Case KG Doc 936 Filed 05/27/14 Page 1 of 14 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

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1 Case KG Doc 936 Filed 05/27/14 Page 1 of 14 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) In re: ) Chapter 11 ) FAH LIQUIDATING CORP., et al., 1 ) Case No (KG) (f/k/a FISKER AUTOMOTIVE ) HOLDINGS, INC.) ) (Jointly Administered) ) Debtors. ) Hearing Date: ) July 15, 10:00 a.m. (ET) ) ) Objection Deadline: ) June 10, 4:00 p.m. (ET) ) DEBTORS THIRD OMNIBUS OBJECTION TO CERTAIN PROOFS OF CLAIM (EQUITY CLAIMS AND RECLASSIFICATION CLAIMS) (SUBSTANTIVE) THIS OBJECTION SEEKS TO DISALLOW, EXPUNGE, RECLASSIFY, AND/OR SUBORDINATE CERTAIN FILED PROOFS OF CLAIM. CLAIMANTS RECEIVING THIS OBJECTION SHOULD LOCATE THEIR NAMES AND CLAIMS ON SCHEDULES 1 4 TO EXHIBIT A ATTACHED TO THIS OBJECTION. The above-captioned debtors and debtors in possession (collectively, the Debtors ) file this objection (this Objection ) for entry of an order, substantially in the form attached hereto as Exhibit A (the Order ), (1) subordinating the 28 claims identified on Schedule 1 to the Order (collectively, the Subordinated Equity s ) because such claims assert damages arising from the purchase or sale of the Debtors equity securities, (2) disallowing and expunging the 8 claims identified on Schedule 2 to the Order (collectively, the Non-Debtor Equity s ) in their entirety because such claims were filed on account of interests held in nondebtors, (3) expunging the 16 claims identified on Schedule 3 to the Order (collectively, the Equity 1 The Debtors, together with the last four digits of each Debtor s federal tax identification number, are: FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.) (9678); and FA Liquidating Corp. (f/k/a Fisker Automotive, Inc.) (9075). For the purpose of these chapter 11 cases, the service address for the Debtors is: 3080 Airway Avenue, Costa Mesa, California KE

2 Case KG Doc 936 Filed 05/27/14 Page 2 of 14 Interest s, and together with the Subordinated Equity s and the Non-Debtor Equity s, the Equity s ) because such proofs of claim were filed on account of equity interests in the Debtors, and (4) reclassifying the 19 claims identified on Schedule 4 to the Order (collectively, the Reclassification s, and together with the Equity s, the Disputed s ) 2 because such proofs of claim assert priorities not reflected in the Reorganized Debtors books and records and not supported under the Bankruptcy Code. In support of this Objection, the Debtors submit the Declaration of Richard Kapko in Support of the Debtors Third Omnibus Objection to Certain Proofs of (Equity s and Reclassification s) (Substantive) (the Kapko Declaration ), attached hereto as Exhibit B, and respectfully state as follows: 3 Jurisdiction 1. The United States Bankruptcy Court for the District of Delaware (the Court ) has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware, dated February 29, This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2), and the Court may enter a final order consistent with Article III of the United States Constitution. 2. Venue is proper pursuant to 28 U.S.C and The statutory bases for the relief requested herein are sections 502 and 510(b) of title 11 of the United States Code, 11 U.S.C (the Bankruptcy Code ), Rules 3007, 3013, and 9014 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ), and 2 3 The Debtors may be objecting to certain Disputed s on multiple grounds, in which case such will be listed on more than one of the Schedules to the Order. Accordingly, claimants receiving this Objection should check each of Schedules 1 4 to the Order for their names and s. Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Bar Date Order (as defined herein). KE

3 Case KG Doc 936 Filed 05/27/14 Page 3 of 14 Rules and 9006-l(d) of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware (the Local Rules ). Background 4. On November 22, 2013 (the Petition Date ), each of the Debtors filed 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. On November 26, 2013, the Court entered an order [Docket No. 52] authorizing the joint administration and procedural consolidation of these chapter 11 cases pursuant to Bankruptcy Rule 1015(b). No request for the appointment of a trustee or examiner has been made in the chapter 11 cases. On December 5, 2013, the United States Trustee for the District of Delaware (the U.S. Trustee ) appointed an official committee of unsecured creditors pursuant to section 1102 of the Bankruptcy Code (the Committee ) [Docket No. 102]. The s Reconciliation Process 5. On December 3, 2013, the Debtors filed their schedules of assets and liabilities and executory contracts and unexpired leases and statements of financial affairs, as required pursuant to section 521 of the Bankruptcy Code. 6. On December 30, 2013, the Court entered an order [Docket No. 252] (the Bar Date Order ) establishing: (a) January 27, 2014, as the deadline for all persons and entities holding or wishing to assert a claim (as defined in section 101(5) of the Bankruptcy Code) against any of the Debtors that arose before the Petition Date (each, a ) including any claim arising under section 503(b)(9) of the Bankruptcy Code, to file proof of such in writing; (b) January 27, 2014, as the deadline for all persons and entities holding or wishing to assert a request for payment of administrative claims against any of the Debtors that arose KE

