Filed by Bowne Pure Compliance





Exhibit 10.2




USG CORPORATION




CHANGE IN CONTROL SEVERANCE AGREEMENT




THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”), dated as of October 1, 2008, is
made and entered into by and between USG Corporation, a Delaware corporation (the “Company”), and
                     (the “Executive”).



RECITALS:




I. The Executive is a senior executive of the Company or a Subsidiary and has made and is
expected to continue to make major contributions to the growth and financial strength of the
Company;



II. The Company recognizes that the possibility of a Change in Control (as defined below)
exists and that such possibility, and the uncertainty it may create among management, may result in
the distraction or departure of management personnel, to the detriment of the Company and its
stockholders;



III. The Company desires to assure itself of the continuity of management and desires to
establish certain minimum severance benefits for certain of its senior executives, including the
Executive, applicable in the event of a Change in Control;



IV. The Company wishes to ensure that its senior executives are not unduly distracted by the
circumstances attendant to the possibility of a Change in Control and to encourage the continued
attention and dedication of such executives, including the Executive, to their assigned duties with
the Company; and



V. The Company desires to provide additional inducement for the Executive to continue to
remain in the employ of the Company.



NOW, THEREFORE, the Company and the Executive agree as follows:




	1.	 	Certain Defined Terms. In addition to terms defined elsewhere herein, the following
terms have the following meanings when used in this Agreement with initial capital letters:






	 	(a)	 	“Base Pay” means the Executive’s annual base salary rate as in effect from time
to time.
	 
	 	(b)	 	“Board” means the Board of Directors of the Company.
	 
	 	(c)	 	“Cause” means that, prior to any termination pursuant to Section 3(b), the
Executive shall have:






	 	(i)	 	been convicted of a criminal violation involving fraud,
embezzlement or theft in connection with the Executive’s duties or in the
course of the Executive’s employment with the Company or any Subsidiary;







TIER 1 BENEFITS



 


 









 





	 	(ii)	 	committed intentional wrongful damage to tangible or intangible
property of the Company or any Subsidiary; or
	 
	 	(iii)	 	committed intentional wrongful disclosure of secret processes
or confidential information of the Company or any Subsidiary.






	 	 	 	For purposes of this Agreement, no act or failure to act on the part of the
Executive will be deemed “intentional” if it was due primarily to an error in
judgment or negligence, but will be deemed “intentional” only if done or omitted to
be done by the Executive not in good faith and without reasonable belief that the
Executive’s action or omission was in the best interest of the Company.
Notwithstanding the foregoing, the Executive will not be deemed to have been
terminated for “Cause” hereunder unless and until there shall have been delivered to
the Executive a copy of a resolution duly adopted by the affirmative vote of not
less than a majority of the Board then in office (excluding the Executive if the
Executive is then a member of the Board) at a meeting of the Board called and held
for such purpose, after reasonable notice to the Executive and an opportunity for
the Executive, together with the Executive’s counsel (if the Executive chooses to
have counsel present at such meeting), to be heard before the Board, finding that,
in the good faith opinion of the Board, the Executive had committed an act
constituting “Cause” as herein defined and specifying the particulars thereof in
reasonable detail. Nothing herein will limit the right of the Executive or the
Executive’s beneficiaries to contest the validity or propriety of any such
determination.






	 	(d)	 	“Change in Control” means the occurrence during the Term of any of the
following events:






	 	(i)	 	any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) is or becomes the
beneficial owner (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of the combined voting power of the
then-outstanding Voting Stock of the Company; provided,
however, that:






	 	(1)	 	for purposes of this Section 1(d), the
following acquisitions shall not constitute a Change in Control: (A)
any acquisition of Voting Stock of the Company directly from the
Company that is approved by a majority of the Incumbent Directors, (B)
any acquisition of Voting Stock of the Company by the Company or any
Subsidiary, (C) any acquisition of Voting Stock of the Company by the
trustee or other fiduciary holding securities under any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any Subsidiary, and (D) any acquisition of Voting Stock of the
Company by any Person pursuant to a Business Transaction that complies
with clauses (A), (B) and (C) of Section 1(d)(iii) below;




 


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	 	(2)	 	if any Person is or becomes the beneficial
owner of 20% or more of combined voting power of the then-outstanding
Voting Stock of the Company as a result of a transaction described in
clause (A) of Section 1(d)(i)(1) above and such Person thereafter
becomes the beneficial owner of any additional shares of Voting Stock
of the Company representing 1% or more of the then-outstanding Voting
Stock of the Company, other than in an acquisition directly from the
Company that is approved by a majority of the Incumbent Directors or
other than as a result of a stock dividend, stock split or similar
transaction effected by the Company in which all holders of Voting
Stock are treated equally, such subsequent acquisition shall be treated
as a Change in Control;
	 
	 	(3)	 	a Change in Control will not be deemed to have
occurred if a Person is or becomes the beneficial owner of 20% or more
of the Voting Stock of the Company as a result of a reduction in the
number of shares of Voting Stock of the Company outstanding pursuant to
a transaction or series of transactions that is approved by a majority
of the Incumbent Directors unless and until such Person thereafter
becomes the beneficial owner of any additional shares of Voting Stock
of the Company representing 1% or more of the then-outstanding Voting
Stock of the Company, other than as a result of a stock dividend, stock
split or similar transaction effected by the Company in which all
holders of Voting Stock are treated equally; and
	 
	 	(4)	 	if at least a majority of the Incumbent
Directors determine in good faith that a Person has acquired beneficial
ownership of 20% or more of the Voting Stock of the Company
inadvertently, and such Person divests as promptly as practicable but
no later than the date, if any, set by the Incumbent Board a sufficient
number of shares so that such Person beneficially owns less than 20% of
the Voting Stock of the Company, then no Change in Control shall have
occurred as a result of such Person’s acquisition; or






