**Exhibit 10.44**

 

**AMENDMENT NO. 2 TO**

**MARKETINGAND DISTRIBUTION AGREEMENT**

**BETWEEN**

**VITALIMAGES, INC.**

**AND**

**TOSHIBAMEDICAL SYSTEMS CORPORATION**

 

**THIS AMENDMENT NO. 2 TO MARKETING AND DISTRIBUTION AGREEMENT**(the “Amendment”), is made and entered into this 12th day of December, 2003 byand 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 Medical Systems Corporation, having itsplace of business at 1385, Shimoishigami, Otawara-Shi, Tochigi 324-8550, Japan(“Toshiba”).

 

RECITALS:

 

**WHEREAS,**VitalImages and Toshiba Corporation, acting through its Medical Systems Company,previously executed that certain Marketing and Distribution Agreement (the“Agreement”) dated January 21, 2002, and effective October 1, 2001;and

 

**WHEREAS**,Vital Images and Toshiba Corporation previously executed that certain AmendmentNo. 1 to Marketing and Distribution Agreement (the “First Amendment”)dated January 9, 2003, and effective October 1, 2002; and

 

**WHEREAS,**Section 14 of the First Amendmentprovides that the term of the Agreement would expire on September 30,2003; and

 

**WHEREAS,**as of October 1, 2003, Toshiba succeeded to all of the ToshibaCorporation’s medical equipment and system business including its rights andobligations relating thereto, and Vital Images confirms such succession throughsigning this Amendment; and

 

**WHEREAS,**Vital Images and****Toshiba now desire to extend the term of the Agreement toDecember 31, 2004 and amend certain terms of the Agreement retroactivelyeffective as of October 1, 2003 as set forth below.

 

AGREEMENT:

 

**NOW, THEREFORE,** inconsideration of the premises and the mutual covenants and agreementshereinafter contained and other good and valuable consideration, the receiptand sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.                                       Article 1 of the Agreement is herebyamended by adding new Section 1.10, such new sections to read as follows:

 

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1.10                           Floating License. “Floating License” shall mean one software license for a Product whichinstead of being restricted to one (1) access point (i.e., a computerworkstation), can be used at more than one (1) access point, provided that suchuse shall be restricted to one access point at a time.

 

2.                                       Section 1.2of the Agreement is hereby restored to the original wording of Section 1.2in the Agreement, and the amended Section 1.2 as presented in Paragraph 2of the First Amendment is hereby rescinded.

 

3.                                       Section 2.2 of the Agreement is herebyamended by deleting the last sentence of said Section 2.2.

 

4.                                       Section 3.1(c) of the Agreement ishereby restored to the original wording of Section 3.1(c) in theAgreement, and the amended Section 3.1(c) as presented in Paragraph 4 ofthe First Amendment is hereby rescinded.

 

5.                                       Section 3.1(f) of the Agreement ishereby amended by deleting said Section 3.1(f) and replacing it with thefollowing:

 

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

 

6.                                       Section 3.3 of the Agreement is herebyamended by adding the following new paragraph at the end of saidSection 3.3:

 

Inaddition, upon written request of Toshiba and/or its Dealer Associates,Vital Images agrees to grant to Toshiba and/or its Dealer Associates up to four(4) royalty free software licenses, in total at any time, for the latestversion of the Products solely for use at four (4) mutually agreed-uponcustomer sites (“National Show Sites”) in the Territory for purposes ofreferrals and business development, provided that such customers do not alreadyhave software licenses for the Products, and subject to the Terms andConditions for the Demonstration License attached hereto as Exhibit D.  Vital Images also agrees to provide Toshibaand/or its Dealer Associates with such update or upgrade releases of theProducts as would be provided to their customers pursuant to Vital Images’standard software maintenance program, free of charge, during the term of theseNational Show Site licenses.  It isunderstood and agreed that the National Show Sites are expected by Vital Imagesto become “clinical collaborators” pursuant to Vital Images’ standardcollaboration agreement.

