exv10w38






Exhibit 10.38




 






AGREEMENT ON THE INVOLVEMENT OF EMPLOYEES




 






Between



James Hardie Industries N.V.

and JHCBM plc



(the “Participating Companies I”)



AND



James Hardie International Holdings N.V.

and JHIHCBM plc



(the “Participating Companies II”)



and



the Special Negotiating Bodies



(as SNBs)



DATED 10 FEBRUARY 2010



 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Articles	 	 	 	Page
	1
	 	Definitions and Interpretation	 	 	3	 
	2
	 	Scope of the Agreement	 	 	5	 
	3
	 	The procedure for the Involvement of Employees	 	 	5	 
	3.2-3.4
	 	Annual call for interest – EU Employees	 	 	5	 
	3.5-3.8
	 	Annual call for interest Other Group Employees	 	 	6	 
	3.9-3.11
	 	Information and Consultation – per occurence	 	 	7	 
	3.12-3.13
	 	Information procedure	 	 	8	 
	3.14-3.15
	 	Consultation procedure	 	 	8	 
	3.16-3.18
	 	Topics regarding Information and Consultation	 	 	9	 
	4
	 	Participation	 	 	10	 
	5
	 	Rights of the Interested Employees	 	 	10	 
	6
	 	The date of entry into force of the Agreement and its duration	 	 	11	 
	7
	 	Employee Representative Body	 	 	11	 
	8
	 	The instances in which the agreement must be renegotiated	 	 	12	 
	9
	 	Relation to national information, consultation and participation laws and regulations	 	 	12	 
	10
	 	Indemnification	 	 	12	 
	11
	 	Governing Law; Jurisdiction and Remedies	 	 	12	 






ii









 





AGREEMENT ON THE INVOLVEMENT OF EMPLOYEES



THE PARTIES:





	(1)	 	James Hardie Industries N.V., a public limited liability company (naamloze vennootschap),
formed under the law of the Netherlands, with its registered office at Strawinskylaan 3077
(1077 ZX) Amsterdam, the Netherlands (“James Hardie Industries”); and
	 
	(2)	 	JHCBM plc, a public company limited by shares, formed under the law of Ireland, with
registered number 471542 and having its registered office at Arthur Cox Building, Earlsfort
Terrace, Dublin 2, Ireland;




James Hardie Industries and JHCBM plc., hereinafter are also jointly referred to as the
“Participating Companies I”.





	(3)	 	James Hardie International Holdings N.V., a limited liability company (naamloze
vennootschap), formed under the law of the Netherlands, with its registered office at
Strawinskylaan 3077 (1077 ZX) Amsterdam, the Netherlands (“James Hardie International
Holdings”); and
	 
	(4)	 	JHIHCBM plc, a public company limited by shares, formed under the law of Ireland, with
registered number 471543 and having its registered office at Arthur Cox Building, Earlsfort
Terrace, Dublin 2 Ireland;




James Hardie International Holdings and JHIHCBM plc., hereinafter are also jointly referred to as
the “Participating Companies II”,



and





	(5)	 	The Special Negotiating Body I, the body established by the Participating Companies I in
conformity with the applicable legal procedures in all Member States involved to negotiate
with the Participating Companies I regarding the arrangement for the Involvement of Employees
within the Participating Companies (the “SNB I”); and
	 
	(6)	 	The Special Negotiating Body II, the body established by the Participating Companies II in
conformity with the applicable legal procedures in all Member States involved to negotiate
with the Participating Companies II regarding the arrangement for the Involvement of Employees
within the Participating Companies (the “SNB II”).





1









 




SNB I and SNB II, are hereinafter also jointly referred to as the “SNBs”. The Participating
Companies I and the Participating Companies II, are hereinafter also jointly referred to as the
“Participating Companies”. Each of the parties referred to under (1) up to and including (6)
above, are hereinafter also individually referred to as a “Party” and jointly referred to as the
“Parties”.



WHEREAS:





	(A)	 	Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company
(the “Regulation”), enables the formation of a European public limited liability company (or
Societas Europaea) (“SE”). This Regulation entered into force in the European
Economic Area (“EEA”) on 8 October 2004.
	 
	(B)	 	Council Directive 2001/86/EC of 8 October 2001 supplementing the Regulation (the
“Directive”), was implemented in the Netherlands by the Act on the involvement of employees
with European legal persons on 17 March 2005 (the “AIE”).
	 
