As filed with the Securities and Exchange Commission on September 29, 1997
Registration No. 333-31241
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE QUIGLEY CORPORATION
(Exact name of Registrant as specified in its charter)
Nevada 5149 23-2577138
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or organization) Code Number) Identification Number)
The Landmark Building
10 South Clinton Street
Doylestown, PA 18901
(215) 345-0919
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(Address, including zip code, and telephone
number, including area code, of Registrant's
principal executive offices)
Guy Quigley
President and Chief Executive Officer
The Quigley Corporation
10 South Clinton Street
P.O. Box 1349
Doylestown, PA 18901
(215) 345-0919
(Name, address and telephone number of agent for service of process)
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Copies to:
Robert H. Friedman, Esq.
Olshan Grundman Frome & Rosenzweig LLP
505 Park Avenue
New York, New York 10022
(212) 753-7200
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Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
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If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
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 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's By-laws authorize indemnification of directors and
officers as follows:
ARTICLE V - INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES
AND AGENTS
Section 1. The corporation shall indemnify any person who was or is a
party or threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. No officer, director or shareholder may become surety on
behalf of the corporation for any of its obligations under any circumstances
whatsoever.
See Item 9(e) below for information regarding the position of the
Commission with respect to the effect of any indemnification for liabilities
arising under the Securities Act of 1933, as amended.
Section 78.751 of the Nevada General Corporation Law provides as
follows:
"1. A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, except an action by or in the right of
the corporation, by reason of the fact that he is or was a director,
officer, employee or agent
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of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of
NOLO CONTENDERE or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal
action or proceeding, he had reasonable cause to believe that his
conduct was unlawful.
2. A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him
in connection with the defense or settlement of the action or suit if
he acted in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the corporation.
Indemnification may not be made for any claim, issue or matter as to
which such a person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable
to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the
action or suit was brought or other court of competent jurisdiction
determines upon application that in view of all the circumstances of
the case, the person is fairly and reasonably entitled to indemnity for
such expenses as the court deems proper.
3. To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections 1
and 2, or in defense of any claim, issue or matter therein, he must be
indemnified by the corporation against expenses, including attorneys'
fees actually and reasonably incurred by him in connection with the
defense.
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4. Any indemnification under subsections 1 and 2, unless
ordered by a court or advanced pursuant to subsection 5, must be made
by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee
or agent is proper in the circumstances. The determination must be
made:
(a) By the shareholders;
(b) By the board of directors by majority vote of a
quorum consisting of directors who were not parties to the
act, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who
were not parties to the act, suit or proceeding so orders, by
independent legal counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties
to the act, suit or proceeding cannot be obtained, by independent legal
counsel in a written opinion.
5. The articles of incorporation, the bylaws or an agreement
made by the corporation may provide that the expenses of officers and
directors incurred in defending a civil or criminal action, suit or
proceeding must be paid by the corporation as they are incurred and in
advance of the final disposition of the action, suit or proceeding,
upon receipt of an undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined by a court
of competent jurisdiction that he is not entitled to be indemnified by
the corporation. The provisions of this subsection do not affect any
rights to advancement of expenses to which corporate personnel other
than directors or officers may be entitled under any contract or
otherwise by law.
6. The indemnification and advancement of expenses authorized
in or ordered by a court pursuant to this section:
(a) Does not exclude any other rights to which a person
seeking indemnification or advancement of expenses may be entitled
under the articles of incorporation or any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, for either an
action in his official capacity or an action in other capacity while
holding his office, except that indemnification, unless ordered by a
court pursuant to subsection 2 or for the advancement of expenses made
pursuant to subsection 5, may not be made to or on behalf of any
director or officer if a final adjudication establishes that his acts
or omissions involved intentional misconduct, fraud or a knowing
violation of the law and was material to the cause of action.
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(b) Continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the heirs,
executors and administrators of such a person.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses which will be paid
by the Company in connection with the securities being registered. With the
exception of the SEC registration fee, all amounts shown are estimates.
