SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
The
Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): May 5, 2010
PROPHASE
LABS, INC.
(Exact
name of registrant as specified in its charter)
Nevada
(State
or other
jurisdiction
of incorporation)
|
0-21617
(Commission
File
Number)
|
23-2577138
(I.R.S.
Employer
Identification
No.)
|
621
Shady Retreat Road
Doylestown,
PA
|
18901
|
(Address
of principal executive offices)
|
(Zip
Code)
|
Registrant's
telephone number, including area code:
(215) 345-0919
The
Quigley Corporation
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (
see
General
Instruction A.2. below):
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
Item
5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
(e)
(i) 2010 Equity
Compensation Plan
At the Annual Meeting of Stockholders
of ProPhase Labs, Inc. (the “
Company
”) held on May 5, 2010
(the “
Annual Meeting
”),
the Company’s stockholders ratified the adoption of the Company’s 2010 Equity
Compensation Plan (the “
2010
Plan
”), which the Company’s Board of Directors (the “
Board
”) had approved and the
Compensation Committee (the “
Compensation Committee
”) of
the Board had ratified, subject to stockholder ratification, in March
2010.
The 2010 Plan provides for the grant of
options to employees, officers, consultants and advisors of the Company and its
affiliates. The aggregate number of shares of common stock that may be issued
under all awards made under the 2010 Plan is equal to 900,000 shares plus up to
900,000 shares that are authorized for issuance but unissued under the Company’s
1997 Stock Option Plan (the “
1997 Plan
”). The
1997 Plan expired on December 2, 2007, and no additional awards may be made
thereunder; however, as of May 6, 2010, there remained 1,357,750 shares subject
to vested options that are authorized for issuance but unissued under the 1997
Plan. In the event that these outstanding options under the 1997 Plan
expire unexercised or are terminated and the shares subject to such options
remain unissued, up to a maximum of 900,000 of such shares will become available
for issuance under the 2010 Plan.
The 2010 Plan is administered by the
Compensation Committee or such other committee selected by the Board. The 2010
Plan will expire on the seventh anniversary of the effective date (as defined in
the 2010 Plan), but any options granted prior to such date may extend beyond
such date. The Compensation Committee may not adjust or amend the exercise price
of any outstanding stock option or substitute an outstanding option for a new
option with a lower exercise price, except in the case of a stock split,
recapitalization or change in control, as provided in Section 7 of the 2010
Plan.
For a more detailed description of the
material features of the 2010 Plan, please refer to the Company’s Definitive
Proxy Statement on Schedule 14A filed with the Securities and Exchange
Commission on April 2, 2010 in connection with the Company’s 2010 Annual Meeting
of Stockholders (the “
2010
Proxy Statemen
t”), under the caption “Proposal 4 — Ratification of the
2010 Equity Compensation Plan”, which description is incorporated herein by
reference. The above description of the 2010 Plan does not purport to be
complete and is qualified in its entirety by reference to the complete text of
such plan, which was attached as Exhibit B to the 2010 Proxy Statement and is
incorporated by reference herein.
(ii) 2010 Directors’
Equity Compensation Plan
At the Annual Meeting, the Company’s
stockholders also ratified the adoption of the Company’s 2010 Directors’ Equity
Compensation Plan (the “
2010
Directors’ Plan
”), which the Company’s Board had approved and the
Compensation Committee had ratified, subject to stockholder ratification, in
March 2010.
The 2010 Directors’ Plan provides for
the grant of options and restricted stock awards to non-employee directors of
the Company and its affiliates. The aggregate number of shares of common stock
that may be issued under all awards made under the 2010 Directors’ Plan is
250,000 shares. The 2010 Directors’ Plan is administered by the
Compensation Committee or such other committee selected by the Board. The 2010
Directors’ Plan will expire on the tenth anniversary of the effective date (as
defined in the 2010 Directors’ Plan), but any award granted prior to such date
may extend beyond such date.
For a more detailed description of the
material features of the 2010 Directors’ Plan, please refer to the 2010 Proxy
Statement, under the caption “Proposal 5 — Ratification of the 2010 Directors’
Equity Compensation Plan”, which description is incorporated herein by
reference. The above description of the 2010 Directors’ Plan does not purport to
be complete and is qualified in its entirety by reference to the complete text
of such plan, which was attached as Exhibit C to the 2010 Proxy Statement and is
incorporated by reference herein.
The information contained in Item 5.07
of this Report regarding the ratification of the 2010 Plan and the 2010
Directors’ Plan is incorporated herein by reference.
(iii) Amendment to 2010
Directors’ Equity Compensation Plan
On May 6, 2010, pursuant to Section 11
of the 2010 Directors’ Plan, the Board approved an amendment to the 2010
Directors’ Plan (the “
Amendment
”) providing for
certain prohibitions on repricings of awards issued under the 2010 Directors’
Plan. Specifically, the Amendment provides, subject to Section 8 of the 2010
Directors’ Plan, that without stockholder approval, (i) the terms of outstanding
awards may not be amended to reduce the exercise price of outstanding options
and (ii) outstanding options may not be cancelled in exchange for cash, other
awards or options with an exercise price that is less than the exercise price of
the original options. The foregoing description of the Amendment is qualified in
its entirety by the text of the Amendment, which is filed as Exhibit 10.3 hereto
and incorporated herein by reference.
Item
5.03. Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year
At the Annual Meeting, the stockholders
of the Company also approved an amendment to the Company’s Articles of
Incorporation to change the name of the Company from The Quigley Corporation to
ProPhase Labs, Inc., which the Board had approved, subject to stockholder
approval, in March 2010. The amendment became effective on May 6, 2010. A copy
of the Certificate of Amendment of the Articles of Incorporation of the Company
is attached hereto as Exhibit 3.1 and is incorporated by reference
herein.
