Exhibit 10.1
CONFIDENTIALITY,
INTELLECTUAL
PROPERTY AND NON-COMPETE
AGREEMENT
This CONFIDENTIALITY,
INTELLECTUAL PROPERTY AND NON-COMPETE AGREEMENT
(“ Agreement ”)
is made and entered into as of the
day of
, 2009 (the “
Effective Date ”) by and between Golfsmith
International Holdings, Inc. and its subsidiaries (the “
Company ”) and
[ ]
(“ Executive ”).
PRELIMINARY
STATEMENTS
A. The Company desires to employ Executive as
[ ],
and Executive desires to be employed by the Company in said
capacity; and
B. Each Party desires to set forth in writing the
terms and conditions of their understandings and agreements as to
the issues of confidentiality, non-disclosure and
non-competition.
C. Each Party agrees that this Agreement applies
for all lines of business existing upon Executive’s
separation of employment with Company.
NOW, THEREFORE,
in consideration of the mutual
covenants and obligations contained herein, the Parties agree as
follows:
STATEMENT OF
AGREEMENT
1.
Nondisclosure
.
(a)
Definition
. “
Confidential Information ” means any and all material,
data, discoveries, ideas, improvements, information, inventions,
formulae, patterns, compilations, programs, devices, methods,
techniques, processes, know how, plans (marketing, business,
strategic, technical or otherwise), arrangements, pricing and/or
other information of, or relating to the Company (as well as its
clients, customers, and/or vendors) that is confidential,
proprietary, and/or a trade secret, (i) by its nature,
(ii) based on how it is treated or designated by the Company,
(iii) based on the significance of its existing or potential
commercial value or business utility; (iv) such that its
appropriation, use or disclosure would have a material adverse
effect on the business or planned business of the Company, or
(v) as a matter of law. Confidential Information
includes, without limitation, business operations and methods;
financial performance; contractual relationships; business partners
and relationships; clients and customers; marketing modules and/or
strategies; and lists with information related to existing or
prospective clients, customers. There is no requirement that
any Confidential Information be reduced to a writing to meet the
foregoing definition. Work Product (as defined below) is
included in the definition of Confidential Information. To
the extent Confidential Information is reduced to a writing, there
is no requirement that any documents, information, materials or
media be marked “confidential” or bear any similar
marking in order to fall within the definition of
“Confidential Information.”
(b)
Exceptions
. To the
extent Executive can demonstrate the following by clear and
convincing evidence, Confidential Information does not include
material, data, and/or information: (i) that the Company
has voluntarily and fully placed in the public domain with the
intent for such information to remain public and be readily and
publicly accessible; (ii) that has been lawfully and
independently developed and publicly disclosed by third parties
without any direct or indirect access to any Confidential
Information as evidenced by prior written records; (iii) that
constitutes the general non-specialized knowledge and skills gained
by Executive during the Employment Period (as defined
below)
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without use of or access to
any Confidential Information; (iv) that otherwise enters the
public domain through lawful means; or (v) that Executive
provides to third parties regarding Executive’s obligations
under this Agreement; provided, however , that the
unauthorized appropriation, use, or disclosure of Confidential
Information by Executive, directly or indirectly, shall not affect
the protection and relief afforded by this Agreement regarding such
information. Any Confidential Information that includes a
combination of features or aspects shall not be deemed to be within
any of the foregoing exceptions merely because individual features
or aspects fall within any one or more of such exceptions, but only
if the combination itself falls within any of the
exceptions.
(c)
Provision
. The
Company promises to provide Executive with access to Confidential
Information as reasonably necessary for the performance of the
Executive’s job duties.
(d)
Protection
. Both
during and after the Employment Period, Executive shall not, in any
manner, directly or indirectly: (i) appropriate,
download, print, copy, image, fax, e-mail, remove, use, disclose,
divulge, and/or communicate any Confidential Information, to or for
the benefit of any Person (as defined below), including (without
limitation) originals or copies of any Confidential Information, in
any media or format, except for the Company’s benefit within
the course and scope of Executive’s employment, or with the
prior written consent of the Chief Executive Officer of the Company
or his/her designee (“ CEO ”); or (ii) take
or encourage any action that would circumvent, interfere with, or
otherwise diminish the value or benefit of any Confidential
Information to the Company. All Confidential Information is
the exclusive property of the Company, the appropriation, use
and/or disclosure of which is governed and restricted by this
Agreement. Executive agrees to use utmost diligence to
protect and safeguard the Confidential Information as prescribed in
Section 1 of this Agreement.
(e)
Return and
Review . All Confidential
Information, and all other information and property affecting or
relating to the business of the Company (including without
limitation files, documents, materials, records, notebooks,
customer lists, business proposals, contracts, agreements and other
repositories containing information concerning the Company or the
business of the Company), within the Executive’s possession,
custody or control, regardless of form or format, shall remain, at
all times, the property of the Company. At any time that the
Company may request, during or after the Employment Period,
Executive shall deliver to the Company, all originals and copies of
Confidential Information, and all other information and property
affecting or relating to the business of the Company, within
Executive’s possession, custody or control, regardless of
form or format; provided that , upon the Termination Date
(as defined below), Executive shall effect such delivery without
the necessity of a prior Company request. Both during and
after the Employment Period, the Company shall have the right of
reasonable access to review, inspect, copy, and/or confiscate any
Confidential Information, and any other information and property
affecting or relating to the business of the Company, within
Executive’s possession, custody or control.
