EXHIBIT 10.23
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into
effective as of November 1, 1999 by and between PORTLAND BREWING COMPANY, an
Oregon corporation (the "Company"), and R. XXXXX XxxXXXXXXXX ("Consultant").
RECITAL
Consultant is a director of the Company, a director of Harco Products,
Inc., an Oregon corporation and a wholly-owned subsidiary of the Company
("Harco"), and a former officer of Harco. The Company desires to retain
consulting services from Consultant and Consultant desires to provide consulting
services to the Company.
AGREEMENT
1. CONSULTING SERVICES
Consultant will advise and consult with the management of the Company on
all matters reasonably requested of him, including (without limitation) matters
related to Harco or any other subsidiary or affiliate of the Company. 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 20
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. 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.
3. CONSIDERATION
The Company will pay to Consultant the sum of $2,500.00 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.
4. TERMINATION
Either party may terminate this Agreement upon 30 days' prior written
notice to the other party. This Agreement will terminate immediately upon the
death of Consultant.
5. GENERAL
5.1 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.
5.2 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.
5.3 Amendment. This Agreement may be amended only by a written instrument
executed by the party against whom enforcement is sought.
5.4 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 XxxXxxxxxxx Portland Brewing Company
00000 X.X. Xxxxxxxxx Xxxxxx 0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
5.5 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.
5.6 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.
5.7 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.
5.8 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.
5.9 Nonwaiver. 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.
5.10 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Oregon.
5.11 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.
5.12 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
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Its: President and Chief Executive Officer
CONSULTANT:
/s/ XXXXX XXXXXXXXXXX
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Xxxxx XxxXxxxxxxx
