EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10
THIS
EXECUTIVE EMPLOYMENT AGREEMENT
(this
“Agreement”)
is
made and entered into between Nucor Corporation, a Delaware corporation, on
behalf of itself and its affiliates (collectively “Nucor”),
and
XXXX X. XXXX (“Executive”).
WHEREAS,
Executive has heretofore been employed as an at-will employee of Nucor without
the benefit of a written employment agreement; and
WHEREAS,
Nucor has offered Executive a promotion to the position of Executive Vice
President effective September 30, 2007, and Executive has accepted the
promotion; and
WHEREAS,
Nucor’s promotion of Executive entitles Executive to receive substantial
compensation and benefits that Executive did not have prior to his promotion;
and
WHEREAS,
Executive agrees and acknowledges that in his new position he will acquire
greater access to and knowledge of Nucor’s trade secrets and confidential
information which Executive did not have prior to his promotion,
and
WHEREAS,
Nucor agrees to continue to employ Executive as an at-will employee in
consideration for Executive’s agreement to the various restrictions set forth
herein; and
NOW,
THEREFORE, in consideration for the promises and mutual agreements contained
herein, the parties agree as follows:
1. Employment.
Nucor
agrees to employ Executive in the position of Executive Vice President, and
Executive agrees to accept continued employment in this position, subject to
the
terms and conditions set forth in this Agreement, including the confidentiality
and non-competition provisions which Executive acknowledges were discussed
in
detail prior to and made an express condition of his promotion to Executive
Vice
President.
2. Compensation
and Benefits During Employment.
Nucor
will provide the following compensation and benefits to Executive:
(a) Nucor
will pay Executive a base salary of $350,600 per year, paid not less frequently
than monthly in accordance with Nucor’s normal payroll practices, subject to
withholding by Nucor and other deductions as required by law. Executive’s base
salary is subject to adjustment up or down by Nucor’s Board of Directors at its
sole discretion and without notice to Executive.
(b) Executive
will be eligible for bonuses based on the senior officer annual and long term
incentive compensation plans, as modified from time to time by, and in the
sole
discretion of, the Board of Directors of Nucor.
(c) Executive
will be eligible for those employee benefits that are generally made available
by Nucor to its employees.
(d) Executive
shall be eligible to participate in the senior officer equity incentive
compensation plans, as modified from time to time by, and in the sole discretion
of, the Board of Directors.
3. Compensation
Following Termination.
(a) From
the
date of Executive’s termination, whether by Executive or Nucor for any or no
reason, Nucor will pay Executive a monthly amount for twenty-four (24) months
following Executive’s termination. The monthly amount will be computed using the
following formula: the amount of Executive’s highest base salary level during
the prior twelve (12) months multiplied by 3.36 and the product divided by
twelve (12). The payments shall be made at the end of each month following
Executive’s termination on Nucor’s regular monthly payroll date.
(b) In
exchange for Nucor’s promises in this Section 3 and other good and valuable
consideration, Executive agrees to strictly abide by the terms of Sections
8
through 13 of this Agreement. If Executive fails to strictly abide by the terms
of Sections 8 through 13 of this Agreement, Nucor may, at its option, do any
or
all of the following: (i)
pursue
any legal remedies available to it (including but not limited to injunctive
relief, damages, and specific performance), and (ii)
declare
the monthly payments forfeited with respect to any month during which Executive
is in breach of this Agreement. Nucor may declare the monthly payments forfeited
if Executive is in breach of this Agreement for any portion of the month at
issue, and Executive will not be entitled to a payment for that
month.
(c) If
Executive is employed by Nucor at the time of Executive’s death, Nucor’s
obligations to make any monthly payments under this Agreement will automatically
terminate and Executive’s estate and executors will have no rights to payments
under this Agreement. If Executive dies during the first twelve months following
Executive’s termination from employment with Nucor, then Nucor will pay
Executive’s estate the monthly payments due under this Section through the end
of the twelfth (12th)
month
following Executive’s termination. If Executive dies twelve or more months after
termination of Executive’s employment with Nucor, then Nucor’s obligations to
make monthly payments under this Section will automatically terminate without
the necessity of Nucor providing written notice.
