Top 5 Things You Need to Know to Keep Your

Electronic Documents Legal and Secure July 16, 2013

Top 5 Things You Need to Know

1.  Know the law

2.  Require the highest level of security in your document ecosystem

3.  Understand electronic chattel paper

4.  Understand eTransaction management

5.  Implementation best practices

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1960s Mainframe Computing

1970s Mini

Computing

1980s Client / Server

Computing

1990s Cloud

Computing

2000s Social

Networking

2010s Mobile

Computing

Next Step

Fully Digital Financial Services

About DocuSign Vision

Empower organizations to “keep business digital.”

with DocuSign eSignature Transaction Management Solutions

Everyone’s Mobile

Transactions Growing

Consumers Digital

Digitally anytime, any place, any device.

Leveraging Key Trends

2009 2010 2011 2012 2013

Exponential Growth

Next Major Step in Productivity

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More than 37M users growing to 60M

More than 63,000 users a day

Up to 5M pages a day

More than 65,000 customers

189 countries

DocuSign Network Taking Off

1. Know the Law: UETA and ESIGN Overview

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2. Require a Broad Set of Security Certifications

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§  Data Privacy

§  Collection of Data

§  Use of Data

§  Data Requirements §  Protection of Data

§  General Computing Controls Focus

§  Comprehensive Scope

§  Security Framework

§  Testing of Controls

§  Measures Effectiveness

§  Reliability of Service

§  Global Security Gold Standard: ISO 27001

§  Defines An (ISMS) Information Security Management System

§  Requires Business Continuity

§  Streamlined process for EU privacy law compliance

DocuSign Security

Customer Benefits

Confidentiality

Integrity

Availability

Authenticity

Non-Repudiation

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DocuSign Security Assurance Program

Security Assurance Program Benefits

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Confidentiality Customer documents and data are private, and access is workflow controlled

Integrity Documents, both in progress and completed, are tamper-proof

Availability Critical service is accessible to customers 365x24x7

Authenticity Third parties (such as courts) can rely on validity of signers as well as documents

Non-Repudiation Documents are technically, legally, and procedurally irrefutable

eOriginal

Certified Print®

TOLEC

Transfer Ownership

Destruction

Over 23 million financial transactions managed within the eOriginal eVaults.

Over $1T of transferable assets under management within eOriginal eVaults.

Our Vision Enabling the post-execution management of secure, legally compliant and enforceable electronic eSignatures and transactions consisting of high value assets or source records throughout their lifecycle.

3. Understanding Electronic Chattel Paper: Brief History

§  In 2000, Congress enacted the Electronic Signatures in Global and National Commerce Act (E-Sign Act).

§  Its purpose was to facilitate the use of electronic records and signatures and ensure the validity of electronic contracting.

§  In addition to the federal E-Sign Act, all but 3 states have enacted the Uniform Electronic Transactions Act (UETA) -- and the other 3 states have enacted similar laws over which the eSign Act is potentially preemptive.

§  The E-Sign Act did not do anything to change the basic rules of contract law, preserves underlying consumer protection laws and the consumer's right to receive certain information in writing.

§  Its purpose, as set forth in Section 101(a) of the E-Sign Act, was to make it clear that a signature, contract, or other record could not be considered invalid or unenforceable just because it was done in an electronic format.

§  Under Section 101(d) and (e), however, an electronic contract could be invalid or unenforceable if the electronic record was not capable of being retained and accurately reproduced for later reference.

§  Contracts, Leases or other financial assets are often securitized or pledged as collateral to lenders that provide financing to different industries.

§  If the contract is "chattel paper," then the lender may perfect by either filing or by taking possession of the contract (with possession taking priority).

§  If the contract is created in an electronic format, then it may be "electronic" chattel paper.

§  If the contract is electronic chattel paper, then the lender may perfect by taking "control" of the contract.

§  Key to remember -- “control" is to electronic chattel paper what "possession" is to chattel paper (in terms of priority).

3. Understanding Electronic Chattel Paper:

§  So what does it mean to take "control" of electronic chattel paper?

