**Exhibit10.39**

 

**TECHNICALASSISTANCE AGREEMENT**

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****THIS******TECHNICAL ASSISTANCE****AGREEMENT**********(this “Agreement”) is made and entered into as of this 7thday August of 2003 (the “Effective Date) by and between MedicalCV, Inc.(“MedicalCV”), a Minnesota corporation with a business address at 9725 SouthRobert Trail, Inver Grove Heights, Minnesota 55077, agreeing to have GregoryBrucker, (“Brucker”), serve as an independent contractor for MedicalCV, withreference to the following:****

 

****Recitals****

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Brucker desires to perform, and MedicalCV desires tohave Brucker perform, consulting services as an independent contractor toMedicalCV following the 120 day period as described in Secion 9.1 of theTechnology Purchase Agreement to be signed within 30 days of the signing dateof this Agreement.

 

**Agreement**

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**NOW,THEREFORE,** theparties agree as follows:

 

****1.********                                      ********Services and Relationship********. ****Brucker shall provide technical assistance toMedicalCV relating to the Product and Technology, Intellectual Property,Documentation and Know-how of MedicalCV (the “Services”).  The terms “Product”, “Technology,”“Intellectual Property,” “Documentation” and “Know-how” shall have the meaningsset forth in the certain Technology Purchase Agreement to be signed within 30days of this Agreement herewith by and between MedicalCV, Inc.,  LIGHTWAVE ABLATION SYSTEMS, INC. andBrucker.  ****During the term of this Agreement,Brucker shall be a self-employed independent contractor with respect toperforming services for MedicalCV. ****Nothingin this Agreement shall be construed to create a joint venture, partnership,agency, or other similar relationship of any type between Brucker andMedicalCV.**** ****Bruckershall have no authority to bind MedicalCV or to contract in its name or tocreate any liability for MedicalCV.

 

****2.********                                      ********Independent Contactor********.****  Acting as an independent contractor, Brucker shall perform the Servicesat MedicalCV’s request, and shall report to MedicalCV’s Chief Executive Officeror an individual designated by MedicalCV’s Chief Executive Officer.  Brucker shall make himself available to andprovide the Services to MedicalCV on a schedule to be determined by theparties on a periodic basis.

 

3.                                       ****Compensation****.  Forthe Services performed under this Agreement, as described above, Brucker shallreceive a consulting fee of $ 900 per day ($450 per one-half day).

 

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

 

5.                                       ****Expenses********.**** Brucker is not authorized to incur any expenses on behalf of MedicalCVwithout prior written consent of any authorized agent of MedicalCV, and allstatements submitted by Brucker for services and expenses shall be in the formprescribed by MedicalCV and shall be approved by MedicalCV’s Chief ExecutiveOfficer or an individual designated by MedicalCV’s Chief Executive Officer’s.

 

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6.                                       ****Insurance****. Brucker shall have in effect a comprehensive general liability insurancecovering Brucker and all aspects of Brucker’s provision of consulting services,including, without limitation, if applicable, coverage for workers compensationand Employers Liability in compliance with all applicable statutoryregulations.  Brucker shall maintainsuch insurance with customary coverages in full force and effect for so long ashe provides consulting services to MedicalCV.

 

**7.****                                      ******Conduct****. Brucker agrees to: (i) provide any documentation to MedicalCV and toexecute any documents when reasonably requested by MedicalCV which relate toBrucker’s performance of services to MedicalCV during the term of thisAgreement or after; and (ii) honor all rules and regulations of MedicalCV andrefrain from committing any act or omission inconsistent with MedicalCV’sstandard of conduct.

 

****8.********                                      ********Non-Competition and Non-Disclosure****. Brucker hereby acknowledges that he shall be bound by the obligations ofNon-Competition and Non-Disclosure set forth in Sections 9.2 and 9.3 of theTechnology Purchase Agreement. The Company possesses or will acquireProprietary Information which is important to its business.  For purposes of this Agreement, “ProprietaryInformation” is information that was developed, created, or discovered by theCompany, or which became known by, or was conveyed to the Company, which hascommercial value in the Company’s business. “Proprietary Information” includes, but is not limited to, tradesecrets, copyrights, mask works, ideas, techniques, know-how, inventions(whether patentable or not), and/or any other information of any type relatingto designs, configurations, toolings, documentation, recorded data, schematics,source code, object code, works of authorship, mechanisms, research,manufacture, improvements, assembly, installation, marketing, forecasts,pricing, customers, and/or cost or other financial data concerning any of theforegoing or the Company and its operations generally.  I understand that my employment creates arelationship of confidence and trust between me and the Company with respect toProprietary Information.

 

****9.********                                      ********No********Solicitation****.  Brucker agrees, for the Term of thisAgreement, and for a period of eighteen (18) months thereafter, to refrain fromsoliciting, employing, contracting or interfering with any MedicalCV’srelationships with, or enticing away from MedicalCV, any employee, customer,license, distributor, vendor or other source of supply of MedicalCV.

