EXHIBIT 10.6
NIKE, INC.
DEFERRED COMPENSATION
PLAN
(Amended and Restated Effective
January 1, 2008)
NIKE, INC. DEFERRED COMPENSATION
PLAN
January 1, 2008
Restatement
TABLE OF CONTENTS
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Page
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RECITALS
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1
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ARTICLE I
TITLE AND DEFINITIONS
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2
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1.1
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Title
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2
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1.2
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Definitions
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2
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ARTICLE II
PARTICIPATION
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9
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2.1
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Participation
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9
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ARTICLE III
DEFERRAL OF COMPENSATION
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9
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3.1
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Participant
Elections to Defer Compensation
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9
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3.2
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Director’s 1999 Transition
Election
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11
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3.3
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Company or
Participating Employer Contributions
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11
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3.4
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Deferral of
Long Term Incentive Payments
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12
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3.5
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Investment
Elections
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14
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ARTICLE IV
ACCOUNTS
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15
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4.1
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Participant
Accounts
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15
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ARTICLE V
VESTING
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16
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5.1
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Compensation
Deferrals
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16
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5.2
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Company or
Participating Employer Contributions
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16
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5.3
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Director’s 1999 Transition Retirement Plan
Investments
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16
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ARTICLE VI
DISTRIBUTIONS
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16
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6.1
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Termination of
Service Due to Retirement or Death
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16
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6.2
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Termination of
Service For Reasons Other Than Retirement or Death
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18
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6.3
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Scheduled
Withdrawals
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18
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6.4
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Unscheduled
Withdrawals Due to Financial Emergency
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19
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6.5
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Change of
Control
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20
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6.6
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Section 162(m)
Limitation
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20
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6.7
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Inability To
Locate Participant
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21
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ARTICLE VII
ADMINISTRATION
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21
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7.1
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Retirement
Committee
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21
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7.2
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Retirement
Committee Action
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22
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7.3
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Powers and
Duties of the Retirement Committee
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22
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7.4
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Trustee
Duties
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23
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7.5
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Company
Duties
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23
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ARTICLE VIII
CLAIMS PROCEDURE
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24
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8.1
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Submission of
Claim
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24
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8.2
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Denial of
Claim
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24
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8.3
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Review of
Denied Claim
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24
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8.4
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Decision upon
Review of Denied Claim
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24
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ARTICLE IX
MISCELLANEOUS
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25
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9.1
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Unsecured
General Creditor
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25
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9.2
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Restriction
Against Assignment
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25
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9.3
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Withholding
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25
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9.4
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Amendment,
Modification, Suspension or Termination
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25
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9.5
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Governing
Law
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26
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9.6
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Entire
Agreement
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26
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9.7
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Receipt or
Release
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26
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9.8
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Payments on
Behalf of Persons Under Incapacity
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26
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9.9
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No Employment
Rights
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26
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9.10
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Headings, etc.
Not Part of Agreement
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26
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9.11
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Tax Liabilities
from Plan
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APPENDIX
I
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28
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RECITALS
Effective January 1, 1998,
NIKE, Inc. (the “Company”) combined its Supplemental
Executive Savings Plan and its Supplemental Executive Profit
Sharing Plan into a single plan, which was renamed the NIKE, Inc.
Deferred Compensation Plan (the “Plan”). The Company
subsequently amended and restated the Plan, effective as of
January 1, 2000, January 1, 2003, and June 1,
2004.
On October 3, 2004, the U.S.
Congress added Section 409A to the Internal Revenue Code when
it enacted the American Jobs Creation Act of 2004. Among other
things, the Section 409A modified the tax rules applicable to
non-qualified deferred compensation plans, such as the
Plan.
Effective January 1, 2005, the
Company adopted an interim amended and restated Plan to demonstrate
good-faith compliance with Section 409A as interpreted in
guidance issued by the Department of Treasury, including but not
limited to Notice 2005-1.
In April 2007, the Department of
Treasury issued final regulations interpreting Section 409A.
