**Exhibit 10.38**

 

**TECHNICALASSISTANCE AGREEMENT**

** **

****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 Robert H.Svenson, M.D.,Holland, Patent N.Y. (“Dr. Svenson”), serve as an independentcontractor for MedicalCV, with reference to the following:****

 

****Recitals****

** **

Dr. Svenson desires to perform, and MedicalCVdesires to have Dr. Svenson perform, consulting services as an independentcontractor to MedicalCV following the 120 day period as described in Secion 9.1of the Technology Purchase Agreement to be signed within 30 days of the signingdate of this Agreement.

 

**Agreement**

** **

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

 

****1.********                                      ********Services and Relationship********. ****Dr. Svenson shall provide technicalassistance to MedicalCV 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 herewith byand between MedicalCV, LIGHTWAVE ABLATION SYSTEMS, INC.  and Dr. Svenson.  ****During the term of this Agreement, Dr. Svenson 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. Svenson andMedicalCV.**** ****Dr.Svenson 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. Svenson shall perform theServices at MedicalCV’s request, and shall report to MedicalCV’s ChiefExecutive Officer or an individual designated by MedicalCV’s Chief Executive Officer’s.  Dr. Svenson shall make himself available toand provide the Services to MedicalCV on a schedule to be determined bythe parties on a periodic basis.

 

3.                                       ****Compensation****.  Forthe Services performed under this Agreement, as described above, Dr. Svensonshall receive a consulting fee of $1,100 per day ($550 per one-half day).

 

4.                                       ****Taxes********.****  Dr.Svenson 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 taxes, and any federal socialsecurity payments (FICA) or Minnesota disability taxes (and shall provideevidence to MedicalCV that such have been paid).

 

5.                                       ****Expenses********.****  Dr.Svenson 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. Svenson for services and expenses shall be in the formprescribed by MedicalCV and shall be approved

 

----

 

by MedicalCV’s Chief Executive Officer or an individual designated byMedicalCV’s Chief Executive Officer’s.

 

6.                                          ****Insurance****.  Dr.Svenson shall have in effect a comprehensive general liability insurancecovering Dr. Svenson and all aspects of Dr. Svenson’s provision of consultingservices, including, without limitation, if applicable, coverage for workerscompensation and Employers Liability in compliance with all applicablestatutory regulations.  Dr. Svensonshall maintain such insurance with customary coverages in full force and effectfor so long as he provides consulting services to MedicalCV.

 

7.                                          ****Conduct****.  Dr.Svenson agrees to: (i) provide any documentation to MedicalCV and to executeany documents when reasonably requested by MedicalCV which relate to Dr.Svenson’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****.  Dr.Svenson 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.  TheCompany possesses or will acquire Proprietary Information which is important toits business.  For purposes of thisAgreement, “Proprietary Information” is information that was developed,created, or discovered by the Company, or which became known by, or wasconveyed to the Company, which has commercial value in the Company’sbusiness.  “Proprietary Information”includes, but is not limited to, trade secrets, copyrights, mask works, ideas, techniques,know-how, inventions (whether patentable or not), and/or any other informationof any type relating to 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 dataconcerning any of the foregoing or the Company and its operationsgenerally.  I understand that myemployment creates a relationship of confidence and trust between me and theCompany with respect to Proprietary Information.

 

9.                                       ****No********Solicitation****.  Dr. Svenson 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****.  Dr. Svenson’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. Svenson is a party of otherwise bound.

 

11.                                 ****Return********of********Materials.****  If requested by MedicalCV during the Term ofthis Agreement or thereafter, Dr. Svenson shall promptly return any and alltangible MedicalCV property that has come into Dr. Svenson’s possession.  Upon termination of this Agreement for nayreason, Dr. Svenson 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. Svenson’s possession,including all copies thereof and any notes, memoranda, and other documents orother media relating thereto.  Dr.Svenson 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, 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.

 

12.                                 ****Material Inside Information****.  Inthe course of performing the obligations hereunder, Dr. Svenson 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.Svenson 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.

 

13.                                 ****Equitable********Relief****.  Dr. Svenson agrees that any breach of theprovisions listed in paragraphs 10, 11 and 12 of this Agreement shall result inirreparable harm to MedicalCV.  Dr.Svenson 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.

 

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

 

(a)                                  Dr. Sevenson hereby acknowledges that heshall be bound by the obligations of Improvements set fouth in Section 9.4and of the Technology Agreement pertaining to the Technology and the RestrictedBusiness. Dr. Svenson 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 Dr. Svenson, either solely or in collaboration withothers, during the term of this Agreement and for a period of twelve (12)months thereafter, whether or not during regular working hours, relating to thebusiness, products, practices or techniques of MedicalCV (hereinafter referredto as “Developments”).  Dr. Svenson, tothe extent that he has the legal right to do so, hereby acknowledges that anyand all of such Developments are the property of MedicalCV and hereby assignsand agrees to assign to MedicalCV any and all of Dr. Svenson’s right, title andinterest in and to any and all of such Developments pertaining to theTechnology.

