exv10w4



 






Exhibit 10.4




REGISTRATION RIGHTS AGREEMENT




     This Registration Rights Agreement (this “Agreement”), dated as of January 30, 2006,
is made by and between USG Corporation, a Delaware corporation (as debtor in possession and a
reorganized debtor, as applicable, the “Company”), and Berkshire Hathaway Inc., a Delaware
corporation (the “Investor”).



RECITALS




     A. In connection with the consummation of the transactions contemplated by that certain Equity
Commitment Agreement dated as of January 30, 2006 (the “Equity Commitment Agreement”) by
and between the Company and the Investor, the Investor may acquire shares of common stock, par
value $0.10 per share, of the Company (the “Common Stock”) in accordance with the
provisions of the Equity Commitment Agreement (such shares, the “Investor Shares”).



     B. In consideration of the Investor’s commitment to purchase, or to cause its designee to
purchase, the Investor Shares pursuant to and on the terms and conditions set forth in the Equity
Commitment Agreement, the Company has agreed to enter into a registration rights agreement with
respect to certain securities held by Investor and certain of its Affiliates.



AGREEMENTS




     NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements contained
herein and in the Equity Commitment Agreement, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:



Article I. Definitions




     For purposes of this Agreement, the following terms have the following meanings:



     “Affiliate”: As defined in Rule 12b-2 under the Exchange Act.



     “Blackout Period”: Any period during which, in accordance with Article IV,
the Company is not required to effect the filing of a Registration Statement or is entitled to
postpone the preparation, filing or effectiveness or suspend the effectiveness of a Registration
Statement.



     “Business Day”: Any day, other than a Saturday or Sunday, on which national banking
institutions in New York, New York, are open.



     “Company”: As defined in the introductory paragraph hereof.



     “Exchange Act”: The Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations of the SEC thereunder.



 









 





     “Filing Date”: (a) With respect to a Registration Statement to be filed on Form S-1
(or any applicable successor form), not later than 90 days after receipt by the Company of a
request for such Registration Statement and (b) with respect to a Registration Statement to be
filed on Form S-3 (or any applicable successor form), not later than 60 days after receipt by the
Company of a request for such Registration Statement.



     “Free Writing Prospectus”: A free writing prospectus as defined in Rule 405 under the
Securities Act.



     “Holders”: The Investor or any member of the Restricted Group (as defined in the
Shareholder’s Agreement) that is or becomes the owner of Registrable Securities.



     “Indemnified Party”: As defined in Section 6.3.



     “Indemnifying Party”: As defined in Section 6.3.



     “Issuer Free Writing Prospectus”: An issuer free writing prospectus as defined in
Rule 433 under the Securities Act.



     “Losses”: As defined in Section 6.1.



     “Other Holders”: Any Person having rights to participate in a registration of the
Company’s securities.



     “Permitted Free Writing Prospectus”: As defined in Article VII.



     “Person”: Any individual, corporation, general or limited partnership, limited
liability company, joint venture, trust or other entity or association, including without
limitation any governmental authority.



     “Piggyback Notice”: As defined in Section 3.1.



     “Piggyback Registration”: As defined in Section 3.1.



     “Prospectus”: The prospectus included in the applicable Registration Statement, as
supplemented by any and all prospectus supplements and as amended by any and all amendments
(including post-effective amendments) and including all material incorporated by reference or
deemed to be incorporated by reference in such Prospectus.



     “Registrable Securities”: (a) Any shares of Common Stock held by any of the Holders
now or at any time in the future and (b) any securities paid, issued or distributed in respect of
any such shares by way of stock dividend, stock split or distribution, or in connection with a
combination of shares, recapitalization, reorganization, merger or consolidation, or otherwise;
provided, however, that as to any Registrable Securities, such securities will irrevocably cease to
constitute Registrable Securities upon the earliest to occur of: (i) the date on which the
securities are disposed of pursuant to an



2









 







effective registration statement under the Securities Act; (ii) the date on which the
securities are distributed to the public pursuant to Rule 144 (or any successor provision) under
the Securities Act; (iii) the date on which the securities may be freely sold publicly without
registration under the Securities Act; (iv) the date on which the securities have been transferred
to any Person other than a Holder; (v) the date on which the securities cease to be outstanding;
and (vi) the seventh anniversary of the first day of the Standstill Period (as defined in the
Shareholder’s Agreement); provided, that this subsection (vi) shall not apply with respect to the
Investor Additional Shares (as defined in the Equity Commitment Agreement) held by the Holders if
such Investor Additional Shares exceed 1% of the then-outstanding Common Stock.



     “Registration Expenses”: As defined in Section 5.4(a).



     “Registration Statement”: Any registration statement of the Company under the
Securities Act that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the related Prospectus, all amendments and supplements to such registration
statement (including post-effective amendments), and all exhibits and all materials incorporated by
reference or deemed to be incorporated by reference in such registration statement.



     “Required Period”: With respect to a “shelf registration” requested pursuant to
Section 2.1(b), two years following the first day of effectiveness of such Registration
Statement, and with respect to any other Registration Statement, 90 days following the first day of
effectiveness of such Registration Statement.



     “Rule 144”: Rule 144 promulgated under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.



     “SEC”: The United States Securities and Exchange Commission and any successor United
States federal agency or governmental authority having similar powers.



     “Securities Act”: The Securities Act of 1933, as amended, or any successor statute,
and the rules and regulations of the SEC thereunder.



     “Shareholder’s Agreement”: That certain Shareholder’s Agreement dated as of January
30, 2006 by and between the Company and the Investor.



     “Underwritten Registration” or “Underwritten Offering”: A registration in
which securities of the Company are sold to an underwriter for reoffering to the public.