 

****10.********                                ********No********Breach****.  Brucker’s entering into this Agreement andperforming the obligations hereunder shall not result in any breach, default orviolation of any agreement, charter, instrument or other document to whichBrucker is a party of otherwise bound.

 

11.                                 ****Return********of********Materials.****  If requested by MedicalCV during the Term ofthis Agreement or thereafter, Brucker shall promptly return any and alltangible MedicalCV property that has come into Brucker’s possession.  Upon termination of this Agreement for nayreason, Brucker shall, within ten (10) days of such termination and inaccordance with any instructions provided by MedicalCV, return to MedicalCV andall tangible MedicalCV property that has come into Brucker’s possession,including all copies thereof and any notes, memoranda, and other documents orother media relating thereto.  Bruckershall not remove any MedicalCV property from MedicalCV premises without writtenauthorization from MedicalCV.  Theproduct 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 andmanufacturing 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, andMedicalCV or its nominees shall have the sole right to use, sell, license,publish or otherwise disseminate or transfer rights of such work products.

 

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****12.********                                ********Material Inside Information****.  Inthe course of performing the obligations hereunder, Brucker recognizes that hemay receive certain information that is considered material nonpublicinformation within the meaning and intent of the Federal and State securitieslaws, rules and regulations.  Bruckerhereby agrees not to engage in any securities trading transactions based uponsuch information nor disclose any such information to any third party that mayor could engage in transactions involving the securities of MedicalCV.

 

****13.********                                ********Equitable********Relief****.  Brucker agrees that any breach of theprovisions listed in paragraphs 10, 11 and 12 of this Agreement shall result inirreparable harm to MedicalCV.  Bruckertherefore agrees that MedicalCV shall have the right to an injunction or otherequitable relief to enforce those provisions without prejudice to any othersrights and remedies MedicalCV may have.

 

****14.********                                ********Inventions****/****Patents****.

 

(a)                                  Brucker hereby acknowledges that he shall bebound by the obligations of Improvements set fouth in Section 9.4 and ofthe Technology Agreement pertaining to the Technology and the RestrictedBusiness. Brucker shall promptly disclose in writing to MedicalCV completeinformation concerning each and every invention, discovery, improvement,device, design, apparatus, practice, process, method or product, whetherpatentable or not, made, developed, perfected, devised, conceived or firstreduced to practice by Brucker, either solely or in collaboration with others,during the term of this Agreement which pertain to the Restricted Business andfor a period of twelve (12) months thereafter, whether or not during regularworking hours, relating to the business, products, practices or techniques ofMedicalCV (hereinafter referred to as “Developments”).  Brucker, to the extent that he has the legalright to do so, hereby acknowledges that any and all of such Developments arethe property of MedicalCV and hereby assigns and agrees to assign to MedicalCVany and all of Brucker’s right, title and interest in and to any and all ofsuch Developments pertaining to the Technology.

 

(b)                                 The provisions of Section 14(a) shallnot apply to any Development meeting the following conditions:

 

(i)                                     such Development was developed entirely onBrucker’s own time;

 

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

 

(iii)                               such Development does not relate directly to the Technology as definedin the TPA; and

 

(iv)                              such Development does not result from any work performed by Brucker forMedicalCV.

 

(c)                                  Upon request and without further compensationtherefor, but at no expense to Brucker, and whether during the term of thisAgreement or thereafter, Brucker shall do all lawful acts, including, but notlimited to, the execution of papers and lawful oaths and the giving oftestimony, that in the opinion of MedicalCV, its successors and assigns, may benecessary or desirable in obtaining, sustaining, reissuing, extending and enforcingUnited States and foreign letters patent, including, but not limited to, designpatents, on any and all of such Developments, and for perfecting, affirming andrecording MedicalCV’s complete ownership and title thereto, and to cooperateotherwise in all proceedings and matters relating thereto.

 

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(d)                                 Brucker shall keep complete, accurate andauthentic accounts, notes, data and records of all Developments in the mannerand form requested by MedicalCV.  Suchaccounts, notes, data and records shall be the property of MedicalCV, and, uponits request, Brucker shall promptly surrender same to it or, if not previouslysurrendered upon its request or otherwise, Brucker shall surrender the same,and all copies thereof, to MedicalCV upon the termination of this Agreement.

 

****15.********                                ********Copyrights****. Brucker shall, without further consideration, assign all right, titleand interest in any copyrightable material created in connection with thisAgreement to MedicalCV and shall assist MedicalCV and its nominees in everyproper way, entirely at MedicalCV’s expense, to secure, maintain and defend forMedicalCV’s own benefit, copyrights and any extensions and renewals thereof onany and all such material including translations thereof in any and allcountries, such material to be and to remain the property of MedicalCV whethercopyrighted or not.  All materialsproduced by Brucker under this Agreement shall be considered work made forhire.

