Exhibit 10.1
BROKER'S NAME: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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IMPORTANT: PLEASE READ CAREFULLY BEFORE SIGNING.
SIGNIFICANT REPRESENTATIONS ARE CALLED FOR HEREIN.
SUBSCRIPTION AGREEMENT
and
LETTER OF INVESTMENT INTENT
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6% CONVERTIBLE SERIES C PREFERRED STOCK
of
ATC HEALTHCARE, INC.
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ATC Healthcare, Inc.
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▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
The undersigned (the "Subscriber") hereby tenders this subscription for
the purchase of securities (the "Securities") of ATC Healthcare, Inc. (the
"Company"), consisting of units ("Units") comprising certain 6% Convertible
Series C Preferred Stock ("Stock") and common stock purchase warrants
("Warrants"). The Units are described in the Summary of Terms attached to this
Subscription Agreement as Exhibit A (the "Term Sheet"). The Subscriber
understands that a subscription for the Units may be rejected for any reason and
that, in the event that this subscription is rejected, the funds delivered
herewith will be promptly returned, without interest thereon or deduction
therefrom. By execution below, the Subscriber acknowledges that the Company is
relying upon the accuracy and completeness of the representations contained
herein in complying with their obligations under applicable securities laws.
1. Subscription Commitment. The Subscriber acknowledges that the
minimum subscription is Fifty Thousand Seventeen and 50/100 Dollars
($50,017.50). The Subscriber hereby subscribes for the purchase of the number of
Securities specified below and, as full payment therefor, agrees to pay by wire
transfer to the account of the Company the amount specified below.
500 Shares Series C Preferred Stock At $1.35 per Unit for an Warrants
to Purchase 741,000 Shares of Common Stock aggregate of $1,000,350.00
The Subscriber understands that this subscription is not binding on the
Company until accepted by the Company, which acceptance is at the discretion of
the Company and is to be evidenced by the Company's execution of this
Subscription Agreement where indicated. If the subscription is rejected, the
Company shall return to the Subscriber, without interest or deduction, any
payment tendered by the Subscriber, and the Company and the Subscriber shall
have no further obligation to each other hereunder. Unless and until rejected by
the Company, this subscription shall be irrevocable by the Subscriber. The
Subscriber understands that the Company may, in the event that the offering to
which the Term Sheet relates is oversubscribed, reduce this subscription in any
amount and to any extent, whether or not pro rata reductions are made of any
other investor's subscription.
2. Subscriber's Representations and Warranties. In order to induce the
Company to accept this subscription, the Subscriber hereby represents and
warrants to, and covenants with, the Company as follows:
(a) The Subscriber has had the opportunity to review the following
filings with the Securities and Exchange Commission by the Company (the "SEC
Filings"):
(i) The Company's Annual Report on Form 10-K/A, filed with the
SEC on September 26, 2005; and
(ii) The Company's Quarterly Report on Form 10-Q, filed with the
SEC on January 17, 2006;
(ii) The Company's Proxy Statement on Schedule 14A, filed with
the SEC on June 28, 2005.
The Subscriber has also been given access to full and complete information
regarding the Company and has utilized such access to the Subscriber's
satisfaction for the purpose of obtaining such information regarding the Company
as the Subscriber has reasonably requested; and, particularly, the Subscriber
has been given reasonable opportunity to ask questions of, and receive answers
from, representatives of the Company concerning the terms and conditions of the
offering of the Securities and to obtain any additional information, to the
extent reasonably available;
(b) Except for the SEC Filings, the Term Sheet and certain other
documents as listed on Exhibit B hereto (the SEC Filings, Term Sheet and other
documents listed on Exhibit B together referred to as the "Documents"), the
Subscriber has not been furnished with any other materials or literature
relating to the offer and sale of the Securities; except as set forth in the
Documents, no representations or warranties have been made to the Subscriber by
the Company, any selling agent of the Company, or any agent, employee, or
affiliate of the Company or such selling agent.
