CONSULTING AGREEMENT
AGREEMENT made this 1st day of May, 1998, by and between THE RATTLESNAKE
HOLDING COMPANY., INC., a Delaware corporation (the "Company"), having a place
of business at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, SAS VENTURES,
INC, a New York corporation (the "Consultant") with a place of business at 00
Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000, and XXXXXXX X. XXXXX ("Xxxxx"), residing
at 00 Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000.
RECITALS
The Consultant has extensive experience in the areas of restaurant
management and finance. Xxxxx is the principal employee, executive officer and
shareholder of the Consultant.
The Company desires to retain the services of the Consultant, and the
Consultant desires to provide its services, on the terms set forth herein. In
addition, the Company desires the Consultant and Xxxxx to protect certain
proprietary interests of the Company concerning non-disclosure and
non-competition, and the Consultant and Xxxxx desire to do so, on the terms set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties herein, the parties hereto agree as follows:
1. Services of Consultant. The Consultant is hereby engaged as general advisor
and consultant to the Company on the following matters pertaining to the
business of the Company and its subsidiaries; finance, acquisitions, public
relations, strategic planning, SEC reporting and financial statements; and will
provide such advice and consultation as the Company may reasonably request, in
each case consistent with the Consultant's experience and expertise. The
Consultant's employees shall not be required to travel more than 100 miles
without its consent and may consult in person or via telephone or written
report. The Consultant shall provide such time as is necessary for the
performance of its services. The Consultant shall provide Xxxxx'x services to
satisfy performance by the Consultant hereunder. The Consultant shall perform
its services under this Agreement solely as an independent contractor and not as
an agent or employee of the Company or any subsidiary of the Company. The
Company shall not be responsible for the payment of any withholding taxes, FICA,
workers' compensation, insurance, disability benefits or any fringe benefits and
the Consultant is not entitled to any of the same. The only compensation and
benefits to which the Consultant shall be entitled hereunder are as set forth in
Paragraphs 3 and 4 hereof. The Company shall not be responsible for any injury,
loss or damage suffered by Consultant arising out of the performance of its
duties hereunder in a negligent or wrongful manner. In connection with its
services hereunder, the Consultant shall have no right to bind the Company or
any of its subsidiaries.
2. Term. The term (the "Term") for the services described in Paragraph 1
hereof, except if earlier terminated pursuant to Paragraph 5 hereof, shall be
for a period of three (3) years from the date hereof unless extended by the
parties.
3. Payment. The compensation to the Consultant for the services to be
rendered by the Consultant are as follows:
(a) Monthly payments of $7,000.00 on or about the 1st day of each month;
(b) The issuance of 500,000 of common stock of the Company (the fair value
of these shown shall be reported as income of the Consultant and the Consultant
shall be responsible for all taxes payable thereon):
(i) With respect to 250,000 of such shares (the "Protected Shares"), the
following shall apply. The Company combines its common stock then, on the first
such occasion, the Company will issue shares of post-combination common stock to
the Consultant such that the Protected Shares and such post-combination common
stock will total 250,000 shares of post-combination common stock.
(ii) With respect to the other 250,000 of such shares (the "Accrual
Shares"), the following shall apply. In the event that this Agreement is
terminated by the Company under Paragraph 5 hereof on or before September 1999,
then a portion of the Accrual Shares shall be transferred to the Company equal
to 13,888 shares for each month (including the month of termination) from the
termination to September 1999. The above number of shares shall be appropriately
adjusted for stock splits, combinations, recapitalizations and reorganizations.
(c) A payment of $30,000.00 on or before April 15, 1999 related to the
taxes payable by Consultant on account of the income referred to in Paragraph
3(b) hereof.
(d) The issuance of a warrant to purchase common stock of the Company which
may be exercised as follows:
(i) 250,000 shares at $15 per share exercisable immediately, for a period
ending April 30, 2003; and
(ii) 41,667 shares at $.15 per share exercisable from each of the following
dates, (a total of 250,000 shares) provided this Agreement has not theretofore
been terminated under Paragraph 5 hereof: October 1, 1998, January 1, 1999,
April 1, 1999, July 1, 1999, October 1, 1999 and January 1, 2000, for a period
ending April 30, 2003.
4. Expenses. The Consultant shall be entitled to reimbursement for expenses
reasonably incurred by it in the course of its duties hereunder including
cellular phone charges, upon its accounting therefor.
