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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SECOND AMENDMENT TO
FORM T-3
FOR APPLICATIONS FOR QUALIFICATIONS OF INDENTURES UNDER THE
TRUST INDENTURE ACT OF 1939
BISSELL INC.
2345 WALKER, N.W.
GRAND RAPIDS, MICHIGAN 49544
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
Title of Class Amount
-------------- ------
Subordinated Notes due June 30, 2008 Approximately $18,000,000
Approximate date of proposed public offering: Not Applicable
Name and address of agent for service:
Mark J. Bissell
President and Chief Executive Officer
BISSELL Inc.
2345 Walker, N.W.
Grand Rapids, Michigan 49544
With copies to:
David M. Hecht, Esq.
Hecht & Lentz
333 Bridge Street, N.W.
Suite 330
Grand Rapids, Michigan 49504
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1. General Information.
BISSELL Inc. ("BISSELL" or the Company") is a corporation incorporated
under the laws of the State of Michigan.
2. Securities Act Exemption Applicable.
In connection with the Company's offer to redeem shares of its issued
and outstanding common stock, the Company will, in addition to making cash
payments, exchange its Subordinated Notes (the "Notes") solely for its common
stock held by its stockholders which accept the Company's offer. The Company
will not pay any commission or other remuneration, directly or indirectly, to
any person or entity for soliciting any stockholder. Based on the foregoing, the
Notes are exempt under Section 3(a)(9) of the Securities Act of 1933, as
amended.
Neither the Company, nor any underwriter will sell the Notes or other
securities of the same class of the Company at or about the same time as the
transaction for which the exemption is claimed. The Company has incurred certain
legal and accounting and printing fees in connection with the transaction. No
holder of common stock will make any cash payment in connection with the
exchange of the Company's notes in partial redemption of its common stock.
3. Affiliates.
The following table sets forth, as of January 1, 1998, those persons
who may be deemed "affiliates" of the Company and the respective voting
securities owned by each or such other bases of control:
<TABLE>
<CAPTION>
Voting Securities
Name or other Bases of Control
---- -------------------------
<S> <C>
See list of Directors and Executive Officers in Item Management control
4, below
Michigan National Bank, Trustee under Will of M.R. As Trustee, MNB controls 249,205
Bissell and under various other agreements shares of common stock of the Company
List of Bissell, Inc. subsidiaries: The Company holds, directly or
indirectly, the following interest
in each entity:
Barcolene Incorporated 100.0%
BeAble! Health Centers, Inc. 100.0%
Penn Champ, Inc. 100.0%
Bissell Graphis Corporation 100.0%
Imperial Graphics, Inc. 100.0%
Atlas Tag & Label, Inc. 100.0%
ATL-East Tag & Label, Inc. 80%
Sierra Tag & Label, Inc. 100.0%
Bissell Healthcare Corporation 100.0%
Am Fab, Inc. 100.0%
Midland Manufacturing Company, Inc. 100.0%
</TABLE>
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<TABLE>
<S> <C>
J.A. Preston Corporation 100.0%
Tumble Forms, Inc. 100.0%
Sammons Preston Canada Inc. 100.0%
Bissell International Corporation 100.0%
Bissell A.G. 97.0%
Bissell Austrailia Pty. Ltd. 100.0%
Bissell Ltd. 99.5%
BISSELL Reynosa, A.C. of V.C. 100.0%
Bissell Mexico, S.A. de C.V. 99.6%
Bissell S.A. 100.0%
Bissell Mexico, Inc. 100.0%
Bissell Mexico, S. de R.I. de C.V. 100.0%
Bissell FSC Inc. 100.0%
</TABLE>
4. Directors and Executive Officers.
Directors and Executive Officers. The following table sets forth
certain information concerning the directors and executive officers of the
Company:
<TABLE>
<CAPTION>
Name Positions with the Company
---- --------------------------
<S> <C>
John M. Bissell Director and Chairman of the Board
Mark J. Bissell Director, President and Chief Executive
Officer
Matthew R. Bissell Director and Senior Vice President
Howard A. Schwartz Senior Vice President
Daniel T. Caldon Senior Vice President-Administration
Chief Financial Officer, Treasurer and
Assistant Secretary
Timothy E. Bosscher Vice President - Controller
Stephen R. Kretschman Secretary
Harry J. Bloem Director
Christy A. Cameron Director
Sabra M. Clark Director
Craig J. Duchossois Director
H. Kirke Latrop, III Director
Peter M. Sears Director
Jack P. Smith Director
</TABLE>
The mailing address of all directors and executive officers is 2345 Walker,
N.W., Grand Rapids, Michigan 49544.
5. Principal Owners of Voting Securities.
The Company only has common stock issued and outstanding. The following
table sets forth certain information, as of January 15, 1998, regarding each
person known by the Company to own of record, whether beneficially or otherwise,
ten percent or more of each class of the Company's outstanding voting securities
and the number of such securities and the total voting power with respect
thereof.
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<TABLE>
<CAPTION>
Number
Name and Mailing Address of Shares Percent
------------------------ --------- -------
<S> <C> <C>
Michigan National Bank, Trustee 249,205 15.0%
77 Monroe Center
PO Box 1707
Grand Rapids, MI 49501-1707
BISSELL Inc. Employee Stock Ownership Plan 477,404 28.7%
2345 Walker, N.W.
Grand Rapids, Michigan 49544
</TABLE>
The Company believes that upon completion of the redemption offer and
consequent exchange of Notes in redemption of common stock each of the persons
listed above in this Item 5 and John M. Bissell may own of record, whether
beneficially or otherwise, ten percent or more of the Company's outstanding
common stock. However, the number of shares so owned and the total voting power
with respect thereof cannot be determined until the completion of the redemption
offer.
6. Underwriters.
No person within the three-year period prior to the date hereof has
acted as an "underwriter" (as such term is defined under the Trust Indenture Act
of 1939, as amended) of any of the Company's currently issued and outstanding
securities. No person will act as underwriter of the Notes.
7. Capitalization.
a. The following table sets forth certain information regarding each
authorized class of securities of the Company as of January 15, 1998.
<TABLE>
<CAPTION>
Amount Amount
Title of Class Authorized Outstanding
-------------- ---------- -----------
<S> <C> <C>
Common Stock 3,000,000 1,609,103
Preferred Stock 40,000 0
9.86% Senior Notes $10,000,000 $1,429,000
</TABLE>
b. Each share of Common Stock is entitled to one vote. Preferred Stock
is entitled to the number of votes determined by resolution of the Board of
Directors upon issuance. To date, the Board of Directors has not issued any
Preferred Stock. The 9.86% Senior Notes have no conversion or voting rights.
8. Analysis of Indenture Provisions
The terms of the indenture securities include those stated in the
indenture, to be entered into between the Company and First of America Bank,
N.A., as Trustee, with respect to the Subordinated Notes (the "Indenture") and
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (the "TIA"). The following analysis of certain provisions of the
Indenture makes use of
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certain capitalized terms defined in the Indenture and not herein and such
terms shall have the meanings given to them in the Indenture and shall be
incorporated by reference herein. The following analysis does not purport to be
a complete description of the Indenture provisions discussed and is qualified in
its entirety by reference to the Indenture, which provisions are incorporated by
reference as a part of such analysis. (Section references are to the relevant
provisions of the Indenture).
The Subordinated Notes (the "Notes") may be presented for registration
of transfer or exchange at the offices of the Registrar. Payments of principal
and interest on the Notes will be made by check mailed to the registered address
of the Person entitled thereto as it appears in the register of the Registrar as
of the applicable record date for determining the persons entitled to receive,
as applicable, quarterly payments of interest and annual payments of principal
under the Notes.
The Notes will be issued only in registered form, without coupons, in
denominations which are an even multiple as determined by the Company prior to
the making of the redemption offer. (Section 2.01.) No service charge will be
made for any registration of transfer or exchange of Notes, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. (Section 2.06.)
