EXHIBIT 10.4


 


TRANSITION
AGREEMENT


 


This TRANSITION
AGREEMENT (the “Agreement”) is made effective the 17th day of January, 2008,
among APOTHECARYRX, LLC, an Oklahoma limited liability company (the “Buyer”),
RAMBO PHARMACY, INC., an Illinois corporation (the “Company”) and NORMAN
GREENBERG, an individual (“Greenberg” and together with the Company, the “Seller”).


 


WHEREAS, pursuant
to the Pharmacy Purchase Agreement dated effective January 3, 2007, (the “Purchase
Agreement”) between the Buyer and the Seller, the Buyer purchased the Seller’s
pharmacy business in Decatur, Illinois, known as “Rambo Pharmacy” (the “Business”)
effective on the date hereof; and


 


WHEREAS, the
Seller and the Buyer desire to foster a smooth transition of the Business from
the Seller to the Buyer and, in the interests of facilitating such transition,
the Buyer desires to use the Seller’s Licenses (as hereinafter defined) to
operate the Business for a short period of time after the Closing Date, and the
Seller is willing to allow the Buyer to use the Seller’s Licenses to operate
the Business for a short period of time after the Closing Date, pursuant to the
terms and conditions of this Agreement.


 


NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and agreements hereinafter
set forth, and in consideration of the execution and performance of the
Purchase Agreement, the parties hereto agree as follows:


 


1.           Definitions. Capitalized terms
used and not defined herein shall have the meanings set forth in the Purchase
Agreement.


 


2.           Transition Services. Commencing
at the Time of Transfer and continuing until the termination of this Agreement,
the Buyer shall be entitled to utilize, in connection with its operation of the
Business and in strict accordance with the terms of this Agreement, the following
permits, licenses, registrations, certifications and bank accounts of the
Seller related to the Business (collectively, the “Licenses”):


 


1.              Illinois Pharmacy License;


2.              Illinois Narcotics Registration;


3.              Drug Enforcement Agency
Registration;


4.              National Council for Prescription
Drug Programs Provider Number;


5.              Credit Card Services; and


6.              The Seller’s bank accounts used
for payments from insurance companies, Medicare, Medicaid and credit card
services.


 


To effect the
foregoing authorization, on the Closing Date, the Seller will execute the
Limited Power of Attorney in the form attached at Exhibit “A” authorizing
the Buyer to act on the Seller’s behalf in connection with the Licenses, and
other documents, if any, as may be required or requested by a government
agency, including, without limitation, powers of attorney.


 


3.           Termination of Right to Use
Licenses. The Buyer’s right to use the Licenses will terminate upon the
written notice of either party upon the earlier of: (a) the issuance to
the Buyer of the same types of permits, licenses, registrations or
certifications as the Licenses (the “Required Licenses”); or (b) sixty
(60) days from the Closing Date; provided, in the event that the Buyer has not
obtained the Required Licenses within the required time period, the term of this
Agreement and the Power of Attorney will be extended by twenty (20) days if (i) the
Buyer has not breached and is not in default of the terms of this Agreement,
the Purchase Agreement or any document executed in connection therewith, and (ii) the
Buyer is actively seeking and using best efforts to obtain the Required
Licenses as promptly as possible.


 


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4.           Will Call Prescriptions. The
company performing the Inventory will account for all orders at the Business
for prescriptions placed but not paid for prior to the Time of Transfer (“Will
Call Prescriptions”) and determine the cash amount owed by customers for Will
Call Prescriptions (the “Will Call Receivables”). On the Closing Date, the
Buyer will pay the Seller the amount of the Will Call Receivables. All Will
Call Receivables will be the property of the Buyer. All other receivables from
third parties in connection with the Will Call Prescriptions will be the
property of the Seller subject to paragraph 5 of this Agreement.


