exh10-5_0609.htm


    Exhibit
10.5

     

    PROFESSIONAL
SERVICES AGREEMENT

    


    


    THIS
AGREEMENT (“Agreement”) is made and entered into effective as of June 1, 2009
(“Effective Time”) by and between Wolff & Company, Alternative Energy
Advisors, Inc., a North Carolina corporation, having an office and place of
business at 616 Small Drive, Elizabeth City, N.C. 27909 (“Consultant") and
Evergreen Energy Inc. having an office and place of business at 1225 17th St.,
Suite 1300, Denver, Colorado, 80202 ("Company"); Company and Consultant being
hereinafter sometimes referred to collectively as the "Parties".

    


    RECITALS

    


    Company desires to obtain the services
of Consultant on the terms and subject to the conditions set forth herein. 
Consultant has reviewed this Agreement and discussed the services to be
performed hereunder and has represented to Company that Consultant is qualified
and willing to perform said services in accordance with the provisions of this
Agreement.

    


    THEREFORE, in consideration of the
premises and of the obligations to be performed and covenants to be kept by the
Parties, the Parties agree as follows:

    


    ARTICLE
I

    SCOPE
OF WORK

    


    1.1           The Work. 
During the term of this Agreement Consultant shall assist various Company
projects as requested by the Company Representative as set forth in Article IV.
Such services, as they may be amended from time to time by written agreement of
the Parties, shall be performed by Steve Wolff and are hereinafter sometimes
referred to herein as the "Work".

    


    1.2           Compliance with
Laws.  Consultant shall perform the Work in a professional and
competent manner, in accordance with the terms of this Agreement and all
applicable laws, rules, orders and regulations of any governmental or
quasi-governmental agency having jurisdiction over the Work or the
Parties.

    


    ARTICLE
II

    SCHEDULE
OF WORK

    


    2.1           Commencement of
Work.  The work shall be commenced by Consultant on or about the
Effective Time.

    


    2.2           Completion of
Work.  The Work shall be completed by May 31, 2010.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    ARTICLE
III

    COMPENSATION
AND MANNER OF PAYMENT

    


    3.1           Compensation. 
Consultant shall be compensated for the Work at the rate of One Hundred Dollars
($150.00) per hour; provided however, that if Consultant accumulates one hundred
twenty (120) hours of billable time in any four (4) week period, the
compensation will increase to two hundred ($200.00) per hour for all time billed
in excess of one hundred twenty (120) hours; provided further, that for the
period of time Consultant is receiving severance payments from the Company, the
first fifteen (15) hours of Work per month shall be provided free of charge to
the Company (“Free Work”).  One half (50%) of Consultant’s travel time, up
to a maximum of 8 hours per day, shall be recorded against and offset the Free
Work.  No other travel time shall be assessed or invoiced to the Company as
Work without approval of the Company’s Representative.

    


    3.2           Payment
Schedule.  Consultant, within thirty (30) days following the end of
each calendar month, shall submit a statement of services rendered and
reimbursable expenditures incurred for Work done in that calendar
month.

    


    3.3           Statements. 
Consultant's statements shall each be detailed by days and hours of Work
performed.  All expenses claimed shall be supported by receipts, fully paid
vouchers or other appropriate evidence of expenditure.  Contractor shall
reference Purchase Order                                   
 on all invoices to ensure prompt payment for services. 
Company shall not be liable for delayed payments due to Contractor’s failure to
properly reference the Purchase Order.

    


    3.4           Payment by
Company.  Subject to Section 3.6 below, Company shall pay Consultant
and reimburse Consultant for reimbursable expenditures within thirty (30) days
following receipt and approval of Consultant's statement.

    


    3.5           Reimbursable
Expenditures.  Consultant shall be reimbursed for the reasonable
costs of travel, subsistence, lodging and out-of-pocket expenses (such as, but
not limited to, long distance telephone calls, photocopying and the like). 
Air travel shall be coach.  No other expense shall be reimbursable by
Company unless such expenditures are approved in writing by the Company
Representative (defined hereafter) prior to Consultant incurring such
expenditures.

