exv4w10






Exhibit 4.10




Indemnity Agreement




Dated




Between




James Hardie Building Products, Inc.,

a corporation formed under the laws of the State of Nevada

(the “Indemnitor”)




and




[                    ] (the “Indemnitee”).




 









 





Indemnity Agreement




     This Indemnity Agreement (the “Agreement”) is made and entered into this                      day of                     ,
200_, by and between James Hardie Building Products, Inc., a Nevada corporation (“Indemnitor”), and
                                         (the “Indemnitee”) (individually, each a “Party” and collectively the
“Parties”).



Recitals




     Both Indemnitor and Indemnitee recognize the increased risk of litigation and other claims
being asserted against directors and officers of public companies in today’s environment. The
Indemnitee and Indemnitor are also aware that it is common for plaintiffs to name a parent company
and its board of directors in lawsuits originating at the subsidiary level.



     Indemnitor acknowledges that Indemnitee has served, is serving and shall serve as a director,
officer and/or employee of Indemnitor and James Hardie Industries, NV (the “Parent”) or as an
Affiliate Indemnitee (as hereinafter defined), in the positions and for the entities identified on
Exhibit A attached hereto, at the request of Indemnitor. The Indemnitee is only willing to
continue such service as a director, officer and/or employee of Indemnitor and of Parent or as an
Affiliate Indemnitee, if the Indemnitee is indemnified by the Indemnitor for any claims against
Indemnitee relating, inter alia, to Indemnitee’s service as a director, officer and/or employee of
Indemnitor and of Parent or as an Affiliate Indemnitee. Parent has also requested that Indemnitor
provide indemnification for the Indemnitee so that it can continue to attract and retain the best
qualified candidates for its Board of Directors.



     Indemnitor’s operations are by far the largest and most important segment of Parent’s
business. In fiscal year 2006, Indemnitor contributed approximately 82% of Parent’s total net
sales and approximately 89% of income before taxes. In that same year, 65% of the employees of the
Parent and its subsidiaries worked for Indemnitor, and Indemnitor’s assets were 82% of Parent’s
total assets (other than general corporate assets).



     Indemnitor recognizes that Indemnitee dedicates substantial time and effort to the concerns of
Indemnitor, including time spent (a) in meetings and in preparation for meetings, reflecting the
importance of Indemnitor to Parent’s corporate group, (b) to review and consider the business and
affairs of Indemnitor, including through annual visits to Indemnitor’s offices and facilities, and
(c) to establish policies for Indemnitor’s activities, operations, and capital improvements.



     In addition to spending time and effort in the manner described above and otherwise,
Indemnitee has made, does make and will make many decisions which greatly affect and benefit
Indemnitor. Such decisions include, but are not limited to, managing equity and debt issues at the
Parent level, allocating Parent resources to Indemnitor and reviewing requests for Parental
investment in and assistance to Indemnitor.



     Indemnitor acknowledges that, due to the benefits it receives from the service of the
Indemnitee and from the valuable administrative, financial and other support provided by Parent, it
has a vested corporate self-interest in ensuring that qualified individuals are not discouraged
from serving as directors and officers of Parent, because of the risk of litigation or other
claims. Moreover, the large and tangible benefits Indemnitor reasonably expects to derive from the
activities of Indemnitee are such that the reasonably expected value to be obtained by Indemnitor
from encouraging service by Indemnitee is at least as great as any reasonably expected cost.



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     In part to provide the Indemnitee with specific contractual assurance of substantial
protection against personal liability (regardless of, among other things, any amendment to or
revocation of any other law or agreement protecting Indemnitee, or any change in Indemnitor’s or
Parent’s Board of Directors, which, in the case of Parent, includes its Management Board,
Supervisory Board, and Joint Board, or control of Indemnitor or Parent), the Indemnitor desires to
enter into this Agreement to hold harmless and indemnify the Indemnitee and to make arrangements
pursuant to which the Indemnitee may be advanced or reimbursed expenses incurred by the Indemnitee
in certain proceedings, in every case to the fullest extent that would be authorized or permitted
by the laws of the State of Nevada. Such agreement is not intended to be exclusive of any other
rights to which the Indemnitee may be entitled.



