SCHEDULE 14C
(RULE 14c-101)
INFORMATION REQUIRED IN INFORMATION STATEMENT
SCHEDULE 14C INFORMATION
INFORMATION STATEMENT PURSUANT TO SECTION 14(c)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO.___)
Check the appropriate box:
|_| Preliminary Information Statement
|_| Confidential, for use of the Commission only (as permitted by Rule
14c-5(d)(2))
|X| Definitive Information Statement
MARKETSHARE RECOVERY, INC.
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(Name of Registrant as Specified in its Charter)
Payment of Filing Fee (Check the appropriate box):
Fee computed on table below per Exchange Act Rules 14C-5(g) and 0-11.
1. Title of each class of securities to which transaction applies:
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2. Aggregate number of securities to which transaction applies:
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3. Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:
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4. Proposed maximum aggregate value of transaction:
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[ ] Check box if any part of the fee is offset as provided by Exchange 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.
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MarketShare Recovery, Inc.
95 Broadhollow roAd, suite 101
melville, new york 11747
INFORMATION STATEMENT PURSUANT TO SECTION 14(C) OF THE
SECURITIES EXCHANGE ACT OF 1934 AND REGULATION 14C THEREUNDER
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WE ARE NOT ASKING YOU FOR A PROXY AND YOU
ARE REQUESTED NOT TO SEND US A PROXY
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To the Stockholders of MarketShare Recovery, Inc.:
NOTICE IS HEREBY GIVEN that certain stockholders of MarketShare
Recovery, Inc., a Delaware corporation ("MarketShare" or the "Company") have
consented to taking of corporate actions by consent in lieu of a meeting of
stockholders. The corporate actions will be effective 20 days after the mailing
of this information statement to:
1. Approve an amendment to our Certificate of Incorporation to
effect a reverse stock split of all of the outstanding shares
of Common Stock, at a ratio of between one-for-eight and
one-for-twelve.
2. Amend our Certificate of Incorporation to increase the number
of shares of Common Stock the Company is authorized to issue
to 50,000,000 and decrease the par value of the Company's
Common Stock to $.001; and
Only stockholders of record at the close of business on November 3,
2004 are entitled to notice of these corporate actions. Holders of 75.6% of our
Common Stock gave their written consent to the above corporate actions. This
written consent was obtained pursuant to Section 228(a) of the Delaware General
Corporation Law, as amended.
For further information regarding the matters as to which stockholder
consent was given, I urge you to carefully read the accompanying Information
Statement. If you have questions about these proposals or would like additional
copies of the Information Statement, you should contact Timothy Schmidt,
Secretary, MarketShare Recovery, Inc., 95 Broadhollow Road, Suite 101, Melville,
New York 11747; telephone: (631) 385-0007.
By order of the Board of Directors
Raymond Barton
President and Chief Executive Officer
Melville, New York
November 29, 2004
MARKETSHARE RECOVERY, INC.
95 Broadhollow Road Suite 101
Melville, New York 11747
(631)385-0007
INFORMATION STATEMENT PURSUANT TO SECTION 14(C)
OF THE SECURITIES EXCHANGE ACT OF 1934
This Information Statement (the "Information Statement") is being
mailed on or about November 29, 2004 to the holders of record at the close of
business on November 3, 2004, of the Common Stock of MarketShare Recovery, Inc.,
a Delaware corporation ("MarketShare" or the "Company"), in connection with
action by written consent in lieu of an annual meeting to authorize and approve:
1. An amendment to our Certificate of Incorporation to effect a
reverse stock split of all of the outstanding shares of Common
Stock, at a ratio of between one-for-eight and one-for-twelve.
2. An amendment to our Certificate of Incorporation increasing
the number of authorized shares of our Common Stock, to
50,000,000 shares and decreasing the par value of the
Company's Common Stock to $.001; and
Members of the Board of Directors and stockholders owning or having
voting authority for 34,537,650 shares of outstanding Common Stock have voted in
favor of the above actions (the "Consenting Stockholders"). These stockholdings
represent approximately 75.6% of the total outstanding common stock of
MarketShare sufficient to take the proposed action on the record date of
November 3, 2004. Pursuant to Reg.ss.240.14c-2(b), these actions will not be
effective until 20 days after this Information Statement is mailed to
stockholders. Dissenting stockholders do not have any statutory appraisal rights
as a result of the action taken. The Board of Directors does not intend to
solicit any proxies or consents from any other stockholders in connection with
this action.
