113 HR 100 IH: Protecting Employees and Retirees in Business Bankruptcies Act of 2013
U.S. House of Representatives
2013-01-03
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
1.Short title; table of
contents
(a)This Act may be cited
as the Protecting Employees and
Retirees in Business Bankruptcies Act of 2013
.
(b)The table of
contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Title I—Improving Recoveries for Employees and Retirees
Sec. 101. Increased wage priority.
Sec. 102. Claim for stock value losses in defined contribution
plans.
Sec. 103. Priority for severance pay.
Sec. 104. Financial returns for employees and
retirees.
Sec. 105. Priority for WARN Act damages.
Title II—Reducing Employees’ and Retirees’ Losses
Sec. 201. Rejection of collective bargaining
agreements.
Sec. 202. Payment of insurance benefits to retired
employees.
Sec. 203. Protection of employee benefits in a sale of
assets.
Sec. 204. Claim for pension losses.
Sec. 205. Payments by secured lender.
Sec. 206. Preservation of jobs and benefits.
Sec. 207. Termination of exclusivity.
Title III—Restricting Executive Compensation Programs
Sec. 301. Executive compensation upon exit from
bankruptcy.
Sec. 302. Limitations on executive compensation
enhancements.
Sec. 303. Assumption of executive benefit plans.
Sec. 304. Recovery of executive compensation.
Sec. 305. Preferential compensation transfer.
Title IV—Other Provisions
Sec. 401. Union proof of claim.
Sec. 402. Exception from automatic stay.
2.The Congress finds the following:
(1)Business
bankruptcies have increased sharply in recent years and remain at high levels.
These bankruptcies include several of the largest business bankruptcy filings
in history. As the use of bankruptcy has expanded, job preservation and
retirement security are placed at greater risk.
(2)Laws enacted to
improve recoveries for employees and retirees and limit their losses in
bankruptcy cases have not kept pace with the increasing and broader use of
bankruptcy by businesses in all sectors of the economy. However, while
protections for employees and retirees in bankruptcy cases have eroded,
management compensation plans devised for those in charge of troubled
businesses have become more prevalent and are escaping adequate
scrutiny.
(3)Changes in the law
regarding these matters are urgently needed as bankruptcy is used to address
increasingly more complex and diverse conditions affecting troubled businesses
and industries.
<enum>I</enum><header>Improving
Recoveries for Employees and Retirees </header>
<section id="H3D3EE18AAA124A1189257116FD23DA11"><enum>101.</enum><header>Increased wage
priority</header><text display-inline="no-display-inline">Section 507(a) of
title 11, United States Code, is amended—</text>
<paragraph id="HF85889A209FD49F9B1227543AD5089B0"><enum>(1)</enum><text display-inline="yes-display-inline">in paragraph (4)—</text>
<subparagraph id="HB5FD0D219CE842549115CA6819DB71B5"><enum>(A)</enum><text>by striking
<quote>$10,000</quote> and inserting <quote>$20,000</quote>;</text>
</subparagraph><subparagraph id="H509E7EEC952E486FA3C176B6683B66EC"><enum>(B)</enum><text>by striking
<quote>within 180 days</quote>; and</text>
</subparagraph><subparagraph id="H5DDB6BA1C1124ADE8AA0091ECA198BC5"><enum>(C)</enum><text>by striking
<quote>or the date of the cessation of the debtor’s business, whichever occurs
first,</quote>;</text>
</subparagraph></paragraph><paragraph id="H08F093E91C944EC6B7E3B4B044D24774"><enum>(2)</enum><text>in paragraph
(5)(A), by striking—</text>
<subparagraph id="HEE255854B06D4E6598986B59B4F03480"><enum>(A)</enum><text><quote>within 180
days</quote>; and</text>
</subparagraph><subparagraph id="HD2BE41618CE64EEA9076C55BA5CFAD59"><enum>(B)</enum><text><quote>or the date
of the cessation of the debtor’s business, whichever occurs first</quote>;
and</text>
</subparagraph></paragraph><paragraph id="H95841591E94044B0AE81DE366A256A3C"><enum>(3)</enum><text>in paragraph (5),
by striking subparagraph (B) and inserting the following:</text>
<quoted-block id="HAC703AF61809463785CED80D1371CF4D" style="OLC">
<subparagraph id="H19E9F1FDF73B41F2811F6B776BBC3AA2"><enum>(B)</enum><text>for each such
plan, to the extent of the number of employees covered by each such plan,
multiplied by
$20,000.</text>
</subparagraph><after-quoted-block>.</after-quoted-block></quoted-block>
</paragraph></section><section id="H3D04F93A96D244CFBF8E91C0BB355C7B"><enum>102.</enum><header>Claim for stock
value losses in defined contribution plans</header><text display-inline="no-display-inline"><external-xref legal-doc="usc" parsable-cite="usc/11/101">Section 101(5)</external-xref> of title 11, United States
Code, is amended—</text>
<paragraph id="HBABC08DEDAF1480988A155533027A0D8"><enum>(1)</enum><text>in subparagraph
(A), by striking <quote>or</quote> at the end;</text>
</paragraph><paragraph id="H8A4927ADC023449DA099FA6192F1394C"><enum>(2)</enum><text>in subparagraph
(B), by inserting <quote>or</quote> after the semicolon; and</text>
</paragraph><paragraph id="HABA7F80F5D6F464293DF3BF04D5B74AA"><enum>(3)</enum><text>by adding at the
end the following:</text>
<quoted-block display-inline="no-display-inline" id="H9A6A1BF6D38C4BABB8953197ADFC5F77" style="OLC">
<subparagraph id="HE66ED0BB81814A4499EB7433E65BF5A2"><enum>(C)</enum><text display-inline="yes-display-inline">right or interest in equity securities of
the debtor, or an affiliate of the debtor, held in a defined contribution plan
(within the meaning of section 3(34) of the Employee Retirement Income Security
Act of 1974 (<external-xref legal-doc="usc" parsable-cite="usc/29/1002">29 U.S.C. 1002(34)</external-xref>)) for the benefit of an individual who is not
an insider, a senior executive officer, or any of the 20 next most highly
compensated employees of the debtor (if one or more are not insiders), if such
securities were attributable to either employer contributions by the debtor or
an affiliate of the debtor, or elective deferrals (within the meaning of
<external-xref legal-doc="usc" parsable-cite="usc/26/402">section 402(g)</external-xref> of the Internal Revenue Code of 1986), and any earnings thereon,
if an employer or plan sponsor who has commenced a case under this title has
committed fraud with respect to such plan or has otherwise breached a duty to
the participant that has proximately caused the loss of
value.</text>
</subparagraph><after-quoted-block>.</after-quoted-block></quoted-block>
</paragraph></section><section id="H0344E8EE7F88464795390B5DD85FD84D"><enum>103.</enum><header>Priority for
severance pay</header><text display-inline="no-display-inline">Section 503(b)
of title 11, United States Code, is amended—</text>
<paragraph id="H0031BB7E4AA14B13B2655713D3B9256A"><enum>(1)</enum><text>in paragraph (8),
by striking <quote>and</quote> at the end;</text>
</paragraph><paragraph id="H5FBD8A29CFA040A7BB36520C6E34389F"><enum>(2)</enum><text>in paragraph (9),
by striking the period and inserting <quote>; and</quote>; and</text>
