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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): November 11, 2024
MDWerks,
Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
|
000-56299 |
|
33-1095411 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
411
Walnut Street, Suite 20125
Green
Cove Springs, FL |
|
32043 |
(Address
of principal executive offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (252) 501-0019
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
N/A |
|
N/A |
|
N/A |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers.
Expansion
of the Board of Directors
On
November 11, 2024, MDWerks, Inc., a Delaware corporation (the “Company”), by written consent of the Board of Directors
of the Company expanded their board of directors from three (3) directors to four (4) directors.
Appointment
of Timothy Brocopp as an Independent Director of the Board of Directors
Pursuant
to the new vacancy created by the expansion of the Board of Directors from three (3) directors to four (4) directors, on November 11,
2024, the Board of Directors appointed Timothy Brocopp (“Mr. Brocopp”) to serve as an independent director of the Company,
as defined under the applicable SEC rules and Nasdaq listing standards.
There
is no arrangement or understanding between Mr. Brocopp and any other person pursuant to which Mr. Brocopp was appointed as a director.
There are no transactions in which Mr. Brocopp has an interest requiring disclosure under Item 404(a) of Regulation S-K.
Independent
Director Agreement of Timothy Brocopp
On
November 18, 2024, Mr. Brocopp and the Company entered into an Independent Director Agreement, with the following summarized terms:
Mr.
Brocopp shall serve as an independent director of the Company and be available to perform the duties consistent with such position pursuant
to the Certificate of Incorporation and Bylaws of the Company. Mr. Brocopp’s employment commenced on Monday, November 16, 2024,
and continues for a term of three (3) years.
Compensation
that Mr. Brocopp will receive during his term includes the sum of $5,000, each calendar quarter, payable in the third month of each calendar
quarter, and with such amount for any partial calendar quarter being appropriately prorated. Upon employment, the Company shall issue
to Mr. Brocopp 100,000 shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”), subject to
the terms and conditions of the Company’s applicable equity incentive plan and any related grant documentation, with $10,000 shares
divided by a VWAP schedule.
The
Company shall reimburse Mr. Brocopp for all reasonable out-of-pocket expenses incurred in the ordinary course of the Director’s
business, with out-of-pocket expenses of the Director in excess of $500.00 subject to preapproval in advance by the Company.
Mr.
Brocopp is bound by certain confidentiality covenants with the Company. And has made certain representations and warranties customary
to directors. According to the terms of the Independent Director Agreement, Mr. Brocopp shall relinquish all ownership to the Company,
of work product related to his position with the Company, including any intellectual and proprietary rights of work product resulting
from his position as director.
Any
controversies between Mr. Brocopp and the Company shall first be arbitrated in Henderson County, North Carolina, and if required, then
be litigated in Henderson County, North Carolina, applying the laws of the State of Delaware.
The
foregoing description of Mr. Brocopp’s Independent Director Agreement is a summary only and is qualified in its entirety by reference
to the full text of such document, filed herewith as Exhibit 10.1, and is incorporated herein by reference.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
|
MDwerks,
Inc. |
|
|
|
Date:
November 19, 2024 |
By: |
/s/
Steven C. Laker |
|
Name: |
Steven
C. Laker |
|
Title: |
Chief
Executive Officer |
Exhibit 10.1
MDWerks,
Inc.
Independent
Director Agreement
(Director
Name: [XXX])
Dated
as of [_________], 2024
This
Independent Director Agreement (this “Agreement”), dated and made effective as of the date first set forth above (the “Effective
Date”), is entered into by and between MDWerks, Inc., a Delaware Corporation (“Company”), and [XXX] (“Director”).
The Company and Director may be referred to herein individually as a “Party” or collectively as the “Parties”.
