Exhibit 3.5
AGREEMENT, dated as of the 25th day of March, 2002, between Go2
Pharmacy, Inc., a Florida corporation having an address at 0000 Xxxxx Xxxxx
Xxxx, Xxxxx, Xxxxxxx 00000 ("Corporation"), and JB Capital Corp., a Florida
corporation, having an address at 0000 Xxxxx Xxxxx Xxxx, Xxxxx, Xxxxxxx 00000
("Stockholder").
1. Recitals.
Corporation previously issued 150,000 shares of series A
preferred stock, no par value (the "Preferred Stock") which are now beneficially
owned by and registered in the name of Stockholder. The Preferred Stock
certificate of designation, powers, preferences and rights (the "Preferred Stock
Designation") contains provisions requiring the mandatory redemption of the
Preferred Stock under certain circumstances. Corporation and Stockholder wish to
modify the rights and obligations for redemption of the Preferred Stock, upon
the terms and conditions set forth herein.
2. Modified Redemption.
Notwithstanding anything contained in the Preferred Stock
Designation, the following amounts of Cash Basis Net Income (as hereafter
defined) of the Corporation shall be used to redeem the Preferred Stock:
Cash Basis Net Income Payment
$0 to $24,999 -0-
$25,000 to $124,999 $25,000
$125,000 to $224,999 $50,000
$225,000 to $324,999 $75,000
$325,000 to $424,999 $100,000
An additional $25,000 will be paid to Stockholder in payment of redemption
amounts for each additional $100,000 of Cash Basis Net Income above $424,999,
commencing with the first dollar
of such $100,000. Such amounts shall be computed on a monthly basis and all
amounts to be applied to redemption of Preferred Stock shall be paid to
Stockholder within ten days after Corporation files each periodic report with
the Securities and Exchange Commission. Cash basis Net Income shall mean the net
income/loss of the Corporation, net of amortization, depreciation and other
non-cash charges. The determination of such amounts shall be based upon
financial statements reviewed or audited by the Corporation's independent public
accountants. All amounts paid to Stockholder shall first be applied to accrued
but unpaid dividends on the Preferred Stock.
3. Acceleration of Redemption.
In the event of: (A) a change in control of Corporation as
evidenced by (i) a change in a majority of the members of the Corporation's
Board of Directors as constituted as of the date hereof, as a result of one
transaction or a series of related transactions, or (ii) the issuance or
transfer of a number of shares of common stock (or other security entitled to
vote with common stock), which constitutes a majority of the voting power of the
common stock (together with any such other class entitled to vote therewith), in
one transaction or a series of related transactions; or (B) the termination of
the employment of either Xxxxx Xxxxxx or Xxxxx Xxxx-Xxxxxxx, without such
employee's consent, then, all outstanding shares of Preferred Stock shall be
redeemed and all accrued but unpaid dividends shall be paid within 30 days of
the occurrence of any of the foregoing events.
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4. Miscellaneous Provisions.
4.1 Governing Law. This Agreement shall be construed and enforced
according to the laws of the State of Florida. Any dispute regarding the terms
and conditions shall be adjudicated under the laws of the State of Florida.
Corporation and Stockholder hereby irrevocably consent to the jurisdiction of
the Sixth Circuit Court for the State of Florida and/or the United States
District Court for the Middle District of Florida in connection with any action
or proceeding arising out of or relating to this Agreement.
4.2 Amendment and Modification. This Agreement may only be
amended by a written agreement executed by the parties hereto.
4.3 No Assignment, Successors and Assigns. This Agreement shall
not be transferable or assignable by Corporation or Stockholder without the
express written consent of the other party. This Agreement shall inure to the
benefit and be binding upon all parties and on their respective successors and
permitted assigns.
4.4 Notices. Any notice or other communication permitted or
required to be given hereunder shall be in writing and shall be deemed to have
been given upon mailing on the date postmarked thereupon, by first class
registered mail, postage prepaid addressed to the parties at the addresses set
forth on the first page of this Agreement.
4.5 Entire Agreement. This Agreement sets forth the entire
agreement between the parties with respect to its subject matter and supersedes
all prior understandings and agreements with respect thereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
GO2 PHARMACY, INC.,
a Florida corporation
/s/ Kotha X. Xxxxxxxx
By:_________________
Kotha X. Xxxxxxxx,
President
JB CAPITAL CORP.,
a Florida corporation
/s/ Xxxxx X. Xxxxxx
By:_________________________
Xxxxx X. Xxxxxx,
President
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