	 	(ii)	 	a majority of the Board ceases to be comprised of Incumbent
Directors; or
	 
	 	(iii)	 	the consummation of a reorganization, merger or consolidation,
or sale or other disposition of all or substantially all of the assets of the
Company or the acquisition of the stock or assets of another corporation, or
other transaction (each, a “Business Transaction”), unless, in each case,
immediately following such Business Transaction (A) the Voting Stock of the
Company outstanding immediately prior to such Business Transaction continues to
represent (either by remaining outstanding or by being converted into Voting
Stock of the surviving entity or any parent thereof), more than 60% of the
combined voting power of the then outstanding shares of Voting Stock of the
entity resulting from such Business Transaction (including, without limitation,




 


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	 	 	 	 an entity which as a result of
such transaction owns the Company or all or substantially all of the
Company’s assets either directly or through one or more subsidiaries), (B)
no Person (other than the Company, such entity resulting from such Business
Transaction, or any employee benefit plan (or related trust) sponsored or
maintained by the Company, any Subsidiary or such entity resulting from such
Business Transaction) beneficially owns, directly or indirectly, 20% or more
of the combined voting power of the then outstanding shares of Voting Stock
of the entity resulting from such Business Transaction, and (C) at least a
majority of the members of the Board of Directors of the entity resulting
from such Business Transaction were Incumbent Directors at the time of the
execution of the initial agreement or of the action of the Board providing
for such Business Transaction; or
	 
	 	(iv)	 	approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a Business
Transaction that complies with clauses (A), (B) and (C) of Section 1(d)(iii).






	 	 	Notwithstanding anything in this Agreement to the contrary, a Change in Control shall not be
deemed to have occurred as a result of an acquisition or the holding of Voting Stock of the
Company permitted by Section 2(a) of the Shareholder’s Agreement entered into as of January
30, 2006, by and between the Company and Berkshire Hathaway, Inc.






	 	(e)	 	“Code” means the Internal Revenue Code of 1986, as amended.
	 
	 	(f)	 	“Exchange Act” means the Securities Exchange Act of 1934, as amended.
	 
	 	(g)	 	“Good Reason” means the failure of the Company to remedy any of the following
within 10 calendar days after receipt by the Company of written notice thereof from the
Executive:






	 	(i)	 	a material diminution in the Executive’s normal duties and
responsibilities, including, but not limited to, the assignment without the
Executive’s written consent of any diminished duties and responsibilities which
are inconsistent with the Executive’s positions, duties and responsibilities
with the Company immediately prior to a Change in Control, or a materially
adverse change in the Executive’s reporting responsibilities or titles as in
effect immediately prior to the Change in Control, whether or not resulting
from an act of the Company or otherwise, or any removal of the Executive from
or any failure to re-elect the Executive to any of such positions, except in
connection with the termination of the Executive’s employment for disability,
retirement, or Cause or as a result of the Executive’s death or by the
Executive other than for Good Reason;




 


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	 	(ii)	 	if the Executive was serving as a member of the Board
immediately prior to the Change in Control, either (A) the failure to elect or
the removal of the Executive as a member of the Board of the Company (or any
successor thereto) or (B) if the Executive continues to serve as a member of
the Board of the Company (or any successor thereto) following the Change in
Control, the Company’s securities are no longer publicly traded;
provided, however, that Good Reason shall not exist if the
Executive becomes a member of the board of directors of a publicly-traded
entity that as a result of the Change in Control owns the Company or
substantially all of the Company’s assets either directly or through one or
more subsidiaries;
	 
	 	(iii)	 	a reduction by the Company in the Executive’s Base Pay as in
effect on the date hereof or as the same may be increased from time to time;
	 
	 	(iv)	 	a change in the Executive’s Target Direct Annual Compensation
that results in an aggregate decrease in such Target Direct Annual Compensation
in excess of ten percent (10%);
	 
	 	(v)	 	the Company’s requiring the Executive, without the Executive’s
written consent, to be based anywhere other than within fifty (50) miles of the
Executive’s office location immediately prior to the Change in Control, except
for required travel on the Company’s business to an extent substantially
consistent with business travel obligations immediately prior to the Change in
Control;
	 
	 	(vi)	 	the failure by the Company to continue in effect any investment
plan, retirement plan, savings plan, supplemental retirement plan, deferred
compensation plan, supplemental investment plan, life insurance plan, health
and accident plan, disability plan or other welfare benefit plan in which the
Executive was participating at the time of the Change in Control (or plans
providing the Executive with substantially similar benefits), the taking of any
action by the Company which would adversely affect the Executive’s
participation or materially reduce the Executive’s benefits or value under any
of such plans or deprive the Executive of any material fringe benefit enjoyed
by the Executive at the time of the Change in Control, or the failure by the
Company to provide the Executive with the number of paid vacation days to which
the Executive was then entitled in accordance with the Company’s normal
vacation policy in effect on the date of the Change in Control; or
	 
	 	(vii)	 	the failure by the Company to obtain the assumption of the
obligation to perform this Agreement by any successor as contemplated in
Section 11 hereof.




 


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	 	(h)	 	“Incumbent Directors” means the individuals who, as of the date of this
Agreement, are Directors of the Company and any individual becoming a Director
subsequent to the date of this Agreement whose election, nomination for election
by the Company’s stockholders, or appointment, was approved by a vote of at least
two-thirds of the then Incumbent Directors (either by a specific vote or by approval
of the proxy statement of the Company in which such person is named as a nominee for
director, without objection to such nomination); provided, however,
that an individual shall not be an Incumbent Director if such individual’s election
or appointment to the Board occurs as a result of an actual or threatened election
contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to the
election or removal of Directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board.






	 	(i)	 	“Release Agreement” means an agreement, in substantially the form customarily
used by the Company for similarly situated executives of the Company in similar
instances, pursuant to which the Executive releases, to the extent permitted by law,
all current or future claims, known or unknown, arising on or before the date of the
release against the Company, its subsidiaries and its officers.
	 
	 	(j)	 	“Severance Period” means the period of time commencing on the date of the first
occurrence of a Change in Control and continuing until the earlier of (i) the second
anniversary of the occurrence of the Change in Control, or (ii) the Executive’s death.
	 
	 	(k)	 	“Subsidiary” means a corporation, company or other entity (i) at least 50
percent of whose outstanding shares or securities (representing the right to vote for
the election of directors or other managing authority) are, or (ii) which does not have
outstanding shares or securities (as may be the case in a partnership, joint venture or
unincorporated association), but at least 50 percent of whose ownership interest
representing the right generally to make decisions for such other entity is, now or
hereafter, owned or controlled, directly or indirectly, by the Company.
	 