</paragraph><paragraph id="HE2D8F7785FB449C2AF7ACCFCAF646D52"><enum>(3)</enum><text>by adding at the
end the following:</text>
<quoted-block display-inline="no-display-inline" id="HF97C222FF6134297960897A2B1F6833D" style="OLC">
<paragraph id="H81C24571CEE642E7881D0FA997CE7353"><enum>(10)</enum><text display-inline="yes-display-inline">severance pay owed to employees of the
debtor (other than to an insider, other senior management, or a consultant
retained to provide services to the debtor), under a plan, program, or policy
generally applicable to employees of the debtor (but not under an individual
contract of employment), or owed pursuant to a collective bargaining agreement,
for layoff or termination on or after the date of the filing of the petition,
which pay shall be deemed earned in full upon such layoff or termination of
employment.</text>
</paragraph><after-quoted-block>.</after-quoted-block></quoted-block>
</paragraph></section><section id="H09B157C1BFE246E386EDD30D9556F948"><enum>104.</enum><header>Financial
returns for employees and retirees</header><text display-inline="no-display-inline"><external-xref legal-doc="usc" parsable-cite="usc/11/1129">Section 1129(a)</external-xref> of title 11, United States
Code is amended—</text>
<paragraph id="H6991A78D0B3D4D848870A851ACBD55F8"><enum>(1)</enum><text>by adding at the
end the following:</text>
<quoted-block id="HAF9836DB1B354C6FAE50234F2C198BB7" style="OLC">
<paragraph id="H29C7BB8542D04CDFB28F4996C0AA2EFC"><enum>(17)</enum><text>The plan provides
for recovery of damages payable for the rejection of a collective bargaining
agreement, or for other financial returns as negotiated by the debtor and the
authorized representative under section 1113 (to the extent that such returns
are paid under, rather than outside of, a
plan).</text>
</paragraph><after-quoted-block>;
and</after-quoted-block></quoted-block>
</paragraph><paragraph id="HB932687927F24D28AE67DFC44C81140C"><enum>(2)</enum><text>by striking
paragraph (13) and inserting the following:</text>
<quoted-block display-inline="no-display-inline" id="HD917065D4EB249ABB71531FB078CB8FD" style="OLC">
<paragraph id="H85549E2965C64922819F2F1DCCBE5FB1"><enum>(13)</enum><text display-inline="yes-display-inline">With respect to retiree benefits, as that
term is defined in section 1114(a), the plan—</text>
<subparagraph id="HDA28EF0DBE004147AD27F74EA750B3C7"><enum>(A)</enum><text>provides for the
continuation after its effective date of payment of all retiree benefits at the
level established pursuant to subsection (e)(1)(B) or (g) of section 1114 at
any time before the date of confirmation of the plan, for the duration of the
period for which the debtor has obligated itself to provide such benefits, or
if no modifications are made before confirmation of the plan, the continuation
of all such retiree benefits maintained or established in whole or in part by
the debtor before the date of the filing of the petition; and</text>
</subparagraph><subparagraph id="H9ADE686CA6CA468EA7FB6D1AA890C431"><enum>(B)</enum><text>provides for
recovery of claims arising from the modification of retiree benefits or for
other financial returns, as negotiated by the debtor and the authorized
representative (to the extent that such returns are paid under, rather than
outside of, a
plan).</text>
</subparagraph></paragraph><after-quoted-block>.</after-quoted-block></quoted-block>
</paragraph></section><section id="H074D2A3A5061401D8BC4B47EBBF46558"><enum>105.</enum><header>Priority for
WARN Act damages</header><text display-inline="no-display-inline">Section
503(b)(1)(A)(ii) of title 11, United States Code is amended to read as
follows:</text>
<quoted-block display-inline="no-display-inline" id="H334E6D861097451BB6FBF5AF55A34624" style="OLC">
<clause id="HFF4E03E196E44366814DED74598E99B1"><enum>(ii)</enum><text>wages and
benefits awarded pursuant to a judicial proceeding or a proceeding of the
National Labor Relations Board as back pay or damages attributable to any
period of time occurring after the date of commencement of the case under this
title, as a result of a violation of Federal or State law by the debtor,
without regard to the time of the occurrence of unlawful conduct on which the
award is based or to whether any services were rendered on or after the
commencement of the case, including an award by a court under section 2901 of
title 29, United States Code, of up to 60 days’ pay and benefits following a
layoff that occurred or commenced at a time when such award period includes a
period on or after the commencement of the case, if the court determines that
payment of wages and benefits by reason of the operation of this clause will
not substantially increase the probability of layoff or termination of current
employees or of nonpayment of domestic support obligations during the case
under this
title.</text>
</clause><after-quoted-block>.</after-quoted-block></quoted-block>
</section><enum>II</enum><header>Reducing
Employees’ and Retirees’ Losses</header>
<section id="H21C353DD30644C088AF6E73DC6ACA003"><enum>201.</enum><header>Rejection of
collective bargaining agreements</header><text display-inline="no-display-inline"><external-xref legal-doc="usc" parsable-cite="usc/11/1113">Section 1113</external-xref> of title 11, United States
Code, is amended by striking subsections (a) through (f) and inserting the
following:</text>
<quoted-block display-inline="no-display-inline" id="HA370686D2E4B43FAA1F1AA62D7B52B2F" style="OLC">
<subsection id="H1D63FAFC7C8D4AF2BFC370E59A5C4BFF"><enum>(a)</enum><text>The debtor in
possession, or the trustee if one has been appointed under this chapter, other
than a trustee in a case covered by subchapter IV of this chapter and by title
I of the Railway Labor Act, may reject a collective bargaining agreement only
in accordance with this section. Hereinafter in this section, a reference to
the trustee includes a reference to the debtor in possession.</text>
</subsection><subsection id="H414026F96B004485BD8160C1F642D720"><enum>(b)</enum><text>No provision of
this title shall be construed to permit the trustee to unilaterally terminate
or alter any provision of a collective bargaining agreement before complying
with this section. The trustee shall timely pay all monetary obligations
arising under the terms of the collective bargaining agreement. Any such
payment required to be made before a plan confirmed under section 1129 is
effective has the status of an allowed administrative expense under section
503.</text>
</subsection><subsection id="H401D8D3B5BCD43C8AF2FC364217B47F0"><enum>(c)</enum><paragraph commented="no" display-inline="yes-display-inline" id="H0CC8886FAFAC45A79FA3428C2E0D947E"><enum>(1)</enum><text>If the trustee seeks
modification of a collective bargaining agreement, then the trustee shall
provide notice to the labor organization representing the employees covered by
the agreement that modifications are being proposed under this section, and
shall promptly provide an initial proposal for modifications to the agreement.
