TECHNICAL ASSISTANCE AGREEMENT

Exhibit 10.42

TECHNICAL ASSISTANCE AGREEMENT

THIS TECHNICAL ASSISTANCE AGREEMENT (this “Agreement”) is made and entered into as of this 7th day August of 2002 (the “Effective Date) by and between MedicalCV, Inc. (“MedicalCV”), a Minnesota corporation with a business address at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx Xxxxxxx, Xxxxxxxxx 00000, agreeing to have Xxxxxxx X. Xxxxxxx III, M.D., and individual residing at 0000 Xxxxxxxx Xxxxx, Xxxxx, Xxxxxxxxx 00000 (together with his personal representatives, heirs and assigns, “Xx. Xxxxxxxx”), serve as an independent contractor for MedicalCV, with reference to the following:

RECITALS

Xx. Xxxxxxxx desires to perform, and MedicalCV desires to have Xx. Xxxxxxxx perform, consulting services as an independent contractor to MedicalCV.

AGREEMENT

NOW, THEREFORE, the parties agree as follows:

1. Services and Relationship.  Xx. Xxxxxxxx shall provide technical assistance to MedicalCV relating to the Device, Intellectual Property, Documentation, Know-how and any other present and proposed products of MedicalCV (the “Services”).  The terms “Device,” “Intellectual Property,” “Documentation” and “Know-how” shall have the meanings set forth in that certain Assignment Agreement of even date herewith by and between MedicalCV, SEGMED, INC. and Xx. Xxxxxxxx (the “Assignment Agreement”).  During the term of this Agreement, Xx. Xxxxxxxx shall be self-employed independent contractor with respect to performing services for MedicalCV.  Nothing in this Agreement shall be construed to create a joint venture, partnership, agency, or other similar relationship of any type between Xx. Xxxxxxxx and MedicalCV. Xx. Xxxxxxxx shall have no authority to bind MedicalCV or to contract in its name or to create any liability for MedicalCV.

2. Independent Contactor.   Acting as an independent contractor, Xx. Xxxxxxxx shall perform the Services at MedicalCV’s request, and shall report to MedicalCV’s Chief Executive Officer or an individual designated by MedicalCV’s Chief Executive Officer’s.  Xx. Xxxxxxxx shall make himself available to and provide the Services to MedicalCV on a schedule to be determined by the parties on a periodic basis; provided, however, that Xx. Xxxxxxxx shall provide the Services to MedicalCV for a minimum of three days each calendar quarter.

3. Compensation.  For the Services performed under this Agreement, as described abvove, Xx. Xxxxxxxx shall receive a consulting fee of $1,500 per day ($750 per one-half day); provided, however, that MedicalCV shall pay Xx. Xxxxxxxx a minimum fee of $4,500 each calendar quarter during the Term of this Agreement.  Except as expressly set forth in this Xxxxxxx 0, Xx. Xxxxxxxx shall not be entitled to any payments, reimbursements, or compensation of any kind from MedicalCV for services rendered.

4. Taxes.  Xx. Xxxxxxxx shall be solely responsible for payment of all self-employment taxes and/or assessments imposed on the payment of compensation for the performance of consulting services including without limitation, any unemployment insurance or tax, any federal, state and foreign income taxes, and any federal social security payments (FICA) or Minnesota disability taxes (and shall provide evidence to MedicalCV that such have been paid).

5. Expenses.  Xx. Xxxxxxxx is not authorized to incur any expenses on behalf of MedicalCV without prior written consent of any authorized agent of MedicalCV, and all statements submitted by Xx. Xxxxxxxx for services and expenses shall be in the form prescribed by MedicalCV and shall be approved by MedicalCV’s Chief Executive Officer or an individual designated by MedicalCV’s Chief Executive Officer’s.

6. Insurance.  Xx. Xxxxxxxx shall have in effect a comprehensive general liability insurance covering Xx. Xxxxxxxx and all aspects of Xx. Xxxxxxxx’x provision of consulting services, including, without limitation, if applicable, coverage for workers compensation and Employers Liability in compliance with all applicable statutory regulations.  Xx. Xxxxxxxx shall maintain such insurance with customary coverages in full force and effect for so long as he provides consulting services to MedicalCV, and shall increase the amounts of coverage under the Policy upon the reasonable request of MedicalCV as made from time to time.

