Exhibit 99.1
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15 February 2007
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For media enquiries please call Cameron Hamilton on: |
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Tel: (02) 8274 5304 or Mob: 0425 344 688. |
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For analyst enquiries please call Steve Ashe on: |
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Tel: (02) 8274 5246 Mob: 0408 164 011. |
James Hardie notified of civil proceedings by ASIC
Following the close of trading on the ASX on 14 February 2007, the Australian Securities &
Investments Commission (ASIC) advised the Company that it had commenced civil proceedings against
James Hardie Industries NV (the Company) and others in the Supreme Court (the Court) of New South
Wales (the Proceedings). A copy of ASICs letter and an extract from the originating process
setting out the details of ASICs application are attached.
The Proceedings concern alleged contraventions by the Company, its former subsidiary ABN 60 Pty
Limited, and Michael Brown, Michael Gillfillan, Meredith Hellicar, Martin Koffel, Peter Macdonald,
Philip Morley, Geoffrey OBrien, Peter Shafron, Gregory Terry and Peter Willcox of certain
provisions of the Corporations Law and/or the Corporations Act connected with the affairs of the
Company, ABN 60 Pty Limited, Amaca Pty Limited and Amaba Pty Limited during the period February
2001 to June 2003. The subject matter of the allegations varies between individuals.
In the Proceedings, ASIC seeks:
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declarations regarding the alleged contraventions; |
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orders for pecuniary penalties in such amount as the Court thinks
fit up to the limits specified in the Corporations Act; |
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orders that Messrs Brown, Gillfillan, Koffel, Macdonald, Morley,
OBrien, Shafron, Terry and Willcox and Ms Hellicar be prohibited
from managing a corporation for such period as the Court thinks
fit; |
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an order that the Company execute a deed of indemnity in favour of
ABN 60 Pty Limited as referred to in the attached letter from
ASIC; and |
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its costs of the Proceedings |
These Proceedings are first before the Court on 15 March 2007. The Company will be responding to
the Proceedings in accordance with the timetable set by the Court.
As referred to in ASICs letter, ASIC has advised that it will not pursue the claim for indemnity
if the conditions precedent to the Final Funding Agreement are satisfied.
The Company intends to confirm with ASIC that the recent satisfaction of the conditions precedent
to and implementation of the Amended and Restated Final Funding Agreement dated 21 December 2006
satisfies ASIC in this regard.
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The Company has historically granted indemnities to certain of its directors and officers as is
common practice for publicly listed companies. The Companys articles of association also contain
an indemnity for directors and officers. In addition, the Company has granted indemnities to
certain of its former related bodies corporate (including ABN 60 Pty Limited) which, among other
things, may require the Company to indemnify those entities against indemnities they in turn have
historically granted their directors and officers.
The Joint and Supervisory Boards have established a special matter committee comprising all
non-conflicted directors to consider the corporate governance implications for the Company and to
deal with the Proceedings.
The Company is not in a position to comment any further at this time.
END
Media Enquiries:
Cameron Hamilton
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Telephone: |
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61 2 8274 5304 |
Mobile: |
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61 425 344 688 |
Email: |
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[email protected] |
Facsimile: |
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61 2 8274 5218 |
Investor and Analyst Enquiries:
Steve Ashe Vice President Investor Relations
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Telephone: |
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61 2 8274 5246 |
Mobile: |
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61 408 164 011 |
Email: |
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[email protected] |
Facsimile: |
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61 2 8274 5218 |
www.jameshardie.com
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Disclaimer
The exhibit attached to this Form 6-K contains forward-looking statements. We may from time to
time make forward-looking statements in our periodic reports filed with or furnished to the United
States Securities and Exchange Commission on Forms 20-F and 6-K, in our annual reports to
shareholders, in offering circulars and prospectuses, in media releases and other written materials
and in oral statements made by our officers, directors or employees to analysts, institutional
investors, representatives of the media and others. Examples of forward-looking statements include:
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expectations about the timing and amount of payments to the Asbestos Injuries
Compensation Fund (AICF), a special purpose fund for the compensation of proven
asbestos-related personal injury and death claims; |
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expectations with respect to the effect on our financial statements of those payments; |
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expectations that our credit facilities will be extended or renewed; |
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projections of our operating results or financial condition; |
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statements regarding our plans, objectives or goals, including those relating to
competition, acquisitions, dispositions and our products; |
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statements about our future performance; and |
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statements about product or environmental liabilities. |
Words such as believe, anticipate, plan, expect, intend, target, estimate, project,
predict, forecast, guideline, should, aim and similar expressions are intended to
identify forward-looking statements but are not the exclusive means of identifying such statements.
