Plaintiff,
The Quigley Corporation (“Quigley” or the “Company”), by its undersigned
attorneys, for its Complaint against defendants, Ted Karkus, John Edmund Ligums,
Sr., Mark Burnett, John DeShazo, Louis Gleckel, and Mark Leventhal (collectively
“Defendants”), alleges on knowledge as to its own actions and otherwise on
information and belief as follows:
Nature of
Action
1. Quigley
is a publicly traded corporation with its headquarters in Doylestown,
Pennsylvania brings this action for injunctive and declaratory relief to protect
its shareholders from Defendants’ illegal scheme to obtain control of the
Company by means of materially false statements in proxy materials and other
required regulatory filings seeking to influence the outcome of Quigley’s annual
meeting of shareholders, scheduled for May 20, 2009. Among other
things, defendants have failed to disclose their agreements with defendant John
Edmund Ligums, Sr. (“Ligums”), a securities broker with a history of violations
of the federal securities laws. Ligums has been suspended by the
United States Securities and Exchange Commission (“SEC”) and ordered by the
Massachusetts Securities Division to refrain from exercising any managerial
duties and from having custody of customer funds. Quigley therefore
seeks injunctive relief to halt and prevent the recurrence of ongoing,
intentional violations of the federal securities laws in connection with
Defendants’ campaign to solicit shareholders’ proxies for the annual
meeting.
Jurisdiction and
Venue
2. This
Court has jurisdiction and venue is proper in this District pursuant to Section
27 of the Securities Exchange Act of 1934, as amended, (“the Exchange Act”), 15
U.S.C. § 78aa, federal question jurisdiction, 28 U.S.C. §1331, and 28 U.S.C. §
1391 (b)(2). Section 27 of the Exchange Act, 15 U.S.C. § 78aa,
confers exclusive jurisdiction upon the federal courts for “all suits in equity
and actions at law” to enforce any liability or duty under the Exchange
Act. Section 27 further provides that any such suit or action may be
brought in any district in which “any act or transaction constituting the
violation occurred.” The acts and transactions constituting the violations
alleged herein have taken place in this District, by virtue of Quigley’s office
here, and Defendants’ contacts with Quigley.
The
Parties
3. Plaintiff
Quigley is a Nevada corporation with its principal place of business in
Doylestown, Pennsylvania. The Company is a leading manufacturer,
marketer and distributor of a diversified range of homeopathic and health
products which comprise the Cold Remedy and Contract Manufacturing segments,
including Cold-Eeze®. Quigley is also involved in the research and
development of potential natural-based health products, including, but not
limited to, prescriptive medicines along with supplements and cosmeceuticals for
human and veterinary use, which comprise the Ethical Pharmaceutical
segment. Shares of Quigley’s common stock are registered under
Section 12(g) of the Exchange Act, and trade on the NASDAQ Global Market under
the symbol “QGLY.” As of March 27, 2009, Quigley had 12,908,383 shares of its
common stock outstanding, owned by several hundred shareholders.
4. Defendant
Ted Karkus is an individual residing in the State of New York. He
claims to own 620,850 shares of Quigley common stock.
5. Defendant
John Edmund Ligums, Sr. is an individual residing in the State of
Massachusetts. Upon information and belief, Ligums owns shares of
Quigley common stock, but has failed to disclose the nature and extent of his
share ownership. Ligums is a stock broker employed by J.P. Turner
& Company, LLC (“J.P. Turner”). As a broker, Ligums also controls
shares of Quigley common stock held by numerous other J.P. Turner
customers.
6. Defendant
Mark Burnett is an individual residing in the State of New York. He
claims to own 151,473 shares of Quigley common stock.
7. Defendant
John DeShazo is an individual residing in the State of
Massachusetts. He claims to own 277,000 shares of Quigley common
stock.
8. Defendant
Louis Gleckel is an individual residing in the State of New York. He
claims to own 20,000 shares of Quigley common stock.
9. Defendant
Mark Leventhal is an individual residing in the State of
Massachusetts. He claims to own 500,000 shares of Quigley common
stock.