Concurrent with the Company’s name
change, effective May 10, 2010, the Company’s shares began trading under the new
NASDAQ ticker symbol: PRPH. The Company previously traded under the symbol:
QGLY.
The information contained in Item 5.07
of this Report regarding the approval of the amendment to the Articles of
Incorporation to effectuate a name change is incorporated herein by
reference.
Item
5.07 Submission of Matters to a Vote of Security Holders.
Five proposals were submitted to, and
approved by, stockholders at the Annual Meeting on May 5, 2010. The proposals
are described in detail in the Company’s 2010 Proxy Statement. The final results
for the votes regarding each proposal are set forth below.
1.
Stockholders elected seven directors to the Company’s Board to hold office for
the ensuing year until the next annual meeting of stockholders and until their
successors are elected and qualified. The votes regarding this proposal were as
follows:
|
|
For
|
|
Withheld
|
|
Abstained
|
|
Broker Non-Votes
|
Ted
Karkus
|
|
7,467,931
|
|
225,029
|
|
0
|
|
1,952,780
|
Mark
Burnett
|
|
7,193,939
|
|
499,021
|
|
0
|
|
1,952,780
|
John
DeShazo
|
|
7,468,346
|
|
224,614
|
|
0
|
|
1,952,780
|
Mark
Frank
|
|
7,433,423
|
|
259,537
|
|
0
|
|
1,952,780
|
Louis
Gleckel, MD
|
|
7,196,741
|
|
496,219
|
|
0
|
|
1,952,780
|
Mark
Leventhal
|
|
7,468,386
|
|
224,574
|
|
0
|
|
1,952,780
|
James
McCubbin
|
|
7,194,004
|
|
498,956
|
|
0
|
|
1,952,780
|
2.
Stockholders ratified the selection of Amper, Politziner & Mattia, LLP as
our independent registered public accounting firm for the fiscal year ending
December 31, 2010. The votes regarding this proposal were as
follows:
For
|
|
Against
|
|
Abstained
|
|
Broker Non-Votes
|
9,504,417
|
|
119,346
|
|
21,977
|
|
0
|
3.
Stockholders approved the amendment to the Company’s Articles of Incorporation
to change the name of the Company to ProPhase Labs, Inc. The votes regarding
this proposal were as follows:
For
|
|
Against
|
|
Abstained
|
|
Broker Non-Votes
|
8,399,425
|
|
1,221,180
|
|
25,135
|
|
0
|
4.
Stockholders ratified the adoption of the 2010 Plan. The votes regarding this
proposal were as follows:
For
|
|
Against
|
|
Abstained
|
|
Broker Non-Votes
|
7,359,069
|
|
289,354
|
|
44,537
|
|
1,952,780
|
5.
Stockholders ratified the adoption of the 2010 Directors’ Plan. The votes
regarding this proposal were as follows:
For
|
|
Against
|
|
Abstained
|
|
Broker
Non-Votes
|
7,334,874
|
|
314,499
|
|
43,587
|
|
1,952,780
|
Item
8.01 Other Events
A copy of a press release issued by the
Company on May 6, 2010 announcing the results of the Annual Meeting is filed
hereto as Exhibit 99.1.
Item 9.01 Financial Statements and
Exhibits.
(d)
Exhibits
No.
|
|
Description
|
|
|
|
3.1
|
|
Certificate
of Amendment to Articles of Incorporation*
|
10.1
|
|
2010
Equity Compensation Plan (incorporated by reference to Exhibit B to the
Company’s Definitive Proxy Statement on Schedule 14A filed with the
Securities and Exchange Commission on April 2, 2010)
|
10.2
|
|
2010
Directors’ Equity Compensation Plan (incorporated by reference to Exhibit
C to the Company’s Definitive Proxy Statement on Schedule 14A filed with
the Securities and Exchange Commission on April 2,
2010)
|
10.3
|
|
Amendment
to 2010 Directors’ Equity Compensation Plan*
|
10.4
|
|
Form
of Option Award Agreement under the 2010 Equity Compensation
Plan*
|
10.5
|
|
Form
of Option Award Agreement under the 2010 Directors’ Equity Compensation
Plan*
|
10.6
|
|
Form
of Stock Award Agreement under the 2010 Directors’ Equity Compensation
Plan*
|
99.1
|
|
Press
Released dated May 6,
2010*
|
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
The
Quigley Corporation
|
|
By:
|
/s/ Robert V. Cuddihy,
Jr.
|
|
Robert
V. Cuddihy, Jr.
|
|
Chief
Operating Officer
|
Date: May
10, 2010
EXHIBIT INDEX
No.
|
|
Description
|
|
|
|
3.1
|
|
Certificate
of Amendment to Articles of Incorporation*
|
10.1
|
|
2010
Equity Compensation Plan (incorporated by reference to Exhibit B to the
Company’s Definitive Proxy Statement on Schedule 14A filed with the
Securities and Exchange Commission on April 2, 2010)
|
10.2
|
|
2010
Directors’ Equity Compensation Plan (incorporated by reference to Exhibit
C to the Company’s Definitive Proxy Statement on Schedule 14A filed with
the Securities and Exchange Commission on April 2,
2010)
|
10.3
|
|
Amendment
to 2010 Directors’ Equity Compensation Plan*
|
10.4
|
|
Form
of Option Award Agreement under the 2010 Equity Compensation
Plan*
|
10.5
|
|
Form
of Option Award Agreement under the 2010 Directors’ Equity Compensation
Plan*
|
10.6
|
|
Form
of Stock Award Agreement under the 2010 Directors’ Equity Compensation
Plan*
|
99.1
|
|
Press
Released dated May 6,
2010*
|
* Filed
herewith.
|
|
ROSS MILLER
Secretary of
State
204 North Carson Street, Suite 1
Carson City, Nevada
89701-4520
(775) 684 5708
Website:
www.nvsos.gov
|
Certificate of Amendment
(PURSUANT TO NRS 78.385 AND
78.390)
|
USE
BLACK INK ONLY — DO NOT HIGHLIGHT
|
|
ABOVE
SPACE IS FOR OFFICE USE ONLY
|
Certificate
of Amendment to Articles of Incorporation
For
Nevada Profit Corporations
(Pursuant to NRS
78.385 and 78.390 — After Issuance of Stock)
1.
