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FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024
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EXHIBIT A
FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
IN RE SUBPOENA DUCES TECUM
AND AD TESTIFICANDUM SUBPOENA DUCES TECUM
AND SUBPOENA AD
TESTIFICANDUM
PRASSAS CAPITAL, LLC
Pursuant to the Uniform Interstate
Plaintiff/Lien Creditor/ Deposition and Discovery Act
Counterclaim Defendant, and CPLR 3119
v. Originating State: Delaware
Originating County: New Castle
LEONITE CAPITAL, LLC,
Originating Court: Court of
Defendant/Alleged Secured Chancery
Creditor/Counterclaim
Plaintiff. Originating Case Number: C.A.
No. 2022-0238-DJB
SUBPOENA DUCES TECUM AND SUBPOENA AD TESTIFCANDUM
UNDER THE UNIFORM INTERSTATE DEPOSITION AND DISCOVERY
ACT AND CPLR 3119
THE PEOPLE OF THE STATE OF NEW YORK
TO: CHAIM D. BERGER
333 Pearsall Ave
Suite 210
Cedarhurst, NY 11516
GREETINGS:
WE COMMAND YOU pursuant to Articles 23 and 31 of the Civil
Practice Law and Rules (CPLR) and the Uniform Interstate Deposition and
Discovery Act, to produce for examination and inspection on or before
February 28, 2024, at the office of Brach Eichler LLC, 5 Penn Plaza, 23rd
Floor, New York, NY 10001 to the attention of Edward D. Altabet, Esq., or via
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electronic means to ealtabet@bracheichler.com, the documents and
communications set forth in Schedule A hereto as more particularly directed
and described therein.
WE FURTHER COMMAND YOU to appear at the office of Brach
Eichler LLC located at 5 Penn Plaza, 23d Floor, New York, NY 10001, on March
13, 2024, at 10:00 AM, to give testimony upon oral examination before a notary
public who is not an attorney or employee of an attorney for any party or
prospective party herein, or some other officer authorized to administered oaths
and may be recorded by stenographic, audio, video and/or real-time transcription
(e.g., LiveNote) means. Such examination will continue from day to day until
completed.
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR
3101(a)(4) you are being subpoenaed because you have in your possession,
custody, or control material, necessary, and relevant information concerning the
claims by the plaintiff, Prassas Capital, LLC, in connection with the case styled
Prassas Capital, LLC v. Leonite Capital, LLC (C.A. No. 2022-0238-DJB) that is
pending in the Delaware Court of Chancery and which concerns the
enforcement of a judgment against Blue Sphere Corporation and the purported
transfer of its assets to an entity called Renewable Asset Management, s.r.o.,
which is purportedly owned by BlackGen LLC and Genesis, S.A.
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR 2308(b)(1),
failure to comply with this subpoena is punishable as a contempt of Court and shall
make you liable to the person on whose behalf this subpoena was issued for a
penalty not to exceed fifty (50) dollars and all damages sustained by reason of your
failure to comply.
Dated: January 31, 2024 Brach Eichler LLC
/s/ Edward D. Altabet
Edward D. Altabet, Esq.
5 Penn Plaza, 23rd Floor
New York, NY 10001
New York, NY 10001
973.447.9671
ealtabet@bracheichler.com
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Counsel for Prassas Capital, LLC
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NOTICE PURSUANT TO CPLR 3119(b)(3)(ii)
Counsel of Record
Edward D. Altabet, Esq. Christopher P. Simon, Esq.
Brach Eichler LLC Kevin S. Mann, Esq.
5 Penn Plaza, 23rd Floor Cross & Simon, LLC
New York, NY 10001 1105 N. Market St., Suite 901
973.447.9671 Wilmington, DE 19801
ealtabet@bracheichler.com 302.777.4200
csimon@crosslaw.com
Counsel for Prassas Capital, LLC kmann@crosslaw.com
Counsel for Leonite Capital, LLC
Jamie L. Brown, Esq. Amy Shapiro, Esq.
Emily A. Letcher, Esq. Hinman, Howard & Kattell, LLP
Heyman Enerio Gattuso & Hirzel 80 Exchange Street
LLP Binghamton, New York 13901
300 Delaware Ave., Suite 200 607.231.6741
Wilmington, DE 19801 ashapiro@hhk.com
(302) 472-7314
eletcher@hegh.law Counsel for Leonite Capital, LLC
Counsel for Prassas Capital, LLC
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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
PRASSAS CAPITAL, LLC, :
:
Plaintiff/Lien Creditor/ :
Counterclaim Defendant, :
:
v. : C.A. No. 2022-0238-DJB
:
: Related Superior Court Case:
LEONITE CAPITAL, LLC, : C.A. No.: N20J-00626-DJB
:
Defendant/Alleged Secured :
Creditor/ Counterclaim Plaintiff. :
SUBPOENA DUCES TECUM AND SUBPOENA AD TESTIFICANDUM
TO: CHAIM D. BERGER
333 Pearsall Ave
Suite 210
Cedarhurst, NY 11516
YOU ARE HEREBY COMMANDED: To produce and permit inspection
and copying of designated documents, electronically stored information or tangible
things in your possession, custody or control in accordance with the attached
Schedule A definitions and instructions on or before February 28, 2024, or date as
may be agreed by the parties or ordered by the Court.
YOU ARE HEREBY FURTHER COMMANDED: To appear for a
deposition, pursuant to Court of Chancery Rule 45. The deposition shall take place
at the office of Brach Eichler LLC located at 5 Penn Plaza, 23d Floor, New York,
NY 10001, on March 13, 2024, at 10:00 AM ET, or at such other location or date
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as may be agreed by the parties or ordered by the Court, and shall continue from day
to day until completed. The deposition shall be conducted before a person
authorized by law to administer oaths and may be recorded by stenographic, audio,
video and/or real-time transcription (e.g., LiveNote) means.
This subpoena is issued pursuant to Court of Chancery Rule 45, a copy of
which is attached hereto as Schedule B, setting forth the protections and duties with
respect to this subpoena.
HEYMAN ENERIO
GATTUSO & HIRZEL LLP
/s/ Emily A. Letcher
Jamie L. Brown (# 5551)
Emily A. Letcher (# 6560)
300 Delaware Avenue, Suite 200
Wilmington, DE 19801
(302) 472-7300
Attorneys for Prassas Capital, LLC
OF COUNSEL:
BRACH EICHLER LLC
Edward D. Altabet
101 Eisenhower Parkway
Roseland, NJ 07068
(973) 228-5700
Dated: January 29, 2024
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SCHEDULE A TO SUBPOENA
DEFINITIONS
1. “Prassas,” “Plaintiff,” or “Judgment Creditor” means Prassas Capital,
LLC.
2. “Berger” or “You” means Chaim D. Berger, Esq. a/k/a Dovi Berger
(NY Bar ID 5264155).
