CONSULTATION AGREEMENT
THIS AGREEMENT is executed and made effective this 1st day
of December, 2007, between Golden West Brewing
Company, a California corporation doing business as Butte Creek
Brewing Company (the "Company"), and Artisan Food and Beverage
Group, Inc. ("Consultant").
WITNESSETH
WHEREAS, the Company desires to retain the services of
Consultant as more fully described below:
NOW THEREFORE, in consideration of the mutual covenants,
agreements and provisions contained in this Agreement, the parties
agree as follows:
1.
Consultation .
The Company hereby retains the services of Consultant, as an
independent contractor, which retention is accepted and agreed to
be performed by Consultant, subject to and upon the terms and
conditions hereinbelow set forth.
2.
Term .
The term of this Agreement shall begin on the day and year first
above written, and, unless earlier terminated by the Company or
Consultant as herein provided, shall terminate on December 31,
2008, and thereafter, if extended or renewed by written agreement
of the parties, upon thirty (30) days' written notice given by
either party to the other. Upon the termination of this
Agreement, the retention and agency, and Consultant's independent
contractor status, shall end, unless a new, separate written
agreement shall have been executed by all parties. In any
event, Sections 8, 12 through 15 shall survive any termination of
this Agreement.
3.
Consultant's Status .
It is understood and agreed that Consultant shall be at all times
and for all purposes hereunder an independent contractor to the
Company and under no circumstances shall be deemed an employee,
partner or joint venturer of or with the Company. Consultant
agrees that he shall not directly or indirectly imply or represent
to others, or permit another to imply or represent to others that
Consultant has any authority to act for, represent or bind the
Company in any matter by virtue of this Agreement. Consultant
expressly agrees to indemnify and hold harmless the Company for any
damages which may be sustained by the Company as a result of or
arising out of any breach of the covenants set forth in this
Section 3.
4.
Services of Consultant .
4.1.
Upon the request of the Company, Consultant shall consult with and
advise the Company with respect to matters concerning:
4.1.1
The development and implementation of the Company’s strategic
growth plan; and
4.1.2
Perform such other services and provide such other assistance as
the Company's CEO or Board of Directors may reasonably request.
4.2
The Company agrees that during the term of this Agreement,
Consultant shall provide 45% of full time equivalent, or 105 work
days per calendar year, of service (“Minimum Service”)
unless the Company requests and the Consultant otherwise
specifically agrees to additional service.
4.3.
In performing hereunder, Consultant may, but need not, use the
facilities or resources of the Company. Consultant shall be
solely and exclusively responsible for determining when, where, how
and by whom the services are to be performed hereunder, subject
only to such matters as may be specifically addressed in written
communications from the Company. Notwithstanding the foregoing,
Consultant agrees that its services shall be performed by Mark
Simpson unless otherwise agreed by the Company.
4.4.
Consultant agrees to exercise its best efforts, skill and diligence
in the performance of its services hereunder and shall perform all
services in a good and workmanlike fashion.
4.5.
Consultant shall keep accurate records showing the quantity and
date of time devoted to the services provided for herein and a
description thereof, and shall present such records to the Company
on request.
5.
Compensation .
5.1.
The Consultant shall be promptly reimbursed for all reasonable and
necessary business expenses incurred by the Consultant in
connection with its rendering of services hereunder to the Company;
provided, however, that such expenses require the prior approval of
the CEO of the Company and provided further that the Consultant
shall only be reimbursed for such expenses as to which it presents
the Company with receipts or other reasonable substantiation
thereof.
5.2.
For the Minimum Service to be rendered by Consultant pursuant to
this Agreement, Consultant shall be paid as compensation the sum of
$4,500 per month. For mutually agreed upon service in excess
of the Minimum Service, Consultant shall be paid a fee of $100 per
hour or $750 per diem, whichever is less, unless otherwise agreed
by the parties. Consultant shall submit invoices on the first day
of each month during the Term setting forth the quantity and date
of all time devoted to services hereunder, which invoices shall be
payable within five (5) business days following their submission.
Any invoice not paid within ten (10) business days following
submission shall bear interest at the rate of one-half percent
(½%) per month on the outstanding balance until paid in
full.