 

****16.********                                ********Prevention********of********Damage****.  Brucker further agrees that as toMedicalCV’s protection in connection with the Services, Brucker shall take suchsteps as may be reasonably necessary to prevent personal injury or propertydamage during any work hereunder that may be performed by any employees,agents, or subcontractors of Brucker at the location and take all reasonableand necessary actions to ensure that no governmental agency or law, rule orordinance has been or may be violated in either the manufacture or sale ofproducts or the performance of services covered by this Agreement and shalldefend and hold MedicalCV harmless from loss, cost or damages as a result ofany such actual or alleged violation.

 

****17.********                                ********Indemnity****. Brucker shall indemnify and hold harmless MedicalCV from and against:

 

(e)                                  any and all claims, losses, liability,damages (including legal fees and costs), diminution in value and the likearising from any breach or non-fulfillment of Brucker’s covenants in thisAgreement; and

 

(f)                                    any and all loss, liability, and damagesarising from or caused directly or indirectly by any act or omission of Bruckerand/or any agents, employees or subcontractors of Brucker.

 

****18.********                                ********Term; Termination********.****  ThisAgreement shall continue for one (1) year and thereafter shall continue on amonth-to-month basis (the “Term”). MedicalCV may terminate this Agreement immediately (i) if MedicalCVshall determine not to pursue commercialization of the Product.  Notwithstanding the foregoing, thisAgreement automatically shall terminate upon termination of the TechnologyPurchase Agreement, subject to the survival of certain provisions as set forthin Section 28 below.

 

19.**                                ****Controlling Law**.  This Agreement is made underand shall be construed according to the laws of the State of Minnesotaapplicable to any contract entered into and wholly performed therein except forthat body of laws that relates to conflict of law principles.

 

20.**                                ****Personal Jurisdiction**.  In any judicial proceedinginvolving a dispute arising from or with respect to this Agreement, Bruckeragrees to submit to personal jurisdiction of state and federal courts locatedin the County of Hennepin, State of Minnesota.

 

21.**                                ****No Assignment**.  Brucker agrees not to assign or transfer anyrights or obligations under this Agreement or any interest herein, voluntarilyor involuntarily, without the prior written consent of MedicalCV, which consentmay be withheld by MedicalCV in the sole exercise of its discretion, and anysuch assignment shall be void and of no effect.  MedicalCV shall be free to assign or transfer any of its

 

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rights or obligations or any interest herein without Brucker’s priorconsent.  This Agreement shall bebinding upon and shall inure to the benefit of the parties hereto and theirrespective permitted successors and assigns.

 

22.**                                ****Invoices/Notices/etc**.  All invoices, notices,requests, payments, demands or communications required hereunder shall be inwriting and delivered personally or sent by certified mail, return receiptrequested, or by an overnight courier service having a reputation fordependability (as of the Effective Date) to the parties at the followingaddresses:

 
| For Brucker:          |   | For MedicalCV:                        |
|-----------------------|--------|---------------------------------------|
|                  |   |                                  |
| 5029 Garfield Ave.So. | Attn:  | Chief Executive Officer               |
| Mpls, MN 55419        |   | 9725 South Robert Trail               |
|                  |   | Inver Grove Heights,  Minnesota 55077 |

 

23.**                                ****Severability**.  If any provision of this Agreement shall beunlawful, void, or for any reason unenforceable, it shall be deemed severablefrom, and in no way shall affect the validity or enforceability of, theremaining provisions of this Agreement.

 

24.**                                ****Amendment**.  This Agreement can only be amended or modifiedin a written document signed by Brucker and MedicalCV.

 

25.**                                ****Legal Fees**.  Except as expressly provided herein to thecontrary, each party shall be responsible for its own legal fees and costs inconnection with the transactions described herein.

 

26.**                                ****No Presumption**.  No presumption shall arise asa result of any party’s involvement in the drafting of this Agreement.

 

27.**                                ****No Waiver**.  The waiver of either party hereto of abreach of any provisions of this Agreement by the other shall not operate or beconstrued as a waiver of any subsequent breach of the same provision or anyother provision of this Agreement.

 

28.**                                ****Survival**.  Brucker agrees that the provisions ofSections 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 27, 28,and 29 hereof shall survive termination of this Agreement and shall be fullyenforceable thereafter.

 

29.**                                ****Entire Agreement**.  This Agreement and theAssignment Agreement contain the entire agreement with respect to the subjectmatter hereof and, except as expressly provided to the contrary, supersedes allprior oral or written agreements, communications and dealings between Bruckerand MedicalCV with respect to the subject matter hereof, all of which arehereby merged into this Agreement.

 

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**IN WITNESS WHEREOF,** the parties have executed this Agreement bytheir duly authorized officers or agents on the date and year first abovewritten.

 

 
|   | **MedicalCV,  Inc.**               |                   |
|--------|------------------------------------|------------------------|
|   |                               |                   |
|   |                               |                   |
|   | /s/ Blair P. Mowery                |                   | /s/ Gregory Brucker |   |
|   | By:  Blair P. Mowery          | Gregory Brucker        |
|   | Its:  Chief Executive Officer |                   |
|   |                               |                   |   |
|   |                               | Social Security Number |
|        |                                    |                        |  |  |

 

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