Weinman v. Walker (In re Adam Aircraft Industries, Inc.)

510 B.R. 342
CourtBankruptcy Appellate Panel of the Tenth Circuit
DecidedMay 15, 2014
DocketBAP No. CO-13-049; Bankruptcy No. 08-11751; Adversary No. 10-01098
StatusPublished
Cited by11 cases

This text of 510 B.R. 342 (Weinman v. Walker (In re Adam Aircraft Industries, Inc.)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weinman v. Walker (In re Adam Aircraft Industries, Inc.), 510 B.R. 342 (bap10 2014).

Opinion

OPINION

JACOBVITZ, Bankruptcy Judge.

The Chapter 7 trustee (“Trustee”) for debtor Adam Aircraft Industries (“AAI”) appeals a bankruptcy court order denying a portion of his preference and fraudulent conveyance claims against the defendant, Joseph Walker (“Walker”). We affirm.

I. BACKGROUND

AAI designed and manufactured carbon composite aircraft before filing a voluntary Chapter 7 bankruptcy petition on February 15, 2008 (“Petition Date”). Walker was AAI’s president and a member of AAI’s board of directors (the “Board”) [346]*346from approximately 2003 or 2004 until early February 2007. Walker and AAI did not have a written employment agreement.

At all relevant times George Adam, Jr. (“Adam”) — who founded AAI — was AAI’s chief executive officer and chairman of the Board. On February 1, 2007, two “outside” members of AAI’s Board, Sanjeev Mehra (“Mehra”) and Michael Bierman,2 informed Adam that the Board had decided to terminate Walker’s employment as President and replace him with Duncan Koerbel (“Koerbel”). That evening Adam met with Walker and informed him of the Board’s decision. The decision came as a complete surprise to both Walker and Adam. At the time, AAI was negotiating with Morgan Stanley, an investment banking firm, for substantial debt financing. Because that funding was critical to AAI, it was important that Walker’s termination not disrupt the negotiation process. The Board therefore gave Walker the opportunity to “resign.” Adam and Walker discussed this option during their meeting.

After the meeting, Walker went to his office at AAI to retrieve his personal belongings. While there, just minutes after midnight, Walker sent an e-mail to Adam resigning as President and from the Board and proposing severance terms. In his email Walker proposed the following severance terms: (1) severance pay of $250,000 annually for two years; (2) health insurance for the same period; (8) refund of a $100,000 deposit Walker made for the future purchase of an AAI aircraft; and (4) repurchase of Walker’s Series F preferred AAI stock shares for $100,000. In exchange, Walker offered to be a “strong supporter” of AAI, to be available as a consultant for two years, not to work for any competitor, and to tell all parties that he resigned to devote his time to a personal situation. Walker left AAI after sending the e-mail, never to return.

The next morning, Friday, February 2, Koerbel took over as AAI’s new President, and AAI held an “all hands” meeting to announce Walker’s resignation, Koerbel’s election as the new President, and John Wolfs (“Wolf’) appointment to the Board. The same morning Walker met briefly with Mehra in the lobby of an area hotel, a meeting Walker described as a “high-level, professional exit interview.”3 On the following Monday (February 5), the Board held a telephonic meeting during which Walker’s resignation was accepted, effective February 2, 2007. Walker did not attend or participate in the meeting. The Board then appointed Wolf as a new Board member (no effective date specified) and elected Koerbel as the new President, effective February 2.

On February 13, 2007, Walker and AAI executed a Memorandum of Understanding (“MOU”) outlining the financial terms of Walker’s severance.4 The same day, they also executed a Separation Agreement and Release (“February Agreement”), under which AAI agreed to pay Walker severance in accordance with the MOU. The February Agreement provided that Walker’s “employment with [AAI] ter[347]*347minated effective March 1, 2007.” The MOU and the February Agreement were prepared, at least in part, by Koerbel. Together they will be referred to as the “Severance Agreements.”

On March 19, Walker e-mailed Kim Ma-digan (“Madigan”), AAI’s vice president of human resources, requesting a status update on his plane deposit and stock purchase refunds. The next day, AAI issued a check refunding Walker’s plane deposit, with interest. The credit agreement being negotiated between AAI and Morgan Stanley prohibited AAI from repurchasing its stock. The agreement was revised to exclude the repurchase of Walker’s stock from this negative covenant to avoid problems with the Morgan Stanley funding. The Morgan Stanley deal closed in May 2007, infusing AAI with approximately $80 million.

Around the same time, Walker and AAI executed another Separation Agreement (the “May Agreement”). The May Agreement was substantially similar to the Severance Agreements. It changed the term “Separation Date” to “Change of Position Date.” The May Agreement also provided that Walker’s “employment as President terminated effective March 1, 2007” and that, as of that date, his position became “field sales liaison.” Walker never performed any services as a “field sales liaison,” and the parties did not intend for him to do so. Just what the stated separation date was intended to accomplish is not clear, as Walker had resigned as president and director of AAI in the early hours of February 2, and the Board of Directors formally accepted that resignation on February 5, “effective” February 2. Neither party offered an explanation for the changes appearing in the May Agreement. Several months later, Madigan e-mailed AAI’s chief financial officer to request that Walker’s stock purchase refund be expedited. Thirty days later, AAI issued a check to Walker for the repurchase of his stock at its issuing price.

In the one year period before the Petition Date, AAI made the following payments to Walker: 1) $105,704.11 in March, as a refund of his plane deposit; 2) $100,002 in July to repurchase his AAI stock; and 3) $250,000.08 in severance salary payments. Walker received $62,500.02 of the total severance payment amount within the 90-day period immediately prior to the Petition Date.

Trustee brought an adversary proceeding against Walker, seeking to recover all of the payments AAI made to him after his termination pursuant to 11 U.S.C. §§ 547(b)(4) and 548(a)(1)(B).5 The bankruptcy court conducted a trial on the merits of Trustee’s complaint, and ultimately granted judgment allowing Trustee to avoid the $62,500.02 paid to Walker within 90 days before the Petition Date pursuant to § 547(b)(4)(A).6 The bankruptcy court denied Trustee’s remaining claims under § 547 and § 548. Trustee timely appealed the bankruptcy court’s decision. Walker did not appeal.

II. APPELLATE JURISDICTION

This Court has jurisdiction to hear timely filed appeals from “final judgments, orders, and decrees” of bankruptcy courts [348]*348within the Tenth Circuit, unless one of the parties elects to have the district court hear the appeal.7 A judgment that resolves a bankruptcy adversary proceeding is final for purposes of appeal.8 Since neither party elected to have the appeal heard by the United States District Court for the District of Colorado, they have consented to appellate review by this Court.

III. ISSUES AND STANDARDS OF REVIEW
1.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
510 B.R. 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weinman-v-walker-in-re-adam-aircraft-industries-inc-bap10-2014.