Exhibit 10.9


 


Fifth
AMENDMENT


TO THE PRIME VENDOR AGREEMENT


___________________________


 


This Fifth Amendment to
the Prime Vendor Agreement (the “Fifth Amendment”) is made and entered into by and between Dougherty's Holdings,
Inc. (“Buyer”) and Cardinal Health 110, LLC and Cardinal Health 112, LLC (collectively referred to herein as
“Cardinal Health”).


 


Recitals


 


WHEREAS,
Cardinal Health and Buyer are parties to that certain Prime Vendor Agreement that was effective as of May 1, 2014 (hereinafter
“Agreement”); and 


 


WHEREAS,
the parties entered into that certain First Amendment to the Agreement that was effective May 1, 2015 (the “First
Amendment”); and


 


WHEREAS,
the parties entered into that certain Second Amendment to the Agreement that was effective July 1, 2015 (the “Second
Amendment”); and


 


WHEREAS,
the parties entered into that certain Third Amendment to the Agreement that was effective October 1, 2015 (the “Third
Amendment”); and


 


WHEREAS, on June 11, 2015 Dougherty's Pharmacy
McAlester, LLC DBA The Medicine Shoppe was added as a Pharmacy to the Agreement; and


 


WHEREAS, on August 21, 2015 Dougherty's Pharmacy
Springtown, LLC was added as a Pharmacy to the Agreement; and


 


WHEREAS,
the parties entered into that certain Fourth Amendment to the Agreement that was effective January 1, 2016 (the “Fourth
Amendment”); and


 


WHEREAS,
Cardinal Health and Buyer desire to amend the Agreement as set forth in this Fifth Amendment. 


 


Statement of Agreement


 


NOW,
THEREFORE, in return for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:


 


1.                                   
Capitalized Terms. All capitalized terms used in this Amendment not otherwise defined herein shall have the same
meaning as is ascribed to them in the Agreement.


 


		2.	Term and Termination. The Term of the Agreement is hereby extended through April 30, 2019.



 


3.       Pricing
Matrix.  The Pricing Matrix set forth in Exhibit B to the Agreement, as replaced in the Second Amendment, is hereby
deleted in its entirety and a new Pricing Matrix is hereby added to the Agreement in the form attached to this Fifth Amendment
as Attachment 1. Furthermore, the parties hereby acknowledge and agree that the revised Pricing Matrix set forth in Attachment
1 to this Fifth Amendment shall be effective for all purchases made by the Buyer under the Agreement on or after the effective
date of this Fifth Amendment.


 


4.       Effectiveness.
To the extent provided herein, this Fifth Amendment supersedes or modifies any inconsistent provision of the Agreement.


 


 


____________________


[***] Indicates portions of
this exhibit have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confident
treatment.







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5.       No
Other Changes. Except as amended by the provisions in this Fifth Amendment, the Agreement shall remain in full force and effect.


 


6.      
Fifth Amendment Effective Date. This Fifth Amendment is effective as of November 1, 2016.


 


7.       Counterparts.
This Fifth Amendment may be executed in counterparts, each of which is deemed to be an original, and together all of which shall
constitute one and the same document.


 


IN WITNESS WHEREOF, the parties
have agreed to the foregoing:


 


 


	Dougherty's Holdings, Inc.	 	Cardinal Health 110, LLC
	16250 Knoll Trail Drive, Suite 102	 	Cardinal Health 112, LLC
	Dallas, TX 75248	 	7000 Cardinal Place
	 	 	Dublin, Ohio 43017
	 	 	 
	Telecopy __________________	 	Telecopy: (614) 757-6000
	 	 	 
	By: /s/ Andrew J. Komuves, Jr.                         	 	By: /s/ Christopher A. Gersitz                 
	Title: President of Pharmacies 	 	Title: Director, Territory Sales, Central Region 
	Date: Nov. 4, 2016 	 	Date: Nov. 4, 2016 
	 	 	 
	Account Number ________________	 	
	 	 	 
	 	 	 





 


 


 


____________________


[***] Indicates portions of
this exhibit have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confident
treatment.







