certain Agreement and Plan of Merger amo ng American Express Tr avel Related Services
- Date
- 2023-03-13
Summary
Exhibit B, Document Requests, filed March 13, 2023 as Doc 658-1 in the jointly administered Chapter 11 cases of Kabbage, Inc. d/b/a KServicing, Case No. 22-10951 (Bankr. D. Del. 2022). The requests are directed to FT Partners and define the AmEx Transaction, or Project Green, as the Agreement and Plan of Merger among American Express Travel Related Services Company, Inc. and the Debtors, among others, dated August 16, 2020. They set out definitions and production instructions, including privilege log and electronic format requirements. The nine requests cover the period from April 8, 2020 through October 16, 2020 and seek FT Partners' discussion materials, communications, work papers, engagement letters, data room contents and documents provided to American Express in connection with the transaction. The exhibit is 8 pages.
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Case 22-10951-CTG Doc 658-1 Filed 03/13/23 Page 1 of 8
Exhibit B
Document Requests
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DEFINITIONS
For purposes of these Document Requests, the following Definitions shall apply:
1. “AmEx Transaction” or “Transaction” or “Project Green” means that
certain Agreement and Plan of Merger among American Express Travel Related Services
Company, Inc. and the Debtors, among others, dated August 16, 2020 (which agreement became
effective on October 16, 2020).
2. “Chapter 11 Cases” refers to the cases filed by the Debtors under chapter
11 of the Bankruptcy Code, which are jointly administered under Case No. 22-10951 (Bankr. D.
Del. 2022).
3. “Communications” means the transmittal of information (in the form of
facts, ideas, inquiries, or otherwise) and includes all oral and written communications of any
nature, type or kind including, but not limited to, any ESI (and any attachments thereto),
Documents, telephone conversations, discussions, meetings, e-mails, text messages, Zoom chats,
Microsoft Team chats, facsimiles, pagers, memoranda, and any other medium through which any
information is conveyed or transmitted.
4. “Concerning” means and includes relating to, constituting, defining,
evidencing, mentioning, containing, describing, discussing, embodying, reflecting, edifying,
analyzing, stating, referring to, dealing with, or in any way pertaining to the subject matter.
5. “Debtors” or “KServicing” or the “Company” means Kabbage, Inc. d/b/a
KServicing and its debtor affiliates, as debtors and debtors in possession in these Chapter 11 Cases
and all of their affiliates, subsidiaries, predecessors and successors thereof, owners, members,
directors, officers, employees, consultants, brokers, agents, salespersons, representatives,
independent contractors, advisors and attorneys therefor, and/or any other persons or entities
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purporting to act on their behalf and/or under their control.
6. “Document” or “Documents” as used herein is used in the broadest possible
sense, including but not limited to, all written, recorded, transcribed or graphic matter of every
nature, type and kind, however and by whoever produced, reproduced, disseminated or made. This
includes, but is not limited to, Communications, ESI, “writings” as defined by Rule 1001 of the
Federal Rules of Evidence, copies or drafts, and any tangible or intangible thing or item that
contains any information, including but not limited to, namely: notes, letters, correspondence,
memoranda, summaries or records of telephone conversations, summaries and reports and
notebooks, charts, lists, schedules, spreadsheets, and workbooks. Any Document that contains
any comment, notation, addition, insertion or marking of any type or kind which is not part of
another Document, is to be considered a separate Document. “Documents” always includes
Communications, whether so stated or not.
7. “ESI” has the meaning ascribed to it in Federal Rules of Civil Procedure 16,
26 and 34(a).
8. “FT Partners” means Financial Technology Partners L.P. and/or FTP
Securities LLC, and all of its affiliates, subsidiaries, predecessors and successors thereof, owners,
members, directors, officers, employees, consultants, brokers, agents, salespersons,
representatives, independent contractors, advisors and attorneys therefor, and/or any other persons
or entities purporting to act on its behalf and/or under its control.
9. “Person” and its plural means and includes individuals as well as entities,
corporations, partnerships, unincorporated associations, limited liability companies, trusts, firms,
cooperatives, fictitious business names and government agencies, and their respective agents,
representatives, attorneys and employees.
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10. “Regarding” means anything directly or indirectly pertaining to,
concerning, alluding to, responding to, connected with, commenting on, in respect of, about,
discussing, showing, describing, mentioning, analyzing, studying, reflecting, evidencing,
containing or constituting, in whole or in part.
11. “Relate(s) to” or “Relating to” means information that, in whole or in part,
constitutes, contains, embodies, evidences, reflects, concerns, describes, discusses, involves,
identifies, supports, refutes, refers to, is relevant to, or in any way pertains to.
