MARTIN HANAKA EMPLOYMENT AGREEMENT WITH GOLFSMITH INTERNATIONAL HOLDINGS, INC.
Exhibit 10.1
This is an Employment Agreement (this “Employment Agreement”), dated as of June 13, 2008,
entered into between Golfsmith International Holdings, Inc., a Delaware corporation (the
“Company”), and Xxxxxx Xxxxxx (“Executive”).
WHEREAS, the Company and Executive desire that Executive provide the Company employment
services upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, the
parties, intending to be legally bound, agree as follows:
(a) Effective Date. Subject to the terms and conditions set forth in this Employment
Agreement, the Company agrees to employ Executive, and Executive agrees to be employed by the
Company for the three year period starting upon the date hereof (such date being the “Effective
Date”).
(b) Term. Subject to earlier termination pursuant to Section 5, the initial
three-year term of this Employment Agreement is subject to automatic one year extensions starting
on the third anniversary of the Effective Date and on each subsequent anniversary date, unless, at
least 90 days before any such subsequent anniversary date, Executive or the Company cancels the
automatic extension by giving written notice to the other party of its election to cancel such
extension, in which case the term of Executive’s employment hereunder shall terminate as of such
anniversary date.
“Affiliate” as used in this Employment Agreement is defined in Rule 405 under the
Federal Securities Act of 1933, as amended.
“Cause” means:
(1) Executive’s (i) fraud, (ii) embezzlement, or (iii) misappropriation of material
funds or other material Property (as defined in Section 6(a)), in each case
involving or against the Company or any of its Affiliates;
(2) Executive’s indictment for or conviction of any felony or any crime which involves
dishonesty or a breach of trust;
(3) Executive’s gross negligence or willful misconduct with respect to the Company or
any of its Affiliates which causes material detriment to the Company or any of its
Affiliates;
(4) Executive commits a violation of the United States’ Foreign Corrupt Practices Act
of 1977, as amended, and such violation is not cured, or is not capable of being cured,
within thirty days of written notice to Executive from the Company;
(5) the debarment of Executive from engaging in contracting or sub-contracting
activities with the United States Government if such debarment is the result of a final
determination by an agency of such government that Executive knowingly acted in a manner
justifying such debarment;
(6) Executive commits a violation of the Company’s code of ethics or code of business
conduct, including but not limited to the Company’s Code of Business Conduct and Ethics for
Directors, Officers and Employees and Code of Ethics for Senior Executive and Financial
Officers, which the Board of Directors of the Company reasonably determines makes him no
longer able or fit to fulfill his responsibilities under this Employment Agreement, and
which is not cured, or is not capable of being cured, within thirty days after written
notice thereof is given to the Executive by the Company,
(7) Executive engages in any material breach of the terms of this Employment Agreement
or fails to fulfill his duties under this Employment Agreement and such breach or failure,
as the case may be, is not cured, or is not capable of being cured, within thirty days after
written notice thereof is given to the Executive by the Company; or
(8) Executive (i) is censured by any agency of the United States Government or (ii)
fails to satisfy any requirement of any agency of the United States Government which the
Board of Directors of the Company reasonably determines has a material and adverse effect on
his ability to fulfill his duties under this Employment Agreement and such failure is not
cured within thirty days after written notice thereof is given to the Executive by the
Company.
“Change of Control” means an event described in Section 2.9(a) of the ISP, excluding,
for this purpose, any acquisition by First Atlantic Capital, Ltd. or Atlantic Equity
Partners III.
“Competing Business” means any business which designs, distributes, sells or markets
golf equipment and golf related products, or any other business in which the Company or any
of its Affiliates is substantially engaged, (1) at any time during the Term, or (2) for
purposes of the Restricted Period, at any time during the one-year period
immediately preceding the termination of Executive’s employment hereunder.
Notwithstanding the foregoing, a Competing Business shall not include (i) suppliers of the
Company or any of its Affiliates, or (ii) any entity that receives less than 25% of its
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revenue from the retail sales of golf equipment or golf related products, so long as, in the
case of either clause (i) or (ii), Executive does not engage in the design, distribution,
sales or marketing of golf equipment or golf related products.
“Date of Termination” means the date that Executive’s employment with the Company
terminates.