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ATTACHMENT 1


 


Pricing Matrix


 


Purchase Price


 


Subject to Buyer’s
compliance with Section 5 of the Agreement, Buyer will be entitled to purchase branded Rx Products from Cardinal Health (that are
not Specially Priced Merchandise or subject to a Manufacturer Contract) for Buyer’s Pharmacies at a purchase price equal
to Cardinal Health’s Cost minus the applicable percentage set forth in the matrix below:


 


	Average Monthly Net Purchases	Discount

[***]	Discount

[***]	Discount

[***]	Discount

[***]	Discount

[***]
	[***]
	[***]
	[***] 	[***] 	[***] 	[***] 
	[***]
	[***] 	[***] 	[***]
	[***] 	[***] 
	[***] 	[***]
	[***]
	[***] 	[***] 	[***] 
	[***] 	[***] 	[***]
	[***] 	[***] 	[***] 
	[***]
	[***]
	[***]
	[***]
	[***] 	[***]



 


 


At the end of each calendar quarter the Agreement
is in effect, Cardinal Health will evaluate Buyer’s average monthly Net Purchases during the calendar quarter. If Buyer’s
average monthly Net Purchases during the quarter entitles Buyer to purchase branded Rx Products at a lower (or higher) purchase
price according to the foregoing matrix than Buyer was invoiced during the quarter, then prospective adjustments to the invoiced
purchase price will be made beginning as of the first day of the second month following the end of the quarter measured.


 


Buyer’s Purchase Price


 


Based on the Buyer’s
representation that: (i) the Buyer’s aggregate monthly Net Purchases from Cardinal Health under the Agreement shall be at
least [***], and (ii) the Buyer’s Source Compliance (as defined below) shall equal at least [***] , Buyer will be invoiced
at [***] for branded Rx Products that are subject to the Pricing Matrix.


 


Notwithstanding any other
provision in the Agreement, if Buyer's aggregate monthly Net Purchases under the Agreement through the Source Program during a
given calendar quarter, including but not limited to, those generic Rx Products purchased through the Generic Source Program, equals
less than [***] of Buyer's aggregate monthly Net Purchases of Rx Products during the same quarter (the Buyer's "Source
Compliance"), Buyer's purchase price for Branded Rx Products that are subject to the Pricing Matrix set forth above (i.e.
that are not Specially Priced Merchandise or subject to a Manufacturer Contract) shall equal [***]. If Buyer's Source Compliance
equals less than [***] during a given calendar quarter, Buyer's purchase price for Branded Rx Products that are subject to the
Pricing Matrix set forth above (i.e. that are not Specially Priced Merchandise or subject to a Manufacturer Contract) shall equal
[***].


 


Any such Source Compliance adjustment will be effective as of the
first day of the second month following the end of the quarter measured.


 


Exceptions to the Foregoing Pricing



Notwithstanding the foregoing,
as set forth in Section 4 above, the purchase price for Specially Priced Merchandise shall not be based upon Cardinal Health’s
[***] pricing in accordance with this Pricing Matrix, but instead will be net-billed in accordance with the terms and conditions
established by Cardinal Health (including applicable mark-up) for such Merchandise. As also set forth in Section 4 above, the purchase
price of Merchandise that is subject to a Manufacturer Contract will equal Buyer’s contract price for the applicable Merchandise
as set forth in the Manufacturer Contract.


 


 


____________________


[***] Indicates portions of
this exhibit have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confident
treatment.







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Specially Priced Merchandise 


 


Notwithstanding the foregoing, the purchase
price for Specially Priced Merchandise, shall not be based upon the Cardinal Health’s [***] pricing in accordance with the
Pricing Matrix, but instead will be net-billed in accordance with the terms and conditions established by Cardinal Health (including
applicable mark-up) for such Merchandise from time to time; provided, however, that the Buyer’s purchase price for OTC/HBA
Merchandise shall equal [***].