	 	(l)	 	“Target Annual Direct Compensation” means the sum of the Executive’s Base Pay,
target annual incentive opportunity, and the annualized value of the most recent
long-term incentive award approved by the Compensation and Organization Committee of
the Board. For purposes of measuring annualized long-term incentives, the awards shall
be measured on their date of grant using reasonable assumptions, including, but not
limited to, fair value principles such as those identified in Statement of Financial
Accounting Standards No. 123, Share-Based Payment; the value of such awards shall be
annualized over the frequency of their grant.
	 
	 	(m)	 	“Term” means the period commencing as of the date hereof and expiring on
January 1, 2011, with automatic one-year renewals thereafter unless either party
notifies the other at least 120 days before the scheduled expiration date that the Term
is not to renew; provided, however, that (i) if a Change in Control
occurs during the Term, the Term will expire on, and no sooner than, the last day of
the Severance Period; and (ii) subject to Section 3(c), if, prior to a Change in
Control, the Executive ceases for any reason to be an officer of the Company or an
employee of the Company or any Subsidiary, thereupon without further action the Term
shall be deemed to have expired and this Agreement will immediately terminate and be
of no further effect. For purposes of this Section 1(m), the Executive shall not be
deemed to have ceased to be an employee of the Company and any Subsidiary by reason
of the transfer of the Executive’s employment between the Company and any
Subsidiary, or among Subsidiaries.




 


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	 	(n)	 	“Termination Date” means (i) the date on which the Executive’s employment is
terminated by the Company or any Subsidiary or (ii) the date on which the Executive
terminates his or her employment pursuant to Section 3(b).
	 
	 	(o)	 	“Voting Stock” means at any time, the then-outstanding securities entitled to
vote generally in the election of directors of the Company.






	2.	 	Operation of Agreement. This Agreement will be effective and binding immediately
upon its execution, but, anything in this Agreement to the contrary notwithstanding, except as
provided in Section 3(c), the payments and benefits provided under this Agreement will not be
payable unless and until a Change in Control occurs. Upon the occurrence of a Change in
Control at any time during the Term, without further action, this Agreement will become
immediately operative.
	 
	3.	 	Termination Following a Change in Control.






	 	(a)	 	If a Change in Control occurs and the Executive’s employment is terminated by
the Company or a Subsidiary during the Severance Period (or pursuant to Section 3(c)),
the Executive will be entitled to the benefits provided by Section 4 unless such
termination is the result of the occurrence of one or more of the following events:






	 	(i)	 	The Executive’s death;
	 
	 	(ii)	 	The Executive’s having become unable (as determined by the
Board in good faith), with or without reasonable accommodations, to regularly
perform the Executive’s duties by reason of illness or incapacity; or
	 
	 	(iii)	 	Cause.






	 	(b)	 	In the event of the occurrence of a Change in Control, the Executive may
terminate employment with the Company and any Subsidiary during the Severance Period
for Good Reason with the right to severance compensation as provided in Section 4
regardless of whether any other reason, other than Cause, for such termination exists
or has occurred, including without limitation other employment.




 


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	 	(c)	 	Anything in this Agreement to the contrary notwithstanding, if a Change in
Control occurs and not more than 120 days prior to the date on which the Change in
Control occurs, the Executive’s employment with the Company is terminated by the
Company other than as described in Section 3(a)(i), 3(a)(ii) or 3(a)(iii),
such termination of employment will be deemed to be a termination of employment
after a Change in Control for purposes of this Agreement and, in addition, the
Company will be required to pay to the Executive in a lump sum in cash within ten
(10) business days after such Change in Control (subject to Section 4(b)), the sum
of: (1) the difference between the fair market value of a common share of the
Company and the exercise price of each outstanding stock option held by the
Executive that was forfeited as a result of the Executive’s termination of
employment multiplied by the number of shares underlying each stock option held by
the Executive that was forfeited as a result of the Executive’s termination of
employment and (2) the fair market value of a common share of the Company multiplied
by the number of shares underlying each share of restricted stock and each
performance share and other equity award held by the Executive that was forfeited as
a result of the Executive’s termination of employment. For this purpose, the “fair
market value of a common share of the Company” shall be deemed to be the price per
share paid in connection with the Change in Control.
	 
	 	(d)	 	A termination of employment pursuant to Section 3(a), 3(b) or 3(c) will not
affect any rights that the Executive may have pursuant to any agreement, policy, plan,
program or arrangement of the Company or any Subsidiary providing employee benefits,
which rights will be governed by the terms thereof; provided, however,
that if upon termination of employment, the Executive is entitled to severance
compensation or benefits under this Agreement and pursuant to any employment or
severance agreement or employee plan (an “Employment Agreement”), the Executive will be
entitled to severance benefits under either this Agreement or such Employment
Agreement, whichever agreement provides for greater benefits, but will not be entitled
to benefits under both agreements.






	4.	 	Severance Compensation.






	 	(a)	 	If, following the occurrence of a Change in Control, the Company or a
Subsidiary of the Company terminates the Executive’s employment during the Severance
Period other than as described in Section 3(a)(i), 3(a)(ii) or 3(a)(iii), or because
the Executive terminates the Executive’s employment pursuant to Section 3(b), subject
to Section 4(b), the Company will be obligated to make the following payments and
provide the following benefits to the Executive; provided that if
payment to the Executive of any amount pursuant to this Section 4(a) would constitute a
“deferral of compensation” under Section 409A of the Code and if the Executive’s
termination does not constitute a “separation from service” with the Company and its
Subsidiaries within the meaning of Section 409A(a)(2)(A)(i) of the Code, then payment
of such amount shall be made, to the extent necessary to comply with Section 409A of
the Code and subject to Section 4(b), to the Executive on the later of (i) the payment
date identified below in the applicable paragraph of this Section 4(a) or (ii) on the
earlier of (A) the Executive’s “separation from service” with the Company and its
Subsidiaries within the meaning of Section 409A(a)(2)(A)(i) of the Code, (B) the
Executive’s disability (within the meaning of Section 409A of the Code), (C) a change
in control of the
Company within the meaning of Section 409A of the Code or (D) the Executive’s death.