A Note will not be valid until authenticated by the manual signature of
the Trustee. The signature will be conclusive evidence that the Note has been
authenticated under the Indenture. The Trustee will authenticate the Notes for
original issue in the aggregate principal amount of the aggregate redemption
offer upon a written order of the Company signed by an Officer. The aggregate
principal amount of Notes outstanding at any time may not exceed the amount of
the aggregate redemption offer, except as otherwise provided in the Indenture.
(Section 2.02.)
Prepayment
The Notes may be prepaid at the Company's option, in whole or in part,
upon not less than 30 nor more than 60 days' notice mailed to each Holder of
Notes at his or her address appearing in the register of the Registrar. Any
prepayment of Notes will be done on a pro rata basis. The notice will state the
Interest Payment Date on which the prepayment shall be made; the amount of the
prepayment; if the Notes are being prepaid in part, the portion of the principal
amount of the Notes being prepaid and to be outstanding thereafter and that,
after the Interest Payment Date on which the prepayment is being made and upon
surrender of the Notes, the Notes shall be returned to the Holders after the
Company has placed thereon a notation of the amount prepaid and the date of such
prepayment; the name and address of the Paying Agent; that the Notes must be
surrendered to the Paying Agent to collect the amount being prepaid; and that,
unless the Company defaults in making such prepayment, interest on the amount
being prepaid ceases to accrue on and after the Interest Payment Date on which
the prepayment is being made. If the Company elects to prepay the Notes in whole
or in part, it must furnish to the Trustee, at least 45 days but not more than
60 days before the Interest Payment Date on which such prepayment will be made,
an Officer's Certificate setting forth (i) the Interest Payment Date on which
such prepayment is to be made and (ii) the amount of principal to be prepaid.
(Article 3.)
Subordination
The payment of the principal of and interest on the Notes will, to the
extent set forth in the Indenture, be subordinated in right of payment to the
prior payment in full of all Senior Debt. "Senior Debt" means all of the
Company's indebtedness for borrowed money from time to time outstanding (other
than indebtedness under the Notes) unless the instrument under which such
indebtedness is incurred expressly
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provides that it is on a parity with or subordinated in right of payment to the
Notes. Senior Debt does not include tax liabilities owed or owing by the Company
or trade payables of the Company. Upon any liquidation, dissolution,
reorganization, assignment for the benefit of creditors, marshalling of assets
or any bankruptcy, insolvency or similar proceedings of the Company, (i) the
holders of all Obligations due in respect of Senior Debt will first be entitled
to receive payment in full of all amounts due or to become due thereon before
the Holders of the Notes will be entitled to receive any payment in respect of
the principal of or interest on the Notes and (ii) until all Obligations with
respect to Senior Debt are paid in full in cash, any distribution to which
Holders of Notes would be entitled but for clause (i), above, shall be made to
holders of Senior Debt, as their interests may appear. Until all principal and
other Obligations with respect to the Senior Debt have been paid in full in
cash, the Company shall not make any payments of principal, interest or other
Obligation in respect of the Notes and may not acquire from the Trustee or any
Holder any Notes for cash or property if there shall have occurred and be
continuing a default in any payment with respect to Senior Debt, or an event of
default with respect to any Senior Debt permitting the holders thereof to
accelerate the maturity thereof or, if any judicial proceeding shall be pending
with respect to any such default. The Indenture does not prohibit or limit the
incurrence of Senior Debt by the Company.
