SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
(Mark One)
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended May 31, 2008
or
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to .
Commission File No. 1-10635
NIKE, Inc.
(Exact name of Registrant as specified in its charter)
Oregon | 93-0584541 | |
(State or other jurisdiction of incorporation) |
(IRS Employer Identification No.) |
|
One Bowerman Drive | (503) 671-6453 | |
Beaverton, Oregon 97005-6453 | (Registrants Telephone Number, Including Area Code) | |
(Address of principal executive offices) (Zip Code) |
Securities registered pursuant to Section 12(b) of the Act:
Class B Common Stock | New York Stock Exchange | |
(Title of Each Class) | (Name of Each Exchange on Which Registered) |
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes þ No ¨
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No þ
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes þ No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained to the best of Registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. þ
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of large accelerated filer, accelerated filer non-accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer þ |
Accelerated filer ¨ | |
Non-accelerated filer ¨ |
Smaller Reporting Company ¨ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No þ
As of November 30, 2007, the aggregate market value of the Registrants Class A Common Stock held by nonaffiliates of the Registrant was $335,114,101 and the aggregate market value of the Registrants Class B Common Stock held by nonaffiliates of the Registrant was $25,690,498,658.
As of July 25, 2008, the number of shares of the Registrants Class A Common Stock outstanding was 96,191,444 and the number of shares of the Registrants Class B Common Stock outstanding was 394,220,937.
DOCUMENTS INCORPORATED BY REFERENCE:
Parts of Registrants Proxy Statement for the annual meeting of shareholders to be held on September 22, 2008 are incorporated by reference into Part III of this Report.
NIKE, INC.
ANNUAL REPORT ON FORM 10-K
NIKE, Inc. was incorporated in 1968 under the laws of the state of Oregon. As used in this report, the terms we, us, NIKE and the Company refer to NIKE, Inc. and its predecessors, subsidiaries and affiliates, unless the context indicates otherwise. Our Internet address is www.nike.com. On our NIKE Corporate web site, located at www.nikebiz.com, we post the following filings as soon as reasonably practicable after they are electronically filed with or furnished to the Securities and Exchange Commission: our annual report on Form 10-K, our quarterly reports on Form 10-Q, our current reports on Form 8-K and any amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities and Exchange Act of 1934, as amended. All such filings on our NIKE Corporate web site are available free of charge. Also available on the NIKE Corporate web site are the charters of the committees of our board of directors, as well as our corporate governance guidelines and code of ethics; copies of any of these documents will be provided in print to any shareholder who submits a request in writing to NIKE Investor Relations, One Bowerman Drive, Beaverton, Oregon 97005-6453.
Our principal business activity is the design, development and worldwide marketing of high quality footwear, apparel, equipment, and accessory products. NIKE is the largest seller of athletic footwear and athletic apparel in the world. We sell our products to retail accounts, through NIKE-owned retail including stores and internet sales, and through a mix of independent distributors and licensees, in over 180 countries around the world. Virtually all of our products are manufactured by independent contractors. Virtually all footwear and apparel products are produced outside the United States, while equipment products are produced both in the United States and abroad.
NIKEs athletic footwear products are designed primarily for specific athletic use, although a large percentage of the products are worn for casual or leisure purposes. We place considerable emphasis on high quality construction and innovation in products designed for men, women and children. Running, training, basketball, soccer, sport-inspired urban shoes, and childrens shoes are currently our top-selling footwear categories and we expect them to continue to lead in product sales in the near future. We also market shoes designed for aquatic activities, baseball, bicycling, cheerleading, football, golf, lacrosse, outdoor activities, skateboarding, tennis, volleyball, walking, wrestling, and other athletic and recreational uses.
We sell sports apparel and accessories covering most of the above categories, sports-inspired lifestyle apparel, as well as athletic bags and accessory items. NIKE apparel and accessories are designed to complement our athletic footwear products, feature the same trademarks and are sold through the same marketing and distribution channels. We often market footwear, apparel and accessories in collections of similar design or for specific purposes. We also market apparel with licensed college and professional team and league logos.
We sell a line of performance equipment under the NIKE brand name, including bags, socks, sport balls, eyewear, timepieces, electronic devices, bats, gloves, protective equipment, golf clubs, and other equipment designed for sports activities. We also have agreements for licensees to produce and sell NIKE brand swimwear, team sports apparel, training equipment, childrens clothing, electronic devices, eyewear, golf accessories, and belts. We also sell small amounts of various plastic products to other manufacturers through our wholly-owned subsidiary, NIKE IHM, Inc.
Our wholly-owned subsidiary, Cole Haan (Cole Haan), headquartered in Yarmouth, Maine, designs and distributes dress and casual footwear, apparel and accessories for men and women under the brand names Cole Haan ® and Bragano ® .
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Our wholly-owned subsidiary, Converse Inc. (Converse), headquartered in North Andover, Massachusetts, designs, distributes, and licenses athletic and casual footwear, apparel and accessories under the Converse ® , Chuck Taylor ® , All Star ® , One Star ® , John Varvatos ® , and Jack Purcell ® trademarks and footwear under the Hurley ® trademark.
Our wholly-owned subsidiary, Hurley International LLC (Hurley), headquartered in Costa Mesa, California, designs and distributes a line of action sports apparel for surfing, skateboarding, and snowboarding, youth lifestyle apparel, and accessories under the Hurley ® trademark.
On March 3, 2008, we acquired all of the capital stock of Umbro Ltd. (Umbro). Headquartered in Manchester, England. Umbro designs, distributes, and licenses athletic and casual footwear, apparel and equipment, primarily for the sport of soccer, under the Umbro trademarks.
Financial information about geographic and segment operations appears in Note 17 of the consolidated financial statements on page 75.
We experience moderate fluctuations in aggregate sales volume during the year. Historically, revenues in the first and fourth fiscal quarters have slightly exceeded those in the second and third quarters. However, the mix of product sales may vary considerably from time to time as a result of changes in seasonal and geographic demand for particular types of footwear, apparel and equipment.
Because NIKE is a consumer products company, the relative popularity of various sports and fitness activities and changing design trends affect the demand for our products. We must therefore respond to trends and shifts in consumer preferences by adjusting the mix of existing product offerings, developing new products, styles and categories, and influencing sports and fitness preferences through aggressive marketing. Failure to respond in a timely and adequate manner could have a material adverse effect on our sales and profitability. This is a continuing risk.
In fiscal 2008, sales in the United States including U.S. sales of Cole Haan, Converse, Exeter Brands Group (which we sold in December, 2007), Hurley, Umbro, NIKE Bauer Hockey (which we sold in April, 2008) and NIKE Golf accounted for approximately 43 percent of total revenues, compared to 47 percent in fiscal 2007 and 47 percent in fiscal 2006. We estimate that we sell to more than 25,000 retail accounts in the United States. The NIKE brand domestic retail account base includes a mix of footwear stores, sporting goods stores, athletic specialty stores, department stores, skate, tennis and golf shops, and other retail accounts. During fiscal year 2008, our three largest customers accounted for approximately 24 percent of NIKE brand sales in the United States.
We make substantial use of our futures ordering program, which allows retailers to order five to six months in advance of delivery with the commitment that their orders will be delivered within a set time period at a fixed price. In fiscal year 2008, 86 percent of our U.S. wholesale footwear shipments (excluding Cole Haan, Converse, Exeter Brands Group, Hurley, NIKE Golf, Umbro, and NIKE Bauer Hockey) were made under the futures program, compared to 94 percent in fiscal 2007 and 90 percent in fiscal 2006. In fiscal 2008, 62 percent of our U.S. wholesale apparel shipments (excluding Cole Haan, Converse, Exeter Brands Group, Hurley, NIKE Golf, Umbro, and NIKE Bauer Hockey) were made under the futures program, compared to 65 percent in fiscal 2007 and 2006.
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We utilize 18 NIKE sales offices to solicit sales in the United States. We also utilize 4 independent sales representatives to sell specialty products for golf, and 2 for skating and outdoor products. In addition, we sell NIKE brand products through our internet website, www.nikestore.com , and we operate the following retail outlets in the United States:
U.S. Retail Stores |
Number | |
NIKE factory stores (which carry primarily overstock and close-out merchandise) |
121 | |
NIKE stores (including one NIKE Women store) |
14 | |
NIKETOWNs (designed to showcase NIKE products) |
12 | |
NIKE employee-only stores |
3 | |
Cole Haan stores (including factory and employee stores) |
102 | |
Converse stores (including factory and employee stores) |
35 | |
Hurley stores |
9 | |
Total |
296 | |
NIKEs United States distribution centers for footwear are located in Wilsonville, Oregon, and Memphis, Tennessee. Apparel and equipment products are shipped from our Memphis, Tennessee, Tigard, Oregon, and Foothill Ranch, California distribution centers. Cole Haan products are distributed primarily from Greenland, New Hampshire, Converse products are shipped from Ontario, California, and Hurley products are distributed from Irvine, California.
In fiscal 2008, non-U.S. sales (including non-U.S. sales of Cole Haan, Converse, Exeter Brands Group, Hurley, NIKE Bauer Hockey, Umbro, and NIKE Golf) accounted for 57 percent of total revenues, compared to 53 percent in fiscal 2007 and 53 percent in fiscal 2006. We sell our products to retail accounts, through NIKE-owned retail stores, and through a mix of independent distributors and licensees around the world. We estimate that we sell to more than 27,000 retail accounts outside the United States, excluding sales by independent distributors and licensees. We operate 11 distribution centers outside of the United States. In many countries and regions, including Canada, Asia, some Latin American countries, and Europe, we have a futures ordering program for retailers similar to the United States futures program described above. NIKEs three largest customers outside of the U.S. accounted for approximately 9 percent of total non-U.S. sales.
We operate the following retail outlets outside the United States:
Non-U.S. Retail Stores |
Number | |
NIKE factory stores |
141 | |
NIKE stores |
46 | |
NIKETOWNs |
3 | |
NIKE employee-only stores |
12 | |
Cole Haan stores |
57 | |
Hurley stores |
1 | |
Total |
260 | |
International branch offices and subsidiaries of NIKE are located in Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Chile, Croatia, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hong Kong, Hungary, Indonesia, India, Ireland, Israel, Italy, Japan, Korea, Lebanon, Macau, Malaysia, Mexico, New Zealand, the Netherlands, Norway, Peoples Republic of China, the Philippines, Poland, Portugal, Russia, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Taiwan, Thailand, Turkey, the United Arab Emirates, the United Kingdom, Uruguay and Vietnam.
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No customer accounted for 10 percent or more of our net sales during fiscal 2008.
Worldwide futures and advance orders for NIKE brand athletic footwear and apparel, scheduled for delivery from June through November 2008, were $8.8 billion compared to $7.7 billion for the same period last year. This futures and advance order amount is calculated based upon our forecast of the actual exchange rates under which our revenues will be translated during this period, which approximate current spot rates. Based upon historical data, we expect that approximately 95 percent of these orders will be filled in that time period, although some orders may be cancelled. Reported futures and advance orders are not necessarily indicative of our expectation of revenues for this period. This is because the mix of orders can shift between advance/futures and at-once orders. In addition, foreign currency exchange rate fluctuations as well as differing levels of order cancellations and discounts can cause differences in the comparisons between futures and advance orders and actual revenues. Moreover, a significant portion of our revenue is not derived from futures and advance orders, including at-once and close-out sales of NIKE footwear and apparel, wholesale sales of equipment, Cole Haan, Converse, Hurley, Umbro, NIKE Golf, and retail sales across all brands.
Product Research and Development
We believe that our research and development efforts are a key factor in our past and future success. Technical innovation in the design of footwear, apparel, and athletic equipment receive continued emphasis as NIKE strives to produce products that help to reduce injury, enhance athletic performance and maximize comfort.
In addition to NIKEs own staff of specialists in the areas of biomechanics, exercise physiology, engineering, industrial design and related fields, we also utilize research committees and advisory boards made up of athletes, coaches, trainers, equipment managers, orthopedists, podiatrists and other experts who consult with us and review designs, materials and concepts for product improvement. Employee athletes and other athletes wear-test and evaluate products during the design and development process.
Virtually all of our footwear is produced outside of the United States. In fiscal 2008, contract suppliers in China, Vietnam, Indonesia and Thailand manufactured 36 percent, 33 percent, 21 percent and 9 percent of total NIKE brand footwear, respectively. We also have manufacturing agreements with independent factories in Argentina, Brazil, India, Italy, and South Africa to manufacture footwear for sale primarily within those countries. Our largest single footwear factory accounted for approximately 6 percent of total fiscal 2008 footwear production.
Almost all of NIKE brand apparel production was manufactured outside of the United States by independent contract manufacturers located in 34 countries. Most of this apparel production occurred in China, Thailand, Indonesia, Malaysia, Vietnam, Turkey, Sri Lanka, Honduras, Mexico, Taiwan, Israel, Cambodia, India and Bangladesh. Our largest single apparel factory accounted for approximately 8 percent of total fiscal 2008 apparel production.
The principal materials used in our footwear products are natural and synthetic rubber, plastic compounds, foam cushioning materials, nylon, leather, canvas and polyurethane films used to make Air-Sole cushioning components. NIKE IHM, Inc., and NIKE (Suzhou) Sports Company, Ltd., both wholly-owned subsidiaries of NIKE, and independent contractors in China and Taiwan, are our largest suppliers of the Air-Sole cushioning components used in footwear. The principal materials used in our apparel products are natural and synthetic
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fabrics and threads, plastic and metal hardware, and specialized performance fabrics designed to repel rain, retain heat, or efficiently transport body moisture. NIKEs contractors and suppliers buy raw materials in bulk. Most raw materials are available in the countries where manufacturing takes place. We have thus far experienced little difficulty in satisfying our raw material requirements.
Since 1972, Sojitz Corporation of America (Sojitz America), a large Japanese trading company, has performed significant import-export financing services for us. During fiscal 2008, Sojitz America provided financing and purchasing services for NIKE Brand products sold in Argentina, Uruguay, Canada, Chile, Brazil, India, Indonesia, The Philippines, Malaysia, South Africa, China, Korea, and Thailand excluding products produced and sold in the same country. Approximately 14 percent of NIKE brand sales occurred in those countries. Any failure of Sojitz America to provide these services or any failure of Sojitz Americas banks could disrupt our ability to acquire products from our suppliers and to deliver products to our customers outside of the United States, Europe, Middle East, Africa and Japan. Such a disruption could result in cancelled orders that would adversely affect sales and profitability. However, we believe that any such disruption would be short term in duration due to the ready availability of alternative sources of financing at competitive rates. Our current agreements with Sojitz America expire in 2011.
International Operations and Trade
Our international operations and sources of supply are subject to the usual risks of doing business abroad, such as possible revaluation of currencies, export duties, anti-dumping duties, quotas, safeguard measures, trade restrictions, restrictions on the transfer of funds and, in certain parts of the world, political instability and terrorism. We have not, to date, been materially affected by any such risk, but cannot predict the likelihood of such developments occurring. We believe that we have the ability to develop, over a period of time, adequate alternative sources of supply for the products obtained from our present suppliers outside of the United States. If events prevented us from acquiring products from our suppliers in a particular country, our operations could be temporarily disrupted and we could experience an adverse financial impact. However, we believe that we could abate any such disruption within a period of no more than 12 months, and that much of the adverse impact on supply would, therefore, be of a short-term nature. We believe that our principal competitors are subject to similar risks.
All of our products manufactured overseas and imported into the United States, the European Union (EU) and other countries are subject to customs duties collected by customs authorities. Customs information submitted by us is routinely subject to review by customs authorities. We are unable to predict whether additional customs duties, anti-dumping duties, quotas, safeguard measures, or other trade restrictions may be imposed on the importation of our products in the future. Such actions could result in increases in the cost of our products generally which might adversely affect the sales or profitability of NIKE and the imported footwear and apparel industry as a whole. Accordingly, we are actively monitoring the developments described below.
Footwear Imports into the European Union
From 1994 through January 1, 2005, the EU imposed limits (or quotas) on the import of certain types of footwear manufactured in China. Footwear designed for use in sporting activities, meeting certain technical criteria and having a CIF (cost, insurance and freight) price above nine euros (Special Technology Athletic Footwear or STAF), was excluded from the quotas. As a result of the STAF exclusion, and the amount of quota made available to us, the quotas did not have a material effect on our business. However, as part of Chinas 2001 accession to the World Trade Organization (WTO), China entered into an agreement with the EU and other WTO members to abide by a special safeguard arrangement whereby quotas could be imposed on any product sourced in China, including footwear, if there was a surge in imports from China into another WTO country, and after a legal proceeding it was determined that such imports were injuring a domestic producer. Additionally, under longstanding WTO rules, all WTO member countries reserved the right to impose (1) safeguard measures (temporary quotas) if it can be demonstrated in a legal proceeding that increased imports
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are injuring another WTO members domestic industry; and (2) anti-dumping measures if it can be demonstrated in a legal proceeding that imports are being sold at an unfair low price in another WTO members home market, and those imports were causing or threatening to cause material injury to the domestic industry.
Accordingly, with the phase-out of the quotas at the beginning of 2005, and the expiration of a separate EU anti-dumping case in 2003 against footwear made in China, Indonesia, and Thailand, there has been renewed pressure from some parts of the EU footwear manufacturing sector to re-impose some level of trade protection on imported footwear from China, India, Vietnam, and other exporting countries. In July 2005, the European Commission (EC), at the request of the European domestic footwear industry, initiated investigations into leather footwear imported from China and Vietnam. NIKE and all other major athletic footwear manufacturers participated actively as respondents in this investigation and took the position that athletic footwear (i) should not be within the product scope of the investigation, and (ii) does not meet the legal requirements of injury and price in an anti-dumping investigation. Our arguments were successful and the EU agreed in October 2006 on definitive duties of 16.5% for China and 10% for Vietnam, but excluded STAF from the measures, and also agreed to implement the duties for two years rather than the normal five-year period. As a result, these measures did not significantly impact our business and we believe that our major competitors stand in much the same position regarding these trade measures.
We understand that since the anti-dumping duties on non-STAF leather footwear imposed in 2006 will expire on October 8, 2008 the EU domestic footwear industry has requested that the EC initiate a review of those measures. The EC will scrutinize the request closely, and make a decision by early October 2008 whether to initiate a review, and if so, the scope of that review. If the EC conducts a review, the current definitive anti-dumping duties will remain in force for an additional 15 months until the conclusion of the review in late 2009 or early 2010. It is also possible that the EC could initiate a so-called interim review of the anti-dumping measures, in which case the EC may review the scope of the STAF exemption and the level of the duties, among other things.
Trade Relations with China
China represents an important sourcing and marketing country for us. Many governments around the world are concerned about Chinas growing and fast-paced economy, compliance with WTO rules, currency valuation, and high trade deficits. As a result there is a wide range of legislative proposals that have been introduced to address these concerns. While some of these concerns are justified, we are working with broad coalitions of global businesses and trade associations representing a wide variety of sectors (e.g. services, manufacturing, agriculture) to help ensure that any legislation enacted and implemented (i) addresses legitimate and core concerns, (ii) is consistent with international trade rules, and (iii) is reflective and considerate of Chinas domestic economy and important role in the global economic community. We believe that our major competitors as well as most other multi-national companies stand in much the same position regarding these trade measures.
The athletic footwear, apparel and equipment industry is keenly competitive in the United States and on a worldwide basis. We compete internationally with an increasing number of athletic and leisure shoe companies, athletic and leisure apparel companies, sports equipment companies, and large companies having diversified lines of athletic and leisure shoes, apparel and equipment, including Adidas, Puma, and others. The intense competition and the rapid changes in technology and consumer preferences in the markets for athletic and leisure footwear and apparel, and athletic equipment, constitute significant risk factors in our operations.
NIKE is the largest seller of athletic footwear and athletic apparel in the world. Performance and reliability of shoes, apparel, and equipment, new product development, price, product identity through marketing and promotion, and customer support and service are important aspects of competition in the athletic footwear, apparel and equipment industry. To help market our products, we contract with prominent and influential athletes, coaches, teams, colleges and sports leagues to endorse our brands and use our products, and we actively sponsor sporting events and clinics. We believe that we are competitive in all of these areas.
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We utilize trademarks on nearly all of our products and believe that having distinctive marks that are readily identifiable is an important factor in creating a market for our goods, in identifying the Company, and in distinguishing our goods from the goods of others. We consider our NIKE ® and Swoosh Design ® trademarks to be among our most valuable assets and we have registered these trademarks in over 100 countries. In addition, we own many other trademarks that we utilize in marketing our products. We continue to vigorously protect our trademarks against infringement.
NIKE has an exclusive, worldwide license to make and sell footwear using patented Air technology. The process utilizes pressurized gas encapsulated in polyurethane. Some of the early NIKE AIR ® patents have expired, which may enable competitors to use certain types of similar technology. Subsequent NIKE AIR ® patents will not expire for several years. We also have hundreds of U.S. and foreign utility patents, and thousands of U.S. and foreign design patents covering components and features used in various athletic and leisure shoes, apparel, and equipment. These patents expire at various times, and patents issued for applications filed this year will have a remaining duration of from now to 2022 for design patents, and from now to 2028 for utility patents. We believe that our success depends primarily upon skills in design, research and development, production and marketing rather than upon our patent position. However, we have followed a policy of filing applications for United States and foreign patents on inventions, designs and improvements that we deem valuable.
We had approximately 32,500 employees at May 31, 2008. Management considers its relationship with employees to be excellent. None of our employees is represented by a union, with the exception of 23 employees in Mexico, the collective bargaining agreement for which expires in 2009. Also, in some countries outside of the United States, local laws require representation for employees by works councils (such as in the EU, in which they are entitled to information and consultation on certain Company decisions) or other representation by an organization similar to a union, although collective bargaining agreements are not involved. There has never been a material interruption of operations due to labor disagreements.
Executive Officers of the Registrant
The executive officers of NIKE as of July 25, 2008 are as follows:
Philip H. Knight, Chairman of the Board Mr. Knight, 70, a director since 1968, is a co-founder of NIKE and, except for the period from June 1983 through September 1984, served as its President from 1968 to 1990, and from June 2000 to December 2004. Prior to 1968, Mr. Knight was a certified public accountant with Price Waterhouse and Coopers & Lybrand and was an Assistant Professor of Business Administration at Portland State University.
Mark G. Parker, Chief Executive Officer and President Mr. Parker, 52, was appointed CEO and President in January 2006. He has been employed by NIKE since 1979 with primary responsibilities in product research, design and development, marketing, and brand management. Mr. Parker was appointed divisional Vice President in charge of development in 1987, corporate Vice President in 1989, General Manager in 1993, Vice President of Global Footwear in 1998, and President of the NIKE Brand in 2001.
David J. Ayre, Vice President, Global Human Resources Mr. Ayre, 48, joined NIKE as Vice President, Global Human Resources in July 2007. Prior to joining NIKE, he held a number of senior human resource positions with Pepsico, Inc. since 1990, most recently as head of Talent and Performance Rewards.
Lewis L. Bird III, President, Affliates Mr. Bird, 44, joined NIKE in July 2006 as President, Affiliates, which currently includes the businesses of Cole Haan, Converse, Hurley, and Umbro. Prior to joining NIKE, he held a number of management positions within multinational companies with diverse brand portfolios. He was
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Executive Vice President of New Business Development for Gap Inc. from September 2005 to March 2006. Prior to that, Mr. Bird served as Chief Operating Officer of Gap Inc.s North American division from March 2003 to September 2005, Chief Financial Officer of Gap Inc.s Old Navy division from 2001 to 2003, Vice President Finance & Operations of Gateway, Inc. from 1999 to 2001, Director of Business Analysis & Planning at AlliedSignal Inc. from 1998 to 1999, and prior to that held financial management positions with AlliedSignal, Ford Motor Company and BayBanks, Inc.
Donald W. Blair, Vice President and Chief Financial Officer Mr. Blair, 50, joined NIKE in November 1999. Prior to joining NIKE, he held a number of financial management positions with Pepsico, Inc., including Vice President, Finance of Pepsi-Cola Asia, Vice President, Planning of PepsiCos Pizza Hut Division, and Senior Vice President, Finance of The Pepsi Bottling Group, Inc. Prior to joining Pepsico, Mr. Blair was a certified public accountant with Deloitte, Haskins, and Sells.
Charles D. Denson, President of the NIKE Brand Mr. Denson, 52, has been employed by NIKE since 1979. Mr. Denson held several management positions within the Company, including his appointments as Director of USA Apparel Sales in 1994, divisional Vice President, U.S. Sales in 1994, divisional Vice President European Sales in 1997, divisional Vice President and General Manager, NIKE Europe in 1998, Vice President and General Manager of NIKE USA in 2000, and President of the NIKE Brand in 2001.
Gary M. DeStefano, President of Global Operations Mr. DeStefano, 51, has been employed by NIKE since 1982, with primary responsibilities in sales and regional administration. Mr. DeStefano was appointed Director of Domestic Sales in 1990, divisional Vice President in charge of domestic sales in 1992, Vice President of Global Sales in 1996, Vice President and General Manager of Asia Pacific in 1997, President of USA Operations in 2001 and President of Global Operations in 2006.
Trevor Edwards, Vice President, Global Brand and Category Management Mr. Edwards, 45, joined NIKE in 1992. He was appointed Marketing Manager, Strategic Accounts, Foot Locker in 1993, Director of Marketing, the Americas in 1995, Director of Marketing, Europe in 1997, Vice President, Marketing for Europe, Middle East and Africa in 1999, and Vice President, U.S. Brand Marketing in 2000. Mr. Edwards was appointed corporate Vice President, Global Brand Management in 2002 and Vice President, Global Brand and Category Management in 2006.
Ronald D. McCray, Vice President, Chief Administrative Officer Mr. McCray, 51, joined NIKE as Vice President, Chief Administrative Officer in August 2007. Prior to joining NIKE, he held a number of positions at Kimberly-Clark Corporation since 1987, most recently as Senior Vice President, Law and Government Affairs and Chief Compliance Officer. Mr. McCray is a member of the Council of Foreign Relations.
Bernard F. Pliska, Vice President, Corporate Controller Mr. Pliska, 46, joined NIKE as Corporate Controller in 1995. He was appointed Vice President, Corporate Controller in 2003. Prior to NIKE, Mr. Pliska was with Price Waterhouse from 1984 to 1995. Mr. Pliska is a certified public accountant.
John F. Slusher, Vice President, Global Sports Marketing Mr. Slusher, 39, has been employed by NIKE since 1998 with primary responsibilities in global sports marketing. Mr. Slusher was appointed Director of Sports Marketing for the Asia Pacific and Americas regions in 2006, divisional Vice President, Asia Pacific & Americas Sports Marketing in September 2007 and Vice President, Global Sports Marketing in November 2007. Prior to joining NIKE, Mr. Slusher was an attorney at the law firm of OMelveny & Myers from 1995 to 1998.
Eric D. Sprunk, Vice President, Global Footwear Mr. Sprunk, 44, joined NIKE in 1993. He was appointed Finance Director and General Manager of the Americas in 1994, Finance Director, NIKE Europe in 1995, Regional General Manager, NIKE Europe Footwear in 1998, and Vice President & General Manager of the Americas in 2000. Mr. Sprunk was appointed corporate Vice President, Global Footwear in 2001. Prior to joining NIKE, Mr. Sprunk was a certified public accountant with Price Waterhouse from 1987 to 1993.
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Hans van Alebeek, Vice President, Global Operations & Technology Mr. van Alebeek, 42, joined NIKE as Director of Operations of Europe in 1999, and was appointed Vice President, Operations & Administration in EMEA in 2001, Vice President, Global Operations in 2003, Vice President, Global Operations & Technology in 2004, and Corporate Vice President in November 2005. Prior to joining NIKE, Mr. van Alebeek worked for McKinsey & Company as a management consultant, and at N.V. Indivers in business development.
Item 1A. | Risk Factors |
Special Note Regarding Forward-Looking Statements and Analyst Reports
Certain written and oral statements, other than purely historical information, including estimates, projections, statements relating to NIKEs business plans, objectives and expected operating results, and the assumptions upon which those statements are based, made or incorporated by reference from time to time by NIKE or its representatives in this report, other reports, filings with the Securities and Exchange Commission, or SEC, press releases, conferences, or otherwise, are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements include, without limitation, any statement that may predict, forecast, indicate, or imply future results, performance, or achievements, and may contain the words believe, anticipate, expect, estimate, project, will be, will continue, will likely result, or words or phrases of similar meaning. Forward-looking statements involve risks and uncertainties which may cause actual results to differ materially from the forward-looking statements. The risks and uncertainties are detailed from time to time in reports filed by NIKE with the SEC, including Forms 8-K, 10-Q, and 10-K, and include, among others, the following: international, national and local general economic and market conditions; the size and growth of the overall athletic footwear, apparel, and equipment markets; intense competition among designers, marketers, distributors and sellers of athletic footwear, apparel, and equipment for consumers and endorsers; demographic changes; changes in consumer preferences; popularity of particular designs, categories of products, and sports; seasonal and geographic demand for NIKE products; difficulties in anticipating or forecasting changes in consumer preferences, consumer demand for NIKE products, and the various market factors described above; difficulties in implementing, operating, and maintaining NIKEs increasingly complex information systems and controls, including, without limitation, the systems related to demand and supply planning, and inventory control; interruptions in data and communications systems; fluctuations and difficulty in forecasting operating results, including, without limitation, the fact that advance futures orders may not be indicative of future revenues due to the changing mix of futures and at-once orders, currency exchange rate fluctuations, order cancellations, and the fact that a significant portion of our revenue is not derived from futures orders; the ability of NIKE to sustain, manage or forecast its growth and inventories; the size, timing and mix of purchases of NIKEs products; increases in the cost of materials and energy used to manufacture products, new product development and introduction; the ability to secure and protect trademarks, patents, and other intellectual property; performance and reliability of products; customer service; adverse publicity; the loss of significant customers or suppliers; dependence on distributors; business disruptions; increased costs of freight and transportation to meet delivery deadlines; increases in borrowing costs due to any decline in our debt ratings; changes in business strategy or development plans; general risks associated with doing business outside the United States, including without limitation, import duties, tariffs, quotas, political and economic instability, and terrorism; changes in government regulations; liability and other claims asserted against NIKE; the ability to attract and retain qualified personnel; and other factors referenced or incorporated by reference in this report and other reports.
The risks included here are not exhaustive. Other sections of this report may include additional factors which could adversely affect NIKEs business and financial performance. Moreover, NIKE operates in a very competitive and rapidly changing environment. New risk factors emerge from time to time and it is not possible for management to predict all such risk factors, nor can it assess the impact of all such risk factors on NIKEs business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements. Given these risks and uncertainties, investors should not place undue reliance on forward-looking statements as a prediction of actual results.
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Our products face intense competition.
NIKE is a consumer products company and the relative popularity of various sports and fitness activities and changing design trends affect the demand for our products. The athletic footwear, apparel and equipment industry is keenly competitive in the United States and on a worldwide basis. We compete internationally with an increasing number of athletic and leisure shoe companies, athletic and leisure apparel companies, sports equipment companies, and large companies having diversified lines of athletic and leisure shoes, apparel and equipment. We also compete with other companies for the production capacity of independent manufacturers that produce our products and for import quota capacity.
Our competitors product offerings, technologies, marketing expenditures (including for advertising and endorsements), pricing, costs of production, and customer service are areas of intense competition. This, in addition to rapid changes in technology and consumer preferences in the markets for athletic and leisure footwear and apparel, and athletic equipment, constitute significant risk factors in our operations. If we do not adequately and timely anticipate and respond to our competitors, our costs may increase or the consumer demand for our products may decline significantly.
If we are unable to anticipate consumer preferences and develop new products, we may not be able to maintain or increase our net revenues and profits.
Our success depends on our ability to identify, originate and define product trends as well as to anticipate, gauge and react to changing consumer demands in a timely manner. All of our products are subject to changing consumer preferences that cannot be predicted with certainty. Our new products may not receive consumer acceptance as consumer preferences could shift rapidly to different types of performance or other sports apparel or away from these types of products altogether, and our future success depends in part on our ability to anticipate and respond to these changes. If we fail to anticipate accurately and respond to trends and shifts in consumer preferences by adjusting the mix of existing product offerings, developing new products, designs, styles and categories, and influencing sports and fitness preferences through aggressive marketing, we could experience lower sales, excess inventories and lower profit margins, any of which could have an adverse effect on our results of operations and financial condition.
We rely on technical innovation and high quality products to compete in the market for our products.
Although design and aesthetics of our products appear to be the most important factor for consumer acceptance of our products, technical innovation and quality control in the design of footwear, apparel, and athletic equipment is also essential to the commercial success of our products. Research and development plays a key role in technical innovation. We rely upon specialists in the fields of biomechanics, exercise physiology, engineering, industrial design and related fields, as well as research committees and advisory boards made up of athletes, coaches, trainers, equipment managers, orthopedists, podiatrists and other experts to develop and test cutting edge performance products. While we strive to produce products that help to reduce injury, enhance athletic performance and maximize comfort, if we fail to introduce technical innovation in our products the consumer demand for our products could decline, and if we experience problems with the quality of our products, we may incur substantial expense to remedy the problems.
Failure to continue to obtain high quality endorsers of our products could harm our business.
We establish relationships with professional athletes and sports teams and leagues to evaluate and promote our products, and establish the authenticity of our products with consumers. If certain of our endorsers were to stop using our products contrary to their endorsement agreements, our business could be adversely affected. In addition, actions taken by athletes, teams or leagues associated with our products that harm the reputations of those athletes, teams or leagues could also harm our brand image with consumers and, as a result, could have an adverse effect on our sales and financial condition. In addition, poor performance by our endorsers, a failure to continue to correctly identify promising athletes to use and endorse our products, or a failure to enter into cost effective endorsement arrangements with prominent athletes and sports organizations could adversely affect our brand and result in decreased sales of our products.
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Failure of our contractors to comply with our code of conduct, local laws, and other standards could harm our business.
We contract with hundreds of contractors outside of the United States to manufacture NIKE Brand products, and we impose on those contractors a code of conduct and other environmental, health, and safety standards for the benefit of workers. However, from time to time contractors may not be in compliance with such standards or applicable local law. Significant or continuing noncompliance with such standards and laws by one or more contractors could harm our reputation and, as a result, could have an adverse effect on our sales and financial condition.
Our business is affected by seasonality, which could result in fluctuations in our operating results and stock price.
We experience moderate fluctuations in aggregate sales volume during the year. Historically, revenues in the first and fourth fiscal quarters have slightly exceeded those in the second and third fiscal quarters. However, the mix of product sales may vary considerably from time to time as a result of changes in seasonal and geographic demand for particular types of footwear, apparel and equipment. In addition, our customers may cancel orders, change delivery schedules or change the mix of products ordered with minimal notice. As a result, we may not be able to accurately predict our quarterly sales. Accordingly, our results of operations are likely to fluctuate significantly from period to period. This seasonality, along with other factors that are beyond our control, including general economic conditions, changes in consumer preferences, weather conditions, availability of import quotas and currency exchange rate fluctuations, could adversely affect our business and cause our results of operations to fluctuate. Our operating margins are also sensitive to a number of factors that are beyond our control, including shifts in product sales mix, geographic sales trends, and currency exchange rate fluctuations, all of which we expect to continue. Results of operations in any period should not be considered indicative of the results to be expected for any future period.
Futures orders may not be an accurate indication of our future revenues.
We make substantial use of our futures ordering program, which allows retailers to order five to six months in advance of delivery with the commitment that 90 percent of their orders will be delivered within a set period at a fixed price. Our futures ordering program allows us to minimize the amount of products we hold in inventory, purchasing costs, the time necessary to fill customer orders, and the risk of non-delivery. We report changes in futures orders in our periodic financial reports. Although we believe futures orders are an important indicator of our future revenues, reported futures orders are not necessarily indicative of our expectation of changes in revenues for any future period. This is because the mix of orders can shift between advance/futures and at-once orders. In addition, foreign currency exchange rate fluctuations, order cancellations, returns, and discounts can cause differences in the comparisons between futures orders and actual revenues. Moreover, a significant portion of our revenue is not derived from futures orders, including at-once close-out sales of NIKE footwear and apparel, wholesale sales of equipment, Cole Haan, Converse, Exeter Brands Group, Hurley, NIKE Bauer Hockey, NIKE Golf, and retail sales across all brands.
Our futures ordering program does not prevent excess inventories or inventory shortages, which could result in decreased operating margins and harm to our business.
We purchase products from manufacturers outside of our futures ordering program and in advance of customer orders, which we hold in inventory and re-sell to customers. There is a risk that we may be unable to sell excess products that we have ordered from manufacturers. Inventory levels in excess of customer demand may result in inventory write-downs, and the sale of excess inventory at discounted prices could significantly impair our brand image and have an adverse effect on our operating results and financial condition. Conversely, if we underestimate consumer demand for our products or if our manufacturers fail to supply the products that we require at the time we need them, we may experience inventory shortages. Inventory shortages might delay shipments to customers, negatively impact retailer and distributor relationships, and diminish brand loyalty.
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The difficulty in forecasting demand also makes it difficult to estimate our future results of operations and financial condition from period to period. A failure to accurately predict the level of demand for our products could adversely affect our net revenues and net income, and we are unlikely to forecast such effects with any certainty in advance.
We may be adversely affected by the financial health of our retailers.
