GOODWILL PROTECTION AGREEMENT
EXHIBIT 10.2
THIS GOODWILL PROTECTION AGREEMENT is made effective the 17th day of January, 2008, between APOTHECARYRX, LLC, an Oklahoma limited liability company (the “Buyer”) and XXXXXX XXXXXXXXX, an individual (the “Seller”).
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, 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.
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.
6. Miscellaneous. It is further agreed as follows:
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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: |
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ApothecaryRx, LLC |
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C/o Xx. Xxxxx X. Xxxxxxx, President |
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0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000 |
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Xxxxxx Xxxxxx, Xxxxxxxxx 00000 |
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Fax: (000) 000-0000 |
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With a copy to: |
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Xxxxxxx Xxxxxx, Esquire |
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Commercial Law Group, P.C. |
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700 Oklahoma Tower |
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000 Xxxx Xxxxxx |
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Xxxxxxxx Xxxx, Xxxxxxxx 00000 |
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Fax: (000) 000-0000 |
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To the Seller: |
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Xx. Xxxxxx Xxxxxxxxx |
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000 Xxxx Xxxxx Xxxxx Xxxxx |
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Xxxxxxx, Xxxxxxxx 00000 |
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With a copy to: |
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Xxxxxx X. Xxxxx, Esquire |
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000 X. Xxxxx Xx. Xxxxx 000 |
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Xxxxxxx, Xxxxxxxx 00000 |
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Fax: (000) 000-0000 |
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
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/S/XXXXXX XXXXXXXXX |
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XXXXXX XXXXXXXXX, individually |
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(the “Seller”) |
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SIGNATURE PAGE TO GOODWILL PROTECTION AGREEMENT
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APOTHECARYRX, LLC, an |
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Oklahoma limited liability company |
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By |
/S/XXXXX X. XXXXXXX |
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Xxxxx X. Xxxxxxx, President |
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