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EXHIBIT 10 (g)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of January,
2000, by and between USG CORPORATION, a Delaware corporation (hereinafter,
together with its subsidiaries, collectively referred to as the "Corporation")
and _________________ (the "Executive");
W I T N E S S E T H:
WHEREAS, the Executive has had extensive experience in the business and
affairs of the Corporation and is a valuable member of management;
WHEREAS, the Corporation wishes to assure itself of the continued
availability of the Executive's services, and the Executive wishes to assure the
Executive's continued employment, all on and subject to the terms and conditions
hereinafter set forth; and
WHEREAS, the Executive, in the course of the Executive's employment
with the Corporation, has become and shall continue to become familiar with the
Corporation's near-permanent relationships with its customers, trade secrets and
other confidential information concerning the Corporation, including the
information referred to in Paragraph 7 hereof, and the Executive's services have
been and shall be of special, unique and extraordinary value to the Corporation.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
1. Employment and Term. The Corporation hereby employs the Executive,
and the Executive hereby accepts employment by the Corporation, for an initial
term extending through the close of business on December 31, 2000 (herein, as
the same may be extended as provided in the next sentence, referred to as the
"term of this Agreement"), with such title and in such capacity and in the
performance of such executive and managerial duties as may be determined or
assigned to the Executive from time to time by or under the authority of the
Board of Directors of the Corporation. The term of this Agreement shall be
automatically extended for successive two-year terms expiring at the
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close of business on the second December 31st following the commencement of each
such extended term unless the Corporation has notified the Executive of its
election not to extend the term of this Agreement not less than 120 days before
the expiration of the then current term, in which case this Agreement shall
terminate at the expiration of the then current term.
2. Performance. The Executive agrees to devote the Executive's full
attention and best efforts throughout the term of this Agreement to the
performance of the duties assigned to the Executive by or under the authority of
the Board of Directors of the Corporation, all in the interest of the
Corporation and the successful operation of its business. The Executive shall
not directly or indirectly engage in any other business or commercial activity
during the Executive's employment hereunder without the prior consent of the
Board of Directors or Chief Executive Officer of the Corporation or his
designee, as appropriate. It is understood, however, that the Executive may
serve from time to time as a director of other business corporations and as a
director, trustee, or in other responsible capacities with charitable and public
services organizations, provided only that, absent approval of the Board of
Directors or Chief Executive Officer of the Corporation or his designee, as
appropriate, the same does not materially conflict or interfere with the
performance of the Executive's duties hereunder.
3. Compensation. The Corporation shall pay to the Executive as
compensation for the Executive's services hereunder a salary at the rate of not
less than ___________ dollars and ________ cents ($ , . ) per annum in regular
pay installments at regular pay intervals. Such rate shall be increased to any
greater salary, if any, that shall have been fixed for the Executive by the
Board of Directors or Chief Executive Officer of the Corporation or his
designee, as appropriate. During such time, if any, as the Executive is deemed a
"continuing employee" under Paragraph 5 below, such salary shall also include
annual incentive awards, computed based solely on the par award opportunity
under the applicable Annual Management Incentive Programs (which shall be based
upon the opportunity applicable in the year of termination), prorated for
partial years. Additionally, the Executive, during the Executive's employment
hereunder, shall be entitled to participate in all benefits in which he normally
would be entitled to participate as an employee and key executive of the
Corporation, including, but not limited to, all retirement, investment, stock
ownership, stock option and other equity incentive plans, all life, health and
disability insurance, and all salary continuation plans,
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together with bonuses and such other grants of additional compensation or
supplemental benefits as may be granted from time to time by the Board of
Directors or Chief Executive Officer of the Corporation, as appropriate.
4. Vacations; Business Expenses. The Executive shall be entitled to
normal vacations consistent with the present practices of the Corporation, as
the same may be altered from time to time. The Corporation shall pay or
reimburse all of the reasonable expenses incurred by the Executive in
furtherance of or in connection with the business of the Corporation, including,
but not limited to, all such travel and entertainment expenses. If any such
expenses are paid in the first instance by the Executive, the Corporation will
make reimbursement therefor upon submission of vouchers or other documents
supporting such expenses and their relationship to the business of the
Corporation.
