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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Amendment No. 2
UNDER THE SECURITIES EXCHANGE ACT OF 1934
SCHERER HEALTHCARE, INC.
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(Name of issuer)
Common Stock, $.01 Par Value
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806530-10-1
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(Cusip Number)
Bruce L. Newberg Jon Brooks
11601 Wilshire Boulevard 265 East 66th Street, #25F
Los Angeles, CA 90025 New York, NY 10021
-with copies to-
Joseph F. Mazzella, Esq.
NUTTER MCCLENNEN & FISH, LLP
One International Place
Boston, Massachusetts 02110
(617) 439-2000
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
September 5, 2000
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(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 [ ].
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No. 806530-10-1 SCHEDULE 13D/A Page 2 of 5 Pages
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1. NAME OF REPORTING PERSON/S.S. OR I.R.S. IDENTIFICATION
NO. OF ABOVE PERSON
BRUCE L. NEWBERG
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ ]
(B) [X]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
WC, OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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7. SOLE VOTING POWER
0
NUMBER OF --------------------------------------------------
SHARES 8. SHARED VOTING POWER
BENEFICIALLY
OWNED BY 203,748.78
EACH --------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON
WITH: 0
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10. SHARED DISPOSITIVE POWER
203,748.78
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
203,748.78
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.7%
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14. TYPE OF REPORTING PERSON
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
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CUSIP No. 806530-10-1 SCHEDULE 13D/A Page 3 of 5 Pages
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1. NAME OF REPORTING PERSON/S.S. OR I.R.S. IDENTIFICATION
NO. OF ABOVE PERSON
JON BROOKS
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ ]
(B) [X]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
PF
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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7. SOLE VOTING POWER
121,425
NUMBER OF --------------------------------------------------
SHARES 8. SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
EACH --------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON
WITH: 121,425
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10. SHARED DISPOSITIVE POWER
0
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
121,425
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.8%
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14. TYPE OF REPORTING PERSON
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.
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CUSIP No. 806530-10-1 SCHEDULE 13D/A Page 4 of 5 Pages
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THIS SCHEDULE 13D AMENDS AND SUPPLEMENTS THAT CERTAIN SCHEDULE 13D FILED ON
SEPTEMBER 17 , 1999, AS AMENDED ON JULY 18, 2000.
The only item of the Schedule 13D amended hereby is Item 4, which is
supplemented by the following information.
ITEM 4. PURPOSE OF THE TRANSACTION
On July 18, 2000, the Reporting Persons reported making an offer to acquire all
of the outstanding capital stock of the Issuer for a price of $5.00, or higher,
per share in cash. Such offer was made by letters dated July 18, 2000 (attached
as Exhibit B to Amendment No. 1 to this Schedule 13D). Such proposal is not
subject to any purchaser financing contingency, but is subject to completion of
due diligence and execution of definitive purchase agreements.
Since the making of such proposal, the Reporting Persons have not received any
response from the Company, and the Company has not indicated any willingness or
availability to discuss, negotiate or implement the Reporting Persons' proposal.
By letter dated September 5, 2000, (attached as Exhibit D to this Amendment No.
2), the Reporting Persons:
a) informed the Board that the $5.00 per share offer will expire as of the close
of business on September 11, 2000, unless the Board accepts, or enters into
serious discussions regarding such proposal; and
b) demanded that the Board disclose, prior to the Annual Meeting, its reasons
for deciding not to take any "direct action" regarding the results of a recently
concluded investigation into whether Robert Scherer mis-used corporate assets,
and otherwise breached his duties to shareholders. The Reporting Persons also
demanded that the Board disclose the nature of any wrongful actions indicated by
such investigation, in a manner that would allow shareholders to evaluate such
information prior to the election of directors at the Annual Meeting.
All other information previously reported hereunder remains applicable and in
effect.
ITEM 5. The Reporting Persons have not entered into any transactions in
securities of the Issuer within
the past 60 days.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit B. Letters dated July 18, 2000 to the Issuer's Board of Directors
(previously filed).
Exhibit C. Press Release dated July 18, 2000 (previously filed).
Exhibit D. Letter dated September 5, 2000, filed herewith.
Exhibit E. Press Release dated September 5, 2000, filed herewith.
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CUSIP No. 806530-10-1 SCHEDULE 13D Page 5 of 5 Pages
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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.
This statement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one (1)
instrument.
Date: September 5, 2000 /S/ Bruce L. Newberg
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Bruce L. Newberg
Date: September 5, 2000 /S/ Jon Brooks
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Jon Brooks
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EXHIBIT D
September 5, 2000
By Fax
Non-Employee Members of the
Board of Directors
Scherer Healthcare Inc.
120 Interstate N. Parkway, S.E.
Suite 305
Atlanta, Georgia 30339
Dear Sirs:
It has now been seven weeks since we formally proposed to the Board
that we acquire all of the outstanding stock of the Company for $5.00 per share
in cash--more than a 40% premium over the closing price on July 14, 2000. We
have followed up with several unsuccessful attempts to commence discussions and
to proceed.
Since we submitted our offer on July 18, 2000, we have received no
response whatsoever from the Company. We have not received any requests for
further information. We have not been asked to clarify or modify our offer.
