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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 |
For the quarterly period ended March 31, 2026
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Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 |
For the transition period to
Commission file number 001-10962
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| Callaway Golf Company |
| (Exact name of registrant as specified in its charter) |
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| Delaware |
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95-3797580 |
(State or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification No.) |
2180 Rutherford Road, Carlsbad, CA 92008
(760) 931-1771
(Address, including zip code, and telephone number, including area code, of principal executive offices)
Securities registered pursuant to Section 12(b) of the Act:
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| Title of Each Class |
Trading Symbol(s) |
Name of Each Exchange on which Registered |
| Common Stock, $0.01 par value per share |
CALY |
The New York Stock Exchange |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ý No o
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ý No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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| Large accelerated filer |
☒ |
Accelerated filer |
☐ |
| Non-accelerated filer |
☐ |
Smaller reporting company |
☐ |
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|
Emerging growth company |
☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ý
As of April 30, 2026, the number of shares outstanding of the Registrant’s common stock was 179,757,563.
Important Notice to Investors Regarding Forward-Looking Statements: This report contains “forward-looking statements” as defined under the Private Securities Litigation Reform Act of 1995. Forward-looking statements can be identified by words such as: “may,” “should,” “will,” “could,” “would,” “anticipate,” “plan,” “believe,” “project,” “estimate,” “expect,” “strategy,” “future,” “likely,” and similar references to future periods. Forward-looking statements include, among others, statements that relate to future plans, events, liquidity, financial results, performance, prospects or growth and scale opportunities including, but not limited to, statements relating to our intention to repurchase shares of our common stock pursuant to a stock repurchase program, the anticipated timing, amount and impact of the stock repurchase program, delivering long-term value for shareholders, further growth and investments in our core business, the anticipated benefits and other effects of the sale of the majority stake of our Topgolf International, Inc. (“Topgolf”) business, the expected financial and operational performance of, and future opportunities for, each of the two independent companies following the sale, the tax treatment of the sale, future industry and market conditions, strength and demand of our products and services, continued brand momentum, demand for golf and outdoor activities and apparel, continued investments in the business, consumer trends and behavior, the strength of our brands, product lines and e-commerce business, pending litigation, availability of capital under our credit facilities, the capital markets or other sources, our conservation and cost reduction efforts, compliance with debt covenants, estimated unrecognized stock compensation expense, projected capital expenditures and depreciation and amortization expense, future contractual obligations, the realization of deferred tax assets, including loss and credit carryforwards, future income tax provision, the future impact of new accounting standards, the impacts of inflation and changes in foreign exchange rates, and future prospects and growth of our businesses, including TravisMathew, LLC (“TravisMathew”) and OGIO International, Inc. (“OGIO”). These statements are based upon current information and our current beliefs, expectations and assumptions regarding the future of our business, future plans and strategies, projections, anticipated events and trends, the economy and other future conditions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict and many of which are outside of our control. As a result of these uncertainties and because the information on which these forward-looking statements is based may ultimately prove to be incorrect, actual results may differ materially from those anticipated. Important factors that could cause actual results to differ include, among others, the following:
•certain risks and uncertainties, including changes in capital markets or economic conditions, particularly the uncertainty related to inflation, decreases in consumer demand and spending and any severe or prolonged economic downturn;
•the potential failure to realize the expected benefits of strategic transactions, in the expected timeframes or at all, including our recent divestitures of Jack Wolfskin and 60% of our Topgolf and Toptracer businesses;
•consumer acceptance of and demand for our products;
•future retailer purchasing activity, which can be significantly affected by adverse industry conditions and overall retail inventory levels;
•unfavorable changes in trade or other policies by the U.S. government or foreign governments, including restrictions on imports, increases in U.S. import tariffs, retaliatory tariffs imposed by other countries on U.S. imports, and the potential negative economic consequences thereof, including increased costs, unavailability of materials, inflation, decreased customer demand, an economic slowdown or general economic uncertainty;
•the level of promotional activity in the marketplace;
•future consumer discretionary purchasing activity, which can be significantly adversely affected by unfavorable economic or market conditions;
•future changes in foreign currency exchange rates and the degree of effectiveness of our hedging programs;
•our ability to manage international business risks;
•our ability to recognize operational synergies and scale opportunities across our supply chain and global business platform;
•adverse changes in the credit markets or continued compliance with the terms of our credit facilities;
•our ability to monetize our investments, including without limitation, our 40% stake in Topgolf;
•our ability to successfully operate and, if applicable, expand the retail stores of TravisMathew and our Japan and Korea apparel businesses;
•delays, difficulties or increased costs in the supply of components needed to manufacture our products or in manufacturing our products, including our dependence on a limited number of suppliers for some of our products;
•adverse weather conditions and seasonality;
•any rule changes or other actions taken by the United States Golf Association or other golf associations that could have an adverse impact upon demand or supply of our products;
•our ability to protect our intellectual property rights;
•a decrease in participation levels in golf;
•the effect of terrorist activity, armed conflict (including without limitation, the situation in Iran and the broader Middle East), natural disasters or pandemic diseases, on the economy generally, on the level of demand for our products or on our ability to manage our supply and delivery logistics in such an environment; and
•the general risks and uncertainties applicable to us and our business.
Investors should not place undue reliance on these forward-looking statements, which are based on current information and speak only as of the date hereof. We undertake no obligation to update any forward-looking statements to reflect new information or events or circumstances after the date hereof or to reflect the occurrence of unanticipated events. Investors should also be aware that while we from time to time communicate with securities analysts, it is against our policy to disclose to them any material non-public information or other confidential commercial information. Furthermore, we have a policy against distributing or confirming financial forecasts or projections issued by analysts and any reports issued by such analysts are not our responsibility. Investors should not assume that we agree with any report issued by any analyst or with any statements, projections, forecasts or opinions contained in any such report. For details concerning these and other risks and uncertainties, see our most recent Annual Report on Form 10-K, as well as our quarterly reports on Form 10-Q and current reports on Form 8-K subsequently filed with the Securities and Exchange Commission from time to time.
Callaway Golf Company Trademarks: The following marks and phrases, among others, are our trademarks: #1 Irons in Golf, #1 Putter in Golf, #1 Putter on Tour, 2-Ball, 2-Ball Fang, 2-Ball Jailbird, 2 Ball Putter Design, 360 Carbon Chassis, 360 Face Cup, 360 Fade, 360 UC, 3 Deep, Ai 10x Face, Ai150, Ai200, Ai300, Ai-Dual, AI One 24, AI One Cruiser, AI Smart Face, AI Smoke, Ai-One Square 2 Square Max 1, Ai-One Square 2 Square Max Stripe, All Ride. All the Time., All Walk. All the Time., Alpha Convoy, Alpha Venture, A Mark to Remember, Anamatic, Apex, Apex 21, Apex Ai150, Apex Ai200, Apex Ai300, Apex CB, Apex DCB, Apex MB, Apex Pro, Apex Smoke, Apex TCB, Apex Ti Fusion, Apex Ti Fusion 250, Apex Tour, Apex UT, Apex UW, APW, A Quantum Leap in Distance, Arm Lock, B21, Backstryke, Beachside Stealth, Big Bertha, Big Bertha Alpha, Big Bertha B21, Big Bertha Diablo, Big Bertha Diablo & Horned Shield Design, Big Bertha REVA, Biggest Big Bertha, Big T, Birdiebrigade, Bird of Prey, Black Series, Black Series I, Bogey Free, Broomstick, Callaway, Callaway #1 Irons in Golf, Callaway Aura, Callaway Cargo, Callaway CB12, Callaway Chase, Callaway Chase 14, Callaway Customs, Callaway Edge, Callaway Elyte, Callaway Golf, Callaway Inertia, Callaway Legacy Collection, Callaway Media Productions, Callaway Next, Callaway Opus, Callaway Opus Platinum, Callaway Paradym Night Mode, Callaway Quantum, Callaway Superfast, Callaway Super Hybrid, Callaway Supersoft, Callaway Supersoft Splatter 360, Callaway XR, Caly, Capital, Catch it Clean, Cavity Back Design Pattern (X-14), C Circle Design, CF16, C-Grind, Chev, Chev 18, Chevron Design, Chrome Soft, Chrome Soft X, Chrome Tour, Circle Patch Design, Cloud Collection, Cloud Hoodie, Cloud Polo, Cloud Tee, Cloud Waffle, Coastview, Coolagen, Cuater, Cuater C logo, Cutwave Sole, CXR, Cyclone Aero Shape, Damascus Milled, Dawn Patrol, Demonstrably Superior And Pleasingly Different, Destinations by TravisMathew, DFX, Diablo Forged, Diablo Octane, Diablo Tour, Distance Fitting from Callaway, Distance that Defies Convention, Divine Line, Divine Nine, Double Wide, Downwind, Driver Defender, DSPD, Dual Force, Dual Softfast Core, Eagle, Elyte Night Edition, Elyte Sandstorm, Elyte X Night Edition, Engage, Epic, Epic Flash, Epic Max, Epic Max LS, Epic Speed, Epic Star, ERC, E.R.C. Fusion Stylized, ERC II, ERC Soft, Exclusive Tartan Collection, Exo-Cage, Extended Season, Fairway+, Fairway14, FairwayC, Fateline, Favorite Track, Fit Disc, Flash Face, Flash Face SS21, Flash Face SS22, Flex Pod, FLX360, Fore Me, Forged 455, Forged X, Formfinesse, Freshband, Friday Ponte, Frost Delay, FT-3, FT-5, FT9, FT-I, FT IQ, FTIZ, FT Optiforce, FT Tour, Fusetech, Fusion, Gambit Pro, GBB, GBB Epic, Gems, Giraffe-Beam, Giraffe Design in Circle, Golf Ball on Tee Design, Golf Fusion, Golf Nerd, Golf Shaft (Red & Silver), Gravity Core, Great Big Bertha, Griptac, Hawk Eye, Headliner, Heater Pro Performance, Heater Series, Heater Series – Pure Performance, Heavenwood, Hex Aerodynamics, Hex Black Tour, Hex Diablo, Hex Soft, Hex Tour Soft, Hexbite, High Energy Core & Orbit Design, Hightail, HX, HX Diablo, Hyper Dry, Hyper Elastic Softfast Core, Hyperlite, Hyper-Lite, Hyperlite Zero, Hyper Speed Face Cup, Hyper X, I-Mix, Inertia, IZ Power Source, Jailbird, Jailbird Character Head Design, Jailbird Versa Striped Club Head Design, Jailbreak, Jailbreak AI Velocity Blades, Jailbreak Speed Frame, Jaws Full Toe, JAWS MD5, Kings of Distance, Lag Putt, Leader in Modern Golf, Legacy, Legacy Featherweight, Life On Tour, Longer From Everywhere, Lowrider, Lowrider 2.0., Lowrider Landing Zone, Mack Daddy, Mack Daddy CB, Mack Daddy Forged, Made to Meet the Moment, Magna, Make Every Shot Your Best, MarXman, Mavrik, MD3 Milled, MD4 Tactical, Microhinge Face Insert, Modern Golf, Moveknit, Night Mode, Nothing Beats This, Number One Putter in Golf, Odyssey O Logo, Ody, Odyssey, Odyssey AI One, Odyssey AI One Cruiser, Odyssey Chipper, Odyssey Eleven, Odyssey Max Stripe, Odyssey Seven, OG, Ogio, Ogio Aero, Ogio Alpha, Ogio Featherlite, Ogio Forge, Ogio Fuse, Ogio Pace, Ogio Rise, Ogio Shadow, OGIO Stylized, OGIO XIX, Open to Close, Opening Shot, Opti-Color, Opti Dry, Opti Feel, OptiFit, Opti Fit, Opti Flex, Opti Grip, Opti Shield, OptiTherm, Opti Vent, Opus, Opus Platinum, Opus SP, ORG 14, ORG 14M, O Stylized, Our Favorite Time of the Year, Oworks, Pack. Discover. Explore., Paradym, Paradym AI Smoke, Paradym Night Mode, Playing Through, Poly Mesh, Power Edge Technology, Power & Soft Feel for Slower Swing Speeds, Practice Green, ProType, PT Stylized, Quantum, ·R·, Rainspann, R Ball, RCH, Red Ball, Renegade, Renegade Collection, Renegade Vault, Reva Rise, Rig 9800, Rogue ST, ROGUE Stylized, Rossie, Rossie V, Rule 35, S2H2, S2S Tri-Hot, Sandstorm, Scenic Vista, Scoreline Pattern in White, See the Break, Shaft Shield, Silencer, Sir Isaac Newton Falling Apple Golf Design, Skyloft Soft, SLED, Slice Stopper, SMALL BATCH Hand Holding Hammer Badge, Solaire, Solar Noon, Speed Cartridge, Speed Frame, Speed Step, Speed Tuned, Speed Wave, Spin Gen Technology, Spin Machine, Spin Pocket, Square 2 Square, Square 2 Square Jailbird, Square Way, SRT, Steelhead, Steelhead XR, Step Sole, Strata, Strata Boom, Stroke Lab, Sub Zero, Superhot, Sure-Out, Sweeter from Every Spot, Swing Tech, Swirl Design, Swirl Design & ODYSSEY, Syntech, Tank, TA Winter, Tee It High, Thermal Bomber, TMove, Ti 340 Mini, Ti340 Mini Driver, TM Stylized, TM Stylized & TRAVISMATHEW (Horizontal), TM Stylized & TRAVISMATHEW (Vertical), Toe Up, Tour Aero, Tour Authentic, Tour Authentic Triple Diamond, Tour I, Tour IZ, Tour Tested, Trade In! Trade Up!, Training Aid, TravisMathew, Tri Hot, Tri-Beam, Triforce, Tri-Hot 5K, Triple Diamond Design, TRIPLE TRACK, Triple Track Stripes Design, Trutrack, Truvis, Truvis Pattern, Tungsten Speed Cartridge, Tungsten Speed Wave, Tuttle, Versa, VFT, VTEC, Walk. Push. Ride., Warbird, War Bird, Weather Series, Weather Spann, Wedgeducation, We’re Only Going Further, W-Grind, White Damascus, White Hot, White Hot Microhinge, White Hot OG, White Hot RX Stylized, White Hot Tour, White Hot XG, White Ice, White Trapezoid Design, Wing Back, Winter Rules, Winter Tees, Winter Term, Woode, X-12, X-14, X18, X-18, X-20, X-22, X-24, X460, X-ACT, X Forged, X Hot, X Hot Pro, XR16, XR OS, XR Speed, XR Stylized, X Series, X Series Jaws, X-Spann, X Stylized, X-Tech, XTT, Z Grind, Zinna.
CALLAWAY GOLF COMPANY
INDEX
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| Item 1. |
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| Item 2. |
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| Item 3. |
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| Item 4. |
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| Item 1. |
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| Item 1A. |
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| Item 2. |
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| Item 3. |
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| Item 4. |
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| Item 5. |
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| Item 6. |
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited)
CALLAWAY GOLF COMPANY
CONDENSED CONSOLIDATED BALANCE SHEETS
(In millions, except share data)
(Unaudited)
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|
March 31, 2026 |
|
December 31, 2025 |
| ASSETS |
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| Current assets: |
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| Cash and cash equivalents |
$ |
499.5 |
|
|
$ |
903.2 |
|
Accounts receivable, less allowance of $5.4 million and $4.9 million, respectively |
393.8 |
|
|
123.2 |
|
| Inventories |
596.4 |
|
|
625.3 |
|
| Prepaid expenses |
45.5 |
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|
44.1 |
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| Other current assets |
90.1 |
|
|
69.8 |
|
Current assets of discontinued operations (Note 3) |
— |
|
|
4,170.0 |
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| Total current assets |
1,625.3 |
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|
5,935.6 |
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| Property, plant and equipment, net |
156.2 |
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|
159.5 |
|
| Operating lease right-of-use assets, net |
164.5 |
|
|
173.5 |
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| Intangible assets, net |
222.1 |
|
|
222.4 |
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| Goodwill |
619.6 |
|
|
619.8 |
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Equity method investments (Note 9) |
221.2 |
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|
— |
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| Other assets, net |
171.6 |
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|
175.2 |
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| Total assets |
$ |
3,180.5 |
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|
$ |
7,286.0 |
|
| LIABILITIES AND SHAREHOLDERS’ EQUITY |
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| Current liabilities: |
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| Accounts payable and accrued expenses |
$ |
282.9 |
|
|
$ |
296.2 |
|
| Accrued employee compensation and benefits |
54.2 |
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|
84.9 |
|
| Long-term debt, current portion |
274.4 |
|
|
765.3 |
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| Asset-based credit facilities |
44.1 |
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|
44.7 |
|
| Operating lease liabilities, short-term |
22.6 |
|
|
22.9 |
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| Deferred revenue |
15.5 |
|
|
21.5 |
|
| Other current liabilities |
19.9 |
|
|
18.5 |
|
Current liabilities of discontinued operations (Note 3) |
— |
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|
3,113.5 |
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| Total current liabilities |
713.6 |
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|
4,367.5 |
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Long-term debt, net |
152.9 |
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|
650.7 |
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| Operating lease liabilities, long-term |
181.1 |
|
|
189.7 |
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| Other long-term liabilities |
9.0 |
|
|
9.2 |
|
Commitments and contingencies (Note 12) |
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| Shareholders’ equity: |
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Preferred stock, $0.01 par value, 3.0 million shares authorized, none issued and outstanding at both March 31, 2026 and December 31, 2025 |
— |
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|
— |
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Common stock, $0.01 par value, 360.0 million shares authorized, and 186.2 million shares issued at both March 31, 2026 and December 31, 2025 |
1.9 |
|
|
1.9 |
|
| Additional paid-in capital |
3,033.0 |
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|
3,037.5 |
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| Retained earnings (accumulated deficit) |
(816.4) |
|
|
(909.5) |
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| Accumulated other comprehensive loss |
(33.7) |
|
|
(27.6) |
|
Less: Common stock held in treasury, at cost, 4.4 million and 2.3 million shares as of March 31, 2026 and December 31, 2025, respectively |
(60.9) |
|
|
(33.4) |
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| Total shareholders’ equity |
2,123.9 |
|
|
2,068.9 |
|
| Total liabilities and shareholders’ equity |
$ |
3,180.5 |
|
|
$ |
7,286.0 |
|
The accompanying notes are an integral part of these condensed consolidated financial statements.
CALLAWAY GOLF COMPANY
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In millions, except per share data)
(Unaudited)
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Three Months Ended March 31, |
| |
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2026 |
|
2025 |
| Net sales |
|
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|
$ |
687.5 |
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$ |
629.6 |
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| Cost of sales |
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|
360.8 |
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|
346.0 |
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| Gross profit |
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|
326.7 |
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|
283.6 |
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| Operating expenses: |
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| Selling, general and administrative expense |
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|
173.3 |
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|
164.6 |
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| Research and development expense |
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|
15.2 |
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|
15.9 |
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| Total operating expenses |
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|
188.5 |
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|
180.5 |
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Income (loss) from operations |
|
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|
|
138.2 |
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|
103.1 |
|
Interest income (expense), net |
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|
(5.8) |
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|
(14.9) |
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| Other income (expense), net |
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|
2.9 |
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|
2.4 |
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| Total other income (expense), net |
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|
(2.9) |
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|
(12.5) |
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| Income (loss) from equity method investments |
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|
(27.7) |
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|
— |
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| Income (loss) from continuing operations, before income taxes |
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|
|
107.6 |
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|
90.6 |
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| Income tax provision (benefit) |
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|
32.7 |
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|
27.2 |
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| Net income (loss) from continuing operations |
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|
|
74.9 |
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|
63.4 |
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| Income (loss) from discontinued operations, net of tax |
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|
18.2 |
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|
(61.3) |
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| Net income (loss) |
|
|
|
|
$ |
93.1 |
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|
$ |
2.1 |
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|
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| Basic earnings (loss) per common share: |
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|
|
|
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|
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| Continuing operations |
|
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|
|
$ |
0.41 |
|
|
$ |
0.35 |
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| Discontinued operations |
|
|
|
|
$ |
0.10 |
|
|
$ |
(0.33) |
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| Net earnings (loss) |
|
|
|
|
$ |
0.51 |
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|
$ |
0.01 |
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|
|
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| Diluted earnings (loss) per common share: |
|
|
|
|
|
|
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| Continuing operations |
|
|
|
|
$ |
0.38 |
|
|
$ |
0.33 |
|
| Discontinued operations |
|
|
|
|
$ |
0.09 |
|
|
$ |
(0.31) |
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| Net earnings (loss) |
|
|
|
|
$ |
0.47 |
|
|
$ |
0.02 |
|
|
|
|
|
|
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|
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| Weighted-average common shares outstanding: |
|
|
|
|
|
|
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| Basic |
|
|
|
|
183.7 |
|
|
183.4 |
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| Diluted |
|
|
|
|
202.7 |
|
|
198.2 |
|
The accompanying notes are an integral part of these condensed consolidated financial statements.
CALLAWAY GOLF COMPANY
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
(In millions)
(Unaudited)
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Three Months Ended March 31, |
| |
|
|
|
|
2026 |
|
2025 |
| Net income (loss) |
|
|
|
|
$ |
93.1 |
|
|
$ |
2.1 |
|
| Other comprehensive income (loss): |
|
|
|
|
|
|
|
| Change in derivative instruments |
|
|
|
|
0.8 |
|
|
(8.8) |
|
| Cumulative translation adjustments recognized from the sale of Topgolf |
|
|
|
|
(3.6) |
|
|
— |
|
| Foreign currency translation adjustments |
|
|
|
|
(3.1) |
|
|
18.2 |
|
| Comprehensive income (loss), before income tax |
|
|
|
|
87.2 |
|
|
11.5 |
|
| Income tax provision (benefit) on derivative instruments |
|
|
|
|
0.2 |
|
|
(3.7) |
|
| Comprehensive income (loss) |
|
|
|
|
$ |
87.0 |
|
|
$ |
15.2 |
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|
|
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|
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|
The accompanying notes are an integral part of these condensed consolidated financial statements.
CALLAWAY GOLF COMPANY
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In millions) (Unaudited)
|
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|
|
|
|
|
|
|
|
Three Months Ended March 31, |
| |
2026 |
|
2025 |
| Cash flows from operating activities: |
|
|
|
| Net income (loss) from continuing operations |
$ |
74.9 |
|
|
$ |
63.4 |
|
| Adjustments to reconcile net income (loss) from continuing operations to net cash provided by (used in) operating activities: |
|
|
|
| Depreciation and amortization |
10.8 |
|
|
11.7 |
|
| Loss from equity method investments |
27.7 |
|
|
— |
|
| Amortization of debt discount and issuance costs |
0.8 |
|
|
1.5 |
|
|
|
|
|
| Gain on lease termination incentive |
— |
|
|
(12.0) |
|
| Deferred taxes, net |
19.5 |
|
|
22.6 |
|
| Share-based compensation |
6.4 |
|
|
5.9 |
|
| Loss from partial debt extinguishment |
7.5 |
|
|
— |
|
| Loss on asset disposals |
0.6 |
|
|
— |
|
| Unrealized net losses (gains) on hedging instruments and foreign currency |
(0.7) |
|
|
5.2 |
|
| Gain on investment from golf-related ventures |
(4.5) |
|
|
— |
|
| Other |
(0.5) |
|
|
0.2 |
|
| Change in assets and liabilities |
|
|
|
| Accounts receivable, net |
(272.9) |
|
|
(218.0) |
|
| Inventories |
26.2 |
|
|
20.1 |
|
| Other assets |
(11.9) |
|
|
(10.3) |
|
| Accounts payable and accrued expenses |
(23.9) |
|
|
0.7 |
|
| Deferred revenue |
(6.0) |
|
|
0.2 |
|
| Accrued employee compensation and benefits |
(30.6) |
|
|
1.3 |
|
| Operating lease assets and liabilities, net |
(0.5) |
|
|
0.5 |
|
| Income taxes receivable/payable, net |
6.9 |
|
|
(3.3) |
|
| Other liabilities |
1.2 |
|
|
1.4 |
|
| Net cash provided by (used in) operating activities - continuing operations |
(169.0) |
|
|
(108.9) |
|
| Net cash provided by (used in) operating activities - discontinued operations |
— |
|
|
23.7 |
|
| Net cash provided by (used in) operating activities |
(169.0) |
|
|
(85.2) |
|
| Cash flows from investing activities: |
|
|
|
| Capital expenditures |
(7.0) |
|
|
(7.8) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Proceeds from sale of business line, net of cash retained |
818.8 |
|
|
— |
|
|
|
|
|
| Net cash provided by (used in) investing activities - continuing operations |
811.8 |
|
|
(7.8) |
|
| Net cash provided by (used in) investing activities - discontinued operations |
— |
|
|
(62.2) |
|
| Net cash provided by (used in) investing activities |
811.8 |
|
|
(70.0) |
|
| Cash flows from financing activities: |
|
|
|
| Repayments of long-term debt |
(1,004.3) |
|
|
(4.6) |
|
|
|
|
|
| Proceeds (repayments) on credit facilities, net |
— |
|
|
19.9 |
|
| Debt issuance costs |
— |
|
|
(0.4) |
|
| Repayments of financing leases |
(0.1) |
|
|
(0.1) |
|
|
|
|
|
|
|
|
|
| Acquisition of treasury stock |
(42.0) |
|
|
(3.3) |
|
| Net cash provided by (used in) financing activities - continuing operations |
(1,046.4) |
|
|
11.5 |
|
| Net cash provided by (used in) financing activities - discontinued operations |
— |
|
|
13.6 |
|
| Net cash provided by (used in) financing activities |
(1,046.4) |
|
|
25.1 |
|
| Effect of exchange rate changes on cash, cash equivalents and restricted cash |
(0.4) |
|
|
2.5 |
|
| Net increase (decrease) in cash, cash equivalents and restricted cash |
(404.0) |
|
|
(127.6) |
|
| Cash, cash equivalents and restricted cash at beginning of period |
903.5 |
|
|
450.3 |
|
| Cash, cash equivalents and restricted cash at end of period |
499.5 |
|
|
322.7 |
|
| Less: restricted cash of discontinued operations at end of period |
— |
|
|
(5.7) |
|
| Cash and cash equivalents of continuing operations at end of period |
$ |
499.5 |
|
|
$ |
317.0 |
|
Supplemental disclosures (1): |
|
|
|
| Cash paid for income taxes, net |
$ |
6.1 |
|
|
$ |
10.4 |
|
| Cash paid for interest and fees |
$ |
3.4 |
|
|
$ |
40.3 |
|
| Non-cash investing and financing activities: |
|
|
|
| Issuance of treasury stock and common stock for compensatory stock awards released from restriction |
$ |
14.5 |
|
|
$ |
17.7 |
|
| Accrued capital expenditures |
$ |
0.1 |
|
|
$ |
26.9 |
|
| Financed additions of capital expenditures |
$ |
— |
|
|
$ |
0.8 |
|
(1) For 2026, Supplemental disclosures and Non‑cash investing and financing activities relate solely to continuing operations. For 2025, Supplemental disclosures and Non‑cash investing and financing activities include amounts related to both continuing and discontinued operations. For 2025, $1.9 million of cash paid for income taxes, net, $28.5 million of cash paid for interest and fees, and $24.5 million of accrued capital expenditures were attributable to discontinued operations. |
|
|
|
|
The accompanying notes are an integral part of these condensed consolidated financial statements.
CALLAWAY GOLF COMPANY
CONDENSED CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY
(In millions)
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
Common Stock |
|
Additional Paid-in Capital |
|
Accumulated Deficit |
|
Accumulated Other Comprehensive Loss |
|
Treasury Stock |
|
Total Shareholders’ Equity |
| |
Shares |
|
Amount |
|
|
|
|
Shares |
|
Amount |
|
Balance at December 31, 2024 |
186.2 |
|
|
$ |
1.9 |
|
|
$ |
3,032.8 |
|
|
$ |
(500.2) |
|
|
$ |
(76.0) |
|
|
(3.1) |
|
|
$ |
(50.8) |
|
|
$ |
2,407.7 |
|
| Acquisition of treasury stock |
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(0.5) |
|
|
(3.3) |
|
|
(3.3) |
|
| Compensatory awards released from restriction |
— |
|
|
— |
|
|
(17.7) |
|
|
— |
|
|
— |
|
|
1.1 |
|
|
17.7 |
|
|
— |
|
| Share-based compensation |
— |
|
|
— |
|
|
7.0 |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
7.0 |
|
| Equity adjustment from foreign currency translation |
— |
|
|
— |
|
|
— |
|
|
— |
|
|
18.2 |
|
|
— |
|
|
— |
|
|
18.2 |
|
| Change in fair value of derivative instruments, net of tax |
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(5.1) |
|
|
— |
|
|
— |
|
|
(5.1) |
|
| Net income (loss) |
— |
|
|
— |
|
|
— |
|
|
2.1 |
|
|
— |
|
|
— |
|
|
— |
|
|
2.1 |
|
Balance at March 31, 2025 |
186.2 |
|
|
$ |
1.9 |
|
|
$ |
3,022.1 |
|
|
$ |
(498.1) |
|
|
$ |
(62.9) |
|
|
(2.5) |
|
|
$ |
(36.4) |
|
|
$ |
2,426.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
Common Stock |
|
Additional Paid-in Capital |
|
Accumulated Deficit |
|
Accumulated Other Comprehensive Loss |
|
Treasury Stock |
|
Total Shareholders’ Equity |
| |
Shares |
|
Amount |
|
|
|
|
Shares |
|
Amount |
|
Balance at December 31, 2025 |
186.2 |
|
|
$ |
1.9 |
|
|
$ |
3,037.5 |
|
|
$ |
(909.5) |
|
|
$ |
(27.6) |
|
|
(2.3) |
|
|
$ |
(33.4) |
|
|
$ |
2,068.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Acquisition of treasury stock |
— |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(3.1) |
|
|
(42.0) |
|
|
(42.0) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Compensatory awards released from restriction |
— |
|
|
— |
|
|
(14.5) |
|
|
— |
|
|
— |
|
|
1.0 |
|
|
14.5 |
|
|
— |
|
| Share-based compensation |
— |
|
|
— |
|
|
6.4 |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
6.4 |
|
| Capital contribution to equity method investments |
— |
|
|
— |
|
|
3.6 |
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
3.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Equity adjustment from foreign currency translation |
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(3.1) |
|
|
— |
|
|
— |
|
|
(3.1) |
|
| Change in fair value of derivative instruments, net of tax |
— |
|
|
— |
|
|
— |
|
|
— |
|
|
0.6 |
|
|
— |
|
|
— |
|
|
0.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Cumulative translation adjustments recognized from the sale of Topgolf |
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(3.6) |
|
|
— |
|
|
— |
|
|
(3.6) |
|
| Net income (loss) |
— |
|
|
— |
|
|
— |
|
|
93.1 |
|
|
— |
|
|
— |
|
|
— |
|
|
93.1 |
|
Balance at March 31, 2026 |
186.2 |
|
|
$ |
1.9 |
|
|
$ |
3,033.0 |
|
|
$ |
(816.4) |
|
|
$ |
(33.7) |
|
|
(4.4) |
|
|
$ |
(60.9) |
|
|
$ |
2,123.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
The accompanying notes are an integral part of these condensed consolidated financial statements.
CALLAWAY GOLF COMPANY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
Note 1. The Company and Basis of Presentation
The Company
Callaway Golf Company (together with its wholly-owned subsidiaries, referred to as “we,” “our,” “us,” “the Company,” or “Callaway” unless otherwise specified), a Delaware corporation, is a premium golf equipment, gear and apparel company that designs, manufactures and sells high-performance golf clubs, golf balls, apparel, bags, and other accessories through our family of brand names, which include Callaway Golf, Odyssey, TravisMathew, and OGIO.
Our products and brands are reported under two operating segments: Golf Equipment, which includes the operations of our golf clubs and golf balls business under the Callaway Golf and Odyssey brand names; and Apparel, Gear and Other (formerly, “Active Lifestyle”), which includes the operations of our soft goods business marketed under the Callaway, TravisMathew, and OGIO brand names.
Basis of Presentation
We have prepared the accompanying condensed consolidated financial statements pursuant to the rules and regulations of the Securities and Exchange Commission (the “SEC”) and accounting principles generally accepted in the United States of America (“GAAP”). We have condensed or omitted certain information and disclosures that are normally included in our annual consolidated financial statements which are prepared in accordance with GAAP. In the opinion of management, these condensed consolidated financial statements include all normal and recurring adjustments necessary for the fair presentation of the financial position, results of operations and cash flows for the periods and dates presented. These unaudited condensed consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto included in our Annual Report on Form 10-K for the year ended December 31, 2025, which was filed with the SEC on February 27, 2026. Interim operating results are not indicative of operating results that may be expected for the year ending December 31, 2026, or any other future periods.
We translate the financial statements of our foreign subsidiaries using end-of-period exchange rates for assets and liabilities and average exchange rates during each reporting period for results of operations. All intercompany balances and transactions have been eliminated during consolidation.
Unless otherwise specified, disclosures in these condensed consolidated financial statements reflect continuing operations only. Prior period financial information related to discontinued operations has been reclassified and separately presented in the condensed consolidated financial statements and accompanying notes to conform to the current period presentation. See Note 3 for further information regarding our discontinued operations.
Fiscal Year End
Our annual financial results are reported on a calendar year basis.
Note 2. Summary of Significant Accounting Policies
Our significant accounting policies are described in Note 2 to our audited consolidated financial statements for the year ended December 31, 2025, which are included in our Annual Report on Form 10-K which was filed with the SEC on February 27, 2026.
Use of Estimates
The preparation of financial statements in conformity with GAAP requires management to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue, expenses and related disclosures. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances at that time. We evaluate our estimates on an ongoing basis to ensure that these estimates appropriately reflect changes in our business or as new information becomes available. Actual results may differ from our estimates.
Recently Issued Accounting Standards
In November 2024, the FASB issued ASU No. 2024-03, “Income Statement—Reporting Comprehensive Income—Expense Disaggregation Disclosures (Subtopic 220-40): Disaggregation of Income Statement Expenses” (“ASU 2024-03”), which requires disclosure, on an annual and interim basis, of specific information about cost and expense related items within the notes to our condensed consolidated financial statements. ASU 2024-03 is effective for fiscal years beginning after December 15, 2026, and interim periods within annual reporting periods beginning after December 15, 2027, on either a prospective or retrospective basis with early adoption permitted. We are in the process of evaluating the impact that ASU 2024-03 will have on our condensed consolidated financial statements and related disclosures.
In September 2025, the FASB issued ASU No. 2025-06, “Intangibles — Goodwill and Other — Internal-Use Software (Subtopic 350-40): Targeted Improvements to the Accounting for Internal-Use Software” (“ASU 2025-06”), which clarifies the difference between expensed costs and capitalized costs by removing all references to software development project stages so that the guidance is neutral to different software development methods, including methods that entities may use to develop software in the future. ASU 2025-06 is effective for fiscal years beginning after December 15, 2027, and interim periods within annual reporting periods beginning after December 15, 2027, with early adoption permitted. We are in the process of evaluating the impact that ASU 2025-06 will have on our condensed consolidated financial statements and related disclosures.
Note 3. Discontinued Operations
Divestiture of the Topgolf Business
Effective January 1, 2026, we completed the sale of a 60% equity interest in the Topgolf and Toptracer businesses (“Topgolf”) to private equity funds managed by Leonard Green & Partners, L.P. based upon an equity value of approximately $1,100.0 million. In connection with the sale and related financing transactions, we received net proceeds of $818.8 million, net of preliminary working capital adjustments and cash retained. In the fourth quarter of 2025, we recorded an estimated loss on sale before income taxes of $143.1 million. During the three months ended March 31, 2026, we recorded net working capital adjustments of $2.5 million, resulting in a total loss on sale of $140.6 million after these adjustments.
The results of operations and cash flows of Topgolf are classified as discontinued operations for all periods presented. Our remaining 40% ownership interest in Topgolf is accounted for under the equity method of accounting. In addition to our 40% equity interest, we have continuing involvement with Topgolf through ongoing commercial agreements (see Note 9) and a transition services agreement.
For the three months ended March 31, 2026, we recognized $1.2 million associated with amounts billed under the transition services agreement with Topgolf, which were recognized in other income on the condensed consolidated statement of operations.
Due to the amendment of our 2023 Term Loan B, which required a mandatory prepayment of $500.0 million in connection with the completion of the sale of Topgolf, we attributed $9.5 million of related interest expense to discontinued operations for the three months ended March 31, 2025.
Divestiture of the Jack Wolfskin Business
On May 31, 2025, pursuant to the Sale & Purchase Agreement dated April 10, 2025, we completed the sale of 100% of the equity interests in Callaway Germany Holdco GmbH, which operated the Jack Wolfskin business, for $290.0 million, net of cash retained, and recorded a $26.2 million loss upon completion of the sale. The operating results of Jack Wolfskin are presented as discontinued operations for all periods presented.
Results of Discontinued Operations
The following is a summary of the results of discontinued operations on the condensed consolidated statement of operations for the periods presented below (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the three months ended March 31, 2026 |
|
|
|
|
|
|
Topgolf |
|
Jack Wolfskin |
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Selling, general and administrative expense |
$ |
(2.7) |
|
|
$ |
— |
|
|
$ |
(2.7) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total costs and expenses |
(2.7) |
|
|
— |
|
|
(2.7) |
|
| Income (loss) from discontinued operations |
2.7 |
|
|
— |
|
|
2.7 |
|
| Interest income (expense), net |
— |
|
|
— |
|
|
— |
|
| Other income (expense), net |
(7.5) |
|
|
— |
|
|
(7.5) |
|
| Income (loss) from discontinued operations before income taxes |
(4.8) |
|
|
— |
|
|
(4.8) |
|
| Income tax provision (benefit) |
(23.0) |
|
|
— |
|
|
(23.0) |
|
| Net income (loss) from discontinued operations |
$ |
18.2 |
|
|
$ |
— |
|
|
$ |
18.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the three months ended March 31, 2025 |
|
|
|
|
|
|
Topgolf |
|
Jack Wolfskin |
|
Total |
| Net revenues: |
|
|
|
|
|
| Products |
$ |
3.6 |
|
|
$ |
69.5 |
|
|
$ |
73.1 |
|
| Services |
390.1 |
|
|
— |
|
|
390.1 |
|
| Total net revenues |
393.7 |
|
|
69.5 |
|
|
463.2 |
|
| Costs and expenses: |
|
|
|
|
|
| Cost of products |
2.2 |
|
|
38.1 |
|
|
40.3 |
|
| Cost of services, excluding depreciation and amortization |
39.1 |
|
|
— |
|
|
39.1 |
|
| Other venue expense |
321.2 |
|
|
— |
|
|
321.2 |
|
| Selling, general and administrative expense |
50.3 |
|
|
43.0 |
|
|
93.3 |
|
| Research and development expense |
4.0 |
|
|
1.4 |
|
|
5.4 |
|
|
|
|
|
|
|
| Venue pre-opening costs |
0.6 |
|
|
— |
|
|
0.6 |
|
| Total costs and expenses |
417.4 |
|
|
82.5 |
|
|
499.9 |
|
| Income (loss) from discontinued operations |
(23.7) |
|
|
(13.0) |
|
|
(36.7) |
|
| Interest income (expense), net |
(43.1) |
|
|
(0.1) |
|
|
(43.2) |
|
| Other income (expense), net |
(0.3) |
|
|
1.1 |
|
|
0.8 |
|
| Income (loss) from discontinued operations before income taxes |
(67.1) |
|
|
(12.0) |
|
|
(79.1) |
|
| Income tax provision (benefit) |
(18.8) |
|
|
1.0 |
|
|
(17.8) |
|
| Net income (loss) from discontinued operations |
$ |
(48.3) |
|
|
$ |
(13.0) |
|
|
$ |
(61.3) |
|
Assets and Liabilities of Discontinued Operations
The following tables summarize the assets and liabilities of discontinued operations on the condensed consolidated balance sheets for the periods presented (in millions). As Jack Wolfskin was sold on May 31, 2025, and the sale of Topgolf was completed effective January 1, 2026, there are no assets or liabilities of discontinued operations as of March 31, 2026.
|
|
|
|
|
|
As of December 31, 2025 |
|
Topgolf |
| Current assets of discontinued operations |
|
|
|
| Accounts receivable |
$ |
4.2 |
|
| Inventories |
37.1 |
|
| Other current assets |
117.2 |
|
| Total current assets of discontinued operations |
158.5 |
|
| Long-term assets of discontinued operations |
|
| Property, plant and equipment, net |
2,072.5 |
|
| Operating lease right-of-use assets, net |
1,066.4 |
|
| Trade names and trademarks |
607.9 |
|
| Other intangible assets, net |
46.5 |
|
| Other assets, net |
218.2 |
|
| Total long-term assets of discontinued operations |
4,011.5 |
|
| Total assets of discontinued operations |
$ |
4,170.0 |
|
| Current liabilities of discontinued operations |
|
| Accounts payable and accrued expenses |
$ |
117.2 |
|
| Accrued employee compensation and benefits |
56.1 |
|
|
|
| Operating lease liabilities, short-term |
59.8 |
|
| Construction advances |
29.1 |
|
| Deferred revenue |
59.7 |
|
| Other current liabilities |
3.1 |
|
| Total current liabilities of discontinued operations |
325.0 |
|
| Long-term liabilities of discontinued operations |
|
Long-term debt, net |
42.8 |
|
| Operating lease liabilities, long-term |
1,102.5 |
|
| Deemed landlord financing obligations |
1,300.7 |
|
| Other long-term liabilities |
342.5 |
|
| Total long-term liabilities of discontinued operations |
2,788.5 |
|
| Total liabilities of discontinued operations |
$ |
3,113.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Note 4. Revenue Recognition
We recognize revenue from the sale of our products. The following table presents our Net sales disaggregated by operating and reportable segment and major category (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
|
|
2026 |
|
2025 |
Net Sales by Operating and Reportable Segment and Major Category |
|
|
|
|
|
|
|
| Golf Equipment: |
|
|
|
|
|
|
|
| Golf clubs |
|
|
|
|
$ |
380.6 |
|
|
$ |
340.0 |
|
| Golf balls |
|
|
|
|
105.6 |
|
|
103.9 |
|
| Total Golf Equipment |
|
|
|
|
$ |
486.2 |
|
|
$ |
443.9 |
|
|
|
|
|
|
|
|
|
| Apparel, Gear and Other: |
|
|
|
|
|
|
|
| Apparel |
|
|
|
|
$ |
102.7 |
|
|
$ |
98.0 |
|
| Gear, accessories & other |
|
|
|
|
98.6 |
|
|
87.7 |
|
| Total Apparel, Gear and Other |
|
|
|
|
$ |
201.3 |
|
|
$ |
185.7 |
|
|
|
|
|
|
|
|
|
| Total Consolidated |
|
|
|
|
$ |
687.5 |
|
|
$ |
629.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales
We sell our Golf Equipment products and Apparel, Gear and Other products in the United States and internationally, with our principal international regions being Europe and Asia. Golf Equipment product sales are generally higher than Apparel, Gear and Other sales in all regions.
The following table summarizes sales by geographical region (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
|
|
2026 |
|
2025 |
Net Sales by Major Geographic Region: |
|
|
|
|
|
|
|
| United States |
|
|
|
|
$ |
448.8 |
|
|
$ |
416.1 |
|
| Europe |
|
|
|
|
83.2 |
|
|
64.3 |
|
| Asia |
|
|
|
|
103.6 |
|
|
106.8 |
|
| Rest of World |
|
|
|
|
51.9 |
|
|
42.4 |
|
| Total Consolidated |
|
|
|
|
$ |
687.5 |
|
|
$ |
629.6 |
|
Licensing and royalties
We have licensing and royalty income from licensing agreements for apparel and soft good products in our Apparel, Gear and Other operating segment. The following table summarizes the licensing and royalty income recognized in Net sales for the periods presented (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
|
|
2026 |
|
2025 |
| Apparel, Gear and Other |
|
|
|
|
$ |
9.0 |
|
|
$ |
7.1 |
|
Deferred revenue
Our short-term deferred revenue balance consists primarily of revenue from the sale of gift cards and accrued customer loyalty points.
The following table provides a reconciliation of activity related to our short-term deferred revenue balance for the periods presented (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
|
|
2026 |
|
2025 |
Beginning Balance (1) |
|
|
|
|
$ |
21.5 |
|
|
$ |
15.9 |
|
| Deferral of revenue |
|
|
|
|
6.7 |
|
|
5.5 |
|
| Revenue recognized |
|
|
|
|
(12.7) |
|
|
(5.3) |
|
|
|
|
|
|
|
|
|
Foreign currency translation and other |
|
|
|
|
— |
|
|
0.1 |
|
| Ending Balance |
|
|
|
|
$ |
15.5 |
|
|
$ |
16.2 |
|
(1) Beginning balances for the three months ended March 31, 2026 and 2025 represent ending balances as of December 31, 2025 and 2024, respectively. |
Deferred revenue recognized during the three months ended March 31, 2026 and 2025 from gift card redemptions that were included in the deferred revenue balance at the end of the prior year period was $1.3 million and $1.4 million, respectively. The increase in revenue recognized during the three months ended March 31, 2026, reflects a transition to a new customer loyalty program related to our TravisMathew business, which resulted in the recognition of $5.8 million of revenue related to expired loyalty points during the quarter.
Variable Consideration
We recognize revenue based on the amount of consideration we expect to receive from customers for the sale of our products adjusted for estimates of variable consideration related to sales returns, discounts and allowances, sales promotions and sales programs, and price concessions. These estimates are based on the amounts earned or expected to be claimed by customers.
As of March 31, 2026 and December 31, 2025, the balances for our short-term sales incentive program included in Accounts receivable, net on our condensed consolidated balance sheets, were $19.7 million and $15.0 million, respectively.
As of March 31, 2026 and December 31, 2025, the balances for our sales return reserve included in Accounts receivable, net on our condensed consolidated balance sheets, were $83.9 million and $64.2 million, respectively. For these periods, the related cost recovery balances of inventory associated with the sales return liability included in Other current assets on our condensed consolidated balance sheets, were $36.6 million and $30.4 million, respectively.
Note 5. Leases
Operating leases and financing leases
Supplemental balance sheet information related to our operating and financing right of use (“ROU”) assets and lease liabilities is as follows (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance Sheet Location |
|
March 31, 2026 |
|
December 31, 2025 |
| Assets |
|
|
|
|
|
| Operating lease ROU assets, net |
Operating lease ROU assets, net |
|
$ |
164.5 |
|
|
$ |
173.5 |
|
| Financing lease ROU assets, net |
Other assets, net |
|
$ |
1.0 |
|
|
$ |
0.7 |
|
|
|
|
|
|
|
| Liabilities |
|
|
|
|
|
| Current |
|
|
|
|
|
| Operating lease liabilities, short-term |
Operating lease liabilities, short-term |
|
$ |
22.6 |
|
|
$ |
22.9 |
|
| Financing lease liabilities, short-term |
Accounts payable and accrued expenses |
|
$ |
0.3 |
|
|
$ |
0.3 |
|
|
|
|
|
|
|
| Non-current |
|
|
|
|
|
| Operating lease liabilities, long-term |
Operating lease liabilities, long-term |
|
$ |
181.1 |
|
|
$ |
189.7 |
|
| Financing lease liabilities, long-term |
Other long-term liabilities |
|
$ |
0.8 |
|
|
$ |
0.5 |
|
Lease Termination Incentive
During the three months ended March 31, 2025, we signed an agreement with the landlord of our Japanese subsidiary’s headquarters to terminate a lease prior to its original end date in exchange for a cash incentive of 1,800.0 million Yen (approximately $12.0 million). As a result, we recognized a $12.0 million gain on lease termination, which was recorded within selling, general and administrative expenses in our condensed consolidated statement of operations.
The components of lease expense, excluding the impact from the lease termination incentive, included in our condensed consolidated statement of operations for the periods presented below are as follows (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
|
2026 |
|
2025 |
|
|
|
|
|
|
|
|
Operating lease costs |
|
|
|
|
$ |
9.0 |
|
|
$ |
8.1 |
|
|
|
|
|
|
|
|
|
Financing lease costs |
|
|
|
|
0.1 |
|
|
0.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Variable lease costs |
|
|
|
|
0.4 |
|
|
0.3 |
|
| Total lease costs |
|
|
|
|
$ |
9.5 |
|
|
$ |
8.5 |
|
|
|
|
|
|
|
|
|
Other information related to leases (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
| Supplemental Cash Flows Information |
|
2026 |
|
2025 |
|
|
|
| Cash paid for amounts included in the measurement of lease liabilities: |
|
|
|
|
|
|
|
| Operating cash flows from operating leases |
|
$ |
9.5 |
|
|
$ |
7.6 |
|
|
|
|
|
|
|
|
|
|
|
|
| Financing cash flows from finance leases |
|
$ |
0.1 |
|
|
$ |
0.1 |
|
|
|
|
|
|
|
|
|
|
|
|
| Lease liabilities arising from new ROU assets: |
|
|
|
|
|
|
|
| Operating leases |
|
$ |
5.9 |
|
|
$ |
15.1 |
|
|
|
|
| Financing leases |
|
$ |
0.4 |
|
|
$ |
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2026 |
|
December 31, 2025 |
| Weighted-average remaining lease term (years): |
|
|
|
| Operating leases |
9.0 |
|
9.4 |
| Financing leases |
3.8 |
|
3.4 |
|
|
|
|
| Weighted-average discount rate: |
|
|
|
| Operating leases |
6.8 |
% |
|
6.8 |
% |
| Financing leases |
6.2 |
% |
|
7.1 |
% |
As of March 31, 2026, our future minimum lease obligations were as follows (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating Leases |
|
Financing Leases |
|
Total |
| Remainder of 2026 |
$ |
26.5 |
|
|
$ |
0.3 |
|
|
$ |
26.8 |
|
| 2027 |
34.4 |
|
|
0.3 |
|
|
34.7 |
|
| 2028 |
32.5 |
|
|
0.2 |
|
|
32.7 |
|
| 2029 |
31.5 |
|
|
0.2 |
|
|
31.7 |
|
| 2030 |
27.6 |
|
|
0.2 |
|
|
27.8 |
|
| Thereafter |
129.5 |
|
|
— |
|
|
129.5 |
|
| Total future lease payments |
282.0 |
|
|
1.2 |
|
|
283.2 |
|
| Less: imputed interest |
78.3 |
|
|
0.1 |
|
|
78.4 |
|
| Total |
$ |
203.7 |
|
|
$ |
1.1 |
|
|
$ |
204.8 |
|
Note 6. Financing Arrangements
Our credit facilities and long-term debt obligations are summarized as follows (in millions, except interest rates):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, |
|
December 31, |
|
|
Maturity Date |
|
Interest Rate |
|
2026 |
|
2025 |
| Short-Term Credit Facilities |
|
|
|
|
|
|
|
|
2023 ABL Credit Facility |
|
March 16, 2028 |
|
5.16% |
|
$ |
— |
|
|
$ |
— |
|
| 2025 Japan ABL Credit Facility |
|
January 21, 2028 |
|
1.69% |
|
44.1 |
|
|
44.7 |
|
| Total Principal Amount |
|
|
|
|
|
$ |
44.1 |
|
|
$ |
44.7 |
|
| Unamortized Debt Issuance Costs |
|
|
|
|
|
$ |
2.3 |
|
|
$ |
2.6 |
|
|
|
|
|
|
|
|
|
|
|
|
Balance Sheet Location |
|
|
|
|
|
|
| ABL Credit Facilities |
|
Asset-based credit facilities |
|
|
|
$ |
44.1 |
|
|
$ |
44.7 |
|
| Unamortized Debt Issuance Costs - Current |
|
Prepaid expenses |
|
|
|
$ |
1.2 |
|
|
$ |
1.2 |
|
| Unamortized Debt Issuance Costs - Non-current |
|
Other assets, net |
|
|
|
$ |
1.1 |
|
|
$ |
1.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, |
|
December 31, |
|
|
Maturity Date |
|
Interest Rate |
|
2026 |
|
2025 |
| Long-Term Debt and Credit Facilities |
|
|
|
|
|
|
| 2023 Term Loan B |
|
March 16, 2030 |
|
6.42% |
|
$ |
162.5 |
|
|
$ |
1,165.6 |
|
| Convertible Notes |
|
May 1, 2026 |
|
2.75% |
|
258.3 |
|
|
258.3 |
|
| Equipment Notes |
|
December 15, 2026 - December 21, 2027 |
|
2.36% - 5.93% |
|
5.3 |
|
|
6.5 |
|
| Financed Tenant Improvements |
|
February 1, 2035 - September 1, 2035 |
|
8.00% - 10.00% |
|
3.6 |
|
|
3.6 |
|
| Total Principal Amount |
|
|
|
|
|
$ |
429.7 |
|
|
$ |
1,434.0 |
|
| Less: Unamortized Debt Issuance Costs |
|
|
|
2.4 |
|
|
18.0 |
|
| Total Debt, net of Unamortized Debt Issuance Costs |
|
|
|
$ |
427.3 |
|
|
$ |
1,416.0 |
|
|
|
|
|
|
|
|
|
|
|
|
Balance Sheet Location |
|
|
|
|
|
|
| Long-Term Debt - Current |
|
Long-term debt, current portion |
|
|
|
$ |
274.4 |
|
|
$ |
765.3 |
|
| Long-Term Debt - Non-current |
|
Long-term debt |
|
|
|
152.9 |
|
|
650.7 |
|
| Total Debt, net of Unamortized Debt Issuance Costs |
|
|
|
$ |
427.3 |
|
|
$ |
1,416.0 |
|
|
|
|
Total interest and amortization expense related to our credit facilities and long-term debt obligations, which is included in “Interest expense, net” in our condensed consolidated statement of operations, is summarized as follows (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
|
|
2026 |
|
2025 |
| Short-Term Credit Facilities |
|
|
|
|
|
|
|
| 2025 Japan ABL Credit Facility |
|
|
|
|
$ |
0.2 |
|
|
$ |
0.1 |
|
| 2023 ABL Credit Facility |
|
|
|
|
0.2 |
|
|
0.3 |
|
| Total |
|
|
|
|
$ |
0.4 |
|
|
$ |
0.4 |
|
|
|
|
|
|
|
|
|
| Long-Term Debt and Credit Facilities |
|
|
|
|
|
|
|
| 2023 Term Loan B |
|
|
|
|
$ |
3.0 |
|
|
$ |
12.9 |
|
| Convertible Notes |
|
|
|
|
1.8 |
|
|
1.8 |
|
| Equipment Notes |
|
|
|
|
0.1 |
|
|
0.1 |
|
| Financed Tenant Improvements |
|
|
|
|
0.1 |
|
|
0.1 |
|
| Total |
|
|
|
|
$ |
5.0 |
|
|
$ |
14.9 |
|
|
Short-Term Credit Facilities and Available Liquidity
2025 Japan ABL Credit Facility & 2023 ABL Credit Facility
Our 2025 Japan ABL Credit Facility provides a line of credit to our Japan subsidiary of up to 9,000.0 million Yen (or approximately $56.7 million using the exchange rate in effect as of March 31, 2026), and our 2023 ABL Credit Facility has an aggregate principal amount of up to $485.0 million. Both facilities are subject to certain restrictions and covenants related to pledged collateral and financial performance, and, among other things, include provisions that limit certain financing and operational activities and require ongoing compliance with specified performance‑based or availability‑related conditions, as applicable under the respective agreements. In addition, the 2023 ABL Credit Facility requires compliance with a minimum fixed charge coverage ratio of 1.0 to 1.0 during periods in which the borrowing base availability falls below 10% of the maximum aggregate principal amount of the facility.
As of March 31, 2026, we were in compliance with the covenants and other requirements applicable under the 2025 Japan ABL Credit Facility and the 2023 ABL Credit Facility.
Consolidated Available Liquidity
As of March 31, 2026, our consolidated available liquidity, which is comprised of cash on hand and amounts available under our short-term credit facilities, less outstanding letters of credit and outstanding borrowings, was $996.0 million. Our average availability and weighted-average interest rate under our 2023 ABL Credit Facility and 2025 Japan ABL Credit Facility were as follows for the periods presented (in millions except interest rates):
|
|
|
|
|
|
|
March 31, 2026 |
| 2023 ABL Credit Facility |
|
| Average availability |
$ |
405.7 |
|
| Weighted-average interest rate |
7.80 |
% |
|
|
| 2025 Japan ABL Credit Facility |
|
| Average availability |
$ |
13.3 |
|
| Weighted-average interest rate |
1.40 |
% |
Long-Term Debt and Credit Facilities
2023 Term Loan B
Our 2023 Term Loan B includes customary affirmative and negative covenants, including restrictions on additional indebtedness, liens, dividends and other restricted payments, asset sales, investments, mergers, acquisitions and affiliate transactions, as well as customary events of default, and is not subject to any financial covenants. On December 1, 2025, in connection with the sale of the Topgolf business, the 2023 Term Loan B was amended to designate certain Topgolf entities as unrestricted subsidiaries and release them as guarantors, amend certain definitions and covenant provisions, and require a $500.0 million mandatory partial repayment upon consummation of the sale. On January 2, 2026, in connection with the completion of the sale of Topgolf, we made the $500.0 million mandatory repayment as well as an additional discretionary partial repayment of $500.0 million, resulting in total partial repayments of $1,000.0 million under the 2023 Term Loan B. In conjunction with the repayment, we wrote off $15.0 million of unamortized debt issuance costs and debt discounts. Of this amount, $7.5 million was allocated to continuing operations and was recognized in other income (expense), net on the condensed consolidated statement of operations. The remaining $7.5 million was allocated to discontinued operations and represents the portion of the write‑off related to the mandatory prepayment of the loan required upon completion of the Topgolf sale.
As of March 31, 2026, we were in compliance with the covenants and other requirements applicable under the 2023 Term Loan B.
Convertible Notes & Capped Call
As of March 31, 2026, we had Convertible Notes outstanding which were convertible into shares of our common stock at an initial conversion rate of 56.8 shares per $1,000 of principal (equivalent to a conversion price of $17.62 per share) and bore interest payable semi‑annually on May 1 and November 1. The Convertible Notes allowed for settlement in cash, shares, or a combination thereof at our election, and were convertible at the holders’ option upon the occurrence of certain contingent conversion events beginning February 1, 2026. The Convertible Notes matured on May 1, 2026 and are classified in current liabilities on our condensed consolidated balance sheet as of March 31, 2026.
In connection with the Convertible Notes, we entered into capped call transactions that covered the shares initially underlying the Convertible Notes and were intended to reduce potential dilution and/or offset cash payments upon conversion. The capped calls had an exercise price of $17.62 per share and a cap price of $23.71 per share, were subject to customary adjustments, and were recorded as a reduction to additional paid‑in capital.
On May 1, 2026, we settled our outstanding Convertible Notes for cash at maturity in accordance with their terms, including the payment of accrued and unpaid interest. The settlement was completed entirely in cash, and no shares of common stock were issued. In connection with the settlement, the related capped call transactions expired unexercised.
Equipment Notes
We have long-term financing agreements (the “Equipment Notes”) with various lenders related to various capital investments in certain facilities and information technology equipment. The loans are secured by the relative underlying equipment.
Aggregate Amount of Long-Term Debt Maturities
The following table presents our combined aggregate amount of maturities for our long-term debt over the next five years and thereafter as of March 31, 2026 (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
Remainder of 2026 (1) |
|
$ |
271.3 |
|
| 2027 |
|
14.7 |
|
| 2028 |
|
12.8 |
|
| 2029 |
|
12.8 |
|
| 2030 |
|
116.1 |
|
| Thereafter |
|
2.0 |
|
| Total aggregate amount of maturities |
|
$ |
429.7 |
|
| Less: Unamortized debt issuance costs |
|
2.4 |
|
| Total aggregate amount of maturities, net of unamortized debt issuance costs |
|
$ |
427.3 |
|
|
|
|
(1) Includes $258.3 million of convertible notes which matured on May 1, 2026 and were settled in cash. |
Note 7. Earnings (Loss) Per Common Share
The following table summarizes the computation of basic and diluted earnings per common share for the periods presented (in millions, except per share data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
| |
|
|
|
|
2026 |
|
2025 |
| Earnings (loss) per common share—basic |
|
|
|
|
|
|
|
| Numerator: |
|
|
|
|
|
|
|
| Net income (loss) from continuing operations |
|
|
|
|
$ |
74.9 |
|
|
$ |
63.4 |
|
| Income (loss) from discontinued operations, net of tax |
|
|
|
|
18.2 |
|
|
(61.3) |
|
| Net income (loss) |
|
|
|
|
$ |
93.1 |
|
|
$ |
2.1 |
|
| Denominator: |
|
|
|
|
|
|
|
| Weighted-average common shares outstanding |
|
|
|
|
183.7 |
|
|
183.4 |
|
| Basic earnings (loss) per common share: |
|
|
|
|
|
|
|
| Continuing operations |
|
|
|
|
$ |
0.41 |
|
|
$ |
0.35 |
|
| Discontinued operations |
|
|
|
|
$ |
0.10 |
|
|
$ |
(0.33) |
|
| Net earnings (loss) per common share |
|
|
|
|
$ |
0.51 |
|
|
$ |
0.01 |
|
| Earnings (loss) per common share—diluted |
|
|
|
|
|
|
|
| Numerator: |
|
|
|
|
|
|
|
| Net income (loss) from continuing operations |
|
|
|
|
$ |
74.9 |
|
|
$ |
63.4 |
|
Add: Interest expense attributable to Convertible Notes, net of tax |
|
|
|
|
1.6 |
|
|
1.6 |
|
| Income (loss) from continuing operations and assumed conversions |
|
|
|
|
76.5 |
|
|
65.0 |
|
| Income (loss) from discontinued operations, net of tax |
|
|
|
|
18.2 |
|
|
(61.3) |
|
Net income (loss) attributable to earnings per common share |
|
|
|
|
$ |
94.7 |
|
|
$ |
3.7 |
|
| Denominator: |
|
|
|
|
|
|
|
| Weighted-average common shares outstanding—basic |
|
|
|
|
183.7 |
|
|
183.4 |
|
| Incremental shares for assumed conversion of Convertible Notes |
|
|
|
|
14.7 |
|
|
14.7 |
|
| Outstanding options, restricted stock units and performance share units |
|
|
|
|
4.3 |
|
|
0.1 |
|
| Weighted-average common shares outstanding—diluted |
|
|
|
|
202.7 |
|
|
198.2 |
|
| Diluted earnings (loss) per common share: |
|
|
|
|
|
|
|
| Continuing operations |
|
|
|
|
$ |
0.38 |
|
|
$ |
0.33 |
|
| Discontinued operations |
|
|
|
|
$ |
0.09 |
|
|
$ |
(0.31) |
|
| Net diluted earnings (loss) per common share |
|
|
|
|
$ |
0.47 |
|
|
$ |
0.02 |
|
Anti-Dilutive Securities
For the three months ended March 31, 2026 and 2025, approximately 0.5 million and 3.2 million securities outstanding, respectively, comprised of stock options and restricted stock units were excluded from the calculation of diluted earnings per common share as they would be anti-dilutive.
Note 8. Goodwill and Intangible Assets
Changes in the carrying amount of goodwill by operating and reportable segment are as follows (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Golf Equipment |
|
Apparel, Gear and Other |
|
Total |
| Balance at December 31, 2025 |
|
$ |
531.5 |
|
|
$ |
88.3 |
|
|
$ |
619.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Foreign currency translation and other |
|
(0.2) |
|
|
— |
|
|
(0.2) |
|
| Balance at March 31, 2026 |
|
$ |
531.3 |
|
|
$ |
88.3 |
|
|
$ |
619.6 |
|
Intangible assets by major asset class are as follows (in millions, except useful life amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Indefinite-lived: |
Amortizing: |
|
|
|
| |
Trade names and Trademarks |
|
Patents |
|
Customer/ Distributor Relationships and Other |
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Useful Life (Years) |
NA |
|
2-16 |
|
1-10 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Gross as of December 31, 2025 |
$ |
218.8 |
|
|
$ |
31.9 |
|
|
$ |
24.2 |
|
|
$ |
274.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Disposals |
— |
|
|
— |
|
|
(0.1) |
|
|
(0.1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Gross as of March 31, 2026 |
$ |
218.8 |
|
|
$ |
31.9 |
|
|
$ |
24.1 |
|
|
$ |
274.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
| Accumulated amortization |
— |
|
|
(31.6) |
|
|
(21.0) |
|
|
(52.6) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Foreign currency and other |
— |
|
|
— |
|
|
(0.1) |
|
|
(0.1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net book value, March 31, 2026 |
$ |
218.8 |
|
|
$ |
0.3 |
|
|
$ |
3.0 |
|
|
$ |
222.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Gross as of December 31, 2025 |
$ |
218.8 |
|
|
$ |
31.9 |
|
|
$ |
24.2 |
|
|
$ |
274.9 |
|
|
|
|
|
|
|
|
|
|
|
|
|
| Accumulated amortization |
— |
|
|
(31.6) |
|
|
(20.8) |
|
|
(52.4) |
|
|
|
|
|
|
|
|
|
|
|
|
|
| Foreign currency and other |
— |
|
|
— |
|
|
(0.1) |
|
|
(0.1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net book value, December 31, 2025 |
$ |
218.8 |
|
|
$ |
0.3 |
|
|
$ |
3.3 |
|
|
$ |
222.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
We recognized $0.2 million of amortization expense related to acquired intangible assets for each of the three months ended March 31, 2026 and 2025, which is primarily recorded in selling, general and administrative expenses in the condensed consolidated statements of operations.
As of March 31, 2026, intangible asset amortization expense is expected to be incurred for the periods presented as follows (in millions):
|
|
|
|
|
|
| Remainder of 2026 |
$ |
0.7 |
|
| 2027 |
0.6 |
|
| 2028 |
0.3 |
|
| 2029 |
0.3 |
|
|
|
|
|
| Total |
$ |
1.9 |
|
Note 9. Investments
Investment in Topgolf
Upon completion of the sale of our 60% ownership interest in Topgolf effective January 1, 2026, we retained a 40% non-controlling interest with an initial value of $248.5 million. The retained investment is accounted for under the equity method and was recorded at fair value using Level 3 inputs based on the equity value of Topgolf which was derived from the transaction price and adjusted for working capital and other transaction specific adjustments. The carrying amount of the investment is subsequently adjusted to reflect our proportionate share of Topgolf’s income or losses and dividends and distributions received.