The Company’s 2009 Annual
Meeting
10. Quigley’s
Board of Directors is comprised of seven individuals. Directors Guy
J. Quigley, Charles A Phillips and Gerard Gleeson are the Chief Executive
Officer and President, the Chief Operating Officer and Executive Vice President,
and Chief Financial Officer and Vice President of the Company,
respectively. The other directors of the Company are Jacqueline F.
Lewis, Rounsevelle W. Schaum, Stephen W. Wouch and Terrence O.
Tormey. Each of the directors have executive and managerial
experience.
11. On
or about April 20, 2009, Quigley disseminated its proxy materials to Quigley’s
shareholders, transmitting proxy cards as well as a disclosure statement
complying with SEC Rules. The proxy statement pertained to the annual
meeting of shareholders, set for May 20, 2009.
12. The
agenda for the annual meeting, as disclosed in Quigley’s proxy statement,
includes shareholder votes on two matters: (1) election to the Board
of Directors, specifically a vote regarding the slate of seven candidates, Guy
J. Quigley, Charles A. Phillips, Gerard M. Gleeson, Jacqueline F. Lewis,
Rounsevelle W. Schaum, Stephen W. Wouch and Terrence Tormey, all recommended by
the Board of Directors, and (2) to ratify the selection of Amper, Poliziner
& Mattia, LLP as Plaintiffs independent auditors for the year ending
December 31, 2009, also as recommended by the Board.
13. As
a public company, the Company’s shares are subject to extensive
regulation. Congress and the SEC have designed a regulatory structure
governing proxy solicitations, which is designed to ensure that proxy contests
be held in a fair and orderly manner, so that stockholders may make an informed
decision as to how they will vote their shares. Section 14(a) of the
Exchange Act, 15 U.S.C. § 78n(a) provides that it shall be unlawful for any
person to solicit proxies in contravention of the rules and regulations
prohibited by the SEC.
14. Any
person who wishes to conduct a proxy solicitation for shareholder votes must
therefore comply with the disclosure requirements mandated by the SEC in its
Rules 14a-1 through 14a-15, 17 C.F.R. §§ 240.14a-1 to 14a-15. These
requirements protect the interests of shareholders by assuring full and accurate
disclosure of material facts regarding the proposals for shareholder
vote. To comply with these rules, among other things, all proxy
solicitation materials must be filed with the SEC and must comply with the
Exchange Act’s anti-fraud provisions, 15 U.S.C. § 78n(a) and Rule 14a-9, 17
C.F.R. § 240.14a-9
15. Congress
also enacted Section 13(d) of the Exchange Act, 15 U.S.C. §
78m(d). The purpose of Section 13(d) is to alert the market place to
large and rapid aggregations of securities that are indicative of a potential
shift in corporate control and to provide investors with the information they
need to make informed decisions concerning the future of their
investment. This is accomplished by requiring persons having
beneficial ownership of more than five percent of the equity securities of any
publicly traded company to file disclosures with the SEC on a Schedule 13D
setting forth, among other things, their identity and background, any plans or
intentions with respect to the issuer, whether the party has any been enjoined
or found to have violated any federal or state security laws, as well as any
agreements, understandings or arrangements they have among themselves or with
others concerning the issuer’s securities. They are also required to
make disclosures regarding any subsequent increase in their
holdings.
16. In
order to prevent a group of investors from surreptitiously obtaining more than
five percent of the equity of any issuer through multiple buyers, Section 13(d)
and the rules promulgated thereunder require that any such group acting together
disclose all
group members, their aggregate holdings and the terms of any agreements or
understandings among them with respect to the targeted company. As
set forth below, Defendants’ failure to comply with these provisions has
thwarted the purpose of Section 13(d) and deprived Quigley’s public investors of
these protections.
Defendants’ Unlawful Filings
And Solicitation
17. Defendant
Karkus is the principal of Forrester Financial, LLC (“Forrester Financial”), an
unregulated financial advisor that Karkus uses, from time to time, to prey on
start up businesses. For more than a decade, Karkus has interjected
himself into the affairs of Quigley, seeking non-public information about the
Company’s plans, while offering to promote the Company’s stock in exchange for
warrants. In the Company’s early years, it issued a substantial
number of warrants to Karkus, who claimed to have promoted the stock to a wide
circle of investors. Karkus has pocketed millions of dollars in
profits through his Quigley warrants. Karkus has for many years
worked closely with John Ligums and one or more of the other defendants to share
information about the Company and to coordinate their investment strategies with
respect to the Company’s shares.
