Exhibit 10.8
EXECUTION
COPY
UNIT
PURCHASE AGREEMENT
UNIT PURCHASE
AGREEMENT (this “ Agreement ”), dated as of
October 1, 2007, by and between Benny Salerno (the “
Seller ”) and B.J.K. Inc., a New York corporation
doing business as Chem Rx (the “ Purchaser ”).
Reference is hereby made to that certain operating agreement of
ChemRx/Salerno’s, LLC, a Pennsylvania limited liability
company (the “ Company ”), dated
January 17, 2007, by and among the Purchaser and the Seller
(the “ Operating Agreement ”). All capitalized
terms not otherwise defined herein shall have the meanings set
forth in the Operating Agreement.
WHEREAS, the Seller is the beneficial and
record owner of 882.352 Units representing an 8.82352 Percentage
Interest of the Company and Seller’s entire Interest in the
Company; and
WHEREAS, the Seller desires to sell to the
Purchaser, and the Purchaser is willing to purchase from the
Seller, the Seller’s entire right, title and interest in and
to such 882.352 Units and any other securities of the Company as to
which Seller has any beneficial interest (collectively, the “
Seller’s Interest ”), in accordance with the
terms and conditions set forth herein; and
NOW, THEREFORE, in
consideration of the representations, warranties and agreements
contained herein and for other good and valuable consideration, the
receipt and legal adequacy of which is hereby acknowledged, the
parties agree as follows:
1.
Agreement to Purchase .
(a)
The Purchaser hereby agrees to purchase from the Seller, and the
Seller hereby agrees to sell to the Purchaser, the Seller’s
Interest pursuant to the conditions set forth herein. The purchase
price of the Units being sold to the Purchaser hereunder is
$300,000.00 in the aggregate (the “ Purchase Price
”). The closing under this Agreement shall occur
simultaneously with or following the satisfaction of all conditions
and taking of all other actions set forth in Section 4 of this
Agreement (or, to the extent permitted by Law, waived by the
parties hereto entitled to the benefits thereof) and upon delivery
by facsimile of executed signature pages of this Agreement and
all other documents, instruments and writings required to be
delivered pursuant to this Agreement to the offices of Troutman
Sanders LLP, The Chrysler Building, 405 Lexington Avenue, New York,
NY 10174 (the “ Closing ”) on the date of the
satisfaction of the condition set forth in
Section 4(b)(v) below, or on such other date, and at such
other time or place, as the parties may mutually agree in
writing. The date on which the Closing is actually held is referred
to herein as the “ Closing Date .”
(b)
At the Closing, the Seller shall deliver to the Purchaser either
(a) a Unit certificate endorsed in blank or (b) a duly
executed assignment separate from such certificate, in either case
evidencing the transfer of the Units, dated the date hereof, in
such form satisfactory to the Purchaser as shall be effective
to vest in the Purchaser good and valid title to the Units, free
and clear of any claims, rights of third parties, judgments,
options, calls, contracts, commitments, demands, security
interests, liens, charges or encumbrances whatsoever, except
restrictions imposed on the Units by federal and/or state
securities laws (the foregoing restrictions being herein referred
to as the “ Restrictions ”). The Seller shall at
any time, and from time to time, after the Closing Date, execute,
acknowledge and deliver all further assignments, transfers and
any
other such instruments of conveyance, upon the reasonable request
of the Purchaser, to confirm the sale of the Units
hereunder.
(c)
At the Closing, the Purchaser shall deliver the Purchase Price by
wire transfer of immediately available funds to an account
designated in writing by the Seller at least two business days
prior to the Closing Date.
2.
Representation, Warranty and Covenant of the Purchaser . The
Purchaser represents and warrants to the Seller, and covenants for
the benefit of the Seller, as follows:
(a)
This Agreement constitutes a valid and legally binding agreement
and obligation of the Purchaser enforceable against the Purchaser
in accordance with its terms, subject to limitations on enforcement
by general principles of equity and by bankruptcy or other laws
affecting the enforcement of creditors’ rights generally, and
the Purchaser has full power and authority to execute and deliver
this Agreement and any other agreements and documents contemplated
hereby and to perform its obligations hereunder and
thereunder; and
(b)
In accordance with that certain escrow agreement (the “
Escrow Agreement ”), dated as of January 17,
2007, by and among the Company, Purchaser, Salerno’s
Pharmacy, LLC (“ Salerno’s ”), Seller and
Troutman Sanders LLP (“ Escrow Agent ”), the
Purchaser shall (i) jointly (with Salerno’s and Seller)
sign and deliver to the Escrow Agent a Termination Date Certificate
(as such term is defined in the Escrow Agreement) setting forth
October 15, 2007 or the Closing Date, whichever shall first
occur, as the revised Termination Date (as such term is defined in
the Escrow Agreement) and (ii) on or prior to the revised
Termination Date described in (i) of this Section 2(b),
jointly (with Salerno’s and Seller) sign and deliver
Termination Date Instructions (as such term is defined in the
Escrow Agreement) to the Escrow Agent to deliver the balance of the
Escrow Fund (as such term is defined in the Escrow Agreement) to
Salerno’s, as provided in such written instructions, and, as
part of such Termination Date Instructions, the Purchaser
shall waive its right to deliver a Buyer Objection Notice (as such
term is defined in the Escrow Agreement) pursuant to
Section 4(c) of the Escrow Agreement.
3.
Representations, Warranties and Covenants of the Seller .
The Seller represents and warrants to the Purchaser, and covenants
for the benefit of the Purchaser, as follows:
(a)
This Agreement constitutes a valid and legally binding agreement
and obligation of the Seller enforceable against the Seller in
accordance with its terms, subject to limitations on enforcement by
general principles of equity and by bankruptcy or other laws
affecting the enforcement of creditors’ rights generally, and
the Seller has full power and authority to execute and deliver this
Agreement and any other agreements and documents contemplated
hereby and to perform his obligations hereunder and
thereunder;
(b)
No authorization, approval, filing with, waiver or consent of any
party is required for the sale of the Units to the Purchaser
pursuant to this Agreement;
(c)
The Seller acknowledges that he may have obtained and
may have had access to information, knowledge and data of a
secret or confidential nature concerning the
2
business and financial affairs, financial
forecasts, future capital expenditures, business strategy, clients,
transactions and other proprietary information of the Company
(“ Confidential Information ”). The
Seller acknowledges and agrees that all Confidential Information
is, directly or indirectly, the property of the Company and that
the Seller will not, without the prior written consent of the
Company, disclose to any unauthorized person, or use for his own
account, any Confidential Information except (i) to the extent
necessary to comply with applicable legal process (in which event
the Seller will provide the Company with prompt notice of any
request for such disclosure so that the Company may seek an
appropriate protective order) and (ii) to the extent such
information becomes generally known to and available for use by the
public other than as a result of the Seller’s acts or
omissions to act;
(d)
The Seller has had an opportunity to discuss the Company’s
business, management and financial affairs with direct
|
