,,ii  #aacth ,,congress  #b;d ,session  
,s4 #behi  ,,in ,,the ,,senate ,,of     
,,the ,,united ,,states  ,july #aj1     
#bjad ,mr4 ,durbin 7for himself1 ,mr4   
,harkin1 ,mr4 ,whitehouse1 ,mr4 ,brown1 
and ,mr4 ,franken7 introduced the       
following bill2 which was read twice and
 referred to the ,committee on the      
,judiciary  ,a ,,bill  ,to amend title  
#aa1 ,united ,states ,code1 to improve  
protections for employees and retirees  
in business bankruptcies4  #a4  ,short  
title2 table of contents  7a7  ,short   
title  ,this ,act may be cited as the   
,protecting ,employees and ,retirees in 
,business ,bankruptcies ,act of #bjad4  
7b7  ,table of contents  ,the table of  
contents of this ,act is as follows3    
,sec4 #a4 ,short title2 table of        
contents4 ,sec4 #b4 ,findings4 ,,title  
,i--,improving ,recoveries for          
,employees and ,retirees  ,sec4 #aja4   
,increased wage priority4 ,sec4 #ajb4   
,claim for stock value losses in defined
 contribution plans4 ,sec4 #ajc4        

,priority for severance pay4 ,sec4 #ajd4
 ,financial returns for employees and   
retirees4 ,sec4 #aje4 ,priority for     
,,warn ,act damages4 ,,title            
,,ii--,reducing ,employees' and         
,retirees' ,losses ,sec4 #bja4          
,rejection of collective bargaining     
agreements4 ,sec4 #bjb4 ,payment of     
insurance benefits to retired employees4
 ,sec4 #bjc4 ,protection of employee    
benefits in a sale of assets4 ,sec4     
#bjd4 ,claim for pension losses4 ,sec4  
#bje4 ,payments by secured lender4 ,sec4
 #bjf4 ,preservation of jobs and        
benefits4 ,sec4 #bjg4 ,termination of   
exclusivity4 ,sec4 #bjh4 ,claim for     
withdrawal liability4 ,,title           
,,iii--,restricting ,executive          
,compensation ,programs ,sec4 #cja4     
,executive compensation upon exit from  
bankruptcy4 ,sec4 #cjb4 ,limitations on 
executive compensation enhancements4    
,sec4 #cjc4 ,assumption of executive    
benefit plans4 ,sec4 #cjd4 ,recovery of 
executive compensation4 ,sec4 #cje4     

,preferential compensation transfer4    
,,title ,,iv--,other ,provisions ,sec4  
#dja4 ,union proof of claim4 ,sec4 #djb4
 ,exception from automatic stay4  #b4   
,findings  ,the ,congress finds the     
following3  7#a7 ,business bankruptcies 
have increased sharply in recent years  
and remain at high levels4 ,these       
bankruptcies include several of the     
largest business bankruptcy filings in  
history4 ,as the use of bankruptcy has  
expanded1 job preservation and          
retirement security are placed at       
greater risk4  7#b7 ,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 economy4 ,however1 while         
protections for employees and retirees  
in bankruptcy cases have eroded1        
management compensation plans devised   
for those in charge of troubled         
businesses have become more prevalent   

and are escaping adequate scrutiny4     
7#c7 ,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 industries4  ,i  ,improving        
,recoveries for ,employees and ,retirees
  #aja4  ,increased wage priority       
,section #ejg7;a7 of title #aa1 ,united 
,states ,code1 is amended--  7#a7 in    
paragraph 7#d7--  7,a7 by striking      
#aj1jjj and inserting #bj1jjj2  7,b7 by 
striking within #ahj days2 and  7,c7 by 
striking or the date of the cessation of
 the debtor's business1 whichever occurs
 first12  7#b7 in paragraph 7#e77;,a71  
by striking--  7,a7  within #ahj days2  
and  7,b7  or the date of the cessation 
of the debtor's business1 whichever     
occurs first2 and  7#c7 in paragraph    
7#e71 by striking subparagraph 7,b7 and 
inserting the following3  7,b7 for each 
such plan1 to the extent of the number  
of employees covered by each such plan1 