“Disability” means a condition which renders Executive unable (as determined by the
Board of Directors of the Company in good faith after consultation with a health care
provider selected by the Board of Directors of the Company after good faith consultation
with Executive or his legal representative) to regularly perform his duties hereunder by
reason of illness or injury for a period of more than six consecutive months.
“Earned Bonus” means the Annual Bonus, determined based on the actual performance of
the Company for the full fiscal year in which Executive’s employment terminates, that
Executive would have earned for such fiscal year had he remained employed for the entire
year, prorated based on the ratio of the number of days during such year that Executive was
employed to 365. Such Earned Bonus will be determined and paid to Executive (or his estate,
if applicable) in accordance with Section 4(b), if he is entitled to such Earned
Bonus under Section 5(b), Section 5(d) or Section 5(e), as if no
such termination had occurred.
“Good Reason” means (i) a material and continuing failure to pay to Executive
compensation or benefits (as described in Section 4) that have been earned, if any,
by Executive, (ii) a material reduction in Executive’s compensation or benefits (as
described in Section 4), (iii) a material reduction, without Executive’s written
consent, in Executive’s title, position or duties, or (iv) any breach by the Company of this
Employment Agreement which is material; provided, however, that the occurrence of any event
described in this sentence may only constitute Good Reason if (a) Executive gives the
Company written notice of his intention to terminate his employment for Good Reason and, in
reasonable detail, of the event constituting grounds for such termination within sixty (60)
days of the occurrence of such event and (b) the relevant circumstances or conditions are
not remedied by the Company within thirty (30) days after receipt by the Company of such
written notice from Executive.
“ISP” means the Golfsmith International Holdings, Inc. 2006 Incentive Compensation
Plan, in each case as amended from time to time.
“Release” means a full and final general release agreement executed by Executive
releasing the Company, its affiliated companies, its predecessors, successors and assigns,
and each of their officers, directors, agents, and employees from any and all claims, with
the exception of the Company’s breach of its post-employment obligations arising under this
Employment Agreement.
“Restricted Period” means the two (2)-year period following the Date of Termination.
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“Term” means the three-year period following the Effective Date and any and all
subsequent full or partial one-year extensions thereto until terminated pursuant to the
provisions of this Employment Agreement.
(a) Title. Executive shall be the Chairman and Chief Executive Officer of the Company.
(b) Powers and Duties. Executive in fulfilling his duties shall have such powers as
are normally and customarily associated with a president and chief executive officer in a company
of similar size and operating in a similar industry, including the power to hire and fire employees
and executives of the Company reporting to Executive and such other powers as authorized by the
Board of Directors of the Company.
Executive, as a condition to his employment under this Employment Agreement, represents and
warrants that he can assume and fulfill the duties described in this Employment Agreement without
any risk of violating any non-compete or other restrictive covenant or other agreement to which he
is a party.
(c) Reporting Relationship. Executive shall report to the Board of Directors of the
Company.
(d) Full Time Basis. Executive shall serve the Company faithfully and to the best of
his ability and will devote his full business time, energy, experience and talents to the business
of the Company and its Affiliates.
(e) Geographic Area. Executive shall perform his duties principally in the Austin,
Texas metropolitan area and shall be required to travel outside of that area as necessary or
appropriate to the performance of his duties hereunder.
(a) Annual Base Salary. Executive’s base salary shall be $600,000 per year, which
amount may be reviewed and increased at the discretion of the Board of Directors of the Company or
any committee of the
Board of Directors of the Company duly authorized to take such action. Executive’s base
salary shall be payable in accordance with the Company’s standard payroll practices and policies
for executives and shall be subject to such withholdings as required by law or as otherwise
permissible under such practices or policies.
(b) Annual Bonus.During the Term, Executive shall be eligible to receive an annual
performance-based cash bonus (“Annual Bonus”). The maximum Annual Bonus that Executive may
earn is 75% of Executive’s then-current annual base salary, based on the Company’s attainment of
such annual earnings before interest, depreciation, income tax, and amortization (“EBITDA”) goals
as are established by the Board of Directors of the Company and communicated to Executive on an
annual basis. Any Annual Bonus shall be paid during the Company’s fiscal year immediately
following the fiscal year to which such Annual Bonus relates
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and within 60 days following the delivery of the Company’s independent auditors’ report for such fiscal year.