We extend credit to our customers based on an assessment of a customers financial condition, generally without requiring collateral. To assist in the scheduling of production and the shipping of seasonal products, we offer customers the ability to place orders five to six months ahead of delivery under our futures ordering program. These advance orders may be cancelled, and the risk of cancellation may increase when dealing with financially ailing retailers or retailers struggling with economic uncertainty. In the past, some customers have experienced financial difficulties, which in turn have had an adverse effect on our business. From time to time retailers will be more cautious than usual with orders as a result of weakness in the retail economy. A slowing economy in our key markets could have an adverse effect on the financial health of our customers, which could in turn have an adverse effect on our results of operations and financial condition. In addition, sales of our products depend in part on high quality merchandising and an appealing store environment to attract consumers, which requires continuing investments by retailers. Retailers who experience financial difficulties may fail to make such investments or delay them, resulting in reduced sales of and orders for our products.
Consolidation of retailers or concentration of retail market share among a few retailers may increase and concentrate our credit risk, and impair our ability to sell our products.
The athletic footwear, apparel, and equipment retail markets in some countries are dominated by a few large athletic footwear, apparel, and equipment retailers with many stores. These significant retailers have been increasing their market share by expanding through acquisitions and construction of additional stores. These situations concentrate our credit risk in a relatively small number of retailers, and, if any of these retailers were to experience a shortage of liquidity, it would increase the risk that their outstanding payables to us may not be paid. In addition, increasing market share concentration among one or a few retailers in a particular country or region increases the risk that if any one of them substantially reduces their purchases of our products, we may be unable to find a sufficient number of other retail outlets for our products to sustain the same level of sales and revenues.
Failure to adequately protect our intellectual property rights could adversely affect our business.
We utilize trademarks on nearly all of our products and believe that having distinctive marks that are readily identifiable is an important factor in creating a market for our goods, in identifying us, and in distinguishing our goods from the goods of others. We consider our NIKE ® and Swoosh Design ® trademarks to be among our most valuable assets and we have registered these trademarks in over 100 countries. In addition, we own many other trademarks that we utilize in marketing our products. We believe that our trademarks, patents, and other intellectual property rights are important to our brand, our success and our competitive position. We periodically discover products that are counterfeit reproductions of our products or that otherwise infringe on our intellectual property rights. If we are unsuccessful in challenging a partys products on the basis of trademark or design or utility patent infringement, continued sales of these products could adversely affect our sales and our brand and result in the shift of consumer preference away from our products. The actions we take to establish and protect trademarks, patents, and other intellectual property rights may not be adequate to prevent imitation of our products by others or to prevent others from seeking to block sales of our products as violations of proprietary rights.
In addition, the laws of certain foreign countries may not protect intellectual property rights to the same extent as do the laws of the United States. We may face significant expenses and liability in connection with the protection of our intellectual property rights outside the United States, and if we are unable to successfully protect our rights or resolve intellectual property conflicts with others, our business or financial condition may be adversely affected.
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We are subject to periodic litigation and other regulatory proceedings, which could result in unexpected expense of time and resources.
We are a defendant from time to time in lawsuits and regulatory actions relating to our business. Due to the inherent uncertainties of litigation and regulatory proceedings, we cannot accurately predict the ultimate outcome of any such proceedings. An unfavorable outcome could have an adverse impact on our business, financial condition and results of operations. In addition, any significant litigation in the future, regardless of its merits, could divert managements attention from our operations and result in substantial legal fees.
Our international operations involve inherent risks which could result in harm to our business.
Virtually all of our athletic footwear and apparel is manufactured outside of the United States, and the majority of our products are sold outside of the United States. Accordingly, we are subject to the risks generally associated with global trade and doing business abroad, which include foreign laws and regulations, varying consumer preferences across geographic regions, political unrest, disruptions or delays in cross-border shipments and changes in economic conditions in countries in which we manufacture or sell products. In addition, disease outbreaks, terrorist acts and military conflict have increased the risks of doing business abroad. These factors, among others, could affect our ability to manufacture products or procure materials, our ability to import products, our ability to sell products in international markets, and our cost of doing business. If any of these or other factors make the conduct of business in a particular country undesirable or impractical, our business could be adversely affected. In addition, many of our imported products are subject to duties, tariffs or quotas that affect the cost and quantity of various types of goods imported into the United States and other countries. Any country in which our products are produced or sold may eliminate, adjust or impose new quotas, duties, tariffs, safeguard measures, anti-dumping duties, cargo restrictions to prevent terrorism, restrictions on the transfer of currency, or other charges or restrictions, any of which could have an adverse effect on our results of operations and financial condition.
Currency exchange rate fluctuations could result in higher costs and decreased margins.
A majority of our products are sold outside of the United States. As a result, we conduct transactions in various currencies, which increases our exposure to fluctuations in foreign currency exchange rates relative to the U.S. dollar. Our international revenues and expenses generally are derived from sales and operations in foreign currencies, and these revenues and expenses could be affected by currency fluctuations, including amounts recorded in foreign currencies and translated into U.S. dollars for consolidated financial reporting. Currency exchange rate fluctuations could also disrupt the business of the independent manufacturers that produce our products by making their purchases of raw materials more expensive and more difficult to finance. Foreign currency fluctuations could have an adverse effect on our results of operations and financial condition.
We engage in hedging activities to mitigate the impact of foreign currencies on our financial results. See Note 16 to our financial statements, Risk Management and Derivatives. Our hedging activities are designed to reduce and delay, but not to completely eliminate, the effects of foreign currency fluctuations. Factors that could affect the effectiveness of our hedging activities include accuracy of sales forecasts, volatility of currency markets, and the availability of hedging instruments. Since the hedging activities are designed to reduce volatility, they not only reduce the negative impact of a stronger U.S. dollar, but they also reduce the positive impact of a weaker U.S. dollar. Our future financial results could be significantly affected by the value of the U.S. dollar in relation to the foreign currencies in which we conduct business. The degree to which our financial results are affected for any given time period will depend in part upon our hedging activities.
Our products are subject to risks associated with overseas sourcing, manufacturing, and financing.
The principal materials used in our apparel products natural and synthetic fabrics and threads, plastic and metal hardware, and specialized performance fabrics designed to repel rain, retain heat, or efficiently transport body moisture are available in countries where our manufacturing takes place. The principal materials used in
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our footwear products natural and synthetic rubber, plastic compounds, foam cushioning materials, nylon, leather, canvas and polyurethane films are also locally available to manufacturers. NIKE contractors and suppliers buy raw materials in bulk.
There could be a significant disruption in the supply of fabrics or raw materials from current sources or, in the event of a disruption, we might not be able to locate alternative suppliers of materials of comparable quality at an acceptable price, or at all. In addition, we cannot be certain that our unaffiliated manufacturers will be able to fill our orders in a timely manner. If we experience significant increases in demand, or need to replace an existing manufacturer, there can be no assurance that additional supplies of fabrics or raw materials or additional manufacturing capacity will be available when required on terms that are acceptable to us, or at all, or that any supplier or manufacturer would allocate sufficient capacity to us in order to meet our requirements. In addition, even if we are able to expand existing or find new manufacturing or sources of materials, we may encounter delays in production and added costs as a result of the time it takes to train our suppliers and manufacturers in our methods, products, quality control standards, and labor, health and safety standards. Any delays, interruption or increased costs in the supply of materials or manufacture of our products could have an adverse effect on our ability to meet retail customer and consumer demand for our products and result in lower revenues and net income both in the short and long term.
Because independent manufacturers manufacture a majority of our products outside of our principal sales markets, our products must be transported by third parties over large geographic distances. Delays in the shipment or delivery of our products due to the availability of transportation, work stoppages, port strikes, infrastructure congestion, or other factors, and costs and delays associated with transitioning between manufacturers, could adversely impact our financial performance. In addition, manufacturing delays or unexpected demand for our products may require us to use faster, but more expensive, transportation methods such as aircraft, which could adversely affect our profit margins. The cost of fuel is a significant component in manufacturing and transportation costs, so increases in the price of petroleum products can adversely affect our profit margins.
In addition, Sojitz America performs significant import-export financing services for most of the NIKE brand products sold outside of the United States, Europe, Middle East, Africa and Japan, excluding products produced and sold in the same country. Any failure of Sojitz America to provide these services or any failure of Sojitz Americas banks could disrupt our ability to acquire products from our suppliers and to deliver products to our customers outside of the United States, Europe, Middle East, Africa, and Japan. Such a disruption could result in cancelled orders that would adversely affect sales and profitability.
Our success depends on our global distribution facilities.
We distribute our products to customers directly from the factory and through distribution centers located throughout the world. Our ability to meet customer expectations, manage inventory, complete sales and achieve objectives for operating efficiencies depends on the proper operation of our distribution facilities, the development or expansion of additional distribution capabilities, and the timely performance of services by third parties (including those involved in shipping product to and from our distribution facilities). Our distribution facilities could be interrupted by information technology problems and disasters such as earthquakes or fires. Any significant failure in our distribution facilities could result in an adverse affect on our business. We maintain business interruption insurance, but it may not adequately protect us from any adverse effects that could be caused by significant disruptions in our distribution facilities.
We rely significantly on information technology in our supply chain, and any failure, inadequacy, interruption or security failure of that technology could harm our ability to effectively operate our business.
We are heavily dependent on information technology systems across our supply chain, including for design, production, forecasting, ordering, manufacturing, transportation, sales, and distribution. Our ability to effectively manage and maintain our inventory and to ship products to customers on a timely basis depends significantly on
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the reliability of these supply chain systems. Over the last several years, as part of the ongoing initiative to upgrade our worldwide supply chain, we have implemented new systems in all of our geographical regions in which we operate. Over the next few years, we will work to continue to enhance the systems and related processes in our global operations. The failure of these systems to operate effectively, problems with transitioning to upgraded or replacement systems, or a breach in security of these systems could cause delays in product fulfillment and reduced efficiency of our operations, and it could require significant capital investments to remediate the problem, and may have an adverse effect on our results of operations and financial condition.
Our financial results may be adversely affected if substantial investments in businesses and operations fail to produce expected returns.
From time to time, we may invest in business infrastructure, acquisitions of new businesses, and expansion of existing businesses, such as our retail operations, which require substantial cash investments and management attention. We believe cost effective investments are essential to business growth and profitability. However, significant investments are subject to typical risks and uncertainties inherent in acquiring or expanding a business. The failure if any significant investment to provide the returns or profitability that we expect could have a material adverse effect on our financial results and divert management attention from more profitable business operations.
We depend on key personnel, the loss of whom would harm our business.
Our future success will depend in part on the continued service of key executive officers and personnel. The loss of the services of any key individuals could harm us. Our future success also depends on our ability to identify, attract and retain additional qualified personnel. Competition for employees in our industry is intense and we may not be successful in attracting and retaining such personnel.
The sale of a large number of shares held by our Chairman could depress the market price of our common stock.
Philip H. Knight, Co-founder and Chairman of our Board of Directors, beneficially owns over 90 percent of our Class A Common Stock. If all of his Class A Common Stock were converted into Class B Common Stock, Mr. Knight would own over 18 percent of our Class B Common Stock. These shares are available for resale, subject to the requirements of the U.S. securities laws. The sale or prospect of the sale of a substantial number of these shares could have an adverse effect on the market price of our common stock.
Anti-takeover provisions may impair an acquisition of the company or reduce the price of our common stock.
There are provisions of our articles of incorporation and Oregon law that are intended to protect shareholder interests by providing the Board of Directors a means to attempt to deny coercive takeover attempts or to negotiate with a potential acquirer in order to obtain more favorable terms. Such provisions include a control share acquisition statute, a freezeout statute, two classes of stock that vote separately on certain issues, and the fact that the holders of Class A Common Stock shares elect three-fourths of the Board of Directors rounded down to the next whole number. However, such provisions could discourage, delay or prevent an unsolicited merger, acquisition or other change in control of our company that some shareholders might believe to be in their best interests, or in which shareholders might receive a premium for their common stock over the prevailing market price. These provisions could also discourage proxy contests for control of the Company.
We may fail to meet analyst expectations, which could cause the price of our stock to decline.
Our common stock is traded publicly, and at any given time various securities analysts follow our financial results and issue reports on us. These reports include information about our historical financial results as well as the analysts estimates of our future performance. The analysts estimates are based upon their own opinions and
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are often different from our estimates or expectations. If our operating results are below the estimates or expectations of public market analysts and investors, our stock price could decline. In the past, securities class action litigation has been brought against NIKE and other companies following a decline in the market price of their securities. If our stock price is volatile, we may become involved in this type of litigation in the future. Any litigation could result in substantial costs and a diversion of managements attention and resources that are needed to successfully run our business.
Item 1B. Unresolved Staff Comments
Not applicable.
The following is a summary of principal properties owned or leased by NIKE.
The NIKE World Campus, owned by NIKE and located in Beaverton, Oregon, USA, is a 176 acre facility of 17 buildings which functions as our world headquarters and is occupied by almost 6,000 employees engaged in management, research, design, development, marketing, finance, and other administrative functions from nearly all of our divisions of the Company. We also lease various office facilities in the surrounding metropolitan area. We lease a similar, but smaller, administrative facility in Hilversum, The Netherlands, which serves as the headquarters for the Europe, Middle East and Africa (EMEA) Region.
There are three significant distribution and customer service facilities for NIKE brand products in the United States. Two of them are located in Memphis, Tennessee, one of which is leased, and one is located in Wilsonville, Oregon, which is also leased. Cole Haan also operates a distribution facility in Greenland, New Hampshire, which is owned by us. Smaller leased distribution facilities for other brands and non-NIKE brand businesses are located in various parts of the United States. We also own or lease distribution and customer service facilities in many parts of the world, the most significant of which are the distribution facilities located in Tomisatomachi, Japan, and in Laakdal, Belgium, both of which we own.
We manufacture NIKE AIR-SOLE cushioning materials and components at NIKE IHM, Inc. manufacturing facilities located in Beaverton, Oregon and St. Charles, Missouri, which are owned by us, and at NIKE (Suzhou) Sports Company, Ltd., facilities in the Peoples Republic of China, which are owned by us.
Aside from the principal properties described above, we lease 6 production offices outside the United States, over 100 sales offices and showrooms worldwide, and over 70 administrative offices worldwide. We lease approximately 556 retail stores worldwide, which consist primarily of factory outlet stores. See United States Market and International Markets on page 4 of this Report. Our leases expire at various dates through the year 2034.
There are no material pending legal proceedings, other than ordinary routine litigation incidental to our business, to which we are a party or of which any of our property is the subject.
Item 4. Submission of Matters to a Vote of Security Holders
No matter was submitted during the fourth quarter of the 2008 fiscal year to a vote of security holders, through the solicitation of proxies or otherwise.
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Item 5. Market for Registrants Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
NIKEs Class B Common Stock is listed on the New York Stock Exchange and trades under the symbol NKE. At July 25, 2008, there were 16,542 holders of record of our Class B Common Stock and 21 holders of record of our Class A Common Stock. These figures do not include beneficial owners who hold shares in nominee name. The Class A Common Stock is not publicly traded but each share is convertible upon request of the holder into one share of Class B Common Stock. The following tables set forth, for each of the quarterly periods indicated, the high and low sales prices for the Class B Common Stock as reported on the New York Stock Exchange Composite Tape and dividends declared on the Class A and Class B Common Stock.
Fiscal 2008 (June 1, 2007 May 31, 2008) |
High | Low |
Dividends
Declared |
||||||
First Quarter |
$ | 60.35 | $ | 51.87 | $ | 0.185 | |||
Second Quarter |
66.57 | 54.15 | 0.23 | ||||||
Third Quarter |
67.93 | 51.50 | 0.23 | ||||||
Fourth Quarter |
70.60 | 56.70 | 0.23 | ||||||
Fiscal 2007 (June 1, 2006 May 31, 2007) |
High | Low |
Dividends
Declared |
||||||
First Quarter |
$ | 42.49 | $ | 37.76 | $ | 0.155 | |||
Second Quarter |
49.65 | 39.93 | 0.185 | ||||||
Third Quarter |
54.45 | 47.40 | 0.185 | ||||||
Fourth Quarter |
57.12 | 51.09 | 0.185 |
The following table presents a summary of share repurchases made by NIKE during the quarter ended May 31, 2008 under the four-year $3.0 billion share repurchase program authorized by our Board of Directors and announced in June 2006.
Period |
Total Number of
Shares Purchased |
Average Price
Paid per Share |
Total Number of Shares
Purchased as Part of Publicly Announced Plans or Programs |
Maximum Dollar
Value of Shares that May Yet Be Purchased Under the Plans or Programs |
||||||
(In thousands) | (In thousands) | (In millions) | ||||||||
March 1 March 31, 2008 |
1,744.0 | $ | 62.01 | 1,744.0 | $ | 1,121.0 | ||||
April 1 April 30, 2008 |
1,641.3 | $ | 67.57 | 1,641.3 | 1,010.1 | |||||
May 1 May 31, 2008 |
1,062.3 | $ | 66.76 | 1,062.3 | 939.2 | |||||
4,447.6 | $ | 65.20 | 4,447.6 | |||||||
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Performance Graph
The following graph demonstrates a five-year comparison of cumulative total returns for NIKEs Class B Common Stock, the Standard & Poors 500 Stock Index, the Standard & Poors Apparel, Accessories & Luxury Goods Index, and the Dow Jones U.S. Footwear Index. The graph assumes an investment of $100 on May 31, 2003 in each of our Class B Common Stock, and the stocks comprising the Standard & Poors 500 Stock Index, the Standard & Poors Apparel, Accessories & Luxury Goods Index, and the Dow Jones U.S. Footwear Index. Each of the indices assumes that all dividends were reinvested.
COMPARISON OF 5-YEAR CUMULATIVE TOTAL RETURN AMONG NIKE, INC., S&P 500
INDEX, S&P APPAREL, ACCESSORIES & LUXURY GOODS INDEX,
AND THE DOW JONES U.S. FOOTWEAR INDEX
The Dow Jones U.S. Footwear Index consists of NIKE, Deckers Outdoor Corp., Timberland Co., Wolverine World Wide, Inc., and Crocs, Inc. Because NIKE is part of the Dow Jones U.S. Footwear Index, the price and returns of NIKE stock have a substantial effect on this index. The Standard & Poors Apparel, Accessories & Luxury Goods Index consists of Liz Claiborne Inc., VF Corp., Coach, Inc., Jones Apparel Group, Inc. and Polo Ralph Lauren Corporation. The Dow Jones U.S. Footwear Index and the Standard & Poors Apparel, Accessories, and Luxury Goods Index include companies in two major lines of business in which the Company competes. The indices do not encompass all of the Companys competitors, nor all product categories and lines of business in which the Company is engaged.
The stock performance shown on the performance graph above is not necessarily indicative of future performance. The Company will not make nor endorse any predictions as to future stock performance.
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Item 6. Selected Financial Data
Financial History | ||||||||||||||||||||
2008 | 2007 | 2006 | 2005 | 2004 | ||||||||||||||||
(In millions, except per share data and financial ratios) (1) | ||||||||||||||||||||
Year Ended May 31, |
||||||||||||||||||||
Revenues |
$ | 18,627.0 | $ | 16,325.9 | $ | 14,954.9 | $ | 13,739.7 | $ | 12,253.1 | ||||||||||
Gross margin |
8,387.4 | 7,160.5 | 6,587.0 | 6,115.4 | 5,251.7 | |||||||||||||||
Gross margin % |
45.0 | % | 43.9 | % | 44.0 | % | 44.5 | % | 42.9 | % | ||||||||||
Net income |
1,883.4 | 1,491.5 | 1,392.0 | 1,211.6 | 945.6 | |||||||||||||||
Basic earnings per common share |
3.80 | 2.96 | 2.69 | 2.31 | 1.80 | |||||||||||||||
Diluted earnings per common share |
3.74 | 2.93 | 2.64 | 2.24 | 1.75 | |||||||||||||||
Weighted average common shares outstanding |
495.6 | 503.8 | 518.0 | 525.2 | 526.4 | |||||||||||||||
Diluted weighted average common shares outstanding |
504.1 | 509.9 | 527.6 | 540.6 | 539.4 | |||||||||||||||
Cash dividends declared per common share |
0.875 | 0.71 | 0.59 | 0.475 | 0.37 | |||||||||||||||
Cash flow from operations |
1,936.3 | 1,878.7 | 1,667.9 | 1,570.7 | 1,518.5 | |||||||||||||||
Price range of common stock |
||||||||||||||||||||
High |
70.60 | 57.12 | 45.77 | 46.22 | 39.28 | |||||||||||||||
Low |
51.50 | 37.76 | 38.27 | 34.31 | 24.80 | |||||||||||||||
At May 31, |
||||||||||||||||||||
Cash and equivalents |
$ | 2,133.9 | $ | 1,856.7 | $ | 954.2 | $ | 1,388.1 | $ | 828.0 | ||||||||||
Short-term investments |
642.2 | 990.3 | 1,348.8 | 436.6 | 400.8 | |||||||||||||||
Inventories |
2,438.4 | 2,121.9 | 2,076.7 | 1,811.1 | 1,650.2 | |||||||||||||||
Working capital |
5,517.8 | 5,492.5 | 4,733.6 | 4,339.7 | 3,498.1 | |||||||||||||||
Total assets |
12,442.7 | 10,688.3 | 9,869.6 | 8,793.6 | 7,908.7 | |||||||||||||||
Long-term debt |
441.1 | 409.9 | 410.7 | 687.3 | 682.4 | |||||||||||||||
Redeemable Preferred Stock |
0.3 | 0.3 | 0.3 | 0.3 | 0.3 | |||||||||||||||
Shareholders equity |
7,825.3 | 7,025.4 | 6,285.2 | 5,644.2 | 4,781.7 | |||||||||||||||
Year-end stock price |
68.37 | 56.75 | 40.16 | 41.10 | 35.58 | |||||||||||||||
Market capitalization |
33,576.5 | 28,472.3 | 20,564.5 | 21,462.3 | 18,724.2 | |||||||||||||||
Financial Ratios: |
||||||||||||||||||||
Return on equity |
25.4 | % | 22.4 | % | 23.3 | % | 23.2 | % | 21.6 | % | ||||||||||
Return on assets |
16.3 | % | 14.5 | % | 14.9 | % | 14.5 | % | 12.8 | % | ||||||||||
Inventory turns |
4.5 | 4.4 | 4.3 | 4.4 | 4.4 | |||||||||||||||
Current ratio at May 31 |
2.7 | 3.1 | 2.8 | 3.2 | 2.7 | |||||||||||||||
Price/Earnings ratio at May 31 |
18.3 | 19.4 | 15.2 | 18.3 | 20.3 |
(1) |
All share and per share information has been restated to reflect the two-for-one stock split effected in the form of a 100% common stock dividend distributed on April 2, 2007. |
20
Selected Quarterly Financial Data
1st Quarter | 2nd Quarter | 3rd Quarter | 4th Quarter | |||||||||||||||||||||||||||||
2008 | 2007 | 2008 | 2007 | 2008 | 2007 | 2008 | 2007 | |||||||||||||||||||||||||
(Unaudited) | ||||||||||||||||||||||||||||||||
(In millions, except per share data) (1) | ||||||||||||||||||||||||||||||||
Revenues |
$ | 4,655.1 | $ | 4,194.1 | $ | 4,339.5 | $ | 3,821.7 | $ | 4,544.4 | $ | 3,926.9 | $ | 5,088.0 | $ | 4,383.2 | ||||||||||||||||
Gross margin |
2,087.0 | 1,849.2 | 1,921.1 | 1,657.1 | 2,047.9 | 1,735.2 | 2,331.4 | 1,919.0 | ||||||||||||||||||||||||
Gross margin % |
44.8 | % | 44.1 | % | 44.3 | % | 43.4 | % | 45.1 | % | 44.2 | % | 45.8 | % | 43.8 | % | ||||||||||||||||
Net income |
569.7 | 377.2 | 359.4 | 325.6 | 463.8 | 350.8 | 490.5 | 437.9 | ||||||||||||||||||||||||
Basic earnings per common share |
1.14 | 0.75 | 0.72 | 0.65 | 0.94 | 0.69 | 1.00 | 0.87 | ||||||||||||||||||||||||
Diluted earnings per common share |
1.12 | 0.74 | 0.71 | 0.64 | 0.92 | 0.68 | 0.98 | 0.86 | ||||||||||||||||||||||||
Weighted average common shares outstanding |
499.4 | 505.4 | 497.6 | 502.4 | 493.9 | 504.5 | 491.4 | 502.8 | ||||||||||||||||||||||||
Diluted weighted average common shares outstanding |
507.3 | 512.0 | 506.2 | 507.3 | 502.5 | 510.8 | 500.1 | 510.2 | ||||||||||||||||||||||||
Cash dividends declared per common share |
0.185 | 0.155 | 0.23 | 0.185 | 0.23 | 0.185 | 0.23 | 0.185 | ||||||||||||||||||||||||
Price range of common stock |
||||||||||||||||||||||||||||||||
High |
60.35 | 42.49 | 66.57 | 49.65 | 67.93 | 54.45 | 70.60 | 57.12 | ||||||||||||||||||||||||
Low |
51.87 | 37.76 | 54.15 | 39.93 | 51.50 | 47.40 | 56.70 | 51.09 |
(1) |
All share and per share information has been restated to reflect the two-for-one stock split affected in the form of a 100% common stock dividend distributed on April 2, 2007. Basic and diluted earnings per common share for the third quarter ended February 28, 2007 do not recalculate due to rounding. |
Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations
Overview
NIKE designs, develops and markets high quality footwear, apparel, equipment and accessory products worldwide. We are the largest seller of athletic footwear and apparel in the world and sell our products primarily through a combination of retail accounts, NIKE-owned retail, including stores and e-commerce, and independent distributors, franchisees and licensees in the United States and worldwide. Our goal is to deliver value to our shareholders by building a profitable global portfolio of branded footwear, apparel, equipment and accessories businesses. Our strategy is to create long-term revenue growth by creating compelling consumer experiences by creating and delivering innovative, must have products; deep personal connections with our brands; and compelling retail presentation.
We strive to convert revenue growth to shareholder value by driving operating excellence in several key areas:
|
Making our supply chain a competitive advantage, through operational discipline |
|
Reducing product costs through a continued focus on lean manufacturing and product design that strives to eliminate waste |
|
Improving selling and administrative expense productivity by focusing on investments that drive economic returns in the form of incremental revenue and gross margin, and leveraging existing infrastructure across our portfolio of brands to eliminate duplicative costs |
|
Improving working capital efficiency |
|
Deploying capital effectively to create value for our shareholders |
By executing this strategy, we aim to deliver the following long-term financial goals:
|
High single-digit revenue growth; |
|
Mid-teens earnings per share growth; |
21
|
Increased return on invested capital and accelerated cash flows; and |
|
Consistent results through effective management of our diversified portfolio of businesses. |
In fiscal 2008 we met or exceeded these financial goals. Our revenues grew 14% to $18.6 billion, net income grew 26% to $1.9 billion, and we delivered diluted earnings per share of $3.74, a 28% increase versus fiscal 2007. These reported results included combined gains from the sale of our Starter Brand and NIKE Bauer Hockey businesses of $35.4 million, net of tax, in fiscal 2008 and the gain recognized on the sale-leaseback of the Oregon Footwear Distribution Center of $10.0 million, net of tax, in fiscal 2007, one-time tax benefits of $105.4 million and $25.5 million recognized in fiscal 2008 and 2007, respectively, operational losses of $13.3 million, net of tax, from Umbro, which we acquired in the fourth quarter of fiscal 2008, and a $9.6 million gain, net of tax, from the Converse arbitration ruling settlement in fiscal 2007. We estimate that the combination of favorable translation of foreign currency-denominated profits from international businesses and the foreign currency losses included in other (expense) income, net resulted in a year-over-year increase in consolidated income before income taxes of approximately 6%.
For the year, the increase in net income was higher than our rate of revenue growth due to a reduction in our effective
tax rate and improved gross margins, partially offset by higher selling and administrative expenses as a percentage of revenue. Fiscal 2008 results were positively affected by a reduction in our effective tax rate of 7.4 percentage points as
compared to fiscal 2007, primarily as a result of the $105.4 million one-time tax benefit received in the first quarter of fiscal 2008. Also reflected in the year-over-year effective tax rate improvement was a reduction in our ongoing effective tax
rate resulting from our profits earned outside of the United States; our effective tax rates for these operations are generally lower than the U.S. statutory rate. Gross margins for the year grew 110 basis points versus the prior year as inventory
management and strategic price increases were partially offset by higher product costs and increased close-out sales. The increase in selling and administrative expenses was attributable to higher investments in growth drivers such as athlete and
sport team endorsers of our products, spending around major sporting events, key product initiatives, investments in company owned retail and non-NIKE brand businesses as well as normal wage increases. Our earnings per share for the year grew at a
higher rate than net income given lower outstanding shares due to repurchases made under our share repurchase program. In addition, we increased cash flow from operations and continued to return larger amounts of cash to shareholders through higher
dividends and increased cash paid for share repurchases. Our return on invested capital increased as compared to fiscal 2007. Although we may not meet all of the financial goals outlined above in any particular fiscal quarter or fiscal year, we
Results of Operations
Fiscal 2008 | Fiscal 2007 |
FY08 vs.
FY07 % Change |
Fiscal 2006 |
FY07 vs.
FY06 % Change |
||||||||||||||
(In millions, except per share data) (1) | ||||||||||||||||||
Revenues |
$ | 18,627.0 | $ | 16,325.9 | 14 | % | $ | 14,954.9 | 9 | % | ||||||||
Cost of sales |
10,239.6 | 9,165.4 | 12 | % | 8,367.9 | 10 | % | |||||||||||
Gross margin |
8,387.4 | 7,160.5 | 17 | % | 6,587.0 | 9 | % | |||||||||||
Gross margin % |
45.0 | % | 43.9 | % | 44.0 | % | ||||||||||||
Selling and administrative expense |
5,953.7 | 5,028.7 | 18 | % | 4,477.8 | 12 | % | |||||||||||
% of Revenues |
32.0 | % | 30.8 | % | 29.9 | % | ||||||||||||
Income before income taxes |
2,502.9 | 2,199.9 | 14 | % | 2,141.6 | 3 | % | |||||||||||
Net income |
1,883.4 | 1,491.5 | 26 | % | 1,392.0 | 7 | % | |||||||||||
Diluted earnings per share |
3.74 | 2.93 | 28 | % | 2.64 | 11 | % |
(1) |
All per share information has been restated to reflect the two-for-one stock split affected in the form of a 100% common stock dividend distributed on April 2, 2007. |
22
Consolidated Operating Results
Revenues
Fiscal 2008 | Fiscal 2007 |
FY08 vs.
FY07 % Change |
Fiscal 2006 |
FY07 vs.
FY06 % Change |
|||||||||||
(In millions) | |||||||||||||||
Revenues |
$ | 18,627.0 | $ | 16,325.9 | 14 | % | $ | 14,954.9 | 9 | % |
Fiscal 2008 Compared to Fiscal 2007
During fiscal 2008, changes in foreign currency exchange rates contributed 5 percentage points of consolidated revenue growth. Strong demand for NIKE brand products continued to drive revenue growth, as all four of our geographic regions and, on a consolidated basis, all three of our product business units delivered revenue growth. The U.S. Region contributed nearly 2 percentage points of the consolidated revenue growth for fiscal 2008. Excluding the effects of changes in currency exchange rates, our international regions contributed nearly 7 percentage points of the consolidated revenue growth for fiscal 2008, as all of our international regions posted higher revenues. Our Other businesses, comprised of results from Cole Haan, Converse, Exeter Brands Group (whose primary business was the Starter brand business which was sold on December 17, 2007), Hurley International, NIKE Bauer Hockey (which was sold on April 17, 2008), NIKE Golf, and Umbro (which was acquired on March 3, 2008) contributed the remaining consolidated constant-currency revenue growth, as Cole Haan, Converse, Hurley and NIKE Golf posted higher year-over-year revenues.
By product group, our worldwide NIKE brand footwear revenue grew 14% and contributed more than $1.2 billion of incremental revenue for fiscal 2008. Our worldwide NIKE branded apparel and equipment businesses reported revenue growth of 14% and 10% for the year, respectively, and combined added approximately $750 million of incremental revenue. Our Other Businesses reported revenue growth of 15% and combined added more than $330 million of incremental revenue.
Fiscal 2007 Compared to Fiscal 2006
During fiscal 2007, changes in foreign currency exchange rates contributed 2 percentage points of consolidated revenue growth. All four of our geographic regions and, on a consolidated basis, all three of our product business units delivered revenue growth. Excluding the effects of changes in currency exchange rates, both the U.S. Region and our international regions each contributed more than 2.5 percentage points to the consolidated revenue growth for fiscal 2007. Sales in our Other businesses contributed the remaining 2 percentage points of the consolidated constant-currency revenue growth, as each business within the group posted higher revenues.
By product group, our worldwide NIKE brand footwear revenue grew 7% and
contributed nearly $550 million of incremental revenue for fiscal 2007. Our worldwide NIKE branded apparel and equipment businesses reported revenue growth of 10% and 12% for the year, respectively, and combined added more than $500 million of
Gross Margin
Fiscal 2008 | Fiscal 2007 |
FY08 vs.
FY07 Change |
Fiscal 2006 |
FY07 vs.
FY06 Change |
||||||||||||
(In millions) | ||||||||||||||||
Gross Margin |
$ | 8,387.4 | $ | 7,160.5 | 17% | $ | 6,587.0 | 9% | ||||||||
Gross Margin % |
45.0 | % | 43.9 | % | 110 bps | 44.0 | % | (10)bps |
23
Fiscal 2008 Compared to Fiscal 2007
During fiscal 2008, the primary factors contributing to the 110 basis point increase in the consolidated gross margin percentage versus the prior year were as follows:
(1) | Higher footwear in-line gross pricing margins, most notably in the U.S. Region, primarily due to strategic price increases; |
(2) | Improved hedge rates relative to the prior year, primarily in the Europe, Middle East and Africa (EMEA) Region; |
(3) | Higher footwear close-out net pricing margins, most notably in the EMEA Region, primarily due to better inventory management. |
The factors driving an increased gross margin percentage were partially offset by lower apparel in-line gross pricing margins primarily driven by higher product costs, most notably in the U.S. and EMEA Regions, and increased apparel close-out sales, primarily in the U.S. Region.
Fiscal 2007 Compared to Fiscal 2006
During fiscal 2007, the primary factors contributing to the 10 basis point decrease in the consolidated gross margin percentage versus the prior year were as follows:
(1) | Lower footwear close-out net pricing margins in the U.S. and EMEA Regions, primarily due to sales discounts, combined with a higher close-out mix; partially offset by |
(2) | Improved hedge rates relative to the prior year, primarily in the EMEA and Asia Pacific Regions; |
(3) | Better inventory management, most notably in our Asia Pacific Region; and |
Selling and Administrative Expense
Fiscal 2008 | Fiscal 2007 |
FY08 vs.
FY07 Change |
Fiscal 2006 |
FY07 vs.
FY06 Change |
|||||||||
(In millions) | |||||||||||||
Operating overhead expense (1) |
3,645.4 | 3,116.3 | 17% | 2,737.6 | 14% | ||||||||
Demand creation expense (2) |
2,308.3 | 1,912.4 | 21% | 1,740.2 | 10% | ||||||||
Selling and administrative expense |
5,953.7 | 5,028.7 | 18% | 4,477.8 | 12% | ||||||||
% of Revenues |
32 | % | 30.8 | % | 120 bps | 29.9 | % | 90 bps |
(1) |
Fiscal 2008 and fiscal 2007 operating overhead expense includes charges related to stock-based compensation associated with stock options and ESPP shares issued to employees and expensed in accordance with Statement of Financial Accounting Standards (SFAS) No. 123R Share Based Payment (FAS 123R). We adopted FAS 123R during the first quarter of fiscal 2007 using the modified prospective transition method. This expense was not reflected in our results of operations for fiscal 2006. (See Note 1 Summary of Significant Accounting Policies in the Notes to the Consolidated Financial Statements) |
(2) |
Demand creation consists of advertising and promotion expenses, including costs of endorsement contracts. |
24
Fiscal 2008 Compared to Fiscal 2007
In fiscal 2008, selling and administrative expenses increased as a percentage of revenues by 120 basis points, driven primarily by strategic investments in both demand creation and operating overhead. Changes in currency exchange rates increased selling and administrative expense growth by four percentage points.
On a constant-currency basis, demand creation expense increased 15% versus the prior year. The year-over-year increase was primarily attributable to investments in athlete and sport team endorsers of our products, spending around major sporting events including the 2008 Olympics in Beijing and the European Football Championships, key product initiatives such as Mens Training in the U.S. and retail presentation.
Excluding the effects of changes in exchange rates, operating overhead increased 14% versus the prior year. The increase in operating overhead was attributable to investments in growth drivers such as NIKE-owned retail, non-NIKE brand businesses, emerging markets and normal wage inflation and performance compensation.
We believe total selling and administrative expenses will grow faster than our rate of revenue growth in fiscal 2009 driven primarily by strategic investments in demand creation, including spending around the 2008 Olympics in Beijing and the European Football Championships and increased investments in athlete and team endorsers of our products.
Fiscal 2007 Compared to Fiscal 2006
In fiscal 2007, selling and administrative expenses increased as a percentage of revenues by 90 basis points; however, excluding the $141.9 million pre-tax charge relating to the change in accounting for stock-based compensation, selling and administrative expense as a percentage of revenues was consistent with the prior year.
On a constant-currency basis, demand creation expense increased 7% versus the prior year. The year-over-year increase was primarily attributable to investments in the NIKE Air ® , NIKE+, NIKE Pro, and Force Basketball campaigns. For fiscal year 2007, constant-currency growth in demand creation expense was consistent with our constant-currency revenue growth.
