EXHIBIT 10.1

 

                          AMENDED AND RESTATED

                         COVENANT NOT TO COMPETE

                       AND NON-DISCLOSURE AGREEMENT

 

 

PARTIES:

 

Mark G. Parker (Employee)

 

NIKE, Inc., and its parent, divisions, subsidiaries and affiliates

(NIKE)

 

 

DATE:  July 24, 2008

 

 

RECITALS:

 

A.     Employee and NIKE are parties to a Covenant Not to Compete and

Non-Disclosure Agreement dated as of February 28, 2006 (the "Prior

Agreement").  The Prior Agreement was executed upon the Employee's

advancement to the position of President and Chief Executive Officer of

NIKE and was a condition of such advancement.  In order to comply with

the provisions of Section 409A of the Internal Revenue Code of 1986 and

thereby avoid the tax penalties to Employee that would result from

failure to comply, Employee and NIKE wish to amend and restate the

Prior Agreement in the form of this Amended and Restated Covenant Not

to Compete and Non-Disclosure Agreement (the "Amended and Restated

Agreement").  As more fully described in paragraph 8.5 below, Employee

agrees that the Prior Agreement remains in full force and effect and

was entered into upon a bona fide advancement.

 

B.     Over the course of Employee's employment with NIKE, Employee

will be or has been exposed to and is in a position to develop

confidential information peculiar to NIKE's business and not generally

known to the public as defined below ("Protected Information").  It is

anticipated that Employee will continue to be exposed to Protected

Information of greater sensitivity as Employee advances in the company.

 

C.     The nature of NIKE's business is highly competitive and

disclosure of any Protected Information would result in severe damage

to NIKE and be difficult to measure.

 

D.     NIKE makes use of its Protected Information throughout the

world.  Protected Information of NIKE can be used to NIKE's detriment

anywhere in the world.

 

AGREEMENT:

 

     In consideration of the foregoing, and the terms and conditions

set forth below, the parties agree as follows:

 

1.     Covenant Not to Compete.

       _______________________

 

     1.1  Competition Restriction.  During Employee's employment by

          _______________________

NIKE, under the terms of any employment contract or otherwise, and for

twenty-four (24) months thereafter, (the "Restriction Period"),

Employee will not directly or indirectly, own, manage, control, or

participate in the ownership, management or control of, or be employed

by, consult for, or be connected in any manner with, any business

engaged anywhere in the world in the athletic footwear, athletic

apparel or sports equipment and accessories business, or any other

business which directly competes with NIKE or any of its parent,

subsidiaries or affiliated corporations ("Competitor").  By way of

illustration only, examples of NIKE competitors include but are not

limited to:  Adidas, FILA, Reebok, Puma, Asics, Saucony, New Balance,

Skechers, KSwiss, Merrell, Timberland, Champion, Russell, Oakley, DKNY,

Ralph Lauren/Polo Sport, B.U.M., FUBU, The Gap, Tommy Hilfiger, Umbro,

The North Face, Foot Locker, The Sports Authority, Finish Line,

Columbia Sportswear, Wilson, Mizuno, Callaway Golf, Acushnet, and

Taylor Made.  This provision is subject to NIKE's option to waive all

or any portion of the Restriction Period as more specifically provided

below.

 

     1.2  Extension of Time.  In the event that Employee breaches this

          _________________

covenant not to compete, the Restriction Period shall automatically

toll from the date of the first breach, and all subsequent breaches,

until the resolution of the breach through private settlement, judicial

or other action, including all appeals.  The Restriction Period shall

continue upon the effective date of any such settlement, judicial or

other resolution.  NIKE shall not be obligated to pay Employee the

additional compensation described in paragraph 1.4 below for any period

of time in which this Amended and Restated Agreement is tolled due to

Employee's breach.  In the event Employee receives such additional

compensation for any such breach, Employee must immediately reimburse

NIKE in the amount of all such compensation upon the receipt of a

written request by NIKE.

