EMPLOYMENT AGREEMENT
AGREEMENT made as of the ______ day of September, 1998, by and
between THE RATTLESNAKE HOLDING COMPANY, INC., a Delaware corporation
(hereinafter referred to as the "Company"), having a place of business at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and XXXXX X. XXXXX, residing at
_____________________ _____________________________________________ (hereinafter
referred to as the "Employee").
WITNESSETH:
In consideration of the mutual covenants herein contained, the
parties hereto agree as follows.
1. Employment.
The Company hereby agrees to employ the Employee, and the
Employee hereby agrees to accept such employment, subject to the terms and
conditions hereinafter set forth.
2. Term.
The term of the Employee's employment hereunder, except if earlier
terminated pursuant to Section 6 hereof, shall be for a period of three (3)
years from the later of (i) September 15, 1998 and (ii) the date on which the
Company completes a private placement conducted for it by Commonwealth
Associates (the "CWA Financing") of non-performing convertible debt or equity
with, provided the Company shall give at least 2 week's prior notice. The term
shall then continue from year to year thereafter unless either party gives
notice to the contrary to the other party not less than 90 days prior to the
commencement of any such one year extension period.
3. Duties.
(a) During the continuance of this Agreement, the Employee agrees to devote
his attention, full time and best efforts to the rendition of his services
hereunder, which shall include such executive responsibilities as may be
assigned to him from time to time by the Board of Directors of the Company, and,
during the term, shall act as Treasurer, Chief Financial Office and a Vice
President. Subject to the control of the Board of Directors, the Employee shall
perform such executive duties as are assigned by the President.
(b) The Employee shall be entitled to make personal investments, provided
that none of the same are directly or indirectly competitive with the business
of the Company and further provided that any such activities do not detract from
the services to be rendered by the Employee hereunder. In addition, during the
first year of the term, the Employee shall be entitled to complete pending
projects for Deloitte & Touche, provided that such efforts do not materially
interfere with his services to the Company, consume not more than 20% of his
time in any week and not more than 10% of his time during the first year of the
term
4. Compensation.
In consideration of all of the services to be rendered by the Employee
hereunder, the Employee shall be paid, and he agrees to accept compensation as
follows:
(a) Compensation during the first year of the term at an annual rate of
Fifty Two Thousand Dollars ($52,000.00) including the value of the benefits set
forth in Section 5, payable at least bi-weekly in arrears less applicable
withholding taxes, subject to such increases, if any, as may be approved by the
Board of Directors of the Company.
(b) Compensation for the second and following years of the term at a rate
equal to that being paid chief financial officers of New York metropolitan area
based restaurant companies of a size similar to the Company. If the parties
cannot agree on compensation for the second year of the term or any following
year, at least 60 days before commencement of the same, either party can submit
the issue to binding arbitration in New York City before one arbitrator under
the rules of the American Arbitration Association, provided each party shall
submit a salary figure to the arbitrator and the arbitrator shall be limited to
determining which figure is closer to the standard set in the first sentence of
this paragraph (b). Each party shall bear its own expenses in the arbitration.
Pending the outcome of the arbitration, the salary amount there in effect shall
remain in effect, subject to retroactive adjustment.
(c) A performance bonus in accordance with the plan annexed hereto as
Exhibit A.
(d) An option, to be set forth in a separate agreement with customary
terms, to purchase up to 300,000 shares of Common Stock of the Company at $0.75
per share, exercisable for a period of five (5) years, which option will vest as
to one-third (1/3) of the number of shares covered thereby at the end of each
one year period during the term.
5. Benefits.
(a) The Employee shall be entitled to such benefits as may be made
available by the Company to its executives, including vacations, sick leave,
medical and life insurance.
(b) Except as hereinafter provided in Section 6 hereof, the Company shall
pay the Employee, for any period during which he is unable fully to perform his
duties because of physical or mental disability or incapacity, an amount equal
to the compensation due him for such period less the aggregate amount of all
income disability benefits which he may receive or to which he may be entitled
under or by reason of (i) any group health or accident insurance plan of the
Company; (ii) any applicable compulsory State disability law; (iii) the Federal
Social Security Act; and (iv) any applicable workmen's compensation law or
similar law.
(c) The employee shall be entitled to reimbursement for expenses reasonably
and necessarily incurred by him in the course of his duties, upon accounting
therefor.
6. Termination.
(a) The term of this Agreement may be ended prior to the date specified in
Section 2, under the following conditions:
(i) Upon the death of the Employee;
(ii) Upon notice to the Employee of any act of fraud, embezzlement,
misappropriation or gross failure to perform duties;
(iii) Thirty (30) days after notice to the Employee of his breach of his
duties hereunder (other than as set forth in (ii) above), unless such breach is
fully remedied before the end of such thirty (30) day period; and
(iv) If the Employee shall be both absent for a period of at least 90 days
continuously or a total of 60 days within any 120 day period, and shall be so
mentally or physically incapacitated or disabled as to be unable to perform his
duties hereunder during such period and at the time of termination.
(b) Upon any termination of this Agreement under Section 6(a), the Company
shall not be obligated to pay any compensation or expenses or provide other
benefits other than those accrued to the date of termination, and the Employee
shall cease to hold all positions in the Company, and such termination shall
constitute a voluntary resignation by the Employee of each office and
directorship then held by him, and the Employee shall, if requested and if able,
deliver to the Company confirmatory written resignations. The Employee shall
also deliver to the Company all property of the Company which may then be in the
Employee's possession.
7. Non-Disclosure of Confidential Information. The Employee acknowledges
that it is the policy of the Company to maintain as secret and confidential all
information relating to its products, services and operations and the identity
of suppliers, franchisees and customers (the "Confidential Information"), and
the Employee further acknowledges that the Confidential Information is of
substantial value to the Company. Accordingly, the Employee agrees that he will
not, during or after the termination of this Agreement, disclose or use any
Confidential Information other than in connection with the business of the
Company.
8. Non-Solicitation. The Employee agrees that for a period of two (2) years
after termination of this Agreement, for any reason, he will not (a) solicit a
business relationship with persons who are franchisees or customers of the
Company on the date of termination which is directly or indirectly competitive
with the business relationship of the Company with such persons, and (b) solicit
the services of persons who are employees of the Company on the date of
termination, or who were employed by the Company at any time within the period
of one year prior to such termination.
9. 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 addresses
set forth herein or such other address of which notice is given in accordance
herewith.
10. 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.
11. Applicable Law. This Agreement shall be subject to and governed by the
laws of the State of New York.
12. Remedies. The Company, in addition to any other remedy or remedies to
which it may be entitled, shall be entitled to obtain injunctive relief against
any breach or threatened breach by the Employee of the provisions of Sections 7,
8 and 9 hereof. In the event of a dispute hereunder, the party prevailing shall
be entitled to recover his or its reasonable expenses, including counsel fees,
from the party no prevailing.
13. Representation of Employee. The Employee hereby represents and warrants
that the Employee is not bound by any contract, agreement, court order or
decision which conflicts in any manner with the duties to be performed by the
Employee hereunder or which would limit, in any respect, the right of the
Employee to use any of the Employee's knowledge or experience in the performance
of the Employee's duties hereunder.
14. Board of Directors. This Agreement is subject to the approval of the
Board of Directors, which must be given, if at all, within 10 days after the
date this Agreement is signed and delivered by the Company.
15. Captions. The underlined captions set forth herein are descriptive
only, and shall not be deemed to be a part of this 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 _____________________________
Authorized Signature
By /s/Xxxxx X. Xxxxx
------------------------------
XXXXX X. XXXXX, Individually
