ATP Oil Claim and Equity Trading Motion

Case 12-36187 Document 19 Filed in TXSB on 08/17/12Docket #0019 38 Filed: 8/17/2012 Page 1 of Date
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION In re: ATP Oil & Gas Corporation, Debtor. Chapter 11
Case No.: 12-____________
DEBTORS EMERGENCY MOTION FOR THE ENTRY OF INTERIM AND FINAL ORDERS (1) ESTABLISHING PROCEDURES FOR TRANSFERS OF EQUITY SECURITIES; (2) ESTABLISHING AN EFFECTIVE DATE FOR NOTICE AND SELLDOWN PROCEDURES FOR TRANSFERS OF CLAIMS AGAINST THE DEBTORS ESTATE; AND (3) GRANTING RELATED RELIEF NOTICE UNDER BLR 9013-1(b) AND 9013-1(i) THIS MOTION SEEKS AN ORDER THAT MAY ADVERSELY AFFECT YOU. IF YOU OPPOSE THE MOTION, YOU SHOULD IMMEDIATELY CONTACT THE MOVING PARTY TO RESOLVE THE DISPUTE. IF YOU AND THE MOVING PARTY CANNOT AGREE, YOU MUST FILE A RESPONSE AND SEND A COPY TO THE MOVING PARTY. YOU MUST FILE AND SERVE YOUR RESPONSE WITHIN 21 DAYS OF THE DATE THIS WAS SERVED ON YOU. YOUR RESPONSE MUST STATE WHY THE MOTION SHOULD NOT BE GRANTED. IF YOU DO NOT FILE A TIMELY RESPONSE, THE RELIEF MAY BE GRANTED WITHOUT FURTHER NOTICE TO YOU. IF YOU OPPOSE THE MOTION AND HAVE NOT REACHED AN AGREEMENT, YOU MUST ATTEND THE HEARING. UNLESS THE PARTIES AGREE OTHERWISE, THE COURT MAY CONSIDER EVIDENCE AT THE HEARING AND MAY DECIDE THE MOTION AT THE HEARING. EMERGENCY RELIEF HAS BEEN REQUESTED. IF THE COURT CONSIDERS THE MOTION ON AN EMERGENCY BASIS, THEN YOU WILL HAVE LESS THAN 21 DAYS TO ANSWER. IF YOU OBJECT TO THE REQUESTED RELIEF OR IF YOU BELIEVE THAT THE EMERGENCY CONSIDERATION IS NOT WARRANTED, YOU SHOULD FILE AN IMMEDIATE RESPONSE. REPRESENTED PARTIES SHOULD ACT THROUGH THEIR ATTORNEY. ATP Oil & Gas Corporation (ATP or the Debtor) submits this Emergency Motion for the Entry of Interim and Final Orders (1) Establishing Procedures For Transfers of Equity
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Case 12-36187 Document 19 Filed in TXSB on 08/17/12 Page 2 of 38
Securities; (2) Establishing Effective Date for Notice and Sell-Down Procedures for Transfers of Claims Against the Debtors Estate and (3) Granting Related Relief (the Motion).1 In support of its Motion, the Debtor respectfully states as follows: I. 1. JURISDICTION AND VENUE
This Court has jurisdiction over this Motion pursuant to 28 U.S.C. 157 and
1334. Venue of the Debtors Chapter 11 case in this district is proper pursuant to 28 U.S.C. 1408 and 1409. This is a core proceeding pursuant to 28 U.S.C. 157(b). The statutory predicates for the relief sought hereby are Sections 362 and 541 of title 11, United States Code (the Bankruptcy Code), and Rules 3002 and 9014 of the Federal Rules of Bankruptcy Procedure. II. 2. PROCEDURAL STATUS
On the date hereof (the Petition Date), the Debtor filed a voluntary petition for
relief pursuant to Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Texas, Houston Division (the Bankruptcy Court). 3. The Debtor continues to operate its business as a debtor-in-possession pursuant to
Sections 1107(a) and 1108 of the Bankruptcy Code. The U.S. Trustee has not yet appointed any official committees in this case, and no request has been made for the appointment of a trustee or an examiner. III. 4. FACTUAL BACKGROUND
ATP is a Texas corporation based in Houston, Texas, which was organized in
1991, and, together with its domestic and foreign subsidiaries, is engaged in the acquisition,
Capitalized terms used but not otherwise defined herein have the meaning attributed to them in the Declaration of Albert L. Reese, Jr. in Support of First Day Motions filed contemporaneously herewith.
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development and production of oil and natural gas properties in the Gulf of Mexico, North Sea, and Eastern Mediterranean Sea. ATP is an experienced development and production company with significant expertise in drilling and operating offshore wells, both in the deepwater and on the shallower Outer Continental Shelf in the Gulf of Mexico. In 2012, ATP, through one of its non-debtor foreign subsidiaries, also commenced drilling operations in the Eastern Mediterranean Sea (offshore Israel). As of December 31, 2011, ATP owned leasehold and other interests in the Gulf of Mexico in 38 offshore blocks and 49 wells, including 23 subsea wells. ATP operates approximately 90% of its wells in the Gulf of Mexico, including all of its deepwater wells. 5. ATPs properties in the Gulf of Mexico contain proved reserves of approximately
75.9 million barrels of crude oil equivalent (MMBoe), as reported at December 31, 2011 and based on ATPs internal reserve report, are estimated at 76.6 MMBoe at June 30, 2012. ATP owns, through wholly or majority owned non-debtor domestic subsidiaries, two floating production facilities in deepwater of the Gulf of Mexico: the ATP Titan, which operates at its Telemark Hub, and the ATP Innovator, which operates at its Gomez Hub. In addition to its reserves in the Gulf of Mexico, ATP also owns, through its wholly-owned foreign subsidiaries, estimated proved reserves of approximately 42.9 MMBoe as reported at December 31, 2011 in the Cheviot and other fields in the North Sea, interests in other valuable oil and gas properties in the North Sea and the recently successfully-drilled Shimshon natural gas well in the Eastern Mediterranean Sea (offshore Israel). ATPs UK subsidiary commissioned the construction of a floating drilling and production platform intended for use at ATP UKs Cheviot field. 6. ATPs development plans and cash flows were dramatically impacted by the
April 20, 2010 blowout of BPs Macondo well and the resulting explosion of the Deepwater
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Horizon in the Gulf of Mexico. Following the U.S. governments subsequent moratorium on further drilling operations. While the moratorium adversely affected all companies involved in deepwater drilling in the Gulf of Mexico, the impact was especially profound on ATP, which is a smaller company than its principal competitors, with a heavier concentration of operations in the deepwater Gulf of Mexico. The moratorium blocked ATPs plans to drill and bring online six wells during 2010 and 2011. ATP had already spent in excess of $1 billion in infrastructure construction and other capital expenditures related to five of these wells, and was denied the anticipated cash flow from these wells. In the years leading up to the moratorium, ATP funded a major component of its capital expenditures with debt that it expected to service with revenues from new wells, and ATP incurred significant interest costs during the moratorium from these debts. The moratorium also required ATP to interrupt two drilling operations that were then in process at significant cost to ATP, without providing for any relief from the resulting costs of ceasing those drilling operations and demobilizing the related drilling equipment and personnel. During the moratorium, ATP made significant capital expenditures to geographically diversify its footprint, including continuing construction on the Octabuoy platform for development in the North Sea and acquiring licenses in three blocks in the Eastern Mediterranean off of Israel. All of these factors contributed to a substantial weakening of ATPs liquidity position during and following the moratorium. The moratorium lasted 10 months, effectively ending on February 28, 2011, when the first deepwater drilling permit was issued. 7. In late 2011 ATP successfully completed and tested two new wells in Green
Canyon Block 300 (the Clipper Wells) in the deepwater Gulf of Mexico. The Clipper Wells production tests substantially exceeded expectations, but those wells are 16 miles from the sales point and require construction of additional pipeline infrastructure in order to begin production.
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ATPs post-moratorium liquidity limitations have prevented it from generating all of the funds it needed to complete the final connection of the Clipper Wells to the sales pipeline; however, this relatively straightforward project remains a source of significant near-term cash flow and considerable potential value to the estate and its constituencies. 8. ATPs management closely monitored the impact of these challenging conditions
and evaluated potential alternatives to try to address its operational and financial issues and improve its liquidity. ATP made diligent effort to identify and solicit partners, joint operators, or investors for its operations, to share the costs of developing reserves with potentially significant value. However, ATP has been unable to timely complete these transactions. 9. One option available to improve ATPs liquidity position was the sale to third
parties of overriding royalty (ORRI) and net profits interests (NPI) in future production from specified wells. ATP relied heavily on such sales to provide immediate funds, selling more than $700 million in ORRIs and NPIs in the last approximately three and a half years. While providing much-needed liquidity, these reduced the cash flows available to ATP from its existing and future production and added further pressure on ATP to bring ton-line he already-drilled Clipper Wells and the additional wells at its Telemark hub. Despite its best efforts, ATPs costs of debt and working capital needs put it in the untenable position of running out of cash before it could complete the Clipper Wells pipeline project and generate the revenues necessary to remedy its liquidity position. 10. As a result, ATP seeks Chapter 11 protection in order to protect and preserve its