Therefore, the Company is again amending and restating the Plan to
substantially implement the final regulations, effective for
amounts deferred on and after January 1, 2008. The 2008
Restatement supersedes the 2005 interim restatement and applies to
amounts deferred after January 1, 2008. Transition rules for
amounts deferred after December 31, 2004 and before
January 1, 2008 are set forth in Appendix I of the 2008
Restatement.
No amendment to the June 1,
2004 Plan restatement is made or intended for amounts deferred
prior to January 1, 2005. An amount is considered to be
deferred after December 31, 2004 if:
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the Participant first acquires a
legally binding right to be paid the amount (determined without
regard to any deferral election by the Participant) after
December 31, 2004; or
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the amount is still subject to a
substantial risk of forfeiture after December 31,
2004.
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Amounts deferred prior to
January 1, 2005, including earnings on such amounts, are
subject to the rules of the June 1, 2004 restatement of the
Plan.
In connection with the Plan, the
Company has established an irrevocable trust (the
“Trust”). The Company intends to make contributions to
the Trust so that such contributions will be held by the Trustee
and invested, reinvested and distributed, all in accordance with
the provisions of this Plan and the Trust Agreement. The amounts
contributed to the Trust and the earnings thereon shall be used by
the Trustee to satisfy the liabilities of the Company under the
Plan in accordance with the procedures set forth herein. The Trust
is a “grantor trust,” with the principal and income of
the Trust treated as assets and income of the Company for federal
and state income tax purposes.
1
The assets of the Trust shall at all times be
subject to the claims of the general creditors of the Company as
provided in the Trust Agreement.
The existence of the Trust shall not
alter the characterization of the Plan as “unfunded”
for purposes of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), and shall not be construed
to provide income to Plan Participants prior to actual payment of
the vested accrued benefits under the Plan.
NOW THEREFORE, the Company does
hereby adopt this amended and restated Plan as follows:
ARTICLE I
TITLE AND
DEFINITIONS
1.1 Title
This Plan shall be known as the
NIKE, Inc. Deferred Compensation Plan.
1.2 Definitions
Whenever the following words and
phrases are used in this Plan, with the first letter capitalized,
they shall have the meanings specified below.
(a) “ Account ”
means for each Participant the bookkeeping account maintained by
the Retirement Committee that is credited with amounts equal to
(1) the portion of the Participant’s Salary that he or
she elects to defer, (2) the portion of the
Participant’s Bonus that he or she elects to defer,
(3) the portion of the Participant’s Fees that he or she
elects to defer, (4) the portion of the Participant’s
Long Term Incentive Payment that he or she elects to defer,
(5) Company or Participating Employer contributions, if any,
made to the Plan for the Participant’s benefit, and
(6) adjustments to reflect deemed earnings pursuant to
Section 4.1(e).
(b) “ Actuarial
Equivalent ” means the actuarial present value determined
by the actuary appointed by the Company, in accordance with
generally accepted actuarial principles, with a discount for
mortality using the 1983 Group Annuity Mortality Table and a
discount for interest at the 30-year Treasury rate for July 1999
(5.98%).
(c) “Annual Election
Period” means the period designated each year during
which Participants submit their elections to defer Compensation.
Unless modified by the Retirement Committee, the Annual Election
Period shall end not later than November 30 of the year
immediately preceding the beginning of the Plan Year for which the
deferral elections made during the Annual Election Period shall be
in effect.
(d) “Beneficiary” or
“Beneficiaries” means the beneficiary last
designated in writing by a Participant, in accordance with
procedures established by the Retirement Committee, to receive the
benefits specified hereunder in the event of the
Participant’s death. No Beneficiary designation shall become
effective until it is filed with the Retirement Committee during
the Participant’s lifetime.
2
(e) “ Board of
Directors ” or “Board” means the Board of
Directors of the Company.