4. Duties
and Responsibilities; Best Efforts.
While
employed by Nucor, Executive shall perform such duties for and on behalf of
Nucor as may be determined and assigned to Executive from time to time by
members of Nucor’s Board of Directors. Executive shall devote his full time and
best efforts to the business and affairs of Nucor. During the term of
Executive’s employment with Nucor, Executive will not undertake other paid
employment or engage in any other business activity without prior written
consent of Nucor.
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5. Employment
at Will.
The
parties acknowledge and agree that this Agreement does not create employment
for
a definite term and that Executive’s employment with Nucor is terminable by
Nucor or Executive at any time, with or without cause and with or without
notice, unless otherwise expressly set forth in a separate written agreement
executed by Executive and Nucor after the date of this Agreement.
6. Change
in Executive’s Position.
In the
event that Nucor transfers, demotes, promotes, or otherwise changes Executive’s
compensation or position with Nucor, the restrictions and post-termination
obligations of this Agreement shall remain in full force and effect on both
parties.
7. Recognition
of Nucor’s Legitimate Interests.
Executive understands and acknowledges that Nucor and its affiliates compete
in
North America in the research, manufacture, marketing, sale and distribution
of
steel and steel products, including but not limited to flat-rolled steel, steel
shapes, structural steel, light gauge steel framing, steel plate, steel joists
and girders, steel deck, steel fasteners, metal building systems, fabricated
concrete reinforcing steel, cold finished steel, steel grating, wire and wire
mesh. As part of Executive’s employment with Nucor, Executive acknowledges he
will have access to and gain knowledge of significant secret, confidential
and
proprietary information of the full range of operations of Nucor, its
subsidiaries and affiliates. In addition, Executive will have access to training
opportunities, contact with customers and prospective customers of Nucor, it
subsidiaries and affiliates, in which capacity he is expected to develop good
relationships with such customers, and will gain intimate knowledge regarding
the products and services of Nucor, its subsidiaries and affiliates. Executive
recognizes and agrees that Nucor and its subsidiaries and affiliates have spent
and will continue to spend substantial effort, time and money in developing
relationships with their customers, that many customers are long term customers
of Nucor, and that all customers and accounts that Executive may deal with
during his employment with Nucor, including any customers and accounts acquired
for Nucor by Executive, are the customers and accounts of Nucor. Executive
acknowledges that Nucor’s competitors would obtain an unfair advantage if
Executive disclosed Nucor’s Secret Information or Confidential Information as
defined in Sections 8 and 9 to a competitor, used it on a competitor’s behalf,
or if he were able to exploit the relationships he develops as an employee
of
Nucor to solicit business on behalf of a competitor.
8. Covenant
Regarding Nucor’s Secret Information.
Executive recognizes and agrees that he will have continued access to certain
sensitive and confidential information of Nucor, its subsidiaries and affiliates
(a)
that is
not generally known in the steel business, which would be difficult for others
to acquire or duplicate without improper means, (b)
that
Nucor strives to keep secret, and (c)
from
which Nucor derives substantial commercial benefit because of the fact that
it
is not generally known (the “Secret
Information”).
As
used in this Agreement, Nucor’s Secret Information includes, without
limitation: (i)
Nucor’s
process of developing and producing raw material, and designing and
manufacturing steel and iron products; (ii)
Nucor’s
process for treating, processing or fabricating steel and iron products;
(iii)
Nucor’s
non-public financial data, strategic business plans, competitor analysis, sales
and marketing data, and proprietary margin, pricing, and cost data; and
(iv)
any
other information or data which meets the definition of “trade secrets” under
applicable law. Executive agrees that unless he is expressly authorized by Nucor
in writing, Executive will not use or disclose or allow to be used or disclosed
Nucor’s Secret Information. This covenant shall survive until the Secret
Information is generally known in the industry through no act or omission of
the
Executive or until Nucor knowingly authorizes the disclosure of or discloses
the
Secret Information, without any limitations on use or confidentiality. Executive
acknowledges that he did not have knowledge of Nucor’s Secret Information prior
to his employment with Nucor and that the Secret Information does not include
Executive’s general skills and know-how.
