**Exhibit 10.23**

 

**CHANGE IN CONTROL AGREEMENT**

 

September 25,2009

 

AaronErkan Akyuz

3121West 69th Street

Apt.218

Edina,MN  55345

 

Dear Erkan:

 

Inconnection with your hiring as the Executive Vice President of Research andDevelopment of Vital Images, Inc., a Minnesota corporation (the “Company”),we hereby offer you valuable and unique benefits.  The Company considers the establishment andmaintenance of a sound and vital management to be essential to protecting andenhancing the best interests of the Company and its shareholders.  In this connection, the Company recognizesthat, as is the case with many publicly held corporations, the possibility of aChange in Control may arise and that such possibility and the uncertainty andquestions which it may raise among management may result in the departure ordistraction of management personnel to the detriment of the Company and itsshareholders.

 

Accordingly, the Board has determined thatappropriate steps should be taken to minimize the risk that Company managementwill depart prior to a Change in Control, thereby leaving the Company withoutadequate management personnel during such a critical period, and thatappropriate steps also be taken to reinforce and encourage the continuedattention and dedication of members of the Company’s management to theirassigned duties without distraction in circumstances arising from thepossibility of a Change in Control.  Inparticular, the Board believes it important, should the Company or itsshareholders receive a proposal for transfer of control, that you be able tocontinue your management responsibilities without being influenced by theuncertainties of your own personal situation.

 

The Board recognizes that continuance of yourposition with the Company involves a substantial commitment to the Company interms of your personal life and professional career and the possibility offoregoing present and future career opportunities, for which the Companyreceives substantial benefits.  Therefore,to induce you to remain in the employ of the Company, this Agreement, which hasbeen approved by the Board, sets forth the benefits which the Company agreeswill be provided to you in the event your employment with the Company isterminated in connection with a Change in Control under the circumstancesdescribed below.

 

The following terms will have the meaning setforth below unless the context clearly requires otherwise.  Terms defined elsewhere in this Agreementwill have the same meaning throughout this Agreement.

 

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**ARTICLEI.**

**DEFINITIONS**

 

1.                                       “Affiliate”means (i) any corporation more than 50% of whose outstanding securitiesordinarily having the right to vote at elections of directors is owned directlyor indirectly by the Company or (ii) any other form of business entity inwhich the Company, by virtue of a direct or indirect ownership interest, hasthe right to elect a majority of the members of such entity’s governing body.

 

2.                                       “Agreement”means this letter agreement as amended, extended or renewed from time to timein accordance with its terms.

 

3.                                       “Board”means the board of directors of the Company duly qualified and acting at thetime in question.  On and after the dateof a Change in Control, any duty of the Board in connection with this Agreementis nondelegable and any attempt by the Board to delegate any such duty isineffective.

 

4.                                       “Cause”means:

 

a.                                       your grossmisconduct;

 

b.                                      your willfuland continued failure to perform substantially your duties with the Company(other than any such failure (1) resulting from your Disability orincapacity due to bodily injury or physical or mental illness or (2) relatingto changes in your duties after a Change in Control which constitute GoodReason) after a demand for substantial performance is delivered to you by thechair of the Board which specifically identifies the manner in which you havenot substantially performed your duties and provides for a reasonable period oftime within which you may take corrective actions; or

 

c.                                       your conviction(including a plea of nolo contendere) of willfully engaging in illegal conductconstituting a felony or gross misdemeanor under federal or state law which ismaterially and demonstrably injurious to the Company or which impairs yourability to perform substantially your duties for the Company.