Despite the fact that we have offered the Board a material and unequivocal
benefit to public shareholders, you have made no effort whatsoever to contact us
to discuss, negotiate or implement it.
In fact, the only communication we have received from the Board is
notification that it has "completed its investigation" of whether Robert Scherer
has mis-used and wasted corporate assets for personal purposes, and otherwise
breached his duties to shareholders. Even then, rather than disclose what
inappropriate activities may have been found, you have only informed us that you
have decided "not to take any direct action" regarding the results of this new
investigation. Are shareholders to conclude that wrongful actions were found,
but that the Board has chosen to do nothing? If so, such inaction further
indicates that this Board is only prepared to act to protect the interests of
Robert Scherer.
As you well know, under the Securities Exchange Act of 1934, you are
obligated to disclose any and all facts that are material to a shareholder's
evaluation of the competence and qualifications of the nominees standing for
election at the Company's Annual Meeting. Your decision not to take action
regarding a Director's wrongful behavior is not dispositive of whether such
behavior must be disclosed to shareholders who will cast votes for directors.
Accordingly, as shareholders, we hereby demand that you supplement the Company's
proxy material to fully and accurately disclose the full results of the
investigation, and the basis on which the Board has determined not to take any
"direct action" with regard to such results. We submit that the results of such
investigation, and the Board's reasons for not taking action, are material to a
shareholder's evaluation of the competence and qualifications of each member of
the Board.
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The Board's continued disregard for public shareholders has left us,
and other shareholders as well, more than amazed- we are appalled.
We cannot think of any other situation where a public company Board has
simply ignored a legitimate, premium priced offer that would materially benefit
public shareholders. In fact, it appears that by treating public shareholders as
nothing more than a powerless, second class of shareholder you have, de facto,
created a second class of shares without announcing or disclosing the effect it
has on an investor.
Despite your apparent desire to close your eyes to this opportunity for
shareholders, our offer stands. However, since we believe that we, and all
shareholders, deserve action before the Company's Annual Meeting, we hereby
notify you that this offer shall expire as of the close of business on September
11, 2000.
It should be self-evident that by allowing our offer to expire, without
an alternative that offers shareholders comparable value, the Board is not
fulfilling its responsibilities to those shareholders. Public shareholders
deserve, and are entitled to demand, that this Board act in their interest, or
be held responsible for not doing so. We hope the Board is not so complacent and
dominated by Robert Scherer, that it believes that we and other shareholders
will not do so.
We look forward to your long overdue response.
Very truly yours,
Bruce Newberg
Jon Brooks
Cc: David M. Calhoun, Esq. (via fax)
Craig M. Frankel, Esq., Frankel & Associates (via fax)
<PAGE>
EXHIBIT E
SCHERER BOARD FAILS TO RESPOND TO $5.00 OFFER
BUYERS SET DEADLINE
September 5, 2000. Boston, Massachusetts. Two long-time stockholders of
Scherer Healthcare Inc. (NASDAQ: SCHR) who, on July 18, 2000, offered to acquire
all common stock of the Company for a cash price of $5.00 per share, announced
that their offer would expire on September 11, 2000. The stockholders did so
after the Company failed to respond in any way to the proposal, notwithstanding
that the offer represented a 40% premium over pre-offer market prices for the
Company's stock.
The stockholders, Bruce L. Newberg and Jon Brooks, already own over 7%
of the Company's stock and have repeatedly asked the Board to pursue higher
values for shareholders through a sale, repurchase of shares from stockholders,
or a going-private merger. Their $5 offer, contained in a letter dated July 18,
2000, and related correspondence, were included in a 13D filing made with the
SEC.
In a letter dated September 5, 2000, the Stockholders commented on the
Board's lack of response, stating that: "...it appears that by treating public
shareholders as nothing more than a powerless, second class of shareholder you
have, de facto, created a second class of shares without announcing or
disclosing the effect it has on an investor.... It should be self-evident that
by allowing our offer to expire, without an alternative that offers shareholders
comparable value, the Board is not fulfilling its responsibilities to those
shareholders. Public shareholders deserve, and are entitled to demand, that this
Board act in their interest, or be held responsible for not doing so."
In their letter to the Board, filed with a Schedule 13D Amendment, the
stockholders also noted the Board's recent notification that it would not take
"direct action" on the results of a new investigation into whether Robert
Scherer had mis-used corporate assets, and otherwise breached his duties to
shareholders. They demanded that the results of that investigation, and the
basis for the Board's inaction, be disclosed to shareholders prior to the
election of Directors on September 18, 2000.
They stated in their letter: "....rather than disclose what
inappropriate activities may have been found, you have only informed us that you
have decided "not to take any direct action" regarding the results..... Are
shareholders to conclude that wrongful actions were found, but that the Board
has chosen to do nothing? If so, such inaction further indicates that this Board
is only prepared to act to protect the interests of Robert Scherer.... We submit
that the results of such investigation, and the Board's reasons for not taking
action, are material to a shareholder's evaluation of the competence and
qualifications of each member of the Board."
In their original offer, the stockholder's noted that the acquisition
price of $5 per was based solely on the Company's publicly available financial
information, and requested that the Board commence discussions on price and
other terms as soon as possible. The proposal does not contemplate a financing
contingency.
FOR FURTHER INFORMATION:
