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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 5)
MARQUEST MEDICAL PRODUCTS, INC.
(Name of Issuer)
Common Stock, no par value per share
(Title of Class of Securities)
571431105
(CUSIP Number)
Robert P. Scherer, Jr., Scherer Healthcare, Inc.
2859 Paces Ferry Road, Suite 300
Atlanta, Georgia 30339
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications
March 3, 1997
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box. / /
Check the following box if a fee is being paid with this statement / /.
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class. (See Rule 13d-7.)
(Continued on following pages)
Page 1 of 10 Pages
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Page 2 of 10 Pages
1. Names of Reporting Persons, S.S. or I.R.S. Identification Nos. of Above
Persons
Scherer Healthcare, Inc.
2. Check the Appropriate Box if a Member (a) /x/
of a Group (b) / /
3. SEC Use Only
4. Source of Funds OO
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) / /
6. Citizenship or Place of Organization
Delaware
Number of Shares (7) Sole Voting Power: 0 shares.
Beneficially Owned
by Each Reporting
Person with
(8) Shared Voting Power
13,791,192 shares, including
(i) 7,211,192 shares owned directly by Scherer
Healthcare, Inc. and (ii) 6,580,000 shares that
Scherer Healthcare, Inc. may acquire upon
exercise of warrants.
(9) Sole Dispositive Power: Same as (7).
(10) Shared Dispositive Power: Same as (8).
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: 13,791,192
shares.
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(13) Percent of Class Represented by Amount in Row (11)
66.1%
(14) Type of Reporting Person
CO
1. Names of Reporting Persons, S.S. or I.R.S. Identification Nos. of Above
Persons
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Scherer Capital Company, LLC
2. Check the Appropriate Box if a Member (a) /x/
of a Group (b) / /
3. SEC Use Only
4. Source of Funds OO
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) / /
6. Citizenship or Place of Organization
Delaware
Number of Shares (7) Sole Voting Power: 0 shares.
Beneficially Owned
by Each Reporting
Person with
(8) Shared Voting Power: O shares.
(9) Sole Dispositive Power: Same as (7).
(10) Shared Dispositive Power: Same as (8).
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: 0 shares.
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares / /
(13) Percent of Class Represented by Amount in Row (11)
0.0%
(14) Type of Reporting Person OO
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Page 4 of 10 Pages
1. Names of Reporting Persons, S.S. or I.R.S. Identification Nos. of Above
Persons
Robert P. Scherer, Jr.
2. Check the Appropriate Box if a Member (a) /x/
of a Group (b) / /
3. SEC Use Only
4. Source of Funds OO
5. Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) / /
6. Citizenship or Place of Organization
Individual resident of the State of Georgia and a citizen of
the United States of America
Number of Shares (7) Sole Voting Power:
Beneficially Owned 4,204,713 shares including :
Each Reporting 1,546,392 owned directly and 2,142,857
Person with shares that may be acquired upon conversion of a
convertible note (the "Note"), and 515,464 shares held
pursuant to a Trust Agreement for the benefit of his
adult children. As of March 3, 1997, $700,000.00 was
loaned under the Note, which would be convertible into
1,000,000 shares of Issuer's common stock.
Robert P. Scherer, Jr. has an option to purchase from
Scherer Healthcare, Inc. warrants to purchase 100,000
shares of Issuer's Common Stock.
(8) Shared Voting Power:
13,791,192 shares owned or that may be acquired by
Scherer Healthcare, Inc.
(9) Sole Dispositive Power: Same as (7).
(10) Shared Dispositive Power: Same as (8).
(11) Aggregate Amount Beneficially Owned by Each
Reporting Person:
17,995,905 shares, consisting of the 13,791,192 shares
owned or that may be acquired by Scherer
Healthcare, Inc., and the 4,204,713 shares Robert P.
Scherer, Jr. owns or holds as Trustee.
Robert P. Scherer, Jr. has an option to purchase from
Scherer Healthcare, Inc. warrants to
purchase 100,000 shares of Issuer Common Stock.