Thereafter, the trustee shall confer in good faith with the labor organization,
at reasonable times and for a reasonable period in light of the complexity of
the case, in attempting to reach mutually acceptable modifications of such
agreement.</text>
</paragraph><paragraph id="H90EC4BB4C3F84E85AD23560F627B8DAA" indent="up1"><enum>(2)</enum><text display-inline="yes-display-inline">The initial proposal and subsequent
proposals by the trustee for modification of a collective bargaining agreement
shall be based upon a business plan for the reorganization of the debtor, and
shall reflect the most complete and reliable information available. The trustee
shall provide to the labor organization all information that is relevant for
negotiations. The court may enter a protective order to prevent the disclosure
of information if disclosure could compromise the debtor’s position with
respect to its competitors in the industry, subject to the needs of the labor
organization to evaluate the trustee’s proposals and any application for
rejection of the agreement or for interim relief pursuant to this
section.</text>
</paragraph><paragraph id="H9FC1320D1CBE4D7785FC9DD6A2FC45B4" indent="up1"><enum>(3)</enum><text>In consideration of Federal policy
encouraging the practice and process of collective bargaining and in
recognition of the bargained-for expectations of the employees covered by the
agreement, modifications proposed by the trustee—</text>
<subparagraph id="H8247696119CF4BFA9671376DBF46858A"><enum>(A)</enum><text>shall be proposed only as part of a
program of workforce and nonworkforce cost savings devised for the
reorganization of the debtor, including savings in management personnel
costs;</text>
</subparagraph><subparagraph id="H9EA1848F949F44AA832D54CA22AF8838"><enum>(B)</enum><text>shall be limited to modifications
designed to achieve a specified aggregate financial contribution for the
employees covered by the agreement (taking into consideration any labor cost
savings negotiated within the 12-month period before the filing of the
petition), and shall be not more than the minimum savings essential to permit
the debtor to exit bankruptcy, such that confirmation of a plan of
reorganization is not likely to be followed by the liquidation, or the need for
further financial reorganization, of the debtor (or any successor to the
debtor) in the short-term; and</text>
</subparagraph><subparagraph id="H29E61BF4E8A14FDD81043590033E1187"><enum>(C)</enum><text>shall not be disproportionate or
overly burden the employees covered by the agreement, either in the amount of
the cost savings sought from such employees or the nature of the
modifications.</text>
</subparagraph></paragraph></subsection><subsection id="H7F1093CA056B455F98BD29CEE28683F7"><enum>(d)</enum><paragraph commented="no" display-inline="yes-display-inline" id="HE97F473A145E471EAB057AAE9808DE29"><enum>(1)</enum><text>If, after a period of
negotiations, the trustee and the labor organization have not reached an
agreement over mutually satisfactory modifications, and further negotiations
are not likely to produce mutually satisfactory modifications, the trustee may
file a motion seeking rejection of the collective bargaining agreement after
notice and a hearing. Absent agreement of the parties, no such hearing shall be
held before the expiration of the 21-day period beginning on the date on which
notice of the hearing is provided to the labor organization representing the
employees covered by the agreement. Only the debtor and the labor organization
may appear and be heard at such hearing. An application for rejection shall
seek rejection effective upon the entry of an order granting the relief.</text>
</paragraph><paragraph id="H42F19A0DDA594C96B9B267CAD1951CB7" indent="up1"><enum>(2)</enum><text>In consideration of Federal policy
encouraging the practice and process of collective bargaining and in
recognition of the bargained-for expectations of the employees covered by the
agreement, the court may grant a motion seeking rejection of a collective
bargaining agreement only if, based on clear and convincing evidence—</text>
<subparagraph id="HD0360ED444B34D60AE187DDF9EE8B049"><enum>(A)</enum><text>the court finds that the trustee has
complied with the requirements of subsection (c);</text>
</subparagraph><subparagraph id="H2CCC218705704C82A55D6A62B7261606"><enum>(B)</enum><text>the court has considered alternative
proposals by the labor organization and has concluded that such proposals do
not meet the requirements of paragraph (3)(B) of subsection (c);</text>
</subparagraph><subparagraph id="H885D007BFF29414AB0C5A1D31679E0CA"><enum>(C)</enum><text>the court finds that further
negotiations regarding the trustee’s proposal or an alternative proposal by the
labor organization are not likely to produce an agreement;</text>
</subparagraph><subparagraph id="HD43AF1BC55A0488F9B650E1A1D43747C"><enum>(D)</enum><text>the court finds that implementation of
the trustee’s proposal shall not—</text>
<clause id="HD5462B7EEBE64147BF34EA633194ECD6"><enum>(i)</enum><text>cause a material diminution in the
purchasing power of the employees covered by the agreement;</text>
</clause><clause id="H21C7E259D13A4A61878C939CC4399D5E"><enum>(ii)</enum><text>adversely affect the ability of
the debtor to retain an experienced and qualified workforce; or</text>
</clause><clause id="HC78884DCF66B4A6FA08C763BB2A7A5C4"><enum>(iii)</enum><text>impair the debtor’s labor
relations such that the ability to achieve a feasible reorganization would be
compromised; and</text>
</clause></subparagraph><subparagraph id="H90100A362B4544BAA2A349FED85571C3"><enum>(E)</enum><text display-inline="yes-display-inline">the court concludes that rejection of the
agreement and immediate implementation of the trustee’s proposal is essential
to permit the debtor to exit bankruptcy, such that confirmation of a plan of
reorganization is not likely to be followed by liquidation, or the need for
further financial reorganization, of the debtor (or any successor to the
debtor) in the short term.</text>
</subparagraph></paragraph><paragraph id="H422150D4F551448580200C1814832504" indent="up1"><enum>(3)</enum><text>If the trustee has implemented a
program of incentive pay, bonuses, or other financial returns for insiders,
senior executive officers, or the 20 next most highly compensated employees or
consultants providing services to the debtor during the bankruptcy, or such a
program was implemented within 180 days before the date of the filing of the
petition, the court shall presume that the trustee has failed to satisfy the
requirements of subsection (c)(3)(C).</text>
</paragraph><paragraph id="H878B8EE3A7CA43AA9A004D2EDBBC5F27" indent="up1"><enum>(4)</enum><text>In no case shall the court enter an
order rejecting a collective bargaining agreement that would result in
modifications to a level lower than the level proposed by the trustee in the
proposal found by the court to have complied with the requirements of this
section.</text>
</paragraph><paragraph id="H83213A89299042849D6883FC18CFB705" indent="up1"><enum>(5)</enum><text>At any time after the date on which
an order rejecting a collective bargaining agreement is entered, or in the case
of an agreement entered into between the trustee and the labor organization
providing mutually satisfactory modifications, at any time after such agreement
has been entered into, the labor organization may apply to the court for an
order seeking an increase in the level of wages or benefits, or relief from
working conditions, based upon changed circumstances. The court shall grant the
request only if the increase or other relief is not inconsistent with the
standard set forth in paragraph (2)(E).</text>
</paragraph></subsection><subsection id="HDA32D7357AB24766961BACE068FCE069"><enum>(e)</enum><text>During a period in
which a collective bargaining agreement at issue under this section continues
in effect, and if essential to the continuation of the debtor’s business or in
order to avoid irreparable damage to the estate, the court, after notice and a
hearing, may authorize the trustee to implement interim changes in the terms,
conditions, wages, benefits, or work rules provided by the collective
bargaining agreement. Any hearing under this subsection shall be scheduled in
accordance with the needs of the trustee. The implementation of such interim
changes shall not render the application for rejection moot.</text>
</subsection><subsection id="H267511F7405B4760A4E2B3D8B3DD7475"><enum>(f)</enum><text>Rejection of a
collective bargaining agreement constitutes a breach of the agreement, and
shall be effective no earlier than the entry of an order granting such relief.
