EXHIBIT 2.2
SCHERER HEALTHCARE INDUCEMENT AGREEMENT
This AGREEMENT, dated this 14th day of March, 1997, by and between
SCHERER HEALTHCARE, INC., a Delaware corporation having its principal place of
business at 2589 Paces Ferry Road, Suite 300, Atlanta, Georgia ("Scherer
Healthcare"), VITAL SIGNS, INC., a New Jersey corporation having its principal
place of business at 20 Campus Road, Totowa, New Jersey ("VSI"), and MARQUEST
MEDICAL PRODUCTS, INC., a Colorado corporation having its principal place of
business at 11039 East Lansing Circle, Englewood, Colorado ( "Marquest"),
WITNESSETH THAT
WHEREAS, Scherer Healthcare is the principal shareholder of Marquest;
WHEREAS, contemporaneously with the execution of this Agreement,
Marquest and VSI have entered into an agreement of even date herewith pursuant
to which VSI will acquire Marquest by means of a cash merger (the "Merger
Agreement");
WHEREAS, Scherer Healthcare is the owner of warrants to purchase
through March 31, 1999 up to 1,530,000 shares of Marquest's common stock, no par
value (the "Marquest Common Stock"), at a purchase price of $.75 per share (the
"First ABG Warrants"), which First ABG Warrants were granted to Scherer
Healthcare pursuant to an omnibus agreement, dated April 12, 1993, between
Marquest and Scherer Healthcare (the "Omnibus Agreement");
WHEREAS, Scherer Healthcare is the owner of warrants to purchase
through March 31, 2003 up to 4,250,000 shares of Marquest Common Stock at a
purchase price of $.75 per share (the "Second ABG Warrants"), which Second ABG
Warrants were granted to Scherer Healthcare pursuant to the Omnibus Agreement;
WHEREAS, Scherer Healthcare is the owner of warrants to purchase
through March 31, 1999 up to 800,000 shares of Marquest Common Stock at an
exercise price of $.75 per share (the "Current Warrants"), which Current
Warrants were granted to Scherer Healthcare pursuant to a warrant agreement
dated April 12, 1993;
WHEREAS, Scherer Healthcare has indicated that it will not vote its
shares of Marquest Common Stock in favor of the Merger Agreement and the
transactions contemplated thereby unless the shareholders of Scherer Healthcare
authorize Scherer Healthcare to take such action and to effect the transactions
contemplated hereby (such authorization being hereinafter referred to as the
"Scherer Shareholder Approval");
WHEREAS, pursuant to the Omnibus Agreement, Scherer Healthcare
purchased from Marquest the "ABG Purchased Assets" (as defined in the Omnibus
Agreement) and then agreed to lease and license the ABG Purchased Assets back to
Marquest pursuant to an "Equipment Lease" (as defined in the Omnibus Agreement)
and a "License of Intangible Property" (as defined in the Omnibus Agreement);
WHEREAS, pursuant to the Omnibus Agreement, Scherer Healthcare has
granted to Marquest a "Repurchase Option" (as defined in the Merger Agreement)
that grants to Marquest the right to repurchase the ABG Purchased Assets and
"Improvements" (as defined in the License of Intangible Property) from Scherer
Healthcare in exchange for a cash exercise price (the "Exercise Price");
WHEREAS, Scherer Healthcare desires to sell its rights in the ABG
Purchased Assets and the Improvements in exchange for a payment equal to the
Exercise Price;
WHEREAS, upon consummation of the closing described in the Merger
Agreement, VSI is willing to purchase the ABG Purchased Assets and the
Improvements from Scherer Healthcare, subject to the Equipment Lease, the
License of Intellectual Property and the Repurchase Option, for a purchase price
equal to the Exercise Price and in accordance with the terms set forth herein,
provided that Scherer Healthcare agrees to execute the covenant against
competition described herein;
WHEREAS, Scherer Healthcare is prepared to execute such covenant
against competition, provided that it receives suitable compensation therefor;
and
WHEREAS, VSI will pay such compensation provided for herein in
accordance with the terms set forth herein, provided that Scherer Healthcare
agrees to the terms set forth herein,
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, the parties hereto hereby agree as follows:
1. Certain Definitions. All capitalized terms set forth herein that
are not defined herein shall have the definitions set forth in the Merger
Agreement.
