UNITED
STATES
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): February
16, 2010
Performance
Capital Management, LLC
(Exact
name of registrant as specified in its charter)
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California
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0 – 50235
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03-0375751
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(State
or other Jurisdiction
of
incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer Identification
No.)
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7001
Village Drive, Suite 255
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Buena Park, California
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90621
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant's
telephone number, including area code: (714)
736-3790
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:
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item 5.02. Departure of
Directors or Certain Officers.
On
February 16, 2010, a severance payment was made by Performance Capital
Management, LLC (the “Company”) to Mr. David Caldwell, the Company’s Chief
Operations Officer, and Mr. Edward Rucker, the Company’s Accounting Manager, in
the amounts of $110,000 and $10,000, respectively, in connection with their
termination as employees of the Company to be effective on February 28, 2010.
The Board of Directors (“Board”) of the Company had previously approved the
payments and the effective date of the terminations at its regularly scheduled
meeting held on January 12, 2010. Beginning on March 1, 2010, all executive
officer duties will be assumed by the members of the Board.
As a
result of their removal as employees of the Company, Mr. Caldwell’s employment
agreement and Mr. Rucker’s indemnification agreement with the Company will
terminate on February 28, 2010. Mr. Caldwell’s severance payment is made in
connection with his employment agreement with the Company, which contemplates a
payment equal to six months of his annual salary of $220,000. A copy of Mr.
Caldwell’s employment agreement is attached to the Company’s report on Form
10-QSB for the period ended June 30, 2007, filed with the SEC on August 14,
2007. Mr. Rucker’s severance payment is made in consideration of his many years
of service to the Company.
The
reason for the termination of the full-time employment of Mr. Caldwell and Mr.
Rucker is to reduce the fixed expenses of the Company. After February 28, 2010,
both Mr. Caldwell and Mr. Rucker may continue to serve the Company on a
part-time, as needed basis until the Company has been dissolved, but
will no longer be full-time employees of the Company. The
Board-approved hourly rates shall be $100.00 per hour for Mr. Caldwell and
$50 per hour for Mr. Rucker. Mr. Caldwell’s services are anticipated to include
payments to creditors and other fees, investor relations and assistance with the
dissolution of the Company. Mr. Rucker’s services are to include preparation of
tax forms, accounts payable and any distributions to unit-holders, as well as
other accounting matters as needed.
Mr.
Darren Bard resigned as an officer of the Company effective January 15,
2010, but has continued to assist the Company with transitional matters. As
compensation for his continued assistance and in consideration for his many
years of service to the Company, the Board approved a one-time payment in the
amount of $12,500 to Mr. Bard, which payment was made on January 15, 2010. The
amount was determined to be based upon Mr. Bard providing between 150 and 200
hours of service to the Company. These services have included assistance with
the transfer of portfolio files to buyers, assistance in preparing tax forms,
handling data requests, and assisting with other legal and financial reports and
documents as needed.
Beginning
on February 1, 2010, the remaining three members of the Board will each receive
$2,000 per regular Board meeting in compensation for their services as directors
of the Company. Mr. Les Bishop and Mr. Sanford Lakoff had previously been paid
$1,350 per regular Board meeting and Mr. Rutherford had previously been paid
$2,183 per regular Board meeting. The adjustment was made to equalize the
payments to the Board members and to reflect the added responsibility of the
three Board members following the resignation of the other Board members and the
anticipated termination of employment of Mr. Caldwell and Mr.
Rucker.
1
Item
8.01. Other Events.
As of
February 19, 2010, a majority of the Company’s outstanding member units that had
been voted were voted in favor of the proposal to dissolve the Company. However,
approval of the dissolution proposal requires the affirmative vote of a majority
of the issued and outstanding member units of the Company, as opposed to just a
majority of those member units voted.
Since a
large number of the Company’s members have not yet voted, the Board has extended
the voting deadline from Friday, February 19, 2010 to Monday, March 1, 2010 in
order to give these members a chance to submit their consents. The Board
strongly encourages the members to carefully consider the dissolution proposal
described in the proxy statement and to vote in favor of the dissolution
proposal. The Board thanks the large number of members who have already voted
for the dissolution proposal.
The
record date for members entitled to vote by consent remains December 31,
2009. Members who have previously submitted their consent, and who do
not want to change their vote, need not take any action. Members who have
questions about the dissolution, need assistance in submitting their consent (or
changing a prior vote of their shares) should contact Mr. David Caldwell, Chief
Operations Officer, at 1-714-736-3790
or toll-free at 1-800-757-7700, extension 0.
ADDITIONAL
INFORMATION AND WHERE TO FIND IT
The
disclosure in this report on Form 8-K is incorporated by reference in the
definitive proxy statement filed by the Company with the SEC on January 12,
2010. Members are urged to read the definitive proxy statement and other
relevant materials filed by the Company with the SEC carefully, including this
Report on Form 8-K, because they contain important information about the
Company, the proposal and related matters. Members may obtain free copies of the
consent solicitation documents filed with the SEC on the Company’s web site at:
http://www.cfpproxy.com/9101SM. Members may also request a copy of any document
posted on the Company’s web site by writing to Performance Capital Management,
LLC, 7001 Village Drive, Suite 255, Buena Park, California 90621, Attn: David J.
Caldwell or by calling 1-714-736-3790 or toll-free 1-800-757-7700, extension
0.
FORWARD-LOOKING
STATEMENTS
Except
for the historical information presented in this document, the matters discussed
in this Form 8-K or otherwise incorporated by reference into this document
contain “forward-looking statements” (as such term is defined in the Private
Securities Litigation Reform Act of 1995). These statements can be identified by
the use of forward-looking terminology such as “believes,” “plans,” “expects,”
“may,” “will,” “intends,” “should,” “plan,” “assume” or “anticipates” or the
negative thereof or other variations thereon or comparable terminology, or by
discussions of strategy that involve risks and uncertainties. The safe harbor
provisions of Section 21E of the Securities Exchange Act of 1934, as amended,
and Section 27A of the Securities Act of 1933, as amended, apply to
forward-looking statements made by Performance Capital Management, LLC (the
“Company”). You should not place undue reliance on forward-looking statements.
Forward-looking statements involve risks and uncertainties. The actual results
that we achieve may differ materially from any forward-looking statements due to
such risks and uncertainties. These forward-looking statements are based on
current expectations, and we assume no obligation to update this information.
Readers are urged to carefully review and consider the various disclosures made
by the Company in this report on Form 8-K and in the Company’s other reports
filed with the Securities and Exchange Commission that attempt to advise
interested parties of the risks and factors that may affect our
business.
SIGNATURES
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.
| PERFORMANCE CAPITAL MANAGEMENT, LLC | ||||
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February 22, 2010
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By:
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/s/ David J.
Caldwell
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(Date)
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David
J. Caldwell
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Its:
Chief Operations Officer
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