UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)*
The Rattlesnake Holding Company, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.001 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
753904104
-----------------------------------------------------------------------
(CUSIP Number)
Bruce Glaser, 830 Third Avenue, Fourth Floor, New York, NY 10022 (212) 829-5800
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
April 6, 1999
-----------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
(Continued on the following page(s))
Page 1 of 26 Pages
<PAGE>
- -------------------- ------------------
CUSIP No. 719569-949 SCHEDULE 13D Page 2 of 26 Pages
- -------------------- ------------------
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Commonwealth Associates, L.P.
13-3467952
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES
BENEFICIALLY --------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 14,937,173
PERSON --------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
14,937,173
--------------------------------------------------------
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,937,173
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
36.3%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
- -------------------- ------------------
CUSIP No. 719569-949 SCHEDULE 13D Page 3 of 26 Pages
- -------------------- ------------------
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Commonwealth Associates Management Corp.
13-3468747
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES
BENEFICIALLY --------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 14,937,173
PERSON --------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
14,937,173
--------------------------------------------------------
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,937,173
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
36.3%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
- -------------------- ------------------
CUSIP No. 719569-949 SCHEDULE 13D Page 4 of 26 Pages
- -------------------- ------------------
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Michael S. Falk
###-##-####
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 2,194,457
BENEFICIALLY --------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 14,937,173
PERSON --------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
2,194,457
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
14,937,173
--------------------------------------------------------
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,131,630
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.5%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
- -------------------- ------------------
CUSIP No. 719569-949 SCHEDULE 13D Page 5 of 26 Pages
- -------------------- ------------------
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Robert Priddy
###-##-####
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 2,523,309
BENEFICIALLY --------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 14,937,173
PERSON --------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
2,523,309
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
14,937,173
--------------------------------------------------------
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,460,482
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.9%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
- -------------------- ------------------
CUSIP No. 719569-949 SCHEDULE 13D Page 6 of 26 Pages
- -------------------- ------------------
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Keith Rosenbloom
###-##-####
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 523,906
BENEFICIALLY --------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 14,937,173
PERSON --------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
523,906
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
14,937,173
--------------------------------------------------------
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,461,079
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
37.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
- -------------------- ------------------
CUSIP No. 719569-949 SCHEDULE 13D Page 7 of 26 Pages
- -------------------- ------------------
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Basil Ascuitto
###-##-####
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 328,104
BENEFICIALLY --------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 14,937,173
PERSON --------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
328,104
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
14,937,173
--------------------------------------------------------
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,265,277
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
36.8%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
- -------------------- ------------------
CUSIP No. 719569-949 SCHEDULE 13D Page 8 of 26 Pages
- -------------------- ------------------
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Robert Beuret
###-##-####
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 1,727,334
BENEFICIALLY --------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 14,937,173
PERSON --------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
1,727,334
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
14,937,173
--------------------------------------------------------
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
16,664,507
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
38.8%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 9 of 26 Pages
Item 1. Security and Issuer.
This statement relates to the common stock, par value $.01 per share
("Common Stock"), of The Rattlesnake Holding Company, Inc. (the
"Company"). The address of the Company's principal executive office is 2
South Main Street, South Norwalk, Connecticut 06854.
The shares of Common Stock that are the subject of this statement either
(A) were issued (i) in a private placement completed in June 1998 (the
"Bridge Financing"); (ii) in connection with a merger and acquisition
advisory agreement (the Advisory Shares"); or (ii) in connection with an
amendment to a financial consulting agreement (the "Consulting Shares");
or (B) are issuable (i) upon exercise of five-year $.05 warrants (the
"Agent's Bridge Warrants") issued as placement agent compensation in
connection with the Bridge Financing; (ii) upon exercise of five-year $.05
warrants subsequently issued to investors in the Bridge Financing; (iii)
upon conversion of shares of the Company's convertible preferred stock
(the "Preferred Shares") issued in a private placement completed in May
1999 (the "Preferred Offering") at a conversion rate of $.20 per share;
(iv) upon exercise of five-year $.25 warrants issued to investors in the
Preferred Offering; or (v) upon exercise of five-year $.05 warrants (the
"Agent's Preferred Warrants") issued as placement agent compensation in
connection with the Preferred Offering.
Item 2. Identity and Background.
This statement is filed jointly by Commonwealth Associates L.P.
("Commonwealth"), a limited partnership organized under the laws of New
York, whose principal business is investment banking and advisory
services, Commonwealth Associates Management Corp., the corporate general
partner of Commonwealth ( "CAMC"), Michael S. Falk, the Chairman and
controlling equity owner CAMC, Keith Rosenbloom, Basil Ascuitto and Robert
Beuret, employees, directors and shareholders of CAMC, and Robert Priddy,
a director and shareholder of CAMC (the "Reporting Persons").
The officers of CAMC (the "CMAC Officers"), all of whom are U.S. citizens,
are :
Michael Falk Chief Executive Officer
Bruce Glaser Chief Administrative Officer
Joseph Wynne Chief Financial Officer
Basil Ascuitto Chief Operating Officer
The business address for all of the Reporting Persons other than Mr.
Priddy is 830 Third Avenue, 4th Floor, New York, New York 10022. Mr.