 


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	 	(i)	 	The Executive will be entitled to receive: (i) on the
sixty-first (61st) day after the Termination Date (subject to
Sections 4(a) and 4(b)), any Base Pay which has accrued but is unpaid, any
reimbursable expenses which have been incurred but are unpaid, and payment for
any unexpired vacation days which have accrued under the Company’s or a
Subsidiary’s vacation policy but are unused, as of the date of termination of
the Executive’s employment, (ii) any plan benefits which by their terms extend
beyond termination of the Executive’s employment (but only to the extent
provided in any such benefit plan in which the Executive has participated as an
employee of the Company or a Subsidiary and excluding, except as hereinafter
provided in this Section 4, any severance pay program or policy of the Company
or a Subsidiary), and (iii) subject to Section 4(a)(ii) below, payments or
benefits payable pursuant to the terms of any annual and/or long-term incentive
plan of the Company or a Subsidiary in accordance with the terms thereof. In
addition, the Executive shall be entitled to the additional benefits and
amounts described in the succeeding subsections of this Section 4, in the
circumstances described in such subsections.
	 
	 	(ii)	 	On the sixty-first (61st) day after the Termination
Date (subject to Sections 4(a) and 4(b)), the Executive will be entitled to
receive a lump sum cash payment in an amount equal to the greater of (A) the
Executive’s target or par annual bonus for the fiscal year in which the
Termination Date occurs or (B) the Executive’s target or par annual bonus for
the fiscal year in which the Change in Control occurs, pro-rated for the number
of full months that the Executive was employed during such fiscal year
(i.e., the annual bonus shall be multiplied by a fraction, the
numerator of which is the number of full months during which the Executive was
actively employed by the Company in the relevant fiscal year and the
denominator of which is 12).
	 
	 	(iii)	 	On the sixty-first (61st) day after the Termination
Date (subject to Sections 4(a) and 4(b)), the Executive will be entitled to
receive a lump sum cash payment in an amount equal to three (3) times the sum
of (A) Base Pay (at the highest rate in effect for any period within three
years prior to the Termination Date), plus (B) annual bonus (in an amount equal
to the greater of the Executive’s target or par annual bonus for the year in
which the Termination Date occurs or for the year in which the Change in
Control occurs, whichever is greater).




 


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	 	(iv)	 	For a period of eighteen (18) months following the Termination
Date (the “Continuation Period”), the Executive will be entitled to continued
participation in the Company’s medical, dental, vision, long-term disability
and life insurance plans (excluding benefits under the executive
death benefit plan) (the “Benefit Plans”), subject to the terms and
conditions of the Benefit Plans, including, but not limited to, timely
payment of any employee contributions necessary to maintain participation;
provided, however, that (A) such coverage shall be provided
only to the extent that such coverage would not be considered “deferred
compensation” subject to the requirements of Section 409A of the Code; and
(B) the Executive’s continued participation in the Benefit Plans during the
Continuation Period shall satisfy the Benefit Plans’ obligation, if any, to
provide the Executive the right to continuation coverage under the Benefit
Plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of
1986, as amended. If any benefit described in this Section 4(a)(iv) is
subject to tax, the Company will pay to the Executive on the sixty-first
(61st) day after the Termination Date (subject to Sections 4(a)
and 4(b)) an additional amount such that after payment by the Executive or
the Executive’s dependents or beneficiaries, as the case may be, of all
taxes (including any income or social security tax) imposed on the benefits
described in this Section 4(a)(iv) and any such additional payment by the
Company, the recipient retains an amount equal to such taxes.
	 
	 	(v)	 	On the sixty-first (61st) day after the Termination
Date (subject to Sections 4(a) and 4(b)), the Executive will be entitled to
receive a lump sum cash payment in an amount equal to the present value of
continued participation in the Benefit Plans for an additional 18 months. If
any benefit described in this Section 4(a)(v) is subject to tax, the Company
will pay to the Executive an additional amount such that after payment by the
Executive or the Executive’s dependents or beneficiaries, as the case may be,
of all taxes (including any income or social security tax) imposed on the
benefits described in this Section 4(a)(v) and any such additional payment by
the Company, the recipient retains an amount equal to such taxes.
	 
	 	(vi)	 	In addition to the retirement and other benefits to which the
Executive is entitled under the Company’s defined benefit retirement plans
(including any supplemental plans) with respect to the Executive’s employment
through the Termination Date, the Executive shall be entitled to a lump sum
cash payment, on the sixty-first (61st) day after the Termination
Date (subject to Sections 4(a) and 4(b)), in an amount equal to the present
value (calculated in accordance with the terms of the Company’s defined benefit
plans or supplemental plans, based on the age of the Executive at the date
entitlement to benefits under this Section 4(a)(vi) arises) of the excess of
(A) the retirement income and other benefits that would be payable to the
Executive under the defined benefit plans (including any supplemental plans) of
the Company if the Executive was credited with an additional three years of age
and three years of benefit and credited service in addition to the age and
total number of years of benefit and credited service the Executive has accrued
under such plans over (B) the retirement income and other benefits the
Executive is entitled to receive (either
immediately or on a deferred basis) under the defined benefit plans
(including any supplemental plans) of the Company. In the event that the
Executive, after credit for the additional three years, has a total of less
than five years of credited service, the Executive nonetheless shall be
treated as fully vested under the defined benefit retirement plans and any
supplemental retirement plans, but with benefits computed solely on the
basis of total benefit service.




 


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	 	(vii)	 	The Executive shall be entitled to outplacement services for a
time period (not less than six (6) months) established by the Company, by a
firm selected by the Company in its sole discretion, and at the expense of the
Company; provided, however, that all such outplacement services
must be completed by December 31 of the second calendar year following the
calendar year in which the Termination Date occurs and the Company will be
required to make all payments to the Executive for such outplacement services
by December 31 of the third calendar year following the calendar year in which
the Termination Date occurs.






	 	(b)	 	Notwithstanding anything to the contrary contained in this Agreement, if any
payment, reimbursement, or the provision of any benefit under this Agreement that is
paid or provided upon the Executive’s “separation from service” with the Company and
its Subsidiaries within the meaning of Section 409A(a)(2)(A)(i) of the Code would
constitute a “deferral of compensation” under Section 409A of the Code and the
Executive is a “specified employee” (as determined pursuant to procedures adopted by
the Company in compliance with Section 409A of the Code) on the date of the Executive’s
“separation from service” with the Company and its Subsidiaries within the meaning of
Section 409A(a)(2)(A)(i) of the Code, the Executive (or the Executive’s beneficiary)
will receive payment or reimbursement of such amounts or the provision of such benefits
upon the earlier of (i) the first day of the seventh month following the date of the
Executive’s “separation from service” with the Company and its Subsidiaries within the
meaning of Section 409A(a)(2)(A)(i) of the Code or (ii) the Executive’s death.
	 
	 	(c)	 	Without limiting the rights of the Executive at law or in equity, if the
Company fails to make any payment or provide any benefit required to be made or
provided hereunder on a timely basis, the Company will pay interest on the amount or
value thereof at an annualized rate of interest equal to the “prime rate” as set forth
from time to time during the relevant period in The Wall Street Journal “Money
Rates” column. Such interest will be payable as it accrues on demand. Any change in
such prime rate will be effective on and as of the date of such change.




 


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	5.	 	Golden Parachute Excise Tax. The amounts payable to the Executive under Section 4
shall be adjusted as set forth in this Section 5 if the sum (the “combined amount”) of the
amounts payable under Section 4 and all other payments or benefits which the Executive has
received or has the right to receive from the Company which are defined in Section
280G(b)(2)(A)(i) of the Code, would constitute a “parachute payment” (as defined in Section
280G(b)(2) of the Code). In such event, the combined amount shall, unless the
following sentence applies, be decreased by the smallest amount that will eliminate any
parachute payment. If the decrease referred to in the preceding sentence is 10% or more of
the combined amount, the combined amount shall not be decreased, but rather shall be
increased by an amount (the “Gross Up Payment”) sufficient to provide the Executive, after
tax, a net amount equal to the Code Section 4999 excise tax imposed on such combined amount,
as increased pursuant to this section. For this purpose, “after tax” means the amount
retained by the Executive after satisfaction (whether through withholding, direct payment or
otherwise) of all applicable federal, state, provincial and local income taxes at the
highest marginal tax rate, and the employee share of any applicable FICA taxes. To the
extent the decrease referred to in the second sentence of this Section 5 applies, such
decrease shall be made to the combined amount by reduction of the lump sum payment described
in Section 4(a)(ii) of this Agreement and, to the extent further reductions are required, in
such payments due to the Executive as the Company may determine. If at a time subsequent to
any payment under Section 4, an additional amount of Code Section 4999 excise tax is
definitively determined to be due by either the Internal Revenue Service or a court of
competent jurisdiction, the Company shall pay to the Executive an additional amount which,
net of Federal, state, provincial and local income, FICA and Code Section 4999 excise taxes,
will satisfy such additional Code Section 4999 excise tax, including applicable interest and
penalties. The parties acknowledge that, if the decrease referred to in the second sentence
of this Section 5 is 10% or more of the combined amount, the intention of the preceding
sentences in this Section 5 is to place the Executive in the position in which the Executive
would be if the Code Section 4999 excise tax did not exist. Notwithstanding any other
provision of this Section 5 to the contrary, all taxes and expenses described in this
Section 5 shall be paid or reimbursed within fifteen (15) days after the Executive submits
evidence of the incurrence of such taxes and/or expenses, provided that in all events such
payment or reimbursement shall be made on or before the last day of the year following (a)
the year in which the applicable taxes are remitted or expenses are incurred or (b), in the
case of reimbursement of expenses incurred due to a tax audit or litigation in which there
is no remittance of taxes, the year in which the audit is completed or there is a final or
nonappealable settlement or other resolution of the litigation, in accordance with Treas.
Reg. § 1.409A-3(i)(1)(v). The Executive shall be required to submit all requests for
payment or reimbursement no later than thirty (30) days prior to the last day for payment or
reimbursement described in the preceding sentence. Any expense paid or reimbursed by the
Company in one taxable year in no event will affect the amount of expenses required to be
paid or reimbursed by the Company in any other taxable year.
	 
	6.	 	No Mitigation Obligation. The Company hereby acknowledges that it will be difficult
and may be impossible for the Executive to find reasonably comparable employment following the
Termination Date. Accordingly, the payment of the severance compensation by the Company to
the Executive in accordance with the terms of this Agreement is hereby acknowledged by the
Company to be reasonable, and the Executive will not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise, nor will any
profits, income, earnings or other benefits from any source whatsoever create any mitigation,
offset, reduction or any other obligation on the part of the Executive hereunder or otherwise.




 


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	7.	 	Legal Fees and Expenses.






	 	(a)	 	If it should appear to the Executive that the Company has failed to comply with
any of its obligations under this Agreement or in the event that the Company or any
other person takes or threatens to take any action to declare this Agreement void or
unenforceable, or institutes any proceeding designed to deny, or to recover from, the
Executive the benefits provided or intended to be provided to the Executive hereunder,
the Company irrevocably authorizes the Executive from time to time to retain counsel of
the Executive’s choice, at the expense of the Company as hereafter provided, to advise
and represent the Executive in connection with any such dispute or proceeding. Without
respect to whether the Executive prevails, in whole or in part, in connection with any
of the foregoing, the Company will pay to the Executive and be financially responsible
for reasonable attorneys’ and related fees and expenses incurred by the Executive in
connection with claims made in good faith but only if, and to the extent and at the
earliest date(s) that, such actions are determined to be permitted without violating
Section 409A of the Code. Such payments will be made after delivery of the Executive’s
written requests for payment, accompanied by such evidence of fees and expenses
incurred as the Company may reasonably require. Notwithstanding the foregoing, any
such reimbursement shall be for expenses incurred during the Executive’s lifetime and
shall be made no later than the last day of the Executive’s tax year following the tax
year in which the Executive incurs the expense. In no event will the amount of
expenses eligible for reimbursement by the Company in one year affect the amount of
expenses eligible for reimbursement to be provided in any other taxable year.
	 
