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UNITED STATES BANKRUPTCY COURT

DISTRICT OF NEW HAMPSHIRE


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I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
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Chapter 11
Case No. 14-_______ (____)
Joint Administration Requested
DEBTORS EMERGENCY EX PARTE MOTION, PURSUANT TO
BANKRUPTCY CODE SECTIONS 105(a) AND 362, FOR ENTRY OF
INTERIM AND FINAL ORDERS, ESTABLISHING NOTIFICATION
PROCEDURES AND APPROVING RESTRICTIONS ON CERTAIN
TRANSFERS OF CLAIMS AGAINST AND EQUITY INTERESTS IN
THE DEBTORS NUNC PROTUNC TO THE PETITION DATE
GT Advanced Technologies Inc. (GT) and its affiliated debtors as debtors in possession
in the above-captioned cases (collectively, GTAT or the Debtors) hereby submit this motion
(the Motion), pursuant to sections 105(a) and 362 of title 11 of the United States Code (the
Bankruptcy Code), for the entry of an interim order substantially in the form attached as
Exhibit A (the Interim Order) and a final order substantially in the form attached as Exhibit B
(the Final Order, together with the Interim Order, the Orders) establishing notification
procedures and approving restrictions on certain transfers of claims against and equity interests
in GTAT. In support of this Motion, GTAT respectfully represents:
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The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
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JURISDICTION, VENUE AND STATUTORY BASIS
1. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and
1334. This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). Venue is
proper pursuant to 28 U.S.C. 1408 and 1409.
2. The statutory bases for the relief requested herein are sections 105(a) and 362 of
the Bankruptcy Code.
BACKGROUND
3. On the date hereof (the Petition Date), GTAT commenced voluntary cases
under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District
of New Hampshire (the Court). GTAT continues to operate its business and manage its
properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy
Code. No request for the appointment of a trustee or examiner has been made in these chapter
11 cases and no committees have been appointed or designated.
4. GTAT has requested that these chapter 11 cases be consolidated for procedural
purposes only and jointly administered pursuant to Bankruptcy Rule 1015(b).
5. Information regarding GTATs business, capital structure, and the circumstances
leading to these chapter 11 cases is set forth in the Declaration of Daniel W. Squiller in Support
of Chapter 11 Petitions and First-Day Motions (the First Day Declaration), which is
incorporated herein by reference and filed contemporaneously herewith.
GTATs Business
6. GTAT and its non-Debtor affiliates (collectively, the GTAT Group) are leading
manufacturers and suppliers of advanced materials and equipment for the global consumer
electronics, power electronics, solar, and LED industries. The GTAT Group designs and sells
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high-quality sapphire production equipment and materials for a wide variety of domestic and
international markets, including the consumer electronics market. In addition, the GTAT
Groups historical business is based in the solar industry, where it is a leading provider of key
polysilicon and photovoltaic equipment, services, and technologies. The GTAT Group is also in
the process of developing and commercializing additional equipment and products, including an
ion implantation equipment tool and advanced solar cell metallization and interconnect
technology. As of the Petition Date, the GTAT Group employs approximately 1,100 full-time
employees in the United States and abroad, approximately 1,000 of whom work for the Debtors.
The stock of GT is publicly traded under the symbol GTAT.
7. As of June 28, 2014, the GTAT Groups unaudited and consolidated financial
statements reflected assets totaling approximately $1.5 billion and liabilities totaling
approximately $1.3 billion.
RELIEF REQUESTED
8. By this Motion, GTAT seeks entry of Orders authorizing GTAT to establish
procedures as set forth herein (the Procedures) to protect the potential value of GTATs
consolidated net operating loss carryforwards (NOLs) and certain other tax attributes
(collectively with the NOLs, the Tax Attributes) by restricting certain transfers of claims
against and equity interests in GTAT. The proposed Procedures apply to the common stock of
GT and any options or similar interests to acquire such stock (the GT Stock) and certain claims
against GTAT (as defined below, the Claims). The Procedures set out certain restrictions and
notification requirements to be effective nunc pro tunc to the Petition Date.
9. Parties would be notified of the Procedures through (i) publication of a notice,
substantially in the form annexed hereto as Exhibit C (the Interim Procedures Notice), which
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notice shall describe the trading restrictions and notification requirements established in the
Interim Order and the date of the final hearing to determine whether the procedures described
herein will be approved on a final basis and (ii) publication of a final notice of the approved
procedures, substantially in the form annexed hereto as Exhibit D (the Final Procedures
Notice).
Tax Attributes
10. GTAT estimates that, as of December 31, 2014, GTAT will have NOLs of
approximately $152 million and certain other Tax Attributes.
11. GTATs Tax Attributes are valuable assets of its estates because. The Internal
Revenue Code (the Tax Code) generally permits corporations to carry forward NOLs and tax
credits to offset future income, thereby reducing their future tax liability.
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The Tax Attributes
potentially allow GTAT to reduce significantly future federal income tax liability, depending
upon future operating results of GTAT and absent any intervening limitations. Any such savings
could enhance GTATs cash position for the benefit of all parties in interest.
12. GTATs ability to use Tax Attributes to offset future income tax liability is
subject to certain statutory limitations. Specifically, sections 382 and 383 of the Tax Code limit
a corporations use of its NOLs and certain other tax attributes to offset future income after the
corporation experiences an ownership change. For purposes of section 382 of the Tax Code
(Section 382), a change of ownership occurs if the percentage of a loss companys equity held
by one or more 5% shareholders increases by more than 50 percentage points over the lowest
2
See 26 U.S.C. 172.
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percentage of stock owned by those shareholders at any time during a three-year rolling testing
period.
13. A Section 382 change of ownership prior to the effective date of a chapter 11 plan
of reorganization would effectively eliminate GTATs ability to obtain meaningful benefit from
its NOLs, causing a significant loss of value to GTATs estates.
The Safe Harbor
14. The limitations imposed by Section 382 in the context of an ownership change
pursuant to a confirmed plan of reorganization are significantly more relaxed than those
applicable outside chapter 11.
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Under Section 382(l)(5) of the Tax Code, a corporation is not
subject to the annual limitation ordinarily imposed by section 382 with respect to an ownership
change resulting from consummation of a plan of reorganization, so long as the debtors pre-
change shareholders (i.e., persons or entities who owned the debtors stock immediately before
the relevant ownership change) and/or Qualified Creditors (as defined below) emerge from the
reorganization owning at least 50% of the total value and voting power of the debtors stock
immediately after the ownership change (the 382(l)(5) Safe Harbor).
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GTAT could lose the
potential benefit of the 382(l)(5) Safe Harbor as a result of trading and accumulation of GT Stock
or Claims prior to emergence from chapter 11.
15. Consistent with the automatic stay in these cases, GTAT needs the ability to
preclude certain transfers of, and monitor and possibly object to other changes in the ownership
of, GT Stock and Claims, to ensure that a 50% change of ownership does not occur prior to the
3
See 26 U.S.C. 382(1)(5), (6).
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26 U.S.C. 382(1)(5)(A).
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effective date of a chapter 11 plan and that GTAT can rely on the 382(1)(5) Safe Harbor relief if
it is otherwise available. Therefore, it is important that this relief be granted immediately.
16. Under section 382(1)(5)(E) of the Tax Code and the United States Department of
Treasury Regulations (the Treasury Regulations) promulgated thereunder, a creditor whose
claim is exchanged for stock under a plan of reorganization is a Qualified Creditor for Section
382 purposes if such claim constitutes qualified indebtedness.
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Generally, a claim constitutes
qualified indebtedness if it either (i) has been owned by such creditor for 18 or more months
prior to the date of filing of the bankruptcy petition or (ii) arose in the ordinary course of the
debtors business and was at all times beneficially owned by such creditor. Creditors also may
be classified as qualified, despite not satisfying the continuous ownership requirements under
either (i) or (ii) of the preceding sentence, if such creditors meet the criteria set forth in the de
minimis rule described below.
17. Under Treasury Regulations section 1.382-9(d)(3) (the de minimis rule), a
debtor may, for purposes of the 382(l)(5) Safe Harbor, treat indebtedness as always having
been owned by the beneficial owner of the indebtedness immediately before the ownership
change if the beneficial owner is not, immediately after the ownership change, either a 5%
shareholder or an entity through which a 5% shareholder owns an indirect ownership interest in
the debtor. Such a claimholder will always be regarded as a Qualified Creditor under the
382(l)(5) Safe Harbor unless the claimholders particular claims themselves preclude the
claimholders Qualified Creditor status.
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See Treasury Regulations 1.382-9(d)(1).
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18. In furtherance of the automatic stay provisions of section 362 of the Bankruptcy
Code, and pursuant to section 105 of the Bankruptcy Code, GTAT has the authority to preclude
certain transfers of, and monitor and possibly object to other changes in the ownership of, GT
Stock and Claims. This would ensure that a 50% change of ownership does not occur before the
effective date of a chapter 11 plan and to preserve GTATs ability to utilize the 382(l)(5) Safe
Harbor if that proves to be advantageous.
Proposed Trading and Other Disposition Procedures
19. To preserve the potential value of the Tax Attributes and ensure that GTAT
receives the full benefits of the automatic stay, GTAT proposes that the following Procedures
apply to an acquisition or disposition of GT Stock and Claims, effective nunc pro tunc to the
Petition Date:
(a) GT StockOwnership, Acquisition, andDisposition
(i) Notice of Substantial GT Stock Ownership. Any person or entity (as such
latter term is defined in section 1.382-3(a) of the Treasury Regulations,
including persons acting pursuant to a formal or informal understanding
among themselves to make a coordinated acquisition, an Entity) that
beneficially owns, at any time on or after the Petition Date, GT Stock (as
hereinafter defined) in an amount sufficient to qualify such person or
Entity as a Substantial Equityholder (as hereinafter defined) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
counsel for any statutory committee of unsecured creditors appointed in
these cases (the Committee), a Notice of Substantial Stock Ownership (a
Substantial Ownership Notice), in the form attached as Exhibit 1 to the
Orders, which describes specifically and in detail the GT Stock ownership
of such person or Entity, on or before the date that is the later of: (a) ten
(10) business days after the entry of the Interim Order or the Final Order,
as applicable, and (b) ten (10) business days after that person or Entity
qualifies as a Substantial Equityholder. At the election of the Substantial
Equityholder, the Substantial Ownership Notice to be filed with the Court
(but not such notice served upon GTAT, GTATs proposed counsel and
the Committees counsel) may be redacted to exclude the Substantial
Equityholders taxpayer identification number and the number of shares of
GT Stock that the Substantial Equityholder beneficially owns.
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(ii) Acquisition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer of equity securities (including
Options, as hereinafter defined, to acquire such securities) that would
result in an increase in the amount of GT Stock beneficially owned by any
person or Entity that currently is or subsequently becomes a Substantial
Equityholder or that would result in a person or Entity becoming a
Substantial Equityholder (a Proposed Equity Acquisition Transaction),
such person, Entity or Substantial Equityholder (a Proposed Equity
Transferee) shall file with the Court, and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, a Notice of Intent to
Purchase, Acquire, or Otherwise Accumulate GT Stock (an Equity
Acquisition Notice), in the form annexed as Exhibit 2 to the Orders,
which describes specifically and in detail the proposed transaction in
which GT Stock is to be acquired. At the election of the Proposed Equity
Transferee, the Equity Acquisition Notice that is filed with the Court (but
not such notice served upon GTAT, GTATs proposed counsel and the
Committees counsel) may be redacted to exclude the Proposed Equity
Transferees taxpayer identification number and the number of shares of
GT Stock that the Proposed Equity Transferee beneficially owns and
proposes to purchase or otherwise acquire.
(iii) Disposition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer or other disposition of equity
securities (including Options to acquire such securities) that would result
in a decrease in the amount of GT Stock beneficially owned by a
Substantial Equityholder or that would result in a person or Entity ceasing
to be a Substantial Equityholder (a Proposed Equity Disposition
Transaction, and together with a Proposed Equity Acquisition
Transaction, a Proposed Equity Transaction), such person, Entity, or
Substantial Equityholder (a Proposed Equity Transferor) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a Notice of Intent to Sell, Trade, or Otherwise
Transfer GT Stock (an Equity Disposition Notice, and together with an
Equity Acquisition Notice, an Equity Trading Notice), in the form
annexed as Exhibit 3 to the Orders, which describes specifically and in
detail the proposed transaction in which GT Stock would be transferred.
At the election of the Proposed Equity Transferor, the Equity Disposition
Notice that is filed with the Court (but not such notice served upon GTAT,
GTATs proposed counsel and the Committees counsel) may be redacted
to exclude the Proposed Equity Transferors taxpayer identification
number and the number of shares of GT Stock that the Proposed Equity
Transferor beneficially owns and proposes to sell or otherwise transfer.
(iv) Objection Procedures. GTAT and the Committee shall have fifteen (15)
business days after the filing of an Equity Trading Notice (the Equity
Objection Deadline) to file with the Court and serve on a Proposed
Equity Transferee or a Proposed Equity Transferor, as the case may be, an
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objection to any proposed transfer of equity securities (including Options
to acquire such securities) described in such Equity Trading Notice on the
grounds that such transfer may adversely affect GTATs ability to utilize
the Tax Attributes (an Equity Objection) as a result of an ownership
change under Section 382.
(1) If GTAT or the Committee files an Equity Objection by the Equity
Objection Deadline, then the Proposed Equity Transaction shall
not be effective unless approved by a final and nonappealable
order of this Court.
(2) If GTAT or the Committee do not file an Equity Objection by the
Equity Objection Deadline, or if GTAT and the Committee provide
written authorization to the Proposed Equity Transferee or the
Proposed Equity Transferor, as the case may be, approving the
Proposed Equity Transaction, prior to the Equity Objection
Deadline, then such Proposed Equity Transaction may proceed
solely as specifically described in the Equity Trading Notice.
(v) Additional Acquisitions. Any additional transaction within the scope of
paragraphs (a)(ii) or (a)(iii) above must be the subject of an additional
notice as set forth herein with the applicable waiting period.
(vi) Definitions. For purposes of this Motion and the Proposed Order, the
following terms have the following meanings:
(1) Substantial Equityholder. A Substantial Equityholder is any
person or Entity that beneficially owns, or any Entity controlled by
such person or Entity through which such person or Entity
beneficially owns, at least 4.75% of all issued and outstanding
shares of GT Stock.
(2) Beneficial Ownership. Beneficial ownership (or any variation
thereof) of GT Stock and Options to acquire GT Stock shall be
determined in accordance with applicable rules under Section 382,
the Treasury Regulations promulgated thereunder and rulings
issued by the Internal Revenue Service, and, thus, to the extent
provided in those rules, from time to time shall include, without
limitation, (A) direct and indirect ownership (e.g., a holding
company would be considered to beneficially own all stock owned
or acquired by its subsidiaries), (B) ownership by a holders family
members and any group of persons acting pursuant to a formal or
informal understanding to make a coordinated acquisition of stock,
and (C) to the extent provided in Treasury Regulations section
1.382-4, the ownership of an Option to acquire GT Stock.
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(3) Option. An Option to acquire stock includes 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 or otherwise not currently exercisable.
(4) GT Stock. GT Stock shall mean all common stock of GT. For
the avoidance of doubt, by operation of the definition of beneficial
ownership, an owner of an Option to acquire GT Stock may be
treated as the owner of such GT Stock.
(b) TradinginClaimsof GTAT
(i) Notice of Substantial Claimholder Status; Notice of 382(l)(5) Plan.
(1) Any person or Entity (as such term is defined in Treasury
Regulations section 1.382-3(a), including persons acting pursuant
to a formal or informal understanding among themselves to make a
coordinated acquisition) that currently is or becomes a Substantial
Claimholder (as hereinafter defined) shall file with the Court and
serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a notice of such status (a Notice of
Substantial Claimholder Status), in the form annexed to the
Orders as Exhibit 4, within ten (10) business days of the later of
(A) the entry of the Interim Order or the Final Order, as applicable,
and (B) the date on which such person or Entity becomes a
Substantial Claimholder. At the election of the Substantial
Claimholder, the Notice of Substantial Claimholder Status that is
filed with the Court (but not the Notice of Substantial Claimholder
Status that is served upon GTAT, GTATs proposed counsel, and
the Committees counsel) may be redacted to exclude the
Substantial Claimholders taxpayer identification number and the
aggregate dollar amount of Claims (as hereinafter defined) that the
Substantial Claimholder beneficially owns.
(2) Upon filing a plan and disclosure statement that contemplates the
potential utilization of section 382(1)(5) of the Tax Code (the
382(1)(5) Plan), GTAT shall (A) publish (or arrange for
publication of) a notice and provide a written notice to the Notice
Parties and Electing Claimholders (each as hereinafter defined),
disclosing the filing of such 382(1)(5) Plan and the potential
issuance of a Sell-Down Notice (as hereinafter defined) in
connection therewith on the website to be established by the
Debtors claims and noticing agent (the Claims and Noticing
Agent) and in the national edition of The Wall Street Journal (a
Notice of 382(1)(5) Plan), (B) identify the Threshold Amount (as
hereinafter defined) of Claims for status as a Substantial
Claimholder and (C) request from each Electing Claimholder
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(including a Deemed Electing Claimholder (as hereinafter
defined)) updated information regarding the aggregate amount of
Claims beneficially owned by such Electing Claimholder, which
updated information shall be delivered by such Electing
Claimholder to the Debtors within ten (10) business days of receipt
of the request therefor or, in the case of a Deemed Electing
Claimholder, ten (10) business days of the date of the Notice of
382(1)(5) Plan.
For the avoidance of doubt, GTAT shall have no obligation under
the Orders to provide notice to any Deemed Electing Claimholder
of the matters set forth in this Paragraph (b)(i)(2), and the lack of
such notice shall not limit the obligation of a Deemed Electing
Claimholder to comply with the requirements of a Sell-Down
Notice (as hereinafter defined) or affect the application of the
Equity Forfeiture Provision (as hereinafter defined) with respect to
such Deemed Electing Claimholder.
(3) GTAT shall disclose the Threshold Amount in the Notice of
382(1)(5) Plan as of the date of the Notice of 382(1)(5) Plan based
on then available information, including any change in the
Threshold Amount. GTAT may adjust the Threshold Amount
based on the updated information from Electing Claimholders
pursuant to paragraph (b)(i)(2) herein. If the Threshold Amount is
adjusted, GTAT shall provide a notice of such adjusted amount in
the same manner as the Notice of 382(1)(5) Plan and such notice
shall be treated as an amended Notice of 382(1)(5) Plan, thereby
requesting updated information from each Electing Claimholder
and Deemed Electing Claimholder.
(ii) Advance Approval of Acquisition Provisions.
(1) Acquisition of Claims. Except as provided in paragraph (b)(v) and
the Electing Claimholder provisions in paragraph (b)(iii) herein, at
least twenty (20) business days prior to the proposed date of any
transfer of Claims that would result in (A) an increase in the dollar
amount of Claims beneficially owned by a Substantial Claimholder
or (B) any person or Entity becoming a Substantial Claimholder (a
Proposed Claims Acquisition Transaction), such person, Entity,
or Substantial Claimholder (a Proposed Claims Transferee) may
file with the Court and serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a Notice of Request to
Purchase, Acquire, or Otherwise Accumulate a Claim (a Claims
Acquisition Request), in the form annexed to the Orders as
Exhibit 5, which describes in detail the intended acquisition of
Claims, regardless of whether such transfer would be subject to the
filing, notice, and hearing requirements set forth in Bankruptcy
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Rule 3001. At the Proposed Claims Transferees election, the
Claims Acquisition Request that is filed with the Court (but not the
Claims Acquisition Request that is served upon GTAT, GTATs
proposed counsel, and the Committees counsel) may be redacted
to exclude the Proposed Claims Transferees taxpayer
identification number and the aggregate dollar amount of Claims
the Proposed Claims Transferee beneficially owns and proposes to
purchase or otherwise acquire.
(2) Approval Procedures. GTAT may determine, in furtherance of the
purposes of the Procedures and in consultation with counsel for the
Committee, whether or not to approve a Claims Acquisition
Request. If GTAT does not approve a Claims Acquisition Request
in writing within fifteen (15) business days after the Claims
Acquisition Request is filed with the Court, the Claims Acquisition
Request shall be deemed rejected. In the event a Proposed Claims
Transferees request is rejected prior to the date of a Notice of
382(1)(5) Plan, and the Proposed Claims Transferee still desires to
pursue the Proposed Claims Acquisition Transaction, the Proposed
Claims Transferee is subject to, and may avail itself of, the
Electing Claimholders provisions in paragraph (b)(iii) below.
(iii) Electing Claimholders.
(1) Any person or Entity generally may trade freely and make a
market in Claims without having to obtain advance approval as
otherwise required under paragraph (b)(ii) herein (the Advance
Approval of Acquisition Provisions) if such person or Entity
makes an election pursuant to, and abides by the provisions of, this
Paragraph (b)(iii). In order to make such election, a person or
Entity shall file with the Court and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, an election notice,
in the form annexed to the Orders as Exhibit 6 (the Election
Notice), within ten (10) business days after the later of (A) the
date of the first purchase or acquisition of, or other increase in the
beneficial ownership (as hereinafter defined) of, Claims by a
Substantial Claimholder following the entry of the Interim Order
or the Final Order, as applicable, and (B) the date of any purchase
or acquisition of, or other increase in the beneficial ownership of,
Claims that causes such person or Entity to become a Substantial
Claimholder. The filing or service of such Election Notice shall
constitute acceptance of the terms and conditions set forth in the
Election Notice and in this paragraph (b)(iii) by a person or Entity
who files or serves such Election Notice (an Electing
Claimholder). An Electing Claimholder shall remain subject to
the initial notice requirements of paragraph (b)(i) herein.
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(2) To permit reliance by GTAT on Treasury Regulations section
1.382-9(d)(3), any Electing Claimholder shall not participate in
formulating any chapter 11 plan of reorganization of or on behalf
of GTAT (which shall include, without limitation, making any
suggestions or proposals to GTAT or its advisors with regard to
such a plan); provided, however, that the following activities shall
not constitute participation in formulating a plan of reorganization
if; in pursuing such activities, the Electing Claimholder does not
disclose or otherwise make evident (unless compelled to do so by
an order of a court of competent jurisdiction or some other
applicable legal requirement) to GTAT that such Electing
Claimholder has beneficial ownership of Newly Traded Claims (as
hereinafter defined): filing an objection to a proposed disclosure
statement or to confirmation of a proposed plan of reorganization;
voting to accept or reject a proposed plan of reorganization;
reviewing or commenting on a proposed business plan; providing
information on a confidential basis to the attorneys for GTAT;
general membership on an official committee or an ad hoc
committee; or taking any action required by the order of the Court.
(3) Following the issuance of a Notice of 382(1)(5) Plan, if GTAT
determines it to be reasonably necessary to require the sale or
transfer of all or a portion of the beneficial ownership of Claims by
an Electing Claimholder on the basis that such sale or transfer is
appropriate to reasonably ensure that the requirements of section
382(1)(5) of the Tax Code will be satisfied, GTAT may request,
after notice to each Electing Claimholder and the Committee and a
hearing, that the Court enter an order approving the issuance of a
notice (the Sell-Down Notice) to the Electing Claimholder that
such Electing Claimholder must sell, cause to sell, or otherwise
transfer all or a portion of its beneficial ownership of Claims (by
class or other applicable breakdown) in excess of (A) the amount
of Claims beneficially owned by such Electing Claimholder over
(B) the Maximum Amount (as hereinafter defined) for such
Electing Claimholder (such excess amount, an Excess Amount).
If the Court approves GTATs issuance of a Sell-Down Notice, the
Debtors may provide the Sell-Down Notice to the relevant Electing
Claimholders.
Prior to (A) the effective date of the 382(1)(5) Plan or (B) such
earlier date specified by GTAT but no earlier than the day after
the entry of the order confirming the 382(1)(5) Plan (the Sell-
Down Date), each Electing Claimholder shall sell, cause to sell,
or otherwise transfer an amount of the beneficial ownership of
Claims (if any) necessary to comply with the Sell-Down Notice
(the Sell-Down); provided, however, that notwithstanding
anything to the contrary in the Order, no Electing Claimholder
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shall be required to sell, cause to sell, or otherwise transfer any
beneficial ownership of Claims if such sale would result in the
Electing Claimholder having beneficial ownership of an aggregate
amount of Claims (by class or other applicable breakdown) that is
less than such Electing Claimholders Protected Amount (as
hereinafter defined). Each Electing Claimholder shall sell, cause
to sell, or otherwise transfer its beneficial ownership of Claims
subject to the Sell-Down to Permitted Transferees (as hereinafter
defined); provided, however, that such Electing Claimholder shall
not have a reasonable basis to believe that any such Permitted
Transferee would own, immediately after the contemplated
transfer, an Excess Amount of Claims.
An Electing Claimholder subject to the Sell-Down shall,
within five (5) business days after the later of (i) entry of an
order approving the 382(1)(5) Plan, (ii) the Sell-Down Date,
and (iii) such other date specified in the Sell-Down Notice, as
applicable, but before the effective date of the 382(1)(5) Plan,
and as a condition to receiving Affected Securities (as
hereinafter defined), serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a notice substantially in
the form annexed to the Orders as Exhibit 7 that such Electing
Claimholder has complied with the terms and conditions set
forth in this paragraph (b)(iii)(3) and that such Electing
Claimholder does not and will not hold an Excess Amount of
Claims as of the Sell-Down Date and at all times through the
effective date of the 382(1)(5) Plan (the Notice of
Compliance). Any Electing Claimholder who fails to comply
with this provision shall not receive Affected Securities with
respect to any Excess Amount of Claims.
(4) Except to the extent necessary to demonstrate to the Court the need
for the issuance of a Sell-Down Notice, other than information
contained in the Election Notices that is public or in connection
with an audit or other investigation by the IRS or other taxing
authority, GTAT shall keep all Election Notices and any additional
information provided by an Electing Claimholder pursuant to
paragraph (b)(iii)(3) strictly confidential and shall not disclose the
identity of the Electing Claimholder to any other person or Entity;
provided, however, that GTAT may disclose the identity of the
Electing Claimholder to its counsel and professional financial
advisors and/or the counsel and professional financial advisors of
the Committee and of any other person(s) that are subject to a
nondisclosure agreement with GTAT, each of whom shall keep all
such notices strictly confidential, subject to further order of the
Court; and provided, further, that to the extent GTAT reasonably
determines such confidential information is necessary to
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15
demonstrate to the Court the need for the issuance of a Sell-Down
Notice, such confidential information (determined by, among other
things, whether such information was redacted in any public filing)
shall be filed under seal.
(5) Any proposed transfer or acquisition of Claims following the
issuance of a Notice of 382(1)(5) Plan shall be subject to the
Advance Approval of Acquisition Provisions set forth in Paragraph
(b)(ii) herein.
(6) Any Electing Claimholder that violates its obligations under an
Election Notice shall, pursuant to the Order, be precluded from
receiving, directly or indirectly, any consideration consisting of a
beneficial ownership of equity (including Options, as defined in
paragraph (a)(v)(3) herein) of GTAT (or any successor to GTAT,
including as determined for U.S. federal income tax purposes) that
is attributable to the Excess Amount of Claims for such Electing
Claimholder, including any consideration in lieu thereof; provided,
however, that such Electing Claimholder may be entitled to receive
any other consideration to which such Electing Claimholder may
be entitled by virtue of holding Claims (the Equity Forfeiture
Provision). Any purported acquisition of, or other increase in the
beneficial ownership of, equity of GTAT (or any successor) that is
precluded by the Equity Forfeiture Provision will be an acquisition
of Forfeited Equity. Any acquirer of Forfeited Equity shall,
immediately upon becoming aware of such fact, return or cause to
return the Forfeited Equity to GTAT (or any successor to GTAT)
or, if all of the equity consideration properly issued to such
acquirer and all or any portion of such Forfeited Equity shall have
been sold prior to the time such acquirer becomes aware of such
fact, such acquirer shall return or cause to return to GTAT (or any
successor to GTAT) (A) any Forfeited Equity still held by such
acquirer and (B) the proceeds attributable to the sale of Forfeited
Equity, calculated by treating the most recently sold equity as
Forfeited Equity. Any acquirer that receives Forfeited Equity and
deliberately fails to comply with the preceding sentence shall be
subject to such additional sanctions as the Court may determine.
Any Forfeited Equity returned to GTAT shall be distributed
(including a transfer to charity) or extinguished, in GTATs sole
discretion, in furtherance of the 382(1)(5) Plan.
(7) In effecting any sale or other transfer of Claims pursuant to a Sell-
Down Notice, an Electing Claimholder shall, to the extent that it is
reasonably feasible to do so within the normal constraints of the
market in which such sale takes place, notify the acquirer of such
Claims of the existence of the Order and the Equity Forfeiture
Provision (it being understood that, in all cases in which there is
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16
direct communication between a salesperson and a customer,
including, without limitation, communication via telephone, e-
mail, and instant messaging, the existence of the Order and the
Equity Forfeiture Provision shall be included in such salespersons
summary of the transaction).
(iv) Deemed Electing Claimholders; Sanctions.
(1) Notwithstanding the foregoing, effective as of the Petition Date
and until further order of the Court to the contrary, any person or
Entity that (A) is not a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of Claims
that causes such person or Entity to become a Substantial
Claimholder, or (B) is a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of
Claims, shall either comply with the Advance Approval of
Acquisition Provisions pursuant to paragraph (b)(ii) or, to the
extent permitted in Paragraph (b)(iii) herein, file an Election
Notice and thereby become an Electing Claimholder; provided,
however, that any such person or Entity that neither satisfies the
Advance Approval of Acquisition Provisions nor files a timely
Election Notice shall be deemed to have filed an Election Notice
on the Petition Date and to have become an Electing Claimholder
(a Deemed Electing Claimholder) for all purposes of the Order
(other than the issuance of a direct notice to Electing Claimholders,
whenever required). Deemed Electing Claimholders shall be
subject to all the obligations of Electing Claimholders, including,
without limitation, the requirement that Electing Claimholders sell,
cause to sell, or otherwise transfer all or a portion of the beneficial
ownership of Claims pursuant to a Sell-Down Notice or be subject
to the Equity Forfeiture Provision. Nothing in this paragraph
(b)(iv) shall be read to relieve a Deemed Electing Claimholder of
its obligations to notify GTAT of such Deemed Electing
Claimholders status as a Substantial Claimholder. Except as
otherwise provided in the Procedures, all references to an Electing
Claimholder in the Procedures and in the Order shall include a
Deemed Electing Claimholder.
(2) Effective as of the Petition Date, any purchase or acquisition of, or
other increase in the beneficial ownership of, Claims in violation
of the Orders by a Substantial Claimholder shall be subject to such
remedy as the Court may find to be appropriate upon motion by
GTAT, including, without limitation, ordering such noncompliant
Substantial Claimholder to divest itself promptly of any beneficial
ownership of Claims purchased or otherwise acquired in violation
of the Orders and monetary damages for any costs incurred by
GTAT in connection with the enforcement of the Orders. For the
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avoidance of doubt, any sanctions imposed by the Court on a
noncompliant Substantial Claimholder pursuant to this paragraph
(b)(iv)(2) shall be in addition to the consequences of treating such
noncompliant Substantial Claimholder as a Deemed Electing
Claimholder for all purposes of the Orders.
(v) Exception. No person or Entity shall be subject to the Advance Approval
of Acquisition Provisions of paragraph (b)(ii) herein or the Electing
Claimholders provisions of paragraph (b)(iii) herein with respect to any
transfer described in Treasury Regulations section 1.382-9(d)(5)(ii);
provided, however, that such transfer is not for a principal purpose of
obtaining stock in the reorganized GTAT (or any successor) or permitting
the transferee to benefit from the losses of GTAT within the meaning of
Treasury Regulations section 1.382-9(d)(5)(iii); and provided, further, that
any such transferee who becomes a Substantial Claimholder shall file with
the Court, and serve upon GTAT, GTATs proposed counsel and the
Committee counsel, a notice of such status, in the form annexed to the
Orders as Exhibit 4, within ten (10) business days of the later of (i) the
date of the entry of the Interim Order or the Final Order, as applicable, by
the Court and (ii) the date on which such person or Entity becomes a
Substantial Claimholder.
(vi) Definitions. For purposes of this Motion and the Orders, the following
terms have the following meanings:
(1) Applicable Percentage. Applicable Percentage means, if only
one class of Affected Securities is to be issued pursuant to the
terms of the 382(1)(5) Plan and holders within any class of Claims
will receive a pro rata distribution of the Affected Securities,
4.75% of the number of such shares that the Debtors reasonably
estimate will be issued at the effective date of such 382(1)(5) Plan,
as determined for U.S. federal income tax purposes. If more than
one class of the common stock or any other equity securities
(including securities that are treated as equity securities for U.S.
federal income tax purposes) of the reorganized Debtors (or any
successor), including Options (the Affected Securities), is to be
distributed pursuant to the terms of the 382(1)(5) Plan or holders
within a class of Claims may receive a disproportionate
distribution of such securities relative to other holders in the same
class, the Applicable Percentage shall be determined by GTAT in
its reasonable judgment in a manner consistent with the estimated
range of values for the equity to be distributed reflected in the
valuation analysis set forth in the 382(1)(5) Plan and disclosure
statement, and shall be expressed in a manner that makes clear the
number of shares or other interests in each class of Affected
Securities that would constitute the Applicable Percentage.
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(2) Beneficial Ownership. Beneficial ownership of a Claim means:
(x) the beneficial ownership of a Claim as determined in
accordance with applicable rules under Section 382, the Treasury
Regulations promulgated thereunder, and rulings issued by the IRS
(for such purpose, treating a Claim as if it is stock), and, to the
extent provided in those rules from time to time, shall include (A)
direct and indirect ownership (e.g., a holding company would be
considered to beneficially own all Claims owned or acquired by its
subsidiaries), and (B) ownership by a holders family members
and any group of persons acting pursuant to a formal or informal
understanding to make a coordinated acquisition of Claims and/or
stock; and
(y) the beneficial ownership of an Option (irrespective of the
purpose for which such Option was issued, created, or acquired).
(3) Claim. A Claim means any unsecured claim under which any of
the Debtors is the obligor, including the 2017 GT Notes and the
2020 GT Notes. In making this determination, in the case of a
secured claim, that portion of the claim (including such portion
attributable to accrued and unpaid interest) that exceeds the current
fair market value of the security shall be considered an unsecured
Claim. In calculating the amount of any Claims under the
Procedures, any applicable intercreditor agreements, including
subordination agreements, shall be given effect in accordance with
their terms.
(4) Entity. Entity has the meaning set forth in paragraph (b)(i)(l)
above.
(5) Maximum Amount. Maximum Amount means for each person
or Entity and by class or other applicable breakdown of Claims, the
greater of (A) the applicable Threshold Amount and (B) the
Protected Amount (as hereinafter defined) (if any) for such
Electing Claimholder.
(6) Newly Traded Claims. Newly Traded Claims means Claims
(i) with respect to which a person or Entity acquired beneficial
ownership after the date that was eighteen (18) months before the
Petition Date; and (ii) that are not ordinary course claims, within
the meaning of Treasury Regulations section 1.382- 9(d)(2)(iv), of
which the same person or Entity has always had beneficial
ownership.
(7) Option. Option has the meaning given to such term under
Treasury Regulations section 1.382-4(d)(9)(i), with respect to the
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19
acquisition of a Claim or any consideration (including equity)
distributed in respect of any Claim pursuant to a plan of
reorganization or applicable bankruptcy court order.
(8) Permitted Transferee. A Permitted Transferee with respect to an
Electing Claimholder is a person or Entity whose holding of a
Claim would not result in such Electing Claimholder having
beneficial ownership of such Claim.
(9) Protected Amount. Protected Amount means the amount of
Claims (by class or other applicable breakdown) of which a holder
had beneficial ownership on the Petition Date, increased by the
amount of Claims of which such holder acquires, directly or
indirectly, beneficial ownership pursuant to trades entered into
before the Petition Date that had not yet closed as of the Petition
Date minus the amount of Claims of which such holder sells,
directly or indirectly, beneficial ownership pursuant to trades
entered into before the Petition Date that had not yet closed as of
the Petition Date.
(10) Substantial Claimholder. A Substantial Claimholder means any
person or Entity that beneficially owns an aggregate dollar amount
of Claims against the Debtors, or any Entity controlled by such
person or Entity through which such person or Entity beneficially
owns Claims against the Debtors, of more than the Threshold
Amount.
For the avoidance of doubt, Section 382, the Treasury Regulations
promulgated thereunder, and all relevant IRS and judicial authority
shall apply in determining whether the Claims of several persons
and/or Entities must be aggregated when testing for Substantial
Claimholder status, treating Claims as if they were stock.
(11) Threshold Amount. Threshold Amount means, initially,
$20,615,000, which amount may be subsequently increased or
decreased as GTAT may determine to be appropriate in the Notice
of 382(1)(5) Plan or thereafter in compliance with the Orders.
(12) 2017 GT Notes. 2017 GT Notes means the 3.00% Convertible
Senior Notes maturing October 1, 2017.
(13) 2020 GT Notes. 2020 GT Notes means the 3.00% Convertible
Senior Notes maturing December 15, 2020.
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(c) NoncompliancewiththeTradingProcedures
Any purchase, sale, or other transfer of Claims against, or equity securities in, the
Debtors in violation of the Procedures shall be null and void and shall confer no
rights on the transferee.
(d) GTATsRight toWaive
GTAT may waive, in writing, any and all restrictions, stays, and notification
procedures contained in the order approving this Motion entered by the Court.
(e) I nterpretation
The Procedures are intended to preserve, to the maximum extent possible,
GTATs ability to obtain the maximum benefit from its Tax Attributes and,
accordingly, any interpretative question that may arise under these Procedures
shall be resolved in the manner that will reduce the risks that (a) an ownership
change may occur prior to the effective date of the Plan and (b) the Debtors may
not be entitled to employ the 382(l)(5) Safe Harbor.
BASIS FOR RELIEF
The Tax Attributes Are Property of GTATs Estates
and the Automatic Stay Bars Any Equity and Claims Transfers
That Would Diminish or Limit GTATs Interest in its Tax Attributes
20. Section 362(a) of the Bankruptcy Code operates as a stay of, among other things,
any act to obtain possession of property of the estate or of property from the estate or to
exercise control over property of the estate.
6
Accordingly, where a non-debtors action with
respect to an interest that is intertwined with that of a bankrupt debtor would have the legal effect
of diminishing or eliminating property of the bankrupt estate, such action is barred by the
automatic stay.
7
6
11 U.S.C. 362(a)(3).
7
Official Comm. a/Unsecured Creditors v. PSS Steamship Co. (In re Prudential Lines Inc.), 928 F.2d 565,
574 (2d Cir. 1991).
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21
21. NOLs and other tax attributes are property of a debtors estate protected by
section 362 of the Bankruptcy Code.
8
The United States Court of Appeals for the Second
Circuit, in Prudential Lines, affirmed the application of the automatic stay and upheld a
permanent injunction prohibiting a parent corporation from taking a worthless stock deduction
for the stock of its debtor subsidiary because doing so would have adversely affected the
subsidiarys ability to use its NOLs under the special relief provisions of Section 382.
9
The
Second Circuit stated:
Including NOL carryforwards as property of a corporate debtors
estate is consistent with Congress intention to bring anything of
value that the debtors have into the estate. Moreover, a
paramount and important goal of Chapter 11 is the rehabilitation
of the debtor by offering breathing space and an opportunity to
rehabilitate its business and eventually generate revenue.
Including the right to a NOL carryforward as property of [the
debtors] bankruptcy estate furthers the purpose of facilitating the
reorganization of [the debtor].
10
22. In Prudential Lines, the Second Circuit further held that the parent corporations
attempt to claim a worthless stock deduction in stock of its debtor subsidiary effectively would
8
See Nisselson v. Drew Indus., Inc. (In re White Metal Rolling & Stamping Corp.), 222 B.R. 417,424
(Bankr. S.D.N.Y. 1998) (It is beyond peradventure that NOL carrybacks and carryovers are property of
the estate of the loss corporation that generated them.), and In re Cumberland Farms, 162 B.R. 62 (Bankr.
D. Mass. 1993).
9
928 F.2d 565.
10
Id. at 573 (internal citations omitted); see also In re Fruehauf Trailer Corp., 444 F.3d 203 (3d Cir. 2006)
(Property of the estate includes all interests, such as ... contingent interests and future interests, whether
or not transferable by the debtor.) (quoting Prudential Lines, 928 F.2d at 572); Gibson v. United States
(In re Russell), 927 F.2d 413,417 (8th Cir. 1991) (concluding the right to carry forward the [debtors]
NOLs was a property interest of the estate); In re Delta Air Lines, Inc., Case No. 05-17923 (PCB)
(Bankr. S.D.N.Y. Sept. 16, 2005) (finding that tax credit carryforwards were property of the debtors
estates and approving notification procedures and restrictions on certain transfers of claims against and
interests in the debtors to protect, among other things, $346 million in non-NOL tax credits); In re Enron
Corp., Case No. 01-16034 (Bankr. S.D.N.Y. 2003) (finding that the debtors NOL carryforwards are
property of the debtors estates and are protected by the automatic stay prescribed in section 362 of the
Bankruptcy Code).
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eliminate the value of the debtors NOLs, and thus, would be an act to exercise control over
estate property in violation of the automatic stay extant under section 362 of the Bankruptcy
Code.
11
There, the parent corporations interest in its worthless stock deduction was intertwined
with the debtors NOLs. The Second Circuit determined that, if the parent were permitted to
take a worthless stock deduction, it would have an adverse impact on the debtor subsidiarys
ability to carry forward its NOLs. Therefore, the Second Circuit noted that, despite the fact that
the [parent corporations] action is not directed specifically at [the debtor subsidiary], it is barred
by the automatic stay as an attempt to exercise control over property of the estate.
12
23. The Second Circuit also held that the permanent injunction was supported by the
courts equitable powers pursuant to section 105(a) of the Bankruptcy Code, which authorizes
the court to issue any order, process, or judgment that is necessary or appropriate to carry out
the provisions of [title 11].
13
Because the NOLs were valuable assets of the debtor, the Second
Circuit refused to disturb the bankruptcy courts determination that elimination of the right to
apply its NOLs to offset income on future tax returns would impede the debtors
reorganization.
14
24. Similarly, in In re Phar-Mor, Inc., the debtors moved to prohibit the transfer of
their stock that could have an adverse effect on their ability to use NOLs.
15
The court held that
the NOLs qualified as property of the estate and issued an injunctive order and enforced the
11
Prudential Lines, 928
12
Id.
13
Id.; see also 11 U.S.C. 105(a).
14
Prudential Lines, 928 F.2d at 574.
15
In re Phar-Mor, Inc., 152 B.R. 924 (Bankr. N.D. Ohio 1993)
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23
automatic stay, thereby protecting the assets of the debtors estates. Significantly, the court
granted the relief requested even though the stockholders did not state any intent to sell their
stock and even though the debtors did not show that a sale was pending that would trigger the
prescribed ownership change under Section 382.
16
Despite the ethereal nature of the situation,
the court observed that [w]hat is certain is that the NOL has a potential value, as yet
undetermined, which will be of benefit to creditors and will assist debtors in their reorganization
process. This asset is entitled to protection while debtors move forward toward
reorganization.
17
The Phar-Mor court also concluded that, because the debtors were seeking to
enforce the stay, they did not have to meet the more stringent requirements for preliminary
injunctive relief:
The requirements for enforcing an automatic stay under 11 U.S.C.
362(a)(3) do not involve such factors as lack of an adequate
remedy at law, or irreparable injury, or loss and a likelihood of
success on the merits. The key elements for a stay . . . are the
existence of property of the estate and the enjoining of all efforts
by others to obtain possession or control of property of the estate.
18
25. Restrictions on equity and claims trading to protect a debtor against the possible
loss of its NOLs are regularly applied by courts.
19
These cases establish that it is well settled that
16
Id. at 927.
17
Id. (emphasis added).
18
Id. at 926 (quoting In re Golden Distribs., Inc., 122 B.R. 15, 19 (Bankr. S.D.N.Y. 1990)).
19
See, e.g., In re Sorenson Commcns, Inc., Case No. 14-10454 (BLS) (Bankr. D. Del. Mar. 26, 2014); In re
Fisker Auto. Holdings, Inc., Case No. 13-13087 (KG) (Bankr. D. Del. Dec. 13, 2013); In re Exide Techs.,
Case No. 13-11482 (KJC) (Bankr. D. Del. July 11, 2013); In re Furniture Brands International, Inc., Case
No. 13-12329 (CSS) (Bankr. D. Del. Oct. 1, 2013); In re Dex One Corp., Case No. 13-10533 (KG) (Bankr.
D. Del. Apr. 10, 2013); In re Educ. Holdings 1, Inc. (f/k/a The Princeton Review, Inc.), Case No. 13-10101
(BLS) (Bankr. D. Del. Feb. 7, 2013); In re Overseas Shipholding Grp., Inc., Case No. 12-20000 (PJW)
(Bankr. D. Del. Dec. 7, 2012); In re The PMI Group, Inc., Case No. 11-13730 (BLS) (Bankr. D. Del Feb. 8,
2012); In re Digital Domain Media Group, Inc., Case No. 12-12568 (BLS) (Bankr. D. Del. Oct. 22, 2012);
In re Lear Corporation, Case No. 09-14326 (ALG) (Bankr. S.D.N.Y. July 31, 2009); In re Source Interlink
(continued...)
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the automatic stay under section 362(a)(3) of the Bankruptcy Code stays actions that would
adversely affect a debtors tax attributes. These actions, including the trading of stock in a
debtor, may be determined to be null and void ab initio.
The Proposed Restrictions and Procedures Are Necessary
and in the Best Interests of GTAT, Its Estates, and Creditors
26. The Procedures are necessary to preserve GTATs ability to most effectively use
its Tax Attributes, which are valuable assets of GTATs estates, while providing latitude for
trading in GT Stock and Claims below specified levels and trading in Claims above specified
levels subject to the possible requirement to Sell-Down. GTATs ability to meet the
requirements of the tax laws to preserve its Tax Attributes may be seriously jeopardized unless
procedures are established to ensure that trading in GT Stock and Claims are either precluded or
closely monitored and made subject to Court approval. However, GTAT recognizes that the
trading in GT Stock and Claims below specified levels does not, at this time, pose a serious risk
to the Tax Attributes, and thus the restrictions and procedures set forth above preserve GTATs
ability to waive in writing, in appropriate circumstances, any and all restrictions, stays, and
notification procedures contained in this Motion.
27. Absent a change in ownership under Section 382 prior to the effective date of a
plan of reorganization, GTAT expects to be able to use a portion of the Tax Attributes to offset
future income realized both during and following the pendency of the bankruptcy case and to
(...continued)
Companies, Inc., Case No. 09-11424 (KG) (Bankr. D. Del. May 27, 2009); In re NewPage Corporation,
Case No. 11-12804 (KG) (Bankr. D. Del. Oct. 4, 2011); In re Pacific Energy Resources LTC, Case No. 09-
10785 (KJC) (Bankr. D. Del. Mar. 10, 2009); In re Constar International, Inc., Case No. 08-13432
(PJW)(Bankr. D. Del. Jan. 22, 2009); In re FLYi, Inc., Case No. 05-20011 (MFW) (Bankr. D. Del. Dec. 22,
2005). Because of the voluminous nature of the unreported orders cited herein, they are not annexed to this
Motion. Copies of the order are available upon request of GTATs proposed undersigned counsel,
including at the hearing to consider this Motion.
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eliminate future income tax liability attributable to that income. Thus, the Tax Attributes are
valuable assets of GTATs estates and are entitled to the protection of the automatic stay.
Furthermore, because maintenance of GTATs Tax Attributes may enhance GTATs prospects
for a successful emergence from chapter 11, the exercise of this Courts equitable powers under
section 105(a) is appropriate. Although an ownership change upon an emergence from chapter
11 would also subject the remaining Tax Attributes to limitation, more liberal provisions apply in
that instance.