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9. Agreement
to Maintain Confidentiality..
(a) As
used
in this Agreement, “Confidential
Information”
shall
include, without limitation, financial and budgetary information and strategies;
plant design, specifications, and layouts; equipment design, specifications,
and
layouts; product design and specifications; manufacturing processes, procedures,
and specifications; data processing or other computer programs; research and
development projects; marketing information and strategies; customer lists;
vendor lists; information about customer preferences and buying patterns;
information about prospective customers, vendors, or business opportunities;
information about Nucor’s costs and the pricing structure used in sales to
customers; information about Nucor’s overall corporate business strategy; and
technological innovations used in Nucor’s business, to the extent that such
information does not fall within the definition of Secret Information. For
purposes of this Agreement, information shall not be deemed to be Confidential
Information to the extent that the information (i)
is in
the public domain, or hereafter becomes generally known or available through
no
action or omission on the part of Executive; (ii)
is
furnished by Nucor to any person other than a subsidiary or affiliate of Nucor,
without restriction on disclosure; (iii)
becomes
known to the Executive from a source other than Nucor, its subsidiaries or
affiliates, without a breach of this Agreement or any other agreement with
Nucor
and without any restriction on disclosure; or (iv)
is the
general knowledge or skill of the Executive acquired prior to his employment
with Nucor.
(b) Except
as
otherwise provided in this Agreement, during Executive’s employment with Nucor
and at all times after the termination of Executive’s employment, Executive
covenants and agrees to treat as confidential and not to negligently or
intentionally disclose, and to use only for the advancement of the interests
of
Nucor, all Confidential Information submitted to Executive or received,
compiled, developed, designed, produced, accessed, or otherwise discovered
by
the Executive from time to time while employed by Nucor. Executive will not
disclose or divulge the Confidential Information to any person, entity, firm
or
company whatsoever or use the Confidential Information for Executive’s own
benefit or for the benefit of any person, entity, firm or company other than
Nucor. This restriction will apply throughout the world; provided,
however,
that if
the restrictions of this Paragraph when applied to any specific piece of
Confidential Information would prevent the Executive from using his general
knowledge or skills in competition with Nucor or would otherwise substantially
restrict the Executive’s ability to fairly compete with Nucor, then as to that
piece of Confidential Information only, the scope of this restriction will
apply
only for the time and only within the Restricted Territory set forth in Section
10 of this Agreement.
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(c) Executive
specifically acknowledges that the Confidential Information, whether reduced
to
writing or maintained in the mind or memory of Executive, and whether compiled
or created by Executive, Nucor, or any of its affiliates or customers, derives
independent economic value from not being readily known to or ascertainable
by
proper means by others who could obtain economic value from the disclosure
or
use of the Confidential Information. Executive also acknowledges that reasonable
efforts have been put forth by Nucor to maintain the secrecy of the Confidential
Information, that the Confidential Information is and will remain the sole
property of Nucor or any of its affiliates or customers, as the case may be,
and
that any retention and/or use of Confidential Information during or after the
termination of Executive’s employment with Nucor (except in the regular course
of performing his duties hereunder) will constitute a misappropriation of the
Confidential Information belonging to Nucor.
10. Noncompetition.
(a) Executive
hereby agrees that for the duration of Executive’s employment with Nucor, and
for a period of twenty-four (24) months thereafter, Executive will NOT, within
the Restricted Territory, do any of the following:
(i) Engage
directly or indirectly (either as an owner, employee, consultant, or in any
similar capacity) in the research, development, manufacture, marketing, sale,
or
distribution of steel or steel products which are the same as or similar to
those in development, manufactured, and/or sold by Nucor on the date of
Executive’s termination; or
(ii) Engage
in
work, other than during his employment with and as authorized by Nucor, that
would inherently call on him in the fulfillment of his duties and
responsibilities to reveal, or otherwise use the Confidential Information or
Secret Information of Nucor.
