SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. 2)
[x] Filed by the Registrant
[ ] Filed by a Party Other than the Registrant
Check the appropriate box:
[ ] Preliminary Proxy Materials [ ]Confidential, For Commission Use Only
[x] Definitive Proxy Statement (as permitted by Rule 14a-6(e)(2)
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss.240.14a-12
TDS (TELEMEDICINE), INC.
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(Name of Registrant as Specified in its Charter)
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(Name of Person Filing Proxy Statement, if Other than the Registrant)
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:
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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 (set forth the
amount on which the filing fee is calculated and state how it
was determined):
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(4) Proposed maximum aggregate value of transaction:
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(5) Total fee paid:
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Fee previously paid with preliminary materials:
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[ ] 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:
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PROXY
TDS (TELEMEDICINE), INC.
SOLICITED BY THE BOARD OF DIRECTORS
For use at the May 22, 2007 Special Meeting
The undersigned hereby appoints Kevin Kreisler and James Green as proxies with
power of substitution, who shall be present at the meeting to vote all of the
shares of the undersigned as follows:
(1) PROPOSAL TO CHANGE THE STATE OF INCORPORATION OF THE CORPORATION FROM NEW
YORK TO DELAWARE BY MERGING INTO GS ENVIROSERVICES, INC., A WHOLLY-OWNED
SUBSIDIARY
/ / FOR / / AGAINST / / ABSTAIN
and in their discretion upon such other business as may be properly brought
before the Special Meeting of Shareholders of tds (Telemedicine), Inc., to be
held at the offices of tds (Telemedicine), One Penn Plaza, Suite 1612, New York,
NY 10119 on May 22, 2007 at 10:00 a.m. local time, and any adjournments thereof.
This proxy revokes all prior proxies given by the undersigned.
UNLESS OTHERWISE SPECIFIED, THIS PROXY WILL BE VOTED "FOR" THE PROPOSAL.
Date: ___________________
Signature: ___________________
Print Name: ___________________
Signature: ___________________
(if jointly held)
IMPORTANT: Please sign exactly as name appears on your stock certificate. Joint
owners should both sign. When signing as executor, trustee, guardian, attorney
or officer of a corporation, give title as such. If a partnership, please sign
in partnership name.
PLEASE COMPLETE, SIGN, DATE AND MAIL THIS PROXY IN THE ENCLOSED ENVELOPE.
TDS (TELEMEDICINE), INC.
One Penn Plaza, Suite 1612
New York, NY 10119
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON MAY 22, 2007
A Special Meeting of Shareholders of tds (Telemedicine), Inc., to be held at the
offices of tds (Telemedicine), One Penn Plaza, Suite 1612, New York, NY 10119 on
May 22, 2007 at 10:00 a.m., local time, for the following purposes:
(1) To vote upon a proposal to change the domicile of the corporation from
New York to Delaware and change the name of the corporation by merging
into a wholly-owned Delaware subsidiary named "GS EnviroServices
Corporation; and
(2) To transact such other business as may properly come before the
meeting.
Stockholders of record as of the close of business on May 2, 2007 will be
entitled to vote at the meeting.
Enclosed is a proxy statement and form of proxy. Shareholders who do not expect
to attend the Special Meeting are requested to sign and return the proxy in the
enclosed envelope.
By Order of the Board of Directors
Kevin Kreisler
Chairman of the Board
May 8, 2007
TDS (TELEMEDICINE), INC.
PROXY STATEMENT
This Proxy Statement is furnished to shareholders of tds (Telemedicine),
Inc. in connection with the solicitation by the Board of Directors of proxies to
be used at a Special Meeting of the Shareholders of tds (Telemedicine). This
Notice of Special Meeting and Proxy Statement, and the accompanying proxy card
have been mailed to the shareholders on or after May 8, 2007 for the purpose set
forth in the Notice of the Special Meeting.
If the enclosed form of proxy is executed and returned, it may nevertheless
be revoked at any time up until the time when it is voted by the Proxy
Committee. The proxy may be revoked by sending written revocation to the Proxy
Committee (c/o Kevin Kreisler, tds (Telemedicine), Inc., One Penn Plaza, Suite
1612, New York, NY 10119) or by making a proxy bearing a later date or by
appearing and voting at the Special Meeting. The proxy is in ballot form and
each shareholder may indicate approval or disapproval as to the proposal
identified in the proxy and accompanying Notice of Special Meeting and as set
forth and discussed in this Proxy Statement. The proposal will be presented by
the Board of Directors of tds (Telemedicine). Where a choice is specified with
respect to the proposal, the shares represented by the proxy will be voted in
accordance with the specification made. Where a choice is not so specified, the
shares represented by the proxy will be voted in favor of the proposal. The
Proxy Committee appointed by the Board of Directors consists of Kevin Kreisler
and James Green, who are the officers of tds (Telemedicine)
VOTING SECURITIES OUTSTANDING
Stockholders of record entitled to vote were determined as of the close of
business on May 2, 2007. At that date, there were outstanding and entitled to
vote 23,000,000 shares of common stock of tds (Telemedicine), constituting the
only class of stock outstanding and entitled to vote at the meeting. Each share
of common stock entitles the holder thereof to one vote.
The following table sets forth the beneficial ownership of outstanding
shares of voting stock of TDS (Telemedicine) as of May 2, 2007 by any person
who, to the knowledge of tds (Telemedicine), owns beneficially more than 5% of
the outstanding common stock, by each tds (Telemedicine) director, and by the
directors of tds (Telemedicine) as a group. None of the individuals identified
below owns any equity securities of tds (Telemedicine) other than the voting
stock listed below. All shares are owned of record and beneficially, except
where otherwise noted.