 

7.                                       Section 3.6 of the Agreement is herebyamended by deleting its first sentence and replacing it with the following:

 

Toshiba and itsDealer Associates assume full responsibility for all its own costs and expensesincurred in carrying out its obligations under this Agreement, including butnot limited to all rents, salaries, commissions, advertising, 

 

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demonstrations,travel and accommodations; provided, however, Vital Images will provide toToshiba and its Dealer Associates at no charge training for (a) one hundred(100) of Toshiba’s and the Dealer Associates’ sales and technical supportstaff, and (b) two (2) of Toshiba America Medical Systems, Inc.’s (“TAMS”)clinical managers, at Vital Images’ facilities or at any othermutually-agreeable location, in the function, application, installation and theFirst Level Maintenance of the Products and in the provision of assistance toVital Images in the Second Level Maintenance, provided, however, Toshiba or theDealer Associates shall pay the salaries and all transportation and livingexpenses for its staff.

 

8.                                       Article 3 of the Agreement is herebyamended by adding new Section 3.7, such new section to read asfollows:

 

3.7                                 Clinical Support License. Upon written request of Toshiba,Vital Images agrees to grant to Toshiba and/or its Dealer Associates up to five(5) royalty free software licenses, in total at any time, for the latestversion of the Products solely for their own clinical support uses, subject tothe Terms and Conditions for the Demonstration License attached hereto as ExhibitD.  Three (3) of the clinical supportlicenses shall be available for use in the U.S., and two (2) of the clinicalsupport licenses shall be available for use outside the United States.  Vital Images also agrees to provide Toshibaand/or its Dealer Associates with such update or upgrade releases of theProducts as would be provided to their customers pursuant to Vital Images’standard software maintenance program, free of charge, during the term of theseclinical support licenses.  Toshibahereby acknowledges and agrees that these licenses will be solely for theinternal use of Toshiba and/or its Dealer Associates and shall not be used atany time by or for their customers.

 

9.                                       Section 4.5 of the Agreement is herebyamended by deleting the words “(excluding TMSJ)” in the second and thirdsentences of the second paragraph.

 

10.                                 Section 5.2 of the Agreement is herebyamended by deleting said Section 5.2 and replacing it with the following:

 

5.2                                 First Level Maintenance Service.  Inaccordance with their technical ability, and based upon their prior experienceand training by Vital Images, Toshiba and/or the Dealer Associates shall usetheir reasonable best efforts to provide the First Level Maintenance tocustomers outside the United States. Vital Images shall provide First Level Maintenance to customers withinthe United States.  If Vital Imagesrequests on-site assistance from Toshiba or TAMS in the United States, suchassistance will be provided at a *% discount off of Toshiba’s or TAMS’prevailing labor rates.

 

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*                 The material has been omitted pursuant to arequest for confidential treatment and the material has been filed separatelywith the Office of the Secretary of the Securities and Exchange Commission.

 

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11.                                 Section 6.1 of the Agreement is herebyamended by adding the following new paragraph at the end of saidSection 6.1:

 

In recognition of thepurchase commitments made by Toshiba and its Dealer Associates pursuant toSection 4.5 of this Agreement, Vital Images hereby covenants and agreesthat the transfer price charged to Toshiba and its Dealer Associates for theProducts shall at all times be lowest transfer price charged by Vital Images toits vendors, unless a vendor makes purchase commitments in excess of those madeby Toshiba and its Dealer Associates.

 

12.                                 Section 8.1(c) of the Agreement ishereby amended by deleting said Section 8.1(c) and replacing it with thefollowing:

 

8.1(c)  Warranty Extension.  Replacement or correction of all or any partof the Products does not extend the Warranty Period, which shall begin on thedelivery date.  Notwithstanding theforegoing, and notwithstanding Section 8.1(a) above, in the event that theProducts have been installed on a hardware platform which has been recommendedby Vital Images, and do not perform as a result of problems with such hardware,the Warranty Period shall not commence until the date on which all issuesdefined in the customer’s warranty claim have been resolved.  Vital Images and its third party licensorsexpressly disclaim any commitment to provide maintenance or support of theProducts beyond the Warranty Period, in the absence of entering into a separatesoftware maintenance arrangement with Vital Images and except to the extentstated in Section 5.1 for the 6-month post warranty grace period.Furthermore, the Products are derived from and include software from thirdparty licensors, who make no warranty, express or implied, regarding theProducts, who disclaim any and all liability for the Products and who will notundertake to provide any information or support regarding the Products.