	(C)	 	The Participating Companies I intend to form an SE by means of a merger by acquisition
pursuant to Article 17(2)(a) of the Regulation. This SE will upon its registration have its
registered office in the Netherlands.
	 
	(D)	 	The Participating Companies II intend to form an SE by means of a merger by acquisition
pursuant to Article 17(2)(a) of the Regulation. This SE will upon its registration have its
registered office in the Netherlands.
	 
	(E)	 	James Hardie Industries, its concerned subsidiaries and concerned establishments have
employees in several member states of the EEA, being Denmark, France, Ireland, United Kingdom
and the Netherlands.
	 
	(F)	 	James Hardie International Holdings, its concerned subsidiaries and concerned establishments
have employees in several member states of the EEA, being Denmark, France, Ireland, United
Kingdom and the Netherlands.
	 
	(G)	 	As part of the requirements for registration of the merger and simultaneous formation of the
SE, the Participating Companies I have complied with all formalities and requirements in
respect of the involvement of the employees as prescribed by the Regulation and the AIE, and
have subsequently established SNB I in order to enter into negotiations with an aim to reach
an agreement with regard to the Involvement of Employees in the SE.
	 
	(H)	 	As part of the requirements for registration of the merger and simultaneous formation of the
SE, the Participating Companies II, have complied with all formalities and requirements in
respect of the involvement of the employees as prescribed by the




2









 






	 	 	Regulation and the AIE, and have subsequently established SNB II in order to enter into
negotiations with an aim to reach an agreement with regard to the Involvement of Employees
in the SE.
	 
	(I)	 	None of the Participating Companies has any participation rights, as defined in article 1
below, in place at the time of the merger and formation of the SEs.
	 
	(J)	 	Each of James Hardie Industries and James Hardie International Holdings will be the acquiring
company in the envisaged mergers referred to under (C) and (D) and will as a result of the
respective mergers each take the form of an SE.
	 
	(K)	 	James Hardie Industries currently is and, after the completion of the mergers referred to
above, will remain the owner of 100% of the shares in the capital of James Hardie
International Holdings.
	 
	(L)	 	James Hardie International Holdings is a 100% subsidiary of James Hardie Industries, and is
one of the concerned subsidiaries of James Hardie Industries. The concerned subsidiaries of
James Hardie International Holdings are also concerned subsidiaries of James Hardie
Industries. Therefore, the Parties have decided to negotiate collectively with an aim to reach
one agreement with regard to the involvement of the employees of James Hardie Industries, its
concerned subsidiaries including James Hardie International Holdings and the concerned
subsidiaries thereof, and its concerned establishments including those of James Hardie
International Holdings.
	 
	(M)	 	Subsequently, the Parties have negotiated and reached an agreement regarding the involvement
of the employees as referred to under (L), which the Parties wish to confirm in writing in the
present document.





THEREFORE IT IS HEREBY AGREED as follows:





	1.	 	Definitions and Interpretation
	 
	1.1.	 	Unless the context otherwise requires, the words and expressions used in this
Agreement shall have the meanings set out in this article 1.
	 
	1.2.	 	References in this Agreement to Recitals, Clauses, Paragraphs and Articles are to
recitals, clauses, paragraphs and articles in this Agreement. The Recitals to this Agreement
shall be deemed to form part of this Agreement.
	 
	1.3.	 	Headings are inserted for convenience only and shall not affect the construction of
this Agreement.





3









 






	1.4.	 	“Agreement”: This agreement on the involvement of employees as agreed on the date set
forth above among the Parties.
	 
	1.5.	 	“Consultation”: means the establishment of dialogue and exchange of views between
the body representative of the employees, if any, and/or the employees’ representatives and
the competent organ of the SE, at a time, in a manner and with a content which allows the
employees’ representatives, on the basis of information provided, to express an opinion on
measures envisaged by the competent organ which may be taken into account in the
decision-making process within the SE.
	 
	1.6.	 	“EU Employees”: means:
	 
	 	 	a. with regard to persons working in the Netherlands: persons employed, under a contract of
employment, by James Hardie Industries SE or James Hardie International Holdings SE or a
subsidiary or establishment of James Hardie Industries SE or James Hardie International
Holdings SE;
	 
	 	 	b. with regard to persons working in other Member States: persons employed by James Hardie
Industries SE or James Hardie International Holdings SE or a subsidiary or establishment of
James Hardie Industries SE or James Hardie International Holdings SE in other Member States,
under a contract of employment as defined under the laws of the Member State concerned.
	 