(c) The Subscriber acknowledges that certain of the documents or
information referenced on Exhibit B attached to this Subscription Agreement may
contain forward-looking statements that are prone to substantial risks and
uncertainties. These forward-looking statements are not historical facts, but
are based on the Company's current expectations, estimates and projections about
its industry, its beliefs, and its assumptions. Words such as "anticipates,"
"believes," "expects," "plans," "future," "projections," and "forecasted" are
intended to identify forward-looking statements. The Subscriber further
acknowledges that these statements are not guarantees of future performance and
are subject to various risks, uncertainties and other factors, some of which are
beyond the Company's control and difficult to predict, and could cause actual
results to differ materially from those expressed or forecasted in the
forward-looking statements. These forward-looking statements reflect the
Company's view only as of the date of the particular document in which they are
contained.
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(d) The Subscriber believes that an investment in the securities is
suitable for the Subscriber based upon the Subscriber's investment objectives
and financial needs. The Subscriber (i) has adequate means for providing for the
Subscriber's current financial needs and personal contingencies; (ii) has no
need for liquidity in this investment; (iii) at the present time, can afford a
complete loss of such investment; and (iv) does not have an overall commitment
to investments which are not readily marketable that is disproportionate to the
Subscriber's net worth, and the Subscriber's investment in the Securities will
not cause such overall commitment to become excessive.
(e) The Subscriber, in reaching a decision to subscribe, has such
knowledge and experience in financial and business matters that the Subscriber
is capable of reading and interpreting financial statements and evaluating the
merits and risk of an investment in the Securities and has the net worth to
undertake such risks.
(f) The Subscriber was not offered or sold the Securities, directly or
indirectly, by means of any form of general advertising or general solicitation,
including, but not limited to, the following: (1) any advertisement, article,
notice or other communication published in any newspaper, magazine, or similar
medium of or broadcast over television or radio; or (2) to the knowledge of the
undersigned, any seminar or meeting whose attendees had been invited by any
general solicitation or general advertising.
(g) The Subscriber has obtained, to the extent the Subscriber deems
necessary, the Subscriber's own personal professional advice with respect to the
risks inherent in the investment in the securities, and the suitability of an
investment in the Securities in light of the Subscriber's financial condition
and investment needs;
(h) The Subscriber recognizes that the Securities as an investment
involves a high degree of risk.
(i) The information contained in this agreement is true, complete and
correct in all material respects as of the date hereof; the Subscriber
understands that the Company's determination that the exemption from the
registration provisions of the Securities Act of 1933, as amended (the "Act"),
which is based upon non-public offerings and applicable to the offer and sale of
the Securities, is based, in part, upon the representations, warranties, and
agreements made by the Subscriber herein; and the Subscriber consents to the
disclosure of any such information, and any other information furnished to the
Company, to any governmental authority, self-regulatory organization, or, to the
extent required by law, to any other person.
(j) The Subscriber realizes that (i) the purchase of the Securities is
a long-term investment; (ii) the purchaser of the Securities must bear the
economic risk of investment for an indefinite period of time because the
Securities have not been registered under the Securities Act of 1933 or under
the securities laws of any state and, therefore, the Securities cannot be resold
unless they are subsequently registered under said laws or exemptions from such
registrations are available; and (iii) the transferability of the Securities is
restricted and (A) requires conformity with the restrictions contained in
paragraph 2 below and (B) legends will be placed on the certificate(s)
representing the Securities referring to the applicable restrictions on
transferability; and
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(k) The Subscriber certifies, under penalties of perjury, that the
Subscriber is NOT subject to the backup withholding provisions of Section
3406(a)(i)(C) of the Internal Revenue Code.
(l) Stop transfer instructions will be placed with the transfer agent
for the Securities, and a legend may be placed on any certificate representing
the Securities substantially to the following effect:
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), IN
RELIANCE UPON THE EXEMPTIONS FROM REGISTRATION PROVIDED IN THE ACT AND
REGULATION D UNDER THE ACT. AS SUCH, THE PURCHASE OF THIS SECURITY WAS
NECESSARILY WITH THE INTENT OF INVESTMENT AND NOT WITH A VIEW FOR
DISTRIBUTION. THEREFORE, ANY SUBSEQUENT TRANSFER OF THIS SECURITY OR
ANY INTEREST THEREIN WILL BE UNLAWFUL UNLESS IT IS REGISTERED UNDER THE
ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
(m) THE SUBSCRIBER UNDERSTANDS THAT BATHGATE CAPITAL PARTNERS LLC IS
ACTING AS A FINDER ON THIS TRANSACTION, AND THE COMPANY WILL PAY BATHGATE
CAPITAL PARTNERS A FINDER'S FEE OF A CASH PAYMENT OF SEVEN PERCENT (7%) OF MY
INVESTMENT AND WARRANTS EQUAL TO SEVEN PERCENT (7%) OF MY INVESTMENT, AS
DESCRIBED IN THE DOCUMENTS. THE SUBSCRIBER FURTHER UNDERSTANDS THAT BATHGATE
CAPITAL PARTNERS HAS DONE ONLY A LIMITED AMOUNT OF DUE DILIGENCE ON THE COMPANY
AND THE INVESTMENT, AND REPRESENTS TO BATHGATE CAPITAL PARTNERS THAT THE
SUBSCRIBER IS NOT RELYING ON BATHGATE CAPITAL PARTNERS FOR PERFORMING SUCH
INVESTIGATIONS.