(12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares /s/
(13) Percent of Class Represented by Amount in Row (11)
78.3%
(14) Type of Reporting Person
IN
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FIFTH AMENDMENT OF INFORMATION REQUIRED PURSUANT TO SECTION 13(d)(1)
OR 14 (d)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
SCHEDULE - 13D - - AMENDMENT NO. 5
The following amendment to the statement of information is being filed
by Scherer Healthcare, Inc., RPS Investments, Ltd., Scherer Capital Company,
LLC and Robert P. Scherer, Jr., pursuant to Regulation Section 240.13d-2 of
the Rules and Regulations of the Securities and Exchange Commission.
Item 1. Security And Issuer
This statement relates to the Common Stock, no par value per share, of
Marquest Medical Products, Inc., a Colorado corporation (the "Issuer"), whose
principal office is located at 11039 East Lansing Circle, Englewood, Colorado
80111.
Item 2. Identify And Background
This statement is being filed by:
(i) Scherer Healthcare, Inc. ("SHI"), a corporation incorporated under the
laws of the State of Delaware whose principal business and office address is
2859 Paces Ferry Road, Suite 300, Atlanta, Georgia 30339 and whose principal
business, through its subsidiaries and a majority owned partnership, is to
provide healthcare products and services;
(ii) Scherer Capital Company, LLC ("Scherer LLC"), a limited liability
corporation incorporated under the laws of the State of Delaware whose
principal business and office address is 2859 Paces Ferry Road, Suite 300,
Atlanta, Georgia 30339 and which is a privately held limited liability
company;
(iii) RPS Investments, Ltd., a limited partnership formed under the laws
of the State of Georgia which is a privately held family partnership,
("RIL"); and
(iv) Robert P. Scherer, Jr., an individual resident of the State of
Georgia and a citizen of the United States of America ("Mr. Scherer, Jr.").
Mr. Scherer, Jr., directly or through corporations and partnerships under his
control, has a controlling interest in Scherer LLC, RIL and SHI.
Neither Mr. Scherer, Jr., SHI, RIL nor Scherer LLC has, during the last
five years, (A) been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (B) been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a
result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
Set forth below is certain information regarding each executive officer
and director of SHI and Scherer LLC and the general partner of RIL. None of
the individuals listed below has, during the last five years, (A) been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (B) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoying
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to
such laws. Each person listed is a citizen of the United States.
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Name and Principal Occupation Business Address
Robert P. Scherer, Jr. 2859 Paces Ferry Road
CHAIRMAN OF THE BOARD AND Suite 300
CHIEF EXECUTIVE OFFICER OF SHI Atlanta, Gelrgoa 30339
AND THE ISSUER; PRESIDENT OF
SCHERER LLC; PRESIDENT,
TREASURER AND SOLE DIRECTOR OF
RPS INVESTMENTS, INC., GENERAL
PARTNER OF RIL
William J. Thompson 11039 East Lansing Circle
DIRECTOR AND PRESIDENT OF SHI Englewood, Colorado 80112
AND THE ISSUER
Amy M. Murphy 2859 Paces Ferry Road, Suite 300
VICE PRESIDENT OF CORPORATE Atlanta, Georgia 30339
OPERATIONS AND SECRETARY OF
SHI; EXECUTIVE VICE PRESIDENT
AND SECRETARY OF SCHERER LLC;
SECRETARY OF RPS INVESTMENTS,
INC., GENERAL PARTNER OF RIL
Kenneth H. Robertson 855 S. Federal Highway
DIRECTOR OF SHI AND THE ISSUER; Boca Raton, Florida 33429
CHAIRMAN OF CONFERENCE-CALL
USA, INC. AND VICE PRESIDENT OF
BUSINESS DEVELOPMENT OF DIAL
SERVICES, LTD.
Stephen Lukas, Sr. 50 N.W. 176th Street
DIRECTOR OF SHI AND THE ISSUER; Building 100
PRESIDENT, CHIEF EXECUTIVE Miami, Florida 33169
OFFICER AND DIRECTOR OF
GOLDCAPS, INC.