	 	 	A list of the current EU Employees has been reviewed by the Parties and will be retained by the
Human Resources department of James Hardie Industries.
	 
	1.7.	 	“Information”: means the informing of the body representative of the EU employees, if
any, and/or employees’ representatives by the SEs on questions which concern the SEs itself in
the Member States and any of its subsidiaries or establishments situated in another Member
State or which exceed the powers of the decision-making organs in a single Member State at a
time, in a manner and with a content which allows the employees’ representatives to undertake
an in-depth assessment of the possible impact and, where appropriate, prepare consultations
with the SEs.
	 
	1.8.	 	“Involvement of Employees”: means any mechanism under this Agreement, including
Information and Consultation, through which EU Employees may consult on decisions to be taken
within the SEs.
	 
	1.9.	 	“Member States”: means a Member State of the European Union or any other state which
is a party to the Agreement on the European Economic Area.
	 
	1.10.	 	“Other Group Employees”: means persons, other than EU Employees, working on a full
time basis for James Hardie Industries SE or James Hardie International Holdings SE or a
subsidiary or establishment of James Hardie Industries SE or James Hardie International
Holdings SE in states other than Member States. As of the date of this




4









 






	 	 	Agreement, the SEs have Other Group Employees principally in Australia, Canada, New Zealand,
the Philippines, and the United States of America.
	 
	1.11.	 	“Participation Rights”: means the influence of the body representative of the
employees if any, and/or the employees’ representatives in the affairs of a company by way of:
(i) the right to elect or appoint some of the members of the company’s supervisory or
administrative organ, or (ii) the right to recommend and/or oppose the appointment of some or
all of the members of the company’s supervisory or administrative organ.
	 
	1.12.	 	“SEs”: means James Hardie Industries SE and James Hardie International Holdings SE,
severally.
	 
	1.13.	 	“SNB”: means a Special Negotiating Body.






	2.	 	Scope of the Agreement
	 
	2.1.	 	Material matters and topics which relate to the SEs themselves in the Member States,
or to one or more of their subsidiaries or establishments in another Member State, or which
exceed the powers of the decision-making organs in an individual Member State, fall within the
scope of the Agreement. The matters and topics are hereafter described in article 3.D.






	3.	 	The procedure for the Involvement of Employees
	 
	3.1.	 	Parties have agreed to set up an information and consultation procedure as described
hereafter.





3.A. General




Annual call for interest EU Employees





	3.2.	 	Once a year, during the second quarter of the SEs’ fiscal year, the SEs will send
out, to all EU Employees, an invitation for a meeting regarding the matters and topics as
described above under article 2.1 and below under article 3.D that have occurred during the
previous year or are planned to occur. This invitation will contain a detailed agenda of the
matters and topics that have been or will be subject to the Information and Consultation
procedure. EU Employees who react to this call and express interest in the Information and
Consultation to the SEs (“Interested Employees”) will be invited to receive further
Information and have the opportunity to be consulted.
	 
	3.3.	 	The SEs shall inform the Interested Employees about which EU Employees are the
Interested Employees, and shall allow the Interested Employees to exercise their rights as set
out in article 5 below.




5









 












	3.4.	 	The Interested Employees may be requested to enter into a confidentiality agreement,
which may be via an internet portal, before being informed and consulted. Notification shall
be given – where possible prior to a given matter being discussed – of the ground(s) for the
request for confidentiality, what information provided in written form or by word of mouth is
to be covered by the confidentiality requirement, how long this requirement will apply, and
whether there are any persons who are not subject to the confidentiality requirement.
Information and Consultation shall take place on the basis of a written report drawn up by the
SEs, relating to the matters and topics as described above under article 2.1 and below under
article 3.D, including a detailed agenda of the matters and topics that are subject to the
Information and Consultation procedure. This report shall contain material information,
including an executive summary of the different matters and topics, and may refer to other
sources of information attached (including internet links) to the report for further and more
detailed information. If the SEs so determine, this report will be accessible only to the
Interested Employees who have entered into a confidentiality agreement. Information for
Interested Employees shall take place by e-mail, video conference, conference telephone call
or equivalent subsequently developed technologies (with the medium for Information and/or
Consultation to be at the sole discretion of the SEs). Upon the request of at least one member
of the Interested Employees or at the discretion of the SE’s, however, the SEs shall convene a
meeting with the Interested Employees to discuss the matters and topics that are subject to
the Information and Consultation procedure. The SEs shall determine whether this meeting is
held in person, telephonically via video conference or equivalent subsequently developed
technologies and may at the discretion of the SEs be held concurrently with the meeting with
the Other Group Employees contemplated under article 3.5. The SEs shall rotate the time for
the meetings among the Central European, Central US, and Asia Pacific time zones.
	 