7. Conduct.  Xx. Xxxxxxxx agrees to: (i) provide any documentation to MedicalCV and to execute any documents when reasonably requested by MedicalCV which relate to Xx. Xxxxxxxx’x performance of services to MedicalCV during the term of this Agreement or after; and (ii) honor all rules and regulations of MedicalCV and refrain from committing any act or omission inconsistent with MedicalCV’s standard of conduct.

8. Non-Competition and Non-Disclosure.  Xx. Xxxxxxxx hereby acknowledges that he shall be bound by the obligations of Non-Competition and Non-Disclosure set forth in Sections 3.8 and 3.9 of the Assignment Agreement, notwithstanding any termination of this Agreement or the Assignment Agreement.

9. No Solicitation.  Xx. Xxxxxxxx agrees, for the Term of this Agreement, and for a period of eighteen (18) months thereafter, to refrain from soliciting, employing, contracting or interfering with any MedicalCV’s relationships with, or enticing away from MedicalCV, any employee, customer, license, distributor, vendor or other source of supply of MedicalCV.

10. No Breach.  Xx. Xxxxxxxx’x entering into this Agreement and performing the obligations hereunder shall not result in any breach, default or violation of any agreement, charter, instrument or other document to which Xx. Xxxxxxxx is a party of otherwise bound.

11. Return of Materials.  If requested by MedicalCV during the Term of this Agreement or thereafter, Xx. Xxxxxxxx shall promptly return any and all tangible MedicalCV property that has come into Xx. Xxxxxxxx’x possession.  Upon termination of this Agreement for nay reason, Xx. Xxxxxxxx shall, within ten (10) days of such termination and in accordance with any instructions provided by MedicalCV, return to MedicalCV and all tangible MedicalCV property that has come into Xx. Xxxxxxxx’x possession, including all copies thereof and any notes, memoranda, and other documents or other media relating thereto.  Xx. Xxxxxxxx shall not remove any MedicalCV property from MedicalCV premises without written authorization from MedicalCV.  The product of all work performed under this Agreement, including trade secrets, confidential information, any apparatus, device, intellectual property, discoveries, improvements, modifications, and enhancements, techniques, concepts, data, technical information, specifications (including engineering, testing and manufacturing specifications), diagrams, schematics, charts and lists, drawings, lab books, blueprints, works of authorship, mask works, information, materials, tools, computer programs, technical publications, manuals, designs, artwork, devices or models, shall be property of MedicalCV or its nominees, and MedicalCV or its nominees shall have the sole right to use, sell, license, publish or otherwise disseminate or transfer rights of such work products.

12. Material Inside Information.  In the course of performing the obligations hereunder, Xx. Xxxxxxxx recognizes that he may receive certain information that is considered material nonpublic information within the meaning and intent of the Federal and State securities laws, rules and regulations.  Xx. Xxxxxxxx hereby agrees not to engage in any securities trading transactions based upon such information nor disclose any such information to any third party that may or could engage in transactions involving the securities of MedicalCV.

13. Equitable Relief.  Xx. Xxxxxxxx agrees that any breach of the provisions listed in paragraphs 10, 11 and 12 of this Agreement shall result in irreparable harm to MedicalCV.  Xx. Xxxxxxxx therefore agrees that MedicalCV shall have the right to an injunction or other equitable relief to enforce those provisions without prejudice to any others rights and remedies MedicalCV may have.

14. Inventions/Patents.

(a) Xx. Xxxxxxxx shall promptly disclose in writing to MedicalCV complete information concerning each and every invention, discovery, improvement, device, design, apparatus, practice, process, method or product, whether patentable or not, made, developed, perfected, devised, conceived or first reduced to practice by Xx. Xxxxxxxx, either solely or in collaboration with others, during the term of this Agreement and for a period of twelve (12) months thereafter, whether or not during regular working hours, relating either directly or indirectly to the business, products, practices or techniques of MedicalCV (hereinafter referred to as “Developments”).  Xx. Xxxxxxxx, to the extent that he has the legal right to do so, hereby acknowledges that any and all of such Developments are the property of MedicalCV and hereby assigns and agrees to assign to MedicalCV any and all of Xx. Xxxxxxxx’x right, title and interest in and to any and all of such Developments.