WHEREAS,
the Company has appointed the Director to the Board of Directors of Company (the “Board”) on the Effective Date and now desires
to enter into an agreement with the Director with respect to Director’s service as a director of Company; and
WHEREAS,
the Director is willing to serve as a director of Company upon the terms and conditions set forth herein and in accordance with the provisions
of this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged. the Parties hereby agree as follows:
1. | Defined
Terms. Wherever the following terms are used in this Agreement, they shall have the meanings
ascribed to them below, unless the context clearly indicates otherwise. Other capitalized
terms in this Agreement are defined in the text hereof. |
| (a) | “Affiliate”
means, with reference to Company, any other Person controlling, controlled by or under the
common control of Company. For purposes hereof, the term “control” (or any equivalent
term) means having ownership of more than fifty percent (50%) of the voting securities of
a Person or the power, whether through voting power or otherwise, to control the management
policies of such Person. |
| | |
| (b) | “Person”
means any natural person, corporation, company, partnership (including both general and limited
partnerships), limited liability company, sole proprietorship, association, joint stock company,
firm, trust, trustee, joint venture, unincorporated organization, executor, administrator,
legal representative or other legal entity, including any governmental authority, entity
or instrumentality. |
| (a) | Director
agrees to serve as an independent Director of the Company and to be available to perform
the duties consistent with such position pursuant to the Certificate of Incorporation and
Bylaws of the Company, and any additional codes, guidelines or policies of the Company that
may be effective now or in the future (collectively, the “Governance Documents”)
and the laws of the state of Delaware. The Company acknowledges that Director currently holds
other positions (“Other Employment”) and agrees that Director may maintain such
positions, provided that such Other Employment shall not materially interfere with Director’s
obligations under this Agreement. Director confirms that Director expects Director will be
able to devote sufficient time and attention to the Company as is necessary to fulfill Director’s
responsibilities as a Director of the Company and that Director expects the Other Employment
will not in any way impact Director’s independence, and if Director determines that
is no longer the case, Director will promptly notify the Company. Such time and attention
shall include, without limitation, participation in telephonic and/or in-person meetings
of the Board; provided, that Director is given reasonable advance notice of such meetings
and they are scheduled at times when Director is available. Director also represents that
the Other Employment shall not materially and unreasonably interfere with Director’s
obligations under this Agreement. Subject to the forgoing, Director will use Director’s
best efforts to promote the interests of Company and its shareholders. |
| | |
| (b) | Without
limiting the generality of the foregoing, Director confirms that Director is independent
(as such term has been construed under Delaware law with respect to directors of Delaware
corporations and the OTC Markets, the NASDAQ Stock Exchange and the New York Stock Exchange).
Director also confirms that, to Director’s knowledge, (a) Director does not possess
material business, close personal relationships or other affiliations, or any history of
any such material business, close personal relationships or other affiliations, with the
Company’s significant equity or debt holders or any of their respective corporate affiliates
that would cause Director to be unable to (i) exercise independent judgment based on the
best interests of the Company or (ii) make decisions and carry out Director’s responsibilities
as a Director of the Company, in each case in accordance with the terms of the Governance
Documents and applicable law, and (b) Director has no existing relationship or affiliation
of any kind with any entity Director knows to be a competitor of the Company. |
| | |
| (c) | In
addition to Director’s service on the Board, Director agrees that, if so selected by
the Chairman of the Board, Director shall serve on one or more committees of the Board, including
but not limited to the Compensation Committee, Audit Committee, or Nominating Committee,
as determined by the Chairman of the Board. |
| | |
| (d) | By
execution of this Agreement, Director accepts Director’s appointment or election as
an independent Director of the Company, and agrees to serve in such capacity, subject to
the terms of this Agreement, until Director’s successor is duly elected and qualified
or until Director’s earlier death, resignation or removal. The Parties acknowledge
and agree that Director is being engaged to serve as an independent Director of the Company
only and is not being engaged to serve, and shall not serve, the Company in any other capacity. |
| | |
| (e) | Director’s
status during the Term (as defined below) shall be that of an independent contractor and
not, for any purpose, that of an employee or agent with authority to bind the Company in
any respect. All payments and other consideration made or provided to the Director hereunder
shall be made or provided without withholding or deduction of any kind, and the Director
shall assume sole responsibility for discharging all tax or other obligations associated
therewith. |
3. | Term.
The term of this Agreement shall commence on the Effective Date and continue for a period
of three (3) years, unless earlier terminated upon the earliest of (a) such time as Director
resigns or is removed in accordance with the Governance Documents, and (b) the death of the
Director (the “Term”). |
4. | Compensation.