multiplied by #bj1jjj4  4  #ajb4  ,claim
 for stock value losses in defined      
contribution plans  ,section #aja7e7 of 
title #aa1 ,united ,states ,code1 is    
amended--  7#a7 in subparagraph 7,a71 by
 striking or at the end2  7#b7 in       
subparagraph 7,b71 by striking the      
period at the end and inserting 2 or2   
and  7#c7 by adding at the end the      
following3  7,c7 right or interest in   
equity securities of the debtor1 or an  
affiliate of the debtor1 held in a      
defined contribution plan 7within the   
meaning of section #c7cd7 of the        
,employee ,retirement ,income ,security 
,act of #aigd 7#bi ,u4,s4,c4 #ajjb7cd777
 for the benefit of an individual who is
 not an insider1 a senior executive     
officer1 or any of the #bj next most    
highly compensated employees of the     
debtor 7if #a or more are not insiders71
 if such securities were attributable to
 either employer contributions by the   
debtor or an affiliate of the debtor1 or
 elective deferrals 7within the meaning 

of section #djb7;g7 of the ,internal    
,revenue ,code of #aihf71 and any       
earnings thereon1 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      
value4  4  #ajc4  ,priority for         
severance pay  ,section #ejc7;b7 of     
title #aa1 ,united ,states ,code1 is    
amended--  7#a7 in paragraph 7#h71 by   
striking and at the end2  7#b7 in       
paragraph 7#i71 by striking the period  
and inserting a semicolon2 and  7#c7 by 
adding at the end the following3  7#aj7 
severance pay owed to employees of the  
debtor 7other than to an insider1 other 
senior management1 or a consultant      
retained to provide services to the     
debtor71 under a plan1 program1 or      
policy generally applicable to employees
 of the debtor 7but not under an        
individual contract of employment71 or  
owed pursuant to a collective bargaining

 agreement1 for layoff or termination on
 or after the date of the filing of the 
petition1 which pay shall be deemed     
earned in full upon such layoff or      
termination of employment2 and  4  #ajd4
  ,financial returns for employees and  
retirees  ,section #aabi7;a7 of title   
#aa1 ,united ,states ,code is amended-- 
7#a7 by adding at the end the following3
  7#ag7 ,the plan provides for recovery 
of damages payable for the rejection of 
a collective bargaining agreement1 or   
for other financial returns as          
negotiated by the debtor and the        
authorized representative under section 
#aaac 7to the extent that such returns  
are paid under1 rather than outside of1 
a plan74  2 and  7#b7 by striking       
paragraph 7#ac7 and inserting the       
following3  7#ac7 ,with respect to      
retiree benefits1 as that term is       
defined in section #aaad7;a71 the plan--
  7,a7 provides for the continuation    
after its effective date of payment of  
all retiree benefits at the level       

established pursuant to subsection      
7e77#a77;,b7 or 7g7 of section #aaad at 
any time before the date of confirmation
 of the plan1 for the duration of the   
period for which the debtor has         
obligated itself to provide such        
benefits1 or if no modifications are    
made before confirmation of the plan1   
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 petition2 
and  7,b7 provides for recovery of      
claims arising from the modification of 
retiree benefits or for other financial 
returns1 as negotiated by the debtor and
 the authorized representative 7to the  
extent that such returns are paid under1
 rather than outside of1 a plan74  4    
#aje4  ,priority for ,,warn ,act damages
  ,section #ejc7;b77#a77;,a77ii7 of     
title #aa1 ,united ,states ,code is     
amended to read as follows3  7ii7 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 title1 as a result of a violation  
of ,federal or ,state law by the debtor1
 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 case1 including an  
award by a court under section #bija of 
title #bi1 ,united ,states ,code1 of up 
to #fj 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 case1 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 title2  4  ,,ii  ,reducing   

