EX-4.1






Exhibit 4.1




AMENDMENT TO RIGHTS AGREEMENT




     Amendment, dated as of December 5, 2008 (this “Amendment”), to the Rights Agreement,
dated as of December 21, 2006 (the “Rights Agreement”), by and between USG Corporation, a
Delaware corporation (the “Company”), and Computershare Investor Services, LLC, as rights
agent (predecessor-in-interest to Computershare Trust Company, N.A., hereinafter, the “Rights
Agent”).



RECITALS




     WHEREAS, the Board of Directors of the Company has determined that it is in the best interests
of the Company and its stockholders to amend the Rights Agreement as set forth in this Amendment;



     WHEREAS, pursuant to Section 27 of the Rights Agreement, prior to the time at which the Rights
cease to be redeemable, and subject to the penultimate sentence of Section 27 of the Rights
Agreement, the Company may in its sole and absolute discretion, and the Rights Agent will if the
Company so directs, supplement or amend any provision of the Rights Agreement in any respect in
accordance with the provisions of such Section; and



     WHEREAS, pursuant to the terms of the Rights Agreement and in accordance with Section 27
thereof, the Company has directed that the Rights Agreement be amended as set forth in this
Amendment, and by its execution and delivery hereof, directs the Rights Agent to execute this
Amendment.



     NOW THEREFORE, in consideration of the foregoing and the mutual agreements set forth in the
Rights Agreement and in this Amendment, the parties hereto hereby amend the Rights Agreement as
follows:



     1. Section 1(a) of the Rights Agreement is hereby amended and restated in its entirety as
follows:




     “(a) “Acquiring Person” means any Person (other than the Company, any Related Person,
any Restricted Person or any Exempt Person) who or which, together with all Affiliates and
Associates of such Person, is the Beneficial Owner of the Trigger Amount, or more, of the
then-outstanding Common Shares; provided, however, that (i) any Person who
or which would otherwise be an Acquiring Person as of 4:00 p.m., New York City time, on
December 4, 2008 (the “Amendment Date”) (including any Person who or which would otherwise
qualify as an Acquiring Person but for being a Restricted Person on
the Amendment Date) will
not be deemed to be an Acquiring Person for any purpose of this Agreement prior to or after
the Amendment Date unless and until such time as (A) such Person or any Affiliate or
Associate of such Person thereafter becomes by reason of a transaction after the Amendment
Date the Beneficial Owner of any additional Common Shares, other than (1) pursuant to any agreement or regular-way
purchase order for Common Shares that is in effect on or prior to the Amendment Date and
consummated in accordance with its terms after the



 









 







Amendment Date, (2) as a result of a
stock dividend, rights dividend, stock split or similar transaction effected by the Company
in which all holders of Common Shares are treated equally, or (3) during the Special Period,
as a result of the conversion by the initial purchaser (or a controlled Affiliate thereof)
into Common Shares of 10% Contingent Convertible Senior Notes due 2018 of the Company (the
“10% Notes”) issued by the Company to such Person or a controlled Affiliate of such Person,
or (B) any other Person who is the Beneficial Owner of Common Shares becomes an Affiliate
or Associate of such Person, provided that the foregoing exclusion in this clause
(i) shall cease to apply with respect to any Person at such time as such Person, together
with all Affiliates and Associates of such Person, Beneficially Owns less than the Trigger
Amount of the then-outstanding Common Shares, and (ii) a Person will not be deemed to have
become an Acquiring Person solely as a result of a reduction in the number of Common Shares
outstanding unless and until such time as (A) such Person or any Affiliate or Associate of
such Person thereafter becomes the Beneficial Owner of any additional Common Shares, other
than as a result of a stock dividend, stock split or similar transaction effected by the
Company in which all holders of Common Shares are treated equally, or (B) any other Person
who is the Beneficial Owner of Common Shares thereafter becomes an Affiliate or Associate of
such Person. Notwithstanding the foregoing, if (1) the Board of Directors of the Company
determines that a Person who would otherwise be an “Acquiring Person” as defined pursuant to
the foregoing provisions of this Section 1(a) has become such inadvertently and that the
exemption of such Person from the definition of “Acquiring Person” is in the best interests
of the Company, and (2) such Person divests as promptly as practicable or agrees in writing
with the Company to divest a sufficient number of Common Shares so that such Person would no
longer be an “Acquiring Person” as defined pursuant to the foregoing provisions of this
Section 1(a), then such Person shall not be deemed to be an “Acquiring Person” for any
purposes of this Agreement, provided, however, that the requirement
in this clause (2) shall apply during the Special Period only if the
actions specified therein are required by the Board of Directors of
the Company.”