For all services to be rendered by Director hereunder, and so long as Director remains a
Director of the Company, the Company shall, during the Term, pay to Director the compensation
and reimbursement of expenses as set forth in this Section 3. |
| (a) | Director
shall be paid the sum of $5,000, each calendar quarter, payable in the third month of each
calendar quarter, and with such amount for any partial calendar quarter being appropriately
prorated. Notwithstanding the foregoing, the Company reserves the right to defer payment
of such compensation, in whole or in part, based on the Company’s financial needs or
other business considerations. Any deferred compensation shall accrue without interest and
shall be paid to Director as soon as reasonably practicable, subject to applicable law and
the Company’s financial position. |
| | |
| (b) | In
addition to the cash fee set forth in Section 4(a), upon execution of this Agreement, the
Company shall issue to Director 100,000 shares of common stock, par value $0.001 per share,
of the Company (the “Common Stock”), subject to the terms and conditions of the
Company’s applicable equity incentive plan and any related grant documentation. |
| | |
| (c) | In
addition to the cash fee as set forth in Section 4(a), at the end of each quarter during
the Term, the Company shall issue to Director a number of shares of common stock, par value
$0.001 per share, of the Company (the “Common Stock”) equal to (i) $10,000, divided
by (ii) the VWAP (as defined below) of the Common Stock as of such quarter end date (the
“Shares”). |
| | |
| (d) | For
purposes herein, “VWAP” means the first of the following which shall apply: |
| (i) | If
the Common Stock is then listed for trading on the OTC Markets or a United States or Canadian
national securities exchange (as applicable, the “Trading Market”), then the
volume-weighted average (rounded to the nearest $0.0001) closing price of the Common Stock
on such Trading Market during the 20 Trading Day (as defined below) period immediately prior
to the applicable measurement date, as reported by such Trading Market or other reputable
source; |
| | |
| (ii) | if
the Common Stock is not then listed or quoted for trading on a Trading Market, and if prices
for the Common Stock are then reported in the “Pink Sheets” published by OTC
Markets Group, Inc. (or a similar organization or agency succeeding to its functions of reporting
prices), the most recent bid price per share of the Common Stock so reported; and |
| (iii) | if
the VWAP cannot be calculated for such security on such date on bases as set forth in Section
4(c)(i) or Section 4(c)(ii), the VWAP shall be the fair market value of such security as
mutually determined in good faith by the Board, without the involvement of the Director,
after taking into consideration such factors as the Board may deem appropriate. |
| (e) | All
such determinations of the VWAP as set forth in Section 4(c)(i) or Section 4(c)(ii) shall
be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization
or other similar transaction during such period. |
| (f) | For
purposes herein, “Trading Day” means any day on which the Common Stock (or any
replacement security pursuant to Section 4(f)) is traded on the Trading Market or is otherwise
reported on “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC)
or a similar organization or agency succeeding to its functions of reporting prices. |
| (g) | If,
at any time prior to the determination of the VWAP, there shall be any merger, consolidation,
or an exchange of shares, recapitalization or reorganization pursuant to a merger or consolidation,
or other similar event, as a result of which shares of Common Stock shall be changed into
the same or a different number of shares of another class or classes of stock or securities
of the Company or another entity, or in case of any sale or conveyance of all or substantially
all of the assets or more than 50% of the total outstanding shares of the Company other than
in connection with a plan of complete liquidation of the Company, then the Director shall
thereafter have the right to receive, if otherwise applicable hereunder, upon the basis and
upon the terms and conditions specified herein and in lieu of the shares of Common Stock,
such replacement stock, securities or assets, with equitable adjustments being made thereto
with respect to the VWAP, as determined by the Company and the Director, and in the event
that the shares of Common Stock shall be changed into the same or a different number of shares
of another class or classes of stock or securities of the Company or another entity any references
herein to the Common Stock, whether standing alone or as a part of another defined term,
shall be deemed a reference to such replacement stock or securities. |
| (h) | During
the Term, Company shall reimburse Director for all reasonable out-of-pocket expenses incurred
by Director in attending any in-person meetings, provided that Director complies with the
generally applicable policies, practices and procedures of the Company for submission of
expense reports, receipts or similar documentation of such expenses. Any reimbursements for
allocated expenses (as compared to out-of-pocket expenses of the Director in excess of $500.00)
must be approved in advance by the Company. |
| (a) | Definition.
