Exhibit 99.1
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1 December 2005
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For media enquiries please contact James Rickards on |
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Tel: 61 2 8274 5304 or Mob: 0419 731 371. For analyst |
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enquiries please contact Steve Ashe on Tel: 61 2 8274 |
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5246. Mob: 0408 164 011. |
JAMES HARDIE BOARD APPROVES FINAL FUNDING
AGREEMENT AGREEMENT TO BE SIGNED TODAY
James Hardie Industries NV (JHINV) today announced that its Board has approved the Principal
Deed (Final Funding Agreement) to provide long term funding for Australian asbestos-related
personal injury claims that result from exposure to products made by former James Hardie Group
subsidiaries.
Representatives of JHINV and the New South Wales Government are expected to sign the Final Funding
Agreement today in Sydney.
The Final Funding Agreement was negotiated having regard to the terms of the Heads of Agreement
signed on 21 December 2004 by the ACTU, NSW Government, Unions NSW, Asbestos support groups and
James Hardie.
The Final Funding Agreement is a legally binding agreement and sets out the basis on which James
Hardie will provide funding to the SPF. The arrangements include:
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the establishment of the SPF to compensate asbestos sufferers with claims against the
former James Hardie Group subsidiaries, Amaca Pty Ltd, Amaba Pty Ltd or ABN 60 Pty Ltd; |
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initial funding of the SPF by James Hardie of approximately A$154 million; |
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a two year rolling cash buffer in the SPF and an annual contribution in advance,
based on actuarial assessments of expected claims for the following three years, revised
annually; |
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a cap on the annual James Hardie payments to the SPF in all years, except the first
year, initially set at 35% of annual net operating cash flow of the JHINV Group for the
immediately preceding financial year, with provision for the percentage to decline over
time, depending on James Hardies financial performance and the claims outlook; |
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no cap on individual payments to proven claimants; and |
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special compensation arrangements for members of the Baryulgil community for
asbestos-related claims arising from the activities of Marlew Mining Pty Ltd. |
The Final Funding Agreement is subject to a number of conditions precedent, including James Hardie
being satisfied with the tax treatment of the proposed funding arrangements and receiving the
approval of its lenders and shareholders.
KPMG Actuaries has updated its actuarial report in relation to the expected liabilities of the SPF
as at 30 June 2005. The KPMG Actuaries central estimate of the net liabilities is A$1,568 million.
This figure is discounted and net of insurance recoveries and NSW cost savings following recent
reforms by the NSW Government. The undiscounted value of the central estimate (net of NSW cost
savings) of the liabilities is A$3,131 million.
The arrangements are designed to provide funding for Australian proven personal injury claims
whilst preserving the financial health and growth prospects of James Hardie. However, it should be
recognised that because the number of claimants and the amounts that the courts may award is
uncertain and James Hardies financial performance is uncertain over the 40+ year term of the SPF,
no absolute assurance as to sufficiency of funds can be given. No member of the JHINV Group has or
shall have any liability for a shortfall in the SPF.
JHINV Chairman Meredith Hellicar said: The signing of the Final Funding Agreement is another
important step towards implementing the voluntary public commitment James Hardie made in July 2004
to establish a funding mechanism to meet the needs of current and future Australian claimants.
While both parties to the Deed acknowledge that negotiations took longer than we or our
stakeholders initially expected, it was necessary to take the time to achieve a sustainable and
robust agreement in the interests of claimants and, the future financial viability of the fund and
James Hardie.
Today is not the end of the process. Our next steps include obtaining satisfactory tax treatment
of the proposed funding arrangements from the Federal Government, then seeking approval for the funding arrangements from James Hardies lenders and shareholders. These
are our priorities.
The Deed is in the interests of claimants, shareholders, employees and all other stakeholders.
All parties involved in the negotiations have agreed it is in the interests of asbestos claimants
that James Hardie is, and remains, financially strong and able to continue to fund its business
growth. We expect the proposed funding arrangements will allow this as well as fulfil James
Hardies funding commitment.
Throughout the negotiations, claimants continued to receive their compensation payments from the
Medical Research and Compensation Foundation (MRCF) established by James Hardie in February 2001
and we have been told by asbestos support groups and the MRCF that no proven claim has gone
unpaid.
Since the late 1980s, James Hardie has funded over $400 million in asbestos claims. James Hardie
understands the MRCF has funds available to meet proven claims well into 2006, by when it is hoped
this long-term funding arrangement will have come into effect.
END
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FINAL
FUNDING AGREEMENT BRIEFING NOTE
This document provides key facts about the Final Funding Agreement entered into between James
Hardie Industries NV (JHINV) and the New South Wales Government for the provision of long term
funding to meet expected Australian asbestos-related personal injury claims that result from
exposure to products made by former James Hardie Group subsidiaries.
The Final Funding Agreement is consistent in all material respects with the terms of the Heads of
Agreement signed on 21 December 2004 by the ACTU, NSW Government, UnionsNSW, asbestos support
groups and James Hardie.
KEY PRINCIPLES
The two key principles underlying the Final Funding Agreement are:
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The funding arrangement is intended to allow James Hardie to remain profitable, financially
strong and to fund growth; and |
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The funding arrangement is intended to allow payments to be made by a Special Purpose Fund to
all existing and future proven claimants, however no absolute assurance can be given that
funding is sufficient. |
The Final Funding Agreement includes the following key financial terms:
Special Purpose Fund
A Special Purpose Fund (SPF) will be created to compensate proven Australian asbestos claimants. A
majority of directors of the SPF will be appointed by James Hardie.
Annual Actuarial Assessment
There will be an annual actuarial assessment of the liabilities of the SPF in order to take into
account the uncertainties associated with actuaries projections. This will enable the projections
to be regularly updated in line with the actual claims experience and the claims outlook.