(b) As
used
in this provision, “Restricted
Territory”
As
used
in this Agreement, the term “Restricted Territory” means the geographic area for
which Executive is responsible and includes, but is not limited to, the
following:
(i) All
countries in which Nucor sells its steel and steel products (as defined in
Section 6) or in which Nucor plans within twenty-four (24) months of Executive’s
termination of employment to sell such products but if such area is deemed
overbroad by a court of law, then;
(ii) North
America, but if such area is deemed overbroad by a court of law, then;
(iii) The
United States, Canada, Mexico, but if such area is deemed overbroad by a court
of law, then;
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(iv) The
contiguous United States, but if such area is deemed overbroad by a court of
law, then;
(v) The
states in the United States in which Nucor sells its steel and steel products
(as defined in Section 6), but if such area is deemed overbroad by a court
of
law, then;
(vi) Any
state
in the United States located within a six hundred mile radius of a Nucor plant
or facility, but if such area is deemed overbroad by a court of law, then;
(vii) Any
country in which Nucor has a plant or facility, but if such area is deemed
overbroad by a court of law, then;
(viii) The
states in the United States in which Nucor has a plant or facility, but if
such
area is deemed overbroad by a court of law, then;
(ix) Any
state
in the United States located within a six hundred mile radius of the locations
in which the Customers and Prospective Customers (as defined in subsections
10(e)(i) and (ii) below) are located, but if such area is deemed overbroad
by a
court of law, then;
(x) Any
state
in the United States where a Customer or Prospective Customer is located with
whom the Executive had contact or for whom Executive had responsibility for
during the six month period immediately preceding the Executive’s separation of
employment from Nucor.
(c) Executive
specifically agrees that the post-termination restrictions in this Section
will
apply to Executive regardless of whether termination of employment is initiated
by Nucor or Executive and regardless of the reason for termination of
Executive’s employment. Further, Executive acknowledges and agrees that Nucor’ s
payment of the compensation described in Section 3 is intended to compensate
Executive for the limitations on Executive’s competitive activities described in
this Section 10 for the two-year period following Executive’s employment with
Nucor regardless of the reason for termination. Thus, for example, in the event
that Nucor terminates Executive’s employment without cause, Executive expressly
agrees that the restrictions in this Section 10 will apply to Executive
notwithstanding the reasons or motivations of Nucor in terminating Executive’s
employment.
11. Nonsolicitation.
Executive hereby agrees for the period of twenty-four (24) months after
termination of his employment, Executive will not, directly or indirectly,
within the Restricted Territory, do any of the following:
(a) Solicit,
contact, or attempt to influence any Customer to limit, curtail, cancel, or
terminate any business it transacts with, or products it receives from Nucor,
its subsidiaries or affiliates;
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(b) Solicit,
contact, or attempt to influence any Prospective Customer to terminate any
business negotiations it is having with Nucor, its subsidiaries or affiliates,
or to otherwise not do business with Nucor, its subsidiaries or
affiliates;
(c) Solicit,
contact, or attempt to influence any Customer to purchase products or services
from an entity other than Nucor, its subsidiaries or affiliates, which are
the
same or substantially similar to those offered to the Customer by Nucor, its
subsidiaries or affiliates; or
(d) Solicit,
contact, or attempt to influence any Prospective Customer to purchase products
or services from an entity other than Nucor, its subsidiaries or affiliates,
which are the same or substantially similar to those offered to the Prospective
Customer by Nucor, its subsidiaries or affiliates.
(e) For
purposes of Section 10 of this Agreement and this Section 11, and
understanding that Executive has had and will have substantial contact with
customers of Nucor, its affiliates and subsidiaries, during his employment
with
Nucor, its affiliates and subsidiaries, the following definitions shall
apply:
(i) The
term
“Customer”
shall
mean any and all customers of Nucor, its subsidiaries and affiliates, with
whom
Nucor, its subsidiaries and affiliates, is doing business at the time of or
within the two (2) years preceding Executive’s separation from Nucor’s
employ.
