EXHIBIT 10.11
USG CORPORATION
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is effective as of January 1,
2007 (the "Effective Date") between USG Corporation, a Delaware corporation (the
"Company"), and ___________________ (the "Executive").
RECITALS:
WHEREAS, the Company desires to employ the Executive and the Executive
desires to accept such employment with the Company;
WHEREAS, as of the Effective Date, the Company shall employ the Executive
on the terms and conditions set forth in this Agreement, and the Executive shall
be retained and employed by the Company to perform services under the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Certain Definitions. Certain words or phrases with initial capital letters
not otherwise defined herein shall have the meanings set forth in Section 9
hereof.
2. Employment. The Company shall employ the Executive, and the Executive
accepts employment with the Company, as of the Effective Date, upon the
terms and conditions set forth in this Agreement for the period beginning
on the Effective Date and ending as provided in Section 5 hereof (the
"Employment Period").
3. Position and Duties. During the Employment Period, the Executive shall
serve as the [TITLE] of the Company and shall have the normal duties,
responsibilities and authority of an executive serving in such position,
subject to the power of the Chief Executive Officer to expand or limit such
duties, responsibilities and authority, either generally or in specific
instances. The Executive shall perform the Executive's duties and
responsibilities to the best of the Executive's abilities in a diligent,
trustworthy, businesslike and efficient manner.
4. Compensation and Benefits.
(a) Salary. The Company agrees to pay the Executive a salary ("Base
Salary") during the Employment Period in installments based on the
Company's practices as may be in effect from time to time. The
Executive's initial Base Salary shall be at the rate of
$___________________ per year. The Executive's Base Salary shall be
reviewed annually and may be increased from time to time.
(b) Incentive Plans. The Executive shall be eligible to participate in the
Company's annual and long-term incentive plans, on a basis comparable
to other similarly situated executives of the Company.
(c) Expense Reimbursement. The Company shall reimburse the Executive for
all reasonable expenses incurred by the Executive during the
Employment Period in the course of performing the Executive's duties
under this Agreement that are consistent with the Company's policies
in effect from time to time with respect to travel, entertainment and
other business expenses, subject to the Company's requirements
applicable generally with respect to reporting and documentation of
such expenses.
(d) Standard Executive Benefits. The Executive shall be entitled during
the Employment Period to participate (on the same basis as other
similarly situated executives of the Company) in the Company's benefit
plans (including health and life insurance, retirement and investment
plans (including supplements thereto), vacation, perquisites and other
benefits, but excluding, except as hereinafter provided in Section 6,
any severance pay program or policy of the Company) for which
substantially all other similarly situated executives of the Company
are from time to time generally eligible, as determined from time to
time by the Board or a committee of the Board.
(e) Indemnification. The Executive shall be eligible to enter into the
Company's standard Indemnification Agreement that is entered into with
other similarly situated senior executives of the Company.
5. Employment Period.
(a) Except as hereinafter provided, the Employment Period shall begin on
the Effective Date and shall extend until the second anniversary of
the Effective Date, with automatic one-year renewals thereafter unless
either party notifies the other at least 90 days before the scheduled
expiration date that the Employment Period is not to renew.
(b) Notwithstanding (a) above, the Employment Period shall end early upon
the first to occur of any of the following events:
(i) the Executive's death;
(ii) the Company's termination of the Executive's employment on
account of Disability;
(iii) a Termination for Cause;
(iv) a Termination without Cause; or
(v) a Voluntary Termination.
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6. Post-Employment Period Payments.
(a) At the end of the Employment Period for any reason, the Executive
shall cease to have any rights to salary, bonus, expense
reimbursements or other benefits, except that the Executive shall be
entitled to receive: (i) as soon as practicable following the end of
the Employment Period, any Base Salary 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 end of the Employment Period, (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 Section 6,
any severance pay program or policy of the Company or a Subsidiary),
(iii) 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, and (iv) any benefits to which the
Executive is entitled under Part 6 of Subtitle B of Title I of the
Employee Retirement Income Security Act of 1974, as amended ("COBRA").
In addition, the Executive shall be entitled to the additional
benefits and amounts described in the succeeding subsections of this
Section 6, in the circumstances described in such subsections.
(b) If the Employment Period ends pursuant to Section 5 hereof on account
of death, a Voluntary Termination, a Termination for Cause or a
termination on account of the Executive's Disability, the Company
shall make no further payments to the Executive except as contemplated
in Section 6(a) above.
(c) If the Employment Period ends early pursuant to Section 5 on account
of a Termination without Cause, the Executive shall be entitled to the
payments contemplated in Section 6(a) above and as set forth below:
(i) Within ten (10) business days after the expiration of any
revocation period relating to the Release Agreement described in
Section 11 below, the Executive shall be entitled to a lump sum
payment in an amount equal to two (2) times the sum of (A) Base
Salary (at the highest rate in effect for any period within two
years prior to the Termination Date), plus (B) annual bonus (in
an amount equal to target annual bonus for the year in which the
Termination Date occurs).
