UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
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411 Walnut Street, Suite 20125
Green Cove Springs, FL 32043
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Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Amended and Restated Certificate of Incorporation
On September 13, 2022, MDWerks, Inc., a Delaware corporation (the “Company”) filed an Amended and Restated Certificate of Incorporation (the “A&R Certificate”) with the Delaware Secretary of State. The A&R Certificate was approved by the Company’s board of directors and by stockholders holding a majority of the voting power of the Company’s issued and outstanding capital stock. Set forth in the table below is a summary of the differences between the Company’s prior certificate of incorporation, as amended (the “Prior Certificate”), and the A&R Certificate.
| Provision of Prior Certificate | Provision of A&R Certificate | |||
| Registered Office | SECOND Its registered office in the State of Delaware is to be located at 2711 Centerville Road, Suite 400, in the City of Wilmington, County of New Castle and its registered agent at such address is CORPORATION SERVICE COMPANY. | Section 2. The name and address of the registered agent of the Corporation in the State of Delaware is Corporate Creations Network Inc., 3411 Silverside Road Tatnall Building #104, Wilmington, DE 19810, New Castle County, or such other agent and address as the Board of Directors of the Corporation (the “Board”) shall from time to time select. | ||
| Description of Capital Stock | FOURTH The total number of shares of stock which this corporation is authorized to issue is One Hundred Million (100,000,000) shares of common stock with a par value of $.001 and Ten million (10,000,000) shares of preferred stock with a par value of $.001. | Section 4 The total number of shares of all classes of stock, which the Corporation shall have authority to issue shall be Three Hundred Million (300,000,000) shares of common stock, par value of $0.001 per share (the “Common Stock”) and Ten Million (10,000,000) shares of preferred stock, par value of $0.001 per share (the “Preferred Stock”). | ||
| Preemptive Rights of Common Stock | Not addressed | Section 4(b)(i) No shareholders of the Corporation holding Common Stock shall have any preemptive or other right to subscribe for any additional unissued or treasury shares of stock or for other securities of any class, or for rights, warrants or options to purchase stock, or for scrip, or for securities of any kind convertible into stock or carrying stock purchase warrants or privileges unless so authorized by the Corporation. |
| Provision of Prior Certificate | Provision of A&R Certificate | |||
| Voting Rights and Powers of Common Stock | Not addressed | Section 4(b)(ii) With respect to all matters upon which stockholders are entitled to vote or to which stockholders are entitled to give consent, the holders of the outstanding shares of the Common Stock shall be entitled to cast thereon one (1) vote in person or by proxy for each share of the Common Stock standing in his/her name. | ||
| Cash Dividends | Not addressed | Section 4(b)(iii)(A) Subject to the rights of holders of Preferred Stock, holders of Common Stock shall be entitled to receive such cash dividends as may be declared thereon by the Board from time to time out of assets of funds of the Corporation legally available therefore. | ||
| Other Dividends and Distributions of Common Stock | Not addressed | Section 4(b)(iii)(B) The Board may issue shares of the Common Stock in the form of a distribution or distributions pursuant to a stock dividend or split-up of the shares of the Common Stock. | ||
| Other Rights of Common Stock | Not addressed | Section 4(b)(iv) Except as otherwise required by the DGCL and as may otherwise be provided in these Certificate of Incorporation, each share of the Common Stock shall have identical powers, preferences and rights, including rights in liquidation. | ||
| Classes of Preferred Stock | Not addressed | Section 4(c) The powers, preferences, rights, qualifications, limitations and restrictions pertaining to the Preferred Stock, or any series thereof, shall be such as may be fixed, from time to time, by the Board in its sole discretion. | ||
| Authority of Board to fix powers, rights, restrictions of preferred stock | Not addressed. | Section 4(c)(i) – 4(c)(ix) describes the authority of the Board to determine various powers, rights, and restrictions pertaining to the preferred stock |
| Provision of Prior Certificate | Provision of A&R Certificate | |||
| Cumulative Voting | Not addressed. | Section 4(e) Except as otherwise required by applicable law, there shall be no cumulative voting on any matter brought to a vote of stockholders of the Corporation. | ||
| Voting as One Class | Not addressed. | Section 4(f) provides that except as otherwise required by the DGCL, the certificate of incorporation or any designation for a class of preferred stock, (i) all shares of capital stock of the Corporation shall vote together as one class on all matters submitted to a vote of the stockholders; and (ii) the affirmative vote of a majority of the voting power of all outstanding shares of voting stock entitled to vote in connection with the applicable matter shall be required for approval of such matter. | ||
| Section 242(b)(2) Election | Not addressed. | Section 4(g) indicates that for the avoidance of doubt, the intent of Section 4(g) is, and the operation of Section 4(f) shall be, that, without limitation, (i) the number of authorized shares of common stock may be increased or decreased by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote irrespective of Section 242(b)(2) of the DGCL, with no vote of any holders of a particular class of stock, voting as a separate class, being required; and (ii) unless otherwise set forth in a certificate of designations for the applicable class of preferred stock, the number of authorized shares of any class of preferred stock may be increased or decreased by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote irrespective of Section 424(b)(2) of the DGCL, with no vote of any holders of a particular class of stock, voting as a separate class, being required. | ||
