<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 16, 1996
REGISTRATION NO. 333-14975
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
SWISHER INTERNATIONAL GROUP INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 2121 13-3857632
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
------------------------
459 EAST 16TH STREET
JACKSONVILLE, FL 32206
(904) 353-4311
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------------
WILLIAM ZIEGLER, III
CHIEF EXECUTIVE OFFICER
SWISHER INTERNATIONAL GROUP INC.
459 EAST 16TH STREET
JACKSONVILLE, FL 32206
(904) 353-4311
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C>
DONALD E. MCNICOL, ESQ. ROHAN S. WEERASINGHE, ESQ.
SCHNADER HARRISON SEGAL & LEWIS SHEARMAN & STERLING
330 MADISON AVENUE 599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017 NEW YORK, NEW YORK 10022
(212) 973-8000 (212) 848-4000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
EXPLANATORY NOTE
This Amendment No. 5 is being filed solely for the purpose of amending Item
13 of Part II of the Registration Statement (Registration No. 333-14975) and the
filing of the opinion of Schnader Harrison Segal & Lewis as Exhibit 5.1. This
Amendment No. 5 does not contain a copy of the Prospectus or the financial
statement schedule included in the Registration Statement, which are unchanged
from Amendment No. 4, filed on December 13, 1996.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions,
are estimated (except for Securities and Exchange Commission registration and
National Association of Securities Dealers ("NASD") filing fees, which are
actual amounts) as follows:
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<S> <C>
Securities and Exchange Commission Registration Fee............. $ 42,424
NASD filing fee................................................. 14,500
New York Stock Exchange Inc., Listing Fee....................... 88,000
Blue Sky Qualification Fees and Expenses........................ 15,000
Printing and Engraving Expenses................................. 250,000
Legal Fees and Expenses......................................... 775,000
Accounting Fees and Expenses.................................... 200,000
Transfer Agent and Registrar Fees............................... 2,500
Miscellaneous................................................... 12,576
---------
Total....................................................... $1,400,000
---------
---------
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is empowered by Section 145 of the General Corporation Law of
the State of Delaware (the "DGCL"), subject to the procedures and limitations
therein, to indemnify any person against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with any threatened, pending or completed action,
suit or proceeding in which such person is made a party by reason of such person
being or having been a director, officer, employee or agent of the Registrant.
The statute provides that indemnification pursuant to its provisions is not
exclusive of other rights of indemnification to which a person may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors, or
otherwise. The Amended and Restated By-laws of the Registrant provide for
indemnification by the Registrant of its directors and officers to the fullest
extent permitted by the DGCL.
The foregoing statements are subject to the detailed provisions of the DGCL,
the Registrant's Amended and Restated Certificate of Incorporation and the
Registrant's Amended and Restated By-laws.
Article IX of the Registrant's Amended and Restated By-laws allow the
Registrant to maintain director and officer liability insurance on behalf of any
person who is or was a director or officer of the Registrant or such person who
serves or served as a director, officer, agent or employee, at another
corporation, partnership or other enterprise at the request of the Registrant.
Pursuant to Section 102(b)(7) of the DGCL, Article Fifth of the Amended and
Restated Certificate of Incorporation of the Registrant provides that no
director of the Registrant shall be personally liable to the Registrant or its
stockholders for monetary damages for any breach of his fiduciary duty as a
director; provided, however, that such clause shall not apply to any liability
of a director (1) for any breach of his duty of loyalty to the Registrant or its
stockholders, (2) for acts or omissions that are not in good faith or involve
intentional misconduct or a knowing violation of the law, (3) under Section 174
of the DGCL, or (4) for any transaction from which the director derived an
improper personal benefit.
II-1
<PAGE>
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
There have been no sales of unregistered securities by the Registrant within
the past three years.