Notwithstanding the foregoing, solely for purposes of determining and allowing
a claim arising from the rejection of a collective bargaining agreement,
rejection shall be treated as rejection of an executory contract under section
365(g) and shall be allowed or disallowed in accordance with section 502(g)(1).
No claim for rejection damages shall be limited by section 502(b)(7). Economic
self-help by a labor organization shall be permitted upon a court order
granting a motion to reject a collective bargaining agreement under subsection
(d) or pursuant to subsection (e), and no provision of this title or of any
other provision of Federal or State law may be construed to the
contrary.</text>
</subsection><subsection id="H2F526A0156494DD783F82E539D3D0DDD"><enum>(g)</enum><text>The trustee shall
provide for the reasonable fees and costs incurred by a labor organization
under this section, upon request and after notice and a hearing.</text>
</subsection><subsection id="HB5BBFB73693F4B4D80394A1EDEA81113"><enum>(h)</enum><text>A collective
bargaining agreement that is assumed shall be assumed in accordance with
section
365.</text>
</subsection><after-quoted-block>.</after-quoted-block></quoted-block>
</section><section id="H5D9396CA363D4C4CBF31CE2C03F31CBB"><enum>202.</enum><header>Payment of
insurance benefits to retired employees</header><text display-inline="no-display-inline"><external-xref legal-doc="usc" parsable-cite="usc/11/1114">Section 1114</external-xref> of title 11, United States
Code, is amended—</text>
<paragraph id="H1B40134440B94DB9891776777B5B3593"><enum>(1)</enum><text>in subsection (a),
by inserting <quote>, whether or not the debtor asserts a right to unilaterally
modify such payments under such plan, fund, or program</quote> before the
period at the end;</text>
</paragraph><paragraph id="H3B9566F91B1D42F99D1DB8FE662050BD"><enum>(2)</enum><text>in subsection
(b)(2), by inserting after <quote>section</quote> the following: <quote>, and a
labor organization serving as the authorized representative under subsection
(c)(1),</quote>;</text>
</paragraph><paragraph id="H450E75730706405382889F0114141250"><enum>(3)</enum><text>in subsection (f),
by striking <quote>(f)</quote> and all that follows through paragraph (2) and
inserting the following:</text>
<quoted-block display-inline="no-display-inline" id="H7023F346EB6C4C9EBD763283EFAB3799" style="OLC">
<subsection id="H6E2B6FF630984715A0847CAB10DE6B21"><enum>(f)</enum><paragraph commented="no" display-inline="yes-display-inline" id="H0564817D06924136A08926510BC0B8E1"><enum>(1)</enum><text>If a trustee seeks
modification of retiree benefits, then the trustee shall provide a notice to
the authorized representative that modifications are being proposed pursuant to
this section, and shall promptly provide an initial proposal. Thereafter, the
trustee shall confer in good faith with the authorized representative at
reasonable times and for a reasonable period in light of the complexity of the
case in attempting to reach mutually satisfactory modifications.</text>
</paragraph><paragraph id="H552FFA7F9417494EB6D799EDFFC963A7" indent="up1"><enum>(2)</enum><text display-inline="yes-display-inline">The initial proposal and subsequent
proposals by the trustee shall be based upon a business plan for the
reorganization of the debtor and shall reflect the most complete and reliable
information available. The trustee shall provide to the authorized
representative all information that is relevant for the negotiations. The court
may enter a protective order to prevent the disclosure of information if
disclosure could compromise the debtor’s position with respect to its
competitors in the industry, subject to the needs of the authorized
representative to evaluate the trustee’s proposals and an application pursuant
to subsection (g) or (h).</text>
</paragraph><paragraph id="H8472DF47099E47FEB3D53CF41AD75C1D" indent="up1"><enum>(3)</enum><text>Modifications proposed by the
trustee—</text>
<subparagraph id="HA8037E10B2CB4D61972893C6304B6006"><enum>(A)</enum><text>shall be proposed only as part of a
program of workforce and nonworkforce cost savings devised for the
reorganization of the debtor, including savings in management personnel
costs;</text>
</subparagraph><subparagraph id="H87BB0CF9E2C54496ABF373C23954E2F9"><enum>(B)</enum><text display-inline="yes-display-inline">shall be limited to modifications that are
designed to achieve a specified aggregate financial contribution for the
retiree group represented by the authorized representative (taking into
consideration any cost savings implemented within the 12-month period before
the date of filing of the petition with respect to the retiree group), and
shall be no more than the minimum savings essential to permit the debtor to
exit bankruptcy, such that confirmation of a plan of reorganization is not
likely to be followed by the liquidation, or the need for further financial
reorganization, of the debtor (or any successor to the debtor) in the short
term; and</text>
</subparagraph><subparagraph id="HB71834B530734CBB96DE7F919BA08E47"><enum>(C)</enum><text>shall not be disproportionate or
overly burden the retiree group, either in the amount of the cost savings
sought from such group or the nature of the
modifications.</text>
</subparagraph></paragraph></subsection><after-quoted-block>;</after-quoted-block></quoted-block>
</paragraph><paragraph id="HE3739FDCE4854B7D8B72557CEFD2E761"><enum>(4)</enum><text display-inline="yes-display-inline">in subsection (g)—</text>
<subparagraph id="H17EE775EBD2641AE8C355BB3EF6E2AA9"><enum>(A)</enum><text display-inline="yes-display-inline">by striking <quote>(g)</quote> and all that
follows through the semicolon at the end of paragraph (3) and inserting the
following:</text>
<quoted-block display-inline="no-display-inline" id="H532600338C9841FEACF15A1A1A074189" style="OLC">
<subsection id="HD3BC2DCFE37E489F9B206F41E2B57337"><enum>(g)</enum><paragraph commented="no" display-inline="yes-display-inline" id="HA6CBAC287D554DE884C00CA8E3E89128"><enum>(1)</enum><text display-inline="yes-display-inline">If, after a period of negotiations, the
trustee and the authorized representative have not reached agreement over
mutually satisfactory modifications and further negotiations are not likely to
produce mutually satisfactory modifications, then the trustee may file a motion
seeking modifications in the payment of retiree benefits after notice and a
hearing. Absent agreement of the parties, no such hearing shall be held before
the expiration of the 21-day period beginning on the date on which notice of
