UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
Filed by the Registrant |X|
Filed by a Party other than the Registrant |_|
Check the appropriate box:
|_| Preliminary Proxy Statement
|_| Confidential, for Use of the Commission Only (as Permitted by Rule
14a-6(e)(2))
|X| Definitive Proxy Statement
|_| Definitive Additional Materials
|X| Soliciting Material Pursuant to ss.240.14a-12
Torbay Holdings, Inc.
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(Name of Registrant as Specified in its Charter)
Payment of Filing Fee (Check the appropriate box):
|X| No fee required.
|_| Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed pursuant
to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
|_| Fee paid previously with preliminary materials.
|_| Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON SEPTEMBER 13, 2005
Dear Stockholder:
You are cordially invited to attend the Special Meeting of Stockholders of
Torbay Holdings, Inc. ("we or "us") on Tuesday, September 13, 2005 at 11:00
a.m., Eastern Standard Time, at Wingate Inn, 821 Stewart Avenue, Garden City,
New York. The Special Meeting has been called for the following purposes:
1. To adopt and approve an amendment to our Certificate of
Incorporation which would increase the number of shares of Common
Stock we are authorized to issue from 100,000,000 to 250,000,000;
and
2. To transact such other business as may properly come before the
meeting or any adjournment or postponement thereof.
Our Board of Directors has fixed the close of business on July 29, 2005 as
the record date for the determination of stockholders having the right to notice
of, and to vote at, the Special Meeting. Only stockholders of record on the
record date are entitled to notice of, and to vote at, the meeting and any
adjournment or postponement thereof.
A Proxy Statement and proxy are enclosed with this notice. If you are
unable to attend the Special Meeting in person you are urged to sign, date, and
return the enclosed proxy promptly in the envelope provided, which requires no
postage if mailed within the United States. If you attend the Special Meeting in
person, you may withdraw your proxy and vote your shares.
PLEASE COMPLETE AND RETURN THE ENCLOSED PROXY IN THE ENVELOPE PROVIDED WHETHER
OR NOT YOU INTEND TO BE PRESENT AT THE SPECIAL MEETING IN PERSON.
By Order of the Board of Directors
Alexander Gordon Lane
Chairman of the Board
Mineola, New York
August 22, 2005
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TORBAY HOLDINGS, INC.
140 Old Country Road, Suite 205
Mineola, New York 11501
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PROXY STATEMENT
SPECIAL MEETING OF STOCKHOLDERS
SEPTEMBER 13, 2005
INFORMATION CONCERNING SOLICITATION AND VOTING
General
The accompanying proxy is solicited on behalf of the Board of Directors of
Torbay Holdings, Inc., a Delaware corporation (the "Company," "our," "we" or
"us"), for use at the Special Meeting of Stockholders to be held at Wingate Inn,
821 Stewart Avenue, Garden City, New York, on September 13, 2005, at 11:00 am,
Eastern Standard Time. Our telephone number is 516-747-5955.
This Proxy Statement and the enclosed proxy card are first being mailed on or
about August 23, 2005 to stockholders entitled to vote at the Special Meeting.
At the Special Meeting, our stockholders will be asked:
1. To approve an Amendment to our Certificate of Incorporation which
would increase the number of shares of common stock, par value
$.0001 per share ("Common Stock") we are authorized to issue from
100,000,000 to 250,000,000;
2. To consider and act upon any other business which may properly come
before the Special Meeting or any adjournment or postponement
thereof.
Our Financial Information
Our financial statements and related information are hereby incorporated by
reference to our 2004 Annual Report on Form 10-KSB.
Who Can Vote
You can vote your shares of Common Stock if our records show that you held your
shares as of the close of business on the Record Date of July 29, 2005. At the
close of business on the Record Date, there were 91,038,487 shares of Common
Stock and 420,000 shares of our Series 1 Convertible Preferred Stock, par value
$.0001 per share ("Series 1 Convertible Preferred Stock") outstanding. Each
share of Common Stock entitles the holder thereof to one vote, and each share of
Series 1 Convertible Preferred Stock entitles the holder thereof to one vote, on
each matter to be voted on at the Special Meeting.