Name of corporation:
2. The articles have been amended as follows: (provide article numbers, if
available)
Article
1 shall be amended as follows:
“The name of the
corporation shall be ProPhase Labs, Inc.”
|
3. The vote by which the stockholders holding
shares in the corporation entitling them to exercise a least a majority of the
voting power, or such greater proportion of the voting power as may be required
in the case of a vote by classes or series, or as may be required by the
provisions of the articles of incorporation* have voted in favor of the
amendment is:
57.9 of shares
outstanding
4.
Effective date of filing: (optional)
|
|
_________________________________________________
|
|
|
|
(must
not be later than 90 days after the certificate is filed)
|
|
5. Signature: (required)
X
/s/
Robert V. Cuddihy
|
|
|
|
|
Signature
of Officer
|
|
|
|
|
|
*
|
If any proposed amendment would alter or
change any preference or any relative or other right given to any class or
series of outstanding shares, then the amendment must be approved by the
vote, in addition to the affirmative vote otherwise required, of the
holders of shares representing a majority of the voting power of each
class or series affected by the amendment regardless to limitations or
restrictions on the voting power thereof.
|
IMPORTANT:
Failure
to include any of the above information and submit with the proper fees may
cause this filing to be rejected.
This form must be accompanied by appropriate
fees.
The
Quigley Corporation, a Nevada corporation (the “
Company
”), hereby
adopts this Amendment (this “
Amendment
”) to 2010
Directors’ Equity Compensation Plan (the ‘
Plan
”).
WITNESSETH
WHEREAS
, the Company’s
Compensation Committee adopted the Plan and the Board of Directors (the “
Board
”) ratified the
Plan; and
WHEREAS
, the Plan was
submitted to and ratified by the Company’s stockholders at the Company’s Annual
Meeting of Stockholders on May 5, 2010.
NOW, THEREFORE,
the Plan is
hereby amended as follows:
1. Section
4 of the Plan is amended by deleting the seventh sentence from said Section and
replacing in lieu thereof the following sentence:
“Awards
may, in the discretion of the Committee, be awarded under the Plan in assumption
of, or in substitution for, outstanding Awards previously granted by the
Company, any of its Affiliates or any of their respective predecessors, or any
entity acquired by the Company or with which the Company combines;
provided
however
, subject to
Section 8 hereof, that without stockholder approval (i) the terms of outstanding
Awards may not be amended to reduce the exercise price of outstanding Options
and (ii) outstanding Options may not be cancelled in exchange for cash, other
awards or Options with an exercise price that is less than the exercise price of
the original Options.”
2. This
Amendment shall be effective as of May 6, 2010, and all references to the Plan
shall, from and after such time, be deemed to be references to the Plan as
amended hereby.
3. Except
as expressly amended hereby, the Plan shall remain unchanged and in full force
and effect.
THE QUIGLEY
CORPORATION
2010 EQUITY COMPENSATION
PLAN
OPTION AWARD
AGREEMENT
THIS
AGREEMENT (the “
Agreement
”), is made
effective as of the
[DAY]
day of
[MONTH]
,
[YEAR]
, (hereinafter called
the “
Date of
Grant
”), between The Quigley Corporation, a Delaware corporation
(hereinafter called the “
Company
”), and
[NAME]
(hereinafter called the
“
Participant
”):
RECITALS
:
WHEREAS,
the Committee has determined that it would be in the best interests of the
Company and its shareholders to grant the option provided for herein to the
Participant pursuant to the Plan and the terms set forth herein.
NOW
THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
parties agree as follows:
1.
Grant of the
Option
. The Company hereby grants to the Participant the right and
option (the “
Option
”) to purchase,
on the terms and conditions hereinafter set forth, all or any part of an
aggregate of
[# OF SHARES]
Shares, subject to adjustment as set forth in the Plan. The purchase
price of the Shares subject to the Option shall be $
[PRICE]
per Share (the “
Option Price
”). The
Option is intended to be a non-qualified stock option, and is not intended to be
treated as an option that complies with Section 422 of the Internal Revenue Code
of 1986, as amended.
2.
Vesting
.
(a) All
Options granted pursuant to the Plan shall vest and become exercisable in
accordance with the following schedule:
First
Anniversary of the Date of Grant
|
|
|
[
|
%]
|
Second
Anniversary of the Date of Grant
|
|
|
[
|
%]
|
Third
Anniversary of the Date of Grant
|
|
|
[
|
%]
|
Fourth
Anniversary of the Date of Grant
|
|
|
[
|
%]
|
(b)
All
options shall immediately and fully vest and become exercisable if the
Participant’s employment is terminated by the Company without Cause or the
Participant voluntarily quits for good reason. For this purpose, the
Participant will be deemed to have “good reason” to voluntarily terminate
employment if there is a reduction in his or her base salary; a material
reduction in his or her authority, duties, or responsibilities; or a material
change in the geographic location at which he or she must perform
services.
3.
Exercise of
Option
.
