EXHIBIT 10.1
CONVENANT NOT TO COMPETE
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AND NON-DISCLOSURE AGREEMENT
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PARTIES:
Adam Helfant(EMPLOYEE)
and
NIKE, Inc., an Oregon corporation, and its parents, divisions,
subsidiaries and affiliates.
RECITALS:
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A. This Covenant Not to Compete and Non-Disclosure Agreement is
executed upon initial employment or upon the EMPLOYEE's advancement with
NIKE and is a condition of such employment or advancement.
B. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will
be or has been exposed to and/or 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 Protective Information throughout the world.
Protective Information of NIKE can be used to NIKE's detriment anywhere
in the world.
AGREEMENT:
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In consideration of the foregoing, and the terms and conditions set
forth below, the parties agree as follows:
1. Covenant Not to Compete.
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(a) Competition Restriction. During EMPLOYEE's employment
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by NIKE, under the terms of any employment contract or otherwise, and
for 1 year 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 (regardless of where
located) primarily engaged in the athletic footwear, athletic apparel or
sports equipment and accessories business ("Competitor"). It is
understood and agreed that none of the television networks (e.g. CBS,
CBS Sports, Fox, Fox Sports, NBC, NBC Sports, ABC or ABC Sports),
professional sports leagues (e.g. NBA, NBA Properties, MLB, MLB
Properties, NFL, NFL Properties, NHL or NHL Enterprises) or athletic
management or other agencies (e.g. IMG or ISL) shall be considered
Competitors for purposes of this Agreement. This provision is subject to
NIKE's option to waive the Restriction Period as more specifically
provided below.
(b) Extension of Time. In the event EMPLOYEE breaches
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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 though 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(d) below during any
period of time in which this Agreement is tolled due to EMPLOYEE's
breach. In the event EMPLOYEE receives such additional compensation
after any such breach, EMPLOYEE must immediately reimburse NIKE in the
amount of all such compensation upon the receipt of a written request by
NIKE.
(c) Waiver of Non-Compete. NIKE has the option, in its
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sole discretion, to elect to waive all but not a portion of the
Restriction Period or to limit the definition of Competitor, by giving
EMPLOYEE written notice of such election within fourteen (14) days after
either party gives notice to the other party of the termination of
EMPLOYEE's employment. In the event all of the Restriction Period is
waived in accordance with the preceding sentence, NIKE shall not be
obligated to pay EMPLOYEE pursuant to paragraph 1(d) below:
(d) Additional Consideration. As additional consideration
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for the covenant not to compete described above, NIKE shall pay EMPLOYEE
a monthly severance payment equal to one hundred percent (100%) of
EMPLOYEE's last monthly base salary while the Restriction Period is in
effect (i.e., an aggregate severance amount equal to the product of
EMPLOYEE's last monthly base salary and 12, payable in equal
installments pursuant to the following sentence). NIKE's obligation to
pay the above additional consideration shall not begin until the
thirtieth (30th) day after termination of employment, and the first
payment to EMPLOYEE shall follow on the next applicable pay period after
the thirty (30) days payable in accordance with NIKE's payroll practices.
2. Subsequent Employer. EMPLOYEE agrees that during the
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Restriction Period, EMPLOYEE will disclose to NIKE the name of any
subsequent employer, wherever located and regardless of whether such
employer is a competitor of NIKE.
3. Non-Disclosure Agreement.
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(a) Protectable Information Defined. "Protected
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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, 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 information,
methods of operation, manufacturing processes and methods, products, and
personnel information.
(b) Excluded Information. Notwithstanding paragraph 3(a),
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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
EMPLOYEE. 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.
(c) Employee's Obligations. During the period of
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employment by NIKE and for a period of one (1) year thereafter, EMPLOYEE
will hold in confidence and protect all Protected Information and will
not, at any time, directly or indirectly, use any 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, during the period of employment
by NIKE and for a period of one (1) year thereafter, copy, transmit,
reproduce, summarize, quote, publish or make any commercial or other use
whatsoever of any Protected Information without prior written consent of
NIKE. EMPLOYEE will also take responsible security precautions and such
other actions may be necessary to insure that there is no use or
disclosure, intentional or inadvertent, of Protected Information in
violation of this Agreement.
4. Return of Protected Information. At the request of NIKE at
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anytime, 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
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and for a period of one (1) year 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 arising out of any such incident and deemed necessary6 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(d) of
this Agreement.
6. Non-Recruitment. During the Restriction Period, EMPLOYEE
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will not directly or indirectly, solicit (or attempt to solicit) 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
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should violate paragraph 1(a) of this 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 as a result of or in connection with any such violation (which
may include the return of any additional consideration paid by NIKE
pursuant to Paragraph 1(d) 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.
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(a) Survival. This Agreement shall continue in effect
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after the termination of EMPLOYEE's employment for the periods specified
herein, regardless of the reason for termination.
(b) Waiver. No waiver, amendment, modification or
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cancellation of any term or condition of this 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.
(c) Severability. Each provision herein will be treated
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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 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.
(d) Applicable Law/Jurisdiction. This Agreement, and
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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 the exclusive jurisdiction over and
venue for any action or proceeding arising out of or relating to this
Agreement shall lie in a court located in Washington County, Oregon or
New York.
EMPLOYEE NIKE, Inc.
/s/ Adam Helfant /s/ Ian Todd
____________________________ ____________________________
Name: Adam Helfant Ian Todd
DATE: 06/25/1999 Title: Vice President Global Sports
Marketing