EXHIBIT 99.2
PORTLAND BREWING COMPANY
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
January 26, 2004, by and between Pyramid Breweries Inc., a Washington
corporation ("PYRAMID"), and the MacTarnahan Portland Brewing Company Voting
Trust (the "SHAREHOLDER").
RECITALS
A. Pyramid, PBC Acquisition, LLC, a Delaware limited liability
company ("ACQUISITION SUBSIDIARY"), and PBC have entered into an Asset Purchase
Agreement (as such agreement may hereafter be amended from time to time in
conformity with the provisions thereof (the "ASSET PURCHASE AGREEMENT"), which
provides for the sale of the Assets to Acquisition Subsidiary (the "SALE").
B. As a result of a Voting Agreement dated as of July 27, 2001,
Shareholder is a beneficial owner (as such term is defined under Rule 13(d)(3)
promulgated under the Securities Exchange Act of 1934, as amended) of such
number of shares of PBC's Series A Preferred Stock, par value $52.00 per share
(the "SERIES A STOCK"), and PBC's common stock, no par value per share (the
"COMMON STOCK"), as set forth on EXHIBIT A.
C. As an inducement and a condition to entering into the Asset
Purchase Agreement, Pyramid has requested that Shareholder agree, and
Shareholder has agreed (in the Shareholder's capacity as such), to enter into
this Agreement in order to facilitate the consummation of the Sale.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. Definitions.
(a) For the purposes of this Agreement, capitalized terms
that are used but not defined herein shall have the respective meanings ascribed
thereto in the Asset Purchase Agreement.
(b) "EXPIRATION DATE" shall mean the earlier to occur of
(i) such date and time as the Asset Purchase Agreement shall have been validly
terminated pursuant to its terms, or (ii) such date and time as the Sale shall
become effective in accordance with the terms and conditions set forth in the
Asset Purchase Agreement.
(c) "PERSON" shall mean any individual, any corporation,
limited liability company, general or limited partnership, business trust,
unincorporated association or other business organization or entity, or any
governmental authority.
(d) "SHARES" shall mean: (i) all securities of PBC
(including all shares of Series A Stock, Common Stock and all options, warrants
and other rights to acquire shares of Common Stock ("PBC OPTIONS") beneficially
owned by Shareholder as of the date of this Agreement, and (ii) all
additional securities of PBC (including all additional options, warrants and
other rights to acquire shares of Common Stock) of which Shareholder acquires
beneficial ownership during the period commencing with the execution and
delivery of this Agreement until the Expiration Date.
(e) A Person shall be deemed to have effected a
"TRANSFER" of a security if such Person directly or indirectly (i) offers for
sale, sells, assigns, pledges, encumbers, grants an option with respect to,
transfers or otherwise disposes of such security or any interest therein, or
(ii) enters into an agreement, commitment or other arrangement providing for the
sale of, assignment of, pledge of, encumbrance of, granting of an option with
respect to, transfer of or disposition of such security or any interest therein.
2. Restriction on Transfer, Proxies and Non-Interference; Stop
Transfer. Except as expressly contemplated by this Agreement, at all times
during the period commencing with the execution and delivery of this Agreement
and continuing until the Expiration Date, the Shareholder shall not, directly or
indirectly, (i) cause or permit the Transfer of any of the Shares to be
effected, or discuss, negotiate or make any offer regarding any Transfer of any
of the Shares, (ii) grant any proxies or powers of attorney with respect to any
of the Shares, deposit any of the Shares into a voting trust or enter into a
voting agreement or other similar commitment or arrangement with respect to any
of the Shares in contravention of the obligations of Shareholder under this
Agreement, (iii) request that PBC register the Transfer of any certificate or
uncertificated interest representing any of the Shares, or (iv) take any action
that would make any representation or warranty of Shareholder contained herein
untrue or incorrect, or have the effect of preventing or disabling Shareholder
from performing any of Shareholder's respective obligations under this
Agreement, other than to a signatory under this Voting Agreement in the case of
(i), (ii) or (iii). Shareholder hereby agrees that, in order to ensure
compliance with the restrictions referred to herein, PBC may issue appropriate
"stop transfer" instructions to its transfer agent in respect of the Shares.