(a)
Period of Exercise
.
Subject to the provisions of the Plan and this Agreement, the Participant may
exercise all or any part of the Vested Portion of the Option at any time prior
to the
earliest
to occur of:
(i) the
seventh anniversary of the Date of Grant;
(ii) one
year following the date of the Participant’s termination of Employment due to
death or Disability;
(iii) three
months following the date of the Participant’s termination of Employment by the
Company without Cause or by the Participant for good reason (as defined above);
and
(iv) the
date of the Participant’s termination of Employment by the Company for Cause or
by the Participant for any reason or by the Participant for good reason (as
defined above), death or Disability.
For
purposes of this agreement, “
Cause
” shall mean
“Cause” as defined in any employment agreement then in effect between the
Participant and the Company or if not defined therein or, if there shall be no
such agreement, (i) the willful failure or refusal by such Participant to
perform his or her duties to the Company or its Affiliates (other than any such
failure resulting from such Participant’s incapacity due to physical or mental
illness), which has not ceased within ten days after a written demand for
substantial performance is delivered to such Participant by the Company, which
demand identifies the manner in which the Company believes that such Participant
has not performed such duties; (ii) the willful engaging by such Participant in
misconduct which is materially injurious to the Company or its Affiliates,
monetarily or otherwise (including breach of any confidentiality or
non-competition covenants to which such Participant is bound); (iii) the
conviction of such Participant of, or the entering of a plea of nolo contendere
by such Participant with respect to, a felony or to any crime which is
materially injurious to the Company or its Affiliates; or (iv) substantial or
repeated acts of dishonesty by such Participant in the performance of his/her
duties to the Company or its Affiliates. The determination of the existence of
Cause shall be made by the Committee in good faith.
(b)
Method of
Exercise
.
(i)
Subject to Section 3(a), the Vested Portion of the Option may be exercised by
delivering to the Company at its principal office written notice of intent to so
exercise;
provided
that, the
Option may be exercised with respect to whole Shares only. Such notice shall
specify the number of Shares for which the Option is being exercised and shall
be accompanied by payment in full of the Option Price. The payment of the
Option Price may be made at the election of the Participant (i) in cash or its
equivalent (e.g., by check), (ii) to the extent permitted by the Committee, in
Shares having a Fair Market Value equal to the aggregate Option Price for the
Shares being purchased and satisfying such other requirements as may be imposed
by the Committee; provided, that such Shares have been held by the Participant
for no less than six months (or such other period as established from time to
time by the Committee in order to avoid adverse accounting treatment applying
generally accepted accounting principles), (iii) partly in cash and, to the
extent permitted by the Committee, partly in such Shares, (iv) if there is a
public market for the Shares at such time, through the delivery of irrevocable
instructions to a broker to sell Shares obtained upon the exercise of the Option
and to deliver promptly to the Company an amount out of the proceeds of such
Sale equal to the aggregate option price for the Shares being purchased, or (v)
through a “net settlement” as described in Section 6(c) of the Plan. No
Participant shall have any rights to dividends or other rights of a stockholder
with respect to Shares subject to an Option until the Participant has given
written notice of exercise of the Option, paid in full for such Shares and, if
applicable, has satisfied any other conditions imposed by the Committee pursuant
to the Plan.
(ii)
Notwithstanding any other provision of the Plan or this Agreement to the
contrary, the Option may not be exercised prior to the completion of any
registration or qualification of the Option or the Shares under applicable state
and federal securities or other laws, or under any ruling or regulation of any
governmental body or national securities exchange that the Committee shall in
its sole discretion determine to be necessary or advisable.
(iii)
Upon the Company’s determination that the Option has been validly exercised as
to any of the Shares, the Company shall issue certificates in the Participant’s
name for such Shares. However, the Company shall not be liable to the
Participant for damages relating to any delays in issuing the certificates to
him, any loss of the certificates, or any mistakes or errors in the issuance of
the certificates or in the certificates themselves.
(iv) In
the event of the Participant’s death, the Vested Portion of the Option shall
remain exercisable by the Participant’s executor or administrator, or the person
or persons to whom the Participant’s rights under this Agreement shall pass by
will or by the laws of descent and distribution as the case may be, to the
extent set forth in Section 3(a). Any heir or legatee of the Participant shall
take rights herein granted subject to the terms and conditions
hereof.
4.
Change of
Control
. Upon a Change of Control (as defined by the Plan), the
terms of the Plan shall apply. Notwithstanding the foregoing, the Options
granted hereby shall become immediately exercisable in full upon the occurrence
of a Change of Control.
5.
Option
Recovery
. If the Committee determines that the Participant (a) engaged
in conduct that constituted Cause as defined in Section 3(a) of this Agreement
at any prior to the Participant’s termination of services, (b) engaged in
conduct during the 6 month period after the Participant’s termination of
services that would have constituted Cause if the Participant had not ceased to
provide services, or (c) violates the terms of any non-compete agreement,
non-solicitation agreement, confidentiality agreement, or any other restriction
on the Participant’s post-termination activities established under any agreement
with the Company or other Company policy or arrangement during the 6 months
after the Participant’s ceases to provide services to the Company, then (i) any
Option held by the Participant shall immediately terminate, and the Participant
shall automatically forfeit all Shares underlying any exercised portion of an
Option for which the Company has not yet delivered the Share certificates, upon
refund by the Company of the Exercise Price paid by the Participant for such
Shares and (ii) the Participant shall return any Shares received upon exercise
of this Option or repay to the Company any proceeds received from the sale of
other disposition of the Shares transferred pursuant to this Option less the
Exercise Price. Upon any exercise of an Option, the Company may withhold
delivery of share certificates pending resolution of an inquiry that could lead
to a finding resulting in a forfeiture under this Section.