18. Defendant
Ligums has, from time to time, joined with Mr. Karkus in his efforts to profit
from trading in Quigley common stock or to influence management to implement
measures to advance their short-term interests. Ligums uses the Internet
pseudonym “John E. Montana” and his Facebook page indicates that he is a “fan”
of “Cold-EEZE,” the signature product sold by the Company. He has
boasted to Quigley management that he controls over one million shares of
Quigley stock. In late 2002, Ligums contacted Quigley, claiming that
he could assist the Company in promoting its stock with a large financial
institution. More recently, in early 2008, defendants Ligums and
Karkus together approached a senior executive at Quigley, suggesting that he
join with them in a proxy contest to oust the current CEO, Guy
Quigley. Defendant Ligums’ Facebook page includes as a “friend” Dr.
Roger Sohn, a Quigley shareholder who contacted the Board in 2008, raising many
of the issues now raised by defendant Karkus and his allies in their proxy
campaign. Ligums has introduced Karkus to several members of the
Karkus “group” described below.
19. On
April 7, 2009, defendant Karkus, along with all defendants other than defendant
Ligums, filed a Schedule 13D with the SEC announcing, among other things, they
had formed a “group,” as such term is used in Section 13(d)(l)(k) of the rules
and regulations under the Exchange Act. There defendants announced
that their “group” had been formed to solicit proxies in connection with the
2009 Annual Meeting of the Company. There can be no doubt that
defendant Ligums played a key role in fanning the “group.” His agreements,
relationships, and understandings with the other members of the “group,”
however, are nowhere disclosed in the Schedule 13D. Indeed, defendant
Ligums has extensive connections with other members of the “group.” In addition
to their joint roles involving Quigley, defendant Ligums and Karkus have
extensive personal relationships and have engaged in other joint
investments. For example, both Ligums and Karkus were investors in
Truelite, Inc., a start up company. Defendant Ligums’ Facebook pages
list both Mr. Karkus and one or more of his children as “friends.” Defendant
DeShazo is also a Facebook “friend” of defendant Ligums. Defendant
DeShazo’s business, FNB Construction, contains a testimonial from defendant
Ligums on its web site. Defendant Leventhal is likewise linked to
defendant Ligums. Defendant Leventhal invested in Empire Financial
Holding Co., a now defunct brokerage firm that employed both Mr. Ligums and his
wife, Ann Bradford Ligums, in 2008. One or more of defendants use Mr.
Ligums’ firm, J.P. Turner, as their stock broker.
20. Defendants
have strong reasons to conceal Mr. Ligums’ role from Quigley
shareholders. On four separate occasions, state or federal regulators
have stepped in to discipline defendant Ligums. In 1996, the
Massachusetts Securities Division entered an order, based on defendant Ligums’
extensive disciplinary history, prohibiting him from “exercising any principal,
managerial or supervisory duties and from having possession or custody of
customer funds.” The Massachusetts Securities Division further required
defendant Ligums’ then current employer “to perform special supervision with
respect to Ligums.” As a result of the Massachusetts Securities Division’s
findings, defendant Ligums was forced to abandon all supervisory and ownership
positions in the brokerage industry, and now must serve only as a
stockbroker. The drastic sanctions imposed by the state regulators
came after the SEC found that defendant Ligums, when operating his own firm, J.
Edmund & Co., had violated federal securities laws, including through the
sale of new issues without obtaining payment from customers. The SEC
found that defendant Ligums had earned approximately $255,000 in brokerage
commission through an unlawful scheme in which he offered credit arrangements to
customers in violation of the federal margin laws. It suspended
defendant Ligums from “association with any regulated entity for a period of
nine months. The severe SEC sanction came after defendant Ligums had
been fined by both the NASD and the SEC on other matters. In 1986,
the NASD fined Ligums $4,000 for failure to comply with net capital
requirements. In 1984, the SEC suspended defendant Ligums from
“association with any broker, dealer, municipal securities dealer, investment
advisor or investment company for 14 calendar days.”