Section 141(f) of the Delaware General Corporation Law (the "Delaware
Law") provides that any action which may be taken at any annual or special
meeting of stockholders may be taken without a meeting and without prior notice
if a consent in writing setting forth the action taken is signed by the holders
of outstanding stock having not less than the minimum number of votes that would
be necessary to take such action. In order to eliminate the costs and management
time involved in obtaining proxies and in order to effect the above actions as
early as possible in order to accomplish the purposes hereafter described, the
Board of Directors voted to utilize, and did in fact obtain, the written consent
of the Consenting Stockholders who own shares representing a majority of our
common stock.
Pursuant to Section 228(c) of the Delaware Law, we are required to
provide prompt notice of the taking of the corporate action without a meeting to
the stockholders of record who have not consented in writing to such action.
This Information Statement is intended to provide such notice. No dissenters' or
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appraisal rights under the Delaware Law are afforded to the Company's
stockholders as a result of the approval of the proposals.
This Information Statement is being distributed pursuant to the
requirements of Section 14(c) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
The entire cost of furnishing this Information Statement will be borne
by MarketShare. We will request brokerage houses, nominees, custodians,
fiduciaries and other like parties to forward this Information Statement to the
beneficial owners of the Common Stock held of record by them and will reimburse
such persons for their reasonable charges and expenses in connection therewith.
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WHAT VOTE WAS REQUIRED TO APPROVE EACH ITEM?
For the approval of the proposed corporate actions, the affirmative
vote of a majority of the shares of common stock outstanding and entitled to
vote at the record date, or 22,851,128 shares, was required for approval.
CONSENTING SHAREHOLDERS
On November 3, 2004, our board of directors unanimously adopted
resolutions declaring the advisability of, and recommended that shareholders
approve the amendment to the Company's Certificate of Incorporation to authorize
a reverse split of between one-for-eight and one-for-twelve of its shares of
common stock and to increase the number of shares the Company is authorized to
issue. In connection with the adoption of these resolutions, the board elected
to seek the written consent of the holders of a majority of our outstanding
shares in order to reduce the costs and implement the proposals in a timely
manner.
On November 3, 2004, the following consenting shareholders, who
collectively own 83.2% of our common stock, consented in writing to the proposed
Amendment:
Name No. of Shares Percentage
---- ------------- ----------
Raymond Barton 17,268,825 37.8%
Timothy Schmidt 17,268,825 37.8%
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Total 34,537,650 75.6%
Under Delaware law, we are required to give all shareholders written
notice of any actions that are taken by writtten consent without a shreholder
meeting. Under Section 14(c) of the Exchange Act, the transactions cannot become
effective until 20 days after the mailing date of this Information Statement to
our shareholders.
We are not seeking written consent from any of our shareholders and our
other shareholders will not be given an opportunity to vote with respect to the
transactions. All necessary corporate approvals have been obtained, and this
Information Statement is furnished solely for the purposes of:
o Advising shareholders of the action taken by written consent, as
required by Delaware law; and
o Giving shareholders advance notice of the actions taken, as
required by the Exchange Act.
Shareholders who were not afforded an opportunity to consent or
otherwise vote with respect to the actions taken have no right under Delaware
law to dissent or require a vote of all our shareholders.
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STOCK OWNERSHIP TABLE
This table shows the number and percentage of MarketShare common stock
owned of record and beneficially as of November 3, 2004 by each of our directors
and executive officers. The table also shows the name, address and number and
percentage of shares owned by persons owning five percent of any class.
Name and Address Number of Shares Percentage
---------------- ---------------- ----------
Raymond Barton 17,268,825 37.8%
c/o MarketShare Recovery, Inc.
95 Broadhollow Road, Suite 101
Melville, NY 11747
Timothy Schmidt 17,268,825 37.8%
c/o MarketShare Recovery, Inc.
95 Broadhollow Road, Suite 101
Melville, NY 11747
Epifanio Almodovar 3,490,000 7.6%
400 Garden City Plaza, Suite 106
Garden City, NY 11530
Stuart G. Siller 3,141,000 6.8%
3408 Fulton Avenue
Oceanside, NY 11572
Officers and directors as
a group (2 persons) 34,537,650 75.6%
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APPROVAL OF AMENDMENT OF THE COMPANY'S
CERTIFICATE OF INCORPORATION
At present, the Company is authorized to issue 50,000,000 shares of
Common Stock, and 10,000,000 shares of Preferred Stock. The Company's Board of
Directors approved an amendment to the Company's Certificate of Incorporation to
(a) reverse split the outstanding shares of the Company's Common Stock at a
ratio of between one-for-eight and one-for-twelve (the "Reverse Split"); (b)
reduce the par value of the Company's Common Stock resulting from the Reverse
Split to $.001; and (c) increase the number of shares of Common Stock the
Company is authorized to issue after the reverse split to 50,000,000. A copy of
the Amendment to the Certificate of Incorporation substantially in the form it
will be filed with the Secretary of the State of Delaware is attached hereto as
Appendix A.