	 	(b)	 	Without limiting the obligations of the Company pursuant to Section 7(a), in
the event that (i) the Executive is entitled to benefits hereunder and (ii) payments to
the Executive would be required to be delayed by more than 20 business days due to
Section 409A of the Code or otherwise, the performance of the Company’s obligations
under Section 4 and this Section 7 will be secured by amounts deposited or to be
deposited in a grantor trust pursuant to certain trust agreements to which the Company
will be a party providing that the benefits to be paid pursuant to Section 4 and the
reasonable fees and expenses of counsel selected from time to time by the Executive
pursuant to Section 7(a) will be paid, or reimbursed to the Executive if paid by the
Executive, either in accordance with the terms of such trust agreements, or, if not so
provided, on a regular, periodic basis upon presentation by the Executive to the
trustee of a statement or statements prepared by such counsel in accordance with its
customary practices. Any failure by the Company to satisfy any of its obligations
under this Section 7(b) will not limit the rights of the Executive hereunder. Subject
to the foregoing, the Executive will have the status of a general unsecured creditor of
the Company and will have no right to, or security interest in, any assets of the
Company or any Subsidiary. Notwithstanding anything contained in this Agreement to the
contrary, in no event shall any amount be transferred to a trust described in this
Section 7(b) if, pursuant to Section 409A(b)(3)(A) of the Code, such amount
would, for purposes of Section 83 of the Code, be treated as property transferred in
connection with the performance of services.




 


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	8.	 	Competitive Activity; Confidentiality; Nonsolicitation.






	 	(a)	 	Acknowledgements and Agreements. The Executive hereby acknowledges and
agrees that in the performance of the Executive’s duties for the Company during the
Executive’s employment, the Executive will be brought into frequent contact, either in
person, by telephone or through the mails, with existing and potential customers of the
Company throughout the United States. The Executive also agrees that trade secrets and
confidential information of the Company, more fully described in Section 8(i) of this
Agreement, gained by the Executive during the Executive’s association with the Company,
have been developed by the Company through substantial expenditures of time, effort and
money and constitute valuable and unique property of the Company. The Executive
further understands and agrees that the foregoing makes it necessary for the protection
of the business of the Company that the Executive not compete with the Company during
the Executive’s employment and not compete with the Company for a reasonable period
thereafter, as further provided in the following subsections.
	 
	 	(b)	 	Covenants During Employment. During the Executive’s employment, the
Executive will not compete with the Company anywhere that the Company conducts its
business. In accordance with this restriction, but without limiting its terms, during
the Executive’s employment, the Executive will not:






	 	(i)	 	enter into or engage in any business which competes with the
business of the Company;
	 
	 	(ii)	 	solicit customers, business, patronage or orders for, or sell,
any products and services in competition with, or for any business that
competes with, the business of the Company;
	 
	 	(iii)	 	divert, entice or otherwise take away any customers, business,
patronage or orders of the Company or attempt to do so; or
	 
	 	(iv)	 	promote or assist, financially or otherwise, any person, firm,
association, partnership, corporation or other entity engaged in any business
which competes with the business of the Company.






	 	(c)	 	Covenants Following Termination. If, during the Severance Period, the
Executive’s employment is terminated entitling the Executive to payments and benefits
under Section 4 of this Agreement, for a period of one (1) year following the
termination of the Executive’s employment, the Executive will not:






	 	(i)	 	enter into or engage in any business which competes with the
Company’s business within the United States;
	 
	 	(ii)	 	solicit customers, business, patronage or orders for, or sell,
any products and services in competition with, or for any business, wherever
located, that competes with, the Company’s business within the United States;




 


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	 	(iii)	 	divert, entice or otherwise take away any customers, business,
patronage or orders of the Company within the United States, or attempt to do
so; or
	 
	 	(iv)	 	promote or assist, financially or otherwise, any person, firm,
association, partnership, corporation or other entity engaged in any business
which competes with the Company’s business within the United States.






	 	(d)	 	Indirect Competition. For the purposes of Sections 8(b) and 8(c), but
without limitation thereof, the Executive will be in violation thereof if the Executive
engages in any or all of the activities set forth therein directly as an individual on
the Executive’s own account, or indirectly as a general partner, joint venturer,
employee, agent, salesperson, consultant, officer and/or director of any firm,
association, partnership, corporation or other entity, or as a limited partner, member
or stockholder of any limited partnership, limited liability company, or corporation in
which the Executive or the Executive’s spouse, child or parent owns, directly or
indirectly, individually or in the aggregate, more than five percent (5%) of the
limited partnership interests, limited liability company interests or outstanding
stock, as the case may be.
	 
	 	(e)	 	The Company. For purposes of this Section 8, the Company shall include
any and all Subsidiaries.
	 
	 	(f)	 	The Company’s Business. For the purposes of Sections 8(b), 8(c), 8(j)
and 8(k), the Company’s business is defined to be the manufacture and distribution of
gypsum wallboard, joint compound and related gypsum products, cement board, gypsum
fiber panels, ceiling panels and grid, the distribution of building products and any
future businesses that the Company may enter, as further described in any and all
manufacturing, marketing and sales manuals and materials of the Company as the same may
be altered, amended, supplemented or otherwise changed from time to time, or of any
other products or services substantially similar to or readily substitutable for any
such described products and services.
	 
	 	(g)	 	Extension. If it shall be judicially determined that the Executive has
violated any of the Executive’s obligations under Section 8(c), then the period
applicable to each obligation that the Executive shall have been determined to have
violated shall automatically be extended by a period of time equal in length to the
period during which such violation(s) occurred.
	 
	 	(h)	 	Non-Solicitation. Until the expiration of three (3) years following
the Termination Date, the Executive will not directly or indirectly at any time solicit
or induce or attempt to solicit or induce any employee(s), sales representative(s),
agent(s) or consultant(s) of the Company and/or of its Subsidiaries to terminate
their employment, representation or other association with the Company and/or its
Subsidiaries.




 


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	 	(i)	 	Further Covenants.