Name and address Amount of beneficial ownership
of beneficial owner(1) of common stock Percent of class
---------------------- ----------------------- ----------------
Greenshift Corporation ........................... 17,000,000(2) 73.9%
Kevin Kreisler ................................... 17,000,000(3) 73.9%
James F. Green ................................... 5,000,000 21.7%
10 North Glen Drive, Mashpee, MA 02649
All officers and directors ....................... 22,000,000 95.7%
as a group (2 persons)
<FN>
(1) Except where otherwise indicated, the shareholder's address is One
Penn Plaza, Suite 1612, New York, NY 10119.
(2) Includes 14,000,000 shares owned by GS CleanTech Corporation.
GreenShift Corporation owns 80% of the voting shares of GS CleanTech
Corporation.
(3) Represents shares owned beneficially by GreenShift Corporation. Mr.
Kreisler is the Chief Executive Officer of GreenShift Corporation and
owns, through controlled corporations, 80% of the equity in GreenShift
Corporation.
</FN>
PROPOSAL TO MERGE INTO GS ENVIROSERVICES, INC. IN ORDER TO CHANGE THE NAME OF
THE CORPORATION AND TO CHANGE THE STATE OF
INCORPORATION FROM NEW YORK TO DELAWARE
Introduction
For the reasons set forth below, the Board believes that the best interests
of tds (Telemedicine) and its shareholders will be served by changing its state
of incorporation from New York to Delaware (the "Reincorporation"). The Board
has approved the Reincorporation, which will be effected pursuant to the Merger
Agreement described below. Under the Merger Agreement, the Corporation (which
will be referred to hereinafter as the "New York Corporation") will be merged
with and into its subsidiary, GS EnviroServices, Inc., a Delaware corporation
(the "Delaware Corporation"). The Delaware Corporation was recently acquired,
and is the holding company for all of the business operations of tds
(Telemedicine). Upon the effectiveness of the Reincorporation, the New York
Corporation will cease to exist and Delaware Corporation will continue to
operate the New York Corporation's business under the name "GS EnviroServices,
Inc."
At the Special Meeting, the shareholders of the New York Corporation will
be asked to consider and vote upon the Reincorporation as outlined in the
Agreement and Plan of Merger by and between the New York Corporation and
Delaware Corporation attached as Appendix A (the "Merger Agreement"). For the
reasons set forth below, the Board believes that approval of the Reincorporation
is in the best interests of the New York Corporation and its shareholders.
Shareholder approval of the Reincorporation will constitute approval of the
Merger Agreement and all related transactions, which effectuate the change of
the legal domicile of the New York Corporation and the change of name of the
Corporation.
Reasons for the Name Change
The primary purpose of the name change is to better represent the company's
business. tds (Telemedicine) recently acquired GS EnviroServices, Inc., which is
its only operating subsidiary. GS EnviroServices is a full service environmental
remediation company, operating throughout the New England, Northeast and
Mid-Atlantic states. The Board of Directors has determined to change tds
(Telemedicine's) name to reflect this new direction for the business of the
corporation.
Reasons for the Reincorporation
The Board believes that the Reincorporation will provide flexibility for
both the management and the business of the Corporation. For many years,
Delaware has followed a policy of encouraging incorporation in that state and,
in furtherance of that policy, has been a leader in adopting, construing, and
implementing comprehensive, flexible corporate laws responsive to the legal and
business needs of corporations organized under its laws. Many corporations have
initially chosen Delaware, or have chosen to reincorporate in Delaware, in a
manner similar to that proposed by tds (Telemedicine). The Board believes that
the principal reasons for considering such a reincorporation are:
>> the development in Delaware over the last century of a
well-established body of case law construing the Delaware General
Corporation Law, which provides businesses with a greater measure of
predictability than exists in any other jurisdiction;
>> the certainty afforded by the well-established principles of corporate
governance under DGCL law are of benefit to tds (Telemedicine) and its
stockholders and should increase tds (Telemedicine's) ability to
attract and retain quality directors and officers;
>> DGCL itself, which is generally acknowledged to be the most advanced
and flexible corporate statute in the country;
>> the Delaware Court of Chancery, which brings to its handling of
complex corporate issues a level of experience, a speed of decision
and a degree of sophistication and understanding unmatched by any
other court in the country; and
>> the Delaware General Assembly, which each year considers and adopts
statutory amendments that have been proposed by the Corporation Law
Section of the Delaware bar to meet changing business needs.
The Merger
After the Reincorporation is effected by the Merger Agreement, the Delaware
Corporation will emerge as the surviving corporation. The terms and conditions
of the Reincorporation are set forth in the Merger Agreement attached to this
Proxy Statement, and the summary of the terms and conditions of the
Reincorporation set forth below is qualified by reference to the full text of
the Merger Agreement. Upon consummation of the Reincorporation, the Delaware
Corporation will continue to exist in its present form under the name "GS
EnviroServices, Inc.," and the New York Corporation will cease to exist. The
Reincorporation will change the legal domicile of the New York Corporation, but
will not result in a change in the principal offices, business, management,
capitalization, assets or liabilities of the New York Corporation. By operation
of law, the Delaware Corporation will succeed to all of the assets and assume
all of the liabilities of the New York Corporation. The officers and directors
of the New York Corporation are the officers and directors of the Delaware
Corporation, and will be the officers and directors of the surviving
corporation.
After the Reincorporation, the rights of shareholders and the Corporation's
corporate affairs will be governed by the Delaware General Corporation Law
("DGCL") and by the articles of incorporation and bylaws of the Delaware
Corporation, instead of the New York Business Corporation Law ("NYBCL") and the
articles of incorporation and bylaws of the New York Corporation. Certain
material differences are discussed below under "Comparison of Shareholders
Rights under Delaware and New York Corporate Law and Charter Documents." A copy
of the Articles of Incorporation of the Delaware Corporation (the "Delaware
Articles") is included as Appendix B to this Proxy Statement. A copy of the
articles of incorporation and bylaws of the New York Corporation and the bylaws
of the Delaware Corporation (the "Delaware Bylaws") are available for inspection
by shareholders of the New York Corporation at the offices of tds
(Telemedicine), One Penn Plaza, Suite 1612, New York, NY 10119.