The following table presents summarized information for Topgolf for the periods presented (amounts in millions). Amounts presented represent the results of operations of Topgolf and do not represent our proportionate share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
|
|
2026 |
|
|
| Net revenues |
|
|
|
|
$ |
391.7 |
|
|
|
| Depreciation and amortization expense |
|
|
|
|
52.9 |
|
|
|
| Income (loss) from operations |
|
|
|
|
(21.0) |
|
|
|
| Interest expense |
|
|
|
|
47.8 |
|
|
|
| Net income (loss) |
|
|
|
|
(69.2) |
|
|
|
For the three months ended March 31, 2026, we recognized $27.7 million of equity method investment loss for our 40% share of Topgolf’s earnings, which is recorded in Income (loss) from equity method investments in the condensed consolidated statement of operations. As of March 31, 2026, the carrying value of our investment in Topgolf was $221.2 million and is included in Equity method investments on our condensed consolidated balance sheets.
For the three months ended March 31, 2026, we recognized $3.2 million in net sales for products sold under our commercial agreement with Topgolf. Intra-entity profits on certain sales transactions with Topgolf are eliminated until realized by the Company. As of March 31, 2026, we had $2.6 million in open receivables due from Topgolf related to product sales and services under the commercial and transition service agreements.
Investment in Full Swing
We have an ownership interest of less than 20.0% in Full Swing Golf Holdings, LLC (“Full Swing”), owners of multi-sport indoor virtualization and simulation technology. The initial investment is accounted for at cost and is subsequently adjusted for observable changes in fair value or impairments. As of both March 31, 2026 and December 31, 2025, the carrying value of our investment in Full Swing was $9.3 million, and is included in Other assets, net on our condensed consolidated balance sheets.
Investment in Five Iron Golf
We have an ownership interest of less than 20.0% in The Range NYC, LLC (“Five Iron Golf”), an urban indoor golf experience company which hosts a golf simulation technology and serves food and beverage. The initial investment is accounted for at cost and is subsequently adjusted for observable changes in fair value or impairments. During the three months ended March 31, 2026, we recognized a $4.5 million fair value step-up in our investment based on Level 3 inputs related to an observable market transaction that occurred during the first quarter of 2026. As of March 31, 2026 and December 31, 2025, the carrying value of our investment in Five Iron Golf was $38.4 million and $33.9 million, respectively, and is included in Other assets, net on our condensed consolidated balance sheets.
Other Investments
In addition to the investments above, as of March 31, 2026 and December 31, 2025, we had other investments of approximately $4.7 million and $4.4 million, respectively, which are classified in Other assets, net on our condensed consolidated balance sheets. The investments are accounted for at cost less impairments and are adjusted for observable changes in fair value.
Note 10. Selected Financial Data
Selected financial data as of the dates presented below is as follows (in millions, except useful life data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2026 |
|
December 31, 2025 |
| Inventories: |
|
|
|
|
|
| Finished goods |
|
|
$ |
493.1 |
|
|
$ |
517.4 |
|
| Work in process |
|
|
0.8 |
|
|
0.7 |
|
| Raw materials |
|
|
102.5 |
|
|
107.2 |
|
| Total inventories |
|
|
$ |
596.4 |
|
|
$ |
625.3 |
|
|
|
|
|
|
|
|
|
|
March 31, 2026 |
|
December 31, 2025 |
| Other current assets: |
|
|
|
|
|
| Credit card and other receivables |
|
|
$ |
26.2 |
|
|
$ |
24.0 |
|
| Sales return reserve cost recovery asset |
|
|
36.6 |
|
|
30.4 |
|
| Taxes receivable |
|
|
18.9 |
|
|
14.7 |
|
| Other |
|
|
8.4 |
|
|
0.7 |
|
| Total other current assets |
|
|
$ |
90.1 |
|
|
$ |
69.8 |
|
|
|
|
|
|
|
|
Estimated Useful Life |
|
March 31, 2026 |
|
December 31, 2025 |
| Property, plant and equipment, net: |
|
|
|
|
|
| Land |
|
|
$ |
7.2 |
|
|
$ |
7.2 |
|
| Buildings and leasehold improvements |
3 - 30 years |
|
156.7 |
|
|
154.5 |
|
| Machinery and equipment |
3 - 15 years |
|
159.8 |
|
|
159.4 |
|
| Furniture, computer hardware and equipment |
3 - 5 years |
|
123.2 |
|
|
127.6 |
|
| Internal-use software |
3 - 5 years |
|
39.7 |
|
|
39.8 |
|
| Production molds |
2 - 5 years |
|
11.3 |
|
|
11.4 |
|
| Construction-in-process |
|
|
9.2 |
|
|
6.6 |
|
| Total property, plant, and equipment, gross |
|
|
507.1 |
|
|
506.5 |
|
| Less: Accumulated depreciation |
|
|
350.9 |
|
|
347.0 |
|
| Total property, plant, and equipment, net |
|
|
$ |
156.2 |
|
|
$ |
159.5 |
|
|
For the three months ended March 31, 2026 and 2025, we recorded total depreciation expense of $10.6 million and $11.5 million, respectively, in our condensed consolidated statements of operations. Depreciation expense is recognized in Cost of sales, Research and development expense, and Selling, general and administrative expense on the condensed consolidated statement of operations, consistent with the use of the underlying asset.
|
|
|
|
|
|
|
|
|
|
|
|
| (in millions) |
March 31, 2026 |
|
December 31, 2025 |
| Accounts payable and accrued expenses: |
|
|
|
| Accounts payable |
$ |
107.5 |
|
|
$ |
109.6 |
|
| Accrued expenses |
116.5 |
|
|
89.9 |
|
| Accrued inventory |
58.9 |
|
|
96.7 |
|
| Total accounts payable and accrued expenses |
$ |
282.9 |
|
|
$ |
296.2 |
|
|
Note 11. Income Taxes
We calculate our interim income tax provision in accordance with ASC Topic 270, “Interim Reporting,” and ASC Topic 740, “Accounting for Income Taxes.” At the end of each interim period, we estimate our annual effective tax rate and apply that rate to our ordinary quarterly earnings to calculate the tax related to ordinary income. The tax effects for other items that are excluded from ordinary income are discretely calculated and recognized in the period in which they occur.
We recorded an income tax provision of $32.7 million and $27.2 million for the three months ended March 31, 2026 and 2025, respectively. As a percentage of pre-tax income, our effective tax rate was 30.4% and 30.0% for the three months ended March 31, 2026 and 2025, respectively. For the three months ended March 31, 2026, the difference between the statutory tax rate and the effective tax rate is primarily due to the impacts of valuation allowances related to our investment in Topgolf. For the three months ended March 31, 2025, the difference between the statutory tax rate and the effective tax rate is primarily due to minimum taxes on our foreign earnings and discrete tax adjustments related to share-based compensation.
As of March 31, 2026, the gross liability for income taxes associated with uncertain tax positions was $18.6 million. Of this amount, $10.2 million would benefit our condensed consolidated financial statements and effective income tax rate if favorably settled. We recognize interest and penalties related to income tax matters in income tax expense.
Note 12. Commitments & Contingencies
Legal Matters
We are subject to routine legal claims, proceedings, and investigations associated with the normal conduct of our business activities, including commercial disputes and employment matters. We also receive from time-to-time information claiming that products we sell infringe or may infringe patent, trademark, or other intellectual property rights of third parties. One or more such claims of potential infringement could lead to litigation, the need to obtain licenses, the need to alter a product to avoid infringement, a settlement or judgment, or some other action or material loss, which could adversely affect our overall ability to protect our product designs and ultimately limit our future success in the marketplace. Additionally, we are occasionally subject to non-routine claims, proceedings, or investigations.
We regularly assess such matters to determine the degree of probability that we will incur a material loss as a result of such matters, as well as the range of possible loss. An estimated loss contingency is accrued in our financial statements if it is probable we will incur a loss, and the amount of the loss can be reasonably estimated. Historically, the claims, proceedings, and investigations brought against us, individually and in the aggregate, have not had a material adverse effect on our condensed consolidated results of operations, cash flows or financial position. While it is not possible to predict the outcome of the pending actions, and, as with any litigation, it is possible that some of these actions could be decided unfavorably, we do not believe that the matters currently pending against us will have a material adverse effect on our business, condensed consolidated results of operations, cash flows or financial position.
Commitments
During the normal course of our business, we enter into agreements to purchase goods and services, including commitments for endorsement agreements with professional athletes and other endorsers, consulting and service agreements, intellectual property licensing agreements pursuant to which we are required to pay royalty fees, and signed retail lease agreements of which we have not taken possession as of period-end. The amounts listed below approximate the minimum future commitments we are obligated to pay under these agreements. The actual amounts paid under some of the agreements may be higher or lower than these amounts due to the variable nature of these obligations.
As of March 31, 2026, the minimum obligation we are required to pay under these agreements over the next five years and thereafter is as follows (in millions):
|
|
|
|
|
|
| Remainder of 2026 |
$ |
52.9 |
|
| 2027 |
30.6 |
|
| 2028 |
14.8 |
|
| 2029 |
1.3 |
|
| 2030 |
1.0 |
|
| Thereafter |
6.2 |
|
| Total |
$ |
106.8 |
|
Other Contingent Contractual Obligations
During the normal course of business, we have made certain indemnities, commitments and guarantees under which we may be required to make payments in relation to certain transactions. The duration of these indemnities, commitments and guarantees varies, and in certain cases, may be indefinite and the majority of these indemnities, commitments and guarantees do not provide for any limitation on the maximum amount of future payments we could be obligated to make. Historically, costs incurred to settle claims related to indemnities have not been material to our financial position, results of operations or cash flows. In addition, we believe the likelihood is remote that payments under the commitments and guarantees described above will have a material effect on our condensed consolidated financial statements. The fair value of indemnities, commitments and guarantees that we issued during the three months ended, and as of March 31, 2026, were not material to our financial position, results of operations or cash flows.
We have also made certain indemnities under which we may be required to make payments in relation to divestitures of the Topgolf and Jack Wolfskin businesses. These include indemnities against (i) damages arising from certain ongoing litigation matters, (ii) certain exempted claims and (iii) certain pre-closing tax and other liabilities. As of March 31, 2026, we have $3.2 million of indemnities recorded related to the disposals of our businesses (see Note 3), which are reported in Other long-term liabilities on the condensed consolidated balance sheet.
Note 13. Share-Based Compensation
Share-Based Awards Granted
We granted the following awards under our stock compensation plans during the periods presented (in millions, except per share data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
|
|
2026 |
|
2025 |
|
|
|
|
|
|
|
Shares Granted |
Weighted-average grant date fair value per share |
|
Shares Granted(1) |
Weighted-average grant date fair value per share |
|
|
|
|
|
|
|
|
|
|
|
|
| Restricted stock units |
|
|
|
|
|
|
0.6 |
|
$ |
13.71 |
|
|
2.2 |
|
$ |
6.17 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Performance based restricted share unit awards(2) |
|
|
|
|
|
|
0.7 |
|
$ |
21.27 |
|
|
1.7 |
|
$ |
8.57 |
|
| Total |
|
|
|
|
|
|
1.3 |
|
|
|
3.9 |
|
|
(1) Shares granted during fiscal year 2025 include awards granted to employees of our discontinued operations which will continue to vest in accordance with the original terms of the respective awards. |
(2) Weighted-average grant date fair value per share determined using Monte-Carlo valuation method. |
Share-Based Compensation Expense
Share-based compensation expense by award-type, net of estimated forfeitures, recognized in the condensed consolidated statement of operations for the periods presented was (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
|
|
|
2026 |
|
2025 |
|
|
|
|
|
|
|
|
|
| Restricted stock units |
|
|
|
|
|
$ |
3.0 |
|
|
$ |
2.1 |
|
|
|
|
|
|
|
|
|
|
| Performance based restricted share unit awards |
|
|
|
|
|
3.4 |
|
|
3.8 |
|
|
|
|
|
|
|
|
|
|
| Share-based compensation expense, before tax |
|
|
|
|
|
6.4 |
|
|
5.9 |
|
| Income tax benefit |
|
|
|
|
|
(1.5) |
|
|
(1.4) |
|
| Share-based compensation expense, after tax |
|
|
|
|
|
$ |
4.9 |
|
|
$ |
4.5 |
|
Share-based compensation, net of estimated forfeitures, recognized in the condensed consolidated statement of operations for the periods presented was (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
|
|
|
2026 |
|
2025 |
| Cost of sales |
|
|
|
|
|
$ |
0.5 |
|
|
$ |
0.3 |
|
| Selling, general and administrative expense |
|
|
|
|
|
5.8 |
|
|
5.5 |
|
| Research and development expense |
|
|
|
|
|
0.1 |
|
|
0.1 |
|
| Share-based compensation expense, before tax |
|
|
|
|
|
6.4 |
|
|
5.9 |
|
| Income tax benefit |
|
|
|
|
|
(1.5) |
|
|
(1.4) |
|
| Share-based compensation expense, after tax |
|
|
|
|
|
$ |
4.9 |
|
|
$ |
4.5 |
|
Note 14. Fair Value of Financial Instruments
Fair Value Measurements
The carrying amounts of our cash and cash equivalents (which include money market funds), accounts receivable, accounts payable, accrued expenses, and certain other short‑term assets and liabilities approximate fair value due to their short‑term nature.
Money Market Funds
As of March 31, 2026 and December 31, 2025, the carrying value of our money market funds was $429.4 million and $791.7 million, respectively, which is included in Cash and cash equivalents on our condensed consolidated balance sheets. During the three months ended March 31, 2026 and March 31, 2025, we recognized $3.7 million and $2.5 million, respectively, of dividend income on our money market funds. Dividend income is included in Other income, net in the condensed consolidated statements of operations.
Hedging Instruments
Hedging instruments are re-measured on a recurring basis using pricing models, broker quotes, daily market foreign currency rates, and interest rate curves as applicable (see Note 15) and are categorized within Level 2 of the fair value hierarchy.
Foreign Currency Forward Contracts
The following table summarizes the valuation of our foreign currency forward contracts (see Note 15) that are measured at fair value on a recurring basis and are categorized within Level 2 of the fair value hierarchy as of the periods presented below (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Level 2 Fair Value |
|
|
March 31, 2026 |
|
|
|
|
|
|
|
| Foreign currency forward contracts—asset position |
|
|
|
|
$ |
6.2 |
|
|
|
| Foreign currency forward contracts—liability position |
|
|
|
|
(0.9) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total |
|
|
|
|
$ |
5.3 |
|
|
|
December 31, 2025 |
|
|
|
|
|
|
|
| Foreign currency forward contracts—asset position |
|
|
|
|
$ |
0.7 |
|
|
|
| Foreign currency forward contracts—liability position |
|
|
|
|
(0.8) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total |
|
|
|
|
$ |
(0.1) |
|
|
|
There were no transfers of financial instruments between the levels of the fair value hierarchy during the three months ended March 31, 2026 or 2025.
Disclosures about the Fair Value of Financial Instruments
The table below presents information about the fair value of our financial liabilities, and is provided for comparative purposes only relative to the carrying values recognized in the condensed consolidated balance sheets as of the periods presented below (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
March 31, 2026 |
|
December 31, 2025 |
|
Measurement Level |
|
Carrying Value |
|
Fair Value |
|
Carrying Value |
|
Fair Value |
|
|
|
|
|
|
|
|
|
|
| 2025 Japan ABL Credit Facility |
Level 2 |
|
$ |
44.1 |
|
|
$ |
44.1 |
|
|
$ |
44.7 |
|
|
$ |
44.7 |
|
| 2023 Term Loan B |
Level 2 |
|
$ |
162.5 |
|
|
$ |
163.3 |
|
|
$ |
1,165.6 |
|
|
$ |
1,170.7 |
|
| Convertible Notes |
Level 2 |
|
$ |
258.3 |
|
|
$ |
257.8 |
|
|
$ |
258.3 |
|
|
$ |
257.8 |
|
| Equipment Notes |
Level 2 |
|
$ |
5.3 |
|
|
$ |
5.1 |
|
|
$ |
6.5 |
|
|
$ |
6.2 |
|
Non-recurring Fair Value Measurements
We measure certain long-lived assets, goodwill, non-amortizing intangible assets and investments at fair value on a non-recurring basis, at least annually or more frequently if impairment indicators are present. We did not recognize any impairments related to continuing operations during the three months ended March 31, 2026 and 2025, respectively. Our cost-basis investments are also subject to fair value remeasurements from observable market transactions. For more detail, see Note 9.
Note 15. Derivatives and Hedging
The following table summarizes the fair value of our derivative instruments as well as the location of the asset and/or liability on the condensed consolidated balance sheets as of the periods presented below (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance Sheet Location |
|
Fair Value of Asset Derivatives |
|
March 31, 2026 |
|
December 31, 2025 |
| Derivatives designated as cash flow hedging instruments: |
|
|
|
|
|
| Foreign currency forward contracts |
Other current assets |
|
$ |
2.2 |
|
|
$ |
0.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Derivatives not designated as hedging instruments: |
|
|
|
|
|
| Foreign currency forward contracts |
Other current assets |
|
4.0 |
|
|
0.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total asset position |
|
$ |
6.2 |
|
|
$ |
0.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance Sheet Location |
|
Fair Value of Liability Derivatives |
|
March 31, 2026 |
|
December 31, 2025 |
| Derivatives designated as cash flow hedging instruments: |
|
|
|
|
| Foreign currency forward contracts |
Accounts payable and accrued expenses |
|
$ |
0.3 |
|
|
$ |
0.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Derivatives not designated as hedging instruments: |
|
|
|
|
| Foreign currency forward contracts |
Accounts payable and accrued expenses |
|
0.6 |
|
|
0.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total liability position |
|
$ |
0.9 |
|
|
$ |
0.8 |
|
Our derivative instruments are subject to a master netting agreement with each respective counterparty bank and are therefore net settled at their maturity date. Although we have the legal right of offset under the master netting agreements, we have elected not to present these contracts on a net settlement amount basis, and therefore present these contracts on a gross basis on the accompanying condensed consolidated balance sheets as of March 31, 2026 and December 31, 2025. Gains and losses related to our derivative instruments are presented as an adjustment to reconcile net income to net cash provided by or used in operating activities in the condensed consolidated statements of cash flows.
Derivative Designated as Cash Flow Hedging Instruments
We only use derivative instruments, including foreign currency forward contracts and interest rate swaps, to manage market risks related to foreign currency exposure across our global operations and exposure to variable‑rate debt.
As of March 31, 2026, the notional amount of our foreign currency forward contracts designated as cash flow hedges was $138.8 million. As of December 31, 2025, there were no outstanding cash flow hedges. During the fourth quarter of 2025, we closed out our interest rate swaps in connection with an amendment to the 2023 Term Loan B. As of March 31, 2026, we did not have any outstanding interest rate swap agreements.
The following tables summarize the net effect of all cash flow hedges for each of our derivative contracts on the condensed consolidated financial statements for the periods presented (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Gain/(Loss) Recognized in Other Comprehensive Income |
|
|
|
|
Three Months Ended March 31, |
| Derivatives designated as cash flow hedging instruments |
|
|
|
|
|
2026 |
|
2025 |
| Foreign currency forward contracts |
|
|
|
|
|
$ |
0.3 |
|
|
$ |
(2.6) |
|
| Interest rate swap contracts |
|
|
|
|
|
— |
|
|
(4.1) |
|
| Total |
|
|
|
|
|
$ |
0.3 |
|
|
$ |
(6.7) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Gain/(Loss) Reclassified from Other Comprehensive Income into Earnings |
|
|
|
|
|
|
Three Months Ended March 31, |
Derivatives designated as cash flow hedging instruments |
|
Statement of Operations Location |
|
|
|
|
|
2026 |
|
2025 |
| Foreign currency forward contracts |
|
Cost of sales |
|
|
|
|
|
$ |
(0.5) |
|
|
$ |
0.9 |
|
| Interest rate swap contracts |
|
Interest expense |
|
|
|
|
|
— |
|
|
1.2 |
|
| Total |
|
|
|
|
|
|
|
$ |
(0.5) |
|
|
$ |
2.1 |
|
For the three months ended March 31, 2026, $1.0 million of net gains related to the amortization of forward points was released from accumulated other comprehensive income and recognized in Cost of sales. For the three months ended March 31, 2025, $0.8 million of net gains related to the amortization of forward points were released from accumulated other comprehensive income and recognized in Cost of sales.
Based on the current valuation of our foreign currency forward contracts, we expect to release net gains of $0.3 million related to our foreign currency forward contracts from accumulated other comprehensive income into earnings over the next 12 months.
Derivatives Not Designated as Hedging Instruments
As of March 31, 2026 and December 31, 2025, the notional amounts of our foreign currency forward contracts not designated as cash flow hedges were approximately $220.7 million and $88.4 million, respectively.
The following table summarizes the location of net gains and losses on foreign currency forward contracts recognized in the condensed consolidated statements of operations for the periods presented (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location of Net Gain/(Loss) Recognized in Income on Derivative Instruments |
|
|
|
|
|
Net Gain/(Loss) Recognized in Income on Derivative Instruments |
| Derivatives not designated as hedging instruments |
|
|
|
Three Months Ended March 31, |
|
|
|
|
|
2026 |
|
2025 |
| Foreign currency forward contracts |
|
Other income (expense), net |
|
|
|
|
|
$ |
3.8 |
|
|
$ |
(9.9) |
|
During the three months ended March 31, 2026 and 2025, we recognized net foreign currency transaction losses of $3.4 million and gains of $9.8 million, respectively, in Other income (expense), net.
Note 16. Accumulated Other Comprehensive Loss
The following table details the amounts reclassified from accumulated other comprehensive loss and foreign currency translation adjustments for the three months ended March 31, 2026 (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Derivative Instruments |
|
Foreign Currency Translation |
|
Total |
Accumulated other comprehensive loss, December 31, 2025, after tax |
|
$ |
1.0 |
|
|
$ |
(28.6) |
|
|
$ |
(27.6) |
|
| Change in derivative instruments |
|
0.3 |
|
|
— |
|
|
0.3 |
|
Net (gains) losses reclassified to Cost of sales |
|
0.5 |
|
|
— |
|
|
0.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Income tax impact on derivative instruments |
|
(0.2) |
|
|
— |
|
|
(0.2) |
|
| Cumulative foreign currency translation adjustments recognized upon the sale of Topgolf |
|
— |
|
|
(3.6) |
|
|
(3.6) |
|
| Foreign currency translation adjustments |
|
— |
|
|
(3.1) |
|
|
(3.1) |
|
Accumulated other comprehensive loss, March 31, 2026, after tax |
|
$ |
1.6 |
|
|
$ |
(35.3) |
|
|
$ |
(33.7) |
|
Note 17. Segment Information
Our operating segments are based on how our Chief Executive Officer as the designated Chief Operating Decision Maker (“CODM”) makes decisions about assessing performance and allocating resources. Our CODM primarily evaluates segment performance using segment operating income (loss), which is calculated by taking total segment net sales less segment operating expenses. Segment operating expenses include operating expenses directly attributable to the segment as well as certain shared corporate administration services and other costs which are allocated to the reportable segments. Segment operating expenses exclude certain non-recurring items and other corporate costs, such as interest expense, interest income and taxes. Our CODM evaluates the profitability of each reportable segment based on segment operating income (loss) because it provides insight to operational leverage and other key operational metrics for each segment. Segment operating income (loss) is also used in the annual budget and forecasting process, and budget-to-actual and forecast-to-actual variances are considered when determining the appropriate allocation of company resources to each of our segments. Our CODM does not evaluate a measure of assets when assessing segment performance.
We have two operating and reportable segments:
•Golf Equipment, which is comprised of product sales and expenses that encompass golf club and golf ball products, including Callaway Golf-branded woods, hybrids, irons, wedges, Odyssey putters, packaged sets, Callaway Golf-branded golf balls and sales of pre-owned golf clubs; and
•Apparel, Gear and Other, which is comprised of product sales and expenses for the TravisMathew golf and lifestyle apparel and accessories business, the Callaway soft goods business and the OGIO business, which consists of golf apparel and accessories (including golf bags), and storage gear for sport and personal use. This segment also includes royalties from licensing of our trademarks and service marks for various soft goods products.
There were no significant intersegment transactions during the three months ended March 31, 2026 or 2025.
The following table contains information utilized by our CODM to evaluate our operating segments for the periods presented below (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
|
|
2026 |
|
2025 |
| Golf Equipment: |
|
|
|
|
|
|
|
| Net sales |
|
|
|
|
$ |
486.2 |
|
|
$ |
443.9 |
|
| Less: Cost of sales |
|
|
|
|
265.4 |
|
|
247.0 |
|
| Gross profit |
|
|
|
|
220.8 |
|
|
196.9 |
|
|
|
|
|
|
|
|
|
| Less: Selling, general and administrative expense |
|
|
|
|
91.0 |
|
|
82.4 |
|
| Less: Research and development expense |
|
|
|
|
12.2 |
|
|
12.7 |
|
| Income before income taxes |
|
|
|
|
$ |
117.6 |
|
|
$ |
101.8 |
|
|
|
|
|
|
|
|
|
| Apparel, Gear and Other: |
|
|
|
|
|
|
|
| Net sales |
|
|
|
|
$ |
201.3 |
|
|
$ |
185.7 |
|
| Less: Cost of sales |
|
|
|
|
94.3 |
|
|
98.1 |
|
| Gross profit |
|
|
|
|
107.0 |
|
|
87.6 |
|
|
|
|
|
|
|
|
|
| Less: Selling, general and administrative expense |
|
|
|
|
52.0 |
|
|
49.0 |
|
| Less: Research and development expense |
|
|
|
|
3.0 |
|
|
3.2 |
|
| Income before income taxes |
|
|
|
|
$ |
52.0 |
|
|
$ |
35.4 |
|
|
|
|
|
|
|
|
|
| Segment income from continuing operations |
|
|
|
|
$ |
169.6 |
|
|
$ |
137.2 |
|
|
|
|
|
|
|
|
|
| Reconciling items: |
|
|
|
|
|
|
|
Non-recurring expenses (1) |
|
|
|
|
(4.0) |
|
|
(1.3) |
|
Corporate costs and expenses (2) |
|
|
|
|
(27.4) |
|
|
(32.8) |
|
| Total Reconciling items: |
|
|
|
|
(31.4) |
|
|
(34.1) |
|
Income (loss) from operations |
|
|
|
|
138.2 |
|
|
103.1 |
|
Interest income (expense), net |
|
|
|
|
(5.8) |
|
|
(14.9) |
|
Other income (expense), net |
|
|
|
|
2.9 |
|
|
2.4 |
|
Total other income (expense), net |
|
|
|
|
(2.9) |
|
|
(12.5) |
|
| Income (loss) from equity method investments |
|
|
|
|
(27.7) |
|
|
— |
|
Income (loss) from continuing operations, before income taxes |
|
|
|
|
$ |
107.6 |
|
|
$ |
90.6 |
|
|
|
|
|
|
|
|
|
(1) Includes non-cash amortization of acquired intangible assets and non-recurring expenses primarily consisting of costs related to a relocation to a new warehouse in the United Kingdom as a result of the sale of the Jack Wolfskin business, restructuring and reorganization charges relating to the Transformation Plan (see Note 18), and the write-off of software assets stemming from our separation from Topgolf. |
(2) Corporate costs and expenses include corporate general and administrative expenses not utilized by management in determining segment profitability as well as adjustments for discontinued operations related to indirect costs that were previously allocated to a segment. |
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
2026 |
|
2025 |
| Depreciation and amortization: |
|
|
|
| Golf Equipment |
$ |
6.2 |
|
|
$ |
6.9 |
|
| Apparel, Gear and Other |
4.6 |
|
|
4.8 |
|
| Total depreciation and amortization |
$ |
10.8 |
|
|
$ |
11.7 |
|
We market our products in the United States and internationally, with our principal international markets being Asia and Europe. The tables below contain information about the geographical areas in which we operate. Net sales are attributed to the location to which the product was shipped. Long-lived assets are based on location of domicile.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
(in millions) |
|
|
|
|
2026 |
|
2025 |
|
|
| Net Sales: |
|
|
|
|
|
|
|
|
|
| United States |
|
|
|
|
$ |
448.8 |
|
|
$ |
416.1 |
|
|
|
| Europe |
|
|
|
|
83.2 |
|
|
64.3 |
|
|
|
| Asia |
|
|
|
|
103.6 |
|
|
106.8 |
|
|
|
| Rest of World |
|
|
|
|
51.9 |
|
|
42.4 |
|
|
|
| Total Net Sales |
|
|
|
|
$ |
687.5 |
|
|
$ |
629.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2026 |
|
December 31, 2025 |
| Long-Lived Assets |
|
|
|
| United States |
$ |
132.7 |
|
|
$ |
136.4 |
|
| Europe |
5.4 |
|
|
4.2 |
|
| Asia |
12.1 |
|
|
12.9 |
|
| Rest of World |
6.0 |
|
|
6.0 |
|
| Total Long-Lived Assets |
$ |
156.2 |
|
|
$ |
159.5 |
|
Note 18. Restructuring
Our restructuring costs primarily consist of severance and termination benefits, asset disposals, write-offs and impairments and other exit and disposal costs. Severance costs generally include severance payments, outplacement services, health insurance coverage and legal costs.
Transformation Plan
In connection with the September 2024 announcement of our intended separation of the Topgolf business, we initiated a plan which is intended to optimize organizational efficiencies and decrease operating costs under the separate business structures that are anticipated after the separation (the “Transformation Plan”). For the three months ended March 31, 2026, costs incurred under the Transformation Plan were related to employee termination and severance costs and the disposal of property, plant and equipment. We expect to incur up to $10.0 million in costs related to the Transformation Plan, which we expect to be substantially complete by the end of 2026.
For the three months ended March 31, 2026 and 2025, we incurred $0.8 million and $0.7 million, respectively, of employee termination and severance costs under the Transformation Plan. Amounts payable for employee termination and severance included in Accrued employee compensation and benefits on the condensed consolidated balance sheets at March 31, 2026 and December 31, 2025, totaled $0.5 million and $0.2 million, respectively. As of March 31, 2026, we incurred cumulative costs of $5.1 million related to the Transformation Plan.
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion should be read in conjunction with the condensed consolidated financial statements and related notes that appear elsewhere in this report, and the condensed consolidated financial statements and notes thereto included in our Annual Report on Form 10-K for the year ended December 31, 2025, which was filed with the SEC on February 27, 2026. Interim operating results are not indicative of operating results that may be expected for the year ending December 31, 2026, or any other future periods. See “Important Notice to Investors Regarding Forward-Looking Statements” on page 2 of this report. References to the “Company,” “Callaway Golf Company,” “we,” “our,” or “us” in this report refer to Callaway Golf Company, together with our wholly-owned subsidiaries.
Divestitures of Topgolf and Jack Wolfskin
In 2025, we executed a strategic realignment to focus on our core Golf Equipment and complementary soft goods businesses, which included the sale of Jack Wolfskin on May 31, 2025, for approximately $290.0 million and the sale of a 60% stake in our Topgolf and Toptracer business (“Topgolf”) based upon an equity value of approximately $1,100.0 million. The Topgolf transaction closed effective January 1, 2026, resulting in net proceeds to us of $818.8 million from the sale and related financing transactions, net of preliminary working capital adjustments and cash retained. Our remaining 40% interest in Topgolf is accounted for under the equity method.
As a result of these divestitures, the operating results of Jack Wolfskin and Topgolf are reported in discontinued operations for all periods presented in this Form 10-Q. For more information, please refer to Note 3 of this Form 10-Q or our Annual Report on Form 10-K for the year ended December 31, 2025.
Discussion of Non-GAAP Measures
In addition to the financial results contained in this report, which have been prepared and presented in accordance with accounting principles generally accepted in the United States of America (“GAAP”), we have also included supplemental information concerning our financial results on a non-GAAP basis. This non-GAAP information includes the following:
•A constant currency measure on net sales in order to demonstrate the impact of foreign currency fluctuations on these results. This information represents an estimate for comparative purposes and is calculated by taking current period local currency results and translating them into U.S. dollars based on the foreign currency exchange rates for the applicable comparable prior period.
•Net income and diluted earnings per share from continuing operations excluding the non-cash amortization associated with acquired intangible assets, including acquired customer and distributor relationships and acquired developed technology related to our acquisitions of TravisMathew and OGIO (collectively, the “Acquisitions”). While the amortization of these assets is excluded from our calculation of non-GAAP net income, the revenue, operating costs and associated acquired assets that contribute to the revenue generation associated with these acquired companies is reflected in our calculation of non-GAAP net income from continuing operations.
•Net income and diluted earnings per share from continuing operations excluding certain non-cash and non-recurring charges, as further detailed below, as well as the income (loss) from our equity method investment in Topgolf. In addition, for periods presented for fiscal year 2025, net income and diluted earnings per share from continuing operations were adjusted to include interest expense associated with term loan debt that was recognized as part of discontinued operations in order to show the full effect of consolidated interest expense from our corporate debt.
We have included information in this report to reconcile non-GAAP information for the periods presented to the most directly comparable GAAP information. Non-GAAP information in this report should not be considered in isolation or as a substitute for any measure derived in accordance with GAAP and may also be inconsistent with the manner in which similar measures are derived or used by other companies. We use such non-GAAP information for financial and operational decision-making purposes and as a means to evaluate the underlying performance of our business and/or in forecasting our business. We believe that the presentation of such non-GAAP information, when considered in conjunction with the most directly comparable GAAP information, provides additional useful information for investors in their assessment of the underlying performance of our business.
Segment and Related Information
Our products and brands are reported under two operating segments: Golf Equipment, which includes the operations of our golf clubs and golf balls business; and Apparel, Gear and Other, which includes the operations of our soft goods business marketed under the Callaway, TravisMathew and OGIO brand names.
Golf Equipment
Our Golf Equipment operating segment is comprised of Callaway Golf-branded woods, hybrids, irons, wedges, Odyssey putters, packaged sets, and Callaway Golf branded golf balls, as well as sales of pre-owned golf clubs. Our golf equipment products are designed to be technologically advanced and are for golfers of all skill levels, from beginner to professional.
Operating results for our Golf Equipment segment fluctuate due to seasonal factors, as the game of golf is primarily played on a seasonal basis in most of the regions where we conduct business. Weather conditions in most parts of the world, including our primary geographic markets, generally restrict golf from being played throughout the entire year, with many of our on-course customers closing during the cold weather months. Operating results are also impacted by the timing of our product launches. In general, we launch new products for the new golf season during the first quarter of the year. This initial sell-in period typically continues into the second quarter, while third-quarter sales are generally dependent on reorders and may also include smaller new product launches. Fourth-quarter sales are generally less than the other quarters due to the end of the golf season in many of our key regions. In addition to this seasonality, our Golf Equipment sales may also be impacted by other factors, including the timing of new product introductions. As a result of these factors, a majority of our Golf Equipment sales, and most, if not all, of the profitability from our Golf Equipment operating segment generally occurs during the first half of the year.
Apparel, Gear, and Other
Our Apparel, Gear and Other segment is comprised of high quality soft good products which we design, develop and sell under the Callaway, TravisMathew and OGIO brands. These brands deliver a range of premium performance and lifestyle products in the United States and select international markets. We are focused on maintaining strong brand momentum by category and market share growth with key trade partners by enhancing our digital marketing, e-commerce and retail store presence, which we believe will increase direct-to-consumer sales and drive increased profitability over time.
Sales of Callaway‑branded golf apparel and accessories generally follow the same seasonal patterns as golf equipment and are therefore typically higher during the first half of the year. Sales of TravisMathew and OGIO branded products, which include golf and lifestyle apparel, accessories, and performance products, are more diversified and therefore are more evenly distributed throughout the year due to broader product offerings and a greater mix of direct‑to‑consumer sales.
For further information about our segments, see Note 17 “Segment Information” in the Notes to Condensed Consolidated Financial Statements in Part I, Item 1 of this Form 10-Q.
Current Economic Conditions
Macroeconomic Factors
Our products are discretionary purchases, and demand may be adversely affected by changes in macroeconomic conditions that impact consumer discretionary spending. These conditions include, among other factors, inflationary pressures, interest rate environments, and changes in trade policies or tariffs. While we seek to mitigate the effects of such factors through monitoring consumer spending behavior and implementing strategic initiatives, prolonged or severe adverse economic conditions could negatively impact our operating results.
Tariffs
In 2025, the U.S. government implemented reciprocal tariffs affecting many countries in which we do business, increasing costs for our products, components, and raw materials, a significant portion of which are sourced from outside the United States, including Asia and other regions, which may adversely affect product availability, pricing, and demand. The U.S. government has subsequently announced and rescinded various tariffs, contributing to continued uncertainty regarding their economic impact. On February 20, 2026, the United States Supreme Court struck down certain tariffs previously imposed under the International Emergency Economic Powers Act of 1977. The ruling did not address potential refunds of tariffs previously assessed under that authority, and as of March 31, 2026, we have not recognized an asset related to any potential refund. Following the ruling, additional tariffs were imposed under a separate authority, further contributing to uncertainty regarding tariff levels, duration, and related costs.
Foreign Currency
A significant portion of our operations is conducted outside the United States in currencies other than the U.S. dollar. We use foreign currency forward contracts to partially mitigate the short‑term effects of exchange rate fluctuations on our financial results; however, these instruments do not eliminate currency impacts or address long‑term exposure. Foreign currency fluctuations affect our results primarily through the translation of foreign‑currency‑denominated results into U.S. dollars and mark‑to‑market adjustments on certain intercompany balances and foreign currency forward contracts. For the three months ended March 31, 2026, foreign currency fluctuations had a favorable impact of $7.6 million on international net revenues.
Results of Operations
We have reclassified certain prior-year amounts related to our discontinued operations to conform to the current year’s presentation. Unless otherwise specified, our discussion below reflects continuing operations only and prior period financial information related to discontinued operations has been reclassified and is separately presented in the condensed consolidated financial statements and accompanying notes.
Net sales and operating segment results (in millions, except percentages)
Net sales for the three months ended March 31, 2026 increased $57.9 million or 9.2% (8.0% on a constant currency basis) as compared to the three months ended March 31, 2025. Segment operating income increased $32.4 million or 23.6% driven by increases in both our Golf Equipment and Apparel, Gear and Other operating segments.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
Growth/(Decline) |
|
Non-GAAP Constant Currency Growth vs. 2025(1) |
| ($ in millions) |
|
|
|
|
|
|
|
|
|
|
2026 |
|
2025 |
|
Dollars |
|
Percent |
|
Percent |
| Net sales: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Golf clubs |
|
|
|
|
|
|
|
|
|
|
$ |
380.6 |
|
|
$ |
340.0 |
|
|
$ |
40.6 |
|
|
11.9 |
% |
|
10.4% |
| Golf balls |
|
|
|
|
|
|
|
|
|
|
105.6 |
|
|
103.9 |
|
|
1.7 |
|
|
1.6 |
% |
|
0.3% |
| Golf Equipment |
|
|
|
|
|
|
|
|
|
|
486.2 |
|
|
443.9 |
|
|
42.3 |
|
|
9.5 |
% |
|
8.0% |
| Apparel |
|
|
|
|
|
|
|
|
|
|
102.7 |
|
|
98.0 |
|
|
4.7 |
|
|
4.8 |
% |
|
5.1% |
| Gear, accessories, & other |
|
|
|
|
|
|
|
|
|
|
98.6 |
|
|
87.7 |
|
|
10.9 |
|
|
12.4 |
% |
|
11.1% |
| Apparel, Gear and Other |
|
|
|
|
|
|
|
|
|
|
201.3 |
|
|
185.7 |
|
|
15.6 |
|
|
8.4 |
% |
|
7.9% |
| Total net sales |
|
|
|
|
|
|
|
|
|
|
$ |
687.5 |
|
|
$ |
629.6 |
|
|
$ |
57.9 |
|
|
9.2 |
% |
|
8.0% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Segment operating income (loss): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Golf Equipment |
|
|
|
|
|
|
|
|
|
|
$ |
117.6 |
|
|
$ |
101.8 |
|
|
$ |
15.8 |
|
|
15.5 |
% |
|
|
| Apparel, Gear and Other |
|
|
|
|
|
|
|
|
|
|
52.0 |
|
|
35.4 |
|
|
16.6 |
|
|
46.9 |
% |
|
|
| Total segment operating income (loss) |
|
|
|
|
|
|
|
|
|
|
169.6 |
|
|
137.2 |
|
|
32.4 |
|
|
23.6 |
% |
|
|
Non-recurring items (2) |
|
|
|
|
|
|
|
|
|
|
(4.0) |
|
|
(1.3) |
|
|
(2.7) |
|
|
n/m |
|
|
Corporate costs and expenses (3) |
|
|
|
|
|
|
|
|
|
|
(27.4) |
|
|
(32.8) |
|
|
5.4 |
|
|
(16.5) |
% |
|
|
Income (loss) from operations |
|
|
|
|
|
|
|
|
|
|
138.2 |
|
|
103.1 |
|
|
35.1 |
|
|
34.0 |
% |
|
|
Interest income (expense), net |
|
|
|
|
|
|
|
|
|
|
(5.8) |
|
|
(14.9) |
|
|
9.1 |
|
|
(61.1) |
% |
|
|
Other income (expense), net |
|
|
|
|
|
|
|
|
|
|
2.9 |
|
|
2.4 |
|
|
0.5 |
|
|
20.8 |
% |
|
|
| Income (loss) from equity method investments |
|
|
|
|
|
|
|
|
|
|
(27.7) |
|
|
— |
|
|
(27.7) |
|
|
n/m |
|
|
Income (loss) from continuing operations, before income taxes |
|
|
|
|
|
|
|
|
|
|
$ |
107.6 |
|
|
$ |
90.6 |
|
|
$ |
17.0 |
|
|
18.8 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) Calculated by applying 2025 exchange rates to 2026 reported sales in regions outside the United States. |
(2) Includes non-cash amortization of acquired intangible assets and non-recurring expenses primarily consisting of costs related to a relocation to a new warehouse in the United Kingdom as a result of the sale of the Jack Wolfskin business, restructuring and reorganization charges related to the Transformation Plan, and write-offs of software assets stemming from our separation from Topgolf. |
(3) Corporate costs and expenses include corporate general and administrative expenses not utilized by management in determining segment profitability as well as adjustments for discontinued operations related to indirect costs that were previously allocated to a segment. |
Golf Equipment
Net sales
The $42.3 million (9.5%) increase in Golf Equipment net sales for the three months ended March 31, 2026 was primarily due to an 11.9% increase in golf club sales due to improved launch execution, strong reception of new product launches, and strong overall market demand, combined with a 1.6% increase in golf ball sales driven by the successful launch of the new Chrome Tour ball, partially offset by SKU rationalization initiatives related to lower margin ball products.
Operating income
The $15.8 million increase in Golf Equipment segment operating income for the three months ended March 31, 2026 was primarily driven by the increase in net sales noted above, combined with improved gross margins resulting from favorable pricing and cost savings from gross margin initiatives, which more than offset the unfavorable impact of approximately $12.0 million from incremental tariffs. In addition, operating expenses increased $8.1 million primarily due to the recognition of an $8.2 million lease termination incentive gain in the first quarter of 2025 that did not recur.
Apparel, Gear and Other
Net sales
The $15.6 million (8.4%) increase in Apparel, Gear and Other net sales for the three months ended March 31, 2026, was primarily due to increases in sales of Callaway soft goods and TravisMathew apparel products related to strong overall market demand and improved direct-to-consumer sales in the TravisMathew business.
Operating income
The $16.6 million (46.9%) increase in segment operating income for the three months ended March 31, 2026 was primarily driven by the increase in net sales and higher gross margins from favorable pricing and cost savings from gross margin initiatives, which more than offset the unfavorable impact of approximately $3.4 million from incremental tariffs. In addition, operating expenses increased $2.8 million due to the recognition of a $3.8 million lease termination incentive gain in the first quarter of 2025 that did not recur.
Net sales by major geographic region for the periods presented below were as follows (in millions, except percentages):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
Three Months Ended March 31, |
|
Increase/(Decrease) |
Non-GAAP Constant Currency Growth vs. 2025 |
|
|
|
|
|
|
|
|
|
|
2026 |
|
2025 |
|
Dollars |
Percent |
Percent |
| Net sales: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| United States |
|
|
|
|
|
|
|
|
|
$ |
448.8 |
|
|
$ |
416.1 |
|
|
$ |
32.7 |
|
7.9 |
% |
7.9 |
% |
| Europe |
|
|
|
|
|
|
|
|
|
83.2 |
|
|
64.3 |
|
|
18.9 |
|
29.4 |
% |
18.2 |
% |
| Asia |
|
|
|
|
|
|
|
|
|
103.6 |
|
|
106.8 |
|
|
(3.2) |
|
(3.0) |
% |
(0.7) |
% |
| Rest of World |
|
|
|
|
|
|
|
|
|
51.9 |
|
|
42.4 |
|
|
9.5 |
|
22.4 |
% |
15.8 |
% |
| Total net sales |
|
|
|
|
|
|
|
|
|
$ |
687.5 |
|
|
$ |
629.6 |
|
|
$ |
57.9 |
|
9.2 |
% |
8.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
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|
|
We sell our Golf Equipment and Apparel, Gear and Other products in the United States and internationally, with our principal international regions being Europe and Asia. Apparel, Gear and Other product sales for our TravisMathew business are primarily concentrated in the United States.
United States
The $32.7 million (7.9%) increase in net sales for the three months ended March 31, 2026 was primarily due to higher sales volumes of golf clubs combined with higher TravisMathew sales.
Europe
The $18.9 million (29.4%) increase in net sales for the three months ended March 31, 2026 was primarily due to increases in golf equipment product sales.
Asia
The $3.2 million (3.0%) decrease in net sales for three months ended March 31, 2026 was primarily due to unfavorable foreign currency impacts and soft demand in the Korea apparel market.
Rest of World
The $9.5 million (22.4%) increase compared to the three months ended March 31, 2026 was primarily due to higher golf equipment sales in Canada and Australia.
Gross Profit (in millions, except percentages)
|
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|
|
Three Months Ended March 31, |
|
Increase/(Decrease) |
|
|
|
|
|
|
|
|
|
2026 |
|
2025 |
|
Amount |
Percent |
|
| Net sales |
|
|
|
|
|
|
|
$ |
687.5 |
|
|
$ |
629.6 |
|
|
$ |
57.9 |
|
9.2 |
% |
|
| Cost of sales |
|
|
|
|
|
|
|
360.8 |
|
|
346.0 |
|
|
14.8 |
|
4.3 |
% |
|
| Gross profit |
|
|
|
|
|
|
|
$ |
326.7 |
|
|
$ |
283.6 |
|
|
$ |
43.1 |
|
15.2 |
% |
|
| Gross margin |
|
|
|
|
|
|
|
47.5 |
% |
|
45.0 |
% |
|
|
2.5 |
% |
|
Cost of sales
Our cost of sales is variable in nature and fluctuates relative to sales volumes. Cost of sales includes raw materials and component costs, direct labor and manufacturing overhead, inbound freight, duties, tariffs and shipping charges, and depreciation and amortization directly related to manufacturing and distribution.
Gross profit and gross margin
During the three months ended March 31, 2026, gross profit increased by $43.1 million (15.2%) as compared to the prior year period. Gross profit as a percent of net sales (“gross margin”) increased to 47.5% for the three months ended March 31, 2026 compared to 45.0% for the three months ended March 31, 2025. The improvement in gross margin was due to favorable pricing combined with cost savings from gross margin initiatives, which more than offset the unfavorable impacts of incremental tariffs.
Operating Expenses (in millions, except percentages)
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|
Three Months Ended March 31, |
|
Increase/(Decrease) |
|
|
|
|
|
|
|
|
|
|
2026 |
|
2025 |
|
Dollars |
|
Percent |
|
| Operating expenses: |
|
|
|
|
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|
|
|
|
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|
|
| Selling, general and administrative expense |
|
|
|
|
|
|
|
|
$ |
173.3 |
|
|
$ |
164.6 |
|
|
$ |
8.7 |
|
|
5.3 |
% |
|
| Research and development expense |
|
|
|
|
|
|
|
|
15.2 |
|
|
15.9 |
|
|
(0.7) |
|
|
(4.4) |
% |
|
| Total operating expenses |
|
|
|
|
|
|
|
|
$ |
188.5 |
|
|
$ |
180.5 |
|
|
$ |
8.0 |
|
|
4.4 |
% |
|
Selling, general and administrative expense
Selling, general and administrative (“SG&A”) expenses primarily consist of employee costs, advertising and promotional expense, legal and professional fees, tour expenses, travel expenses, building and rent expenses, depreciation and amortization charges and other miscellaneous expenses.
The $8.7 million (5.3%) increase in SG&A expenses for the three months ended March 31, 2026 was primarily due to a $12.0 million gain recognized from a lease termination incentive in the first quarter of 2025, which did not recur in 2026, combined with an increase in employee costs primarily related to cost of living and sales commissions increases, partially offset by lower advertising spend due to the timing of planned advertising activities.
Research and development expense
Research and development expenses are comprised of costs to design, develop, test or improve our products and technology, and primarily include employee costs of personnel engaged in research and development activities, research costs and depreciation expense.
The $0.7 million (4.4%) decrease in research and development expenses for the three months ended March 31, 2026 was primarily due to a decline in depreciation expense combined with cost savings initiatives.
Other Income and Expense (in millions, except percentages)
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|
Three Months Ended March 31, |
|
Increase/(Decrease) |
|
|
|
|
|
|
|
|
|
2026 |
|
2025 |
|
Dollars |
|
Percent |
| Other income and expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income (expense), net |
|
|
|
|
|
|
|
|
$ |
(5.8) |
|
|
$ |
(14.9) |
|
|
$ |
9.1 |
|
|
(61.1) |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Other income (expense), net |
|
|
|
|
|
|
|
|
2.9 |
|
|
2.4 |
|
|
0.5 |
|
|
20.8 |
% |
Total other income (expense), net |
|
|
|
|
|
|
|
|
$ |
(2.9) |
|
|
$ |
(12.5) |
|
|
$ |
9.6 |
|
|
(76.8) |
% |
Interest expense
The $9.1 million (61.1%) decrease in interest expense, net for the three months ended March 31, 2026 was primarily due to lower interest expense on our term loan as a result of the partial repayment on January 2, 2026 in connection with completion of the sale of Topgolf.
Other income
The $0.5 million (20.8%) increase in other income for the three months ended March 31, 2026 was primarily due to a $4.3 million remeasurement gain on our investment in Five Iron Golf, $2.1 million of higher dividend income on our money market accounts and $1.2 million of income from transition services provided to Topgolf, partially offset by a $7.5 million write-off of unamortized debt issuance fees in connection with the partial repayment of the term loan mentioned above.
Income (Loss) from Equity Method Investments (in millions, except percentages)
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|
Three Months Ended March 31, |
|
Increase/(Decrease) |
|
|
|
|
|
|
|
|
|
2026 |
|
2025 |
|
Dollars |
|
Percent |
| Income (loss) from equity method investments |
|
|
|
|
|
|
|
|
$ |
(27.7) |
|
|
$ |
— |
|
|
$ |
(27.7) |
|
|
n/m |
Income (loss) from equity method investments
The $27.7 million loss during the three months ended March 31, 2026 represents our proportionate share of Topgolf’s net losses following the completion of the sale of the business effective January 1, 2026.
Income Taxes (in millions, except percentages)
|
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|
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|
|
|
|
Three Months Ended March 31, |
|
Increase/(Decrease) |
|
|
|
|
|
|
|
|
|
2026 |
|
2025 |
|
Dollars |
|
Percent |
| Income tax provision (benefit) |
|
|
|
|
|
|
|
|
$ |
32.7 |
|
|
$ |
27.2 |
|
|
$ |
5.5 |
|
|
20.2 |
% |
Income tax expense
The $5.5 million increase in income tax expense for the three months ended March 31, 2026 was primarily due to higher pre‑tax earnings. As a percentage of pre-tax income, our effective tax rate for the three months ended March 31, 2026 increased to 30.4% compared to 30.0% in the comparable period of 2025.
Net Income, Diluted Earnings Per Share and Reconciliation of Non-GAAP Measures
The following table presents a reconciliation of our GAAP results for the three months ended March 31, 2026 and 2025 to our non-GAAP results for the same periods (in millions, except per share information):
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|
|
|
|
|
|
|
Three Months Ended March 31, 2026 |
|
Three Months Ended March 31, 2025 |
|
|
|
|
|
|
|
|
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|
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|
|
|
|
|
Net Income |
|
Diluted Earnings per share(6)(7) |
|
Net Income |
|
Diluted Earnings per share(6)(7) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
GAAP net income (loss) from continuing operations |
$ |
74.9 |
|
|
$ |
0.38 |
|
|
$ |
63.4 |
|
|
$ |
0.33 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-cash amortization of acquired intangibles(1) |
(0.2) |
|
— |
|
|
— |
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income (expense) and non-recurring items(2)(3) |
(4.4) |
|
(0.02) |
|
|
6.3 |
|
0.03 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax valuation allowance(4) |
0.1 |
|
— |
|
|
— |
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from equity method investments(5) |
(32.4) |
|
(0.16) |
|
|
— |
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-GAAP net income (loss) from continuing operations |
$ |
111.8 |
|
|
$ |
0.56 |
|
|
$ |
57.1 |
|
|
$ |
0.30 |
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
|
|
|
|
|
|
| GAAP diluted weighted-average shares outstanding |
|
|
202.7 |
|
|
|
|
198.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Non-GAAP diluted weighted-average shares outstanding |
|
|
202.7 |
|
|
|
|
198.2 |
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
(1) Includes the amortization of acquired intangible assets, including customer and distributor relationships, reacquired distribution rights and acquired developed technology related to our Acquisitions. See “Discussion of Non-GAAP Measures” for more information. |
|
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|
|
(2) In 2026, amounts primarily include $7.5 million of other expense related to the continuing operations portion of the $15.0 million write off of debt issuance costs due to the $1,000.0 million partial repayment of the term loan in January 2026 in connection with the sale of Topgolf, $1.0 million of costs related to the relocation to a new warehouse in the United Kingdom as a result of the sale of the Jack Wolfskin business in 2025, $1.0 million of restructuring charges related to the Transformation Plan and a $0.7 million write-off of software assets stemming from our separation from Topgolf. |
|
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|
|
(3) In 2025, amounts primarily include $0.7 million of restructuring charges related to the Transformation Plan. In addition, $9.5 million of term loan interest expense incurred at the corporate level and included in discontinued operations on a GAAP basis is reflected as part of continuing operations on a non-GAAP basis in order to show the full effect of consolidated interest expense. |
|
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|
|
|
|
|
|
|
|
|
|
(4) Related to the release of valuation allowances on certain U.S. deferred tax assets related to the disposal of the Topgolf and Jack Wolfskin businesses. |
|
|
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|
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|
|
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|
|
|
|
|
(5) In 2026, amounts include our $27.7 million proportionate share of Topgolf’s net losses combined with $4.7 million of unfavorable tax impacts. |
|
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|
(6) Diluted earnings per share is calculated using the if-converted method, which excludes interest expense related to the Convertible Notes from the calculation of net income in periods where income is reported. |
|
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|
(7) When aggregated, diluted earnings per share amounts may not be additive due to rounding. |
|
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|
|
GAAP net income from continuing operations
Net income from continuing operations and diluted earnings per share for the three months ended March 31, 2026 were $74.9 million and $0.38 per share, respectively, as compared to net income from continuing operations and diluted earnings per share of $63.4 million and $0.33 per share, respectively, for the three months ended March 31, 2025. These increases were primarily driven by a $32.4 million increase in segment operating income, in addition to lower interest expense. These increases were partially offset by the loss recognized from our equity method investment in Topgolf.
Non-GAAP net income from continuing operations
On a non-GAAP basis, excluding the items described in the table above, our net income from continuing operations and diluted earnings per share for the three months ended March 31, 2026 would have been $111.8 million and $0.56 per share, respectively, as compared to net income from continuing operations and diluted earnings per share of $57.1 million and $0.30 per share, respectively, for the three months ended March 31, 2025. The increase in non-GAAP net income from continuing operations was primarily due to a $32.4 million increase in segment operating income and lower interest expense.
Discontinued Operations (in millions, except percentages)
|
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|
|
Three Months Ended March 31, |
|
Increase/(Decrease) |
|
|
|
|
|
|
|
|
|
2026 |
|
2025 |
|
Dollars |
|
Percent |
| Income (loss) from discontinued operations, net of tax |
|
|
|
|
|
|
|
|
$ |
18.2 |
|
|
$ |
(61.3) |
|
|
$ |
79.5 |
|
|
(129.7) |
% |
Income of $18.2 million from discontinued operations, net of tax, for the three months ended March 31, 2026 was primarily related to the recognition of an income tax benefit in connection with the sale of Topgolf effective on January 1, 2026, partially offset by transaction costs directly related to the completion of the sale. The $61.3 million loss from discontinued operations, net of tax for the three months ended March 31, 2025 was due to net operating losses of both Topgolf and Jack Wolfskin during the period.
Financial Condition
Cash and cash equivalents
Our cash and cash equivalents decreased $404.0 million to $499.5 million at March 31, 2026 as compared to December 31, 2025 and decreased $182.5 million compared to March 31, 2025. These decreases were primarily driven by cash used in financing activities from continuing operations, largely reflecting the partial repayment of our term loan in January 2026, which was funded by cash proceeds from the sale of Topgolf and cash on hand. In addition, cash used in operating activities from continuing operations increased, which primarily reflects working capital changes associated with normal seasonal fluctuations and the performance of the business. We believe that our cash on hand and existing sources of capital are adequate to fund our future operations, as necessary. For further information related to our financing arrangements, see Note 6 “Financing Arrangements” in the Notes to Condensed Consolidated Financial Statements in Part I, Item 1 and “Liquidity and Capital Resources” in Part I, Item 2 of this Form 10-Q.
Accounts receivable
Our accounts receivable balance fluctuates throughout the year as a result of the general seasonality of our business, and is also affected by the timing of new product launches. With respect to our Golf Equipment business, accounts receivable are generally the highest during the first and second quarters during the seasonal peak in the golf industry, and generally decline significantly during the third and fourth quarters as a result of an increase in cash collections combined with lower seasonal sales. With respect to our Apparel, Gear and Other business, accounts receivable balances for our TravisMathew and OGIO businesses are more evenly distributed throughout the year while accounts receivable balances for our Callaway soft good brand are subject to the same general seasonality as our Golf Equipment business. As of March 31, 2026, our consolidated net accounts receivable increased to $393.8 million from $123.2 million at December 31, 2025. The increase primarily reflects the seasonality of Golf Equipment net sales in the first quarter. Net accounts receivable as of March 31, 2026 increased $33.6 million compared to March 31, 2025, primarily due to higher net sales.
Inventory
Our inventory balance fluctuates throughout the year as a result of the general seasonality of our Golf Equipment business, and is also affected by the timing of new product launches. With respect to our Golf Equipment business, the buildup of inventory generally begins during the fourth quarter and continues into the first quarter and beginning of the second quarter in order to meet increased demand during the golf season. Inventory levels are also impacted by the timing of new product launches as well as the success of new products. With respect to our Apparel, Gear and Other business, inventory levels are generally less affected by seasonality due to the diversification of product offerings for these brands. As of March 31, 2026, our inventory decreased $28.9 million to $596.4 million, compared to December 31, 2025, which reflects our seasonality. Our inventory decreased $15.3 million as of March 31, 2026, compared to March 31, 2025, primarily due to higher net sales.
Liquidity and Capital Resources
Liquidity
Our principal sources of liquidity consist of our existing cash and cash equivalents, funds expected to be generated from operations and funds from our credit facilities. Based upon our current cash balances, our estimates of funds expected to be generated from operations, as well as from current and projected availability under our current credit facilities, we believe that we will be able to finance current and planned operating requirements, capital expenditures, required debt repayments and contractual obligations and commercial commitments for at least the next 12 months from the issuance date of this Form 10-Q.
Our ability to generate sufficient positive cash flows from operations is subject to many risks and uncertainties, including future economic trends and conditions, demand for our products, supply chain challenges, price inflation, foreign currency exchange rates, and other risks and uncertainties applicable to us and our business (see “Risk Factors” contained in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2025).
Capital resources
As of March 31, 2026, we had $996.0 million in combined cash and availability under our credit facilities, which is an increase of $223.7 million compared to March 31, 2025. Information about our credit facilities and long-term debt is presented in Note 6 “Financing Arrangements” in the Notes to Condensed Consolidated Financial Statements included in Part I, Item 1 of this Form 10-Q, which is incorporated herein by this reference.
As of March 31, 2026, approximately 13% of our cash was held in regions outside of the United States. We continue to maintain our indefinite reinvestment assertion with respect to most jurisdictions in which we operate because of local cash requirements to operate our business. If we were to repatriate cash to the United States outside of settling intercompany balances, we may need to pay incremental foreign withholding taxes which, subject to certain limitations, generate foreign tax credits for use against our U.S. tax liability, if any. Additionally, we may need to pay certain state income taxes.
Significant cash obligations
We plan to utilize our liquidity (as described above) and our cash flows from business operations to fund our material cash requirements. The table below summarizes certain significant cash obligations as of March 31, 2026 that will affect our future liquidity (in millions).
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| |
Payments Due By Period |
|
Total |
|
Remainder of 2026 |
|
2027 - 2028 |
|
2029 - 2030 |
|
Thereafter |
Debt(1) |
473.8 |
|
|
271.3 |
|
|
71.6 |
|
|
128.9 |
|
|
2.0 |
|
Interest payments(2) |
39.7 |
|
|
9.3 |
|
|
19.9 |
|
|
10.1 |
|
|
0.4 |
|
Finance leases, including imputed interest(3) |
1.2 |
|
|
0.3 |
|
|
0.5 |
|
|
0.4 |
|
|
— |
|
Operating leases, including imputed interest(4) |
282.0 |
|
|
26.5 |
|
|
66.9 |
|
|
59.1 |
|
|
129.5 |
|
Minimum lease payments for leases signed but not yet commenced(5) |
10.1 |
|
|
0.4 |
|
|
1.6 |
|
|
1.9 |
|
|
6.2 |
|
Unconditional purchase obligations(6) |
96.7 |
|
|
52.5 |
|
|
43.8 |
|
|
0.4 |
|
|
— |
|
Uncertain tax contingencies(7) |
0.9 |
|
|
— |
|
|
0.2 |
|
|
— |
|
|
0.7 |
|
| Total |
$ |
904.4 |
|
|
$ |
360.3 |
|
|
$ |
204.5 |
|
|
$ |
200.8 |
|
|
$ |
138.8 |
|
|
|
|
|
|
|
|
|
|
|
(1) Excludes unamortized debt discounts, unamortized debt issuance costs, and fair value adjustments. Includes $44.1 million of outstanding ABL borrowings and $258.3 million of convertible notes which matured on May 1, 2026 and were settled in cash. For further details related to long-term debt, see Note 6 “Financing Arrangements” in the Notes to the Condensed Consolidated Financial Statements in Part I, Item 1 of this Form 10-Q. |
(2) Long-term debt may have fixed or variable interest rates. For further details, see Note 6 “Financing Arrangements” in the Notes to the Condensed Consolidated Financial Statements in Part I, Item 1 of this Form 10-Q. |
(3) Represents commitments for future minimum payments under financing leases. For further details, see Note 5 “Leases” in the Notes to the Condensed Consolidated Financial Statements in Part I, Item 1 of this Form 10-Q. |
(4) Represents commitments for minimum lease payments under operating leases. For further details, see Note 5 “Leases” in the Notes to the Condensed Consolidated Financial Statements in Part I, Item 1 of this Form 10-Q. |
(5) Represents future minimum lease payments under lease agreements that have not yet commenced as of March 31, 2026, in relation to future TravisMathew retail stores. For further discussion, see Note 5 “Leases” in the Notes to the Condensed Consolidated Financial Statements in Part I, Item 1 of this Form 10-Q. |
(6) During the normal course of business, we enter into agreements to purchase goods and services, including commitments for endorsement agreements with professional athletes and other endorsers, consulting and service agreements, and intellectual property licensing agreements pursuant to which we are required to pay royalty fees. The amounts listed above approximate the minimum purchase obligations we are obligated to pay under these agreements over the next five years and thereafter as of March 31, 2026. The actual amounts paid under some of the agreements may be higher or lower than these amounts. In addition, we also enter into unconditional purchase obligations with various vendors and suppliers of goods and services during the normal course of business through purchase orders or other documentation or that are undocumented except for an invoice. For further details, see Note 12 “Commitments & Contingencies” in the Notes to the Condensed Consolidated Financial Statements in Part I, Item 1 of this Form 10-Q. |
(7) Amounts represent current and non-current portions of uncertain income tax positions as recorded on our Condensed Consolidated Balance Sheets as of March 31, 2026. Amounts exclude uncertain income tax positions that we would be able to offset against deferred taxes. For further discussion, see Note 11 “Income Taxes” in the Notes to the Condensed Consolidated Financial Statements in Part I, Item 1 of this Form 10-Q. |
During the normal course of business, we have made certain indemnities, commitments and guarantees under which we may be required to make payments in relation to certain transactions. These include (i) intellectual property indemnities to our customers and licensees in connection with the use, sale and/or license of our products or trademarks, (ii) indemnities to various lessors in connection with facility leases for certain claims arising from such facilities or leases, (iii) indemnities to vendors and service providers pertaining to the goods or services provided to us or based on the negligence or willful misconduct, and (iv) indemnities involving the accuracy of representations and warranties in certain contracts. In addition, we have made contractual commitments to each of our officers and certain other employees providing for severance payments upon the termination of employment. We have also issued guarantees in the form of a standby letter of credit in the amount of $0.4 million primarily as security for contingent liabilities under certain workers’ compensation insurance policies. We have also made certain indemnities under which we may be required to make payments in relation to divestitures of the Topgolf and Jack Wolfskin businesses. These include indemnities against (i) damages arising from certain ongoing litigation matters, (ii) certain exempted claims and (iii) certain pre-closing tax and other liabilities.
The duration of these indemnities, commitments and guarantees varies, and in certain cases may be indefinite. The majority of these indemnities, commitments and guarantees do not provide for any limitation on the maximum amount of future payments we could be obligated to make. Historically, costs incurred to settle claims related to indemnities have not been material to our financial position, results of operations or cash flows. In addition, we believe the likelihood is remote that payments under the commitments and guarantees described above will have a material effect on our financial condition. The fair value of indemnities, commitments and guarantees that we issued during the three months ended March 31, 2026 was not material to our financial position, results of operations or cash flows.
In addition to the contractual obligations listed above, our liquidity could also be adversely affected by an unfavorable outcome with respect to claims and litigation that we are subject to from time to time (see Note 12 “Commitments & Contingencies” in the Notes to Condensed Consolidated Financial Statements in Part I, Item 1 and “Legal Proceedings” in Part II, Item 1 of this Form 10-Q).