3. “Blue Sphere” or “Judgment Debtor” means Blue Sphere Corporation
(ticker “BLSP”) and all its principals, managers, members, officers, directors,
agents, employees, attorneys, insurers, subsidiaries (as defined further below),
representatives, affiliates, and any other persons or entities, acting or purporting to
act on behalf of its behalf.
4. “Blue Sphere’s Subsidiaries” or “Subsidiaries” includes Blue Sphere
Italy S.r.L., an Italian entity; Eastern Sphere, Ltd., an Israeli entity; Blue Sphere
Braban, B.V., a Netherlands entity; Bino Sphere, LLC, a Delaware entity; Blue
Sphere Pavia, S.r.L., an Italian entity, Renewable Energy Management Netherlands
B.V.; and all of their principals, managers, members, officers, directors, agents,
employees, attorneys, insurers, subsidiaries, representatives, affiliates, and any other
persons or entities, acting or purporting to act on behalf of its behalf.
5. “BlackGen” means BlackGen, LLC, and all its principals, managers,
members, officers, directors, agents, employees, attorneys, insurers, subsidiaries,
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representatives, affiliates, and any other persons or entities, acting or purporting to
act on its behalf.
6. “Genesis” means Genesis S.A. and all its principals, managers,
members, officers, directors, agents, employees, attorneys, insurers, subsidiaries,
representatives, affiliates, and any other persons or entities, acting or purporting to
act on its behalf.
7. “Leonite” means the defendant, Leonite Capital, LLC, and all its
principals, managers, members, officers, directors, agents, employees, attorneys,
insurers, subsidiaries, representatives, affiliates, and any other persons or entities,
acting or purporting to act on behalf of its behalf.
8. “HHK” means the law firm of Hinman, Howard & Kattell LLP and all
its principals, managers, members, officers, directors, agents, employees, attorneys,
insurers, subsidiaries, representatives, affiliates, and any other persons or entities,
acting or purporting to act on behalf of its behalf.
9. “Cliffordale” means Cliffordale Capital LLC.
10. “Cliffordale Entities” means Cliffordale, Denny Holdings of Southwest
Florida, LLC, Ronald D. Billitier, R. Alfred Brand III, Gary J. Haseley, and Thomas
J. McDonough.
11. “RAM” means Renewable Asset Management, s.r.o, a company
organized and existing under the laws of the Czech Republic and all its principals,
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managers, members, officers, directors, agents, employees, attorneys, insurers,
subsidiaries, representatives, affiliates, and any other persons or entities, acting or
purporting to act on behalf of its behalf.
12. “Marek” means Petr Marek.
13. “Kopelowitz” means Shaul Kopelowitz.
14. “Tannen” means Jeremy Tannen, Kopelowitz’s son-in-law.
15. “Palas” means Shlomo “Shlomi” Palas.
16. “Tenzer” means Marc J. Tenzer.
17. “HOT” means that the document styled HEADS OF TERMS
AGREEMENT dated September 29, 2019, executed by Marek on behalf of Genesis
and by Berger on behalf of BlackGen.
18. “York” means York Capital Management and all its principals,
managers, members, officers, directors, agents, employees, attorneys, insurers,
subsidiaries, representatives, affiliates, and any other persons or entities, acting or
purporting to act on behalf of its behalf.
19. “YREP” means York Renewable Energy Partners, LLC, and and all its
principals, managers, members, officers, directors, agents, employees, attorneys,
insurers, subsidiaries, representatives, affiliates, and any other persons or entities,
acting or purporting to act on behalf of its behalf.
20. “CEP” means Concord Energy Partners, LLC and all its principals,
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managers, members, officers, directors, agents, employees, attorneys, insurers,
subsidiaries, representatives, affiliates, and any other persons or entities, acting or
purporting to act on behalf of its behalf.
21. “REIP” means Rhode Island Energy Partners, LLC and all its
principals, managers, members, officers, directors, agents, employees, attorneys,
insurers, subsidiaries, representatives, affiliates, and any other persons or entities,
acting or purporting to act on behalf of its behalf.
22. “Judgment” means that certain judgment that was entered by the United
States District Court for the Western District of North Carolina, Charlotte Division
in the matter styled Prassas Capital LLC v. Blue Sphere Corporation (Docket No.
3:17-cv-00131-RJC-DCK) (the “Lawsuit”) on August 6, 2019, as amended by said
federal court on February 6, 2020, in favor of Prassas and against Blue Sphere.
23. “Mechanical Completion Payment” means the set or series of payments
due from CEP and RIEP to Blue Sphere as provided for under Section 6.01 of the
CEP and RIEP Amended and Restated Limited Liability Company Agreements
dated January 30, 2015 and April 8, 2015, respectively.
24. “2018 Financing” means and refers to the set and series of transactions
memorialized and evidenced, at least in part, by and through the: (a) Senior Secured
Promissory Note dated September 16, 2018 (“Note 1”); (b) Senior Secured
Convertible Promissory Note dated November 5, 2018, (“Note 2”); and (c) Senior
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Secured Convertible Promissory Note dated May 17, 2019 (“Note 3”) (together with
any allonge or assignment thereof with GS Capital Partners, LLC).
25. “August 2019 Financing” means and refers to the set and series of
transactions memorialized and evidenced, at least in part, by and through the: (a)
Security and Pledge Agreement dated August 18, 2019 between Blue Sphere and
Leonite (“August SPA”); (b) Subsidiaries’ Security and Pledge Agreement between
Blue Sphere’s Subsidiaries and Leonite (“Subsidiaries SPA”); (c) Consolidated
Senior Secured Convertible Promissory Note dated August 18, 2019 (“CCN 1”); (d)
Senior Secured Promissory Note dated August 18, 2019, in the principal amount of
$14,500 (the “14.5K Note”); and (e) Senior Secured Promissory Note dated August
25, 2019 in the principal amount of $25,000 (the “25K Note”).
26. “November 2019 Financing” refers to the set and series of transactions
memorialized and evidenced, at least in part, by and through the: (a) Consolidated
Senior Secured Convertible Promissory Note dated November 18, 2019 (“CCN 2”);
and (b) Security and Pledge Agreement dated November 18, 2019 between Blue
Sphere and Leonite (“November SPA”).
27. “2019 Forbearance Agreement” means that certain Forbearance
Agreement dated November 18, 2019 between Blue Sphere and Leonite.
28. “2020 Forbearance Agreement” means that certain Forbearance
Agreement and First Amendment to Consolidated Senior Secured Convertible
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Promissory Note dated February 18, 2020 between Blue Sphere and Leonite.
29. “July 2020 Deal” means that set and series of transactions
memorialized and evidenced, at least in part, by and through the: (a) Purchase and
Sale Agreement dated on or about July 10, 2020 by and between Leonite and the
Cliffordale Parties (the “PSA”) (Leonite 00052-69); (b) Security and Pledge
Agreement dated July 10, 2020 by and between Blue Sphere and the Cliffordale
Parties (“BS-Cliffordale SPA”); and (c) Security and Pledge Agreement dated July
10, 2020 between RAM and the Cliffordale Parties (“RAM-Cliffordale SPA”).