    


    3.6           Disagreements Regarding
Expenditures.  In the event of any disagreement with regard to
whether an expenditure is reimbursable, and if so, whether the amount claimed is
reasonable, the decision of Company Representative shall be final.

    


    ARTICLE
IV

    COMPANY
REPRESENTATIVE

    


    4.1           Company's
Representative for the purposes of this Agreement shall be the President &
CEO of the Company. Company shall have the right to designate a new
Representative by notice to Consultant.  The Company Representative shall
have the power


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    to
approve or deny reimbursable expenditures, and to modify reporting requirements,
scheduling or other details of the Work.  Such modifications may be made
orally or in writing.  If made in writing, the writing shall be delivered
in accordance with Article X.  If made orally a follow-up writing delivered
in accordance with Article X shall be delivered to Consultant within three (3)
working days thereafter. 

    


    ARTICLE
V

    REPORTS,
CONFIDENTIAL INFORMATION AND

    INTELLECTUAL
PROPERTY

    


    5.1           The
Confidentiality Agreement, attached hereto as Exhibit A, represents the
governing agreement related to non-disclosure and confidentiality of data and
information supplied to or known to Consultant.

    


    5.2           All
computer programs, drawings, designs, maps, plans, know how, patents,
inventions, data, reports and other physical and intellectual property prepared
by Consultant under this Agreement shall be the sole property of Company except
to the extent that such items consist of information available to the general
public.  All property that is the sole property of Company hereunder shall
be delivered to Company by Consultant upon completion of the Work, and shall not
be reprinted, distributed, published, or disclosed to third parties by
Consultant without the prior written consent of Company.  Unpublished
information (graphic or verbal) concerning Company or the Work which is
furnished or disclosed to Consultant by Company or developed by Consultant
through performance of the Work shall not be disclosed to third parties by
Consultant without the prior written consent of Company.  This Article
shall survive termination of this Agreement.

    


    ARTICLE
VI

    ASSIGNMENT

    


    6.1           Consultant
shall not assign all or any part of its respective right or duties hereunder
(including, without limitation, the right to receive payments) without the prior
written consent of Company.  Consultant shall not subcontract or use agents
to conduct the Work hereunder without the prior written consent of
Company.  Any attempt to assign or subcontract this Agreement without the
consent of Company shall be ineffective and shall constitute a breach of this
Agreement.

    


    ARTICLE
VII

    INDEPENDENT
CONTRACTOR RELATIONSHIP,

    INDEMNIFICATION
AND AUTHORITY

    


    7.1           Independent
Contractor.  The Work shall be performed by Consultant as an
independent contractor.  Consultant shall not constitute or be deemed to be
an employee, servant, agent or representative of Company for any purpose
whatsoever unless and except as specifically so provided in this
Agreement.  All employees, agents and permitted subcontractors of
Consultant shall be under the direct charge of Consultant and shall also be
independent contractors as regards their relationship with
Company.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    7.2           Indemnification. 
Consultant assumes full risk and responsibility for all activities undertaken
pursuant to this Agreement and agrees to indemnify and hold Company, its
officers, directors, employees and affiliated companies harmless from any loss,
injury, damage, liability or claim of any third party of any kind or character
arising out of Consultant's negligent performance of its services
hereunder.  This provision shall survive termination of this
Agreement.

    


    7.3           Authority. 
Consultant does not have, and shall not hold himself out to any third party as
having any general authority to represent or make binding agreements on behalf
of Company.  All potential business transactions shall be subject to
Company’s own acceptance, rejection or other action in Company’s sole
discretion.

