Exhibit 99.1
28 May 2010
Address to 2010 Extraordinary Meetings
Michael Hammes, Chairman, James Hardie Industries SE
Stage 1 of the Proposal to change our domicile was approved last August with over 99% of votes
cast at the extraordinary general meeting being in favour.
In February this year, James Hardie completed its transformation from a public limited
liability corporation registered in The Netherlands to a European company registered in The
Netherlands.
We are now asking you to approve the move of our corporate domicile from The Netherlands to
Ireland so that JHI SE will become an Irish SE, subject to Irish law in addition to the SE
Regulation.
With your support at our extraordinary meetings today and in Amsterdam next Wednesday, we will
resolve one of the more complex issues that this company has had to deal with since 2004.
Key benefits of the Proposal
The move of our corporate domicile to Ireland is expected to deliver benefits in areas as
diverse as our business operations, governance and shareholder distributions. Most
importantly:
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our key senior managers will be able to spend more time in our operations and markets; |
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we will have greater certainty under the US/Irish Tax Treaty than is the case under the
US/Netherlands Tax Treaty; |
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our flexibility to undertake certain transactions under Irish company law will be
increased, which your directors believe expands the companys future strategic options; |
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our governance structure will be simplified to a single board of directors; and |
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most of our shareholders will be eligible to receive dividends not subject to
withholding tax. |
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As part of realising these benefits last October, following shareholder approval of Stage 1, we
set up James Hardies office on Harcourt Street in central Dublin. The office already houses
nine of the 12 to 13 people we plan to base there and manages our Treasury and Intellectual
Property functions. The companys Secretariat will also be relocated to Dublin in the very near
future.
We also appointed two Irish directors, James Osborne and David Dilger, whose skills and
experience have already proven invaluable in our preparations to become an Irish SE company.
What the Proposal means for shareholders
For you as shareholders, the re-domicile to Ireland will be relatively seamless.
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Shareholders will continue to hold the same securities |
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James Hardie will continue to be listed on the ASX and NYSE, and |
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Most shareholders will be able to receive distributions free of dividend withholding
tax, though to obtain this exception shareholders will be required to file a non Irish
resident declaration form which will be made available to them. |
Costs of the Proposal
There are costs associated with the Proposal. When we issued the Explanatory Memorandum for
Stage 1 of the Proposal, we estimated the transaction and implementation costs of the proposal
and the transfer of our Intellectual Property and Treasury and Finance operations would be in
the range of US$51-71 million.
These costs are now calculated to be approximately US$63 million, including around US$20
million in advisory fees and other expenses incurred in connection with the implementation of
Stage 1, and approximately US$41 million in Dutch taxes as a result of a capital gain on the
transfer of our Intellectual Property and the exit from the Financial Risk Reserve regime in
The Netherlands and the termination of that regime.
The remaining estimated costs of approximately US$2 million consist primarily of advisory fees
and other expenses expected to be incurred in connection with the implementation of Stage 2.
Consultation Process
When I spoke to shareholders at the Stage 1 Extraordinary Information Meeting last year, I
recall there were several comments about the proposed articles of association for Irish SE and
you asked for an opportunity to provide additional feedback to the company.
We welcomed that feedback and consulted with a number of relevant parties, including the
Australian Shareholders Association.
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After considering the comments we received, we made a number of changes to the proposed
articles of association for Irish SE.
The most significant of these changes include:
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eliminating the ability of directors of Irish SE to remove a fellow director; |
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setting a single percentage ownership threshold and simplifying the information
requirements for shareholders to put items on the agenda of general meetings or nominate
directors; |
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and increasing the minimum notice period for all extraordinary general meetings. |
Dividends
We also received a number of questions concerning the companys dividend specifically the
issue of when we plan to reinstate the dividend. I know this is not relevant to the resolution
before the EGM, but I want to deal with this now because it is clearly a matter of concern to
some shareholders who used their question forms to contact us.
The company announced on 20 May 2009 that it would omit the year-end dividend for fiscal year
2009 to conserve capital and that, until such time as market and global economic conditions
improve significantly and the level of uncertainty surrounding future industry trends and
company-specific contingencies dissipates, the company will continue to omit dividends.
While there has been some recovery in the markets in which we operate, there still exists a
high level of uncertainty. Furthermore, we still await judgment in our dispute with the
Australian Tax Office.
The Board understands shareholders desire for dividends, but until the company has more
clarity on these matters, we have determined that it continues to be appropriate to omit
dividend payments.
