EXHIBIT 10.51
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N
OTICE OF G RANT OF S TOCK
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C
ALLAWAY G OLF C OMPANY
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O
PTION AND O PTION A GREEMENT
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ID:
95-3797580
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2180
R UTHERFORD
R OAD
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C
ARLSBAD , CA 92008
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P LAN :
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2004 I NCENTIVE P LAN
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1. Grant of Option . Effective
September 3, 2008 (“ Effective Date ”), you
have been granted a Non-qualified Stock Option (“
Option ”) to buy shares of Callaway Golf Company (the
“ Company ”) common stock upon the following
terms:
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EXERCISE PRICE
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SCHEDULED VESTING
DATE
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SCHEDULED EXPIRATION
DATE
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86,200
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$
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14.04
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September 3, 2009
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September 3, 2018
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86,199
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$
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14.04
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September 3, 2010
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September 3, 2018
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86,199
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$
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14.04
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September 3, 2011
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September 3, 2018
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The Option is granted to you
pursuant to the terms and conditions of this Notice of Grant of
Stock Option and Option Agreement (this “ Agreement
”), and the Company’s 2004 Incentive Plan (as amended
and restated from time to time, the “ Plan ”),
the provisions of which Plan are by this reference incorporated in
this Agreement. In the event of any conflict between the provisions
of the Plan and the provisions of this Agreement, the provisions of
the Plan shall be controlling. The Company has provided you with a
copy of the Plan and a prospectus for the Plan. Capitalized terms
not otherwise defined in this Agreement, including Exhibit A
attached hereto, will have the meanings ascribed to them in the
Plan.
The exercise price must be paid in
the form of cash, unless otherwise determined by the Board of
Directors or a designated Board committee (the “ Board
”), in its sole discretion. Upon exercise of the Option, you
must pay in the form of a check or cash or other cash equivalents
to the Company any such additional amount as the Company determines
that it is required to withhold under applicable laws in respect of
such exercise. In this regard, you authorize the Company and/or its
Affiliate to withhold all applicable tax-related items legally
payable by you from your wages or other cash compensation paid to
you by the Company and/or its Affiliate or from proceeds of the
sale of shares of Common Stock. Alternatively, or in addition, if
permissible under local law, the Company may (1) sell or
arrange for the sale of shares of Common Stock that you acquire to
meet the withholding obligation for tax-related items, and/or
(2) withhold from the shares of Common Stock otherwise
issuable to you upon the exercise of the Option that number of
shares having an aggregate Fair Market Value (as defined in the
Plan), determined as of the date the withholding tax obligation
arises, equal to the amount of the total withholding tax
obligation; provided, however, that, the number of shares so
withheld shall not have an aggregate Fair Market Value in excess of
the minimum required withholding. You acknowledge that the ultimate
liability for all tax-related items legally due by you is and
remains your responsibility and that Company and/or its Affiliate
(a) makes no representations or undertakings regarding the
treatment of any tax-related items in connection with any aspect of
the option grant, including the grant, vesting or exercise of the
option, the subsequent sale of shares of Common Stock acquired
pursuant to such exercise and the receipt of any dividends; and
(b) do not commit to structure the terms of the grant or any
aspect of the Option to reduce or eliminate your liability for
tax-related items.
2. Vesting . Subject to
Section 3 (Term and Termination) and
Section 4 (Cancellation, Forfeiture and Rescission) of
this Agreement, and subject to the accelerated vesting provisions,
if any, set forth in any employment agreement between you and the
Company or its Affiliate, as the same may be amended, modified,
extended or renewed from time to time, the Option shall vest in
accordance with the vesting schedule set forth above subject to
your Continuous Service through the applicable vesting dates. The
Board may, in its discretion, accelerate the vesting schedule (in
which case it may impose whatever conditions it considers
appropriate on the accelerated portion). In addition, the entire
Option shall vest and become exercisable immediately prior to any
Change in Control, if you are in the Continuous Service of the
Company or its Affiliate at that time, provided, however, that the
Board of Directors, in its sole discretion, may provide that such
Option does not vest and become exercisable immediately prior to
any such Change in Control, and instead provide that the Option
shall be assumed or that an equivalent option or right shall be
substituted by a successor company, in which case the amount and
price of such assumed or substituted option shall be determined by
adjusting the amount and price of the Option consistent with the
terms of the transaction giving rise to the Change in Control.