    


    ARTICLE
VIII

    INSURANCE

    


    8.1.           Insurance. 
Consultant shall be responsible for maintaining insurance coverage as would be
expected in a normal business environment for a Consultant, including, but not
limited to, Automobile Liability Insurance.

    


    ARTICLE
IX

    TERM
AND TERMINATION

    


    9.1           Effective Date. 
This Agreement shall be effective as of the day and date first written
above.

    


    9.2           Termination. 
This Agreement shall terminate on the first of the following events to
occur:

    


    
      	
                          9.2.1
      

            	
               
      Agreement by the Parties.

            


    

    


    
      	
                          9.2.2

            	
               
      Completion of the Work and payment by Company of Consultant's final
      statement, but no later than the end of business on May 31,
      2010.

            


    

    


    
      	
                          9.2.3

            	
               
      The tenth day after Notice of Termination given by Company to
      Consultant.

            


    

    


    9.3           Obligations Upon
Termination.  In the event of termination in accordance with this
Article IX, Company shall pay Consultant through the last day worked or as
otherwise agreed, and thereafter neither Company nor Consultant shall have any
further obligation to the other, except as otherwise provided herein. 
However, in the case of termination by Company on the basis of Consultant's
breach of this Agreement, Company's obligation upon termination shall be solely
to pay Consultant for Work done prior to the date of termination which in the
sole opinion of Company was satisfactory and in accordance with the terms of
this Agreement.  Company shall also have such remedies for breach as may be
provided by law or equity.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    ARTICLE
X

    NOTICE

    


    10.1           All
formal notices ("Notices") shall be addressed as set forth in the Preamble
hereto.  All Notices shall be given by (1) personal delivery or by
electronic communication with a confirmation copy sent by mail, return receipt
requested or (2) by registered or certified mail, return receipt
requested.  All Notices shall be effective and shall be deemed delivered
(i) if by personal delivery on the date of delivery, (ii) if by electronic
communication on the next business day following transmittal, and (iii) if
solely by mail on the date of actual receipt.  Company or Consultant may
change its address for notice from time to time by so notifying the other in
accordance with this Article.

    


    ARTICLE
XI

    ACCESS

    


    11.1           Access to
Property.  The Company agrees to permit Consultant, its employees or
agents, reasonable access to the Company's property for the purpose of
performing work assigned by the Company's authorized
representative.

    


    11.2           Access to
Information.  The Company further agrees to permit Consultant, its
employees or agents, reasonable access to necessary information, strictly at the
sole discretion and judgment of the Company's authorized
representative.

    


    ARTICLE
XII

    INSPECTION

    


    12.1           Inspection of
Work.  Consultant shall permit the authorized representative of the
Company to inspect the assignment(s), or any part thereof, as the same
progresses and to perform the work in strict compliance with this Agreement and
pursuant to designations submitted to Consultant by the Company.

    


    12.2           Record Keeping. 
Consultant shall maintain accurate and complete records in connection with the
performance of the assignment(s) hereunder in dated order by occurrence, which
the Company may utilize in any reasonable manner.

    


    ARTICLE
XIII

    SOLE
AGREEMENT AND MODIFICATION

    


    13.1           This
Agreement contains and sets forth the entire agreement between Company and
Consultant with respect to the subject matter hereof, all previous agreements
between them with respect to the subject matter hereof being expressly
superseded and replaced hereby.  Except as provided in Article IV, no
modification,


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    alteration,
or extension of this Agreement shall be effective unless in writing executed by
the Parties subsequent to the date of this Agreement.

    


    ARTICLE
XIV

    CONTROLLING
LAW

    


    14.1           This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of Colorado except those addressing conflicts of law.

    


    ARTICLE
XV

    MEDIATION/ARBITRATION

    


    15.1           Mediation/Arbitration of
Disputes.  Any controversy or claim arising out of or relating to
this Agreement (including, without limitation, the breach thereof) shall be
settled by:

    


     

    (a)  
Mediation. 
Before resolution of the matter by arbitration, the matter will be mediated with
any such mediation being held in Denver, Colorado before one mediator
experienced in executive compensation. The mediation shall be administered by
JAMS pursuant to the rules and procedures of JAMS.