Priddy is a principal of RMC Capital, 1640 Powers Ferry, Suite 125,
Marietta, Georgia 30067, an investment firm.
During the past five years, none of the Reporting Persons or CAMC Officers
has been convicted in a criminal proceeding or been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding, was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting
<PAGE>
Page 10 of 26 Pages
or mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Commonwealth acquired the Agent's Bridge Warrants and the Agent's
Preferred Warrants for a nominal purchase price with funds provided from
working capital. In no case were any funds borrowed. The Agent's Bridge
Warrants and Agent's Preferred Warrants were distributed by Commonwealth
among its employees, including the Reporting Persons (other than Mr.
Priddy). The Reporting Persons currently hold an aggregate of 491,459
Agent's Bridge Warrants and 14,218,396 Agent's Preferred Warrants.
Mr. Falk, Mr. Priddy, Mr. Rosenbloom and Mr. Ascuitto purchased an
aggregate of 1,200,000 shares of Common Stock as investors in the Bridge
Financing for an aggregate purchase price of $180,000, which amount was
provided by such individuals from personal funds. In no case were any
funds borrowed. Such individuals subsequently received an aggregate of
1,043,270 Bridge Warrants for no additional cash consideration.
Commonwealth acquired the Advisory Shares as compensation for advisory
services rendered to the Company. Commonwealth received the Consulting
Shares pursuant to a two-year consulting agreement which originally
provided for cash compensation in the aggregate amount of $96,000 but was
subsequently converted into equity at the rate of $.05 per share.
Mr. Falk and Mr. Priddy purchased Preferred Shares (convertible into an
aggregate of 1,250,000 shares of Common Stock) as investors in the
Preferred Offering for an aggregate purchase price of $250,000, which
amount was provided from their personal funds. In no case were any funds
borrowed.
Item 4. Purpose of Transaction.
The Agent's Bridge Warrants, the Agent's Preferred Warrants, the Advisory
Shares and the Consulting Shares were acquired by the Reporting Persons as
compensation for services rendered to the Company solely for investment
purposes and not for the purpose of acquiring control of the Company. The
Bridge Warrants, the Preferred Shares and the Preferred Warrants were
acquired to make a profitable investment.
The Agency Agreement entered into in connection with the Preferred
Offering gives Commonwealth the right to appoint a non-voting observer to
the Company's Board of Directors while the Preferred Shares are
outstanding.
Other than as set forth above, the Reporting Persons have no present plans
or proposals which relate to, or could result in, any of the matters
referred to in paragraphs (a) through (j), inclusive, of Item 4 of
Schedule 13D. The Reporting Persons may, at any time and from time to
time, review or reconsider their position and formulate plans or proposals
with respect thereto, but have no present intention of doing so.
<PAGE>
Page 11 of 26 Pages
Item 5. Interest in Securities of the Issuer.
For purposes of this Report, the Reporting Persons are deemed to
beneficially own the shares of Common Stock issuable upon conversion of
the Preferred Shares, even though the Preferred Shares cannot be
converted until November 1999, more than 60 days from the date hereof.
(a)(1) Commonwealth is the beneficial owner of an aggregate of 14,937,173
shares of Common Stock, representing approximately 36.3% of the issued
and outstanding shares of Common Stock of the Company. Commonwealth's
holdings include the right to acquire (i) 354,375 shares issuable upon
exercise of Agent's Bridge Warrants, and (ii) 10,864,140 shares issuable
upon exercise of Agent's Preferred Warrants.
(a)(2) Mr. Falk is the beneficial owner of an aggregate of 17,131,630 shares of
Common Stock, representing approximately 39.5% of the issued and
outstanding shares of Common Stock of the Company. In addition to
Commonwealth's 14,937,173 shares, Mr. Falk's holdings include the right
to acquire (i) 250,000 shares issuable upon conversion of Preferred
Shares, (ii) 12,929 shares issuable upon exercise of Agent's Bridge
Warrants, (iii) 303,214 shares issuable upon exercise of Bridge
Warrants, (iv) 62,500 shares issuable upon exercise of Preferred
Warrants, and (v) 1,232,481 shares issuable upon exercise of Agent's
Preferred Warrants. In his capacity as Chairman and controlling equity
owner of CAMC, Mr. Falk shares voting and dispositive power with respect
to the securities beneficially owned by Commonwealth and may be deemed
to be the beneficial owner of such securities.
(a)(3) Mr. Priddy is the beneficial owner of an aggregate of 2,523,309 shares
of Common Stock, representing approximately 7.8% of the issued and
outstanding shares of Common Stock of the Company. Mr. Priddy's holdings
include the right to acquire (i) 1,000,000 shares issuable upon
conversion of Preferred Shares, (ii) 250,000 shares issuable upon
exercise of Preferred Warrants, and (iii) 606,642 shares issuable upon
exercise of Bridge Warrants. In his capacity as a director and equity
owner of CAMC, Mr. Priddy shares indirect voting and dispositive power
with respect to Commonwealth's 14,937,173 shares and may be deemed to be
the beneficial owner of such securities, although Mr. Priddy disclaims
beneficial interest in such shares other than that portion which
corresponds with his equity ownership in CAMC.
