item No. . N. ATHLETIC EQUIPMENT AGREEMENT 92?: ngiTE?W?? This Agreement is between The University of Texas at Austin a co~educational institution of higher education of the State of Texas, and NIKE USA, Inc. an Oregon corporation with principal of?ces at One Bowerman Drive, Beaverton, Oregon 97005-6453. WHEREAS, UTAUS maintains a men?s and women?s intercollegiate I athletic program with teams that compete in NCAA Division sports and employs coaches and other personnel for such intercollegiate athletic programs; WHEREAS, UTAUS desires to contract for a single source supply of certain athletic footwear and apparel for use in intercollegiate athletic programs; and WHEREAS, represents that it is capable of providing the athletic footwear and apparel required by UTAUS for use by its intercollegiate athletic prograrris. NOW THEREFORE, for and in consideration of the mutual promises, 1 terms, and conditions contained in this Agreement, the parties agree as follows: w:\users\cfau1k\work\nik68 3 2000 I. 1 I. DEFINITIONS A. ?Athletic Director? shall mean the Director of Intercollegiate Athletics for Men or the Director of Intercollegiate Athletics for Women or both as appropriate. B. ?Athletic Program(s)? shall mean all intercollegiate athletic programs for men and women currently maintained (and listed on Exhibit A) or hereafter maintained by UTAUS and any cheerleaders for such programs. C. ?Coach? shall mean the head coach for an Athletic Program. D. ?Coach Endorsement? shall mean the use of the Coach?s name, nickname, initials, autograph, facsimile signature, voice, video or ?lm portrayal, photograph, likeness and image or facsimile image, personal appearance, or other means of associating a Coach with a NIKE Product for the purpose of promoting the sale or use of that product. E. ?Conference? shall" mean the intercollegiate athletic conference of whichUTAUS is a member. F. ?Contract Year" shall mean the twelve (12) month period from July 1.through June 30. G. shall mean the National Collegiate Athletic Association. . H. Marks? shall mean the NIKE name, the Swoosh Design, the NIKE AIR Design, the Basketball Player Silhouette (?Jumpman?) Design, Brand Jordan, Sports Specialties, SPL28, and any'other trademarks, names, or brands presently or thereafter owned or controlled by NIKE. w:\users\cfaulk\work\nik68 3 2000 2 I. Products? shall mean all athletic and athletically related footwear, uniforms, apparel, athleisure apparel, and eyewear, and equipment that is now or hereafter manufactured, distributed, or sold by or for NIKE and in connection with which or upon which a NIKE Mark appears. J. ?Purchased Products? shall mean the NIKE Products purchased by UTAUS in addition to the annual Supplied Product Limit. K. ?Skill Position? shall mean any quarterback,running back, receiver, defensive back, punter, or place kicker on the UTAUS intercollegiate football Team. L. ?Staff? shall mean all assistant coaches, strength coaches, equipment managers, trainers, and any on-field or courtside personnel of any type employed by UTAUS to provide services to any Athletic Program. M. ?Supplied Products? shall mean the NIKE Products that NIKE provides to UTAUS within the annual Supplied Product Limit. N. ?Team? shall mean that group of student athletes participating in each Athletic Program. I O. Marks? shall mean the name, seal, IOQOS, mascot, trademarks, team name, slogans, and Colors of UTAUS and any photograph, videotape, painting, sketch or drawing, or three dimensional reproduction of any statue,? fountain, building, structure, or facility that is uniquely identi?ed with UTAUS. 3 2000 3 TERM. EXTENSION. RENEWAL. AND RIGHT OF FIRST REFUSAL A. This Agreement shall become effective on July 1, 2000 and extend through June 20. 2007 (?Initial Term?). B. In its sole discretion. NIKE shall have the option to extend this Agreement for an additional period from July 1, 2007 through June 30. 2009 (?Extension Term?) by giving written notice to UTAUS on or before October 1, 2005. The Base CompenSation and the annual Product Supply Limit for the Extension Term shall be the same as set forth in Section V. and Section VI for the Initial Term and,lunless renegotiated by the parties all other terms and conditions for the Extension Term shall be the same as for the Initial Term. 0. 1. If NIKE gives written notice to UTAUS on or before October 1, 2005 of the Initial Term that NIKE excersizes the option for the Extension Term and either NIKE or UTAUS identi?es any terms or conditions of the Agreement for renegotiations other than Section V. and Section W, the parties will negotiate in good faith with regard-to such new terms and conditions during the sixty (60) day period following such notice. If the parties cannot arrive at mutually acceptable revisions of the identified new terms and conditions, they may negotiate in good faith for an additional thirty (30) days with regard to a mutually acceptable new agreement extending beyond the expiration of the Initial Term.- If the parties do not arrive at mutually agreeable new terms and conditions of an agreement for the Extension Term . this Agreement shall continue through the Extension Term . 3 2000 . 4 on identical terms as those prevailing during the Initial Term except as otherwise modified pursuant to Section and Section VI. If this Agreement is extended for the Extension Term and NIKE gives written notice to UTAUS on or before October. 1, 2007 that NIKE wishes to extend the Agreement beyond June 30, 2009, the parties will negotiate in good faith for a period of ninety (90) days following such notice to arrive at a mutually acceptable Agreement to continue beyond the Extension Term. If no mutually acceptable terms and conditions can be agreed upon, this Agreement will terminate at the expiration of the Extended Term. 2. If NIKE has not exercised its option under Section to extend this Agreement but NIKE gives written notice to UTAUS on or before October 1, 2005 that NIKE wishes to extend the Agreement beyond June 30, 2007, the parties will negotiate in good faith for a period of ninety (90) days following such notice to arrive at a mutually acceptable agreement to continue beyond the Initial Term. If no mutually aCceptable terms and conditions can be agreed upon, this Agreement will terminate at the expiration of the Initial Term. D. If a negotiation period provided for in Section terminates without the parties having reached mutually acceptable terms and conditions for an agreement beyond the expiration dates speci?ed Section UTAUS shall thereafter have the right to solicit proposals from third parties to provide athletic and athletically related footwear, apparel, and athleisure apparel for the UTAUS Athletic Program(s). NIKE shall have the right of ?rst refusal with regard to any bona fide offer that UTAUS may receive from. a third?party and that UTAUS w:\users\cfaulk\work\nike8 3 2000 - 5 desires to accept. Within fifteen (15) days after receipt of such offer, whether received by UTAUS during the unexpired term of this Agreement or within a 90- day period thereafter, UTAUS shall give NIKE written notice of the specific terms of such offer. NIKE shall have fifteen (15) business days after receipt of such notice to notify UTAUS in writing whether NIKE will enter into a new agreement with UTAUS on terms no less favorable to UTAUS than the material, measurable, and matchable terms of such offer. If NIKE gives UTAUS written notice within such period and terms are no less favorable than the third- party offer, UTAUS shall enter into an agreement with NIKE that embodies such terms} If within such period NIKE either fails to offer or declines to offer UTAUS terms that are no less favorable than the material, measurable, and matchable terms of such third-party offer, UTAUS shall have the right to enter into an agreement with such third-party on the terms offered to UTAUS. NIKE RIGHTS A. Subject to Section NIKE is granted the right to have NIKE Products used or worn on an exclusive basis by each Athletic Program, except as provided in Section Section Section Section VII.B., Section VII.F., or some other provision of this Agreement. B. In connection with the worldwide advertising, marketing, promotion, and sale of NIKE Products in all media forms and technologies now known or hereafter created, NIKE shall have the right to use the following: 3 2000 I 6 1. is the exclusive supplier of the athletic footwear and apparel for The University of Texas at Austin intercollegiate [name of sport] Program? or is the exclusive supplier of the athletic footwear for The University of Texas at Austin Intercollegiate [name of sport] Program" or similar language (collectively the ?Designations?). 