     

    (b)  
Arbitration.  If
mediation is unsuccessful, the matter shall be settled by final, binding and
non-appealable arbitration in Denver, Colorado by a single arbitrator in
accordance with the rules of JAMS then in effect for employment related
disputes.  The arbitrator shall, to the extent possible, be experienced in
the resolution of disputes of the type arising hereunder and shall be selected
by mutual agreement of the parties.  Any award entered by the arbitrator
shall be final, binding and nonappealable and judgment may be entered thereon by
either party in accordance with applicable law in any court of competent
jurisdiction.  This arbitration provision shall be specifically
enforceable.

    


    (c)  
Unless otherwise directed by the arbitrator, each party shall be responsible for
its own expenses relating to the conduct of the mediation and/or arbitration
(including reasonable attorneys' fees and expenses) and shall share the fees of
JAMS equally.

    


    ARTICLE
XVI

    SUCCESSORS
AND ASSIGNS

    


    16.1           This
Agreement shall be binding upon and inure to the benefit of the respective
successors and permitted assigns of Company and Consultant.

    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    IN WITNESS of this Agreement the
Parties have set forth their signatures below.

    


    


    
      
        
          
            	
                    COMPANY:

                  	
                                                

                  	
                    CONSULTANT:

                  
	 
      	 
      	 
      
	 
      	 
      	 
      
	
                    Evergreen
      Energy Inc.

                  	 
      	
                    Wolff
      & Company, Alternative Energy

                  
	 
      	 
      	
                    Advisors,
      Inc.

                  
	 
      	 
      	 
      
	
                    By: /s/ Kevin
Collins

                  	 
      	
                    By:
      /s/ Steve
      Wolff

                  
	
                            
      Kevin R. Collins

                  	 
      	
                    Steve
      Wolff

                  
	
                            
      President & CEO

                  	 
      	
                    President

                  
	 
      	 
      	
                    EIN    
      26-3877070

                  


          

        

      

    

     

     

     

     

    
 

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    CONFIDENTIALITY
AGREEMENT

    


    THIS AGREEMENT is made and
effective as of the 1st day of June, 2009, by and between Steve Wolff, individually and Wolff
& Company, Alternative Energy Advisors, Inc., a North Carolina
corporation on behalf of itself and its subsidiaries, having an office at 616
Small Drive, Elizabeth City, N.C. 27909 (hereinafter, “RECIPIENT”), and
Evergreen Energy Inc., a Delaware corporation on behalf of itself and its
subsidiaries, all offices located at 1225 17th St.,
Suite 1300, Denver Colorado 80202 (hereinafter, “Evergreen” or “DISCLOSING
PARTY”).  RECIPIENT and Evergreen are sometimes hereinafter referred to
individually as a “Party” and collectively as the “Parties”.

    


    WHEREAS, Evergreen controls
and has in its possession valuable proprietary, confidential information, as
defined below; and

    


    WHEREAS, RECIPIENT may be
providing services as requested by DISCLOSING PARTY pursuant to the Professional
Services Agreement between the Parties, dated effective June 1, 2009 (the
“Project”), and it is necessary that DISCLOSING PARTY disclose to RECIPIENT
certain proprietary, confidential information; and

    


    WHEREAS, DISCLOSING PARTY is
willing to disclose such information, and RECIPIENT is willing to receive such
information and for a period of five (5) years following receipt will restrict
its disclosure and use pursuant to the terms and conditions set forth
herein;

    


    NOW THEREFORE, the Parties
hereby agree as follows:

    


    1.                                Confidential
Information.  “Confidential Information” shall mean:

    


    
      	
               
      

            	
              (a)

            	
              any
      confidential information relating to the DISCLOSING PARTY and the
      Project;