(a)(4) Mr. Rosenbloom is the beneficial owner of an aggregate of 523,906 shares
of Common Stock, representing approximately 1.7% of the issued and
outstanding shares of Common Stock of the Company. Mr. Rosenbloom's
holdings include the right to acquire (i) 3,694 shares issuable upon
exercise of Agent's Bridge Warrants, (ii) 60,643 shares issuable upon
exercise of Bridge Warrants, and (iii) 392,902 shares issuable upon
exercise of Agent's Preferred Warrants. In his capacity as a director
and equity owner of CAMC, Mr. Rosenbloom shares indirect voting and
dispositive power with respect to Commonwealth's 14,937,173 shares and
may be deemed to be the beneficial owner of such securities, although
Mr. Rosenbloom disclaims beneficial interest in such shares other than
that portion which corresponds with his equity ownership in CAMC.
<PAGE>
Page 12 of 26 Pages
(a)(5) Mr. Ascuitto is the beneficial owner of an aggregate of 328,104 shares
of Common Stock, representing approximately 1.1% of the issued and
outstanding shares of Common Stock of the Company. Mr. Ascuitto's
holdings include the right to acquire (i) 10,040 shares issuable upon
exercise of Agent's Bridge Warrants, (ii) 72,771 shares issuable upon
exercise of Bridge Warrants, and (iii) 111,960 shares issuable upon
exercise of Agent's Preferred Warrants. In his capacity as a director of
CAMC, Mr. Ascuitto shares voting and dispositive power with respect to
Commonwealth's 14,937,173 shares and may be deemed to be the beneficial
owner of such securities, although Mr. Ascuitto disclaims beneficial
interest in such shares other than that portion which corresponds with
his equity ownership in CAMC.
(a)(6) Mr. Beuret is the beneficial owner of an aggregate of 1,727,334 shares
of Common Stock, representing 5.5% of the issued and outstanding shares
of Common Stock of the Company. Mr. Beuret's holdings include the right
to acquire (i) 110,421 shares issuable upon exercise of Agent's Bridge
Warrants and (ii) 1,616,913 shares issuable upon exercise of Agent's
Preferred Warrants. In his capacity as a director of CAMC, Mr. Beuret
shares voting and dispositive power with respect to Commonwealth's
14,937,173 shares and may be deemed to be the beneficial owner of such
securities, although Mr. Beuret disclaims beneficial interest in such
shares other than that portion which corresponds with his equity
ownership in CAMC.
(b) Number of shares as to which each such person has:
(1) sole power to vote or to direct the vote:
(i) Mr. Falk has the sole power to vote or to direct the vote of his
2,194,457 shares.
(ii) Mr. Priddy has the sole power to vote or to direct the vote of his
2,523,309 shares.
(iii) Mr. Rosenbloom has the sole power to vote or to direct the vote of
his 523,906 shares.
(iv) Mr. Ascuitto has the sole power to vote or to direct the vote of
his 328,104 shares.
(v) Mr. Beuret has the sole power to vote or to direct the vote of his
1,727,334 shares.
(2) shared power to vote or to direct the vote:
Commonwealth, CAMC, Michael Falk, Robert Priddy, Keith Rosenbloom, Basil
Ascuitto and Robert Beuret share the power to vote or to direct the vote
of Commonwealth's 14,937,173 shares.
(3) sole power to dispose or to direct the disposition of:
(i) Mr. Falk has the sole power to dispose or to direct the
disposition of his 2,194,457 shares.
(ii) Mr. Priddy has the sole power to dispose or to direct the
disposition of his 2,523,309 shares.
(iii) Mr. Rosenbloom has the sole power to dispose or to direct the
disposition of his 523,906 shares.
<PAGE>
Page 13 of 26 Pages
(iv) Mr. Ascuitto has the sole power to dispose or to direct the
disposition of his 328,104 shares.
(v) Mr. Beuret has the sole power to dispose or to direct the
disposition of his 1,727,334 shares.
(4) shared power to dispose of or to direct the disposition of:
Commonwealth, CAMC, Michael Falk, Robert Priddy, Keith Rosenbloom, Basil
Ascuitto and Robert Beuret share the power to dispose or to direct the
disposition of Commonwealth's 14,937,173 shares.
(c) Inapplicable
(d) Inapplicable
(e) Inapplicable
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
Inapplicable
Item 7. Materials to be Filed as Exhibits.
(1) Agency Agreement dated as of October 1998 between Commonwealth and
the Company
(2) Joint Statement on Schedule 13D, as required by Rule 13d-1(f)(1)
under the Exchange Act
<PAGE>
Page 14 of 26 Pages
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Dated: June 23, 1999 Commonwealth Associates L.P.
