exv10w2






EXHIBIT 10.2




GOODWILL PROTECTION AGREEMENT




               THIS GOODWILL PROTECTION AGREEMENT is made effective the 2nd day of June, 2008, among
APOTHECARYRX, LLC, an Oklahoma limited liability company (the “Buyer”) and EDWARD FOX, an
individual (“Fox”), SIMPSON GOLD, an individual (“Gold”), LAWRENCE HORWITZ, an individual
(“Horwitz”), and STEVEN FEINERMAN, an individual (“Feinerman” and together with Fox, Gold and
Horwitz, jointly and severally, the “Sellers”).



W I T N E S S E T H:




               WHEREAS, pursuant to that certain Pharmacy Purchase Agreement dated effective May 2, 2008,
(the “Purchase Agreement”) among the Buyer, the Sellers and Parkway Drugs, Inc., an Illinois
corporation, Rehn-Huerbinger Drug Co., an Illinois corporation, 666 Drug Company, an Illinois
corporation, and Wilmette-Huerbinger Drug Co., an Illinois corporation (collectively, the
“Companies”), the Buyer purchased the pharmacy businesses described at Exhibit “A” attached as a
part hereof (together, the “Business”) for a sum in excess of $5,000,000.00;



               WHEREAS, the Sellers are the Shareholders of the Companies as set forth at Exhibit “A” hereto
and have operated the Business for numerous years during which time the Sellers have built a strong
patronage which is the predicate on which the Business is based; and



               WHEREAS, to induce the Buyer to perform the Purchase Agreement and to protect the goodwill
purchased by the Buyer in the Business, the Sellers have agreed to execute, deliver and perform
this Goodwill Protection Agreement.



               NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:




	1.	 	Noncompetition Covenant. The Sellers agree as follows:






	 	1.1.	 	For the five (5) year period beginning on the date of this Goodwill Protection
Agreement, the Sellers agree that the Sellers, the Sellers’ affiliates and any person
receiving a portion of the Purchase Price under the Purchase Agreement will not
undertake any plan, program or effort designed or intended to, directly or indirectly,
contract or provide, solicit or offer to prepare, dispense or sell at retail any
pharmacy, prescription or over the counter drugs or pharmaceuticals (the “Pharmacy
Services”) to any person and the family members of any person, or any entity and the
affiliates of any entity, who acquired Pharmacy Services within the past five (5) years
from the Business (the Customers”).
	 
	 	1.2.	 	For the five (5) year period beginning on the date of this Goodwill Protection
Agreement, the Sellers agree that the Sellers, the Sellers’ parents, subsidiaries,
affiliates and shareholders and any person receiving a portion of the Purchase





			
	 	 	 
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	 	 	 	Price under the Purchase Agreement will not, directly or indirectly, conduct any Pharmacy
Business within ten (10) miles of any location of the Business.




For purposes of this Goodwill Protection Agreement, the term “Pharmacy Business” means: owning,
managing, operating, controlling, engaging in or being connected with as a partner, investor,
stockholder, creditor, guarantor, advisor, employee, independent contractor or consultant, the
business of offering, soliciting, conducting or providing Pharmacy Services. Notwithstanding the
foregoing, the Sellers’ employment with the Buyer will not violate the terms of this Agreement, and
Fox’s and Simpson’s owning or operating of a Pharmacy Business or conducting Pharmacy Services at
any of the following locations (the “Clinics”) will not violate paragraph 1.1 or 1.2 of this
Agreement provided that none of the Customers are solicited outside of the Clinics: (a) the Mount
Sinai Hospital clinic at 15th Street and California Avenue in Chicago, Illinois; (b) Sinai Touhy
Pharmacy, 2907 W. Touhy, Chicago, Illinois, 60645, and (c) Hamlin Pharmacy, 3800 W. Madison St.,
Chicago, Illinois, 60624. The locations of the Clinics may not change without the written consent
of the Buyer. It is further agreed that assistance rendered by any of the Sellers to any of the
Companies pursuant to the performance of a certain Transition Agreement (as defined in such
Purchase Agreement) will not be deemed a breach of this Agreement.



2. Separate Covenants. This Goodwill Protection Agreement will be deemed to consist of a
series of separate covenants independent from any provision of the Purchase Agreement. The Sellers
expressly agree that the character, duration and geographical scope of this Goodwill Protection
Agreement are reasonable in light of the circumstances as existing on the date of this Goodwill
Protection Agreement. However, should a determination nonetheless be made by a court of competent
jurisdiction at a later date that the character, duration or geographical scope of this Goodwill
Protection Agreement is unreasonable in light of the circumstances as then existing or existing at
the execution of this Goodwill Protection Agreement, then it is the intention and the agreement of
the Sellers and the Buyer that this Goodwill Protection Agreement be construed by the court and
given effect in such a manner as to impose only the restrictions on the conduct of the Sellers
which are reasonable in light of the circumstances as then existing and as are necessary to assure
the Buyer of the intended benefit of this Goodwill Protection Agreement. If, in any judicial
proceeding, a court refuses to enforce all of the separate covenants deemed included herein
because, taken together such covenants are more extensive than necessary to assure the Buyer of the
intended benefit of this Goodwill Protection Agreement, it is expressly understood and agreed
between the parties that those covenants not to be enforced in such proceeding will, for the
purpose of such proceeding, be deemed eliminated from the provisions hereof.



