EXHIBIT 6.10
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), is made and entered into as
of November 18, 1998, by and among ELECTRA PARTNERS, INC., an Oregon corporation
("Electra"), XXXXXXX X. XXXXX, Trustee of the Xxxxxxx X. Xxxxx Family Trust
("Trustee"), XXXXXXX X. XXXXX, an individual ("Xxxxx"), XXXXXXX XXXXXXX XXXXX
III, an individual ("Xxxxxxx Xxxxx"), and XXXXXXXXX XXXXXXX XXXXX, an individual
("Xxxxxxxxx Xxxxx") (Electra, Trustee, Xxxxx, Xxxxxxx Xxxxx, and Xxxxxxxxx
Xxxxx) are sometimes together referred to in this Agreement as the "Xxxxx
Parties"), and XXXXXX X. XXXXXXXXXXX, an individual ("X. X. XxxXxxxxxxx"),
XXXXXX X. XXXXXXXXXXX, an individual ("R. S. MacTarnahan"), XXXX XXXXXXXXXXX, an
individual ("X. XxxXxxxxxxx"), MACTARNAHAN LIMITED PARTNERSHIP, an Oregon
limited partnership (the "Limited Partnership"), BLACK LAKE INVESTMENTS, a
general partnership ("Black Lake"), XXXXXX MILL & LOGGING SUPPLY CO., an Oregon
corporation, doing business as the Xxxxxx Company ("Xxxxxx"), and HARCO
PRODUCTS, INC., an Oregon corporation ("Harco") (X. X. XxxXxxxxxxx, R. S.
MacTarnahan, X. XxxXxxxxxxx, the Limited Partnership, Black Lake, Harmer, and
Harco, are sometimes together referred to in this Agreement as the "MacTarnahan
Parties").
RECITALS.
A. The Xxxxx Parties and the MacTarnahan Parties own, or have the right
to acquire, that number of shares of the voting common stock of Portland
Brewing, Inc., an Oregon corporation (the "Company"), listed opposite the name
of each in Schedule 1.
B. The Company is obligated to the Limited Partnership under and pursuant
to that certain Business Loan Agreement dated as of December 15, 1995, between
Borrower and Bank of America NT & SA, as amended (a) in six amendments numbered
one through five, and seven (a number six having never been executed), and dated
as of July 23, 1996, December 19, 1996, March 27, 1997, April 23, 1997, November
24, 1997, and May, 1998, respectively, the lender's interest in which was
assigned to and assumed by Lender pursuant to an Assignment of Interest under
Loan Documents - Private, dated as of August 17, 1998 (the "Assumption
Agreement"), and as further amended (b) in that certain Credit and Forbearance
Agreement (the "Forbearance Agreement") between Borrower and Lender dated August
17, 1998. Such Business Loan Agreement, as amended by the documents listed in
clauses (a) and (b), is herein referred to as the "Loan Agreement."
C. Pursuant to an agreement of even date herewith (the "Loan
Restructuring Agreement"), between the Company, the Limited Partnership and
Xxxxxx, among other things (i) the Limited Partnership has agreed to forgive a
portion of the Company's indebtedness evidenced by the Loan Agreement, and the
Company has agreed to execute and deliver to the Limited Partnership its
$2,100,000 Promissory Note (the "Term Note"), and (ii) in consideration for
Xxxxxx'x guarantee and pledge of collateral given to Bank of the Northwest (the
"Bank"), each as security for a $600,000 line of credit made by the Bank to the
Company, the Company has agreed to execute and deliver to Xxxxxx the Company's
Reimbursement Agreement (the "Reimbursement Agreement"). The Limited
Partnership and Xxxxxx'x willingness to execute and deliver the Loan
Restructuring Agreement and to grant the accommodations and/or make the
undertaking set forth therein is conditioned upon the Xxxxx Parties' execution
and delivery of this Agreement.
X. Xxxxx, as the President and a current shareholder of the Company, and
each of the other Xxxxx Parties, as current shareholders of the Company, have a
direct and material interest in both the loan restructuring effected under and
pursuant to the Loan Restructuring Agreement and in the credit accommodations
described in the Reimbursement Agreement, and expect to be directly and
materially benefited thereby.
AGREEMENT.
NOW THEREFORE, in consideration of the premises, as a material inducement
to the Limited Partnership and Xxxxxx to enter into, execute and deliver the
Loan Restructuring Agreement, and in consideration of the mutual covenants set
forth herein, the parties agree:
1. SHARES. As used in this Agreement, the term "Shares" means the issued
and outstanding voting capital stock in the Company currently owned (either
beneficially or of record), or subsequently acquired during the term of this
Agreement, by the Xxxxx Parties, or by any of them, including any Shares that
the Xxxxx Parties do not own (either beneficially or of record) but as to which
the Xxxxx Parties, or any of them, exercises voting control.