General terms




     NOW THEREFORE, in consideration of the foregoing recitals, and of the mutual promises
contained herein, which the Parties agree constitute full and adequate consideration, the Parties
agree as follows:




	1	 	Service by the Indemnitee






	 	 	At the request of Indemnitor, the Indemnitee has served, is serving and shall continue to
serve as a director, officer and/or employee of Indemnitor and of Parent and/or as an
Affiliate Indemnitee, as shown on Exhibit A, which may be amended from time to time,
for so long as he is duly elected or qualified for such service or until such time as he
tenders his resignation in writing. Subject to any other contractual obligation or other
obligation imposed by operation of law, the Indemnitee may at any time and for any reason
resign from such position. Nothing in this Agreement will confer upon the Indemnitee the
right to continue in the employ of any of Indemnitor, Parent or an Affiliate Indemnitor (as
hereinafter defined).






	2	 	Indemnification






	 	(a)	 	To the fullest extent permitted by Nevada law in effect on the date hereof or
as such laws may from time to time be amended, the Indemnitor shall hold harmless and
indemnify the Indemnitee, his executors, administrators or assigns against any and all
expenses, liabilities and losses (including, without limitation, investigation
expenses, expert witnesses’ and attorneys’ fees and expenses, judgments, penalties,
fines, amounts paid or to be paid in settlement, any interest, assessments, or other
charges imposed thereon and any federal, state, local or foreign taxes imposed as a
result of actual or deemed receipt of any payment hereunder) actually and reasonably
incurred by the Indemnitee (net of any related insurance proceeds or other amounts
received by the Indemnitee or paid by or on behalf of an Indemnitor on the Indemnitee’s
behalf in compensation of such expenses, liabilities or losses) in connection with any
actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative or in arbitration, to which the Indemnitee is a party
or participant or is threatened to be made a party or participant (a “Proceeding”), as
a plaintiff, defendant, respondent, witness or otherwise, based upon, arising from,
relating to or by reason of the fact that the Indemnitee:






	 	(i)	 	is, was, shall be or shall have been a director, officer and/or
employee of Parent;




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	 	(ii)	 	is, was, shall be or shall have been a director, officer and/or
employee of Indemnitor; or
	 
	 	(iii)	 	is or was serving, shall serve, or shall have served at the
request of Indemnitor as a director, officer, partner, member, manager,
trustee, fiduciary, employee or agent (“Affiliate Indemnitee”) of another
foreign or domestic corporation or non-profit corporation, cooperative,
partnership, joint venture, trust, employee benefit plan, or other incorporated
or unincorporated enterprise (each, an “Affiliate Indemnitor”) or arising from
or relating to any action or omission to act taken by the Indemnitee in any of
the foregoing capacities; provided, however, that, except as provided in
Section 11(d) or (e) hereof, an Indemnitor shall indemnify the Indemnitee in
connection with a Proceeding initiated by the Indemnitee only if such
proceeding (or part thereof) was authorised by a two-thirds vote of the Board
of Directors of Indemnitor.






	 	(b)	 	The Indemnitee shall be presumed to be entitled to such indemnification under
this Agreement upon submission of a written claim pursuant to Section 9 hereof.
Thereafter, the Indemnitor shall have the burden of proof to overcome the presumption
that the Indemnitee is so entitled. Such presumption shall only be overcome by a
judgment or other final adjudication, after all appeals and all time for appeals has
expired (“Final Determination”), which is adverse to the Indemnitee and which
establishes:






	 	(i)	 	that his acts were committed in bad faith, or were the result
of active and deliberate dishonesty or wilful fraud or illegality, and were
material to the cause of action so adjudicated;
	 
	 	(ii)	 	that the Indemnitee in fact personally gained a financial
profit or other advantage to which he was not legally entitled; or
	 
	 	(iii)	 	that indemnification of Indemnitee is prohibited by applicable
law.






	 	(c)	 	The termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement (with or without court approval), conviction or upon a plea
of nolo contendere or its equivalent, shall not (except as otherwise expressly provided
in this Agreement) of itself create a presumption that Indemnitee is not entitled to
indemnification or otherwise adversely affect the rights of the Indemnitee to
indemnification except as may be provided herein.
	 