30. “Bill of Sale” means the instrument styled as a Bill of Sale and
Assignment of Equity Interests between Blue Sphere and RAM dated June 20, 2020.
31. “Person” means any natural person and any non-natural person or
entity, including a limited liability company, professional corporation, corporation,
partnership, limited partnership, general partnership, or any other corporate or
related entity known to or recognized by law.
32. The universal quantifier “all” (or “any”) means all, each, any, and
every, and shall be construed so as to bring within the scope of the discovery request
all responses that might otherwise be construed to be outside its scope.
33. A request seeking “documents sufficient to …” is a request to produce
an adequate or sufficient amount of information to answer or respond to the request.
34. The term “communication” means the transmittal of information (in the
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form of facts, ideas, inquiries or otherwise) including all correspondence, including
emails and text messages, whether printed, typed, photocopied, handwritten,
recorded, stored electronically, or produced or reproduced, by any process, in any
medium, including without limitation print, audio/video recording, facsimile,
electronic or digital media, film, or three-dimensional model.
35. The term “concerning” means relating to, referring to, describing,
evidencing, reflecting, regarding, or constituting. In this regard, a document or
communication “concerning” a given subject matter means any document or
communication which relates to, refers to, describes, evidences, constitutes, is
incidental to, contains, embodies, comprises, reflects, identifies, states, deals with,
comments on, responds to, analyzes, supports, contains information concerning, or
is in any way pertinent to that subject, including, without limitation, documents
concerning the preparation or presentation of other documents.
36. The term “document” shall have the broadest meaning permitted by
Delaware law and includes, without limitation, all originals, copies (if the originals
are not available), non-identical copies (whether different from the original because
of underlining, editing marks, marginalia, or notes made on or attached to such copy
or otherwise), and drafts of any writing, drawing, photograph, or recording,
including all correspondence and email (whether printed, typed, photocopied,
handwritten, recorded, stored, or produced or reproduced by any process in any
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medium, including without limitation: print, audio or video recording, facsimile,
electronic mail, film or three-dimensional model), or any compilation of
information, reports, memoranda, diaries, calendars, summaries of personal
conversations or interviews, lists of persons attending meetings or conferences,
reports or summaries of meetings, presentations, speeches, note pads, notebooks,
postcards, “Post-It” notes, stenographic notes, spreadsheets, contracts, agreements,
appraisals, analyses, purchase orders, bills of sale, publications, articles, books,
pamphlets, circulars, microfilm, microfiche, studies, logs, surveys, instruments,
circulars, press releases, accounts, and any electronic or digital information stored
on any computer, server, mainframe, or other storage device. A draft or non-identical
copy is a separate document within the meaning of this term.
37. The term “including” means “including, without limitation” or
“including but not limited to.”
38. “Relevant Period” means January 1, 2018 through the present. Unless
a request specifies a different time period, each request shall be construed to be
limited to the Relevant Period.
39. All other terms not otherwise defined herein or within any of the
documents referenced above shall have their plain and ordinary meaning and shall
be construed so as to make any request, sentence, or statement sensible and
comprehensible to an ordinary speaker of the English language.
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INSTRUCTIONS
1. In responding to each request set forth below (each a “Request”), You
are to produce all documents that are in Your possession, custody, or control; or in
the possession, custody, or control of any of Your agents, servants, financial
advisors, or attorneys. A document is deemed to be in Your control if You have the
right or ability to secure the document or a copy thereof from another person or entity
having actual possession thereof even if that entity or person is an unrelated third-
party.
2. Each Request is to be responded to fully, unless it is objected to in good
faith for prima facie valid reasons, in which event, the reasons for all objections shall
be stated in detail. If an objection pertains to only a portion of a Request, or to a
word, phrase, or clause contained within such request, You are to state the objections
to that portion only and respond to the remainder of the Request. You may not fail
or refuse to respond or produce in response to a part of a Request merely because
You object to another part of the Request.
3. All objections must state with particularity whether and in what manner
the objection is being relied upon as a basis for limiting the scope of the response or
production of any documents. If, in responding to any of the following Requests,
You claim any ambiguity in interpreting the Request, or a definition or instruction
applicable thereto, You shall not use such claim as a basis for refusing to respond or
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produce documents, but instead shall set forth as part of Your response the language
deemed to be ambiguous and the interpretation chosen or used in responding to the
Request.
4. Unless an express reference is made to another paragraph, each Request
herein should be construed independently and not by reference to any other Request
for purposes of limitation.
5. You are required to produce documents as they are kept in the usual or
ordinary course of business, in the original files, file folders (including electronic or
digital file folders), cartons or containers in which they are found, and grouped by
the Request to which they respond.
6. If responsive information appears on one or more pages of a multi-page
document, provide the entire document, including any exhibits or attachments
thereto. Except pursuant to a claim of privilege or work product, no document
should be altered, defaced, masked, or redacted prior to production.
7. Documents are to be produced in their entirety without abbreviation or
expurgation. In making documents available, all documents which are physically
attached to each other in files shall be made available in that form. Documents which
are segregated or separated from other documents, whether by inclusion in binders,
files, sub-files, or by use of dividers, tabs or any other method, shall be made
available in that form. Documents shall be made available in the order in which they
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were maintained.
8. Documents stored electronically are to be produced in a text-searchable
electronic form (and/or text searchable pdf format) or in such other form as the
parties may mutually agree. Electronically stored information (ESI) shall be
produced in a manner that is compatible with an OCR reader and are to be produced
in native format for any dynamic document (e.g. spreadsheet) or TIFF or similar
format for any non-dynamic document (e.g. an email) together with an appropriate
load file that clearly delineates the beginning and end of document.
9. If You claim that any document that is required to be identified or
produced by You in response to any of the following Requests is privileged or
otherwise immune from disclosure on any ground, including but not limited to,
grounds of attorney-client communication, attorney work product, or otherwise,
provide a privilege log that contains at least the following information:
a. Title of the Document;
b. Type of Document;
c. Date of Document;
d. Subject Matter of Document;
e. The Author of the Document;
f. The actual and intended Recipient(s) of the Document;
g. The nature of the privilege asserted;
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h. The precise basis upon which the Document is being withheld; and
i. For each document or attachment withheld under a claim of attorney
work-product protection, the identity of the specific litigation or regulatory
proceeding that was anticipated or pending to which such document or attachment
relates.
j. For each person listed in the privilege log, the log shall include the
person’s full name, address, job title, and employer or firm, and shall denote all
attorneys with an asterisk (“*”).
k. An attachment to a document must be entitled to privilege in its own
right. If an attachment is responsive and not privileged in its own right, it must be
produced. You shall provide all non-privileged portions of any responsive document
for which a claim of privilege is asserted, noting where redactions in the document
have been made.
l. If You have redacted any portion of the document, stamp the word
“redacted” on each page of the document. Privileged redactions must be included
in the privilege log.
10. The terms “and” and “or” shall be construed either conjunctively or
disjunctively as necessary to bring within the scope of the Request all responses that
might otherwise be construed to be outside of its scope.