2. Scherer Healthcare's Representations. Scherer Healthcare hereby
warrants and represents to VSI as follows:
2.1 Scherer Healthcare is a Delaware Corporation. Under Delaware law
and Scherer Healthcare's certificate of incorporation and by-laws, the
affirmative vote of a majority of Scherer Healthcare's outstanding shares of
Common Stock will be sufficient in order for the shareholders of Scherer
Healthcare to give the Scherer Shareholder Approval.
2.2 The Board of Directors of Scherer Healthcare has approved
resolutions, certified copies of which shall promptly be provided to VSI, (i)
authorizing Scherer Healthcare to vote Scherer Healthcare's shares of Marquest
Common Stock in favor of the Merger Agreement, subject to the receipt by the
Board of Directors of Marquest of the opinion of Hanifen, Imhoff Inc. as to the
fairness of the transactions contemplated by the Merger Agreement, from a
financial point of view, to the stockholders of record of Marquest (the
"Marquest Opinion") and the receipt by the Board of Directors of Scherer
Healthcare of the opinion of Summit Investment Corporation as to the fairness of
the transactions contemplated by the Merger Agreement and the transactions
contemplated hereby, from a financial point of view, to the stockholders of
record of Scherer Healthcare (the "Scherer Healthcare Opinion"), in the case of
the Marquest Opinion as of the date hereof and in the case of the Scherer
Healthcare Opinion as of the date hereof and as of the date of the meeting at
which Scherer Healthcare's shareholders will vote on such matters, (ii)
recommending that Scherer Healthcare's shareholders vote in favor of the Merger
Agreement and the transactions contemplated hereby and (iii) submitting such
matters to Scherer Healthcare's shareholders for their approval.
2.3 The execution, delivery and performance of this Agreement by
Scherer Healthcare (A) are within the legal capacity and power of Scherer
Healthcare; (B) have been duly authorized by all requisite corporate action on
the part of Scherer Healthcare, other than shareholder approval; and (C) require
the approval or consent of, or filing with, no persons, entities or agencies
other than (i) the Scherer Shareholder Approval, (ii) approval of certain
transactions contemplated by this Agreement and the Merger Agreement pursuant to
the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and (iii) any filings
required to effect the transfer of intangible assets pursuant to this Agreement.
2.4 Scherer Healthcare has reviewed the warranties and representations
made by Marquest to VSI in the Merger Agreement. Scherer Healthcare has no
actual knowledge that any of such warranties and representations are inaccurate
in any material respect. Scherer Healthcare shall promptly notify VSI in writing
(in the manner in which Marquest is required to notify VSI pursuant to the
Merger Agreement) if, between the date hereof and the earlier of the Effective
Time of the Merger and the date on which the Merger Agreement terminates,
Scherer Healthcare discovers that any of its representations and warranties
herein are inaccurate in any material respect. It is understood that (i) this
Section 2.4 shall not survive the consummation of the Merger, (ii) Scherer
Healthcare shall not be liable for monetary damages in the event that this
Section 2.4 is inaccurate in any respect and (iii) VSI's sole right in the event
that it determines that this Section 2.4 is materially inaccurate either at the
time that this Agreement is executed or as of the time of the closings described
herein shall be for VSI to assert its rights under the Merger Agreement to
terminate the Merger Agreement (in which case the transactions contemplated
hereby will not be consummated). It is further understood that the "actual
knowledge of Scherer Healthcare" shall be deemed to be the actual knowledge of
only Robert P. Scherer, Jr. and Amy Murphy.
2.5 Scherer Healthcare owns 4,778,941 shares of Marquest Common Stock
free and clear of any security interests, consignments, liens, judgments,
encumbrances, restrictions, or claims of any kind and 2,432,251 shares of
Marquest Common Stock which have been pledged by Scherer Healthcare pursuant to
the terms of the Amended and Restated Non-Negotiable Note dated as of January
17, 1997 from Scherer Healthcare to Scherer Capital Company L.L.C. and the
related Amended and Restated Stock Pledge Agreement (the "Pledge Agreements"),
which Pledge Agreements have been assigned by Scherer Capital Company L.L.C. to
the four adult children of Robert P. Scherer, Jr.