RPS Investments, Inc. 2859 Paces Ferry Road, Suite 300
GENERAL PARTNER OF RIL Atlanta, Georgia 30339
Item 3. Source And Amount Of Funds Or Other Consideration
On or about February 23, 1997, a Settlement Agreement (the "Settlement
Agreement") was entered into by and among Mr. Scherer, Jr., Robert P.
Scherer, III, Lesley Scherer Reeves, Stephen M. Scherer, Mark C. Scherer,
RIL, RPS Investments, Inc., Scherer Scientific, Ltd., The Scherer Company,
Scherer LLC, and Scherer Properties, LLC. The Settlement Agreement
memorialized the settlement, agreements and releases relating to the
settlement of two legal actions as further described in the Settlement
Agreement and Item 4 below. In particular, the
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Page 7 of 10 Pages
Settlement Agreement provided that certain shares of the Issuer would be
transferred, for no consideration, to and through various Scherer entities to
Mr. Scherer, Jr. and his four adult children, Robert P. Scherer, III, Lesley
Scherer Reeves, Stephen M. Scherer, and Mark C. Scherer (collectively,
hereinafter referred to as the "Scherer Children"). The transfers of the
Issuer's stock effected pursuant to the Settlement Agreement were as follows:
First, Scherer LLC transferred 2,061,856 shares of the
Issuer and the Note (as hereinafter defined) (including the
1,000,000 shares of the Issuer that Scherer LLC could
acquire upon conversion of the Note) to RIL. Thereafter
Scherer LLC was dissolved. RIL was the managing member of
Scherer LLC.
Second, RIL transferred 1,546,392 shares of the Issuer
and the Note (as hereinafter defined) (including the
1,000,000 shares of the Issuer that RIL could acquire upon
conversion of the Note) to Mr. Scherer, Jr.
Third, RIL transferred 515,464 shares of the Issuer to
the Scherer Children, jointly. Thereafter, RIL was
dissolved.
Fourth, the Scherer Children, jointly, transferred
515,464 shares of the Issuer to Mr. Scherer, Jr., as Trustee
under that certain Trust Agreement, dated February 23, 1997,
with respect to 515,464 shares of the Issuer and any shares
of Issuer later acquired by the Scherer Children ( the
"Marquest Stock Trust Agreement").
Pursuant to the terms of the Settlement Agreement, all documents
executed pursuant to the Settlement Agreement were held in escrow until 5:00
p.m. on March 3, 1997. Upon termination of the escrow, all of the above
parties became irrevocably bound to transfer the above shares of the Issuer.
Item 4. Purpose Of Transaction
The purpose of the transaction, as described above, was to settle the
following referenced lawsuits:
Civil Action No. E-35748 in the Superior Court of Fulton County, State
of Georgia, styled RPS Investments, Ltd., Scherer Scientific, Ltd., Scherer
Capital Company, L.L.C. and Scherer Properties, L.L.C., Plaintiffs v. Robert
D. Tucker, James E. Brands, Action Travel, Inc., BodyCare, Inc., Brands &
Co., Exchange Management Co., Inc., Ford Trading Co., LLC. Sweetwater Farms,
Inc., Tavistock, U.S. Environmental Compliance Corp., and John Does 1-25,
Defendants v. Robert P. Scherer, Jr., Scherer Laboratories, Inc. and John
Does 1-10, Additional Defendants in Counterclaim, and Civil Action No.
E-52899 in the Superior Court of Fulton County, State of Georgia, styled J.
Donald Gaines, Plaintiff, v. RPS Investments, Ltd., Scherer Scientific, Ltd.,
Scherer Capital Company, LLC, and Scherer Properties, LLC, Robert P. Scherer,
Jr., Robert P. Scherer, III; Steven M. Reeves; Lesley Scherer Reeves; and
Mark M. Scherer, Defendants.