 


GPO Administrative Fees 


 


The pricing specified
in the Pricing Matrix above does not reflect any administrative fees for membership in any group purchasing organization (a “GPO”).
If Buyer or any Pharmacy affiliates with a GPO, the appropriate administrative fee will be added to the percentages specified in
the Pricing Matrix.


 


Monthly Source Rebate


 


In General.  Subject
to the limitations set forth below:


 


Cardinal Health shall pay the Buyer a monthly
rebate (the “Monthly Source Rebate”) based on the Buyer’s retail Pharmacies’ aggregate Net Purchases
of Merchandise through the Source Program during the applicable calendar month, including, but not limited to, those generic Rx
Products purchased through the Generic Source Program. The Monthly Source Rebate shall be calculated by Cardinal Health for each
full calendar month the Agreement is in effect and shall be provided by Cardinal Health to the Buyer, if applicable, within [***]
days after the end of the applicable month via check, EFT, or in the form of a credit memorandum to be used by the Buyer towards
future purchases of Merchandise under the Agreement as mutually agreed upon by the parties. The amount of a given Monthly Source
Rebate shall be determined as follows:


 


If the Buyer’s retail
Pharmacies’ aggregate Net Purchases of Merchandise through the Source Program are less than [***] of [*** (the Buyer’s
“Monthly Source Compliance”), the Buyer’s Monthly Source Rebate shall equal [***] of the Buyer’s
retail Pharmacies’ aggregate Net Purchases through the Source Program during the applicable month.


 


However, if the Buyer’s
retail Pharmacies’ aggregate Net Purchases of Merchandise through the Source Program during the applicable month are [***]
or greater of the Buyer's retail Pharmacies' aggregate Net Purchases of Rx Products from Cardinal Health under the Agreement during
the same month (the Buyer's "Monthly Source Compliance"), the Buyer’s Monthly Source Rebate for the month
shall be determined in accordance with the following table:


 


	Retail Pharmacies' Monthly Net Purchases Through 

the Source Program	Monthly Source Rebate* (As a Percentage of the 

Buyer’s Retail Pharmacies’ Net Purchases through 

the Source Program During the Applicable Month)
	[***]
	[***] 
	[***] 	[***]

	[***] 	[***] 
	[***]
	[***] 
	[***]
	[***] 


 


*Rebate is not cumulative.


 


Limitations. As set forth above, the
parties hereby specifically acknowledge and agree that the following Generic Source Program Products may be excluded from the calculation
of the Monthly Source Rebate: (i) exclusive generic Rx Products, (ii) biogeneric products, and (iii) branded generic Rx Products.


 


Disclosure. The Monthly Source Rebate
constitutes a “discount or other reduction in price,” as such terms are defined under the Medicare/Medicaid Anti-Kickback
Statute, on the applicable products purchased by Buyer under the Agreement. Cardinal Health and Buyer agree to use commercially
reasonable efforts to comply with any and all requirements imposed on sellers and buyers, respectively, under 42 U.S.C. §
1320a 7b(b)(3)(A) and the “safe harbor” regulations regarding discounts or other reductions in price set forth in 42
C.F.R. § 1001.952(h). In this regard, Buyer may have an obligation to accurately report, under any state or federal program
which provides cost or charge based reimbursement for the products or services covered by the Agreement, or as otherwise requested
or required by any governmental agency, the net cost actually paid by Buyer and/or each Pharmacy.


 


 


____________________


[***] Indicates portions of
this exhibit have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confident
treatment.







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Monthly Source Compliance Rebate


 


In General. Subject
to the limitations set forth below, in addition to the Monthly Source Rebate, Cardinal Health shall pay the Buyer an additional
rebate (the “Monthly Source Compliance Rebate”) for any calendar month in which the Buyer’s Monthly Source
Compliance equals at least [***]. The Monthly Source Compliance Rebate shall be calculated by Cardinal Health for each full calendar
month the Agreement is in effect and shall be provided by Cardinal Health to the Buyer, if applicable, within [***] days after
the end of the applicable month via check, EFT, or in the form of a credit memorandum to be used by the Buyer towards future purchases
of Merchandise under the Agreement as mutually agreed upon by the parties. The amount of a given Monthly Source Compliance Rebate
shall be determined in accordance with the following table.


