Exhibit 10.45
TORBAY HOLDINGS, INC.
4 Mulford Place, Suite 2G
Hempstead, New York 11550
July 18, 2003
AJW Partners, LLC
AJW Offshore, Ltd.
AJW Qualified Partners, LLC
New Millennium Capital Partners II, LLC
1044 Northern Boulevard
Suite 302
Roslyn, New York 11576
Re: Torbay Holdings, Inc. -- Stockholder Approval for
Increase in Authorized Capital; Funding of Remaining
Subsequent Investment
Gentlemen:
Torbay Holdings, Inc., a Delaware corporation (the "Company")
and each of the investors set forth on the signature pages hereto (the
"Investors") entered into a Securities Purchase Agreement, dated as of April 16,
2003 (the "Agreement"), and certain other related documents (together with the
Agreement, referred to collectively herein as the "Transaction Documents").
Pursuant to the Agreement, the Company agreed to issue and sell and the
Investors agreed to purchase, upon the terms and conditions set forth in the
Agreement, (i) 12% secured convertible debentures of the Company in the
aggregate principal amount of Two Hundred Fifty Thousand Dollars ($250,000)(the
"Debentures"), which Debentures are convertible into shares of common stock, par
value $.0001 per share, of the Company (the "Common Stock") and (ii) warrants to
purchase up to Five Hundred Thousand (500,000) shares of Common Stock (the
"Warrants"). Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed thereto in the Agreement.
By execution hereof, for good and valuable consideration, the
receipt and sufficiency of is hereby acknowledged, the parties hereto agree as
follows:
1. The Company shall file an information statement or proxy
statement with the Securities and Exchange Commission ("SEC")
no later than August 1, 2003 and use its best efforts to
obtain, on or before September 12, 2003, such approvals of the
Company's stockholders as may be required to increase the
authorized capital of the Company by an amount sufficient to
permit the Company to issue all of the shares of Common Stock
issuable upon conversion or exercise of, or otherwise with
respect to, the Debentures and the Warrants in accordance with
Delaware law and any applicable rules and regulations of the
OTCBB and Nasdaq (the "Stockholder Approval").
2. The Company shall furnish to each Investor and its legal
counsel promptly (but in no event less than two (2) business
days) before the same is filed with the SEC, one copy of the
information statement or proxy statement, or any amendment
thereto, filed with the SEC in connection with the Stockholder
Approval, and shall deliver to each Investor promptly each
letter written by or on behalf of the Company to the SEC or
the staff of the SEC, and each item of correspondence from the
SEC or the staff of the SEC, in each case relating to such
information statement or proxy statement.
3. The Company will promptly (but in no event more than three (3)
business days) respond to any and all comments received from
the SEC (which comments shall promptly be made available to
each Investor). The Company shall comply with the filing and
disclosure requirements of Section 14 under the 1934 Act in
connection with the Stockholder Approval.
4. The Company represents and warrants that its Board of
Directors has approved the proposal contemplated by this
letter agreement and will indicate such approval in the
information statement or proxy statement used in connection
with the Stockholder Approval.
5. The undersigned parties hereby agree to amend Section 1(d) of
the Agreement to provide that the Buyers will fund the
remaining $140,000 of the subsequent investment referred to in
that Section on the date hereof.
6. All other provisions of the Transaction Documents shall remain
in full force and effect.
The parties shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
parties hereto may reasonably request in order to carry out the intent and
accomplish the purposes of this letter agreement.
[Signature Page Follows]
Please signify your agreement with the foregoing by signing a
copy of this letter where indicated and returning it to the undersigned.
Sincerely,
TORBAY HOLDINGS INC.
By:
---------------------------------------
William Thomas Large
President and Chief Executive Officer
ACCEPTED AND AGREED:
AJW PARTNERS, LLC
By: SMS GROUP, LLC
- -----------------------------------------
Corey S. Ribotsky, Manager
AJW OFFSHORE, LTD.
By: FIRST STREET MANAGER II, LLC
- -----------------------------------------
Corey S. Ribotsky, Manager
AJW QUALIFIED PARTNERS, LLC
By: AJW MANAGER, LLC
- -----------------------------------------
Corey S. Ribotsky, Manager
NEW MILLENNIUM CAPITAL PARTNERS II, LLC
By: FIRST STREET MANAGER II, LLC
- -----------------------------------------
Corey S. Ribotsky, Manager