Forward-looking statements involve inherent risks and uncertainties. We caution you that a number
of important factors could cause actual results to differ materially from the plans, objectives,
expectations, estimates and intentions expressed in such forward-looking statements. These factors,
some of which are discussed under Risk Factors beginning on page 5 of our Form 20-F filed on 29
September 2006 with the Securities and Exchange Commission, include but are not limited to: all
matters relating to or arising out of the prior manufacture of products that contained asbestos by
current and former James Hardie subsidiaries; required contributions to the AICF and the effect of
foreign exchange on the amount recorded in our financial statements as an asbestos provision;
compliance with and changes in tax laws and treatments; competition and product pricing in the
markets in which we operate; the consequences of product failures or defects; exposure to
environmental, asbestos or other legal proceedings; general economic and market conditions; the
supply and cost of raw materials; the success of our research and development efforts; our reliance
on a small number of product distributors; compliance with and changes in environmental and health
and safety laws; risks of conducting business internationally; compliance with and changes in laws
and regulations; foreign exchange risks; the successful implementation of new software systems; and
the successful implementation of the internal control over financial reporting requirements of
Section 404 of the Sarbanes-Oxley Act of 2002, as codified by Item 308 of regulation S-K. We
caution you that the foregoing list of factors is not exhaustive and that other risks and
uncertainties may cause actual results to differ materially from those in forward-looking
statements. Forward-looking statements speak only as of the date they are made.
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ASIC |
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Australian Securities & Investments Commission |
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JEFFREY LUCY AM |
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Chairman |
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14 February 2007
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No.1 Martin Place, Sydney |
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GPO Box 9827 Sydney NSW 2001 |
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DX 653 Sydney |
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Company Secretary/ Disclosure Officer
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Telephone: (02) 9911 2033 |
James Hardie Industries NV
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Facsimile: (02) 99112010 |
Level 3 |
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22 Pitt Street |
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SYDNEY NSW 2000 |
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Attn: Mr Marcin Friek
Dear Sir
Australian Securities and Investments Commission (ASIC) v Peter Macdonald and others Matter No 1490 of 2007
I advise that ASIC has today commenced civil penalty proceedings against James Hardie
Industries NV (JHINV) and others in the Supreme Court of NSW. I attach photocopies of the sealed
copies of the Originating Process and Affidavit in support. I also attach a copy of a Statement of
Claim, which is referred to in the Originating Process.
ASIC is currently attending to formal service of these documents on the relevant parties, including
the solicitors for JHINV.
You will note that one of the claims made against JHINV relates to the cancellation of partly paid
shares in ABN 60 Pty Limited. The claim seeks a mandatory injunction
that JHINV execute a deed of
indemnity in favour of ABN 60 Pty Limited for an indemnity up to a maximum of $1.9 billion, or such
amount as ABN 60 Pty Limited or its directors consider is necessary to ensure that ABN 60 Pty
Limited remains solvent.
Given the disclosure obligations of JHINV and to ensure that investors are adequately informed
about the nature and effect of ASICs proceedings, I advise that ASIC will not pursue the claim of
indemnity of $1.9 billion if the conditions precedent to the Final Funding Agreement, being those
conditions referred to in your announcement to the Australian Securities Exchange dated 1 December
2005, are satisfied.
ASIC proposes to include a statement of this effect in any media announcements and authorises you
to disclose this letter to the ASX in any announcement you may wish to make.
Yours faithfully
Jefferey Lucy AM
Chairman
Form 2
(rule 2.2)
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IN THE SUPREME COURT OF NEW SOUTH WALES |
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DIVISION: EQUITY
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No. 1490 of 2007 |
REGISTRY: SYDNEY |
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IN THE MATTER OF: James Hardie Industries NV, ABN 60 Pty Ltd (ACN: 000 009 263),
Amaca Pty Ltd (ACN 000 035 512) and Amaba Pty Ltd (ACN 000 387 342)
AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
Plaintiff
PETER DONALD MACDONALD and Others
(listed in schedule A)
Defendants
[SEAL]
ORIGINATING PROCESS
A. DETAILS OF APPLICATION
This is an application made under ss 206C, 206E, 1317E, 1317G and 1324(1) of the Corporations Act 2001 (Cth) (the Corporations Act).
The First to Tenth Defendants were the directors and/or officers of the eleventh and some of them
were directors and officers of the Twelfth Defendant.
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Filed by:
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DX 653 SYDNEY |
Georgina Hayden
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Tel: 9911 2000 |
Solicitor for the
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Fax: 9911 2034 |
Australian Securities & Investments Commission
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Reference: John Chambers/Georgina |
Level 18, No. 1 Martin Place
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Hayden |
SYDNEY NSW 2000 |
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The Plaintiff claims that each of the First to Tenth Defendants have contravened
section 180(1) of the Corporations Law (as carried over into the Corporations Act) and the
Corporations Act, and in the case of the First Defendant, section 181(1) of the Corporations Law
(as carried over into the Corporations Act) and the Corporations Act, in relation to statements
made by, or on behalf of, the Eleventh and Twelfth Defendants, and in relation to the Eleventh
Defendants obligation to disclose information to the market and its members.