28. The relief requested herein is narrowly tailored to permit certain stock and Claims
trading to continue, subject only to Bankruptcy Rule 3001(e) and applicable securities, corporate,
and other laws. GTAT is here seeking only to enforce the provisions of the automatic stay in
connection with certain types of stock and Claims trading that pose a serious risk under the
Section 382 ownership change tests and to monitor (with limited circumspections) other types of
trading that potentially pose such a risk. The proposed restrictions on trading are crucial because
once an interest is transferred, the transaction arguably may not be reversible for tax purposes,
though it should be null and void under Bankruptcy Code section 362. Accordingly, once a
transfer acts to limit GTATs ability to use its Tax Attributes under Section 382, such ability may
be permanently lost. The relief requested is, therefore, critical to prevent an irrevocable loss of
GTATs use of its Tax Attributes.
29. It is in the best interests of GTAT, its estates, its creditors, and its stakeholders to
restrict stock and Claims trading that could result in a change of ownership under section 382 of
the Tax Code before the effective date of a plan of reorganization. If such a change of ownership
occurs, the valuation for determining the annual amount of useable NOLs would be very low.
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30. In addition, GTAT believes that the 382(l)(5) Safe Harbor described above may
create significant incremental benefit to GTAT following emergence from bankruptcy. Although
there can be no assurance that the 382(1)(5) Safe Harbor ultimately will be available to GTAT, it
is important that GTAT preserve the ability to take advantage of the 382(l)(5) Safe Harbor.
Because the determination of whether a creditor is qualified depends on whether such creditor
has held its Claim until the effective date of the plan of reorganization, transfers of Claims by
creditors before such date pose a threat to GTATs ability to satisfy the requirements of the
382(l)(5) Safe Harbor. Likewise, because transfers of GT Stock by or into the hands of 5%
shareholders before the effective date of the plan of reorganization could trigger an ownership
change that would impose a severe annual limitation on GTATs use of the Tax Attributes (even
if GTAT later satisfied the requirements of the 382(1)(5) Safe Harbor in connection with a
second ownership change resulting from a plan of reorganization), such pre-plan transfers pose a
threat to the post-reorganization value of the Tax Attributes. The requested relief will ensure that
GTAT has maximum flexibility to implement a plan that meets the requirements of the 382(1)(5)
Safe Harbor and thus preserves the Tax Attributes to the fullest extent.
31. Even if it is ultimately determined that the 382(1)(5) Safe Harbor is unavailable to
GTAT (or otherwise offers minimal or no incremental benefit), it is in the best interests of GTAT
and its estates to restrict equity trading that could result in an ownership change prior to
consummation of a plan of reorganization for at least two additional reasons. First, an ownership
change must occur pursuant to consummation of the plan in order for GTAT to qualify for the
other Section 382 bankruptcy relief provision- the favorable valuation rule of section 382(1)(6)
of the Tax Code. Specifically, section 382(1)(6) provides that if a corporation undergoes an
ownership change pursuant to a plan of reorganization and section 382(1)(5) does not apply
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27
(either because the corporation elects out of that provision or because its requirements are not
satisfied), then the appropriate value of GTAT for purposes of calculating the section 382
limitation shall reflect the increase in value of GTAT resulting from any surrender or
cancellation of creditors claims in the transaction. Generally, under Section 382, the taxable
income of a loss corporation available for offset by pre-change of ownership Tax Attributes is
annually limited to an amount equal to the long-term tax-exempt bond rate times the value of the
loss companys stock immediately prior to the time of the ownership change. Thus, assuming
the value of GTATs equity increases as a result of the plan of reorganization, section 382(1)(6)
will provide for a higher annual limitation than would result under the general rules of Section
382, and would preserve GTATs ability to use a greater portion of the Tax Attributes, to the
extent otherwise available, to offset any post-change income. Second, preventing an ownership
change prior to the effective date of a plan of reorganization also will benefit GTATs estates by
ensuring that GTAT will be able to make maximum use of the Tax Attributes to offset any
income arising prior to the effective date of the plan of reorganization, which income, may be
significant in amount.
20
32. Following entry of the Proposed Order, GTAT proposes to serve the Procedures
Notice, describing the authorized trading restrictions and notification requirements on: (a) the
Office of the United States Trustee for Region 1, 1000 Elm Street, Suite 605 Manchester, NH
03101, Attn: Geraldine L. Karonis; (b) the creditors holding the 30 largest unsecured claims
against GTATs estates (on a consolidated basis); (c) the indenture trustee for the Debtors
(i) 3.00% Convertible Senior Notes due 2017, and (ii) 3.00% Convertible Senior Notes due 2020
20
26 U.S.C. 382(a).
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(collectively, the GT Notes), U.S. Bank National Association (U.S. Bank), 60 Livingston
Avenue, St. Paul, MN 55107, Attn: Hazrat R. Haniff; (d) U.S. Securities and Exchange
Commission, 100 F Street, NE, Washington, DC 20549 (the SEC); (e) any transfer agents for
GT Stock; (f) those holders of GT Stock who have filed Forms 13D and 13G with the SEC; and
(g) those parties who have formally filed requests for notice in these chapter 11 cases pursuant to
Bankruptcy Rule 2002 (collectively, the Notice Parties).
33. GTAT is requesting that upon receipt of the Procedures Notice, any transfer agent
shall send the Procedures Notice to all holders of GT Stock registered with the transfer agent.
Any registered holder shall, in turn, provide the Procedures Notice to any holder for whose
account the registered holder holds GT Stock. Any holder shall, in turn, provide the Procedures
Notice to any person or entity for whom the holder holds GT Stock. Similarly, GTAT is
requesting that upon receipt of the Procedures Notice, U.S. Bank, as Indenture Trustee of the GT
Notes shall send the Procedures Notice to all holders of GT Notes. The Procedures Notice will
be posted on the website established by GTATs claims agent, Kurtzman Carson Consultants
LLC, at http://www.kccllc.net/GTAT (the Website). The above measures constitute a
sufficient and cost-effective way of providing notice of the Procedures.
NOTICE
34. Notice of this Motion has been provided by email, facsimile, or overnight courier
to: (a) the Office of the United States Trustee for Region 1, 1000 Elm Street, Suite 605
Manchester, NH 03101, Attn: Geraldine L. Karonis; (b) the creditors holding the 30 largest
unsecured claims against GTATs estates (on a consolidated basis); (c) the indenture trustee for
the Debtors (i) 3.00% Convertible Senior Notes due 2017, and (ii) 3.00% Convertible Senior
Notes due 2020, U.S. Bank National Association, 60 Livingston Avenue, St. Paul, MN 55107,
Attn: Hazrat R. Haniff; (d) the Internal Revenue Service, 1000 Elm St., 9th Floor Manchester,
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29
NH 03101, Attn: District and Regional Directors; (e) U.S. Securities and Exchange Commission,
100 F Street, NE, Washington, DC 20549; (f) Apple Inc., 1 Infinite Loop, Cupertino, CA 95014,
Attn: Jessica L. Fink, Senior Restructuring Counsel; and (g) those parties who have formally
filed requests for notice in these chapter 11 cases pursuant to Bankruptcy Rule 2002.
NO PRIOR REQUEST
35. No previous request for the relief sought herein has been made by GTAT to this
or any other court.
WAIVER OF MEMORANDUM OF LAW
36. GTAT requests that the Court waive and dispense with the requirement set forth
in Rule 7102(b)(2) of the Local Bankruptcy Rules for the United States Bankruptcy Court for the
District of New Hampshire (LBR) that any motion filed shall have an accompanying
memorandum of law. The legal authorities upon which GTAT relies are set forth in the Motion.
Accordingly, GTAT submits that a waiver of the LBR 7102(b)(2) requirement is appropriate
under these circumstances.
[remainder of page intentionally left blank]
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30
WHEREFORE, GTAT respectfully requests that the Court enter an order, substantially in
the form attached hereto, granting the relief requested herein and granting GTAT such other and
further relief as is just and proper.
Dated: October 6, 2014
Manchester, NH
/s/ Daniel W. Sklar____________________________
Daniel W. Sklar, Esq.
Holly J. Barcroft, Esq.
NIXON PEABODY LLP
900 Elm Street
Manchester, NH 03101-2031
Telephone: (603) 628-4000
Facsimile: (603) 628-4040
- and -
Luc A. Despins, Esq.
Andrew V. Tenzer, Esq.
James T. Grogan, Esq.
PAUL HASTINGS LLP
Park Avenue Tower
75 East 55th Street, First Floor
New York, New York 10022
Telephone: (212) 318-6000
Facsimile: (212) 319-4090
Proposed Co-Counsel for the Debtors and Debtors in
Possession
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EXHIBIT A
PROPOSED INTERIM ORDER
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
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I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
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x
:
:
:
:
:
:
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x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
RE: Docket Nos. ___
INTERIM ORDER, PURSUANT TO BANKRUPTCY CODE SECTIONS 105(a) AND
362, ESTABLISHING NOTIFICATION PROCEDURES AND APPROVING
RESTRICTIONS ON CERTAIN TRANSFERS OF CLAIMS AGAINST AND EQUITY
INTERESTS IN THE DEBTORS NUNC PROTUNC TO THE PETITION DATE
Upon the motion (the Motion)
2
of GT Advanced Technologies Inc. (GT) and its
affiliated debtors as debtors in possession (collectively, GTAT or the Debtors) for entry of
an interim order (the Interim Order) pursuant to sections 105 and 362 of the Bankruptcy Code
establishing notification procedures and approving restrictions of certain transfers of claims
against and equity interests in GTAT, all as more fully set forth in the Motion; and this Court
having jurisdiction to consider the Motion and the relief requested therein in accordance with 28
U.S.C. 157 and 1334; and consideration of the Motion and the relief requested therein being a
core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper before this Court
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Motion.
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2
pursuant to 28 U.S.C. 1408 and 1409; and due and proper notice of the Motion having been
provided under the particular circumstances, and it appearing that no other or further notice need
be provided; and this Court having determined that the legal and factual bases set forth in the
Motion establish just cause for the relief granted herein; and upon consideration of the First Day
Declaration; and it appearing that the relief requested in the Motion is in the best interests of
GTAT, its estates, and creditors; and upon all of the proceedings had before this Court and after
due deliberation and sufficient cause appearing therefor, it is hereby FOUND AND
DETERMINED THAT:
A. GTATS net operating loss carryforwards (NOLs) and certain other tax
attributes (together with the NOLs, the Tax Attributes), are property of GTATS estates and
are protected by section 362(a) of the Bankruptcy Code.
B. Unrestricted trading in common stock of GT (GT Stock) before GTATs
emergence from chapter 11 could severely limit GTATs ability to use the Tax Attributes for
purposes of the Internal Revenue Code of 1986, as amended (the Tax Code), as set forth in the
Motion;
C. The notification procedures and restrictions on certain transfers of GT Stock and
Claims (as defined below) are necessary and proper to preserve the Tax Attributes and are
therefore in the best interests of GTAT, its estates, and its creditors; and
D. The relief requested in the Motion is authorized on an interim basis under sections
105(a) and 362 of the Bankruptcy Code.
IT IS HEREBY ORDERED THAT:
1. The Motion is GRANTED on an interim basis.
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2. The provisions of Interim Order shall be effective, nunc pro tunc, to the Petition
Date.
3. Until further order of this Court to the contrary, any acquisition, disposition or
other transfer in violation of the restrictions set forth herein shall be null and void ab initio as an
act in violation of the automatic stay prescribed in section 362 of the Bankruptcy Code and
pursuant to this Courts equitable power prescribed in section 105(a) of the Bankruptcy Code.
4. The following procedures and restrictions shall apply to (a) trading in GT Stock,
and (b) trading in Claims against GTAT, and are approved:
(a) GT StockOwnership, Acquisition, andDisposition
(i) Notice of Substantial GT Stock Ownership. Any person or entity (as such
latter term is defined in section 1.382-3(a) of the Treasury Regulations,
including persons acting pursuant to a formal or informal understanding
among themselves to make a coordinated acquisition, an Entity) that
beneficially owns, at any time on or after the Petition Date, GT Stock (as
hereinafter defined) in an amount sufficient to qualify such person or
Entity as a Substantial Equityholder (as hereinafter defined) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
counsel for any statutory committee of unsecured creditors appointed in
these cases (the Committee), a Notice of Substantial Stock Ownership (a
Substantial Ownership Notice), in the form attached as Exhibit 1 to the
Orders, which describes specifically and in detail the GT Stock ownership
of such person or Entity, on or before the date that is the later of: (a) ten
(10) business days after the entry of the Interim Order or the Final Order,
as applicable, and (b) ten (10) business days after that person or Entity
qualifies as a Substantial Equityholder. At the election of the Substantial
Equityholder, the Substantial Ownership Notice to be filed with the Court
(but not such notice served upon GTAT, GTATs proposed counsel and
the Committees counsel) may be redacted to exclude the Substantial
Equity Holders taxpayer identification number and the number of shares
of GT Stock that the Substantial Equityholder beneficially owns.
(ii) Acquisition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer of equity securities (including
Options, as hereinafter defined, to acquire such securities) that would
result in an increase in the amount of GT Stock beneficially owned by any
person or Entity that currently is or subsequently becomes a Substantial
Equityholder or that would result in a person or Entity becoming a
Substantial Equityholder (a Proposed Equity Acquisition Transaction),
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such person, Entity or Substantial Equityholder (a Proposed Equity
Transferee) shall file with the Court, and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, a Notice of Intent to
Purchase, Acquire, or Otherwise Accumulate GT Stock (an Equity
Acquisition Notice), in the form annexed as Exhibit 2 to the Orders,
which describes specifically and in detail the proposed transaction in
which GT Stock is to be acquired. At the election of the Proposed Equity
Transferee, the Equity Acquisition Notice that is filed with the Court (but
not such notice served upon GTAT, GTATs proposed counsel and the
Committees counsel) may be redacted to exclude the Proposed Equity
Transferees taxpayer identification number and the number of shares of
GT Stock that the Proposed Equity Transferee beneficially owns and
proposes to purchase or otherwise acquire.
(iii) Disposition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer or other disposition of equity
securities (including Options to acquire such securities) that would result
in a decrease in the amount of GT Stock beneficially owned by a
Substantial Equityholder or that would result in a person or Entity ceasing
to be a Substantial Equityholder (a Proposed Equity Disposition
Transaction, and together with a Proposed Equity Acquisition
Transaction, a Proposed Equity Transaction), such person, Entity, or
Substantial Equityholder (a Proposed Equity Transferor) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a Notice of Intent to Sell, Trade, or Otherwise
Transfer GT Stock (an Equity Disposition Notice, and together with an
Equity Acquisition Notice, an Equity Trading Notice), in the form
annexed as Exhibit 3 to the Orders, which describes specifically and in
detail the proposed transaction in which GT Stock would be transferred.
At the election of the Proposed Equity Transferor, the Equity Disposition
Notice that is filed with the Court (but not such notice served upon GTAT,
GTATs proposed counsel and the Committees counsel) may be redacted
to exclude the Proposed Equity Transferors taxpayer identification
number and the number of shares of GT Stock that the Proposed Equity
Transferor beneficially owns and proposes to sell or otherwise transfer.
(iv) Objection Procedures. GTAT and the Committee shall have fifteen (15)
business days after the filing of an Equity Trading Notice (the Equity
Objection Deadline) to file with the Court and serve on a Proposed
Equity Transferee or a Proposed Equity Transferor, as the case may be, an
objection to any proposed transfer of equity securities (including Options
to acquire such securities) described in such Equity Trading Notice on the
grounds that such transfer may adversely affect GTATs ability to utilize
the Tax Attributes (an Equity Objection) as a result of an ownership
change under Section 382.
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(1) If GTAT or the Committee files an Equity Objection by the Equity
Objection Deadline, then the Proposed Equity Transaction shall
not be effective unless approved by a final and nonappealable
order of this Court.
(2) If GTAT or the Committee do not file an Equity Objection by the
Equity Objection Deadline, or if GTAT and the Committee provide
written authorization to the Proposed Equity Transferee or the
Proposed Equity Transferor, as the case may be, approving the
Proposed Equity Transaction, prior to the Equity Objection
Deadline, then such Proposed Equity Transaction may proceed
solely as specifically described in the Equity Trading Notice.
(v) Additional Acquisitions. Any additional transaction within the scope of
paragraphs (a)(ii) or (a)(iii) above must be the subject of an additional
notice as set forth herein with the applicable waiting period.
(vi) Definitions. For purposes of this Motion and the Proposed Order, the
following terms have the following meanings:
(1) Substantial Equityholder. A Substantial Equityholder is any
person or Entity that beneficially owns, or any Entity controlled by
such person or Entity through which such person or Entity
beneficially owns, at least 4.75% of all issued and outstanding
shares of GT Stock.
(2) Beneficial Ownership. Beneficial ownership (or any variation
thereof of GT Stock and Options to acquire GT Stock) shall be
determined in accordance with applicable rules under Section 382,
the Treasury Regulations promulgated thereunder and rulings
issued by the Internal Revenue Service, and, thus, to the extent
provided in those rules, from time to time shall include, without
limitation, (A) direct and indirect ownership (e.g., a holding
company would be considered to beneficially own all stock owned
or acquired by its subsidiaries), (B) ownership by a holders family
members and any group of persons acting pursuant to a formal or
informal understanding to make a coordinated acquisition of stock,
and (C) to the extent provided in Treasury Regulations section
1.382-4, the ownership of an Option to acquire GT Stock.
(3) Option. An Option to acquire stock includes 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 or otherwise not currently exercisable.
(4) GT Stock. GT Stock shall mean all common stock of GT. For
the avoidance of doubt, by operation of the definition of beneficial
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ownership, an owner of an Option to acquire GT Stock may be
treated as the owner of such GT Stock.
(b) TradinginClaimsof GTAT
(i) Notice of Substantial Claimholder Status; Notice of 382(l)(5) Plan.
(1) Any person or Entity (as such term is defined in Treasury
Regulations section 1.382-3(a), including persons acting pursuant
to a formal or informal understanding among themselves to make a
coordinated acquisition) that currently is or becomes a Substantial
Claimholder (as hereinafter defined) shall file with the Court and
serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a notice of such status (a Notice of
Substantial Claimholder Status), in the form annexed to the
Orders as Exhibit 4, within ten (10) business days of the later of
(A) the entry of the Interim Order or the Final Order, as applicable,
and (B) the date on which such person or Entity becomes a
Substantial Claimholder. At the election of the Substantial
Claimholder, the Notice of Substantial Claimholder Status that is
filed with the Court (but not the Notice of Substantial Claimholder
Status that is served upon GTAT, GTATs proposed counsel, and
the Committees counsel) may be redacted to exclude the
Substantial Claimholders taxpayer identification number and the
aggregate dollar amount of Claims (as hereinafter defined) that the
Substantial Claimholder beneficially owns.
(2) Upon filing a plan and disclosure statement that contemplates the
potential utilization of section 382(1)(5) of the Tax Code (the
382(1)(5) Plan), GTAT shall (A) publish (or arrange for
publication of) a notice and provide a written notice to the Notice
Parties and Electing Claimholders (each as hereinafter defined),
disclosing the filing of such 382(1)(5) Plan and the potential
issuance of a Sell-Down Notice (as hereinafter defined) in
connection therewith on the website to be established by the
Debtors claims and noticing agent (the Claims and Noticing
Agent) and in the national edition of The Wall Street Journal (a
Notice of 382(1)(5) Plan), (B) identify the Threshold Amount
(as hereinafter defined) of Claims for status as a Substantial
Claimholder and (C) request from each Electing Claimholder
(including a Deemed Electing Claimholder (as hereinafter
defined)) updated information regarding the aggregate amount of
Claims beneficially owned by such Electing Claimholder, which
updated information shall be delivered by such Electing
Claimholder to the Debtors within ten (10) business days of receipt
of the request therefor or, in the case of a Deemed Electing
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Claimholder, ten (10) business days of the date of the Notice of
382(1)(5) Plan.
For the avoidance of doubt, GTAT shall have no obligation under
the Orders to provide notice to any Deemed Electing Claimholder
of the matters set forth in this Paragraph (b)(i)(2), and the lack of
such notice shall not limit the obligation of a Deemed Electing
Claimholder to comply with the requirements of a Sell-Down
Notice (as hereinafter defined) or affect the application of the
Equity Forfeiture Provision (as hereinafter defined) with respect to
such Deemed Electing Claimholder.
(3) GTAT shall disclose the Threshold Amount in the Notice of
382(1)(5) Plan as of the date of the Notice of 382(1)(5) Plan based
on then available information, including any change in the
Threshold Amount. GTAT may adjust the Threshold Amount
based on the updated information from Electing Claimholders
pursuant to paragraph (b)(i)(2) herein. If the Threshold Amount is
adjusted, GTAT shall provide a notice of such adjusted amount in
the same manner as the Notice of 382(1)(5) Plan and such notice
shall be treated as an amended Notice of 382(1)(5) Plan, thereby
requesting updated information from each Electing Claimholder
and Deemed Electing Claimholder.
(ii) Advance Approval of Acquisition Provisions.
(1) Acquisition of Claims. Except as provided in paragraph (b)(v) and
the Electing Claimholder provisions in paragraph (b)(iii) herein, at
least twenty (20) business days prior to the proposed date of any
transfer of Claims that would result in (A) an increase in the dollar
amount of Claims beneficially owned by a Substantial Claimholder
or (B) any person or Entity becoming a Substantial Claimholder (a
Proposed Claims Acquisition Transaction), such person, Entity,
or Substantial Claimholder (a Proposed Claims Transferee) may
file with the Court and serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a Notice of Request to
Purchase, Acquire, or Otherwise Accumulate a Claim (a Claims
Acquisition Request), in the form annexed to the Orders as
Exhibit 5, which describes in detail the intended acquisition of
Claims, regardless of whether such transfer would be subject to the
filing, notice, and hearing requirements set forth in Bankruptcy
Rule 3001. At the Proposed Claims Transferees election, the
Claims Acquisition Request that is filed with the Court (but not the
Claims Acquisition Request that is served upon GTAT, GTATs
proposed counsel, and the Committees counsel) may be redacted
to exclude the Proposed Claims Transferees taxpayer
identification number and the aggregate dollar amount of Claims
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the Proposed Claims Transferee beneficially owns and proposes to
purchase or otherwise acquire.
(2) Approval Procedures. GTAT may determine, in furtherance of the
purposes of the Procedures and in consultation with counsel for the
Committee, whether or not to approve a Claims Acquisition
Request. If GTAT does not approve a Claims Acquisition Request
in writing within fifteen (15) business days after the Claims
Acquisition Request is filed with the Court, the Claims Acquisition
Request shall be deemed rejected. In the event a Proposed Claims
Transferees request is rejected prior to the date of a Notice of
382(1)(5) Plan, and the Proposed Claims Transferee still desires to
pursue the Proposed Claims Acquisition Transaction, the Proposed
Claims Transferee is subject to, and may avail itself of, the
Electing Claimholders provisions in paragraph (b)(iii) below.
(iii) Electing Claimholders.
(1) Any person or Entity generally may trade freely and make a
market in Claims without having to obtain advance approval as
otherwise required under paragraph (b)(ii) herein (the Advance
Approval of Acquisition Provisions) if such person or Entity
makes an election pursuant to, and abides by the provisions of, this
Paragraph (b)(iii). In order to make such election, a person or
Entity shall file with the Court and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, an election notice,
in the form annexed to the Orders as Exhibit 6 (the Election
Notice), within ten (10) business days after the later of (A) the
date of the first purchase or acquisition of, or other increase in the
beneficial ownership (as hereinafter defined) of, Claims by a
Substantial Claimholder following the entry of the Interim Order
or the Final Order, as applicable, and (B) the date of any purchase
or acquisition of, or other increase in the beneficial ownership of,
Claims that causes such person or Entity to become a Substantial
Claimholder. The filing or service of such Election Notice shall
constitute acceptance of the terms and conditions set forth in the
Election Notice and in this paragraph (b)(iii) by a person or Entity
who files or serves such Election Notice (an Electing
Claimholder). An Electing Claimholder shall remain subject to
the initial notice requirements of paragraph (b)(i) herein.
(2) To permit reliance by GTAT on Treasury Regulations section
1.382-9(d)(3), any Electing Claimholder shall not participate in
formulating any chapter 11 plan of reorganization of or on behalf
of GTAT (which shall include, without limitation, making any
suggestions or proposals to GTAT or its advisors with regard to
such a plan); provided, however, that the following activities shall
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9
not constitute participation in formulating a plan of reorganization
if; in pursuing such activities, the Electing Claimholder does not
disclose or otherwise make evident (unless compelled to do so by
an order of a court of competent jurisdiction or some other
applicable legal requirement) to GTAT that such Electing
Claimholder has beneficial ownership of Newly Traded Claims (as
hereinafter defined): filing an objection to a proposed disclosure
statement or to confirmation of a proposed plan of reorganization;
voting to accept or reject a proposed plan of reorganization;
reviewing or commenting on a proposed business plan; providing
information on a confidential basis to the attorneys for GTAT;
general membership on an official committee or an ad hoc
committee; or taking any action required by the order of the Court.
(3) Following the issuance of a Notice of 382(1)(5) Plan, if GTAT
determines it to be reasonably necessary to require the sale or
transfer of all or a portion of the beneficial ownership of Claims by
an Electing Claimholder on the basis that such sale or transfer is
appropriate to reasonably ensure that the requirements of section
382(1)(5) of the Tax Code will be satisfied, GTAT may request,
after notice to each Electing Claimholder and the Committee and a
hearing, that the Court enter an order approving the issuance of a
notice (the Sell-Down Notice) to the Electing Claimholder that
such Electing Claimholder must sell, cause to sell, or otherwise
transfer all or a portion of its beneficial ownership of Claims (by
class or other applicable breakdown) in excess of (A) the amount
of Claims beneficially owned by such Electing Claimholder over
(B) the Maximum Amount (as hereinafter defined) for such
Electing Claimholder (such excess amount, an Excess Amount).
If the Court approves GTATs issuance of a Sell-Down Notice, the
Debtors may provide the Sell-Down Notice to the relevant Electing
Claimholders.
Prior to (A) the effective date of the 382(1)(5) Plan or (B) such
earlier date specified by GTAT but no earlier than the day after
the entry of the order confirming the 382(1)(5) Plan (the Sell-
Down Date), each Electing Claimholder shall sell, cause to sell,
or otherwise transfer an amount of the beneficial ownership of
Claims (if any) necessary to comply with the Sell-Down Notice
(the Sell-Down); provided, however, that notwithstanding
anything to the contrary in the Order, no Electing Claimholder
shall be required to sell, cause to sell, or otherwise transfer any
beneficial ownership of Claims if such sale would result in the
Electing Claimholder having beneficial ownership of an aggregate
amount of Claims (by class or other applicable breakdown) that is
less than such Electing Claimholders Protected Amount (as
hereinafter defined). Each Electing Claimholder shall sell, cause
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10
to sell, or otherwise transfer its beneficial ownership of Claims
subject to the Sell-Down to Permitted Transferees (as hereinafter
defined); provided, however, that such Electing Claimholder shall
not have a reasonable basis to believe that any such Permitted
Transferee would own, immediately after the contemplated
transfer, an Excess Amount of Claims.
An Electing Claimholder subject to the Sell-Down shall,
within five (5) business days after the later of (i) entry of an
order approving the 382(1)(5) Plan, (ii) the Sell-Down Date,
and (iii) such other date specified in the Sell-Down Notice, as
applicable, but before the effective date of the 382(1)(5) Plan,
and as a condition to receiving Affected Securities (as
hereinafter defined), serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a notice substantially in
the form annexed to the Orders as Exhibit 7 that such Electing
Claimholder has complied with the terms and conditions set
forth in this paragraph (b)(iii)(3) and that such Electing
Claimholder does not and will not hold an Excess Amount of
Claims as of the Sell-Down Date and at all times through the
effective date of the 382(1)(5) Plan (the Notice of
Compliance). Any Electing Claimholder who fails to comply
with this provision shall not receive Affected Securities with
respect to any Excess Amount of Claims.
(4) Except to the extent necessary to demonstrate to the Court the need
for the issuance of a Sell-Down Notice, other than information
contained in the Election Notices that is public or in connection
with an audit or other investigation by the IRS or other taxing
authority, GTAT shall keep all Election Notices and any additional
information provided by an Electing Claimholder pursuant to
paragraph (b)(iii)(3) strictly confidential and shall not disclose the
identity of the Electing Claimholder to any other person or Entity;
provided, however, that GTAT may disclose the identity of the
Electing Claimholder to its counsel and professional financial
advisors and/or the counsel and professional financial advisors of
the Committee and of any other person(s) that are subject to a
nondisclosure agreement with GTAT, each of whom shall keep all
such notices strictly confidential, subject to further order of the
Court; and provided, further, that to the extent GTAT reasonably
determines such confidential information is necessary to
demonstrate to the Court the need for the issuance of a Sell-Down
Notice, such confidential information (determined by, among other
things, whether such information was redacted in any public filing)
shall be filed under seal.
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(5) Any proposed transfer or acquisition of Claims following the
issuance of a Notice of 382(1)(5) Plan shall be subject to the
Advance Approval of Acquisition Provisions set forth in Paragraph
(b)(ii) herein.
(6) Any Electing Claimholder that violates its obligations under an
Election Notice shall, pursuant to the Order, be precluded from
receiving, directly or indirectly, any consideration consisting of a
beneficial ownership of equity (including Options, as defined in
paragraph (a)(v)(3) herein) of GTAT (or any successor to GTAT,
including as determined for U.S. federal income tax purposes) that
is attributable to the Excess Amount of Claims for such Electing
Claimholder, including any consideration in lieu thereof; provided,
however, that such Electing Claimholder may be entitled to receive
any other consideration to which such Electing Claimholder may
be entitled by virtue of holding Claims (the Equity Forfeiture
Provision). Any purported acquisition of, or other increase in the
beneficial ownership of, equity of GTAT (or any successor) that is
precluded by the Equity Forfeiture Provision will be an acquisition
of Forfeited Equity. Any acquirer of Forfeited Equity shall,
immediately upon becoming aware of such fact, return or cause to
return the Forfeited Equity to GTAT (or any successor to GTAT)
or, if all of the equity consideration properly issued to such
acquirer and all or any portion of such Forfeited Equity shall have
been sold prior to the time such acquirer becomes aware of such
fact, such acquirer shall return or cause to return to GTAT (or any
successor to GTAT) (A) any Forfeited Equity still held by such
acquirer and (B) the proceeds attributable to the sale of Forfeited
Equity, calculated by treating the most recently sold equity as
Forfeited Equity. Any acquirer that receives Forfeited Equity and
deliberately fails to comply with the preceding sentence shall be
subject to such additional sanctions as the Court may determine.
Any Forfeited Equity returned to GTAT shall be distributed
(including a transfer to charity) or extinguished, in GTATs sole
discretion, in furtherance of the 382(1)(5) Plan.
(7) In effecting any sale or other transfer of Claims pursuant to a Sell-
Down Notice, an Electing Claimholder shall, to the extent that it is
reasonably feasible to do so within the normal constraints of the
market in which such sale takes place, notify the acquirer of such
Claims of the existence of the Order and the Equity Forfeiture
Provision (it being understood that, in all cases in which there is
direct communication between a salesperson and a customer,
including, without limitation, communication via telephone, e-
mail, and instant messaging, the existence of the Order and the
Equity Forfeiture Provision shall be included in such salespersons
summary of the transaction).
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(iv) Deemed Electing Claimholders; Sanctions.
(1) Notwithstanding the foregoing, effective as of the Petition Date
and until further order of the Court to the contrary, any person or
Entity that (A) is not a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of Claims
that causes such person or Entity to become a Substantial
Claimholder, or (B) is a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of
Claims, shall either comply with the Advance Approval of
Acquisition Provisions pursuant to paragraph (b)(ii) or, to the
extent permitted in Paragraph (b)(iii) herein, file an Election
Notice and thereby become an Electing Claimholder; provided,
however, that any such person or Entity that neither satisfies the
Advance Approval of Acquisition Provisions nor files a timely
Election Notice shall be deemed to have filed an Election Notice
on the Petition Date and to have become an Electing Claimholder
(a Deemed Electing Claimholder) for all purposes of the Order
(other than the issuance of a direct notice to Electing Claimholders,
whenever required). Deemed Electing Claimholders shall be
subject to all the obligations of Electing Claimholders, including,
without limitation, the requirement that Electing Claimholders sell,
cause to sell, or otherwise transfer all or a portion of the beneficial
ownership of Claims pursuant to a Sell-Down Notice or be subject
to the Equity Forfeiture Provision. Nothing in this paragraph
(b)(iv) shall be read to relieve a Deemed Electing Claimholder of
its obligations to notify GTAT of such Deemed Electing
Claimholders status as a Substantial Claimholder. Except as
otherwise provided in the Procedures, all references to an Electing
Claimholder in the Procedures and in the Order shall include a
Deemed Electing Claimholder.
(2) Effective as of the Petition Date, any purchase or acquisition of, or
other increase in the beneficial ownership of, Claims in violation
of the Orders by a Substantial Claimholder shall be subject to such
remedy as the Court may find to be appropriate upon motion by
GTAT, including, without limitation, ordering such noncompliant
Substantial Claimholder to divest itself promptly of any beneficial
ownership of Claims purchased or otherwise acquired in violation
of the Orders and monetary damages for any costs incurred by
GTAT in connection with the enforcement of the Orders. For the
avoidance of doubt, any sanctions imposed by the Court on a
noncompliant Substantial Claimholder pursuant to this paragraph
(b)(iv)(2) shall be in addition to the consequences of treating such
noncompliant Substantial Claimholder as a Deemed Electing
Claimholder for all purposes of the Orders.
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(v) Exception. No person or Entity shall be subject to the Advance Approval
of Acquisition Provisions of paragraph (b)(ii) herein or the Electing
Claimholders provisions of paragraph (b)(iii) herein with respect to any
transfer described in Treasury Regulations section 1.382-9(d)(5)(ii);
provided, however, that such transfer is not for a principal purpose of
obtaining stock in the reorganized GTAT (or any successor) or permitting
the transferee to benefit from the losses of GTAT within the meaning of
Treasury Regulations section 1.382-9(d)(5)(iii); and provided, further, that
any such transferee who becomes a Substantial Claimholder shall file with
the Court, and serve upon GTAT, GTATs proposed counsel and the
Committee counsel, a notice of such status, in the form annexed to the
Orders as Exhibit 4, within ten (10) business days of the later of (i) the
date of the entry of the Interim Order or the Final Order, as applicable, by
the Court and (ii) the date on which such person or Entity becomes a
Substantial Claimholder.
(vi) Definitions. For purposes of this Motion and the Orders, the following
terms have the following meanings:
(1) Applicable Percentage. Applicable Percentage means, if only
one class of Affected Securities is to be issued pursuant to the
terms of the 382(1)(5) Plan and holders within any class of Claims
will receive a pro rata distribution of the Affected Securities,
4.75% of the number of such shares that the Debtors reasonably
estimate will be issued at the effective date of such 382(1)(5) Plan,
as determined for U.S. federal income tax purposes. If more than
one class of the common stock or any other equity securities
(including securities that are treated as equity securities for U.S.
federal income tax purposes) of the reorganized Debtors (or any
successor), including Options (the Affected Securities), is to be
distributed pursuant to the terms of the 382(1)(5) Plan or holders
within a class of Claims may receive a disproportionate
distribution of such securities relative to other holders in the same
class, the Applicable Percentage shall be determined by GTAT in
its reasonable judgment in a manner consistent with the estimated
range of values for the equity to be distributed reflected in the
valuation analysis set forth in the 382(1)(5) Plan and disclosure
statement, and shall be expressed in a manner that makes clear the
number of shares or other interests in each class of Affected
Securities that would constitute the Applicable Percentage.
(2) Beneficial Ownership. Beneficial ownership of a Claim means:
(x) the beneficial ownership of a Claim as determined in
accordance with applicable rules under Section 382, the Treasury
Regulations promulgated thereunder, and rulings issued by the IRS
(for such purpose, treating a Claim as if it is stock), and, to the
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extent provided in those rules from time to time, shall include (A)
direct and indirect ownership (e.g., a holding company would be
considered to beneficially own all Claims owned or acquired by its
subsidiaries), and (B) ownership by a holders family members
and any group of persons acting pursuant to a formal or informal
understanding to make a coordinated acquisition of Claims and/or
stock; and
(y) the beneficial ownership of an Option (irrespective of the
purpose for which such Option was issued, created, or acquired).
(3) Claim. A Claim means any unsecured claim under which any of
the Debtors is the obligor, including the 2017 GT Notes and the
2020 GT Notes. In making this determination, in the case of a
secured claim, that portion of the claim (including such portion
attributable to accrued and unpaid interest) that exceeds the current
fair market value of the security shall be considered an unsecured
Claim. In calculating the amount of any Claims under the
Procedures, any applicable intercreditor agreements, including
subordination agreements, shall be given effect in accordance with
its terms.
(4) Entity. Entity has the meaning set forth in paragraph (b)(i)(l)
above.
(5) Maximum Amount. Maximum Amount means for each person
or Entity and by class or other applicable breakdown of Claims, the
greater of (A) the applicable Threshold Amount and (B) the
Protected Amount (as hereinafter defined) (if any) for such
Electing Claimholder.
(6) Newly Traded Claims. Newly Traded Claims means Claims (i)
with respect to which a person or Entity acquired beneficial
ownership after the date that was eighteen (18) months before the
Petition Date; and (ii) that are not ordinary course claims, within
the meaning of Treasury Regulations section 1.382- 9(d)(2)(iv), of
which the same person or Entity has always had beneficial
ownership.
(7) Option. Option has the meaning given to such term under
Treasury Regulations section 1.382-4(d)(9)(i), with respect to the
acquisition of a Claim or any consideration (including equity)
distributed in respect of any Claim pursuant to a plan of
reorganization or applicable bankruptcy court order.
(8) Permitted Transferee. A Permitted Transferee with respect to an
Electing Claimholder is a person or Entity whose holding of a
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Claim would not result in such Electing Claimholder having
beneficial ownership of such Claim.
(9) Protected Amount. Protected Amount means the amount of
Claims (by class or other applicable breakdown) of which a holder
had beneficial ownership on the Petition Date, increased by the
amount of Claims of which such holder acquires, directly or
indirectly, beneficial ownership pursuant to trades entered into
before the Petition Date that had not yet closed as of the Petition
Date minus the amount of Claims of which such holder sells,
directly or indirectly, beneficial ownership pursuant to trades
entered into before the Petition Date that had not yet closed as of
the Petition Date.
(10) Substantial Claimholder. A Substantial Claimholder means any
person or Entity that beneficially owns an aggregate dollar amount
of Claims against the Debtors, or any Entity controlled by such
person or Entity through which such person or Entity beneficially
owns Claims against the Debtors, of more than the Threshold
Amount.
For the avoidance of doubt, Section 382, the Treasury Regulations
promulgated thereunder, and all relevant IRS and judicial authority
shall apply in determining whether the Claims of several persons
and/or Entities must be aggregated when testing for Substantial
Claimholder status, treating Claims as if they were stock.
(11) Threshold Amount. Threshold Amount means, initially,
$20,615,000, which amount may be subsequently increased or
decreased as GTAT may determine to be appropriate in the Notice
of 382(1)(5) Plan or thereafter in compliance with the Orders.
(12) 2017 GT Notes. 2017 GT Notes means the 3.00% Convertible
Senior Notes maturing October 1, 2017.
(13) 2020 GT Notes. 2020 GT Notes means the 3.00% Convertible
Senior Notes maturing December 15, 2020.
5. Any person or Entity acquiring and/or disposing of GT Stock or a Claim in
violation of the restrictions set forth herein, or failing to comply with the Procedures, shall be
subject to such sanctions as the Court may consider appropriate pursuant to this Courts equitable
power prescribed in section 105(a) of the Bankruptcy Code.
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6. The notice substantially in the form annexed to the Motion as Exhibit C (the
Interim Procedures Notice) is approved.
7. The notices substantially in the form annexed hereto as Exhibits 1 to 7 are
approved.
8. As soon as reasonably practicable after entry of this Interim Order, GTAT shall
serve the Procedures Notice on: (a) the Office of the United States Trustee for Region 1, 1000
Elm Street, Suite 605 Manchester, NH 03101, Attn: Geraldine L. Karonis; (b) the creditors
holding the 30 largest unsecured claims against GTATs estates (on a consolidated basis); (c) the
indenture trustee for the Debtors (i) 3.00% Convertible Senior Notes due 2017, and (ii) 3.00%
Convertible Senior Notes due 2020 (collectively, the GT Notes), U.S. Bank National
Association (U.S. Bank), 60 Livingston Avenue, St. Paul, MN 55107, Attn: Hazrat R. Haniff;
(d) U.S. Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549 (the
SEC); (e) any transfer agents for GT Stock; (f) those holders of GT Stock who have filed
Forms 13D and 13G with the SEC; and (g) those parties who have formally filed requests for
notice in these chapter 11 cases pursuant to Bankruptcy Rule 2002 (collectively, the Notice
Parties).
9. Upon receipt of the Interim Procedures Notice, (i) U.S. Bank, as Indenture
Trustee for the GT Notes, shall send the Procedures Notice to all holders of GT Notes registered
with the Indenture Trustee, (ii) any transfer agents shall send the Procedures Notice to all holders
of GT Stock registered with the transfer agent, (iii) any registered holder shall, in turn, provide
the Procedures Notice to any holder for whose account the registered holder holds GT Stock
and/or GT Notes, and (iv) any holder shall, in tum, provide the Interim Procedures Notice to any
person or entity for whom the holder holds GT Stock and/or GT Notes.
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10. The Interim Procedures Notice shall be posted on the website established by
GTATs claims agent, Kurtzman Carson Consultants LLC, at http://www.kccllc.net/GTAT.
11. Notice of the Motion as provided therein shall be deemed good and sufficient
notice of the Motion.
12. GTAT may waive, in writing, any and all restrictions, stays, and notification
procedures contained in this Order.
13. The relief granted in this Interim Order is intended solely to permit GTAT to
protect, preserve and maximize the value of its Tax Attributes. Accordingly, except to the extent
this Interim Order expressly conditions or restricts trading in claims against or interests in
GTAT, 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 claims against or interests in the
Debtors, including in connection with the treatment of any such claims or interests under any
plan of reorganization.
14. The requirement set forth in LBR 7102(b)(2) that any motion filed shall have an
accompanying memorandum of law is waived.
15. The requirements set forth in this Interim Order are in addition to the
requirements of all applicable law and do not excuse compliance therewith.
16. GTAT is authorized and empowered to take all actions necessary to implement
the relief granted in this Interim Order.
17. A hearing to consider entry of an order granting the relief requested in the Motion
on a final basis is scheduled for ______ , 2014 at __:__.m. in Courtroom __of the United States
Bankruptcy Court for the District of New Hampshire, 1000 Elm Street, Suite 1001, Manchester,
NH 03101, and served upon (i) GTAT, c/o GT Advanced Technologies Inc., 243 Daniel Webster
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Highway, Merrimack, NH 03054, Attn: General Counsel; (ii) Paul Hastings LLP, 75 East 55th
Street, New York, NY 10022, Attn: Luc A. Despins, Esq., and 600 Travis Street, 58th Floor,
Houston, TX 77002, Attn: James T. Grogan, Esq., and Nixon Peabody, 900 Elm Street,
Manchester, NH 03101, Attn: Daniel W. Sklar, Esq. and Holly J. Barcroft, Esq.; and (iii) the
Office of the United States Trustee for Region 1 (the U.S. Trustee), 1000 Elm Street, Suite 605
Manchester, NH 03101, Attn: Geraldine L. Karonis; and (iv) counsel to any statutory creditors
committee appointed in these chapter 11 cases, so as to be received no later than 4:00 p.m. (E.T.)
on _______, 2014 (the Objection Deadline).
18. If a timely Objection(s) is received, a hearing shall be held on _____2014, at
__:__.m (E.T.), to consider, on a final basis, the relief requested in the Motion.
19. If no Objections are timely filed, served, and received in accordance with this
Interim Order, the Debtors shall submit to the Court a final order granting the relief requested in
the Motion
20. Notwithstanding the possible applicability of Rules 6004(h), 7062, 9014 of the
Federal Rules of Bankruptcy Procedure or otherwise, the terms and conditions of this Interim
Order shall be immediately effective and enforceable upon its entry.
21. This Court retains jurisdiction with respect to all matters arising from or related to
the interpretation, implementation or enforcement of this Interim Order.
Dated: _______________, 2014
Manchester, NH
___________________________________
CHIEF UNITED STATES BANKRUPTCY JUDGE
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EXHIBIT B
PROPOSED FINAL ORDER
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
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I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
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x
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:
:
:
:
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:
x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
RE: Docket Nos. ___
FINAL ORDER, PURSUANT TO BANKRUPTCY CODE SECTIONS 105(a) AND 362,
ESTABLISHING NOTIFICATION PROCEDURES AND APPROVING
RESTRICTIONS ON CERTAIN TRANSFERS OF CLAIMS AGAINST AND EQUITY
INTERESTS IN THE DEBTORS NUNC PROTUNC TO THE PETITION DATE
Upon the motion (the Motion)
2
of GT Advanced Technologies Inc. (GT) and its
affiliated debtors as debtors in possession (collectively, GTAT or the Debtors) for entry of a
final order (the Final Order) pursuant to sections 105 and 362 of the Bankruptcy Code
establishing notification procedures and approving restrictions of certain transfers of claims
against and equity interests in GTAT, all as more fully set forth in the Motion; and this Court
having jurisdiction to consider the Motion and the relief requested therein in accordance with 28
U.S.C. 157 and 1334; and consideration of the Motion and the relief requested therein being a
core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper before this Court
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Motion.
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2
pursuant to 28 U.S.C. 1408 and 1409; and due and proper notice of the Motion having been
provided under the particular circumstances, and it appearing that no other or further notice need
be provided; and this Court having determined that the legal and factual bases set forth in the
Motion establish just cause for the relief granted herein; and upon consideration of the First Day
Declaration; and it appearing that the relief requested in the Motion is in the best interests of
GTAT, its estates, and creditors; and upon all of the proceedings had before this Court and after
due deliberation and sufficient cause appearing therefor, it is hereby FOUND AND
DETERMINED THAT:
A. GTATS net operating loss carryforwards (NOLs) and certain other tax
attributes, (together with the NOLs, the Tax Attributes), are property of GTATS estates and
are protected by section 362(a) of the Bankruptcy Code.
B. Unrestricted trading in common stock of GT (GT Stock) before GTATs
emergence from chapter 11 could severely limit GTATs ability to use the Tax Attributes for
purposes of the Internal Revenue Code of 1986, as amended (the Tax Code), as set forth in the
Motion;
C. The notification procedures and restrictions on certain transfers of GT Stock and
Claims (as defined below) are necessary and proper to preserve the Tax Attributes and are
therefore in the best interests of GTAT, its estates, and its creditors; and
D. The relief requested in the Motion is authorized under sections 105(a) and 362 of
the Bankruptcy Code.
IT IS HEREBY ORDERED THAT:
1. The Motion is GRANTED on a final basis as set forth herein.
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3
2. The provisions of Final Order shall be effective, nunc pro tunc, to the Petition
Date.
3. Any acquisition, disposition or other transfer in violation of the restrictions set
forth herein shall be null and void ab initio as an act in violation of the automatic stay prescribed
in section 362 of the Bankruptcy Code and pursuant to this Courts equitable power prescribed in
section 105(a) of the Bankruptcy Code.
4. The following procedures and restrictions shall apply to (a) trading in GT Stock,
and (b) trading in Claims against GTAT, and are approved:
(a) GT StockOwnership, Acquisition, andDisposition
(i) Notice of Substantial GT Stock Ownership. Any person or entity (as such
latter term is defined in section 1.382-3(a) of the Treasury Regulations,
including persons acting pursuant to a formal or informal understanding
among themselves to make a coordinated acquisition, an Entity) that
beneficially owns, at any time on or after the Petition Date, GT Stock (as
hereinafter defined) in an amount sufficient to qualify such person or
Entity as a Substantial Equityholder (as hereinafter defined) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
counsel for any statutory committee of unsecured creditors appointed in
these cases (the Committee), a Notice of Substantial Stock Ownership (a
Substantial Ownership Notice), in the form attached as Exhibit 1 to the
Orders, which describes specifically and in detail the GT Stock ownership
of such person or Entity, on or before the date that is the later of: (a) ten
(10) business days after the entry of the Interim Order or the Final Order,
as applicable, and (b) ten (10) business days after that person or Entity
qualifies as a Substantial Equityholder. At the election of the Substantial
Equityholder, the Substantial Ownership Notice to be filed with the Court
(but not such notice served upon GTAT, GTATs proposed counsel and
the Committees counsel) may be redacted to exclude the Substantial
Equity Holders taxpayer identification number and the number of shares
of GT Stock that the Substantial Equityholder beneficially owns.