 

An act or failure to actwill be considered “gross” or “willful” for this purpose only if done, oromitted to be done, by you in bad faith and without reasonable belief that itwas in, or not opposed to, the best interests of the Company.  Any act, or failure to act, based uponauthority given pursuant to a resolution duly adopted by the Company’s board ofdirectors (or a committee thereof) or based upon the advice of counsel for theCompany will be conclusively presumed to be done, or omitted to be done, by youin good faith and in the best interests of the Company.  It is also expressly understood that yourattention to matters not directly related to the business of the Company willnot provide a basis for termination

 

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for Cause so long as theBoard did not expressly disapprove in writing of your engagement in suchactivities either before or within a reasonable period of time after the Boardknew or could reasonably have known that you engaged in those activities.  Notwithstanding the foregoing, you may not beterminated for Cause unless and until there has been delivered to you a copy ofa resolution duly adopted by the affirmative vote of not less than a majorityof the entire membership of the Board at a meeting of the Board called and heldfor the purpose (after reasonable notice to you and an opportunity for you,together with your counsel, to be heard before the Board), finding that in thegood faith opinion of the Board you were guilty of the conduct set forth abovein clauses a., b. or c. of this definition and specifying the particularsthereof in detail.

 

5.                                       “Change inControl” means any of the following:

 

a.                                       the sale,exchange or other transfer, directly or indirectly, of all or substantially allof the assets of the Company to any Person in one transaction or in a series ofrelated transactions which occur during the twelve-month period ending on thedate of the most recent purchase or other acquisition by such Person;

 

b.                                      any Person isor becomes the “beneficial owner” (as defined in Rule 13d-3 under theExchange Act), directly or indirectly, of (1) 30 percent or more, but notmore than 50 percent, of the combined voting power of the outstandingsecurities of the Company ordinarily having the right to vote at elections ofdirectors, unless the transaction resulting in such ownership has been approvedin advance by the “continuing directors” or (2) more than 50 percent ofthe combined voting power of the outstanding securities of the Company ordinarilyhaving the right to vote at elections of directors (regardless of any approvalby the continuing directors);

 

d.                                      a merger orconsolidation to which the Company is a party if the shareholders of theCompany immediately prior to the effective date of such merger or consolidationhave, solely on account of ownership of securities of the Company at such time,“beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act)immediately following the effective date of such merger or consolidation ofsecurities of the surviving company representing less than 50 percent of thecombined voting power of the surviving corporation’s then outstandingsecurities ordinarily having the right to vote at elections of directors(regardless of any approval by the continuing directors); or

 

e.                                       the continuingdirectors cease for any reason to constitute at least a majority of the Board.

 

For purposes of this Section 1(e),a “continuing director” means any individual who is a member of the Board on October 1,2009, while he or she is a member of the Board, and any individual whosubsequently becomes a member of the Board whose election or nomination forelection by the Company’s shareholders was approved by a vote of at least amajority of 

 

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the directors who arecontinuing directors (either by a specific vote or by approval of the proxystatement of the Company in which such individual is named as a nominee fordirector without objection to such nomination).

 

In all cases, thedetermination of whether a Change in Control has occurred shall be made inaccordance with Code Section 409A and the regulations, notices and otherguidance of general applicability issued thereunder.

 

6.                                       “Code”means the Internal Revenue Code of 1986, as amended.  Any reference to a specific provision of theCode includes a reference to such provision as it may be amended from time totime and to any successor provision.

 

7.                                       “Company”means Vital Images, Inc. and/or any Affiliate.

 

8.                                       “ConfidentialInformation” means information which is proprietary to the Company orproprietary to others and entrusted to the Company, whether or not tradesecrets. It includes information relating to business plans and to business asconducted or anticipated to be conducted, and to past or current or anticipatedproducts or services.  It also includes,without limitation, information concerning research, development, purchasing,accounting, marketing and selling.  Allinformation which you have a reasonable basis to consider confidential isConfidential Information, whether or not originated by you and without regardto the manner in which you obtain access to that and any other proprietaryinformation.

