenty-five thousand (25,000) of the Options will be exercisable on and after
June 20, 2008; twenty-five thousand (25,000) of the Options will be exercisable on and after
December 20, 2008; twenty-five thousand (25,000) of the Options will be exercisable on and after
June 20, 2009; and the remaining twenty-five thousand (25,000) of the Options will be exercisable
on and after December 20, 2009. The Options shall be deemed to have a value of $.001 each.




          3.5 The Company will reimburse Consultant for all direct expenses incurred by Consultant in
performing such services. Consultant shall obtain the approval of the Company prior to incurring
any expenses. Consultant will tender requests for reimbursement to the Company and the Company will
make the reimbursement to Consultant within ten (10) days after its receipt of written
notification.




     4. Consultant’s Time Commitment. Consultant shall devote such time as reasonably requested by
the Company for consultation, advice and assistance on matters described in this Agreement and
provide the same in such form as the Company requests. The Company agrees that Consultant shall
not be prevented or barred from rendering services similar or dissimilar in nature for and on
behalf of any person, firm or corporation other than the Company.



     5. Independent Contractor. The relationship created under this Agreement is that of
Consultant acting as an independent contractor. The parties acknowledge and agree that Consultant
shall have no authority to, and shall not, bind the Company to any agreement or obligation with any
third party. Consultant is not providing legal or accounting services or services as a
broker/dealer.



     6. Nondisclosure of Confidential Information. Consultant shall maintain as secret and
confidential all valuable information heretofore or hereafter acquired, developed or used by the
Company relating to its business, operations, employees and customers that may give the Company a
competitive advantage in its industry (all such information is hereinafter referred to as
“Confidential Information”). The parties recognize that, by reason of Consultant’s duties under
this Agreement, Consultant may acquire Confidential Information. Consultant recognizes that all
such Confidential Information is the property of the Company. During the term of Consultant’s
engagement by the Company, Consultant shall exercise all due and diligent precautions to protect
the integrity of any or all of the Company’s documents containing Confidential Information. In



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consideration of the Company entering into this Agreement, Consultant shall not, directly or
indirectly, use, publish, disseminate or otherwise disclose any Confidential Information obtained
during Consultant’s engagement by the Company without the prior written consent of the Company.
The parties agree that this Paragraph 6 shall survive the termination of this Agreement.




     7. Communications with Consultant. Consultant will not independently conduct a due diligence
review of the Company and will, to a great extent, be relying upon information provided by the
Company in rendering services under this Agreement.



     8. Exculpation of Liability and Indemnification. All decisions with respect to consultations
or services rendered by Consultant for transactions negotiated for and presented to the Company by
Consultant shall be those of the Company, and Consultant shall have no liability with respect to
such decisions. In connection with the services Consultant renders under this Agreement, the
Company indemnifies and holds Consultant harmless against any and all losses, claims, damages and
liabilities and the expense, joint and several, to which Consultant may become subject and will
reimburse Consultant for any legal and other expenses, including attorney’s fees and disbursements
incurred by Consultant in connection with investigating, preparing or defending any actions
commenced or threatened or claim whatsoever, whether or not resulting in the liability, insofar as
such are based upon the information the Company has supplied to Consultant under this Agreement.
In connection with the services Consultant renders under this Agreement, Consultant indemnifies and
holds the Company harmless against any and all losses, claims, damages and liabilities and the
expense, joint and several, to which Company may become subject and will reimburse Company for any
legal and other expenses, including attorney’s fees and disbursements incurred by the Company in
connection with investigating, preparing or defending any actions commenced or threatened or claim
whatsoever, whether or not resulting in the liability, insofar as such losses, claims, damages and
liabilities are based upon or in connection with the services Consultant has rendered under this
Agreement.



     9. Entire Agreement. This Agreement contains the entire agreement and understanding between
the parties hereto with respect to the subject matter contained herein.  There are no
representations or warranties other than as shall be set forth in this Agreement.



     10. Waiver. No waiver or modification of this Agreement shall be valid unless in writing and
signed by the parties to this Agreement.



     11. Notices. All notices, consents, requests, demands and offers required or permitted to be
given under this Agreement will be in writing and will be considered properly given or made when
personally delivered to the party entitled thereto, or when mailed by certified United States mail,
postage prepaid, return receipt requested, addressed to the addresses appearing in this Agreement. 
A party may change his address by giving notice to the other party to this Agreement.



     12. Counterparts. This Agreement may be signed in any number of counterparts, each of which
shall be an original, but all of which, taken together, shall constitute one agreement.  It shall
not be required that any single counterpart hereof be signed by the parties, so long as each party
signs any counterpart of this Agreement.



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     13. Applicable Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Michigan.



     14. Attorneys’ Fees. In case of any action or proceeding to compel compliance with, or for a
breach of, any of the terms and conditions of this Agreement, the prevailing party shall be
entitled to recover from the losing party all costs of such action or proceeding, including, but
not limited to, reasonable attorneys’ fees.



     IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective as of the day
and year first above written.




	 	 	 	 	 
	 	 	ECOLOGY COATINGS, INC.,

a Nevada corporation
	 
	 	 	 	 
	 

	 	By:	 	 
	 
	 	
 

	 

	 	Name:	 	 
	 

	 	
 

	 

	 	Its:	 	 
	 

	 	
 

	 
	 	 	 	 
	 

	 	Address:
	 	35980 Woodward Ave., Suite 200
	 

	 	 	 	Bloomfield Hills, Michigan 48304
	 
	 	 	 	 
	 	 	MDL CONSULTING GROUP, LLC,

a Michigan limited liability company
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	
 

	 

	 	Denise Lachman

	 

	 	Its: Managing Member
	 
	 	 	 	 
	 

	 	Address:
	 	4460 Dow Ridge
	 

	 	 	 	Orchard Lake, Michigan 48324







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