,employees' and ,retirees' ,losses      
#bja4  ,rejection of collective         
bargaining agreements  ,section #aaac of
 title #aa1 ,united ,states ,code1 is   
amended by striking subsections 7a7     
through 7f7 and inserting the following3
  7a7 ,the debtor in possession1 or the 
trustee if one has been appointed under 
this chapter1 other than a trustee in a 
case covered by subchapter ,,iv of this 
chapter and by title ,i of the ,railway 
,labor ,act1 may reject a collective    
bargaining agreement only in accordance 
with this section4 ,in this section1 a  
reference to the trustee includes the   
debtor in possession4  7b7 ,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 section4 ,the       
trustee shall timely pay all monetary   
obligations arising under the terms of  
the collective bargaining agreement4    
,any such payment required to be made   

before a plan confirmed under section   
#aabi is effective has the status of an 
allowed administrative expense under    
section #ejc4  7c7  7#a7 ,if the trustee
 seeks modification of a collective     
bargaining agreement1 the trustee shall 
provide notice to the labor organization
 representing the employees covered by  
the agreement that modifications are    
being proposed under this section1 and  
shall promptly provide an initial       
proposal for modifications to the       
agreement4 ,thereafter1 the trustee     
shall confer in good faith with the     
labor organization1 at reasonable times 
and for a reasonable period in light of 
the complexity of the case1 in          
attempting to reach mutually acceptable 
modifications of such agreement4  7#b7  
,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     
debtor1 and shall reflect the most      

complete and reliable information       
available4 ,the trustee shall provide to
 the labor organization all information 
that is relevant for negotiations4 ,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 industry1 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 section4  7#c7 ,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 agreement1 
modifications proposed by the trustee-- 
7,a7 shall be proposed only as part of a
 program of workforce and nonworkforce  
cost savings devised for the            
reorganization of the debtor1 including 
savings in management personnel costs2  

7,b7 shall be limited to modifications  
designed to achieve a specified         
aggregate financial contribution for the
 employees covered by the agreement     
7taking into consideration any labor    
cost savings negotiated within the      
#ab-month period before the filing of   
the petition71 and shall be not more    
than the minimum savings essential to   
permit the debtor to exit bankruptcy1   
such that confirmation of a plan of     
reorganization is not likely to be      
followed by the liquidation1 or the need
 for further financial reorganization1  
of the debtor 7or any successor to the  
debtor7 in the short term2 and  7,c7    
shall not be disproportionate or overly 
burden the employees covered by the     
agreement1 either in the amount of the  
cost savings sought from such employees 
or the nature of the modifications4  7d7
  7#a7 ,if1 after a period of           
negotiations1 the trustee and the labor 
organization have not reached an        
agreement over mutually satisfactory    

modifications1 and further negotiations 
are not likely to produce mutually      
satisfactory modifications1 the trustee 
may file a motion seeking rejection of  
the collective bargaining agreement     
after notice and a hearing4 ,absent     
agreement of the parties1 no such       
hearing shall be held before the        
expiration of the #ba-;day period       
beginning on the date on which notice of
 the hearing is provided to the labor   
organization representing the employees 
covered by the agreement4 ,only the     
debtor and the labor organization may   
appear and be heard at such hearing4 ,an
 application for rejection shall seek   
rejection effective upon the entry of an
 order granting the relief4  7#b7 ,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 agreement1 
the court may grant a motion seeking    
rejection of a collective bargaining    

agreement only if1 based on clear and   
convincing evidence--  7,a7 the court   
finds that the trustee has complied with
 the requirements of subsection 7c72    
7,b7 the court has considered           
alternative proposals by the labor      
organization and has concluded that such
 proposals do not meet the requirements 
of paragraph 7#c77;,b7 of subsection    
7c72  7,c7 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 agreement2  7,d7 the court  
finds that implementation of the        
trustee's proposal shall not--  7i7     
cause a material diminution in the      
purchasing power of the employees       
covered by the agreement2  7ii7         
adversely affect the ability of the     
debtor to retain an experienced and     
qualified workforce2 or  7iii7 impair   
the debtor's labor relations such that  
the ability to achieve a feasible       
reorganization would be compromised2 and