Article II. Demand Registration




     2.1 Right to Demand Registration.



          (a) At any time and from time to time, any Holder or group of Holders representing at least
75% of all Registrable Securities may request in writing that the



3









 







Company effect the registration of all or part of such Holder’s or Holders’ Registrable
Securities with the SEC under and in accordance with the provisions of the Securities Act (which
written request will specify (i) the then current name and address of such Holder or Holders, (ii)
the aggregate number of shares of Registrable Securities requested to be registered, (iii) the
total number of shares of Common Stock then held by such Holder or Holders, and (iv) the intended
means of distribution). The Company will file a Registration Statement covering such Holder’s or
Holders’ Registrable Securities requested to be registered as promptly as practicable (and, in any
event, by the applicable Filing Date) after receipt of such request; provided, however, that the
Company will not be required to take any action pursuant to this Article II:




     (A) if prior to the date of such request, the Company has effected three
registrations pursuant to this Article II;




     (B) if within the 12-month period preceding such request the Company has
effected either (1) two registrations pursuant to this Article II or (2) one
registration pursuant to this Article II and a registration statement of
the Company under the Securities Act has been declared effective within the 12-month
period preceding such request and at least 10% of the then-outstanding Registrable
Securities were entitled pursuant to the terms of this Agreement to be included in
such registration statement;




     (C) if a Registration Statement is effective at the time such request is made
and such Registration Statement may be utilized for the offering and sale of the
Registrable Securities requested to be registered;




     (D) in the case of an Underwritten Offering, unless the Registrable Securities
requested to be registered (1) have an aggregate then-current market value of $100
million or more (before deducting underwriting discounts and commission) or (2)
constitute all of the then-outstanding Registrable Securities held by Holders; or




     (E) during the pendency of any Blackout Period.



          (b) If a Holder or Holders request that the Company effect a registration pursuant to this
Section 2.1 and the Company is at such time eligible to use Form S-3, the Holder or Holders
making such request may specify that the requested registration be a “shelf registration” for an
offering on a delayed or continuous basis pursuant to Rule 415 under the Securities Act.



     2.2 Effective Demand Registrations.



          (a) The Company may satisfy its obligations under Section 2.1 by amending (to the
extent permitted by applicable law) any registration statement previously filed by the Company
under the Securities Act so that such amended registration statement will permit the disposition
(in accordance with the intended methods of disposition specified as aforesaid) of all of the
Registrable Securities for



4









 







which a demand for registration has been properly made under Section 2.1. If the
Company so amends a previously filed registration statement, it will be deemed to have effected a
registration for purposes of Section 2.1; provided that the date such registration
statement is amended pursuant to this Section 2.2(a) shall be the “the first day of
effectiveness” of such registration statement for purposes of determining the Required Period with
respect to such registration statement.



          (b) A registration requested pursuant to Section 2.1 will not be deemed to be effected
by the Company for purposes of Section 2.1 if it has not been declared effective by the SEC
or become effective in accordance with the Securities Act and kept effective as contemplated by
Section 2.3.



     2.3 Continuous Effectiveness of Registration Statement.



          (a) The Company will use its reasonable efforts to keep a Registration Statement that has
become effective as contemplated by this Article II continuously effective, and not subject
to any stop order, injunction or other similar order or requirement of the SEC, until the earlier
of (a) the expiration of the Required Period (subject to extension pursuant to Section
2.3(b) or Section 5.3) and (b) the date on which all Registrable Securities covered by
such Registration Statement (i) have been disposed of pursuant to such Registration Statement or
(ii) cease to be Registrable Securities; provided, however, that in no event will such period
expire prior to the expiration of the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 promulgated thereunder.



          (b) In the event of any stop order, injunction or other similar order or requirement of the
SEC relating to any Registration Statement, the Required Period for such Registration Statement
will be extended by the number of days during which such stop order, injunction or similar order or
requirement is in effect.



     2.4 Underwritten Demand Registration.



          (a) In the event that a registration requested pursuant to Section 2.1 is to be an
Underwritten Registration, the Company shall in its reasonable discretion and with the consent of
the Investor (which consent shall not be unreasonably withheld) select an investment banking firm
of national standing to be the managing underwriter for the Underwritten Offering relating thereto.
All Holders proposing to distribute their securities through an Underwritten Offering agree to
enter into an underwriting agreement with the underwriters, provided that the underwriting
agreement is in customary form and reasonably acceptable to the Holders of a majority of the
Registrable Securities to be included in the Underwritten Offering.



          (b) If so requested (pursuant to a timely notice) by the managing underwriter for the
Underwritten Offering relating thereto, the Company will agree not to effect any underwritten
public sale or distribution of any securities that are the same as, or similar to, the Registrable
Securities, or any securities convertible into, or exchangeable or exercisable for, any securities
of the Company that are the same as,



5









 







or similar to, the Registrable Securities, during a period specified by the managing
underwriter not to exceed 30 days.



     2.5 Priority on Demand Registrations. No securities to be sold for the account of any
Person other than a Holder (including the Company) shall be included in a registration pursuant to
Section 2.1 if, in the case that such registration is to be an Underwritten Registration,
the managing underwriter of the Underwritten Offering relating thereto advises the Holders (or, in
the case that such registration is not to be an Underwritten Registration, the Holders requesting
registration determine in good faith) that the total amount of Registrable Securities requested to
be registered, together with such other securities that the Company and any Other Holders propose
to include in such offering is such as to adversely affect the success of such offering, then the
Company will include in such registration all Registrable Securities requested to be included
therein, up to the full amount that, in the view of such managing underwriter or such Holders
requesting registration, as the case may be, can be sold without adversely affecting the success of
such offering, before including any securities of any Person (including the Company) other than the
Holder(s) making such request.