REVERSE SPLIT AND REDUCTION OF PAR VALUE
As a result of the Reverse Split, each share of Common Stock
outstanding at the effective time of the Reverse Split, will, without any action
on the part of the holder thereof, each outstanding share will become between
one-eighth and one-twelfth of a share of Common Stock. Within those parameters,
the Board will have the final decision of the ratio of the Reverse Split. The
amendment will also decrease the par value per share of the Company's common
stock to $.001. The decrease in the par value per share will reduce the
Company's capital stock accounts. For purposes of this description, the Common
Stock, as presently constituted, is referred to as the "Old Common Stock" and
the Common Stock resulting from the Reverse Split is referred to as the "New
Common Stock." The bid price of the Company's Common Stock on November 29, 2004
was $.02.
The Reverse Split will become effective upon the filing with the
Secretary of State of an amendment to the Company's Certificate of Incorporation
which states that, upon the filing of the Certificate of Amendment, each share
of Old Common Stock then issued and outstanding would automatically become such
fraction of a share of New Common Stock as determined by the Board.
Principal Effects of the Reverse Split
The principal effects of the Reverse Split will be as follows:
Based upon the 45,702,256 shares of Old Common Stock outstanding on the
Record Date, the Reverse Split of one-for-eight and one-for-twelve would
decrease the outstanding shares of Old Common Stock by approximately 87.5% and
91.7%, respectively, or to 5,712,782 or 3808,521 shares, respectively. The
Reverse Split of one-for-eight and one-for-twelve also decreases the authorized
number of shares of Common Stock from 50,000,000 to 6,250,000 or 4,166,661
shares respectively.
The Company will obtain a new CUSIP number for the New Common Stock at
the time of the Reverse Split. Following the effectiveness of the Reverse Split,
each yet to be determined number of shares of Old Common Stock, without any
action on the part of the holder, will represent one share of New Common Stock.
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Subject to the provisions for elimination of fractional shares, as
described below, consummation of the Reverse Split will not result in a change
in the relative equity position or voting power of the holders of Old Common
Stock.
The Amendment to the Company's Certificate of Incorporation will be
filed with the Secretary of State of Delaware twenty days after the mailing of
this Information Statement. The Reverse Split would become effective as of the
date of such filing (the "Effective Date").
Purposes of the Reverse Stock Split
The Reverse Split will decrease the number of shares of Old Common
Stock outstanding and presumably increase the per share market price for the New
Common Stock. Theoretically, the number of shares outstanding should not, by
itself, affect the marketability of the stock, the type of investor who acquires
it, or the Company's reputation in the financial community, but in practice this
is not necessarily the case, as many investors look upon a stock trading at or
under $1.00 per share as unduly speculative in nature and, as a matter of
policy, avoid investment in such stocks.
Many leading brokerage firms are reluctant to recommend lower-priced
securities to their clients and a variety of brokerage house policies and
practices currently tend to discourage individual brokers within firms from
dealing in lower-priced stocks. Some of those policies and practices pertain to
the payment of brokers' commissions and to time-consuming procedures that make
the handling of lower priced stocks unattractive to brokers from an economic
standpoint. In addition, the structure of trading commissions also tends to have
an adverse impact upon holders of lower priced stocks because the brokerage
commission on a sale of a lower priced stock generally represents a higher
percentage of the sales price than the commission on a relatively higher priced
issue.
The Board of Directors believes that the Reverse Split is in the best
interest of the Company and its shareholders because it will better position the
Company to make acquisitions that will provide shareholders with an operating
business with the potential for rapid growth. The Company had entered into an
Asset Purchase Agreement with Palomar Enterprises, Inc. to acquire certain
assets including certain automotive notes and contracts and a business model for
an automotive financial services company. The Company and Palomar, by mutual
agreement, terminated the Asset Purchase Agreement. The Company has had
discussions with other potential acquisition candidates, but there are no
understandings, commitments or agreements at this time. Additionally, the
reverse stock split would reduce the number of shares of its Common Stock
outstanding to amounts that the Board of Directors believes are more reasonable
in light of its size and market capitalization. The Company requires additional
capital for its operations and does not believe that it will be able to raise
the necessary capital unless the price of the Common Stock is higher than the
current Common Stock price levels. However, no assurance can be given that the
Reverse Split will result in any increase in the Common Stock price or that the
Company will be able to complete any financing following the Reverse Split.