  7,e7 the court concludes that         
rejection of the agreement and immediate
 implementation of the trustee's        
proposal is essential to permit the     
debtor to exit bankruptcy1 such that    
confirmation of a plan of reorganization
 is not likely to be followed by        
liquidation1 or the need for further    
financial reorganization1 of the debtor 
7or any successor to the debtor7 in the 
short term4  7#c7 ,if the trustee has   
implemented a program of incentive pay1 
bonuses1 or other financial returns for 
insiders1 senior executive officers1 or 
the #bj next most highly compensated    
employees or consultants providing      
services to the debtor during the       
bankruptcy1 or such a program was       
implemented within #ahj days before the 
date of the filing of the petition1 the 
court shall presume that the trustee has
 failed to satisfy the requirements of  
subsection 7c77#c77;,c74  7#d7 ,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  
section4  7#e7 ,at any time after the   
date on which an order rejecting a      
collective bargaining agreement is      
entered1 or in the case of an agreement 
entered into between the trustee and the
 labor organization providing mutually  
satisfactory modifications1 at any time 
after such agreement has been entered   
into1 the labor organization may apply  
to the court for an order seeking an    
increase in the level of wages or       
benefits1 or relief from working        
conditions1 based upon changed          
circumstances4 ,the court shall grant   
the request only if the increase or     
other relief is not inconsistent with   
the standard set forth in paragraph     
7#b77;,e74  7e7 ,during a period in     
which a collective bargaining agreement 
at issue under this section continues in

 effect1 and if essential to the        
continuation of the debtor's business or
 in order to avoid irreparable damage to
 the estate1 the court1 after notice and
 a hearing1 may authorize the trustee to
 implement interim changes in the terms1
 conditions1 wages1 benefits1 or work   
rules provided by the collective        
bargaining agreement4 ,any hearing under
 this subsection shall be scheduled in  
accordance with the needs of the        
trustee4 ,the implementation of such    
interim changes shall not render the    
application for rejection moot4  7f7    
7#a7 ,rejection of a collective         
bargaining agreement constitutes a      
breach of the agreement1 and shall be   
effective no earlier than the entry of  
an order granting such relief4  7#b7    
,notwithstanding paragraph 7#a71 solely 
for purposes of determining and allowing
 a claim arising from the rejection of a
 collective bargaining agreement1       
rejection shall be treated as rejection 
of an executory contract under section  

#cfe7;g7 and shall be allowed or        
disallowed in accordance with section   
#ejb7;g77#a74 ,no claim for rejection   
damages shall be limited by section     
#ejb7;b77#g74 ,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 7d7 or pursuant to    
subsection 7e71 and no provision of this
 title or of any other provision of     
,federal or ,state law may be construed 
to the contrary4  7g7 ,the trustee shall
 provide for the reasonable fees and    
costs incurred by a labor organization  
under this section1 upon request and    
after notice and a hearing4  7h7 ,a     
collective bargaining agreement that is 
assumed shall be assumed in accordance  
with section #cfe4  4  #bjb4  ,payment  
of insurance benefits to retired        
employees  ,section #aaad of title #aa1 
,united ,states ,code1 is amended--     
7#a7 in subsection 7a71 by inserting 1  
without regard to whether the debtor    

asserts a right to unilaterally modify  
such payments under such plan1 fund1 or 
program before the period at the end2   
7#b7 in subsection 7b77#b71 by inserting
 after section the following3 1 and a   
labor organization serving as the       
authorized representative under         
subsection 7c77#a712  7#c7 by striking  
subsection 7f7 and inserting the        
following3  7f7  7#a7 ,if a trustee     
seeks modification of retiree benefits1 
the trustee shall provide a notice to   
the authorized representative that      
modifications are being proposed        
pursuant to this section1 and shall     
promptly provide an initial proposal4   
,thereafter1 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             
modifications4  7#b7 ,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       
available4 ,the trustee shall provide to
 the authorized representative all      
information that is relevant for the    
negotiations4 ,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  
industry1 subject to the needs of the   
authorized representative to evaluate   
the trustee's proposals and an          
application pursuant to subsection 7g7  
or 7h74  7#c7 ,modifications proposed by
 the trustee--  7,a7 shall be proposed  
only as part of a program of workforce  
and nonworkforce cost savings devised   
for the reorganization of the debtor1   
including savings in management         
personnel costs2  7,b7 shall be limited 
to modifications that are designed to   
achieve a specified aggregate financial 
contribution for the retiree group      

