Exhibit 10.18


 


RESEARCH AGREEMENT


 


THIS INTERIM
RESEARCH AGREEMENT (the “Agreement”), made and entered into as of this 23rd day
of December, 2005, is by and between AGA MEDICAL CORPORATION, a Minnesota
corporation (the “Company”), and DR. KURT AMPLATZ (“Researcher”).


 


RECITALS


 


A.          Researcher is the founder of the Company and
was the inventor of the significant technology which constitutes the core of
the Company’s business;


 


B.           Researcher assigned the patents for his
inventions to certain pediatric cardiology medical devices and techniques and
know-how to the Company, including, without limitation, those patents listed on
Exhibit A
attached to this Agreement (“AGA Patents”);


 


C.           The Company has engaged Researcher to provide
research, development and consulting services to Company in the areas of
pediatric and adult cardiology, interventional radiology and surgery and
specifically in the areas related to the AGA Patents (the “Technology”)
pursuant to an Interim Research Agreement between the Company and Researcher
dated May 5, 2005 (the “Prior Agreement”); and


 


D.          The Company and Researcher desire to
terminate the Prior Agreement and
enter into this Agreement pursuant to which Researcher will provide research,
development and consulting services to the Company under the terms and
conditions set forth herein (the “Agreement”).


 


NOW,
THEREFORE, in furtherance of the above Recitals and the mutual benefits to be
gained by the Parties by entering into this Agreement, the Parties agree to the
following terms and conditions:


 


1.)          Recitals.  The above Recitals are
incorporated by reference as if fully set forth herein. Excepting the terms
surviving termination pursuant to Paragraph 11 of the Prior Agreement, the Parties agree that
the Prior Agreement shall be terminated and of no further force and effect upon
the execution of this Agreement.


 


2.)          Scope of Engagement.  Company shall engage Researcher, during the
term of this Agreement, to provide research, animal studies and related
development and consulting services in the field of the Technology (the “Services”).
The Services shall not include the provision of any products or services to any third parties without the express written
consent of the Company.
Researcher and Company agree that the Services will be provided at times and
places convenient to the Researcher; provided, however, the Researcher shall be
reasonably available to the Company at the Facility set forth herein.
Researcher and Company agree that the Services will be accomplished in such a
way as to not interfere with other research and development activities of the
Researcher or the Company. At all times, the Researcher will provide the
Services subject to and in accordance with all applicable governmental laws,
rules, and regulations.


 

















 


3.)            Researcher Expenses and Support.  During
the term of this Agreement, the Company shall provide for the following:


 


(a)           Facility.  The Company will provide space, equipment, supplies,
materials, utilities, insurance, maintenance, repair, cleaning and other
requirements for the provision of a laboratory (the “Facility”) for Researcher
at the Company’s facilities in Golden Valley, Minnesota. Researcher shall
provide the Company with a list of equipment, supplies and materials required
for the Facility, the provision of which shall be subject to the mutual
agreement of the Researcher and the Company. The setup and location of the
Facility shall be subject to the reasonable approval of Researcher. The Company
shall provide any ongoing technology, materials or specialized studies or
animals required by Researcher in the provision of Services in the Facility
subject to the mutual agreement of the Researcher and the Company.


 


(b)           Personnel.  The Company shall provide Researcher with all personnel
services and labor to support Researcher’s provision of Services in operating
the Facility. With the exception of Amplatz, Researcher shall not employ any
other employees or independent contractors in the performance of the Services
herein. It is anticipated that two (2) current employees of the Company
will provide support to Researcher in providing Services in the Facility.
Additional employees or personnel will be added as reasonably required by
Researcher. While supporting the provision of the Services of Researcher to the
best of their abilities, all such support and employees shall be employees of
the Company and subject to the direction of the Company at all times.


 


4.)            Fees and Expenses.


 


(a)           Fees.  For the provision of the Services hereunder, Researcher
shall be paid the sum of Eighteen Thousand Three Hundred Thirty-Three and
33/100ths Dollars ($18,333.33) per month, payable in advance on the first day
of every month during the term of this Agreement.


 


(b)           Reimbursement for
Expenses.   Prior to the
provision of any of the Services hereunder, Researcher shall provide to the
Company all proposed costs and expenses anticipated to be incurred by
Researcher in the performance of the Services and such proposed costs and
expenses shall be subject to review and approval by the Company; and, upon such
review and approval, all costs and expenses incurred by Researcher in the
performance of the Services shall be paid by the Company. All reasonable costs
and expenses incurred by the Researcher in the performance of the Services
without prior review and approval by the Company shall be reimbursed to
Researcher in the discretion of the Company. Proper documentation of all
proposed and/or incurred costs and expenses of the Researcher herein shall be
provided to the Company.


 


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(c)           Other Expenses.  The Company shall reimburse
Researcher for expenses incurred in entering into this Agreement, including reasonable attorneys’ fees and
costs, and providing the Services hereunder.