assets and to obtain through a DIP loan facility the funds needed to fund working capital requirements and complete the critically important Clipper Wells pipeline project, and certain other specified capital projects that ATP needs to augment its producing reserves and revenues.
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The DIP loan facility also ensures there will be sufficient funds available to pay employees, professionals and other necessary expenses associated with the administration of the Chapter 11 case. This should then enable ATP and its stakeholders to negotiate and implement an orderly restructuring of its capital structure in order to operate profitably and maximize value for the benefit of all of its stakeholders. ATP has determined, in the prudent exercise of its business judgment, that the proposed course of action is the best alternative to ensure that maximum value can be preserved for the benefit of its estate constituencies. 11. As of the Petition Date, ATP has aggregate funded debt outstanding of
approximately $1.9 billion, consisting of: (i) approximately $366 million owed under a first lien term credit facility due in January 2015 evidenced by a Credit Agreement dated as of June 10, 2010 among ATP, as borrower, certain lenders party thereto and Credit Suisse, AG as administrative agent and collateral agent, as amended in February 2011 and March 2012, which amounts are secured by a first lien against approximately 80% of ATPs proved oil and gas reserves in the Gulf of Mexico, a portion of the capital stock of material subsidiaries and certain infrastructure assets, other than the ATP Innovator and the ATP Titan; (ii) approximately $1.5 billion owed to the noteholders under the 11.875% senior second lien bond indenture dated as of April 23, 2010, payable on May 1, 2015, with principal payments due on May 1 and November 1 of each year and secured by a second lien on the collateral securing the first lien debt; and (iii) $35 million under a convertible note and a warrant to purchase 3,923,767 shares of the ATPs common stock issued under a private placement to an institutional investor in June 2012. As of the Petition Date, ATP has outstanding trade and other payables in excess of $170 million and outstanding balances under the ORRIs and NPIs in excess of $489 million.
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IV. 12.
RELIEF REQUESTED
In order to formulate a plan of reorganization that maximize its use of valuable
Tax Attributes (defined below), the Debtor requests entry of interim order establishing: (1) procedures with respect to the ownership, acquisition and disposition of beneficial interests in equity securities in the Debtor; (2) an effective date for notice and sell-down procedures for transfers of claims against the Debtors so that the Debtor has the ability to formulate a plan of reorganization that maximizes the use of their Tax Attributes (the Record Date Order); and (3) entry of a final order granting the requested relief herein on a final basis. V. 13. BASIS FOR RELIEF
The Debtor has incurred, and is currently incurring, significant net operating
losses (NOLs) of approximately $549 million as of the Petition Date, may have substantial net unrealized built-in losses in its assets (the Built-in Losses) and other tax attributes, including business income tax credits (Tax Credits and together with the NOLs and Built-in Losses, the Tax Attributes). Notably, the Debtor may lose the ability to use these Tax Attributes if it experiences an ownership change for federal income tax purposes (as described more fully below). Thus, pursuant to Sections 105(a), 362, and 541 of the Bankruptcy Code, the Debtor requires Court approval of procedures are intended to govern the trading of equity interests in the Debtor during the pendency of the Chapter 11 case and may ultimately need to seek an order (a Sell-Down Order) with respect to claims trading to protect and preserve the potential value of the Tax Attributes.
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14.
Specifically, under federal income tax law,2 transfers of beneficial interests in
equity securities in the Debtor or transfers of claims against the Debtor could adversely affect the Debtors tax attributes if: (a) multiple 5-percent or greater blocks of equity securities are created, or too many shares are added to or sold from such blocks, such that, together with previous transfers by 5-percent shareholders during the preceding three-year period, an ownership change within the meaning of IRC Section 382 is triggered prior to consummation, and outside the context, of a confirmed Chapter 11 plan; or (b) the beneficial ownership of claims against the Debtor that are currently held by Qualified Creditors, as defined for U.S. federal income tax purposes,3 is transferred prior to consummation of a Chapter 11 plan, and those claims (either alone or when accumulated with other claims currently held by non-qualified creditors) would be converted under a Chapter 11 plan into a 5-percent or greater block of the stock of a reorganized Debtor.4 15. The requested procedures (set forth herein) with respect to equity securities are
intended to give Debtors the ability, if necessary, to object to proposed transfers of Debtors stock that could potentially jeopardize the estates use of the Tax Attributes. 16. At this stage, it is too early to determine whether it is necessary for the Debtor to
obtain a Sell-Down Order. The Debtors determination of whether to seek approval of such an order will most likely occur once it has formulated a proposed plan of reorganization. Accordingly, this Motion does not seek entry of a Sell-Down Order. Rather than burden the Court with seeking relief that may not ultimately be needed, this Motion merely seeks entry of the proposed Record Date Order which will provide notice of the Record Date,5 to persons or
2 3 4
Similar adverse consequences may also apply under applicable state income tax laws. See IRC Section 382 and Treasury Regulation 1.382-9.
A qualified creditor is generally one who (a) has held its claim continuously since at least 18 months prior to the petition date or (b) has held a claim incurred in the ordinary course of the debtors business since the claim was incurred. See IRC 382(l)(5)(E); Treas. Reg. 1.382-9(d).
5
The Record Date is the date the proposed Record Date Order is entered.
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entities that trade claims against the Debtor that their claims ultimately may be subject to a SellDown Order effective on the Record Date. For the avoidance of doubt, the only purpose of the Record Date Order is to set and provide notice of the Record Date, which will serve as a placeholder should the Debtor later determine that a Sell-Down Order will be valuable to its estate by allowing them to preserve valuable Tax Attributes. If in fact the Debtor determines that a Sell-Down Order is necessary, the Debtor will file and serve a motion requesting entry of SellDown Order applicable to all claims traded after the Record Date. A. 17. The Significance of the Debtors Valuable Tax Attributes. Pursuant to Sections 39(a), 59(e), l72(b), and 904(c) of the Internal Revenue Code
of 1986 (as amended, the IRC), the Debtor may be able to carry back and then forward the Tax Attributes to offset future taxable income and tax liability so that it may obtain a cash refund and improved liquidity in the future. For instance, the Debtor can carry back its NOLs two taxable years to obtain a cash refund of federal income taxes previously paid in those years and carry forward any remaining NOLs to offset its future taxable income for up to 20 taxable years, thereby potentially recovering cash for the benefit of its estate and potentially reducing its future aggregate tax obligations to the extent NOLs remain available to be carried forward.6 The Debtor may also use the NOLs to offset any taxable income generated by transactions completed during the Chapter 11 case. In addition, the Debtor may use the Built-in Losses and/or Tax Credits to offset its tax liabilities. 18. The Debtor estimates that the NOL carryforwards are approximately $549 million
as of the Petition Date. Thus, the Debtors Tax Attributes may prove to be an extremely valuable
See 26 U.S.C. 172.
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asset to its business and efforts to maximize the recovery of its stakeholders and successfully reorganize. 19. The Debtor could hold assets with Built-in Losses depending on the value of the
Debtor. These losses are economically equivalent to NOL carryovers because a loss recognized on the disposition of an asset may be used to offset other taxable income.7 Net unrealized Builtin Losses that are not subject to limitation under the IRC could translate into future tax savings of millions of dollars for the Debtor by reducing cash taxes the reorganized Debtor pays after emergence. B. 20. Limitations on Use of Tax Attributes. Section 382 of the IRC limits a companys ability to utilize its Tax Attributes if an
ownership change occurs with respect to the companys stock. To the extent transfers of equity securities or claims results in an ownership change within the meaning of Section 382 of the IRC, such trading or transfers could severely limit or even eliminate the Debtors ability to utilize its Tax Attributes and lead to significant negative consequences for the Debtor, its estate, and the overall reorganization process. 21. Very generally, an ownership change occurs if the percentage (by value) of the
