UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
ATC Healthcare, Inc.
(Name of Issuer)
Class A Common Stock
(Title of Class of Securities)
00209C102
(CUSIP Number)
Eugene C. McColley
Roaring Fork Capital SBIC, L.P.
5350 S. Roslyn St., Ste. 380
Greenwood Village, CO 80111
(303) 694-1300
(Name, Address and Telephone Number of Person Authorized to
Receive Notice and Communications)
November 13, 2007
(Date of Event which Requires Filing of Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. |X|
Note: Schedules filed in paper format shall include a signed original and
five copies of the Schedule, including all exhibits. See ss. 240.13d-7(b)
for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP NO. 00209C102 13D Page 2 of 6 Pages
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1) NAME OF REPORTING PERSONS (1)
(a) Roaring Fork Capital SBIC, L.P. ("RFLP")
(b) Roaring Fork Capital Management , LLC ("RFLLC")
(c) Eugene C. McColley, James T. Rothe, and G. Michael Machens
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2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)
(b)
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3) SEC USE ONLY
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4) SOURCE OF FUNDS (See Instructions)
WC
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5) CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d)
or 2(e)
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6) CITIZENSHIP OR PLACE OF ORGANIZATION
(a) Delaware, USA
(b) Colorado, USA
(c) USA
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NUMBER OF SHARES 7) SOLE VOTING POWER
BENEFICIALLY OWNED BY 8,543,217 (2)
EACH 8) SHARED VOTING POWER
REPORTING PERSON 0
WITH 9) SOLE DISPOSITIVE POWER
8,543,217 (2)
10) SHARED DISPOSITIVE POWER
0
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11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,543,217 (2)
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12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
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13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.7% (based on 46,480,744 shares of Class A Common Stock outstanding
on May 31, 2007 as disclosed in the Form 10-Q filed by the Issuer on
July 16, 2007.)
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14) TYPE OF REPORTING PERSON (See Instructions)
(a) PN
(b) OO
(c) IN, IN, IN
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2
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(1) Joint filing pursuant to Rule 13D-1(k)(1). The record owner of the
securities of the Issuer is RFLP. This Statement is also being filed on behalf
of RFLLC, which is the sole general partner of RFLP, and McColley, Rothe and
Machens, who are the Managers of RFLLC and, as principals of RFLLC, may be
deemed to share indirect beneficial ownership of the securities which RFLLC may
beneficially own. RFLLC and Messrs. McColley, Rothe and Machens disclaim
beneficial ownership of the reported securities except to the extent of their
pecuniary interests.
(2) Consists of 3,874,991 shares of Class A Common Stock, $.01 par value per
share, 2,167,351 shares of Class A Common Stock that may be acquired upon
exercise of warrants, and 2,500,875 shares of Class A Common Stock that may be
acquired upon conversion of 6% Convertible Series C Preferred Stock.
3
Schedule 13D
Under the Securities Exchange Act of 1934
Item 1. Security and Issuer
This statement on Schedule 13D ("Statement") relates to the shares of Class A
Common Stock, $.01 par value per share (the "Common Stock"), of ATC Healthcare,
Inc. (the "Issuer"), a Delaware corporation, having its principal executive
offices at 1983 Marcus Avenue and is being filed by the Reporting Person
identified in Item 2 below.
Item 2. Identity and Background
(a) This statement is filed by and on behalf of each of the following persons
(the "Reporting Persons"): (i) Roaring Fork Capital SBIC, L.P., a Delaware
limited partnership ("RFLP"); (ii) Roaring Fork Capital Management , LLC, a
Colorado limited liability company ("RFLLC"); (iii) Eugene C. McColley; (iv)
James T. Rothe; and (v) G. Michael Machens.
(b) The address of the principal business office of each of the Reporting
Persons is 5350 S. Roslyn St., Ste. 380, Greenwood Village, Colorado 80111.
(c) Messrs. McColley, Rothe and Machens are the Managers of RFPLLC, the
principal business office of which is located at 5350 S. Roslyn St., Ste. 380,
Greenwood Village, Colorado 80111. RFPLLC is the General Partner of RFLP, a
small business investment company.
(d) During the last five years, none of the Reporting Persons filing this
Statement has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) During the last five years, none of the Reporting Persons filing this
Statement has been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceeding was or is
subject to a judgment, decree, or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
(f) Messrs. McColley, Rothe and Machens are citizens of the United States.
Item 3. Source and Amount of Funds or Other Consideration
No transactions have been made in the Common Stock of the Issuer since the
filing of the statement on Schedule 13G/A in February 2007.
Item 4. Purpose of Transaction
The Reporting Persons acquired the shares of Common Stock for investment
purposes. The Reporting Persons continue to review their investment in the
Issuer. Certain of the Reporting Persons have in the past and may continue in
the future to engage in discussions with management, the board of directors,
other stockholders of the Issuer and other relevant parties concerning the
business, operations, board composition, management, strategy and future plans
of the Issuer. Depending on various factors, including, without limitation, the
Issuer's financial position and strategic direction, actions taken by the board
of directors, price levels of the shares of Common Stock, other investment
opportunities available to the Reporting Persons, conditions in the securities
market and general economic and industry conditions, certain of, or all of, the
Reporting Persons may in the future take such actions with respect to their
investment in the Issuer as they deem appropriate, including, without
limitation, purchasing additional shares of Common Stock or other securities of
the Issuer or selling some or all of the shares of Common Stock or other
securities of the Issuer held by some or all of them, seeking to influence the
management or strategic direction of the Issuer and/or otherwise changing its
intention with respect to any and all matters referred to in Item 4 of Schedule
13D.
4
On November 13, 2007, RFLP sent a letter to the Issuer, recommending certain
actions. A copy of the letter is attached to this Statement as Exhibit 1 and
incorporated into this Statement by reference in its entirety.