3. Company's Representations and Warranties. In order to induce the
Subscriber to enter into this subscription, the Company hereby represents and
warrants to, and covenants with, the Subscriber as follows:
(a) Documents. The Documents have been carefully prepared by the
Company. The Documents do not include any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. Any additional written information authorized by the
Company to be provided to prospective purchasers shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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(b) No Material Adverse Change. Except as may be reflected in or
contemplated by the Documents, subsequent to the dates as of which information
is given in the Documents, and prior to the acceptance of subscription proceeds
from an Investor (referred to herein as a "Closing"), (i) there has not been any
material adverse change in the business, properties, options to lease, leases,
financial condition, management, or otherwise of the Company or in the Company's
business taken as a whole, (ii) there has not been any material transaction
entered into by the Company other than transactions in the ordinary course of
business; (iii) the Company has not incurred any material obligations,
contingent or otherwise, which are not disclosed in the Documents; (iv) there
has not been any change in the capital stock or adverse change in the short-term
or long-term debt (except current payments) of the Company; and (v) the Company
has not paid or declared any dividends or other distributions.
(c) No Defaults. The Company is not in default in the performance of
any obligation, agreement or condition contained in any debenture, note or other
evidence of indebtedness or any indenture or loan agreement of the Company,
other than as set forth in the Documents or as will not materially and adversely
impact the Company or its present or prospective business. The execution and
delivery of this Agreement and the consummation of the transactions herein
contemplated, and compliance with the terms of this Agreement will not conflict
with or result in a breach of any of the terms, conditions or provisions of, or
constitute a default under, the articles of incorporation or bylaws of the
Company, or any note, indenture, mortgage, deed of trust, or other agreement or
instrument to which the Company is a party or by which it or any of its property
is bound, or any existing law, order, rule, regulation, writ, injunction, or
decree or any government, governmental instrumentality, agency or body,
arbitrator, tribunal or court, domestic or foreign, having jurisdiction over the
Company or its property other than breaches that would not materially and
adversely impact the Company or its present or prospective business. The
consent, approval, authorization, or order of any court or governmental
instrumentality, agency or body is not required for the consummation of the
transactions herein contemplated except such as may be required under the
securities laws of any state or jurisdiction.
(d) Organization and Standing. The Company is, and at the Closing will
be, duly organized and validly existing in good standing as a corporation under
the laws of its state of incorporation and with full power and authority to own
its property and conduct its business, present and proposed, as described in the
Documents; the Company has full power and authority to enter into this Agreement
and to issue the securities comprising the Units, and the Company is duly
qualified and in good standing as a foreign corporation in all jurisdictions in
which the character of the property owned or leased or the nature of the
business transacted by it makes such qualification necessary. The Company has
paid all fees required by the jurisdiction of organization and any jurisdiction
in which it is qualified as a foreign corporation.
(e) Legality of Units. The securities comprising the Units have been
duly and validly authorized and, when issued or sold and delivered against
payment therefor as provided in this Agreement, will be validly issued, fully
paid and nonassessable. Upon the due conversion of the Stock and due exercise of
the Warrants, the Common Stock of the Company issued thereunder will be validly
issued, duly paid and non-assessable. A sufficient number of shares of Common
Stock of the Company has been reserved for issuance upon conversion of the Stock
and upon exercise of the Warrants.
