Exhibit
10.36


 


CERTAIN MATERIAL (INDICATED BY
THREE ASTERISKS) HAS BEEN OMITTED FROM THIS DOCUMENT PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT.  THE OMITTED
MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.


 


AMENDMENT NO. 3


TO


SALES REPRESENTATIVE AGREEMENT


 


This Amendment No. 3 to Sales Representative
Agreement is made and entered into effective as of September 15, 2003 by
and between OrthoLogic Corp., a Delaware corporation, with its principal place
of business at 1275 West Washington Street, Tempe, AZ 85281 (“OrthoLogic”), and
DePuy AcroMed, Inc., an Ohio corporation, with its principal place of business
at 325 Paramount Drive, Raynham, MA 02767 (“DePuy AcroMed”).


 


WHEREAS, OrthoLogic and DePuy AcroMed are
parties to a Sales Representative Agreement, dated August 18, 2000, as
amended on August 1, 2001 and March 1, 2002  (as amended, the “Agreement”), under which OrthoLogic appointed
DePuy AcroMed as its exclusive sales representative to sell OrthoLogic’s
SpinaLogic bone growth stimulation product, as set forth in Section 1.8 of
the Agreement;


 


WHEREAS, the Parties wish to alter their
obligations under the Agreement so that OrthoLogic will be responsible for
following up with prescribing physicians to obtain certain supporting
documentation needed for sales of the Products;


 


WHEREAS, the Parties wish to change the
commission rate to be paid to DePuy AcroMed on the sales of Products to reflect
the decrease in the obligations of DePuy AcroMed under the Agreement.


 


NOW, THEREFORE, in consideration of the
foregoing premises and the following mutual covenants, the adequacy and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:


 


1.                                       Capitalized
terms used herein without definition shall have the meanings set forth in the
Agreement.


 


2.                                       Section 5.2
of the Agreement is hereby amended by adding the following language after the
first sentence:


 


In addition, from and after January 1,
2004, OrthoLogic will be responsible for obtaining the necessary supporting
documents for billing as provided in Section 8.1 hereof.


 


3.                                       The first
sentence of Section 5.6 of the Agreement is amended and restated to read
in its entirety as follows:


 


OrthoLogic shall maintain adequate and
competent personnel to manufacture, store and deliver, obtain supporting
documents as provided in Section 8.1 hereof, perform patient fitting, and
prepare invoices and any other manufacturer-generated materials necessary to
enable OrthoLogic to


 

















 


invoice purchasers and third-party payers in
connection with the sale of Products, and such manufacture, storage, sales,
collection of supporting documents, delivery, patient fitting and invoices
shall be undertaken and effected in a manner that does not violate any
applicable federal, state or foreign laws and regulations, and otherwise, in a
manner that is in accordance with the provisions of OrthoLogic’s Corporate
Compliance Program.


 


4.                                       The first
sentence of Section 6.9 of the Agreement is hereby amended and restated,
effective January 1, 2004, to read in its entirety as follows:


 


DePuy AcroMed or its employees and
Distributors shall provide from the treating physician or direct the treating
physician or the physician’s staff to provide directly to OrthoLogic a written
prescription order form for the purchase of the Products.


 


5.                                       Section 8.1
of the Agreement is hereby amended and restated, effective January 1,
2004, to read in its entirety as follows:


 


OrthoLogic shall be responsible for
processing all U.S. orders for Products once a valid prescription order form is
obtained from a physician by DePuy AcroMed. 
This processing by OrthoLogic includes commercially reasonable efforts
to obtain all necessary supporting documents, the prior authorization of the
prescription with the patient’s insurance company and the generation of any
additional paperwork required to process the prescription for payment.


 


In addition, there is added at the end of Section 8.1 the
following language:


 


It is understood that from time to time
OrthoLogic may elect to employ one or more independent contractors to perform
portions of its obligations under this Agreement as deemed appropriate by
OrthoLogic, including any required follow up with prescribing physicians to
obtain supporting documents, and that such independent contractors shall be
acting solely on behalf of OrthoLogic when obtaining such supporting documents
even though such independent contractors may be persons or entities with which
or whom DePuy also has an independent contractor relationship, including
Distributors.


 


6.                                       Section 12.2
of the Agreement is hereby amended and restated to read in its entirety as
follows:


 


Subject to the last sentence of this
Section 12.2 and to Section 12.2.1, OrthoLogic will pay to DePuy
AcroMed the commissions at the rates set forth below on sales of Products
during the indicated periods:


 


2

















 


	
  Period

  	
   

  	
  Commission, as a

  percentage of Net Sales

  Price, for all sales up to

  and including the

  applicable annual Sales

  Quota

  	
   

  	
  Commission, as a

  percentage of Net Sales

  Price, for all sales during a

  year in excess of the

  applicable annual Sales

  Quota

  
	
  Effective date of this Amendment No. 3
  through September 30, 2003

  	
   

  	
  ***%

  	
   

  	
  ***%

  
	
  October 1, 2003 through
  December 31, 2003

  	
   

  	
  ***%

  	
   

  	
  ***%

  
	
  From and after January 1, 2004

  	
   

  	
  ***%

  	
   

  	
  ***%

  



 


***.


 


Section 12.2.1 shall remain in effect without change.


 


7.                                       Section 14.1
of the Agreement is amended by deleting “or” after clause (f) and by adding the
following language to the end of the Section:


 


; or (h) to the extent arising from the
action of any independent contractor of OrthoLogic, who or which also is an
independent contractor of DePuy AcroMed, in the course of performing services
on behalf of OrthoLogic in connection with this Agreement, provided that the
indemnity in this clause (h) shall not apply to any Damages arising from any
action or inaction of an independent contractor of DePuy AcroMed in the course
of performing services on behalf of DePuy AcroMed or pursuant to any agreement
with DePuy AcroMed.


 


8.                                       Section  20.3
of the Agreement is amended by deleting the notice copy address for
OrthoLogic’s counsel and adding the following language:


 


	
  with a copy to:

  	
   

  	
  Quarles & Brady LLP

  
	
   

  	
   

  	
  Two North Central Avenue

  
	
   

  	
   

  	
  Phoenix, Arizona 85004

  
	
   

  	
   

  	
  Attention: 
  Steven P. Emerick

  
	
   

  	
   

  	
  Facsimile No.  602-417-2980

  



 












***Certain information on this
page has been filed separately with the Securities and Exchange
Commission.  Confidential treatment has
been requested with respect to the omitted portions.


 


3

















 


9.                                       Except as
amended hereby, all provisions and terms of the Agreement shall remain in full
force and effect.


 


	
  ORTHOLOGIC CORP.

  	
  DEPUY ACROMED, INC.

  
	
   

  	
   

  
	
  Name:

  	
  (signature illegible)

  	
   

  	
  Name:

  	
  (signature illegible)

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  Senior Vice President

  	
   

  	
  Title:

  	
  VP, Sales

  	
   

  
	
   

  	
   

  
	
  Date:

  	
  9/15/03

  	
   

  	
  Date:

  	
  9/16/03

  	
   

  
												



 


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