represented by the authorized           
representative 7taking into             
consideration any cost savings          
implemented within the #ab-month period 
before the date of filing of the        
petition with respect to the retiree    
group71 and shall be no more than the   
minimum savings essential to permit the 
debtor to exit bankruptcy1 such that    
confirmation of a plan of reorganization
 is not likely to be followed by the    
liquidation1 or the need for further    
financial reorganization1 of the debtor 
7or any successor to the debtor7 in the 
short term2 and  7,c7 shall not be      
disproportionate or overly burden the   
retiree group1 either in the amount of  
the cost savings sought from such group 
or the nature of the modifications4  2  
7#d7 in subsection 7g7--  7,a7 by       
striking 7g7 and all that follows       
through the semicolon at the end of     
paragraph 7#c7 and inserting the        
following3  7g7  7#a7 ,if1 after a      
period of negotiations1 the trustee and 

the authorized representative have not  
reached agreement over mutually         
satisfactory modifications and further  
negotiations are not likely to produce  
mutually satisfactory modifications1 the
 trustee may file a motion seeking      
modifications in the payment of retiree 
benefits after notice and a hearing4    
,absent agreement of the parties1 no    
such hearing shall be held before the   
expiration of the #ba-;day period       
beginning on the date on which notice of
 the hearing is provided to the         
authorized representative4 ,only the    
debtor and the authorized representative
 may appear and be heard at such        
hearing4  7#b7 ,the court may grant a   
motion to modify the payment of retiree 
benefits only if1 based on clear and    
convincing evidence--  7,a7 the court   
finds that the trustee has complied with
 the requirements of subsection 7f72    
7,b7 the court has considered           
alternative proposals by the authorized 
representative and has determined that  

such proposals do not meet the          
requirements of subsection 7f77#c77;,b72
  7,c7 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 agreement2  7,d7 the court 
finds that implementation of the        
proposal shall not cause irreparable    
harm to the affected retirees2 and  7,e7
 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 bankruptcy1 such that confirmation 
of a plan of reorganization is not      
likely to be followed by liquidation1 or
 the need for further financial         
reorganization1 of the debtor 7or a     
successor to the debtor7 in the short   
term4  7#c7 ,if a trustee has           
implemented a program of incentive pay1 
bonuses1 or other financial returns for 
insiders1 senior executive officers1 or 

the #bj next most highly compensated    
employees or consultants providing      
services to the debtor during the       
bankruptcy1 or such a program was       
implemented within #ahj days before the 
date of the filing of the petition1 the 
court shall presume that the trustee has
 failed to satisfy the requirements of  
subparagraph 7f77#c77;,c74  2 and  7,b7 
by striking except that in no case and  
inserting the following3  7#d7 ,in no   
case  2 and  7#e7 by striking subsection
 7k7 and redesignating subsections 7l7  
and 7m7 as subsections 7k7 and 7l71     
respectively4  #bjc4  ,protection of    
employee benefits in a sale of assets   
,section #cfc7;b7 of title #aa1 ,united 
,states ,code1 is amended by adding at  
the end the following3  7#c7 ,in        
approving a sale under this subsection1 
the court shall consider the extent to  
which a bidder has offered to maintain  
existing jobs1 preserve terms and       
conditions of employment1 and assume or 
match pension and retiree health benefit

 obligations in determining whether an  
offer constitutes the highest or best   
offer for such property4  4  #bjd4      
,claim for pension losses  ,section #ejb
 of title #aa1 ,united ,states ,code1 is
 amended by adding at the end the       
following3  7l7 ,the court shall allow a
 claim asserted by an active or retired 
participant1 or by a labor organization 
representing such participants1 in a    
defined benefit plan terminated under   
section #djda or #djdb of the ,employee 
,retirement ,income ,security ,act of   
#aigd1 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 #djbb of such ,act1             
notwithstanding any claim asserted and  
collected by the ,pension ,benefit      
,guaranty ,corporation with respect to  
such termination4  7m7 ,the court shall 
allow a claim of a kind described in    