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Exchange of Certificate and Elimination of Fractional Share Interests
On the Effective Date, shares of Old Common Stock will automatically be
combined and changed into one share of New Common Stock. No additional action on
the part of the Company or any shareholder will be required in order to effect
the Reverse Split. Shareholders will be requested to exchange their certificates
representing shares of Old Common Stock held prior to the Reverse Split for new
certificates representing shares of New Common Stock. Shareholders will be
furnished the necessary materials and instructions to effect such exchange
promptly following the Effective Date. Certificates representing shares of Old
Common Stock subsequently presented for transfer will not be transferred on the
books and records of the Company but will be returned to the tendering person
for exchange. Shareholders should not submit any certificates until requested to
do so. In the event any certificate representing shares of Old Common Stock is
not presented for exchange upon request by the Company, any dividends that may
be declared after the Effective Date of the Reverse Split with respect to the
Common Stock represented by such certificate will be withheld by the Company
until such certificate has been properly presented for exchange, at which time
all such withheld dividends which have not yet been paid to a public official
pursuant to relevant abandoned property laws will be paid to the holder thereof
or his designee, without interest.
No fractional shares of New Common Stock will be issued to any
shareholder. Accordingly, shareholders of record who would otherwise be entitled
to receive fractional shares of New Common Stock, will, upon surrender of their
certificates representing shares of Old Common Stock, receive a cash payment in
lieu thereof equal to the fair value of such fractional share. Holders of up to
twelve shares of Old Common Stock (depending upon the amount of the Reverse
Split), as a result of the Reverse Split, will on the Effective Date no longer
be shareholders of the Company. The Board of Directors had determined that the
fair value of the Common Stock will be based on the closing price of the Common
Stock on the OTC-Bulletin Board on the Effective Date (as adjusted to reflect
the Reverse Split) or, if there are no reported sales on the Effective Date, the
average of the last reported high bid and low ask price on the last date of
reported sales shall be used.
Federal Income Tax Consequences of the Reverse Split
The combination of shares of the Old Common Stock into one share of New
Common Stock should be a tax-free transaction under the Internal Revenue Code of
1986, as amended, and the holding period and tax basis of the Old Common Stock
will be transferred to the New Common Stock received in exchange therefor.
Generally, cash received in lieu of fractional shares will be treated
as a sale of the fractional shares (although in unusual circumstances such cash
might possibly be deemed a dividend), and shareholders will recognize gain or
loss based upon the difference between the amount of cash received and the basis
in the surrendered fractional share.
This discussion should not be considered as tax or investment advice,
and the tax consequences of the Reverse Split may not be the same for all
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shareholders. Shareholders should consult their own tax advisors to know their
individual Federal, state, local and foreign tax consequences.
CHANGE IN AUTHORIZED CAPITAL STOCK
The Board of Directors has approved an amendment to the Company's
Certificate of Incorporation which would change the number of authorized shares
of Common Stock, and the par value to $.001 per share. The number of authorized
common shares would be increased to 50,000,000 shares.
Discussion of the Amendment
Under the Company's Certificate of Incorporation, the Board of
Directors of the Company has authority to issue authorized and unissued shares
of Common and Preferred Stock without obtaining approval from the holders of the
Common Stock. The holders of the Company's Common Stock and Preferred Stock do
not have preemptive rights. The Preferred Stock provisions give the Board of
Directors broad authority to issue shares of Preferred Stock in one or more
series and to determine such matters as the dividend rate and preference, voting
rights, conversion privileges, redemption provisions, liquidation preferences
and other rights of each series. Each share of Common Stock is entitled to one
vote. The holders of any series of preferred stock issued in the future will be
entitled to such voting rights as may be specified by the Board of Directors.
It is not possible to determine the actual effect of the Preferred
Stock on the rights of the holders of Common Stock until the Board of Directors
determines the rights of the holders of a series of the Preferred Stock.