We have no material off-balance sheet arrangements.
Capital expenditures
Total estimated capital expenditures for the year ending December 31, 2026, are expected to be approximately $35.0 million to $40.0 million.
Critical Accounting Estimates
For the three months ended March 31, 2026, there have been no material changes to our critical accounting estimates from the information reported in our Form 10-K for the fiscal year ended December 31, 2025, filed with the SEC on February 27, 2026.
Item 3. Quantitative and Qualitative Disclosures about Market Risk
We use derivative financial instruments to mitigate our exposure to changes in foreign currency exchange rates and interest rates. Transactions involving these financial instruments are with creditworthy banks, primarily banks that are party to our credit facilities (see Note 6 “Financing Arrangements” and Note 15 “Derivatives and Hedging” in the Notes to Condensed Consolidated Financial Statements in Part 1, Item 1 of this Form 10-Q). The use of these instruments exposes us to market and credit risk which may at times be concentrated with certain counterparties, although counterparty nonperformance is not anticipated.
Foreign Currency Fluctuations
Information about our foreign currency hedging activities is set forth in Note 15 “Derivatives and Hedging” in the Notes to Condensed Consolidated Financial Statements included in Part I, Item 1, of this Form 10-Q, which is incorporated herein by this reference.
As part of our risk management procedure, a sensitivity analysis model is used to measure the potential loss in future earnings of market-sensitive instruments resulting from one or more selected hypothetical changes in interest rates or foreign currency values. The sensitivity analysis model quantifies the estimated potential effect of unfavorable movements of 10% in foreign currencies to which we were exposed at March 31, 2026 through our foreign currency forward contracts.
At March 31, 2026, the estimated loss from our foreign currency forward contracts, calculated using the sensitivity analysis model described above, was $36.0 million. We believe that such a hypothetical loss from our foreign currency forward contracts would be partially offset by increases in the value of the underlying transactions being hedged.
The sensitivity analysis model is a risk analysis tool and does not purport to represent actual losses in earnings that we will incur, nor does it consider the potential effect of favorable changes in market rates. It also does not represent the maximum possible loss that may occur. Actual future gains and losses will differ from those estimated because of changes or differences in market rates and interrelationships, hedging instruments and hedge percentages, timing and other factors.
Interest Rate Fluctuations
We are exposed to interest rate risk from our credit facilities and long-term borrowing commitments. Outstanding borrowings under these credit facilities and long-term borrowing commitments accrue interest as described in Note 6 “Financing Arrangements” in the Notes to Condensed Consolidated Financial Statements in Part I, Item 1, and in “Liquidity and Capital Resources” in Part I, Item 2 of this Form 10-Q. Our long-term borrowing commitments are subject to interest rate fluctuations, which could be material to our cash flows and results of operations. In order to mitigate this risk, we may enter into interest rate swap contracts as part of our interest rate risk management strategy. Information about our interest rate hedges is provided in Note 15 “Derivatives and Hedging” in the Notes to Condensed Consolidated Financial Statements in Part I, Item 1 of this Form 10-Q. In order to determine the impact of unfavorable changes in interest rates on our cash flows and results of operations, we performed a sensitivity analysis as part of our risk management procedures. The sensitivity analysis quantified that the incremental expense incurred by a 10% increase in interest rates approximately result in an annual increase of $0.6 million in interest expense on our existing principal balance as of March 31, 2026.
Inflation
The continued increase in inflation partially contributed to the increase in the cost of our products as well as our operating costs. If the cost of our products, employee costs, or other costs continue to be subject to significant inflationary pressures, such inflationary pressures may have an adverse effect on our ability to maintain current levels of gross margin and selling, general and administrative expenses. Further, we may not be able to offset these increased costs through price increases. As a result, our inability to quickly respond to inflation could harm our cash flows and results of operations in the future.
Item 4. Controls and Procedures
Disclosure Controls and Procedures.
We carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness, as of March 31, 2026, of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)). Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective as of March 31, 2026.
Changes in Internal Control over Financial Reporting.
In connection with the completion of the sale of our 60% equity interest in Topgolf and our resulting equity method investment, management implemented and evaluated controls related to the accounting and disclosure of the investment. Other than this, there were no changes in our internal controls over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting during the three months ended March 31, 2026.
Because of the inherent limitations of internal control over financial reporting, including the possibility of collusion or improper management override of controls, material misstatements due to error or fraud may not be prevented or detected on a timely basis. Also, projections of any evaluation of the effectiveness of the internal control over financial reporting to future periods are subject to the risk that the controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
The information set forth in Note 12 “Commitments & Contingencies” in the Notes to Condensed Consolidated Financial Statements included in Part I, Item 1, of this Form 10-Q, is incorporated herein by this reference.
Item 1A. Risk Factors
Certain Factors Affecting Callaway Golf Company
We have included in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2025, a description of certain risks and uncertainties that could affect our business, future performance or financial condition (the “Risk Factors”). Investors should consider the Risk Factors prior to making an investment decision with respect to our stock. There are no material changes from the disclosure provided in the Form 10-K for the year ended December 31, 2025 with respect to the Risk Factors.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds
Stock Purchases
In January 2026, we announced that our Board of Directors authorized a $200.0 million share repurchase program (the “Repurchase Program”) under which we are authorized to repurchase shares of our common stock in the open market or in private transactions, subject to our assessment of market conditions and repurchase opportunities. We will assess market conditions, buying opportunities and other factors from time to time and will make strategic repurchases as appropriate. The repurchases will be made in compliance with Rule 10b-18 under the Exchange Act, subject to market conditions, applicable legal requirements and other factors, and the repurchases will be made consistent with the terms of our credit facilities, which define the amount of stock that can be repurchased. The Repurchase Program does not require us to acquire a specific number of shares and it will remain in effect until completed or until terminated by the Board of Directors. During the first quarter of 2026, we repurchased 2.8 million shares of our common stock under the Repurchase Program at a weighted average price per share of $13.63, for a total cost of $37.8 million.
The following table summarizes our purchases during the first quarter of 2026 and includes amounts repurchased under the Repurchase Program and shares withheld to satisfy payroll tax withholding obligations in connection with the vesting and settlement of employee restricted stock unit awards and performance share unit awards. Our repurchases of shares of common stock are recorded at cost and result in a reduction of shareholders’ equity.
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|
Three Months Ended March 31, 2026 |
|
|
Total Number
of Shares
Purchased
|
|
Weighted Average Price Paid per Share |
|
Total Number of Shares Purchased as Part of Publicly Announced Program |
|
Maximum Dollar Value that May Yet Be Purchased Under the Program |
| January 1, 2026 - January 31, 2026 |
|
— |
|
|
$ |
— |
|
|
— |
|
|
$ |
200,000,000 |
|
| February 1, 2026 - February 28, 2026 |
|
114,799 |
|
|
14.86 |
|
|
— |
|
|
200,000,000 |
|
| March 1, 2026 - March 31, 2026 |
|
2,965,993 |
|
|
13.61 |
|
|
2,774,002 |
|
|
162,200,182 |
|
| Total |
|
3,080,792 |
|
|
$ |
13.67 |
|
|
2,774,002 |
|
|
$ |
162,200,182 |
|
|
|
|
|
|
|
|
|
|
|
During the first quarter of 2026, we also repurchased 0.3 million shares of our common stock at an average cost per share of $13.93, for a total cost of $4.3 million, which were related to shares withheld to satisfy payroll tax withholding obligations as described above and not pursuant to the Repurchase Program.
Item 3. Defaults upon Senior Securities
None.
Item 4. Mine Safety Disclosures
None.
Item 5. Other Information
(a) The below events occurred within four business days of the filing date of this periodic report and, as such, we are disclosing the occurrence of the events under Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers, below instead of in a stand-alone Current Report on Form 8-K.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On May 7, 2026, we entered into amended and restated employment agreements with Oliver G. (Chip) Brewer, our President and Chief Executive Officer, Brian P. Lynch, our Executive Vice President, Chief Financial Officer and Chief Legal Officer, Mark F. Leposky, our Executive Vice President and Chief Supply Chain Officer, Glenn F. Hickey, our Executive Vice President and President, Callaway Golf Sales, Timothy R. Reed, our Executive Vice President, Research and Development and Tour, and Angela Deskins, our Executive Vice President and Chief People Officer (the “Executive Employment Agreements”), which superseded and replaced their prior employment agreements effective as of May 7, 2026.
The compensation and benefits under the Executive Employment Agreements are generally consistent with the compensation and benefits in effect under the prior employment agreements, but reflect certain adjustments to reflect changes in applicable law and best practices since those employment agreements were first executed. Each Executive Employment Agreement provides for at-will employment and has no fixed term. The Executive Employment Agreements set forth the base salary, incentive compensation, and, in general terms, the benefits and perquisites that the executive officer is entitled to, which remain unchanged from those in effect immediately prior to the effectiveness of the Executive Employment Agreements. The Executive Employment Agreements also set forth the benefits and rights the executive officer is entitled to upon termination of employment.
In the event of an executive’s termination by the Company other than for cause or an executive’s resignation for good reason, in each case that does not occur within 24 months following a change in control, the executive is generally entitled to the following benefits (i) a cash payment based on the incentive payment the executive would have received in light of actual performance as measured against the requirements of the annual incentive plan and pro-rated to the date of termination; (ii) 1.0x (1.5x) for Mr. Brewer) the sum of the executive’s then-current base salary and target bonus, paid over 12 months (18 months for Mr. Brewer); (iii) the vesting of all unvested long-term incentive compensation awards held by the executive that would have vested had the executive continued to perform services for 12 months (18 months for Mr. Brewer) from the date of termination; and (iv) the payment of premiums owed for COBRA insurance benefits and continuation of financial, tax and estate planning services for 12 months (18 months for Mr. Brewer) from the date of termination and outplacement for 12 months.
In the event of an executive’s termination by the Company other than for cause or an executive’s resignation for good reason, in each case that occurs within 24 months following a change in control, the executive is generally entitled to the following benefits (i) a cash payment based on the incentive payment the executive would have received in light of actual performance as measured against the requirements of the annual incentive plan and pro-rated to the date of termination; (ii) 2.0x the sum of the then current base salary and target bonus, paid over 24 months; (iii) the vesting of all unvested long-term incentive compensation awards held by the executive; and (iv) the payment of premiums owed for COBRA insurance benefits and continuation of financial, tax and estate planning services for 24 months and continuation of financial, tax and estate planning services for 24 months from the date of termination and outplacement for 12 months.
The benefits payable upon a termination due to death or disability under the Executive Employment Agreements are generally unchanged from the existing executive employment agreements.
Under the Executive Employment Agreement, all post-termination benefits are subject to the executive executing a release of claims in our favor and continued compliance with his or her Executive Employment Agreement. The Executive Employment Agreements also include a standard “best after tax” provision for purposes of Section 280G of the Internal Revenue Code.
The foregoing descriptions of the Executive Employment Agreements do not purport to be complete and are qualified in their entirety by reference to the Executive Employment Agreements, copies of which are filed as Exhibits 10.1 through 10.6 to this Quarterly Report on Form 10-Q and are incorporated herein by reference.
(c) 10b5-1 Trading Arrangements
During the three months ended March 31, 2026, none of our officers or directors adopted or terminated any contract, instruction or written plan for the purchase or sale of our securities that was intended to satisfy the affirmative defense conditions of Rule 10b5-1(c) or any “non Rule 10b5-1 trading arrangement.”
Item 6. Exhibits
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| 3.1 |
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| 3.2 |
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| 10.1 |
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| 10.2 |
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| 10.3 |
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| 10.4 |
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| 10.5 |
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| 10.6 |
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10.7** |
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| 10.8 |
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| 31.1 |
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| 31.2 |
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| 32.1 |
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| 101.1 |
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XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. |
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| 101.2 |
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XBRL Taxonomy Extension Schema Document † |
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| 101.3 |
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XBRL Taxonomy Extension Calculation Linkbase Document † |
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| 101.4 |
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XBRL Taxonomy Extension Definition Linkbase Document † |
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| 101.5 |
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XBRL Taxonomy Extension Label Linkbase Document † |
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| 101.6 |
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XBRL Taxonomy Extension Presentation Linkbase Document † |
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| 104 |
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Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) † |
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(†) Included with this Report.
** Certain schedules, exhibits and annexes have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company hereby undertakes to furnish supplemental copies of any of the omitted schedules, exhibits and annexes upon request by the SEC; provided, however, that the Company may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any schedules, exhibits or annexes so furnished.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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| CALLAWAY GOLF COMPANY |
|
|
| By: |
/s/ Jennifer Thomas |
|
Jennifer Thomas |
|
Senior Vice President and Chief Accounting Officer |
Date: May 7, 2026
EX-10.1
2
a1101breweroliver-employme.htm
EX-10.1
Document
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is entered into as of May 7, 2026 (the “Effective Date”), by and between Callaway Golf Company, a Delaware corporation, (the “Company”) and me, Oliver G. Brewer, III, each a “Party” and collectively the “Parties.” References to this “Agreement” shall include all of the Schedules attached hereto.
1.Term. My employment hereunder (“Employment”) shall be for a term (the “Term”) commencing on the Effective Date and continuing indefinitely until terminated in accordance with Section 4 of this Agreement. The date my Employment with the Company ends is referred to as my “Termination Date” irrespective of which Party terminated or why termination occurred. Notwithstanding anything to the contrary in the foregoing, my Employment hereunder is terminable at will by the Company or by me at any time (for any reason or for no reason), subject to the provisions of Section 4 hereof.
2.Position and Duties.
a.During the Term, I will serve in the position designated on Schedule A or in such other position or positions as the Board of Directors of the Company (the “Board”) specifies from time-to-time and shall have the duties, responsibilities and obligations customarily assigned to individuals serving in such position or positions as defined by the Board.
I agree to devote all of my working time and efforts to the performance of my duties for the Company and to faithfully and diligently serve the Company in accordance with this Agreement and the guidelines, policies and procedures of the Company, including its Employee Handbook and Code of Conduct, as such shall be adopted, modified or otherwise established by the Company from time-to-time. This does not prohibit me from managing personal investments or involvement in volunteer charitable or community activities provided that they do not violate the terms of this Agreement or interfere or conflict with the satisfactory performance of my Employment duties in the judgment of the Board or its designated representative. By signing this Agreement, I represent to the Company that (i) I am not currently engaged in any outside business activities for remuneration (whether cash or otherwise), and (ii) providing material assistance to any business, or otherwise pursuing any business opportunity, in each case under this clause (ii) that would create a conflict of interest.
b.I can and will perform all of my Employment duties without the use or disclosure of any trade secrets or otherwise protected information of a third party that I am not authorized by that third party to use for the Company’s benefit. I am subject to no legal obligations, contracts, or other obligations that would prevent me from performing the duties of my position with the Company, nor am I in violation of any such legal obligations.
3.Compensation, Benefits and Expenses. I agree to the compensation and benefits described in Schedule A as full and adequate compensation for my services. I understand that my compensation and benefits are provided subject to the Company policies and procedures generally applicable to all Company employees with adjustments as determined by the Board.
4.Termination and Separation Payment Rights. This Agreement and my Employment under it may be terminated as set forth in this Section 4. Upon any termination of my Employment, I shall be entitled to receive my “Accrued Obligations.” For purposes of this Agreement, “Accrued Obligations” as used throughout this Agreement is defined as (A) earned but unpaid base salary, (B) accrued but unused payments or benefits to which I am entitled under Company benefit plans, including the Company’s retirement, insurance and other benefit and compensation plans or programs then in effect, in accordance with the terms of such plans and programs, and (C) accrued but unused paid time off (“PTO”), if applicable. The Accrued
Obligations described in the preceding sentence shall be paid within thirty (30) days after the Termination Date (or such earlier date as may be required by applicable law).
a.Death or Permanent Disability.
i. My Employment will terminate upon my death. If terminated due to death, then my estate will be paid all of my Accrued Obligations through the Termination Date and I will be eligible to receive the “Death Benefit” described in Schedule B, subject to the requirements set forth therein.
ii. Either the Company or I may terminate my employment following my “Permanent Disability” (as defined in Schedule B). If my Employment is terminated as a result of my Permanent Disability, then I will be paid all of my Accrued Obligations through the Termination Date. In addition, in the event of my termination of Employment as a result of my Permanent Disability, I will be eligible to receive the “Permanent Disability Benefit” described in Schedule B, subject to the requirements set forth therein.
b.Substantial Cause. The Company may terminate my Employment for Substantial Cause. If the Company terminates my Employment for Substantial Cause, then I will be paid my Accrued Obligations through the Termination Date and shall not be entitled to any additional severance or other compensation, including any unvested Long-Term Incentive Awards (unless otherwise provided in the applicable Long-Term Incentive Award agreement). The occurrence of any of the events described in parts (i) – (v) below, as reasonably determined by the Board or its designated representative, shall be “Substantial Cause”:
i.my material breach of any provisions of this Agreement or any other material, written contract with the Company or any Related Company (as defined in Schedule C) or under any code of conduct of the Company or any Related Company);
ii.willful and continued failure by me to substantially perform my duties under this Agreement as determined by the Board, including failure to cooperate with any internal investigation authorized by the Board or its designated representative or an investigation by regulatory or law enforcement authorities;
iii.intentional misconduct by me (including, but not limited to, misappropriation, fraud, including misconduct related to accounting and financial statements, embezzlement or use or possession of illegal drugs during work) and/or any other action that is damaging or detrimental in a significant manner to the Company or any of the Related Companies;
iv.my conviction (or plea of no contest) for any felony (including, but not limited to, any felony involving fraud, moral turpitude, embezzlement or theft in connection with my duties or in the course of my Employment with the Company), or any comparable offense in any applicable foreign jurisdiction; or
v. my use of alcohol or illicit drugs in a manner that has or would reasonably be expected to have a detrimental effect on my performance, my duties to the Company, or the reputation of the Company or any Related Company.
c.Good Reason. I may terminate my Employment under this Agreement for “Good Reason.” If I terminate my Employment for Good Reason, then I will be paid my Accrued Obligations through the Termination Date, and I will be eligible to receive the benefits provided for in Schedule B for a “Severance Eligible Termination,” subject to the requirements set forth therein.
For purposes of this Agreement, “Good Reason” means the occurrence of any of the following without my prior consent:
i.at any time during the Term (including at any time following the date of a Change in Control), a material breach of this Agreement by the Company; or
ii.at any time during the Term (including at any time following the date of a Change in Control), any material diminishment in the title, position, duties, responsibilities or status that I had with the Company, as a publicly traded entity, immediately prior to such diminishment; or
iii.at any time during the Term (including at any time following the date of a Change in Control), any requirement that I relocate or any assignment to me of duties that would make it unreasonably difficult for me to maintain the principal residence I had immediately prior to such requirement or assignment, and the parties agree that an increase in my one-way commuting distance by more than thirty-five (35) miles prior to such relocation or assignment as a result of any such relocation or assignment shall be automatically considered unreasonably difficult for purposes of this clause (iii); or
iv.at any time during the Term, a material reduction in my Base Salary or Target Incentive (as defined in Schedule B), or a material reduction in my year-over-year Target LTI Opportunity; or
v.during the twenty-four (24) month period following the date of a Change in Control, any reduction, limitation or failure to pay or provide any of the compensation, reimbursable expenses, Long-Term Incentive Awards (as defined in Schedule B), incentive programs, or other benefits or perquisites provided to me under the terms of this Agreement or any other agreement or understanding between the Company and me, or pursuant to the Company's written policies and past practices.
In order for “Good Reason” for my resignation to exist, the foregoing events must remain uncured for more than thirty (30) days despite my written notice to the Company advising it of such occurrence within ninety (90) days of my becoming aware of the occurrence. I will officially resign no later than ninety (90) days following the earlier of the end of the thirty (30) day cure period or the date the Company provides me with written notice of its intent not to cure the event giving rise to Good Reason. If I do not give the Company written notice of the occurrence of an event listed in this Section within ninety (90) days of my becoming aware of it, or such event is cured by the Company within thirty (30) days after written notification from me regarding such occurrence, I will not have “Good Reason” to terminate my Employment as a result of such occurrence.
d.Resignation without Good Reason. If I terminate my Employment without Good Reason, then I will be paid my Accrued Obligations through the Termination Date and shall not be entitled to any additional severance or other compensation, including any unvested Long-Term Incentive Awards.
e.Termination without Substantial Cause. The Company may terminate my Employment at its discretion at any time without Substantial Cause. If the Company terminates my Employment without Substantial Cause, then I will be paid my Accrued Obligations through the Termination Date, and I will be eligible to receive the benefits provided for in Schedule B for a “Severance Eligible Termination,” subject to the requirements set forth therein.
f.Deemed Resignations. Upon termination of my Employment for any reason, unless otherwise specified in a written agreement between the Company and me, I shall be deemed to have resigned from all offices, directorships, and other employment positions, if any, then held with the Company and any Related Company, and I shall take all actions reasonably requested by the Company to effectuate the foregoing.
5.Clawbacks and Forfeitures.
a.Notwithstanding anything in this Agreement or any other agreement between me and the Company or any Related Company, I agree that I will be subject to, and any compensation paid to me under this Agreement or otherwise will be subject to, reduction, cancellation, forfeiture and/or recoupment under any clawback policy adopted by the Company from time to time that is, by its terms, applicable to me, including the Policy for Recovery of Erroneously Awarded Compensation adopted by the Company effective October 2, 2023 (the “Clawback Policy”), and any other policy adopted by the Company pursuant to the requirements under Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Rule 10D of the Securities Exchange Act of 1934, as amended, and any rules adopted by the national securities exchange on which the Company’s securities are listed, as such policy(ies) may be amended from time to time. Upon the request of the Company, I also agree without further consideration to execute an amendment evidencing the incorporation of the policies into this Agreement and/or my acknowledgment of the application of such policies to my compensation.
b.If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of my intentional misconduct or gross negligence, with respect to any financial reporting requirement under the United States securities laws, then, if requested to do so by the Board of Directors or the Compensation Committee of the Company, in addition to any rights the Company may have under Section 5(a) above, I will forfeit and reimburse the Company for all of the following: (i) any incentive or incentive compensation paid to me based upon such erroneously stated financial information, (ii) any incentive, incentive compensation or equity compensation I received during the twelve (12) month period following the earlier of the first public issuance or filing with the Securities and Exchange Commission of the financial document embodying the financial reporting requirement, (iii) any profits realized by me personally from the sale of Company securities during that same twelve (12) month period, (iv) if my Employment is terminated or has been terminated, my right to receive Special Severance or Change in Control Special Severance, if applicable, and (v) if I am terminated or have been terminated, any unvested Long-Term Incentive Awards.
c.I understand that the Company’s exercise of the recoupment and forfeiture provisions in this Section 5 will not constitute a breach of the terms of this Agreement by the Company and will not otherwise give me the right to terminate my Employment for Good Reason.
6.Code Section 409A Compliance.
a. I understand and agree that this Agreement has been drafted with the intention to comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and its applicable regulations (“Section 409A”). The Company is hereby advising me to obtain independent advice regarding the tax consequences of any compensation payable under this Agreement and I represent I have done so or have determined not to do so in my discretion despite the Company’s advisement. I acknowledge and agree that the Company will not be liable for and will bear no responsibility for any penalties that may be assessed against me for violation of Section 409A.
b. Notwithstanding any other provision of this Agreement, no severance pay or other benefits payable under this Agreement, that when considered together with any other severance payments or separation benefits, are considered deferred compensation under Section 409A or are otherwise intended to be exempt from Section 409A pursuant to Section 1.409A-1(b)(9) of the Treasury Regulations issued under Section 409A and are payable upon my termination of employment, will be paid or otherwise provided until I have had a “separation from service” within the meaning of Section 409A. Each payment and benefit payable under this Agreement is intended to constitute a separate payment, and the right to a series of installment payments will be treated as a right to a series of separate payments (including, for the avoidance of doubt, the base salary and annual incentive components of the severance or termination benefits payable in installments pursuant to Schedule B, and each such component shall be treated as a separate payment). To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A.
c. If at the time of my termination of Employment with the Company I am a “specified employee” as defined in Section 409A, then, to the extent required under Section 409A, the Company will not commence payment of any compensation or benefits payable upon my “separation of service” until the date that is six (6) months and one (1) day following my Termination Date (or the earliest date as is permitted under Section 409A). In no event will any payment or benefit under this Agreement that is subject to Section 409A be subject to offset by any other amount unless otherwise permitted by Section 409A.
d. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A.
d. If and to the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Section 409A, (i) all such expenses or other reimbursements hereunder will be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred, (ii) any right to reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit, (iii) the amount of expenses eligible for reimbursement, or the in-kind benefits provided, during any taxable year will not affect the expenses eligible for reimbursement, or the in-kind benefits to be provided, in any other taxable year, and (iv) any reimbursement will be for expenses incurred during the period of time specified in this Agreement and if no time period is specified, will be for expenses incurred during my lifetime.
7.Code Section 280G.
a. Best Pay Provision. In the event that any payment or benefit received or to be received by me pursuant to the terms of any plan, arrangement or agreement (including any payment or benefit received in connection with a change in ownership or control or the termination of my Employment) (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part) to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, then the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (after subtracting the amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which I would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). Except to the extent that an alternative reduction order would result in a greater economic benefit to me on an after-tax basis, the parties intend that the Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to me that are exempt from Section 409A of the Code, (B) reduction of any other cash payments or benefits otherwise payable to me that are exempt from Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A of the Code, (C) reduction of any other payments or benefits otherwise payable to me on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting and payment with respect to any equity award that is exempt from Section 409A of the Code, and (D) reduction of any payments attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A of the Code; provided, in case of clauses (A), (B) and (C), that reduction of any payments or benefits attributable to the acceleration of vesting of Company equity awards shall be first applied to equity awards with later vesting dates; provided, further, that, notwithstanding the foregoing, any such reduction shall be undertaken in a manner that complies with and does not result in the imposition of additional taxes on me under Section 409A of the Code. The foregoing reductions shall be made in a manner that results in the maximum economic benefit to me on an after-tax basis and, to the extent economically equivalent payments or benefits are subject to reduction, in a pro rata manner.
b. Determinations. All determinations regarding the application of this Section 7 shall be made by an independent accounting firm or consulting group with nationally recognized standing and substantial expertise and experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax retained by the Company prior to the date of the applicable change in ownership or control (the “280G Firm”). For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, and, in calculating the Excise Tax, (i) no portion of the Total Payments shall be taken into account which (A) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (B) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, (ii) no portion of the Total Payments the receipt or enjoyment of which I shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the 280G Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. All determinations related to the calculations to be performed pursuant to this Section 7 shall be done by the 280G Firm. The 280G Firm will be directed to submit its determination and detailed supporting calculations to both the Company and me within fifteen (15) days after notification from either the Company or me that I may receive payments which may be “parachute payments.” The Company and I will each provide the 280G Firm access to and copies of any books, records, and documents as may be reasonably requested by the 280G Firm and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Agreement. The fees and expenses of the 280G Firm for its services in connection with the determinations and calculations contemplated by this Agreement will be borne solely by the Company.
8.Restrictive Covenants.
a.Confidential Information.
i.The Company will entrust me with Confidential Information related to my fiduciary position of trust and confidence with the Company based on the commitments I am making in this Agreement and would not do so without the promises I am making in this Agreement. “Confidential Information” means information, or a compilation of information, in any form (tangible or intangible), related to the Company’s or any of the Related Companies’ business and of value to it that I first acquire or gain access to as a consequence of my Employment with the Company if the Company has not made it public or authorized public disclosure of it and it is not readily available through lawful and proper means to the public or others in the industry who have no obligation to keep it confidential. Confidential Information includes, but is not limited to: the Company’s business plans, financial information and analysis, customer and prospective customer lists, employee lists, marketing plans and strategies, research and development data, buying practices, vendor lists, internal business methods, techniques, technical data, know-how, innovations, computer programs, un-patented inventions, trade secrets, and information about the business affairs of third parties (including, but not limited to, customers, licensors and suppliers) that such third parties provide to the Company in confidence. Due to its special value and utility as a compilation, a confidential compilation (like a customer list) will remain protected as Confidential Information even if some items of information within the list are in the public domain. Private disclosure of otherwise Confidential Information to parties the Company is doing business with for business purposes will not cause the information to lose its protected status under this Agreement.
ii.During my Employment and for so long thereafter as the information qualifies as “Confidential Information” under this Agreement, I will not engage in any use or disclosure of Confidential Information that is not authorized by the Company and undertaken for the benefit of the Company, except as may be permitted under Section 8(f) below. These obligations do not prohibit my use of generally available knowledge, skill and education that is not specific to the Company or its business relationships but is instead knowledge generic to the industry or my profession. I will comply with all Company policies and directives concerning my use, storage, and transfer of Confidential Information. Unless prohibited by law from doing so, I will notify the Company as quickly as possible after being served with a subpoena, order, or other legal mandate requiring the production of Confidential Information so that the Company can take reasonable steps to protect its interests.
b.Intellectual Property.
i.I understand that I am being employed and paid to use all of my abilities, including my creative and inventive skills, for the benefit of the Company. Accordingly I agree that any inventions, improvements, discoveries, ideas, concepts, trademarks, service marks, trade names, copyright eligible works of authorship and mask works (hereinafter referred to collectively as “Intellectual Property”) that I develop, discover, conceive or create while employed with the Company or providing services to a Related Company, alone or with others, during regular working hours or outside of them, that either: (A) relates to the business of the Company or the Related Company or their actual or demonstrably anticipated research and development, (B) is developed or discovered with the assistance of Confidential Information, tools, equipment, personnel or other resources of the Company or a Related Company, or (C) is suggested by, related to, or result from any work performed by me for the Company or a Related Company; will be deemed “Work Product.” I hereby fully and finally assign to the Company all right, title and interest in and to all of my Work Product. My Work Product will be the property of the Company from the date of conception, irrespective of when, how, or if it is ever reduced to tangible form or practice. My assignment of Work Product shall include assignment to the Related Company where the interests of a Related Company are involved as determined by the Company. Notwithstanding the forgoing, nothing in this Agreement creates or requires assignment of an invention that cannot be assigned in an employment agreement under controlling law where controlling state law has such a limitation.
ii.All original works of authorship made by me, solely or jointly with others, while employed with the Company that relate to the Company’s line of business will be considered something done within the scope of my Employment and thus “work made for hire” under the Copyright Act of 1976 (17 U.S.C. § 101) and all comparable laws throughout the world. All ownership and copyrights in this “work for hire” will belong exclusively to the Company or its designee, and to the extent any rights therein are not automatically conveyed to the Company they will be deemed assigned to the Company. In this respect, the covered original works of authorship are also Work Product. Original works of authorship (“Work Products”) covered by the foregoing are understood to include, without limitation, all writings, source code, computer programs, algorithms, photos, images, drawings, branding concepts, and other work product of any nature whatsoever consisting of copyrightable subject matter. I waive all claims I may now or hereafter have to rights of paternity, integrity, disclosure and withdrawal, artists’ rights, and any other rights that may be known as “moral rights” with respect to the above-referenced work made for hire, Work Product, and all derivative works thereof.
iii. I will, during and after my Employment, execute all documents, and will assist the Company in every reasonable and proper way, to obtain and enforce patents, trademark registrations, service mark registrations and copyrights for the Intellectual Property in any and all countries. The Company will pay the expenses for obtaining and enforcing these patents, trademark registrations, service mark registrations, and copyrights. If I retain ownership of any item of Intellectual Property or copyright eligible work that is incorporated into a Company product or service (an item of “Incorporated IP”), I grant to the Company, a non-exclusive, fully paid (royalty-free) and irrevocable worldwide license to incorporate into its products and services, reproduce, make derivative works of, sell, and otherwise use the Incorporated IP.
iv. I acknowledge notice that if I reside and work for the Company in California then my assignment of inventions that qualify as Work Product under Sections 8(b)(i) – (iii) above shall not include inventions which cannot be assigned under California Labor Code §2870; and I acknowledge notice that California Labor Code §2870 provides that: “(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer.”
c.Non-Disparagement. I will not during my Employment with the Company, any applicable Special Severance Period or Change in Control Special Severance Period, and for the twelve (12) months following the later of (i) the date of my termination of Employment or (ii) the last day of any Special Severance Period or Change in Control Severance Period (regardless of whether I receive any severance benefits in a lump sum), in any way undertake to disparage, demean, or cast in a false, misleading or negative light, the Company, its products, services, officers, directors, employees, agents, affiliates, vendors, or customers, or their successors, or in any other way publish negative statements about them or exhibit an attitude of hostility toward them; provided, however, that nothing herein will prohibit me from providing truthful testimony in a legal proceeding or prohibit conduct that is protected conduct under Section 8(f) below.
d.Use and Return of Company Property. All records related to the Company’s business activities and business development efforts made by me in the course of my Employment (such as contact lists, prospect lists, calendars and notes) wherever stored (in email, text messages, cell phones, computers or otherwise) are the property of the Company. I am not authorized to access and use the Company’s computers, email, or related computer systems to pursue competitive business interests. I will preserve records of Company customers, prospects, suppliers, and other business relationships, and will not knowingly use these records to harm the Company’s business interests. Upon termination of my Employment, I will return all such records, and any copies (tangible and intangible) to the Company. Upon request, I will provide the Company reasonable means to access and verify that no Confidential Information or other Company property has been retained by me on personal computers, cell phones, email or cloud storage accounts to the extent such devices or accounts were used by me in connection with my Employment or the Company’s business, or in any other place that is subject to my ownership or control. The Company shall have the right, at its option, to require me to vacate my office or otherwise remain off the Company’s premises and to cease any and all activities on the Company’s behalf without such action constituting a termination of my Employment or a breach of this Agreement.
e.Conflicting Activities. I agree that I am subject to the prohibitions of Schedule C (as defined therein) on the terms and conditions set forth therein. The Company is herein advising me to consult with an attorney before signing this Agreement and becoming bound by the obligations herein, including in Schedule C.
f.Protected Conduct. I understand that nothing in this Agreement prohibits me from communicating directly with, cooperating with, or providing information to, or receiving financial awards from, any federal, state or local government agency (including, without limitation, the Securities and Exchange Commission or the National Labor Relations Board), without notifying or seeking approval from Company before doing so, nor does it prohibit discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that I have reason to believe is unlawful, or exercising any rights I may have under Section 7 of the National Labor Relations Act. I acknowledge notice that pursuant to the Defend Trade Secrets Act (“DTSA”): (i) no individual (consultant, contractor or employee) will be held criminally or civilly liable under Federal or State trade secret law for the disclosure of a trade secret that: (A) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and made solely for the purpose of reporting or investigating a suspected violation of law; or, (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and (ii) an individual who pursues a lawsuit for
retaliation by an employer for reporting a suspected violation of the law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order. The foregoing will not be construed to invite, permit, or limit liability for otherwise illegal activity such a breaking and entering, illegal computer access (hacking) or theft of the Company property.
9.Dispute Resolution. To ensure the timely and economical resolution of disputes that arise in connection with this Agreement, the Parties agree that, except as excluded herein and as set forth in Section 8(f), any and all controversies, claims and disputes arising out of or relating to this Agreement, including without limitation any alleged violation of its terms, or otherwise arising out of or relating to my Employment relationship with the Company or any of the Related Companies, shall be resolved solely and exclusively by final and binding arbitration, before a single neutral arbitrator, held in San Diego County, California through JAMS in conformity with California law and the then-existing JAMS employment arbitration rules, which can be found at https://www.jamsadr.com/rules-employment-arbitration/, or which will be provided upon reasonable request to the Company’s human resources department. The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. shall govern the interpretation and enforcement of this arbitration clause. All remedies available from a court of competent jurisdiction shall be available in the arbitration; provided, however, that either Party may request temporary or preliminary injunctive relief, to the extent permitted by applicable law, from a court of competent jurisdiction if such relief is not available or not available in a timely fashion through arbitration. The arbitrator shall: (a) provide adequate discovery for the resolution of the dispute; and (b) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award. For any claim arising under this Agreement, the arbitrator may award the prevailing Party reasonable attorneys’ fees, cost, and expert fees, if any, and, to the extent provided by applicable law may award reasonable attorneys’ fees, costs, and expert fees on any other claim. The Parties understand that by agreement to arbitrate any claim pursuant to this Section 9, they will not have the right to have any claim subject to arbitration decided by a jury or a court but shall instead have any claim decided through arbitration. Each Party waives any constitutional or other right to bring claims covered by this Agreement other than in their individual capacities. Except as may be prohibited by applicable law, the foregoing waiver includes the ability to assert claims as a plaintiff or class member in any purported class or collective action or representative proceeding. Neither Party may bring any arbitration on a class, collective or representative basis. In the event that any arbitration to which I am a party qualifies as a “Mass Arbitration” under the terms of the then current JAMS Mass Arbitration Procedures and Guidelines, the current version of which can be found at https://www.jamsadr.com/mass-arbitration-procedures, the then current JAMS Mass Arbitration Procedures and Guidelines shall be applied. I further agree that any dispute brought by me against the Company’s parents, subsidiaries, affiliates, officers, directors, or employees, arising out of or relating to my Employment by the Company, shall be subject to arbitration under this Agreement, and such person or entity may enforce this provision as intended third party beneficiaries. Nothing herein shall limit my ability to pursue claims for workers compensation or unemployment benefits or pursue other claims which by law cannot be subject to mandatory arbitration.
10.Miscellaneous.
a.Taxes. I acknowledge that I am responsible for all taxes owed by me related to my compensation and benefits. The amounts payable pursuant to this Agreement and the attached Schedules are subject to all applicable federal and state tax and required withholding.
b.Beneficiaries and Assignment. This Agreement will be binding upon and inure to the benefit of the Parties, and their heirs and successors. This Agreement will automatically inure to the benefit of and be enforceable by the Company and any of the Related Companies, and any successors and assigns. If I become employed with a Related Company without signing a new agreement, the Related Company will step into Company’s position under this Agreement and will be entitled to the same protections and enforcement rights as the Company. I agree to the assignment of this Agreement and all rights and obligations hereunder, including, but not limited to, an assignment in
connection with any merger, sale, transfer or acquisition consummated by the Company or any of its subsidiaries, affiliates or divisions, or relating to all or part of its assets or the assets of its subsidiaries, affiliates or divisions. The Company will cause any such successor to the Company to assume the Company’s obligations under this Agreement, and a failure by the Company to obtain the assumption of this Agreement by any successor to the Company of all or substantially all of the Company's assets or business shall be deemed a material breach of this Agreement. I understand I will have no right to assign my rights, benefits, duties, obligations or other interests in this Agreement as they are personal to me, other than by will or the laws of descent and distribution. Any attempted assignment by me of my rights, benefits, duties, obligations or other interests in this Agreement in violation of this Agreement will be null and void.
c.Entire Understanding. The Parties are relying upon no representations outside of this Agreement in deciding to enter into this Agreement. This Agreement (inclusive of Schedules) is the entire understanding between the Company and me with respect to all matters herein; provided, however, that this Agreement shall be construed to supplement and not eliminate, supersede or replace my current “Employee Invention and Confidentiality Agreement” or any other agreement containing any restriction on my use of the Confidential Information or trade secrets of the Company and its Related Companies, which prior agreements shall be construed to compliment and not conflict with this Agreement with the understanding that if any irreconcilable conflict between the agreements should arise, this Agreement will control (unless any such prior agreement imposes a post-termination noncompetition or nonsolicitation covenant, in which case this Agreement shall supersede any such covenant if I reside in the State of California at the time I execute this Agreement or if, any time during the term of my Employment, I am a resident of California). Further still, to the extent I have entered into any other agreements as part of the sale or acquisition of a business or business assets that have restrictive covenants, such agreements and the restrictive covenants therein will survive and stand independent from and unaffected by this Agreement. As of the Effective Date, except as otherwise explicitly provided herein, this Agreement replaces and supersedes any and all prior understandings or agreements between the Company or any Related Company and me regarding my Employment, including without limitation, any employment agreement or offer letter between the Company or any Related Company and me or any of its affiliates in effect prior to the Effective Date.
d.Amendment and Waiver. This Agreement will not be modified or amended except by another instrument in writing executed by the Parties. Failure of either party at any time to require performance by the other of any provision of this Agreement will in no way affect the rights of the waiving party to enforce the same thereafter, nor will the waiver by either party of any breach of any provision of this Agreement be held to be a waiver of any succeeding breach of any provision or a waiver of the provision itself.
e.Notices. Any notice, request, demand, or other communication required or permitted hereunder, shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by email upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt, to me at the most recent address listed in the Company’s personnel records, and to the Company at the address below:
Callaway Golf Company
2180 Rutherford Road
Carlsbad, California 92008
Attn: General Counsel
f.Applicable Law. This Agreement will constitute a contract under the internal laws of the State of California and will be governed and construed in accordance with the laws of said state as to both interpretation and performance.
g.Severability. My obligations under this Agreement are each separate and severable obligations. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the Company and I consent to the adjudicator’s enforcement of the restrictions to such lesser extent as would make the restriction reasonable and enforceable and/or agree to the reformation of the restriction (for purposes of that jurisdiction only) where such is necessary to make it enforceable to protect the legitimate business interests of the Company. If, despite the foregoing, any provision in this Agreement is adjudicated to be void, illegal or unenforceable, then it will be severed, and all other provisions contained in this Agreement will remain in full force and effect as if the offending provision was never contained in this Agreement.
h.Survival. Unless otherwise expressly agreed by the Company and me in writing, my obligations under this Agreement will, in accordance with their terms, be unaffected by any change in position, title, duties, or other terms and conditions of my Employment. My post-Employment obligations will survive the termination of my Employment and/or this Agreement. The existence of a claim by me against the Company, whether predicated on this Agreement or otherwise, will not relieve me of my obligation to comply with the restrictions on my conduct provided for in this Agreement or make them unenforceable.
i.Counterparts / Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civ. Code §1633.1, et seq.) or other applicable law) or other transmission method, and any counterpart so delivered shall be deemed to have been duly signed and delivered and be valid and effective for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
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/s/ Oliver G. Brewer________________________
Oliver G. Brewer, III
Date: 4/16/26_________________________
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COMPANY
Callaway Golf Company, a Delaware corporation
By: /s/ Linda Segre_________________________
Linda Segre, Chair, Compensation Committee
Board of Directors
Date: May 7, 2026_________________________
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SCHEDULE A
Compensation and Benefits
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule A:
A-1.Compensation, Benefits and Expenses.
a.Position. President and Chief Executive Officer, reporting to the Board of Directors.
b.Base Salary. $1,155,000.00 per year. In accordance with the Company’s usual payroll practices, the Company will pay me an annual base salary at the rate described herein (prorated for any partial years of Employment), payable in substantially equal installments on regularly scheduled Company pay dates. My base salary will be reviewed on an annual basis by the Board or its designated representative. The Company reserves the right to increase my base salary pursuant to the Company’s employee compensation practices and policies in effect from time to time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my base salary rate (as the same may be increased during my employment) without my prior written consent.
c.Annual Incentive. I am eligible for a discretionary annual incentive payment based upon participation in the Company’s applicable incentive program as it may or may not be in effect from time-to-time. My annual target incentive percentage is 150% of the actual annual base salary paid to me during the applicable calendar year for which such annual incentive is earned (the “Target Incentive”). Any annual incentive payment earned pursuant to an applicable incentive plan will be paid in accordance with the Company’s then current payroll practices in the first quarter of the year following the end of the Company’s fiscal year to which the annual incentive relates, provided that, except as provided in Schedule B, the annual incentive will not be earned and payable unless I am actively employed in good standing, and have not given, or received, notice of termination of Employment as of the date the annual incentive is paid. The Company reserves the right to increase my Target Incentive pursuant to the Company’s employee compensation practices and policies in effect from time to time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my Target Incentive (as the same may be increased during my employment) without my prior written consent.
d.Long-Term Incentives. Subject to approval of the Board or its designated representative, the Company will provide me an opportunity to participate in the Company’s long-term incentive programs under which I may be eligible in accordance with the terms of such programs as in effect from time-to-time and as may be amended in the sole and absolute discretion of the Company (the “Long-Term Incentive Plans”). My participation in the Long-Term Incentive Plans will be governed by the terms of the Long-Term Incentive Plans, including the notice and grant agreement specific to each Long-Term Incentive Plan award I am awarded. My annual target opportunity under the Company’s Long-Term Incentive Plans (my “Target LTI Opportunity”) will be established annually by the Board or its designated representative. The Company reserves the right to increase my Target LTI Opportunity pursuant to the Company’s Long-Term Incentive Plans in effect from time to time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my Target LTI Opportunity (as the same may be increased during my employment) without my prior written consent.
e.Benefit Plans. The Company will offer me participation in the various employee benefit plans it sponsors such as health and welfare coverage, qualified retirement plans and other insured benefits applicable to my position and subject to my eligibility to participate under the terms of such plans.
f.Paid Time Off/Sick Time. I am eligible to accrue PTO up to the maximum accruals set by the Company in accordance with the terms and conditions of the Company’s PTO Program and as set forth in the most recent “Executive Benefits Summary” provided to me by the Company under separate cover, as may be amended from time-to-time in the Company’s sole and absolute discretion. Accrued PTO may be taken any time during the year subject to prior approval by the Company. I am eligible for paid sick leave days (“Sick Leave”) in accordance with applicable state or local law.
g.Other Perquisites. The Company may provide other perquisites to me from time-to-time as determined by the Company, including those described in the most recent Executive Benefits Summary.
h.Business Expenses. The Company shall reimburse me for the reasonable, customary and necessary expenses I incur in the performance of my duties. My reimbursement for such business expenses is contingent on my compliance with the Company’s expense reimbursement policies as may be in effect from time to time. In addition, I shall receive a gross payment of $25,000 annually to cover any business expenses not otherwise reimbursable under the Company’s policies.
SCHEDULE B
Termination Benefits
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule B:
B-1. Severance Benefits.
a.Severance Eligible Termination. If the Company terminates my Employment without Substantial Cause, or if I voluntarily terminate my Employment with the Company for Good Reason, then it will be deemed a “Severance Eligible Termination.” Subject to Sections B-4 and B-6 below, if the termination of my Employment with the Company constitutes a Severance Eligible Termination, in addition to the Accrued Obligations, I will be provided the following “Special Severance”:
i.A one-time, lump-sum payment based on the annual incentive payment I would have received in the then-current year, based on the Company’s actual performance as measured against the requirements of the annual incentive plan, pro-rated to my Termination Date (the “Pro-Rata Incentive Plan Payment”);
ii.The vesting of my unvested long-term incentive compensation awards (e.g., restricted stock units, performance shares, stock appreciation rights, stock options, and other long-term equity-based incentive awards) (“Long-Term Incentive Awards”) that would have vested had I continued to be employed pursuant to this Agreement for a period of twenty-four (24) months from the Termination Date; provided that any unvested Long-Term Incentive Awards that are subject to performance-based vesting will vest in accordance with this Section B-1(a)(ii) only if, and to the degree that, the performance goals are satisfied in accordance with the terms of the applicable Long-Term Incentive Plan and award agreement thereunder. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-1(a)(ii));
iii.A severance payment equal to the sum of (A) 2.0 times my most recent annual base salary, plus (B) 2.0 times my annual target incentive for the year of termination (calculated for this purpose by multiplying my annual target incentive percentage specified in Schedule A by my most recent annual base salary), payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of twenty-four (24) months from the Termination Date (the “Special Severance Installments” and such period, the “Special Severance Period”);
iv.for a period of twenty-four (24) months (or, if earlier, (A) the date on which the applicable continuation period under COBRA and/or Cal-COBRA expires or (B) the date I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment) (such period, the “Assistance Period”), if I and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date elect to have COBRA and/or Cal-COBRA coverage and are eligible for such coverage, the Company shall pay or reimburse me, at its election, on a monthly basis, for an amount equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for myself and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date; provided, however, that, if the Company determines, in its sole discretion, that the Company cannot provide healthcare continuation benefits under this sentence during the Assistance Period without potentially violating or causing the Company to incur financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company shall, in lieu thereof, pay me a monthly taxable cash payment during the Assistance Period (or any remaining portion thereof) equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents (the “Taxable Assistance Period Payments”).
In lieu of providing healthcare continuation benefits during the Assistance Period pursuant to the preceding sentence, the Company may elect, at the time of my Severance Eligible Termination, to instead provide me with a one-time, taxable lump-sum payment intended to assist with the post-termination healthcare costs for me and my dependents (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) twenty-four (24) months (the “Lump Sum Assistance Payment”). If I am paid a Lump Sum Assistance Payment, I will receive the Lump Sum Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Lump Sum Assistance Payment for any purpose in my discretion. I will notify the Company immediately if I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment during the Assistance Period;
v.Continuation of any financial, tax and estate planning services (on the then-existing terms and conditions) through the period during which I am receiving the Special Severance Installments; and
vi.Up to one year of outplacement services through a professional outplacement firm of the Company’s choosing.
The Lump Sum Assistance Payment (if applicable), as well as the vesting of any time-based Long-Term Incentive Awards described in Section B-1(a)(ii), will be made as soon as administratively practicable following the date my Release (as defined below) becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date; the Pro-Rata Incentive Plan Payment, as well as the vesting of any performance-based Long-Term Incentive Awards described above, will be made at such time and in such manner as such performance based payments are regularly made by the Company after the completion of the relevant performance period and the evaluation of whether, and the degree to which, the performance criteria have been met (but in all events, the Pro-Rata Incentive Plan Payment described in Section B-1(a)(i) will be paid no later than March 15 of the calendar year following the year in which my Termination Date occurs and the settlement of such performance-based Long-Term Incentive Awards will occur no later than March 15 of the calendar year following the year in which such awards are no longer subject to a “substantial risk of forfeiture” (as defined in Section 409A)); and the Special Severance Installments and Taxable Assistance Period Payments (if applicable) will commence as soon as administratively practicable following the date the Release becomes effective and irrevocable, but in no event later than the first regularly scheduled payroll date thereafter, and the Special Severance Installments and Taxable Assistance Period Payments (if applicable) shall be paid over time as described above following the effective date of the Release. None of the payments described in this Section B-1 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the effective date of the Release will accrue and be paid as soon as administratively practicable in accordance with the preceding sentence. Except as otherwise provided in this Agreement, I am not eligible for any other payments in connection with my termination of Employment as a result of a Severance Eligible Termination.
a.Severance Eligible Termination Within Twenty-Four Months Following a Change in Control. Subject to Sections B-4 and B-6 below, in the event my Employment is terminated as a result of a
Severance Eligible Termination within the twenty-four (24) month period following a Change in Control (as defined below), in addition to the Accrued Obligations, I will be provided the following “Change in Control Special Severance”:
i.The Special Severance amounts in Section B-1(a) above, payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of twenty-four (24) months from the Termination Date (such period, the “Change in Control Special Severance Period”); provided, further, that the Assistance Period (or the number of months to be covered by any Lump Sum Assistance Payment) will be equal to a period of twenty-four (24) months from the Termination Date. All other Special Severance elements will be payable in accordance with Section B-1(a) above; and
ii.In lieu of the Special Severance in Section B-1(a)(ii) above, (A) the vesting of all of my unvested time-based Long-Term Incentive Awards that vest solely based on my continued employment or service (including awards for which the performance objectives have been satisfied but which remain subject to time-based vesting following the end of the applicable performance period) shall be accelerated effective as of the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date, and (ii) the vesting of all of my unvested Long-Term Incentive Awards that are subject to performance-based vesting (e.g., performance stock units) will vest at the target performance level effective as of the date my Release becomes effective and irrevocable (unless the level of performance was determined at the time of the Change in Control at a higher achievement level in accordance with the applicable award agreement, in which case such higher achievement level shall apply), but in no event later than seventy (70) days after the Termination Date. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-1(b)(ii); and
iii.In addition to the Special Severance in Section B-1(a)(iv) above, I will receive a one-time, taxable lump-sum payment intended to assist with a portion of the post-termination healthcare costs for me and my dependents not covered under Section B-1(a)(iv) above (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) six (6) months (the “Change in Control Supplemental Lump Sum Assistance Payment”). If I am paid a Change in Control Supplemental Lump Sum Assistance Payment, I will receive the Change in Control Supplemental Lump Sum Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Change in Control Supplemental Lump Sum Assistance Payment for any purpose in my discretion. The Change in Control Supplemental Lump Sum Assistance Payment will be made as soon as administratively practicable following the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date.
b.Other Benefits. I agree that payment of Special Severance or Change in Control Special Severance pursuant to this Section B-1 shall be in lieu of, and not in addition to, any other payment that I might otherwise be entitled to, including, but not limited to, payments under any state or federal Worker Adjustment and Retraining Notification Act, any similar statute, or as provided for under common law.
B-2. Permanent Disability Benefits.
a.Subject to Sections B-4 and B-6 below, in the event my Employment is terminated as a result of my “Permanent Disability” (as defined below), in addition to the Accrued Obligations, I will be provided the following “Permanent Disability Benefit”:
i.A payment equal to 0.500 times my most recent annual base salary, payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of six (6) months from the Termination Date (the “Disability Installments”);
ii.A Pro-Rata Incentive Plan Payment;
iii.The vesting of my unvested Long-Term Incentive Awards that would have vested had I continued to be employed pursuant to this Agreement for period of twenty-four (24) months from the Termination Date; provided that any unvested Long-Term Incentive Awards that are subject to performance-based vesting will vest in accordance with this Section B-2(a)(iii) only if, and to the degree that, the performance goals are satisfied in accordance with the terms of the applicable Long-Term Incentive Plan and award agreement thereunder. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-2(a)(iii)); and
iv.for a period of twenty-four (24)months (or, if earlier, (A) the date on which the applicable continuation period under COBRA and/or Cal-COBRA expires or (B) the date I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment) (such period, the “Disability Assistance Period”), if I and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date elect to have COBRA and/or Cal-COBRA coverage and are eligible for such coverage, the Company shall pay or reimburse me, at its election, on a monthly basis, for an amount equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for myself and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date; provided, however, that, if the Company determines, in its sole discretion, that the Company cannot provide healthcare continuation benefits under this sentence during the Disability Assistance Period without potentially violating or causing the Company to incur financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company shall, in lieu thereof, pay me a monthly taxable cash payment during the Disability Assistance Period (or any remaining portion thereof) equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents (the “Taxable Disability Assistance Period Payments”). In lieu of providing healthcare continuation benefits during the Disability Assistance Period pursuant to the preceding sentence, the Company may elect, at the time of my termination of Employment as a result of my Permanent Disability, to instead provide me with a one-time, taxable lump-sum payment intended to assist with the post-termination healthcare costs for me and my dependents (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) twenty-four (24) (the “Lump Sum Disability Assistance Payment”). If I am paid a Lump Sum Disability Assistance Payment, I will receive the Lump Sum Disability Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Lump Sum Disability Assistance Payment for any purpose in my discretion. I will notify the Company immediately if I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment during the Disability Assistance Period.
The Lump Sum Disability Assistance Payment (if applicable), as well as the vesting of any time-based Long-Term Incentive Awards described in Section B-2(a)(iii), will be made as soon as administratively practicable following the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date; the Pro-Rata Incentive Plan Payment, as well as the vesting of any performance-based Long-Term Incentive Awards described above, will be made at such time and in such manner as such performance based payments are regularly made by the Company after the completion of the relevant performance period and the evaluation of whether, and the degree to which, the performance criteria have been met (but in all events, the Pro-Rata Incentive Plan Payment described in Section B-2(a)(ii) will be paid no later than March 15 of the calendar year following the year in which my Termination Date occurs and the settlement of such performance-based Long-Term Incentive Awards will occur no later than March 15 of the calendar year following the year in which such awards are no longer subject to a “substantial risk of forfeiture” (as defined in Section 409A)); and the Disability Installments and Taxable Disability Assistance Period Payments (if applicable) will commence as soon as administratively practicable following the date the Release becomes effective and irrevocable, but in no event later than the first regularly scheduled payroll date thereafter, and the Disability Installments and Taxable Disability Assistance Period Payments (if applicable) shall be paid over time as described above following the effective date of the Release. The Permanent Disability benefits provided pursuant to this Section B-2 will be coordinated with other applicable disability insurance as required by the applicable policies. None of the payments described in this Section B-2 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the effective date of the Release will accrue and be paid as soon as administratively practicable in accordance with the preceding sentence. Except as otherwise provided in this Agreement, I will not be entitled to any payments or benefits under Section B-1 as a result of such termination of my Employment by the Company following my Permanent Disability, which shall be considered a termination for Substantial Cause.
For purposes of this Agreement, “Permanent Disability” shall mean my failure to perform or being unable to perform all or substantially all of my duties under this Agreement for a continuous period of six (6) months or more on account of any physical or mental disability, as reasonably determined by the Company or as reflected in the opinion of a qualified physician selected by the Company, provided that, to the extent required under Section 409A, such disability or impairment also qualifies as a “disability” for purposes of Section 409A. The existence of my Permanent Disability shall be determined by the Company in good faith.
B-3. Death Benefits. In the event of my death, in addition to the Accrued Obligations, all my outstanding unvested time-based Long-Term Incentive Awards will immediately vest and be settled as soon as administratively practicable but in no event later than seventy (70) days after the date of my death. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-3). The foregoing benefit is referred to as the “Death Benefit.”
B-4. Requirement for a Release. The Company’s obligation to provide me the severance or any other benefits payable under Sections B-1 and B-2, other than my Accrued Obligations through the Termination Date, will be conditioned on my (or my representatives if I am unable to sign due to my Permanent Disability) signing a release agreement in the form attached to the Agreement as Schedule D within the time period set forth therein) that, among other things, (a) contains an effective release of any and all claims in favor of the Company and any of the Related Companies, and (b) secures my commitment to abide by all post-Employment obligations applicable to me under this Agreement (referred to hereafter as my “Release”).
If, for any reason, my Release does not become effective and irrevocable within sixty (60) days following my Termination Date, I will not be entitled to any payments or benefits pursuant to Sections B-1 and B-2 and will forfeit all rights thereto; however, the Accrued Obligations through the Termination Date will be paid. Additionally, none of the payments or benefits pursuant to Sections B-1 and B-2 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the Release effective date will accrue and be paid as provided in this Schedule B.
B-5. Other. Except for the Accrued Obligations and the amounts specifically provided pursuant to this Schedule B, I shall not be entitled to any further compensation, incentive, damages, restitution, relocation benefits, or other severance benefits upon my termination of Employment. The amounts payable to me pursuant to this Schedule B shall not be treated as damages, but as compensation to which I may be entitled by reason of my termination of Employment under the applicable circumstances. The Company shall not be entitled to set off against the amounts payable to me pursuant to this Schedule B any amounts earned by me in other employment after termination of my Employment with the Company, or any amounts which might have been earned by me in other employment had I sought such other employment. The provisions of this Schedule B shall not limit my rights under or pursuant to any other agreement or understanding with the Company regarding any pension, insurance or other employee benefit plan of the Company to which I am entitled pursuant to the terms of such plan.
B-6. Conditions on Receiving Post-Termination Benefits. My right to all payments or benefits under this Schedule B shall in all events be subject to Sections 6 (Code Section 409A) and 7 (Code Section 280G) of the Agreement. In addition, notwithstanding anything else to the contrary, it is expressly understood that any obligation of the Company to pay any post-termination benefits pursuant to this Schedule B shall be subject to my continued compliance with the terms and conditions of this Agreement, including Section 8 of the Agreement and Schedule C, if applicable. If I breach or threaten to breach this Agreement (including, without limitation, Section 8 of this Agreement or Schedule C, if applicable), the Company will be entitled to cease the payment of any severance or benefits under this Schedule B (other than the Accrued Obligations).
B-7. Definition of Change in Control. For purposes of this Agreement “Change in Control” is defined as a circumstance where:
a.any person, entity or group, within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) but excluding the Company and its subsidiaries and any employee benefit or stock ownership plan of the Company or its subsidiaries and also excluding an underwriter or underwriting syndicate that has acquired the Company’s securities solely in connection with a public offering thereof (such person, entity or group being referred to herein as a “Person”) becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either the then outstanding shares of the common stock of the Company or the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors; or
b.individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board, provided that any individual who becomes a director after the Effective Date whose election, or nomination for election by the Company’s shareholders, is approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered to be a member of the Incumbent Board unless that individual was nominated or elected by any Person having the power to exercise, through beneficial ownership, voting agreement and/or proxy, 20% or more of either the outstanding shares of the common stock of the Company or the combined voting power of the Company’s then outstanding voting securities entitled to vote generally in the election of directors, in which case that individual shall not be considered to be a member of the Incumbent Board unless such individual’s election or nomination for election by the Company’s shareholders is approved by a vote of at least two-thirds of the directors then comprising the Incumbent Board; or
c.consummation by the Company of the sale or other disposition of all or substantially all of the Company’s assets or a reorganization or merger or consolidation of the Company with any other Person, other than (A) a reorganization or merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto (or, in the case of a reorganization or merger or consolidation that is preceded or accomplished by an acquisition or series of related acquisitions by any Person, by tender or exchange offer or otherwise, of voting securities representing 50% or more of the combined voting power of all securities of the Company, immediately prior to such acquisition or the first acquisition in such series of acquisitions) continuing to represent, either by remaining outstanding or by being converted into voting securities of another entity, more than 50% of the combined voting power of the voting securities of the Company or such other entity outstanding immediately after such reorganization or merger or consolidation (or series of related transactions involving such a reorganization or merger or consolidation), or (B) a reorganization or merger or consolidation effected to implement a recapitalization or reincorporation of the Company (or similar transaction) that does not result in a material change in beneficial ownership of the voting securities of the Company or its successor.
Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to any amount hereunder that provides for the deferral of compensation that is subject to Section 409A, to the extent required to avoid the imposition of additional taxes under Section 409A, the transaction or event shall only constitute a Change in Control for purposes of the payment timing of such amount if such transaction also constitutes a “change in control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5).
SCHEDULE C – CALIFORNIA
Conflicting Activities
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule C:
C-1. Agreement Not to Engage in Conflicting Activities. I acknowledge that in reliance upon my covenants in this Agreement, the Company will provide me with one or more of the following: Confidential Information related to my position and duties; trade secrets; authorization to communicate and develop goodwill with customers, suppliers, employees, and other key business relationships of the Company and its Related Companies; and/or, specialized training related to the business of the Company and its Related Companies. I agree that the foregoing would give me an unfair competitive advantage if my activities were not restricted as provided for in this Agreement during my Employment. In order to avoid activities of this nature and the irreparable harm they cause, I agree that, during my Employment, without the consent of the Company, (i) I will not work for or become associated with any outside business activities for remuneration (whether cash or otherwise), whether or not for a business that would constitute a Competitor for purposes of this Schedule C, and (ii) I will not invest in, provide material assistance to any business, or otherwise pursue any business opportunity, in each case under this clause (ii) that would create a conflict of interest. Also, during my Employment, I will not divert business opportunities away from the Company or the Related Companies for personal gain or interfere with the business relationship between the Company and its employees, customers, suppliers, distributors, or vendors, by soliciting or otherwise encouraging or inducing them to cease or reduce doing business with the Company or the Related Companies except where such conduct is undertaken in the course of my duties for the Company and for the benefit of the Company or the Related Companies.
C-2. Definitions.
a.“Competitor” refers to any business (irrespective of how it is organized) that is engaged in the same line of business as the Company or one so similar in nature that it would displace the business opportunities for the Company’s products and/or services in any markets where the Company does business or has demonstrable plans to do business and with respect to which I was provided access to Confidential Information in the course of Employment. The forgoing will include the products and/or services of a Related Company that I have material involvement with or with respect to which I am provided Confidential Information in the course of my Employment.
b.“Related Companies” means, collectively, the Company’s subsidiaries, affiliates or any other company in which Company has an investment and/or other ownership interest.
c.It is understood that to “solicit” or “soliciting” and their derivations mean to interact with another person or entity with the purpose or foreseeable result being to cause, motivate or induce the person or entity to engage in some responsive action, irrespective of who first initiated contact. It will not include general advertising (such as “help wanted” ads) that are not targeted at the Company’s employees or customers.
C-3. Exception. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prohibits me from owning a non-controlling interest consisting or two percent (2%) or less of any class of securities in any publicly traded company or passive investments through an independently controlled fund such as a mutual fund, provided that I am not a controlling person of, or a member of a group that controls, such business, and further provided that I do not otherwise participate in any conduct prohibited under this Agreement.
C-4. Irreparable Harm. A violation of this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C) by me would cause not only actual and compensable damage, but also
irreparable harm and continuing injury to the Company, for which there would not be an adequate remedy at law. Accordingly, if I breach or threaten to breach this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C), the Company will be entitled to temporary and permanent injunctive relief in addition to, and not in lieu of, any and all other legal remedies to which it would otherwise be entitled. In addition to, and not in lieu of injunctive relief to prevent further violations, the Company will have the right to, in addition to any other legal remedies and damages available, to cease the payment of any severance or benefits under Schedule B hereof. The Company will be deemed the prevailing party for all purposes if any relief is granted to it, irrespective of whether some relief requested by the Company is also denied.
C-5. Survival. My obligations in this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C) shall survive the termination of the Agreement and my Employment under it. My obligations under this Agreement are independent and severable obligations; and, the existence of any claim or cause of action against Company by me, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Company of my obligations under this Agreement. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the adjudicator will enforce the restriction to such lesser extent as would make it reasonable and enforceable and/or reform the restriction to the extent necessary to make it enforceable to protect Company’s legitimate business interests. A presumption provided for in this Agreement may only be overcome by presentation of clear and convincing evidence from the party opposing application of the presumption and shall not apply to the extent that its application would make the restriction, clause or other provision at issue unenforceable. If, despite the foregoing, any provision of this Agreement is adjudicated to be void, illegal or unenforceable, all other provisions will remain in full force and effect, as if the void, illegal, or unenforceable provision is not part of the Agreement except where this Agreement expressly provides otherwise.
SCHEDULE D
Form of Release
This Release of Claims (“Release”) is made pursuant to the Employment Agreement (the “Agreement”) to which this Release is attached as Schedule D and will be effective as of the Release Effective Date (as defined below), by and between the undersigned, _____________________ [NAME], and Callaway Golf Company, a Delaware corporation, (the “Company”), collectively the “Parties.” This Release is entered into in light of the fact that my employment with the Company will terminate effective [_____] and I am eligible to receive the [Special Severance][Change in Control Special Severance][Permanent Disability Benefit] described in Schedule B to the Agreement, subject to the occurrence of the Release Effective Date within the time period specified in Section 3 below and my continued compliance with the terms of this Release and the Agreement. Capitalized terms used herein without definition shall have the meanings given to such terms in the Agreement.