New York, New York
By: Commonwealth Associates Management Corp.,
its general partner
By: /s/ Joseph Wynne
-----------------------------------------
Joseph Wynne
Chief Financial Officer
Dated: June 23, 1999 /s/ Michael S. Falk
New York, New York ---------------------------------------------
Michael S. Falk
Dated: June 23, 1999 /s/ Robert Priddy
Marietta, Georgia ---------------------------------------------
Robert Priddy
Dated: June 23, 1999 /s/ Keith Rosenbloom
New York, New York ---------------------------------------------
Keith Rosenbloom
Dated: June 23, 1999 /s/ Basil Ascuitto
New York, New York ---------------------------------------------
Basil Ascuitto
Dated: June 23, 1999 /s/ Robert Beuret
New York, New York ---------------------------------------------
Robert Beuret
Page 15 of 26 Pages
Exhibit 1
PLACEMENT AGENCY AGREEMENT
As of October , 1998
Commonwealth Associates
830 Third Avenue, 4th Fl.
New York, New York 10022
Gentlemen:
THE RATTLESNAKE HOLDING COMPANY, INC., a Delaware corporation (the
"Company"), proposes to offer for sale (the "Offering"), in a private placement
to accredited investors only shares of Series B Preferred Stock, par value $.01
per share ("Convertible Preferred Stock"). The purchase price at which each such
Share will be offered and sold in the Offering is $25.00.
In connection therewith, the Company would like COMMONWEALTH ASSOCIATES
(the "Placement Agent") to act as its Placement Agent upon the following terms
and conditions:
1. Appointment of Placement Agent.
Subject to the terms hereof, the Company hereby appoints Commonwealth
Associates as its exclusive Placement Agent during the Offering Period (as
defined below) for the purpose of assisting the Company in finding qualified
accredited investors ("Subscribers") to purchase the Units pursuant to the
Offering, and Commonwealth Associates hereby accepts such agency. The Placement
Agent's agency hereunder is not terminable by the Company, except upon
termination of the Offering.
2. Offering of Preferred Stock by Placement Agent.
(a) Minimum; Maximum. The Shares will be offered for $25.00 per share on a
best efforts, $4,800,000 minimum (for 192,000 Shares), $5,800,000 maximum (for
232,000 Shares) basis. Accordingly, it is a condition of the Offering that the
aggregate purchase price of which is at least $4,800,000, are sold pursuant to
the Offering. In addition, the Placement Agent has an over-allotment option
equal to 116,000 Shares which it may sell to investors (for an additional
$1,250,000).
(b) Private Placement. The Shares are being offered, pursuant to a
Confidential Private Placement Memorandum dated October 27, 1998 and a
Supplement thereto dated January 8, 1999 and related documents, to an unlimited
number of accredited investors in accordance with Section 4(2) of the Securities
Act of 1933, as amended (the "Act") and Regulation D promulgated thereunder. The
Confidential Private Placement Memorandum and the exhibits and Attachments,
<PAGE>
Page 16 of 26 Pages
which are part of the Confidential Private Placement Memorandum, including the
Subscription Agreement, Investor Rights Agreement, Stock Purchase Agreement and
the Purchaser Questionnaire are, together with the Supplement, referred to
herein, collectively, as the "Memorandum."
(c) Offering Period. The Offering Period shall commence on the date of the
Memorandum and shall terminate on December 27, 1998; provided, however, that
such period may be extended by the Placement Agent to February 27, 1999 (as so
extended, the "Offering Period").
(d) Subscription Procedures. Each prospective Subscriber shall be required
to (i) complete and execute the Stock Purchase Agreement, the Subscription
Agreement, the Investor Rights Agreement and the appropriate Purchaser
Questionnaire; and (ii) concurrently either effectuate a wire transfer in the
subscription amount to the escrow account (the "Escrow Account") at United
States Trust Company of New York, or deliver to the Placement Agent a check in
the subscription amount made payable to United States Trust Company of New York,
as escrow agent for the Company. All checks delivered to the Placement Agent
shall be deposited no later than noon on the business day next following their
receipt by the Placement Agent, directly with United States Trust Company of New
York, as escrow agent (the "Escrow Agent"). The Placement Agent shall transmit
the prospective Subscriber's completed and executed Stock Purchase Agreement,
Subscription Agreement and Purchaser Questionnaire, to the Company by the end of
the second business day following the Placement Agent's receipt of same. All
funds wired or otherwise delivered to the Escrow Agent shall be held in the
Escrow Account pursuant to the terms of the Escrow Agreement among the Company,
the Placement Agent, and the Escrow Agent, pending the closing of the Offering
in accordance with the provisions of Section 3.
(e) Minimum Investment. The minimum investment per Subscriber (unless the
Placement Agent and the Company shall agree otherwise) shall be $100,000.
3. Closing.
(a) Closing. The first Closing shall take place on a date no more than
five business days following the receipt by the Escrow Agent of cleared funds in
payment of subscriptions in a minimum aggregate amount of $4,800,000. After the
initial Closing one or more additional closings (each a "Closing," and, together
with the initial Closing, the "Closings") may take place. Each such Closing
shall take place at the offices of the Placement Agent or its counsel. At each
Closing: (i) payment for the Shares issued and sold by the Company shall be made
against delivery of such Shares; (ii) The Escrow Agent shall deliver to the
Company an amount equal to all of such proceeds, after deducting all cash fees
and expense allowances to which the Placement Agent (and its counsel) is
currently or may become entitled pursuant to Section 4 of this Agreement; and
(iii) the Escrow Agent shall deliver to the Placement Agency (and its counsel)
an amount equal to all cash fees and expense allowances to which the Placement
Agent (or such counsel) is currently entitled. The Company and the Placement
Agent shall deliver to the Escrow Agent joint written instructions as to all
such amounts.