| Adoption of Bylaws | SIXTH The Board of Directors shall have the power to adopt, amend or repeal the by-laws. | Section 6. In the furtherance and not in limitation of the powers conferred by statute and subject to Section 7, the Board is expressly authorized to adopt, repeal, rescind, alter or amend in any respect the bylaws of the Corporation. Section 3(g). Corporation shall have power to make bylaws not inconsistent with the constitution or laws of the United States or of the State of Delaware. |
| Provision of Prior Certificate | Provision of A&R Certificate | |||
| Stockholder Amendment of Bylaws | Not addressed. | Section 7. Notwithstanding Section 6, the Bylaws may also be adopted, repealed, rescinded, altered or amended in any respect by the stockholders of the Corporation, but only by the affirmative vote of the holders of the holders of a majority of the voting power of all outstanding shares of voting stock, regardless of class and voting together as a single voting class. | ||
| Management of Corporation | Not addressed. | Section 7. Board of Directors. The business and affairs of the Corporation shall be managed by and under the direction of the Board. Except as may otherwise be provided in connection with rights to elect additional directors under specified circumstances, which may be granted to the holders of any class or series of Preferred Stock, the number of directors of the Corporation may be amended from time to time as set forth in the Bylaws. The exact number of directors shall be fixed from time to time by the Board pursuant to a resolution adopted by a majority of the full Board. Directors need not be stockholders. | ||
| Interested Directors | Not addressed. | Section 10. No contract or transaction between the Corporation and any of its directors, or between the Corporation and any other corporation, firm, association or other legal entity shall be invalidated by reason of the fact that the director of the Corporation has a direct or indirect interest, pecuniary or otherwise, in such corporation, firm, association or legal entity, or because the interested director was present at the meeting of the Board which acted upon or in reference to such contract or transaction, or because he participated in such action, provided that (i) the interest of each such director shall have been disclosed to or known by the Board and a disinterested majority of the Board shall have ratified and approved such contract or transaction; or (ii) the conditions of DGCL Title 8, Section 144 are met. |
| Provision of Prior Certificate | Provision of A&R Certificate | |||
| Term of Board of Directors | Not addressed. | Section 11. Except as otherwise required by applicable law, each director shall serve for a term ending on the date of the third Annual Meeting of Stockholders of the Corporation (the “Annual Meeting”) following the Annual Meeting at which such director was elected. All directors shall have equal standing. Notwithstanding the foregoing provisions of this Section 11, each director shall serve until their successor is elected and qualified or until his death, resignation or removal. All directors shall have equal standing. Notwithstanding the foregoing provisions of this Section 11, no decrease in the authorized number of directors shall shorten the term of any incumbent director, and additional directors, elected in connection with rights to elect such additional directors under specified circumstances, which may be granted to the holders of any class or series of Preferred Stock, shall serve for such term or terms and pursuant to such other provisions as are specified in the resolution of the Board of Directors establishing such class or series. | ||
| Vacancies on Board of Directors | Not addressed. | Section 12. Except as may otherwise be provided in connection with rights to elect additional directors under specified circumstances, which may be granted to the holders of any class or series of Preferred Stock, newly created directorships resulting from any increase in the number of directors, or any vacancies on the Board resulting from death, resignation, removal, or other causes, shall be filled solely by the quorum of the Board. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of directors in which the new directorship was created or the vacancy occurred and until such director’s successor shall have been elected and qualified or until such director’s death, resignation or removal, whichever first occurs. | ||
| Removal of Directors | Not addressed. | Section 13. Except as may otherwise be provided in connection with rights to elect additional directors under specified circumstances, which may be granted to the holders of any class or series of Preferred Stock, any director may be removed from office only by the affirmative vote of the holders of not less than two-thirds (2/3) of the voting power of the issued and outstanding stock entitled to vote. Failure of an incumbent director to be nominated to serve an additional term of office shall not be deemed a removal from office requiring any stockholder vote. |
| Provision of Prior Certificate | Provision of A&R Certificate | |||
| Stockholder Action | Not addressed. | Section 14. Any action required or permitted to be taken by the stockholders of the Corporation at a duly called Annual Meeting or at a special meeting of stockholders of the Corporation may be authorized or taken by the written consent of the holders of outstanding shares of voting stock having not less than the minimum voting power that would be necessary to authorize or take such action at a meeting of stockholders at which all shares entitled to vote thereon were present and voted, provided all other requirements of applicable law and this Certificate of Incorporation have been satisfied. | ||