 

9.                                       “Date ofTermination” following a Change in Control (or prior to a Change in Controlif your termination was either a condition of the Change in Control or was atthe request or insistence of any Person related to the Change in Control)means:

 

a.                                       if youremployment is to be terminated for Disability, 30 days after Notice ofTermination is given (provided that you have not returned to the performance ofyour duties on a full-time basis during such 30-day period);

 

b.                                      if youremployment is to be terminated by the Company for Cause or by you for GoodReason, the date specified in the Notice of Termination, which date may not beless than 30 days or more than 60 days after the date on which the Notice ofTermination is given unless you and the Company otherwise expressly agree;

 

c.                                       if youremployment is to be terminated by the Company for any reason other than Cause,Disability, death or Retirement, the date specified in the Notice ofTermination, which in no event may be a date earlier than 90 days after thedate on which a Notice of Termination is given, unless an earlier date has beenexpressly agreed to by you in writing either in advance of, or after; receivingsuch Notice of Termination; or

 

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d.                                      if youremployment is terminated by reason of death or Retirement, the date of death orRetirement, respectively.

 

In the case of terminationby the Company of your employment for Cause, if you have not previouslyexpressly agreed in writing to the termination, then within 30 days afterreceipt by you of the Notice of Termination with respect thereto, you maynotify the Company that a dispute exists concerning the termination, in whichevent the Date of Termination will be the date set either by mutual writtenagreement of the parties or by the judge or arbitrators in a proceeding asprovided in Article VII Section 6 of this Agreement.  During the pendency of any such dispute, youwill continue to make yourself available to provide services to the Company andthe Company will continue to pay you your full compensation and benefits ineffect immediately prior to the date on which the Notice of Termination isgiven (without regard to any changes to such compensation or benefits whichconstitute Good Reason) and until the dispute is resolved in accordance with Article VIISection 6 of this Agreement.  Youwill be entitled to retain the full amount of any such compensation andbenefits without regard to the resolution of the dispute unless the judge orarbitrators decide(s) that your claim of a dispute was frivolous oradvanced by you in bad faith.

 

10.                                 “Disability”means a disability as defined in the Company’s long-term disability plan as ineffect immediately prior to the Change in Control or; in the absence of such aplan, means permanent and total disability as defined in section 22(e)(3) ofthe Code.

 

11.                                 “ExchangeAct” means the Securities Exchange Act of 1934, as amended.  Any reference to a specific provision of theExchange Act or to any rule or regulation thereunder includes a referenceto such provision as it may be amended from time to time and to any successorprovision.

 

12.                                 “Good Reason”means:

 

a.                                       change in your status, position(s), duties or responsibilities as anexecutive of the Company as in effect immediately prior to the Change inControl which, in your reasonable judgment, is an adverse change (other than,if applicable, any such change directly attributable to the fact that theCompany is no longer publicly owned) except in connection with the terminationof your employment for Cause, Disability or Retirement or as a result of yourdeath or by you other than for Good Reason;

 

b.                                      a reduction by the Company in your base salary (or an adverse change inthe form or timing of the payment thereof) as in effect immediately prior tothe Change in Control or as thereafter increased;

 

c.                                       the failure bythe Company to continue in effect any Plan in which you (and/or your family)are eligible to participate at any time during the 90-day period immediatelypreceding the Change in Control (or Plans providing you (and/or your family)with at least substantially similar benefits) other than as a result of thenormal expiration 

 

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of any such Plan inaccordance with its terms as in effect immediately prior to the 90-day periodimmediately preceding the time of the Change in Control, or the taking of anyaction, or the failure to act, by the Company which would adversely affect your(and/or your family’s) continued eligibility to participate in any of suchPlans on at least as favorable a basis to you (and/or your family) as is thecase on the date of the Change in Control or which would materially reduce your(and/or your family’s) benefits in the future under any of such Plans ordeprive you (and/or your family) of any material benefit enjoyed by you (and/oryour family) at the time of the Change in Control;

 

d.                                      the Company’srequiring you to be based more than 30 miles from where your office is locatedimmediately prior to the Change in Control, except for required travel on theCompany’s business, and then only to the extent substantially consistent withthe business travel obligations which you undertook on behalf of the Companyduring the 90-day period immediately preceding the Change in Control (withoutregard to travel related to or in anticipation of the Change in Control);

