EXHIBIT
10.2


 


GOODWILL
PROTECTION AGREEMENT


 


                THIS GOODWILL PROTECTION AGREEMENT is made effective
the 29th day of February, 2008, between ApothecaryRx, LLC, an Oklahoma limited
liability company (the “Buyer”), and Thrifty Drug Stores, Inc., a
Minnesota corporation (the “Seller”).


 


W I T N E S S E T
H:


 


                WHEREAS, pursuant to that certain Asset Purchase
Agreement dated February 8, 2008, (the “Purchase Agreement”) among the
Buyer and Seller, the Buyer purchased certain assets of the Seller’s pharmacy
business located in Red Wing, MN (the “Business”) for a sum in excess of
$662,960;


 


                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:


 


1.1           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.


 


1.2           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 fifteen (15) miles of the location of the Business.


 


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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.


 


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 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.             Payments. 
As consideration for the Seller’s execution, delivery and performance of
this Goodwill Protection Agreement, the Buyer agrees to pay to the Seller the
amounts, and on the terms, as set forth in Section 2(b) and Section 3,
respectively, of the Purchase Agreement.


 


4.             Default by Seller.  If the Seller fails 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 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, the
Purchase Agreement or any instrument entered into in connection therewith, 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 


 


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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 its payment obligations under this Agreement,
then the Seller’s obligations under this Agreement, including, without
limitation, the obligations described in Sections 1 and 3 hereof, will
immediately terminate.  Buyer shall be
deemed to be in default under this Agreement if any payment is received more
than ten (10) days after its due date.


 


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 Lewis P. Zeidner,
  President

  
	
   

  	
   

  	
  5500 Wayzata Boulevard,
  Suite 210

  
	
   

  	
   

  	
  Golden Valley, Minnesota
  55416

  
	
   

  	
   

  	
  Fax: (763) 647-1137

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Commercial Law Group,
  P.C.

  
	
   

  	
   

  	
  c/o Michael
  Meleen, Esq.

  
	
   

  	
   

  	
  700 Oklahoma Tower

  
	
   

  	
   

  	
  210 Park Avenue

  
	
   

  	
   

  	
  Oklahoma City, Oklahoma
  73102

  
	
   

  	
   

  	
  Fax: (405) 232-5553

  
	
   

  	
   

  	
   

  
	
  To the Seller:

  	
   

  	
  Thrifty Drug
  Stores, Inc.

  
	
   

  	
   

  	
  c/o Robert J. Narveson,
  President and CEO

  
	
   

  	
   

  	
  6901 East Fish Lake
  Road, Suite 118

  
	
   

  	
   

  	
  Maple Grove, MN 55369

  
	
   

  	
   

  	
  Fax: (763) 513-4347

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Fredrikson &
  Byron, P.A.

  
	
   

  	
   

  	
  c/o Neil A.
  Weikart, Esq.

  
	
   

  	
   

  	
  200 South Sixth Street,
  Suite 4000

  
	
   

  	
   

  	
  Minneapolis, MN 55402

  
	
   

  	
   

  	
  Fax: (612) 492-7077

  



 


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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.


 


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.


 


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
Minnesota, regardless of any applicable principles of conflicts of law.


 


[Signature page follows]


 


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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.


 


	
   

  	
  THRIFTY DRUG STORES,
  INC.

  
	
   

  	
  a Minnesota corporation

  
	
   

  	
   

  
	
   

  	
  By:/S/ROBERT J.
  NARVESON

  
	
   

  	
   

  	
  Robert J. Narveson

  
	
   

  	
  Its:

  	
  President and CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  APOTHECARYRX, LLC

  
	
   

  	
  an Oklahoma limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:/S/LEWIS P. ZEIDNER

  
	
   

  	
   

  	
  Lewis P. Zeidner

  
	
   

  	
  Its:

  	
  President

  



 


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