5. Termination. In the event the Executive during the term of this
Agreement is discharged from employment by the Corporation without cause and is
not promptly appointed or elected by the Corporation or any related or
affiliated company to a position which carries with it salary and benefits at
least equal to those contemplated by this Agreement, or is constructively
discharged by the Corporation, the Executive may at the Executive's option treat
such action as a material breach and violation of the provisions of this
Agreement. For purposes of this Agreement, "constructive discharge" means any
circumstance in which the Executive elects to terminate the Executive's
employment with the Corporation because (i) the Corporation has committed a
material breach of this Agreement, (ii) the Executive has given the Corporation
written notice of such material breach, (iii) the Corporation has failed to
fully remedy such material breach within thirty (30) days of delivery of the
Executive's written notice, and (iv) the Executive by written notice to the
Corporation within ninety (90) days of the expiration of such thirty (30) days
period terminates the Executive's employment. In any such case, the Executive
shall be deemed a "continuing employee" of the Corporation, whether or not the
Executive is permitted by the Corporation to render services under this
Agreement, and the Executive then shall be entitled to continuation of salary
payable in the manner specified in Paragraph 3 above and at the then existing
rate (but in no event less than the rate specified in said Paragraph 3), such
continuation to be for the balance of the then current term of this Agreement or
a period of two (2) years, whichever is greater. If deemed a "continuing
employee" under the immediately preceding sentence, the Executive additionally
shall be entitled to continuation of all
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other benefits specified in Paragraph 3 above (subject to periodic changes in
such benefits as are applicable generally to all participants in the plans) for
the balance of the then current term of this Agreement or a period of two (2)
years, whichever is greater (and, in the event that, with respect to any of such
benefits, the Corporation is unable to provide the continuation of one or more
of such benefits described above, the Corporation shall provide benefits
comparable to those which the Executive would otherwise be entitled to receive
under such plans and programs to the Executive at the Corporation's expense).
For purposes of the foregoing, (a) any stock option granted to the Executive
under any long-term equity plan of the Corporation ("Equity Plan") but not yet
exercisable, (b) any restricted stock granted to the Executive under any Equity
Plan and not yet freed of restrictions, and (c) any other equity awards or
incentives shall be dealt with, for time and performance vesting and all other
purposes, on the assumption that the Executive has continued as an employee of
the Corporation during the period in which the Executive is a continuing
employee under this Agreement. The Corporation shall also reimburse the
Executive for all reasonable legal fees and expenses incurred by the Executive
in order to enforce this Agreement for a right or benefit wrongfully denied by
the Corporation, provided, however, that legal fees incurred by the Executive
for general advice of counsel in the absence of such wrongful denial are not
reimbursable by the Corporation. The provisions of the four immediately
preceding sentences shall constitute the Executive's sole remedy in the event of
discharge without cause (or constructive termination). In the event discharge is
for cause, none of such provisions shall apply. For purposes of this Paragraph
5, "cause" shall mean (a) willful and continued failure by the Executive to
substantially perform the Executive's duties after a demand for substantial
performance has been delivered by the Chief Executive Officer of the Corporation
specifically identifying the manner in which it is believed the Executive has
not substantially performed the Executive's duties, or (b) willful misconduct by
the Executive which is materially injurious to the Corporation or any related or
affiliated company. The right of the Executive to receive all continued benefits
to which the Executive may be entitled under this Paragraph 5 is further
contingent upon the Executive's compliance with the terms of this Agreement,
including Paragraphs 7, 8, 9 and 10.
6. Disability or Death. If during the term of this Agreement the
Executive shall become unable to perform the Executive's duties hereunder by
reason of disability resulting from illness or other incapacity and such
disability shall continue for six (6) consecutive months, then compensation
payable under Paragraph 3 above shall be continued at the rate in effect
immediately prior to such disability and for the remainder of the period of
disability (but
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not beyond the end of the unexpired current term of this Agreement); provided,
however, that any disability payments otherwise payable pursuant to this
Paragraph 6 shall be reduced by the amount of any other payments received under
any retirement plan or other disability or income plan or policy maintained in
force and effect by the Corporation during such period. In the event of the
Executive's death during the term of this Agreement, salary payments specified
under Paragraph 3 above shall cease as of the end of the month in which death
has occurred, and, in addition to any other payments made under any group life
or other plan, the Corporation thereafter shall make payments to the beneficiary
or beneficiaries designated in writing by the Executive (or if there be none, to
the Executive's estate) at a rate equal to fifty percent (50%) of the full rate
of salary in effect at the time of such death (without regard to any prior
reduction in rate under the disability provisions of this Paragraph 6), such
payments to be made at regular pay intervals and to be continued through the
remainder of the then current term of this Agreement.