 


5.           Third Party Receivables. All
accounts receivable (whether billed or unbilled on the Closing Date) for
prescriptions delivered or picked up prior to the Time of Transfer other than the
Will Call Receivables (the “Seller Receivables”), will be the property of the
Seller. The Buyer will collect the Seller Receivables on behalf of the Seller
and furnish an accounting of all Seller Receivables (reconciled to the
transaction generating such Seller Receivables) to the Seller on a monthly
basis. The Buyer will pay the Seller all collected Seller Receivables on a
weekly basis. The Buyer will conduct the foregoing collection, accounting and
reconciliation at the Buyer’s expense. All accounts receivable generated after
the Time of Transfer will be the property of the Buyer and the Seller agrees to
promptly deliver to the Buyer any such receivables delivered to the Seller.


 


6.           Consulting. During the term of
this Agreement, Greenberg agrees to provide information reasonably requested by
the Buyer regarding the Seller’s and the Business’s operations, arrangements,
policies and similar matters, regardless of whether Greenberg is employed by
the Buyer or the Buyer’s agents or affiliates.


 


7.           Indemnification. The Buyer
shall indemnify and hold harmless the Seller and the Seller’s partners,
employees, agents and affiliated entities (the “Indemnified Parties”) for any
loss, damage, claim, liability, debt, obligation or expense (including
reasonable legal fees and expenses of litigation), whether or not actually
incurred or paid that the Indemnified Parties may suffer, sustain or become
subject to, as a result of: (a) any actions or omissions of the Buyer or any
employees, agents, representatives or other personnel of the Buyer related to
the Business and the Licenses occurring after the Closing Date; or (b) the
parties entering into this Agreement or the Buyer’s use of the Licenses.


 


8.           Entire Agreement. This
Agreement, the Purchase Agreement and the documents executed in connection
therewith constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior communications, representations,
agreements and understandings between the parties hereto, whether oral or
written.


 


9.           Assignment. This Agreement,
and all rights and obligations hereunder, shall not be assignable by any party
in whole or in part.


 


10.         Amendment. This Agreement may be
amended only by written agreement duly executed by representatives of both
parties hereto.


 


11.         Applicable Law. This Agreement
shall be construed in accordance with the laws of the state of Illinois,
disregarding conflicts of laws principles which may require the application of
the laws of another jurisdiction. Venue and jurisdiction over any dispute
arising under this Agreement shall be in the Circuit Court of Macon County,
Illinois.


 


12.         Audit Rights. The Seller shall
have the right, at all times during the term hereof, to monitor, review and
audit at the Seller’s expense the accounts, books, records, documents and procedures
relating to the Buyer’s performance under this Agreement and use of the
Licenses. This paragraph will not modify or supersede the Seller’s access
rights to the books and records of the Business provided in the Purchase
Agreement, which rights will survive the termination of this Agreement.


 


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13.         No Third Party Rights. This
Agreement is not intended and shall not be construed to create any rights in
any parties other than the Seller and the Buyer and no other person shall assert
any rights as a third party beneficiary hereunder.


 


14.         Waivers. Any waiver of rights
hereunder must be set forth in writing. A waiver of any breach or failure to
enforce any of the terms or conditions of this Agreement shall not in any way affect,
limit or waive a party’s rights at any time to enforce strict compliance
thereafter with every term and condition of this Agreement.


 


15.         Independent Contractor. By
executing this Agreement, the parties intend to create an independent
contractor relationship, and nothing contained in this Agreement shall be
construed to make either the Seller or the Buyer a partner, joint venturer,
principal, agent or employee of the other, and neither party shall have any
right, power or authority, express or implied, to bind the other. Notwithstanding
the foregoing, this Agreement does not amend or affect the terms of any other
agreements among the parties that may expressly create any of the foregoing relationships.


 


16.         Severability; Partial Invalidity.
If any provision of this Agreement or portion thereof is held to be
unenforceable or invalid by any court of competent jurisdiction, such provision
or portion thereof shall be deemed amended to conform to applicable law so as
to be valid and enforceable, or if the provision or portion thereof cannot be
so amended without materially altering the parties’ intent, the provision or
portion thereof shall be stricken, and the validity and enforceability of the
remainder of this Agreement shall not be affected thereby.