     2.6 Revocation of Demand Registration. Holders of at least a majority of the
Registrable Securities to be included in a Registration Statement pursuant to Section 2.1
may, at any time prior to the effective date of the Registration Statement relating to such
registration, revoke their request to have Registrable Securities included therein by providing a
written notice to the Company. In the event such Holders of Registrable Securities revoke such
request, either (a) the Holders of Registrable Securities who revoke such request shall reimburse
the Company for all of its out-of-pocket expenses incurred in the preparation, filing and
processing of the Registration Statement or (b) the requested registration that has been revoked
will be deemed to have been effected for purposes of Section 2.1.



Article III. Piggyback Registration




     3.1 Right to Piggyback. If at any time, and from time to time, the Company proposes
to file a registration statement under the Securities Act with respect to an offering of any class
of equity securities (other than a registration statement (a) on Form S-8 or any successor form
thereto, (b) on Form S-4 or any successor form thereto relating solely to the sale of securities to
employees, directors, officers, consultants or advisors of the Company or its Affiliates pursuant
to a stock option, stock purchase or similar benefit plan or (c) relating solely to a transaction
under Rule 145 under the Securities Act), whether or not for its own account, on a form that would
permit registration of Registrable Securities for sale to the public under the Securities Act, then
the Company will give written notice (the “Piggyback Notice”) of such proposed filing to
the Holders at least 10 Business Days before the anticipated filing date. Such notice will include
the number and class of equity securities proposed to be registered, the proposed date of filing of
such registration statement, any proposed means of distribution of such equity securities, any
proposed managing underwriter of such equity securities and a good faith estimate by the Company of
the proposed maximum offering price of such equity securities as such price is proposed to appear
on the facing page of



6









 







such registration statement, and will offer the Holders the opportunity to register such
amount of Registrable Securities as each Holder may request on the same terms and conditions as the
registration of the Company’s or Other Holders’ securities, as the case may be (a “Piggyback
Registration”). The Company will include in each Piggyback Registration all Registrable
Securities for which the Company has received written requests for inclusion within 5 Business Days
after delivery of the Piggyback Notice, subject to Section 3.2.



     3.2 Priority on Piggyback Registrations.



          (a) If the Piggyback Registration is an Underwritten Offering, the Company will cause the
managing underwriter of that proposed offering to permit the Holders that have requested
Registrable Securities to be included in the Piggyback Registration to include all such Registrable
Securities on the same terms and conditions as any similar securities, if any, of the Company.
Notwithstanding the foregoing, if the managing underwriter of such Underwritten Offering advises
the Company and the selling Holders that, in its view, the total amount of securities that the
Company, such Holders and any Other Holders propose to include in such offering is such as to
adversely affect the success of such Underwritten Offering, then:




     (i) if such Piggyback Registration is a primary registration by the Company for its own
account, the Company will include in such Piggyback Registration: (A) first, all securities
to be offered by the Company; (B) second, (1) if Registrable Securities constitute 10% or
more of the outstanding securities of any class of equity securities of the Company, up to
the full amount of securities requested to be included in such Piggyback Registration by the
Holders, or (2) if Registrable Securities constitute less than 10% of the outstanding
securities of any class of equity securities of the Company, up to the full amount of
securities requested to be included in such Piggyback Registration by the Holders and any
Other Holders having registration rights on a pari passu basis, allocated pro rata among
such holders, on the basis of the amount of securities requested to be included therein by
each such holder; and (C) third, up to the full amount of securities requested to be
included in such Piggyback Registration by any Other Holders in accordance with the
priorities, if any, then existing among the Company and the Other Holders so that the total
amount of securities to be included in such Underwritten Offering is the full amount that,
in the view of such managing underwriter, can be sold without adversely affecting the
success of such Underwritten Offering; and




     (ii) if such Piggyback Registration is an underwritten secondary registration for the
account of holders of securities of the Company, the Company will include in such
registration: (A) first, all securities of the Persons exercising “demand” registration
rights requested to be included therein; (B) second, up to the full amount of securities
proposed to be included in the registration by the Company, (C) third, up to the full amount
of securities requested to be included in such Piggyback Registration by the Holders and any
Other Holders having registration rights on a pari passu basis, allocated pro rata among
such holders,



7









 







on the basis of the amount of securities requested to be included therein by each such
holder; and (D) fourth, up to the full amount of securities requested to be included in such
Piggyback Registration by the Other Holders in accordance with the priorities, if any, then
existing among the Company and the Other Holders so that the total amount of securities to
be included in such Underwritten Offering is the full amount that, in the view of such
managing underwriter, can be sold without adversely affecting the success of such
Underwritten Offering.



          (b) If so requested (pursuant to a timely notice) by the managing underwriter in any
Underwritten Offering, the Holders participating in such Underwritten Offering will agree not to
effect any public sale or distribution (or any other type of sale as the managing underwriter
reasonably determines is appropriate in order to not adversely affect the Underwritten Offering) of
any such Registrable Securities, including a sale pursuant to Rule 144 (but excluding any
Registrable Securities included in such Underwritten Offering), during the 10 days prior to, and
during a period specified by the managing underwriter not to exceed 90 days (or such additional
period as the managing underwriter reasonably determines is appropriate in order to not adversely
affect the Underwritten Offering) following, the closing date of such Underwritten Offering. In
the event of such a request, the Company may impose, during such period, appropriate stop-transfer
instructions with respect to the Registrable Securities subject to such restrictions.



     3.3 Withdrawal of Piggyback Registration.



          (a) If at any time after giving the Piggyback Notice and prior to the effective date of the
Registration Statement filed in connection with the Piggyback Registration, the Company determines
for any reason not to register or to delay the Piggyback Registration, the Company may, at its
election, give notice of its determination to all Holders, and in the case of a determination not
to register, will be relieved of its obligation to register any Registrable Securities in
connection with the abandoned Piggyback Registration, without prejudice, provided, however, that
such Registration Statement will not be counted for purposes of Section 2.1.



