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