Opinion
Civil No. 2:03 CV0914K
December 22, 2003
Thomas M. Melton, Karen L. Martinez, Salt Lake City, Utah, for Plaintiff
ORDER OF PRELIMINARY INJUNCTION AND OTHER RELIEF AGAINST NCI HOLDINGS, INC.
This matter came before the Court on December 22, 2003, for a hearing on the Plaintiff's Motion for Preliminary Injunction against NCI Holdings, Inc. (the "Defendant"), pursuant to Fed.R.Civ.P. 65(a). The Court had previously issued an ex parte temporary restraining order, asset freeze, and other relief against the Defendant on October 16, 2003. After examining the pleadings and documents, and hearing oral arguments, this Court finds as follows:
1. This Court has jurisdiction over the subject matter of this action and over the Defendant;
2. Adequate and sufficient notice has been given to the Defendant of the date time and place of the hearing on this matter;
3. The Plaintiff has established a prima facie case that Defendant has violated Section 17(a) of the Securities Act of 1933;
4. The Plaintiff has established a prima facie case that Defendant has violated Section 10(b) of the Securities Exchange Act of 1934;
5. The Plaintiff has established a prima facie case that Defendant has violated Section 13(a) of the Exchange Act and Rules 12b-20, 13a-11 and 13a-13
6. The Plaintiff has established a prima facie case that Defendant is likely to violate the securities laws in the future.
7. The Plaintiff has previously established a prima facie case that a Preliminary Injunction is appropriate and necessary under the circumstances;
8. A Preliminary Injunction Order should be entered against the Defendant enjoining the Defendant as provided hereafter.
I.
IT IS ORDERED that Defendant, Defendant's officers, agents, servants, employees, attorneys and those persons in active concert or participation with it, who receive actual notice of this Order by personal service or otherwise, and each of them, be and hereby are preliminarily enjoined from, directly or indirectly, in the offer or sale of any security, by the use of the means or instruments of transportation or communication in interstate commerce or by the use of the mails, employing devices, schemes or artifices to defraud; obtaining money or property by means of untrue statements of material facts or omitting to state material facts necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or engaging in transactions, practices or courses of business which operate or would operate as a fraud or deceit upon purchasers or prospective purchasers of any security, in violation of Section 17(a) of the Securities Act [ 15 U.S.C. § 77q(a)].II.
IT IS FURTHER ORDERED that Defendant, Defendant's officers, agents, servants, employees, attorneys and those persons in active concert or participation with it, who receive actual notice of this Order by personal service or otherwise, and each of them, be and hereby are preliminarily enjoined from, directly or indirectly, as principals or aiders and abettors, in connection with the purchase or sale of any security, by the use of the means or instrumentalities of interstate commerce or of the mails, employing devices, schemes or artifices to defraud; making untrue statements of material facts or omitting to state material facts necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or engaging in acts, practices or courses of business which operated or will operate as a fraud or deceit upon purchasers or sellers or prospective purchasers or sellers of any security, in violation of Section 10(b) of the Exchange Act [ 15 U.S.C. § 78j(b)] and Rule 10b-5 [ 17 C.F.R. § 240.10b-5] promulgated thereunder.
III.
IT IS FURTHER ORDERED that Defendant, Defendant's officers, agents, servants, employees, attorneys, and those persons in active concert or participation with it who receive actual notice of this Order by personal service or otherwise, and each of them, be and hereby are preliminarily enjoined from aiding and abetting, directly or indirectly, violations of Section 13(a) of the Exchange Act and Rules 12b-20, 13a-11 and 13a-13, thereunder by filing or causing to be filed with the Commission any annual or quarterly report on behalf of NCIH, or any other issuer, required to be filed with the Commission pursuant to Section 13(a) of the Exchange Act [ 15 U.S.C. § 78m(a)] and the rules and regulations promulgated thereunder, which contains any untrue statement of material fact, which omits to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, and which omits to disclose any information required to be disclosed.
IV.
IT IS FURTHER ORDERED, that the Order granting asset freeze, and prohibiting the destruction, concealment, alteration, disposition or mutilation of documents, entered by this Court on October 16, 2003, shall be continued until further Order of this Court.
V.
IT IS FURTHER ORDERED, that this Court shall retain jurisdiction over this action for the purposes of implementing and carrying out the terms of all orders and decrees which may be entered herein and to entertain any suitable application or motion for additional relief within the jurisdiction of this Court.