          (b) Any Holder of Registrable Securities requesting to be included in a Piggyback Registration
may withdraw its request for inclusion by giving written notice to the Company of its intention to
withdraw from that registration, provided, however, that (i) the Holder’s request be made in
writing and (ii) the withdrawal will be irrevocable and, after making the withdrawal, a Holder will
no longer have any right to include its Registrable Securities in that Piggyback Registration.



          (c) An election by the Company to withdraw a Piggyback Registration under this Section
3.3 shall not be deemed to be a breach of the Company’s obligations with respect to such
Piggyback Registration.



     3.4 Most-Favored-Nations for Piggyback Registration. If the Company grants any Person
any rights with respect to the registration of any shares of equity securities of the Company or
any securities convertible or exercisable into shares of any equity



8









 







securities of the Company that are more favorable to such Person than the rights of the
Holders set forth in this Agreement, the Company shall grant to the Holders the rights granted to
such other Person.



Article IV. Blackout Period




     4.1 Demand Blackout. Notwithstanding anything contained in Article II to the
contrary, if (a) at any time during which Holders may request a registration pursuant to
Section 2.1, the Company files or proposes to file a registration statement with respect to
an offering of equity securities of the Company for its own account and (b) with reasonable prior
notice (i) the Company (in the case of an offering that is not an Underwritten Offering) advises
the Holders that the Company has determined in good faith that a sale or distribution of
Registrable Securities would adversely affect such offering or (ii) the managing underwriter, if
any, advises the Company (in which case the Company will notify the Holders) that a sale or
distribution of Registrable Securities would adversely affect such offering, then the Company will
not be obligated to effect the initial filing of a Registration Statement pursuant to Section
2.1 beginning the 10 days prior to the date the Company in good faith estimates will be the
date of the filing of, and ending on the date which is 90 days following the effective date of,
such registration statement.



     4.2 Demand and Piggyback Blackout. Notwithstanding anything contained in Articles
II or III to the contrary, if the Board of Directors of the Company determines in good
faith that the registration and distribution of Registrable Securities (a) would materially impede,
delay or interfere with any financing, acquisition, corporate reorganization or other significant
transaction, or any negotiations, discussions or pending proposals with respect thereto, involving
the Company or any of its subsidiaries or (b) would require disclosure of non-public material
information, the disclosure of which would materially and adversely affect the Company, the Company
will promptly give the Holders notice of such determination and will be entitled to postpone the
preparation, filing or effectiveness or suspend the effectiveness of a Registration Statement for a
reasonable period of time not to exceed 90 days.



     4.3 Blackout Period Limits. Notwithstanding anything contained in this Article
IV to the contrary, in no event will the number of days included in all Blackout Periods during
any consecutive 12-month period exceed an aggregate of 120 days and in no event will the Company be
entitled to postpone the preparation, filing or effectiveness or suspend the effectiveness of a
Registration Statement pursuant to this Article IV unless it postpones or suspends during
the Blackout Period the effectiveness of any registration statements required pursuant to the
registration rights of the Other Holders.



Article V. Procedures and Expenses




     5.1 Registration Procedures. In connection with the Company’s registration
obligations pursuant to Articles II and III, the Company will use its reasonable
efforts to effect such registrations to permit the sale of Registrable Securities by a Holder in



9









 







accordance with the intended method or methods of disposition thereof, and pursuant thereto
the Company will as promptly as reasonably practicable:



          (a) prepare and file with the SEC a Registration Statement on an appropriate form under the
Securities Act available for the sale of the Registrable Securities by the selling Holders in
accordance with the intended method or methods of distribution thereof; provided, however, that the
Company will, before filing, furnish to each selling Holder and the managing underwriter, if any,
copies of the Registration Statement or Prospectus proposed to be filed and provide each selling
Holder, the managing underwriter, if any, and their counsel with a reasonable opportunity to
comment on such Registration Statement or Prospectus;



          (b) furnish, at its expense, to the selling Holders such number of conformed copies of the
Registration Statement and each amendment thereto, of the Prospectus and each supplemental thereto,
and of such other documents as the selling Holders reasonably may request from time to time;



          (c) subject to Section 2.3, prepare and file with the SEC any amendments and
post-effective amendments to the Registration Statement as may be necessary and any supplements to
the Prospectus as may be required or appropriate, in the view of the Company and its counsel, by
the rules, regulations or instructions applicable to the registration form used by the Company or
by the Securities Act to keep the Registration Statement effective until the earlier of (i) such
time as all Registrable Securities covered by the Registration Statement are sold in accordance
with the intended plan of distribution set forth in the Registration Statement or supplement to the
Prospectus and (ii) the termination of the Required Period (giving effect to any extensions thereof
pursuant to Section 2.3(b) or Section 5.3);



          (d) promptly following its actual knowledge thereof, notify the selling Holders and the
managing underwriter, if any:




     (i) when a Registration Statement, Prospectus, Issuer Free Writing Prospectus or any
supplement or amendment has been filed and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective;




     (ii) of any request by the SEC or any other governmental authority for amendments or
supplements to a Registration Statement, Prospectus or Issuer Free Writing Prospectus or for
additional information;




     (iii) of the issuance by the SEC or any other governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose;




     (iv) of the receipt by the Company of any written notification with respect to the
suspension of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose;



10









 






     (v) of the occurrence of any event which makes any statement made in the Registration
Statement or Prospectus or any Issuer Free Writing Prospectus untrue in any material respect
or which requires the making of any changes in a Registration Statement, Prospectus, Issuer
Free Writing Prospectus or other documents so that it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; and




