Interim Order
- Date
- 2022-10-06
Summary
Exhibit B to Doc 83-2 in In re Kabbage, Inc. d/b/a KServicing, et al., Case No. 22-10951 (CTG), in the U.S. Bankruptcy Court for the District of Delaware, filed October 6, 2022: an Interim Order establishing notification procedures and approving restrictions on certain transfers of interests in the Debtors. Signed by Bankruptcy Judge Craig T. Goldblatt, the order grants the Debtors' October 3, 2022 motion on an interim basis under sections 105(a) and 362 of the Bankruptcy Code to protect Tax Attributes. It approves Procedures for trading in Common Stock, declares noncompliant transfers null and void ab initio, and sets a final hearing for November 7, 2022 with objections due October 31, 2022. The attached Procedures define a Substantial Stockholder as an owner of at least 4.75% of the Common Stock, and a form notice of the order closes the 26-page filing.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
Case 22-10951-CTG Doc 83-2 Filed 10/06/22 Page 1 of 26
EXHIBIT B
Interim Order
RLF1 28049870v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71 Filed
Filed 10/06/22
10/06/22 Page
Page 12 of
of 526
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------------ x
In re : Chapter 11
:
KABBAGE, INC. d/b/a KSERVICING, et al., : Case No. 22-10951 (CTG)
:
:
Debtors.1 : (Jointly Administered)
:
: Ref. Docket No. 6
------------------------------------------------------------ x
INTERIM ORDER ESTABLISHING
NOTIFICATION PROCEDURES AND APPROVING
RESTRICTIONS ON CERTAIN TRANSFERS OF INTERESTS IN THE DEBTORS
Upon the motion, dated October 3, 2022 (the “Motion”)2 of Kabbage, Inc. d/b/a
KServicing and its debtor affiliates, as debtors and debtors in possession in the above-captioned
Chapter 11 Cases (collectively, the “Debtors”), for entry of an order pursuant to sections 105(a)
and 362 of the Bankruptcy Code authorizing the Debtors to establish procedures to protect the Tax
Attributes, all as more fully set forth in the Motion; and this Court having jurisdiction to consider
the Motion and the relief requested therein pursuant to 28 U.S.C. §§ 157 and 1334 and the
Amended Standing Order of Reference from the United States District Court for the District of
Delaware, dated February 29, 2012; and consideration of the Motion and the requested relief being
a core proceeding pursuant to 28 U.S.C. § 157(b); and venue being proper before the Court
pursuant to 28 U.S.C. §§ 1408 and 1409; and due and proper notice of the Motion having been
1
The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
2
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Motion.
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71 Filed
Filed 10/06/22
10/06/22 Page
Page 23 of
of 526
provided; and such notice having been adequate and appropriate under the circumstances, and it
appearing that no other or further notice need be provided; and the Court having held a hearing to
consider the interim relief requested in the Motion (the “Hearing”); and upon the Motion, the First
Day Declaration, and the record of the Hearing; and the Court having determined that the legal
and factual bases set forth in the Motion establish just cause for the relief granted herein; and it
appearing that the relief requested in the Motion is necessary to avoid immediate and irreparable
harm to the Debtors and their estates, as contemplated by Bankruptcy Rule 6003; and upon all of
the proceedings had before the Court; and after due deliberation and sufficient cause appearing
therefor,
IT IS HEREBY ORDERED THAT:
1. The Motion is granted on an interim basis to the extent set forth herein.
2. The provisions of this Interim Order shall be effective as of the Petition
Date.
3. The Debtors’ Tax Attributes are property of the Debtors’ estates and are
protected by section 362(a) of the Bankruptcy Code.
4. The restrictions, notification requirements, and other procedures annexed
hereto as Exhibit 1 (the “Procedures”) are hereby approved and shall apply on or after the Petition
Date to all trading and transfers in the beneficial ownership of Common Stock (including directly
and indirectly, and including Options to acquire beneficial ownership of Common Stock), as
provided therein; provided, that, the Debtors may, in their sole discretion, waive in writing, any
and all restrictions, stays, and notification procedures set forth in the Procedures.
5. Until further order of this Court to the contrary, any acquisition, disposition,
or trading in the beneficial ownership of Common Stock (including directly and indirectly, and
2
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71 Filed
Filed 10/06/22
10/06/22 Page
Page 34 of
of 526
including Options to acquire beneficial ownership of Common Stock) on or after the Petition Date
in violation of the Stock Procedures shall be null and void ab initio pursuant to this Court’s
equitable powers under section 105(a) of the Bankruptcy Code and as an act in violation of the
automatic stay under section 362 of the Bankruptcy Code (other than, for the avoidance of doubt,
the Disregarded Transfer Notice).
6. Any person or Entity that acquires, disposes of, or trades in the beneficial
ownership of Common Stock (including directly and indirectly, and including Options to acquire
beneficial ownership of Common Stock) on or after the Petition Date in violation of this Interim
Order or the Procedures or that otherwise fails to comply with their requirements shall be subject
to such sanctions as this Court may consider appropriate pursuant to this Court’s equitable power
under section 105(a) of the Bankruptcy Code.