(f) “ Bonus ”
means incentive compensation payable under the Company’s
Performance Sharing Plan (PSP) or a similar annual incentive
compensation plan maintained by a Participating Employer which
qualifies as Performance Based Compensation.
(g) “ Change of Control
” means any of the following with respect to the Company for
all Participants, and also with respect to a Participating
Employer, but only to the extent that the Participating Employer
employs a Participant or is responsible for paying Plan benefits to
a Participant:
(1) The date on which any person or
group of persons, within the meaning of the final regulations under
Code Section 409A, acquires ownership of fifty percent or more
of the total fair market value of the Company’s Class A
and Class B common stock or a Participating Employer’s common
stock, or fifty percent or more of the combined voting power of the
Company’s or Participating Employer’s then outstanding
voting securities entitled to vote generally.
(2) The date on which any person or
group of persons, within the meaning of the final regulations under
Code Section 409A, acquires (or has acquired during the
twelve-month period ending on the date of the most recent
acquisition) forty percent or more of the combined voting power of
the Company’s or Participating Employer’s then
outstanding voting securities entitled to vote
generally.
(3) The date on which a person or
group of persons, within the meaning of the final regulations under
Code Section 409A, acquires (or has acquired during the
twelve-month period ending on the date of the most recent
acquisition) assets of the Company or a Participating Employer
equal to or greater than ninety percent of the total gross fair
market value of all or substantially all of the Company’s or
Participating Employer’s assets. A transfer of assets is not
treated as a Change of Control if the assets are transferred
to:
(A) a Company or Participating
Employer shareholder (immediately before the asset transfer) in
exchange for or with respect to its stock;
(B) an entity, 50 percent or more of
the total value or voting power of which is owned, directly or
indirectly, by the Company or Participating Employer;
3
(C) a person, or more than one
person acting as a group, that owns, directly or indirectly, 50
percent or more of the total value or voting power of the
outstanding stock of the Company or Participating
Employer;
(D) an entity, at least 50 percent
of the total value or voting power of which is owned, directly or
indirectly, by a person described in paragraph (C).
(h) “ Code ”
means the Internal Revenue Code of 1986, as amended.
(i) “ Company ”
means NIKE, Inc. and any successor corporation to NIKE,
Inc.
(j) “ Company Stock
” means NIKE, Inc. Class B common stock.
(k) “ Compensation
” means the Salary, Bonus, and Fees that the Participant
earns for services rendered to the Company or a Participating
Employer.
(l) “ Consultant
” means any person, including an advisor but excluding
Directors, engaged by the Company or a Participating Employer to
render services to the Company or a Participating Employer and
designated by the Retirement Committee as eligible to participate
in the Plan.
(m) “ Director ”
means a non-Employee member of the Board.
(n) “ Director’s 1999
Transition Retirement Benefit ” means the Actuarial
Equivalent of the Director’s Retirement Annuity as determined
on September 1, 1999, divided by the fair market value of
Company stock on September 1, 1999, and stated in units
representing shares of Company Stock.
(o) “ Director’s
Retirement Annuity ” means the projected annual
retirement benefit payable to a Retired Director in the amount of
eighteen thousand dollars ($18,000), reduced proportionately for
each year of service completed as a Director less than ten (but
with no benefit if five or fewer years of service).
(p) “ Distributable
Amount ” means the amount credited to a
Participant’s Account.
(q) “ Distribution
Event ” means, with respect to each Participant, the
Participant’s Termination of Service for any reason,
including Retirement or death, or the date of a Scheduled or
Unscheduled Withdrawal. A Participant’s Distribution Event
election shall be made at such time, on such written or electronic
form and subject to such terms and conditions as the Retirement
Committee may specify.
(r) “Election
Period” means the period designated under this Plan when
Participants submit their elections to defer Compensation and/or
Long Term Incentive Payments. The term Election Period includes the
Initial Election Period and any Annual Election Period.