(b) Procedures at Closing. At each Closing:
<PAGE>
Page 17 of 26 Pages
(i) The Placement Agent on behalf of the Subscribers shall receive the
opinion of Ruskin, Moscou, Evans & Faltischek, P.C., dated as of such Closing,
substantially in the form of Exhibit A attached hereto.
(ii) The Placement Agent shall receive a certificate of the Company,
signed by the President and Secretary thereof, that the representations and
warranties contained in Section 5 hereof are true and accurate in all material
respects at such Closing with the same effect as though expressly made at such
Closing.
(iii) There shall be delivered on behalf of each Subscriber one copy of
the Stock Purchase Agreement, Subscription Agreement, Purchaser Questionnaire,
and Investor Rights Agreement, signed by such Subscriber, appropriately
countersigned by the Company.
(c) Conditions to Placement Agent's Obligations. The obligations of the
Placement Agent hereunder will be subject to the accuracy of the representations
and warranties of the Company contained herein or in the Stock Purchase
Agreements as of the date hereof in all material respects and as of each Closing
Date, to the performance in all material respects by the Company of its
obligations hereunder and thereunder, and to the following additional
conditions:
(i) Due Qualification or Exemption. (A) The Offering contemplated by
this Agreement will become qualified or be exempt from qualification under
applicable state securities laws not later than the Closing Date, and (b) at the
Closing Date no stop order suspending the sale of the shares shall have been
issued, and no proceeding for that purpose shall have been initiated or
threatened;
(ii) No Material Misstatements. Neither the Blue Sky qualification
materials nor the Memorandum, nor any supplement thereto, will contain an untrue
statement of a fact which in the opinion of the Placement Agent is material, or
omits to state a fact, which in the opinion of the Placement Agent is material
and is required to be stated therein, or it necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(iii) Compliance with Agreements. The Company will have complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder or under the Stock Purchase Agreements in all material
respects at or prior to each Closing;
(iv) Corporate Action. The Company will have taken all necessary
corporate action, including, without limitation, obtaining the approval of the
Company's board of directors, for the execution and delivery of this Agreement,
the performance by the Company of its obligations hereunder and the offering
contemplated hereby;
(v) Opinion of Counsel. The Placement Agent shall receive the
opinion referred to in (b)(i) above in all respects reasonably satisfactory to
it and its counsel;
(vi) Officers' Certificate. The Placement Agent shall receive the
certificate referred to in (b)(ii) above;
<PAGE>
Page 18 of 26 Pages
(vii) Fund Escrow Agreement. The Placement Agent shall receive a
copy of a duly executed agreement in the form previously delivered to it
regarding the deposit of funds pending the Closing(s) with United States Trust
Company (the "Fund Escrow Agreement");
(viii) No Adverse Changes. There shall not have occurred, at any
time prior to the Initial Closing or, if applicable, any additional Closing, (i)
any domestic or international event, act or occurrence which has materially
disrupted, or in the Placement Agent's opinion will in the immediately future
materially disrupt, the securities markets; (ii) a general suspension of, or a
general limitation on prices for, trading in securities on the New York Stock
Exchange or the American Stock Exchange or in the over-the-counter market; (iii)
any outbreak of major hostilities or other national or international calamity;
(iv) any banking moratorium declared by a state or federal authority; (v) any
moratorium declared in foreign exchange trading by major international banks or
other persons; (vi) any material interruption in the mail service or other means
of communication within the United States; (vii) any material adverse change in
the business, properties, assets, results of operations, or financial condition
of the Company; or (viii) any change in the market for securities in general or
in political, financial, or economic conditions which, in the Placement Agent's
reasonable judgment, makes it inadvisable to proceed with the offering, sale,
and delivery of the Shares.
4. Expenses and Compensation.
(a) Expenses. The Company will pay all expenses incurred in connection
with the transactions contemplated hereby including, but not limited to: the
preparation, printing and transmittal to potential investors of the Memorandum,
Blue Sky memoranda, the Stock Purchase Agreement, and the Placement Agent's
warrants (referred to below), and all other documents and instruments required
in connection with such transactions; all accounting, legal and other costs
involved with such transactions (including, but not limited to, legal fees to
the Placement Agent's counsel for the Offering not to exceed $40,000, plus
disbursements); and all mailing, telephone, telegraph, travel, due diligence and
other similar expenses incurred by the Placement Agent; provided, however, that
if there are more than two Closings, the Company will pay such counsel $2,500
per additional closing. In addition, the Company will be responsible for all
out-of-pocket Blue Sky filing fees and disbursements, and counsel fees, in an
amount not to exceed $30,000, with respect to Blue Sky qualification to the
Placement Agent's counsel.
(b) Termination. In the event the Offering is not consummated for any
reason whatsoever, and regardless of which party elects to terminate, then, the
Company shall be liable for all of the Placement Agent's actual out-of-pocket
expenses incurred in connection with the Offering (including legal fees in an
amount not to exceed $30,000) and the Company will pay reasonable Blue Sky
counsel fees as billed, up to a maximum of $25,000, net of any amounts
previously paid for such matters; provided, however, that, (i) if the minimum
shall have been obtained and the Company shall nevertheless fail or refuse to
consummate the transaction, then, Commonwealth shall be entitled to all
compensation to which it would be entitled under paragraph (c); and (ii) if the
minimum shall not have been obtained but the Company shall, without any material
breach on the part of Commonwealth, nevertheless fail or refuse to consummate
the transaction,then, Commonwealth shall be entitled to all such expenses plus
$150,000.