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(f) Prior Sales. No securities of the Company have been sold by the
Company or by, or on behalf of, or for the benefit of, any person or persons
controlling, controlled by, or under common control with the Company at any time
prior to the date hereof, except as set out in the Documents. No prior
securities sales by the Company or any affiliate are required to be integrated
with the proposed sale of the Units such that the availability of Regulation D
or any other claimed exemption from the registration requirements of the Act
would be made unavailable to the offer and sale of the Units.
(g) Litigation. There is and at the Closing there will be no action,
suit or proceeding before any court or governmental agency, authority or body
pending or to the knowledge of the Company threatened which might result in
judgments against the Company, or its officers, directors, employees or agents
which the Company is obligated to indemnify, not adequately covered by insurance
and which collectively might result in any material adverse change in the
condition (financial or otherwise), the business or the prospects of the Company
or would materially affect the properties or assets of the Company.
(h) Contracts. Each contract to which the Company is a party and to
which reference is made in the Documents has been duly and validly executed, is
in full force and effect in all material respects in accordance with their
respective terms, and none of such contracts has been assigned by the Company;
and the Company knows of no present situation or condition or fact which would
prevent compliance with the terms of such contracts, as amended to date. Except
for amendments or modifications of such contracts in the ordinary course of
business, the Company has no intention of exercising any right which it may have
to cancel any of its obligations under any of such contracts, and has no
knowledge that any other party to any of such contracts has any intention not to
render full performance under such contracts.
(i) Tax Returns. The Company has filed all federal, state and municipal
tax returns which are required to be filed, and has paid all taxes shown on such
returns or otherwise owed by it and on all assessments received by it to the
extent such taxes have become due. All other taxes with respect to which the
Company is obligated have been paid or adequate accruals have been set up to
cover any such unpaid taxes, including all federal and state withholding and
FICA payments.
(j) Property. Except as otherwise set forth in the Documents, the
Company has good title, free and clear of all liens, encumbrances and defects,
except liens for current taxes not due and payable, to all property and assets
which are described in the Documents as being owned by the Company, subject only
to such exceptions as are not material and do not adversely affect the present
or prospective business of the Company. All of the claims, options to lease,
leases and subleases material to the business of the Company under which the
Company holds or uses any real or personal property, including those described
or referred to in the Documents, are in full force and effect, and the Company
is not in default in respect of any of the terms or provisions of any such
claims, options to lease, leases or subleases, and no claim of any sort has been
asserted by anyone adverse to the Company's rights under any such claims,
options to lease, leases or subleases or affecting or questioning the Company's
rights to the continued possession of the claimed, optioned, leased or subleased
property covered by such claim, options to lease, lease or sublease.
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(k) Authority. The execution and delivery by the Company of this
Agreement has been duly authorized, and this Agreement is the valid, binding and
legally enforceable obligation of the Company.
(l) Use of Proceeds. The Company will apply the proceeds from the sale
of the Units for acquisition of Critical Nursing Solutions Inc., general working
capital and to fund offering expenses.
(m) No Limitations on Payment of Dividends. Except as otherwise set
forth in the Documents, there are no limitations, either contractual or
otherwise, nor will the Company enter into any agreement with any other party,
which prevents or limits the Company's ability to declare or pay dividends on
its Common Stock.
(n) Fair Market Value. The Company's Board of Directors has determined
in good faith that the price of a share of Class A Common Stock of the Company
determined by virtue of the sale of the Stock is at or in excess of the "Fair
Market Value" as defined in the terms of that certain Certificate of Designation
establishing the terms of the 7% Convertible Series A Preferred Stock of the
Company.
4. Restricted Nature of the Securities. The Subscriber has been advised
and understands that (a) the Securities have not been registered under the
Securities Act of 1933 or applicable state securities laws and that the
securities are being offered and sold pursuant to exemptions from such laws; (b)
the Documents may not have been filed with or reviewed by certain state
securities administrators because of the limited nature of the offering; (c)
except as provided in paragraph 11 hereunder, the Company is under no obligation
to register the Securities under the Act or any state securities laws, or to
take any action to make any exemption from any such registration provisions
available. The Subscriber represents and warrants that the Securities are being
purchased for the Subscriber's own account and for investment purposes only, and
without the intention of reselling or redistributing the same; the Subscriber
has made no agreement with others regarding any of the Securities; and the
Subscriber's financial condition is such that it is not likely that it will be
necessary to dispose of any of such Securities in the foreseeable future. The
Subscriber is aware that, in the view of the Securities and Exchange Commission,
a purchase of such securities with an intent to resell by reason of any
foreseeable specific contingency or anticipated change in market value, or any
change in the condition of the Company, or in connection with a contemplated
liquidation settlement of any loan obtained for the acquisition of such
securities and for which such securities were pledged, would represent an intent
inconsistent with the representations set forth above.
