The U.S. Trustee assigned to the Aspect Software Parent case filed with the U.S. Bankruptcy Court an objection to the Debtors’ motion to authorize and approve the performance award program.
The Trustee asserts, “[T]he Debtors assert that the Performance Award Program is an incentive-based program. In order for a debtor to avoid running afoul of section 503(c)(1)’s restriction on retention pay, the debtor must demonstrate that its bonus plan is tied to significant hurdles which are difficult to achieve.”
The Trustee also filed with the Court an objection to Debtors’ motion to file under seal Exhibits to the Debtors’ motion of performance award program. The trustee asserts, “The Debtors assert that information contained in Exhibit D and Exhibit E – the proposed performance bonus amounts and the metrics for determining if the awards have been earned – constitute commercially sensitive compensation information….First, the performance award amounts are not ‘so critical’ to the Debtors’ operations as to provide an unfair advantage to the Debtors’ competitors. Furthermore, these grounds are not sufficient to outweigh the presumption in favor of access, and permitting all parties in interest the opportunity to determine the allowability of the payments. The Debtors also seek to seal the performance-based metrics. The Debtors simply assert that this information ‘includes highly confidential information that enumerates the Debtors’ business strategy and budgeting thresholds.’ These metrics, however, are required to be a ‘stretch’ and difficult to achieve, incentivizing the employees to perform. The presumption of access and permitting parties in interest the ability to review and potential object to the program outweighs any interest in secrecy.”
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