4 Case KG Doc 936 Filed 05/27/14 Page 4 of 14 between the Petition Date and January 2, 2014 (excluding any claim arising under section 503(b)(9) of the Bankruptcy Code), to file proof of such in writing; and (c) May 21, 2014, as the deadline for all governmental units holding or wishing to assert a against any of the Debtors that arose before the Petition Date to file proof of such in writing. Notice of the Bar Date Order was provided in accordance with the procedures outlined therein. 7. To date, entities have filed approximately 630 proofs of claim against the Debtors on an aggregate basis, collectively asserting more than $1 billion in aggregate liabilities. The Debtors and their advisors are in the process of reviewing the proofs of claim, including supporting documentation, if any, filed together with any proof of claim, and reconciling the proofs of claim with the Debtors books and records to determine the validity of the proofs of claim. For the reasons set forth in more detail below, and based on their review to date, the Debtors have determined that the Disputed s are objectionable on the grounds set forth below. Objection I. Subordinated Equity s 4 8. The Debtors have reviewed the Subordinated Equity s identified on Schedule 1 to the Order and have determined that each Subordinated Equity must be subordinated to the claims of other general unsecured creditors pursuant to section 510(b) of the Bankruptcy Code because such claims assert damages arising from the purchase or sale of equity 4 As set forth herein, the Debtors seek to subordinate the Subordinated Equity s pursuant to section 510(b) of the Bankruptcy Code. For the same reasons as set forth herein, the Debtors also seek, pursuant to Bankruptcy Rule 3013, to classify such Subordinated Equity s (to the extent they are not otherwise disallowed or expunged) as a separate class of creditors for purposes of any chapter 11 plan that the Debtors have or may propose and its acceptance. KE

5 Case KG Doc 936 Filed 05/27/14 Page 5 of 14 securities in FAH Liquidating Corp. (f/k/a/ Fisker Automotive Holdings, Inc.). Section 510(b) of the Bankruptcy Code provides that: [A] claim... for damages arising from the purchase or sale of [a security of the debtor or an affiliate of the debtor], or for reimbursement or contribution allowed under section 502 on account of such a claim, shall be subordinated to all claims or interests that are senior to or equal the claim or interest represented by such security, except that if such security is common stock, such claim has the same priority as common stock. 9. Accordingly, subordination of a claim for damages arising from the purchase or sale of securities is mandatory. See In re Int l Wireless Commc ns Holdings, Inc., 279 B.R. 463, 470 (D. Del. 2002) aff d, 68 F. App x 275 (3d Cir. 2003) (affirming ruling that claims for damages arising from the purchase or sale of securities are subject to mandatory subordination under Section 510(b) ). Section 510(b) of the Bankruptcy Code prevent[s] disappointed shareholders from recovering their investment losses by using fraud and other securities claims to bootstrap their way to parity with general unsecured creditors in a bankruptcy proceeding. In re Telegroup, Inc., 281 F.3d 133, 141 (3d Cir. 2002). 10. In this way, section 510(b) furthers a fundamental principal of bankruptcy law the absolute priority rule by ensuring that creditors stand ahead of the investors on the receiving line. In re Kaiser Grp. Int l, Inc., No (MFW), 2001 WL , at *4 (D. Del. Nov. 29, 2001) (internal quotations omitted); see also In re Int l Wireless Commc ns Holdings, Inc., 68 F. App x 275, 278 (3d Cir. 2003) ( Just as shareholders accept gladly the upside potential of increases in their shares value (whatever the reason), they should also assume the risk of decline in value for whatever reason, including (but not limited to) fraud in the issuance, by having their claims subordinated shorthand for the result that, because they purchased stock, they are at the end of the line in bankruptcy distribution priority. ). KE

6 Case KG Doc 936 Filed 05/27/14 Page 6 of 14 Accordingly, the relevant inquiry becomes whether the claim would not exist but for claimants purchase of debtor s stock. Telegroup, 281 F.3d at 143 (emphasis added). 11. Generally, each Subordinated Equity identified on Schedule 1 to the Order asserts damages for securities laws violations, or claims otherwise arising from the purchase or sale of a security, and such claims would not exist but for the claimants purchase of the stock issued by FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.), an above-captioned Debtor. Thus, such claims squarely fall within the scope of section 510(b), subordinating such claims in their entirety to the claims of the Debtors unsecured creditors. Failure to subordinate the Subordinated Equity s could result in the relevant claimants receiving an unwarranted recovery against the Debtors to the detriment of the Debtors other creditors. Accordingly, the Debtors respectfully request entry of an order subordinating the Subordinated Equity s identified on Schedule 1 to the Order to all claims that are senior or equal to claims arising from the purchase or sale of a security of FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.), provided that if such security is common stock, the applicable Subordinated Equity will have the same priority as common stock in FAH Liquidating Corp. The Debtors further reserve their right to object to the Subordinated Equity s on any grounds whatsoever. II. Non-Debtor Equity s 12. The Debtors have reviewed the Non-Debtor Equity s identified on Schedule 2 to the Order and have determined that each Non-Debtor Equity must be disallowed and expunged because the holder of each Non-Debtor Equity is not listed on the Debtors shareholder registry and the Debtors, after reasonable investigation, have been unable to identify such holder as a direct holder of an equity interest in the Debtors. While many of the Non-Debtor Equity s did not attach supporting documentation, the available documentation indicates that the applicable putative creditors are asserting claims on account of KE

7 Case KG Doc 936 Filed 05/27/14 Page 7 of 14 equity interests held in various entities that in turn hold interests in FAH Liquidating Corp. as opposed to actual ownership of interests in FAH Liquidating Corp. itself. 13. For example, No. 124 asserts a claim based on an equity stake in AEI Fisker Investments IV, LLC, a Delaware limited liability company not affiliated with the Debtors, which itself holds the interests in FAH Liquidating Corp. As a result, such party s interests lie solely with those entities actually holding interests in FAH Liquidating Corp. Failure to disallow and expunge the Non-Debtor Equity s could result in the relevant claimants receiving an unwarranted recovery against the Debtors to the detriment of other similarly situated creditors. Accordingly, the Debtors respectfully request entry of an order disallowing and expunging those Non-Debtor Equity s identified on Schedule 2 to the Order, and the Debtors reserve their right to object to the Non-Debtor Equity s on any grounds whatsoever. 5 III. Equity Interest s 14. The Debtors have reviewed the Equity Interest s identified on Schedule 3 to the Order and have determined that each Equity Interest, to the extent any portion of the is not a Subordinated Equity or a Non-Debtor Equity, asserts claims against the Debtors on account of equity interests in the Debtors, rather than s. Accordingly, each of the Equity Interest s identified on Schedule 3 to the Order should be expunged from the claims register maintained in these chapter 11 cases and reclassified as an equity interest in FAH Liquidating Corp. 5 Additionally, to the extent any of the Debtors objections to the Non-Debtor Equity s identified on Schedule 2 to the Order are overruled, each of the Non-Debtor Equity s assert claims (a) for damages arising from the purchase or sale of equity securities; or (b) against the Debtors on account of equity interests, rather than s, and thus should be either be, respectively, (x) subordinated; or (y) expunged from the claims register and reclassified as an equity interest for the reasons set forth in this Objection. The Debtors expressly identify the appropriate alternative treatment for each Non-Debtor Equity on Schedule 2 to the Order in the column titled Reason for Disallowance and Expungement. KE