	 	 	Annual call — Other Group Employees
	 
	3.5.	 	Once a year, during the second quarter of the SEs fiscal year, the SEs will send out,
to all Other Group Employees, an invitation for a meeting regarding the matters and topics as
described below under article 3.6 that have occurred during the fiscal year or may have been
determined to occur within the next fiscal year. This invitation will contain a detailed
agenda of the matters and topics.






	3.6.	 	The matters and topics referred to in article 3.5 may relate to material changes
and/or developments related to: the structure of the SEs, their economic and financial
situation, the probable development of the business and of production and sales, the situation
and probable trend of material capital expenditure, fundamental organizational changes, the
introduction of new working and manufacturing methods, mergers, relocation of production
operations, retrenchments or closures of companies, establishments or important parts thereof,
the current status of, the developments in and the probable trend of the employment situation,
and mass dismissal.




6









 












	3.7.	 	Other Group Employees may be requested to enter into a confidentiality agreement,
which may be available via an internet portal, before receiving the information. Further
information may be provided through a written report drawn up by the SEs, relating to the
matters and topics as described above under article 3.6. This report may contain relevant
information as determined by the SEs, including an executive summary of the different matters
and topics, and may refer to other sources of information attached (including internet links)
to the report for further and more detailed information. If the SEs so determine, this report
will be accessible only to the Other Group Employees who have entered into a confidentiality
agreement. The SEs shall convene a meeting with the Other Group Employees to discuss the
information covering the relevant matters and topics. The SEs shall determine in their sole
discretion whether this meeting is held in person, telephonically, via video conference or
equivalent subsequently developed technologies. The SEs shall rotate the time for the meetings
among the Central European, Central US, and Asia Pacific time zones.






	3.8.	 	The Parties acknowledge that the Other Group Employees do not fall within the scope
of the Regulation, the Directive nor the AIE. The provisions of articles 3.5 – 3.7 may be
modified with respect to content, format and timing by the SEs from time to time in their
reasonable discretion. The Parties acknowledge that the SEs, through their subsidiaries, have
conducted meetings in the past with the employees similar to the meetings described in
articles 3.5 – 3.7 and presently intend to conduct the meetings described in articles 3.5 –
3.7 for at least three years from the date of this Agreement after which the SEs shall seek
the views of the Other Group Employees about the continuation and parameters for such meetings
taking into account the experience with the involvement of the Other Group Employees during
the 3-year period.





Information and Consultation per occurrence





	3.9.	 	If during the current year a matter and topic as described above under article 2.1
and below under article 3.D occurs and has not been dealt with in accordance with the
procedure described above under the articles 3.2 – 3.4, the SEs will send out an invitation
for interest for Information and Consultation to all EU Employees. This invitation will
contain a detailed agenda of the matters and topics that will be subject to the Information
and Consultation procedure. EU Employees who react to this invitation and express an interest
to the SEs will be considered as Interested Employees and will be invited to receive further
Information and have the opportunity to be consulted.






	3.10.	 	The SEs shall inform the Interested Employees about which EU Employees are the
Interested Employees, and shall allow the Interested Employees to exercise their rights as set
out in article 5 below.






	3.11.	 	The Interested Employees may be requested to enter into a confidentiality agreement,
which may be via an internet portal, before being informed and consulted. Notification shall
be given – where possible prior to a given matter being discussed – of the ground(s)




7









 






	 	 	for the request for confidentiality, what information provided in written form or by word of
mouth is to be covered by the confidentiality requirement, how long this requirement will
apply, and whether there are any persons who are not subject to the confidentiality
requirement. Information and Consultation shall take place on the basis of a written report
drawn up by the SEs, relating to the matters and topics as described above under article 2.1
and below under article 3.D, including a detailed agenda of the matters and topics that are
subject to the Information and Consultation procedure. This report shall contain material
information, including an executive summary of the different matters and topics, and may refer
to other sources of information attached (including internet links) to the report for further
and more detailed information. If the SEs so determine, this report will be accessible only to
the Interested Employees who have entered into a confidentiality agreement. Information and
Consultation shall take place by e-mail, video conference, conference telephone call or
equivalent subsequently developed technologies (with the medium for Information and/or
Consultation to be at the sole discretion of the SEs). Upon the request of at least one member
of the Interested Employees, however, the SEs shall convene a meeting with the Interested
Employees to discuss the matters and topics that are subject to the Information and
Consultation procedure. The SEs shall determine whether this meeting is held in person,
telephonically, via video conference or equivalent subsequently developed technologies.