 


	Buyer’s Monthly Source 

Compliance	Monthly Source Compliance Rebate* (As a Percentage of 

the Buyer’s Retail Pharmacies’ Net Purchases through the 

Source Program During the Applicable Month)
	[***] 	[***] 
	[***] 	[***] 


*Rebate is not cumulative.


 


Limitations. As
set forth above, the parties hereby specifically acknowledge and agree that the following Generic Source Program Products may be
excluded from the calculation of the Monthly Source Compliance Rebate: (i) exclusive generic Rx Products, (ii) biogeneric products,
and (iii) branded generic Rx Products.


 


Disclosure. The
Monthly Source Compliance Rebate constitutes a “discount or other reduction in price,” as such terms are defined under
the Medicare/Medicaid Anti-Kickback Statute, on the applicable products purchased by Buyer under the Agreement. Cardinal Health
and Buyer agree to use commercially reasonable efforts to comply with any and all requirements imposed on sellers and buyers, respectively,
under 42 U.S.C. § 1320a 7b(b)(3)(A) and the “safe harbor” regulations regarding discounts or other reductions
in price set forth in 42 C.F.R. § 1001.952(h). In this regard, Buyer may have an obligation to accurately report, under any
state or federal program which provides cost or charge based reimbursement for the products or services covered by the Agreement,
or as otherwise requested or required by any governmental agency, the net cost actually paid by Buyer and/or each Pharmacy.


 


Leader Brand Product Rebate


 


In General. If
Buyer's aggregate Net Purchases of Leader Brand products by all Pharmacy locations equals at least [***] during a given calendar
quarter, Cardinal Health shall pay Buyer a rebate (the "Leader Brand Product Rebate") based on Buyer's aggregate
Net Purchases of Leader Brand products during the applicable calendar quarter by all Pharmacy locations. The Leader Brand Product
Rebate shall be calculated by Cardinal Health for each full calendar quarter the Agreement is in effect and shall be provided by
Cardinal Health to Buyer, if applicable, within [***] days after the end of the applicable quarter in the form of a credit memorandum
to be used by Buyer towards future purchases of Merchandise under the Agreement. The amount of a given Leader Brand Product Rebate
shall be determined in accordance with the following table:


 


	Quarterly Net Purchases of Leader 

Brand Products	Leader Brand Product Rebate* (As a % of 

Buyer's Aggregate Net Purchases of Leader

 Brand Product Purchases During the Quarter)
	[***]
	[***]

	[***]
	[***]

	[***]
	[***]



 


*Rebate is not cumulative.


 


 


____________________


[***] Indicates portions of
this exhibit have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confident
treatment.







    	 	5	 



     


    

 


Disclosure. The
Leader Brand Product Rebate constitutes a “discount or other reduction in price,” as such terms are defined under the
Medicare/Medicaid Anti-Kickback Statute, on the applicable products purchased by Buyer under the Agreement. Cardinal Health and
Buyer agree to use commercially reasonable efforts to comply with any and all requirements imposed on sellers and buyers, respectively,
under 42 U.S.C. § 1320a 7b(b)(3)(A) and the “safe harbor” regulations regarding discounts or other reductions
in price set forth in 42 C.F.R. § 1001.952(h). In this regard, Buyer may have an obligation to accurately report, under any
state or federal program which provides cost or charge based reimbursement for the products or services covered by the Agreement,
or as otherwise requested or required by any governmental agency, the net cost actually paid by Buyer and/or each Pharmacy.