the hearing is provided to the authorized representative. Only the debtor and
the authorized representative may appear and be heard at such hearing.</text>
</paragraph><paragraph id="HF6C30569830C44CD8098D53AF1D4DB20" indent="up1"><enum>(2)</enum><text>The court may grant a motion to
modify the payment of retiree benefits only if, based on clear and convincing
evidence—</text>
<subparagraph id="H79BDB45D8AB04CA49CA80A955676E1DE"><enum>(A)</enum><text>the court finds that the trustee has
complied with the requirements of subsection (f);</text>
</subparagraph><subparagraph id="H17D9633A5A8B40BE9A7022857A2553B2"><enum>(B)</enum><text>the court has considered alternative
proposals by the authorized representative and has determined that such
proposals do not meet the requirements of subsection (f)(3)(B);</text>
</subparagraph><subparagraph id="HCFED6EEB87DA46928101227781AB05CA"><enum>(C)</enum><text>the court finds that further
negotiations regarding the trustee’s proposal or an alternative proposal by the
authorized representative are not likely to produce a mutually satisfactory
agreement;</text>
</subparagraph><subparagraph id="H6FEED7650099474187EEC905D67D00C9"><enum>(D)</enum><text display-inline="yes-display-inline">the court finds that implementation of the
proposal shall not cause irreparable harm to the affected retirees; and</text>
</subparagraph><subparagraph id="H89F836BC99124584B6FA610BD515AA32"><enum>(E)</enum><text display-inline="yes-display-inline">the court concludes that an order granting
the motion and immediate implementation of the trustee’s proposal is essential
to permit the debtor to exit bankruptcy, such that confirmation of a plan of
reorganization is not likely to be followed by liquidation, or the need for
further financial reorganization, of the debtor (or a successor to the debtor)
in the short term.</text>
</subparagraph></paragraph><paragraph id="HE4244CAFA7EC496CA547FF29398EA3AB" indent="up1"><enum>(3)</enum><text>If a trustee has implemented a
program of incentive pay, bonuses, or other financial returns for insiders,
senior executive officers, or the 20 next most highly compensated employees or
consultants providing services to the debtor during the bankruptcy, or such a
program was implemented within 180 days before the date of the filing of the
petition, the court shall presume that the trustee has failed to satisfy the
requirements of subparagraph (f)(3)(C).</text>
</paragraph></subsection><after-quoted-block>;
and</after-quoted-block></quoted-block>
</subparagraph><subparagraph id="HBA0146C2460E4CB8A743D939C6E6A914"><enum>(B)</enum><text>by striking
“except that in no case” and inserting the following:</text>
<quoted-block display-inline="no-display-inline" id="H61461C420B2C497F9989EA97C1C72EDD" style="OLC">
<paragraph id="H4CE61C31056547F69289A1820D612F4E" indent="up1"><enum>(4)</enum><text>In no
case</text>
</paragraph><after-quoted-block>;
and</after-quoted-block></quoted-block>
</subparagraph></paragraph><paragraph id="H59BAAE64138B417C8BFA4069F976661D"><enum>(5)</enum><text>by striking
subsection (k) and redesignating subsections (l) and (m) as subsections (k) and
(l), respectively.</text>
</paragraph></section><section id="H4B2049F49F894EE3B58A85AFCFFAF339"><enum>203.</enum><header>Protection of
employee benefits in a sale of assets</header><text display-inline="no-display-inline"><external-xref legal-doc="usc" parsable-cite="usc/11/363">Section 363(b)</external-xref> of title 11, United States
Code, is amended by adding at the end the following:</text>
<quoted-block display-inline="no-display-inline" id="HC9BEE59145BC4494A3945C336DA59425" style="OLC">
<paragraph id="H3842CCF5FC6E415AB79550E84989AD68" indent="up1"><enum>(3)</enum><text display-inline="yes-display-inline">In approving a sale under this subsection,
the court shall consider the extent to which a bidder has offered to maintain
existing jobs, preserve terms and conditions of employment, and assume or match
pension and retiree health benefit obligations in determining whether an offer
constitutes the highest or best offer for such
property.</text>
</paragraph><after-quoted-block>.</after-quoted-block></quoted-block>
</section><section id="H31BF051FB30C435F978023FA38840FE6"><enum>204.</enum><header>Claim for
pension losses</header><text display-inline="no-display-inline">Section 502 of
title 11, United States Code, is amended by adding at the end the
following:</text>
<quoted-block display-inline="no-display-inline" id="H6EB6A4B2370F4E2484E05F64E5230D9F" style="OLC">
<subsection id="H4BAD23A70DA647E8AC9B64A363939407"><enum>(l)</enum><text>The court shall
allow a claim asserted by an active or retired participant, or by a labor
organization representing such participants, in a defined benefit plan
terminated under section 4041 or 4042 of the Employee Retirement Income
Security Act of 1974, for any shortfall in pension benefits accrued as of the
effective date of the termination of such pension plan as a result of the
termination of the plan and limitations upon the payment of benefits imposed
pursuant to section 4022 of such Act, notwithstanding any claim asserted and
collected by the Pension Benefit Guaranty Corporation with respect to such
termination.</text>
</subsection><subsection id="H4A87555A546C44489A0A8772B1CD15F8"><enum>(m)</enum><text>The court shall
allow a claim of a kind described in section 101(5)(C) by an active or retired
participant in a defined contribution plan (within the meaning of section 3(34)
of the Employee Retirement Income Security Act of 1974 (<external-xref legal-doc="usc" parsable-cite="usc/29/1002">29 U.S.C. 1002(34)</external-xref>)),
or by a labor organization representing such participants. The amount of such
claim shall be measured by the market value of the stock at the time of
contribution to, or purchase by, the plan and the value as of the commencement
of the
case.</text>
</subsection><after-quoted-block>.</after-quoted-block></quoted-block>
</section><section commented="no" id="H6408C93BD900445E9978CD8F016BDB59"><enum>205.</enum><header>Payments by
secured lender</header><text display-inline="no-display-inline">Section 506(c)
of title 11, United States Code, is amended by adding at the end the following:
<quote>If employees have not received wages, accrued vacation, severance, or
other benefits owed under the policies and practices of the debtor, or pursuant
to the terms of a collective bargaining agreement, for services rendered on and
after the date of the commencement of the case, then such unpaid obligations
shall be deemed necessary costs and expenses of preserving, or disposing of,