ITEM 16. EXHIBITS AND SCHEDULES
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------------ ---------------------------------------------------------------------------------------------
<C> <S>
**1.1. Form of U.S. Purchase Agreement.
**1.2. Form of International Purchase Agreement.
**1.3. Form of U.S. Indemnity Agreement.
**1.4. Form of International Indemnity Agreement.
**3.1. Form of Amended and Restated Certificate of Incorporation of the Registrant.
**3.2. Form of Amended and Restated Bylaws of the Registrant.
**4.1. Specimen stock certificate.
5.1. Opinion of Schnader Harrison Segal & Lewis.
**10.1. Form of Registration Rights Agreement between Registrant and Hay Island.
**10.2. Form of Management Services Agreement between the Registrant and Hay Island.
**10.3. Employment Agreement dated October 23, 1996 between the Registrant and Timothy Mann.
**10.4. Employment Agreement dated October 23, 1996 between the Registrant and J. Thomas Ryan, III.
**10.5. Employment Agreement dated October 23, 1996 between the Registrant and Nicholas J. Cevera,
Jr.
**10.6. Employment Agreement dated October 23, 1996 between the Registrant and Robert A. Britton.
**10.7. Second Amended and Restated Credit Agreement, dated as of October 28, 1996, between the
Registrant, Swisher International and the Bank of Boston Connecticut, as Administrative
Agent, and the group of financial institution parties thereto.
**10.7.1. Form of First Amendment Agreement dated as of December , 1996 among the Registrant, Swisher
International and the Bank of Boston Connecticut, as Administrative Agent, and the group of
financial institution parties thereto.
**10.8. Management Incentive Plan.
**10.9. Form of 1996 Stock Option Plan.
**10.10. Supplemental Pension Program.
**10.11. Form of Tax Sharing Agreement.
**16.1. Letter regarding change in certifying accountant.
**21.1. List of Subsidiaries.
**23.1. Consent of Coopers & Lybrand L.L.P., independent accountants.
23.2. Consent of Schnader Harrison Segal & Lewis (included in Exhibit 5.1).
**24.1. Power of Attorney (contained on page II-5).
**27.1. Financial Data Schedule.
</TABLE>
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* To be provided by amendment.
** Previously filed.
II-2
<PAGE>
(b) Financial Statement Schedules:
Schedule VIII--Valuation and Qualifying Accounts.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective; and
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby further undertakes to provide to the
underwriter at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required by
the underwriter to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Darien, State of
Connecticut, on December 16, 1996.
SWISHER INTERNATIONAL GROUP INC.
By: /s/ WILLIAM T. ZIEGLER
-----------------------------------------
William T. Ziegler
CHIEF OPERATING OFFICER
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
Chairman of the Board,
WILLIAM ZIEGLER, III* Chief Executive Officer
- ------------------------------ and Director December 16, 1996
William Ziegler, III (principal executive
officer)
Chairman of the Executive
/s/ WILLIAM T. ZIEGLER Committee, Chief
- ------------------------------ Operating Officer and December 16, 1996
William T. Ziegler Director
Executive Vice President,
ROBERT A. BRITTON* Chief Financial Officer
- ------------------------------ and Director December 16, 1996
Robert A. Britton (principal financial and
accounting officer)
TIMOTHY MANN*
- ------------------------------ President and Director December 16, 1996
Timothy Mann
J. THOMAS RYAN, III* Executive Vice President-
- ------------------------------ Sales & Marketing and December 16, 1996
J. Thomas Ryan, III Director
NICHOLAS J. CEVERA, JR* Executive Vice
- ------------------------------ President-Operations and December 16, 1996
Nicholas J. Cevera, Jr Director
CYNTHIA Z. BRIGHTON*
- ------------------------------ Vice President-Financial December 16, 1996
Cynthia Z. Brighton Services and Director
C. KEITH HARTLEY*
- ------------------------------ Director December 16, 1996
C. Keith Hartley
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
ALFRED F. LA BANCA*
- ------------------------------ Director December 16, 1996
Alfred F. La Banca
<C> <S> <C>
DONALD E. MCNICOL*
- ------------------------------ Vice Chairman of the Board December 16, 1996
Donald E. McNicol and Director
JOHN R. TWEEDY*
- ------------------------------ Director December 16, 1996
John R. Tweedy
</TABLE>
*By: /s/ WILLIAM T. ZIEGLER
-------------------------
William T. Ziegler
ATTORNEY-IN-FACT
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- ----------------------------------------------------------------------------------
