013fCONSULTING AGREEMENT
THIS AGREEMENT, made as of the 23rd day of May, 2005, by and between GREENSHIFT
CORPORATION, having its principal office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Consultant"), and TDS (TELEMEDICINE), INC., a New
York corporation ("TDST").
WHEREAS, Consultant has substantial managerial, legal, accounting, regulatory
and merchant banking expertise;
WHEREAS, TDST is seeking to complete a strategic transaction with Alfa
Industries, Inc., and/or its affiliates (the "Strategic Transaction"); and,
WHEREAS, the parties which to enter into a consulting arrangement whereby
Consultant will provide TDST with its services to complete TDST's strategic
transaction.
NOW THEREFORE, in consideration of the mutual premises and covenants herein set
forth and for other good and valuable consideration, the receipt of which by
each of the parties hereto is hereby acknowledged, it is agreed as follows:
1. 1. ENGAGEMENT AS CONSULTANT. TDST hereby retains Consultant to render
consulting services to TDST (the "Consultant Services"). The Consultant
Services shall include, but shall not be limited to, locating interim
management, locating and negotiating with suitable acquisition candidates,
negotiating and settling various claims of TDST's creditors, assistance
with bringing TDST's various filings up to date, and assisting with
creating and implementing a plan to restructure TDST.
2. 2. TERM. The term of this Agreement shall commence as of the date hereof,
and shall continue in full force and effect for a period of one (1) year
thereafter, subject to the provisions for termination as hereinafter
provided.
3. 3. CONSULTING FEES. TDST shall complete a 100:1 reverse stock split (the
"Reverse Split"), after which it will have 1,200,000 shares of common stock
outstanding. In return for the Consultant Services, the Consultant shall
receive the following:
(a) THREE MILLION (3,000,000) split-adjusted shares of registered TDST
common stock immediately upon completion of the Reverse Split; .
(b) ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000) in the form of
registered and price-protected TDST common stock, which shares shall
be due and payable to the Consultant upon the completion by TDST of
the Strategic Transaction; and,
(c) Reimbursement of the expenses incurred by the Consultant during its
performance hereunder in the form of additional shares of
price-protected TDST common stock, which shares shall be due and
payable to the Consultant upon the completion by TDST of the Strategic
Transaction.
(d) Price-Protection Mechanics. The shares of TDST common stock to be
issued to the Consultant pursuant to Sections 3(b) and 3(c) hereof
(the "Protected Shares") shall be fully price-protected by TDST such
that they shall be and at all times remain equal to the aggregate
dollar amount paid to Consultant hereunder upon issuance (the
"Protected Amount"). If, at any time after the initial issuance
hereunder, the Protected Shares are worth less than the Protected
Amount, then TDST shall issue to Consultant additional Protected
Shares such that the total amount of Protected Shares held by the
Consultant is and remains at all times equal to the Protected Amount;
provided, however, that the Protected Amount shall be reduced by the
amount of any cash proceeds received by the Consultant upon any
liquidation by the Consultant of any Protected Shares.
4. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that the
services to be provided by Consultant under this Agreement are services
rendered by it solely as an independent contractor and not as an employee
of TDST. Consultant shall not be authorized to create or assume any
liability or obligation of any kind for or on behalf of TDST. As an
independent contractor, Consultant shall remain fully responsible for
complying with all applicable federal and state laws and, more
specifically, for payment of all taxes or contributions which may be
payable based upon Consultant' s receipt of compensation hereunder,
including, but not limited to, federal and state income taxes, social
security taxes, unemployment compensation taxes, and any other applicable
taxes or business license fees.
2. 5. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
(a) Except as expressly set forth herein, neither this Agreement nor any
services to be performed hereunder shall be construed as granting to
Consultant any license or right in or to any patent, copyright,
trademark or other proprietary right of TDST.
(b) The parties acknowledge that their relationship with the other is one
of high trust and confidence and that in the course of performing the
services contemplated by this Agreement each will have access to and
contact with Proprietary Information. The parties agree that neither
will, during the term of this Agreement or at any time thereafter,
disclose to others, or use for its benefit or the benefit of others,
any Proprietary Information.
(c) For purposes of this Agreement, "Proprietary Information" shall mean,
by way of illustration and not limitation, all information (whether or
not patentable or copyrightable or able to be protected by trademark)
owned, possessed or used by either party, including, without
limitation, TDST's technology and know-how related thereto,
inventions, formulas, employee information, organizational plans,
customer information, apparatus, equipment, trade secrets, processes,
research, reports, technical data, know-how, marketing and brand
plans, strategic and business plans, brand names, logos, market
research or analyses, training materials and business methodologies,
projections, forecasts, unpublished financial statements, budgets,
licenses, prices, costing and employee lists that are communicated to,
learned of, developed or otherwise acquired by either party in the
course of rendering performance hereof.
