EXHIBIT 10.2


 


GOODWILL PROTECTION AGREEMENT


 


THIS GOODWILL PROTECTION AGREEMENT is made effective the 17th day of
January, 2008, between APOTHECARYRX, LLC, an Oklahoma limited liability company
(the “Buyer”) and NORMAN GREENBERG, an individual (the “Seller”).


 


W I T N E S S E T H:


 


WHEREAS, pursuant to that certain Pharmacy Purchase Agreement dated
effective January 3, 2008, (the “Purchase Agreement”) among the Buyer, the
Seller and Rambo Pharmacy, Inc. (“Rambo”), the Buyer purchased the Seller’s
pharmacy business located in Decatur, Illinois (the “Business”) for a sum in
excess of Two Million Two Hundred Thousand Dollars ($2,200,000.00);


 


WHEREAS, the Seller has operated the Business for numerous years during
which time the Seller has built a strong patronage which is the predicate on
which the Seller’s 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 Seller has
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
Seller agrees as follows:


 


1.                For the five (5) year
period beginning on the date of this Goodwill Protection Agreement, the Seller
agrees that the Seller, the Seller’s 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.


 


2.                For the five (5) year
period beginning on the date of this Goodwill Protection Agreement, the Seller
agrees that the Seller, the Seller’s parents, subsidiaries, affiliates and
shareholders and any person receiving a portion of the Purchase Price under the
Purchase Agreement will not, directly or indirectly, conduct any Pharmacy
Business within twenty (20) miles of the 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.  The Seller’s employment with the Buyer will
not violate the terms 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 Seller expressly agrees 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 


 


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Seller 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 Seller 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 Seller’s execution, delivery and performance of this Goodwill Protection
Agreement, the Buyer agrees to pay to the Seller the principal amount of
$220,000.00 together with interest at the rate of 7% per annum computed from
the date of this Agreement, in sixty (60) monthly blended payments of principal
and interest, each in the amount of $4,351.76. 
The monthly payments will commence on February 1, 2008, and be made
on the 1st day of each month thereafter through and including January 1,
2013.  Each such payment will be sent by
regular mail to the addresses provided under Paragraph 6.1 of this Goodwill
Protection Agreement.  Any payment not
received by the Seller within five (5) business days after it is due will
accrue a late fee equal to 5% of the amount of such payment which late fee
shall be payable by the Buyer with the next payment.  The Buyer will have the right to prepay all
amounts due under this Goodwill Protection Agreement in whole or in part at any
time without premium or penalty, but with interest on the unpaid principal
balance accrued to the date of prepayment.  In the event of the death of the Seller, all
remaining payments will be made to the Seller’s estate.


 


4.           Default by
Seller.  If the Seller fails to perform
any obligation contained in this Goodwill Protection Agreement, the Buyer will
serve written notice to the Seller 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 Seller 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 Seller 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 Seller 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 Seller is 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 Seller’s obligations under this
Agreement will immediately terminate. If the Buyer fails to perform any
obligation of the Buyer contained in this Goodwill Protection Agreement or if
the Buyer defaults under the Security Agreement of even date herewith between
the Buyer and Rambo, and such default continues for five (5) business days
after the Buyer receives notice of default from the Seller, the unpaid balance
due will become immediately due and payable in full with interest at 7% until
paid and the Seller may exercise any and all available remedies it may have to
collect the balance due.


 


6.           Miscellaneous.  It is further agreed as follows:


 


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 


 


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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

  
	
   

  	
   

  	
   

  
	
  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 Seller:

  	
   

  	
  Mr. Norman Greenberg

  
	
   

  	
   

  	
  140 East Court Manor Place

  
	
   

  	
   

  	
  Decatur, Illinois 62522

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Thomas M. Shade, Esquire

  
	
   

  	
   

  	
  132 S. Water St. Suite 515

  
	
   

  	
   

  	
  Decatur, Illinois 62523

  
	
   

  	
   

  	
  Fax: (217) 428-0905

  



 


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.


 


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.


 


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.


 


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.                Assignment.  The Buyer may assign all or any portion of
its rights hereunder to:


 


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(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 but without release of the Buyer’s
liability hereunder for payment.


 


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. Venue
and jurisdiction shall be vested in the Circuit Court of Macon County,
Illinois, or the Federal Court having jurisdiction in Macon County, Illinois,
in the event of any dispute under this Agreement.


 


[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/NORMAN GREENBERG

  	
   

  
	
   

  	
  NORMAN GREENBERG, individually

  
	
   

  	
  (the “Seller”)

  



 


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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/LEWIL P. ZEIDNER

  	
   

  
	
   

  	
  Lewis P. Zeidner, President

  



 


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