7. The notices substantially in the forms annexed hereto as Exhibit 2,
Exhibit 3, and Exhibit 4 are hereby approved.
8. Within five (5) business days of the entry of this Interim Order (or as soon
as practicable thereafter), the Debtors shall serve the notice of this Interim Order (the “Notice of
Interim Order”) substantially in the form annexed hereto as Exhibit 5, via first class mail and
email or fax (of applicable), to (i) all parties that were served with notice of the Motion; and (ii)
all registered holders of the Debtors’ debt and/or equity securities. In addition, as soon as
practicable after the entry of the Interim Order, the Debtors will publish the Notice of Interim
Order once in the national edition of The New York Times. In addition, the Debtors will post the
Procedures to the website established by Omni Agent Solutions, Inc. for these Chapter 11 Cases
(which website address shall be identified in the Notice of Interim Order), such notice being
reasonably calculated to provide notice to all parties that may be affected by the Procedures,
3
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71 Filed
Filed 10/06/22
10/06/22 Page
Page 45 of
of 526
whether known or unknown, and no further notice of the Procedures shall be necessary.
9. Nothing herein shall preclude any person or Entity desirous of acquiring or
transferring any beneficial ownership in Common Stock (including directly or indirectly, and
including Options to acquire beneficial ownership of Common Stock) from requesting relief from
this Interim Order from this Court, subject to the Debtors’ rights to oppose such relief.
10. The relief granted in this Interim Order is intended solely to permit the
Debtors to protect, preserve, and maximize the value of their Tax Attributes; accordingly, other
than to the extent that this Interim Order expressly conditions or restricts trading in the beneficial
ownership of Common Stock (including Options to acquire beneficial ownership of Common
Stock), nothing in this Interim Order or in the Motion shall, or shall be deemed to, prejudice,
impair, or otherwise alter or affect the rights of any holders of interests in the Debtors, including
in connection with the treatment of any such interests under the Debtors’ chapter 11 plan or any
applicable bankruptcy court order.
11. Notwithstanding entry of this Interim Order, nothing herein shall create, nor
is intended to create, any rights in favor of or enhance the status of any claim held by any party.
12. The requirements set forth in this Interim Order are in addition to the
requirements of applicable securities, corporate and other laws and do not excuse noncompliance
therewith.
13. Under the circumstances of these Chapter 11 Cases, notice of the Motion is
adequate under Bankruptcy Rule 6004(a).
14. The final hearing to consider the relief requested in the Motion shall be held
on November 7, 2022 at 1:00 p.m. (Prevailing Eastern Time), and any objections or responses to
the Motion shall be in writing, filed with the Court, and served on or prior to October 31, 2022 at
4
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71 Filed
Filed 10/06/22
10/06/22 Page
Page 56 of
of 526
4:00 p.m. (Prevailing Eastern Time).
15. The Debtors are authorized to take all action necessary or appropriate to
effectuate the relief granted in this Interim Order.
16. The Court shall retain jurisdiction to hear and determine all matters arising
from or related to the implementation, interpretation, and/or enforcement of this Interim Order.
Dated: October 6th, 2022 CRAIG T. GOLDBLATT
Wilmington, Delaware UNITED STATES BANKRUPTCY JUDGE
5
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-1 Filed
Filed10/06/22
10/06/22 Page
Page71of
of 6
26
Exhibit 1
Procedures
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-1 Filed
Filed10/06/22
10/06/22 Page
Page82of
of 6
26
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------------ x
In re : Chapter 11
:
KABBAGE, INC. d/b/a KSERVICING, et al., : Case No. 22-10951 (CTG)
:
:
Debtors.1 : (Jointly Administered)
------------------------------------------------------------ x
NOTICES, RESTRICTIONS, AND OTHER PROCEDURES
REGARDING OWNERSHIP AND TRANSFERS OF INTERESTS IN THE DEBTORS
TO ALL PERSONS OR ENTITIES THAT BENEFICIALLY OWN EQUITY INTERESTS
IN THE DEBTORS:
Pursuant to that certain Interim Order Establishing Notification Procedures and
Approving Restrictions on Certain Transfers of Interests in the Debtors (the “Interim Order”)
entered by the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy
Court”) on _________, 2022, Docket No. ____, the following restrictions, notification
requirements, and/or other procedures (collectively, the “Procedures”) apply to all trading and
transfers in the beneficial ownership of Common Stock (including directly and indirectly, and
Options to acquire beneficial ownership of Common Stock).2
A. Common Stock Restrictions
(1) Definitions. For purposes of these Procedures, the following terms have the following
meanings:
1
The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
2
Capitalized terms used, but not otherwise defined, herein shall have the same meanings ascribed to such terms in the
Interim Order.
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-1 Filed
Filed10/06/22
10/06/22 Page
Page93of
of 6
26
(a) “Common Stock” shall mean any common stock issued by Kabbage, Inc. d/b/a
KServicing. For the avoidance of doubt, by operation of the definition of Beneficial Ownership,
an owner of an Option to acquire Common Stock may be treated as the owner of such Common
Stock.