2. Coach Endorsements provided for in Section 3. To the extent owned or controlled by UTAUS and subject to NCAA and Conference rules and regulations regarding depiction of eligible athletes, game photographs (?Game Photos?) and/or footage from game videotapes and/or films (?Game Footage?) of any and all Athletic Programs without payment of any fee to UTAUS other than a reasonable search and edit charge. All of such Designations, advertising, marketing, promotional materials, Coach Endorsements, and use to be made of Game Photos and Game Footage must have written approval pursuant to Section prior to production or use. C. All NIKE rights under this Agreement are subject to pre?existing agreements for the provision of certain athletic products and supplies for certain Athletic Programs (?Pre-existing Ag reements?). UTAUS represents and warrants that Exhibit is a true and correct list of each Pre?existing Agreement with the name of the third-party, the Athletic Program covered, the athletic products and supplies provided, and the expiration date of such agreement. NIKE rights are subject to the further exception that during the ?rst Contract Year the UTAUS w:\users\cfaulk\work\nike8 3 2000 - 7 men?s baseball program may wear uniforms that do not display any name, logo, mark, or symbol that identifies the source of such uniforms. D. Upon the expiration of each Pre-existing Agreement, other than with Rawlings, Wilson, Authentic Fitness Corporation, Hilerich Bradsby co., Easton Sports, Baden Sports, Inc., and Oakley Eyewear, Inc., the covered Athletic Program and the Coach shall be subject to all terms and conditions of this Agreement and thereafter UTAUS shall require NIKE Products obtained pursuant to Section VA. or Section V.C. to be used or worn by the Coach, Staff members, and Team members pursuant to the Terms of this Agreement. Upon the expiration of the UTAUS agreement with Oakley Eyewear, Inc., the Coaches and Staff members will be required to wear NIKE sunglasses, however UTAUS may enter into subsequent agreements with Oakley Eyewear, Inc. to provide sunglasses for Team members. E. Upon the expiration of the Pre-existing Agreement with Rawlings, Wilson, Authentic Fitness Corporation, Hilerich Bradsby Co., Easton Sports, and Baden Sports, Inc., NIKE shall have the option to supply the Athletic Program(s) that received and used products pursuant to such agreement the opportunity to use and field test the comparable category of NIKE Products, if any, prior to the beginning of the regular season in that Athletic Program. If, after good faith use and testing of NIKE Products, the coach for the relevant Athletic Program(s) and the Athletic Director are satisfied with the quality, performance capability, and suitability for use in intercollegiate competition, UTAUS shall require such NIKE Products to be used or worn by the Coach, Staff Members, w:\uscrs\cfau1k\work\nik68 3 2000 8 and Team members of the Athletic Program(s) and obtain those NIKE Products pursuant to Section V.A. or Section V.C. If the NIKE Products are found not to be of the quality, performance capabilities, or suitability for the Athletic Program(s), UTAUS shall have the right to obtain such products from the previous source, or from such other source as UTAUS may select provided such other source was, as of the commencement date of this Agreement, principally known in the sporting goods industry and/or in intercollegiate and professional athletics programs as a manufacturer and/or supplier of such products, eg. Wilson, Rawlings, Spalding, Baden, and Easton (inflatables) and Wilson, Spalding, Titleist, Maxfli (golf balls). Any agreement UTAUS may enter into with a third-party for Supplying such products after the expiration of any current agreement shall be limited to a term of one (1) year in order to provide NIKE the opportunity to submit NIKE products to UTAUS annually for evaluation, and (ii) a merchandise only agreement with respect to balls provided by Wilson, Spalding, Titleist, Maxfli no cash compensation provided to UTAUS or its Coaches as part of the consideration for use of such balls. F. UTAUS shall have the option to obtain outerwear for the men?s baseball program from sources other than NIKE provided such outerwear does not have a logo, trademark, or other identi?er of the source. w:\users\cfau1k\work\nik68 3 2000 9 IV. USE OF UTAUS MARKS A. NIKE shall have no right to use UTAUS Marks, other than the name "The University of Texas at Austin" as provided in Section except: pursuant to a license from The Collegiate Licensing Company or any successor identified by or when requested by UTAUS to place UTAUS Marks on NIKE Products provided pursuant to Section V.A. or Section V.C.. B. CLC will be required by UTAUS to modify the standard license for licensing UTAUS Marks to provide that any license issued to NIKE be for a term beginning on the date of issuance and extending through June 30, 2007. Such license will provide for a royalty of eight percent for the first five (5) years with an increase to the then prevailing royalty rate for such licensed products in the last two (2) years; provided that, the increased royalty shall not exceed nine percent In the event NIKE exercises the Option provided for in Section II.B., UTAUS will require CLC to extend the license to NIKE through June 30, 2009 with the royalty rate in effect at the date of such extension. Any licenses issued to NIKE after June 30, 2009 shall be at the royalty rate then prevailing for such licensed products. w:\users\cfaulk\work\nike8 3 2000 10 V. SUPPLIED PRODUCT AND PURCHASED PRODUCT OBLIGATIONS A. Each Contract Year, NIKE shall provide UTAUS free of charge, NIKE Products with a retail value of not less than specified in the following table (the annual ?Supplied Product Limit?). 1st Contract Year (2000-01) $2,305,000 2nd Contract Year (2001-02) $1,500,000 3rd Contract Year (2002-03) $1,500,000 4th Contract Year (2003-04) $1,600,000 5th Contract Year (2004?05) $1,600,000 6th Contract Year (2005-06) $1,700,000 7th Contract Year (2006-07) $1,700,000 8th Contract Year (2007-08) $1,815,000 9th Contract Year (2008-09) $1,815,000 B. The NIKE Products to be available to UTAUS as Supplied Products under Section V.A. Shall be mutually determined by the parties and listed or described in Exhibit C. For the 1st Contract Year, UTAUS shall not be required to include footwear for the intercollegiate football program in the Supplied Products and UTAUS shall have the right to purchase such footwear pursuant to Section For subsequent Contract Years, the percentage of football shoes ordered each Contract Year shall be reasonably consistent with the quantities of shoe typically ordered by UTAUS in past years prior to the commencement of this Agreement. The Supplied Products will be allocated between Athletic Programs as determined by the UTAUS Athletic Department. Except for the Team game uniforms, the Supplied Products, at the discretion of NIKE, may be NIKE ?in-line? products, Le. a product that does not bear UTAUS Marks, and may w:\users\cfaulk\work\nik68 3 2000 11 or may not bear any NIKE Marks. The exact styles, quality, sizes, quantities (where appropriate), and delivery dates shall be mutually determined for each Contract Year by NIKE and UTAUS and shall be subject to Section VD. C. If in any Contract Year the Supplied Products provided pursuant to Section V.A. are not sufficient to meet the needs of any UTAUS Athletic Program(s), UTAUS shall purchase such additional NIKE Products as are required for such Athletic Program(s) directly from NIKE, or such authorized NIKE dealer as designed by NIKE, and