4
(s) “ Eligible Employee
” means any Employee who is designated in writing as eligible
to participate in the Plan by the Retirement Committee from among a
select group of management or highly-compensated Employees of the
Company or a Participating Employer. Effective January 1,
2008, an Employee must have a Salary of at least $150,000 to be an
Eligible Employee.
(t) “ Employee ”
means a common law employee of the Company or a Participating
Employer performing services regularly in the United States or, if
not performing services regularly in the United States, a common
law employee of the Company or Participating Employer who is on
U.S. payroll and participating in a Company-sponsored Global
Transfer Program.
(u) “ Fees ”
means (i) in the case of non-Employee members of the Board,
amounts paid by the Company in the form of annual cash fees,
including retainer fees, and fees paid for attendance at meetings
of the Board and Board committees, and (ii) in the case of any
other non-Employee service provider, the cash fees paid to such
individual for services rendered to the Company.
(v) “ Fund ” or
“Funds” means one or more of the investment funds
selected by the Retirement Committee pursuant to
Section 3.5.
(w) “ Initial Election
Period ” means the 30-day period following an
individual’s designation as an Eligible Employee, Director or
Consultant.
(x) “ Investment Return
” means, for each Fund, an amount equal to the pre-tax rate
of gain or loss on the assets of such Fund (net of applicable fund
and investment charges) from one Valuation Date to the immediately
following Valuation Date.
(y) “ Long Term Incentive
Payment ” means:
(1) an amount payable to a
Participant under the Long Term Incentive Plan;
(2) for payments made on or after
August 1, 2004, an amount payable to a Participant under a
plan or program established by a Participating Employer, and
approved by the Company, to provide incentives to Employees of the
Participating Employer to attain specified performance targets over
a multi-year period; and
(3) an amount payable under the
NIKE, Inc. 1990 Stock Incentive Plan pursuant to an award with
terms similar to awards made under the Long Term Incentive
Plan.
(z) “ Long Term Incentive
Plan ” means the Long Term Incentive Plan of NIKE, Inc.,
as amended from time to time.
5
(aa) “ Participant
” means any Consultant, Director or Eligible Employee who
elects to defer Compensation in accordance with
Section 3.1.
(bb) “ Participating
Employer ” means an entity directly or indirectly
controlled by the Company or in which the Company has a significant
equity or investment interest, which the Retirement Committee has
designated as a Participating Employer in this Plan.
(cc) “ Payment Commencement
Date ” means:
(1) in the case of distributions
which are paid in the form of a single cash lump sum under Sections
6.1 or 6.2, within 90 days after last day of the calendar quarter
containing the Participant’s Termination of Service, provided
that the Participant may not designate the date within this 90-day
period when payment shall be made;
(2) with respect to the first
payment in a series of quarterly installments under
Section 6.1(b), within 90 days after last day of the calendar
quarter containing the Participant’s Termination of Service,
provided that the Participant may not designate the date within
this 90-day period when payment shall be made;
(3) in the case of distributions on
account of Plan termination, distributions otherwise payable under
(1) or (2) may be subject to earlier distribution at the
discretion of the Committee, to the extent that earlier
distribution would not result in additional tax under
Section 409A of the Code.
If the Participant holds the
position of Vice President of the Company, or a higher position,
and the distribution is made on account of the Participant’s
Termination of Service (for a reason other than death), the Payment
Commencement Date may not be earlier than six months after the date
of the Participant’s Termination of Service.
(dd) “Performance Based
Compensation” means payments to an individual that are
contingent on the satisfaction of pre-established organizational or
individual performance criteria measured during a performance
period of at least 12 consecutive months. Organizational or
individual performance criteria are considered to be
“pre-established” if established in writing no later
than 90 days after the start of the performance period, provided
that attainment of the performance criteria is substantially
uncertain at the time the criteria are established. In order to
defer Performance Based Compensation, a Participant must perform
services continuously during the period that begins on the later
of: (i) the first day of the performance measuring period, or
(ii) the date that the performance criteria are established,
and that ends not sooner than the date that the deferral election
is made. Performance Based Compensation does not include any amount
that an individual is entitled to receive regardless of whether
performance goals are attained.
