MDWERKS, INC. Item 1.01. Entry into a Material Definitive Agreement.
Two Trees Merger Agreement
On
The Merger Agreement provides that, subject to the terms and conditions set
forth in the Merger Agreement, the Parties wish to effect a business combination
through a merger of Merger Sub with and into Two Trees (the "Merger"), subject
to the terms and conditions set forth in the Merger Agreement, with Two Trees
continuing as the surviving corporation ("Surviving Corporation"). As a result
of the Merger, the certificate of incorporation of Two Trees as in effect
immediately prior to the closing date will be the certificate of incorporation
of the
Pursuant to the terms of the Merger Agreement, at the closing of the Merger, the
Company's Board of Directors (the "Company Board") will be expanded and a number
of persons as named by Two Trees will be named to the Company Board such that
such persons comprise a majority of the Company Board, and the Company Board as
such newly constituted will name or replace any officers of the Company as it
may determine. In addition, at the closing of the Merger, the directors and
officers of Two Trees as in place immediately prior to the closing will remain
in place as the directors and officers of the
The Board of Directors of Merger Sub and the Company Board unanimously approved the transactions contemplated by the Merger Agreement, including the Merger, and the Company as the sole stockholder of Merger Sub approved the Merger Agreement and the Merger.
In consideration of the Merger Agreement, at the effective time of the Merger, each of the holders of Two Trees stock, subject to certain exceptions set forth in the Merger Agreement, shall have the right to convert all of the shares of Two Trees stock into a total of 60,000,000 shares of Company common stock, which shall be apportioned between the Two Trees stockholders, pro rata, based on the number of shares of Two Trees stock held by each of the Two Trees stockholders as of the closing of the Merger (the "Merger Consideration").
Under the Merger Agreement, at the effective time of the Merger, each of the issued and outstanding shares of common stock of Two Trees, subject to certain exceptions set forth in the Merger Agreement, shall be converted into shares of the Company's common stock.
At the effective time of the Merger, shares of Two Tree's common stock generally will be treated in the following manner:
? (1) Any shares of Two Trees common stock held as treasury stock or held or
owned by Two Trees or Merger Sub immediately prior to the effective time of
the Merger will be canceled and retired and will cease to exist, and no
consideration will be delivered in exchange therefor; and (2) each share of
Two Trees common stock outstanding immediately prior to the effective time of
the Merger, excluding shares to be canceled pursuant to (1) herein and
excluding shares of Two Trees common stock who have exercised and perfected
appraisal rights for such shares in accordance with the Delaware General
Corporation Law, will be automatically converted solely into the right to
receive a number of shares of Company common stock equal to those set forth in
the Merger Consideration.
? No fractional shares of Company common stock will be issued in connection with
the Merger and any fractional share otherwise issuable to any Two Trees
stockholder will be rounded up to the next whole share.
? Each share of common stock of Merger Sub issued and outstanding immediately
prior to the effective time of the Merger will be converted into and exchanged
for one validly issued, fully paid and nonassessable share of common stock,
$0.001 par value per share, of the Surviving Corporation . Each stock
certificate of Merger Sub evidencing ownership of any such shares will, as of
the effective time of the Merger, evidence shares of common stock of the
Surviving Corporation .
According to the terms of the Merger Agreement, the Company common stock issued at the closing of the Merger will be subject to a lock-up, pursuant to which the Two Trees stockholders receiving shares of the Company's common stock will not transfer or dispose of the shares except according to the following schedule: (1) one-third of the shares will be released from the restriction on the nine-month anniversary of the effective date of the Merger; (2) one-third of the shares will be released from the restrictions on the 18-month anniversary of the effective date of the Merger; and (3) the remaining one-third of the shares will be released from the restrictions on the 36-month anniversary of the effective date of the Merger.
At the effective time of the Merger, Two Trees' stock options (the "Two Trees Options") generally will be treated in the following manner:
? Two Trees option holders will exchange all of their Two Trees Options for
options to acquire shares of Company common stock (the "MDwerks Options").
? The MDwerks Options will provide for substantially the same terms as the Two
Trees Options, other than (1) they will be fully vested at issuance, and will
increase the number of shares of Company common stock underlying the MDwerks
Options from the number of shares of Two Trees common stock underlying the Two
Trees Options, and (2) will retain the same exercise price per share of
Company common stock underlying the MDwerks Options as the exercise price per
share of Two Trees common stock underlying the Two Trees Options, in each case
as necessary to provide for the same spread value for each applicable option
holder.
Consummation of the Merger is subject to the satisfaction or waiver of customary
closing conditions, including: (1) approval of the Merger Agreement by the Two
Trees stockholders; (2) the absence of any law or order by a governmental
authority of
Pursuant to the terms of the Merger Agreement, Two Trees agreed that at the
closing of the Merger,
The Merger Agreement contains customary representations, warranties and covenants made by each of the Company, Merger Sub and Two Trees, including, among others, covenants by Two Trees regarding the conduct of its business prior to the closing of the Merger.
Either the Company or Two Trees may terminate the Merger Agreement prior to the closing date if, among certain other circumstances, certain conditions of the closing have not been satisfied. The Merger Agreement may be terminated by the Company if, among other things, (1) the Two Trees stockholders vote against the adoption of the Merger Agreement; (2) any Action is brought by a third-party non-Affiliate to enjoin or otherwise restrict the consummation of the closing; or (3) within five business days after receipt by the opposing Party of written notice thereof that the other Party is not reasonably capable of curing a material breach of the Merger Agreement prior to the termination date thereof.
The Parties intend, for
The foregoing description of the Merger Agreement is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit 2.1 and is incorporated herein by reference.
Amendment No. 1 to Two Trees Merger Agreement
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Except as set forth in Amendment No. 1, the Merger Agreement remains in full force and effect.
The foregoing description of Amendment No. 1 is qualified in its entirety by reference to the full text of Amendment No. 1, a copy of which is filed as Exhibit 2.2 and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 2.1 Merger Agreement, datedFebruary 13, 2023 , by and amongMDwerks, Inc. ,MD-TT Merger Sub, Inc. andTwo Trees Beverage Co. 2.2 Amendment No. 1 to Merger Agreement, datedFebruary 16, 2023 , by and amongMDwerks, Inc. ,MD-TT Merger Sub, Inc. andTwo Trees Beverage Co. 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
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