Item 5. Interest in Securities of Issuer
(a) The aggregate number and percentage of shares of Common Stock beneficially
owned by each Reporting Person:
See the disclosure provided in response to Items 11 and 13 on the
attached cover page.
(b) Number of shares as to which such person has:
(i) sole power to vote or to direct the vote:
See the disclosure provided in response to Item 7 on the attached
cover page.
(ii) shared power to vote or to direct the vote:
See the disclosure provided in response to Item 8 on the attached
cover page.
(iii) sole power to dispose or to direct the disposition of:
See the disclosure provided in response to Item 9 on the attached
cover page.
(iv) shared power to dispose or to direct the disposition of:
See the disclosure provided in response to Item 10 on the attached
cover page.
(c) No transactions in the Issuer's Common Stock were effected during the 60
days preceding the date hereof by the Reporting Persons filing this
Statement and their affiliated persons.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
There are no contracts, arrangements, understandings or relationships between
the Reporting Persons or any other person with respect to the securities of the
Issuer.
Item 7. Material to Be Filed as Exhibits
Exhibit 1 Letter from RFLP to the Issuer, dated November 13, 2007
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SIGNATURES
Each of the undersigned hereby certifies after reasonable inquiry, that to the
best of his/her knowledge and belief, the information set forth in this
statement is true, complete and correct.
November 13, 2007 ROARING FORK CAPITAL SBIC, L.P.
By: Roaring Fork Capital Management,
LLC, its general partner
By: /s/ Eugene C. McColley
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Eugene C. McColley
Manager
ROARING FORK CAPITAL MANAGEMENT, LLC
By: /s/ Eugene C. McColley
------------------------
Eugene C. McColley
Manager
/s/ Eugene C. McColley
--------------------------------
Eugene C. McColley, individually
/c/ James T. Rothe
--------------------------------
James T. Rothe, individually
/s/ G. Michale Machens
--------------------------------
G. Michael Machens, individually
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EXHIBIT 1
Roaring Fork Capital Management, LLC
5350 South Roslyn Street, Suite 380
Greenwood Village, CO 80111-2124
November 13, 2007
Board of Directors
ATC Healthcare, Inc.
1983 Marcus Avenue
Lake Success, NY 11042
Dear Gentlemen:
We are writing to express our disappointment with ATC's poor operating
performance, the disportionately high salaries of management, and the failure of
management and the board of directors to provide shareholder value.
We have become increasingly frustrated with the lack of strategic direction of
the Company, as demonstrated by the dismal operating results, declining stock
price, failure to timely file the 10-Q report when due last month, and
non-compliance with requirements for continued listing on the AMEX.
We had made direct investments in ATC based on management's assurances to us
that ATC is a leader in medical staffing facilities and that expansion capital
would result in better margins and substantial profits for the Company. That has
not occurred. Instead, ATC has continued to lose money, has been unable to
retain chief financial officers, has announced accounting irregularities in its
prior financial statements, and has failed to timely file its SEC reports.
Having used funds provided by Roaring Fork and other investors, the Company is
again in poor financial condition and now is in danger of losing its AMEX
listing.
In your proxy statement for the annual meeting of shareholders in August, you
reported that your compensation philosophy is to support a pay-for-performance
policy that rewards executives for corporate performance. We see the high pay
and the long-term contracts for the executives, but we don't see the
performance. We have suggested that the high salaries be cut, but our requests
have been met with silence.
We have read your press release of October 30 in which you announced the receipt
of correspondence from AMEX regarding the Company's lack of compliance with
AMEX's standards due to the fact that the independent directors do not
constitute a majority of the board of directors and the fact that the audit
committee is not composed of at least three independent directors. We think this
is an opportune time for the board to:
o Promptly elect a new director who is highly qualified and independent in
every sense of the word, including no prior relationship with the Savitsky
family.
Board of Directors
November 13, 2007
Page 2
o Establish a nominating and corporate governance committee of the board,
comprised solely of independent directors, with a charter requiring that,
among other things, the committee establish director selection guidelines
and corporate governance policies designed to promote shareholder value, as
opposed to advancing the personal interests of the Savitskys.
o Direct the nominating and corporate governance committee to study the
desirability of expansion of the board and the appropriateness of the
Savitsky executives remaining on the board and to report to the board their
findings and recommendations.
o Direct the nominating and corporate governance committee to study the
desirability of retaining a "staggered" board of directors and to report to
the board their findings and recommendations.
o Abolish the executive committee, which is currently comprised solely of the
Savitsky executives and no independent directors.
o Restructure executive pay with an emphasis on incentive pay based on
performance.
o Restructure the change-in-control arrangements with the Savitskys, which
currently provide for inordinately high amounts to be paid to them relative
to the Company's cash position and cash resources.
o Establish strategic business goals and performance metrics and determine
executive retention and pay based on achievement.
o Report to the shareholders on the board's plans to create shareholder value
and the progress in implementing and maintaining these plans.
Finally, we think it is critical that the board review the causes of the
Company's poor performance, as well as what management is and should be doing to
address the bad results and what strategic alternatives and other means should
be used to improve performance. The board should also decide whether ATC would
benefit from an independent review of its strategy and operating plan to create
shareholder value.
We respectfully request a response from the Board to our concerns.
Cordially,
Roaring Fork Capital Management, LLC
General Partner of Roaring Fork Capital SBIC, L.P.
/s/ Gene McColley /s/ Mike Machens /s/ Jim Rothe
----------------- ---------------- -------------
Gene McColley Mike Machens Jim Rothe
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Atc Healthcare (AMEX:AHN)
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Atc Healthcare (AMEX:AHN)
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