However, such effect might include (i) restrictions on the payment of dividends
to the holders of the Common Stock; (ii) dilution of voting power to the extent
that the holder of the Preferred Stock are given voting rights; (iii) dilution
of the equity interests and voting powers if the Preferred Stock is convertible
into Common Stock; and (iv) restrictions upon any distribution of assets to the
holders of the Common Stock upon liquidation or dissolution and until the
satisfaction of any liquidation preference granted to the holders of Preferred
Stock. Because of the broad powers granted to the Board of Directors to issue
shares of Preferred Stock and determine the rights, preferences and privileges
of the holders of such series, the Board of Directors has the power to issue
shares of Preferred Stock in a manner which could be used as a defensive measure
against a hostile takeover or to keep the Board of Directors in power. However,
the Board of Directors has no present plans to issue shares for such purpose.
PURPOSE
It is important we preserve our flexibility to issue additional shares
of Common Stock. The Board believes that the authorization of additional
authorized shares of Common Stock is advisable to provide us with the
flexibility to take advantage of opportunities to issue such stock in order to
obtain capital, as consideration for possible acquisitions or for other purposes
including, without limitation, the issuance of additional shares of Common Stock
through stock splits and stock dividends in appropriate circumstances. There
are, at present, no plans, understandings, agreements or arrangements concerning
the issuance of additional shares of Common Stock, except for the shares to be
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issued pursuant to existing agreements or upon the exercise of stock options,
warrants or other convertible securities, currently outstanding.
EFFECTS OF AN INCREASE IN AUTHORIZED SHARES
Uncommitted authorized but unissued shares of Common Stock may be
issued from time to time to such persons and for such consideration as the Board
may determine. Holders of the then outstanding shares of Common Stock may or may
not be given the opportunity to vote thereon, depending upon the nature of any
such transactions, applicable law, the rules and policies of the Over the
Counter Bulletin Board ("OTCBB") or other market which we qualify Common Stock
for trading, as the case may be, and the judgment of the Board regarding the
submission of such issuance to a vote of our stockholders. Our stockholders have
no preemptive rights to subscribe to newly issued shares.
Moreover, it is possible that additional shares of Common Stock would
be issued under circumstances which would make the acquisition of a controlling
interest in us more difficult, time-consuming, costly or otherwise discourage an
attempt to acquire control of us. Under such circumstances the availability of
authorized and unissued shares of Common Stock may make it more difficult for
stockholders to obtain a premium for their shares. Such authorized and unissued
shares could be used to create voting or other impediments or to frustrate a
person seeking to obtain control of us by means of a merger, tender offer, proxy
contest or other means. Such shares could be privately placed with purchasers
who might cooperate with the board in opposing such an attempt by a third party
to gain control of us or could also be used to dilute ownership of a person or
entity seeking to obtain control of us. Although we do not currently contemplate
taking such action, shares of Common Stock could be issued for the purposes and
effects described above and the Board reserves its rights to issue such stock
for such purposes.
The authorization of additional shares of Common Stock pursuant to this
proposal will have no dilutive effect upon the proportionate voting power of our
present stockholders. However, to the extent that shares are subsequently issued
to persons other than our present stockholders, such issuance could have a
dilutive effect on the earnings per share and voting power of present
stockholders. If such dilutive effect on earnings per share occurs, we expect
that any such dilutive effect would be relatively short in duration. As
described above, we believe that the proposed increase in the number of
authorized shares of Common Stock will provide the flexibility needed to meet
corporate objectives and is in the best interest of our stockholders.
FORWARD LOOKING STATEMENTS
This Information Statement and other reports that we file with the SEC
contain forward-looking statements about our business containing the words
"believes," "anticipates," "expects" and words of similar import. These
forward-looking statements involve known and unknown risks, uncertainties and
other factors that may cause our actual results or performance to be materially
different from the results or performance anticipated or implied by such
forward-looking statements. Given these uncertainties, shareholders are
cautioned not to place undue reliance on forward-looking statements. Except as
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specified in SEC regulations, we have no duty to publicly release information
that updates the forward-looking statements contained in this Information
Statement. An investment in our Company involves numerous risks and
uncertainties, including those described elsewhere in this Information
Statement. Additional risks will be disclosed from time-to-time in our future
SEC filings.
ADDITIONAL INFORMATION
This Information Statement should be read in conjunction with certain
reports that we previously filed with the Securities and Exchange Commission
(the "SEC"), including our:
o Annual Report for the year ended December 31, 2003 (the "Form
10-KSB");
o Quarterly Report for the period ended September 30, 2004 (the
"Form 10-QSB")
Copies of these reports are not included in this Information Statement
but may be obtained from the SEC's web site at "www.sec.gov." We will mail
copies of our prior SEC reports to any shareholder upon written request.
BY ORDER OF THE BOARD OF DIRECTORS
/s/ Raymond Barton
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Raymond Barton, President
Melville New York
November 29, 2004
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