For purposes of this Agreement, “Confidential Information” shall mean all
Company Work Product (as hereinafter defined) and all non-public written, electronic, and
oral information or materials of Company communicated to or otherwise obtained by Director
in connection with this Agreement, which is related to the products, business and activities
of Company, its Affiliates, and subsidiaries, and their respective customers, clients, suppliers,
and other entities with which such party does business, including: (i) all costing, pricing,
technology, software, documentation, research, techniques, procedures, processes, discoveries,
inventions, methodologies, data, tools, templates, know how, intellectual property and all
other proprietary information of Company; (ii) the terms of this Agreement; and (iii) any
other information identified as confidential in writing by Company. Confidential Information
shall not include information that: (a) was lawfully known by Director without an obligation
of confidentiality before its receipt from Company; (b) is independently developed by Director
without reliance on or use of Confidential Information; (c) is or becomes publicly available
without a breach by Director of this Agreement; or (d) is disclosed to Director by a third
party which is not required to maintain its confidentiality. An “Affiliate” of
a Party shall mean any entity directly or indirectly controlling, controlled by, or under
common control with, such Party at any time during the Term for so long as such control exists. |
| (b) | Company
Ownership. Company shall retain all right, title, and interest to the Confidential Information,
including all copies thereof and all rights to patents, copyrights, trademarks, trade secrets
and other intellectual property rights inherent therein and appurtenant thereto. Subject
to the terms and conditions of this Agreement, Company hereby grants Director a non-exclusive,
non-transferable, license during the Term to use any Confidential Information solely to the
extent that such Confidential Information is necessary for the performance of Director’s
duties hereunder. Director shall not, by virtue of this Agreement or otherwise, acquire any
proprietary rights whatsoever in Confidential Information, which shall be the sole and exclusive
property and confidential information of Company. No identifying marks, copyright or proprietary
right notices may be deleted from any copy of Confidential Information. Nothing contained
herein shall be construed to limit the rights of Company from performing similar services
for, or delivering the same or similar deliverable to, third parties using the Confidential
Information and/or using the same personnel to provide any such services or deliverables. |
| (c) | Confidentiality
Obligations. Director agrees to hold the Confidential Information in confidence and not
to copy, reproduce, sell, assign, license, market, transfer, give or otherwise disclose such
Confidential Information to any Person or to use the Confidential Information for any purposes
whatsoever, without the express written permission of Company, other than disclosure to Director’s,
partners, principals, directors, officers, employees, subcontractors and agents on a “need-to-know”
basis as reasonably required for the performance of Director’s obligations hereunder
or as otherwise agreed to herein. Director shall be responsible to Company for any violation
of this Section 5 by Director’s employees, subcontractors, and agents. Director shall
maintain the Confidential Information with the same degree of care, but no less than a reasonable
degree of care, as Director employs concerning its own information of like kind and character. |
| (d) | Required
Disclosure. If Director is requested to disclose any of the Confidential Information
as part of an administrative or judicial proceeding, Director shall, to the extent permitted
by applicable law, promptly notify Company of that request and cooperate with Company, at
Company’s expense, in seeking a protective order or similar confidential treatment
for the Confidential Information. If no protective order or other confidential treatment
is obtained, Director shall disclose only that portion of Confidential Information which
is legally required and will exercise all reasonable efforts to obtain reliable assurances
that confidential treatment will be accorded the Confidential Information which is required
to be disclosed. |
| (e) | Enforcement.