2.6 The, execution, delivery and performance of this Agreement by
Scherer Healthcare neither violates nor constitutes a default under, nor creates
a lien or breach under, the terms of the certificate of incorporation and
by-laws of Scherer Healthcare or of any material agreement, document or
instrument binding upon Scherer Healthcare. This Agreement is a legal, valid and
binding obligation of Scherer Healthcare enforceable against Scherer Healthcare
in accordance with its terms, except insofar as the enforcement thereof may be
limited by bankruptcy, insolvency, moratorium or similar laws affecting the
enforcement of creditors' rights generally and subject to equitable principles
limiting the availability of equitable remedies.
2.7 If the Closing and the Effective Time of the Merger were to occur
on the date hereof and, immediately after the Effective Time of the Merger, the
Repurchase Option were exercised, the aggregate amount of the Exercise Price
payable by such designee upon such exercise would be $5,535,000.
2.8 Scherer Healthcare has all of the right, title and interest in and
to all of the ABG Purchased Assets and Improvements described in Schedule 2.8
hereof (the "Scheduled Assets") that it acquired from Marquest upon Scherer's
original acquisition of such assets pursuant to the Omnibus Agreement. Scherer
Healthcare has not granted to any third-party any security interest, pledge or
encumbrance with respect to any of the Scheduled Assets. Scherer Healthcare does
not have any ownership interest in any ABG Purchased Assets or any Improvements
other than the Scheduled Assets.
2.9 Scherer Healthcare has extended the exercise period of the
Repurchase Option through June 15, 1999 on the terms set forth in the Omnibus
Agreement as originally executed by the parties to the Omnibus Agreement.
2.10 The factual representations regarding Scherer Healthcare and its
equity interests in Marquest set forth in the "WHEREAS" clauses herein are
accurate in all material respects.
2.11 There are 4,314,223 shares of the Common Stock, par value $.01
per share, of Scherer Healthcare (the "Scherer Healthcare Common Stock")
outstanding on the date hereof. Scherer Healthcare is obligated to issue a total
of an additional 218,056 shares of Scherer Healthcare Common Stock pursuant to
outstanding exercisable stock options, warrants, convertible securities and
other contractual arrangements entitling third-parties to acquire shares of
Scherer Healthcare Common Stock. There are no classes of capital stock of
Scherer Healthcare entitled to vote with respect to the Scherer Shareholder
Approval other than the Scherer Healthcare Common Stock.
3. Scherer Healthcare's Covenants. Scherer Healthcare hereby covenants
and agrees with VSI as follows:
3.1 Scherer Healthcare will not exercise the first ABG Warrants, the
Second ABG Warrants or the Current Warrants at any time on or before the earlier
of the Effective Time of the Merger or the date of the termination of the Merger
Agreement.
3.2 Intentionally omitted.
3.3 Promptly after this Agreement is executed, Scherer Healthcare will
cooperate with VSI in preparing a proxy statement (describing a proposal to
grant the Scherer Shareholder Approval)) for filing with the Securities and
Exchange Commission (the "SEC") and ultimately for mailing to Scherer
Healthcare's shareholders (the "Proxy Statement"). Scherer Healthcare shall not
file the Proxy Statement preliminarily or in final form unless and until VSI
consents to such filings. VSI shall not unreasonably withhold or delay any such
consent. Scherer Healthcare represents and warrants to VSI that the Proxy
Statement will comply in all material respects with the Securities Exchange Act
of 1934 and the rules and regulations promulgated thereunder, that the Proxy
Statement will not contain any untrue statements of material fact regarding
Scherer Healthcare and will not omit to state any material fact regarding
Scherer Healthcare required to be stated therein or necessary to make the
statements therein not misleading. Scherer Healthcare will promptly advise VSI
in writing if at any time prior to the Effective Time of the Merger it shall
obtain knowledge of any facts that might reasonably be expected to make it
necessary or appropriate to amend or supplement the Proxy Statement in order to
make the statements contained or incorporated by reference therein not
misleading or to comply with applicable law. After VSI consents to the mailing
of the Proxy Statement and all necessary SEC filing requirements have been
satisfied, Scherer Healthcare shall mail the Proxy Statement to its shareholders
in accordance with all applicable federal and state securities laws and, subject
to the exercise by the members of Scherer Healthcare's Board of Directors of
their fiduciary duties, shall use its reasonable best efforts to solicit proxies
in favor of the Scherer Shareholder Approval.