 


One Time Rebate


 


Provided that the Buyer’s
aggregate Net Purchases of Merchandise through the Source Program under the Agreement equals at least [***] from the period beginning
November 1, 2016 through November 30, 2016, Cardinal Health shall pay the Buyer a rebate on such purchases in the amount of [***]
(the “One Time Rebate”). As applicable, Cardinal Health shall pay the One Time Rebate to the Buyer within [***]
days after November 30, 2016, in the form of a check, EFT, or in the form of a credit memorandum to be used by the Buyer towards
future purchases of Merchandise under the Agreement as mutually agreed upon by the parties.


 


The One Time Rebate constitutes
a "discount or other reduction in price," as such terms are defined under the Medicare/Medicaid Anti-Kickback Statute,
on the applicable products purchased by the Buyer under the Agreement from November 1, 2016 through November 30, 2016. Cardinal
Health and the Buyer agree to use commercially reasonable efforts to comply with any and all requirements imposed on sellers and
buyers, respectively, under 42 U.S.C. § 1320a-7b(b)(3)(A) and the "safe harbor" regulations regarding discounts
or other reductions in price set forth in 42 C.F.R. § 1001.952(h)). In this regard, the Buyer may have an obligation to accurately
report, under any state or federal program which provides cost or charge based reimbursement for the products or services covered
by the Agreement, or as otherwise requested or required by any governmental agency, the net cost actually paid by the Buyer.


 


January 2017 Prepayment of a Portion of
the Monthly Source Rebate and the Monthly Source Compliance Rebate


 


In General. 
Notwithstanding the foregoing, as set forth in the Third Amendment to the Agreement, the parties hereby acknowledge and agree that
Cardinal Health shall prepay to the Buyer a portion of the Monthly Source Rebate and the Monthly Source Compliance Rebate that
Buyer can earn under the provisions set forth the Agreement (the “January 2017 Monthly Source Rebate and the Monthly Source
Compliance Rebate Prepayment”).  The amount of the January 2017 Monthly Source Rebate and the Monthly Source Compliance
Rebate Prepayment shall equal [***], and Cardinal Health shall pay the January 2017 Monthly Source Rebate and the Monthly Source
Compliance Rebate Prepayment to the Buyer within [***] days after December 31, 2016 via check, EFT, or in the form of a credit
memorandum to be used by the Buyer towards future purchases of Merchandise under the Agreement as mutually agreed upon by the parties. 
Further notwithstanding the foregoing, the parties hereby acknowledge and agree that Cardinal Health SHALL NOT pay the Buyer
any portion of a Monthly Source Rebate or any portion of a Monthly Source Compliance Rebate earned by Buyer in accordance with
the provisions set forth the Agreement until such time as the aggregate amount of the Monthly Source Rebate and the Monthly Source
Compliance Rebate earned by the Buyer in accordance with the provisions set forth in the Agreement equals [***].  Once the
aggregate amount of the Monthly Source Rebate and the Monthly Source Compliance Rebate earned by the Buyer in accordance with the
provisions set forth in the Agreement equals [***], Cardinal Health shall begin to pay the Buyer the Monthly Source Rebate and
the Monthly Source Compliance Rebate in accordance with the provisions set forth in the Agreement. 


 


The parties hereby acknowledge
and agree that if the Agreement is terminated for any reason prior to that certain date upon which the aggregate amount of the
January 2017 Monthly Source Rebate and the Monthly Source Compliance Rebate Prepayment earned by the Buyer in accordance with the
provisions set forth above equals [***], the Buyer shall repay to Cardinal Health the unearned portion of the January 2017 Monthly
Source Rebate and the Monthly Source Compliance Rebate Prepayment, which amount shall equal the difference between [***] and the
aggregate amount of the Monthly Source Rebate and Monthly Source Compliance Rebate earned by the Buyer in accordance with the provisions
set forth in the Agreement through the effective date of the termination. 