(ii) If
the
definition in subsection (e)(i) is found to be unreasonable with respect to
any
restriction in this Agreement to which the definition of Customer applies,
then
with regard to that restriction, the term “Customer” shall mean:
(A) Any
customer of Nucor with whom Executive had significant contact or with whom
Executive directly dealt on behalf of Nucor during the six (6) month
period preceding
Executive’s termination; or
(B) Any
customer of Nucor with whom the direct reports of Executive had significant
contact or with whom the direct reports of Executive dealt during the six (6)
month period preceding Executive’s termination; or
(C) Any
customer of Nucor, its subsidiaries or affiliates, about whom the Executive
has
obtained Secret Information or Confidential Information by virtue of his
employment with Nucor;
Provided,
however,
that
the term “Customer” shall not include any business or entity that no longer does
business with Nucor without any direct or indirect interference by Executive
or
violation of this Agreement by Executive, and that ceased doing business with
Nucor prior to any direct or indirect communication or contact by
Executive.
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(iii) The
term
“Prospective
Customer”
shall
mean any person or entity who has not yet purchased the products or services
of
Nucor, but who has been targeted or identified by Nucor as a potential user
of
the products or services of Nucor, and whom Executive or his direct reports
participated in the solicitation of or on behalf of Nucor during the six (6)
months preceding his termination.
(iv) The
term
“Nucor”
shall
mean Nucor Corporation and its subsidiaries and affiliates in existence or
planned during the course of Executive’s employment.
(v) The
term
“solicit”
shall
have the following meaning: to initiate contact for the purpose of promoting,
marketing, or selling products or services similar to those Nucor offered during
the tenure of Executive’s employment with Nucor or to accept business from
Nucor’s Customers or Prospective Customers.
12. Assignment
of Intellectual Property Rights.
(a) Executive
hereby assigns to Nucor Executive’s entire right, title and interest, including
copyrights and patents, in any idea, invention, design of a useful article
(whether the design is ornamental or otherwise), and any other work of
authorship (collectively the “Developments”),
made
or conceived during Executive’s employment by Nucor solely or jointly by
Executive, or created wholly or in part by Executive, whether or not such
Developments are patentable, copyrightable or susceptible to other forms of
protection, where the Developments: (i)
were
developed, invented, or conceived within the scope of Executive’s employment
with Nucor; (ii)
relate
to Nucor’s actual or demonstrably anticipated research or development; or
(iii)
result
from any work performed by Executive on Nucor’s behalf.
(b) The
assignment requirement in subsection (a) of this Section 12 shall not apply
to
an invention that Executive developed entirely on his own time without using
Nucor’s equipment, supplies, facilities or Secret Information or Confidential
Information except for those inventions that (i) relate to Nucor’s business or
actual or demonstrably anticipated research or development, or (ii) result
from
any work performed by Executive for Nucor.
(c) In
connection with any of the Developments assigned in subsection (a) above:
(i)
Executive will promptly disclose them to Nucor’s management; and (ii)
Executive will, on Nucor's request, promptly execute a specific assignment
of
title to Nucor or its designee, and do anything else reasonably necessary to
enable Nucor or its designee to secure a patent, copyright, or other form of
protection therefore in the United States and in any other applicable
country.
(d) Nothing
in this Section 12 is intended to waive, or shall be construed as waiving,
any
assignment of any Developments to Nucor implied by law.
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13. Antipiracy.
Executive agrees for a period of twenty-four (24) months after termination
of
his employment, Executive will not, directly or indirectly, encourage, contact,
or attempt to induce any employees of Nucor, its subsidiaries or affiliates
(a)
with whom Executive had direct contact during the last twelve (12) months of
Executive’s employment with Nucor, and (b) who are employed by Nucor, its
subsidiaries or affiliates at the time of the encouragement, contact or
attempted inducement, to end their employment relationship with Nucor, its
subsidiaries or affiliates.
14. Severability.
It is
the intention of the parties to restrict the activities of Executive only to
the
extent reasonably necessary for the protection of Nucor’s legitimate interests.