 

13.                                 Exhibit A to the Agreement, setting forth theProducts, is hereby amended and restated as set forth on attached Exhibit Ato this Amendment.

 

14.                                 Exhibit C to the Agreement, setting forth the List ofDealer Associates, is hereby amended and restated as set forth on attached ExhibitC to this Amendment.

 

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

 

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

 

17.                                 Notwithstanding Section 14.1 of theAgreement, setting forth the Term of the Agreement, this Amendment No. 2shall extend the Term of the Agreement until December 31, 2004.

 

18.                                 This Amendment shall take effectretroactively as of October 1, 2003.

 

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19.                                 VitalImages hereby confirms and agrees to Toshiba’s succession to all of ToshibaCorporation’s rights and obligations under the Agreement, as amended by the First Amendment and this Amendment No. 2.

 

20.                                 Except as amended hereby, the Agreement, asamended by the First Amendment, shall remain in full force and effect inaccordance with its original terms. The amended portions of the Agreement shall be read, wherever reasonableto do so, to be consistent with the portions not so amended; provided that theamended portions shall be deemed to control and any conflict shall be resolvedin favor of such amended portions.

 

*[REMAINDEROF PAGE INTENTIONALLY LEFT BLANK]*

 

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

 
| VITAL IMAGES, INC. | TOSHIBA MEDICAL SYSTEMS  CORPORATION |
|--------------------|--------------------------------------|
|               |                                 |
|               |                                 |
| 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 TOSHIBAMEDICAL SYSTEMS CORPORATION**

# MARKETING ANDDISTRIBUTION AGREEMENT

#  

**EXHIBIT A**

**PRODUCTS**

 

 

*Vitrea**â2*

 

*VScore*Ô

 

*VScore with EKG Gate*Ô

* *

*VScore with AutoGate**Ô*

 

###### *3DAngiography Option*

######  

*CT Colonography Option*

 

*Automated Vessel Measurements Option*

 

*CT Perfusion Option*

 

*CT Cardiac Option with CFA*

 

*CT Cardiac Option with CFA andPeripheral Vessel Probe Option*

 

*Peripheral Vessel Probe Option*

 

*Fusion 7D OptionTM*

 

*ImageChecker LN 500 OptionTM*

 

*ImageChecker LN 1000 OptionTM*

 

*Upgrade from ImageChecker LN500TM  to ImageChecker LN 1000TM*

 

*Bone Mineral Analysis Option*

 

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**VITAL IMAGES, INC. AND TOSHIBAMEDICAL SYSTEMS CORPORATION**

# MARKETING ANDDISTRIBUTION AGREEMENT

#  

**EXHIBIT C**

**LIST OF DEALER ASSOCIATES**

 
| **Company Name** |   | **MAIN COUNTRY** |   | **Address** |
|------------------|--------|------------------|--------|-------------|
| *                |   | *                |   | *           |

 

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*                 The material has been omitted pursuant to arequest for confidential treatment and the material has been filed separatelywith the Office of the Secretary of the Securities and Exchange Commission.

 