<C> <S> <C>
**1.1. Form of U.S. Purchase Agreement.
**1.2. Form of International Purchase Agreement.
**1.3. Form of U.S. Indemnity Agreement.
**1.4. Form of International Indemnity Agreement.
**3.1. Form of Amended and Restated Certificate of Incorporation of the Registrant.
**3.2. Form of Amended and Restated Bylaws of the Registrant.
**4.1. Specimen certificate.
5.1. Opinion of Schnader Harrison Segal & Lewis.
**10.1. Form of Registration Rights Agreement between the Registrant and Hay Island.
**10.2. Form of Management Services Agreement between the Registrant and Hay Island.
**10.3. Employment Agreement dated October 23, 1996 between the Registrant and Timothy
Mann.
**10.4. Employment Agreement dated October 23, 1996 between the Registrant and J. Thomas
Ryan, III.
**10.5. Employment Agreement dated October 23, 1996 between the Registrant and Nicholas J.
Cevera, Jr.
**10.6. Employment Agreement dated October 23, 1996 between the Registrant and Robert A.
Britton.
**10.7. Second Amended and Restated Credit Agreement, dated as of October 28, 1996,
between the Registrant, Swisher International and the Bank of Boston Connecticut,
as Administrative Agent, and the group of financial institution parties thereto.
**10.7.1. Form of First Amendment Agreement, dated as of December , 1996 among the
Registrant, Swisher International and the Bank of Boston Connecticut, as
Administrative Agent, and the group of financial institution parties thereto.
**10.8. Management Incentive Plan.
**10.9. Form of 1996 Stock Option Plan.
**10.10. Supplemental Pension Program.
**10.11. Form of Tax Sharing Agreement.
**16.1. Letter regarding change in certifying accountant.
**21.1. List of Subsidiaries.
**23.1. Consent of Coopers & Lybrand L.L.P., independent accountants.
23.2. Consent of Schnader Harrison Segal & Lewis (included in Exhibit 5.1).
**24.1. Power of Attorney (contained on page II-5).
**27.1. Financial Data Schedule.
</TABLE>
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* To be provided by amendment.
** Previously filed.
<PAGE>
EXHIBIT 5.1
December 16, 1996
Swisher International Group Inc.
459 East 16th Street
Jacksonville, Florida 32206-3063
Re: Swisher International Group Inc.
Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as special counsel to Swisher International Group Inc., a
Delaware corporation (the "Company"), in connection with the filing by the
Company with the Securities and Exchange Commission (the "Commission") of a
Registration Statement on Form S-1 (No. 333-14975), as amended, and the
Prospectuses contained in the Registration Statement (the "Prospectuses")
covering the registration under the Securities Act of 1933, as amended (the
"Securities Act") of the initial public offering by the Company of up to
6,000,000 shares (plus up to an additional 900,000 shares to cover
over-allotments) of the Company's Class A Common Stock, par value $0.01 per
share (the "Class A Common Stock"). Such shares of Class A Common Stock,
together with any additional shares of Class A Common Stock which are registered
in a registration statement (a "Rule 462(b) Registration Statement") filed
pursuant to Rule 462(b) under the Securities Act, are collectively referred to
herein as the "Shares."