5. Residence. The Subscriber represents and warrants that the
Subscriber is a bona fide resident of, is domiciled in and received the offer
and made the decision to invest in the Securities in the state set forth on the
signature page hereof, and the Securities are being purchased by the Subscriber
in the Subscriber's name solely for the Subscriber's own beneficial interest and
not as nominee for, or on behalf of, or for the beneficial interest of, or with
the intention to transfer to, any other person, trust or organization, except as
specifically set forth in paragraph 18 of this Subscription Agreement and Letter
of Investment Intent.
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6. Investor Qualification. The Subscriber represents and warrants that
the Subscriber or the purchaser of the Securities named in paragraph 18 comes
within at least one category marked below, and that for any category marked the
Subscriber has truthfully set forth the factual basis or reason the Subscriber
comes within that category. ALL INFORMATION IN RESPONSE TO THIS PARAGRAPH WILL
BE KEPT STRICTLY CONFIDENTIAL. The Subscriber agrees to furnish any additional
information which the Company deems necessary in order to verify the answers set
forth below.
Category I ___ The Subscriber is an individual (not a partnership,
corporation, etc.) whose individual net worth, or
joint net worth with the Subscriber's spouse,
presently exceeds $1,000,000.
Explanation. In calculation of net worth the
Subscriber may include equity in personal property
and real estate, including the Subscriber's principal
residence, cash, short term investments, stocks and
securities. Equity in personal property and real
estate should be based on the fair market value of
such property less debt secured by such property.
Category II ___ The Subscriber is an individual (not a partnership,
corporation, etc.) who had an individual net income
in excess of $200,000 in each of the last two years,
or joint income with his/her spouse in excess of
$300,000 in each of the last two years, and has a
reasonable expectation of reaching the same income
level in the current year.
Category III ___ The Subscriber is an executive officer or director of
the Company.
Category IV _X_ The Subscriber is a bank; savings and loan; insurance
company; registered broker or dealer; registered
investment company; registered business development
company; licensed small business investment company
(SBIC); or employee benefit plan within the meaning
of Title I of ERISA whose plan fiduciary is either a
bank, savings and loan, insurance company or
registered investment advisor or whose total assets
exceed $5,000,000; or a self-directed employee
benefit plan with investment decisions made solely by
persons that are accredited investors.
SBIC
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(describe entity)
Category V ___ The Subscriber is a private business development
company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940.
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(describe entity)
Category VI ___ The Subscriber is an entity with total assets in
excess of $5,000,000 which was not formed for the
purpose of investing in the Units and which is one of
the following:
_____ a corporation; or
_____ a partnership; or
_____ a business trust; or
_____ a tax-exempt organization described in
Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
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(describe entity)
Category VII ___ The Subscriber is a trustee for a trust that is
revocable by the grantor at any time (including an
▇▇▇) and the grantor qualifies under either Category
I or Category II above. A copy of the declaration of
trust or trust agreement and a representation as to
the net worth or income of the grantor is enclosed.
Category VIII ___ The Subscriber is an entity all the equity owners of
which are "accredited investors" within one or more
of the above categories, other than Category IV or
Category V. [If relying upon this category alone,
each equity owner must complete a separate copy of
this Agreement.]
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(describe entity)
Category IX ___ The Subscriber is a trust with total assets in excess
of $5,000,000, not formed for the specific purpose of
acquiring the Securities, whose purchase is directed
by a person who has such knowledge and experience in
financial and business matters that he is capable of
evaluating the merits and risks of the prospective
investment.
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7. Disclosure of Stock Ownership. In the registration statement
referred to in paragraph 11 below, the Company needs to disclose the number of
shares of stock of the Company the Subscriber owns in addition to those being
purchased in this offering.
Does the Subscriber beneficially own shares of stock of the Company or
securities convertible into shares of common stock of the Company prior to this
subscription?
