<PAGE>
As filed with the Securities and Exchange Commission on December 16, 1996
Registration No. 33-85564
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-2
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------
MARQUEST MEDICAL PRODUCTS, INC.
(Exact name of Registrant as specified in its charter)
Colorado 84-0785259
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
11039 East Lansing Circle
Englewood, Colorado 80112
(303) 790-4835
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
--------------------
Margaret Von der Schmidt
Vice President - Finance
Marquest Medical Products, Inc.
11039 East Lansing Circle
Englewood, Colorado 80112
(303) 790-4835
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
Copy to:
William L. Floyd, Esq.
Long, Aldridge & Norman
One Peachtree Center, Suite 5300
303 Peachtree Street
Atlanta, Georgia 30308
(404) 527-4000
--------------------
Approximate date of commencement of proposed sale to the public: FROM TIME
TO TIME 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, check the following box: /X/
If the Registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1)
of this Form, check the following box: /X/
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 thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until such Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE>
PROSPECTUS
MARQUEST MEDICAL PRODUCTS, INC.
669,514 WARRANTS TO PURCHASE COMMON STOCK, NO PAR VALUE, AT $0.75 PER SHARE
834,514 SHARES COMMON STOCK, NO PAR VALUE
--------------------------
This Prospectus relates to 669,514 Warrants to purchase Common Stock at
$0.75 per share, expiring March 31, 1999 (the "Warrants"), and 834,514 shares
(the "Shares") of Common Stock, no par value (the "Common Stock"), which either
have been issued or are issuable upon conversion of the Warrants, of Marquest
Medical Products, Inc., a Colorado corporation ("Marquest" or the "Company"),
all of which are being offered for the accounts of certain selling security
holders of the Company (the "Selling Security Holders"). See "Selling Security
Holders."
The Selling Security Holders are former holders of the Company's 6% Swiss
Franc denominated bonds (the "Swiss Bonds") who received the Warrants as part of
an exchange offer for the Swiss Bonds. To exercise their Warrants, the Selling
Security Holders may pay the Company in cash or may elect to surrender an equal
amount of the Company's U.S. Dollar denominated 8% Notes due March 31, 1999,
which were also obtained by the Selling Security Holders as part of the Swiss
Bond exchange. The Company will not receive any of the proceeds received by the
Selling Security Holders from the Warrants and the Common Stock (collectively,
the "Securities") sold, except up to $502,135.50 from the exercise of the
Warrants being registered if the Selling Security Holders exercise the Warrants
with the payment of cash. See "Use of Proceeds" and "Plan of Distribution."
The Company's Common Stock is included in the Nasdaq SmallCap Market (the
"SmallCap Market") under the symbol "MMPI." On December 12, 1996, the last sale
price for the Common Stock as reported by the SmallCap Market was $.6875 per
share. There is no market for the Warrants, and no assurance can be given that
a market will develop.
The Securities may be offered to the public from time to time by the
Selling Security Holders. The Selling Security Holders do not include any
officers or directors of the Company. Each of the Selling Security Holders may
sell the Shares offered hereby from time to time on the SmallCap Market, or such
national securities exchange or automated interdealer quotation system on which
shares of Common Stock and the Warrants are then listed, through negotiated
transactions or otherwise at market prices prevailing at the time of the sale or
at negotiated prices. The Selling Security Holders must effect such
transactions by notifying the Company in advance of any intended transaction in
order for the Company to determine compliance with applicable federal and state
securities laws, and then upon receipt of notice from the Company that such
transaction may proceed, by selling the Securities only to or through brokers or
dealers. Such brokers or dealers may receive compensation in the form of
commissions or otherwise in such amounts as may be negotiated by them. The
Company has agreed to bear all expenses in connection with the registration and
sale of the Securities being offered by the Selling Security Holders, other than
<PAGE>
commissions, concessions or discounts to brokers or dealers and fees and
expenses of counsel or other advisors to the Selling Security Holders. See
"Plan of Distribution."
-------------------------
INVESTORS SHOULD CONSIDER CAREFULLY THE INFORMATION DISCUSSED UNDER THE CAPTION
"RISK FACTORS."
-------------------------
This Prospectus is dated December 16, 1996.
<PAGE>
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION NOR HAS THE SECURI-
TIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PRO-
SPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL
OFFENSE.
No person has been authorized in connection with this offering to give any
information or to make any representation not contained or incorporated by
reference in this Prospectus, and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company.
This Prospectus does not constitute an offer to sell or a solicitation of any
offer to purchase any securities other than those to which it relates or an
offer to any person in any jurisdiction where such offer or solicitation would
be unlawful. Neither the delivery of this Prospectus nor any sales hereunder
shall under any circumstances create any implication that the information
herein, or incorporated by reference herein, is correct as of any time
subsequent to the date hereof or thereof.
TABLE OF CONTENTS
Page
----
Available Information. . . . . . . . . . . . . . . . . . . . . . . . 3
Incorporation of Certain Documents by Reference. . . . . . . . . . . 3
Prospectus Summary . . . . . . . . . . . . . . . . . . . . . . . . . 4
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Selling Security Holders . . . . . . . . . . . . . . . . . . . . . . 9
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . 12
Description of Securities. . . . . . . . . . . . . . . . . . . . . . 12
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxies, information statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements, information statements and other information can be inspected
and copied at the public reference facilities of the Commission at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and at certain of its regional
offices, the addresses of which are 7 World Trade Center, Suite 1300, New York,
New York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such materials can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. In addition, reports, proxies and
information statements and other information concerning the Company may be
inspected at the offices of the Nasdaq SmallCap Market, 1735 K Street, N.W.,
Washington, D.C. 20006. The Commission maintains an Internet web site that
contains reports, proxy and information statements and other information
regarding issuers which file electronically with the Commission. The address of
the web site is http:\www.sec.gov.
The Company has filed with the Commission a Registration Statement on Form
S-2 under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Securities offered hereby. This Prospectus does not contain all
of the information set forth in the Registration Statement and the exhibits and
schedules thereto, to which reference is hereby made. For further information
with respect to the Company and the Securities offered by this Prospectus,
reference is made to the Registration Statement, including the exhibits and
schedules thereto. Copies of all or any part of the Registration Statement,
including the documents incorporated by reference therein and exhibits thereto,
may be obtained, upon payment of the prescribed fees, at the offices of the
Commission as set forth above.
Additionally, this Prospectus is accompanied by copies of the Company's
Annual Report on Form 10-K for the fiscal year ended March 30, 1996 and the
Quarterly Reports on Form 10-Q for the quarters ended June 29, 1996 and
September 28, 1996, filed by the Company with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended March
30, 1996 and the Quarterly Reports on Form 10-Q for the quarters ended June 29,
1996 and September 28, 1996, filed by the Company with the Commission (File No.