11. The present tense shall include the past tense, and vice versa. The use
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of the singular in any request shall include the plural, and the plural shall include the
singular.
12. If any responsive document is no longer in existence, cannot be located,
or is not in Your possession, custody, or control, identify it, describe its subject
matter, and describe its disposition (including, without limitation, identifying the
person having knowledge of the disposition).
13. When a Request seeks production of “all documents” of a particular
type, You must produce each and every responsive document, including any unique
copies of documents that may exist (e.g. if a request calls for the production of a
contract, a prior version of the contract or a version of the contract with hand written
marginalia is to be deemed a separate document).
14. In lieu of producing original documents, You may produce a legible
copy of each document requested. Any such copy must be identical to the original.
Black and white copies may be made of color documents if doing so will not impair
the readability, legibility, or meaning of such document, and subject to later
production of the color version if requested.
DOCUMENT REQUESTS
1. All documents concerning or relating to the formation, organization,
management structure, initial capitalization, and ownership of BlackGen.
2. All documents concerning or relating to Tannen and his ownership
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interest in BlackGen.
3. All documents concerning or relating to the identities of any other
owner or holder of any equity interest (regardless of how called or denominated) in
BlackGen.
4. Documents sufficient to identify all officers, managers, or authorized
representatives of BlackGen.
5. All communications between You and Tannen relating to BlackGen,
RAM, Genesis, Leonite, Blue Sphere, Blue Sphere’s Subsidiaries, Prassas, the
Cliffordale Entities, or Kopelowitz.
6. All documents concerning or relating to RAM.
7. All communications concerning or relating to RAM.
8. All documents concerning or relating to Genesis.
9. All communications concerning or relating to Genesis.
10. All documents concerning or relating to Blue Sphere, including Blue
Sphere’s Subsidiaries.
11. All communications concerning or relating to Blue Sphere, including
Blue Sphere’s Subsidiaries.
12. All documents concerning or relating to Prassas.
13. All communications concerning or relating to Prassas.
14. All documents concerning or relating to the Cliffordale Entities.
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15. All communications concerning or relating to the Cliffordale Entities.
16. All documents and communications concerning or relating to the HOT
(see Exhibit 1 hereto).
17. Copies of all Annexes referred to in the HOT.
18. A copy of the 10 year financial projection referred to in the HOT.
19. All communications between You and any officer, manager, director,
member, owner, employee, or agent of BlackGen.
20. All communications between You and Marek concerning or relating to
BlackGen, RAM, Genesis, Prassas, Leonite, the Cliffordale Entities, and/or Blue
Sphere (including its Subsidiaries).
21. All communications between You and Palas concerning or relating to
BlackGen, RAM, Genesis, Prassas, Leonite, the Cliffordale Entities, and/or Blue
Sphere (including its Subsidiaries).
22. All communications between You and any officer, manager, director,
member, owner, employee, or agent of Blue Sphere concerning or relating to
BlackGen, RAM, Genesis, Prassas, Leonite, the Cliffordale Entities, and/or Blue
Sphere (including its Subsidiaries).
23. All communications between You and any officer, manager, director,
member, owner, employee, or agent of RAM concerning or relating to BlackGen,
RAM, Genesis, Prassas, Leonite, the Cliffordale Entities, and/or Blue Sphere
21
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(including its Subsidiaries).
24. All communications between You and any officer, manager, director,
member, owner, employee, or agent of Genesis concerning or relating to BlackGen,
RAM, Genesis, Prassas, Leonite, the Cliffordale Entities, and/or Blue Sphere
(including its Subsidiaries).
25. All communications between You and any officer, manager, director,
member, owner, employee, or agent of Blue Sphere’s Subsidiaries concerning or
relating to BlackGen, RAM, Genesis, Prassas, Leonite, the Cliffordale Entities,
and/or Blue Sphere (including its Subsidiaries).
26. All communications between You and Kopelowitz concerning or
relating to BlackGen, RAM, Genesis, Prassas, the Cliffordale Entities, and/or Blue
Sphere (including its Subsidiaries).
27. All communications between You and any affiliated entity of Leonite
or entity otherwise under the control of Kopelowitz or any officer, manager, director,
member, owner, employee, or agent of such affiliate of Leonite concerning or
relating to BlackGen, RAM, Genesis, Prassas, the Cliffordale Entities, and/or Blue
Sphere (including its Subsidiaries).
28. All communications between You and any owner, member, manager,
officer, director, employee, or agent of Leonite, including but not limited to Avi
Geller and Jake Morgenstern, concerning or relating to BlackGen, RAM, Genesis,
22
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Prassas, the Cliffordale Entities, and/or Blue Sphere (including its Subsidiaries).
29. All communications between You and HHK or any attorney thereof,
including but not limited to Harvey Mervis, Ann Cianflone, and Andria Adigwe,
concerning or relating to BlackGen, Genesis, RAM, Blue Sphere, Blue Sphere’s
Subsidiaries, Prassas, and/or the Cliffordale Entities.
23
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SCHEDULE B TO SUBPOENA
COURT OF CHANCERY RULE 45(c) and (d)
(c) Protection of persons subject to subpoenas.
(1) A party or an attorney responsible for the issuance and service of a
subpoena shall take reasonable steps to avoid imposing undue burden or expense on
a person subject to that subpoena. The court on behalf of which the subpoena was
issued shall enforce this duty and may impose upon the party or attorney in breach
of this duty an appropriate sanction, which may include, but is not limited to, lost
earnings and a reasonable attorney's fee.
(2)(A) A person commanded to produce and permit inspection and copying of
designated documents, electronically stored information, or tangible things or
inspection of premises need not appear in person at the place of production or
inspection unless commanded to appear for deposition, hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce
and permit inspection and copying may, within 14 days after service of the subpoena
or before the time specified for compliance if such time is less than 14 days after
service, serve upon the party or attorney designated in the subpoena written
objection to inspection or copying of any or all of the designated materials or of the
premises. If objection is made, the party serving the subpoena shall not be entitled
to inspect and copy the materials or inspect the premises except pursuant to an order
24
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of the court by which the subpoena was issued. If objection has been made, the party
serving the subpoena may, upon notice to the person commanded to produce, move
at any time for an order to compel production. Such an order to compel production
shall protect any person who is not a party or an officer of a party from significant
expense resulting from the inspection and copying commanded.
(3)(A) On timely motion, the court on behalf of which the subpoena was
issued shall quash or modify the subpoena if it
(i) fails to allow reasonable time for compliance;
(ii) requires disclosure of privileged or other protected matter and no
exception or waiver applies; or
(iii) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential research,
development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion or information not
describing specific events or occurrences in dispute and resulting from the expert's
study made not at the request of any party, the court on behalf of which the subpoena
was issued may, to protect a person subject to or affected by the subpoena, quash or
modify the subpoena or, if the party in whose behalf the subpoena is issued shows a
substantial need for the testimony or material that cannot be otherwise met without
25
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undue hardship and assures that the person to whom the subpoena is addressed will
be reasonably compensated, the Court may order appearance or production only
upon specified conditions.