8 Case KG Doc 936 Filed 05/27/14 Page 8 of Failure to expunge the Equity Interest s from the claims register could result in the relevant claimants receiving unwarranted recoveries against the Debtors to the detriment of the Debtors senior stakeholders. Moreover, elimination of such Equity Interest s will enable the Debtors to maintain a more accurate claims register. Accordingly, the Debtors respectfully request entry of an order expunging the Equity Interest s identified on Schedule 3 to the Order from the claims register. IV. Reclassification s 16. The Debtors have reviewed the Reclassification s identified on Schedule 4 to the Order and have determined that each Reclassification asserted a priority not reflected in the Debtors books and records and not supported under the Bankruptcy Code. Failure to reclassify the Reclassification s could result in the relevant claimants receiving an unwarranted recovery against the Debtors. Accordingly, the Debtors respectfully request entry of an order reclassifying each Reclassification as a with the priority identified in the column labeled Modified Classification on Schedule 4 to the Order. Basis for Relief 17. Section 502(a) of the Bankruptcy Code provides that [a] claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest... objects. 11 U.S.C. 502(a). A debtor in possession has the duty to object to the allowance of any claim that is improper. See 11 U.S.C. 1106(a)(1). 18. As set forth in Bankruptcy Rule 3001(f), a properly executed and filed proof of claim constitutes prima facie evidence of the validity and the amount of the claim under section 502(a) of the Bankruptcy Code. See In re Allegheny Int l, Inc., 954 F.2d 167, 173 (3d Cir. 1992). To receive the benefit of prima facie validity, however, the proof of claim must set forth facts necessary to support the claim. In re Stoecker, 143 B.R. 879, 883 (N.D. KE

9 Case KG Doc 936 Filed 05/27/14 Page 9 of 14 Ill. 1992), aff d in part, vacated in part by 5 F.3d 1022 (7th Cir. 1993). Additionally, a claimant s proof of claim is entitled to the presumption of prima facie validity under Bankruptcy Rule 3001(f) only until an objecting party refutes at least one of the allegations that is essential to the claim s legal sufficiency. See In re Relford, 323 B.R. 669, (Bankr. S.D. Ind. 2004). Once such an allegation is refuted, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence. Allegheny Int l, 954 F.2d at 173. In other words, once the prima facie validity of a claim is rebutted, it is for the claimant to prove his claim, not for the objector to disprove it. In re Kahn, 114 B.R. 40, 44 (Bankr. S.D.N.Y. 1990) (citations omitted). 19. For the reasons set forth herein and in the Kapko Declaration, the Court should disallow, expunge, reclassify, and/or subordinate the Disputed s, as requested herein. If the Disputed s are not formally disallowed, expunged, reclassified, and/or subordinated, the potential exists for the applicable claimants to receive recoveries to which they are not entitled, to the detriment of the Debtors other stakeholders. Thus, the relief requested herein is necessary to prevent any inappropriate distribution of estate funds and to facilitate the administration of the claims allowance process. Compliance with Bankruptcy Rule 3007(e) 20. The Debtors respectfully submit that this Objection complies with the requirements for omnibus objections set forth by Bankruptcy Rule 3007(e). Namely, among other things, the Objection conspicuously states that claimants receiving the objection should locate their names and claims in the objection, contains objections to no more than 100 proofs of claim, and identifies this Objection as the Debtors third omnibus claims objection. Additionally, the proposed form of Order identifies each claimant by category of claims subject to objection. Accordingly, the Debtors respectfully submit that this Objection complies with KE

10 Case KG Doc 936 Filed 05/27/14 Page 10 of 14 Bankruptcy Rule 3007(e). To the extent that this Objection does not comply in all respects with the requirements of Bankruptcy Rule 3007(e), the undersigned believes such deviations are not material and respectfully requests that any such requirement be waived. Separate Contested Matter 21. Each of the above objections to the proofs of claim constitutes a separate contested matter as contemplated by Bankruptcy Rule The Debtors request that any order entered by the Court with respect to an objection asserted herein shall be deemed a separate order with respect to each. Responses to Omnibus Objections 22. To contest this Objection, a claimant must file and serve a written response to this Objection (a Response ) so that it is received no later than 4:00 p.m. (prevailing Eastern Time) on June 10, 2014 (the Response Deadline ). Each Response must be filed with the Office of the Clerk of the United States Bankruptcy Court for the District of Delaware: 824 Market Street, Wilmington, Delaware 19801, and served upon the following entities, so that the Response is received no later than the Response Deadline, at the following address: information: Attn: Benjamin M. Rhode Kirkland & Ellis LLP 300 North LaSalle Street Chicago, Illinois Each Response to this Objection must contain at a minimum the following (a) (b) a caption setting forth the name of the Court, the name of the Debtor or Debtors, the case number, and the title of the Objection to which the Response is directed; the name of the claimant, his/her/its claim number, and a description of the basis for the amount of the ; KE