Subject to the Annual Cash Flow Cap described below, James Hardie will make payments to the SPF
based on these annual actuarial assessments.
Buffer
Subject to the Annual Cash Flow Cap described below, close to the start of each year James Hardie
will ensure that the SPF has a two-year rolling cash buffer and one years payment based on the
annual actuarial assessment of expected claims for the next three years. James Hardie will also
provide for the expected operating expenses of the SPF for the next year.
Subject to the Annual Cash Flow Cap, there should be a maximum of approximately three years
funding available in the SPF close to the start of each year which, during the course of the year,
should reduce to approximately two years of funding as claims are recognised and paid out. The
funding will then be topped up by James Hardie (subject to the operation of the Annual Cash Flow
Cap) close to the start of the next year so that it again represents approximately three years of
projected claims based on the then current annual actuarial assessment. This dynamic structure
should provide greater security to present and future claimants as the SPF should be better able to
reflect changes in the incidence of claims and/or changes in the financial performance of James
Hardie.
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Annual Cash Flow Cap
There will be a Cash Flow Percentage Cap (CFPC) on the annual James Hardie payments to the SPF in
all years except the first year. It is not intended that there will be any caps on payments by the
SPF to individual claimants. The CFPC will be initially set at 35% of James Hardies net operating
cash flow for the immediate preceding financial year. Net operating cash flow for the purposes of
the cap will be equivalent to James Hardies cash flow provided by operating activities and will be
after taxes, interest, changes in working capital and asbestos payments by James Hardie to the SPF.
The 35% level is designed to ensure that all proven claimants can be paid whilst preserving the
financial health and growth prospects of James Hardie. All parties recognise that James Hardies
continuing success is crucial to the long term security of the future payments. However, because
the number of claimants and the amounts that the courts may award is uncertain and James Hardies
financial performance is uncertain over the 40+ year term of the SPF, no absolute assurance on this
can be given. No member of the JHINV Group has or shall have any liability for a shortfall in the
SPF.
Changes in the level of Cash Flow Percentage Cap
After the year ending 31 March 2011, the Final Funding Agreement provides that the CFPC may reduce
in increments of 5% (to a floor of 10%), provided that the annual contributions are, on average,
lower than the reduced CFPC level for the four years preceding the reduction, and that the CFPC
cannot reduce by more than 5% in any four year period. There is also provision for the CFPC to
increase in certain circumstances, although never above 35% and never by more than one increase of
5% above a previously reduced cap level.
The practical impact of the above cap, and conditions for changes in the level of the cap, is that
the earliest that the CFPC could step down would be to 30% in the year ending 31 March 2012, to 25%
for 2016, to 20% for 2020, to 15% for 2024 and to 10% for 2028 depending on the claims experience, anticipated claims payments and the financial performance of
James Hardie.
Tax
James Hardies payment obligations to the SPF (other than in respect of the initial funding) are
conditional upon binding legislation or a binding private ruling which confirms the tax
deductibility of the payments by James Hardie to the SPF and the exemption of the SPF from
Australian income tax and thereafter not being subject to a change of tax law which results in, or
which will result in, the taxation treatment ceasing.
Initial Funding
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James Hardie will provide initial funding to the SPF on commencement of the Final
Funding Agreement. The basis upon which the initial funding has been calculated is set out
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A$ MILLION |
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Discounted Central Estimate Valuation for two years nine
months to 31/3/2008 (Gross claims) |
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219 |
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Buffer |
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135 |
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Year 3 discounted payment |
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84 |
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Estimated SPF operating expenses in 9 months to 31 March 2006 |
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Estimated assets to be contributed by the MRCF as at 30 June
2005 |
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(94 |
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Part prepayment of payments for Financial Years FY07 and FY08 |
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22 |
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Notes:
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The Discounted Central Estimate Valuation is based on the actuarial assessment of
expected claims for the two years nine months ending 31 March 2008 contained in the KPMG
Actuarial Report as at 30 June 2005. |
Conditions Precedent
The implementation of the Final Funding Agreement is subject to a number of conditions precedent,
including:
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legislative change by NSW Government to facilitate implementation of the agreement; |
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James Hardie being satisfied that payments by JHINV to the SPF will be fully tax deductible expenses of James
Hardie in the years in which they are incurred and the SPF will be exempt from tax in respect of its income; |
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approval by James Hardies lenders; |
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receipt of an independent experts report confirming the Final Funding Agreement is in the best interests of
JHINV;· |
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JHINV Board determination that the Final Funding Agreement is in JHINVs interests; and |
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approval by James Hardies shareholders. |
Timetable
James Hardie continues to have discussions with the Australian Taxation Office and Federal Treasury
in relation to satisfying the tax condition precedent.
After the tax condition precedent is satisfied, James Hardie will complete an Explanatory
Memorandum in respect of the Final Funding Agreement (including the full details of the Final
Funding Agreement and the Independent Experts Report) and convene a shareholder meeting to consider
the Final Funding Agreement.
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Media Enquiries:
James Rickards
Telephone: 61 2 8274 5304
Mobile: 0419 731 371
Email:
[email protected]
Facsimile: 61 2 8274 5218
Analyst Enquiries:
Steve Ashe
Telephone: 61 2 8274 5246
Mobile: 0408 164 011
Email:
[email protected]
Facsimile: 61 2 8274 5218
www.jameshardie.com
Disclaimer
This Company Statement 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 such forward-looking statements include:
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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 economic performance; |
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statements about product or environmental liabilities; and |
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expectations about payments to a special purpose fund for the compensation of proven
asbestos-related personal injury and death claims. |
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 in our Form 20-F, 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 Group subsidiaries; 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 transition of our new senior management.
We caution you that the foregoing list of factors is not exclusive 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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