1. Consideration. In consideration for the payment of the [Special Severance][Change in Control Special Severance][Permanent Disability Benefit] described in Schedule B to the Agreement, Employee agrees to the terms and provisions set forth in this Release. In addition, to the extent not already paid, and subject to the terms and conditions of the Agreement, the Company shall pay or provide to me the Accrued Obligations described in the Agreement, subject to and in accordance with the terms thereof.
2. Release. I hereby agree that, other than with respect to the Retained Claims (as defined below), the consideration described in Section 1 represents settlement in full of all outstanding obligations owed to me by the Company, any of its direct or indirect parents, subsidiaries or affiliates, and any of their respective current and former officers, directors, equity holders, managers, employees, agents, investors, attorneys, shareholders, administrators, affiliates, benefit plans, plan administrators, insurers, trustees, divisions, and subsidiaries and predecessor and successor corporations and assigns (collectively, the “Releasees”) related to my employment or service with the Company or any of its direct or indirect parents, subsidiaries or affiliates or termination therefrom. I, on my own behalf and on behalf of any of my affiliates, family members, executors, agents, heirs and assigns, other than with respect to the Retained Claims, hereby and forever release the Releasees from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that I may possess based on any omissions, acts, facts, or damages that have occurred up until and including the date I sign this Release against any of the Releasees arising directly or indirectly out of, relating to or in any other way involving in any manner whatsoever my employment or service with the Company or any of its direct or indirect parents, subsidiaries and affiliates or termination therefrom, including, without limitation:
a.any and all claims relating to or arising from my employment or service relationship with the Company or any of its direct or indirect parents, subsidiaries and affiliates and the termination of that relationship;
b. any and all claims relating to, or arising from, my right to purchase, or actual purchase of any shares of stock or other equity interests of the Company or any of its direct or indirect parents, subsidiaries and affiliates, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state law, and securities fraud under any state or federal law;
c. any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;
d. any and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Equal Pay Act; the Fair Labor Standards Act; the Fair Credit Reporting Act; the Age Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Employee Retirement Income Security Act of 1974; the Worker Adjustment and Retraining Notification Act; the Family and Medical Leave Act; the Sarbanes-Oxley Act of 2002; and the California Fair Employment and Housing Act, California Government Code Section 12940, et seq.;
e. any and all claims for violation of the federal or any state constitution;
f. any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
g. any and all claims arising out of the wage and hour and wage payments laws and regulations of the state or states in which I have provided service to the Company or any of its direct or indirect parents, subsidiaries and affiliates; and
h. any and all claims for attorneys’ fees and costs.
This Release does not release claims that cannot be released as a matter of law, including, but not limited to, my right to report possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002, or any other whistleblower protection provisions of state or federal law or regulation and any right to receive an award for information provided thereunder, my right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company or any Releasee for discrimination (with the understanding that my release of claims herein bars me from recovering such monetary relief from the Company or any Releasee for any alleged discriminatory treatment), claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law, claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of COBRA, claims for indemnity under the bylaws of the Company, as provided for by state law or under any applicable indemnification agreement or insurance policy with respect to my liability as an employee, director or officer of the Company or any of its direct or indirect parents, subsidiaries and affiliates, and claims to any benefit entitlements vested as the Termination Date pursuant to written terms of any employee benefit plan of the Company or its affiliates. This Release further does not release claims for the Company’s breach of its executory obligations under this Release or Schedule B of the Agreement. This Release does not prevent me from engaging in any protected conduct described in Section 8(f) of the Agreement. The claims described in this paragraph are referred to as the “Retained Claims.”
I ACKNOWLEDGE THAT I AM FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
I, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS I MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
3. Acknowledgment of Waiver of Claims under ADEA. I understand and acknowledge that I am waiving and releasing any rights I may have under the Age Discrimination in Employment Act of 1967 (“ADEA”), and that this Release is knowing and voluntary. I understand and agree that this Release does not apply to any rights or claims that may arise under the ADEA after the date I sign this Release. I understand and acknowledge that the consideration given for this Release is in addition to anything of value to which I was already entitled. I further understand and acknowledge that I have been advised by in writing that: (a) I have the right to and should consult with an attorney prior to executing this Release; (b) I have [twenty-one (21)] days within which to consider this Release, and the Parties agree that such time period to review this Release shall not be extended upon any material or immaterial changes to this Release; (c) I have seven (7) calendar days following my execution of this Release to revoke this Release pursuant to written notice to the [Title] of the Company; (d) this Release shall not be effective until after the revocation period has expired; and (e) nothing in this Release prevents or precludes me from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties, or costs for doing so, unless specifically authorized by federal law. In the event I sign this Release and return it to the Company in less than the [twenty-one (21)] day period identified above, I hereby acknowledge that I have freely and voluntarily chosen to waive the time period allotted for considering this Release. This Release will become effective at 12:01 a.m. on the eighth day after I sign this Release (the “Release Effective Date”). I further understand that I will not be given the post-termination benefits described in Section 1 above unless the Release Effective Date occurs on or before the date that is sixty (60) days following my Termination Date.
4.Terminations; Resignations. I hereby confirm my termination and resignation from all offices, directorships, and other employment positions, if any, then held with the Company and any Related Company, and I shall take all actions reasonably requested by the Company to effectuate the foregoing
5. Representations. I represent and warrant that:
a. I have surrendered to the Company all Company property as required under Section 8(d) of the Agreement;
b. I am not owed wages, commissions, bonuses or other compensation, other than the Accrued Obligations and as set forth in this Release; and
c. During the course of my Employment, I did not sustain any injuries for which I might be entitled to compensation pursuant to worker’s compensation law or I have disclosed any injuries of which I am currently, reasonably aware for which I might be entitled to compensation pursuant to worker’s compensation law.
6. Conditions on Receiving Post-Termination Benefits. I hereby expressly reaffirm my continuing obligations under the Agreement, including, without limitation, Section 8 of the Agreement and Schedule C to the Agreement, if applicable, I agree that any obligation of the Company to pay any post-termination benefits to me shall be subject to my continued compliance with the terms and conditions of the Agreement, including Section 8 of the Agreement and Schedule C to the Agreement, if applicable. If I breach or threaten to breach the Agreement (including, without limitation, Section 8 of this Agreement or Schedule C to the Agreement, if applicable), the Company will be entitled to cease the payment of any severance or benefits to me under the Agreement (other than the Accrued Obligations).
7.No Assignment. I hereby represent and warrant to the Releasees that there has been no assignment or other transfer of any interest in any claim that I may have against the Releasees.
8.Dispute Resolution. To ensure the timely and economical resolution of disputes that arise in connection with this Agreement, the Parties agree that, except as excluded herein, any and all controversies,
claims and disputes arising out of or relating to this Release or the Agreement will be governed by Section 9 of the Agreement.
9.Miscellaneous.
a.Beneficiaries and Assignment. This Release will be binding upon and inure to the benefit of the Parties, and their heirs and successors and permitted assigns. This Release will automatically inure to the benefit of and be enforceable by the Company and any of the Related Companies, and any successors and assigns. I understand I will have no right to assign my rights, benefits, duties, obligations or other interests in this Release as they are personal to me, other than by will or the laws of descent and distribution. Any attempted assignment by me of my rights, benefits, duties, obligations or other interests in this Release in contravention of this Release will be null and void.
b.Entire Understanding. I am not relying upon any representations outside of the Agreement or this Release in deciding to enter into this Release. This Release and the Agreement (inclusive of Schedules thereto) represent the entire understanding between the Company and me with respect to all matters herein.
c.Amendment and Waiver. This Release will not be modified or amended except by another instrument in writing executed by the Parties. Failure of either party at any time to require performance by the other of any provision of this Release will in no way affect the rights of the waiving party to enforce the same thereafter, nor will the waiver by either party of any breach of any provision of this Release be held to be a waiver of any succeeding breach of any provision or a waiver of the provision itself.
d.Applicable Law. This Release will constitute a contract under the internal laws of the State of [_____] and will be governed and construed in accordance with the laws of said state as to both interpretation and performance.
e.Severability. My obligations under this Agreement are each separate and severable obligations. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the Company and I consent to the adjudicator’s enforcement of the restrictions to such lesser extent as would make the restriction reasonable and enforceable and/or agree to the reformation of the restriction (for purposes of that jurisdiction only) where such is necessary to make it enforceable to protect the legitimate business interests of the Company. If, despite the foregoing, any provision in this Agreement is adjudicated to be void, illegal or unenforceable, then it will be severed, and all other provisions contained in this Agreement will remain in full force and effect as if the offending provision was never contained in this Agreement.
f.Counterparts / Electronic Signature. This Release may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civ. Code §1633.1, et seq.) or other applicable law) or other transmission method, and any counterpart so delivered shall be deemed to have been duly signed and delivered and be valid and effective for all purposes.
10.Voluntary Execution of Agreement. I understand and agree that I executed this Release voluntarily, without any duress or undue influence on the part or behalf of the Company or any third party, with the full intent of releasing all of my claims against the Company and any of the other Releasees. I acknowledge that: (a) I have read this Release; (b) I have been represented in the preparation, negotiation, and execution of this
Release by legal counsel of my own choice or have elected not to retain legal counsel; (c) I understand the terms and consequences of this Release and of the releases it contains; and (d) I am fully aware of the legal and binding effect of this Release.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
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________________________________
Employee’s name
Date: ___________________________
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COMPANY
Callaway Golf Company, a Delaware corporation
By: _____________________________________
Signer’s Name & Title
Date: ______________________________
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EX-10.2
3
a2102lynchbrianp-employmen.htm
EX-10.2
Document
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is entered into as of May 7, 2026 (the “Effective Date”) by and between Callaway Golf Company, a Delaware corporation, (the “Company”) and me, Brian P. Lynch, each a “Party” and collectively the “Parties.” References to this “Agreement” shall include all of the Schedules attached hereto.
1.Term. My employment hereunder (“Employment”) shall be for a term (the “Term”) commencing on the Effective Date and continuing indefinitely until terminated in accordance with Section 4 of this Agreement. The date my Employment with the Company ends is referred to as my “Termination Date” irrespective of which Party terminated or why termination occurred. Notwithstanding anything to the contrary in the foregoing, my Employment hereunder is terminable at will by the Company or by me at any time (for any reason or for no reason), subject to the provisions of Section 4 hereof.
2.Position and Duties.
a.During the Term, I will serve in the position designated on Schedule A or in such other position or positions as the Board of Directors of the Company (the “Board”) or its designated representative specifies from time-to-time and shall have the duties, responsibilities and obligations customarily assigned to individuals serving in such position or positions as defined by the Board or its designated representative.
I agree to devote all of my working time and efforts to the performance of my duties for the Company and to faithfully and diligently serve the Company in accordance with this Agreement and the guidelines, policies and procedures of the Company, including its Employee Handbook and Code of Conduct, as such shall be adopted, modified or otherwise established by the Company from time-to-time. This does not prohibit me from managing personal investments or involvement in volunteer charitable or community activities provided that they do not violate the terms of this Agreement or interfere or conflict with the satisfactory performance of my Employment duties in the judgment of the Board or its designated representative. By signing this Agreement, I represent to the Company that (i) I am not currently engaged in any outside business activities for remuneration (whether cash or otherwise), and (ii) providing material assistance to any business, or otherwise pursuing any business opportunity, in each case under this clause (ii) that would create a conflict of interest.
b.I can and will perform all of my Employment duties without the use or disclosure of any trade secrets or otherwise protected information of a third party that I am not authorized by that third party to use for the Company’s benefit. I am subject to no legal obligations, contracts, or other obligations that would prevent me from performing the duties of my position with the Company, nor am I in violation of any such legal obligations.
3.Compensation, Benefits and Expenses. I agree to the compensation and benefits described in Schedule A as full and adequate compensation for my services. I understand that my compensation and benefits are provided subject to the Company policies and procedures generally applicable to all Company employees with adjustments as determined by the Board or its designated representative.
4.Termination and Separation Payment Rights. This Agreement and my Employment under it may be terminated as set forth in this Section 4. Upon any termination of my Employment, I shall be entitled to receive my “Accrued Obligations.” For purposes of this Agreement, “Accrued Obligations” as used throughout this Agreement is defined as (A) earned but unpaid base salary, (B) accrued but unused payments or benefits to which I am entitled under Company benefit plans, including the Company’s retirement, insurance and other benefit and compensation plans or programs then in effect, in accordance with the terms of such plans and programs, and (C) accrued but unused paid time off (“PTO”), if applicable. The Accrued
Obligations described in the preceding sentence shall be paid within thirty (30) days after the Termination Date (or such earlier date as may be required by applicable law).
a.Death or Permanent Disability.
i. My Employment will terminate upon my death. If terminated due to death, then my estate will be paid all of my Accrued Obligations through the Termination Date and I will be eligible to receive the “Death Benefit” described in Schedule B, subject to the requirements set forth therein.
ii. Either the Company or I may terminate my employment following my “Permanent Disability” (as defined in Schedule B). If my Employment is terminated as a result of my Permanent Disability, then I will be paid all of my Accrued Obligations through the Termination Date. In addition, in the event of my termination of Employment as a result of my Permanent Disability, I will be eligible to receive the “Permanent Disability Benefit” described in Schedule B, subject to the requirements set forth therein.
b.Substantial Cause. The Company may terminate my Employment for Substantial Cause. If the Company terminates my Employment for Substantial Cause, then I will be paid my Accrued Obligations through the Termination Date and shall not be entitled to any additional severance or other compensation, including any unvested Long-Term Incentive Awards (unless otherwise provided in the applicable Long-Term Incentive Award agreement). The occurrence of any of the events described in parts (i) – (v) below, as reasonably determined by the Board or its designated representative, shall be “Substantial Cause”:
i.my material breach of any provisions of this Agreement or any other material, written contract with the Company or any Related Company (as defined in Schedule C) or under any code of conduct of the Company or any Related Company);
ii.willful and continued failure by me to substantially perform my duties under this Agreement as determined by the Company’s Chief Executive Officer or by the Board, including failure to cooperate with any internal investigation authorized by the Board or its designated representative or an investigation by regulatory or law enforcement authorities;
iii.intentional misconduct by me (including, but not limited to, misappropriation, fraud, including misconduct related to accounting and financial statements, embezzlement or use or possession of illegal drugs during work) and/or any other action that is damaging or detrimental in a significant manner to the Company or any of the Related Companies;
iv.my conviction (or plea of no contest) for any felony (including, but not limited to, any felony involving fraud, moral turpitude, embezzlement or theft in connection with my duties or in the course of my Employment with the Company), or any comparable offense in any applicable foreign jurisdiction; or
v. my use of alcohol or illicit drugs in a manner that has or would reasonably be expected to have a detrimental effect on my performance, my duties to the Company, or the reputation of the Company or any Related Company.
c.Good Reason. I may terminate my Employment under this Agreement for “Good Reason.” If I terminate my Employment for Good Reason, then I will be paid my Accrued Obligations through the Termination Date, and I will be eligible to receive the benefits provided for in Schedule B for a “Severance Eligible Termination,” subject to the requirements set forth therein.
For purposes of this Agreement, “Good Reason” means the occurrence of any of the following without my prior consent:
i.at any time during the Term (including at any time following the date of a Change in Control), a material breach of this Agreement by the Company; or
ii.at any time during the Term (including at any time following the date of a Change in Control), any material diminishment in the title, position, duties, responsibilities or status that I had with the Company, as a publicly traded entity, immediately prior to such diminishment; provided, however, that prior to a Change in Control, a change in your title or reporting position alone shall not constitute Good Reason; or
iii.at any time during the Term (including at any time following the date of a Change in Control), any requirement that I relocate or any assignment to me of duties that would make it unreasonably difficult for me to maintain the principal residence I had immediately prior to such requirement or assignment, and the parties agree that an increase in my one-way commuting distance by more than thirty-five (35) miles prior to such relocation or assignment as a result of any such relocation or assignment shall be automatically considered unreasonably difficult for purposes of this clause (iii); or
iv.at any time during the Term, a material reduction in my Base Salary or Target Incentive (as defined in Schedule B), or a material reduction in my year-over-year Target LTI Opportunity; or
v.during the twenty-four (24) month period following the date of a Change in Control, any reduction, limitation or failure to pay or provide any of the compensation, reimbursable expenses, Long-Term Incentive Awards (as defined in Schedule B), incentive programs, or other benefits or perquisites provided to me under the terms of this Agreement or any other agreement or understanding between the Company and me, or pursuant to the Company's written policies and past practices.
In order for “Good Reason” for my resignation to exist, the foregoing events must remain uncured for more than thirty (30) days despite my written notice to the Company advising it of such occurrence within ninety (90) days of my becoming aware of the occurrence. I will officially resign no later than ninety (90) days following the earlier of the end of the thirty (30) day cure period or the date the Company provides me with written notice of its intent not to cure the event giving rise to Good Reason. If I do not give the Company written notice of the occurrence of an event listed in this Section within ninety (90) days of my becoming aware of it, or such event is cured by the Company within thirty (30) days after written notification from me regarding such occurrence, I will not have “Good Reason” to terminate my Employment as a result of such occurrence.
d.Resignation without Good Reason. If I terminate my Employment without Good Reason, then I will be paid my Accrued Obligations through the Termination Date and shall not be entitled to any additional severance or other compensation, including any unvested Long-Term Incentive Awards.
e.Termination without Substantial Cause. The Company may terminate my Employment at its discretion at any time without Substantial Cause. If the Company terminates my Employment without Substantial Cause, then I will be paid my Accrued Obligations through the Termination Date, and I will be eligible to receive the benefits provided for in Schedule B for a “Severance Eligible Termination,” subject to the requirements set forth therein.
f.Deemed Resignations. Upon termination of my Employment for any reason, unless otherwise specified in a written agreement between the Company and me, I shall be deemed to have
resigned from all offices, directorships, and other employment positions, if any, then held with the Company and any Related Company, and I shall take all actions reasonably requested by the Company to effectuate the foregoing.
5.Clawbacks and Forfeitures.
a.Notwithstanding anything in this Agreement or any other agreement between me and the Company or any Related Company, I agree that I will be subject to, and any compensation paid to me under this Agreement or otherwise will be subject to, reduction, cancellation, forfeiture and/or recoupment under any clawback policy adopted by the Company from time to time that is, by its terms, applicable to me, including the Policy for Recovery of Erroneously Awarded Compensation adopted by the Company effective October 2, 2023 (the “Clawback Policy”), and any other policy adopted by the Company pursuant to the requirements under Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Rule 10D of the Securities Exchange Act of 1934, as amended, and any rules adopted by the national securities exchange on which the Company’s securities are listed, as such policy(ies) may be amended from time to time. Upon the request of the Company, I also agree without further consideration to execute an amendment evidencing the incorporation of the policies into this Agreement and/or my acknowledgment of the application of such policies to my compensation.
b.If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of my intentional misconduct or gross negligence, with respect to any financial reporting requirement under the United States securities laws, then, if requested to do so by the Board of Directors or the Compensation Committee of the Company, in addition to any rights the Company may have under Section 5(a) above, I will forfeit and reimburse the Company for all of the following: (i) any incentive or incentive compensation paid to me based upon such erroneously stated financial information, (ii) any incentive, incentive compensation or equity compensation I received during the twelve (12) month period following the earlier of the first public issuance or filing with the Securities and Exchange Commission of the financial document embodying the financial reporting requirement, (iii) any profits realized by me personally from the sale of Company securities during that same twelve (12) month period, (iv) if my Employment is terminated or has been terminated, my right to receive Special Severance or Change in Control Special Severance, if applicable, and (v) if I am terminated or have been terminated, any unvested Long-Term Incentive Awards.
c.I understand that the Company’s exercise of the recoupment and forfeiture provisions in this Section 5 will not constitute a breach of the terms of this Agreement by the Company and will not otherwise give me the right to terminate my Employment for Good Reason.
6.Code Section 409A Compliance.
a. I understand and agree that this Agreement has been drafted with the intention to comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and its applicable regulations (“Section 409A”). The Company is hereby advising me to obtain independent advice regarding the tax consequences of any compensation payable under this Agreement and I represent I have done so or have determined not to do so in my discretion despite the Company’s advisement. I acknowledge and agree that the Company will not be liable for and will bear no responsibility for any penalties that may be assessed against me for violation of Section 409A.
b. Notwithstanding any other provision of this Agreement, no severance pay or other benefits payable under this Agreement, that when considered together with any other severance payments or separation benefits, are considered deferred compensation under Section 409A or are
otherwise intended to be exempt from Section 409A pursuant to Section 1.409A-1(b)(9) of the Treasury Regulations issued under Section 409A and are payable upon my termination of employment, will be paid or otherwise provided until I have had a “separation from service” within the meaning of Section 409A. Each payment and benefit payable under this Agreement is intended to constitute a separate payment, and the right to a series of installment payments will be treated as a right to a series of separate payments (including, for the avoidance of doubt, the base salary and annual incentive components of the severance or termination benefits payable in installments pursuant to Schedule B, and each such component shall be treated as a separate payment). To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A.
c. If at the time of my termination of Employment with the Company I am a “specified employee” as defined in Section 409A, then, to the extent required under Section 409A, the Company will not commence payment of any compensation or benefits payable upon my “separation of service” until the date that is six (6) months and one (1) day following my Termination Date (or the earliest date as is permitted under Section 409A). In no event will any payment or benefit under this Agreement that is subject to Section 409A be subject to offset by any other amount unless otherwise permitted by Section 409A.
d. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A.
d. If and to the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Section 409A, (i) all such expenses or other reimbursements hereunder will be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred, (ii) any right to reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit, (iii) the amount of expenses eligible for reimbursement, or the in-kind benefits provided, during any taxable year will not affect the expenses eligible for reimbursement, or the in-kind benefits to be provided, in any other taxable year, and (iv) any reimbursement will be for expenses incurred during the period of time specified in this Agreement and if no time period is specified, will be for expenses incurred during my lifetime.
7.Code Section 280G.
a. Best Pay Provision. In the event that any payment or benefit received or to be received by me pursuant to the terms of any plan, arrangement or agreement (including any payment or benefit received in connection with a change in ownership or control or the termination of my Employment) (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part) to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, then the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (after subtracting the amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (after subtracting the net amount of federal, state and local income taxes on such Total Payments and
the amount of Excise Tax to which I would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). Except to the extent that an alternative reduction order would result in a greater economic benefit to me on an after-tax basis, the parties intend that the Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to me that are exempt from Section 409A of the Code, (B) reduction of any other cash payments or benefits otherwise payable to me that are exempt from Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A of the Code, (C) reduction of any other payments or benefits otherwise payable to me on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting and payment with respect to any equity award that is exempt from Section 409A of the Code, and (D) reduction of any payments attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A of the Code; provided, in case of clauses (A), (B) and (C), that reduction of any payments or benefits attributable to the acceleration of vesting of Company equity awards shall be first applied to equity awards with later vesting dates; provided, further, that, notwithstanding the foregoing, any such reduction shall be undertaken in a manner that complies with and does not result in the imposition of additional taxes on me under Section 409A of the Code. The foregoing reductions shall be made in a manner that results in the maximum economic benefit to me on an after-tax basis and, to the extent economically equivalent payments or benefits are subject to reduction, in a pro rata manner.
b. Determinations. All determinations regarding the application of this Section 7 shall be made by an independent accounting firm or consulting group with nationally recognized standing and substantial expertise and experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax retained by the Company prior to the date of the applicable change in ownership or control (the “280G Firm”). For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, and, in calculating the Excise Tax, (i) no portion of the Total Payments shall be taken into account which (A) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (B) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, (ii) no portion of the Total Payments the receipt or enjoyment of which I shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the 280G Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. All determinations related to the calculations to be performed pursuant to this Section 7 shall be done by the 280G Firm. The 280G Firm will be directed to submit its determination and detailed supporting calculations to both the Company and me within fifteen (15) days after notification from either the Company or me that I may receive payments which may be “parachute payments.” The Company and I will each provide the 280G Firm access to and copies of any books, records, and documents as may be reasonably requested by the 280G Firm and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Agreement. The fees and expenses of the 280G Firm for its services in connection with the determinations and calculations contemplated by this Agreement will be borne solely by the Company.
8.Restrictive Covenants.
a.Confidential Information.
i.The Company will entrust me with Confidential Information related to my fiduciary position of trust and confidence with the Company based on the commitments I am making in this Agreement and would not do so without the promises I am making in this Agreement. “Confidential Information” means information, or a compilation of information, in any form (tangible or intangible), related to the Company’s or any of the Related Companies’ business and of value to it that I first acquire or gain access to as a consequence of my Employment with the Company if the Company has not made it public or authorized public disclosure of it and it is not readily available through lawful and proper means to the public or others in the industry who have no obligation to keep it confidential. Confidential Information includes, but is not limited to: the Company’s business plans, financial information and analysis, customer and prospective customer lists, employee lists, marketing plans and strategies, research and development data, buying practices, vendor lists, internal business methods, techniques, technical data, know-how, innovations, computer programs, un-patented inventions, trade secrets, and information about the business affairs of third parties (including, but not limited to, customers, licensors and suppliers) that such third parties provide to the Company in confidence. Due to its special value and utility as a compilation, a confidential compilation (like a customer list) will remain protected as Confidential Information even if some items of information within the list are in the public domain. Private disclosure of otherwise Confidential Information to parties the Company is doing business with for business purposes will not cause the information to lose its protected status under this Agreement.
ii.During my Employment and for so long thereafter as the information qualifies as “Confidential Information” under this Agreement, I will not engage in any use or disclosure of Confidential Information that is not authorized by the Company and undertaken for the benefit of the Company, except as may be permitted under Section 8(f) below. These obligations do not prohibit my use of generally available knowledge, skill and education that is not specific to the Company or its business relationships but is instead knowledge generic to the industry or my profession. I will comply with all Company policies and directives concerning my use, storage, and transfer of Confidential Information. Unless prohibited by law from doing so, I will notify the Company as quickly as possible after being served with a subpoena, order, or other legal mandate requiring the production of Confidential Information so that the Company can take reasonable steps to protect its interests.
b.Intellectual Property.
i.I understand that I am being employed and paid to use all of my abilities, including my creative and inventive skills, for the benefit of the Company. Accordingly I agree that any inventions, improvements, discoveries, ideas, concepts, trademarks, service marks, trade names, copyright eligible works of authorship and mask works (hereinafter referred to collectively as “Intellectual Property”) that I develop, discover, conceive or create while employed with the Company or providing services to a Related Company, alone or with others, during regular working hours or outside of them, that either: (A) relates to the business of the Company or the Related Company or their actual or demonstrably anticipated research and development, (B) is developed or discovered with the assistance of Confidential Information, tools, equipment, personnel or other resources of the Company or a Related Company, or (C) is suggested by, related to, or result from any work performed by me for the Company or a Related Company; will be deemed “Work Product.” I hereby fully and finally assign to the Company all right, title and interest in and to all of my Work Product. My Work Product will be the property of the Company from the date of conception, irrespective of when, how, or if it is ever reduced to tangible form or practice. My assignment of Work Product shall include assignment to the Related Company where the interests of a Related Company are involved as determined by the Company. Notwithstanding the forgoing, nothing in this Agreement creates or requires assignment of an invention that cannot be assigned in an employment agreement under controlling law where controlling state law has such a limitation.
ii.All original works of authorship made by me, solely or jointly with others, while employed with the Company that relate to the Company’s line of business will be considered something done within the scope of my Employment and thus “work made for hire” under the Copyright Act of 1976 (17 U.S.C. § 101) and all comparable laws throughout the world. All ownership and copyrights in this “work for hire” will belong exclusively to the Company or its designee, and to the extent any rights therein are not automatically conveyed to the Company they will be deemed assigned to the Company. In this respect, the covered original works of authorship are also Work Product. Original works of authorship (“Work Products”) covered by the foregoing are understood to include, without limitation, all writings, source code, computer programs, algorithms, photos, images, drawings, branding concepts, and other work product of any nature whatsoever consisting of copyrightable subject matter. I waive all claims I may now or hereafter have to rights of paternity, integrity, disclosure and withdrawal, artists’ rights, and any other rights that may be known as “moral rights” with respect to the above-referenced work made for hire, Work Product, and all derivative works thereof.
iii. I will, during and after my Employment, execute all documents, and will assist the Company in every reasonable and proper way, to obtain and enforce patents, trademark registrations, service mark registrations and copyrights for the Intellectual Property in any and all countries. The Company will pay the expenses for obtaining and enforcing these patents, trademark registrations, service mark registrations, and copyrights. If I retain ownership of any item of Intellectual Property or copyright eligible work that is incorporated into a Company product or service (an item of “Incorporated IP”), I grant to the Company, a non-exclusive, fully paid (royalty-free) and irrevocable worldwide license to incorporate into its products and services, reproduce, make derivative works of, sell, and otherwise use the Incorporated IP.
iv. I acknowledge notice that if I reside and work for the Company in California then my assignment of inventions that qualify as Work Product under Sections 8(b)(i) – (iii) above shall not include inventions which cannot be assigned under California Labor Code §2870; and I acknowledge notice that California Labor Code §2870 provides that: “(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer.”
c.Non-Disparagement. I will not during my Employment with the Company, any applicable Special Severance Period or Change in Control Special Severance Period, and for the twelve (12) months following the later of (i) the date of my termination of Employment or (ii) the last day of any Special Severance Period or Change in Control Severance Period (regardless of whether I receive any severance benefits in a lump sum), in any way undertake to disparage, demean, or cast in a false, misleading or negative light, the Company, its products, services, officers, directors, employees, agents, affiliates, vendors, or customers, or their successors, or in any other way publish negative statements about them or exhibit an attitude of hostility toward them; provided, however, that nothing herein will prohibit me from providing truthful testimony in a legal proceeding or prohibit conduct that is protected conduct under Section 8(f) below.
d.Use and Return of Company Property. All records related to the Company’s business activities and business development efforts made by me in the course of my Employment (such as contact lists, prospect lists, calendars and notes) wherever stored (in email, text messages, cell phones, computers or otherwise) are the property of the Company. I am not authorized to access and use the Company’s computers, email, or related computer systems to pursue competitive business interests. I will preserve records of Company customers, prospects, suppliers, and other business relationships, and will not knowingly use these records to harm the Company’s business interests. Upon termination of my Employment, I will return all such records, and any copies (tangible and intangible) to the Company. Upon request, I will provide the Company reasonable means to access and verify that no Confidential Information or other Company property has been retained by me on personal computers, cell phones, email or cloud storage accounts to the extent such devices or accounts were used by me in connection with my Employment or the Company’s business, or in any other place that is subject to my ownership or control. The Company shall have the right, at its option, to require me to vacate my office or otherwise remain off the Company’s premises and to cease any and all activities on the Company’s behalf without such action constituting a termination of my Employment or a breach of this Agreement.
e.Conflicting Activities. I agree that I am subject to the prohibitions of Schedule C (as defined therein) on the terms and conditions set forth therein. The Company is herein advising me to consult with an attorney before signing this Agreement and becoming bound by the obligations herein, including in Schedule C.
f.Protected Conduct. I understand that nothing in this Agreement prohibits me from communicating directly with, cooperating with, or providing information to, or receiving financial awards from, any federal, state or local government agency (including, without limitation, the Securities and Exchange Commission or the National Labor Relations Board), without notifying or seeking approval from Company before doing so, nor does it prohibit discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that I have reason to believe is unlawful, or exercising any rights I may have under Section 7 of the National Labor Relations Act. I acknowledge notice that pursuant to the Defend Trade Secrets Act (“DTSA”): (i) no individual (consultant, contractor or employee) will be held criminally or civilly liable under Federal or State trade secret law for the disclosure of a trade secret that: (A) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and made solely for the purpose of reporting or investigating a suspected violation of law; or, (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and (ii) an individual who pursues a lawsuit for
retaliation by an employer for reporting a suspected violation of the law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order. The foregoing will not be construed to invite, permit, or limit liability for otherwise illegal activity such a breaking and entering, illegal computer access (hacking) or theft of the Company property.
9.Dispute Resolution. To ensure the timely and economical resolution of disputes that arise in connection with this Agreement, the Parties agree that, except as excluded herein and as set forth in Section 8(f), any and all controversies, claims and disputes arising out of or relating to this Agreement, including without limitation any alleged violation of its terms, or otherwise arising out of or relating to my Employment relationship with the Company or any of the Related Companies, shall be resolved solely and exclusively by final and binding arbitration, before a single neutral arbitrator, held in San Diego County, California through JAMS in conformity with California law and the then-existing JAMS employment arbitration rules, which can be found at https://www.jamsadr.com/rules-employment-arbitration/, or which will be provided upon reasonable request to the Company’s human resources department. The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. shall govern the interpretation and enforcement of this arbitration clause. All remedies available from a court of competent jurisdiction shall be available in the arbitration; provided, however, that either Party may request temporary or preliminary injunctive relief, to the extent permitted by applicable law, from a court of competent jurisdiction if such relief is not available or not available in a timely fashion through arbitration. The arbitrator shall: (a) provide adequate discovery for the resolution of the dispute; and (b) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award. For any claim arising under this Agreement, the arbitrator may award the prevailing Party reasonable attorneys’ fees, cost, and expert fees, if any, and, to the extent provided by applicable law may award reasonable attorneys’ fees, costs, and expert fees on any other claim. The Parties understand that by agreement to arbitrate any claim pursuant to this Section 9, they will not have the right to have any claim subject to arbitration decided by a jury or a court but shall instead have any claim decided through arbitration. Each Party waives any constitutional or other right to bring claims covered by this Agreement other than in their individual capacities. Except as may be prohibited by applicable law, the foregoing waiver includes the ability to assert claims as a plaintiff or class member in any purported class or collective action or representative proceeding. Neither Party may bring any arbitration on a class, collective or representative basis. In the event that any arbitration to which I am a party qualifies as a “Mass Arbitration” under the terms of the then current JAMS Mass Arbitration Procedures and Guidelines, the current version of which can be found at https://www.jamsadr.com/mass-arbitration-procedures, the then current JAMS Mass Arbitration Procedures and Guidelines shall be applied. I further agree that any dispute brought by me against the Company’s parents, subsidiaries, affiliates, officers, directors, or employees, arising out of or relating to my Employment by the Company, shall be subject to arbitration under this Agreement, and such person or entity may enforce this provision as intended third party beneficiaries. Nothing herein shall limit my ability to pursue claims for workers compensation or unemployment benefits or pursue other claims which by law cannot be subject to mandatory arbitration.
10.Miscellaneous.
a.Taxes. I acknowledge that I am responsible for all taxes owed by me related to my compensation and benefits. The amounts payable pursuant to this Agreement and the attached Schedules are subject to all applicable federal and state tax and required withholding.
b.Beneficiaries and Assignment. This Agreement will be binding upon and inure to the benefit of the Parties, and their heirs and successors. This Agreement will automatically inure to the benefit of and be enforceable by the Company and any of the Related Companies, and any successors and assigns. If I become employed with a Related Company without signing a new agreement, the Related Company will step into Company’s position under this Agreement and will be entitled to the same protections and enforcement rights as the Company. I agree to the assignment of this Agreement and all rights and obligations hereunder, including, but not limited to, an assignment in
connection with any merger, sale, transfer or acquisition consummated by the Company or any of its subsidiaries, affiliates or divisions, or relating to all or part of its assets or the assets of its subsidiaries, affiliates or divisions. The Company will cause any such successor to the Company to assume the Company’s obligations under this Agreement, and a failure by the Company to obtain the assumption of this Agreement by any successor to the Company of all or substantially all of the Company's assets or business shall be deemed a material breach of this Agreement. I understand I will have no right to assign my rights, benefits, duties, obligations or other interests in this Agreement as they are personal to me, other than by will or the laws of descent and distribution. Any attempted assignment by me of my rights, benefits, duties, obligations or other interests in this Agreement in violation of this Agreement will be null and void.
c.Entire Understanding. The Parties are relying upon no representations outside of this Agreement in deciding to enter into this Agreement. This Agreement (inclusive of Schedules) is the entire understanding between the Company and me with respect to all matters herein; provided, however, that this Agreement shall be construed to supplement and not eliminate, supersede or replace my current “Employee Invention and Confidentiality Agreement” or any other agreement containing any restriction on my use of the Confidential Information or trade secrets of the Company and its Related Companies, which prior agreements shall be construed to compliment and not conflict with this Agreement with the understanding that if any irreconcilable conflict between the agreements should arise, this Agreement will control (unless any such prior agreement imposes a post-termination noncompetition or nonsolicitation covenant, in which case this Agreement shall supersede any such covenant if I reside in the State of California at the time I execute this Agreement or if, any time during the term of my Employment, I am a resident of California). Further still, to the extent I have entered into any other agreements as part of the sale or acquisition of a business or business assets that have restrictive covenants, such agreements and the restrictive covenants therein will survive and stand independent from and unaffected by this Agreement. As of the Effective Date, except as otherwise explicitly provided herein, this Agreement replaces and supersedes any and all prior understandings or agreements between the Company or any Related Company and me regarding my Employment, including without limitation, any employment agreement or offer letter between the Company or any Related Company and me or any of its affiliates in effect prior to the Effective Date.
d.Amendment and Waiver. This Agreement will not be modified or amended except by another instrument in writing executed by the Parties. Failure of either party at any time to require performance by the other of any provision of this Agreement will in no way affect the rights of the waiving party to enforce the same thereafter, nor will the waiver by either party of any breach of any provision of this Agreement be held to be a waiver of any succeeding breach of any provision or a waiver of the provision itself.
e.Notices. Any notice, request, demand, or other communication required or permitted hereunder, shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by email upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt, to me at the most recent address listed in the Company’s personnel records, and to the Company at the address below:
Callaway Golf Company
2180 Rutherford Road
Carlsbad, California 92008
Attn: General Counsel
f.Applicable Law. This Agreement will constitute a contract under the internal laws of the State of California and will be governed and construed in accordance with the laws of said state as to both interpretation and performance.
g.Severability. My obligations under this Agreement are each separate and severable obligations. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the Company and I consent to the adjudicator’s enforcement of the restrictions to such lesser extent as would make the restriction reasonable and enforceable and/or agree to the reformation of the restriction (for purposes of that jurisdiction only) where such is necessary to make it enforceable to protect the legitimate business interests of the Company. If, despite the foregoing, any provision in this Agreement is adjudicated to be void, illegal or unenforceable, then it will be severed, and all other provisions contained in this Agreement will remain in full force and effect as if the offending provision was never contained in this Agreement.
h.Survival. Unless otherwise expressly agreed by the Company and me in writing, my obligations under this Agreement will, in accordance with their terms, be unaffected by any change in position, title, duties, or other terms and conditions of my Employment. My post-Employment obligations will survive the termination of my Employment and/or this Agreement. The existence of a claim by me against the Company, whether predicated on this Agreement or otherwise, will not relieve me of my obligation to comply with the restrictions on my conduct provided for in this Agreement or make them unenforceable.
i.Counterparts / Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civ. Code §1633.1, et seq.) or other applicable law) or other transmission method, and any counterpart so delivered shall be deemed to have been duly signed and delivered and be valid and effective for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
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/s/ Brian P. Lynch__________________________
Brian P. Lynch
Date: 4/13/26_________________________
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COMPANY
Callaway Golf Company, a Delaware corporation
By: /s/ Angela Deskins______________________
Angela Deskins
Executive Vice President, Chief People Officer
Date: 5/7/26________________________
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SCHEDULE A
Compensation and Benefits
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule A:
A-1.Compensation, Benefits and Expenses.
a.Position. Executive Vice President, Chief Financial Officer, and Chief Legal Officer, reporting to Chief Executive Officer.
b.Base Salary. $680,000.00 per year. In accordance with the Company’s usual payroll practices, the Company will pay me an annual base salary at the rate described herein (prorated for any partial years of Employment), payable in substantially equal installments on regularly scheduled Company pay dates. My base salary will be reviewed on an annual basis by the Board or its designated representative. The Company reserves the right to increase my base salary pursuant to the Company’s employee compensation practices and policies in effect from time to time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my base salary rate (as the same may be increased during my employment) without my prior written consent.
c.Annual Incentive. I am eligible for a discretionary annual incentive payment based upon participation in the Company’s applicable incentive program as it may or may not be in effect from time-to-time. My annual target incentive percentage is 100% of the actual annual base salary paid to me during the applicable calendar year for which such annual incentive is earned (the “Target Incentive”). Any annual incentive payment earned pursuant to an applicable incentive plan will be paid in accordance with the Company’s then current payroll practices in the first quarter of the year following the end of the Company’s fiscal year to which the annual incentive relates, provided that, except as provided in Schedule B, the annual incentive will not be earned and payable unless I am actively employed in good standing, and have not given, or received, notice of termination of Employment as of the date the annual incentive is paid. The Company reserves the right to increase my Target Incentive pursuant to the Company’s employee compensation practices and policies in effect from time-to-time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my Target Incentive (as the same may be increased during my employment) without my prior written consent.
d.Long-Term Incentives. Subject to approval of the Board or its designated representative, the Company will provide me an opportunity to participate in the Company’s long-term incentive programs under which I may be eligible in accordance with the terms of such programs as in effect from time to time and as may be amended in the sole and absolute discretion of the Company (the “Long-Term Incentive Plans”). My participation in the Long-Term Incentive Plans will be governed by the terms of the Long-Term Incentive Plans, including the notice and grant agreement specific to each Long-Term Incentive Plan award I am awarded. My annual target opportunity under the Company’s Long-Term Incentive Plans (my “Target LTI Opportunity”) will be established annually by the Board or its designated representative. The Company reserves the right to increase my Target LTI Opportunity pursuant to the Company’s Long-Term Incentive Plans in effect from time to time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my Target LTI Opportunity (as the same may be increased during my employment) without my prior written consent.
e.Benefit Plans. The Company will offer me participation in the various employee benefit plans it sponsors such as health and welfare coverage, qualified retirement plans and other insured benefits applicable to my position and subject to my eligibility to participate under the terms of such plans.
f.Paid Time Off/Sick Time. I am eligible to accrue PTO up to the maximum accruals set by the Company in accordance with the terms and conditions of the Company’s PTO Program and as set forth in the most recent “Executive Benefits Summary” provided to me by the Company under separate cover, as may be amended from time-to-time in the Company’s sole and absolute discretion. Accrued PTO may be taken any time during the year subject to prior approval by the Company. I am eligible for paid sick leave days (“Sick Leave”) in accordance with applicable state or local law.
g.Other Perquisites. The Company may provide other perquisites to me from time-to-time as determined by the Company, including those described in the most recent Executive Benefits Summary.
h.Business Expenses. The Company shall reimburse me for the reasonable, customary and necessary expenses I incur in the performance of my duties. My reimbursement for such business expenses is contingent on my compliance with the Company’s expense reimbursement policies as may be in effect from time to time.
SCHEDULE B
Termination Benefits
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule B:
B-1. Severance Benefits.
a.Severance Eligible Termination. If the Company terminates my Employment without Substantial Cause, or if I voluntarily terminate my Employment with the Company for Good Reason, then it will be deemed a “Severance Eligible Termination.” Subject to Sections B-4 and B-6 below, if the termination of my Employment with the Company constitutes a Severance Eligible Termination, in addition to the Accrued Obligations, I will be provided the following “Special Severance”:
i.A one-time, lump-sum payment based on the annual incentive payment I would have received in the then-current year, based on the Company’s actual performance as measured against the requirements of the annual incentive plan, pro-rated to my Termination Date (the “Pro-Rata Incentive Plan Payment”);
ii.The vesting of my unvested long-term incentive compensation awards (e.g., restricted stock units, performance shares, stock appreciation rights, stock options, and other long-term equity-based incentive awards) (“Long-Term Incentive Awards”) that would have vested had I continued to be employed pursuant to this Agreement for a period of twelve (12) months from the Termination Date; provided that any unvested Long-Term Incentive Awards that are subject to performance-based vesting will vest in accordance with this Section B-1(a)(ii) only if, and to the degree that, the performance goals are satisfied in accordance with the terms of the applicable Long-Term Incentive Plan and award agreement thereunder. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-1(a)(ii));
iii.A severance payment equal to the sum of (A) 1.0 time my most recent annual base salary, plus (B) 1.0 time my annual target incentive for the year of termination (calculated for this purpose by multiplying my annual target incentive percentage specified in Schedule A by my most recent annual base salary), payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of twelve (12) months from the Termination Date (the “Special Severance Installments” and such period, the “Special Severance Period”);
iv.for a period of twelve (12) months (or, if earlier, (A) the date on which the applicable continuation period under COBRA and/or Cal-COBRA expires or (B) the date I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment) (such period, the “Assistance Period”), if I and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date elect to have COBRA and/or Cal-COBRA coverage and are eligible for such coverage, the Company shall pay or reimburse me, at its election, on a monthly basis, for an amount equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for myself and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date; provided, however, that, if the Company determines, in its sole discretion, that the Company cannot provide healthcare continuation benefits under this sentence during the Assistance Period without potentially violating or causing the Company to incur financial costs or penalties under applicable law
(including, without limitation, Section 2716 of the Public Health Service Act), the Company shall, in lieu thereof, pay me a monthly taxable cash payment during the Assistance Period (or any remaining portion thereof) equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents (the “Taxable Assistance Period Payments”). In lieu of providing healthcare continuation benefits during the Assistance Period pursuant to the preceding sentence, the Company may elect, at the time of my Severance Eligible Termination, to instead provide me with a one-time, taxable lump-sum payment intended to assist with the post-termination healthcare costs for me and my dependents (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) twelve (12) months (the “Lump Sum Assistance Payment”). If I am paid a Lump Sum Assistance Payment, I will receive the Lump Sum Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Lump Sum Assistance Payment for any purpose in my discretion. I will notify the Company immediately if I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment during the Assistance Period;
v.Continuation of any financial, tax and estate planning services (on the then-existing terms and conditions) through the period during which I am receiving the Special Severance Installments; and
vi.Up to one year of outplacement services through a professional outplacement firm of the Company’s choosing.
The Lump Sum Assistance Payment (if applicable), as well as the vesting of any time-based Long-Term Incentive Awards described in Section B-1(a)(ii), will be made as soon as administratively practicable following the date my Release (as defined below) becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date; the Pro-Rata Incentive Plan Payment, as well as the vesting of any performance-based Long-Term Incentive Awards described above, will be made at such time and in such manner as such performance based payments are regularly made by the Company after the completion of the relevant performance period and the evaluation of whether, and the degree to which, the performance criteria have been met (but in all events, the Pro-Rata Incentive Plan Payment described in Section B-1(a)(i) will be paid no later than March 15 of the calendar year following the year in which my Termination Date occurs and the settlement of such performance-based Long-Term Incentive Awards will occur no later than March 15 of the calendar year following the year in which such awards are no longer subject to a “substantial risk of forfeiture” (as defined in Section 409A)); and the Special Severance Installments and Taxable Assistance Period Payments (if applicable) will commence as soon as administratively practicable following the date the Release becomes effective and irrevocable, but in no event later than the first regularly scheduled payroll date thereafter, and the Special Severance Installments and Taxable Assistance Period Payments (if applicable) shall be paid over time as described above following the effective date of the Release. None of the payments described in this Section B-1 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the effective date of the Release will accrue and be paid as soon as administratively practicable in accordance with the preceding sentence. Except as otherwise provided in this Agreement, I am not eligible for any other payments in connection with my termination of Employment as a result of a Severance Eligible Termination.
a.Severance Eligible Termination Within Twenty-Four Months Following a Change in Control. Subject to Sections B-4 and B-6 below, in the event my Employment is terminated as a result of a
Severance Eligible Termination within the twenty-four (24) month period following a Change in Control (as defined below), in addition to the Accrued Obligations, I will be provided the following “Change in Control Special Severance”:
i.The Special Severance amounts in Section B-1(a) above; provided, however, the Special Severance Installments will consist of the sum of (A) 2.0 (instead of 1.0) times the sum of my most recent annual base salary plus 2.0 (instead of 1.0) times my annual incentive target for the year of termination (calculated for this purpose by multiplying my annual target incentive percentage specified in Schedule A by my most recent annual base salary), payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of twenty-four (24) months from the Termination Date (such period, the “Change in Control Special Severance Period”); provided, further, that the Assistance Period (or the number of months to be covered by any Lump Sum Assistance Payment) will be equal to a period of twenty-four (24) months from the Termination Date. All other Special Severance elements will be payable in accordance with Section B-1(a) above; and
ii.In lieu of the Special Severance in Section B-1(a)(ii) above, (A) the vesting of all of my unvested time-based Long-Term Incentive Awards that vest solely based on my continued employment or service (including awards for which the performance objectives have been satisfied but which remain subject to time-based vesting following the end of the applicable performance period) shall be accelerated effective as of the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date, and (ii) the vesting of all of my unvested Long-Term Incentive Awards that are subject to performance-based vesting (e.g., performance stock units) will vest at the target performance level effective as of the date my Release becomes effective and irrevocable (unless the level of performance was determined at the time of the Change in Control at a higher achievement level in accordance with the applicable award agreement, in which case such higher achievement level shall apply), but in no event later than seventy (70) days after the Termination Date. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-1(b)(ii); and
iii.In addition to the Special Severance in Section B-1(a)(iv) above, I will receive a one-time, taxable lump-sum payment intended to assist with a portion of the post-termination healthcare costs for me and my dependents not covered under Section B-1(a)(iv) above (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) six (6) months (the “Change in Control Supplemental Lump Sum Assistance Payment”). If I am paid a Change in Control Supplemental Lump Sum Assistance Payment, I will receive the Change in Control Supplemental Lump Sum Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Change in Control Supplemental Lump Sum Assistance Payment for any purpose in my discretion. The Change in Control Supplemental Lump Sum Assistance Payment will be made as soon as administratively practicable following the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date.
b.Other Benefits. I agree that payment of Special Severance or Change in Control Special Severance pursuant to this Section B-1 shall be in lieu of, and not in addition to, any other payment that I might otherwise be entitled to, including, but not limited to, payments under any state or federal
Worker Adjustment and Retraining Notification Act, any similar statute, or as provided for under common law.
B-2. Permanent Disability Benefits.
a.Subject to Sections B-4 and B-6 below, in the event my Employment is terminated as a result of my “Permanent Disability” (as defined below), in addition to the Accrued Obligations, I will be provided the following “Permanent Disability Benefit”:
i.A payment equal to 0.500 times my most recent annual base salary, payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of six (6) months from the Termination Date (the “Disability Installments”);
ii.A Pro-Rata Incentive Plan Payment;
iii.The vesting of my unvested Long-Term Incentive Awards that would have vested had I continued to be employed pursuant to this Agreement for period of twelve (12) months from the Termination Date; provided that any unvested Long-Term Incentive Awards that are subject to performance-based vesting will vest in accordance with this Section B-2(a)(iii) only if, and to the degree that, the performance goals are satisfied in accordance with the terms of the applicable Long-Term Incentive Plan and award agreement thereunder. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-2(a)(iii)); and
iv.for a period of twelve (12) months (or, if earlier, (A) the date on which the applicable continuation period under COBRA and/or Cal-COBRA expires or (B) the date I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment) (such period, the “Disability Assistance Period”), if I and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date elect to have COBRA and/or Cal-COBRA coverage and are eligible for such coverage, the Company shall pay or reimburse me, at its election, on a monthly basis, for an amount equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for myself and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date; provided, however, that, if the Company determines, in its sole discretion, that the Company cannot provide healthcare continuation benefits under this sentence during the Disability Assistance Period without potentially violating or causing the Company to incur financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company shall, in lieu thereof, pay me a monthly taxable cash payment during the Disability Assistance Period (or any remaining portion thereof) equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents (the “Taxable Disability Assistance Period Payments”). In lieu of providing healthcare continuation benefits during the Disability Assistance Period pursuant to the preceding sentence, the Company may elect, at the time of my termination of Employment as a result of my Permanent Disability, to instead provide me with a one-time, taxable lump-sum payment intended to assist with the post-termination healthcare costs for me and my dependents (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) twelve (12) (the “Lump Sum
Disability Assistance Payment”). If I am paid a Lump Sum Disability Assistance Payment, I will receive the Lump Sum Disability Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Lump Sum Disability Assistance Payment for any purpose in my discretion. I will notify the Company immediately if I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment during the Disability Assistance Period.
The Lump Sum Disability Assistance Payment (if applicable), as well as the vesting of any time-based Long-Term Incentive Awards described in Section B-2(a)(iii), will be made as soon as administratively practicable following the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date; the Pro-Rata Incentive Plan Payment, as well as the vesting of any performance-based Long-Term Incentive Awards described above, will be made at such time and in such manner as such performance based payments are regularly made by the Company after the completion of the relevant performance period and the evaluation of whether, and the degree to which, the performance criteria have been met (but in all events, the Pro-Rata Incentive Plan Payment described in Section B-2(a)(ii) will be paid no later than March 15 of the calendar year following the year in which my Termination Date occurs and the settlement of such performance-based Long-Term Incentive Awards will occur no later than March 15 of the calendar year following the year in which such awards are no longer subject to a “substantial risk of forfeiture” (as defined in Section 409A)); and the Disability Installments and Taxable Disability Assistance Period Payments (if applicable) will commence as soon as administratively practicable following the date the Release becomes effective and irrevocable, but in no event later than the first regularly scheduled payroll date thereafter, and the Disability Installments and Taxable Disability Assistance Period Payments (if applicable) shall be paid over time as described above following the effective date of the Release. The Permanent Disability benefits provided pursuant to this Section B-2 will be coordinated with other applicable disability insurance as required by the applicable policies. None of the payments described in this Section B-2 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the effective date of the Release will accrue and be paid as soon as administratively practicable in accordance with the preceding sentence. Except as otherwise provided in this Agreement, I will not be entitled to any payments or benefits under Section B-1 as a result of such termination of my Employment by the Company following my Permanent Disability, which shall be considered a termination for Substantial Cause.
For purposes of this Agreement, “Permanent Disability” shall mean my failure to perform or being unable to perform all or substantially all of my duties under this Agreement for a continuous period of six (6) months or more on account of any physical or mental disability, as reasonably determined by the Company or as reflected in the opinion of a qualified physician selected by the Company, provided that, to the extent required under Section 409A, such disability or impairment also qualifies as a “disability” for purposes of Section 409A. The existence of my Permanent Disability shall be determined by the Company in good faith.
B-3. Death Benefits. In the event of my death, in addition to the Accrued Obligations, all my outstanding unvested time-based Long-Term Incentive Awards will immediately vest and be settled as soon as administratively practicable but in no event later than seventy (70) days after the date of my death. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-3). The foregoing benefit is referred to as the “Death Benefit.”
B-4. Requirement for a Release. The Company’s obligation to provide me the severance or any other benefits payable under Sections B-1 and B-2, other than my Accrued Obligations through the Termination
Date, will be conditioned on my (or my representatives if I am unable to sign due to my Permanent Disability) signing a release agreement in the form attached to the Agreement as Schedule D within the time period set forth therein) that, among other things, (a) contains an effective release of any and all claims in favor of the Company and any of the Related Companies, and (b) secures my commitment to abide by all post-Employment obligations applicable to me under this Agreement (referred to hereafter as my “Release”). If, for any reason, my Release does not become effective and irrevocable within sixty (60) days following my Termination Date, I will not be entitled to any payments or benefits pursuant to Sections B-1 and B-2 and will forfeit all rights thereto; however, the Accrued Obligations through the Termination Date will be paid. Additionally, none of the payments or benefits pursuant to Sections B-1 and B-2 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the Release effective date will accrue and be paid as provided in this Schedule B.
B-5. Other. Except for the Accrued Obligations and the amounts specifically provided pursuant to this Schedule B, I shall not be entitled to any further compensation, incentive, damages, restitution, relocation benefits, or other severance benefits upon my termination of Employment. The amounts payable to me pursuant to this Schedule B shall not be treated as damages, but as compensation to which I may be entitled by reason of my termination of Employment under the applicable circumstances. The Company shall not be entitled to set off against the amounts payable to me pursuant to this Schedule B any amounts earned by me in other employment after termination of my Employment with the Company, or any amounts which might have been earned by me in other employment had I sought such other employment. The provisions of this Schedule B shall not limit my rights under or pursuant to any other agreement or understanding with the Company regarding any pension, insurance or other employee benefit plan of the Company to which I am entitled pursuant to the terms of such plan.
B-6. Conditions on Receiving Post-Termination Benefits. My right to all payments or benefits under this Schedule B shall in all events be subject to Sections 6 (Code Section 409A) and 7 (Code Section 280G) of the Agreement. In addition, notwithstanding anything else to the contrary, it is expressly understood that any obligation of the Company to pay any post-termination benefits pursuant to this Schedule B shall be subject to my continued compliance with the terms and conditions of this Agreement, including Section 8 of the Agreement and Schedule C, if applicable. If I breach or threaten to breach this Agreement (including, without limitation, Section 8 of this Agreement or Schedule C, if applicable), the Company will be entitled to cease the payment of any severance or benefits under this Schedule B (other than the Accrued Obligations).
B-7. Definition of Change in Control. For purposes of this Agreement “Change in Control” is defined as a circumstance where:
a.any person, entity or group, within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) but excluding the Company and its subsidiaries and any employee benefit or stock ownership plan of the Company or its subsidiaries and also excluding an underwriter or underwriting syndicate that has acquired the Company’s securities solely in connection with a public offering thereof (such person, entity or group being referred to herein as a “Person”) becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either the then outstanding shares of the common stock of the Company or the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors; or
b.individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board, provided that any individual who becomes a director after the Effective Date whose election, or nomination for election by the Company’s shareholders, is approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered to be a member of the Incumbent Board unless that individual was nominated or elected by any Person having the power to exercise, through beneficial ownership, voting agreement and/or proxy, 20% or more of either the outstanding
shares of the common stock of the Company or the combined voting power of the Company’s then outstanding voting securities entitled to vote generally in the election of directors, in which case that individual shall not be considered to be a member of the Incumbent Board unless such individual’s election or nomination for election by the Company’s shareholders is approved by a vote of at least two-thirds of the directors then comprising the Incumbent Board; or
c.consummation by the Company of the sale or other disposition of all or substantially all of the Company’s assets or a reorganization or merger or consolidation of the Company with any other Person, other than (A) a reorganization or merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto (or, in the case of a reorganization or merger or consolidation that is preceded or accomplished by an acquisition or series of related acquisitions by any Person, by tender or exchange offer or otherwise, of voting securities representing 50% or more of the combined voting power of all securities of the Company, immediately prior to such acquisition or the first acquisition in such series of acquisitions) continuing to represent, either by remaining outstanding or by being converted into voting securities of another entity, more than 50% of the combined voting power of the voting securities of the Company or such other entity outstanding immediately after such reorganization or merger or consolidation (or series of related transactions involving such a reorganization or merger or consolidation), or (B) a reorganization or merger or consolidation effected to implement a recapitalization or reincorporation of the Company (or similar transaction) that does not result in a material change in beneficial ownership of the voting securities of the Company or its successor.
Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to any amount hereunder that provides for the deferral of compensation that is subject to Section 409A, to the extent required to avoid the imposition of additional taxes under Section 409A, the transaction or event shall only constitute a Change in Control for purposes of the payment timing of such amount if such transaction also constitutes a “change in control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5).
SCHEDULE C – CALIFORNIA
Conflicting Activities
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule C:
C-1. Agreement Not to Engage in Conflicting Activities. I acknowledge that in reliance upon my covenants in this Agreement, the Company will provide me with one or more of the following: Confidential Information related to my position and duties; trade secrets; authorization to communicate and develop goodwill with customers, suppliers, employees, and other key business relationships of the Company and its Related Companies; and/or, specialized training related to the business of the Company and its Related Companies. I agree that the foregoing would give me an unfair competitive advantage if my activities were not restricted as provided for in this Agreement during my Employment. In order to avoid activities of this nature and the irreparable harm they cause, I agree that, during my Employment, without the consent of the Company, (i) I will not work for or become associated with any outside business activities for remuneration (whether cash or otherwise), whether or not for a business that would constitute a Competitor for purposes of this Schedule C, and (ii) I will not invest in, provide material assistance to any business, or otherwise pursue any business opportunity, in each case under this clause (ii) that would create a conflict of interest. Also, during my Employment, I will not divert business opportunities away from the Company or the Related Companies for personal gain or interfere with the business relationship between the Company and its employees, customers, suppliers, distributors, or vendors, by soliciting or otherwise encouraging or inducing them to cease or reduce doing business with the Company or the Related Companies except where such conduct is undertaken in the course of my duties for the Company and for the benefit of the Company or the Related Companies.
C-2. Definitions.
a.“Competitor” refers to any business (irrespective of how it is organized) that is engaged in the same line of business as the Company or one so similar in nature that it would displace the business opportunities for the Company’s products and/or services in any markets where the Company does business or has demonstrable plans to do business and with respect to which I was provided access to Confidential Information in the course of Employment. The forgoing will include the products and/or services of a Related Company that I have material involvement with or with respect to which I am provided Confidential Information in the course of my Employment.
b.“Related Companies” means, collectively, the Company’s subsidiaries, affiliates or any other company in which Company has an investment and/or other ownership interest.
c.It is understood that to “solicit” or “soliciting” and their derivations mean to interact with another person or entity with the purpose or foreseeable result being to cause, motivate or induce the person or entity to engage in some responsive action, irrespective of who first initiated contact. It will not include general advertising (such as “help wanted” ads) that are not targeted at the Company’s employees or customers.
C-3. Exception. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prohibits me from owning a non-controlling interest consisting or two percent (2%) or less of any class of securities in any publicly traded company or passive investments through an independently controlled fund such as a mutual fund, provided that I am not a controlling person of, or a member of a group that controls, such business, and further provided that I do not otherwise participate in any conduct prohibited under this Agreement.
C-4. Irreparable Harm. A violation of this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C) by me would cause not only actual and compensable damage, but also
irreparable harm and continuing injury to the Company, for which there would not be an adequate remedy at law. Accordingly, if I breach or threaten to breach this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C), the Company will be entitled to temporary and permanent injunctive relief in addition to, and not in lieu of, any and all other legal remedies to which it would otherwise be entitled. In addition to, and not in lieu of injunctive relief to prevent further violations, the Company will have the right to, in addition to any other legal remedies and damages available, to cease the payment of any severance or benefits under Schedule B hereof. The Company will be deemed the prevailing party for all purposes if any relief is granted to it, irrespective of whether some relief requested by the Company is also denied.
C-5. Survival. My obligations in this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C) shall survive the termination of the Agreement and my Employment under it. My obligations under this Agreement are independent and severable obligations; and, the existence of any claim or cause of action against Company by me, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Company of my obligations under this Agreement. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the adjudicator will enforce the restriction to such lesser extent as would make it reasonable and enforceable and/or reform the restriction to the extent necessary to make it enforceable to protect Company’s legitimate business interests. A presumption provided for in this Agreement may only be overcome by presentation of clear and convincing evidence from the party opposing application of the presumption and shall not apply to the extent that its application would make the restriction, clause or other provision at issue unenforceable. If, despite the foregoing, any provision of this Agreement is adjudicated to be void, illegal or unenforceable, all other provisions will remain in full force and effect, as if the void, illegal, or unenforceable provision is not part of the Agreement except where this Agreement expressly provides otherwise.
SCHEDULE D
Form of Release
This Release of Claims (“Release”) is made pursuant to the Employment Agreement (the “Agreement”) to which this Release is attached as Schedule D and will be effective as of the Release Effective Date (as defined below), by and between the undersigned, _____________________ [NAME], and Callaway Golf Company, a Delaware corporation, (the “Company”), collectively the “Parties.” This Release is entered into in light of the fact that my employment with the Company will terminate effective [_____] and I am eligible to receive the [Special Severance][Change in Control Special Severance][Permanent Disability Benefit] described in Schedule B to the Agreement, subject to the occurrence of the Release Effective Date within the time period specified in Section 3 below and my continued compliance with the terms of this Release and the Agreement. Capitalized terms used herein without definition shall have the meanings given to such terms in the Agreement.
1. Consideration. In consideration for the payment of the [Special Severance][Change in Control Special Severance][Permanent Disability Benefit] described in Schedule B to the Agreement, Employee agrees to the terms and provisions set forth in this Release. In addition, to the extent not already paid, and subject to the terms and conditions of the Agreement, the Company shall pay or provide to me the Accrued Obligations described in the Agreement, subject to and in accordance with the terms thereof.
2. Release. I hereby agree that, other than with respect to the Retained Claims (as defined below), the consideration described in Section 1 represents settlement in full of all outstanding obligations owed to me by the Company, any of its direct or indirect parents, subsidiaries or affiliates, and any of their respective current and former officers, directors, equity holders, managers, employees, agents, investors, attorneys, shareholders, administrators, affiliates, benefit plans, plan administrators, insurers, trustees, divisions, and subsidiaries and predecessor and successor corporations and assigns (collectively, the “Releasees”) related to my employment or service with the Company or any of its direct or indirect parents, subsidiaries or affiliates or termination therefrom. I, on my own behalf and on behalf of any of my affiliates, family members, executors, agents, heirs and assigns, other than with respect to the Retained Claims, hereby and forever release the Releasees from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that I may possess based on any omissions, acts, facts, or damages that have occurred up until and including the date I sign this Release against any of the Releasees arising directly or indirectly out of, relating to or in any other way involving in any manner whatsoever my employment or service with the Company or any of its direct or indirect parents, subsidiaries and affiliates or termination therefrom, including, without limitation:
a.any and all claims relating to or arising from my employment or service relationship with the Company or any of its direct or indirect parents, subsidiaries and affiliates and the termination of that relationship;
b. any and all claims relating to, or arising from, my right to purchase, or actual purchase of any shares of stock or other equity interests of the Company or any of its direct or indirect parents, subsidiaries and affiliates, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state law, and securities fraud under any state or federal law;
c. any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;
d. any and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Equal Pay Act; the Fair Labor Standards Act; the Fair Credit Reporting Act; the Age Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Employee Retirement Income Security Act of 1974; the Worker Adjustment and Retraining Notification Act; the Family and Medical Leave Act; the Sarbanes-Oxley Act of 2002; and the California Fair Employment and Housing Act, California Government Code Section 12940, et seq.;
e. any and all claims for violation of the federal or any state constitution;
f. any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
g. any and all claims arising out of the wage and hour and wage payments laws and regulations of the state or states in which I have provided service to the Company or any of its direct or indirect parents, subsidiaries and affiliates; and
h. any and all claims for attorneys’ fees and costs.
