6th Australia New Caledonia Business Forum Brisbane 18 June 2010

1. Business Structures in New Caledonia 6th Australia New Caledonia Business Forum Brisbane 18 June 2010

2. Practical tips to set up your business in New Caledonia with a local partner with your own employees Choice of a structure Non- incorporated Incorporated Key points

3. Protecting your assets overseas Managing the local team Managing shareholders relations Overseas joint ventures: issues

4. Industrial/Intellectual property Key asset Register trademarks/ logo/ patents/ designs/ domain names etc. over the territory Ascertain which entity is the owner of the IP Set up a licence contract with local entity Protecting your business overseas

5. Protecting your business overseas II • No compete clause • Local joint venture partner: • In a shareholders’ agreement • In a management agreement • Local staff: • In employment contracts • Must be reasonable and limited as to area, duration and type of activity

6. Sale of goods or equipment Dispute resolution clause: Avoid cost of international litigation Internal process / Mediation / Conciliation Retention of title clause: Easier reclaim of unpaid goods or equipment Must be express Only applies to identifiable goods/equipment Protecting your business overseas III

7. Confidentiality clause No compete clause Reporting Scope and limits of authority In employment contract In constitution of local company Assumption of broadest authority with third parties Joint managers If exceeds authority: remedies Managing your local team

8. Key clauses In shareholders’ agreement, constitution or in management agreement Clauses: Duties, scope of authority Reporting Sale of shares, change of control No compete Confidentiality Managing shareholders relations

9. Managing shareholders relations II

10. Tax representative Representation desk Branch Company Structuring your overseas business

11. Temporary or permanent Direct implantation on local market Direct control by head office Direct profit/loss Unlimited liability Overseas branch

12. Advantages Cheap to set up / run Local knowledge Temporary or permanent Confidence with clients and authorities IP remains with Australian entity Disadvantages Direct commercial and legal risk Management of double taxation impact on local profits No local partner other than as employee Overseas branch II

13. Advantages More permanent More confidence with local clients and authorities Local partner possible liability limited to local market Disadvantages More expensive to run Statutory regime to comply with More complex contractual set-up with mother company Corporate structures

14. Corporate structures II • No limitation on nationality of shareholders • French particularities: • Share capital: • Minimum amount, obligation to pay up at incorporation • Contributions: cash / assets / labour • Cumulating directorship and employment contract • “Must be allowed to trade” • Company tax or shareholder taxation

15. Limited liability companies For convenience, amounts are converted into Australian dollars

16. Limited liability companies II

17. Limited liability companies III For convenience, amounts are converted into Australian dollars

18. Limited liability companies IV

19. Other joint venture companies For convenience, amounts are converted into Australian dollars

20. Other joint venture companies II For convenience, amounts are converted into Australian dollars

21. Other joint venture companies III

22. Different legal system: Forget your assumptions Reporting: Ensure good communication Assets and goodwill: Protect your business Conclusion

23. Contacts • Véronique Morgan-Smith • Special Counsel • Solicitor – NSW • Avocat – France • NAATI Translator • Practice areas Commercial and Corporate Corporate Governance Mergers & Acquisitions Resources and Energy IT • Sydney • +61 (0) 423 191 723 • veronique.morgansmith@oceanie.com.au