(ee) “ Plan ”
means the NIKE, Inc. Deferred Compensation Plan set forth herein,
now in effect, or as amended from time to time.
6
(ff) “ Plan Year
” means the calendar year.
(gg) “ Predecessor
Plans ” means the NIKE, Inc. Supplemental Executive
Savings Plan and the NIKE, Inc. Supplemental Executive Profit
Sharing Plan.
(hh) “ Profit Sharing
Plan ” means the 401(k) Savings and Profit Sharing Plan
for Employees of NIKE, Inc.
(ii) “ Retirement
” means the Participant’s Termination of Service if at
the time thereof the Participant has attained at least age 35 and
has completed at least sixty (60) whole months of
Service.
(jj) “ Retired Director
” or “Director’s Retirement” means the
cessation of a Director’s services on the Board at or after
age 65 with ten (10) years of service, but no later than age
72 if the Director commenced service as a Director after the
Company’s 1993 fiscal year.
(kk) “ Retirement
Committee ” means the Retirement Committee appointed by
the Board to administer the Plan in accordance with Article VII.
Unless specified otherwise by the Board, the “Retirement
Committee” shall mean the Retirement Committee established
under the Profit Sharing Plan.
(ll) “ Salary ”
means the Employee’s base salary for the Plan Year. Salary
excludes any other form of compensation such as restricted stock,
proceeds from stock options or stock appreciation rights, severance
payments, moving expenses, car or other special allowance,
adjustments for overseas employment, or any other amounts included
in an Eligible Employee’s taxable income that is not
compensation for services. Deferral elections shall be computed
before taking into account any reduction in taxable income by
salary reduction under Code Sections 125 or 401(k), or under this
Plan.
(mm) “ Service ”
means performance of services for the Company (including any entity
that is directly or indirectly controlled by the Company or any
entity in which the Company has a significant equity or investment
interest, as determined by the Company for purposes of this Plan)
or a Participating Employer as an Employee, Director or
Consultant.
(nn) “Termination of
Service” means that the anticipated level of services
provided by a Participant to the Company and all Participating
Employers is permanently reduced to less than 45 percent of the
average level of bona fide services provided by the Participant to
the Company and all Participating Employers during the immediately
preceding period of 36 consecutive months.
(oo) “ Valuation Date
” means each date on which Accounts are valued. The
Retirement Committee shall establish the Valuation Dates under the
Plan.
7
For purposes of determining the
value of each Participant’s Account balance, the Valuation
Date means each day that the New York Stock Exchange is open for
trading.
For purposes of Unscheduled
Withdrawals (Unforeseeable Emergencies), the Valuation Date means
the date the Retirement Committee approves a request for an
Unscheduled Withdrawal.
For purposes of calculating lump sum
payments under Section 6.1 or 6.2, the Valuation Date means
the last day of the calendar quarter preceding the Payment
Commencement Date.
For purposes of calculating the
dollar amount of quarterly installment payments, the Valuation Date
means the last day of the calendar quarter immediately preceding
the quarterly payment date.
The final installment payment will
be equal to the Participant’s remaining Account
balance.
Any valuation under this Plan shall
be based on the closing market prices of the investment Funds on
the applicable Valuation Date or, if the Valuation Date is not a
day on which the New York Stock Exchange is open for trading, the
preceding such trading day.
Payment amounts and deductions from
Accounts are based on asset values as of the Valuation Date even
though actual payments to the Participant may be delayed for an
administratively reasonable period of time to allow for processing
and reporting of payments and withholding of applicable
taxes.
8
ARTICLE II
PARTICIPATION
2.1 Participation
An Eligible Employee, Director or
Consultant shall become a Participant in the Plan by electing to
defer a portion of his or her Compensation in accordance with
Section 3.1.
ARTICLE III
DEFERRAL OF
COMPENSATION
3.1 Participant Elections to
Defer Compensation
(a) Initial Eligibility .
