AGREEMENT AND RELEASE OF CLAIMS
WHEREAS, XXXXXXX X. XXXXXXX ("Executive") and TRACK `N TRAIL ("Company")
(collectively the "Parties") entered into an employment agreement ("Employment
Agreement"); and
WHEREAS, the Parties, by mutual consent, wish to terminate the Employment
Agreement as of October 25, 1999.
NOW THEREFORE, in recognition of the Parties' mutual termination of the
Employment Agreement and in full satisfaction of the Company's obligations to
the Executive for good and valuable consideration, receipt and sufficiency of
which is hereby acknowledged, intending to be legally bound, the Parties agree
as follows:
1. Executive shall terminate his employment with Company effective upon
the date of this Agreement.
2. Executive shall resign his seat on the Board of Directors of Track
`n Trail (a Delaware Corporation), Track `n Trail (a California Corporation),
Overland Management Corporation (a Massachusetts Corporation) , and Xxxxx'x
Eagles Nest, Inc. (a Colorado Corporation) effective upon the date of this
Agreement.
3. The Company has previously paid to Executive his regular pay through
October 25, 1999 and accrued vacation through such date. Upon execution of this
agreement, Company shall pay to Executive a lump sum amount of one hundred
eighty thousand nine hundred thirteen dollars and twenty cents ($180,913.20) on
January 3, 2000, as a severance payment as set forth in the Employment Agreement
reduced by applicable withholding and FICA. Commencing November 25, 2000 and
continuing through April 25, 2001, the Company shall make six monthly payments
in the amount of fifteen thousand seventy-six dollars and ten cents (15,076.10)
each, provided such payments will not be made if Executive has entered into any
other employment prior to October 25, 2000 or if he enters into employment after
October 25, 2000 but before April 25, 2001 payments shall cease upon such
employment. Employment shall include any executive capacity employment or
contractor relationship and shall include any executive level agreement for
compensation, whether cash, liquid equity compensation, deferred compensation or
other.
4. Both the Company and Executive expressly waive any requirements
express or implied in the Employment Agreement regarding timing and form of
Executive's termination or notice of termination. Executive acknowledges receipt
of check #3445 dated November 1, 1999 in the amount of fourteen thousand eight
hundred sixty-nine dollars and fifty cents ($14,869.50) as a payment of 30 day's
salary and the parties agree that such payment is made and accepted in lieu of
notice under the Employment Agreement.
5. Company agrees to pay directly to Company's health insurance carrier
premiums on behalf of Executive to pay for his family's actual health coverage
under Internal Revenue Code Section 4980B ("COBRA") for the coverage period
through October 25, 2000. Thereafter, any
such coverage shall be paid by Executive.
6. Company will make a good faith effort to identify a buyer for all
the stock exercised or exercisable under the Company's stock options granted to
Executive. This provision does not in any fashion amend the Company's stock
options plan or stock option agreements with Executive.
7. Contingent upon payment of the amount set forth in Section 2 above,
the parties expressly waive any and all rights and claims they have under the
Employment Agreement and the Employment Agreement shall be terminated upon
payment of the settlement.
8. Executive acknowledges that this Agreement shall not be construed as
an admission by the Company of a violation of its employment policies or
procedures or any other improper, unlawful or wrongful conduct by the Company on
its own part or on the part of any of its officers, directors, employees of
agents.
9. Executive agrees that the consideration set forth in this Agreement
is in full satisfaction of, and Executive hereby releases the Company, its
officers, directors, employees or agents from, any claims, liabilities, demands
or causes of action that Executive may have against the Company or any or the
directors, officers, employees, or agents of the Company (excepting claims for
vested benefits under Company employee benefit plans, based on Executive's
employment) (x) under the Employment Agreement, (y) in connection with
Executive's employment relationship with the Company or any affiliate of the
Company on or prior to the date of this Agreement, and (z) any rights or claims
for workers' compensation insurance benefits and any rights which may arise
after the date of this Agreement. The claims released include, but are not
limited to, claims for discrimination including claims under the Fair Employment
and Housing Act, Title VII of the Civil Rights Act of 1964 or the Federal Age
Discrimination in Employment Act of 1967, as amended, breach of contract, or any
other claims. Executive agrees and promises that he will not file any lawsuit
asserting any such connection with the pursuits of any claim that could not be
brought by the Executive hereunder.
10. Executive understands that various federal, state and local laws
prohibit age, sex, national origin, race and other forms of employment
discrimination, and that these laws are enforced through the U.S. Equal
Employment Opportunity Commission, and similar state and local agencies. If
Executive believed that his treatment by the Company had violated any these
anti-discrimination laws, he understands he could have in lieu of this Agreement
consulted with these agencies and filed a charge with them. Instead, Executive
has voluntarily decided to enter into this Agreement and to waive and release
the claims, if any, he may have under such laws.
11. Executive hereby expressly waives the provisions of California
Civil Code section 1542, which provides as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
12. The Company expressly waives any claim or action against Executive
of which it has knowledge as of the date of this Agreement.
IN WITNESS WHEREOF, the parties enter into this Agreement as of October 25,
1999.
TRACK 'N TRAIL
by: /S/ XXXXXX X. XXXXXXX
------------------------------
Title: Chief Financial Officer
/S/ XXXXXXX X. XXXXXXX
--------------------------------
XXXXXXX X. XXXXXXX