The parties specifically covenant and agree that should any of the provisions
in
this Agreement be deemed by a court of competent jurisdiction too broad for
the
protection of Nucor’s legitimate interests, the parties authorize the court to
narrow, limit or modify the restrictions herein to the extent reasonably
necessary to accomplish such purpose. In the event such limiting construction
is
impossible, such invalid or unenforceable provision shall be deemed severed
from
this Agreement and every other provision of this Agreement shall remain in
full
force and effect.
15. Enforcement.
Executive understands and agrees that any breach or threatened breach by
Executive of the provisions of Sections 8 through 13 of this Agreement shall
be
considered a material breach of this Agreement, and in the event of such a
breach or threatened breath of this Agreement, Nucor shall be entitled to pursue
any and all of its remedies under law or in equity arising out of such breach.
If Nucor pursues either a temporary restraining order or temporary injunctive
relief, then Executive waives any requirement that Nucor post a bond. Executive
further agrees that in the event of his breach of any of the provisions of
Sections 7 through 12 of this Agreement, unless otherwise prohibited by
law:
(a) Nucor
shall be (i)
released from any obligation to make any further payments to Executive (or
his
estate) under Section 3, (ii)
entitled to cancel any unexercised stock options granted under the Company’s
equity incentive plan from and after the date of this Agreement (the
“Post-Agreement
Date Option Grants”),
and
(iii)
entitled to seek other appropriate relief, including, without limitation,
repayment by the Executive of the amounts already paid under Section 3 of this
Agreement; and
(b) Executive
shall (i)
forfeit
any unexercised Post-Agreement Date Option Grants and (ii)
forfeit
and immediately return upon demand by Nucor any profit realized by Executive
from the exercise of any Post-Agreement Date Option Grants during the six (6)
month period preceding Executive’s breach of any of the provisions of Sections 8
through 13 of this Agreement.
Executive
agrees that any breach or threatened breach of Sections 8 through 13 will cause
Nucor irreparable harm which cannot be remedied through monetary damages and
the
alternative relief set forth in Section 15(a) shall not be considered an
adequate remedy for the harm Nucor would incur. Executive further agrees that
such remedies in Section 15(a) will not preclude injunctive relief.
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If
Executive breaches or threatens to breach any of the provisions of Sections
10,
11 or 13 of this Agreement and Nucor obtains an injunction, preliminary or
otherwise, ordering the Executive to adhere to the restrictive period required
by the applicable section, then the applicable restrictive period will be
extended by the number of days that have elapsed from the date of Executive’s
termination until the time the injunction is granted.
Executive
further agrees, unless otherwise prohibited by law, to pay Nucor’s attorneys’
fees and costs incurred in successfully enforcing its rights under this Section,
or in defending against any action brought by Executive or on Executive’s behalf
in violation of or under this Section in which Nucor prevails. Executive agrees
that Nucor’s actions pursuant to this Section, including, without limitation,
filing a legal action, are permissible and are not and will not be considered
by
Executive to be retaliatory. Executive further represents and acknowledges
that
in the event of the termination of Executive’s employment for any reason,
Executive’s experience and capabilities are such that Executive can obtain
employment and that enforcement of this Agreement by way of injunction will
not
prevent Executive from earning a livelihood.
16. Reasonableness
of Restrictions.
Executive has carefully considered the nature and extent of the restrictions
upon him and the rights and remedies conferred upon Nucor under Sections 10,
11,
12, 13 and 15 and hereby acknowledges and agrees that the same are reasonable
in
time and territory, are designed to eliminate competition which would otherwise
be unfair to Nucor, do not interfere with Executive’s exercise of his inherent
skill and experience, are reasonably required to protect the legitimate
interests of Nucor, and do not confer a benefit upon Nucor disproportionate
to
the detriment to Executive. Executive certifies that he has had the opportunity
to discuss this Agreement with such legal advisors as he chooses and that he
understands its provisions and has entered into this Agreement freely and
voluntarily.
17. Applicable
Law.
