Exhibit 8.3
|
|
|
|
|
Skadden, Arps, Slate, Meagher & Flom llp |
|
|
|
|
1440 NEW YORK AVENUE, N.W.
|
|
FIRM/AFFILIATE
|
|
|
WASHINGTON, D.C. 20005 - 2111
|
|
OFFICES |
|
|
|
|
|
|
|
TEL: (202) 371-7000
|
|
BOSTON |
|
|
FAX: (202) 393-5760
|
|
CHICAGO |
|
|
www.skadden.com
|
|
HOUSTON |
|
|
|
|
LOS ANGELES |
|
|
|
|
PALO ALTO |
|
|
|
|
SAN FRANCISCO |
|
|
|
|
WASHINGTON, D.C. |
|
|
|
|
WILMINGTON |
|
|
|
|
|
|
|
|
|
BEIJING |
|
|
|
|
BRUSSELS |
|
|
|
|
FRANKFURT |
|
|
|
|
HONG KONG |
|
|
|
|
LONDON |
|
|
|
|
MOSCOW |
|
|
|
|
MUNICH |
|
|
April 13, 2010
|
|
PARIS |
|
|
|
|
SÃO PAULO |
|
|
|
|
SHANGHAI |
|
|
|
|
SINGAPORE |
|
|
|
|
SYDNEY |
|
|
|
|
TOKYO |
|
|
|
|
TORONTO |
|
|
|
|
VIENNA |
|
|
The Managing and Supervisory
Boards of Directors of James Hardie Industries SE
Atrium, 8th floor
Strawinskylaan 3077
1077 ZX Amsterdam, The Netherlands
|
Re: |
|
James Hardie Industries SE |
Ladies and Gentlemen:
We have acted as special United States tax counsel to James Hardie Industries N.V., a public
limited liability corporation registered in The Netherlands (the Company), in connection
with the registration of 102,000,000 ordinary shares, par value 0.59 per share (the
"Securities), of James Hardie Industries SE (the Issuer) as a result of the
transformation of the Company from a public limited liability corporation organized in The
Netherlands (Naamloze Vennootschap (NV)) to a European Company (Societas Europaea (SE)) pursuant to
the merger of a newly-formed subsidiary of the Company incorporated in Ireland with and into the
Company. In that capacity, we previously rendered our opinion to the Company concerning material
United States federal income tax consequences of the Proposal (as defined in the Prior Registration
Statement, described below). At your request, we are rendering our opinion concerning material
United States federal income tax consequences of Stage 2 of the Proposal (as defined in the
Registration Statement, described below). At this time, Stage 1 has been
implemented and the shareholder vote to approve the implementation of Stage 2 is pending. All
capitalized terms used but not defined herein shall have the meaning ascribed to them in the
Registration Statement.
In the above capacity, we have reviewed (i) the registration statement on Form F-4 (File No.
333-160177) relating to the Securities filed by the Company on July 20, 2009 with the Securities
and Exchange Commission under the Securities Act of 1933 (the Prior
The
Managing and Supervisory
Boards of Directors of James Hardie Industries SE
April 13, 2010
Page 2
Registration Statement), (ii) the registration statement on Form F-4
relating to the Securities filed by the Issuer on April 13, 2009 with the Securities and Exchange
Commission under the Securities Act of 1933 (the Registration Statement) and (iii) such
other documents as we have deemed necessary or appropriate in order to enable us to render the
opinion below. We have relied upon statements and representations made by the Issuer (including in
its capacity as the successor to the Company) and have assumed that such statements and
representations are true without regard to any qualifications as to knowledge and belief.
For purposes of our opinion, we have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified, conformed,
photostatic or electronic copies, and the authenticity of the originals of such latter documents.
We have assumed that such documents, certificates, and records are duly authorized, valid, and
enforceable. Where documents have been provided to us in draft form, we have assumed that the
final executed versions of such documents will not differ materially from such drafts.
In rendering our opinion, we have considered applicable provisions of the Internal Revenue
Code of 1986, as amended, Treasury regulations promulgated thereunder, pertinent
judicial authorities, published opinions and administrative pronouncements of the Internal Revenue
Service and other applicable authorities, and income tax treaties to which the United States is a
party, all as in effect and available on the date of the Registration Statement and all of which
are subject to change or differing interpretations, possibly with retroactive effect. A change in
any of the authorities upon which our advice is based could affect our conclusions herein. There
can be no assurance, moreover, that our opinion will be accepted by the Internal Revenue Service
or, if challenged, by a court.
On the basis of the foregoing and subject to the limitations, qualifications, exceptions and
assumptions set forth in the Registration Statement and herein, we are of the opinion that,
although the description in the Registration Statement under the heading Material Tax
Considerations of the ProposalUS Federal Income Tax Consequences of Stage 2 of the Proposal
does not purport to describe all possible U.S. federal income tax consequences to US Holders of
Stage 2 of the Proposal, under present U.S. federal income tax law, such description fairly
summarizes, in all material respects, the U.S. federal income tax consequences of Stage 2 of the
Proposal applicable to US Holders.
Except as set forth herein, we express no opinions or views regarding the U.S. federal income
tax consequences of the Proposal or any other transaction related to the Proposal.
This opinion is expressed as of the date hereof, and we are not under any obligation to
supplement or revise our opinion to reflect any legal developments or factual matters arising
subsequent to the date hereof or the impact of any information, document, certificate, record,
statement, representation, covenant, or assumption relied upon herein that
The
Managing and Supervisory
Boards of Directors of James Hardie Industries SE
April 13, 2010
Page 3
hereafter becomes incorrect or untrue. In addition, any changes to either the Registration
Statement or the other documents referred to above could affect our conclusions herein.
We hereby consent to the filing of this opinion with the Securities and Exchange Commission as
an exhibit to the Registration Statement. We also consent to the reference to our firm under the
caption Legal Matters in such Registration Statement. In giving this consent, we do not thereby
admit that we are included in the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange
Commission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP