Presenters: Craig Owen White and Nikeshnan Pillay BUILDING LAW FIRM CAPACITY TO SERVICE COMMERCIAL LAW TRANSACTIONS: WHAT LAW SCHOOL DID NOT TEACH YOU Presented by LEAD in co-sponsorship with ISLP and with the assistance of the Black Corporate and Commercial Attorneys Network (BCCAN) Session: Commercial Transactions from the Perspective of the Business Lawyer Presenters: Craig Owen White and Nikeshnan Pillay Durban, October 27, 2014

Disclaimer Nothing contained in this presentation is to be considered as the rendering of legal advice for specific cases, and attendees are responsible for obtaining such advice from their own legal counsel. This presentation is for educational and informational purposes only. The views of the presenter should not be construed as the views of the International Senior Lawyers Project, the Law Society of South Africa, the Black Corporate and Commercial Attorneys Network or their respective law firms.

Business Law

Business of Law

Business is all about Risk Any factor, event, or occurrence that has the potential to interfere with the desired outcome.

Business Attorney’s Role Advocate Counselor Senior Business Advisor

Lawyer As Field General Take Charge Solid Game Strategy Assessment of Strengths and Weaknesses Client Counterparties and their Counsel

Thinking About Risk Identify Quantify (Monetize) Rationalize Responsibilities and Results Identify Quantify (Monetize) Rationalize Allocate Amongst Parties Shift Among Parties or Others Limit Caps Baskets Hedge Third Party Insurance Set Asides Ethics Transparency Cost of Commercial or Judicial Relief Time Frame to Achieve Relief Documentation Evidence of Agreement Legal Standards to Process and Support a Claim for Relief

Client’s Business and Strategic Goals Need Capital and Labor to Execute Business Transaction to achieve an objective MOM - My Own Money O.P.M. – Other People’s Money

Differing Perspectives Buyer Seller Wants Goods or Services Delivered at a specified time and place At an agreed upon price Goods or Services meet agreed specifications Wants collateral or security if something goes wrong Be paid the agreed-upon price Wants to receive the payment in the form, at the time and place agreed upon Wants to keep the money received

5 Questions Your Client is (or Should Be) Thinking What is the Upside of this Deal? How Much Money Will I make? Over What Period of Time? When Will I Get the First Payment? Will My Money Be Subject to Recall? If so, For How Long? If this deal is reported in the newspaper, how will I look?

5 Questions Your Client is (or Should Be) Thinking WHAT RISK WILL I ENCOUNTER What risk will I encounter ? Who are my counterparties? What other parties have an interest in my deal? Who must approve (or can stop or interfere with) my deal? How much time will it take to complete my deal? What are the factors in my control? What are the factors that other’s control? What factors are out of anyone’s control?

5 Questions Your Client is (or Should Be) Thinking How can I monitor my risks? Active Flow of Information Reasonable Allocation of Risk Among Counterparties Circuit Breakers to Contain Loss Caps and Baskets on Claims Time Limitations on Claims Third Party Coverage Conflict Resolutions Procedures Reliable Enforcement Procedures

5 Questions Your Client is (or Should Be) Thinking WHAT IS THE WORSE CASE SCENARIO ? Risk Concerns Monetary Loss Damage to Brand/Image Employee Safety Regulatory Standing Criminal Liability

5 Questions Your Client is (or Should Be) Thinking What is the cost of risk protection What Risks Can Be Hedged with Third Parties? What Risks Can Be Allocated to Counterparties?

Risk Gatekeepers Due Diligence Representations and Warranties Indemnification Covenants Affirmative Covenants Negative Covenants Collateral/Surety Goods Funds Insurance/Surety

Business Deal Norms and Etiquette Collaborate When Possible Assist Deal Parties When Practical Demonstrate and Expect Forthrightness and Honesty Meet Deadlines Confess Mistakes and Oversights Mark All Document Changes

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