(c) Employee Benefit Plans.Executive shall be eligible to participate, on terms no
less favorable to Executive than the terms for participation of any other senior executive of the
Company, in the employee benefit plans, programs and policies maintained by the Company in
accordance with the terms and conditions to participate in such plans, programs and policies as in
effect from time to time. The employee benefit plans described in this paragraph shall include (if
and for as long as the Company sponsors such plans):
| (1) | 401(k) retirement savings plan; | ||
| (2) | disability plan; | ||
| (3) | health plan; and | ||
| (4) | ISP. |
(d) Stock Options. Executive shall receive stock options to purchase 1,000,000 shares
of common stock of the Company, provided, however, that such options to purchase an amount of
shares equal to 800,000 shares shall only be exercisable if the shareholders of the Company approve
an increase in the number of shares available under the ISP at least equal to such amount of
shares. The exercise price of such options shall be the fair market value at the closing of the
market of such common stock on the grant date of such options. Such options shall become
exercisable in equal annual installments on each of the first five anniversaries of the grant date
of such options, provided, however, that such options shall become fully exercisable in the event
of a Change of Control. Such options shall be subject to the terms and conditions set forth in the
ISP and the applicable option agreement granted to Executive under the ISP.
(e) Vacation. Executive shall have the right to four weeks of vacation during each
successive one year period in the Term, which vacation time shall be taken at such time or times in
each such one
year period so as not to materially and adversely interfere with the performance of his duties
under this Employment Agreement. Executive in addition shall have the right to the same holidays
as other employees of the Company.
(f) Expense Reimbursements. Executive shall have the right to reasonable expense
reimbursements consistent with the Company’s practice immediately prior to the execution of this
Agreement.
During the Term, while Executive maintains his permanent residence in Fort Lauderdale,
Florida, the Company will pay or reimburse: (A) reasonable residential rental and living expenses
(including meals) incurred by Executive during the Term for his temporary residence in the Austin,
Texas, metropolitan area, and (B) reasonable airfare incurred by Executive during the Term for
business purposes and commuting up to once per week between Austin, TX and Fort Lauderdale, FL,
subject to the Company’s receipt of such appropriate documentation as the Company may reasonably
require and compliance with the Company’s expense reimbursement
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policy. For purposes of the preceding sentence, (i) the amount of such expenses eligible for such payment or reimbursement
provided during one calendar year shall not affect the amount of such expenses eligible for such
payment or reimbursement in any other calendar year, (ii) any such payment or reimbursement of an
eligible expense shall be made on or before the last day of the calendar year following the
calendar year in which such expense was incurred, (iii) no such payment or reimbursement may be
liquidated or exchanged for another benefit, and (iv) all such payments or reimbursements shall be
treated as separate payments for purpose of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”). To the extent any amounts payable or reimbursed under this Section
4(g) are taxable to Executive, the Company shall pay Executive an additional cash sum to place
Executive in the same after-tax position Executive would have occupied absent the taxes
attributable to such amounts; provided, however, that any such payment shall be made by the end of
the calendar year next following the calendar year in which Executive remits such taxes.
(h) Indemnification.With respect to Executive’s acts or failures to act during his
employment in his capacity as a director, officer, employee or agent of the Company, Executive
shall be entitled to indemnification from the Company, and to liability insurance coverage (if
any), on the same basis as other directors and officers of the Company.
(a) General.The Board of Directors of the Company shall have the right to terminate
Executive’s employment at any time with or without Cause, and Executive shall have the right to
terminate his employment at any time with or without Good Reason. Except as otherwise provided in
this Employment Agreement, Executive’s participation in and entitlement to all fringe benefits or
employee benefit plans or programs shall cease upon the Date of Termination; however, nothing
in this Employment Agreement is intended to waive or abridge any right or benefit which was vested
under the terms and conditions of the applicable plan or program on or before the Date of
Termination.
(b) Termination by Board of Directors without Cause, by cancellation, or by Executive for
Good Reason, or Change of Control. (i) If, prior to the occurrence of a Change of Control, (A)
the Board of Directors of the Company terminates Executive’s employment without Cause or cancels an
automatic extension of this Employment Agreement under Section 1(b), or (B) Executive
resigns for Good Reason, in exchange for Executive executing, delivering and not revoking a Release
(such Release to be delivered on or before the end of the fifty (50) day period following the Date
of Termination), shall pay Executive: (1) his earned but unpaid base salary and earned but unpaid
Annual Bonus for any completed fiscal year; (2) his Earned Bonus; and (3) 200% of an amount equal
to his then-current total annual base salary, payable, commencing no later than sixty (60) days
following the Date of Termination, in equal installments in accordance with the Company’s payroll
procedures during the twenty-four month period immediately following commencement of such
installment payments. This obligation shall remain in effect even if Executive accepts other
employment.
