This
letter confirms our agreement (“ Agreement ”)
regarding your separation from Golfsmith International, Inc. and
its parent and each of its subsidiaries (hereafter “
Golfsmith ”) as follows:
1. We
have designated March 4, 2009 (the “ Separation
Date ”), as the effective date of your termination as
Senior Vice President – Chief Financial Officer, and the
final date of your employment with Golfsmith.
2. Payments
and Benefits.
(a)
From the Separation Date until March 4, 2011 (the “
Severance Period ”), Golfsmith will continue to pay
your base salary in effect as of the Separation Date (“
Severance Pay ”), which amounts to an aggregate total
of four hundred fourteen thousand ($414,000), less deductions
required by law, in consideration for the promises, covenants,
agreements, and releases set forth herein. The Severance Pay
described in this paragraph shall be paid to Employee at
Golfsmith’s regular pay periods during the Severance Period
by continuing the direct deposit in effect as of the Separation
Date. In the event that you become employed by and receive
income from another company or entity after March 4, 2010 but
during the Severance Period, you shall promptly notify Golfsmith in
writing, and the Severance Payments described in this paragraph
shall be offset by the total amount of any monies you earn during
the Severance Period as an employee of another company or entity,
regardless of the amount or type of monies earned; provided
further , that if the total amount of any moneys earned or
received as an employee of another company or entity is the
equivalent of your aggregate total Severance Pay or greater during
the Severance Period, Golfsmith’s obligation to pay the
Severance Pay shall cease .
(b)
For a period of up to 24 months following your Separation Date
or until you and your dependants are eligible to be covered and
actually become covered under another substantially equivalent
medical insurance plan for health and dental coverage by a
subsequent employer, whichever
is
sooner, Golfsmith will fund you and your dependants’
continued health insurance benefits pursuant to the Company plan
for the first six months and then by matching your COBRA
continuation coverage payments (the “ Insurance
Continuation Payments ”) commensurate with the elections
you selected prior to the Separation Date during the Severance
Period, provided you elect COBRA coverage when requested. In the
event that you become employed by and obtain health and dental
coverage with another company during the Severance Period, you
shall promptly notify Golfsmith in writing.
(c)
All of your outstanding options to acquire Golfsmith’s common
stock that were granted under the 2002 Incentive Stock Plan shall
continue to vest in accordance with their current vesting schedules
as of the Separation Date and your rights under the 2002 Incentive
Stock Plan remain in effect and are not altered because of your
severance of employment with Golfsmith, your acceptance of
employment with another company or the terms otherwise in this
Agreement.
Golfsmith’s
obligations and promises to you including, but not limited to those
in this Agreement, shall survive any merger, acquisition or sale of
the Company as originally defined in your Amended and Restated
Employment Agreement dated May 30, 2006 or otherwise.
Golfsmith agrees to require as a term of any sale of Golfsmith,
that the Company or entity that purchases it during the Severance
period must assume its obligations and promises to you as an
accepted liability of said sale.
4. In
consideration of the foregoing payments and benefits, and for other
good and valuable consideration, you agree as follows:
(a)
Release You for yourself and your successors, heirs and
assigns IRREVOCABLY AND UNCONDITIONALLY RELEASES, ACQUITS AND
FOREVER DISCHARGES Golfsmith, and its parents, subsidiaries
affiliates, and the shareholders, directors, officers, employees,
agents, attorneys, insurers, guardians, successors, assigns, heirs,
executors, and administrators (the “ Releasees
”) from any and all claims, liabilities, obligations,
agreements, damages, causes of action, costs, losses, damages, and
attorneys’ fees and expenses whatsoever, whether known or
unknown or whether connected with your employment by Golfsmith or
not, including, but not limited to, any dispute, claim, charge, or
cause of action arising under the Age Discrimination in
Employment Act, 29 U.S.C. § 621, et. seq., Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e, et seq ., the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101, et seq ., the
Texas Commission on Human Rights Act, Tex. Labor Code §
21.001 et. seq. , the Employee Retirement Income Security
Act of 1974, as amended 29 U.S.C. § 1001, et seq .,
and any other municipal, local, state, or federal law, common or
statutory, which may have arisen, or which may arise, prior to, or
at the time of, the execution of this Agreement.
(b)
Golfsmith Property . Within two weeks of the Date of
Termination you shall promptly return all Property which had been
entrusted or made available to you by Golfsmith. The term “
Property ” means all records, files, memoranda,
reports, price lists, customer lists, drawings, plans, sketches,
keys, codes, computer hardware and software and other property of
any kind or description prepared, used or possessed by you during
your employment with Golfsmith (and any duplicates of any such
Property) together with any and all information, ideas, concepts,
discoveries, and inventions and the like (including, but not
limited to, Confidential Information as defined below conceived,
made, developed or acquired at any time by you individually or,
with others during your employment which relate to Golfsmith, its
business or its products or services.
(c)
Trade Secrets . You agree that you shall hold in a fiduciary
capacity for the benefit of Golfsmith and its Affiliates and shall
not directly or indirectly use or disclose any Trade Secret that
you may have acquired during the term of your employment by
Golfsmith, its Affiliates or any of their predecessors for so long
as such information remains a Trade Secret, where the term “
Trade Secret ” means information, including,
but not limited to, technical or non-technical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique,
a drawing or a process that (i) derives economic value, actual
or potential, from not being generally known to, and not being
generally readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use and
(ii) is the subject of reasonable efforts by Golfsmith and any
of its Affiliates to maintain its secrecy. This section is intended
to provide rights to Golfsmith and its Affiliates which are in
addition to, not in lieu of, those rights Golfsmith and its
Affiliates have under the common law or applicable statutes for the
protection of trade secrets.
(d)
Confidential Information . You shall hold in a fiduciary
capacity for the benefit of Golfsmith and its Affiliates, and shall
not directly or indirectly use or disclose, any Confidential
Information that you may have acquired (whether or not developed or
compiled by you and whether or not you are authorized to have
access to such information) during the term of, and in the course
of, or as a result of Executive’s employment by Golfsmith or
its Affiliates or their predecessors without the prior written
consent of the Board of Directors of Golfsmith unless and except to
the extent that such disclosure is required by any subpoena or
other legal process (in which event you will give Golfsmith prompt
notice of such subpoena or other legal process in order to permit
Golfsmith to seek appropriate protective orders). For the purposes
of this separation agreement, the term “ Confidential
Information ” means any secret, confidential or
proprietary information possessed by or entrusted to Golfsmith or
any of its Affiliates, including, without limitation, trade
secrets, customer or supplier lists, details of client or
consultant contracts, current and anticipated customer
requirements, pricing policies, price lists, market studies,
business plans, operational methods, marketing plans or strategies,
product development techniques or flaws, computer software programs
(including object code and source code), data and documentation
data, base technologies, systems, structures and architectures,
inventions and ideas, past current and planned research and
development, compilations, devices, methods, techniques, processes,
financial information and data, business acquisition plans and new
personnel acquisition plans (not otherwise included as a Trade
Secret hereunder) that has not become generally available to the
public other than through disclosure by you, and the term
“Confidential Information” may include, but not be
limited to, future business plans, licensing strategies,
advertising campaigns, information regarding customers or
suppliers, executives and independent contractors and the terms and
conditions of this separation agreement. The Confidential
Information as described above may be in any form, including, but
not limited to, any intangible form such as unrecorded knowledge,
information, ideas, concepts, mental impressions, or may be
embodied in equipment or other tangible form, such as a document,
drawings, photographs, computer code, software or other printed or
electronic media. Notwithstanding the provisions of this section to
the contrary, you shall be permitted to furn
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