(b) The provisions of Section 14(a) shall not apply to any Development meeting the following conditions:

(i) such Development was developed entirely on Xx. Xxxxxxxx’x own time;

(ii) such Development was made without the use of any Company equipment, supplies, facility or trade secret information;

(iii) such Development does not relate (i) directly to the business of MedicalCV, or (ii) to MedicalCV’s actual or demonstrably anticipated research or development; and

(iv) such Development does not result from any work performed by Xx. Xxxxxxxx for MedicalCV.

(c) Upon request and without further compensation therefor, but at no expense to Xx. Xxxxxxxx, and whether during the term of this Agreement or thereafter, Xx. Xxxxxxxx shall do all lawful acts, including, but not limited to, the execution of papers and lawful oaths and the giving of testimony, that in the opinion of MedicalCV, its successors and assigns, may be necessary or desirable in obtaining, sustaining, reissuing, extending and enforcing United States and foreign letters patent, including, but not limited to, design patents, on any and all of such Developments, and for perfecting, affirming and recording MedicalCV’s complete ownership and title thereto, and to cooperate otherwise in all proceedings and matters relating thereto.

(d) Xx. Xxxxxxxx shall keep complete, accurate and authentic accounts, notes, data and records of all Developments in the manner and form requested by MedicalCV.  Such accounts, notes, data

and records shall be the property of MedicalCV, and, upon its request, Xx. Xxxxxxxx shall promptly surrender same to it or, if not previously surrendered upon its request or otherwise, Xx. Xxxxxxxx shall surrender the same, and all copies thereof, to MedicalCV upon the termination of this Agreement.

15. Copyrights.  Xx. Xxxxxxxx shall, without further consideration, assign all right, title and interest in any copyrightable material created in connection with this Agreement to MedicalCV and shall assist MedicalCV and its nominees in every proper way, entirely at MedicalCV’s expense, to secure, maintain and defend for MedicalCV’s own benefit, copyrights and any extensions and renewals thereof on any and all such material including translations thereof in any and all countries, such material to be and to remain the property of MedicalCV whether copyrighted or not.  All materials produced by Xx. Xxxxxxxx under this Agreement shall be considered work made for hire.

16. Warranty/License.  With respect to all subject matter including ideas, processes, designs and methods which Xx. Xxxxxxxx shall disclose or use in the performance of this Agreement: (i) as an independent contractor, Xx. Xxxxxxxx warrants to MedicalCV that Xx. Xxxxxxxx has the right to make disclosure and use thereof without liability to others and that all work performed under this Agreement shall be original work and none of the Services or any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity; (ii) to the extent that Xx. Xxxxxxxx has patent applications, patents or other rights in the subject matter, Xx. Xxxxxxxx herby grants MedicalCV, its subsidiaries and affiliates a royalty-free, irrevocable, world-wide, non-exclusive license to make, have made, sell, use and disclose such subject matter; and (iii) Xx. Xxxxxxxx agrees to hold MedicalCV harmless for use of subject matter which Xx. Xxxxxxxx knows or reasonably should know others have rights in, except, however, for subject matter and the identity of others having rights in subject matter that Xx. Xxxxxxxx discloses to MedicalCV in writing before MedicalCV uses the subject matter.

17. Prevention of Damage.  Xx. Xxxxxxxx further agrees that as to MedicalCV’s protection in connection with the Services, Xx. Xxxxxxxx shall take such steps as may be reasonably necessary to prevent personal injury or property damage during any work hereunder that may be performed by any employees, agents, or subcontractors of Xx. Xxxxxxxx at the location and take all reasonable and necessary actions to ensure that no governmental agency or law, rule or ordinance has been or may be violated in either the manufacture or sale of products or the performance of services covered by this Agreement and shall defend and hold MedicalCV harmless from loss, cost or damages as a result of any such actual or alleged violation.