§  Under Article 9-105 of the UCC, a secured party has “control” of electronic chattel paper if the record or records comprising the chattel paper are created, stored and assigned in such a manner that each of following six criteria are met:

1.  A single authoritative copy of the record exists that is unique, identifiable, and, except as provided below (in 4, 5 and 6), has not been altered;

2.  The authoritative copy identifies the secured party as the assignee of the record or records;

3.  The authoritative copy is communicated to and maintained by the secured party or its custodian

3. Understanding Electronic Chattel Paper: Legal Requirements

3. Understanding Electronic Chattel Paper: Legal Requirements

4.  Copies or revisions that add or change the identified assignee of the authoritative copy can only be made with the participation of the secured party;

5.  Each copy of the authoritative copy (or any copy of a copy) is readily identifiable as a copy that is not the authoritative copy; and

6.  Any revision of the authoritative copy is readily identifiable as an authorized or unauthorized revision.

Note: The 2010 amendments to Article 9 -105, effective July 1, 2013, add a general rule of control satisfied “if a system employed for evidencing the transfer of interests in the chattel paper reliably establishes the secured party as the person to which the chattel paper was assigned.”

The satisfaction of the six criteria above become a safe harbor for meeting this general rule.

§  That is what Article 9-105 tells us; what Article 9-105 does not tell us is how to go about complying with each of these criteria

ü  No guidance that says “If you do A, B or C, then you satisfy a certain requirement”

ü  Largely left to the marketplace to determine best practices

ü  Little case law, even additional revisions to Article 9-105 offer little help

§  The "control" standard set forth in UCC 9-105 brings a level of order and certainty to the process

§  In the near-term, expect that funders will treat electronic leases/contracts as electronic chattel paper (regardless of whether they actually are) to ensure accepted compliance

3. Understanding Electronic Chattel Paper: Legal Requirements

§  An added incentive for complying with the requirements of Article 9-105 – because it wants to create an additional comfort level for any subsequent buyer of those electronic leases

§  Why? Because any buyer of contracts (whether paper or electronic) wants to make sure that they are getting possession/control of the contracts and are buying enforceable contracts

§  If a seller can adequately demonstrate that it has the necessary control procedures in place, it will give the prospective buyer a much greater comfort level in contracts being purchased

§  Acceptance of eContracts ü  Customers ü  Funding Sources ü  Counsel/Underwriters ü  Rating Agencies

3. Understanding Electronic Chattel Paper: Legal Requirements

§  What is the role of Standard and Poor’s, Fitch’s and Moody’s in the secondary market for eContracts?

ü  What types of electronic transactions have been rated?

§  What differences, if any, are involved in rating a paperless transaction vs. paper?

ü  UCC 9-105 Control Opinions and System Descriptions ü  Electronic Collateral Control Agreements ü  Communicating with transaction participants ü  Counsel, underwriters, servicers, trustees, issuers, custodians

§  Start with the right tools and mindset for paperless transactions

4. eTransaction Management

4. eTransaction Management

§  Facilitate Post Closing Environment Including: ü  Transaction Management ü  Integrity checks ü  Audited control of access (who, when?) ü  Evidentiary package, Certified Print® ü  Content media format, Paper Out® and Paper In®

§  Establish Control ü  Transfer of Control (Ownership), securitization and

collateralization, release ü  Restricting important actions e.g., deleting or transferring

eContracts. §  Provide Insight/Transparency/Document Retention Policies §  Deliver Audit/Compliance

4. eTransaction Management: Pledging as Collateral

Customers Originators Funding Sources

Custodians

Orginator eOriginal

Vault

Collateral Control Agreement

eDeposit

4. eTransaction Management: Securitization

Customers Originators Funding Source

Selected pool

Funding Source eOriginal Vault

Or 3rd Party Custodian

Internal

OrginatoreOriginal

Vault

Selected pool

Warehouse SPV

Warehouse Bank Lender

Term securitization

SPV Trust Indenture

Trustee Or

3rd Party Custodian

Internal

eDeposit

5. Best Practices & Implementation Tips

§  Overcoming Tradition in an Industry Based on Tradition

§  Obtaining Internal Buy-in §  Obtaining External Buy-in from Vendors, End Users and

Syndication Sources

§  Focus on Business Efficiencies

§  Formulating the Appropriate Security Levels

§  Agreements to Contract Electronically

§  Important Role of Global Agreements

§  Acting Globally, but Thinking Locally

§  Getting the Various Business Units Up and Running

§  Special Concerns of Different Collateral Financiers

Summary

§  End to end digital transactions are becoming a standard for modern financial service institutions

§  The world is evolving to electronic chattel paper

§  Utilize industry resources as you modernize!

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Thank You

§  For more information: §  Call: +1-877-720-2040 or webinar@docusign.com §  Website: www.docusign.com §  Website: www.eoriginal.com

§  Thank you very much!

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