0-11484) pursuant to the Exchange Act, are hereby incorporated by reference into
this Prospectus. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Unless previously delivered, the Company will provide, without charge, to each
person to whom a copy of this Prospectus is delivered, upon written or oral
request, a copy of all of the documents referred to above which have been or may
be incorporated by reference into this Prospectus, other than certain exhibits
to such documents. Such requests shall be made to the attention of Margaret Von
der Schmidt, Vice President-Finance, Marquest Medical Products, Inc., 11039 East
Lansing Circle, Englewood, Colorado 80122; (303) 790-4835.
3
<PAGE>
PROSPECTUS SUMMARY
The following summary should be read in conjunction with and is qualified
in its entirety by the more detailed information herein and the Consolidated
Financial Statements and Notes thereto incorporated herein by reference.
THE COMPANY
Marquest Medical Products, Inc., a Colorado corporation (the "Company"),
was incorporated in 1979 and is a manufacturer, marketer and provider of
disposable medical products for use in the respiratory care, cardiopulmonary
support and anesthesiology markets. The Company manufactures and distributes
four major groups of products: (1) arterial blood gas systems, (2) anesthesia
delivery systems, (3) respiratory systems and (4) heated wire humidification
systems.
The Company's executive and administrative offices are located at 11039
East Lansing Circle, Englewood, Colorado 80112, and its telephone number is
(303) 790-4835.
RISK FACTORS
Prospective purchasers should consider carefully the information under the
caption "Risk Factors," including the impact of government regulation and
significant operating losses experienced since the suspension of operations in
October 1991 by the U.S. Food and Drug Administration. See "Risk Factors."
THE OFFERING
The following securities are offered pursuant to this Prospectus for the
account of the Selling Security Holders:
Warrants to purchase Common Stock at $0.75 per share,
exercisable until March 31, 1999 . . . . . . . . . . . . . . . 669,514
-------
Shares of Common Stock, no par value . . . . . . . . . . . . . 834,514
-------
-------
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Securities by the Selling Security Holders. The Company, however, may receive
proceeds upon the exercise of the Warrants, which will be used for working
capital. See "Use of Proceeds."
4
<PAGE>
SUMMARY FINANCIAL DATA
(Thousands of Dollars, Except Share and Per Share Amounts)
<TABLE>
<CAPTION>
SIX FISCAL FISCAL NINE THREE FISCAL FISCAL
MONTHS YEAR YEAR MONTHS MONTHS YEAR YEAR
ENDED ENDED ENDED ENDED ENDED ENDED ENDED
SEPT. 28, MARCH 30, APRIL 1, APRIL 2, JULY 3, APRIL 3, MARCH 28,
1996 1996 1995 1994 1993 1993 1992
---- ---- ---- ---- ---- ---- ----
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING DATA:
Net Revenues $ 10,805 $22,443 $20,576 $17,139 $5,327 $21,935 $30,294
Net Earnings (Loss) from
Continuing Operations
before Extraordinary
Item (335) (60) (3,450) (2,312) (1,042) (18,542) (6,078)
Net Earnings (Loss) (335) (60) (3,450) (2,030) (336) (18,338) (10,100)
Earnings (loss) per common
share:
Continuing Operations
before Extraordinary
Item (0.02) (0.01) (0.46) (0.51) (0.23) (4.17) (1.41)
Net Earnings (Loss) (0.02) (0.01) (0.46) (0.45) (0.07) (4.12) (2.34)
BALANCE SHEET DATA:
Total Assets 14,001 15,393 13,992 16,929 18,366 21,007 40,529
Long-Term Obligations 4,767 4,990 5,961 7,659 6,745 -0- 1,589
Cash Dividend Declared
Per Common Share 0.00 0.00 0.00 0.00 0.00 0.00 0.00
</TABLE>
Effective July 3, 1993, the Company effected a quasi-reorganization.
5
<PAGE>
RISK FACTORS
In analyzing this offering, prospective investors should carefully consider
the following risk factors.
GOVERNMENT REGULATION
The Company and its products are subject to strict oversight and regulation
by the U.S. Food and Drug Administration (the "FDA") for substantially all of
its manufactured products. Most of the Company's products are subject to
validation as required by the current Good Manufacturing Practices Regulations
("GMP") of the FDA. The Company's operations are subject to periodic inspection
by the FDA and notices of deficiency could issue as a result of such FDA
inspections. The failure to meet regulatory standards or to remedy any
deficiency could result in corrective action by the FDA.
TEMPORARY SUSPENSION OF OPERATIONS DUE TO ALLEGED VIOLATION
On August 8, 1991, the Company was named in a civil complaint filed by the
FDA seeking an injunction and alleging that the Company violated GMP, and that
certain products were misbranded and adulterated for violation of other FDA
regulations. This dispute was resolved through the execution of a Consent
Decree by the Company on October 1, 1991, which provided for a series of
inspections on the part of the FDA in the Company's manufacturing facilities.
The Consent Decree permanently enjoined the Company from directly or indirectly
introducing and delivering for introduction into interstate commerce any article
or device that has been manufactured, processed, packed, held or labeled at the
Company's Colorado facility unless and until the Company is in compliance with
GMP. In the event that the Company was found to be in violation of any of the
terms of the Consent Decree, possible civil or criminal charges could be
considered by the FDA. Following the first of these inspections, the Company
was directed on October 8, 1991, to suspend its U.S. manufacturing and
distribution operations (the "Suspension") until the Company demonstrated it had
adequate controls in place to ensure substantial compliance with GMP to the
satisfaction of the FDA. This Suspension continued until January 9, 1992.
The Suspension during late 1991 and early 1992 resulted in the layoff of
350 persons from the Company's manufacturing workforce. The cessation of
manufacturing and distribution also caused a significant decrease in revenues
and a cash flow deficit. As a result of the financial strain created, and in
order to keep the Company operating, Marquest was forced to sell subsidiaries
and facilities to raise sufficient operating capital to sustain the Company's
ongoing operations. The Suspension and actions on the part of the Company to
comply with the FDA directives has had a significant and pervasive effect on the
Company.
The Company was inspected by the FDA during September of 1996 and received
a Form 483, Inspection Observations, containing three alleged nonconformances
with GMP. Following the 1996 inspection, the Consent Decree expired October 1,
1996 and is of no further force and effect.
6
<PAGE>
ADVERSE AFFECT ON MARKET PRICE OF COMMON STOCK
Sales of substantial amounts of Common Stock in the public market after the
completion of this Offering could adversely affect the market price of the
Common Stock. Upon completion of this Offering, assuming exercise of all of the
Warrants, the Company will have approximately 14,935,138 shares of Common Stock
outstanding, 9,273,048 of which are "restricted securities" as such term is
defined in Rule 144 promulgated under the Securities Act. Restricted securities
may be sold pursuant to an effective registration statement under the Securities
Act or in accordance with applicable exemptions from the registration
requirements of the Securities Act. Rule 144 provides for the sale of limited
quantities of restricted securities without registration under the Securities
Act. The 834,514 shares offered hereby, as well as 4,827,576 shares of Common
Stock outstanding as of November 30, 1996 and not subject to restriction, will
be available for immediate sale in the public market without restriction as of
the date of this Prospectus.