6.
No Right to Continued
Employment
. The granting of the Option evidenced hereby and this
Agreement shall impose no obligation on the Company or any Affiliate to continue
the Employment of the Participant and shall not lessen or affect the Company’s
or its Affiliate’s right to terminate the Employment of such
Participant.
7.
Legend on
Certificates
. The certificates representing the Shares purchased by
exercise of the Option shall be subject to the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange upon
which such Shares are listed, and any applicable Federal or state laws, and the
Committee may cause a legend or legends to be put on any such certificates to
make appropriate reference to such restrictions.
8.
Transferability
. The
Option may not be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by the Participant otherwise than by will or by the
laws of descent and distribution, and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be void and
unenforceable against the Company or any Affiliate; provided that the
designation of a beneficiary shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance. No such permitted transfer
of the Option to heirs or legatees of the Participant shall be effective to bind
the Company unless the Committee shall have been furnished with written notice
thereof and a copy of such evidence as the Committee may deem necessary to
establish the validity of the transfer and the acceptance by the transferee or
transferees of the terms and conditions hereof. During the Participant’s
lifetime, the Option is exercisable only by the Participant.
9.
Withholding
. The
Participant may be required to pay to the Company or any Affiliate and the
Company shall have the right and is hereby authorized to withhold, any
applicable withholding taxes in respect of the Option, its exercise or any
payment or transfer under or with respect to the Option and to take such other
action as may be necessary in the opinion of the Committee to satisfy all
obligations for the payment of such withholding taxes.
10.
Securities
Laws
. Upon the acquisition of any Shares pursuant to the
exercise of the Option, the Participant will make or enter into such written
representations, warranties and agreements as the Committee may reasonably
request in order to comply with applicable securities laws or with this
Agreement.
11.
Notices
. Any
notice necessary under this Agreement shall be addressed to the Company in care
of its Secretary at the principal executive office of the Company and to the
Participant at the address appearing in the personnel records of the Company for
the Participant or to either party at such other address as either party hereto
may hereafter designate in writing to the other. Any such notice
shall be deemed effective upon receipt thereof by the addressee.
12.
Choice of
Law
. This Agreement shall be governed by and construed in
accordance with the laws of the state of Delaware without regard to conflicts of
laws.
13.
Option Subject to
Plan
. By entering into this Agreement the Participant agrees
and acknowledges that the Participant has received and read a copy of the
Plan. The Option is subject to the Plan. The terms and
provisions of the Plan, as they may be amended from time to time, are hereby
incorporated herein by reference. In the event of a conflict between
any term or provision contained herein and a term or provision of the Plan, the
applicable terms and provisions of the Plan will govern and
prevail.
14.
Signature in
Counterparts
. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
[
Signatures on next
page.
]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be effective as of
the day and year first above written.
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The
Quigley Corporation
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Name:
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Title:
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Participant
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Name:
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Title:
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2010
DIRECTORS’
EQUITY COMPENSATION PLAN
OPTION AWARD
AGREEMENT
THIS
AGREEMENT (the “
Agreement
”), is made
effective as of the
[DAY]
day of
[MONTH]
,
[YEAR]
, (hereinafter called
the “
Date of
Grant
”), between The Quigley Corporation, a Delaware corporation
(hereinafter called the “
Company
”), and
[NAME]
(hereinafter called the
“
Participant
”):
RECITALS
:
WHEREAS,
the Company has adopted The Quigley Corporation 2010 Directors’ Equity
Compensation Plan (the “
Plan
”), which Plan is
incorporated herein by reference and made a part of this
Agreement. Capitalized terms not otherwise defined herein shall have
the same meanings as in the Plan; and
WHEREAS,
the Committee has determined that it would be in the best interests of the
Company and its shareholders to grant the option provided for herein to the
Participant pursuant to the Plan and the terms set forth herein.
NOW
THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
parties agree as follows:
1.
Grant of the
Option
. The Company hereby grants to the Participant the right
and option (the “
Option
”) to purchase,
on the terms and conditions hereinafter set forth, all or any part of an
aggregate of
[# OF SHARES]
Shares, subject to adjustment as set forth in the Plan. The
purchase price of the Shares subject to the Option shall be $
[PRICE]
per Share (the “
Option
Price
”). The Option is intended to be a non-qualified stock
option, and is not intended to be treated as an option that complies with
Section 422 of the Internal Revenue Code of 1986, as amended.
2.
Vesting
.
(a) All
Options granted pursuant to the Plan shall vest and become exercisable in
accordance with the following schedule:
First
Anniversary of the Date of Grant
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[
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%]
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Second
Anniversary of the Date of Grant
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[
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%]
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Third
Anniversary of the Date of Grant
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[
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%]
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Fourth
Anniversary of the Date of Grant
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[
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%]
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3.
Exercise of
Option
.
(a)
Period of
Exercise
. Subject to the provisions of the Plan and this
Agreement, the Participant may exercise all or any part of the Vested Portion of
the Option at any time prior to the
earliest
to occur
of:
(i) the
seventh anniversary of the Date of Grant;
(ii) one
year following the date of the Participant’s separation from service due to
death or Disability;
(iii) three
months following the date of the Participant’s separation from service with the
Company without Cause ; and
(iv) the
date of the Participant’s separation from service with the Company for Cause or
by the Participant for any reason or by the Participant for death or
Disability.