	 	(d)	 	If the Indemnitee is not wholly successful in any Proceeding but is successful
on the merits or otherwise as to one or more but less than all claims, issues or
matters in such Proceeding, the Indemnitor agrees to indemnify the Indemnitee to the
maximum extent permitted by law against all losses and expenses incurred by the
Indemnitee in connection with each successfully resolved claim, issue or matter. For
the purposes of this section and without limitation, the termination of any claim,
issue or matter in such a Proceeding by dismissal with or without prejudice shall be
deemed to be a successful result as to such claim, issue or matter. Neither the
failure of the Indemnitor (including its Board of Directors, legal counsel or
stockholders) to have made a determination prior to the commencement of such Proceeding
that indemnification of the Indemnitee is proper in the circumstances because such
person has met the applicable standard of conduct, nor an actual determination by such
Indemnitor (including its Board of Directors, its legal counsel or its stockholders)
that the Indemnitee has not met the applicable standard of conduct, shall be a defense




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	 	 	 	to the action or create a presumption that the Indemnitee has not met the applicable
standard of conduct. The purchase, establishment or maintenance of any other
indemnification arrangement shall not in any way diminish, restrict, limit or
adversely affect the rights and obligations of the Indemnitor or of the Indemnitee
under this Agreement, except as expressly provided herein, and the execution and
delivery of this Agreement by the Indemnitor and the Indemnitee shall not in any way
diminish, restrict, limit or adversely affect the Indemnitee’s right to
indemnification from the Indemnitor or any other party or parties under any other
indemnification arrangement, the Articles of Incorporation or the Bylaws of the
Indemnitor (the “Charter Documents”), or applicable law.
	 
	 	(e)	 	No indemnity pursuant to this Agreement shall be paid by the Indemnitor:






	 	(i)	 	in respect of remuneration paid to Indemnitee if it shall be
determined by a Final Determination that such remuneration was in violation of
law;
	 
	 	(ii)	 	on account of any suit in which judgment is rendered against
Indemnitee for an accounting of profits made from the purchase or sale by
Indemnitee of securities of Parent pursuant to the provisions of Section 16(b)
of the Securities Exchange Act of 1934 and amendments thereto or similar
provisions of any applicable federal, state or local statutory law;
	 
	 	(iii)	 	on account of Indemnitee’s conduct which is adjudged in a
Final Determination to have been knowingly fraudulent or deliberately
dishonest, or to constitute wilful misconduct; or
	 
	 	(iv)	 	if a Final Determination by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful (and, in this
respect, both the Indemnitor and the Indemnitee have been advised that the
Securities and Exchange Commission believes that:






	 	(A)	 	indemnification for liabilities arising under
the federal securities laws is against public policy and is, therefore,
unenforceable; and
	 
	 	(B)	 	claims for indemnification should be submitted
to the appropriate court for adjudication).






	3	 	Indemnification for Expenses of a Witness






	 	 	Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by
reason of his status as a director, officer, employee or agent or fiduciary of Parent,
Indemnitor, or an Affiliate Indemnitor, a witness in any Proceeding to which Indemnitee is
not a party, he shall be indemnified by the Indemnitor against all expenses actually and
reasonably incurred by him or on his behalf in connection therewith.






	4	 	Period of Limitations






	 	 	No legal action shall be brought and no cause of action shall be asserted by or on behalf of
Indemnitor against the Indemnitee, Indemnitee’s spouse, heirs, executors, or personal or
legal representatives after the expiration of two years from the date of accrual of such
cause of action, or such longer period as may be required by applicable law under the
circumstances. Any claim or cause of action of the Indemnitor or its affiliate shall be
extinguished and deemed released unless asserted by the timely filing of a legal action
within such period;
provided, however, that if any shorter period of limitations is otherwise applicable to any
such cause of action the shorter period shall govern.