2. TERM. The term of this Agreement shall commence on the date hereof
and shall terminate when (a) all obligations evidenced by the Term Note have
been paid and satisfied in full, AND (b) the Reimbursement Agreement has
terminated in accordance with Section 1 thereof.
3. AGREEMENTS TO VOTE SHARES. At each annual meeting of the shareholders
of the Company, at each special meeting of the shareholders of the Company
regardless of the purpose for which called, and at any other time that
shareholders of the Company have the right to, or shall, vote on any matter
submitted to the shareholders for vote, then the Xxxxx Parties, and each of
them, will vote all of the Shares (or shall consent in writing in lieu of a
meeting of shareholders of the Company, if applicable) in the manner prescribed
by the MacTarnahan Representative (defined below).
4. MACTARNAHAN REPRESENTATIVE. For purposes of this Agreement, the
"MacTarnahan Representative" shall be a person designated from time to time in
accordance with this Section 4 to exercise the MacTarnahan Parties' rights under
this Agreement. The initial MacTarnahan Representative hereunder shall be
Xxxxxx X. "Xxxxx" MacTarnahan. The MacTarnahan Parties may, from time to time,
change the initial MacTarnahan Representative by so-stating in a written notice
given to the Xxxxx Parties and to the Company in accordance with Section 5.
Unless and until a written notice signed by all of the MacTarnahan Parties shall
be given in accordance with Section 5, the initial MacTarnahan Representative,
or the MacTarnahan Representative last designated in accordance with this
Section 4, shall be the MacTarnahan Representative hereunder.
5. RESTRICTIVE LEGEND. The Company will cause all certificates
representing Shares to bear the following legend:
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A CERTAIN VOTING AGREEMENT DATED AS OF ________,
1998, BY AND AMONG THE COMPANY AND CERTAIN SHAREHOLDERS OF
THE COMPANY, A COPY OF WHICH AGREEMENT WILL BE FURNISHED TO
THE REGISTERED HOLDER HEREOF, WITHOUT CHARGE, UPON WRITTEN
REQUEST TO THE COMPANY THEREFOR."
6. MISCELLANEOUS PROVISIONS.
(a) NOTICES. All notices, demands or other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered in
person, or by United States mail, certified or registered, with return receipt
requested, or by telex or facsimile copy and confirmed, or otherwise actually
delivered:
(i) if to Electra to: Electra Partners, Inc.
c/o Portland Brewing, Inc.
0000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
(ii) if to Trustee: Xxxxxxx X. Xxxxx Family Trust
c/o Portland Brewing, Inc.
0000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
(iii) if to Xxxxx,
Xxxxxxx Xxxxx or
Xxxxxxxxx Xxxxx: Xxxxxxx X. Xxxxx
c/o Portland Brewing, Inc.
0000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
with a copy to: Del Xxxxxx, Esq.
0000 XX Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
(iv) if to the Company: Portland Brewing, Inc.
0000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000
with copy to: Xxxxxxx Xxxxxxxxxx & Xxxxx P.C.
Suites 1600-1800 Pacwest Center
0000 XX Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(v) if to X. X. XxxXxxxxxxx,
R. S. MacTarnahan, the
Limited Partnership, Black
Lake, Harmer, or Harco to:
c/o Xxxxxx X. "Mac" MacTarnahan
00000 XX Xxxxxxxxx Xxx.
Xxxxxxxx, XX 00000
Telecopy:
---------------------------
with copy to: Xxxxxx & Xxxxxx, XXX
Xxxxx 000
0000 X.X. Xxxxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
or at such other address as may have been furnished by such person or entity
in writing to the other parties. Any such notice, demand or other
communication shall be deemed to have been given on the date actually
delivered by hand or three days after the date mailed or on the date sent by
telex or facsimile, as the case may be.
(b) SEVERABILITY AND GOVERNING LAW. If any Section or any part of
a Section within this Agreement is rendered void, invalid or unenforceable by
any court of law for any reason, such invalidity or unenforceability shall
not void or render invalid or unenforceable any other Section or part of a
Section in this Agreement and this Agreement shall be construed in a manner
which, as nearly as possible, reflects the original intent of the parties.
This Agreement is made and entered into in the State of Oregon and the laws
of that state shall govern the validity and interpretation hereof and the
performance by the parties hereto of their respective duties and obligations
hereunder.
(c) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute a single instrument.
