EXHIBIT 10.25
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into as of
January 31, 2000 between PORTLAND BREWING COMPANY, an Oregon corporation (the
"Company"), and Xxxxx Xxxxxx ("Consultant").
RECITALS:
A. Consultant is a shareholder, officer, and director of Xxxxx Brewing Company
and will be appointed a director of the Company in connection with the
Company's purchase of certain assets from Xxxxx Brewing Company pursuant to
an Asset Purchase Agreement between the Company and Xxxxx Brewing Company;
and
B. The Company desires to retain Consultant to provide certain consulting
services and Consultant desires to provide such services to the Company
upon the terms and conditions described in this Agreement.
AGREEMENT
1. CONSULTING SERVICES. Consultant will advise and consult with the management
of the Company concerning such matters related to brand management and marketing
as management of the Company may reasonably request. Consultant will comply with
the policies, standards, and regulations of the Company as may be established
from time to time, and will perform his consulting duties faithfully,
intelligently, to the best of his ability, and in the best interests of the
Company. The consulting services provided will not amount to more than 60 hours
per calendar month and will be provided on dates and at times reasonably
convenient to both parties.
2. STATUS OF CONSULTANT. Consultant will act as an independent contractor of the
Company, and under no circumstances will Consultant be considered an employee of
the Company. CONSULTANT SHALL HAVE NO RIGHT, POWER OR AUTHORITY OF ANY KIND OR
NATURE TO BIND THE COMPANY TO ANY CONTRACT OR COMMITMENT, TO INCUR ANY
OBLIGATION OR INDEBTEDNESS ON BEHALF OF THE COMPANY, OR OTHERWISE TO ACT FOR OR
ON BEHALF OF THE COMPANY IN ANY RESPECT. The Company will not provide any
insurance covering Consultant's consulting activities, and Consultant will
provide whatever insurance Consultant believes to be necessary under the
circumstances to cover his consulting activities. The Company will not withhold
any taxes from any consideration paid to Consultant, and Consultant will assume
full responsibility for the payment of all federal, state and local taxes or
contributions imposed or required under employment insurance, social security,
worker's compensation, and income tax laws arising by reason of the performance
of Consultant's consulting services. Consultant will defend, indemnify, and hold
harmless the Company, and its shareholders, directors, officers, employees, and
agents from and against any and all losses, claims, expenses, costs, attorney's
fees, demands, damages, suits, judgments, actions and causes of action resulting
from or arising out of Consultant's failure to pay or remit such taxes or
contributions, but not including any claim or action arising out of or
challenging the characterization of Consultant as an independent contractor
rather than an employee of the Company.
3. NON-COMPETITION. Consultant covenants and agrees, on behalf of himself and
any affiliated business or entity ("Affiliates"), that during the term of this
Agreement and so long as Consultant is a director of the Company, Consultant and
his Affiliates shall not, in North America:
(i) sell, produce or market product or render services or advice to any
business competitive with the business of the Company, except Consultant and his
Affiliates, as a contract xxxxxx, may produce but not market product for The
Boston Beer Company or Oregon Beer & Brewing Company, a division of The
Boston Beer Company or under any other agreement or arrangement which Company
may consent to in writing; or
(ii) directly or indirectly (A) induce or attempt to induce any employee of
the Company to leave the employ of the Company, (B) in any way interfere with
the relationship between the Company and any employee of the Company, (C)
employ, or otherwise engage as an employee, independent contractor, or
otherwise, any employee of the Company, or (D) induce or attempt to induce any
customer, supplier, licensee, or business relation of the Company to cease doing
business with the Company, or in any way interfere with the relationship between
any customer, supplier, licensee, or business relation of the Company.
Nothing in this Agreement, shall prevent or limit Consultant or his
Affiliates from selling Xxxxx Brewing Company's remaining brewery assets as an
operating business or otherwise, subject to the Company's right of first refusal
to purchase any such assets or business on the same terms and conditions as any
other potential purchaser. Any such sale to a party other than the Company shall
not be construed to be competitive with the Company for the purposes of this
Agreement.
Consultant agrees that this covenant is reasonable with respect to its
duration, geographical area, and scope.
4. CONFIDENTIALITY. In performing services for the Company, Consultant
acknowledges that he will receive and have access to confidential information.
Consultant agrees not to use or disclose any confidential information except as
expressly agreed to by the Company.