This Release does not release claims that cannot be released as a matter of law, including, but not limited to, my right to report possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002, or any other whistleblower protection provisions of state or federal law or regulation and any right to receive an award for information provided thereunder, my right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company or any Releasee for discrimination (with the understanding that my release of claims herein bars me from recovering such monetary relief from the Company or any Releasee for any alleged discriminatory treatment), claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law, claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of COBRA, claims for indemnity under the bylaws of the Company, as provided for by state law or under any applicable indemnification agreement or insurance policy with respect to my liability as an employee, director or officer of the Company or any of its direct or indirect parents, subsidiaries and affiliates, and claims to any benefit entitlements vested as the Termination Date pursuant to written terms of any employee benefit plan of the Company or its affiliates. This Release further does not release claims for the Company’s breach of its executory obligations under this Release or Schedule B of the Agreement. This Release does not prevent me from engaging in any protected conduct described in Section 8(f) of the Agreement. The claims described in this paragraph are referred to as the “Retained Claims.”
I ACKNOWLEDGE THAT I AM FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
I, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS I MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
3. Acknowledgment of Waiver of Claims under ADEA. I understand and acknowledge that I am waiving and releasing any rights I may have under the Age Discrimination in Employment Act of 1967 (“ADEA”), and that this Release is knowing and voluntary. I understand and agree that this Release does not apply to any rights or claims that may arise under the ADEA after the date I sign this Release. I understand and acknowledge that the consideration given for this Release is in addition to anything of value to which I was already entitled. I further understand and acknowledge that I have been advised by in writing that: (a) I have the right to and should consult with an attorney prior to executing this Release; (b) I have [twenty-one (21)] days within which to consider this Release, and the Parties agree that such time period to review this Release shall not be extended upon any material or immaterial changes to this Release; (c) I have seven (7) calendar days following my execution of this Release to revoke this Release pursuant to written notice to the [Title] of the Company; (d) this Release shall not be effective until after the revocation period has expired; and (e) nothing in this Release prevents or precludes me from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties, or costs for doing so, unless specifically authorized by federal law. In the event I sign this Release and return it to the Company in less than the [twenty-one (21)] day period identified above, I hereby acknowledge that I have freely and voluntarily chosen to waive the time period allotted for considering this Release. This Release will become effective at 12:01 a.m. on the eighth day after I sign this Release (the “Release Effective Date”). I further understand that I will not be given the post-termination benefits described in Section 1 above unless the Release Effective Date occurs on or before the date that is sixty (60) days following my Termination Date.
4.Terminations; Resignations. I hereby confirm my termination and resignation from all offices, directorships, and other employment positions, if any, then held with the Company and any Related Company, and I shall take all actions reasonably requested by the Company to effectuate the foregoing
5. Representations. I represent and warrant that:
a. I have surrendered to the Company all Company property as required under Section 8(d) of the Agreement;
b. I am not owed wages, commissions, bonuses or other compensation, other than the Accrued Obligations and as set forth in this Release; and
c. During the course of my Employment, I did not sustain any injuries for which I might be entitled to compensation pursuant to worker’s compensation law or I have disclosed any injuries of which I am currently, reasonably aware for which I might be entitled to compensation pursuant to worker’s compensation law.
6. Conditions on Receiving Post-Termination Benefits. I hereby expressly reaffirm my continuing obligations under the Agreement, including, without limitation, Section 8 of the Agreement and Schedule C to the Agreement, if applicable, I agree that any obligation of the Company to pay any post-termination benefits to me shall be subject to my continued compliance with the terms and conditions of the Agreement, including Section 8 of the Agreement and Schedule C to the Agreement, if applicable. If I breach or threaten to breach the Agreement (including, without limitation, Section 8 of this Agreement or Schedule C to the Agreement, if applicable), the Company will be entitled to cease the payment of any severance or benefits to me under the Agreement (other than the Accrued Obligations).
7.No Assignment. I hereby represent and warrant to the Releasees that there has been no assignment or other transfer of any interest in any claim that I may have against the Releasees.
8.Dispute Resolution. To ensure the timely and economical resolution of disputes that arise in connection with this Agreement, the Parties agree that, except as excluded herein, any and all controversies,
claims and disputes arising out of or relating to this Release or the Agreement will be governed by Section 9 of the Agreement.
9.Miscellaneous.
a.Beneficiaries and Assignment. This Release will be binding upon and inure to the benefit of the Parties, and their heirs and successors and permitted assigns. This Release will automatically inure to the benefit of and be enforceable by the Company and any of the Related Companies, and any successors and assigns. I understand I will have no right to assign my rights, benefits, duties, obligations or other interests in this Release as they are personal to me, other than by will or the laws of descent and distribution. Any attempted assignment by me of my rights, benefits, duties, obligations or other interests in this Release in contravention of this Release will be null and void.
b.Entire Understanding. I am not relying upon any representations outside of the Agreement or this Release in deciding to enter into this Release. This Release and the Agreement (inclusive of Schedules thereto) represent the entire understanding between the Company and me with respect to all matters herein.
c.Amendment and Waiver. This Release will not be modified or amended except by another instrument in writing executed by the Parties. Failure of either party at any time to require performance by the other of any provision of this Release will in no way affect the rights of the waiving party to enforce the same thereafter, nor will the waiver by either party of any breach of any provision of this Release be held to be a waiver of any succeeding breach of any provision or a waiver of the provision itself.
d.Applicable Law. This Release will constitute a contract under the internal laws of the State of [_____],1 and will be governed and construed in accordance with the laws of said state as to both interpretation and performance.
e.Severability. My obligations under this Agreement are each separate and severable obligations. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the Company and I consent to the adjudicator’s enforcement of the restrictions to such lesser extent as would make the restriction reasonable and enforceable and/or agree to the reformation of the restriction (for purposes of that jurisdiction only) where such is necessary to make it enforceable to protect the legitimate business interests of the Company. If, despite the foregoing, any provision in this Agreement is adjudicated to be void, illegal or unenforceable, then it will be severed, and all other provisions contained in this Agreement will remain in full force and effect as if the offending provision was never contained in this Agreement.
f.Counterparts / Electronic Signature. This Release may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civ. Code §1633.1, et seq.) or other applicable law) or other transmission method, and any counterpart so delivered shall be deemed to have been duly signed and delivered and be valid and effective for all purposes.
10.Voluntary Execution of Agreement. I understand and agree that I executed this Release voluntarily, without any duress or undue influence on the part or behalf of the Company or any third party, with the full
1 DRAFTING NOTE: Insert governing law of Agreement.
intent of releasing all of my claims against the Company and any of the other Releasees. I acknowledge that: (a) I have read this Release; (b) I have been represented in the preparation, negotiation, and execution of this Release by legal counsel of my own choice or have elected not to retain legal counsel; (c) I understand the terms and consequences of this Release and of the releases it contains; and (d) I am fully aware of the legal and binding effect of this Release.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
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EXHIBIT ONLY – DO NOT SIGN AT THIS TIME
________________________________
Employee’s name
Date: ___________________________
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COMPANY
Callaway Golf Company, a Delaware corporation
By: _____________________________________
Signer’s Name & Title
Date: ______________________________
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EX-10.3
4
a3103hickeyglenn-employmen.htm
EX-10.3
Document
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is entered into as of May 7, 2026 (the “Effective Date”) by and between Callaway Golf Company, a Delaware corporation, (the “Company”) and me, Glenn Hickey, each a “Party” and collectively the “Parties.” References to this “Agreement” shall include all of the Schedules attached hereto.
1.Term. My employment hereunder (“Employment”) shall be for a term (the “Term”) commencing on the Effective Date and continuing indefinitely until terminated in accordance with Section 4 of this Agreement. The date my Employment with the Company ends is referred to as my “Termination Date” irrespective of which Party terminated or why termination occurred. Notwithstanding anything to the contrary in the foregoing, my Employment hereunder is terminable at will by the Company or by me at any time (for any reason or for no reason), subject to the provisions of Section 4 hereof.
2.Position and Duties.
a.During the Term, I will serve in the position designated on Schedule A or in such other position or positions as the Board of Directors of the Company (the “Board”) or its designated representative specifies from time-to-time and shall have the duties, responsibilities and obligations customarily assigned to individuals serving in such position or positions as defined by the Board or its designated representative.
I agree to devote all of my working time and efforts to the performance of my duties for the Company and to faithfully and diligently serve the Company in accordance with this Agreement and the guidelines, policies and procedures of the Company, including its Employee Handbook and Code of Conduct, as such shall be adopted, modified or otherwise established by the Company from time-to-time. This does not prohibit me from managing personal investments or involvement in volunteer charitable or community activities provided that they do not violate the terms of this Agreement or interfere or conflict with the satisfactory performance of my Employment duties in the judgment of the Board or its designated representative. By signing this Agreement, I represent to the Company that (i) I am not currently engaged in any outside business activities for remuneration (whether cash or otherwise), and (ii) providing material assistance to any business, or otherwise pursuing any business opportunity, in each case under this clause (ii) that would create a conflict of interest.
b.I can and will perform all of my Employment duties without the use or disclosure of any trade secrets or otherwise protected information of a third party that I am not authorized by that third party to use for the Company’s benefit. I am subject to no legal obligations, contracts, or other obligations that would prevent me from performing the duties of my position with the Company, nor am I in violation of any such legal obligations.
3.Compensation, Benefits and Expenses. I agree to the compensation and benefits described in Schedule A as full and adequate compensation for my services. I understand that my compensation and benefits are provided subject to the Company policies and procedures generally applicable to all Company employees with adjustments as determined by the Board or its designated representative.
4.Termination and Separation Payment Rights. This Agreement and my Employment under it may be terminated as set forth in this Section 4. Upon any termination of my Employment, I shall be entitled to receive my “Accrued Obligations.” For purposes of this Agreement, “Accrued Obligations” as used throughout this Agreement is defined as (A) earned but unpaid base salary, (B) accrued but unused payments or benefits to which I am entitled under Company benefit plans, including the Company’s retirement, insurance and other benefit and compensation plans or programs then in effect, in accordance with the terms of such plans and programs, and (C) accrued but unused paid time off (“PTO”), if applicable. The Accrued
Obligations described in the preceding sentence shall be paid within thirty (30) days after the Termination Date (or such earlier date as may be required by applicable law).
a.Death or Permanent Disability.
i. My Employment will terminate upon my death. If terminated due to death, then my estate will be paid all of my Accrued Obligations through the Termination Date and I will be eligible to receive the “Death Benefit” described in Schedule B, subject to the requirements set forth therein.
ii. Either the Company or I may terminate my employment following my “Permanent Disability” (as defined in Schedule B). If my Employment is terminated as a result of my Permanent Disability, then I will be paid all of my Accrued Obligations through the Termination Date. In addition, in the event of my termination of Employment as a result of my Permanent Disability, I will be eligible to receive the “Permanent Disability Benefit” described in Schedule B, subject to the requirements set forth therein.
b.Substantial Cause. The Company may terminate my Employment for Substantial Cause. If the Company terminates my Employment for Substantial Cause, then I will be paid my Accrued Obligations through the Termination Date and shall not be entitled to any additional severance or other compensation, including any unvested Long-Term Incentive Awards (unless otherwise provided in the applicable Long-Term Incentive Award agreement). The occurrence of any of the events described in parts (i) – (v) below, as reasonably determined by the Board or its designated representative, shall be “Substantial Cause”:
i.my material breach of any provisions of this Agreement or any other material, written contract with the Company or any Related Company (as defined in Schedule C) or under any code of conduct of the Company or any Related Company);
ii.willful and continued failure by me to substantially perform my duties under this Agreement as determined by the Company’s Chief Executive Officer or by the Board, including failure to cooperate with any internal investigation authorized by the Board or its designated representative or an investigation by regulatory or law enforcement authorities;
iii.intentional misconduct by me (including, but not limited to, misappropriation, fraud, including misconduct related to accounting and financial statements, embezzlement or use or possession of illegal drugs during work) and/or any other action that is damaging or detrimental in a significant manner to the Company or any of the Related Companies;
iv.my conviction (or plea of no contest) for any felony (including, but not limited to, any felony involving fraud, moral turpitude, embezzlement or theft in connection with my duties or in the course of my Employment with the Company), or any comparable offense in any applicable foreign jurisdiction; or
v. my use of alcohol or illicit drugs in a manner that has or would reasonably be expected to have a detrimental effect on my performance, my duties to the Company, or the reputation of the Company or any Related Company.
c.Good Reason. I may terminate my Employment under this Agreement for “Good Reason.” If I terminate my Employment for Good Reason, then I will be paid my Accrued Obligations through the Termination Date, and I will be eligible to receive the benefits provided for in Schedule B for a “Severance Eligible Termination,” subject to the requirements set forth therein.
For purposes of this Agreement, “Good Reason” means the occurrence of any of the following without my prior consent:
i.at any time during the Term (including at any time following the date of a Change in Control), a material breach of this Agreement by the Company; or
ii.at any time during the Term (including at any time following the date of a Change in Control), any material diminishment in the title, position, duties, responsibilities or status that I had with the Company, as a publicly traded entity, immediately prior to such diminishment; provided, however, that prior to a Change in Control, a change in your title or reporting position alone shall not constitute Good Reason; or
iii.at any time during the Term (including at any time following the date of a Change in Control), any requirement that I relocate or any assignment to me of duties that would make it unreasonably difficult for me to maintain the principal residence I had immediately prior to such requirement or assignment, and the parties agree that an increase in my one-way commuting distance by more than thirty-five (35) miles prior to such relocation or assignment as a result of any such relocation or assignment shall be automatically considered unreasonably difficult for purposes of this clause (iii); or
iv.at any time during the Term, a material reduction in my Base Salary or Target Incentive (as defined in Schedule B), or a material reduction in my year-over-year Target LTI Opportunity; or
v.during the twenty-four (24) month period following the date of a Change in Control, any reduction, limitation or failure to pay or provide any of the compensation, reimbursable expenses, Long-Term Incentive Awards (as defined in Schedule B), incentive programs, or other benefits or perquisites provided to me under the terms of this Agreement or any other agreement or understanding between the Company and me, or pursuant to the Company's written policies and past practices.
In order for “Good Reason” for my resignation to exist, the foregoing events must remain uncured for more than thirty (30) days despite my written notice to the Company advising it of such occurrence within ninety (90) days of my becoming aware of the occurrence. I will officially resign no later than ninety (90) days following the earlier of the end of the thirty (30) day cure period or the date the Company provides me with written notice of its intent not to cure the event giving rise to Good Reason. If I do not give the Company written notice of the occurrence of an event listed in this Section within ninety (90) days of my becoming aware of it, or such event is cured by the Company within thirty (30) days after written notification from me regarding such occurrence, I will not have “Good Reason” to terminate my Employment as a result of such occurrence.
d.Resignation without Good Reason. If I terminate my Employment without Good Reason, then I will be paid my Accrued Obligations through the Termination Date and shall not be entitled to any additional severance or other compensation, including any unvested Long-Term Incentive Awards.
e.Termination without Substantial Cause. The Company may terminate my Employment at its discretion at any time without Substantial Cause. If the Company terminates my Employment without Substantial Cause, then I will be paid my Accrued Obligations through the Termination Date, and I will be eligible to receive the benefits provided for in Schedule B for a “Severance Eligible Termination,” subject to the requirements set forth therein.
f.Deemed Resignations. Upon termination of my Employment for any reason, unless otherwise specified in a written agreement between the Company and me, I shall be deemed to have
resigned from all offices, directorships, and other employment positions, if any, then held with the Company and any Related Company, and I shall take all actions reasonably requested by the Company to effectuate the foregoing.
5.Clawbacks and Forfeitures.
a.Notwithstanding anything in this Agreement or any other agreement between me and the Company or any Related Company, I agree that I will be subject to, and any compensation paid to me under this Agreement or otherwise will be subject to, reduction, cancellation, forfeiture and/or recoupment under any clawback policy adopted by the Company from time to time that is, by its terms, applicable to me, including the Policy for Recovery of Erroneously Awarded Compensation adopted by the Company effective October 2, 2023 (the “Clawback Policy”), and any other policy adopted by the Company pursuant to the requirements under Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Rule 10D of the Securities Exchange Act of 1934, as amended, and any rules adopted by the national securities exchange on which the Company’s securities are listed, as such policy(ies) may be amended from time to time. Upon the request of the Company, I also agree without further consideration to execute an amendment evidencing the incorporation of the policies into this Agreement and/or my acknowledgment of the application of such policies to my compensation.
b.If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of my intentional misconduct or gross negligence, with respect to any financial reporting requirement under the United States securities laws, then, if requested to do so by the Board of Directors or the Compensation Committee of the Company, in addition to any rights the Company may have under Section 5(a) above, I will forfeit and reimburse the Company for all of the following: (i) any incentive or incentive compensation paid to me based upon such erroneously stated financial information, (ii) any incentive, incentive compensation or equity compensation I received during the twelve (12) month period following the earlier of the first public issuance or filing with the Securities and Exchange Commission of the financial document embodying the financial reporting requirement, (iii) any profits realized by me personally from the sale of Company securities during that same twelve (12) month period, (iv) if my Employment is terminated or has been terminated, my right to receive Special Severance or Change in Control Special Severance, if applicable, and (v) if I am terminated or have been terminated, any unvested Long-Term Incentive Awards.
c.I understand that the Company’s exercise of the recoupment and forfeiture provisions in this Section 5 will not constitute a breach of the terms of this Agreement by the Company and will not otherwise give me the right to terminate my Employment for Good Reason.
6.Code Section 409A Compliance.
a. I understand and agree that this Agreement has been drafted with the intention to comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and its applicable regulations (“Section 409A”). The Company is hereby advising me to obtain independent advice regarding the tax consequences of any compensation payable under this Agreement and I represent I have done so or have determined not to do so in my discretion despite the Company’s advisement. I acknowledge and agree that the Company will not be liable for and will bear no responsibility for any penalties that may be assessed against me for violation of Section 409A.
b. Notwithstanding any other provision of this Agreement, no severance pay or other benefits payable under this Agreement, that when considered together with any other severance payments or separation benefits, are considered deferred compensation under Section 409A or are
otherwise intended to be exempt from Section 409A pursuant to Section 1.409A-1(b)(9) of the Treasury Regulations issued under Section 409A and are payable upon my termination of employment, will be paid or otherwise provided until I have had a “separation from service” within the meaning of Section 409A. Each payment and benefit payable under this Agreement is intended to constitute a separate payment, and the right to a series of installment payments will be treated as a right to a series of separate payments (including, for the avoidance of doubt, the base salary and annual incentive components of the severance or termination benefits payable in installments pursuant to Schedule B, and each such component shall be treated as a separate payment). To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A.
c. If at the time of my termination of Employment with the Company I am a “specified employee” as defined in Section 409A, then, to the extent required under Section 409A, the Company will not commence payment of any compensation or benefits payable upon my “separation of service” until the date that is six (6) months and one (1) day following my Termination Date (or the earliest date as is permitted under Section 409A). In no event will any payment or benefit under this Agreement that is subject to Section 409A be subject to offset by any other amount unless otherwise permitted by Section 409A.
d. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A.
d. If and to the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Section 409A, (i) all such expenses or other reimbursements hereunder will be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred, (ii) any right to reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit, (iii) the amount of expenses eligible for reimbursement, or the in-kind benefits provided, during any taxable year will not affect the expenses eligible for reimbursement, or the in-kind benefits to be provided, in any other taxable year, and (iv) any reimbursement will be for expenses incurred during the period of time specified in this Agreement and if no time period is specified, will be for expenses incurred during my lifetime.
7.Code Section 280G.
a. Best Pay Provision. In the event that any payment or benefit received or to be received by me pursuant to the terms of any plan, arrangement or agreement (including any payment or benefit received in connection with a change in ownership or control or the termination of my Employment) (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part) to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, then the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (after subtracting the amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (after subtracting the net amount of federal, state and local income taxes on such Total Payments and
the amount of Excise Tax to which I would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). Except to the extent that an alternative reduction order would result in a greater economic benefit to me on an after-tax basis, the parties intend that the Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to me that are exempt from Section 409A of the Code, (B) reduction of any other cash payments or benefits otherwise payable to me that are exempt from Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A of the Code, (C) reduction of any other payments or benefits otherwise payable to me on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting and payment with respect to any equity award that is exempt from Section 409A of the Code, and (D) reduction of any payments attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A of the Code; provided, in case of clauses (A), (B) and (C), that reduction of any payments or benefits attributable to the acceleration of vesting of Company equity awards shall be first applied to equity awards with later vesting dates; provided, further, that, notwithstanding the foregoing, any such reduction shall be undertaken in a manner that complies with and does not result in the imposition of additional taxes on me under Section 409A of the Code. The foregoing reductions shall be made in a manner that results in the maximum economic benefit to me on an after-tax basis and, to the extent economically equivalent payments or benefits are subject to reduction, in a pro rata manner.
b. Determinations. All determinations regarding the application of this Section 7 shall be made by an independent accounting firm or consulting group with nationally recognized standing and substantial expertise and experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax retained by the Company prior to the date of the applicable change in ownership or control (the “280G Firm”). For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, and, in calculating the Excise Tax, (i) no portion of the Total Payments shall be taken into account which (A) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (B) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, (ii) no portion of the Total Payments the receipt or enjoyment of which I shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the 280G Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. All determinations related to the calculations to be performed pursuant to this Section 7 shall be done by the 280G Firm. The 280G Firm will be directed to submit its determination and detailed supporting calculations to both the Company and me within fifteen (15) days after notification from either the Company or me that I may receive payments which may be “parachute payments.” The Company and I will each provide the 280G Firm access to and copies of any books, records, and documents as may be reasonably requested by the 280G Firm and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Agreement. The fees and expenses of the 280G Firm for its services in connection with the determinations and calculations contemplated by this Agreement will be borne solely by the Company.
8.Restrictive Covenants.
a.Confidential Information.
i.The Company will entrust me with Confidential Information related to my fiduciary position of trust and confidence with the Company based on the commitments I am making in this Agreement and would not do so without the promises I am making in this Agreement. “Confidential Information” means information, or a compilation of information, in any form (tangible or intangible), related to the Company’s or any of the Related Companies’ business and of value to it that I first acquire or gain access to as a consequence of my Employment with the Company if the Company has not made it public or authorized public disclosure of it and it is not readily available through lawful and proper means to the public or others in the industry who have no obligation to keep it confidential. Confidential Information includes, but is not limited to: the Company’s business plans, financial information and analysis, customer and prospective customer lists, employee lists, marketing plans and strategies, research and development data, buying practices, vendor lists, internal business methods, techniques, technical data, know-how, innovations, computer programs, un-patented inventions, trade secrets, and information about the business affairs of third parties (including, but not limited to, customers, licensors and suppliers) that such third parties provide to the Company in confidence. Due to its special value and utility as a compilation, a confidential compilation (like a customer list) will remain protected as Confidential Information even if some items of information within the list are in the public domain. Private disclosure of otherwise Confidential Information to parties the Company is doing business with for business purposes will not cause the information to lose its protected status under this Agreement.
ii.During my Employment and for so long thereafter as the information qualifies as “Confidential Information” under this Agreement, I will not engage in any use or disclosure of Confidential Information that is not authorized by the Company and undertaken for the benefit of the Company, except as may be permitted under Section 8(f) below. These obligations do not prohibit my use of generally available knowledge, skill and education that is not specific to the Company or its business relationships but is instead knowledge generic to the industry or my profession. I will comply with all Company policies and directives concerning my use, storage, and transfer of Confidential Information. Unless prohibited by law from doing so, I will notify the Company as quickly as possible after being served with a subpoena, order, or other legal mandate requiring the production of Confidential Information so that the Company can take reasonable steps to protect its interests.
b.Intellectual Property.
i.I understand that I am being employed and paid to use all of my abilities, including my creative and inventive skills, for the benefit of the Company. Accordingly I agree that any inventions, improvements, discoveries, ideas, concepts, trademarks, service marks, trade names, copyright eligible works of authorship and mask works (hereinafter referred to collectively as “Intellectual Property”) that I develop, discover, conceive or create while employed with the Company or providing services to a Related Company, alone or with others, during regular working hours or outside of them, that either: (A) relates to the business of the Company or the Related Company or their actual or demonstrably anticipated research and development, (B) is developed or discovered with the assistance of Confidential Information, tools, equipment, personnel or other resources of the Company or a Related Company, or (C) is suggested by, related to, or result from any work performed by me for the Company or a Related Company; will be deemed “Work Product.” I hereby fully and finally assign to the Company all right, title and interest in and to all of my Work Product. My Work Product will be the property of the Company from the date of conception, irrespective of when, how, or if it is ever reduced to tangible form or practice. My assignment of Work Product shall include assignment to the Related Company where the interests of a Related Company are involved as determined by the Company. Notwithstanding the forgoing, nothing in this Agreement creates or requires assignment of an invention that cannot be assigned in an employment agreement under controlling law where controlling state law has such a limitation.
ii.All original works of authorship made by me, solely or jointly with others, while employed with the Company that relate to the Company’s line of business will be considered something done within the scope of my Employment and thus “work made for hire” under the Copyright Act of 1976 (17 U.S.C. § 101) and all comparable laws throughout the world. All ownership and copyrights in this “work for hire” will belong exclusively to the Company or its designee, and to the extent any rights therein are not automatically conveyed to the Company they will be deemed assigned to the Company. In this respect, the covered original works of authorship are also Work Product. Original works of authorship (“Work Products”) covered by the foregoing are understood to include, without limitation, all writings, source code, computer programs, algorithms, photos, images, drawings, branding concepts, and other work product of any nature whatsoever consisting of copyrightable subject matter. I waive all claims I may now or hereafter have to rights of paternity, integrity, disclosure and withdrawal, artists’ rights, and any other rights that may be known as “moral rights” with respect to the above-referenced work made for hire, Work Product, and all derivative works thereof.
iii. I will, during and after my Employment, execute all documents, and will assist the Company in every reasonable and proper way, to obtain and enforce patents, trademark registrations, service mark registrations and copyrights for the Intellectual Property in any and all countries. The Company will pay the expenses for obtaining and enforcing these patents, trademark registrations, service mark registrations, and copyrights. If I retain ownership of any item of Intellectual Property or copyright eligible work that is incorporated into a Company product or service (an item of “Incorporated IP”), I grant to the Company, a non-exclusive, fully paid (royalty-free) and irrevocable worldwide license to incorporate into its products and services, reproduce, make derivative works of, sell, and otherwise use the Incorporated IP.
iv. I acknowledge notice that if I reside and work for the Company in California then my assignment of inventions that qualify as Work Product under Sections 8(b)(i) – (iii) above shall not include inventions which cannot be assigned under California Labor Code §2870; and I acknowledge notice that California Labor Code §2870 provides that: “(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer.”
c.Non-Disparagement. I will not during my Employment with the Company, any applicable Special Severance Period or Change in Control Special Severance Period, and for the twelve (12) months following the later of (i) the date of my termination of Employment or (ii) the last day of any Special Severance Period or Change in Control Severance Period (regardless of whether I receive any severance benefits in a lump sum), in any way undertake to disparage, demean, or cast in a false, misleading or negative light, the Company, its products, services, officers, directors, employees, agents, affiliates, vendors, or customers, or their successors, or in any other way publish negative statements about them or exhibit an attitude of hostility toward them; provided, however, that nothing herein will prohibit me from providing truthful testimony in a legal proceeding or prohibit conduct that is protected conduct under Section 8(f) below.
d.Use and Return of Company Property. All records related to the Company’s business activities and business development efforts made by me in the course of my Employment (such as contact lists, prospect lists, calendars and notes) wherever stored (in email, text messages, cell phones, computers or otherwise) are the property of the Company. I am not authorized to access and use the Company’s computers, email, or related computer systems to pursue competitive business interests. I will preserve records of Company customers, prospects, suppliers, and other business relationships, and will not knowingly use these records to harm the Company’s business interests. Upon termination of my Employment, I will return all such records, and any copies (tangible and intangible) to the Company. Upon request, I will provide the Company reasonable means to access and verify that no Confidential Information or other Company property has been retained by me on personal computers, cell phones, email or cloud storage accounts to the extent such devices or accounts were used by me in connection with my Employment or the Company’s business, or in any other place that is subject to my ownership or control. The Company shall have the right, at its option, to require me to vacate my office or otherwise remain off the Company’s premises and to cease any and all activities on the Company’s behalf without such action constituting a termination of my Employment or a breach of this Agreement.
e.Conflicting Activities. I agree that I am subject to the prohibitions of Schedule C (as defined therein) on the terms and conditions set forth therein. The Company is herein advising me to consult with an attorney before signing this Agreement and becoming bound by the obligations herein, including in Schedule C.
f.Protected Conduct. I understand that nothing in this Agreement prohibits me from communicating directly with, cooperating with, or providing information to, or receiving financial awards from, any federal, state or local government agency (including, without limitation, the Securities and Exchange Commission or the National Labor Relations Board), without notifying or seeking approval from Company before doing so, nor does it prohibit discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that I have reason to believe is unlawful, or exercising any rights I may have under Section 7 of the National Labor Relations Act. I acknowledge notice that pursuant to the Defend Trade Secrets Act (“DTSA”): (i) no individual (consultant, contractor or employee) will be held criminally or civilly liable under Federal or State trade secret law for the disclosure of a trade secret that: (A) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and made solely for the purpose of reporting or investigating a suspected violation of law; or, (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and (ii) an individual who pursues a lawsuit for
retaliation by an employer for reporting a suspected violation of the law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order. The foregoing will not be construed to invite, permit, or limit liability for otherwise illegal activity such a breaking and entering, illegal computer access (hacking) or theft of the Company property.
9.Dispute Resolution. To ensure the timely and economical resolution of disputes that arise in connection with this Agreement, the Parties agree that, except as excluded herein and as set forth in Section 8(f), any and all controversies, claims and disputes arising out of or relating to this Agreement, including without limitation any alleged violation of its terms, or otherwise arising out of or relating to my Employment relationship with the Company or any of the Related Companies, shall be resolved solely and exclusively by final and binding arbitration, before a single neutral arbitrator, held in San Diego County, California through JAMS in conformity with California law and the then-existing JAMS employment arbitration rules, which can be found at https://www.jamsadr.com/rules-employment-arbitration/, or which will be provided upon reasonable request to the Company’s human resources department. The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. shall govern the interpretation and enforcement of this arbitration clause. All remedies available from a court of competent jurisdiction shall be available in the arbitration; provided, however, that either Party may request temporary or preliminary injunctive relief, to the extent permitted by applicable law, from a court of competent jurisdiction if such relief is not available or not available in a timely fashion through arbitration. The arbitrator shall: (a) provide adequate discovery for the resolution of the dispute; and (b) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award. For any claim arising under this Agreement, the arbitrator may award the prevailing Party reasonable attorneys’ fees, cost, and expert fees, if any, and, to the extent provided by applicable law may award reasonable attorneys’ fees, costs, and expert fees on any other claim. The Parties understand that by agreement to arbitrate any claim pursuant to this Section 9, they will not have the right to have any claim subject to arbitration decided by a jury or a court but shall instead have any claim decided through arbitration. Each Party waives any constitutional or other right to bring claims covered by this Agreement other than in their individual capacities. Except as may be prohibited by applicable law, the foregoing waiver includes the ability to assert claims as a plaintiff or class member in any purported class or collective action or representative proceeding. Neither Party may bring any arbitration on a class, collective or representative basis. In the event that any arbitration to which I am a party qualifies as a “Mass Arbitration” under the terms of the then current JAMS Mass Arbitration Procedures and Guidelines, the current version of which can be found at https://www.jamsadr.com/mass-arbitration-procedures, the then current JAMS Mass Arbitration Procedures and Guidelines shall be applied. I further agree that any dispute brought by me against the Company’s parents, subsidiaries, affiliates, officers, directors, or employees, arising out of or relating to my Employment by the Company, shall be subject to arbitration under this Agreement, and such person or entity may enforce this provision as intended third party beneficiaries. Nothing herein shall limit my ability to pursue claims for workers compensation or unemployment benefits or pursue other claims which by law cannot be subject to mandatory arbitration.
10.Miscellaneous.
a.Taxes. I acknowledge that I am responsible for all taxes owed by me related to my compensation and benefits. The amounts payable pursuant to this Agreement and the attached Schedules are subject to all applicable federal and state tax and required withholding.
b.Beneficiaries and Assignment. This Agreement will be binding upon and inure to the benefit of the Parties, and their heirs and successors. This Agreement will automatically inure to the benefit of and be enforceable by the Company and any of the Related Companies, and any successors and assigns. If I become employed with a Related Company without signing a new agreement, the Related Company will step into Company’s position under this Agreement and will be entitled to the same protections and enforcement rights as the Company. I agree to the assignment of this Agreement and all rights and obligations hereunder, including, but not limited to, an assignment in
connection with any merger, sale, transfer or acquisition consummated by the Company or any of its subsidiaries, affiliates or divisions, or relating to all or part of its assets or the assets of its subsidiaries, affiliates or divisions. The Company will cause any such successor to the Company to assume the Company’s obligations under this Agreement, and a failure by the Company to obtain the assumption of this Agreement by any successor to the Company of all or substantially all of the Company's assets or business shall be deemed a material breach of this Agreement. I understand I will have no right to assign my rights, benefits, duties, obligations or other interests in this Agreement as they are personal to me, other than by will or the laws of descent and distribution. Any attempted assignment by me of my rights, benefits, duties, obligations or other interests in this Agreement in violation of this Agreement will be null and void.
c.Entire Understanding. The Parties are relying upon no representations outside of this Agreement in deciding to enter into this Agreement. This Agreement (inclusive of Schedules) is the entire understanding between the Company and me with respect to all matters herein; provided, however, that this Agreement shall be construed to supplement and not eliminate, supersede or replace my current “Employee Invention and Confidentiality Agreement” or any other agreement containing any restriction on my use of the Confidential Information or trade secrets of the Company and its Related Companies, which prior agreements shall be construed to compliment and not conflict with this Agreement with the understanding that if any irreconcilable conflict between the agreements should arise, this Agreement will control (unless any such prior agreement imposes a post-termination noncompetition or nonsolicitation covenant, in which case this Agreement shall supersede any such covenant if I reside in the State of California at the time I execute this Agreement or if, any time during the term of my Employment, I am a resident of California). Further still, to the extent I have entered into any other agreements as part of the sale or acquisition of a business or business assets that have restrictive covenants, such agreements and the restrictive covenants therein will survive and stand independent from and unaffected by this Agreement. As of the Effective Date, except as otherwise explicitly provided herein, this Agreement replaces and supersedes any and all prior understandings or agreements between the Company or any Related Company and me regarding my Employment, including without limitation, any employment agreement or offer letter between the Company or any Related Company and me or any of its affiliates in effect prior to the Effective Date.
d.Amendment and Waiver. This Agreement will not be modified or amended except by another instrument in writing executed by the Parties. Failure of either party at any time to require performance by the other of any provision of this Agreement will in no way affect the rights of the waiving party to enforce the same thereafter, nor will the waiver by either party of any breach of any provision of this Agreement be held to be a waiver of any succeeding breach of any provision or a waiver of the provision itself.
e.Notices. Any notice, request, demand, or other communication required or permitted hereunder, shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by email upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt, to me at the most recent address listed in the Company’s personnel records, and to the Company at the address below:
Callaway Golf Company
2180 Rutherford Road
Carlsbad, California 92008
Attn: General Counsel
f.Applicable Law. This Agreement will constitute a contract under the internal laws of the State of California and will be governed and construed in accordance with the laws of said state as to both interpretation and performance.
g.Severability. My obligations under this Agreement are each separate and severable obligations. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the Company and I consent to the adjudicator’s enforcement of the restrictions to such lesser extent as would make the restriction reasonable and enforceable and/or agree to the reformation of the restriction (for purposes of that jurisdiction only) where such is necessary to make it enforceable to protect the legitimate business interests of the Company. If, despite the foregoing, any provision in this Agreement is adjudicated to be void, illegal or unenforceable, then it will be severed, and all other provisions contained in this Agreement will remain in full force and effect as if the offending provision was never contained in this Agreement.
h.Survival. Unless otherwise expressly agreed by the Company and me in writing, my obligations under this Agreement will, in accordance with their terms, be unaffected by any change in position, title, duties, or other terms and conditions of my Employment. My post-Employment obligations will survive the termination of my Employment and/or this Agreement. The existence of a claim by me against the Company, whether predicated on this Agreement or otherwise, will not relieve me of my obligation to comply with the restrictions on my conduct provided for in this Agreement or make them unenforceable.
i.Counterparts / Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civ. Code §1633.1, et seq.) or other applicable law) or other transmission method, and any counterpart so delivered shall be deemed to have been duly signed and delivered and be valid and effective for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
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/s/ Glenn Hickey___________________________
Glenn Hickey
Date: 4/24/26_________________________
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COMPANY
Callaway Golf Company, a Delaware corporation
By: /s/ Brian P. Lynch_______________________
Brian P. Lynch, Executive Vice President,
Chief Financial Officer, Chief Legal Officer
Date: 5/7/26_________________________
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SCHEDULE A
Compensation and Benefits
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule A:
A-1.Compensation, Benefits and Expenses.
a.Position. Executive Vice President, President, Callaway Golf Sales Company, reporting to Chief Executive Officer.
b.Base Salary. $570,000.00 per year. In accordance with the Company’s usual payroll practices, the Company will pay me an annual base salary at the rate described herein (prorated for any partial years of Employment), payable in substantially equal installments on regularly scheduled Company pay dates. My base salary will be reviewed on an annual basis by the Board or its designated representative. The Company reserves the right to increase my base salary pursuant to the Company’s employee compensation practices and policies in effect from time to time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my base salary rate (as the same may be increased during my employment) without my prior written consent.
c.Annual Incentive. I am eligible for a discretionary annual incentive payment based upon participation in the Company’s applicable incentive program as it may or may not be in effect from time-to-time. My annual target incentive percentage is 75% of the actual annual base salary paid to me during the applicable calendar year for which such annual incentive is earned (the “Target Incentive”). Any annual incentive payment earned pursuant to an applicable incentive plan will be paid in accordance with the Company’s then current payroll practices in the first quarter of the year following the end of the Company’s fiscal year to which the annual incentive relates, provided that, except as provided in Schedule B, the annual incentive will not be earned and payable unless I am actively employed in good standing, and have not given, or received, notice of termination of Employment as of the date the annual incentive is paid. The Company reserves the right to increase my Target Incentive pursuant to the Company’s employee compensation practices and policies in effect from time-to-time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my Target Incentive (as the same may be increased during my employment) without my prior written consent.
d.Long-Term Incentives. Subject to approval of the Board or its designated representative, the Company will provide me an opportunity to participate in the Company’s long-term incentive programs under which I may be eligible in accordance with the terms of such programs as in effect from time to time and as may be amended in the sole and absolute discretion of the Company (the “Long-Term Incentive Plans”). My participation in the Long-Term Incentive Plans will be governed by the terms of the Long-Term Incentive Plans, including the notice and grant agreement specific to each Long-Term Incentive Plan award I am awarded. My annual target opportunity under the Company’s Long-Term Incentive Plans (my “Target LTI Opportunity”) will be established annually by the Board or its designated representative. The Company reserves the right to increase my Target LTI Opportunity pursuant to the Company’s Long-Term Incentive Plans in effect from time to time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my Target LTI Opportunity (as the same may be increased during my employment) without my prior written consent.
e.Benefit Plans. The Company will offer me participation in the various employee benefit plans it sponsors such as health and welfare coverage, qualified retirement plans and other insured benefits applicable to my position and subject to my eligibility to participate under the terms of such plans.
f.Paid Time Off/Sick Time. I am eligible to accrue PTO up to the maximum accruals set by the Company in accordance with the terms and conditions of the Company’s PTO Program and as set forth in the most recent “Executive Benefits Summary” provided to me by the Company under separate cover, as may be amended from time-to-time in the Company’s sole and absolute discretion. Accrued PTO may be taken any time during the year subject to prior approval by the Company. I am eligible for paid sick leave days (“Sick Leave”) in accordance with applicable state or local law.
g.Other Perquisites. The Company may provide other perquisites to me from time-to-time as determined by the Company, including those described in the most recent Executive Benefits Summary.
h.Business Expenses. The Company shall reimburse me for the reasonable, customary and necessary expenses I incur in the performance of my duties. My reimbursement for such business expenses is contingent on my compliance with the Company’s expense reimbursement policies as may be in effect from time to time.
SCHEDULE B
Termination Benefits
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule B:
B-1. Severance Benefits.
a.Severance Eligible Termination. If the Company terminates my Employment without Substantial Cause, or if I voluntarily terminate my Employment with the Company for Good Reason, then it will be deemed a “Severance Eligible Termination.” Subject to Sections B-4 and B-6 below, if the termination of my Employment with the Company constitutes a Severance Eligible Termination, in addition to the Accrued Obligations, I will be provided the following “Special Severance”:
i.A one-time, lump-sum payment based on the annual incentive payment I would have received in the then-current year, based on the Company’s actual performance as measured against the requirements of the annual incentive plan, pro-rated to my Termination Date (the “Pro-Rata Incentive Plan Payment”);
ii.The vesting of my unvested long-term incentive compensation awards (e.g., restricted stock units, performance shares, stock appreciation rights, stock options, and other long-term equity-based incentive awards) (“Long-Term Incentive Awards”) that would have vested had I continued to be employed pursuant to this Agreement for a period of twelve (12) months from the Termination Date; provided that any unvested Long-Term Incentive Awards that are subject to performance-based vesting will vest in accordance with this Section B-1(a)(ii) only if, and to the degree that, the performance goals are satisfied in accordance with the terms of the applicable Long-Term Incentive Plan and award agreement thereunder. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-1(a)(ii));
iii.A severance payment equal to the sum of (A) 1.0 time my most recent annual base salary, plus (B) 1.0 time my annual target incentive for the year of termination (calculated for this purpose by multiplying my annual target incentive percentage specified in Schedule A by my most recent annual base salary), payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of twelve (12) months from the Termination Date (the “Special Severance Installments” and such period, the “Special Severance Period”);
iv.for a period of twelve (12) months (or, if earlier, (A) the date on which the applicable continuation period under COBRA and/or Cal-COBRA expires or (B) the date I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment) (such period, the “Assistance Period”), if I and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date elect to have COBRA and/or Cal-COBRA coverage and are eligible for such coverage, the Company shall pay or reimburse me, at its election, on a monthly basis, for an amount equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for myself and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date; provided, however, that, if the Company determines, in its sole discretion, that the Company cannot provide healthcare continuation benefits under this sentence during the Assistance Period without potentially violating or causing the Company to incur financial costs or penalties under applicable law
(including, without limitation, Section 2716 of the Public Health Service Act), the Company shall, in lieu thereof, pay me a monthly taxable cash payment during the Assistance Period (or any remaining portion thereof) equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents (the “Taxable Assistance Period Payments”). In lieu of providing healthcare continuation benefits during the Assistance Period pursuant to the preceding sentence, the Company may elect, at the time of my Severance Eligible Termination, to instead provide me with a one-time, taxable lump-sum payment intended to assist with the post-termination healthcare costs for me and my dependents (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) twelve (12) months (the “Lump Sum Assistance Payment”). If I am paid a Lump Sum Assistance Payment, I will receive the Lump Sum Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Lump Sum Assistance Payment for any purpose in my discretion. I will notify the Company immediately if I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment during the Assistance Period;
v.Continuation of any financial, tax and estate planning services (on the then-existing terms and conditions) through the period during which I am receiving the Special Severance Installments; and
vi.Up to one year of outplacement services through a professional outplacement firm of the Company’s choosing.
The Lump Sum Assistance Payment (if applicable), as well as the vesting of any time-based Long-Term Incentive Awards described in Section B-1(a)(ii), will be made as soon as administratively practicable following the date my Release (as defined below) becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date; the Pro-Rata Incentive Plan Payment, as well as the vesting of any performance-based Long-Term Incentive Awards described above, will be made at such time and in such manner as such performance based payments are regularly made by the Company after the completion of the relevant performance period and the evaluation of whether, and the degree to which, the performance criteria have been met (but in all events, the Pro-Rata Incentive Plan Payment described in Section B-1(a)(i) will be paid no later than March 15 of the calendar year following the year in which my Termination Date occurs and the settlement of such performance-based Long-Term Incentive Awards will occur no later than March 15 of the calendar year following the year in which such awards are no longer subject to a “substantial risk of forfeiture” (as defined in Section 409A)); and the Special Severance Installments and Taxable Assistance Period Payments (if applicable) will commence as soon as administratively practicable following the date the Release becomes effective and irrevocable, but in no event later than the first regularly scheduled payroll date thereafter, and the Special Severance Installments and Taxable Assistance Period Payments (if applicable) shall be paid over time as described above following the effective date of the Release. None of the payments described in this Section B-1 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the effective date of the Release will accrue and be paid as soon as administratively practicable in accordance with the preceding sentence. Except as otherwise provided in this Agreement, I am not eligible for any other payments in connection with my termination of Employment as a result of a Severance Eligible Termination.
a.Severance Eligible Termination Within Twenty-Four Months Following a Change in Control. Subject to Sections B-4 and B-6 below, in the event my Employment is terminated as a result of a
Severance Eligible Termination within the twenty-four (24) month period following a Change in Control (as defined below), in addition to the Accrued Obligations, I will be provided the following “Change in Control Special Severance”:
i.The Special Severance amounts in Section B-1(a) above; provided, however, the Special Severance Installments will consist of the sum of (A) 2.0 (instead of 1.0) times the sum of my most recent annual base salary plus 2.0 (instead of 1.0) times my annual incentive target for the year of termination (calculated for this purpose by multiplying my annual target incentive percentage specified in Schedule A by my most recent annual base salary), payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of twenty-four (24) months from the Termination Date (such period, the “Change in Control Special Severance Period”); provided, further, that the Assistance Period (or the number of months to be covered by any Lump Sum Assistance Payment) will be equal to a period of twenty-four (24) months from the Termination Date. All other Special Severance elements will be payable in accordance with Section B-1(a) above; and
ii.In lieu of the Special Severance in Section B-1(a)(ii) above, (A) the vesting of all of my unvested time-based Long-Term Incentive Awards that vest solely based on my continued employment or service (including awards for which the performance objectives have been satisfied but which remain subject to time-based vesting following the end of the applicable performance period) shall be accelerated effective as of the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date, and (ii) the vesting of all of my unvested Long-Term Incentive Awards that are subject to performance-based vesting (e.g., performance stock units) will vest at the target performance level effective as of the date my Release becomes effective and irrevocable (unless the level of performance was determined at the time of the Change in Control at a higher achievement level in accordance with the applicable award agreement, in which case such higher achievement level shall apply), but in no event later than seventy (70) days after the Termination Date. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-1(b)(ii); and
iii.In addition to the Special Severance in Section B-1(a)(iv) above, I will receive a one-time, taxable lump-sum payment intended to assist with a portion of the post-termination healthcare costs for me and my dependents not covered under Section B-1(a)(iv) above (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) six (6) months (the “Change in Control Supplemental Lump Sum Assistance Payment”). If I am paid a Change in Control Supplemental Lump Sum Assistance Payment, I will receive the Change in Control Supplemental Lump Sum Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Change in Control Supplemental Lump Sum Assistance Payment for any purpose in my discretion. The Change in Control Supplemental Lump Sum Assistance Payment will be made as soon as administratively practicable following the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date.
b.Other Benefits. I agree that payment of Special Severance or Change in Control Special Severance pursuant to this Section B-1 shall be in lieu of, and not in addition to, any other payment that I might otherwise be entitled to, including, but not limited to, payments under any state or federal
Worker Adjustment and Retraining Notification Act, any similar statute, or as provided for under common law.
B-2. Permanent Disability Benefits.
a.Subject to Sections B-4 and B-6 below, in the event my Employment is terminated as a result of my “Permanent Disability” (as defined below), in addition to the Accrued Obligations, I will be provided the following “Permanent Disability Benefit”:
i.A payment equal to 0.500 times my most recent annual base salary, payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of six (6) months from the Termination Date (the “Disability Installments”);
ii.A Pro-Rata Incentive Plan Payment;
iii.The vesting of my unvested Long-Term Incentive Awards that would have vested had I continued to be employed pursuant to this Agreement for period of twelve (12) months from the Termination Date; provided that any unvested Long-Term Incentive Awards that are subject to performance-based vesting will vest in accordance with this Section B-2(a)(iii) only if, and to the degree that, the performance goals are satisfied in accordance with the terms of the applicable Long-Term Incentive Plan and award agreement thereunder. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-2(a)(iii)); and
iv.for a period of twelve (12) months (or, if earlier, (A) the date on which the applicable continuation period under COBRA and/or Cal-COBRA expires or (B) the date I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment) (such period, the “Disability Assistance Period”), if I and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date elect to have COBRA and/or Cal-COBRA coverage and are eligible for such coverage, the Company shall pay or reimburse me, at its election, on a monthly basis, for an amount equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for myself and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date; provided, however, that, if the Company determines, in its sole discretion, that the Company cannot provide healthcare continuation benefits under this sentence during the Disability Assistance Period without potentially violating or causing the Company to incur financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company shall, in lieu thereof, pay me a monthly taxable cash payment during the Disability Assistance Period (or any remaining portion thereof) equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents (the “Taxable Disability Assistance Period Payments”). In lieu of providing healthcare continuation benefits during the Disability Assistance Period pursuant to the preceding sentence, the Company may elect, at the time of my termination of Employment as a result of my Permanent Disability, to instead provide me with a one-time, taxable lump-sum payment intended to assist with the post-termination healthcare costs for me and my dependents (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) twelve (12) (the “Lump Sum
Disability Assistance Payment”). If I am paid a Lump Sum Disability Assistance Payment, I will receive the Lump Sum Disability Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Lump Sum Disability Assistance Payment for any purpose in my discretion. I will notify the Company immediately if I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment during the Disability Assistance Period.
The Lump Sum Disability Assistance Payment (if applicable), as well as the vesting of any time-based Long-Term Incentive Awards described in Section B-2(a)(iii), will be made as soon as administratively practicable following the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date; the Pro-Rata Incentive Plan Payment, as well as the vesting of any performance-based Long-Term Incentive Awards described above, will be made at such time and in such manner as such performance based payments are regularly made by the Company after the completion of the relevant performance period and the evaluation of whether, and the degree to which, the performance criteria have been met (but in all events, the Pro-Rata Incentive Plan Payment described in Section B-2(a)(ii) will be paid no later than March 15 of the calendar year following the year in which my Termination Date occurs and the settlement of such performance-based Long-Term Incentive Awards will occur no later than March 15 of the calendar year following the year in which such awards are no longer subject to a “substantial risk of forfeiture” (as defined in Section 409A)); and the Disability Installments and Taxable Disability Assistance Period Payments (if applicable) will commence as soon as administratively practicable following the date the Release becomes effective and irrevocable, but in no event later than the first regularly scheduled payroll date thereafter, and the Disability Installments and Taxable Disability Assistance Period Payments (if applicable) shall be paid over time as described above following the effective date of the Release. The Permanent Disability benefits provided pursuant to this Section B-2 will be coordinated with other applicable disability insurance as required by the applicable policies. None of the payments described in this Section B-2 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the effective date of the Release will accrue and be paid as soon as administratively practicable in accordance with the preceding sentence. Except as otherwise provided in this Agreement, I will not be entitled to any payments or benefits under Section B-1 as a result of such termination of my Employment by the Company following my Permanent Disability, which shall be considered a termination for Substantial Cause.
For purposes of this Agreement, “Permanent Disability” shall mean my failure to perform or being unable to perform all or substantially all of my duties under this Agreement for a continuous period of six (6) months or more on account of any physical or mental disability, as reasonably determined by the Company or as reflected in the opinion of a qualified physician selected by the Company, provided that, to the extent required under Section 409A, such disability or impairment also qualifies as a “disability” for purposes of Section 409A. The existence of my Permanent Disability shall be determined by the Company in good faith.
B-3. Death Benefits. In the event of my death, in addition to the Accrued Obligations, all my outstanding unvested time-based Long-Term Incentive Awards will immediately vest and be settled as soon as administratively practicable but in no event later than seventy (70) days after the date of my death. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-3). The foregoing benefit is referred to as the “Death Benefit.”
B-4. Requirement for a Release. The Company’s obligation to provide me the severance or any other benefits payable under Sections B-1 and B-2, other than my Accrued Obligations through the Termination
Date, will be conditioned on my (or my representatives if I am unable to sign due to my Permanent Disability) signing a release agreement in the form attached to the Agreement as Schedule D within the time period set forth therein) that, among other things, (a) contains an effective release of any and all claims in favor of the Company and any of the Related Companies, and (b) secures my commitment to abide by all post-Employment obligations applicable to me under this Agreement (referred to hereafter as my “Release”). If, for any reason, my Release does not become effective and irrevocable within sixty (60) days following my Termination Date, I will not be entitled to any payments or benefits pursuant to Sections B-1 and B-2 and will forfeit all rights thereto; however, the Accrued Obligations through the Termination Date will be paid. Additionally, none of the payments or benefits pursuant to Sections B-1 and B-2 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the Release effective date will accrue and be paid as provided in this Schedule B.
B-5. Other. Except for the Accrued Obligations and the amounts specifically provided pursuant to this Schedule B, I shall not be entitled to any further compensation, incentive, damages, restitution, relocation benefits, or other severance benefits upon my termination of Employment. The amounts payable to me pursuant to this Schedule B shall not be treated as damages, but as compensation to which I may be entitled by reason of my termination of Employment under the applicable circumstances. The Company shall not be entitled to set off against the amounts payable to me pursuant to this Schedule B any amounts earned by me in other employment after termination of my Employment with the Company, or any amounts which might have been earned by me in other employment had I sought such other employment. The provisions of this Schedule B shall not limit my rights under or pursuant to any other agreement or understanding with the Company regarding any pension, insurance or other employee benefit plan of the Company to which I am entitled pursuant to the terms of such plan.
B-6. Conditions on Receiving Post-Termination Benefits. My right to all payments or benefits under this Schedule B shall in all events be subject to Sections 6 (Code Section 409A) and 7 (Code Section 280G) of the Agreement. In addition, notwithstanding anything else to the contrary, it is expressly understood that any obligation of the Company to pay any post-termination benefits pursuant to this Schedule B shall be subject to my continued compliance with the terms and conditions of this Agreement, including Section 8 of the Agreement and Schedule C, if applicable. If I breach or threaten to breach this Agreement (including, without limitation, Section 8 of this Agreement or Schedule C, if applicable), the Company will be entitled to cease the payment of any severance or benefits under this Schedule B (other than the Accrued Obligations).
B-7. Definition of Change in Control. For purposes of this Agreement “Change in Control” is defined as a circumstance where:
a.any person, entity or group, within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) but excluding the Company and its subsidiaries and any employee benefit or stock ownership plan of the Company or its subsidiaries and also excluding an underwriter or underwriting syndicate that has acquired the Company’s securities solely in connection with a public offering thereof (such person, entity or group being referred to herein as a “Person”) becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either the then outstanding shares of the common stock of the Company or the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors; or
b.individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board, provided that any individual who becomes a director after the Effective Date whose election, or nomination for election by the Company’s shareholders, is approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered to be a member of the Incumbent Board unless that individual was nominated or elected by any Person having the power to exercise, through beneficial ownership, voting agreement and/or proxy, 20% or more of either the outstanding
shares of the common stock of the Company or the combined voting power of the Company’s then outstanding voting securities entitled to vote generally in the election of directors, in which case that individual shall not be considered to be a member of the Incumbent Board unless such individual’s election or nomination for election by the Company’s shareholders is approved by a vote of at least two-thirds of the directors then comprising the Incumbent Board; or
c.consummation by the Company of the sale or other disposition of all or substantially all of the Company’s assets or a reorganization or merger or consolidation of the Company with any other Person, other than (A) a reorganization or merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto (or, in the case of a reorganization or merger or consolidation that is preceded or accomplished by an acquisition or series of related acquisitions by any Person, by tender or exchange offer or otherwise, of voting securities representing 50% or more of the combined voting power of all securities of the Company, immediately prior to such acquisition or the first acquisition in such series of acquisitions) continuing to represent, either by remaining outstanding or by being converted into voting securities of another entity, more than 50% of the combined voting power of the voting securities of the Company or such other entity outstanding immediately after such reorganization or merger or consolidation (or series of related transactions involving such a reorganization or merger or consolidation), or (B) a reorganization or merger or consolidation effected to implement a recapitalization or reincorporation of the Company (or similar transaction) that does not result in a material change in beneficial ownership of the voting securities of the Company or its successor.
Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to any amount hereunder that provides for the deferral of compensation that is subject to Section 409A, to the extent required to avoid the imposition of additional taxes under Section 409A, the transaction or event shall only constitute a Change in Control for purposes of the payment timing of such amount if such transaction also constitutes a “change in control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5).
SCHEDULE C – CALIFORNIA
Conflicting Activities
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule C:
C-1. Agreement Not to Engage in Conflicting Activities. I acknowledge that in reliance upon my covenants in this Agreement, the Company will provide me with one or more of the following: Confidential Information related to my position and duties; trade secrets; authorization to communicate and develop goodwill with customers, suppliers, employees, and other key business relationships of the Company and its Related Companies; and/or, specialized training related to the business of the Company and its Related Companies. I agree that the foregoing would give me an unfair competitive advantage if my activities were not restricted as provided for in this Agreement during my Employment. In order to avoid activities of this nature and the irreparable harm they cause, I agree that, during my Employment, without the consent of the Company, (i) I will not work for or become associated with any outside business activities for remuneration (whether cash or otherwise), whether or not for a business that would constitute a Competitor for purposes of this Schedule C, and (ii) I will not invest in, provide material assistance to any business, or otherwise pursue any business opportunity, in each case under this clause (ii) that would create a conflict of interest. Also, during my Employment, I will not divert business opportunities away from the Company or the Related Companies for personal gain or interfere with the business relationship between the Company and its employees, customers, suppliers, distributors, or vendors, by soliciting or otherwise encouraging or inducing them to cease or reduce doing business with the Company or the Related Companies except where such conduct is undertaken in the course of my duties for the Company and for the benefit of the Company or the Related Companies.
C-2. Definitions.
a.“Competitor” refers to any business (irrespective of how it is organized) that is engaged in the same line of business as the Company or one so similar in nature that it would displace the business opportunities for the Company’s products and/or services in any markets where the Company does business or has demonstrable plans to do business and with respect to which I was provided access to Confidential Information in the course of Employment. The forgoing will include the products and/or services of a Related Company that I have material involvement with or with respect to which I am provided Confidential Information in the course of my Employment.
b.“Related Companies” means, collectively, the Company’s subsidiaries, affiliates or any other company in which Company has an investment and/or other ownership interest.
c.It is understood that to “solicit” or “soliciting” and their derivations mean to interact with another person or entity with the purpose or foreseeable result being to cause, motivate or induce the person or entity to engage in some responsive action, irrespective of who first initiated contact. It will not include general advertising (such as “help wanted” ads) that are not targeted at the Company’s employees or customers.
C-3. Exception. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prohibits me from owning a non-controlling interest consisting or two percent (2%) or less of any class of securities in any publicly traded company or passive investments through an independently controlled fund such as a mutual fund, provided that I am not a controlling person of, or a member of a group that controls, such business, and further provided that I do not otherwise participate in any conduct prohibited under this Agreement.
C-4. Irreparable Harm. A violation of this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C) by me would cause not only actual and compensable damage, but also
irreparable harm and continuing injury to the Company, for which there would not be an adequate remedy at law. Accordingly, if I breach or threaten to breach this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C), the Company will be entitled to temporary and permanent injunctive relief in addition to, and not in lieu of, any and all other legal remedies to which it would otherwise be entitled. In addition to, and not in lieu of injunctive relief to prevent further violations, the Company will have the right to, in addition to any other legal remedies and damages available, to cease the payment of any severance or benefits under Schedule B hereof. The Company will be deemed the prevailing party for all purposes if any relief is granted to it, irrespective of whether some relief requested by the Company is also denied.
C-5. Survival. My obligations in this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C) shall survive the termination of the Agreement and my Employment under it. My obligations under this Agreement are independent and severable obligations; and, the existence of any claim or cause of action against Company by me, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Company of my obligations under this Agreement. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the adjudicator will enforce the restriction to such lesser extent as would make it reasonable and enforceable and/or reform the restriction to the extent necessary to make it enforceable to protect Company’s legitimate business interests. A presumption provided for in this Agreement may only be overcome by presentation of clear and convincing evidence from the party opposing application of the presumption and shall not apply to the extent that its application would make the restriction, clause or other provision at issue unenforceable. If, despite the foregoing, any provision of this Agreement is adjudicated to be void, illegal or unenforceable, all other provisions will remain in full force and effect, as if the void, illegal, or unenforceable provision is not part of the Agreement except where this Agreement expressly provides otherwise.
SCHEDULE D
Form of Release
This Release of Claims (“Release”) is made pursuant to the Employment Agreement (the “Agreement”) to which this Release is attached as Schedule D and will be effective as of the Release Effective Date (as defined below), by and between the undersigned, _____________________ [NAME], and Callaway Golf Company, a Delaware corporation, (the “Company”), collectively the “Parties.” This Release is entered into in light of the fact that my employment with the Company will terminate effective [_____] and I am eligible to receive the [Special Severance][Change in Control Special Severance][Permanent Disability Benefit] described in Schedule B to the Agreement, subject to the occurrence of the Release Effective Date within the time period specified in Section 3 below and my continued compliance with the terms of this Release and the Agreement. Capitalized terms used herein without definition shall have the meanings given to such terms in the Agreement.
1. Consideration. In consideration for the payment of the [Special Severance][Change in Control Special Severance][Permanent Disability Benefit] described in Schedule B to the Agreement, Employee agrees to the terms and provisions set forth in this Release. In addition, to the extent not already paid, and subject to the terms and conditions of the Agreement, the Company shall pay or provide to me the Accrued Obligations described in the Agreement, subject to and in accordance with the terms thereof.
2. Release. I hereby agree that, other than with respect to the Retained Claims (as defined below), the consideration described in Section 1 represents settlement in full of all outstanding obligations owed to me by the Company, any of its direct or indirect parents, subsidiaries or affiliates, and any of their respective current and former officers, directors, equity holders, managers, employees, agents, investors, attorneys, shareholders, administrators, affiliates, benefit plans, plan administrators, insurers, trustees, divisions, and subsidiaries and predecessor and successor corporations and assigns (collectively, the “Releasees”) related to my employment or service with the Company or any of its direct or indirect parents, subsidiaries or affiliates or termination therefrom. I, on my own behalf and on behalf of any of my affiliates, family members, executors, agents, heirs and assigns, other than with respect to the Retained Claims, hereby and forever release the Releasees from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that I may possess based on any omissions, acts, facts, or damages that have occurred up until and including the date I sign this Release against any of the Releasees arising directly or indirectly out of, relating to or in any other way involving in any manner whatsoever my employment or service with the Company or any of its direct or indirect parents, subsidiaries and affiliates or termination therefrom, including, without limitation:
a.any and all claims relating to or arising from my employment or service relationship with the Company or any of its direct or indirect parents, subsidiaries and affiliates and the termination of that relationship;
b. any and all claims relating to, or arising from, my right to purchase, or actual purchase of any shares of stock or other equity interests of the Company or any of its direct or indirect parents, subsidiaries and affiliates, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state law, and securities fraud under any state or federal law;
c. any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;
d. any and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Equal Pay Act; the Fair Labor Standards Act; the Fair Credit Reporting Act; the Age Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Employee Retirement Income Security Act of 1974; the Worker Adjustment and Retraining Notification Act; the Family and Medical Leave Act; the Sarbanes-Oxley Act of 2002; and the California Fair Employment and Housing Act, California Government Code Section 12940, et seq.;
e. any and all claims for violation of the federal or any state constitution;
f. any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
g. any and all claims arising out of the wage and hour and wage payments laws and regulations of the state or states in which I have provided service to the Company or any of its direct or indirect parents, subsidiaries and affiliates; and
h. any and all claims for attorneys’ fees and costs.
This Release does not release claims that cannot be released as a matter of law, including, but not limited to, my right to report possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002, or any other whistleblower protection provisions of state or federal law or regulation and any right to receive an award for information provided thereunder, my right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company or any Releasee for discrimination (with the understanding that my release of claims herein bars me from recovering such monetary relief from the Company or any Releasee for any alleged discriminatory treatment), claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law, claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of COBRA, claims for indemnity under the bylaws of the Company, as provided for by state law or under any applicable indemnification agreement or insurance policy with respect to my liability as an employee, director or officer of the Company or any of its direct or indirect parents, subsidiaries and affiliates, and claims to any benefit entitlements vested as the Termination Date pursuant to written terms of any employee benefit plan of the Company or its affiliates. This Release further does not release claims for the Company’s breach of its executory obligations under this Release or Schedule B of the Agreement. This Release does not prevent me from engaging in any protected conduct described in Section 8(f) of the Agreement. The claims described in this paragraph are referred to as the “Retained Claims.”
I ACKNOWLEDGE THAT I AM FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
I, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS I MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
3. Acknowledgment of Waiver of Claims under ADEA. I understand and acknowledge that I am waiving and releasing any rights I may have under the Age Discrimination in Employment Act of 1967 (“ADEA”), and that this Release is knowing and voluntary. I understand and agree that this Release does not apply to any rights or claims that may arise under the ADEA after the date I sign this Release. I understand and acknowledge that the consideration given for this Release is in addition to anything of value to which I was already entitled. I further understand and acknowledge that I have been advised by in writing that: (a) I have the right to and should consult with an attorney prior to executing this Release; (b) I have [twenty-one (21)] days within which to consider this Release, and the Parties agree that such time period to review this Release shall not be extended upon any material or immaterial changes to this Release; (c) I have seven (7) calendar days following my execution of this Release to revoke this Release pursuant to written notice to the [Title] of the Company; (d) this Release shall not be effective until after the revocation period has expired; and (e) nothing in this Release prevents or precludes me from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties, or costs for doing so, unless specifically authorized by federal law. In the event I sign this Release and return it to the Company in less than the [twenty-one (21)] day period identified above, I hereby acknowledge that I have freely and voluntarily chosen to waive the time period allotted for considering this Release. This Release will become effective at 12:01 a.m. on the eighth day after I sign this Release (the “Release Effective Date”). I further understand that I will not be given the post-termination benefits described in Section 1 above unless the Release Effective Date occurs on or before the date that is sixty (60) days following my Termination Date.
4.Terminations; Resignations. I hereby confirm my termination and resignation from all offices, directorships, and other employment positions, if any, then held with the Company and any Related Company, and I shall take all actions reasonably requested by the Company to effectuate the foregoing
5. Representations. I represent and warrant that:
a. I have surrendered to the Company all Company property as required under Section 8(d) of the Agreement;
b. I am not owed wages, commissions, bonuses or other compensation, other than the Accrued Obligations and as set forth in this Release; and
c. During the course of my Employment, I did not sustain any injuries for which I might be entitled to compensation pursuant to worker’s compensation law or I have disclosed any injuries of which I am currently, reasonably aware for which I might be entitled to compensation pursuant to worker’s compensation law.