Sales of substantial amounts of shares of Company Stock pursuant to this
Offering, Rule 144 or otherwise may be expected to have an adverse effect on the
trading price and market for the Company's Common Stock.
MARKET OVERHANG OF WARRANTS AND CONVERTIBLE NOTE
As of November 30, 1996, the Company had outstanding warrants to purchase
7,719,466 shares of Common Stock at $0.75 per share, 669,514 of which are being
offered hereby. The warrants to purchase Common Stock at $0.75 per share expire
as follows: 50,000 on August 26, 2002; 3,419,466 (including 669,514 which are
being offered hereby) on March 31, 1999; and 4,250,000 on March 31, 2003. In
addition, the Company has outstanding a $700,000 8% note payable which is
convertible into 1,000,000 shares of Common Stock at $0.70 per share until April
1, 2001.
The holders of the Company's warrants and convertible note may be able to
purchase shares of Common Stock at prices substantially below the current market
price of the Company's Common Stock with a resultant dilution of the existing
stockholders' investment. The holders of the warrants and convertible note may
exercise their rights to acquire shares of Common Stock at times when the
Company would desire to obtain needed capital through a new offering of
securities on terms more favorable than those of the outstanding warrants and
convertible note. Thus, exercise of the warrants and/or conversion of the
convertible note may adversely affect the market price for the Common Stock, as
well as the terms on which the Company may be able to obtain additional
financing or capital. In addition, the exercise or conversion of outstanding
warrants and the convertible note and the subsequent sales of shares of Common
Stock by holders of such securities pursuant to a registration statement, under
Rule 144 or otherwise, could have an adverse affect upon the market for the
Company's Common Stock.
CONTROL BY INSIDERS
Of the 14,265,624 shares of Common Stock outstanding on November 30, 1996,
7,211,192 are owned by Scherer Healthcare, Inc. ("Scherer") and 2,061,856 shares
of Common Stock are owned by Scherer Capital, LLC ("Scherer Capital"), a company
under common control with Scherer. In addition, Scherer holds warrants to
purchase 6,580,000 shares of Common Stock at $0.75 per share, of which 2,330,000
will expire on March 31, 1999, and 4,250,000 will expire on March 31, 2003.
Scherer Capital is the holder of the Company's $700,000 note payable, secured by
certain assets for the Company and is convertible into 1,000,000 shares of
Common Stock at $0.70 per share until April 1, 2001. Assuming the exercise of
all warrants and conversion of the note payable as of November 30, 1996, Scherer
and Scherer Capital
7
<PAGE>
would be the beneficial owner of 77.1% of the Company's Common Stock.
Additionally, pursuant to the terms of a financing transaction consummated with
Scherer during fiscal 1994, Scherer has named a majority of the Company's Board
of Directors. As a result of the beneficial ownership of Common Stock of the
Company, Scherer and Scherer Capital will continue to have significant influence
over all matters requiring approval by the stockholders of the Company.
RESTRICTION ON DIVIDEND PAYMENTS
Dividends on Common Stock are declared and paid at the discretion of the
Company's Board of Directors, depending on the Company's earnings, financial
condition and other relevant factors. The last dividend was paid by the Company
in May 1990. Pursuant to a term loan agreement between the Company and a bank,
the Company may not, without the prior written consent of the bank, pay or
declare any dividends. The Company does not anticipate that any dividends on
the Company's Common Stock will be declared or paid in the foreseeable future.
LACK OF MARKET FOR WARRANTS
There is currently no market for the Warrants being offered by this
Prospectus and the Company has not applied for a listing for such Warrants on
any securities exchange. There can be no assurance that any market for these
Warrants will develop in the future.
DEFAULTED SWISS BONDS
During Fiscal 1986, the Company issued 25,000,000 Swiss Francs of bonds due
March 11, 1994. On January 14, 1992, the Company was notified that holders of
the majority of its Swiss bonds had exercised their right to put the bonds for
redemption as of March 11, 1992. The Company was not able to honor this put,
and, accordingly, defaulted on these obligations. In three exchange offers
during Fiscal 1994, the bondholders exchanged 96% of the total bonds outstanding
for a combination of the Company's notes, warrants to purchase common stock of
the Company and convertible preferred stock of Scherer. At November 30, 1996,
SFr 345,000 in principal amount of bonds remain outstanding and in default. To
date, there has been no action instituted by the remaining bondholders.
PAYMENT OF FEDERAL INCOME TAXES
During Fiscal 1994, the Company received a refund of federal income
taxes of approximately $745,000 due to the carryback to prior years of losses
incurred during the temporary suspension of operations by the FDA. The
Internal Revenue Service (the "IRS") completed an audit, and in July 1994,
determined that the losses could not be carried back and issued an assessment
to the Company for the taxes plus interest. In Fiscal 1996 the Company
settled additional tax issues related to audits by the IRS for fiscal years
1982-1988. The Company recorded $697,000 of additional taxes and interest.
The Company agreed to a repayment plan with the IRS whereby the Company paid
$400,000 in June 1995 and the remaining balance at March 30, 1996 of
approximately $997,000 plus interest and penalties to be accrued during the
repayment period, will be repaid in monthly installments of $40,000. The IRS
has placed a lien on the Company's facility in Englewood, Colorado to secure
payment of the taxes.
ALLEGED INFRINGEMENT OF JAPANESE PATENT
In a Complaint filed in September 1996, the Company's distributor of
arterial blood gas
8
<PAGE>
products in Japan is alleged to infringe the patent of Terumo K.K., resulting
in a request for an injunction against the distributor from further marketing
and sale of arterial blood gas samplers manufactured by the Company and
distributed in Japan. The Complaint does not currently name the Company,
only the Company's distributor in Japan. The Company is paying the cost to
defend its distributor in the litigation. Due to the preliminary nature of
this litigations, there can be no assessment as to the potential impact on
the Company. The litigation could have an adverse effect on the market for
the Company's arterial blood gas product in Japan.
LOSS OF DISTRIBUTION
One distributor of the Company's Products has accounted for 19%, 19% and
18% of the Company's net sales during Fiscal 1996, 1995 and 1994, respectively.
The loss of a major distributor without immediate replacement would have a
substantial negative impact on the Company's sales and overall financial
condition.
MARKET PLACE HIGHLY COMPETITIVE
The medical device business is highly competitive. The Company has three
major competitors in the manufacture and distribution of its blood collection
systems, four major competitors in the manufacture and distribution of
disposable anesthesia products, four major competitors in respiratory and
nebulizer products, and two major competitors in its heated humidification
products. A number of the Company's competitors are larger companies with
greater resources and more diversified lines of medical products and services.