3.B. Information procedure





	3.12.	 	Information to the Interested Employees regarding the material matters and topics as
described above under article 2.1 and below under article 3.D shall be provided by the SEs at
a time, in a manner and with a content which allows the Interested Employees to undertake a
thorough assessment of the possible impact and to prepare for timely consultations with the
SEs.






	3.13.	 	The SEs shall not be required to provide information where the SEs reasonably
determine that this would seriously impair or adversely affect the functioning of the SEs or
their subsidiaries and establishments. The SEs may impose such confidentiality requirements on
the Interested Employees regarding the provision of information as the SEs may reasonably
determine. Interested Employees shall comply with the confidentiality requirements.
Notification shall be given – where possible prior to a given matter being discussed – of the
ground(s) for the request of confidentiality, what information provided in written form or by
word of mouth is to be covered by the confidentiality requirement, how long this requirement
will apply, and whether there are any persons who are not subject to the confidentiality
requirement.





3.C. Consultation procedure





	3.14.	 	The SEs shall consult with the Interested Employees at a time, in a manner and with
a content which allows the Interested Employees, on the basis of information provided, to




8









 






	 	 	express an opinion on measures envisaged by the SEs which will be taken into account in the
decision-making process within the SEs.






	3.15.	 	Due to the nature of the business conducted by the SEs and the regulatory
obligations with which the SEs have to comply, a reasonable but swift turnaround time of
rendering any opinions by the Interested Employees on measures envisaged by the SEs is
necessary. The opinion of the Interested Employees must be provided within the reasonable
timeframe set by the SEs for that particular matter or topic. The minimum timeframe for the
SEs to receive the Interested Employees’ opinions is 5 days, although the SEs will seek to
provide a standard timeframe of 15 days. In exceptional situations where business
circumstances require the SEs to act in fewer than 5 days, then the timeframe provided to the
Interested Employees can be less than 5 days. In these circumstances, the SEs must provide an
explanation to the Interested Employees why the timeline is less than 5 days.





3.D. Topics regarding the Information and Consultation procedure





	3.16.	 	Information and Consultation shall relate in particular to material changes and/or
developments related to: the structure of the SEs, their economic and financial situation, the
probable development of the business and of production and sales, the situation and probable
trend of material capital expenditure, fundamental organisational changes, the introduction of
new working and manufacturing methods, mergers, relocation of production operations,
retrenchments or closures of companies, establishments or important parts thereof, the current
status of, the developments in and the probable trend of the employment situation, and mass
dismissals. For the avoidance of doubt, the matters and topics referred to in article 3.16
and 3.17, are, for the purpose of the information and consultation procedure per occurrence
(articles 3.9-3.11), not intended to include transactions or matters undertaken in the
ordinary course of (day-to-day) business of the SEs and their subsidiaries. With regard to the
annual information and consultation procedure (articles 3.2-3.4), the matters and topics
referred to in article 3.16 and 3.17 shall include the aggregated results of transactions or
matters undertaken in the ordinary course of (day-to-day) business of the SEs and their
subsidiaries that have occurred during the previous fiscal year and are planned to occur.






	3.17.	 	The SEs shall notify the EU Employees as quickly as reasonably possible, in line
with articles 3.9-3.11 above, about any unusual circumstances or proposed resolutions which
significantly affect the employment status of a significant number of the Member State
employees, particularly in the case of relocations, transfers, closures of companies or
establishments or mass dismissals. Subsequently, the Consultation procedure as set out in
article 3.C shall be followed. Where the competent organ of the SEs decides not to act in
accordance with the opinion expressed by the Interested Employees in the Consultation
procedure, the Interested Employees shall have the right to a further meeting with the
competent organ of the SEs with a view to seeking agreement. In case of such a meeting,




9









 






	 	 	those members of a representative body, if any, who represent EU Employees who are directly
affected by the measures in question shall also have the right to take part in the meeting.
This meeting may be in person if requested by the Interested Employees and the number of EU
Employees attending can be limited, by the SEs, using reasonable discretion. This meeting shall
take place at a time and in a manner to allow the meaningful Consultation to take place prior
to the SEs’ final decision. The final decision is at the sole discretion of the SEs.