Director acknowledges that the Confidential Information is unique and valuable, and that
remedies at law will be inadequate to protect Company from any actual or threatened breach
of this Section 5 by Director and that any such breach would cause irreparable and continuing
injury to Company. Therefore, Director agrees that Company shall be entitled to seek equitable
relief with respect to the enforcement of this Section 5 without any requirement to post
a bond, including, without limitation, injunction and specific performance, without proof
of actual damages or exhausting other remedies, in addition to all other remedies available
to Company at law or in equity. For greater clarity, in the event of a breach or threatened
breach by Director of any of the provisions of this Section 5, in addition to and not in
limitation of any other rights, remedies or damages available at law or in equity, Company
shall be entitled to a permanent injunction or other like remedy in order to prevent or restrain
any such breach or threatened breach by Director, and Director agrees that an interim injunction
may be granted against Director immediately on the commencement of any action, claim, suit
or proceeding by Company to enforce the provisions of this Section 5, and Director further
irrevocably consents to the granting of any such interim or permanent injunction or any like
remedy. If any action at law or in equity is necessary to enforce the terms of this Section
5, Director, if it is determined to be at fault, shall pay Company’s reasonable legal
fees and expenses on a substantial indemnity basis. |
| (f) | Related
Duties. Director shall: (i) promptly deliver to Company upon Company’s request
all materials in Director’s possession which contain Confidential Information; (ii)
use its best efforts to prevent any unauthorized use or disclosure of the Confidential Information;
(iii) notify Company in writing immediately upon discovery of any such unauthorized use or
disclosure; and (iv) cooperate in every reasonable way to regain possession of any Confidential
Information and to prevent further unauthorized use and disclosure thereof. |
| (g) | Legal
Exceptions. Further notwithstanding the foregoing provisions of this Section 5, Director
may disclose confidential information as may be expressly required by law, governmental rule,
regulation, executive order, court order, or in connection with a dispute between the Parties;
provided that prior to making any such disclosure, subject to applicable law, Director shall
use its best efforts to: (i) provide Company with at least fifteen (15) days’ prior
written notice setting forth with specificity the reason(s) for such disclosure, supporting
documentation therefor, and the circumstances giving rise thereto; and (ii) limit the scope
and duration of such disclosure to the strictest possible extent. |
| (h) | Limitation.
Except as specifically set forth herein, no licenses or rights under any patent, copyright,
trademark, or trade secret are granted by Company to Director hereunder, or are to be implied
by this Agreement. Except for the restrictions on use and disclosure of Confidential Information
imposed in this Agreement, no obligation of any kind is assumed or implied against either
Party or their Affiliates by virtue of meetings or conversations between the Parties hereto
with respect to the subject matter stated above or with respect to the exchange of Confidential
Information. Each Party further acknowledges that this Agreement and any meetings and communications
of the Parties and their affiliates relating to the same subject matter shall not: (i) constitute
an offer, request, invitation or contract with the other Party to engage in any research,
development or other work; (ii) constitute an offer, request, invitation or contract involving
a buyer-seller relationship, joint venture, teaming or partnership relationship between the
Parties and their affiliates; or (iii) constitute a representation, warranty, assurance,
guarantee or inducement with respect to the accuracy or completeness of any Confidential
Information or the non-infringement of the rights of third persons. |
6. | Intellectual
Property Rights. |
| (a) | Disclosure
of Work Product. As used in this Agreement, the term “Work Product” means
any invention, whether or not patentable, know-how, designs, mask works, trademarks, formulae,
processes, manufacturing techniques, trade secrets, ideas, artwork, software or any copyrightable
or patentable works. Director agrees to disclose promptly in writing to Company, or any Person
designated by Company, all Work Product that is solely or jointly conceived, made, reduced
to practice, or learned by Director in the course of any work performed for Company (“Company
Work Product”). Director agrees (a) to use Director’s best efforts to maintain
such Company Work Product in trust and strict confidence; (b) not to use Company Work Product
in any manner or for any purpose not expressly set forth in this Agreement; and (c) not to
disclose any such Company Work Product to any third party without first obtaining Company’s
express written consent on a case-by-case basis. |
| (b) | Ownership
of Company Work Product. Director agrees that any and all Company Work Product conceived,
written, created or first reduced to practice in the performance of work under this Agreement
shall be deemed “work for hire” under applicable law and shall be the sole and
exclusive property of Company. |
| (c) | Assignment
of Company Work Product. Director irrevocably assigns to Company all right, title and
interest worldwide in and to the Company Work Product and all applicable intellectual property
rights related to the Company Work Product, including without limitation, copyrights, trademarks,
trade secrets, patents, moral rights, contract and licensing rights (the “Proprietary
Rights”). Except as set forth below, Director retains no rights to use the Company
Work Product and agrees not to challenge the validity of Company’s ownership in the
Company Work Product. Director hereby grants to Company a perpetual, non-exclusive, fully
paid-up, royalty-free, irrevocable and world-wide right, with rights to sublicense through
multiple tiers of sublicensees, to reproduce, make derivative works of, publicly perform,
and display in any form or medium whether now known or later developed, distribute, make,
use and sell any and all Director owned or controlled Work Product or technology that Director
uses to complete the services and which is necessary for Company to use or exploit the Company
Work Product. |
| (d) | Assistance.