5. Termination of Services.
(a) The Term for the services in Paragraph 1 may be ended prior to the date
specified in Paragraph 2:
(i) If there is a notice to the Consultant by the Company that the
Consultant is in material breach of its obligations hereunder which breach is
not cured within 30 days thereafter, or
(ii) If Xxxxx, due to death, disability or otherwise, fails to render
services on behalf of Consultant, or
(iii) If the Consultant becomes bankrupt or insolvent or ceases its
business.
(b) The Consultant shall deliver to the Company any property of the Company
which may then be in the Consultant's possession upon the end of the Term.
6. Non-Disclosure of Confidential Information. The Consultant and Xxxxx
acknowledge that it is the policy of the Company to maintain as secret and
confidential all information relating to the Company's products and services,
its pricing, practices, plans, programs, software and data, and the identity of
its customers, employees, consultants, agents and representatives (the
"Confidential Information"), and the Consultant and Xxxxx further acknowledge
that the Confidential Information is of substantial value to the Company.
Accordingly, the Consultant and Xxxxx agree that they will not, during or after
the Term, disclose or use any Confidential Information other than in connection
with the business of the Company, and then only as authorized by the Company in
order for the Consultant to perform its services.
7. Non-Competition. For a period of three (3) years from the date hereof or
the Term of this Agreement, if longer, the Consultant and Xxxxx shall not,
directly or indirectly, engage in any business actually competitive with the
business of the Company as conducted the date hereof or during the Term, in each
geographic area where the Company conducts such business. The parties agree that
the duration and scope of the non-competition provisions set forth in this
Paragraph 7 are reasonable. In the event that any court determines that the
duration or the scope, or both, are unreasonable and that such provisions are to
that extent unenforceable, the parties agree that these provisions shall remain
in full force and effect for the greatest time period and in the greatest area
that would not render them unenforceable. The parties agree that damages are an
inadequate remedy for any breach of this provision and the provisions of
Paragraph 6 and that the Company shall, whether or not it is pursuing any
potential remedies at law, be entitled to equitable relief in the form of
preliminary and permanent injunction without bond or other security upon any
actual or threatened breach of such provisions, by the Consultant or Xxxxx.
8. Indemnification. The Consultant covenants and agrees to perform its
services in compliance with all applicable laws, rules and regulations of
governmental agencies and in a manner which does not violate the rights of any
third person, and to timely pay all taxes relating to all compensation
hereunder. The Consultant and Xxxxx shall indemnify and hold harmless the
Company from and against all costs and expenses which the Company may incur,
including by way of example and not limitation, reasonable counsel fees and
disbursements, as a result of the violation by the Consultant and/or Xxxxx of
their covenants and agreements set forth in this Agreement.
(a) Notice. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and shall be deemed given when
delivered to a party or on the first attempted date of delivery after the same
is mailed to a party, certified mail, return receipt requested, to the address
set forth herein or such other address of which notice is given in accordance
herewith.
(b) Representation. The Consultant represents that it is not bound by any
agreement, court order or other obligation which may relate, directly or
indirectly, to its obligations hereunder.
(c) Modification and Waiver. This Agreement may not be changed or
terminated orally but only in a writing signed by the parties hereto, and no
waiver of a breach of any provision hereof shall be effective unless in writing
signed by the party against whom enforcement is sought. No such waiver shall
operate or be construed as a waiver of any subsequent breach of such provisions.
(d) Applicable Law. This Agreement shall be subject to and governed by the
laws of the State of New York.
(e) Controversies. The parties agree that any legal proceedings hereunder
shall be brought only in the courts of the State of New York or the United
States of America, sitting in the City, County and State of New York.
(f) Captions. The underlined captions set forth herein are descriptive
only, and shall not be deemed to be a part of this Agreement.
(g) Counterparts. This Agreement may be executed in counterparts, all of
which shall form one agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE RATTLESNAKE HOLDING
COMPANY, INC.
By:/s/Xxxxxx Xxxxxxxxxxx
--------------------------
Xxxxxx Xxxxxxxxxxx, President
SAS VENTURES, INC.
By:/s/Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx, President
/s/Xxxxxxx X. Xxxxx
---------------------------
XXXXXXX X. XXXXX, Individually