	3.18.	 	The topics regarding the Information and Consultation procedure mentioned in 3.16
and 3.17 upon a change of the law governing this Agreement referred to in 11.1, will as per
the date of said change, be material changes and/or developments with reference to the
Standard Rules concerning Information and Consultation as prescribed by the law implementing
the Directive in the Member State in which the statutory seat of the SE is located.






	4.	 	Participation
	 
	4.1	 	None of the Participating Companies has any Participation Rights in place at the
time of the merger and formation of the SEs. Similarly, and in accordance with the Directive
and the applicable standard rules, neither of the SEs will have any Participation Rights after
the merger and formation of the SEs.






	5.	 	Rights of the Interested Employees
	 
	5.1.	 	Subject to the confidentiality agreements with the Interested Employees in accordance
with this Agreement, the Interested Employees shall have the right to inform the
representative body, if any, of the EU Employees of the SEs and of their subsidiaries and
establishments of the content and outcome of the Information and Consultation procedures, as
well as the EU Employees.






	5.2.	 	The Interested Employees may be assisted by experts of their choice. The reasonable
costs of these experts shall be borne by the SEs. The obligation to bear the costs incurred
for experts called in by the Interested Employees shall, unless otherwise agreed by the SE, be
limited to one expert per material topic. These experts cannot include friends and/or
relatives of the Interested Employees or any other SE employee, and must be considered as an
expert related to the agenda item as to which they are being consulted.






	5.3.	 	In so far as this is necessary for the fulfillment of their tasks, the Interested
Employees shall be entitled to meet – at their discretion without any representative of the
SEs being present — with each other during their normal working time.




10









 












	 	a.	 	These meetings can only occur in the period between the receipt of the agenda
from the SEs and the conclusion of the information and consultation process related to
that agenda.
	 
	 	b.	 	The duration of these meetings should be kept to a reasonable amount of time
under the circumstances.
	 
	 	c.	 	Only Interested Employees can attend these meetings.






	5.4.	 	The reasonable costs incurred by the Interested Employees with regard to the
Information and Consultation procedures shall be borne by the SEs, which shall provide the
Interested Employees with the financial and material resources reasonably needed to enable
them to perform their duties in an appropriate manner. In particular, the SEs shall bear the
cost of organizing meetings and providing, if reasonably necessary, interpretation facilities
and the accommodation and travelling expenses of the Interested Employees. Accommodation and
travel expenses should only be incurred when the SE requests an in person meeting with the
Interested Employees or under the circumstances outlined in article 3.17 above.






	5.5.	 	The reasonable costs incurred by the Interested Employees for the fulfillment of
their tasks under this Agreement, including with regard to possible litigation, shall be borne
by the SEs, provided that the SEs are notified of these costs in advance, the SEs consent to
bear them, and whereby such consent shall not be unreasonably withheld.






	6.	 	The date of entry into force of the Agreement and its duration
	 
	6.1.	 	The Agreement is effective for an indefinite period of time, counting from the day of
signing unless a request as described hereafter under article 7.1 or article 8.2 is submitted
to the SE. This Agreement shall end automatically if either one of the SEs ceases to be an SE
in respect of that SE; the Agreement will remain in force for the other existing SE.






	7.	 	Employee representative body
	 
	7.1.	 	At the written request of one or more EU Employees to the Board of Directors of the
SEs, or a resolution from the Board of Directors of the SEs, the SEs shall, in a reasonable
timeframe, start the election procedures with respect to establishing a body representative of
the EU Employees in accordance with the procedures and requirements set out in the legislation
implementing the Directive, more particularly the Standard Rules pertaining thereto, in the
Member State in which the statutory seat of the SEs is located. The SEs and the resulting SNB
shall take such steps to negotiate in good faith in order to enter into an agreement on the
involvement of EU Employees. That agreement is intended not to lower the existing terms of
this Agreement, although the new agreement will apply to the body representative of EU
Employees to be established and not apply to all (Interested) EU Employees. The Standard Rules
of the Member State in which the statutory seat of the SEs is located, will supersede this
Agreement and would apply if the resulting SNBs and SEs agree to those Standard Rules or in
the instance the defined negotiation period, as




11









 






	 	 	defined in the Standard Rules at the time, expires. The Parties acknowledge that this article
7.1 does not apply to the Other Group Employees.