7. Covenant Not to Compete. The Executive acknowledges that in the
course of the Executive's employment with the Corporation, the Executive has
become and shall continue to become familiar with the Corporation's
near-permanent relationships with its customers, trade secrets and other
confidential information concerning the Corporation, including, but not limited
to, information, data, and plans, both technical and business in nature, such as
customer lists and records, sales records and marketing plans, research and
technical reports and records, formulas, processes, inventions, patent
applications, designs and drawings, instructions and training manuals, business
and financial information, salary information, contracts and other legal
documents, and correspondence to which the Corporation has been a party, and
that the Executive's services have been and shall be of special, unique and
extraordinary value to the Corporation. Therefore, while employment continues
under this Agreement (including any period in which the Executive is deemed a
"continuing employee" pursuant to Paragraph 5 above) and for a period of
eighteen (18) months thereafter (the "Non-Compete Period"), the Executive shall
not engage or participate, directly or indirectly, as a partner, officer,
director, employee, advisor, or otherwise, in any corporation, business, or
activity which competes or is then competitive with the Corporation or any of
its affiliated companies in the manufacture or sale of any line of products in
any state of the United States, any province of Canada and any state of Mexico
where the Corporation then does business, provided, however, that the foregoing
restriction shall not be construed to prevent the Executive from owning or
acquiring less than five percent (5%) of the publicly traded voting stock of a
competing corporation; and
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provided, further, that if any court of competent jurisdiction should hereafter
determine in the course of litigation that the provisions of this Paragraph 7
are unreasonable with respect to length of time, geographic areas or activities
restrained, then this Paragraph 7 shall be construed to operate only for such
period of time, in such geographic areas, and in respect of such activities as
said court shall determine to be the maximum reasonable restraint in the
circumstances.
8. Confidential Information. The Executive shall not during the term
of this Agreement or at any time thereafter use for the Executive's benefit or
the benefit of others or disclose to others any information, data, or plans,
whether technical or business in nature, which are treated as confidential by
the Corporation, except to the extent such use or disclosure is required by or
necessarily incident to performance of duties by the Executive under this
Agreement and except to the extent such information, data, or plans have become
a matter of public knowledge other than as a result of the Executive's breach of
this Agreement. For purposes of this Paragraph 8, such information, data, or
plans shall include, but not be limited to, research and technical reports and
records, formulas, processes, inventions, patent applications, designs and
drawings, instructions and training manuals, business and financial information,
customer lists and records, sales records and marketing plans, salary
information, contracts and other legal documents, and correspondence to which
the Corporation has been a party. The Executive shall deliver to the Corporation
at the termination of the Executive's employment period or at any other time the
Corporation may request, all memoranda, notes, plans, records, reports, computer
tapes, printouts and software and other documents and data (and copies thereof)
relating to the confidential information, Work Product (as defined below) or the
business of the Corporation which the Executive may then possess or have under
the Executive's control.
9. Inventions and Patents. The Executive hereby assigns to the
Corporation all right, title, and interest to all patents and patent
applications, all inventions, innovations, improvements, developments, methods,
designs, analyses, drawings, reports and all similar or related information (in
each case whether or not patentable), all copyrights and copyrightable works,
all trade secrets, confidential information and know-how, and all other
intellectual property rights that are conceived, reduced to practice, developed
or made by the Executive while employed by the Corporation and that (i) relate
to the Corporation's actual or anticipated business, research and development or
existing or future products or services; or (ii) are conceived, reduced to
practice, developed or made using any of the equipment, supplies,
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facilities, assets or resources of the Corporation (including, but not limited
to, intellectual property rights) ("Work Product"). The Executive shall promptly
disclose such Work Product to the Corporation and perform all actions reasonably
requested by the Corporation (whether during or after the Executive's period of
employment with the Corporation) to establish and confirm the Corporation's
ownership (including, without limitation, assignments, consents, powers of
attorney, applications and other instruments).
10. Non-Solicitation. The Executive acknowledges that in the course of
the Executive's employment with the Corporation, the Executive has become and
shall become familiar with the Corporation's near-permanent relationships with
its customers, trade secrets and other confidential information concerning the
Corporation, including, but not limited to information, data, and plans, both
technical and business in nature, such as customer lists and records, sales
records and marketing plans, research and technical reports and records,
formulas, processes, inventions, patent applications, designs and drawings,
instructions and training manuals, business and financial information, salary
information, contracts and other legal documents, and correspondence to which
the Corporation has been a party, and that the Executive's services have been
and shall be of special, unique and extraordinary value to the Corporation.
Therefore, while employment continues under this Agreement (including any period
in which the Executive is deemed a "continuing employee" pursuant to Paragraph 5
above) and for eighteen (18) months thereafter, the Executive shall not directly
or indirectly through another entity (other than in connection with the
performance of the Executive's duties for the Corporation) (i) induce or attempt
to induce any employee of the Corporation to leave the employ of the
Corporation, or in any way interfere with the relationship between the
Corporation and any employee thereof, (ii) hire any person who was an employee
of the Corporation at any time during the Executive's period of employment with
the Corporation or (iii) induce or attempt to induce any customer, supplier,
licensee, licensor, franchisee or other business relation of the Corporation to
cease doing business with the Corporation or in any way interfere with the
relationship between any such customer, supplier, licensee, licensor, franchisee
or business relation and the Corporation, including, without limitation, by
making any negative statements or communications about the Corporation.