 

e.                                       the failure bythe Company to obtain from any Successor the assent to this Agreementcontemplated by Article VI of this Agreement;

 

f.                                         any purportedtermination by the Company of your employment which is not properly effectedpursuant to a Notice of Termination and pursuant to any other requirements ofthis Agreement, and for purposes of this Agreement, no such purportedtermination will be effective;

 

g.                                      any refusal bythe Company to continue to allow you to attend to matters or engage inactivities not directly related to the business of the Company which, at anytime prior to the Change in Control, you were not expressly prohibited inwriting by the Board from attending to or engaging in; or

 

h.                                      the terminationof your employment by the Company for any reason other than death,  Cause, Disability or Retirement during thetwelve (12) months following the month in which a Change in Control occurs.

 

13.                                 “Notice ofTermination” means a written notice given on or after the date of a Changein Control (unless your termination before the date of the Change in Controlwas either a condition of the Change in Control or was at the request orinsistence of any Person related to the Change in Control) which indicates thespecific termination provision in this Agreement pursuant to which the noticeis given.  Any purported termination bythe Company or by you for Good Reason on or after the date of a Change inControl (or before the date of a Change in Control if your termination waseither a condition of the Change in Control or was at the request or insistenceof any Person related to the Change in Control) must be communicated by writtenNotice of Termination to be effective; provided, that your failure to provideNotice of Termination will not limit any of your rights under this 

 

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Agreement except to theextent the Company demonstrates that it suffered material actual damages byreason of such failure.

 

14.                                 “Person”means any individual, corporation, partnership, group, association or other “person,”as such term is used in section 14(d) of the Exchange Act, other than theCompany, any Affiliate or any employee benefit plan(s) sponsored by theCompany or an Affiliate.

 

15.                                 “Plan”means any compensation plan, program, policy or agreement (such as a stockoption, restricted stock plan or other equity-based plan), any bonus orincentive compensation plan, program, policy or agreement, any employee benefitplan, program, policy or agreement (such as a thrift, pension, profit sharing,medical, dental, disability, accident, life insurance, relocation, salarycontinuation, expense reimbursements, vacation or fringe benefits plan orpolicy) or any other plan, program, policy or agreement of the Company intendedto benefit employees (and/or their families) generally, management employees(and/or their families) as a group or you (and/or your family) in particular.

 

16.                                 “Retirement”means termination of employment on or after the day on which you attain the ageof 65.

 

17.                                 “Successor”means any Person that succeeds to, or has the practical ability to control(either immediately or solely with the passage of time), the Company’s businessdirectly, by merger, consolidation or other form of business combination, orindirectly, by purchase of the Company’s outstanding securities ordinarilyhaving the right to vote at the election of directors or, all or substantiallyall of its assets or otherwise.

 

**ARTICLE II.**

**TERM OF AGREEMENT**

** **

This Agreement is effective immediately and willcontinue in effect until October 1, 2010; provided, however; thatcommencing on October 1, 2010 and each October 1st thereafter, the term of thisAgreement will automatically be extended for 12 additional months beyond theexpiration date otherwise then in effect, unless at least 90 calendar daysprior to any such October 1st, theCompany or you has given notice that this Agreement will not be extended; and,provided, further; that if a Change in Control has occurred during the term ofthis Agreement, this Agreement will continue in effect beyond the terminationdate then in effect for a period of 12 months following the month during whichthe Change in Control occurs or, if later, until the date on which the Company’sobligations to you arising under or in connection with this Agreement have beensatisfied in full.