(ii) Acquisition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer of equity securities (including
Options, as hereinafter defined, to acquire such securities) that would
result in an increase in the amount of GT Stock beneficially owned by any
person or Entity that currently is or subsequently becomes a Substantial
Equityholder or that would result in a person or Entity becoming a
Substantial Equityholder (a Proposed Equity Acquisition Transaction),
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such person, Entity or Substantial Equityholder (a Proposed Equity
Transferee) shall file with the Court, and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, a Notice of Intent to
Purchase, Acquire, or Otherwise Accumulate GT Stock (an Equity
Acquisition Notice), in the form annexed as Exhibit 2 to the Orders,
which describes specifically and in detail the proposed transaction in
which GT Stock is to be acquired. At the election of the Proposed Equity
Transferee, the Equity Acquisition Notice that is filed with the Court (but
not such notice served upon GTAT, GTATs proposed counsel and the
Committees counsel) may be redacted to exclude the Proposed Equity
Transferees taxpayer identification number and the number of shares of
GT Stock that the Proposed Equity Transferee beneficially owns and
proposes to purchase or otherwise acquire.
(iii) Disposition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer or other disposition of equity
securities (including Options to acquire such securities) that would result
in a decrease in the amount of GT Stock beneficially owned by a
Substantial Equityholder or that would result in a person or Entity ceasing
to be a Substantial Equityholder (a Proposed Equity Disposition
Transaction, and together with a Proposed Equity Acquisition
Transaction, a Proposed Equity Transaction), such person, Entity, or
Substantial Equityholder (a Proposed Equity Transferor) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a Notice of Intent to Sell, Trade, or Otherwise
Transfer GT Stock (an Equity Disposition Notice, and together with an
Equity Acquisition Notice, an Equity Trading Notice), in the form
annexed as Exhibit 3 to the Orders, which describes specifically and in
detail the proposed transaction in which GT Stock would be transferred.
At the election of the Proposed Equity Transferor, the Equity Disposition
Notice that is filed with the Court (but not such notice served upon GTAT,
GTATs proposed counsel and the Committees counsel) may be redacted
to exclude the Proposed Equity Transferors taxpayer identification
number and the number of shares of GT Stock that the Proposed Equity
Transferor beneficially owns and proposes to sell or otherwise transfer.
(iv) Objection Procedures. GTAT and the Committee shall have fifteen (15)
business days after the filing of an Equity Trading Notice (the Equity
Objection Deadline) to file with the Court and serve on a Proposed
Equity Transferee or a Proposed Equity Transferor, as the case may be, an
objection to any proposed transfer of equity securities (including Options
to acquire such securities) described in such Equity Trading Notice on the
grounds that such transfer may adversely affect GTATs ability to utilize
the Tax Attributes (an Equity Objection) as a result of an ownership
change under Section 382.
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(1) If GTAT or the Committee files an Equity Objection by the Equity
Objection Deadline, then the Proposed Equity Transaction shall
not be effective unless approved by a final and nonappealable
order of this Court.
(2) If GTAT or the Committee do not file an Equity Objection by the
Equity Objection Deadline, or if GTAT and the Committee provide
written authorization to the Proposed Equity Transferee or the
Proposed Equity Transferor, as the case may be, approving the
Proposed Equity Transaction, prior to the Equity Objection
Deadline, then such Proposed Equity Transaction may proceed
solely as specifically described in the Equity Trading Notice.
(v) Additional Acquisitions. Any additional transaction within the scope of
paragraphs (a)(ii) or (a)(iii) above must be the subject of an additional
notice as set forth herein with the applicable waiting period.
(vi) Definitions. For purposes of this Motion and the Proposed Order, the
following terms have the following meanings:
(1) Substantial Equityholder. A Substantial Equityholder is any
person or Entity that beneficially owns, or any Entity controlled by
such person or Entity through which such person or Entity
beneficially owns, at least 4.75% of all issued and outstanding
shares of GT Stock.
(2) Beneficial Ownership. Beneficial ownership (or any variation
thereof of GT Stock and Options to acquire GT Stock) shall be
determined in accordance with applicable rules under Section 382,
the Treasury Regulations promulgated thereunder and rulings
issued by the Internal Revenue Service, and, thus, to the extent
provided in those rules, from time to time shall include, without
limitation, (A) direct and indirect ownership (e.g., a holding
company would be considered to beneficially own all stock owned
or acquired by its subsidiaries), (B) ownership by a holders family
members and any group of persons acting pursuant to a formal or
informal understanding to make a coordinated acquisition of stock,
and (C) to the extent provided in Treasury Regulations section
1.382-4, the ownership of an Option to acquire GT Stock.
(3) Option. An Option to acquire stock includes 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 or otherwise not currently exercisable.
(4) GT Stock. GT Stock shall mean all common stock of GT. For
the avoidance of doubt, by operation of the definition of beneficial
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6
ownership, an owner of an Option to acquire GT Stock may be
treated as the owner of such GT Stock.
(b) TradinginClaimsof GTAT
(i) Notice of Substantial Claimholder Status; Notice of 382(l)(5) Plan.
(1) Any person or Entity (as such term is defined in Treasury
Regulations section 1.382-3(a), including persons acting pursuant
to a formal or informal understanding among themselves to make a
coordinated acquisition) that currently is or becomes a Substantial
Claimholder (as hereinafter defined) shall file with the Court and
serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a notice of such status (a Notice of
Substantial Claimholder Status), in the form annexed to the
Orders as Exhibit 4, within ten (10) business days of the later of
(A) the entry of the Interim Order or the Final Order, as applicable,
and (B) the date on which such person or Entity becomes a
Substantial Claimholder. At the election of the Substantial
Claimholder, the Notice of Substantial Claimholder Status that is
filed with the Court (but not the Notice of Substantial Claimholder
Status that is served upon GTAT, GTATs proposed counsel, and
the Committees counsel) may be redacted to exclude the
Substantial Claimholders taxpayer identification number and the
aggregate dollar amount of Claims (as hereinafter defined) that the
Substantial Claimholder beneficially owns.
(2) Upon filing a plan and disclosure statement that contemplates the
potential utilization of section 382(1)(5) of the Tax Code (the
382(1)(5) Plan), GTAT shall (A) publish (or arrange for
publication of) a notice and provide a written notice to the Notice
Parties and Electing Claimholders (each as hereinafter defined),
disclosing the filing of such 382(1)(5) Plan and the potential
issuance of a Sell-Down Notice (as hereinafter defined) in
connection therewith on the website to be established by the
Debtors claims and noticing agent (the Claims and Noticing
Agent) and in the national edition of The Wall Street Journal (a
Notice of 382(1)(5) Plan), (B) identify the Threshold Amount (as
hereinafter defined) of Claims for status as a Substantial
Claimholder and (C) request from each Electing Claimholder
(including a Deemed Electing Claimholder (as hereinafter
defined)) updated information regarding the aggregate amount of
Claims beneficially owned by such Electing Claimholder, which
updated information shall be delivered by such Electing
Claimholder to the Debtors within ten (10) business days of receipt
of the request therefor or, in the case of a Deemed Electing
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7
Claimholder, ten (10) business days of the date of the Notice of
382(1)(5) Plan.
For the avoidance of doubt, GTAT shall have no obligation under
the Orders to provide notice to any Deemed Electing Claimholder
of the matters set forth in this Paragraph (b)(i)(2), and the lack of
such notice shall not limit the obligation of a Deemed Electing
Claimholder to comply with the requirements of a Sell-Down
Notice (as hereinafter defined) or affect the application of the
Equity Forfeiture Provision (as hereinafter defined) with respect to
such Deemed Electing Claimholder.
(3) GTAT shall disclose the Threshold Amount in the Notice of
382(1)(5) Plan as of the date of the Notice of 382(1)(5) Plan based
on then available information, including any change in the
Threshold Amount. GTAT may adjust the Threshold Amount
based on the updated information from Electing Claimholders
pursuant to paragraph (b)(i)(2) herein. If the Threshold Amount is
adjusted, GTAT shall provide a notice of such adjusted amount in
the same manner as the Notice of 382(1)(5) Plan and such notice
shall be treated as an amended Notice of 382(1)(5) Plan, thereby
requesting updated information from each Electing Claimholder
and Deemed Electing Claimholder.
(ii) Advance Approval of Acquisition Provisions.
(1) Acquisition of Claims. Except as provided in paragraph (b)(v) and
the Electing Claimholder provisions in paragraph (b)(iii) herein, at
least twenty (20) business days prior to the proposed date of any
transfer of Claims that would result in (A) an increase in the dollar
amount of Claims beneficially owned by a Substantial Claimholder
or (B) any person or Entity becoming a Substantial Claimholder (a
Proposed Claims Acquisition Transaction), such person, Entity,
or Substantial Claimholder (a Proposed Claims Transferee) may
file with the Court and serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a Notice of Request to
Purchase, Acquire, or Otherwise Accumulate a Claim (a Claims
Acquisition Request), in the form annexed to the Orders as
Exhibit 5, which describes in detail the intended acquisition of
Claims, regardless of whether such transfer would be subject to the
filing, notice, and hearing requirements set forth in Bankruptcy
Rule 3001. At the Proposed Claims Transferees election, the
Claims Acquisition Request that is filed with the Court (but not the
Claims Acquisition Request that is served upon GTAT, GTATs
proposed counsel, and the Committees counsel) may be redacted
to exclude the Proposed Claims Transferees taxpayer
identification number and the aggregate dollar amount of Claims
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8
the Proposed Claims Transferee beneficially owns and proposes to
purchase or otherwise acquire.
(2) Approval Procedures. GTAT may determine, in furtherance of the
purposes of the Procedures and in consultation with counsel for the
Committee, whether or not to approve a Claims Acquisition
Request. If GTAT does not approve a Claims Acquisition Request
in writing within fifteen (15) business days after the Claims
Acquisition Request is filed with the Court, the Claims Acquisition
Request shall be deemed rejected. In the event a Proposed Claims
Transferees request is rejected prior to the date of a Notice of
382(1)(5) Plan, and the Proposed Claims Transferee still desires to
pursue the Proposed Claims Acquisition Transaction, the Proposed
Claims Transferee is subject to, and may avail itself of, the
Electing Claimholders provisions in paragraph (b)(iii) below.
(iii) Electing Claimholders.
(1) Any person or Entity generally may trade freely and make a
market in Claims without having to obtain advance approval as
otherwise required under paragraph (b)(ii) herein (the Advance
Approval of Acquisition Provisions) if such person or Entity
makes an election pursuant to, and abides by the provisions of, this
Paragraph (b)(iii). In order to make such election, a person or
Entity shall file with the Court and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, an election notice,
in the form annexed to the Orders as Exhibit 6 (the Election
Notice), within ten (10) business days after the later of (A) the
date of the first purchase or acquisition of, or other increase in the
beneficial ownership (as hereinafter defined) of, Claims by a
Substantial Claimholder following the entry of the Interim Order
or the Final Order, as applicable, and (B) the date of any purchase
or acquisition of, or other increase in the beneficial ownership of,
Claims that causes such person or Entity to become a Substantial
Claimholder. The filing or service of such Election Notice shall
constitute acceptance of the terms and conditions set forth in the
Election Notice and in this paragraph (b)(iii) by a person or Entity
who files or serves such Election Notice (an Electing
Claimholder). An Electing Claimholder shall remain subject to
the initial notice requirements of paragraph (b)(i) herein.
(2) To permit reliance by GTAT on Treasury Regulations section
1.382-9(d)(3), any Electing Claimholder shall not participate in
formulating any chapter 11 plan of reorganization of or on behalf
of GTAT (which shall include, without limitation, making any
suggestions or proposals to GTAT or its advisors with regard to
such a plan); provided, however, that the following activities shall
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9
not constitute participation in formulating a plan of reorganization
if; in pursuing such activities, the Electing Claimholder does not
disclose or otherwise make evident (unless compelled to do so by
an order of a court of competent jurisdiction or some other
applicable legal requirement) to GTAT that such Electing
Claimholder has beneficial ownership of Newly Traded Claims (as
hereinafter defined): filing an objection to a proposed disclosure
statement or to confirmation of a proposed plan of reorganization;
voting to accept or reject a proposed plan of reorganization;
reviewing or commenting on a proposed business plan; providing
information on a confidential basis to the attorneys for GTAT;
general membership on an official committee or an ad hoc
committee; or taking any action required by the order of the Court.
(3) Following the issuance of a Notice of 382(1)(5) Plan, if GTAT
determines it to be reasonably necessary to require the sale or
transfer of all or a portion of the beneficial ownership of Claims by
an Electing Claimholder on the basis that such sale or transfer is
appropriate to reasonably ensure that the requirements of section
382(1)(5) of the Tax Code will be satisfied, GTAT may request,
after notice to each Electing Claimholder and the Committee and a
hearing, that the Court enter an order approving the issuance of a
notice (the Sell-Down Notice) to the Electing Claimholder that
such Electing Claimholder must sell, cause to sell, or otherwise
transfer all or a portion of its beneficial ownership of Claims (by
class or other applicable breakdown) in excess of (A) the amount
of Claims beneficially owned by such Electing Claimholder over
(B) the Maximum Amount (as hereinafter defined) for such
Electing Claimholder (such excess amount, an Excess Amount).
If the Court approves GTATs issuance of a Sell-Down Notice, the
Debtors may provide the Sell-Down Notice to the relevant Electing
Claimholders.
Prior to (A) the effective date of the 382(1)(5) Plan or (B) such
earlier date specified by GTAT but no earlier than the day after
the entry of the order confirming the 382(1)(5) Plan (the Sell-
Down Date), each Electing Claimholder shall sell, cause to sell,
or otherwise transfer an amount of the beneficial ownership of
Claims (if any) necessary to comply with the Sell-Down Notice
(the Sell-Down); provided, however, that notwithstanding
anything to the contrary in the Order, no Electing Claimholder
shall be required to sell, cause to sell, or otherwise transfer any
beneficial ownership of Claims if such sale would result in the
Electing Claimholder having beneficial ownership of an aggregate
amount of Claims (by class or other applicable breakdown) that is
less than such Electing Claimholders Protected Amount (as
hereinafter defined). Each Electing Claimholder shall sell, cause
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to sell, or otherwise transfer its beneficial ownership of Claims
subject to the Sell-Down to Permitted Transferees (as hereinafter
defined); provided, however, that such Electing Claimholder shall
not have a reasonable basis to believe that any such Permitted
Transferee would own, immediately after the contemplated
transfer, an Excess Amount of Claims.
An Electing Claimholder subject to the Sell-Down shall,
within five (5) business days after the later of (i) entry of an
order approving the 382(1)(5) Plan, (ii) the Sell-Down Date,
and (iii) such other date specified in the Sell-Down Notice, as
applicable, but before the effective date of the 382(1)(5) Plan,
and as a condition to receiving Affected Securities (as
hereinafter defined), serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a notice substantially in
the form annexed to the Orders as Exhibit 7 that such Electing
Claimholder has complied with the terms and conditions set
forth in this paragraph (b)(iii)(3) and that such Electing
Claimholder does not and will not hold an Excess Amount of
Claims as of the Sell-Down Date and at all times through the
effective date of the 382(1)(5) Plan (the Notice of
Compliance). Any Electing Claimholder who fails to comply
with this provision shall not receive Affected Securities with
respect to any Excess Amount of Claims.
(4) Except to the extent necessary to demonstrate to the Court the need
for the issuance of a Sell-Down Notice, other than information
contained in the Election Notices that is public or in connection
with an audit or other investigation by the IRS or other taxing
authority, GTAT shall keep all Election Notices and any additional
information provided by an Electing Claimholder pursuant to
paragraph (b)(iii)(3) strictly confidential and shall not disclose the
identity of the Electing Claimholder to any other person or Entity;
provided, however, that GTAT may disclose the identity of the
Electing Claimholder to its counsel and professional financial
advisors and/or the counsel and professional financial advisors of
the Committee and of any other person(s) that are subject to a
nondisclosure agreement with GTAT, each of whom shall keep all
such notices strictly confidential, subject to further order of the
Court; and provided, further, that to the extent GTAT reasonably
determines such confidential information is necessary to
demonstrate to the Court the need for the issuance of a Sell-Down
Notice, such confidential information (determined by, among other
things, whether such information was redacted in any public filing)
shall be filed under seal.
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(5) Any proposed transfer or acquisition of Claims following the
issuance of a Notice of 382(1)(5) Plan shall be subject to the
Advance Approval of Acquisition Provisions set forth in Paragraph
(b)(ii) herein.
(6) Any Electing Claimholder that violates its obligations under an
Election Notice shall, pursuant to the Order, be precluded from
receiving, directly or indirectly, any consideration consisting of a
beneficial ownership of equity (including Options, as defined in
paragraph (a)(v)(3) herein) of GTAT (or any successor to GTAT,
including as determined for U.S. federal income tax purposes) that
is attributable to the Excess Amount of Claims for such Electing
Claimholder, including any consideration in lieu thereof; provided,
however, that such Electing Claimholder may be entitled to receive
any other consideration to which such Electing Claimholder may
be entitled by virtue of holding Claims (the Equity Forfeiture
Provision). Any purported acquisition of, or other increase in the
beneficial ownership of, equity of GTAT (or any successor) that is
precluded by the Equity Forfeiture Provision will be an acquisition
of Forfeited Equity. Any acquirer of Forfeited Equity shall,
immediately upon becoming aware of such fact, return or cause to
return the Forfeited Equity to GTAT (or any successor to GTAT)
or, if all of the equity consideration properly issued to such
acquirer and all or any portion of such Forfeited Equity shall have
been sold prior to the time such acquirer becomes aware of such
fact, such acquirer shall return or cause to return to GTAT (or any
successor to GTAT) (A) any Forfeited Equity still held by such
acquirer and (B) the proceeds attributable to the sale of Forfeited
Equity, calculated by treating the most recently sold equity as
Forfeited Equity. Any acquirer that receives Forfeited Equity and
deliberately fails to comply with the preceding sentence shall be
subject to such additional sanctions as the Court may determine.
Any Forfeited Equity returned to GTAT shall be distributed
(including a transfer to charity) or extinguished, in GTATs sole
discretion, in furtherance of the 382(1)(5) Plan.
(7) In effecting any sale or other transfer of Claims pursuant to a Sell-
Down Notice, an Electing Claimholder shall, to the extent that it is
reasonably feasible to do so within the normal constraints of the
market in which such sale takes place, notify the acquirer of such
Claims of the existence of the Order and the Equity Forfeiture
Provision (it being understood that, in all cases in which there is
direct communication between a salesperson and a customer,
including, without limitation, communication via telephone, e-
mail, and instant messaging, the existence of the Order and the
Equity Forfeiture Provision shall be included in such salespersons
summary of the transaction).
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(iv) Deemed Electing Claimholders; Sanctions.
(1) Notwithstanding the foregoing, effective as of the Petition Date
and until further order of the Court to the contrary, any person or
Entity that (A) is not a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of Claims
that causes such person or Entity to become a Substantial
Claimholder, or (B) is a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of
Claims, shall either comply with the Advance Approval of
Acquisition Provisions pursuant to paragraph (b)(ii) or, to the
extent permitted in Paragraph (b)(iii) herein, file an Election
Notice and thereby become an Electing Claimholder; provided,
however, that any such person or Entity that neither satisfies the
Advance Approval of Acquisition Provisions nor files a timely
Election Notice shall be deemed to have filed an Election Notice
on the Petition Date and to have become an Electing Claimholder
(a Deemed Electing Claimholder) for all purposes of the Order
(other than the issuance of a direct notice to Electing Claimholders,
whenever required). Deemed Electing Claimholders shall be
subject to all the obligations of Electing Claimholders, including,
without limitation, the requirement that Electing Claimholders sell,
cause to sell, or otherwise transfer all or a portion of the beneficial
ownership of Claims pursuant to a Sell-Down Notice or be subject
to the Equity Forfeiture Provision. Nothing in this paragraph
(b)(iv) shall be read to relieve a Deemed Electing Claimholder of
its obligations to notify GTAT of such Deemed Electing
Claimholders status as a Substantial Claimholder. Except as
otherwise provided in the Procedures, all references to an Electing
Claimholder in the Procedures and in the Order shall include a
Deemed Electing Claimholder.
(2) Effective as of the Petition Date, any purchase or acquisition of, or
other increase in the beneficial ownership of, Claims in violation
of the Orders by a Substantial Claimholder shall be subject to such
remedy as the Court may find to be appropriate upon motion by
GTAT, including, without limitation, ordering such noncompliant
Substantial Claimholder to divest itself promptly of any beneficial
ownership of Claims purchased or otherwise acquired in violation
of the Orders and monetary damages for any costs incurred by
GTAT in connection with the enforcement of the Orders. For the
avoidance of doubt, any sanctions imposed by the Court on a
noncompliant Substantial Claimholder pursuant to this paragraph
(b)(iv)(2) shall be in addition to the consequences of treating such
noncompliant Substantial Claimholder as a Deemed Electing
Claimholder for all purposes of the Orders.
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(v) Exception. No person or Entity shall be subject to the Advance Approval
of Acquisition Provisions of paragraph (b)(ii) herein or the Electing
Claimholders provisions of paragraph (b)(iii) herein with respect to any
transfer described in Treasury Regulations section 1.382-9(d)(5)(ii);
provided, however, that such transfer is not for a principal purpose of
obtaining stock in the reorganized GTAT (or any successor) or permitting
the transferee to benefit from the losses of GTAT within the meaning of
Treasury Regulations section 1.382-9(d)(5)(iii); and provided, further, that
any such transferee who becomes a Substantial Claimholder shall file with
the Court, and serve upon GTAT, GTATs proposed counsel and the
Committee counsel, a notice of such status, in the form annexed to the
Orders as Exhibit 4, within ten (10) business days of the later of (i) the
date of the entry of the Interim Order or the Final Order, as applicable, by
the Court and (ii) the date on which such person or Entity becomes a
Substantial Claimholder.
(vi) Definitions. For purposes of this Motion and the Orders, the following
terms have the following meanings:
(1) Applicable Percentage. Applicable Percentage means, if only
one class of Affected Securities is to be issued pursuant to the
terms of the 382(1)(5) Plan and holders within any class of Claims
will receive a pro rata distribution of the Affected Securities,
4.75% of the number of such shares that the Debtors reasonably
estimate will be issued at the effective date of such 382(1)(5) Plan,
as determined for U.S. federal income tax purposes. If more than
one class of the common stock or any other equity securities
(including securities that are treated as equity securities for U.S.
federal income tax purposes) of the reorganized Debtors (or any
successor), including Options (the Affected Securities), is to be
distributed pursuant to the terms of the 382(1)(5) Plan or holders
within a class of Claims may receive a disproportionate
distribution of such securities relative to other holders in the same
class, the Applicable Percentage shall be determined by GTAT in
its reasonable judgment in a manner consistent with the estimated
range of values for the equity to be distributed reflected in the
valuation analysis set forth in the 382(1)(5) Plan and disclosure
statement, and shall be expressed in a manner that makes clear the
number of shares or other interests in each class of Affected
Securities that would constitute the Applicable Percentage.
(2) Beneficial Ownership. Beneficial ownership of a Claim means:
(x) the beneficial ownership of a Claim as determined in
accordance with applicable rules under Section 382, the Treasury
Regulations promulgated thereunder, and rulings issued by the IRS
(for such purpose, treating a Claim as if it is stock), and, to the
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extent provided in those rules from time to time, shall include (A)
direct and indirect ownership (e.g., a holding company would be
considered to beneficially own all Claims owned or acquired by its
subsidiaries), and (B) ownership by a holders family members and
any group of persons acting pursuant to a formal or informal
understanding to make a coordinated acquisition of Claims and/or
stock; and
(y) the beneficial ownership of an Option (irrespective of the
purpose for which such Option was issued, created, or acquired).
(3) Claim. A Claim means any unsecured claim under which any of
the Debtors is the obligor, including the 2017 GT Notes and the
2020 GT Notes. In making this determination, in the case of a
secured claim, that portion of the claim (including such portion
attributable to accrued and unpaid interest) that exceeds the current
fair market value of the security shall be considered an unsecured
Claim. In calculating the amount of any Claims under the
Procedures, any applicable intercreditor agreements, including
subordination agreements, shall be given effect in accordance with
their terms.
(4) Entity. Entity has the meaning set forth in paragraph (b)(i)(l)
above.
(5) Maximum Amount. Maximum Amount means for each person
or Entity and by class or other applicable breakdown of Claims, the
greater of (A) the applicable Threshold Amount and (B) the
Protected Amount (as hereinafter defined) (if any) for such
Electing Claimholder.
(6) Newly Traded Claims. Newly Traded Claims means Claims (i)
with respect to which a person or Entity acquired beneficial
ownership after the date that was eighteen (18) months before the
Petition Date; and (ii) that are not ordinary course claims, within
the meaning of Treasury Regulations section 1.382- 9(d)(2)(iv), of
which the same person or Entity has always had beneficial
ownership.
(7) Option. Option has the meaning given to such term under
Treasury Regulations section 1.382-4(d)(9)(i), with respect to the
acquisition of a Claim or any consideration (including equity)
distributed in respect of any Claim pursuant to a plan of
reorganization or applicable bankruptcy court order.
(8) Permitted Transferee. A Permitted Transferee with respect to an
Electing Claimholder is a person or Entity whose holding of a
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Claim would not result in such Electing Claimholder having
beneficial ownership of such Claim.
(9) Protected Amount. Protected Amount means the amount of
Claims (by class or other applicable breakdown) of which a holder
had beneficial ownership on the Petition Date, increased by the
amount of Claims of which such holder acquires, directly or
indirectly, beneficial ownership pursuant to trades entered into
before the Petition Date that had not yet closed as of the Petition
Date minus the amount of Claims of which such holder sells,
directly or indirectly, beneficial ownership pursuant to trades
entered into before the Petition Date that had not yet closed as of
the Petition Date.
(10) Substantial Claimholder. A Substantial Claimholder means any
person or Entity that beneficially owns an aggregate dollar amount
of Claims against the Debtors, or any Entity controlled by such
person or Entity through which such person or Entity beneficially
owns Claims against the Debtors, of more than the Threshold
Amount.
For the avoidance of doubt, Section 382, the Treasury Regulations
promulgated thereunder, and all relevant IRS and judicial authority
shall apply in determining whether the Claims of several persons
and/or Entities must be aggregated when testing for Substantial
Claimholder status, treating Claims as if they were stock.
(11) Threshold Amount. Threshold Amount means, initially,
$20,615,000, which amount may be subsequently increased or
decreased as GTAT may determine to be appropriate in the Notice
of 382(1)(5) Plan or thereafter in compliance with the Orders.
(12) 2017 GT Notes. 2017 GT Notes means the 3.00% Convertible
Senior Notes maturing October 1, 2017.
(13) 2020 GT Notes. 2020 GT Notes means the 3.00% Convertible
Senior Notes maturing December 15, 2020.
5. Any person or Entity acquiring and/or disposing of GT Stock or a Claim in
violation of the restrictions set forth herein, or failing to comply with the Procedures, shall be
subject to such sanctions as the Court may consider appropriate pursuant to this Courts equitable
power prescribed in section 105(a) of the Bankruptcy Code
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6. The notice substantially in the form annexed to the Motion as Exhibit D (the
Final Procedures Notice) is approved.
7. The notices substantially in the form annexed hereto as Exhibits 1 to 7 are
approved.
8. As soon as reasonably practicable after entry of this Order, GTAT shall serve the
Procedures Notice on: (a) the Office of the United States Trustee for Region 1, 1000 Elm Street,
Suite 605 Manchester, NH 03101, Attn: Geraldine L. Karonis; (b) the creditors holding the 30
largest unsecured claims against GTATs estates (on a consolidated basis); (c) the indenture
trustee for the Debtors (i) 3.00% Convertible Senior Notes due 2017, and (ii) 3.00% Convertible
Senior Notes due 2020 (collectively, the GT Notes), U.S. Bank National Association (U.S.
Bank), 60 Livingston Avenue, St. Paul, MN 55107, Attn: Hazrat R. Haniff; (d) U.S. Securities
and Exchange Commission, 100 F Street, NE, Washington, DC 20549 (the SEC); (e) any
transfer agents for GT Stock; (f) those holders of GT Stock who have filed Forms 13D and 13G
with the SEC; and (g) those parties who have formally filed requests for notice in these chapter
11 cases pursuant to Bankruptcy Rule 2002 (collectively, the Notice Parties).
9. Upon receipt of the Procedures Notice, (i) U.S. Bank, as Indenture Trustee for the
GT Notes, shall send the Procedures Notice to all holders of GT Notes registered with the
Indenture Trustee, (ii) any transfer agents shall send the Procedures Notice to all holders of GT
Stock registered with the transfer agent, (iii) any registered holder shall, in turn, provide the
Procedures Notice to any holder for whose account the registered holder holds GT Stock and/or
GT Notes, and (iv) any holder shall, in tum, provide the Procedures Notice to any person or
entity for whom the holder holds GT Stock and/or GT Notes.
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10. The Procedures Notice shall be posted on the website established by GTATs
claims agent, Kurtzman Carson Consultants LLC, at http://www.kccllc.net/GTAT.
11. Notice of the Motion as provided therein shall be deemed good and sufficient
notice of the Motion.
12. GTAT may waive, in writing, any and all restrictions, stays, and notification
procedures contained in this Order.
13. The relief granted in this Order is intended solely to permit GTAT to protect,
preserve and maximize the value of its Tax Attributes. Accordingly, except to the extent this
Order expressly conditions or restricts trading in claims against or interests in GTAT, nothing in
this Order or in the Motion shall or shall be deemed to prejudice, impair or otherwise alter or
affect the rights of any holders of claims against or interests in the Debtors, including in
connection with the treatment of any such claims or interests under any plan of reorganization.
14. The requirement set forth in LBR 7102(b)(2) that any motion filed shall have an
accompanying memorandum of law is waived.
15. The requirements set forth in this Order are in addition to the requirements of all
applicable law and do not excuse compliance therewith.
16. GTAT is authorized to take all actions necessary to effectuate the relief granted
pursuant to this Order in accordance with the Motion.
17. Notwithstanding the possible applicability of Rules 6004(h), 7062, 9014 of the
Federal Rules of Bankruptcy Procedure or otherwise, the terms and conditions of this Order shall
be immediately effective and enforceable upon its entry.
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18
18. This Court retains jurisdiction with respect to all matters arising from or related to
this Order.
Dated: _______________, 2014
Manchester, NH
_________________________________
CHIEF UNITED STATES BANKRUPTCY JUDGE
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Exhibit 1
Substantial Stock Ownership Notice
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
---------------------------------------------------------------
x
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF SUBSTANTIAL STOCK OWNERSHIP
PLEASE TAKE NOTICE that ___________________________ (the Filer) hereby
provides notice (the Notice) that, as of [Date], the Filer beneficially owns ______ shares of
stock in GT Advanced Technologies Inc. (GT Stock), which represents ____ % of the total
amount of GT Stock currently outstanding.
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of the
Filer is _____ .
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, the Filer hereby
declares that it has examined this Notice and 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.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, Pursuant To
Bankruptcy Code Sections 105(a) And 362, Establishing Notification Procedures And Approving
Restrictions On Certain Transfers Of Claims Against And Equity Interests In The Debtors Nunc
Pro Tunc To The Petition Date (the Order), this Notice is being filed with the Court and served
upon GTAT, GTATs counsel and the Committees counsel.
2
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Order.
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2
For purposes of this Notice, (i) beneficial ownership (or any variation thereof) of GT
Stock and Options to acquire GT Stock) shall be determined in accordance with applicable rules
under section 382 of the Internal Revenue Code of 1986, as amended, the U.S. Department of
Treasury regulations (Treasury Regulations) promulgated thereunder and rulings issued by the
Internal Revenue Service, and, thus, to the extent provided in those rules, from time to time shall
include, without limitation, (A) direct and indirect ownership (e.g., a holding company would be
considered to beneficially own all stock owned or acquired by its subsidiaries), (B) ownership by
a holders family members and any group of persons acting pursuant to a formal or informal
understanding to make a coordinated acquisition of stock and (C) in certain cases, the ownership
of an Option (as defined below) to acquire GT Stock; and (v) an Option to acquire stock
includes 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 or
otherwise not currently exercisable.
If applicable, the Filer is represented by _________, Attn:____.
Respectfully submitted,
(Name of Filer)
By:________________________________
Name:______________________________
Address:____________________________
___________________________________
Telephone:__________________________
Facsimile:___________________________
Dated:______________________________
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 71 of 131
Exhibit 2
Equity Acquisition Notice
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 72 of 131
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
---------------------------------------------------------------
x
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF INTENT TO PURCHASE,
ACQUIRE OR OTHERWISE ACCUMULATE GT STOCK
PLEASE TAKE NOTICE that _____________ (the Filer) hereby provides notice (the
Notice) of its intention to purchase, acquire or otherwise accumulate one or more shares of
common stock in GT Advanced Technologies Inc. (GT Stock) or an Option (as defined below)
with respect to GT Stock (the Proposed Transfer).
PLEASE TAKE FURTHER NOTICE that the Filer currently beneficially owns
_______shares of GT Stock, which represents__% of the total amount of the GT Stock currently
outstanding.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Proposed Transfer, the Filer
proposes to purchase, acquire or otherwise accumulate ______ shares of GT Stock and/or
Options to acquire shares of GT Stock.
If the Proposed Transfer is permitted to occur, the Filer will beneficially own
shares of GT Stock.
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of the
Filer is ______.
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, the Filer
hereby declares that it has examined this Notice and accompanying attachments (if any), and, to
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 73 of 131
2
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.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, Pursuant To
Bankruptcy Code Sections 105(a) And 362, Establishing Notification Procedures And Approving
Restrictions On Certain Transfers Of Claims Against And Equity Interests In The Debtors Nunc
Pro Tunc To The Petition Date (the Order), this Notice is being filed with the Court and served
upon GTAT, GTATs counsel and the Committees counsel.
2
PLEASE TAKE FURTHER NOTICE that GTAT has fifteen (15) business days after
the filing of this Notice to object to the Proposed Transfer described herein. If GTAT files an
objection, such Proposed Transfer will not be effective unless approved by a final and
nonappealable order of the Court. If GTAT does not object within such fifteen (15) business day
period, or if the Debtors provide written authorization approving the Proposed Transfer prior to
the end of such fifteen (15) business day period, then such Proposed Transfer may proceed solely
as specifically described in this Notice.
PLEASE TAKE FURTHER NOTICE that any further transactions contemplated
by the Filer that may result in the Filer purchasing, acquiring or otherwise accumulating shares
of GT Stock (or Options with respect thereto) will each require an additional notice filed with the
Court to be served in the same manner as this Notice.
For purposes of this Notice, (i) beneficial ownership (or any variation thereof) of GT
Stock and Options to acquire GT Stock) shall be determined in accordance with applicable rules
under section 382 of the Internal Revenue Code of 1986, as amended, the U.S. Department of
Treasury regulations (Treasury Regulations) promulgated thereunder and rulings issued by the
Internal Revenue Service, and, thus, to the extent provided in those rules, from time to time shall
include, without limitation, (A) direct and indirect ownership (e.g., a holding company would be
considered to beneficially own all stock owned or acquired by its subsidiaries), (B) ownership by
a holders family members and any group of persons acting pursuant to a formal or informal
understanding to make a coordinated acquisition of stock and (C) in certain cases, the ownership
of an Option (as defined below) to acquire GT Stock; and (v) an Option to acquire stock
includes 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 or
otherwise not currently exercisable.
If applicable, the Filer is represented by _________, Attn:____.
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Order.
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 74 of 131
3
Respectfully submitted,
(Name of Filer)
By:________________________________
Name:______________________________
Address:____________________________
___________________________________
Telephone:__________________________
Facsimile:___________________________
Dated:______________________________
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 75 of 131
Exhibit 3
Equity Disposition Notice
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 76 of 131
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
---------------------------------------------------------------
x
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF INTENT TO SELL,
TRADE OR OTHERWISE TRANSFER GT STOCK
PLEASE TAKE NOTICE that _____________ (the Filer) hereby provides notice (the
Notice) of its intention to sell, trade or otherwise transfer shares of common stock in GT
Advanced Technologies Inc. (GT Stock) or an Option (as defined below) with respect to such
GT Stock (the Proposed Transfer).
PLEASE TAKE FURTHER NOTICE that the Filer currently beneficially owns
shares of GT Stock, which represents __% of the total amount of the GT Stock currently
outstanding.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Proposed Transfer, the Filer
proposes to sell, trade or otherwise transfer _____ shares of GT Stock and/or Options to acquire
shares of GT Stock. The following table sets forth a summary of the description and the timing
of the proposed sale, trade, or other transfer.
Description Date to be Disposed
(Attached additional pages if necessary)
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 77 of 131
2
If the Proposed Transfer is permitted to occur, the Filer will own shares of GT
Stock and/or Options to acquire ____ shares of GT Stock.
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of the
Filer is ______.
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, the Filer hereby
declares that it has examined this Notice and 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.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, Pursuant To
Bankruptcy Code Sections 105(a) And 362, Establishing Notification Procedures And Approving
Restrictions On Certain Transfers Of Claims Against And Equity Interests In The Debtors Nunc
Pro Tunc To The Petition Date (the Order), this Notice is being filed with the Court and served
upon GTAT, GTATs counsel and the Committees counsel.
2
PLEASE TAKE FURTHER NOTICE that GTAT has fifteen (15) business days after
the filing of this Notice to object to the Proposed Transfer described herein. If GTAT files an
objection, such Proposed Transfer will not be effective unless approved by a final and
nonappealable order of the Court. If GTAT does not object within such fifteen (15) business day
period, or if the Debtors provide written authorization approving the Proposed Transfer prior to
the end of such fifteen (15) business day period, then such Proposed Transfer may proceed solely
as specifically described in this Notice.
PLEASE TAKE FURTHER NOTICE that any further transactions contemplated
by the Filer that may result in the Filer purchasing, acquiring or otherwise accumulating shares
of GT Stock (or Options with respect thereto) will each require an additional notice filed with the
Court to be served in the same manner as this Notice.
For purposes of this Notice, (i) beneficial ownership (or any variation thereof) of GT
Stock and Options to acquire GT Stock) shall be determined in accordance with applicable rules
under section 382 of the Internal Revenue Code of 1986, as amended, the U.S. Department of
Treasury regulations (Treasury Regulations) promulgated thereunder and rulings issued by the
Internal Revenue Service, and, thus, to the extent provided in those rules, from time to time shall
include, without limitation, (A) direct and indirect ownership (e.g., a holding company would be
considered to beneficially own all stock owned or acquired by its subsidiaries), (B) ownership by
a holders family members and any group of persons acting pursuant to a formal or informal
understanding to make a coordinated acquisition of stock and (C) in certain cases, the ownership
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Order.
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 78 of 131
3
of an Option (as defined below) to acquire GT Stock; and (v) an Option to acquire stock
includes 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 or
otherwise not currently exercisable.
If applicable, the Filer is represented by _________, Attn:____.
Respectfully submitted,
(Name of Filer)
By:________________________________
Name:______________________________
Address:____________________________
___________________________________
Telephone:__________________________
Facsimile:___________________________
Dated:______________________________
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 79 of 131
Exhibit 4
Substantial Claimholder Status Notice
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 80 of 131
2
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
--------------------------------------------------------------
x
:
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF SUBSTANTIAL CLAIMHOLDER STATUS
PLEASE TAKE NOTICE THAT _______ (the Filer) hereby provides notice (the
Notice) that the Filer is a Substantial Claimholder of Claims against GT Advanced
Technologies Inc. (GT) and its affiliated debtors as debtors in possession (collectively,
GTAT or the Debtors) in Case No. 14-____, currently pending before the United States
Bankruptcy Court for the District of New Hampshire.
PLEASE TAKE FURTHER NOTICE that the following table sets forth the
following information:
1. In the case of Claims that are owned directly by the Filer, the table sets forth (i)
the dollar amount of such Claims; and (ii) the date(s) on which such Claims were acquired.
2. In the case of Claims that are not owned directly by the Filer but are nonetheless
Beneficially Owned by the Filer, the table sets forth (i) the name(s) of each record or legal
owner of Claims that are Beneficially Owned (as defined below) by the Filer; (ii) the dollar
amount of such Claims; and (iii) the date(s) on which such Claims were acquired.
Class Name of Owner Dollar Amount Owned
2017 GT Notes
2020 GT Notes
(Attach additional pages if necessary)
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 81 of 131
3
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of the
Filer is ______ .
PLEASE TAKE FURTHER NOTICE that the Filer will provide GTAT with such
reasonable additional information pertaining to the Claims as GTAT shall request.
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, the Filer
hereby declares that it has examined this Notice and 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.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, Pursuant To
Bankruptcy Code Sections 105(a) And 362, Establishing Notification Procedures And
Approving Restrictions On Certain Transfers Of Claims Against And Equity Interests In The
Debtors Nunc Pro Tunc To The Petition Date (the Order), this Notice is being filed with the
Court and served upon GTAT, GTATs counsel and the Committees counsel.
2
This Notice is given in addition to, and not as a substitute for, any requisite notice under
Rule 3001(e) of the Federal Rules of Bankruptcy Procedure.
For purposes of this Notice:
(a) Beneficial Ownership shall be determined in accordance with applicable rules
under section 382 of the Internal Revenue Code of 1986, as amended, the U.S.
Department of Treasury regulations promulgated thereunder and rulings issued
by the Internal Revenue Service, and, thus, to the extent provided in those rules,
from time to time shall include, without limitation, (A) direct and indirect
ownership (e.g., a holding company would be considered to beneficially own all
stock owned or acquired by its subsidiaries); and (B) ownership by a holders
family members and any group of persons acting pursuant to a formal or
informal understanding to make a coordinated acquisition of stock; and (C) in
certain cases, the ownership of an Option to acquire Claims.
(b) Option means 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 or otherwise not currently exercisable.
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Order.
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 82 of 131
4
(c) Entity has the meaning given to it in Treasury Regulations section 1.382-3(a)
and shall include persons acting pursuant to a formal or informal understanding
among themselves to make a coordinated acquisition.
(d) 2017 GT Notes means the 3.00% Convertible Senior Notes maturing October
1, 2017.
(e) 2020 GT Notes means the 3.00% Convertible Senior Notes maturing
December 15, 2020.
(f) Claim means any unsecured claim under which any of the Debtors is the
obligor, including the 2017 GT Notes and the 2020 GT Notes. In making this
determination, in the case of a secured claim, that portion of the claim (including
such portion attributable to accrued and unpaid interest) that exceeds the current
fair market value of the security shall be considered an unsecured Claim. In
calculating the amount of any Claims under the Procedures, any applicable
intercreditor agreements, including subordination agreements, shall be given
effect in accordance with their terms.
(g) Substantial Claimholder means any person or Entity that Beneficially Owns,
or any Entity controlled by such person or Entity through which such person or
Entity Beneficially Owns, a dollar amount of Claims of more than the Threshold
Amount.
(h) Threshold Amount. Threshold Amount means, initially, $20,615,000, which
amount may be subsequently increased or decreased as GTAT may determine to
be appropriate in the Notice of 382(1)(5) Plan or thereafter in compliance with
the Orders.
If applicable, the Filer is represented by _________, Attn:____.
Respectfully submitted,
(Name of Filer)
By:_______________________________
Name:_____________________________
Address:___________________________
__________________________________
Telephone:_________________________
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 83 of 131
5
Facsimile:__________________________
Dated:_____________________________
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 84 of 131
6
Exhibit 5
Claims Acquisition Notice
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 85 of 131
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
---------------------------------------------------------------
x
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF INTENT TO PURCHASE, ACQUIRE
OR OTHERWISE ACCUMULATE A CLAIM
PLEASE TAKE NOTICE THAT ________ (the Filer) hereby provides notice (the
Notice) of (i) its intent to purchase, acquire or otherwise accumulate directly a Claim or
Claims against GT Advanced Technologies Inc. (GT) and its affiliated debtors as debtors in
possession (collectively, GTAT or the Debtors) and/or (ii) a proposed purchase or
acquisition of Claims that, following the proposed acquisition, would be Beneficially Owned
by the Filer (any proposed transaction described in (i) or (ii), a Proposed Transfer).
PLEASE TAKE FURTHER NOTICE THAT, if applicable, on ______, the Filer
filed a Notice of Substantial Claimholder Status with the Court and served copies thereof on
GTAT, GTATs counsel and the Committees counsel.
PLEASE TAKE FURTHER NOTICE THAT the Filer is filing this notice as (check
one):
A Substantial Claimholder
A person or Entity that would, upon consummation of the Proposed Transfer, become
a Substantial Claimholder
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 86 of 131
2
PLEASE TAKE FURTHER NOTICE that the following table sets forth the
following information:
1. In the case of Claims that are owned directly by the Filer, the table sets forth (i)
the dollar amount of such Claims; and (ii) the date(s) on which such Claims were acquired.
2. In the case of Claims that are not owned directly by the Filer but are nonetheless
Beneficially Owned by the Filer, the table sets forth (i) the name(s) of each record or legal
owner of Claims that are Beneficially Owned (as defined below) by the Filer; (ii) the dollar
amount of such Claims; and (iii) the date(s) on which such Claims were acquired.
Class Name of Owner Dollar Amount
Owned
Date(s) Acquired
2017 GT Notes
2020 GT Notes
(Attach additional pages if necessary)
PLEASE TAKE FURTHER NOTICE that the following table sets forth the
following information:
1. If the Proposed Transfer involves the purchase or acquisition of Claims directly
by the Filer, the following table sets forth (i) the dollar amount of Claims proposed to be
purchased or acquired; and (ii) the date(s) of such Proposed Transfer.
2. If the Proposed Transfer involves the purchase or acquisition of Claims by a
person or Entity other than the Filer, but the Proposed Transfer nonetheless would increase the
dollar amount of Claims that are Beneficially Owned by the Filer, the following table sets forth
(i) the name(s) of each such person or Entity that proposes to purchase or acquire such Claims;
(ii) the dollar amount of Claims to be so purchased or acquired; and (iii) the date(s) of such
Proposed Transfer.
Class Record/Legal Owner Dollar Amount to be
Acquired
Dates(s) of
Proposed
Transfer
2017 GT Notes
2020 GT Notes
(Attach additional pages if necessary)
PLEASE TAKE FURTHER NOTICE that if the Proposed Transfer involves a
purchase or acquisition of Claims directly by the Filer and such Proposed Transfer would result
in (i) an increase in the Beneficial Ownership of Claims by a person or Entity (other than the
Filer) that currently is a Substantial Claimholder or (ii) a person or Entity (other than the Filer)
becoming a Substantial Claimholder, the following table sets forth (w) the name of each such
person or Entity; (x) the dollar amount of Claims that are Beneficially Owned by such person
or Entity prior to the Proposed Transfer; (y) the dollar amount of Claims that would be
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 87 of 131
3
Beneficially Owned by such person or Entity immediately following the Proposed Transfer;
and (z) the date(s) of the Proposed Transfer.
Class Name of Owner Dollar Amount
Currently Owned
Dollar
Amount to
be Acquired
Dates(s) of
Proposed
Transfer
2017 GT Notes
2020 GT Notes
(Attach additional pages if necessary)
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of the
Filer is ______.
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, the Filer
hereby declares that it has examined this Notice and 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.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, Pursuant To
Bankruptcy Code Sections 105(a) And 362, Establishing Notification Procedures And
Approving Restrictions On Certain Transfers Of Claims Against And Equity Interests In The
Debtors Nunc Pro Tunc To The Petition Date (the Order), this Notice is being filed with the
Court and served upon GTAT, GTATs counsel and the Committees counsel.
