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Tops seeks up to $1.3 million bonus for CEO in bankruptcy

Tops Markets wants to pay up to $3.6 million in bonuses to its five highest-ranking executives if the supermarket company exceeds its financial targets as it restructures its business in bankruptcy.

The company also is proposing a separate bonus plan – with up to $3.5 million in payments – that would go to 115 key employees as part of a plan designed to both reward them for bettering Tops' financial situation and give them an incentive to stay at Tops and not seek new jobs elsewhere as the chain moves through the bankruptcy process. That plan would offer bonus payments of $10,000 to $100,000 apiece to the 115 Tops employees.

The bonus plan, which Tops proposed last week, would allow the company to pay CEO Frank Curci more than $1.3 million and John Persons, the chain's president and chief operating officer, more than $1 million if the company exceeds certain financial targets by 10 percent.

Bonus plans aimed at retaining and rewarding top executives are common - even at companies that have filed for bankruptcy. The base salaries of Tops' highest-ranking executives are in the bottom quarter of other executives at comparable companies in the grocery industry, said Zachary P. Georgeson, a consulting director at Towers Watson Delaware, which helped Tops prepare the bonus plan.

The bonus plans are "essential" to Tops' reorganization efforts, said Michael Buenzow, the financial consultant who is Tops' chief restructuring officer, in documents filed with the U.S. Bankruptcy Court.

Since the company made its bankruptcy filing in February, "certain key employees have resigned," Buenzow said. "Other key employees may be actively looking for new positions outside the company, particularly in view of the well-documented labor shortages."

"I believe the employee programs are reasonable, appropriately designed and narrowly tailored," Buenzow said.

The union that represents most of Tops' 14,000 workers said it will "vigorously object" to the bonus plan, which will be discussed during a court hearing May 10.

"We cannot stand by and let Tops management reap bonus rewards, while our Tops members face pension cuts, reduced hours and higher health care costs," said Frank DeRiso, the president of the United Food and Commercial Workers union Local One.

"It's outrageous that Tops employees, vendors, landlords and suppliers will be taking a drastic haircut during these bankruptcy proceedings, and Tops management wants to continue to be rewarded with undeserved bonuses," DeRiso said.

The bonus plan would make payments to the executives and managers only if Tops comes close to meeting its financial targets, which center around the company's cash generation but were not spelled out in detail in the filing.

For instance, if Tops meets its financial target, Curci would receive a bonus of $651,288. But if Tops exceeds its financial targets by 10 percent during each of the final three quarters of this year, Curci's payments could top $1.3 million. If Tops' performance falls 10 percent below its financial targets, Curci would receive $162,822. If Tops falls more than 10 percent below its target during a given quarter, no bonuses would be paid for that three-month period.

The financial targets "certainly are not easily achievable," Buenzow said. The "highly competitive nature" of the grocery business, coupled with the entry of new competitors, such as Whole Foods, into its markets, along with the rising minimum wage and the negative connotations of a bankruptcy filing, all are challenges that Tops is facing, he said.

Burt Flickinger, the Buffalo native who is the managing director at New York City retail consultant Strategic Resource Group, said he thinks the retention bonuses are inappropriate.

"Tops needs to make meaningful changes in the field, in the front office and in the headquarters," he said. "There's a lot of tremendous talent available."

Towers Watson began working with Tops executives on the bonus plan in January – a month before the company made its bankruptcy filing, the court papers said.

Tops asked the Bankruptcy Court last week for permission to move forward with a plan to close "a few" of its underperforming stores. Tops said in its bankruptcy filing that 21 of its 169 stores were a drain on its cash, and Flickinger estimated that the chain could close between 18 and 24 of its stores.

Tops also has told UFCW officials that it plans to ask a bankruptcy court judge to allow it to reduce its contributions by nearly two-thirds to the already underfunded pension plan that covers most of its employees.

Buenzow said the bonus plan for the 115 key employees is needed because those workers have important expertise and experience that would set back the reorganizatin efforts if they were to leave. Those workers also are being asked to work longer hours and take on added responsibility during the bankruptcy.

Who would get bonuses?

Executive                        Title                                                             Proposed bonus

Frank Curci                    Chairman & CEO                                      $162,822 - $1.3 million

John Persons                President & COO                                       $130,688 - $1.05 million

Jack Barrett                  Executive VP, human resources             $53,059 - $424,474

David Langless             Executive VP & CFO                                  $52,500 - $420,000

Ron Ferri                       Executive VP, operations                        $52,500 - $420,000

NOTE: Lowest bonus figure is if Tops achieves 90 percent of its financial target. Highest figure is bonus if Tops exceeds its financial target by 10 percent.

SOURCE: U.S. Bankruptcy Court documents

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