21. Defendants’
Schedule 13D is false and misleading for failure to disclose defendant Ligums’
participation in the joint investment that he has with the other defendants in
Quigley shares; for failure to disclose defendant Ligums’ participation in the
proxy contest now underway; for failure to disclose in full the understandings
and arrangements between defendants Ligums and the other defendants; and for
failure to disclose the brokerage accounts at J.P. Turner over which defendant
Ligums exercises de facto control. Defendants have also failed to
file a joint fling agreement in violation of SEC Rule 13d-l(k)(1).
22. Defendants’
Schedule 13D is also false and misleading for failure to disclose their true
plans for the Company. The Schedule 13D recites that defendants,
other than Ligums, “have verbally agreed to vote their shares in support of a
proxy in which they are to be nominated as directors of the Company, which, if
successful, would result in a change in the present Board of Directors of the
Company.” Defendants have attested that they “do not have any plans or
proposals” relating to any possible sale of the Company or to engage in any
other major transactions. These statements are
false.
23. On
several occasions, defendant Karkus has approached senior management at the
Company urging a sale of the business or even proposing to arrange a sale to a
buyer located by Karkus. Defendant Karkus asked the Company to
include a shareholder proposal for consideration at its 2003 Annual Meeting to
have Quigley “engage an investment banking firm to advise the Company on ways to
maximize shareholder value, including a potential sale or merger of the
Company.” The proposal did not pass. Defendant Karkus has
nonetheless persisted in urging a sale of the business. In January
2008, defendant Karkus approached plaintiff’s CEO, Guy Quigley and indicated
that he was prepared to purchase the company at a $2 per share premium to the
then current market price. One or more of defendants had plans to
join in the bid. In January 2009, defendant Karkus renewed his
proposal, indicating that he had a buyer for the Company. After
Quigley’s CEO rebuffed the suggestion, the proxy contest
ensued. Defendants’ Schedule 13D contains no disclosures at all
regarding these plans.
24. On
April 9, 2009, defendants other than defendant Ligums, filed a preliminary proxy
statement on Schedule 14A with the SEC. On April 20, 2009, defendants
filed a revised preliminary proxy (the “Preliminary Proxy Statement”), which
they apparently intend to circulate shortly. The Preliminary Proxy
Statement also fails to disclose defendants’ true plans for the Company, namely
their program to arrange for a sale, most likely to one of their own group, or
alternatively spin-off Quigley’s Pharma division, which is engaged in developing
new products. The Preliminary Proxy Statement also fails to disclose
all of the facts regarding the background to the solicitation, including
defendant Karkus’ previous efforts to arrange a sale. The Preliminary
Proxy Statement also fails to disclose defendants Ligums’ role as a participant
in the contest.
25. The
Preliminary Proxy Statement is false and misleading in other material
respects. Defendants claim that “the [current] Board approved the
sale of key revenue producing assets in 2008 to a company for which the CEO’s
brother is a major stockholder (which was not disclosed in Company filings) and
at a highly questionable value.” The asset alleged to be a “key revenue
producing asset” has not been a profitable segment of the Company since
2005. In fact, the asset lost $1,227,604 and $688,111 in 2006 and
2007, respectively. In addition, the revenues were stagnating and in
decline in the three years prior to disposal. Defendants also claim
that the asset was sold to “a company for which the CEO’s brother is a major
shareholder (which was not disclosed in Company filings).” This statement is
also false. On February 29, 2008, the Company sold the asset, Darius
International Inc. (“Darius”) to Innerlight Holdings, Inc. (“Innerlight”), whose
major shareholder is Kevin P. Brogan, the former president of Darius, at a cash
purchase price of $1,000,000 for the stock of Darius and its subsidiaries
without guarantees, warranties or indemnifications. Prior to the sale
of Darius, Gary Quigley, the brother of the Company’s Chairman, President and
CEO, was employed by the Company as a liaison between the Company and the Darius
segment. While Gary Quigley is currently a shareholder of Innerlight,
it was not until after the sale of Darius that Gary Quigley acquired his
Innerlight shareholdings. Defendants’ claim that an arrangement was
in place before the sale is false.
