Exhibit 99.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered Related to D.I. 16 and 64 |
FINAL ORDER ESTABLISHING NOTICE, HEARING, AND
SELL-DOWN PROCEDURES FOR TRADING IN EQUITY SECURITIES
AND CLAIMS AGAINST THE DEBTORS’ ESTATES
Upon the emergency motion, dated March 1, 2009 (the “Motion”)2 of the above-captioned debtors and debtors-in-possession (each a “Debtor” and, collectively, the “Debtors”) in these chapter 11 cases (the “Chapter 11 Cases”), for entry of an order (i) establishing notice and hearing procedures that must be satisfied before certain transfers of equity securities in Spansion Inc. (“Spansion”) or of any beneficial interest therein are deemed effective, (ii) establishing notice and sell-down procedures for trading in Claims against the Debtors’ estates, and (iii) allowing for a hearing with respect to the prospective application of such procedures if any official committee of unsecured creditors appointed in these cases (the “Creditors’ Committee”) raises a timely objection; and the interim hearing on the Motion having been held before this Court on March 4, 2009 (the “Interim Hearing”); and this Court thereafter having entered an interim order (the “Interim Order”); and the final hearing on the Motion having been
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
2 | Capitalized terms used but not defined herein shall have the same meanings ascribed to them in the Motion. |
held before this Court on March 23, 2009 (the “Final Hearing”); and it appearing that the relief requested is in the best interests of the Debtors’ estates, their creditors, and other parties-in-interest; and upon consideration of the Affidavit of Dario Sacomani, Executive Vice President and Chief Financial Officer of Spansion Inc., in Support of First Day Motions (D.I. 20); and it appearing that this Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334; and it appearing that this Motion is a core proceeding pursuant to 28 U.S.C. § 157; and adequate notice of the Motion and opportunity for objection having been given; and it appearing that no other notice need be given; and this Court having considered the Motion, all pleadings related thereto, and the record made by the Debtors at the Interim Hearing and the Final Hearing; and after due deliberation and sufficient cause therefore:
THE COURT HEREBY FINDS AND CONCLUDES AS FOLLOWS:
A. On March 1, 2009 (the “Petition Date”), each of the Debtors filed with this Court a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. The Debtors are operating their businesses and managing their properties as debtors-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. The Creditors’ Committee was appointed in these Chapter 11 Cases on or about March 12, 2009.
B. This Court has jurisdiction over the Chapter 11 Cases and the Motion pursuant to 28 U.S.C. §§ 157(b) and 1334. Consideration of the Motion constitutes a core proceeding pursuant to 28 U.S.C. § 157(b)(2). The statutory predicates for the relief sought herein are sections 105(a), 363(b), 507(a)(4) and 507(a)(5) of the Bankruptcy Code. Venue of the Chapter 11 Cases in this District is proper pursuant to 28 U.S.C. §§ 1408 and 1409.
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C. On March 1, 2009, the Debtors filed the Motion with this Court and pursuant to Bankruptcy Rule 2002 and the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware, the Debtors provided notice of the Motion and the Interim Hearing by facsimile, overnight delivery or first-class mail to the following parties and/or to their counsel as indicated below: (a) the United States Trustee; (b) counsel to the administrative agent for the Debtors’ prepetition lenders; (c) counsel to thead-hoc committee of holders of Spansion LLC’s Senior Secured Floating Rate Notes due 2013 (the “Ad Hoc Consortium”), Robert J. Stark, Brown Rudnick LLP, Seven Times Square, New York, NY 10036; (d) the Trustee for Spansion LLC’s Senior Secured Floating Rate Notes due 2013; (e) the Trustee for Spansion LLC’s 2.25% Exchangeable Senior Subordinated Debentures Due 2016; (f) the Trustee for Spansion LLC’s 11.25% Senior Notes Due 2016; (g) the administrative agent for the UBS Bank USA line of credit; (h) the creditors listed on the Debtors’ consolidated list of 65 largest unsecured creditors, as filed with the chapter 11 petitions; (i) the Securities and Exchange Commission; (j) the Internal Revenue Service; and (k) local taxing authorities (collectively, the “Notice Parties”). On or about March 5, 2009, the Debtors provided notice of the Final Hearing by first-class mail to the Notice Parties and all other parties who had filed a request for notice prior to that date. Given the nature of the relief sought in the Motion, this Court concludes that the foregoing notice was sufficient and adequate under the circumstances and complies with the Bankruptcy Code, the Bankruptcy Rules, and any other applicable law, and no further notice relating to this proceeding is necessary or required.
D. The Debtors have requested immediate entry of this Order. For the reasons stated above and as stated on the record at the Final Hearing, this Court concludes that immediate entry of this Order is in the best interests of the Debtors’ estates and creditors.
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Based upon the foregoing findings and conclusions, and upon the record before this Court, and good and sufficient cause appearing therefore:
IT IS HEREBY:
1. ORDERED that the Motion is granted as set forth below; and it is further
2. ORDERED that all objections to the entry of this Order that have not been withdrawn are hereby overruled; and it is further
3. ORDERED that all actions taken in connection with or in reliance on the Interim Order are hereby reaffirmed in full as if taken in connection with or in reliance on this Order; and it is further
4. ORDERED that, to the extent any provisions in this Order conflict with any provisions of the Interim Order or the Motion, the provisions of this Order shall control and govern to the extent of such conflict; and it is further
5. ORDERED that any purchase, sale, or other transfer of Claims against the Debtors or equity securities in Spansion in violation of the procedures set forth herein (including the notice requirements set forth in Sections 6 (a) and 7 (a) and (c) below) shall be null and voidab initioas an act in violation of the automatic stay under U.S.C. §§ 362 and 105(a) of the Bankruptcy Code; and it is further
6. ORDERED that the following procedures shall apply to trading in equity securities of Spansion:
a. Any person or entity (as defined in Treasury Regulations Section 1.382-3(a) for purposes of this Section 6) who currently is or becomes a Substantial Shareholder (as defined in Paragraph (e) below) shall file with this Court, and serve on counsel to the Debtors, a notice of such status, in the form attached hereto asExhibit A-1, on or before the later of (A) twenty (20) calendar days after the effective date of the notice of entry of this Order or (B) ten (10) calendar days after becoming a Substantial Shareholder.
b. At least thirty (30) calendar days prior to effectuating any transfer of equity securities (including Options to acquire such securities, as defined below) that would result in an increase in the amount of Spansion Stock (as defined below) beneficially owned by a Substantial Shareholder or would result in a person or entity becoming a Substantial Shareholder, such Substantial Shareholder shall file with this Court, and serve on counsel to the Debtors, advance written notice, in the form attached hereto asExhibit A-2, of the intended transfer of equity securities.
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c. At least thirty (30) calendar days prior to effectuating any transfer of equity securities (including Options to acquire such securities) that would result in a decrease in the amount of Spansion Stock beneficially owned by a Substantial Shareholder or would result in a person or entity ceasing to be a Substantial Shareholder, such Substantial Shareholder shall file with this Court, and serve on counsel to the Debtors, advance written notice, in the form attached hereto asExhibit A-3, of the intended transfer of equity securities (the notices required to be filed and served under Paragraph (b) and this Paragraph (c), each a “Notice of Proposed Transfer”).
d. The Debtors shall have thirty (30) calendar days after receipt of a Notice of Proposed Transfer to file with this Court and serve on such Substantial Shareholder an objection to any proposed transfer of equity securities described in the Notice of Proposed Transfer on the grounds that such transfer may adversely affect the Debtors’ ability to utilize their Tax Attributes. If the Debtors file an objection, such transaction will not be effective unless approved by a final and nonappealable order of this Court. If the Debtors do not object within such 30-day period, such transaction may proceed solely as set forth in the Notice of Proposed Transfer. Further transactions within the scope of this Paragraph must be the subject of additional notices as set forth herein, with an additional 30-day waiting period.
e. For purposes of this Order, (A) a “Substantial Shareholder” is any person or entity which beneficially owns at least 7,673,713 shares (representing approximately 4.75% of all issued and outstanding shares) of the common stock of Spansion (“Spansion Stock”), and (B) “beneficial ownership” (or any variation thereof of Spansion Stock and Options to acquire Spansion Stock) shall be determined in accordance with applicable rules under Section 382 of the Internal Revenue Code of 1986, as amended (the “IRC”), Treasury Regulations promulgated thereunder and rulings issued by the Internal Revenue Service, and thus, to the extent provided therein, from time to time shall include, without limitation, (i) direct and indirect ownership (e.g., a holding company would be considered to beneficially own all shares owned or acquired by its subsidiaries), (ii) ownership by such holder’s family members and persons acting in concert with such holder to make a coordinated acquisition of stock, and (iii) an Option to acquire Spansion Stock. 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. For the avoidance of doubt, by operation of the definition of beneficial ownership in clause (B) of this Paragraph, an owner of an Option to acquire Spansion Stock may be treated as the owner of such Spansion Stock; and it is further
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7. ORDERED that the following procedures shall apply to trading in Claims against the Debtors:3
a.Notice of 382(l)(5) Plan and 382(l)(5) Disclosure Statement. The Debtors shall, upon filing a disclosure statement with respect to a 382(l)(5) Plan (a “382(l)(5) Disclosure Statement”), simultaneously file with the Court and further publish and serve in the manner specified in Paragraph (j) below a separate notice (“Disclosure Statement Notice”) in substantially the form attached asExhibit B-1. The Disclosure Statement Notice shall (i) state that a 382(l)(5) Plan has been filed with the Court, (ii) disclose the most current estimate of the Threshold Amount and (iii) set a record date, which shall be 5:00 p.m., Eastern Time, on the date set by the Court that is ten (10) business days prior to the date set for the hearing on the 382(l)(5) Disclosure Statement (the “Disclosure Statement Notice Record Date”). Each Beneficial Claimholder who holds more than the Threshold Amount (each, a “Substantial Claimholder”) as of either the Petition Date or the Disclosure Statement Notice Record Date is hereby ordered and directed to email and fax to counsel to the Debtors a report in the form attached hereto asExhibit B-2 (the “Initial Holdings Report”) identifying: (I) the nature and amount of Claims held by such Beneficial Claimholder as of the Disclosure Statement Notice Record Date (the “Initial Holdings”); and (II) its Protected Amount. The Initial Holdings Report shall be subject to the confidentiality provisions set forth in Paragraph (i) below and shall be served in accordance with the preceding sentence no later than three (3) business days prior to the first date set by the Court for the hearing to consider the 382(l)(5) Disclosure Statement to the email address and fax number identified on the attachedExhibit B-2. In the event that the hearing to consider the 382(l)(5) Disclosure Statement is adjourned or continued, Substantial Claimholders shall not be required to amend or update their Initial Holdings Reports unless, in the event of an adjournment or continuance, the Debtors establish a new Disclosure Statement Notice Record Date and provide notice thereof, in which case the process above will re-commence.
b.382(l)(5) Disclosure Statement. The 382(l)(5) Disclosure Statement shall contain information adequate to permit a party entitled to vote on a 382(l)(5) Plan to determine whether a 382(l)(5) Plan provides greater value than possible alternatives and shall include, without limitation, the following disclosures: (i) the net present value of the projected tax savings of the 382(l)(5) Plan as compared to a 382(l)(6) Plan based on the financial projections included in the 382(l)(5) Disclosure Statement; (ii) a description of the restrictions on trading with respect to the common stock and any other securities of the reorganized Debtors (the “Affected Securities”) that will be required or imposed under the 382(l)(5) Plan after the Effective Date to preserve such tax savings; (iii) the projected value of the Affected Securities in the aggregate; and (iv) the projected tax savings of the 382(l)(5) Plan as a percentage of the aggregate value of the Affected Securities. In addition, the Debtors shall promptly (and in any event before the end of the hearing on the 382(l)(5) Disclosure Statement) disclose on a separate filing with the SEC on Form 8-K (i) the aggregate amount of Initial Holdings (the “Total Initial Holdings”) and (ii) the estimated maximum amount and percentage of the Total Initial Holdings in each class that may be required to be sold down as provided below. Such disclosures shall be included in the final 382(l)(5) Disclosure Statement. The foregoing does not limit in any way the right of any party in interest to object to the adequacy of the information in the 382(l)(5) Disclosure Statement.
