--------------------------------------------------------------- I nre: GT ADVANCED TECHNOLOGIES INC., et al., Debtors. 1 --------------------------------------------------------------- x : : : : : : : x 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: 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 1 of 131 2 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 2 of 131 3 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 3 of 131 4 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. 2 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 4 of 131 5 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. 3 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). 4 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). 4 26 U.S.C. 382(1)(5)(A). Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 5 of 131 6 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. 5 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. 5 See Treasury Regulations 1.382-9(d)(1). Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 6 of 131 7 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 7 of 131 8 (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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 8 of 131 9 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 9 of 131 10 (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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 10 of 131 11 (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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 11 of 131 12 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 12 of 131 13 (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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 13 of 131 14 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 14 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 15 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 16 of 131 17 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 17 of 131 18 (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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 18 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 19 of 131 20 (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). Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 20 of 131 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). Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 21 of 131 22 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) Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 22 of 131 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...) Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 23 of 131 24 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 24 of 131 25 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 25 of 131 26 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 26 of 131 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). Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 27 of 131 28 (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, Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 28 of 131 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] Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 29 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 30 of 131 EXHIBIT A PROPOSED INTERIM ORDER Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 31 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 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 32 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 33 of 131 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), Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 34 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 35 of 131 5 (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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 36 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 37 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 38 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 39 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 40 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 41 of 131 11 (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). Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 42 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 43 of 131 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 Filed: 10/06/14 Desc: Main Document Page 44 of 131 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 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 45 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 46 of 131 16 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 47 of 131 17 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 48 of 131 18 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 49 of 131 EXHIBIT B PROPOSED FINAL ORDER Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 50 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 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 51 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 52 of 131 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), Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 53 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 54 of 131 5 (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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 55 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 56 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 57 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 58 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 59 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 60 of 131 11 (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). Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 61 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 62 of 131 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 Filed: 10/06/14 Desc: Main Document Page 63 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 64 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 65 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 66 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 67 of 131 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 Filed: 10/06/14 Desc: Main Document Page 68 of 131 Exhibit 1 Substantial Stock Ownership Notice Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 69 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 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 70 of 131 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:_____________________________ Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 94 of 131 4 Exhibit 7 Notice of Compliance Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 95 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 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:_____________________________ Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 97 of 131 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, Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 101 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 103 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 104 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 105 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 106 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 107 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 109 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 110 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 111 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 112 of 131 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, Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 118 of 131 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 119 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 120 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 121 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 122 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 123 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 124 of 131 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 125 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 126 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 127 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 128 of 131 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. Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 129 of 131 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 - Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 130 of 131 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 Case: 14-11916 Doc #: 15 Filed: 10/06/14 Desc: Main Document Page 131 of 131 EXHIBIT A PROPOSED INTERIM ORDER Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final 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), Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 5 of 101 5 (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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 6 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 7 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 8 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 9 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 10 of 101 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 11 of 101 11 (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). Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 12 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 13 of 101 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 14 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 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 15 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 16 of 101 16 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 17 of 101 17 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 18 of 101 18 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 19 of 101 EXHIBIT B PROPOSED FINAL ORDER Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 20 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. ___ 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 21 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 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 22 of 101 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), Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 23 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 24 of 101 5 (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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 25 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 26 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 27 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 28 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 29 of 101 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 30 of 101 11 (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). Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 32 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final 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 --------------------------------------------------------------- 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final 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 --------------------------------------------------------------- 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 #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final 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 --------------------------------------------------------------- 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 -------------------------------------------------------------- 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 #: 15-1 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 --------------------------------------------------------------- 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 #: 15-1 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 --------------------------------------------------------------- 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 #: 15-1 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 --------------------------------------------------------------- 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 70 of 101 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, Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 71 of 101 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 #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 72 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 73 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 74 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 75 of 101 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 76 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 77 of 101 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 #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 78 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 79 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 80 of 101 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 81 of 101 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 82 of 101 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 #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 83 of 101 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 #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 84 of 101 Exhibit D Final Procedures Notice Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 85 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-_______ (____) 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 #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 86 of 101 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 #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 87 of 101 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, Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 88 of 101 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 #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 89 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 90 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 91 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 92 of 101 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 93 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 94 of 101 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 #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 95 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 96 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 97 of 101 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 98 of 101 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. Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 99 of 101 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 - Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 100 of 101 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 Case: 14-11916 Doc #: 15-1 Filed: 10/06/14 Desc: Proposed Order Interim and Final Order Page 101 of 101