Upon the effectiveness of the Reincorporation, each outstanding share of
the authorized common stock of the New York Corporation will be automatically
converted into one fully paid and nonassessable share of common stock of the
Delaware Corporation (the "Delaware Capital Stock"). Each stock certificate
representing issued and outstanding shares of the New York Corporation's common
stock will continue to represent the same number of shares of Delaware Capital
Stock, and such certificates will be deemed for all corporate purposes to
evidence ownership of shares of Delaware Capital Stock.
IT IS NOT NECESSARY TO SEND IN ANY OF YOUR STOCK CERTIFICATES REPRESENTING
SHARES OF THE NEW YORK CORPORATION'S COMMON STOCK, AS IT WILL NOT BE NECESSARY
FOR STOCKHOLDERS TO EXCHANGE THEIR EXISTING STOCK CERTIFICATES FOR DELAWARE
CORPORATION STOCK CERTIFICATES.
If, however, a shareholder wishes to acquire a certificate reciting the
name "GS EnviroServices, Inc." after the effective date of the Reincorporation,
he may do so by surrendering his certificate to the transfer agent for the
Delaware Corporation with a request for a replacement certificate accompanied by
the appropriate fee. The transfer agent for the New York Corporation and the
Delaware Corporation is:
American Registrar & Transfer Company
342 East 900 South
Salt Lake City, UT 84111
Telephone: (801) 363-9065 - Fax: (801) 363-9066
Consummation of the Reincorporation is subject to the approval of the New
York Corporation's shareholders. The Reincorporation will be approved if there
is a quorum at the Special Meeting and the shareholder votes cast at the meeting
in favor of the proposal exceed the votes cast opposing it. A quorum exists if
the holders of a majority of the shares of common stock outstanding are present
at the meeting in person or by proxy. GS CleanTech Corporation owns 60.8% of the
outstanding shares of common stock. Its shares will be voted in favor of the
proposal and its vote will be sufficient to approve the proposal on behalf of
the shareholders.
Federal Income Tax Consequences of the Reincorporation
The Reincorporation of the New York Corporation pursuant to the Merger
Agreement will be a tax-free reorganization under the Internal Revenue Code of
1986, as amended. Accordingly, a holder of the common stock (a "Holder") will
not recognize gain or loss in respect of Holder's common stock as a result of
the Reincorporation. The Holder's basis in a share of the Delaware Corporation
will be the same as Holder's basis in the corresponding share of the New York
Corporation held immediately prior to the Reincorporation. The Holder's holding
period in a share of the Delaware Corporation will include the period during
which Holder held the corresponding share of the New York Corporation, provided
the Holder held the corresponding share as a capital asset at the time of the
Reincorporation. In addition, neither the New York Corporation nor the Delaware
Corporation will recognize gain or loss as a result of the Reincorporation, and
the Delaware Corporation will generally succeed, without adjustment, to the tax
attributes of the New York Corporation.
The New York Corporation has not requested a ruling from the Internal
Revenue Service (the "IRS") or an opinion of counsel with respect to the federal
income tax consequences of the Reincorporation under the Internal Revenue Code.
A successful IRS challenge to the reorganization status of the Reincorporation
would result in a stockholder recognizing gain or loss with respect to each
share of the New York Corporation's common stock exchanged in the
Reincorporation equal to the difference between the stockholder's basis in such
shares and the fair market value, as of the time of the Reincorporation, of the
shares of the Delaware Corporation common stock received in exchange therefor.
In such event, a stockholder's aggregate basis in the shares of the Delaware
Corporation common stock received in the exchange would equal their fair market
value on such date, and the stockholder's holding period for such shares would
not include the period during which the stockholder held shares of the New York
Corporation's Common Stock.
State, local, or foreign income tax consequences to stockholders may vary
from the federal tax consequences described above. Stockholders should consult
their own tax advisors as to the effect of the Reincorporation under applicable
federal, state, local, or foreign income tax laws.
Securities Act Consequences
Pursuant to Rule 145(a)(2) under the Securities Act of 1933, as amended
(the "Securities Act"), a merger which has the sole purpose of changing an
issuer's domicile within the United States does not involve a sale of securities
for the purposes of the Securities Act. Accordingly, separate registration of
shares of common stock of Delaware Corporation will not be required.
Description and Comparison of Capital Stock and Voting Rights
The New York Corporation's authorized Capital Stock consists of one hundred
million (100,000,000) shares of Common Stock, $.001 par value. On May 8, 2007,
there were outstanding and entitled to vote 23,000,000 shares of common stock of
the New York Corporation, constituting the only class of stock outstanding and
entitled to vote at the meeting. Each share of common stock entitles the holder
thereof to one vote.
The Delaware Articles provide that the authorized capital stock of the
Delaware Corporation consists of one hundred million (100,000,000) shares of
Common Stock, each share having a par value of $0.001.
The Merger Agreement provides that each outstanding share of the New York
Corporation's common stock will be exchanged for one share of the Delaware
Corporation's common stock. Accordingly, the interests of the shareholders
relative to each other will not be affected by the Merger.
Comparison of Shareholder Rights Under Delaware and New York Corporate Law
And Charter Documents
Subject to shareholder approval prior to the effective time (the "Effective
Time") of the Reincorporation, the New York Corporation will change its domicile
to Delaware and shall thereafter be governed by the DGCL and by the Delaware
Articles and the Delaware Bylaws ("Delaware Charter Documents"). Upon the filing
with and acceptance by the Secretary of State of Delaware of the Articles of
Merger in Delaware, the New York Corporation will be merged into the Delaware
corporation, and the outstanding shares of the New York Corporation's Common
Stock will be deemed for all purposes to evidence ownership of, and to
represent, shares of Delaware Corporation Common Stock.
