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  • Top 5 Things You Need to Know to Keep Your

    Electronic Documents Legal and Secure July 16, 2013

  • Presenters

    DOCUSIGN CONFIDENTIAL 2

    Miles Kelly Sr. Director, Industry

    Marketing DocuSign

    Steve Bisbee CEO

    eOriginal

    Margo Tank Partner

    BuckleySandler LLP

  • 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

    DOCUSIGN CONFIDENTIAL 3

  • 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

    DOCUSIGN CONFIDENTIAL 4

  • 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

    DOCUSIGN CONFIDENTIAL 6

  • 2. Require a Broad Set of Security Certifications

    DOCUSIGN CONFIDENTIAL

     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

    DOCUSIGN CONFIDENTIAL

    DocuSign Security Assurance Program

  • Security Assurance Program Benefits

    DOCUSIGN CONFIDENTIAL 9

    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

  • Stephen F. Bisbee President and CEO of eOriginal

    Margo Tank Partner, BuckleySandler LLP

  • 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

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

     Largely left to the marketplace to determine best practices

     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  Customers  Funding Sources  Counsel/Underwriters  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?  What types of electronic transactions have been rated?

     What differences, if any, are involved in rating a paperless transaction vs. paper?  UCC 9-105 Control Opinions and System Descriptions  Electronic Collateral Control Agreements  Communicating with transaction participants  Counsel, underwriters, servicers, trustees, issuers, custodians

     How counsel educates investors and