AGMs to be held in Ireland
Additionally, as we explained in the Explanatory Memorandum, completion of the Proposal will
mean some changes to our shareholder meetings, so I want to use this meeting to reassure you
that this certainly is not going to be the last time you have an opportunity to meet me, or
address your Board of Directors.
As you know, if Stage 2 is approved, we will hold our 2010 Annual General Meeting in Ireland,
but we will do this in a manner that allows you to attend a meeting in Sydney, follow the
meeting in Dublin on simulcast, and fully participate in the AGM including asking questions
of me, or other directors, or the auditors.
In many ways, the meeting will be closer to a standard AGM with discussion and voting taking
place in real time. If you complete the relevant section of your Voting Instruction Form, you
will be able to cast your vote at the meeting.
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Louis and Russell and I will continue to travel to Australia and will present our half and full
year results here and meet with shareholders and management.
Payments to the Asbestos Injuries Compensation Fund
I want to take this opportunity to repeat that implementing the Proposal will not change James
Hardies overall commitment to make contributions to the Asbestos Injuries Compensation Fund
under the Amended and Restated Final Funding Agreement.
Indeed, as we noted in the Explanatory Memorandum, because the AICFs capacity to satisfy
claims is linked to the long-term financial success of James Hardie, especially the companys
ability to generate net operating cash flow, completing the Proposal is expected to have medium
and long-term benefits for the Fund.
Following the announcement of our full-year results yesterday, I can confirm that James Hardie
intends to make a funding payment of approximately US$64 million to the AICF in the second
quarter of fiscal year 2011.
This amount represents 35% of the companys net operating cash flow for fiscal year 2010 in
accordance with the Amended Final Funding Agreement.
Summary
Finally, in summary, a review of the companys domicile was completed over several years and
concluded that it was in the best interest of James Hardie and its shareholders to transform
James Hardie into a European company and move the corporate domicile from The Netherlands to
Ireland.
Other options were considered. However due to a number of factors and the complexity of
operating in multiple jurisdictions, many options were not considered viable or appropriate.
Moving the domicile to Ireland offers considerable operational and strategic benefits and
simplifies the companys governance model without disadvantaging shareholders and other
stakeholders.
Although there are costs involved, the Proposal to move the domicile to Ireland is considered
by the directors to be the best course of action at this time for James Hardie and its
shareholders.
End
Media/Analyst Enquiries:
Sean O Sullivan
Vice President Investor and Media Relations
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Disclaimer: Forward looking statements
This address, and other statements that James Hardie Industries SE (James Hardie) may make,
including statements about the benefit of James Hardies re-domicile to Ireland as an Irish SE
(the Proposal) may contain forward-looking statements. James Hardie may from time to time make
forward-looking statements in its periodic reports filed with or furnished to the United States
Securities and Exchange Commission on Forms 20-F and 6-K, in the annual reports to
shareholders, in offering circulars, invitation memoranda and prospectuses, in media releases
and other written materials and in oral statements made by the companys officers, directors or
employees to analysts, institutional investors, existing and potential lenders, representatives
of the media and others. Statements that are not historical facts are forward-looking
statements and such forward-looking statements are statements made pursuant to the Safe Harbour
Provisions of the Private Securities Litigation Reform Act of 1995. Examples of forward-looking
statements include:
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statements about the companys future performance; |
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projections of the companys results of operations or financial condition; |
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statements regarding the companys plans, objectives or goals, including those relating
to its strategies, initiatives, competition, acquisitions, dispositions and/or its products; |
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expectations concerning the costs associated with the suspension or closure of
operations at any of the companys plants and future plans with respect to any such plants; |
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expectations that the companys credit facilities will be extended or renewed; |
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expectations concerning dividend payments; |
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statements concerning the companys corporate and tax domiciles and potential changes
to them, including potential tax charges; |
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statements regarding tax liabilities and related audits, reviews and proceedings; |
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statements as to the possible consequences of proceedings brought against the company
and certain of its former directors and officers by the ASIC; |
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expectations about the timing and amount of contributions to the AICF, a special
purpose fund for the compensation of proven Australian asbestos-related personal injury and
death claims; |
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expectations concerning indemnification obligations; and |
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statements about product or environmental liabilities. |
Words such as believe, anticipate, plan, expect, intend, target, estimate,
project, predict, forecast, guideline, aim, will, should, continue and similar
expressions are intended to identify forward-looking statements but are not the exclusive means
of identifying such statements. Readers are cautioned not to place undue reliance on these
forward-looking statements and all such forward-looking statements are qualified in their
entirety by reference to the following cautionary statements.