 

     1.3  Waiver of Non-Compete.  NIKE has the option to elect to waive

          _____________________

all or a portion of the Restriction Period or to limit the definition

of Competitor, by giving Employee seven (7) days prior notice of such

election; provided, however, unless Employee is terminated "for cause"

(which shall only include continual and repeated neglect of duties or

acts of dishonesty), any waiver of the Restriction Period must be with

the consent of Employee.  In the event all or a portion of the

Restriction Period is waived, NIKE shall not be obligated to pay

Employee for any period of time as to which the Covenant Not to Compete

has been waived.

 

     1.4  Additional Consideration.

          ________________________

 

     (a)  As additional consideration for the Covenant Not To Compete

described above, should NIKE terminate Employee's employment and the

Covenant Not To Compete is enforced, NIKE shall (subject to

subparagraph (b) below) pay Employee a monthly payment equal to one-

twelfth (1/12) of Employee's then current Annual NIKE Income (defined

herein to mean base salary and annual Performance Sharing Plan bonus

calculated at 100% of Employee's last targeted rate) while the

Restriction Period is in effect.  If Employee voluntarily terminates

employment and the Covenant Not To Compete is enforced, NIKE shall

(subject to subparagraph (b) below) pay Employee a monthly payment

equal to one-twenty-fourth (1/24) of Employee's then current Annual

NIKE Income while the Restriction Period is in effect.

 

     (b)  Section 409A of the Internal Revenue Code requires that the

monthly payments to Employee set forth in subparagraph (a) above may

not commence until six months after Employee's "separation from

service" as defined in Treasury Regulations (Section) 1.409A-1(h).

Failure to follow this requirement will result in substantial tax

penalties to Employee.  Accordingly, the commencement of these payments

will be delayed until after the six-month period following Employee's

separation from service in order to comply with Section 409A and avoid

tax penalties for Employee.  All payments that Employee would otherwise

have received before the date that is six months after Employee's

separation from service will be accumulated by NIKE and paid to

Employee in a lump sum promptly following the end of the six-month

period, together with interest at a fluctuating rate per annum equal to

the prime rate as published from time to time in The Wall Street

Journal on these delayed payments from the date otherwise payable under

subparagraph (a) until the date actually paid.

 

     2.  Subsequent Employer.  Employee agrees to notify NIKE at the

         ___________________

time of separation of employment of the name of Employee's new

employer, if known.  Employee further agrees to disclose to NIKE the

name of any subsequent employer during the Restriction Period, wherever

located and regardless of whether such employer is a competitor of

NIKE.

 

     3.  Non-Disclosure Agreement.

         ________________________

 

        3.1  Protectable Information Defined.  "Protected Information"

             _______________________________

shall mean all proprietary information, in whatever form and format, of

NIKE and all information provided to NIKE by third parties which NIKE

is obligated to keep confidential.  Employee agrees that any and all

information to which Employee has access concerning NIKE projects and

internal NIKE information is Protected Information, whether in verbal

form, machine-readable form, written or other tangible form, and

whether designated as confidential or unmarked.  Without limiting the

foregoing, Protected Information includes information relating to

NIKE's research and development activities, its intellectual property

and the filing or pendency of patent applications, trade secrets,

confidential techniques, methods, styles, designs, design concepts and

ideas, customer and vendor lists, contract factory lists, pricing

information, manufacturing plans, business and marketing plans, sales

and futures information, non-public financial information, methods of

operation, manufacturing processes and methods, products, and personnel

information.

 

        3.2  Excluded Information.  Notwithstanding paragraph 3.1,

             ____________________

Protected Information excludes any information that is or becomes part

of the public domain through no act or failure to act on the part of

the Employee.  Specifically, employees shall be permitted to retain as

part of their personal portfolio copies of the employees' original

artwork and designs, provided the artwork or designs have become part

of the public domain.  In any dispute between the parties with respect

to this exclusion, the burden of proof will be on Employee and such

proof will be by clear and convincing evidence.

 

        3.3  Employee's Obligations.  During the period of employment by

             ______________________

NIKE and for a period of two (2) years thereafter, Employee will hold

in confidence and protect all Protected Information and will not, at

any time, directly or indirectly, use and Protected Information for any

purpose outside the scope of Employee's employment with NIKE or

disclose any Protected Information to any third person or organization

without the prior written consent of NIKE.  Specifically, but not by

way of limitation, Employee will not ever copy, transmit, reproduce,

summarize, quote, publish or make any commercial or other use

whatsoever of any Protected Information without the prior written

consent of NIKE.  Employee will also take reasonable security

precautions and such other actions as may be necessary to insure that

there is no use or disclosure, intentional or inadvertent, of Protected

Information in violation of this Amended and Restated Agreement.

 

     4.  Return of Protected Information.  At the request of NIKE at

         _______________________________

any time, and in any event, upon termination of employment, Employee

shall immediately return to NIKE all confidential documents, including

tapes, notebooks, drawings, computer disks and other similar

repositories of or containing Protected Information, and all copies

thereof, then in Employee's possession or under Employee's control.

 

     5.  Unauthorized Use.  During the period of employment with NIKE

         ________________

and thereafter, Employee will notify NIKE immediately if Employee

becomes aware of the unauthorized possession, use or knowledge of any

Protected Information by any person employed or not employed by NIKE at

the time of such possession, use or knowledge.  Employee will cooperate

with NIKE in the investigation of any such incident and will cooperate

with NIKE in any litigation with third parties deemed necessary by NIKE

to protect the Protected Information.  NIKE shall provide reasonable

reimbursement to Employee for each hour so engaged and that amount

shall not be diminished by operation of any payment under paragraph 1.4

of this Amended and Restated Agreement.

 

      6.  Non-Recruitment.  During the term of this Amended and

          _______________

Restated Agreement and for a period of one (1) year thereafter,

Employee will not directly or indirectly, solicit, divert or hire away

(or attempt to solicit, divert or hire away) to or for himself or any

other company or business organization, any NIKE employee, whether or

not such employee is a full-time employee or temporary employee and

whether or not such employment is pursuant to a written agreement or is

at will.

 

     7.  Accounting of Profits.  Employee agrees that, if Employee

         _____________________

should violate any term of this Amended and Restated Agreement, NIKE

shall be entitled to an accounting and repayment of all profits,

compensation, commissions, remuneration or benefits which Employee

directly or indirectly has realized and/or may realize as a result of

or in connection with any such violation (including return of any

additional consideration paid by NIKE pursuant to paragraph 1.4 above).

Such remedy shall be in addition to and not in limitation of any

injunctive relief or other rights or remedies to which NIKE may be

entitled at law or in equity.

 

     8.  General Provisions.

         __________________

 

       8.1  Survival.  This Amended and Restated Agreement shall

            ________

continue in effect after the termination of Employee's employment,

regardless of the reason for termination.

 

       8.2  Waiver.  No waiver, amendment, modification or cancellation

            ______

of any term or condition of this Amended and Restated Agreement will be

effective unless executed in writing by both parties.  No written

waiver will excuse the performance of any act other than the act or

acts specifically referred to therein.

 

       8.3  Severability.  Each provision herein will be treated as a

            ____________

separate and independent clause and unenforceability of any one clause

will in no way impact the enforceability of any other clause.  Should

any of the provisions in this Amended and Restated Agreement be found

to be unreasonable or invalid by a court of competent jurisdiction,

such provision will be enforceable to the maximum extent enforceable by

the law of that jurisdiction.

 

       8.4  Applicable Law and Jurisdiction.  This Amended and Restated

            _______________________________

Agreement, and Employee's employment hereunder, shall be construed

according to the laws of the State of Oregon.  Employee further hereby

submits to the jurisdiction of, and agrees that exclusive jurisdiction

over and venue for any action or proceeding arising out of or relating

to this Amended and Restated Agreement shall lie in the state and

federal courts located in Oregon.

 

       8.5  Prior Agreement Remains Fully Valid and Enforceable.  This

            ___________________________________________________

Amended and Restated Agreement does not supersede the Prior Agreement

except to the extent that the terms of this Amended and Restated

Agreement conflict with the terms of the Prior Agreement, in which case

the terms of this Amended and Restated Agreement shall control.  Other

than with respect to the terms that conflict with this Amended and

Restated Agreement, the terms of the Prior Agreement remain fully valid

and enforceable.

 

 

Employee

 

   /s/ Mark G. Parker

By:  _______________________________

Name:  Mark G. Parker

 

 

NIKE, Inc.

 

   /s/ Philip H. Knight

By:  _______________________________

Name:  Philip H. Knight

Title: Chairman of the Board