property securing an allowed secured claim and shall be recovered even if the
trustee has otherwise waived the provisions of this subsection under an
agreement with the holder of the allowed secured claim or a successor or
predecessor in interest.</quote>.</text>
</section><section id="H79743A81EC974BC4AB07FB1A73A741D2"><enum>206.</enum><header>Preservation of
jobs and benefits</header><text display-inline="no-display-inline">Title 11,
United States Code, is amended—</text>
<paragraph id="HB7F22FE231BB4F4DACC0D446150B65FD"><enum>(1)</enum><text>by inserting
before section 1101 the following:</text>
<quoted-block display-inline="no-display-inline" id="HC360A6E5CECF41EDB2D42E1259BA3D46" style="OLC">
<section id="H15069005216C429AB4B35912E57C844E"><enum>1100.</enum><header>Statement of
purpose</header><text display-inline="no-display-inline">A debtor commencing a
case under this chapter shall have as its principal purpose the reorganization
of its business to preserve going concern value to the maximum extent possible
through the productive use of its assets and the preservation of jobs that will
sustain productive economic
activity.</text>
</section><after-quoted-block>;</after-quoted-block></quoted-block>
</paragraph><paragraph id="H07280E1C6A754FA8B5C54A4C42B23B9C"><enum>(2)</enum><text>in section
1129(a), as amended by section 104, by adding at the end the following:</text>
<quoted-block display-inline="no-display-inline" id="H2DF06E0EE09142DE8054B3AD3E874CA2" style="OLC">
<paragraph id="HB3918069D66B446BB47B04BAE4928F1C"><enum>(18)</enum><text display-inline="yes-display-inline">The debtor has demonstrated that the
reorganization preserves going concern value to the maximum extent possible
through the productive use of the debtor’s assets and preserves jobs that
sustain productive economic activity.</text>
</paragraph><after-quoted-block>;
</after-quoted-block></quoted-block>
</paragraph><paragraph id="HEFD6069D98FD4DDAA405447DCF3F0E40"><enum>(3)</enum><text display-inline="yes-display-inline">in section 1129(c), by striking the last
sentence and inserting the following: “If the requirements of subsections (a)
and (b) are met with respect to more than 1 plan, the court shall, in
determining which plan to confirm—</text>
<quoted-block display-inline="no-display-inline" id="H36BEEEBDCAEB4FD7ACA75247454494E6" style="OLC">
<paragraph id="HCEB86C8493444C458F90FDB3C7C37BAE"><enum>(1)</enum><text>consider the
extent to which each plan would preserve going concern value through the
productive use of the debtor’s assets and the preservation of jobs that sustain
productive economic activity; and</text>
</paragraph><paragraph id="H97C9881A9E474113A85288A7CB016280"><enum>(2)</enum><text>confirm the plan
that better serves such interests.</text>
</paragraph><quoted-block-continuation-text quoted-block-continuation-text-level="subsection">A plan
that incorporates the terms of a settlement with a labor organization
representing employees of the debtor shall presumptively constitute the plan
that satisfies this subsection.</quoted-block-continuation-text><after-quoted-block>;
and</after-quoted-block></quoted-block>
</paragraph><paragraph id="HCA080980CA694C27A43A783D1140310D"><enum>(4)</enum><text>in the table of
sections for chapter 11, by inserting the following before the item relating to
section 1101:</text>
<quoted-block id="H3E9FA6CE6CD145288ECBC86D7928B408" style="USC">
<toc regeneration="no-regeneration">
<toc-entry level="section">1100. Statement of
purpose.</toc-entry>
</toc>
<after-quoted-block>.</after-quoted-block></quoted-block>
</paragraph></section><section id="HE34CD560BBCB474F8BB2EF919E7CC2D3"><enum>207.</enum><header>Termination of
exclusivity</header><text display-inline="no-display-inline">Section 1121(d) of
title 11, United States Code, is amended by adding at the end the
following:</text>
<quoted-block display-inline="no-display-inline" id="H481854E366AE48AD91F536E5A92A77DB" style="traditional">
<paragraph id="H31BEFDC8D61D4204B0BAEBA5E43FD0FD" indent="up1"><enum>(3)</enum><text display-inline="yes-display-inline">For purposes of this subsection, cause for
reducing the 120-day period or the 180-day period includes the
following:</text>
<subparagraph id="HD0822424F66F4211B6128C641D7F41B3"><enum>(A)</enum><text>The filing of a motion pursuant to
section 1113 seeking rejection of a collective bargaining agreement if a plan
based upon an alternative proposal by the labor organization is reasonably
likely to be confirmed within a reasonable time.</text>
</subparagraph><subparagraph id="H667FA539EA474597BF3553177C4E0694"><enum>(B)</enum><text>The proposed filing of a plan by a
proponent other than the debtor, which incorporates the terms of a settlement
with a labor organization if such plan is reasonably likely to be confirmed
within a reasonable
time.</text>
</subparagraph></paragraph><after-quoted-block>.</after-quoted-block></quoted-block>
</section><enum>III</enum><header>Restricting
Executive Compensation Programs</header>
<section id="HA870A531BAA04F00B70CE0450D352BC7"><enum>301.</enum><header>Executive
compensation upon exit from bankruptcy</header><text display-inline="no-display-inline"><external-xref legal-doc="usc" parsable-cite="usc/11/1129">Section 1129(a)</external-xref> of title 11, United States
Code, is amended—</text>
<paragraph id="HA2A78D9F12D5481F835E1584796AEC50"><enum>(1)</enum><text>in paragraph (4),
by adding at the end the following: “Except for compensation subject to review
under paragraph (5), payments or other distributions under the plan to or for
the benefit of insiders, senior executive officers, and any of the 20 next most
highly compensated employees or consultants providing services to the debtor,
shall not be approved except as part of a program of payments or distributions
generally applicable to employees of the debtor, and only to the extent that
the court determines that such payments are not excessive or disproportionate
compared to distributions to the debtor’s nonmanagement workforce.”; and</text>
</paragraph><paragraph id="H6A6D090D067E41399D86800F6E42C371"><enum>(2)</enum><text>in paragraph
(5)—</text>
<subparagraph id="H175BE647D89D40D082867DE89C42D371"><enum>(A)</enum><text>in subparagraph
(A)(ii), by striking <quote>and</quote> at the end; and</text>
</subparagraph><subparagraph id="HE8ECCD74F60841C19348F388AE335579"><enum>(B)</enum><text>in subparagraph
(B), by striking the period at the end and inserting the following: “;
and</text>
<quoted-block id="H5E2A80D4178B4B2881985BF4902EDC6F" style="OLC">
<subparagraph id="H8EF06B94BB284584980E4C8FE82E3FE9"><enum>(C)</enum><text>the compensation