3.4 Scherer Healthcare shall call a special meeting of its
shareholders (the "Scherer Healthcare Meeting"), to be held as soon as
practicable after the Proxy Statement is mailed to Scherer Healthcare's
shareholders, for the purpose of seeking the Scherer Shareholder Approval from
the shareholders of Scherer Healthcare. In connection with the Scherer
Healthcare Meeting, the members of Scherer Healthcare's Board of Directors shall
recommend that Scherer Healthcare's shareholders grant the Scherer Shareholder
Approval, subject to the exercise by the members of Scherer Healthcare's Board
of Directors of their fiduciary duties.
3.5 Prior to the Effective Time of the Merger or the date on which the
Merger Agreement is terminated, Scherer Healthcare will not sell, dispose,
pledge, encumber or otherwise transfer any shares of Marquest Common Stock;
provided, however, that this Section 3.5 shall not preclude Scherer Healthcare
from pledging or transferring any of its shares of Marquest Common Stock (i)
pursuant to the requirements of the Pledge Agreements or (ii) to a transferee (a
"Scherer Permitted Transferee") if, prior to such pledge or transfer, the
Scherer Permitted Transferee executes an agreement, in form and substance
reasonably satisfactory to VSI, to vote such shares in favor of the Merger and
Merger Agreement.
3.6 If Scherer Healthcare's shareholders approve the Merger Agreement
and the transactions contemplated thereby and receive an updated Scherer Opinion
as of the date of the Scherer Healthcare Meeting, Scherer Healthcare shall vote
all of the shares of Marquest Common Stock that it owns in favor of the Merger
and the Merger Agreement..
3.7 Intentionally omitted.
3.8 Until the earlier of the Effective Time of the Merger and the
termination of the Merger Agreement, Scherer Healthcare shall, assuming that it
has an ability to pay, honor all of its obligations under the Pledge Agreements.
4. Sale of the Scheduled Assets.
4.1 Marquest hereby consents to the sale of the Scheduled Assets and
the assignment of the Equipment Lease and License of Intellectual Property by
Scherer Healthcare pursuant to this Section 4 and acknowledges that if it
exercises the Repurchase Option subsequent to such sale, Marquest's rights shall
be to purchase the applicable assets from the purchaser of the Scheduled Assets
hereunder. Scherer Healthcare acknowledges that upon consummation of the closing
described in Section 4.3 hereof, Scherer Healthcare shall have no right to
acquire shares of Marquest's Common Stock pursuant to Section 2.05 of the
Omnibus Agreement.
4.2 During the week immediately prior to the Closing under the Merger
Agreement, Scherer Healthcare and VSI shall cooperate in calculating the
Exercise Price.
4.3 Provided that the conditions set forth in Section 4.4 hereof have
been satisfied, then immediately after Scherer Healthcare and VSI determine that
the Merger is effective under Colorado law, Scherer Healthcare and VSI shall
conduct a closing (the "Scheduled Assets Closing") at the same location as the
location of the Closing under the Merger Agreement. Provided that the conditions
set forth in Section 4.4 hereof have been satisfied, at the Scheduled Assets
Closing:
4.3.1 VSI or a designee of VSI (for purposes hereof, either such
entity being referred to herein as the "Purchaser") shall purchase from Scherer
Healthcare, and Scherer Healthcare shall sell to the Purchaser, the Scheduled
Assets, at a price equal to the Exercise Price as of the date of the Scheduled
Assets Closing (such price being hereinafter referred to as the "Closing
Exercise Price") and in accordance with the terms set forth herein. Scherer
Healthcare shall assign to the Purchaser all of Scherer Healthcare's rights as
the lessor under the Equipment Lease and as the licensor under the License of
Intangible Property, and VSI shall assume all of Scherer Healthcare's
obligations as lessor under the Equipment Lease and licensor under the License
of Intangible Property, all pursuant to the terms of an assignment and
assumption agreement in form and substance reasonably satisfactory to VSI and
Scherer Healthcare.