3 | The capitalized terms used in this Section 7 shall have the definitions set forth in Paragraph (m) below. |
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c.Notice of Claimholder Acceptance of 382(l)(5) Plan. The Debtors shall file with the Court and further publish and serve in the manner specified in Paragraph (j) below, not less than ten (10) days prior to the commencement of the Confirmation Hearing, a notice (the “Pre-Confirmation Notice”) substantially in the form attached hereto asExhibit B-3, setting forth: (i) a record date, which shall be 5:00 p.m., Eastern Time, on a date that is ten (10) days prior to the first date set by the Court for the Confirmation Hearing (the “Pre-Confirmation Notice Record Date”); and (ii) identifying the most current estimate of the Threshold Amount (determined as of the Pre-Confirmation Notice Record Date). Each Beneficial Claimholder who is a Substantial Claimholder (as determined by the Threshold Amount identified in the Pre-Confirmation Notice) as of the Pre-Confirmation Notice Record Date is hereby ordered and directed to deliver, via e-mail and fax, a report in the form attached hereto asExhibit B-4 (the “Final Holdings Report”) identifying the nature and amount of Claims held by such Beneficial Claimholder as of the Pre-Confirmation Notice Record Date (the “Final Holdings”). The Final Holdings Report shall be subject to the confidentiality provisions set forth in Paragraph (i) below and shall be served on counsel to the Debtors no later than the date that is three (3) business days prior to the first date set by the Court for the Confirmation Hearing to the e-mail address and fax number identified on the attachedExhibit B-4. In the event that the Confirmation Hearing is adjourned or continued, Substantial Claimholders shall not be required to amend or update their Final Holdings Reports unless, in the event of an adjournment or continuance, the Debtors establish a new Pre-Confirmation Notice Record Date and provides notice thereof, in which case the process above will re-commence.
d.Sell-Down Notice. If the Court confirms the 382(l)(5) Plan, the Debtors shall serve a notice substantially in the form attached hereto asExhibit B-5 (the “Sell-Down Notice”) by overnight delivery service within the United States (or by expedited delivery outside the United States) upon each Substantial Claimholder (as of the Pre-Confirmation Notice Record Date) within five (5) business days after the entry of the order confirming the 382(l)(5) Plan. The Sell-Down Notice shall (i) state that the 382(l)(5) Plan has been confirmed; (ii) contain the results of the calculations described in Paragraph (f)(1) below, including the calculation of the Maximum Amount and the information used to perform all such calculations to the extent that the Debtors are not required by this Order or other confidentiality restrictions to keep such information confidential; and (iii) provide notice that, pursuant to this Order, each Substantial Claimholder is ordered and directed to comply with the Sell-Down Procedures (set forth in Paragraph (f) below) before the Effective Date.
e.Effective Date. The Effective Date of any 382(l)(5) Plan shall be the earlier of thirty (30) calendar days after entry of the order confirming the plan or the date established by the Bankruptcy Court, to be no earlier than eleven (11) days after entry of the confirmation order.
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f.Sell-Down Procedures. If and only to the extent that a 382(l)(5) Plan is confirmed by this Court then, to the extent necessary to effectuate the 382(l)(5) Plan, each Beneficial Claimholder who is, as of the Pre-Confirmation Notice Record Date, a Substantial Claimholder (other than a Permitted Substantial Claimholder or a Substantial Claimholder whose Claims shall not be required to be sold as part of the Sell-Down pursuant to Paragraph (f)(2) below), is hereby ordered and directed to comply with the following sell-down procedures (the “Sell-Down Procedures”):
(1)The Maximum Amount. The Debtors shall calculate the maximum amount of Claims that may be held, as of the Effective Date of the 382(l)(5) Plan, by a Substantial Claimholder that was a Substantial Claimholder as of the Pre-Confirmation Notice Record Date (the “Maximum Amount”) as follows:
a. Based upon the information provided by the Substantial Claimholders in the Final Holdings Reports, the Debtors shall calculate the total amount of Claims that all Substantial Claimholders must sell to effectuate the 382(l)(5) Plan (the “Sell Down Amount”) applying the following rules and assumptions: (i) all Incremental Holdings will be required to be sold prior to any requirement to sell down Claims held by the Substantial Claimholders prior to the Disclosure Statement Notice Record Date, (ii) the Debtors will take into account the portion of Claims held by Substantial Claimholders that the Debtors reasonably conclude (based on evidence furnished by the Substantial Claimholders or their representatives) have not existed since a date that was 18 months before the Petition Date and that are not “ordinary course” Claims, within the meaning of Treasury Regulations Section 1.382 9(d)(2)(iv), and (iii) all Beneficial Claimholders with Protected Amounts will be deemed to own an amount of Claims equal to their Adjusted Protected Amount.
b. If the Sell-Down Amount is less than or equal to the Total Incremental Holdings, the Debtors shall calculate the amount of each Substantial Claimholder’spro rata share of the Sell-Down Amount (i.e., the Sell-Down Amount multiplied by a fraction, the numerator of which is the Substantial Claimholder’s Incremental Holdings and the denominator of which is the Total Incremental Holdings);
c. If the Sell-Down Amount exceeds Total Incremental Holdings, the Debtors shall calculate for each Substantial Claimholder the amount of such Substantial Claimholder’spro rata share of such excess (i.e., the total amount of such excess multiplied by a fraction, the numerator of which is such Substantial Claimholder’s Initial Holdings minus the Threshold Amount and the denominator of which is the Total Initial Holdings in excess of the Threshold Amount of all Substantial Claimholders) and add to that the amount of such Substantial Claimholder’s Incremental Holdings; and
d. For each Substantial Claimholder, the Debtors shall subtract from the total Claims held by such Substantial Claimholder (as reported in the Final Holdings Report) such Substantial Claimholder’s share of the Sell-Down Amount calculated in accordance with clauses (b) or (c) above, as applicable. The difference shall be the Maximum Amount.
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(2)Sell-Down. Prior to the Effective Date, each Substantial Claimholder shall sell an amount of Claims equal to its share of the Sell-Down Amount or such other amount necessary so that no Substantial Claimholder shall, as of the Effective Date, hold Claims in excess of the Maximum Amount for such claimholder (the “Sell-Down”); provided, however, that notwithstanding anything to the contrary in this Order, no Beneficial Claimholder shall be required to sell any Claims to the extent such sale would result in such Beneficial Claimholder having Beneficial Ownership of an aggregate amount of Claims that is less than such Beneficial Claimholder’s Adjusted Protected Amount as shown in the Final Holdings Report, and, for the avoidance of doubt, no Beneficial Claimholder shall be prevented from acquiring Claims, prior to the latest Pre-Confirmation Notice Record Date, to the extent that such Beneficial Claimholder holds less than its Protected Amount. Each Substantial Claimholder shall sell or otherwise transfer its Claims subject to the Sell-Down to unrelated Entities; provided further that the Substantial Claimholder shall not have a reasonable basis to believe that such Entity would own, immediately after the contemplated consummation of such transfer, an amount of Claims in excess of the Maximum Amount for such Claimholder.
(3)Objections to Sell-Down Notices. A Substantial Claimholder who has complied with the notice procedures contained in this Section 7 may, no later than ten (10) calendar days from service of the Sell-Down Notice, object to the manner in which the Maximum Amount or the Sell-Down Amount specified in a Sell-Down Notice were calculated or on the grounds that such notice contained a mathematical error that would result in requiring the Substantial Claimholder to reduce its ownership below the Maximum Amount or the Adjusted Protected Amount for such Substantial Claimholder. In connection with any such objection, the Substantial Claimholder shall disclose its holdings to counsel to the Debtors as of the time of the filing of the objection and as of the time of any hearing on such objection. The Debtors may serve a new Sell-Down Notice by overnight delivery service correcting such errors; any Substantial Claimholder required to sell additional Claims as a result of such correction shall have twenty (20) calendar days from service of any new Sell-Down Notice to effect the additional Sell-Down.
(4)Notice of Compliance. A Substantial Claimholder subject to the Sell-Down shall, before the Effective Date and as a condition to receiving Affected Securities, deliver to counsel to the Debtors, a written statement substantially in the form ofExhibit B-6 hereto that such Substantial Claimholder has complied with the terms and conditions set forth in Paragraph (f)(2) and that such Substantial Claimholder will not hold Claims, as of the Effective Date, in an amount in excess of the greater of the Maximum Amount or the Adjusted Protected Amount (if any) for such Substantial Claimholder (the “Notice of Compliance”). Any Substantial Claimholder who fails to comply with this provision shall not receive Affected Securities with respect to any Claims in excess of the greater of such claimholder’s Adjusted Protected Amount or the then current Threshold Amount.
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(5)Applicable Authority. For the avoidance of doubt, Section 382 of the IRC, the Treasury Regulations promulgated thereunder and all relevant Internal Revenue Service 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. For these purposes and except as specifically provided with respect to Claims ownership in the Treasury Regulations, the rules and authority identified in the preceding sentence shall be treated as if they applied to Claims in the same manner as they apply to stock.
(6)Subsequent Substantial Claimholders. To the extent that any Entity becomes a Substantial Claimholder after the date in which Final Holdings Reports are due, the Court shall retain jurisdiction so that the Debtors may seek equitable relief similar to the relief described in this Order in order to protect the Debtors’ ability to apply Section 382(l)(5) of the IRC.
g.Claimholder Participation. To permit reliance by the Debtors on Treasury Regulation Section 1.382-9(d)(3), any Beneficial Claimholder that participates in formulating any chapter 11 plan of reorganization of or on behalf of the Debtors (which shall include, without limitation, making any suggestions or proposals to the Debtors or their advisors with regard to such a plan), shall not, and shall not be asked to, 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 the Debtors that any Claims in which such Beneficial Claimholder has a beneficial ownership are Newly Traded Claims (the “Participation Restriction”). For this purpose, the Debtors acknowledge and agree that the following activities shall not, where in pursuing such activities the relevant Beneficial Claimholder does not disclose (or otherwise make evident) to the Debtors that such Beneficial Claimholder has beneficial ownership of Newly Traded Claims, constitute a violation of the Participation Restriction: (a) filing an objection to a proposed disclosure statement or to confirmation of a proposed plan of reorganization; (b) negotiating the terms of, or voting to accept or reject, a proposed plan of reorganization; (c) reviewing or commenting on a proposed business plan; (d) membership on the Creditors’ Committee or other official orad hoc committee; (e) providing information other than with respect to its Claims to the Debtors on a confidential basis; or (f) taking any action required by this Order. Any claimholder found by the Court to have violated the Participation Restriction, and who, as a result, would prevent the Debtors from implementing a 382(l)(5) Plan, shall be required to dispose of Newly Traded Claims of which such Entity has Beneficial Ownership in the manner specified in Paragraph (f)(2) above and shall be subject to the Forfeiture Remedy described in Paragraph (h) below.
h.Sanctions for Noncompliance. If any Substantial Claimholder fails to comply with the Sell-Down applicable to it, such Substantial Claimholder shall not be entitled to receive Beneficial Ownership of any Affected Securities in connection with the implementation of the 382(l)(5) Plan with respect to any Claims required to be sold pursuant to a Sell-Down Notice. Any Substantial Claimholder that violates this Order shall be required to forfeit the Affected Securities (the “Forfeiture Remedy”). The Debtors may seek to enforce the
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Forfeiture Remedy, on notice to the Entity upon whom such sanctions are sought to be imposed, on an expedited basis. The Debtors also reserve the right to seek from this Court, on an expedited basis, other sanctions or damages for a willful violation of this Order, on notice to the Entity upon whom such sanctions are sought to be imposed, including, but not limited to damages for loss of any tax benefits caused by such violation and any injunction or other relief necessary or appropriate to remedy such violation. Any distribution of Affected Securities pursuant to the implementation of the 382(l)(5) Plan that is precluded by an order enforcing the Forfeiture Remedy (the “Forfeited Equity”) shall be voidab initio. Any Entity that receives Forfeited Equity shall, immediately upon becoming aware of such fact, return the Forfeited Equity to the reorganized Debtors or, if all of the shares properly issued to such Entity and all or any portion of such Forfeited Equity have been sold prior to the time such Entity becomes aware of such fact, such Entity shall return to the reorganized Debtors (a) any Forfeited Equity still held by such Entity and (b) the proceeds attributable to the sale of Forfeited Equity. Any Entity that receives Forfeited Equity and fails to comply with the preceding sentence shall be subject to such additional sanctions as the Court may determine. The reorganized Debtors shall distribute any Forfeited Equity in accordance with the 382(l)(5) Plan.