6. Conditions on Receiving Post-Termination Benefits. I hereby expressly reaffirm my continuing obligations under the Agreement, including, without limitation, Section 8 of the Agreement and Schedule C to the Agreement, if applicable, I agree that any obligation of the Company to pay any post-termination benefits to me shall be subject to my continued compliance with the terms and conditions of the Agreement, including Section 8 of the Agreement and Schedule C to the Agreement, if applicable. If I breach or threaten to breach the Agreement (including, without limitation, Section 8 of this Agreement or Schedule C to the Agreement, if applicable), the Company will be entitled to cease the payment of any severance or benefits to me under the Agreement (other than the Accrued Obligations).
7.No Assignment. I hereby represent and warrant to the Releasees that there has been no assignment or other transfer of any interest in any claim that I may have against the Releasees.
8.Dispute Resolution. To ensure the timely and economical resolution of disputes that arise in connection with this Agreement, the Parties agree that, except as excluded herein, any and all controversies,
claims and disputes arising out of or relating to this Release or the Agreement will be governed by Section 9 of the Agreement.
9.Miscellaneous.
a.Beneficiaries and Assignment. This Release will be binding upon and inure to the benefit of the Parties, and their heirs and successors and permitted assigns. This Release will automatically inure to the benefit of and be enforceable by the Company and any of the Related Companies, and any successors and assigns. I understand I will have no right to assign my rights, benefits, duties, obligations or other interests in this Release as they are personal to me, other than by will or the laws of descent and distribution. Any attempted assignment by me of my rights, benefits, duties, obligations or other interests in this Release in contravention of this Release will be null and void.
b.Entire Understanding. I am not relying upon any representations outside of the Agreement or this Release in deciding to enter into this Release. This Release and the Agreement (inclusive of Schedules thereto) represent the entire understanding between the Company and me with respect to all matters herein.
c.Amendment and Waiver. This Release will not be modified or amended except by another instrument in writing executed by the Parties. Failure of either party at any time to require performance by the other of any provision of this Release will in no way affect the rights of the waiving party to enforce the same thereafter, nor will the waiver by either party of any breach of any provision of this Release be held to be a waiver of any succeeding breach of any provision or a waiver of the provision itself.
d.Applicable Law. This Release will constitute a contract under the internal laws of the State of [_____],1 and will be governed and construed in accordance with the laws of said state as to both interpretation and performance.
e.Severability. My obligations under this Agreement are each separate and severable obligations. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the Company and I consent to the adjudicator’s enforcement of the restrictions to such lesser extent as would make the restriction reasonable and enforceable and/or agree to the reformation of the restriction (for purposes of that jurisdiction only) where such is necessary to make it enforceable to protect the legitimate business interests of the Company. If, despite the foregoing, any provision in this Agreement is adjudicated to be void, illegal or unenforceable, then it will be severed, and all other provisions contained in this Agreement will remain in full force and effect as if the offending provision was never contained in this Agreement.
f.Counterparts / Electronic Signature. This Release may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civ. Code §1633.1, et seq.) or other applicable law) or other transmission method, and any counterpart so delivered shall be deemed to have been duly signed and delivered and be valid and effective for all purposes.
10.Voluntary Execution of Agreement. I understand and agree that I executed this Release voluntarily, without any duress or undue influence on the part or behalf of the Company or any third party, with the full
1 DRAFTING NOTE: Insert governing law of Agreement.
intent of releasing all of my claims against the Company and any of the other Releasees. I acknowledge that: (a) I have read this Release; (b) I have been represented in the preparation, negotiation, and execution of this Release by legal counsel of my own choice or have elected not to retain legal counsel; (c) I understand the terms and consequences of this Release and of the releases it contains; and (d) I am fully aware of the legal and binding effect of this Release.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
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EXHIBIT ONLY – DO NOT SIGN AT THIS TIME
________________________________
Employee’s name
Date: ___________________________
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COMPANY
Callaway Golf Company, a Delaware corporation
By: _____________________________________
Signer’s Name & Title
Date: ______________________________
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EX-10.4
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a4104leposkymarkf-employme.htm
EX-10.4
Document
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is entered into as of May 7, 2026 (the “Effective Date”) by and between Callaway Golf Company, a Delaware corporation, (the “Company”) and me, Mark F. Leposky, each a “Party” and collectively the “Parties.” References to this “Agreement” shall include all of the Schedules attached hereto.
1.Term. My employment hereunder (“Employment”) shall be for a term (the “Term”) commencing on the Effective Date and continuing indefinitely until terminated in accordance with Section 4 of this Agreement. The date my Employment with the Company ends is referred to as my “Termination Date” irrespective of which Party terminated or why termination occurred. Notwithstanding anything to the contrary in the foregoing, my Employment hereunder is terminable at will by the Company or by me at any time (for any reason or for no reason), subject to the provisions of Section 4 hereof.
2.Position and Duties.
a.During the Term, I will serve in the position designated on Schedule A or in such other position or positions as the Board of Directors of the Company (the “Board”) or its designated representative specifies from time-to-time and shall have the duties, responsibilities and obligations customarily assigned to individuals serving in such position or positions as defined by the Board or its designated representative.
I agree to devote all of my working time and efforts to the performance of my duties for the Company and to faithfully and diligently serve the Company in accordance with this Agreement and the guidelines, policies and procedures of the Company, including its Employee Handbook and Code of Conduct, as such shall be adopted, modified or otherwise established by the Company from time-to-time. This does not prohibit me from managing personal investments or involvement in volunteer charitable or community activities provided that they do not violate the terms of this Agreement or interfere or conflict with the satisfactory performance of my Employment duties in the judgment of the Board or its designated representative. By signing this Agreement, I represent to the Company that (i) I am not currently engaged in any outside business activities for remuneration (whether cash or otherwise), and (ii) providing material assistance to any business, or otherwise pursuing any business opportunity, in each case under this clause (ii) that would create a conflict of interest.
b.I can and will perform all of my Employment duties without the use or disclosure of any trade secrets or otherwise protected information of a third party that I am not authorized by that third party to use for the Company’s benefit. I am subject to no legal obligations, contracts, or other obligations that would prevent me from performing the duties of my position with the Company, nor am I in violation of any such legal obligations.
3.Compensation, Benefits and Expenses. I agree to the compensation and benefits described in Schedule A as full and adequate compensation for my services. I understand that my compensation and benefits are provided subject to the Company policies and procedures generally applicable to all Company employees with adjustments as determined by the Board or its designated representative.
4.Termination and Separation Payment Rights. This Agreement and my Employment under it may be terminated as set forth in this Section 4. Upon any termination of my Employment, I shall be entitled to receive my “Accrued Obligations.” For purposes of this Agreement, “Accrued Obligations” as used throughout this Agreement is defined as (A) earned but unpaid base salary, (B) accrued but unused payments or benefits to which I am entitled under Company benefit plans, including the Company’s retirement, insurance and other benefit and compensation plans or programs then in effect, in accordance with the terms of such plans and programs, and (C) accrued but unused paid time off (“PTO”), if applicable. The Accrued
Obligations described in the preceding sentence shall be paid within thirty (30) days after the Termination Date (or such earlier date as may be required by applicable law).
a.Death or Permanent Disability.
i. My Employment will terminate upon my death. If terminated due to death, then my estate will be paid all of my Accrued Obligations through the Termination Date and I will be eligible to receive the “Death Benefit” described in Schedule B, subject to the requirements set forth therein.
ii. Either the Company or I may terminate my employment following my “Permanent Disability” (as defined in Schedule B). If my Employment is terminated as a result of my Permanent Disability, then I will be paid all of my Accrued Obligations through the Termination Date. In addition, in the event of my termination of Employment as a result of my Permanent Disability, I will be eligible to receive the “Permanent Disability Benefit” described in Schedule B, subject to the requirements set forth therein.
b.Substantial Cause. The Company may terminate my Employment for Substantial Cause. If the Company terminates my Employment for Substantial Cause, then I will be paid my Accrued Obligations through the Termination Date and shall not be entitled to any additional severance or other compensation, including any unvested Long-Term Incentive Awards (unless otherwise provided in the applicable Long-Term Incentive Award agreement). The occurrence of any of the events described in parts (i) – (v) below, as reasonably determined by the Board or its designated representative, shall be “Substantial Cause”:
i.my material breach of any provisions of this Agreement or any other material, written contract with the Company or any Related Company (as defined in Schedule C) or under any code of conduct of the Company or any Related Company);
ii.willful and continued failure by me to substantially perform my duties under this Agreement as determined by the Company’s Chief Executive Officer or by the Board, including failure to cooperate with any internal investigation authorized by the Board or its designated representative or an investigation by regulatory or law enforcement authorities;
iii.intentional misconduct by me (including, but not limited to, misappropriation, fraud, including misconduct related to accounting and financial statements, embezzlement or use or possession of illegal drugs during work) and/or any other action that is damaging or detrimental in a significant manner to the Company or any of the Related Companies;
iv.my conviction (or plea of no contest) for any felony (including, but not limited to, any felony involving fraud, moral turpitude, embezzlement or theft in connection with my duties or in the course of my Employment with the Company), or any comparable offense in any applicable foreign jurisdiction; or
v. my use of alcohol or illicit drugs in a manner that has or would reasonably be expected to have a detrimental effect on my performance, my duties to the Company, or the reputation of the Company or any Related Company.
c.Good Reason. I may terminate my Employment under this Agreement for “Good Reason.” If I terminate my Employment for Good Reason, then I will be paid my Accrued Obligations through the Termination Date, and I will be eligible to receive the benefits provided for in Schedule B for a “Severance Eligible Termination,” subject to the requirements set forth therein.
For purposes of this Agreement, “Good Reason” means the occurrence of any of the following without my prior consent:
i.at any time during the Term (including at any time following the date of a Change in Control), a material breach of this Agreement by the Company; or
ii.at any time during the Term (including at any time following the date of a Change in Control), any material diminishment in the title, position, duties, responsibilities or status that I had with the Company, as a publicly traded entity, immediately prior to such diminishment; provided, however, that prior to a Change in Control, a change in your title or reporting position alone shall not constitute Good Reason; or
iii.at any time during the Term (including at any time following the date of a Change in Control), any requirement that I relocate or any assignment to me of duties that would make it unreasonably difficult for me to maintain the principal residence I had immediately prior to such requirement or assignment, and the parties agree that an increase in my one-way commuting distance by more than thirty-five (35) miles prior to such relocation or assignment as a result of any such relocation or assignment shall be automatically considered unreasonably difficult for purposes of this clause (iii); or
iv.at any time during the Term, a material reduction in my Base Salary or Target Incentive (as defined in Schedule B), or a material reduction in my year-over-year Target LTI Opportunity; or
v.during the twenty-four (24) month period following the date of a Change in Control, any reduction, limitation or failure to pay or provide any of the compensation, reimbursable expenses, Long-Term Incentive Awards (as defined in Schedule B), incentive programs, or other benefits or perquisites provided to me under the terms of this Agreement or any other agreement or understanding between the Company and me, or pursuant to the Company's written policies and past practices.
In order for “Good Reason” for my resignation to exist, the foregoing events must remain uncured for more than thirty (30) days despite my written notice to the Company advising it of such occurrence within ninety (90) days of my becoming aware of the occurrence. I will officially resign no later than ninety (90) days following the earlier of the end of the thirty (30) day cure period or the date the Company provides me with written notice of its intent not to cure the event giving rise to Good Reason. If I do not give the Company written notice of the occurrence of an event listed in this Section within ninety (90) days of my becoming aware of it, or such event is cured by the Company within thirty (30) days after written notification from me regarding such occurrence, I will not have “Good Reason” to terminate my Employment as a result of such occurrence.
d.Resignation without Good Reason. If I terminate my Employment without Good Reason, then I will be paid my Accrued Obligations through the Termination Date and shall not be entitled to any additional severance or other compensation, including any unvested Long-Term Incentive Awards.
e.Termination without Substantial Cause. The Company may terminate my Employment at its discretion at any time without Substantial Cause. If the Company terminates my Employment without Substantial Cause, then I will be paid my Accrued Obligations through the Termination Date, and I will be eligible to receive the benefits provided for in Schedule B for a “Severance Eligible Termination,” subject to the requirements set forth therein.
f.Deemed Resignations. Upon termination of my Employment for any reason, unless otherwise specified in a written agreement between the Company and me, I shall be deemed to have
resigned from all offices, directorships, and other employment positions, if any, then held with the Company and any Related Company, and I shall take all actions reasonably requested by the Company to effectuate the foregoing.
5.Clawbacks and Forfeitures.
a.Notwithstanding anything in this Agreement or any other agreement between me and the Company or any Related Company, I agree that I will be subject to, and any compensation paid to me under this Agreement or otherwise will be subject to, reduction, cancellation, forfeiture and/or recoupment under any clawback policy adopted by the Company from time to time that is, by its terms, applicable to me, including the Policy for Recovery of Erroneously Awarded Compensation adopted by the Company effective October 2, 2023 (the “Clawback Policy”), and any other policy adopted by the Company pursuant to the requirements under Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Rule 10D of the Securities Exchange Act of 1934, as amended, and any rules adopted by the national securities exchange on which the Company’s securities are listed, as such policy(ies) may be amended from time to time. Upon the request of the Company, I also agree without further consideration to execute an amendment evidencing the incorporation of the policies into this Agreement and/or my acknowledgment of the application of such policies to my compensation.
b.If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of my intentional misconduct or gross negligence, with respect to any financial reporting requirement under the United States securities laws, then, if requested to do so by the Board of Directors or the Compensation Committee of the Company, in addition to any rights the Company may have under Section 5(a) above, I will forfeit and reimburse the Company for all of the following: (i) any incentive or incentive compensation paid to me based upon such erroneously stated financial information, (ii) any incentive, incentive compensation or equity compensation I received during the twelve (12) month period following the earlier of the first public issuance or filing with the Securities and Exchange Commission of the financial document embodying the financial reporting requirement, (iii) any profits realized by me personally from the sale of Company securities during that same twelve (12) month period, (iv) if my Employment is terminated or has been terminated, my right to receive Special Severance or Change in Control Special Severance, if applicable, and (v) if I am terminated or have been terminated, any unvested Long-Term Incentive Awards.
c.I understand that the Company’s exercise of the recoupment and forfeiture provisions in this Section 5 will not constitute a breach of the terms of this Agreement by the Company and will not otherwise give me the right to terminate my Employment for Good Reason.
6.Code Section 409A Compliance.
a. I understand and agree that this Agreement has been drafted with the intention to comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and its applicable regulations (“Section 409A”). The Company is hereby advising me to obtain independent advice regarding the tax consequences of any compensation payable under this Agreement and I represent I have done so or have determined not to do so in my discretion despite the Company’s advisement. I acknowledge and agree that the Company will not be liable for and will bear no responsibility for any penalties that may be assessed against me for violation of Section 409A.
b. Notwithstanding any other provision of this Agreement, no severance pay or other benefits payable under this Agreement, that when considered together with any other severance payments or separation benefits, are considered deferred compensation under Section 409A or are
otherwise intended to be exempt from Section 409A pursuant to Section 1.409A-1(b)(9) of the Treasury Regulations issued under Section 409A and are payable upon my termination of employment, will be paid or otherwise provided until I have had a “separation from service” within the meaning of Section 409A. Each payment and benefit payable under this Agreement is intended to constitute a separate payment, and the right to a series of installment payments will be treated as a right to a series of separate payments (including, for the avoidance of doubt, the base salary and annual incentive components of the severance or termination benefits payable in installments pursuant to Schedule B, and each such component shall be treated as a separate payment). To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A.
c. If at the time of my termination of Employment with the Company I am a “specified employee” as defined in Section 409A, then, to the extent required under Section 409A, the Company will not commence payment of any compensation or benefits payable upon my “separation of service” until the date that is six (6) months and one (1) day following my Termination Date (or the earliest date as is permitted under Section 409A). In no event will any payment or benefit under this Agreement that is subject to Section 409A be subject to offset by any other amount unless otherwise permitted by Section 409A.
d. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A.
d. If and to the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Section 409A, (i) all such expenses or other reimbursements hereunder will be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred, (ii) any right to reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit, (iii) the amount of expenses eligible for reimbursement, or the in-kind benefits provided, during any taxable year will not affect the expenses eligible for reimbursement, or the in-kind benefits to be provided, in any other taxable year, and (iv) any reimbursement will be for expenses incurred during the period of time specified in this Agreement and if no time period is specified, will be for expenses incurred during my lifetime.
7.Code Section 280G.
a. Best Pay Provision. In the event that any payment or benefit received or to be received by me pursuant to the terms of any plan, arrangement or agreement (including any payment or benefit received in connection with a change in ownership or control or the termination of my Employment) (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part) to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, then the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (after subtracting the amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (after subtracting the net amount of federal, state and local income taxes on such Total Payments and
the amount of Excise Tax to which I would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). Except to the extent that an alternative reduction order would result in a greater economic benefit to me on an after-tax basis, the parties intend that the Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to me that are exempt from Section 409A of the Code, (B) reduction of any other cash payments or benefits otherwise payable to me that are exempt from Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A of the Code, (C) reduction of any other payments or benefits otherwise payable to me on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting and payment with respect to any equity award that is exempt from Section 409A of the Code, and (D) reduction of any payments attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A of the Code; provided, in case of clauses (A), (B) and (C), that reduction of any payments or benefits attributable to the acceleration of vesting of Company equity awards shall be first applied to equity awards with later vesting dates; provided, further, that, notwithstanding the foregoing, any such reduction shall be undertaken in a manner that complies with and does not result in the imposition of additional taxes on me under Section 409A of the Code. The foregoing reductions shall be made in a manner that results in the maximum economic benefit to me on an after-tax basis and, to the extent economically equivalent payments or benefits are subject to reduction, in a pro rata manner.
b. Determinations. All determinations regarding the application of this Section 7 shall be made by an independent accounting firm or consulting group with nationally recognized standing and substantial expertise and experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax retained by the Company prior to the date of the applicable change in ownership or control (the “280G Firm”). For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, and, in calculating the Excise Tax, (i) no portion of the Total Payments shall be taken into account which (A) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (B) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, (ii) no portion of the Total Payments the receipt or enjoyment of which I shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the 280G Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. All determinations related to the calculations to be performed pursuant to this Section 7 shall be done by the 280G Firm. The 280G Firm will be directed to submit its determination and detailed supporting calculations to both the Company and me within fifteen (15) days after notification from either the Company or me that I may receive payments which may be “parachute payments.” The Company and I will each provide the 280G Firm access to and copies of any books, records, and documents as may be reasonably requested by the 280G Firm and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Agreement. The fees and expenses of the 280G Firm for its services in connection with the determinations and calculations contemplated by this Agreement will be borne solely by the Company.
8.Restrictive Covenants.
a.Confidential Information.
i.The Company will entrust me with Confidential Information related to my fiduciary position of trust and confidence with the Company based on the commitments I am making in this Agreement and would not do so without the promises I am making in this Agreement. “Confidential Information” means information, or a compilation of information, in any form (tangible or intangible), related to the Company’s or any of the Related Companies’ business and of value to it that I first acquire or gain access to as a consequence of my Employment with the Company if the Company has not made it public or authorized public disclosure of it and it is not readily available through lawful and proper means to the public or others in the industry who have no obligation to keep it confidential. Confidential Information includes, but is not limited to: the Company’s business plans, financial information and analysis, customer and prospective customer lists, employee lists, marketing plans and strategies, research and development data, buying practices, vendor lists, internal business methods, techniques, technical data, know-how, innovations, computer programs, un-patented inventions, trade secrets, and information about the business affairs of third parties (including, but not limited to, customers, licensors and suppliers) that such third parties provide to the Company in confidence. Due to its special value and utility as a compilation, a confidential compilation (like a customer list) will remain protected as Confidential Information even if some items of information within the list are in the public domain. Private disclosure of otherwise Confidential Information to parties the Company is doing business with for business purposes will not cause the information to lose its protected status under this Agreement.
ii.During my Employment and for so long thereafter as the information qualifies as “Confidential Information” under this Agreement, I will not engage in any use or disclosure of Confidential Information that is not authorized by the Company and undertaken for the benefit of the Company, except as may be permitted under Section 8(f) below. These obligations do not prohibit my use of generally available knowledge, skill and education that is not specific to the Company or its business relationships but is instead knowledge generic to the industry or my profession. I will comply with all Company policies and directives concerning my use, storage, and transfer of Confidential Information. Unless prohibited by law from doing so, I will notify the Company as quickly as possible after being served with a subpoena, order, or other legal mandate requiring the production of Confidential Information so that the Company can take reasonable steps to protect its interests.
b.Intellectual Property.
i.I understand that I am being employed and paid to use all of my abilities, including my creative and inventive skills, for the benefit of the Company. Accordingly I agree that any inventions, improvements, discoveries, ideas, concepts, trademarks, service marks, trade names, copyright eligible works of authorship and mask works (hereinafter referred to collectively as “Intellectual Property”) that I develop, discover, conceive or create while employed with the Company or providing services to a Related Company, alone or with others, during regular working hours or outside of them, that either: (A) relates to the business of the Company or the Related Company or their actual or demonstrably anticipated research and development, (B) is developed or discovered with the assistance of Confidential Information, tools, equipment, personnel or other resources of the Company or a Related Company, or (C) is suggested by, related to, or result from any work performed by me for the Company or a Related Company; will be deemed “Work Product.” I hereby fully and finally assign to the Company all right, title and interest in and to all of my Work Product. My Work Product will be the property of the Company from the date of conception, irrespective of when, how, or if it is ever reduced to tangible form or practice. My assignment of Work Product shall include assignment to the Related Company where the interests of a Related Company are involved as determined by the Company. Notwithstanding the forgoing, nothing in this Agreement creates or requires assignment of an invention that cannot be assigned in an employment agreement under controlling law where controlling state law has such a limitation.
ii.All original works of authorship made by me, solely or jointly with others, while employed with the Company that relate to the Company’s line of business will be considered something done within the scope of my Employment and thus “work made for hire” under the Copyright Act of 1976 (17 U.S.C. § 101) and all comparable laws throughout the world. All ownership and copyrights in this “work for hire” will belong exclusively to the Company or its designee, and to the extent any rights therein are not automatically conveyed to the Company they will be deemed assigned to the Company. In this respect, the covered original works of authorship are also Work Product. Original works of authorship (“Work Products”) covered by the foregoing are understood to include, without limitation, all writings, source code, computer programs, algorithms, photos, images, drawings, branding concepts, and other work product of any nature whatsoever consisting of copyrightable subject matter. I waive all claims I may now or hereafter have to rights of paternity, integrity, disclosure and withdrawal, artists’ rights, and any other rights that may be known as “moral rights” with respect to the above-referenced work made for hire, Work Product, and all derivative works thereof.
iii. I will, during and after my Employment, execute all documents, and will assist the Company in every reasonable and proper way, to obtain and enforce patents, trademark registrations, service mark registrations and copyrights for the Intellectual Property in any and all countries. The Company will pay the expenses for obtaining and enforcing these patents, trademark registrations, service mark registrations, and copyrights. If I retain ownership of any item of Intellectual Property or copyright eligible work that is incorporated into a Company product or service (an item of “Incorporated IP”), I grant to the Company, a non-exclusive, fully paid (royalty-free) and irrevocable worldwide license to incorporate into its products and services, reproduce, make derivative works of, sell, and otherwise use the Incorporated IP.
iv. I acknowledge notice that if I reside and work for the Company in California then my assignment of inventions that qualify as Work Product under Sections 8(b)(i) – (iii) above shall not include inventions which cannot be assigned under California Labor Code §2870; and I acknowledge notice that California Labor Code §2870 provides that: “(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer.”
c.Non-Disparagement. I will not during my Employment with the Company, any applicable Special Severance Period or Change in Control Special Severance Period, and for the twelve (12) months following the later of (i) the date of my termination of Employment or (ii) the last day of any Special Severance Period or Change in Control Severance Period (regardless of whether I receive any severance benefits in a lump sum), in any way undertake to disparage, demean, or cast in a false, misleading or negative light, the Company, its products, services, officers, directors, employees, agents, affiliates, vendors, or customers, or their successors, or in any other way publish negative statements about them or exhibit an attitude of hostility toward them; provided, however, that nothing herein will prohibit me from providing truthful testimony in a legal proceeding or prohibit conduct that is protected conduct under Section 8(f) below.
d.Use and Return of Company Property. All records related to the Company’s business activities and business development efforts made by me in the course of my Employment (such as contact lists, prospect lists, calendars and notes) wherever stored (in email, text messages, cell phones, computers or otherwise) are the property of the Company. I am not authorized to access and use the Company’s computers, email, or related computer systems to pursue competitive business interests. I will preserve records of Company customers, prospects, suppliers, and other business relationships, and will not knowingly use these records to harm the Company’s business interests. Upon termination of my Employment, I will return all such records, and any copies (tangible and intangible) to the Company. Upon request, I will provide the Company reasonable means to access and verify that no Confidential Information or other Company property has been retained by me on personal computers, cell phones, email or cloud storage accounts to the extent such devices or accounts were used by me in connection with my Employment or the Company’s business, or in any other place that is subject to my ownership or control. The Company shall have the right, at its option, to require me to vacate my office or otherwise remain off the Company’s premises and to cease any and all activities on the Company’s behalf without such action constituting a termination of my Employment or a breach of this Agreement.
e.Conflicting Activities. I agree that I am subject to the prohibitions of Schedule C (as defined therein) on the terms and conditions set forth therein. The Company is herein advising me to consult with an attorney before signing this Agreement and becoming bound by the obligations herein, including in Schedule C.
f.Protected Conduct. I understand that nothing in this Agreement prohibits me from communicating directly with, cooperating with, or providing information to, or receiving financial awards from, any federal, state or local government agency (including, without limitation, the Securities and Exchange Commission or the National Labor Relations Board), without notifying or seeking approval from Company before doing so, nor does it prohibit discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that I have reason to believe is unlawful, or exercising any rights I may have under Section 7 of the National Labor Relations Act. I acknowledge notice that pursuant to the Defend Trade Secrets Act (“DTSA”): (i) no individual (consultant, contractor or employee) will be held criminally or civilly liable under Federal or State trade secret law for the disclosure of a trade secret that: (A) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and made solely for the purpose of reporting or investigating a suspected violation of law; or, (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and (ii) an individual who pursues a lawsuit for
retaliation by an employer for reporting a suspected violation of the law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order. The foregoing will not be construed to invite, permit, or limit liability for otherwise illegal activity such a breaking and entering, illegal computer access (hacking) or theft of the Company property.
9.Dispute Resolution. To ensure the timely and economical resolution of disputes that arise in connection with this Agreement, the Parties agree that, except as excluded herein and as set forth in Section 8(f), any and all controversies, claims and disputes arising out of or relating to this Agreement, including without limitation any alleged violation of its terms, or otherwise arising out of or relating to my Employment relationship with the Company or any of the Related Companies, shall be resolved solely and exclusively by final and binding arbitration, before a single neutral arbitrator, held in San Diego County, California through JAMS in conformity with California law and the then-existing JAMS employment arbitration rules, which can be found at https://www.jamsadr.com/rules-employment-arbitration/, or which will be provided upon reasonable request to the Company’s human resources department. The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. shall govern the interpretation and enforcement of this arbitration clause. All remedies available from a court of competent jurisdiction shall be available in the arbitration; provided, however, that either Party may request temporary or preliminary injunctive relief, to the extent permitted by applicable law, from a court of competent jurisdiction if such relief is not available or not available in a timely fashion through arbitration. The arbitrator shall: (a) provide adequate discovery for the resolution of the dispute; and (b) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award. For any claim arising under this Agreement, the arbitrator may award the prevailing Party reasonable attorneys’ fees, cost, and expert fees, if any, and, to the extent provided by applicable law may award reasonable attorneys’ fees, costs, and expert fees on any other claim. The Parties understand that by agreement to arbitrate any claim pursuant to this Section 9, they will not have the right to have any claim subject to arbitration decided by a jury or a court but shall instead have any claim decided through arbitration. Each Party waives any constitutional or other right to bring claims covered by this Agreement other than in their individual capacities. Except as may be prohibited by applicable law, the foregoing waiver includes the ability to assert claims as a plaintiff or class member in any purported class or collective action or representative proceeding. Neither Party may bring any arbitration on a class, collective or representative basis. In the event that any arbitration to which I am a party qualifies as a “Mass Arbitration” under the terms of the then current JAMS Mass Arbitration Procedures and Guidelines, the current version of which can be found at https://www.jamsadr.com/mass-arbitration-procedures, the then current JAMS Mass Arbitration Procedures and Guidelines shall be applied. I further agree that any dispute brought by me against the Company’s parents, subsidiaries, affiliates, officers, directors, or employees, arising out of or relating to my Employment by the Company, shall be subject to arbitration under this Agreement, and such person or entity may enforce this provision as intended third party beneficiaries. Nothing herein shall limit my ability to pursue claims for workers compensation or unemployment benefits or pursue other claims which by law cannot be subject to mandatory arbitration.
10.Miscellaneous.
a.Taxes. I acknowledge that I am responsible for all taxes owed by me related to my compensation and benefits. The amounts payable pursuant to this Agreement and the attached Schedules are subject to all applicable federal and state tax and required withholding.
b.Beneficiaries and Assignment. This Agreement will be binding upon and inure to the benefit of the Parties, and their heirs and successors. This Agreement will automatically inure to the benefit of and be enforceable by the Company and any of the Related Companies, and any successors and assigns. If I become employed with a Related Company without signing a new agreement, the Related Company will step into Company’s position under this Agreement and will be entitled to the same protections and enforcement rights as the Company. I agree to the assignment of this Agreement and all rights and obligations hereunder, including, but not limited to, an assignment in
connection with any merger, sale, transfer or acquisition consummated by the Company or any of its subsidiaries, affiliates or divisions, or relating to all or part of its assets or the assets of its subsidiaries, affiliates or divisions. The Company will cause any such successor to the Company to assume the Company’s obligations under this Agreement, and a failure by the Company to obtain the assumption of this Agreement by any successor to the Company of all or substantially all of the Company's assets or business shall be deemed a material breach of this Agreement. I understand I will have no right to assign my rights, benefits, duties, obligations or other interests in this Agreement as they are personal to me, other than by will or the laws of descent and distribution. Any attempted assignment by me of my rights, benefits, duties, obligations or other interests in this Agreement in violation of this Agreement will be null and void.
c.Entire Understanding. The Parties are relying upon no representations outside of this Agreement in deciding to enter into this Agreement. This Agreement (inclusive of Schedules) is the entire understanding between the Company and me with respect to all matters herein; provided, however, that this Agreement shall be construed to supplement and not eliminate, supersede or replace my current “Employee Invention and Confidentiality Agreement” or any other agreement containing any restriction on my use of the Confidential Information or trade secrets of the Company and its Related Companies, which prior agreements shall be construed to compliment and not conflict with this Agreement with the understanding that if any irreconcilable conflict between the agreements should arise, this Agreement will control (unless any such prior agreement imposes a post-termination noncompetition or non-solicitation covenant, in which case this Agreement shall supersede any such covenant if I reside in the State of California at the time I execute this Agreement or if, any time during the term of my Employment, I am a resident of California). Further still, to the extent I have entered into any other agreements as part of the sale or acquisition of a business or business assets that have restrictive covenants, such agreements and the restrictive covenants therein will survive and stand independent from and unaffected by this Agreement. As of the Effective Date, except as otherwise explicitly provided herein, this Agreement replaces and supersedes any and all prior understandings or agreements between the Company or any Related Company and me regarding my Employment, including without limitation, any employment agreement or offer letter between the Company or any Related Company and me or any of its affiliates in effect prior to the Effective Date.
d.Amendment and Waiver. This Agreement will not be modified or amended except by another instrument in writing executed by the Parties. Failure of either party at any time to require performance by the other of any provision of this Agreement will in no way affect the rights of the waiving party to enforce the same thereafter, nor will the waiver by either party of any breach of any provision of this Agreement be held to be a waiver of any succeeding breach of any provision or a waiver of the provision itself.
e.Notices. Any notice, request, demand, or other communication required or permitted hereunder, shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by email upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt, to me at the most recent address listed in the Company’s personnel records, and to the Company at the address below:
Callaway Golf Company
2180 Rutherford Road
Carlsbad, California 92008
Attn: General Counsel
f.Applicable Law. This Agreement will constitute a contract under the internal laws of the State of California and will be governed and construed in accordance with the laws of said state as to both interpretation and performance.
g.Severability. My obligations under this Agreement are each separate and severable obligations. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the Company and I consent to the adjudicator’s enforcement of the restrictions to such lesser extent as would make the restriction reasonable and enforceable and/or agree to the reformation of the restriction (for purposes of that jurisdiction only) where such is necessary to make it enforceable to protect the legitimate business interests of the Company. If, despite the foregoing, any provision in this Agreement is adjudicated to be void, illegal or unenforceable, then it will be severed, and all other provisions contained in this Agreement will remain in full force and effect as if the offending provision was never contained in this Agreement.
h.Survival. Unless otherwise expressly agreed by the Company and me in writing, my obligations under this Agreement will, in accordance with their terms, be unaffected by any change in position, title, duties, or other terms and conditions of my Employment. My post-Employment obligations will survive the termination of my Employment and/or this Agreement. The existence of a claim by me against the Company, whether predicated on this Agreement or otherwise, will not relieve me of my obligation to comply with the restrictions on my conduct provided for in this Agreement or make them unenforceable.
i.Counterparts / Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civ. Code §1633.1, et seq.) or other applicable law) or other transmission method, and any counterpart so delivered shall be deemed to have been duly signed and delivered and be valid and effective for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
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/s/ Mark F. Leposky________________________
Mark F. Leposky
Date: 5/5/26___________________________
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COMPANY
Callaway Golf Company, a Delaware corporation
By: /s/ Brian P. Lynch_______________________
Brian P. Lynch, Executive Vice President,
Chief Financial Officer, Chief Legal Officer
Date: 5/7/26______________________________
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SCHEDULE A
Compensation and Benefits
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule A:
A-1.Compensation, Benefits and Expenses.
a.Position. Executive Vice President, Chief Supply Chain Officer, reporting to Chief Executive Officer.
b.Base Salary. $570,000.00 per year. In accordance with the Company’s usual payroll practices, the Company will pay me an annual base salary at the rate described herein (prorated for any partial years of Employment), payable in substantially equal installments on regularly scheduled Company pay dates. My base salary will be reviewed on an annual basis by the Board or its designated representative. The Company reserves the right to increase my base salary pursuant to the Company’s employee compensation practices and policies in effect from time to time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my base salary rate (as the same may be increased during my employment) without my prior written consent.
c.Annual Incentive. I am eligible for a discretionary annual incentive payment based upon participation in the Company’s applicable incentive program as it may or may not be in effect from time-to-time. My annual target incentive percentage is 75% of the actual annual base salary paid to me during the applicable calendar year for which such annual incentive is earned (the “Target Incentive”). Any annual incentive payment earned pursuant to an applicable incentive plan will be paid in accordance with the Company’s then current payroll practices in the first quarter of the year following the end of the Company’s fiscal year to which the annual incentive relates, provided that, except as provided in Schedule B, the annual incentive will not be earned and payable unless I am actively employed in good standing, and have not given, or received, notice of termination of Employment as of the date the annual incentive is paid. The Company reserves the right to increase my Target Incentive pursuant to the Company’s employee compensation practices and policies in effect from time-to-time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my Target Incentive (as the same may be increased during my employment) without my prior written consent.
d.Long-Term Incentives. Subject to approval of the Board or its designated representative, the Company will provide me an opportunity to participate in the Company’s long-term incentive programs under which I may be eligible in accordance with the terms of such programs as in effect from time to time and as may be amended in the sole and absolute discretion of the Company (the “Long-Term Incentive Plans”). My participation in the Long-Term Incentive Plans will be governed by the terms of the Long-Term Incentive Plans, including the notice and grant agreement specific to each Long-Term Incentive Plan award I am awarded. My annual target opportunity under the Company’s Long-Term Incentive Plans (my “Target LTI Opportunity”) will be established annually by the Board or its designated representative. The Company reserves the right to increase my Target LTI Opportunity pursuant to the Company’s Long-Term Incentive Plans in effect from time to time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my Target LTI Opportunity (as the same may be increased during my employment) without my prior written consent.
e.Benefit Plans. The Company will offer me participation in the various employee benefit plans it sponsors such as health and welfare coverage, qualified retirement plans and other insured benefits applicable to my position and subject to my eligibility to participate under the terms of such plans.
f.Paid Time Off/Sick Time. I am eligible to accrue PTO up to the maximum accruals set by the Company in accordance with the terms and conditions of the Company’s PTO Program and as set forth in the most recent “Executive Benefits Summary” provided to me by the Company under separate cover, as may be amended from time-to-time in the Company’s sole and absolute discretion. Accrued PTO may be taken any time during the year subject to prior approval by the Company. I am eligible for paid sick leave days (“Sick Leave”) in accordance with applicable state or local law.
g.Other Perquisites. The Company may provide other perquisites to me from time-to-time as determined by the Company, including those described in the most recent Executive Benefits Summary.
h.Business Expenses. The Company shall reimburse me for the reasonable, customary and necessary expenses I incur in the performance of my duties. My reimbursement for such business expenses is contingent on my compliance with the Company’s expense reimbursement policies as may be in effect from time to time.
SCHEDULE B
Termination Benefits
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule B:
B-1. Severance Benefits.
a.Severance Eligible Termination. If the Company terminates my Employment without Substantial Cause, or if I voluntarily terminate my Employment with the Company for Good Reason, then it will be deemed a “Severance Eligible Termination.” Subject to Sections B-4 and B-6 below, if the termination of my Employment with the Company constitutes a Severance Eligible Termination, in addition to the Accrued Obligations, I will be provided the following “Special Severance”:
i.A one-time, lump-sum payment based on the annual incentive payment I would have received in the then-current year, based on the Company’s actual performance as measured against the requirements of the annual incentive plan, pro-rated to my Termination Date (the “Pro-Rata Incentive Plan Payment”);
ii.The vesting of my unvested long-term incentive compensation awards (e.g., restricted stock units, performance shares, stock appreciation rights, stock options, and other long-term equity-based incentive awards) (“Long-Term Incentive Awards”) that would have vested had I continued to be employed pursuant to this Agreement for a period of twelve (12) months from the Termination Date; provided that any unvested Long-Term Incentive Awards that are subject to performance-based vesting will vest in accordance with this Section B-1(a)(ii) only if, and to the degree that, the performance goals are satisfied in accordance with the terms of the applicable Long-Term Incentive Plan and award agreement thereunder. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-1(a)(ii));
iii.A severance payment equal to the sum of (A) 1.0 time my most recent annual base salary, plus (B) 1.0 time my annual target incentive for the year of termination (calculated for this purpose by multiplying my annual target incentive percentage specified in Schedule A by my most recent annual base salary), payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of twelve (12) months from the Termination Date (the “Special Severance Installments” and such period, the “Special Severance Period”);
iv.for a period of twelve (12) months (or, if earlier, (A) the date on which the applicable continuation period under COBRA and/or Cal-COBRA expires or (B) the date I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment) (such period, the “Assistance Period”), if I and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date elect to have COBRA and/or Cal-COBRA coverage and are eligible for such coverage, the Company shall pay or reimburse me, at its election, on a monthly basis, for an amount equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for myself and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date; provided, however, that, if the Company determines, in its sole discretion, that the Company cannot provide healthcare continuation benefits under this sentence during the Assistance Period without potentially violating or causing the Company to incur financial costs or penalties under applicable law
(including, without limitation, Section 2716 of the Public Health Service Act), the Company shall, in lieu thereof, pay me a monthly taxable cash payment during the Assistance Period (or any remaining portion thereof) equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents (the “Taxable Assistance Period Payments”). In lieu of providing healthcare continuation benefits during the Assistance Period pursuant to the preceding sentence, the Company may elect, at the time of my Severance Eligible Termination, to instead provide me with a one-time, taxable lump-sum payment intended to assist with the post-termination healthcare costs for me and my dependents (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) twelve (12) months (the “Lump Sum Assistance Payment”). If I am paid a Lump Sum Assistance Payment, I will receive the Lump Sum Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Lump Sum Assistance Payment for any purpose in my discretion. I will notify the Company immediately if I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment during the Assistance Period;
v.Continuation of any financial, tax and estate planning services (on the then-existing terms and conditions) through the period during which I am receiving the Special Severance Installments; and
vi.Up to one year of outplacement services through a professional outplacement firm of the Company’s choosing.
The Lump Sum Assistance Payment (if applicable), as well as the vesting of any time-based Long-Term Incentive Awards described in Section B-1(a)(ii), will be made as soon as administratively practicable following the date my Release (as defined below) becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date; the Pro-Rata Incentive Plan Payment, as well as the vesting of any performance-based Long-Term Incentive Awards described above, will be made at such time and in such manner as such performance based payments are regularly made by the Company after the completion of the relevant performance period and the evaluation of whether, and the degree to which, the performance criteria have been met (but in all events, the Pro-Rata Incentive Plan Payment described in Section B-1(a)(i) will be paid no later than March 15 of the calendar year following the year in which my Termination Date occurs and the settlement of such performance-based Long-Term Incentive Awards will occur no later than March 15 of the calendar year following the year in which such awards are no longer subject to a “substantial risk of forfeiture” (as defined in Section 409A)); and the Special Severance Installments and Taxable Assistance Period Payments (if applicable) will commence as soon as administratively practicable following the date the Release becomes effective and irrevocable, but in no event later than the first regularly scheduled payroll date thereafter, and the Special Severance Installments and Taxable Assistance Period Payments (if applicable) shall be paid over time as described above following the effective date of the Release. None of the payments described in this Section B-1 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the effective date of the Release will accrue and be paid as soon as administratively practicable in accordance with the preceding sentence. Except as otherwise provided in this Agreement, I am not eligible for any other payments in connection with my termination of Employment as a result of a Severance Eligible Termination.
a.Severance Eligible Termination Within Twenty-Four Months Following a Change in Control. Subject to Sections B-4 and B-6 below, in the event my Employment is terminated as a result of a
Severance Eligible Termination within the twenty-four (24) month period following a Change in Control (as defined below), in addition to the Accrued Obligations, I will be provided the following “Change in Control Special Severance”:
i.The Special Severance amounts in Section B-1(a) above; provided, however, the Special Severance Installments will consist of the sum of (A) 2.0 (instead of 1.0) times the sum of my most recent annual base salary plus 2.0 (instead of 1.0) times my annual incentive target for the year of termination (calculated for this purpose by multiplying my annual target incentive percentage specified in Schedule A by my most recent annual base salary), payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of twenty-four (24) months from the Termination Date (such period, the “Change in Control Special Severance Period”); provided, further, that the Assistance Period (or the number of months to be covered by any Lump Sum Assistance Payment) will be equal to a period of twenty-four (24) months from the Termination Date. All other Special Severance elements will be payable in accordance with Section B-1(a) above; and
ii.In lieu of the Special Severance in Section B-1(a)(ii) above, (A) the vesting of all of my unvested time-based Long-Term Incentive Awards that vest solely based on my continued employment or service (including awards for which the performance objectives have been satisfied but which remain subject to time-based vesting following the end of the applicable performance period) shall be accelerated effective as of the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date, and (ii) the vesting of all of my unvested Long-Term Incentive Awards that are subject to performance-based vesting (e.g., performance stock units) will vest at the target performance level effective as of the date my Release becomes effective and irrevocable (unless the level of performance was determined at the time of the Change in Control at a higher achievement level in accordance with the applicable award agreement, in which case such higher achievement level shall apply), but in no event later than seventy (70) days after the Termination Date. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-1(b)(ii); and
iii.In addition to the Special Severance in Section B-1(a)(iv) above, I will receive a one-time, taxable lump-sum payment intended to assist with a portion of the post-termination healthcare costs for me and my dependents not covered under Section B-1(a)(iv) above (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) six (6) months (the “Change in Control Supplemental Lump Sum Assistance Payment”). If I am paid a Change in Control Supplemental Lump Sum Assistance Payment, I will receive the Change in Control Supplemental Lump Sum Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Change in Control Supplemental Lump Sum Assistance Payment for any purpose in my discretion. The Change in Control Supplemental Lump Sum Assistance Payment will be made as soon as administratively practicable following the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date.
b.Other Benefits. I agree that payment of Special Severance or Change in Control Special Severance pursuant to this Section B-1 shall be in lieu of, and not in addition to, any other payment that I might otherwise be entitled to, including, but not limited to, payments under any state or federal
Worker Adjustment and Retraining Notification Act, any similar statute, or as provided for under common law.
B-2. Permanent Disability Benefits.
a.Subject to Sections B-4 and B-6 below, in the event my Employment is terminated as a result of my “Permanent Disability” (as defined below), in addition to the Accrued Obligations, I will be provided the following “Permanent Disability Benefit”:
i.A payment equal to 0.500 times my most recent annual base salary, payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of six (6) months from the Termination Date (the “Disability Installments”);
ii.A Pro-Rata Incentive Plan Payment;
iii.The vesting of my unvested Long-Term Incentive Awards that would have vested had I continued to be employed pursuant to this Agreement for period of twelve (12) months from the Termination Date; provided that any unvested Long-Term Incentive Awards that are subject to performance-based vesting will vest in accordance with this Section B-2(a)(iii) only if, and to the degree that, the performance goals are satisfied in accordance with the terms of the applicable Long-Term Incentive Plan and award agreement thereunder. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-2(a)(iii)); and
iv.for a period of twelve (12) months (or, if earlier, (A) the date on which the applicable continuation period under COBRA and/or Cal-COBRA expires or (B) the date I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment) (such period, the “Disability Assistance Period”), if I and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date elect to have COBRA and/or Cal-COBRA coverage and are eligible for such coverage, the Company shall pay or reimburse me, at its election, on a monthly basis, for an amount equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for myself and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date; provided, however, that, if the Company determines, in its sole discretion, that the Company cannot provide healthcare continuation benefits under this sentence during the Disability Assistance Period without potentially violating or causing the Company to incur financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company shall, in lieu thereof, pay me a monthly taxable cash payment during the Disability Assistance Period (or any remaining portion thereof) equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents (the “Taxable Disability Assistance Period Payments”). In lieu of providing healthcare continuation benefits during the Disability Assistance Period pursuant to the preceding sentence, the Company may elect, at the time of my termination of Employment as a result of my Permanent Disability, to instead provide me with a one-time, taxable lump-sum payment intended to assist with the post-termination healthcare costs for me and my dependents (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) twelve (12) (the “Lump Sum
Disability Assistance Payment”). If I am paid a Lump Sum Disability Assistance Payment, I will receive the Lump Sum Disability Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Lump Sum Disability Assistance Payment for any purpose in my discretion. I will notify the Company immediately if I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment during the Disability Assistance Period.
The Lump Sum Disability Assistance Payment (if applicable), as well as the vesting of any time-based Long-Term Incentive Awards described in Section B-2(a)(iii), will be made as soon as administratively practicable following the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date; the Pro-Rata Incentive Plan Payment, as well as the vesting of any performance-based Long-Term Incentive Awards described above, will be made at such time and in such manner as such performance based payments are regularly made by the Company after the completion of the relevant performance period and the evaluation of whether, and the degree to which, the performance criteria have been met (but in all events, the Pro-Rata Incentive Plan Payment described in Section B-2(a)(ii) will be paid no later than March 15 of the calendar year following the year in which my Termination Date occurs and the settlement of such performance-based Long-Term Incentive Awards will occur no later than March 15 of the calendar year following the year in which such awards are no longer subject to a “substantial risk of forfeiture” (as defined in Section 409A)); and the Disability Installments and Taxable Disability Assistance Period Payments (if applicable) will commence as soon as administratively practicable following the date the Release becomes effective and irrevocable, but in no event later than the first regularly scheduled payroll date thereafter, and the Disability Installments and Taxable Disability Assistance Period Payments (if applicable) shall be paid over time as described above following the effective date of the Release. The Permanent Disability benefits provided pursuant to this Section B-2 will be coordinated with other applicable disability insurance as required by the applicable policies. None of the payments described in this Section B-2 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the effective date of the Release will accrue and be paid as soon as administratively practicable in accordance with the preceding sentence. Except as otherwise provided in this Agreement, I will not be entitled to any payments or benefits under Section B-1 as a result of such termination of my Employment by the Company following my Permanent Disability, which shall be considered a termination for Substantial Cause.
For purposes of this Agreement, “Permanent Disability” shall mean my failure to perform or being unable to perform all or substantially all of my duties under this Agreement for a continuous period of six (6) months or more on account of any physical or mental disability, as reasonably determined by the Company or as reflected in the opinion of a qualified physician selected by the Company, provided that, to the extent required under Section 409A, such disability or impairment also qualifies as a “disability” for purposes of Section 409A. The existence of my Permanent Disability shall be determined by the Company in good faith.
B-3. Death Benefits. In the event of my death, in addition to the Accrued Obligations, all my outstanding unvested time-based Long-Term Incentive Awards will immediately vest and be settled as soon as administratively practicable but in no event later than seventy (70) days after the date of my death. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-3). The foregoing benefit is referred to as the “Death Benefit.”
B-4. Requirement for a Release. The Company’s obligation to provide me the severance or any other benefits payable under Sections B-1 and B-2, other than my Accrued Obligations through the Termination
Date, will be conditioned on my (or my representatives if I am unable to sign due to my Permanent Disability) signing a release agreement in the form attached to the Agreement as Schedule D within the time period set forth therein) that, among other things, (a) contains an effective release of any and all claims in favor of the Company and any of the Related Companies, and (b) secures my commitment to abide by all post-Employment obligations applicable to me under this Agreement (referred to hereafter as my “Release”). If, for any reason, my Release does not become effective and irrevocable within sixty (60) days following my Termination Date, I will not be entitled to any payments or benefits pursuant to Sections B-1 and B-2 and will forfeit all rights thereto; however, the Accrued Obligations through the Termination Date will be paid. Additionally, none of the payments or benefits pursuant to Sections B-1 and B-2 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the Release effective date will accrue and be paid as provided in this Schedule B.
B-5. Other. Except for the Accrued Obligations and the amounts specifically provided pursuant to this Schedule B, I shall not be entitled to any further compensation, incentive, damages, restitution, relocation benefits, or other severance benefits upon my termination of Employment. The amounts payable to me pursuant to this Schedule B shall not be treated as damages, but as compensation to which I may be entitled by reason of my termination of Employment under the applicable circumstances. The Company shall not be entitled to set off against the amounts payable to me pursuant to this Schedule B any amounts earned by me in other employment after termination of my Employment with the Company, or any amounts which might have been earned by me in other employment had I sought such other employment. The provisions of this Schedule B shall not limit my rights under or pursuant to any other agreement or understanding with the Company regarding any pension, insurance or other employee benefit plan of the Company to which I am entitled pursuant to the terms of such plan.
B-6. Conditions on Receiving Post-Termination Benefits. My right to all payments or benefits under this Schedule B shall in all events be subject to Sections 6 (Code Section 409A) and 7 (Code Section 280G) of the Agreement. In addition, notwithstanding anything else to the contrary, it is expressly understood that any obligation of the Company to pay any post-termination benefits pursuant to this Schedule B shall be subject to my continued compliance with the terms and conditions of this Agreement, including Section 8 of the Agreement and Schedule C, if applicable. If I breach or threaten to breach this Agreement (including, without limitation, Section 8 of this Agreement or Schedule C, if applicable), the Company will be entitled to cease the payment of any severance or benefits under this Schedule B (other than the Accrued Obligations).
B-7. Definition of Change in Control. For purposes of this Agreement “Change in Control” is defined as a circumstance where:
a.any person, entity or group, within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) but excluding the Company and its subsidiaries and any employee benefit or stock ownership plan of the Company or its subsidiaries and also excluding an underwriter or underwriting syndicate that has acquired the Company’s securities solely in connection with a public offering thereof (such person, entity or group being referred to herein as a “Person”) becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either the then outstanding shares of the common stock of the Company or the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors; or
b.individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board, provided that any individual who becomes a director after the Effective Date whose election, or nomination for election by the Company’s shareholders, is approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered to be a member of the Incumbent Board unless that individual was nominated or elected by any Person having the power to exercise, through beneficial ownership, voting agreement and/or proxy, 20% or more of either the outstanding
shares of the common stock of the Company or the combined voting power of the Company’s then outstanding voting securities entitled to vote generally in the election of directors, in which case that individual shall not be considered to be a member of the Incumbent Board unless such individual’s election or nomination for election by the Company’s shareholders is approved by a vote of at least two-thirds of the directors then comprising the Incumbent Board; or
c.consummation by the Company of the sale or other disposition of all or substantially all of the Company’s assets or a reorganization or merger or consolidation of the Company with any other Person, other than (A) a reorganization or merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto (or, in the case of a reorganization or merger or consolidation that is preceded or accomplished by an acquisition or series of related acquisitions by any Person, by tender or exchange offer or otherwise, of voting securities representing 50% or more of the combined voting power of all securities of the Company, immediately prior to such acquisition or the first acquisition in such series of acquisitions) continuing to represent, either by remaining outstanding or by being converted into voting securities of another entity, more than 50% of the combined voting power of the voting securities of the Company or such other entity outstanding immediately after such reorganization or merger or consolidation (or series of related transactions involving such a reorganization or merger or consolidation), or (B) a reorganization or merger or consolidation effected to implement a recapitalization or reincorporation of the Company (or similar transaction) that does not result in a material change in beneficial ownership of the voting securities of the Company or its successor.
Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to any amount hereunder that provides for the deferral of compensation that is subject to Section 409A, to the extent required to avoid the imposition of additional taxes under Section 409A, the transaction or event shall only constitute a Change in Control for purposes of the payment timing of such amount if such transaction also constitutes a “change in control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5).
SCHEDULE C – CALIFORNIA
Conflicting Activities
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule C:
C-1. Agreement Not to Engage in Conflicting Activities. I acknowledge that in reliance upon my covenants in this Agreement, the Company will provide me with one or more of the following: Confidential Information related to my position and duties; trade secrets; authorization to communicate and develop goodwill with customers, suppliers, employees, and other key business relationships of the Company and its Related Companies; and/or, specialized training related to the business of the Company and its Related Companies. I agree that the foregoing would give me an unfair competitive advantage if my activities were not restricted as provided for in this Agreement during my Employment. In order to avoid activities of this nature and the irreparable harm they cause, I agree that, during my Employment, without the consent of the Company, (i) I will not work for or become associated with any outside business activities for remuneration (whether cash or otherwise), whether or not for a business that would constitute a Competitor for purposes of this Schedule C, and (ii) I will not invest in, provide material assistance to any business, or otherwise pursue any business opportunity, in each case under this clause (ii) that would create a conflict of interest. Also, during my Employment, I will not divert business opportunities away from the Company or the Related Companies for personal gain or interfere with the business relationship between the Company and its employees, customers, suppliers, distributors, or vendors, by soliciting or otherwise encouraging or inducing them to cease or reduce doing business with the Company or the Related Companies except where such conduct is undertaken in the course of my duties for the Company and for the benefit of the Company or the Related Companies.
C-2. Definitions.
a.“Competitor” refers to any business (irrespective of how it is organized) that is engaged in the same line of business as the Company or one so similar in nature that it would displace the business opportunities for the Company’s products and/or services in any markets where the Company does business or has demonstrable plans to do business and with respect to which I was provided access to Confidential Information in the course of Employment. The forgoing will include the products and/or services of a Related Company that I have material involvement with or with respect to which I am provided Confidential Information in the course of my Employment.
b.“Related Companies” means, collectively, the Company’s subsidiaries, affiliates or any other company in which Company has an investment and/or other ownership interest.
c.It is understood that to “solicit” or “soliciting” and their derivations mean to interact with another person or entity with the purpose or foreseeable result being to cause, motivate or induce the person or entity to engage in some responsive action, irrespective of who first initiated contact. It will not include general advertising (such as “help wanted” ads) that are not targeted at the Company’s employees or customers.
C-3. Exception. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prohibits me from owning a non-controlling interest consisting or two percent (2%) or less of any class of securities in any publicly traded company or passive investments through an independently controlled fund such as a mutual fund, provided that I am not a controlling person of, or a member of a group that controls, such business, and further provided that I do not otherwise participate in any conduct prohibited under this Agreement.
C-4. Irreparable Harm. A violation of this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C) by me would cause not only actual and compensable damage, but also
irreparable harm and continuing injury to the Company, for which there would not be an adequate remedy at law. Accordingly, if I breach or threaten to breach this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C), the Company will be entitled to temporary and permanent injunctive relief in addition to, and not in lieu of, any and all other legal remedies to which it would otherwise be entitled. In addition to, and not in lieu of injunctive relief to prevent further violations, the Company will have the right to, in addition to any other legal remedies and damages available, to cease the payment of any severance or benefits under Schedule B hereof. The Company will be deemed the prevailing party for all purposes if any relief is granted to it, irrespective of whether some relief requested by the Company is also denied.
C-5. Survival. My obligations in this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C) shall survive the termination of the Agreement and my Employment under it. My obligations under this Agreement are independent and severable obligations; and, the existence of any claim or cause of action against Company by me, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Company of my obligations under this Agreement. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the adjudicator will enforce the restriction to such lesser extent as would make it reasonable and enforceable and/or reform the restriction to the extent necessary to make it enforceable to protect Company’s legitimate business interests. A presumption provided for in this Agreement may only be overcome by presentation of clear and convincing evidence from the party opposing application of the presumption and shall not apply to the extent that its application would make the restriction, clause or other provision at issue unenforceable. If, despite the foregoing, any provision of this Agreement is adjudicated to be void, illegal or unenforceable, all other provisions will remain in full force and effect, as if the void, illegal, or unenforceable provision is not part of the Agreement except where this Agreement expressly provides otherwise.
SCHEDULE D
Form of Release
This Release of Claims (“Release”) is made pursuant to the Employment Agreement (the “Agreement”) to which this Release is attached as Schedule D and will be effective as of the Release Effective Date (as defined below), by and between the undersigned, _____________________ [NAME], and Callaway Golf Company, a Delaware corporation, (the “Company”), collectively the “Parties.” This Release is entered into in light of the fact that my employment with the Company will terminate effective [_____] and I am eligible to receive the [Special Severance][Change in Control Special Severance][Permanent Disability Benefit] described in Schedule B to the Agreement, subject to the occurrence of the Release Effective Date within the time period specified in Section 3 below and my continued compliance with the terms of this Release and the Agreement. Capitalized terms used herein without definition shall have the meanings given to such terms in the Agreement.
1. Consideration. In consideration for the payment of the [Special Severance][Change in Control Special Severance][Permanent Disability Benefit] described in Schedule B to the Agreement, Employee agrees to the terms and provisions set forth in this Release. In addition, to the extent not already paid, and subject to the terms and conditions of the Agreement, the Company shall pay or provide to me the Accrued Obligations described in the Agreement, subject to and in accordance with the terms thereof.
2. Release. I hereby agree that, other than with respect to the Retained Claims (as defined below), the consideration described in Section 1 represents settlement in full of all outstanding obligations owed to me by the Company, any of its direct or indirect parents, subsidiaries or affiliates, and any of their respective current and former officers, directors, equity holders, managers, employees, agents, investors, attorneys, shareholders, administrators, affiliates, benefit plans, plan administrators, insurers, trustees, divisions, and subsidiaries and predecessor and successor corporations and assigns (collectively, the “Releasees”) related to my employment or service with the Company or any of its direct or indirect parents, subsidiaries or affiliates or termination therefrom. I, on my own behalf and on behalf of any of my affiliates, family members, executors, agents, heirs and assigns, other than with respect to the Retained Claims, hereby and forever release the Releasees from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that I may possess based on any omissions, acts, facts, or damages that have occurred up until and including the date I sign this Release against any of the Releasees arising directly or indirectly out of, relating to or in any other way involving in any manner whatsoever my employment or service with the Company or any of its direct or indirect parents, subsidiaries and affiliates or termination therefrom, including, without limitation:
a.any and all claims relating to or arising from my employment or service relationship with the Company or any of its direct or indirect parents, subsidiaries and affiliates and the termination of that relationship;
b. any and all claims relating to, or arising from, my right to purchase, or actual purchase of any shares of stock or other equity interests of the Company or any of its direct or indirect parents, subsidiaries and affiliates, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state law, and securities fraud under any state or federal law;
c. any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;
d. any and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Equal Pay Act; the Fair Labor Standards Act; the Fair Credit Reporting Act; the Age Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Employee Retirement Income Security Act of 1974; the Worker Adjustment and Retraining Notification Act; the Family and Medical Leave Act; the Sarbanes-Oxley Act of 2002; and the California Fair Employment and Housing Act, California Government Code Section 12940, et seq.;
e. any and all claims for violation of the federal or any state constitution;
f. any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
g. any and all claims arising out of the wage and hour and wage payments laws and regulations of the state or states in which I have provided service to the Company or any of its direct or indirect parents, subsidiaries and affiliates; and
h. any and all claims for attorneys’ fees and costs.
This Release does not release claims that cannot be released as a matter of law, including, but not limited to, my right to report possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002, or any other whistleblower protection provisions of state or federal law or regulation and any right to receive an award for information provided thereunder, my right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company or any Releasee for discrimination (with the understanding that my release of claims herein bars me from recovering such monetary relief from the Company or any Releasee for any alleged discriminatory treatment), claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law, claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of COBRA, claims for indemnity under the bylaws of the Company, as provided for by state law or under any applicable indemnification agreement or insurance policy with respect to my liability as an employee, director or officer of the Company or any of its direct or indirect parents, subsidiaries and affiliates, and claims to any benefit entitlements vested as the Termination Date pursuant to written terms of any employee benefit plan of the Company or its affiliates. This Release further does not release claims for the Company’s breach of its executory obligations under this Release or Schedule B of the Agreement. This Release does not prevent me from engaging in any protected conduct described in Section 8(f) of the Agreement. The claims described in this paragraph are referred to as the “Retained Claims.”
I ACKNOWLEDGE THAT I AM FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
I, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS I MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
3. Acknowledgment of Waiver of Claims under ADEA. I understand and acknowledge that I am waiving and releasing any rights I may have under the Age Discrimination in Employment Act of 1967 (“ADEA”), and that this Release is knowing and voluntary. I understand and agree that this Release does not apply to any rights or claims that may arise under the ADEA after the date I sign this Release. I understand and acknowledge that the consideration given for this Release is in addition to anything of value to which I was already entitled. I further understand and acknowledge that I have been advised by in writing that: (a) I have the right to and should consult with an attorney prior to executing this Release; (b) I have [twenty-one (21)] days within which to consider this Release, and the Parties agree that such time period to review this Release shall not be extended upon any material or immaterial changes to this Release; (c) I have seven (7) calendar days following my execution of this Release to revoke this Release pursuant to written notice to the [Title] of the Company; (d) this Release shall not be effective until after the revocation period has expired; and (e) nothing in this Release prevents or precludes me from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties, or costs for doing so, unless specifically authorized by federal law. In the event I sign this Release and return it to the Company in less than the [twenty-one (21)] day period identified above, I hereby acknowledge that I have freely and voluntarily chosen to waive the time period allotted for considering this Release. This Release will become effective at 12:01 a.m. on the eighth day after I sign this Release (the “Release Effective Date”). I further understand that I will not be given the post-termination benefits described in Section 1 above unless the Release Effective Date occurs on or before the date that is sixty (60) days following my Termination Date.
4.Terminations; Resignations. I hereby confirm my termination and resignation from all offices, directorships, and other employment positions, if any, then held with the Company and any Related Company, and I shall take all actions reasonably requested by the Company to effectuate the foregoing
5. Representations. I represent and warrant that:
a. I have surrendered to the Company all Company property as required under Section 8(d) of the Agreement;
b. I am not owed wages, commissions, bonuses or other compensation, other than the Accrued Obligations and as set forth in this Release; and
c. During the course of my Employment, I did not sustain any injuries for which I might be entitled to compensation pursuant to worker’s compensation law or I have disclosed any injuries of which I am currently, reasonably aware for which I might be entitled to compensation pursuant to worker’s compensation law.
6. Conditions on Receiving Post-Termination Benefits. I hereby expressly reaffirm my continuing obligations under the Agreement, including, without limitation, Section 8 of the Agreement and Schedule C to the Agreement, if applicable, I agree that any obligation of the Company to pay any post-termination benefits to me shall be subject to my continued compliance with the terms and conditions of the Agreement, including Section 8 of the Agreement and Schedule C to the Agreement, if applicable. If I breach or threaten to breach the Agreement (including, without limitation, Section 8 of this Agreement or Schedule C to the Agreement, if applicable), the Company will be entitled to cease the payment of any severance or benefits to me under the Agreement (other than the Accrued Obligations).
7.No Assignment. I hereby represent and warrant to the Releasees that there has been no assignment or other transfer of any interest in any claim that I may have against the Releasees.
8.Dispute Resolution. To ensure the timely and economical resolution of disputes that arise in connection with this Agreement, the Parties agree that, except as excluded herein, any and all controversies,
claims and disputes arising out of or relating to this Release or the Agreement will be governed by Section 9 of the Agreement.
9.Miscellaneous.
a.Beneficiaries and Assignment. This Release will be binding upon and inure to the benefit of the Parties, and their heirs and successors and permitted assigns. This Release will automatically inure to the benefit of and be enforceable by the Company and any of the Related Companies, and any successors and assigns. I understand I will have no right to assign my rights, benefits, duties, obligations or other interests in this Release as they are personal to me, other than by will or the laws of descent and distribution. Any attempted assignment by me of my rights, benefits, duties, obligations or other interests in this Release in contravention of this Release will be null and void.
b.Entire Understanding. I am not relying upon any representations outside of the Agreement or this Release in deciding to enter into this Release. This Release and the Agreement (inclusive of Schedules thereto) represent the entire understanding between the Company and me with respect to all matters herein.
c.Amendment and Waiver. This Release will not be modified or amended except by another instrument in writing executed by the Parties. Failure of either party at any time to require performance by the other of any provision of this Release will in no way affect the rights of the waiving party to enforce the same thereafter, nor will the waiver by either party of any breach of any provision of this Release be held to be a waiver of any succeeding breach of any provision or a waiver of the provision itself.
d.Applicable Law. This Release will constitute a contract under the internal laws of the State of [_____],1 and will be governed and construed in accordance with the laws of said state as to both interpretation and performance.
e.Severability. My obligations under this Agreement are each separate and severable obligations. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the Company and I consent to the adjudicator’s enforcement of the restrictions to such lesser extent as would make the restriction reasonable and enforceable and/or agree to the reformation of the restriction (for purposes of that jurisdiction only) where such is necessary to make it enforceable to protect the legitimate business interests of the Company. If, despite the foregoing, any provision in this Agreement is adjudicated to be void, illegal or unenforceable, then it will be severed, and all other provisions contained in this Agreement will remain in full force and effect as if the offending provision was never contained in this Agreement.
f.Counterparts / Electronic Signature. This Release may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civ. Code §1633.1, et seq.) or other applicable law) or other transmission method, and any counterpart so delivered shall be deemed to have been duly signed and delivered and be valid and effective for all purposes.
