Vice President of Marketing Employment Agreement

Exhibit 10.2


EMPLOYMENT AGREEMENT


THIS AGREEMENT is made and entered into as of this 3rd day of January, 1994, by and between John Wilkinson (hereinafter referred to as "Employee"), and Track 'N Trail, a California corporation (hereinafter referred to as "Track 'N Trail").


IN CONSIDERATION of the mutual promises set forth below, Employee and Track 'N Trail hereby agree as follows:


1. EMPLOYMENT. Track 'N Trail hereby agrees to employ Employee, and Employee agrees to provide services to Track 'N Trail in the position of V.P.-Marketing on an "at-will" basis, subject to the terms and conditions hereinafter set forth.


2. DUTIES. Subject to the control of Track 'N Trail's Board of Directors and/or Track 'N Trail management personnel with authority over Employee, Employee shall perform the duties and responsibilities set forth in Attachment A and such other duties and responsibilities assigned from time-to-time which are commensurate with Employee's role as Track 'N Trail's V.P.-Marketing. Throughout the term of this Agreement, Employee shall devote all of his or her energies, interest, abilities and productive time to the performance of his or her duties and responsibilities under this Agreement, and shall not, without Track 'N Trail's prior written consent, render services to any other person or entity or otherwise engage in any other activity that would materially interfere with the performance of such duties and responsibilities under this Agreement.


3. TERM. The term of this Agreement shall be two (2) year(s) from the effective date of this Agreement and shall extend and renew for a one-year period each anniversary date thereafter, unless terminated as set forth herein. Employee or Track 'N Trail may terminate Employee's employment and this Agreement with or without "cause" (including by reason of Employee's disability for more than four months or death) upon thirty (30) days' written notice to the other party. Additionally, Track 'N Trail may terminate this Agreement and Employee's employment for "cause" immediately without notice. "Cause" shall be defined as follows:


a. Employee being convicted of, pleading guilty or NOLO CONTENDERE to, or confessing to any act of fraud, misappropriation or embezzlement, or to any felony;


b. Employee engaging in dishonest acts to the detriment of Track 'N Trail;


c. Employee otherwise failing to comply with the terms of this Agreement and/or engaging in misconduct in violation of Track 'N Trail policies.


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4. PAY ON TERMINATION. Should Track 'N Trail terminate this Agreement and Employee's employment without cause as defined above and/or materially breach any portion of this Agreement, Track 'N Trail shall tender to Employee an amount equal to one (1 ) year of pay, to be calculated at the highest rate of pay Employee has received from Track 'N Trail in the two-year period prior to Employee's termination. Payments of said sum shall be made on Employee's last day of employment, or on terms mutually agreeable to Employee and Track 'N Trail.


5. WORKING CONDITIONS. Track 'N Trail agrees that during the term of this Agreement Track 'N Trail:


a. Shall provide, establish and maintain reasonable working conditions for Employee and abide by all state, federal and local employment regulations and law;


b. Shall not, without the written consent of Employee, materially alter or reduce the duties and responsibilities assigned to Employee as set forth in Attachment A to this Agreement; or


c. Shall not, without written consent of Employee, require Employee to relocate to any office in excess of thirty (30) miles from El Dorado Hills, California.


Notwithstanding anything to the contrary in this paragraph 5 or this Agreement overall, Track 'N Trail's failure to meet any of its obligations under this paragraph 5 shall constitute a termination of Employee without cause entitling Employee to the sole remedy of electing to continue his or her employment notwithstanding such failure or to leave Track 'N Trail's employ and receive compensation from Track 'N Trail pursuant to the provisions of paragraph 4.


6. COMPENSATION. Employee agrees to accept and Track 'N Trail agrees to pay for Employee's services at the rate of $105,000 per year. Employee shall be eligible to receive bonuses on the same terms and conditions as other similarly situated employees. Track 'N Trail reserves the right to increase Employee's compensation rate prospectively at any time.


7. CONFIDENTIAL INFORMATION. Employee will, in the course of Employee's duties on behalf of Track 'N Trail, be advised of certain business matters and affairs of Track 'N Trail regarding its clients and the management of its business. The duties performed by Employee for Track 'N Trail place Employee in a position of trust and confidence with respect to certain trade secrets and other proprietary information relating to the business of Track 'N Trail and not generally known to the public. These trade secrets include, but are not limited to, Track 'N Trail's price lists, advertising and promotional ideas and strategies, customer lists, and formulas, patterns, devices, processes, compilations of information, records, and specifica-


