DJ Creditors Say Hostess May Have 'Manipulated' Executive Pay
By Rachel Feintzeig
Of DOW JONES DAILY BANKRUPTCY REVIEW
Unsecured creditors suspect that Hostess Brands Inc. may have "manipulated" its executives' pay--sending its former chief executive's salary, in particular, skyrocketing- in the months leading up to its Chapter 11 filing, in an effort to dodge the Bankruptcy Code's compensation requirements, according to a redacted court filing reviewed by Dow Jones.
The official committee representing Hostess's unsecured creditors wants to launch a formal investigation in the bankruptcy case, hoping to dig deeper into the bakery company's senior executive compensation. The information the group has already gathered suggests "the possibility" that the company converted a chunk of its top executives' pay from performance-based bonuses to guaranteed salary, "at least in part to sidestep" rules designed to ensure that companies in bankruptcy aren't enticing their employees to stay on board with the promise of cash.
"As such, the debtors' continued payment of the executives' salaries in these increased amounts may violate the Bankruptcy Code," the unsecured creditors said in documents that were filed with the U.S. Bankruptcy Court in White Plains, N.Y., but largely redacted. Dow Jones was able to view those details because when the papers were saved to a word-processing program, the redactions disappeared.
A spokesman for Hostess dismissed the creditors' allegations.
"We do not believe their theory has any basis in law," he said. "Nevertheless, we are working cooperatively with the committee to address their concerns and expect to resolve this amicably."
In court papers, the creditors say testimony from Hostess's executive vice president of human resources indicates that "in the run-up to bankruptcy"--when Hostess had already hired bankruptcy attorneys--it was also working to shift its compensation structure. Hostess slashed bonuses payable only if certain performance goals were met and, on July 26, the company's compensation committee signed off on "substantial salary increases for numerous senior executives," the creditors said, calling the jumps "dramatic."
Hostess's then-CEO, Brian Driscoll, saw his salary rise to $2.55 million from $750,000--a 300% increase.
"Other executives' salaries were increased by from 35% to 80%," the creditors said.
While Driscoll--who abruptly abandoned his post at Hostess's helm last month, leaving a restructuring expert to take his place--ultimately refused a portion of the salary bump, others seem to have kept the funds, the creditors said. They noted that the company continues to pay the prebankruptcy salary increases, no piece of which was "made contingent upon any aspect of the debtors' business performance or operations."
Hostess's own compensation consultant noted "that the increased salaries were not incentive compensation at all," the creditors said, and urged the company to tie the payments to company performance and wrap them into an incentive plan once Hostess filed for bankruptcy. But Hostess "disregarded" the suggestion, the creditors said, and also failed to disclose that it had tweaked the executives' pay in the six months leading up to the bankruptcy. The creditors only learned of the changes during a February deposition of the human resources executive.
"The committee viewed this testimony with grave concern," the creditor group said. It sought more information, but Hostess "refused to cooperate."
The creditors are now turning to the bankruptcy court for help, seeking a judge's clearance to launch a formal probe. They want access to documents regarding the compensation changes, minutes of meetings of the board of directors and the compensation committee and documents from the outside compensation consultant brought on by Hostess, among other information.
Hostess's Chapter 11 case has been stalled for the last several weeks as the company and its unions continue to negotiate behind closed doors and both sides prepare for an April 17 trial over the company's request to shed its collective bargaining agreements in bankruptcy.
On Tuesday, the company filed a request for more time to propose a bankruptcy-exit plan, saying it couldn't move forward with a Chapter 11 proposal until it makes headway with regards to its labor issues and attempt to nab new capital. The company noted that it has launched a "parallel process" to pursue a sale of its assets "as a failsafe," should Hostess not obtain the changes it wants to its union deals.
The maker of Twinkies and Wonder Bread, which filed for bankruptcy in January, had long said it was actively searching for potential new investors and buyers but had resisted calls from creditors to launch a full-blown sale process before it dealt with its union issues.
(Dow Jones Daily Bankruptcy Review covers news about distressed companies and those under bankruptcy protection.)
-By Rachel Feintzeig, Dow Jones Daily Bankruptcy Review; 212-416-3755; firstname.lastname@example.org