 

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

 

(i)                                     such Development was developed entirely onDr. Svenson’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 Dr. Svensonfor MedicalCV.

 

(c)                                  Upon request and without further compensationtherefor, but at no expense to Dr. Svenson, and whether during the term of thisAgreement or thereafter, Dr. Svenson 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, and tocooperate otherwise in all proceedings and matters relating thereto.

 

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

 

15.                                 ****Copyrights****.  Dr.Svenson 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, 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 Dr. Svenson under this Agreement shall be considered work made forhire.

 

16.                                 ****Prevention********of********Damage****.  Dr. Svenson further agrees that as toMedicalCV’s protection in connection with the Services, Dr. Svenson 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. Svenson 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 andshall defend and hold MedicalCV harmless from loss, cost or damages as a resultof any such actual or alleged violation.

 

17.                                 ****Indemnity****.  Dr.Svenson 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 likearising from any breach or non-fulfillment of Dr. Svenson’s covenants in thisAgreement; and

 

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

 

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.                                 **ControllingLaw**.  This Agreement is made under and shall beconstrued according to the laws of the State of Minnesota applicable to anycontract entered into and wholly performed therein except for that body of lawsthat relates to conflict of law principles.

 

20.                                 **PersonalJurisdiction**.  In any judicial proceeding involving adispute arising from or with respect to this Agreement, Dr. Svenson agrees tosubmit to personal jurisdiction of state and federal courts located in theCounty of Hennepin, State of Minnesota.

 

----

 

21.                                 **No Assignment**.  Dr.Svenson agrees not to assign or transfer any rights or obligations under thisAgreement or any interest herein, voluntarily or involuntarily, without theprior written consent of MedicalCV, which consent may be withheld by MedicalCVin the sole exercise of its discretion, and any such assignment shall be voidand of no effect.  MedicalCV shall befree to assign or transfer any of its rights or obligations or any interestherein without Dr. Svenson’s prior consent. This Agreement shall be binding upon and shall inure to the benefit ofthe parties hereto and their respective permitted successors and assigns.

 

22.                                 **Invoices/Notices/etc**.  Allinvoices, notices, requests, payments, demands or communications requiredhereunder shall be in writing and delivered personally or sent by certifiedmail, return receipt requested, or by an overnight courier service having areputation for dependability (as of the Effective Date) to the parties at thefollowing addresses:

 
| For Dr. Svenson:   | For MedicalCV:                        |
|--------------------|---------------------------------------|
|               |                                  |
| Holland Patent, NY | Attn:  Chief Executive Officer   |
|               | 9725 South Robert Trail               |
|               | Inver Grove Heights,  Minnesota 55077 |

 

23.                                 **Severability**.  Ifany provision of this Agreement shall be unlawful, void, or for any reasonunenforceable, it shall be deemed severable from, and in no way shall affectthe validity or enforceability of, the remaining provisions of this Agreement.

 

24.                               **Amendment**. This Agreement can only be amended or modified in a written documentsigned by Dr. Svenson and MedicalCV.

 

25.                               **Legal Fees**. Except as expressly provided herein to the contrary, each party shall beresponsible for its own legal fees and costs in connection with thetransactions described herein.

 

26.                               **No Presumption**.  Nopresumption shall arise as a result of any party’s involvement in the draftingof this Agreement.

 

27.                               **No Waiver**.  Thewaiver of either party hereto of a breach of any provisions of this Agreementby the other shall not operate or be construed as a waiver of any subsequentbreach of the same provision or any other provision of this Agreement.

 

28.                                 **Survival**.  Dr.Svenson 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, and 29 hereof shall survive termination of this Agreement and shall be fullyenforceable thereafter.

 

29.                                 **EntireAgreement**.  This Agreement and the Assignment Agreementcontain the entire agreement with respect to the subject matter hereof and,except as expressly provided to the contrary, supersedes all prior oral orwritten agreements, communications and dealings between Dr. Svenson andMedicalCV with respect to the subject matter hereof, all of which are herebymerged into this Agreement.

 

----

 

**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/ Robert H. Svenson, M.D. |   |
| By:  Blair P. Mowery          | Robert H. Svenson, M.D. |
| Its:  Chief Executive Officer |                    |
|                               |                    |   |
|                               | Social Security Number  |
|                                    |                         |  |  |

 

----