Exhibit 4.4
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THIS NOTE, AND THE SECURITIES INTO WHICH IT IS CONVERTIBLE
(COLLECTIVELY,
THE
"SECURITIES"), HAVE NOT BEEN REGISTERED
WITH THE UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY
STATE. THE
SECURITIES
ARE BEING OFFERED PURSUANT TO A SAFE HARBOR
FROM REGISTRATION UNDER REGULATION D
PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THE
SECURITIES ARE "RESTRICTED" AND MAY NOT BE
OFFERED OR SOLD UNLESS THE SECURITIES
ARE REGISTERED UNDER THE ACT OR SOLD
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN SUCH CASE THE COMPANY WILL BE
PROVIDED WITH AN OPINION OF COUNSEL AND OTHER SUCH INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH
EXEMPTIONS ARE AVAILABLE.
CONVERTIBLE NOTE DATED SEPTEMBER 12, 2005
ATC HEALTHCARE, INC.
12% Convertible Note
Due September 14, 2006
No. _______
$_______________________
This Convertible Note is issued by ATC
HEALTHCARE, INC., a Delaware corporation
(the "Company"), to
________________________________ (together with its
permitted successors and assigns, the
"Holder") pursuant to exemptions from
registration under the Securities Act of
1933, as amended. Section 1.01
Principal and Interest. For value received,
on September 12, 2006, the Company
hereby promises to pay to the order of the
Holder in lawful money of the United
States of America and in immediately
available funds the principal sum of
____________________Dollars (US
$______________), together with interest on the
unpaid principal of this Note at the rate
of twelve percent (12%) per year
(computed on the basis of a 365-day year
and the actual days elapsed) from the
date of this Note until paid, with such
interest only being paid in the
Company's stock as provided herein. At the
Holder's option, the entire principal
amount and all accrued interest shall be
either (a) paid to the Holder on the
First (1st) anniversary from the date
hereof or (b) converted in accordance with
Section 1.02 herein. This Note is one of a
series of Notes having an aggregate
principal amount of not more than One
Million Two Hundred Fifty Thousand and
No/100 Dollars ($1,250,000.00) which are
identical except as to the principal
amount and date of issuance thereof. Such
Notes are referred to herein
collectively as the "Notes."
<PAGE>
Section 1.02
Optional
Conversion. The Holder is entitled, at its option,
at any time to convert all, but not less
than all, of the outstanding principal
amount of this Note, plus accrued but
unpaid interest, into shares (the
"Conversion Shares") of the Company's Class
A common stock, $.01 par value per
share ("Common Stock"), at the price per
share (the "Conversion Price") equal to
Thirty-Seven Cents ($0.37). No fraction of
shares or scrip representing
fractions of shares will be issued on
conversion, but the number of shares
issuable shall be rounded to the nearest
whole share. To convert this Note in
whole or part, the Holder shall deliver
written notice thereof, substantially in
the form of Exhibit A to this Note, with
appropriate insertions (the "Conversion
Notice"), to the Company at its address as
set forth herein together with the
original of this Note. The date upon which
the conversion shall be effective
(the "Conversion Date") shall be deemed to
be the date set forth in the
Conversion Notice, which shall be no
earlier than the date the notice is
delivered to the Company.
Section 1.03
Mandatory
Conversion. The Notes will be automatically
converted in full (both principal and
accrued but unpaid interest), at the
Conversion Price, upon the effectiveness of
a registration statement filed by
the Company that registers the shares of
Common Stock underlying the Notes,
without any action on the part of the
Holder. Following automatic conversion in
accordance with this Section, this Note
shall solely evidence the right of the
Holder to receive the stock into which this
Note has been converted, which
shares shall be delivered to the Holder
promptly following delivery of this Note
by the Holder to the Company.
Section 1.04
Reservation of
Common Stock. The Company shall reserve and
keep available out of its authorized but
un-issued shares of Common Stock,
solely for the purpose of effecting the
conversion of this Note, such number of
shares of Common Stock as shall from time
to time be sufficient to effect such
conversion. All certificates evidencing
shares of Common Stock issued hereunder
shall bear a legend substantially similar
to the one at the top of this Note.
Section 1.05
Registration
Rights. The Company is obligated to register
the resale of the Conversion Shares under
the Securities Act of 1933, as
amended, pursuant to the terms of a
Registration Rights Agreement, between the
Company and the Holder of even date
herewith (the "Registration Rights
Agreement").
Section 1.06
Interest
Payments. The interest payable hereunder will be
paid at the time of maturity to the person
in whose name this Note is registered
and only in the form of shares of Common
Stock valued at the Convers