     (vi) of the Company’s reasonable determination that a post-effective amendment to a
Registration Statement is necessary;



          (e) use its reasonable efforts to prevent the issuance or obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the
qualification or exemption from qualification of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable date;



          (f) prior to any public offering of Registrable Securities, register or qualify and cooperate
with the selling Holders, the managing underwriter, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the securities or blue sky
laws of such jurisdictions within the United States as the selling Holders or the managing
underwriter reasonably requests in writing and maintain each registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is required to be kept
effective; provided, however, that the Company will not be required to qualify generally to do
business in any jurisdiction in which it is not then so qualified or take any action which would
subject it to general service of process or material taxation in any jurisdiction in which it is
not then so subject;



          (g) as promptly as practicable upon the occurrence of any event contemplated by Sections
5.1(d)(v) or 5.1(d)(vi) hereof, prepare (and furnish, at its expense, to the selling
Holders a reasonable number of copies of) a supplement or post-effective amendment to each
Registration Statement or a supplement to the related Prospectus (including by means of an Issuer
Free Writing Prospectus), or file any other required document so that, as thereafter delivered to
the purchasers of the Registrable Securities being sold thereunder, such Prospectus or Issuer Free
Writing Prospectus will not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not
misleading;



          (h) in the case of an Underwritten Offering, enter into customary agreements (including an
underwriting agreement) and take other actions reasonably necessary to expedite the disposition of
the Registrable Securities, and in connection therewith:




     (i) use its reasonable efforts to obtain opinions of counsel to the Company (such
counsel being reasonably satisfactory to the managing



11









 







underwriter, if any) and updates thereof covering matters customarily covered in
opinions of counsel requested in Underwritten Offerings, addressed to each selling Holder
and the managing underwriter;




     (ii) use its reasonable efforts to obtain “comfort” letters and updates thereof from
the independent certified public accountants of the Company addressed to each selling Holder
and the managing underwriter, if any, covering matters customarily covered in “comfort”
letters in connection with Underwritten Offerings; and




     (iii) provide officers’ certificates and other customary closing documents reasonably
requested by the managing underwriter;



          (i) upon reasonable notice and at reasonable times during normal business hours, make
available for inspection by a representative of each selling Holder and the managing underwriter,
if any, participating in any disposition of Registrable Securities and any attorney or accountant
retained by any selling Holder or any underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the officers, directors and employees
of the Company to supply all information reasonably requested by any such representative,
underwriter, attorney or accountant in connection with the Registration Statement;



          (j) use its reasonable efforts to comply with all applicable rules and regulations of the SEC
relating to such registration and make generally available to its security holders earning
statements satisfying the provisions of Section 11(a) of the Securities Act, provided that the
Company will be deemed to have complied with this Section 5.1(j) if it has satisfied the
provisions of Rule 158 under the Securities Act (or any similar rule promulgated under the
Securities Act);



          (k) use its reasonable efforts to cause all Registrable Securities to be listed on the New
York Stock Exchange; and



          (l) use its reasonable efforts to procure the cooperation of the Company’s transfer agent in
settling any offering or sale of Registrable Securities.



     5.2 Information from Holders.



          (a) Each selling Holder that has requested inclusion of its Registrable Securities in any
Registration Statement shall furnish to the Company such information regarding such Holder and its
plan and method of distribution of such Registrable Securities as the Company may, from time to
time, reasonably request in writing. The Company may refuse to proceed with the registration of
such Holder’s Registrable Securities if such Holder unreasonably fails to furnish such information
within a reasonable time after receiving such request.



          (b) Each selling Holder will promptly (i) following its actual knowledge thereof, notify the
Company of the occurrence of any event that makes any statement made in a Registration Statement,
Prospectus, Issuer Free Writing Prospectus or other



12









 







Free Writing Prospectus regarding such selling Holder untrue in any material respect or that
requires the making of any changes in a Registration Statement, Prospectus or Free Writing
Prospectus so that, in such regard, it will not contain any untrue statement of a material fact or
omit any material fact required to be stated therein or necessary to make the statements not
misleading and (ii) provide the Company with such information as may be required to enable the
Company to prepare a supplement or post-effective amendment to any such Registration Statement or a
supplement to such Prospectus or Free Writing Prospectus.



          (c) With respect to any Registration Statement for an Underwritten Offering, the inclusion of
a Holder’s Registrable Securities therein will be conditioned, at the managing underwriter’s
request, upon the execution and delivery by such Holder of an underwriting agreement in form, scope
and substance as is customary in Underwritten Offerings.



     5.3 Suspension of Disposition.



          (a) Each selling Holder will be deemed to have agreed that, upon receipt of any notice from
the Company of the occurrence of any event of the type described in Sections 5.1(d)(ii),
5.1(d)(iii), 5.1(d)(iv), 5.1(d)(v) or 5.1(d)(vi), such Holder will
discontinue disposition of Registrable Securities covered by a Registration Statement, Prospectus
or Free Writing Prospectus and suspend use of such Prospectus or Free Writing Prospectus until such
Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5.1(g) or until it is advised by the Company that the use of the applicable
Prospectus or Free Writing Prospectus may be resumed and have received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by reference in such
Prospectus or Free Writing Prospectus. In the event the Company shall give any such notice, the
period of time for which a Registration Statement must remain effective as set forth in Section
2.3 will be extended by the number of days during the time period from and including the date
of the giving of such notice to and including the date when each selling Holder of Registrable
Securities covered by such Registration Statement has received (i) the copies of the supplemented
or amended Prospectus or Issuer Free Writing Prospectus contemplated by Section 5.1(g) or
(ii) the advice referenced in this Section 5.3(a).