11 Case KG Doc 936 Filed 05/27/14 Page 11 of 14 (c) (d) (e) the specific factual basis and supporting legal argument upon which the party will rely in opposing this Objection; any supporting documentation, to the extent it was not included with the proof of claim previously filed with the clerk or claims agent, upon which the party will rely to support the basis for and amounts asserted in the proof of claim; and the name, address, telephone number, and fax number of the person(s) (which may be the claimant or the claimant s legal representative) with whom counsel for the Debtors should communicate with respect to the or the Objection and who possesses authority to reconcile, settle, or otherwise resolve the objection to the disputed claim on behalf of the claimant. 24. If a claimant fails to file and serve a timely Response by the Response Deadline, the Debtors may present to the Court an appropriate order disallowing, expunging, reclassifying, and/or subordinating the claim, without further notice to the claimant or a hearing. Replies to Responses 25. Consistent with Local Rule 9006-l(d), the Debtors may, at their option, file and serve a reply to a Response no later than 4:00 p.m. (prevailing Eastern Time) one day prior to the deadline for filing the agenda on any hearing to consider the Objection. Reservation of Rights 26. The Debtors expressly reserve the right to amend, modify, or supplement this Objection and to file additional substantive (to the extent allowable by the Court) or non-substantive objections to the s objected to herein, or any other s, filed or not, which may be asserted against the Debtors. In particular to conserve property of these chapter 11 estates the Debtors have not made specific inquiry into the underlying merits of the Equity s, including the amounts asserted, the validity of any of the underlying actions, the amount of damages (if any), or any other defenses thereto. Accordingly, should one or more of the grounds of objection stated in this Objection be overruled, the Debtors reserve the right to KE

12 Case KG Doc 936 Filed 05/27/14 Page 12 of 14 object on any other applicable grounds. In addition, the Debtors reserve the right to seek to reduce any for any reason, including to the extent such has been paid. The Debtors reserve the right to raise further objections, including objections under section 502(d) of the Bankruptcy Code. To the maximum extent allowable by the Court, nothing in this Objection or the relief requested herein shall limit the right of the Debtors to bring future and/or additional objections to any of the Equity s or Reclassification s, on any basis. Compliance With Local Rule To the best of the Debtors knowledge and belief, this Objection and the Schedules attached to the Order comply with Local Rule To the extent that this Objection does not comply in all respects with the requirements of Local Rule , the undersigned believes such deviations are not material and respectfully requests that any such requirement be waived. Notice 28. Notice of this Motion shall be provided to: (a) the Office of the United States Trustee for the District of Delaware; (b) counsel to the Committee; (c) counsel to PNC Bank, N.A., d/b/a Midland Loan Services, a division of PNC Bank, N.A., as successor by merger to Midland Loan Services, Inc., as collateral agent under that certain Amended and Restated Collateral Agency Agreement dated as of July 30, 2010; (d) the Internal Revenue Service; (e) the United States Department of Energy; (f) Silicon Valley Bank; (g) the Delaware Economic Development Authority; (h) counsel to the United States Department of Energy; (i) counsel to Hybrid Technology, LLC; (j) counsel to Hybrid Tech Holdings, LLC; (k) counsel to Wanxiang America Corporation; (l) holders of Disputed s identified on Schedules 1 4 to the Order or the applicable proof of claim; and (m) any party that has requested notice pursuant to Bankruptcy KE

13 Case KG Doc 936 Filed 05/27/14 Page 13 of 14 Rule The Debtors submit that, in light of the nature of the relief requested, no other or further notice need be given. No Prior Request 29. No prior motion for the relief requested herein has been made to this or any other court. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] KE

14 Case KG Doc 936 Filed 05/27/14 Page 14 of 14 WHEREFORE, for the reasons set forth herein, the Debtors respectfully request that the Court enter the Order, substantially in the form attached hereto as Exhibit A, granting the relief requested herein and such other and further relief as the Court deems appropriate. Dated: May 27, 2014 /s/ Peter J. Keane Wilmington, Delaware Laura Davis Jones (DE Bar No. 2436) James E. O Neill (DE Bar No. 4042) Peter J. Keane (DE Bar No. 5503) PACHULSKI STANG ZIEHL & JONES LLP 919 North Market Street, 17th Floor P.O. Box 8705 Wilmington, Delaware (Courier 19801) Telephone: (302) Facsimile: (302) ljones@pszjlaw.com joneill@pszjlaw.com pkeane@pszjlaw.com - and - James H.M. Sprayregen, P.C. (admitted pro hac vice) Anup Sathy, P.C. (admitted pro hac vice) Ryan Preston Dahl (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois Telephone: (312) Facsimile: (312) james.sprayregen@kirkland.com anup.sathy@kirkland.com ryan.dahl@kirkland.com Attorneys for the Debtors and Debtors in Possession KE

15 Case KG Doc Filed 05/27/14 Page 1 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) In re: ) Chapter 11 ) FAH LIQUIDATING CORP., et al., 1 ) Case No (KG) (f/k/a FISKER AUTOMOTIVE ) HOLDINGS, INC.) ) (Jointly Administered) ) Debtors. ) Hearing Date: ) July 15, 10:00 a.m. (ET) ) ) Objection Deadline: ) June 10, 4:00 p.m. (ET) ) NOTICE OF DEBTORS THIRD OMNIBUS OBJECTION TO CERTAIN PROOFS OF CLAIM (EQUITY CLAIMS AND RECLASSIFICATION CLAIMS) (SUBSTANTIVE) To: (a) the Office of the United States Trustee for the District of Delaware; (b) counsel to the Committee; (c) counsel to PNC Bank, N.A., d/b/a Midland Loan Services, a division of PNC Bank, N.A., as successor by merger to Midland Loan Services, Inc., as collateral agent under that certain Amended and Restated Collateral Agency Agreement dated as of July 30, 2010; (d) the Internal Revenue Service; (e) the United States Department of Energy; (f) Silicon Valley Bank; (g) the Delaware Economic Development Authority; (h) counsel to the United States Department of Energy; (i) counsel to Hybrid Technology, LLC; (j) counsel to Hybrid Tech Holdings, LLC; (k) counsel to Wanxiang America Corporation; (l) holders of Disputed s identified on Schedules 1 4 to the Order or the applicable proof of claim; and (m) any party that has requested notice pursuant to Bankruptcy Rule PLEASE TAKE NOTICE that on May 27, 2014, the above-captioned debtors (collectively, the Debtors ), filed the Debtors Third Omnibus Objection to Certain Proofs of (Equity s and Reclassification of s) (Substantive) (the Third Omnibus Objection ) with the Clerk of the United States Bankruptcy Court for the District of Delaware. A copy of the Third Omnibus Objection is attached hereto. 1 The Debtors, together with the last four digits of each Debtor s federal tax identification number, are: FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.) (9678); and FA Liquidating Corp. (f/k/a Fisker Automotive, Inc.) (9075). For the purpose of these chapter 11 cases, the service address for the Debtors is: 3080 Airway Avenue, Costa Mesa, California DOCS_DE:

16 Case KG Doc Filed 05/27/14 Page 2 of 3 PLEASE TAKE FURTHER NOTICE that any response or objection to the relief sought in the Third Omnibus Objection must be filed with the Bankruptcy Court on or before June 10, 2014 at 4:00 p.m. (prevailing Eastern Time). PLEASE TAKE FURTHER NOTICE that at the same time, you must also serve a copy of the response or objection upon: (i) counsel to the Debtors: (a) Kirkland & Ellis LLP, 300 North LaSalle, Chicago, IL 60654, Attn: James H.M. Sprayregen, P.C., Esquire, james.sprayregen@kirkland.com, Facsimile: (212) ; Anup Sathy, P.C., Esquire, asathy@kirkland.com, Facsimile: (312) ; and Ryan Preston Dahl, Esquire, ryan.dahl@kirkland.com, Facsimile: (312) ; and (b) Pachulski Stang Ziehl & Jones, LLP, 919 North Market Street, 17 th Floor, Wilmington, Delaware 19801, Attn: Laura Davis Jones, Esquire, ljones@pszjlaw.com, Facsimile: (302) ; (ii) counsel to the Official Committee of Unsecured Creditors: (a) Brown Rudnick LLP, Seven Times Square, New York, NY 10036, Attn: William R. Baldiga, Esquire, wbaldiga@brownrudnick.com, Facsimile: (212) ; and (b) Saul Ewing LLP, 222 Delaware Avenue, Suite 1200, P.O. Box 1266, Wilmington, Delaware 19899, Attn: Mark Minuti, Esquire, mminuti@saul.com, Facsimile: (302) ; and Lucian B. Murley, Esquire, lmurley@saul.com, Facsimile: (302) ; and (iii) the Office of the United States Trustee, 844 King Street, Suite 2207, Lockbox 35, Wilmington, DE Attn: Mark Kenney, Esquire, Mark.Kenney@usdoj.gov, Facsimile: (302) PLEASE TAKE FURTHER NOTICE THAT IF YOU FAIL TO RESPOND IN ACCORDANCE WITH THIS NOTICE, THE COURT MAY GRANT THE RELIEF REQUESTED IN THE THIRD OMNIBUS OBJECTION WITHOUT FURTHER NOTICE OR HEARING. DOCS_DE:

17 Case KG Doc Filed 05/27/14 Page 3 of 3 PLEASE TAKE FURTHER NOTICE THAT, IF OBJECTIONS OR RESPONSES ARE TIMELY FILED AND SERVED IN ACCORDANCE WITH THIS NOTICE, A HEARING ON THE THIRD OMNIBUS OBJECTION WILL BE HELD BEFORE THE HONORABLE KEVIN GROSS, CHIEF UNITED STATES BANKRUPTCY JUDGE, AT THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE, 824 MARKET STREET, 6TH FLOOR, COURTROOM NO. 3, WILMINGTON, DELAWARE ON JULY 15, 2014 AT 10:00 A.M. (PREVAILING EASTERN TIME). Dated: May 27, 2014 /s/ Peter J. Keane Wilmington, Delaware Laura Davis Jones (DE Bar No. 2436) James E. O Neill (DE Bar No. 4042) Peter J. Keane (DE Bar No. 5503) PACHULSKI STANG ZIEHL & JONES LLP 919 North Market Street, 17th Floor P.O. Box 8705 Wilmington, Delaware (Courier 19801) Telephone: (302) Facsimile: (302) ljones@pszjlaw.com joneill@pszjlaw.com pkeane@pszjlaw.com - and - James H.M. Sprayregen, P.C. (admitted pro hac vice) Anup Sathy, P.C. (admitted pro hac vice) Ryan Preston Dahl (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois Telephone: (312) Facsimile: (312) james.sprayregen@kirkland.com anup.sathy@kirkland.com ryan.dahl@kirkland.com Attorneys for the Debtors and Debtors in Possession DOCS_DE:

18 Case KG Doc Filed 05/27/14 Page 1 of 39 EXHIBIT A Proposed Order KE

19 Case KG Doc Filed 05/27/14 Page 2 of 39 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) In re: ) Chapter 11 ) FAH LIQUIDATING CORP., et al., 1 ) Case No (KG) (f/k/a FISKER AUTOMOTIVE ) HOLDINGS, INC.) ) ) (Jointly Administered) Debtors. ) ) Re: Docket No. ORDER GRANTING DEBTORS THIRD OMNIBUS OBJECTION TO CERTAIN PROOFS OF CLAIM (EQUITY CLAIMS AND RECLASSIFICATION CLAIMS) (SUBSTANTIVE) Upon the objection (the Objection ) 2 of the above-captioned debtors and debtors in possession (collectively, the Debtors ) for entry of an order (this Order ) disallowing, expunging, reclassifying, and/or subordinating the Disputed s identified on Schedules 1 4 attached hereto, pursuant to section 502 of the Bankruptcy Code, Bankruptcy Rules 3007, 3013, and 9014, and Local Rules and (d), all as more fully set forth in the Objection; and this Court having jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware, dated February 29, 2012; and this Court having found that this is a core proceeding pursuant to 28 U.S.C. 157(b)(2), and that this Court may enter a final order consistent with Article III of the United States Constitution; and this Court having found that venue of this proceeding and the Objection in this district is proper pursuant to 28 U.S.C and 1409; and this Court having found that the relief requested in the Objection is in the best interests of the 1 2 The Debtors, together with the last four digits of each Debtor s federal tax identification number, are: FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.) (9678); and FA Liquidating Corp. (f/k/a Fisker Automotive, Inc.) (9075). For the purpose of these chapter 11 cases, the service address for the Debtors is: 3080 Airway Avenue, Costa Mesa, California Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Objection. KE

20 Case KG Doc Filed 05/27/14 Page 3 of 39 Debtors estates, their creditors, and other parties in interest; and this Court having found that the Debtors notice of the Objection and opportunity for a hearing on the Motion were appropriate and no other notice need be provided; and this Court having reviewed the Objection and the Kapko Declaration and having heard the statements in support of the relief requested therein at a hearing before this Court (the Hearing ); and this Court having determined that the legal and factual bases set forth in the Objection and at the Hearing establish just cause for the relief granted herein; and upon all of the proceedings had before this Court; and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 1. The Objection is granted as set forth herein. 2. Any response to the Objection not otherwise withdrawn, resolved, or adjourned is hereby overruled on its merits. 3. The Subordinated Equity s identified on Schedule 1 attached hereto are subordinated to all claims that are senior or equal to claims arising from the purchase or sale of a security of FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.), provided that if such security is common stock, the applicable Subordinated Equity has the same priority as common stock in FAH Liquidating Corp. 4. The Non-Debtor Equity s identified on Schedule 2 attached hereto are disallowed and expunged in their entirety. 5. The Equity Interest s identified on Schedule 3 attached hereto are expunged and reclassified as equity interests in FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.). KE

21 Case KG Doc Filed 05/27/14 Page 4 of The Reclassification s identified on Schedule 4 attached hereto are reclassified to the priorities identified in the column entitled Modified Classification in Schedule 4 attached hereto. 7. Rust Consulting/Omni Bankruptcy, the Debtors notice and claims agent, is authorized and directed to update the claims register to reflect the relief granted in this Order. 8. The requirement of Local Rule (f)(iii) that an objection based on substantive grounds shall include all substantive objections to such claims is hereby waived, and entry of this Order is without prejudice to the Debtors right to object to any other s in these chapter 11 cases or to further object to the Disputed s, on any grounds whatsoever, at a later date. 9. Each Disputed and any objection by the Debtors to such Disputed, as addressed in the Objection and set forth on Schedules 1 4 attached hereto, constitute a separate contested matter as contemplated by Bankruptcy Rule This Order shall be deemed a separate Order with respect to each Disputed. Any stay of this Order pending appeal by any Disputed ant whose Disputed is subject to this Order shall only apply to the contested matter which involves such Disputed ant and shall not act to stay the applicability or finality of this Order with respect to the other contested matters identified in the Objection or this Order. 10. The terms and conditions of this Order shall be immediately effective and enforceable upon its entry. 11. The Debtors are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Objection. KE

22 Case KG Doc Filed 05/27/14 Page 5 of This Court retains exclusive jurisdiction with respect to all matters arising from or related to the implementation, interpretation, and enforcement of this Order. Dated:, 2014 Wilmington, Delaware The Honorable Kevin Gross Chief United States Bankruptcy Judge KE

23 Case KG Doc Filed 05/27/14 Page 6 of 39 SCHEDULE 1 Subordinated Equity s KE

24 Case KG Doc Filed 05/27/14 Page 7 of FISKER AUTOMOTIVE HOLDINGS, INC. CASE NO (JOINTLY ADMINISTERED) SUBSTANTIVE THIRD OMNIBUS OBJECTION TO SUBORDINATED EQUITY CLAIMS - SCHEDULE 1 Name of ant Number Asserted Amount/ Classification* Subordinated Amount/Classification Filed in Case(s)* Reason for Subordination Other Schedules Including This Objection Page Nos INVESTMENTS GMBH ATTN: PAUL SCHERER RIEDSTRASSE 7 CH-6330 CHAM SWITZERLAND 465 $4,612, GUC $4,612, (b) $4,612, $4,612, The is filed on account of damages arising in connection with alleged securities laws violations or otherwise arising from the purchase or sale of securities and should therefore be subordinated pursuant to section 510(b) of the Bankruptcy Code. pp AEI 2010 CLEANTECH VENTURES I, LLC BENMAN HOLDINGS, LLC C/O SOUTHPORT LANE ATTN: ANDREW SCHERR 350 MADISON AVE, FL. 21 NEW YORK, NY $5,122, GUC $5,122, (b) $5,122, $5,122, The asserts both a liquidated amount on account of the ants alleged liquidation preference for certain issuances of the Debtors preferred stock, as well as alleged unliquidated damages. The unliquidated damages portion of the is filed on account of damages arising in connection with alleged securities laws violations or otherwise arising from the purchase or sale of securities and should therefore be subordinated pursuant to section 510(b) of the Bankruptcy Code. As set forth on Schedule 3, the Debtors are also seeking to expunge the remaining liquidated portion of the from the claims register and reclassify it as an equity interest. 3 pp. 4-6 * - See Class Code and Debtor Case Number Legends at the end of this report ** - "No Amt Given" includes, without limitation, Undetermined, Unliquidated, Unknown, To be Determined or the like or when no amount is listed at all Page 1 of 13

