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LONDON (Reuters)—Eastman Kodak Co., an American icon that is struggling to survive, could find that one of its costliest problems hails from overseas.
The bill is coming due for years of generous pensions and other benefits that the photography company promised employees, especially in the United Kingdom, where it has manufacturing operations dating to the 1800s and still supports thousands of retirees.
Whatever Kodak's fate as it grapples with a global shift to digital photography, five consecutive years of annual net losses and a consistent cash drain as it spends on new businesses, the U.K. pension problems are not going away.
Kodak has promised to spend about $800 million over the next decade to shore up its U.K. pension fund. Unlike its U.K. counterpart, Kodak's U.S. fund has gotten no such pledges from the company, and as of the end of 2010 was fully funded.
The U.K. Pensions Regulator can seek legal authority under U.K. law to take aim beyond its borders—its so-called moral hazard powers—setting up a scenario in which U.K. pension interests could be a major factor in any Kodak restructuring. U.K. pension fund trustees and regulators have increasingly tried, with some success, to maneuver U.S. companies into paying more into underfunded U.K. plans in recent years.
There could be "substantial pensions claims" from the U.K. against Kodak if the company lands in bankruptcy, said attorney Paul Silverstein of law firm Andrews Kurth L.L.P. He is advising some Kodak creditors who may have claims against the company.
Rochester, N.Y.-based Kodak is engaged in financing negotiations with its lenders, as part of an effort to raise cash, according to a source with direct knowledge of the talks but who declined to be identified because the discussions are not public.
Bankruptcy is a possible outcome, this person said.
Kodak spokesman Christopher Veronda this week declined to comment on the possibility of bankruptcy or on the role of the U.K. pension in the company's current restructuring. The company said Tuesday it was reorganizing into two business units, commercial and consumer, down from three. The move came weeks after three board members resigned without explanation.
Talk of a Kodak meltdown heated up in September after the company drew down $160 million in cash from a credit line, an unprecedented move for Kodak.
Kodak had $862 million in cash as of late September, down from $1.4 billion a year earlier. It warned in a November filing with the U.S. Securities and Exchange Commission that its ability to keep operating over the next 12 months depended on its ability to issue new debt or sell patents.
Pensions have been a looming issue for Kodak, which like many U.S. manufacturers offered extensive medical benefits and pension payouts for workers when times were better and such perks were standard.
Kodak's ties to the U.K. began in the 1800s and continued in the 1900s. Whole communities were built around the plants, similar to its hometown of Rochester.
Kodak opened a sales office in London in 1885 and built its first U.K. manufacturing plant in 1891 in Harrow, in northwest London.
"In the town where I grew up, Kodak was one of the biggest employers," said Susan Laws, who once worked at Kodak to finance law school and is now a corporate finance and mergers and acquisitions lawyer for Duane Morris in the U.K. Her mother is a Kodak pensioner.
"It was a paternalistic company," she said. "Whole families worked there, and it was ahead of the game in giving benefits."
In 2007, Kodak first guaranteed to shore up its U.K. fund. Then in its 2010 annual report, it disclosed a new obligation to make about $830 million in aggregate payments into the U.K. pension plan from 2011 through 2022.
Typically in U.S. bankruptcies, pension obligations are an unsecured claim, falling to the bottom of the list of creditors to be paid back. U.S. pension obligations often are shifted to the U.S. pension insurer, the Pension Benefit Guaranty Corp., once a company files for bankruptcy.
However, the U.K. Pensions Act of 2004 gave the U.K. Pensions Regulator legal authority to more broadly seek financial support for pensions.
If Kodak does file for bankruptcy protection, the Kodak U.K. pension trustees or U.K. regulators may try to exert power in the United States, as they have in the bankruptcies of Lehman Brothers Holdings Inc., Nortel Networks Corp., Visteon Corp. and Sea Containers Ltd.
Currently, Lehman and Nortel's overseas counterparts are involved in a U.K. case that addresses whether pension fund claims can get priority over other claims in the United States. And, after a U.K. court said Sea Containers owed money to its U.K. pension fund, Sea Containers agreed on a settlement that included the company contributing to its U.K. pension fund.
When asked about Kodak on Wednesday, a spokesman for the U.K. Pensions Regulator said the office "is aware of the situation and in contact with the Pensions Trustee." The spokesman, Ben Lloyd, declined further comment.
Hogan Lovells L.L.P., the law firm advising the Kodak U.K. pension trustees in London, declined comment on Wednesday.
Kodak's overseas pension and benefit obligations have been underfunded for most of the past decade, its annual reports for that time period show.
The company has employee pension plans in France, for instance, but the U.K. Pension Regulator is unique in that it has aggressive legal authority to pursue funding claims abroad.