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	5	 	Insurance






	 	 	Subject only to the provisions of this Section 5, as long as the Indemnitee shall continue
to serve at the request of Indemnitor, as a director, officer and/or employee of Indemnitor
or Parent (or shall continue at the request of Indemnitor to serve as an Affiliate
Indemnitee) and, thereafter, as long as the Indemnitee shall be subject to any possible
Proceeding by reason of the fact that the Indemnitee was a director, officer and/or employee
of Indemnitor or Parent (or served in any of said other capacities), the Indemnitor shall
purchase or arrange for, and maintain in effect for the benefit of the Indemnitee, one or
more valid, binding and enforceable policies of directors’ and officers’ liability insurance
providing adequate liability coverage for the Indemnitee’s acts as a director, officer
and/or employee of Parent or Indemnitor or as an Affiliate Indemnitee (“D&O Insurance”) so
far as it is reasonably available at a reasonable cost (or in the event that such third
party insurance policies are not available maintain an appropriate self-insurance program).
The Indemnitor shall promptly notify the Indemnitee if such D&O Insurance is not available
or of any lapse, amendment or failure to renew said policy or policies or any provision
thereof relating to the extent or nature of coverage provided thereunder. In the event that
Indemnitor cannot purchase or maintain in effect said policy or policies of D&O Insurance
pursuant to the provisions of this Section 5, the Indemnitor shall, in addition to and not
in limitation of the other rights granted to the Indemnitee under this Agreement, hold
harmless and indemnify the Indemnitee to the full extent of coverage which would otherwise
have been provided for the benefit of the Indemnitee pursuant to the D&O Insurance. As far
as is legally possible, the Indemnitor shall elect to be subrogated to the rights of the
Indemnitee against a third-party claim in connection with a Proceeding and any liability
arising in connection with such Proceeding, unless an insurer is entitled to be subrogated
to those rights.






	6	 	Claims for Payments






	 	(a)	 	Notwithstanding any other provision of this Agreement, to the fullest extent
allowed by Nevada law, the Indemnitee shall have the right to receive from the
Indemnitor on demand or, at his option, to have the Indemnitor pay promptly on his
behalf, within thirty (30) days of the date the Indemnitee submits a Claim (as defined
below in this paragraph 6(a)) and in advance of a Final Determination of a Proceeding,
all amounts payable by the Indemnitor pursuant to the terms of this Agreement as
corresponding amounts are expended or incurred by the Indemnitee in connection with any
Proceeding or otherwise (such amounts so expended or incurred being referred to as
“Advanced Amounts”). In making any claim for payment by the Indemnitor of any amount,
including any Advanced Amount, pursuant to this Agreement, the Indemnitee shall submit
to the Indemnitor a written request for payment (a “Claim”) which includes a schedule
setting forth in reasonable detail the dollar amount expended (or incurred or expected
to be expended or incurred). Each item on such schedule shall be supported by the
bill, agreement, or other documentation relating thereto, a copy of which shall be
appended to the schedule as an exhibit. The Corporate Secretary of the Indemnitor
shall, promptly upon receipt of such a request for indemnification, advise the
Indemnitor’s Board of Directors in writing that Indemnitee has requested
indemnification.
	 
	 	(b)	 	Where the Indemnitee is requesting Advanced Amounts, the Indemnitee must also
provide an undertaking to repay such Advanced Amounts if a Final Determination is
made that the Indemnitee is not entitled to indemnification hereunder. Any advances
and undertakings to repay pursuant to this Section 6 shall be unsecured and interest
free.





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	 	(c)	 	Notwithstanding the foregoing, the obligation of the Indemnitor to pay Advanced
Amounts pursuant to this Section 6 shall be subject to the condition that, if, when and
to the extent that the Indemnitor determines that Indemnitee would not be permitted to
be indemnified under applicable law, Indemnitor shall be entitled to be reimbursed,
within thirty (30) days of such determination, by Indemnitee (who hereby agrees to
reimburse Indemnitor) for all such amounts thereto paid; provided, however, that if
Indemnitee has commenced or thereafter commences legal proceedings in a court of
competent jurisdiction to secure a determination that Indemnitee should be indemnified
under applicable law, any determination made by Indemnitor that Indemnitee would not be
permitted to be indemnified under applicable law shall not be binding and Indemnitee
shall not be required to reimburse Indemnitor for any Advanced Amounts until a Final
Determination is made with respect thereto (as to which all rights of appeal therefrom
have been exhausted or lapsed).






	7	 	Continuation of Indemnity






	 	 	All agreements and obligations of the Indemnitor contained herein shall continue during the
period the Indemnitee is a director, officer and/or employee of Indemnitor or Parent (or is
serving at the request of Indemnitor as an Affiliate Indemnitee) and shall continue
thereafter so long as the Indemnitee shall be subject to any possible Proceeding by reason
of the fact that the Indemnitee was a director, officer and/or employee of Indemnitor or
Parent or served at the request of the Indemnitor as an Affiliate Indemnitee, whether or not
Indemnitee is acting or serving in any such capacity at the time any liability or expense is
incurred for which indemnification can be provided under this Agreement. This Agreement
shall continue in effect regardless of whether Indemnitee continues to serve as a director,
officer and/or employee of the Indemnitor, Parent or as an Affiliate Indemnitee at
Indemnitor’s request.