25 Case KG Doc Filed 05/27/14 Page 8 of 39 FISKER AUTOMOTIVE HOLDINGS, INC. CASE NO (JOINTLY ADMINISTERED) SUBSTANTIVE THIRD OMNIBUS OBJECTION TO SUBORDINATED EQUITY CLAIMS - SCHEDULE 1 Name of ant Number Asserted Amount/ Classification* Subordinated Amount/Classification Filed in Case(s)* Reason for Subordination Other Schedules Including This Objection Page Nos. 3 AEI 2010 CLEANTECH VENTURES I-2, LLC BENMAN HOLDINGS, LLC C/O SOUTHPORT LANE ATTN: ANDREW SCHERR 350 MADISON AVE, FL. 21 NEW YORK, NY $64, GUC $64, (b) $64, $64, The asserts both a liquidated amount on account of the ants alleged liquidation preference for certain issuances of the Debtors preferred stock, as well as alleged unliquidated damages. The unliquidated damages portion of the is filed on account of damages arising in connection with alleged securities laws violations or otherwise arising from the purchase or sale of securities and should therefore be subordinated pursuant to section 510(b) of the Bankruptcy Code. As set forth on Schedule 3, the Debtors are also seeking to expunge the remaining liquidated portion of the from the claims register and reclassify it as an equity interest. 3 pp AEI 2010 CLEANTECH VENTURES II, LLC BENMAN HOLDINGS, LLC C/O SOUTHPORT LANE ATTN: ANDREW SCHERR 350 MADISON AVE, FL. 21 NEW YORK, NY $10,979, GUC $10,979, (b) $10,979, $10,979, The asserts both a liquidated amount on account of the ants alleged liquidation preference for certain issuances of the Debtors preferred stock, as well as alleged unliquidated damages. The unliquidated damages portion of the is filed on account of damages arising in connection with alleged securities laws violations or otherwise arising from the purchase or sale of securities and should therefore be subordinated pursuant to section 510(b) of the Bankruptcy Code. As set forth on Schedule 3, the Debtors are also seeking to expunge the remaining liquidated portion of the from the claims register and reclassify it as an equity interest. 3 pp. 4-6 * - See Class Code and Debtor Case Number Legends at the end of this report ** - "No Amt Given" includes, without limitation, Undetermined, Unliquidated, Unknown, To be Determined or the like or when no amount is listed at all Page 2 of 13

26 Case KG Doc Filed 05/27/14 Page 9 of 39 FISKER AUTOMOTIVE HOLDINGS, INC. CASE NO (JOINTLY ADMINISTERED) SUBSTANTIVE THIRD OMNIBUS OBJECTION TO SUBORDINATED EQUITY CLAIMS - SCHEDULE 1 Name of ant Number Asserted Amount/ Classification* Subordinated Amount/Classification Filed in Case(s)* Reason for Subordination Other Schedules Including This Objection Page Nos. 5 AEI FISKER INVESTMENTS I, LLC BENMAN HOLDINGS, LLC C/O SOUTHPORT LANE ATTN: ANDREW SCHERR 350 MADISON AVE, FL. 21 NEW YORK, NY $14,049, GUC $14,049, (b) $14,049, $14,049, The asserts both a liquidated amount on account of the ants alleged liquidation preference for certain issuances of the Debtors preferred stock, as well as alleged unliquidated damages. The unliquidated damages portion of the is filed on account of damages arising in connection with alleged securities laws violations or otherwise arising from the purchase or sale of securities and should therefore be subordinated pursuant to section 510(b) of the Bankruptcy Code. As set forth on Schedule 3, the Debtors are also seeking to expunge the remaining liquidated portion of the from the claims register and reclassify it as an equity interest. 3 pp AEI FISKER INVESTMENTS I-2, LLC BENMAN HOLDINGS, LLC C/O SOUTHPORT LANE ATTN: ANDREW SCHERR 350 MADISON AVE, FL. 21 NEW YORK, NY $761, GUC $761, (b) $761, $761, The asserts both a liquidated amount on account of the ants alleged liquidation preference for certain issuances of the Debtors preferred stock, as well as alleged unliquidated damages. The unliquidated damages portion of the is filed on account of damages arising in connection with alleged securities laws violations or otherwise arising from the purchase or sale of securities and should therefore be subordinated pursuant to section 510(b) of the Bankruptcy Code. As set forth on Schedule 3, the Debtors are also seeking to expunge the remaining liquidated portion of the from the claims register and reclassify it as an equity interest. 3 pp. 4-6 * - See Class Code and Debtor Case Number Legends at the end of this report ** - "No Amt Given" includes, without limitation, Undetermined, Unliquidated, Unknown, To be Determined or the like or when no amount is listed at all Page 3 of 13