 

**ARTICLE III.**

**CHANGE IN CONTROL BENEFITS**

 

1.                                       Benefits upon aChange in Control Termination.  You will become entitled to the payments andbenefits described in clauses (a) and (b) of this Section 1 of Article III,subject to the 

 

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limitations described inclause (c) of this Section 1 of Article III, and to the benefitof the provisions described in clause (c), if and only if (i) youremployment with the Company is terminated by the Company for any reason otherthan death, Cause, Disability or Retirement, or if you terminate youremployment with the Company for Good Reason; and (ii) the terminationoccurs either within the period beginning on the date of a Change in Controland ending on the last day of the twelfth month that begins after the monthduring which the Change in Control occurs or prior to a Change in Control ifyour termination was either a condition of the Change in Control or was at therequest or insistence of a Person related to the Change in Control.

 

a.                                       Cash Payment.  Within ten (10) business days followingthe Date of Termination or, if later, within ten (10) business daysfollowing the date of the Change in Control, the Company will make a lump-sumcash payment to you in an amount equal to your annual base salary in effect onthe date of the Change in Control.

 

b.                                      Welfare Plans. The Companywill maintain in full force and effect, for the continued benefit of you andyour dependents for a period terminating 24 months after the Date ofTermination, all insured and self-insured employee welfare benefit Plans(including, without limitation, medical, life, dental, vision and disabilityplans) in which you were eligible to participate at any time during the 90-dayperiod immediately preceding the Change in Control, provided that yourcontinued participation is possible under the general terms and provisions ofsuch Plans and any applicable funding media and without regard to anydiscretionary amendments to such Plans by the Company following the Change inControl (or prior to the Change in Control if amended as a condition or at therequest or insistence of a Person (other than the Company) related to theChange in Control) and provided that you continue to pay an amount equal toyour regular contribution under such Plans for such participation (based uponyour level of benefits and employment status most favorable to you at any timeduring the 90-day period immediately preceding the Change in Control).  The continuation period under federal andstate continuation laws, to the extent applicable, will begin to run from thedate on which coverage pursuant to this clause (b) ends.  If, at the end of the 24-month period, youhave not previously received or are not then receiving equivalent benefits froma new employer (including coverage for any pre-existing conditions), theCompany, pursuant to federal and state law, will provide, for a period ofeighteen (18) months (the “COBRA Period”), a continuation of your and yourdependents’ coverage under such Plans (the “COBRA Coverage”), provided that youwill be required to pay for such benefits during the COBRA Period, should youelect to receive COBRA Coverage.

 

c.                                       Limitation onPayments and Benefits. Notwithstanding anything in this Agreement to the contrary, if any ofthe payments or benefits to be made or provided in connection with thisAgreement, together with any other payments, benefits or awards which you havethe right to receive from the Company, or any corporation

 

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which is a member of an “affiliatedgroup” (as defined in section 1504(a) of the Code without regard tosection 1504(b) of the Code) of which the Company is a member (“Affiliate”),constitute an “excess parachute payment” (as defined in section 280G(b) ofthe Code), two calculations will be performed. In the first calculation, the payments, benefits or awards will bereduced by the amount the Company deems necessary so that none of the paymentsor benefits under the Agreement (including from the existing Stock Option andIncentive Plan) are excess parachute payments. In the second calculation, the payments will not be reduced so as toeliminate an excess parachute payment, but will be reduced by the amount of theapplicable excise tax as imposed by section 4999 of the Code.  The two calculations will be compared and thecalculation providing the largest net payment to the employee will beutilized.  The calculations must be made ingood faith by legal counsel or a certified public accountant selected by theCompany, and such determination will be conclusive and binding upon you and theCompany.  If a reduction in payments orbenefits is required by the comparison above, the payments or benefits underthe Agreement shall be reduced in the order that minimizes the amount of totalreduction in payments and benefits under the Agreement as a result of thisprovision.

 

d.                                      409ARestrictions. Notwithstanding the foregoing, if any of the payments or other benefitsdescribed in this Article III are subject to the requirements of Code Section 409Aand the Company determines that you are a “specified employee” as defined inCode Section 409A as of the Date of Termination, such payments shall notbe paid or commence earlier than the first day of the seventh month followingthe Date of Termination.