disclosed pursuant to subparagraph (B) has been approved by, or is subject to
the approval of, the court as reasonable when compared to individuals holding
comparable positions at comparable companies in the same industry and not
disproportionate in light of economic concessions by the debtor’s nonmanagement
workforce during the
case.</text>
</subparagraph><after-quoted-block>.</after-quoted-block></quoted-block>
</subparagraph></paragraph></section><section id="H1A0144A69F914A6780A222DE7887A71F"><enum>302.</enum><header>Limitations on
executive compensation enhancements</header><text display-inline="no-display-inline"><external-xref legal-doc="usc" parsable-cite="usc/11/503">Section 503(c)</external-xref> of title 11, United States
Code, is amended—</text>
<paragraph id="H09F4C6A980CF4CE0863B52B6CB58BC96"><enum>(1)</enum><text>in paragraph
(1)—</text>
<subparagraph id="H5FD3C4762AEC43A7A092B13929284727"><enum>(A)</enum><text>by inserting
<quote>, a senior executive officer, or any of the 20 next most highly
compensated employees or consultants</quote> after <quote>an
insider</quote>;</text>
</subparagraph><subparagraph id="H98B20300184B45D88A23B38C89206750"><enum>(B)</enum><text>by inserting
<quote>or for the payment of performance or incentive compensation, or a bonus
of any kind, or other financial returns designed to replace or enhance
incentive, stock, or other compensation in effect before the date of the
commencement of the case,</quote> after <quote>remain with the debtor’s
business,</quote>; and</text>
</subparagraph><subparagraph id="H525A7DF110C948B1AEAD65C6246F5FE3"><enum>(C)</enum><text>by inserting
“clear and convincing” before “evidence in the record”; and</text>
</subparagraph></paragraph><paragraph id="H7795953951664C2C9E242DFC1D413D62"><enum>(2)</enum><text>by amending
paragraph (3) to read as follows:</text>
<quoted-block id="H305C58EAD1954843A73EF525C4F780C0" style="OLC">
<paragraph id="H842B1B50F2774C00B99B546662B4465C"><enum>(3)</enum><text>other transfers or
obligations, to or for the benefit of insiders, senior executive officers,
managers, or consultants providing services to the debtor, in the absence of a
finding by the court, based upon clear and convincing evidence, and without
deference to the debtor’s request for such payments, that such transfers or
obligations are essential to the survival of the debtor’s business or (in the
case of a liquidation of some or all of the debtor’s assets) essential to the
orderly liquidation and maximization of value of the assets of the debtor, in
either case, because of the essential nature of the services provided, and then
only to the extent that the court finds such transfers or obligations are
reasonable compared to individuals holding comparable positions at comparable
companies in the same industry and not disproportionate in light of economic
concessions by the debtor’s nonmanagement workforce during the
case.</text>
</paragraph><after-quoted-block>.</after-quoted-block></quoted-block>
</paragraph></section><section id="HF2B2D7E469EC42968ED0A3AB983E5445"><enum>303.</enum><header>Assumption of
executive benefit plans</header><text display-inline="no-display-inline"><external-xref legal-doc="usc" parsable-cite="usc/11/365">Section 365</external-xref> of title 11, United States Code,
is amended—</text>
<paragraph id="HA07DA15023E44EEBA4EE3F02FD94E774"><enum>(1)</enum><text>in subsection (a),
by striking <quote>and (d)</quote> and inserting <quote>(d), (q), and
(r)</quote>; and</text>
</paragraph><paragraph id="H1F9B0028D4FF4997A6C7EF6DBDEE96F2"><enum>(2)</enum><text>by adding at the
end the following:</text>
<quoted-block display-inline="no-display-inline" id="H9D71784B15424C6F801D24D31B837CE2" style="OLC">
<subsection id="H84729E5B06B140A09185CDD7CD142F62"><enum>(q)</enum><text display-inline="yes-display-inline">No deferred compensation arrangement for
the benefit of insiders, senior executive officers, or any of the 20 next most
highly compensated employees of the debtor shall be assumed if a defined
benefit plan for employees of the debtor has been terminated pursuant to
section 4041 or 4042 of the Employee Retirement Income Security Act of 1974, on
or after the date of the commencement of the case or within 180 days before the
date of the commencement of the case.</text>
</subsection><subsection id="HC6D783BF12FD47D18815C083B96DC518"><enum>(r)</enum><text>No plan, fund,
program, or contract to provide retiree benefits for insiders, senior executive
officers, or any of the 20 next most highly compensated employees of the debtor
shall be assumed if the debtor has obtained relief under subsection (g) or (h)
of section 1114 to impose reductions in retiree benefits or under subsection
(d) or (e) of section 1113 to impose reductions in the health benefits of
active employees of the debtor, or reduced or eliminated health benefits for
active or retired employees within 180 days before the date of the commencement
of the
case.</text>
</subsection><after-quoted-block>.</after-quoted-block></quoted-block>
</paragraph></section><section id="H1AA8E38A586A450897C615893F11CF4A"><enum>304.</enum><header>Recovery of
executive compensation</header><text display-inline="no-display-inline">Title
11, United States Code, is amended by inserting after section 562 the
following:</text>
<quoted-block display-inline="no-display-inline" id="H8A37BB007B0045CD8DE5DAB431F72D54" style="OLC">
<section id="HB7CB84E218014603AD2E6C4CFFE3290F"><enum>563.</enum><header>Recovery of
executive compensation</header>
<subsection id="H9B1637FD428146BFBEF548A79ED0FD1C"><enum>(a)</enum><text>If a debtor has
obtained relief under subsection (d) of section 1113, or subsection (g) of
section 1114, by which the debtor reduces the cost of its obligations under a
collective bargaining agreement or a plan, fund, or program for retiree
benefits as defined in section 1114(a), the court, in granting relief, shall
determine the percentage diminution in the value of the obligations when
compared to the debtor’s obligations under the collective bargaining agreement,
or with respect to retiree benefits, as of the date of the commencement of the
case under this title before granting such relief. In making its determination,
the court shall include reductions in benefits, if any, as a result of the
termination pursuant to section 4041 or 4042 of the Employee Retirement Income
Security Act of 1974, of a defined benefit plan administered by the debtor, or
for which the debtor is a contributing employer, effective at any time on or
after 180 days before the date of the commencement of a case under this title.