	 	(i)	 	The Executive will keep in strict confidence, and will not,
without the prior written consent of the Company or as may otherwise be
required by law or legal process, directly or indirectly, at any time during or
after the Executive’s employment with the Company, disclose, furnish,
disseminate, make available or, except in the course of performing the
Executive’s duties of employment, use any trade secrets or non-public
confidential business and technical information of the Company or its customers
or vendors, including without limitation as to when or how the Executive may
have acquired such information before or during employment. Such confidential
information shall include, without limitation, the Company’s unique non-public
confidential selling, manufacturing and servicing methods and business
techniques, training, service and business manuals, promotional materials,
training courses and other training and instructional materials, vendor and
product information, customer and prospective customer lists, other customer
and prospective customer information and other business information. The
Executive specifically acknowledges that all such non-public confidential
information, whether reduced to writing, maintained on any form of electronic
media, or maintained in the Executive’s mind or memory and whether compiled by
the Company and/or the Executive, derives independent economic value from not
being readily known to or ascertainable by proper means by others who can
obtain economic value from its disclosure or use, that reasonable efforts have
been made by the Company to maintain the secrecy of such information, that such
information is the sole property of the Company and that any retention and use
of such information by the Executive during the Executive’s employment with the
Company (except in the course of performing the Executive’s duties and
obligations to the Company) or after the termination of the Executive’s
employment shall constitute a misappropriation of the Company’s trade secrets.
	 
	 	(ii)	 	The Executive agrees that upon termination of the Executive’s
employment with the Company, for any reason, the Executive shall return to the
Company, in good condition, all property of the Company, including without
limitation, the originals and all copies of any materials which contain,
reflect, summarize, describe, analyze or refer or relate to any items of
information listed in Section 8(i)(i) of this Agreement. In the event that
such items are not so returned, the Company will have the right to charge the
Executive for all reasonable damages, costs, attorneys’ fees and other expenses
incurred in searching for, taking, removing and/or recovering such property.




 


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	 	(j)	 	Discoveries and Inventions; Work Made for Hire.






	 	(i)	 	The Executive hereby assigns and agrees to assign to the
Company, its successors, assigns or nominees, all of the Executive’s rights to
any discoveries, inventions and improvements, whether patentable or not, made,
conceived or suggested, either solely or jointly with others, by the Executive
while in the Company’s employ with the use of the Company’s time, material or
facilities or in any way within or related to the existing or contemplated
scope of the Company’s business. Any discovery, invention or improvement
relating to any subject matter with which the Company was concerned during the
Executive’s employment and made, conceived or suggested by the Executive,
either solely or jointly with others, within one (1) year following termination
of the Executive’s employment under this Agreement or any successor agreements
shall be irrebuttably presumed to have been so made, conceived or suggested in
the course of such employment with the use of the Company’s time, materials or
facilities. Upon request by the Company with respect to any such discoveries,
inventions or improvements, the Executive will execute and deliver to the
Company, at any time during or after the Executive’s employment, all
appropriate documents for use in applying for, obtaining and maintaining such
domestic and foreign patents as the Company may desire, and all proper
assignments therefor, when so requested, at the expense of the Company, but
without further or additional consideration.
	 
	 	(ii)	 	Executive acknowledges that, to the extent permitted by law,
all work papers, reports, documentation, drawings, photographs, negatives,
tapes and masters therefor, prototypes and other materials (hereinafter,
“items”), including without limitation, any and all such items generated and
maintained on any form of electronic media, generated by the Executive during
the Executive’s employment with the Company shall be considered a “work made
for hire” and that ownership of any and all copyrights in any and all such
items shall belong to the Company. The item will recognize the Company as the
copyright owner, will contain all proper copyright notices, e.g., “(creation
date) [Company Name], All Rights Reserved,” and will be in condition to be
registered or otherwise placed in compliance with registration or other
statutory requirements throughout the world.






	 	(k)	 	Communication of Contents of Agreement. During the Executive’s
employment and for one (1) year thereafter, the Executive will communicate the contents
of this Agreement to any person, firm, association, partnership, corporation or other
entity which the Executive intends to be employed by, associated with, or represent and
which is engaged in a business that is competitive to the business of the Company.




 


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	 	(l)	 	Relief. The Executive acknowledges and agrees that the remedy at law
available to the Company for breach of any of the Executive’s obligations under this
Agreement would be inadequate. The Executive therefore agrees that, in addition to
any other rights or remedies that the Company may have at law or in equity,
temporary and permanent injunctive relief may be granted in any proceeding which may
be brought to enforce any provision contained in Sections 8(b), 8(c), 8(h), 8(i),
8(j) and 8(k) of this Agreement, without the necessity of proof of actual damage.
	 
	 	(m)	 	Reasonableness. The Executive acknowledges that the Executive’s
obligations under this Section 8 are reasonable in the context of the nature of the
Company’s business and the competitive injuries likely to be sustained by the Company
if the Executive was to violate such obligations. The Executive further acknowledges
that this Agreement is made in consideration of, and is adequately supported by, the
agreement of the Company to perform its obligations under this Agreement and by other
consideration, which the Executive acknowledges constitutes good, valuable and
sufficient consideration.






	9.	 	Employment Rights. Nothing expressed or implied in this Agreement will create any
right or duty on the part of the Company or the Executive to have the Executive remain in the
employment of the Company or any Subsidiary prior to or following any Change in Control.
	 
	10.	 	Withholding of Taxes. The Company may withhold from any amounts payable under this
Agreement all federal, state, city or other taxes as the Company is required to withhold
pursuant to any applicable law, regulation or ruling.
	 
	11.	 	Successors and Binding Agreement.






	 	(a)	 	The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of the business or
assets of the Company, by agreement in form and substance reasonably satisfactory to the
Executive, expressly to assume and agree to perform this Agreement in the same manner and to
the same extent the Company would be required to perform if no such succession had taken
place. This Agreement will be binding upon and inure to the benefit of the Company and any
successor to the Company, including without limitation any persons acquiring directly or
indirectly all or substantially all of the business or assets of the Company whether by
purchase, merger, consolidation, reorganization or otherwise (and such successor will
thereafter be deemed the “Company” for the purposes of this Agreement), but will not otherwise
be assignable, transferable or delegable by the Company.
	 
	 	(b)	 	This Agreement will inure to the benefit of and be enforceable by the
Executive’s personal or legal representatives, executors, administrators, successors,
heirs, distributees and legatees.
	 
	 	(c)	 	This Agreement is personal in nature and neither of the parties hereto will,
without the consent of the other, assign, transfer or delegate this Agreement or any
rights or obligations hereunder except as expressly provided in
Sections  11(a)
and 11(b). Without limiting the generality or effect of the foregoing, the
Executive’s right to receive payments hereunder will not be assignable, transferable
or delegable, whether by pledge, creation of a security interest, or otherwise,
other than by a transfer by the Executive’s will or by the laws of descent and
distribution and, in the event of any attempted assignment or transfer contrary to
this Section 11(c), the Company will have no liability to pay any amount so
attempted to be assigned, transferred or delegated.




 


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	12.	 	Notices. For all purposes of this Agreement, all communications, including without
limitation notices, consents, requests or approvals, required or permitted to be given
hereunder will be in writing and will be deemed to have been duly given when hand delivered or
dispatched by electronic facsimile transmission (with receipt thereof orally confirmed), or
five business days after having been mailed by United States registered or certified mail,
return receipt requested, postage prepaid, or three business days after having been sent by a
nationally recognized overnight courier service such as FedEx or UPS, addressed to the Company
(to the attention of the Secretary of the Company) at its principal executive office and to
the Executive at the Executive’s principal residence, or to such other address as any party
may have furnished to the other in writing and in accordance herewith, except that notices of
changes of address will be effective only upon receipt.
	 
	13.	 	Governing Law. The validity, interpretation, construction and performance of this
Agreement will be governed by and construed in accordance with the substantive laws of the
State of Delaware and federal law, without giving effect to the principles of conflict of laws
of such State, except as expressly provided herein.
	 
	14.	 	Validity. If any provision of this Agreement or the application of any provision
hereof to any person or circumstance is held invalid or otherwise unenforceable, the remainder
of this Agreement and the application of such provision to any other person or circumstance
will not be affected, and the provision so held to be invalid or otherwise unenforceable will
be reformed to the extent (and only to the extent) necessary to make it enforceable or valid.
	 
	15.	 	Miscellaneous.






	 	(a)	 	No provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing signed by the Executive
and the Company. No waiver by either party hereto at any time of any breach by the
other party hereto or compliance with any condition or provision of this Agreement to
be performed by such other party will be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No agreements
or representations, oral or otherwise, expressed or implied with respect to the subject
matter hereof have been made by either party that are not set forth expressly in this
Agreement.
	 
	 	(b)	 	Subject to Section 3(d), this Agreement supersedes, as of the date first above
written, any prior agreements providing for severance payments and benefits
following a Change in Control, including the existing Change in Control Severance
Agreement between the Executive and the Company (the “Prior Agreements”). The
Executive agrees that he or she has no further rights under the Prior Agreements.




 


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	 	(c)	 	The headings used in this Agreement are intended for convenience or reference
only and will not in any manner amplify, limit, modify or otherwise be used in the
construction or interpretation of any provision of this Agreement. References to
Sections are to Sections of this Agreement. Any reference in this Agreement to a
provision of a statute, rule or regulation will also include any successor provision
thereto.






	16.	 	Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity or unenforceability shall not
affect any other provision of this Agreement, but this Agreement shall be reformed, construed
and enforced in such jurisdiction as if such invalid or unenforceable provision had never been
contained herein.
	 
	17.	 	Survival. Notwithstanding any provision of this Agreement to the contrary, the
parties’ respective rights and obligations under Sections 3(d), 4, 5, 7, 8, 10, 11(b), 16 and
17 will survive any termination or expiration of this Agreement or the termination of the
Executive’s employment following a Change in Control for any reason whatsoever.
	 
	18.	 	Beneficiaries. The Executive will be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to receive any compensation
or benefit payable hereunder following the Executive’s death, and may change such election, in
either case by giving the Company written notice thereof in accordance with Section 12. In
the event of the Executive’s death or a judicial determination of the Executive’s
incompetence, reference in this Agreement to the “Executive” will be deemed, where
appropriate, to the Executive’s beneficiary, estate or other legal representative.
	 
	19.	 	Counterparts. This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original but all of which together will constitute one and the
same agreement.
	 
	20.	 	Release Agreement. No payments shall be made under Section 3(c) and Section 4 hereof
(other than Section 4(a)(i)) unless the Executive, on or before the 60th day
following the Executive’s Termination Date, (a) signs and returns a Release Agreement within
the number of days that the Company determines is required under applicable law, but in no
event more than forty-five (45) days after the Company delivers the Release Agreement to the
Executive and (b) does not revoke such Release Agreement within the time period provided
therein, such time period not to exceed seven (7) days. If the Executive becomes entitled to
payments under Section 4 hereof (other than Section 4(a)(i)), the
Company shall deliver to the Executive a copy of the Company’s standard form of Release
Agreement within seven (7) days of the Executive’s Termination Date.




 


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	21.	 	Representations. The Executive represents and warrants to the Company that upon the
execution and delivery of this Agreement by the Company, this Agreement shall be the valid and
binding obligation of the Executive, enforceable in accordance with its terms. The Company
represents and warrants to the Executive that upon the execution and delivery of this
Agreement by the Executive, this Agreement shall be the valid and binding obligation of the
Company, enforceable in accordance with its terms.
	 
	22.	 	Section 409A of the Code. Each payment or reimbursement and the provision of each
benefit under this Agreement shall be considered to be a separate payment and not one of a
series of payments for purposes of Section 409A of the Code. To the extent applicable, it is
intended that this Agreement comply with the provisions of Section 409A of the Code, so that
the income inclusion provisions of Section 409A(a)(1) of the Code do not apply to the
Executive. This Agreement shall be administered in a manner consistent with this intent.
Reference to Section 409A of the Code is to Section 409A of the Internal Revenue Code of 1986,
as amended, and will also include any regulations or any other formal guidance promulgated
with respect to such Section by the U.S. Department of the Treasury or the Internal Revenue
Service.





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



	 	 	 	 	 
	 	USG CORPORATION	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Executive

 	 




 


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