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11. Acknowledgments by Executive. Executive hereby agrees and
acknowledges (i) that the Corporation has a protectable interest in the
information, data, and plans, both technical and business in nature, which are
treated as confidential by the Corporation, as well as the goodwill and
specialized knowledge acquired by the Executive during the course of the
Executive's employment with the Corporation; (ii) that the provisions of
Paragraphs 7, 8, 9 and 10 of this Agreement are in consideration of (a)
employment with the Corporation, (b) employment for a fixed period of time, (c)
eligibility to participate in the Corporation's benefit plans and enter into
this extended Employment Agreement and any extended termination compensation
agreement with the Corporation, (d) access to and use of confidential
information, including but not limited to information, data, and plans, both
technical and business in nature, such as customer lists and records, sales
records and marketing plans, research and technical reports and records,
formulas, processes, inventions, patent applications, designs and drawings,
instructions and training manuals, business and financial information, salary
information, contracts and other legal documents, and correspondence to which
the Corporation has been a party, (e) access to and the Executive's development
on behalf of the Corporation of near-permanent relationships with the
Corporation's customers, and (f) additional good and valuable consideration as
set forth in this Agreement; (iii) that the restrictions contained in Paragraphs
7, 8, 9 and 10 do not preclude the Executive from earning a livelihood, nor do
they unreasonably impose limitations on the Executive's ability to earn a
living, and that the potential harm to the Corporation of the non-enforcement of
Paragraphs 7, 8, 9 and 10 outweighs any harm to the Executive of their
enforcement by injunction or otherwise; and (iv) that the Executive has
carefully read this Agreement, has given careful consideration to the restraints
imposed upon the Executive by this Agreement and is in full accord as to their
necessity for the reasonable and proper protection of the Corporation's near
permanent customer relationships and confidential information, data and plans,
and that each and every restraint imposed by this Agreement is reasonable with
respect to subject matter, time period and geographical area.
12. Specific Performance. In the event of the Executive's breach or
threatened breach of Paragraph 7, 8, 9 or 10 of this Agreement, the Executive
acknowledges that such breach would give rise to irreparable harm to the
Corporation incapable of compensation by money damages, and therefore agrees
that the Corporation shall be entitled to a temporary restraining order and an
injunction and may pursue all other available remedies for such breach or
threatened breach. The Executive further acknowledges that, if the Corporation
shall prevail in demonstrating any
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such breach or threatened breach or obtaining any such remedy, the Corporation
shall be entitled to recover from the Executive all reasonable legal fees and
expenses incurred by the Corporation in enforcing its rights under this
Agreement.
13. Assignment and Delegation. The Corporation may assign all rights
and delegate all duties under this Agreement to a parent corporation,
subsidiary, affiliated company or successor to all or a portion of its business
which assumes in writing all obligations imposed by this Agreement. Apart from
the foregoing, this Agreement is personal between the parties, and neither party
shall assign rights or attempt to delegate duties hereunder without the prior
written consent of the other.
14. Modifications and Waivers; Entire Agreement. No provisions of this
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in a writing signed by the Executive and the Chief
Executive Officer of the Corporation. No waiver by either party hereto at any
time of any breach by the other party hereto of any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
the same or similar provisions or conditions at the same or any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. This Agreement
supersedes and replaces and by its own force terminates any prior Employment
Agreement between the Executive and the Corporation or a subsidiary or affiliate
thereof. It is understood and agreed, however, that all rights of the Executive
under any termination compensation agreement or severance plan or agreement to
which the Corporation and the Executive are parties shall endure. It is further
understood and agreed that any rights of the Executive under this Agreement
shall be assertable or operative in the alternative and not in addition to any
rights of the Executive under any such termination compensation agreement or
severance plan or agreement.
15. Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
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16. Governing Law. The validity, interpretation, construction, and
performance of this Agreement shall be governed by the laws of the State of
Illinois.
17. Notices. Any and all notices which may be given hereunder by
either party to the other shall be sufficient if in writing and sent by
registered mail to such other party at their last known address.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above stated.
USG CORPORATION:
By:
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Xxxxx X. Xxxx
Vice President,
Human Resources
ATTEST:
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Xxxx X. Xxxxxxx
Corporate Secretary
EXECUTIVE:
---------------------------------
Name:
WITNESS:
-----------------------------
Name:
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