Notwithstanding the foregoing, if the Board elects to provide that
the Option does not vest in connection with a Change in Control and
your Continuous Service is terminated for any reason within one
year following such Change in Control, then the entire assumed or
substituted option shall vest and become exercisable immediately
upon such termination of your Continuous Service. For purposes
hereof, “Change in Control” shall have the meaning set
forth in Exhibit A attached hereto.
3. Term and Termination . Subject to
Section 2 (Vesting), if you cease for any reason to
provide Continuous Service to the Company or its Affiliate, that
portion of the Option which has not yet vested shall be immediately
terminated. Subject to Section 4 (Cancellation,
Forfeiture and Rescission) hereof, and except as otherwise provided
in this section, the Option shall expire on the earlier of
(i) the scheduled expiration date set forth above or
(ii) in the case of an Option that has vested, one
(1) year from the date on which you cease to provide
Continuous Service to the Company or its Affiliate for any reason
including death. Notwithstanding the preceding sentence, if
Employee remains employed with the Company through
December 15, 2011, then subject to Section 4
(Cancellation, Forfeiture and Rescission) hereof (and subject to
the conditions set forth in (A) – (D) below), the
Option shall expire on the earlier of (i) the scheduled
expiration date set forth above or (ii) in the case of an
Option that has vested, three (3) years from the date on which
you cease to provide Continuous Service to the Company or its
Affiliate for any reason including death, provided and only for so
long as Employee (A) executes and delivers a fully effective
release in the form attached hereto as Exhibit B within
sixty (60) days after the date of termination of employment,
(B) chooses not to engage in any business or venture that
competes with the business of the Company or any of its affiliates,
(C) does not harm, injure or disparage the Company or its
directors, officers, employees, agents affiliates, vendors,
products, customers or their successors, and (D) continues to
comply with Employee’s post-termination obligations under
this Agreement.
4. Cancellation, Forfeiture and
Rescission .
(a) If during your Continuous
Service or during any period thereafter that you are receiving
Special Severance from the Company, you directly or indirectly
disclose or misuse any confidential information or trade secrets of
the Company then:
(1) any unexercised portion of the
Option is automatically cancelled as of the date you first
committed the act or acts described above (the “Cancellation
Date”); and
2.
(2) any exercise of all or any
portion of the Option exercised on or after the Cancellation Date
or during the “Look-Back Period” preceding the
Cancellation Date shall be rescinded, and you shall be required to
pay to the Company, within ten days of receiving written notice
from the Company, the amount of any gain realized as the result of
any such rescinded exercise (the “Option
Gain”).
The Company shall notify you in
writing of any such rescission within two years of any such
exercise. If you are still providing Continuous Service on the
Cancellation Date, the “Look-Back Period” is ninety
days. If you are no longer providing Continuous Service on the
Cancellation Date, the “Look-Back Period” is the longer
of ninety days or the number of days elapsed from the date of
termination of your Continuous Service to the Cancellation Date.
For purposes of this Agreement, an “indirect” use of
the Company’s confidential information or trade secrets shall
be presumed to have occurred if you take a comparable position with
a competitor in which case you shall have the burden of proving
that no use or disclosure of confidential information or trade
secrets occurred or will occur. For purposes of this Agreement, and
in the absence of proof of actual gain on the date of exercise,
“Option Gain” shall mean the New York Stock Exchange
closing price on the date of exercise minus the exercise price of
the Option, multiplied by the number of shares you purchased upon
the exercise, without regard to any subsequent market price
decrease or increase.
(b) In lieu of paying to the Company
any Option Gain required to be paid to Company pursuant to this
Section 4 , you may return to the Company the number of
shares purchased upon exercise of the Option. You hereby agree that
the Company may set off against any amount the Company may now or
hereafter owe you the amount of any Option Gain required to be paid
by you to Company under this S ection 4. This
Section 4 does not limit any other legal or equitable
remedy available to the Company. As a condition of each exercise of
all or any portion of the Option, you will be required to certify
to the Company on a form of notice of exercise acceptable to the
Company that you have not committed any of the acts described in
paragraph (a) above.
You acknowledge that you have
read each provision of this Section 4 and have had an
opportunity to ask questions with respect to this Section. You
acknowledge that you understand that the Company is granting the
Option subject to the terms of this Section 4
.