Each Eligible Employee, Director or Consultant may elect to defer
Salary or Fees by filing an election with the Retirement Committee
that conforms to the requirements of this Section 3.1, on a
form provided by the Retirement Committee, no later than the last
day of his or her Initial Election Period. An election to defer
Salary or Fees made during an Initial Election Period shall be
effective as to Salary and Fees earned beginning with the first pay
period beginning after the Initial Election Period. Employees who
first became Eligible Employees during a Plan Year may make an
election to defer Compensation payable in subsequent Plan Years by
making deferral elections in accordance with subsection
3.1(c).
(b) Automatic Continuation of
Deferral Elections . A Compensation deferral election made
under this Section 3.1 shall remain in effect, notwithstanding
any change in the Participant’s Compensation, until modified
or terminated at a subsequent Annual Election Period or as
otherwise provided herein. However, if a Participant receives an
unscheduled in-service withdrawal (with 10 percent forfeiture)
under the 2004 Restatement of the Plan, the Participant’s
deferral election shall continue only through the last day of the
Plan Year in which the unscheduled in-service withdrawal is
received, and the Participant shall be prohibited from making
deferrals to this Plan for next two Plan Years following receipt of
the unscheduled in-service withdrawal.
(c) Deferral Elections After
Initial Election Period .
(1) Annual Election Period .
Subject to the minimum deferral requirement of subsection
(d) of this Section, the percentage of Salary, Bonus, and Fees
designated by the Participant for deferral may be modified by
filing a new election with the Retirement Committee during an
Annual Election Period. Except as provided for Bonus deferrals, a
deferral election made during the Annual Election Period shall
apply only to Compensation payable for services performed beginning
in the Plan Year following the Annual Election Period.
9
(2) Irrevocable During Plan
Year . Once a Compensation deferral election has taken effect,
the Participant’s Compensation deferral election shall be
irrevocable for the remainder of the Plan Year. However, if a
Participant receives a hardship distribution under the Profit
Sharing Plan (or Participating Employer’s qualified plan) or
a distribution under this Plan due to unforeseeable financial
emergency, the Participant’s deferral election will be
canceled for the remainder of the Plan Year in which the
distribution is made (or, if longer, for a period of six months
after the hardship distribution is made). The Participant must
re-establish eligibility in order to defer Compensation in
subsequent Plan Years.
(3) Deferral of Bonus . A
Participant may defer Bonus during an Annual Election Period,
subject to a timing requirement and a services requirement, as
follows:
(A) Timing of Election . An
election to defer Bonus must be made and become irrevocable
(i) no later than six months before the last day of the period
over which a Participant’s performance is measured and
(ii) before the Bonus compensation has become both
substantially certain to be paid and readily
ascertainable.
(B) Services Requirement .
The Participant must perform services continuously during the
period that begins on the later of
(i) the first day of the performance
measuring period, or
(ii) the date that the performance
criteria are established,
and that ends not sooner than the
date that the deferral election is made.
(4) Suspension of
Participation . If a Participant receives an unscheduled
in-service withdrawal (with 10 percent forfeiture) under the 2004
Restatement of the Plan, the Participant shall be prohibited from
making deferrals to this Plan for next two Plan Years following
receipt of the unscheduled in-service withdrawal.
(d) Amount of Deferral
.
(1) Maximum Deferral . The
maximum amount of Compensation that an Eligible Employee, Director
or Consultant may elect to defer is as follows:
(A) Any whole percentage of Salary
up to 100%;
(B) Any whole percentage of Bonus up
to 100%;
(C) Any whole percentage of Fees up
to 100%;
provided, however, that no election
under this Section 3.1 shall be effective to reduce the
Compensation paid to an Eligible Employee to an amount that is less
than the amount necessary to pay applicable employment taxes (e.g.,
FICA and Medicare contributions) payable with respect to amounts
deferred hereunder,
10
amounts necessary to satisfy any
other benefit plan withholding obligations, any resulting income
taxes payable with respect to Compensation that cannot be deferred,
and any amounts necessary to satisfy any wage garnishment or
similar obligations.
