Exhibit
10.37


 


AMENDMENT
NO. 1 TO


 


VITAL
IMAGES, INC.


AND


TOSHIBA
CORPORATION


 


MARKETING
AND DISTRIBUTION AGREEMENT


 


THIS
AMENDMENT NO. 1 TO MARKETING AND DISTRIBUTION AGREEMENT (the
“Amendment”), is made and entered into this 9th day of January, 2003
by and between Vital Images, Inc., a Minnesota corporation having its principal
place of business at 3300 Fernbrook Lane N., Suite 200, Plymouth, Minnesota
55447 USA (“Vital Images”) and Toshiba Corporation, Medical Systems Company,
having its place of business at 1385, Shimoishigami, Otawara-Shi, Tochigi
324-8550, Japan (“Toshiba”).


 


RECITALS:


 


WHEREAS, Vital
Images and Toshiba previously 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 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 set
forth below.


 


AGREEMENT:


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants and agreements
hereinafter contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:


 


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


 


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


 


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


 


Vital Images
Confidential


 

















 


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


 


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


 


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


 


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


 


(b)                               To
perform the First Level Installation for customers in the Territory with
respect to the Products, and to ensure that only authorized versions of the
Products are installed as supplied by Vital Images for customers in the
Territory.


 


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


 


(c)                                  To
promptly respond to all inquiries or complaints from customers; to provide all
necessary and appropriate First Level Maintenance; and to cooperate with Vital
Images in the provision of the Second Level Maintenance.


 


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


 


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


 


6.                                       Section 3.6 of the Agreement is hereby
amended 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 a
Vital Images representative to Toshiba’s, the Dealer Associate’s or a
customer’s location for providing the First Level Installation, Toshiba or the
Dealer 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 Vital Images agree to send a Vital
Images representative to Toshiba’s, the Dealer Associate’s or a customer’s
location for providing the First Level Installation, the amount paid by Toshiba
or the Dealer Associates for such service shall be negotiated on a case-by-case
basis.


 












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


 


2

















 


7.                                       Section 4.5 of the Agreement is hereby
amended by deleting the second paragraph of said Section 4.5 and replacing it
with the following:


 


Quarterly
Vitreaâ  2 software purchases above the minimums set forth in the Commitment may be
applied to reduce or  satisfy the next
two (2) quarterly purchase commitments, and Toshiba may portion out such excess
purchase amount within such next two (2) quarterly purchase commitments in any
manner it deems appropriate. 
Furthermore, for every one and one-half (1-1/2)  Vitreaâ  2 software purchase orders received from Toshiba or a non-U.S. Dealer
Associate (excluding TMSJ) above the applicable quarterly Commitment,  the quarterly TAMS Commitment shall be
reduced by one (1) Vitreaâ  2 software unit.  Similarly, for
every one (1)  Vitreaâ  2 software purchase order received from TAMS above the applicable quarterly
Commitment, the quarterly non-U.S. (excluding TMSJ) Commitment shall be reduced
by one and one-half (1-1/2)  Vitreaâ  2 software units.


 


8.                                       Section 4.7 of the Agreement is hereby
amended 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 of
the Products shall be directly to Toshiba or the Dealer Associates, and Toshiba
and the Dealer Associates shall then have the sole responsibility for the First
Level Installation of such Products into a customer’s computer system in the
Territory in accordance with the standards and specifications established by
Vital Images from time to time and provided to Toshiba and the Dealer
Associates hereunder.  If the Products
need to be integrated with non-Toshiba equipment, Vital Images will perform the
Second Level Installation, upon request from Toshiba, the Dealer Associates or
the customers at no additional charge to Toshiba, to ensure proper integration.


 


9.                                       Section 5.2 of the Agreement is hereby
amended by deleting said Section 5.2 and replacing 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, Toshiba and/or the Dealer Associates shall use
their reasonable best efforts to provide the First Level Maintenance; provided,
however, that any and all on-site maintenance in the U.S. which is excluded
from First Level Maintenance shall be provided by Vital Images.  If Vital Images requests on-site assistance
from Toshiba or the Dealer Associates in the U.S., such assistance will be
provided at a * discount off of Toshiba’s or the Dealer Associate’s prevailing
labor rates.


 


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


 











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


 


3

















 


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, Toshiba and/or the Dealer Associates shall use their reasonable
best efforts to assist Vital Images in providing the Second Level Maintenance
for the benefit of customers in the Territory.


 


11.                                 Section 5.4 of the Agreement is hereby
amended by substituting “Section 5.3” for “Section 5.2” in the first sentence
thereof.


 


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


 


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


 


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


 


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


 


16.                                 Except as amended hereby, the Agreement shall
remain in full force and effect in accordance with its original terms.  The amended portions of the Agreement shall
be read, wherever reasonable to do so, to be consistent with the portions not
so amended; provided that the amended portions shall be deemed to control and
any conflict shall be resolved in favor of such amended portions.


 


IN WITNESS WHEREOF,
the parties hereto have executed 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

  	
   

  
												



 


4

















 


VITAL IMAGES, INC. AND TOSHIBA
CORPORATION


MARKETING AND
DISTRIBUTION 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)

  	
   

  
	
  Vitreaâ 2

  	
   

  	
  Windows Platform

  	
   

  	
   

  	
  *

  	
   

  	
   

  	
  *

  	
   

  	
   

  	
  *

  	
   

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VScoreÔ
  option

  	
   

  	
  Windows Platform

  	
   

  	
   

  	
  *

  	
   

  	
   

  	
  *

  	
   

  	
   

  	
  *

  	
   

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VScore
  with EKG GateÔ 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

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  



 












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


 


(3)  Prices shown are for one-year maintenance
contracts.  If multi-year contracts are
sold, 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


 












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


 

















 


VITAL IMAGES, INC. AND TOSHIBA
CORPORATION


MARKETING AND DISTRIBUTION AGREEMENT


 


EXHIBIT F


PRODUCT COMMITMENTS


 


Toshiba and/or its Dealer
Associates shall purchase from Vital Images during the twelve (12) month period
ended 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 to Sections 3.2 and 3.3 of this
Agreement shall not be credited against the Commitment.


 












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