section #aja7e77;,c7 by an active or    
retired participant in a defined        
contribution plan 7within the meaning of
 section #c7cd7 of the ,employee        
,retirement ,income ,security ,act of   
#aigd 7#bi ,u4,s4,c4 #ajjb7cd7771 or by 
a labor organization representing such  
participants4 ,the amount of such claim 
shall be measured by the market value of
 the stock at the time of contribution  
to1 or purchase by1 the plan and the    
value as of the commencement of the     
case4  4  #bje4  ,payments by secured   
lender  ,section #ejf7;c7 of title #aa1 
,united ,states ,code1 is amended by    
adding at the end the following3 ,if    
employees have not received wages1      
accrued vacation1 severance1 or other   
benefits owed under the policies and    
practices of the debtor1 or pursuant to 
the terms of a collective bargaining    
agreement1 for services rendered on and 
after the date of the commencement of   
the case1 such unpaid obligations shall 
be deemed necessary costs and expenses  

of preserving1 or disposing of1 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        
interest44  #bjf4  ,preservation of jobs
 and benefits  ,chapter #aa of title    
#aa1 ,united ,states ,code1 is amended--
  7#a7 by inserting before section #aaja
 the following3  #aajj4  ,statement of  
purpose  ,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 activity4  2
  7#b7 in section #aabi7;a71 as amended 
by section #ajd1 by adding at the end   
the following3  7#ah7 ,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 activity4  2  7#c7  
in section #aabi7;c7-- 7,a7 by inserting
 7#a7 after 7c72 and  7,b7 by striking  
the last sentence and inserting the     
following3  7#b7 ,if the requirements of
 subsections 7a7 and 7b7 are met with   
respect to more than #a plan1 the court 
shall1 in determining which plan to     
confirm--  7,a7 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 activity2 and  7,b7 
confirm the plan that better serves such
 interests4  7#c7 ,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 subsection4  2 and  7#d7 
in the table of sections1 by inserting  

before the item relating to section     
#aaja the following3  #aajj4 ,statement 
of purpose4  4  #bjg4  ,termination of  
exclusivity  ,section #aaba7;d7 of title
 #aa1 ,united ,states ,code1 is amended 
by adding at the end the following3     
7#c7 ,for purposes of this subsection1  
cause for reducing the #abj-;day period 
or the #ahj-;day period includes the    
following3  7,a7 ,the filing of a motion
 pursuant to section #aaac 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 time4     
7,b7 ,the proposed filing of a plan by a
 proponent other than the debtor1 which 
incorporates the terms of a settlement  
with a labor organization if such plan  
is reasonably likely to be confirmed    
within a reasonable time4  4  #bjh4     
,claim for withdrawal liability         
,section #ejc7;b7 of title #aa1 ,united 
,states ,code1 as amended by section    

#ajc of this ,act1 is amended by adding 
at the end the following3  7#aa7 with   
respect to withdrawal liability owed to 
a multiemployer pension plan for a      
complete or partial withdrawal pursuant 
to section #dbja of the ,employee       
,retirement ,income ,security ,act of   
#aigd 7#bi ,u4,s4,c4 #acha7 where such  
withdrawal occurs on or after the       
commencement of the case1 an amount     
equal to the amount of vested benefits  
payable from such pension plan that     
accrued as a result of employees'       
services rendered to the debtor during  
the period beginning on the date of     
commencement of the case and ending on  
the date of the withdrawal from the     
plan4  4  ,,iii  ,restricting ,executive
 ,compensation ,programs  #cja4         
,executive compensation upon exit from  
bankruptcy  ,section #aabi7;a7 of title 
#aa1 ,united ,states ,code1 is amended--
  7#a7 in paragraph 7#d71 by adding at  
the end the following3 ,except for      
compensation subject to review under    