(b) “Option” shall mean any contingent purchase, warrant, convertible debt, put, stock
subject to risk of forfeiture, contract to acquire stock, or similar interest regardless of whether it is
contingent, subject to vesting or otherwise not currently exercisable.
(c) “Beneficial ownership” of Common Stock and Options to acquire Common Stock
shall be determined in accordance with section 382 of the title 26 of the United States Code
(the “Tax Code”), the regulations promulgated by the U.S. Department of the Treasury under the
Tax Code (the “Treasury Regulations”), rulings issued by the Internal Revenue Service
(the “IRS”), and the rules described herein, and thus shall include, without limitation, (i) direct
and indirect ownership, determined without regard to any rule that treats stock of an entity as to
which the constructive ownership rules apply as no longer owned by that entity (e.g., a holding
company would be considered to beneficially own all stock owned or acquired by its subsidiaries),
(ii) ownership by a holder’s family members, (iii) ownership by any group of persons acting
pursuant to a formal or informal understanding among themselves to make a coordinated
acquisition of stock, and (iv) to the extent set forth in Treasury Regulations section 1.382-4, the
ownership of an Option to acquire beneficial ownership of Common Stock.
(d) “Entity” shall mean any “entity” as such term is defined in Treasury Regulations
section 1.382-3(a), including a group of persons who have a formal or informal understanding
among themselves to make a coordinated acquisition of stock.
(e) “Substantial Stockholder” shall mean any Entity or person that beneficially owns
at least 1,848,3703 shares of Common Stock (representing approximately 4.75% of all issued and
outstanding shares of Common Stock as of the Petition Date).
(2) Notice of Substantial Ownership. Any person or Entity that beneficially owns, at any time
on or after the Petition Date, Common Stock in an amount sufficient to qualify such person
or Entity as a Substantial Stockholder shall file with this Court and serve via first class mail
and email or fax (if applicable) upon (i) the Debtors, 925B Peachtree Street NE, Suite 383,
Atlanta, GA 30309 (Attn: David Walker (dwalker@kservicecorp.com) and Holly Loiseau
(hloiseau@kservicecorp.com)); (ii) proposed attorneys for the Debtors, (x) Weil, Gotshal
& Manges LLP, 767 Fifth Avenue, New York, New York 10153 (Attn: Natasha S.
Hwangpo (natasha.hwangpo@weil.com) and Chase A.
Bentley (chase.bentley@weil.com)); and (y) Richards, Layton & Finger, P.A., One
Rodney Square, 920 North King Street, Wilmington, DE 19801 (Attn: Amanda R. Steele
(steele@rlf.com) and Zachary I. Shapiro (shapiro@rlf.com)); and (iii) attorneys for any
statutory committee of unsecured creditors appointed in this case (collectively,
the “Disclosure Parties”) a notice of such person’s or Entity’s substantial ownership
(a “Substantial Stock Ownership Notice”), in substantially the form annexed to the
Proposed Orders as Exhibit 2, which describes specifically and in detail such person’s or
3
As of the Petition Date, there were 38,913,048 shares of common stock outstanding.
2
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-1 Filed
Filed10/06/22
10/06/22 Page
Page10
4 of 6
26
Entity’s beneficial ownership of Common Stock, on or before the date that is the later of
(x) twenty (20) calendar days after the entry of the order granting the requested relief or
(y) ten (10) business days after such person or Entity qualifies as a Substantial Stockholder.
At the election of the Substantial Stockholder, the Substantial Stock Ownership Notice to
be filed with this Court (but not the Substantial Stock Ownership Notice that is served upon
the Disclosure Parties) may be redacted to exclude all but the last four (4) digits of the
Substantial Stockholder’s taxpayer identification number and any person or Entity (other
than the Debtors) required to file a Substantial Stock Ownership Notice(s), pursuant to
these Procedures, may, but is not required to, exclude the amount of Common Stock that
the Substantial Stockholder beneficially owns.
(3) Acquisition of Common Stock. At least twenty (20) business days prior to the proposed
date of any transfer in the beneficial ownership of Common Stock (including directly or
indirectly, and including the grant or other acquisition of Options to acquire beneficial
ownership of Common Stock) or exercise of any Option to acquire beneficial ownership
of Common Stock that would result in an increase in the amount of Common Stock
beneficially owned by any person or Entity that currently is or, as a result of the proposed
transaction, would be a Substantial Stockholder (a “Proposed Acquisition Transaction”),
such acquiring or increasing person or Entity or Substantial Stockholder (a “Proposed
Transferee”) shall file with this Court and serve via first class mail and email or fax (if
applicable) upon the Disclosure Parties a notice of such Proposed Transferee’s intent to
purchase, acquire, or otherwise accumulate Common Stock (an “Acquisition Notice”), in
substantially the form annexed to the Proposed Orders as Exhibit 3, which describes
specifically and in detail the Proposed Acquisition Transaction. At the election of the
Proposed Transferee, the Acquisition Notice to be filed with this Court (but not the
Acquisition Notice that is served upon the Disclosure Parties) may be redacted to exclude
all but the last four (4) digits of the Proposed Transferee’s taxpayer identification number
and any person or Entity (other than the Debtors) required to file an Acquisition Notice(s),
pursuant to these Procedures, may, but is not required to, exclude the amount of Common
Stock that the Proposed Transferee beneficially owns or that such person or Entity plans to
acquire or purchase.