in no event shall UTAUS make such purchases from any third-party. All such Purchased Products, with the exception of NIKE turf and/or cleated football shoes, shall be sold to UTAUS at best published wholesale price. All NIKE turf and/or cleated football shoes shall be sold to UTAUS on a ?2 for 1? basis, i.e. for every two (2) pair of NIKE turf and/or cleated football shoes purchased from NIKE or the NIKE designated dealer UTAUS shall receive one (1) pair free. The purchase price for all such footwear shall be as set by the NIKE designated dealer. D. All Supplied Products and Purchased Products shall be delivered F.O.B. to UTAUS. Only properly submitted orders from the UTAUS Athletic Director or their authorized representative shall be ?lled by NIKE. UTAUS shall not be entitled to carry-over any unordered annual Supplied Product Limit from one Contract Year to a subsequent Contract Year. If an order or orders for the entireannual Supplied Product Limit for any Contract Year is or are not received by NIKE or the designated NIKE dealer prior to the conclusion of such Contract Year, then UTAUS shall be deemed to have waived any right to such unordered - 3 I 12 portion of the annual Supplied Product Limit. Initial orders within the annual Supplied Product Limit shall be delivered to UTAUS generally one (1) month prior to the start of a regular season for each Athletic Program. Such orders must typically be placed nine (9) to twelve (12) months in advance of each season to ensure timely delivery.- E. When football, or men?s or women?s basketball team (or any other Team agreed upon by UTAUS and NIKE) participate in an NCAA post- season competition or the UTAUS football team participates in a post-season bowl game, consistent with what NIKE is then?supplying (if at all) to other elite programs, NIKE will provide without charge a package of NIKE apparel for the Team-members. The apparel package will be agreed upon by NIKE and and shall be in compliance with the NCAA Constitution, bylaws, and regulations. VI. NIKE BENEFITS A. As the exclusive provider of the athletic footwear, apparel, and accessory products for the UTAUS Athletic Program(s), each Contract Year NIKE will be provided a package of complimentary benefits related to the UTAUS Program(s), to be mutually determined by the parties on an annual basis, but such benefits shall include at a minimum the following: 1. Season tickets to home games and other games as indicated below: w:\users\cfauik\work\nik68 3 2000 13 Program No. Tickets Football (home) 12 prime location and 2 sideline passes Football (away) 6 Football (Oklahoma) 30 Football (Conference Championship) 8 Football (Bowl) 8 Basketball (Men) 8 Basketball Tournament (Men-Conference NCAA) Basketball (Women) Basketball Tournament (Women-Conference NCAA) OtherAthletic Programs 0000 LCO Each Contract Year NIKE shall receive fifty (50) tickets thirty~eight I. (38) tickets in addition to 12 (twelve) season tickets) to one mutually agreed upon home football game, and (ii) thirty (30) tickets thirty-two (32) tickets in addition to eight (8) season tickets) to one mutually agreed upon men?s home basketball game, and to one mutually agreed upon-women?s basketball game. All tickets provided under this Section shall be for adjacent seats when possible. All football seats shall be in the best available prime locations. When possible all basketball tickets shall be court level and at or near center court. Tickets (for all other Athletic Program(s) shall be in the best available prime locations, UTAUS shall use best efforts to fulfill purchase 3 2000 14 requests for such additional quantities of tickets as it may reasonably request, such tickets to be best available and 'at face ticket price. 2. Four (4) parking passes for all home football and basketball games. I 3. At the mutually agreed upon home football game for which NIKE receives the fifty (50) tickets under Section VI.A.1 ., NIKE shall have the opportunity for a hospitality event using the Tower Suite in Darrell Royal - Texas Memorial Stadium with catering at sole expense. 4. UTAUS shall provide NIKE with one (1) four color I advertisement in each game program for UTAUS Athletic Program(s) and NIKE logo recognition in each newsletter and media guide of the UTAUS Athletic Department. 5. At each home game of each Athletic Program at which a public address system is used, NIKE shall receive a minimum of two (2) public address announcements recognizing NIKE as the exclusive provider of athletic footwear and apparel for the UTAUS Athletic Program. 6. With the prior approval of the Athletic Director or authorized representative of the Athletic Director, NIKE shall have reasonable access to UTAUS Athletic Program games for the purpose of Game Photos or Game Footage for use pursuant to Section 7. Each Contract Year, NIKE shall be entitled to recognition as I the exclusive supplier of athletic footwear and apparel for the UTAUS Athletic Programs at one (1) event of the UTAUS Neighborhood Longhorn w:\uscrs\cfau1k\work\nik68 3 2000 15 Program. NIKE may, at its option, provide NIKE Products to be distributed by UTAUS to the participants in such event. 8. Subject to employment responsibilities with UTAUS and any existing commitments of a Coach, at the request of NIKE, UTAUS shall make the Coach of each Athletic Program available for up to three (3) personal appearances to promote NIKE Products. No single appearance shall exceed twenty-four (24) hours in duration, including travel time, unless otherwise agreed to in advance by the Athletic Director. Such appearances may include, but are not limited to: photo shoots for posters, brochures, or in-store displays; production sessions related to ?lming commercials and/or video productions and/or advertising; internet chat sessions; retail store athletic show appearances; speaking engagements; and appearances at store clinics, celebrity events, and other public events. UTAUS shall receive no additional compensation for such appearances. The provisions of this Section VI.B. shall be subject to the following conditions and restrictions: 1. NIKE shall submit a written request for the services of a Coach to the Athletic Director a reasonable time in advance of the date for the requested services of a Coach. The request must specify the type of service to be performed, the time and place, and the period of time . required. A Coach may not perform services for NIKE without the prior written approval of the Athletic Director. 2. NIKE shall be solely responsible for all costs for production, preparation, staging, recording, photographing, or filming and for the -w:\users\cfau1k\work\nik68 3 2000 - I I 16 direction and control of a Coach who is performing such services. NIKE shall further be responsible for the transportation, meals, and lodging for a Coach while engaged in the performance of such services. 3. The content of any statement to be made by or attributed to a Coach; the content of any audio or video commercial; and content for any print advertising or photograph must be approved in writing pursuant to Section prior to use or production. C. Subject to scheduled game commitments, compliance with applicable NCAA and/or Conference rules and regulations, and the approval of the Athletic Director, upon the prior written request of NIKE, UTAUS shall make its men?s and/or women?s intercollegiate basketball team(s) available to participate in a NIKE sponsored basketball tournament, and/or women's soccer team to participate in a NIKE sponsored soccer tournament, one (1) time within any three (3) year period during the Term. D. expertise, innovation, and leadership in the design and marketing of high quality performance NIKE Products for intercollegiate athletic competition is a material consideration to UTAUS in selecting NIKE as the exclusive provider of athletic footwear, apparel, equipment, and accessories for the UTAUS Athletic Programs. In order to assist NIKE in its continuing efforts to develop and produce high quality performance NIKE Products, at the written request of NIKE, when consistent with their duties, the Athletic Director will designate the Coach and Staff of the