3. Voting Agreement. At any meeting of PBC's shareholders called
with respect to the following, however called, and at every adjournment or
postponement thereof, Shareholder shall appear at such meeting, in person or by
proxy, or otherwise cause all of the Shares to be counted as present thereat for
purposes of establishing a quorum thereat, and Shareholder shall vote, or cause
to be voted (and on every action or approval by written consent of Shareholder
with respect to the following, act, or cause to be acted, by written consent)
with respect to all of the Shares that Shareholder are entitled to vote or as to
which Shareholder have the right to direct the voting, as of the relevant record
date:
(a) in favor of the approval and adoption of the Asset
Purchase Agreement and approval of the Sale;
(b) against the approval of any proposal that would
result in a breach by PBC of the Asset Purchase Agreement; and
(c) against any proposal made in opposition to, or in
competition with, consummation of the Sale and the other transactions
contemplated by the Asset Purchase Agreement.
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4. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Shareholder shall deliver to Pyramid an irrevocable proxy in the form
attached hereto as EXHIBIT B (the "PROXY"), which shall be irrevocable to the
fullest extent permitted by applicable law, with respect to the Shares.
5. Representations and Warranties. Shareholder hereby represents
and warrants to Pyramid and Acquisition Subsidiary as follows:
(a) Ownership of Shares. Shareholder is a beneficial
owner (as such term is defined under Rule 13(d)(3) promulgated under the
Securities Exchange Act of 1934, as amended, except that such term shall include
Shares that may be acquired more than sixty (60) days from the date hereof) of
all of the Shares. Shareholder has sole and/or shared voting power and the sole
and/or shared power of disposition with respect to the Shares.
(b) Power; Binding Agreement. Shareholder has the legal
capacity, power and authority to enter into and perform all of Shareholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by Shareholder will not violate any agreement or court order to
which Shareholder is a party or is subject, including, without limitation, any
voting agreement or voting trust. This Agreement has been duly and validly
executed and delivered by Shareholder and constitutes a valid and binding
agreement of Shareholder, enforceable against shareholders in accordance with
its terms.
(c) No Consents. To its knowledge, the execution and
delivery of this Agreement by Shareholder does not, and the performance by
Shareholder of its obligations hereunder will not, require Shareholder to obtain
any consent, approval, authorization or permit of, or to make any filing with or
notification to, any Governmental Body.
6. No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in Pyramid or Acquisition Subsidiary any direct or
indirect ownership or incidence of ownership of or with respect to any Shares.
Except as provided in this Agreement, all rights, ownership and economic
benefits relating to the Shares shall remain vested in and belong to Shareholder
and the other shareholders.
7. Shareholder Notification of Acquisition of Additional Shares.
At all times during the period commencing with the execution and delivery of
this Agreement and continuing until the Expiration Date, Shareholder shall
promptly notify Pyramid of the number of any additional shares of Series A
Stock, Common Stock and the number and type of any other voting securities of
PBC acquired by Shareholder, if any, after the date hereof.
8. PBC Stop Transfer Instructions. At all times commencing with
the execution and delivery of this Agreement and continuing until the Expiration
Date, PBC shall not register the Transfer (by book-entry or otherwise) of any
certificate or uncertificated interest representing any of the Shares unless
such Transfer is made pursuant to and in compliance with the terms and
conditions of this Agreement. PBC shall instruct its transfer agent for Series A
Stock and Common Stock (the "TRANSFER AGENT") not to Transfer, at any time
commencing with the execution and delivery of this Agreement and continuing
until the Expiration Date, any certificate or uncertificated interest
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representing any of the Shares unless and until the Transfer Agent has received
Pyramid's consent to effect any such Transfer.
9. Termination. This Agreement shall terminate immediately and
automatically, without any action on the part of any party hereto, as of the
Expiration Date.
10. Directors and Officers. Notwithstanding anything in this
Agreement to the contrary, if a Shareholder is a director or officer of PBC,
nothing contained in this Agreement shall prohibit such director or officer from
acting in his/her capacity as such or from taking such action as a director or
officer of PBC that may be required on the part of such person as a director or
officer of PBC, including acting in compliance with the Asset Purchase
Agreement.
11. Miscellaneous.
(a) Entire Agreement. This Agreement and the documents
and instruments and other agreements among the parties hereto as contemplated by
or referred to herein, including the Asset Purchase Agreement and any other
agreements referred to in the Asset Purchase Agreement, constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
(b) Certain Events. This Agreement and the obligations
hereunder shall attach to all of the Shares and shall be binding upon any person
to whom legal or beneficial ownership of any of the Shares shall pass, whether
by operation of law or otherwise, except in the case of Shares Transferred in
connection with the payment of taxes. Notwithstanding any Transfer of any of the
Shares, the transferor shall remain liable for the performance of all
obligations of the transferor under this Agreement. Notwithstanding the
foregoing or anything to the contrary set forth in this Agreement, this
Agreement and the obligations hereunder shall not attach to any Shares that are
Transferred, and shall not be binding upon any person to whom legal or
beneficial ownership of any of the Shares shall pass, in any Transfer effected
by Shareholder pursuant to the last sentence of Section 2 of this Agreement.