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Cost of this Proxy Solicitation
We will pay the cost of soliciting proxies. In addition to soliciting
stockholders by mail and through our regular employees, we will request banks,
brokers and other nominees to solicit their customers who hold our stock in
street name and will reimburse them for their reasonable, out-of-pocket costs.
We may use our officers, directors and others to solicit proxies, personally or
by telephone, facsimile or electronic mail. None of these individuals will
receive any additional or special compensation for soliciting proxies.
Voting Your Proxy
If you hold your Common Stock in street name through a bank, broker or other
nominee, you will receive instructions from your bank, broker or other nominee
that you must follow to vote your shares. If you hold your shares in your own
name as a holder of record, you may vote by signing, dating and mailing the
proxy card in the postage-paid envelope that we have provided to you. The
proxies will vote your shares as you instruct. Of course, you can always attend
the meeting and vote your shares in person. If you sign and return a proxy card
without specific voting instructions, your shares will be voted as recommended
by our Board of Directors.
Revoking Your Proxy
To revoke your proxy if you are a holder of record, you must advise us in
writing before the meeting, deliver a validly executed proxy with a later date
that we receive prior to the meeting, or attend the Special Meeting and vote
your shares in person. You may revoke your proxy at any time before your shares
are voted.
Quorum
Pursuant to our By-laws, the Special Meeting will be held if a majority of the
outstanding shares of Common Stock entitled to vote is represented at the
meeting. Shares that are voted "FOR," "AGAINST," "ABSTAIN" or "WITHHELD" on a
matter are treated as being present at the meeting for purposes of establishing
a quorum and are also treated as shares entitled to vote on that matter at the
Special Meeting (the "Votes Cast").
Abstentions
Although the law in Delaware is unclear on the proper treatment of abstentions,
we intend to count abstentions for purposes of determining whether a quorum is
present. Abstentions will have the same effect as votes against the proposal,
because approval requires a vote in favor of the proposal by a specified
majority.
Broker Non-Votes
Under Delaware law, shares as to which a broker indicates that it does not have
discretionary authority to vote ("broker non-vote") will be treated as present
at the Special Meeting for the purposes of determining a quorum, and shares
represented by broker non-votes will not be counted for purposes of determining
the number of votes cast with respect to the particular proposal on which the
broker has expressly not voted. We intend to treat broker non-votes in this
manner. Accordingly, a broker non-vote will make a quorum more readily
obtainable, but the broker non-vote will have the effect of a vote against the
proposal to amend the Certificate of Incorporation.
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Security Ownership of Certain Beneficial Owners and Management
The following table contains certain information regarding beneficial ownership
of the voting securities as of August 8, 2005 by (i) persons known to us to be
the beneficial owner of more than 5% of our voting securities, (ii) each of our
current Directors, (iii) each executive officer, and (iv) all Directors and
executive officers as a group.
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Amount and
Nature of
Name and Address Beneficial Percent of
Beneficial Ownership Title of Class Ownership (1) Class (2)
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Nutmeg Group, LLC Common Stock 22,826,389(3) 20.24%
3246 Commercial Avenue
Northbrook, Illinois 60062
William Thomas Large Common Stock 5,099,582(4) 5.5%
140 Old Country Road, Suite 105
Mineola, New York 11501
Thomas A. Marchant Common Stock 921,638 1.0%
140 Old Country Road, Suite 105
Mineola, New York 11501
Alexander Gordon Lane Common Stock 704,825(5) .76%
140 Old Country Road, Suite 105
Mineola, New York 11501
All Directors and Officers of the Company Common Stock 6,726,045 7.26%
as a group (3 persons)
(1) In general, beneficial ownership includes those shares that a person has the
power to vote, sell, or otherwise dispose. Beneficial ownership also includes
that number of shares, which an individual has the right to acquire within 60
days (such as stock options) of the date this table was prepared. Two or more
persons may be considered the beneficial owner of the same shares. "Voting
power" is the power to vote or direct the voting of shares, and "investment
power" includes the power to dispose or direct the disposition of shares. The
inclusion in this section of any shares deemed beneficially owned does not
constitute an admission by that person of beneficial ownership of those shares.
(2) Computed based upon a total of 91,038,487 shares of Common Stock outstanding
as of August 8, 2005.