26. Defendants
further claim that the Quigley sold the asset at “a highly questionable
valuation,” is also false and misleading. In fact, Marcum &
Kliegman LLP, Certified Public Accountants and Consultants, conducted a
valuation before the sale and the sale price of $1 million was in excess
of that valuation.
COUNT I - FOR INJUNCTIVE
RELIEF
(Violations
of Section 14(a) of the
1934 Act and the Rules
Thereunder)
27. Quigley
repeats and realleges the allegation of paragraphs 1 through 26 above as though
fully set forth herein.
28. Congress
and the SEC have designed an extensive regulatory structure governing proxy
solicitations, which is designed to ensure that proxy contests be held in a fair
and orderly manner so that stockholders may make an informed decision as to how
they will vote their shares. Section 14(a) of the Exchange Act
provides that it shall be unlawful for any person to solicit proxies in
contravention of the rules and regulations prohibited by the
SEC.
29. Under
the SEC’s proxy rules, Defendants were required to provide the disclosures
mandated by SEC Rule 14-101, also known as Schedule 14A. These
regulations protect shareholders by requiring full disclosure of interested
parties, solicitation costs and other material information.
30. Rule
14a-3, with certain exceptions not applicable here, requires that before the
commencement of a proxy solicitation, a written proxy statement containing the
information specified in Schedule 14A be filed with the SEC and distributed to
each person solicited in connection with any solicitation governed by Section
14(a) of the Exchange Act. Among other things, the proxy statement
must contain the information required by Schedule 14A, including: (i)
certain information as to the persons making such solicitation; (ii) information
as to the interest of such persons in the company, including, but not limited
to, information as to share ownership of company securities; (iii) information
as to the voting securities of the company and the holders thereof; (iv)
financial information with respect to the aforementioned transactions; and (v)
whether the proxy is revocable. Each shareholder must be furnished
with a written proxy statement.
31. A
key requirement of Schedule 14A is the disclosure of all “participants” in the
proxy process, a term that is broadly defined to include:
(iii) Any
committee or group which solicits proxies, any member of such committee or
group, and any person whether or not named as a member who, acting alone or with
one or more persons, directly or indirectly takes the initiative, or engages, in
organizing, directing or arranging for the financing of any such committee or
group;
(iv) Any
person who finances or joins with another to finance the solicitation of
proxies, except persons who contribute not more than $500 and who are not
otherwise participants.
(v) Any
person who lends money or furnishes credit or enters into any other
arrangements, pursuant to any contract or understanding with a participant, for
the purpose of financing or otherwise inducing the purchase, sale, holding or
voting of securities of the registrant by any participant or other persons, in
support of or in opposition to a participant; except that such terms do not
include a bank, broker or dealer who, in the ordinary course of business, lends
money or executes orders for the purchase or sale of securities and who is not
otherwise a participant; and
(vi) Any
person who solicits proxies.
SEC Rule
14-101 Item 4, instruction 3(iii)-(vi). Similarly, Items 4(b)(2) and
5(b)(1) of Schedule 14A require disclosure of each “participant” in a proxy
solicitation and detailed information regarding those participants.
32. In
making solicitations for shareholder proxies, and his solicitation against
execution of proxies voting in favor of the slate of candidates for the Board of
Directors, proposed by the existing Directors of the Company, defendants Karkas,
Burnett, DeShazo, Gleckel and Leventhal are and were at all times working with
defendant Ligums.
33. Defendants
Karkas, Burnett, DeShazo, Gleckel, and Leventhal’s failure to disclose the
identity of defendant Ligums in a Schedule 14A filed with the SEC, and his
interest in the affairs of the Company, is a material violation of the federal
securities laws.
34. Defendants
deliberately did not disclose Ligums as a “participant” because such disclosure
would have required Defendants to set forth in their proxy statement Ligums’
extensive track record of securities law violations.
35. As
a result of the above violations of Section 14(a) of the Exchange Act and the
regulations promulgated thereunder, unless Defendants’ conduct of ongoing proxy
solicitation is restrained by this Court, the Company, its stockholders and
investing public have been and will continue to be irreparably
injured.