<PAGE>
Page 19 of 26 Pages
(c) Compensation. The Placement Agent shall be entitled to the following
compensation with respect to each Closing (including the final Closing): (i) a
cash fee equal to nine percent (9%) of the gross proceeds of the Shares sold at
such Closing (including, but not limited to, Shares purchased by the
cancellation of debt); (ii) a structuring fee equal to three percent (3%) of
such gross proceeds; and (iii) Warrants to purchase that number of shares of
Common Stock as shall be equal to 20% of the number of shares of Common Stock
into which the shares of Convertible Preferred Stock sold at such Closing are or
may be convertible. The Warrants shall be exercisable for a period of four years
commencing one year after issuance at a price per share equal to the conversion
price of the Convertible Preferred Stock (as it may be adjusted from time to
time). Customary restrictions and anti-dilution provisions (other than price
anti-dilution) shall apply. In addition, at the final Closing the Placement
Agent shall be entitled to receive 3,840 shares of Convertible Preferred Stock
(in payment of the Placement Agent's fees for advisory services under a separate
agreement between the parties.
(d) Credit. The Company shall be entitled to a credit against all amounts
payable under this Section 4 for any amounts previously paid by it.
5. Representations and Warranties of the Company.
The Company represents and warrants as follows:
(a) This Agreement has been duly executed by the Company and is valid and
binding upon the Company and is enforceable (subject to the limitations of
equity jurisdiction and the restrictions of bankruptcy law) in accordance with
its terms.
(b) All of the representations and warranties of the Company contained in
the Stock Purchase Agreements (which are incorporated herein by reference) are
true and correct in all material respects and the Company will duly observe and
perform all affirmative and negative covenants contained in the Stock Purchase
Agreements.
6. Covenants of the Company.
The Company covenants and agrees as follows:
(a) Memorandum Supplement. Until the Offering has been completed or
terminated, if there shall occur any event relating to or affecting, among other
things, the Company or any affiliate, or the proposed operations of the Company
as described in the Memorandum, as a result of which it is necessary, in the
opinion of counsel for the Placement Agent or counsel for the Company, to amend
or supplement the Memorandum in order that the Memorandum will not contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, the Company shall immediately prepare and
furnish to the Placement Agent a reasonable number of copies of an appropriate
amendment of or supplement to the Memorandum, in form and substance satisfactory
to counsel for the Placement Agent.
<PAGE>
Page 20 of 26 Pages
(b) Compliance with Regulation D. Neither the Company nor any of its
affiliates nor any person acting on behalf of, or as agent for, the foregoing,
shall take any action in connection with the Offering which would cause the
Offering not to comply with Rule 505 of Regulation D.
(c) Integration. Neither the Company nor any of its affiliates nor any
person acting on behalf of, or as agent for, the foregoing, shall participate,
directly or indirectly, in any offering of securities between the date of the
Agreement and six months after the last sale of the Shares in the Offering which
would be combined or integrated with the Offering for purposes of Rule 502(c) of
Regulation D, so a to render the exemption provided by Regulation D unavailable
with respect to the Offering.
(d) Accredited Investors. The Company shall not accept a subscription for
the shares of Convertible Preferred Stock from any prospective Subscriber (i) if
the Company has reason to believe that material information supplied or the
representations and warranties made by that person are not fully accurate; or
(ii) unless immediately prior to making such sale, the Company reasonably
believes that such person is an "accredited investor," as defined in Regulation
D.
(e) Securities Filings. The Company shall duly and timely file, with
respect to the Offering (i) all required reports on Form D with the Securities
and Exchange Commission; and (ii) all reports required to be filed under
applicable state securities or Blue Sky laws and regulations and by the
regulatory agencies charged with the enforcement thereof as determined by the
Placement Agent's counsel. The Company shall furnish to the Placement Agent as
soon as the same shall be filed copies of all such filings by the Company with
respect to the Offering. The Company shall also duly and timely file all
required reports under the Securities Exchange Act of 1934 and the rules
thereunder with the Securities and Exchange Commission. Without limiting the
generality of the foregoing, the report on form 10-K for the year ended June 28,
1998 will be filed within 60 days after the initial Closing.
(f) Blue Sky. The Company shall use its best efforts to qualify the shares
of Convertible Preferred Stock for sale under the securities or Blue Sky laws in
such jurisdictions as the Placement Agent may reasonably designate and shall
make such applications and furnish such information to counsel for the Placement
Agent as may be required for that purpose and to comply with such laws;
provided, however, that the Company shall not be required to qualify as a
foreign corporation or a dealer in securities or to execute a general consent to
service of process in any jurisdiction in any action other than one arising out
of the Offering. The Company shall prepare and file such statements and reports
as are or may be required to continue such qualification for so long a period as
the Placement Agent may reasonably request.
