Exhibit 10.9
SECOND AMENDMENT
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THIS SECOND AMENDMENT ("Amendment") is made effective as of September 23, 1998
("Amendment Effective Date") by and between Automated Prescription Systems, Inc.
("APS") and SI Handling Systems, Inc. ("SI") to that certain Investment
Agreement between SI and APS dated January 27, 1993 and amended January 28, 1995
(as amended, the "Investment Agreement"), in agreement with SI/▇▇▇▇▇, Inc.
("SI/▇▇▇▇▇"), which is hereby made a party to the Investment Agreement as of the
Amendment Effective Date.
1. Market Definition. Notwithstanding anything to the contrary in the
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Investment Agreement, SI/▇▇▇▇▇'▇ permitted market for distributing
Integrated Prescription Fulfillment Systems ("IPFS"), as defined below,
will not include the APS Exclusive Market, also defined below. SI/▇▇▇▇▇
agrees not to sell IPFS or resell APS products in the APS Exclusive Market,
except as noted in paragraphs 1(c) and 1(d) below, during any period in
which APS is subject to the restrictions set forth in Sections 5 and 6 of
the Investment Agreement. Further, for purposes of the Investment
Agreement, the "managed care pharmacy market" shall have the meaning set
forth in paragraph (c) below.
(a) "Integrated Prescription Fulfillment Systems" or "IPFS" means
pharmaceutical dispensing systems similar to the systems marketed by
SI/▇▇▇▇▇ or currently under development by SI/▇▇▇▇▇ as of the
Amendment Effective Date (as identified on Schedule 1(a)) that utilize
and integrate SI's handling products or similar products and APS's
drug dispensing products or similar products. For all purposes of the
Investment Agreement, the term "integrated prescription fulfillment
systems" will be deemed to have the foregoing definition.
(b) "APS Exclusive Market" means facilities for dispensing prescription
pharmaceuticals that deliver prescriptions at such facilities to
walk-in customers, regardless of prescription volume.
(c) The "Managed Care Pharmacy Market" means facilities, systems or
systems upgrades where IPFS are installed or proposed to be installed
that are designed for, or intended to be used for, distributing 1500
prescriptions or more per day to non-walk-in customers, including such
facilities that also deliver prescriptions to walk-in customers.
(d) SI/▇▇▇▇▇ will be permitted to market the "Automated Will Call" product
into the APS Exclusive Market.
2. Technology Rights and Obligations.
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(a) Past Technology Contributions. Subject to the following sentence,
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any technology or know-how delivered by APS or SI to SI/▇▇▇▇▇
prior to the Amendment Effective Date will be deemed to be
licensed to SI/▇▇▇▇▇ under a grant of perpetual, worldwide
fully-paid and royalty free terms for the sole purpose of
developing, having developed, manufacturing, having manufactured
and distributing IPFSs that incorporate products proprietary to
the licensor party. Any license of technology or know-how
described in this Section 2(a) shall
be terminated upon the occurrence of the dissolution of SI/▇▇▇▇▇ or
SI/▇▇▇▇▇'▇ ceasing to conduct business.
(b) Future Technology Contributions. Any future contribution or
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license of technology by the parties shall be made under a
written license agreement that references this section or is
otherwise void. For purposes of certainty, the respective parents
of APS or SI, or the subsidiaries of such parents (other than APS
or SI) shall not be obligated to grant any future licenses to
their respective proprietary technologies, provided that the
foregoing shall not apply to any such parent or subsidiary to the
extent that APS or SI has transferred technology or development
efforts with respect to such technology to such parent or
subsidiary with the intent of impairing or derogating from the
rights of the parties and/or SI/▇▇▇▇▇ under the Investment
Agreement.
(c) Joint Technology Development. If 2 or more of the parties jointly
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develop any technology, only to the extent jointly developed, the
technology will be deemed to be owned by SI/▇▇▇▇▇ and licensed to
the joint developing part(ies). However, any such jointly
developed technology must be identified in writing with
reasonable detail. Any such jointly developed technology licensed
to APS or SI will not include any pre-existing or independently
developed technology of a party (even if it is required to make
use of the jointly developed technology). The parties will
cooperate to document the foregoing ownership and licenses.
3. Supply Agreement. Any rights and obligations the parties may have
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to provide preferential prices to one another will terminate upon
the occurrence of any of the following events: (i) the purchase
by SI or APS of the other party's entire interest in SI/▇▇▇▇▇;
(ii) SI/▇▇▇▇▇ ceasing to conduct business in the ordinary course;
or (iii) the dissolution of SI/▇▇▇▇▇. In the event either party
transfers its interest in SI/▇▇▇▇▇ to a third party, such rights
and obligations will terminate upon (i) the termination date set
forth in the supply agreement or other document setting forth
such rights and obligations, or (ii) if no such terminate date is
set forth in such document, the date of such transfer of
interest. Notwithstanding the termination of such rights, either
party may, however, offer to sell its products and services to
SI/▇▇▇▇▇ on mutually acceptable terms and conditions.
4. Exercise Put/Call Option. In order for APS or SI to initiate a purchase
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or sale of the initiating party's interest in SI/▇▇▇▇▇ under Section
3(C) of the Investment Agreement, triggering the provision in such
section for response, the initiating party must give written notice to
the other party expressly referencing such section and setting forth
the specific information required to be noticed under such section.
AGREED AS OF THE AMENDMENT EFFECTIVE DATE FIRST SET FORTH
ABOVE:
AUTOMATED PRESCRIPTION SI/▇▇▇▇▇, INC. ("SI/▇▇▇▇▇")
SYSTEMS, INC. ("APS")
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Title: CEO Print Title: President and CEO
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SI HANDLING SYSTEMS, INC. ("SI")
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Print Title: President
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