18. Indemnity.  Xx. Xxxxxxxx shall indemnify and hold harmless MedicalCV from and against:

(a) any and all claims, losses, liability, damages (including legal fees and costs), diminution in value and the like arising from any breach or non-fulfillment of Xx. Xxxxxxxx’x covenants in this Agreement; and

(b) any and all loss, liability, and damages arising from or caused directly or indirectly by any act or omission of Xx. Xxxxxxxx and/or any agents, employees or subcontractors of Xx. Xxxxxxxx.

19. Term; Termination.  This Agreement shall continue for two (2) years and thereafter shall continue on a month-to-month basis (the “Term”).  MedicalCV may terminate this Agreement immediately (i) if MedicalCV shall determine not to pursue commercialization of the Device.  Notwithstanding the foregoing, this Agreement automatically shall terminate upon termination of the Assignment Agreement, subject to the survival of certain provisions as set forth in Section 29 below.

20. Controlling Law.  This Agreement is made under and shall be construed according to the laws of the State of Minnesota applicable to any contract entered into and wholly performed therein except for that body of laws that relates to conflict of law principles.

21. Personal Jurisdiction.  In any judicial proceeding involving a dispute arising from or with respect to this Agreement, Xx. Xxxxxxxx agrees to submit to personal jurisdiction of state and federal courts located in the County of Hennepin, State of Minnesota.

22. No Assignment.  Xx. Xxxxxxxx agrees not to assign or transfer any rights or obligations under this Agreement or any interest herein, voluntarily or involuntarily, without the prior written consent of MedicalCV, which consent may be withheld by MedicalCV in the sole exercise of its discretion, and any such assignment shall be void and of no effect.  MedicalCV shall be free to assign or transfer any of its rights or obligations or any interest herein without Xx. Xxxxxxxx’x prior consent.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns.

23. Invoices/Notices/etc.  All invoices, notices, requests, payments, demands or communications required hereunder shall be in writing and delivered personally or sent by certified mail, return receipt requested, or by an overnight courier service having a reputation for dependability (as of the Effective Date) to the parties at the following addresses:

For Xx. Xxxxxxxx:	For MedicalCV:
0000 Xxxxxxxx Xxxxx	Attn:  Chief Executive Officer
Xxxxx, Xxxxxxxxx 00000	0000 Xxxxx Xxxxxx Xxxxx
	Xxxxx Xxxxx Xxxxxxx, Xxxxxxxxx 00000

24. Severability.  If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, it shall be deemed severable from, and in no way shall affect the validity or enforceability of, the remaining provisions of this Agreement.

25. Amendment.  This Agreement can only be amended or modified in a written document signed by Xx. Xxxxxxxx and MedicalCV.

26. Legal Fees.  Except as expressly provided herein to the contrary, each party shall be responsible for its own legal fees and costs in connection with the transactions described herein.

27. No Presumption.  No presumption shall arise as a result of any party’s involvement in the drafting of this Agreement.

28. No Waiver.  The waiver of either party hereto of a breach of any provisions of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.

29. Survival.  Xx. Xxxxxxxx agrees that the provisions of Sections 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 27, 28, 29 and 30 hereof shall survive termination of this Agreement and shall be fully enforceable thereafter.

30. Entire Agreement.  This Agreement and the Assignment Agreement contain the entire agreement with respect to the subject matter hereof and, except as expressly provided to the contrary,

supersedes all prior oral or written agreements, communications and dealings between Xx. Xxxxxxxx and MedicalCV with respect to the subject matter hereof, all of which are hereby merged into this Agreement.

IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized officers or agents on the date and year first above written.

	MedicalCV, Inc.
	/s/ Xxxxx X. Xxxxxx		/s/ Xxxxxxx X. Xxxxxxxx III, M.D.
	By:  Xxxxx X. Xxxxxx		Xxxxxxx X. Xxxxxxxx III, M.D.
	Its:  Chief Executive Officer
			Social Security Number