Excluding stock-based compensation expense and the effects of changes in exchange rates, operating overhead increased 7%, which was in line with our constant-currency revenue growth. The increase in operating overhead was attributable to investments in growth drivers such as NIKE-owned retail and non-NIKE brands, as well as normal wage inflation and performance based compensation.
Other (Expense) Income, net
Fiscal 2008 | Fiscal 2007 |
FY08 vs.
FY07 % Change |
Fiscal 2006 |
FY07 vs.
FY06 % Change |
|||||||||||||
(In millions) | |||||||||||||||||
Other (expense) income, net |
$ | (7.9 | ) | $ | 0.9 | 978 | % | $ | (4.4 | ) | 120 | % |
Fiscal 2008 Compared to Fiscal 2007
Other (expense) income, net is comprised substantially of gains and losses from hedging and re-measurement of non-functional currency balances, disposals of fixed assets, as well as other unusual or non-recurring transactions that are outside the normal course of business. Foreign currency hedge gains and losses reported in other (expense) income, net are reflected in the Corporate line in our segment presentation of pre-tax income in the Notes to Consolidated Financial Statements (Note 17 Operating Segments and Related Information) .
In fiscal 2008, other (expense) income, net included foreign currency hedge losses that were partially offset by the $32.0 million gain on the sale of NIKE Bauer Hockey and the $28.6 million gain on the sale of the Starter
25
brand business. Other (expense) income, net in fiscal 2007 is primarily comprised of the $14.7 million gain on the sale-leaseback of our Oregon footwear distribution center and the $14.2 million benefit from the settlement of the Converse arbitration, partially offset by foreign currency hedge losses.
In fiscal 2008, we estimate that the combination of favorable translation of foreign currency-denominated profits from international businesses and the foreign currency losses included in other (expense) income, net resulted in a year-over-year increase in consolidated income before income taxes of approximately $122 million.
Fiscal 2007 Compared to Fiscal 2006
For fiscal 2007, other (expense) income, net was primarily comprised of the $14.7 million gain on the sale-leaseback of our Oregon footwear distribution center and the $14.2 million benefit from the settlement of the Converse arbitration, offset by foreign currency hedge losses. The foreign currency hedge losses recognized in fiscal 2007 primarily reflect the strengthening of the Euro since we entered into these hedge contracts.
The change in other (expense) income, net versus the prior year period was primarily the result of foreign currency hedge losses in fiscal 2007, which were more than offset by the Converse arbitration settlement and gain on the sale of our Oregon footwear distribution center discussed above, compared to foreign currency hedge gains in fiscal 2006, which were more than offset by the $51.9 million charge taken during the fourth quarter as a result of the Converse arbitration. The gain on the sale of the Oregon footwear distribution center is reflected in the U.S. Region line and the Converse arbitration settlement is reflected in the Other line in our segment presentation of pre-tax income in the Notes to Consolidated Financial Statements (Note 17 Operating Segments and Related Information) .
In fiscal 2007, the net foreign currency hedge losses discussed above were partially offset by favorable U.S. dollar translation of foreign currency denominated profits, most notably in the EMEA Region. We estimate that the combination of net foreign currency hedge losses in other (expense) income, net, and the favorable U.S. dollar translation of foreign currency denominated profits did not have a significant impact on consolidated income before income taxes for fiscal 2007 compared to the prior year.
Income Taxes
Fiscal 2008 | Fiscal 2007 |
FY08 vs.
FY07 Change |
Fiscal 2006 |
FY07 vs.
FY06 Change |
|||||||||
Effective tax rate |
24.8 | % | 32.2 | % | (740) bps | 35.0 | % | (280) bps |
Fiscal 2008 Compared to Fiscal 2007
Our effective tax rate for fiscal 2008 was 24.8%, 7.4 percentage points lower than the prior year. Over the last few years, several of our international entities generated losses for which we did not recognize the corresponding tax benefits, as the realization of those benefits was uncertain. In the first quarter of fiscal 2008, we took steps necessary to realize these benefits, resulting in a one-time tax benefit of $105.4 million. Also reflected in the year-over-year effective tax rate improvement was a reduction in our on-going effective tax rate resulting from our profits earned outside the United States; our effective tax rates for these operations are generally lower than the U.S. statutory rate.
Fiscal 2007 Compared to Fiscal 2006
In fiscal 2007, our effective tax rate reflects tax benefits from our operations outside the United States; our tax rate on these operations is generally lower than the U.S. statutory rate. These benefits included the 10-year European tax agreement finalized in the second quarter of fiscal 2007, which is effective for fiscal years 2006 through 2015. This agreement, which provided a retroactive tax benefit for fiscal 2006 and the first quarter of fiscal 2007, favorably impacted our effective tax rate for fiscal 2007.
26
Futures Orders
Worldwide futures and advance orders for footwear and apparel scheduled for delivery from June through November 2008 were more than 11% higher than such
orders reported for the comparable period of fiscal 2007. This futures growth rate is calculated based upon our forecasts of the actual exchange rates under which our revenues will be translated during this period, which approximate current spot
rates. The net effect from changes in currency exchange rates contributed approximately 3 percentage points to this reported futures growth versus the same period in the prior year. Excluding this currency impact, unit sales volume increases for
both footwear and apparel drove the growth in overall futures and advance orders. The reported futures and advance orders growth is not necessarily indicative of our expectation of revenue growth during this period. This is because the mix of orders
can shift between advance/futures and at-once orders. In addition, exchange rate fluctuations as well as differing levels of order cancellations and discounts can cause differences in the comparisons between futures and advance orders, and actual
revenues. Moreover, a significant portion of our revenue is not derived from futures and advance orders, including at-once and close-out sales of NIKE footwear and apparel, wholesale sales of equipment, Cole Haan, Converse, Hurley, Umbro, NIKE Golf
Operating Segments
The breakdown of revenues follows:
Fiscal 2008 | Fiscal 2007 |
FY08 vs.
FY07 % Change |
Fiscal 2006 |
FY07 vs.
FY06 % Change |
|||||||||||
(In millions) | |||||||||||||||
U.S. Region |
|||||||||||||||
Footwear |
$ | 4,326.8 | $ | 4,067.2 | 6 | % | $ | 3,832.2 | 6 | % | |||||
Apparel |
1,745.1 | 1,716.1 | 2 | % | 1,591.6 | 8 | % | ||||||||
Equipment |
306.1 | 323.8 | (5 | )% | 298.7 | 8 | % | ||||||||
Total U.S |
6,378.0 | 6,107.1 | 4 | % | 5,722.5 | 7 | % | ||||||||
EMEA Region |
|||||||||||||||
Footwear |
3,112.6 | 2,608.0 | 19 | % | 2,454.3 | 6 | % | ||||||||
Apparel |
2,083.5 | 1,757.2 | 19 | % | 1,559.0 | 13 | % | ||||||||
Equipment |
424.3 | 358.1 | 18 | % | 313.3 | 14 | % | ||||||||
Total EMEA |
5,620.4 | 4,723.3 | 19 | % | 4,326.6 | 9 | % | ||||||||
Asia Pacific Region |
|||||||||||||||
Footwear |
1,499.5 | 1,159.2 | 29 | % | 1,044.1 | 11 | % | ||||||||
Apparel |
1,140.0 | 909.3 | 25 | % | 815.6 | 11 | % | ||||||||
Equipment |
242.2 | 214.9 | 13 | % | 194.1 | 11 | % | ||||||||
Total Asia Pacific |
2,881.7 | 2,283.4 | 26 | % | 2,053.8 | 11 | % | ||||||||
Americas Region |
|||||||||||||||
Footwear |
792.7 | 679.6 | 17 | % | 635.3 | 7 | % | ||||||||
Apparel |
265.4 | 193.9 | 37 | % | 201.8 | (4 | )% | ||||||||
Equipment |
96.0 | 79.0 | 22 | % | 67.8 | 17 | % | ||||||||
Total Americas |
1,154.1 | 952.5 | 21 | % | 904.9 | 5 | % | ||||||||
16,034.2 | 14,066.3 | 14 | % | 13,007.8 | 8 | % | |||||||||
Other |
2,592.8 | 2,259.6 | 15 | % | 1,947.1 | 16 | % | ||||||||
Total Revenues |
$ | 18,627.0 | $ | 16,325.9 | 14 | % | $ | 14,954.9 | 9 | % | |||||
27
The breakdown of income before income taxes (pre-tax income) follows:
Fiscal 2008 | Fiscal 2007 (1) |
FY08 vs.
FY07 % Change |
Fiscal 2006 (1) |
FY07 vs.
FY06 % Change |
||||||||||||||
(In millions) | ||||||||||||||||||
U.S. Region |
$ | 1,391.9 | $ | 1,367.3 | 2 | % | $ | 1,315.2 | 4 | % | ||||||||
EMEA Region |
1,266.2 | 1,036.2 | 22 | % | 992.6 | 4 | % | |||||||||||
Asia Pacific Region |
692.6 | 508.3 | 36 | % | 436.4 | 16 | % | |||||||||||
Americas Region |
239.3 | 192.7 | 24 | % | 177.6 | 9 | % | |||||||||||
Other |
336.4 | 299.7 | 12 | % | 153.6 | 95 | % | |||||||||||
Corporate |
(1,423.5 | ) | (1,204.3 | ) | (18 | )% | (933.8 | ) | (29 | )% | ||||||||
Total Pre-tax Income |
$ | 2,502.9 | $ | 2,199.9 | 14 | % | $ | 2,141.6 | 3 | % | ||||||||
(1) |
Certain prior year amounts have been reclassified to conform to fiscal year 2008 presentation. These changes had no impact on previously reported results of operations or shareholders equity. |
The following discussion includes disclosure of pre-tax income for our operating segments. We have reported pre-tax income for each of our operating segments in accordance with SFAS No. 131, Disclosures about Segments of an Enterprise and Related Information. As discussed in Note 17 Operating Segments and Related Information in the accompanying Notes to Consolidated Financial Statements, certain corporate costs are not included in pre-tax income of our operating segments.
U.S. Region
Fiscal 2008 | Fiscal 2007 |
FY08 vs.
FY07 % Change |
Fiscal 2006 |
FY07 vs.
FY06 % Change |
|||||||||||
(In millions) | |||||||||||||||
Revenues |
|||||||||||||||
Footwear |
$ | 4,326.8 | $ | 4,067.2 | 6 | % | $ | 3,832.2 | 6 | % | |||||
Apparel |
1,745.1 | 1,716.1 | 2 | % | 1,591.6 | 8 | % | ||||||||
Equipment |
306.1 | 323.8 | (5 | )% | 298.7 | 8 | % | ||||||||
Total Revenues |
$ | 6,378.0 | $ | 6,107.1 | 4 | % | $ | 5,722.5 | 7 | % | |||||
Pre-tax Income |
$ | 1,391.9 | $ | 1,367.3 | 2 | % | $ | 1,315.2 | 4 | % |
Fiscal 2008 Compared to Fiscal 2007
During fiscal 2008, the increase in U.S. footwear revenue was the result of low-single digit growth in unit sales and a slight increase in the average selling price per pair. The growth in unit sales and average selling price per pair was driven by higher demand for our NIKE brand sportswear products and Brand Jordan products, partially offset by a decrease in demand for our NIKE brand basketball products. The increase in average selling price per pair was also attributable to strategic price increases and an increased sales mix of higher priced NIKE brand sportswear and Brand Jordan products.
The year-over-year increase in U.S. apparel revenues during fiscal 2008 reflected an increase in unit sales, mostly offset by lower average selling prices. The increase in unit sales was primarily driven by higher close-out sales and increased demand for NIKE brand sports performance products, partially offset by lower unit sales of sportswear and Brand Jordan products. Average selling prices decreased primarily as a result of a higher mix of close-out sales.
The year-over-year decrease in U.S. equipment revenues during fiscal 2008 was primarily the result of lower unit sales of accessory products and fewer close-out sales.
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Pre-tax income for the U.S. Region grew at a slower rate than revenue in fiscal 2008 as a result of higher demand creation and operating overhead expenses, partially offset by higher gross margins, driven by footwear. The increase in demand creation was driven by higher sports marketing expenses and investments in the retail presentation of our key wholesale customers. The increase in operating overhead was attributable to investments in NIKE-owned retail and normal wage inflation.
Fiscal 2007 Compared to Fiscal 2006
During fiscal 2007, the increase in U.S. footwear revenue was attributable to high single-digit growth in unit sales, partially offset by a slight decrease in the average selling price per pair. The growth in unit sales was driven by higher demand for our NIKE brand sportswear products; kids product, including boys and girls sportswear; Brand Jordan products; and mens running products, due to the growth of our Nike+ performance models. The decrease in average selling price per pair compared to the prior year was the result of a higher mix of off-price products, combined with growth in lower priced kids product.
The year-over-year increase in U.S. apparel revenues during fiscal 2007 reflected mid single-digit growth in unit sales combined with a low single-digit increase in average price per unit. The increase in unit sales versus the prior year was driven by double-digit growth in NIKE brand sport performance apparel, while the improvement in average selling prices was driven by team and licensed apparel and Brand Jordan products.
Pre-tax income for the U.S. Region grew at a slower rate than revenue in fiscal 2007 as a result of lower gross margins. The gross margin decline was primarily attributable to a higher level of close-out sales and sales discounts compared to the prior year, most notably in our footwear business. Selling and administrative expenses were higher than fiscal 2006, but represented a lower percentage of revenue due to operating overhead leverage.
EMEA Region
Fiscal 2008 | Fiscal 2007 |
FY08 vs.
FY07 % Change |
Fiscal 2006 |
FY07 vs.
FY06 % Change |
|||||||||||
(In millions) | |||||||||||||||
Revenues |
|||||||||||||||
Footwear |
$ | 3,112.6 | $ | 2,608.0 | 19 | % | $ | 2,454.3 | 6 | % | |||||
Apparel |
2,083.5 | 1,757.2 | 19 | % | 1,559.0 | 13 | % | ||||||||
Equipment |
424.3 | 358.1 | 18 | % | 313.3 | 14 | % | ||||||||
Total Revenues |
$ | 5,620.4 | $ | 4,723.3 | 19 | % | $ | 4,326.6 | 9 | % | |||||
Pre-tax Income |
$ | 1,266.2 | $ | 1,036.2 | 22 | % | $ | 992.6 | 4 | % |
Fiscal 2008 Compared to Fiscal 2007
For the EMEA Region, changes in currency exchange rates contributed 11 percentage points of the revenue growth during fiscal 2008. Nearly all markets within the region increased revenues during the year. The emerging markets in the region grew nearly 25%, driven by strong results in Russia, Turkey and South Africa. Increases in Northern Europe and the U.K. also contributed significantly to the revenue growth.
Excluding changes in exchange rates, footwear revenues increased 8 percentage points during fiscal 2008 compared to the prior year. The increase in footwear revenue was attributable to double-digit growth in unit sales, partially offset by a low single-digit decrease in the average selling price per pair. The growth in unit sales was driven primarily by higher demand for our NIKE brand soccer and sportswear products. The decrease in average selling price per pair resulted from a shift in product mix from higher priced to lower priced product models, most notably within our NIKE brand sportswear product lines.
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On a currency neutral basis, EMEA apparel revenue increased 8 percentage points during fiscal 2008 compared to the prior year, primarily as a result of increased unit sales and a slight increase in average selling prices. The increase in unit sales was driven primarily by increased demand for sports performance products, most notably soccer.
The increase in pre-tax income for the EMEA Region during fiscal 2008 compared to the prior year was primarily driven by the increase in revenues, favorable foreign currency translation and a higher gross margin percentage, partially offset by higher selling and administrative expenses as a percentage of revenues. The gross margin improvement in fiscal 2008 was primarily attributable to improved year-over-year hedge rates and improved margins on close-out product. The increase in selling and administrative expenses was driven by an increase in demand creation spending, primarily attributable to spending around the European Football Championships. As a result of retail expansion and overall business growth across the region, operating overhead expenses increased for the year, but at a slower rate than revenue growth.
Fiscal 2007 Compared to Fiscal 2006
For the EMEA Region, changes in currency exchange rates contributed 6 percentage points of the revenue growth during fiscal 2007. Excluding changes in currency exchange rates, all markets within the region except the U.K. and France increased revenues during the year. The emerging markets in the region grew over 30%, driven by strong results in Greece, Russia, Turkey and South Africa. Increases in Northern Europe, Italy and Spain also contributed significantly to the revenue growth. After experiencing challenging retail conditions in the U.K. and France during fiscal 2007, we have started to see signs of improvement in these markets, including year-over-year futures growth.
Excluding changes in exchange rates, footwear revenues increased 1 percentage point during fiscal 2007 compared to the prior year. The increase in footwear revenue was attributable to low single-digit growth in unit sales, partially offset by a slight decrease in the average selling price per pair. The growth in unit sales was driven primarily by higher demand for our NIKE brand sport culture products, most notably metro and outdoor products. The growth in unit sales more than offset a decline in the average selling price per pair, which resulted from a shift in product mix from higher priced to lower priced product styles, combined with an increase in close-out sales.
Excluding changes in exchange rates, apparel revenues increased 7 percentage points during fiscal 2007 compared to the prior year. The year-over-year increase reflected high single-digit growth in unit sales, driven by both sports culture and sports performance products, combined with a low single-digit increase in average price per unit.
The increase in pre-tax income for the EMEA Region during fiscal 2007 compared to the prior year was primarily driven by the increase in revenues and favorable foreign currency translation, partially offset by a lower gross margin percentage and higher selling and administrative expenses, which on a currency-neutral basis, increased 4 percentage points versus fiscal 2006. The lower gross margin percentage in fiscal 2007 was attributable to an increase in warehousing costs and lower in-line net pricing margins, primarily in footwear, attributable to sales discounts, higher product costs and a shift in product mix to lower priced models. The increase in selling and administrative expenses was primarily driven by an increase in operating overhead, most notably normal wage inflation and growth in the emerging markets, combined with a slight increase in demand creation.
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Asia Pacific Region
Fiscal 2008 | Fiscal 2007 |
FY08 vs.
FY07 % Change |
Fiscal 2006 |
FY07 vs.
FY06 % Change |
|||||||||||
(In millions) | |||||||||||||||
Revenues |
|||||||||||||||
Footwear |
$ | 1,499.5 | $ | 1,159.2 | 29 | % | $ | 1,044.1 | 11 | % | |||||
Apparel |
1,140.0 | 909.3 | 25 | % | 815.6 | 11 | % | ||||||||
Equipment |
242.2 | 214.9 | 13 | % | 194.1 | 11 | % | ||||||||
Total Revenues |
$ | 2,881.7 | $ | 2,283.4 | 26 | % | $ | 2,053.8 | 11 | % | |||||
Pre-tax Income |
$ | 692.6 | $ | 508.3 | 36 | % | $ | 436.4 | 16 | % |
Fiscal 2008 Compared to Fiscal 2007
In the Asia Pacific Region, changes in currency exchange rates contributed 6 percentage points of revenue growth for fiscal 2008. Nearly all countries across the region delivered revenue growth on a currency neutral basis. China continues to be the primary driver of growth within the region as fiscal 2008 revenues increased 50% on a currency-neutral basis, driven by the expansion in both the number of stores selling NIKE product and sales through existing stores. Constant-currency revenues in Japan increased at a low single digit rate during fiscal 2008.
Footwear revenue growth for fiscal 2008 reflected increased unit sales, most notably in China, partially offset by lower average selling prices driven primarily by a shift in mix from higher priced to lower priced models. The year-over-year increase in apparel revenue was driven by increased demand in China.
The increase in pre-tax income for the Asia Pacific Region for fiscal 2008 was driven by higher revenues, improved gross margins and favorable foreign currency translation, which more than offset slightly higher selling and administrative expenses as a percentage of revenue. The gross margin improvement versus the prior year was primarily driven by reduced warehousing costs, improved year-over-year currency hedge rates and improved margins on close-out product. The increase in selling and administrative expenses during fiscal 2008 was primarily attributable to spending around the 2008 Olympics in Beijing. Overall business growth across the region combined with retail expansion, primarily in China, also contributed to an increase in operating overhead expenses, which grew slightly slower than revenues.
Fiscal 2007 Compared to Fiscal 2006
In the Asia Pacific Region, changes in currency exchange rates contributed 1 percentage point of revenue growth for fiscal 2007. While the majority of countries within the region reported double-digit sales increases for the year, China continues to be the primary driver of growth within the region, as revenues increased nearly 26% on a currency-neutral basis. The revenue growth in China is primarily due to expansion in both the number of stores selling NIKE product, as well as sales through existing doors. Constant-currency revenues in Japan increased only slightly during fiscal 2007. Despite sustained softness in the Japan market, we are starting to see positive signs, including higher gross margins, improvements in sell through at retail and improving futures conversion trends.
The growth in footwear revenue for fiscal 2007 reflected increased unit sales, most notably in China and Korea, partially offset by lower average selling prices, which resulted primarily from strategies to improve consumer value in Japan and Korea, combined with a change in the mix of products sold across the region. The year-over-year increase in apparel revenue was also driven by increased demand in China and Korea.
The increase in pre-tax income for the Asia Pacific Region for fiscal 2007 was driven by higher revenues, improved gross margins and favorable foreign currency translation, which more than offset higher selling and
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administrative expenses. The gross margin improvement versus the prior year was primarily driven by better inventory management, improved year-over-year
hedge rates and reduced warehousing costs. The improvement in margins was partially offset by higher sales incentives, most notably in Japan, combined with efforts to improve consumer value in Japan and Korea. The increase in selling and
administrative expenses during fiscal 2007 was attributable to increased investments in demand creation, most notably the Just Do It and Force Basketball campaigns. Overall business growth across the region, combined with retail expansion in China
Americas Region
Fiscal 2008 | Fiscal 2007 |
FY08 vs.
FY07 % Change |
Fiscal 2006 |
FY07 vs.
FY06 % Change |
|||||||||||
(In millions) | |||||||||||||||
Revenues |
|||||||||||||||
Footwear |
$ | 792.7 | $ | 679.6 | 17 | % | $ | 635.3 | 7 | % | |||||
Apparel |
265.4 | 193.9 | 37 | % | 201.8 | (4 | )% | ||||||||
Equipment |
96.0 | 79.0 | 22 | % | 67.8 | 17 | % | ||||||||
Total Revenues |
$ | 1,154.1 | $ | 952.5 | 21 | % | $ | 904.9 | 5 | % | |||||
Pre-tax Income |
$ | 239.3 | $ | 192.7 | 24 | % | $ | 177.6 | 9 | % |
Fiscal 2008 Compared to Fiscal 2007
In the Americas Region, changes in currency exchange rates contributed 7 percentage points of revenue growth for fiscal 2008. Excluding changes in foreign currency exchange rates, the Americas Region reported growth in all markets, led by Argentina, Mexico and Brazil.
The increase in pre-tax income for fiscal 2008 versus the prior year was primarily attributable to higher revenues, improved gross margins and operating overhead leverage, combined with favorable foreign currency translation. These factors were partially offset by higher demand creation spending as a percentage of revenue. The gross margin improvement was driven primarily by higher in-line net pricing margins resulting from a better mix of products sold and fewer discounts offered in fiscal 2008 compared to fiscal 2007. The increase in demand creation spending during fiscal 2008 was primarily attributable to investments in sports marketing, most notably in soccer, brand events including spending around Run Americas III and investments in the retail presentation of NIKE + and NIKE Pro products.
Fiscal 2007 Compared to Fiscal 2006
In the Americas Region, changes in currency exchange rates contributed 1 percentage point of revenue growth for fiscal 2007. Excluding changes in foreign currency exchange rates, growth in most markets within the region, led by constant-currency revenue growth of 29% in Argentina, more than offset softer results in Brazil. While currency-neutral footwear and equipment revenues increased 6% and 15%, respectively, versus the prior year, apparel revenues decreased 4% as a result of tough World Cup comparisons. We expect to return to apparel revenue growth in fiscal 2008 as a result of moving from a licensed to a wholesale apparel distribution model in Brazil.
The increase in pre-tax income for fiscal 2007 versus the prior year was primarily attributable to higher revenues and improved gross margins, partially offset by higher selling and administrative expenses. The gross margin improvement was driven by higher in-line net pricing margins resulting from fewer discounts being offered in fiscal 2007 compared to fiscal 2006, combined with a change in product mix. The increase in selling and administrative expenses during fiscal 2007 was primarily attributable to investments in demand creation, most notably the Run Americas II and womens fitness campaigns, the World Cup and retail resources.
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Other Businesses
Fiscal 2008 | Fiscal 2007 |
FY08 vs.
FY07 % Change |
Fiscal 2006 |
FY07 vs.
FY06 % Change |
|||||||||||
(In millions) | |||||||||||||||
Revenues |
$ | 2,592.8 | $ | 2,259.6 | 15 | % | $ | 1,947.1 | 16 | % | |||||
Pre-tax Income |
$ | 336.4 | $ | 299.7 | 12 | % | $ | 153.6 | 95 | % |
Fiscal 2008 Compared to Fiscal 2007
The increase in Other business revenues was driven by higher revenues across all businesses, most notably Converse and NIKE Golf. In fiscal 2008, revenues at Converse increased more than 29% versus the prior year to approximately $729 million, driven by strong consumer demand in the United States and internationally, while NIKE Golf grew 12% to nearly $725 million. Revenues at Cole Haan increased 6% to $496 million, driven by strong results at company-owned retail stores. Revenues at Hurley increased 14% to $171 million.
During fiscal 2008, growth at Converse and NIKE Golf, combined with margin improvements across most businesses drove the year-over-year increase in pre-tax income. Fiscal 2007 pre-tax income included a $14.2 million benefit relating to the settlement of an arbitration ruling involving Converse and a former South American licensee. Fiscal 2008 pre-tax income for our Other businesses would have increased approximately 18% versus fiscal 2007 excluding this favorable settlement.
As part of our long term growth strategy, we continually evaluate our existing portfolio of businesses as well as new business opportunities to ensure the Company is investing in those businesses with the largest growth potential and highest returns. On March 3, 2008 we completed the acquisition of 100% of the outstanding shares of Umbro Plc (Umbro), a leading United Kingdom-based global soccer brand, for a purchase price of £290.5 million in cash (approximately $576.4 million), inclusive of direct transaction costs. This acquisition is intended to significantly strengthen our market position in the United Kingdom and expand NIKEs global leadership in soccer, a key area of growth for the Company. This acquisition also provides scaled positions in emerging soccer markets such as China, Russia and Brazil. The results of Umbros operations have been included in the Companys consolidated financial statements and in the Other operating segment since the date of acquisition. Umbro, which was listed on the London Stock Exchange prior to our acquisition, reported in their 2006 annual report that revenues for calendar year 2006 were approximately $276 million (£149.5 million), and estimated that the combination of Umbros calendar year 2006 wholesale revenue and estimated sales revenue earned by Umbros licensees from the sale of Umbro products totaled approximately $755 million (£409.4 million).
Following a strategic review of the Companys existing business portfolio, we concluded that the Starter and Bauer Hockey businesses did not align with our long-term growth priorities. On December 17, 2007 we completed the sale of the Starter brand business for $60 million in cash. On April 17, 2008 we completed the sale of the Bauer Hockey business for net proceeds of $189.2 million after working capital adjustments. These transactions resulted in gains of approximately $28.6 million and $32.0 million, respectively, which are reflected in the Corporate line in our segment presentation of pre-tax income in the Notes to Consolidated Financial Statements (Note 17 Operating Segments).
Fiscal 2007 Compared to Fiscal 2006
The increase in Other business revenues for fiscal 2007 compared to the same period in the prior year was driven by double-digit revenue growth across nearly all businesses, led by Converse and NIKE Golf. In fiscal 2007, revenues at Converse increased more than 20% versus the prior year to over $550 million, driven by strong consumer demand in the United States and internationally, while NIKE Golf grew 12% to nearly $650 million.
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During fiscal 2007, improved profitability at Converse, driven by increased wholesale revenues in the United States and growth in our international licensing business, combined with growth at NIKE Golf, contributed to the increase in pre-tax income versus fiscal 2006. Fiscal 2007 results also include the benefit of the $14.2 million settlement of the arbitration ruling involving Converse and a former South American licensee. This dispute was settled during the first quarter ended August 31, 2006.
Liquidity and Capital Resources
Fiscal 2008 Cash Flow Activity
Cash provided by operations was approximately $1.9 billion in both fiscal 2008 and fiscal 2007. Our primary source of operating cash flow in fiscal 2008 was net income of $1.9 billion. Adjustments for non-cash depreciation and stock-based compensation were offset by increases in deferred income taxes as well as investments in working capital and other assets and liabilities to support growth in the business. The increase in working capital during fiscal 2008 was primarily attributable to an increase in inventories and accounts receivable, partially offset by increases in accounts payable and accrued liabilities. The increase in accounts receivable is attributable to higher sales in the last quarter of 2008. The increase in inventories reflects year-over-year growth in reported futures and higher inventories to support the expansion of NIKE-owned retail stores, slightly offset by better inventory management. The increase in accounts payable and accrued liabilities was primarily due to the timing of payments and inventory receipts compared to the prior year.
Cash used by investing activities was $0.4 billion during fiscal 2008, compared to $0.1 billion provided by investing activities during fiscal 2007. The year-over-year increase in cash used by investing activities was primarily due to our acquisition of Umbro for approximately $0.6 billion offset by proceeds from the divestitures of our NIKE Bauer Hockey and Starter brand businesses of $0.2 billion.
Cash used in financing activities was $1.2 billion during fiscal 2008, compared to $1.1 billion used in fiscal 2007. The increase versus fiscal 2007 was primarily due to an increase in share repurchases and dividends paid, discussed below, partially offset by a decrease in payments of long term debt as we made a $250 million repayment of corporate bonds in fiscal 2007.
In fiscal 2008, we purchased approximately 20.6 million shares of NIKEs Class B Common Stock for $1.2 billion. As of the end of fiscal 2008, we have repurchased 38.6 million shares for $2.1 billion under the $3 billion program approved by our Board of Directors in June 2006. We expect to fund share repurchases from operating cash flow, excess cash and/or debt. The timing and the ultimate amount of shares purchased under the programs will be dictated by our capital needs and stock market conditions.
Dividends declared per share of common stock for fiscal 2008 were $0.875, compared to $0.71 in fiscal 2007. We have paid a dividend every quarter since February 1984. Our current dividend policy is to provide an annual dividend equal to 20% to 30% of the trailing twelve-months earnings per share, paid out on a quarterly basis. We review our dividend policy from time to time, and based upon current projected earnings and cash flow requirements, we anticipate continuing to pay a quarterly dividend in the foreseeable future.
Off-Balance Sheet Arrangements
In connection with various contracts and agreements, we provide routine indemnifications relating to the enforceability of intellectual property rights, coverage for legal issues that arise and other items that fall under the scope of Financial Accounting Standards Board (FASB) Interpretation No. 45, Guarantors Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others. Currently, we have several such agreements in place. However, based on our historical experience and the estimated probability of future loss, we have determined that the fair value of such indemnifications is not material to our financial position or results of operations.
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Contractual Obligations
Our significant long-term contractual obligations as of May 31, 2008, and significant endorsement contracts entered into through the date of this report are as follows:
Cash Payments Due During the Year Ending May 31, | |||||||||||||||||||||
Description of Commitment |
2009 | 2010 | 2011 | 2012 | 2013 | Thereafter | Total | ||||||||||||||
(In millions) | |||||||||||||||||||||
Operating Leases |
$ | 312.4 | $ | 264.4 | $ | 228.9 | $ | 192.1 | $ | 163.9 | $ | 692.3 | $ | 1,854.0 | |||||||
Long-term Debt |
6.3 | 31.3 | 6.3 | 153.4 | 46.3 | 197.5 | 441.1 | ||||||||||||||
Endorsement Contracts (1) |
700.4 | 599.3 | 518.3 | 480.3 | 407.2 | 1,122.0 | 3,827.5 | ||||||||||||||
Product Purchase Obligations (2) |
2,272.0 | 1.9 | | | | | 2,273.9 | ||||||||||||||
Other (3) |
250.7 | 76.4 | 62.6 | 55.1 | 50.7 | 1.2 | 496.7 | ||||||||||||||
Total |
$ | 3,541.8 | $ | 973.3 | $ | 816.1 | $ | 880.9 | $ | 668.1 | $ | 2,013.0 | $ | 8,893.2 | |||||||
(1) |
The amounts listed for endorsement contracts represent approximate amounts of base compensation and minimum guaranteed royalty fees we are obligated to pay athlete and sport team endorsers of our products. Actual payments under some contracts may be higher than the amounts listed as these contracts provide for bonuses to be paid to the endorsers based upon athletic achievements and/or royalties on product sales in future periods. Actual payments under some contracts may also be lower as these contracts include provisions for reduced payments if athletic performance declines in future periods. |
In addition to the cash payments, we are obligated to furnish our endorsers with NIKE products for their use. It is not possible to determine how much we will spend on this product on an annual basis as the contracts do not stipulate a specific amount of cash to be spent on the product. The amount of product provided to the endorsers will depend on many factors including general playing conditions, the number of sporting events in which they participate, and our own decisions regarding product and marketing initiatives. In addition, the costs to design, develop, source, and purchase the products furnished to the endorsers are incurred over a period of time and are not necessarily tracked separately from similar costs incurred for products sold to customers.
(2) |
We generally order product at least four to five months in advance of sale based primarily on advanced futures orders received from customers. The amounts listed for product purchase obligations represent agreements (including open purchase orders) to purchase products in the ordinary course of business, that are enforceable and legally binding and that specify all significant terms. In some cases, prices are subject to change throughout the production process. The reported amounts exclude product purchase liabilities included in accounts payable on the Consolidated Balance Sheet as of May 31, 2008. |
(3) |
Other amounts primarily include service and marketing commitments made in the ordinary course of business. The amounts represent the minimum payments required by legally binding contracts and agreements that specify all significant terms, including open purchase orders for non-product purchases. The reported amounts exclude those liabilities included in accounts payable or accrued liabilities on the Consolidated Balance Sheet as of May 31, 2008. |
The total long-term liability for uncertain tax positions was $251.1 million, excluding related interest and penalties, at May 31, 2008. We are not able to reasonably estimate when or if cash payments of the long-term liability for uncertain tax positions will occur.
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We also have the following outstanding short-term debt obligations as of May 31, 2008. Please refer to the accompanying Notes to Consolidated Financial Statements (Note 6 Short-Term Borrowings and Credit Lines) for further description and interest rates related to the short-term debt obligations listed below.
Outstanding as of
May 31, 2008 |
|||
(In millions) | |||
Notes payable, due at mutually agreed-upon dates within one year of issuance or on demand |
$ | 177.7 | |
Payable to Sojitz America for the purchase of inventories, generally due 60 days after shipment of goods from a foreign port |
$ | 65.9 |
As of May 31, 2008, letters of credit of $193.4 million were outstanding, generally for the purchase of inventory.
Capital Resources
In October 2001, we filed a shelf registration statement with the SEC under which $1 billion in debt securities may be issued. In May 2002, we commenced a medium-term note program under the shelf registration that allows us to issue up to $500.0 million in medium-term notes as our capital needs dictate. We entered into this program to provide additional liquidity to meet our working capital and general corporate cash requirements and since commencement of the program have issued $240.0 million in medium-term notes. As of May 31, 2008, $215.0 million in medium-term notes remained outstanding. We may issue additional notes under the shelf registration in fiscal 2009 depending on general corporate needs.
During fiscal 2008, one of our Japanese subsidiaries entered into a total of ¥5.0 billion (approximately $47.4 million as of May 31, 2008) in short-term loans to meet general operating needs. The interest rates on the loans are based on the prevailing Tokyo Interbank Offer Rate of our election plus a spread, resulting in a weighted average all-in rate of 1.06% at May 31, 2008.
During fiscal 2007, another of our Japanese subsidiaries entered into a ¥3.0 billion (approximately $28.5 million as of May 31, 2008) loan facility that replaced certain intercompany borrowings. The interest rate on the facility is based on the six-month Japanese Yen London Interbank Offer Rate (JPY LIBOR) plus a spread resulting in an all in rate of approximately 1.12% at May 31, 2008. This loan facility was renewed during fiscal 2008. Subsequent to May 31, 2008, this loan facility expired and was replaced with intercompany borrowings.
During fiscal 2007, the same Japanese subsidiary entered into a ¥5.0 billion (approximately $47.4 million as of May 31, 2008) term loan that replaced certain intercompany borrowings and matures on February 14, 2012. The interest rate on the loan is approximately 1.5% and interest is paid semi-annually.
As of May 31, 2008, we had no amounts outstanding under our multi-year, $1 billion revolving credit facility in place with a group of banks. The facility matures in December 2012 and can be extended for one additional year on its next anniversary date. Based on our current long-term senior unsecured debt ratings of A+ and A1 from Standard and Poors Corporation and Moodys Investor Services, respectively, the interest rate charged on any outstanding borrowings would be the prevailing London Interbank Offer Rate (LIBOR) plus 0.15%. The facility fee is 0.05% of the total commitment.
If our long-term debt rating were to decline, the facility fee and interest rate under our committed credit facility would increase. Conversely, if our long-term debt rating were to improve, the facility fee and interest rate would decrease. Changes in our long-term debt rating would not trigger acceleration of maturity of any then outstanding borrowings or any future borrowings under the committed credit facility. Under this committed credit facility, we have agreed to various covenants. These covenants include limits on our disposal of fixed assets and the amount of debt secured by liens we may incur as well as a minimum capitalization ratio. In the
36
event we were to have any borrowings outstanding under this facility, failed to meet any covenant, and were unable to obtain a waiver from a majority of the banks, any borrowings would become immediately due and payable. As of May 31, 2008, we were in full compliance with each of these covenants and believe it is unlikely we will fail to meet any of these covenants in the foreseeable future.