5.3.
The Consultant shall pay all applicable taxes which are assessed
against it as a result of its receipt of compensation under this
Agreement, including, without limitation, all federal and state
income taxes, and the Company shall not withhold any such taxes
from the compensation paid to the Consultant. Consultant
agrees to indemnify and hold harmless the Company, together with
its officers and directors, with respect to any such taxes or other
assessments which may be due and payable as a result of the payment
or receipt of compensation hereunder.
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6.
Scope of Authority and Indemnification .
Consultant acknowledges and agrees that the scope of its authority
hereunder shall be expressly defined and limited herein.
Consultant shall make no statement, warranty or
representation which purports in any way to be on behalf of or
binding upon the Company and hereby acknowledges that it lacks any
authority whatsoever, either express, apparent or implied, to do
so. The Company shall not be bound by or liable for any
statement, warranty or representation made by the Consultant to any
third person or party and consultant, for itself, its officers,
directors, stockholders, agents and employees, hereby agrees to
indemnify and hold harmless the Company for any liability which may
arise or be claimed against the Company by virtue of Consultant's
breach of this Agreement.
7.
Company's Cooperation and Warranties .
For the purpose of this Agreement, the Company agrees that it shall
cooperate fully with any and all reasonable requests of Consultant
and shall provide Consultant with such information concerning the
Company as Consultant may reasonably require in connection with his
services hereunder. The Company warrants and represents to the
Consultant that any information provided by it to Consultant shall
be true and accurate in every material respect and shall not
contain any omissions which, when taken together with information
disclosed, will render such disclosed information inaccurate or
materially misleading.
8.
Indemnification
8.1
The Company shall indemnify and hold Consultant and its
representatives and agents (including his attorneys and advisors)
(together, the "Consultant Indemnified Parties), harmless against
any and all liabilities, claims and lawsuits, including any and all
awards and/or judgments to which they may become subject under the
Securities Act or any other federal or state statute, or at common
law or otherwise, insofar as said liabilities, claims and lawsuits
(including awards and/or judgments) arise out of or are in
connection with this Agreement, except to the extent such
liabilities, claims and lawsuits are due primarily to Consultant's
negligence or misconduct. In addition, the Company shall also
indemnify and hold the Consultant Indemnified Parties harmless
against any and all costs and expenses, including reasonable legal
fees incurred or related to the foregoing.
8.2
Consultant shall indemnify and hold the Company and each of its
officers, directors, employees, representative, agents (including
its attorneys and advisors), sureties, guarantors, and each person
who controls the Company within the meaning of Section 15 of the
Securities and Exchange Act of 1934 (together, the "Company
Indemnified Parties"), harmless against any and all liabilities,
claims and lawsuits, including any and all awards and/or judgments
to which they may become subject under any federal or state
statute, or at common law or otherwise, insofar as said
liabilities, claims and lawsuits (including awards and/or
judgments) arise out of or are in connection with this Agreement,
except to the extent such liabilities, claims and lawsuits are due
primarily to the Company's negligence or misconduct. In
addition, Consultant shall also indemnify and hold the Company
Indemnified Parties harmless against any and all costs and
expenses, including reasonable legal fees incurred or related to
the foregoing.
8.3
Consultant acknowledges and agrees that the scope of its authority
hereunder shall be expressly defined and limited herein.
Consultant shall make no statement, warranty or
representation which purports in any way to be on behalf of or
binding upon the Company and hereby acknowledges that he lacks any
authority whatsoever, either express, apparent or implied, to
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do so. The Company shall not be
bound by or liable for any statement, warranty or representation
made by the Consultant to any third person or party and Consultant,
for itself, its officers, directors, stockholders, agents and
employees, hereby agrees to indemnify and hold harmless the Company
for any liability which may arise or be claimed against the Company
by virtue of Consultant's breach of this Agreement.
8.4
The Company agrees to indemnify and hold harmless Consultant from
any liability which may arise against Consultant which is based
upon any false or materially misleading statement of fact contained
in any financial information or other document provided by the
Company to the C