For
purposes of this agreement, “
Cause
” shall mean (i)
the willful failure or refusal by such Participant to perform his or her duties
to the Company or its Affiliates (other than any such failure resulting from
such Participant’s incapacity due to physical or mental illness), which has not
ceased within ten days after a written demand for substantial performance is
delivered to such Participant by the Company, which demand identifies the manner
in which the Company believes that such Participant has not performed such
duties; (ii) the willful engaging by such Participant in misconduct which is
materially injurious to the Company or its Affiliates, monetarily or otherwise
(including breach of any confidentiality or non-competition covenants to which
such Participant is bound); (iii) the conviction of such Participant of, or the
entering of a plea of nolo contendere by such Participant with respect to, a
felony or to any crime which is materially injurious to the Company or its
Affiliates; or (iv) substantial or repeated acts of dishonesty by such
Participant in the performance of his/her duties to the Company or its
Affiliates. The determination of the existence of Cause shall be made by the
remainder of the Board in good faith.
(b)
Method of
Exercise
.
(i) Subject
to Section 3(a), the Vested Portion of the Option may be exercised by delivering
to the Company at its principal office written notice of intent to so exercise;
provided
that,
the Option may be exercised with respect to whole Shares only. Such
notice shall specify the number of Shares for which the Option is being
exercised and shall be accompanied by payment in full of the Option
Price. The payment of the Option Price may be made at the election of
the Participant (i) in cash or its equivalent (e.g., by check), (ii) to the
extent permitted by the Committee, in Shares having a Fair Market Value equal to
the aggregate Option Price for the Shares being purchased and satisfying such
other requirements as may be imposed by the Committee; provided, that such
Shares have been held by the Participant for no less than six months (or such
other period as established from time to time by the Committee in order to avoid
adverse accounting treatment applying generally accepted accounting principles),
(iii) partly in cash and, to the extent permitted by the Committee, partly in
such Shares, (iv) if there is a public market for the Shares at such time,
through the delivery of irrevocable instructions to a broker to sell Shares
obtained upon the exercise of the Option and to deliver promptly to the Company
an amount out of the proceeds of such Sale equal to the aggregate option price
for the Shares being purchased, or (v) through a “net settlement” as described
in Section 6(c) of the Plan. No Participant shall have any rights to
dividends or other rights of a stockholder with respect to Shares subject to an
Option until the Participant has given written notice of exercise of the Option,
paid in full for such Shares and, if applicable, has satisfied any other
conditions imposed by the Committee pursuant to the Plan.
(ii) Notwithstanding
any other provision of the Plan or this Agreement to the contrary, the Option
may not be exercised prior to the completion of any registration or
qualification of the Option or the Shares under applicable state and federal
securities or other laws, or under any ruling or regulation of any governmental
body or national securities exchange that the Committee shall in its sole
discretion determine to be necessary or advisable.
(iii) Upon
the Company’s determination that the Option has been validly exercised as to any
of the Shares, the Company shall issue certificates in the Participant’s name
for such Shares. However, the Company shall not be liable to the
Participant for damages relating to any delays in issuing the certificates to
him, any loss of the certificates, or any mistakes or errors in the issuance of
the certificates or in the certificates themselves.
(iv) In
the event of the Participant’s death, the Vested Portion of the Option shall
remain exercisable by the Participant’s executor or administrator, or the person
or persons to whom the Participant’s rights under this Agreement shall pass by
will or by the laws of descent and distribution as the case may be, to the
extent set forth in Section 3(a). Any heir or legatee of the
Participant shall take rights herein granted subject to the terms and conditions
hereof.
4.
Change of
Control
. Upon a Change of Control (as defined by the Plan),
the terms of the Plan shall apply. Notwithstanding the foregoing, the
Options granted hereby shall become immediately exercisable in full upon the
occurrence of a Change of Control.
5.
Option
Recovery
. If the Committee determines that the Participant (a)
engaged in conduct that constituted Cause as defined in Section 3(a) of this
Agreement at any prior to the Participant’s termination of services, (b) engaged
in conduct during the 6 month period after the Participant’s termination of
services that would have constituted Cause if the Participant had not ceased to
provide services, or (c) violates the terms of any non-compete agreement,
non-solicitation agreement, confidentiality agreement, or any other restriction
on the Participant’s post-termination activities established under any agreement
with the Company or other Company policy or arrangement during the 6 months
after the Participant’s ceases to provide services to the Company, then (i) any
Option held by the Participant shall immediately terminate, and the Participant
shall automatically forfeit all Shares underlying any exercised portion of an
Option for which the Company has not yet delivered the Share certificates, upon
refund by the Company of the Exercise Price paid by the Participant for such
Shares and (ii) the Participant shall return any Shares received upon exercise
of this Option or repay to the Company any proceeds received from the sale of
other disposition of the Shares transferred pursuant to this Option less the
Exercise Price. Upon any exercise of an Option, the Company may
withhold delivery of share certificates pending resolution of an inquiry that
could lead to a finding resulting in a forfeiture under this
Section.
6.
Legend on
Certificates
. The certificates representing the Shares
purchased by exercise of the Option shall be subject to the rules, regulations,
and other requirements of the Securities and Exchange Commission, any stock
exchange upon which such Shares are listed, and any applicable Federal or state
laws, and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
7.
Transferability
. The
Option may not be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by the Participant otherwise than by will or by the
laws of descent and distribution, and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be void and
unenforceable against the Company or any Affiliate; provided that the
designation of a beneficiary shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance. No such permitted
transfer of the Option to heirs or legatees of the Participant shall be
effective to bind the Company unless the Committee shall have been furnished
with written notice thereof and a copy of such evidence as the Committee may
deem necessary to establish the validity of the transfer and the acceptance by
the transferee or transferees of the terms and conditions
hereof. During the Participant’s lifetime, the Option is exercisable
only by the Participant.
8.
