STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made as of the 10th
day of May 2004, by and between MACTARNAHAN LIMITED PARTNERSHIP, an Oregon
limited partnership ("MACTARNAHAN"), and XXXXXX DEVELOPMENT CORPORATION, an
Oregon corporation ("XXXXXX"), and ELECTRA PARTNERS, INC., an Oregon corporation
("ELECTRA") (Xxxxxx and Electra are each sometimes referred to as a
"SHAREHOLDER" or together as the "SHAREHOLDERS").
X. Xxxxxx owns 600,000 shares of the common stock of Portland Brewing
Company, an Oregon corporation ("PBC"), and Electra owns 1,966,982 shares of the
common stock of PBC. The PBC common stock owned by the Shareholders is herein
referred to as the "Common Stock," and is subject to a Voting Agreement dated
July 27, 2001.
B. Pursuant to that certain Asset Purchase Agreement dated as of
January 26, 2004 (the "ASSET PURCHASE AGREEMENT"), PBC has agreed to sell, and
PBC Acquisition, LLC, an affiliate of Pyramid Breweries Inc., has agreed to
purchase, certain assets of PBC; and, PBC has agreed to use a portion of the
proceeds to redeem the outstanding Series A Preferred Stock from MacTarnahan and
Xxxxxx at Closing.
C. In connection with Closing under the Asset Purchase Agreement (as
the term "Closing" is defined therein), MacTarnahan, also a holder of PBC's
common stock, desires to purchase from the Shareholders, and the Shareholders
desire to sell to MacTarnahan, all of the Common Stock, such purchase and sale
to be on the terms, and subject to the conditions, stated in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties hereby agree as follows:
1. PURCHASE AND SALE OF COMMON STOCK.
1.1 AGREEMENT TO BUY AND SELL. On and subject to the terms and
conditions of this Agreement, MacTarnahan shall purchase from each of the
Shareholders, and each of the Shareholders shall sell to MacTarnahan, all of its
shares of Common Stock for the consideration specified below.
1.2 PURCHASE PRICE. MacTarnahan shall pay to the Shareholders at the
Closing (defined below) the sum of One Hundred Thousand and 00/100 Dollars
($100,000) (the "Purchase Price") remitted in the form of two (2) Cashiers
Checks drawn in U.S. funds; one made payable to Electra Partners, Inc., in the
amount of Seventy-Six Thousand Six Hundred Twenty-Six and 25/100 Dollars
($76,626.25), and the other to Xxxxxx Development Corp., in the amount of
Twenty-Three Thousand Three Hundred Seventy-Three and 75/100 Dollars
($23,373.75).
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1.3 CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") will take place at the offices of Xxxxxxx, Xxxxxxxxxx
& Xxxxx, P.C., 0000 XX Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000,
concurrently on the date and at the time that Closing of the asset acquisition
under the Asset Purchase Agreement occurs as well as the Deferred Redemption
Agreement.
1.4 DELIVERIES AT CLOSING.
(a) MACTARNAHAN'S DELIVERIES. At the Closing, MacTarnahan will
deliver to the Shareholders (i) the Purchase Price; and (ii) such other
customary instruments, documents, and certificates reasonably satisfactory to
Shareholders as will be necessary to carry out the intent and effectuate the
purposes of this Agreement.
(b) SHAREHOLDERS' DELIVERIES. At the Closing, Shareholders
will deliver to MacTarnahan (i) stock certificates representing the Common
Stock, free of all liens, claims and encumbrances (other than restrictions under
the federal and state securities laws), properly endorsed, or with stock powers
executed in blank, and (ii) such other customary instruments, documents, and
certificates reasonably satisfactory to MacTarnahan as will be necessary to
carry out the intent and effectuate the purposes of this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders hereby represent and warrant to MacTarnahan that:
2.1 ORGANIZATION; EXISTENCE; AND POWER
Each Shareholder is a corporation duly organized and validly existing
under the laws of the State of Oregon and has all requisite corporate power and
authority to own or lease its assets and to carry on its business as now
conducted. The execution and delivery by each Shareholder of this Agreement, the
transfer of the Common Stock pursuant hereto and the performance of each
Shareholder's obligations hereunder have been duly authorized by all necessary
corporate action. Each Shareholder has full corporate power to execute and
deliver this Agreement, to transfer the Common Stock and to carry out and
perform its obligations under the terms of this Agreement. This Agreement
constitutes a valid and binding obligation of each Shareholder, enforceable
against each Shareholder in accordance with its terms.