These competitors have the resources to spend substantially greater amounts on
marketing and research and development activities. Competitive factors may
adversely affect the Company's ability to maintain and increase market share.
PRODUCT LIABILITY
The sale of the Company's products may expose it to liability claims
resulting from the use of such products. Such claims may be expected to be
larger in the medical products areas where product failure may result in injury
or loss of life to persons. The Company carries product liability insurance
with limits of $5,000,000 per occurrence and in the aggregate. No assurances
can be given that such insurance is adequate to cover potential claims or that,
if a claim or claims are made, such insurance will not be canceled or become
prohibitively expensive.
ANTI-TAKEOVER PROVISIONS
The Company's Amended and Restated Bylaws contain certain provisions that
may have the effect of discouraging, delaying or preventing a change in control
of the Company or unsolicited acquisition proposals that a stockholder might
consider favorable, including provisions authorizing (i) special meetings of
stockholders of the Company upon the written request of the holders of at least
25% of the issued and outstanding Common Stock entitled to vote at such meeting
and (ii) requiring advance notice of not less than 120 days prior to an annual
meeting with regard to director nominees and stockholder proposals. In
addition, the Board of Directors of the Company adopted a common stock Rights
Agreement on August 18, 1991, which also may have the effect of discouraging,
delaying or preventing a change in control of the Company or unsolicited
acquisition proposals. See "Description of Securities - Common Stock Purchase
Rights" and "Description of Securities - Certain Anti-takeover Provisions."
9
<PAGE>
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Securities
being sold by the Selling Security Holders. The Warrant holders may pay all or
a portion of the exercise price of the Warrants by surrendering for retirement
the 8% Notes due 1999 (the "Marquest Notes") of the Company in a principal
amount equal to all or such portion of the exercise price. Accrued interest on
the Marquest Notes may not be directly applied to any portion of the Warrant
exercise price. However, assuming the exercise of all of the Warrants offered
hereby with the payment of cash, the maximum net proceeds from the exercise are
estimated to be approximately $502,135 after deducting the estimated expenses of
this offering. The Company will use the net proceeds received from the exercise
of such Warrants as working capital.
SELLING SECURITY HOLDERS
The table below sets forth information available to the Company with
respect to the Common Stock and the $0.75 Warrants held of record by the Selling
Security Holders as of the date of this Prospectus. Information with respect to
ownership has been determined from information provided by the Selling Security
Holders. Unless otherwise indicated in a footnote to the table, all of the
shares of Common Stock and the $0.75 Warrants owned by each Selling Security
Holder, as reflected in the table below, are being registered for resale. Also
registered for resale hereunder are all shares of Common Stock that may be
acquired by the Selling Security Holders upon the exercise of the $0.75 Warrants
owned by them. The number of shares of Common Stock or the $0.75 Warrants to be
sold by a Selling Security Holder in the offering is not within the control, or
knowledge, of the Company. If all such securities are sold by a Selling
Security Holder, such Selling Security Holder will not own any Securities of the
Company after this offering unless otherwise indicated in a footnote. There is
and has been no material relationship during the Company's history between the
Company or any affiliate of the Company with any Selling Security Holder. No
Selling Security Holder will own more than 1% of the Company's outstanding
Common Stock after the exercise of all outstanding Warrants.
Number of Shares of Number of $0.75
Common Stock Owned Warrants Owned
Name of Selling Security Holder Before the Offering (1) Before the Offering
------------------------------- ----------------------- -------------------
Aargauische Kantonalbank None 2,775
Arcadia Management, Inc. None 7,395
Raymond Aubry None 6,471
Frederic Baeriswyl None 2,311
Banca del Gottardo None 32,813
Banca Popolare Svizzera None 7,395
Bank Leu AG None 6,011
Banque Leu S.A. None 1,387
Banque Leu S.A. None 17,562
Max Baumann None 1,850
Bayerische Landesbank (Schweiz)
AG None 2,773
Celia Baylin Trust 12,000(2) None
Jack Baylin 18,000(2) None
Alewyn R. H. Birch None 463
Roland Bliggensdorfer-Suter None 925
Heinz Bosshard 4,000 None
Hans Brogli None 463
Buntco Inc. Profit Sharing Plan 2,000(2) 300
Elisabeth Chales-Ith None 463
Caesar Claude None 925
Pierre Cottet None 1,387
10
<PAGE>
Number of Shares of Number of $0.75
Common Stock Owned Warrants Owned
Name of Selling Security Holder Before the Offering (1) Before the Offering
------------------------------- ----------------------- -------------------
Joris Cranshaw None 1,849
Credit Suisse None 126,625
Shirley Dellheim 3,000(2) 1,000
Huguette Denogent None 925
Jean Naic DuBunldz None 925
Jean Dubrouloz None 6,010
Albert Dubas None 2,773
Dynamis Versicherungs-und
Anlageberatungs AG 5,000 None
Lois England 8% Charitable
Remainder Annuity Trust None 6,000
Richard England 5% Charitable
Remainder Unitrust 4,500(2) 23,600
Entlebucher Bank None 463
Eye Surgery Associates, PA
Employees Pension Plan Trust
FBO Samuel Winn 4,600(2) 600
Denis Favre None 463
Rosy Feuhbinger None 463
Gabriela Forster None 2,773
Anita Fuentes None 463
Pauline S. Ganz Trust None 9,500
Lore Gaudermann None 925
GBZ Genossenschaetliche
Zentralbank None 2,314
Green Haft Trust None 1,200
M. Andrew Greif Trust None 2,900
David L. Greif II Ltd.