stock of a corporation owned by one or more shareholders holding 5% of the stock increases by more than 50 percentage points over the lowest percentage of stock owned by such shareholders at any time during the three-year testing period ending on the date of the ownership change. 22. Although Section 382 of the IRC imposes annual limitations on a taxpayers use
of its Tax Attributes, Section 382 also provides significant relief to a debtor if an ownership change occurs in the context of a confirmed Chapter 11 plan. Under Section 382(l)(5) of the
See 26 U.S.C. 165, 1001.
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IRC, a debtor corporation is not subject to the general limitation imposed by Section 382 with respect to an ownership change if, as a result of the transactions contemplated by a reorganization plan, historic stockholders and/or the corporations qualified creditors own at least 50% of the total value and voting power of the reorganized debtors stock (the Section 382(l)(5) Exception). See IRC 382(l)(5)(A).8 23. If the Debtor is unable to take advantage of the Section 382(l)(5) Exception and
an ownership change is deemed to have occurred during the course of the Chapter 11 case, Section 382 of the IRC would limit the amount of taxable income that the Debtor could offset by its pre-change losses in taxable years (or a portion thereof) to an annual amount equal to the value of the corporation prior to the ownership change multiplied by the long-term tax exempt rate. See 26 U.S.C. 382(b). The Debtors pre-change losses would include (a) the NOLs, (b) the Built-in Losses, and (c) the Tax Credits. Section 382 would also limit the amount of income that the Debtor could offset by pre-change Built-in Losses recognized during the first five years after the date of an ownership change.9 24. Notably, the Debtors ability to use Built-in Losses could be significantly limited
if the Debtor is unable to take advantage of the Section 382(l)(5) Exception. Under the Section 382(l)(5) Exception, the Debtor needs to ensure that historic shareholders and/or the Debtors qualified creditors hold at least 50 percent of its stock immediately after emergence to preserve the majority of its Tax Attributes. The Record Date Order is designed to ensure that the Debtors
8
A qualified creditor is generally one who (a) has held its claim continuously since at least 18 months prior to the petition date or (b) has held a claim incurred in the ordinary course of the debtors business since the claim was incurred. See IRC 382(l)(5)(E); Treas. Reg. 1.382-9(d).
9
Similarly, if an ownership change were to occur, Section 383 of the IRC would limit the amount of tax liability that the Debtors could offset by their Tax Attributes to the liability attributable to the amount of income that could have been offset by pre-change losses, but was not so offset.
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ability to request this relief is preserved if it determines at a later date that entry of a Sell-Down Order is necessary to satisfy the Section 382(l)(5) Exception to preserve its Tax Attributes. C. 25. Proposed Procedures for Trading in Equity Securities By establishing procedures for continuously monitoring the trading of
Equity Securities, the Debtor can preserve its ability to seek substantive relief at the appropriate time, particularly if it appears that additional trading may jeopardize the use of their Tax Attributes. Accordingly, the Debtor requests that this Court enter an order establishing the following procedures (collectively, the Procedures for Trading in Equity Securities): a. Any entity (as defined in Section 101(15) of the Bankruptcy Code) who currently is or becomes a Substantial Shareholder (as such term is defined in paragraph (e) below) must file with the Court, and serve upon the Debtors counsel, a declaration of such status, substantially in the form of Exhibit B attached hereto (each, a Declaration of Status as a Substantial Equityholder), on or before the later of (i) 30 days after the date of the Notice of Order (as defined herein) and (ii) ten days after becoming a Substantial Shareholder. Prior to effectuating any transfer of Equity Securities that would result in an increase in the amount of Equity Securities of which a Substantial Shareholder has Beneficial Ownership or would result in an entity becoming a Substantial Shareholder, such Substantial Shareholder or other entity must file with the Court, and serve upon the Debtors counsel, an advance written declaration of the intended transfer of Equity Securities in the form of Exhibit C attached hereto (each, a Declaration of Intent to Purchase, Acquire or Otherwise Accumulate Equity Securities). Prior to effectuating any transfer of Equity Securities that would result in a decrease in the amount of Equity Securities of which a Substantial Shareholder has Beneficial Ownership or would result in an entity ceasing to be a Substantial Shareholder, such Substantial Shareholder must file with the Court, and serve upon the Debtors counsel, an advance written declaration of the intended transfer of Equity Securities in the form of Exhibit D attached hereto (each, a Declaration of Intent to Sell, Trade, or Otherwise Transfer Equity Securities and with a Declaration of Intent to Purchase, Acquire or Accumulate Equity Securities, each, a Declaration of Proposed Transfer). The Debtor shall have ten (10) business days after receipt of a Declaration of Proposed Transfer to file with the Court and serve on such Substantial Shareholder an objection to any proposed transfer of Equity Securities described in the Declaration of Proposed Transfer on the grounds that such transfer might 12
b.
c.
d.
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adversely affect the Debtors ability to utilize its Tax Attributes. If the Debtor files an objection, such transaction would not be effective unless the Debtor withdraws its objection or such transaction is approved by a final order of the Court that becomes nonappealable. If the Debtor does not object within such 10day period, such transaction could proceed solely as set forth in the Declaration of Proposed Transfer. Further transactions within the scope of this paragraph must be the subject of additional notices in accordance with the procedures set forth herein, with an additional 10-day waiting period for each Declaration of Proposed Transfer. e. For purposes of these procedures, (i) a Substantial Shareholder is any entity that has Beneficial Ownership of at least 2,495,000 million shares of the Debtors common stock (representing approximately 4.5% of all issued and outstanding shares);10 (ii) Beneficial Ownership shall be determined in accordance with the applicable rules of IRC 382 and the regulations there under; and (iii) an Option to acquire stock includes any contingent purchase, warrant, convertible debt, put, call, stock subject to risk of forfeiture, contract to acquire stock or similar interest, regardless of whether it is contingent or otherwise not currently exercisable. No later than two (2) business days following entry of the Interim Order, the
26.
Debtor shall serve by first class mail, postage prepaid notice of the Interim Order (the Notice of Order) to: (a) Credit Suisse AG, as Administrative Agent for the Senior Lenders and Administrative Agent for the DIP Lenders; (b) Cravath, Swaine & Moore LLP, as counsel to Credit Suisse AG; (c) Bingham McCutchen LLP and Winstead PC, as counsel to certain DIP Lenders and certain Senior Lenders; (d) The Bank of New York Mellon Trust Company, N.A., as Indenture Trustee for the Senior Second Lien Noteholders; (e) the 30 largest unsecured creditors of the Debtor; (f) the holders of Net Profits Interests and Overriding Royalty Interests; (g) the United States Trustees Office; (h) the Securities and Exchange Commission; (i) the Internal Revenue Service; and (h) all registered holders of equity securities in Debtor.
Additionally, no later than two business days following entry of the Final Order, the Debtor
10
Based on 55,449,342 shares of Common Stock issued and outstanding as of July 31, 2012.
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shall serve notice of the Final Order (the Notice of Final Order) to the same entities that received the interim Notice of Order. 27. All registered holders shall be required to serve the Notice of Order or Notice of
Final Order, as applicable, on any holder for whose account such registered holder holds such Equity Securities in excess of 1 million shares of Common Stock and so forth down the chain of ownership for all such holders of Equity Securities in excess of such amounts. 28. Any entity or broker or agent acting on such entitys behalf who sells in excess of
554,500 shares of Common Stock (i.e., approximately 1% of outstanding Common Stock) to another entity shall be required to serve a copy of the Notice of Order or Notice of Final Order, as applicable, on such purchaser of such Equity Securities or any broker or agent acting on such purchasers behalf. 29. The Interim Order may be granted on an interim basis pending this Courts entry
of a Final Order. This will allow parties in interest to file an objection pursuant to the procedures set forth in the Interim Order and seek to be heard with respect to this motion, if necessary. If no objections are timely filed (or if any such timely filed objections are withdrawn before a hearing), the Debtor requests that the Court enter in the Final Order at the Final Hearing. If the Court enters the Final Order, the Debtor shall serve a Notice of Order modified to reflect that the Final Order has been entered (as modified, the Notice of Final Order) to the same entities that received the Notice of Order. D. 30. Notice and Summary of Potential Sell-Down Procedures The Debtor anticipates once it formulates a detailed proposed plan of
reorganization, it may need to seek entry of a Sell-Down Order that will enable it to determine whether the Debtor will qualify for the Section 382(l)(5) Exception and, if necessary, require Substantial Claimholders to sell-down unsecured claims to the extent necessary to allow the
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Debtor to qualify for the Section 382(l)(5) Exception (the Sell-Down Procedures). Based solely on a preliminary analysis, a Substantial Claimholder is any person or entity that has acquired unsecured claims against the Debtor during the Chapter 11 cases in the amount equal to or greater than $94.5 million11 (the Threshold Amount)12 such that the holders of such claims would be entitled to receive more than 4.5% of the equity of the reorganized Debtor. The amount of claims held by a Substantial Claimholder as of the Record Date would constitute the Protected Amount. 31. Any potential Sell-Down Procedures would require a Substantial Claimholder to
provide the Debtor with limited information, such as the size of its claim and the date such claim was acquired. Claimholders would never be required to sell down their claims below the Threshold Amount or the Protected Amount, whichever is greater. In other words, the Debtor would propose that the Sell-Down Procedures apply only to persons or entities that acquire claims in excess of the Threshold Amount after entry of this proposed Record Date Order and with full notice of the possibility that the claims they acquire could be subject to sell-down if the Debtor later determines the Sell-Down Procedures are necessary. 32. If the Sell-Down Procedures prove to be necessary, the Debtor would seek to
require certain claimholders to provide updated holdings information shortly after the date on which the Court approves a disclosure statement for a plan of reorganization that proposes to
11
$94.5 million is the product (with rounding) of (x) $2.1 billion (the Debtors outstanding liabilities that could potentially be converted into equity under a potential plan of reorganization) and (y) 4.5 percent. The Debtor believes it appropriate to be very conservative in making this calculation at this early stage of the proceedings, since the Debtors reorganized, enterprise is not currently known and, as a result, it cannot be determined whether or to what extent any of its debt may be converted to equity. Because the Threshold Amount is based on a preliminary analysis as of the Petition Date, the Debtor reserves the right to increase or decrease the Threshold Amount in the Sell-Down Procedures.
12
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utilize the Section 382(l)(5) Exception. Based on the updated holdings information, the Debtor would then determine whether it would be necessary to require Substantial Claimholders to sell down a portion of their holdings to preserve the Tax Attributes. The Debtor would only require a sell-down if it were deemed necessary for the Debtor to qualify for the Section 382(l)(5) Exception, and in no event would the Debtor seek to require a claimholder to sell-down claims below its Protected Amount. 33. Any Sell-Down Procedures the Debtor would propose would provide an adequate
opportunity and notice for claimholders to sell down their claims without triggering an unreasonable adverse impact on the value of such claims. Specifically, if a claimholder were required to sell down its holdings, the claimholder would have until shortly before the Debtor consummates a reorganization plan to effectuate the sell-down. Moreover, entry of the proposed Record Date Order at the commencement of the Chapter 11 case will provide claimants with advance notice prior to any opportunity to trade claims that any claims against the Debtor purchased after entry of the Record Date Order may ultimately be subject to Sell-Down Procedures. E. 34. The Proposed Procedures for Trading in Equity Securities and the Record Date Order are Narrowly Tailored The establishment of the Procedures for Trading in Equity Securities does not bar
transfers of equity in Debtor, and the procedures will only be in effect until the Debtors emerge from chapter 11 protections. At this time, the Debtors seek only to establish procedures
enabling them to monitor transfers of equity in Debtor that pose a serious risk to their Tax Attributes under section 382 of the IRC, so as to preserve the opportunity for substantive relief at the appropriate time. The procedures requested by the Debtors ultimately would permit most transfer of equity in Debtor, subject only to applicable securities, corporate, and other laws.
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35.
Approval of the proposed Record Date Order does not constitute approval of any
Sell-Down Procedures with respect to claims trading, or even endorse the notion of Sell-Down Procedures. Moreover, the Record Date Order will not impose a burden on any party since the Record Date Order alone, without a Sell-Down Order, will not affect the rights of any party. As stated above, the Record Date Order merely establishes the Record Date as the effective date for any Sell-Down Procedures established in the future, and provides notice to claimholders and claims traders that if the Debtor eventually requests and the Court ultimately approves SellDown Procedures, the ownership of claims will be measured as of the Record Date and the claimholders may be subject to a required sell-down of any claims purchased after the Record Date. 36. The relief requested herein is functionally identical to the similar relief granted in
In re Hawker Beechcraft, Inc., Case No. 12-11873 (Bankr. S.D.N.Y. May 4, 2012); In re TOUSA, Inc., Case No. 08-10928 (JKO) (Bankr. S.D. Fla. Mar. 6, 2008) and In re Calpine Corp., Case No. 05-60200 (BRL) (Bankr. S.D.N.Y. Dec. 21, 2005) and is without prejudice to any party to object to a required sell-down. See also In re AMR Corp., Case No. 11-15463 (SHL) (Bankr. S.D.N.Y. Nov. 30, 2011) (interim order approving claims trading notification procedures); In re Dana Corp., No. 06-10354 (BRL) (Bankr. S.D.N.Y. Aug. 9, 2006) (approving notification and sell-down procedures); In re Delta Air Lines, Inc., No. 05-17923 (PCB) (Bankr. S.D.N.Y. Sept. 16, 2005) (approving notification procedures and restrictions on certain transfers of claims against and equity interests in the debtors on an interim basis); In re Northwest Airlines Corp., No. 05- 17930 (ALG) (Bankr. S.D.N.Y. Sept. 15, 2005) (approving notification procedures and restrictions on certain transfers of claims against and equity interests in the debtors on an interim basis). For the avoidance of doubt, entry of the Record Date Order would
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in no way be deemed a determination of any kind that entry of a Sell-Down Order is necessary or warranted in these cases and the Courts review of any request for the entry of a Sell-Down Order would be without regard to entry of the Record Date Order. VI. SUPPORTING AUTHORITY
A. The Tax Attributes are Property of a Debtors Estate. 37. Courts have held that a debtors interest in the right to carry forward its Tax
Attributes constitutes property of the estate under Section 541 of the Bankruptcy Code and, as such, have the authority to implement certain protective measures to preserve this right. See, e.g., Official Comm. of Unsecured Creditors v. PSS Steamship Co. (In re Prudential Lines, Inc.), 928 F.2d 565 (2d Cir. 1991), cert. denied, 502 U.S. 821 (1991) (debtors right to NOL carryforward was property of its estate); In re Delta Air Lines, Inc., No. 05-17923 (Bankr. S.D.N.Y. Sept. 16, 2005) (holding non-NOL tax credit carry forwards were property of the debtors estates and approving notification procedures and restrictions on certain transfers of claims against and interests in the debtors to protect the tax credits). Because the Debtors Tax Attributes are property of their estates, the Debtor has a duty to take steps to preserve them, and this Court has the authority under Section 362 of the Bankruptcy Code to enforce the automatic stay by taking steps to restrict the transfer of equity or claims that could jeopardize the existence of these valuable assets. B. 38. The Requested Relief Is Necessary to Avoid Irreparable Harm to the Debtors. Implementation of the Procedures for Trading in Equity Securities are necessary
to avoid significant loss to the Debtors estate resulting from the loss of the Tax Attributes which are necessary for the Debtors plan to maximize value for all of its stakeholders. The Entry of the Record Date Order will not affect the rights of any party in interest; instead, it will set and
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preserve the Record Date should Sell-Down Procedures eventually become necessary to avoid the imposition of an irrevocable limitation on the Debtors Tax Attributes. Whether or not the Debtor ultimately requests and the Court ultimately implements -- Sell-Down Procedures, entry of the Record Date Order protects the Debtors option to choose to preserve its Tax Attributes without affecting any party in interest. To preserve its ability to request and
implement Sell-Down Procedures, the Debtor seeks to notify claims traders prospectively that claims acquired after the Record Date in excess of the Threshold Amount may be subject to a Sell-down Order. Entry of the Record Date Order will preserve the Debtors flexibility to seek to implement Sell-Down Procedures if it determines that proposing a plan of reorganization that would take advantage of the Section 382(l)(5) Exception is in the best interest of its estate. Without the Record Date Order fixing the Record Date on or about the commencement of the Chapter 11 case, it is unlikely that the Debtor would ever be able to implement Sell-Down Procedures preventing an ownership change and thereby avoid limitations on, and possibly the loss of, its Tax Attributes. THE REQUIREMENTS OF BANKRUPTCY RULE 6003 ARE SATISFIED 39. Bankruptcy Rule 6003 empowers a court to grant relief within the first 21 days
after the Petition Date to the extent that relief is necessary to avoid immediate and irreparable harm. Absent the relief requested herein, the Debtor would suffer immediate and irreparable harm because a failure to establish the Record Date would jeopardize the Debtors ability to request and implement Sell-Down Procedures. Without Sell-Down Procedures, the Debtor risks the loss of the Debtors substantial and important Tax Attributes. For now, the Debtor is only seeking entry of the Record Date Order to establish the Record Date and preserve the Debtors ability to protect its Tax Attributes in the future without affecting any party in interest. Failure to establish a Record Date would result in immediate and irreparable harm to the Debtors estate
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because it would severely hinder the Debtors ability to implement Sell-Down Procedures at a later time. Accordingly, the Debtor submits that it has satisfied the immediate and irreparable harm standard of Bankruptcy Rule 6003. VII. 40. NOTICE
Notice of this Motion has been provided by overnight delivery and electronic mail
or facsimile to: (a) Credit Suisse AG, as Administrative Agent for the Senior Lenders and Administrative Agent for the DIP Lenders; (b) Cravath, Swaine & Moore LLP, as counsel to Credit Suisse AG; (c) Bingham McCutchen LLP and Winstead PC, as counsel to certain DIP Lenders and certain Senior Lenders; (d) The Bank of New York Mellon Trust Company, N.A., as Indenture Trustee for the Senior Second Lien Noteholders; (e) the 30 largest unsecured creditors of the Debtor; (f) the holders of Net Profits Interests and Overriding Royalty Interests; (g) the United States Trustees Office; (h) the Securities and Exchange Commission; and (i) the Internal Revenue Service. The Debtor believes that the notice provided is fair and adequate and that no further notice is necessary. WHEREFORE, the Debtor respectfully requests that the Court enter an order granting the relief requested by this Motion and such further relief as may be just and necessary under the circumstances. [Remainder of Page Intentionally Left Blank]
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Dated: August 17, 2012
Respectfully submitted, MAYER BROWN LLP
By:
/s/Charles S. Kelley Charles S. Kelley Attorney-in-Charge State Bar No. 11199580 Southern District of Texas Bar No. 15344 700 Louisiana Street, Suite 3400 Houston, TX 77002-2730 Telephone: 713 238-3000 Facsimile: 713 238-4888 and Howard S. Beltzer (pro hac vice application pending) Frederick D. Hyman (pro hac vice application pending) 1675 Broadway New York, NY 10019 Telephone: 212 506-2500 Facsimile: 212 262-1910 and Stuart M. Rozen (pro hac vice application pending) Sean T. Scott (pro hac vice application pending) 71 South Wacker Drive Chicago, IL 60606 Telephone: 312 782-0600 Facsimile: 312 701-7711 PROPOSED ATTORNEYS FOR THE DEBTOR AND DEBTOR-IN-POSSESSION
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EXHIBIT A PROPOSED INTERIM ORDER
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IN THE UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION In re: ATP Oil & Gas Corporation, Debtor. Chapter 11
Case No.: 12-____________
INTERIM ORDER (1) ESTABLISHING AN EFFECTIVE DATE FOR NOTICE AND SELL-DOWN PROCEDURES FOR TRADING IN CLAIMS AGAINST THE DEBTORS ESTATES AND (2) GRANTING RELATED RELIEF Upon consideration of the Debtors Emergency Motion for the Entry of Interim and Final Orders (1) Establishing an Effective Date for Notice and Sell-Down Procedures for Trading in Claims Against the Debtors Estate and (2) Granting Related Relief (the Motion); 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 is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(A); and proper and adequate notice of the Motion and the hearing thereon having been given; and it appearing that no other or further notice being necessary, and it appearing that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; and the Court having determined that the relief sought in the Motion is in the best interests of the Debtor and its estate; and after due deliberation and sufficient cause appearing therefore; it is hereby ORDERED THAT: 1. 2. The Motion is granted on an interim basis as set forth herein. Any transfer of Debtor Stock in violation of the Procedures for Trading in Equity
Securities set forth herein shall be void ab initio.
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3.
The following Procedures for Trading in Equity Securities shall apply to potential
transfers of Debtor Stock: a. Any entity (as defined in Section 101(15) of the Bankruptcy Code) who currently is or becomes a Substantial Shareholder (as such term is defined in paragraph (e) below) must file with the Court, and serve upon the Debtors counsel, a declaration of such status, substantially in the form of Exhibit B attached hereto (each, a Declaration of Status as a Substantial Equityholder), on or before the later of (i) 30 days after the date of the Notice of Order (as defined herein) and (ii) ten days after becoming a Substantial Shareholder. b. Prior to effectuating any transfer of Equity Securities that would result in an increase in the amount of Equity Securities of which a Substantial Shareholder has Beneficial Ownership or would result in an entity becoming a Substantial Shareholder, such Substantial Shareholder or other entity must file with the Court, and serve upon the Debtors counsel, an advance written declaration of the intended transfer of Equity Securities in the form of Exhibit C attached hereto (each, a Declaration of Intent to Purchase, Acquire or Otherwise Accumulate Equity Securities). c. Prior to effectuating any transfer of Equity Securities that would result in a decrease in the amount of Equity Securities of which a Substantial Shareholder has Beneficial Ownership or would result in an entity ceasing to be a Substantial Shareholder, such Substantial Shareholder must file with the Court, and serve upon the Debtors counsel, an advance written declaration of the intended transfer of Equity Securities in the form of Exhibit D attached hereto (each, a Declaration of Intent to Sell, Trade, or Otherwise Transfer Equity Securities and with a Declaration of Intent to Purchase, Acquire or Accumulate Equity Securities, each, a Declaration of Proposed Transfer). d. The Debtor shall have 10 business days after receipt of a Declaration of Proposed Transfer to file with the Court and serve on such Substantial Shareholder an objection to any proposed transfer of Equity Securities described in the Declaration of Proposed Transfer on the grounds that such transfer might adversely affect the Debtors ability to utilize its Tax Attributes. If the Debtor files an objection, such transaction would not be effective unless the Debtor withdraws its objection or such transaction is approved by a final order of the Court that becomes nonappealable. If the Debtor does not object within such 10- day period, such transaction could proceed solely as set forth in the Declaration of Proposed Transfer. Further transactions within the scope of this paragraph must be the subject of additional notices in accordance with the procedures set forth herein, with an additional 10-day waiting period for each Declaration of Proposed Transfer. e. For purposes of these procedures, (i) a Substantial Shareholder is any entity that has Beneficial Ownership of at least 2,495,000 million shares of the Debtors common stock (representing approximately 4.5% of all issued and outstanding shares);13 (ii) Beneficial Ownership shall be determined in accordance with the applicable rules of IRC 382 and the
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regulations there under; and (iii) an Option to acquire stock includes any contingent purchase, warrant, convertible debt, put, call, stock subject to risk of forfeiture, contract to acquire stock or similar interest, regardless of whether it is contingent or otherwise not currently exercisable. f. All registered holders shall be required to serve the Notice of Order or Notice of Final Order, as applicable, on any holder for whose account such registered holder holds such Equity Securities in excess of 1 million shares of Common Stock and so forth down the chain of ownership for all such holders of Equity Securities in excess of such amounts. g. Any entity or broker or agent acting on such entitys behalf who sells in excess of 554,500 million shares of Common Stock (i.e., approximately 1% of outstanding Common Stock) to another entity shall be required to serve a copy of the Notice of Order or Notice of Final Order, as applicable, on such purchaser of such Equity Securities or any broker or agent acting on such purchasers behalf. 4. Claimholders and potential purchasers of claims against the Debtor are hereby
deemed notified that, if that the Court ultimately approves a Sell-Down Order, claimholders that acquire claims after the date of this Record Date Order (the Record Date) in an amount that would entitle them to receive more than 4.5% of the stock of the reorganized Debtor may be subject to a required sell-down of any claims purchased after the Record Date 5. Entry of this Record Date Order shall in no way be deemed a determination of
any kind that entry of a Sell-Down Order is necessary or warranted in this case and this Courts review of any request for the entry of a Sell-Down Order shall be without regard to entry of this Record Date Order. 6. The entry of this Record Date Order shall in no way prejudice the rights of any
party to oppose the entry of a Sell-Down Order, on any grounds, and all parties rights are expressly preserved hereby. 7. The requirements set forth in this Record Date Order are in addition to the
requirements of all applicable law and do not excuse compliance therewith.
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The requirements set forth in Bankruptcy Rule 6003(b) are satisfied. The terms and conditions of this Record Date Order shall be immediately
effective and enforceable upon its entry. 10. The Debtor is authorized to take all actions necessary to effectuate the relief
granted pursuant to this Record Date Order in accordance with the Motion. 11. All time periods set forth in this Record Date Order shall be calculated in
accordance with Bankruptcy Rule 9006(a). 12. The Court retains exclusive jurisdiction with respect to all matters arising from or
related to the implementation of this Record Date Order. SIGNED this ___ day of August, 2012.
____________________________________ UNITED STATES BANKRUPTCY JUDGE
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EXHIBIT B DECLARATION OF STATUS AS A SUBSTANTIAL EQUITYHOLDER
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Case No.: 12-____________
DECLARATION OF STATUS AS A SUBSTANTIAL EQUITYHOLDER1 PLEASE TAKE NOTICE that __________ is/has become a Substantial Equityholder with respect to the equity securities of ATP Oil & Gas Corporation (ATP) or any beneficial interest therein. ATP is a debtor and debtor in possession in Case No. 12-__________ pending in the United States Bankruptcy Court for the Southern District of Texas Houston Division. PLEASE TAKE FURTHER NOTICE that, as of _________ __ , 2012, _________________ beneficially owns _____ shares of the ATP Stock. The following table sets forth the date(s) on which __________ acquired beneficial ownership or otherwise has beneficial ownership of such ATP Stock: Number of Shares of ATP Stock Date Acquired
Capitalized terms used but not defined herein shall have the meanings set forth in that certain Interim Order Pursuant to Sections 105, 362 and 541 of the Bankruptcy Code Establishing Procedures for Transfers of Equity Securities Scheduling a Final Hearing and Approving Notice Procedures [Docket No. ___], entered on _____________, 2012.
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(Attach additional page(s) as necessary) PLEASE TAKE FURTHER NOTICE that the last four digits of the taxpayer identification number of ________________ are _________. PLEASE TAKE FURTHER NOTICE that, pursuant to the Interim Order, this Declaration is being (a) filed with the United States Bankruptcy Court for the Southern District of Texas Houston Division, (b) served on the Debtors, and (c) served on counsel to Debtors. PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. 1746, under penalties of perjury, ____________________ hereby declares that he or she has examined this Declaration and accompanying attachments (if any), and, to the best of his or her knowledge and belief, this Declaration and any attachments which purport to be part of this Declaration, are true, correct and complete.
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Respectfully submitted, (Name of Substantial Equityholder) By: ______________________________________ Name: ____________________________________ Address: __________________________________ _________________________________________ Telephone: ________________________________ Facsimile: _________________________________ , Dated:
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EXHIBIT C DECLARATION OF INTENT TO PURCHASE, ACQUIRE OR OTHERWISE ACCUMULATE EQUITY SECURITIES
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Case No.: 12-____________
DECLARATION OF INTENT TO PURCHASE ACQUIRE OR OTHERWISE ACCUMULATE EQUITY SECURITIES1 PLEASE TAKE NOTICE that _________ hereby provides notice of its intent to purchase, acquire or otherwise accumulate one or more shares of the equity securities of ATP Oil & Gas Corporation (ATP) or any beneficial interest therein (such transfer, the Proposed Transfer). PLEASE TAKE FURTHER NOTICE that, if applicable, on ________ __, _______, __________________________ filed a Declaration of Status as a Substantial Equityholder with the United States Bankruptcy Court for the Southern District of Texas Houston Division (the Bankruptcy Court) and served copies thereof as set forth therein. PLEASE TAKE FURTHER NOTICE that ________________ currently Beneficially Owns ______ shares of ATP Stock. PLEASE TAKE FURTHER NOTICE that, pursuant to the Proposed Transfer, _______________________ proposes to purchase, acquire or otherwise accumulate _______ shares of ATP Stock. If the Proposed Transfer is permitted to occur, ____________ will Beneficially Own ____ shares of ATP Stock after such transfer becomes effective.
1
Capitalized terms used but not defined herein shall have the meanings set forth in that certain Interim Order Pursuant to Sections 105, 362 and 541 of the Bankruptcy Code for Transfers of Equity Securities Scheduling a Final Hearing and Approving Notice Procedures [Docket No. ___] entered on _______, 2012.
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PLEASE TAKE FURTHER NOTICE that the last four digits of the taxpayer identification number of ____________ are ______. PLEASE TAKE FURTHER NOTICE that, pursuant to the Interim Order, this Declaration is being (a) filed with the Bankruptcy Court, (b) served on the Debtors, and (c) served on counsel to the Debtors. PLEASE TAKE FURTHER NOTICE that the Debtors have 30 calendar days after receipt of this Declaration 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 order of the Bankruptcy Court that becomes nonappealable. 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 this Declaration. PLEASE TAKE FURTHER NOTICE that any further transactions contemplated by ____________ that may result in ____________ purchasing, acquiring or otherwise accumulating additional shares of ATP Stock will each require an additional notice filed with the Bankruptcy Court to be served in the same manner as this Declaration. PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. 1746, under penalties of perjury, ____________ hereby declares that he or she has examined this Declaration and accompanying attachments (if any), and, to the best of his or her knowledge and belief, this Declaration and any attachments, which purport to be part of this Declaration, are true, correct and complete.
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EXHIBIT D DECLARATION OF INTENT TO SELL, TRADE OR OTHERWISE TRANSFER EQUITY SECURITIES
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Case No.: 12-____________
DECLARATION OF INTENT TO SELL, TRADE OR OTHERWISE TRANSFER EQUITY SECURITIES16 PLEASE TAKE NOTICE that ___________ hereby provides notice of its intent to sell, trade or otherwise transfer shares of the equity securities of ATP Oil & Gas Corporation (ATP) or any beneficial interest therein (such transfer, the Proposed Transfer). PLEASE TAKE FURTHER NOTICE that, if applicable, on _________ ___, _____, ___________ filed a Declaration of Status as a Substantial Equityholder with the United States Bankruptcy Court for the Southern District of Texas Houston Division (the Bankruptcy Court) and served copies thereof as set forth therein. PLEASE TAKE FURTHER NOTICE that ___________ currently Beneficially Owns _____ shares of ATP Stock. PLEASE TAKE FURTHER NOTICE that, pursuant to the Proposed Transfer, ___________ proposes to sell, trade or otherwise transfer ____ shares of ATP Stock. If the Proposed Transfer is permitted to occur, ___________ will Beneficially Own _____ shares of ATP Stock after such transfer becomes effective.
16
Capitalized terms used but not defined herein shall have the meanings set forth in that certain Interim Order Pursuant to Sections 105, 362 and 541 of the Bankruptcy Code for Transfers of Equity Securities Scheduling a Final Hearing and Approving Notice Procedures [Docket No. __], entered on _______, 2012.