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tions which are owned by Track 'N Trail and which are regularly used in the operation of Track 'N Trail (hereinafter "confidential information"). Employee will not, either during the term of Employee's employment or any time in the future, directly or indirectly:


a. Disclose or furnish, directly or indirectly, to any other person, firm, agency, corporation, client, business, or enterprise, any confidential information acquired by Employee during the term of this Agreement;


b. Individually or in conjunction with any other person, firm, agency, company, client, business or corporation, employ or cause to be employed any confidential information in any manner whatsoever, except in furtherance of the business of Track 'N Trail;


c. Without the written consent of Track 'N Trail, publish, deliver, or commit to being published or delivered, any copies, abstracts, or summaries of any files, records, documents, drawings, specifications, lists, equipment, and similar items relating to the business of Track 'N Trail, whether prepared by the Employee or otherwise coming into the Employee's possession, except to the extent required in the ordinary course of Track 'N Trail's business;


d. Attempt to encourage, induce, or otherwise solicit, directly or indirectly, any other employee of Track 'N Trail to breach an employment agreement with Track 'N Trail or to otherwise interfere with the advantageous business relationship of Track 'N Trail with its employees.


All files, records, documents, drawings, specifications, lists, equipment and similar items relating to the business of Track 'N Trail, whether prepared by Employee or otherwise coming into the Employee's possession, shall remain the exclusive property of Track 'N Trail and shall not be removed from the premises of Track 'N Trail under any circumstances whatsoever without the prior written consent of an officer of Track 'N Trail.


Upon termination of Employee's employment, Employee agrees to immediately return to Track 'N Trail all property of Track 'N Trail in as good condition as when received by Employee (normal wear and tear excepted) including, but not limited to, all files, records, documents, drawings, specifications, lists, equipment and supplies, promotional materials and similar items relating to the business of Track 'N Trail.


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8. REPAYMENTS. Employee hereby expressly agrees to repay to Track 'N Trail any and all sums owed by Employee to Track 'N Trail immediately upon termination of Employee's employment.


S/JW/ ________ Employee Initials


9. ARBITRATION. In the event Employee's employment and this Agreement are terminated, and Employee believes the termination was wrongful and/or violated any of Employee's rights, Employee and Track 'N Trail agree to submit any dispute arising out of the termination of Employee's employment, including, but not limited to, claims of termination allegedly resulting from discrimination on the basis of race, sex, age, national origin, ancestry, color, religion, marital status, status as a veteran of the Vietnam era, physical or mental disability, medical condition, or any other basis prohibited by law, exclusively to final and binding arbitration before a neutral arbitrator.


If Employee and Track 'N Trail are unable to agree upon a neutral arbitrator, Track 'N Trail will obtain a list of arbitrators from a state or federal arbitration service. Employee (first) and then Track 'N Trail will alternately strike names from the list until one name remains; the remaining person shall be the arbitrator. The arbitrator shall be bound by the qualifications and disclosure provisions and the procedures set forth in the 1989 Model Employment Arbitration Procedures of the American Arbitration Association and shall order such discovery as is appropriate to the nature of the claim and necessary to the adjudication thereof.


Arbitration proceedings shall be held in the city or town where Employee's employment services were performed, at Track 'N Trail headquarters or at any other location mutually agreed upon by Employee and Track 'N Trail. The arbitrator shall determine the prevailing party in the arbitration and the costs of the arbitration shall be paid by the nonprevailing party.


Employee and Track 'N Trail agree that this arbitration shall be the exclusive means of resolving any dispute arising out of Employee's termination and that no other action will be brought by Employee in any court or other forum. ONLY THE ARBITRATOR, NOT A JUDGE OR JURY, WILL DECIDE THE DISPUTE.


If Employee decides to dispute Employee's termination, Employee agrees to deliver a written request for arbitration to Track 'N Trail within one year of the date of Employee's termination and to respond within 14 calendar days to each communication regarding the selection of an arbitrator and the scheduling of a hearing and other matters related to arbitration


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proceedings. If Track 'N Trail does not receive a written request for arbitration from Employee within one year from the date of Employee's termination or if Employee does not respond to any communication from Track 'N Trail about the arbitration proceedings within 14 calendar days, Employee agrees Employee will have waived any right to raise any claims arising out of the termination of Employee's employment with Track 'N Trail in arbitration or in any court or other forum. The limitations set forth in this paragraph shall not be subject to tolling, equitable or otherwise.


The arbitrator shall be permitted to award only those remedies in law or equity which are requested by the parties and supported by credible, relevant evidence. The provisions of this arbitration provision shall survive the termination of this Agreement and Employee's employment, and shall remain in full force and effect thereafter.


Employee and Track 'N Trail agree that if any court of competent jurisdi ...