3. Periodic Payments. As additional consideration for the Sellers’ execution, delivery and
performance of this Goodwill Protection Agreement, the Buyer agrees to pay to each of the Sellers
sixty (60) monthly payments each in the amount of $1,666.67 allocated as follows: (a) $500.00 to
Fox; (b) $500.00 to Gold; (c) $342.64 to Horwitz; and (d) $324.03 to Feinerman; or in such other
amounts directed in a writing signed by all of the Sellers. The monthly payments will commence on
July 1, 2008, and be made on the 1st day of each month thereafter through and including June 1,
2013. Each such payment will be sent by regular mail to the addresses for
each Seller provided under Paragraph 6.1 of this Goodwill Protection Agreement or such other
address designated by the applicable Seller from time to time.




			
	 	 	 
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4. Default by Sellers. If the Sellers fail to perform any obligation contained in this
Goodwill Protection Agreement, the Purchase Agreement or any instrument entered into in connection
therewith, the Buyer will serve written notice to the Sellers specifying the nature of such default
and demanding performance. If such default has not been cured within five (5) business days after
receipt of such default notice, the Buyer will be entitled to demand specific performance, suspend
performance of any obligation under this Goodwill Protection Agreement, or exercise all remedies
available at law or in equity. Given the nature of the Pharmacy Business, the parties acknowledge
and agree that the goodwill sold by the Sellers and purchased by the Buyer cannot be protected if
the provisions of this Goodwill Protection Agreement are not strictly enforced. Accordingly, the
parties acknowledge and agree that if there is a breach by the Sellers of the provisions of this
Goodwill Protection Agreement, money damages alone will not be adequate and the Buyer will be
entitled to an injunction restraining the Sellers from violating the provisions of this Goodwill
Protection Agreement. In addition to the foregoing and any other remedies available to the Buyer,
at law or in equity, in the event the Sellers are in default and the Buyer is diligently pursuing a
judicial remedy, the periods specified in paragraphs 1.1, 1.2 and 1.3 will be tolled until the
conclusion of the judicial action (the “Tolling Period”) and such periods will be automatically
extended by the number of days elapsed during the Tolling Period. The remedies provided by this
Goodwill Protection Agreement are cumulative and will not exclude any other remedy to which a party
might be entitled under this Goodwill Protection Agreement. In the event, a party elects to
selectively and successively enforce such party’s rights under this Goodwill Protection Agreement,
such action will not be deemed a waiver or discharge of any other remedy.



5. Default by Buyer. If the Buyer defaults in the payment under this Agreement, then the
Sellers’ obligations under this Agreement will immediately terminate without relieving the Buyer of
its payment obligation hereunder. Further, if Buyer defaults under the Promissory Note or the
Security Agreement, each as defined in the Purchase Agreement, then the Sellers’ obligations under
this Agreement will immediately terminate without relieving Buyer of its payment obligation
hereunder.





	6.	 	Miscellaneous. It is further agreed as follows:






	 	6.1.	 	Notices. Except as expressly provided herein, any notice, demand or
communication required or permitted to be given by any provision of this Goodwill
Protection Agreement will be in writing and will be deemed to have been given and
received when delivered personally or by telefacsimile, or on the date following the
day sent by overnight courier, or on the third (3rd) business day after the same is
sent by certified mail, postage and charges prepaid, directed to the following
addresses or to such other or additional addresses as any party might designate by
written notice to the other parties:





	 	 	 	 	 
	 

	 	To the Buyer:
	 	ApothecaryRx, LLC
	 

	 	 	 	C/o Mr. Lewis P. Zeidner, President
	 

	 	 	 	5500 Wayzata Boulevard, Suite 210
	 

	 	 	 	Golden Valley, Minnesota 55416
	 

	 	 	 	Fax: (763) 647-1137






			
	 	 	 
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	 	With a copy to:
	 	Michael Meleen, Esquire
	 

	 	 	 	Commercial Law Group, P.C.
	 