4.3.2 Payment of the Closing Exercise Price shall be by means of a
certified or bank cashier's check payable to Scherer Healthcare.
4.3.3 Scherer Healthcare will transfer all of the Scheduled Assets to
the Purchaser by delivering to the Purchaser all such assets and by evidencing
such conveyance with a bill of sale and general assignment in the form of the
bill of sale and general assignment dated June 15, 1993 and delivered by
Marquest pursuant to the Omnibus Agreement and such other forms of conveyance as
either would be required by Section 3 of the Omnibus Agreement if Marquest were
exercising the Repurchase Agreement or as are reasonably requested by the
Purchaser to confer upon the Purchaser the same title to the Scheduled Assets as
Scherer Healthcare holds immediately prior to the Scheduled Assets Closing.
Scherer Healthcare will transfer such assets to such entity free and clear of
any security interests, pledges, encumbrances or restrictions that Scherer
Healthcare may have created. Thereafter, Scherer Healthcare shall reasonably
cooperate with the Purchaser in furnishing to the Purchaser such further
instruments as the Purchaser shall reasonably request to affirm the Purchaser's
ownership of such assets free and clear of all such security interests, pledges,
encumbrances and restrictions. SCHERER HEALTHCARE MAKES NO REPRESENTATIONS,
PROMISES, STATEMENTS, OR WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE
MERCHANTABILITY, SUITABILITY, OR FITNESS FOR ANY PURPOSE OF THE SCHEDULED ASSETS
AND MAKES NO REPRESENTATION THAT SCHEDULED ASSETS ARE IN COMPLIANCE WITH ANY
APPLICABLE LAW, ORDINANCE OR OTHER GOVERNMENTAL REGULATION. VSI agrees on behalf
of itself, and on behalf of the Purchaser if VSI is not the Purchaser, that on
and after the date of the Scheduled Assets Closing, Scherer Healthcare shall not
be liable to VSI, the Purchaser or Marquest for any loss, claim, demand,
liability, cost, damage, or expense of any kind, caused or alleged to be caused,
directly or indirectly, by the condition of the Scheduled Assets, or by any
inadequacy thereof for any purpose, or by any defects therein or in the use or
maintenance thereof, or by any damage whatsoever and whosoever caused other than
damages resulting from Scherer Healthcare's failure to transfer its ownership
interest in the Scheduled Assets in the manner described herein. VSI agrees on
behalf of itself, and on behalf of the Purchaser if VSI is not the Purchaser,
that its obligations hereunder shall not in any way be affected by any defect in
the condition or failure of performance of the Scheduled Assets. IN NO EVENT
SHALL SCHERER HEALTHCARE HAVE ANY LIABILITY ON AND AFTER THE DATE OF THE
SCHEDULED ASSETS CLOSING FOR, NOR SHALL VSI, PURCHASER OR MARQUEST HAVE ANY
REMEDY ON AND AFTER THE DATE OF THE SCHEDULED ASSETS CLOSING AGAINST SCHERER
HEALTHCARE FOR, ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, ANY LOSS OF PROFITS OR
SAVINGS, LOSS OF USE, OR ANY OTHER COMMERCIAL LOSS OF WHATEVER NATURE ARISING
FROM THE SALE OF THE SCHEDULED ASSETS.
4.3.4 Scherer Healthcare shall execute and deliver to the Purchaser a
covenant against competition in the form and substance of the covenant against
competition annexed hereto as Exhibit A.
4.3.5 In consideration for Scherer Healthcare's executing such
covenant against competition, VSI (or, if VSI is not the Purchaser, VSI shall
cause the Purchaser to) deliver to Scherer Healthcare its certified check or a
bank cashier's check in an amount equal to the amount by which five million
eight hundred and sixty thousand dollars ($5,860,000) exceeds the Closing
Exercise Price.