12. “You” or “Your” means FT Partners.
INSTRUCTIONS
The preceding Definitions apply to each of these Instructions and for the purposes
of these Document Requests; the following Instructions shall be followed:
1. Unless otherwise indicated, the Documents requested include all
Documents that have come into existence or been utilized, read, transcribed, copied, placed in or
retrieved from any file.
2. For each Document withheld by reason of a claim of privilege, provide a
privilege log identifying each such Document separately together with: (a) the date of the
Document; (b) the identity of the author or preparer; (c) the identity of each person who was sent
or furnished with the Document or who received or had possession or custody of the Document;
(d) a description of the Document, including identification of any attachments or appendices; (e)
a statement of the basis of the claim of privilege; and (f) the paragraph of this Request to which
the Document is responsive. In the case of Documents Concerning a meeting or conversation,
identify all participants in the meeting or conversation.
3. Each Document shall be produced in a fashion that indicates clearly the file
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in which it was located.
4. For each category of Documents relating to each individual Request set
forth below, identify the produced documents responsive to each Request (by Bates Number
references if the documents are produced with Bates Numbers), or produce such documents in a
manner that categorizes or labels the produced Documents related to each individual Request.
5. If a Document cannot be produced in full, produce it to the extent possible,
identify the portion that cannot be produced, and specify the reasons for your inability to produce
the remainder.
6. You are required to produce ESI (as defined below) in searchable form on
DVDs, CD-ROMs, or other media to be mutually agreed by the parties.
7. For Documents produced electronically, and/or if any ESI is produced, the
following formatting should be used:
Use .tiff format for all Documents that were not originally in Excel format, in
which case, use .xls or .xlsx format;
If possible, without creating undue delay, please produce Documents in
Summation-ready DVDs, CD-ROMs or other media to be mutually agreed by
the parties with .tiff and text format, and with a Summation load file; and
Transmit electronic Documents or ESI on DVDs, CD-ROMs or other media to
be mutually agreed by the parties or use an ftp site upload.
8. These Requests shall be deemed continuing and supplemental answers shall
be required if You directly or indirectly obtain further information after Your initial response as
required by Fed. R. Bank. P. Rule 7026(e).
9. The use of either the singular or plural shall not be deemed a limitation. The
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use of the singular includes the plural, and vice versa.
10. The words “and” and “or” are interchangeable and shall be construed either
disjunctively or conjunctively or both, as broadly as necessary to bring within the scope of each
Request those responses that might otherwise be construed to be outside the scope.
11. The words “any” and “all” shall each be construed to mean “any and all.”
12. The word “each” includes the word “every,” and “every” includes the word
“each.”
13. The word “including” is deemed to be followed by “but not limited to.”
DOCUMENT REQUESTS
Unless otherwise specified herein, the timeframe for these requests is from April 8,
2020 through October 16, 2020:
Request No. 1:
All drafts and the final version(s) of any discussion materials prepared for, presented to or
distributed to the Company and/or its Board or management, including but not limited to, any
appraisals, solvency analysis, valuations, modeling, PowerPoints, presentations, fully functional
Microsoft Excel models and related support, or other materials relating thereto, that FT Partners
prepared relating to any proposed strategic alternatives for the Company, including the Transaction
and/or Project Green.
Request No. 2:
All documents that FT Partners reviewed in connection with any of its proposed or discussed
strategic alternatives for the Company, including the Transaction and/or Project Green.
Request No. 3:
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All communications between FT Partners and the Company, its Board or management, relating to
any proposed strategic alternatives for the Company, including the Transaction and/or Project
Green.
Request No. 4:
All communications between FT Partners and any entity or individual other than the Company,
including American Express Travel Related Services Company, Inc., any equity or security holders
of the Company and/or its predecessor(s), debt holders of the Company and/or its predecessor(s),
Fortis Advisors, LLC, including any employees, representatives or agents thereof and/or any
financial advisors or representatives of any entity, relating to any proposed strategic alternatives
for the Company, including the Transaction and/or Project Green.
Request No. 5:
All internal communications between and/or among FT Partners’ representatives, employees,
managing directors, and/or agents relating to any proposed strategic alternatives for the Company,
including the Transaction and/or Project Green.
Request No. 6:
All FT Partners work papers, analysis or other materials reflecting its work relating to any proposed
strategic alternatives for the Company, including the Transaction and/or Project Green.
Request No. 7:
All engagement letters between the Company and FT Partners.
Request No. 8:
All documents that were contained in any data room that was created for, or utilized in connection
with, the Transaction.
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Request No. 9:
All documents provided or made available to American Express Travel Related Services
Company, Inc. in connection with the Transaction.
[Remainder of Page Intentionally Left Blank]
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