Mr. Scherer, Jr., as a majority shareholder of SHI, has the present
intent to grant to SHI's Board of Directors the authority to vote the shares
of common stock of the Issuer owned by SHI
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Page 8 of 10 Pages
to approve (i) the Agreement and Plan of Merger dated as of March 14, 1997
(the "Merger Agreement"), by and among Vital Signs, Inc. ("VSI"), VSI
Acquisition Corporation, a wholly owned subsidiary of VSI ("Newco"), and the
Issuer providing for the merger of Newco with and into the Issuer (the
"Merger"), with the Issuer surviving the Merger as a wholly owned subsidiary
of VSI, and whereby, with certain exceptions and limitations, upon the
effectiveness of the Merger, all then-outstanding shares of the Issuer's no
par value Common Stock will be converted into a right to receive $0.797 per
share in cash, without interest, and (ii) other transactions associated with
the Merger. Pursuant to the Scherer Healthcare Inducement Agreement, dated
March 14, 1997 (the "SH Inducement Agreement"), between SHI, VSI and the
Issuer, SHI agreed to vote its shares of the Issuers common stock in favor of
the Merger Agreement, subject to certain conditions, including approval
thereof by the shareholders of SHI.
Mr. Scherer, Jr., also has the present intent to vote the shares of
common stock of the Issuer owned and/or held by him as Trustee to approve the
Merger Agreement.
The transactions associated with the Merger are described with
specificity in that certain Schedule 14A Proxy Statement Pursuant to Section
14(A) of the Securities Exchange Act of 1934 of SHI, filed with the
Commission on April 10, 1997 and amended on June 13, 1997.
Item 5. Interest In Securities Of The Issuer
(a) SHI has beneficial ownership of an aggregate of
13,791,192 shares of the Issuer's Common Stock, including
(i) 7,211,192 shares owned directly by SHI and (ii)
6,580,000 shares that may be issued upon exercise of
outstanding warrants to purchase Common Stock. SHI's
ownership represents 50.5% of the Issuer's Common Stock on a
primary basis and 66.1% on a fully diluted basis.
Before its dissolution, Scherer LLC owned directly
2,061,856 shares (14.5% of the outstanding shares) of the
Issuer's Common Stock. Scherer LLC also owned beneficially
certain shares of Issuer's Common Stock issuable upon
conversion of the Note pursuant to which the Issuer may
borrow up to $1.5 million. The Note is convertible at a
conversion price of $.70 per share of the Issuer's Common
Stock. As a result, if the Issuer borrows the full amount
available under the Note, the Note will be convertible into
2,142,857 shares of Issuer Common Stock. As of March 3,
1997, Scherer LLC had loaned $700,000 to the Issuer which
would be convertible into 1,000,000 shares of Issuer Common
Stock.
Before its dissolution, RIL owned directly 2,061,856
shares (14.5% of the outstanding shares) of the Issuer's
Common Stock. RIL also owned beneficially certain shares of
Issuer's Common Stock issuable upon conversion of the Note
pursuant to which the Issuer may borrow up to $1.5 million.
The Note is convertible at a conversion price of $.70 per
share of the Issuer's Common Stock. As a result, if the
Issuer borrows the full amount available under the Note, the
Note will be convertible into 2,142,857 shares of Issuer
Common Stock. As of March 3, 1997, Scherer LLC had loaned
$700,000 to the Issuer which would be convertible into
1,000,000 shares of Issuer Common Stock.
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Page 9 of 10 Pages
Mr. Scherer, Jr. beneficially owns 17,995,905 shares of
the Issuer's Common Stock (78.3% of the outstanding shares)
which includes (i) 1,546,392 shares owned directly by Mr.
Scherer, Jr.; (ii) 2,142,857 shares of Issuer Common Stock
issuable upon conversion of the Note pursuant to which the
Issuer may borrow up to $1.5 million. The Note is
convertible at a conversion price of $.70 per share of the
Issuer's Common Stock. As a result, if the Issuer borrows
the full amount available under the Note, the Note will be
convertible into 2,142,857 shares of Issuer Common Stock.