Athletic Programs to provide written or oral reports to the NIKE product development and testing department concerning the - 3 2000 17 wear characteristics, quality of materials and workmanship, and performance under playing conditions ofthe Supplied Products and Purchased Products utilized by their particular Athletic Program. E. UTAUS shall require the contract operator of the two (2) Longhorn Limited store locations in Darrell Royal - Texas Memorial Stadium to stock and offer NIKE Products for sale. No NIKE Product that bears a UTAUS mark will be stocked or offered for sale unless it has been manufactured or otherwise produced pursuant to a license issued by CLC or such successor as UTAUS may identify. VII. UTAUS USE OF PRODUCTS A. Except as otherwise required by Section or as provided in Section Section Section Section Section Vll.B., Section VIIF., Section Vll.G., or some other provision of this Agreement, UTAUS will require, and will use best efforts to ensure, that the Coach, Staff members, and Team members of each AthleticProgram wear and/or use Supplied Products or Purchased Products exclusively during practices, workouts, games, or competitions, pre-season and post-season tournaments, conference play?offs and championships, post-season bowls, sports camps or clinics, and other of?cial UTAUS organized or sanctioned activities where the Coach, Staff members, and Team members are reasonably expected to wear athletic apparel, and at media interviews andlor photo sessions when speaking for or acting as a w:\users\cfaulk\work\nik68 3 2000 I I 18 representative of UTAUS. NIKE Products are not required to be worn during public appearances, UTAUS sponsored events, or the performance of official duties and responsibilities when it is considered not appropriate for the particular setting or circumstances or when not acting or appearing as a Coach, Staff member, or Team member. B. A Coach, Staff member, or Team member will not be required to wear or use NIKE footwear because of a bona fide medical or physical condition, as certi?ed by the Athletic Program?s team physician or other qualified professional. In such event the Coach, Staff member, or Team member shall be entitled to wear footwear that is not a NIKE Product; provided that, all visible names, marks, logos, or other identi?cation is taped over or otherwise covered so as to completely obscure the identi?cation of the manufacturer. C. Unless damaged in shipment, Supplied Products and Purchased Products will be worn and/or used in the condition received. UTAUS will not remove, alter, tape over, or othe'nrvise cover any NIKE Mark (?Spatting?) and will use best efforts to prevent a Coach, Staff member, or Team member from Spatting such Product(s) and wearing or using it under the circumstances required by Section VII.A.. To the extent that UTAUS knows or in the exercise of reasonable diligence should have known that a Coach, Staff member, or Team member has engaged in Spatting such Product(s) and has used or worn it under circumstances required by Section VII.A., such conduct shall be a material breach of this Agreement. It shall not be considered Spatting or a pattern of Spatting for: any football player in a Skill Position or in any other position to w:\users\cfau1k\work\nik68 3 2000 19 appear on the field in one (1) or more football games; or (ii) for a Team member in any other Athletic Program(s) to appear in one (1) or more games or competitions wearing NIKE footwear with taping that covers or partially covers any NIKE Marks if the taping is required because of a bona fide foot or ankle injury. D. UTAUS will use best efforts to ensure that a Coach, Staff member, or Team member does not wear or use: 1. Any NIKE Product that they have altered to resemble a non- NIKE product; or I 2. Any product that they have altered to resemble a NIKE Product. E. UTAUS shall not permit the name, trade name, trademark, logo, or other means of identification of any person, corporation, partnership, association, or entity other than the NIKE Marks to appear on Supplied Products or Purchased Products worn or used by a Coach, Staff member, or Team member under circumstances required by Section except for one or more UTAUS Marks, the name and/or logo of the Conference, the name and/or logo of the NCAA or NIT during a post-season tournament, or the name and/or logo of a post-season bowl and/or bowl sponsor that is not a competitor-of NIKE. P. current product line includes inflatable balls footballs and basketballs) and golf balls Balls") and it is desire to have NIKE Balls used in the relevant Athletic Program(s). Each Contract Year, NIKE shall have the option to give each relevant UTAUS Athletic Program(s), that does 3 2000 I 20 not then have an existing agreement for source of balls, the opportunity to use and ?eld test NIKE Balls by providing them a supply of NIKE Balls prior to the beginning of the regular season. If, after good faith use and testing of the NIKE Balls, the Coach for the relevant Athletic Program(s) and the Athletics Director are satisfied with the quality, performance capabilities, and suitability for use in intercollegiate competition and have determined that such NIKE Balls meet any applicable NCAA and/or Conference requirements, for the regular season following determination of suitability and for subsequent seasons, NIKE will provide NIKE Balls for that Athletic Program in quantities to be agreed upon by UTAUS and NIKE. The NIKE Balls will be provided without charge and without counting the value of such NIKE Balls against the annual Supplied Product Limit in Section V. The quantities of NIKE Balls provided shall be equal to or greater than the quantities of comparable balls that UTAUS has previously received from a third-party. G. If NIKE Balls are not found to be of the quality, performance capabilities, or suitability for an Athletic Program, UTAUS shall limit the source of balls for such Athletic Program to a third-party principally known in the sporting goods industry and/or in intercollegiate and professional athletics programs as a manufacturer and/or supplier of balls, e.g. Wilson, Rawlings, Spalding, Baden, and Easton (inflatables) and Wilson, Spalding, Titleist, Maxfli (golf). Any agreement UTAUS may enter into with a third-party for supplying such balls after the expiration of any current agreement shall be limited to a term of one (1) year w:\users\cfaulk\work\nik68 3 2000 21 in order to provide NIKE the opportunity to submit NIKE Balls to UTAUS annually for evaluation. H. NIKE may from time to time develop and add one or more items of athletic footwear, equipment, apparel, and/or accessories to the products it manufacturers. When NIKE has a bona fide intention to develop any such item(s), NIKE shall give UTAUS at least six (6) months written notice identifying the item(s). When such item(s) become commercially available, if such item(s) are not then subject to an existing agreement between UTAUS and a third-party, NIKE shall have the option to give each relevant Athletic Program(s) the opportunity to use and field test such item(s) prior to the beginning of the regular season for that Athletic Program. If, after good faith use and testing of such item(s), the Coach for the relevant Athletic Program(s) and the Athletic Director are satisfied with the quality, performance capabilities, and suitability for use in intercollegiate competition and have determined that such item(s) meet any applicable NCAA and/or Conference requirements, for?the regular season following such determination and for each subsequent season, such item(s) shall be provided to UTAUS for the relevant Athletic Program(s) in quantities to be mutually determined by UTAUS and NIKE. Such items will be provided without charge and without counting the value of such items against the annual Supplied Product Limit. The quantities provided by NIKE shall be equal to or greater than the quantities of comparable item(s) that UTAUS has previously received from a third-party. UTAUS shall require such new items to be worn and/or used pursuant to the terms of this Agreement. w:\users\cfauIk\work\nike8 3 2000 22 BASE COMPENSATION TO