The Delaware Charter Documents effectively replace the New York
Corporation's current Certificate of Incorporation ("New York Articles") and the
New York Bylaws (together, the "New York Charter Documents") including providing
officers, directors and agents of the Delaware Corporation with certain
indemnification rights in addition to those currently provided for the under the
New York Charter Documents. In addition, when the Reincorporation is
consummated, holders of the New York Corporation's Common will become holders of
Delaware Common, which will result in their rights as shareholders being
governed by the laws of the State of Delaware.
It is not practical to describe all of the differences between the Delaware
Articles and the New York Articles and the Delaware Bylaws and the New York
Bylaws or all of the differences between the laws of the States of Delaware and
New York. The following is a summary of some of the significant rights of the
shareholders under New York and Delaware law and under the New York and Delaware
Charter Documents. This summary is qualified in its entirety by reference to the
full text of such documents and laws.
Amendment of Charter
Under New York Law, except for certain ministerial changes to the charter
which may be implemented by a corporation's board of directors without
shareholder action, and except as otherwise required under a charter, a charter
may be amended only if authorized by the board of directors and by the vote of
the holders of a majority of the shares of stock entitled to vote on such
amendment. Delaware Law allows a board of directors to recommend an amendment
for approval by shareholders, and a majority of the shares entitled to vote at a
shareholders' meeting are normally enough to approve that amendment. Both New
York Law and Delaware Law also require that if a particular class or series of
stock is adversely affected by certain types of amendments, then such class or
series also must authorize such amendment in order for it to become effective.
New York Law and Delaware Law both allow a corporation to require a higher
proportion of votes in order to authorize charter amendments, if so provided in
the charter.
Amendment of By-Laws
Under New York Law, a corporation's by-laws may be amended by the vote of
the holders of a majority of the votes cast with respect to such amendment
(rather than a majority of the shares outstanding) or, if permitted under the
corporation's charter or a by-law adopted by the shareholders, by the board of
directors. The New York By-laws provide that they may be amended by the Board of
Directors, provided the By-laws or any such amendment may be amended or repealed
by the vote of shareholders entitled to vote therein.
Under Delaware Law, the power to adopt, amend or repeal the by-laws is
vested in the stockholders entitled to vote or, if permitted under the
corporation's charter, by the board of directors. The Delaware Charter provides
the board of directors with the authority to alter, amend or repeal the Delaware
By-laws and also provides that any such action taken by the board can be
superseded by vote of the majority of the voting power of the then outstanding
voting stock of the Delaware Corporation entitled to vote on the matter.
Who May Call Special Meetings of Shareholders
Under both New York Law and Delaware Law, the board of directors or anyone
authorized in the charter or by-laws may call a special meeting of shareholders.
Currently, the New York By-laws provide that special meetings may be called by
the President, at his own initiative or when directed by the Board of Directors
or the holders of one-third of the voting shares. The Delaware By-laws provide
that special meetings may be called by the President or Secretary, when directed
by the Board of Directors or the holders of one-tenth of the voting shares.
Action by Written Consent Of Shareholders In Lieu Of A Shareholder Meeting
New York Law permits shareholder action in lieu of a meeting by unanimous
written consent of those shareholders who would have been entitled to vote on a
given action at a meeting. Delaware Law, on the other hand, generally permits
shareholders to take action by the written consent of holders collectively
owning at least the minimum number of votes (generally, a majority) that would
be required for action at a shareholders' meeting assuming the presence of all
shareholders entitled to vote thereon.
Right of Shareholders to Inspect Shareholder List
Under New York Law, a shareholder of record may inspect the list of record
shareholders upon giving at least five days' written demand to do so. The
inspection may be denied if the shareholder refuses to give an affidavit that
such inspection is not desired for a purpose which is in the interest of a
business other than the business of the corporation and that the shareholder has
not been involved in selling or offering to sell any list of shareholders of any
corporation within the preceding five years. Under Delaware Law, any stockholder
may upon making a demand under oath stating the purpose thereof, inspect the
stockholders' list for any purpose reasonably related to the person's interest
as a shareholder. In addition, for at least ten (10) days prior to each
stockholders meeting, a Delaware corporation must make available for examination
a list of stockholders entitled to vote at the meeting.
Vote Required For Certain Transactions
Under both the New York Law applicable to the New York Corporation and
Delaware Law, holders of a majority of the outstanding stock entitled to vote on
such transactions have the power to approve a merger, consolidation or sale of
all or substantially all the assets, unless the charter provides otherwise.
However, in the case of a merger under Delaware Law, stockholders of the
surviving corporation do not have to approve the merger at all, unless the
charter provides otherwise, if these three conditions are met:
|X| No amendment of the surviving corporation's charter is made by the
merger agreement; and
|X| Each share of the surviving corporation's stock outstanding or in the
treasury immediately prior to the effective date of the merger is to
be an identical outstanding or treasury share of the surviving
corporation after the effective date; and
|X| The merger results in no more than a 20% increase in its outstanding
common stock.
Proxies
Unless the proxy provides for a longer period, a proxy under New York Law
can be voted or acted upon for eleven (11) months, compared with three (3) years
under Delaware Law.
Number of Directors; Filling of Vacancies
Under both New York Law and Delaware Law, corporations must have at least
one director. Under New York Law, the exact number of directors is fixed either
in the charter, the by-laws, by the shareholders, or, if authorized in a
shareholder-adopted by-law, by the board of directors. Under Delaware Law, the
exact number of directors is fixed in the charter or in (or in the manner
provided by) the by-laws.
Classified Board of Directors
Both New York Law and Delaware Law permit "classified" boards of directors,
which means the directors have staggered terms that do not all expire at once.