Events of Default
The following will be Events of Default under the Indenture: (a)
failure to pay principal on any Notes when due, continuing for five days,
whether or not such payment is prohibited by the subordination provisions of the
Indenture; (b) failure to pay any interest on any Notes when due, continuing for
30 days, whether or not such payment is prohibited by the subordination
provisions of the Indenture; (c) failure by the Company for 30 days after notice
from the Trustee or the Holders of at least 25% in aggregate principal amount of
the then outstanding Notes to comply with the successor provisions of the
Indenture; (d) failure by the Company for 60 days after proper notice from the
Trustee or the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes to comply with any of its other agreements in the Indenture or
the Notes; (e) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company (or the payment of which is
guaranteed by the Company) whether such Indebtedness or guarantee now exists, or
is created after the date hereof, which default results in the acceleration of
such Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness the maturity of which has been so accelerated, aggregates $5.0
million or more; (f) failure by the Company to pay final judgments aggregating
in excess of $5.0 million, which judgments are not paid, discharged or stayed
for a period of 60 days; and (g) certain events in bankruptcy, insolvency or
reorganization of the Company. (Section 6.01.) Subject to the provisions of the
Indenture relating to the duties of the Trustee in case an Event of Default has
occurred and is continuing, the Trustee is under no obligation to exercise any
of its rights or powers under the Indenture at the request or direction of any
of the Holders, unless such Holders shall have offered to the Trustee reasonable
indemnity. (Section 7.02.) Subject to such provisions for the indemnification of
the Trustee, the Holders of a majority in aggregate principal amount of the
outstanding Notes will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee. (Section 6.05.)
If an Event of Default has occurred and is continuing, either the
Trustee or the Holders of at least 25% in aggregate principal amount of the
outstanding Notes may accelerate the maturity of all Notes; provided, however,
that after such acceleration, but before a judgment or decree based on
acceleration, the Holders of a majority in aggregate principal amount of
outstanding Notes may, under certain circumstances, rescind and annul such
acceleration if all Events of Default, other than the non-payment of accelerated
principal, have been cured or waived as provided in the Indenture. (Section 6.02
and 6.04.)
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No Holder of any Notes will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default and unless also the Holders of at least 25% in aggregate principal
amount of the outstanding Notes shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding as trustee,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the outstanding Notes a direction inconsistent
with such request and shall have failed to institute such proceeding within 60
days. (Section 6.06.) However, such limitations do not apply to a suit
instituted by a Holder of a Note for the enforcement of payment of the principal
of, or interest on, such Note on or after the respective due dates expressed in
such Notes. (Section 6.07.)
The Company will be required to furnish to the Trustee annually a
statement as to the performance by the Company of certain of its obligations
under the Indenture and as to any default in such performance. (Section 4.03.)
Modification and Waiver
Modifications and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the outstanding Notes; provided, however, that no
such modification or amendment may, without the consent of the Holder of each
outstanding Notes affected thereby, (a) reduce the principal amount of, or
interest on, any Notes, (b) reduce the principal of or change the fixed maturity
of any installment of principal on any Notes, (c) reduce the interest rate of or
change the time for payment on any Note, (d) waive a Default or Event of Default
in the payment of principal of or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment default that resulted
from such acceleration), (e) make any Note payable in money other than that
stated in the Notes, (f) make any change in the provisions of the Indenture
relating to waivers of past Defaults or the rights of Holders of Notes to
receive payments of principal of or interest on the Notes, (g) waive any
prepayment with respect to which notice has been given to the Holders under
Section 3.03 of the Indenture, or (h) make any change in Section 6.04 or 6.07 of
the Indenture or in the amendment and waiver provisions of Section 8.02 of the
Indenture.
The Holders of a majority in aggregate principal amount of the
outstanding Notes may waive compliance by the Company with certain restrictive
provisions of the Indenture. (Section 8.02.) The Holders of a majority in
aggregate principal amount of the outstanding Notes may waive any past default
under the Indenture, except a default in the payment of principal or interest or
the performance of any covenant which may be waived only with the consent of all
Holders of the Notes. (Section 6.04)
Consolidation, Merger and Sale of Assets
The Company may, without the consent of any Holders of Notes,
consolidate or merge with or into, or transfer or lease all or substantially all
of its assets to, any Person, and any other Person may consolidate or merge with
or into, or transfer or lease all or substantially all of its assets to, the
Company, provided that (a) the Company is the surviving entity or the Person (if
other than the Company) formed by such consolidation or into which the Company
is merged or which acquires or leases all or substantially all of the assets of
the Company is organized and existing under the laws of any United States
jurisdiction and assumes the Company's obligations on the Notes and under the
Indenture, (b) after giving effect to such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an
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Event of Default, shall have happened and be continuing, and (c) certain other
conditions are met. (Article 5.)