(d) The parties' obligations under this Section shall not apply to any
information that (i) is or becomes known to the general public under
circumstances involving no breach by Distributor or others of the
terms of this Section, (ii) is generally disclosed to third parties by
the other without restriction on such third parties, or (iii) is
approved for release by written authorization of the president of the
relevant party.
(e) Upon termination of this Agreement or at any other time upon request
by either party, the requesting party shall promptly deliver to the
other all records, files, a computer-readable version of all mailing
lists and databases, memoranda, notes, designs, data, reports, price
lists, customer lists, drawings, plans, computer programs, software,
software documentation, sketches, laboratory and research notebooks
and other documents (and all copies or reproductions of such
materials) relating to the business of the requesting party.
(f) The parties represent that their performance under this Agreement does
not, and shall not, breach any agreement that obligates it to keep in
confidence any trade secrets or confidential or proprietary
information of its own or of any other party or to refrain from
competing, directly or indirectly, with the business of any other
party.
6. NOTICES. Any notice required or permitted to be given under this Agreement
shall be sufficient if in writing and if sent by certified or registered
mail, to the parties at the following addresses:
To the Corporation:
TDS (Telemedicine), Inc
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To Consultant:
GreenShift Corporation
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Any notice required or permitted hereunder shall be
effective upon receipt.
7. MISCELLANEOUS.
(a) Corporate Authorization. Each party represents and warrants that it
has full power, capacity and authority to execute and deliver this
Agreement and the related agreements, and to consummate the
transactions contemplated hereby; the execution and delivery of this
Agreement, and the consummation of the transactions contemplated
hereby, have been duly and validly authorized by such party, and no
other proceedings are necessary to authorize this Agreement, or to
consummate the transactions contemplated hereby; and this Agreement
has been duly and validly executed and delivered by such party, and
constitutes the legal, valid and binding agreement of such party. .
(b) No Approvals Required. There is no authorization, consent, order or
approval of, or notice to or filing required to be obtained or given
in order for such party to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to fully perform
its obligations hereunder.
(c) No Violations. The execution,
delivery and performance by either party of this Agreement, and the
consummation by either party of the transactions contemplated hereby
and thereby, will not, with or without the giving of notice or lapse
of time or both, (i) violate any provision of law, statute, rule or
regulation to which either party is subject, (ii) violate any order,
judgment or decree applicable to either party, (iii) conflict with or
result in a breach or default under any term or condition of the
corporate charter or bylaws of either party, or (iv) violate or result
in a breach or default of any term or condition of any contract or
agreement with any third party.
(d) Governing Law and Jurisdiction. The rights and obligations of the
parties under this Agreement shall in all respects be governed by the
laws of the State of New Jersey. The parties agree that venue and
jurisdiction for any action arising out of this Agreement shall be
proper in and only in the Superior Court of the State of New Jersey,
County of Passaic, and the parties consent to the jurisdiction of such
court.
(e) Severability. The provisions of this Agreement are intended to be
severable. If any term or provision of this Agreement or the
application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement
or the application of such term or provision to persons or
circumstances other than those as to which it shall be held invalid or
unenforceable shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the
maximum extent permitted by law.
(f) Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts and any party hereto may execute any such
counterpart, each of which when executed and delivered shall be deemed
to be an original and all of which counterparts taken together shall
constitute but one and the same instrument. This Agreement shall
become binding when one or more counterparts taken together shall have
been executed by all of the parties reflected as the signatories
hereto and delivered to all of the other parties hereto.
(g) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter of this
Agreement and supersedes all prior understandings and writings
relating to the subject matter of this Agreement.
(h) Waiver. No failure by any party to insist upon the strict performance
of any covenant, agreement, term or condition of this Agreement or to
exercise any right or remedy consequent upon a breach hereof shall
constitute a waiver of any such breach or any other covenant,
agreement, term or condition. Any party by notice may, but shall be
under no obligation to, waive any of its rights or any conditions to
its obligations hereunder, or any covenant or agreement of any other
party to this Agreement. No waiver shall be deemed to have been made
unless expressed in writing and signed by such party. No waiver shall
affect or alter the remainder of this Agreement but each and every
covenant, agreement, term and condition hereof shall continue in full
force and effect with respect to any other then existing or subsequent
breach.
(i) Approvals and Consents. Whenever the consent or approval of a party is
required under any provision of this Agreement or a matter is subject
to the satisfaction of a party then, except as otherwise specifically
provided in this Agreement, such party shall not unreasonably withhold
such consent or approval, shall not be unreasonable in deciding
whether such matter is satisfactory, and shall not unreasonably delay
communicating its decision. Whenever in this Agreement it is provided
that it shall be necessary for one party to have another party's
consent or approval to any action, such consent or approval must be
received in writing prior to the taking of the action to which it
relates.
(j) Amendments. This Agreement may not be modified or amended without the
written consent of all parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
TDS (TELEMEDICINE), INC.
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ President Chairman and Chief Executive Officer
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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