10.Voluntary Execution of Agreement. I understand and agree that I executed this Release voluntarily, without any duress or undue influence on the part or behalf of the Company or any third party, with the full
1 DRAFTING NOTE: Insert governing law of Agreement.
intent of releasing all of my claims against the Company and any of the other Releasees. I acknowledge that: (a) I have read this Release; (b) I have been represented in the preparation, negotiation, and execution of this Release by legal counsel of my own choice or have elected not to retain legal counsel; (c) I understand the terms and consequences of this Release and of the releases it contains; and (d) I am fully aware of the legal and binding effect of this Release.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
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EXHIBIT ONLY – DO NOT SIGN AT THIS TIME
________________________________
Employee’s name
Date: ___________________________
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COMPANY
Callaway Golf Company, a Delaware corporation
By: _____________________________________
Signer’s Name & Title
Date: ______________________________
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EX-10.5
6
a5105reedtimothy-employmen.htm
EX-10.5
Document
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is entered into as of May 7, 2026 (the “Effective Date”) by and between Callaway Golf Company, a Delaware corporation, (the “Company”) and me, Timothy Reed, each a “Party” and collectively the “Parties.” References to this “Agreement” shall include all of the Schedules attached hereto.
1.Term. My employment hereunder (“Employment”) shall be for a term (the “Term”) commencing on the Effective Date and continuing indefinitely until terminated in accordance with Section 4 of this Agreement. The date my Employment with the Company ends is referred to as my “Termination Date” irrespective of which Party terminated or why termination occurred. Notwithstanding anything to the contrary in the foregoing, my Employment hereunder is terminable at will by the Company or by me at any time (for any reason or for no reason), subject to the provisions of Section 4 hereof.
2.Position and Duties.
a.During the Term, I will serve in the position designated on Schedule A or in such other position or positions as the Board of Directors of the Company (the “Board”) or its designated representative specifies from time-to-time and shall have the duties, responsibilities and obligations customarily assigned to individuals serving in such position or positions as defined by the Board or its designated representative.
I agree to devote all of my working time and efforts to the performance of my duties for the Company and to faithfully and diligently serve the Company in accordance with this Agreement and the guidelines, policies and procedures of the Company, including its Employee Handbook and Code of Conduct, as such shall be adopted, modified or otherwise established by the Company from time-to-time. This does not prohibit me from managing personal investments or involvement in volunteer charitable or community activities provided that they do not violate the terms of this Agreement or interfere or conflict with the satisfactory performance of my Employment duties in the judgment of the Board or its designated representative. By signing this Agreement, I represent to the Company that (i) I am not currently engaged in any outside business activities for remuneration (whether cash or otherwise), and (ii) providing material assistance to any business, or otherwise pursuing any business opportunity, in each case under this clause (ii) that would create a conflict of interest.
b.I can and will perform all of my Employment duties without the use or disclosure of any trade secrets or otherwise protected information of a third party that I am not authorized by that third party to use for the Company’s benefit. I am subject to no legal obligations, contracts, or other obligations that would prevent me from performing the duties of my position with the Company, nor am I in violation of any such legal obligations.
3.Compensation, Benefits and Expenses. I agree to the compensation and benefits described in Schedule A as full and adequate compensation for my services. I understand that my compensation and benefits are provided subject to the Company policies and procedures generally applicable to all Company employees with adjustments as determined by the Board or its designated representative.
4.Termination and Separation Payment Rights. This Agreement and my Employment under it may be terminated as set forth in this Section 4. Upon any termination of my Employment, I shall be entitled to receive my “Accrued Obligations.” For purposes of this Agreement, “Accrued Obligations” as used throughout this Agreement is defined as (A) earned but unpaid base salary, (B) accrued but unused payments or benefits to which I am entitled under Company benefit plans, including the Company’s retirement, insurance and other benefit and compensation plans or programs then in effect, in accordance with the terms of such plans and programs, and (C) accrued but unused paid time off (“PTO”), if applicable. The Accrued
Obligations described in the preceding sentence shall be paid within thirty (30) days after the Termination Date (or such earlier date as may be required by applicable law).
a.Death or Permanent Disability.
i. My Employment will terminate upon my death. If terminated due to death, then my estate will be paid all of my Accrued Obligations through the Termination Date and I will be eligible to receive the “Death Benefit” described in Schedule B, subject to the requirements set forth therein.
ii. Either the Company or I may terminate my employment following my “Permanent Disability” (as defined in Schedule B). If my Employment is terminated as a result of my Permanent Disability, then I will be paid all of my Accrued Obligations through the Termination Date. In addition, in the event of my termination of Employment as a result of my Permanent Disability, I will be eligible to receive the “Permanent Disability Benefit” described in Schedule B, subject to the requirements set forth therein.
b.Substantial Cause. The Company may terminate my Employment for Substantial Cause. If the Company terminates my Employment for Substantial Cause, then I will be paid my Accrued Obligations through the Termination Date and shall not be entitled to any additional severance or other compensation, including any unvested Long-Term Incentive Awards (unless otherwise provided in the applicable Long-Term Incentive Award agreement). The occurrence of any of the events described in parts (i) – (v) below, as reasonably determined by the Board or its designated representative, shall be “Substantial Cause”:
i.my material breach of any provisions of this Agreement or any other material, written contract with the Company or any Related Company (as defined in Schedule C) or under any code of conduct of the Company or any Related Company);
ii.willful and continued failure by me to substantially perform my duties under this Agreement as determined by the Company’s Chief Executive Officer or by the Board, including failure to cooperate with any internal investigation authorized by the Board or its designated representative or an investigation by regulatory or law enforcement authorities;
iii.intentional misconduct by me (including, but not limited to, misappropriation, fraud, including misconduct related to accounting and financial statements, embezzlement or use or possession of illegal drugs during work) and/or any other action that is damaging or detrimental in a significant manner to the Company or any of the Related Companies;
iv.my conviction (or plea of no contest) for any felony (including, but not limited to, any felony involving fraud, moral turpitude, embezzlement or theft in connection with my duties or in the course of my Employment with the Company), or any comparable offense in any applicable foreign jurisdiction; or
v. my use of alcohol or illicit drugs in a manner that has or would reasonably be expected to have a detrimental effect on my performance, my duties to the Company, or the reputation of the Company or any Related Company.
c.Good Reason. I may terminate my Employment under this Agreement for “Good Reason.” If I terminate my Employment for Good Reason, then I will be paid my Accrued Obligations through the Termination Date, and I will be eligible to receive the benefits provided for in Schedule B for a “Severance Eligible Termination,” subject to the requirements set forth therein.
For purposes of this Agreement, “Good Reason” means the occurrence of any of the following without my prior consent:
i.at any time during the Term (including at any time following the date of a Change in Control), a material breach of this Agreement by the Company; or
ii.at any time during the Term (including at any time following the date of a Change in Control), any material diminishment in the title, position, duties, responsibilities or status that I had with the Company, as a publicly traded entity, immediately prior to such diminishment; provided, however, that prior to a Change in Control, a change in your title or reporting position alone shall not constitute Good Reason; or
iii.at any time during the Term (including at any time following the date of a Change in Control), any requirement that I relocate or any assignment to me of duties that would make it unreasonably difficult for me to maintain the principal residence I had immediately prior to such requirement or assignment, and the parties agree that an increase in my one-way commuting distance by more than thirty-five (35) miles prior to such relocation or assignment as a result of any such relocation or assignment shall be automatically considered unreasonably difficult for purposes of this clause (iii); or
iv.at any time during the Term, a material reduction in my Base Salary or Target Incentive (as defined in Schedule B), or a material reduction in my year-over-year Target LTI Opportunity; or
v.during the twenty-four (24) month period following the date of a Change in Control, any reduction, limitation or failure to pay or provide any of the compensation, reimbursable expenses, Long-Term Incentive Awards (as defined in Schedule B), incentive programs, or other benefits or perquisites provided to me under the terms of this Agreement or any other agreement or understanding between the Company and me, or pursuant to the Company's written policies and past practices.
In order for “Good Reason” for my resignation to exist, the foregoing events must remain uncured for more than thirty (30) days despite my written notice to the Company advising it of such occurrence within ninety (90) days of my becoming aware of the occurrence. I will officially resign no later than ninety (90) days following the earlier of the end of the thirty (30) day cure period or the date the Company provides me with written notice of its intent not to cure the event giving rise to Good Reason. If I do not give the Company written notice of the occurrence of an event listed in this Section within ninety (90) days of my becoming aware of it, or such event is cured by the Company within thirty (30) days after written notification from me regarding such occurrence, I will not have “Good Reason” to terminate my Employment as a result of such occurrence.
d.Resignation without Good Reason. If I terminate my Employment without Good Reason, then I will be paid my Accrued Obligations through the Termination Date and shall not be entitled to any additional severance or other compensation, including any unvested Long-Term Incentive Awards.
e.Termination without Substantial Cause. The Company may terminate my Employment at its discretion at any time without Substantial Cause. If the Company terminates my Employment without Substantial Cause, then I will be paid my Accrued Obligations through the Termination Date, and I will be eligible to receive the benefits provided for in Schedule B for a “Severance Eligible Termination,” subject to the requirements set forth therein.
f.Deemed Resignations. Upon termination of my Employment for any reason, unless otherwise specified in a written agreement between the Company and me, I shall be deemed to have
resigned from all offices, directorships, and other employment positions, if any, then held with the Company and any Related Company, and I shall take all actions reasonably requested by the Company to effectuate the foregoing.
5.Clawbacks and Forfeitures.
a.Notwithstanding anything in this Agreement or any other agreement between me and the Company or any Related Company, I agree that I will be subject to, and any compensation paid to me under this Agreement or otherwise will be subject to, reduction, cancellation, forfeiture and/or recoupment under any clawback policy adopted by the Company from time to time that is, by its terms, applicable to me, including the Policy for Recovery of Erroneously Awarded Compensation adopted by the Company effective October 2, 2023 (the “Clawback Policy”), and any other policy adopted by the Company pursuant to the requirements under Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Rule 10D of the Securities Exchange Act of 1934, as amended, and any rules adopted by the national securities exchange on which the Company’s securities are listed, as such policy(ies) may be amended from time to time. Upon the request of the Company, I also agree without further consideration to execute an amendment evidencing the incorporation of the policies into this Agreement and/or my acknowledgment of the application of such policies to my compensation.
b.If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of my intentional misconduct or gross negligence, with respect to any financial reporting requirement under the United States securities laws, then, if requested to do so by the Board of Directors or the Compensation Committee of the Company, in addition to any rights the Company may have under Section 5(a) above, I will forfeit and reimburse the Company for all of the following: (i) any incentive or incentive compensation paid to me based upon such erroneously stated financial information, (ii) any incentive, incentive compensation or equity compensation I received during the twelve (12) month period following the earlier of the first public issuance or filing with the Securities and Exchange Commission of the financial document embodying the financial reporting requirement, (iii) any profits realized by me personally from the sale of Company securities during that same twelve (12) month period, (iv) if my Employment is terminated or has been terminated, my right to receive Special Severance or Change in Control Special Severance, if applicable, and (v) if I am terminated or have been terminated, any unvested Long-Term Incentive Awards.
c.I understand that the Company’s exercise of the recoupment and forfeiture provisions in this Section 5 will not constitute a breach of the terms of this Agreement by the Company and will not otherwise give me the right to terminate my Employment for Good Reason.
6.Code Section 409A Compliance.
a. I understand and agree that this Agreement has been drafted with the intention to comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and its applicable regulations (“Section 409A”). The Company is hereby advising me to obtain independent advice regarding the tax consequences of any compensation payable under this Agreement and I represent I have done so or have determined not to do so in my discretion despite the Company’s advisement. I acknowledge and agree that the Company will not be liable for and will bear no responsibility for any penalties that may be assessed against me for violation of Section 409A.
b. Notwithstanding any other provision of this Agreement, no severance pay or other benefits payable under this Agreement, that when considered together with any other severance payments or separation benefits, are considered deferred compensation under Section 409A or are
otherwise intended to be exempt from Section 409A pursuant to Section 1.409A-1(b)(9) of the Treasury Regulations issued under Section 409A and are payable upon my termination of employment, will be paid or otherwise provided until I have had a “separation from service” within the meaning of Section 409A. Each payment and benefit payable under this Agreement is intended to constitute a separate payment, and the right to a series of installment payments will be treated as a right to a series of separate payments (including, for the avoidance of doubt, the base salary and annual incentive components of the severance or termination benefits payable in installments pursuant to Schedule B, and each such component shall be treated as a separate payment). To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A.
c. If at the time of my termination of Employment with the Company I am a “specified employee” as defined in Section 409A, then, to the extent required under Section 409A, the Company will not commence payment of any compensation or benefits payable upon my “separation of service” until the date that is six (6) months and one (1) day following my Termination Date (or the earliest date as is permitted under Section 409A). In no event will any payment or benefit under this Agreement that is subject to Section 409A be subject to offset by any other amount unless otherwise permitted by Section 409A.
d. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A.
d. If and to the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Section 409A, (i) all such expenses or other reimbursements hereunder will be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred, (ii) any right to reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit, (iii) the amount of expenses eligible for reimbursement, or the in-kind benefits provided, during any taxable year will not affect the expenses eligible for reimbursement, or the in-kind benefits to be provided, in any other taxable year, and (iv) any reimbursement will be for expenses incurred during the period of time specified in this Agreement and if no time period is specified, will be for expenses incurred during my lifetime.
7.Code Section 280G.
a. Best Pay Provision. In the event that any payment or benefit received or to be received by me pursuant to the terms of any plan, arrangement or agreement (including any payment or benefit received in connection with a change in ownership or control or the termination of my Employment) (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part) to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, then the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (after subtracting the amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (after subtracting the net amount of federal, state and local income taxes on such Total Payments and
the amount of Excise Tax to which I would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). Except to the extent that an alternative reduction order would result in a greater economic benefit to me on an after-tax basis, the parties intend that the Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to me that are exempt from Section 409A of the Code, (B) reduction of any other cash payments or benefits otherwise payable to me that are exempt from Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A of the Code, (C) reduction of any other payments or benefits otherwise payable to me on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting and payment with respect to any equity award that is exempt from Section 409A of the Code, and (D) reduction of any payments attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A of the Code; provided, in case of clauses (A), (B) and (C), that reduction of any payments or benefits attributable to the acceleration of vesting of Company equity awards shall be first applied to equity awards with later vesting dates; provided, further, that, notwithstanding the foregoing, any such reduction shall be undertaken in a manner that complies with and does not result in the imposition of additional taxes on me under Section 409A of the Code. The foregoing reductions shall be made in a manner that results in the maximum economic benefit to me on an after-tax basis and, to the extent economically equivalent payments or benefits are subject to reduction, in a pro rata manner.
b. Determinations. All determinations regarding the application of this Section 7 shall be made by an independent accounting firm or consulting group with nationally recognized standing and substantial expertise and experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax retained by the Company prior to the date of the applicable change in ownership or control (the “280G Firm”). For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, and, in calculating the Excise Tax, (i) no portion of the Total Payments shall be taken into account which (A) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (B) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, (ii) no portion of the Total Payments the receipt or enjoyment of which I shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the 280G Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. All determinations related to the calculations to be performed pursuant to this Section 7 shall be done by the 280G Firm. The 280G Firm will be directed to submit its determination and detailed supporting calculations to both the Company and me within fifteen (15) days after notification from either the Company or me that I may receive payments which may be “parachute payments.” The Company and I will each provide the 280G Firm access to and copies of any books, records, and documents as may be reasonably requested by the 280G Firm and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Agreement. The fees and expenses of the 280G Firm for its services in connection with the determinations and calculations contemplated by this Agreement will be borne solely by the Company.
8.Restrictive Covenants.
a.Confidential Information.
i.The Company will entrust me with Confidential Information related to my fiduciary position of trust and confidence with the Company based on the commitments I am making in this Agreement and would not do so without the promises I am making in this Agreement. “Confidential Information” means information, or a compilation of information, in any form (tangible or intangible), related to the Company’s or any of the Related Companies’ business and of value to it that I first acquire or gain access to as a consequence of my Employment with the Company if the Company has not made it public or authorized public disclosure of it and it is not readily available through lawful and proper means to the public or others in the industry who have no obligation to keep it confidential. Confidential Information includes, but is not limited to: the Company’s business plans, financial information and analysis, customer and prospective customer lists, employee lists, marketing plans and strategies, research and development data, buying practices, vendor lists, internal business methods, techniques, technical data, know-how, innovations, computer programs, un-patented inventions, trade secrets, and information about the business affairs of third parties (including, but not limited to, customers, licensors and suppliers) that such third parties provide to the Company in confidence. Due to its special value and utility as a compilation, a confidential compilation (like a customer list) will remain protected as Confidential Information even if some items of information within the list are in the public domain. Private disclosure of otherwise Confidential Information to parties the Company is doing business with for business purposes will not cause the information to lose its protected status under this Agreement.
ii.During my Employment and for so long thereafter as the information qualifies as “Confidential Information” under this Agreement, I will not engage in any use or disclosure of Confidential Information that is not authorized by the Company and undertaken for the benefit of the Company, except as may be permitted under Section 8(f) below. These obligations do not prohibit my use of generally available knowledge, skill and education that is not specific to the Company or its business relationships but is instead knowledge generic to the industry or my profession. I will comply with all Company policies and directives concerning my use, storage, and transfer of Confidential Information. Unless prohibited by law from doing so, I will notify the Company as quickly as possible after being served with a subpoena, order, or other legal mandate requiring the production of Confidential Information so that the Company can take reasonable steps to protect its interests.
b.Intellectual Property.
i.I understand that I am being employed and paid to use all of my abilities, including my creative and inventive skills, for the benefit of the Company. Accordingly I agree that any inventions, improvements, discoveries, ideas, concepts, trademarks, service marks, trade names, copyright eligible works of authorship and mask works (hereinafter referred to collectively as “Intellectual Property”) that I develop, discover, conceive or create while employed with the Company or providing services to a Related Company, alone or with others, during regular working hours or outside of them, that either: (A) relates to the business of the Company or the Related Company or their actual or demonstrably anticipated research and development, (B) is developed or discovered with the assistance of Confidential Information, tools, equipment, personnel or other resources of the Company or a Related Company, or (C) is suggested by, related to, or result from any work performed by me for the Company or a Related Company; will be deemed “Work Product.” I hereby fully and finally assign to the Company all right, title and interest in and to all of my Work Product. My Work Product will be the property of the Company from the date of conception, irrespective of when, how, or if it is ever reduced to tangible form or practice. My assignment of Work Product shall include assignment to the Related Company where the interests of a Related Company are involved as determined by the Company. Notwithstanding the forgoing, nothing in this Agreement creates or requires assignment of an invention that cannot be assigned in an employment agreement under controlling law where controlling state law has such a limitation.
ii.All original works of authorship made by me, solely or jointly with others, while employed with the Company that relate to the Company’s line of business will be considered something done within the scope of my Employment and thus “work made for hire” under the Copyright Act of 1976 (17 U.S.C. § 101) and all comparable laws throughout the world. All ownership and copyrights in this “work for hire” will belong exclusively to the Company or its designee, and to the extent any rights therein are not automatically conveyed to the Company they will be deemed assigned to the Company. In this respect, the covered original works of authorship are also Work Product. Original works of authorship (“Work Products”) covered by the foregoing are understood to include, without limitation, all writings, source code, computer programs, algorithms, photos, images, drawings, branding concepts, and other work product of any nature whatsoever consisting of copyrightable subject matter. I waive all claims I may now or hereafter have to rights of paternity, integrity, disclosure and withdrawal, artists’ rights, and any other rights that may be known as “moral rights” with respect to the above-referenced work made for hire, Work Product, and all derivative works thereof.
iii. I will, during and after my Employment, execute all documents, and will assist the Company in every reasonable and proper way, to obtain and enforce patents, trademark registrations, service mark registrations and copyrights for the Intellectual Property in any and all countries. The Company will pay the expenses for obtaining and enforcing these patents, trademark registrations, service mark registrations, and copyrights. If I retain ownership of any item of Intellectual Property or copyright eligible work that is incorporated into a Company product or service (an item of “Incorporated IP”), I grant to the Company, a non-exclusive, fully paid (royalty-free) and irrevocable worldwide license to incorporate into its products and services, reproduce, make derivative works of, sell, and otherwise use the Incorporated IP.
iv. I acknowledge notice that if I reside and work for the Company in California then my assignment of inventions that qualify as Work Product under Sections 8(b)(i) – (iii) above shall not include inventions which cannot be assigned under California Labor Code §2870; and I acknowledge notice that California Labor Code §2870 provides that: “(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer.”
c.Non-Disparagement. I will not during my Employment with the Company, any applicable Special Severance Period or Change in Control Special Severance Period, and for the twelve (12) months following the later of (i) the date of my termination of Employment or (ii) the last day of any Special Severance Period or Change in Control Severance Period (regardless of whether I receive any severance benefits in a lump sum), in any way undertake to disparage, demean, or cast in a false, misleading or negative light, the Company, its products, services, officers, directors, employees, agents, affiliates, vendors, or customers, or their successors, or in any other way publish negative statements about them or exhibit an attitude of hostility toward them; provided, however, that nothing herein will prohibit me from providing truthful testimony in a legal proceeding or prohibit conduct that is protected conduct under Section 8(f) below.
d.Use and Return of Company Property. All records related to the Company’s business activities and business development efforts made by me in the course of my Employment (such as contact lists, prospect lists, calendars and notes) wherever stored (in email, text messages, cell phones, computers or otherwise) are the property of the Company. I am not authorized to access and use the Company’s computers, email, or related computer systems to pursue competitive business interests. I will preserve records of Company customers, prospects, suppliers, and other business relationships, and will not knowingly use these records to harm the Company’s business interests. Upon termination of my Employment, I will return all such records, and any copies (tangible and intangible) to the Company. Upon request, I will provide the Company reasonable means to access and verify that no Confidential Information or other Company property has been retained by me on personal computers, cell phones, email or cloud storage accounts to the extent such devices or accounts were used by me in connection with my Employment or the Company’s business, or in any other place that is subject to my ownership or control. The Company shall have the right, at its option, to require me to vacate my office or otherwise remain off the Company’s premises and to cease any and all activities on the Company’s behalf without such action constituting a termination of my Employment or a breach of this Agreement.
e.Conflicting Activities. I agree that I am subject to the prohibitions of Schedule C (as defined therein) on the terms and conditions set forth therein. The Company is herein advising me to consult with an attorney before signing this Agreement and becoming bound by the obligations herein, including in Schedule C.
f.Protected Conduct. I understand that nothing in this Agreement prohibits me from communicating directly with, cooperating with, or providing information to, or receiving financial awards from, any federal, state or local government agency (including, without limitation, the Securities and Exchange Commission or the National Labor Relations Board), without notifying or seeking approval from Company before doing so, nor does it prohibit discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that I have reason to believe is unlawful, or exercising any rights I may have under Section 7 of the National Labor Relations Act. I acknowledge notice that pursuant to the Defend Trade Secrets Act (“DTSA”): (i) no individual (consultant, contractor or employee) will be held criminally or civilly liable under Federal or State trade secret law for the disclosure of a trade secret that: (A) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and made solely for the purpose of reporting or investigating a suspected violation of law; or, (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and (ii) an individual who pursues a lawsuit for
retaliation by an employer for reporting a suspected violation of the law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order. The foregoing will not be construed to invite, permit, or limit liability for otherwise illegal activity such a breaking and entering, illegal computer access (hacking) or theft of the Company property.
9.Dispute Resolution. To ensure the timely and economical resolution of disputes that arise in connection with this Agreement, the Parties agree that, except as excluded herein and as set forth in Section 8(f), any and all controversies, claims and disputes arising out of or relating to this Agreement, including without limitation any alleged violation of its terms, or otherwise arising out of or relating to my Employment relationship with the Company or any of the Related Companies, shall be resolved solely and exclusively by final and binding arbitration, before a single neutral arbitrator, held in San Diego County, California through JAMS in conformity with California law and the then-existing JAMS employment arbitration rules, which can be found at https://www.jamsadr.com/rules-employment-arbitration/, or which will be provided upon reasonable request to the Company’s human resources department. The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. shall govern the interpretation and enforcement of this arbitration clause. All remedies available from a court of competent jurisdiction shall be available in the arbitration; provided, however, that either Party may request temporary or preliminary injunctive relief, to the extent permitted by applicable law, from a court of competent jurisdiction if such relief is not available or not available in a timely fashion through arbitration. The arbitrator shall: (a) provide adequate discovery for the resolution of the dispute; and (b) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award. For any claim arising under this Agreement, the arbitrator may award the prevailing Party reasonable attorneys’ fees, cost, and expert fees, if any, and, to the extent provided by applicable law may award reasonable attorneys’ fees, costs, and expert fees on any other claim. The Parties understand that by agreement to arbitrate any claim pursuant to this Section 9, they will not have the right to have any claim subject to arbitration decided by a jury or a court but shall instead have any claim decided through arbitration. Each Party waives any constitutional or other right to bring claims covered by this Agreement other than in their individual capacities. Except as may be prohibited by applicable law, the foregoing waiver includes the ability to assert claims as a plaintiff or class member in any purported class or collective action or representative proceeding. Neither Party may bring any arbitration on a class, collective or representative basis. In the event that any arbitration to which I am a party qualifies as a “Mass Arbitration” under the terms of the then current JAMS Mass Arbitration Procedures and Guidelines, the current version of which can be found at https://www.jamsadr.com/mass-arbitration-procedures, the then current JAMS Mass Arbitration Procedures and Guidelines shall be applied. I further agree that any dispute brought by me against the Company’s parents, subsidiaries, affiliates, officers, directors, or employees, arising out of or relating to my Employment by the Company, shall be subject to arbitration under this Agreement, and such person or entity may enforce this provision as intended third party beneficiaries. Nothing herein shall limit my ability to pursue claims for workers compensation or unemployment benefits or pursue other claims which by law cannot be subject to mandatory arbitration.
10.Miscellaneous.
a.Taxes. I acknowledge that I am responsible for all taxes owed by me related to my compensation and benefits. The amounts payable pursuant to this Agreement and the attached Schedules are subject to all applicable federal and state tax and required withholding.
b.Beneficiaries and Assignment. This Agreement will be binding upon and inure to the benefit of the Parties, and their heirs and successors. This Agreement will automatically inure to the benefit of and be enforceable by the Company and any of the Related Companies, and any successors and assigns. If I become employed with a Related Company without signing a new agreement, the Related Company will step into Company’s position under this Agreement and will be entitled to the same protections and enforcement rights as the Company. I agree to the assignment of this Agreement and all rights and obligations hereunder, including, but not limited to, an assignment in
connection with any merger, sale, transfer or acquisition consummated by the Company or any of its subsidiaries, affiliates or divisions, or relating to all or part of its assets or the assets of its subsidiaries, affiliates or divisions. The Company will cause any such successor to the Company to assume the Company’s obligations under this Agreement, and a failure by the Company to obtain the assumption of this Agreement by any successor to the Company of all or substantially all of the Company's assets or business shall be deemed a material breach of this Agreement. I understand I will have no right to assign my rights, benefits, duties, obligations or other interests in this Agreement as they are personal to me, other than by will or the laws of descent and distribution. Any attempted assignment by me of my rights, benefits, duties, obligations or other interests in this Agreement in violation of this Agreement will be null and void.
c.Entire Understanding. The Parties are relying upon no representations outside of this Agreement in deciding to enter into this Agreement. This Agreement (inclusive of Schedules) is the entire understanding between the Company and me with respect to all matters herein; provided, however, that this Agreement shall be construed to supplement and not eliminate, supersede or replace my current “Employee Invention and Confidentiality Agreement” or any other agreement containing any restriction on my use of the Confidential Information or trade secrets of the Company and its Related Companies, which prior agreements shall be construed to compliment and not conflict with this Agreement with the understanding that if any irreconcilable conflict between the agreements should arise, this Agreement will control (unless any such prior agreement imposes a post-termination noncompetition or non-solicitation covenant, in which case this Agreement shall supersede any such covenant if I reside in the State of California at the time I execute this Agreement or if, any time during the term of my Employment, I am a resident of California). Further still, to the extent I have entered into any other agreements as part of the sale or acquisition of a business or business assets that have restrictive covenants, such agreements and the restrictive covenants therein will survive and stand independent from and unaffected by this Agreement. As of the Effective Date, except as otherwise explicitly provided herein, this Agreement replaces and supersedes any and all prior understandings or agreements between the Company or any Related Company and me regarding my Employment, including without limitation, any employment agreement or offer letter between the Company or any Related Company and me or any of its affiliates in effect prior to the Effective Date.
d.Amendment and Waiver. This Agreement will not be modified or amended except by another instrument in writing executed by the Parties. Failure of either party at any time to require performance by the other of any provision of this Agreement will in no way affect the rights of the waiving party to enforce the same thereafter, nor will the waiver by either party of any breach of any provision of this Agreement be held to be a waiver of any succeeding breach of any provision or a waiver of the provision itself.
e.Notices. Any notice, request, demand, or other communication required or permitted hereunder, shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by email upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt, to me at the most recent address listed in the Company’s personnel records, and to the Company at the address below:
Callaway Golf Company
2180 Rutherford Road
Carlsbad, California 92008
Attn: General Counsel
f.Applicable Law. This Agreement will constitute a contract under the internal laws of the State of California and will be governed and construed in accordance with the laws of said state as to both interpretation and performance.
g.Severability. My obligations under this Agreement are each separate and severable obligations. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the Company and I consent to the adjudicator’s enforcement of the restrictions to such lesser extent as would make the restriction reasonable and enforceable and/or agree to the reformation of the restriction (for purposes of that jurisdiction only) where such is necessary to make it enforceable to protect the legitimate business interests of the Company. If, despite the foregoing, any provision in this Agreement is adjudicated to be void, illegal or unenforceable, then it will be severed, and all other provisions contained in this Agreement will remain in full force and effect as if the offending provision was never contained in this Agreement.
h.Survival. Unless otherwise expressly agreed by the Company and me in writing, my obligations under this Agreement will, in accordance with their terms, be unaffected by any change in position, title, duties, or other terms and conditions of my Employment. My post-Employment obligations will survive the termination of my Employment and/or this Agreement. The existence of a claim by me against the Company, whether predicated on this Agreement or otherwise, will not relieve me of my obligation to comply with the restrictions on my conduct provided for in this Agreement or make them unenforceable.
i.Counterparts / Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civ. Code §1633.1, et seq.) or other applicable law) or other transmission method, and any counterpart so delivered shall be deemed to have been duly signed and delivered and be valid and effective for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
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/s/ Timothy Reed___________________________
Timothy Reed
Date: 4/13/26_________________________
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COMPANY
Callaway Golf Company, a Delaware corporation
By: /s/ Brian P. Lynch_______________________
Brian P. Lynch, Executive Vice President,
Chief Financial Officer, Chief Legal Officer
Date: 5/7/26_________________________
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SCHEDULE A
Compensation and Benefits
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule A:
A-1.Compensation, Benefits and Expenses.
a.Position. Executive Vice President, Research & Development and Tour, reporting to Chief Executive Officer.
b.Base Salary. $510,000.00 per year. In accordance with the Company’s usual payroll practices, the Company will pay me an annual base salary at the rate described herein (prorated for any partial years of Employment), payable in substantially equal installments on regularly scheduled Company pay dates. My base salary will be reviewed on an annual basis by the Board or its designated representative. The Company reserves the right to increase my base salary pursuant to the Company’s employee compensation practices and policies in effect from time to time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my base salary rate (as the same may be increased during my employment) without my prior written consent.
c.Annual Incentive. I am eligible for a discretionary annual incentive payment based upon participation in the Company’s applicable incentive program as it may or may not be in effect from time-to-time. My annual target incentive percentage is 60% of the actual annual base salary paid to me during the applicable calendar year for which such annual incentive is earned (the “Target Incentive”). Any annual incentive payment earned pursuant to an applicable incentive plan will be paid in accordance with the Company’s then current payroll practices in the first quarter of the year following the end of the Company’s fiscal year to which the annual incentive relates, provided that, except as provided in Schedule B, the annual incentive will not be earned and payable unless I am actively employed in good standing, and have not given, or received, notice of termination of Employment as of the date the annual incentive is paid. The Company reserves the right to increase my Target Incentive pursuant to the Company’s employee compensation practices and policies in effect from time-to-time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my Target Incentive (as the same may be increased during my employment) without my prior written consent.
d.Long-Term Incentives. Subject to approval of the Board or its designated representative, the Company will provide me an opportunity to participate in the Company’s long-term incentive programs under which I may be eligible in accordance with the terms of such programs as in effect from time to time and as may be amended in the sole and absolute discretion of the Company (the “Long-Term Incentive Plans”). My participation in the Long-Term Incentive Plans will be governed by the terms of the Long-Term Incentive Plans, including the notice and grant agreement specific to each Long-Term Incentive Plan award I am awarded. My annual target opportunity under the Company’s Long-Term Incentive Plans (my “Target LTI Opportunity”) will be established annually by the Board or its designated representative. The Company reserves the right to increase my Target LTI Opportunity pursuant to the Company’s Long-Term Incentive Plans in effect from time to time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my Target LTI Opportunity (as the same may be increased during my employment) without my prior written consent.
e.Benefit Plans. The Company will offer me participation in the various employee benefit plans it sponsors such as health and welfare coverage, qualified retirement plans and other insured benefits applicable to my position and subject to my eligibility to participate under the terms of such plans.
f.Paid Time Off/Sick Time. I am eligible to accrue PTO up to the maximum accruals set by the Company in accordance with the terms and conditions of the Company’s PTO Program and as set forth in the most recent “Executive Benefits Summary” provided to me by the Company under separate cover, as may be amended from time-to-time in the Company’s sole and absolute discretion. Accrued PTO may be taken any time during the year subject to prior approval by the Company. I am eligible for paid sick leave days (“Sick Leave”) in accordance with applicable state or local law.
g.Other Perquisites. The Company may provide other perquisites to me from time-to-time as determined by the Company, including those described in the most recent Executive Benefits Summary.
h.Business Expenses. The Company shall reimburse me for the reasonable, customary and necessary expenses I incur in the performance of my duties. My reimbursement for such business expenses is contingent on my compliance with the Company’s expense reimbursement policies as may be in effect from time to time.
SCHEDULE B
Termination Benefits
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule B:
B-1. Severance Benefits.
a.Severance Eligible Termination. If the Company terminates my Employment without Substantial Cause, or if I voluntarily terminate my Employment with the Company for Good Reason, then it will be deemed a “Severance Eligible Termination.” Subject to Sections B-4 and B-6 below, if the termination of my Employment with the Company constitutes a Severance Eligible Termination, in addition to the Accrued Obligations, I will be provided the following “Special Severance”:
i.A one-time, lump-sum payment based on the annual incentive payment I would have received in the then-current year, based on the Company’s actual performance as measured against the requirements of the annual incentive plan, pro-rated to my Termination Date (the “Pro-Rata Incentive Plan Payment”);
ii.The vesting of my unvested long-term incentive compensation awards (e.g., restricted stock units, performance shares, stock appreciation rights, stock options, and other long-term equity-based incentive awards) (“Long-Term Incentive Awards”) that would have vested had I continued to be employed pursuant to this Agreement for a period of twelve (12) months from the Termination Date; provided that any unvested Long-Term Incentive Awards that are subject to performance-based vesting will vest in accordance with this Section B-1(a)(ii) only if, and to the degree that, the performance goals are satisfied in accordance with the terms of the applicable Long-Term Incentive Plan and award agreement thereunder. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-1(a)(ii));
iii.A severance payment equal to the sum of (A) 1.0 time my most recent annual base salary, plus (B) 1.0 time my annual target incentive for the year of termination (calculated for this purpose by multiplying my annual target incentive percentage specified in Schedule A by my most recent annual base salary), payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of twelve (12) months from the Termination Date (the “Special Severance Installments” and such period, the “Special Severance Period”);
iv.for a period of twelve (12) months (or, if earlier, (A) the date on which the applicable continuation period under COBRA and/or Cal-COBRA expires or (B) the date I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment) (such period, the “Assistance Period”), if I and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date elect to have COBRA and/or Cal-COBRA coverage and are eligible for such coverage, the Company shall pay or reimburse me, at its election, on a monthly basis, for an amount equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for myself and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date; provided, however, that, if the Company determines, in its sole discretion, that the Company cannot provide healthcare continuation benefits under this sentence during the Assistance Period without potentially violating or causing the Company to incur financial costs or penalties under applicable law
(including, without limitation, Section 2716 of the Public Health Service Act), the Company shall, in lieu thereof, pay me a monthly taxable cash payment during the Assistance Period (or any remaining portion thereof) equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents (the “Taxable Assistance Period Payments”). In lieu of providing healthcare continuation benefits during the Assistance Period pursuant to the preceding sentence, the Company may elect, at the time of my Severance Eligible Termination, to instead provide me with a one-time, taxable lump-sum payment intended to assist with the post-termination healthcare costs for me and my dependents (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) twelve (12) months (the “Lump Sum Assistance Payment”). If I am paid a Lump Sum Assistance Payment, I will receive the Lump Sum Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Lump Sum Assistance Payment for any purpose in my discretion. I will notify the Company immediately if I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment during the Assistance Period;
v.Continuation of any financial, tax and estate planning services (on the then-existing terms and conditions) through the period during which I am receiving the Special Severance Installments; and
vi.Up to one year of outplacement services through a professional outplacement firm of the Company’s choosing.
The Lump Sum Assistance Payment (if applicable), as well as the vesting of any time-based Long-Term Incentive Awards described in Section B-1(a)(ii), will be made as soon as administratively practicable following the date my Release (as defined below) becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date; the Pro-Rata Incentive Plan Payment, as well as the vesting of any performance-based Long-Term Incentive Awards described above, will be made at such time and in such manner as such performance based payments are regularly made by the Company after the completion of the relevant performance period and the evaluation of whether, and the degree to which, the performance criteria have been met (but in all events, the Pro-Rata Incentive Plan Payment described in Section B-1(a)(i) will be paid no later than March 15 of the calendar year following the year in which my Termination Date occurs and the settlement of such performance-based Long-Term Incentive Awards will occur no later than March 15 of the calendar year following the year in which such awards are no longer subject to a “substantial risk of forfeiture” (as defined in Section 409A)); and the Special Severance Installments and Taxable Assistance Period Payments (if applicable) will commence as soon as administratively practicable following the date the Release becomes effective and irrevocable, but in no event later than the first regularly scheduled payroll date thereafter, and the Special Severance Installments and Taxable Assistance Period Payments (if applicable) shall be paid over time as described above following the effective date of the Release. None of the payments described in this Section B-1 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the effective date of the Release will accrue and be paid as soon as administratively practicable in accordance with the preceding sentence. Except as otherwise provided in this Agreement, I am not eligible for any other payments in connection with my termination of Employment as a result of a Severance Eligible Termination.
a.Severance Eligible Termination Within Twenty-Four Months Following a Change in Control. Subject to Sections B-4 and B-6 below, in the event my Employment is terminated as a result of a
Severance Eligible Termination within the twenty-four (24) month period following a Change in Control (as defined below), in addition to the Accrued Obligations, I will be provided the following “Change in Control Special Severance”:
i.The Special Severance amounts in Section B-1(a) above; provided, however, the Special Severance Installments will consist of the sum of (A) 2.0 (instead of 1.0) times the sum of my most recent annual base salary plus 2.0 (instead of 1.0) times my annual incentive target for the year of termination (calculated for this purpose by multiplying my annual target incentive percentage specified in Schedule A by my most recent annual base salary), payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of twenty-four (24) months from the Termination Date (such period, the “Change in Control Special Severance Period”); provided, further, that the Assistance Period (or the number of months to be covered by any Lump Sum Assistance Payment) will be equal to a period of twenty-four (24) months from the Termination Date. All other Special Severance elements will be payable in accordance with Section B-1(a) above; and
ii.In lieu of the Special Severance in Section B-1(a)(ii) above, (A) the vesting of all of my unvested time-based Long-Term Incentive Awards that vest solely based on my continued employment or service (including awards for which the performance objectives have been satisfied but which remain subject to time-based vesting following the end of the applicable performance period) shall be accelerated effective as of the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date, and (ii) the vesting of all of my unvested Long-Term Incentive Awards that are subject to performance-based vesting (e.g., performance stock units) will vest at the target performance level effective as of the date my Release becomes effective and irrevocable (unless the level of performance was determined at the time of the Change in Control at a higher achievement level in accordance with the applicable award agreement, in which case such higher achievement level shall apply), but in no event later than seventy (70) days after the Termination Date. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-1(b)(ii); and
iii.In addition to the Special Severance in Section B-1(a)(iv) above, I will receive a one-time, taxable lump-sum payment intended to assist with a portion of the post-termination healthcare costs for me and my dependents not covered under Section B-1(a)(iv) above (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) six (6) months (the “Change in Control Supplemental Lump Sum Assistance Payment”). If I am paid a Change in Control Supplemental Lump Sum Assistance Payment, I will receive the Change in Control Supplemental Lump Sum Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Change in Control Supplemental Lump Sum Assistance Payment for any purpose in my discretion. The Change in Control Supplemental Lump Sum Assistance Payment will be made as soon as administratively practicable following the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date.
b.Other Benefits. I agree that payment of Special Severance or Change in Control Special Severance pursuant to this Section B-1 shall be in lieu of, and not in addition to, any other payment that I might otherwise be entitled to, including, but not limited to, payments under any state or federal
Worker Adjustment and Retraining Notification Act, any similar statute, or as provided for under common law.
B-2. Permanent Disability Benefits.
a.Subject to Sections B-4 and B-6 below, in the event my Employment is terminated as a result of my “Permanent Disability” (as defined below), in addition to the Accrued Obligations, I will be provided the following “Permanent Disability Benefit”:
i.A payment equal to 0.500 times my most recent annual base salary, payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of six (6) months from the Termination Date (the “Disability Installments”);
ii.A Pro-Rata Incentive Plan Payment;
iii.The vesting of my unvested Long-Term Incentive Awards that would have vested had I continued to be employed pursuant to this Agreement for period of twelve (12) months from the Termination Date; provided that any unvested Long-Term Incentive Awards that are subject to performance-based vesting will vest in accordance with this Section B-2(a)(iii) only if, and to the degree that, the performance goals are satisfied in accordance with the terms of the applicable Long-Term Incentive Plan and award agreement thereunder. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-2(a)(iii)); and
iv.for a period of twelve (12) months (or, if earlier, (A) the date on which the applicable continuation period under COBRA and/or Cal-COBRA expires or (B) the date I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment) (such period, the “Disability Assistance Period”), if I and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date elect to have COBRA and/or Cal-COBRA coverage and are eligible for such coverage, the Company shall pay or reimburse me, at its election, on a monthly basis, for an amount equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for myself and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date; provided, however, that, if the Company determines, in its sole discretion, that the Company cannot provide healthcare continuation benefits under this sentence during the Disability Assistance Period without potentially violating or causing the Company to incur financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company shall, in lieu thereof, pay me a monthly taxable cash payment during the Disability Assistance Period (or any remaining portion thereof) equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents (the “Taxable Disability Assistance Period Payments”). In lieu of providing healthcare continuation benefits during the Disability Assistance Period pursuant to the preceding sentence, the Company may elect, at the time of my termination of Employment as a result of my Permanent Disability, to instead provide me with a one-time, taxable lump-sum payment intended to assist with the post-termination healthcare costs for me and my dependents (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) twelve (12) (the “Lump Sum
Disability Assistance Payment”). If I am paid a Lump Sum Disability Assistance Payment, I will receive the Lump Sum Disability Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Lump Sum Disability Assistance Payment for any purpose in my discretion. I will notify the Company immediately if I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment during the Disability Assistance Period.
The Lump Sum Disability Assistance Payment (if applicable), as well as the vesting of any time-based Long-Term Incentive Awards described in Section B-2(a)(iii), will be made as soon as administratively practicable following the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date; the Pro-Rata Incentive Plan Payment, as well as the vesting of any performance-based Long-Term Incentive Awards described above, will be made at such time and in such manner as such performance based payments are regularly made by the Company after the completion of the relevant performance period and the evaluation of whether, and the degree to which, the performance criteria have been met (but in all events, the Pro-Rata Incentive Plan Payment described in Section B-2(a)(ii) will be paid no later than March 15 of the calendar year following the year in which my Termination Date occurs and the settlement of such performance-based Long-Term Incentive Awards will occur no later than March 15 of the calendar year following the year in which such awards are no longer subject to a “substantial risk of forfeiture” (as defined in Section 409A)); and the Disability Installments and Taxable Disability Assistance Period Payments (if applicable) will commence as soon as administratively practicable following the date the Release becomes effective and irrevocable, but in no event later than the first regularly scheduled payroll date thereafter, and the Disability Installments and Taxable Disability Assistance Period Payments (if applicable) shall be paid over time as described above following the effective date of the Release. The Permanent Disability benefits provided pursuant to this Section B-2 will be coordinated with other applicable disability insurance as required by the applicable policies. None of the payments described in this Section B-2 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the effective date of the Release will accrue and be paid as soon as administratively practicable in accordance with the preceding sentence. Except as otherwise provided in this Agreement, I will not be entitled to any payments or benefits under Section B-1 as a result of such termination of my Employment by the Company following my Permanent Disability, which shall be considered a termination for Substantial Cause.
For purposes of this Agreement, “Permanent Disability” shall mean my failure to perform or being unable to perform all or substantially all of my duties under this Agreement for a continuous period of six (6) months or more on account of any physical or mental disability, as reasonably determined by the Company or as reflected in the opinion of a qualified physician selected by the Company, provided that, to the extent required under Section 409A, such disability or impairment also qualifies as a “disability” for purposes of Section 409A. The existence of my Permanent Disability shall be determined by the Company in good faith.
B-3. Death Benefits. In the event of my death, in addition to the Accrued Obligations, all my outstanding unvested time-based Long-Term Incentive Awards will immediately vest and be settled as soon as administratively practicable but in no event later than seventy (70) days after the date of my death. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-3). The foregoing benefit is referred to as the “Death Benefit.”
B-4. Requirement for a Release. The Company’s obligation to provide me the severance or any other benefits payable under Sections B-1 and B-2, other than my Accrued Obligations through the Termination
Date, will be conditioned on my (or my representatives if I am unable to sign due to my Permanent Disability) signing a release agreement in the form attached to the Agreement as Schedule D within the time period set forth therein) that, among other things, (a) contains an effective release of any and all claims in favor of the Company and any of the Related Companies, and (b) secures my commitment to abide by all post-Employment obligations applicable to me under this Agreement (referred to hereafter as my “Release”). If, for any reason, my Release does not become effective and irrevocable within sixty (60) days following my Termination Date, I will not be entitled to any payments or benefits pursuant to Sections B-1 and B-2 and will forfeit all rights thereto; however, the Accrued Obligations through the Termination Date will be paid. Additionally, none of the payments or benefits pursuant to Sections B-1 and B-2 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the Release effective date will accrue and be paid as provided in this Schedule B.
B-5. Other. Except for the Accrued Obligations and the amounts specifically provided pursuant to this Schedule B, I shall not be entitled to any further compensation, incentive, damages, restitution, relocation benefits, or other severance benefits upon my termination of Employment. The amounts payable to me pursuant to this Schedule B shall not be treated as damages, but as compensation to which I may be entitled by reason of my termination of Employment under the applicable circumstances. The Company shall not be entitled to set off against the amounts payable to me pursuant to this Schedule B any amounts earned by me in other employment after termination of my Employment with the Company, or any amounts which might have been earned by me in other employment had I sought such other employment. The provisions of this Schedule B shall not limit my rights under or pursuant to any other agreement or understanding with the Company regarding any pension, insurance or other employee benefit plan of the Company to which I am entitled pursuant to the terms of such plan.
B-6. Conditions on Receiving Post-Termination Benefits. My right to all payments or benefits under this Schedule B shall in all events be subject to Sections 6 (Code Section 409A) and 7 (Code Section 280G) of the Agreement. In addition, notwithstanding anything else to the contrary, it is expressly understood that any obligation of the Company to pay any post-termination benefits pursuant to this Schedule B shall be subject to my continued compliance with the terms and conditions of this Agreement, including Section 8 of the Agreement and Schedule C, if applicable. If I breach or threaten to breach this Agreement (including, without limitation, Section 8 of this Agreement or Schedule C, if applicable), the Company will be entitled to cease the payment of any severance or benefits under this Schedule B (other than the Accrued Obligations).
B-7. Definition of Change in Control. For purposes of this Agreement “Change in Control” is defined as a circumstance where:
a.any person, entity or group, within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) but excluding the Company and its subsidiaries and any employee benefit or stock ownership plan of the Company or its subsidiaries and also excluding an underwriter or underwriting syndicate that has acquired the Company’s securities solely in connection with a public offering thereof (such person, entity or group being referred to herein as a “Person”) becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either the then outstanding shares of the common stock of the Company or the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors; or
b.individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board, provided that any individual who becomes a director after the Effective Date whose election, or nomination for election by the Company’s shareholders, is approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered to be a member of the Incumbent Board unless that individual was nominated or elected by any Person having the power to exercise, through beneficial ownership, voting agreement and/or proxy, 20% or more of either the outstanding
shares of the common stock of the Company or the combined voting power of the Company’s then outstanding voting securities entitled to vote generally in the election of directors, in which case that individual shall not be considered to be a member of the Incumbent Board unless such individual’s election or nomination for election by the Company’s shareholders is approved by a vote of at least two-thirds of the directors then comprising the Incumbent Board; or
c.consummation by the Company of the sale or other disposition of all or substantially all of the Company’s assets or a reorganization or merger or consolidation of the Company with any other Person, other than (A) a reorganization or merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto (or, in the case of a reorganization or merger or consolidation that is preceded or accomplished by an acquisition or series of related acquisitions by any Person, by tender or exchange offer or otherwise, of voting securities representing 50% or more of the combined voting power of all securities of the Company, immediately prior to such acquisition or the first acquisition in such series of acquisitions) continuing to represent, either by remaining outstanding or by being converted into voting securities of another entity, more than 50% of the combined voting power of the voting securities of the Company or such other entity outstanding immediately after such reorganization or merger or consolidation (or series of related transactions involving such a reorganization or merger or consolidation), or (B) a reorganization or merger or consolidation effected to implement a recapitalization or reincorporation of the Company (or similar transaction) that does not result in a material change in beneficial ownership of the voting securities of the Company or its successor.
Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to any amount hereunder that provides for the deferral of compensation that is subject to Section 409A, to the extent required to avoid the imposition of additional taxes under Section 409A, the transaction or event shall only constitute a Change in Control for purposes of the payment timing of such amount if such transaction also constitutes a “change in control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5).
SCHEDULE C – CALIFORNIA
Conflicting Activities
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule C:
C-1. Agreement Not to Engage in Conflicting Activities. I acknowledge that in reliance upon my covenants in this Agreement, the Company will provide me with one or more of the following: Confidential Information related to my position and duties; trade secrets; authorization to communicate and develop goodwill with customers, suppliers, employees, and other key business relationships of the Company and its Related Companies; and/or, specialized training related to the business of the Company and its Related Companies. I agree that the foregoing would give me an unfair competitive advantage if my activities were not restricted as provided for in this Agreement during my Employment. In order to avoid activities of this nature and the irreparable harm they cause, I agree that, during my Employment, without the consent of the Company, (i) I will not work for or become associated with any outside business activities for remuneration (whether cash or otherwise), whether or not for a business that would constitute a Competitor for purposes of this Schedule C, and (ii) I will not invest in, provide material assistance to any business, or otherwise pursue any business opportunity, in each case under this clause (ii) that would create a conflict of interest. Also, during my Employment, I will not divert business opportunities away from the Company or the Related Companies for personal gain or interfere with the business relationship between the Company and its employees, customers, suppliers, distributors, or vendors, by soliciting or otherwise encouraging or inducing them to cease or reduce doing business with the Company or the Related Companies except where such conduct is undertaken in the course of my duties for the Company and for the benefit of the Company or the Related Companies.
C-2. Definitions.
a.“Competitor” refers to any business (irrespective of how it is organized) that is engaged in the same line of business as the Company or one so similar in nature that it would displace the business opportunities for the Company’s products and/or services in any markets where the Company does business or has demonstrable plans to do business and with respect to which I was provided access to Confidential Information in the course of Employment. The forgoing will include the products and/or services of a Related Company that I have material involvement with or with respect to which I am provided Confidential Information in the course of my Employment.
b.“Related Companies” means, collectively, the Company’s subsidiaries, affiliates or any other company in which Company has an investment and/or other ownership interest.
c.It is understood that to “solicit” or “soliciting” and their derivations mean to interact with another person or entity with the purpose or foreseeable result being to cause, motivate or induce the person or entity to engage in some responsive action, irrespective of who first initiated contact. It will not include general advertising (such as “help wanted” ads) that are not targeted at the Company’s employees or customers.
C-3. Exception. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prohibits me from owning a non-controlling interest consisting or two percent (2%) or less of any class of securities in any publicly traded company or passive investments through an independently controlled fund such as a mutual fund, provided that I am not a controlling person of, or a member of a group that controls, such business, and further provided that I do not otherwise participate in any conduct prohibited under this Agreement.
C-4. Irreparable Harm. A violation of this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C) by me would cause not only actual and compensable damage, but also
irreparable harm and continuing injury to the Company, for which there would not be an adequate remedy at law. Accordingly, if I breach or threaten to breach this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C), the Company will be entitled to temporary and permanent injunctive relief in addition to, and not in lieu of, any and all other legal remedies to which it would otherwise be entitled. In addition to, and not in lieu of injunctive relief to prevent further violations, the Company will have the right to, in addition to any other legal remedies and damages available, to cease the payment of any severance or benefits under Schedule B hereof. The Company will be deemed the prevailing party for all purposes if any relief is granted to it, irrespective of whether some relief requested by the Company is also denied.
C-5. Survival. My obligations in this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C) shall survive the termination of the Agreement and my Employment under it. My obligations under this Agreement are independent and severable obligations; and, the existence of any claim or cause of action against Company by me, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Company of my obligations under this Agreement. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the adjudicator will enforce the restriction to such lesser extent as would make it reasonable and enforceable and/or reform the restriction to the extent necessary to make it enforceable to protect Company’s legitimate business interests. A presumption provided for in this Agreement may only be overcome by presentation of clear and convincing evidence from the party opposing application of the presumption and shall not apply to the extent that its application would make the restriction, clause or other provision at issue unenforceable. If, despite the foregoing, any provision of this Agreement is adjudicated to be void, illegal or unenforceable, all other provisions will remain in full force and effect, as if the void, illegal, or unenforceable provision is not part of the Agreement except where this Agreement expressly provides otherwise.
SCHEDULE D
Form of Release
This Release of Claims (“Release”) is made pursuant to the Employment Agreement (the “Agreement”) to which this Release is attached as Schedule D and will be effective as of the Release Effective Date (as defined below), by and between the undersigned, _____________________ [NAME], and Callaway Golf Company, a Delaware corporation, (the “Company”), collectively the “Parties.” This Release is entered into in light of the fact that my employment with the Company will terminate effective [_____] and I am eligible to receive the [Special Severance][Change in Control Special Severance][Permanent Disability Benefit] described in Schedule B to the Agreement, subject to the occurrence of the Release Effective Date within the time period specified in Section 3 below and my continued compliance with the terms of this Release and the Agreement. Capitalized terms used herein without definition shall have the meanings given to such terms in the Agreement.
1. Consideration. In consideration for the payment of the [Special Severance][Change in Control Special Severance][Permanent Disability Benefit] described in Schedule B to the Agreement, Employee agrees to the terms and provisions set forth in this Release. In addition, to the extent not already paid, and subject to the terms and conditions of the Agreement, the Company shall pay or provide to me the Accrued Obligations described in the Agreement, subject to and in accordance with the terms thereof.
2. Release. I hereby agree that, other than with respect to the Retained Claims (as defined below), the consideration described in Section 1 represents settlement in full of all outstanding obligations owed to me by the Company, any of its direct or indirect parents, subsidiaries or affiliates, and any of their respective current and former officers, directors, equity holders, managers, employees, agents, investors, attorneys, shareholders, administrators, affiliates, benefit plans, plan administrators, insurers, trustees, divisions, and subsidiaries and predecessor and successor corporations and assigns (collectively, the “Releasees”) related to my employment or service with the Company or any of its direct or indirect parents, subsidiaries or affiliates or termination therefrom. I, on my own behalf and on behalf of any of my affiliates, family members, executors, agents, heirs and assigns, other than with respect to the Retained Claims, hereby and forever release the Releasees from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that I may possess based on any omissions, acts, facts, or damages that have occurred up until and including the date I sign this Release against any of the Releasees arising directly or indirectly out of, relating to or in any other way involving in any manner whatsoever my employment or service with the Company or any of its direct or indirect parents, subsidiaries and affiliates or termination therefrom, including, without limitation:
a.any and all claims relating to or arising from my employment or service relationship with the Company or any of its direct or indirect parents, subsidiaries and affiliates and the termination of that relationship;
b. any and all claims relating to, or arising from, my right to purchase, or actual purchase of any shares of stock or other equity interests of the Company or any of its direct or indirect parents, subsidiaries and affiliates, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state law, and securities fraud under any state or federal law;
c. any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;
d. any and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Equal Pay Act; the Fair Labor Standards Act; the Fair Credit Reporting Act; the Age Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Employee Retirement Income Security Act of 1974; the Worker Adjustment and Retraining Notification Act; the Family and Medical Leave Act; the Sarbanes-Oxley Act of 2002; and the California Fair Employment and Housing Act, California Government Code Section 12940, et seq.;
e. any and all claims for violation of the federal or any state constitution;
f. any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
g. any and all claims arising out of the wage and hour and wage payments laws and regulations of the state or states in which I have provided service to the Company or any of its direct or indirect parents, subsidiaries and affiliates; and
h. any and all claims for attorneys’ fees and costs.
This Release does not release claims that cannot be released as a matter of law, including, but not limited to, my right to report possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002, or any other whistleblower protection provisions of state or federal law or regulation and any right to receive an award for information provided thereunder, my right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company or any Releasee for discrimination (with the understanding that my release of claims herein bars me from recovering such monetary relief from the Company or any Releasee for any alleged discriminatory treatment), claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law, claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of COBRA, claims for indemnity under the bylaws of the Company, as provided for by state law or under any applicable indemnification agreement or insurance policy with respect to my liability as an employee, director or officer of the Company or any of its direct or indirect parents, subsidiaries and affiliates, and claims to any benefit entitlements vested as the Termination Date pursuant to written terms of any employee benefit plan of the Company or its affiliates. This Release further does not release claims for the Company’s breach of its executory obligations under this Release or Schedule B of the Agreement. This Release does not prevent me from engaging in any protected conduct described in Section 8(f) of the Agreement. The claims described in this paragraph are referred to as the “Retained Claims.”
I ACKNOWLEDGE THAT I AM FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
I, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS I MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
3. Acknowledgment of Waiver of Claims under ADEA. I understand and acknowledge that I am waiving and releasing any rights I may have under the Age Discrimination in Employment Act of 1967 (“ADEA”), and that this Release is knowing and voluntary. I understand and agree that this Release does not apply to any rights or claims that may arise under the ADEA after the date I sign this Release. I understand and acknowledge that the consideration given for this Release is in addition to anything of value to which I was already entitled. I further understand and acknowledge that I have been advised by in writing that: (a) I have the right to and should consult with an attorney prior to executing this Release; (b) I have [twenty-one (21)] days within which to consider this Release, and the Parties agree that such time period to review this Release shall not be extended upon any material or immaterial changes to this Release; (c) I have seven (7) calendar days following my execution of this Release to revoke this Release pursuant to written notice to the [Title] of the Company; (d) this Release shall not be effective until after the revocation period has expired; and (e) nothing in this Release prevents or precludes me from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties, or costs for doing so, unless specifically authorized by federal law. In the event I sign this Release and return it to the Company in less than the [twenty-one (21)] day period identified above, I hereby acknowledge that I have freely and voluntarily chosen to waive the time period allotted for considering this Release. This Release will become effective at 12:01 a.m. on the eighth day after I sign this Release (the “Release Effective Date”). I further understand that I will not be given the post-termination benefits described in Section 1 above unless the Release Effective Date occurs on or before the date that is sixty (60) days following my Termination Date.
4.Terminations; Resignations. I hereby confirm my termination and resignation from all offices, directorships, and other employment positions, if any, then held with the Company and any Related Company, and I shall take all actions reasonably requested by the Company to effectuate the foregoing
5. Representations. I represent and warrant that:
a. I have surrendered to the Company all Company property as required under Section 8(d) of the Agreement;
b. I am not owed wages, commissions, bonuses or other compensation, other than the Accrued Obligations and as set forth in this Release; and
c. During the course of my Employment, I did not sustain any injuries for which I might be entitled to compensation pursuant to worker’s compensation law or I have disclosed any injuries of which I am currently, reasonably aware for which I might be entitled to compensation pursuant to worker’s compensation law.
6. Conditions on Receiving Post-Termination Benefits. I hereby expressly reaffirm my continuing obligations under the Agreement, including, without limitation, Section 8 of the Agreement and Schedule C to the Agreement, if applicable, I agree that any obligation of the Company to pay any post-termination benefits to me shall be subject to my continued compliance with the terms and conditions of the Agreement, including Section 8 of the Agreement and Schedule C to the Agreement, if applicable. If I breach or threaten to breach the Agreement (including, without limitation, Section 8 of this Agreement or Schedule C to the Agreement, if applicable), the Company will be entitled to cease the payment of any severance or benefits to me under the Agreement (other than the Accrued Obligations).
7.No Assignment. I hereby represent and warrant to the Releasees that there has been no assignment or other transfer of any interest in any claim that I may have against the Releasees.
8.Dispute Resolution. To ensure the timely and economical resolution of disputes that arise in connection with this Agreement, the Parties agree that, except as excluded herein, any and all controversies,
claims and disputes arising out of or relating to this Release or the Agreement will be governed by Section 9 of the Agreement.
9.Miscellaneous.
a.Beneficiaries and Assignment. This Release will be binding upon and inure to the benefit of the Parties, and their heirs and successors and permitted assigns. This Release will automatically inure to the benefit of and be enforceable by the Company and any of the Related Companies, and any successors and assigns. I understand I will have no right to assign my rights, benefits, duties, obligations or other interests in this Release as they are personal to me, other than by will or the laws of descent and distribution. Any attempted assignment by me of my rights, benefits, duties, obligations or other interests in this Release in contravention of this Release will be null and void.
b.Entire Understanding. I am not relying upon any representations outside of the Agreement or this Release in deciding to enter into this Release. This Release and the Agreement (inclusive of Schedules thereto) represent the entire understanding between the Company and me with respect to all matters herein.
c.Amendment and Waiver. This Release will not be modified or amended except by another instrument in writing executed by the Parties. Failure of either party at any time to require performance by the other of any provision of this Release will in no way affect the rights of the waiving party to enforce the same thereafter, nor will the waiver by either party of any breach of any provision of this Release be held to be a waiver of any succeeding breach of any provision or a waiver of the provision itself.
d.Applicable Law. This Release will constitute a contract under the internal laws of the State of [_____],1 and will be governed and construed in accordance with the laws of said state as to both interpretation and performance.
e.Severability. My obligations under this Agreement are each separate and severable obligations. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the Company and I consent to the adjudicator’s enforcement of the restrictions to such lesser extent as would make the restriction reasonable and enforceable and/or agree to the reformation of the restriction (for purposes of that jurisdiction only) where such is necessary to make it enforceable to protect the legitimate business interests of the Company. If, despite the foregoing, any provision in this Agreement is adjudicated to be void, illegal or unenforceable, then it will be severed, and all other provisions contained in this Agreement will remain in full force and effect as if the offending provision was never contained in this Agreement.
f.Counterparts / Electronic Signature. This Release may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civ. Code §1633.1, et seq.) or other applicable law) or other transmission method, and any counterpart so delivered shall be deemed to have been duly signed and delivered and be valid and effective for all purposes.
10.Voluntary Execution of Agreement. I understand and agree that I executed this Release voluntarily, without any duress or undue influence on the part or behalf of the Company or any third party, with the full
1 DRAFTING NOTE: Insert governing law of Agreement.
intent of releasing all of my claims against the Company and any of the other Releasees. I acknowledge that: (a) I have read this Release; (b) I have been represented in the preparation, negotiation, and execution of this Release by legal counsel of my own choice or have elected not to retain legal counsel; (c) I understand the terms and consequences of this Release and of the releases it contains; and (d) I am fully aware of the legal and binding effect of this Release.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
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EXHIBIT ONLY – DO NOT SIGN AT THIS TIME
________________________________
Employee’s name
Date: ___________________________
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COMPANY
Callaway Golf Company, a Delaware corporation
By: _____________________________________
Signer’s Name & Title
Date: ______________________________
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EX-10.6
7
a6106deskinsangela-employm.htm
EX-10.6
Document
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is entered into as of May 7, 2026 (the “Effective Date”) by and between Callaway Golf Company, a Delaware corporation, (the “Company”) and me, Angela Deskins, each a “Party” and collectively the “Parties.” References to this “Agreement” shall include all of the Schedules attached hereto.
1.Term. My employment hereunder (“Employment”) shall be for a term (the “Term”) commencing on the Effective Date and continuing indefinitely until terminated in accordance with Section 4 of this Agreement. The date my Employment with the Company ends is referred to as my “Termination Date” irrespective of which Party terminated or why termination occurred. Notwithstanding anything to the contrary in the foregoing, my Employment hereunder is terminable at will by the Company or by me at any time (for any reason or for no reason), subject to the provisions of Section 4 hereof.
2.Position and Duties.
a.During the Term, I will serve in the position designated on Schedule A or in such other position or positions as the Board of Directors of the Company (the “Board”) or its designated representative specifies from time-to-time and shall have the duties, responsibilities and obligations customarily assigned to individuals serving in such position or positions as defined by the Board or its designated representative.