(4) Disposition of Common Stock. At least twenty (20) business days prior to the proposed
date of any transfer or other disposition in the beneficial ownership of Common Stock
(including directly and indirectly, and Options to acquire beneficial ownership of Common
Stock) that would result in either a decrease in the amount of Common Stock beneficially
owned by a Substantial Stockholder or a person or Entity ceasing to be a Substantial
Stockholder (a “Proposed Disposition Transaction” and, together with a Proposed
Acquisition Transaction, a “Proposed Transaction”), such selling or decreasing person or
Entity or Substantial Stockholder (a “Proposed Transferor”) shall file with this Court and
serve via first class mail and email or fax (if applicable) upon the Disclosure Parties a notice
of such Proposed Transferor’s intent to sell, trade, or otherwise transfer its beneficial
ownership of Common Stock (a “Disposition Notice” and, together with an Acquisition
Notice, a “Trading Notice”), in substantially the form annexed to the Proposed Orders as
Exhibit 4, which describes specifically and in detail the Proposed Disposition Transaction.
At the election of the Proposed Transferor, the Disposition Notice to be filed with this
Court (but not the Disposition Notice that is served upon the Disclosure Parties) may be
3
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-1 Filed
Filed10/06/22
10/06/22 Page
Page11
5 of 6
26
redacted to exclude all but the last four (4) digits of the Proposed Transferor’s taxpayer
identification number and any person or Entity (other than the Debtors) required to file a
Disposition Notice(s), pursuant to these Procedures, may, but is not required to, exclude
the amount of Common Stock that the Proposed Transferor beneficially owns or that such
person or Entity plans to dispose of or transfer.
(5) Certain Pre-Approval Exceptions. For the avoidance of doubt, a pre-transfer Trading
Notice is not required to be filed in connection with a transfer of beneficial ownership of
Common Stock (i) from a person to an entity that is disregarded for U.S. federal income
tax purposes as being separate from the person (a “Disregarded Entity”), or from such
Disregarded Entity to such person; (ii) from a person to a trust whose assets are treated as
being solely owned by such person for U.S. federal income tax purposes (a “Grantor
Trust”), or from such Grantor Trust to such person; (iii) from a Disregarded Entity to any
one or more other Disregarded Entities or Grantor Trusts if the same person is treated as
the owner or taxpayer with respect to all of the assets of such Disregarded Entities or
Grantor Trusts for U.S. federal income tax purposes; and (iv) from a Grantor Trust to any
one or more other Grantor Trusts or Disregarded Entities if the same person is treated as
the owner or taxpayer with respect to all of the assets of such Grantor Trusts and
Disregarded Entities for U.S. federal income tax purposes. However, in the event of any
such transfer for which a Trading Notice would otherwise have been required if the
Disregarded Entities or Grantor Trusts involved had not been so disregarded for U.S.
federal income tax purposes, that transferor or transferee shall no more than twenty (20)
business days after the date of transfer serve via first class mail and email or fax (if
applicable) upon the Disclosure Parties a notice substantially similar to the equivalent
Trading Notice (a “Disregarded Transfer Notice”); however, absent gross negligence or
reckless or intentional disregard, the failure to timely file such notice shall not be subject
to sanctions.
(6) Objection Procedures. The Debtors shall have ten (10) business days after the filing of a
Trading Notice (the “Objection Period”) to file with this Court and serve on a Proposed
Transferee or a Proposed Transferor, as the case may be, an objection
(each, an “Objection”) to any Proposed Transaction described in such Trading Notice. If
the Debtors file an Objection by the expiration of the Objection Period (the “Objection
Deadline”), then the applicable Proposed Transaction shall not be effective unless
approved by a final and nonappealable order of this Court. If the Debtors do not file an
Objection by the Objection Deadline or if the Debtors provide written authorization to the
Proposed Transferee or the Proposed Transferor, as the case may be, approving the
Proposed Transaction prior to the Objection Deadline, then such Proposed Transaction may
proceed solely as specifically described in the applicable Trading Notice. Any further
Proposed Transaction must be the subject of an additional Trading Notice and Objection
Period.
B. Noncompliance with the Procedures
Any acquisition, disposition, or trading in the beneficial ownership of Common Stock (including
directly and indirectly, and Options to acquire beneficial ownership of Common Stock) in violation
of these Procedures (other than, for the avoidance of doubt, the Disregarded Transfer Notice) shall
4
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-1 Filed
Filed10/06/22
10/06/22 Page
Page12
6 of 6
26
be null and void ab initio pursuant to the Bankruptcy Court’s equitable powers under section
105(a) of the Bankruptcy Code and as an act in violation of the automatic stay under section 362
of the Bankruptcy Code. Furthermore, any person or Entity that acquires, disposes of, or trades in
the beneficial ownership of Common Stock (including directly and indirectly, and Options to
acquire beneficial ownership of Common Stock) in violation of the Stock Procedures shall be
subject to sanctions as provided by law.