i.Confidentiality. The Initial Holdings Report, the Final Holdings Report, the Sell-Down Notices and the Notice of Compliance, and the information contained therein, shall be treated as confidential information and shall be available only to the Debtors and counsel and financial or tax advisors to the Debtors. Each recipient of any Initial Holdings Report, Final Holdings Report, Sell-Down Notice and the Notice of Compliance (or similar notices provided under the Order) shall keep the information contained therein confidential and shall not disclose such information to any Entity (including, without limitation, any member of the Creditors’ Committee) unless required to produce it in a legal proceeding or subject to further Court order.
j.Notice. Any notices required to be published under Section 7 of this Order shall be published inThe Wall Street Journal andThe Financial Times (U.S. edition). All notices required to be served shall be served on the following parties via electronic mail if an e-mail address is known, or by overnight mail if an e-mail address is not known: (a) the United States Trustee; (b) counsel to the administrative agent for the Debtors’ prepetition lenders; (c) counsel to thead-hoc committee of holders of Spansion LLC’s Senior Secured Floating Rate Notes due 2013, Robert J. Stark, Brown Rudnick LLP, Seven Times Square, New York, NY 10036; (d) the Trustee for Spansion LLC’s Senior Secured Floating Rate Notes due 2013; (e) the Trustee for Spansion LLC’s 2.25% Exchangeable Senior Subordinated Debentures Due 2016; (f) the Trustee for Spansion LLC’s 11.25% Senior Notes Due 2016; (g) the administrative agent for the UBS Bank USA line of credit; (h) the creditors listed on the Debtors’ consolidated list of 65 largest unsecured creditors, as filed with the chapter 11 petitions; (i) the Securities and Exchange Commission; (j) the Internal Revenue Service; (k) local taxing authorities; (l) counsel to the administrative agent for the Debtors’ debtor-in-possession financing, if any; (m) any statutory Committee appointed under Section 1102 of the Bankruptcy Code; and (n) the transfer agents for any Spansion Stock.
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k. The requirements set forth in this Order are in addition to the requirements of Bankruptcy Rule 3001(e) and applicable securities, corporate and other laws, and do not excuse compliance therewith.
l. The Court shall retain jurisdiction to interpret, enforce, aid in the enforcement of and resolve any disputes or matters related to any of the provisions of this Order.
m. For purposes of Section 7 of this Order, the following definitions shall apply:
i) “382(l)(5) Disclosure Statement” means a disclosure statement filed with the Court relating to a 382(l)(5) Plan.
ii) “382(l)(5) Plan” means a plan of reorganization for the Debtors under chapter 11 of the Bankruptcy Code that provides for or contemplates the use of net operating loss carryforwards and other tax attributes under Section 382(l)(5) of the IRC and that restricts transfers of Beneficial Ownership of Affected Securities for not less than two years after the reorganization in order to avoid an “ownership change,” as such term is defined in Section 382 and the Treasury Regulations promulgated thereunder.
iii) “382(l)(6) Plan” means a plan of reorganization for the Debtors under chapter 11 of the Bankruptcy Code that provides for or contemplates the use of net operating loss carryforwards and other tax attributes under, and subject to the limitations of, Section 382(l)(6) of the IRC.
iv) “Adjusted Protected Amount” means the lesser of (a) the Protected Amount or (b) the Claims held by such Beneficial Claimholder as of the latest Pre-Confirmation Notice Record Date (as declared in the applicable Final Holdings Report for such Beneficial Claimholder).
v) “Applicable Percentage” means, if only one class of Affected Securities is to be issued pursuant to the terms of a 382(l)(5) Plan, 4.75% of the number of such shares that the Debtors reasonably estimate will be issued at the effective date of such 382(l)(5) Plan. If more than one class of Affected Securities is to be distributed pursuant to the terms of a 382(l)(5) Plan, the Applicable Percentage shall be determined by the Debtors in their 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(l)(5) Disclosure Statement, and shall be expressed in a manner that makes clear how many shares of common equity would constitute the Applicable Percentage.
vi) “Beneficial Ownership” of Claims shall be determined in accordance with applicable rules under Section 382 of the IRC and regulations promulgated thereunder, as if such rules applied to Claims in the same manner as they apply to equity except to the extent inconsistent with rules and regulations specifically applicable to the ownership of Claims.
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vii) “Beneficial Claimholders” means those Entities that have Beneficial Ownership of Claims.
viii) “Claim” shall have the meaning ascribed to that term in Section 101(5) of the Bankruptcy Code and includes, without limitation, a lessor’s right to any current or future payment under or arising out of any lease with respect to which any Debtor is a lessee.
ix) “Confirmation Date” means the date on which the Court enters an order confirming a 382(l)(5) Plan.
x) “Confirmation Hearing” means a hearing held before this Court on the confirmation of the 382(l)(5) Plan pursuant to Section 1129 of the Bankruptcy Code.
xi) “Effective Date” The Effective Date of any 382(l)(5) Plan shall be the earlier of thirty (30) calendar days after entry of the order confirming the plan or the date established by the Bankruptcy Court, to be no earlier than eleven (11) days after entry of the confirmation order.
xii) “Entity” means a person or entity for purposes of the rules under Section 382 of the IRC.
xiii) “Incremental Holdings” means the amount, if any, of Claims identified in each Substantial Claimholders’ Final Holdings Report in excess of the greater of (i) the amount contained in each respective Substantial Claimholder’s Initial Holdings Report and (ii) the Threshold Amount as of the Disclosure Statement Notice Record Date.
xiv) “Newly Traded Claims” means Claims (i) with respect to which an Entity acquired beneficial ownership after the date that was 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 Entity has always had beneficial ownership.
xv) “Permitted Substantial Claimholder” means a Substantial Claimholder whom the Debtors reasonably conclude acquired its Claim in the ordinary course of the Debtors’ trade or business (within the meaning of Treasury Regulations Section 1.382-9(d)(2)(iv)) and has at all times since the creation of such Claim held the Beneficial Ownership in that Claim.
xvi) “Petition Date” means March 1, 2009.
xvii) “Protected Amount” means the amount of Claims of which a Beneficial Claimholder had Beneficial Ownership on the Petition Date, increased by the amount of Claims of which such Beneficial Claimholder acquires 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 that such Beneficial Claimholder sells pursuant to trades entered into before the Petition Date that had not yet closed as of the Petition Date.
13
xviii) “Substantial Claimholder” means a Beneficial Claimholder who holds more than the Threshold Amount as of the applicable record date and time, as described in Paragraphs (a) and (c) above.
xix) “Threshold Amount” means the amount of Claims that are projected by the Debtors to entitle the Beneficial Claimholder thereof to become the Beneficial Claimholder of the Applicable Percentage of Affected Securities.
xx) “Total Incremental Holdings” means the aggregate amount of all of each Substantial Claimholders’ Incremental Holdings; and it is further
8. ORDERED that any notice required by the Order to be served by Substantial Claimholders, if effected prior to the filing of a proof of claim by a Substantial Claimholder, will not limit the right of a creditor to assert any and all Claims, whether or not such Claims are in addition to or differ from those listed on the notice, in a proof of claim filed in accordance with any future orders of this Court; and it is further
9. ORDERED that the Debtors may waive, in writing and in their sole and absolute discretion, any and all restrictions, stays, and notification procedures contained in this Order; and it is further
10. ORDERED that the Debtors shall serve the Notice of Order setting forth the procedures authorized herein substantially in the form annexed hereto asExhibit C on: (a) the United States Trustee; (b) counsel to the administrative agent for the Debtors’ prepetition lenders; (c) counsel to the Ad Hoc Consortium, Robert J. Stark, Brown Rudnick LLP, Seven Times Square, New York, NY 10036; (d) the Trustee for Spansion LLC’s Senior Secured Floating Rate Notes due 2013; (e) the Trustee for Spansion LLC’s 2.25% Exchangeable Senior Subordinated Debentures Due 2016; (f) the Trustee for Spansion LLC’s 11.25% Senior Notes Due 2016; (g) the administrative agent for the UBS Bank USA line of credit; (h) the creditors listed on the Debtors’ consolidated list of 65 largest unsecured creditors, as filed with the chapter 11 petitions; (i) the Securities and Exchange Commission; (j) the Internal Revenue Service; (k)
14
local taxing authorities; (l) counsel to the administrative agent for the Debtors’ debtor-in-possession financing, if any; (m) any statutory Committee appointed under Section 1102 of the Bankruptcy Code; (n) the transfer agents for any Spansion Stock; (o) all parties who file notices of transfers of Claims under Bankruptcy Rule 3001; and (p) all known creditors. Notice served pursuant to the preceding sentence shall be via first class mail, postage prepaid. The Debtors shall also file a copy of this Order as an exhibit to a report on Form 8-K filed with the Securities and Exchange Commission. Additionally, the Debtors shall publish notice of this Order inThe Wall Street Journal andThe Financial Times (U.S. edition) in form and substance satisfactory to the Creditors’ Committee and the Ad Hoc Consortium. Upon receipt of the Notice of Order, any transfer agent for any Spansion Stock shall send such Notice of Order to all holders of such Spansion Stock registered with such transfer agent;provided,however, that if any transfer agent provides the Debtors with the name and addresses of all holders of such Spansion Stock, the Debtors shall deliver the Notice of Order to such holders. Any such registered holder shall, in turn, provide such Notice of Order to any holder for whose account such registered holder holds such Spansion Stock, and so on down the chain of ownership. Any person or entity or broker or agent acting on their behalf who sells 2,000,000 shares of Spansion Stock (or an Option with respect thereto) to another person or entity must provide a copy of the Notice of Order authorizing such procedures to such purchaser, or any broker or agent acting on their behalf, of such Spansion Stock. No further notice of entry of this Order need be served by the Debtors; and it is further
11. ORDERED that any transfer agent(s) for any Spansion Stock having notice hereof shall provide such Notice of Order to all holders of such Spansion Stock in excess of 4,000,000 shares registered with such transferprovidedthat, if any transfer agent provides the
15
Debtors with the name and addresses of all holders of such Spansion Stock, the Debtors shall deliver the Notice of Order to such holders. Any such registered holder must, in turn, provide such Notice of Order to any holder for whose account such registered holder holds such Spansion Stock in excess of 4,000,000 shares, and so on down the chain of ownership; and it is further
12. ORDERED that any person or entity or broker or agent acting on such person or entity’s behalf who sells an aggregate amount of at least 2,000,000 shares of Spansion Stock (or an Option with respect thereto) to another person or entity shall provide a copy of the Notice of Order to such purchaser of such Spansion Stock or to any broker or agent acting on such purchaser’s behalf; and it is further
13. ORDERED that the requirements set forth in this Order are in addition to the requirements of Rule 3001(e) of the Federal Rules of Bankruptcy Procedure and applicable securities, corporate and other laws, and do not excuse compliance therewith; and it is further
14. ORDERED that if the 382(l)(5) Plan provides that Senior Secured Floating Rate Note holders will receive Affected Securities, then the Ad Hoc Consortium shall have all the rights afforded to the Creditors’ Committee herein; provided, further, that if the 382(l)(5) Plan provides that Senior Secured Floating Rate Note holders will receive Affected Securities, then the Ad Hoc Consortium shall also have the following rights: (i) the right to receive the Initial Holdings Report referenced in Section 7(a), (ii) the right to consult with the Debtors regarding the calculation of the Maximum Amount (as provided in Section 7(f)), (iii) the right to consult with the Debtors regarding the calculation of the Threshold Amount, and (iv) the right to consult with the Debtors regarding the calculation of the Applicable Percentage; and it is further
16
15. ORDERED that if the 382(l)(5) Plan provides that the Senior Secured Floating Rate Note holders will either, as a class, (i) not be required to sell-down Claims representing the Senior Secured Floating Rate Notes, or (ii) not receive Affected Securities, then holders of such Senior Secured Floating Rate Notes will not be required to comply with any of the Sell-Down Procedures with respect to such Senior Secured Floating Rate Notes, including, but not limited to the Initial Holdings Report, Final Holdings Report and Notice of Compliance; and it is further
16. ORDERED that this Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order.
| | | | |
| Dated: April 1, 2009 | | | | /s/ Kevin J. Carey |
| Wilmington, Delaware | | | | Kevin J. Carey |
| | | | Chief United States Bankruptcy Judge |
17
EXHIBIT A-1
NOTICE OF STATUS AS SUBSTANTIAL SHAREHOLDER
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| | | | |
In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered |
NOTICE OF STATUS AS A SUBSTANTIAL SHAREHOLDER2
PLEASE TAKE NOTICE that [Name of Shareholder] is/has become a Substantial Shareholder with respect to Spansion Stock (as defined herein and in the Order) of Spansion Inc. (“Spansion”), a debtor and debtor-in-possession in Case No. 09-10690 (KJC) pending in the United States Bankruptcy Court for the District of Delaware.
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
2 | For purposes of this Order, (A) a “Substantial Shareholder” is any person or entity which beneficially owns at least 7,673,713 shares (representing approximately 4.75% of all issued and outstanding shares) of the common stock of Spansion Inc. (“Spansion Stock”), and (B) “beneficial ownership” (or any variation thereof of Spansion Stock and Options to acquire Spansion Stock) shall be determined in accordance with applicable rules under Section 382 of the I.R.C., Treasury Regulations promulgated thereunder and rulings issued by the Internal Revenue Service, and thus, to the extent provided therein, from time to time shall include, without limitation, (i) direct and indirect ownership (e.g., a holding company would be considered to beneficially own all shares owned or acquired by its subsidiaries), (ii) ownership by such holder’s family members and persons acting in concert with such holder to make a coordinated acquisition of stock, and (iii) an Option to acquire Spansion Stock. 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. For the avoidance of doubt, by operation of the definition of beneficial ownership in clause (B) of this Paragraph, an owner of an Option to acquire Spansion Stock may be treated as the owner of such Spansion Stock. |
PLEASE TAKE FURTHER NOTICE that, as of [Date], [Name of Shareholder] beneficially owns [ ] shares of the Spansion Stock. The following table sets forth the date(s) on which [Name of Shareholder] acquired or otherwise became the beneficial owner of such Spansion Stock:
| | |
Number Of Shares | | Date Acquired |
| | |
| | |
| | |
| | |
(Attach additional page if necessary)
PLEASE TAKE FURTHER NOTICE that the last four digits of the taxpayer identification or social security number of [Name of Shareholder] is [ ].
PLEASE TAKE FURTHER NOTICE that, under penalty of perjury, [Name of Shareholder] 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 that certain Final Order Establishing Notice, Hearing, and Sell-Down Procedures for Trading in Equity Securities and Claims Against the Debtors’ Estates (Docket No. [ ]), this Notice is being (a) filed with the Office of the United States Trustee for the District of Delaware, 844 King Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801, and (b) served upon counsel to the Debtors, Latham & Watkins LLP, 355 South Grand Avenue, Los Angeles, California 90071-1560 (Attn: Gregory O. Lunt).
2
| | |
| Respectfully Submitted, |
| |
| | |
| | (Name of Shareholder) |
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| By: | | |
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| Name: | | |
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| Title: | | |
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| Address: | | |
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| Telephone: | | |
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| Facsimile: | | |
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| Date: | | |
3
EXHIBIT A-2
NOTICE OF INTENT TO ACQUIRE EQUITY INTEREST
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| | | | |
In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered |
NOTICE OF INTENT TO PURCHASE, ACQUIRE, OR OTHERWISE
ACCUMULATE AN EQUITY INTEREST
PLEASE TAKE NOTICE THAT [Name of Prospective Acquirer] hereby provides notice of its intention to purchase, acquire, or otherwise accumulate one or more shares of Spansion Stock (as defined herein and in the Order) of Spansion Inc. (“Spansion”) or an Option with respect thereto (as defined herein and in the Order) (the “Proposed Transfer”).
PLEASE TAKE FURTHER NOTICE THAT, if applicable, on [Prior Date(s)], [Name of Prospective Acquirer] filed a Notice of Status as a Substantial Shareholder2 with the United States Bankruptcy Court for the District of Delaware (the “Court”) and served copies thereof on Debtors’ counsel.
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
2 | For purposes of this Order, (A) a “Substantial Shareholder” is any person or entity which beneficially owns at least 7,673,713 shares (representing approximately 4.75% of all issued and outstanding shares) of the common stock of Spansion Inc. (“Spansion Stock”), and (B) “beneficial ownership” (or any variation thereof of Spansion Stock and Options to acquire Spansion Stock) shall be determined in accordance with applicable rules under Section 382 of the I.R.C., Treasury Regulations promulgated thereunder and rulings issued by the Internal Revenue Service, and thus, to the extent provided therein, from time to time shall include, without limitation, (i) direct and indirect ownership (e.g., a holding company would be considered to beneficially own all shares owned or acquired by its subsidiaries), (ii) ownership by such holder’s family members and persons acting in concert with such holder to make a coordinated acquisition of stock, and (iii) an Option to acquire Spansion Stock. 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. For the avoidance of doubt, by operation of the definition of beneficial ownership in clause (B) of this Paragraph, an owner of an Option to acquire Spansion Stock may be treated as the owner of such Spansion Stock. |
PLEASE TAKE FURTHER NOTICE THAT [Name of Prospective Acquirer] currently beneficially owns [ ] shares of Spansion Stock.
PLEASE TAKE FURTHER NOTICE THAT, pursuant to the Proposed Transfer, [Name of Prospective Acquirer] proposes to purchase, acquire, or otherwise accumulate [ ] shares of Spansion Stock or an Option with respect to [ ] shares of Spansion Stock. If the Proposed Transfer is permitted to occur, [Name of Prospective Acquirer] will beneficially own [ ] shares of Spansion Stock after the transfer (including any Options with respect to any Common Stock).
PLEASE TAKE FURTHER NOTICE THAT the last four digits of the taxpayer identification or social security number of [Name of Prospective Acquirer] is [ ].
PLEASE TAKE FURTHER NOTICE that, under penalty of perjury, [Name of Prospective Acquirer] 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 that certain Final Order Establishing Notice, Hearing, and Sell-Down Procedures for Trading in Equity Securities and Claims Against the Debtors’ Estates (Docket No. [ ]), this Notice is being (a) filed with the Office of the United States Trustee for the District of Delaware, 844 King Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801, and (b) served upon counsel to the Debtors, Latham & Watkins LLP, 355 South Grand Avenue, Los Angeles, California 90071-1560 (Attn: Gregory O. Lunt).
2
PLEASE TAKE FURTHER NOTICE that the Debtors have 30 calendar days after receipt of this Notice to object to the Proposed Transfer described herein. If the Debtors file an objection, such Proposed Transfer will not be effective unless approved by a final and nonappealable order of the Court. If the Debtors do not object within such 30-day period, then after expiration of such period the Proposed Transfer may proceed solely as set forth in the Notice.
PLEASE TAKE FURTHER NOTICE that any further transactions contemplated by [Name of Prospective Acquirer] that may result in [Name of Prospective Acquirer] purchasing, acquiring or otherwise accumulating additional shares of Spansion Stock (or an Option with respect thereto) will each require an additional notice filed with the Court to be served in the same manner as this Notice.
| | |
| Respectfully Submitted, |
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| | (Name of Shareholder) |
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| By: | | |
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| Name: | | |
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| Title: | | |
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| Address: | | |
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| Telephone: | | |
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| Facsimile: | | |
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| Date: | | |
3
EXHIBIT A-3
NOTICE OF INTENT TO TRANSFER EQUITY INTEREST
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| | | | |
In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered |
NOTICE OF INTENT TO SELL, TRADE OR OTHERWISE
TRANSFER AN EQUITY INTEREST
PLEASE TAKE NOTICE THAT [Name of Prospective Seller] hereby provides notice of its intention to sell, trade, or otherwise transfer one or more shares of Spansion Stock (as defined herein and in the Order) of Spansion Inc. (“Spansion”) or an Option with respect thereto (as defined herein and in the Order) (the “Proposed Transfer”).
PLEASE TAKE FURTHER NOTICE THAT, if applicable, on [Prior Date(s)], [Name of Prospective Seller] filed a Notice of Status as a Substantial Shareholder2 with the United States Bankruptcy Court for the District of Delaware (the “Court”) and served copies thereof on Debtors’ counsel.
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
2 | For purposes of this Order, (A) a “Substantial Shareholder” is any person or entity which beneficially owns at least 7,673,713 shares (representing approximately 4.75% of all issued and outstanding shares) of the common stock of Spansion Inc. (“Spansion Stock”), and (B) “beneficial ownership” (or any variation thereof of Spansion Stock and Options to acquire Spansion Stock) shall be determined in accordance with applicable rules under Section 382 of the I.R.C., Treasury Regulations promulgated thereunder and rulings issued by the Internal Revenue Service, and thus, to the extent provided therein, from time to time shall include, without limitation, (i) direct and indirect ownership (e.g., a holding company would be considered to beneficially own all shares owned or acquired by its subsidiaries), (ii) ownership by such holder’s family members and persons acting in concert with such holder to make a coordinated acquisition of stock, and (iii) an Option to acquire Spansion Stock. 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. For the avoidance of doubt, by operation of the definition of beneficial ownership in clause (B) of this Paragraph, an owner of an Option to acquire Spansion Stock may be treated as the owner of such Spansion Stock. |
PLEASE TAKE FURTHER NOTICE THAT [Name of Prospective Seller] currently beneficially owns [ ] shares of the Spansion Stock (including any Options with respect to any Spansion Stock).
PLEASE TAKE FURTHER NOTICE THAT, pursuant to the Proposed Transfer, [Name of Prospective Seller] proposes to sell, trade, or otherwise transfer [ ] shares of Spansion Stock or an Option with respect to [ ] shares of Spansion Stock. If the Proposed Transfer is permitted to occur, [Name of Prospective Seller] will beneficially own [ ] shares of Spansion Stock after the transfer.
PLEASE TAKE FURTHER NOTICE THAT the last four digits of the taxpayer identification or social security number of [Name of Prospective Seller] is [ ].
PLEASE TAKE FURTHER NOTICE that, under penalty of perjury, [Name of Prospective Seller] 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 that certain Final Order Establishing Notice, Hearing, and Sell-Down Procedures for Trading in Equity Securities and Claims Against the Debtors’ Estates (Docket No. [_]), this Notice is being (a) filed with the Office of the United States Trustee for the District of Delaware, 844 King Street, Suite 2207, Lockbox 35, Wilmington, Delaware 19801, and (b) served upon counsel to the Debtors, Latham & Watkins LLP, 355 South Grand Avenue, Los Angeles, California 90071-1560 (Attn: Gregory O. Lunt).
2
PLEASE TAKE FURTHER NOTICE that the Debtors have 30 calendar days after receipt of this Notice to object to the Proposed Transfer described herein. If the Debtors file an objection, such Proposed Transfer will not be effective unless approved by a final and nonappealable order of the Court. If the Debtors do not object within such 30-day period, then after expiration of such period the Proposed Transfer may proceed solely as set forth in the Notice.
PLEASE TAKE FURTHER NOTICE that any further transactions contemplated by [Name of Prospective Seller] that may result in [Name of Prospective Seller] selling, trading or otherwise transferring shares of Spansion Stock (or an Option with respect thereto) will each require an additional notice filed with the Court to be served in the same manner as this Notice.
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| Respectfully Submitted, |
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| | (Name of Shareholder) |
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| By: | | |
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| Name: | | |
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| Title: | | |
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| Address: | | |
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3
EXHIBIT B-1
NOTICE OF FILING OF DISCLOSURE STATEMENT
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| | | | |
In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered |
NOTICE OF (A) FILING OF DISCLOSURE STATEMENT WITH RESPECT
TO 382(L)(5) PLAN OF REORGANIZATION, (B) THRESHOLD AMOUNT,
(C) DISCLOSURE STATEMENT NOTICE RECORD DATE AND
(D) OBLIGATIONS OF BENEFICIAL CLAIMHOLDERS
PLEASE TAKE NOTICE OF THE FOLLOWING:
1. Entry of Order. On [ ], 2009, the United States Bankruptcy Court for the District of Delaware entered the Final Order Establishing Notice, Hearing, and Sell-Down Procedures for Trading in Equity Securities and Claims Against the Debtors’ Estates (Docket No. [ ]) (the “Trading Order”). Unless otherwise defined in this Notice, capitalized terms and phrases used herein have the meanings given to them in the Trading Order.
2. Notice of Filing of Disclosure Statement with Respect to 382(l)(5) Plan of Reorganization. On [Date], the Debtors filed a disclosure statement (Docket No. [ ]) with respect to the [caption of plan] (Docket No. [ ]) (the “Plan”). The Plan is a 382(l)(5) Plan, as defined in the Trading Order and has been filed with the Court.
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
3. Threshold Amount. The Debtors’ most current estimate of the Threshold Amount2 of Claims is [ ].
4. Disclosure Statement Notice Record Date. The Disclosure Statement Notice Record Date is 5:00 p.m., Eastern Time, on [insert date that is ten business days prior to the date set for the hearing on the Disclosure Statement].
5. Obligation of Beneficial Claimholders. Each Beneficial Claimholder who holds more than the Threshold Amount of Claims as of the Disclosure Statement Notice Record Date must, in order to comply with the Trading Order, e-mail and fax to counsel to the Debtors a report in the form attached hereto as Annex 1 (the “Initial Holdings Report”) identifying (a) the nature and amount of Claims held by such Beneficial Holder as of the Disclosure Statement Notice Record Date and (b) its Protected Amount.3
6. Deadline for Serving Initial Holdings Report. The Initial Holdings Report shall be served in accordance with the preceding sentence to the e-mail address and fax number identified on the attached Annex 1 no later than 5:00 p.m., Eastern Time, on [date that is three business days prior to the first date set by the Court for the hearing to consider the Disclosure Statement].
| | | | |
| Dated: | | | | BY ORDER OF THE COURT |
| Wilmington, Delaware | | | | |
2 | The term “Threshold Amount” is defined in the Trading Order as: “the amount of Claims that are projected by the Debtors to entitle the Beneficial Claimholder thereof to become the Beneficial Claimholder of the Applicable Percentage of Affected Securities.” |
3 | The term “Protected Amount” is defined in the Trading Order as: “the amount of Claims of which a Beneficial Claimholder had Beneficial Ownership on the Petition Date, increased by the amount of Claims of which such Beneficial Claimholder acquires 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 that such Beneficial Claimholder sells pursuant to trades entered into before the Petition Date that had not yet closed as of the Petition Date.” |
2
ANNEX 1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| | | | |
In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered |
INITIAL HOLDINGS REPORT
This Initial Holdings Report is being submitted as required by the Final Order Establishing Notice, Hearing, and Sell-Down Procedures for Trading in Equity Securities and Claims Against the Debtors’ Estates (Docket No. [ ]) (the “Trading Order”). Unless otherwise defined in this Report, capitalized terms and phrases used herein have the meanings given to them in the Trading Order.
1. As of the Disclosure Statement Notice Record Date, the undersigned is the Beneficial Owner of the following Claims:
| | |
Nature of Claim(s) (e.g., trade claim, rejection
damage claim, bond claim, indemnity claim, etc.) | | Dollar Amount of Claim(s) |
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| | |
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Total | | |
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
2. As of the Petition Date, the undersigned was the Beneficial Owner of an amount of Claims equal to $ (such amount being its Protected Amount). If, as of the date of the Pre-Confirmation Notice Record Date, the undersigned has Beneficial Ownership of an amount of Claims less than its Protected Amount, then such lesser amount shall be the undersigned’s Adjusted Protected Amount.2
3. In accordance with the Trading Order, a copy of this Initial Holdings Report was served by the undersigned by fax and e-mail on:
|
| Counsel for the Debtors: |
|
| Gregory O. Lunt |
| LATHAM & WATKINS LLP |
| 355 South Grand Avenue |
| Los Angeles, California 90071-1560 |
| Telephone: (213) 485-1234 |
| Facsimile: (213) 891-8763 |
| E-mail: Gregory.Lunt@lw.com |
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| Name: | | |
| Social Security or Federal Tax | | |
| I.D. No. (optional): | | |
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| Signature: | | |
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| If by Authorized Agent, Name and | | |
| Title: | | |
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| Street Address: City, State, | | |
| Zip Code: | | |
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| Telephone Number: | | |
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| Date: | | |
2 | The term“Adjusted Protected Amount” is defined in the Trading Order as: “the lesser of (a) the Protected Amount or (b) the Claims held by such Beneficial Claimholder as of the latest Pre-Confirmation Notice Record Date (as declared in the applicable Final Holdings Report for such Beneficial Claimholder).” |
2
EXHIBIT B-2
INITIAL HOLDINGS REPORT
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| | | | |
In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered |
INITIAL HOLDINGS REPORT
This Initial Holdings Report is being submitted as required by the Final Order Establishing Notice, Hearing, and Sell-Down Procedures for Trading in Equity Securities and Claims Against the Debtors’ Estates (Docket No. [ ]) (the “Trading Order”). Unless otherwise defined in this Report, capitalized terms and phrases used herein have the meanings given to them in the Trading Order.
1. As of the Disclosure Statement Notice Record Date, the undersigned is the Beneficial Owner of the following Claims:
| | |
Nature of Claim(s) (e.g., trade claim, rejection
damage claim, bond claim, indemnity claim, etc.) | | Dollar Amount of Claim(s) |
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Total | | |
2. As of the Petition Date, the undersigned was the Beneficial Owner of an amount of Claims equal to $ (such amount being its Protected Amount). If, as of the date of the Pre-Confirmation Notice Record Date, the undersigned has Beneficial Ownership of an amount of Claims less than its Protected Amount, then such lesser amount shall be the undersigned’s Adjusted Protected Amount.
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
3. In accordance with the Trading Order, a copy of this Initial Holdings Report was served by the undersigned by fax and e-mail on:
|
| Counsel for the Debtors: |
|
| Gregory O. Lunt |
| LATHAM & WATKINS LLP |
| 355 South Grand Avenue |
| Los Angeles, California 90071-1560 |
| Telephone: (213) 485-1234 |
| Facsimile: (213) 891-8763 |
| E-mail: Gregory.Lunt@lw.com |
| | |
| |
| Name: | | |
| Social Security or Federal Tax | | |
| I.D. No. (optional): | | |
| |
| Signature: | | |
| |
| If by Authorized Agent, Name and | | |
| Title: | | |
| |
| Street Address: City, State, | | |
| Zip Code: | | |
| |
| Telephone Number: | | |
| |
| Date: | | |
2
EXHIBIT B-3
PRE-CONFIRMATION NOTICE OF OBLIGATIONS
OF BENEFICIAL CLAIMHOLDERS
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| | | | |
In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered |
NOTICE OF (A) THRESHOLD AMOUNT, (B) PRE-CONFIRMATION NOTICE
RECORD DATE AND (C) OBLIGATIONS OF BENEFICIAL CLAIMHOLDERS
PLEASE TAKE NOTICE OF THE FOLLOWING:
1. Entry of Order. On [ ], 2009, the United States Bankruptcy Court for the District of Delaware entered the Final Order Establishing Notice, Hearing, and Sell-Down Procedures for Trading in Equity Securities and Claims Against the Debtors’ Estates (Docket No. [ ]) (the “Trading Order”). Unless otherwise defined in this Notice, capitalized terms and phrases used herein have the meanings given to them in the Trading Order.
2. Threshold Amount. The Debtor’s current estimate of the Threshold Amount2 of Claims is [ ].
3. Pre-Confirmation Notice Record Date. The Pre-Confirmation Notice Record Date is 5:00 p.m., Eastern Time, on [the service date, which shall not be less than ten days prior to the first date set by the Court for the commencement of the Confirmation Hearing].
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
2 | The term “Threshold Amount” is defined in the Trading Order as: “the amount of Claims that are projected by the Debtors to entitle the Beneficial Claimholder thereof to become the Beneficial Claimholder of the Applicable Percentage of Affected Securities.” |
4. Obligation of Beneficial Claimholders. Each Beneficial Claimholder who holds more than the Threshold Amount of Claims as of the Pre-Confirmation Notice Record Date (each, a“Substantial Claimholder”) must, in order to comply with the Trading Order, e-mail and fax to counsel to the Debtors a report in the form attached hereto as Annex 1 (the“Final Holdings Report”) identifying the nature and amount of Claims held by such Beneficial Holder as of the Pre-Confirmation Notice Record Date.
5. Deadline for Serving Final Holdings Report. The Final Holdings Report shall be served in accordance with the preceding sentence to the e-mail address and fax number identified on the attached Annex 1 no later than 5:00 p.m., Eastern Time, on [date that is three days prior to the first date set by the Court for the commencement of the Confirmation Hearing].
| | | | | | | | |
| | | | |
| Dated: | | | | | | | | BY ORDER OF THE COURT |
| Wilmington, Delaware | | | | | | |
2
ANNEX 1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| | | | |
In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered |
FINAL HOLDINGS REPORT
This Final Holdings Report is being submitted as required by the Final Order Establishing Notice, Hearing, and Sell-Down Procedures for Trading in Equity Securities and Claims Against the Debtors’ Estates (Docket No. [ ]) (the “Trading Order”). Unless otherwise defined in this Report, capitalized terms and phrases used herein have the meanings given to them in the Trading Order.
1. As of the Pre-Confirmation Notice Record Date, the undersigned is the Beneficial Owner of the following Claims:
| | |
Nature of Claim(s) (e.g., trade claim, rejection
damage claim, bond claim, indemnity claim, etc.) | | Dollar Amount of Claim(s) |
| | |
| | |
| | |
| | |
Total | | |
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
2. As of the Petition Date, the undersigned’s Protected Amount was $ . The total amount listed in Paragraph 1, above, is $ . The undersigned’s Adjusted Protected Amount is $ , which is equal to the lesser of the two foregoing amounts.
3. In accordance with the Trading Order, a copy of this Final Holdings Report was served by the undersigned by e-mail and fax on:
|
| Counsel for the Debtors: |
|
| Gregory O. Lunt |
| LATHAM & WATKINS LLP |
| 355 South Grand Avenue |
| Los Angeles, California 90071-1560 |
| Telephone: (213) 485-1234 |
| Facsimile: (213) 891-8763 |
| E-mail: Gregory.Lunt@lw.com |
| | |
| |
| Name: | | |
| Social Security or Federal Tax | | |
| I.D. No. (optional): | | |
| |
| Signature: | | |
| |
| If by Authorized Agent, Name and | | |
| Title: | | |
| |
| Street Address: City, State, | | |
| Zip Code: | | |
| |
| Telephone Number: | | |
| |
| Date: | | |
2
EXHIBIT B-4
FINAL HOLDINGS REPORT
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| | | | |
In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered |
FINAL HOLDINGS REPORT
This Final Holdings Report is being submitted as required by the Final Order Establishing Notice, Hearing, and Sell-Down Procedures for Trading in Equity Securities and Claims Against the Debtors’ Estates (Docket No. [ ]) (the “Trading Order”). Unless otherwise defined in this Report, capitalized terms and phrases used herein have the meanings given to them in the Trading Order.
1. As of the Pre-Confirmation Notice Record Date, the undersigned is the Beneficial Owner of the following Claims:
| | |
Nature of Claim(s) (e.g., trade claim, rejection
damage claim, bond claim, indemnity claim, etc.) | | Dollar Amount of Claim(s) |
| | |
| | |
| | |
| | |
Total | | |
2. As of the Petition Date, the undersigned’s Protected Amount was $ . The total amount listed in Paragraph 1, above, is $ . The undersigned’s Adjusted Protected Amount is $ , which is equal to the lesser of the two foregoing amounts.
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
3. In accordance with the Trading Order, a copy of this Final Holdings Report was served by the undersigned by e-mail and fax on:
|
| Counsel for the Debtors: |
|
| Gregory O. Lunt |
| LATHAM & WATKINS LLP |
| 355 South Grand Avenue |
| Los Angeles, California 90071-1560 |
| Telephone: (213) 485-1234 |
| Facsimile: (213) 891-8763 |
| E-mail: Gregory.Lunt@lw.com |
| | |
| |
| Name: | | |
| Social Security or Federal Tax | | |
| I.D. No. (optional): | | |
| |
| Signature: | | |
| |
| If by Authorized Agent, Name and | | |
| Title: | | |
| |
| Street Address: City, State, | | |
| Zip Code: | | |
| |
| Telephone Number: | | |
| |
| Date: | | |
2
EXHIBIT B-5
NOTICE OF OBLIGATIONS OF SUBSTANTIAL CLAIMHOLDERS
(“SELL-DOWN NOTICE”)
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| | | | |
In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered |
NOTICE OF (A) CONFIRMATION OF 382(L)(5) PLAN OF
REORGANIZATION, (B) MAXIMUM AMOUNT AND
(C) OBLIGATIONS OF SUBSTANTIAL CLAIMHOLDERS
PLEASE TAKE NOTICE OF THE FOLLOWING:
1. Entry of Order. On [ ], 2009, the United States Bankruptcy Court for the District of Delaware entered the Final Order Establishing Notice, Hearing, and Sell-Down Procedures for Trading in Equity Securities and Claims Against the Debtors’ Estates (Docket No. [ ]) (the “Trading Order”). Unless otherwise defined in this Notice, capitalized terms and phrases used herein have the meanings given to them in the Trading Order.
2. Notice of Confirmation of 382(l)(5) Plan of Reorganization. On [Date], the United States Bankruptcy Court for the District of Delaware confirmed the Plan. The Plan is a 382(l)(5) Plan as defined in the Trading Order.
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
3. Maximum Amount of Claims that May Be Held by a Substantial Claimholder. In accordance with Section 7 of the Trading Order, the Debtor has calculated the Maximum Amount of Claims that may be held by [name of Substantial Claimholder], as of the Effective Date of the 382(l)(5) Plan, to be $[ ]. Such Amount was determined as follows:
[Insert Calculation]
4. Sell Down Amount. The total amount of Claims that all Substantial Claimholders must sell (to parties other than Substantial Claimholders or parties that would become Substantial Claimholders by reason of such sales to them) to effectuate the 382(l)(5) Plan is $[ ].
[Insert Calculation]
5. Objection to Maximum Amount or Sell Down Amount. A Substantial Claimholder who has complied with the notice procedures contained in Section 7 of the Trading Order may, no later than 10 calendar daysfrom service of this Sell-Down Notice, object to the manner in which the Maximum Amount or the Sell-Down Amount specified in this Sell-Down Notice were calculated or on the grounds that this Sell-Down Notice contains a mathematical error that would result in requiring the Substantial Claimholder to reduce its ownership below the Maximum Amount or the Adjusted Protected Amount for such Substantial Claimholder. Any such objection must be e-mailed and faxed to counsel to the Debtors at the e-mail address and fax number identified on the attached Annex 1. In connection with any such objection, the Substantial Claimholder shall disclose its holdings to counsel to the Debtors as of the time of the filing of the objection and as of the time of any hearing on such objection. The Debtors may serve a new Sell-Down Notice by overnight delivery service within the United States correcting such errors; any Substantial Claimholder required to sell additional Claims as a result of such correction shall have 20 calendar daysfrom service of any new Sell-Down Notice to effect the additional Sell-Down.
2
6. Obligations of Substantial Claimholders. As ordered and directed in the Trading Order, prior to the Effective Date, each Substantial Claimholder shall sell an amount of Claims equal to its share of the Sell-Down Amount or such other amount necessary so that no Substantial Claimholder shall, as of the Effective Date, hold Claims in excess of the Maximum Amount for such claimholder (the “Sell-Down”). Each Substantial Claimholder shall sell or otherwise transfer its Claims subject to the Sell-Down to unrelated persons or entities;provided further that the Substantial Claimholder shall not have a reasonable basis to believe that such persons or entities, would own, immediately after the contemplated consummation of such transfer, an amount of Claims in excess of the Maximum Amount for such claimholder.
7. Notice of Compliance. A Substantial Claimholder subject to the Sell-Down shall, before the Effective Date and as a condition to receiving Affected Securities, e-mail and fax to counsel to the Debtors at the e-mail address and fax number identified on the attached Annex 1, a written statement in the form attached hereto as Annex 1 that such Substantial Claimholder has complied with the terms and conditions set forth in this Notice and Section 7 of the Trading Order and that such Substantial Claimholder does not hold Claims, as of the Effective Date, in an amount in excess of the Maximum Amount.
| | | | | | | | |
| | | | |
| Dated: | | | | | | | | BY ORDER OF THE COURT |
| Wilmington, Delaware | | | | | | |
3
ANNEX 1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| | | | |
In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered |
NOTICE OF COMPLIANCE
This Notice of Compliance is being submitted as required by the Final Order Establishing Notice, Hearing, and Sell-Down Procedures for Trading in Equity Securities and Claims Against the Debtors’ Estates (Docket No. [_]) (the “Trading Order”). Unless otherwise defined in this Notice, capitalized terms and phrases used herein have the meanings given to them in the Trading Order.
1. The undersigned has complied in full with the Sell-Down Procedures set forth in Section 7 of the Trading Order and does not hold Claims, as of the Effective Date, in an amount in excess of the greater of (a) $ , the Maximum Amount, or (b) $ , the Adjusted Protected Amount (if any).
2. In accordance with the Trading Order, the undersigned served a copy of this Notice on counsel for the Debtors at the e-mail address and fax number identified below.
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
3. Service Information:
|
| Counsel for the Debtors |
|
| Gregory O. Lunt |
| LATHAM & WATKINS LLP |
| 355 South Grand Avenue |
| Los Angeles, California 90071-1560 |
| Telephone: (213) 485-1234 |
| Facsimile: (213) 891-8763 |
| E-mail: Gregory.Lunt@lw.com |
| | |
| |
| Name: | | |
| Social Security or Federal Tax | | |
| I.D. No. (optional): | | |
| |
| Signature: | | |
| |
| If by Authorized Agent, Name and | | |
| Title: | | |
| |
| Street Address: City, State, | | |
| Zip Code: | | |
| |
| Telephone Number: | | |
| |
| Date: | | |
2
EXHIBIT B-6
NOTICE OF COMPLIANCE
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| | | | |
In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered |
NOTICE OF COMPLIANCE
This Notice of Compliance is being submitted as required by the Final Order Establishing Notice, Hearing, and Sell-Down Procedures for Trading in Equity Securities and Claims Against the Debtors’ Estates (Docket No. [ ]) (the “Trading Order”). Unless otherwise defined in this Notice, capitalized terms and phrases used herein have the meanings given to them in the Trading Order.
1. The undersigned has complied in full with the Sell-Down Procedures set forth in Section 7 of the Trading Order and does not hold Claims, as of the Effective Date, in an amount in excess of the greater of (a) $ , the Maximum Amount, or (b) $ , the Adjusted Protected Amount (if any).
2. In accordance with the Trading Order, the undersigned served a copy of this Notice on counsel for the Debtors at the e-mail address and fax number identified below.
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
3. Service Information:
|
| Counsel for the Debtors |
|
| Gregory O. Lunt |
| LATHAM & WATKINS LLP |
| 355 South Grand Avenue |
| Los Angeles, California 90071-1560 |
| Telephone: (213) 485-1234 |
| Facsimile: (213) 891-8763 |
| E-mail: Gregory.Lunt@lw.com |
| | |
| |
| Name: | | |
| Social Security or Federal Tax | | |
| I.D. No. (optional): | | |
| |
| Signature: | | |
| |
| If by Authorized Agent, Name and | | |
| Title: | | |
| |
| Street Address: City, State, | | |
| Zip Code: | | |
| |
| Telephone Number: | | |
| |
| Date: | | |
2
EXHIBIT C
NOTICE OF ORDER
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
| | | | |
In re: SPANSION INC.,et al.,1 Debtors. | | | | Chapter 11 Case No. 09-10690 (KJC) Jointly Administered |
NOTICE OF FINAL ORDER UNDER 11 U.S.C. §§ 105, 362 AND 541 AND
FED. R. BANKR. P. 3001 AND 3002 ESTABLISHING NOTICE, HEARING,
AND SELL-DOWN PROCEDURES FOR TRADING IN EQUITY SECURITIES
AND CLAIMS AGAINST THE DEBTORS’ ESTATES
TO ALL PERSONS OR ENTITIES WITH CLAIMS AGAINST OR EQUITY INTERESTS IN THE DEBTORS:
PLEASE TAKE NOTICE that on March 1, 2009 (the “Petition Date”), the above-captioned debtors and debtors-in-possession (the “Debtors”), commenced cases under chapter 11 of title 11 of the United States Code 11 U.S.C. §§ 101et seq., as amended (the “Bankruptcy Code”). Subject to certain exceptions, section 362 of the Bankruptcy Code operates as a stay of any act to obtain possession of property of the Debtors’ estates or of property from the Debtors’ estates or to exercise control over property of the Debtors’ estates.
PLEASE TAKE FURTHER NOTICE that on the Petition Date, the Debtors filed a motion seeking entry of an order pursuant to sections 105, 362, and 541 of the Bankruptcy Code establishing notice, hearing, and sell-down procedures for trading in equity securities and claims against the Debtors’ estates (the “Motion”).
1 | The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: Spansion Inc., a Delaware corporation (8239); Spansion Technology LLC, a Delaware limited liability company (3982); Spansion LLC, a Delaware limited liability company (0482); Cerium Laboratories LLC, a Delaware limited liability company (0482), and Spansion International, Inc., a Delaware corporation (7542). The mailing address for each Debtor is 915 DeGuigne Dr., Sunnyvale, CA 94085. |
PLEASE TAKE FURTHER NOTICE THAT on [ ], 2009, the United States Bankruptcy Court for the District of Delaware (the “Court”) entered an order approving the procedures set forth below in order to preserve the Debtors’ net operating losses and certain other tax attributes (“Tax Attributes”) pursuant to sections 105, 362, and 541 of the Bankruptcy Code (the “Order”).
PLEASE TAKE FURTHER NOTICE that, pursuant to the Order, the following procedures shall apply to holding and trading in equity securities of Spansion Inc. (“Spansion”):
1. Any purchase, sale, or other transfer of Claims against the Debtors or equity securities in Spansion in violation of the procedures set forth herein (including the notice requirements set forth in Sections 2 (a) and 3 (a) and (c) below) shall be null and voidab initio as an act in violation of the automatic stay under U.S.C. §§ 362 and 105(a) of the Bankruptcy Code.
2. The following procedures shall apply to trading in equity securities of Spansion:
a. Any person or entity (as defined in Treasury Regulations Section 1.382-3(a) for purposes of this Section 2) who currently is or becomes a Substantial Shareholder (as defined in Paragraph (e) below) shall file with this Court, and serve on counsel to the Debtors, a notice of such status, in the form attached hereto asExhibit A-1, on or before the later of (A) twenty (20) calendar days after the effective date of the notice of entry of this Order or (B) ten (10) calendar days after becoming a Substantial Shareholder.
b. At least thirty (30) calendar days prior to effectuating any transfer of equity securities (including Options to acquire such securities, as defined below) that would result in an increase in the amount of Spansion Stock (as defined below) beneficially owned by a Substantial Shareholder or would result in a person or entity becoming a Substantial Shareholder, such Substantial Shareholder shall file with this Court, and serve on counsel to the Debtors, advance written notice, in the form attached hereto asExhibit A-2, of the intended transfer of equity securities.
c. At least thirty (30) calendar days prior to effectuating any transfer of equity securities (including Options to acquire such securities) that would result in a decrease in the amount of Spansion Stock beneficially owned by a Substantial Shareholder or would result in a person or entity ceasing to be a Substantial Shareholder, such Substantial Shareholder shall
file with this Court, and serve on counsel to the Debtors, advance written notice, in the form attached hereto asExhibit A-3, of the intended transfer of equity securities (the notices required to be filed and served under Paragraph (b) and this Paragraph (c), each a “Notice of Proposed Transfer”).
d. The Debtors shall have thirty (30) calendar days after receipt of a Notice of Proposed Transfer to file with this Court and serve on such Substantial Shareholder an objection to any proposed transfer of equity securities described in the Notice of Proposed Transfer on the grounds that such transfer may adversely affect the Debtors’ ability to utilize their Tax Attributes. If the Debtors file an objection, such transaction will not be effective unless approved by a final and nonappealable order of this Court. If the Debtors do not object within such 30-day period, such transaction may proceed solely as set forth in the Notice of Proposed Transfer. Further transactions within the scope of this Paragraph must be the subject of additional notices as set forth herein, with an additional 30-day waiting period.
e. For purposes of this Order, (A) a “Substantial Shareholder” is any person or entity which beneficially owns at least 7,673,713 shares (representing approximately 4.75% of all issued and outstanding shares) of the common stock of Spansion (“Spansion Stock”), and (B) “beneficial ownership” (or any variation thereof of Spansion Stock and Options to acquire Spansion Stock) shall be determined in accordance with applicable rules under Section 382 of the Internal Revenue Code of 1986, as amended (the “IRC”), Treasury Regulations promulgated thereunder and rulings issued by the Internal Revenue Service, and thus, to the extent provided therein, from time to time shall include, without limitation, (i) direct and indirect ownership (e.g., a holding company would be considered to beneficially own all shares owned or acquired by its subsidiaries), (ii) ownership by such holder’s family members and persons acting in concert with such holder to make a coordinated acquisition of stock, and (iii) an Option to acquire Spansion Stock. 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. For the avoidance of doubt, by operation of the definition of beneficial ownership in clause (B) of this Paragraph, an owner of an Option to acquire Spansion Stock may be treated as the owner of such Spansion Stock.