The court shall not take into account pension benefits paid or payable under
such Act as a result of any such termination.</text>
</subsection><subsection id="H6830233BE0DA45B5B3B99793E84ABC0F"><enum>(b)</enum><text>If a defined
benefit pension plan administered by the debtor, or for which the debtor is a
contributing employer, has been terminated pursuant to section 4041 or 4042 of
the Employee Retirement Income Security Act of 1974, effective at any time on
or after 180 days before the date of the commencement of a case under this
title, but a debtor has not obtained relief under subsection (d) of section
1113, or subsection (g) of section 1114, then the court, upon motion of a party
in interest, shall determine the percentage diminution in the value of benefit
obligations when compared to the total benefit liabilities before such
termination. The court shall not take into account pension benefits paid or
payable under title IV of the Employee Retirement Income Security Act of 1974
as a result of any such termination.</text>
</subsection><subsection id="H87264B75F710442688287DBA9378AEAB"><enum>(c)</enum><text>Upon the
determination of the percentage diminution in value under subsection (a) or
(b), the estate shall have a claim for the return of the same percentage of the
compensation paid, directly or indirectly (including any transfer to a
self-settled trust or similar device, or to a nonqualified deferred
compensation plan under section 409A(d)(1) of the Internal Revenue Code of
1986) to any officer of the debtor serving as member of the board of directors
of the debtor within the year before the date of the commencement of the case,
and any individual serving as chairman or lead director of the board of
directors at the time of the granting of relief under section 1113 or 1114 or,
if no such relief has been granted, the termination of the defined benefit
plan.</text>
</subsection><subsection id="HDA7F0411196744B28863CF993CEF6FBE"><enum>(d)</enum><text>The trustee or a
committee appointed pursuant to section 1102 may commence an action to recover
such claims, except that if neither the trustee nor such committee commences an
action to recover such claim by the first date set for the hearing on the
confirmation of plan under section 1129, any party in interest may apply to the
court for authority to recover such claim for the benefit of the estate. The
costs of recovery shall be borne by the estate.</text>
</subsection><subsection id="HFC3C4EADB43A4FDEBB2D3E68D454375B"><enum>(e)</enum><text>The court shall
not award postpetition compensation under section 503(c) or otherwise to any
person subject to subsection (c) if there is a reasonable likelihood that such
compensation is intended to reimburse or replace compensation recovered by the
estate under this
section.</text>
</subsection></section><after-quoted-block>.</after-quoted-block></quoted-block>
</section><section id="HF05EE9D1CFAE4BFCBB2794BCA5666BB1"><enum>305.</enum><header>Preferential
compensation transfer</header><text display-inline="no-display-inline">Section
547 of title 11, United States Code, is amended by adding at the end the
following:</text>
<quoted-block display-inline="no-display-inline" id="H6A3EAC8B22834E0AA5E6B2FE0C1920F0" style="USC">
<subsection id="H192AEFD1D70943F4B81D5E8DED3AAF88"><enum>(j)</enum><text display-inline="yes-display-inline">The trustee may avoid a transfer to or for
the benefit of an insider (including an obligation incurred for the benefit of
an insider under an employment contract) made in anticipation of bankruptcy, or
a transfer made in anticipation of bankruptcy to a consultant who is formerly
an insider and who is retained to provide services to an entity that becomes a
debtor (including an obligation under a contract to provide services to such
entity or to a debtor) made or incurred on or within 1 year before the filing
of the petition. No provision of subsection (c) shall constitute a defense
against the recovery of such transfer. The trustee or a committee appointed
pursuant to section 1102 may commence an action to recover such transfer,
except that, if neither the trustee nor such committee commences an action to
recover such transfer by the time of the commencement of a hearing on the
confirmation of a plan under section 1129, any party in interest may apply to
the court for authority to recover the claims for the benefit of the estate.
The costs of recovery shall be borne by the
estate.</text>
</subsection><after-quoted-block>.</after-quoted-block></quoted-block>
</section><enum>IV</enum><header>Other
Provisions</header>
<section id="H41C448AA1DA846AE998FC3049C1418A7"><enum>401.</enum><header>Union proof of
claim</header><text display-inline="no-display-inline">Section 501(a) of title
11, United States Code, is amended by inserting <quote>, including a labor
organization,</quote> after <quote>A creditor</quote>.</text>
</section><section commented="no" id="HD48F06E3CF664B41985E5199FA975728"><enum>402.</enum><header>Exception from
automatic stay</header><text display-inline="no-display-inline">Section 362(b)
of title 11, United States Code, is amended—</text>
<paragraph commented="no" id="HCB29DF56D49E427696D60B7BF133FF1C"><enum>(1)</enum><text>in paragraph (27),
by striking <quote>and</quote> at the end;</text>
</paragraph><paragraph commented="no" id="HC066BF4B53A24D329263BCCD43C335FE"><enum>(2)</enum><text>in paragraph (28),
by striking the period at the end and inserting <quote>; and</quote>;
and</text>
</paragraph><paragraph commented="no" id="HD5D76CDD8D2C4432818F94625280089B"><enum>(3)</enum><text display-inline="yes-display-inline">by adding at the end the following:</text>
<quoted-block display-inline="no-display-inline" id="H9EB1A57433B24551971F970DB8B17A02" style="OLC">
<paragraph commented="no" id="HABD6F8DD6051481F94A23E97CD47F533"><enum>(29)</enum><text display-inline="yes-display-inline">of the commencement or continuation of a
grievance, arbitration, or similar dispute resolution proceeding established by
a collective bargaining agreement that was or could have been commenced against
the debtor before the filing of a case under this title, or the payment or
enforcement of an award or settlement under such
proceeding.</text>
</paragraph><after-quoted-block>.</after-quoted-block></quoted-block>
</paragraph></section>