**Exhibit10.37**

 

**AMENDMENT NO. 1 TO**

 

**VITALIMAGES, INC.**

**AND**

**TOSHIBACORPORATION**

 

**MARKETINGAND DISTRIBUTION AGREEMENT**

 

**THIS AMENDMENT NO. 1 TO MARKETING AND DISTRIBUTION AGREEMENT** (the“Amendment”), is made and entered into this 9th day of January, 2003by and between Vital Images, Inc., a Minnesota corporation having its principalplace of business at 3300 Fernbrook Lane N., Suite 200, Plymouth, Minnesota55447 USA (“Vital Images”) and Toshiba Corporation, Medical Systems Company,having its place of business at 1385, Shimoishigami, Otawara-Shi, Tochigi324-8550, Japan (“Toshiba”).

 

RECITALS:

 

**WHEREAS,**Vital Images and Toshibapreviously executed that certain Marketing and Distribution Agreement (the“Agreement”) dated January 21, 2002, and effective October 1, 2001; and

 

**WHEREAS,**Section 14.1 of the Agreement provides that the term of theAgreement would expire on September 30, 2002; and

 

**WHEREAS,**Vital Images and****Toshibanow desire to extend the term of the Agreement to September 30, 2003 and amendcertain terms of the Agreement effective October 1, 2002 as set forth below.

 

AGREEMENT:

 

**NOW, THEREFORE,** in consideration of thepremises and the mutual covenants and agreements hereinafter contained andother good and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, the parties agree as follows:

 

1.             Article1 of the Agreement is hereby amended by adding new Sections 1.8 and 1.9, suchnew sections to read as follows:

 

1.8                                 First Level Installation. “First Level Installation” shallmean unloading, assembling and powering up the applicable computerworkstation(s) sourced from a third party, installing the Products onto suchcomputer workstation(s) and integrating such computer workstation(s) onto thecustomer’s computer network.

 

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1.9                                 Second Level Installation. “Second Level Installation” shall mean working with the customer andnon-Toshiba OEM’s to link non-Toshiba equipment to the computer workstation(s)on which the Products have been installed.

 

2.             Section1.2 of the Agreement is hereby amended by deleting the first sentence of saidSection 1.2 and replacing it with the following:

 

“First LevelMaintenance” shall mean electronic or telephone response, or on-sitemaintenance, to deal with any problem or software bug in the Product which isprovided by Toshiba or the Dealer Associates to customers in the Territory whohave installed the Products that are under Vital Images’ standard warranty orstandard software maintenance program. Only in the U.S., First Level Maintenance shall not include any on-sitemaintenance provided by Toshiba or the Dealer Associates.

 

3.             Section3.1(b) of the Agreement is hereby amended by deleting said Section 3.1(b) andreplacing it with the following:

 

(b)           To perform the First LevelInstallation for customers in the Territory with respect to the Products, andto ensure that only authorized versions of the Products are installed assupplied by Vital Images for customers in the Territory.

 

4.             Section3.1(c) of the Agreement is hereby amended by deleting said Section 3.1(c) andreplacing it with the following:

 

(c)           To promptly respond to all inquiriesor complaints from customers; to provide all necessary and appropriate FirstLevel Maintenance; and to cooperate with Vital Images in the provision of the SecondLevel Maintenance.

 

5.             Section3.1(f) of the Agreement is hereby amended by deleting said Section 3.1(f) andreplacing it with the following:

 

(f)            To maintain an adequately trained andstaffed sales and technical support group for the marketing and distribution ofthe Products, and for the First Level Installation and First Level Maintenance.

 

6.             Section3.6 of the Agreement is hereby amended by adding to the end of the firstparagraph the following:

 

In addition, inthe U.S., in the event Toshiba or the Dealer Associate and Vital Images agreeto send a Vital Images representative to Toshiba’s, the Dealer Associate’s or acustomer’s location for providing the First Level Installation, Toshiba or theDealer Associates shall pay the sum of                            ($       )per instance to Vital Images for such service. Outside the U.S., in the event Toshiba or the Dealer Associate and VitalImages agree to send a Vital Images

 

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representative to Toshiba’s,the Dealer Associate’s or a customer’s location for providing the First LevelInstallation, the amount paid by Toshiba or the Dealer Associates for suchservice shall be negotiated on a case-by-case basis.