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Forward-looking statements are based on the companys estimates and assumptions and because
forward-looking statements address future results, events and conditions, they, by their very
nature, involve inherent risks and uncertainties. Such known and unknown risks, uncertainties
and other factors may cause the companys actual results, performance or other achievements to
differ materially from the anticipated results, performance or achievements expressed,
projected or implied by these forward-looking statements.
These factors, some of which are discussed under Risk Factors in James Hardies registration
statement (described below under the heading Additional information and where to find it)
include, but are not limited to:
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all matters relating to or arising out of the prior manufacture of products that
contained asbestos by current and former James Hardie subsidiaries; |
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required contributions to the AICF, any shortfall in the AICF and the effect of
currency exchange rate movements on the amount recorded in the companys financial
statements as an asbestos liability; |
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compliance with and changes in tax laws and treatments; |
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competition and product pricing in the markets in which the company operates; |
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the consequences of product failures or defects; |
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exposure to environmental, asbestos or other legal proceedings; general economic and
market conditions; |
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the supply and cost of raw materials; the success of research and development efforts; |
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reliance on a small number of customers; |
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a customers inability to pay; |
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compliance with and changes in environmental and health and safety laws; |
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risks of conducting business internationally; |
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the companys proposal to transfer its corporate domicile from The Netherlands to
Ireland to become an Irish SE company; |
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compliance with and changes in laws and regulations; |
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currency exchange risks; |
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the concentration of the companys customer base on large format retail customers,
distributors and dealers; |
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the effect of natural disasters; |
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changes in the companys key management personnel; |
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inherent limitations on internal controls; |
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use of accounting estimates; and |
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all other risks identified in the companys reports filed with Australian, Dutch and
US securities agencies and exchanges (as appropriate). |
The company cautions that the foregoing list of factors is not exhaustive 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 and are
statements of the companys current expectations concerning future results, events and
conditions.
Additional information and where to find it
In connection with the Proposal, James Hardie has lodged with Australian Securities Exchange
(ASX) and filed with the United States Securities and Exchange Commission (SEC) a Registration
Statement on Form F-4 with additional information concerning the
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Proposal, including a copy of an Explanatory Memorandum/prospectus. The Registration Statement
was declared effective by the SEC on April 21, 2010.
While there is no new issue of securities involved in the Proposal under Australian law, under
the US federal securities law James Hardie Industries SE is treated as a new registrant and the
Explanatory Memorandum constitutes a prospectus for the purposes of US federal securities law.
The Explanatory Memorandum is not a prospectus for the purposes of Australias Corporations
Act, 2001. Accordingly, it does not contain all of the information that would be required to be
contained in an Australian prospectus and has not been, and will not be, lodged with the ASIC.
Investors and security holders of James Hardie are urged to read the Explanatory Memorandum and
any amendments, as well as any other relevant documents lodged or filed with the ASX or SEC as
they become available because they contain and will contain important information about James
Hardie and the Proposal. The Registration Statement, James Hardies Annual Report on Form 20-F
and James Hardies subsequent reports filed with or furnished to the SEC and other relevant
materials (when they become available) may be read and copied at the SECs public reference
room located at 100 F Street, N.E., Washington, D.C. 20549. Information on the operation of
the Public Reference Rooms may be obtained by calling the SEC at 1-800-SEC-0330. The SEC also
maintains a website, www.sec.gov, from which any electronic filings made by James Hardie may be
obtained without charge. In addition, investors and security holders may obtain copies of the
documents filed with or furnished to the SEC upon oral or written request without charge.
Requests may be made by calling the Information Helpline in Australian at 1800 675 021 (between
8.00am and 5.00pm AEST) or elsewhere in the world at +1-949-367-4900 (between 8.00am and 5.00pm
US Central Time) or in writing by regular and electronic mail at the following address: James
Hardie Industries SE, Atrium, 8th Floor, Strawinskylaan 3077, 1077 ZX Amsterdam, The
Netherlands, Attention: Company Secretary; email:
[email protected].
All material documents filed with the SEC will also be lodged with the ASX and posted on the
James Hardie Investor Relations website (www.jameshardie.com, select James Hardie Investor
Relations).
Participants in the solicitation
James Hardie and its executive officers and directors may be deemed to be participants in the
solicitation of proxies from the shareholders of James Hardie in connection with the Proposal.
Information about the executive officers and directors of James Hardie and their ownership of
James Hardie common stock is set out in the Explanatory Memorandum forming part of the
Registration Statement.
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