2
PLEASE TAKE FURTHER NOTICE that the Filer hereby acknowledges that if the
Proposed Transfer is not approved in writing by the Debtors within fifteen (15) business days
after the filing of this Notice, such Proposed Transfer shall be deemed rejected and will not be
effective ab initio. If the Debtors provide written authorization approving the Proposed
Transfer prior to the end of such fifteen (15) business day period, then such Proposed Transfer
may proceed solely as specifically described in this Notice.
PLEASE TAKE FURTHER NOTICE that any further transactions that may result in
the Filer increasing its Beneficial Ownership of Claims will each require an additional notice
filed with the Court to be served in the same manner as this Notice.
This Notice is given in addition to, and not as a substitute for, any requisite notice under
Rule 3001(e) of the Federal Rules of Bankruptcy Procedure.
For purposes of this Notice:
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Order.
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 88 of 131
4
(a) Beneficial Ownership shall be determined in accordance with applicable rules
under section 382 of the Internal Revenue Code of 1986, as amended, the U.S.
Department of Treasury regulations promulgated thereunder and rulings issued
by the Internal Revenue Service, and, thus, to the extent provided in those rules,
from time to time shall include, without limitation, (A) direct and indirect
ownership (e.g., a holding company would be considered to beneficially own all
stock owned or acquired by its subsidiaries); and (B) ownership by a holders
family members and any group of persons acting pursuant to a formal or
informal understanding to make a coordinated acquisition of stock; and (C) in
certain cases, the ownership of an Option to acquire Claims.
(b) Option means 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 or otherwise not currently exercisable.
(c) Entity has the meaning given to it in Treasury Regulations section 1.382-3(a)
and shall include persons acting pursuant to a formal or informal understanding
among themselves to make a coordinated acquisition.
(d) 2017 GT Notes means the 3.00% Convertible Senior Notes maturing October
1, 2017.
(e) 2020 GT Notes means the 3.00% Convertible Senior Notes maturing
December 15, 2020.
(f) Claim means any unsecured claim under which any of the Debtors is the
obligor, including the 2017 GT Notes and the 2020 GT Notes. In making this
determination, in the case of a secured claim, that portion of the claim (including
such portion attributable to accrued and unpaid interest) that exceeds the current
fair market value of the security shall be considered any unsecured Claim. In
calculating the amount of any Claims under the Procedures, any applicable
intercreditor agreements, including subordination agreements, shall be given
effect in accordance with their terms.
(g) Substantial Claimholder means any person or Entity that Beneficially Owns,
or any Entity controlled by such person or Entity through which such person or
Entity Beneficially Owns, a dollar amount of Claims of more than the Threshold
Amount.
(h) Threshold Amount. Threshold Amount means, initially, $20,615,000, which
amount may be subsequently increased or decreased as GTAT may determine to
be appropriate in the Notice of 382(1)(5) Plan or thereafter in compliance with
the Orders.
If applicable, the Filer is represented by _________, Attn:____.
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 89 of 131
5
Respectfully submitted,
(Name of Filer)
By:_______________________________
Name:_____________________________
Address:___________________________
__________________________________
Telephone:_________________________
Facsimile:__________________________
Dated:_____________________________
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 90 of 131
Exhibit 6
Election Notice
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 91 of 131
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
---------------------------------------------------------------
x
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF ELECTION AND CONSENT UNDER THE INTERIM ORDER
PURSUANT TO SECTIONS 105 AND 362 OF THE BANKRUPTCY CODE
ESTABLISHING NOTIFICATION PROCEDURES AND APPROVING
RESTRICTIONS ON CERTAIN TRANSFERS OF CLAIMS AGAINST AND
INTERESTS IN DEBTORS ESTATES
PLEASE TAKE NOTICE that [Name of person or Entity
2
] (the Filer)
herewith elects to become an Electing Claimholder under the Interim Order Pursuant to
Sections 105(a) and 362 of the Bankruptcy Code Establishing Notification Procedures and
Approving Restrictions on Certain Transfers of Claims Against and Interests in the Debtors
Estates (the Order) and agrees to be bound by the terms set forth therein and below.
3
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of
the Filer is ______________.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, this Notice is
being filed with the Court and served upon GTAT, GTATs counsel, and the Committees
counsel.
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
For this purpose an Entity shall have the meaning set forth in section 1.382-3(a) of the Treasury
Regulations.
3
Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms
in the Order.
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 92 of 131
2
PLEASE TAKE FURTHER NOTICE that, in the event that the Debtors deliver
notice (a Sell-Down Notice) that an Electing Claimholder must sell, cause to sell, or
otherwise transfer all or a portion of its beneficial ownership of the excess of (x) the amount of
Claims beneficially owned by such Electing Claimholder over (y) such Electing Claimholders
Maximum Amount to unrelated transferees each of which does not own immediately prior to
such transfer, and will not own after the contemplated consummation of such transfer, an
Excess Amount with respect to such transferee, then the Electing Claimholder shall sell, cause
to sell, or otherwise transfer the portion of the Excess Amount specified in the Sell-Down
Notice, prior to the Sell-Down date.
PLEASE TAKE FURTHER NOTICE that the Electing Claimholder agrees not
to sell, cause to sell, or otherwise transfer Claims to any transferee if the Electing Claimholder
has a reasonable basis to believe that (1) such transferee is or would become as a result of such
sale or transfer a Substantial Claimholder, and (2) the transferee is an Electing Claimholder. In
effecting any sale or other transfer of Claims pursuant to a Sell-Down Notice, an Electing
Claimholder shall, to the extent that it is reasonably feasible to do so within normal constraints
of the market in which such sale takes place, notify the acquirer of such Claims of the existence
of the Order and the Equity Forfeiture Provision (it being understood that, in all cases in which
there is direct communication between a sales person and a customer, including, without
limitation, communication via telephone, e-mail and instant messaging, the existence of the
Order and the Equity Forfeiture Provision shall be included in such sales persons summary of
the transaction).
PLEASE TAKE FURTHER NOTICE that, until the date that the Electing
Claimholder has sold, caused to sell or otherwise transferred that portion of the Excess Amount
specified in the Sell-Down Notice, the Electing Claimholder (either directly or through its
advisors) shall not participate in formulating any chapter 11 plan or reorganization of or on
behalf of the Debtors; provided, however, that the following activities shall not constitute
participation in formulating a plan of reorganization if, in pursuing such activities, the relevant
Electing Claimholder does not disclose or otherwise make evident (unless compelled to do so
by a court of competent jurisdiction or some other applicable legal requirement) to the Debtors
that such Electing Claimholder has beneficial ownership of Newly Traded Claims: filing an
objection to a proposed disclosure statement or to confirmation of a proposed plan of
reorganization; voting to accept or reject a proposed plan of reorganization; reviewing or
commenting on a proposed business plan; providing information on a confidential basis to the
attorneys for the Debtors; general membership on an official committee or an ad hoc
committee; or taking any action required by the order of the Court.
PLEASE TAKE FURTHER NOTICE that the Electing Claimholder
acknowledges and agrees that, as sanction for violating the Electing Claimholders obligations
under this election, the Electing Claimholder may be subject to the Equity Forfeiture Provision
under the Order.
PLEASE TAKE FURTHER NOTICE that the Electing Claimholder
acknowledges and agrees to provide a Notice of Compliance to the Debtors and Debtors
counsel within five (5) business days after the later of (i) entry of an order approving the
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 93 of 131
3
382(l)(5) Plan, (ii) the Sell-Down Date and (iii) such other date specified in the Sell-Down
Notice (but in any event before the effective date of the 382(l)(5) Plan) that such Electing
Claimholder has complied fully with the terms and conditions set forth in this Notice and the
Sell-Down Notice.
PLEASE TAKE FURTHER NOTICE that this Notice is given in addition to,
and not as a substitute for, any requisite notice under Rule 3001(e) of the Federal Rules of
Bankruptcy Procedure.
If applicable, the Filer is represented by _________, Attn:____.
Respectfully submitted,
(Name of Filer)
By:_______________________________
Name:_____________________________
Address:___________________________
__________________________________
Telephone:_________________________
Facsimile:__________________________
Dated:_____________________________
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4
Exhibit 7
Notice of Compliance
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
---------------------------------------------------------------
x
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF COMPLIANCE WITH SELL-DOWN NOTICE
PLEASE TAKE NOTICE that [person or Entity
2
] (the Filer) hereby provides
notice (the Notice) that the Filer has complied in full with the terms and conditions set forth
in the Interim Order Pursuant to Sections 105(a) and 362 of the Bankruptcy Code Establishing
Notification Procedures and Approving Restrictions on Certain Transfers of Claims Against
and Interests in the Debtors Estates (the Order), as further set forth in the Sell-Down Notice
issued to the Filer, such that the Filer does not and will not beneficially own an Excess Amount
of Claims as of the Sell-Down Date and at all times through the effective date of the 382(l)(5)
Plan.
3
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of
the Filer is ______________.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, this Notice is
being filed with the Court and served upon the Debtors, the Debtors counsel, and the
Creditors Committees counsel.
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
For the purpose an Entity shall have the meaning set form in section 1.382-3(a) of the Treasury
Regulations.
3
Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms
in the Order.
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 96 of 131
2
PLEASE TAKE FURTHER NOTICE that this Notice is given in addition to,
and not as a substitute for, any requisite notice under Rule 3001(e) of the Federal Rules of
Bankruptcy Procedure.
If applicable, the Filer is represented by _________, Attn:____.
Respectfully submitted,
(Name of Filer)
By:_______________________________
Name:_____________________________
Address:___________________________
__________________________________
Telephone:_________________________
Facsimile:__________________________
Dated:_____________________________
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3
Exhibit C
Interim Procedures Notice
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 98 of 131
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
---------------------------------------------------------------
x
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Joint Administration Requested
NOTICE ESTABLISHING INTERIM NOTIFICATION PROCEDURES AND
RESTRICTIONS ON CERTAIN TRANSFERS AND DISPOSITIONS OF CLAIMS
AGAINST AND INTERESTS IN THE DEBTORS ESTATES
TO ALL PERSONS OR ENTITIES WITH EQUITY INTERESTS IN GT ADVANCED
TECHNOLOGIES INC. AND HOLDERS OF SUBSTANTIAL CLAIMS:
2
PLEASE TAKE NOTICE that on ______ (the Petition Date), GT Advanced
Technologies Inc. (GT) and its affiliated debtors as debtors in possession in the above-
captioned cases (collectively, GTAT or the Debtors) commenced a case under chapter 11
of title 1 of the United States Code (the Bankruptcy Code) in the United States Bankruptcy
Court for the District of New Hampshire (the Court). Section 362(a) of the Bankruptcy Code
operates as a stay of any act to obtain possession of property of GTATs estates or to exercise
control over property of GTATs estates.
PLEASE TAKE FURTHER NOTICE that on ______, the Court entered the Interim
Order, Pursuant To Bankruptcy Code Sections 105(a) And 362, Establishing Notification
Procedures And Approving Restrictions On Certain Transfers Of Claims Against And Equity
Interests In The Debtors Nunc Pro Tunc To The Petition Date (the Order) (i) finding that
GTATs net operating loss carryforwards (NOLs) and certain other tax attributes (together
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Debtors Ex Parte Motion For Entry Of Order, Pursuant To Bankruptcy Code Sections 105(a) And 362,
Establishing Notification Procedures And Approving Restrictions On Certain Transfers Of Claims
Against And Equity Interests In The Debtors Nunc Pro Tunc To The Petition Date (the Motion).
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 99 of 131
2
with the NOLs, the Tax Attributes) are property of GTATs estates and are protected by
section 362(a) of the Bankruptcy Code; (ii) finding that trading in or disposition of common
stock of GT (GT Stock), or options to acquire such stock, and/ or claims against GTAT could
severely limit GTATs ability to use the Tax Attributes for purposes of the Internal Revenue
Code of 1986, as amended (the Tax Code), both during the pendency of the bankruptcy cases
and following the effective date of a plan of reorganization, and (iii) approving the procedures
set forth below to preserve the Tax Attributes pursuant to sections 105(a) and 362(a) of the
Bankruptcy Code.
ANY ACQUISITION IN VIOLATION OF THE RESTRICTIONS SET FORTH
BELOW SHALL BE NULL AND VOID AB I NI TI OAS AN ACT IN VIOLATION OF
THE AUTOMATIC STAY UNDER SECTIONS 105(a) AND 362 OF THE
BANKRUPTCY CODE.
PLEASE TAKE FURTHER NOTICE that the following procedures and restrictions
have been approved by the Court and shall apply to (a) holding and trading in GT Stock, and
(b) holding and trading in claims against GTAT:
(a) GT StockOwnership, Acquisition, andDisposition
(i) Notice of Substantial GT Stock Ownership. Any person or entity (as
such latter term is defined in section 1.382-3(a) of the Treasury
Regulations, including persons acting pursuant to a formal or informal
understanding among themselves to make a coordinated acquisition, an
Entity) that beneficially owns, at any time on or after the Petition Date,
GT Stock (as hereinafter defined) in an amount sufficient to qualify such
person or Entity as a Substantial Equityholder (as hereinafter defined)
shall file with the Court, and serve upon GTAT, GTATs proposed
counsel, and the counsel for any statutory committee of unsecured
creditors appointed in these cases (the Committee), a Notice of
Substantial Stock Ownership (a Substantial Ownership Notice), in the
form attached as Exhibit 1 to the Orders, which describes specifically
and in detail the GT Stock ownership of such person or Entity, on or
before the date that is the later of: (a) ten (10) business days after the
entry of the Interim Order or the Final Order, as applicable, and (b) ten
(10) business days after that person or Entity qualifies as a Substantial
Equityholder. At the election of the Substantial Equityholder, the
Substantial Ownership Notice to be filed with the Court (but not such
notice served upon GTAT, GTATs proposed counsel and the
Committees counsel) may be redacted to exclude the Substantial
Equityholders taxpayer identification number and the number of shares
of GT Stock that the Substantial Equityholder beneficially owns.
(ii) Acquisition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer of equity securities (including
Options, as hereinafter defined, to acquire such securities) that would
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 100 of 131
3
result in an increase in the amount of GT Stock beneficially owned by
any person or Entity that currently is or subsequently becomes a
Substantial Equityholder or that would result in a person or Entity
becoming a Substantial Equityholder (a Proposed Equity Acquisition
Transaction), such person, Entity or Substantial Equityholder (a
Proposed Equity Transferee) shall file with the Court, and serve upon
GTAT, GTATs proposed counsel, and the Committees counsel, a
Notice of Intent to Purchase, Acquire, or Otherwise Accumulate GT
Stock (an Equity Acquisition Notice), in the form annexed as Exhibit 2
to the Orders, which describes specifically and in detail the proposed
transaction in which GT Stock is to be acquired. At the election of the
Proposed Equity Transferee, the Equity Acquisition Notice that is filed
with the Court (but not such notice served upon GTAT, GTATs
proposed counsel and the Committees counsel) may be redacted to
exclude the Proposed Equity Transferees taxpayer identification number
and the number of shares of GT Stock that the Proposed Equity
Transferee beneficially owns and proposes to purchase or otherwise
acquire.
(iii) Disposition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer or other disposition of equity
securities (including Options to acquire such securities) that would result
in a decrease in the amount of GT Stock beneficially owned by a
Substantial Equityholder or that would result in a person or Entity
ceasing to be a Substantial Equityholder (a Proposed Equity Disposition
Transaction, and together with a Proposed Equity Acquisition
Transaction, a Proposed Equity Transaction), such person, Entity, or
Substantial Equityholder (a Proposed Equity Transferor) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a Notice of Intent to Sell, Trade, or Otherwise
Transfer GT Stock (an Equity Disposition Notice, and together with an
Equity Acquisition Notice, an Equity Trading Notice), in the form
annexed as Exhibit 3 to the Orders, which describes specifically and in
detail the proposed transaction in which GT Stock would be transferred.
At the election of the Proposed Equity Transferor, the Equity Disposition
Notice that is filed with the Court (but not such notice served upon
GTAT, GTATs proposed counsel and the Committees counsel) may be
redacted to exclude the Proposed Equity Transferors taxpayer
identification number and the number of shares of GT Stock that the
Proposed Equity Transferor beneficially owns and proposes to sell or
otherwise transfer.
(iv) Objection Procedures. GTAT and the Committee shall have fifteen (15)
business days after the filing of an Equity Trading Notice (the Equity
Objection Deadline) to file with the Court and serve on a Proposed
Equity Transferee or a Proposed Equity Transferor, as the case may be,
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4
an objection to any proposed transfer of equity securities (including
Options to acquire such securities) described in such Equity Trading
Notice on the grounds that such transfer may adversely affect GTATs
ability to utilize the Tax Attributes (an Equity Objection) as a result of
an ownership change under Section 382.
(1) If GTAT or the Committee files an Equity Objection by the
Equity Objection Deadline, then the Proposed Equity Transaction
shall not be effective unless approved by a final and
nonappealable order of this Court.
(2) If GTAT or the Committee do not file an Equity Objection by the
Equity Objection Deadline, or if GTAT and the Committee
provide written authorization to the Proposed Equity Transferee
or the Proposed Equity Transferor, as the case may be, approving
the Proposed Equity Transaction, prior to the Equity Objection
Deadline, then such Proposed Equity Transaction may proceed
solely as specifically described in the Equity Trading Notice.
(v) Additional Acquisitions. Any additional transaction within the scope of
paragraphs (a)(ii) or (a)(iii) above must be the subject of an additional
notice as set forth herein with the applicable waiting period.
(vi) Definitions. For purposes of this Motion and the Proposed Order, the
following terms have the following meanings:
(1) Substantial Equityholder. A Substantial Equityholder is any
person or Entity that beneficially owns, or any Entity controlled
by such person or Entity through which such person or Entity
beneficially owns, at least 4.75% of all issued and outstanding
shares of GT Stock.
(2) Beneficial Ownership. Beneficial ownership (or any variation
thereof of GT Stock and Options to acquire GT Stock) shall be
determined in accordance with applicable rules under Section
382, the Treasury Regulations promulgated thereunder and
rulings issued by the Internal Revenue Service, and, thus, to the
extent provided in those rules, from time to time shall include,
without limitation, (A) direct and indirect ownership (e.g., a
holding company would be considered to beneficially own all
stock owned or acquired by its subsidiaries), (B) ownership by a
holders family members and any group of persons acting
pursuant to a formal or informal understanding to make a
coordinated acquisition of stock, and (C) to the extent provided in
Treasury Regulations section 1.382-4, the ownership of an
Option to acquire GT Stock.
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 102 of 131
5
(3) Option. An Option to acquire stock includes 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 or otherwise not currently exercisable.
(4) GT Stock. GT Stock shall mean all common stock of GT. For
the avoidance of doubt, by operation of the definition of
beneficial ownership, an owner of an Option to acquire GT Stock
may be treated as the owner of such GT Stock.
(b) TradinginClaimsof GTAT
(i) Notice of Substantial Claimholder Status; Notice of 382(l)(5) Plan.
(1) Any person or Entity (as such term is defined in Treasury
Regulations section 1.382-3(a), including persons acting pursuant
to a formal or informal understanding among themselves to make
a coordinated acquisition) that currently is or becomes a
Substantial Claimholder (as hereinafter defined) shall file with
the Court and serve upon GTAT, GTATs proposed counsel, and
the Committees counsel, a notice of such status (a Notice of
Substantial Claimholder Status), in the form annexed to the
Orders as Exhibit 4, within ten (10) business days of the later of
(A) the entry of the Interim Order or the Final Order, as
applicable and (B) the date on which such person or Entity
becomes a Substantial Claimholder. At the election of the
Substantial Claimholder, the Notice of Substantial Claimholder
Status that is filed with the Court (but not the Notice of
Substantial Claimholder Status that is served upon GTAT,
GTATs proposed counsel, and the Committees counsel) may be
redacted to exclude the Substantial Claimholders taxpayer
identification number and the aggregate dollar amount of Claims
(as hereinafter defined) that the Substantial Claimholder
beneficially owns.
(2) Upon filing a plan and disclosure statement that contemplates the
potential utilization of section 382(1)(5) of the Tax Code (the
382(1)(5) Plan), GTAT shall (A) publish (or arrange for
publication of) a notice and provide a written notice to the Notice
Parties and Electing Claimholders (each as hereinafter defined),
disclosing the filing of such 382(1)(5) Plan and the potential
issuance of a Sell-Down Notice (as hereinafter defined) in
connection therewith on the website to be established by the
Debtors claims and noticing agent (the Claims and Noticing
Agent) and in the national edition of The Wall Street Journal (a
Notice of 382(1)(5) Plan), (B) identify the Threshold Amount
(as hereinafter defined) of Claims for status as a Substantial
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6
Claimholder and (C) request from each Electing Claimholder
(including a Deemed Electing Claimholder (as hereinafter
defined)) updated information regarding the aggregate amount of
Claims beneficially owned by such Electing Claimholder, which
updated information shall be delivered by such Electing
Claimholder to the Debtors within ten (10) business days of
receipt of the request therefor or, in the case of a Deemed
Electing Claimholder, ten (10) business days of the date of the
Notice of 382(1)(5) Plan.
For the avoidance of doubt, GTAT shall have no obligation under
the Orders to provide notice to any Deemed Electing Claimholder
of the matters set forth in this Paragraph (b)(i)(2), and the lack of
such notice shall not limit the obligation of a Deemed Electing
Claimholder to comply with the requirements of a Sell-Down
Notice (as hereinafter defined) or affect the application of the
Equity Forfeiture Provision (as hereinafter defined) with respect
to such Deemed Electing Claimholder.
(3) GTAT shall disclose the Threshold Amount in the Notice of
382(1)(5) Plan as of the date of the Notice of 382(1)(5) Plan
based on then available information, including any change in the
Threshold Amount. GTAT may adjust the Threshold Amount
based on the updated information from Electing Claimholders
pursuant to paragraph (b)(i)(2) herein. If the Threshold Amount is
adjusted, GTAT shall provide a notice of such adjusted amount in
the same manner as the Notice of 382(1)(5) Plan and such notice
shall be treated as an amended Notice of 382(1)(5) Plan, thereby
requesting updated information from each Electing Claimholder
and Deemed Electing Claimholder.
(ii) Advance Approval of Acquisition Provisions.
(1) Acquisition of Claims. Except as provided in paragraph (b)(v)
and the Electing Claimholder provisions in paragraph (b)(iii)
herein, at least twenty (20) business days prior to the proposed
date of any transfer of Claims that would result in (A) an increase
in the dollar amount of Claims beneficially owned by a
Substantial Claimholder or (B) any person or Entity becoming a
Substantial Claimholder (a Proposed Claims Acquisition
Transaction), such person, Entity, or Substantial Claimholder (a
Proposed Claims Transferee) may file with the Court and serve
upon GTAT, GTATs proposed counsel, and the Committees
counsel, a Notice of Request to Purchase, Acquire, or Otherwise
Accumulate a Claim (a Claims Acquisition Request), in the
form annexed to the Orders as Exhibit 5, which describes in
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7
detail the intended acquisition of Claims, regardless of whether
such transfer would be subject to the filing, notice, and hearing
requirements set forth in Bankruptcy Rule 3001. At the Proposed
Claims Transferees election, the Claims Acquisition Request
that is filed with the Court (but not the Claims Acquisition
Request that is served upon GTAT, GTATs proposed counsel,
and the Committees counsel) may be redacted to exclude the
Proposed Claims Transferees taxpayer identification number and
the aggregate dollar amount of Claims the Proposed Claims
Transferee beneficially owns and proposes to purchase or
otherwise acquire.
(2) Approval Procedures. GTAT may determine, in furtherance of
the purposes of the Procedures and in consultation with counsel
for the Committee, whether or not to approve a Claims
Acquisition Request. If GTAT does not approve a Claims
Acquisition Request in writing within fifteen (15) business days
after the Claims Acquisition Request is filed with the Court, the
Claims Acquisition Request shall be deemed rejected. In the
event a Proposed Claims Transferees request is rejected prior to
the date of a Notice of 382(1)(5) Plan, and the Proposed Claims
Transferee still desires to pursue the Proposed Claims
Acquisition Transaction, the Proposed Claims Transferee is
subject to, and may avail itself of, the Electing Claimholders
provisions in paragraph (b)(iii) below.
(iii) Electing Claimholders.
(1) Any person or Entity generally may trade freely and make a
market in Claims without having to obtain advance approval as
otherwise required under paragraph (b)(ii) herein (the Advance
Approval of Acquisition Provisions) if such person or Entity
makes an election pursuant to, and abides by the provisions of,
this Paragraph (b)(iii). In order to make such election, a person
or Entity shall file with the Court and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, an election
notice, in the form annexed to the Orders as Exhibit 6 (the
Election Notice), within ten (10) business days after the later of
(A) the date of the first purchase or acquisition of, or other
increase in the beneficial ownership (as hereinafter defined) of,
Claims by a Substantial Claimholder following the entry of the
Interim Order or the Final Order, as applicable, and (B) the date
of any purchase or acquisition of, or other increase in the
beneficial ownership of, Claims that causes such person or Entity
to become a Substantial Claimholder. The filing or service of
such Election Notice shall constitute acceptance of the terms and
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8
conditions set forth in the Election Notice and in this paragraph
(b)(iii) by a person or Entity who files or serves such Election
Notice (an Electing Claimholder). An Electing Claimholder
shall remain subject to the initial notice requirements of
paragraph (b)(i) herein.
(2) To permit reliance by GTAT on Treasury Regulations section
1.382-9(d)(3), any Electing Claimholder shall not participate in
formulating any chapter 11 plan of reorganization of or on behalf
of GTAT (which shall include, without limitation, making any
suggestions or proposals to GTAT or its advisors with regard to
such a plan); provided, however, that the following activities
shall not constitute participation in formulating a plan of
reorganization if; in pursuing such activities, the Electing
Claimholder does not disclose or otherwise make evident (unless
compelled to do so by an order of a court of competent
jurisdiction or some other applicable legal requirement) to
GTAT that such Electing Claimholder has beneficial ownership
of Newly Traded Claims (as hereinafter defined): filing an
objection to a proposed disclosure statement or to confirmation of
a proposed plan of reorganization; voting to accept or reject a
proposed plan of reorganization; reviewing or commenting on a
proposed business plan; providing information on a confidential
basis to the attorneys for GTAT; general membership on an
official committee or an ad hoc committee; or taking any action
required by the order of the Court.
(3) Following the issuance of a Notice of 382(1)(5) Plan, if GTAT
determines it to be reasonably necessary to require the sale or
transfer of all or a portion of the beneficial ownership of Claims
by an Electing Claimholder on the basis that such sale or transfer
is appropriate to reasonably ensure that the requirements of
section 382(1)(5) of the Tax Code will be satisfied, GTAT may
request, after notice to each Electing Claimholder and the
Committee and a hearing, that the Court enter an order approving
the issuance of a notice (the Sell-Down Notice) to the Electing
Claimholder that such Electing Claimholder must sell, cause to
sell, or otherwise transfer all or a portion of its beneficial
ownership of Claims (by class or other applicable breakdown) in
excess of (A) the amount of Claims beneficially owned by such
Electing Claimholder over (B) the Maximum Amount (as
hereinafter defined) for such Electing Claimholder (such excess
amount, an Excess Amount). If the Court approves GTATs
issuance of a Sell-Down Notice, the Debtors may provide the
Sell-Down Notice to the relevant Electing Claimholders.
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9
Prior to (A) the effective date of the 382(1)(5) Plan or (B) such
earlier date specified by GTAT but no earlier than the day after
the entry of the order confirming the 382(1)(5) Plan (the Sell-
Down Date), each Electing Claimholder shall sell, cause to sell,
or otherwise transfer an amount of the beneficial ownership of
Claims (if any) necessary to comply with the Sell-Down Notice
(the Sell-Down); provided, however, that notwithstanding
anything to the contrary in the Order, no Electing Claimholder
shall be required to sell, cause to sell, or otherwise transfer any
beneficial ownership of Claims if such sale would result in the
Electing Claimholder having beneficial ownership of an
aggregate amount of Claims (by class or other applicable
breakdown) that is less than such Electing Claimholders
Protected Amount (as hereinafter defined). Each Electing
Claimholder shall sell, cause to sell, or otherwise transfer its
beneficial ownership of Claims subject to the Sell-Down to
Permitted Transferees (as hereinafter defined); provided,
however, that such Electing Claimholder shall not have a
reasonable basis to believe that any such Permitted Transferee
would own, immediately after the contemplated transfer, an
Excess Amount of Claims.
An Electing Claimholder subject to the Sell-Down shall,
within five (5) business days after the later of (i) entry of an
order approving the 382(1)(5) Plan, (ii) the Sell-Down Date,
and (iii) such other date specified in the Sell-Down Notice, as
applicable, but before the effective date of the 382(1)(5) Plan,
and as a condition to receiving Affected Securities (as
hereinafter defined), serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a notice substantially
in the form annexed to the Orders as Exhibit 7 that such
Electing Claimholder has complied with the terms and
conditions set forth in this paragraph (b)(iii)(3) and that such
Electing Claimholder does not and will not hold an Excess
Amount of Claims as of the Sell-Down Date and at all times
through the effective date of the 382(1)(5) Plan (the Notice
of Compliance). Any Electing Claimholder who fails to
comply with this provision shall not receive Affected
Securities with respect to any Excess Amount of Claims.
(4) Except to the extent necessary to demonstrate to the Court the
need for the issuance of a Sell-Down Notice, other than
information contained in the Election Notices that is public or in
connection with an audit or other investigation by the IRS or
other taxing authority, GTAT shall keep all Election Notices and
any additional information provided by an Electing Claimholder
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10
pursuant to paragraph (b)(iii)(3) strictly confidential and shall not
disclose the identity of the Electing Claimholder to any other
person or Entity; provided, however, that GTAT may disclose the
identity of the Electing Claimholder to its counsel and
professional financial advisors and/or the counsel and
professional financial advisors of the Committee and of any
other person(s) that are subject to a nondisclosure agreement with
GTAT, each of whom shall keep all such notices strictly
confidential, subject to further order of the Court; and provided,
further, that to the extent GTAT reasonably determines such
confidential information is necessary to demonstrate to the Court
the need for the issuance of a Sell-Down Notice, such
confidential information (determined by, among other things,
whether such information was redacted in any public filing) shall
be filed under seal.
(5) Any proposed transfer or acquisition of Claims following the
issuance of a Notice of 382(1)(5) Plan shall be subject to the
Advance Approval of Acquisition Provisions set forth in
Paragraph (b)(ii) herein.
(6) Any Electing Claimholder that violates its obligations under an
Election Notice shall, pursuant to the Order, be precluded from
receiving, directly or indirectly, any consideration consisting of a
beneficial ownership of equity (including Options, as defined in
paragraph (a)(v)(3) herein) of GTAT (or any successor to GTAT,
including as determined for U.S. federal income tax purposes)
that is attributable to the Excess Amount of Claims for such
Electing Claimholder, including any consideration in lieu thereof;
provided, however, that such Electing Claimholder may be
entitled to receive any other consideration to which such Electing
Claimholder may be entitled by virtue of holding Claims (the
Equity Forfeiture Provision). Any purported acquisition of, or
other increase in the beneficial ownership of, equity of GTAT (or
any successor) that is precluded by the Equity Forfeiture
Provision will be an acquisition of Forfeited Equity. Any
acquirer of Forfeited Equity shall, immediately upon becoming
aware of such fact, return or cause to return the Forfeited Equity
to GTAT (or any successor to GTAT) or, if all of the equity
consideration properly issued to such acquirer and all or any
portion of such Forfeited Equity shall have been sold prior to the
time such acquirer becomes aware of such fact, such acquirer
shall return or cause to return to GTAT (or any successor to
GTAT) (A) any Forfeited Equity still held by such acquirer and
(B) the proceeds attributable to the sale of Forfeited Equity,
calculated by treating the most recently sold equity as Forfeited
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 108 of 131
11
Equity. Any acquirer that receives Forfeited Equity and
deliberately fails to comply with the preceding sentence shall be
subject to such additional sanctions as the Court may determine.
Any Forfeited Equity returned to GTAT shall be distributed
(including a transfer to charity) or extinguished, in GTATs sole
discretion, in furtherance of the 382(1)(5) Plan.
(7) In effecting any sale or other transfer of Claims pursuant to a
Sell- Down Notice, an Electing Claimholder shall, to the extent
that it is reasonably feasible to do so within the normal
constraints of the market in which such sale takes place, notify
the acquirer of such Claims of the existence of the Order and the
Equity Forfeiture Provision (it being understood that, in all cases
in which there is direct communication between a salesperson
and a customer, including, without limitation, communication
via telephone, e- mail, and instant messaging, the existence of the
Order and the Equity Forfeiture Provision shall be included in
such salespersons summary of the transaction).
(iv) Deemed Electing Claimholders; Sanctions.
(1) Notwithstanding the foregoing, effective as of the Petition Date
and until further order of the Court to the contrary, any person or
Entity that (A) is not a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of
Claims that causes such person or Entity to become a Substantial
Claimholder, or (B) is a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of
Claims, shall either comply with the Advance Approval of
Acquisition Provisions pursuant to paragraph (b)(ii) or, to the
extent permitted in Paragraph (b)(iii) herein, file an Election
Notice and thereby become an Electing Claimholder; provided,
however, that any such person or Entity that neither satisfies the
Advance Approval of Acquisition Provisions nor files a timely
Election Notice shall be deemed to have filed an Election Notice
on the Petition Date and to have become an Electing
Claimholder (a Deemed Electing Claimholder) for all purposes
of the Order (other than the issuance of a direct notice to Electing
Claimholders, whenever required). Deemed Electing
Claimholders shall be subject to all the obligations of Electing
Claimholders, including, without limitation, the requirement that
Electing Claimholders sell, cause to sell, or otherwise transfer all
or a portion of the beneficial ownership of Claims pursuant to a
Sell-Down Notice or be subject to the Equity Forfeiture
Provision. Nothing in this paragraph (b)(iv) shall be read to
relieve a Deemed Electing Claimholder of its obligations to
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12
notify GTAT of such Deemed Electing Claimholders status as a
Substantial Claimholder. Except as otherwise provided in the
Procedures, all references to an Electing Claimholder in the
Procedures and in the Order shall include a Deemed Electing
Claimholder.
(2) Effective as of the Petition Date, any purchase or acquisition of,
or other increase in the beneficial ownership of, Claims in
violation of the Orders by a Substantial Claimholder shall be
subject to such remedy as the Court may find to be appropriate
upon motion by GTAT, including, without limitation, ordering
such noncompliant Substantial Claimholder to divest itself
promptly of any beneficial ownership of Claims purchased or
otherwise acquired in violation of the Orders and monetary
damages for any costs incurred by GTAT in connection with the
enforcement of the Orders. For the avoidance of doubt, any
sanctions imposed by the Court on a noncompliant Substantial
Claimholder pursuant to this paragraph (b)(iv)(2) shall be in
addition to the consequences of treating such noncompliant
Substantial Claimholder as a Deemed Electing Claimholder for
all purposes of the Orders.
(v) Exception. No person or Entity shall be subject to the Advance
Approval of Acquisition Provisions of paragraph (b)(ii) herein or the
Electing Claimholders provisions of paragraph (b)(iii) herein with
respect to any transfer described in Treasury Regulations section 1.382-
9(d)(5)(ii); provided, however, that such transfer is not for a principal
purpose of obtaining stock in the reorganized GTAT (or any successor)
or permitting the transferee to benefit from the losses of GTAT within
the meaning of Treasury Regulations section 1.382-9(d)(5)(iii); and
provided, further, that any such transferee who becomes a Substantial
Claimholder shall file with the Court, and serve upon GTAT, GTATs
proposed counsel and the Committee counsel, a notice of such status, in
the form annexed to the Orders as Exhibit 4, within ten (10) business
days of the later of (i) the date of the entry of the Interim Order or the
Final Order, as applicable, by the Court and (ii) the date on which such
person or Entity becomes a Substantial Claimholder.
(vi) Definitions. For purposes of this Motion and the Orders, the following
terms have the following meanings:
(1) Applicable Percentage. Applicable Percentage means, if only
one class of Affected Securities is to be issued pursuant to the
terms of the 382(1)(5) Plan and holders within any class of
Claims will receive a pro rata distribution of the Affected
Securities, 4.75% of the number of such shares that the Debtors
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13
reasonably estimate will be issued at the effective date of such
382(1)(5) Plan, as determined for U.S. federal income tax
purposes. If more than one class of the common stock or any
other equity securities (including securities that are treated as
equity securities for U.S. federal income tax purposes) of the
reorganized Debtors (or any successor), including Options (the
Affected Securities), is to be distributed pursuant to the terms
of the 382(1)(5) Plan or holders within a class of Claims may
receive a disproportionate distribution of such securities relative
to other holders in the same class, the Applicable Percentage
shall be determined by GTAT in its reasonable judgment in a
manner consistent with the estimated range of values for the
equity to be distributed reflected in the valuation analysis set
forth in the 382(1)(5) Plan and disclosure statement, and shall be
expressed in a manner that makes clear the number of shares or
other interests in each class of Affected Securities that would
constitute the Applicable Percentage.
(2) Beneficial Ownership. Beneficial ownership of a Claim
means:
(x) the beneficial ownership of a Claim as determined in
accordance with applicable rules under Section 382, the Treasury
Regulations promulgated thereunder, and rulings issued by the
IRS (for such purpose, treating a Claim as if it is stock), and, to
the extent provided in those rules from time to time, shall include
(A) direct and indirect ownership (e.g., a holding company would
be considered to beneficially own all Claims owned or acquired
by its subsidiaries), and (B) ownership by a holders family
members and any group of persons acting pursuant to a formal or
informal understanding to make a coordinated acquisition of
Claims and/or stock; and
(y) the beneficial ownership of an Option (irrespective of the
purpose for which such Option was issued, created, or acquired).
(3) Claim. A Claim means any unsecured claim under which any
of the Debtors is the obligor, including the 2017 GT Notes and
the 2020 GT Notes. In making this determination, in the case of
a secured claim, that portion of the claim (including such portion
attributable to accrued and unpaid interest) that exceeds the
current fair market value of the security shall be considered an
unsecured Claim. In calculating the amount of any Claims under
the Procedures, any applicable intercreditor agreements,
including subordination agreements, shall be given effect in
accordance with their terms.
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14
(4) Entity. Entity has the meaning set forth in paragraph (b)(i)(l)
above.
(5) Maximum Amount. Maximum Amount means for each person
or Entity and by class or other applicable breakdown of Claims,
the greater of (A) the applicable Threshold Amount and (B) the
Protected Amount (as hereinafter defined) (if any) for such
Electing Claimholder.
(6) Newly Traded Claims. Newly Traded Claims means Claims (i)
with respect to which a person or Entity acquired beneficial
ownership after the date that was eighteen (18) months before the
Petition Date; and (ii) that are not ordinary course claims,
within the meaning of Treasury Regulations section 1.382-
9(d)(2)(iv), of which the same person or Entity has always had
beneficial ownership.
(7) Option. Option has the meaning given to such term under
Treasury Regulations section 1.382-4(d)(9)(i), with respect to the
acquisition of a Claim or any consideration (including equity)
distributed in respect of any Claim pursuant to a plan of
reorganization or applicable bankruptcy court order.
(8) Permitted Transferee. A Permitted Transferee with respect to
an Electing Claimholder is a person or Entity whose holding of a
Claim would not result in such Electing Claimholder having
beneficial ownership of such Claim.
(9) Protected Amount. Protected Amount means the amount of
Claims (by class or other applicable breakdown) of which a
holder had beneficial ownership on the Petition Date, increased
by the amount of Claims of which such holder acquires, directly
or indirectly, beneficial ownership pursuant to trades entered into
before the Petition Date that had not yet closed as of the Petition
Date minus the amount of Claims of which such holder sells,
directly or indirectly, beneficial ownership pursuant to trades
entered into before the Petition Date that had not yet closed as of
the Petition Date.
(10) Substantial Claimholder. A Substantial Claimholder means
any person or Entity that beneficially owns an aggregate dollar
amount of Claims against the Debtors, or any Entity controlled
by such person or Entity through which such person or Entity
beneficially owns Claims against the Debtors, of more than the
Threshold Amount.
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15
For the avoidance of doubt, Section 382, the Treasury
Regulations promulgated thereunder, and all relevant IRS and
judicial authority shall apply in determining whether the Claims
of several persons and/or Entities must be aggregated when
testing for Substantial Claimholder status, treating Claims as if
they were stock.
(11) Threshold Amount. Threshold Amount means, initially,
$20,615,000, which amount may be subsequently increased or
decreased as GTAT may determine to be appropriate in the
Notice of 382(1)(5) Plan or thereafter in compliance with the
Orders.
(12) 2017 GT Notes. 2017 GT Notes means the 3.00% Convertible
Senior Notes maturing October 1, 2017.
(13) 2020 GT Notes. 2020 GT Notes means the 3.00% Convertible
Senior Notes maturing December 15, 2020.
FAILURE TO FOLLOW THE PROCEDURES SET FORTH IN THIS NOTICE
WILL CONSTITUTE A VIOLATION OF THE AUTOMATIC STAY PRESCRIBED
BY SECTION 362 OF THE BANKRUPTCY CODE.
ANY PROHIBITED ACQUISITION, DISPOSITION OR OTHER TRANSFER
OF GT STOCK IN VIOLATION OF THE ORDER WILL BE NULL AND VOID AB
INITIO AND MAY LEAD TO CONTEMPT, COMPENSATORY DAMAGES,
PUNITIVE DAMAGES, OR SANCTIONS BEING IMPOSED BY THE COURT.
GTAT MAY WAIVE, IN WRITING, ANY AND ALL RESTRICTIONS, STAYS,
AND NOTIFICATION PROCEDURES CONTAINED IN THE ORDER.
PLEASE TAKE FURTHER NOTICE that the requirements set forth in this Notice
are in addition to the requirements of Bankruptcy Rule 3001(e) and applicable securities,
corporate, and other laws, and do not excuse compliance therewith.
PLEASE TAKE FURTHER NOTICE that a final hearing to determine whether the
procedures described herein will be approved on a final basis will be held on _______, 2014 at
__ .m. (E.T.).
Dated: [_____], 2014
Manchester, NH
_______________________________________
Daniel W. Sklar, Esq.
Holly J. Barcroft, Esq.
NIXON PEABODY LLP
900 Elm Street
Manchester, NH 03101-2031
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 113 of 131
16
Telephone: (603) 628-4000
Facsimile: (603) 628-4040
- and -
Luc A. Despins, Esq.
Andrew V. Tenzer, Esq.
James T. Grogan, Esq.
PAUL HASTINGS LLP
Park Avenue Tower
75 East 55th Street, First Floor
New York, New York 10022
Telephone: (212) 318-6000
Facsimile: (212) 319-4090
Proposed Co-Counsel for the Debtors and Debtors in
Possession
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 114 of 131
Exhibit D
Final Procedures Notice
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 115 of 131
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
---------------------------------------------------------------
x
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Joint Administration Requested
NOTICE ESTABLISHING FINAL NOTIFICATION PROCEDURES AND
RESTRICTIONS ON CERTAIN TRANSFERS AND DISPOSITIONS OF CLAIMS
AGAINST AND INTERESTS IN THE DEBTORS ESTATES
TO ALL PERSONS OR ENTITIES WITH EQUITY INTERESTS IN GT ADVANCED
TECHNOLOGIES INC. AND HOLDERS OF SUBSTANTIAL CLAIMS:
2
PLEASE TAKE NOTICE that on ______ (the Petition Date), GT Advanced
Technologies Inc. (GT) and its affiliated debtors as debtors in possession in the above-
captioned cases (collectively, GTAT or the Debtors) commenced a case under chapter 11
of title 1 of the United States Code (the Bankruptcy Code) in the United States Bankruptcy
Court for the District of New Hampshire (the Court). Section 362(a) of the Bankruptcy Code
operates as a stay of any act to obtain possession of property of GTATs estates or to exercise
control over property of GTATs estates.
PLEASE TAKE FURTHER NOTICE that on ______, the Court entered the Order,
Pursuant To Bankruptcy Code Sections 105(a) And 362, Establishing Notification Procedures
And Approving Restrictions On Certain Transfers Of Claims Against And Equity Interests In
The Debtors Nunc Pro Tunc To The Petition Date (the Order) (i) finding that GTATs net
operating loss carryforwards (NOLs) and certain other tax attributes (together with the
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Debtors Ex Parte Motion For Entry Of Order, Pursuant To Bankruptcy Code Sections 105(a) And 362,
Establishing Notification Procedures And Approving Restrictions On Certain Transfers Of Claims
Against And Equity Interests In The Debtors Nunc Pro Tunc To The Petition Date (the Motion).
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 116 of 131
2
NOLs, the Tax Attributes) are property of GTATs estates and are protected by section
362(a) of the Bankruptcy Code; (ii) finding that trading in or disposition common stock of GT
(GT Stock), or options to acquire such stock, and/ or claims against GTAT could severely
limit GTATs ability to use the Tax Attributes for purposes of the Internal Revenue Code of
1986, as amended (the Tax Code) both during the pendency of the bankruptcy cases and
following the effective date of a plan of reorganization, and (iii) approving the procedures set
forth below to preserve the Tax Attributes pursuant to sections 105(a) and 362(a) of the
Bankruptcy Code.
ANY ACQUISITION IN VIOLATION OF THE RESTRICTIONS SET FORTH
BELOW SHALL BE NULL AND VOID AB I NI TI OAS AN ACT IN VIOLATION OF
THE AUTOMATIC STAY UNDER SECTIONS 105(a) AND 362 OF THE
BANKRUPTCY CODE.
PLEASE TAKE FURTHER NOTICE that the following procedures and restrictions
have been approved by the Court and shall apply to (a) holding and trading in GT Stock, and
(b) holding and trading in claims against GTAT:
(a) GT StockOwnership, Acquisition, andDisposition
(i) Notice of Substantial GT Stock Ownership. Any person or entity (as
such latter term is defined in section 1.382-3(a) of the Treasury
Regulations, including persons acting pursuant to a formal or informal
understanding among themselves to make a coordinated acquisition, an
Entity) that beneficially owns, at any time on or after the Petition Date,
GT Stock (as hereinafter defined) in an amount sufficient to qualify such
person or Entity as a Substantial Equityholder (as hereinafter defined)
shall file with the Court, and serve upon GTAT, GTATs proposed
counsel, and the counsel for any statutory committee of unsecured
creditors appointed in these cases (the Committee), a Notice of
Substantial Stock Ownership (a Substantial Ownership Notice), in the
form attached as Exhibit 1 to the Orders, which describes specifically
and in detail the GT Stock ownership of such person or Entity, on or
before the date that is the later of: (a) ten (10) business days after the
entry of the Interim Order or the Final Order, as applicable, and (b) ten
(10) business days after that person or Entity qualifies as a Substantial
Equityholder. At the election of the Substantial Equityholder, the
Substantial Ownership Notice to be filed with the Court (but not such
notice served upon GTAT, GTATs proposed counsel and the
Committees counsel) may be redacted to exclude the Substantial
Equityholders taxpayer identification number and the number of shares
of GT Stock that the Substantial Equityholder beneficially owns.
(ii) Acquisition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer of equity securities (including
Options, as hereinafter defined, to acquire such securities) that would
Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 117 of 131
3
result in an increase in the amount of GT Stock beneficially owned by
any person or Entity that currently is or subsequently becomes a
Substantial Equityholder or that would result in a person or Entity
becoming a Substantial Equityholder (a Proposed Equity Acquisition
Transaction), such person, Entity or Substantial Equityholder (a
Proposed Equity Transferee) shall file with the Court, and serve upon
GTAT, GTATs proposed counsel, and the Committees counsel, a
Notice of Intent to Purchase, Acquire, or Otherwise Accumulate GT
Stock (an Equity Acquisition Notice), in the form annexed as Exhibit 2
to the Orders, which describes specifically and in detail the proposed
transaction in which GT Stock is to be acquired. At the election of the
Proposed Equity Transferee, the Equity Acquisition Notice that is filed
with the Court (but not such notice served upon GTAT, GTATs
proposed counsel and the Committees counsel) may be redacted to
exclude the Proposed Equity Transferees taxpayer identification number
and the number of shares of GT Stock that the Proposed Equity
Transferee beneficially owns and proposes to purchase or otherwise
acquire.