	8	 	Successors: Binding Agreement






	 	 	This Agreement shall be binding on, and shall inure to the benefit of and be enforceable by,
the Indemnitor’s successors and assigns and by the Indemnitee’s personal or legal
representatives, executors, administrators, successors, heirs, distributees, divisees and
legatees. Indemnitor shall require any successor or assignee (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of such Indemnitor expressly to assume and agree in writing to perform this
Agreement in the same manner and to the same extent that such Indemnitor would be required
to perform if no such succession or assignment had taken place.






	9	 	Notification and Defense of Claim






	 	(a)	 	Promptly after receipt by the Indemnitee of notice of the commencement of any
Proceeding, the Indemnitee shall, if a claim in respect thereof is to be made against
an Indemnitor under this Agreement, notify such Indemnitor of the commencement thereof,
but the failure to so notify such Indemnitor will not relieve the Indemnitor from any
liability which it may have to the Indemnitee (except to the extent that the Indemnitor
is prejudiced by such failure). With respect to any such Proceeding:




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	 	(i)	 	Indemnitor shall be entitled to participate therein at its own
expense;
	 
	 	(ii)	 	Except with prior written consent of the Indemnitee, the
Indemnitor shall not be entitled to assume the defense of any Proceeding;
	 
	 	(iii)	 	Indemnitor shall not settle any Proceeding in any manner which
would impose any penalty or limitation on the Indemnitee without the
Indemnitee’s prior written consent (not to be unreasonably withheld or
delayed); and
	 
	 	(iv)	 	The Indemnitee shall not settle any Proceeding without the
Indemnitor’s prior written consent (not to be unreasonably withheld or
delayed).






	 	(b)	 	Upon written request by Indemnitee for indemnification pursuant to Section 6
hereof, a determination, if required by applicable law, with respect to Indemnitee’s
entitlement thereto shall be made by the following person or persons empowered to make
such determination:






	 	(i)	 	the Board of Directors of Indemnitor by a majority vote of a
quorum of directors of such Indemnitor who are not and were not parties to the
Proceeding in respect of which indemnification is sought by Indemnitee
(“Disinterested Directors”); or
	 
	 	(ii)	 	if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable or, even if obtainable, said
Disinterested Directors so direct, by a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the past five years has been, retained to represent:






	 	(A)	 	the Indemnitor or Indemnitee in any matter
material to either such party; or
	 
	 	(B)	 	any other party to the Proceeding giving rise
to a claim for indemnification hereunder (“Independent Counsel”)
(notwithstanding the foregoing, the term “Independent Counsel” shall
not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest
in representing either the Indemnitor or Indemnitee in an action to
determine Indemnitee’s rights under this Agreement) in a written
opinion to the Indemnitor’s Board of Directors, a copy of which shall
be delivered to Indemnitee; or






	 	(iii)	 	if so directed by said Disinterested Directors, by the
stockholders of Indemnitor, and, if it is determined that Indemnitee is
entitled to indemnification, payment to Indemnitee shall be made within thirty
(30) days after such determination.






	 	 	 	Indemnitee shall cooperate with the person, persons or entity making such
determination with respect to Indemnitee’s entitlement to indemnification, including
providing to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and reasonably necessary
to such determination. Any Independent Counsel, member of the Board of Directors,
or stockholder of Indemnitor shall act reasonably and in good faith in making a
determination under this Agreement of the Indemnitee’s entitlement to




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	 	 	 	indemnification. Any costs or expenses (including attorneys’ fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons or
entity making such determination shall be borne by such Indemnitor to the extent
allowed by applicable law (irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Indemnitor hereby indemnifies and agrees to
hold Indemnitee harmless therefrom.
	 