Agency for Trustee None 3,800
C. Loren Greif-Simons Trust None 2,900
E. Gutzwiller & Cie Banquiers
Basel, Switzerland None 463
Milka Haas None 4,622
Helga Haldemann None 463
Willfried Haller-Weber None 4,622
Thomas Hasenfratz None 1,849
Heinrich Heutschi None 1,849
Hans Hornbacher 52,000 None
Hermann Huber None 463
Jorg Huber None 462
Viktor and Erika Kaiser None 925
Drs. Katims & Weissman
Endocrinology Associates PA,
Profit Sharing Fund None 700
Francis Lachenal None 925
La Grasso Bros. Inc. 1,500(2) 815
Gerhard Liebert None 56,383
Hildegard Litwinski None 1,387
Angelin Luyet None 925
Saul H. Magram 15,000(2) 24,956
Maria Mafferetti-Revilla None 10,168
Matman Properties, L.P. None 59,618
Mera Meyers None 925
Werner Mohrle None 1,387
Arnold Muller None 2,311
Hermann Mueller-Froschl None 925
Susanne Neidhardt None 463
11
<PAGE>
Number of Shares of Number of $0.75
Common Stock Owned Warrants Owned
Name of Selling Security Holder Before the Offering (1) Before the Offering
------------------------------- ----------------------- -------------------
Eugen Noser-Fehr None 2,600
Giovanne Pianezzi None 462
Popeline Trust Reg. None 4,160
Pierre Poscia None 463
Forrest B. Raffel Family Trust None 11,000
Margrith Ramseier None 925
Andre Rapp None 1,387
Beatrice Renz None 925
Jean-Jacques Rion None 1,387
Sandra Rossi 4,000 None
Rud, Blass & Cie AG 23,000 None
Grete Rumetsch None 463
Ruth Scherrer None 925
Heide Schmidt-Sailer None 925
Karl Schmalzer None 4,160
Fredy Schmutz None 1,849
Markus Schneider None 463
Peter Schudel None 925
Alma Schuer None 925
Martin Schuett None 4,622
Schweiz Volksbank None 1,387
Schweizerische Kreditanstalt None 462
Gertrude Seeman None 2,311
Karl Sieber None 1,849
Richard Slavin IRA R/O None 9,500
Leigh G. Smith None 4,300
Albert W. Stehli None 925
Milton & Joy Steinberg None 14,300
Joseph Tavernier None 925
Grety Tobler None 463
Harold Toppel None 15,244
Markus Tritschler None 925
Hertha Tschutsher None 925
Christoph Vogel None 4,622
Jean-Michel Wermeille None 463
Bruno Widler-Juchli None 463
Winchester Convertible Plus Plan None 99,825
Armin Wolfensberger None 463
Elsy Zanotelli-Hogger None 925
Raymond Zeltner 77,000 None
Alfred Zogg None 925
---- ---
TOTAL 225,600 (3) 669,514
------- -------
------- -------
- -------------------
(1) Excludes shares of Common Stock that may be acquired upon exercise of any
$0.75 Warrants.
(2) Represents shares of Common Stock, excluding shares of Common Stock
acquired pursuant to the exercise of any $0.75 Warrants. Such shares are
not being registered hereunder.
(3) Of these shares, 165,000 shares are being registered hereunder. See
footnote (2).
12
<PAGE>
PLAN OF DISTRIBUTION
The Securities may be sold from time to time by any of the Selling Security
Holders, or by pledgees, donees, transferees or other successors in interest.
Sales of the Shares may be made on the SmallCap Market, or such national
securities exchange or automated interdealer quotation system on which shares of
Common Stock are then listed, through negotiated transactions or otherwise at
prices and at terms then prevailing or at prices related to the then current
market price or at negotiated prices. Sales of the Warrants may be made through
negotiated transactions or otherwise at prices and at terms then prevailing or
at prices related to the then current market price or at negotiated prices.
The Securities may be sold by one or more of the following: (a) ordinary
brokerage transactions and transactions in which the broker solicits purchasers;
(b) purchases by a broker or dealer as principal and resale by such broker or
dealer for its account pursuant to this Prospectus; (c) a block trade in which
the broker or dealer so engaged will attempt to sell the Securities as agent but
may position and resell a portion of the block as principal to facilitate the
transaction; (d) an exchange distribution in accordance with the rules of such
exchange; and (e) through the writing of options on the Securities. The Selling
Security Holders must effect such transactions by notifying the Company in
advance of any intended transaction in order for the Company to determine
compliance with applicable federal and state securities laws, and then upon
receipt of notice from the Company that the transaction may proceed, by selling
the Securities only to or through brokers or dealers. If necessary, a
supplemental prospectus which describes the method of sale in greater detail may
be filed by the Company with the Commission pursuant to Rule 424(c) under the
Securities Act under certain circumstances. In effecting sales, brokers or
dealers engaged by any of the Selling Security Holders and/or the purchasers of
the Securities may arrange for other brokers or dealers to participate. Brokers
or dealers will receive commissions, concessions or discounts from the Selling
Security Holders and/or the purchasers of the Securities in amounts to be
negotiated immediately prior to the sale. In addition, any Securities covered
by this Prospectus which qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
Prospectus.
The Company has agreed to bear all expenses in connection with the
registration and sale of the Securities, other than commissions, concessions or
discounts to brokers or dealers and fees and expenses of counsel or other
advisors to the Selling Security Holders.
The Selling Security Holders and any broker or dealer who acts in
connection with the sale of the Securities hereunder may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act, and
any compensation received by them and any profit on any resale of the Securities
as principals might be deemed to be underwriting discounts and commissions under
the Securities Act.
DESCRIPTION OF SECURITIES
COMMON STOCK, NO PAR VALUE
The authorized capital stock of the Company consists of 50,000,000 shares
of Common Stock, no par value, of which 14,265,624 were issued and outstanding
as of October 21, 1996. All voting rights are vested in the holders of the
Company's Common Stock. In all matters to come before the stockholders,
holders of Common Stock have one vote per share. Holders of Common Stock are
not entitled to cumulative votes, which means that the holders of a majority
of the total voting power of such shares can elect all of the directors entitled
to be elected by the holders of Common Stock. The shares of Common Stock are
not subject to redemption, and the holders of the Common Stock have no
preemptive rights. The outstanding shares of Common Stock are fully paid and
nonassessable.
Upon liquidation of the Company, the holders of Common Stock are entitled
to receive on a prorata basis, after payment or provision for payment of all
debts and liabilities of the Company, all of the assets then legally available
for distribution in cash or in kind. The holders of Common Stock are entitled
to dividends and other distributions as and when declared by the Board of
Directors out of assets legally available therefor. The Company is not expected
to declare a cash dividend on the Common Stock in the foreseeable future. Under
the Term Loan Agreement dated June 30, 1994, between the Company and Colorado
National Bank (the "Bank"), the Company may not, without the prior written
consent of the Bank, pay or declare any dividends, or purchase, redeem or
otherwise acquire any of its capital stock, or make any other distributions of
any property to any of its shareholders.
13
<PAGE>
COMMON STOCK PURCHASE RIGHTS
On August 18, 1991, the Board of Directors of the Company declared a
dividend distribution of one right (a "Right") for each outstanding share of the
Company's Common Stock to shareholders of record at the close of business on
August 20, 1991 (the "Record Date"). Each Right entitles the registered holder
to purchase from the Company a unit consisting of one-half of a share (a "Unit")
of Common Stock at a purchase price of $25.00 per Unit, subject to adjustment.
The description and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and Bank of America National Trust &
Savings Association, as Rights Agent. This information provides a summary of
the Rights and is qualified in its entirety by reference to the Rights
Agreement.
The Rights are attached to all Common Stock certificates representing
shares outstanding, and no separate Rights Certificates have been distributed.