(iii) Disposition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer or other disposition of equity
securities (including Options to acquire such securities) that would result
in a decrease in the amount of GT Stock beneficially owned by a
Substantial Equityholder or that would result in a person or Entity
ceasing to be a Substantial Equityholder (a Proposed Equity Disposition
Transaction, and together with a Proposed Equity Acquisition
Transaction, a Proposed Equity Transaction), such person, Entity, or
Substantial Equityholder (a Proposed Equity Transferor) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a Notice of Intent to Sell, Trade, or Otherwise
Transfer GT Stock (an Equity Disposition Notice, and together with an
Equity Acquisition Notice, an Equity Trading Notice), in the form
annexed as Exhibit 3 to the Orders, which describes specifically and in
detail the proposed transaction in which GT Stock would be transferred.
At the election of the Proposed Equity Transferor, the Equity Disposition
Notice that is filed with the Court (but not such notice served upon
GTAT, GTATs proposed counsel and the Committees counsel) may be
redacted to exclude the Proposed Equity Transferors taxpayer
identification number and the number of shares of GT Stock that the
Proposed Equity Transferor beneficially owns and proposes to sell or
otherwise transfer.
(iv) Objection Procedures. GTAT and the Committee shall have fifteen (15)
business days after the filing of an Equity Trading Notice (the Equity
Objection Deadline) to file with the Court and serve on a Proposed
Equity Transferee or a Proposed Equity Transferor, as the case may be,
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4
an objection to any proposed transfer of equity securities (including
Options to acquire such securities) described in such Equity Trading
Notice on the grounds that such transfer may adversely affect GTATs
ability to utilize the Tax Attributes (an Equity Objection) as a result of
an ownership change under Section 382.
(1) If GTAT or the Committee files an Equity Objection by the
Equity Objection Deadline, then the Proposed Equity Transaction
shall not be effective unless approved by a final and
nonappealable order of this Court.
(2) If GTAT or the Committee do not file an Equity Objection by the
Equity Objection Deadline, or if GTAT and the Committee
provide written authorization to the Proposed Equity Transferee
or the Proposed Equity Transferor, as the case may be, approving
the Proposed Equity Transaction, prior to the Equity Objection
Deadline, then such Proposed Equity Transaction may proceed
solely as specifically described in the Equity Trading Notice.
(v) Additional Acquisitions. Any additional transaction within the scope of
paragraphs (a)(ii) or (a)(iii) above must be the subject of an additional
notice as set forth herein with the applicable waiting period.
(vi) Definitions. For purposes of this Motion and the Proposed Order, the
following terms have the following meanings:
(1) Substantial Equityholder. A Substantial Equityholder is any
person or Entity that beneficially owns, or any Entity controlled
by such person or Entity through which such person or Entity
beneficially owns, at least 4.75% of all issued and outstanding
shares of GT Stock.
(2) Beneficial Ownership. Beneficial ownership (or any variation
thereof of GT Stock and Options to acquire GT Stock) shall be
determined in accordance with applicable rules under Section
382, the Treasury Regulations promulgated thereunder and
rulings issued by the Internal Revenue Service, and, thus, to the
extent provided in those rules, from time to time shall include,
without limitation, (A) direct and indirect ownership (e.g., a
holding company would be considered to beneficially own all
stock owned or acquired by its subsidiaries), (B) ownership by a
holders family members and any group of persons acting
pursuant to a formal or informal understanding to make a
coordinated acquisition of stock, and (C) to the extent provided in
Treasury Regulations section 1.382-4, the ownership of an
Option to acquire GT Stock.
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5
(3) Option. An Option to acquire stock includes 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 or otherwise not currently exercisable.
(4) GT Stock. GT Stock shall mean all common stock of GT. For
the avoidance of doubt, by operation of the definition of
beneficial ownership, an owner of an Option to acquire GT Stock
may be treated as the owner of such GT Stock.
(b) TradinginClaimsof GTAT
(i) Notice of Substantial Claimholder Status; Notice of 382(l)(5) Plan.
(1) Any person or Entity (as such term is defined in Treasury
Regulations section 1.382-3(a), including persons acting pursuant
to a formal or informal understanding among themselves to make
a coordinated acquisition) that currently is or becomes a
Substantial Claimholder (as hereinafter defined) shall file with
the Court and serve upon GTAT, GTATs proposed counsel, and
the Committees counsel, a notice of such status (a Notice of
Substantial Claimholder Status), in the form annexed to the
Orders as Exhibit 4 within ten (10) business days of the later of
(A) the entry of the Interim Order or the Final Order, as
applicable and (B) the date on which such person or Entity
becomes a Substantial Claimholder. At the election of the
Substantial Claimholder, the Notice of Substantial Claimholder
Status that is filed with the Court (but not the Notice of
Substantial Claimholder Status that is served upon GTAT,
GTATs proposed counsel, and the Committees counsel) may be
redacted to exclude the Substantial Claimholders taxpayer
identification number and the aggregate dollar amount of Claims
(as hereinafter defined) that the Substantial Claimholder
beneficially owns.
(2) Upon filing a plan and disclosure statement that contemplates the
potential utilization of section 382(1)(5) of the Tax Code (the
382(1)(5) Plan), GTAT shall (A) publish (or arrange for
publication of) a notice and provide a written notice to the Notice
Parties and Electing Claimholders (each as hereinafter defined),
disclosing the filing of such 382(1)(5) Plan and the potential
issuance of a Sell-Down Notice (as hereinafter defined) in
connection therewith on the website to be established by the
Debtors claims and noticing agent (the Claims and Noticing
Agent) and in the national edition of The Wall Street Journal (a
Notice of 382(1)(5) Plan), (B) identify the Threshold Amount
(as hereinafter defined) of Claims for status as a Substantial
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6
Claimholder and (C) request from each Electing Claimholder
(including a Deemed Electing Claimholder (as hereinafter
defined)) updated information regarding the aggregate amount of
Claims beneficially owned by such Electing Claimholder, which
updated information shall be delivered by such Electing
Claimholder to the Debtors within ten (10) business days of
receipt of the request therefor or, in the case of a Deemed
Electing Claimholder, ten (10) business days of the date of the
Notice of 382(1)(5) Plan.
For the avoidance of doubt, GTAT shall have no obligation under
the Orders to provide notice to any Deemed Electing Claimholder
of the matters set forth in this Paragraph (b)(i)(2), and the lack of
such notice shall not limit the obligation of a Deemed Electing
Claimholder to comply with the requirements of a Sell-Down
Notice (as hereinafter defined) or affect the application of the
Equity Forfeiture Provision (as hereinafter defined) with respect
to such Deemed Electing Claimholder.
(3) GTAT shall disclose the Threshold Amount in the Notice of
382(1)(5) Plan as of the date of the Notice of 382(1)(5) Plan
based on then available information, including any change in the
Threshold Amount. GTAT may adjust the Threshold Amount
based on the updated information from Electing Claimholders
pursuant to paragraph (b)(i)(2) herein. If the Threshold Amount is
adjusted, GTAT shall provide a notice of such adjusted amount in
the same manner as the Notice of 382(1)(5) Plan and such notice
shall be treated as an amended Notice of 382(1)(5) Plan, thereby
requesting updated information from each Electing Claimholder
and Deemed Electing Claimholder.
(ii) Advance Approval of Acquisition Provisions.
(1) Acquisition of Claims. Except as provided in paragraph (b)(v)
and the Electing Claimholder provisions in paragraph (b)(iii)
herein, at least twenty (20) business days prior to the proposed
date of any transfer of Claims that would result in (A) an increase
in the dollar amount of Claims beneficially owned by a
Substantial Claimholder or (B) any person or Entity becoming a
Substantial Claimholder (a Proposed Claims Acquisition
Transaction), such person, Entity, or Substantial Claimholder (a
Proposed Claims Transferee) may file with the Court and serve
upon GTAT, GTATs proposed counsel, and the Committees
counsel, a Notice of Request to Purchase, Acquire, or Otherwise
Accumulate a Claim (a Claims Acquisition Request), in the
form annexed to the Orders as Exhibit 5, which describes in
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7
detail the intended acquisition of Claims, regardless of whether
such transfer would be subject to the filing, notice, and hearing
requirements set forth in Bankruptcy Rule 3001. At the Proposed
Claims Transferees election, the Claims Acquisition Request
that is filed with the Court (but not the Claims Acquisition
Request that is served upon GTAT, GTATs proposed counsel,
and the Committees counsel) may be redacted to exclude the
Proposed Claims Transferees taxpayer identification number and
the aggregate dollar amount of Claims the Proposed Claims
Transferee beneficially owns and proposes to purchase or
otherwise acquire.
(2) Approval Procedures. GTAT may determine, in furtherance of
the purposes of the Procedures and in consultation with counsel
for the Committee, whether or not to approve a Claims
Acquisition Request. If GTAT does not approve a Claims
Acquisition Request in writing within fifteen (15) business days
after the Claims Acquisition Request is filed with the Court, the
Claims Acquisition Request shall be deemed rejected. In the
event a Proposed Claims Transferees request is rejected prior to
the date of a Notice of 382(1)(5) Plan, and the Proposed Claims
Transferee still desires to pursue the Proposed Claims
Acquisition Transaction, the Proposed Claims Transferee is
subject to, and may avail itself of, the Electing Claimholders
provisions in paragraph (b)(iii) below.
(iii) Electing Claimholders.
(1) Any person or Entity generally may trade freely and make a
market in Claims without having to obtain advance approval as
otherwise required under paragraph (b)(ii) herein (the Advance
Approval of Acquisition Provisions) if such person or Entity
makes an election pursuant to, and abides by the provisions of,
this Paragraph (b)(iii). In order to make such election, a person
or Entity shall file with the Court and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, an election
notice, in the form annexed to the Orders as Exhibit 6 (the
Election Notice), within ten (10) business days after the later of
(A) the date of the first purchase or acquisition of, or other
increase in the beneficial ownership (as hereinafter defined) of,
Claims by a Substantial Claimholder following the entry of the
Interim Order or the Final Order, as applicable, and (B) the date
of any purchase or acquisition of, or other increase in the
beneficial ownership of, Claims that causes such person or Entity
to become a Substantial Claimholder. The filing or service of
such Election Notice shall constitute acceptance of the terms and
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8
conditions set forth in the Election Notice and in this paragraph
(b)(iii) by a person or Entity who files or serves such Election
Notice (an Electing Claimholder). An Electing Claimholder
shall remain subject to the initial notice requirements of
paragraph (b)(i) herein.
(2) To permit reliance by GTAT on Treasury Regulations section
1.382-9(d)(3), any Electing Claimholder shall not participate in
formulating any chapter 11 plan of reorganization of or on behalf
of GTAT (which shall include, without limitation, making any
suggestions or proposals to GTAT or its advisors with regard to
such a plan); provided, however, that the following activities
shall not constitute participation in formulating a plan of
reorganization if; in pursuing such activities, the Electing
Claimholder does not disclose or otherwise make evident (unless
compelled to do so by an order of a court of competent
jurisdiction or some other applicable legal requirement) to
GTAT that such Electing Claimholder has beneficial ownership
of Newly Traded Claims (as hereinafter defined): filing an
objection to a proposed disclosure statement or to confirmation of
a proposed plan of reorganization; voting to accept or reject a
proposed plan of reorganization; reviewing or commenting on a
proposed business plan; providing information on a confidential
basis to the attorneys for GTAT; general membership on an
official committee or an ad hoc committee; or taking any action
required by the order of the Court.
(3) Following the issuance of a Notice of 382(1)(5) Plan, if GTAT
determines it to be reasonably necessary to require the sale or
transfer of all or a portion of the beneficial ownership of Claims
by an Electing Claimholder on the basis that such sale or transfer
is appropriate to reasonably ensure that the requirements of
section 382(1)(5) of the Tax Code will be satisfied, GTAT may
request, after notice to each Electing Claimholder and the
Committee and a hearing, that the Court enter an order approving
the issuance of a notice (the Sell-Down Notice) to the Electing
Claimholder that such Electing Claimholder must sell, cause to
sell, or otherwise transfer all or a portion of its beneficial
ownership of Claims (by class or other applicable breakdown) in
excess of (A) the amount of Claims beneficially owned by such
Electing Claimholder over (B) the Maximum Amount (as
hereinafter defined) for such Electing Claimholder (such excess
amount, an Excess Amount). If the Court approves GTATs
issuance of a Sell-Down Notice, the Debtors may provide the
Sell-Down Notice to the relevant Electing Claimholders.
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9
Prior to (A) the effective date of the 382(1)(5) Plan or (B) such
earlier date specified by GTAT but no earlier than the day after
the entry of the order confirming the 382(1)(5) Plan (the Sell-
Down Date), each Electing Claimholder shall sell, cause to sell,
or otherwise transfer an amount of the beneficial ownership of
Claims (if any) necessary to comply with the Sell-Down Notice
(the Sell-Down); provided, however, that notwithstanding
anything to the contrary in the Order, no Electing Claimholder
shall be required to sell, cause to sell, or otherwise transfer any
beneficial ownership of Claims if such sale would result in the
Electing Claimholder having beneficial ownership of an
aggregate amount of Claims (by class or other applicable
breakdown) that is less than such Electing Claimholders
Protected Amount (as hereinafter defined). Each Electing
Claimholder shall sell, cause to sell, or otherwise transfer its
beneficial ownership of Claims subject to the Sell-Down to
Permitted Transferees (as hereinafter defined); provided,
however, that such Electing Claimholder shall not have a
reasonable basis to believe that any such Permitted Transferee
would own, immediately after the contemplated transfer, an
Excess Amount of Claims.
An Electing Claimholder subject to the Sell-Down shall,
within five (5) business days after the later of (i) entry of an
order approving the 382(1)(5) Plan, (ii) the Sell-Down Date,
and (iii) such other date specified in the Sell-Down Notice, as
applicable, but before the effective date of the 382(1)(5) Plan,
and as a condition to receiving Affected Securities (as
hereinafter defined), serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a notice substantially
in the form annexed to the Orders as Exhibit 7 that such
Electing Claimholder has complied with the terms and
conditions set forth in this paragraph (b)(iii)(3) and that such
Electing Claimholder does not and will not hold an Excess
Amount of Claims as of the Sell-Down Date and at all times
through the effective date of the 382(1)(5) Plan (the Notice
of Compliance). Any Electing Claimholder who fails to
comply with this provision shall not receive Affected
Securities with respect to any Excess Amount of Claims.
(4) Except to the extent necessary to demonstrate to the Court the
need for the issuance of a Sell-Down Notice, other than
information contained in the Election Notices that is public or in
connection with an audit or other investigation by the IRS or
other taxing authority, GTAT shall keep all Election Notices and
any additional information provided by an Electing Claimholder
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10
pursuant to paragraph (b)(iii)(3) strictly confidential and shall not
disclose the identity of the Electing Claimholder to any other
person or Entity; provided, however, that GTAT may disclose the
identity of the Electing Claimholder to its counsel and
professional financial advisors and/or the counsel and
professional financial advisors of the Committee and of any
other person(s) that are subject to a nondisclosure agreement with
GTAT, each of whom shall keep all such notices strictly
confidential, subject to further order of the Court; and provided,
further, that to the extent GTAT reasonably determines such
confidential information is necessary to demonstrate to the Court
the need for the issuance of a Sell-Down Notice, such
confidential information (determined by, among other things,
whether such information was redacted in any public filing) shall
be filed under seal.
(5) Any proposed transfer or acquisition of Claims following the
issuance of a Notice of 382(1)(5) Plan shall be subject to the
Advance Approval of Acquisition Provisions set forth in
Paragraph (b)(ii) herein.
(6) Any Electing Claimholder that violates its obligations under an
Election Notice shall, pursuant to the Order, be precluded from
receiving, directly or indirectly, any consideration consisting of a
beneficial ownership of equity (including Options, as defined in
paragraph (a)(v)(3) herein) of GTAT (or any successor to GTAT,
including as determined for U.S. federal income tax purposes)
that is attributable to the Excess Amount of Claims for such
Electing Claimholder, including any consideration in lieu thereof;
provided, however, that such Electing Claimholder may be
entitled to receive any other consideration to which such Electing
Claimholder may be entitled by virtue of holding Claims (the
Equity Forfeiture Provision). Any purported acquisition of, or
other increase in the beneficial ownership of, equity of GTAT (or
any successor) that is precluded by the Equity Forfeiture
Provision will be an acquisition of Forfeited Equity. Any
acquirer of Forfeited Equity shall, immediately upon becoming
aware of such fact, return or cause to return the Forfeited Equity
to GTAT (or any successor to GTAT) or, if all of the equity
consideration properly issued to such acquirer and all or any
portion of such Forfeited Equity shall have been sold prior to the
time such acquirer becomes aware of such fact, such acquirer
shall return or cause to return to GTAT (or any successor to
GTAT) (A) any Forfeited Equity still held by such acquirer and
(B) the proceeds attributable to the sale of Forfeited Equity,
calculated by treating the most recently sold equity as Forfeited
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11
Equity. Any acquirer that receives Forfeited Equity and
deliberately fails to comply with the preceding sentence shall be
subject to such additional sanctions as the Court may determine.
Any Forfeited Equity returned to GTAT shall be distributed
(including a transfer to charity) or extinguished, in GTATs sole
discretion, in furtherance of the 382(1)(5) Plan.
(7) In effecting any sale or other transfer of Claims pursuant to a
Sell- Down Notice, an Electing Claimholder shall, to the extent
that it is reasonably feasible to do so within the normal
constraints of the market in which such sale takes place, notify
the acquirer of such Claims of the existence of the Order and the
Equity Forfeiture Provision (it being understood that, in all cases
in which there is direct communication between a salesperson
and a customer, including, without limitation, communication
via telephone, e- mail, and instant messaging, the existence of the
Order and the Equity Forfeiture Provision shall be included in
such salespersons summary of the transaction).
(iv) Deemed Electing Claimholders; Sanctions.
(1) Notwithstanding the foregoing, effective as of the Petition Date
and until further order of the Court to the contrary, any person or
Entity that (A) is not a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of
Claims that causes such person or Entity to become a Substantial
Claimholder, or (B) is a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of
Claims, shall either comply with the Advance Approval of
Acquisition Provisions pursuant to paragraph (b)(ii) or, to the
extent permitted in Paragraph (b)(iii) herein, file an Election
Notice and thereby become an Electing Claimholder; provided,
however, that any such person or Entity that neither satisfies the
Advance Approval of Acquisition Provisions nor files a timely
Election Notice shall be deemed to have filed an Election Notice
on the Petition Date and to have become an Electing
Claimholder (a Deemed Electing Claimholder) for all purposes
of the Order (other than the issuance of a direct notice to Electing
Claimholders, whenever required). Deemed Electing
Claimholders shall be subject to all the obligations of Electing
Claimholders, including, without limitation, the requirement that
Electing Claimholders sell, cause to sell, or otherwise transfer all
or a portion of the beneficial ownership of Claims pursuant to a
Sell-Down Notice or be subject to the Equity Forfeiture
Provision. Nothing in this paragraph (b)(iv) shall be read to
relieve a Deemed Electing Claimholder of its obligations to
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12
notify GTAT of such Deemed Electing Claimholders status as a
Substantial Claimholder. Except as otherwise provided in the
Procedures, all references to an Electing Claimholder in the
Procedures and in the Order shall include a Deemed Electing
Claimholder.
(2) Effective as of the Petition Date, any purchase or acquisition of,
or other increase in the beneficial ownership of, Claims in
violation of the Orders by a Substantial Claimholder shall be
subject to such remedy as the Court may find to be appropriate
upon motion by GTAT, including, without limitation, ordering
such noncompliant Substantial Claimholder to divest itself
promptly of any beneficial ownership of Claims purchased or
otherwise acquired in violation of the Orders and monetary
damages for any costs incurred by GTAT in connection with the
enforcement of the Orders. For the avoidance of doubt, any
sanctions imposed by the Court on a noncompliant Substantial
Claimholder pursuant to this paragraph (b)(iv)(2) shall be in
addition to the consequences of treating such noncompliant
Substantial Claimholder as a Deemed Electing Claimholder for
all purposes of the Orders.
(v) Exception. No person or Entity shall be subject to the Advance
Approval of Acquisition Provisions of paragraph (b)(ii) herein or the
Electing Claimholders provisions of paragraph (b)(iii) herein with
respect to any transfer described in Treasury Regulations section 1.382-
9(d)(5)(ii); provided, however, that such transfer is not for a principal
purpose of obtaining stock in the reorganized GTAT (or any successor)
or permitting the transferee to benefit from the losses of GTAT within
the meaning of Treasury Regulations section 1.382-9(d)(5)(iii); and
provided, further, that any such transferee who becomes a Substantial
Claimholder shall file with the Court, and serve upon GTAT, GTATs
proposed counsel and the Committee counsel, a notice of such status, in
the form annexed to the Orders as Exhibit 4, within ten (10) business
days of the later of (i) the date of the entry of the Interim Order or the
Final Order, as applicable, by the Court and (ii) the date on which such
person or Entity becomes a Substantial Claimholder.
(vi) Definitions. For purposes of this Motion and the Orders, the following
terms have the following meanings:
(1) Applicable Percentage. Applicable Percentage means, if only
one class of Affected Securities is to be issued pursuant to the
terms of the 382(1)(5) Plan and holders within any class of
Claims will receive a pro rata distribution of the Affected
Securities, 4.75% of the number of such shares that the Debtors
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13
reasonably estimate will be issued at the effective date of such
382(1)(5) Plan, as determined for U.S. federal income tax
purposes. If more than one class of the common stock or any
other equity securities (including securities that are treated as
equity securities for U.S. federal income tax purposes) of the
reorganized Debtors (or any successor), including Options (the
Affected Securities), is to be distributed pursuant to the terms
of the 382(1)(5) Plan or holders within a class of Claims may
receive a disproportionate distribution of such securities relative
to other holders in the same class, the Applicable Percentage
shall be determined by GTAT in its reasonable judgment in a
manner consistent with the estimated range of values for the
equity to be distributed reflected in the valuation analysis set
forth in the 382(1)(5) Plan and disclosure statement, and shall be
expressed in a manner that makes clear the number of shares or
other interests in each class of Affected Securities that would
constitute the Applicable Percentage.
(2) Beneficial Ownership. Beneficial ownership of a Claim
means:
(x) the beneficial ownership of a Claim as determined in
accordance with applicable rules under Section 382, the Treasury
Regulations promulgated thereunder, and rulings issued by the
IRS (for such purpose, treating a Claim as if it is stock), and, to
the extent provided in those rules from time to time, shall include
(A) direct and indirect ownership (e.g., a holding company would
be considered to beneficially own all Claims owned or acquired
by its subsidiaries), and (B) ownership by a holders family
members and any group of persons acting pursuant to a formal or
informal understanding to make a coordinated acquisition of
Claims and/or stock; and
(y) the beneficial ownership of an Option (irrespective of the
purpose for which such Option was issued, created, or acquired).
(3) Claim. A Claim means any unsecured claim under which any
of the Debtors is the obligor, including the 2017 GT Notes and
the 2020 GT Notes. In making this determination, in the case of
a secured claim, that portion of the claim (including such portion
attributable to accrued and unpaid interest) that exceeds the
current fair market value of the security shall be considered an
unsecured Claim. In calculating the amount of any Claims under
the Procedures, any applicable intercreditor agreements,
including subordination agreements, shall be given effect in
accordance with their terms.
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14
(4) Entity. Entity has the meaning set forth in paragraph (b)(i)(l)
above.
(5) Maximum Amount. Maximum Amount means for each person
or Entity and by class or other applicable breakdown of Claims,
the greater of (A) the applicable Threshold Amount and (B) the
Protected Amount (as hereinafter defined) (if any) for such
Electing Claimholder.
(6) Newly Traded Claims. Newly Traded Claims means Claims (i)
with respect to which a person or Entity acquired beneficial
ownership after the date that was eighteen (18) months before the
Petition Date; and (ii) that are not ordinary course claims,
within the meaning of Treasury Regulations section 1.382-
9(d)(2)(iv), of which the same person or Entity has always had
beneficial ownership.
(7) Option. Option has the meaning given to such term under
Treasury Regulations section 1.382-4(d)(9)(i), with respect to the
acquisition of a Claim or any consideration (including equity)
distributed in respect of any Claim pursuant to a plan of
reorganization or applicable bankruptcy court order.
(8) Permitted Transferee. A Permitted Transferee with respect to
an Electing Claimholder is a person or Entity whose holding of a
Claim would not result in such Electing Claimholder having
beneficial ownership of such Claim.
(9) Protected Amount. Protected Amount means the amount of
Claims (by class or other applicable breakdown) of which a
holder had beneficial ownership on the Petition Date, increased
by the amount of Claims of which such holder acquires, directly
or indirectly, beneficial ownership pursuant to trades entered into
before the Petition Date that had not yet closed as of the Petition
Date minus the amount of Claims of which such holder sells,
directly or indirectly, beneficial ownership pursuant to trades
entered into before the Petition Date that had not yet closed as of
the Petition Date.
(10) Substantial Claimholder. A Substantial Claimholder means
any person or Entity that beneficially owns an aggregate dollar
amount of Claims against the Debtors, or any Entity controlled
by such person or Entity through which such person or Entity
beneficially owns Claims against the Debtors, of more than the
Threshold Amount.
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15
For the avoidance of doubt, Section 382, the Treasury
Regulations promulgated thereunder, and all relevant IRS and
judicial authority shall apply in determining whether the Claims
of several persons and/or Entities must be aggregated when
testing for Substantial Claimholder status, treating Claims as if
they were stock.
(11) Threshold Amount. Threshold Amount means, initially,
$20,615,000, which amount may be subsequently increased or
decreased as GTAT may determine to be appropriate in the
Notice of 382(1)(5) Plan or thereafter in compliance with the
Orders.
(12) 2017 GT Notes. 2017 GT Notes means the 3.00% Convertible
Senior Notes maturing October 1, 2017.
(13) 2020 GT Notes. 2020 GT Notes means the 3.00% Convertible
Senior Notes maturing December 15, 2020.
FAILURE TO FOLLOW THE PROCEDURES SET FORTH IN THIS NOTICE
WILL CONSTITUTE A VIOLATION OF THE AUTOMATIC STAY PRESCRIBED
BY SECTION 362 OF THE BANKRUPTCY CODE.
ANY PROHIBITED ACQUISITION, DISPOSITION OR OTHER TRANSFER
OF GT STOCK IN VIOLATION OF THE ORDER WILL BE NULL AND VOID AB
INITIO AND MAY LEAD TO CONTEMPT, COMPENSATORY DAMAGES,
PUNITIVE DAMAGES, OR SANCTIONS BEING IMPOSED BY THE COURT.
GTAT MAY WAIVE, IN WRITING, ANY AND ALL RESTRICTIONS, STAYS,
AND NOTIFICATION PROCEDURES CONTAINED IN THE ORDER.
PLEASE TAKE FURTHER NOTICE that the requirements set forth in this Notice
are in addition to the requirements of Bankruptcy Rule 3001(e) and applicable securities,
corporate, and other laws, and do not excuse compliance therewith.
Dated: [_____], 2014
Manchester, NH
_______________________________________
Daniel W. Sklar, Esq.
Holly J. Barcroft, Esq.
NIXON PEABODY LLP
900 Elm Street
Manchester, NH 03101-2031
Telephone: (603) 628-4000
Facsimile: (603) 628-4040
- and -
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16
Luc A. Despins, Esq.
Andrew V. Tenzer, Esq.
James T. Grogan, Esq.
PAUL HASTINGS LLP
Park Avenue Tower
75 East 55th Street, First Floor
New York, New York 10022
Telephone: (212) 318-6000
Facsimile: (212) 319-4090
Proposed Co-Counsel for the Debtors and Debtors in
Possession
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EXHIBIT A
PROPOSED INTERIM ORDER
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Order Page 1 of 101
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
---------------------------------------------------------------
x
:
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
RE: Docket Nos. ___
INTERIM ORDER, PURSUANT TO BANKRUPTCY CODE SECTIONS 105(a) AND
362, ESTABLISHING NOTIFICATION PROCEDURES AND APPROVING
RESTRICTIONS ON CERTAIN TRANSFERS OF CLAIMS AGAINST AND EQUITY
INTERESTS IN THE DEBTORS NUNC PROTUNC TO THE PETITION DATE
Upon the motion (the Motion)
2
of GT Advanced Technologies Inc. (GT) and its
affiliated debtors as debtors in possession (collectively, GTAT or the Debtors) for entry of
an interim order (the Interim Order) pursuant to sections 105 and 362 of the Bankruptcy Code
establishing notification procedures and approving restrictions of certain transfers of claims
against and equity interests in GTAT, all as more fully set forth in the Motion; and this Court
having jurisdiction to consider the Motion and the relief requested therein in accordance with 28
U.S.C. 157 and 1334; and consideration of the Motion and the relief requested therein being a
core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper before this Court
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Motion.
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Order Page 2 of 101
2
pursuant to 28 U.S.C. 1408 and 1409; and due and proper notice of the Motion having been
provided under the particular circumstances, and it appearing that no other or further notice need
be provided; and this Court having determined that the legal and factual bases set forth in the
Motion establish just cause for the relief granted herein; and upon consideration of the First Day
Declaration; and it appearing that the relief requested in the Motion is in the best interests of
GTAT, its estates, and creditors; and upon all of the proceedings had before this Court and after
due deliberation and sufficient cause appearing therefor, it is hereby FOUND AND
DETERMINED THAT:
A. GTATS net operating loss carryforwards (NOLs) and certain other tax
attributes (together with the NOLs, the Tax Attributes), are property of GTATS estates and
are protected by section 362(a) of the Bankruptcy Code.
B. Unrestricted trading in common stock of GT (GT Stock) before GTATs
emergence from chapter 11 could severely limit GTATs ability to use the Tax Attributes for
purposes of the Internal Revenue Code of 1986, as amended (the Tax Code), as set forth in the
Motion;
C. The notification procedures and restrictions on certain transfers of GT Stock and
Claims (as defined below) are necessary and proper to preserve the Tax Attributes and are
therefore in the best interests of GTAT, its estates, and its creditors; and
D. The relief requested in the Motion is authorized on an interim basis under sections
105(a) and 362 of the Bankruptcy Code.
IT IS HEREBY ORDERED THAT:
1. The Motion is GRANTED on an interim basis.
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Order Page 3 of 101
3
2. The provisions of Interim Order shall be effective, nunc pro tunc, to the Petition
Date.
3. Until further order of this Court to the contrary, any acquisition, disposition or
other transfer in violation of the restrictions set forth herein shall be null and void ab initio as an
act in violation of the automatic stay prescribed in section 362 of the Bankruptcy Code and
pursuant to this Courts equitable power prescribed in section 105(a) of the Bankruptcy Code.
4. The following procedures and restrictions shall apply to (a) trading in GT Stock,
and (b) trading in Claims against GTAT, and are approved:
(a) GT StockOwnership, Acquisition, andDisposition
(i) Notice of Substantial GT Stock Ownership. Any person or entity (as such
latter term is defined in section 1.382-3(a) of the Treasury Regulations,
including persons acting pursuant to a formal or informal understanding
among themselves to make a coordinated acquisition, an Entity) that
beneficially owns, at any time on or after the Petition Date, GT Stock (as
hereinafter defined) in an amount sufficient to qualify such person or
Entity as a Substantial Equityholder (as hereinafter defined) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
counsel for any statutory committee of unsecured creditors appointed in
these cases (the Committee), a Notice of Substantial Stock Ownership (a
Substantial Ownership Notice), in the form attached as Exhibit 1 to the
Orders, which describes specifically and in detail the GT Stock ownership
of such person or Entity, on or before the date that is the later of: (a) ten
(10) business days after the entry of the Interim Order or the Final Order,
as applicable, and (b) ten (10) business days after that person or Entity
qualifies as a Substantial Equityholder. At the election of the Substantial
Equityholder, the Substantial Ownership Notice to be filed with the Court
(but not such notice served upon GTAT, GTATs proposed counsel and
the Committees counsel) may be redacted to exclude the Substantial
Equity Holders taxpayer identification number and the number of shares
of GT Stock that the Substantial Equityholder beneficially owns.
(ii) Acquisition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer of equity securities (including
Options, as hereinafter defined, to acquire such securities) that would
result in an increase in the amount of GT Stock beneficially owned by any
person or Entity that currently is or subsequently becomes a Substantial
Equityholder or that would result in a person or Entity becoming a
Substantial Equityholder (a Proposed Equity Acquisition Transaction),
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Order Page 4 of 101
4
such person, Entity or Substantial Equityholder (a Proposed Equity
Transferee) shall file with the Court, and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, a Notice of Intent to
Purchase, Acquire, or Otherwise Accumulate GT Stock (an Equity
Acquisition Notice), in the form annexed as Exhibit 2 to the Orders,
which describes specifically and in detail the proposed transaction in
which GT Stock is to be acquired. At the election of the Proposed Equity
Transferee, the Equity Acquisition Notice that is filed with the Court (but
not such notice served upon GTAT, GTATs proposed counsel and the
Committees counsel) may be redacted to exclude the Proposed Equity
Transferees taxpayer identification number and the number of shares of
GT Stock that the Proposed Equity Transferee beneficially owns and
proposes to purchase or otherwise acquire.
(iii) Disposition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer or other disposition of equity
securities (including Options to acquire such securities) that would result
in a decrease in the amount of GT Stock beneficially owned by a
Substantial Equityholder or that would result in a person or Entity ceasing
to be a Substantial Equityholder (a Proposed Equity Disposition
Transaction, and together with a Proposed Equity Acquisition
Transaction, a Proposed Equity Transaction), such person, Entity, or
Substantial Equityholder (a Proposed Equity Transferor) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a Notice of Intent to Sell, Trade, or Otherwise
Transfer GT Stock (an Equity Disposition Notice, and together with an
Equity Acquisition Notice, an Equity Trading Notice), in the form
annexed as Exhibit 3 to the Orders, which describes specifically and in
detail the proposed transaction in which GT Stock would be transferred.
At the election of the Proposed Equity Transferor, the Equity Disposition
Notice that is filed with the Court (but not such notice served upon GTAT,
GTATs proposed counsel and the Committees counsel) may be redacted
to exclude the Proposed Equity Transferors taxpayer identification
number and the number of shares of GT Stock that the Proposed Equity
Transferor beneficially owns and proposes to sell or otherwise transfer.
(iv) Objection Procedures. GTAT and the Committee shall have fifteen (15)
business days after the filing of an Equity Trading Notice (the Equity
Objection Deadline) to file with the Court and serve on a Proposed
Equity Transferee or a Proposed Equity Transferor, as the case may be, an
objection to any proposed transfer of equity securities (including Options
to acquire such securities) described in such Equity Trading Notice on the
grounds that such transfer may adversely affect GTATs ability to utilize
the Tax Attributes (an Equity Objection) as a result of an ownership
change under Section 382.
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(1) If GTAT or the Committee files an Equity Objection by the Equity
Objection Deadline, then the Proposed Equity Transaction shall
not be effective unless approved by a final and nonappealable
order of this Court.
(2) If GTAT or the Committee do not file an Equity Objection by the
Equity Objection Deadline, or if GTAT and the Committee provide
written authorization to the Proposed Equity Transferee or the
Proposed Equity Transferor, as the case may be, approving the
Proposed Equity Transaction, prior to the Equity Objection
Deadline, then such Proposed Equity Transaction may proceed
solely as specifically described in the Equity Trading Notice.
(v) Additional Acquisitions. Any additional transaction within the scope of
paragraphs (a)(ii) or (a)(iii) above must be the subject of an additional
notice as set forth herein with the applicable waiting period.
(vi) Definitions. For purposes of this Motion and the Proposed Order, the
following terms have the following meanings:
(1) Substantial Equityholder. A Substantial Equityholder is any
person or Entity that beneficially owns, or any Entity controlled by
such person or Entity through which such person or Entity
beneficially owns, at least 4.75% of all issued and outstanding
shares of GT Stock.
(2) Beneficial Ownership. Beneficial ownership (or any variation
thereof of GT Stock and Options to acquire GT Stock) shall be
determined in accordance with applicable rules under Section 382,
the Treasury Regulations promulgated thereunder and rulings
issued by the Internal Revenue Service, and, thus, to the extent
provided in those rules, from time to time shall include, without
limitation, (A) direct and indirect ownership (e.g., a holding
company would be considered to beneficially own all stock owned
or acquired by its subsidiaries), (B) ownership by a holders family
members and any group of persons acting pursuant to a formal or
informal understanding to make a coordinated acquisition of stock,
and (C) to the extent provided in Treasury Regulations section
1.382-4, the ownership of an Option to acquire GT Stock.
(3) Option. An Option to acquire stock includes 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 or otherwise not currently exercisable.
(4) GT Stock. GT Stock shall mean all common stock of GT. For
the avoidance of doubt, by operation of the definition of beneficial
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ownership, an owner of an Option to acquire GT Stock may be
treated as the owner of such GT Stock.
(b) TradinginClaimsof GTAT
(i) Notice of Substantial Claimholder Status; Notice of 382(l)(5) Plan.
(1) Any person or Entity (as such term is defined in Treasury
Regulations section 1.382-3(a), including persons acting pursuant
to a formal or informal understanding among themselves to make a
coordinated acquisition) that currently is or becomes a Substantial
Claimholder (as hereinafter defined) shall file with the Court and
serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a notice of such status (a Notice of
Substantial Claimholder Status), in the form annexed to the
Orders as Exhibit 4, within ten (10) business days of the later of
(A) the entry of the Interim Order or the Final Order, as applicable,
and (B) the date on which such person or Entity becomes a
Substantial Claimholder. At the election of the Substantial
Claimholder, the Notice of Substantial Claimholder Status that is
filed with the Court (but not the Notice of Substantial Claimholder
Status that is served upon GTAT, GTATs proposed counsel, and
the Committees counsel) may be redacted to exclude the
Substantial Claimholders taxpayer identification number and the
aggregate dollar amount of Claims (as hereinafter defined) that the
Substantial Claimholder beneficially owns.
(2) Upon filing a plan and disclosure statement that contemplates the
potential utilization of section 382(1)(5) of the Tax Code (the
382(1)(5) Plan), GTAT shall (A) publish (or arrange for
publication of) a notice and provide a written notice to the Notice
Parties and Electing Claimholders (each as hereinafter defined),
disclosing the filing of such 382(1)(5) Plan and the potential
issuance of a Sell-Down Notice (as hereinafter defined) in
connection therewith on the website to be established by the
Debtors claims and noticing agent (the Claims and Noticing
Agent) and in the national edition of The Wall Street Journal (a
Notice of 382(1)(5) Plan), (B) identify the Threshold Amount
(as hereinafter defined) of Claims for status as a Substantial
Claimholder and (C) request from each Electing Claimholder
(including a Deemed Electing Claimholder (as hereinafter
defined)) updated information regarding the aggregate amount of
Claims beneficially owned by such Electing Claimholder, which
updated information shall be delivered by such Electing
Claimholder to the Debtors within ten (10) business days of receipt
of the request therefor or, in the case of a Deemed Electing
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Claimholder, ten (10) business days of the date of the Notice of
382(1)(5) Plan.
For the avoidance of doubt, GTAT shall have no obligation under
the Orders to provide notice to any Deemed Electing Claimholder
of the matters set forth in this Paragraph (b)(i)(2), and the lack of
such notice shall not limit the obligation of a Deemed Electing
Claimholder to comply with the requirements of a Sell-Down
Notice (as hereinafter defined) or affect the application of the
Equity Forfeiture Provision (as hereinafter defined) with respect to
such Deemed Electing Claimholder.
(3) GTAT shall disclose the Threshold Amount in the Notice of
382(1)(5) Plan as of the date of the Notice of 382(1)(5) Plan based
on then available information, including any change in the
Threshold Amount. GTAT may adjust the Threshold Amount
based on the updated information from Electing Claimholders
pursuant to paragraph (b)(i)(2) herein. If the Threshold Amount is
adjusted, GTAT shall provide a notice of such adjusted amount in
the same manner as the Notice of 382(1)(5) Plan and such notice
shall be treated as an amended Notice of 382(1)(5) Plan, thereby
requesting updated information from each Electing Claimholder
and Deemed Electing Claimholder.
(ii) Advance Approval of Acquisition Provisions.
(1) Acquisition of Claims. Except as provided in paragraph (b)(v) and
the Electing Claimholder provisions in paragraph (b)(iii) herein, at
least twenty (20) business days prior to the proposed date of any
transfer of Claims that would result in (A) an increase in the dollar
amount of Claims beneficially owned by a Substantial Claimholder
or (B) any person or Entity becoming a Substantial Claimholder (a
Proposed Claims Acquisition Transaction), such person, Entity,
or Substantial Claimholder (a Proposed Claims Transferee) may
file with the Court and serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a Notice of Request to
Purchase, Acquire, or Otherwise Accumulate a Claim (a Claims
Acquisition Request), in the form annexed to the Orders as
Exhibit 5, which describes in detail the intended acquisition of
Claims, regardless of whether such transfer would be subject to the
filing, notice, and hearing requirements set forth in Bankruptcy
Rule 3001. At the Proposed Claims Transferees election, the
Claims Acquisition Request that is filed with the Court (but not the
Claims Acquisition Request that is served upon GTAT, GTATs
proposed counsel, and the Committees counsel) may be redacted
to exclude the Proposed Claims Transferees taxpayer
identification number and the aggregate dollar amount of Claims
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the Proposed Claims Transferee beneficially owns and proposes to
purchase or otherwise acquire.
(2) Approval Procedures. GTAT may determine, in furtherance of the
purposes of the Procedures and in consultation with counsel for the
Committee, whether or not to approve a Claims Acquisition
Request. If GTAT does not approve a Claims Acquisition Request
in writing within fifteen (15) business days after the Claims
Acquisition Request is filed with the Court, the Claims Acquisition
Request shall be deemed rejected. In the event a Proposed Claims
Transferees request is rejected prior to the date of a Notice of
382(1)(5) Plan, and the Proposed Claims Transferee still desires to
pursue the Proposed Claims Acquisition Transaction, the Proposed
Claims Transferee is subject to, and may avail itself of, the
Electing Claimholders provisions in paragraph (b)(iii) below.
(iii) Electing Claimholders.
(1) Any person or Entity generally may trade freely and make a
market in Claims without having to obtain advance approval as
otherwise required under paragraph (b)(ii) herein (the Advance
Approval of Acquisition Provisions) if such person or Entity
makes an election pursuant to, and abides by the provisions of, this
Paragraph (b)(iii). In order to make such election, a person or
Entity shall file with the Court and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, an election notice,
in the form annexed to the Orders as Exhibit 6 (the Election
Notice), within ten (10) business days after the later of (A) the
date of the first purchase or acquisition of, or other increase in the
beneficial ownership (as hereinafter defined) of, Claims by a
Substantial Claimholder following the entry of the Interim Order
or the Final Order, as applicable, and (B) the date of any purchase
or acquisition of, or other increase in the beneficial ownership of,
Claims that causes such person or Entity to become a Substantial
Claimholder. The filing or service of such Election Notice shall
constitute acceptance of the terms and conditions set forth in the
Election Notice and in this paragraph (b)(iii) by a person or Entity
who files or serves such Election Notice (an Electing
Claimholder). An Electing Claimholder shall remain subject to
the initial notice requirements of paragraph (b)(i) herein.
(2) To permit reliance by GTAT on Treasury Regulations section
1.382-9(d)(3), any Electing Claimholder shall not participate in
formulating any chapter 11 plan of reorganization of or on behalf
of GTAT (which shall include, without limitation, making any
suggestions or proposals to GTAT or its advisors with regard to
such a plan); provided, however, that the following activities shall
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not constitute participation in formulating a plan of reorganization
if; in pursuing such activities, the Electing Claimholder does not
disclose or otherwise make evident (unless compelled to do so by
an order of a court of competent jurisdiction or some other
applicable legal requirement) to GTAT that such Electing
Claimholder has beneficial ownership of Newly Traded Claims (as
hereinafter defined): filing an objection to a proposed disclosure
statement or to confirmation of a proposed plan of reorganization;
voting to accept or reject a proposed plan of reorganization;
reviewing or commenting on a proposed business plan; providing
information on a confidential basis to the attorneys for GTAT;
general membership on an official committee or an ad hoc
committee; or taking any action required by the order of the Court.
(3) Following the issuance of a Notice of 382(1)(5) Plan, if GTAT
determines it to be reasonably necessary to require the sale or
transfer of all or a portion of the beneficial ownership of Claims by
an Electing Claimholder on the basis that such sale or transfer is
appropriate to reasonably ensure that the requirements of section
382(1)(5) of the Tax Code will be satisfied, GTAT may request,
after notice to each Electing Claimholder and the Committee and a
hearing, that the Court enter an order approving the issuance of a
notice (the Sell-Down Notice) to the Electing Claimholder that
such Electing Claimholder must sell, cause to sell, or otherwise
transfer all or a portion of its beneficial ownership of Claims (by
class or other applicable breakdown) in excess of (A) the amount
of Claims beneficially owned by such Electing Claimholder over
(B) the Maximum Amount (as hereinafter defined) for such
Electing Claimholder (such excess amount, an Excess Amount).
If the Court approves GTATs issuance of a Sell-Down Notice, the
Debtors may provide the Sell-Down Notice to the relevant Electing
Claimholders.
Prior to (A) the effective date of the 382(1)(5) Plan or (B) such
earlier date specified by GTAT but no earlier than the day after
the entry of the order confirming the 382(1)(5) Plan (the Sell-
Down Date), each Electing Claimholder shall sell, cause to sell,
or otherwise transfer an amount of the beneficial ownership of
Claims (if any) necessary to comply with the Sell-Down Notice
(the Sell-Down); provided, however, that notwithstanding
anything to the contrary in the Order, no Electing Claimholder
shall be required to sell, cause to sell, or otherwise transfer any
beneficial ownership of Claims if such sale would result in the
Electing Claimholder having beneficial ownership of an aggregate
amount of Claims (by class or other applicable breakdown) that is
less than such Electing Claimholders Protected Amount (as
hereinafter defined). Each Electing Claimholder shall sell, cause
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to sell, or otherwise transfer its beneficial ownership of Claims
subject to the Sell-Down to Permitted Transferees (as hereinafter
defined); provided, however, that such Electing Claimholder shall
not have a reasonable basis to believe that any such Permitted
Transferee would own, immediately after the contemplated
transfer, an Excess Amount of Claims.
An Electing Claimholder subject to the Sell-Down shall,
within five (5) business days after the later of (i) entry of an
order approving the 382(1)(5) Plan, (ii) the Sell-Down Date,
and (iii) such other date specified in the Sell-Down Notice, as
applicable, but before the effective date of the 382(1)(5) Plan,
and as a condition to receiving Affected Securities (as
hereinafter defined), serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a notice substantially in
the form annexed to the Orders as Exhibit 7 that such Electing
Claimholder has complied with the terms and conditions set
forth in this paragraph (b)(iii)(3) and that such Electing
Claimholder does not and will not hold an Excess Amount of
Claims as of the Sell-Down Date and at all times through the
effective date of the 382(1)(5) Plan (the Notice of
Compliance). Any Electing Claimholder who fails to comply
with this provision shall not receive Affected Securities with
respect to any Excess Amount of Claims.
(4) Except to the extent necessary to demonstrate to the Court the need
for the issuance of a Sell-Down Notice, other than information
contained in the Election Notices that is public or in connection
with an audit or other investigation by the IRS or other taxing
authority, GTAT shall keep all Election Notices and any additional
information provided by an Electing Claimholder pursuant to
paragraph (b)(iii)(3) strictly confidential and shall not disclose the
identity of the Electing Claimholder to any other person or Entity;
provided, however, that GTAT may disclose the identity of the
Electing Claimholder to its counsel and professional financial
advisors and/or the counsel and professional financial advisors of
the Committee and of any other person(s) that are subject to a
nondisclosure agreement with GTAT, each of whom shall keep all
such notices strictly confidential, subject to further order of the
Court; and provided, further, that to the extent GTAT reasonably
determines such confidential information is necessary to
demonstrate to the Court the need for the issuance of a Sell-Down
Notice, such confidential information (determined by, among other
things, whether such information was redacted in any public filing)
shall be filed under seal.
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(5) Any proposed transfer or acquisition of Claims following the
issuance of a Notice of 382(1)(5) Plan shall be subject to the
Advance Approval of Acquisition Provisions set forth in Paragraph
(b)(ii) herein.