paragraph 7#e71 payments or other       
distributions under the plan to or for  
the benefit of insiders1 senior         
executive officers1 and any of the #bj  
next most highly compensated employees  
or consultants providing services to the
 debtor1 shall not be approved except as
 part of a program of payments or       
distributions generally applicable to   
employees of the debtor1 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 workforce42 and  7#b7 in  
paragraph 7#e7--  7,a7 in subparagraph  
7,a77ii71 by striking and at the end2   
7,b7 in subparagraph 7,b71 by striking  
the period at the end and inserting 2   
and2 and  7,c7 by adding at the end the 
following3  7,c7 the compensation       
disclosed pursuant to subparagraph 7,b7 
has been approved by1 or is subject to  
the approval of1 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 case4
  4  #cjb4  ,limitations on executive   
compensation enhancements  ,section     
#ejc7;c7 of title #aa1 ,united ,states  
,code1 is amended--  7#a7 in paragraph  
7#a71 in the matter preceding           
subparagraph 7,a7--  7,a7 by inserting 1
 a senior executive officer1 or any of  
the #bj next most highly compensated    
employees or consultants after an       
insider2  7,b7 by inserting or for the  
payment of performance or incentive     
compensation1 or a bonus of any kind1 or
 other financial returns designed to    
replace or enhance incentive1 stock1 or 
other compensation in effect before the 
date of the commencement of the case1   
after remain with the debtor's          
business12 and  7,c7 by inserting clear 
and convincing before evidence in the   
record2 and  7#b7 by amending paragraph 

7#c7 to read as follows3  7#c7 other    
transfers or obligations1 to or for the 
benefit of insiders1 senior executive   
officers1 managers1 or consultants      
providing services to the debtor1 in the
 absence of a finding by the court1     
based upon clear and convincing         
evidence1 and without deference to the  
debtor's request for such payments1 that
 such transfers or obligations are      
essential to the survival of the        
debtor's business or 7in the case of a  
liquidation of some or all of the       
debtor's assets7 essential to the       
orderly liquidation and maximization of 
value of the assets of the debtor1 in   
either case1 because of the essential   
nature of the services provided1 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 case4  4  #cjc4  ,assumption of     
executive benefit plans  ,section #cfe  
of title #aa1 ,united ,states ,code1 is 
amended--  7#a7 in subsection 7a71 by   
striking and 7d7 and inserting 7d71 7q71
 and 7r72 and  7#b7 by adding at the end
 the following3  7q7 ,no deferred       
compensation arrangement for the benefit
 of insiders1 senior executive officers1
 or any of the #bj 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     
#djda or #djdb of the ,employee         
,retirement ,income ,security ,act of   
#aigd1 on or after the date of the      
commencement of the case or within #ahj 
days before the date of the commencement
 of the case4  7r7 ,no plan1 fund1      
program1 or contract to provide retiree 
benefits for insiders1 senior executive 
officers1 or any of the #bj next most   
highly compensated employees of the     

debtor shall be assumed if the debtor   
has obtained relief under subsection 7g7
 or 7h7 of section #aaad to impose      
reductions in retiree benefits or under 
subsection 7d7 or 7e7 of section #aaac  
to impose reductions in the health      
benefits of active employees of the     
debtor1 or reduced or eliminated health 
benefits for active or retired employees
 within #ahj days before the date of the
 commencement of the case4  4  #cjd4    
,recovery of executive compensation  7a7
 ,in general  ,subchapter ,,iii of      
chapter #e of title #aa1 ,united ,states
 ,code1 is amended by inserting after   
section #efb the following3  #efc4      
,recovery of executive compensation  7a7
 ,if a debtor has obtained relief under 
subsection 7d7 of section #aaac1 or     
subsection 7g7 of section #aaad1 by     
which the debtor reduces the cost of its
 obligations under a collective         
bargaining agreement or a plan1 fund1 or
 program for retiree benefits as defined
 in section #aaad7;a71 the court1 in    

granting relief1 shall determine the    
percentage diminution in the value of   
the obligations when compared to the    
debtor's obligations under the          
collective bargaining agreement1 or with
 respect to retiree benefits1 as of the 
date of the commencement of the case    
under this title before granting such   
relief4 ,in making its determination1   
the court shall include reductions in   
benefits1 if any1 as a result of the    
termination pursuant to section #djda or
 #djdb of the ,employee ,retirement     
,income ,security ,act of #aigd1 of a   
defined benefit plan administered by the
 debtor1 or for which the debtor is a   
contributing employer1 effective at any 
time on or after #ahj days before the   
date of the commencement of a case under
 this title4 ,the court shall not take  
into account pension benefits paid or   
payable under such ,act as a result of  
any such termination4  7b7 ,if a defined
 benefit pension plan administered by   
the debtor1 or for which the debtor is a