SEC registration fee......................................... $4,998.42
Legal fees and expenses (including Blue
Sky)......................................................... 25,000.00
Accounting Fees and Expenses................................. 5,000.00
Miscellaneous................................................ 501.58
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Total...............................................$ 35,500.00
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ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
During the past three years, the following securities were sold by the
Company without registration under the Securities Act. Except as otherwise
indicted, the securities were sold by the Company in reliance upon the exemption
provided by Section 4(2) of the Securities Act, among others, on the basis that
such transactions did not involve any public offering and the purchasers were
sophisticated with access to the kind of information registration would provide.
In December 1995, the Company initiated a 1 for 10 reverse stock split
and changed the par value of its stock to $.001 per common share. In January
1997, the Company initiated a 2 for 1 stock split and changed the par value of
its Common Stock to $.0005 per common share. All shares referred to below refer
to post split amounts.
(a) On August 24, 1994, the Company issued 72,000 restricted shares to
Dr. Robert Pollack in total repayment of a debt of $18,000. The debt was
incurred over a period of fifteen months and included $820 worth of interest.
(b) On August 24, 1994, 1,134 restricted shares were issued to Robert
Moore in payment of a debt owed to him of $1,000 for the installation of fixed
assets.
(c) On August 24, 1994, 50,000 restricted shares were issued to
Smith-Felver as payment for advertising services rendered to the Company.
(d) On September 26, 1994, the Company issued 20,000 restricted shares
of Common Stock to Dr. John Godfrey in satisfaction of $8,750 owed by the
Company to Dr. Godfrey. The amounts were owed for services rendered to the
Corporation.
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(e) On September 29, 1994, the Company issued 48,000 restricted shares
to Dr. and Mrs. John Godfrey in full repayment of a loan owing to them in the
amount of $12,000.
(f) On September 30, 1994, Ms. Lydia Pollack purchased 10,668
restricted shares of the Company for $4,000 in cash.
(g) During the period October 1, 1994 through September 30, 1995,
various individuals purchased an aggregate of 334,667 shares of restricted
Common Stock from the Company as follows:
NAME NUMBER OF SHARES PRICE
- ---- ---------------- -----
C. Witmer 10,000 $5,000
V. Taylor 2,000 1,000
J. Gennello 8,000 4,000
G. Eichhorn 6,000 3,000
S. Carey 3,000 1,500
K. McCullian 3,000 1,500
D. Wyeth 400 200
M. McCullian 10,000 5,000
T. Burke 4,000 2,000
D. Palmer 600 300
J. Krow 5,000 2,500
J. Hanson 4,000 2,000
G. Agular 3,000 1,500
C. Baldwin 6,000 3,000
E. Hesselson 2,000 1,000
E. Geyer 6,667 4,000
J. Gibbons 2,000 1,500
S. Macknin 5,000 2,500
J. Macknin 5,000 2,500
G. Snell 1,600 1,000
J. McIlhinney 4,000 2,000
M. Hanson 7,000 3,500
L. Snyder 1,000 500
R. Turner 206,000 181,000
P. Kaplan 20,000 10,000
R. Pollack 9,400 4,050
(h) During the period October 1, 1994 through September 30, 1995,
various individuals were issued an aggregate of 176,342 restricted shares in
return for goods and services rendered by the following individuals and
entities: Dr. Riley (70,000 shares), S. Novick (4,000 shares), J. Godfrey
(10,938 shares), M. Robbins (8,200 shares), R. Pollack (25,000 shares),
Smith-Felver (20,000 shares), Lenape Valley (6,000 shares), M. Moreni (4,000
shares), S. Marcolini (10,000 shares), C. Bistrack (1,700 shares), T. MacAniff
(12,000 shares), and Joel, Inc. (4,504 shares). The shares were issued in
satisfaction of $110,214 owed by the Company to such individuals and entities.
(i) In February 1995, the Company sold an aggregate of 319,400 shares
of Common Stock to accredited investors in a private
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placement. The Company total consideration of $199,625 from the sale and paid
commissions aggregating $13,750.