(6) Any Electing Claimholder that violates its obligations under an
Election Notice shall, pursuant to the Order, be precluded from
receiving, directly or indirectly, any consideration consisting of a
beneficial ownership of equity (including Options, as defined in
paragraph (a)(v)(3) herein) of GTAT (or any successor to GTAT,
including as determined for U.S. federal income tax purposes) that
is attributable to the Excess Amount of Claims for such Electing
Claimholder, including any consideration in lieu thereof; provided,
however, that such Electing Claimholder may be entitled to receive
any other consideration to which such Electing Claimholder may
be entitled by virtue of holding Claims (the Equity Forfeiture
Provision). Any purported acquisition of, or other increase in the
beneficial ownership of, equity of GTAT (or any successor) that is
precluded by the Equity Forfeiture Provision will be an acquisition
of Forfeited Equity. Any acquirer of Forfeited Equity shall,
immediately upon becoming aware of such fact, return or cause to
return the Forfeited Equity to GTAT (or any successor to GTAT)
or, if all of the equity consideration properly issued to such
acquirer and all or any portion of such Forfeited Equity shall have
been sold prior to the time such acquirer becomes aware of such
fact, such acquirer shall return or cause to return to GTAT (or any
successor to GTAT) (A) any Forfeited Equity still held by such
acquirer and (B) the proceeds attributable to the sale of Forfeited
Equity, calculated by treating the most recently sold equity as
Forfeited Equity. Any acquirer that receives Forfeited Equity and
deliberately fails to comply with the preceding sentence shall be
subject to such additional sanctions as the Court may determine.
Any Forfeited Equity returned to GTAT shall be distributed
(including a transfer to charity) or extinguished, in GTATs sole
discretion, in furtherance of the 382(1)(5) Plan.
(7) In effecting any sale or other transfer of Claims pursuant to a Sell-
Down Notice, an Electing Claimholder shall, to the extent that it is
reasonably feasible to do so within the normal constraints of the
market in which such sale takes place, notify the acquirer of such
Claims of the existence of the Order and the Equity Forfeiture
Provision (it being understood that, in all cases in which there is
direct communication between a salesperson and a customer,
including, without limitation, communication via telephone, e-
mail, and instant messaging, the existence of the Order and the
Equity Forfeiture Provision shall be included in such salespersons
summary of the transaction).
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(iv) Deemed Electing Claimholders; Sanctions.
(1) Notwithstanding the foregoing, effective as of the Petition Date
and until further order of the Court to the contrary, any person or
Entity that (A) is not a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of Claims
that causes such person or Entity to become a Substantial
Claimholder, or (B) is a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of
Claims, shall either comply with the Advance Approval of
Acquisition Provisions pursuant to paragraph (b)(ii) or, to the
extent permitted in Paragraph (b)(iii) herein, file an Election
Notice and thereby become an Electing Claimholder; provided,
however, that any such person or Entity that neither satisfies the
Advance Approval of Acquisition Provisions nor files a timely
Election Notice shall be deemed to have filed an Election Notice
on the Petition Date and to have become an Electing Claimholder
(a Deemed Electing Claimholder) for all purposes of the Order
(other than the issuance of a direct notice to Electing Claimholders,
whenever required). Deemed Electing Claimholders shall be
subject to all the obligations of Electing Claimholders, including,
without limitation, the requirement that Electing Claimholders sell,
cause to sell, or otherwise transfer all or a portion of the beneficial
ownership of Claims pursuant to a Sell-Down Notice or be subject
to the Equity Forfeiture Provision. Nothing in this paragraph
(b)(iv) shall be read to relieve a Deemed Electing Claimholder of
its obligations to notify GTAT of such Deemed Electing
Claimholders status as a Substantial Claimholder. Except as
otherwise provided in the Procedures, all references to an Electing
Claimholder in the Procedures and in the Order shall include a
Deemed Electing Claimholder.
(2) Effective as of the Petition Date, any purchase or acquisition of, or
other increase in the beneficial ownership of, Claims in violation
of the Orders by a Substantial Claimholder shall be subject to such
remedy as the Court may find to be appropriate upon motion by
GTAT, including, without limitation, ordering such noncompliant
Substantial Claimholder to divest itself promptly of any beneficial
ownership of Claims purchased or otherwise acquired in violation
of the Orders and monetary damages for any costs incurred by
GTAT in connection with the enforcement of the Orders. For the
avoidance of doubt, any sanctions imposed by the Court on a
noncompliant Substantial Claimholder pursuant to this paragraph
(b)(iv)(2) shall be in addition to the consequences of treating such
noncompliant Substantial Claimholder as a Deemed Electing
Claimholder for all purposes of the Orders.
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(v) Exception. No person or Entity shall be subject to the Advance Approval
of Acquisition Provisions of paragraph (b)(ii) herein or the Electing
Claimholders provisions of paragraph (b)(iii) herein with respect to any
transfer described in Treasury Regulations section 1.382-9(d)(5)(ii);
provided, however, that such transfer is not for a principal purpose of
obtaining stock in the reorganized GTAT (or any successor) or permitting
the transferee to benefit from the losses of GTAT within the meaning of
Treasury Regulations section 1.382-9(d)(5)(iii); and provided, further, that
any such transferee who becomes a Substantial Claimholder shall file with
the Court, and serve upon GTAT, GTATs proposed counsel and the
Committee counsel, a notice of such status, in the form annexed to the
Orders as Exhibit 4, within ten (10) business days of the later of (i) the
date of the entry of the Interim Order or the Final Order, as applicable, by
the Court and (ii) the date on which such person or Entity becomes a
Substantial Claimholder.
(vi) Definitions. For purposes of this Motion and the Orders, the following
terms have the following meanings:
(1) Applicable Percentage. Applicable Percentage means, if only
one class of Affected Securities is to be issued pursuant to the
terms of the 382(1)(5) Plan and holders within any class of Claims
will receive a pro rata distribution of the Affected Securities,
4.75% of the number of such shares that the Debtors reasonably
estimate will be issued at the effective date of such 382(1)(5) Plan,
as determined for U.S. federal income tax purposes. If more than
one class of the common stock or any other equity securities
(including securities that are treated as equity securities for U.S.
federal income tax purposes) of the reorganized Debtors (or any
successor), including Options (the Affected Securities), is to be
distributed pursuant to the terms of the 382(1)(5) Plan or holders
within a class of Claims may receive a disproportionate
distribution of such securities relative to other holders in the same
class, the Applicable Percentage shall be determined by GTAT in
its reasonable judgment in a manner consistent with the estimated
range of values for the equity to be distributed reflected in the
valuation analysis set forth in the 382(1)(5) Plan and disclosure
statement, and shall be expressed in a manner that makes clear the
number of shares or other interests in each class of Affected
Securities that would constitute the Applicable Percentage.
(2) Beneficial Ownership. Beneficial ownership of a Claim means:
(x) the beneficial ownership of a Claim as determined in
accordance with applicable rules under Section 382, the Treasury
Regulations promulgated thereunder, and rulings issued by the IRS
(for such purpose, treating a Claim as if it is stock), and, to the
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extent provided in those rules from time to time, shall include (A)
direct and indirect ownership (e.g., a holding company would be
considered to beneficially own all Claims owned or acquired by its
subsidiaries), and (B) ownership by a holders family members
and any group of persons acting pursuant to a formal or informal
understanding to make a coordinated acquisition of Claims and/or
stock; and
(y) the beneficial ownership of an Option (irrespective of the
purpose for which such Option was issued, created, or acquired).
(3) Claim. A Claim means any unsecured claim under which any of
the Debtors is the obligor, including the 2017 GT Notes and the
2020 GT Notes. In making this determination, in the case of a
secured claim, that portion of the claim (including such portion
attributable to accrued and unpaid interest) that exceeds the current
fair market value of the security shall be considered an unsecured
Claim. In calculating the amount of any Claims under the
Procedures, any applicable intercreditor agreements, including
subordination agreements, shall be given effect in accordance with
its terms.
(4) Entity. Entity has the meaning set forth in paragraph (b)(i)(l)
above.
(5) Maximum Amount. Maximum Amount means for each person
or Entity and by class or other applicable breakdown of Claims, the
greater of (A) the applicable Threshold Amount and (B) the
Protected Amount (as hereinafter defined) (if any) for such
Electing Claimholder.
(6) Newly Traded Claims. Newly Traded Claims means Claims (i)
with respect to which a person or Entity acquired beneficial
ownership after the date that was eighteen (18) months before the
Petition Date; and (ii) that are not ordinary course claims, within
the meaning of Treasury Regulations section 1.382- 9(d)(2)(iv), of
which the same person or Entity has always had beneficial
ownership.
(7) Option. Option has the meaning given to such term under
Treasury Regulations section 1.382-4(d)(9)(i), with respect to the
acquisition of a Claim or any consideration (including equity)
distributed in respect of any Claim pursuant to a plan of
reorganization or applicable bankruptcy court order.
(8) Permitted Transferee. A Permitted Transferee with respect to an
Electing Claimholder is a person or Entity whose holding of a
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Claim would not result in such Electing Claimholder having
beneficial ownership of such Claim.
(9) Protected Amount. Protected Amount means the amount of
Claims (by class or other applicable breakdown) of which a holder
had beneficial ownership on the Petition Date, increased by the
amount of Claims of which such holder acquires, directly or
indirectly, beneficial ownership pursuant to trades entered into
before the Petition Date that had not yet closed as of the Petition
Date minus the amount of Claims of which such holder sells,
directly or indirectly, beneficial ownership pursuant to trades
entered into before the Petition Date that had not yet closed as of
the Petition Date.
(10) Substantial Claimholder. A Substantial Claimholder means any
person or Entity that beneficially owns an aggregate dollar amount
of Claims against the Debtors, or any Entity controlled by such
person or Entity through which such person or Entity beneficially
owns Claims against the Debtors, of more than the Threshold
Amount.
For the avoidance of doubt, Section 382, the Treasury Regulations
promulgated thereunder, and all relevant IRS and judicial authority
shall apply in determining whether the Claims of several persons
and/or Entities must be aggregated when testing for Substantial
Claimholder status, treating Claims as if they were stock.
(11) Threshold Amount. Threshold Amount means, initially,
$20,615,000, which amount may be subsequently increased or
decreased as GTAT may determine to be appropriate in the Notice
of 382(1)(5) Plan or thereafter in compliance with the Orders.
(12) 2017 GT Notes. 2017 GT Notes means the 3.00% Convertible
Senior Notes maturing October 1, 2017.
(13) 2020 GT Notes. 2020 GT Notes means the 3.00% Convertible
Senior Notes maturing December 15, 2020.
5. Any person or Entity acquiring and/or disposing of GT Stock or a Claim in
violation of the restrictions set forth herein, or failing to comply with the Procedures, shall be
subject to such sanctions as the Court may consider appropriate pursuant to this Courts equitable
power prescribed in section 105(a) of the Bankruptcy Code.
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6. The notice substantially in the form annexed to the Motion as Exhibit C (the
Interim Procedures Notice) is approved.
7. The notices substantially in the form annexed hereto as Exhibits 1 to 7 are
approved.
8. As soon as reasonably practicable after entry of this Interim Order, GTAT shall
serve the Procedures Notice on: (a) the Office of the United States Trustee for Region 1, 1000
Elm Street, Suite 605 Manchester, NH 03101, Attn: Geraldine L. Karonis; (b) the creditors
holding the 30 largest unsecured claims against GTATs estates (on a consolidated basis); (c) the
indenture trustee for the Debtors (i) 3.00% Convertible Senior Notes due 2017, and (ii) 3.00%
Convertible Senior Notes due 2020 (collectively, the GT Notes), U.S. Bank National
Association (U.S. Bank), 60 Livingston Avenue, St. Paul, MN 55107, Attn: Hazrat R. Haniff;
(d) U.S. Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549 (the
SEC); (e) any transfer agents for GT Stock; (f) those holders of GT Stock who have filed
Forms 13D and 13G with the SEC; and (g) those parties who have formally filed requests for
notice in these chapter 11 cases pursuant to Bankruptcy Rule 2002 (collectively, the Notice
Parties).
9. Upon receipt of the Interim Procedures Notice, (i) U.S. Bank, as Indenture
Trustee for the GT Notes, shall send the Procedures Notice to all holders of GT Notes registered
with the Indenture Trustee, (ii) any transfer agents shall send the Procedures Notice to all holders
of GT Stock registered with the transfer agent, (iii) any registered holder shall, in turn, provide
the Procedures Notice to any holder for whose account the registered holder holds GT Stock
and/or GT Notes, and (iv) any holder shall, in tum, provide the Interim Procedures Notice to any
person or entity for whom the holder holds GT Stock and/or GT Notes.
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10. The Interim Procedures Notice shall be posted on the website established by
GTATs claims agent, Kurtzman Carson Consultants LLC, at http://www.kccllc.net/GTAT.
11. Notice of the Motion as provided therein shall be deemed good and sufficient
notice of the Motion.
12. GTAT may waive, in writing, any and all restrictions, stays, and notification
procedures contained in this Order.
13. The relief granted in this Interim Order is intended solely to permit GTAT to
protect, preserve and maximize the value of its Tax Attributes. Accordingly, except to the extent
this Interim Order expressly conditions or restricts trading in claims against or interests in
GTAT, 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 claims against or interests in the
Debtors, including in connection with the treatment of any such claims or interests under any
plan of reorganization.
14. The requirement set forth in LBR 7102(b)(2) that any motion filed shall have an
accompanying memorandum of law is waived.
15. The requirements set forth in this Interim Order are in addition to the
requirements of all applicable law and do not excuse compliance therewith.
16. GTAT is authorized and empowered to take all actions necessary to implement
the relief granted in this Interim Order.
17. A hearing to consider entry of an order granting the relief requested in the Motion
on a final basis is scheduled for ______ , 2014 at __:__.m. in Courtroom __of the United States
Bankruptcy Court for the District of New Hampshire, 1000 Elm Street, Suite 1001, Manchester,
NH 03101, and served upon (i) GTAT, c/o GT Advanced Technologies Inc., 243 Daniel Webster
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Highway, Merrimack, NH 03054, Attn: General Counsel; (ii) Paul Hastings LLP, 75 East 55th
Street, New York, NY 10022, Attn: Luc A. Despins, Esq., and 600 Travis Street, 58th Floor,
Houston, TX 77002, Attn: James T. Grogan, Esq., and Nixon Peabody, 900 Elm Street,
Manchester, NH 03101, Attn: Daniel W. Sklar, Esq. and Holly J. Barcroft, Esq.; and (iii) the
Office of the United States Trustee for Region 1 (the U.S. Trustee), 1000 Elm Street, Suite 605
Manchester, NH 03101, Attn: Geraldine L. Karonis; and (iv) counsel to any statutory creditors
committee appointed in these chapter 11 cases, so as to be received no later than 4:00 p.m. (E.T.)
on _______, 2014 (the Objection Deadline).
18. If a timely Objection(s) is received, a hearing shall be held on _____2014, at
__:__.m (E.T.), to consider, on a final basis, the relief requested in the Motion.
19. If no Objections are timely filed, served, and received in accordance with this
Interim Order, the Debtors shall submit to the Court a final order granting the relief requested in
the Motion
20. Notwithstanding the possible applicability of Rules 6004(h), 7062, 9014 of the
Federal Rules of Bankruptcy Procedure or otherwise, the terms and conditions of this Interim
Order shall be immediately effective and enforceable upon its entry.
21. This Court retains jurisdiction with respect to all matters arising from or related to
the interpretation, implementation or enforcement of this Interim Order.
Dated: _______________, 2014
Manchester, NH
___________________________________
CHIEF UNITED STATES BANKRUPTCY JUDGE
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EXHIBIT B
PROPOSED FINAL ORDER
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
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I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
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Chapter 11
Case No. 14-_______ (____)
Jointly Administered
RE: Docket Nos. ___
FINAL ORDER, PURSUANT TO BANKRUPTCY CODE SECTIONS 105(a) AND 362,
ESTABLISHING NOTIFICATION PROCEDURES AND APPROVING
RESTRICTIONS ON CERTAIN TRANSFERS OF CLAIMS AGAINST AND EQUITY
INTERESTS IN THE DEBTORS NUNC PROTUNC TO THE PETITION DATE
Upon the motion (the Motion)
2
of GT Advanced Technologies Inc. (GT) and its
affiliated debtors as debtors in possession (collectively, GTAT or the Debtors) for entry of a
final order (the Final Order) pursuant to sections 105 and 362 of the Bankruptcy Code
establishing notification procedures and approving restrictions of certain transfers of claims
against and equity interests in GTAT, all as more fully set forth in the Motion; and this Court
having jurisdiction to consider the Motion and the relief requested therein in accordance with 28
U.S.C. 157 and 1334; and consideration of the Motion and the relief requested therein being a
core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper before this Court
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Motion.
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2
pursuant to 28 U.S.C. 1408 and 1409; and due and proper notice of the Motion having been
provided under the particular circumstances, and it appearing that no other or further notice need
be provided; and this Court having determined that the legal and factual bases set forth in the
Motion establish just cause for the relief granted herein; and upon consideration of the First Day
Declaration; and it appearing that the relief requested in the Motion is in the best interests of
GTAT, its estates, and creditors; and upon all of the proceedings had before this Court and after
due deliberation and sufficient cause appearing therefor, it is hereby FOUND AND
DETERMINED THAT:
A. GTATS net operating loss carryforwards (NOLs) and certain other tax
attributes, (together with the NOLs, the Tax Attributes), are property of GTATS estates and
are protected by section 362(a) of the Bankruptcy Code.
B. Unrestricted trading in common stock of GT (GT Stock) before GTATs
emergence from chapter 11 could severely limit GTATs ability to use the Tax Attributes for
purposes of the Internal Revenue Code of 1986, as amended (the Tax Code), as set forth in the
Motion;
C. The notification procedures and restrictions on certain transfers of GT Stock and
Claims (as defined below) are necessary and proper to preserve the Tax Attributes and are
therefore in the best interests of GTAT, its estates, and its creditors; and
D. The relief requested in the Motion is authorized under sections 105(a) and 362 of
the Bankruptcy Code.
IT IS HEREBY ORDERED THAT:
1. The Motion is GRANTED on a final basis as set forth herein.
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2. The provisions of Final Order shall be effective, nunc pro tunc, to the Petition
Date.
3. Any acquisition, disposition or other transfer in violation of the restrictions set
forth herein shall be null and void ab initio as an act in violation of the automatic stay prescribed
in section 362 of the Bankruptcy Code and pursuant to this Courts equitable power prescribed in
section 105(a) of the Bankruptcy Code.
4. The following procedures and restrictions shall apply to (a) trading in GT Stock,
and (b) trading in Claims against GTAT, and are approved:
(a) GT StockOwnership, Acquisition, andDisposition
(i) Notice of Substantial GT Stock Ownership. Any person or entity (as such
latter term is defined in section 1.382-3(a) of the Treasury Regulations,
including persons acting pursuant to a formal or informal understanding
among themselves to make a coordinated acquisition, an Entity) that
beneficially owns, at any time on or after the Petition Date, GT Stock (as
hereinafter defined) in an amount sufficient to qualify such person or
Entity as a Substantial Equityholder (as hereinafter defined) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
counsel for any statutory committee of unsecured creditors appointed in
these cases (the Committee), a Notice of Substantial Stock Ownership (a
Substantial Ownership Notice), in the form attached as Exhibit 1 to the
Orders, which describes specifically and in detail the GT Stock ownership
of such person or Entity, on or before the date that is the later of: (a) ten
(10) business days after the entry of the Interim Order or the Final Order,
as applicable, and (b) ten (10) business days after that person or Entity
qualifies as a Substantial Equityholder. At the election of the Substantial
Equityholder, the Substantial Ownership Notice to be filed with the Court
(but not such notice served upon GTAT, GTATs proposed counsel and
the Committees counsel) may be redacted to exclude the Substantial
Equity Holders taxpayer identification number and the number of shares
of GT Stock that the Substantial Equityholder beneficially owns.
(ii) Acquisition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer of equity securities (including
Options, as hereinafter defined, to acquire such securities) that would
result in an increase in the amount of GT Stock beneficially owned by any
person or Entity that currently is or subsequently becomes a Substantial
Equityholder or that would result in a person or Entity becoming a
Substantial Equityholder (a Proposed Equity Acquisition Transaction),
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such person, Entity or Substantial Equityholder (a Proposed Equity
Transferee) shall file with the Court, and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, a Notice of Intent to
Purchase, Acquire, or Otherwise Accumulate GT Stock (an Equity
Acquisition Notice), in the form annexed as Exhibit 2 to the Orders,
which describes specifically and in detail the proposed transaction in
which GT Stock is to be acquired. At the election of the Proposed Equity
Transferee, the Equity Acquisition Notice that is filed with the Court (but
not such notice served upon GTAT, GTATs proposed counsel and the
Committees counsel) may be redacted to exclude the Proposed Equity
Transferees taxpayer identification number and the number of shares of
GT Stock that the Proposed Equity Transferee beneficially owns and
proposes to purchase or otherwise acquire.
(iii) Disposition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer or other disposition of equity
securities (including Options to acquire such securities) that would result
in a decrease in the amount of GT Stock beneficially owned by a
Substantial Equityholder or that would result in a person or Entity ceasing
to be a Substantial Equityholder (a Proposed Equity Disposition
Transaction, and together with a Proposed Equity Acquisition
Transaction, a Proposed Equity Transaction), such person, Entity, or
Substantial Equityholder (a Proposed Equity Transferor) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a Notice of Intent to Sell, Trade, or Otherwise
Transfer GT Stock (an Equity Disposition Notice, and together with an
Equity Acquisition Notice, an Equity Trading Notice), in the form
annexed as Exhibit 3 to the Orders, which describes specifically and in
detail the proposed transaction in which GT Stock would be transferred.
At the election of the Proposed Equity Transferor, the Equity Disposition
Notice that is filed with the Court (but not such notice served upon GTAT,
GTATs proposed counsel and the Committees counsel) may be redacted
to exclude the Proposed Equity Transferors taxpayer identification
number and the number of shares of GT Stock that the Proposed Equity
Transferor beneficially owns and proposes to sell or otherwise transfer.
(iv) Objection Procedures. GTAT and the Committee shall have fifteen (15)
business days after the filing of an Equity Trading Notice (the Equity
Objection Deadline) to file with the Court and serve on a Proposed
Equity Transferee or a Proposed Equity Transferor, as the case may be, an
objection to any proposed transfer of equity securities (including Options
to acquire such securities) described in such Equity Trading Notice on the
grounds that such transfer may adversely affect GTATs ability to utilize
the Tax Attributes (an Equity Objection) as a result of an ownership
change under Section 382.
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(1) If GTAT or the Committee files an Equity Objection by the Equity
Objection Deadline, then the Proposed Equity Transaction shall
not be effective unless approved by a final and nonappealable
order of this Court.
(2) If GTAT or the Committee do not file an Equity Objection by the
Equity Objection Deadline, or if GTAT and the Committee provide
written authorization to the Proposed Equity Transferee or the
Proposed Equity Transferor, as the case may be, approving the
Proposed Equity Transaction, prior to the Equity Objection
Deadline, then such Proposed Equity Transaction may proceed
solely as specifically described in the Equity Trading Notice.
(v) Additional Acquisitions. Any additional transaction within the scope of
paragraphs (a)(ii) or (a)(iii) above must be the subject of an additional
notice as set forth herein with the applicable waiting period.
(vi) Definitions. For purposes of this Motion and the Proposed Order, the
following terms have the following meanings:
(1) Substantial Equityholder. A Substantial Equityholder is any
person or Entity that beneficially owns, or any Entity controlled by
such person or Entity through which such person or Entity
beneficially owns, at least 4.75% of all issued and outstanding
shares of GT Stock.
(2) Beneficial Ownership. Beneficial ownership (or any variation
thereof of GT Stock and Options to acquire GT Stock) shall be
determined in accordance with applicable rules under Section 382,
the Treasury Regulations promulgated thereunder and rulings
issued by the Internal Revenue Service, and, thus, to the extent
provided in those rules, from time to time shall include, without
limitation, (A) direct and indirect ownership (e.g., a holding
company would be considered to beneficially own all stock owned
or acquired by its subsidiaries), (B) ownership by a holders family
members and any group of persons acting pursuant to a formal or
informal understanding to make a coordinated acquisition of stock,
and (C) to the extent provided in Treasury Regulations section
1.382-4, the ownership of an Option to acquire GT Stock.
(3) Option. An Option to acquire stock includes 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 or otherwise not currently exercisable.
(4) GT Stock. GT Stock shall mean all common stock of GT. For
the avoidance of doubt, by operation of the definition of beneficial
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6
ownership, an owner of an Option to acquire GT Stock may be
treated as the owner of such GT Stock.
(b) TradinginClaimsof GTAT
(i) Notice of Substantial Claimholder Status; Notice of 382(l)(5) Plan.
(1) Any person or Entity (as such term is defined in Treasury
Regulations section 1.382-3(a), including persons acting pursuant
to a formal or informal understanding among themselves to make a
coordinated acquisition) that currently is or becomes a Substantial
Claimholder (as hereinafter defined) shall file with the Court and
serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a notice of such status (a Notice of
Substantial Claimholder Status), in the form annexed to the
Orders as Exhibit 4, within ten (10) business days of the later of
(A) the entry of the Interim Order or the Final Order, as applicable,
and (B) the date on which such person or Entity becomes a
Substantial Claimholder. At the election of the Substantial
Claimholder, the Notice of Substantial Claimholder Status that is
filed with the Court (but not the Notice of Substantial Claimholder
Status that is served upon GTAT, GTATs proposed counsel, and
the Committees counsel) may be redacted to exclude the
Substantial Claimholders taxpayer identification number and the
aggregate dollar amount of Claims (as hereinafter defined) that the
Substantial Claimholder beneficially owns.
(2) Upon filing a plan and disclosure statement that contemplates the
potential utilization of section 382(1)(5) of the Tax Code (the
382(1)(5) Plan), GTAT shall (A) publish (or arrange for
publication of) a notice and provide a written notice to the Notice
Parties and Electing Claimholders (each as hereinafter defined),
disclosing the filing of such 382(1)(5) Plan and the potential
issuance of a Sell-Down Notice (as hereinafter defined) in
connection therewith on the website to be established by the
Debtors claims and noticing agent (the Claims and Noticing
Agent) and in the national edition of The Wall Street Journal (a
Notice of 382(1)(5) Plan), (B) identify the Threshold Amount (as
hereinafter defined) of Claims for status as a Substantial
Claimholder and (C) request from each Electing Claimholder
(including a Deemed Electing Claimholder (as hereinafter
defined)) updated information regarding the aggregate amount of
Claims beneficially owned by such Electing Claimholder, which
updated information shall be delivered by such Electing
Claimholder to the Debtors within ten (10) business days of receipt
of the request therefor or, in the case of a Deemed Electing
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7
Claimholder, ten (10) business days of the date of the Notice of
382(1)(5) Plan.
For the avoidance of doubt, GTAT shall have no obligation under
the Orders to provide notice to any Deemed Electing Claimholder
of the matters set forth in this Paragraph (b)(i)(2), and the lack of
such notice shall not limit the obligation of a Deemed Electing
Claimholder to comply with the requirements of a Sell-Down
Notice (as hereinafter defined) or affect the application of the
Equity Forfeiture Provision (as hereinafter defined) with respect to
such Deemed Electing Claimholder.
(3) GTAT shall disclose the Threshold Amount in the Notice of
382(1)(5) Plan as of the date of the Notice of 382(1)(5) Plan based
on then available information, including any change in the
Threshold Amount. GTAT may adjust the Threshold Amount
based on the updated information from Electing Claimholders
pursuant to paragraph (b)(i)(2) herein. If the Threshold Amount is
adjusted, GTAT shall provide a notice of such adjusted amount in
the same manner as the Notice of 382(1)(5) Plan and such notice
shall be treated as an amended Notice of 382(1)(5) Plan, thereby
requesting updated information from each Electing Claimholder
and Deemed Electing Claimholder.
(ii) Advance Approval of Acquisition Provisions.
(1) Acquisition of Claims. Except as provided in paragraph (b)(v) and
the Electing Claimholder provisions in paragraph (b)(iii) herein, at
least twenty (20) business days prior to the proposed date of any
transfer of Claims that would result in (A) an increase in the dollar
amount of Claims beneficially owned by a Substantial Claimholder
or (B) any person or Entity becoming a Substantial Claimholder (a
Proposed Claims Acquisition Transaction), such person, Entity,
or Substantial Claimholder (a Proposed Claims Transferee) may
file with the Court and serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a Notice of Request to
Purchase, Acquire, or Otherwise Accumulate a Claim (a Claims
Acquisition Request), in the form annexed to the Orders as
Exhibit 5, which describes in detail the intended acquisition of
Claims, regardless of whether such transfer would be subject to the
filing, notice, and hearing requirements set forth in Bankruptcy
Rule 3001. At the Proposed Claims Transferees election, the
Claims Acquisition Request that is filed with the Court (but not the
Claims Acquisition Request that is served upon GTAT, GTATs
proposed counsel, and the Committees counsel) may be redacted
to exclude the Proposed Claims Transferees taxpayer
identification number and the aggregate dollar amount of Claims
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the Proposed Claims Transferee beneficially owns and proposes to
purchase or otherwise acquire.
(2) Approval Procedures. GTAT may determine, in furtherance of the
purposes of the Procedures and in consultation with counsel for the
Committee, whether or not to approve a Claims Acquisition
Request. If GTAT does not approve a Claims Acquisition Request
in writing within fifteen (15) business days after the Claims
Acquisition Request is filed with the Court, the Claims Acquisition
Request shall be deemed rejected. In the event a Proposed Claims
Transferees request is rejected prior to the date of a Notice of
382(1)(5) Plan, and the Proposed Claims Transferee still desires to
pursue the Proposed Claims Acquisition Transaction, the Proposed
Claims Transferee is subject to, and may avail itself of, the
Electing Claimholders provisions in paragraph (b)(iii) below.
(iii) Electing Claimholders.
(1) Any person or Entity generally may trade freely and make a
market in Claims without having to obtain advance approval as
otherwise required under paragraph (b)(ii) herein (the Advance
Approval of Acquisition Provisions) if such person or Entity
makes an election pursuant to, and abides by the provisions of, this
Paragraph (b)(iii). In order to make such election, a person or
Entity shall file with the Court and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, an election notice,
in the form annexed to the Orders as Exhibit 6 (the Election
Notice), within ten (10) business days after the later of (A) the
date of the first purchase or acquisition of, or other increase in the
beneficial ownership (as hereinafter defined) of, Claims by a
Substantial Claimholder following the entry of the Interim Order
or the Final Order, as applicable, and (B) the date of any purchase
or acquisition of, or other increase in the beneficial ownership of,
Claims that causes such person or Entity to become a Substantial
Claimholder. The filing or service of such Election Notice shall
constitute acceptance of the terms and conditions set forth in the
Election Notice and in this paragraph (b)(iii) by a person or Entity
who files or serves such Election Notice (an Electing
Claimholder). An Electing Claimholder shall remain subject to
the initial notice requirements of paragraph (b)(i) herein.
(2) To permit reliance by GTAT on Treasury Regulations section
1.382-9(d)(3), any Electing Claimholder shall not participate in
formulating any chapter 11 plan of reorganization of or on behalf
of GTAT (which shall include, without limitation, making any
suggestions or proposals to GTAT or its advisors with regard to
such a plan); provided, however, that the following activities shall
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not constitute participation in formulating a plan of reorganization
if; in pursuing such activities, the Electing Claimholder does not
disclose or otherwise make evident (unless compelled to do so by
an order of a court of competent jurisdiction or some other
applicable legal requirement) to GTAT that such Electing
Claimholder has beneficial ownership of Newly Traded Claims (as
hereinafter defined): filing an objection to a proposed disclosure
statement or to confirmation of a proposed plan of reorganization;
voting to accept or reject a proposed plan of reorganization;
reviewing or commenting on a proposed business plan; providing
information on a confidential basis to the attorneys for GTAT;
general membership on an official committee or an ad hoc
committee; or taking any action required by the order of the Court.
(3) Following the issuance of a Notice of 382(1)(5) Plan, if GTAT
determines it to be reasonably necessary to require the sale or
transfer of all or a portion of the beneficial ownership of Claims by
an Electing Claimholder on the basis that such sale or transfer is
appropriate to reasonably ensure that the requirements of section
382(1)(5) of the Tax Code will be satisfied, GTAT may request,
after notice to each Electing Claimholder and the Committee and a
hearing, that the Court enter an order approving the issuance of a
notice (the Sell-Down Notice) to the Electing Claimholder that
such Electing Claimholder must sell, cause to sell, or otherwise
transfer all or a portion of its beneficial ownership of Claims (by
class or other applicable breakdown) in excess of (A) the amount
of Claims beneficially owned by such Electing Claimholder over
(B) the Maximum Amount (as hereinafter defined) for such
Electing Claimholder (such excess amount, an Excess Amount).
If the Court approves GTATs issuance of a Sell-Down Notice, the
Debtors may provide the Sell-Down Notice to the relevant Electing
Claimholders.
Prior to (A) the effective date of the 382(1)(5) Plan or (B) such
earlier date specified by GTAT but no earlier than the day after
the entry of the order confirming the 382(1)(5) Plan (the Sell-
Down Date), each Electing Claimholder shall sell, cause to sell,
or otherwise transfer an amount of the beneficial ownership of
Claims (if any) necessary to comply with the Sell-Down Notice
(the Sell-Down); provided, however, that notwithstanding
anything to the contrary in the Order, no Electing Claimholder
shall be required to sell, cause to sell, or otherwise transfer any
beneficial ownership of Claims if such sale would result in the
Electing Claimholder having beneficial ownership of an aggregate
amount of Claims (by class or other applicable breakdown) that is
less than such Electing Claimholders Protected Amount (as
hereinafter defined). Each Electing Claimholder shall sell, cause
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to sell, or otherwise transfer its beneficial ownership of Claims
subject to the Sell-Down to Permitted Transferees (as hereinafter
defined); provided, however, that such Electing Claimholder shall
not have a reasonable basis to believe that any such Permitted
Transferee would own, immediately after the contemplated
transfer, an Excess Amount of Claims.
An Electing Claimholder subject to the Sell-Down shall,
within five (5) business days after the later of (i) entry of an
order approving the 382(1)(5) Plan, (ii) the Sell-Down Date,
and (iii) such other date specified in the Sell-Down Notice, as
applicable, but before the effective date of the 382(1)(5) Plan,
and as a condition to receiving Affected Securities (as
hereinafter defined), serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a notice substantially in
the form annexed to the Orders as Exhibit 7 that such Electing
Claimholder has complied with the terms and conditions set
forth in this paragraph (b)(iii)(3) and that such Electing
Claimholder does not and will not hold an Excess Amount of
Claims as of the Sell-Down Date and at all times through the
effective date of the 382(1)(5) Plan (the Notice of
Compliance). Any Electing Claimholder who fails to comply
with this provision shall not receive Affected Securities with
respect to any Excess Amount of Claims.
(4) Except to the extent necessary to demonstrate to the Court the need
for the issuance of a Sell-Down Notice, other than information
contained in the Election Notices that is public or in connection
with an audit or other investigation by the IRS or other taxing
authority, GTAT shall keep all Election Notices and any additional
information provided by an Electing Claimholder pursuant to
paragraph (b)(iii)(3) strictly confidential and shall not disclose the
identity of the Electing Claimholder to any other person or Entity;
provided, however, that GTAT may disclose the identity of the
Electing Claimholder to its counsel and professional financial
advisors and/or the counsel and professional financial advisors of
the Committee and of any other person(s) that are subject to a
nondisclosure agreement with GTAT, each of whom shall keep all
such notices strictly confidential, subject to further order of the
Court; and provided, further, that to the extent GTAT reasonably
determines such confidential information is necessary to
demonstrate to the Court the need for the issuance of a Sell-Down
Notice, such confidential information (determined by, among other
things, whether such information was redacted in any public filing)
shall be filed under seal.
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(5) Any proposed transfer or acquisition of Claims following the
issuance of a Notice of 382(1)(5) Plan shall be subject to the
Advance Approval of Acquisition Provisions set forth in Paragraph
(b)(ii) herein.
(6) Any Electing Claimholder that violates its obligations under an
Election Notice shall, pursuant to the Order, be precluded from
receiving, directly or indirectly, any consideration consisting of a
beneficial ownership of equity (including Options, as defined in
paragraph (a)(v)(3) herein) of GTAT (or any successor to GTAT,
including as determined for U.S. federal income tax purposes) that
is attributable to the Excess Amount of Claims for such Electing
Claimholder, including any consideration in lieu thereof; provided,
however, that such Electing Claimholder may be entitled to receive
any other consideration to which such Electing Claimholder may
be entitled by virtue of holding Claims (the Equity Forfeiture
Provision). Any purported acquisition of, or other increase in the
beneficial ownership of, equity of GTAT (or any successor) that is
precluded by the Equity Forfeiture Provision will be an acquisition
of Forfeited Equity. Any acquirer of Forfeited Equity shall,
immediately upon becoming aware of such fact, return or cause to
return the Forfeited Equity to GTAT (or any successor to GTAT)
or, if all of the equity consideration properly issued to such
acquirer and all or any portion of such Forfeited Equity shall have
been sold prior to the time such acquirer becomes aware of such
fact, such acquirer shall return or cause to return to GTAT (or any
successor to GTAT) (A) any Forfeited Equity still held by such
acquirer and (B) the proceeds attributable to the sale of Forfeited
Equity, calculated by treating the most recently sold equity as
Forfeited Equity. Any acquirer that receives Forfeited Equity and
deliberately fails to comply with the preceding sentence shall be
subject to such additional sanctions as the Court may determine.
Any Forfeited Equity returned to GTAT shall be distributed
(including a transfer to charity) or extinguished, in GTATs sole
discretion, in furtherance of the 382(1)(5) Plan.
(7) In effecting any sale or other transfer of Claims pursuant to a Sell-
Down Notice, an Electing Claimholder shall, to the extent that it is
reasonably feasible to do so within the normal constraints of the
market in which such sale takes place, notify the acquirer of such
Claims of the existence of the Order and the Equity Forfeiture
Provision (it being understood that, in all cases in which there is
direct communication between a salesperson and a customer,
including, without limitation, communication via telephone, e-
mail, and instant messaging, the existence of the Order and the
Equity Forfeiture Provision shall be included in such salespersons
summary of the transaction).
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Order Page 31 of 101
12
(iv) Deemed Electing Claimholders; Sanctions.
(1) Notwithstanding the foregoing, effective as of the Petition Date
and until further order of the Court to the contrary, any person or
Entity that (A) is not a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of Claims
that causes such person or Entity to become a Substantial
Claimholder, or (B) is a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of
Claims, shall either comply with the Advance Approval of
Acquisition Provisions pursuant to paragraph (b)(ii) or, to the
extent permitted in Paragraph (b)(iii) herein, file an Election
Notice and thereby become an Electing Claimholder; provided,
however, that any such person or Entity that neither satisfies the
Advance Approval of Acquisition Provisions nor files a timely
Election Notice shall be deemed to have filed an Election Notice
on the Petition Date and to have become an Electing Claimholder
(a Deemed Electing Claimholder) for all purposes of the Order
(other than the issuance of a direct notice to Electing Claimholders,
whenever required). Deemed Electing Claimholders shall be
subject to all the obligations of Electing Claimholders, including,
without limitation, the requirement that Electing Claimholders sell,
cause to sell, or otherwise transfer all or a portion of the beneficial
ownership of Claims pursuant to a Sell-Down Notice or be subject
to the Equity Forfeiture Provision. Nothing in this paragraph
(b)(iv) shall be read to relieve a Deemed Electing Claimholder of
its obligations to notify GTAT of such Deemed Electing
Claimholders status as a Substantial Claimholder. Except as
otherwise provided in the Procedures, all references to an Electing
Claimholder in the Procedures and in the Order shall include a
Deemed Electing Claimholder.
(2) Effective as of the Petition Date, any purchase or acquisition of, or
other increase in the beneficial ownership of, Claims in violation
of the Orders by a Substantial Claimholder shall be subject to such
remedy as the Court may find to be appropriate upon motion by
GTAT, including, without limitation, ordering such noncompliant
Substantial Claimholder to divest itself promptly of any beneficial
ownership of Claims purchased or otherwise acquired in violation
of the Orders and monetary damages for any costs incurred by
GTAT in connection with the enforcement of the Orders. For the
avoidance of doubt, any sanctions imposed by the Court on a
noncompliant Substantial Claimholder pursuant to this paragraph
(b)(iv)(2) shall be in addition to the consequences of treating such
noncompliant Substantial Claimholder as a Deemed Electing
Claimholder for all purposes of the Orders.
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13
(v) Exception. No person or Entity shall be subject to the Advance Approval
of Acquisition Provisions of paragraph (b)(ii) herein or the Electing
Claimholders provisions of paragraph (b)(iii) herein with respect to any
transfer described in Treasury Regulations section 1.382-9(d)(5)(ii);
provided, however, that such transfer is not for a principal purpose of
obtaining stock in the reorganized GTAT (or any successor) or permitting
the transferee to benefit from the losses of GTAT within the meaning of
Treasury Regulations section 1.382-9(d)(5)(iii); and provided, further, that
any such transferee who becomes a Substantial Claimholder shall file with
the Court, and serve upon GTAT, GTATs proposed counsel and the
Committee counsel, a notice of such status, in the form annexed to the
Orders as Exhibit 4, within ten (10) business days of the later of (i) the
date of the entry of the Interim Order or the Final Order, as applicable, by
the Court and (ii) the date on which such person or Entity becomes a
Substantial Claimholder.
(vi) Definitions. For purposes of this Motion and the Orders, the following
terms have the following meanings:
(1) Applicable Percentage. Applicable Percentage means, if only
one class of Affected Securities is to be issued pursuant to the
terms of the 382(1)(5) Plan and holders within any class of Claims
will receive a pro rata distribution of the Affected Securities,
4.75% of the number of such shares that the Debtors reasonably
estimate will be issued at the effective date of such 382(1)(5) Plan,
as determined for U.S. federal income tax purposes. If more than
one class of the common stock or any other equity securities
(including securities that are treated as equity securities for U.S.
federal income tax purposes) of the reorganized Debtors (or any
successor), including Options (the Affected Securities), is to be
distributed pursuant to the terms of the 382(1)(5) Plan or holders
within a class of Claims may receive a disproportionate
distribution of such securities relative to other holders in the same
class, the Applicable Percentage shall be determined by GTAT in
its reasonable judgment in a manner consistent with the estimated
range of values for the equity to be distributed reflected in the
valuation analysis set forth in the 382(1)(5) Plan and disclosure
statement, and shall be expressed in a manner that makes clear the
number of shares or other interests in each class of Affected
Securities that would constitute the Applicable Percentage.
(2) Beneficial Ownership. Beneficial ownership of a Claim means:
(x) the beneficial ownership of a Claim as determined in
accordance with applicable rules under Section 382, the Treasury
Regulations promulgated thereunder, and rulings issued by the IRS
(for such purpose, treating a Claim as if it is stock), and, to the
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 33 of 101
14
extent provided in those rules from time to time, shall include (A)
direct and indirect ownership (e.g., a holding company would be
considered to beneficially own all Claims owned or acquired by its
subsidiaries), and (B) ownership by a holders family members and
any group of persons acting pursuant to a formal or informal
understanding to make a coordinated acquisition of Claims and/or
stock; and
(y) the beneficial ownership of an Option (irrespective of the
purpose for which such Option was issued, created, or acquired).
(3) Claim. A Claim means any unsecured claim under which any of
the Debtors is the obligor, including the 2017 GT Notes and the
2020 GT Notes. In making this determination, in the case of a
secured claim, that portion of the claim (including such portion
attributable to accrued and unpaid interest) that exceeds the current
fair market value of the security shall be considered an unsecured
Claim. In calculating the amount of any Claims under the
Procedures, any applicable intercreditor agreements, including
subordination agreements, shall be given effect in accordance with
their terms.
(4) Entity. Entity has the meaning set forth in paragraph (b)(i)(l)
above.
(5) Maximum Amount. Maximum Amount means for each person
or Entity and by class or other applicable breakdown of Claims, the
greater of (A) the applicable Threshold Amount and (B) the
Protected Amount (as hereinafter defined) (if any) for such
Electing Claimholder.
(6) Newly Traded Claims. Newly Traded Claims means Claims (i)
with respect to which a person or Entity acquired beneficial
ownership after the date that was eighteen (18) months before the
Petition Date; and (ii) that are not ordinary course claims, within
the meaning of Treasury Regulations section 1.382- 9(d)(2)(iv), of
which the same person or Entity has always had beneficial
ownership.
(7) Option. Option has the meaning given to such term under
Treasury Regulations section 1.382-4(d)(9)(i), with respect to the
acquisition of a Claim or any consideration (including equity)
distributed in respect of any Claim pursuant to a plan of
reorganization or applicable bankruptcy court order.
(8) Permitted Transferee. A Permitted Transferee with respect to an
Electing Claimholder is a person or Entity whose holding of a
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Order Page 34 of 101
15
Claim would not result in such Electing Claimholder having
beneficial ownership of such Claim.
(9) Protected Amount. Protected Amount means the amount of
Claims (by class or other applicable breakdown) of which a holder
had beneficial ownership on the Petition Date, increased by the
amount of Claims of which such holder acquires, directly or
indirectly, beneficial ownership pursuant to trades entered into
before the Petition Date that had not yet closed as of the Petition
Date minus the amount of Claims of which such holder sells,
directly or indirectly, beneficial ownership pursuant to trades
entered into before the Petition Date that had not yet closed as of
the Petition Date.
(10) Substantial Claimholder. A Substantial Claimholder means any
person or Entity that beneficially owns an aggregate dollar amount
of Claims against the Debtors, or any Entity controlled by such
person or Entity through which such person or Entity beneficially
owns Claims against the Debtors, of more than the Threshold
Amount.
For the avoidance of doubt, Section 382, the Treasury Regulations
promulgated thereunder, and all relevant IRS and judicial authority
shall apply in determining whether the Claims of several persons
and/or Entities must be aggregated when testing for Substantial
Claimholder status, treating Claims as if they were stock.
(11) Threshold Amount. Threshold Amount means, initially,
$20,615,000, which amount may be subsequently increased or
decreased as GTAT may determine to be appropriate in the Notice
of 382(1)(5) Plan or thereafter in compliance with the Orders.
(12) 2017 GT Notes. 2017 GT Notes means the 3.00% Convertible
Senior Notes maturing October 1, 2017.
(13) 2020 GT Notes. 2020 GT Notes means the 3.00% Convertible
Senior Notes maturing December 15, 2020.
5. Any person or Entity acquiring and/or disposing of GT Stock or a Claim in
violation of the restrictions set forth herein, or failing to comply with the Procedures, shall be
subject to such sanctions as the Court may consider appropriate pursuant to this Courts equitable
power prescribed in section 105(a) of the Bankruptcy Code
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Order Page 35 of 101
16
6. The notice substantially in the form annexed to the Motion as Exhibit D (the
Final Procedures Notice) is approved.
7. The notices substantially in the form annexed hereto as Exhibits 1 to 7 are
approved.
8. As soon as reasonably practicable after entry of this Order, GTAT shall serve the
Procedures Notice on: (a) the Office of the United States Trustee for Region 1, 1000 Elm Street,
Suite 605 Manchester, NH 03101, Attn: Geraldine L. Karonis; (b) the creditors holding the 30
largest unsecured claims against GTATs estates (on a consolidated basis); (c) the indenture
trustee for the Debtors (i) 3.00% Convertible Senior Notes due 2017, and (ii) 3.00% Convertible
Senior Notes due 2020 (collectively, the GT Notes), U.S. Bank National Association (U.S.
Bank), 60 Livingston Avenue, St. Paul, MN 55107, Attn: Hazrat R. Haniff; (d) U.S. Securities
and Exchange Commission, 100 F Street, NE, Washington, DC 20549 (the SEC); (e) any
transfer agents for GT Stock; (f) those holders of GT Stock who have filed Forms 13D and 13G
with the SEC; and (g) those parties who have formally filed requests for notice in these chapter
11 cases pursuant to Bankruptcy Rule 2002 (collectively, the Notice Parties).