(2) Minimum Deferrals . For
each full Plan Year during which an Eligible Employee is a
Participant, the minimum dollar amount that may be deferred under
this Section 3.1 is $5,000. The minimum deferral is $1,000 in
the case of Directors and Consultants.
(e) Termination of Deferral
Election . If a Participant ceases to be an Eligible Employee,
Director or Consultant, the deferral election shall continue with
respect to Compensation earned through the last day of the Plan
Year in which the Participant ceases to be an Eligible Employee,
Director, or Consultant and then shall terminate. The Participant
must re-establish eligibility in order to defer Compensation in
subsequent Plan Years.
3.2 Director’s 1999
Transition Election . Any Director as of September 1,
1999, shall have made an election on or before September 24,
1999, to either remain eligible for the Director’s Retirement
Annuity or to convert such annuity to the Director’s 1999
Transition Retirement Benefit, in either case such benefit not
payable until the Director’s Retirement. In the event an
electing Director converted the Director’s Retirement
Annuity, such election shall be irrevocable and paid as provided
herein.
3.3 Company or Participating
Employer Contributions
(a) Eligibility . An Eligible
Employee who qualifies for a contribution for a Plan Year under the
Profit Sharing Plan (or a Participating Employer’s qualified
retirement plan, if applicable) shall be eligible for a Company or
Participating Employer contribution under this Plan for such Plan
Year if he or she either (1) makes a Deferral Election under
3.1 for the Plan Year, or (2) receives compensation under the
Profit Sharing Plan (or Participating Employer’s qualified
retirement plan, if applicable) exceeding the
Code § 401(a)(17) limit of $200,000 (as indexed;
$230,000 for 2008) for its Plan Year, or both.
(b) Contribution . An
Eligible Employee who is eligible under subsection 3.3(a) shall be
credited with a “Restoration Amount” for each Plan
Year. “Restoration Amount” means the amount by which
the Eligible Employee’s allocated share of the “Profit
Sharing Contribution” (as defined in the Profit Sharing Plan
or the Participating Employer’s qualified retirement plan)
for the corresponding plan year under the Profit Sharing Plan or
Participating Employer’s qualified retirement plan would be
higher if calculated on the basis of Compensation as defined in
this Plan (1) determined before any reduction for deferral of
Compensation under this Plan; and (2) without regard to the
Code § 401(a)(17) limit.
11
(c) Time and Form of Payment
. If the Restoration Amount becomes payable due to the
Participant’s Retirement or death, the Restoration Amount
(adjusted for investment returns) shall be paid in quarterly
installments over a period of five years beginning on the Payment
Commencement Date. The Participant may elect an optional form of
payment (listed in Section 6.1(b)(2)) of the Restoration
Amount under the procedures set forth Section 6.1(b)(4). If
the Restoration Amount becomes payable under Section 6.2 due
to the Participant’s Termination of Service for a reason
other than Retirement or death, the Restoration Amount (adjusted
for investment returns) shall be paid in a single lump sum
beginning on the Payment Commencement Date.
(d) Discretionary
Contributions . In addition to contributions in accordance with
Section 3.3(b), the Company or Participating Employer may, in
its sole discretion, make discretionary contributions to the
Accounts of one or more Participants at such times and in such
amounts as the Board, the Participating Employer or the Retirement
Committee may determine. At the time that the Company or
Participating Employer specifies the amount of the Discretionary
Contribution, the Company or Participating Employer must also
specify (1) the time and form of payment of the Discretionary
Contribution; and (2) the vesting schedule, if any, applicable
to the Discretionary Contribution. A Participant may change the
time and form of payment of the Discretionary Contribution only if
his or her change is filed with the Retirement Committee at least
twelve months prior to his or her Payment Commencement Date and the
first payment made under the newly elected form of payment cannot
be made sooner than five years aft