**Exhibit 10.40**

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**TECHNICAL ASSISTANCE AGREEMENT**

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****THIS******TECHNICAL ASSISTANCE****AGREEMENT**********(this “Agreement”) is made and entered into as of this 15thday of June 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 AdelMikhail, Ph.D., (“Dr. Mikhail”) an individual residing at 2332 West 111thStreet, Bloomington Minnesota 55431 serve as an independent contractor forMedicalCV, with reference to the following:****

 

****RECITALS****

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Dr. Mikhail desires to perform, and MedicalCVdesires to have Dr. Mikhail perform, consulting services as an independentcontractor to MedicalCV.

 

**AGREEMENT**

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

 

****1.********                                      ********Services and Relationship********. ****Dr. Mikhail shall provide advise, counsel andtechnical assistance to MedicalCV relating to business operations, regulatorydocumentation, and technical planning and any other present and proposedproducts of MedicalCV (the “Services”) as requested by the Board or CEO.  ****During the term of this Agreement, Dr. Mikhail shallbe self-employed independent contractor with respect to performing services forMedicalCV. ****Nothingin this Agreement shall be construed to create a joint venture, partnership,agency, or other similar relationship of any type between Dr. Mikhail andMedicalCV.**** ****Dr.Mikhail shall have no authority to bind MedicalCV or to contract in its name orto create any liability for MedicalCV.

 

****2.********                                      ********Independent Contactor********.****  Acting as an independent contractor, Dr. Mikhail shall perform theServices at MedicalCV’s request, and shall report to MedicalCV’s ChiefExecutive Officer or an individual designated by MedicalCV’s Chief ExecutiveOfficer’s.  Dr. Mikhail shall makehimself available to and provide the Services to MedicalCV on aschedule to be determined by the parties on a periodic basis; provided,however, that Dr. Mikhail shall provide the Services to MedicalCV for 40 hoursof consulting services per month.  Dr. Mikhailagrees to complete any consulting or projects assigned to him at his own placeof business or such other location as the Company shall reasonably specify andat his own discretion, will reasonably determine the number of hours requiredand manner of performance.  Dr. Mikhailmay elect to render the consulting services directly or by contract throughMedica Nova, Inc., a corporation controlled by Dr. Mikhail.

 

3.                                       ****Compensation****.  Forthe Services performed under this Agreement, as described above, Dr. Mikhailshall receive a consulting fee of $6.000 per month.  Consulting services beyond 40 hours per month must be priorapproved by the CEO or an individual designated by the CEO.  For additional service beyond 40 hours permonth, MedicalCV shall pay Dr. Mikhail $125 per hour up to a maximum of $1,000per day.  The Company also agrees toreimburse Dr. Mikhail for all reasonable travel, lodging, meals and otherexpenses related to out-of-town travel or entertainment related to suchconsulting services, in accordance with the Company’s standard reimbursementpolicies.

 

4.                                       ****Taxes********.****  Dr.Mikhail shall be solely responsible for payment of all self-employment taxesand/or assessments imposed on the payment of compensation for the performanceof consulting services including without limitation, any unemployment insuranceor tax, any federal, state and foreign income

 

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taxes, and any federal social securitypayments (FICA) or Minnesota disability taxes (and shall provide evidence toMedicalCV that such have been paid).

 

5.                                       ****Expenses********.****  Dr.Mikhail is not authorized to incur any expenses on behalf of MedicalCV withoutprior written consent of any authorized agent of MedicalCV, and all statementssubmitted by Dr. Mikhail for services and expenses shall be in the form prescribedby MedicalCV and shall be approved by MedicalCV’s Chief Executive Officer or anindividual designated by MedicalCV’s Chief Executive Officer’s.

 

6.                                       ****Insurance****.  Dr.Mikhail shall have in effect a comprehensive general liability insurancecovering Dr. Mikhail and all aspects of Dr. Mikhail’s provision of consultingservices, including, without limitation, if applicable, coverage for workerscompensation and Employers Liability in compliance with all applicablestatutory regulations.  Dr. Mikhailshall maintain such insurance with customary coverages in full force and effectfor so long as he provides consulting services to MedicalCV, and shall increasethe amounts of coverage under the Policy upon the reasonable request ofMedicalCV as made from time to time.