5. CONSIDERATION. During the term of this Agreement, the Company will pay to
Consultant the sum of $4,500.00 per calendar month, payable on the last day of
each calendar month. Consultant will be entitled to receive consideration for
his consulting services regardless of the number of hours of services actually
provided by Consultant in any given month and regardless of whether the Company
requests Consultant to provide any services at all in any given month. The
Company will reimburse Consultant for all reasonable expenses necessarily
incurred by Consultant in the performance of his consulting services, provided
Consultant complies with the reimbursement policies of the Company as may be
established from time to time.
6. TERMINATION. This Agreement shall terminate on May 31, 2000, unless extended
until June 30, 2000 by the Company. To extend the Agreement to June 30, 2000,
the Company shall give Consultant notice to that effect on or before May 10,
2000. This Agreement will terminate immediately upon the death of Consultant.
7. OWNERSHIP OF WORK. All right, title, and interest of every kind and nature
whatsoever in and to computer programs, software, firmware, inventions,
discoveries, improvements, developments, processes, formulae, methods,
techniques, trade secrets, products, and research actually made, developed, or
secured by Consultant, or demonstrably anticipated to be made developed, or
secured by Consultant in connection with the provision of services under this
Agreement, shall be the sole and exclusive property of the Company and shall be
disclosed promptly to the Company. All work created pursuant to this Agreement
that may be protectable under copyright laws, shall be deemed to be "work made
for hire" and will be owned by the Company; and, in any event, Consultant
assigns all copyrights in such work to the Company.
8. GENERAL.
8.1 No Assignment by Consultant. This Agreement is personal to Consultant
and Consultant may not assign or delegate any of his rights or obligations under
the Agreement without the prior written consent of the Company.
8.2 Binding Effect. Except as otherwise provided in this Agreement, this
Agreement will be binding upon the parties and their heirs, personal
representatives, successors, and assigns, and will inure to their benefit.
8.3 Amendment. This Agreement may be amended only by a written instrument
executed by the party against whom enforcement is sought.
8.4 Notices. All notices or other communications required or permitted by
this Agreement must be in writing and will be deemed to have been duly given
when delivered personally to the party for whom such notice was intended, or
upon actual receipt if sent by facsimile or delivered by a nationally recognized
overnight delivery service, or at the expiration of the third day after the date
of deposit if deposited in the United States mail, postage pre-paid, certified
or registered, return receipt requested, to the respective parties at the
following addresses, or at such other address that a party may specify by notice
given to the other parties:
To Consultant: To the Company:
Xxxxx Xxxxxx Portland Brewing Company
0000 XX Xxxxxxxxx Xxxxx 0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
With a copy to:
Xxxxxx Xxxx, LLP Xxxxxxx, Xxxxxxxxxx & Xxxxx, P.C.
0000 Xxxxxxx Xxxxx XxxXxxx Xxxxxx, Xxxxxx 0000-0000
000 XX Xxxxx Xxx. 0000 XX Xxxxx Xxx.
Xxxxxxxx XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Attn: Xxxxxx X. Xxxxxxxxxx
8.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
8.6 Severability. If any provision of this Agreement is deemed to be
invalid or unenforceable in any respect for any reason, the validity and
enforceability of any such provision in any other respect and of the remaining
provisions of this Agreement will not be in any way impaired.
8.7 Further Assurances. The parties agree to execute other documents
reasonably necessary to further effect and evidence the terms of this Agreement,
as long as the terms and provisions of the other documents are fully consistent
with the terms of this Agreement.
8.8 No Third-Party Beneficiaries. Nothing in this Agreement, express or
implied, is intended to confer on any person, other than the parties to this
Agreement, any right or remedy of any nature whatsoever.
8.9 Non-waiver. The waiver by any party of a breach or violation of any
provision of this Agreement will not operate and may not be construed as a
waiver of any other provision or any subsequent breach of the same provision. No
waiver will be binding unless executed in writing by the party making the
waiver.
8.10 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Oregon.
8.11 Attorney's Fees. In the event of litigation arising out of, or in
any related to any term set forth in this Agreement, including (without
limitation) any proceeding brought under the United States Bankruptcy Code, the
losing party will pay to the prevailing party, in addition to any other relief
awarded,
the prevailing party's reasonable attorney's fees, costs and expenses incurred
at arbitration, at trial, on appeal and on petition for review.
8.12 Entire Agreement. This Agreement sets forth the entire understanding
of the parties with respect to the subject matter of this Agreement and
supersedes any and all prior and contemporaneous negotiations, understandings
and agreements, whether written or oral, between the parties with respect to
such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
PORTLAND BREWING COMPANY
/s/ XXXXXXX X. XXXXX
-------------------------------------------
Its: President and Chief Executive Officer
CONSULTANT:
/s/ XXXXX XXXXXX
-------------------------------------------
Xxxxx Xxxxxx