(d) Duty in responding to subpoena.
(1) If a subpoena does not specify a form for producing documents or
electronically stored information, the person responding shall produce it in a form
or forms in which it is ordinarily maintained, or in which it is reasonably usable.
Absent a showing of good cause, the person responding need not produce the same
documents or electronically stored information in more than one form. The person
responding need not provide discovery of documents or electronically stored
information from sources that the person identifies as not reasonably accessible
because of undue burden or cost. On a motion to compel discovery or for a protective
order, the person responding to a subpoena must show that the information is not
reasonably accessible because of undue burden or cost. If that showing is made, the
Court nevertheless may order discovery from such sources if the requesting party
shows good cause. The Court may specify the conditions for the discovery.
(2) When information subject to a subpoena is withheld on a claim that it is
privileged or subject to protection as trial preparation materials, the claim shall be
made expressly and shall be supported by a description of the nature of the
documents, electronically stored information, or tangible things not produced that
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is sufficient to enable the demanding party to contest the claim.
27
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Preview
FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 EXHIBIT A FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU IN RE SUBPOENA DUCES TECUM AND AD TESTIFICANDUM SUBPOENA DUCES TECUM AND SUBPOENA AD TESTIFICANDUM PRASSAS CAPITAL, LLC Pursuant to the Uniform Interstate Plaintiff/Lien Creditor/ Deposition and Discovery Act Counterclaim Defendant, and CPLR 3119 v. Originating State: Delaware Originating County: New Castle LEONITE CAPITAL, LLC, Originating Court: Court of Defendant/Alleged Secured Chancery Creditor/Counterclaim Plaintiff. Originating Case Number: C.A. No. 2022-0238-DJB SUBPOENA DUCES TECUM AND SUBPOENA AD TESTIFCANDUM UNDER THE UNIFORM INTERSTATE DEPOSITION AND DISCOVERY ACT AND CPLR 3119 THE PEOPLE OF THE STATE OF NEW YORK TO: CHAIM D. BERGER 333 Pearsall Ave Suite 210 Cedarhurst, NY 11516 GREETINGS: WE COMMAND YOU pursuant to Articles 23 and 31 of the Civil Practice Law and Rules (CPLR) and the Uniform Interstate Deposition and Discovery Act, to produce for examination and inspection on or before February 28, 2024, at the office of Brach Eichler LLC, 5 Penn Plaza, 23rd Floor, New York, NY 10001 to the attention of Edward D. Altabet, Esq., or via BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 electronic means to ealtabet@bracheichler.com, the documents and communications set forth in Schedule A hereto as more particularly directed and described therein. WE FURTHER COMMAND YOU to appear at the office of Brach Eichler LLC located at 5 Penn Plaza, 23d Floor, New York, NY 10001, on March 13, 2024, at 10:00 AM, to give testimony upon oral examination before a notary public who is not an attorney or employee of an attorney for any party or prospective party herein, or some other officer authorized to administered oaths and may be recorded by stenographic, audio, video and/or real-time transcription (e.g., LiveNote) means. Such examination will continue from day to day until completed. PLEASE TAKE FURTHER NOTICE that pursuant to CPLR 3101(a)(4) you are being subpoenaed because you have in your possession, custody, or control material, necessary, and relevant information concerning the claims by the plaintiff, Prassas Capital, LLC, in connection with the case styled Prassas Capital, LLC v. Leonite Capital, LLC (C.A. No. 2022-0238-DJB) that is pending in the Delaware Court of Chancery and which concerns the enforcement of a judgment against Blue Sphere Corporation and the purported transfer of its assets to an entity called Renewable Asset Management, s.r.o., which is purportedly owned by BlackGen LLC and Genesis, S.A. PLEASE TAKE FURTHER NOTICE that pursuant to CPLR 2308(b)(1), failure to comply with this subpoena is punishable as a contempt of Court and shall make you liable to the person on whose behalf this subpoena was issued for a penalty not to exceed fifty (50) dollars and all damages sustained by reason of your failure to comply. Dated: January 31, 2024 Brach Eichler LLC /s/ Edward D. Altabet Edward D. Altabet, Esq. 5 Penn Plaza, 23rd Floor New York, NY 10001 New York, NY 10001 973.447.9671 ealtabet@bracheichler.com 2 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 Counsel for Prassas Capital, LLC 3 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 NOTICE PURSUANT TO CPLR 3119(b)(3)(ii) Counsel of Record Edward D. Altabet, Esq. Christopher P. Simon, Esq. Brach Eichler LLC Kevin S. Mann, Esq. 5 Penn Plaza, 23rd Floor Cross & Simon, LLC New York, NY 10001 1105 N. Market St., Suite 901 973.447.9671 Wilmington, DE 19801 ealtabet@bracheichler.com 302.777.4200 csimon@crosslaw.com Counsel for Prassas Capital, LLC kmann@crosslaw.com Counsel for Leonite Capital, LLC Jamie L. Brown, Esq. Amy Shapiro, Esq. Emily A. Letcher, Esq. Hinman, Howard & Kattell, LLP Heyman Enerio Gattuso & Hirzel 80 Exchange Street LLP Binghamton, New York 13901 300 Delaware Ave., Suite 200 607.231.6741 Wilmington, DE 19801 ashapiro@hhk.com (302) 472-7314 eletcher@hegh.law Counsel for Leonite Capital, LLC Counsel for Prassas Capital, LLC 4 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE PRASSAS CAPITAL, LLC, : : Plaintiff/Lien Creditor/ : Counterclaim Defendant, : : v. : C.A. No. 2022-0238-DJB : : Related Superior Court Case: LEONITE CAPITAL, LLC, : C.A. No.: N20J-00626-DJB : Defendant/Alleged Secured : Creditor/ Counterclaim Plaintiff. : SUBPOENA DUCES TECUM AND SUBPOENA AD TESTIFICANDUM TO: CHAIM D. BERGER 333 Pearsall Ave Suite 210 Cedarhurst, NY 11516 YOU ARE HEREBY COMMANDED: To produce and permit inspection and copying of designated documents, electronically stored information or tangible things in your possession, custody or control in accordance with the attached Schedule A definitions and instructions on or before February 28, 2024, or date as may be agreed by the parties or ordered by the Court. YOU ARE HEREBY FURTHER COMMANDED: To appear for a deposition, pursuant to Court of Chancery Rule 45. The deposition shall take place at the office of Brach Eichler LLC located at 5 Penn Plaza, 23d Floor, New York, NY 10001, on March 13, 2024, at 10:00 AM ET, or at such other location or date 5 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 as may be agreed by the parties or ordered by the Court, and shall continue from day to day until completed. The deposition shall be conducted before a person authorized by law to administer oaths and may be recorded by stenographic, audio, video and/or real-time transcription (e.g., LiveNote) means. This subpoena is issued pursuant to Court of Chancery Rule 45, a copy of which is attached hereto as Schedule B, setting forth the protections and duties with respect to this subpoena. HEYMAN ENERIO GATTUSO & HIRZEL LLP /s/ Emily A. Letcher Jamie L. Brown (# 5551) Emily A. Letcher (# 6560) 300 Delaware Avenue, Suite 200 Wilmington, DE 19801 (302) 472-7300 Attorneys for Prassas Capital, LLC OF COUNSEL: BRACH EICHLER LLC Edward D. Altabet 101 Eisenhower Parkway Roseland, NJ 07068 (973) 228-5700 Dated: January 29, 2024 6 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 SCHEDULE A TO SUBPOENA DEFINITIONS 1. “Prassas,” “Plaintiff,” or “Judgment Creditor” means Prassas Capital, LLC. 2. “Berger” or “You” means Chaim D. Berger, Esq. a/k/a Dovi Berger (NY Bar ID 5264155). 3. “Blue Sphere” or “Judgment Debtor” means Blue Sphere Corporation (ticker “BLSP”) and all its principals, managers, members, officers, directors, agents, employees, attorneys, insurers, subsidiaries (as defined further below), representatives, affiliates, and any other persons or entities, acting or purporting to act on behalf of its behalf. 