	 	(c)	 	If the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 9(b) hereof, the Independent Counsel shall be
selected as provided in this Section 9(c). The Independent Counsel shall be selected
by the Board of Directors (subject to this Section 9(c)), and the Indemnitor shall give
written notice to Indemnitee advising him of the identity of the Independent Counsel so
selected. Indemnitee may, within seven (7) days after receipt of such written notice
of selection, deliver to the Indemnitor a written objection to such selection;
provided, however, that such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of “Independent
Counsel”, as defined in this Section 9, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and timely
objection, the person so selected shall act as Independent Counsel. If a written
objection is made and substantiated, the Independent Counsel selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a court has
determined that such objection is without merit. If, within twenty (20) days after
submission by Indemnitee of a written request for indemnification pursuant to Section
9(a) hereof, no Independent Counsel shall have been selected and not objected to, the
Indemnitor may petition a court of competent jurisdiction for resolution of any
objection which shall have been made by Indemnitee to the Indemnitor’s selection of
Independent Counsel and/or for the appointment as Independent Counsel of a person
selected by the court or by such other person as the court shall designate, and the
person with respect to whom all objections are so resolved or the person so appointed
shall act as Independent Counsel under Section 9(b) hereof. The Indemnitor shall pay
any and all reasonable fees and expenses of Independent Counsel incurred by such
Independent Counsel in connection with acting pursuant to Section 9(b) hereof, and the
Indemnitor shall pay all reasonable fees and expenses incident to the procedures of
this Section 9(c), regardless of the manner in which such Independent Counsel was
selected or appointed. Upon the due commencement of any judicial proceeding or
arbitration pursuant to this Agreement, Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to the applicable
standards of professional conduct then prevailing).






	10	 	Security






	 	 	To the extent requested by the Indemnitee and approved by the Board of Directors of the
Indemnitor, the Indemnitor may at any time and from time to time provide security to the
Indemnitee for the Indemnitor’s obligations hereunder through a line of credit, funded trust
or other collateral. Any such security, once provided to the Indemnitee, may not be revoked
or released without the prior written consent of the Indemnitee.






	11	 	Enforcement






	 	(a)	 	Indemnitor has entered into this Agreement and assumed the obligations imposed
on Indemnitor hereby in order to induce the Indemnitee to act as a director, officer
and/or employee of Indemnitor or the Parent or as an Affiliate Indemnitee and
acknowledges that the Indemnitee is relying upon this Agreement in agreeing to serve
or continuing in such capacity.





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	 	(b)	 	This Agreement is intended and shall be interpreted to supplement and not
diminish any protection otherwise afforded to Indemnitee.
	 
	 	(c)	 	This Agreement constitutes the entire agreement between the Parties hereto with
respect to the subject matter hereof.
	 
	 	(d)	 	All expenses incurred by the Indemnitee in connection with the preparation and
submission of the Indemnitee’s request for indemnification hereunder shall be borne by
the Indemnitor. In the event the Indemnitee has requested payment of any amount under
this Agreement or under the D&O Insurance and has not received payment thereof within
thirty (30) days of such request, the Indemnitee may bring any action to enforce his
rights or such collect moneys due, and, if the Indemnitee is successful in such action,
the Indemnitor shall reimburse the Indemnitee for all of the Indemnitee’s fees and
expenses in bringing and pursuing such action. If it is determined that the Indemnitee
is entitled to indemnification for part (but not all) of the indemnification so
requested, or is entitled to part (but not all) of the amounts claimed under the D&O
Insurance, such fees and expenses shall be reasonably prorated. The Indemnitee shall
be entitled to the advancement of such amounts to the full extent contemplated by
Section 6 hereof in connection with such Proceeding.
	 
	 	(e)	 	In the event that:






	 	(i)	 	Advanced Amounts are not timely provided pursuant to Section 6
of this Agreement;
	 
	 	(ii)	 	no determination with respect to the entitlement to
indemnification is received by Indemnitee pursuant to Section 9 of this
Agreement within twenty (20) days after receipt by the Indemnitor of the
request for indemnification; or
	 
	 	(iii)	 	payment of indemnification is not made within thirty (30) days
after a determination has been made that Indemnitee is entitled to
indemnification pursuant to Section 9 of this Agreement, Indemnitee shall be
entitled to an adjudication in a court of competent jurisdiction of his
entitlement to such indemnification,






	 	 	 	alternatively, Indemnitee, at his option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the
American Arbitration Association. Indemnitee shall commence such proceeding seeking
an adjudication or an award in arbitration within 180 days following the date on
which Indemnitee first has the right to commence such proceeding pursuant to this
Section 11(e). Indemnitor shall not oppose Indemnitee’s right to seek any such
adjudication or award in arbitration. Indemnitor shall be precluded from asserting
in any judicial proceeding or arbitration commenced pursuant to this Section 11 that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator that
Indemnitor is bound by all the provisions of this Agreement.