Yes __X__ No _____
If so, state the number of shares common stock of the Company you beneficially
own and the number of shares of common stock into which any other security you
hold could be converted. If you are uncertain about the number of shares of
common stock into which any other security you hold could be converted, state
the name of the convertible security and the number of shares or principal
amount, as applicable.
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If this information changes, please notify the Company.
Please note that a "beneficial owner" of shares means any person who, directly
or indirectly, through any contract, arrangement, understanding, relationship or
otherwise has or shares voting power (including the power to vote, or to direct
the voting of, such shares), and/or investment power (including the power to
dispose of, or to direct the disposition of, such shares). Include shares owned
by your spouse or relatives and over which you have or share "voting power" or
"investment power" or both. Please note that the same security may be
beneficially owned by more than one person. In the case of options or warrants,
shares which will be issuable upon the exercise of same are deemed to be
beneficially owned by you if you may exercise the option or warrant within 60
days
8. Additional Representations. The undersigned, if other than an
individual, makes the following additional representations:
(a) The Subscriber was not organized for the specific purpose
of acquiring the Securities; and
(b) This Subscription Agreement and Letter of Investment
Intent has been duly authorized by all necessary action on the part of the
Subscriber, has been duly executed by an authorized officer or representative of
the Subscriber, and is a legal, valid and binding obligation of the Subscriber
enforceable in accordance with its terms.
9. Sophistication. The Subscriber further represents and warrants that
he has such knowledge and experience in financial and business matters so as to
be capable of evaluating the merits and risks of an investment in the Securities
and protecting the Subscriber's own interests in this transaction, and does not
desire to utilize the services of any other person in connection with evaluating
such merits and risks.
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10. Transferability and Assignability. Neither this Subscription
Agreement nor any of the rights of the Subscriber hereunder may be transferred
or assigned by the Subscriber. The Subscriber agrees that the Subscriber may not
cancel, terminate, or revoke this Subscription Agreement or any agreement of the
Subscriber made hereunder (except as otherwise specifically provided herein) and
that this Subscription Agreement shall survive the death or disability of the
Subscriber and shall be binding upon the Subscriber's heirs, executors,
administrators, successors, and assigns.
11. Registration Rights. The Company shall include the Securities in a
registration statement to be filed with the SEC no later than 10 business days
after the termination of the offering, and the Company shall use its best
efforts to cause the registration statement to be declared effective as soon as
possible thereafter. These rights are more fully described in the Registration
Rights Agreement that is attached to this Subscription Agreement as Exhibit B
(the "Registration Rights Agreement"). By executing this Subscription Agreement,
the Subscriber agrees to the terms of the Registration Rights Agreement.
12. NASD Membership - Individual Investor. Are you a member of the
NASD,(1) a person associated with a member(2) of the NASD, or an affiliate of a
member?
Yes _____ No __X__
If "Yes," please list any members of the NASD with whom you are associated or
affiliated.
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13. NASD Membership - Corporate Investor. If you are a corporation, are
any of your officers, directors or 5% shareholders a member of the NASD, a
person associated with a member of the NASD, or an affiliate of a member?
Yes __X__ No _____
If "Yes," please list the name of the respective officer, director or 5%
shareholder and any members of the NASD with whom they are associated or
affiliated.
_______________________
(1) The NASD defines a "member" as being either any broker or dealer admitted to
membership in the NASD or any officer or partner of such a member, or the
executive representative of such a member or the substitute for such
representative.
(2) The NASD defines a "person associated with a member" as being every sole
proprietor, general or limited partner, officer, director or branch manager or
such member, or any natural person occupying a similar status or performing
similar functions, or any natural person engaged in the investment banking or
securities business who is directly or indirectly controlling or controlled by
such member (for example, any employee), whether or not any such person is
registered or exempt from registration without the NASD. Thus, "person
associated with a member" includes a sole proprietor, general or limited
partner, officer, director or branch manager or an organization of any kind
(whether a corporation, partnership or other business entity) which itself is a
"member" or a "person associated with a member." In addition, an organization of
any kind is a "person associated with a member" if its sole proprietor or anyone
of its general or limited partners, officers, director or branch managers is a
"member" or "person associated with a member."
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager of the General Partner, is a NASD Member.