     2. Section 1(b) of the Rights Agreement is hereby amended and restated in its entirety as
follows:




     “(b) “Affiliate” and “Associate” will have the respective meanings ascribed to such
terms in Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date of this Agreement, and to the extent not included within the foregoing
clause of this Section 1(c), will also include, with respect to any Person, any other Person
(other than a Related Person, a Restricted Person or an Exempt Person) whose Common Shares
would be deemed constructively owned by such first Person pursuant to the provisions of
Section 382 of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor
provision or replacement provision, provided, however, that a Person will
not be deemed to be the Affiliate or Associate of another Person solely because either or both Persons are or were Directors of the
Company.”



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     3. Section 1(c) of the Rights Agreement is hereby amended by adding the following sentence at
the end thereof:




“Notwithstanding anything in this Agreement to the contrary, (1) to the extent not within
the foregoing provisions of this Section 1(d), a Person shall be deemed the “Beneficial
Owner” of, and shall be deemed to “beneficially own” or have “beneficial ownership” of, any
securities which such Person would be deemed to constructively own pursuant to Section 382
of the Code, or any successor provision or replacement provision, and (2) during the Special
Period, a Person shall not be deemed to be the “Beneficial Owner” of, or to “beneficially
own” or have “beneficial ownership” of, any Common Shares into which 10% Notes are
convertible unless and until, and only to the extent that, such Person acquires Common
Shares upon conversion of 10% Notes.”



     4. Section 1(h) of the Rights Agreement is hereby amended and restated in its entirety as
follows:




     “(h) “Distribution Date” means the earlier of: (i) the Close of Business on the tenth
calendar day following the Share Acquisition Date (or, if the tenth calendar day after the
Share Acquisition Date occurs before the Record Date, the Close of Business on the Record
Date), or (ii) the Close of Business on the tenth Business Day (or, unless the Distribution
Date shall have previously occurred, such later date as may be specified by the Board of
Directors of the Company) after the commencement of a tender or exchange offer by any Person
(other than the Company, any Related Person or a Restricted Person), if upon the
consummation thereof such Person would be the Beneficial Owner of the Trigger Amount, or
more, of the then-outstanding Common Shares.”



     5. Section 1(o) of the Rights Agreement is hereby amended and restated in its entirety as
follows:




     “(o) “Person” shall mean any individual, firm, corporation, partnership, limited
liability company, limited liability partnership, trust or other legal entity, group of
persons making a “coordinated acquisition” of shares or otherwise treated as an entity
within the meaning of Section 1.382-3(a)(1) of the Treasury Regulations or otherwise, and
includes any successor (by merger or otherwise) of such individual or entity.”



     6. Section 1 of the Rights Agreement is hereby further amended by adding the following
subsections at the end thereof:




     “(dd) “Exempt Person” means a Person whose Beneficial Ownership (together with all
Affiliates and Associates of such Person) of 4.99% or more of the then-outstanding Common
Shares (but less than 15% of the then-outstanding Common Shares) will not, as determined by
the Company’s Board of Directors in its sole discretion pursuant to a duly adopted resolution, jeopardize or endanger the
availability to the Company of any income tax benefit, provided, however,
that



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such a Person will cease to be an Exempt Person if the Board makes a contrary
determination with respect to the effect of such Person’s Beneficial Ownership (together
with all Affiliates and Associates of such Person) regardless of the reason therefor.




     (ee) “Special Period” means the period beginning at 4:00 p.m., New York City time, on
the Amendment Date, and ending at midnight, New York City time, on September 30, 2009.




     (ff) “Trigger Amount” means 4.99% during the Special Period and 15% from and after
October 1, 2009.”



     7. Section 2 of the Rights Agreement is hereby amended and restated in its entirety as
follows:




     “The Company hereby appoints the Rights Agent to act as agent for the Company in
accordance with the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment and hereby certifies that it complies with the requirements of the New York
Stock Exchange governing transfer agents and registrars. The Company may from time to time
act as Co-Rights Agent or appoint such Co-Rights Agents as it may deem necessary or
desirable, upon ten days’ prior written notice to the Rights Agent. The Rights Agent shall
have no duty to supervise, and in no event shall be liable for, the acts or omissions of any
such co-Rights Agent. Any actions which may be taken by the Rights Agent pursuant to the
terms of this Agreement may be taken by any such Co-Rights Agent. To the extent that any
Co-Rights Agent takes any action pursuant to this Agreement, such Co-Rights Agent will be
entitled to all of the rights and protections of, and subject to all of the applicable
duties and obligations imposed upon, the Rights Agent pursuant to the terms of this
Agreement.”



