Exhibit 10.44


 


AMENDMENT NO. 2 TO


MARKETING
AND DISTRIBUTION AGREEMENT


BETWEEN


VITAL
IMAGES, INC.


AND


TOSHIBA
MEDICAL SYSTEMS CORPORATION


 


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


 


RECITALS:


 


WHEREAS, Vital
Images 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 Amendment
No. 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 Amendment
provides 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 Toshiba
Corporation’s medical equipment and system business including its rights and
obligations relating thereto, and Vital Images confirms such succession through
signing this Amendment; and


 


WHEREAS, Vital Images and  Toshiba now desire to extend the term of the Agreement to
December 31, 2004 and amend certain terms of the Agreement retroactively
effective as of October 1, 2003 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 Section 1.10, such new sections to read as follows:


 

















 


1.10                           Floating License. 
“Floating License” shall mean one software license for a Product which
instead of being restricted to one (1) access point (i.e., a computer
workstation), can be used at more than one (1) access point, provided that such
use shall be restricted to one access point at a time.


 


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of the First Amendment is hereby rescinded.


 


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


 


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the First Amendment is hereby rescinded.


 


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 in the Territory, for the First Level Installation in the United
States, and for the First Level Installation 
and First Level Maintenance outside the United States.


 


6.                                       Section 3.3 of the Agreement is hereby
amended by adding the following new paragraph at the end of said
Section 3.3:


 


In
addition, 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 latest
version of the Products solely for use at four (4) mutually agreed-upon
customer sites (“National Show Sites”) in the Territory for purposes of
referrals and business development, provided that such customers do not already
have software licenses for the Products, and subject to the Terms and
Conditions for the Demonstration License attached hereto as Exhibit D.  Vital Images also agrees to provide Toshiba
and/or its Dealer Associates with such update or upgrade releases of the
Products as would be provided to their customers pursuant to Vital Images’
standard software maintenance program, free of charge, during the term of these
National Show Site licenses.  It is
understood and agreed that the National Show Sites are expected by Vital Images
to become “clinical collaborators” pursuant to Vital Images’ standard
collaboration agreement.


 


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


 


Toshiba and its
Dealer Associates assume full responsibility for all its own costs and expenses
incurred in carrying out its obligations under this Agreement, including but
not limited to all rents, salaries, commissions, advertising, 


 


2

















 


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


 


8.                                       Article 3 of the Agreement is hereby
amended by adding new Section 3.7, such new section to read as
follows:


 


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 latest
version of the Products solely for their own clinical support uses, subject to
the Terms and Conditions for the Demonstration License attached hereto as Exhibit
D.  Three (3) of the clinical support
licenses shall be available for use in the U.S., and two (2) of the clinical
support licenses shall be available for use outside the United States.  Vital Images also agrees to provide Toshiba
and/or its Dealer Associates with such update or upgrade releases of the
Products as would be provided to their customers pursuant to Vital Images’
standard software maintenance program, free of charge, during the term of these
clinical support licenses.  Toshiba
hereby acknowledges and agrees that these licenses will be solely for the
internal use of Toshiba and/or its Dealer Associates and shall not be used at
any time by or for their customers.


 


9.                                       Section 4.5 of the Agreement is hereby
amended by deleting the words “(excluding TMSJ)” in the second and third
sentences of the second paragraph.


 


10.                                 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 to
customers outside the United States. 
Vital Images shall provide First Level Maintenance to customers within
the United States.  If Vital Images
requests on-site assistance from Toshiba or TAMS in the United States, such
assistance will be provided at a *% discount off of Toshiba’s or TAMS’
prevailing labor rates.


 












*                 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

















 


11.                                 Section 6.1 of the Agreement is hereby
amended by adding the following new paragraph at the end of said
Section 6.1:


 


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


 


12.                                 Section 8.1(c) of the Agreement is
hereby amended by deleting said Section 8.1(c) and replacing it with the
following:


 


8.1(c)  Warranty Extension.  Replacement or correction of all or any part
of the Products does not extend the Warranty Period, which shall begin on the
delivery date.  Notwithstanding the
foregoing, and notwithstanding Section 8.1(a) above, in the event that the
Products have been installed on a hardware platform which has been recommended
by 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 issues
defined in the customer’s warranty claim have been resolved.  Vital Images and its third party licensors
expressly disclaim any commitment to provide maintenance or support of the
Products beyond the Warranty Period, in the absence of entering into a separate
software maintenance arrangement with Vital Images and except to the extent
stated in Section 5.1 for the 6-month post warranty grace period.
Furthermore, the Products are derived from and include software from third
party licensors, who make no warranty, express or implied, regarding the
Products, who disclaim any and all liability for the Products and who will not
undertake to provide any information or support regarding the Products.


 


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


 


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


 


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


 


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


 


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


 


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


 


4

















 


19.                                 Vital
Images hereby confirms and agrees to Toshiba’s succession to all of Toshiba
Corporation’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, as
amended by the First Amendment, 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.


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]


 


5

















 


IN WITNESS WHEREOF, the parties hereto have
executed 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

  
									



 


6

















 


VITAL IMAGES, INC. AND TOSHIBA
MEDICAL SYSTEMS CORPORATION


MARKETING AND
DISTRIBUTION AGREEMENT


 


EXHIBIT A


PRODUCTS


 


 


Vitreaâ
2


 


VScoreÔ


 


VScore with EKG GateÔ


 


VScore with AutoGateÔ


 


3D
Angiography Option


 


CT Colonography Option


 


Automated Vessel Measurements Option


 


CT Perfusion Option


 


CT Cardiac Option with CFA


 


CT Cardiac Option with CFA and
Peripheral Vessel Probe Option


 


Peripheral Vessel Probe Option


 


Fusion 7D OptionTM


 


ImageChecker LN 500 OptionTM


 


ImageChecker LN 1000 OptionTM


 


Upgrade from ImageChecker LN
500TM  to ImageChecker LN 1000TM


 


Bone Mineral Analysis Option


 

















 


VITAL IMAGES, INC. AND TOSHIBA
MEDICAL SYSTEMS CORPORATION


MARKETING AND
DISTRIBUTION AGREEMENT


 


EXHIBIT C 


LIST OF DEALER ASSOCIATES


 


	
  Company Name

  	
   

  	
  MAIN COUNTRY

  	
   

  	
  Address

  
	
  *

  	
   

  	
  *

  	
   

  	
  *

  



 












*                 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
MEDICAL SYSTEMS CORPORATION


MARKETING AND
DISTRIBUTION AGREEMENT


 


EXHIBIT E


PRODUCT PRICE LIST (EFFECTIVE FROM
OCTOBER 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

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  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

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  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)

  	
   

  	
  *

  	
   

  	
   

  	
   

  



 

















 












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


 


(4)   The charge for additional access points
applies for each access point in excess of the one (1) access point covered by
the base Vitreaâ 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)

  	
   

  	
  *

  	
   

  	
  *

  	
   

  



 












*                 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 fifteen (15) month
period 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 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.