C. Debtors’ Right to Waive
The Debtors may, in their sole discretion, waive, in writing, any and all restrictions, stays,
and notification Procedures contained in this Notice.
Dated: Wilmington, Delaware BY ORDER OF THE COURT
_____________, 2022
5
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-2 Filed
Filed10/06/22
10/06/22 Page
Page13
1 of 3
26
Exhibit 2
Notice of Substantial Stock Ownership
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-2 Filed
Filed10/06/22
10/06/22 Page
Page14
2 of 3
26
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------------ x
In re : Chapter 11
:
KABBAGE, INC. d/b/a KSERVICING, et al., : Case No. 22-10951 (CTG)
:
:
Debtors.1 : (Jointly Administered)
------------------------------------------------------------ x
NOTICE OF SUBSTANTIAL STOCK OWNERSHIP
PLEASE TAKE NOTICE that, pursuant to that certain Interim Order
Establishing Notification Procedures and Approving Restrictions on Certain Transfers of Interests
in the Debtors of the United States Bankruptcy Court for the District of Delaware, dated
[________], 2022, Docket No. [__] (with all exhibits thereto, the “Interim Order”), [Name of
Filer] (the “Filer”) hereby provides notice that, as of the date hereof, the Filer beneficially owns
(including directly and indirectly):
(i) __________ shares of Common Stock,2 and/or
(ii) Options to acquire (directly or indirectly) __________ shares of Common
Stock.
PLEASE TAKE FURTHER NOTICE that the taxpayer identification
number of the Filer is ______________.
PLEASE TAKE FURTHER NOTICE that the following table sets forth
the following information:
For Common Stock and/or Options to acquire beneficial ownership of Common
Stock that are owned directly by the Filer, the table sets forth (a) the number of shares of Common
Stock and/or the number of shares underlying Options beneficially owned by such Filer and (b)
the date(s) on which such shares and/or Options were acquired (categorized by class, as
applicable).
1
The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
2
Capitalized terms used, but not defined, herein, and the term “beneficial ownership” (and derivatives thereof), shall
have the meanings ascribed to them in Exhibit 1 to the Interim Order.
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-2 Filed
Filed10/06/22
10/06/22 Page
Page15
3 of 3
26
In the case of Common Stock and/or Options to acquire beneficial ownership of
Common Stock that are not owned directly by the Filer but are nonetheless beneficially owned by
the Filer, the table sets forth (a) the name(s) of each record or legal owner of such shares of
Common Stock and/or Options to acquire shares of Common Stock that are beneficially owned by
the Filer, (b) the number of shares of Common Stock and/or the number of shares of Common
Stock underlying Options beneficially owned by such Filer, and (c) the date(s) on which such
Common Stock and/or Options were acquired (categorized by class, as applicable).
Class Name of Shares Shares Date(s) Acquired
Owner Beneficially Underlying
Owned Options
Beneficially
Owned
Common Stock
(Attach additional pages if necessary.)
[[IF APPLICABLE:] The Filer is represented by [name of law firm], [address],
[phone], (Attn: [name of attorney]).]
Respectfully submitted,
[Name of Filer]
By:
Name:
Address:
Telephone:
Facsimile:
Date: _________________________
2
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-3 Filed
Filed10/06/22
10/06/22 Page
Page16
1 of 4
26
Exhibit 3
Notice of Intent to Purchase, Acquire, or Otherwise Accumulate Common Stock
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-3 Filed
Filed10/06/22
10/06/22 Page
Page17
2 of 4
26
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------------ x
In re : Chapter 11
:
KABBAGE, INC. d/b/a KSERVICING, et al., : Case No. 22-10951 (CTG)
:
:
Debtors.1 : (Jointly Administered)
------------------------------------------------------------ x
NOTICE OF INTENT TO PURCHASE,
ACQUIRE, OR OTHERWISE ACCUMULATE COMMON STOCK
PLEASE TAKE NOTICE that, pursuant to that certain Interim Order
Establishing Notification Procedures and Approving Restrictions on Certain Transfers of Interests
in the Debtors of the United States Bankruptcy Court for the District of Delaware, dated
[________], 2022, Docket No. [__] (with all exhibits thereto, the “Interim Order”), [Name of
Filer] (the “Filer”) hereby provides notice of (i) its intention to purchase, acquire, or otherwise
accumulate beneficial ownership (including directly and indirectly) of one or more shares of
Common Stock2 and/or Options to acquire beneficial ownership of Common Stock and/or (ii) a
proposed purchase or acquisition in the beneficial ownership of Common Stock and/or Options to
acquire beneficial ownership of Common Stock that would result in an increase in the number of
shares of Common Stock and/or the number of shares of Common Stock underlying Options that
are beneficially owned by the Filer (any proposed transaction described in clauses (i) or (ii), a
“Proposed Transfer”).
