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1 This Webcast Will Begin Shortly If you have any technical problems with the Webcast or the streaming audio, please contact us via at: Thank You! 1

2 Meritas firms in Australia and new Zealand Brisbane Cairns Townsville Queensland Sydney New South Wales Auckland New Zealand Deakin Australian Capital Territory Melbourne Victoria West Perth Western Australia 2

3 Finding Common Ground: Comparing Corporate, Contract & Employment Practices in Australia and the US Thursday, March 23, 2017 Presented By: Swaab Attorneys, Sydney Madgwicks Lawyers, Melbourne & Snedden Hall & Gallop, ACT Association of Corporate Counsel 3

4 Speaker Edei Pippin Ledet Senior Associate Swaab Attorneys Ms Ledet is uniquely qualified to advise public and private companies in M&A, capital markets, finance, fundraising, PE/ VC/Angel funding, foreign investment, regulatory & corporate governance matters with: +5 years experience in top tier private practice in the US; and +10 years experience in Australia, divided between: top-tier corporate M&A practice; and in-house legal for one of Australia's largest, publicly-traded banking and financial services businesses. 4

5 Speaker Michelle Dawson Partner Madgwicks Lawyers Michelle Dawson has practiced for approximately 12 years, almost exclusively in the area of workplace relations and is a Law Institute of Victoria Accredited Workplace Relations Specialist. She advises employers in a diverse range of industries and is a wellpracticed advocate in all areas of employment law. 5

6 Speaker Emily Shoemark Senior Associate Snedden Hall & Gallop Lawyers Emily Shoemark specialises in business law where she assists Snedden Hall & Gallop clients with commercial transactions, intellectual property and employment law matters. As the head of the IP and IT team, she provides advice that is both practical and up-to-date. Emily is well-versed in current technological developments and the impact those developments have on clients' intellectual property rights. 6

7 Administrative information Today s program will be conducted in a listen-only mode. To ask an online question at any time throughout the program, click on the audience questions link on your screen. Time permitting, we will answer your question during the session. If we don t have time, we are happy to answer your questions after the presentation. Everything we say today is opinion. We are not dispensing legal advice, and listening does not establish an attorney-client relationship. This discussion is off the record. You may not quote the speakers without our express written permission. 7

8 Comparing Corporate & Contract Practices in Australia and the US Presented By: Edei Pippin Ledet Senior Associate Swaab Attorneys 8

9 Distinctions between the US and AUS Overcoming the language barrier: Australian "Plain English" & American legalese Different types of company structures Different approaches to drafting contracts Secured Property: Registering security interests on assets located in the US & Australia 9

10 Overcoming the Language Barrier TRANSLATING PLAIN ENGLISH INTO LEGALESE ACN Aus Company Number ABN - Aus Business Number Sole Trader Shares TFN ATO Tax File Number GST Goods & Services Tax Cth Commonwealth Consolidated Acts State Incorporation Number DBA doing business as Stock TIN IRS Tax Identification Number USC US Code 10

11 Choosing the Corporate Structure TYPE OF ENTITIES Sole trader Partnership Trust Unit trust Discretionary Trust Company Limited by shares Limited by guarantee (NFP) No liability (mining) Sole proprietor / sole trader Partnership Limited Partnership (LP) Limited Liability LP (LLLP) Limited Liability Company (LLC) Company Incorporated (Inc) S-Corp 501(c)(3) 11

12 Distinctions between companies Limited by shares Limited Ltd (public) Listed (ASX) or Unlisted Proprietary Limited Pty Ltd (private) Small Large Incorporated Inc or C-Corp Public (listed) NYSE, NASDAQ, etc Private (unlisted) S-Corp (small) 12

13 Where to incorporate? Federal Law Corporations Act 2001 (Cth) Incorporate in a state or territory Lodge documents with ASIC Public information Shareholders & Directors Ultimate holding company Documents lodged Federal Law State Law Consistent across 50 states (not Identical ) Register with Office of Secretary of State (each state) Public information varies 13

14 Contract terminology and style DIFFERENT APPROACHES PLAIN ENGLISH 2. Deed The parties intend this document to take effect as a deed. LEGCLASSIC LEGALESE Now therefore, for ten dollars and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and intending to be legally bound hereby, Party A and Party B hereby agree as follows 14