2.2 COMMON STOCK
The number of shares of Common Stock identified in Recital A hereto
constitute all of the common stock of PBC legally and directly owned by the
Shareholders. It does not include shares owned individually by Xxxxxxx X. Xxxxx
III, Xxxxxxxxx Xxxxx XxXxxxx and Xxxxx Xxx Xxxxxxxx, children and spouse of
Xxxxxxx X. Xxxxx, respectively. The Common Stock, when delivered in accordance
with the terms hereof for the consideration expressed herein, will be duly and
validly issued, fully paid and nonassessable, free of any liens, claims,
encumbrances and rights of purchase, and, assuming the accuracy of the
representations of MacTarnahan in
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this Agreement, will comply with all applicable federal and state securities
laws and will be free of restrictions on transfer other than restrictions on
transfer under this Agreement and under applicable state and federal securities
law.
2.3 BROKERAGE
The Shareholders have not retained any broker or finder in connection
with the transactions contemplated by this Agreement, and none shall be paid.
2.4 FULL DISCLOSURE
The Shareholders have filed with the Securities and Exchange Commission
(the "SEC"), or PBC has filed on their behalf, all required forms, reports,
registration statements and documents, if any, required to be filed by them with
the SEC (collectively, "SHAREHOLDER SEC REPORTS"), all of which complied as to
form when filed in all material respects with the applicable provisions of the
Securities Act and the Exchange Act, as the case may be. Accurate and complete
copies of the Shareholder SEC Reports, if any, have been made available to
MacTarnahan, by delivery to Xxxxxx X. XxxXxxxxxxx and Xxxxx XxxXxxxxxxx,
Directors of Portland Brewing Company since 1985, and by the SEC's website,
xxx.xxx.xxx. As of their respective dates, the Shareholder SEC Reports
(including documents incorporated by reference therein and all exhibits and
schedules thereto) did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
3. REPRESENTATIONS AND WARRANTIES OF MACTARNAHAN
MacTarnahan hereby represents and warrants that:
3.1 AUTHORIZATION
MacTarnahan is a limited partnership duly organized and validly
existing under the laws of the State of Oregon and has all requisite limited
partnership power and authority to own or lease its assets and to carry on its
business as now conducted. The execution and delivery by MacTarnahan of this
Agreement, the purchase of the Common Stock pursuant hereto and the performance
of MacTarnahan's obligations hereunder have been duly authorized by all
necessary limited partnership action. MacTarnahan has full limited partnership
power to execute and deliver this Agreement, to purchase the Common Stock and to
carry out and perform its obligations under the terms of this Agreement. This
Agreement constitutes a valid and binding obligation of MacTarnahan, enforceable
against MacTarnahan in accordance with its terms.
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3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT
MacTarnahan will acquire the Common Stock for investment for
MacTarnahan's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and MacTarnahan has no present
intention of selling, granting any participation in, or otherwise distributing
the same. MacTarnahan does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Common Stock.
3.3 BROKERAGE
MacTarnahan has not retained any broker or finder in connection with
the transactions contemplated by this Agreement, and none shall be paid.
4. CONDITIONS TO MACTARNAHAN'S OBLIGATIONS AT CLOSING
The obligations of MacTarnahan under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions, the
waiver of which may only be made in writing:
4.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of each Shareholder contained in
Section 2 shall be true on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the date of
Closing.
4.2 PERFORMANCE
Each Shareholder shall have performed and complied in all material
respects with all other agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
Closing.
4.3 ASSET PURCHASE AGREEMENT
The parties to the Asset Purchase Agreement shall be prepared to close
the transaction contemplated thereby (it being understood that this agreement
shall be effective only if the Closing contemplated in the Asset Purchase
Agreement occurs).
4.4 NO INJUNCTION, ETC.
No injunction or other restraining order shall have been issued or
threatened and no hearing to cause an injunction or other restraining order to
be issued shall be pending or noticed with respect to any action, suit or
proceeding seeking to enjoin or otherwise prevent the consummation of any of the
transactions contemplated by this Agreement or the Asset Purchase Agreement.
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5. CONDITIONS OF THE SHAREHOLDERS' OBLIGATIONS AT THE CLOSING
The obligations of the Shareholders to MacTarnahan under this Agreement
are subject to the fulfillment on or before the Closing of each of the following
conditions, the waiver of which may only be made in writing:
5.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties of MacTarnahan contained in Section
3 shall be true on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the Closing.
5.2 PERFORMANCE
MacTarnahans shall have performed and complied in all material respects
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before Closing.
5.3 ASSET PURCHASE AGREEMENT
The parties to the Asset Purchase Agreement shall be prepared to close
the transaction contemplated thereby (it being understood that this Agreement
shall be effective only if the Closing contemplated in the Asset Purchase
Agreement occurs).
5.4 NO INJUNCTION ETC.
No injunction or other restraining order shall have been issued or
threatened and no hearing to cause an injunction or other restraining order to
be issued shall be pervading or noticed with respect to any action, suit or
proceeding seeking to enjoin or otherwise prevent the consummation of any of the
transactions contemplated by this Agreement or the Asset Purchase Agreement.
6. MISCELLANEOUS
6.1 SURVIVAL OF WARRANTIES
The warranties, representations and covenants of the Shareholders and
MacTarnahan contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing.
6.2 SUCCESSORS AND ASSIGNS
Except as otherwise provided herein, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
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liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
6.3 GOVERNING LAW
This Agreement shall be governed by and construed under the laws of the
State of Oregon as applied to agreements among Oregon residents entered into and
to be performed entirely within Oregon.
6.4 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
6.5 TITLES AND SUBTITLES
The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
6.6 NOTICES
All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed to have been given for all
purposes (a) upon personal delivery, (b) one day after being sent, when sent by
professional overnight courier service from and to locations within the United
States, (c) five days after posting when sent by registered or certified mail,
or (d) on the date of confirmation of transmission when sent by facsimile,
addressed (i) if to the Shareholders at the address set forth on the signature
pages hereto; or (ii) if to MacTarnahan at the addresses set forth on the
signature pages hereto. Any party hereto may from time to time by notice in
writing to the other parties as provided herein, designate a different mailing
address or a different person to which such notices or demands are thereafter to
be addressed or delivered.
6.7 AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the party to be charged with such amendment or waiver.
6.8 SEVERABILITY
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
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[Signatures on the Following Pages]
IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement as of the date first written above.
SHAREHOLDERS:
XXXXXX DEVELOPMENT CORPORATION,
an Oregon corporation
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
Address for personal or messenger delivery:
Xxxxxx Development Corporation
c/o Farmington Landfill, Inc.
00000 XX Xxxxxxxxxx Xx.
Xxxxx, XX 00000
Address for mail delivery:
Xxxxxx Development Corporation
c/o Farmington Landfill, Inc.
00000 XX Xxxxxxxxxx Xx. XXX #000
Xxxxx, XX 00000
ELECTRA PARTNERS, INC.,
an Oregon corporation
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
Address for personal or messenger delivery:
Electra Partners, Inc.
x/x Xxxxxxxxxx Xxxxxxxx, Inc.
00000 XX Xxxxxxxxxx Xx.
Xxxxx, XX 00000
Address for mail delivery:
Electra Partners, Inc.
x/x Xxxxxxxxxx Xxxxxxxx, Inc.
00000 XX Xxxxxxxxxx Xx. XXX #000
Xxxxx, XX 00000
MACTARNAHAN:
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MACTARNAHAN LIMITED PARTNERSHIP,
an Oregon limited partnership
By: /s/ Xxxxxx X. XxxXxxxxxxx
Name: Xxxxxx X. XxxXxxxxxxx
Title: Partner
Address for personal or messenger delivery:
MacTarnahan Limited Partnership
00000 X. X. Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx XxxXxxxxxxx
Address for mail delivery:
MacTarnahan Limited Partnership
00000 X. X. Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx XxxXxxxxxxx
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