 

**7.****                                      ******Conduct****.  Dr.Mikhail agrees to: (i) provide any documentation to MedicalCV and to executeany documents when reasonably requested by MedicalCV which relate to Dr.Mikhail’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.                                       ****No********Breach****.  Dr. Mikhail’s entering into this Agreementand performing the obligations hereunder shall not result in any breach,default or violation of any agreement, charter, instrument or other document towhich Dr. Mikhail is a party of otherwise bound.

 

9.                                       ****Return********of********Materials.****  If requested by MedicalCV during the Term ofthis Agreement or thereafter, Dr. Mikhail shall promptly return any and alltangible MedicalCV property that has come into Dr. Mikhail’s possession.  Upon termination of this Agreement for nayreason, Dr. Mikhail shall, within ten (10) days of such termination and in accordancewith any instructions provided by MedicalCV, return to MedicalCV and alltangible MedicalCV property that has come into Dr. Mikhail’s possession,including all copies thereof and any notes, memoranda, and other documents orother media relating thereto.  Dr.Mikhail shall not remove any MedicalCV property from MedicalCV premises withoutwritten authorization from MedicalCV. The product of all work performed under this Agreement, including tradesecrets, confidential information, any apparatus, device, intellectualproperty, discoveries, improvements, modifications, and enhancements,techniques, concepts, data, technical information, specifications (includingengineering, testing and manufacturing specifications), diagrams, schematics,charts and lists, drawings, lab books, blueprints, works of authorship, maskworks, information, materials, tools, computer programs, technicalpublications, manuals, designs, artwork, devices or models, shall be propertyof MedicalCV or its nominees, and MedicalCV or its nominees shall have the soleright to use, sell, license, publish or otherwise disseminate or transferrights of such work products.

 

10.                                 ****Material Inside Information****.  Inthe course of performing the obligations hereunder, Dr. Mikhail recognizes thathe may receive certain information that is considered material nonpublicinformation within the meaning and intent of the Federal and State securitieslaws, rules and regulations.  Dr.Mikhail hereby agrees not to engage in any securities trading transactionsbased upon such information nor disclose any such information to any thirdparty that may or could engage in transactions involving the securities ofMedicalCV.

 

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11.                                 ****Equitable********Relief****.  Dr. Mikhail agrees that any breach of theprovisions listed in paragraphs 10, 11 and 12 of this Agreement shall result inirreparable harm to MedicalCV.  Dr.Mikhail therefore agrees that MedicalCV shall have the right to an injunctionor other equitable relief to enforce those provisions without prejudice to anyothers rights and remedies MedicalCV may have.

 

12.                                 ****Inventions****/****Patents****.

 

(a)                                  Dr. Mikhail shall promptly disclose inwriting to MedicalCV complete information concerning each and every invention,discovery, improvement, device, design, apparatus, practice, process, method orproduct, whether patentable or not, made, developed, perfected, devised,conceived or first reduced to practice by Dr. Mikhail, either solely or incollaboration with others, during the term of this Agreement and for a periodof twelve (12) months thereafter, whether or not during regular working hours,relating either directly or indirectly to the business, products, practices ortechniques of MedicalCV (hereinafter referred to as “Developments”).  Dr. Mikhail, to the extent that he has thelegal right to do so, hereby acknowledges that any and all of such Developmentsare the property of MedicalCV and hereby assigns and agrees to assign toMedicalCV any and all of Dr. Mikhail’s right, title and interest in and to anyand all of such Developments.

 

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

 

(i)                                     such Development was developed entirely onDr. Mikhail’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 (i) directly to the business ofMedicalCV, or (ii) to MedicalCV’s actual or demonstrably anticipated researchor development; and

 

(iv)                              such Development does not result from any work performed by Dr. Mikhailfor MedicalCV.

 

(c)                                  Upon request and without further compensationtherefor, but at no expense to Dr. Mikhail, and whether during the term of thisAgreement or thereafter, Dr. Mikhail shall do all lawful acts, including, butnot limited 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 andenforcing United States and foreign letters patent, including, but not limitedto, design patents, on any and all of such Developments, and for perfecting,affirming and recording MedicalCV’s complete ownership and title thereto, andto cooperate otherwise in all proceedings and matters relating thereto.

 

(d)                                 Dr. Mikhail 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, Dr. Mikhail shall promptly surrender same to it or, if notpreviously surrendered upon its request or otherwise, Dr. Mikhail shallsurrender the same, and all copies thereof, to MedicalCV upon the terminationof this Agreement.