(ii) If, on or following the occurrence of a Change of Control, (A) the Board of Directors of
the Company terminates Executive’s employment without Cause or cancels an automatic extension of
this Employment Agreement under Section 1(b), or (B) if Executive
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resigns under any circumstances, the Company, in exchange for Executive executing, delivering and not revoking a
Release (such Release to be delivered on or before the end of the fifty (50) day period following
the Date of Termination), shall pay Executive: (1) his earned but unpaid base salary and earned but
unpaid Annual Bonus for any completed fiscal year; (2) his Earned Bonus; and (3) 200% of an amount
equal to the sum of his current total annual base salary plus his then-current maximum Annual Bonus
(as described in Section 4(b), payable, commencing no later than sixty (60) days following
the Date of Termination, in equal installments in accordance with the Company’s payroll procedures
during the twenty-four month period immediately following commencement of such installment
payments. This obligation shall remain in effect even if Executive accepts other employment. For
the avoidance of doubt, if Executive is entitled to payment under this Section 5(b)(ii), he
shall not be entitled to payment under Section 5(b)(i).
(iii) In case of a termination or resignation described in Section 5(b)(i) or
5(b)(ii), the Company shall additionally make any COBRA continuation coverage premium
payments (not only for Executive, but for Executive’s dependents), for the two year period
following the Date of Termination or, if earlier, until Executive is eligible to be covered under
another substantially equivalent medical insurance plan by a subsequent employer; provided,
however, that the applicable period of “continuation coverage” for purposes of COBRA shall be
deemed to commence on the Date of Termination.
(iv) Notwithstanding the provisions of this Section 5(b) or those of Section
5(d) or 5(e), if the Release has not been executed and delivered as described in this
Section 5(b), or Section 5(d) or 5(e), as applicable, and become
irrevocable within the statutory revocation
period, no amounts or benefits under this Section 5(b), or Section 5(d) or
5(e), as applicable, shall be or become payable.
(v) Notwithstanding the foregoing provisions of this Section 5(b) or those of
Section 5(d), to the extent required in order to comply with Section 409A of the Code, cash
amounts that would otherwise be payable under this Section 5(b) or Section 5(d)
during the six-month period immediately following the Date of Termination shall instead be paid,
with interest on any delayed payment at the applicable federal rate provided for in Section
7872(f)(2)(A) of the Code, on the first business day after the date that is six (6) months
following the Executive’s “separation from service” within the meaning of Section 409A of the Code.
(c) Termination by the Board of Directors for Cause or by Executive without Good
Reason.If the Board of Directors of the Company terminates Executive’s employment for Cause or
Executive resigns without Good Reason other than on or following the occurrence of a Change of
Control, the Company’s only obligation to Executive under this Employment Agreement shall be to pay
Executive: (i) his earned but unpaid base salary up to the Date of Termination; and (ii) his
earned but unpaid Annual Bonus for any completed fiscal year, and Executive shall have no right to
any Earned Bonus or any bonus payment prorated for a partial year in which such termination occurs.
The Company shall only be obligated to make such payments and provide such benefits under any
employee benefit plan, program or policy in which Executive was a participant as are explicitly
required to be paid to Executive by the terms of any such benefit plan, program or policy following
the Date of Termination. For the avoidance of doubt, if Executive is entitled to payment under this
Section 5(c), he shall not be entitled to payment under Section 5(b).
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(d) Termination for Disability.The Board of Directors of the Company shall have the
right to terminate Executive’s employment on or after the date Executive has a Disability, and such
a termination shall not be treated as a termination without Cause under this Employment Agreement.