As of March 3, 1997, Scherer LLC had loaned $700,000 to the
Issuer which would be convertible into 1,000,000 shares of
Issuer Common Stock; (iii) 515,464 shares of Issuer's Common
Stock held by Mr. Scherer, Jr. as Trustee pursuant to the
Marquest Stock Trust Agreement; and (iv) 13,791,192 shares
beneficially owned by Scherer Healthcare, Inc. Mr. Scherer,
Jr. also has an option to purchase from Scherer Healthcare ,
Inc. warrants to purchase 100,000 shares of Issuer's Common
Stock.
Other than as described above and other than as a
result of stock or interest ownership in SHI, Scherer LLC,
or RIL, none of the directors and executive officers of SHI,
Scherer LLC or RII, the general partner of RIL, beneficially
own any shares of the Issuer's Common Stock except that (i)
Stephen Lukas, Sr. and Kenneth H. Robertson each has an
option to purchase from SHI warrants to purchase 10,000
shares of the Issuer's Common Stock; (ii) William J.
Thompson has an option to purchase from SHI warrants to
purchase 75,000 shares of the Issuer's Common Stock; and
(iii) William J. Thompson has been granted options to
purchase 150,000 shares of the Issuer's Common Stock. Each
of the options to purchase warrants has an exercise price of
$.25 per warrant and expires on March 31, 2003.
(b) Each of SHI, Scherer LLC and RIL has or had sole and/or
shared voting power and sole and/or shared power to dispose
of each of the shares of the Issuer's Common Stock that it
owns or owned.
(c) All transactions in the Issuer's Common Stock that were
effected during the past 60 days by persons named in
paragraph (a) above were fully described and disclosed in
Item 3 and Item 4 above.
(d) Pursuant to that certain Marquest Stock Trust
Agreement, the Scherer Children, jointly, have the right to
receive and/or the power to direct the receipt of dividends
from the securities covered by such Marquest Stock Trust
Agreement.
(e) On March 3, 1997 both Scherer LLC and RIL ceased to be
beneficial owners of more than 5% of the Issuer's shares.
Item 6. Contracts, Arrangements, Understandings Or Relationships With
Respect To Securities Of The Issuer.
Pursuant to the Marquest Stock Trust Agreement Mr. Scherer, Jr.
possesses the right to transfer and vote the securities held. There are no
other contracts, arrangements, understandings
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Page 10 of 10
or relationships with respect to the securities of Issuer, other than the
Marquest Stock Trust Agreement and Warrants and Convertible Notes, the Merger
Agreement and the SH Inducement Agreement described above.
Item 7. Material To Be Filed As Exhibits.
(a) Marquest Stock Trust Agreement dated February 23, 1997.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
July 1, 1997
--------------------------
Date
Scherer Healthcare, Inc.
/s/Robert P. Scherer, Jr.
--------------------------
By: Robert P. Scherer, Jr.
Chairman and Chief
Executive Officer
Scherer Capital Company, LLC
/s/Robert P. Scherer, Jr.
--------------------------
By: Robert P. Scherer, Jr.
Chairman and Chief
Executive Officer
/s/Robert P. Scherer, Jr.
---------------------------
Robert P. Scherer, Jr.
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VOTING TRUST
THIS VOTING TRUST AGREEMENT (the "Trust Agreement") effective as of
February 23, 1997, is entered into by and among Robert P. Scherer, III, Lesley
E. Scherer Reeves, Stephen M. Scherer and Mark C. Scherer (collectively, the
"Scherer Children") and Robert P. Scherer, Jr. (the "Trustee").
WHEREAS, the Scherer Children, pursuant to that certain Settlement
Agreement of even date herewith (the "Settlement Agreement") each own shares of
the common stock of Marquest Medical Products, Inc., a Colorado corporation
"(MMP"), in the amount set opposite their names on Exhibit A attached hereto and
made a part hereof (the "Common Stock").
WHEREAS, pursuant to the Settlement Agreement the Scherer Children agree to
deposit all of the Common Stock with the Trustee.
WHEREAS, the Trustee is willing to act as voting trustee pursuant to the
terms of this Trust Agreement.