	 	 	 	700 Oklahoma Tower
	 

	 	 	 	210 Park Avenue
	 

	 	 	 	Oklahoma City, Oklahoma 73102
	 

	 	 	 	Fax: (405) 232-5553
	 
	 	 	 	 
	 

	 	To the Sellers:
	 	Edward Fox
	 

	 	 	 	1765 Orchid Ct.
	 

	 	 	 	Highland Park, Illinois 60035
	 

	 	 	 	Fax: (847) 673-2461
	 
	 	 	 	 
	 

	 	 	 	Simpson Gold
	 

	 	 	 	57 E. Delaware #3105
	 

	 	 	 	Chicago, Illinois 60611
	 
	 	 	 	 
	 

	 	 	 	Lawrence Horwitz
	 

	 	 	 	1500 Sheridan Road, #2D
	 

	 	 	 	Wilmette, Illinois 60091
	 
	 	 	 	 
	 

	 	 	 	Steven Feinerman
	 

	 	 	 	800 Croftridge
	 

	 	 	 	Highland Park, Illinois 60035
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Terry L. Engel
	 

	 	 	 	Deutsch, Levy & Engel, Chartered
	 

	 	 	 	225 W. Washington Street, Suite. 1700
	 

	 	 	 	Chicago, Illinois 60606
	 

	 	 	 	Fax: (312) 346-1859







	 	6.2.	 	Severability. If any clause or provision of this Goodwill Protection
Agreement is illegal, invalid or unenforceable under any present or future law, the
remainder of this Goodwill Protection Agreement will not be affected thereby. It is
the intention of the parties that if any such provision is held to be illegal, invalid
or unenforceable, there will be added in lieu thereof a provision as similar in terms
to such provisions as is possible and to be legal, valid and enforceable.
	 
	 	6.3.	 	Entire Agreement. This Goodwill Protection Agreement, together with
the Purchase Agreement and the other instruments executed in connection therewith,
constitute the entire agreement between the parties with respect to the subject matter
hereof and there are no agreements, understandings, warranties or
representations except as set forth herein. Neither this Goodwill Protection
Agreement nor any of the provisions hereof can be changed, waived, discharged or
terminated except by an instrument signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought.





			
	 	 	 
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	 	6.4.	 	Attorneys’ Fees. If any party institutes an action or proceeding
against any other party relating to the provisions of this Goodwill Protection
Agreement, the party to such action or proceeding which does not prevail will reimburse
the prevailing party therein for the reasonable expenses of attorneys’ fees and
disbursements incurred by the prevailing party as determined by Order of the Court.
	 
	 	6.5.	 	Waiver. Waiver of performance of any obligation or term contained in
this Goodwill Protection Agreement by any party, or waiver by one party of the other’s
default hereunder will not operate as a waiver of performance of any other obligation
or term of this Goodwill Protection Agreement or a future waiver of the same obligation
or a waiver of any future default.
	 
	 	6.6.	 	Assignment. The Buyer may assign all or any portion of its rights
hereunder to: (a) any other entity or person which at any time controls or is under
common control with the Buyer, or (b) any entity or person which acquires all or any
portion of the Business.
	 
	 	6.7.	 	Governing Law. This Goodwill Protection Agreement will be interpreted,
construed and enforced in accordance with the laws of the State of Illinois, regardless
of any applicable principles of conflicts of law.
	 
	 	6.8.	 	Consent to Jurisdiction. Any suit, action or other proceeding seeking
to enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in any
court of competent jurisdiction in Chicago, Illinois, or the United States District
Court sitting in Chicago, Illinois, and each of the Parties hereby consents to the
jurisdiction of such courts (and of the related appellate courts) in any such suit,
action or proceeding and irrevocably waives, to the full extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any such
suit, action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or jurisdiction of any such proceeding may be
serviced on Party anywhere in the world, whether within or without the jurisdiction of
any such court.





[Signature Pages Follow]




			
	 	 	 
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SIGNATURE PAGE TO GOODWILL PROTECTION AGREEMENT




     IN WITNESS WHEREOF, this Agreement has been executed by the parties effective the date first
above written.



	 	 	 	 	 
	 

	 	/S/ EDWARD FOX
	 	 
	 

	 	 	 	 
	 

	 	EDWARD FOX, individually	 	 
	 
	 	 	 	 
	 

	 	/S/ SIMPSON GOLD	 	 
	 

	 	 	 	 
	 

	 	SIMPSON GOLD, individually	 	 
	 
	 	 	 	 
	 

	 	/S/ LAWRENCE HORWITZ	 	 
	 

	 	 	 	 
	 

	 	LAWRENCE HORWITZ, individually	 	 
	 
	 	 	 	 
	 

	 	/S/ STEVEN FEINERMAN	 	 
	 

	 	 	 	 
	 

	 	STEVEN FEINERMAN, individually	 	 
	 
	 	 	 	 
	 

	 	(together, the “Sellers”)	 	 






			
	 	 	 
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SIGNATURE PAGE TO GOODWILL PROTECTION AGREEMENT




     IN WITNESS WHEREOF, this Agreement has been executed by the parties effective the date first
above written.



	 	 	 	 	 
	 	APOTHECARYRX, LLC, an Oklahoma limited

liability company

 	 
	 	By  	/S/ LEWIS P. ZEIDNER
 	 
	 	 	Lewis P. Zeidner, President 	 
	 	 	 	 
	 



			
	 	 	 
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