Hostess, which had its wind-down plan approved by the U.S. Bankruptcy Court in the Southern District of New York on Nov. 30, has set a deadline date of Dec. 10 for all interested parties to submit bids, Ignon said. No dates have been set for when Hostess will make a decision on what bids — if any — it will accept.
Although not mentioned by name by Ignon, companies that have been rumored to be in the mix for Hostess assets include Flowers Foods, Inc.; Grupo Bimbo SAB de CV; McKee Foods Corp.; ConAgra Foods, Inc.; Sun Capital Partners, Inc.; C. Dean Metropoulos & Co.; and Hurst Capital LLLP.
In making its ruling on Nov. 30, the Court said Hostess, “established sound business justification for the relief requested” in its wind-down plan motion, including the use and sale of assets. Additionally, the Court said Hostess “appropriately exercised their business judgment by determining to implement the wind-down plan, including the sale of various assets in connection therewith.”
Business justifications made by Hostess for the wind down included the fact that a freefall shutdown and liquidation would, among other things, “irreparably damage production equipment, result in the failure to dispose, or improper disposal, of waste materials, materially adversely affect the debtors’ ability to maximize the sale value of their assets, and could force the debtors to incur significant administrative expenses.”
The court also determined that Hostess’ implementation of its Employee Retention Plan and Senior Management Incentive Plan were justified by the facts and circumstances.
“The debtors’ implementation of the Employee Retention Plan is justified by the facts and circumstances in that it covers only non-senior management employees of the debtors (union and non-union) and is narrowly designed to retain non-senior management employees who are vital to the successful implementation of the wind-down plan and the maximization of value for the benefit of all parties in interest,” the Court stated. “The debtors’ implementation of the Senior Management Incentive Plan is (1) not designed primarily for retentive effect and (2) is justified by the facts and circumstances in that it is narrowly tailored to incentivize remaining senior management employees who are vital to the successful implementation of the wind-down plan and the maximization of value for the benefit of all parties in interest, including those with accrued administrative expense claims.”
In terms of selling off excess ingredients and packaging, the court authorized Hostess’s motion so long as the company complies with its obligations under the DIP credit agreement.
“For sales of excess ingredients and excess packaging for more than $750,000, the debtors shall consult with the creditors’ committee, the DIP agent and the pre-petition revolving agent with respect to such sales, but need not comply with the advance notice procedures set forth in the De Minimis asset sale order,” the Court said.
Additionally, the Court noted that any excess ingredients and packaging sold under the wind-down plan and all perishable inventory sold at going-out-of business (GOB) sales “shall be sold free and clear of any and all liens, claims, interests and encumbrances of any kind or nature.” Any perishable inventory not sold at the conclusion of the GOB sales may be abandoned and properly disposed of, the court added.