Borden Dairy Company – Prepetition Lender Objects to Proposed KEIP and KERP that “Showers” Bonuses on Management During COVID-19 Crisis

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May 11, 2020 – Prepetition lender PNC Bank, National Association objected to the Debtors’ proposed Key Employee Retention Plan (the "KERP") and Key Employee Incentive Plan (the "KEIP”) arguing that (i) the proposed $4.0mn of payments "are excessive and unnecessary" in respect of Debtors (and their management) who are projecting a $20.0mn liquidity shortfall as they near the end of their sale process and (ii) that as payments under the proposed plans have not been budgeted for, their payment would constitute termination events under an existing cash collateral order [Docket No. 604]. 

The objection continues, casting scorn on plans that would "shower" management with bonuses that, if paid at all, should be left to the discretion (and pocketbook) of the Debtors' new owners, arguing that the Debtors' management should just be thankful to have jobs given that "the national unemployment rate for April 2020 surged to a record high of 14.7%, with 20.5 million jobs eliminated…. [the plans] even more absurd in this historic recession when millions of Americans are either losing their jobs or taking pay cuts."

The objection states, “The KERP and KEIP plans are excessive and unnecessary under the circumstances. The Debtors’ recent projections show a liquidity shortfall of approximately $20 million based on accrual of administrative expenses and estate professional fees to case conclusion prior to adding any KERP/KEIP payments. Meanwhile, the national unemployment rate for April 2020 surged to a record high of 14.7%, with 20.5 million jobs eliminated. Nevertheless, the Debtors – without the support of the Agent or the Committee – seek to increase their liquidity shortfall and shower their officers and managers with more than $4 million of bonuses on the eve of a sale of the company to a new owner. Such a decision is more properly made by a new owner (whether through a sale or plan) and not the existing board of managers on its way out.

Remarkably, the KERP is structured to pay 25% of the approximate $2 million upon Court approval notwithstanding the lack of authority for this expense in the Debtors’ cash collateral budget and the lack of unencumbered cash for any such payments. Agent opposes the payment of any KERP or KEIP amounts from Agent’s cash collateral.

This is not the first time in the cases the Debtors have sought to pay bonuses. The Debtors previously requested permission to pay up to $1,575,000 in alleged non-insider prepetition bonuses to certain employees in connection with their requested first day relief…The Debtors eventually withdrew that request. However, with the KERP/KEIP Motion, the Debtors appear to have renewed and broadened their request.

If the KERP is a means to pay prepetition AIP obligations, the KERP/KEIP Motion does not request authority, much less cite any law, to enable Debtors to pay prepetition bonuses in excess of the $13,650 statutory cap under section 507(a)(4) of the Bankruptcy Code. Regardless of whether the Debtors may exceed the section 507(a)(4) cap, the Debtors are permitted to use cash collateral only in accordance with the approved budget…The current approved budget does not include payment of the KERP/KEIP bonuses, and any such payment would be a ‘Termination Event’ under the Final Cash Collateral Order…Yet, the KERP/KEIP Motion fails to provide any explanation as to how the Debtors intend to pay over $4 million in bonuses (the proposed KEIP bonus program includes up to $2.015 million to insiders and the proposed KERP bonuses total approximately $2.027 million) without violating the Final Cash Collateral Order.

Many employees received temporary hazard pay increases recently in connection with the COVID-19 health crisis, although not in the original budget. Additional pay increases now will only strain liquidity. Such a move by management is absurd at a time when the company is being marketed for sale. It is even more absurd in this historic recession when millions of Americans are either losing their jobs or taking pay cuts.

As the proponents of the KERP and KEIP, the Debtors bear the burden of proving that such plans satisfy the applicable provisions of the Bankruptcy Code…The KERP/KEIP Motion fails in this regard because there are no measured performance benchmarks to be achieved that would entitle these eight executives to an earnout. The KEIP allegedly ‘is designed to incentivize the KEIP Participants … to preserve and maximize the value of Borden’s business…’ but at this late stage there is very little prospective work to be done to maximize value or performance benchmarks to achieve, as the sale process is nearing completion and the auction will occur in less than three weeks. Given the lack of proper incentives to satisfy the statutory requirements, the KERP/KEIP Motion should be denied.”

The objection also raises issues as to the timing of the Debtors' motion, raising suspicions as to the Debtors' motives for requesting an expedited hearing on the KEIP/KERP motion. The ojection continues: "Without notice to Agent, Debtors filed the Motions on Friday night and requested an expedited hearing on May 27. The timing is suspicious because Debtors faced no filing deadline and contemporaneously filed a motion for an expedited disclosure statement hearing on June 4, which is also the tentative date for the sale hearing in these cases. Why the KERP/KEIP Motion needs to be heard one week earlier remains a mystery. Simply, Debtors fail to establish the need for expedited consideration."

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