4. “Blue Sphere’s Subsidiaries” or “Subsidiaries” includes Blue Sphere Italy S.r.L., an Italian entity; Eastern Sphere, Ltd., an Israeli entity; Blue Sphere Braban, B.V., a Netherlands entity; Bino Sphere, LLC, a Delaware entity; Blue Sphere Pavia, S.r.L., an Italian entity, Renewable Energy Management Netherlands B.V.; and all of their principals, managers, members, officers, directors, agents, employees, attorneys, insurers, subsidiaries, representatives, affiliates, and any other persons or entities, acting or purporting to act on behalf of its behalf. 5. “BlackGen” means BlackGen, LLC, and all its principals, managers, members, officers, directors, agents, employees, attorneys, insurers, subsidiaries, 7 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 representatives, affiliates, and any other persons or entities, acting or purporting to act on its behalf. 6. “Genesis” means Genesis S.A. and all its principals, managers, members, officers, directors, agents, employees, attorneys, insurers, subsidiaries, representatives, affiliates, and any other persons or entities, acting or purporting to act on its behalf. 7. “Leonite” means the defendant, Leonite Capital, LLC, and all its principals, managers, members, officers, directors, agents, employees, attorneys, insurers, subsidiaries, representatives, affiliates, and any other persons or entities, acting or purporting to act on behalf of its behalf. 8. “HHK” means the law firm of Hinman, Howard & Kattell LLP and all its principals, managers, members, officers, directors, agents, employees, attorneys, insurers, subsidiaries, representatives, affiliates, and any other persons or entities, acting or purporting to act on behalf of its behalf. 9. “Cliffordale” means Cliffordale Capital LLC. 10. “Cliffordale Entities” means Cliffordale, Denny Holdings of Southwest Florida, LLC, Ronald D. Billitier, R. Alfred Brand III, Gary J. Haseley, and Thomas J. McDonough. 11. “RAM” means Renewable Asset Management, s.r.o, a company organized and existing under the laws of the Czech Republic and all its principals, 8 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 managers, members, officers, directors, agents, employees, attorneys, insurers, subsidiaries, representatives, affiliates, and any other persons or entities, acting or purporting to act on behalf of its behalf. 12. “Marek” means Petr Marek. 13. “Kopelowitz” means Shaul Kopelowitz. 14. “Tannen” means Jeremy Tannen, Kopelowitz’s son-in-law. 15. “Palas” means Shlomo “Shlomi” Palas. 16. “Tenzer” means Marc J. Tenzer. 17. “HOT” means that the document styled HEADS OF TERMS AGREEMENT dated September 29, 2019, executed by Marek on behalf of Genesis and by Berger on behalf of BlackGen. 18. “York” means York Capital Management and all its principals, managers, members, officers, directors, agents, employees, attorneys, insurers, subsidiaries, representatives, affiliates, and any other persons or entities, acting or purporting to act on behalf of its behalf. 19. “YREP” means York Renewable Energy Partners, LLC, and and all its principals, managers, members, officers, directors, agents, employees, attorneys, insurers, subsidiaries, representatives, affiliates, and any other persons or entities, acting or purporting to act on behalf of its behalf. 20. “CEP” means Concord Energy Partners, LLC and all its principals, 9 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 managers, members, officers, directors, agents, employees, attorneys, insurers, subsidiaries, representatives, affiliates, and any other persons or entities, acting or purporting to act on behalf of its behalf. 21. “REIP” means Rhode Island Energy Partners, LLC and all its principals, managers, members, officers, directors, agents, employees, attorneys, insurers, subsidiaries, representatives, affiliates, and any other persons or entities, acting or purporting to act on behalf of its behalf. 22. “Judgment” means that certain judgment that was entered by the United States District Court for the Western District of North Carolina, Charlotte Division in the matter styled Prassas Capital LLC v. Blue Sphere Corporation (Docket No. 3:17-cv-00131-RJC-DCK) (the “Lawsuit”) on August 6, 2019, as amended by said federal court on February 6, 2020, in favor of Prassas and against Blue Sphere. 23. “Mechanical Completion Payment” means the set or series of payments due from CEP and RIEP to Blue Sphere as provided for under Section 6.01 of the CEP and RIEP Amended and Restated Limited Liability Company Agreements dated January 30, 2015 and April 8, 2015, respectively. 24. “2018 Financing” means and refers to the set and series of transactions memorialized and evidenced, at least in part, by and through the: (a) Senior Secured Promissory Note dated September 16, 2018 (“Note 1”); (b) Senior Secured Convertible Promissory Note dated November 5, 2018, (“Note 2”); and (c) Senior 10 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 Secured Convertible Promissory Note dated May 17, 2019 (“Note 3”) (together with any allonge or assignment thereof with GS Capital Partners, LLC). 25. “August 2019 Financing” means and refers to the set and series of transactions memorialized and evidenced, at least in part, by and through the: (a) Security and Pledge Agreement dated August 18, 2019 between Blue Sphere and Leonite (“August SPA”); (b) Subsidiaries’ Security and Pledge Agreement between Blue Sphere’s Subsidiaries and Leonite (“Subsidiaries SPA”); (c) Consolidated Senior Secured Convertible Promissory Note dated August 18, 2019 (“CCN 1”); (d) Senior Secured Promissory Note dated August 18, 2019, in the principal amount of $14,500 (the “14.5K Note”); and (e) Senior Secured Promissory Note dated August 25, 2019 in the principal amount of $25,000 (the “25K Note”). 26. “November 2019 Financing” refers to the set and series of transactions memorialized and evidenced, at least in part, by and through the: (a) Consolidated Senior Secured Convertible Promissory Note dated November 18, 2019 (“CCN 2”); and (b) Security and Pledge Agreement dated November 18, 2019 between Blue Sphere and Leonite (“November SPA”). 27. “2019 Forbearance Agreement” means that certain Forbearance Agreement dated November 18, 2019 between Blue Sphere and Leonite. 28. “2020 Forbearance Agreement” means that certain Forbearance Agreement and First Amendment to Consolidated Senior Secured Convertible 11 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 Promissory Note dated February 18, 2020 between Blue Sphere and Leonite. 29. “July 2020 Deal” means that set and series of transactions memorialized and evidenced, at least in part, by and through the: (a) Purchase and Sale Agreement dated on or about July 10, 2020 by and between Leonite and the Cliffordale Parties (the “PSA”) (Leonite 00052-69); (b) Security and Pledge Agreement dated July 10, 2020 by and between Blue Sphere and the Cliffordale Parties (“BS-Cliffordale SPA”); and (c) Security and Pledge Agreement dated July 10, 2020 between RAM and the Cliffordale Parties (“RAM-Cliffordale SPA”). 30. “Bill of Sale” means the instrument styled as a Bill of Sale and Assignment of Equity Interests between Blue Sphere and RAM dated June 20, 2020. 31. “Person” means any natural person and any non-natural person or entity, including a limited liability company, professional corporation, corporation, partnership, limited partnership, general partnership, or any other corporate or related entity known to or recognized by law. 32. The universal quantifier “all” (or “any”) means all, each, any, and every, and shall be construed so as to bring within the scope of the discovery request all responses that might otherwise be construed to be outside its scope. 33. A request seeking “documents sufficient to …” is a request to produce an adequate or sufficient amount of information to answer or respond to the request. 34. The term “communication” means the transmittal of information (in the 12 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 form of facts, ideas, inquiries or otherwise) including all correspondence, including emails and text messages, whether printed, typed, photocopied, handwritten, recorded, stored electronically, or produced or reproduced, by any process, in any medium, including without limitation print, audio/video recording, facsimile, electronic or digital media, film, or three-dimensional model. 