AGREEMENT made as of the 17th day of February, 1998, by and between THE
RATTLESNAKE HOLDING COMPANY, INC. ("Rattlesnake" or the "Company"), a Delaware
corporation, with having offices c/or Rattlesnake Holding Company, 000 X. 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and XXXXXXX X. XXXXX ("Xxxxx"), an individual
residing at 000 Xxxxx Xxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Xxxxx was heretofore employed, pursuant to an Executive Employment
Agreement dated December 1, 1994, (the "Employment Agreement") as the Chief
Executive Officer of the Company, which employment, upon the mutual agreement of
the parties, has since been terminated; and
WHEREAS, Xxxxx, subsequent to the termination of his employment agreement,
continued to serve on the Board of Directors of
the Company; and
WHEREAS, Xxxxx desires to resign from the Board of Directors of the Company
and Rattlesnake desires to accept such resignation, and settle any and all
obligations owing by the Company to Xxxxx on the terms set forth below.
NOW, THEREFORE, in consideration of the agreements and covenants herein set
froth, the parties hereby agree as follows:
1. Subject to the terms and conditions set forth below, Xxxxx hereby agrees
to resign from the Company's Board of Directors effective as of the date first
set forth above by executing and delivering the resignation set forth as Exhibit
I hereto.
2. In settlement of any and all reimbursement for expenses due to Xxxxx,
Rattlesnake agrees to pay to Xxxxx or on Xxxxx'x behalf, as the case may be, the
following amounts on the terms set forth below.
(a) A cash payment on the execution hereof equal to two (2) weeks of
Xxxxx'x base salary under the Employment Agreement in full satisfaction of any
amounts owing to Xxxxx for accrued and unused vacation;
(b) An amount equal to the cost for a period of six (6) months subsequent
to the execution hereof of medical, dental, disability and life insurance
currently provided to Xxxxx to be paid directly to the insurer on behalf of
Xxxxx by Rattlesnake in payment of Xxxxx'x COBRA payments for such period. The
Company represents and warrants that since the termination of Xxxxx'x
employment, the Company has made all such COBRA payments on Xxxxx'x behalf on a
timely basis.
3. All of Xxxxx'x employee stock options shall be cancelled and
simultaneously therewith, the Company shall issue to Xxxxx 150,000 non-qualified
employee stock options to purchase 150,000 shares of the Company's common stock
at an exercise price of seventeen ((cent).17) cents per share. All such options
shall be fully vested upon issuance and shall have a term of three (3) years
from the date hereof, and be exercisable in whole or in part at any time and
from time to time, and shall have piggyback registration rights with respect to
all registration statements filed by the Company subsequent to the execution
hereof.
4. Rattlesnake will indemnify and hold Xxxxx harmless from any and all
claims, liabilities, expenses or responsibilities arising out of the actions
commenced by Xxxxx Xxxx and Washington ___ Preservation III, Inc., including
costs of collection and reasonable attorneys' fees; provided, however, that
Xxxxx shall not engage independent counsel unless the Company consents to same
or the representation of Xxxxx in the matter for which Xxxxx intends to engage
counsel would constitute a conflict of interest if Xxxxx was represented by
counsel engaged in the Company.
5. Rattlesnake shall cause to have Xxxxx continue to be covered under the
Company's directors and officers' liability insurance and shall further have
Xxxxx insured under what it commonly knows as a "tail" insurance for any claims
against Xxxxx while Xxxxx was an officer or a director of Rattlesnake or any
subsidiary of Rattlesnake.
6. This Agreement is the entire agreement and supercedes any previous
agreement, understandings or representations between Xxxxx and Rattlesnake with
respect to the subject matter hereof. This Agreement may not be modified in any
respect except by a written agreement signed by both parties.
7. The provisions of this Agreement shall be binding upon the parties and
their respective agents, employees, directors, officers, shareholders, heirs,
executors, administrators, legal representatives, successors and assigns.
8. In the event this Agreement, or any portion thereof, is held invalid,
illegal or unenforceable, the validity, legality or enforceability of the
remainder of this Agreement shall not in any way be effected or impaired
thereby.
9. This Agreement shall not be transferred or assigned without the written
consent of both parties.
10. All notices and other communications permitted or required under this
Agreement shall be in writing and shall be sufficiently given if and when hand
delivered to the persons set forth below, or if sent by registered or certified
mail, postage prepaid, return receipt requested, or by facsimile transmission,
addressed as set forth below or to such other person or persons and/or at such
other address or addresses as shall be furnished in writing by any party to the
other or by personal delivery thereof. Any such notice or communication which is
mailed or faxed shall be deemed to have been given as of the date received or
delivery was attempted, as evidenced as of the date received with respect to a
letter or the official notation of time and date of delivery of a facsimile.
If to Xxxxx:
000 Xxxxx Xxxx Xxxx
Xxxxxx, XX 00000
with a copy simultaneously by like means to:
Xxxxxxxx Xxxx & Brandeis, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
If to Rattlesnake:
Rattlesnake Holding Company, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy simultaneously by like means to:
Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxx & Xxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: X. Xxxxx Graffney
11. Notwithstanding anything set forth hereunder to the contrary, Articles
V and VI of the Employment Agreement shall be deemed to remain in full force and
effect, and Xxxxx shall be deemed to have voluntarily resigned for purposes of
such Article VI.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
THE RATTLESNAKE HOLDING COMPANY, INC.
By:/s/ Xxxxx X. Xxxxxxx
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Co-Chief Executive Officer
/s/Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
