EXHIBIT
10.5
CONSULTING
AGREEMENT
This
CONSULTING AGREEMENT ("Agreement") is made and entered into in
duplicate and shall be effective on May 19, 2009 (“Effective
Date”), by and between GWS Technologies, Inc., a Delaware
corporation ("Corporation"), and Cota, LLC, a Delaware Limited
Liability Company (“Consultant").
RECITALS
A.
It
is the desire of the Corporation to engage the Consultant to
establish and oversee an Advisory Board of subject matter experts
in the renewable/alternative energy disciplines; and further to
assist the Corporation in obtaining financing for various joint
venture projects, including but not limited to commercial retrofits
of solar equipment and the development of solar farms; and further
to assist the Corporation in the planning, building and commercial
exploitation of alternative energy installations and
facilities.
B.
The
Consultant has expertise in real estate development, marketing,
business development, management and alternative energy product
manufacturing.
C.
It is
therefore the desire of the Corporation to engage the services of
the Consultant to consult with the Corporation regarding the
matters specified herein.
NOW,
THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND
UNDERTAKINGS HEREIN SPECIFIED AND FOR OTHER GOOD AND VALUABLE
CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:
1.
Term of Agreement. The
respective duties and obligations of the parties shall commence on
the Effective Date and shall continue until and terminate on May
19, 2011.
2.
Consultations. The
Consultant shall use his experience in real estate development,
marketing , business development and alternative energy product
manufacturing to consult with the Board and the officers of the
Corporation, at reasonable times, concerning any issue of
importance regarding the matters specified in the Recitals
above.
3.
No Management Power of Consultant.
The
business affairs of the Corporation and the operation of the
business of the Corporation shall be conducted by the officers and
administrative staff and employees of the Corporation. The
Consultant shall not have any power or obligation of direction,
management, supervision or control of the officers, administrative
staff or other employees of the Corporation or otherwise be
involved with the management of the business of the Corporation
during the term of this Agreement.
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4.
Authority to Contract. The
Consultant shall have no power to, and the Consultant shall not,
obligate the Corporation in any manner whatsoever to any contract,
agreement, undertaking, commitment or other obligation.
5.
Compensation. The
Corporation shall grant to the Consultant stock options to purchase
five hundred thousand (500,000) shares of the Corporation’s
common stock at an exercise price of twenty-five cents ($0.25) per
share, with the exercise period as follows: (i) during the first
twenty-six (26) weeks commencing on July 1, 2009, the Consultant
shall be allowed to exercise five thousand (5,000) shares per week;
and (ii) after twenty-six (26) weeks, the Consultant shall be
allowed to exercise any unexercised options. Additionally,
the Corporation shall issue and deliver to Consultant three hundred
sixty-four thousand (364,000) restricted shares of the
Corporation's common stock.
6.
Services of Consultant Not Exclusive. The
Consultant shall devote such time as is necessary to fulfill his
obligations to the Corporation specified in this Agreement. The
Consultant may represent, perform services for, and be employed by,
any additional persons as the Consultant, in the Consultant's sole
discretion, determines to be necessary or appropriate; provided,
however, that such performance by Consultant does not interfere
with Consultant’s performance of services to the Corporation
specified in this Agreement.
7.
Relationship Created. The
Consultant is not an employee of the Corporation for any purpose
whatsoever, but is an independent contractor. The Corporation
is interested only in the results obtained by the Consultant. The
Consultant shall have the sole and exclusive control of the manner
and means of performing. Accordingly, and without limitation,
the Corporation shall not have the right to require the Consultant
to collect accounts, investigate customer or shareholder
complaints, attend meetings, periodically report to the
Corporation, follow prescribed itineraries, keep records of
business transacted, make adjustments, conform to particular
policies of the Corporation, or do anything else outside of
requiring the Consultant to consult with the Corporation concerning
the matters specified herein. All expenses and disbursements,
including, but not limited to, those for travel and maintenance,
entertainment, office, clerical and general administrative
expenses, that may be incurred by the Consultant in connection with
this Agreement shall be borne and paid wholly and completely by the
Consultant, and the Corporation shall not be in any way responsible
or liable therefor.
8.
New Developments. Consultant
agrees that all designs, plans, reports, specifications, drawings,
inventions, processes, and other information or items produced by
Consultant concerning the business of the Corporation shall be
assigned to the Corporation as the sole and exclusive property of
the Corporation and the Corporation's assigns, nominees and
successors. On request and at the Corporation's expense, Consultant
agrees to help the Corporation obtain patents and copyrights for
any new developments. This includes providing data, plans,
specifications, descriptions, documentation, and other information,
as well as assisting the Corporation in completing any required
application or registration.
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9.
Non-Disclosure of Proprietary and Confidential Information By
Consultant. During
the term of this Agreement, Consultant may have access to
Corporation Proprietary Information (as used in this Agreement, the
term "Corporation Proprietary Information" shall mean and include,
without limitation, any and all building plans, architectural
renderings, engineering drawings, zoning information,
communications with city and county building departments, marketing
and sales data, plans and strategies, financial projections, client
lists, prospective client lists, promotional ideas, data concerning
the Corporation’s services, designs, methods, inventions,
improvements, discoveries, designs whether or not patentable,
"know-how", training and sales techniques, and any other
information of a similar nature disclosed to Consultant or
otherwise made known to Consultant as a consequence of or through
this Agreement during the term hereof. The term Corporation
Proprietary Information shall not include any information that (i)
at the time of the disclosure or thereafter is or becomes generally
available to and known by the public, other than as a result of a
disclosure by Consultant or any agent or representative of
Consultant in violation of this Agreement, or (ii) was available to
Consultant on a non-confidential basis from a source other than the
Corporation, or