Liquidity is also provided by our commercial paper program, under which there was no amount outstanding at May 31, 2008 or May 31, 2007. We currently have short-term debt ratings of A1 and P1 from Standard and Poors Corporation and Moodys Investor Services, respectively.
We currently believe that cash generated by operations, together with access to external sources of funds as described above, will be sufficient to meet our operating and capital needs in the foreseeable future.
Recently Adopted Accounting Standards
In June 2006, the FASB issued FIN 48, which clarifies the accounting for uncertainty in income taxes recognized in our financial statements in accordance with FASB Statement No. 109, Accounting for Income Taxes. We adopted the provisions of FIN 48 on June 1, 2007. See Note 8 in the accompanying Notes to Consolidated Financial Statements for further discussion.
In June 2006, the FASB ratified the consensus reached in Emerging Issues Task Force (EITF) Issue No. 06-2, Accounting for Sabbatical Leave and Other Similar Benefits Pursuant to FASB Statement No. 43 (EITF 06-2). EITF 06-2 clarifies recognition guidance on the accrual of employees rights to compensated absences under a sabbatical or other similar benefit arrangement. The adoption of EITF 06-2 on June 1, 2007 did not have a material impact on our consolidated financial position, results of operations or cash flows.
Recently Issued Accounting Standards
In September 2006, the FASB issued SFAS No. 157, Fair Value Measurements (FAS 157). FAS 157 defines fair value, establishes a framework for measuring fair value in accordance with generally accepted accounting principles, and expands disclosures about fair value measurements. The provisions of FAS 157 for financial assets and liabilities are effective for our fiscal year beginning June 1, 2008 and the provisions of FAS 157 for non-financial assets and liabilities except for items recognized at fair value on a recurring basis are effective for the fiscal year beginning June 1, 2009. We are currently evaluating the impact of the provisions for non-financial assets and liabilities. We have evaluated the provisions of FAS 157 for financial assets and liabilities and do not expect that the adoption will have a material impact on our consolidated financial position or results of operations.
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and Financial Liabilities including an Amendment of FASB Statement No. 115 (FAS 159). FAS 159 permits entities to choose to measure many financial instruments and certain other items at fair value. The provisions of FAS 159 are effective for the fiscal year beginning June 1, 2008. We have evaluated the provisions of FAS 159 and do not expect that the adoption will have a material impact on our consolidated financial position or results of operations.
In December 2007, the FASB issued SFAS No. 141 (revised 2007), Business Combinations (FAS 141(R)) and SFAS No. 160, Noncontrolling Interests in Consolidated Financial Statements (FAS 160). These standards aim to improve, simplify, and converge internationally the accounting for business combinations and the reporting of noncontrolling interests in consolidated financial statements. The provisions of FAS 141(R) and FAS 160 are effective for the fiscal year beginning June 1, 2009. We are currently evaluating the impact of the provisions of FAS 141(R) and FAS 160.
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In March 2008, the FASB issued SFAS No. 161, Disclosures about Derivative Instruments and Hedging Activities (FAS 161). FAS 161 is intended to improve financial reporting about derivative instruments and hedging activities by requiring enhanced disclosures to enable investors to better understand their effects on an entitys financial position, financial performance, and cash flows. The provisions of FAS 161 are effective for the quarter ending February 28, 2009. We do not expect that the adoption of FAS 161 will have a material impact on our consolidated financial position or results of operations.
Critical Accounting Policies
Our previous discussion and analysis of our financial condition and results of operations are based upon our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities.
We believe that the estimates, assumptions and judgments involved in the accounting policies described below have the greatest potential impact on our financial statements, so we consider these to be our critical accounting policies. Because of the uncertainty inherent in these matters, actual results could differ from the estimates we use in applying the critical accounting policies. Certain of these critical accounting policies affect working capital account balances, including the policies for revenue recognition, the allowance for uncollectible accounts receivable, inventory reserves, and contingent payments under endorsement contracts. These policies require that we make estimates in the preparation of our financial statements as of a given date. However, since our business cycle is relatively short, actual results related to these estimates are generally known within the six-month period following the financial statement date. Thus, these policies generally affect only the timing of reported amounts across two to three fiscal quarters.
Within the context of these critical accounting policies, we are not currently aware of any reasonably likely events or circumstances that would result in materially different amounts being reported.
Revenue Recognition
We record wholesale revenues when title passes and the risks and rewards of ownership have passed to the customer, based on the terms of sale. Title passes generally upon shipment or upon receipt by the customer depending on the country of the sale and the agreement with the customer. Retail store revenues are recorded at the time of sale.
In some instances, we ship product directly from our supplier to the customer and recognize revenue when the product is delivered to and accepted by the customer. Our revenues may fluctuate in cases when our customers delay accepting shipment of product for periods up to several weeks.
In certain countries outside of the U.S., precise information regarding the date of receipt by the customer is not readily available. In these cases, we estimate the date of receipt by the customer based upon historical delivery times by geographic location. On the basis of our tests of actual transactions, we have no indication that these estimates have been materially inaccurate historically.
As part of our revenue recognition policy, we record estimated sales returns and miscellaneous claims from customers as reductions to revenues at the time revenues are recorded. We base our estimates on historical rates of product returns and claims, and specific identification of outstanding claims and outstanding returns not yet received from customers. Actual returns and claims in any future period are inherently uncertain and thus may differ from our estimates. If actual or expected future returns and claims were significantly greater or lower than the reserves we had established, we would record a reduction or increase to net revenues in the period in which we made such determination.
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Allowance for Uncollectible Accounts Receivable
We make ongoing estimates relating to the ability to collect our accounts receivable and maintain an allowance for estimated losses resulting from the inability of our customers to make required payments. In determining the amount of the allowance, we consider our historical level of credit losses and make judgments about the creditworthiness of significant customers based on ongoing credit evaluations. Since we cannot predict future changes in the financial stability of our customers, actual future losses from uncollectible accounts may differ from our estimates. If the financial condition of our customers were to deteriorate, resulting in their inability to make payments, a larger allowance might be required. In the event we determine that a smaller or larger allowance is appropriate, we would record a credit or a charge to selling and administrative expense in the period in which such a determination is made.
Inventory Reserves
We also make ongoing estimates relating to the net realizable value of inventories, based upon our assumptions about future demand and market conditions. If we estimate that the net realizable value of our inventory is less than the cost of the inventory recorded on our books, we record a reserve equal to the difference between the cost of the inventory and the estimated net realizable value. This reserve is recorded as a charge to cost of sales. If changes in market conditions result in reductions in the estimated net realizable value of our inventory below our previous estimate, we would increase our reserve in the period in which we made such a determination and record a charge to cost of sales.
Contingent Payments under Endorsement Contracts
A significant portion of our demand creation expense relates to payments under endorsement contracts. In general, endorsement payments are expensed uniformly over the term of the contract. However, certain contract elements may be accounted for differently, based upon the facts and circumstances of each individual contract.
Some of the contracts provide for contingent payments to endorsers based upon specific achievements in their sports (e.g., winning a championship). We record selling and administrative expense for these amounts when the endorser achieves the specific goal.
Some of the contracts provide for payments based upon endorsers maintaining a level of performance in their sport over an extended period of time (e.g., maintaining a top ranking in a sport for a year). These amounts are reported in selling and administrative expense when we determine that it is probable that the specified level of performance will be maintained throughout the period. In these instances, to the extent that actual payments to the endorser differ from our estimate due to changes in the endorsers athletic performance, increased or decreased selling and administrative expense may be reported in a future period.
Some of the contracts provide for royalty payments to endorsers based upon a predetermined percentage of sales of particular products. We expense these payments in cost of sales as the related sales occur. In certain contracts, we offer minimum guaranteed royalty payments. For contractual obligations for which we estimate that we will not meet the minimum guaranteed amount of royalty fees through sales of product, we record the amount of the guaranteed payment in excess of that earned through sales of product in selling and administrative expense uniformly over the remaining guarantee period.
Property, Plant and Equipment
Property, plant and equipment, including buildings, equipment, and computer hardware and software is recorded at cost (including, in some cases, the cost of internal labor) and is depreciated over its estimated useful life. Changes in circumstances (such as technological advances or changes to our business operations) can result
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in differences between the actual and estimated useful lives. In those cases where we determine that the useful life of a long-lived asset should be shortened, we increase depreciation expense over the remaining useful life to depreciate the assets net book value to its salvage value.
When events or circumstances indicate that the carrying value of property, plant and equipment may be impaired, we estimate the future undiscounted cash flows to be derived from the asset to determine whether or not a potential impairment exists. If the carrying value exceeds our estimate of future undiscounted cash flows, we then calculate the impairment as the excess of the carrying value of the asset over our estimate of its fair market value. Any impairment charges are recorded within other (expense) income, net. We estimate future undiscounted cash flows using assumptions about our expected future operating performance. Our estimates of undiscounted cash flows may change in future periods due to, among other things, technological changes, economic conditions, and changes to our business operations or inability to meet business plans. Such changes may result in impairment charges in the period in which such changes in estimates are made.
Goodwill and Other Intangible Assets
In accordance with SFAS No. 142, Goodwill and Other Intangible Assets (FAS 142), goodwill and intangible assets with indefinite lives are not amortized but instead measured for impairment at least annually in the fourth fiscal quarter, or when events indicate that an impairment exists. As required by FAS 142, in our impairment tests for goodwill and other indefinite-lived intangible assets, we compare the estimated fair value of goodwill and other intangible assets to the carrying value. If the carrying value exceeds our estimate of fair value, we calculate impairment as the excess of the carrying value over our estimate of fair value. Our estimates of fair value utilized in goodwill and other indefinite-lived intangible asset tests require the use of discounted cash flow valuation models. Those models require estimates of future revenue, profits, expenditures and working capital. These estimates are determined by evaluating historical trends, current budgets, operating plans and industry data. Our estimates may change in future periods due to, among other things, technological change, economic conditions, changes to our business operations or inability to meet business plans. Such changes may result in impairment charges recorded in future periods. Any impairment charge related to goodwill would be classified as a separate line item on our consolidated statement of income as part of income before income taxes and any impairment charge related to other indefinite-lived intangible assets would be classified within other (expense) income, net.
Intangible assets that are determined to have definite lives are amortized over their useful lives and are measured for impairment only when events or circumstances indicate the carrying value may be impaired. In these cases, we estimate the future undiscounted cash flows to be derived from the asset to determine whether or not a potential impairment exists. If the carrying value exceeds our estimate of future undiscounted cash flows, we then calculate the impairment as the excess of the carrying value of the asset over our estimate of its fair value. Any significant impairment charges would be classified within other (expense) income, net.
Hedge Accounting for Derivatives
We use forward exchange contracts and option contracts to hedge certain anticipated foreign currency exchange transactions, as well as any resulting receivable or payable balance. When specific criteria required by SFAS No. 133, Accounting for Derivative and Hedging Activities, as amended and interpreted (FAS 133), have been met, changes in fair values of hedge contracts relating to anticipated transactions are recorded in other comprehensive income rather than net income until the underlying hedged transaction affects net income. In most cases, this results in gains and losses on hedge derivatives being released from other comprehensive income into net income some time after the maturity of the derivative. One of the criteria for this accounting treatment is that the forward exchange contract amount should not be in excess of specifically identified anticipated transactions. By their very nature, our estimates of anticipated transactions may fluctuate over time and may ultimately vary from actual transactions. When anticipated transaction estimates or actual transaction amounts decrease below hedged levels, or when the timing of transactions changes beyond the threshold allowed by FAS 133, we are
40
required to reclassify at least a portion of the cumulative changes in fair values of the related hedge contracts from other comprehensive income to other (expense) income, net during the quarter in which such changes occur. Once an anticipated transaction estimate or actual transaction amount decreases below hedged levels, we make adjustments to the related hedge contract in order to reduce the amount of the hedge contract to that of the revised anticipated transaction.
We use forward contracts to hedge our investment in the net assets of certain international subsidiaries to offset foreign currency translation and economic exposures related to our net investment in those subsidiaries. When appropriately designated as a hedge in accordance with FAS 133, the change in fair value of the forward contracts hedging our net investments is reported in the cumulative translation adjustment component of accumulated other comprehensive income within stockholders equity to offset the foreign currency translation adjustments on those investments.
As the value of our underlying net investments in wholly-owned international subsidiaries is known at the time a hedge is placed, the designated hedge is matched to the portion of our net investment at risk. Accordingly, the variability involved in net investment hedges is substantially less than that of other types of hedge transactions and we do not expect any material ineffectiveness. In accordance with FAS 133, we consider, on a quarterly basis, the need to redesignate existing hedge relationships based on changes in the underlying net investment. Should the level of our net investment decrease below hedged levels, any resulting ineffectiveness would be reported directly to earnings in the period incurred.
Stock-based Compensation
As of the first quarter of fiscal 2007, we account for stock-based compensation in accordance with FAS 123R. Under the provisions of FAS 123R, the fair value of stock-based compensation is estimated on the date of grant using the Black-Scholes option pricing model. The Black-Scholes option pricing model requires the input of highly subjective assumptions including volatility. Expected volatility is estimated based on implied volatility in market traded options on our common stock with a term greater than one year, along with other factors. Our decision to use implied volatility was based on the availability of actively traded options on our common stock and our assessment that implied volatility is more representative of future stock price trends than historical volatility. If factors change and we use different assumptions for estimating stock-based compensation expense in future periods, stock-based compensation expense may differ materially in the future from that recorded in the current period.
Taxes
We record valuation allowances against our deferred tax assets, when necessary, in accordance with SFAS No. 109, Accounting for Income Taxes. Realization of deferred tax assets (such as net operating loss carry-forwards) is dependent on future taxable earnings and is therefore uncertain. At least quarterly, we assess the likelihood that our deferred tax asset balance will be recovered from future taxable income. To the extent we believe that recovery is not likely, we establish a valuation allowance against our deferred tax asset, increasing our income tax expense in the period such determination is made.
In addition, we have not recorded U.S. income tax expense for foreign earnings that we have determined to be indefinitely reinvested offshore, thus reducing our overall income tax expense. The amount of earnings designated as indefinitely reinvested offshore is based upon the actual deployment of such earnings in our offshore assets and our expectations of the future cash needs of our U.S. and foreign entities. Income tax considerations are also a factor in determining the amount of foreign earnings to be indefinitely reinvested offshore.
We carefully review all factors that drive the ultimate disposition of foreign earnings determined to be reinvested offshore, and apply stringent standards to overcoming the presumption of repatriation. Despite this approach, because the determination involves our future plans and expectations of future events, the possibility exists
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that amounts declared as indefinitely reinvested offshore may ultimately be repatriated. For instance, the actual cash needs of our U.S. entities may exceed our current expectations, or the actual cash needs of our foreign entities may be less than our current expectations. This would result in additional income tax expense in the year we determined that amounts were no longer indefinitely reinvested offshore. Conversely, our approach may also result in a determination that accumulated foreign earnings (for which U.S. income taxes have been provided) will be indefinitely reinvested offshore. In this case, our income tax expense would be reduced in the year of such determination.
On an interim basis, we estimate what our effective tax rate will be for the full fiscal year. The estimated annual effective tax rate is then applied to the year-to-date pre-tax income excluding infrequently occurring or unusual items, to determine the year-to-date tax expense. The income tax effects of infrequent or unusual items are recognized in the interim period in which they occur. As the fiscal year progresses, we continually refine our estimate based upon actual events and earnings by jurisdiction during the year. This continual estimation process periodically results in a change to our expected effective tax rate for the fiscal year. When this occurs, we adjust the income tax provision during the quarter in which the change in estimate occurs so that the year-to-date provision equals the expected annual rate.
We account for uncertain tax positions in accordance with FIN 48. On a quarterly basis, we reevaluate the probability that a tax position will be effectively sustained and the appropriateness of the amount recognized for uncertain tax positions based on factors including changes in facts or circumstances, changes in tax law, settled audit issues and new audit activity. Changes in our assessment may result in the recognition of a tax benefit or an additional charge to the tax provision in the period our assessment changes. We recognize interest and penalties related to income tax matters in income tax expense.
Other Contingencies
In the ordinary course of business, we are involved in legal proceedings regarding contractual and employment relationships, product liability claims, trademark rights, and a variety of other matters. We record contingent liabilities resulting from claims against us, including related legal costs, when a loss is assessed to be probable and the amount of the loss is reasonably estimable. Assessing probability of loss and estimating probable losses requires analysis of multiple factors, including in some cases judgments about the potential actions of third party claimants and courts. Recorded contingent liabilities are based on the best information available and actual losses in any future period are inherently uncertain. If future adjustments to estimated probable future losses or actual losses exceed our recorded liability for such claims, we would record additional charges as other (expense) income, net during the period in which the actual loss or change in estimate occurred. In addition to contingent liabilities recorded for probable losses, we disclose contingent liabilities when there is a reasonable possibility that the ultimate loss will materially exceed the recorded liability. Currently, we do not believe that any of our pending legal proceedings or claims will have a material impact on our financial position or results of operations.
Item 7A. Quantitative and Qualitative Disclosures about Market Risk
In the normal course of business and consistent with established policies and procedures, we employ a variety of financial instruments to manage exposure to fluctuations in the value of foreign currencies and interest rates. It is our policy to utilize these financial instruments only where necessary to finance our business and manage such exposures; we do not enter into these transactions for speculative purposes.
We are exposed to foreign currency fluctuation as a result of our international sales, product sourcing and funding activities. Our foreign currency risk management objective is to reduce the variability of local entity cash flows as a result of exchange rate movements. We use forward exchange contracts and options to hedge certain anticipated but not yet firmly committed transactions as well as certain firm commitments and the related receivables and payables, including third party and intercompany transactions. We also use forward contracts to hedge our investment in the net assets of certain international subsidiaries to offset foreign currency translation and economic exposures related to our net investment in those subsidiaries.
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When we begin hedging exposures, the type and duration of each hedge depends on the nature of the exposure and market conditions. Generally, all anticipated and firmly committed transactions that are hedged are to be recognized within twelve to eighteen months, although at May 31, 2008 we had forward contracts hedging anticipated transactions that will be recognized in as many as 34 months. The majority of the contracts expiring in more than twelve months relate to the anticipated purchase of inventory by one of our European subsidiaries. When intercompany loans are hedged, it is typically for their expected duration. Hedged transactions are principally denominated in euros, British pounds, and Japanese yen.
Our earnings are also exposed to movements in short and long-term market interest rates. Our objective in managing this interest rate exposure is to limit the impact of interest rate changes on earnings and cash flows and to reduce overall borrowing costs. To achieve these objectives, we maintain a mix of commercial paper, bank loans and fixed rate debt of varying maturities and have entered into receive-fixed, pay-variable interest rate swaps.
Market Risk Measurement
We monitor foreign exchange risk, interest rate risk and related derivatives using a variety of techniques including a review of market value, sensitivity analysis, and Value-at-Risk (VaR). Our market-sensitive derivative and other financial instruments, as defined by the SEC, are foreign currency forward contracts, foreign currency option contracts, interest rate swaps, intercompany loans denominated in non-functional currencies, fixed interest rate U.S. dollar denominated debt, and fixed interest rate Japanese yen denominated debt.
We use VaR to monitor the foreign exchange risk of our foreign currency forward and foreign currency option derivative instruments only. The VaR determines the maximum potential one-day loss in the fair value of these foreign exchange rate-sensitive financial instruments. The VaR model estimates assume normal market conditions and a 95% confidence level. There are various modeling techniques that can be used in the VaR computation. Our computations are based on interrelationships between currencies and interest rates (a variance/co-variance technique). These interrelationships are a function of foreign exchange currency market changes and interest rate changes over the preceding one year period. The value of foreign currency options does not change on a one-to-one basis with changes in the underlying currency rate. We adjusted the potential loss in option value for the estimated sensitivity (the delta and gamma) to changes in the underlying currency rate. This calculation reflects the impact of foreign currency rate fluctuations on the derivative instruments only, and does not include the impact of such rate fluctuations on non-functional currency transactions (such as anticipated transactions, firm commitments, cash balances, and accounts and loans receivable and payable), including those which are hedged by these instruments.
The VaR model is a risk analysis tool and does not purport to represent actual losses in fair value that we will incur, nor does it consider the potential effect of favorable changes in market rates. It also does not represent the full extent of the possible loss that may occur. Actual future gains and losses will differ from those estimated because of changes or differences in market rates and interrelationships, hedging instruments and hedge percentages, timing and other factors.
The estimated maximum one-day loss in fair value on our foreign currency sensitive financial instruments, derived using the VaR model, was $34.9 million and $13.7 million at May 31, 2008 and May 31, 2007, respectively. The increase in VaR as of May 31, 2008 occurred due to a higher notional value of outstanding foreign currency derivative instruments coupled with increased foreign currency volatility as of May 31, 2008 compared to May 31, 2007. Such a hypothetical loss in fair value of our derivatives would be offset by increases in the value of the underlying transactions being hedged. The average monthly change in the fair values of foreign currency forward and foreign currency option derivative instruments was $32.3 million and $36.5 million during fiscal 2008 and fiscal 2007, respectively.
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Details of other market-sensitive financial instruments and derivative financial instruments not included in the VaR calculation above are provided in the table below. The instruments not included in the VaR are intercompany loans denominated in non-functional currencies, fixed interest rate Japanese yen denominated debt, fixed interest rate U.S. dollar denominated debt and interest rate swaps. For debt obligations, the table presents principal cash flows and related weighted average interest rates by expected maturity dates. Weighted average interest rates for the fixed rate swapped to floating rate debt reflect the effective interest rates as of May 31, 2008.
Expected Maturity Date | |||||||||||||||||||||||||||
Year Ended May 31, | |||||||||||||||||||||||||||
2009 | 2010 | 2011 | 2012 | 2013 | Thereafter | Total | Fair Value | ||||||||||||||||||||
(In millions, except interest rates) | |||||||||||||||||||||||||||
Foreign Exchange Risk |
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Euro Functional Currency |
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Intercompany loan U.S. dollar denominated Fixed rate |
|||||||||||||||||||||||||||
Principal payments |
$ | 190.0 | | | | | $ | 270.4 | $ | 460.4 | $ | 460.4 | |||||||||||||||
Average interest rate |
2.4 | % | | | | | 3.2 | % | 2.9 | % | |||||||||||||||||
Intercompany loan British pound denominated Fixed rate |
|||||||||||||||||||||||||||
Principal payments |
92.6 | | | | | 118.6 | $ | 211.2 | $ | 211.2 | |||||||||||||||||
Average interest rate |
5.3 | % | | | | | 6.4 | % | 5.9 | % | |||||||||||||||||
U.S. Dollar Functional Currency |
|||||||||||||||||||||||||||
Intercompany loan Euro denominated Fixed rate |
|||||||||||||||||||||||||||
Principal payments |
| | | | | $ | 656.8 | $ | 656.8 | $ | 656.8 | ||||||||||||||||
Average interest rate |
| | | | | 1.8 | % | 1.8 | % | ||||||||||||||||||
Intercompany loan Japanese yen denominated Fixed rate |
|||||||||||||||||||||||||||
Principal payments |
$ | 190.7 | | | | | | $ | 190.7 | $ | 190.7 | ||||||||||||||||
Average interest rate |
1.2 | % | | | | | | 1.2 | % | ||||||||||||||||||
Japanese Yen Functional Currency |
|||||||||||||||||||||||||||
Japanese yen debt Fixed rate |
|||||||||||||||||||||||||||
Principal payments |
$ | 6.3 | 6.3 | 6.3 | 153.4 | 6.3 | 47.3 | $ | 225.9 | $ | 233.6 | ||||||||||||||||
Average interest rate |
3.1 | % | 3.1 | % | 3.1 | % | 3.0 | % | 2.4 | % | 2.4 | % | 2.6 | % | |||||||||||||
Interest Rate Risk |
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Japanese Yen Functional Currency |
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Long-term Japanese yen debt Fixed rate |
|||||||||||||||||||||||||||
Principal payments |
$ | 6.3 | 6.3 | 6.3 | 153.4 | 6.3 | 47.3 | $ | 225.9 | $ | 233.6 | ||||||||||||||||
Average interest rate |
3.1 | % | 3.1 | % | 3.1 | % | 3.0 | % | 2.4 | % | 2.4 | % | 2.6 | % | |||||||||||||
U.S. Dollar Functional Currency |
|||||||||||||||||||||||||||
Long-term U.S. dollar debt Fixed rate swapped to Floating rate |
|||||||||||||||||||||||||||
Principal payments |
$ | | 25.0 | | | 40.0 | 100.0 | $ | 165.0 | $ | 167.5 | ||||||||||||||||
Average interest rate |
| 3.4 | % | | | 3.2 | % | 2.7 | % | 2.9 | % | ||||||||||||||||
Long-term U.S. dollar debt Fixed rate |
|||||||||||||||||||||||||||
Principal payments |
$ | | | | | | 50.0 | $ | 50.0 | $ | 49.7 | ||||||||||||||||
Average interest rate |
| | | | | 4.7 | % | 4.7 | % |
Intercompany loans and related interest amounts eliminate in consolidation. Intercompany loans are generally hedged against foreign exchange risk through the use of forward contracts with third parties, as discussed above.
The fixed interest rate Japanese yen denominated debts were issued by and are accounted for by one of our Japanese subsidiaries. Accordingly, the monthly re-measurement of these instruments due to changes in foreign exchange rates is recognized in accumulated other comprehensive income upon the consolidation of this subsidiary.
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In fiscal 2003 we also entered into an interest rate swap agreement related to a Japanese yen denominated intercompany loan with one of our Japanese subsidiaries. The Japanese subsidiary pays variable interest on the intercompany loan based on 3-month LIBOR plus a spread. Under the interest rate swap agreement, the subsidiary pays fixed interest payments at 0.80% and receives variable interest payments based on 3-month LIBOR plus a spread based on a notional amount of 8.0 billion Japanese yen. This interest rate swap is not accounted for as a hedge. Accordingly, changes in the fair value of the swap are recorded to net income each period. The change in fair value of the swap was not material for the years ended May 31, 2008, 2007 and 2006.
Item 8. Financial Statements and Supplemental Data
Management of NIKE, Inc. is responsible for the information and representations contained in this report. The financial statements have been prepared in conformity with the generally accepted accounting principles we considered appropriate in the circumstances and include some amounts based on our best estimates and judgments. Other financial information in this report is consistent with these financial statements.
Our accounting systems include controls designed to reasonably assure that assets are safeguarded from unauthorized use or disposition and which provide for the preparation of financial statements in conformity with generally accepted accounting principles. These systems are supplemented by the selection and training of qualified financial personnel and an organizational structure providing for appropriate segregation of duties.
An Internal Audit department reviews the results of its work with the Audit Committee of the Board of Directors, presently consisting of three outside directors. The Audit Committee is responsible for the appointment of the independent registered public accounting firm and reviews with the independent registered public accounting firm, management and the internal audit staff, the scope and the results of the annual examination, the effectiveness of the accounting control system and other matters relating to the financial affairs of NIKE as they deem appropriate. The independent registered public accounting firm and the internal auditors have full access to the Committee, with and without the presence of management, to discuss any appropriate matters.
Managements Annual Report on Internal Control Over Financial Reporting
Management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act rule 13a-15(f). Under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, our management conducted an evaluation of the effectiveness of our internal control over financial reporting based upon the framework in Internal Control Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. We have excluded from our evaluation the internal controls over financial reporting of Umbro Ltd., which we acquired on March 3, 2008. As of May 31, 2008 and for the period from March 3, 2008 through May 31, 2008, total assets and total revenues subject to Umbro Ltd.s internal control over financial reporting represented 7.3% and 0.3% of the Companys consolidated total assets and total revenues, respectively. Based on the results of our evaluation, our management concluded that our internal control over financial reporting was effective as of May 31, 2008.
Internal control over financial reporting cannot provide absolute assurance of achieving financial reporting objectives because of its inherent limitations. Internal control over financial reporting is a process that involves human diligence and compliance and is subject to lapses in judgment and breakdowns resulting from human failures. Internal control over financial reporting also can be circumvented by collusion or improper management override. Because of such limitations, there is a risk that material misstatements may not be prevented or detected on a timely basis by internal control over financial reporting. However, these inherent limitations are known features of the financial reporting process. Therefore, it is possible to design into the process safeguards to reduce, though not eliminate, this risk.
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PricewaterhouseCoopers LLP, an independent registered public accounting firm, has audited (1) the consolidated financial statements and (2) the effectiveness of our internal control over financial reporting as of May 31, 2008, as stated in their report herein.
Mark G. Parker | Donald W. Blair | |
Chief Executive Officer and President | Chief Financial Officer |
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and
Shareholders of NIKE, Inc.:
In our opinion, the consolidated financial statements listed in the index appearing under Item 15(a)(1) present fairly, in all material respects, the financial position of NIKE, Inc. and its subsidiaries at May 31, 2008 and 2007, and the results of their operations and their cash flows for each of the three years in the period ended May 31, 2008 in conformity with accounting principles generally accepted in the United States of America. In addition, in our opinion, the financial statement schedule listed in the appendix appearing under Item 15(a)(2) presents fairly in all material respects, the information set forth therein when read in conjunction with the related consolidated financial statements. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of May 31, 2008, based on criteria established in Internal Control Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Companys management is responsible for these financial statements and financial statement schedule, for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in Managements Annual Report on Internal Control Over Financial Reporting appearing under Item 8. Our responsibility is to express opinions on these financial statements, on the financial statement schedule, and on the Companys internal control over financial reporting based on our integrated audits. We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement and whether effective internal control over financial reporting was maintained in all material respects. Our audits of the financial statements included examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.
As discussed in Note 1 to the consolidated financial statements, effective June 1, 2006, the Company changed the manner in which it accounts for stock-based compensation in accordance with the Statement of Financial Accounting Standards No. 123R Share-Based Payment.
A companys internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A companys internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the companys assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
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As described in Managements Annual Report on Internal Control Over Financial Reporting, management has excluded Umbro Ltd. from its assessment of internal control over financial reporting as of May 31, 2008 because it was acquired by the Company in a purchase business combination during fiscal 2008. We have also excluded Umbro Ltd. from our audit of internal control over financial reporting. Umbro Ltd. is a wholly-owned subsidiary whose total assets and total revenues represent 7.3% and 0.3%, respectively, of the related consolidated financial statement amounts as of and for the year ended May 31, 2008.
/s/ P RICEWATERHOUSE C OOPERS LLP |
Portland, Oregon |
July 24, 2008 |
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NIKE, INC.
CONSOLIDATED STATEMENTS OF INCOME
Year Ended May 31, | |||||||||||
2008 | 2007 | 2006 | |||||||||
(In millions, except per share data) | |||||||||||
Revenues |
$ | 18,627.0 | $ | 16,325.9 | $ | 14,954.9 | |||||
Cost of sales |
10,239.6 | 9,165.4 | 8,367.9 | ||||||||
Gross margin |
8,387.4 | 7,160.5 | 6,587.0 | ||||||||
Selling and administrative expense |
5,953.7 | 5,028.7 | 4,477.8 | ||||||||
Interest income, net (Notes 1, 6 and 7) |
77.1 | 67.2 | 36.8 | ||||||||
Other (expense) income, net (Notes 15 and 16) |
(7.9 | ) | 0.9 | (4.4 | ) | ||||||
Income before income taxes |
2,502.9 | 2,199.9 | 2,141.6 | ||||||||
Income taxes (Note 8) |
619.5 | 708.4 | 749.6 | ||||||||
Net income |
$ | 1,883.4 | $ | 1,491.5 | $ | 1,392.0 | |||||
Basic earnings per common share (Notes 1 and 11) |
$ | 3.80 | $ | 2.96 | $ | 2.69 | |||||
Diluted earnings per common share (Notes 1 and 11) |
$ | 3.74 | $ | 2.93 | $ | 2.64 | |||||
Dividends declared per common share |
$ | 0.875 | $ | 0.71 | $ | 0.59 | |||||
The accompanying notes to consolidated financial statements are an integral part of this statement.
49
NIKE, INC.
CONSOLIDATED BALANCE SHEETS
The accompanying notes to consolidated financial statements are an integral part of this statement.
50
NIKE, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
Year Ended May 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(In millions) | ||||||||||||
Cash provided (used) by operations: |
||||||||||||
Net income |
$ | 1,883.4 | $ | 1,491.5 | $ | 1,392.0 | ||||||
Income charges not affecting cash: |
||||||||||||
Depreciation |
303.6 | 269.7 | 282.0 | |||||||||
Deferred income taxes |
(300.6 | ) | 34.1 | (26.0 | ) | |||||||
Stock-based compensation (Notes 1 and 10) |
141.0 | 147.7 | 11.8 | |||||||||
Gain on divestitures (Note 15) |
(60.6 | ) | | | ||||||||
Amortization and other |
17.9 | 0.5 | (2.9 | ) | ||||||||
Income tax benefit from exercise of stock options |
| | 54.2 | |||||||||
Changes in certain working capital components and other assets and liabilities excluding the impact of acquisition and divestitures: |
||||||||||||
Increase in accounts receivable |
(118.3 | ) | (39.6 | ) | (85.1 | ) | ||||||
Increase in inventories |
(249.8 | ) | (49.5 | ) | (200.3 | ) | ||||||
Increase in prepaid expenses and other current assets |
(11.2 | ) | (60.8 | ) | (37.2 | ) | ||||||
Increase in accounts payable, accrued liabilities and income taxes payable |
330.9 | 85.1 | 279.4 | |||||||||
Cash provided by operations |
1,936.3 | 1,878.7 | 1,667.9 | |||||||||
Cash provided (used) by investing activities: |
||||||||||||
Purchases of short-term investments |
(1,865.6 | ) | (2,133.8 | ) | (2,619.7 | ) | ||||||
Maturities of short-term investments |
2,246.0 | 2,516.2 | 1,709.8 | |||||||||
Additions to property, plant and equipment |
(449.2 | ) | (313.5 | ) | (333.7 | ) | ||||||
Disposals of property, plant and equipment |
1.9 | 28.3 | 1.6 | |||||||||
Increase in other assets, net of other liabilities |
(21.8 | ) | (4.3 | ) | (34.6 | ) | ||||||
Acquisition of subsidiary, net of cash acquired (Note 15) |
(571.1 | ) | | | ||||||||
Proceeds from divestitures (Note 15) |
246.0 | | | |||||||||
Cash (used) provided by investing activities |
(413.8 | ) | 92.9 | (1,276.6 | ) | |||||||
Cash provided (used) by financing activities: |
||||||||||||
Proceeds from issuance of long-term debt |
| 41.8 | | |||||||||
Reductions in long-term debt, including current portion |
(35.2 | ) | (255.7 | ) | (6.0 | ) | ||||||
Increase (decrease) in notes payable |
63.7 | 52.6 | (18.2 | ) | ||||||||
Proceeds from exercise of stock options and other stock issuances |
343.3 | 322.9 | 225.3 | |||||||||
Excess tax benefits from share-based payment arrangements |
63.0 | 55.8 | | |||||||||
Repurchase of common stock |
(1,248.0 | ) | (985.2 | ) | (761.1 | ) | ||||||
Dividends common and preferred |
(412.9 | ) | (343.7 | ) | (290.9 | ) | ||||||
Cash used by financing activities |
(1,226.1 | ) | (1,111.5 | ) | (850.9 | ) | ||||||
Effect of exchange rate changes |
(19.2 | ) | 42.4 | 25.7 | ||||||||
Net increase (decrease) in cash and equivalents |
277.2 | 902.5 | (433.9 | ) | ||||||||
Cash and equivalents, beginning of year |
1,856.7 | 954.2 | 1,388.1 | |||||||||
Cash and equivalents, end of year |
$ | 2,133.9 | $ | 1,856.7 | $ | 954.2 | ||||||
Supplemental disclosure of cash flow information: |
||||||||||||
Cash paid during the year for: |
||||||||||||
Interest, net of capitalized interest |
$ | 44.1 | $ | 60.0 | $ | 54.2 | ||||||
Income taxes |
717.5 | 601.1 | 752.6 | |||||||||
Dividends declared and not paid |
112.9 | 92.9 | 79.4 |
The accompanying notes to consolidated financial statements are an integral part of this statement.