| Special Stockholder Meeting | Not addressed. | Section 15. Special meetings of the stockholders of the Corporation for any purpose or purposes may be called at any time by a majority of the Board. Special meetings may not be called by any other person or persons. Each special meeting shall be held at such date and time as is requested by Board, within the limits fixed by law. | ||
| Location of Stockholder Meetings | Not addressed. | Section 16. Meetings of stockholders of the Corporation may be held within or without the State of Delaware, as the Bylaws may provide. The books of the Corporation may be kept (subject to any provision of the DGCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board or in the Bylaws. | ||
| Private Property of Stockholders | Not addressed. | Section 17. The private property of the stockholders shall not be subject to the payment of corporate debts to any extent whatever and the stockholders shall not be personally liable for the payment of the Corporation’s debts. | ||
| Amendments | Not addressed. | Section 18. The Corporation reserves the right to adopt, repeal, rescind, alter or amend in any respect any provision contained in these Certificate of Incorporation in the manner now or hereafter prescribed by applicable law and all rights conferred on stockholders herein granted subject to this reservation. |
| Provision of Prior Certificate | Provision of A&R Certificate | |||
|
Effect of repeal or modification on Liability of Directors |
SEVENTH No amendment to or repeal of this Article Seventh shall apply to or have any effect on the liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment. |
Section 18. Any repeal or modification of Section 18 by the stockholders of the Corporation shall be prospective only and shall not adversely affect any limitation on the personal liability of a director or officer of the Corporation for acts or omissions prior to such repeal or modification. |
| Term of Existence | Not addressed. | Section 19. The Corporation is to have perpetual existence. | ||
| Fiduciary Duty and Liability of Directors | SEVENTH No director shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director. Notwithstanding the foregoing sentence, a director shall be liable to the extent provided by applicable law, (I) for breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation Law or (iv) for any transaction for which the director derived an improper personal benefit. | Section 20. No director of this Corporation shall have personal liability to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director or officers involving any act or omission of any such director or officer. The foregoing provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or, which involve intentional misconduct or a knowing violation of law, (iii) under applicable Sections of the DGCL, (iv) the payment of dividends in violation of the DGCL or, (v) for any transaction from which the director derived an improper personal benefit. | ||
| Indemnification | Not addressed. | Sections 21(a) – 21(l) provides for the indemnification of the Corporation’s officers and directors. | ||
| Forum Selection | Not addressed. | Section 22 Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) an action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine shall be a state or federal court located within the state of Delaware, in all cases subject to the court’s having personal jurisdiction over the indispensable parties named as defendants. Notwithstanding the foregoing, the exclusive forum provision will not apply to suits brought to enforce any liability or duty created by the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, or any claim for which the federal courts have exclusive or concurrent jurisdiction. |
The foregoing description of the A&R Certificate does not purport to be complete and is qualified in its entirety by reference to the A&R Certificate filed as Exhibit 3.1 hereto and incorporated herein by reference.
As of the date and time of the filing of this Form 8-K, the Company has not received confirmation from the Delaware Secretary of State of the effectiveness of the A&R Certificate.
Amended and Restated Bylaws
Also on September 13, 2022, the Company’s board of directors adopted Amended and Restated Bylaws (the “A&R Bylaws”). The A&R Bylaws are filed as Exhibit 3.2 hereto and incorporated herein by reference.
Certificate of Elimination of Certificate of Designations of Preferences and Rights of Series B Convertible Preferred Stock
On March 31, 2008, the Company filed an amended and restated Certificate of Designations (as amended and restated, the “Certificate of Designations”) with the Secretary of State of the State of Delaware. The Certificate of Designations, which designated the rights, preferences, privileges and terms of the Series B Preferred Stock, provided that the Series B Preferred Stock will rank senior to other classes of common stock and preferred stock that were currently outstanding as to distributions of assets upon liquidation, dissolution or winding up and as to payment of dividends on shares of equity securities.
On September 19, 2022, the Company filed a Certificate of Elimination of Certificate of Designations of Preferences and Rights of Series B Convertible Preferred Stock (“Certificate of Elimination”) with the Secretary of State of Delaware and terminated the Certificate of Designations. At the time of the filing of the Certificate of Elimination, no shares of the previously designated series of Preferred Stock were outstanding. The Certificate of Elimination was effective upon filing, and eliminated from our A&R Certificate and Prior Certificate all matters set forth in the previously-filed Certificate of Designation with respect to the previously designated series of Preferred Stock. The Certificate of Elimination is filed as Exhibit 3.3 hereto and incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit | Description | |
| 3.1 | Amended and Restated Certificate of Incorporation of the registrant. | |
3.2 |
||
| 3.3 | Certificate of Elimination of the registrant. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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: September 19, 2022 | /s/ Steven C. Laker |
| Steven C. Laker | |
| Chief Executive Officer |