Director agrees to cooperate with Company or its designee(s), both during and after the
Term, in the procurement and maintenance of Company’s rights in Company Work Product
and to execute, when requested, any other documents deemed necessary by Company to carry
out the purpose of this Agreement. Director will assist Company in every proper way to obtain,
and from time to time enforce, United States and foreign Proprietary Rights relating to Company
Work Product in any and all countries. Director’s obligation to assist Company with
respect to Proprietary Rights relating to such Company Work Product in any and all countries
shall continue beyond the termination of this Agreement, but Company shall compensate Director
at a reasonable rate to be mutually agreed upon after such termination for the time actually
spent by Director at Company’s request on such assistance. |
| (e) | Execution
of Documents. In the event Company is unable for any reason, after reasonable effort,
to secure Director’s signature on any document requested by Company pursuant to this
Section 6 within seven (7) days of the Company’s initial request to Director, Director
hereby irrevocably designates and appoints Company and its duly authorized officers and agents
as its agent and attorney in fact, which appointment is coupled with an interest, to act
for and on its behalf solely to execute, verify and file any such documents and to do all
other lawfully permitted acts to further the purposes of this Section 6 with the same legal
force and effect as if executed by Director. Director hereby waives and quitclaims to Company
any and all claims, of any nature whatsoever, which Director now or may hereafter have for
infringement of any Proprietary Rights assignable hereunder to Company. |
| (f) | Director
Representations and Warranties. Director hereby represents and warrants that: (i) Company
Work Product will be an original work of Director or all applicable third parties will have
executed assignments of rights reasonably acceptable to Company; (ii) neither the Company
Work Product nor any element thereof will infringe the intellectual property rights of any
third party; (iii) neither the Company Work Product nor any element thereof will be subject
to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances
or encroachments; (iv) Director will not grant, directly or indirectly, any rights or interest
whatsoever in the Company Work Product to any third party; (v) Director has full right and
power to enter into and perform Director’s obligations under this Agreement without
the consent of any third party; (vi) Director will use best efforts to prevent injury to
any Person (including employees of Company) or damage to property (including Company’s
property) during the Term; and (vii) should Company permit Director to use any of Company’s
equipment, tools, or facilities during the Term, such permission shall be gratuitous and
Director shall be responsible for any injury to any Person (including death) or damage to
property (including Company’s property) arising out of use of such equipment, tools
or facilities. |
7. | Director’s
Representation and Acknowledgment. Director represents to the Company that Director’s
execution and performance of this Agreement shall not be in violation of any agreement or
obligation (whether or not written) that Director may have with or to any Person, including
without limitation, any prior or current employer. The Director hereby acknowledges and agrees
that this Agreement (and any other agreement or obligation referred to herein) shall be an
obligation solely of the Company, and the Director shall have no recourse whatsoever against
any shareholder of Company or any of any of its affiliate or subsidiary companies with respect
to any matter arising under this Agreement. |
8. | Effect
of Waiver. The waiver by either Party of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach hereof. No waiver
shall be valid unless in writing. |
9. | Assignment.
