Recovering Attorney. wrote:
Here is a Nike agreement with ROFR language. Granted it's with ASU and not an individual but it seems to track what they say in the complaint.
http://media.oregonlive.com/pac10/other/Arizona-State-Nike-Sponsorship.pdf
I'm quoting the ROFR language to highlight an odd glitch:
"(c) During the Term and for a period of ninety (90) days thereafter, NIKE shall have the right of first refusal for Product Supply/Endorsement, as follows:
.
If UNIVERSITY receives any bona fide third party offer at any time on or after the Exclusive Negotiating End Date with respect to any Product Supply/Endorsement, UNIVERSITY shall submit to NIKE in writing the specific terms of such bona fide third party offer. NIKE shall have fifteen (15) business days from the date of its receipt of such third party offer to notify UNIVERSITY in writing if it will enter into a new contract with UNIVERSITY on terms no less favorable to UNIVERSITY than the material, measurable and matchable terms of such third party offer. If NIKE so notifies UNIVERSITY within such 15-day period, UNIVERSITY shall enter into a contract with NIKE on the terms of NIKE's offer.
If NIKE fails or declines to better the material, measurable and matchable terms of such third party offer within such 15-day period, UNIVERSITY may thereafter consummate an agreement with such third party on the terms of the offer made to UNIVERSITY."
I find it inexplicable why the bolded language shifts Nike's obligation from one of offering terms "no less favorable" (as one would expect) to a burden of actually "better[ing]" the third party terms.
It would be amusing if the same glitch appears in the Berian contract and Nike gets called on it.