The Rights will separate from the Common Stock and a "Distribution Date" will
occur so that the Rights become exercisable no later than ten business days
following (1) the public announcement that a person or group (other than Scherer
Healthcare, Inc.) has acquired, or obtained the right to acquire, 15% or more of
the Company's outstanding shares or (2) the commencement of a tender or exchange
offer that would result in a person or entity (other than Scherer Healthcare,
Inc.) owning 15% or more of the Company's outstanding Common Stock. In the
event that 15% or more of the stock is actually held by a person or group, each
right not owned by such person or group allows the holder to buy $50.00 worth of
the Company's Common Stock, based upon the then-current market price, for
$25.00. The Company can redeem the rights at any time until 10 days following
the above events at a price of $.01 per Right. The Rights are not exercisable
until the Distribution Date and will expire at the close of business on August
20, 2001.
The rights will have certain anti-takeover effects. Upon the occurrence of
a Distribution Date, the rights will cause substantial dilution to any person or
group that attempts to acquire the Company without conditioning the offer on a
substantial number of rights being acquired. The rights will not interfere with
any business combination approved by the Board of Directors of the Company since
the Board of Directors of the Company may, at its option, at any time prior to
the close of business on the 10th day following a Distribution Date redeem the
rights at a price of $.01 per right.
CERTAIN ANTI-TAKEOVER PROVISIONS
SPECIAL MEETING OF STOCKHOLDERS. The Amended and Restated Bylaws of the
Company provide that special meetings of stockholders of the Company may be
called only by the Board of Directors or upon the written request of the holders
of at least 25% of the issued and outstanding Common Stock entitled to vote at
such meeting. This provision makes it more difficult for stockholders to call a
special meeting and take action that is opposed by the Board of Directors.
STOCKHOLDER ACTION BY WRITTEN CONSENT. The Colorado Business Corporation
Act allows an action required or permitted to be taken at any annual or special
meeting of stockholders to be taken in writing by the consent of holders of not
less than a majority of the outstanding shares of Common Stock entitled to vote
on such action. This provision may allow Scherer Healthcare, Inc. and Scherer
Capital, LLC to effect an action by written consent without the necessity of
calling a special meeting of stockholders.
DIRECTOR NOMINATION AND SHAREHOLDER PROPOSALS. The Amended and Restated
Bylaws establish an advance notice procedure with regard to nomination of
candidates for election as director and stockholder proposals, requiring that
notice of such proposals must be made in writing to the Secretary of the Company
prior to the annual meeting of stockholders. Generally, such notice must be
received at the principal executive offices of the Company not less than 120
days prior to an annual meeting.
WARRANTS
As of November 30, 1996, the Company had outstanding 1,089,466 of the
Warrants, 669,514 of which are being offered hereby. Each Warrant will be
exercisable for one share of the Company's Common Stock, at an exercise price of
$0.75 per share. The Warrants may be exercised at any time until and including
March 31, 1999. Holders of the Warrants may pay all or a portion of the
exercise price of the Warrants
14
<PAGE>
by surrendering for retirement, at any time during which the Warrants may be
exercised, the Company's 8% Notes due March 31, 1999 (the "Notes") in a
principal amount equal to all or such portion of the exercise price. Accrued
interest on the Notes may not be directly applied to any portion of the Warrants
exercise price. The Warrants may be presented for exercise at the office of the
Warrant Agent, Chemical Trust Company of California, or at such other office or
agency as may be maintained by the Company for such purposes.
In addition, the Company had the following warrants outstanding:
warrants to purchase 50,000 shares of Common Stock at $0.75 per share,
expiring August 2002
warrants to purchase 138,833 shares of Common Stock at $1.50 per share,
expiring December 1997
warrants to purchase 10,000 shares of Common Stock at $4.00 per share,
expiring September 1997
warrants to purchase 2,330,000 shares of Common Stock at $0.75 per share,
expiring March 31, 1999
warrants to purchase 4,250,000 shares of Common Stock at $0.75 per share,
expiring March 31, 2003
The number of shares of Common Stock which may be purchased upon the
exercise of the Warrants is subject to adjustment if the Company (1) pays a
dividend on the Common Stock in shares of the Common Stock or (2) subdivides or
combines the outstanding Common Stock into a greater or smaller number of shares
of Common Stock. If one of the above-mentioned events occurs, the number of
shares purchasable by the holders of the Warrants would be adjusted so that the
holder would be entitled to the same number of shares after the event had the
Warrants been exercised immediately prior to the event.
The information provides a summary of the Warrants and is qualified by a
reference to the Warrant Agreement and the Warrant Certificates.
LIMITATION OF AND INDEMNIFICATION FOR LIABILITIES
The Company's Articles of Incorporation contain a provision that limits the
liability of the Company's directors for monetary damages for breach of
fiduciary duty as a director or officer to the fullest extent permitted by the
Colorado corporation statutes. Such limitation does not, however, affect the
liability of a director (i) for any breach of the director's duty of loyalty to
the Company or its shareholders, (ii) for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (iii) for any
unlawful distribution of the Company's assets; or (iv) for any transaction from
which the director derives an improper personal benefit. The effect of this
provision is to limit the rights of the Company and its shareholders (through
shareholders' derivative suits on behalf of the Company) to recover monetary
damages against a director for breach of the fiduciary duty of care as a
director (including breaches resulting from negligent or grossly negligent
behavior) except in the situations described in clauses (i) through (iv) above.
This provision does not limit or eliminate the rights of the Company or any
shareholder to seek non-monetary relief such as an injunction or rescission in
the event of a breach of a director's duty of care or to assert breach of a
director's duty of care as a defense to claims brought by a director.
In addition, the Company's bylaws provide for indemnification of directors
and officers to the extent authorized by the articles of incorporation, the
bylaws or by law against all expenses, liability and loss (including attorneys'
fees, judgments, fines and amounts paid in settlement) reasonably incurred in
connection with threatened, pending or completed actions, suits and proceedings.
Under the Colorado Business Corporation Act, such indemnification may be made
only if the director or officer acted in good faith in a manner which he or she
reasonably believed to be in or not opposed to the best interests of the Company
and, with regard to any criminal action or proceeding, had no reasonable cause
to believe that his or her action was unlawful. Further, such indemnification,
in the case of a proceeding brought by or in the right of the Company, may only
be for expenses actually and reasonably incurred in connection with the defense
or
15
<PAGE>
settlement of such proceeding. Additionally, if a director or officer is judged
to be liable for negligence or misconduct in a proceeding brought by or in the
right of the Company, he or she will be entitled only to such indemnity as the
court finds to be proper.
LEGAL MATTERS
Certain legal matters in connection with the Securities offered hereby have
been passed upon by Bader & Villanueva, P.C., 1660 Wynkoop Street, Suite 1100,
Denver, Colorado 80202.
EXPERTS
The consolidated financial statements and schedules of the Company included
in its Form 10-K for the fiscal year ended March 30, 1996, April 1, 1995, the
nine months ended April 2, 1994, and the three months ended July 3, 1993,
incorporated herein by reference, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated herein by reference upon the authority of said
firm as experts in accounting and auditing in giving said reports.