(3) Under a stock subscription agreement made by Nutmeg Group, LLC and accepted
by the Company in August 2004, Nutmeg Group was granted an aggregate of
21,500,000 shares of Common Stock issuable upon exercise of currently
exercisable warrants and was issued 1,388,889 shares of common stock (of which
Nutmeg Group has sold 62,500 shares, leaving a total of 1,326,389 shares of
common stock owned by Nutmeg Group). Nutmeg Group, LLC is a U.S. Virgin Islands
limited liability company of which Randall Goulding and Michael Montaigne each
own 50% of the outstanding membership interests. Nutmeg Group, LLC is managed by
a Board of four persons, including Randall Goulding, Michael Montaigne, Brandon
Goulding and Randi White. Such persons share the voting and investment power
over the securities owned by Nutmeg Group, LLC, including the Company's
securities.
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(4) Includes 120,000 shares of our Common Stock owned by Mr. Large's minor
children. Does not include 880,000 shares which the Company has agreed to issue
to Mr. Large to repay a personal loan in the amount of $45,956.65 made by Mr.
Large to the Company in November 2004.
(5) Does not include certain number of shares which the Company has agreed to
issue to Mr. Lane in the event that the Company fails to repay a personal loan
in the amount of $20,629.28 made by Mr. Lane to the Company in February 2005.
We do not believe there was any change in control of the Company during the last
fiscal year ended December 31, 2004. However, as described in footnote (3) to
the security beneficial ownership table, Nutmeg Group, LLC acquired 20.3% of the
Common Stock of the Company pursuant to a stock subscription in August, 2004.
PROPOSAL 1
ADOPTION OF AN AMENDMENT TO THE CERTIFICATE OF INCORPORATION
At the Special Meeting, our stockholders will be asked to adopt an Amendment to
our Certificate of Incorporation increasing the number of authorized shares of
our Common Stock from 150,000,000 to 250,000,000.
As of July 29, 2005 the authorized capital stock of the Company consists of
100,000,000 shares of Common Stock, par value $.0001 per share, of which there
are 91,038,487 shares issued and outstanding, and 20,000,000 shares of preferred
stock, par value $.0001 per share, of which there are 420,000 shares are issued
and outstanding.
The Board of Directors therefore believes that it is prudent to authorize an
additional 150,000,000 shares of Common Stock to enable the Company to perform
all of its potential share issuance obligations, such as the obligation under
the stock subscription agreement described in footnote (3) to the security
beneficial ownership table, as well as to have available additional shares of
Common Stock for such corporate purposes as the Board of Directors, from time to
time, may deem necessary and advisable, including, but not limited to,
acquisitions, financings, stock dividends and other proper corporate purposes.
The increase in authorized shares will not have any immediate effect on the
rights of existing stockholders. However, any sale of a substantial number of
shares of Common Stock to persons who have an understanding with the Company
concerning the voting of such shares, or the distribution or dividend of shares
of Common Stock (or any right to receive Common Stock) to the stockholders of
the Company, may have the effect of discouraging unsolicited attempts to acquire
control of the Company. In addition, any issuance of additional shares of Common
Stock could have the effect of diluting the earnings per share and book value
per share of existing shares of Common Stock which could be used to dilute the
stock ownership of a person seeking to obtain control of the Company.
If the proposed amendment is approved, the additional shares may be issued for
proper purposes under the terms and conditions approved by the Board of
Directors without further action by the stockholders, except as may be required
by the rules and policies of any stock exchanges on which the Common Stock may
then be listed.
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Except as discussed above, the Company has no present plans, understandings or
agreements which will involve the issuance of additional shares of Common Stock.
However, the Company may in the future issue additional shares of Common Stock
in connection with public offerings, further employee stock options,
acquisitions of other companies or product lines, stock dividends or for other
corporate purposes.
Neither the shares currently authorized nor the additional shares proposed to be
authorized will carry pre-emptive rights when issued. The issuance of such
shares could have a dilutive effect on outstanding shares.
Vote Required
The affirmative vote of a majority of all of the outstanding shares of Common
Stock and Series 1 Convertible Preferred Stock is required for approval of the
Amendment to the Certificate of Incorporation to increase the number of
authorized shares of Common Stock.
OUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE "FOR" APPROVAL OF THE AMENDMENT
TO THE CERTIFICATE OF INCORPORATION.