27 Case KG Doc Filed 05/27/14 Page 10 of 39 FISKER AUTOMOTIVE HOLDINGS, INC. CASE NO (JOINTLY ADMINISTERED) SUBSTANTIVE THIRD OMNIBUS OBJECTION TO SUBORDINATED EQUITY CLAIMS - SCHEDULE 1 Name of ant Number Asserted Amount/ Classification* Subordinated Amount/Classification Filed in Case(s)* Reason for Subordination Other Schedules Including This Objection Page Nos. 7 AEI FISKER INVESTMENTS II, LLC BENMAN HOLDINGS, LLC C/O SOUTHPORT LANE ATTN: ANDREW SCHERR 350 MADISON AVE, FL. 21 NEW YORK, NY $56,975, GUC $56,975, (b) $56,975, $56,975, The asserts both a liquidated amount on account of the ants alleged liquidation preference for certain issuances of the Debtors preferred stock, as well as alleged unliquidated damages. The unliquidated damages portion of the is filed on account of damages arising in connection with alleged securities laws violations or otherwise arising from the purchase or sale of securities and should therefore be subordinated pursuant to section 510(b) of the Bankruptcy Code. As set forth on Schedule 3, the Debtors are also seeking to expunge the remaining liquidated portion of the from the claims register and reclassify it as an equity interest. 3 pp AEI FISKER INVESTMENTS III, LLC BENMAN HOLDINGS, LLC C/O SOUTHPORT LANE ATTN: ANDREW SCHERR 350 MADISON AVE, FL. 21 NEW YORK, NY $11,817, GUC $11,817, (b) $11,817, $11,817, The asserts both a liquidated amount on account of the ants alleged liquidation preference for certain issuances of the Debtors preferred stock, as well as alleged unliquidated damages. The unliquidated damages portion of the is filed on account of damages arising in connection with alleged securities laws violations or otherwise arising from the purchase or sale of securities and should therefore be subordinated pursuant to section 510(b) of the Bankruptcy Code. As set forth on Schedule 3, the Debtors are also seeking to expunge the remaining liquidated portion of the from the claims register and reclassify it as an equity interest. 3 pp. 4-6 * - See Class Code and Debtor Case Number Legends at the end of this report ** - "No Amt Given" includes, without limitation, Undetermined, Unliquidated, Unknown, To be Determined or the like or when no amount is listed at all Page 4 of 13

28 Case KG Doc Filed 05/27/14 Page 11 of 39 FISKER AUTOMOTIVE HOLDINGS, INC. CASE NO (JOINTLY ADMINISTERED) SUBSTANTIVE THIRD OMNIBUS OBJECTION TO SUBORDINATED EQUITY CLAIMS - SCHEDULE 1 Name of ant Number Asserted Amount/ Classification* Subordinated Amount/Classification Filed in Case(s)* Reason for Subordination Other Schedules Including This Objection Page Nos. 9 AEI FISKER INVESTMENTS III-2, LLC BENMAN HOLDINGS, LLC C/O SOUTHPORT LANE ATTN: ANDREW SCHERR 350 MADISON AVE, FL. 21 NEW YORK, NY $606, GUC $606, (b) $606, $606, The asserts both a liquidated amount on account of the ants alleged liquidation preference for certain issuances of the Debtors preferred stock, as well as alleged unliquidated damages. The unliquidated damages portion of the is filed on account of damages arising in connection with alleged securities laws violations or otherwise arising from the purchase or sale of securities and should therefore be subordinated pursuant to section 510(b) of the Bankruptcy Code. As set forth on Schedule 3, the Debtors are also seeking to expunge the remaining liquidated portion of the from the claims register and reclassify it as an equity interest. 3 pp AEI FISKER INVESTMENTS IV, LLC BENMAN HOLDINGS, LLC C/O SOUTHPORT LANE ATTN: ANDREW SCHERR 350 MADISON AVE, FL. 21 NEW YORK, NY $41,997, GUC $41,997, (b) $41,997, $41,997, The asserts both a liquidated amount on account of the ants alleged liquidation preference for certain issuances of the Debtors preferred stock, as well as alleged unliquidated damages. The unliquidated damages portion of the is filed on account of damages arising in connection with alleged securities laws violations or otherwise arising from the purchase or sale of securities and should therefore be subordinated pursuant to section 510(b) of the Bankruptcy Code. As set forth on Schedule 3, the Debtors are also seeking to expunge the remaining liquidated portion of the from the claims register and reclassify it as an equity interest. 3 pp. 4-6 * - See Class Code and Debtor Case Number Legends at the end of this report ** - "No Amt Given" includes, without limitation, Undetermined, Unliquidated, Unknown, To be Determined or the like or when no amount is listed at all Page 5 of 13

29 Case KG Doc Filed 05/27/14 Page 12 of 39 FISKER AUTOMOTIVE HOLDINGS, INC. CASE NO (JOINTLY ADMINISTERED) SUBSTANTIVE THIRD OMNIBUS OBJECTION TO SUBORDINATED EQUITY CLAIMS - SCHEDULE 1 Name of ant Number Asserted Amount/ Classification* Subordinated Amount/Classification Filed in Case(s)* Reason for Subordination Other Schedules Including This Objection Page Nos. 11 AEI FISKER IX, LLC BENMAN HOLDINGS, LLC C/O SOUTHPORT LANE ATTN: ANDREW SCHERR 350 MADISON AVE, FL. 21 NEW YORK, NY $2,370, GUC $2,370, (b) $2,370, $2,370, The asserts both a liquidated amount on account of the ants alleged liquidation preference for certain issuances of the Debtors preferred stock, as well as alleged unliquidated damages. The unliquidated damages portion of the is filed on account of damages arising in connection with alleged securities laws violations or otherwise arising from the purchase or sale of securities and should therefore be subordinated pursuant to section 510(b) of the Bankruptcy Code. As set forth on Schedule 3, the Debtors are also seeking to expunge the remaining liquidated portion of the from the claims register and reclassify it as an equity interest. 3 pp AEI FISKER V, LLC BENMAN HOLDINGS, LLC C/O SOUTHPORT LANE ATTN: ANDREW SCHERR 350 MADISON AVE, FL. 21 NEW YORK, NY $73, GUC $73, (b) $73, $73, The asserts both a liquidated amount on account of the ants alleged liquidation preference for certain issuances of the Debtors preferred stock, as well as alleged unliquidated damages. The unliquidated damages portion of the is filed on account of damages arising in connection with alleged securities laws violations or otherwise arising from the purchase or sale of securities and should therefore be subordinated pursuant to section 510(b) of the Bankruptcy Code. As set forth on Schedule 3, the Debtors are also seeking to expunge the remaining liquidated portion of the from the claims register and reclassify it as an equity interest. 3 pp. 4-6 * - See Class Code and Debtor Case Number Legends at the end of this report ** - "No Amt Given" includes, without limitation, Undetermined, Unliquidated, Unknown, To be Determined or the like or when no amount is listed at all Page 6 of 13