New York Law and Delaware Law require that classified boards of directors be
authorized in the corporation's charter or in a shareholder-adopted by-law. New
York Law allows for as many as four different classes of directors, all as
nearly equal in number as possible, and Delaware Law allows for up to three
different classes of directors. Neither the New York Charter nor the Delaware
Charter authorizes a classified board of directors for the Company.
Removal of Directors by Shareholders
Under New York Law, directors may be removed by a majority of shareholders
for cause. Under Delaware Law, directors generally may be removed, with or
without cause, by a majority of the shareholders.
Limitation of Directors' Liability
Both states permit the limitation of a director's personal liability while
acting in his or her official capacity, but only if the limitation is contained
in the corporation's charter. Under New York Law, the charter may contain a
provision eliminating or limiting the personal liability of directors to the
corporation or its shareholders for any breach of duty. However, no provision
can eliminate or limit:
|X| the liability of any director if a judgment or other final
adjudication adverse to the director establishes that the director
acted in bad faith or engaged in intentional misconduct or a knowing
violation of law, personally gained a financial profit to which the
director was not legally entitled, or violated certain provisions of
New York Law; or
|X| the liability of any director for any act or omission prior to the
adoption of such provision in the charter.
The New York Charter contains a provision limiting the personal liability
of directors.
Delaware Law also requires a charter provision in order to limit or
eliminate a director's liability. However, Delaware Law precludes any limitation
or elimination of liability if the director breaches his or her duty of loyalty
to the corporation or its shareholders, or if his or her acts or omissions are
not in good faith or involve intentional misconduct or a knowing violation of
law or if he or she receives an improper personal benefit from the corporation,
or authorized a dividend or stock repurchase that was forbidden by Delaware Law.
The Delaware Charter limits director liability to the fullest extent permitted
by Delaware Law.
Due to the variations in New York Law and Delaware Law, there may be
circumstances where, despite the inclusion of charter provisions seeking the
maximum director exculpation permitted by applicable law, a director could
remain liable under New York Law for conduct that would not expose him or her to
liability under Delaware Law, or vice versa.
Loans To, And Guarantees of Obligations Of, Directors
Under New York Law, a corporation may not lend money to, or guarantee the
obligation of, a director unless the disinterested shareholders of such
corporation approve the transaction. For purposes of the shareholder approval,
the holders of a majority of the votes of the shares entitled to vote constitute
a quorum, but shares held by directors who are benefited by the loan or
guarantee are not included in the quorum. Moreover, under New York law, a
guarantee may not be given by a New York corporation, if not in furtherance of
its corporate purposes, unless it is authorized by two-thirds of the votes of
all outstanding shares entitled to vote.
Under Delaware Law, a board of directors may authorize loans by the
corporation to, and guarantees by the corporation of any obligations of, any
director of the corporation who is also an officer or other employee of the
corporation whenever, in the judgment of the board of directors, such loan or
guarantee may reasonably be expected to benefit the corporation.
Notwithstanding Delaware Law, the Company has not made and does not intend
to make any personal loans to, or guarantees for the benefit of, any of its
directors or officers in violation of Section 13(k) of the Securities Exchange
Act of 1934.
Transactions with Interested Directors
Under New York Law, a corporation may establish the validity of
transactions between it and its interested directors through one of several
methods, including the approval of a majority of the disinterested directors who
are not involved in the transaction. Delaware Law provides that no transaction
between a corporation and an interested director is void or voidable solely
because that director is present at or participates in the meeting where such
transaction is considered or because that director's votes are counted if the
material facts of that director's interest are known to the board of directors
and the board of directors in good faith authorizes the transaction by a vote of
a majority of the disinterested directors, or if that director's interest is
disclosed to the stockholders and the stockholders in good faith approve the
transaction.
Dividends; Redemption of Stock
Subject to its charter provisions, under both New York Law and Delaware Law
a corporation may generally pay dividends, redeem shares of its stock or make
other distributions to shareholders if the corporation is solvent and would not
become insolvent because of the dividend, redemption or distribution. The assets
applied to such a distribution may not be greater than the corporation's
"surplus."
Under New York Law, dividends may be paid or distributions made out of
surplus only, so that the net assets of the corporation remaining after such
payment or distribution shall be at least equal to the amount of its stated
capital. New York Law defines surplus as the excess of net assets over stated
capital and permits the board of directors to adjust stated capital. Delaware
Law defines surplus as the excess of net assets over stated capital and lets the
board of directors adjust capital. If there is no surplus, Delaware Law allows a
corporation to apply net profits from the current or preceding fiscal year, or
both, with certain exceptions. In general, with certain restrictions, New York
Law permits a corporation to provide in its charter for redemption (at the
option of the corporation of the shareholder or in certain other circumstances)
of one or more classes or series of its shares. One such restriction provides
that common stock may be issued or redeemed, with certain exceptions, only when
the corporation has an outstanding class of common shares that is not subject to
redemption. Delaware Law permits redemptions only when the corporation has
outstanding one or more shares of one or more classes or series of stock, which
share or shares have full voting powers.
Appraisal Rights
The NYBCL generally provides that a dissenting shareholder has the right to
receive the fair value of his shares if he complies with certain procedures and
objects to (i) certain mergers and consolidations, (ii) certain dispositions of
assets requiring shareholder approval, (iii) certain share exchanges, or (iv)
certain amendments to the charter which adversely affect the rights of such
shareholder. The DGCL provides such appraisal rights only in the case of
shareholders objecting to certain mergers or consolidations (which class of
mergers or consolidations is somewhat narrower than the class giving rise to
appraisal rights under the NYBCL), unless additional appraisal rights are
provided in the charter. The Delaware Charter does not provide any such
additional appraisal rights.
