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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.
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(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 per