NOW THEREFORE, for and in consideration of the premises, mutual promises,
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. The Scherer Children hereby appoint Robert P. Scherer, Jr. as Trustee
hereunder, and Robert P. Scherer, Jr. hereby accepts said appointment and agrees
to act as Trustee under this Trust Agreement. The Trustee acknowledges receipt
of the stock certificates listed on Exhibit A.
2. Each of the Scherer Children shall transfer to the Trustee the
certificates representing all shares of Common Stock owned by such Scherer
Child. All such certificates shall be duly endorsed or accompanied by proper
instruments duly executed for transfer thereof to the Trustee. All shares of
Common Stock at any time delivered to the Trustee hereunder are hereinafter
called "MMP Trust Stock." The Trustee shall present to MMP all certificates
representing MMP Trust Stock for surrender and cancellation and for the issuance
and delivery to the Trustee of new certificates (the "Trust Stock") registered
in the name of the Trustee or its nominee.
3. The Trustee shall file a copy of this Trust Agreement at MMP's
Colorado office located at 11039 East Lansing Circle, Englewood, Colorado 80112,
and such agreement shall be open to inspection by any stockholder of MMP or any
of the Scherer Children during normal business hours.
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4. This Trust Agreement shall be irrevocable by the Scherer Children and
their successors and assigns and shall terminate only in accordance with the
provisions of Paragraphs 8 and 10 hereof. The nomination of the Trustee during
the term of the trust shall be irrevocable by the Scherer Children and their
successors and assigns and shall terminate only in accordance with Paragraphs 8
and 10 hereof.
5. The Trustee shall be entitled to exercise any and all voting rights
in respect to the Trust Stock either in person or by proxy or consent, as
hereinafter provided, unless otherwise directed by an order of a court of
competent jurisdiction. The Trustee shall have full power and authority to vote
all shares of Trust Stock with respect to all matters, including, without
limitation, the election or removal of directors, the merger of MMP, the sale of
all or substantially all of the assets or stock of MMP, or the dissolution of
MMP, voted on by the shareholders of MMP (whether at a regular or special
meeting or pursuant to a unanimous written consent). In exercising its voting
rights in accordance with this Paragraph 5, the Trustee shall take such actions
at annual, special or other meetings of stockholders of MMP or in connection
with any action by consent in lieu of a meeting.
6.(a) Each of the Scherer Children agrees that during the term of this
Trust Agreement, the rights in the Trust Stock and this Agreement shall not be
sold, transferred or assigned.
(b) Except as provided herein, the Trustee shall not dispose of,
transfer, or in any way encumber, the Trust Stock; provided, however, the
Trustee shall have the power and authority to transfer the Trust Stock in
connection with the sale of all or substantially all of the assets or stock
of MMP.
7. Pending the termination of this Trust as hereinafter provided, the
Trustee shall, immediately following the receipt of each dividend or
distribution as may be declared and paid upon the Trust Stock in cash or
property, other than stock or securities of MMP or Scherer Healthcare, Inc., a
Delaware corporation, pay the same over to, or as directed by, the Scherer
Children in proportion to their interests as then known to the Trustee. The
Trustee shall receive and hold dividends and distributions of stock or
securities of MMP or SHI upon the same terms and conditions as the Trust Stock.
8. This Trust Agreement shall terminate upon the earlier of: (a)
January 30, 2003 or (b) the death of Robert P. Scherer, Jr.. Upon such
termination, all Trust Stock and any other property held by the Trustee
hereunder shall be distributed to the Scherer Children in proportion to their
interests as then known to the Trustee.
9. The Trustee may at any time or from time to time appoint an agent or
agents and may delegate to such agent or agents the performance of any
administrative duty of the Trustee. The Trustee shall not be answerable for the
default or misconduct of any agent or attorney appointed by it in pursuance
hereof if such agent or attorney shall have been selected with reasonable care.
The duties and responsibilities of the Trustee shall be limited to those
expressly set forth in this Trust Agreement. The Trustee shall be fully
protected by acting in reliance upon
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<PAGE>
any notice, advice, direction or other document or signature believed by the
Trustee to be genuine. The Trustee may consult with counsel selected by it and
the opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken or omitted or suffered by the
Trustee hereunder in good faith and in accordance with such opinion.