 

7.             Section4.5 of the Agreement is hereby amended by deleting the second paragraph of saidSection 4.5 and replacing it with the following:

 

Quarterly *Vitrea**â2*software purchases above the minimums set forth in the Commitment may beapplied to reduce or  satisfy the nexttwo (2) quarterly purchase commitments, and Toshiba may portion out such excesspurchase amount within such next two (2) quarterly purchase commitments in anymanner it deems appropriate. Furthermore, for every one and one-half (1-1/2)  *Vitrea**â2*software purchase orders received from Toshiba or a non-U.S. DealerAssociate (excluding TMSJ) above the applicable quarterly Commitment,  the quarterly TAMS Commitment shall bereduced by one (1) *Vitrea**â2*software unit.  Similarly, forevery one (1)  *Vitrea**â2*software purchase order received from TAMS above the applicable quarterlyCommitment, the quarterly non-U.S. (excluding TMSJ) Commitment shall be reducedby one and one-half (1-1/2)  *Vitrea**â2*software units.

 

8.             Section4.7 of the Agreement is hereby amended by deleting said Section 4.7 andreplacing it with the following:

 

4.7           Installation of Products.  Unless otherwise agreed in writing by VitalImages, all deliveries of the Products shall be directly to Toshiba or theDealer Associates, and Toshiba and the Dealer Associates shall then have thesole responsibility for the First Level Installation of such Products into acustomer’s computer system in the Territory in accordance with the standardsand specifications established by Vital Images from time to time and provided toToshiba and the Dealer Associates hereunder. If the Products need to be integrated with non-Toshiba equipment, VitalImages will perform the Second Level Installation, upon request from Toshiba,the Dealer Associates or the customers at no additional charge to Toshiba, toensure proper integration.

 

9.             Section5.2 of the Agreement is hereby amended by deleting said Section 5.2 andreplacing it with the following:

 

5.2           First Level Maintenance Service.   In accordance with their technical ability,and based upon their prior experience and training by Vital Images, Toshibaand/or the Dealer Associates shall use their reasonable best efforts to providethe First Level Maintenance; provided, however, that any and all on-sitemaintenance in the U.S. which is excluded from First Level Maintenance shall beprovided by Vital Images.  If VitalImages requests on-site assistance from Toshiba or the Dealer Associates in theU.S., such assistance will be provided at a      discount off of Toshiba’s or the Dealer Associate’s prevailing labor rates.

 

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10.           Section5.3 of the Agreement is hereby amended by deleting said Section 5.3 andreplacing it with the following:

 

5.3           Second Level Maintenance Service.   In accordance with its technical ability,Vital Images shall provide the Second Level Maintenance.   In accordance with their technical ability,and based upon their prior experience and training by Vital Images, Toshibaand/or the Dealer Associates shall use their reasonable best efforts to assistVital Images in providing the Second Level Maintenance for the benefit ofcustomers in the Territory.

 

11.           Section5.4 of the Agreement is hereby amended by substituting “Section 5.3” for“Section 5.2” in the first sentence thereof.

 

12.           ExhibitE to the Agreement, setting forth Product Prices, is hereby amended andrestated as set forth on attached Exhibit E to this Amendment.

 

13.           ExhibitF to the Agreement, setting forth Product Commitments, is hereby amendedand restated as set forth on attached Exhibit F to this Amendment.

 

14.           NotwithstandingSection 14.1 of the Agreement, setting forth the Term of the Agreement, thisAmendment shall extend the Term of the Agreement until September 30, 2003.

 

15.           ThisAmendment shall take effect retroactively as of October 1, 2002.

 

16.           Except as amended hereby, the Agreement shallremain in full force and effect in accordance with its original terms.  The amended portions of the Agreement shallbe read, wherever reasonable to do so, to be consistent with the portions notso amended; provided that the amended portions shall be deemed to control andany conflict shall be resolved in favor of such amended portions.