 


Disclosure. 
The January 2017 Monthly Source Rebate and the Monthly Source Compliance Rebate Prepayment constitutes a “discount or other
reduction in price,” as such terms are defined under the Medicare/Medicaid Anti-Kickback Statute, on the applicable products
purchased by Buyer under the Agreement.  Cardinal Health and Buyer agree to use commercially reasonable efforts to comply
with any and all requirements imposed on sellers and buyers, respectively, under 42 U.S.C. § 1320a-7b(b)(3)(A) and the “safe
harbor” regulations regarding discounts or other reductions in price set forth in 42 C.F.R. § 1001.952(h).  In
this regard, Buyer may have an obligation to accurately report, under any state or federal program which provides cost or charge
based reimbursement for the products or services covered by the Agreement, or as otherwise requested or required by any governmental
agency, the net cost actually paid by Buyer and/or each Pharmacy.


 


 


____________________


[***] Indicates portions of
this exhibit have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confident
treatment.







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January 2018 Prepayment of a Portion
of the Monthly Source Rebate and the Monthly Source Compliance Rebate


 


In General. 
Notwithstanding the foregoing, the parties hereby acknowledge and agree that Cardinal Health shall prepay to the Buyer a portion
of the Monthly Source Rebate and the Monthly Source Compliance Rebate that Buyer can earn under the provisions set forth the Agreement
(the “January 2018 Monthly Source Rebate and the Monthly Source Compliance Rebate Prepayment”).  The amount
of the January 2018 Monthly Source Rebate and the Monthly Source Compliance Rebate Prepayment shall equal [***], and Cardinal Health
shall pay the January 2018 Monthly Source Rebate and the Monthly Source Compliance Rebate Prepayment to the Buyer within [***]
days after December 31, 2017 via check, EFT, or in the form of a credit memorandum to be used by the Buyer towards future purchases
of Merchandise under the Agreement as mutually agreed upon by the parties.  Further notwithstanding the foregoing, the parties
hereby acknowledge and agree that Cardinal Health SHALL NOT pay the Buyer any portion of a Monthly Source Rebate or any
portion of an Monthly Source Compliance Rebate earned by Buyer in accordance with the provisions set forth the Agreement until
such time as the aggregate amount of the Monthly Source Rebate and the Monthly Source Compliance Rebate earned by the Buyer in
accordance with the provisions set forth in the Agreement equals [***].  Once the aggregate amount of the Monthly Source Rebate
and the Monthly Source Compliance Rebate earned by the Buyer in accordance with the provisions set forth in the Agreement equals
[***], Cardinal Health shall begin to pay the Buyer the Monthly Source Rebate and the Monthly Source Compliance Rebate in accordance
with the provisions set forth in the Agreement. 


 


The parties hereby acknowledge
and agree that if the Agreement is terminated for any reason prior to that certain date upon which the aggregate amount of the
January 2018 Monthly Source Rebate and the Monthly Source Compliance Rebate Prepayment earned by the Buyer in accordance with the
provisions set forth above equals [***], the Buyer shall repay to Cardinal Health the unearned portion of the January 2018 Monthly
Source Rebate and the Monthly Source Compliance Rebate Prepayment, which amount shall equal the difference between [***] and the
aggregate amount of the Monthly Source Rebate and Monthly Source Compliance Rebate earned by the Buyer in accordance with the provisions
set forth in the Agreement through the effective date of the termination. 


 


Disclosure. 
The January 2018 Monthly Source Rebate and the Monthly Source Compliance Rebate Prepayment constitutes a “discount or other
reduction in price,” as such terms are defined under the Medicare/Medicaid Anti-Kickback Statute, on the applicable products
purchased by Buyer under the Agreement. Cardinal Health and Buyer agree to use commercially reasonable efforts to comply
with any and all requirements imposed on sellers and buyers, respectively, under 42 U.S.C. § 1320a-7b(b)(3)(A) and the “safe
harbor” regulations regarding discounts or other reductions in price set forth in 42 C.F.R. § 1001.952(h). In
this regard, Buyer may have an obligation to accurately report, under any state or federal program which provides cost or charge
based reimbursement for the products or services covered by the Agreement, or as otherwise requested or required by any governmental
agency, the net cost actually paid by Buyer and/or each Pharmacy.


 




 


 


 


 


 


 


____________________


[***] Indicates portions of
this exhibit have been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confident
treatment.







    	 	7