35. The term “concerning” means relating to, referring to, describing, evidencing, reflecting, regarding, or constituting. In this regard, a document or communication “concerning” a given subject matter means any document or communication which relates to, refers to, describes, evidences, constitutes, is incidental to, contains, embodies, comprises, reflects, identifies, states, deals with, comments on, responds to, analyzes, supports, contains information concerning, or is in any way pertinent to that subject, including, without limitation, documents concerning the preparation or presentation of other documents. 36. The term “document” shall have the broadest meaning permitted by Delaware law and includes, without limitation, all originals, copies (if the originals are not available), non-identical copies (whether different from the original because of underlining, editing marks, marginalia, or notes made on or attached to such copy or otherwise), and drafts of any writing, drawing, photograph, or recording, including all correspondence and email (whether printed, typed, photocopied, handwritten, recorded, stored, or produced or reproduced by any process in any 13 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 medium, including without limitation: print, audio or video recording, facsimile, electronic mail, film or three-dimensional model), or any compilation of information, reports, memoranda, diaries, calendars, summaries of personal conversations or interviews, lists of persons attending meetings or conferences, reports or summaries of meetings, presentations, speeches, note pads, notebooks, postcards, “Post-It” notes, stenographic notes, spreadsheets, contracts, agreements, appraisals, analyses, purchase orders, bills of sale, publications, articles, books, pamphlets, circulars, microfilm, microfiche, studies, logs, surveys, instruments, circulars, press releases, accounts, and any electronic or digital information stored on any computer, server, mainframe, or other storage device. A draft or non-identical copy is a separate document within the meaning of this term. 37. The term “including” means “including, without limitation” or “including but not limited to.” 38. “Relevant Period” means January 1, 2018 through the present. Unless a request specifies a different time period, each request shall be construed to be limited to the Relevant Period. 39. All other terms not otherwise defined herein or within any of the documents referenced above shall have their plain and ordinary meaning and shall be construed so as to make any request, sentence, or statement sensible and comprehensible to an ordinary speaker of the English language. 14 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 INSTRUCTIONS 1. In responding to each request set forth below (each a “Request”), You are to produce all documents that are in Your possession, custody, or control; or in the possession, custody, or control of any of Your agents, servants, financial advisors, or attorneys. A document is deemed to be in Your control if You have the right or ability to secure the document or a copy thereof from another person or entity having actual possession thereof even if that entity or person is an unrelated third- party. 2. Each Request is to be responded to fully, unless it is objected to in good faith for prima facie valid reasons, in which event, the reasons for all objections shall be stated in detail. If an objection pertains to only a portion of a Request, or to a word, phrase, or clause contained within such request, You are to state the objections to that portion only and respond to the remainder of the Request. You may not fail or refuse to respond or produce in response to a part of a Request merely because You object to another part of the Request. 3. All objections must state with particularity whether and in what manner the objection is being relied upon as a basis for limiting the scope of the response or production of any documents. If, in responding to any of the following Requests, You claim any ambiguity in interpreting the Request, or a definition or instruction applicable thereto, You shall not use such claim as a basis for refusing to respond or 15 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 produce documents, but instead shall set forth as part of Your response the language deemed to be ambiguous and the interpretation chosen or used in responding to the Request. 4. Unless an express reference is made to another paragraph, each Request herein should be construed independently and not by reference to any other Request for purposes of limitation. 5. You are required to produce documents as they are kept in the usual or ordinary course of business, in the original files, file folders (including electronic or digital file folders), cartons or containers in which they are found, and grouped by the Request to which they respond. 6. If responsive information appears on one or more pages of a multi-page document, provide the entire document, including any exhibits or attachments thereto. Except pursuant to a claim of privilege or work product, no document should be altered, defaced, masked, or redacted prior to production. 7. Documents are to be produced in their entirety without abbreviation or expurgation. In making documents available, all documents which are physically attached to each other in files shall be made available in that form. Documents which are segregated or separated from other documents, whether by inclusion in binders, files, sub-files, or by use of dividers, tabs or any other method, shall be made available in that form. Documents shall be made available in the order in which they 16 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 were maintained. 8. Documents stored electronically are to be produced in a text-searchable electronic form (and/or text searchable pdf format) or in such other form as the parties may mutually agree. Electronically stored information (ESI) shall be produced in a manner that is compatible with an OCR reader and are to be produced in native format for any dynamic document (e.g. spreadsheet) or TIFF or similar format for any non-dynamic document (e.g. an email) together with an appropriate load file that clearly delineates the beginning and end of document. 9. If You claim that any document that is required to be identified or produced by You in response to any of the following Requests is privileged or otherwise immune from disclosure on any ground, including but not limited to, grounds of attorney-client communication, attorney work product, or otherwise, provide a privilege log that contains at least the following information: a. Title of the Document; b. Type of Document; c. Date of Document; d. Subject Matter of Document; e. The Author of the Document; f. The actual and intended Recipient(s) of the Document; g. The nature of the privilege asserted; 17 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 h. The precise basis upon which the Document is being withheld; and i. For each document or attachment withheld under a claim of attorney work-product protection, the identity of the specific litigation or regulatory proceeding that was anticipated or pending to which such document or attachment relates. j. For each person listed in the privilege log, the log shall include the person’s full name, address, job title, and employer or firm, and shall denote all attorneys with an asterisk (“*”). k. An attachment to a document must be entitled to privilege in its own right. If an attachment is responsive and not privileged in its own right, it must be produced. You shall provide all non-privileged portions of any responsive document for which a claim of privilege is asserted, noting where redactions in the document have been made. l. If You have redacted any portion of the document, stamp the word “redacted” on each page of the document. Privileged redactions must be included in the privilege log. 10. The terms “and” and “or” shall be construed either conjunctively or disjunctively as necessary to bring within the scope of the Request all responses that might otherwise be construed to be outside of its scope. 