(g) Stop Orders. The Company shall notify the Placement Agent immediately
upon receipt of any stop order issued by the Securities and Exchange Commission
or any state securities administrator suspending the effectiveness of any
qualification of the shares of Convertible Preferred Stock for sale or enjoining
the sale of such shares or of the initiation of any proceeding for that
purposes. The Company shall use its best efforts to prevent the issuance of any
stop order and, if any stop order shall be issued, to obtain the lifting of the
stop order at the earliest possible time.
<PAGE>
Page 21 of 26 Pages
(h) Use of Proceeds. All of the net proceeds of the Offering shall be used
substantially in accordance with the Memorandum.
(i) Designation of Observer. So long as any of the Shares are outstanding,
the Placement Agent shall have the right to designate an observer to the Board.
(j) Reservation of Common Stock. Promptly after the initial Closing, the
Company shall reserve and keep available the maximum number of its authorized
but unissued shares of Common Stock which are issuable: (1) upon conversion of
all shares of Convertible Preferred Stock and the exercise of all Warrants
offered in the Offering; and (2) upon the exercise of the Placement Agent's
Warrants (issuable pursuant to Section 4(c) of this Agreement).
(k) Series A Preferred Stock. At the initial Closing, all outstanding
shares of Series A Preferred Stock will be exchanged for Series B Preferred
Stock, in accordance with the terms set forth in the Memorandum.
(l) Quarterly Budgets. So long as any shares of Convertible Preferred
Stock are outstanding, the Company shall submit quarterly budgets in advance to
the Placement Agent. Such budgets shall be approved by the Company's Board.
7. Covenants of the Placement Agent.
The Placement Agent covenants and agrees as follows:
(a) Compliance with Regulation D. Neither the Placement Agent nor any of
its affiliates nor any person acting on behalf of, or as agent for, the
foregoing, shall take any action in connection with the Offering which would
cause the Offering not to comply with Rule 505 of Regulation D.
(b) Integration. Neither the Placement Agent nor any of its affiliates nor
any person acting on behalf of, or as agent for, the foregoing, shall
participate, directly or indirectly, in any offering of securities between the
date of the Agreement and six months of the last sale of the Units in the
Offering which would be combined or integrated with the Offering for purposes of
Rule 502(c) of Regulation D, so as to render the exemption provided by
Regulation D unavailable with respect to the Offering.
(c) Accredited Investors. The Placement Agent shall not Offer the
Convertible Preferred Stock to any prospective Subscriber (i) if the Placement
Agent has reason to believe that material information supplied or the
representations and warranties made by that person are not fully accurate; or
(ii) unless immediately prior to making such officer, the Placement Agent
reasonably believes that such person is an "accredited investor," as defined in
Regulation D.
(d) Blue Sky. The Placement Agent shall prepare and file such
applications, filings, statements, and reports as are or may be required to
qualify the shares of Convertible Preferred Stock for sale under the securities
or Blue Sky laws in such jurisdictions as it may reasonably designate.
<PAGE>
Page 22 of 26 Pages
8. Financial Consulting Agreement.
The parties have also entered into an agreement pursuant to which the
Company has engaged Commonwealth Associates to provide advice related to
corporate finance and general business matters.
9. Future Offerings.
For a two-year period commencing on the final Closing date of the
Offering, the Company and, by their signatures below, each of its stockholders
presently owning at least five percent (5%) of the Company's Common Stock,
hereby grant the Placement Agent the right of first refusal (on terms, including
time of performance and fees, comparable to those that can be obtained from
other sources) to act as (a) investment banker or financial consultant or
adviser for the Company in any respect, or (b) lead manager, placement agent, or
investment banker with respect to any proposed underwritten public distribution
or private placement of the Company's securities or any merger, acquisition, or
disposition of assets of the Company, if the Company uses a lead manager,
placement agent or investment banker or person performing such functions for a
fee. The Placement Agent will advise the Company promptly (but in no event later
than ten business days following the submission to the Placement Agent in a
reasonably detailed writing of any such proposed transaction) of the Placement
Agent's election to exercise such right. If any such proposal is not accepted by
the Placement Agent and if the Placement Agent specifies its objections in
writing, then, if such proposal is later modified in a manner which reasonably
satisfies such written specifications by the Placement Agent, or if the
transaction is not closed within six (6) months after the expiration of the
Placement Agent's right of first refusal with respect to an Offering or three
(3) months with respect to any other described transaction, the Company will
resubmit such proposal to the Placement Agent. Should the Placement Agent elect,
at any time, not to exercise such right, said election shall not affect or
diminish such rights for future transactions; provided, however, that, if the
Placement Agent elects, at any time, not to exercise such rights, and if a
transaction is consummated within such time periods through another financial
advisor or investment banker (on terms not more favorable to the advisor or
investment banker), then, the rights set forth in this Section 9 shall thereupon
terminate, and be of no further force or effect whatsoever.
10. Registration Rights.
The Company and each subscriber have entered into an Investor Rights
Agreement. In addition, the Company and the Placement Agent, have also entered
into a substantially similar Investment Rights Agreement.
11. Indemnification.
A copy of the Commonwealth standard indemnification provisions (the
"Indemnification Provisions") is attached to this Agreement and is incorporated
herein and made a part thereof as Exhibit C.