PLEASE TAKE FURTHER NOTICE that the following table sets forth
the following information:
1. If the Proposed Transfer involves the purchase or acquisition by the Filer of
beneficial ownership of Common Stock and/or Options to acquire beneficial ownership of
Common Stock, the table sets forth (a) the number of shares of Common Stock and/or the number
of shares of Common Stock underlying Options proposed to be purchased or acquired and (b) the
date(s) of such Proposed Transfer (categorized by class, as applicable).
2. If the Proposed Transfer involves the purchase or acquisition in the beneficial
ownership of Common Stock and/or Options to acquire beneficial ownership of Common Stock
1
The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
2
Capitalized terms used, but not defined, herein, and the term “beneficial ownership” (and derivatives thereof), shall
have the meanings ascribed to them in Exhibit 1 to the Interim Order.
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-3 Filed
Filed10/06/22
10/06/22 Page
Page18
3 of 4
26
by a person or Entity other than the Filer, but the Proposed Transfer nonetheless would increase
the number of shares of Common Stock and/or the number of shares of Common Stock underlying
Options that are beneficially owned by the Filer, the table sets forth (a) the name(s) of each such
person or Entity that proposes to purchase or acquire such shares of Common Stock and/or
Options, (b) the number of shares of Common Stock and/or the number of shares of Common
Stock underlying Options proposed to be purchased or acquired (directly or indirectly), and (c) the
date(s) of such Proposed Transfer (categorized by class, as applicable).
Class Name of Shares to be Shares Underlying Date(s) of
Purchaser Purchased or Options to be Proposed
or Acquired (Directly Purchased or Acquired Transfer
Acquirer or Indirectly) (Directly or Indirectly)
Common Stock
(Attach additional page if necessary.)
PLEASE TAKE FURTHER NOTICE that the following table
summarizes the Filer’s beneficial ownership of Common Stock and/or Options to acquire
beneficial ownership of Common Stock assuming that the Proposed Transfer is approved and
consummated as described above. The table sets forth, as of immediately following the
consummation of the Proposed Transfer, the number of shares of Common Stock and/or the
number of shares of Common Stock underlying Options (a) that would be owned directly by the
Filer and, (b) in the case of any beneficial ownership by the Filer of Common Stock and/or Options
that would be owned by another person or Entity as record or legal owner, the name(s) of each
prospective record or legal owner and the number of shares of Common Stock and/or the number
of shares of Common Stock underlying Options that would be owned by each such record or legal
owner (categorized by class, as applicable):
Class Name of Shares to Be Owned Shares Underlying
Owner Options to Be Owned
Common Stock
(Attach additional page if necessary.)
PLEASE TAKE FURTHER NOTICE that if the Proposed Transfer
involves a purchase or acquisition of beneficial ownership of Common Stock and/or Options to
acquire beneficial ownership of Common Stock by the Filer and such Proposed Transfer would
result in (a) an increase in the beneficial ownership of Common Stock and/or Options to acquire
beneficial ownership of Common Stock by a person or Entity (other than the Filer) that currently
is a Substantial Stockholder or (b) a person or Entity (other than the Filer) becoming a Substantial
Stockholder, the following table sets forth (i) the name of each such person or Entity, (ii) the
number of shares of Common Stock and/or the number of shares of Common Stock underlying
Options that are beneficially owned by such person or Entity currently (i.e., prior to the Proposed
Transfer), and (iii) the number of shares of Common Stock and/or the number of shares of
Common Stock underlying Options that would be beneficially owned by such person or Entity
immediately following the Proposed Transfer (categorized by class, as applicable).
2
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-3 Filed
Filed10/06/22
10/06/22 Page
Page19
4 of 4
26
Class Name of Shares Owned Shares Shares Shares
Beneficial Currently to Be Owned Underlying Underlying
Owner (Directly or Following Options Options to Be
Indirectly)) Proposed Owned Owned
Transfer Currently Following
(Directly or (Directly or Proposed
Indirectly) Indirectly) Transfer
(Directly or
Indirectly)
Common
Stock
(Attach additional page if necessary.)
PLEASE TAKE FURTHER NOTICE that the taxpayer identification
number of the Filer is ______________.
PLEASE TAKE FURTHER NOTICE that, under penalty of perjury, the
Filer hereby declares that it has examined this Notice and the accompanying attachments (if any),
and, to the best of its knowledge and belief, this Notice and any attachments which purport to be
part of this Notice are true, correct, and complete.
[[IF APPLICABLE:] The Filer is represented by [name of law firm], [address],
[phone], (Attn: [name of attorney]).]
