EXHIBIT 10.2
INDEMNITY
AGREEMENT
THIS AGREEMENT is made as of
, 20 by and
between NIKE, Inc., an Oregon corporation (the
“Corporation”), and
and [officer/director] of the Corporation (the
“Indemnitee”).
WHEREAS, it is essential to the
Corporation to retain and attract as [officers/directors] of the
Corporation the most capable persons available and persons who have
significant experience in business, corporate and financial
matters; and
WHEREAS, the Corporation has
identified the Indemnitee as a person possessing the background and
abilities desired by the Corporation and desires the Indemnitee to
serve as an [officer/director] of the Corporation; and
WHEREAS, the substantial increase in
corporate litigation may, from time to time, subject the Indemnitee
to burdensome litigation, the risks of which frequently far
outweigh the advantage of serving in such capacity; and
WHEREAS, in recent times the cost of
directors’ and officers’ liability insurance has
increased and the availability of such insurance has been severely
limited; and
WHEREAS, the Corporation and the
Indemnitee recognize that serving as an [officer/director] of a
corporation at times calls for subjective evaluations and judgments
upon which reasonable men may differ and that, in that context, it
is anticipated and expected that [officers/directors] of
corporations will and do from time to time commit actual or alleged
errors or omissions in the good faith exercise of their corporate
duties and responsibilities; and
WHEREAS, it is now and has always
been the express policy of the Corporation to indemnify its
[officers/directors] to the fullest extent not prohibited by law;
and
WHEREAS, the Restated Articles of
Incorporation, as amended (the “Articles”), of the
Corporation require indemnification of the [officers/directors] of
the Corporation to the fullest extent not prohibited by law,
including but not limited to the Oregon Business Corporation Act
(the “Act”), and the Act expressly provides that the
indemnification provisions set forth therein are not exclusive, and
thereby contemplates that contracts may be entered into between the
Corporation and officers of the Corporation with respect to
indemnification of [officers/directors]; and
WHEREAS, the Corporation and the
Indemnitee desire to articulate clearly in contractual form their
respective rights and obligations with regard to the
Indemnitee’s service on behalf of the Corporation and with
regard to claims for loss, liability, expense or damage which,
directly or indirectly, may arise out of or relate to such
service.
Indemnity Agreement – Page 1
NOW, THEREFORE, the Corporation and
the Indemnitee agree as follows:
1. Agreement to Serve . The
Indemnitee shall serve as an [officer/director] of the Corporation
for so long as the Indemnitee is duly elected or appointed or until
the Indemnitee tenders a resignation in writing.
2. Definitions . As used in
this Agreement:
(a) The term
“Proceeding” includes, without limitation, any
threatened, pending or completed action, suit or proceeding,
whether brought in the right of the Corporation or otherwise and
whether of a civil, criminal, administrative, legislative or
investigative nature, formal or informal, internal or external, in
which the Indemnitee may be or may have been involved as a party,
witness or otherwise, by reason of the fact that the Indemnitee is
or was an [officer/director] of the Corporation or any of its
subsidiaries, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
whether or not serving in such capacity at the time any liability
or expense is incurred for which exculpation, indemnification or
reimbursement can be provided under this Agreement.
(b) The term “Expenses”
includes, without limitation thereto, expenses of investigations,
“Proceedings” or appeals, attorney, accountant and
other professional fees and disbursements, any other expenses or
disbursements incurred in connection with any Proceeding, and any
expenses of establishing a right to indemnification under
Section 11 of this Agreement, but shall not include amounts
paid in settlement by the Indemnitee or the amount of judgments or
fines against the Indemnitee.
(c) References to “other
enterprise” include, without limitation, employee benefit
plans; references to “fines” include, without
limitation, any excise tax assessed with respect to any employee
benefit plan; references to “serving at the request of the
Corporation” include, without limitation, any service as a
director, officer, employee or agent which imposes duties on, or
involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants, or its
beneficiaries; and a person who acted in good faith and in a manner
reasonably believed to be in the interest of an employee benefit
plan shall be deemed to have acted in a manner “not opposed
to the best interests of the Corporation.”
3. Indemnity in Third-Party
Proceedings . The Corporation shall indemnify the Indemnitee in
accordance with the provisions of this Section 3, if the
Indemnitee is made a party to any Proceeding (other than a
Proceeding by or in the right of the Corporation to procure a
judgment in its favor), against all Expenses, judgments, fines and
amounts paid in settlement, actually and reasonably incurred by the
Indemnitee in connection with such Proceeding if the conduct of the
Indemnitee was in good faith and
Indemnity Agreement – Page 2
the Indemnitee reasonably believed that the
Indemnitee’s conduct was in the best interests of the
Corporation, or at least not opposed to its best interests, and, in
the case of a criminal proceeding, the Indemnitee, in addition, had
no reasonable cause to believe that the Indemnitee’s conduct
was unlawful. However, the Indemnitee shall not be entitled to
indemnification under this Section 3 in connection with any
Proceeding charging improper personal benefit to the Indemnitee in
which the Indemnitee was adjudged liable on the basis that personal
benefit was improperly received by the Indemnitee unless and only
to the extent that the court conducting such Proceeding or any
other court of competent jurisdiction determines upon application
that despite the adjudication of liability, the Indemnitee is
fairly and reasonably entitled to indemnification in view of all
the relevant circumstances.
4. Indemnity in Proceedings by or
in the Right of the Corporation . The Corporation shall
indemnify the Indemnitee in accordance with the provisions of this
Section 4, if the Indemnitee is made a party to any Proceeding
by or in the right of the Corporation to procure a judgment in its
favor, against all Expenses actually and reasonably incurred by the
Indemnitee in connection with such Proceeding if the conduct of the
Indemnitee was in good faith and the Indemnitee reasonably believed
that the Indemnitee’s conduct was in the best interests of
the Corporation, or at least not opposed to its best interests.
However, the Indemnitee shall not be entitled to indemnification
under this Section 4 in connection with any Proceeding in
which the Indemnitee has been adjudged liable to the Corporation
unless and only to the extent that the court conducting such
Proceeding or any other court of competent jurisdiction determines
upon application that, despite the adjudication of liability, the
Indemnitee is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances.
5. Indemnification of Expenses of
Successful Party . Notwithstanding any other provisions of this
Agreement, to the extent that the Indemnitee has been successful,
on the merits or otherwise, in defense of any Proceeding or in
defense of any claim, issue or matter therein, including the
dismissal of an action without prejudice, the Corporation shall
indemnify the Indemnitee against all Expenses incurred in
connection therewith.
6. Additional Indemnification
.
(a) Notwithstanding any limitation
in Sections 3, 4 or 5, the Corporation shall indemnify the
Indemnitee to the fullest extent not prohibited by law with respect
to any Proceeding (including a proceeding by or in the right of the
Corporation to procure a judgment in its favor) against all
Expenses, judgments, fines and amounts paid in settlement, actually
and reasonably incurred by the Indemnitee in connection with such
Proceeding.
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(b) For purposes of this Agreement,
the meaning of the phrase “to the fullest extent not
prohibited by law” shall include, but not be limited
to:
(i) to the fullest extent authorized
or not prohibited by any changes in the law, including but not
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