36. By
virtue of the foregoing, Defendants have violated and are continuing to violate
Section 14(a) of the 1934 Act and the rules and regulations promulgated
thereunder.
37. Quigley
has no adequate remedy at law.
COUNT II - FOR INJUNCTIVE
RELIEF
(Violations
of Section 14(a) of the Exchange Act and the Rules and the
Rules Thereunder by
Disseminating False and Misleading Proxy Materials)
38. Quigley
repeats and realleges the allegations of paragraphs 1 through 37 above as though
fully set forth herein.
39. Defendants
have also launched a materially misleading attack upon the Company’s directors
in their Preliminary Proxy Statement. Such allegations
are
materially
false and misleading.
40. Defendants
have already disseminated materially misleading and illegal proxy materials to
the Company’s shareholders and are no doubt planning to disseminate additional,
similar materials as the annual meeting approaches. Injunctive relief
is urgently required to assure that the Company’s shareholders and investors are
not misled.
41. By
virtue of the foregoing, defendants have violated and are continuing to violate
Section 14(a) of the Exchange Act and the rules and regulations promulgated
thereunder.
42. As
a result of the above violations of Section 14(a) of the Exchange Act and the
regulations promulgated thereunder, unless Defendants’ conduct of ongoing proxy
solicitation is restrained by this Court, the Company, its stockholders and
investing public have been and will continue to be irreparably
injured.
43. Quigley
has no adequate remedy at law.
COUNT III - FOR INJUNCTIVE
RELIEF
(Violations of Section 13(d)
of the 1934 Act and Rule 13-d thereunder)
44. Quigley
repeats and realleges the allegations of paragraphs 1 through 43 above as though
fully set forth herein.
45. Section
13(d) of the 1934 Act, and the rules and regulations promulgated thereunder,
require that any person, or any group of persons, acting for the purpose of
acquiring, holding, or voting a corporation’s securities must file a statement
with the SEC within 10 days after acquiring beneficial ownership of more than 5%
of any class of the corporation’s voting securities.
46. That
statement, known as a Schedule 13D, must set forth the reporting persons’
background, identity, residence, citizenship, and the nature and amount of their
beneficial ownership.
47. A
Schedule 13D must also report the source and amount of funds used to purchase
the beneficially owned securities. If the purchasers’ purpose is to
obtain control of the corporation, their Schedule 13D must set forth their plans
or proposals for any major change in the corporation’s structure.
48. In
addition, a Schedule 13D must report the purchasers’ agreements, arrangements,
or understandings concerning the corporation’s securities.
49. Defendants
own more than five percent of the outstanding shares of the common stock of
Plaintiff.
50. Defendants
are members of a group within the meaning of Rule 13d-5(b)(1) promulgated under
the Exchange Act, who have entered into an agreement to use their shares of
common stock for the purpose of acquiring, holding, or voting Plaintiff’s shares
of common stock and for other undisclosed purposes, and had a statutory
obligation to file a Schedule 13D within 10 days of reaching that
agreement.
51. Although
Defendants other than Ligums filed a Schedule 13D, such Schedule 13 D did not
disclose that Ligums was part of their group.
52. Because
of this violation of Section 13(d) of the 1934 Act, and the rules and
regulations promulgated thereunder, Plaintiff has been, is now, and will be
irreparably injured because defendants’ failure to file a Schedule 13D which
includes Ligums deprives Plaintiff and its shareholders of information to which
they are lawfully entitled and which is necessary to understand defendants’
purposes and plans concerning the Company so that Plaintiff and its shareholders
can be fully informed in making any decisions
to sell or vote their shares of common stock.
53. Quigley
has no adequate remedy at law.
54. Quigley
is entitled to an Order directing Defendants to file a Schedule 13D that
complies in all respects with the pertinent statutory and regulatory
requirements.
COUNT IV - FOR INJUNCTIVE
RELIEF
55. Quigley
repeats and realleges the allegations of paragraphs 1 through 54 above as though
fully set forth herein.
56. Defendants
collectively own in excess of ten percent of the outstanding shares of Quigley.