(c) Assignment. No party may assign either this Agreement
or any of its rights, interests, or obligations hereunder without the prior
written approval of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Any purported
assignment in violation of this Section shall be void.
(d) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed duly given (i) on the date of
delivery if delivered personally, (ii) on the date of confirmation of receipt
(or, the first business day following such receipt if the date is not a business
day) of transmission by telecopy or telefacsimile, or (iii) on the date of
confirmation of receipt (or,
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the first business day following such receipt if the date is not a business day)
if delivered by a nationally recognized courier service. All notices hereunder
shall be delivered as set forth below, or pursuant to such other instructions as
may be designated in writing by the party to receive such notice:
(i) If to Shareholder, to:
MacTarnahan Portland Brewing Company Voting Trust
00000 XX Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
with copies to:
Xxxxx X. Xxxxxx
Xxxxxx & Xxxxxx PC
0000 XX Xxxxxxxx Xxx. 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
(ii) if to PBC, to:
Portland Brewing Company
0000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer and President
Fax No.: (503)
with copies to:
Xxxxxxx, Xxxxxxxxxx & Xxxxx
0000 XX Xxxxx Xxxxxx, Xxxxxx 0000-0000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Fax No.: (000) 000-0000
(iii) if to Pyramid, to:
Pyramid Breweries Inc.
00 Xxxxx Xxxxx Xxxxxxxx Xxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax No.: (000) 000-0000
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(iv) with a copy to:
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. XxXxxx
Fax No.: (000) 000-0000
(f) Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other Persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the greatest extent possible,
the economic, business and other purposes of such void or unenforceable
provision.
(g) No Waiver. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
(h) Governing Law; Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Washington, regardless of the laws that might otherwise govern under applicable
principles of conflicts of law thereof. Each of parties irrevocably agrees that
any legal action or proceeding with respect to this Agreement or for recognition
and enforcement of any judgment in respect hereof brought by the other party
hereto or its successors or assigns may be brought and determined in the courts
of the State of Washington, and each of parties hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the nonexclusive jurisdiction of the
aforesaid courts. The parties hereby agree that mailing of process or other
papers in connection with any such action or proceeding in the manner provided
in Section 6(e) hereof or in such other manner as may be permitted by applicable
law, shall be valid and sufficient service thereof.
(i) Other Remedies; Specific Performance.
(i) Other Remedies. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached.
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(ii) Specific Performance. It is accordingly
agreed that the parties shall be entitled to seek an injunction or injunctions
to prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
(j) Waiver of Jury Trial. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF PYRAMID, ACQUISITION SUBSIDIARY,
SHAREHOLDER AND PBC IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.
(k) Counterparts. This Agreement may be executed in any
number of counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
(l) Further Assurances. At the request of any party to
another party or parties to this Agreement, such other party or parties shall
execute and deliver such instruments or documents to evidence or further
effectuate (but not to enlarge) the respective rights and obligations of the
parties and to evidence and effectuate any termination of this Agreement.
(m) Public Disclosure. Shareholder shall not issue any
statement or communication to any third party regarding the subject matter of
the Asset Purchase Agreement or the transactions contemplated thereby,
including, if applicable, the termination of the Asset Purchase Agreement and
the reasons therefor, without the prior written consent of Pyramid or
Acquisition Subsidiary.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed, or caused this
Agreement to be executed by a duly authorized officer, as of the date first
written above.
PYRAMID BREWERIES INC.