3. The following procedures shall apply to trading in Claims against the Debtors:2
a.Notice of 382(l)(5) Plan and 382(l)(5) Disclosure Statement. The Debtors shall, upon filing a disclosure statement with respect to a 382(l)(5) Plan (a “382(l)(5) Disclosure Statement”), simultaneously file with the Court and further publish and serve in the manner specified in Paragraph (j) below a separate notice (“Disclosure Statement Notice”) in substantially the form attached asExhibit B-1. The Disclosure Statement Notice shall (i) state that a 382(l)(5) Plan has been filed with the Court, (ii) disclose the most current
2 | The capitalized terms used in this Section 3 shall have the definitions set forth in Paragraph (m) below. |
estimate of the Threshold Amount and (iii) set a record date, which shall be 5:00 p.m., Eastern Time, on the date set by the Court that is ten (10) business days prior to the date set for the hearing on the 382(l)(5) Disclosure Statement (the “Disclosure Statement Notice Record Date”). Each Beneficial Claimholder who holds more than the Threshold Amount (each, a “Substantial Claimholder”) as of either the Petition Date or the Disclosure Statement Notice Record Date is hereby ordered and directed to email and fax to counsel to the Debtors a report in the form attached hereto asExhibit B-2 (the “Initial Holdings Report”) identifying: (I) the nature and amount of Claims held by such Beneficial Claimholder as of the Disclosure Statement Notice Record Date (the “Initial Holdings”); and (II) its Protected Amount. The Initial Holdings Report shall be subject to the confidentiality provisions set forth in Paragraph (i) below and shall be served in accordance with the preceding sentence no later than three (3) business days prior to the first date set by the Court for the hearing to consider the 382(l)(5) Disclosure Statement to the email address and fax number identified on the attachedExhibit B-2. In the event that the hearing to consider the 382(l)(5) Disclosure Statement is adjourned or continued, Substantial Claimholders shall not be required to amend or update their Initial Holdings Reports unless, in the event of an adjournment or continuance, the Debtors establish a new Disclosure Statement Notice Record Date and provide notice thereof, in which case the process above will re-commence.
b.382(l)(5) Disclosure Statement. The 382(l)(5) Disclosure Statement shall contain information adequate to permit a party entitled to vote on a 382(l)(5) Plan to determine whether a 382(l)(5) Plan provides greater value than possible alternatives and shall include, without limitation, the following disclosures: (i) the net present value of the projected tax savings of the 382(l)(5) Plan as compared to a 382(l)(6) Plan based on the financial projections included in the 382(l)(5) Disclosure Statement; (ii) a description of the restrictions on trading with respect to the common stock and any other securities of the reorganized Debtors (the “Affected Securities”) that will be required or imposed under the 382(l)(5) Plan after the Effective Date to preserve such tax savings; (iii) the projected value of the Affected Securities in the aggregate; and (iv) the projected tax savings of the 382(l)(5) Plan as a percentage of the aggregate value of the Affected Securities. In addition, the Debtors shall promptly (and in any event before the end of the hearing on the 382(l)(5) Disclosure Statement) disclose on a separate filing with the SEC on Form 8-K (i) the aggregate amount of Initial Holdings (the “Total Initial Holdings”) and (ii) the estimated maximum amount and percentage of the Total Initial Holdings in each class that may be required to be sold down as provided below. Such disclosures shall be included in the final 382(l)(5) Disclosure Statement. The foregoing does not limit in any way the right of any party in interest to object to the adequacy of the information in the 382(l)(5) Disclosure Statement.
c.Notice of Claimholder Acceptance of 382(l)(5) Plan. The Debtors shall file with the Court and further publish and serve in the manner specified in Paragraph (j) below, not less than ten (10) days prior to the commencement of the Confirmation Hearing, a notice (the “Pre-Confirmation Notice”) substantially in the form attached hereto asExhibit B-3, setting forth: (i) a record date, which shall be 5:00 p.m., Eastern Time, on a date that is ten (10) days prior to the first date set by the Court for the Confirmation Hearing (the “Pre-Confirmation Notice Record Date”); and (ii) identifying the most current estimate of the Threshold Amount (determined as of the Pre-Confirmation Notice Record Date). Each
Beneficial Claimholder who is a Substantial Claimholder (as determined by the Threshold Amount identified in the Pre-Confirmation Notice) as of the Pre-Confirmation Notice Record Date is hereby ordered and directed to deliver, via e-mail and fax, a report in the form attached hereto asExhibit B-4 (the “Final Holdings Report”) identifying the nature and amount of Claims held by such Beneficial Claimholder as of the Pre-Confirmation Notice Record Date (the “Final Holdings”). The Final Holdings Report shall be subject to the confidentiality provisions set forth in Paragraph (i) below and shall be served on counsel to the Debtors no later than the date that is three (3) business days prior to the first date set by the Court for the Confirmation Hearing to the e-mail address and fax number identified on the attachedExhibit B-4. In the event that the Confirmation Hearing is adjourned or continued, Substantial Claimholders shall not be required to amend or update their Final Holdings Reports unless, in the event of an adjournment or continuance, the Debtors establish a new Pre-Confirmation Notice Record Date and provides notice thereof, in which case the process above will re-commence.
d.Sell-Down Notice. If the Court confirms the 382(l)(5) Plan, the Debtors shall serve a notice substantially in the form attached hereto asExhibit B-5 (the “Sell-Down Notice”) by overnight delivery service within the United States (or by expedited delivery outside the United States) upon each Substantial Claimholder (as of the Pre-Confirmation Notice Record Date) within five (5) business days after the entry of the order confirming the 382(l)(5) Plan. The Sell-Down Notice shall (i) state that the 382(l)(5) Plan has been confirmed; (ii) contain the results of the calculations described in Paragraph (f)(1) below, including the calculation of the Maximum Amount and the information used to perform all such calculations to the extent that the Debtors are not required by this Order or other confidentiality restrictions to keep such information confidential; and (iii) provide notice that, pursuant to this Order, each Substantial Claimholder is ordered and directed to comply with the Sell-Down Procedures (set forth in Paragraph (f) below) before the Effective Date.
e.Effective Date. The Effective Date of any 382(l)(5) Plan shall be the earlier of thirty (30) calendar days after entry of the order confirming the plan or the date established by the Bankruptcy Court, to be no earlier than eleven (11) days after entry of the confirmation order.
f.Sell-Down Procedures. If and only to the extent that a 382(l)(5) Plan is confirmed by this Court then, to the extent necessary to effectuate the 382(l)(5) Plan, each Beneficial Claimholder who is, as of the Pre-Confirmation Notice Record Date, a Substantial Claimholder (other than a Permitted Substantial Claimholder or a Substantial Claimholder whose Claims shall not be required to be sold as part of the Sell-Down pursuant to Paragraph (f)(2) below), is hereby ordered and directed to comply with the following sell-down procedures (the “Sell-Down Procedures”):
(1)The Maximum Amount. The Debtors shall calculate the maximum amount of Claims that may be held, as of the Effective Date of the 382(l)(5) Plan, by a Substantial Claimholder that was a Substantial Claimholder as of the Pre-Confirmation Notice Record Date (the “Maximum Amount”) as follows:
a. Based upon the information provided by the Substantial Claimholders in the Final Holdings Reports, the Debtors shall calculate the total amount of Claims that all Substantial Claimholders must sell to effectuate the 382(l)(5) Plan (the “Sell Down Amount”) applying the following rules and assumptions: (i) all Incremental Holdings will be required to be sold prior to any requirement to sell down Claims held by the Substantial Claimholders prior to the Disclosure Statement Notice Record Date, (ii) the Debtors will take into account the portion of Claims held by Substantial Claimholders that the Debtors reasonably conclude (based on evidence furnished by the Substantial Claimholders or their representatives) have not existed since a date that was 18 months before the Petition Date and that are not “ordinary course” Claims, within the meaning of Treasury Regulations Section 1.382 9(d)(2)(iv), and (iii) all Beneficial Claimholders with Protected Amounts will be deemed to own an amount of Claims equal to their Adjusted Protected Amount.
b. If the Sell-Down Amount is less than or equal to the Total Incremental Holdings, the Debtors shall calculate the amount of each Substantial Claimholder’spro rata share of the Sell-Down Amount (i.e., the Sell-Down Amount multiplied by a fraction, the numerator of which is the Substantial Claimholder’s Incremental Holdings and the denominator of which is the Total Incremental Holdings);
c. If the Sell-Down Amount exceeds Total Incremental Holdings, the Debtors shall calculate for each Substantial Claimholder the amount of such Substantial Claimholder’spro rata share of such excess (i.e., the total amount of such excess multiplied by a fraction, the numerator of which is such Substantial Claimholder’s Initial Holdings minus the Threshold Amount and the denominator of which is the Total Initial Holdings in excess of the Threshold Amount of all Substantial Claimholders) and add to that the amount of such Substantial Claimholder’s Incremental Holdings; and
d. For each Substantial Claimholder, the Debtors shall subtract from the total Claims held by such Substantial Claimholder (as reported in the Final Holdings Report) such Substantial Claimholder’s share of the Sell-Down Amount calculated in accordance with clauses (b) or (c) above, as applicable. The difference shall be the Maximum Amount.
(2)Sell-Down. Prior to the Effective Date, each Substantial Claimholder shall sell an amount of Claims equal to its share of the Sell-Down Amount or such other amount necessary so that no Substantial Claimholder shall, as of the Effective Date, hold Claims in excess of the Maximum Amount for such claimholder (the “Sell-Down”); provided, however, that notwithstanding anything to the contrary in this Order, no Beneficial Claimholder shall be required to sell any Claims to the extent such sale would result in such Beneficial Claimholder having Beneficial Ownership of an aggregate amount of Claims that is less than such Beneficial
Claimholder’s Adjusted Protected Amount as shown in the Final Holdings Report, and, for the avoidance of doubt, no Beneficial Claimholder shall be prevented from acquiring Claims, prior to the latest Pre-Confirmation Notice Record Date, to the extent that such Beneficial Claimholder holds less than its Protected Amount. Each Substantial Claimholder shall sell or otherwise transfer its Claims subject to the Sell-Down to unrelated Entities; provided further that the Substantial Claimholder shall not have a reasonable basis to believe that such Entity would own, immediately after the contemplated consummation of such transfer, an amount of Claims in excess of the Maximum Amount for such Claimholder.
(3)Objections to Sell-Down Notices. A Substantial Claimholder who has complied with the notice procedures contained in this Section 7 may, no later than ten (10) calendar days from service of the Sell-Down Notice, object to the manner in which the Maximum Amount or the Sell-Down Amount specified in a Sell-Down Notice were calculated or on the grounds that such notice contained a mathematical error that would result in requiring the Substantial Claimholder to reduce its ownership below the Maximum Amount or the Adjusted Protected Amount for such Substantial Claimholder. In connection with any such objection, the Substantial Claimholder shall disclose its holdings to counsel to the Debtors as of the time of the filing of the objection and as of the time of any hearing on such objection. The Debtors may serve a new Sell-Down Notice by overnight delivery service correcting such errors; any Substantial Claimholder required to sell additional Claims as a result of such correction shall have twenty (20) calendar days from service of any new Sell-Down Notice to effect the additional Sell-Down.
(4)Notice of Compliance. A Substantial Claimholder subject to the Sell-Down shall, before the Effective Date and as a condition to receiving Affected Securities, deliver to counsel to the Debtors, a written statement substantially in the form ofExhibit B-6 hereto that such Substantial Claimholder has complied with the terms and conditions set forth in Paragraph (f)(2) and that such Substantial Claimholder will not hold Claims, as of the Effective Date, in an amount in excess of the greater of the Maximum Amount or the Adjusted Protected Amount (if any) for such Substantial Claimholder (the “Notice of Compliance”). Any Substantial Claimholder who fails to comply with this provision shall not receive Affected Securities with respect to any Claims in excess of the greater of such claimholder’s Adjusted Protected Amount or the then current Threshold Amount.