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	 	(f)	 	In the event that the Indemnitee is subject to or intervenes in any Proceeding
in which the validity or enforceability of this Agreement is at issue or seeks an
adjudication or award in arbitration to enforce his rights under, or to recover
damages for breach of this Agreement, the Indemnitee, if he prevails in whole or in
part in such action, will be entitled to recover from the Indemnitor and will be
indemnified by the Indemnitor against any actual expenses related thereto incurred
by Indemnitee.






	12	 	Contribution






	 	 	If the indemnification provided for herein in respect of any expense, liability or loss
incurred by the Indemnitee in connection with any Proceeding is determined by a court of
competent jurisdiction in a Final Determination to be prohibited by applicable law or is
otherwise unavailable and may not be paid to Indemnitee for any reason other than those set
forth in paragraphs (i), (ii), (iii) and (iv) of Section 2(e), then the Indemnitor, in lieu
of indemnifying Indemnitee, shall to the fullest extent allowed by law contribute to the
amount paid or payable by Indemnitee as a result of such expense, liability or loss in such
proportion as is appropriate to reflect:






	 	(a)	 	the relative benefits received by the Indemnitor, the Parent and/or an
Affiliate Indemnitor on the one hand and Indemnitee on the other hand from the events,
circumstances, conditions, happenings, actions or transactions from which such
Proceeding arose;
	 
	 	(b)	 	the relative fault of the Indemnitor, the Parent and/or an Affiliate Indemnitor
(including their affiliates) on the one hand and of Indemnitee on the other hand in
connection with the events, circumstances and happenings which result in such expense,
liability or loss (such relative fault to be determined by reference to, among other
things, the relative intent, knowledge, access to information and opportunity to
correct or prevent the events, circumstances and/or happenings resulting in such
expense, liability or loss of the Indemnitor, the Parent and/or an Affiliate Indemnitor
on the one hand and of the Indemnitee on the other hand); and
	 
	 	(c)	 	any other relevant equitable considerations, it being agreed that it would not
be just and equitable if such contribution were determined by pro rata or other method
of allocation which does not take into account the foregoing equitable considerations.






	13	 	Severability






	 	 	If any provision or provisions of this Agreement shall be held by a court of competent
jurisdiction to be invalid, void, illegal or otherwise unenforceable for any reason
whatsoever:






	 	(a)	 	the validity, legality and enforceability of the remaining provisions of this
Agreement (including, without limitation, all portions of any sections or subsections
of this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that are not by themselves invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby; and
	 
	 	(b)	 	to the fullest extent possible, the provisions of any section or subsections of
this Agreement containing any such provisions held to be invalid, illegal or
unenforceable shall be construed so as to give effect to the intent of the Parties that
the Indemnitor (or any of them) provide protection to the Indemnitee to the fullest
extent enforceable.





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	14	 	Non-exclusivity; survival of rights; subrogation






	 	(a)	 	The rights of indemnification as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled under
applicable law, any other document or agreement, a vote of stockholders, a resolution
of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of Indemnitee under this
Agreement in respect of any action taken or omitted by such Indemnitee prior to such
amendment, alteration or repeal. It is the intent of Indemnitor to provide
indemnification to the fullest extent of the law. To the extent that a change in
applicable law, whether by statute or judicial decision, would permit greater
indemnification than otherwise permitted under this Agreement, it is the intent of the
Parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change. No right or remedy herein conferred is intended to be
exclusive of any other right or remedy, and every other right and remedy shall be
cumulative and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other right or remedy;
	 
	 	(b)	 	in the event of payment under this Agreement, the Indemnitor shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Indemnitee, who shall execute all papers required and shall do everything that may be
necessary to secure such rights, including execution of such documents as are necessary
to enable the Indemnitor to bring suit to enforce such rights; and
	 
	 	(c)	 	the Indemnitor shall not be liable under this Agreement to make any payments of
amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has
otherwise actually received such payment under any insurance policy, contract,
agreement or otherwise.






	15	 	Operation of Previous Deeds






	 	(a)	 	Those certain agreements by and between Indemnitee and Parent, Indemnitor
and/or Affiliate Indemnitor(s), attached hereto as Exhibit B, providing for
indemnification of the Indemnitee by the Indemnitor, Parent or an Affiliate Indemnitor
(the “Previous Deeds”), to the extent they relate to:






	 	(i)	 	any obligation the Indemnitor, Parent or an Affiliate
Indemnitor may have to maintain insurance in respect of the Indemnitee, are
revoked; and
	 
	 	(ii)	 	all other matters, are superseded by this Agreement,






	 	 	 	from the date hereof (the “Effective Date”).
	 