(Optionee)
5. Nature of Grant . In accepting the
grant, you acknowledge that:
(a) the Plan is established
voluntarily by the Company, it is discretionary in nature and it
may be modified, amended, suspended or terminated by the Company at
any time, unless otherwise provided in the Plan and this
Agreement;
(b) the grant of the Option is
voluntary and occasional and does not create any contractual or
other right to receive future grants of options, or benefits in
lieu of options, even if options have been granted repeatedly in
the past, and all decisions with respect to future option grants,
if any, will be at the sole discretion of the Company;
(c) your participation in the Plan
shall not create a right to Continued Service with the Company or
an Affiliate and shall not interfere with the ability the Company
or an Affiliate to terminate your service relationship at any time
with or without cause;
3.
(d) you are voluntarily
participating in the Plan;
(e) the Option is an extraordinary
benefit and is not part of normal or expected compensation or
salary for any purposes, including, but not limited to, calculating
any severance, resignation, termination, redundancy, end of service
payments, bonuses, long-service awards, pension or retirement
benefits or similar payments and in no event should be considered
as compensation for, or relating in any way to, past services for
the Company or an Affiliate;
(f) the future value of the
underlying shares of Common Stock is unknown and cannot be
predicted with certainty, and if the underlying shares of Common
Stock do not increase in value, the Option will have no value, and
if you exercise your Option and obtain shares of Common Stock, the
value of those shares of Common Stock acquired upon exercise may
increase or decrease in value, even below the exercise price;
and
(g) in consideration of the grant of
the Option, no claim or entitlement to compensation or damages
shall arise from termination of the Option or diminution in value
of the Option or shares of Common Stock purchased through exercise
of the Option resulting from termination of your Continuous Service
by the Company or an Affiliate (for any reason whatsoever and
whether or not in breach of local labor laws) and you irrevocably
release the Company and its Affiliates from any such claim that may
arise; if, notwithstanding the foregoing, any such claim is found
by a court of competent jurisdiction to have arisen, then, by
signing this Agreement, you shall be deemed irrevocably to have
waived your entitlement to pursue such claim.
6. Electronic Delivery . The Company
may, in its sole discretion, decide to deliver any documents
related to the Option granted under and participation in the Plan
or future options that may be granted under the Plan by electronic
means or to request your consent to participate in the Plan by
electronic means. You hereby consent to receive such documents by
electronic delivery and, if requested, to agree to participate in
the Plan through an on-line or electronic system established and
maintained by the Company or another third party designated by the
Company.
7. Taxable Event . You acknowledge
that the issuance of the Option shares will have significant tax
consequences to you and you are hereby advised to consult with your
own tax advisors concerning such tax consequences. A general
description of the U.S. federal income tax consequences related to
option awards is set forth in the Plan Prospectus.
8. Amendment . This Agreement may be
amended only by a writing executed by the Company and you which
specifically states that it is amending this Agreement.
Notwithstanding the foregoing, this Agreement may be amended solely
by the Board by a writing which specifically states that it is
amending this Agreement, so long as a copy of such amendment is
delivered to you, and provided that no such amendment adversely
affecting your rights hereunder may be made without your written
consent. Without limiting the foregoing, the Board reserves the
right to change, by written notice to you, the provisions of this
Agreement in any way it may deem necessary or advisable to carry
out the purpose of the grant as a result of any change in
applicable laws or regulations or any future law, regulation,
ruling, or judicial decision, provided that any such change will be
applicable only to rights relating to that portion of the Option
which is then subject to restrictions as provided
herein.
4.
9. Miscellaneous
.
(a) The rights and obligations of
the Company under this Agreement will be transferable by the
Company to any one or more persons or entities, and all covenants
and agreements hereunder will inure to the benefit of, and be
enforceable by the Company’s successors and
assigns.
(b) You agree upon request to
execute any further documents or instruments necessary or desirable
in the sole determination of the Company to carry out the purposes
or intent of this Agreement.
(c) You acknowledge that the Option
granted to you under the Plan, and its underlying shares of Common
Stock, are subject to all general Company policies as amended from
time to time, including the Company’s insider trading
policies.
10. Severability . The provisions of
this Agreement shall be deemed to be severable and the invalidity
or unenforceability of any provision shall not affect the validity
or enforceability of the other provisions hereof. If any provision
of this Agreement, or the application thereof to any person or any
circumstance, is held to be invalid or unenforceable under present
or future laws effective during