            


    

    


    
      	
               
      

            	
              (b)

            	
              any
      confidential information relating to patents or improvements thereto,
      licenses, technical information and know-how and other proprietary
      information relating to the K-Fuel® Technology which is owned, developed,
      patented or licensed by or to DISCLOSING PARTY or its affiliates or
      subsidiaries, which relates in any way to the Project;
  and

            


    

    


    
      	
               
      

            	
              (c)

            	
              any
      confidential information relating to other projects or facilities which
      are owned, controlled or being developed by DISCLOSING PARTY, or its
      affiliates or subsidiaries; and

            


    

    


    
      	
               
      

            	
              (d)

            	
              engineering
      studies and reports, process descriptions and evaluations, designs, flow
      sheets, material balances, detailed drawings, technical studies,
      laboratory analyses, contracts, agreements, guarantees, fuel
      supply

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    and
suppliers, K-FuelTM market information, customers, permits and authorizations,
financial reports, offering memoranda, projections, sales and marketing
information, information relating to litigation, memoranda and any such other
information given to RECIPIENT by DISCLOSING PARTY, whether written or
oral.

    


    2.                                Nondisclosure/Insider
Trading.

    


    
      	
              (a)  

            	
                 Except
      as provided for in Sections 3 and 4  hereof, such Confidential
      Information will be used by RECIPIENT solely for the purpose of
      evaluations or due diligence in connection with the Project.  All
      such Confidential Information given to RECIPIENT by DISCLOSING PARTY shall
      be held in confidence by RECIPIENT or its officers, directors, employees,
      agents, consultants, representatives or affiliates (collectively,
      “Representatives”), and shall not be disclosed to any other person or used
      except for the purposes set forth above, without the prior written
      approval of DISCLOSING PARTY.

            


    

    


    
      	
              (b) 

            	
                 In
      view of the fact that the Confidential Information may be material and
      non-public, RECIPIENT agrees not to (and agrees to advise its
      representatives not to) purchase, sell, or otherwise trade in and
      securities or derivatives of securities of Evergreen (or facilitate or
      encourage the trading of any such securities by any other person), except
      in compliance with applicable laws.

            


    

    


    3.                                Exceptions to
Confidentiality.  This Agreement shall not apply to Confidential
Information which:

    


    
      	
              (a)  

            	
                 was
      generally available to the public prior to receipt thereof by RECIPIENT
      from DISCLOSING PARTY, or which subsequently becomes  generally
      available to the public except by wrongful act or omission of RECIPIENT or
      an employee or agent of RECIPIENT;
or

            


    

    


    
      	
              (b)  

            	
                 was
      in RECIPIENT’s possession prior to receipt from DISCLOSING PARTY;
      or

            


    

    


    
      	
              (c)  

            	
                 was
      received by RECIPIENT from a third party, unless RECIPIENT knows or has
      reason to know of an obligation of secrecy of the third party to
      DISCLOSING PARTY with respect to such information;
  or

            


    

    


    
      	
              (d)  

            	
                 is
      ordered or required to be disclosed by an order of a Court or governmental
      administrative agency, or legally compelled or required to disclose the
      Confidential Information (by means of interrogatory, deposition, subpoena,
      civil investigative demand, or similar process), provided, however, that
      DISCLOSING PARTY is immediately notified by RECIPIENT of such order,
      demand, or other requirement for disclosure
of

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    the
Confidential Information and DISCLOSING PARTY is given adequate opportunity to
contest or to object to such order or to seek an appropriate protective
order.

    


    4.                                Disclosure of Confidential
Information.  Confidential Information may be disclosed by RECIPIENT
to those of its employees, agents, consultants, representatives or affiliates
who require knowledge thereof in connection with their duties in performing
consulting services for the RECIPIENT and who are obligated to hold such
Confidential Information in confidence and restrict its use consistent with
RECIPIENT’s obligations under this Agreement.  RECIPIENT shall obtain
similar agreements of confidentiality from their employees, agents, consultants,
representatives or affiliates, as appropriate, and in any case RECIPIENT shall
be responsible for any disclosure of Confidential Information by any of their
officers, directors, employees, agents, consultants, representatives or
affiliates in violation of this Confidentiality Agreement.