16
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the estimated expenses in connection with the offering of
the securities being registered:
Securities and Exchange Commission registration fee $ 374
Accounting fees and expenses 15,000 (1)
Legal fees and expenses 50,000 (2)
Miscellaneous expenses 4,000 (3)
-------
Total $64,374
-------
-------
(1) Includes $3,000 attributable solely to this Post-Effective Amendment No. 2
(2) Includes $5,000 attributable solely to this Post-Effective Amendment No. 2
(3) Includes $ 2,000 attributable solely to this Post-Effective Amendment No. 2
The foregoing items, except for the Securities and Exchange Commission
registration fee, are estimated. Marquest Medical Products, Inc. ("Marquest" or
the "Company"), will pay all of the above expenses. The Selling Security
Holders will pay all commissions, concessions or discounts to brokers and fees
and expenses of counsel or other advisors to the Selling Security Holders.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article VIII of the Company's Articles of Incorporation provides for the
elimination of personal monetary liabilities of directors of the Company for
breaches of their fiduciary duties as directors, except that, as provided by
Section 7-108-402 of the Colorado Business Corporation Act ("CBCA"), such
personal monetary liability of a director may not be eliminated with regard to
any breach of the duty of loyalty, failing to act in good faith, intentional
misconduct or knowing violation of law, any unlawful distribution of the
Company's assets or obtainment of an improper personal benefit. Such a
provision has no effect on the availability of equitable remedies, such as an
injunction or rescission, for breach of fiduciary duty.
Article VI of the Company's Bylaws provides for indemnification of directors
and officers of the Company to the extent permitted by the Company's Articles of
Incorporation, the Bylaws or by law. Article 109 of the CBCA provides for
indemnification of directors and officers from and against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement reasonably
incurred by them in connection with any civil, criminal, administrative or
investigative claim or proceeding (including civil actions brought as derivative
actions by or in the right of the corporation but only to the extent of expenses
reasonably incurred in defending or settling such action) in which they may
become involved by reason of being a director or officer of the corporation if
the director or officer acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interest of the corporation and, in
addition, in criminal actions, if he had no reasonable cause to believe his
conduct to be unlawful. If, in an action brought by or in the right of the
corporation, the director or officer is adjudged to be liable for negligence or
misconduct in the performance of his duty, he will only be entitled to such
indemnity as the court finds to be proper. Persons who are successful in
defense of any claim against them are entitled to indemnification as of right
against expenses actually and reasonably incurred in connection therewith. In
all other cases, indemnification shall be made (unless otherwise ordered by a
court) only if the board of directors, acting by a majority vote of a quorum of
disinterested directors, independent legal counsel or holders of a majority of
the shares entitled to vote determines that the applicable standard of conduct
has been met.
II-1
<PAGE>
The Company maintains directors and officers liability insurance which will
insure against liabilities that directors or officers of the Company may incur
in such capacities.
ITEM 16. EXHIBITS
The following exhibits are filed with or incorporated by reference in this
Registration Statement. Where such filing is made by incorporation by reference
to a previously filed registration statement or report, such registration
statement or report is identified in parentheses.
EXHIBIT NO. DESCRIPTION
----------- -----------
3(i)* Articles of Incorporation, as amended through August 25,
1994
4.1 * Form of Common Stock Certificate
4.2 * Form of $.75 Warrant Certificate
4.3 * Form of $.25 Warrant Certificate
4.4 Public Bond Issue Agreement (including form of note) dated
February 11, 1986 between Marquest and institutions named
therein (Exhibit 4 to Form 10-K dated March 29, 1986)
4.5 * Rights Agreement dated as of August 8, 1991 between Marquest
and Bank of America National Trust & Savings Association
5 * Opinion of Bader & Villanueva
10.1 Master Equipment Lease Agreement dated December 8, 1993
between Marquest and Financing for Science International,
Inc. (Exhibit 4(c) to Form 10-K dated April 2, 1994)
10.2 Term Loan Agreement dated June 30,1994 between Marquest
Medical Products, Inc. and Colorado National Bank (Exhibit
4(d) to Form 10-Q dated July 2, 1994)
10.3 Letter Agreement between Marquest Medical Products, Inc. and
Norman Dreyfuss dated August 1, 1989 (Exhibit 10(a) to Form
10-K dated March 31, 1990)
10.4 Letter Agreement between Marquest Medical Products, Inc. and
Robert J. McKinnon dated August 19, 1991 (Exhibit 10(b) to
Form 10-K dated March 28, 1992)
10.5 Marquest Medical Products, Inc. Incentive and Non-Qualified
Stock Option Plan effective November 14, 1987, as amended
(Exhibit 10(c) to Form 10-K dated April 1, 1989)
10.6 Consent Decree between Marquest Medical Products, Inc. and
the U.S. Food and Drug Administration ("FDA") dated October
1, 1992 (Exhibit 10(d) to Form 10-K dated March 28, 1992)
II-2
<PAGE>
10.7 Letter from FDA approving resumption of manufacturing and
distribution activities of Marquest Medical Products, Inc.
dated January 9, 1992 (Exhibit 10(e) to Form 10-K dated
March 28, 1992)
10.8 Management Agreement between Marquest Medical Products, Inc.
and Scherer Healthcare, Inc. dated June 1, 1994 (Exhibit
10(f) to Form 10-Q dated July 2, 1994)
10.9 Omnibus Agreement Between Scherer Healthcare, Inc. and
Marquest Medical Products, Inc. dated April 12, 1993
(Exhibit 3 to Form 8-K dated April 9, 1993)
10.10 Promissory Note dated January 13, 1995 between Marquest
Medical Products, Inc. and Financing for Science
International, Inc. (Exhibit 10.10 to From 10-K dated April
1, 1995)
10.11 Promissory Note dated January 13, 1995 between Marquest
Medical Products, Inc. and Financing for Science
International, Inc. (Exhibit 10.11 to Form 10-K dated April
1, 1995)
10.12 Promissory Note dated January 13, 1995 between Marquest
Medical Products, Inc. and Financing for Science
International, Inc. (Exhibit 10.12 to Form 10-K dated April
1, 1995)
13.1 * Annual Report on Form 10-K for Fiscal Year ended April 2,
1994
13.2 * Quarterly Report on Form 10-Q for Quarter ended July 2, 1994
13.3 * Quarterly Report on Form 10-Q for Quarter ended October 1,
1994
13.4 * Annual Report on Form 10-K for Fiscal Year ended April 1,
1995 (Annual Report
on Form 10-K for Fiscal Year ended April 1, 1995)
13.5 * Quarterly Report on Form 10-Q for Quarter ended July 1, 1995
(Quarterly Report
on Form 10-Q for Quarter ended July 1, 1995)
13.6 * Annual Report on Form 10-K for the Fiscal Year ended March
30, 1996
13.7 * Quarterly Report on Form 10-Q for the Quarter ended June 29,
1996
13.8 * Quarterly Report on Form 10-Q for the Quarter ended
September 28, 1996
23.1 Consent of Arthur Andersen LLP
23.2 * Consent of Bader & Villanueva (contained in Exhibit 5)
24 * Powers of Attorney
- -------------------
* Previously filed.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS
A. Rule 415 Offerings.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement and (iii) to include
any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement. PROVIDED, HOWEVER, that paragraphs
(A)(1)(i) and (A)(1)(ii) above do not apply if the information required to be
included is on Form S-3 or Form S-8, and the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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; and
(3) to remove from registration, by means of a post-effective amendment,
any of the securities being registered which remain unsold at the termination of
the offering.