(ii) Within ten (10) business days after the expiration of any
revocation period relating to the Release Agreement described in
Section 11 below, the Executive shall be entitled to a lump sum
payment equal to the total cost (including both the Executive's
and the Company's portion of such costs as paid while the
Executive was employed) of continuing the medical, dental,
vision, long-term disability and life insurance benefits
(excluding benefits under the executive death benefit plan)
substantially similar to those that the Executive was receiving
or entitled to receive immediately
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prior to the Termination Date for a period of eighteen (18)
months; provided, however, if any benefit described in this
Section 6(c)(ii) 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 so imposed, the recipient retains an
amount equal to such taxes.
(iii) 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 payment, within ten
(10) business days after the expiration of any revocation period
relating to the Release Agreement described in Section 11 below,
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 6(c)(iii) 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 two years of age and
two 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
two 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.
(iv) 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 second calendar year
following the calendar year in which the Termination Date occurs.
(v) Notwithstanding anything to the contrary contained in this
Section 6(c), if payment to the Executive of any amount paid
pursuant to this Section 6(c) would constitute a "deferral of
compensation" under Section 409A of the Code (such compensation
does not, for example, qualify for the "short-term deferral
exception" under Section 409A of the Code) and the
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Executive is a "specified employee" (as such phrase is defined in
Section 409A of the Code), the Executive (or the Executive's
beneficiary) will receive payment of such amounts described in
this Section 6(c) upon the earlier of (i) six (6) months
following the Executive's "separation from service" with the
Company (as such phrase is defined in Section 409A of the Code)
or (ii) the Executive's death.
(d) It is expressly understood that the Company's payment obligations
under Section 6(c) shall cease in the event the Executive breaches any
of his or her agreements in Section 7 hereof and, in the event of any
such breach, the Executive shall repay in cash immediately to the
Company any amounts previously paid to the Executive under Section
6(c) of this Agreement.
(e) The Executive shall not be required to mitigate the amount of any
payment or benefit provided for in this Agreement by seeking other
employment or otherwise.
7. 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 Employment Period, 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 7(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 Employment Period and not
compete with the Company for a reasonable period thereafter, as
further provided in the following subsections.
(b) Covenants During the Employment Period. During the Employment Period,
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 Employment Period, 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
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(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. For a period of two (2) years
following the termination of the Executive's employment for any
reason, unless the Executive is entitled to severance benefits under a
severance agreement between the Executive and the Company providing
for payment of benefits upon a termination of employment following a
change in control of the Company and containing covenants made by the
Executive with respect to the subject matter of this Section 7(c) (a
"Severance Agreement"), in which case those covenants contained in
such Severance Agreement shall apply to the Executive in lieu of the
application of this Section 7, 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;
(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 7(b) and 7(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 7, the Company shall include
any and all Subsidiaries of the Company.
(f) The Company's Business. For the purposes of Sections 7(b), 7(c), 7(j)
and 7(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 the
Company may enter, as further described in any and
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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 7(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.
(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
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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 7(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.
(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) The 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
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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 two (2) years 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.
(l) Non-Disparagement. The Executive and his immediate family agree to
refrain from criticizing or making disparaging or derogatory comments
about the Company or any Subsidiary and any of their respective
officers, directors, employees and agents or any products or services
of the Company or any Subsidiary.
(m) 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 7(b), 7(c),
7(h), 7(i), 7(j) 7(k) and 7(l) of this Agreement, without the
necessity of proof of actual damage.
(n) Reasonableness. The Executive acknowledges that the Executive's
obligations under this Section 7 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.
8. Golden Parachute Excise Tax. The amounts payable to the Executive under
Section 6 shall be adjusted as set forth in this Section 8 if the sum (the
"combined amount") of the amounts payable under Section 6 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,
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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 a Gross-Up Payment is due to the Executive pursuant to
this Section 8, the Gross-Up Payment shall be made on the date the lump sum
payments provided in Section 6 are made and shall include all Gross-Up
Payments due in respect of payments made before, payments made at the same
time as, and payments projected to be made after such payment date;
provided, however, that in accordance with Section 280G, such Gross-Up
Payment shall not include taxes imposed by Section 4999 for health
insurance benefits, which shall be paid and withheld by the Company at the
same date that income taxes are withheld from such health insurance
benefits. If at a time subsequent to any payment under Section 6, 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 8 is 10% or more of the combined amount,
the intention of the preceding sentences in this Section 8 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 the foregoing
provisions of this Section 8, Gross-Up Payments, including any additional
payment made subsequent to any payment under Section 6, will be made only
in a manner and to the extent (and at the earliest date(s)) such that
Section 409A of the Code will not be violated.