9. Upon receipt of the Procedures Notice, (i) U.S. Bank, as Indenture Trustee for the
GT Notes, shall send the Procedures Notice to all holders of GT Notes registered with the
Indenture Trustee, (ii) any transfer agents shall send the Procedures Notice to all holders of GT
Stock registered with the transfer agent, (iii) any registered holder shall, in turn, provide the
Procedures Notice to any holder for whose account the registered holder holds GT Stock and/or
GT Notes, and (iv) any holder shall, in tum, provide the Procedures Notice to any person or
entity for whom the holder holds GT Stock and/or GT Notes.
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Order Page 36 of 101
17
10. The Procedures Notice shall be posted on the website established by GTATs
claims agent, Kurtzman Carson Consultants LLC, at http://www.kccllc.net/GTAT.
11. Notice of the Motion as provided therein shall be deemed good and sufficient
notice of the Motion.
12. GTAT may waive, in writing, any and all restrictions, stays, and notification
procedures contained in this Order.
13. The relief granted in this Order is intended solely to permit GTAT to protect,
preserve and maximize the value of its Tax Attributes. Accordingly, except to the extent this
Order expressly conditions or restricts trading in claims against or interests in GTAT, nothing in
this Order or in the Motion shall or shall be deemed to prejudice, impair or otherwise alter or
affect the rights of any holders of claims against or interests in the Debtors, including in
connection with the treatment of any such claims or interests under any plan of reorganization.
14. The requirement set forth in LBR 7102(b)(2) that any motion filed shall have an
accompanying memorandum of law is waived.
15. The requirements set forth in this Order are in addition to the requirements of all
applicable law and do not excuse compliance therewith.
16. GTAT is authorized to take all actions necessary to effectuate the relief granted
pursuant to this Order in accordance with the Motion.
17. Notwithstanding the possible applicability of Rules 6004(h), 7062, 9014 of the
Federal Rules of Bankruptcy Procedure or otherwise, the terms and conditions of this Order shall
be immediately effective and enforceable upon its entry.
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Order Page 37 of 101
18
18. This Court retains jurisdiction with respect to all matters arising from or related to
this Order.
Dated: _______________, 2014
Manchester, NH
_________________________________
CHIEF UNITED STATES BANKRUPTCY JUDGE
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 38 of 101
Exhibit 1
Substantial Stock Ownership Notice
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 39 of 101
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
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Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF SUBSTANTIAL STOCK OWNERSHIP
PLEASE TAKE NOTICE that ___________________________ (the Filer) hereby
provides notice (the Notice) that, as of [Date], the Filer beneficially owns ______ shares of
stock in GT Advanced Technologies Inc. (GT Stock), which represents ____ % of the total
amount of GT Stock currently outstanding.
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of the
Filer is _____ .
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, the Filer hereby
declares that it has examined this Notice and 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.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, Pursuant To
Bankruptcy Code Sections 105(a) And 362, Establishing Notification Procedures And Approving
Restrictions On Certain Transfers Of Claims Against And Equity Interests In The Debtors Nunc
Pro Tunc To The Petition Date (the Order), this Notice is being filed with the Court and served
upon GTAT, GTATs counsel and the Committees counsel.
2
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Order.
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Order Page 40 of 101
2
For purposes of this Notice, (i) beneficial ownership (or any variation thereof) of GT
Stock and Options to acquire GT Stock) shall be determined in accordance with applicable rules
under section 382 of the Internal Revenue Code of 1986, as amended, the U.S. Department of
Treasury regulations (Treasury Regulations) promulgated thereunder and rulings issued by the
Internal Revenue Service, and, thus, to the extent provided in those rules, from time to time shall
include, without limitation, (A) direct and indirect ownership (e.g., a holding company would be
considered to beneficially own all stock owned or acquired by its subsidiaries), (B) ownership by
a holders family members and any group of persons acting pursuant to a formal or informal
understanding to make a coordinated acquisition of stock and (C) in certain cases, the ownership
of an Option (as defined below) to acquire GT Stock; and (v) an Option to acquire stock
includes 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 or
otherwise not currently exercisable.
If applicable, the Filer is represented by _________, Attn:____.
Respectfully submitted,
(Name of Filer)
By:________________________________
Name:______________________________
Address:____________________________
___________________________________
Telephone:__________________________
Facsimile:___________________________
Dated:______________________________
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 41 of 101
Exhibit 2
Equity Acquisition Notice
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 42 of 101
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
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x
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:
:
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Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF INTENT TO PURCHASE,
ACQUIRE OR OTHERWISE ACCUMULATE GT STOCK
PLEASE TAKE NOTICE that _____________ (the Filer) hereby provides notice (the
Notice) of its intention to purchase, acquire or otherwise accumulate one or more shares of
common stock in GT Advanced Technologies Inc. (GT Stock) or an Option (as defined below)
with respect to GT Stock (the Proposed Transfer).
PLEASE TAKE FURTHER NOTICE that the Filer currently beneficially owns
_______shares of GT Stock, which represents__% of the total amount of the GT Stock currently
outstanding.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Proposed Transfer, the Filer
proposes to purchase, acquire or otherwise accumulate ______ shares of GT Stock and/or
Options to acquire shares of GT Stock.
If the Proposed Transfer is permitted to occur, the Filer will beneficially own
shares of GT Stock.
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of the
Filer is ______.
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, the Filer
hereby declares that it has examined this Notice and accompanying attachments (if any), and, to
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
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Order Page 43 of 101
2
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.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, Pursuant To
Bankruptcy Code Sections 105(a) And 362, Establishing Notification Procedures And Approving
Restrictions On Certain Transfers Of Claims Against And Equity Interests In The Debtors Nunc
Pro Tunc To The Petition Date (the Order), this Notice is being filed with the Court and served
upon GTAT, GTATs counsel and the Committees counsel.
2
PLEASE TAKE FURTHER NOTICE that GTAT has fifteen (15) business days after
the filing of this Notice to object to the Proposed Transfer described herein. If GTAT files an
objection, such Proposed Transfer will not be effective unless approved by a final and
nonappealable order of the Court. If GTAT does not object within such fifteen (15) business day
period, or if the Debtors provide written authorization approving the Proposed Transfer prior to
the end of such fifteen (15) business day period, then such Proposed Transfer may proceed solely
as specifically described in this Notice.
PLEASE TAKE FURTHER NOTICE that any further transactions contemplated
by the Filer that may result in the Filer purchasing, acquiring or otherwise accumulating shares
of GT Stock (or Options with respect thereto) will each require an additional notice filed with the
Court to be served in the same manner as this Notice.
For purposes of this Notice, (i) beneficial ownership (or any variation thereof) of GT
Stock and Options to acquire GT Stock) shall be determined in accordance with applicable rules
under section 382 of the Internal Revenue Code of 1986, as amended, the U.S. Department of
Treasury regulations (Treasury Regulations) promulgated thereunder and rulings issued by the
Internal Revenue Service, and, thus, to the extent provided in those rules, from time to time shall
include, without limitation, (A) direct and indirect ownership (e.g., a holding company would be
considered to beneficially own all stock owned or acquired by its subsidiaries), (B) ownership by
a holders family members and any group of persons acting pursuant to a formal or informal
understanding to make a coordinated acquisition of stock and (C) in certain cases, the ownership
of an Option (as defined below) to acquire GT Stock; and (v) an Option to acquire stock
includes 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 or
otherwise not currently exercisable.
If applicable, the Filer is represented by _________, Attn:____.
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Order.
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Order Page 44 of 101
3
Respectfully submitted,
(Name of Filer)
By:________________________________
Name:______________________________
Address:____________________________
___________________________________
Telephone:__________________________
Facsimile:___________________________
Dated:______________________________
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 45 of 101
Exhibit 3
Equity Disposition Notice
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 46 of 101
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
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x
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF INTENT TO SELL,
TRADE OR OTHERWISE TRANSFER GT STOCK
PLEASE TAKE NOTICE that _____________ (the Filer) hereby provides notice (the
Notice) of its intention to sell, trade or otherwise transfer shares of common stock in GT
Advanced Technologies Inc. (GT Stock) or an Option (as defined below) with respect to such
GT Stock (the Proposed Transfer).
PLEASE TAKE FURTHER NOTICE that the Filer currently beneficially owns
shares of GT Stock, which represents __% of the total amount of the GT Stock currently
outstanding.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Proposed Transfer, the Filer
proposes to sell, trade or otherwise transfer _____ shares of GT Stock and/or Options to acquire
shares of GT Stock. The following table sets forth a summary of the description and the timing
of the proposed sale, trade, or other transfer.
Description Date to be Disposed
(Attached additional pages if necessary)
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 47 of 101
2
If the Proposed Transfer is permitted to occur, the Filer will own shares of GT
Stock and/or Options to acquire ____ shares of GT Stock.
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of the
Filer is ______.
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, the Filer hereby
declares that it has examined this Notice and 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.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, Pursuant To
Bankruptcy Code Sections 105(a) And 362, Establishing Notification Procedures And Approving
Restrictions On Certain Transfers Of Claims Against And Equity Interests In The Debtors Nunc
Pro Tunc To The Petition Date (the Order), this Notice is being filed with the Court and served
upon GTAT, GTATs counsel and the Committees counsel.
2
PLEASE TAKE FURTHER NOTICE that GTAT has fifteen (15) business days after
the filing of this Notice to object to the Proposed Transfer described herein. If GTAT files an
objection, such Proposed Transfer will not be effective unless approved by a final and
nonappealable order of the Court. If GTAT does not object within such fifteen (15) business day
period, or if the Debtors provide written authorization approving the Proposed Transfer prior to
the end of such fifteen (15) business day period, then such Proposed Transfer may proceed solely
as specifically described in this Notice.
PLEASE TAKE FURTHER NOTICE that any further transactions contemplated
by the Filer that may result in the Filer purchasing, acquiring or otherwise accumulating shares
of GT Stock (or Options with respect thereto) will each require an additional notice filed with the
Court to be served in the same manner as this Notice.
For purposes of this Notice, (i) beneficial ownership (or any variation thereof) of GT
Stock and Options to acquire GT Stock) shall be determined in accordance with applicable rules
under section 382 of the Internal Revenue Code of 1986, as amended, the U.S. Department of
Treasury regulations (Treasury Regulations) promulgated thereunder and rulings issued by the
Internal Revenue Service, and, thus, to the extent provided in those rules, from time to time shall
include, without limitation, (A) direct and indirect ownership (e.g., a holding company would be
considered to beneficially own all stock owned or acquired by its subsidiaries), (B) ownership by
a holders family members and any group of persons acting pursuant to a formal or informal
understanding to make a coordinated acquisition of stock and (C) in certain cases, the ownership
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Order.
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 48 of 101
3
of an Option (as defined below) to acquire GT Stock; and (v) an Option to acquire stock
includes 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 or
otherwise not currently exercisable.
If applicable, the Filer is represented by _________, Attn:____.
Respectfully submitted,
(Name of Filer)
By:________________________________
Name:______________________________
Address:____________________________
___________________________________
Telephone:__________________________
Facsimile:___________________________
Dated:______________________________
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 49 of 101
Exhibit 4
Substantial Claimholder Status Notice
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 50 of 101
2
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
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:
x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF SUBSTANTIAL CLAIMHOLDER STATUS
PLEASE TAKE NOTICE THAT _______ (the Filer) hereby provides notice (the
Notice) that the Filer is a Substantial Claimholder of Claims against GT Advanced
Technologies Inc. (GT) and its affiliated debtors as debtors in possession (collectively,
GTAT or the Debtors) in Case No. 14-____, currently pending before the United States
Bankruptcy Court for the District of New Hampshire.
PLEASE TAKE FURTHER NOTICE that the following table sets forth the
following information:
1. In the case of Claims that are owned directly by the Filer, the table sets forth (i)
the dollar amount of such Claims; and (ii) the date(s) on which such Claims were acquired.
2. In the case of Claims that are not owned directly by the Filer but are nonetheless
Beneficially Owned by the Filer, the table sets forth (i) the name(s) of each record or legal
owner of Claims that are Beneficially Owned (as defined below) by the Filer; (ii) the dollar
amount of such Claims; and (iii) the date(s) on which such Claims were acquired.
Class Name of Owner Dollar Amount Owned
2017 GT Notes
2020 GT Notes
(Attach additional pages if necessary)
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 51 of 101
3
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of the
Filer is ______ .
PLEASE TAKE FURTHER NOTICE that the Filer will provide GTAT with such
reasonable additional information pertaining to the Claims as GTAT shall request.
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, the Filer
hereby declares that it has examined this Notice and 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.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, Pursuant To
Bankruptcy Code Sections 105(a) And 362, Establishing Notification Procedures And
Approving Restrictions On Certain Transfers Of Claims Against And Equity Interests In The
Debtors Nunc Pro Tunc To The Petition Date (the Order), this Notice is being filed with the
Court and served upon GTAT, GTATs counsel and the Committees counsel.
2
This Notice is given in addition to, and not as a substitute for, any requisite notice under
Rule 3001(e) of the Federal Rules of Bankruptcy Procedure.
For purposes of this Notice:
(a) Beneficial Ownership shall be determined in accordance with applicable rules
under section 382 of the Internal Revenue Code of 1986, as amended, the U.S.
Department of Treasury regulations promulgated thereunder and rulings issued
by the Internal Revenue Service, and, thus, to the extent provided in those rules,
from time to time shall include, without limitation, (A) direct and indirect
ownership (e.g., a holding company would be considered to beneficially own all
stock owned or acquired by its subsidiaries); and (B) ownership by a holders
family members and any group of persons acting pursuant to a formal or
informal understanding to make a coordinated acquisition of stock; and (C) in
certain cases, the ownership of an Option to acquire Claims.
(b) Option means 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 or otherwise not currently exercisable.
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Order.
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 52 of 101
4
(c) Entity has the meaning given to it in Treasury Regulations section 1.382-3(a)
and shall include persons acting pursuant to a formal or informal understanding
among themselves to make a coordinated acquisition.
(d) 2017 GT Notes means the 3.00% Convertible Senior Notes maturing October
1, 2017.
(e) 2020 GT Notes means the 3.00% Convertible Senior Notes maturing
December 15, 2020.
(f) Claim means any unsecured claim under which any of the Debtors is the
obligor, including the 2017 GT Notes and the 2020 GT Notes. In making this
determination, in the case of a secured claim, that portion of the claim (including
such portion attributable to accrued and unpaid interest) that exceeds the current
fair market value of the security shall be considered an unsecured Claim. In
calculating the amount of any Claims under the Procedures, any applicable
intercreditor agreements, including subordination agreements, shall be given
effect in accordance with their terms.
(g) Substantial Claimholder means any person or Entity that Beneficially Owns,
or any Entity controlled by such person or Entity through which such person or
Entity Beneficially Owns, a dollar amount of Claims of more than the Threshold
Amount.
(h) Threshold Amount. Threshold Amount means, initially, $20,615,000, which
amount may be subsequently increased or decreased as GTAT may determine to
be appropriate in the Notice of 382(1)(5) Plan or thereafter in compliance with
the Orders.
If applicable, the Filer is represented by _________, Attn:____.
Respectfully submitted,
(Name of Filer)
By:_______________________________
Name:_____________________________
Address:___________________________
__________________________________
Telephone:_________________________
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 53 of 101
5
Facsimile:__________________________
Dated:_____________________________
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 54 of 101
6
Exhibit 5
Claims Acquisition Notice
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 55 of 101
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
---------------------------------------------------------------
x
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF INTENT TO PURCHASE, ACQUIRE
OR OTHERWISE ACCUMULATE A CLAIM
PLEASE TAKE NOTICE THAT ________ (the Filer) hereby provides notice (the
Notice) of (i) its intent to purchase, acquire or otherwise accumulate directly a Claim or
Claims against GT Advanced Technologies Inc. (GT) and its affiliated debtors as debtors in
possession (collectively, GTAT or the Debtors) and/or (ii) a proposed purchase or
acquisition of Claims that, following the proposed acquisition, would be Beneficially Owned
by the Filer (any proposed transaction described in (i) or (ii), a Proposed Transfer).
PLEASE TAKE FURTHER NOTICE THAT, if applicable, on ______, the Filer
filed a Notice of Substantial Claimholder Status with the Court and served copies thereof on
GTAT, GTATs counsel and the Committees counsel.
PLEASE TAKE FURTHER NOTICE THAT the Filer is filing this notice as (check
one):
A Substantial Claimholder
A person or Entity that would, upon consummation of the Proposed Transfer, become
a Substantial Claimholder
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 56 of 101
2
PLEASE TAKE FURTHER NOTICE that the following table sets forth the
following information:
1. In the case of Claims that are owned directly by the Filer, the table sets forth (i)
the dollar amount of such Claims; and (ii) the date(s) on which such Claims were acquired.
2. In the case of Claims that are not owned directly by the Filer but are nonetheless
Beneficially Owned by the Filer, the table sets forth (i) the name(s) of each record or legal
owner of Claims that are Beneficially Owned (as defined below) by the Filer; (ii) the dollar
amount of such Claims; and (iii) the date(s) on which such Claims were acquired.
Class Name of Owner Dollar Amount
Owned
Date(s) Acquired
2017 GT Notes
2020 GT Notes
(Attach additional pages if necessary)
PLEASE TAKE FURTHER NOTICE that the following table sets forth the
following information:
1. If the Proposed Transfer involves the purchase or acquisition of Claims directly
by the Filer, the following table sets forth (i) the dollar amount of Claims proposed to be
purchased or acquired; and (ii) the date(s) of such Proposed Transfer.
2. If the Proposed Transfer involves the purchase or acquisition of Claims by a
person or Entity other than the Filer, but the Proposed Transfer nonetheless would increase the
dollar amount of Claims that are Beneficially Owned by the Filer, the following table sets forth
(i) the name(s) of each such person or Entity that proposes to purchase or acquire such Claims;
(ii) the dollar amount of Claims to be so purchased or acquired; and (iii) the date(s) of such
Proposed Transfer.
Class Record/Legal Owner Dollar Amount to be
Acquired
Dates(s) of
Proposed
Transfer
2017 GT Notes
2020 GT Notes
(Attach additional pages if necessary)
PLEASE TAKE FURTHER NOTICE that if the Proposed Transfer involves a
purchase or acquisition of Claims directly by the Filer and such Proposed Transfer would result
in (i) an increase in the Beneficial Ownership of Claims by a person or Entity (other than the
Filer) that currently is a Substantial Claimholder or (ii) a person or Entity (other than the Filer)
becoming a Substantial Claimholder, the following table sets forth (w) the name of each such
person or Entity; (x) the dollar amount of Claims that are Beneficially Owned by such person
or Entity prior to the Proposed Transfer; (y) the dollar amount of Claims that would be
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 57 of 101
3
Beneficially Owned by such person or Entity immediately following the Proposed Transfer;
and (z) the date(s) of the Proposed Transfer.
Class Name of Owner Dollar Amount
Currently Owned
Dollar
Amount to
be Acquired
Dates(s) of
Proposed
Transfer
2017 GT Notes
2020 GT Notes
(Attach additional pages if necessary)
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of the
Filer is ______.
PLEASE TAKE FURTHER NOTICE that, under penalties of perjury, the Filer
hereby declares that it has examined this Notice and 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.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, Pursuant To
Bankruptcy Code Sections 105(a) And 362, Establishing Notification Procedures And
Approving Restrictions On Certain Transfers Of Claims Against And Equity Interests In The
Debtors Nunc Pro Tunc To The Petition Date (the Order), this Notice is being filed with the
Court and served upon GTAT, GTATs counsel and the Committees counsel.
2
PLEASE TAKE FURTHER NOTICE that the Filer hereby acknowledges that if the
Proposed Transfer is not approved in writing by the Debtors within fifteen (15) business days
after the filing of this Notice, such Proposed Transfer shall be deemed rejected and will not be
effective ab initio. If the Debtors provide written authorization approving the Proposed
Transfer prior to the end of such fifteen (15) business day period, then such Proposed Transfer
may proceed solely as specifically described in this Notice.
PLEASE TAKE FURTHER NOTICE that any further transactions that may result in
the Filer increasing its Beneficial Ownership of Claims will each require an additional notice
filed with the Court to be served in the same manner as this Notice.
This Notice is given in addition to, and not as a substitute for, any requisite notice under
Rule 3001(e) of the Federal Rules of Bankruptcy Procedure.
For purposes of this Notice:
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Order.
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 58 of 101
4
(a) Beneficial Ownership shall be determined in accordance with applicable rules
under section 382 of the Internal Revenue Code of 1986, as amended, the U.S.
Department of Treasury regulations promulgated thereunder and rulings issued
by the Internal Revenue Service, and, thus, to the extent provided in those rules,
from time to time shall include, without limitation, (A) direct and indirect
ownership (e.g., a holding company would be considered to beneficially own all
stock owned or acquired by its subsidiaries); and (B) ownership by a holders
family members and any group of persons acting pursuant to a formal or
informal understanding to make a coordinated acquisition of stock; and (C) in
certain cases, the ownership of an Option to acquire Claims.
(b) Option means 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 or otherwise not currently exercisable.
(c) Entity has the meaning given to it in Treasury Regulations section 1.382-3(a)
and shall include persons acting pursuant to a formal or informal understanding
among themselves to make a coordinated acquisition.
(d) 2017 GT Notes means the 3.00% Convertible Senior Notes maturing October
1, 2017.
(e) 2020 GT Notes means the 3.00% Convertible Senior Notes maturing
December 15, 2020.
(f) Claim means any unsecured claim under which any of the Debtors is the
obligor, including the 2017 GT Notes and the 2020 GT Notes. In making this
determination, in the case of a secured claim, that portion of the claim (including
such portion attributable to accrued and unpaid interest) that exceeds the current
fair market value of the security shall be considered any unsecured Claim. In
calculating the amount of any Claims under the Procedures, any applicable
intercreditor agreements, including subordination agreements, shall be given
effect in accordance with their terms.
(g) Substantial Claimholder means any person or Entity that Beneficially Owns,
or any Entity controlled by such person or Entity through which such person or
Entity Beneficially Owns, a dollar amount of Claims of more than the Threshold
Amount.
(h) Threshold Amount. Threshold Amount means, initially, $20,615,000, which
amount may be subsequently increased or decreased as GTAT may determine to
be appropriate in the Notice of 382(1)(5) Plan or thereafter in compliance with
the Orders.
If applicable, the Filer is represented by _________, Attn:____.
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 59 of 101
5
Respectfully submitted,
(Name of Filer)
By:_______________________________
Name:_____________________________
Address:___________________________
__________________________________
Telephone:_________________________
Facsimile:__________________________
Dated:_____________________________
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 60 of 101
Exhibit 6
Election Notice
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 61 of 101
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
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x
:
:
:
:
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:
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x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF ELECTION AND CONSENT UNDER THE INTERIM ORDER
PURSUANT TO SECTIONS 105 AND 362 OF THE BANKRUPTCY CODE
ESTABLISHING NOTIFICATION PROCEDURES AND APPROVING
RESTRICTIONS ON CERTAIN TRANSFERS OF CLAIMS AGAINST AND
INTERESTS IN DEBTORS ESTATES
PLEASE TAKE NOTICE that [Name of person or Entity
2
] (the Filer)
herewith elects to become an Electing Claimholder under the Interim Order Pursuant to
Sections 105(a) and 362 of the Bankruptcy Code Establishing Notification Procedures and
Approving Restrictions on Certain Transfers of Claims Against and Interests in the Debtors
Estates (the Order) and agrees to be bound by the terms set forth therein and below.
3
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of
the Filer is ______________.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, this Notice is
being filed with the Court and served upon GTAT, GTATs counsel, and the Committees
counsel.
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
For this purpose an Entity shall have the meaning set forth in section 1.382-3(a) of the Treasury
Regulations.
3
Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms
in the Order.
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 62 of 101
2
PLEASE TAKE FURTHER NOTICE that, in the event that the Debtors deliver
notice (a Sell-Down Notice) that an Electing Claimholder must sell, cause to sell, or
otherwise transfer all or a portion of its beneficial ownership of the excess of (x) the amount of
Claims beneficially owned by such Electing Claimholder over (y) such Electing Claimholders
Maximum Amount to unrelated transferees each of which does not own immediately prior to
such transfer, and will not own after the contemplated consummation of such transfer, an
Excess Amount with respect to such transferee, then the Electing Claimholder shall sell, cause
to sell, or otherwise transfer the portion of the Excess Amount specified in the Sell-Down
Notice, prior to the Sell-Down date.
PLEASE TAKE FURTHER NOTICE that the Electing Claimholder agrees not
to sell, cause to sell, or otherwise transfer Claims to any transferee if the Electing Claimholder
has a reasonable basis to believe that (1) such transferee is or would become as a result of such
sale or transfer a Substantial Claimholder, and (2) the transferee is an Electing Claimholder. In
effecting any sale or other transfer of Claims pursuant to a Sell-Down Notice, an Electing
Claimholder shall, to the extent that it is reasonably feasible to do so within normal constraints
of the market in which such sale takes place, notify the acquirer of such Claims of the existence
of the Order and the Equity Forfeiture Provision (it being understood that, in all cases in which
there is direct communication between a sales person and a customer, including, without
limitation, communication via telephone, e-mail and instant messaging, the existence of the
Order and the Equity Forfeiture Provision shall be included in such sales persons summary of
the transaction).
PLEASE TAKE FURTHER NOTICE that, until the date that the Electing
Claimholder has sold, caused to sell or otherwise transferred that portion of the Excess Amount
specified in the Sell-Down Notice, the Electing Claimholder (either directly or through its
advisors) shall not participate in formulating any chapter 11 plan or reorganization of or on
behalf of the Debtors; provided, however, that the following activities shall not constitute
participation in formulating a plan of reorganization if, in pursuing such activities, the relevant
Electing Claimholder does not disclose or otherwise make evident (unless compelled to do so
by a court of competent jurisdiction or some other applicable legal requirement) to the Debtors
that such Electing Claimholder has beneficial ownership of Newly Traded Claims: filing an
objection to a proposed disclosure statement or to confirmation of a proposed plan of
reorganization; voting to accept or reject a proposed plan of reorganization; reviewing or
commenting on a proposed business plan; providing information on a confidential basis to the
attorneys for the Debtors; general membership on an official committee or an ad hoc
committee; or taking any action required by the order of the Court.
PLEASE TAKE FURTHER NOTICE that the Electing Claimholder
acknowledges and agrees that, as sanction for violating the Electing Claimholders obligations
under this election, the Electing Claimholder may be subject to the Equity Forfeiture Provision
under the Order.
PLEASE TAKE FURTHER NOTICE that the Electing Claimholder
acknowledges and agrees to provide a Notice of Compliance to the Debtors and Debtors
counsel within five (5) business days after the later of (i) entry of an order approving the
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 63 of 101
3
382(l)(5) Plan, (ii) the Sell-Down Date and (iii) such other date specified in the Sell-Down
Notice (but in any event before the effective date of the 382(l)(5) Plan) that such Electing
Claimholder has complied fully with the terms and conditions set forth in this Notice and the
Sell-Down Notice.
PLEASE TAKE FURTHER NOTICE that this Notice is given in addition to,
and not as a substitute for, any requisite notice under Rule 3001(e) of the Federal Rules of
Bankruptcy Procedure.
If applicable, the Filer is represented by _________, Attn:____.
Respectfully submitted,
(Name of Filer)
By:_______________________________
Name:_____________________________
Address:___________________________
__________________________________
Telephone:_________________________
Facsimile:__________________________
Dated:_____________________________
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 64 of 101
4
Exhibit 7
Notice of Compliance
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 65 of 101
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
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x
:
:
:
:
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x
Chapter 11
Case No. 14-_______ (____)
Jointly Administered
NOTICE OF COMPLIANCE WITH SELL-DOWN NOTICE
PLEASE TAKE NOTICE that [person or Entity
2
] (the Filer) hereby provides
notice (the Notice) that the Filer has complied in full with the terms and conditions set forth
in the Interim Order Pursuant to Sections 105(a) and 362 of the Bankruptcy Code Establishing
Notification Procedures and Approving Restrictions on Certain Transfers of Claims Against
and Interests in the Debtors Estates (the Order), as further set forth in the Sell-Down Notice
issued to the Filer, such that the Filer does not and will not beneficially own an Excess Amount
of Claims as of the Sell-Down Date and at all times through the effective date of the 382(l)(5)
Plan.
3
PLEASE TAKE FURTHER NOTICE that the taxpayer identification number of
the Filer is ______________.
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, this Notice is
being filed with the Court and served upon the Debtors, the Debtors counsel, and the
Creditors Committees counsel.
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
For the purpose an Entity shall have the meaning set form in section 1.382-3(a) of the Treasury
Regulations.
3
Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms
in the Order.
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 66 of 101
2
PLEASE TAKE FURTHER NOTICE that this Notice is given in addition to,
and not as a substitute for, any requisite notice under Rule 3001(e) of the Federal Rules of
Bankruptcy Procedure.
If applicable, the Filer is represented by _________, Attn:____.
Respectfully submitted,
(Name of Filer)
By:_______________________________
Name:_____________________________
Address:___________________________
__________________________________
Telephone:_________________________
Facsimile:__________________________
Dated:_____________________________
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 67 of 101
3
Exhibit C
Interim Procedures Notice
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 68 of 101
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
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x
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Joint Administration Requested
NOTICE ESTABLISHING INTERIM NOTIFICATION PROCEDURES AND
RESTRICTIONS ON CERTAIN TRANSFERS AND DISPOSITIONS OF CLAIMS
AGAINST AND INTERESTS IN THE DEBTORS ESTATES
TO ALL PERSONS OR ENTITIES WITH EQUITY INTERESTS IN GT ADVANCED
TECHNOLOGIES INC. AND HOLDERS OF SUBSTANTIAL CLAIMS:
2
PLEASE TAKE NOTICE that on ______ (the Petition Date), GT Advanced
Technologies Inc. (GT) and its affiliated debtors as debtors in possession in the above-
captioned cases (collectively, GTAT or the Debtors) commenced a case under chapter 11
of title 1 of the United States Code (the Bankruptcy Code) in the United States Bankruptcy
Court for the District of New Hampshire (the Court). Section 362(a) of the Bankruptcy Code
operates as a stay of any act to obtain possession of property of GTATs estates or to exercise
control over property of GTATs estates.
PLEASE TAKE FURTHER NOTICE that on ______, the Court entered the Interim
Order, Pursuant To Bankruptcy Code Sections 105(a) And 362, Establishing Notification
Procedures And Approving Restrictions On Certain Transfers Of Claims Against And Equity
Interests In The Debtors Nunc Pro Tunc To The Petition Date (the Order) (i) finding that
GTATs net operating loss carryforwards (NOLs) and certain other tax attributes (together
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Debtors Ex Parte Motion For Entry Of Order, Pursuant To Bankruptcy Code Sections 105(a) And 362,
Establishing Notification Procedures And Approving Restrictions On Certain Transfers Of Claims
Against And Equity Interests In The Debtors Nunc Pro Tunc To The Petition Date (the Motion).
Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final
Order Page 69 of 101
2
with the NOLs, the Tax Attributes) are property of GTATs estates and are protected by
section 362(a) of the Bankruptcy Code; (ii) finding that trading in or disposition of common
stock of GT (GT Stock), or options to acquire such stock, and/ or claims against GTAT could
severely limit GTATs ability to use the Tax Attributes for purposes of the Internal Revenue
Code of 1986, as amended (the Tax Code), both during the pendency of the bankruptcy cases
and following the effective date of a plan of reorganization, and (iii) approving the procedures
set forth below to preserve the Tax Attributes pursuant to sections 105(a) and 362(a) of the
Bankruptcy Code.
ANY ACQUISITION IN VIOLATION OF THE RESTRICTIONS SET FORTH
BELOW SHALL BE NULL AND VOID AB I NI TI OAS AN ACT IN VIOLATION OF
THE AUTOMATIC STAY UNDER SECTIONS 105(a) AND 362 OF THE
BANKRUPTCY CODE.
PLEASE TAKE FURTHER NOTICE that the following procedures and restrictions
have been approved by the Court and shall apply to (a) holding and trading in GT Stock, and
(b) holding and trading in claims against GTAT:
(a) GT StockOwnership, Acquisition, andDisposition
(i) Notice of Substantial GT Stock Ownership. Any person or entity (as
such latter term is defined in section 1.382-3(a) of the Treasury
Regulations, including persons acting pursuant to a formal or informal
understanding among themselves to make a coordinated acquisition, an
Entity) that beneficially owns, at any time on or after the Petition Date,
GT Stock (as hereinafter defined) in an amount sufficient to qualify such
person or Entity as a Substantial Equityholder (as hereinafter defined)
shall file with the Court, and serve upon GTAT, GTATs proposed
counsel, and the counsel for any statutory committee of unsecured
creditors appointed in these cases (the Committee), a Notice of
Substantial Stock Ownership (a Substantial Ownership Notice), in the
form attached as Exhibit 1 to the Orders, which describes specifically
and in detail the GT Stock ownership of such person or Entity, on or
before the date that is the later of: (a) ten (10) business days after the
entry of the Interim Order or the Final Order, as applicable, and (b) ten
(10) business days after that person or Entity qualifies as a Substantial
Equityholder. At the election of the Substantial Equityholder, the
Substantial Ownership Notice to be filed with the Court (but not such
notice served upon GTAT, GTATs proposed counsel and the
Committees counsel) may be redacted to exclude the Substantial
Equityholders taxpayer identification number and the number of shares
of GT Stock that the Substantial Equityholder beneficially owns.
(ii) Acquisition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer of equity securities (including
Options, as hereinafter defined, to acquire such securities) that would
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result in an increase in the amount of GT Stock beneficially owned by
any person or Entity that currently is or subsequently becomes a
Substantial Equityholder or that would result in a person or Entity
becoming a Substantial Equityholder (a Proposed Equity Acquisition
Transaction), such person, Entity or Substantial Equityholder (a
Proposed Equity Transferee) shall file with the Court, and serve upon
GTAT, GTATs proposed counsel, and the Committees counsel, a
Notice of Intent to Purchase, Acquire, or Otherwise Accumulate GT
Stock (an Equity Acquisition Notice), in the form annexed as Exhibit 2
to the Orders, which describes specifically and in detail the proposed
transaction in which GT Stock is to be acquired. At the election of the
Proposed Equity Transferee, the Equity Acquisition Notice that is filed
with the Court (but not such notice served upon GTAT, GTATs
proposed counsel and the Committees counsel) may be redacted to
exclude the Proposed Equity Transferees taxpayer identification number
and the number of shares of GT Stock that the Proposed Equity
Transferee beneficially owns and proposes to purchase or otherwise
acquire.
(iii) Disposition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer or other disposition of equity
securities (including Options to acquire such securities) that would result
in a decrease in the amount of GT Stock beneficially owned by a
Substantial Equityholder or that would result in a person or Entity
ceasing to be a Substantial Equityholder (a Proposed Equity Disposition
Transaction, and together with a Proposed Equity Acquisition
Transaction, a Proposed Equity Transaction), such person, Entity, or
Substantial Equityholder (a Proposed Equity Transferor) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a Notice of Intent to Sell, Trade, or Otherwise
Transfer GT Stock (an Equity Disposition Notice, and together with an
Equity Acquisition Notice, an Equity Trading Notice), in the form
annexed as Exhibit 3 to the Orders, which describes specifically and in
detail the proposed transaction in which GT Stock would be transferred.
At the election of the Proposed Equity Transferor, the Equity Disposition
Notice that is filed with the Court (but not such notice served upon
GTAT, GTATs proposed counsel and the Committees counsel) may be
redacted to exclude the Proposed Equity Transferors taxpayer
identification number and the number of shares of GT Stock that the
Proposed Equity Transferor beneficially owns and proposes to sell or
otherwise transfer.
(iv) Objection Procedures. GTAT and the Committee shall have fifteen (15)
business days after the filing of an Equity Trading Notice (the Equity
Objection Deadline) to file with the Court and serve on a Proposed
Equity Transferee or a Proposed Equity Transferor, as the case may be,
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an objection to any proposed transfer of equity securities (including
Options to acquire such securities) described in such Equity Trading
Notice on the grounds that such transfer may adversely affect GTATs
ability to utilize the Tax Attributes (an Equity Objection) as a result of
an ownership change under Section 382.
(1) If GTAT or the Committee files an Equity Objection by the
Equity Objection Deadline, then the Proposed Equity Transaction
shall not be effective unless approved by a final and
nonappealable order of this Court.
(2) If GTAT or the Committee do not file an Equity Objection by the
Equity Objection Deadline, or if GTAT and the Committee
provide written authorization to the Proposed Equity Transferee
or the Proposed Equity Transferor, as the case may be, approving
the Proposed Equity Transaction, prior to the Equity Objection
Deadline, then such Proposed Equity Transaction may proceed
solely as specifically described in the Equity Trading Notice.
(v) Additional Acquisitions. Any additional transaction within the scope of
paragraphs (a)(ii) or (a)(iii) above must be the subject of an additional
notice as set forth herein with the applicable waiting period.
(vi) Definitions. For purposes of this Motion and the Proposed Order, the
following terms have the following meanings:
(1) Substantial Equityholder. A Substantial Equityholder is any
person or Entity that beneficially owns, or any Entity controlled
by such person or Entity through which such person or Entity
beneficially owns, at least 4.75% of all issued and outstanding
shares of GT Stock.
(2) Beneficial Ownership. Beneficial ownership (or any variation
thereof of GT Stock and Options to acquire GT Stock) shall be
determined in accordance with applicable rules under Section
382, the Treasury Regulations promulgated thereunder and
rulings issued by the Internal Revenue Service, and, thus, to the
extent provided in those rules, from time to time shall include,
without limitation, (A) direct and indirect ownership (e.g., a
holding company would be considered to beneficially own all
stock owned or acquired by its subsidiaries), (B) ownership by a
holders family members and any group of persons acting
pursuant to a formal or informal understanding to make a
coordinated acquisition of stock, and (C) to the extent provided in
Treasury Regulations section 1.382-4, the ownership of an
Option to acquire GT Stock.
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(3) Option. An Option to acquire stock includes 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 or otherwise not currently exercisable.
(4) GT Stock. GT Stock shall mean all common stock of GT. For
the avoidance of doubt, by operation of the definition of
beneficial ownership, an owner of an Option to acquire GT Stock
may be treated as the owner of such GT Stock.
(b) TradinginClaimsof GTAT
(i) Notice of Substantial Claimholder Status; Notice of 382(l)(5) Plan.
(1) Any person or Entity (as such term is defined in Treasury
Regulations section 1.382-3(a), including persons acting pursuant
to a formal or informal understanding among themselves to make
a coordinated acquisition) that currently is or becomes a
Substantial Claimholder (as hereinafter defined) shall file with
the Court and serve upon GTAT, GTATs proposed counsel, and
the Committees counsel, a notice of such status (a Notice of
Substantial Claimholder Status), in the form annexed to the
Orders as Exhibit 4, within ten (10) business days of the later of
(A) the entry of the Interim Order or the Final Order, as
applicable and (B) the date on which such person or Entity
becomes a Substantial Claimholder. At the election of the
Substantial Claimholder, the Notice of Substantial Claimholder
Status that is filed with the Court (but not the Notice of
Substantial Claimholder Status that is served upon GTAT,
GTATs proposed counsel, and the Committees counsel) may be
redacted to exclude the Substantial Claimholders taxpayer
identification number and the aggregate dollar amount of Claims
(as hereinafter defined) that the Substantial Claimholder
beneficially owns.
(2) Upon filing a plan and disclosure statement that contemplates the
potential utilization of section 382(1)(5) of the Tax Code (the
382(1)(5) Plan), GTAT shall (A) publish (or arrange for
publication of) a notice and provide a written notice to the Notice
Parties and Electing Claimholders (each as hereinafter defined),
disclosing the filing of such 382(1)(5) Plan and the potential
issuance of a Sell-Down Notice (as hereinafter defined) in
connection therewith on the website to be established by the
Debtors claims and noticing agent (the Claims and Noticing
Agent) and in the national edition of The Wall Street Journal (a
Notice of 382(1)(5) Plan), (B) identify the Threshold Amount
(as hereinafter defined) of Claims for status as a Substantial
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Claimholder and (C) request from each Electing Claimholder
(including a Deemed Electing Claimholder (as hereinafter
defined)) updated information regarding the aggregate amount of
Claims beneficially owned by such Electing Claimholder, which
updated information shall be delivered by such Electing
Claimholder to the Debtors within ten (10) business days of
receipt of the request therefor or, in the case of a Deemed
Electing Claimholder, ten (10) business days of the date of the
Notice of 382(1)(5) Plan.
For the avoidance of doubt, GTAT shall have no obligation under
the Orders to provide notice to any Deemed Electing Claimholder
of the matters set forth in this Paragraph (b)(i)(2), and the lack of
such notice shall not limit the obligation of a Deemed Electing
Claimholder to comply with the requirements of a Sell-Down
Notice (as hereinafter defined) or affect the application of the
Equity Forfeiture Provision (as hereinafter defined) with respect
to such Deemed Electing Claimholder.
(3) GTAT shall disclose the Threshold Amount in the Notice of
382(1)(5) Plan as of the date of the Notice of 382(1)(5) Plan
based on then available information, including any change in the
Threshold Amount. GTAT may adjust the Threshold Amount
based on the updated information from Electing Claimholders
pursuant to paragraph (b)(i)(2) herein. If the Threshold Amount is
adjusted, GTAT shall provide a notice of such adjusted amount in
the same manner as the Notice of 382(1)(5) Plan and such notice
shall be treated as an amended Notice of 382(1)(5) Plan, thereby
requesting updated information from each Electing Claimholder
and Deemed Electing Claimholder.
(ii) Advance Approval of Acquisition Provisions.
(1) Acquisition of Claims. Except as provided in paragraph (b)(v)
and the Electing Claimholder provisions in paragraph (b)(iii)
herein, at least twenty (20) business days prior to the proposed
date of any transfer of Claims that would result in (A) an increase
in the dollar amount of Claims beneficially owned by a
Substantial Claimholder or (B) any person or Entity becoming a
Substantial Claimholder (a Proposed Claims Acquisition
Transaction), such person, Entity, or Substantial Claimholder (a
Proposed Claims Transferee) may file with the Court and serve
upon GTAT, GTATs proposed counsel, and the Committees
counsel, a Notice of Request to Purchase, Acquire, or Otherwise
Accumulate a Claim (a Claims Acquisition Request), in the
form annexed to the Orders as Exhibit 5, which describes in
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detail the intended acquisition of Claims, regardless of whether
such transfer would be subject to the filing, notice, and hearing
requirements set forth in Bankruptcy Rule 3001. At the Proposed
Claims Transferees election, the Claims Acquisition Request
that is filed with the Court (but not the Claims Acquisition
Request that is served upon GTAT, GTATs proposed counsel,
and the Committees counsel) may be redacted to exclude the
Proposed Claims Transferees taxpayer identification number and
the aggregate dollar amount of Claims the Proposed Claims
Transferee beneficially owns and proposes to purchase or
otherwise acquire.
(2) Approval Procedures. GTAT may determine, in furtherance of
the purposes of the Procedures and in consultation with counsel
for the Committee, whether or not to approve a Claims
Acquisition Request. If GTAT does not approve a Claims
Acquisition Request in writing within fifteen (15) business days
after the Claims Acquisition Request is filed with the Court, the
Claims Acquisition Request shall be deemed rejected. In the
event a Proposed Claims Transferees request is rejected prior to
the date of a Notice of 382(1)(5) Plan, and the Proposed Claims
Transferee still desires to pursue the Proposed Claims
Acquisition Transaction, the Proposed Claims Transferee is
subject to, and may avail itself of, the Electing Claimholders
provisions in paragraph (b)(iii) below.
(iii) Electing Claimholders.
(1) Any person or Entity generally may trade freely and make a
market in Claims without having to obtain advance approval as
otherwise required under paragraph (b)(ii) herein (the Advance
Approval of Acquisition Provisions) if such person or Entity
makes an election pursuant to, and abides by the provisions of,
this Paragraph (b)(iii). In order to make such election, a person
or Entity shall file with the Court and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, an election
notice, in the form annexed to the Orders as Exhibit 6 (the
Election Notice), within ten (10) business days after the later of
(A) the date of the first purchase or acquisition of, or other
increase in the beneficial ownership (as hereinafter defined) of,
Claims by a Substantial Claimholder following the entry of the
Interim Order or the Final Order, as applicable, and (B) the date
of any purchase or acquisition of, or other increase in the
beneficial ownership of, Claims that causes such person or Entity
to become a Substantial Claimholder. The filing or service of
such Election Notice shall constitute acceptance of the terms and
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conditions set forth in the Election Notice and in this paragraph
(b)(iii) by a person or Entity who files or serves such Election
Notice (an Electing Claimholder). An Electing Claimholder
shall remain subject to the initial notice requirements of
paragraph (b)(i) herein.
(2) To permit reliance by GTAT on Treasury Regulations section
1.382-9(d)(3), any Electing Claimholder shall not participate in
formulating any chapter 11 plan of reorganization of or on behalf
of GTAT (which shall include, without limitation, making any
suggestions or proposals to GTAT or its advisors with regard to
such a plan); provided, however, that the following activities
shall not constitute participation in formulating a plan of
reorganization if; in pursuing such activities, the Electing
Claimholder does not disclose or otherwise make evident (unless
compelled to do so by an order of a court of competent
jurisdiction or some other applicable legal requirement) to
GTAT that such Electing Claimholder has beneficial ownership
of Newly Traded Claims (as hereinafter defined): filing an
objection to a proposed disclosure statement or to confirmation of
a proposed plan of reorganization; voting to accept or reject a
proposed plan of reorganization; reviewing or commenting on a
proposed business plan; providing information on a confidential
basis to the attorneys for GTAT; general membership on an
official committee or an ad hoc committee; or taking any action
required by the order of the Court.
(3) Following the issuance of a Notice of 382(1)(5) Plan, if GTAT
determines it to be reasonably necessary to require the sale or
transfer of all or a portion of the beneficial ownership of Claims
by an Electing Claimholder on the basis that such sale or transfer
is appropriate to reasonably ensure that the requirements of
section 382(1)(5) of the Tax Code will be satisfied, GTAT may
request, after notice to each Electing Claimholder and the
Committee and a hearing, that the Court enter an order approving
the issuance of a notice (the Sell-Down Notice) to the Electing
Claimholder that such Electing Claimholder must sell, cause to
sell, or otherwise transfer all or a portion of its beneficial
ownership of Claims (by class or other applicable breakdown) in
excess of (A) the amount of Claims beneficially owned by such
Electing Claimholder over (B) the Maximum Amount (as
hereinafter defined) for such Electing Claimholder (such excess
amount, an Excess Amount). If the Court approves GTATs
issuance of a Sell-Down Notice, the Debtors may provide the
Sell-Down Notice to the relevant Electing Claimholders.
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Prior to (A) the effective date of the 382(1)(5) Plan or (B) such
earlier date specified by GTAT but no earlier than the day after
the entry of the order confirming the 382(1)(5) Plan (the Sell-
Down Date), each Electing Claimholder shall sell, cause to sell,
or otherwise transfer an amount of the beneficial ownership of
Claims (if any) necessary to comply with the Sell-Down Notice
(the Sell-Down); provided, however, that notwithstanding
anything to the contrary in the Order, no Electing Claimholder
shall be required to sell, cause to sell, or otherwise transfer any
beneficial ownership of Claims if such sale would result in the
Electing Claimholder having beneficial ownership of an
aggregate amount of Claims (by class or other applicable
breakdown) that is less than such Electing Claimholders
Protected Amount (as hereinafter defined). Each Electing
Claimholder shall sell, cause to sell, or otherwise transfer its
beneficial ownership of Claims subject to the Sell-Down to
Permitted Transferees (as hereinafter defined); provided,
however, that such Electing Claimholder shall not have a
reasonable basis to believe that any such Permitted Transferee
would own, immediately after the contemplated transfer, an
Excess Amount of Claims.
