EXHIBIT 10.36
FIFTH AMENDMENT
OF
USG CORPORATION RETIREMENT PLAN
(As Amended and Restated Effective as of January 1, 1999)
WHEREAS, USG Corporation Retirement Plan (the "plan") is maintained by USG
Corporation (the "company"), which plan was amended and restated on December 29,
1999, effective as of January 1, 1999; and
WHEREAS, it now is deemed desirable and in the best interests of the
employers under the plan and their employees to further amend the plan;
NOW, THEREFORE, pursuant to the amending power reserved to the company
under subsection 14.1 of the plan, the plan is further amended, as follows:
1. By substituting the following for subsection 2.1 of the plan, effective
June 27, 2005:
"2.1 Covered Employee, Participant, Eligibility Date
The term `covered employee' means an employee who is a member of a
group of employees of an employer to which the plan has been and continues
to be extended by the company or by agreement, and who, effective January
1, 2000, is not classified by the employer as a temporary employee. The
term `participant' means an employee of a USG Company who, after becoming
eligible for participation in the plan, is enrolled in the plan pursuant
to this Section 2 and also means a former employee of the USG Companies
who either is receiving benefits under the plan or is entitled to receive
benefits under the plan commencing on a future date. The term `eligibility
date' means for any employee the date that is determined, in accordance
with uniform and consistent rules established by the committee, by
reference to (and not later than the 90 days after) the date on which the
employee first performs an hour of service as a covered employee. In the
case
of an employee who declines to make contributions under subsection 2.5
when the employee is first eligible to do so, the term `eligibility date'
means the first subsequent pay date after the employee's enrollment form
is received and processed by the employee's employer, as determined in
accordance with rules established by the committee. In the case of a
former employee who is reemployed by an employer, the term `eligibility
date' also includes any other date described in subparagraphs 9.1(a) and
9.2(b) on which such employee is entitled to become enrolled in the plan.
If an employee of a USG Company becomes a covered employee more than six
months after the date the employee completes twelve months of employment
with the USG Companies, the date the employee so becomes a covered
employee also shall be an `eligibility date.' For purposes of determining
eligibility to become a participant in the plan, the term `employee' for
any plan year means any individual who is treated and/or classified by the
employer for such plan year as an employee for purposes of employment
taxes and wage withholding for Federal income tax. Except as specifically
provided in subparagraph 2.8(c), individuals who perform services for an
employer as independent contractors, leased employees, or through agencies
are not employees of the employer and therefore are not eligible for
benefits under this plan. If an individual is not considered to be an
employee of an employer for purposes of employment taxes and wage
withholding, a subsequent determination by the employer, any governmental
agency or court that the individual is a common law employee of the
employer, even if such determination is applicable to prior years, will
not have a retroactive effect for purposes of eligibility to participate
in the plan for any plan year. A temporary employee is an employee who is
classified as such by the employer and is employed usually for less than
90 days with a specified date beyond which employment will not continue;
interns (i.e. students who are employed during summer and other vacations)
and co-op students (i.e. students who receive school credit for employment
with the employer) are considered temporary employees."
2. By substituting the following for subparagraph 5.5(a), effective March
28, 2005:
"(a) If the lump sum actuarially equivalent value of the
participant's accrued benefits derived from employer
contributions does not exceed $5,000 (but subject to the
consent requirements set forth in subparagraph 7.8(a) if the
lump sum actuarially equivalent value of the participant's
total accrued benefits exceeds $1,000), the lump sum payment
will be an amount equal to the lump sum actuarially equivalent
value of the participant's total accrued benefits. Unless the
participant subsequently is reemployed by an employer and
again becomes an active participant and makes the required
contributions, no other benefits shall be payable under the
plan to, or with respect to, the participant."
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3. By substituting "$1,000" for "$5,000" where the latter appears in
subsection 5.11 of the plan, effective March 28, 2005.
4. By substituting the following for subsection 5.11 of the plan,
effective June 27, 2005:
"5.11 Benefit Commencement Consent Requirements
If the lump sum actuarially equivalent value of a participant's
nonforfeitable accrued benefits is greater than $1,000, written consent of
the participant and, if the participant has an eligible spouse at the time
of the commencement of the distribution of such benefits, the
participant's eligible spouse, shall be required before the commencement
of the distribution of any part of the participant's accrued benefits as
described in subparagraph 7.8(a). No consent shall be required for any
payment to a survivor other than an eligible spouse."
5. By substituting the following for subparagraph 6.3(a) of the plan,
effective March 27, 2005:
"(a) If the lump sum actuarially equivalent value of the
participant's accrued benefits derived from employer
contributions does not exceed $5,000 (but subject to the
consent requirements set forth in subparagraph 7.8(a) if the
lump sum actuarially equivalent value of the participant's
total accrued benefits exceeds $1,000), the lump sum payment
will be an amount equal to the lump sum actuarially equivalent
value of the participant's total accrued benefits. Unless the
participant subsequently is reemployed by an employer and
again becomes an active participant and makes the required
contributions, no other benefits shall be payable under the
plan to, or with respect to, the participant."
6. By substituting $1,000" for "$5,000" where the latter appears in
subsection 6.7 of the plan, effective March 28, 2005.
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7. By substituting the following for subsection 6.7 of the plan, effective
June 27, 2005:
"6.7 Benefit Commencement Consent Requirements
If the lump sum actuarially equivalent value of a participant's
nonforfeitable accrued benefits is greater than $1,000, written consent of
the participant and, if the participant has an eligible spouse at the time
of the commencement of the distribution of such benefits, the
participant's eligible spouse, shall be required before the commencement
of the distribution of any part of the participant's accrued benefits as
described in subparagraph 7.8(a). No consent shall be made for any payment
to a survivor who is not an eligible spouse."
8. By substituting "$1,000" for "$5,000" where the latter appears in
subparagraph 7.8(a) and in subsection 7.9 of the plan, effective March 28, 2005.
9. By substituting the following for subsection 7.9 of the plan, effective
June 27, 2005:
"7.9 Payment of Small Amounts
If the lump sum actuarially equivalent value of a participant's
accrued benefits (as defined in subparagraph 7.10(a)) does not exceed
$1,000, or if the participant's accrued benefits are payable to a
participant's eligible spouse because of the death of the participant
before the participant's benefit commencement date and the lump sum
actuarially equivalent value of such benefits does not exceed $1,000, a
lump sum payment equal to the lump sum actuarially equivalent value of
such benefits shall be paid to the participant, or the participant's
eligible spouse, as the case may be. For purposes of this subsection, the
lump sum actuarially equivalent value shall be determined in accordance
with paragraph A-4 of Exhibit A. If a participant's accrued benefits
derived from employer contributions are zero, the participant shall be
deemed to have received a distribution of such benefits."
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IN WITNESS WHEREOF, the company has caused these presents to be signed by
its officer thereunto duly authorized this 4th day of August, 2005.
USG CORPORATION
By: /s/ Peter K. Maitland
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Vice President, Compensation
Benefits And Administration
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