 


17.         Notices. All notices permitted
or required hereunder shall be given in the manner specified in the Purchase
Agreement.


 


[Signature Pages Follow]


 


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SIGNATURE PAGE TO
TRANSITION AGREEMENT


 


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


 


	
   

  	
  RAMBO PHARMACY,
  INC., an

  
	
   

  	
  Illinois
  corporation

  
	
   

  	
  By /S/NORMAN
  GREENBERG

  
	
   

  	
   

  
	
   

  	
  /S/NORMAN
  GREENBERG

  	
   

  
	
   

  	
  NORMAN
  GREENBERG,

  
	
   

  	
  individually

  
	
   

  	
   

  
	
   

  	
  (together, the
  “Seller”)

  



 


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SIGNATURE PAGE TO
TRANSITION 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

  
	
   

  	
   

  
	
   

  	
  (the “Buyer”)

  



 


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EXHIBIT “A”


 


LIMITED POWER OF
ATTORNEY


 


This LIMITED POWER
OF ATTORNEY (the “Power”) is made effective the 17th day of January, 2008,
among RAMBO PHARMACY, INC., an Illinois corporation (the “Company”), NORMAN
GREENBERG, an individual (“Greenberg” and together with the Company, the “Principal”),
and APOTHECARYRX, LLC, an Oklahoma limited liability company (the “Agent”).


 


WHEREAS, pursuant
to the Pharmacy Purchase Agreement dated effective January 3, 2008, (the “Purchase
Agreement”) between the Principal and the Agent, the Agent purchased the
Principal’s pharmacy business known as “Rambo Pharmacy” located at 144 East Leafland,
Decatur, IL 62521 (the “Business”) effective on the date hereof; and


 


WHEREAS, pursuant
to the Transition Agreement between the Principal and the Agent of even date
herewith (the “Transition Agreement”), the Principal agreed to allow the Agent
to use the Principal’s permits, licenses, registrations, certifications and
bank accounts described at Exhibit “A” attached as a part hereof (the “Licenses”)
in the operation of the Business.


 


NOW THEREFORE, the
Principal hereby nominates, constitutes and appoints the Agent as the Principal’s
attorney-in-fact to take any and all actions in the Principal’s name, place and
stead, to the extent permitted by law, to use the Licenses in connection with
the operation of the Business as follows:


 


1.           Power. The Principal hereby
irrevocably gives and grants to the Agent the full power and authority to use
the Licenses and to perform any actions necessary for the operation of the Business.
This Limited Power of Attorney is a present appointment of the Agent, effective
immediately.


 


2.           Acceptance. The Agent hereby
accepts the Principal’s appointment as the Principal’s attorney-in-fact and
agrees to be bound by the terms and provisions of this Agreement.


 


3.           Termination. This Agreement is
intended to grant the Agent a power of attorney which will be irrevocable and
binding on the Principal until terminated in accordance with paragraph 3 of the
Transition Agreement. The Agent hereby agrees to execute and deliver, on
reasonable request by the Principal, any documents necessary or helpful in
terminating the Agent’s appointment as the Principal’s attorney-in-fact.


 


[Signature Pages Follow]


 


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SIGNATURE PAGE TO
TRANSITION AGREEMENT


 


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


 


	
   

  	
  RAMBO PHARMACY,
  INC., an

  
	
   

  	
  Illinois
  corporation

  
	
   

  	
  By 

  	
  /S/NORMAN
  GREENBERG

  	
   

  
	
   

  	
  (the “Company”

  
	
   

  	
   

  
	
   

  	
  /S/NORMAN
  GREENBERG

  	
   

  
	
   

  	
  NORMAN
  GREENBERG,

  
	
   

  	
  individually

  
	
   

  	
   

  
	
   

  	
  (the “Greenberg”
  or “Principal”)

  
					



 


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SIGNATURE PAGE TO
TRANSITION 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

  
	
   

  	
   

  
	
   

  	
  (the “Agent”)

  



 


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