An Electing Claimholder subject to the Sell-Down shall,
within five (5) business days after the later of (i) entry of an
order approving the 382(1)(5) Plan, (ii) the Sell-Down Date,
and (iii) such other date specified in the Sell-Down Notice, as
applicable, but before the effective date of the 382(1)(5) Plan,
and as a condition to receiving Affected Securities (as
hereinafter defined), serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a notice substantially
in the form annexed to the Orders as Exhibit 7 that such
Electing Claimholder has complied with the terms and
conditions set forth in this paragraph (b)(iii)(3) and that such
Electing Claimholder does not and will not hold an Excess
Amount of Claims as of the Sell-Down Date and at all times
through the effective date of the 382(1)(5) Plan (the Notice
of Compliance). Any Electing Claimholder who fails to
comply with this provision shall not receive Affected
Securities with respect to any Excess Amount of Claims.
(4) Except to the extent necessary to demonstrate to the Court the
need for the issuance of a Sell-Down Notice, other than
information contained in the Election Notices that is public or in
connection with an audit or other investigation by the IRS or
other taxing authority, GTAT shall keep all Election Notices and
any additional information provided by an Electing Claimholder
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pursuant to paragraph (b)(iii)(3) strictly confidential and shall not
disclose the identity of the Electing Claimholder to any other
person or Entity; provided, however, that GTAT may disclose the
identity of the Electing Claimholder to its counsel and
professional financial advisors and/or the counsel and
professional financial advisors of the Committee and of any
other person(s) that are subject to a nondisclosure agreement with
GTAT, each of whom shall keep all such notices strictly
confidential, subject to further order of the Court; and provided,
further, that to the extent GTAT reasonably determines such
confidential information is necessary to demonstrate to the Court
the need for the issuance of a Sell-Down Notice, such
confidential information (determined by, among other things,
whether such information was redacted in any public filing) shall
be filed under seal.
(5) Any proposed transfer or acquisition of Claims following the
issuance of a Notice of 382(1)(5) Plan shall be subject to the
Advance Approval of Acquisition Provisions set forth in
Paragraph (b)(ii) herein.
(6) Any Electing Claimholder that violates its obligations under an
Election Notice shall, pursuant to the Order, be precluded from
receiving, directly or indirectly, any consideration consisting of a
beneficial ownership of equity (including Options, as defined in
paragraph (a)(v)(3) herein) of GTAT (or any successor to GTAT,
including as determined for U.S. federal income tax purposes)
that is attributable to the Excess Amount of Claims for such
Electing Claimholder, including any consideration in lieu thereof;
provided, however, that such Electing Claimholder may be
entitled to receive any other consideration to which such Electing
Claimholder may be entitled by virtue of holding Claims (the
Equity Forfeiture Provision). Any purported acquisition of, or
other increase in the beneficial ownership of, equity of GTAT (or
any successor) that is precluded by the Equity Forfeiture
Provision will be an acquisition of Forfeited Equity. Any
acquirer of Forfeited Equity shall, immediately upon becoming
aware of such fact, return or cause to return the Forfeited Equity
to GTAT (or any successor to GTAT) or, if all of the equity
consideration properly issued to such acquirer and all or any
portion of such Forfeited Equity shall have been sold prior to the
time such acquirer becomes aware of such fact, such acquirer
shall return or cause to return to GTAT (or any successor to
GTAT) (A) any Forfeited Equity still held by such acquirer and
(B) the proceeds attributable to the sale of Forfeited Equity,
calculated by treating the most recently sold equity as Forfeited
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Equity. Any acquirer that receives Forfeited Equity and
deliberately fails to comply with the preceding sentence shall be
subject to such additional sanctions as the Court may determine.
Any Forfeited Equity returned to GTAT shall be distributed
(including a transfer to charity) or extinguished, in GTATs sole
discretion, in furtherance of the 382(1)(5) Plan.
(7) In effecting any sale or other transfer of Claims pursuant to a
Sell- Down Notice, an Electing Claimholder shall, to the extent
that it is reasonably feasible to do so within the normal
constraints of the market in which such sale takes place, notify
the acquirer of such Claims of the existence of the Order and the
Equity Forfeiture Provision (it being understood that, in all cases
in which there is direct communication between a salesperson
and a customer, including, without limitation, communication
via telephone, e- mail, and instant messaging, the existence of the
Order and the Equity Forfeiture Provision shall be included in
such salespersons summary of the transaction).
(iv) Deemed Electing Claimholders; Sanctions.
(1) Notwithstanding the foregoing, effective as of the Petition Date
and until further order of the Court to the contrary, any person or
Entity that (A) is not a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of
Claims that causes such person or Entity to become a Substantial
Claimholder, or (B) is a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of
Claims, shall either comply with the Advance Approval of
Acquisition Provisions pursuant to paragraph (b)(ii) or, to the
extent permitted in Paragraph (b)(iii) herein, file an Election
Notice and thereby become an Electing Claimholder; provided,
however, that any such person or Entity that neither satisfies the
Advance Approval of Acquisition Provisions nor files a timely
Election Notice shall be deemed to have filed an Election Notice
on the Petition Date and to have become an Electing
Claimholder (a Deemed Electing Claimholder) for all purposes
of the Order (other than the issuance of a direct notice to Electing
Claimholders, whenever required). Deemed Electing
Claimholders shall be subject to all the obligations of Electing
Claimholders, including, without limitation, the requirement that
Electing Claimholders sell, cause to sell, or otherwise transfer all
or a portion of the beneficial ownership of Claims pursuant to a
Sell-Down Notice or be subject to the Equity Forfeiture
Provision. Nothing in this paragraph (b)(iv) shall be read to
relieve a Deemed Electing Claimholder of its obligations to
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notify GTAT of such Deemed Electing Claimholders status as a
Substantial Claimholder. Except as otherwise provided in the
Procedures, all references to an Electing Claimholder in the
Procedures and in the Order shall include a Deemed Electing
Claimholder.
(2) Effective as of the Petition Date, any purchase or acquisition of,
or other increase in the beneficial ownership of, Claims in
violation of the Orders by a Substantial Claimholder shall be
subject to such remedy as the Court may find to be appropriate
upon motion by GTAT, including, without limitation, ordering
such noncompliant Substantial Claimholder to divest itself
promptly of any beneficial ownership of Claims purchased or
otherwise acquired in violation of the Orders and monetary
damages for any costs incurred by GTAT in connection with the
enforcement of the Orders. For the avoidance of doubt, any
sanctions imposed by the Court on a noncompliant Substantial
Claimholder pursuant to this paragraph (b)(iv)(2) shall be in
addition to the consequences of treating such noncompliant
Substantial Claimholder as a Deemed Electing Claimholder for
all purposes of the Orders.
(v) Exception. No person or Entity shall be subject to the Advance
Approval of Acquisition Provisions of paragraph (b)(ii) herein or the
Electing Claimholders provisions of paragraph (b)(iii) herein with
respect to any transfer described in Treasury Regulations section 1.382-
9(d)(5)(ii); provided, however, that such transfer is not for a principal
purpose of obtaining stock in the reorganized GTAT (or any successor)
or permitting the transferee to benefit from the losses of GTAT within
the meaning of Treasury Regulations section 1.382-9(d)(5)(iii); and
provided, further, that any such transferee who becomes a Substantial
Claimholder shall file with the Court, and serve upon GTAT, GTATs
proposed counsel and the Committee counsel, a notice of such status, in
the form annexed to the Orders as Exhibit 4, within ten (10) business
days of the later of (i) the date of the entry of the Interim Order or the
Final Order, as applicable, by the Court and (ii) the date on which such
person or Entity becomes a Substantial Claimholder.
(vi) Definitions. For purposes of this Motion and the Orders, the following
terms have the following meanings:
(1) Applicable Percentage. Applicable Percentage means, if only
one class of Affected Securities is to be issued pursuant to the
terms of the 382(1)(5) Plan and holders within any class of
Claims will receive a pro rata distribution of the Affected
Securities, 4.75% of the number of such shares that the Debtors
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reasonably estimate will be issued at the effective date of such
382(1)(5) Plan, as determined for U.S. federal income tax
purposes. If more than one class of the common stock or any
other equity securities (including securities that are treated as
equity securities for U.S. federal income tax purposes) of the
reorganized Debtors (or any successor), including Options (the
Affected Securities), is to be distributed pursuant to the terms
of the 382(1)(5) Plan or holders within a class of Claims may
receive a disproportionate distribution of such securities relative
to other holders in the same class, the Applicable Percentage
shall be determined by GTAT in its reasonable judgment in a
manner consistent with the estimated range of values for the
equity to be distributed reflected in the valuation analysis set
forth in the 382(1)(5) Plan and disclosure statement, and shall be
expressed in a manner that makes clear the number of shares or
other interests in each class of Affected Securities that would
constitute the Applicable Percentage.
(2) Beneficial Ownership. Beneficial ownership of a Claim
means:
(x) the beneficial ownership of a Claim as determined in
accordance with applicable rules under Section 382, the Treasury
Regulations promulgated thereunder, and rulings issued by the
IRS (for such purpose, treating a Claim as if it is stock), and, to
the extent provided in those rules from time to time, shall include
(A) direct and indirect ownership (e.g., a holding company would
be considered to beneficially own all Claims owned or acquired
by its subsidiaries), and (B) ownership by a holders family
members and any group of persons acting pursuant to a formal or
informal understanding to make a coordinated acquisition of
Claims and/or stock; and
(y) the beneficial ownership of an Option (irrespective of the
purpose for which such Option was issued, created, or acquired).
(3) Claim. A Claim means any unsecured claim under which any
of the Debtors is the obligor, including the 2017 GT Notes and
the 2020 GT Notes. In making this determination, in the case of
a secured claim, that portion of the claim (including such portion
attributable to accrued and unpaid interest) that exceeds the
current fair market value of the security shall be considered an
unsecured Claim. In calculating the amount of any Claims under
the Procedures, any applicable intercreditor agreements,
including subordination agreements, shall be given effect in
accordance with their terms.
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(4) Entity. Entity has the meaning set forth in paragraph (b)(i)(l)
above.
(5) Maximum Amount. Maximum Amount means for each person
or Entity and by class or other applicable breakdown of Claims,
the greater of (A) the applicable Threshold Amount and (B) the
Protected Amount (as hereinafter defined) (if any) for such
Electing Claimholder.
(6) Newly Traded Claims. Newly Traded Claims means Claims (i)
with respect to which a person or Entity acquired beneficial
ownership after the date that was eighteen (18) months before the
Petition Date; and (ii) that are not ordinary course claims,
within the meaning of Treasury Regulations section 1.382-
9(d)(2)(iv), of which the same person or Entity has always had
beneficial ownership.
(7) Option. Option has the meaning given to such term under
Treasury Regulations section 1.382-4(d)(9)(i), with respect to the
acquisition of a Claim or any consideration (including equity)
distributed in respect of any Claim pursuant to a plan of
reorganization or applicable bankruptcy court order.
(8) Permitted Transferee. A Permitted Transferee with respect to
an Electing Claimholder is a person or Entity whose holding of a
Claim would not result in such Electing Claimholder having
beneficial ownership of such Claim.
(9) Protected Amount. Protected Amount means the amount of
Claims (by class or other applicable breakdown) of which a
holder had beneficial ownership on the Petition Date, increased
by the amount of Claims of which such holder acquires, directly
or indirectly, beneficial ownership pursuant to trades entered into
before the Petition Date that had not yet closed as of the Petition
Date minus the amount of Claims of which such holder sells,
directly or indirectly, beneficial ownership pursuant to trades
entered into before the Petition Date that had not yet closed as of
the Petition Date.
(10) Substantial Claimholder. A Substantial Claimholder means
any person or Entity that beneficially owns an aggregate dollar
amount of Claims against the Debtors, or any Entity controlled
by such person or Entity through which such person or Entity
beneficially owns Claims against the Debtors, of more than the
Threshold Amount.
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15
For the avoidance of doubt, Section 382, the Treasury
Regulations promulgated thereunder, and all relevant IRS and
judicial authority shall apply in determining whether the Claims
of several persons and/or Entities must be aggregated when
testing for Substantial Claimholder status, treating Claims as if
they were stock.
(11) Threshold Amount. Threshold Amount means, initially,
$20,615,000, which amount may be subsequently increased or
decreased as GTAT may determine to be appropriate in the
Notice of 382(1)(5) Plan or thereafter in compliance with the
Orders.
(12) 2017 GT Notes. 2017 GT Notes means the 3.00% Convertible
Senior Notes maturing October 1, 2017.
(13) 2020 GT Notes. 2020 GT Notes means the 3.00% Convertible
Senior Notes maturing December 15, 2020.
FAILURE TO FOLLOW THE PROCEDURES SET FORTH IN THIS NOTICE
WILL CONSTITUTE A VIOLATION OF THE AUTOMATIC STAY PRESCRIBED
BY SECTION 362 OF THE BANKRUPTCY CODE.
ANY PROHIBITED ACQUISITION, DISPOSITION OR OTHER TRANSFER
OF GT STOCK IN VIOLATION OF THE ORDER WILL BE NULL AND VOID AB
INITIO AND MAY LEAD TO CONTEMPT, COMPENSATORY DAMAGES,
PUNITIVE DAMAGES, OR SANCTIONS BEING IMPOSED BY THE COURT.
GTAT MAY WAIVE, IN WRITING, ANY AND ALL RESTRICTIONS, STAYS,
AND NOTIFICATION PROCEDURES CONTAINED IN THE ORDER.
PLEASE TAKE FURTHER NOTICE that the requirements set forth in this Notice
are in addition to the requirements of Bankruptcy Rule 3001(e) and applicable securities,
corporate, and other laws, and do not excuse compliance therewith.
PLEASE TAKE FURTHER NOTICE that a final hearing to determine whether the
procedures described herein will be approved on a final basis will be held on _______, 2014 at
__ .m. (E.T.).
Dated: [_____], 2014
Manchester, NH
_______________________________________
Daniel W. Sklar, Esq.
Holly J. Barcroft, Esq.
NIXON PEABODY LLP
900 Elm Street
Manchester, NH 03101-2031
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16
Telephone: (603) 628-4000
Facsimile: (603) 628-4040
- and -
Luc A. Despins, Esq.
Andrew V. Tenzer, Esq.
James T. Grogan, Esq.
PAUL HASTINGS LLP
Park Avenue Tower
75 East 55th Street, First Floor
New York, New York 10022
Telephone: (212) 318-6000
Facsimile: (212) 319-4090
Proposed Co-Counsel for the Debtors and Debtors in
Possession
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Exhibit D
Final Procedures Notice
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW HAMPSHIRE
---------------------------------------------------------------
I nre:
GT ADVANCED TECHNOLOGIES INC., et al.,
Debtors.
1
---------------------------------------------------------------
x
:
:
:
:
:
:
:
x
Chapter 11
Case No. 14-_______ (____)
Joint Administration Requested
NOTICE ESTABLISHING FINAL NOTIFICATION PROCEDURES AND
RESTRICTIONS ON CERTAIN TRANSFERS AND DISPOSITIONS OF CLAIMS
AGAINST AND INTERESTS IN THE DEBTORS ESTATES
TO ALL PERSONS OR ENTITIES WITH EQUITY INTERESTS IN GT ADVANCED
TECHNOLOGIES INC. AND HOLDERS OF SUBSTANTIAL CLAIMS:
2
PLEASE TAKE NOTICE that on ______ (the Petition Date), GT Advanced
Technologies Inc. (GT) and its affiliated debtors as debtors in possession in the above-
captioned cases (collectively, GTAT or the Debtors) commenced a case under chapter 11
of title 1 of the United States Code (the Bankruptcy Code) in the United States Bankruptcy
Court for the District of New Hampshire (the Court). Section 362(a) of the Bankruptcy Code
operates as a stay of any act to obtain possession of property of GTATs estates or to exercise
control over property of GTATs estates.
PLEASE TAKE FURTHER NOTICE that on ______, the Court entered the Order,
Pursuant To Bankruptcy Code Sections 105(a) And 362, Establishing Notification Procedures
And Approving Restrictions On Certain Transfers Of Claims Against And Equity Interests In
The Debtors Nunc Pro Tunc To The Petition Date (the Order) (i) finding that GTATs net
operating loss carryforwards (NOLs) and certain other tax attributes (together with the
1
The Debtors, along with the last four digits of each debtors tax identification number, as applicable, are:
GT Advanced Technologies Inc. (6749), GTAT Corporation (1760), GT Advanced Equipment Holding
LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire
Systems Holding LLC (4417), GT Advanced Cz LLC (9815), GT Sapphire Systems Group LLC (5126),
and GT Advanced Technologies Limited (1721). The Debtors corporate headquarters are located at 243
Daniel Webster Highway, Merrimack, NH 03054.
2
Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to them in the
Debtors Ex Parte Motion For Entry Of Order, Pursuant To Bankruptcy Code Sections 105(a) And 362,
Establishing Notification Procedures And Approving Restrictions On Certain Transfers Of Claims
Against And Equity Interests In The Debtors Nunc Pro Tunc To The Petition Date (the Motion).
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2
NOLs, the Tax Attributes) are property of GTATs estates and are protected by section
362(a) of the Bankruptcy Code; (ii) finding that trading in or disposition common stock of GT
(GT Stock), or options to acquire such stock, and/ or claims against GTAT could severely
limit GTATs ability to use the Tax Attributes for purposes of the Internal Revenue Code of
1986, as amended (the Tax Code) both during the pendency of the bankruptcy cases and
following the effective date of a plan of reorganization, and (iii) approving the procedures set
forth below to preserve the Tax Attributes pursuant to sections 105(a) and 362(a) of the
Bankruptcy Code.
ANY ACQUISITION IN VIOLATION OF THE RESTRICTIONS SET FORTH
BELOW SHALL BE NULL AND VOID AB I NI TI OAS AN ACT IN VIOLATION OF
THE AUTOMATIC STAY UNDER SECTIONS 105(a) AND 362 OF THE
BANKRUPTCY CODE.
PLEASE TAKE FURTHER NOTICE that the following procedures and restrictions
have been approved by the Court and shall apply to (a) holding and trading in GT Stock, and
(b) holding and trading in claims against GTAT:
(a) GT StockOwnership, Acquisition, andDisposition
(i) Notice of Substantial GT Stock Ownership. Any person or entity (as
such latter term is defined in section 1.382-3(a) of the Treasury
Regulations, including persons acting pursuant to a formal or informal
understanding among themselves to make a coordinated acquisition, an
Entity) that beneficially owns, at any time on or after the Petition Date,
GT Stock (as hereinafter defined) in an amount sufficient to qualify such
person or Entity as a Substantial Equityholder (as hereinafter defined)
shall file with the Court, and serve upon GTAT, GTATs proposed
counsel, and the counsel for any statutory committee of unsecured
creditors appointed in these cases (the Committee), a Notice of
Substantial Stock Ownership (a Substantial Ownership Notice), in the
form attached as Exhibit 1 to the Orders, which describes specifically
and in detail the GT Stock ownership of such person or Entity, on or
before the date that is the later of: (a) ten (10) business days after the
entry of the Interim Order or the Final Order, as applicable, and (b) ten
(10) business days after that person or Entity qualifies as a Substantial
Equityholder. At the election of the Substantial Equityholder, the
Substantial Ownership Notice to be filed with the Court (but not such
notice served upon GTAT, GTATs proposed counsel and the
Committees counsel) may be redacted to exclude the Substantial
Equityholders taxpayer identification number and the number of shares
of GT Stock that the Substantial Equityholder beneficially owns.
(ii) Acquisition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer of equity securities (including
Options, as hereinafter defined, to acquire such securities) that would
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3
result in an increase in the amount of GT Stock beneficially owned by
any person or Entity that currently is or subsequently becomes a
Substantial Equityholder or that would result in a person or Entity
becoming a Substantial Equityholder (a Proposed Equity Acquisition
Transaction), such person, Entity or Substantial Equityholder (a
Proposed Equity Transferee) shall file with the Court, and serve upon
GTAT, GTATs proposed counsel, and the Committees counsel, a
Notice of Intent to Purchase, Acquire, or Otherwise Accumulate GT
Stock (an Equity Acquisition Notice), in the form annexed as Exhibit 2
to the Orders, which describes specifically and in detail the proposed
transaction in which GT Stock is to be acquired. At the election of the
Proposed Equity Transferee, the Equity Acquisition Notice that is filed
with the Court (but not such notice served upon GTAT, GTATs
proposed counsel and the Committees counsel) may be redacted to
exclude the Proposed Equity Transferees taxpayer identification number
and the number of shares of GT Stock that the Proposed Equity
Transferee beneficially owns and proposes to purchase or otherwise
acquire.
(iii) Disposition of GT Stock or Options. At least twenty (20) business days
prior to the proposed date of any transfer or other disposition of equity
securities (including Options to acquire such securities) that would result
in a decrease in the amount of GT Stock beneficially owned by a
Substantial Equityholder or that would result in a person or Entity
ceasing to be a Substantial Equityholder (a Proposed Equity Disposition
Transaction, and together with a Proposed Equity Acquisition
Transaction, a Proposed Equity Transaction), such person, Entity, or
Substantial Equityholder (a Proposed Equity Transferor) shall file with
the Court, and serve upon GTAT, GTATs proposed counsel, and the
Committees counsel, a Notice of Intent to Sell, Trade, or Otherwise
Transfer GT Stock (an Equity Disposition Notice, and together with an
Equity Acquisition Notice, an Equity Trading Notice), in the form
annexed as Exhibit 3 to the Orders, which describes specifically and in
detail the proposed transaction in which GT Stock would be transferred.
At the election of the Proposed Equity Transferor, the Equity Disposition
Notice that is filed with the Court (but not such notice served upon
GTAT, GTATs proposed counsel and the Committees counsel) may be
redacted to exclude the Proposed Equity Transferors taxpayer
identification number and the number of shares of GT Stock that the
Proposed Equity Transferor beneficially owns and proposes to sell or
otherwise transfer.
(iv) Objection Procedures. GTAT and the Committee shall have fifteen (15)
business days after the filing of an Equity Trading Notice (the Equity
Objection Deadline) to file with the Court and serve on a Proposed
Equity Transferee or a Proposed Equity Transferor, as the case may be,
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4
an objection to any proposed transfer of equity securities (including
Options to acquire such securities) described in such Equity Trading
Notice on the grounds that such transfer may adversely affect GTATs
ability to utilize the Tax Attributes (an Equity Objection) as a result of
an ownership change under Section 382.
(1) If GTAT or the Committee files an Equity Objection by the
Equity Objection Deadline, then the Proposed Equity Transaction
shall not be effective unless approved by a final and
nonappealable order of this Court.
(2) If GTAT or the Committee do not file an Equity Objection by the
Equity Objection Deadline, or if GTAT and the Committee
provide written authorization to the Proposed Equity Transferee
or the Proposed Equity Transferor, as the case may be, approving
the Proposed Equity Transaction, prior to the Equity Objection
Deadline, then such Proposed Equity Transaction may proceed
solely as specifically described in the Equity Trading Notice.
(v) Additional Acquisitions. Any additional transaction within the scope of
paragraphs (a)(ii) or (a)(iii) above must be the subject of an additional
notice as set forth herein with the applicable waiting period.
(vi) Definitions. For purposes of this Motion and the Proposed Order, the
following terms have the following meanings:
(1) Substantial Equityholder. A Substantial Equityholder is any
person or Entity that beneficially owns, or any Entity controlled
by such person or Entity through which such person or Entity
beneficially owns, at least 4.75% of all issued and outstanding
shares of GT Stock.
(2) Beneficial Ownership. Beneficial ownership (or any variation
thereof of GT Stock and Options to acquire GT Stock) shall be
determined in accordance with applicable rules under Section
382, the Treasury Regulations promulgated thereunder and
rulings issued by the Internal Revenue Service, and, thus, to the
extent provided in those rules, from time to time shall include,
without limitation, (A) direct and indirect ownership (e.g., a
holding company would be considered to beneficially own all
stock owned or acquired by its subsidiaries), (B) ownership by a
holders family members and any group of persons acting
pursuant to a formal or informal understanding to make a
coordinated acquisition of stock, and (C) to the extent provided in
Treasury Regulations section 1.382-4, the ownership of an
Option to acquire GT Stock.
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5
(3) Option. An Option to acquire stock includes 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 or otherwise not currently exercisable.
(4) GT Stock. GT Stock shall mean all common stock of GT. For
the avoidance of doubt, by operation of the definition of
beneficial ownership, an owner of an Option to acquire GT Stock
may be treated as the owner of such GT Stock.
(b) TradinginClaimsof GTAT
(i) Notice of Substantial Claimholder Status; Notice of 382(l)(5) Plan.
(1) Any person or Entity (as such term is defined in Treasury
Regulations section 1.382-3(a), including persons acting pursuant
to a formal or informal understanding among themselves to make
a coordinated acquisition) that currently is or becomes a
Substantial Claimholder (as hereinafter defined) shall file with
the Court and serve upon GTAT, GTATs proposed counsel, and
the Committees counsel, a notice of such status (a Notice of
Substantial Claimholder Status), in the form annexed to the
Orders as Exhibit 4 within ten (10) business days of the later of
(A) the entry of the Interim Order or the Final Order, as
applicable and (B) the date on which such person or Entity
becomes a Substantial Claimholder. At the election of the
Substantial Claimholder, the Notice of Substantial Claimholder
Status that is filed with the Court (but not the Notice of
Substantial Claimholder Status that is served upon GTAT,
GTATs proposed counsel, and the Committees counsel) may be
redacted to exclude the Substantial Claimholders taxpayer
identification number and the aggregate dollar amount of Claims
(as hereinafter defined) that the Substantial Claimholder
beneficially owns.
(2) Upon filing a plan and disclosure statement that contemplates the
potential utilization of section 382(1)(5) of the Tax Code (the
382(1)(5) Plan), GTAT shall (A) publish (or arrange for
publication of) a notice and provide a written notice to the Notice
Parties and Electing Claimholders (each as hereinafter defined),
disclosing the filing of such 382(1)(5) Plan and the potential
issuance of a Sell-Down Notice (as hereinafter defined) in
connection therewith on the website to be established by the
Debtors claims and noticing agent (the Claims and Noticing
Agent) and in the national edition of The Wall Street Journal (a
Notice of 382(1)(5) Plan), (B) identify the Threshold Amount
(as hereinafter defined) of Claims for status as a Substantial
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6
Claimholder and (C) request from each Electing Claimholder
(including a Deemed Electing Claimholder (as hereinafter
defined)) updated information regarding the aggregate amount of
Claims beneficially owned by such Electing Claimholder, which
updated information shall be delivered by such Electing
Claimholder to the Debtors within ten (10) business days of
receipt of the request therefor or, in the case of a Deemed
Electing Claimholder, ten (10) business days of the date of the
Notice of 382(1)(5) Plan.
For the avoidance of doubt, GTAT shall have no obligation under
the Orders to provide notice to any Deemed Electing Claimholder
of the matters set forth in this Paragraph (b)(i)(2), and the lack of
such notice shall not limit the obligation of a Deemed Electing
Claimholder to comply with the requirements of a Sell-Down
Notice (as hereinafter defined) or affect the application of the
Equity Forfeiture Provision (as hereinafter defined) with respect
to such Deemed Electing Claimholder.
(3) GTAT shall disclose the Threshold Amount in the Notice of
382(1)(5) Plan as of the date of the Notice of 382(1)(5) Plan
based on then available information, including any change in the
Threshold Amount. GTAT may adjust the Threshold Amount
based on the updated information from Electing Claimholders
pursuant to paragraph (b)(i)(2) herein. If the Threshold Amount is
adjusted, GTAT shall provide a notice of such adjusted amount in
the same manner as the Notice of 382(1)(5) Plan and such notice
shall be treated as an amended Notice of 382(1)(5) Plan, thereby
requesting updated information from each Electing Claimholder
and Deemed Electing Claimholder.
(ii) Advance Approval of Acquisition Provisions.
(1) Acquisition of Claims. Except as provided in paragraph (b)(v)
and the Electing Claimholder provisions in paragraph (b)(iii)
herein, at least twenty (20) business days prior to the proposed
date of any transfer of Claims that would result in (A) an increase
in the dollar amount of Claims beneficially owned by a
Substantial Claimholder or (B) any person or Entity becoming a
Substantial Claimholder (a Proposed Claims Acquisition
Transaction), such person, Entity, or Substantial Claimholder (a
Proposed Claims Transferee) may file with the Court and serve
upon GTAT, GTATs proposed counsel, and the Committees
counsel, a Notice of Request to Purchase, Acquire, or Otherwise
Accumulate a Claim (a Claims Acquisition Request), in the
form annexed to the Orders as Exhibit 5, which describes in
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7
detail the intended acquisition of Claims, regardless of whether
such transfer would be subject to the filing, notice, and hearing
requirements set forth in Bankruptcy Rule 3001. At the Proposed
Claims Transferees election, the Claims Acquisition Request
that is filed with the Court (but not the Claims Acquisition
Request that is served upon GTAT, GTATs proposed counsel,
and the Committees counsel) may be redacted to exclude the
Proposed Claims Transferees taxpayer identification number and
the aggregate dollar amount of Claims the Proposed Claims
Transferee beneficially owns and proposes to purchase or
otherwise acquire.
(2) Approval Procedures. GTAT may determine, in furtherance of
the purposes of the Procedures and in consultation with counsel
for the Committee, whether or not to approve a Claims
Acquisition Request. If GTAT does not approve a Claims
Acquisition Request in writing within fifteen (15) business days
after the Claims Acquisition Request is filed with the Court, the
Claims Acquisition Request shall be deemed rejected. In the
event a Proposed Claims Transferees request is rejected prior to
the date of a Notice of 382(1)(5) Plan, and the Proposed Claims
Transferee still desires to pursue the Proposed Claims
Acquisition Transaction, the Proposed Claims Transferee is
subject to, and may avail itself of, the Electing Claimholders
provisions in paragraph (b)(iii) below.
(iii) Electing Claimholders.
(1) Any person or Entity generally may trade freely and make a
market in Claims without having to obtain advance approval as
otherwise required under paragraph (b)(ii) herein (the Advance
Approval of Acquisition Provisions) if such person or Entity
makes an election pursuant to, and abides by the provisions of,
this Paragraph (b)(iii). In order to make such election, a person
or Entity shall file with the Court and serve upon GTAT, GTATs
proposed counsel, and the Committees counsel, an election
notice, in the form annexed to the Orders as Exhibit 6 (the
Election Notice), within ten (10) business days after the later of
(A) the date of the first purchase or acquisition of, or other
increase in the beneficial ownership (as hereinafter defined) of,
Claims by a Substantial Claimholder following the entry of the
Interim Order or the Final Order, as applicable, and (B) the date
of any purchase or acquisition of, or other increase in the
beneficial ownership of, Claims that causes such person or Entity
to become a Substantial Claimholder. The filing or service of
such Election Notice shall constitute acceptance of the terms and
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8
conditions set forth in the Election Notice and in this paragraph
(b)(iii) by a person or Entity who files or serves such Election
Notice (an Electing Claimholder). An Electing Claimholder
shall remain subject to the initial notice requirements of
paragraph (b)(i) herein.
(2) To permit reliance by GTAT on Treasury Regulations section
1.382-9(d)(3), any Electing Claimholder shall not participate in
formulating any chapter 11 plan of reorganization of or on behalf
of GTAT (which shall include, without limitation, making any
suggestions or proposals to GTAT or its advisors with regard to
such a plan); provided, however, that the following activities
shall not constitute participation in formulating a plan of
reorganization if; in pursuing such activities, the Electing
Claimholder does not disclose or otherwise make evident (unless
compelled to do so by an order of a court of competent
jurisdiction or some other applicable legal requirement) to
GTAT that such Electing Claimholder has beneficial ownership
of Newly Traded Claims (as hereinafter defined): filing an
objection to a proposed disclosure statement or to confirmation of
a proposed plan of reorganization; voting to accept or reject a
proposed plan of reorganization; reviewing or commenting on a
proposed business plan; providing information on a confidential
basis to the attorneys for GTAT; general membership on an
official committee or an ad hoc committee; or taking any action
required by the order of the Court.
(3) Following the issuance of a Notice of 382(1)(5) Plan, if GTAT
determines it to be reasonably necessary to require the sale or
transfer of all or a portion of the beneficial ownership of Claims
by an Electing Claimholder on the basis that such sale or transfer
is appropriate to reasonably ensure that the requirements of
section 382(1)(5) of the Tax Code will be satisfied, GTAT may
request, after notice to each Electing Claimholder and the
Committee and a hearing, that the Court enter an order approving
the issuance of a notice (the Sell-Down Notice) to the Electing
Claimholder that such Electing Claimholder must sell, cause to
sell, or otherwise transfer all or a portion of its beneficial
ownership of Claims (by class or other applicable breakdown) in
excess of (A) the amount of Claims beneficially owned by such
Electing Claimholder over (B) the Maximum Amount (as
hereinafter defined) for such Electing Claimholder (such excess
amount, an Excess Amount). If the Court approves GTATs
issuance of a Sell-Down Notice, the Debtors may provide the
Sell-Down Notice to the relevant Electing Claimholders.
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9
Prior to (A) the effective date of the 382(1)(5) Plan or (B) such
earlier date specified by GTAT but no earlier than the day after
the entry of the order confirming the 382(1)(5) Plan (the Sell-
Down Date), each Electing Claimholder shall sell, cause to sell,
or otherwise transfer an amount of the beneficial ownership of
Claims (if any) necessary to comply with the Sell-Down Notice
(the Sell-Down); provided, however, that notwithstanding
anything to the contrary in the Order, no Electing Claimholder
shall be required to sell, cause to sell, or otherwise transfer any
beneficial ownership of Claims if such sale would result in the
Electing Claimholder having beneficial ownership of an
aggregate amount of Claims (by class or other applicable
breakdown) that is less than such Electing Claimholders
Protected Amount (as hereinafter defined). Each Electing
Claimholder shall sell, cause to sell, or otherwise transfer its
beneficial ownership of Claims subject to the Sell-Down to
Permitted Transferees (as hereinafter defined); provided,
however, that such Electing Claimholder shall not have a
reasonable basis to believe that any such Permitted Transferee
would own, immediately after the contemplated transfer, an
Excess Amount of Claims.
An Electing Claimholder subject to the Sell-Down shall,
within five (5) business days after the later of (i) entry of an
order approving the 382(1)(5) Plan, (ii) the Sell-Down Date,
and (iii) such other date specified in the Sell-Down Notice, as
applicable, but before the effective date of the 382(1)(5) Plan,
and as a condition to receiving Affected Securities (as
hereinafter defined), serve upon GTAT, GTATs proposed
counsel, and the Committees counsel, a notice substantially
in the form annexed to the Orders as Exhibit 7 that such
Electing Claimholder has complied with the terms and
conditions set forth in this paragraph (b)(iii)(3) and that such
Electing Claimholder does not and will not hold an Excess
Amount of Claims as of the Sell-Down Date and at all times
through the effective date of the 382(1)(5) Plan (the Notice
of Compliance). Any Electing Claimholder who fails to
comply with this provision shall not receive Affected
Securities with respect to any Excess Amount of Claims.
(4) Except to the extent necessary to demonstrate to the Court the
need for the issuance of a Sell-Down Notice, other than
information contained in the Election Notices that is public or in
connection with an audit or other investigation by the IRS or
other taxing authority, GTAT shall keep all Election Notices and
any additional information provided by an Electing Claimholder
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10
pursuant to paragraph (b)(iii)(3) strictly confidential and shall not
disclose the identity of the Electing Claimholder to any other
person or Entity; provided, however, that GTAT may disclose the
identity of the Electing Claimholder to its counsel and
professional financial advisors and/or the counsel and
professional financial advisors of the Committee and of any
other person(s) that are subject to a nondisclosure agreement with
GTAT, each of whom shall keep all such notices strictly
confidential, subject to further order of the Court; and provided,
further, that to the extent GTAT reasonably determines such
confidential information is necessary to demonstrate to the Court
the need for the issuance of a Sell-Down Notice, such
confidential information (determined by, among other things,
whether such information was redacted in any public filing) shall
be filed under seal.
(5) Any proposed transfer or acquisition of Claims following the
issuance of a Notice of 382(1)(5) Plan shall be subject to the
Advance Approval of Acquisition Provisions set forth in
Paragraph (b)(ii) herein.
(6) Any Electing Claimholder that violates its obligations under an
Election Notice shall, pursuant to the Order, be precluded from
receiving, directly or indirectly, any consideration consisting of a
beneficial ownership of equity (including Options, as defined in
paragraph (a)(v)(3) herein) of GTAT (or any successor to GTAT,
including as determined for U.S. federal income tax purposes)
that is attributable to the Excess Amount of Claims for such
Electing Claimholder, including any consideration in lieu thereof;
provided, however, that such Electing Claimholder may be
entitled to receive any other consideration to which such Electing
Claimholder may be entitled by virtue of holding Claims (the
Equity Forfeiture Provision). Any purported acquisition of, or
other increase in the beneficial ownership of, equity of GTAT (or
any successor) that is precluded by the Equity Forfeiture
Provision will be an acquisition of Forfeited Equity. Any
acquirer of Forfeited Equity shall, immediately upon becoming
aware of such fact, return or cause to return the Forfeited Equity
to GTAT (or any successor to GTAT) or, if all of the equity
consideration properly issued to such acquirer and all or any
portion of such Forfeited Equity shall have been sold prior to the
time such acquirer becomes aware of such fact, such acquirer
shall return or cause to return to GTAT (or any successor to
GTAT) (A) any Forfeited Equity still held by such acquirer and
(B) the proceeds attributable to the sale of Forfeited Equity,
calculated by treating the most recently sold equity as Forfeited
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11
Equity. Any acquirer that receives Forfeited Equity and
deliberately fails to comply with the preceding sentence shall be
subject to such additional sanctions as the Court may determine.
Any Forfeited Equity returned to GTAT shall be distributed
(including a transfer to charity) or extinguished, in GTATs sole
discretion, in furtherance of the 382(1)(5) Plan.
(7) In effecting any sale or other transfer of Claims pursuant to a
Sell- Down Notice, an Electing Claimholder shall, to the extent
that it is reasonably feasible to do so within the normal
constraints of the market in which such sale takes place, notify
the acquirer of such Claims of the existence of the Order and the
Equity Forfeiture Provision (it being understood that, in all cases
in which there is direct communication between a salesperson
and a customer, including, without limitation, communication
via telephone, e- mail, and instant messaging, the existence of the
Order and the Equity Forfeiture Provision shall be included in
such salespersons summary of the transaction).
(iv) Deemed Electing Claimholders; Sanctions.
(1) Notwithstanding the foregoing, effective as of the Petition Date
and until further order of the Court to the contrary, any person or
Entity that (A) is not a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of
Claims that causes such person or Entity to become a Substantial
Claimholder, or (B) is a Substantial Claimholder and purchases,
acquires, or otherwise increases the beneficial ownership of
Claims, shall either comply with the Advance Approval of
Acquisition Provisions pursuant to paragraph (b)(ii) or, to the
extent permitted in Paragraph (b)(iii) herein, file an Election
Notice and thereby become an Electing Claimholder; provided,
however, that any such person or Entity that neither satisfies the
Advance Approval of Acquisition Provisions nor files a timely
Election Notice shall be deemed to have filed an Election Notice
on the Petition Date and to have become an Electing
Claimholder (a Deemed Electing Claimholder) for all purposes
of the Order (other than the issuance of a direct notice to Electing
Claimholders, whenever required). Deemed Electing
Claimholders shall be subject to all the obligations of Electing
Claimholders, including, without limitation, the requirement that
Electing Claimholders sell, cause to sell, or otherwise transfer all
or a portion of the beneficial ownership of Claims pursuant to a
Sell-Down Notice or be subject to the Equity Forfeiture
Provision. Nothing in this paragraph (b)(iv) shall be read to
relieve a Deemed Electing Claimholder of its obligations to
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notify GTAT of such Deemed Electing Claimholders status as a
Substantial Claimholder. Except as otherwise provided in the
Procedures, all references to an Electing Claimholder in the
Procedures and in the Order shall include a Deemed Electing
Claimholder.
(2) Effective as of the Petition Date, any purchase or acquisition of,
or other increase in the beneficial ownership of, Claims in
violation of the Orders by a Substantial Claimholder shall be
subject to such remedy as the Court may find to be appropriate
upon motion by GTAT, including, without limitation, ordering
such noncompliant Substantial Claimholder to divest itself
promptly of any beneficial ownership of Claims purchased or
otherwise acquired in violation of the Orders and monetary
damages for any costs incurred by GTAT in connection with the
enforcement of the Orders. For the avoidance of doubt, any
sanctions imposed by the Court on a noncompliant Substantial
Claimholder pursuant to this paragraph (b)(iv)(2) shall be in
addition to the consequences of treating such noncompliant
Substantial Claimholder as a Deemed Electing Claimholder for
all purposes of the Orders.
(v) Exception. No person or Entity shall be subject to the Advance
Approval of Acquisition Provisions of paragraph (b)(ii) herein or the
Electing Claimholders provisions of paragraph (b)(iii) herein with
respect to any transfer described in Treasury Regulations section 1.382-
9(d)(5)(ii); provided, however, that such transfer is not for a principal
purpose of obtaining stock in the reorganized GTAT (or any successor)
or permitting the transferee to benefit from the losses of GTAT within
the meaning of Treasury Regulations section 1.382-9(d)(5)(iii); and
provided, further, that any such transferee who becomes a Substantial
Claimholder shall file with the Court, and serve upon GTAT, GTATs
proposed counsel and the Committee counsel, a notice of such status, in
the form annexed to the Orders as Exhibit 4, within ten (10) business
days of the later of (i) the date of the entry of the Interim Order or the
Final Order, as applicable, by the Court and (ii) the date on which such
person or Entity becomes a Substantial Claimholder.
(vi) Definitions. For purposes of this Motion and the Orders, the following
terms have the following meanings:
(1) Applicable Percentage. Applicable Percentage means, if only
one class of Affected Securities is to be issued pursuant to the
terms of the 382(1)(5) Plan and holders within any class of
Claims will receive a pro rata distribution of the Affected
Securities, 4.75% of the number of such shares that the Debtors
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reasonably estimate will be issued at the effective date of such
382(1)(5) Plan, as determined for U.S. federal income tax
purposes. If more than one class of the common stock or any
other equity securities (including securities that are treated as
equity securities for U.S. federal income tax purposes) of the
reorganized Debtors (or any successor), including Options (the
Affected Securities), is to be distributed pursuant to the terms
of the 382(1)(5) Plan or holders within a class of Claims may
receive a disproportionate distribution of such securities relative
to other holders in the same class, the Applicable Percentage
shall be determined by GTAT in its reasonable judgment in a
manner consistent with the estimated range of values for the
equity to be distributed reflected in the valuation analysis set
forth in the 382(1)(5) Plan and disclosure statement, and shall be
expressed in a manner that makes clear the number of shares or
other interests in each class of Affected Securities that would
constitute the Applicable Percentage.
(2) Beneficial Ownership. Beneficial ownership of a Claim
means:
(x) the beneficial ownership of a Claim as determined in
accordance with applicable rules under Section 382, the Treasury
Regulations promulgated thereunder, and rulings issued by the
IRS (for such purpose, treating a Claim as if it is stock), and, to
the extent provided in those rules from time to time, shall include
(A) direct and indirect ownership (e.g., a holding company would
be considered to beneficially own all Claims owned or acquired
by its subsidiaries), and (B) ownership by a holders family
members and any group of persons acting pursuant to a formal or
informal understanding to make a coordinated acquisition of
Claims and/or stock; and
(y) the beneficial ownership of an Option (irrespective of the
purpose for which such Option was issued, created, or acquired).
(3) Claim. A Claim means any unsecured claim under which any
of the Debtors is the obligor, including the 2017 GT Notes and
the 2020 GT Notes. In making this determination, in the case of
a secured claim, that portion of the claim (including such portion
attributable to accrued and unpaid interest) that exceeds the
current fair market value of the security shall be considered an
unsecured Claim. In calculating the amount of any Claims under
the Procedures, any applicable intercreditor agreements,
including subordination agreements, shall be given effect in
accordance with their terms.
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(4) Entity. Entity has the meaning set forth in paragraph (b)(i)(l)
above.
(5) Maximum Amount. Maximum Amount means for each person
or Entity and by class or other applicable breakdown of Claims,
the greater of (A) the applicable Threshold Amount and (B) the
Protected Amount (as hereinafter defined) (if any) for such
Electing Claimholder.
(6) Newly Traded Claims. Newly Traded Claims means Claims (i)
with respect to which a person or Entity acquired beneficial
ownership after the date that was eighteen (18) months before the
Petition Date; and (ii) that are not ordinary course claims,
within the meaning of Treasury Regulations section 1.382-
9(d)(2)(iv), of which the same person or Entity has always had
beneficial ownership.
(7) Option. Option has the meaning given to such term under
Treasury Regulations section 1.382-4(d)(9)(i), with respect to the
acquisition of a Claim or any consideration (including equity)
distributed in respect of any Claim pursuant to a plan of
reorganization or applicable bankruptcy court order.
(8) Permitted Transferee. A Permitted Transferee with respect to
an Electing Claimholder is a person or Entity whose holding of a
Claim would not result in such Electing Claimholder having
beneficial ownership of such Claim.
(9) Protected Amount. Protected Amount means the amount of
Claims (by class or other applicable breakdown) of which a
holder had beneficial ownership on the Petition Date, increased
by the amount of Claims of which such holder acquires, directly
or indirectly, beneficial ownership pursuant to trades entered into
before the Petition Date that had not yet closed as of the Petition
Date minus the amount of Claims of which such holder sells,
directly or indirectly, beneficial ownership pursuant to trades
entered into before the Petition Date that had not yet closed as of
the Petition Date.
(10) Substantial Claimholder. A Substantial Claimholder means
any person or Entity that beneficially owns an aggregate dollar
amount of Claims against the Debtors, or any Entity controlled
by such person or Entity through which such person or Entity
beneficially owns Claims against the Debtors, of more than the
Threshold Amount.
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For the avoidance of doubt, Section 382, the Treasury
Regulations promulgated thereunder, and all relevant IRS and
judicial authority shall apply in determining whether the Claims
of several persons and/or Entities must be aggregated when
testing for Substantial Claimholder status, treating Claims as if
they were stock.
(11) Threshold Amount. Threshold Amount means, initially,
$20,615,000, which amount may be subsequently increased or
decreased as GTAT may determine to be appropriate in the
Notice of 382(1)(5) Plan or thereafter in compliance with the
Orders.
(12) 2017 GT Notes. 2017 GT Notes means the 3.00% Convertible
Senior Notes maturing October 1, 2017.
(13) 2020 GT Notes. 2020 GT Notes means the 3.00% Convertible
Senior Notes maturing December 15, 2020.
FAILURE TO FOLLOW THE PROCEDURES SET FORTH IN THIS NOTICE
WILL CONSTITUTE A VIOLATION OF THE AUTOMATIC STAY PRESCRIBED
BY SECTION 362 OF THE BANKRUPTCY CODE.
ANY PROHIBITED ACQUISITION, DISPOSITION OR OTHER TRANSFER
OF GT STOCK IN VIOLATION OF THE ORDER WILL BE NULL AND VOID AB
INITIO AND MAY LEAD TO CONTEMPT, COMPENSATORY DAMAGES,
PUNITIVE DAMAGES, OR SANCTIONS BEING IMPOSED BY THE COURT.
GTAT MAY WAIVE, IN WRITING, ANY AND ALL RESTRICTIONS, STAYS,
AND NOTIFICATION PROCEDURES CONTAINED IN THE ORDER.
PLEASE TAKE FURTHER NOTICE that the requirements set forth in this Notice
are in addition to the requirements of Bankruptcy Rule 3001(e) and applicable securities,
corporate, and other laws, and do not excuse compliance therewith.
Dated: [_____], 2014
Manchester, NH
_______________________________________
Daniel W. Sklar, Esq.
Holly J. Barcroft, Esq.
NIXON PEABODY LLP
900 Elm Street
Manchester, NH 03101-2031
Telephone: (603) 628-4000
Facsimile: (603) 628-4040
- and -
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Luc A. Despins, Esq.
Andrew V. Tenzer, Esq.
James T. Grogan, Esq.
PAUL HASTINGS LLP
Park Avenue Tower
75 East 55th Street, First Floor
New York, New York 10022
Telephone: (212) 318-6000
Facsimile: (212) 319-4090
Proposed Co-Counsel for the Debtors and Debtors in
Possession
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