Restrictions on Transfer
The Notes are not transferable except pursuant to an effective
registration statement under the Securities Act of 1933, as amended, or in a
transaction exempt from the registration requirements of the Securities Act, and
in accordance with all applicable securities laws of the states of the United
States and any foreign jurisdiction. See "The Subordinated Notes; General" for
requirements to complete a transfer, including registration of transferred Notes
with the Company and payment of applicable expenses.
Satisfaction and Discharge of the Indenture.
The Indenture will be discharged and will cease to be of further effect
as to all outstanding Notes when:
(1) all Notes theretofore authenticated and delivered (except lost,
stolen or destroyed Notes which have been replaced or paid and Notes for whose
payment money has theretofore been deposited in trust and thereafter repaid to
the Company) have been delivered to the Trustee for cancellation; or
(2) (i) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable by reason of the making of a notice of
prepayment or otherwise and the Company has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation of principal and accrued
interest to the date of maturity or prepayment and (ii) the Company has paid all
sums required to be paid by it under this Indenture.
The Company will deliver an Officers' Certificate to the Trustee
stating that all conditions precedent to satisfaction and discharge have been
complied with. (Section 10.2).
Evidence of Compliance.
Upon any request or application by the Company to the Trustee to take
any action under the Indenture, the Company may be required to furnish to the
Trustee: (a) an Officer's Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in the Indenture
relating to the proposed action have been complied with; and (b) an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in the Indenture is required to include: (1) a
statement that the person making such certificate or opinion has read such
covenant or condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based; (3) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of each such person, such condition or covenant has been complied
with; provided, however, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials. (Section 11.5)
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9. Other Obligors.
The Company is the only obligor under the Indenture governing the
Subordinated Notes.
Contents of Application for Qualification.
This Application for qualification comprises:
A. Pages number 1 to 10, consecutively.
B. The statement of eligibility and qualification of the trustee
under the indenture to be qualified; and
C. The following exhibits in addition to those filed as a part of
the statement of eligibility and qualification of the trustee.
Exhibit T3A Articles of Incorporation of the Company, dated
April 18,1989. (Previously filed).
Exhibit T3B By-laws of the Company, dated April 8,1974.
(Previously filed).
Exhibit T3C Indenture to be entered into between the Company,
as Issuer, and First of America Corporation, as
Trustee, with respect to the Subordinated Notes due
June 30, 2008. (Previously filed).
Exhibit T3D Not Applicable.
Exhibit T3E Revised draft of the Redemption Offer Memorandum
of the Company to be distributed to all Stockholders.
Exhibit T3F Cross reference sheet showing the location in the
indenture of the provisions inserted therein pursuant
to Section 310 through 318(a), inclusive of the Trust
Indenture Act of 1939. (Previously filed).
REMAINING PORTION OF PAGE INTENTIONALLY LEFT BLANK
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
BISSELL Inc., a corporation qualified and existing under the laws of Michigan
(the "applicant'), has duly caused this application to be signed on its behalf
by the undersigned, thereunto duly authorized, and its seal to be hereunto fixed
and attested, all in the City of Grand Rapids, and State of Michigan, on the
20th day of February, 1998.
BISSELL INC.
By: /s/ Mark J. Bissell
-------------------------------------
Mark J. Bissell
President and Chief Executive Officer
Attest: /s/ Daniel T. Caldon
----------------------------------
Name: Daniel T. Caldon
Title: Senior Vice President-Administration
END OF DOCUMENT
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
- ----------- -----------
Exhibit 99.1 Revised draft of the Redemption Offer Memorandum
of the Company to be distributed to all
Stockholders (previously filed).