Respectfully submitted,
[Name of Filer]
By:
Name:
Address:
Telephone:
Facsimile:
Date: _____________________
3
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-4 Filed
Filed10/06/22
10/06/22 Page
Page20
1 of 4
26
Exhibit 4
Notice of Intent to Sell, Trade, or Otherwise Transfer Common Stock
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-4 Filed
Filed10/06/22
10/06/22 Page
Page21
2 of 4
26
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------------ x
In re : Chapter 11
:
KABBAGE, INC. d/b/a KSERVICING, et al., : Case No. 22-10951 (CTG)
:
:
Debtors.1 : (Jointly Administered)
------------------------------------------------------------ x
NOTICE OF INTENT TO SELL, TRADE,
OR OTHERWISE TRANSFER COMMON STOCK
PLEASE TAKE NOTICE that, pursuant to that certain Interim Order
Establishing Notification Procedures and Approving Restrictions on Certain Transfers of Interests
in the Debtors of the United States Bankruptcy Court for the District of Delaware, dated
[________], 2022, Docket No. [__] (with all exhibits thereto, the “Interim Order”), [Name of
Filer] (the “Filer”) hereby provides notice of (i) its intention to sell, trade, or otherwise transfer or
dispose of beneficial ownership (including directly and indirectly) of one or more shares of
Common Stock2 and/or Options to acquire beneficial ownership of Common Stock and/or (ii) a
proposed sale, transfer, or disposition in the beneficial ownership of Common Stock and/or
Options to acquire beneficial ownership of Common Stock that would result in a decrease in the
number of shares of Common Stock and/or the number of shares of Common Stock underlying
Options to acquire Common Stock that are beneficially owned by the Filer (any proposed
transaction described in clauses (i) or (ii), a “Proposed Transfer”).
PLEASE TAKE FURTHER NOTICE that the following table sets forth
the following information:
1. If the Proposed Transfer involves the sale, transfer, or disposition by the Filer
of beneficial ownership of Common Stock and/or Options to acquire beneficial ownership of
Common Stock, the table sets forth (a) the number of shares of Common Stock and/or the number
of shares of Common Stock underlying Options proposed to be sold, transferred, or disposed of
and (b) the date(s) of such Proposed Transfer (categorized by class, as applicable).
2. If the Proposed Transfer involves the sale, transfer or disposition in the
beneficial ownership of Common Stock and/or Options to acquire beneficial ownership of
1
The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
2
Capitalized terms used, but not defined, herein, and the term “beneficial ownership” (and derivatives thereof), shall
have the meanings ascribed to them in Exhibit 1 to the Interim Order.
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-4 Filed
Filed10/06/22
10/06/22 Page
Page22
3 of 4
26
Common Stock by a person or Entity other than the Filer, but the Proposed Transfer nonetheless
would decrease the number of shares of Common Stock and/or the number of shares of Common
Stock underlying Options that are beneficially owned by the Filer, the table sets forth (a) the
name(s) of each such person or Entity that proposes to sell, transfer, or dispose of such Common
Stock and/or Options; (b) the number of shares of Common Stock and/or the number of shares of
Common Stock underlying Options proposed to be so sold, transferred, or disposed of (directly or
indirectly); and (c) the date(s) of such Proposed Transfer (categorized by class, as applicable).
Class Name of Shares to Be Sold, Shares Underlying Date(s) of
Transferor Transferred, or Options to Be Sold, Proposed
Disposed Of (Directly Transferred, or Transfer
or Indirectly) Disposed Of (Directly
or Indirectly)
Common
Stock
(Attach additional page if necessary.)
PLEASE TAKE FURTHER NOTICE that the following table
summarizes the Filer’s beneficial ownership of Common Stock and/or Options to acquire
beneficial ownership of Common Stock assuming that the Proposed Transfer is approved and
consummated as described above. The table sets forth, as of immediately following the
consummation of the Proposed Transfer, the number of shares of Common Stock and/or the
number of shares of Common Stock underlying Options (a) that would be owned directly by the
Filer and, (b) in the case of any beneficial ownership by the Filer of Common Stock and/or Options
that would be owned by another person or Entity as record or legal owner, the name(s) of each
prospective record or legal owner and the number of shares of Common Stock and/or the number
of shares of Common Stock underlying Options that would be owned by each such record or legal
owner (categorized by class, as applicable):
Class Name of Shares to Be Owned Shares Underlying Options
Owner to Be Owned
Common Stock
(Attach additional page if necessary.)
PLEASE TAKE FURTHER NOTICE that if the Proposed Transfer
involves a sale, transfer, or disposition of beneficial ownership of Common Stock and/or Options
to acquire beneficial ownership of Common Stock by the Filer and such Proposed Transfer would
result in (a) a decrease in the beneficial ownership of Common Stock and/or Options to acquire
beneficial ownership of Common Stock by a person or Entity (other than the Filer) that currently
is a Substantial Stockholder or (b) a person or Entity (other than the Filer) becoming a Substantial
Stockholder, the following table sets forth (i) the name of each such person or Entity, (ii) the
number of shares of Common Stock and/or the number of shares of Common Stock underlying
Options that are beneficially owned by such person or Entity currently (i.e., prior to the Proposed
Transfer), and (iii) the number of shares of Common Stock and/or the number of shares of
2
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-4 Filed
Filed10/06/22
10/06/22 Page
Page23
4 of 4
26
Common Stock underlying Options that would be beneficially owned by such person or Entity
immediately following the Proposed Transfer (categorized by class, as applicable).
Class Name of Shares Shares to Be Shares Shares
Beneficial Owned Owned Underlying Underlying
Owner Currently Following Options Owned Options to Be
(Directly or Proposed Currently Owned
Indirectly) Transfer (Directly or Following
(Directly or Indirectly) Proposed
Indirectly) Transfer
(Directly or
Indirectly)
Common
Stock
(Attach additional page if necessary.)