Pursuant to Section 16(a) of the Exchange Act, 15 U.S.C. § 78p(a), defendants
are obligated to file an initial report on Form 3 disclosing their ownership and
to make timely filings on Form 4 regarding any changes in their share ownership.
Defendants have violated Section 16, and the regulations thereunder, by failing
to file an initial Form 3.
57. Quigley
is entitled to a mandatory injunction directing defendants to comply with
Section 16(a) of the Exchange Act.
58. Quigley
has no adequate remedy at law.
COUNT V - FOR DECLARATORY
RELIEF
59. Quigley
repeats and realleges the allegations of paragraphs 1 through 58 above as though
fully set forth herein.
60. Based
on the foregoing, plaintiff is entitled to a declaration that Defendants are
“group” for the purposes of Section 13(d) of the 1934 Act that defendants Ligums
“participant” pursuant to Section 14(a) of the 1934 Act, and that defendants
have violated Sections 13, 14 and 16 of the Exchange Act.
WHEREFORE,
Plaintiff prays for judgment as follows:
A. Preliminarily
and permanently enjoining Defendants and their respective servants, employees,
agents and attorneys and all persons acting on their behalf or in concert or
participation with them, from directly or indirectly: violating
Section 14(a) of the 1934 Act and the rules and regulations promulgated
thereunder; soliciting and delivering any proxy, consent or authorization with
respect to Plaintiffs’ securities; soliciting, acquiring, or attempting to
acquire any securities of Plaintiff; voting in person or by proxy any securities
of Plaintiff; soliciting or arranging for the solicitation of orders to buy or
to sell any securities of Plaintiff; otherwise controlling or influencing or
attempting to control or influence in any manner the management or business
policies and decisions of Plaintiff through use of securities of Plaintiff or
otherwise or taking or attempting to take any other steps in furtherance of any
plan to change or influence the control of Plaintiff, including, but not limited
to, continuing Defendants’ ongoing proxy solicitations.
B. Alternatively,
preliminarily and permanently enjoining Defendants and their respective
servants, employees, agents and attorneys and all persons acting on their behalf
or in concert or participation with them, from proceeding with any proxy
solicitation, or attempting to exercise or utilize in any manner any written
proxy delivered to them, until such time as they have complied with all
requirements of the Exchange Act, including, without limitation the filing of a
complete and accurate Schedule 14A and definitive proxy material fully complying
with the relevant provisions of the Exchange Act and the rules and regulations
promulgated thereunder, and the shareholders of Plaintiff have been afforded a
sufficient opportunity to review such complete and accurate filing so as to
render an informed decision thereon.
C. Preliminarily
and permanently enjoining defendants and their servants, employees, agents and
attorneys and all persons acting on his behalf or in concert or participation
with them, from making any false or misleading statements in any proxy
materials, regarding Plaintiff, or its management or Board of
Directors.
D. The
Court adjudge that Defendants as a group have violated Section 13(d) of the
Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder; violated Sections 14(a) of the Exchange Act and the rules and
regulations promulgated thereunder and Section 16(a) of the Exchange Act and the
rules and regulations promulgated thereunder.
E. The
Court order Defendants as a group to file a Schedule 13D concerning their
agreement to use their shares of common stock for the purpose of acquiring,
holding, or voting Plaintiff’s shares of common stock, and for any other
purposes, that complies in all respects with the pertinent statutory and
regulatory requirements.
F. Awarding
Plaintiff costs, disbursements, attorney’s fees, and such other and further
relief as the Court deems just and proper.
Dated: April
23, 2009
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By:
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/s/
John P. McShea
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John
P. McShea
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Attorney
Identification No. 34562
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McSHEA
TECCE, P.C.
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Bell
Atlantic Tower, 28th Floor
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1717
Arch Street
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Philadelphia,
Pa. 19103
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(215)
599-0800
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Attorneys
for Plaintiff,
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The
Quigley
Corporation
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Of
Counsel:
Thomas J.
Fleming
Mark S.
LaFayette
OLSHAN
GRUNDMAN FROME
ROSENZWEIG
& WOLOSKY LLP
Park
Avenue Tower
65 East
55th Street
New York,
New York 10022
Telephone: (212)
451-2300