 contributing employer1 has been        
terminated pursuant to section #djda or 
#djdb of the ,employee ,retirement      
,income ,security ,act of #aigd1        
effective at any time on or after #ahj  
days before the date of the commencement
 of a case under this title1 but a      
debtor has not obtained relief under    
subsection 7d7 of section #aaac1 or     
subsection 7g7 of section #aaad1 the    
court1 upon motion of a party in        
interest1 shall determine the percentage
 diminution in the value of benefit     
obligations when compared to the total  
benefit liabilities before such         
termination4 ,the court shall not take  
into account pension benefits paid or   
payable under title ,,iv of the         
,employee ,retirement ,income ,security 
,act of #aigd as a result of any such   
termination4  7c7 ,upon the             
determination of the percentage         
diminution in value under subsection 7a7
 or 7b71 the estate shall have a claim  
for the return of the same percentage of

 the compensation paid1 directly or     
indirectly 7including any transfer to a 
self-settled trust or similar device1 or
 to a nonqualified deferred compensation
 plan under section #dji;,a7d77#a7 of   
the ,internal ,revenue ,code of #aihf7  
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 case1 and any
 individual serving as chairman or lead 
director of the board of directors at   
the time of the granting of relief under
 section #aaac or #aaad or1 if no such  
relief has been granted1 the termination
 of the defined benefit plan4  7d7 ,the 
trustee or a committee appointed        
pursuant to section #aajb may commence  
an action to recover such claims1 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 #aabi1 any party in       
interest may apply to the court for     

authority to recover such claim for the 
benefit of the estate4 ,the costs of    
recovery shall be borne by the estate4  
7e7 ,the court shall not award          
postpetition compensation under section 
#ejc7;c7 or otherwise to any person     
subject to subsection 7c7 if there is a 
reasonable likelihood that such         
compensation is intended to reimburse or
 replace compensation recovered by the  
estate under this section4  4  7b7      
,technical and conforming amendment ,the
 table of sections for chapter #e of    
title #aa1 ,united ,states ,code1 is    
amended by inserting after the item     
relating to section #efb the following3 
#efc4 ,recovery of executive            
compensation4  4  #cje4  ,preferential  
compensation transfer  ,section #edg of 
title #aa1 ,united ,states ,code1 is    
amended by adding at the end the        
following3  7j7 7#a7 ,the trustee may   
avoid a transfer-- 7,a7 made-- 7i7 to or
 for the benefit of an insider          
7including an obligation incurred for   

the benefit of an insider under an      
employment contract7 made in            
anticipation of bankruptcy2 or  7ii7 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      
7including an obligation under a        
contract to provide services to such    
entity or to a debtor72 and  7,b7 made  
or incurred on or within #a year before 
the filing of the petition4  7#b7 ,no   
provision of subsection 7c7 shall       
constitute a defense against the        
recovery of a transfer described in     
paragraph 7#a74  7#c7 ,the trustee or a 
committee appointed pursuant to section 
#aajb may commence an action to recover 
such transfer1 except that1 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 #aabi1 any party in       
interest may apply to the court for     

authority to recover the claims for the 
benefit of the estate4 ,the costs of    
recovery shall be borne by the estate4  
4  ,,iv  ,other ,provisions  #dja4      
,union proof of claim  ,section #eja7;a7
 of title #aa1 ,united ,states ,code1 is
 amended by inserting 1 including a     
labor organization1 after ,a creditor4  
#djb4  ,exception from automatic stay   
,section #cfb7;b7 of title #aa1 ,united 
,states ,code1 is amended--  7#a7 in    
paragraph 7#bg71 by striking and at the 
end2  7#b7 in paragraph 7#bh71 by       
striking the period at the end and      
inserting 2 and2 and  7#c7 by adding at 
the end the following3  7#bi7 of the    
commencement or continuation of a       
grievance1 arbitration1 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 title1 or   
the payment or enforcement of an award  
or settlement under such proceeding4  4