PLEASE TAKE FURTHER NOTICE that the taxpayer identification
number of the Filer is ______________.
PLEASE TAKE FURTHER NOTICE that, under penalty of perjury, the
Filer hereby declares that it has examined this Notice and the accompanying attachments (if any),
and, to the best of its knowledge and belief, this Notice and any attachments which purport to be
part of this Notice are true, correct, and complete.
[[IF APPLICABLE:] The Filer is represented by [name of law firm], [address],
[phone], (Attn: [name of attorney]).]
Respectfully submitted,
[Name of Filer]
By:
Name:
Address:
Telephone:
Facsimile:
Date: _____________________
3
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-5 Filed
Filed10/06/22
10/06/22 Page
Page24
1 of 3
26
Exhibit 5
Notice of Interim Order
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-5 Filed
Filed10/06/22
10/06/22 Page
Page25
2 of 3
26
ATTENTION DIRECT AND INDIRECT HOLDERS OF, AND PROSPECTIVE
HOLDERS OF STOCK ISSUED BY KABBAGE, INC. D/B/A KSERVICING:
Upon the motion (the “Motion”) of Kabbage, Inc. d/b/a KServicing and its debtor affiliates, as
debtors and debtors in possession in the above-captioned Chapter 11 Cases (collectively,
the “Debtors”), on October 3, 2022, the United States Bankruptcy Court for the District of
Delaware (the “Bankruptcy Court”), having jurisdiction over the chapter 11 cases of the Debtors,
captioned as In re Kabbage, Inc. d/b/a KServicing, et al., No. 22-10951 (CTG) (the “Chapter 11
Cases”), entered an interim order establishing procedures with respect to transfers in the beneficial
ownership (including directly or indirectly) of common stock of the Debtors (“Common Stock”)
and options to acquire beneficial ownership of Common Stock, and scheduling a hearing on a final
order with respect to such procedures.
In certain circumstances, the procedures restrict transactions involving, and require notices of the
holdings of and proposed transactions by, any person, group of persons, or entity that either (i) is
a Substantial Stockholder of the Common Stock or (ii) as a result of such a transaction, would
become a Substantial Stockholder of the Common Stock. For purposes of the procedures, a
“Substantial Stockholder” is any person or entity (within the meaning of applicable regulations
promulgated by the U.S. Department of the Treasury, including certain persons making a
coordinated acquisition of stock) that beneficially owns (including options to acquire and direct or
indirect ownership) at least 1,848,3701 shares of Common Stock (representing approximately
4.75% of all issued and outstanding shares of Common Stock as of the Petition Date). Any
prohibited acquisition or other transfer of Common Stock (including options to acquire
beneficial ownership of Common Stock) will be null and void ab initio and may lead to contempt,
compensatory damages, punitive damages, or sanctions being imposed by the Bankruptcy Court.
The procedures, as approved on an interim basis and as requested on a final basis, are available
on the website of Omni Agent Solutions, Inc., the Debtors’ Court-approved claims agent, located
at https://omniagentsolutions.com/kservicing, and on the docket of the Chapter 11 Cases,
Docket No. _____, which can be accessed via PACER at https://pacer.gov.
A direct or indirect holder of, or prospective holder of, Common Stock that may be or
become a Substantial Stockholder should consult the procedures.
PLEASE TAKE NOTICE that the final hearing on the Motion shall be held on
November 7, 2022, at 1:00 p.m. (Prevailing Eastern Time), and any objections or responses to
the Motion shall be in writing, filed with the Court (with a copy delivered to Chambers), and served
upon (i) (x) Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153 (Attn:
Natasha S. Hwangpo and Chase A. Bentley); and (ii) Richards, Layton & Finger, P.A., One
Rodney Square, 920 North King Street, Wilmington, DE 19801 (Attn: Amanda R. Steele
and Zachary I. Shapiro); (b) the Office of the United States Trustee for the District of Delaware,
844 N. King Street, Wilmington, Delaware 19801 (Attn: Richard L. Schepacarter and Rosa Sierra-
Fox); in each case so as to be received no later than 4:00 p.m. (Prevailing Eastern Time) on
October 31, 2022.
1
As of the Petition Date, there were 38,913,048 shares of common stock outstanding.
RLF1 28023190v.1
Case
Case22-10951-CTG
22-10951-CTG Doc
Doc83-2
71-5 Filed
Filed10/06/22
10/06/22 Page
Page26
3 of 3
26
PLEASE TAKE FURTHER NOTICE that the requirements set forth in the procedures
are in addition to the requirements of and applicable securities, corporate, and other laws and do
not excuse non-compliance therewith.
Dated: Wilmington, Delaware BY ORDER OF THE COURT
____________, 2022
2
RLF1 28023190v.1
File and source
- File
- gov.uscourts.deb.188293.83.2.pdf
- Size
- 627,092 bytes
- SHA-256
- 3ae17a5f47876c317971a94aed79c8283ac104f821a98ac1b38ecb9fa916c25c
- Our copy
- gov.uscourts.deb.188293.83.2.pdf
- Original
- archive.org