          (b) Each selling Holder will be deemed to have agreed that, upon receipt of any notice from
the Company of the happening of an event specified in Section 4.2, such selling Holder will
discontinue disposition of Registrable Securities covered by a Registration Statement, Prospectus
or Free Writing Prospectus and suspend use of such Prospectus or Free Writing Prospectus until the
earlier to occur of the Holder’s receipt of (i) copies of a supplemented or amended Prospectus or
Issuer Free Writing Prospectus describing the event giving rise to the aforementioned suspension
and (ii) (A) notice from the Company that the use of the applicable Prospectus or Issuer Free
Writing Prospectus may be resumed and (B) copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or Issuer Free Writing
Prospectus; provided, however, that in no event will the number of days during which the offer and
sale of Registrable



13









 







Securities is discontinued pursuant to this Section 5.3(b) during any consecutive
12-month period, together with any other Blackout Periods in such 12-month period, exceed an
aggregate of 120 days. In the event the Company gives any such notice, the period of time for
which a Registration Statement must remain effective as set forth in Section 2.3 will be
extended by the number of days during the time period from and including the date of giving of such
notice to and including the date when each selling Holder of Registrable Securities covered by such
Registration Statement receives (i) a supplemented or amended Prospectus or Issuer Free Writing
Prospectus describing the event giving rise to the aforementioned suspension or (ii) notice from
the Company that use of the applicable Prospectus or Issuer Free Writing Prospectus may resume.



     5.4 Registration Expenses.



          (a) All fees and expenses incurred by the Company in complying with Articles II and
III and Section 5.1 (“Registration Expenses”) will be borne by the Company.
These fees and expenses will include without limitation (i) all registration, filing and
qualification fees, (ii) printing, duplicating and delivery expenses, (iii) fees and disbursements
of counsel for the Company, (iv) fees and expenses of complying with state securities or “blue sky”
laws (including the fees and expenses of any local counsel in connection therewith), (v) fees and
disbursements of all independent certified public accountants referred to in Section
5.1(h)(ii) (including the expenses of any special audit and “comfort” letters required by or
incident to such performance) and (vi) fees and expenses in connection with listing the Registrable
Securities on the New York Stock Exchange.



          (b) The Company will also reimburse or pay, as the case may be, the standard fees and
out-of-pocket expenses of one law firm retained by all Holders, considered collectively, relating
to any action taken pursuant to Article II within 10 days of presentation of a detailed
invoice approved by the Investor.



          (c) Notwithstanding anything contained herein to the contrary, all underwriting fees,
discounts, selling commissions and stock transfer taxes applicable to the sale of Registrable
Securities will be borne by the Holder owning such Registrable Securities.



Article VI. Indemnification




     6.1 Indemnification by the Company. The Company will indemnify and hold harmless, to
the fullest extent permitted by law, each Holder owning Registrable Securities registered pursuant
to this Agreement, such Holder’s Affiliates, officers, directors, managers, partners, stockholders,
employers, advisors, agents and other representatives, and each Person who controls such Holder
(within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) from and
against all losses, claims, damages, liabilities, costs (including without limitation reasonable
attorneys’ fees and disbursements) and expenses (collectively, “Losses”) arising out of or
based upon any untrue or alleged untrue statement of a material fact contained or incorporated by
reference in any Registration Statement, Prospectus or preliminary



14









 







prospectus or Issuer Free Writing Prospectus, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as the same are based solely upon
information furnished in writing to the Company by or on behalf of such Holder expressly for use
therein; provided, however, that the Company will not be liable to any Holder to the extent that
any Losses arise out of or are based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any preliminary prospectus if either (a) such untrue statement
or alleged untrue statement or such omission or alleged omission was corrected in a Prospectus or
Issuer Free Writing Prospectus provided to such Holder prior to the confirmation of the sale of
Registrable Securities to the Person asserting the claim from which such Losses arise, and such
Holder thereafter failed to send or deliver a copy of the Prospectus or Issuer Free Writing
Prospectus with or prior to the delivery of written confirmation of such sale in any case in which
such delivery is required under the Securities Act or (b) such untrue statement or alleged untrue
statement or omission or alleged omission was corrected in an amendment or supplement to the
Prospectus or Issuer Free Writing Prospectus previously furnished by or on behalf of the Company
and such Prospectus or Issuer Free Writing Prospectus as so amended or supplemented was provided to
such Holder prior to the confirmation of the sale of Registrable Securities to the Person asserting
the claim from such Losses arise, and such Holder thereafter failed to send or deliver such
Prospectus or Issuer Free Writing Prospectus as so amended or supplemented with or prior to the
delivery of written confirmation of such sale in any case in which such delivery is required under
the Securities Act. The indemnity provided in this Section 6.1 shall survive any transfer
or disposal of the Registrable Securities by the Holders.



     6.2 Indemnification by Holders. In the event of the filing of any registration
statement relating to the registration of any Registrable Securities, each Holder (severally and
not jointly) will indemnify and hold harmless, to the fullest extent permitted by law, the Company,
its Affiliates, officers, directors, managers, partners, stockholders, employers, advisors, agents
and other representatives, and each Person who controls the Company (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) from and against all Losses arising out
of or based upon any untrue or alleged untrue statement of a material fact contained or
incorporated by reference in any Registration Statement, Prospectus or preliminary prospectus or
Issuer Free Writing Prospectus, or arising out of or based upon any omission or alleged omission of
a material fact required to be stated therein or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in conformity with
information so furnished in writing by or on behalf of such Holder to the Company expressly for use
in such Registration Statement, Prospectus or preliminary prospectus or Issuer Free Writing
Prospectus. In no event will the liability of any Holder be greater in amount than the dollar
amount of the net proceeds (after any discounts, commissions, transfer taxes, fees and expenses)
received by such Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.