4.3.6 At the Scheduled Assets Closing, (i) Scherer Healthcare shall
deliver to Marquest a release, in form and substance reasonably satisfactory to
VSI and Marquest, pursuant to which Scherer shall release Marquest from all of
its obligations to provide indemnification to Scherer Healthcare under the
Equipment Lease and the License of Intangible Property and from all of
Marquest's other obligations to Scherer Healthcare arising pursuant to the
Omnibus Agreement and the agreements executed pursuant thereto and (ii) VSI
shall deliver to Scherer Healthcare an agreement, in form and substance
reasonably satisfactory to Scherer Healthcare, pursuant to which VSI shall
provide to Scherer Healthcare the indemnification provided (prior to such
release) to Scherer Healthcare under Sections 12, 13 and 14 of the License of
Intangible Property and Section 5 of the Equipment Lease; provided, however,
that the agreement furnished by VSI to Scherer Healthcare pursuant to this
Section 4.3.6 shall expressly state that the aggregate liability that VSI and
its subsidiaries (including Marquest after the Scheduled Assets Closing) shall
have to Scherer pursuant to such agreement shall not exceed two million dollars
($2,000,000) with respect to matters unrelated to the Terumo litigation
referenced in the Disclosure Letter and shall not exceed four million dollars
($4,000,000) with respect to matters related to the Terumo litigation referenced
in the Disclosure Letter, less in each such case (i.e., the $2,000,000
limitation and the $4,000,000 limitation) the attorneys' and experts' fees and
disbursements incurred by VSI and its subsidiaries subsequent to the Scheduled
Assets Closing reasonably allocable to matters undertaken on behalf of Scherer
Healthcare. It is understood that there will be no allocation of such fees and
expenses to Scherer Healthcare with respect to a matter if Scherer Healthcare is
not a party to such matter.
4.4 Notwithstanding any provision herein to the contrary, the
obligations of the parties hereto to consummate the Scheduled Assets Closing are
conditioned upon satisfaction of the following conditions:
4.4.1 The Merger shall have been consummated and Scherer Healthcare
and VSI shall have determined that the Merger is effective under Colorado law.
4.4.2 All approvals required by law in order for Scherer Healthcare
and VSI to consummate the Scheduled Assets Closing (the "Sale Approvals") shall
have been obtained. VSI and Scherer Healthcare shall use their respective best
efforts to obtain all such Sale Approvals.
4.4.3 Each of Scherer Healthcare's representations set forth in this
Agreement shall have been true in all material respects when made and (with the
exception of the representation set forth in Section 2.7 hereof) shall be true
in all material respects as of the date of the Scheduled Assets Closing.
4.4.4 VSI shall not have discovered that Scherer Healthcare shall have
taken any action or omitted to take any action between the date hereof and the
Scheduled Assets Closing which will materially adversely affect the title in and
to the Scheduled Assets which the Purchaser will acquire upon consummation of
the Scheduled Assets Closing.
5. Cashless Exercise of Warrants. If the Merger is consummated, then
immediately after the Effective Time of the Merger, (i) Scherer Healthcare shall
tender the Current Warrants, the First ABG Warrants and the Second ABG Warrants
to VSI or the Exchange Agent and shall deliver to VSI or the Exchange Agent any
letter of transmittal reasonably requested by VSI and (ii) VSI shall, upon
receipt of such tender, deliver or cause the Exchange Agent to deliver to
Scherer Healthcare a check in an amount equal to the "Excess Amount" (as defined
herein) multiplied by the number of shares of Marquest Common Stock covered by
the First ABG Warrants, Second ABG Warrants and Current Warrants so tendered.
For purposes of this Agreement, the term "Excess Amount" shall mean the amount
by which the "Purchase Price" (as such term is defined in the Merger Agreement)
exceeds seventy-five cents ($.75). Thereafter, Scherer Healthcare shall have no
rights with respect to the First ABG Warrants, Second ABG Warrants or Current
Warrants other than to receive payment therefor in accordance with this Section
5.
6. VSI's Representations. VSI hereby warrants and represents as
follows:
6.1 The execution, delivery and performance of this Agreement by VSI
(A) are within the legal capacity and power of VSI; (B) have been duly
authorized by all requisite corporate action on the part of VSI; and (C) require
the approval or consent of, or filing with, no persons, entities or agencies
other than (i) approval of certain transactions contemplated by this Agreement
and the Merger Agreement pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act of 1986 and approvals of the type required by VSI to consummate
the Merger Agreement and (ii) any filings required to effect the transfer of
intangible assets pursuant to this Agreement.