51
NIKE, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS EQUITY
Common Stock |
Capital in
Excess of Stated Value |
Accumulated
Other Comprehensive Income (Loss) |
Retained
Earnings |
Total | ||||||||||||||||||||||||
Class A | Class B | |||||||||||||||||||||||||||
Shares | Amount | Shares | Amount | |||||||||||||||||||||||||
(In millions, except per share data) | ||||||||||||||||||||||||||||
Balance at May 31, 2005 |
143.8 | $ | 0.1 | 378.4 | $ | 2.7 | $ | 1,171.5 | $ | 73.4 | $ | 4,396.5 | $ | 5,644.2 | ||||||||||||||
Stock options exercised |
8.0 | 253.7 | 253.7 | |||||||||||||||||||||||||
Conversion to Class B Common Stock |
(16.0 | ) | 16.0 | | ||||||||||||||||||||||||
Repurchase of Class B Common Stock |
(19.0 | ) | (11.3 | ) | (769.9 | ) | (781.2 | ) | ||||||||||||||||||||
Dividends on Common stock ($0.59 per share) |
(304.9 | ) | (304.9 | ) | ||||||||||||||||||||||||
Issuance of shares to employees |
1.0 | 26.9 | 26.9 | |||||||||||||||||||||||||
Stock-based compensation (Note 10): |
11.8 | 11.8 | ||||||||||||||||||||||||||
Forfeiture of shares from employees |
(0.2 | ) | (5.3 | ) | (0.3 | ) | (5.6 | ) | ||||||||||||||||||||
Comprehensive income (Note 13): |
||||||||||||||||||||||||||||
Net income |
1,392.0 | 1,392.0 | ||||||||||||||||||||||||||
Other comprehensive income: |
||||||||||||||||||||||||||||
Foreign currency translation and other (net of tax benefit of $19.7) |
87.1 | 87.1 | ||||||||||||||||||||||||||
Net loss on cash flow hedges (net of tax benefit of $2.8) |
(5.6 | ) | (5.6 | ) | ||||||||||||||||||||||||
Reclassification to net income of previously deferred gains related to hedge derivatives (net of tax expense of $15.3) |
(33.2 | ) | (33.2 | ) | ||||||||||||||||||||||||
Comprehensive income |
48.3 | 1,392.0 | 1,440.3 | |||||||||||||||||||||||||
Balance at May 31, 2006 |
127.8 | $ | 0.1 | 384.2 | $ | 2.7 | $ | 1,447.3 | $ | 121.7 | $ | 4,713.4 | $ | 6,285.2 | ||||||||||||||
Stock options exercised |
10.7 | 349.7 | 349.7 | |||||||||||||||||||||||||
Conversion to Class B Common Stock |
(10.2 | ) | 10.2 | | ||||||||||||||||||||||||
Repurchase of Class B Common Stock |
(22.1 | ) | (13.2 | ) | (962.0 | ) | (975.2 | ) | ||||||||||||||||||||
Dividends on Common stock ($0.71 per share) |
(357.2 | ) | (357.2 | ) | ||||||||||||||||||||||||
Issuance of shares to employees |
1.2 | 30.1 | 30.1 | |||||||||||||||||||||||||
Stock-based compensation (Note 10): |
147.7 | 147.7 | ||||||||||||||||||||||||||
Forfeiture of shares from employees |
(0.1 | ) | (1.6 | ) | (0.5 | ) | (2.1 | ) | ||||||||||||||||||||
Comprehensive income (Note 13): |
||||||||||||||||||||||||||||
Net income |
1,491.5 | 1,491.5 | ||||||||||||||||||||||||||
Other comprehensive income: |
||||||||||||||||||||||||||||
Foreign currency translation and other (net of tax expense of $5.4) |
84.6 | 84.6 | ||||||||||||||||||||||||||
Net loss on cash flow hedges (net of tax benefit of $9.5) |
(38.1 | ) | (38.1 | ) | ||||||||||||||||||||||||
Reclassification to net income of previously deferred losses related to hedge derivatives (net of tax benefit of $3.6) |
21.4 | 21.4 | ||||||||||||||||||||||||||
Comprehensive income |
67.9 | 1,491.5 | 1,559.4 | |||||||||||||||||||||||||
Adoption of FAS 158 (net of tax benefit of $5.4) (Note 12): |
(12.2 | ) | (12.2 | ) | ||||||||||||||||||||||||
Balance at May 31, 2007 |
117.6 | $ | 0.1 | 384.1 | $ | 2.7 | $ | 1,960.0 | $ | 177.4 | $ | 4,885.2 | $ | 7,025.4 | ||||||||||||||
Stock options exercised |
9.1 | 372.2 | 372.2 | |||||||||||||||||||||||||
Conversion to Class B Common Stock |
(20.8 | ) | 20.8 | | ||||||||||||||||||||||||
Repurchase of Class B Common Stock |
(20.6 | ) | (12.3 | ) | (1,235.7 | ) | (1,248.0 | ) | ||||||||||||||||||||
Dividends on Common stock ($0.875 per share) |
(432.8 | ) | (432.8 | ) | ||||||||||||||||||||||||
Issuance of shares to employees |
1.0 | 39.2 | 39.2 | |||||||||||||||||||||||||
Stock-based compensation (Notes 1 and 10): |
141.0 | 141.0 | ||||||||||||||||||||||||||
Forfeiture of shares from employees |
(0.1 | ) | (2.3 | ) | (1.1 | ) | (3.4 | ) | ||||||||||||||||||||
Comprehensive income (Note 13): |
||||||||||||||||||||||||||||
Net income |
1,883.4 | 1,883.4 | ||||||||||||||||||||||||||
Other comprehensive income: |
||||||||||||||||||||||||||||
Foreign currency translation and other (net of tax expense of $101.6) |
211.9 | 211.9 | ||||||||||||||||||||||||||
Realized foreign currency translation gain due to divestiture (Note 15) |
(46.3 | ) | (46.3 | ) | ||||||||||||||||||||||||
Net loss on cash flow hedges (net of tax benefit of $67.7) |
(175.8 | ) | (175.8 | ) | ||||||||||||||||||||||||
Net loss on net investment hedges (net of tax benefit of $25.1) |
(43.5 | ) | (43.5 | ) | ||||||||||||||||||||||||
Reclassification to net income of previously deferred losses related to hedge derivatives (net of tax benefit of $49.6) |
127.7 | 127.7 | ||||||||||||||||||||||||||
Comprehensive income |
74.0 | 1,883.4 | 1,957.4 | |||||||||||||||||||||||||
Adoption of FIN 48 (Notes 1 and 8) |
(15.6 | ) | (15.6 | ) | ||||||||||||||||||||||||
Adoption of EITF 06-2 Sabbaticals (net of tax benefit of $6.2) (Note 1) |
(10.1 | ) | (10.1 | ) | ||||||||||||||||||||||||
Balance at May 31, 2008 |
96.8 | $ | 0.1 | 394.3 | $ | 2.7 | $ | 2,497.8 | $ | 251.4 | $ | 5,073.3 | $ | 7,825.3 | ||||||||||||||
The accompanying notes to consolidated financial statements are an integral part of this statement.
52
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1 Summary of Significant Accounting Policies
Basis of Consolidation
The consolidated financial statements include the accounts of NIKE, Inc. and its subsidiaries (the Company). All significant intercompany transactions and balances have been eliminated.
Stock Split
On February 15, 2007 the Board of Directors declared a two-for-one stock split of the Companys Class A and Class B common shares, which was effected in the form of a 100% common stock dividend distributed on April 2, 2007. All references to share and per share amounts in the consolidated financial statements and accompanying notes to the consolidated financial statements have been retroactively restated to reflect the two-for-one stock split.
Recognition of Revenues
Wholesale revenues are recognized when the risks and rewards of ownership have passed to the customer, based on the terms of sale. This occurs upon shipment or upon receipt by the customer depending on the country of the sale and the agreement with the customer. Retail store revenues are recorded at the time of sale. Provisions for sales discounts, returns and miscellaneous claims from customers are made at the time of sale.
Shipping and Handling Costs
Shipping and handling costs are expensed as incurred and included in cost of sales.
Advertising and Promotion
Advertising production costs are expensed the first time the advertisement is run. Media (TV and print) placement costs are expensed in the month the advertising appears.
A significant amount of the Companys promotional expenses result from payments under endorsement contracts. Accounting for endorsement payments is based upon specific contract provisions. Generally, endorsement payments are expensed on a straight-line basis over the term of the contract after giving recognition to periodic performance compliance provisions of the contracts. Prepayments made under contracts are included in prepaid expenses or other assets depending on the period to which the prepayment applies.
Through cooperative advertising programs, the Company reimburses its retail customers for certain of their costs of advertising the Companys products. The Company records these costs in selling and administrative expense at the point in time when it is obligated to its customers for the costs, which is when the related revenues are recognized. This obligation may arise prior to the related advertisement being run.
Total advertising and promotion expenses were $2,308.3 million, $1,912.4 million, and $1,740.2 million for the years ended May 31, 2008, 2007 and 2006, respectively. Prepaid advertising and promotion expenses recorded in prepaid expenses and other assets totaled $266.7 million and $253.0 million at May 31, 2008 and 2007, respectively.
53
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Cash and Equivalents
Cash and equivalents represent cash and short-term, highly liquid investments with maturities of three months or less at date of purchase. The carrying amounts reflected in the consolidated balance sheet for cash and equivalents approximate fair value.
Short-term Investments
Short-term investments consist of highly liquid investments, primarily commercial paper, U.S. Treasury, U.S. agency, and corporate debt securities, with maturities over three months from the date of purchase. Debt securities which the Company has the ability and positive intent to hold to maturity are carried at amortized cost, which approximates fair value. Short-term investments of $124.9 million and $975.4 million at May 31, 2008 and 2007, respectively, were classified as held-to-maturity and primarily comprised of U.S. Treasury and U.S. agency securities. All held-to-maturity securities at May 31, 2008 have maturity dates within one year.
Available-for-sale debt securities are recorded at fair value with net unrealized gains and losses reported, net of tax, in other comprehensive income, unless unrealized losses are determined to be other than temporary. The Company considers all available-for-sale securities, including those with maturity dates beyond 12 months, as available to support current operational liquidity needs and therefore classifies these securities as current assets within Short-term investments on the consolidated balance sheet. As of May 31, 2008, the Company held $432.3 million of available-for-sale securities with maturity dates within one year and $85.0 million with maturity dates over one year and less than five years.
Investments classified as available-for-sale consist of the following at fair value:
As of May 31, | ||||||
2008 | 2007 | |||||
(In millions) | ||||||
Available-for-sale investments: |
||||||
U.S. treasury and agencies |
$ | 194.1 | $ | 6.6 | ||
Corporate commercial paper and bonds |
323.2 | 8.3 | ||||
Total available-for-sale investments |
$ | 517.3 | $ | 14.9 | ||
Included in interest income, net for the years ended May 31, 2008, 2007, and 2006, was interest income of $115.8 million, $116.9 million and $87.3 million, respectively, related to short-term investments and cash and equivalents.
Allowance for Uncollectible Accounts Receivable
Accounts receivable consists principally of amounts receivable from customers. We make ongoing estimates relating to the collectibility of our accounts receivable and maintain an allowance for estimated losses resulting from the inability of our customers to make required payments. In determining the amount of the allowance, we consider our historical level of credit losses and make judgments about the creditworthiness of significant customers based on ongoing credit evaluations. Accounts receivable with anticipated collection dates greater than twelve months from the balance sheet date and related allowances are considered non-current and recorded in other assets. The allowance for uncollectible accounts receivable was $78.4 million and $71.5 million at May 31, 2008 and 2007, respectively, of which $36.7 million and $33.3 million was recorded in other assets.
54
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Inventory Valuation
Inventories related to our wholesale operations are stated at lower of cost or market and valued on a first-in, first-out (FIFO) or moving average cost basis. Inventories related to our retail operations are stated at the lower of average cost or market using the retail inventory method. Under the retail inventory method, the valuation of inventories at cost is calculated by applying a cost-to-retail ratio to the retail value inventories. Permanent and point of sale markdowns, when recorded, reduce both the retail and cost components of inventory on hand so as to maintain the already established cost-to-retail relationship.
Property, Plant and Equipment and Depreciation
Property, plant and equipment are recorded at cost. Depreciation for financial reporting purposes is determined on a straight-line basis for buildings and leasehold improvements over 2 to 40 years and for machinery and equipment over 2 to 15 years. Computer software (including, in some cases, the cost of internal labor) is depreciated on a straight-line basis over 3 to 10 years.
Impairment of Long-Lived Assets
The Company estimates the future undiscounted cash flows to be derived from an asset to assess whether or not a potential impairment exists when events or circumstances indicate the carrying value of a long-lived asset may be impaired. If the carrying value exceeds the Companys estimate of future undiscounted cash flows, the Company then calculates the impairment as the excess of the carrying value of the asset over the Companys estimate of its fair market value.
Identifiable Intangible Assets and Goodwill
Goodwill and intangible assets with indefinite lives are not amortized but instead are measured for impairment at least annually in the fourth quarter, or when events indicate that an impairment exists. As required by Statement of Financial Accounting Standards (SFAS) No. 142, Goodwill and other Intangible Assets (FAS 142), in the Companys impairment test of goodwill, the Company compares the fair value of the applicable reporting unit to its carrying value. The Company estimates the fair value of its reporting units by using a combination of discounted cash flow analysis and comparisons with the market values of similar publicly traded companies. If the carrying value of the reporting unit exceeds the estimate of fair value, the Company calculates the impairment as the excess of the carrying value of goodwill over its implied fair value. In the impairment tests for indefinite-lived intangible assets, the Company compares the estimated fair value of the indefinite-lived intangible assets to the carrying value. The Company estimates the fair value of indefinite-lived intangible assets and trademarks using the relief from royalty approach, which is a standard form of discounted cash flow analysis used for the valuation of trademarks. If the carrying value exceeds the estimate of fair value, the Company calculates impairment as the excess of the carrying value over the estimate of fair value.
Intangible assets that are determined to have definite lives are amortized over their useful lives and are measured for impairment only when events or circumstances indicate the carrying value may be impaired.
Foreign Currency Translation and Foreign Currency Transactions
Adjustments resulting from translating foreign functional currency financial statements into U.S. dollars are included in the foreign currency translation adjustment, a component of accumulated other comprehensive income in shareholders equity.
55
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Transaction gains and losses generated by the effect of foreign exchange rates on recorded assets and liabilities denominated in a currency different from the functional currency of the applicable Company entity are recorded in other (expense) income, net, in the period in which they occur.
Accounting for Derivatives and Hedging Activities
The Company uses derivative financial instruments to limit exposure to changes in foreign currency exchange rates and interest rates. The Company accounts for derivatives pursuant to SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities, as amended and interpreted (FAS 133). FAS 133 establishes accounting and reporting standards for derivative instruments and requires that all derivatives be recorded at fair value on the balance sheet. Changes in the fair value of derivative financial instruments are either recognized in other comprehensive income (a component of shareholders equity) or net income depending on whether the derivative is being used to hedge changes in cash flows or fair value.
See Note 16 for more information on the Companys Risk Management program and derivatives.
Stock-Based Compensation
On June 1, 2006, the Company adopted SFAS No. 123R Share-Based Payment (FAS 123R) which requires the Company to record expense for stock-based compensation to employees using a fair value method. Under FAS 123R, the Company estimates the fair value of options granted under the NIKE, Inc. 1990 Stock Incentive Plan (the 1990 Plan) (see Note 10) and employees purchase rights under the Employee Stock Purchase Plans (ESPPs) using the Black-Scholes option pricing model. The Company recognizes this fair value, net of estimated forfeitures, as selling and administrative expense in the Consolidated Statements of Income over the vesting period using the straight-line method.
The Company has adopted the modified prospective transition method prescribed by FAS 123R, which does not require the restatement of financial results for previous periods. In accordance with this transition method, the Companys Consolidated Statement of Income for the year ended May 31, 2008 and 2007 includes (1) amortization of outstanding stock-based compensation granted prior to, but not vested, as of June 1, 2006, based on the fair value estimated in accordance with the original provisions of SFAS No. 123, Accounting for Stock-Based Compensation (FAS 123) and (2) amortization of all stock-based awards granted subsequent to June 1, 2006, based on the fair value estimated in accordance with the provisions of FAS 123R.
The following table summarizes the Companys total stock-based compensation expense recognized in selling and administrative expense:
Year Ended May 31, | |||||||||
2008 | 2007 | 2006 | |||||||
(in millions) | |||||||||
Stock options (1) |
$ | 127.0 | $ | 134.9 | $ | 0.3 | |||
ESPPs |
7.2 | 7.0 | | ||||||
Restricted stock |
6.8 | 5.8 | 11.5 | ||||||
Total stock-based compensation expense |
$ | 141.0 | $ | 147.7 | $ | 11.8 | |||
(1) |
In accordance with FAS 123R, stock-based compensation expense reported during the years ended May 31, 2008 and 2007 includes $40.7 million and $36.3 million, respectively, of accelerated stock-based compensation expense recorded for employees eligible for stock option vesting upon retirement. |
56
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Prior to the adoption of FAS 123R, the Company used the intrinsic value method to account for stock options and ESPP shares in accordance with Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees as permitted by FAS 123. If the Company had instead accounted for stock options and ESPP shares issued to employees using the fair value method prescribed by FAS 123 during the year ended May 31, 2006 the Companys pro forma net income and pro forma earnings per share would have been reported as follows:
Year Ended May 31,
2006 |
||||
(In millions, except per
share data) |
||||
Net income as reported |
$ | 1,392.0 | ||
Add: Stock option expense included in reported net income, net of tax |
0.2 | |||
Deduct: Total stock option and ESPP expense under fair value based method for all awards, net of tax (1) |
(76.8 | ) | ||
Pro forma net income |
$ | 1,315.4 | ||
Earnings per share: |
||||
Basic as reported |
$ | 2.69 | ||
Basic pro forma |
2.54 | |||
Diluted as reported |
2.64 | |||
Diluted pro forma |
2.50 |
(1) |
Accelerated stock-based compensation expense for options subject to accelerated vesting due to employee retirement is not included in the pro forma figures shown above for the year ended May 31, 2006. This disclosure reflects the expense of such options ratably over the stated vesting period or upon actual employee retirement. Had the Company recognized the fair value for such stock options on an accelerated basis in this pro forma disclosure, the Company would have recognized additional stock-based compensation expense of $17.5 million, net of tax, or $0.03 per diluted share for the year ended May 31, 2006. |
To calculate the excess tax benefits available for use in offsetting future tax shortfalls as of the date of implementation, the Company is following the alternative transition method discussed in FASB Staff Position No. 123R-3, Transition Election Relating to Accounting for the Tax Effects of Share-Based Payment Awards.
See Note 10 for more information on the Companys stock programs.
Income Taxes
The Company accounts for income taxes using the asset and liability method. This approach requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of temporary differences between the carrying amounts and the tax basis of assets and liabilities. United States income taxes are provided currently on financial statement earnings of non-U.S. subsidiaries that are expected to be repatriated. The Company determines annually the amount of undistributed non-U.S. earnings to invest indefinitely in its non-U.S. operations. The Company recognizes interest and penalties related to income tax matters in income tax expense. See Note 8 for further discussion.
57
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Earnings Per Share
Basic earnings per common share is calculated by dividing net income by the weighted average number of common shares outstanding during the year. Diluted earnings per common share is calculated by adjusting weighted average outstanding shares, assuming conversion of all potentially dilutive stock options and awards. See Note 11 for further discussion.
Management Estimates
The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates, including estimates relating to assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from these estimates.
Reclassifications
Certain prior year amounts have been reclassified to conform to fiscal year 2008 presentation. These changes had no impact on previously reported results of operations or shareholders equity.
Recently Adopted Accounting Standards
In June 2006, the Financial Accounting Standards Board (FASB) issued FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes (FIN 48). FIN 48 clarifies the accounting for uncertainty in income taxes recognized in the Companys financial statements in accordance with FASB Statement No. 109, Accounting for Income Taxes. The Company adopted the provisions of FIN 48 on June 1, 2007. See Note 8 for further discussion.
In June 2006, the FASB ratified the consensus reached on Emerging Issues Task Force (EITF) Issue No. 06-2, Accounting for Sabbatical Leave and Other Similar Benefits Pursuant to FASB Statement No. 43 (EITF 06-2). EITF 06-2 clarifies recognition guidance on the accrual of employees rights to compensated absences under a sabbatical or other similar benefit arrangement. The adoption of EITF 06-2 on June 1, 2007 did not have a material impact on the Companys consolidated financial position, results of operations or cash flows.
Recently Issued Accounting Standards
In September 2006, the FASB issued SFAS No. 157, Fair Value Measurements (FAS 157). FAS 157 defines fair value, establishes a framework for measuring fair value in accordance with generally accepted accounting principles, and expands disclosures about fair value measurements. The provisions of FAS 157 for financial assets and liabilities are effective for the fiscal year beginning June 1, 2008 and the provisions of FAS 157 for non financial assets and liabilities except for items recognized at fair value on a recurring basis are effective for the fiscal year beginning June 1, 2009. The Company is currently evaluating the impact of the provisions for non financial assets and liabilities. The Company has evaluated the provisions of FAS 157 for financial assets and liabilities and does not expect that the adoption will have a material impact on the Companys consolidated financial position or results of operations.
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and Financial Liabilities including an Amendment of FASB Statement No. 115 (FAS 159). FAS 159 permits entities to choose to measure many financial instruments and certain other items at fair value. The provisions of
58
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
FAS 159 are effective for the fiscal year beginning June 1, 2008. The Company has evaluated the impact of the provisions of FAS 159 and does not expect that the adoption will have a material impact on the Companys consolidated financial position or results of operations.
In December 2007, the FASB issued SFAS No. 141 (revised 2007), Business Combinations (FAS 141(R)) and SFAS No. 160, Noncontrolling Interests in Consolidated Financial Statements (FAS 160). These standards aim to improve, simplify, and converge internationally the accounting for business combinations and the reporting of noncontrolling interests in consolidated financial statements. The provisions of FAS 141(R) and FAS 160 are effective for the fiscal year beginning June 1, 2009. The Company is currently evaluating the impact of the provisions of FAS 141(R) and FAS 160.
In March 2008, the FASB issued SFAS No. 161, Disclosures about Derivative Instruments and Hedging Activities (FAS 161). FAS 161 is intended to improve financial reporting about derivative instruments and hedging activities by requiring enhanced disclosures to enable investors to better understand their effects on an entitys financial position, financial performance, and cash flows. The provisions of FAS 161 are effective for the quarter ending February 28, 2009. The Company does not expect that the adoption will have a material impact on the Companys consolidated financial position or results of operations.
Note 2 Inventories
Inventory balances of $2,438.4 million and $2,121.9 million at
Note 3 Property, Plant and Equipment
Property, plant and equipment includes the following:
May 31, | ||||||
2008 | 2007 | |||||
(In millions) | ||||||
Land |
$ | 209.4 | $ | 193.8 | ||
Buildings |
934.6 | 840.9 | ||||
Machinery and equipment |
2,005.0 | 1,817.2 | ||||
Leasehold improvements |
757.3 | 672.8 | ||||
Construction in process |
196.7 | 94.4 | ||||
4,103.0 | 3,619.1 | |||||
Less accumulated depreciation |
2,211.9 | 1,940.8 | ||||
$ | 1,891.1 | $ | 1,678.3 | |||
Capitalized interest was not material for the years ended May 31, 2008, 2007 and 2006.
59
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 4 Identifiable Intangible Assets and Goodwill:
The following table summarizes the Companys identifiable intangible assets balances as of May 31, 2008 and May 31, 2007:
May 31, 2008 | May 31, 2007 | |||||||||||||||||||
Gross
Carrying Amount |
Accumulated
Amortization |
Net
Carrying Amount |
Gross
Carrying Amount |
Accumulated
Amortization |
Net
Carrying Amount |
|||||||||||||||
(In millions) | ||||||||||||||||||||
Amortized intangible assets: |
||||||||||||||||||||
Patents |
$ | 47.5 | $ | (14.4 | ) | $ | 33.1 | $ | 44.1 | $ | (12.3 | ) | $ | 31.8 | ||||||
Trademarks |
13.2 | (7.8 | ) | 5.4 | 49.8 | (17.5 | ) | 32.3 | ||||||||||||
Other |
65.2 | (19.7 | ) | 45.5 | 21.6 | (17.3 | ) | 4.3 | ||||||||||||
Total |
$ | 125.9 | $ | (41.9 | ) | $ | 84.0 | $ | 115.5 | $ | (47.1 | ) | $ | 68.4 | ||||||
Unamortized intangible assets Trademarks |
$ | 659.1 | $ | 341.5 | ||||||||||||||||
Total |
$ | 743.1 | $ | 409.9 | ||||||||||||||||
Amortization expense of identifiable assets with definite lives, which is included in selling and administrative expense, was $9.2 million, $9.9 million and $9.8 million for the years ended May 31, 2008, 2007, and 2006, respectively. The estimated amortization expense for intangible assets subject to amortization for each of the years ending May 31, 2009 through May 31, 2013 is as follows: 2009: $9.0 million; 2010: $8.6 million; 2011: $8.2 million; 2012: $7.5 million; 2013: $5.7 million.
During the fourth quarter ended May 31, 2008 the Company completed the acquisition of Umbro Plc (Umbro). As a result, $378.4 million was allocated to unamortized trademarks, $319.2 million was allocated to goodwill and $41.1 million was allocated to other amortized intangible assets consisting of Umbros sourcing network, established customer relationships and the United Soccer League Franchise. The gross carrying amount of unamortized and amortized trademarks were reduced by $59.6 million and $37.5 million, respectively, as a result of our divestitures of the Starter brand business and NIKE Bauer Hockey Corp. during the year ended May 31, 2008. See Note 15 for more information on the Companys acquisition and divestitures.
The following table summarizes the Companys goodwill balances as of May 31, 2008 and May 31, 2007 (in millions):
Goodwill, May 31, 2007 |
$ | 130.8 | ||
Acquisition of Umbro Plc (Note 15) |
319.2 | |||
Other (1) |
(1.2 | ) | ||
Goodwill, May 31, 2008 |
$ | 448.8 | ||
(1) |
Other consists of foreign currency translation adjustments on Umbro goodwill. |
60
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 5 Accrued Liabilities
Accrued liabilities include the following:
May 31, | ||||||
2008 | 2007 | |||||
(In millions) | ||||||
Compensation and benefits, excluding taxes |
$ | 538.0 | $ | 451.6 | ||
Endorser compensation |
203.5 | 139.9 | ||||
Fair value of derivatives |
173.3 | 90.5 | ||||
Taxes other than income taxes |
147.6 | 133.4 | ||||
Advertising and marketing |
121.4 | 70.6 | ||||
Dividends payable |
112.9 | 92.9 | ||||
Import and logistics costs |
78.8 | 81.4 | ||||
Other (1) |
386.4 | 243.1 | ||||
$ | 1,761.9 | $ | 1,303.4 | |||
(1) |
Other consists of various accrued expenses and no individual item accounted for more than $65 million of the balance at
|
Note 6 Short-Term Borrowings and Credit Lines
Notes payable to banks and interest-bearing accounts payable to Sojitz Corporation of America (Sojitz America) as of May 31, 2008 and 2007, are summarized below:
May 31, | ||||||||||||
2008 | 2007 | |||||||||||
Borrowings |
Interest
Rate |
Borrowings |
Interest
Rate |
|||||||||
(In millions) | ||||||||||||
Notes payable: |
||||||||||||
U.S. operations |
$ | 18.6 | 0.00 | % (1) | $ | 14.6 | 0.00 | % (1) | ||||
Non-U.S. operations |
159.1 | 6.80 | % | 86.2 | 9.85 | % | ||||||
$ | 177.7 | $ | 100.8 | |||||||||
Sojitz America |
$ | 65.9 | 3.51 | % | $ | 44.6 | 6.09 | % |
(1) |
Weighted average interest rate includes non-interest bearing overdrafts. |
The carrying amounts reflected in the consolidated balance sheet for notes payable approximate fair value.
The Company purchases through Sojitz America certain athletic footwear, apparel and equipment it acquires from non-U.S. suppliers. These purchases are for the Companys operations outside of the United States, the Europe, Middle East, and Africa Region and Japan. Accounts payable to Sojitz America are generally due up to 60 days after shipment of goods from the foreign port. The interest rate on such accounts payable is the 60-day London Interbank Offered Rate (LIBOR) as of the beginning of the month of the invoice date, plus 0.75%.
The Company had no borrowings outstanding under its commercial paper program at May 31, 2008 and 2007.
61
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
In December 2006, the Company entered into a $1 billion revolving credit facility with a group of banks. The facility matures in December 2012 and can be extended for one additional year on its next anniversary date. Based on the Companys current long-term senior unsecured debt ratings of A+ and A2 from Standard and Poors Corporation and Moodys Investor Services, respectively, the interest rate charged on any outstanding borrowings would be the prevailing London Interbank Offer Rate (LIBOR) plus 0.15%. The facility fee is 0.05% of the total commitment. Under this agreement, the Company must maintain, among other things, certain minimum specified financial ratios with which the Company was in compliance at May 31, 2008. No amounts were outstanding under these facilities as of May 31, 2008 or 2007.
During the year ended May 31, 2008, one of the Companys Japanese subsidiaries entered into a total of ¥5.0 billion (approximately $47.4 million as of May 31, 2008) in short-term loans to meet general operating needs. The interest rates on the loans are based on the prevailing Tokyo Interbank Offer Rate of our election plus a spread, resulting in a weighted average all-in rate of 1.06% at May 31, 2008.
In January 2007, another one of the Companys Japanese subsidiaries entered into a ¥3.0 billion (approximately $28.5 million as of May 31, 2008) loan facility that replaced certain intercompany borrowings. The interest rate on the facility is based on the six-month Japanese Yen London Interbank Offer Rate plus a spread resulting in an all-in-rate of approximately 1.12% at May 31, 2008. The loan facility was replaced with intercompany borrowings subsequent to May 31, 2008.
Note 7 Long-Term Debt
Long-term debt includes the following:
May 31, | ||||||
2008 | 2007 | |||||
(In millions) | ||||||
4.8% Corporate Bond, payable July 9, 2007 |
| $ | 25.0 | |||
5.375% Corporate Bond, payable July 8, 2009 |
25.5 | 24.8 | ||||
5.66% Corporate Bond, payable July 23, 2012 |
26.1 | 24.8 | ||||
5.4% Corporate Bond, payable August 7, 2012 |
15.4 | 14.6 | ||||
4.7% Corporate Bond, payable October 1, 2013 |
50.0 | 50.0 | ||||
5.15% Corporate Bonds, payable October 15, 2015 |
104.5 | 99.6 | ||||
4.3% Japanese yen note, payable June 26, 2011 |
99.6 | 86.4 | ||||
1.5% Japanese yen note, payable February 14, 2012 |
47.4 | 41.1 | ||||
2.6% Japanese yen note, maturing August 20, 2001 through November 20, 2020 |
54.5 | 51.2 | ||||
2.0% Japanese yen note, maturing August 20, 2001 through November 20, 2020 |
24.4 | 22.9 | ||||
Total |
447.4 | 440.4 | ||||
Less current maturities |
6.3 | 30.5 | ||||
$ | 441.1 | $ | 409.9 | |||
The fair value of long-term debt is estimated using discounted cash flow analyses, based on the Companys incremental borrowing rates for similar types of borrowing arrangements. The fair value of the Companys long-term debt, including current portion, is approximately $450.8 million at May 31, 2008 and $443.2 million at May 31, 2007.
Since 2001, the Company has had an effective shelf registration statement with the Securities and Exchange Commission for $1 billion of debt securities. The Company has a medium-term note program under the shelf
62
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
registration (medium-term note program) that allows the Company to issue up to $500 million in medium-term notes. Since commencement of this program, the Company has issued $240 million in medium-term notes of which $215 million and $240 million were outstanding as of May 31, 2008 and 2007, respectively. The issued notes have coupon rates that range from 4.70% to 5.66%. The remaining maturities range from July 8, 2009 to October 15, 2015. For each of these notes, except for the swap for the $50 million note maturing October 1, 2013, the Company has entered into interest rate swap agreements whereby the Company receives fixed interest payments at the same rate as the notes and pays variable interest payments based on the three-month or six-month LIBOR plus a spread. Each swap has the same notional amount and maturity date as the corresponding note. The swap for the $50 million note maturing October 1, 2013, expired October 2, 2006. At May 31, 2008, the interest rates payable on these swap agreements range from approximately 2.6% to 3.5%.
In June 1996, one of the Companys Japanese subsidiaries, NIKE Logistics YK, borrowed ¥10.5 billion (approximately $99.6 million as of May 31, 2008) in a private placement with a maturity of June 26, 2011. Interest is paid semi-annually. The agreement provides for early retirement after year ten.
In July 1999, NIKE Logistics YK assumed ¥13.0 billion in loans as part of its agreement to purchase a distribution center in Japan, which serves as collateral for the loans. These loans mature in equal quarterly installments during the period August 20, 2001 through November 20, 2020. Interest is also paid quarterly. As of May 31, 2008, ¥8.3 billion in loans were outstanding (approximately $78.9 million).
In February 2007, NIKE Logistics YK entered into a ¥5.0 billion (approximately $47.4 million as of May 31, 2008) term loan that replaced certain intercompany borrowings and matures on February 14, 2012. The interest rate on the loan is approximately 1.5% and interest is paid semi-annually.
Amounts of long-term debt maturities in each of the years ending May 31, 2009 through 2013 are $6.3 million, $31.3 million, $6.3 million,
Note 8 Income Taxes
Income before income taxes is as follows:
Year Ended May 31, | |||||||||
2008 | 2007 | 2006 | |||||||
(In millions) | |||||||||
Income before income taxes: |
|||||||||
United States |
$ | 713.0 | $ | 805.1 | $ | 838.6 | |||
Foreign |
1,789.9 | 1,394.8 | 1,303.0 | ||||||
$ | 2,502.9 | $ | 2,199.9 | $ | 2,141.6 | ||||
63
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
The provision for income taxes is as follows:
Year Ended May 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(In millions) | ||||||||||||
Current: |
||||||||||||
United States |
||||||||||||
Federal |
$ | 469.9 | $ | 352.6 | $ | 359.0 | ||||||
State |
58.4 | 59.6 | 60.6 | |||||||||
Foreign |
391.8 | 261.9 | 356.0 | |||||||||
920.1 | 674.1 | 775.6 | ||||||||||
Deferred: |
||||||||||||
United States |
||||||||||||
Federal |
(273.0 | ) | 38.7 | (4.2 | ) | |||||||
State |
(5.0 | ) | (4.8 | ) | (6.8 | ) | ||||||
Foreign |
(22.6 | ) | 0.4 | (15.0 | ) | |||||||
(300.6 | ) | 34.3 | (26.0 | ) | ||||||||
$ | 619.5 | $ | 708.4 | $ | 749.6 | |||||||
Deferred tax assets and (liabilities) are comprised of the following:
May 31, | ||||||||
2008 | 2007 | |||||||
(In millions) | ||||||||
Deferred tax assets: |
||||||||
Allowance for doubtful accounts |
$ | 13.1 | $ | 12.4 | ||||
Inventories |
49.2 | 45.8 | ||||||
Sales return reserves |
49.2 | 42.1 | ||||||
Deferred compensation |
158.4 | 132.5 | ||||||
Stock-based compensation |
55.2 | 30.3 | ||||||
Reserves and accrued liabilities |
57.0 | 46.2 | ||||||
Property, plant, and equipment |
7.9 | 16.3 | ||||||
Foreign loss carry-forwards |
40.1 | 37.5 | ||||||
Foreign tax credit carry-forwards |
91.9 | 3.4 | ||||||
Hedges |
42.9 | 26.2 | ||||||
Other |
40.5 | 33.0 | ||||||
Total deferred tax assets |
605.4 | 425.7 | ||||||
Valuation allowance |
(40.7 | ) | (42.3 | ) | ||||
Total deferred tax assets after valuation allowance |
564.7 | 383.4 | ||||||
Deferred tax liabilities: |
||||||||
Undistributed earnings of foreign subsidiaries |
(113.2 | ) | (232.6 | ) | ||||
Property, plant and equipment |
(67.4 | ) | (66.1 | ) | ||||
Intangibles |
(214.2 | ) | (97.2 | ) | ||||
Hedges |
(1.3 | ) | (2.5 | ) | ||||
Other |
(0.7 | ) | (17.8 | ) | ||||
Total deferred tax liability |
(396.8 | ) | (416.2 | ) | ||||
Net deferred tax asset (liability) |
$ | 167.9 | $ | (32.8 | ) | |||
64
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
A reconciliation from the U.S. statutory federal income tax rate to the effective income tax rate follows:
Year Ended May 31, | |||||||||
2008 | 2007 | 2006 | |||||||
Federal income tax rate |
35.0 | % | 35.0 | % | 35.0 | % | |||
State taxes, net of federal benefit |
1.4 | 1.6 | 1.5 | ||||||
Foreign earnings |
(12.9 | ) | (4.1 | ) | (1.5 | ) | |||
Other, net |
1.3 | (0.3 | ) | | |||||
Effective income tax rate |
24.8 | % | 32.2 | % | 35.0 | % | |||
The effective tax rate for the year ended May 31, 2008 of 24.8% decreased from the fiscal 2007 effective tax rate of 32.2%. Over the last few years, a number of international entities generated losses for which the Company did not recognize offsetting tax benefits because the realization of those benefits was uncertain. The necessary steps to realize these benefits have now been taken resulting in a one-time reduction of the effective tax rate for the year ended May 31, 2008 of 4.2 percentage points. Also reflected in the effective tax rate for the year ended May 31, 2008 is a reduction in our on-going effective tax rate resulting from our operations outside of the United States; our tax rates on these operations are generally lower than the U.S. statutory rate. The effective tax rate for the year ended May 31, 2007 of 32.2% decreased from the fiscal 2006 effective tax rate of 35.0%. The decrease is primarily due to a European tax agreement entered into during the three months ended November 30, 2006. The Company recorded a retroactive benefit for the European tax agreement during the year ended May 31, 2007.
The Company adopted FIN 48 effective June 1, 2007. Upon adoption, the Company recognized an additional long-term liability of $89.4 million for unrecognized tax benefits, $15.6 million of which was recorded as a reduction to the Companys beginning retained earnings, and the remaining $73.8 million was recorded as a reduction to the Companys noncurrent deferred tax liability. In addition, the Company reclassified $12.2 million of unrecognized tax benefits from income taxes payable to other long term liabilities in conjunction with the adoption of FIN 48.