(j) On December 1, 1995, the Company entered into a marketing agreement
with Pacific Rim Pharmaceuticals for developing a market for the Company's
products in the Far East. Pacific Rim Pharmaceuticals was issued 300,000 options
to purchase Common Stock at a per share exercise price of $ .50.
(k) On December 1, 1995, William Reilly and Thomas MacAniff received
options to purchase 200,000 and 300,000 shares of the Common Stock of the
Company, respectively. The options have a per share exercise price of $.75 and
were granted for services rendered by Messrs. MacAniff and Reilly to the
Company.
(l) On December 15, 1995, the Company issued an aggregate of 1,200,000
shares of Common Stock to the following individuals in consideration for the
cancellation of accrued salaries, fees and expenses due to such individuals:
NAME: NUMBER OF SHARES:
- ----- -----------------
Guy Quigley 600,000
Charles Phillips 200,000
Eric Kaytes 40,000
Wendy Quigley 120,000
Robert L. Pollack 40,000
William Reilly 200,000
(m) On December 15, 1995, the Company issued an aggregate of 1,000,000
Class D warrants, each to purchase one share of the Company's Common Stock at a
per share exercise price of $.50. The warrants were granted to the following
individuals in consideration for services rendered to the Company by such
individuals:
NAME: NUMBER OF WARRANTS:
- ----- -------------------
Guy Quigley 200,000
Charles Phillips 150,000
Eric Kaytes 60,000
Wendy Quigley 200,000
Robert L. Pollack 60,000
William Reilly 100,000
Marielle Reilly 100,000
Kariba Holdings 130,000
(n) In April 1996, the Company sold 94,000 shares of Common Stock in a
private placement through Windsor Capital for gross proceeds of $58,750.
(o) In June 1996, the Company sold 40,000 shares of Common Stock to Mr.
Washburn in a private sale for total consideration of $25,000.
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(p) In June 1996, the Company issued 2,000 shares of Common Stock to
Anthony Calabreze in connection with a private sale for an aggregate purchase
price of $1,250,000.
(q) In June 1996 and September 1996, the Company issued an aggregate of
88,000 shares of Common Stock to A. Giordano in connection with the exercise of
warrants previously granted to Mr.
Giordano for underwriting services.
(r) In June 1996, the Company issued 600,000 shares of Common Stock to
Diversified Corporate Consultants in consideration of $300,000 and for future
public relations and capital placement services.
(s) In August 1996 the Company issued an aggregate of 30,000 shares of
Common Stock to A. Waterford Holdings in connection with the exercise of
previously granted options.
(t) On October 1, 1996, the Company granted Diversified Consultants
options to purchase an aggregate of 350,000 shares of Common Stock at a per
share exercise price of $1.75. The Options were granted in connection with the
execution of a marketing and shareholder relations agreement.
(u) On October 1, 1996, the Company granted Sands Brothers Ltd. options
to purchase an aggregate of 800,000 shares of Common Stock at a per share
exercise price of $1.75. The Options were granted in connection with entering
into an investment banking agreement.
(v) On July 1, 1996, the Company granted 1,700,000 Class E warrants,
each to purchase one share of the Company's Common Stock at a per share exercise
price of $1.75. The warrants were granted to the following individuals in
consideration for services rendered to the Company:
NAME: NUMBER OF WARRANTS:
- ------------ -------------------
Guy Quigley 300,000
Charles Phillips 300,000
Eric Kaytes 50,000
Wendy Quigley 200,000
Robert L. Pollack 50,000
William Reilly 140,000
Marielle Reilly 100,000
Thomas MacAniff 60,000
Prophase Management 200,000
Kariba Holdings 300,000
(w) On November 5, 1996, the Company granted 350,000 Class F warrants,
each to purchase one share of the Company's Common Stock at a per share exercise
price of $2.50. The warrants were granted to the following individuals in
consideration for services rendered to the Company:
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NAME: NUMBER OF WARRANTS:
- ------------ -------------------
Guy Quigley 75,000
Charles Phillips 75,000
George Longo 50,000
Eric Kaytes 25,000
Robert L. Pollack 25,000
William Reilly 50,000
Ted Karkus 50,000
(x) On May 6, 1997, the Company granted 650,000 Class G warrants, each
to purchase one share of the Company's Common Stock at a per share exercise
price of $10.00. The warrants were granted to the following individuals in
consideration for services rendered to the Company:
NAME: NUMBER OF WARRANTS:
- ------------ -------------------
Guy Quigley 140,000
Charles Phillips 85,000
George Longo 75,000
Eric Kaytes 35,000
Frank Merlino 10,000
William Reilly 50,000
Prophase Management 50,000
Thomas MacAniff 200,000
A. J. Robbins, MD 5,000
(y) On May 6, 1997, the Company issued 350,000 Class G warrants to
purchase shares of the Company's Common Stock at a per share exercise price of
$10.00. The warrants were issued as part of a settlement agreement with Sands
Brothers Ltd.