<PAGE>
Page 23 of 26 Pages
12. Resolution of Disputes.
The parties will attempt to settle any claim or controversy arising out of
this Agreement through consultation and negotiation in good faith and in the
spirit of mutual cooperation. If those attempts fail, then the dispute will be
mediated by a mutually acceptable mediator to be chosen by the parties within 15
days after written notice from either party demanding mediation. Neither party
may unreasonably withhold consent to the selection of a mediator, and the
parties will share the costs of the mediation equally. Any dispute which the
parties cannot resolve through negotiation or mediation within three months of
the date of the initial demand for it by one of the parties may then be
submitted to the courts for resolution. The use of mediation will not be
construed under the doctrine of laches, waiver or estoppel to affect adversely
the rights of either party. Nothing in this paragraph will prevent either party
from resorting to judicial proceedings if (a) good faith efforts to resolve the
dispute under these procedures have been unsuccessful or (b) interim relief from
a court is necessary to prevent serious and irreparable injury.
13. Miscellaneous.
(a) Survival. Sections 4(b) and Section 11, hereof shall survive any
termination and shall survive the initial Closing and any subsequent Closing.
The Placement Agent, shall, for a period of one year from the last Closing or
the termination (as the case may be) be entitled to compensation pursuant to
Sections 4(a) and 4(c) if the Company shall consummate any transaction with any
person or entity introduced to the Company by the Placement Agent.
(b) Notices. All notices, requests, consents, and other communication
hereunder shall be in writing and delivered personally, sent by registered or
certified mail, postage prepaid, or delivered to a recognized overnight courier
service (such as Federal Express), shipping charges prepaid, addressed as
follows:
(i) If to the Company to:
The Rattlesnake Holding Company, Inc.
439 East 82nd Street
New York, New York 10028
Attn: President
with a copy to:
Ruskin, Moscou, Evans & Faltischek, P.C.
170 Old Country Road
Mineola, New York 11501
Attn: Stuart M. Sieger, Esq.
<PAGE>
Page 24 of 26 Pages
(ii) If to the Placement Agent to:
Commonwealth Associates
830 Third Avenue
New York, New York 10022
Attn.: Stephan A. Stein
Managing Director,
Corporate Finance
with a copy to:
Sherman & Gordon, P.C.
521 Fifth Avenue
New York, New York 10175
Attn.: Nahum L. Gordon, Esq.
or such other persons or such other addresses as may be designed in writing by
the parties, by notice given as aforesaid.
(c) Severability. If any one or more of the provisions contained in this
Agreement should be invalid, illegal, or unenforceable in any respect, the
validity, legality, and enforceability of the remaining provisions contained
herein shall not in any way be affected thereby.
(d) Binding Nature. This Agreement shall be binding upon, and inure to the
benefit of, the personal representatives, executors, administrators, heirs,
successors, loyal guarantors, and permitted assigns of the parties hereto.
(e) Non-Assignability; No Other Beneficiaries. This Agreement may not be
assigned by either party. This Agreement is intended for the sole and exclusive
benefit of the parties hereto and their respective successors and controlling
persons, and no other person, firm or corporation shall have any third-party
beneficiary or other rights hereunder; provided, however, that the provisions of
Section 6 shall inure to the benefit of the Subscribers.
(f) Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of New York.
(g) Counterparts. This Agreement may be signed in counterparts, with the
same effect as if both parties had signed one and the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties in respect of the offering of the Convertible
Preferred Stock and supersedes all prior agreements, arrangements, and
understandings with respect thereto. This Agreement may be amended or modified
only by a writing signed by the parties hereto.
<PAGE>
Page 25 of 26 Pages
If you find the foregoing is in accordance with our understanding, kindly
sign and return to us a counterpart hereof, whereupon this instrument along with
all counterparts will become a binding agreement between us.
Very truly yours,
THE RATTLESNAKE HOLDING COMPANY, INC.
By:
----------------------------------
, President
Agreed to:
COMMONWEALTH ASSOCIATES
By:
-------------------
Date:
-----------------
Page 26 of 26 Pages
Exhibit 2
JOINT FILING OF SCHEDULE 13D
The undersigned hereby agree to jointly prepare and file with regulatory
authorities a Schedule 13D and any future amendments thereto reporting each of
the undersigned's ownership of securities of The Rattlesnake Holding Company,
Inc. and hereby affirm that such Schedule 13D is being filed on behalf of each
of the undersigned.
Dated: June 23, 1999 Commonwealth Associates L.P.
New York, New York
By: Commonwealth Associates Management Corp.,
its general partner
By: /s/ Joseph Wynne
-----------------------------------------
Joseph Wynne
Chief Financial Officer
Dated: June 23, 1999 /s/ Michael S. Falk
New York, New York ---------------------------------------------
Michael S. Falk
Dated: June 23, 1999 /s/ Robert Priddy
Marietta, Georgia ---------------------------------------------
Robert Priddy
Dated: June 23, 1999 /s/ Keith Rosenbloom
New York, New York ---------------------------------------------
Keith Rosenbloom
Dated: June 23, 1999 /s/ Basil Ascuitto
New York, New York ---------------------------------------------
Basil Ascuitto
Dated: June 23, 1999 /s/ Robert Beuret
New York, New York ---------------------------------------------
Robert Beuret