The NYBCL provides that dissenting shareholders have no appraisal rights if
their shares are listed on a national securities exchange or designated as a
market system security on an interdealer quotation system by the National
Association of Securities Dealers, Inc. Appraisal rights may also be unavailable
under the NYBCL in a merger between a parent corporation and its subsidiary
where only one of them is a New York corporation, or in a merger between a
parent and subsidiary where both are New York corporations, and the parent owns
at least 90% of the subsidiary. Also, appraisal rights are available to
shareholders who are not allowed to vote on a merger or consolidation and whose
shares will be canceled or exchanged for cash or something else of value other
than shares of the surviving corporation or another corporation. When appraisal
rights are available, the shareholder may have to request the appraisal and
follow other required procedures.
Similarly, under the DGCL, appraisal rights are not available to a
shareholder if the corporation's shares are listed on a national securities
exchange or held by more than 2,000 shareholders of record, or if the
corporation will be the surviving corporation in a merger which does not require
the approval of the surviving corporation's shareholders. But, regardless of
listing on an exchange, a dissenting shareholder in a merger or consolidation
has appraisal rights under the DGCL if the transaction requires him or her to
exchange shares for anything of value other than one or more of (a) shares of
stock of the surviving corporation or of a new corporation which results from
the merger or consolidation, (b) shares of another corporation which will be
listed on a national securities exchange or held by more than 2,000 shareholders
of record after the merger or consolidation occurs, or (c) cash instead of
fractional shares of the surviving corporation or another corporation.
Business Combinations with Interested Stockholders
Provisions in both New York Law and Delaware Law may help to prevent or
delay changes of corporate control. In particular, both New York Law and
Delaware Law restrict or prohibit an "interested stockholder" from entering into
certain types of "business combinations" unless the board of directors approves
the transaction in advance. The two laws define these two terms differently.
Under New York Law, an interested shareholder is generally prohibited from
entering into certain types of business combinations with a New York corporation
for a period of five years after becoming an interested shareholder, unless
before such date the board of directors approves either the business combination
or the acquisition of stock by the interested shareholder before the interested
shareholder acquires his or her shares. An "interested shareholder" under New
York Law is generally a beneficial owner of at least 20% of the corporation's
outstanding voting stock. "Business combinations" under New York Law include
mergers and consolidations between corporations or with an interested
shareholder or its affiliate or associate; sales, leases, mortgages, pledges,
transfers or other dispositions to an interested shareholder of assets with an
aggregate market value which either equals 10% or more of the corporation's
consolidated assets or outstanding stock, or represents 10% or more of the
consolidated earning power or net income of the corporation; issues and
transfers to an interested shareholder of stock with an aggregate market value
of at least 5% of the aggregate market value of the outstanding stock of the
corporation; liquidation or dissolution of the corporation proposed by or in
connection with an interested shareholder; reclassification or recapitalization
of stock that would increase the proportionate stock ownership of an interested
shareholder; and the receipt by an interested shareholder of any benefit from
loans, guarantees, advances, pledges or other financial assistance or tax
benefits provided by the corporation.
After a five-year period, New York Law allows such business combination if
it is approved by a majority of the voting stock not owned by the interested
shareholder or by an affiliate or associate of the interested shareholder.
Business combinations are also permitted when certain statutory "fair price"
requirements are met and in certain other circumstances.
One section of Delaware Law, Section 203, generally prohibits an interested
stockholder from entering into certain types of business combinations with a
Delaware corporation for three years after becoming an interested stockholder.
An "interested stockholder" under Delaware Law is any person other than the
corporation and its majority-owned subsidiaries who owns at least 15% of the
outstanding voting stock, or who is an affiliate or associate of a corporation
and who owned at least 15% of the outstanding voting stock within the preceding
three years. Briefly described, the prohibited combinations include:
(a) Mergers or consolidations.
(b) Sales, leases, exchanges or other dispositions of 10% or more of (1)
the aggregate market value of all assets of the corporation or (2) the
aggregate market value of all the outstanding stock of the
corporation.
(c) Issuance or transfers by the corporation or a majority-owned
subsidiary of its stock except in limited instances.
(d) Receipt by the interested stockholder of the benefit of loans,
advances, guarantees, pledges or other financial benefits provided by
the corporation.
(e) Any other transaction, with certain exceptions, that increases the
proportionate share of the stock owned by the interested stockholder.
A Delaware corporation may choose not to have Section 203 of the Delaware
Law apply. The Delaware Corporation has chosen, however, to accept the
protections of Section 203, and therefore the Delaware Charter will not waive
those protections. Nevertheless, Section 203 does not apply in the following
cases:
(a) If, before the stockholder became an interested stockholder, the board
of directors approved the business combination or the transaction that
resulted in the stockholder becoming an interested stockholder.
(b) If, after the transaction that resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85%
of the voting stock of the corporation outstanding at the time the
transaction commenced, subject to technical calculation rules.
(c) If, on or after the time the interested stockholder became an
interested stockholder, the board of directors approved the business
combination, and at least two-thirds of the outstanding voting stock
that is not owned by the interested stockholder also ratified the
business combination at a stockholders' meeting.
Amendment to the Merger Agreement; Termination
The Merger Agreement may be terminated and the Reincorporation abandoned,
notwithstanding shareholder approval, by the Board of Directors of the New York
Corporation at any time before consummation of the Reincorporation if the Board
of Directors of the New York Corporation determines that in its judgment the
Reincorporation does not appear to be in the best interests of the New York
Corporation or its shareholders.
OTHER MATTERS
Dissenter's Rights
Under New York law, shareholders are not entitled to dissenter's rights
with respect to the transactions described in this Proxy Statement.
Transaction of Other Business
As of the date of this Proxy Statement, Management has no knowledge of any
business which will be presented for consideration at the meeting other than
that described above. Should any other matter come before the meeting, it is the
intention of the Proxy Committee to vote such proxy in accordance with their
best judgment.