UTAUS A. Subject to Section and Section as consideration for the rights granted to NIKE, each Contract Year NIKE shall pay UTAUS the Base Compensation indicated below, in addition to the value of the annual Product Supply Limit in Section V.A.. Payment shall be in two (2) equal installments to be made on July 1 and January 1 of the Contract Year. 1 st Contract Year $750,000 2nd Contract Year $750,000 3rd Contract Year $750,000 4th Contract Year $750,000 5th Contract Year $750,000 6th Contract Year $850,000 7th Contract Year $850,000 8th Contract Year, if applicable $850,000 9th Contract Year, if applicable $850,000 B. The principal consideration and bene?t for execution of this Agreement is the on?field exposure that the Supplied Products receive through prominent Visibility of such Products with NIKE Marks, in particular the NIKE Swoosh Design that appears on NIKE athletic footwear. The continuation of such exposure during the Initial Term and, if applicable, the Extended Term is of the essence of participation in this Agreement. If the UTAUS football team-engages in a pattern of Spatting, in lieu of exercising the right of termination under Section XIV., NIKE shall have the right to reduce the Base Compensation payable to UTAUS in the Contract Year in which the pattern of Spatting occurs in accordance with the reduction scale set forth below. A pattern of Spatting shall exist if: during any game three (3) or more Skill Position players appear on 3 2000 23 the field with spatted footwear; or (ii) any one (1) starter at a Skill Position shall appear on the field with spatted footwear on two (2) or more occasions in any season after NIKE has given UTAUS written notice of such Spatting. It shall not be considered Spatting or a pattern of Spatting if NIKE Marks on footwear worn by a player at a Skill Position are covered by taping that is required by a bona fide foot or ankle injury. Spatting Pattern Base Compensation Occurrence Reduction 1 st occurrence 10% 2nd occurrence 15% 3rd occurrence 25% The indicated reductions shall be cumulative during a football season, i.e. three (3) occurrences result in a fifty percent reduction of the Base Compensation for that Contract Year. C. In addition to the on-field exposure of Supplied Products and Purchased Products with NIKE Marks, a further principal consideration for execution of this Agreement is the prominent exposure that such Products and NIKE Marks receive by reason of the use of such Products with the prominent placement of NIKE Marks as currently permitted by the NCAA (in terms of size, location placement, color prominence, and/or number of placements) by the UTAUS intercollegiate football team and the men?s and women?s intercollegiate basketball teams during appearances on national and regional television broadCasts and other media exposure. The continuation of such exposure during "the Initial Term and, if applicable, the Extended Term is of the essence of participation in this Agreement. If in any Contract Year the UTAUS Iw:\users\cfaulk\work\nike8 3 2000 24 intercollegiate football team and/or the men?s or women?s intercollegiate basketball team is banned from television appearances by the Conference or the NCAA or if the NCAA diminishes current placement rights of NIKE Marks on Supplied Products or Purchased Products worn or used in intercollegiate athletic games or competitions (in terms of the size, location placement, color prominence, and/or number of placements of NIKE Marks), in lieu of exercising the right of termination under Section XIV., NIKE shall have the right to reduce the Base Compensation payable to UTAUS for such Contract Year in accordance with the following: PROGRAM REDUCTION Football 60% Basketball (Men) 30% Basketball (Women) 10% such current placement rights with regard to NIKE Marks on NIKE Products are diminished in a manner other than as described above, NIKE and UTAUS will negotiate in good faith to arrive at an equitable prospective reduction in the UTAU-S- Base Compensation, taking into account the nature and extent of such diminution of rights. If NIKE and UTAUS are unable to agree as to an equitable reduction then Section XVI. shall be applicable. IX. USE OF UTAUS MARKS AND NIKE MARKS A. NIKE shall have no right to use or authorize the use of UTAUS Marks for any purpose, except: W:\users\cfaulk\work\nik68 3 2000 25 1. To comply with a request by UTAUS to incorporate one or more UTAUS Marks into Supplied Products or Purchased Products. 2. To the extent authorized in Section 3. To the extent that UTAUS Marks appear in Game Photos or Game Footage authorized to be used under Section 4. To the extent that UTAUS Marks are visible on NIKE Products manufactured or distributed pursuant to a license issued by CLC, or any successor identi?ed by UTAUS, or on Supplied Products and . Purchased Products referred to in Section IX.A.1. that are worn or used by a Coach in a Coach Endorsement. B. UTAUS shall have no right to use or display NIKE Marks without the prior written consent of NIKE, except for: 1. Supplied Products obtained pursuant to Section VA. 2. Purchased Products obtained pursuant to Section V.C. 3. NIKE Products provided pursuant to Section VII .F. and/or Section VII.G. - C. Nothing in this Agreement is intended to convey any right, title, or interest in UTAUS Marks or the goodwill associated with such marks to NIKE. D. - Nothing in this Agreement is intended to convey any right, title, or interest in NIKE Marks or the goodwill associated with such marks to UTAUS. E. Neither party shall apply to register or malntaln any application or registration of any mark owned by the other party. w:\users\cfaulk\work\nik68 3 2000 26 X. . INDEMNIFICATION A. NIKE shall indemnify and hold harmless UTAUS, its officers, employees, agents, and the Board of Regents of The University of Texas System Parties?) from all claims, demands, causes of action, judgments, costs and expenses, including reasonable attorney fees, for the injury or death of any person or the damage to property that result directly or indirectly from: any NIKE Product supplied to, purChased by, or provided to UTAUS pursuant to this Agreement while being worn or used for its intended purpose; or (ii) the act or omission of one or more NIKE Parties while in the performance of this Agreement. To the extent consistent with the duty of the Attorney General of Texas to represent UTAUS Parties in all litigation and if consented to by the Attorney General of Texas, NIKE may participate in the defense of any such claim, demand, or cause of action and will be consulted connection with 'such defense or any settlement. B. To the extent provided for by the Constitution and laws of the State of Texas, UTAUS shall indemnify and hold harmless NIKE, its directors, officers, employees, agents, and assignees Parties?) from all claims, demands, causes of actions, judgments, cost and expenses, including reasonable attorney fees, that result directly or indirectly from: authorized and approved use of UTAUS Marks; (ii) authorized and approved use of any Coach Endorsement; or the act of omission of one or more UTAUS Parties while in the performance of this Agreement. w:\users\ctaulk\work\nik68 3_ 2000 27 C. The indemnification obligations of the parties are conditioned upon a party giving prompt written notice to the other party of any claim, demand, or cause of action of which that party has notice and for which the party giving notice intends to seek indemni?cation from the party notified. XI. INSURANCE A. NIKE represents and warrants that NIKE and its parent company NIKE, Inc. currently have the ?nancial resources to satisfy any claim, demand, cause of action, orjudgment that may result from: any NIKE Product supplied to, purchased by, or provided to UTAUS pursuant to this Agreement while being worn or used for its intended purpose; or (ii) the act or omission of one or more NIKE Parties while in the performance of this Agreement. NIKE further represents and warrants that NIKE and/or NIKE, Inc. currently carries excess liability insurance over and above a one million dollar ($1,000,000) self-insured retention program and that claims, demands, or