Attached files
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| EX-99.1 - VERIFIED PETITION FOR DISSOLUTION FILED IN THE COURT OF CHANCERY OF THE STATE OF - Swisher Hygiene Inc. | swsh_ex991.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________________
FORM 8-K
_______________________________
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February
6, 2018
_______________________________
SWISHER HYGIENE INC.
(Exact name of registrant as specified in its charter)
_______________________________
Delaware
(State or Other Jurisdiction
of Incorporation)
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001-35067
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27-3819646
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(Commission
File Number)
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(I.R.S.
Employer
Identification
No.)
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350 East Las Olas Boulevard
Suite 1600
Fort Lauderdale, FL
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33301
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(Address of Principal Executive Offices)
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Zip
Code)
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(203) 682-8331
(Registrant’s Telephone Number, Including Area
Code)
Not Applicable
(Former Name or Former Address, If Changed Since Last
Report)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
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☐
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Written
communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
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☐
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
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☐
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2 (b))
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☐
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4 (c))
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Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (17 CFR
§230.405) or Rule 12b-2 of the Securities Exchange Act of 1934
(17 CFR §240.12b-2).
Emerging growth
company ☐
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange
Act. ☐
Item 8.01. Other Events
On
February 6, 2018, Swisher Hygiene Inc. (the “Company”)
filed a Verified Petition for Dissolution (the
“Petition”) in the Court of Chancery of the State of
Delaware (the “Delaware Court”), styled In re Swisher Hygiene Inc., C.A. No.
2018-0080-SG (Del. Ch.). The Petition was filed pursuant to the
dissolution and claims process outlined in Section 280 of the
General Corporation Law of the State of Delaware
(“DGCL”), and is a further step in the Company’s
dissolution and liquidation. A copy of the Petition, without its
attached exhibits, is filed as Exhibit 99.1 to this Form
8-K.
The
Petition identifies claims that are the subject of a pending
action, suit or proceeding; certain claims asserted in response to
notices provided by the Company pursuant to Section 280 (a)(i) and
(iii) of the DGCL; and claims that have not arisen, but that are
likely to arise or become known within five (5) years following May
27, 2016, the Company’s date of dissolution. The Petition
identifies the dollar amount of all such claims presented to the
extent known (although not all claimants attached a specific dollar
amount to their claims), as well as the amount of the
Company’s current cash and short-term investments, and
concludes that after taking into account estimated wind-up costs,
the claims asserted substantially exceed the Company’s net
assets available to satisfy claims. It should be noted that the
Company does not agree with the valuation of claims presented (and
in fact believes many claims are frivolous, without merit or
grossly exaggerated and inflated). As further set forth in the
Petition, the Company’s Directors and Officers Insurance
(“D&O Insurance”) which, among other things, has
been funding defense costs for the Company’s former Chief
Financial Officer and former Director of External Reporting, who
were indicted on various criminal counts relating to the
Company’s financial restatements in 2012, has been
substantially exhausted with less than $5 million of
Company’s original $45 million of coverage remaining. Further
claims against the remaining D&O Insurance have been made and
additional claims are possible. If these claims deplete the
remaining D&O Insurance coverage, there could be further claims
made directly against the Company.
The
Petition asks the Delaware Court to determine that (i) the Company
has complied with the procedures set in Section 280 of the DGCL;
(ii) certain claims set forth in the Petition are barred; (iii) the
Company’s current cash and short-term investments constitute
sufficient security to provide for estimated wind-down costs, and
to satisfy all claims outlined in Section 280 of the DGCL and
identified in the Petition; and (iv) at the end of the dissolution
period, if all claims are resolved, the Company shall be authorized
to disburse remaining assets, if any, to the Company’s
stockholders. The Company anticipates that the end of the
dissolution period will be August 2019, although if all claims are
resolved prior to that time, the Company intends to seek an early
end to the dissolution period. Conversely, if all claims are not
resolved prior to August 2019, the dissolution period may be
extended at the direction of the Delaware Court. At this time, the
Company does not anticipate any distribution to stockholders prior
to the end of the dissolution period, and in any event the Company
will not make any payments to claimants or stockholders without
approval of the Delaware Court.
In
summary:
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Pursuant to the
Delaware dissolution process, the Company has notified potential
claimants of the Company’s dissolution which was effective
May 27, 2016, following a stockholder vote and subsequent action by
the Company’s board of directors.
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The stated value of
claims received are substantially in excess of the Company’s
net assets available for the payment of claims or distribution to
stockholders.
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Through the
Company’s Petition and the subsequent proceedings, the
Company anticipates extinguishing meritless claims and reducing any
remaining claims that are overstated or inflated to their fair
value.
●
In accordance with
this process, meritorious claims, if any, will be paid along with
any remaining costs of winding up the Company. The Company will
then petition the Delaware Court for permission to distribute
remaining assets, if any, to the Company’s
stockholders.
●
The Company does
not anticipate any distribution to stockholders prior to the end of
the dissolution and liquidation process, currently expected to be
August 2019.
This
report on Form 8-K and the Petition referenced herein and attached
as Exhibit 99.1, which include certain actual and estimated
financial information, are not intended to supersede the
Company’s most recently filed audited financial statements as
of December 31, 2016 filed on Form 8-K with the Securities and
Exchange Commission on April 12, 2017, and should not be considered
to represent financial statements of the Company.
Item 9.01
Financial
Statements and Exhibits.
Exhibit
No.
Description
Verified Petition
for Dissolution filed in the Court of Chancery of the State of
Delaware on February 6, 2018 (without exhibits).
SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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SWISHER HYGIENE INC.
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Date:
February 12, 2018
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By:
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/s/
Richard L. Handley
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Richard
L. Handley
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Chairman,
President and Secretary
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