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)
1
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,
2
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
bu
 |