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**VITAL IMAGES, INC. AND TOSHIBAMEDICAL SYSTEMS CORPORATION**

# MARKETING ANDDISTRIBUTION AGREEMENT

#  

**EXHIBIT E**

**PRODUCT PRICE LIST (EFFECTIVE FROMOCTOBER 1, 2003)**

 
|                                                                          |   | **Platform Configuration  Required** |        | **Pricing**                                          |            | **Annual Software  Maintenance Pricing**          |     |
|-------------------------------------------------------------------------------|--------|--------------------------------------|-------------|------------------------------------------------------|-----------------|---------------------------------------------------|----------|
| **License**                                                                   |   |                                 | **U.S.(1)** |                                                 | **Non-U.S.(2)** |                                              | **U.S.** |   | **Non-U.S.** |   |
| *Vitrea**â 2*                                                            |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *VScore**Ô  option*                                                      |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *VScore with EKG Gate**Ô  option*                                        |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| VScore with  AutoGateÔ option                                            |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| 3D Angiography  Option                                                        |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *CT Perfusion Option*                                                         |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *CT Colongraphy Option*                                                       |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *Automated Vessel Measurements  Option*                                       |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *CT Cardiac Option with CFA*                                                  |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *CT Cardiac Option with CFA and  Peripheral Vessel Probe Option*              |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *Peripheral Vessel Probe Option*                                              |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *Fusion 7D OptionTM*                                                      |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *ImageChecker LN 500 OptionTM*                                            |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *ImageChecker LN 1000 OptionTM*                                           |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *Upgrade from ImageChecker LN  500TM  to ImageChecker LN 1000TM* |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *Bone Mineral Analysis Option*                                                |   | Windows Platform                     |        | *                                                    |            | *                                                 |     | * |   | * |   |
| *Floating License*                                                            |   |                                 |        | $*, plus $* for  each additional access point (3)(4) |            | $*, plus $* for  each additional access point (4) |     | * |   |   |   |

 

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(1)   Includes warranty pursuant toSection 8.1(a) of the Agreement, end user training, and, subject toSection 3.6 of the Agreement, the Second Level Installation.

 

(2)  Includes warranty pursuant toSection 8.1(a) of the Agreement, the CT Colonography Option, the AutomatedVessel Measurements Option, and, subject to Section 3.6 of the Agreement,the Second Level Installation.

 

(3)  When TAMS is able to perform installation inthe United States, the pricing for each additional access point will decreaseto $* for each additional access point.

 

(4)   The charge for additional access pointsapplies for each access point in excess of the one (1) access point covered bythe base *Vitrea**â 2*Software License.

 

**ADDITIONAL MAINTENANCE PRICING(EFFECTIVE FROM OCTOBER 1, 2003)**

 
|                                                                                                                                                                                             |   | **Pricing** |   |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|-------------|--------|
| **Maintenance Package**                                                                                                                                                                          |   | **U.S.**    |   | **Non-U.S.** |   |
| *Premium Maintenance Package*

Includes 24x7 support, 4 hour on-site response, proactive support and  preventative maintenance                                                                   |   | *           |   | * |   |
| *530 Memory Upgrade*(530 Systems Only)                                                                                                                                                           |   | *           |   | * |   |
| *ATI Graphics Upgrade*(530 and 650 Systems Only)                                                                                                                                                 |   | *           |   | * |   |
| License Transfer  Fee                                                                                                                                                                            |   | *           |   | * |   |
| *Technology  Refresh*

Toshiba provides new hardware within 18-24 months of initial sale; Vital  Images provides configuration information and administration, and license  transfer (U.S. only) |   | *           |   | * |   |

 

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*                 The material has been omitted pursuant to arequest for confidential treatment and the material has been filed separatelywith the Office of the Secretary of the Securities and Exchange Commission.

 

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

# **MARKETINGAND DISTRIBUTION AGREEMENT**

#  

**EXHIBIT F**

**PRODUCT COMMITMENTS**

 

Toshiba and/or its DealerAssociates shall purchase from Vital Images during the fifteen (15) monthperiod ended December 31, 2004 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, 2003 - Dec. 31, 2003 |   | *              |   | *                     |   | * |   | * |   |

 

**YEAR 2**

 
|                                                      |   | **Commitment** |   | **Cumulative  Total** |   |
|-----------------------------------------------------------|--------|----------------|--------|-----------------------|--------|
|                                                      |   | **U.S.**       |   | **Non-U.S.**          |   | **U.S.** |   | **Non-U.S.** |   |
| QUARTER  1  Jan. 1, 2004 - Mar. 31, 2004             |   | *              |   | *                     |   | * |   | * |   |
| QUARTER  2  April 1, 2004 - June 30,  2004 |   | *              |   | *                     |   | * |   | * |   |
| QUARTER  3  July 1, 2004 - Sept. 30, 2004       |   | *              |   | *                     |   | * |   | * |   |
| QUARTER  4  Oct. 1, 2004 - Dec. 31, 2004             |   | *              |   | *                     |   | * |   | * |   |

 

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 the Commitment.

 

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*                 The material has been omitted pursuant to arequest for confidential treatment and the material has been filed separatelywith the Office of the Secretary of the Securities and Exchange Commission.

 

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