Securities
Laws
. Upon the acquisition of any Shares pursuant to the
exercise of the Option, the Participant will make or enter into such written
representations, warranties and agreements as the Committee may reasonably
request in order to comply with applicable securities laws or with this
Agreement.
9.
Notices
. Any
notice necessary under this Agreement shall be addressed to the Company in care
of its Secretary at the principal executive office of the Company and to the
Participant at the address appearing in the personnel records of the Company for
the Participant or to either party at such other address as either party hereto
may hereafter designate in writing to the other. Any such notice
shall be deemed effective upon receipt thereof by the addressee.
10.
Choice of
Law
. This Agreement shall be governed by and construed in
accordance with the laws of the state of Delaware without regard to conflicts of
laws.
11.
Option Subject to
Plan
. By entering into this Agreement the Participant agrees
and acknowledges that the Participant has received and read a copy of the
Plan. The Option is subject to the Plan. The terms and
provisions of the Plan, as they may be amended from time to time, are hereby
incorporated herein by reference. In the event of a conflict between
any term or provision contained herein and a term or provision of the Plan, the
applicable terms and provisions of the Plan will govern and
prevail.
12.
Signature in
Counterparts
. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
[
Signatures on next
page.
]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be effective as of
the day and year first above written.
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The
Quigley Corporation
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Name:
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Title:
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Participant
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Name:
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Title:
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THE
QUIGLEY CORPORATION
2010
DIRECTORS’ EQUITY COMPENSATION PLAN
RESTRICTED
STOCK AWARD AGREEMENT
This
RESTRICTED
STOCK AWARD
GRANT AGREEMENT
(the
“Agreement”), is made effective as of the
[DAY]
day of
[MONTH]
,
[YEAR]
(the “Date of Grant”),
is delivered by The Quigley Corporation, a Delaware corporation (the “Company”),
to
[GRANTEE NAME]
(the
“Grantee”).
RECITALS
A.
The Quigley Corporation 2010 Directors’ Equity Compensation Plan (the
“Plan”) provides for the grant of restricted stock in accordance with the terms
and conditions of the Plan. The Company has decided to make a
restricted stock grant as an inducement for the Grantee to promote the best
interests of the Company and its stockholders. A copy of the Plan is
attached.
B. The
Plan is administered by the Compensation Committee of the Board of Directors of
the Company (the “Committee”).
NOW, THEREFORE
, the parties to
this Agreement, intending to be legally bound hereby, agree as
follows:
1.
Restricted
Stock Grant
. Subject to the terms and conditions set forth in
this Agreement and the Plan, the Company hereby grants to the Grantee
[# of SHARES]
shares of common
stock of the Company, subject to the restrictions set forth below and in the
Plan (“Restricted Stock”). Shares of Restricted Stock may not be
transferred by the Grantee or subjected to any security interest until the
shares have become vested pursuant to this Agreement and the Plan.
2.
Vesting
and Nonassignability of Restricted Stock
.
The
shares of Restricted Stock shall become vested, and the restrictions described
in Sections 2(b) and 2(c) shall lapse, in the manner provided below, if the
Grantee continues to provide service to the Employer (as defined in the Plan)
from the Date of Grant until the applicable vesting date. For this
purpose, the term “Shares” refers to the number of shares underlying that
portion of the Award that vests in the manner described under Vest Type and Full
Vest Date. The term “Vest Type” describes how those shares will vest
before the Full Vest Date. For example, if Vest Type is “monthly”,
those shares will vest on a pro rata basis on each monthly anniversary of the
Date of Grant. The term “Full Vest Date” is the date on which the
shares will be fully vested.
Shares
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Vest
Type
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Full
Vest Date
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(a) If
the Grantee’s service with the Employer terminates for any reason before the
Restricted Stock is fully vested, the shares of Restricted Stock that are not
then vested shall be forfeited and must be immediately returned to the
Company.
(b) During
the period before the shares of Restricted Stock vest (the “Restriction
Period”), the non-vested Restricted Stock may not be assigned, transferred,
pledged or otherwise disposed of by the Grantee. Any attempt to
assign, transfer, pledge or otherwise dispose of the shares contrary to the
provisions hereof, and the levy of any execution, attachment or similar process
upon the shares, shall be null, void and without effect.
(c) The
vesting of the Grant is cumulative, but shall not exceed one hundred percent
(100%) of the Shares subject to the Grant. If the foregoing schedule
would produce fractional Shares, the number of Shares for which the Grant vests
shall be rounded down to the nearest whole Share.
3.
Issuance
of Certificates
.
(a) Stock
certificates representing the Restricted Stock may be issued by the Company and
held in escrow by the Company until the Restricted Stock vests, or the Company
may hold non-certificated shares until the Restricted Stock vests. In
the event of a dividend or distribution payable in stock or other property or a
reclassification, split up or similar event during the Restriction Period, the
shares or other property issued or declared with respect to the non-vested
shares of Restricted Stock shall be subject to the same terms and conditions
relating to vesting as the shares to which they relate.
(b) When
the Grantee obtains a vested right to shares of Restricted Stock, a certificate
representing the vested shares shall be issued to the Grantee, free of the
restrictions under Paragraph 2 of this Agreement.
(c) The
obligation of the Company to deliver shares upon the vesting of the Restricted
Stock shall be subject to all applicable laws, rules, and regulations and such
approvals by governmental agencies as may be deemed appropriately to comply with
relevant securities laws and regulations.
4.
Change in
Control
. The provisions of the Plan applicable to a Change in
Control (as defined in the Plan) shall apply to the Restricted
Stock.
5.