9. Definitions.
(a) "Board" means the Board of Directors of the Company.
(b) "Cause" means that, prior to the termination of the Employment Period,
the Executive shall have:
(i) committed a felony or a fraud;
(ii) engaged in conduct that brings the Company or any of its
Subsidiaries into substantial public disgrace or disrepute;
(iii) committed gross negligence or gross misconduct with respect to
the Company or any of its Subsidiaries;
(iv) repudiated this Agreement or abandoned employment with the
Company;
(v) failed to follow the directives of the Board or the Chief
Executive Officer and such failure is not cured within five (5)
business days after written notice thereof to the Executive from
the Company;
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(vi) breached any of the agreements in Section 7 hereof;
(vii) breached a material employment policy of the Company which is
not cured within five (5) business days after written notice
thereof to the Executive from the Company; or
(viii) committed any other breach of this Agreement which is material
and which is not cured within thirty (30) days after written
notice thereof to the Executive from the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Disability" means the Executive's having become unable (as determined
in good faith by the Chief Executive Officer), with reasonable
accommodations, to regularly perform the Executive's duties hereunder
by reason of illness or incapacity.
(e) "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.
(f) "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.
(g) "Termination Date" means the date on which the Executive's employment
is terminated.
(h) "Termination for Cause" means the Company's termination of the
Executive's employment for Cause.
(i) "Termination without Cause" means the Company's termination of the
Executive's employment other than a Termination for Cause.
(j) "Voluntary Termination" means Executive's termination of the
Executive's employment for any reason, including retirement.
10. Representations.
(a) Executive Representations. The Executive represents and warrants to
the Company that (i) the execution, delivery and performance of this
Agreement by the Executive does not and will not conflict with,
breach, violate or cause a
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default under any contract, agreement, instrument, order, judgment or
decree to which the Executive is a party or by which the Executive is
bound, (ii) the Executive is not a party to or bound by any employment
agreement, noncompete agreement or confidentiality agreement with any
other person or entity and (iii) 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.
(b) Company Representation. 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.
11. Release Agreement. No payments shall be made under Section 6(c) hereof if
the Executive declines to sign and return a Release Agreement or revokes
such Release Agreement within the time provided therein. If the Executive
becomes entitled to payments under Section 6(c) hereof, the Company shall
deliver to the Executive a copy of the Company's standard form of Release
Agreement within ten (10) business days of the Executive's Termination
Date.
12. Survival. Subject to any limits on applicability contained therein, Section
7 hereof shall survive and continue in full force in accordance with its
terms notwithstanding any termination of the Employment Period.
13. 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.
14. 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.
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15. 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.
16. Complete Agreement. This Agreement embodies the complete agreement and
understanding between the parties with respect to the employment of the
Executive and the subject matter hereof and effective as of its date
supersedes and preempts any prior understandings, agreements or
representations by or between the parties, written or oral, which may have
related to the subject matter hereof in any way, including any prior
Employment Agreements between the Company and the Executive. The severance
benefits provided in Section 6(c) hereof shall be in lieu of any severance
benefits under any plans, programs, policies or practices of the Company;
provided, however, that if the Executive is entitled to benefits under this
Agreement and a Severance Agreement, the Executive will be entitled to
severance benefits under either this Agreement or such Severance Agreement,
whichever agreement provides for greater benefits, but will not be entitled
to benefits under both agreements.
17. Counterparts. This Agreement may be executed in separate counterparts, each
of which shall be deemed to be an original and both of which taken together
shall constitute one and the same agreement.
18. Successors and Assigns. This Agreement shall bind and inure to the benefit
of and be enforceable by the Executive, the Company and their respective
heirs, executors, personal representatives, successors and assigns, except
that neither party may assign any rights or delegate any obligations
hereunder without the prior written consent of the other party. The
Executive hereby consents to the assignment by the Company of all of its
rights and obligations hereunder to any successor to the Company by merger
or consolidation or purchase of all or substantially all of the Company's
assets, provided such transferee or successor assumes the liabilities of
the Company hereunder.
19. 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.
20. Amendment and Waiver. The provisions of this Agreement may be amended or
waived only with the prior written consent of the Company and the
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
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21. 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. This
Agreement shall be administered in a manner consistent with this intent,
and any provision that would cause the Agreement to fail to satisfy Section
409A of the Code shall have no force and effect until amended to comply
with Section 409A of the Code (which amendment may be retroactive to the
extent permitted by Section 409A of the Code and may be made by the Company
without the consent of the Executive).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
USG CORPORATION
By:
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Name: Brian J. Cook
Title: Senior Vice President,
Human Resources
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Executive
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