Mallesons Stephen Jaques has been working with James Hardie Industries NV on its controversial move to Ireland.
Mallesons has acted for the building supplies producer on all Australian legal aspects of the proposal and has worked with the company for several years, starting with the asbestos compensation case in late 2004.
Mallesons was advising the company on its options prior to the move to Ireland, such as a move to the United States or back to Australia, and is now overseeing all Australian legal matters regarding the move.
Work undertaken by the firm includes development of the transaction structure, evaluating the suitability of the Societas Europaea (SE) as an ASX and NYSE listed entity and obtaining ASX and other necessary Australian regulatory approvals.
Mallesons partner, Tim Blue, said James Hardie will be the first SE to be listed on the ASX.
“Mallesons assisted James Hardie to navigate largely unchartered waters through the SE transformation and the move to Ireland, while at the same time preserving the status quo for all parties under the Amended and Restated Final Funding Agreement. The transaction demonstrates that legal innovation can provide a solution to even the most complex of problems.
He added: “James Hardie’s transformation to an SE and relocation from the Netherlands to Ireland will provide a model for many other major European companies wishing to take up the SE corporate form and realise the benefits of the SE regulation.”
Development of the transaction structure required a complex assessment of the current limitations on James Hardie as a Dutch public company and the suitability of an Irish SE as the holding company of a major global building products group with operations primarily in North America and Asia Pacific and securities traded on both ASX and NYSE.
James Hardie claims the move should improve its chances of qualifying for tax benefits in the US, which it had failed to achieve through its move to the Netherlands in 2001.
Blue said that regardless of the move James Hardie would honour all existing agreements relating to compensation for asbestos victims. “The company has been very responsible in that regard,” he said. “One of the main objectives was to leave those existing arrangements as undisturbed as possible.
However, Unions NSW and the Asbestos Diseases Foundation of Australia claim the company’s almost $90 million budget for the move to Ireland would have been better spent on the victims of asbestos-related diseases associated with their products in the past.
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