    


    5.                                Location of Confidential
Information.  RECIPIENT shall keep a record of the location of all
Confidential Information and the recipients thereof.  Upon written request
of DISCLOSING PARTY or termination of this Agreement, RECIPIENT shall promptly
return all Confidential Information and any other information received by
RECIPIENT to DISCLOSING PARTY or, at the request of DISCLOSING PARTY, RECIPIENT
shall destroy all such information. An authorized representative of RECIPIENT
shall certify the destruction of all such information.

    


    6.                                Intellectual
Property.  This Agreement shall not be construed to grant to
RECIPIENT any patent, license, know-how, trade secret or any other rights to the
Project, or to use any related licenses or patent, trade secret or know-how,
which are owned, by DISCLOSING PARTY or its affiliates.

    


    7.                                Non-Competition. 
RECIPIENT agrees that its officers, directors, employees, agents,
representatives and affiliates shall not use the Confidential Information,
directly or indirectly, to compete with, or use the Confidential Information to
the disadvantage of DISCLOSING PARTY or its affiliates or subsidiaries with
respect to the Projects or for the use or benefit of any competitor of
DISCLOSING PARTY.

    


    8.                                ACCURACY OF CONFIDENTIAL
INFORMATION.  DISCLOSING PARTY MAKES NO WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF THE
CONFIDENTIAL INFORMATION. THE RECIPIENT AGREES THAT NEITHER THE COMPANY NOR ITS
REPRESENTATIVES SHALL HAVE ANY LIABILITY WHATSOEVER, INCLUDING WITHOUT
LIMITATION LIABILITY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL
DAMAGES OF ANY NATURE TO THE RECIPIENT OR TO ANY OF ITS REPRESENTATIVES
RESULTING FROM THIS AGREEMENT OR USE OF THE CONFIDENTIAL
INFORMATION


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    9.                                Specific
Performance.  RECIPIENT acknowledges that monetary damages may not
be an adequate remedy for any breach by RECIPIENT of this Agreement, and that
DISCLOSING PARTY shall have the right to an injunction issued by a court of
applicable jurisdiction for specific performance to prevent RECIPIENT from any
further breaches of this Agreement.

    


    10.                                Choice of Law. 
This Agreement shall be governed by the laws of the State of Colorado, excluding
its conflict of laws rules.  Each Party hereto agrees that the federal and
state courts located in the County of Denver, Colorado shall have exclusive
jurisdiction over them in the event of any dispute.

    


    11.                                Entire
Agreement.  This Agreement contains the full and complete
understanding of the Parties with respect to the subject matter hereof, and
supersedes all prior representations and understandings, whether oral or
written.  This Agreement may not be modified in any manner except by
written amendment executed by both Parties.

    


    12.                                Counterparts and Faxed
Signatures.  This Agreement may be executed in counterparts, and in
the absence of an original signature, faxed or PDF signatures will be considered
the equivalent of an original signature.

    


    IN WITNESS WHEREOF, as of the
date first written above, the Parties have executed this Agreement by their duly
authorized officers in duplicate counterparts, each of which shall be considered
an original.

    


    


    


    RECIPIENT:

    


    Steve
Wolff, individually and Wolff & Company, Alternative Energy Advisors,
Inc.

    


    


    By:
/s/ Steve
Wolff

          Steve
Wolff

          President

    


    


    DISCLOSING
PARTY:

    


    Evergreen
Energy Inc.

    


    


    By:
/s/ William G.
Laughlin

          William G.
Laughlin

         
Vice President, General Counsel & Secretary