judgments under the SIR are paid from a funded reserve account. NIKE shall continue to maintain such SIR so long as net worth remains in excess of two billion dollars B. In the event NIKE is unable to maintain such SIR at or in excess of the amount specified in Section XLA. or net worth becomes less than two billion dollars NIKE shall give UTAUS written notice pursuant to Section and within ten (10) business days shall obtain and w:\users\ctaulk\work\nik68 3 2000 28 w:\users\cfaulk\work\nik68 3 2000 maintain in force general liability, property damage, and product liability insurancexissued by company(s) authorized to do business in the State of Texas and acceptable to UTAUS. Such insurance shall provide coverage of at least one million dollars ($1,000,000) per occurrence for bodily injury or death of any person and/or damage to property that result directly or indirectly from: any NIKE Product supplied to, purchased by, or provided to UTAUS pursuant to this Agreement while being used for its intended purpose; or (ii) from the act or omission of NIKE or its of?cers, employees, or agents in the performance of this Agreement. In addition, NIKE shall obtain and maintain in force insurance with an aggregate limit of at least ten million dollars ($10,000,000) providing excess coverage for such liability. C. In the event NIKE fails to maintain the self-insurance or net worth status referenced in Section or in lieu thereof fails to obtain and maintain the liability insurance referenced in Section XI.B., NIKE shall be in material breach of this Agreement and UTAUS shall be entitled to give notice of termination of this Agreement effective as of written notice to NIKE. XII. LAWS, RULES AND REGULATIONS A. In performing this Agreement UTAUS and NIKE will comply with and will be responsible for their of?cers, employees. and agents compliance with. all applicable state, federal, and local laws and regulations and the constitution, Bylaws, rules, and regulations of the NCAA and the Conference. - 29 B. NIKE shall be responsible for assuring that all NIKE Products provided to UTAUS pursuant to this Agreement comply with applicable provisions of the Constitution, Bylaws, rules, and regulations of the NCAA and the Conference. NOTICE A. All notices or requests for approval, other than those requests by NIKE for approvals required to be submitted under Section shall be in writing and will be deemed to have been given, if delivered by hand, prepaid telegram, registered or certi?ed mail with postage prepaid and delivery con?rmed by return receipt requested, or any means of express mail with confirmed I delivery, addressed as follows: To NIKE: NIKE USA, Inc. One Bowerman Drive Beaverton, OR 97005-6453 Attn: Legal Dept, Contracts Administrator To UTAUS: Senior Vice President and Chief Financial Officer The University of Texas at Austin P. O. Box 8179 Austin, TX 78713-8179 coples to: Director Intercollegiate Athletics for Men The University of Texas at Austin P. O. Box 7399 Austin, TX 78713-7399 w:\users\cfaulk\work\nik68 3 2000 30 Director Intercollegiate Athletics for Women 718 Bellmont Hall Austin, TX 78712 B. use of or reference to Game Photos or Game Footage or UTAUS Marks in any media advertising, point-of?sale displays or consumer advertising material promoting NIKE Products, Coach Endorsement, or other circumstance authorized by this Agreement (collectively ?Commercial Material?) must be approved in writing by the UTAUS Director of Trademark Licensing prior to use or production. The failure to obtain such prior written approval shall be a material breach of this Agreement and UTAUS shall have the right to require NIKE to immediately stop the use of such Commercial Material and recall all such material that has been distributed, or (ii) terminate this Agreement upon receipt of written notice by NIKE. Requests for approval shall be in writing, include a complete copy of the Commercial Material that uses or makes reference to Game Photos or Game Footage or UTAUS Marks, and be transmitted by facsimile, certified mail, express mail, overnight carrier, or regular mail depending upon the expected response time by the Director. The Director?s response will be transmitted by the same means as that used by NIKE unless a response by other means is requested by NIKE. The Director?s response may be by telephone with written con?rmation of such response. The failure to receive a response within any time deadline specified or expected by NIKE shall not be considered as approval. All requests for approval shall be addressed as follows: w:\users\cfaulk\work\nik68 3 2000 31 Director of Trademark Licensing The University of Texas at Austin 2100 Speedway, CBA 6.476 Austin, TX 78712 Telephone: (512) 475-7923 FAX: (512) 232-7080 With copies to: Associate Athletics Director for External Affairs . The University of Texas at Austin Bellmont Hall 224 Austin, TX 78713 FAX: (512) 471?2378 C. Any change in the person(s) to be notified or the address to which such notice is to be addressed may be accomplished as provided in Section XII I.A.. XIV. TERMINATION A. This Agreement is subject to early termination upon written agreement of this parties. B. If NIKE or any of its of?cers, employees, or agents is in default of the performance of any material obligation required by this Agreement, UTAUS shall given written notice to NIKE specifying the nature of such default and if NIKE fails to correct such default within thirty (30) days after receipt of such notice or within such period fails to satisfy UTAUS that the default has not occurred, UTAUS may terminate this Agreement at the expiration of such thirty (30) day period. In addition, UTAUS may give notice of termination effective as of thirty (30) days from receipt by NIKE of such notice upon the occurrence of W:\users\cfaulk\work\nik68 3 2000 I 32 one or more the following events which NIKE fails-to correct within the foregoing 30-day notice period: 1. The entry of an order appointing a trustee in a bankruptcy proceeding for either adjucation of bankruptcy or for reorganization of NIKE or NIKE, Inc. under then current laws relating to bankruptcy; The entry of an order by a court of competent jurisdiction appointing a receiver for all or any portion of the assets of NIKE or NIKE, Inc. in an action for receivership; The failure of NIKE or NIKE, Inc. to maintain the self- insurance and net worth status required by Section XLA. or to obtain and maintain the insurance required by Section XLB. The failure of NIKE or NIKE, Inc. to maintain all licenses, permits, certifications, and/or approvals required to do business. NIKE fails to obtain the approval specified in Section when required by a provision of this Agreement. C. If UTAUS or any of its officers, employees, Coaches, Staff members, Team members, or agents is in default of the performance of any material obligation required by this Agreement, NIKE shall give written notice to UTAUS specifying the nature of such default and if UTAUS fails to correct such default within thirty (30) days after receipt of such notice or within such period 3 2000 I 33 fails to satisfy NIKE that the default has not occurred, NIKE may terminate this Agreement at the expiration of such thirty (30) day period. In addition, NIKE may give notice of termination effective as of receipt by UTAUS upon the occurrence of one or more of the following: 1. If either the UTAUS football program or men?s basketball program is placed on probation by the NCAA with a ban on television appearances and/or post-season appearances or if UTAUS fails to maintain a NCAA Division 1 program in football or men?s basketball; 2. After written notice from NIKE that one or more members of a Team have failed to wear or use NIKE Products in violation of his Agreement or that altered, spatted, or taped NIKE Products have been worn by one or more member of a Team in violation of this Agreement and, after NIKE has given written notice to UTAUS, such violation recurs during the same Contract Year; 3. If any Coach, Staff member, or member of the administration of the Athletic Department publicly disparages the quality and/or performance of NIKE Products; 4. If