If Executive’s employment is terminated on account of a Disability, the Company, in exchange for
Executive executing, delivering and not revoking a Release (such Release to be delivered on or
before the end of the fifty (50) day period following the Date of Termination), shall pay
Executive, shall:
(1) pay Executive his base salary through the last day of the month containing
his Date of Termination (payable in a lump-sum within sixty (60) days following the
Date of Termination);
(2) pay Executive his earned but unpaid Annual Bonus for any completed fiscal
year (payable in a lump-sum within sixty (60) days following the Date of
Termination);
(3) pay Executive his Earned Bonus for the fiscal year in which the Date of
Termination occurs;
(4) pay or cause the payment of benefits to which Executive is entitled under
the terms of the disability plan of the Company covering the Executive at the time
of such Disability;
(5) make such payments and provide such benefits as otherwise called for under
the terms of the ISP and each other employee benefit plan, program and policy in
which Executive was a participant; and
(6) make any COBRA continuation coverage premium payments (not only for
Executive, but also for Executive’s dependents), for the one year period following
the Date of Termination or, if earlier, until Executive is eligible to be covered
under another substantially equivalent medical insurance plan by a subsequent
employer; provided, however, that the applicable period of “continuation coverage”
for purposes of COBRA shall be deemed to commence on the Date of Termination.
(e) Death. If Executive’s employment terminates as a result of his death, the Company, in
exchange for the legal representative of Executive’s estate executing, delivering and not revoking
a Release (such Release to be delivered on or before the end of the fifty (50) day period following
the Date of Termination), shall:
(1) pay Executive’s estate Executive’s base salary through the last day of the
month containing the Date of Termination (payable in a lump-sum within sixty (60)
days following the Date of Termination);
(2) pay Executive’s estate Executive’s earned but unpaid Annual Bonus for any
completed fiscal year (payable in a lump-sum within sixty (60) days following the
Date of Termination);
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(3) pay Executive’s estate Executive’s his Earned Bonus, when actually
determined, for the year in which Executive’s death occurs,
(4) make such payments and provide such benefits as otherwise called for under
the terms of the each employee benefit plan, program and policy in which Executive
was a participant; and
(6) make any COBRA continuation coverage premium payments for Executive’s
dependents, for the one year period following Executive’s death or, if earlier,
until such dependents are eligible to be covered under another substantially
equivalent medical insurance plan; provided, however, that the applicable period of
“continuation coverage” for purposes of COBRA shall be deemed to commence on the
Date of Termination.
(a) Company Property.Executive upon the Date of Termination or, if earlier, upon the
Company’s request shall promptly return all Property which had been entrusted or made available to
Executive by the Company, where 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 Executive during
Executive’s employment by the Company (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 in Section 6(c)) conceived, made, developed or
acquired at any time by Executive individually or, with others during Executive’s employment which
relate to the Company, its business or its products or services.
(b) Trade Secrets.Executive agrees that Executive shall hold in a fiduciary capacity
for the benefit of the Company and its Affiliates and shall not directly or indirectly use or
disclose any Trade Secret that Executive may have acquired during the Term of Executive’s
employment by the Company, 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 the Company and any of its Affiliates to maintain its secrecy.
This Section 6(b) is intended to provide rights to the Company and its Affiliates which
are in addition to, not in lieu of, those rights the Company and its Affiliates have under the
common law or applicable statutes for the protection of trade secrets.
(c) Confidential Information.Executive while employed by the Company or its Affiliates
and at all times thereafter shall hold in a fiduciary capacity for the benefit of the Company and
its Affiliates, and shall not directly or indirectly use or disclose, any Confidential Information
that Executive may have acquired (whether or not developed or compiled by Executive and whether or
not Executive is authorized to have access to such information) during
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the Term of, and in the course of, or as a result of Executive’s employment by the Company or its Affiliates or their
predecessors without the prior written consent of the Board of Directors of the Company unless and
except to the extent that such disclosure is (i) made in the ordinary course of Executive’s
performance of his duties under this Employment Agreement or (ii) required by any subpoena or other
legal process (in which event Executive will give the Company prompt notice of such subpoena or
other legal process in order to permit the Company to seek appropriate protective orders). For the
purposes of this Employment Agreement, the term “Confidential Information” means any secret,
confidential or proprietary information possessed by or entrusted to the Company 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 under this Employment
Agreement) that has not become generally available to the public other than through disclosure by
Executive, 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 Employment
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 6(c) to the contrary, Executive shall be permitted to furnish
this Employment Agreement to a subsequent employer or prospective employer.
(d) Non-solicitation of Customers or Employees. Executive (i) while employed
by the Company or any of its Affiliates, shall not, on Executive’s own behalf or on behalf
of any person, firm, partnership, association, corporation or business organization, entity
or enterprise (other than the Company or one of its Affiliates), solicit or attempt to
solicit on behalf of a Competing Business customers of the Company or any of its Affiliates,
or induce or attempt to induce any such customers or suppliers of the Company or any of its
Affiliates to cease or reduce business with the Company or any of its Affiliates, or
knowingly interfere with the relationship between any such customer, supplier or any other
business relation and the Company or any such Affiliate, and (ii) during the Restricted
Period shall not, on Executive’s own behalf or on behalf of any person, firm, partnership,
association, corporation or business organization, entity or enterprise, solicit or attempt
to solicit on behalf of a Competing Business customers of the Company or any of its
Affiliates with whom Executive had contact or made contact within the course of Executive’s
employment by the Company or an Affiliate within the twenty-four month period immediately
preceding the beginning of the Restricted Period, or induce or attempt to induce any such
customers or suppliers of the Company or any of its Affiliates to cease or reduce business
with the Company or any of its Affiliates, or knowingly interfere with any relationship
between any such customer, supplier or any other business relation and the Company or any
such Affiliate.
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(2) Executive (i) while employed by the Company or any of its Affiliates shall not,
either directly or indirectly, except in the interest of the Company or any of its
Affiliates, call on, solicit or attempt to induce any other officer, employee or independent
contractor of the Company or any of its Affiliates to terminate his or her employment or
relationship with the Company or any such Affiliate and shall not assist any other person or
entity in such a solicitation (regardless of whether any such officer, employee or
independent contractor would commit a breach of contract by terminating his or her
employment), and (ii) during the Restricted Period, shall not, either directly or
indirectly,
call on, solicit or attempt to induce any person who is or, during the twelve month
period immediately preceding the beginning of the Restricted Period, was an officer,
employee or independent contractor of the Company or any of its Affiliates to terminate his
or her employment or relationship with the Company or any of its Affiliates and shall not
assist any other person or entity in such a solicitation (regardless of whether any such
officer, employee or independent contractor would commit a breach of contract by terminating
his or her employment). Notwithstanding the foregoing, nothing herein shall prohibit any
person from independently contacting Executive about employment during the Restricted Period
provided that Executive does not solicit or initiate such contact.
(e) Non-competition Obligation.Executive, while employed by the Company or any of its
Affiliates and thereafter during the Restricted Period will not, for himself or on behalf of any
other person, partnership, company or corporation, directly or indirectly, acquire any financial or
beneficial interest in (except as provided in the next sentence), be employed by, or own, manage,
operate or control, or become a director, officer, partner, employee, agent or consultant of, any
entity which is engaged in, or otherwise engage in, a Competing Business. Notwithstanding the
preceding sentence, Executive will not be prohibited from owning less than two percent (2%) of any
publicly traded corporation, whether or not such corporation is in a Competing Business.
(f) Nondisparagement.
During the Term and at all times thereafter, Executive shall not disparage or defame to third
parties the Company or any of its Affiliates or their respective officers or directors, or their
respective employees or owners who were such employees or owners during the Term, or, during the
Term and the Restricted Period only, their respective customers who were such customers during the
Term. During the Term and at all times thereafter, the Company and its Affiliates and their
respective officers and directors shall not disparage or defame Executive to third parties.
Nothing contained in this Section 6(f) shall preclude Executive or the Company or any of
the Company’s Affiliates from enforcing his or their respective rights under this Employment
Agreement.
(g) Reasonable and Continuing Obligations.Executive agrees that Executive’s
obligations under this Section 6 are obligations which will continue beyond the date
Executive’s employment terminates and that such obligations are reasonable, fair and equitable in
scope, terms and duration, are necessary to protect the Company’s legitimate business interests and
are a material inducement to the Company to enter into this Employment Agreement.
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(h) Remedy for Breach.Executive agrees that the remedies at law of the Company for any
actual or threatened breach by Executive of the covenants in this Section 6 would be
inadequate and that the Company shall be entitled to (i) cease or withhold payment to Executive of
any severance payments or benefits described in Section 5 for which he otherwise qualifies
under Section 5, and/or (ii) specific performance of the covenants in this Section
6, including entry of a temporary
restraining order in state or federal court, preliminary and permanent injunctive relief
against activities in violation of this Section 6, or both, or other appropriate judicial
remedy, writ or order, in addition to any damages and legal expenses which the Company may be
legally entitled to recover. The Company agrees to give Executive, and, if known, Executive’s
attorney, notice of any legal proceeding, including any application for a temporary restraining
order, relating to an attempt to enforce the covenants in this Section 6 against Executive.
