EXHIBIT 10.2
COVENANT NOT TO COMPETE
AND NON-DISCLOSURE AGREEMENT
PARTIES:
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Xxxxxx XxXxxx ("EMPLOYEE")
and
NIKE, Inc., and its parent, divisions,
subsidiaries, affiliates, successors and assigns. ("NIKE"):
RECITALS:
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A. This Covenant Not to Compete and Non-Disclosure Agreement
is executed upon the EMPLOYEE's bona fide advancement with NIKE and is
a condition of such advancement. Employee acknowledges that this
Covenant Not to Compete and Non-Disclosure Agreement is a condition of
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 Protected Information throughout the
world. Protected 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 engaged anywhere in the
world in the athletic footwear, athletic apparel or sports equipment,
sports electronics/technology and sports accessories business, or any
other business which directly competes with NIKE or any of its parent,
subsidiaries or affiliated corporations (a "Competitor"). By way of
illustration only, examples of NIKE competitors include, but are not
limited to: Adidas, FILA, Reebok, Puma, Skechers, KSwiss, Garmin,
Polar, Merrell, Timberland, Champion, Oakley, DKNY, Asics, Saucony, New
Balance, Xxxxx Xxxxxx/Polo Sport, B.U.M, FUBU, The Gap, Xxxxx Xxxxxxxx,
Umbro, The North Face, Foot Locker, Sports Authority, Columbia
Sportswear, Under Armour, Wilson, Mizuno, Callaway Golf and Titleist.
This provision is subject to NIKE's option to waive all or any portion
of 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 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(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 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. 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.
(d) Additional Consideration. As additional
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consideration for the covenant not to compete described above, should
NIKE terminate EMPLOYEE's employment and elect to enforce the non-
competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal
to one hundred percent (100%) of EMPLOYEE's last monthly base salary
while the Restriction Period is in effect. If EMPLOYEE voluntarily
terminates employment and NIKE elects to enforce the non-competition
agreement, NIKE shall pay EMPLOYEE a monthly severance payment equal to
fifty percent (50%) of EMPLOYEE's last monthly base salary while the
Restriction Period is in effect. The first payment to EMPLOYEE of
additional consideration shall follow on the next applicable pay period
after the election to enforce the non-competition agreement, payable in
accordance with NIKE's payroll practices.
2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the
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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.
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(a) Protected 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
financial information, sales information, methods of operation,
manufacturing processes and methods, products, and personnel
information.
(b) Excluded Information. Notwithstanding paragraph
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3(a), 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. 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.
(c) Employee's Obligations. During the period of
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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 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 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 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 Protected Information in whatever
form, including tapes, notebooks, drawings, digital files, or other
media 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
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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(d) of this Agreement.
6. Non-Recruitment. During the term of this Agreement and for
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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
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should violate any term 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 and/or may realize as a result of or in connection with any
such violation (including 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, 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 exclusive jurisdiction over and venue
for any action or proceeding arising out of or relating to this
Agreement shall lie in the state and federal courts located in Oregon.
EMPLOYEE NIKE, Inc.
____________________________ By _________________________
Name: Xxxx Xxxxxx
DATE______________________ Title: President & CEO