I agree to devote all of my working time and efforts to the performance of my duties for the Company and to faithfully and diligently serve the Company in accordance with this Agreement and the guidelines, policies and procedures of the Company, including its Employee Handbook and Code of Conduct, as such shall be adopted, modified or otherwise established by the Company from time-to-time. This does not prohibit me from managing personal investments or involvement in volunteer charitable or community activities provided that they do not violate the terms of this Agreement or interfere or conflict with the satisfactory performance of my Employment duties in the judgment of the Board or its designated representative. By signing this Agreement, I represent to the Company that (i) I am not currently engaged in any outside business activities for remuneration (whether cash or otherwise), and (ii) providing material assistance to any business, or otherwise pursuing any business opportunity, in each case under this clause (ii) that would create a conflict of interest.
b.I can and will perform all of my Employment duties without the use or disclosure of any trade secrets or otherwise protected information of a third party that I am not authorized by that third party to use for the Company’s benefit. I am subject to no legal obligations, contracts, or other obligations that would prevent me from performing the duties of my position with the Company, nor am I in violation of any such legal obligations.
3.Compensation, Benefits and Expenses. I agree to the compensation and benefits described in Schedule A as full and adequate compensation for my services. I understand that my compensation and benefits are provided subject to the Company policies and procedures generally applicable to all Company employees with adjustments as determined by the Board or its designated representative.
4.Termination and Separation Payment Rights. This Agreement and my Employment under it may be terminated as set forth in this Section 4. Upon any termination of my Employment, I shall be entitled to receive my “Accrued Obligations.” For purposes of this Agreement, “Accrued Obligations” as used throughout this Agreement is defined as (A) earned but unpaid base salary, (B) accrued but unused payments or benefits to which I am entitled under Company benefit plans, including the Company’s retirement, insurance and other benefit and compensation plans or programs then in effect, in accordance with the terms of such plans and programs, and (C) accrued but unused paid time off (“PTO”), if applicable. The Accrued
Obligations described in the preceding sentence shall be paid within thirty (30) days after the Termination Date (or such earlier date as may be required by applicable law).
a.Death or Permanent Disability.
i. My Employment will terminate upon my death. If terminated due to death, then my estate will be paid all of my Accrued Obligations through the Termination Date and I will be eligible to receive the “Death Benefit” described in Schedule B, subject to the requirements set forth therein.
ii. Either the Company or I may terminate my employment following my “Permanent Disability” (as defined in Schedule B). If my Employment is terminated as a result of my Permanent Disability, then I will be paid all of my Accrued Obligations through the Termination Date. In addition, in the event of my termination of Employment as a result of my Permanent Disability, I will be eligible to receive the “Permanent Disability Benefit” described in Schedule B, subject to the requirements set forth therein.
b.Substantial Cause. The Company may terminate my Employment for Substantial Cause. If the Company terminates my Employment for Substantial Cause, then I will be paid my Accrued Obligations through the Termination Date and shall not be entitled to any additional severance or other compensation, including any unvested Long-Term Incentive Awards (unless otherwise provided in the applicable Long-Term Incentive Award agreement). The occurrence of any of the events described in parts (i) – (v) below, as reasonably determined by the Board or its designated representative, shall be “Substantial Cause”:
i.my material breach of any provisions of this Agreement or any other material, written contract with the Company or any Related Company (as defined in Schedule C) or under any code of conduct of the Company or any Related Company);
ii.willful and continued failure by me to substantially perform my duties under this Agreement as determined by the Company’s Chief Executive Officer or by the Board, including failure to cooperate with any internal investigation authorized by the Board or its designated representative or an investigation by regulatory or law enforcement authorities;
iii.intentional misconduct by me (including, but not limited to, misappropriation, fraud, including misconduct related to accounting and financial statements, embezzlement or use or possession of illegal drugs during work) and/or any other action that is damaging or detrimental in a significant manner to the Company or any of the Related Companies;
iv.my conviction (or plea of no contest) for any felony (including, but not limited to, any felony involving fraud, moral turpitude, embezzlement or theft in connection with my duties or in the course of my Employment with the Company), or any comparable offense in any applicable foreign jurisdiction; or
v. my use of alcohol or illicit drugs in a manner that has or would reasonably be expected to have a detrimental effect on my performance, my duties to the Company, or the reputation of the Company or any Related Company.
c.Good Reason. I may terminate my Employment under this Agreement for “Good Reason.” If I terminate my Employment for Good Reason, then I will be paid my Accrued Obligations through the Termination Date, and I will be eligible to receive the benefits provided for in Schedule B for a “Severance Eligible Termination,” subject to the requirements set forth therein.
For purposes of this Agreement, “Good Reason” means the occurrence of any of the following without my prior consent:
i.at any time during the Term (including at any time following the date of a Change in Control), a material breach of this Agreement by the Company; or
ii.at any time during the Term (including at any time following the date of a Change in Control), any material diminishment in the title, position, duties, responsibilities or status that I had with the Company, as a publicly traded entity, immediately prior to such diminishment; provided, however, that prior to a Change in Control, a change in your title or reporting position alone shall not constitute Good Reason; or
iii.at any time during the Term (including at any time following the date of a Change in Control), any requirement that I relocate or any assignment to me of duties that would make it unreasonably difficult for me to maintain the principal residence I had immediately prior to such requirement or assignment, and the parties agree that an increase in my one-way commuting distance by more than thirty-five (35) miles prior to such relocation or assignment as a result of any such relocation or assignment shall be automatically considered unreasonably difficult for purposes of this clause (iii); or
iv.at any time during the Term, a material reduction in my Base Salary or Target Incentive (as defined in Schedule B), or a material reduction in my year-over-year Target LTI Opportunity; or
v.during the twenty-four (24) month period following the date of a Change in Control, any reduction, limitation or failure to pay or provide any of the compensation, reimbursable expenses, Long-Term Incentive Awards (as defined in Schedule B), incentive programs, or other benefits or perquisites provided to me under the terms of this Agreement or any other agreement or understanding between the Company and me, or pursuant to the Company's written policies and past practices.
In order for “Good Reason” for my resignation to exist, the foregoing events must remain uncured for more than thirty (30) days despite my written notice to the Company advising it of such occurrence within ninety (90) days of my becoming aware of the occurrence. I will officially resign no later than ninety (90) days following the earlier of the end of the thirty (30) day cure period or the date the Company provides me with written notice of its intent not to cure the event giving rise to Good Reason. If I do not give the Company written notice of the occurrence of an event listed in this Section within ninety (90) days of my becoming aware of it, or such event is cured by the Company within thirty (30) days after written notification from me regarding such occurrence, I will not have “Good Reason” to terminate my Employment as a result of such occurrence.
d.Resignation without Good Reason. If I terminate my Employment without Good Reason, then I will be paid my Accrued Obligations through the Termination Date and shall not be entitled to any additional severance or other compensation, including any unvested Long-Term Incentive Awards.
e.Termination without Substantial Cause. The Company may terminate my Employment at its discretion at any time without Substantial Cause. If the Company terminates my Employment without Substantial Cause, then I will be paid my Accrued Obligations through the Termination Date, and I will be eligible to receive the benefits provided for in Schedule B for a “Severance Eligible Termination,” subject to the requirements set forth therein.
f.Deemed Resignations. Upon termination of my Employment for any reason, unless otherwise specified in a written agreement between the Company and me, I shall be deemed to have
resigned from all offices, directorships, and other employment positions, if any, then held with the Company and any Related Company, and I shall take all actions reasonably requested by the Company to effectuate the foregoing.
5.Clawbacks and Forfeitures.
a.Notwithstanding anything in this Agreement or any other agreement between me and the Company or any Related Company, I agree that I will be subject to, and any compensation paid to me under this Agreement or otherwise will be subject to, reduction, cancellation, forfeiture and/or recoupment under any clawback policy adopted by the Company from time to time that is, by its terms, applicable to me, including the Policy for Recovery of Erroneously Awarded Compensation adopted by the Company effective October 2, 2023 (the “Clawback Policy”), and any other policy adopted by the Company pursuant to the requirements under Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Rule 10D of the Securities Exchange Act of 1934, as amended, and any rules adopted by the national securities exchange on which the Company’s securities are listed, as such policy(ies) may be amended from time to time. Upon the request of the Company, I also agree without further consideration to execute an amendment evidencing the incorporation of the policies into this Agreement and/or my acknowledgment of the application of such policies to my compensation.
b.If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of my intentional misconduct or gross negligence, with respect to any financial reporting requirement under the United States securities laws, then, if requested to do so by the Board of Directors or the Compensation Committee of the Company, in addition to any rights the Company may have under Section 5(a) above, I will forfeit and reimburse the Company for all of the following: (i) any incentive or incentive compensation paid to me based upon such erroneously stated financial information, (ii) any incentive, incentive compensation or equity compensation I received during the twelve (12) month period following the earlier of the first public issuance or filing with the Securities and Exchange Commission of the financial document embodying the financial reporting requirement, (iii) any profits realized by me personally from the sale of Company securities during that same twelve (12) month period, (iv) if my Employment is terminated or has been terminated, my right to receive Special Severance or Change in Control Special Severance, if applicable, and (v) if I am terminated or have been terminated, any unvested Long-Term Incentive Awards.
c.I understand that the Company’s exercise of the recoupment and forfeiture provisions in this Section 5 will not constitute a breach of the terms of this Agreement by the Company and will not otherwise give me the right to terminate my Employment for Good Reason.
6.Code Section 409A Compliance.
a. I understand and agree that this Agreement has been drafted with the intention to comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and its applicable regulations (“Section 409A”). The Company is hereby advising me to obtain independent advice regarding the tax consequences of any compensation payable under this Agreement and I represent I have done so or have determined not to do so in my discretion despite the Company’s advisement. I acknowledge and agree that the Company will not be liable for and will bear no responsibility for any penalties that may be assessed against me for violation of Section 409A.
b. Notwithstanding any other provision of this Agreement, no severance pay or other benefits payable under this Agreement, that when considered together with any other severance payments or separation benefits, are considered deferred compensation under Section 409A or are
otherwise intended to be exempt from Section 409A pursuant to Section 1.409A-1(b)(9) of the Treasury Regulations issued under Section 409A and are payable upon my termination of employment, will be paid or otherwise provided until I have had a “separation from service” within the meaning of Section 409A. Each payment and benefit payable under this Agreement is intended to constitute a separate payment, and the right to a series of installment payments will be treated as a right to a series of separate payments (including, for the avoidance of doubt, the base salary and annual incentive components of the severance or termination benefits payable in installments pursuant to Schedule B, and each such component shall be treated as a separate payment). To the extent permitted under Section 409A, any separate payment or benefit under this Agreement or otherwise shall not be deemed “nonqualified deferred compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Section 1.409A-1(b)(4), Section 1.409A-1(b)(9) or any other applicable exception or provision of Section 409A.
c. If at the time of my termination of Employment with the Company I am a “specified employee” as defined in Section 409A, then, to the extent required under Section 409A, the Company will not commence payment of any compensation or benefits payable upon my “separation of service” until the date that is six (6) months and one (1) day following my Termination Date (or the earliest date as is permitted under Section 409A). In no event will any payment or benefit under this Agreement that is subject to Section 409A be subject to offset by any other amount unless otherwise permitted by Section 409A.
d. Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A.
d. If and to the extent that reimbursements or other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Section 409A, (i) all such expenses or other reimbursements hereunder will be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred, (ii) any right to reimbursement or in-kind benefits will not be subject to liquidation or exchange for another benefit, (iii) the amount of expenses eligible for reimbursement, or the in-kind benefits provided, during any taxable year will not affect the expenses eligible for reimbursement, or the in-kind benefits to be provided, in any other taxable year, and (iv) any reimbursement will be for expenses incurred during the period of time specified in this Agreement and if no time period is specified, will be for expenses incurred during my lifetime.
7.Code Section 280G.
a. Best Pay Provision. In the event that any payment or benefit received or to be received by me pursuant to the terms of any plan, arrangement or agreement (including any payment or benefit received in connection with a change in ownership or control or the termination of my Employment) (all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject (in whole or part) to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, then the Total Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (after subtracting the amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (after subtracting the net amount of federal, state and local income taxes on such Total Payments and
the amount of Excise Tax to which I would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). Except to the extent that an alternative reduction order would result in a greater economic benefit to me on an after-tax basis, the parties intend that the Total Payments shall be reduced in the following order: (A) reduction of any cash severance payments otherwise payable to me that are exempt from Section 409A of the Code, (B) reduction of any other cash payments or benefits otherwise payable to me that are exempt from Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A of the Code, (C) reduction of any other payments or benefits otherwise payable to me on a pro-rata basis or such other manner that complies with Section 409A of the Code, but excluding any payment attributable to the acceleration of vesting and payment with respect to any equity award that is exempt from Section 409A of the Code, and (D) reduction of any payments attributable to the acceleration of vesting or payment with respect to any equity award that is exempt from Section 409A of the Code; provided, in case of clauses (A), (B) and (C), that reduction of any payments or benefits attributable to the acceleration of vesting of Company equity awards shall be first applied to equity awards with later vesting dates; provided, further, that, notwithstanding the foregoing, any such reduction shall be undertaken in a manner that complies with and does not result in the imposition of additional taxes on me under Section 409A of the Code. The foregoing reductions shall be made in a manner that results in the maximum economic benefit to me on an after-tax basis and, to the extent economically equivalent payments or benefits are subject to reduction, in a pro rata manner.
b. Determinations. All determinations regarding the application of this Section 7 shall be made by an independent accounting firm or consulting group with nationally recognized standing and substantial expertise and experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax retained by the Company prior to the date of the applicable change in ownership or control (the “280G Firm”). For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, and, in calculating the Excise Tax, (i) no portion of the Total Payments shall be taken into account which (A) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (B) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, (ii) no portion of the Total Payments the receipt or enjoyment of which I shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the 280G Firm in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. All determinations related to the calculations to be performed pursuant to this Section 7 shall be done by the 280G Firm. The 280G Firm will be directed to submit its determination and detailed supporting calculations to both the Company and me within fifteen (15) days after notification from either the Company or me that I may receive payments which may be “parachute payments.” The Company and I will each provide the 280G Firm access to and copies of any books, records, and documents as may be reasonably requested by the 280G Firm and otherwise cooperate with the 280G Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Agreement. The fees and expenses of the 280G Firm for its services in connection with the determinations and calculations contemplated by this Agreement will be borne solely by the Company.
8.Restrictive Covenants.
a.Confidential Information.
i.The Company will entrust me with Confidential Information related to my fiduciary position of trust and confidence with the Company based on the commitments I am making in this Agreement and would not do so without the promises I am making in this Agreement. “Confidential Information” means information, or a compilation of information, in any form (tangible or intangible), related to the Company’s or any of the Related Companies’ business and of value to it that I first acquire or gain access to as a consequence of my Employment with the Company if the Company has not made it public or authorized public disclosure of it and it is not readily available through lawful and proper means to the public or others in the industry who have no obligation to keep it confidential. Confidential Information includes, but is not limited to: the Company’s business plans, financial information and analysis, customer and prospective customer lists, employee lists, marketing plans and strategies, research and development data, buying practices, vendor lists, internal business methods, techniques, technical data, know-how, innovations, computer programs, un-patented inventions, trade secrets, and information about the business affairs of third parties (including, but not limited to, customers, licensors and suppliers) that such third parties provide to the Company in confidence. Due to its special value and utility as a compilation, a confidential compilation (like a customer list) will remain protected as Confidential Information even if some items of information within the list are in the public domain. Private disclosure of otherwise Confidential Information to parties the Company is doing business with for business purposes will not cause the information to lose its protected status under this Agreement.
ii.During my Employment and for so long thereafter as the information qualifies as “Confidential Information” under this Agreement, I will not engage in any use or disclosure of Confidential Information that is not authorized by the Company and undertaken for the benefit of the Company, except as may be permitted under Section 8(f) below. These obligations do not prohibit my use of generally available knowledge, skill and education that is not specific to the Company or its business relationships but is instead knowledge generic to the industry or my profession. I will comply with all Company policies and directives concerning my use, storage, and transfer of Confidential Information. Unless prohibited by law from doing so, I will notify the Company as quickly as possible after being served with a subpoena, order, or other legal mandate requiring the production of Confidential Information so that the Company can take reasonable steps to protect its interests.
b.Intellectual Property.
i.I understand that I am being employed and paid to use all of my abilities, including my creative and inventive skills, for the benefit of the Company. Accordingly I agree that any inventions, improvements, discoveries, ideas, concepts, trademarks, service marks, trade names, copyright eligible works of authorship and mask works (hereinafter referred to collectively as “Intellectual Property”) that I develop, discover, conceive or create while employed with the Company or providing services to a Related Company, alone or with others, during regular working hours or outside of them, that either: (A) relates to the business of the Company or the Related Company or their actual or demonstrably anticipated research and development, (B) is developed or discovered with the assistance of Confidential Information, tools, equipment, personnel or other resources of the Company or a Related Company, or (C) is suggested by, related to, or result from any work performed by me for the Company or a Related Company; will be deemed “Work Product.” I hereby fully and finally assign to the Company all right, title and interest in and to all of my Work Product. My Work Product will be the property of the Company from the date of conception, irrespective of when, how, or if it is ever reduced to tangible form or practice. My assignment of Work Product shall include assignment to the Related Company where the interests of a Related Company are involved as determined by the Company. Notwithstanding the forgoing, nothing in this Agreement creates or requires assignment of an invention that cannot be assigned in an employment agreement under controlling law where controlling state law has such a limitation.
ii.All original works of authorship made by me, solely or jointly with others, while employed with the Company that relate to the Company’s line of business will be considered something done within the scope of my Employment and thus “work made for hire” under the Copyright Act of 1976 (17 U.S.C. § 101) and all comparable laws throughout the world. All ownership and copyrights in this “work for hire” will belong exclusively to the Company or its designee, and to the extent any rights therein are not automatically conveyed to the Company they will be deemed assigned to the Company. In this respect, the covered original works of authorship are also Work Product. Original works of authorship (“Work Products”) covered by the foregoing are understood to include, without limitation, all writings, source code, computer programs, algorithms, photos, images, drawings, branding concepts, and other work product of any nature whatsoever consisting of copyrightable subject matter. I waive all claims I may now or hereafter have to rights of paternity, integrity, disclosure and withdrawal, artists’ rights, and any other rights that may be known as “moral rights” with respect to the above-referenced work made for hire, Work Product, and all derivative works thereof.
iii. I will, during and after my Employment, execute all documents, and will assist the Company in every reasonable and proper way, to obtain and enforce patents, trademark registrations, service mark registrations and copyrights for the Intellectual Property in any and all countries. The Company will pay the expenses for obtaining and enforcing these patents, trademark registrations, service mark registrations, and copyrights. If I retain ownership of any item of Intellectual Property or copyright eligible work that is incorporated into a Company product or service (an item of “Incorporated IP”), I grant to the Company, a non-exclusive, fully paid (royalty-free) and irrevocable worldwide license to incorporate into its products and services, reproduce, make derivative works of, sell, and otherwise use the Incorporated IP.
iv. I acknowledge notice that if I reside and work for the Company in California then my assignment of inventions that qualify as Work Product under Sections 8(b)(i) – (iii) above shall not include inventions which cannot be assigned under California Labor Code §2870; and I acknowledge notice that California Labor Code §2870 provides that: “(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer.”
c.Non-Disparagement. I will not during my Employment with the Company, any applicable Special Severance Period or Change in Control Special Severance Period, and for the twelve (12) months following the later of (i) the date of my termination of Employment or (ii) the last day of any Special Severance Period or Change in Control Severance Period (regardless of whether I receive any severance benefits in a lump sum), in any way undertake to disparage, demean, or cast in a false, misleading or negative light, the Company, its products, services, officers, directors, employees, agents, affiliates, vendors, or customers, or their successors, or in any other way publish negative statements about them or exhibit an attitude of hostility toward them; provided, however, that nothing herein will prohibit me from providing truthful testimony in a legal proceeding or prohibit conduct that is protected conduct under Section 8(f) below.
d.Use and Return of Company Property. All records related to the Company’s business activities and business development efforts made by me in the course of my Employment (such as contact lists, prospect lists, calendars and notes) wherever stored (in email, text messages, cell phones, computers or otherwise) are the property of the Company. I am not authorized to access and use the Company’s computers, email, or related computer systems to pursue competitive business interests. I will preserve records of Company customers, prospects, suppliers, and other business relationships, and will not knowingly use these records to harm the Company’s business interests. Upon termination of my Employment, I will return all such records, and any copies (tangible and intangible) to the Company. Upon request, I will provide the Company reasonable means to access and verify that no Confidential Information or other Company property has been retained by me on personal computers, cell phones, email or cloud storage accounts to the extent such devices or accounts were used by me in connection with my Employment or the Company’s business, or in any other place that is subject to my ownership or control. The Company shall have the right, at its option, to require me to vacate my office or otherwise remain off the Company’s premises and to cease any and all activities on the Company’s behalf without such action constituting a termination of my Employment or a breach of this Agreement.
e.Conflicting Activities. I agree that I am subject to the prohibitions of Schedule C (as defined therein) on the terms and conditions set forth therein. The Company is herein advising me to consult with an attorney before signing this Agreement and becoming bound by the obligations herein, including in Schedule C.
f.Protected Conduct. I understand that nothing in this Agreement prohibits me from communicating directly with, cooperating with, or providing information to, or receiving financial awards from, any federal, state or local government agency (including, without limitation, the Securities and Exchange Commission or the National Labor Relations Board), without notifying or seeking approval from Company before doing so, nor does it prohibit discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that I have reason to believe is unlawful, or exercising any rights I may have under Section 7 of the National Labor Relations Act. I acknowledge notice that pursuant to the Defend Trade Secrets Act (“DTSA”): (i) no individual (consultant, contractor or employee) will be held criminally or civilly liable under Federal or State trade secret law for the disclosure of a trade secret that: (A) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and made solely for the purpose of reporting or investigating a suspected violation of law; or, (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and (ii) an individual who pursues a lawsuit for
retaliation by an employer for reporting a suspected violation of the law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order. The foregoing will not be construed to invite, permit, or limit liability for otherwise illegal activity such a breaking and entering, illegal computer access (hacking) or theft of the Company property.
9.Dispute Resolution. To ensure the timely and economical resolution of disputes that arise in connection with this Agreement, the Parties agree that, except as excluded herein and as set forth in Section 8(f), any and all controversies, claims and disputes arising out of or relating to this Agreement, including without limitation any alleged violation of its terms, or otherwise arising out of or relating to my Employment relationship with the Company or any of the Related Companies, shall be resolved solely and exclusively by final and binding arbitration, before a single neutral arbitrator, held in San Diego County, California through JAMS in conformity with California law and the then-existing JAMS employment arbitration rules, which can be found at https://www.jamsadr.com/rules-employment-arbitration/, or which will be provided upon reasonable request to the Company’s human resources department. The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. shall govern the interpretation and enforcement of this arbitration clause. All remedies available from a court of competent jurisdiction shall be available in the arbitration; provided, however, that either Party may request temporary or preliminary injunctive relief, to the extent permitted by applicable law, from a court of competent jurisdiction if such relief is not available or not available in a timely fashion through arbitration. The arbitrator shall: (a) provide adequate discovery for the resolution of the dispute; and (b) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award. For any claim arising under this Agreement, the arbitrator may award the prevailing Party reasonable attorneys’ fees, cost, and expert fees, if any, and, to the extent provided by applicable law may award reasonable attorneys’ fees, costs, and expert fees on any other claim. The Parties understand that by agreement to arbitrate any claim pursuant to this Section 9, they will not have the right to have any claim subject to arbitration decided by a jury or a court but shall instead have any claim decided through arbitration. Each Party waives any constitutional or other right to bring claims covered by this Agreement other than in their individual capacities. Except as may be prohibited by applicable law, the foregoing waiver includes the ability to assert claims as a plaintiff or class member in any purported class or collective action or representative proceeding. Neither Party may bring any arbitration on a class, collective or representative basis. In the event that any arbitration to which I am a party qualifies as a “Mass Arbitration” under the terms of the then current JAMS Mass Arbitration Procedures and Guidelines, the current version of which can be found at https://www.jamsadr.com/mass-arbitration-procedures, the then current JAMS Mass Arbitration Procedures and Guidelines shall be applied. I further agree that any dispute brought by me against the Company’s parents, subsidiaries, affiliates, officers, directors, or employees, arising out of or relating to my Employment by the Company, shall be subject to arbitration under this Agreement, and such person or entity may enforce this provision as intended third party beneficiaries. Nothing herein shall limit my ability to pursue claims for workers compensation or unemployment benefits or pursue other claims which by law cannot be subject to mandatory arbitration.
10.Miscellaneous.
a.Taxes. I acknowledge that I am responsible for all taxes owed by me related to my compensation and benefits. The amounts payable pursuant to this Agreement and the attached Schedules are subject to all applicable federal and state tax and required withholding.
b.Beneficiaries and Assignment. This Agreement will be binding upon and inure to the benefit of the Parties, and their heirs and successors. This Agreement will automatically inure to the benefit of and be enforceable by the Company and any of the Related Companies, and any successors and assigns. If I become employed with a Related Company without signing a new agreement, the Related Company will step into Company’s position under this Agreement and will be entitled to the same protections and enforcement rights as the Company. I agree to the assignment of this Agreement and all rights and obligations hereunder, including, but not limited to, an assignment in
connection with any merger, sale, transfer or acquisition consummated by the Company or any of its subsidiaries, affiliates or divisions, or relating to all or part of its assets or the assets of its subsidiaries, affiliates or divisions. The Company will cause any such successor to the Company to assume the Company’s obligations under this Agreement, and a failure by the Company to obtain the assumption of this Agreement by any successor to the Company of all or substantially all of the Company's assets or business shall be deemed a material breach of this Agreement. I understand I will have no right to assign my rights, benefits, duties, obligations or other interests in this Agreement as they are personal to me, other than by will or the laws of descent and distribution. Any attempted assignment by me of my rights, benefits, duties, obligations or other interests in this Agreement in violation of this Agreement will be null and void.
c.Entire Understanding. The Parties are relying upon no representations outside of this Agreement in deciding to enter into this Agreement. This Agreement (inclusive of Schedules) is the entire understanding between the Company and me with respect to all matters herein; provided, however, that this Agreement shall be construed to supplement and not eliminate, supersede or replace my current “Employee Invention and Confidentiality Agreement” or any other agreement containing any restriction on my use of the Confidential Information or trade secrets of the Company and its Related Companies, which prior agreements shall be construed to compliment and not conflict with this Agreement with the understanding that if any irreconcilable conflict between the agreements should arise, this Agreement will control (unless any such prior agreement imposes a post-termination noncompetition or nonsolicitation covenant, in which case this Agreement shall supersede any such covenant if I reside in the State of California at the time I execute this Agreement or if, any time during the term of my Employment, I am a resident of California). Further still, to the extent I have entered into any other agreements as part of the sale or acquisition of a business or business assets that have restrictive covenants, such agreements and the restrictive covenants therein will survive and stand independent from and unaffected by this Agreement. As of the Effective Date, except as otherwise explicitly provided herein, this Agreement replaces and supersedes any and all prior understandings or agreements between the Company or any Related Company and me regarding my Employment, including without limitation, any employment agreement or offer letter between the Company or any Related Company and me or any of its affiliates in effect prior to the Effective Date.
d.Amendment and Waiver. This Agreement will not be modified or amended except by another instrument in writing executed by the Parties. Failure of either party at any time to require performance by the other of any provision of this Agreement will in no way affect the rights of the waiving party to enforce the same thereafter, nor will the waiver by either party of any breach of any provision of this Agreement be held to be a waiver of any succeeding breach of any provision or a waiver of the provision itself.
e.Notices. Any notice, request, demand, or other communication required or permitted hereunder, shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by email upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt, to me at the most recent address listed in the Company’s personnel records, and to the Company at the address below:
Callaway Golf Company
2180 Rutherford Road
Carlsbad, California 92008
Attn: General Counsel
f.Applicable Law. This Agreement will constitute a contract under the internal laws of the State of California and will be governed and construed in accordance with the laws of said state as to both interpretation and performance.
g.Severability. My obligations under this Agreement are each separate and severable obligations. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the Company and I consent to the adjudicator’s enforcement of the restrictions to such lesser extent as would make the restriction reasonable and enforceable and/or agree to the reformation of the restriction (for purposes of that jurisdiction only) where such is necessary to make it enforceable to protect the legitimate business interests of the Company. If, despite the foregoing, any provision in this Agreement is adjudicated to be void, illegal or unenforceable, then it will be severed, and all other provisions contained in this Agreement will remain in full force and effect as if the offending provision was never contained in this Agreement.
h.Survival. Unless otherwise expressly agreed by the Company and me in writing, my obligations under this Agreement will, in accordance with their terms, be unaffected by any change in position, title, duties, or other terms and conditions of my Employment. My post-Employment obligations will survive the termination of my Employment and/or this Agreement. The existence of a claim by me against the Company, whether predicated on this Agreement or otherwise, will not relieve me of my obligation to comply with the restrictions on my conduct provided for in this Agreement or make them unenforceable.
i.Counterparts / Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civ. Code §1633.1, et seq.) or other applicable law) or other transmission method, and any counterpart so delivered shall be deemed to have been duly signed and delivered and be valid and effective for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
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/s/ Angela Deskins_________________________
Angela Deskins
Date: 4-15-2026_________________________
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COMPANY
Callaway Golf Company, a Delaware corporation
By: /s/ Brian P. Lynch_______________________
Brian P. Lynch, Executive Vice President,
Chief Financial Officer, Chief Legal Officer
Date: 5/7/26_________________________
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SCHEDULE A
Compensation and Benefits
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule A:
A-1.Compensation, Benefits and Expenses.
a.Position. Executive Vice President, Chief People Officer, reporting to Chief Executive Officer.
b.Base Salary. $400,000.00 per year. In accordance with the Company’s usual payroll practices, the Company will pay me an annual base salary at the rate described herein (prorated for any partial years of Employment), payable in substantially equal installments on regularly scheduled Company pay dates. My base salary will be reviewed on an annual basis by the Board or its designated representative. The Company reserves the right to increase my base salary pursuant to the Company’s employee compensation practices and policies in effect from time to time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my base salary rate (as the same may be increased during my employment) without my prior written consent.
c.Annual Incentive. I am eligible for a discretionary annual incentive payment based upon participation in the Company’s applicable incentive program as it may or may not be in effect from time-to-time. My annual target incentive percentage is 60% of the actual annual base salary paid to me during the applicable calendar year for which such annual incentive is earned (the “Target Incentive”). Any annual incentive payment earned pursuant to an applicable incentive plan will be paid in accordance with the Company’s then current payroll practices in the first quarter of the year following the end of the Company’s fiscal year to which the annual incentive relates, provided that, except as provided in Schedule B, the annual incentive will not be earned and payable unless I am actively employed in good standing, and have not given, or received, notice of termination of Employment as of the date the annual incentive is paid. The Company reserves the right to increase my Target Incentive pursuant to the Company’s employee compensation practices and policies in effect from time-to-time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my Target Incentive (as the same may be increased during my employment) without my prior written consent.
d.Long-Term Incentives. Subject to approval of the Board or its designated representative, the Company will provide me an opportunity to participate in the Company’s long-term incentive programs under which I may be eligible in accordance with the terms of such programs as in effect from time to time and as may be amended in the sole and absolute discretion of the Company (the “Long-Term Incentive Plans”). My participation in the Long-Term Incentive Plans will be governed by the terms of the Long-Term Incentive Plans, including the notice and grant agreement specific to each Long-Term Incentive Plan award I am awarded. My annual target opportunity under the Company’s Long-Term Incentive Plans (my “Target LTI Opportunity”) will be established annually by the Board or its designated representative. The Company reserves the right to increase my Target LTI Opportunity pursuant to the Company’s Long-Term Incentive Plans in effect from time to time without requiring an amendment of this Agreement through the use of a Personnel Action Request, but in no event shall the Company reduce my Target LTI Opportunity (as the same may be increased during my employment) without my prior written consent.
e.Benefit Plans. The Company will offer me participation in the various employee benefit plans it sponsors such as health and welfare coverage, qualified retirement plans and other insured benefits applicable to my position and subject to my eligibility to participate under the terms of such plans.
f.Paid Time Off/Sick Time. I am eligible to accrue PTO up to the maximum accruals set by the Company in accordance with the terms and conditions of the Company’s PTO Program and as set forth in the most recent “Executive Benefits Summary” provided to me by the Company under separate cover, as may be amended from time-to-time in the Company’s sole and absolute discretion. Accrued PTO may be taken any time during the year subject to prior approval by the Company. I am eligible for paid sick leave days (“Sick Leave”) in accordance with applicable state or local law.
g.Other Perquisites. The Company may provide other perquisites to me from time-to-time as determined by the Company, including those described in the most recent Executive Benefits Summary.
h.Business Expenses. The Company shall reimburse me for the reasonable, customary and necessary expenses I incur in the performance of my duties. My reimbursement for such business expenses is contingent on my compliance with the Company’s expense reimbursement policies as may be in effect from time to time.
SCHEDULE B
Termination Benefits
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule B:
B-1. Severance Benefits.
a.Severance Eligible Termination. If the Company terminates my Employment without Substantial Cause, or if I voluntarily terminate my Employment with the Company for Good Reason, then it will be deemed a “Severance Eligible Termination.” Subject to Sections B-4 and B-6 below, if the termination of my Employment with the Company constitutes a Severance Eligible Termination, in addition to the Accrued Obligations, I will be provided the following “Special Severance”:
i.A one-time, lump-sum payment based on the annual incentive payment I would have received in the then-current year, based on the Company’s actual performance as measured against the requirements of the annual incentive plan, pro-rated to my Termination Date (the “Pro-Rata Incentive Plan Payment”);
ii.The vesting of my unvested long-term incentive compensation awards (e.g., restricted stock units, performance shares, stock appreciation rights, stock options, and other long-term equity-based incentive awards) (“Long-Term Incentive Awards”) that would have vested had I continued to be employed pursuant to this Agreement for a period of twelve (12) months from the Termination Date; provided that any unvested Long-Term Incentive Awards that are subject to performance-based vesting will vest in accordance with this Section B-1(a)(ii) only if, and to the degree that, the performance goals are satisfied in accordance with the terms of the applicable Long-Term Incentive Plan and award agreement thereunder. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-1(a)(ii));
iii.A severance payment equal to the sum of (A) 1.0 time my most recent annual base salary, plus (B) 1.0 time my annual target incentive for the year of termination (calculated for this purpose by multiplying my annual target incentive percentage specified in Schedule A by my most recent annual base salary), payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of twelve (12) months from the Termination Date (the “Special Severance Installments” and such period, the “Special Severance Period”);
iv.for a period of twelve (12) months (or, if earlier, (A) the date on which the applicable continuation period under COBRA and/or Cal-COBRA expires or (B) the date I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment) (such period, the “Assistance Period”), if I and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date elect to have COBRA and/or Cal-COBRA coverage and are eligible for such coverage, the Company shall pay or reimburse me, at its election, on a monthly basis, for an amount equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for myself and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date; provided, however, that, if the Company determines, in its sole discretion, that the Company cannot provide healthcare continuation benefits under this sentence during the Assistance Period without potentially violating or causing the Company to incur financial costs or penalties under applicable law
(including, without limitation, Section 2716 of the Public Health Service Act), the Company shall, in lieu thereof, pay me a monthly taxable cash payment during the Assistance Period (or any remaining portion thereof) equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents (the “Taxable Assistance Period Payments”). In lieu of providing healthcare continuation benefits during the Assistance Period pursuant to the preceding sentence, the Company may elect, at the time of my Severance Eligible Termination, to instead provide me with a one-time, taxable lump-sum payment intended to assist with the post-termination healthcare costs for me and my dependents (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) twelve (12) months (the “Lump Sum Assistance Payment”). If I am paid a Lump Sum Assistance Payment, I will receive the Lump Sum Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Lump Sum Assistance Payment for any purpose in my discretion. I will notify the Company immediately if I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment during the Assistance Period;
v.Continuation of any financial, tax and estate planning services (on the then-existing terms and conditions) through the period during which I am receiving the Special Severance Installments; and
vi.Up to one year of outplacement services through a professional outplacement firm of the Company’s choosing.
The Lump Sum Assistance Payment (if applicable), as well as the vesting of any time-based Long-Term Incentive Awards described in Section B-1(a)(ii), will be made as soon as administratively practicable following the date my Release (as defined below) becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date; the Pro-Rata Incentive Plan Payment, as well as the vesting of any performance-based Long-Term Incentive Awards described above, will be made at such time and in such manner as such performance based payments are regularly made by the Company after the completion of the relevant performance period and the evaluation of whether, and the degree to which, the performance criteria have been met (but in all events, the Pro-Rata Incentive Plan Payment described in Section B-1(a)(i) will be paid no later than March 15 of the calendar year following the year in which my Termination Date occurs and the settlement of such performance-based Long-Term Incentive Awards will occur no later than March 15 of the calendar year following the year in which such awards are no longer subject to a “substantial risk of forfeiture” (as defined in Section 409A)); and the Special Severance Installments and Taxable Assistance Period Payments (if applicable) will commence as soon as administratively practicable following the date the Release becomes effective and irrevocable, but in no event later than the first regularly scheduled payroll date thereafter, and the Special Severance Installments and Taxable Assistance Period Payments (if applicable) shall be paid over time as described above following the effective date of the Release. None of the payments described in this Section B-1 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the effective date of the Release will accrue and be paid as soon as administratively practicable in accordance with the preceding sentence. Except as otherwise provided in this Agreement, I am not eligible for any other payments in connection with my termination of Employment as a result of a Severance Eligible Termination.
a.Severance Eligible Termination Within Twenty-Four Months Following a Change in Control. Subject to Sections B-4 and B-6 below, in the event my Employment is terminated as a result of a
Severance Eligible Termination within the twenty-four (24) month period following a Change in Control (as defined below), in addition to the Accrued Obligations, I will be provided the following “Change in Control Special Severance”:
i.The Special Severance amounts in Section B-1(a) above; provided, however, the Special Severance Installments will consist of the sum of (A) 2.0 (instead of 1.0) times the sum of my most recent annual base salary plus 2.0 (instead of 1.0) times my annual incentive target for the year of termination (calculated for this purpose by multiplying my annual target incentive percentage specified in Schedule A by my most recent annual base salary), payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of twenty-four (24) months from the Termination Date (such period, the “Change in Control Special Severance Period”); provided, further, that the Assistance Period (or the number of months to be covered by any Lump Sum Assistance Payment) will be equal to a period of twenty-four (24) months from the Termination Date. All other Special Severance elements will be payable in accordance with Section B-1(a) above; and
ii.In lieu of the Special Severance in Section B-1(a)(ii) above, (A) the vesting of all of my unvested time-based Long-Term Incentive Awards that vest solely based on my continued employment or service (including awards for which the performance objectives have been satisfied but which remain subject to time-based vesting following the end of the applicable performance period) shall be accelerated effective as of the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date, and (ii) the vesting of all of my unvested Long-Term Incentive Awards that are subject to performance-based vesting (e.g., performance stock units) will vest at the target performance level effective as of the date my Release becomes effective and irrevocable (unless the level of performance was determined at the time of the Change in Control at a higher achievement level in accordance with the applicable award agreement, in which case such higher achievement level shall apply), but in no event later than seventy (70) days after the Termination Date. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-1(b)(ii); and
iii.In addition to the Special Severance in Section B-1(a)(iv) above, I will receive a one-time, taxable lump-sum payment intended to assist with a portion of the post-termination healthcare costs for me and my dependents not covered under Section B-1(a)(iv) above (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) six (6) months (the “Change in Control Supplemental Lump Sum Assistance Payment”). If I am paid a Change in Control Supplemental Lump Sum Assistance Payment, I will receive the Change in Control Supplemental Lump Sum Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Change in Control Supplemental Lump Sum Assistance Payment for any purpose in my discretion. The Change in Control Supplemental Lump Sum Assistance Payment will be made as soon as administratively practicable following the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date.
b.Other Benefits. I agree that payment of Special Severance or Change in Control Special Severance pursuant to this Section B-1 shall be in lieu of, and not in addition to, any other payment that I might otherwise be entitled to, including, but not limited to, payments under any state or federal
Worker Adjustment and Retraining Notification Act, any similar statute, or as provided for under common law.
B-2. Permanent Disability Benefits.
a.Subject to Sections B-4 and B-6 below, in the event my Employment is terminated as a result of my “Permanent Disability” (as defined below), in addition to the Accrued Obligations, I will be provided the following “Permanent Disability Benefit”:
i.A payment equal to 0.500 times my most recent annual base salary, payable in substantially equal installments on the same pay schedule as in effect at the Termination Date over a period of six (6) months from the Termination Date (the “Disability Installments”);
ii.A Pro-Rata Incentive Plan Payment;
iii.The vesting of my unvested Long-Term Incentive Awards that would have vested had I continued to be employed pursuant to this Agreement for period of twelve (12) months from the Termination Date; provided that any unvested Long-Term Incentive Awards that are subject to performance-based vesting will vest in accordance with this Section B-2(a)(iii) only if, and to the degree that, the performance goals are satisfied in accordance with the terms of the applicable Long-Term Incentive Plan and award agreement thereunder. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-2(a)(iii)); and
iv.for a period of twelve (12) months (or, if earlier, (A) the date on which the applicable continuation period under COBRA and/or Cal-COBRA expires or (B) the date I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment) (such period, the “Disability Assistance Period”), if I and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date elect to have COBRA and/or Cal-COBRA coverage and are eligible for such coverage, the Company shall pay or reimburse me, at its election, on a monthly basis, for an amount equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for myself and/or my eligible dependents who were covered under the Company’s healthcare plans as of the Termination Date; provided, however, that, if the Company determines, in its sole discretion, that the Company cannot provide healthcare continuation benefits under this sentence during the Disability Assistance Period without potentially violating or causing the Company to incur financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company shall, in lieu thereof, pay me a monthly taxable cash payment during the Disability Assistance Period (or any remaining portion thereof) equal to the monthly premium I am required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents (the “Taxable Disability Assistance Period Payments”). In lieu of providing healthcare continuation benefits during the Disability Assistance Period pursuant to the preceding sentence, the Company may elect, at the time of my termination of Employment as a result of my Permanent Disability, to instead provide me with a one-time, taxable lump-sum payment intended to assist with the post-termination healthcare costs for me and my dependents (based on the level of healthcare benefits my dependents and/or I are enrolled as of the Termination Date) equal to (A) the total monthly premium I would be required to pay for continuation coverage pursuant to COBRA and/or Cal-COBRA for me and/or my eligible dependents as of the Termination Date multiplied by (B) twelve (12) (the “Lump Sum
Disability Assistance Payment”). If I am paid a Lump Sum Disability Assistance Payment, I will receive the Lump Sum Disability Assistance Payment regardless of whether I elect COBRA continuation coverage under the Company’s plans and I understand I may use the Lump Sum Disability Assistance Payment for any purpose in my discretion. I will notify the Company immediately if I become eligible to receive the equivalent or increased healthcare coverage by means of subsequent employment or self-employment during the Disability Assistance Period.
The Lump Sum Disability Assistance Payment (if applicable), as well as the vesting of any time-based Long-Term Incentive Awards described in Section B-2(a)(iii), will be made as soon as administratively practicable following the date my Release becomes effective and irrevocable, but in no event later than seventy (70) days after the Termination Date; the Pro-Rata Incentive Plan Payment, as well as the vesting of any performance-based Long-Term Incentive Awards described above, will be made at such time and in such manner as such performance based payments are regularly made by the Company after the completion of the relevant performance period and the evaluation of whether, and the degree to which, the performance criteria have been met (but in all events, the Pro-Rata Incentive Plan Payment described in Section B-2(a)(ii) will be paid no later than March 15 of the calendar year following the year in which my Termination Date occurs and the settlement of such performance-based Long-Term Incentive Awards will occur no later than March 15 of the calendar year following the year in which such awards are no longer subject to a “substantial risk of forfeiture” (as defined in Section 409A)); and the Disability Installments and Taxable Disability Assistance Period Payments (if applicable) will commence as soon as administratively practicable following the date the Release becomes effective and irrevocable, but in no event later than the first regularly scheduled payroll date thereafter, and the Disability Installments and Taxable Disability Assistance Period Payments (if applicable) shall be paid over time as described above following the effective date of the Release. The Permanent Disability benefits provided pursuant to this Section B-2 will be coordinated with other applicable disability insurance as required by the applicable policies. None of the payments described in this Section B-2 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the effective date of the Release will accrue and be paid as soon as administratively practicable in accordance with the preceding sentence. Except as otherwise provided in this Agreement, I will not be entitled to any payments or benefits under Section B-1 as a result of such termination of my Employment by the Company following my Permanent Disability, which shall be considered a termination for Substantial Cause.
For purposes of this Agreement, “Permanent Disability” shall mean my failure to perform or being unable to perform all or substantially all of my duties under this Agreement for a continuous period of six (6) months or more on account of any physical or mental disability, as reasonably determined by the Company or as reflected in the opinion of a qualified physician selected by the Company, provided that, to the extent required under Section 409A, such disability or impairment also qualifies as a “disability” for purposes of Section 409A. The existence of my Permanent Disability shall be determined by the Company in good faith.
B-3. Death Benefits. In the event of my death, in addition to the Accrued Obligations, all my outstanding unvested time-based Long-Term Incentive Awards will immediately vest and be settled as soon as administratively practicable but in no event later than seventy (70) days after the date of my death. The foregoing provisions are hereby deemed to be a part of each Long-Term Incentive Award (and, for the avoidance of doubt, if any Long-Term Incentive Award is subject to more favorable vesting pursuant to any agreement or Long-Term Incentive Plan governing such Long-Term Incentive Award, such more favorable provisions shall continue to apply and shall not be limited by this Section B-3). The foregoing benefit is referred to as the “Death Benefit.”
B-4. Requirement for a Release. The Company’s obligation to provide me the severance or any other benefits payable under Sections B-1 and B-2, other than my Accrued Obligations through the Termination
Date, will be conditioned on my (or my representatives if I am unable to sign due to my Permanent Disability) signing a release agreement in the form attached to the Agreement as Schedule D within the time period set forth therein) that, among other things, (a) contains an effective release of any and all claims in favor of the Company and any of the Related Companies, and (b) secures my commitment to abide by all post-Employment obligations applicable to me under this Agreement (referred to hereafter as my “Release”). If, for any reason, my Release does not become effective and irrevocable within sixty (60) days following my Termination Date, I will not be entitled to any payments or benefits pursuant to Sections B-1 and B-2 and will forfeit all rights thereto; however, the Accrued Obligations through the Termination Date will be paid. Additionally, none of the payments or benefits pursuant to Sections B-1 and B-2 will be paid or otherwise delivered prior to the effective date of the Release, so that amounts otherwise payable prior to the Release effective date will accrue and be paid as provided in this Schedule B.
B-5. Other. Except for the Accrued Obligations and the amounts specifically provided pursuant to this Schedule B, I shall not be entitled to any further compensation, incentive, damages, restitution, relocation benefits, or other severance benefits upon my termination of Employment. The amounts payable to me pursuant to this Schedule B shall not be treated as damages, but as compensation to which I may be entitled by reason of my termination of Employment under the applicable circumstances. The Company shall not be entitled to set off against the amounts payable to me pursuant to this Schedule B any amounts earned by me in other employment after termination of my Employment with the Company, or any amounts which might have been earned by me in other employment had I sought such other employment. The provisions of this Schedule B shall not limit my rights under or pursuant to any other agreement or understanding with the Company regarding any pension, insurance or other employee benefit plan of the Company to which I am entitled pursuant to the terms of such plan.
B-6. Conditions on Receiving Post-Termination Benefits. My right to all payments or benefits under this Schedule B shall in all events be subject to Sections 6 (Code Section 409A) and 7 (Code Section 280G) of the Agreement. In addition, notwithstanding anything else to the contrary, it is expressly understood that any obligation of the Company to pay any post-termination benefits pursuant to this Schedule B shall be subject to my continued compliance with the terms and conditions of this Agreement, including Section 8 of the Agreement and Schedule C, if applicable. If I breach or threaten to breach this Agreement (including, without limitation, Section 8 of this Agreement or Schedule C, if applicable), the Company will be entitled to cease the payment of any severance or benefits under this Schedule B (other than the Accrued Obligations).
B-7. Definition of Change in Control. For purposes of this Agreement “Change in Control” is defined as a circumstance where:
a.any person, entity or group, within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) but excluding the Company and its subsidiaries and any employee benefit or stock ownership plan of the Company or its subsidiaries and also excluding an underwriter or underwriting syndicate that has acquired the Company’s securities solely in connection with a public offering thereof (such person, entity or group being referred to herein as a “Person”) becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either the then outstanding shares of the common stock of the Company or the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors; or
b.individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board, provided that any individual who becomes a director after the Effective Date whose election, or nomination for election by the Company’s shareholders, is approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered to be a member of the Incumbent Board unless that individual was nominated or elected by any Person having the power to exercise, through beneficial ownership, voting agreement and/or proxy, 20% or more of either the outstanding
shares of the common stock of the Company or the combined voting power of the Company’s then outstanding voting securities entitled to vote generally in the election of directors, in which case that individual shall not be considered to be a member of the Incumbent Board unless such individual’s election or nomination for election by the Company’s shareholders is approved by a vote of at least two-thirds of the directors then comprising the Incumbent Board; or
c.consummation by the Company of the sale or other disposition of all or substantially all of the Company’s assets or a reorganization or merger or consolidation of the Company with any other Person, other than (A) a reorganization or merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto (or, in the case of a reorganization or merger or consolidation that is preceded or accomplished by an acquisition or series of related acquisitions by any Person, by tender or exchange offer or otherwise, of voting securities representing 50% or more of the combined voting power of all securities of the Company, immediately prior to such acquisition or the first acquisition in such series of acquisitions) continuing to represent, either by remaining outstanding or by being converted into voting securities of another entity, more than 50% of the combined voting power of the voting securities of the Company or such other entity outstanding immediately after such reorganization or merger or consolidation (or series of related transactions involving such a reorganization or merger or consolidation), or (B) a reorganization or merger or consolidation effected to implement a recapitalization or reincorporation of the Company (or similar transaction) that does not result in a material change in beneficial ownership of the voting securities of the Company or its successor.
Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to any amount hereunder that provides for the deferral of compensation that is subject to Section 409A, to the extent required to avoid the imposition of additional taxes under Section 409A, the transaction or event shall only constitute a Change in Control for purposes of the payment timing of such amount if such transaction also constitutes a “change in control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5).
SCHEDULE C – CALIFORNIA
Conflicting Activities
References herein to “this Agreement” refer to the Employment Agreement inclusive of this Schedule C:
C-1. Agreement Not to Engage in Conflicting Activities. I acknowledge that in reliance upon my covenants in this Agreement, the Company will provide me with one or more of the following: Confidential Information related to my position and duties; trade secrets; authorization to communicate and develop goodwill with customers, suppliers, employees, and other key business relationships of the Company and its Related Companies; and/or, specialized training related to the business of the Company and its Related Companies. I agree that the foregoing would give me an unfair competitive advantage if my activities were not restricted as provided for in this Agreement during my Employment. In order to avoid activities of this nature and the irreparable harm they cause, I agree that, during my Employment, without the consent of the Company, (i) I will not work for or become associated with any outside business activities for remuneration (whether cash or otherwise), whether or not for a business that would constitute a Competitor for purposes of this Schedule C, and (ii) I will not invest in, provide material assistance to any business, or otherwise pursue any business opportunity, in each case under this clause (ii) that would create a conflict of interest. Also, during my Employment, I will not divert business opportunities away from the Company or the Related Companies for personal gain or interfere with the business relationship between the Company and its employees, customers, suppliers, distributors, or vendors, by soliciting or otherwise encouraging or inducing them to cease or reduce doing business with the Company or the Related Companies except where such conduct is undertaken in the course of my duties for the Company and for the benefit of the Company or the Related Companies.
C-2. Definitions.
a.“Competitor” refers to any business (irrespective of how it is organized) that is engaged in the same line of business as the Company or one so similar in nature that it would displace the business opportunities for the Company’s products and/or services in any markets where the Company does business or has demonstrable plans to do business and with respect to which I was provided access to Confidential Information in the course of Employment. The forgoing will include the products and/or services of a Related Company that I have material involvement with or with respect to which I am provided Confidential Information in the course of my Employment.
b.“Related Companies” means, collectively, the Company’s subsidiaries, affiliates or any other company in which Company has an investment and/or other ownership interest.
c.It is understood that to “solicit” or “soliciting” and their derivations mean to interact with another person or entity with the purpose or foreseeable result being to cause, motivate or induce the person or entity to engage in some responsive action, irrespective of who first initiated contact. It will not include general advertising (such as “help wanted” ads) that are not targeted at the Company’s employees or customers.
C-3. Exception. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prohibits me from owning a non-controlling interest consisting or two percent (2%) or less of any class of securities in any publicly traded company or passive investments through an independently controlled fund such as a mutual fund, provided that I am not a controlling person of, or a member of a group that controls, such business, and further provided that I do not otherwise participate in any conduct prohibited under this Agreement.
C-4. Irreparable Harm. A violation of this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C) by me would cause not only actual and compensable damage, but also
irreparable harm and continuing injury to the Company, for which there would not be an adequate remedy at law. Accordingly, if I breach or threaten to breach this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C), the Company will be entitled to temporary and permanent injunctive relief in addition to, and not in lieu of, any and all other legal remedies to which it would otherwise be entitled. In addition to, and not in lieu of injunctive relief to prevent further violations, the Company will have the right to, in addition to any other legal remedies and damages available, to cease the payment of any severance or benefits under Schedule B hereof. The Company will be deemed the prevailing party for all purposes if any relief is granted to it, irrespective of whether some relief requested by the Company is also denied.
C-5. Survival. My obligations in this Agreement (including, without limitation, Section 8 of this Agreement or this Schedule C) shall survive the termination of the Agreement and my Employment under it. My obligations under this Agreement are independent and severable obligations; and, the existence of any claim or cause of action against Company by me, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Company of my obligations under this Agreement. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the adjudicator will enforce the restriction to such lesser extent as would make it reasonable and enforceable and/or reform the restriction to the extent necessary to make it enforceable to protect Company’s legitimate business interests. A presumption provided for in this Agreement may only be overcome by presentation of clear and convincing evidence from the party opposing application of the presumption and shall not apply to the extent that its application would make the restriction, clause or other provision at issue unenforceable. If, despite the foregoing, any provision of this Agreement is adjudicated to be void, illegal or unenforceable, all other provisions will remain in full force and effect, as if the void, illegal, or unenforceable provision is not part of the Agreement except where this Agreement expressly provides otherwise.
SCHEDULE D
Form of Release
This Release of Claims (“Release”) is made pursuant to the Employment Agreement (the “Agreement”) to which this Release is attached as Schedule D and will be effective as of the Release Effective Date (as defined below), by and between the undersigned, _____________________ [NAME], and Callaway Golf Company, a Delaware corporation, (the “Company”), collectively the “Parties.” This Release is entered into in light of the fact that my employment with the Company will terminate effective [_____] and I am eligible to receive the [Special Severance][Change in Control Special Severance][Permanent Disability Benefit] described in Schedule B to the Agreement, subject to the occurrence of the Release Effective Date within the time period specified in Section 3 below and my continued compliance with the terms of this Release and the Agreement. Capitalized terms used herein without definition shall have the meanings given to such terms in the Agreement.
1. Consideration. In consideration for the payment of the [Special Severance][Change in Control Special Severance][Permanent Disability Benefit] described in Schedule B to the Agreement, Employee agrees to the terms and provisions set forth in this Release. In addition, to the extent not already paid, and subject to the terms and conditions of the Agreement, the Company shall pay or provide to me the Accrued Obligations described in the Agreement, subject to and in accordance with the terms thereof.
2. Release. I hereby agree that, other than with respect to the Retained Claims (as defined below), the consideration described in Section 1 represents settlement in full of all outstanding obligations owed to me by the Company, any of its direct or indirect parents, subsidiaries or affiliates, and any of their respective current and former officers, directors, equity holders, managers, employees, agents, investors, attorneys, shareholders, administrators, affiliates, benefit plans, plan administrators, insurers, trustees, divisions, and subsidiaries and predecessor and successor corporations and assigns (collectively, the “Releasees”) related to my employment or service with the Company or any of its direct or indirect parents, subsidiaries or affiliates or termination therefrom. I, on my own behalf and on behalf of any of my affiliates, family members, executors, agents, heirs and assigns, other than with respect to the Retained Claims, hereby and forever release the Releasees from, and agrees not to sue concerning, or in any manner to institute, prosecute, or pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that I may possess based on any omissions, acts, facts, or damages that have occurred up until and including the date I sign this Release against any of the Releasees arising directly or indirectly out of, relating to or in any other way involving in any manner whatsoever my employment or service with the Company or any of its direct or indirect parents, subsidiaries and affiliates or termination therefrom, including, without limitation:
a.any and all claims relating to or arising from my employment or service relationship with the Company or any of its direct or indirect parents, subsidiaries and affiliates and the termination of that relationship;
b. any and all claims relating to, or arising from, my right to purchase, or actual purchase of any shares of stock or other equity interests of the Company or any of its direct or indirect parents, subsidiaries and affiliates, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state law, and securities fraud under any state or federal law;
c. any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;
d. any and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Equal Pay Act; the Fair Labor Standards Act; the Fair Credit Reporting Act; the Age Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Employee Retirement Income Security Act of 1974; the Worker Adjustment and Retraining Notification Act; the Family and Medical Leave Act; the Sarbanes-Oxley Act of 2002; and the California Fair Employment and Housing Act, California Government Code Section 12940, et seq.;
e. any and all claims for violation of the federal or any state constitution;
f. any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
g. any and all claims arising out of the wage and hour and wage payments laws and regulations of the state or states in which I have provided service to the Company or any of its direct or indirect parents, subsidiaries and affiliates; and
h. any and all claims for attorneys’ fees and costs.
This Release does not release claims that cannot be released as a matter of law, including, but not limited to, my right to report possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002, or any other whistleblower protection provisions of state or federal law or regulation and any right to receive an award for information provided thereunder, my right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company or any Releasee for discrimination (with the understanding that my release of claims herein bars me from recovering such monetary relief from the Company or any Releasee for any alleged discriminatory treatment), claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law, claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of COBRA, claims for indemnity under the bylaws of the Company, as provided for by state law or under any applicable indemnification agreement or insurance policy with respect to my liability as an employee, director or officer of the Company or any of its direct or indirect parents, subsidiaries and affiliates, and claims to any benefit entitlements vested as the Termination Date pursuant to written terms of any employee benefit plan of the Company or its affiliates. This Release further does not release claims for the Company’s breach of its executory obligations under this Release or Schedule B of the Agreement. This Release does not prevent me from engaging in any protected conduct described in Section 8(f) of the Agreement. The claims described in this paragraph are referred to as the “Retained Claims.”
I ACKNOWLEDGE THAT I AM FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
I, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS I MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
3. Acknowledgment of Waiver of Claims under ADEA. I understand and acknowledge that I am waiving and releasing any rights I may have under the Age Discrimination in Employment Act of 1967 (“ADEA”), and that this Release is knowing and voluntary. I understand and agree that this Release does not apply to any rights or claims that may arise under the ADEA after the date I sign this Release. I understand and acknowledge that the consideration given for this Release is in addition to anything of value to which I was already entitled. I further understand and acknowledge that I have been advised by in writing that: (a) I have the right to and should consult with an attorney prior to executing this Release; (b) I have [twenty-one (21)] days within which to consider this Release, and the Parties agree that such time period to review this Release shall not be extended upon any material or immaterial changes to this Release; (c) I have seven (7) calendar days following my execution of this Release to revoke this Release pursuant to written notice to the [Title] of the Company; (d) this Release shall not be effective until after the revocation period has expired; and (e) nothing in this Release prevents or precludes me from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties, or costs for doing so, unless specifically authorized by federal law. In the event I sign this Release and return it to the Company in less than the [twenty-one (21)] day period identified above, I hereby acknowledge that I have freely and voluntarily chosen to waive the time period allotted for considering this Release. This Release will become effective at 12:01 a.m. on the eighth day after I sign this Release (the “Release Effective Date”). I further understand that I will not be given the post-termination benefits described in Section 1 above unless the Release Effective Date occurs on or before the date that is sixty (60) days following my Termination Date.
4.Terminations; Resignations. I hereby confirm my termination and resignation from all offices, directorships, and other employment positions, if any, then held with the Company and any Related Company, and I shall take all actions reasonably requested by the Company to effectuate the foregoing
5. Representations. I represent and warrant that:
a. I have surrendered to the Company all Company property as required under Section 8(d) of the Agreement;
b. I am not owed wages, commissions, bonuses or other compensation, other than the Accrued Obligations and as set forth in this Release; and
c. During the course of my Employment, I did not sustain any injuries for which I might be entitled to compensation pursuant to worker’s compensation law or I have disclosed any injuries of which I am currently, reasonably aware for which I might be entitled to compensation pursuant to worker’s compensation law.
6. Conditions on Receiving Post-Termination Benefits. I hereby expressly reaffirm my continuing obligations under the Agreement, including, without limitation, Section 8 of the Agreement and Schedule C to the Agreement, if applicable, I agree that any obligation of the Company to pay any post-termination benefits to me shall be subject to my continued compliance with the terms and conditions of the Agreement, including Section 8 of the Agreement and Schedule C to the Agreement, if applicable. If I breach or threaten to breach the Agreement (including, without limitation, Section 8 of this Agreement or Schedule C to the Agreement, if applicable), the Company will be entitled to cease the payment of any severance or benefits to me under the Agreement (other than the Accrued Obligations).
7.No Assignment. I hereby represent and warrant to the Releasees that there has been no assignment or other transfer of any interest in any claim that I may have against the Releasees.
8.Dispute Resolution. To ensure the timely and economical resolution of disputes that arise in connection with this Agreement, the Parties agree that, except as excluded herein, any and all controversies,
claims and disputes arising out of or relating to this Release or the Agreement will be governed by Section 9 of the Agreement.
9.Miscellaneous.
a.Beneficiaries and Assignment. This Release will be binding upon and inure to the benefit of the Parties, and their heirs and successors and permitted assigns. This Release will automatically inure to the benefit of and be enforceable by the Company and any of the Related Companies, and any successors and assigns. I understand I will have no right to assign my rights, benefits, duties, obligations or other interests in this Release as they are personal to me, other than by will or the laws of descent and distribution. Any attempted assignment by me of my rights, benefits, duties, obligations or other interests in this Release in contravention of this Release will be null and void.
b.Entire Understanding. I am not relying upon any representations outside of the Agreement or this Release in deciding to enter into this Release. This Release and the Agreement (inclusive of Schedules thereto) represent the entire understanding between the Company and me with respect to all matters herein.
c.Amendment and Waiver. This Release will not be modified or amended except by another instrument in writing executed by the Parties. Failure of either party at any time to require performance by the other of any provision of this Release will in no way affect the rights of the waiving party to enforce the same thereafter, nor will the waiver by either party of any breach of any provision of this Release be held to be a waiver of any succeeding breach of any provision or a waiver of the provision itself.
d.Applicable Law. This Release will constitute a contract under the internal laws of the State of [_____],1 and will be governed and construed in accordance with the laws of said state as to both interpretation and performance.
e.Severability. My obligations under this Agreement are each separate and severable obligations. If an adjudicator determines that a restriction provided for herein cannot be enforced as written due to over breadth (such as time, scope of activity, or geography), the Company and I consent to the adjudicator’s enforcement of the restrictions to such lesser extent as would make the restriction reasonable and enforceable and/or agree to the reformation of the restriction (for purposes of that jurisdiction only) where such is necessary to make it enforceable to protect the legitimate business interests of the Company. If, despite the foregoing, any provision in this Agreement is adjudicated to be void, illegal or unenforceable, then it will be severed, and all other provisions contained in this Agreement will remain in full force and effect as if the offending provision was never contained in this Agreement.
f.Counterparts / Electronic Signature. This Release may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, California’s Uniform Electronic Transactions Act (Cal. Civ. Code §1633.1, et seq.) or other applicable law) or other transmission method, and any counterpart so delivered shall be deemed to have been duly signed and delivered and be valid and effective for all purposes.
10.Voluntary Execution of Agreement. I understand and agree that I executed this Release voluntarily, without any duress or undue influence on the part or behalf of the Company or any third party, with the full
1 DRAFTING NOTE: Insert governing law of Agreement.
intent of releasing all of my claims against the Company and any of the other Releasees. I acknowledge that: (a) I have read this Release; (b) I have been represented in the preparation, negotiation, and execution of this Release by legal counsel of my own choice or have elected not to retain legal counsel; (c) I understand the terms and consequences of this Release and of the releases it contains; and (d) I am fully aware of the legal and binding effect of this Release.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
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EXHIBIT ONLY – DO NOT SIGN AT THIS TIME
________________________________
Employee’s name
Date: ___________________________
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COMPANY
Callaway Golf Company, a Delaware corporation
By: _____________________________________
Signer’s Name & Title
Date: ______________________________
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EX-31.1
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a7caly-exx311q12026.htm
EX-31.1
Document
Exhibit 31.1
CERTIFICATION
I, Oliver G. Brewer III, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Callaway Golf Company;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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/s/ OLIVER G. BREWER III |
Oliver G. Brewer III President and Chief Executive Officer |
Dated: May 7, 2026
EX-31.2
9
a8caly-exx312q12026.htm
EX-31.2
Document
Exhibit 31.2
CERTIFICATION
I, Brian P. Lynch, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Callaway Golf Company;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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/s/ BRIAN P. LYNCH |
Brian P. Lynch Executive Vice President and Chief Financial Officer |
Dated: May 7, 2026
EX-32.1
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a9caly-exx321q12026.htm
EX-32.1
Document
Exhibit 32.1
CERTIFICATION PURSUANT
TO 18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO SECTION 906
OF THE SARBANES-OXLEY ACT OF 2002
Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, each of the undersigned officers of Callaway Golf Company, a Delaware corporation (the “Company”), does hereby certify with respect to the Quarterly Report of the Company on Form 10-Q for the quarter ended March 31, 2026, as filed with the Securities and Exchange Commission (the “10-Q Report”), that:
(1) the 10-Q Report fully complies with the requirements of Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2) the information contained in the 10-Q Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
The undersigned have executed this Certification effective as of May 7, 2026.
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/s/ OLIVER G. BREWER III |
Oliver G. Brewer III President and Chief Executive Officer |
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/s/ BRIAN P. LYNCH |
Brian P. Lynch Executive Vice President and Chief Financial Officer |