15 Contract terminology and style DIFFERENT APPROACHES PLAIN ENGLISH RESPONSE Short sentences Headings and subheadings Table of contents Defined terms Schedules set out detailed information White space Law firms have unique style guides Not enough detail Too much omitted Vague or overly broad Cascading terms are confusing Agreements are unnecessarily long (too much white space) 15

16 Contract terminology and style DIFFERENT APPROACHES DETAILED & DENSE Long sentences Long paragraphs Fewer headings and subheadings Formal language Whereas Now therefore, for ten dollars and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and intending to be legally bound hereby, Party A and Party B hereby agree as follows RESPONSE Unnecessary detail Long sentence structure unwieldy and difficult to interpret Agreements are unnecessarily dense Formal language Not enough white space 16

17 Secured Property REGISTERING YOUR SECURITY INTERESTS AGAINST ASSETS LOCATED IN PPSR Personal Properties Securities Register (PPSR) Register Machinery, equipment, IP, Trademarks, Patents Property over which retention of title is assured Not Register Real Property & fixtures UCC Article 9 of the Uniform Commercial Code (UCC) File financing statement ( 9-310(a)) Register security interest Machinery, equipment, personal property, IP, Trademarks, Patents Real property & fixtures Agricultural liens UCC filings are public records PPSR registrations are public records 17

18 Comparing employee non-compete arrangements in Australia and the US Presented By: Michelle Dawson Partner Madgwicks Lawyers 18

19 Australia: The Doctrine of Restraint of Trade At common law, a restraint of trade is contrary to public policy and void unless it can be shown that the restraint is, in the particular circumstances of the case, a reasonable one: Nordenfelt v Maxim Nordenfelt Guns & Ammunition [1894] AC 535 at 565. The rationale for the doctrine against restraint of trade is that: every man shall be at liberty to work for himself, and shall not be at liberty to deprive himself or the state or his labour, skill, or talent, by any contract that he enters into (Herbert Morris Ltd v Saxelby [1916] 1 AC 688, 701). 19

20 A Legitimate Business Interest Courts will enforce a restraint so long as it goes no further than is necessary to protect an employer s legitimate business interest. Specific interests recognised at common law as being legitimate business interests which are protectable by appropriate restraint covenants include: customer connection staff stability confidential information 20

21 No more than is reasonably necessary To be enforceable, the restraint covenant must do no more than is reasonably necessary to protect the legitimate interest. Any restraint that goes beyond what the Court considers to be reasonable protection must be struck down. The test is whether the restraint offers reasonable protection for the legitimate interest that the employer claims, without going beyond what is reasonable. 21

22 Types of restraint Non-compete (cannot work for a competitor/in industry) Non-solicitation (i.e. of customers, suppliers etc.) Non-poaching (i.e. of staff) Prohibiting the use of confidential information 22

23 Protecting and enforcing your intellectual property rights in Australia and the US Trade marks and Copyright Presented By: Emily Shoemark Senior Associate Snedden Hall & Gallop Lawyers 23

24 Copyright- Australia & USA Berne Convention Transnational protection Automatic protection to signatories 24

25 Copyright - Australia & USA What is protected and for how long? What rights does the owner have? Enforcement of rights Australia USA 25

26 Trade mark Trade mark v trademark What can be registered as a trade mark? 3D shapes, sounds and smells Make America Great Again 26

27 Trade mark Protection- Australia & USA Registration Not mandatory, but recommended Process similarities and differences Description of goods/services timeframes How long is protection for? 27

28 Trademark Protection- Australia & USA Use of Trademark Australia no proof of use needed for application USA Proof of use or intention to use Statement use between 5th and 6th years Statement of use at renewal 28

29 Trade mark Australia & USA Madrid protocol Filing treaty World Intellectual Property Organisation 29

30 Q & A Overcoming the language barrier: Australian "Plain English" & American legalese Corporate structure: Distinctions between US and Australian company structures Contract terms: Different approaches used in Australia and the US Secured Property: Registering security interests on assets located in the US & Australia Employment: Comparing employee non-compete arrangements in Australia & US Trade marks and Copyright: Key differences between US and Australian IP laws 30

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