Replies to post #23755 on AbitibiBowater, Inc. (fka ABWTQ)

[In0nS]

So 503(c) says the following (basically) on KERPs...

Any payments made to an insider for the purpose of inducing the insider to remain employed with the debtor will be prohibited unless the court finds that (1) the payment is essential to the retention of the insider because the insider has a bona fide job offer at an equal or greater rate of compensation, (2) the services provided by the insider are essential to the survival of the business, and (3) the amount of payment does not exceed certain limits that are calculated by reference to similar payments recently made to insiders

So, we know it is NOT (1), we know it is NOT (2), it is the forest industry for Chris sakes...does that mean if we do the math (see below) and demonstrate to the judge that it is NOT (3), that he has to determine that it is a KERP and NOT a SERP and therefore cannot be approved??? Do we also need to demonstrate that it is not an incentive plan under 363??



(C) either--
(i) the amount of the transfer made to, or obligation incurred for the benefit of, the person is not
greater than an amount equal to 10 times the amount of the mean transfer or obligation of a
similar kind given to nonmanagement employees for any purpose during the calendar year in
which the transfer is made or the obligation is incurred; or
(ii) if no such similar transfers were made to, or obligations were incurred for the benefit of, such
nonmanagement employees during such calendar year, the amount of the transfer or obligation is
not greater than an amount equal to 25 percent of the amount of any similar transfer or obligation
made to or incurred for the benefit of such insider for any purpose during the calendar year
before the year in which such transfer is made or obligation is incurred;

[emailjanum]

The record reflects the Intercompany Claim does not, and was not intended to, rank paripassu with the unsecured debt claims against SSC Canada and should be valued at zero dollars. The Intercompany Claim does not have similar legal attributes as the General Unsecured Claims against SSC Canada and does not have the same rights against the estate of SSC Canada. Thus, the Intercompany Claim is sufficiently different from the General Unsecured Claims against SSC Canada to justify separate classification of the Intercompany Claim pursuant to section 1122(a) of the Bankruptcy Code.Even if the Intercompany Claim were sufficiently "substantially similar" to the General Unsecured Claims against SSC Canada to permit the Debtors to classify the Intercompany Claim in Class 15D, separate classification of substantially similar claims is permitted under section 1122(a) of the Bankruptcy Code. The classification of the Intercompany Claim is reasonable and not arbitrary, and complies with section 1122(a) of the Bankruptcy Code. SeeIn re Jersey City Med. Ctr., 817 F.2d 1055, 1060-61 (3d Cir. 1987); seealsoIn re Kaiser Aluminum Corp., No. 02-10429 (JKF), 7312, 2006 WL 616243 *5-6 (Bankr. D. Del. Feb. 6, 2006).