(f)
Response to
Third Party Requests . Upon receipt of any
formal or informal request, by legal process or otherwise, seeking
Executive’s direct or indirect disclosure or production of
any Confidential Information to any Person, Executive shall
promptly and timely notify the Company and provide a description
and, if applicable, hand deliver a copy of such request to the
Company. Executive irrevocably nominates and appoints the
Company to act in the Executive’s name, place and stead to
perform any act that Executive might perform to defend and protect
against any disclosure or production of Confidential
Information.
2.
Work
Product .
(a)
Definition
. As used
in this Agreement, the term “ Work Product ”
means all patents and patent applications, all inventions,
innovations, improvements, developments, methods, designs,
analyses,
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drawings, reports, creative
works, discoveries, software, computer programs, modifications,
enhancements, know-how, formulations, concepts and ideas, all
similar or related information (in each case whether patentable or
not), all copyrights and copyrightable works, all trade secrets,
confidential information, and all other intellectual property and
intellectual property rights, that are written, conceived, reduced
to practice, developed, and/or made by Executive, either alone or
with others in the course of Executive’s employment with or
services to Company (including employment or services prior to the
Effective Date).
(b)
Assignment
. Subject
to Section 2.e. below, Executive hereby assigns to
Company all right, title, and interest to all Work Product that
(i) relates to the Company’s actual or anticipated
business, research and development, or existing or future products
or services, or (ii) is conceived, reduced to practice,
developed, or made using any equipment, supplies, facilities,
assets, information, or resources of the Company (including,
without limitation, any intellectual property rights).
(c)
Work for
Hire . Subject to
Section 2.e. below, any and all Work Product created or
developed by Executive during the Employment Period that is
protectable under copyright law, including without limitation works
of authorship, computer software and related works, are agreed and
stipulated to be “work for hire” under applicable
copyright law, and the sole property of the Company, which is
deemed to be the exclusive author, copyright claimant, and owner of
the copyright in such work. To the extent any of the
preceding copyrighted works are not deemed a “work for
hire” under applicable copyright law, Executive hereby
irrevocably assigns all right, title and interest in such
copyrighted works to Company or its designee.
(d)
Disclosure and
Assistance . Subject to the terms
of Section 2.e. , both during and after the Employment
Period, Executive will promptly disclose all Work Product to the
Company and perform all actions reasonably requested by the Company
(whether during or after the Employment Period) to establish and/or
confirm the title, ownership and proprietary interest of the
Company in any Work Product, and to protect the Company’s
Work Product. Executive will not file any patent or copyright
applications related to any Work Product except with the written
consent of Company. Executive hereby irrevocably designates
and appoints the Company and its duly authorized officers and
agents, to act for and on Executive’s behalf to execute and
file any applications or related findings and to do all other
lawfully permitted acts to further the prosecution, issuance and
enforcement of Work Product, with the same legal force and effect
as if executed by Executive.
(e)
Exclusions
. Except
for any matter(s) listed in the following table, there is no
Work Product in existence that Executive claims to be excluded from
this Agreement, whether from prior employment with or service to
Company, or otherwise.
3.
Non-Compete
and Non-Solicitation . Executive
acknowledges and agrees that, as an employee and representative of
the Company, Executive will be given access to specialized training
and Confidential Information as reasonably necessary for the
performance of the Executive’s job duties. Executive
acknowledges and agrees that this creates a special relationship of
trust and confidence between the Company, Executive and the
Company’s current and prospective clients and
customers.
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Executive further
acknowledges and agrees that there is a high risk and opportunity
for any Person given access to such responsibility, specialized
training, and Confidential Information to misappropriate the
relationship and goodwill existing between the Company and the
Company’s current and prospective clients and
customers. Executive therefore acknowledges and agrees that
it is fair and reasonable for the Company to take steps to protect
itself from the risk of such misappropriation. Consequently,
Executive agrees to the following restrictive
covenants:
(a)
Vendor
Non-Solicitation. During the Employment Period,
Executive shall
not directly or indirectly divert away or attempt to divert away
any business from the Company to another company, business, or
individual. During the Non-Interference Period (as defined
below), Executive shall not directly or indirectly Solicit, divert
away or attempt to divert away from the Company any business of any
Company Vendor (as defined below).
(b)
Employee
Non-Solicitation. D uring the Non-Interference
Period, Executive shall not directly or indirectly, in any
capacity: (i) solicit any employee, agent or
representative of the Company who was an employee, agent or
representative of the Company upon Executive’s separation
from Company, to terminate such person’s relationship with
the Company or to become employed by any Person other than the
Company; (ii) approach any such employee, agent or
representative of the Company for any of the foregoing purposes;
(iii) authorize, Solicit or assist in the taking of such
actions by any third party; or (iv) hire or retain any such
employee, agent or representative of the Company.
(c)
Non-Compete.
D uring the Employment Period
and the Non-Interference Period, absent the Company’s express
written permission, Executive shall not provide the same or
substantially the same services that Executive provides to the
Company, in the Same or Similar Business (as defined below) within
the Market Area (as defined below). This restriction includes
working, directly or indirectly, as an employee, employer,
consultant, agent, principal, partner, corporate officer, director,
holder of more than five percent of the stock, or in any other
individual or representative capacity.
(d)
Definitions.
i.
The term “
Company Vendor ” means any Perso
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