This opinion is being furnished in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement as filed with the Commission on October 29, 1996 under the Securities
Act; (ii) Amendment No. 1 to the Registration Statement as filed with the
Commission on November 14, 1996 under the Securities Act; (iii) Amendment No. 2
to the Registration Statement as filed with the Commission on November 18, 1996
under the Securities Act; (iv) Amendment No. 3 to the Registration Statement as
filed with the Commission on December 2, 1996 under the Securities Act; (v)
Amendment No. 4 to the Registration Statement as filed with the Commission on
December 13, 1996 under the Securities Act; (vi) Amendment No. 5 to the
Registration Statement as filed with the Commission on December 16, 1996 (such
Registration Statement, as amended, being hereinafter referred to as the
"Registration Statement"); (vii) the form of U.S. Purchase Agreement (the "U.S.
Purchase
<PAGE>
Swisher International Group Inc.
December 16, 1996
Page 2
Agreement") proposed to be entered into between the Company, as issuer, and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon Brothers Inc and
Forum Capital Markets L.P., as underwriters (the "U.S. Underwriters"), filed as
an exhibit to the Registration Statement; (viii) the form of U.S. Indemnity
Agreement (the "U.S. Indemnity Agreement") proposed to be entered into between
the Company and the U.S. Underwriters, filed as an exhibit to the Registration
Statement; (ix) the form of International Purchase Agreement (the "International
Purchase Agreement" and, together with the U.S. Underwriting Agreement, the
"Purchase Agreements") proposed to be entered into between the Company, as
issuer, and Merrill Lynch International, Salomon Brothers International Limited
and Forum Capital Markets L.P., as underwriters (the "International
Underwriters" and, together with the U.S. Underwriters, the "Underwriters"),
filed as an exhibit to the Registration Statement; (x) the form of International
Indemnity Agreement (the "International Indemnity Agreement") proposed to be
entered into between the Company and the International Underwriters, filed as an
exhibit to the Registration Statement; (xi) a specimen certificate representing
the Class A Common Stock; (xii) the Certificate of Incorporation of the Company,
as presently in effect and the form of Amended and Restated Certificate of
Incorporation of the Company to become effective upon consummation of the
offerings contemplated by the Registration Statement; (xiii) the Bylaws of the
Company, as presently in effect and the form of Amended and Restated Bylaws to
become effective upon consummation of the offerings contemplated by the
Registration Statement; (xiv) certain resolutions of the sole stockholder of the
Company and the Board of Directors of the Company relating to the adoption of
the Amended and Restated Certificate of Incorporation of the Company; and (xv)
certain resolutions of the Board of Directors of the Company and drafts of
certain resolutions (the "Draft Resolutions") of the Pricing Committee of the
Board of Directors of the Company (the "Pricing Committee") relating to the
issuance and sale of the Shares and related matters. We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of
such records of the Company and such agreements, certificates of public
officials, certificates of officers or other representatives of the Company and
others, and such other documents, certificates and records as we have deemed
necessary or appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents presented to us as originals, the conformity to
the originals of all documents presented to us as copies, and the authenticity
of the originals of such documents. In rendering our opinion, we have relied as
to factual matters upon certificates of public officials and certificates and
representations of officers of the Company.
<PAGE>
Swisher International Group Inc.
December 16, 1996
Page 3
Members of our firm are admitted to the bar in the State of New York, and we
do not express any opinion as to the laws of any other jurisdiction other than
Delaware General Corporation Law.
Based upon the foregoing and having regard for such legal considerations as
we deem relevant, we are of the opinion that, when the Amended and Restated
Certificate of Incorporation of the Company in the form examined by us has been
filed with the Secretary of the State of Delaware and has become effective, the
Shares will have been duly authorized by the Company and the Shares to be issued
and sold by the Company will be, when issued and paid for in the manner and at
the price set forth in the Prospectuses, validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. We also consent to the reference to
our firm under the caption "Legal Matters" in the Registration Statement. We
further consent to the incorporation of this opinion by reference as an exhibit
to any Rule 462(b) Registration Statement and to the reference to our firm under
the caption "Legal Matters" in the prospectus included or incorporated by
reference in any such Rule 462(b) Registration Statement. In giving these
consents, we do not hereby admit that we are included in the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ SCHNADER HARRISON SEGAL & LEWIS
Schnader Harrison Segal & Lewis
