Better Boards Conference 2013

1. Better Boards Conference 2013 “But I thought we were Partners?!” Challenges, Risks and Realities of “Partnering”, “Sharing” and “Collaborating” Victor Hamit B.Ec (Acc) LLB FAICD CTADirectorWentworth LawyersLevel 40140 William Street, Melbournevhamit@wentworthlawyers.com.au Liability limited by a scheme approved under the Professional Standards Legislation

2. Memorandum of Understanding MOU

3. MOU Statement of Intent Memorandum of Understanding Statement of Agreement Heads of Agreement Memorandum of Agreement Statement of Principles Statement of Undertaking Letter of Intent

4. MOU – Critical Factors • Intention to create legal obligations • Yes • No • In part • Certainty • What is it that we are trying to achieve?

5. MOU • Certainty can assist Non Binding MOU “By working co-operatively within mutually beneficial working arrangements and within an accessible and integrated service framework …” • Legal Status“Legal status: This MOU is not legally binding”

6. MOU Non Binding MOU – Perceived Advantages and Uses • parties feel “bound” • greater moral commitment • reduces risk of misunderstanding • expression of intent to third party • “aide memoire” for formal contract • parties not legally bound

7. MOU • Partly binding examples • Confidentiality • Dispute Resolution • Intellectual Property

8. MOU • Why are we doing this? • What do we want out of it? Risks • Creating legal obligations when not intended • Not creating legal obligations when intended • Potential liability

9. MOU Do both parties have an agreed view of what these terms mean? • “Partnering” • “Sharing” • “Collaborating”

10. MOU • “Partner” • A sharer or partaker, an associate • One of two people sharing a relationship, as a married couple • One’s companion in a dance • A player on the same side with another in a game • (Plural) Nautical fore-an-aft vertical metal plating fitted underneath a ship’s deck to strengthen it where it is cut for a mast, capstan, pump, etc. Macquarie Dictionary – Revised Third Edition

11. MOU • Partnership • The state or condition of being a partner; participation; association; joint interest • Cricket the period during which the two people batting stay at the wicket together, usually with reference to the runs scored by them Macquarie Dictionary – Revised Third Edition • Partnership – legal definition • The relation that exists between persons carrying on a business in common with a view to profit Butterworths Concise Australia Law Dictionary Third Edition • Partnership – MOU definition • “Partnership means two or more organisations working together based on a shared vision to achieve common goals”

12. MOU • Common risks • Identify the parties • Binding, not binding or part binding (be clear) • Confidentiality and Privacy • Media statements • IP ownership • Risk assessment – potential for liability (who bears it) • Dispute resolution • Objectives/outcomes

13. MOU - Summary • Clarify your purpose or objectives • Legal obligations? • Certainty • Be clear • Think risk assessment – potential for liability • Inevitably lack of clarity leads to unhappiness

15. Better Boards Conference 2013 “But I thought we were Partners?!” Challenges, Risks and Realities of “Partnering”, “Sharing” and “Collaborating” Victor Hamit B.Ec (Acc) LLB FAICD CTADirectorWentworth LawyersLevel 40140 William Street, Melbournevhamit@wentworthlawyers.com.au Disclaimer: This presentation is of a general nature only. Legal advice should be obtained in relation to any specific circumstances. Liability limited by a scheme approved under the Professional Standards Legislation