15









 





     6.3 Conduct of Indemnification Proceedings. If any Person becomes entitled to
indemnity hereunder (an “Indemnified Party”), such Indemnified Party will give prompt
notice to the party from which indemnity is sought (the “Indemnifying Party”) of any claim
or of the commencement of any action or proceeding with respect to which the Indemnified Party
seeks indemnification or contribution pursuant hereto; provided, however, that the failure to so
notify the Indemnifying Party will not relieve the Indemnifying Party from any obligation or
liability except to the extent that the Indemnifying Party has been prejudiced materially by such
failure. If such an action or proceeding is brought against the Indemnified Party, the
Indemnifying Party will be entitled to participate therein and, to the extent it may elect by
written notice delivered to the Indemnified Party promptly after receiving the notice referred to
in the immediately preceding sentence, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnified Party. Notwithstanding the foregoing, the Indemnified Party will
have the right to employ its own counsel in any such case, but the fees and expenses of that
counsel will be at the expense of the Indemnified Party unless (a) the employment of the counsel
has been authorized in writing by the Indemnifying Party, (b) the Indemnifying Party has not
employed counsel to take charge of such action or proceeding within a reasonable time after notice
of commencement thereof or (c) the Indemnified Party reasonably concludes, based upon the opinion
of counsel, that there are defenses or actions available to it which are different from or in
addition to those available to the Indemnifying Party which, if the Indemnifying Party and the
Indemnified Party were to be represented by the same counsel, could result in a conflict of
interest for such counsel or materially prejudice the prosecution of defenses or actions available
to the Indemnified Party. If any of the events specified in clause (a), (b) or (c) of the
immediately preceding sentence are applicable, then the reasonable fees and expenses of separate
counsel for the Indemnified Party will be borne by the Indemnifying Party; provided, however, that
in no event will the Indemnifying Party be liable for the fees and expenses of more than one
separate firm for all Indemnified Parties. If, in any case, the Indemnified Party employs separate
counsel, the Indemnifying Party will not have the right to direct the defense of the action or
proceeding on behalf of the Indemnified Party. All fees and expenses required to be paid to the
Indemnified Party pursuant to this Article VI will be paid periodically during the course
of the investigation or defense, as and when reasonably itemized bills therefor are delivered to
the Indemnifying Party in respect of any particular Loss that is incurred. Notwithstanding
anything contained in this Section 6.3 to the contrary, an Indemnifying Party will not be
liable for the settlement of any action or proceeding effected without its prior written consent.
The Indemnifying Party will not, without the consent of the Indemnified Party (which consent will
not be unreasonably withheld), consent to entry of any judgment or enter into any settlement or
otherwise seek to terminate any action or proceeding in which any Indemnified Party is or could be
a party and as to which indemnification or contribution could be sought by such Indemnified Party
under this Article VI, unless such judgment, settlement or other termination provides
solely for the payment of money and includes as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release, in form and substance reasonably
satisfactory to the Indemnified Party, from all liability in respect of such claim or litigation
for which such Indemnified Party would be entitled to indemnification hereunder.



16









 





     6.4 Contribution, etc.



          (a) If the indemnification provided for in this Article VI is unavailable to an
Indemnified Party under Sections 6.1 or 6.2 in respect of any Losses or is
insufficient to hold the Indemnified Party harmless, then each applicable Indemnifying Party
(severally and not jointly), in lieu of indemnifying the Indemnified Party, will contribute to the
amount paid or payable by the Indemnified Party as a result of the Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party or Indemnifying Parties, on the
one hand, and the Indemnified Party, on the other hand, in connection with the actions, statements
or omissions that resulted in the Losses as well as any other relevant equitable considerations.
The relative fault of the Indemnifying Party or Indemnifying Parties, on the one hand, and the
Indemnified Party, on the other hand, will be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission of a material fact, has been taken or made by, or related to
information supplied by, the Indemnifying Party or Indemnifying Parties or the Indemnified Party,
and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such action, statement or omission.



          (b) The parties hereto agree that it would not be just and equitable if contribution pursuant
to this Section 6.4 were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding anything contained in this Section 6.4 to
the contrary, an Indemnifying Party that is a selling Holder will not be required to contribute any
amount in excess of the amount by which the total net proceeds (after any discounts, commissions,
transfer taxes, fees and expenses) received by such Holder upon the sale of the Registrable
Securities exceeds the amount of any damages which such selling Holder has, in the aggregate,
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation.



Article VII. Free Writing Prospectuses




     Each Holder represents that it has not prepared or had prepared on its behalf or used or
referred to, and agrees that it will not prepare or have prepared on its behalf or use or refer to,
any Free Writing Prospectus, and has not distributed and will not distribute any written materials
in connection with the offer or sale of Common Stock without the prior written consent of the
Company and, in connection with any Underwritten Offering, the underwriters. Any such Free Writing
Prospectus consented to by the Company and the underwriters, as the case may be, is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company represents and agrees
that it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as
an Issuer Free Writing Prospectus, including in respect of timely filing with the SEC, legending
and record keeping.



17









 





Article VIII. Rule 144




     To the extent the following make available the benefits of certain rules and regulations of
the SEC which may permit the sale of registered securities to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to (a) make and keep public information
available as those terms are understand and defined in Rule 144; (b) use its reasonable efforts to
file with the SEC in a timely manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act; (c) furnish to any Holder promptly upon written request a
written statement by the Company as to its compliance with the reporting requirements of Rule 144
and of the Securities Act and the Exchange Act, a copy of the most recent annual or quarterly
report of the Company and such other reports and documents as any Holder reasonably may request in
availing itself of any rule or regulation of the SEC allowing such Holder to sell any Registrable
Securities without registration; and (d) take such other actions as may be reasonably required by
the Company’s transfer agent to consummate any distribution of Registrable Securities in accordance
with the terms and conditions of Rule 144.