UTAUS, the NCAA, the Conference, or any assignee, thereof (including any licensing agent or broadcast partner of either) enacts, adopts, or accedes to any regulation, restriction, practice, or prohibition that requires the use of 'w:\users\cfaulk\work\nik68 3 2000 34 products competitive to NIKE Products or materially deprives or causes or induces UTAUS to materially deprive NIKE of any benefits or rights provided for in this Agreement including, but not limited to, any diminution of placement rights for NIKE Marks as currently permitted by the NCAA the size, location placement, color permanence, and/or number of placements) or the total ban of camerauvisible NIKE Marks on Supplied Products or Purchased Products to be worn or used under this Agreement; (ii) the air brushing of NIKE Marks from still photograph or film footage; or the use of L-VIS technology or other ?virtual signage" or electronic computer imaging technology that alters, substitutes, or replaces NIKE Marks on Supplied Products or Purchased Products with other commercial identi?cation that is seen by home television viewers. D. Any claim(s) by NIKE that breach of one (1) or more- provisions of this Agreement entitles NIKE to monetary damages must be pursued pursuant to Section XVI. XV. EFFECT OF EXPIRATION OR TERMINATION A. The expiration of the Initial Term and, if applicable, the Extended Term or the termination of this Agreement pursuant to Section XIV. shall not w:\users\cfaulk\work\nik68 3 2000 35 affect any right, remedy, or cause of action that has accrued to either party at the time of such expiration or termination nor shall it affect the rights of NIKE under any license from CLC that is in effect on such date. B. NIKE shall have no right to use any Commercial Material for any purpose after the expiration of the Initial Term or, if applicable, the Extended Term. In the event of termination pursuant to Section XIV., NIKE may continue to used Commercial Material for not more than one hundred eighty (180) days after the date of termination for the following purposes: 1. Approved advertising in all media forms under centract(s) existing on the date of termination that cannot be cancelled by NIKE without substantial monetary penalty. 2. Approved Commercial Material in tangible form that is in the possession of NIKE on the date of termination or that is scheduled to be delivered under contract(s) existing on the date of termination that cannot be cancelled without substantial penalty. C. NIKE may use in perpetuity any Game Photos or Game Footage in the pOSsession of NIKE at the date of expiration of the Initial Term or, if applicable, the Extended Term or the date of terminationpursuant to Section XIV. solely for in-house exhibition to NIKE's of?cers and employees for historical or educational purposes. D. In the event of termination pursuant to Section XIV., NIKE shall be obligated to pay UTAUS any accrued but unpaid Base Compensation calculated 3 2000 36 on a prorated basis for the period of the Contract Year that has expired at the time of termination. Conversely, UTAUS shall be obligated to repay NIKE any Base Compensation paid in excess of the amount that would have been payable at the time of termination calculated on a prorated basis for the period of the Contract Year that has not expired at the time of termination. E. Upon the expiration ofthe Initial Term or, if applicable, the Extended Term, or upon termination by UTAUS pursuant to Section XIV., UTAUS shall have the option to continue to use Supplied Products and to require NIKE to deliver any existing orders of the annual Supplied Product Limit. F. Upon termination by NIKE pursuant to Section XIV., NIKE shall have the option to require UTAUS to return any Supplied Products delivered in the Contract Year the termination occurs if at the time of termination they have not been distributed to Coaches, Staff, or Team(s). XVI. NIKE FOR MONETARY DAMAGES A. To the extent Chapter 2260, Texas Government Code (?Chapter 2260?), as it may be amended from time to time, is applicable to this Agreement and is. not preempted by other applicable law, the dispute resolution process provided for in Chapter 2260 shall be used by UTAUS and NIKE to attempt to resolve any claim(s) by NIKE that it is entitled to monetary damages as a result of breach of this Agreement. 'w:\users\cfaulk\work\nik68 3 2000 37 1. If claim(s) that breach of this Agreement entitles it to monetary damages cannot be resolved pursuant to other provisions of this Agreement or in the ordinary course of business, such claim(s) shall be submitted to the negotiation process provided for in Subchapter of Chapter 2260. To initiate such process, NIKE shall submit written notice, as required by Subchapter of Chapter 2260, to UTAUS in accordance with Section of this Agreement. notice shall specifically state that the provisions of Subchapter of Chapter 2260 are being invoked, the date and nature of the event that is the basis for the claim, the speci?c provision of this Agreement that it is contended that UTAUS breached, the amount of damages NIKE seeks, and the method used to calculate such damages. Compliance by NIKE with Subchapter of Chapter 2260 is a required prerequisite to filing of a contested case proceeding under Subchapter of Chapter 2260. The Vice President for Business Affairs of UTAUS, or such other officer of UTAUS as may be designated by UTAUS pursuant to Section of this Agreement, shall examine claim and any counterclaim of UTAUS and negotiate with NIKE in a good faith effort to resolve the claim(s). - 3 2000 38 2. Ifthe parties are unable to resolve the NIKE claim(s) under the process provided for in subchapter of Chapter 2260, the contested case process provided in subchapter of Chapter 2260 is sole and exclusive administrative process for seeking remedy for any NIKE claim(s) for monetary damages resulting from breach of this Agreement by UTAUS. 3. Compliance with the contested case process provided in - Subchapter of Chapter 2260 is a required prerequisite to seeking consent to sue from the Texas Legislature under Chapter 107, Texas Civil Practice and Remedies Code. Neither the execution of this Agreement by UTAUS nor any other action, or inaction of UTAUS or its officers, employees, or representatives with respect to this Agreement constitutes or is intended 'to constitute a waiver of the sOvereign immunity of UTAUS and/or the State of Texas from suit by NIKE without the consent of the Texas Legislature. B. The submission, processing, and resolution of claim(s) is governed by the published rules adopted by the Texas Attorney General pursuant to Chapter 2260, as currently effective or hereafter amended. Such rules are published in the Texas Administration Code. 3 2000 . I- 39 C. Neither the occurrence of an event giving rise to a claim(s) by NIKE for monetary damages as a result of breach of this Agreement nor the I pendency of a claim(s) shall constitute grounds for suspension of performance of this Agreement, in whole or in part. The provisions of Section XIV. relating to notice and cure of defaults are not-waived, delayed, or suspended by Chapter 2260 or this Section XVII. ASSIGNMENT A. The rights and obligations of UTAUS under this Agreement are personal to UTAUS and shall not be assigned, delegated, or otherwise transferred by UTAUS without prior written approval. Any assignment, delegation, or transfer of such rights and/or obligations by UTAUS without prior written consent shall be invalid and of no force or effect and NIKE shall have the option to terminate this Agreement effective upon written notice to UTAUS. B. The rights and obligations of NIKE under this Agreement are personal to NIKE and shall not be assigned, delegated, or otherwise transferred by NIKE except within the subsidiaries of NIKE, Inc. and the authorized retail accounts of NIKE and/or NIKE, Inc. without the prior written approval of UTAUS. Any assignment, delegation or transfer of such rights and/or obligations other than as permitted in this Section shall be invalid and of no force or effect - 3 2000 - I '40 and UTAUS shall have the option to terminate this Agreement effective upon written