No Party shall have any power or any right to assign or transfer, in whole or in part, this
Agreement, or any of its rights or any of its obligations hereunder, including, without limitation,
any right to pursue any claim for damages pursuant to this Agreement or the transactions
contemplated herein, or to pursue any claim for any breach or default of this Agreement,
or any right arising from the purported assignor’s due performance of its obligations
hereunder, without the prior written consent of the other Party and any such purported assignment
in contravention of the provisions herein shall be null and void and of no force or effect,
provided that, notwithstanding the foregoing, the Company may transfer, assign or delegate
to any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the Company any of Company’s
rights, obligations or duties hereunder. |
10. | No
Third-Party Rights. Except as expressly provided in this Agreement, this Agreement is
intended solely for the benefit of the Parties hereto and is not intended to confer any benefits
upon, or create any rights in favor of, any Person other than the Parties hereto. |
11. | Entire
Agreement; Effectiveness of Agreement. This Agreement sets forth the entire agreement
of the Parties hereto and shall supersede any and all prior agreements and understandings
concerning the Director’s employment by the Company. This Agreement may be changed
only by a written document signed by the Director and the Company. |
12. | Survival.
The provisions of Section 5, Section 6, and Section 9 through Section 23, inclusive, shall
survive any termination or expiration of this Agreement, and provided that any expiration
or termination of this Agreement shall not excuse a Party from compliance with, or fulfillment
of, any obligations or conditions which arose prior to such expiration or termination. |
13. | Severability.
If any one or more of the provisions, or portions of any provision, of the Agreement shall
be held to be invalid, illegal or unenforceable, the validity, legality or enforceability
of the remaining provisions or parts hereof shall not in any way be affected or impaired
thereby. |
14. | Governing
Law and Waiver of Jury Trial. |
| (a) | All
questions concerning the construction, validity, enforcement and interpretation of this Agreement
shall be determined, and this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Delaware, and for all purposes shall be
construed in accordance with the laws of such state, without giving effect to the choice
of law provisions of such state. |
| (b) | Subject
to Section 15, each Party agrees that all legal proceedings concerning this Agreement shall
be commenced in the state and federal courts sitting in HENDERSON A COUNTY, NORTH CAROLINA
State (the “Selected Courts”). Each Party hereto hereby irrevocably submits to
the exclusive jurisdiction of the Selected Courts for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed herein
(including with respect to the enforcement of the rights of a Party under this Agreement),
and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of such Selected Courts,
or such Selected Courts are improper or inconvenient venue for such proceeding. Each Party
hereby irrevocably waives personal service of process and consents to process being served
in any such suit, action or proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such Party at the address in effect
for notices to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any other manner permitted by applicable
law. |
| (c) | TO
THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 14(c). |
| (d) | Subject
to the provisions of Section 15, if any Party shall commence an action or proceeding to enforce
any provisions of this Agreement, then the prevailing Party in such action or proceeding
shall be reimbursed by the other Party for its attorney’s fees and other costs and
expenses incurred in the investigation, preparation and prosecution of such action or proceeding. |
15. | Arbitration.
Any controversy, claim or dispute arising out of or relating to this Agreement or the Director’s
employment by the Company, including, but not limited to, common law and statutory claims
for discrimination, wrongful discharge, and unpaid wages, shall be resolved by arbitration
in Henderson County, North Carolina pursuant to then-prevailing National Rules for the Resolution
of Employment Disputes of the American Arbitration Association. The arbitration shall be
conducted by three arbitrators, with one arbitrator selected by each Party and the third
arbitrator selected by the two arbitrators so selected by the Parties. The arbitrators shall
be bound to follow the applicable Agreement provisions in adjudicating the dispute. It is
agreed by both Parties that the arbitrators’ decision is final, and that no Party may
take any action, judicial or administrative, to overturn such decision. The judgment rendered
by the arbitrators may be entered in the Selected Courts. Each Party will pay its own expenses
of arbitration and the expenses of the arbitrators will be equally shared provided that,
if in the opinion of the arbitrators any claim, defense, or argument raised in the arbitration
was unreasonable, the arbitrators may assess all or part of the expenses of the other Party
(including reasonable attorneys’ fees) and of the arbitrators as the arbitrators deem
appropriate. The arbitrators may not award either Party punitive or consequential damages. |
16. | General
Remedies. Each Party acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to the other Party, and thus each Party acknowledges that the remedy
at law for a breach of its obligations under this Agreement will be inadequate and agrees,
in the event of a breach or threatened breach by such Party of the provisions of this Agreement,
that the other Party shall be entitled, in addition to all other available remedies at law
or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions
restraining, preventing or curing any breach of this Agreement and to enforce specifically
the terms and provisions hereof, without the necessity of showing economic loss and without
any bond or other security being required. |
17. | Indemnification.
