Swisher Hygiene (SWSH) Delays 10-Q Filing Due to Internal Review

May 17, 2012 6:48 AM EDT Send to a Friend
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Swisher Hygiene Inc. (Nasdaq: SWSH) reports that the filing of its Form 10-Q for the quarter ended March 31, 2012 (the "Form 10-Q") has been delayed beyond the May 15, 2012 due date as a result of the previously disclosed internal review being conducted by Swisher Hygiene's Audit Committee.

Swisher Hygiene notes the following information relating to the delayed filing:
  • Internal Review - On May 17, 2012, Swisher Hygiene announced that the Audit Committee has substantially completed the investigative portion of its internal review and is working with its outside professionals, Swisher Hygiene and Swisher Hygiene's independent auditor to finalize a determination of adjustments to be made for each of the quarterly periods ended March 31, 2011, June 30, 2011, and September 30, 2011. While the amount of any such adjustments cannot be estimated with reasonable certainty at this time, to date, the Audit Committee has preliminarily identified an aggregate of approximately $4.6 million in increases to net loss before income taxes for the affected periods. However, until the adjustments have been fully reviewed and finalized, Swisher Hygiene cannot provide further assurance regarding the complete impact of any adjustments on its results of operations for the affected periods, and Swisher Hygiene cannot provide assurance that the adjustments identified to date are representative of the adjustments that will be required when the adjustments are finalized. Additionally, Swisher Hygiene cannot provide assurance that the review will not identify further adjustments that may be required, including as a result of the independent auditor's review and audit or Swisher Hygiene's further analysis. Swisher Hygiene is working to file the Form 10-K, restated Form 10-Qs for the affected periods and the Form 10-Q for the quarter ended March 31, 2012 as promptly as possible; however, Swisher Hygiene can provide no assurance as to when it will complete these filings.
In connection with the internal review, on May 14, 2012, Swisher Hygiene's Board of Directors (the "Board"), based on the recommendation of the Audit Committee, determined that Michael Kipp, Swisher Hygiene's Senior Vice President and Chief Financial Officer, be separated from Swisher Hygiene, effective immediately. Also, the Board, based on the recommendation of the Audit Committee, determined that two additional senior accounting personnel be separated from Swisher Hygiene, effective immediately. In making these employment determinations, the Board did not identify any conduct by these employees intended for or resulting in any personal benefit.

Swisher Hygiene has commenced a search process for a new CFO and other accounting staff. During this time, Steven R. Berrard, Swisher Hygiene's President and Chief Executive Officer, will also serve as interim CFO.
  • NASDAQ – On May 15, 2012, Swisher Hygiene received a letter from NASDAQ indicating that it is not in compliance with the filing requirements for continued listing under NASDAQ Listing Rule 5250(c)(1). As previously noted on April 11, 2012, Swisher Hygiene received a non-compliance letter from NASDAQ in conjunction with Swisher Hygiene's inability to timely file its Form 10-K. Pursuant to the April 11, 2012 and May 15, 2012 letters from NASDAQ, Swisher Hygiene is required to submit a plan to regain compliance with NASDAQ's filing requirements for continued listing by June 11, 2012. Upon acceptance of Swisher Hygiene's compliance plan, NASDAQ is permitted to grant an extension of up to 180 days from the Form 10-K's initial due date for Swisher Hygiene to regain compliance with NASDAQ. Swisher Hygiene intends to submit a compliance plan by June 11, 2012. During the process of regaining compliance with NASDAQ, Swisher Hygiene expects that its common stock will continue trading on NASDAQ under the symbol "SWSH."

  • Canadian Securities Law Compliance/Toronto Stock Exchange – Swisher Hygiene has been noted in default of the continuous disclosure requirements by the securities regulators in several provinces of Canada for certain failures stemming from the non-compliance described above, including the failure to timely file its annual financial statements for the year ended December 31, 2011 and related information, and for publicly acknowledging that certain of its previously filed financial statements may no longer be relied upon. In connection with these defaults, Swisher Hygiene has applied to the Ontario Securities Commission (the "OSC"), as its principal Canadian securities regulator, for a temporary order prohibiting its directors and officers from trading in the securities of Swisher Hygiene for as long as these defaults remain outstanding. If a management cease trade order is granted, it is not expected to affect the ability of persons who are not directors or officers of Swisher Hygiene to trade in the securities of Swisher Hygiene. In the absence of a management cease trade order, and in the event that the continuous disclosure defaults have not been remedied, the Canadian securities regulators may issue a general cease trade order against Swisher Hygiene. The shares of Swisher Hygiene's common stock trade on the TSX under the symbol "SWI."

  • Wells Fargo Credit Facility – Swisher Hygiene has entered into a Third Amendment to its senior credit facility with Wells Fargo Bank, National Association as administrative agent. The Third Amendment provides an extension for the delivery of Swisher Hygiene's financial statements for the fiscal year ended December 31, 2011 and for the quarterly period ended March 31, 2012 until the earlier of the date on which the Company delivers such financial statements to the Securities and Exchange Commission or May 31, 2012. At the same time, the Third Amendment waives any Default or Event of Default that may exist as a result of Swisher Hygiene not filing its Form 10-K for the year ended December 31, 2011 by April 16, 2012 and its Quarterly Report on Form 10-Q for the period ended March 31, 2012 by May 21, 2012 so long as Swisher Hygiene files the Form 10-K and Form 10-Q by May 31, 2012. Swisher Hygiene cannot provide assurance as to when it will complete the filings.


While Swisher Hygiene has no present intention to borrow any additional funds under the credit facility, until (1) Swisher Hygiene files the Form 10-K and Form 10-Q, (2) represents to Wells Fargo that its financial statements as filed may be relied upon, and (3) Wells Fargo consents to such reliance, Swisher Hygiene may not borrow additional funds under the credit facility with Wells Fargo.


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