Shareholder Proposals
In order for shareholder proposals intended to be presented at the next
meeting of Shareholders to be eligible for inclusion in the corporation's proxy
statement and the form of proxy for such meeting, they must be received by the
Corporation at its principal executive offices a reasonable time before the
Corporation prints its proxy materials for the meeting. In addition, if the
Corporation does not receive notice of a shareholder proposal within a
reasonable time before the Corporation mails its proxy materials to the
shareholders, then the proxies solicited by the Board of Directors may confer on
the proxy committee discretionary authority to vote on the shareholder proposal.
The Board of Directors has not determined when there will be another meeting of
the shareholders.
Solicitation of Proxies
The entire expense of preparing, assembling and mailing this proxy
statement, the form of proxy and other material used in the solicitation of
proxies will be paid by tds (Telemedicine). In addition to the solicitation of
proxies by mail, arrangements may be made with brokerage houses and other
custodians, nominees and fiduciaries to send proxy material to their principals,
and tds (Telemedicine) will reimburse them for expenses in so doing. To the
extent necessary in order to insure that sufficient votes are cast, officers and
agents of the New York Corporation, who will not be additionally compensated
therefor, may request the return of proxies personally. The extent to which this
will be necessary depends on how promptly proxies are received, and shareholders
are urged to send their proxies without delay.
By Order of the Board of Directors
Kevin Kreisler
Chairman of the Board
Dated: May 8, 2007
APPENDIX A
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made as of this 24th
day of April, 2007, by and between tds (Telemedicine), Inc., a New York
corporation (the "New York Corporation"), and GS EnviroServices, Inc., a
Delaware corporation (the "Delaware Corporation").
W I T N E S S E T H:
WHEREAS, the New York Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York; and
WHEREAS, the Delaware Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware; and
WHEREAS, the respective Boards of Directors of the New York Corporation and
the Delaware Corporation have determined that, for purposes of effecting the
reincorporation of the New York Corporation in the State of Delaware, it is
advisable, to the advantage of and in the best interests of the Delaware
Corporation and its stockholder and the New York Corporation and its
stockholders that the New York Corporation merge with and into the Delaware
Corporation upon the terms and subject to the conditions herein provided; and
WHEREAS, the parties intend, by executing this Agreement, to adopt a plan
of reorganization within the meaning of Section 368 of the Internal Revenue Code
of 1986, as amended (the "Code"), and to cause the merger described herein to
qualify as a reorganization under the provisions of Section 368 of the Code; and
WHEREAS, the respective Boards of Directors of the New York Corporation and
the Delaware Corporation and the stockholder of the Delaware Corporation have
unanimously adopted and approved this Agreement, and the Board of Directors of
the New York Corporation has directed that this Agreement be submitted to the
stockholders of the New York Corporation for their consideration.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and intending to be legally bound, the New York Corporation
and the Delaware Corporation hereby agree as follows:
1. Merger. Subject to the approval of the stockholders of the New York
Corporation in accordance with the New York Business Corporation Act (the
"New York Act"), at such time hereafter as the parties hereto shall
mutually agree, the New York Corporation shall be merged with and into the
Delaware Corporation (the "Merger"), and the Delaware Corporation shall be
the surviving company (hereinafter sometimes referred to as the "Surviving
Corporation"). The Merger shall be effective upon (a) the filing of a
Certificate of Merger (the "Certificate of Merger") with the office of the
New York Secretary of State in accordance with the provisions of Section
904 of the New York Act; and (b) the filing of a duly certified Certificate
of Ownership and Merger (the "Certificate of Ownership and Merger") with
the Secretary of State of the State of Delaware in accordance with the
applicable provisions of Section 253 of the Delaware General Corporation
Law ( the "DGCL"); the date and time of the later of such filings being
hereinafter referred to as the "Effective Date." Following the due approval
of the Merger by the stockholders of the New York Corporation, subject to
the provisions of this Agreement, the Certificate of Merger shall be duly
executed by the Delaware Corporation and the New York Corporation and
thereafter delivered to the office of the Secretary of State of the State
of New York, and the Certificate of Ownership and Merger shall be duly
executed by the Delaware Corporation and the New York Corporation and
thereafter delivered to the office of the Secretary of State of Delaware.
2. Governing Documents.
a. The Certificate of Incorporation of the Delaware Corporation shall be
the Certificate of Incorporation of the Surviving Corporation.
b. The By-Laws of the Delaware Corporation shall be the By-Laws of the
Surviving Corporation.
3. Officers and Directors. The directors of the New York Corporation
immediately prior to the Effective Date shall be the directors of the
Surviving Corporation and the officers of the New York Corporation
immediately prior to the Effective Date shall be the officers of the
Surviving Corporation. Such directors and officers will hold office from
the Effective Date until their respective successors are duly elected or
appointed and qualified in the manner provided in the Certificate of
Incorporation and By-Laws of the Surviving Corporation, as the same may be
lawfully amended, or as otherwise provided by law.
4. Succession; Name of Surviving Corporation. As of the Effective Date, the
separate existence of the New York Corporation shall cease and the New York
Corporation shall be merged with and into the Delaware Corporation, and the
name of the Surviving Corporation shall be GS EnviroServices, Inc.
5. Further Assistance. From and after the Effective Date, as and when required
by the Delaware Corporation or by its successor and assigns, there shall be
executed and delivered on behalf of the New York Corporation such deeds and
other instruments, and there shall be taken or caused to be taken by it
such further and other action, as shall be appropriate or necessary in
order to vest, perfect or confirm, of record or otherwise, in the Delaware
Corporation the title to and possession of all the property, interests,
assets, rights, privileges, immunities, power, franchises and authority of
the New York Corporation, and otherwise to carry out the purposes of this
Agreement, and the officers and directors of the Delaware Corporation are
fully authorized in the name and on behalf of the New York Corporation or
otherwise to take any and all such action and to execute and deliver any
and all such deeds and other instruments.
6. Capital Stock. At the Effective Date, by virtue of the Merger and without
any action on the part of the holder thereof, each share of common stock of
the New York Corporation outstanding immediately prior to the Effective
Time shall be changed and converted into one fully paid and non-assessable
share of common stock of the Delaware Corporation.