Further, the Plaintiff claims that the Third Defendant contravened s 180(1) of the Corporations
Law, as carried over into the Corporations Act) by his conduct in relation to each of Amaca Pty
Ltd and Amaba Pty Ltd, which caused them to enter into a deed.
Further, the Plaintiff claims that the Eleventh Defendant (JHIL) contravened ss 412, 995(2), 999
and 1001A of the Corporations Law (as carried over in to the Corporations Act) in relation to
statements made by it, or on its behalf, and in relation to its duty to disclose information to the
market and its members.
Further, the Plaintiff claims that the Twelfth Defendant contravened ss 1041E and 1041H of the
Corporations Act, in relation to statements made by it, or on its behalf, and that it contravened s
674(2) of the Corporations Act.
Accordingly, the Plaintiff seeks declarations of contravention against each of the First to Twelfth
Defendants, pecuniary penalties against each of the First to Tenth and Twelfth Defendants,
disqualification orders against the First to Tenth Defendants and an order for indemnity against
the Twelfth Defendant.
On the facts stated in the statement of claim, which has been filed in these proceedings, the
Plaintiff claims:
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Declarations, pursuant to s 1317E of the Corporations Act that: |
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The First to Tenth and Twelfth Defendants contravened s 180(1) of the
Corporations Law (as taken to be included in the Corporations Act by s 1401 of the
Corporations Act) and the Corporations Act, in relation to JHIL; |
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(b) |
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The First Defendant contravened s 181 (1) of the Corporations Law (as taken to be
included in the Corporations Act by s 1401 of the Corporations Act)
and the
Corporations Act, in relation to JHIL; |
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(c) |
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The First Defendant contravened s 181(1) of the Corporations Act, in relation
to JHINV; |
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The Twelfth Defendant contravened s 674(2) of the Corporations Act; and |
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The Third Defendant contravened s 180(1) of the Corporations Law (as taken to
be included in the Corporations Act by s 1401 of the Corporations Act) in relation
to each of Amaca Pty Ltd and Amaba Pty Ltd. |
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Declarations that the Eleventh Defendant: |
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contravened s 995 of the Corporations Law (as taken to be included in the
Corporations Act by s 1401 of the Corporations Act) and the Corporations Act; |
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(b) |
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contravened s 999 of the Corporations Law (as taken to be included in the
Corporations Act by s 1401 of the Corporations Act) and the Corporations Act; |
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contravened s 1001A of the Corporations Law (as taken to be included in the
Corporations Act by s 1401 of the Corporations Act); |
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contravened s 412 of the Corporations Law (as taken to be included in the
Corporations Act by s 1401 of the Corporations Act) and the Corporations Act; |
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Declarations that the Twelfth Defendant contravened: |
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s 1041E of the Corporations Act; and |
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s 1041H of the Corporations Act. |
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Orders pursuant to s 1317G of the Corporations Act, that each of the First to
Tenth and Twelfth Defendants pay the Commonwealth a pecuniary
penalty, in relation to each
civil penalty contravention pleaded against them, in such amount as the Court thinks fit. |
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Orders pursuant to s 206C of the Corporations Act, that the First to Tenth Defendants be
prohibited from managing a corporation, for such period as the Court thinks fit. |
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Orders pursuant to s 206E of the Corporations Act, that the First to Seventh and Tenth
Defendants be prohibited from managing a corporation, for such period
as the Court thinks
fit. |
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An order pursuant to s 1324(1) of the Corporations Act, that
the Twelth Defendant
execute a deed of indemnity in favour of JHIL, providing that it indemnify JHIL for up
to a maximum amount of $1.9 billion for such amount as JHIL, or its directors,
consider, after giving careful consideration, is necessary to ensure that JHIL is able to
pay its debts, as and when they fall due, and for such amount as JHIL, or its directors,
reasonably believe is necessary to ensure that JHIL remains solvent. |
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Costs. |
Date: 14 February 2007
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/s/ Georgina Hayden
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Georgina Hayden
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Solicitor for the Australian
Securities & Investments |
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Commission |
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This
application will be heard by the Supreme Court of New South Wales at Queens Square at 11 am on 15/3/07
SCHEDULE A
PARTIES
AUSTRALIAN
SECURITIES & INVESTMENTS COMMISSION
Plaintiff
PETER DONALD MACDONALD
First Defendant
PETER JAMES SHAFRON
Second Defendant
PHILLIP GRAHAM MORLEY
Third Defendant
MICHAEL ROBERT BROWN
Fourth Defendant
MICHAEL
JOHN GILLFILLAN
Fifth Defendant
MEREDITH HELLICAR
Sixth Defendant
MARTIN KOFFEL
Seventh Defendant
GEOFFREY FREDERICK OBRIEN
Eighth Defendant
GREGORY JAMES TERRY
Ninth Defendant
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PETER
JOHN WILLCOX
Tenth Defendant
ABN 60 PTY LTD (ACN: 000 009 263)
Eleventh Defendant
JAMES HARDIE INDUSTRIES NV
Twelfth Defendant
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