Tom's Foods, former employees granted examinations on missing sale documents, pension plan funding

By Caroline Salls

Pittsburgh, May 12 - Toms Foods, Inc.'s responsible officer Eugene I. Davis obtained approval for an examination of Heico Holding Inc. in relation to asset sale-related documents taken from Toms Foods' offices, according to a Friday filing with the U.S. Bankruptcy Court for the Middle District of Georgia.

According to the motion, on Jan. 20, Davis learned that Heico agents and/or employees had removed documents from the Tom's corporate offices before the closing of the sale of the company's assets to Columbus Capital Acquisition Corp., and the documents were the property of the Tom's Chapter 11 estate at the time.

Heico returned some of the documents, but initially refused to return the remaining documents, citing confidentiality and/or privilege issues.

In subsequent negotiations, Heico agreed to return the remaining documents if Davis would enter a confidentiality agreement.

The requested examination would investigate who directed the removal of records from Tom's corporate headquarters and reviewed the documents after their removal and for what purposes, as well as whether documents were altered, copied, summarized or destroyed.

Davis said the examination would also investigate on whose behalf Heico is asserting claims of confidentiality and/or privilege and the basis for those claims.

Alleged pension plan underfunding

In addition, Tom's Foods' former employees obtained approval of an examination of chief executive officer Rolland G. Divin, chief financial officer Al Gaston, benefit consultants Geller Group and agent Sheldon M. Geller and Will Emory & McDermott and agent/partner Stanley H. Meadows, as well as Wachovia Securities Corp., in connection with an alleged $40 million underfunding of the company's pension plan.

The documents to be examined include contracts and documents related to any company qualified pension plans, financial records of all pension plans and documents on all decisions made in connection with any pension plans.

The former employees are Lyn D. Anderson, Carroll Welker, Richard Olson, Oscar L. Betts, Thomas B. Black III, Al W. Davis III, Herbert E. Graetz, Rebecca W. Grose, Charles S. Middlebrooks, Ernest G. Moore, Jeanette Nuckles, Andy Robinson, Paul C. Serff, Rupert Triplitt, Mary Anne Willis and James White.

Tom's, a Columbus, Ga.-based snack food company, filed for bankruptcy on April 6, 2005. Its Chapter 11 case number is 05-40683.

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