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PLEASE TAKE FURTHER NOTICE that the last four digits of the taxpayer identification number of __________ are ____. PLEASE TAKE FURTHER NOTICE that, pursuant to the Interim Order, this Declaration is being (a) filed with the Bankruptcy Court, (b) served on the Debtors, and (c) served on counsel to the Debtors. PLEASE TAKE FURTHER NOTICE that the Debtors have 30 calendar days after receipt of this Declaration 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 order of the Bankruptcy Court that becomes nonappealable. 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 this Declaration. PLEASE TAKE FURTHER NOTICE that any further transactions contemplated by __________ that may result in __________ selling, trading or otherwise transferring additional shares of ATP Stock will each require an additional notice filed with the Bankruptcy Court to be served in the same manner as this Declaration. PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. 1746, under penalties of perjury, __________ hereby declares that he or she has examined this Declaration and accompanying attachments (if any), and, to the best of his or her knowledge and belief, this Declaration and any attachments, which purport to be part of this Declaration, are true, correct and complete.
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Case 12-36187 Document 19-1 Filed in TXSB on 08/17/12 Page 1 of 5
EXHIBIT A PROPOSED INTERIM ORDER
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Case No.: 12-____________
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EXHIBIT B DECLARATION OF STATUS AS A SUBSTANTIAL EQUITYHOLDER
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Case No.: 12-____________
DECLARATION OF STATUS AS A SUBSTANTIAL EQUITYHOLDER1 PLEASE TAKE NOTICE that __________ is/has become a Substantial Equityholder with respect to the equity securities of ATP Oil & Gas Corporation (ATP) or any beneficial interest therein. ATP is a debtor and debtor in possession in Case No. 12-__________ pending in the United States Bankruptcy Court for the Southern District of Texas Houston Division. PLEASE TAKE FURTHER NOTICE that, as of _________ __ , 2012, _________________ beneficially owns _____ shares of the ATP Stock. The following table sets forth the date(s) on which __________ acquired beneficial ownership or otherwise has beneficial ownership of such ATP Stock: Number of Shares of ATP Stock Date Acquired
Capitalized terms used but not defined herein shall have the meanings set forth in that certain Interim Order Pursuant to Sections 105, 362 and 541 of the Bankruptcy Code Establishing Procedures for Transfers of Equity Securities Scheduling a Final Hearing and Approving Notice Procedures [Docket No. ___], entered on _____________, 2012.
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(Attach additional page(s) as necessary) PLEASE TAKE FURTHER NOTICE that the last four digits of the taxpayer identification number of ________________ are _________. PLEASE TAKE FURTHER NOTICE that, pursuant to the Interim Order, this Declaration is being (a) filed with the United States Bankruptcy Court for the Southern District of Texas Houston Division, (b) served on the Debtors, and (c) served on counsel to Debtors. PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. 1746, under penalties of perjury, ____________________ hereby declares that he or she has examined this Declaration and accompanying attachments (if any), and, to the best of his or her knowledge and belief, this Declaration and any attachments which purport to be part of this Declaration, are true, correct and complete.
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EXHIBIT C DECLARATION OF INTENT TO PURCHASE, ACQUIRE OR OTHERWISE ACCUMULATE EQUITY SECURITIES
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Case No.: 12-____________
DECLARATION OF INTENT TO PURCHASE ACQUIRE OR OTHERWISE ACCUMULATE EQUITY SECURITIES1 PLEASE TAKE NOTICE that _________ hereby provides notice of its intent to purchase, acquire or otherwise accumulate one or more shares of the equity securities of ATP Oil & Gas Corporation (ATP) or any beneficial interest therein (such transfer, the Proposed Transfer). PLEASE TAKE FURTHER NOTICE that, if applicable, on ________ __, _______, __________________________ filed a Declaration of Status as a Substantial Equityholder with the United States Bankruptcy Court for the Southern District of Texas Houston Division (the Bankruptcy Court) and served copies thereof as set forth therein. PLEASE TAKE FURTHER NOTICE that ________________ currently Beneficially Owns ______ shares of ATP Stock. PLEASE TAKE FURTHER NOTICE that, pursuant to the Proposed Transfer, _______________________ proposes to purchase, acquire or otherwise accumulate _______ shares of ATP Stock. If the Proposed Transfer is permitted to occur, ____________ will Beneficially Own ____ shares of ATP Stock after such transfer becomes effective.
1
Capitalized terms used but not defined herein shall have the meanings set forth in that certain Interim Order Pursuant to Sections 105, 362 and 541 of the Bankruptcy Code for Transfers of Equity Securities Scheduling a Final Hearing and Approving Notice Procedures [Docket No. ___] entered on _______, 2012.
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PLEASE TAKE FURTHER NOTICE that the last four digits of the taxpayer identification number of ____________ are ______. PLEASE TAKE FURTHER NOTICE that, pursuant to the Interim Order, this Declaration is being (a) filed with the Bankruptcy Court, (b) served on the Debtors, and (c) served on counsel to the Debtors. PLEASE TAKE FURTHER NOTICE that the Debtors have 30 calendar days after receipt of this Declaration 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 order of the Bankruptcy Court that becomes nonappealable. 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 this Declaration. PLEASE TAKE FURTHER NOTICE that any further transactions contemplated by ____________ that may result in ____________ purchasing, acquiring or otherwise accumulating additional shares of ATP Stock will each require an additional notice filed with the Bankruptcy Court to be served in the same manner as this Declaration. PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. 1746, under penalties of perjury, ____________ hereby declares that he or she has examined this Declaration and accompanying attachments (if any), and, to the best of his or her knowledge and belief, this Declaration and any attachments, which purport to be part of this Declaration, are true, correct and complete.
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EXHIBIT D DECLARATION OF INTENT TO SELL, TRADE OR OTHERWISE TRANSFER EQUITY SECURITIES
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Case No.: 12-____________
DECLARATION OF INTENT TO SELL, TRADE OR OTHERWISE TRANSFER EQUITY SECURITIES16 PLEASE TAKE NOTICE that ___________ hereby provides notice of its intent to sell, trade or otherwise transfer shares of the equity securities of ATP Oil & Gas Corporation (ATP) or any beneficial interest therein (such transfer, the Proposed Transfer). PLEASE TAKE FURTHER NOTICE that, if applicable, on _________ ___, _____, ___________ filed a Declaration of Status as a Substantial Equityholder with the United States Bankruptcy Court for the Southern District of Texas Houston Division (the Bankruptcy Court) and served copies thereof as set forth therein. PLEASE TAKE FURTHER NOTICE that ___________ currently Beneficially Owns _____ shares of ATP Stock. PLEASE TAKE FURTHER NOTICE that, pursuant to the Proposed Transfer, ___________ proposes to sell, trade or otherwise transfer ____ shares of ATP Stock. If the Proposed Transfer is permitted to occur, ___________ will Beneficially Own _____ shares of ATP Stock after such transfer becomes effective.
16
Capitalized terms used but not defined herein shall have the meanings set forth in that certain Interim Order Pursuant to Sections 105, 362 and 541 of the Bankruptcy Code for Transfers of Equity Securities Scheduling a Final Hearing and Approving Notice Procedures [Docket No. __], entered on _______, 2012.
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PLEASE TAKE FURTHER NOTICE that the last four digits of the taxpayer identification number of __________ are ____. PLEASE TAKE FURTHER NOTICE that, pursuant to the Interim Order, this Declaration is being (a) filed with the Bankruptcy Court, (b) served on the Debtors, and (c) served on counsel to the Debtors. PLEASE TAKE FURTHER NOTICE that the Debtors have 30 calendar days after receipt of this Declaration 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 order of the Bankruptcy Court that becomes nonappealable. 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 this Declaration. PLEASE TAKE FURTHER NOTICE that any further transactions contemplated by __________ that may result in __________ selling, trading or otherwise transferring additional shares of ATP Stock will each require an additional notice filed with the Bankruptcy Court to be served in the same manner as this Declaration. PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. 1746, under penalties of perjury, __________ hereby declares that he or she has examined this Declaration and accompanying attachments (if any), and, to the best of his or her knowledge and belief, this Declaration and any attachments, which purport to be part of this Declaration, are true, correct and complete.
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ATP Oil Claim and Equity Trading Motion