OTHER MATTERS
As of the date of this Proxy Statement, our Board of Directors does not intend
to bring any other business before the Special Meeting and, as far as is known
to us, no matters are to be brought before the Special Meeting except as
specified in this Notice of Special Meeting; however, as to any other business
that may properly come before the Special Meeting, it is intended that proxies,
in the form enclosed, will be voted in respect thereof in accordance with the
judgment of the persons voting such proxies.
STOCKHOLDER PROPOSALS FOR THE ANNUAL MEETING
Stockholders are entitled to present proposals for action at a forthcoming
stockholders' meeting if they comply with the requirements of the proxy rules.
Any proposals intended to be presented at our next Annual Meeting of
Stockholders (expected to be held in 2006) must be received at our offices on or
before April 15, 2006 in order to be considered for inclusion in our proxy
statement and form of proxy relating to such meeting.
The attached proxy card grants the proxy holders discretionary authority to vote
on any matter raised at this Special Meeting. If a stockholder intends to submit
a proposal at the 2006 Annual Meeting of Stockholders of the Company, which
proposal is not intended to be included in our proxy statement and form of proxy
relating to such meeting, the stockholder must give the Company appropriate
notice no later than June 1, 2006. If we do not receive notice of the proposal
by such date, the proposal will not be submitted to our stockholders for
approval at our 2006 Annual Meeting of Stockholders.
ADDITIONAL INFORMATION
The Company will make available to any stockholder, without charge, and upon a
written request therefor, additional copies of the Company's Report on Form
10-KSB for the fiscal year ended December 31, 2004. Any such request should be
directed to Torbay Holdings, Inc., Attention: Alexander Gordon Lane at the
following address: 140 Old Country Road, Suite 205, Mineola, New York 11501.
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Alexander Gordon Lane
Chairman of the Board
August 22, 2005
Mineola, New York
YOU ARE CORDIALLY INVITED TO ATTEND THE SPECIAL MEETING IN PERSON. WHETHER OR
NOT YOU PLAN TO ATTEND THE MEETING, PLEASE MARK, SIGN, DATE AND RETURN THE
ENCLOSED PROXY AS PROMPTLY AS POSSIBLE IN THE ENCLOSED POSTAGE PREPAID ENVELOPE.
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PROXY
TORBAY HOLDINGS, INC.
Solicited on Behalf of the Board of Directors
The undersigned hereby appoints Alexander Gordon Lane, William Thomas Large and
Thomas Marchant (with full power to act without the other and with power to
appoint his or her substitute) as the undersigned's proxies to vote all of the
undersigned's shares of Common Stock of TORBAY HOLDINGS INC., a Delaware
corporation (the "Company"), which the undersigned would be entitled to vote at
the Special Meeting of Shareholders of the Company (the "Special Meeting") to be
held at Wingate Inn, 821 Stewart Avenue, Garden City, New York, on September 13,
2005 at 11:00 a.m., Eastern Standard Time, and at any and all adjournments
thereof as follows:
I. Proposal to adopt the Amendment to the Certificate of Incorporation of the
Company to increase the number of authorized shares of Common Stock from
100,000,000 shares to 250,000,000.
|_| FOR |_| AGAINST |_| ABSTAIN
II. In their discretion, such other business as may properly come before the
Special Meeting and any and all adjournments thereof.
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The shares of Common Stock represented by this Proxy will be voted in
accordance with the foregoing instructions. In the absence of any
instructions, such shares will be voted for the proposal in Item I.
The undersigned hereby acknowledges receipt of the Notice of Special
Meeting of Shareholders to be held on September 13, 2005, the Proxy
Statement of the Company, each dated August 22, 2005.
The undersigned hereby revokes any proxy to vote shares of Common Stock of
the Company heretofore given by the undersigned.
Dated:
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Signature
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Signature, if held jointly
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Title (if applicable)
Please date, sign exactly as your name appears on
this Proxy and promptly return in the enclosed
envelope. In the case of joint ownership, each
joint owner must sign. When signing as guardian,
executor, administrator, attorney, trustee,
custodian, or in any other similar capacity,
please give full title. If a corporation, sign in
full corporate name by president or other
authorized officer, giving title, and affix
corporate seal. If a partnership, sign in
partnership name by authorized person.
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