10. The Trustee may resign at any time. Upon such resignation this Trust
Agreement shall terminate.
11. The provisions of this Trust Agreement and of the rights and
obligations of the parties hereunder shall be governed by the laws of the State
of Colorado.
12. This Trust Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors, heirs and
permitted assigns.
13.(a) Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be sent by hand delivery, by
certified mail (return receipt requested) or by a recognized national overnight
courier service as set forth below, with a copy to each of the other parties
hereto:
To the Trustee:
--------------
Robert P. Scherer, Jr. and Robert P. Scherer, Jr.
2859 Paces Ferry Road 10 Cates Ridge
Suite 300 Atlanta, Georgia 30327
Atlanta, Georgia 30339
To Scherer Children:
-------------------
Robert P. Scherer, III Lesley E. Scherer Reeves
217 Goldenrod Avenue 4621 Dorchester
Corona Del Mar, California 92625 Corona Del Mar, California 92625
Stephen M. Scherer Mark C. Scherer
7510 York Drive #10 Ellesworth Lane
St. Louis, Missouri 63105 St. Louis, Missouri 63124
(b) Notices delivered pursuant to Section 15(a) hereof shall be deemed
given: at the time delivered, if personally delivered, three (3) business days
after being deposited in the mail, if mailed; and one (1) business day after
timely delivery to the courier, if by overnight courier service.
(c) Unless otherwise specifically provided herein, any notice to or
communication with the Scherer Children hereunder shall be addressed to the
Scherer Children at their respective addresses appearing on the Trustee's
transfer books. The addresses of the Scherer Children, as
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<PAGE>
shown on the Trustee's transfer books, shall in all cases be deemed to be the
addresses of the Scherer Children for all purposes under this Trust Agreement,
without regard to what other or different addresses the Trustee may have for any
of the Scherer Children on any other books or records of the Trustee.
14. Each of the parties hereto acknowledges and agrees that in the event
of any breach of this Trust Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (a) will waive, in
any action for specific performance, the defense of adequacy of a remedy at law
and (b) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Trust
Agreement in any action instituted in any state or federal court sitting in
Atlanta, Georgia. Each party hereto consents to personal jurisdiction in any
action brought in any state or federal court sitting in Atlanta, Georgia.
15. This Trust Agreement, including all Exhibits hereto (which are
incorporated herein by this reference), contains the entire agreement and
understanding concerning the subject matter hereof between the parties hereto.
16. This Trust Agreement may not be modified or amended except by a
writing executed by all of the parties hereto. A copy of any amendment to this
Trust Agreement shall be filed in the registered office of MMP.
17. This Trust Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute the same Agreement.
18. Common nouns and pronouns shall be deemed to refer to the masculine,
feminine, neuter, singular, and plural, as the identity of the person or
persons, firm or corporation may in the context require.
IN WITNESS WHEREOF, each party hereto has caused this Trust Agreement to be
executed as of the day and year first above written.
SCHERER CHILDREN
/s/Robert P. Scherer, III
-------------------------
Robert P. Scherer, III
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
-4-
<PAGE>
[SIGNATURES CONTINUED FROM PRECEDING PAGE]
/s/Lesley E. Scherer Reeves
---------------------------
Lesley E. Scherer Reeves
/s/Stephen M. Scherer
---------------------
Stephen M. Scherer
/s/Mark C. Scherer
------------------
Mark C. Scherer
TRUSTEE
/s/Robert P. Scherer, Jr.
-------------------------
Robert P. Scherer, Jr.
-5-
<PAGE>
EXHIBIT A
Name Company No. of
---- ------- ------
Shares
------
Robert P. Scherer, III Marquest Medical Products, Inc. 128, 866
Lesley E. Scherer Reeves Marquest Medical Products, Inc. 128, 866
Stephen M. Scherer Marquest Medical Products, Inc. 128, 866
Mark C. Scherer Marquest Medical Products, Inc. 128, 866