At the adoption date of June 1, 2007, the Company had $122.5 million of gross unrecognized tax benefits, excluding related interest and penalties, $30.7 million of which would affect the Companys effective tax rate if recognized in future periods. Including related interest and penalties and net of federal benefit of interest and unrecognized state tax benefits, at June 1, 2007, the Company had $135.0 million of total unrecognized tax benefits, $52.0 million of which would affect the Companys effective tax rate if recognized in future periods. As of May 31, 2008, the total gross unrecognized tax benefits, excluding related interest and penalties, were $251.1 million, $60.6 million of which would affect the Companys effective tax rate if recognized in future periods. The Company does not anticipate that total unrecognized tax benefits will change significantly within the next 12 months.
The following is a reconciliation of the changes in the gross balance of unrecognized tax benefits for the year (in millions):
Unrecognized tax benefits June 1, 2007 |
$ | 122.5 | ||
Gross increases related to prior period tax positions |
71.6 | |||
Gross decreases related to prior period tax positions |
(23.1 | ) | ||
Gross increases related to current period tax positions |
87.7 | |||
Settlements |
(13.4 | ) | ||
Lapse of statute of limitations |
(0.7 | ) | ||
Changes due to currency translation |
6.5 | |||
Unrecognized tax benefits May 31, 2008 |
$ | 251.1 | ||
65
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
The Company is subject to taxation primarily in the United States, China and the Netherlands as well as various state and other foreign jurisdictions. The Company has concluded substantially all U.S. federal income tax matters through fiscal year 2004. The Company is currently under audit by the Internal Revenue Service for the 2005 and 2006 tax years. The Companys major foreign jurisdictions, China and the Netherlands, have concluded substantially all income tax matters through calendar year 1997 and fiscal year 2002, respectively.
The Company recognizes interest and penalties related to income tax matters in income tax expense. Upon adoption at June 1, 2007, the Company had $32.0 million (excluding federal benefit) accrued for interest and penalties related to uncertain tax positions. The liability for payment of interest and penalties increased $41.2 million during the year ended May 31, 2008. As of May 31, 2008, accrued interest and penalties related to uncertain tax positions was $73.2 million (excluding federal benefit).
During the quarter ended November 30, 2005, the Companys CEO and Board of Directors approved a domestic reinvestment plan as required by the American Jobs Creation Act of 2004 (the Act) to repatriate $500 million of foreign earnings in fiscal 2006. The Act created a temporary incentive for U.S. multinational corporations to repatriate accumulated income earned outside the U.S. by providing an 85% dividend received deduction for certain dividends from controlled foreign corporations. A $500 million repatriation was made during the quarter ended May 31, 2006 comprised of both foreign earnings for which U.S. taxes have previously been provided and foreign earnings that had been designated as permanently reinvested. Accordingly, the provisions made did not have a material impact on the Companys income tax expense or effective tax rate for the years ended May 31, 2008, 2007 and 2006.
The Company has indefinitely reinvested approximately $1,808.6 million of the cumulative undistributed earnings of certain foreign subsidiaries. Such earnings would be subject to U.S. taxation if repatriated to the U.S. Determination of the amount of unrecognized deferred tax liability associated with the permanently reinvested cumulative undistributed earnings is not practicable.
Deferred tax assets at May 31, 2008, 2007 and 2006 were reduced by a valuation allowance relating to tax benefits of certain foreign subsidiaries with operating losses where it is more likely than not that the deferred tax assets will not be realized.
During the years ended May 31, 2008, 2007, and 2006, income tax benefits attributable to employee stock-based compensation transactions of $68.9 million, $56.6 million, and $54.2 million, respectively, were allocated to shareholders equity.
Note 9 Redeemable Preferred Stock
Sojitz America is the sole owner of the Companys authorized Redeemable Preferred Stock, $1 par value, which is redeemable at the option of Sojitz America or the Company at par value aggregating $0.3 million. A cumulative dividend of $0.10 per share is payable annually on May 31 and no dividends may be declared or paid on the common stock of the Company unless dividends on the Redeemable Preferred Stock have been declared and paid in full. There have been no changes in the Redeemable Preferred Stock in the three years ended May 31, 2008, 2007 and 2006. As the holder of the Redeemable Preferred Stock, Sojitz America does not have general voting rights but does have the right to vote as a separate class on the sale of all or substantially all of the assets of the Company and its subsidiaries, on merger, consolidation, liquidation or dissolution of the Company or on the sale or assignment of the NIKE trademark for athletic footwear sold in the United States.
66
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Note 10 Common Stock
The authorized number of shares of Class A Common Stock, no par value, and Class B Common Stock, no par value, are 175 million and 750 million, respectively. Each share of Class A Common Stock is convertible into one share of Class B Common Stock. Voting rights of Class B Common Stock are limited in certain circumstances with respect to the election of directors.
In 1990, the Board of Directors adopted, and the shareholders approved, the NIKE, Inc. 1990 Stock Incentive Plan (the 1990 Plan). The 1990 Plan provides for the issuance of up to 132 million previously unissued shares of Class B Common Stock in connection with stock options and other awards granted under the plan. The 1990 Plan authorizes the grant of non-statutory stock options, incentive stock options, stock appreciation rights, stock bonuses and the issuance and sale of restricted stock. The exercise price for non-statutory stock options, stock appreciation rights and the grant price of restricted stock may not be less than 75% of the fair market value of the underlying shares on the date of grant. The exercise price for incentive stock options may not be less than the fair market value of the underlying shares on the date of grant. A committee of the Board of Directors administers the 1990 Plan. The committee has the authority to determine the employees to whom awards will be made, the amount of the awards, and the other terms and conditions of the awards. The committee has granted substantially all stock options at 100% of the market price on the date of grant. Substantially all stock option grants outstanding under the 1990 plan were granted in the first quarter of each fiscal year, vest ratably over four years, and expire 10 years from the date of grant.
The weighted average fair value per share of the options granted during the years ended May 31, 2008, 2007 and 2006, as computed using the Black-Scholes pricing model, was $13.87, $8.80 and $9.68, respectively. The weighted average assumptions used to estimate these fair values are as follows:
Year Ended May 31, | |||||||||
2008 | 2007 | 2006 | |||||||
Dividend yield |
1.4 | % | 1.6 | % | 1 | % | |||
Expected volatility |
20 | % | 19 | % | 21 | % | |||
Weighted average expected life (in years) |
5.0 | 5.0 | 4.5 | ||||||
Risk-free interest rate |
4.8 | % | 5.0 | % | 4.0 | % |
The Company estimates the expected volatility based on the implied volatility in market traded options on the Companys common stock with a term greater than one year, along with other factors. The weighted average expected life of options is based on an analysis of historical and expected future exercise patterns. The interest rate is based on the U.S. Treasury (constant maturity) risk-free rate in effect at the date of grant for periods corresponding with the expected term of the options.
67
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
The following summarizes the stock option transactions under the plan discussed above:
Shares |
Weighted
Average Option Price |
|||||
(In millions) | ||||||
Options outstanding May 31, 2005 |
38.7 | $ | 27.49 | |||
Exercised |
(8.0 | ) | 24.68 | |||
Forfeited |
(1.8 | ) | 35.75 | |||
Granted |
11.5 | 43.68 | ||||
Options outstanding May 31, 2006 |
40.4 | 32.31 | ||||
Exercised |
(10.7 | ) | 27.55 | |||
Forfeited |
(1.6 | ) | 37.17 | |||
Granted |
11.6 | 39.54 | ||||
Options outstanding May 31, 2007 |
39.7 | $ | 35.50 | |||
Exercised |
(9.1 | ) | 33.45 | |||
Forfeited |
(0.9 | ) | 44.44 | |||
Granted |
6.9 | 58.50 | ||||
Options outstanding May 31, 2008 |
36.6 | $ | 40.14 | |||
Options exercisable at May 31, |
||||||
2006 |
16.6 | $ | 25.68 | |||
2007 |
15.3 | 29.52 | ||||
2008 |
16.2 | 32.35 |
The weighted average contractual life remaining for options outstanding and options exercisable at May 31, 2008 was 6.9 years and 5.4 years, respectively. The aggregate intrinsic value for options outstanding and exercisable at May 31, 2008 was $1,034.1 million and $582.3 million, respectively. The aggregate intrinsic value was the amount by which the market value of the underlying stock exceeded the exercise price of the options. The total intrinsic value of the options exercised during the years ended May 31, 2008, 2007 and 2006 was $259.4 million, $204.9 million and $144.0 million, respectively.
As of May 31, 2008, the Company had $90.9 million of unrecognized compensation costs from stock options, net of estimated forfeitures, to be recognized as selling and administrative expense over a weighted average period of 1.9 years.
In addition to the 1990 Plan, the Company gives employees the right to purchase shares at a discount to the market price under employee stock purchase plans (ESPPs). Employees are eligible to participate through payroll deductions up to 10% of their compensation. At the end of each six-month offering period, shares are purchased by the participants at 85% of the lower of the fair market value at the beginning or the ending of the offering period. Employees purchased 0.8 million shares in each of the years ended May 31, 2008, 2007 and 2006.
From time to time, the Company grants restricted stock and unrestricted stock to key employees under the 1990 Plan. The number of shares granted to employees during the years ended May 31, 2008, 2007 and 2006 were 110,000, 345,000 and 141,000 with weighted average values per share of $59.50, $39.38 and $43.38, respectively. Recipients of restricted shares are entitled to cash dividends and to vote their respective shares throughout the period of restriction. The value of all of the granted shares was established by the market price on the date of grant. During the years ended May 31, 2008, 2007 and 2006, the fair value of restricted shares vested was $9.0 million, $5.5 million and $13.4 million, respectively, determined as of the date of vesting.
68
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
During the years ended May 31, 2007 and 2006, the Company also granted shares of stock under the Long-Term Incentive Plan (LTIP), adopted by the Board of Directors and approved by shareholders in September 1997. During the year ended May 31, 2007, LTIP participants agreed to amend their grant agreements to eliminate the ability to receive payments in shares of stock; shares of stock are no longer awarded. Prior to the amendment, the LTIP provided for the issuance of cash or up to 2.0 million shares of Class B Common Stock to certain executives based on performance targets established over three-year time periods. Once performance targets are achieved, cash or shares of stock are issued. The shares are immediately vested upon grant. The value of the shares is established by the market price on the date of issuance. Under the LTIP, 3,000 and 6,000 shares with a price of $38.84 and $40.79, respectively, were issued during the years ended May 31, 2007 and 2006 for the plan years ended May 31, 2006 and 2005, respectively. Compensation expense recognized relating to shares issued during the years ended May 31, 2007 and 2006 was not material. The Company recognized $35.9 million, $30.0 million and $21.7 million of selling and administrative expense related to the cash awards during the years ended May 31, 2008, 2007 and 2006, respectively.
Note 11 Earnings Per Share
The following represents a reconciliation from basic earnings per common share to diluted earnings per common share. Options to purchase an additional 6.6 million, 9.5 million and 11.3 million shares of common stock were outstanding at May 31, 2008, 2007 and 2006, respectively, but were not included in the computation of diluted earnings per share because the options were antidilutive.
Year Ended May 31, | |||||||||
2008 | 2007 | 2006 | |||||||
(In millions, except per share data) | |||||||||
Determination of shares: |
|||||||||
Weighted average common shares outstanding |
495.6 | 503.8 | 518.0 | ||||||
Assumed conversion of dilutive stock options and awards |
8.5 | 6.1 | 9.6 | ||||||
Diluted weighted average common shares outstanding |
504.1 | 509.9 | 527.6 | ||||||
Basic earnings per common share |
$ | 3.80 | $ | 2.96 | $ | 2.69 | |||
Diluted earnings per common share |
$ | 3.74 | $ | 2.93 | $ | 2.64 | |||
Note 12 Benefit Plans
The Company has a profit sharing plan available to most U.S.-based employees. The terms of the plan call for annual contributions by the Company as determined by the Board of Directors. A subsidiary of the Company also has a profit sharing plan available to its U.S.-based employees. The terms of the plan call for annual contributions as determined by the subsidiarys executive management. Contributions of $37.3 million, $31.8 million, and $33.2 million were made to the plans and are included in selling and administrative expense for the years ended May 31, 2008, 2007 and 2006, respectively. The Company has various 401(k) employee savings plans available to U.S.-based employees. The Company matches a portion of employee contributions with common stock or cash. Company contributions to the savings plans were $33.9 million, $24.9 million, and $22.5 million for the years ended May 31, 2008, 2007 and 2006, respectively, and are included in selling and administrative expense.
The Company has pension plans in various countries worldwide. The pension plans are only available to local employees and are generally government mandated. The liability related to the unfunded pension liabilities of the plans was $90.6 million and $69.3 million at May 31, 2008 and 2007, respectively. Upon adoption of
69
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
SFAS No. 158, Employers Accounting for Defined Benefit Pension and Other Postretirement Plans (FAS 158) on May 31,
Note 13 Accumulated Other Comprehensive Income
The components of accumulated other comprehensive income are as follows:
May 31, | ||||||||
2008 | 2007 | |||||||
(In millions) | ||||||||
Cumulative translation adjustment and other (1) |
$ | 356.4 | $ | 234.3 | ||||
Net deferred loss on cash flow hedge derivatives |
(105.0 | ) | (56.9 | ) | ||||
$ | 251.4 | $ | 177.4 | |||||
(1) |
Cumulative translation adjustment and other for the year ended May 31, 2007 includes a $12.2 million net-of-tax adjustment relating to the adoption of FAS 158. See Note 12 for additional details. |
Note 14 Commitments and Contingencies
The Company leases space for certain of its offices, warehouses and retail stores under leases expiring from one to twenty-six years after May 31, 2008. Rent expense was $344.2 million, $285.2 million and $252.0 million for the years ended May 31, 2008, 2007 and 2006, respectively. Amounts of minimum future annual rental commitments under non-cancelable operating leases in each of the five years ending May 31, 2009 through 2013 are $312.4 million, $264.4 million, $228.9 million, $192.1 million, $163.9 million, respectively, and $692.3 million in later years.
As of May 31, 2008 and 2007, the Company had letters of credit outstanding totaling $193.4 million and $165.9 million, respectively. These letters of credit were generally issued for the purchase of inventory.
In connection with various contracts and agreements, the Company provides routine indemnifications relating to the enforceability of intellectual property rights, coverage for legal issues that arise and other items that fall under the scope of FASB Interpretation No. 45, Guarantors Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others. Currently, the Company has several such agreements in place. However, based on the Companys historical experience and the estimated probability of future loss, the Company has determined that the fair value of such indemnifications is not material to the Companys financial position or results of operations.
In the ordinary course of its business, the Company is involved in various legal proceedings involving contractual and employment relationships, product liability claims, trademark rights, and a variety of other matters. The Company does not believe there are any pending legal proceedings that will have a material impact on the Companys financial position or results of operations.
Note 15 Acquisition and Divestitures
Acquisition
On March 3, 2008 the Company completed its acquisition of 100% of the outstanding shares of Umbro, a leading United Kingdom-based global soccer brand, for a purchase price of 290.5 million British pounds sterling
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NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
in cash (approximately $576.4 million), inclusive of direct transaction costs. This acquisition is intended to significantly strengthen our market position in the United Kingdom and expand NIKEs global leadership in soccer, a key area of growth for the Company. This acquisition also provides scaled positions in emerging soccer markets such as China, Russia and Brazil. The results of Umbros operations have been included in the Companys consolidated financial statements since the date of acquisition as part of the Companys Other operating segment.
The acquisition of Umbro was accounted for as a purchase business combination in accordance with SFAS No. 141 Business Combinations. The purchase price was allocated to tangible and identifiable intangible assets acquired and liabilities assumed based on their respective estimated fair values on the date of acquisition, with the remaining purchase price recorded as goodwill. The valuation of these tangible and identifiable intangible assets and liabilities may be adjusted in future periods, subject to the availability of additional information during the allocation period regarding a pre-acquisition legal contingency.
Based on our purchase price allocation, identifiable intangible assets and goodwill relating to the purchase approximated $419.5 million and $319.2 million, respectively. Goodwill recognized in this transaction is deductible for tax purposes. Identifiable intangible assets include $378.4 million for trademarks that have an indefinite life, and $41.1 million for other intangible assets consisting of Umbros sourcing network, established customer relationships, and the United Soccer League Franchise. These intangible assets will be amortized on a straight line basis over estimated lives of 12 to 20 years.
The following table summarizes the allocation of the purchase price, including transaction costs of the acquisition, to the assets acquired and liabilities assumed at the date of acquisition based on their estimated fair values (in millions):
Current assets |
$ | 87.2 | ||
Non-current assets |
90.2 | |||
Identified intangible assets |
419.5 | |||
Goodwill |
319.2 | |||
Current liabilities |
(60.3 | ) | ||
Non-current liabilities |
(279.4 | ) | ||
Net assets acquired |
$ | 576.4 | ||
The pro forma effect of the acquisition on the combined results of operations was not material.
Divestitures
On December 17, 2007, the Company completed the sale of the Starter brand business to Iconix Brand Group, Inc. for $60.0 million in cash. This transaction resulted in a gain of $28.6 million during the year ended May 31, 2008.
On April 17, 2008, the Company completed the sale of NIKE Bauer Hockey Corp. for $189.2 million in cash to a group of private investors (the Buyer). The sale resulted in a net gain of $32.0 million recorded in the fourth quarter of the year ended May 31, 2008. This gain included the recognition of a $46.3 million cumulative foreign currency translation adjustment previously included in accumulated other comprehensive income. As part of the terms of the sale agreement, the Company granted the Buyer a royalty free limited license for the use of
71
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
certain NIKE trademarks for a transitional period of approximately two years. The Company deferred $41.0 million of the sale proceeds related to this license agreement, to be recognized over the license period.
The gains resulting from these divestitures are reflected in other (expense) income, net and in the corporate line in the segment presentation of pre-tax income in Note 17.
Note 16 Risk Management and Derivatives
The Company is exposed to global market risks, including the effect of changes in foreign currency exchange rates and interest rates. The Company uses derivatives to manage financial exposures that occur in the normal course of business. The Company does not hold or issue derivatives for trading purposes.
The Company formally documents all relationships between hedging instruments and hedged items, as well as its risk-management objective and strategy for undertaking hedge transactions. This process includes linking all derivatives to either specific assets or liabilities on the balance sheet or specific firm commitments or forecasted transactions.
Substantially all derivatives outstanding as of May 31, 2008 and 2007 are designated as either cash flow, fair value hedges or net investment hedges. All derivatives are recognized on the balance sheet at their fair value. Unrealized gain positions are recorded as other current assets or other non-current assets, depending on the instruments maturity date. Unrealized loss positions are recorded as accrued liabilities or other non-current liabilities. All changes in fair values of outstanding cash flow hedge derivatives, except the ineffective portion, are recorded in other comprehensive income, until net income is affected by the variability of cash flows of the hedged transaction. Changes in the fair value of hedges designated as fair value hedges are recorded in net income and are offset by the change in fair value of the underlying asset or liability being hedged. Changes in the fair values of outstanding net investment hedges, except any ineffective portion, are recorded within the cumulative translation adjustment component of other comprehensive income.
Cash Flow Hedges
The purpose of the Companys foreign currency hedging activities is to protect the Company from the risk that the eventual cash flows resulting from transactions in foreign currencies, including revenues, product costs, selling and administrative expenses, investments in U.S. dollar-denominated available-for-sale debt securities and intercompany transactions, including intercompany borrowings, will be adversely affected by changes in exchange rates. It is the Companys policy to utilize derivatives to reduce foreign exchange risks where internal netting strategies cannot be effectively employed.
Derivatives used by the Company to hedge foreign currency exchange risks are forward exchange contracts and options. Hedged transactions are denominated primarily in euros, British pounds and Japanese yen. The Company hedges up to 100% of anticipated exposures typically twelve months in advance, but has hedged as much as 34 months in advance. When intercompany loans are hedged, it is typically for their expected duration.
All changes in fair values of outstanding cash flow hedge derivatives, except the ineffective portion, are recorded in other comprehensive income, until net income is affected by the variability of cash flows of the hedged transaction. In most cases, amounts recorded in other comprehensive income will be released to net income some time after the maturity of the related derivative. The consolidated statement of income classification of effective hedge results is the same as that of the underlying exposure. Results of hedges of revenue and product costs are recorded in revenue and cost of sales, respectively, when the underlying hedged
72
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
transaction affects net income. Results of hedges of selling and administrative expense are recorded together with those costs when the related expense is recorded. Results of hedges of anticipated purchases and sales of U.S. dollar-denominated available-for-sale securities are recorded in other (expense) income, net when the securities are sold.
Results of hedges of anticipated intercompany transactions are recorded in other (expense) income, net when the transaction occurs. Hedges of recorded balance sheet positions are recorded in other (expense) income, net, together with the transaction gain or loss from the hedged balance sheet position.
Net foreign currency transaction gains and losses, which include hedge results captured in revenues, cost of sales, selling and administrative expense and other (expense) income, net, were a $197.3 million loss, a $27.9 million loss, and a $49.9 million gain for the years ended May 31, 2008, 2007, and 2006, respectively.
Premiums paid on options are initially recorded as deferred charges. The Company assesses the effectiveness of options based on the total cash flows method and records total changes in the options fair value to other comprehensive income to the degree they are effective.
As of May 31, 2008, $87.7 million of deferred net losses (net of tax) on both outstanding and matured derivatives accumulated in other comprehensive income are expected to be reclassified to net income during the next twelve months as a result of underlying hedged transactions also being recorded in net income. Actual amounts ultimately reclassified to net income are dependent on the exchange rates in effect when derivative contracts that are currently outstanding mature. As of May 31, 2008, the maximum term over which the Company is hedging exposures to the variability of cash flows for its forecasted and recorded transactions is 34 months.
The Company formally assesses both at a hedges inception and on an ongoing basis, whether the derivatives that are used in the hedging transaction have been highly effective in offsetting changes in the cash flows of hedged items and whether those derivatives may be expected to remain highly effective in future periods. Effectiveness for cash flow hedges is assessed based on forward rates. When it is determined that a derivative is not, or has ceased to be, highly effective as a hedge, the Company discontinues hedge accounting prospectively.
The Company discontinues hedge accounting prospectively when (1) it determines that the derivative is no longer highly effective in offsetting changes in the cash flows of a hedged item (including hedged items such as firm commitments or forecasted transactions); (2) the derivative expires or is sold, terminated, or exercised; (3) it is no longer probable that the forecasted transaction will occur; or (4) management determines that designating the derivative as a hedging instrument is no longer appropriate.
When the Company discontinues hedge accounting because it is no longer probable that the forecasted transaction will occur in the originally expected period, the gain or loss on the derivative remains in accumulated other comprehensive income and is reclassified to net income when the forecasted transaction affects net income. However, if it is probable that a forecasted transaction will not occur by the end of the originally specified time period or within an additional two-month period of time thereafter, the gains and losses that were accumulated in other comprehensive income will be recognized immediately in net income. In all situations in which hedge accounting is discontinued and the derivative remains outstanding, the Company will carry the derivative at its fair value on the balance sheet, recognizing future changes in the fair value in other (expense) income, net. Any hedge ineffectiveness is recorded in other (expense) income, net.
73
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
For each of the years ended May 31, 2008, 2007 and 2006, the Company recorded in other (expense) income, net an insignificant loss representing the total ineffectiveness of all cash flow hedges. The discontinuation of hedge accounting for any of the other aforementioned reasons did not materially impact net income for each of the years ended May 31, 2008, 2007 and 2006.
Fair Value Hedges
The Company is also exposed to the risk of changes in the fair value of certain fixed-rate debt attributable to changes in interest rates. Derivatives currently used by the Company to hedge this risk are receive-fixed, pay-variable interest rate swaps.
Substantially all interest rate swap agreements are designated as fair value hedges of the related long-term debt and meet the shortcut method requirements under FAS 133. Accordingly, changes in the fair values of the interest rate swap agreements are exactly offset by changes in the fair value of the underlying long-term debt. No ineffectiveness has been recorded to net income related to interest rate swaps designated as fair value hedges for the years ended May 31, 2008, 2007 and 2006.
As discussed in Note 7, during the year ended May 31, 2004, the Company issued a $50 million medium-term note maturing October 1, 2013 and simultaneously entered into a receive-fixed, pay-variable interest rate swap with the same notional amount and fixed interest rate as the note. However, the swap expired October 2, 2006. This interest rate swap was not accounted for as a fair value hedge. Accordingly, changes in the fair value of the swap were recorded to net income each period as a component of other (expense) income, net. The change in the fair value of the swap was not material for the years ended May 31, 2007 and 2006.
In fiscal 2003, the Company entered into an interest rate swap agreement related to a Japanese yen denominated intercompany loan with one of the Companys Japanese subsidiaries. The Japanese subsidiary pays variable interest on the intercompany loan based on 3-month LIBOR plus a spread. Under the interest rate swap agreement, the subsidiary pays fixed interest payments at 0.8% and receives variable interest payments based on 3-month LIBOR plus a spread based on a notional amount of 8 billion Japanese yen. This interest rate swap is not accounted for as a fair value hedge. Accordingly, changes in the fair value of the swap are recorded to net income each period as a component of interest income (expense), net. The change in the fair value of the swap was not material for the years ended May 31, 2008, 2007 and 2006.
Net Investment Hedges
During 2008, the Company began to hedge the risk of variability in foreign-currency-denominated net investments in wholly-owned international operations. Derivatives used by the Company to hedge this foreign currency exposure are forward exchange contracts and the underlying hedged investments are denominated in euros. All changes in fair value of the derivatives designated as net investment hedges, except ineffective portions, are reported in the cumulative translation adjustment component of other comprehensive income along with the foreign currency translation adjustments on those investments.
The Company assesses hedge effectiveness based on changes in forward rates. The Company recorded no ineffectiveness from its net investment hedges in 2008.
As of May 31, 2008, $68.6 million of deferred net losses on both outstanding and matured derivatives was included in the cumulative translation adjustment component of other comprehensive income.
74
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
The fair values of all derivatives recorded on the consolidated balance sheet are as follows:
May 31, | ||||||||
2008 | 2007 | |||||||
(In millions) | ||||||||
Unrealized Gains: |
||||||||
Foreign currency exchange contracts and options |
$ | 145.4 | $ | 43.5 | ||||
Interest rate swaps |
5.4 | 0.5 | ||||||
Unrealized (Losses): |
||||||||
Foreign currency exchange contracts and options |
(194.4 | ) | (90.6 | ) | ||||
Interest rate swaps |
| (2.6 | ) |
Concentration of Credit Risk
The Company is exposed to credit-related losses in the event of non-performance by counterparties to hedging instruments. The counterparties to all derivative transactions are major financial institutions with investment grade credit ratings. However, this does not eliminate the Companys exposure to credit risk with these institutions. This credit risk is generally limited to the unrealized gains in such contracts should any of these counterparties fail to perform as contracted. To manage this risk, the Company has established strict counterparty credit guidelines that are continually monitored and reported to senior management according to prescribed guidelines. The Company utilizes a portfolio of financial institutions either headquartered or operating in the same countries the Company conducts its business. As a result of the above considerations, the Company considers the risk of counterparty default to be minimal.
In addition to hedging instruments, the Company is subject to concentrations of credit risk associated with cash and equivalents and accounts receivable. The Company places cash and equivalents with financial institutions with investment grade credit ratings and, by policy, limits the amount of credit exposure to any one financial institution. The Company considers its concentration risk related to accounts receivable to be mitigated by the Companys credit policy, the lack of significance of outstanding balances owed by each individual customer at any point in time and the geographic dispersion of these customers.
Note 17 Operating Segments and Related Information
Operating Segments. The Companys operating segments are evidence of the structure of the Companys internal organization. The major segments are defined by geographic regions for operations participating in NIKE brand sales activity excluding NIKE Golf and NIKE Bauer Hockey. Each NIKE brand geographic segment operates predominantly in one industry: the design, production, marketing and selling of sports and fitness footwear, apparel, and equipment. The Other category shown below represents activities of Cole Haan, Converse, Exeter Brands Group (whose primary business was the Starter brand business which was sold on December 17, 2007), Hurley, NIKE Bauer Hockey (through April 16, 2008), NIKE Golf, and Umbro (beginning March 3, 2008) which are considered immaterial for individual disclosure based on the aggregation criteria in SFAS No. 131 Disclosures about Segments of an Enterprise and Related Information.
Where applicable, Corporate represents items necessary to reconcile to the consolidated financial statements, which generally include corporate activity and corporate eliminations.
Net revenues as shown below represent sales to external customers for each segment. Intercompany revenues have been eliminated and are immaterial for separate disclosure. The Company evaluates performance of individual operating segments based on pre-tax income. On a consolidated basis, this amount represents
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NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
income before income taxes as shown in the Consolidated Statements of Income. Reconciling items for pre-tax income represent corporate costs that are not allocated to the operating segments for management reporting including corporate activity, certain currency exchange rate gains and losses on transactions and intercompany eliminations for specific income statement items in the Consolidated Statements of Income.
Additions to long-lived assets as presented in the following table represent capital expenditures.
Accounts receivable, inventories and property, plant and equipment for operating segments are regularly reviewed by management and are therefore provided below.
Certain prior year amounts have been reclassed to conform to fiscal 2008 presentation.
Year Ended May 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(In millions) | ||||||||||||
Net Revenue |
||||||||||||
United States |
$ | 6,378.0 | $ | 6,107.1 | $ | 5,722.5 | ||||||
Europe, Middle East and Africa |
5,620.4 | 4,723.3 | 4,326.6 | |||||||||
Asia Pacific |
2,881.7 | 2,283.4 | 2,053.8 | |||||||||
Americas |
1,154.1 | 952.5 | 904.9 | |||||||||
Other |
2,592.8 | 2,259.6 | 1,947.1 | |||||||||
$ | 18,627.0 | $ | 16,325.9 | $ | 14,954.9 | |||||||
Pre-tax Income |
||||||||||||
United States |
$ | 1,391.9 | $ | 1,367.3 | $ | 1,315.2 | ||||||
Europe, Middle East and Africa |
1,266.2 | 1,036.2 | 992.6 | |||||||||
Asia Pacific |
692.6 | 508.3 | 436.4 | |||||||||
Americas |
239.3 | 192.7 | 177.6 | |||||||||
Other |
336.4 | 299.7 | 153.6 | |||||||||
Corporate |
(1,423.5 | ) | (1,204.3 | ) | (933.8 | ) | ||||||
$ | 2,502.9 | $ | 2,199.9 | $ | 2,141.6 | |||||||
Additions to Long-lived Assets |
||||||||||||
United States |
$ | 138.4 | $ | 67.3 | $ | 59.8 | ||||||
Europe, Middle East and Africa |
69.0 | 94.9 | 73.6 | |||||||||
Asia Pacific |
42.4 | 20.7 | 16.8 | |||||||||
Americas |
8.6 | 5.3 | 6.9 | |||||||||
Other |
61.5 | 36.0 | 33.2 | |||||||||
Corporate |
129.3 | 89.3 | 143.4 | |||||||||
$ | 449.2 | $ | 313.5 | $ | 333.7 | |||||||
Depreciation |
||||||||||||
United States |
$ | 49.2 | $ | 45.4 | $ | 54.2 | ||||||
Europe, Middle East and Africa |
64.8 | 47.4 | 46.9 | |||||||||
Asia Pacific |
31.1 | 25.2 | 28.4 | |||||||||
Americas |
6.7 | 6.1 | 6.4 | |||||||||
Other |
28.1 | 28.2 | 29.0 | |||||||||
Corporate |
123.7 | 117.4 | 117.1 | |||||||||
$ | 303.6 | $ | 269.7 | $ | 282.0 | |||||||
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NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Year Ended May 31, | |||||||||
2008 | 2007 | 2006 | |||||||
(In millions) | |||||||||
Accounts Receivable, net |
|||||||||
United States |
$ | 823.9 | $ | 806.8 | $ | 717.2 | |||
Europe, Middle East and Africa |
843.0 | 739.1 | 703.3 | ||||||
Asia Pacific |
406.1 | 296.6 | 319.7 | ||||||
Americas |
246.0 | 184.1 | 174.5 | ||||||
Other |
424.0 | 404.9 | 410.0 | ||||||
Corporate |
52.3 | 63.2 | 58.2 | ||||||
$ | 2,795.3 | $ | 2,494.7 | $ | 2,382.9 | ||||
Inventories |
|||||||||
United States |
$ | 834.0 | $ | 796.0 | $ | 725.9 | |||
Europe, Middle East and Africa |
705.7 | 554.5 | 590.1 | ||||||
Asia Pacific |
280.9 | 214.1 | 238.3 | ||||||
Americas |
181.1 | 132.0 | 147.6 | ||||||
Other |
396.6 | 378.7 | 330.5 | ||||||
Corporate |
40.1 | 46.6 | 44.3 | ||||||
$ | 2,438.4 | $ | 2,121.9 | $ | 2,076.7 | ||||
Property, Plant and Equipment, net |
|||||||||
United States |
$ | 318.4 | $ | 232.7 | $ | 219.3 | |||
Europe, Middle East and Africa |
370.5 | 325.4 | 266.6 | ||||||
Asia Pacific |
375.6 | 326.1 | 354.8 | ||||||
Americas |
20.4 | 16.9 | 17.0 | ||||||
Other |
126.9 | 103.6 | 98.2 | ||||||
Corporate |
679.3 | 673.6 | 701.8 | ||||||
$ | 1,891.1 | $ | 1,678.3 | $ | 1,657.7 | ||||
Revenues by Major Product Lines. Revenues to external customers for NIKE brand products are attributable to sales of footwear, apparel and equipment. Other revenues to external customers primarily include external sales by Cole Haan Holdings Incorporated, Converse Inc., Exeter Brands Group LLC (whose primary business was the Starter brand business which was sold December 17, 2007), Hurley International LLC, NIKE Bauer Hockey Corp. (through April 16, 2008), NIKE Golf, and Umbro Ltd. (beginning March 3, 2008).
Year Ended May 31, | |||||||||
2008 | 2007 | 2006 | |||||||
(In millions) | |||||||||
Footwear |
$ | 9,731.6 | $ | 8,514.0 | $ | 7,965.9 | |||
Apparel |
5,234.0 | 4,576.5 | 4,168.0 | ||||||
Equipment |
1,068.6 | 975.8 | 873.9 | ||||||
Other |
2,592.8 | 2,259.6 | 1,947.1 | ||||||
$ | 18,627.0 | $ | 16,325.9 | $ | 14,954.9 | ||||
Revenues and Long-Lived Assets by Geographic Area. Geographical area information is similar to that shown previously under operating segments with the exception of the Other activity, which has been allocated to the geographical areas based on the location where the sales originated. Revenues derived in the United States
77
NIKE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
were $7,938.5 million, $7,593.7 million, and $7,019.0 million, for the years ended May 31, 2008, 2007, and 2006, respectively. The Companys largest concentrations of long-lived assets primarily consist of the Companys world headquarters and distribution facilities in the United States and distribution facilities in Japan and Belgium. Long-lived assets attributable to operations in the United States, which are comprised of net property, plant & equipment were $1,109.9 million, $991.3 million, and $998.2 million at May 31, 2008, 2007, and 2006, respectively. Long-lived assets attributable to operations in Japan were $303.8 million, $260.6 million, and $296.3 million at May 31, 2008, 2007, and 2006, respectively. Long-lived assets attributable to operations in Belgium were $219.1 million, $198.3 million and $145.4 million at May 31, 2008, 2007, and 2006, respectively.
Major Customers. During the years ended May 31, 2008, 2007 and 2006, revenues derived from Foot Locker, Inc. represented 9 percent, 10 percent and 10 percent of the Companys consolidated revenues, respectively. Sales to this customer are included in all segments of the Company.
Item 9. Changes In and Disagreements with Accountants on Accounting and Financial Disclosure
There has been no change of accountants nor any disagreements with accountants on any matter of accounting principles or practices or financial statement disclosure required to be reported under this Item.
Item 9A. Controls and Procedures
We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our Exchange Act reports is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commissions rules and forms and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow for timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.
We carry out a variety of on-going procedures, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, to evaluate the effectiveness of the design and operation of our disclosure controls and procedures. Based on the foregoing, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective at the reasonable assurance level as of May 31, 2008.
Managements Annual Report on Internal Control Over Financial Reporting is included in Item 8 on pages 45-48 of this Report.
There has been no change in our internal control over financial reporting during our most recent fiscal quarter that has materially affected, or is reasonable likely to materially affect, our internal control over financial reporting.
No disclosure is required under this Item.
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Item 10. Directors, Executive Officers and Corporate Governance
The information required by Item 401 of Regulation S-K regarding directors is included under Election of Directors in the definitive Proxy Statement for our 2008 Annual Meeting of Shareholders and is incorporated herein by reference. The information required by Item 401 of Regulation S-K regarding executive officers is included under Executive Officers of the Registrant in Item 1 of this Report. The information required by Item 405 of Regulation S-K is included under Section 16(a) Beneficial Ownership Reporting Compliance in the definitive Proxy Statement for our 2008 Annual Meeting of Shareholders and is incorporated herein by reference. The information required by Item 406 of Regulation S-K is included under Code of Business Conduct and Ethics in the definitive Proxy Statement for our 2008 Annual Meeting of Shareholders and is incorporated herein by reference. The information required by Item 407(d)(4) and (d)(5) of Regulation S-K regarding the Audit Committee of the Board of Directors is included under Election of Directors in the definitive Proxy Statement for our 2008 Annual Meeting of Shareholders and is incorporated herein by reference.
