Chapter 11 Treatment of Executive Compensation and Bonuses

Structuring Approvable KEIPs and KERPs, Surviving Objections

A live 90-minute CLE video webinar with interactive Q&A


Wednesday, November 17, 2021

1:00pm-2:30pm EST, 10:00am-11:30am PST

or call 1-800-926-7926

This CLE webinar is about key employee incentive plans (KEIPs), key employee retention plans (KERPs), and other executive compensation payments before, during, or after Chapter 11 bankruptcies. The panel will discuss the thin line between Bankruptcy Code Sections 503(c)(1) and (c)(3), how to create approvable programs, burdens of proof, and overcoming objections, taking examples from influential courts. The panel will also identify possible securities law issues for publicly traded companies.

Description

Prefiling executive retention and other performance-based awards shortly before or after bankruptcy are becoming the norm. Such payments may be subject to clawbacks under Bankruptcy Code Section 548. Corporate debtors may arrange a deal with their creditors behind the scenes to fend off a public fight before announcing a bonus plan to avoid these issues. They must understand the risks because the Bankruptcy Code provides creditors and other parties in interest with a potential and effective means of challenging restructuring compensation payments.

When seeking approval for KEIPs and KERPS, counsel must understand the applicable standards and burdens of proof under Bankruptcy Code Sections 503(c)(1) and (c)(3), as well as whether testimony and other evidence are sufficient to meet its burden. If proceeding under Section 503(c)(3), the proponent must show how the payment incentivized participation and are not hidden retention programs. Courts are unsettled regarding the meaning in Section 503(c)(3) of "justified by the facts and circumstances of the case."

Other stakeholders or U.S. Trustee objections may result in meaningful modification and reduction of these payments. Courts are required to consider many factors in approving incentive and retention payments. The structure of the plans, the treatment of each recipient, and platitudinous justifications are closely analyzed and require specific factual evidence to support.

Listen as this experienced panel of bankruptcy attorneys and restructuring compensation professionals guides counsel through executive compensation in Chapter 11.

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Outline

  1. Options for executive compensation before and after bankruptcy filing
  2. The importance of timing
  3. KEIP vs. KERP
  4. Requirements for approval
  5. Common objections
  6. Evidentiary issues

Benefits

The panel will review these and other pivotal issues:

  • How do courts decide whether a KEIP target genuinely incentivizes insiders?
  • What does "justified by the facts and circumstances of the case" in 503(c)(3) mean?
  • Are bonuses justified when parties have negotiated a pre-filing sale?
  • How should debtors document each person's contribution to a reorganization effort?
  • How should counsel document the achievement of milestones, if needed?
  • What are the methods to determine reasonable compensation amounts?

Faculty

Cumberland, Brian
Brian Cumberland

Managing Director
Alvarez & Marsal

Mr. Cumberland leads the firm's Restructuring Compensation practice. With over 30 years of...  |  Read More

Price, Scott
Scott D. Price, PC

Partner
Kirkland & Ellis

Mr. Price is a partner in the Firm’s Executive Compensation Practice Group. He has extensive...  |  Read More

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You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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