(5)Applicable Authority. For the avoidance of doubt, Section 382 of the IRC, the Treasury Regulations promulgated thereunder and all relevant Internal Revenue Service 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. For these
purposes and except as specifically provided with respect to Claims ownership in the Treasury Regulations, the rules and authority identified in the preceding sentence shall be treated as if they applied to Claims in the same manner as they apply to stock.
(6)Subsequent Substantial Claimholders. To the extent that any Entity becomes a Substantial Claimholder after the date in which Final Holdings Reports are due, the Court shall retain jurisdiction so that the Debtors may seek equitable relief similar to the relief described in this Order in order to protect the Debtors’ ability to apply Section 382(l)(5) of the IRC.
g.Claimholder Participation. To permit reliance by the Debtors on Treasury Regulation Section 1.382-9(d)(3), any Beneficial Claimholder that participates in formulating any chapter 11 plan of reorganization of or on behalf of the Debtors (which shall include, without limitation, making any suggestions or proposals to the Debtors or their advisors with regard to such a plan), shall not, and shall not be asked to, 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 the Debtors that any Claims in which such Beneficial Claimholder has a beneficial ownership are Newly Traded Claims (the “Participation Restriction”). For this purpose, the Debtors acknowledge and agree that the following activities shall not, where in pursuing such activities the relevant Beneficial Claimholder does not disclose (or otherwise make evident) to the Debtors that such Beneficial Claimholder has beneficial ownership of Newly Traded Claims, constitute a violation of the Participation Restriction: (a) filing an objection to a proposed disclosure statement or to confirmation of a proposed plan of reorganization; (b) negotiating the terms of, or voting to accept or reject, a proposed plan of reorganization; (c) reviewing or commenting on a proposed business plan; (d) membership on the Creditors’ Committee or other official orad hoc committee; (e) providing information other than with respect to its Claims to the Debtors on a confidential basis; or (f) taking any action required by this Order. Any claimholder found by the Court to have violated the Participation Restriction, and who, as a result, would prevent the Debtors from implementing a 382(l)(5) Plan, shall be required to dispose of Newly Traded Claims of which such Entity has Beneficial Ownership in the manner specified in Paragraph (f)(2) above and shall be subject to the Forfeiture Remedy described in Paragraph (h) below.
h.Sanctions for Noncompliance. If any Substantial Claimholder fails to comply with the Sell-Down applicable to it, such Substantial Claimholder shall not be entitled to receive Beneficial Ownership of any Affected Securities in connection with the implementation of the 382(l)(5) Plan with respect to any Claims required to be sold pursuant to a Sell-Down Notice. Any Substantial Claimholder that violates this Order shall be required to forfeit the Affected Securities (the “Forfeiture Remedy”). The Debtors may seek to enforce the Forfeiture Remedy, on notice to the Entity upon whom such sanctions are sought to be imposed, on an expedited basis. The Debtors also reserve the right to seek from this Court, on an expedited basis, other sanctions or damages for a willful violation of this Order, on notice to the Entity upon whom such sanctions are sought to be imposed, including, but not limited to damages for loss of any tax benefits caused by such violation and any injunction or other relief
necessary or appropriate to remedy such violation. Any distribution of Affected Securities pursuant to the implementation of the 382(l)(5) Plan that is precluded by an order enforcing the Forfeiture Remedy (the “Forfeited Equity”) shall be voidab initio. Any Entity that receives Forfeited Equity shall, immediately upon becoming aware of such fact, return the Forfeited Equity to the reorganized Debtors or, if all of the shares properly issued to such Entity and all or any portion of such Forfeited Equity have been sold prior to the time such Entity becomes aware of such fact, such Entity shall return to the reorganized Debtors (a) any Forfeited Equity still held by such Entity and (b) the proceeds attributable to the sale of Forfeited Equity. Any Entity that receives Forfeited Equity and fails to comply with the preceding sentence shall be subject to such additional sanctions as the Court may determine. The reorganized Debtors shall distribute any Forfeited Equity in accordance with the 382(l)(5) Plan.
i.Confidentiality. The Initial Holdings Report, the Final Holdings Report, the Sell-Down Notices and the Notice of Compliance, and the information contained therein, shall be treated as confidential information and shall be available only to the Debtors and counsel and financial or tax advisors to the Debtors. Each recipient of any Initial Holdings Report, Final Holdings Report, Sell-Down Notice and the Notice of Compliance (or similar notices provided under the Order) shall keep the information contained therein confidential and shall not disclose such information to any Entity (including, without limitation, any member of the Creditors’ Committee) unless required to produce it in a legal proceeding or subject to further Court order.
j.Notice. Any notices required to be published under Section 7 of this Order shall be published inThe Wall Street Journal andThe Financial Times (U.S. edition). All notices required to be served shall be served on the following parties via electronic mail if an e-mail address is known, or by overnight mail if an e-mail address is not known: (a) the United States Trustee; (b) counsel to the administrative agent for the Debtors’ prepetition lenders; (c) counsel to thead-hoc committee of holders of Spansion LLC’s Senior Secured Floating Rate Notes due 2013, Robert J. Stark, Brown Rudnick LLP, Seven Times Square, New York, NY 10036; (d) the Trustee for Spansion LLC’s Senior Secured Floating Rate Notes due 2013; (e) the Trustee for Spansion LLC’s 2.25% Exchangeable Senior Subordinated Debentures Due 2016; (f) the Trustee for Spansion LLC’s 11.25% Senior Notes Due 2016; (g) the administrative agent for the UBS Bank USA line of credit; (h) the creditors listed on the Debtors’ consolidated list of 65 largest unsecured creditors, as filed with the chapter 11 petitions; (i) the Securities and Exchange Commission; (j) the Internal Revenue Service; (k) local taxing authorities; (l) counsel to the administrative agent for the Debtors’ debtor-in-possession financing, if any; (m) any statutory Committee appointed under Section 1102 of the Bankruptcy Code; and (n) the transfer agents for any Spansion Stock.
k. The requirements set forth in this Order are in addition to the requirements of Bankruptcy Rule 3001(e) and applicable securities, corporate and other laws, and do not excuse compliance therewith.
l. The Court shall retain jurisdiction to interpret, enforce, aid in the enforcement of and resolve any disputes or matters related to any of the provisions of this Order.
m. For purposes of Section 3, the following definitions shall apply:
i) “382(l)(5) Disclosure Statement” means a disclosure statement filed with the Court relating to a 382(l)(5) Plan.
ii) “382(l)(5) Plan” means a plan of reorganization for the Debtors under chapter 11 of the Bankruptcy Code that provides for or contemplates the use of net operating loss carryforwards and other tax attributes under Section 382(l)(5) of the IRC and that restricts transfers of Beneficial Ownership of Affected Securities for not less than two years after the reorganization in order to avoid an “ownership change,” as such term is defined in Section 382 and the Treasury Regulations promulgated thereunder.
iii) “382(l)(6) Plan” means a plan of reorganization for the Debtors under chapter 11 of the Bankruptcy Code that provides for or contemplates the use of net operating loss carryforwards and other tax attributes under, and subject to the limitations of, Section 382(l)(6) of the IRC.
iv) “Adjusted Protected Amount” means the lesser of (a) the Protected Amount or (b) the Claims held by such Beneficial Claimholder as of the latest Pre-Confirmation Notice Record Date (as declared in the applicable Final Holdings Report for such Beneficial Claimholder).
v) “Applicable Percentage” means, if only one class of Affected Securities is to be issued pursuant to the terms of a 382(l)(5) Plan, 4.75% of the number of such shares that the Debtors reasonably estimate will be issued at the effective date of such 382(l)(5) Plan. If more than one class of Affected Securities is to be distributed pursuant to the terms of a 382(l)(5) Plan, the Applicable Percentage shall be determined by the Debtors in their 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(l)(5) Disclosure Statement, and shall be expressed in a manner that makes clear how many shares of common equity would constitute the Applicable Percentage.
vi) “Beneficial Ownership” of Claims shall be determined in accordance with applicable rules under Section 382 of the IRC and regulations promulgated thereunder, as if such rules applied to Claims in the same manner as they apply to equity except to the extent inconsistent with rules and regulations specifically applicable to the ownership of Claims.
vii) “Beneficial Claimholders” means those Entities that have Beneficial Ownership of Claims.
viii) “Claim” shall have the meaning ascribed to that term in Section 101(5) of the Bankruptcy Code and includes, without limitation, a lessor’s right to any current or future payment under or arising out of any lease with respect to which any Debtor is a lessee.
ix) “Confirmation Date” means the date on which the Court enters an order confirming a 382(l)(5) Plan.
x) “Confirmation Hearing” means a hearing held before this Court on the confirmation of the 382(l)(5) Plan pursuant to Section 1129 of the Bankruptcy Code.
xi)“Effective Date” The Effective Date of any 382(l)(5) Plan shall be the earlier of thirty (30) calendar days after entry of the order confirming the plan or the date established by the Bankruptcy Court, to be no earlier than eleven (11) days after entry of the confirmation order.
xii) “Entity” means a person or entity for purposes of the rules under Section 382 of the IRC.
xiii) “Incremental Holdings” means the amount, if any, of Claims identified in each Substantial Claimholders’ Final Holdings Report in excess of the greater of (i) the amount contained in each respective Substantial Claimholder’s Initial Holdings Report and (ii) the Threshold Amount as of the Disclosure Statement Notice Record Date.
xiv) “Newly Traded Claims” means Claims (i) with respect to which an Entity acquired beneficial ownership after the date that was 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 Entity has always had beneficial ownership.
xv) “Permitted Substantial Claimholder” means a Substantial Claimholder whom the Debtors reasonably conclude acquired its Claim in the ordinary course of the Debtors’ trade or business (within the meaning of Treasury Regulations Section 1.382-9(d)(2)(iv)) and has at all times since the creation of such Claim held the Beneficial Ownership in that Claim.
xvi) “Petition Date” means March 1, 2009.
xvii) “Protected Amount” means the amount of Claims of which a Beneficial Claimholder had Beneficial Ownership on the Petition Date, increased by the amount of Claims of which such Beneficial Claimholder acquires 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 that such Beneficial Claimholder sells pursuant to trades entered into before the Petition Date that had not yet closed as of the Petition Date.
xviii) “Substantial Claimholder” means a Beneficial Claimholder who holds more than the Threshold Amount as of the applicable record date and time, as described in Paragraphs (a) and (c) above.
xix) “Threshold Amount” means the amount of Claims that are projected by the Debtors to entitle the Beneficial Claimholder thereof to become the Beneficial Claimholder of the Applicable Percentage of Affected Securities.
xx) “Total Incremental Holdings” means the aggregate amount of all of each Substantial Claimholders’ Incremental Holdings.
PLEASE TAKE FURTHER NOTICE that, upon the request of any person, counsel to the Debtors, Latham & Watkins LLP, 355 South Grand Avenue, Los Angeles, California 90071-1560, Attn: Gregory O. Lunt, will provide a form of each of the required notices described above.
PLEASE TAKE FURTHER NOTICE that, upon the request of any person, Epiq Bankruptcy Solutions LLC (“Epiq”), shall supply a copy of the Order. Epiq shall supply a copy of the Order at a cost to be paid by the person requesting it at the prevailing fee being charged by Epiq. Epiq shall accommodate document requests during normal business hours, Monday to Friday (excluding recognized holidays).
FAILURE TO FOLLOW THE PROCEDURES SET FORTH IN THIS NOTICE SHALL CONSTITUTE A VIOLATION OF THE AUTOMATIC STAY PRESCRIBED BY SECTION 362 OF THE BANKRUPTCY CODE.
ANY PROHIBITED PURCHASE, SALE, TRADE, OR OTHER TRANSFER OF CLAIMS AGAINST THE DEBTORS OR EQUITY SECURITIES IN SPANSION IN VIOLATION OF THE ORDER SHALL BE NULL AND VOIDAB INITIO AND MAY BE PUNISHED BY CONTEMPT OR OTHER SANCTIONS IMPOSED BY THE BANKRUPTCY COURT.
PLEASE TAKE FURTHER NOTICE that the requirements set forth in this Notice are in addition to the requirements of Rule 3001(e) of the Federal Rules of Bankruptcy Procedure and applicable securities, corporate, and other laws, and do not excuse compliance therewith.
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| Dated: [ ], 2009 | | | | BY ORDER OF THE COURT |
| Wilmington, Delaware | | | | |