 

2.                                       Disposition.  If, on or after the date of a Change inControl, an Affiliate is sold, merged, transferred or in any other manner orfor any other reason ceases to be an Affiliate or all or any portion of thebusiness or assets of an Affiliate are sold, transferred or otherwise disposedof and the acquiror is not the Company or an Affiliate (a “Disposition”), andyou remain or become employed by the acquiror or an affiliate of the acquiror(as defined in this Agreement but substituting “acquiror” for “Company”) inconnection with the Disposition, you will be deemed to have terminatedemployment on the effective date of the Disposition for purposes of thissection unless (a) the acquiror and its affiliates jointly and severally expresslyassume and agree, in a manner that is enforceable by you, to perform theobligations of this Agreement to the same extent that the Company would berequired to perform if the Disposition had not occurred and (b) theSuccessor guarantees, in a manner that is enforceable by you, payment andperformance by the acquiror.  This Section 2of Article III shall be applied in accordance with Code Section 409Aand the regulations, notices and other guidance of general applicability issuedthereunder.

 

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**ARTICLEIV.**

**INDEMNIFICATION**

 

Following a Change in Control, the Companywill indemnify and reimburse you to the full extent permitted by law and theCompany’s articles of incorporation and bylaws for damages, costs and expenses(including, without limitation, judgments, fines, penalties, settlements andreasonable fees and expenses of your counsel) incurred in connection with allmatters, events and transactions relating to your service to or status with theCompany or any other corporation, employee benefit plan or other entity withwhom you served at the request of the Company.

 

**ARTICLEV.**

**CONFIDENTIALITY**

 

You will not use, other than in connectionwith your employment with the Company, or disclose any Confidential Informationto any person not employed by the Company or not authorized by the Company toreceive such Confidential Information, without the prior written consent of theCompany; and you will use reasonable and prudent care to safeguard and protect andprevent the unauthorized disclosure of Confidential Information. Nothing inthis Agreement will prevent you from using, disclosing or authorizing thedisclosure of any Confidential Information: (a) which is or hereafterbecomes part of the public domain or otherwise becomes generally available tothe public through no fault of yours; (b) to the extent and upon the termsand conditions that the Company may have previously made the ConfidentialInformation available to certain persons; or (c) to the extent that youare required to disclose such Confidential Information by law or judicial oradministrative process.

 

**ARTICLEVI.**

**SUCCESSORS**

 

The Company will seek to have any Successor,by agreement in form and substance satisfactory to you, assent to the fulfillmentby the Company of the Company’s obligations under this Agreement. Failure ofthe Company to obtain such assent at least three business days prior to thetime a Person becomes a Successor (or where the Company does not have at leastthree business days’ advance notice that a Person may become a Successor,within one business day after having notice that such Person may become or hasbecome a Successor) will constitute Good Reason for termination by you of youremployment.  The date on which any such successionbecomes effective will be deemed the Date of Termination and Notice ofTermination will be deemed to have been given on that date.  A Successor has no rights, authority or powerwith respect to this Agreement prior to a Change in Control.

 

**ARTICLEVII.**

**OTHERPROVISIONS**

 

1.                                       BindingAgreement.  ThisAgreement inures to the benefit of, and is enforceable by, you, your personaland legal representatives, executors, administrators, successors, heirs,distributees, devisees and legatees. If you die while any amount would still bepayable to you under this Agreement if you had continued to live, all suchamounts, unless otherwise 

 

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provided in this Agreement,will be paid in accordance with the terms of this Agreement to your devisee,legatee or other designee or; if there be no such designee, to your estate.

 

2.                                       No Mitigation.  You will not be required to mitigate theamount of any payments or benefits the Company becomes obligated to make orprovide to you in connection with this Agreement by seeking other employment orotherwise. The payments or benefits to be made or provided to you in connectionwith this Agreement may not be reduced, offset or subject to recovery by theCompany by any payments or benefits you may receive from other employment orotherwise.