 

**IN WITNESS WHEREOF,** the parties hereto haveexecuted this Amendment effective the day and year first above written.

 
| VITAL IMAGES, INC. | TOSHIBA CORPORATION  MEDICAL SYSTEMS COMPANY |
|--------------------|----------------------------------------------|
|               |                                         |
|               |                                         |
| By                 | /s/ Jay D. Miller                            |   | By | /s/ Kenichi Komatsu |   |
|               |                                         |
| Name               | Jay D. Miller                                |   | Name | Kenichi Komatsu |   |
|               |                                         |
| Title              | President & CEO                          |   | Title | Chief Technology Executive |   |
|                    |                                              |  |  |  |  |  |  |  |  |

 

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**VITAL IMAGES, INC. AND TOSHIBA CORPORATION**

MARKETING ANDDISTRIBUTION AGREEMENT

 

**EXHIBIT E**

**PRODUCT PRICE LIST (EFFECTIVE FROM OCTOBER 1, 2002)**

 
| **License**                             |   | **Platform Configuration  Required** |        | **Pricing** |            | **Annual Software  Maintenance Pricing** |   |
|-----------------------------------------|--------|--------------------------------------|-------------|-------------|-----------------|------------------------------------------|--------|
| **U.S.(1)**                             |   | **Non-U.S.(2)**                      | **U.S.(3)** |        | **Non-U.S.(3)** |
| *Vitrea**â 2*                      |   | Windows Platform                     |        |        |            |                                     |   |   |   |   |   |
| *VScore**Ô  option*                |   | Windows Platform                     |        |        |            |                                     |   |   |   |   |   |
| *VScore  with EKG Gate**Ô option*  |   | Windows Platform                     |        |        |            |                                     |   |   |   |   |   |
| *VScore with AutoGate**Ô option*   |   | Windows Platform                     |        |        |            |                                     |   |   |   |   |   |
| *3D Angiography Option*                 |   | Windows Platform                     |        |        |            |                                     |   |   |   |   |   |
| *CT  Perfusion Option*                  |   | Windows Platform                     |        |        |            |                                     |   |   |   |   |   |
| *CT  Colongraphy Option*                |   | Windows Platform                     |        |        |            |                                     |   |   |   |   |   |
| *Automated  Vessel Measurements Option* |   | Windows Platform                     |        |        |            |                                     |   |   |   |   |   |

 

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(1)  Includeswarranty pursuant to Section 8.1(a) of the Agreement, end user training, and,subject to Section 3.6 of the Agreement, the Second Level Installation.

 

(2) Includeswarranty pursuant to Section 8.1(a) of the Agreement, the CT ColonographyOption, the Automated Vessel Measurements Option, and, subject to Section 3.6of the Agreement, the Second Level Installation.

 

(3)  Prices shown are for one-year maintenancecontracts.  If multi-year contracts aresold, the following discounts shall apply:

 

    discount for 2-year contract

    discount for 3-year contract

    discount for 4-year contract

    discount for 5-year contract

 

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**EXHIBIT F**

**PRODUCT COMMITMENTS**

 

Toshiba and/or its DealerAssociates shall purchase from Vital Images during the twelve (12) month periodended September 30, 2003 the following *Vitrea**â 2*Software License minimums:

 

**YEAR 1**

 
|                                    |   | **Commitment** |   | **Cumulative  Total** |   |
|-----------------------------------------|--------|----------------|--------|-----------------------|--------|
|                                    |   | **U.S.**       |   | **Non-U.S.**          |   | **U.S.** |   | **Non-U.S.** |   |
| QUARTER 4  Oct. 1, 2002 - Dec. 31, 2002 |   |           |   |                  |   |   |   |   |   |

 

**YEAR 2**

 
|                                     |   | **Commitment** |   | **Cumulative  Total** |   |
|------------------------------------------|--------|----------------|--------|-----------------------|--------|
|                                     |   | **U.S.**       |   | **Non-U.S.**          |   | **U.S.** |   | **Non-U.S.** |   |
| QUARTER 1  Jan. 1, 2003 - Mar. 31, 2003  |   |           |   |                  |   |   |   |   |   |
| QUARTER 2  April 1, 2003 - June 30, 2003 |   |           |   |                  |   |   |   |   |   |
| QUARTER 3  July 1, 2003 - Sept. 30, 2003 |   |           |   |                  |   |   |   |   |   |

 

Any purchases made by Toshiba and/or its Dealer Associates pursuant toSections 3.2 and 3.3 of this Agreement shall not be credited against theCommitment.

 

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