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Case 12-36187 Document 19 Filed in TXSB on 08/17/12Docket #0019 38 Filed: 8/17/2012 Page 1 of Date

Case No.: 12-____________

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ATP is a Texas corporation based in Houston, Texas, which was organized in

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In order to formulate a plan of reorganization that maximize its use of valuable

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Specifically, under federal income tax law,2 transfers of beneficial interests in

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See 26 U.S.C. 172.

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See 26 U.S.C. 165, 1001.

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Dated: August 17, 2012

Respectfully submitted, MAYER BROWN LLP

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EXHIBIT A PROPOSED INTERIM ORDER

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Case No.: 12-____________

Securities set forth herein shall be void ab initio.

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requirements of all applicable law and do not excuse compliance therewith.

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____________________________________ UNITED STATES BANKRUPTCY JUDGE

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EXHIBIT B DECLARATION OF STATUS AS A SUBSTANTIAL EQUITYHOLDER

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Case No.: 12-____________

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EXHIBIT C DECLARATION OF INTENT TO PURCHASE, ACQUIRE OR OTHERWISE ACCUMULATE EQUITY SECURITIES

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Case No.: 12-____________

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EXHIBIT D DECLARATION OF INTENT TO SELL, TRADE OR OTHERWISE TRANSFER EQUITY SECURITIES

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Case No.: 12-____________

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EXHIBIT A PROPOSED INTERIM ORDER

Case 12-36187 Document 19-1 Filed in TXSB on 08/17/12 Page 2 of 5

Case No.: 12-____________

Securities set forth herein shall be void ab initio.

Case 12-36187 Document 19-1 Filed in TXSB on 08/17/12 Page 3 of 5