 

3.                                       No Setoff.  The Company has no right to delay or setoffpayments or benefits owed to you under this Agreement against amounts owed orclaimed to be owed by you to the Company under this Agreement or otherwise.

 

4.                                       Taxes.  All payments and benefits to be made orprovided to you in connection with this Agreement will be subject to requiredwithholding of federal, state and local income, excise and employment-relatedtaxes.

 

5.                                       Notices.  For the purposes of this Agreement, noticesand all other communications provided for in, or required under, this Agreementmust be in writing and will be deemed to have been duly given when personallydelivered or when mailed by United States registered or certified mail, returnreceipt requested, postage prepaid and addressed to each party’s respectiveaddress set forth on the first page of this Agreement (provided that allnotices to the Company must be directed to the attention of the chair of theBoard), or to such other address as either party may have furnished to theother in writing in accordance with these provisions, except that notice ofchange of address will be effective only upon receipt.

 

6.                                       Disputes.  If you so elect, any dispute, controversy orclaim arising under or in connection with this Agreement will be settledexclusively by binding arbitration administered by the American ArbitrationAssociation in Minneapolis, Minnesota in accordance with the CommercialArbitration Rules of the American Arbitration Association then ineffect.  Judgment may be entered on thearbitrator’s award in any court having jurisdiction; provided, that you mayseek specific performance of your right to receive payment or benefits untilthe Date of Termination during the pendency of any dispute or controversyarising under or in connection with this Agreement.  The Company will be entitled to seek aninjunction or restraining order in a court of competent jurisdiction (within orwithout the State of Minnesota) to enforce the provisions of Article V ofthis Agreement.

 

7.                                       Jurisdiction.  Except as specifically provided otherwise inthis Agreement, the parties agree that any action or proceeding arising underor in connection with this Agreement must be brought in a court of competentjurisdiction in the State of Minnesota, and hereby consent to the exclusivejurisdiction of said courts for this purpose and agree not to assert that suchcourts are an inconvenient forum

 

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8.                                       RelatedAgreements.  To theextent that any provision of any other Plan or agreement between the Companyand you limits, qualifies or is inconsistent with any provision of thisAgreement, then for purposes of this Agreement, while such other Plan oragreement remains in force, the provision of this Agreement will control andsuch provision of such other Plan or agreement will be deemed to have beensuperseded, and to be of no force or effect, as if such other agreement hadbeen formally amended to the extent necessary to accomplish such purpose.  Nothing in this Agreement prevents or limitsyour continuing or future participation in any Plan provided by the Company andfor which you may qualify, and nothing in this Agreement limits or otherwiseaffects the rights you may have under any Plans or other agreements with theCompany.  Amounts which are vestedbenefits or which you are otherwise entitled to receive under any Plan or otheragreement with the Company at or subsequent to the Date of Termination will bepayable in accordance with such Plan or other agreement.

 

9.                                       No Employmentor Service Contract.  Nothing inthis Agreement is intended to provide you with any right to continue in theemploy of the Company for any period of specific duration or interfere with orotherwise restrict in any way your rights or the rights of the Company, whichrights are hereby expressly reserved by each, to terminate your employment atany time for any reason or no reason whatsoever, with or without cause.

 

10.                                 Funding andPayment.  Benefits payable under thisAgreement will be paid only from the general assets of the Company.  No person has any right to or interest in anyspecific assets of the Company by reason of this Agreement.  To the extent benefits under this Agreementare not paid when due to any individual, he or she is a general unsecuredcreditor of the Company with respect to any amounts due.  The Company with whom you were employedimmediately before your Date of Termination has primary responsibility forbenefits to which you or any other person are entitled pursuant to thisAgreement but to the extent such Company is unable or unwilling to provide suchbenefits, the Company and each other Affiliate are jointly and severallyresponsible therefor to the extent permitted by applicable law.  If you were simultaneously employed by morethan one Company immediately before your Date of Termination, each such Companyhas primary responsibility for a portion of the benefits to which you or anyother person are entitled pursuant to this Agreement that bears the same ratioto the total benefits to which you or such other person are entitled pursuantto this Agreement as your base pay from the Company immediately before yourDate of Termination bears to your aggregate base pay from all such Companies.