This
Agreement shall be interpreted, construed and governed according to the laws
of
the State of North Carolina, regardless of choice of law principles to the
contrary. Each party, for themselves and their successors and assigns, hereby
irrevocably (a)
consents to the exclusive jurisdictions of the State and Federal courts located
in the State of North Carolina; and (b)
waives
any objection to any such action based on venue or forum non
conveniens.
This
Agreement is intended, among other things, to supplement the provisions of
the
North Carolina Trade Secrets Protection Act, as amended from time to time,
and
the duties Executive owes to Nucor under the common law, including, but not
limited to, the duty of loyalty.
18. Executive
to Return Property.
Executive agrees that upon (a)
the
termination of Executive’s employment with Nucor, whether by Executive or Nucor
for any reason (with or without cause), or (b)
the
written request of Nucor, Executive (or in the event of the death or disability
of Executive, Executive’s heirs, successors, assigns and legal representatives)
shall return to Nucor any and all property of Nucor, including but not limited
to all Secret Information, Confidential Information, notes, data, tapes,
computers, lists, reference items, phones, documents, sketches, drawings,
software, product samples, rolodex cards, forms, manuals, and equipment, without
retaining any copies or summaries of such property. Executive further agrees
that to the extent Secret Information or Confidential Information are in
electronic format and in Executive’s possession, custody or control; Executive
will provide all such copies to Nucor and will not keep copies in such format
but, upon Nucor’s request, will confirm the permanent deletion
thereof.
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19. Entire
Agreement; Amendments.
This
Agreement discharges and cancels all previous agreements and constitutes the
entire agreement between the parties with regard to the subject matter hereof.
No agreements, representations, or statements of any party not contained herein
shall be binding on either party. Further, no amendment or variation of the
terms or conditions of this Agreement shall be valid unless in writing and
signed by both parties.
20. Assignability.
This
Agreement and the rights and duties created hereunder shall not be assignable
or
delegable by Executive. Nucor may, at its option and without consent of
Executive, assign its rights and duties hereunder to any successor entity or
transferee of Nucor’s assets.
21. Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of Nucor and Executive
and their respective successors, assigns, heirs and legal
representatives.
22. No
Waiver.
No
failure or delay by any party to this Agreement to enforce any right specified
in this Agreement will operate as a waiver of such right, nor will any single
or
partial exercise of a right preclude any further or later enforcement of the
right within the period of the applicable statute of limitations.
23. Compliance
with Code Section 409A.
Notwithstanding anything in this Agreement to the contrary, if any amount or
benefit that Nucor determines would constitute non-exempt “deferred
compensation” for purposes of Section 409A of the Internal Revenue Code of 1986
(the “Code”)
would
otherwise be payable or distributable under this Agreement by reason of the
Executive’s separation from service, then to the extent necessary to comply with
Code Section 409A: (i)
if the
payment or distribution is payable in a lump sum, the Executive’s right to
receive payment or distribution of such non-exempt deferred compensation will
be
delayed until the earlier of the Executive’s death or the first day of the
seventh month following the Executive’s separation from service, and
(ii)
if the
payment, distribution or benefit is payable or provided over time, the amount
of
such non-exempt deferred compensation or benefit that would otherwise be payable
or provided during the six-month period immediately following the Executive’s
separation from service will be accumulated, and the Executive’s right to
receive payment or distribution of such accumulated amount or benefit will
be
delayed until the earlier of the Executive’s death or the first day of the
seventh month following the Executive’s separation from service and paid or
provided on the earlier of such dates, without interest, and the normal payment
or distribution schedule for any remaining payments, distributions or benefits
will commence. For purposes of this Agreement, the term “separation from
service” shall be defined as provided in Code Section 409A and applicable
regulations.
11
IN
WITNESS WHEREOF, the parties have executed this Agreement on the dates specified
below.
| /s/ Xxxx X. Xxxx | |||
|
Date:
|
September 28, 2007 | ||
| NUCOR CORPORATION | |||
|
By:
|
/s/ Xxxx X. Xxxxxxxx | ||
|
Its:
|
Chief Operating Officer of Steelmaking Operations | ||
|
Date:
|
September 28, 2007 | ||
12