During the Term, the Director shall be entitled to indemnification and insurance coverage
for officers’ liability, fiduciary liability and other liabilities arising out of the
Director’s position with the Company in any capacity, in an amount not less than the
highest amount available to any other director, and such coverage and protections, with respect
to the various liabilities as to which the Director has been customarily indemnified prior
to termination of employment, shall continue for at least six years following the end of
the Term. Any indemnification agreement entered into between the Company and the Director
shall continue in full force and effect in accordance with its terms following the termination
of this Agreement. |
18. | Expenses.
Other than as specifically set forth herein, each of the Parties will bear their own respective
expenses, including legal, accounting and professional fees, incurred in connection with
this Agreement and the transactions contemplated herein. |
19. | Notices.
All notices and other communications hereunder shall be in writing and shall be given by
hand delivery to the other Party, or by registered or certified mail, return receipt requested,
postage prepaid, or by email with return receipt requested and received or nationally recognized
overnight courier service, addressed as set forth below or to such other address as either
Party shall have furnished to the other in writing in accordance herewith. All notices, requests,
demands and other communications shall be deemed to have been duly given (i) when delivered
by hand, if personally delivered, (ii) when delivered by courier or overnight mail, if delivered
by commercial courier service or overnight mail, and (iii) on receipt of confirmed delivery,
if sent by email. |
If
to the Company:
MDWerks,
Inc.
Attn:
Steven C. Laker
stevel@mdwerksinc.com
With
a copy, which shall not constitute notice, to:
Anthony,
Linder & Cacomanolis, PLLC
Attn:
Jessica Haggard
1700
Palm Beach Lakes Blvd. Suite 820
West
Palm Beach, FL 33401
Email:
JHaggard@ALClaw.com
If
to Director, to the address for notices as set forth on the signature page hereof:
20. | Headings.
The section headings contained in this Agreement are inserted for convenience only and shall
not affect in any way the meaning or interpretation of this Agreement. |
21. | Counsel.
The Parties acknowledge and agree that Anthony L.G., PLLC (“Counsel”) has acted
as legal counsel to the Company, and that Counsel has prepared this Agreement at the request
of the Company, and that Counsel is not legal counsel to Director individually. Each of the
Parties acknowledges and agrees that they are aware of, and have consented to, the Counsel
acting as legal counsel to the Company and preparing this Agreement, and that Counsel has
advised each of the Parties to retain separate counsel to review the terms and conditions
of this Agreement and the other documents to be delivered in connection herewith, and each
Party has either waived such right freely or has otherwise sought such additional counsel
as it has deemed necessary. Each of the Parties acknowledges and agrees that Counsel does
not owe any duties to Director in Director’s individual capacity in connection with
this Agreement and the transactions contemplated herein. Each of the Parties hereby waives
any conflict of interest which may apply with respect to Counsel’s actions as set forth
herein, and the Parties confirm that the Parties have previously negotiated the material
terms of the agreements as set forth herein. |
22. | Rule
of Construction. The general rule of construction for interpreting a contract, which
provides that the provisions of a contract should be construed against the Party preparing
the contract, is waived by the Parties hereto. Each Party acknowledges that such Party was
represented by separate legal counsel in this matter who participated in the preparation
of this Agreement or such Party had the opportunity to retain counsel to participate in the
preparation of this Agreement but elected not to do so. |
23. |
Execution in Counterparts, Electronic Transmission.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. The signature of any Party which
is transmitted by any reliable electronic means such as, but not limited to, a photocopy, electronically scanned or facsimile machine,
for purposes hereof, is to be considered as an original signature, and the document transmitted is to be considered to have the same
binding effect as an original signature or an original document. |
[Signatures
appear on following page]
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
|
MDWerks, Inc. |
|
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By: |
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Name: |
Steven C. Laker |
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Title: |
Chief Executive Officer |
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Address
for notices: |
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[XXX] |
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