6.2 The, execution, delivery and performance of this Agreement by VSI
neither violates nor constitutes a default under, nor creates a lien or breach
under, the terms of the certificate of incorporation and by-laws of VSI or,
subject to the receipt of any necessary approvals, of any material agreement,
document or instrument binding upon VSI. This Agreement is, and the
indemnification agreement referenced in Section 4.3.6 will be, a legal, valid
and binding obligation of VSI enforceable against VSI in accordance with its
terms, except insofar as the enforcement thereof may be limited by bankruptcy,
insolvency, moratorium or similar laws affecting the enforcement of creditors'
rights generally and subject to equitable principles limiting the availability
of equitable remedies.
7. VSI's Covenants With Respect to the Proxy Statement. Promptly after
this Agreement is executed, VSI will cooperate with Scherer Healthcare in
preparing the Proxy Statement. VSI shall not unreasonably withhold or delay any
consent requested by Scherer Healthcare pursuant to Section 3.3 hereof. VSI
represents and warrants to Scherer Healthcare that the information to be
supplied by VSI to Scherer Healthcare for the Proxy Statement with respect to
VSI (excluding Marquest) will not contain any untrue statements of material fact
and will not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. VSI will promptly
advise Scherer Healthcare in writing if at any time prior to the Effective Time
of the Merger it shall obtain knowledge of any facts that might reasonably be
expected to make it necessary or appropriate to amend or supplement the Proxy
Statement in order to make the statements contained or incorporated by reference
therein not misleading or to comply with applicable law.
8. Repurchase Option. Scherer and Marquest hereby confirm to VSI that
the Repurchase Option has been extended until June 15, 1999 upon the terms
originally set forth in the Omnibus Agreement.
9. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand or when mailed by registered or certified
mail, postage prepaid, or when given by telex or facsimile transmission
(promptly confirmed in writing), as follows:
(a) If to Scherer Healthcare, to:
Scherer Healthcare, Inc.
2589 Paces Ferry Road
Suite 300
Atlanta, Georgia 30339
Telephone: 770-333-0066
Telecopy: 770-333-0068
with a copy to:
David M. Calhoun, Esq.
Long Aldridge Norman LLP
Suite 5300
One Peachtree Center
303 Peachtree Street
Atlanta, Georgia 30308
Telephone: 404-527-4947
Telecopy: 404-527-4198
or to such other persons as Scherer Healthcare shall designate in writing, such
writing to be delivered to VSI in the manner provided in this Section 9;
(b) If to VSI, to:
Vital Signs, Inc.
20 Campus Road
Totowa, New Jersey 07512
Attn: Mr. Anthony J. Dimun
Telephone: 201-790-1330, ext. 371
Telecopy: 201-790-3842
with a copy to:
Jay Sturm, Esq.
General Counsel
Vital Signs, Inc.
20 Campus Road
Totowa, New Jersey 07512
Telephone: 201-790-1330, ext. 372
Telecopy: 201-790-3842
and with a copy to:
Peter H. Ehrenberg, Esq.
Lowenstein, Sandler, Kohl,
Fisher & Boylan, P.C.
65 Livingston Avenue
Roseland, New Jersey 07068
Telephone: 201-992-8700
Telecopy: 201-992-5820
or to such other persons as VSI shall designate in writing, such writing to be
delivered to Scherer Healthcare in the manner provided in this Section 9.
10. Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties
hereto.
11. Governing Law. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with the laws of
the State of Delaware.
12. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13. Headings and References. The headings of the Sections of this
Agreement are inserted for convenience of reference only and shall not
constitute a part hereof. All references herein to Sections are to sections of
this Agreement, unless otherwise indicated.
14. Interpretation. The parties hereto do not intend for this
Agreement to be construed against the party that drafted this Agreement merely
by virtue of the fact that such party drafted this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
SCHERER HEALTHCARE, INC.
By: /s/ Robert P. Scherer, Jr.
Chief Executive Officer
VITAL SIGNS, INC.
By: /s/ Anthony J. Dimun
Anthony J. Dimun,
Executive Vice President
MARQUEST MEDICAL PRODUCTS, INC.
By: /s/ William Thompson
President