     8. Section 27 of the Rights Agreement is hereby amended and restated in its entirety as
follows:




     “Prior to the time at which the Rights cease to be redeemable pursuant to Section 23,
and subject to the penultimate sentence of this Section 27, the Company may in its sole and
absolute discretion, and the Rights Agent will if the Company so directs, supplement or
amend any provision of this Agreement in any respect without the approval of any holders of
Rights or Common Shares. From and after the time at which the Rights cease to be redeemable
pursuant to Section 23, and subject to the penultimate sentence of this Section 27, the
Company may, and the Rights Agent will if the Company so directs, supplement or amend this
Agreement without the approval of any holders of Rights or Common Shares in order (i) to
cure any ambiguity, (ii) to correct or supplement any provision contained herein which may
be defective or inconsistent with any other provisions herein, (iii) to shorten or lengthen
any time period hereunder, or
(iv) to supplement or amend the provisions hereunder in any manner which the Company
may deem desirable; provided, however, that no such supplement or



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amendment
shall adversely affect the interests of the holders of Rights as such (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring Person), and no such
supplement or amendment shall cause the Rights again to become redeemable or cause this
Agreement again to become supplementable or amendable otherwise than in accordance with the
provisions of this sentence. Without limiting the generality or effect of the foregoing,
this Agreement may be supplemented or amended to provide for such voting powers for the
Rights and such procedures for the exercise thereof, if any, as the Board of Directors of
the Company may determine to be appropriate. Upon the delivery of a certificate from an
officer of the Company which states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, the Rights Agent will execute such supplement
or amendment; provided, however, that the failure or refusal of the Rights
Agent to execute such supplement or amendment (other than a supplement or amendment that
affects the duties, liabilities, obligations or responsibilities of the Rights Agent) will
not affect the validity of any supplement or amendment adopted by the Board of Directors of
the Company, any of which will be effective in accordance with the terms thereof.
Notwithstanding anything in this Agreement to the contrary, no supplement or amendment may
be made which decreases the stated Redemption Price to an amount less than $0.001 per Right.
Notwithstanding anything in this Agreement to the contrary, the limitations on the ability
of the Board of Directors to amend this Agreement set forth in this Section 27 shall not
affect the power or ability of the Board of Directors to take any other action that is
consistent with its fiduciary duties under Delaware law, including without limitation
accelerating or extending the Expiration Date or making any other amendment to this
Agreement that is permitted by this Section 27 or adopting a new stockholder rights plan
with such terms as the Board of Directors determines in its sole discretion to be
appropriate.”



     9. Section 33 of the Rights Agreement is hereby amended and restated in its entirety as
follows:




     “Determinations and Actions by the Board. For all purposes of this Agreement,
any calculation of the number of Common Shares outstanding at any particular time, including
for purposes of determining the particular percentage of such outstanding Common Shares of
which any Person is the Beneficial Owner, will be made in accordance with, as the Board of
Directors deems to be applicable, the last sentence of Rule 13d-3(d)(1)(i) of the General
Rules and Regulations under the Exchange Act or the provisions of Section 382 of the Code,
or any successor provision or replacement provision. The Board of Directors of the Company
will have the exclusive power and authority to administer this Agreement and to exercise all
rights and powers specifically granted to the Board of Directors of the Company or to the
Company, or as may be necessary or advisable in the administration of this Agreement,
including without limitation the right and power to (i) interpret the provisions of this
Agreement (including without limitation Section 27, this Section 33 and other provisions
hereof relating to its powers or authority hereunder) and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement (including without



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limitation any
determination contemplated by Section 1(a) or any determination as to whether particular
Rights shall have become void). All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, any omission with respect to
any of the foregoing) which are done or made by the Board of Directors of the Company in
good faith will (x) be final, conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties and (y) not subject the Board of Directors of
the Company to any liability to any Person, including without limitation the Rights Agent
and the holders of the Rights.”



     10. Exhibit B to the Rights Agreement is hereby deemed amended in a manner consistent with
this Amendment.



     11. Capitalized terms used without other definition in this Amendment will be used as defined
in the Rights Agreement.



     12. This Amendment will be deemed to be a contract made under the internal substantive laws of
the State of Delaware and for all purposes will be governed by and construed in accordance with the
internal substantive laws of such State applicable to contracts to be made and performed entirely
within such State.



     13. The Rights Agreement will not otherwise be supplemented or amended by virtue of this
Amendment, but will remain in full force and effect.



     14. This Amendment may be executed in any number of counterparts and each of such counterparts
will for all purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.



     15. The undersigned officer of the Company, being duly authorized on behalf of the Company,
hereby certifies in his or her capacity as an officer on behalf of the Company to the Rights Agent
that this Amendment is in compliance with the terms of Section 27 of the Rights Agreement.



     16. By its execution and delivery hereof, the Company directs the Rights Agent to execute this
Amendment.



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     IN WITNESS WHEREOF, this Amendment has been duly executed by the Company and the Rights Agent
on December 5, 2008.




	 	 	 	 	 
	 	USG CORPORATION
	 
	 	By:  	               /s/ Stanley L. Ferguson
 	 
	 	 	Name:  	Stanley L. Ferguson 	 
	 	 	Title:  	Executive Vice President and
General Counsel 	 
	 



	 	 	 	 	 
	 	COMPUTERSHARE INVESTOR SERVICES, LLC

 	 
	 	By:  	/s/ Robert Buckley
 	 
	 	 	Name:  	Robert Buckley 	 
	 	 	Title:  	Senior Vice President 	 
	 




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