	8.	 	The instances in which the Agreement must be renegotiated
	 
	8.1.	 	Without prejudice to the legal provisions requiring renegotiation of this Agreement,
if a representative body is established in accordance with article 7.1, then four years after
its establishment, it shall examine whether to renegotiate for the conclusion of a new
agreement within the meaning of articles 4 and 7 of the Directive or to continue to apply the
Standard Rules applicable pursuant to article 7.1 above.






	8.2.	 	Upon the written request of either at least 10% of the EU Employees representing at
least two Member States or a resolution from the board of directors of the SEs, the SEs shall
establish an SNB in accordance with the applicable legal provisions, with an aim to
renegotiate an agreement with regard to the involvement of the EU Employees within the meaning
of the Directive, in which case if no agreement is reached, the SNB can opt for application of
the Standard Rules concerning Information and Consultation as set out in the applicable
legislation implementing the Directive in the Member State in which the statutory seat of the
SEs is located.
	 
	9.	 	Relation to national information, consultation and participation laws and regulations






	9.1.	 	This Agreement is without prejudice to any national or local rules or regulations on
information, consultation and/or participation of EU Employees or representatives of the EU
Employees.
	 
	10.	 	Indemnification






	10.1	 	The SEs and the Participating Companies shall, to the maximum extent allowed by law,
defend and hold harmless any of their EU Employees, or former EU Employees, from any damages
they may incur as a result of their negotiation of this Agreement or performance of any
obligations under this Agreement. This includes indemnification of all reasonable legal costs
incurred by the (former) EU Employees.
	 
	11.	 	Governing Law; Jurisdiction and Remedies






	11.1	 	This Agreement shall be governed by the laws of Member State in which the statutory
seat of the SEs is located. Both parties submit to the jurisdiction of the Courts of the
Member State in which the statutory seat of the SEs is located in connection with any dispute
arising in connection with this Agreement. The SEs will not object to a dispute being heard by
the Court of the Member State that would have jurisdiction if the (Interested) EU Employees
were viewed for purposes of this article 11.1 as a body representative of the EU Employees,
which means the SEs shall not object to the




12









 







	 	 	(Interested) EU Employees being regarded in such litigation as if they were a body
representative of the EU Employees.






	11.2	 	In case of any dispute arising under this Agreement the EU Employees and the SEs
shall have all rights and remedies available to them under applicable law.




IN WITNESS WHEREOF this Agreement has been executed as of the date first above written.



Participating Companies I and II:



for and on behalf of James Hardie Industries N.V.




	 	 	 	 	 
	/s/ Russell Chenu

Russell Chenu

	 	/s/ Robert Cox

Robert Cox
	 	 
	Managing Director

	 	Managing Director	 	 
	 
	 	 	 	 
	for and on behalf of JHCBM plc	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	/s/ Diederik Ex

Diederik Ex

	 	/s/ Scott Barnett

Scott Barnett
	 	 
	Director

	 	Director	 	 
	 
	 	 	 	 
	for and on behalf of James Hardie International Holdings N.V.	 	 
	 
	 	 	 	 
	/s/ Russell Chenu

Russell Chenu

	 	/s/ Robert Cox

Robert Cox
	 	 
	Managing Director

	 	Managing Director	 	 






13









 





	 	 	 	 	 
	for and on behalf of JHIHCBM plc	 	 
	 
	 	 	 	 
	 
	/s/ Diederik Ex
	 	/s/ David Evans	 	/s/ Scott Barnett
	 

	 	 
	 	 
	Diederik Ex

	 	David Evans
	 	Scott Barnett
	Director

	 	Director
	 	Director






SNBs:




for and on behalf of the Special Negotiating Body I




	 	 	 	 	 
	By: 

Title:

	 	/s/ Kevin Young
 

Representative of SNB
	 	 
	 
	 	 	 	 
	for and on behalf of the Special Negotiating Body II	 	 
	 
	 	 	 	 
	By: 

Title:

	 	/s/ Kevin Young
 

Representative of SNB
	 	 







14