 

11.                                 Survival.  The respective obligations of, and benefitsafforded to, the Company and you which by their express terms or clear intentsurvive termination of your employment with the Company or termination of thisAgreement, as the case may be, including without limitation the provisions ofArticles III, IV, V and VI and Sections 3, 4, 5 and 6 of Article VII ofthis Agreement, will survive termination of your employment with the Company ortermination of this Agreement, as the case may be, and will remain in fullforce and effect according to their terms.

 

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**ARTICLEVIII.**

**MISCELLANEOUS**

 

1.                                       Modificationand Waiver.  Noprovision of this Agreement may be modified, waived or discharged unless suchmodification, waiver or discharge is agreed to in a writing signed by you andthe chair of the Board. No waiver by any party to this Agreement at any time ofany breach by another party to this Agreement of, or of compliance with, anycondition or provision of this Agreement to be performed by such party will bedeemed a waiver of similar or dissimilar provisions or conditions at the sameor at any prior or subsequent time. Notwithstanding anything in this Agreement to the contrary, the Companyexpressly reserves the right to amend this Agreement to the extent necessary tocomply with Code Section 409A, as it may be amended from time to time, andthe regulations, notices and other guidance of general applicability issuedthereunder.

 

2.                                       Entire Agreement.  No agreements or representations, oral orotherwise, express or implied, with respect to the subject matter to thisAgreement have been made by any party which are not expressly set forth in thisAgreement.

 

3.                                       Governing Law.  This Agreement and the legal relations amongthe parties as to all matters, including, without limitation, matters ofvalidity, interpretation, construction, performance and remedies, will begoverned by and construed exclusively in accordance with the internal laws ofthe State of Minnesota (without regard to the conflict of laws principles ofany jurisdiction).

 

4.                                       Headings.  Headings are for purposes of convenience onlyand do not constitute a part of this Agreement.

 

5.                                       Further Acts.  The parties to this Agreement agree to perform,or cause to be performed, such further acts and deeds and to execute anddeliver or cause to be executed and delivered, such additional or supplementaldocuments or instruments as may be reasonably required by the other party tocarry into effect the intent and purpose of this Agreement.

 

6.                                       Severability.  The invalidity or unenforceability of all orany part of any provision of this Agreement will not affect the validity orenforceability of the remainder of such provision or of any other provision ofthis Agreement, which will remain in full force and effect.

 

7.                                       Counterparts.  This Agreement may be executed in severalcounterparts, each of which will be deemed to be an original, but all of whichtogether will constitute one and the same instrument.

 

This agreement supersedes and succeeds theCanadian employment agreements signed on August 13, 2009 titled EMPLOYEEOFFER LETTER and the CONFIDENTIALITY, ASSIGNMENT 

 

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AND NON-COMPETITION AGREEMENT.  The Canadian employment agreements will nolonger be of effect between the parties as of the date of effectiveness of thisagreement.

 

If this letter correctly sets forth ouragreement on the subject matter discussed above, kindly sign and return to theCompany the enclosed copy of this letter which will then constitute ouragreement on this subject.

 
| Sincerely, |                                        |
|------------|---------------------------------------------|
|       | VITAL IMAGES, INC.                          |
|       |                                        |   |
|       | By:                                         | /s/ Michael H. Carrel |
|       |                                        |   |
|       | Name:                                       | Michael H. Carrel |
|       |                                        |   |
|       | Title:                                      | President & CEO |
|       |                                        |   |
|       | Agreed to this 25th day of September, 2009. |
|       |                                        |
|       |                                        |
|       | /s/ Aaron Akyuz                             |
|       | Aaron  Erkan Akyuz                          |

 

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