11. The present tense shall include the past tense, and vice versa. The use 18 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 of the singular in any request shall include the plural, and the plural shall include the singular. 12. If any responsive document is no longer in existence, cannot be located, or is not in Your possession, custody, or control, identify it, describe its subject matter, and describe its disposition (including, without limitation, identifying the person having knowledge of the disposition). 13. When a Request seeks production of “all documents” of a particular type, You must produce each and every responsive document, including any unique copies of documents that may exist (e.g. if a request calls for the production of a contract, a prior version of the contract or a version of the contract with hand written marginalia is to be deemed a separate document). 14. In lieu of producing original documents, You may produce a legible copy of each document requested. Any such copy must be identical to the original. Black and white copies may be made of color documents if doing so will not impair the readability, legibility, or meaning of such document, and subject to later production of the color version if requested. DOCUMENT REQUESTS 1. All documents concerning or relating to the formation, organization, management structure, initial capitalization, and ownership of BlackGen. 2. All documents concerning or relating to Tannen and his ownership 19 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 interest in BlackGen. 3. All documents concerning or relating to the identities of any other owner or holder of any equity interest (regardless of how called or denominated) in BlackGen. 4. Documents sufficient to identify all officers, managers, or authorized representatives of BlackGen. 5. All communications between You and Tannen relating to BlackGen, RAM, Genesis, Leonite, Blue Sphere, Blue Sphere’s Subsidiaries, Prassas, the Cliffordale Entities, or Kopelowitz. 6. All documents concerning or relating to RAM. 7. All communications concerning or relating to RAM. 8. All documents concerning or relating to Genesis. 9. All communications concerning or relating to Genesis. 10. All documents concerning or relating to Blue Sphere, including Blue Sphere’s Subsidiaries. 11. All communications concerning or relating to Blue Sphere, including Blue Sphere’s Subsidiaries. 12. All documents concerning or relating to Prassas. 13. All communications concerning or relating to Prassas. 14. All documents concerning or relating to the Cliffordale Entities. 20 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 15. All communications concerning or relating to the Cliffordale Entities. 16. All documents and communications concerning or relating to the HOT (see Exhibit 1 hereto). 17. Copies of all Annexes referred to in the HOT. 18. A copy of the 10 year financial projection referred to in the HOT. 19. All communications between You and any officer, manager, director, member, owner, employee, or agent of BlackGen. 20. All communications between You and Marek concerning or relating to BlackGen, RAM, Genesis, Prassas, Leonite, the Cliffordale Entities, and/or Blue Sphere (including its Subsidiaries). 21. All communications between You and Palas concerning or relating to BlackGen, RAM, Genesis, Prassas, Leonite, the Cliffordale Entities, and/or Blue Sphere (including its Subsidiaries). 22. All communications between You and any officer, manager, director, member, owner, employee, or agent of Blue Sphere concerning or relating to BlackGen, RAM, Genesis, Prassas, Leonite, the Cliffordale Entities, and/or Blue Sphere (including its Subsidiaries). 23. All communications between You and any officer, manager, director, member, owner, employee, or agent of RAM concerning or relating to BlackGen, RAM, Genesis, Prassas, Leonite, the Cliffordale Entities, and/or Blue Sphere 21 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 (including its Subsidiaries). 24. All communications between You and any officer, manager, director, member, owner, employee, or agent of Genesis concerning or relating to BlackGen, RAM, Genesis, Prassas, Leonite, the Cliffordale Entities, and/or Blue Sphere (including its Subsidiaries). 25. All communications between You and any officer, manager, director, member, owner, employee, or agent of Blue Sphere’s Subsidiaries concerning or relating to BlackGen, RAM, Genesis, Prassas, Leonite, the Cliffordale Entities, and/or Blue Sphere (including its Subsidiaries). 26. All communications between You and Kopelowitz concerning or relating to BlackGen, RAM, Genesis, Prassas, the Cliffordale Entities, and/or Blue Sphere (including its Subsidiaries). 27. All communications between You and any affiliated entity of Leonite or entity otherwise under the control of Kopelowitz or any officer, manager, director, member, owner, employee, or agent of such affiliate of Leonite concerning or relating to BlackGen, RAM, Genesis, Prassas, the Cliffordale Entities, and/or Blue Sphere (including its Subsidiaries). 28. All communications between You and any owner, member, manager, officer, director, employee, or agent of Leonite, including but not limited to Avi Geller and Jake Morgenstern, concerning or relating to BlackGen, RAM, Genesis, 22 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 Prassas, the Cliffordale Entities, and/or Blue Sphere (including its Subsidiaries). 29. All communications between You and HHK or any attorney thereof, including but not limited to Harvey Mervis, Ann Cianflone, and Andria Adigwe, concerning or relating to BlackGen, Genesis, RAM, Blue Sphere, Blue Sphere’s Subsidiaries, Prassas, and/or the Cliffordale Entities. 23 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 SCHEDULE B TO SUBPOENA COURT OF CHANCERY RULE 45(c) and (d) (c) Protection of persons subject to subpoenas. (1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and may impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee. (2)(A) A person commanded to produce and permit inspection and copying of designated documents, electronically stored information, or tangible things or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial. (B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order 24 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded. (3)(A) On timely motion, the court on behalf of which the subpoena was issued shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance; (ii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or (iii) subjects a person to undue burden. (B) If a subpoena (i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or (ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, the court on behalf of which the subpoena was issued may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without 25 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the Court may order appearance or production only upon specified conditions. (d) Duty in responding to subpoena. (1) If a subpoena does not specify a form for producing documents or electronically stored information, the person responding shall produce it in a form or forms in which it is ordinarily maintained, or in which it is reasonably usable. Absent a showing of good cause, the person responding need not produce the same documents or electronically stored information in more than one form. The person responding need not provide discovery of documents or electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On a motion to compel discovery or for a protective order, the person responding to a subpoena must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the Court nevertheless may order discovery from such sources if the requesting party shows good cause. The Court may specify the conditions for the discovery. (2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, electronically stored information, or tangible things not produced that 26 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM INDEX NO. 606984/2024 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 04/22/2024 is sufficient to enable the demanding party to contest the claim. 27 BERSDOCS.15057847.1/PRA052-283804 FILED: NASSAU COUNTY CLERK 04/22/2024 12:55 PM