B. Indemnification of Officers, Directors and Controlling Persons
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 provisions described under Item 15 above, or
otherwise, 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 Securities Act of 1933 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 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 of whether
or not such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudification of such
issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Post-Effective Amendment No. 2 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in Atlanta, Georgia, on the 12th day of December, 1996.
MARQUEST MEDICAL PRODUCTS, INC.
By /s/ Robert P. Scherer, Jr.
-----------------------------------------------
Robert P. Scherer, Jr.
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Post-
Effective Amendment No. 2 to the Registration Statement has been signed by the
following persons in the capacities indicated on the 12th day of December, 1996.
Signatures Title
---------- -----
/s/ Robert P. Scherer, Jr . Chairman, Chief Executive Officer and
- ---------------------------------- Director (Principal Executive Officer)
Robert P. Scherer, Jr.
/s/ Margaret Von der Schmidt Vice President - Finance
- ---------------------------------- (Principal Accounting and
Margaret Von der Schmidt Financial Officer)
/s/ Charles R. Atkins III Director
- ----------------------------------
Charles R. Atkins III
/s/ Stephen A. Lukas, Sr. Director
- ----------------------------------
Stephen A. Lukas, Sr.
/s/ Jack W. Payne Director
- ----------------------------------
Jack W. Payne
/s/ Kenneth H. Robertson Director
- ----------------------------------
Kenneth H. Robertson
/s/ Mack D. Tindal Director
- ----------------------------------
Mack D. Tindal
/s/ William J. Thompson Director
- ----------------------------------
William J. Thompson
II-6
<PAGE>
/s/ Jack L. York
- ----------------------------------
Jack L. York
II-7
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
3(i)* Articles of Incorporation, as amended
through August 25, 1994
4.1 * Form of Common Stock Certificate
4.2 * Form of $.75 Warrant Certificate
4.3 * Form of $.25 Warrant Certificate
4.4 Public Bond Issue Agreement (including form of note)
dated February 11, 1986 between Marquest and
institutions named therein (Exhibit 4 to Form 10-K
dated March 29, 1986)
4.5 * Rights Agreement dated as of August 8, 1991 between
Marquest and Bank of America National Trust & Savings
Association
5 * Opinion of Bader & Villanueva
10.1 Master Equipment Lease Agreement dated December 8, 1993
between Marquest and Financing for Science
International, Inc. (Exhibit 4(c) to Form 10-K dated
April 2, 1994)
10.2 Term Loan Agreement dated June 30,1994 between Marquest
Medical Products, Inc. and Colorado National Bank
(Exhibit 4(d) to Form 10-Q dated July 2, 1994)
10.3 Letter Agreement between Marquest Medical Products,
Inc. and Norman Dreyfuss dated August 1, 1989 (Exhibit
10(a) to Form 10-K dated March 31, 1990)
10.4 Letter Agreement between Marquest Medical Products,
Inc. and Robert J. McKinnon dated August 19, 1991
(Exhibit 10(b) to Form 10-K dated March 28, 1992)
10.5 Marquest Medical Products, Inc. Incentive and Non-
Qualified Stock Option Plan effective November 14,
1987, as amended (Exhibit 10(c) to Form 10-K dated
April 1, 1989)
10.6 Consent Decree between Marquest Medical Products, Inc.
and the U.S. Food and Drug Administration ("FDA") dated
October 1, 1992 (Exhibit 10(d) to Form
II-8
<PAGE>
10-K dated March 28, 1992)
10.7 Letter from FDA approving resumption of manufacturing
and distribution activities of Marquest Medical
Products, Inc. dated January 9, 1992 (Exhibit 10(e) to
Form 10-K dated March 28, 1992
10.8 Management Agreement between Marquest Medical Products,
Inc. and Scherer Healthcare, Inc. dated June 1, 1994
(Exhibit 10(f) to Form 10-Q dated July 2, 1994)
10.9 Omnibus Agreement Between Scherer Healthcare, Inc. and
Marquest Medical Products, Inc. dated April 12, 1993
(Exhibit 3 to Form 8-K dated April 9, 1993)
10.10 Promissory Note dated January 13, 1995 between Marquest
Medical Products, Inc. and Financing for Science
International, Inc. (Exhibit 10.10 to From 10-K dated
April 1, 1995)
10.11 Promissory Note dated January 13, 1995 between Marquest
Medical Products, Inc. and Financing for Science
International, Inc. (Exhibit 10.11 to Form 10-K dated
April 1, 1995)
10.12 Promissory Note dated January 13, 1995 between Marquest
Medical Products, Inc. and Financing for Science
International, Inc. (Exhibit 10.12 to Form 10-K dated
April 1, 1995)
13.1 * Annual Report on Form 10-K for Fiscal Year ended April
2, 1994
II-9
<PAGE>
13.2 * Quarterly Report on Form 10-Q for Quarter ended July 2,
1994
13.3 * Quarterly Report on Form 10-Q for Quarter ended October
1, 1994
13.4 * Annual Report on Form 10-K for Fiscal Year ended
April 1, 1995 (Annual Report on Form 10-K for Fiscal
Year ended April 1, 1995)
13.5 * Quarterly Report on Form 10-Q for Quarter ended July 1,
1995 (Quarterly Report on Form 10-Q for Quarter ended
July 1, 1995)
13.6 * Annual Report on Form 10-K for the Fiscal Year ended
March 30, 1996
13.7 * Quarterly Report on Form 10-Q for the Quarter ended
June 29, 1996
13.8 * Quarterly Report on Form 10-Q for the Quarter ended
September 28, 1996
23.1 Consent of Arthur Andersen LLP.
23.2 * Consent of Bader & Villaneuva (contained in Exhibit 5)
24 * Powers of Attorney
- ------------------------
* Previously filed.
II-10
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated May 6, 1996
included in Marquest Medical Products, Inc.'s Form 10-K for the year ended March
30, 1996, and to all references to our Firm included in this registration
statement.
Arthur Andersen LLP
Denver, Colorado
December 11, 1996