Item 11. Executive Compensation
The information required by Items 402, 407(e)(4) and 407(e)(5) of Regulation S-K regarding executive compensation is included under Director Compensation for Fiscal 2008, Executive Compensation, Compensation Discussion and Analysis, Compensation Committee Interlocks and Insider Participation and Compensation Committee Report in the definitive Proxy Statement for our 2008 Annual Meeting of Shareholders and is incorporated herein by
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by Item 201(d) of Regulation S-K is included under Equity Compensation Plans in the definitive Proxy Statement for our 2008 Annual Meeting of Shareholders and is incorporated herein by reference. The information required by Item 403 of Regulation S-K is included under Stock Holdings of Certain Owners and Management in the definitive Proxy Statement for our 2008 Annual meeting of Shareholders and is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by Item 404 and 407(a) of Regulation S-K is included under Transactions with Related Persons and Board of Directors and Committees in the definitive Proxy Statement for our 2008 Annual
Item 14. Principal Accountant Fees and Services
The information required by this Item of Regulation S-K is included under Ratification Of Independent Registered Public Accounting Firm in the definitive Proxy Statement for our 2008 Annual Meeting of Shareholders and is incorporated herein by reference.
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Item 15. Exhibits and Financial Statement Schedules
(a) | The following documents are filed as part of this report: |
All other schedules are omitted because they are not applicable or the required information is shown in the financial statements or notes thereto.
3. EXHIBITS:
2.1 | Implementation Agreement, dated October 23, 2007, between Umbro Plc, NIKE Vapor Ltd., and NIKE, Inc. (incorporated by reference to Exhibit 2.1 to the Companys Current Report on Form 8-K filed October 25, 2007).* | |
3.1 | Restated Articles of Incorporation, as amended (incorporated by reference to Exhibit 3.1 to the Companys Quarterly Report on Form 10-Q for the fiscal quarter ended August 31, 2005). | |
3.2 | Third Restated Bylaws, as amended (incorporated by reference to Exhibit 3.2 to the Companys Current Report on Form 8-K filed February 20, 2007). | |
4.1 | Restated Articles of Incorporation, as amended (see Exhibit 3.1). | |
4.2 | Third Restated Bylaws, as amended (see Exhibit 3.2). | |
4.3 | Indenture dated as of December 13, 1996 between the Company and Bank One Trust Company, National Association (successor in interest to The First National Bank of Chicago), as Trustee (incorporated by reference to Exhibit 4.01 to Amendment No. 1 to Registration Statement No. 333-15953 filed by the Company on November 26, 1996). | |
4.4 | Form of Officers Certificate relating to the Companys Fixed Rate Medium-Term Notes and the Companys Floating Rate Medium-Term Notes, form of Fixed Rate Note and form of Floating Rate Note (incorporated by reference to Exhibits 4.2, 4.3 and 4.4 of the Companys Current Report on Form 8-K dated May 29, 2002). |
80
4.5 | Credit Agreement dated as of December 1, 2006 among NIKE, Inc., Bank of America, N.A., individually and as Agent, and the other banks party thereto (incorporated by reference to Exhibit 4.01 to the Companys Current Report on Form 8-K filed December 6, 2006). | |
4.6 | First Amendment to the Credit Agreement, dated August 24, 2007, among NIKE, Inc., Bank of America, N.A., as Administrative Agent, Citicorp USA, Inc., as Syndication Agent, and HSBC Bank USA, N.A., The Bank of Tokyo Mitsubishi UFG, Ltd. and Deutsche Bank Securities Inc., as Co-Documentation Agents, and the other Banks named therein. (incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report on for 10-Q for the fiscal quarter ended February 29, 2008) | |
4.7 | Extension and Second Amendment to the Credit Agreement, dated November 1, 2007, among NIKE, Inc., Bank of America, N.A., as Administrative Agent, Citicorp USA, Inc., as Syndication Agent, and HSBC Bank USA, N.A., The Bank of Tokyo Mitsubishi UFG, Ltd. and Deutsche Bank Securities Inc., as Co-Documentation Agents, and the other Banks named therein. (incorporated by reference to Exhibit 10.2 to the Companys Quarterly Report on for 10-Q for the fiscal quarter ended February 29, 2008) | |
10.1 | Form of Non-statutory Stock Option Agreement for options granted to non-employee directors under the 1990 Stock Incentive Plan (incorporated by reference to Exhibit 10.3 to the Companys Current Report on Form 8-K filed June 21, 2005).* | |
10.2 | Form of Indemnity Agreement entered into between the Company and each of its officers and directors.* | |
10.3 | NIKE, Inc. 1990 Stock Incentive Plan (incorporated by reference to Exhibit 10.3 to the Companys Annual Report on Form 10-K for the fiscal year ended May 31, 2007).* | |
10.4 | NIKE, Inc. Executive Performance Sharing Plan (incorporated by reference to Exhibit 10.4 to the Companys Annual Report on Form 10-K for the fiscal year ended May 31, 2007).* | |
10.5 | NIKE, Inc. Long-Term Incentive Plan.* | |
10.6 | NIKE, Inc. Deferred Compensation Plan (Amended and Restated effective January 1, 2008).* | |
10.7 | NIKE, Inc. Deferred Compensation Plan (Amended and Restated effective June 1, 2004) (applicable to amounts deferred before January 1, 2005) (incorporated by reference to Exhibit 10.6 to the Companys Annual Report on Form 10-K for the fiscal year ended May 31, 2004). | |
10.8 | NIKE, Inc. Foreign Subsidiary Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report on Form 10-Q for the fiscal quarter ended February 28, 2003).* | |
10.9 | Amended and Restated Covenant Not To Compete And Non-Disclosure Agreement between NIKE, Inc. and Mark G. Parker dated July 24, 2008 (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed July 24, 2008).* | |
10.10 | Amended and Restated Covenant Not to Compete and Non-Disclosure Agreement between NIKE, Inc. and Charles D. Denson dated July 24, 2008 (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K filed July 24, 2008).* | |
10.11 | Form of Non-Statutory Stock Option Agreement for options granted to executives under the 1990 Stock Incentive Plan (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K filed November 18, 2004).* | |
10.12 | Form of Long-Term Incentive Award Agreement under the Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed February 20, 2007).* | |
10.13 | Form of Restricted Stock Bonus Agreement under the 1990 Stock Incentive Plan (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K filed June 21, 2005).* |
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10.14 | Commercial Paper Agreement between NIKE, Inc., as Issuer, and Goldman, Sachs & Co., as Dealer (incorporated by reference to Exhibit 10.3 to the Companys Quarterly Report on Form 10-Q for the fiscal quarter ended February 28, 2007). | |
10.15 | Commercial Paper Agreement between NIKE, Inc., as Issuer, and Merrill Lynch Money Markets Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Dealer (incorporated by reference to Exhibit 10.4 to the Companys Quarterly Report on Form 10-Q for the fiscal quarter ended February 28, 2007). | |
10.16 | Commercial Paper Agreement between NIKE, Inc., as Issuer, and Wells Fargo Brokerage Services, LLC, as Dealer (incorporated by reference to Exhibit 10.5 to the Companys Quarterly Report on Form 10-Q for the fiscal quarter ended February 28, 2007). | |
10.17 | Covenant Not to Compete and Non-Disclosure Agreement between NIKE, Inc. and Donald W. Blair dated November 10, 1999 (incorporated by reference to Exhibit 10.15 to the Companys Annual Report on Form 10-K for the fiscal year ended May 31, 2006).* | |
10.18 | Covenant Not to Compete and Non-Disclosure Agreement between NIKE, Inc. and Gary DeStefano (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K filed August 11, 2006).* | |
10.19 | Covenant Not to Compete and Non-Disclosure Agreement between NIKE, Inc. and Trevor A. Edwards dated November 14, 2002.* | |
12.1 | Computation of Ratio of Earnings to Fixed Charges. | |
21 | Subsidiaries of the Registrant. | |
23 | Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm (set forth on page F-2 of this Annual Report on Form 10-K). | |
31 | Rule 13a-14(a) Certifications. | |
32 | Section 1350 Certifications. |
* | Management contract or compensatory plan or arrangement. |
The exhibits filed herewith do not include certain instruments with respect to long-term debt of NIKE and its subsidiaries, inasmuch as the total amount of debt authorized under any such instrument does not exceed 10 percent of the total assets of NIKE and its subsidiaries on a consolidated basis. NIKE agrees, pursuant to Item 601(b)(4)(iii) of Regulation S-K, that it will furnish a copy of any such instrument to the SEC upon request.
Upon written request to Investor Relations, NIKE, Inc., One Bowerman Drive, Beaverton, Oregon 97005-6453, NIKE will furnish shareholders with a copy of any Exhibit upon payment of $.10 per page, which represents our reasonable expenses in furnishing Exhibits.
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SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
Description |
Balance at
Beginning of Period |
Charged to
Costs and Expenses |
Charged to
Other Accounts |
Write-Offs
Net of Recoveries |
Balance at
End of Period |
|||||||||||
(In millions) | ||||||||||||||||
Allowance for doubtful accounts (current and non-current) (1) |
||||||||||||||||
For the year ended May 31, 2006 |
$ | 80.4 | $ | 13.6 | $ | 1.8 | $ | (28.2 | ) | $ | 67.6 | |||||
For the year ended May 31, 2007 |
67.6 | 18.5 | 1.8 | (16.2 | ) | 71.5 | ||||||||||
For the year ended May 31, 2008 |
71.5 | 25.7 | 4.2 | (23.0 | ) | 78.4 |
(1) |
The non-current portion of the allowance for doubtful accounts is classified in deferred income taxes and other assets on the consolidated balance sheet. |
F-1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statements on Form S-3 (333-71324) and Form S-8 (Nos. 033-63995, 333-63581, 333-63583, 333-68864, 333-68886, 333-71660, 333-104822, 333-104824, 333-117059, and 333-133360) of NIKE, Inc. of our report dated July 24, 2008 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in this Form 10-K.
/s/ P RICEWATERHOUSE C OOPERS LLP
Portland, Oregon
July 24, 2008
F-2
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
NIKE, INC. | ||
By:
|
/s/ M ARK G. P ARKER |
|
Mark G. Parker Chief Executive Officer and President |
Date: July 28, 2008
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature |
Title |
Date |
||
Principal Executive Officer and Director: |
||||
/s/ M ARK G. P ARKER Mark G. Parker |
Director, Chief Executive Officer and President |
July 28, 2008 | ||
Principal Financial and Accounting Officer: |
||||
/s/ D ONALD W. B LAIR Donald W. Blair |
Chief Financial Officer | July 28, 2008 | ||
Directors: |
||||
/s/ P HILIP H. K NIGHT Philip H. Knight |
Director | July 28, 2008 | ||
/s/ J OHN G. C ONNORS John G. Connors |
Director | July 28, 2008 | ||
/s/ J ILL K. C ONWAY Jill K. Conway |
Director | July 28, 2008 | ||
/s/ T IMOTHY D. C OOK Timothy D. Cook |
Director | July 28, 2008 | ||
/s/ R ALPH D. D E N UNZIO Ralph D. DeNunzio |
Director | July 28, 2008 | ||
/s/ A LAN B. G RAF , J R . Alan B. Graf, Jr. |
Director | July 28, 2008 | ||
/s/ D OUGLAS G. H OUSER Douglas G. Houser |
Director | July 28, 2008 |
S-1
Signature |
Title |
Date |
||
/s/ J EANNE P. J ACKSON Jeanne P. Jackson |
Director | July 28, 2008 | ||
/s/ J OHNATHAN A. R ODGERS Johnathan A. Rodgers |
Director | July 28, 2008 | ||
/s/ O RIN C. S MITH Orin C. Smith |
Director | July 28, 2008 | ||
/s/ J OHN R. T HOMPSON , J R . John R. Thompson, Jr. |
Director | July 28, 2008 |
S-2
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 Indemnitees 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 Indemnitees 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 Indemnitees 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 Indemnitees 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.
Indemnity Agreement Page 3
(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 limited to any amendments to or replacements of the Act adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its [officers/directors]; and
(ii) to the fullest extent authorized by the provision of the Act that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of the Act.
7. Exclusions . Notwithstanding any provision in this Agreement, the Corporation shall not be obligated under this Agreement to make any indemnification:
(a) for which payment is made to or on behalf of the Indemnitee under any insurance policy, except with respect to any excess amount to which the Indemnitee is entitled under this Agreement beyond the amount of payment under such insurance policy;
(b) for any liability for profits made from the purchase and sale by the Indemnitee of securities of the Corporation, which liability arises under Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar provision of any state statutory or common law;
(c) if a court having jurisdiction in the matter shall finally determine that such indemnification is not lawful under any applicable statute or public policy (and, in this respect, both the Corporation and the Indemnitee have been advised that in the opinion of the Securities and Exchange Commissions indemnification for liabilities arising under the Securities Act of 1933 is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable and that claims for such indemnification should be submitted to appropriate courts for adjudication unless, in the opinion of counsel, the matter has been settled by controlling precedent); or
(d) in connection with any Proceeding (or part of any Proceeding) initiated by the Indemnitee, or any Proceeding by the Indemnitee against the Corporation or its directors, officers, employees or other persons entitled to be indemnified by the Corporation, unless (i) the Corporation is expressly required by law to make the indemnification, (ii) the Proceeding was authorized by the Board of Directors of the Corporation, or (iii) the Indemnitee initiated the Proceeding pursuant to Section 11 of this Agreement and the Indemnitee is successful in whole or in part in the Proceeding.
Indemnity Agreement Page 4
8. Advances of Expenses . The Corporation shall pay the Expenses incurred by the Indemnitee in any Proceeding in advance of the final disposition of the Proceeding at the written request of the Indemnitee, if the Indemnitee:
(a) furnishes the Corporation a written affirmation of the Indemnitees good faith belief that the Indemnitee is entitled to be indemnified under this Agreement; and
(b) furnishes the Corporation a written undertaking to repay the advance to the extent that it is ultimately determined that the Indemnitee is not entitled to be indemnified by the Corporation. Such undertaking shall be an unlimited general obligation of the Indemnitee but need not be secured.
Advances pursuant to this Section 8 shall be made no later than ten (10) days after receipt by the Corporation of the affirmation and undertaking described in Sections 8(a) and 8(b) above, and shall be made without regard to the Indemnitees ability to repay the amount advanced and without regard to the Indemnitees ultimate entitlement to indemnification under this Agreement. The Corporation may establish a trust, escrow account or other secured funding source for the payment of advances made and to be made pursuant to this Section 8 or of other liability incurred by the Indemnitee in connection with any Proceeding.
9. Nonexclusivity and Continuity of Rights . The indemnification and advancement of Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which the Indemnitee may be entitled under any articles of incorporation, bylaw, any other agreement, any vote of shareholders or directors, the Act, or otherwise, both as to action in the Indemnitees official capacity and as to action in another capacity while holding such office. The indemnification under this Agreement shall continue as to the Indemnitee even though the Indemnitee may have ceased to be an [officer/director] of the Corporation or an officer, director, employee or agent of an enterprise related to the Corporation and shall inure to the benefit of the heirs, executors, administrators and personal representatives of the Indemnitee.
10. Procedure Upon Application for Indemnification . Any indemnification under Sections 3, 4, 5 or 6 shall be made no later than forty-five (45) days after receipt of the written request of the Indemnitee, unless a determination is made within such forty-five (45) day period by (a) the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to the applicable Proceeding, or (b) independent legal counsel in a written opinion (which counsel shall be appointed if such a quorum is not obtainable) that the Indemnitee is not entitled to indemnification under this Agreement.
11. Enforcement . The Indemnitee may enforce any right to indemnification or advances provided by this Agreement in any court of competent jurisdiction if (a) the Corporation denies the claim for indemnification or advances, in whole or in part, or (b) the Corporation does not dispose of such claim within the time period required by this Agreement. It shall be a defense to any such enforcement action (other than an action brought to enforce a claim for advancement of expenses pursuant to, and in compliance with, Section 8 of this Agreement) that the Indemnitee is not entitled to indemnification
Indemnity Agreement Page 5
under this Agreement. However, except as provided in Section 12 of this Agreement, the Corporation shall have no defense to an action brought to enforce a claim for advancement of expenses pursuant to Section 8 of this Agreement if the Indemnitee has tendered to the Corporation the affirmation and undertaking required thereunder. The burden of proving by clear and convincing evidence that indemnification is not appropriate shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors or independent legal counsel) to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct nor an actual determination by the Corporation (including its Board of Directors or independent legal counsel) that indemnification is improper because the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee is not entitled to indemnification under this Agreement or otherwise. The Indemnitees expenses incurred in connection with successfully establishing the Indemnitees right to indemnification or advances, in whole or in part, in any Proceeding shall also be indemnified by the Corporation, whether or not an action to enforce these rights is commenced.
The termination of any Proceeding by judgment, order of court, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee is not entitled to indemnification under Sections 3, 4 or 6 of this Agreement.
12. Notification and Defense of Claim . Not later than forty-five (45) days after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee will, if a claim in respect of the Proceeding is to be made against the Corporation under this Agreement, notify the Corporation of the commencement of the Proceeding. The omission to notify the Corporation will not relieve the Corporation from any liability which it may have to the Indemnitee otherwise than under this Agreement. With respect to any Proceeding as to which the Indemnitee notifies the Corporation of the commencement:
(a) The Corporation will be entitled to participate in the Proceeding at its own expense.
(b) Except as otherwise provided below, the Corporation may, at its option and jointly with any other indemnifying party similarly notified and electing to assume such defense, assume the defense of the Proceeding with legal counsel reasonably satisfactory to the Indemnitee. The Indemnitee shall have the right to use separate legal counsel in the Proceeding, but the Corporation shall not be liable to the Indemnitee under this Agreement, including Section 8 above, for the fees and expenses of separate legal counsel incurred after notice from the Corporation of its assumption of the defense, unless (i) the Indemnitee reasonably concludes that there may be a conflict of interest between the Corporation and the Indemnitee in the conduct of the defense of the Proceeding, or (ii) the Corporation does not use legal counsel to assume the defense of
Indemnity Agreement Page 6
such Proceeding. The Corporation shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Corporation or as to which the Indemnitee shall have made the conclusion provided for in (i) above.
(c) If two or more persons who may be entitled to indemnification from the Corporation, including the Indemnitee, are parties to any Proceeding, the Corporation may require the Indemnitee to use the same legal counsel as the other parties. The Indemnitee shall have the right to use separate legal counsel in the Proceeding, but the Corporation shall not be liable to the Indemnitee under this Agreement, including Section 8 above, for the fees and expenses of separate legal counsel incurred after notice from the Corporation of the requirement to use the same legal counsel as the other parties, unless the Indemnitee reasonably concludes that there may be a conflict of interest between the Indemnitee and any of the other parties required by the Corporation to be represented by the same legal counsel.
(d) The Corporation shall not be liable to indemnify the Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its written consent, which shall not be unreasonably withheld. The Indemnitee shall permit the Corporation to settle any Proceeding that the Corporation assumes the defense of, except that the Corporation shall not settle any action or claim in any manner that would impose any penalty or limitation on the Indemnitee or be otherwise prejudicial to his or her best interests without the Indemnitees written consent.
13. Partial Indemnification . If the Indemnitee is entitled under any provisions of this Agreement to indemnification by the Corporation for some or a portion of the Expenses, judgments, fines or amounts paid in settlement, actually and reasonably incurred by the Indemnitee in connection with such Proceeding, but not, however, for the total amount thereof, the Corporation shall nevertheless indemnify the Indemnitee for the portion of such Expenses, judgments, fines or amounts paid in settlement to which the Indemnitee is entitled.
14. Severability . If this Agreement or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the remainder of this Agreement shall continue to be valid and the Corporation shall nevertheless indemnify the Indemnitee as to Expenses, judgments, fines and amounts paid in settlement, with respect to any Proceeding, to the fullest extent permitted by any applicable portion of this Agreement that shall not have been invalidated or by any other applicable law.
15. Subrogation . In the event of payment under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee. The Indemnitee shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Corporation effectively to bring suit to enforce such rights.
Indemnity Agreement Page 7
16. Notices . All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (a) upon delivering by hand to the party to whom the notice or other communication shall have been directed, or (b) on the third business day after the date on which it is mailed by certified or registered mail with postage prepaid, addressed as follows:
(i) If to the Indemnitee, to the address indicated on the signature page of this Agreement.
(ii) If to the Corporation, to
General Counsel
NIKE, Inc.
One Bowerman Drive
Beaverton, Oregon 97005-6453
or to any other address as either party may designate to the other in writing.
17. Counterparts . This Agreement may be executed in any number of counterparts, each of which shall constitute the original.
18. Applicable Law . This Agreement shall be governed by and construed in accordance with the internal laws of the state of Oregon without regard to the principles of conflict of laws.
19. Successors and Assigns . This Agreement shall be binding upon the Corporation and its successors and assigns.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be duly executed and signed as of the day and year first above written.
CORPORATION: | INDEMNITEE: | |||||||
NIKE, Inc. | ||||||||
By: | ||||||||
Name: | [name] | |||||||
Title: | Address: | |||||||
JFC
01-1
Indemnity Agreement Page 8
EXHIBIT 10.5
NIKE, Inc. LONG-TERM INCENTIVE PLAN
This is the Long-Term Incentive Plan of NIKE, Inc. for the payment of incentive compensation to designated employees.
Section 1. Definitions.
The following terms have the following meanings:
Board: The Board of Directors of the Company.
Code: The Internal Revenue Code of 1986, as amended.
Committee: The Compensation Committee of the Board, provided however, if the Compensation Committee of the Board is not composed entirely of Outside Directors, the Committee shall mean a committee composed entirely of at least two Outside Directors appointed by the Board from time to time.
Company: NIKE, Inc.
Outside Directors: The meaning ascribed to this term in Section 162(m) of the Code and the regulations proposed or adopted thereunder.
Performance Period: The period of time for which Company performance is measured for purposes of a Target Award.
Performance Target: An objectively determinable level of performance as selected by the Committee to measure performance of the Company or any subsidiary, division, or other unit of the Company for the Performance Period based on one or more of the following: net income, net income before taxes, operating income, revenues, return on sales, return on equity, earnings per share, total shareholder return, or any of the foregoing before the effect of acquisitions, divestitures, accounting changes, restructuring, or other special charges, as determined by the Committee at the time of establishing a Performance Target.
Plan: The Long-Term Incentive Plan of the Company.
Target Award: An amount of compensation to be paid in cash to a Plan participant based on achievement of a particular Performance Target level, as established by the Committee.
Year: The fiscal year of the Company.
Section 2. Objectives.
The objectives of the Plan are to:
(a) recognize and reward on a long-term basis selected employees of the Company and its subsidiaries for their contributions to the overall profitability and performance of the Company; and
(b) qualify compensation under the Plan as performance-based compensation within the meaning of Section 162(m) of the Code and the regulations promulgated thereunder.
Section 3. Administration.
The Plan will be administered by the Committee. Subject to the provisions of the Plan, the Committee will have full authority to interpret the Plan, to establish and amend rules and regulations relating to it, to determine the terms and provisions for making awards and to make all other determinations necessary or advisable for the administration of the Plan.
Section 4. Participation.
Target Awards may be granted under the Plan only to individuals selected by the Committee who are employees of the Company or a subsidiary of the Company.
Section 5. Determination of the Performance Targets and Awards.
(a) Performance Targets and Awards. The Committee shall establish in writing, in its sole discretion, the Performance Targets and Target Award opportunities for each participant, within 90 days of the beginning of the applicable Performance Period. The Committee may establish (i) several Performance Target levels for each participant, each corresponding to a different Target Award opportunity, and (ii) different Performance Targets and Target Award opportunities for each participant in the Plan.
(b) Other Terms and Restrictions. The Committee may establish other restrictions to payment under a Target Award, such as a continued employment requirement, in addition to satisfaction of the Performance Targets.
(c) Maximum Awards. The Committee shall not establish Target Award opportunities for any participant such that the maximum amount payable under Target Awards which have Performance Periods ending in any single Year exceeds $4,000,000.
Section 6. Determination of Plan Awards.
At the conclusion of the Performance Period, in accordance with Section 162(m)(4)(C)(iii) of the Code, prior to the payment of any award under the Plan, the Committee shall certify in the Committees internal meeting minutes the attainment of the Performance Targets for the Performance Period and the calculation of the awards. No award shall be paid if the related Performance Target is not met. The Committee may,
in its sole discretion, reduce or eliminate any participants calculated award based on circumstances relating to the performance of the Company or the participant. Awards will be paid in accordance with the terms of the awards as soon as practicable following the Committees certification of the awards.
Section 7. Termination of Employment.
The terms of a Target Award may provide that in the event of a participants termination of employment for any reason during a Performance Period, the participant (or his or her beneficiary) will receive, at the time provided in Section 6, all or any portion of the award to which the participant would otherwise have been entitled.
Section 8. Miscellaneous.
(a) Amendment and Termination of the Plan. The Committee with the approval of the Board may amend, modify or terminate the Plan at any time and from time to time except insofar as approval by the Companys shareholders is required pursuant to Section 162(m)(4)(C)(ii) of the Code. The Plan shall terminate at the first shareholder meeting that occurs in the fifth year after the Companys shareholders approve the Plan. Notwithstanding the foregoing, no such amendment, modification or termination shall affect the payment of Target Awards previously established.
(b) No Assignment. Except as otherwise required by applicable law, no interest, benefit, payment, claim or right of any participant under the plan shall be subject in any manner to any claims of any creditor of any participant or beneficiary, nor to alienation by anticipation, sale, transfer, assignment, bankruptcy, pledge, attachment, charge or encumbrance of any kind, and any attempt to take any such action shall be null and void.
(c) No Rights to Employment. Nothing contained in the Plan shall give any person the right to be retained in the employment of the Company or any of its subsidiaries. The Company reserves the right to terminate a participant at any time for any reason notwithstanding the existence of the Plan.
(d) Beneficiary Designation. The Committee shall establish such procedures as it deems necessary for a participant to designate a beneficiary to whom any amounts would be payable in the event of a participants death.
(e) Plan Unfunded. The entire cost of the Plan shall be paid from the general assets of the Company. The rights of any person to receive benefits under the Plan shall be only those of a general unsecured creditor, and neither the Company nor the Board nor the Committee shall be responsible for the adequacy of the general assets of the Company to meet and discharge Plan liabilities, nor shall the Company be required to reserve or otherwise set aside funds for the payment of its obligations hereunder.
(f) Applicable Law. The Plan and all rights thereunder shall be governed by and construed in accordance with the laws of the State of Oregon.
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
Page | ||||
RECITALS | 1 | |||
ARTICLE I TITLE AND DEFINITIONS | 2 | |||
1.1 | Title | 2 | ||
1.2 | Definitions | 2 | ||
ARTICLE II PARTICIPATION | 9 | |||
2.1 | Participation | 9 | ||
ARTICLE III DEFERRAL OF COMPENSATION | 9 | |||
3.1 | Participant Elections to Defer Compensation | 9 | ||
3.2 | Directors 1999 Transition Election | 11 | ||
3.3 | Company or Participating Employer Contributions | 11 | ||
3.4 | Deferral of Long Term Incentive Payments | 12 | ||
3.5 | Investment Elections | 14 | ||
ARTICLE IV ACCOUNTS | 15 | |||
4.1 | Participant Accounts | 15 | ||
ARTICLE V VESTING | 16 | |||
5.1 | Compensation Deferrals | 16 | ||
5.2 | Company or Participating Employer Contributions | 16 | ||
5.3 | Directors 1999 Transition Retirement Plan Investments | 16 | ||
ARTICLE VI DISTRIBUTIONS | 16 | |||
6.1 | Termination of Service Due to Retirement or Death | 16 | ||
6.2 | Termination of Service For Reasons Other Than Retirement or Death | 18 | ||
6.3 | Scheduled Withdrawals | 18 | ||
6.4 | Unscheduled Withdrawals Due to Financial Emergency | 19 | ||
6.5 | Change of Control | 20 | ||
6.6 | Section 162(m) Limitation | 20 | ||
6.7 | Inability To Locate Participant | 21 | ||
ARTICLE VII ADMINISTRATION | 21 | |||
7.1 | Retirement Committee | 21 | ||
7.2 | Retirement Committee Action | 22 | ||
7.3 | Powers and Duties of the Retirement Committee | 22 | ||
7.4 | Trustee Duties | 23 | ||
7.5 | Company Duties | 23 | ||
ARTICLE VIII CLAIMS PROCEDURE | 24 | |||
8.1 | Submission of Claim | 24 | ||
8.2 | Denial of Claim | 24 | ||
8.3 | Review of Denied Claim | 24 | ||
8.4 | Decision upon Review of Denied Claim | 24 | ||
ARTICLE IX MISCELLANEOUS | 25 | |||
9.1 | Unsecured General Creditor | 25 | ||
9.2 | Restriction Against Assignment | 25 |
9.3 | Withholding | 25 | ||
9.4 | Amendment, Modification, Suspension or Termination | 25 | ||
9.5 | Governing Law | 26 | ||
9.6 | Entire Agreement | 26 | ||
9.7 | Receipt or Release | 26 | ||
9.8 | Payments on Behalf of Persons Under Incapacity | 26 | ||
9.9 | No Employment Rights | 26 | ||
9.10 | Headings, etc. Not Part of Agreement | 26 | ||
9.11 | Tax Liabilities from Plan | 27 | ||
APPENDIX I | 28 |
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 |
|
the amount is still subject to a substantial risk of forfeiture after December 31, 2004. |
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 Participants Salary that he or she elects to defer, (2) the portion of the Participants Bonus that he or she elects to defer, (3) the portion of the Participants Fees that he or she elects to defer, (4) the portion of the Participants 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 Participants 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 Participants death. No Beneficiary designation shall become effective until it is filed with the Retirement Committee during the Participants lifetime.
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(e) Board of Directors or Board means the Board of Directors of the Company.
(f) Bonus means incentive compensation payable under the Companys 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 Companys Class A and Class B common stock or a Participating Employers common stock, or fifty percent or more of the combined voting power of the Companys or Participating Employers 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 Companys or Participating Employers 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 Companys or Participating Employers 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) Directors 1999 Transition Retirement Benefit means the Actuarial Equivalent of the Directors 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) Directors 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 Participants Account.
(q) Distribution Event means, with respect to each Participant, the Participants Termination of Service for any reason, including Retirement or death, or the date of a Scheduled or Unscheduled Withdrawal. A Participants 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 individuals 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 Participants 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 Participants 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 Participants 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 Participants 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 Participants 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 Directors Retirement means the cessation of a Directors 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 Companys 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 Employees 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 Employees 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 Participants 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 Participants 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 Participants 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 Participants 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 Participants 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 Employers qualified plan) or a distribution under this Plan due to unforeseeable financial emergency, the Participants 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 Participants 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,
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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 Directors 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 Directors Retirement Annuity or to convert such annuity to the Directors 1999 Transition Retirement Benefit, in either case such benefit not payable until the Directors Retirement. In the event an electing Director converted the Directors 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 Employers 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 Employers 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 Employees allocated share of the Profit Sharing Contribution (as defined in the Profit Sharing Plan or the Participating Employers qualified retirement plan) for the corresponding plan year under the Profit Sharing Plan or Participating Employers 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.
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(c) Time and Form of Payment . If the Restoration Amount becomes payable due to the Participants 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 Participants 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 after the Payment Commencement Date for the form of payment that the Participant has elected to change. For purposes of this subsection, the Payment Commencement Date for a series of installment payments is treated as the date on which the first of such installment payments would be made under the terms of this Plan.
(e) Directors Retirement Contribution . In addition to any contributions made in accordance with Sections 3.3(a)-(d), the Company shall credit to the Accounts of any electing Director the number of shares of Company Stock equivalent to the electing Directors 1999 Transition Retirement Benefit. The Company may contribute such shares corresponding to the total of all the electing Directors benefits, at such time and in such amount as the Board or the Committee may determine, provided that any shares so contributed shall remain in the name of the Company (or any trust established by the Company for this purpose), and shall be its sole property in which no electing Director shall have any separable interest.
3.4 Deferral of Long Term Incentive Payments
(a) Deferral Permitted . A Participant who is eligible for a potential Long Term Incentive Payment may elect to defer receipt of the Long Term Incentive Payment under the provisions of this Section 3.4. The deferral election shall be expressed as a percentage of the potential Long Term Incentive Payment, in a whole percentage between zero and 100.
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(b) Timing of Deferral .
(1) General Rule . Long Term Incentive Payments generally are made in August of each year, based on actual financial performance compared against targets established by the Company or Participating Employer for a period of more than one fiscal year. The performance period ends on the last day of the Companys or Participating Employers specified fiscal year. To be eligible to defer a Long Term Incentive Payment, a Participant must make the deferral election no later than the last day of the calendar year immediately preceding the calendar year in which the specified performance period begins.
(2) Long Term Incentive Award Agreement (Mid-Plan Grant) . A Long Term Incentive Award Agreement (Mid-Plan Grant) may be used to provide incentive compensation similar to an award under the Long Term Incentive Plan when an Employee is not eligible for the Long Term Incentive Plan as of the eligibility cut-off date for a particular performance measuring period. An Eligible Employee may not elect to defer payments anticipated to be made pursuant to the Mid-Plan Grant.
(3) Interim Payouts . If the Company or a Participating Employer provides for potential interim payouts of Long Term Incentive Payments at the end of the first fiscal year of a multi-year award period, then a Participants deferral election with respect to Long Term Incentive Payments under paragraph (1) shall apply to the interim payout. A Participant may not make a separate deferral election with respect to interim payouts.
(c) Form of Deferral . In order to defer Long Term Incentive Payments into this Plan, the Participant must irrevocably agree to receive the Long Term Incentive Payment in the form of cash and not as Company stock.
(d) Duration of Deferral Election . A deferral election with respect to Long Term Incentive Payments shall remain in effect from year to year until modified or terminated as provided herein. The percentage of Long Term Incentive Payments designated by the Participant for deferral for future years may be modified by filing a new election, in accordance with the terms of this Section 3.4.
(e) Irrevocable Election . Once the deadline established by the Retirement Committee for making or modifying a deferral election has passed, a Participants election to defer receipt of a Long Term Incentive Payment under this Plan is irrevocable with respect to the Long Term Incentive Payment to which the deferral election relates.
(f) Administration . Long Term Incentive Payments deferred under this section shall be accounted for as part of the Participants Account and subject to the investment, distribution, and other provisions applicable to such Accounts.
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3.5 Investment Elections
(a) Hypothetical Investment Funds . The Retirement Committee may, in its discretion, provide each Participant with a list of investment Funds available for hypothetical investment, and the Participant may designate, in a manner specified by the Retirement Committee, one or more Funds in which his or her Account will be deemed to be invested for purposes of determining the amount of earnings to be credited to that Account. The Retirement Committee may, from time to time, in its sole discretion select a commercially available fund to substitute for the Fund actually selected. The Investment Return of each such commercially available fund shall be used to determine the amount of earnings to be credited to Participants Accounts under Section 4.1(e).
(b) Deemed Investment Elections . In making the designation pursuant to this Section 3.5, the Participant may specify that all or any 1% multiple of his or her Account be deemed to be invested in one or more of the Funds offered by the Retirement Committee. Subject to such limitations and conditions as the Retirement Committee may specify, a Participant may change the designation made under this Section 3.5 in such manner and at such time or times as the Retirement Committee shall specify. If a Participant fails to elect a Fund under this Section 3.5, or if the Retirement Committee shall not provide Participants with a list of Funds pursuant to this Section 3.5, the Participant shall be deemed to have elected a money market fund.
(c) No Company Obligation . The Company may, but need not, acquire investments corresponding to those designated by the Participants hereunder, and it is not under any obligation to maintain any investment it may make. Any such investments, if made, shall be in the name of the Company, and shall be its sole property in which no Participant shall have any interest.
(d) Directors Plan Investments . A 1999 Directors Transition Retirement Plan Subaccount shall be maintained on behalf of each Director participating in the Plan. The entirety of an electing Directors 1999 Transition Retirement Benefit shall be maintained in the 1999 Transition Retirement Plan Subaccount, reflecting the number of shares of Company Stock in which the electing Director is vested and entitled to under the Plan as his or her 1999 Transition Retirement Benefit. The number of units reflected in an electing Directors 1999 Transition Retirement Benefit Subaccount shall be appropriately adjusted periodically to reflect any dividend, split, split-up or any combination or exchange, however, accomplished, with respect to the shares of Company Stock represented by such units.
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ARTICLE IV
ACCOUNTS
4.1 Participant Accounts
The Retirement Committee shall establish and maintain an Account for each Participant under the Plan. Each Participants Account may be further divided into separate subaccounts (investment fund subaccounts), corresponding to investment Funds selected by the Participant pursuant to Section 3.5 or as otherwise determined by the Retirement Committee to be necessary or appropriate for proper Plan administration. A Participants Account shall be credited as follows:
(a) Salary and Fees Deferrals . As soon as practicable following the end of each applicable pay period, the Retirement Committee shall credit the investment fund subaccounts of the Participants Account with an amount equal to Salary, or Fees deferred by the Participant during each pay period in accordance with the Participants election; that is, the portion of the Participants deferred Salary, or Fees that the Participant has elected to be deemed to be invested in a certain type of investment Fund shall be credited to the investment fund subaccount corresponding to that investment Fund.
(b) Bonus Deferrals . As soon as practicable after each Bonus or deferred portion of Bonus would have been paid to the Participant, the Retirement Committee shall credit the investment fund subaccounts of the Participants Account with an amount equal to the portion of the Bonus deferred by the Participants election; that is, the portion of the Participants deferred Bonus that the Participant has elected to be deemed to be invested in a certain type of investment Fund shall be credited to the investment fund subaccount corresponding to that investment Fund.
(c) Company or Participating Employer Contribution . As soon as practicable after the last day of the Plan Year or such earlier time or times as the Retirement Committee may determine, the Retirement Committee shall credit the investment fund subaccounts of the Participants Account with an amount equal to the portion, if any, of any Company or Participating Employer contribution made to or for the Participants benefit in accordance with Section 3.3; that is, the portion of the Participants Company or Participating Employer contribution, if any, that the Participant has elected to be deemed to be invested in a certain type of investment Fund shall be credited to the investment fund subaccount corresponding to that investment Fund.
(d) Long Term Incentive Payments . As soon as practicable after Long Term Incentive Payments are declared and payable, the Committee shall credit the investment fund subaccounts of the Participants Account with an amount equal to the portion of the Long Term Incentive Payment deferred by the Participants election under Section 3.4.
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(e) Investment Returns . On each Valuation Date, each investment fund subaccount of a Participants Account shall be adjusted for deemed Investment Returns in an amount equal to that determined by multiplying the balance credited to such investment fund subaccount as of the preceding Valuation Date by the Investment Return for the corresponding Fund selected by the Company.
ARTICLE V
VESTING
5.1 Compensation Deferrals . A Participants Account attributable to Compensation and Long Term Incentive Payments deferred by a Participant pursuant to the terms of this Plan, together with any amounts credited to the Participants Account under Section 4.1(e) with respect to such deferrals, shall be 100 percent vested at all times.
5.2 Company or Participating Employer Contributions . Unless specified otherwise by the Board, a Participating Employer or the Retirement Committee, the value of a Participants Account attributable to any Company or Participating Employer contributions pursuant to Section 3.3, together with any amounts credited to the Participants Account under Section 4.1(e) with respect to such amounts, shall be vested in the same proportion as the profit-sharing contributions made to the Participants account in the Profit Sharing Plan or in the Participating Employers qualified retirement plan for the corresponding plan year.
5.3 Directors 1999 Transition Retirement Plan Investments . An electing Directors 1999 Transition Retirement Benefit, together with any earnings thereon, shall be 100 percent vested at all times.
ARTICLE VI
DISTRIBUTIONS
6.1 Termination of Service Due to Retirement or Death
(a) Distribution Event . If a Participant has a Termination of Service as a result of Retirement or death, and provided that such Participant does not return to Service prior to the Payment Commencement Date, the Participants Distributable Amount shall be paid in the form specified in 6.1(b), except as provided in Section 3.3(c) regarding Restoration Amounts or Section 3.3(d) regarding Discretionary Contributions.
(b) Form of Payment .
(1) Default Form of Payment . Payment of the Distributable Amount will be made to the Participant (and after his or her death to his or her Beneficiary) in quarterly installments over 15 years beginning on the Participants Payment Commencement Date. One quarterly installment shall be paid during each of the calendar quarters of each Plan Year. A calendar quarter means the three-month
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period ending March 31, June 30, September 30, and December 31 of each year. If the Participants Distributable Amount is paid in installments, the Participants Account value shall continue to be adjusted for investment returns pursuant to Section 4.1(e) of the Plan through the date of distribution. The Participant may change the default form of payment only in accordance with Section 6.1(b)(2) and (b)(4).
(2) Optional Forms of Payment . In lieu of quarterly installments over 15 years, a Participant may elect a single cash lump sum payment or quarterly installments over five or 10 years. The election must be made during an Election Period under the Plan and will apply to the entire amount of Compensation and Long Term Incentive Payments subject to deferral for that Election Period. A separate optional form of payment may be elected at each Election Period during the Participants participation in the Plan. If the Participant fails to elect an optional form of payment at any given Election Period, then the form of payment specified in the most recent preceding Election Period shall apply to all subsequent amounts deferred under the Plan, until a different election is made at a subsequent Election Period. Once an optional form of payment has been elected with respect to amounts deferred for a Plan Year, the Participant can change the optional form of payment only in accordance with 6.1(b)(4).
(3) Amount of Quarterly Installments . The amount of each quarterly installment shall be determined by dividing the vested Account balance by the remaining number of quarterly installment payments. For example, if the form of payment is quarterly installments over 15 years, the first payment is determined by dividing the vested Account balance as of the Valuation Date by 60, the second payment is determined by dividing the vested Account balance as of the next Valuation Date by 59, and so on until all installments have been paid.
(4) Change in Time or Form . A Participant may change the form of distribution of Company or Participating Employer contributions under Section 3.3 or the time or form of distribution under this subsection 6.1(b), provided that:
(A) his or her change is filed with the Retirement Committee at least twelve months prior to his or her Payment Commencement Date; and
(B) the first payment made under the newly elected time or form of payment cannot be made sooner than five years after the Payment Commencement Date for the time or form of payment that the Participant has elected to change. For purposes of this subsection, the Payment Commencement Date is the first day of the period for which a payment would be made under the terms of this Plan, and the entitlement to a series of installment payments is treated as entitlement to a single payment
(5) Small Benefit Amounts . Notwithstanding the foregoing distribution provisions of 6.1, if the Participants Distributable Amount is less than or equal to
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the dollar limit under Code Section 402(g) for the calendar year in which the Termination of Service occurs ($15,500 for 2008), the Distributable Amount shall automatically be distributed in the form of a cash lump sum on the Participants Payment Commencement Date for a lump sum form of payment.
(6) Section 162(m) . Amounts payable pursuant to this subsection 6.1(b) shall be subject to the limitation on payout under Section 6.6.
(7) Death While Receiving Benefits . If the Participant is in pay status at the time of death, the Beneficiary shall be paid the remaining quarterly installments as they come due.
(c) Directors 1999 Transition Retirement Plan Distribution . Notwithstanding the foregoing distribution provisions with respect to a Participants other Accounts, an electing Directors 1999 Transition Retirement Benefit and Company Stock subaccounts, shall be paid to such Director (or his or her designated beneficiary) in a single lump sum distribution upon the Directors Retirement, long-term disability or death. Distributions of such subaccounts shall be made in shares of Company Stock.
6.2 Termination of Service For Reasons Other Than Retirement or Death . In the case of a Participant whose Service terminates for any reason other then Retirement or death, the Participants distribution elections shall be disregarded, and the Distributable Amount shall be paid to the Participant in the form of a single cash lump sum on the Participants Payment Commencement Date, provided that no such distribution shall occur in the event the Participant returns to Service prior to the Payment Commencement Date.
6.3 Scheduled Withdrawals
(a) Timing . At any Election Period, a Participant may, in connection with his or her election to defer Compensation, specify a withdrawal date (a Scheduled Withdrawal) for all of his or her Compensation and Long Term Incentive Payments deferred pursuant to the election made during the Election Period. A Participants Scheduled Withdrawal election must specify a calendar month falling in a calendar year that begins at least three years after the date the election is received by the Company.
(b) Procedure . The election to take a Scheduled Withdrawal shall be made by filing a form provided by and filed with the Retirement Committee.
(c) Amount Distributable . The amount payable to a Participant in connection with a Scheduled Withdrawal shall in all cases be 100 percent of the deferred Compensation and Long Term Incentive Payments that are subject to the Participants Scheduled Withdrawal election for the applicable Election Period, together with any earnings credited to such deferred amounts pursuant to Section 4.1(e), determined as of the Scheduled Withdrawal date, provided that no portion of the Account attributable to Company or Participating Employer contributions described in Section 3.3, if any, shall be eligible for Scheduled Withdrawal.
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(d) Postponement . A Participant may, at least one year prior to a Scheduled Withdrawal date, revoke his or her Scheduled Withdrawal election in favor of a later Scheduled Withdrawal date that is at least five years later, provided that a Participant may not postpone a Scheduled Withdrawal more than twice.
(e) Form . Subject to Section 6.6, payment of a Scheduled Withdrawal shall be made in a single lump sum within 90 days after the Scheduled Withdrawal date, provided that the Participant may not designate when the payment will be made within this 90-day period.
(f) Effect of Termination of Service . A Participants Scheduled Withdrawal election shall become void and of no effect upon the Participants Termination of Service for any reason before the Participants Scheduled Withdrawal date. In such event, the distribution provisions of Section 6.1 or 6.2 (as applicable) shall apply.
6.4 Unscheduled Withdrawals Due to Financial Emergency
(a) Standard . Participants may request a withdrawal of amounts attributable to deferrals of Compensation and Long Term Incentive Payments prior to the time such amounts would otherwise be distributed under this Plan only upon demonstrating to the satisfaction of the Retirement Committee that the Participant has experienced an unforeseeable financial emergency. For purposes of this section, an unforeseeable financial emergency means a severe financial hardship to the Participant resulting from an illness or accident of the Participant, the Participants spouse, the Participants tax dependent(s) or the Participants Beneficiary, loss of the Participants property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the Participants control.
(b) Procedure . The election to take an Unscheduled Withdrawal shall be made by filing a form approved by the Retirement Committee. Upon receiving an Unscheduled Withdrawal request, the Retirement Committee shall determine, in its discretion as applied in a uniform and nondiscriminatory manner, whether to permit any such Unscheduled Withdrawal and the amount, if any, to be withdrawn.
(c) Amount . The amount distributed for an Unscheduled Withdrawal shall be limited to the amount necessary to satisfy the financial emergency, plus an amount necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which the financial emergency is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation of the Participants assets.
(d) Suspension of Participation . If a Participant receives an Unscheduled Withdrawal, the Participant shall be ineligible to make deferrals to the Plan for the balance of the Plan Year in which the Unscheduled Withdrawal occurs.
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(e) Partial Unscheduled Withdrawals . An Unscheduled Withdrawal pursuant to this Section 6.4 of less than the Participants total Account shall be made pro rata from his or her assumed investments according to the balances in such investments as of the Valuation Date for Unscheduled Withdrawals. Payment of the approved Unscheduled Withdrawal amount shall be made in a single cash lump sum within 90 days after the Unscheduled Withdrawal election is approved by the Retirement Committee, provided that the Participant may not designate when the payment will be made within this 90-day period.
6.5 Change of Control
(a) Notwithstanding anything in this Article 6 to the contrary, but subject to Sections 6.5(b) and 6.5(c), the Distributable Amount shall be paid to each Participant (or, after his or her death, to his or her Beneficiary) in a single cash lump sum within 30 days after the date of a Change of Control that applies to that Participant; provided, however, that, with respect to any Change of Control that occurs during the 2008 Plan Year, the Distributable Amount shall be paid in January 2009 to each Participant to whom such Change of Control applies (or, after his or her death, to his or her Beneficiary). For example, if a Change of Control occurs with respect to a Participating Employer, this Section 6.5(a) shall apply only to Participants employed by that Participating Employer and not to Participants employed by the Company or Participating Employers for which a Change of Control has not occurred.
(b) Notwithstanding anything to the contrary in this Plan, if a Change of Control occurs with respect to the Company during the 2008 Plan Year, then payment of the Distributable Amount shall be commenced to each Participant (or, after his or her death, to his or her Beneficiary) within 30 days after the date of such Change of Control and such amount shall be paid in such form as elected by the Participant with respect to a distribution by reason of the Participants Retirement or, if no such election has been filed, in a lump sum.
(c) Notwithstanding anything to the contrary in this Plan, if both (1) a Change of Control occurs with respect to a Participating Employer during the 2008 Plan Year and (2) a Participant employed by that Participating Employer has a Termination of Service in the 2008 Plan Year after such Change of Control, then any resulting payment(s) that would have been made to the Participant (or, after his or her death, to his or her Beneficiary) in the 2008 Plan Year had such Change of Control not occurred shall be made in the 2008 Plan Year and the remaining Distributable Amount shall be paid to the Participant (or, after his or her death, to his or her Beneficiary) in January 2009 pursuant to Section 6.5(a).
6.6 Section 162(m) Limitation
If the Retirement Committee determines in good faith prior to a Change of Control that there is a reasonable likelihood that all or any portion of any payment of benefits under this Article 6 to a Participant would not be deductible for federal income tax purposes by the Company or a
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Participating Employer because of a limitation on the total amount of the Participants deductible compensation from the Company or the Participating Employer, including any other such compensation already paid to the Participant earlier in the same fiscal year of the Company or Participating Employer, the following shall apply:
(a) Deferred Payment . Payment of the non-deductible amount shall be deferred until the first day of the following fiscal year of the Company or Participating Employer that employs the Participant.
(b) Additional Deferral . If the amount deferred under subsection (a) would exceed the limitation of the total amount of the Participants deductible compensation from the Company or Participating Employer for the following fiscal year, the excess shall be deferred to the first day of the succeeding fiscal year in which the deductibility of compensation paid or payable to the Participant will not be so limited, subject to subsection (c).
(c) Limit on Deferral . In no event shall any payment be deferred under this Section 6.6 more than three years from the date scheduled for payment under this Section 6.
(d) Investment Returns . Adjustment for earnings shall continue to be applied under Section 4.1(e) during the period of deferral under this Section 6.6.
6.7 Inability To Locate Participant
In the event that the Retirement Committee is unable to locate a Participant or Beneficiary within two years following the Participants Distribution Event, the amount allocated to the Participants Account shall be conditionally forfeited. If, after such forfeiture, the Participant or Beneficiary later claims such benefit, such benefit (calculated immediately prior to the forfeiture) shall be reinstated without interest or earnings from the date of the conditional forfeiture.
ARTICLE VII
ADMINISTRATION
7.1 Retirement Committee
A Retirement Committee shall be appointed by, and serve at the pleasure of, the Board. The number of members comprising the Retirement Committee shall be determined by the Board, which may from time to time vary the number of members. A member of the Retirement Committee may resign by delivering a written notice of resignation to the Board. The Board may remove any member by delivering a certified copy of its resolution of removal to such member. Vacancies in the membership of the Retirement Committee shall be filled promptly by the Board.
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7.2 Retirement Committee Action
A majority of the members of the Retirement Committee at the time in office shall constitute a quorum for the transaction of business at all meetings. The Retirement Committee shall act at meetings at which a quorum of members is present by affirmative vote of a simple majority of the members present. Any action permitted to be taken at a meeting may be taken without a meeting if, prior to such action, a written consent to the action is signed by all members of the Retirement Committee and such written consent is filed with the minutes of the proceedings of the Retirement Committee. A member of the Retirement Committee shall not vote or act upon any matter which relates solely to himself or herself as a Participant. The chairman or any other member or members of the Retirement Committee designated by the chairman may execute any certificate or other written direction on behalf of the Retirement Committee.
7.3 Powers and Duties of the Retirement Committee
(a) General . The Retirement Committee, on behalf of the Participants and their Beneficiaries, shall enforce the Plan in accordance with its terms, shall be charged with the general administration of the Plan and shall have all powers necessary to accomplish its purposes, including, but not by way of limitation, the following:
(1) | To select the funds to be the investment Funds in accordance with Section 3.5 hereof; |
(2) | To construe and interpret the terms and provisions of this Plan; |
(3) | To amend, modify, suspend or terminate the Plan in accordance with Section 9.4; |
(4) | To provide periodic statements of Account to Participants and Beneficiaries; |
(5) | To compute and certify the amount and kind of benefits payable to Participants and their Beneficiaries and to direct the Trustee as to the distribution of Trust assets; |
(6) | To maintain all records that may be necessary for the administration of the Plan; |
(7) | To provide for the disclosure of all information and the filing or provision of all reports and statements to Participants, Beneficiaries or governmental agencies as shall be required by law; |
(8) | To make and publish such rules for the regulation of the Plan and procedures for the administration of the Plan as are not inconsistent with the terms of this Plan document; |
(9) | To appoint and retain legal counsel to assist the Retirement Committee in carrying out the administration of the Plan; and |
(10) | To appoint a plan administrator or any other agent, and to delegate to them such powers and duties in connection with the administration of the Plan as the Retirement Committee may from time to time prescribe. |
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(b) Corrective Action . In the event that any Participants are found to be ineligible, that is, not members of a select group of management or highly compensated employees, according to a determination made by the U.S. Department of Labor, the Retirement Committee shall take whatever steps it deems necessary, in its sole discretion, to equitably protect the interests of all Participants.
(c) Construction and Interpretation . The Retirement Committee shall have full discretion to construe and interpret the terms and provisions of this Plan, which interpretation or construction shall be final and binding on all parties, including but not limited to the Company, the Participating Employers, and any Participant or Beneficiary. The Retirement Committee shall administer such terms and provisions in a uniform and nondiscriminatory manner and in full accordance with any and all laws applicable to the Plan.
(d) Information . To enable the Retirement Committee to perform its functions, the Company and Participating Employers shall supply full and timely information to the Retirement Committee on all matters relating to the Compensation of all Participants, their death or other cause of Termination of Service, and such other pertinent facts as the Retirement Committee may reasonably require. The Retirement Committee is entitled to rely on the accuracy of all such information provided.
(e) Compensation, Expenses and Indemnity . The members of the Retirement Committee shall serve without compensation for their services in connection with Plan administration. Expenses and fees in connection with the administration of the Plan shall be paid by the Company. To the extent permitted by applicable state law, the Company and Participating Employers shall indemnify and save harmless the Retirement Committee and each member thereof, the Board, and any delegate of the Retirement Committee who is an employee of the Company or a Participating Employer, against any and all expenses, liabilities and claims, including legal fees to defend against such liabilities and claims arising out of their discharge in good faith of responsibilities under or incident to the Plan, other than expenses and liabilities arising out of bad faith or willful misconduct. This indemnity shall not preclude such further indemnities as may be available under insurance purchased by the Company or a Participating Employer or provided by the Company or a Participating Employer under any bylaw, agreement or otherwise, to the extent such indemnities are permitted under state law.
7.4 Trustee Duties
The Trustee shall manage, invest and reinvest the Trust Fund as provided in the Trust Agreement. The Trustee shall collect the income on the Trust Fund, and make distributions therefrom, all as provided in this Plan and in the Trust Agreement. The Trustee shall not be liable for any failure by the Company to provide contributions sufficient to pay all accrued benefits under the Plan in accordance with the terms of this Plan.
7.5 Company Duties
While the Plan remains in effect, the Company shall make contributions to the Trust Fund at least once each quarter. As soon as practicable after the close of each Plan quarter, the Company
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shall make an additional contribution to the Trust Fund to the extent that previous contributions to the Trust Fund for the current Plan quarter are less than the total of the deferrals made by each Participant plus Company or Participating Employer contributions, if any, accrued as of the close of the current Plan quarter.
ARTICLE VIII
CLAIMS PROCEDURE
8.1 Submission of Claim
Benefits shall be paid in accordance with the provisions of this Plan. The Participant, or any person claiming through the Participant (Claiming Party), shall make a written request for benefits under this Plan, mailed or delivered to the Retirement Committee. Such claim shall be reviewed by the Retirement Committee or its delegate.
8.2 Denial of Claim
If a claim for payment of benefits is denied in full or in part, the Retirement Committee or its delegate shall provide a written notice to the Claiming Party within ninety (90) days setting forth: (a) the specific reasons for denial; (b) any additional material or information necessary to perfect the claim; (c) an explanation of why such material or information is necessary; and (d) an explanation of the steps to be taken for a review of the denial. A claim shall be deemed denied if the Retirement Committee or its delegate does not take any action within the ninety (90) day period for making an initial claim decision.
8.3 Review of Denied Claim
If the Claiming Party desires review of a denied claim, the Claiming Party shall notify the Retirement Committee or its delegate in writing within sixty (60) days after receipt of the written notice of denial. As part of such written request, the Claiming Party may request a review of the Plan document or other relevant, non-privileged documents, may submit any written issues and comments, and may request an extension of time for such written submission of issues and comments.
8.4 Decision upon Review of Denied Claim
The decision on the review of the denied claim shall be rendered by the Retirement Committee or its delegate (which may include a review subcommittee) within sixty (60) days after receipt of the request for review. The decision shall be in writing and shall state the specific reasons for the decision, including reference to specific provisions of the Plan on which the decision is based. With prior notice to the Claiming Party, the reviewing authority may invoke an extension of 60 additional days to review the claim.
24
ARTICLE IX
MISCELLANEOUS
9.1 Unsecured General Creditor
Participants and their Beneficiaries, heirs, successors, and assigns shall have no legal or equitable rights, claims, or interests in any specific property or assets of the Company or any Participating Employer. No assets of the Company or a Participating Employer shall be held in any way as collateral security for the fulfilling of the obligations of the Company under this Plan. Any and all of the Companys and Participating Employers assets shall be, and remain, the general unpledged, unrestricted assets of the Company or Participating Employers, as applicable. The Companys obligation under the Plan shall be merely that of an unfunded and unsecured promise of the Company to pay money in the future, and the rights of the Participants and Beneficiaries shall be no greater than those of unsecured general creditors.
9.2 Restriction Against Assignment
The Company shall pay all amounts payable hereunder only to the person or persons designated by the Plan and not to any other person or entity. No part of a Participants Account shall be liable for the debts, contracts, or engagements of any Participant, his or her Beneficiary, or successors in interest, nor shall a Participants Account be subject to execution by levy, attachment, or garnishment or by any other legal or equitable proceeding, nor shall any such person have any right to alienate, anticipate, commute, pledge, encumber, or assign any benefits or payments hereunder in any manner whatsoever. If any Participant, Beneficiary or successor in interest is adjudicated bankrupt or purports to anticipate, alienate, sell, transfer, assign, pledge, encumber or charge any distribution or payment from the Plan, voluntarily or involuntarily, the Retirement Committee, in its discretion, may cancel such distribution or payment (or any part thereof) to or for the benefit of such Participant, Beneficiary or successor in interest in such manner as the Retirement Committee shall direct.
9.3 Withholding
There shall be withheld from each payment made under the Plan all taxes, which are required to be withheld by the Company in respect to such payment. The Company shall have the right to reduce any payment by the amount of cash sufficient to provide the amount of said taxes.
9.4 Amendment, Modification, Suspension or Termination
The Retirement Committee may amend, modify, suspend or terminate the Plan in whole or in part, except that no amendment, modification, suspension or termination shall have any retroactive effect to reduce any vested amounts allocated to a Participants Account, provided that a termination or suspension of the Plan or any Plan amendment or modification that will significantly increase costs to the Company shall be approved by the Board. In the event that this Plan is terminated, the timing of the disposition of the amounts credited to a Participants
25
Account shall occur in accordance with Section 6.1 or 6.2, whichever is applicable, subject to earlier distribution at the discretion of the Retirement Committee to the extent that earlier distribution would not result in imposition of additional tax under Code Section 409A.
9.5 Governing Law
This Plan shall be construed, governed and administered in accordance with the laws of the State of Oregon, except to the extent pre-empted by federal law.
9.6 Entire Agreement
This Plan document constitutes the entire agreement of the parties with respect to deferred compensation. Only the Retirement Committee is authorized to construe and interpret this Plan. No employee or agent of the Company or a Participating Employer is authorized to modify or amend the terms of this Plan, or to make promises or to commit the Company or Participating Employers to provide additional benefits or other benefits not expressly provided for in this Plan document. In the event of conflict between this Plan document and any other oral or written communication regarding the Plan, this Plan document shall be controlling.
9.7 Receipt or Release
Any payment to a Participant or the Participants Beneficiary in accordance with the provisions of the Plan shall, to the extent thereof, be in full satisfaction of all claims against the Retirement Committee, the Company, and the Participating Employers. The Retirement Committee may require such Participant or Beneficiary, as a condition precedent to such payment, to execute a receipt and release to such effect.
9.8 Payments on Behalf of Persons Under Incapacity
In the event that any amount becomes payable under the Plan to a person who, in the sole judgment of the Retirement Committee, is considered by reason of physical or mental condition to be unable to give a valid receipt therefore, the Retirement Committee may direct that such payment be made to any person found by the Retirement Committee, in its sole judgment, to have assumed the care of such person. Any payment made pursuant to such determination shall constitute a full release and discharge of the Retirement Committee, the Company, and the Participating Employers.
9.9 No Employment Rights
Participation in this Plan shall not confer upon any person any right to be employed by the Company or a Participating Employer or any other right not expressly provided hereunder.
9.10 Headings, etc. Not Part of Agreement
Headings and subheadings in this Plan are inserted for convenience of reference only and are not to be considered in the construction of the provisions hereof.
26
9.11 Tax Liabilities from Plan
If, due to a change in applicable law or regulations or enforcement activity by the Internal Revenue Service, all or any portion of a Participants benefit under this Plan generates a state or federal income tax liability to the Participant prior to receipt, the provision or provisions of the Plan that would generate such taxation shall be considered null and void to the extent, and only to the extent, necessary to avoid the tax liability. If, notwithstanding the actions taken to avoid the tax liability, a tax liability (including a tax liability under Code Section 409A) is generated before a Participant is eligible to receive a Plan benefit, the Retirement Committee may, in its discretion, order a distribution of funds sufficient to meet such liability (including additions to tax, penalties and interest). The Retirement Committees instructions shall provide for a distribution to the Participant of immediately available funds in an amount equal to that Participants federal, state and local tax liability associated with such taxation, which liability shall be measured by using that Participants then current highest federal, state and local marginal tax rate, plus the rates or amounts for the applicable additions to tax, penalties and interest. At the discretion of the Company, this distribution may or may not include an additional amount to gross up the tax liability distribution to include all applicable taxes on the tax liability distribution and the grossed up amount. The tax liability distribution (including gross-up, if any) shall be made within 90 days after the date when the Retirement Committee orders the distribution. Such a distribution shall reduce the benefits to be paid under Article VI of the Plan.
IN WITNESS WHEREOF, the Company has caused this document to be executed by its duly authorized officer effective as of this first day of November, 2007.
NIKE, INC. | ||
By: | /s/ ROBERT W. WOODRUFF | |
Title: | VP/Treasurer |
27
NIKE, INC. DEFERRED COMPENSATION PLAN
(2008 RESTATEMENT)
APPENDIX I
Transition Rules Under Section 409A of the Internal Revenue Code
Nike has elected to use the following transition rules to comply with Section 409A of the Internal Revenue Code of 1986, as amended.
(1) Deferral Elections for 2005 Plan Year :
On or before March 15, 2005, a Participant could elect to defer Compensation for services performed during the 2005 Plan Year, provided that the amounts to which the deferral election relates had not been paid or made available at the time of the election. For the 2005 Plan Year only, a Participant could irrevocably elect at any time during the 2005 Plan Year to reduce the percentage to be deferred from Salary, Incentive Payments, and Fees earned in the remainder of the 2005 Plan Year to zero.
The transition rules relied upon were Q&A 20 and 21 of IRS Notice 2005-1.
(2) Change in Form of Payment During 2005 Plan Year :
During the 2005 Plan Year only, a Participant was permitted to change his or her form of distribution, provided that his or her change was filed with the Retirement Committee at least one year prior to his or her Payment Commencement Date. A Participant was not required to postpone the affected distribution for five years from the original payment date.
The transition rule relied upon was Q&A 19(c) of IRS Notice 2005-1.
(3) Change in Scheduled Withdrawal Date During 2005 Plan Year :
During the 2005 Plan Year, a Participant was permitted, at least one year prior to a Scheduled Withdrawal date, to revoke his or her Scheduled Withdrawal election in favor of a later Scheduled Withdrawal date. The five-year minimum postponement period did not apply to postponement elections made on or before December 31, 2005.
The transition rule relied upon was Q&A 19(c) of IRS Notice 2005-1.
(4) November 2006 Deferral Elections for Long Term Incentive Payments :
If a Participant made an election during the Annual Election Period in November 2005 to defer Long Term Incentive Payments anticipated to be made in August 2007, the Participant was permitted during the Annual Election Period in November 2006 to make an election to defer an additional amount of the Long Term Incentive Payment for August 2007. However, a
28
Participant was not permitted to decrease or cancel his or her prior deferral election with respect to Long Term Incentive Payments, except as provided in the case of an unforeseeable financial emergency.
Also, during the Annual Election Period in November 2006, a Participant was permitted to change the time and/or form of distribution for the Long Term Incentive Payments that were subject to a deferral election made in November 2005 (and that were credited to the Participants Account in August 2007). This election applied only to amounts that would not otherwise be payable in 2006 and could not cause an amount to be paid in 2006 that would not otherwise be payable in 2006.
The transition rule relied upon was Section 3.02 of IRS Notice 2006-79.
(5) November 2007 Deferral Elections for Long Term Incentive Payments :
During the November 2007 Annual Election Period, a Participant may make a deferral election for the following Long Term Incentive Payments (as defined in Section 1.2(z) of the Plan):
Long Term Incentive Payment for Performance Period Ending |
Anticipated Long Term Incentive Payment Date |
|
May 31, 2008 |
August 2008 | |
May 31, 2009 |
August 2009 | |
May 31, 2010 |
August 2010 |
The transition rules relied upon are Q&A 22 of IRS Notice 2005-1 and Section 3.02 of IRS Notice 2006-79.
In addition, at the November 2007 Annual Election Period, a Participant may make a deferral election with respect to Long Term Incentive Payments for the performance period beginning June 1, 2008 and ending May 31, 2011, under the general timing rule for deferral elections under Treas. Reg. § 1.409A-2(a)(3).
(6) November 2007 Deferral Elections for Performance Sharing Plan (PSP) payments :
During the November 2007 Annual Election Period, a Participant may make a deferral election for bonus attributable to the PSP period beginning June 1, 2007 and ending May 31, 2008.
The transition rule relied upon is Section 3.02 of IRS Notice 2006-79.
(7) November 2007 Payment Elections for Restoration Amounts Contributed in 2008 :
During the November 2007 Annual Election Period, a Participant may designate a time and form of payment of the Restoration Amount (if any) that will be contributed to his or her Account in August 2008 (attributable to the Profit Sharing Plan plan year ended May 31, 2008), without regard to the deferral timing rules under Code Section 409A.
The transition rule relied upon is Section 3.02 of IRS Notice 2006-79.
29
Exhibit 10.19
Emp I.D. # 18355
Start Date.
Hiring Manager: Mark Parker
COVENANT NOT TO COMPETE
AND NON-DISCLOSURE AGREEMENT
PARTIES :
Trevor Edwards (EMPLOYEE)
and
NIKE, Inc., and its parent, divisions,
subsidiaries and affiliates. (NIKE):
RECITALS :
A. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment or upon the EMPLOYEEs advancement with NIKE and is a condition of appointment as a corporate officer.
B. Over the course of EMPLOYEEs employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop confidential information peculiar to NIKEs business and not generally known to the public as defined below (Protected Information). It is anticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.
C. The nature of NIKEs business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE and be difficult to measure.
D. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKEs detriment anywhere in the world.
AGREEMENT :
In consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:
1. Covenant Not to Compete .
(a) Competition Restriction . During EMPLOYEEs employment by NIKE, under the terms of any employment contract or otherwise, and for 1 year thereafter, (the Restriction Period), EMPLOYEE will not directly or indirectly, own, manage,
COVENANT NOT TO COMPETE AND
NON-DISCLOSURE AGREEMENT - Page 1
Revised 6/12/00
control, or participate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other business which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a Competitor). By way of illustration only , examples of NIKE competitors include, but are not limited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics, Saucony, New Balance, Ralph Lauren/Polo Sport, B.U.M, FUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Foot lockers), Sports Authority, Columbia Sportswear, Wilson, Mizuno, Callaway Golf and Titleist. This provision is subject to NIKEs option to waive all or any portion of the Restriction Period as more specifically provided below.
(b) Extension of Time . In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other action, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEEs breach. In the event EMPLOYEE receives such additional compensation after any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written request by NIKE.
(c) Waiver of Non-Compete . NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the Restriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has been waived.
(d) Additional Consideration . As additional consideration for the covenant not to compete described above, should NIKE terminate EMPLOYEEs employment and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one hundred percent (100%) of EMPLOYEEs last monthly base salary while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly severance payment equal to fifty percent (50%) of EMPLOYEEs last monthly
COVENANT NOT TO COMPETE AND
NON-DISCLOSURE AGREEMENT - Page 2
Revised 6/12/00
base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional consideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with NIKEs payroll practices.
2. Subsequent Employer . EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEEs new employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever located and regardless of whether such employer is a competitor of NIKE.
3. Non-Disclosure Agreement .
(a) Protected Information Defined . Protected Information shall mean all proprietary information, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing, Protected Information includes information relating to NIKEs research and development activities, its intellectual property and the filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation, manufacturing processes and methods, products, and personnel information.
(b) Excluded Information . Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of their personal portfolio copies of the employees original artwork and designs, provided the artwork or designs have become part of the public domain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and convincing evidence.
(c) Employees Obligations . During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEEs employment with NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE. Specifically, but not by way of limitation,
COVENANT NOT TO COMPETE AND
NON-DISCLOSURE AGREEMENT - Page 3
Revised 6/12/00
EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.
4. Return of Protected Information . At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings, digital files, or other media containing Protected Information, and all copies thereof, then in EMPLOYEEs possession or under EMPLOYEEs control.
5. Unauthorized Use . During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if EMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such incident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any payment under Paragraph 1(d) of this Agreement.
6. Non-Recruitment . During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or indirectly , solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a written agreement or is at will.
7. Accounting of Profits . EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE pursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which NIKE may be entitled at law or in equity.
8. General Provisions .
(a) Survival . This Agreement shall continue in effect after the termination of EMPLOYEEs employment, regardless of the reason for termination.
COVENANT NOT TO COMPETE AND
NON-DISCLOSURE AGREEMENT - Page 4
Revised 6/12/00
(b) Waiver . No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to therein.
(c) Severability . Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.
(d) Applicable Law/Jurisdiction . This Agreement, and EMPLOYEEs employment hereunder, shall be construed according to the laws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.
EMPLOYEE |
NIKE, Inc. |
|||||||
/s/ Trevor Edwards | By | /s/ Mark G. Parker | ||||||
Name: |
Mark Parker |
|||||||
DATE | 11/14/02 | Title: | President Nike Brand |
COVENANT NOT TO COMPETE AND
NON-DISCLOSURE AGREEMENT - Page 5
Revised 6/12/00
EXHIBIT 12.1
NIKE, INC. COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
Year Ended May 31, | |||||||||||||||
2008 | 2007 | 2006 | 2005 | 2004 | |||||||||||
(In millions) | |||||||||||||||
Net income |
$ | 1,883.4 | $ | 1,491.5 | $ | 1,392.0 | $ | 1,211.6 | $ | 945.6 | |||||
Income taxes |
619.5 | 708.4 | 749.6 | 648.2 | 504.4 | ||||||||||
Income before income taxes |
2,502.9 | 2,199.9 | 2,141.6 | 1,859.8 | 1,450.0 | ||||||||||
Add fixed charges |
|||||||||||||||
Interest expense (1) |
40.7 | 49.7 | 50.5 | 39.7 | 40.6 | ||||||||||
Interest component of leases (2) |
34.4 | 28.5 | 25.2 | 23.3 | 20.7 | ||||||||||
Total fixed charges |
75.1 | 78.2 | 75.7 | 63.0 | 61.3 | ||||||||||
Earnings before income taxes and fixed charges (3) |
$ | 2,578.0 | $ | 2,278.1 | $ | 2,217.3 | $ | 1,922.8 | $ | 1,511.3 | |||||
Ratio of earnings to total fixed charges |
34.3 | 29.1 | 29.3 | 30.5 | 24.7 | ||||||||||
(1) |
Interest expense includes interest both expensed and capitalized. |
(2) |
Interest component of leases includes one-tenth of rental expense which approximates the interest component of operating leases. |
(3) |
Earnings before income taxes and fixed charges is exclusive of capitalized interest. |
EXHIBIT 21
SUBSIDIARIES OF THE REGISTRANT
NIKE, Inc. has 130 wholly-owned subsidiaries, 20 of which operate in the United States, and 110 of which operate in foreign countries. All of the subsidiaries, except for NIKE IHM, Inc., Triax Insurance, Inc., and NIKE (Suzhou) Sports Company, Ltd. carry on the same line of business, namely the design, marketing distribution and sale of athletic and leisure footwear, apparel, accessories, and equipment. NIKE IHM, Inc., a Missouri corporation, and NIKE (Suzhou) Sports Company, Ltd., a Chinese corporation, manufacture plastics and Air-Sole shoe cushioning components. Triax Insurance, Inc., a Hawaii corporation, is a captive insurance company that insures the Company for certain risks.
EXHIBIT 31
Certification of Chief Executive Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
I, Mark G. Parker, certify that:
1. I have reviewed this annual report on Form 10-K of NIKE, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: July 28, 2008
/s/ Mark G. Parker |
Mark G. Parker Chief Executive Officer |
Certification of Chief Financial Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
I, Donald W. Blair, certify that:
1. I have reviewed this annual report on Form 10-K of NIKE, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: July 28, 2008
/s/ Donald W. Blair |
Donald W. Blair Chief Financial Officer |
EXHIBIT 32
Pursuant to 18 U.S.C. Section 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the following certifications are being made to accompany the Registrants annual report on Form 10-K for
Certification of Chief Executive Officer
________________________________
Pursuant to 18 U.S.C. Section 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of NIKE, Inc. (the Company) hereby certifies, to such officers knowledge, that:
(i) the Annual Report on Form 10-K of the Company for the fiscal year ended May 31, 2008 (the Report) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and
(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: July 28, 2008
/s/ Mark G. Parker |
Mark G. Parker |
Chief Executive Officer |
Pursuant to 18 U.S.C. Section 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the following certifications are being made to accompany the Registrants annual report on Form 10-K for the fiscal year ended May 31, 2008.
Certification of Chief Financial Officer
________________________________
Pursuant to 18 U.S.C. Section 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of NIKE, Inc. (the Company) hereby certifies, to such officers knowledge, that:
(i) the Annual Report on Form 10-K of the Company for the fiscal year ended May 31, 2008 (the Report) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and
(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: July 28, 2008
/s/ Donald W. Blair |
Donald W. Blair |
Chief Financial Officer |