Grant
Subject to Plan Provisions
. This grant is made pursuant to the
Plan, the terms of which are incorporated herein by reference, and in all
respects shall be interpreted in accordance with the Plan. The grant
is subject to interpretations, regulations and determinations concerning the
Plan established from time to time by the Committee in accordance with the
provisions of the Plan, including, but not limited to, provisions pertaining to
(i) rights and obligations with respect to withholding taxes, (ii) the
registration, qualification or listing of the shares, (iii) changes in
capitalization of the Company, and (iv) other requirements of applicable
law. The Committee shall have the authority to interpret and construe
the grant pursuant to the terms of the Plan, and its decisions shall be
conclusive as to any questions arising hereunder.
6.
Assignment
by Company
. The rights and protections of the Company
hereunder shall extend to any successors or assigns of the Company and to the
Company’s parents, subsidiaries, and affiliates. This Agreement may
be assigned by the Company without the Grantee’s consent.
7.
Applicable
Law
. The validity, construction, interpretation and effect of
this Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware, without giving effect to the conflicts of laws provisions
thereof.
8.
Notice
. Any
notice to the Company provided for in this Agreement shall be addressed to the
Company in care of the Compensation Committee at
[INSERT ADDRESS]
and any
notice to the Grantee shall be addressed to such Grantee at the current address
shown on the payroll of the Employer, or to such other address as the Grantee
may designate to the Employer in writing. Any notice shall be
delivered by hand, sent by facsimile or enclosed in a properly sealed envelope
addressed as stated above deposited, postage prepaid, in a post office regularly
maintained by the United States Postal Service.
[
Signatures on next
page.
]
IN WITNESS WHEREOF
, the
Company has caused its duly authorized officer to execute this Agreement, and
the Grantee has placed his or her signature hereon, effective as of the Date of
Grant.
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THE
QUIGLEY CORPORATION
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By:
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Name:
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Title:
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I hereby
accept the grant of Restricted Stock described in this Agreement, and I agree to
be bound by the terms of the Plan and this Agreement. I hereby
further agree that all the decisions and determinations of the Committee shall
be final and binding.
The
Quigley Corporation Shareholders Approve Name Change to ProPhase Labs,
Inc.
Shareholders
also approve four additional key proposals, all by substantial
majority
DOYLESTOWN,
Pennsylvania – May 6, 2010. The Quigley Corporation (Nasdaq: QGLY) held its
annual shareholder meeting on Wednesday, May 5, 2010 in Doylestown,
Pennsylvania. During the meeting, shareholders voted to change the name of the
corporation to ProPhase Labs, Inc. In addition to the new corporate name, the
ticker symbol of the company will change to Nasdaq: PRPH. The changes in the
name and ticker are expected to become effective o
n May 6 and
May 7, 2010, respectively. The new corporate website will be
www.prophaselabs.com. The Quigley Corporation is well known as the
manufacturer and distributor of Cold-EEZE(R), Kids-EEZE(R) and other OTC
healthcare remedies. The name change reflects favorable changes in management
and direction that have taken place during the past year.
The name
change was one of five proposals overwhelmingly approved by a substantial
majority of the shareholders who voted. The other four proposals
include:
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·
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Re-election
of the seven members of the Board of
Directors
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·
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The
ratification of the 2010 Equity Compensation
Plan
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·
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The
ratification of the 2010 Directors’ Equity Compensation
Plan
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·
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The
ratification of Amper, Politziner & Mattia, LLP as our independent
registered public accounting firm for the fiscal year ending December 31,
2010
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“The vote
was a culmination and affirmation of more than a year of very hard work,” said
CEO Ted Karkus. “The shareholder support for our team is very much
appreciated. Our new identity sets the stage for a new growth phase for
our Company by improving our image with our important retailers as well as with
investors.”
The
roll-out of the corporate identity change to “ProPhase Labs” will occur over the
next 6-8 weeks. Other aspects of the new corporate name and identity
will include a new corporate logo, and improved product Cold-EEZE(R), and
Kids-EEZE(R)
packaging.
About
The Quigley Corporation
The
Quigley Corporation is a diversified natural health medical science company. It
is a leading marketer and manufacturer of the Cold-EEZE(R) family of lozenges
and sugar free tablets clinically proven to significantly reduce the severity
and duration of the common cold. Cold-EEZE(R) customers include leading national
wholesalers and distributors, as well as independent and chain food, drug and
mass merchandise stores and pharmacies. The Quigley Corporation has several
wholly owned subsidiaries including Quigley Manufacturing Inc., which consists
of an FDA approved facility to manufacture Cold-EEZE(R) lozenges and fulfill
other contract manufacturing opportunities, and Quigley Pharma, Inc., which
conducts research in order to develop and commercialize a pipeline of patented
botanical and naturally derived potential prescription drugs. For more
information visit us at www.Quigleyco.com.
Forward-Looking
Statements
Certain
statements in this press release are “forward-looking statements” and involve
known and unknown risk, uncertainties and other factors that may cause the
Company’s actual performance or achievements to be materially different from the
results, performance or achievements expressed or implied by the forward-looking
statement. Factors that impact such forward-looking statements include, among
others, changes in worldwide general economic conditions; government
regulations; the ability of our new management to successfully implement our
business plan and strategy; our ability to fund our operations including the
cost and availability of capital and credit; our ability to compete effectively
including our ability to maintain and increase our market share in the markets
in which we do business; and our dependence on sales from our main product,
Cold-EEZE(R), and our ability to successfully develop and commercialize new
products.
CONTACT
Media
Relations
The
Lexicomm Group
Wendi
Tush
Wendi@lexicommgroup.com
(212)
794-4531
Lindsey
Gardner
Lgardner651@gmail.com
(570)
479-4895
Investor
Relations
Ted
Karkus
Chairman
and CEO
The
Quigley Corporation
(215)
345-0919 x 0