	 	(b)	 	Section 15(a) of this Agreement does not prejudice any accrued rights,
obligations, claims or liabilities of a party arising under the Previous Deeds before
the Effective Date with respect to any matter other than any obligation the Indemnitor,
Parent and/or an Affiliate Indemnitor may have had under the Previous Deeds to maintain
insurance in respect of the Indemnitee.
	 
	 	(c)	 	Without limiting Section 15(b), Section 15(a) of this Agreement does not affect
the indemnities provided by the Previous Deeds in connection with any actual or alleged
act, error, statement, misstatement, misleading statement, omission, neglect, conduct




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	 	 	 	or breach of duty made, committed, omitted or attempted by the Indemnitee (either
alone or jointly with one or more other persons) in any way connected with the
Indemnitee being a director, officer and/or employee of the Indemnitor or the Parent
or serving as an Affiliate Indemnitee of an Affiliate Indemnitor (an
“Indemnitee’s Act”) occurring before the Effective Date. Those indemnities
continue in full force and effect in connection with any Indemnitee’s Act occurring
before the Effective Date even if a claim is made under the Previous Deeds after the
Effective Date.






	16	 	Modifications






	 	 	No provision of this Agreement may be modified, waived or discharged unless such
modification, waiver or discharge is agreed to in writing by the Indemnitee and an officer
of the Indemnitor designated by the Board of Directors of Indemnitor. No waiver by either
party at any time of any breach by the other party of, or of compliance with, any condition
or provision of this Agreement to be performed by such other party shall be deemed a waiver
of similar or dissimilar provisions or conditions at the same time or at any prior or
subsequent time.






	17	 	Governing law






	 	 	The validity, interpretation, construction and performance of this Agreement shall be
governed by the laws of the State of Nevada, without giving effect to the principles of
conflicts of laws thereof.






	18	 	Notices






	 	 	For the purposes of this Agreement, notices and all other communications provided for in
this Agreement shall be in writing and shall be deemed to have been duly given when
delivered by hand against a receipt therefor, received by facsimile, or five days after
being mailed by United States registered mail, return receipt requested, postage prepaid, as
follows:





	 	 	 
	If to the Indemnitee:

	 	If to Indemnitor:
	 
	 	 
	 

	 	James Hardie Building Products Inc

26300 La Alameda, Ste. 100

Mission Viejo, CA 92691

Facsimile: (949) 348-4534

Attn: President
	 
	 	 
	With a copy to:

	 	With a copy to:
	 
	 	 
	Facsimile:

	 	Facsimile:
	Attn:

	 	Attn:







	 	 	or to such other address as either party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective only upon
receipt.




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	19	 	Counterparts






	 	 	This Agreement may be executed in one or more counterparts, each of which shall be deemed to
be an original but all of which together shall constitute one and the same instrument. Only
one such counterpart signed by the party against whom enforceability is sought needs to be
produced to evidence the existence of this Agreement.






	20	 	Headings; references; pronouns






	 	 	The headings of the paragraphs of this Agreement are inserted for convenience only and shall
not be deemed to constitute part of this Agreement or to affect the construction thereof.
References herein to section numbers are to sections of this Agreement. All pronouns and
any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular
or plural as appropriate.






	21	 	Consent to jurisdiction; choice of venue






	 	 	The Indemnitor and the Indemnitee each agree that any litigation arising directly or
indirectly out of, or in any way relating to this Agreement shall commence exclusively in
Clark County District Court in the State of Nevada or in the United States District Court
located in Clark County, Nevada, and each Party, by this Agreement hereby irrevocably
consents to the jurisdiction of these courts.






	22	 	Effectiveness






	 	 	This Agreement shall be effective as of the day and year first above written, and shall
apply to any Proceedings relating to matters which occurred prior to, on or after such date.





     IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the day
and year first written above.



	 	 	 	 	 
	JAMES HARDIE BUILDING PRODUCTS, INC.

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	INDEMNITEE

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	 	 	 



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Exhibit A




Schedule of Positions Held by Indemnitee at the Request of Indemnitor, as an Officer, Director

and/or Employee of Parent or Indemnitor and/or as an Affiliate Indemnitee




	 	 	 
	Entity

	 	Title






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Exhibit B




Previous Deeds





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