Executive acknowledges and agrees that the covenants in this Section 6 shall be construed
as agreements independent of any other provision of this Employment Agreement or any other
agreement between the Company and Executive, and that the existence of any claim or cause of action
by Executive against the Company, whether predicated upon this Employment Agreement or any other
agreement, shall not constitute a defense to the enforcement by the Company of such covenants.
The Company and Executive further acknowledge that the time, scope, geographic area and other
provisions of this Section 6 have been specifically negotiated by sophisticated parties and
agree that they consider the restrictions and covenants contained in this Section 6 to be
reasonable and necessary for the protection of the interests of the Company and its Affiliates, but
if any such restriction or covenant shall be held by any court of competent jurisdiction to be void
but would be valid if deleted in part or reduced in application, such restriction or covenant shall
apply with such deletion or modification as may be necessary to make it valid and enforceable.
(a) Notices.Notices and all other communications shall be in writing and shall be
deemed to have been duly given when personally delivered or when mailed by United States registered
or certified mail. Notices to the Company shall be sent to the following address or a more recent
address provided in writing by the Company to Executive:
GOLFSMITH INTERNATIONAL HOLDINGS, INC.,
c/o First Atlantic Capital, Ltd.
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
c/o First Atlantic Capital, Ltd.
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Notices and communications to Executive shall be sent to the following address or a more
recent address provided in writing by Executive to the Chair of the Board of Directors of the
Company:
Xxxxxx Xxxxxx
0000 Xxxxxxxxx 0xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
0000 Xxxxxxxxx 0xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
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(b) No Waiver. No failure by either the Company or Executive at any time to give notice of any breach by the
other of, or to require compliance with, any condition or provision of this Employment Agreement
shall be deemed a waiver of any provisions or conditions of this Employment Agreement.
(c) Withholding Taxes.
All amounts payable hereunder shall be subject to the withholding of all applicable taxes and
deductions required by any applicable law.
(d) Texas Law.This Employment Agreement shall be governed by Texas law without
reference to the choice of law principles thereof. Any litigation that may be brought by either
the Company or Executive involving the enforcement of this Employment Agreement or any rights,
duties, or obligations under this Employment Agreement, shall be brought exclusively in a Texas
state court or United States District Court in Texas.
(e) Assignment.This Employment Agreement shall be binding upon and inure to the
benefit of the Company and any successor in interest to the Company or any segment of such
business. The Company may assign this Employment Agreement to any affiliate or successor that
acquires all or substantially all of the assets and business of the Company or a majority of the
voting interests of the Company, and no such assignment shall be treated as a termination of
Executive’s employment under this Employment Agreement. Executive’s rights and obligations under
this Employment Agreement are personal and shall not be assigned or transferred.
(f) Other Agreements.Upon the Effective Date, this Employment Agreement replaces and
merges any and all previous agreements and understandings regarding all the terms and conditions of
Executive’s employment, or other service provider, relationship with the Company, and this
Employment Agreement constitutes the entire agreement between the Company and Executive with
respect to such terms and conditions.
(g) Xxxxxxxxx.Xx amendment to this Employment Agreement shall be effective unless it
is in writing and signed by the Company and by Executive.
(h) Invalidity.If any part of this Employment Agreement is held by a court of
competent jurisdiction to be invalid or otherwise unenforceable, the remaining part shall be
unaffected and shall continue in full force and effect, and the invalid or otherwise unenforceable
part shall be deemed not to be part of this Employment Agreement.
(i) Xxxxxxxxxx.Xx the event that either party to this Employment Agreement institutes
litigation against the other party to enforce his or its respective rights under this Employment
Agreement, each party shall pay its own costs and expenses incurred in connection with such
litigation.
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IN WITNESS WHEREOF, the Company and Executive have executed this Employment Agreement in
multiple originals to be effective as of the Effective Date.
| GOLFSMITH INTERNATIONAL HOLDINGS, INC. |
EXECUTIVE |
||||||||||
| By: | /s/ Xxxx Xxxxxx | /s/ Xxxxxx Xxxxxx | |||||||||
| Name: | Xxxx Xxxxxx | Name: Xxxxxx Xxxxxx | |||||||||
| Title: | Chairman, Compensation Committee | ||||||||||
| Date: June 13, 2008 | Date: June 13, 2008 | ||||||||||
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