By: /s/ R. Xxxxxx Xxxxx
Name: R. Xxxxxx Xxxxx
Title: President and Chief Executive Officer
ACKNOWLEDGED AND AGREED TO (with respect to Section 8):
PORTLAND BREWING COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: CEO
[SIGNATURE PAGE TO VOTING AGREEMENT]
SHAREHOLDER
MACTARNAHAN PORTLAND BREWING
COMPANY VOTING TRUST
By: /s/ X. X. XxxXxxxxxxx
Name: Xxxxxx X. XxxXxxxxxxx
Title:
[SIGNATURE PAGE TO VOTING AGREEMENT]
EXHIBIT A
BENEFICIAL OWNERSHIP OF PORTLAND BREWING COMPANY CAPITAL STOCK
Number of Shares of Common Stock
No. of Shares of No. of Shares of Issuable Upon Exercise of
Shareholder's Name and Address Series A Stock Common Stock Outstanding Options or Warrants
-------------------------------------------------------------------------------------------------------
MacTarnahan Portland
Brewing Company Voting
Trust 5,770 7,304,062 12,000
EXHIBIT B
IRREVOCABLE PROXY
The undersigned Shareholder (the "SHAREHOLDER") of Portland Brewing
Company, an Oregon corporation ("PBC"), hereby irrevocably (to the fullest
extent permitted by law) appoints each of Xxxxx X. Xxxxxx and R. Xxxxxx Xxxxx of
Pyramid (as defined below), as the sole and exclusive attorneys and proxies of
the undersigned, with full power of substitution and resubstitution, to vote and
exercise all voting and related rights (to the full extent that the undersigned
is entitled to do so) with respect to all of the shares of capital stock of PBC
that now are or hereafter may be beneficially owned by the undersigned, and any
and all other shares or securities of PBC issued or issuable in respect thereof
on or after the date hereof (collectively, the "SHARES"), in accordance with the
terms of this Proxy. The Shares beneficially owned by Shareholder as of the date
of this Proxy are listed on the final page of this Proxy, along with the
number(s) of the stock certificate(s) that represent such Shares. Upon
Shareholder's execution of this Proxy, any and all prior proxies given by the
undersigned with respect to any Shares are hereby revoked and Shareholder agrees
not to grant any subsequent proxies with respect to the Shares until after the
Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith (the "VOTING AGREEMENT") by and between Pyramid
Breweries Inc., a Washington corporation ("PYRAMID"), PBC Acquisition, LLC, a
Delaware limited liability company ("ACQUISITION SUBSIDIARY"), and the
undersigned Shareholder of PBC, and is granted in consideration of Pyramid and
Acquisition Subsidiary entering into that certain Asset Purchase Agreement of
even date herewith (as it may hereafter be amended from time to time in
accordance with the provisions thereof, the "ASSET PURCHASE AGREEMENT") by and
among Pyramid, PBC and Acquisition Subsidiary. The Asset Purchase Agreement
provides for the sale of the Assets (as such term is defined in the Asset
Purchase Agreement) (the "SALE"). As used in this Proxy, the term "EXPIRATION
DATE" shall mean the earlier to occur of (i) such date and time as the Asset
Purchase Agreement shall have been validly terminated pursuant to its terms, or
(ii) such date and time as the Sale shall become effective in accordance with
the terms and conditions set forth in the Asset Purchase Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by Shareholder, at any time prior to the Expiration
Date, to act as Shareholder's attorney and proxy to vote all of the Shares, and
to exercise all voting, consent and similar rights of the undersigned with
respect to all of the Shares (including, without limitation, the power to
execute and deliver written consents) at every annual or special meeting of
shareholders of PBC (and at every adjournment or postponement thereof), and in
every written consent in lieu of such meeting:
(a) in favor of the approval and adoption of the Asset
Purchase Agreement and approval of the Sale;
(b) against the approval of any proposal that would
result in a breach by PBC of the Asset Purchase Agreement; and
(c) against any proposal made in opposition to, or in
competition with, consummation of the Sale and the other transactions
contemplated by the Asset Purchase Agreement.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided in clauses (a), (b) and (c) above.
Shareholder may vote the Shares on all other matters. Notwithstanding anything
in this Proxy to the contrary, if Shareholder is a director or officer of PBC,
nothing contained in this Proxy shall prohibit such director or officer from
acting in his/her capacity as such or from taking such action as a director or
officer of PBC that may be required on the part of such person as a director or
officer of PBC, including acting in compliance with the Asset Purchase
Agreement.
Any obligation of Shareholder hereunder shall be binding upon the
successors and assigns of Shareholder.
This Proxy shall terminate and be of no further force and effect,
automatically upon the Expiration Date.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Shareholder has caused this Irrevocable Proxy to be
duly executed as of the day and year first above written.
SHAREHOLDER:
MACTARNAHAN PORTLAND BREWING
COMPANY VOTING TRUST
Signature: /s/ X. X. XxxXxxxxxxx
Name: Xxxxxx X. XxxXxxxxxxx
Title:_________________________________________
Address: 00000 XX Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile No.:_________________________________
Shares beneficially owned:
5,770 Series A Stock
7,304,062 Common Stock
12,000 Common Stock issuable upon exercise
of outstanding options or warrants
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
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