(d) COSTS AND ATTORNEYS' FEES. In the event that any action,
suit, or other proceeding is instituted concerning or arising out of this
Agreement, the prevailing party shall recover all of such party's costs, and
attorneys' fees incurred in each and every such action, suit, or other
proceeding, including any and all appeals or petitions or petitions for
review therefrom, and any proceeding before a U.S. Bankruptcy Court.
(e) AMENDMENTS AND WAIVERS. The terms of this Agreement may be
amended, waived, discharged or terminated only by the written consent of all
of the Xxxxx Parties and all of the MacTarnahan Parties.
(f) SUCCESSORS AND ASSIGNS. All rights, covenants and agreements
of each of the parties contained in this Agreement shall, except as otherwise
provided herein, be binding upon and inure to the benefit of that party's
respective heirs, successors and assigns, including without limitation any
transferee of any of the Shares.
(g) ENTIRE AGREEMENT. This Agreement, together with the exhibit
listed below, contains the entire understanding of the parties and there are
no further or other agreements or understandings, written or oral, in effect
between the parties relating to the subject matter hereof unless expressly
referred to herein.
Schedule 1 - Ownership of the Company Shares
(h) INJUNCTIVE RELIEF. The parties acknowledge that in the event of
any breach of this Agreement by the Xxxxx Parties, remedies at law will be
inadequate, and the MacTarnahan Parties shall be entitled to specific
performance of the obligations of the Xxxxx Parties, and each of them, and to
such appropriate injunctive relief as may be granted by a court of competent
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
Electra: ELECTRA PARTNERS, INC.,
an Oregon corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Title: President
Trustee: XXXXXXX X. XXXXX FAMILY TRUST
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Xxxxxxx X. Xxxxx, Trustee
Xxxxx:
/s/ Xxxxxxx X. Xxxxx
----------------------------------
XXXXXXX X. XXXXX
Xxxxxxx Xxxxx: /s/ Xxxxxxx X. Xxxxx
----------------------------------
XXXXXXX XXXXXXX XXXXX III
Xxxxxxxxx Xxxxx /s/ Xxxxxxxxx Xxxxxxx Xxxxx
----------------------------------
XXXXXXXXX XXXXXXX XXXXX
"Xxxxx Parties"
X. X. XxxXxxxxxxx:
/s/ Xxxxxx X. XxxXxxxxxxx
----------------------------------
XXXXXX X. XXXXXXXXXXX
X. X. XxxXxxxxxxx:
/s/ R. Xxxxx XxxXxxxxxxx
----------------------------------
/s/ R. XXXXX XXXXXXXXXXX
Limited Partnership: MACTARNAHAN LIMITED PARTNERSHIP,
an Oregon limited partnership
By: Xxxxxx Mill & Logging Supply Co.,
an Oregon corporation, dba Xxxxxx
Company, its general partner
By: /s/ Xxxxxx X. XxxXxxxxxxx
----------------------------------
Title: President
Black Lake: BLACK LAKE INVESTMENTS,
a general partnership
By: /s/ R. Xxxxx XxxXxxxxxxx
----------------------------------
Title:
-------------------------------
Xxxxxx: XXXXXX MILL & LOGGING SUPPLY CO.,
an Oregon corporation, dba Xxxxxx Company
By: /s/ R. Xxxxx XxxXxxxxxxx
----------------------------------
Title:
-------------------------------
Harco: HARCO PRODUCTS, INC.,
an Oregon corporation
By: /s/ R. Xxxxx XxxXxxxxxxx
----------------------------------
Title:
-------------------------------
"MacTarnahan Parties"
SCHEDULE 1 TO VOTING AGREEMENT
OWNERSHIP OF THE COMPANY SHARES
NAME NUMBER OF SHARES OWNED
---- ----------------------
Electra Partners, Inc. 180,300 shares plus an option to purchase 43,848.75
shares
Xxxxxxx X. Xxxxx Family Trust 666,192 shares
Xxxxxxx X. Xxxxx Option to purchase 36,000 shares
Xxxxxxx Xxxxxxx Xxxxx III 525 shares
Xxxxxxxxx Xxxxxxx Xxxxx 525 shares
X. X. XxxXxxxxxxx 22,860 shares plus an option to purchase 6,000
shares
Xxxx XxxXxxxxxxx 600 shares
R. S. MacTarnahan Option to purchase 6,000 shares
MacTarnahan Limited Partnership Warrant to purchase 43,848.75 shares
Black Lake Investments 73,335 shares
Xxxxxx Mill & Logging Co. 765,162 shares
Harco Products, Inc. 30,000 shares