 

13.                                 ****Copyrights****.  Dr.Mikhail shall, without further consideration, assign all right, title andinterest 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,

 

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maintain and defend for MedicalCV’s ownbenefit, copyrights and any extensions and renewals thereof on any and all suchmaterial including translations thereof in any and all countries, such materialto be and to remain the property of MedicalCV whether copyrighted or not.  All materials produced by Dr. Mikhail underthis Agreement shall be considered work made for hire.

 

14.                                 ****Warranty****/****License****.  With respect to all subject matter includingideas, processes, designs and methods which Dr. Mikhail shall disclose or usein the performance of this Agreement: (i) as an independent contractor, Dr.Mikhail warrants to MedicalCV that Dr. Mikhail has the right to make disclosureand use thereof without liability to others and that all work performed underthis Agreement shall be original work and none of the Services or anydevelopment, use, production, distribution or exploitation thereof willinfringe, misappropriate or violate any intellectual property or other right ofany person or entity; (ii) to the extent that Dr. Mikhail has patentapplications, patents or other rights in the subject matter, Dr. Mikhail herbygrants MedicalCV, its subsidiaries and affiliates a royalty-free, irrevocable,world-wide, non-exclusive license to make, have made, sell, use and disclosesuch subject matter; and (iii) Dr. Mikhail agrees to hold MedicalCV harmlessfor use of subject matter which Dr. Mikhail knows or reasonably should knowothers have rights in, except, however, for subject matter and the identity ofothers having rights in subject matter that Dr. Mikhail discloses to MedicalCVin writing before MedicalCV uses the subject matter.

 

15.                                 ****Prevention********of********Damage****.  Dr. Mikhail further agrees that as toMedicalCV’s protection in connection with the Services, Dr. Mikhail shall takesuch steps as may be reasonably necessary to prevent personal injury orproperty damage during any work hereunder that may be performed by anyemployees, agents, or subcontractors of Dr. Mikhail at the location and takeall reasonable and necessary actions to ensure that no governmental agency orlaw, rule or ordinance has been or may be violated in either the manufacture orsale of products 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.

 

16.                                 ****Indemnity****.  Dr.Mikhail 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 fromany breach or non-fulfillment of Dr. Mikhail’s covenants in this Agreement; and

 

(b)                                 any and all loss, liability, and damagesarising from or caused directly or indirectly by any act or omission of Dr.Mikhail and/or any agents, employees or subcontractors of Dr. Mikhail.

 

17.                                 ****Term; Termination********.****  ThisAgreement  shall continue on amonth-to-month basis for a period of 12 months (the “Term”). from the date ofacceptance by both parties.  However,MedicalCV or Dr. Mikhail  may terminatethis Agreement at any time with 60 days written notification

 

18.                                 **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.

 

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

 

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20.                                 **No Assignment**.  Dr. Mikhail agrees not to assign or transferany 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 itsdiscretion, and any such assignment shall be void and of no effect.  MedicalCV shall be free to assign ortransfer any of its rights or obligations or any interest herein without Dr.Mikhail’s prior consent.  This Agreementshall be binding upon and shall inure to the benefit of the parties hereto andtheir respective permitted successors and assigns.

 

21.                                 **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 Dr. Mikhail:              | For MedicalCV:                        |
|-------------------------------|---------------------------------------|
|                          |                                  |
| 2332 West 111th  Street       | Attn:  Chief Executive Officer   |
| Bloomington, Minnesota  55431 | 9725 South Robert Trail               |
|                          | Inver Grove Heights,  Minnesota 55077 |

 

22.                                 **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.

 

23.                                 **Amendment**.  This Agreement can only be amended ormodified in a written document signed by Dr. Mikhail and MedicalCV.

 

24.                                 **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.

 

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

 

26.                                 **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.

 

27.                                 **Survival**.  Dr. Mikhail agrees that the provisions ofSections 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 fullyenforceable thereafter.

 

28.                                 **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 Dr.Mikhail and MedicalCV with respect to the subject matter hereof, all of whichare hereby 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/ Adel A. Mikhail, Ph.D. |   |
|   | By:  Blair P. Mowery          | Adel A. Mikhail, Ph.D. |
|   | Its:  Chief Executive Officer |                   |
|   |                               |                   |   |
|   |                               | Social Security Number |
|        |                                    |                        |  |  |

 

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