7. Outstanding Stock of the Delaware Corporation. At the Effective Date, the
1,000 shares of the Delaware Common Stock presently issued and outstanding
in the name of the New York Corporation shall be canceled and retired and
resume the status of authorized and unissued shares of Delaware Common
Stock, and no shares of Delaware Common Stock or other securities of
Delaware Common Stock shall be issued in respect thereof.
8. Stock Certificates. From and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of
capital stock of the New York Corporation shall be deemed for all purposes
to evidence ownership and to represent the shares of capital stock of the
Delaware Corporation into which such shares of the New York Corporation
represented by such certificates have been converted as herein provided.
The registered owner on the books and records of the Delaware Corporation
or its transfer agent of any such outstanding stock certificate shall,
until such certificate shall have been surrendered for transfer or
otherwise accounted for to the Delaware Corporation or its transfer agent,
have and be entitled to exercise any voting and other rights with respect
to and to receive any dividend and other distributions upon the shares of
capital stock of the Delaware Corporation evidenced by such outstanding
certificates as above provided.
9. Validity of Delaware Common Stock. All shares of Delaware Common Stock into
which New York Common Stock is to be converted pursuant to the Merger shall
not be subject to any statutory or contractual preemptive rights, shall,
when issued, be validly issued, fully paid and nonassessable and shall be
issued in full satisfaction of all rights pertaining to such New York
Common Stock.
10. Rights of Former Holders. From and after the Effective Date, no holder of
certificates which evidenced New York Common Stock immediately prior to the
Effective Date shall have any rights with respect to the shares formerly
evidenced by those certificates, other than the right to receive the shares
of Delaware Common Stock into which such New York Common Stock shall have
been converted pursuant to the Merger.
11. Abandonment and Termination. At any time before the Effective Date, this
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either the New York Corporation or the Delaware Corporation or
both, notwithstanding approval of this Agreement by the sole stockholder of
the Delaware Corporation and the stockholders of the New York Corporation.
12. Third Parties. Except as provided in this Agreement, nothing herein
expressed or implied is intended or shall be construed to confer upon or
give any person, firm or corporation, other than the parties hereto or
their respective successors and assigns, any rights or remedies under or by
reason of this Agreement.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be executed as of this day and year first
above written.
tds (Telemedicine), Inc. GS EnviroServices, Inc.
By: /s/ James Green By: /s/ James Green
---------------- ----------------
Name: James Green Name: James Green
Title: Chief Executive Officer Title: Chief Executive Officer
APPENDIX B
CERTIFICATE OF INCORPORATION
OF
GS ENVIROSERVICES, INC.
I, the undersigned, for purposes of incorporating and organizing a
corporation under the General Corporation Law of the State of Delaware, do
execute this Certificate of Incorporation and do hereby certify as follows:
FIRST. The name of the corporation is GS EnviroServices, Inc.
SECOND. The address of the corporation's registered office in the State of
Delaware is 2711 Centerville Road, Suite 400 in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is Corporation
Service Company.
THIRD. The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH. The total number of shares of stock which the Corporation shall
have the authority to issue is eleven thousand (11,000) shares, consisting of
ten thousand (10,000) shares of Common Stock with $.001 par value and one
thousand (1,000) shares of Preferred Stock with $.001 par value. The Board of
Directors is authorized, subject to limitations prescribed by law and the
provisions hereof, to provide for the issuance from time to time of Preferred
Stock in one or more series, and by filing a certificate pursuant to ss.151 of
the Delaware General Corporation Law, as amended and supplemented from time to
time, to establish the number of shares to be included in each such series, and
fix the voting powers, designations, preferences, rights, qualifications,
limitations and restrictions of the shares of each such series not fixed hereby.
The aforesaid authorization of the Board shall include, but not be limited to,
the power to provide for the issuance of shares of any series of Preferred Stock
convertible, at the option of the holder or of the Corporation or both, into
shares of any other class or classes or of any series of the same or any other
class or classes.
FIFTH. The incorporator of the Corporation is Robert Brantl, Esq., whose
mailing address is 52 Mulligan Lane, Irvington, New York 10533.
SIXTH. In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors of the Corporation is
expressly authorized to make, alter and repeal the by-laws of the Corporation,
subject to the power of the stockholders of the Corporation to alter or repeal
any by-law whether adopted by them or otherwise.
SEVENTH. A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or limit
thereof is not permitted under the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended. Any amendment,
modification or repeal of the foregoing sentence shall not adversely affect any
right or protection of a director of the Corporation hereunder in respect of any
act or omission occurring prior to the time of such amendment, modification or
repeal.
The undersigned incorporator hereby acknowledges that the foregoing
certificate of incorporation is his act and deed on this 1st day of March, 2007.
/s/ Robert Brantl
---------------------------
Robert Brantl, Incorporator
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
GS ENVIROSERVICES, INC.
GS ENVIROSERVICES, INC., a corporation organized and existing under the
General Corporation Law of the State of Delaware, does hereby certify:
FIRST: That the Board of Directors of the said corporation, by the
unanimous consent of its members, filed with the minutes of the Board, adopted
resolutions proposing and declaring advisable the following amendment to the
Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the Article thereof numbered "FOURTH" so that, as amended,
said Article be and read as follows:
"FOURTH. The total number of shares of stock which the Corporation shall
have the authority to issue is one hundred million shares of Common Stock
with $.001 par value.
SECOND: That the said amendment has been adopted by the written consent of
the holders of a majority of the issued and outstanding shares of each class of
stock of the Corporation.
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of Section 242 of the General Corporation Law of Delaware.
IN WITNESS WHEREOF, said GS ENVIROSERVICES, INC.
has caused this certificate to be signed by its President this 24th day of May,
2007.
GS ENVIROSERVICES, INC.
By: /s/ James Green
-----------------------------
James Green, President