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Bathgate Capital Partners
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14. Survival. The representations and warranties of the Subscriber set
forth herein shall survive the sale of the Units pursuant to this Subscription
Agreement.
15. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally or
mailed by certified or registered mail, return receipt requested, postage
prepaid, as follows: if to the Subscriber, to the address set forth below; and
if to the Company to the address at the beginning of this letter, or to such
other address as the Company or the Subscriber shall have designated to the
other by like notice.
16. Applicable to FLORIDA residents only. The Subscriber has been
informed and recognizes that (a) the Units have not been registered under the
Florida Securities Act, and (b) under Section 517.061(12) of the Florida
Securities Act, the Subscriber may void the sale of any Securities within three
(3) days after the tender of this Subscription Agreement and payment hereunder
to the Company.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
18. Title. Manner in Which Title is To Be Held.
Place an "X" in one space below:
(a) _____ Individual Ownership
(b) _____ Community Property
(c) _____ Joint Tenant with Right of Survivorship (both
parties must sign)
(d) __X__ Partnership
(e) _____ Tenants in Common
(f) _____ Corporation
(g) _____ Trust
(h) _____ Other (Describe):
Roaring Fork Capital SBIC, L.P.
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Please print above the exact name(s) in which the Securities are to
be held.
19. State of Residence. My state of residence and the state in which I
received the offer to invest and made the decision to invest in the Securities
is Colorado.
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20. Date of Birth. My date of birth is ______________________.
IN NO EVENT WILL THE COMPANY, BATHGATE CAPITAL PARTNERS LLC, OR ANY OF THEIR
AFFILIATES OR THE PROFESSIONAL ADVISORS ENGAGED BY THEM BE LIABLE IF FOR ANY
REASON RESULTS OF OPERATIONS OF THE COMPANY ARE NOT AS PROJECTED IN THE
DOCUMENTS. INVESTORS MUST LOOK SOLELY TO, AND RELY ON, THEIR OWN ADVISORS WITH
RESPECT TO THE TAX CONSEQUENCES OF INVESTING IN THE SECURITIES.
SIGNATURE PAGE ON NEXT PAGE
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INDIVIDUAL
----------
The Subscriber hereby represents he has read this entire Subscription Agreement.
Dated:
--------------------
Address to Which Correspondence
Should be Directed
------------------------------------------ ---------------------------------
Signature (Individual)
---------------------------------
------------------------------------------ ---------------------------------
Signature (All record holders should sign) City, State and Zip Code
------------------------------------------ ---------------------------------
Name(s) Typed or Printed Tax Identification or Social
Security Number
( )
------------------------------------------ ---------------------------------
Telephone Number
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CORPORATION, PARTNERSHIP, TRUST, OR OTHER ENTITY
------------------------------------------------
Address to Which Correspondence
Should be Directed
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇
Roaring Fork Capital SBIC, L.P. Suite 745
------------------------------------------ ---------------------------------
Name of Entity
By: Roaring Fork Capital Management LLC, Its GP
By: /s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------- ---------------------------------
*Signature City, State and Zip Code
Its: Manager of General Partner ▇▇-▇▇▇▇▇▇▇
------------------------------------- ---------------------------------
Title Tax Identification or Social
Security Number
G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------------------ ---------------------------------
Name Typed or Printed Telephone Number
*If Securities are being subscribed for by an entity, the Certificate of
Signatory must also be completed.
CERTIFICATE OF SIGNATORY
------------------------
To be completed if Securities are being subscribed for by an entity.
I, G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, am the Manager of Roaring Fork Capital
Management LLC, the General Partner of Roaring Fork Capital SBIC, L.P. (the
"Entity").
I certify that I am empowered and duly authorized by the Entity to
execute and carry out the terms of the Subscription Agreement and Letter of
Investment Intent and to purchase and hold the Securities, and certify that the
Subscription Agreement and Letter of Investment Intent has been duly and validly
executed on behalf of the Entity and constitutes a legal and binding obligation
of the Entity.
IN WITNESS WHEREOF, I have hereto set may hand this 31st day of May
2006.
/s/ G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Signature
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ACCEPTANCE
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This Subscription Agreement is accepted as of May 31, 2006.
ATC HEALTHCARE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Authorized Officer
Date: 5/31/2006
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