Article IX. Participation in Underwritten Offerings




     Notwithstanding anything contained herein to the contrary, no Person may participate in any
Underwritten Offering pursuant to a registration hereunder unless that Person (a) agrees to sell
its securities on the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.



Article X. Miscellaneous




     10.1 Notices. All notices and other communications in connection with this Agreement
will be in writing and will be deemed given (and will be deemed to have been duly given upon
receipt) if delivered personally, sent via facsimile (with confirmation), mailed by registered or
certified mail (return receipt requested) or delivered by an express courier (with confirmation) to
the parties at the following addresses (or at such other address for a party as will be specified
by like notice):



          (a) If to the Company:




USG Corporation

125 South Franklin Street

Chicago, Illinois 60606-4647

Attention: Stanley L. Ferguson

Facsimile: (312) 606-5316



18









 






with a copy to:




Jones Day

222 E. 41st Street

New York, New York 10017

Attention: Robert A. Profusek

Facsimile: (212) 755-7306



          (b) If to the Investor:




Berkshire Hathaway Inc.

1440 Kiewit Plaza

Omaha, Nebraska 68131

Attention: Marc D. Hamburg

Facsimile: (402) 346-3375




with a copy to:




Munger, Tolles & Olson LLP

355 South Grand Avenue

35th Floor

Los Angeles, California 90071-1560

Attention: Robert E. Denham

Facsimile: (213) 687-3702



          (c) If to any Holder (other than the Investor), to such Holder’s address on file with the
Company’s transfer agent.



     10.2 Confidentiality. Each Holder will, and will cause its officers, directors,
employees, legal counsel, accountants, financial advisors and other representatives to, hold in
confidence any material nonpublic information received by them pursuant to this Agreement,
including without limitation any material nonpublic information included in any Registration
Statement or Prospectus proposed to be filed with the SEC (until such Registration Statement or
Prospectus has been filed) or provided pursuant to Section 5.1(i). This Section
10.2 shall not apply to any information which (a) is or becomes generally available to the
public, (b) was already in the Holder’s possession from a non-confidential source prior to its
disclosure by the Company, (c) is or becomes available to the Holder on a non-confidential basis
from a source other than the Company, provided that such source is not known by the Holder to be
bound by confidentiality obligations or (d) is required to be disclosed by law.



     10.3 Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement will be assigned by any of the parties
(whether by operation of law or otherwise) without the prior written consent of the other party.
This Agreement will be binding upon, inure to the benefit of and be enforceable by each of the
parties and their respective successors and assigns. This Agreement (including the documents and
instruments referred to in this Agreement) is



19









 







not intended to and does not confer upon any person other than the parties hereto any rights
or remedies under this Agreement.



     10.4 Entire Agreement. This Agreement (including the documents and instruments
referred to in this Agreement) constitutes the entire agreement of the parties and supersedes all
prior agreements and understandings, whether written or oral, between the parties with respect to
the subject matter of this Agreement, except that the parties hereto acknowledge that any
confidentiality agreements heretofore executed among the parties shall continue in full force and
effect.



     10.5 Waivers and Amendments. This Agreement may be amended, modified, superseded,
cancelled, renewed or extended, and the terms and conditions of this Agreement may be waived, only
by a written instrument signed by the parties or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right, power or privilege pursuant
to this Agreement will operate as a waiver thereof, nor will any waiver on the part of any party of
any right, power or privilege pursuant to this Agreement, nor will any single or partial exercise
of any right, power or privilege pursuant to this Agreement, preclude any other or further exercise
thereof or the exercise of any other right, power or privilege pursuant to this Agreement. The
rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any
rights or remedies which any party otherwise may have at law or in equity.



     10.6 Counterparts. This Agreement may be executed in any number of counterparts, all
of which will be considered one and the same agreement and will become effective when counterparts
have been signed by each of the parties and delivered to the other party (including via facsimile
or other electronic transmission), it being understood that each party need not sign the same
counterpart.



     10.7 Governing Law; Venue. THIS AGREEMENT WILL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY APPLICABLE
CONFLICT OF LAWS PRINCIPLES. EACH PARTY TO THIS AGREEMENT IRREVOCABLY SUBMITS TO THE JURISDICTION
OF, AND VENUE IN, THE DISTRICT COURTS OF THE UNITED STATES SITTING IN THE STATE OF DELAWARE OR THE
COURTS OF THE STATE OF DELAWARE AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS.



     10.8 Headings. The headings in this Agreement are for reference purposes only and
will not in any way affect the meaning or interpretation of this Agreement.



     10.9 Specific Performance. The parties acknowledge and agree that any breach of the
terms of this Agreement would give rise to irreparable harm for which money damages would not be an
adequate remedy, and, accordingly, the parties agree that, in addition to any other remedies, each
will be entitled to enforce the terms of this Agreement by a decree of specific performance without
the necessity of proving the inadequacy of money damages as a remedy and without the necessity of
posting bond.



20









 





     10.10 Termination. Notwithstanding anything to the contrary contained herein, this
Agreement will terminate simultaneously with the termination of the Equity Commitment Agreement if
the Rights Offering (as defined in the Equity Commitment Agreement) is not consummated prior to
such termination of the Equity Commitment Agreement.



[Signature Page Follows]




21









 





     IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 	USG CORPORATION

 	 
	 	By:  	/s/ William C. Foote
 	 
	 	 	Name:  	William C. Foote 	 
	 	 	Title:  	Chairman and Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	BERKSHIRE HATHAWAY INC.

 	 
	 	By:  	/s/ Marc D. Hamburg
 	 
	 	 	Name:  	Marc D. Hamburg 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page of Registration Rights Agreement]