notice to NIKE. C. Contracts entered into by NIKE and/or NIKE, Inc. for the purpose of obtaining services, equipment, materials, or supplies required. for the performance of NIKE?soingations under this Agreement shall not be considered an unauthorized assignment, delegation, or transfer. INDEPENDENT CONTRACTORS This Agreement is not intended to create nor shall it be construed to create any relationship between the parties other than that of independent contractors that have entered into this Agreement solely for the purposes stated '0 herein. Neither UTAUS nor NIKE or their respective of?cers and employees shall be considered to be, and they shall not represent to any third-party that they are, the agent, employee, or representative of the other party. XIX. CONFIDENTIALITY UTAUS shall not disclose to. any third-party, and will use best efforts to prevent and will not knowingly permit its officers, employees, agents, or representatives to disclose to any third-party, the ?nancial terms of this Agreement or any information received from NIKE that has been identified to UTAUS at the time of disclosure as a trade secret, confidential marketing plan, or w:\users\cfauik\work\nik68 3 2000 41 Other confidential ?nancial or business information, unless the release of such information by UTAUS is required by state or federal law, regulation, or court order. Prior to releasing such information UTAUS shall make reasonable efforts to notify NIKE and identify the information that is to be released. XX. UTAUS REPRESENTATIONS AND WARRANTIES A. To the best of the knowledge of UTAUS, no agreement, contract, rule, or practice of any national, international, or collegiate governing body exists that prevents or limits the performance of the obligations of this Agreement by UTAUS. B. UTAUS has the legal authority and right to enter into this Agreement and the terms hereof and to grant NIKE the rights specified herein. C. I Except to the extent specified in Section neither UTAUS nor any Coach or Staff member is a party to any agreement, oral or written, that prevents or limits the performance of the obligations of this Agreement. . D. Except to the extent otherwise provided in existing agreements referenced in Section UTAUS will not endorse, sponsor, or use, or permit any Coach or Staff Member to promote, consult with regard to, endorse, sponsor any athletic footwear (other than pursuant to Section VII.B.), equipment, accessories, apparel, or athleisur'e apparel other than NIKE Products. This applies to brand-identi?ed fashion sportswear sold by fashionbrands that also. w:\users\cfau1k\work\nik68 3 2000 42 sell branded athletic footwear, e.g. Polo, Hil?ger, Nautica, Kari Kari, etc. The provisions of this Section XIXD. shall not apply to competition balls for UTAUS Athletic Programs; provided that, such agreements are with a supplier principally known in the sporting goods industry and/or in intercollegiate and professional sports, at the effective date of this Agreement, as a supplier of balls, e.g. Wilson, Rawlings, Spalding, Baden, Easton (inflatables) and Wilson, Spalding, Titleist, Maxfli (golf). E. UTAUS will not sell or permit any Coach or Staff member to sell any Supplied Products, Purchased Products, or any NIKE Products provided under Section and/or Section VII.G.. F. With the exception of existing agreements related to signage, to the extent that UTAUS controls signage venues for Athletic Programs, UTAUS will not permit the trade name, trademark, logo, name, or other means of identification of any manufacturer or seller of products that are competitive to NIKE Products to appear on signage at practices, games, exhibitions, clinics, sports camps, or other sanctioned intercollegiate activities of Athletic Programs (including but not limited to photo sessions and interviews). XXI. WAIVER The failure of either party to demand strict performance of the obligations, terms, and conditions, of this Agreement by the other party shall not be I considered or construed to be a waiver of the performance of such obligation, w:\users\cfaulk\work\nik68 3 2000 - 43 term, or condition and either party may at all times demand strict performance of such terms, obligations, and conditions by the other party. XXII. SEVERABILITY If any term or provision of this Agreement is. held to be illegal, invalid, or unenforceable for any reason, such illegality, invalidity, or unenforceability shall not affect the validity or enforceability of any other terms or provision. The .- parties will negotiate in good faith to arrive at a legal and valid provision as a substitute for the invalid provision. CAPTIONS The captions and headings contained in this Agreement are for reference and convenience only and are not to be considered or construed to describe, interpret, de?ne, limit, or othennrise affect any term, obligation, condition, or provision of this Agreement. XXIV. MERGER AND AMENDMENT This Agreement contains the entire agreement and understanding of the parties with regard to the subject matter and no prior or contemporaneous agreement, oral or written, shall be effective to vary the terms hereof. No 3 2000 - 44 amendment will be effective unless reduced to writing and signed by the authorized representative of each party. XV. GOVERNING LAW The validity, interpretation, performance, and enforceability of this Agreement shall be governed by the laws of the State of Texas. THE UNIVERSITY OF TEXAS AT AUSTIN by Date: Qig? Charl? Franklin Senior Vice President and Chief Financial Officer NIKE USA, INC. - by Date: 3/5/00 Br?'ce Schilling I I Dir?pon arketing by Date: C. Carter neral Counsel, USA/Americas Regions Iw:\users\cfau1k\work\nik63 3 2000 .. 4s EXHIBIT A UTAUS INTERCOLLEGIATE ATHLETIC PROGRAMS Football Baseball Cheerleading Men?s Basketball Men?s Golf Men?s Swimming Diving Men?s Tennis Men?s Track Cross Country Women?s Basketball Women?s Golf Women?s Rowing Women?s Soccer Women?s Softball Women?s Swimming &Diving Women?s Tennis WOmen?s Track Cross Country Women?s Volleyball 2000 46 EXHIBIT PRE-EXISTING AGREEMENTS The University of Texas at Austin Oakley Eyewear, Inc. 175 pairs of eyewear minimum. December 31, 1997 through August 31 2001 Option to extend agreement during 60-day period (on or before June 30, 2001) Baden Sports, Inc. Volleyballs for practices and games; miniature volleyballs; knee pads, and ball carts. - August 1, 1997 through July 31, 2000 Option to renew for period of August 1, 2000 through July 31, 2003 Easton Sports, Inc. - Equipment and products for softball -- bats, bat bags, wristbands, batting gloves, fieldi-ng'gloves, equipment bags, ball bags, elbow guards, shin guards, bat grips, promotional t-shirts. December 1, 1995 through November 30, 2000 Hillerich Bradsby 00. (Louisville Slugger) Alumunim bats, wooden bats, fungo bats, professional fieldinggloves, batting gloves, wrist bands, travel bags September 1, 1997 through August 31, 2002 Coach Eddie Reese Authentic Fitness Productions, Inc. (Speedo) - .Warm ups, swim suits (nylon training and championship suits), shorts, t-shirts, swim caps, goggles, bags . September 1, 1995 through December 31, 2000 Option to extend agreement-to December 31, 2004 Coach Matt Scoggin Authentic Fitness Productions, Inc. (Speedo) Suits, warm-ups bag, Chamois, t?shirt for club team junior and senior national qualifiers; lycra suits, warm-ups as needed, bags, Chamois for college teams; same as needed for coach to outfit himself. -- October 15, 1998 through December 31, 2001 Option to extend agreement to December 31, 2004 '47 EXHIBIT (Continued) Coach Jill Sterkel Authentic Fitness Productions, Inc. (Speedo) Warm-ups, training and Championship swim suits, shorts, t-shirts, swim caps, bags. January 1, 1996 through December 31, 2000 Option to extend agreement to December 31, 2004 Coach Rick Barnes Rawlings Men?s basketballs for practice and games. October 1, 1998 through September 30, 2001 Coach Mack Brown Wilson Footballs practice and games. December 31, 1998 through December 31, 2001 Coach Jody Conradt Baden Sports, Inc. Women's leather basketballs for practice and games, camps, miniature basketballs. . September 1, 1998 through August 31, 2001 48