**Exhibit10.37**

 

**AMENDMENTNO. 1 TO**

 

**VITALIMAGES, INC.**

**AND**

**TOSHIBACORPORATION**

 

**MARKETINGAND DISTRIBUTION AGREEMENT**

 

**THISAMENDMENT 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,**VitalImages and Toshiba previously executed that certain Marketing and DistributionAgreement (the “Agreement”) dated January 21, 2002, and effective October 1,2001; and

 

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

 

**WHEREAS,**Vital Images and****Toshiba now desire to extend the term of the Agreement to September 30,2003 and amend certain terms of the Agreement effective October 1, 2002 as setforth 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 hereby amendedby adding new Sections 1.8 and 1.9, such new 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.

 

1.9                                 Second Level Installation. “Second Level Installation” shall mean working with the customer andnon-Toshiba OEM’s to link non-Toshiba

 

Vital ImagesConfidential

 

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equipment to the computerworkstation(s) on which the Products have been installed.

 

2.                                       Section 1.2 of the Agreement is herebyamended by deleting the first sentence of said Section 1.2 and replacing itwith the following:

 

“First Level Maintenance”shall mean electronic or telephone response, or on-site maintenance, to dealwith any problem or software bug in the Product which is provided by Toshiba orthe Dealer Associates to customers in the Territory who have installed theProducts that are under Vital Images’ standard warranty or standard softwaremaintenance program.  Only in the U.S., FirstLevel Maintenance shall not include any on-site maintenance provided by Toshibaor the Dealer Associates.

 

3.                                       Section 3.1(b) of the Agreement is herebyamended by deleting said Section 3.1(b) and replacing it with the following:

 

(b)                               Toperform the First Level Installation for customers in the Territory withrespect to the Products, and to ensure that only authorized versions of theProducts are installed as supplied by Vital Images for customers in theTerritory.

 

4.                                       Section 3.1(c) of the Agreement is herebyamended by deleting said Section 3.1(c) and replacing it with the following:

 

(c)                                  Topromptly respond to all inquiries or complaints from customers; to provide allnecessary and appropriate First Level Maintenance; and to cooperate with VitalImages in the provision of the Second Level Maintenance.

 

5.                                       Section 3.1(f) of the Agreement is herebyamended by deleting said Section 3.1(f) and replacing it with the following:

 

(f)                                  Tomaintain an adequately trained and staffed sales and technical support groupfor the marketing and distribution of the Products, and for the First LevelInstallation and First Level Maintenance.

 

6.                                       Section 3.6 of the Agreement is herebyamended by adding to the end of the first paragraph the following:

 

In addition, in the U.S.,in the event Toshiba or the Dealer Associate and Vital Images agree to send aVital 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 forsuch service.  Outside the U.S., in theevent Toshiba or the Dealer Associate and Vital Images agree to send a VitalImages representative to Toshiba’s, the Dealer Associate’s or a customer’slocation for providing the First Level Installation, the amount paid by Toshibaor the Dealer Associates for such service shall be negotiated on a case-by-casebasis.

 

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*                                         Thematerial has been omitted pursuant to a request for confidential treatment andthe material has been filed separately with the Office of the Secretary of theSecurities and Exchange Commission.

 

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7.                                       Section 4.5 of the Agreement is herebyamended by deleting the second paragraph of said Section 4.5 and replacing itwith 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.                                       Section 4.7 of the Agreement is herebyamended by deleting said Section 4.7 and replacing it with the following:

 

4.7                               Installation of Products. Unless otherwise agreed in writing by Vital Images, all deliveries ofthe Products shall be directly to Toshiba or the Dealer Associates, and Toshibaand the Dealer Associates shall then have the sole responsibility for the FirstLevel Installation of such Products into a customer’s computer system in theTerritory in accordance with the standards and specifications established byVital Images from time to time and provided to Toshiba and the DealerAssociates hereunder.  If the Productsneed to be integrated with non-Toshiba equipment, Vital Images will perform theSecond Level Installation, upon request from Toshiba, the Dealer Associates orthe customers at no additional charge to Toshiba, to ensure proper integration.

 

9.                                       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; provided,however, that any and all on-site maintenance in the U.S. which is excludedfrom First Level Maintenance shall be provided by Vital Images.  If Vital Images requests on-site assistancefrom Toshiba or the Dealer Associates in the U.S., such assistance will beprovided at a * discount off of Toshiba’s or the Dealer Associate’s prevailinglabor rates.

 

10.                                 Section 5.3 of the Agreement is herebyamended by deleting said Section 5.3 and replacing it with the following:

 

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*                                         Thematerial has been omitted pursuant to a request for confidential treatment andthe material has been filed separately with the Office of the Secretary of theSecurities and Exchange Commission.

 

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5.3                              Second Level Maintenance Service.  Inaccordance with its technical ability, Vital Images shall provide the SecondLevel Maintenance.  In accordance withtheir technical ability, and based upon their prior experience and training byVital Images, Toshiba and/or the Dealer Associates shall use their reasonablebest efforts to assist Vital Images in providing the Second Level Maintenancefor the benefit of customers in the Territory.

 

11.                                 Section 5.4 of the Agreement is herebyamended by substituting “Section 5.3” for “Section 5.2” in the first sentencethereof.

 

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

 

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

 

14.                                 Notwithstanding Section 14.1 of theAgreement, setting forth the Term of the Agreement, this Amendment shall extendthe Term of the Agreement until September 30, 2003.

 

15.                                 This Amendment shall take effectretroactively 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 have executed this Amendment effective the day and yearfirst 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 TOSHIBACORPORATION**

MARKETING ANDDISTRIBUTION AGREEMENT

 

**EXHIBIT E**

**PRODUCT PRICE LIST (EFFECTIVE FROMOCTOBER 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)  Includes warranty pursuant to Section 8.1(a)of the Agreement, end user training, and, subject to Section 3.6 of theAgreement, the Second Level Installation.

 

(2) Includes warrantypursuant to Section 8.1(a) of the Agreement, the CT Colonography Option, theAutomated Vessel Measurements Option, and, subject to Section 3.6 of theAgreement, 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-yearcontract

* discount for 3-yearcontract

* discount for 4-yearcontract

* discount for 5-yearcontract

 

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*                                         Thematerial has been omitted pursuant to a request for confidential treatment andthe material has been filed separately with the Office of the Secretary of theSecurities and Exchange Commission.

 

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**VITAL IMAGES, INC. AND TOSHIBACORPORATION**

# **MARKETING AND DISTRIBUTION AGREEMENT**

 

**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 byToshiba and/or its Dealer Associates pursuant to Sections 3.2 and 3.3 of thisAgreement shall not be credited against the Commitment.

 

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*                                         Thematerial has been omitted pursuant to a request for confidential treatment andthe material has been filed separately with the Office of the Secretary of theSecurities and Exchange Commission.

 

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