ITEM 27. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits:
EXHIBIT NO.
*3.1 Articles of Incorporation of the Company (as amended).
*3.2 Certificate to Increase the Number of Authorized Shares of
the Company.
*3.3 Bylaws of the Company as currently in effect.
*5 Opinion of Olshan Grundman Frome & Rosenzweig LLP with
respect to legality of the Common Stock.
*10.1 Stock Option Plan for Consultants, Advisors and Non-
Employee Directors.
*10.2 Exclusive Representation and Distribution Agreement dated
May 4, 1992 between the Company and Godfrey Science &
Design, Inc. et al.
*10.3 Employment Agreement dated June 1, 1995 between the Company
and Guy J. Quigley.
*10.4 Exclusive Master Broker Wholesale Distributor and
Non-Exclusive National Chain Broker Agreement dated July 22,
1994 between the Company and Russell Mitchell.
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**10.5 United States Exclusive Supply Agreement dated March 17,
1997 (portions of this exhibit are omitted and were filed
separately with the Securities Exchange Commission pursuant
to the Company's application requesting confidential
treatment in accordance with Rule 406 of Regulation C as
promulgated under the Securities Act of 1933).
*23.1 Consent of Olshan Grundman Frome & Rosenzweig LLP, included
in Exhibit No. 5.
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*23.2 Consent of Nachum Blumenfruct, CPA.
*25.0 Power of Attorney, included on the signature page to this
Registration Statement.
- ---------------------------
* Previously filed.
** Filed herewith.
ITEM 28. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) File, during any period in which it offers or sales securities, a
post-effective amendment to this registration statement to;
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in
the information in the registration statement;
(iii) Include any additional or changed material information on the
plan of distribution.
(2) For determining liability under the Securities Act of 1933, treat
each post-effective amendment as a new registration statement of the securities
offered, and in the offering of such securities at that time to be the initial
bona fide offering.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the small
business issuer pursuant to the foregoing provisions, or otherwise, the small
business issuer 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 and is, therefore, unenforceable.
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In the event that a claim for indemnification against such liabilities
(other than the payment by the small business issuer of expenses incurred or
paid by a director, officer or controlling person of the small business issuer
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the small business issuer 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 such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form SB-2 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Doylestown, State of Pennsylvania, on this 29th day
of September, 1997.
THE QUIGLEY CORPORATION
/S/ GUY J. QUIGLEY
-------------------------------------------
Guy J. Quigley, Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/S/ GUY J. QUIGLEY Chairman of the September 29, 1997
- -------------------------- Board, President,
Guy J. Quigley Chief Executive
Officer and
Director
* Vice President, September 29, 1997
- -------------------------- Chief Financial
George J. Longo Officer and
Director (Principal
Financial and
Accounting Officer)
* Vice President, September 29, 1997
- -------------------------- Secretary,
Eric H. Kaytes Treasurer, and
Director
* Vice President, September 29, 1997
- -------------------------- Chief Operating
Charles A. Phillips Officer and
Director
- -------------------------- Director September 29, 1997
Dr. Robert L. Pollack
* Director September 29, 1997
- --------------------------
A. Jerene Robbins, M.D.
*BY: /S/ GUY QUIGLEY
---------------
GUY J. QUIGLEY
ATTORNEY-IN-FACT
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