 


(d)           Royalty.   In exchange for assignment of all of
Researcher’s right, title and interest in and to any and all inventions,
discoveries, designs, concepts, ideas, improvements, modifications or
enhancements to any AGA Patents or relating to or arising out of the Technology
that were conceived by Researcher prior to the date of the Prior Agreement,
including all rights to and registration of patents, trademarks and copyrights therein, whether or not deemed
patentable or copyrightable, from and after January 1, 2006, Researcher
(or Researcher’s heirs, successors or assigns) shall receive quarterly, a
royalty equal to two percent (2%) of the “Net Sales”, as defined in Section 9
hereof, from any commercial embodiments utilizing or otherwise incorporating in
whole or in part the AGA Patents or the Technology that were conceived by
Researcher and/or the Company prior to the date of the Prior Agreement.
Royalties due pursuant to this paragraph shall be paid within thirty (30) days
of the end of the calendar quarter in which the sales occurred and shall be
accompanied by a written report that itemizes the number of units and the
invoice price of the products and calculates the royalty fees due to the
Researcher for that calendar quarter. The Company’s obligation to pay royalties pursuant to this subparagraph
shall survive
termination of this Agreement and shall continue for as long as any device or product utilizing the AGA Patents is sold by
the Company or its affiliates, sublicenses,
successors or assigns. All such products shall be sold and distributed under the name “Amplatzer” or “Amplatz”.
The terms of Paragraph 9(d) shall
apply to intellectual property registration under this Paragraph.


 


5.)          Noncompetition.  During
the term of this Agreement and for eighteen (18) months after the termination
of this Agreement, Researcher shall not, directly or indirectly, whether for
Researcher or for any other person or entity i) own, manage, control,
participate in, consult with, render services for, or in any other manner
engage in any business or enterprise which provides
products or services in the United States competitive with the products and services of the
Company or any of its parent, subsidiary or affiliated entities, or of any
products or services contemplated or subject to active research and development
by any of the entities herein; and ii) undertake any planning the result of
which would otherwise constitute a violation of subparagraph 5i without regard
to the time limitation set forth
herein.


 


6.)          Nonsolicitation.  Each
of Researcher and Amplatz agree that during the term of this Agreement and for a period of twelve (12) months
immediately following the termination of this Agreement, neither Researcher nor Amplatz shall directly or indirectly, either on
behalf of Researcher and/or Amplatz or any other person or entity, (i) solicit,
induce, recruit or encourage any employees of the Company to leave their
employment or attempt to solicit, induce, recruit, encourage or take away
employees of the Company, or (ii) interfere in any manner with the
contractual or employment relationship between the Company and any employee, customer or supplier of the Company or cause any such customer or
supplier to cease doing business with, or reduce the amount of business it does
with the Company.


 


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7.)          Confidential
Information.


 


(a)          For
purposes of this Agreement, “Confidential Information” means any information
received by one Party or its affiliate(s) (the Recipient Party) from
another Party or its affiliate(s) (the Disclosing Party) relating to the
Disclosing Party’s business which is not public, including but not limited to: (a) matters
of a technical nature such as trade secret processes or devices, know-how,
data, formulas, inventions (whether or not patentable or copyrighted),
specifications and characteristics of products or services planned or being
developed, and research subjects, methods and results; (b) matters of a
business nature such as information about costs, profits, pricing, policies,
markets, sales, suppliers, customers, product plans, and business concepts,
plans or strategies; (c) matters of a human resources nature such as
employment policies and practices, personnel, compensation and employee
benefits; and (d) other information of a similar nature not
generally disclosed to the public or readily ascertainable through public
means. Such Confidential Information is the sole property of the Disclosing
Party and constitutes confidential trade secrets of the Disclosing Party, to be
held by the Recipient Party in trust and solely for the Disclosing Party’s own
benefit


 


(b)         Researcher
and the Company agree that, except as reasonably necessary in connection with
the performance of this Agreement, the Recipient Party shall not disclose,
publish, reproduce or make any use of any Confidential Information of the
Disclosing Party without the express written consent of the Disclosing Party.
Confidential Information does not include any information that: (i) enters
the public domain other than by a breach of this Agreement; (ii) becomes
known to the Recipient Party from a documented source other than the Disclosing
Party, other than by the breach of an obligation of confidentiality owed to the
Disclosing Party; (iii) of which the Disclosing Party authorizes the
publication or disclosure in writing; or (iv) as may be required by law to
be disclosed, but the Recipient Party shall first give a minimum of ten (10) days’
prior written notice to the Disclosing Party so that the Disclosing Party may
seek a protective order limiting disclosure or requiring that the information
and/or documents to be disclosed be used only for the purposes for which the
order was issued.


 


(c)          Each
Party will maintain Confidential Information received from the other Party in
confidence, using the same degree of care which it uses to protect its own most
confidential or proprietary information, but no less than a reasonable degree
of care.


 


(d)         No
Party will have any liability for disclosure of Confidential Information to a
court or governmental body if it is required to be disclosed in order to comply
with any statute, governmental regulation, order or decree of a court or other
governmental body; provided however, that reasonable notice is given by the
Party about to comply with such statute, regulation, order or decree to the
other Party, allowing it to oppose disclosure or seek protection for such
Confidential Information.


 


8).          Grant of License to AGA Patents.   Company
hereby grants to Researcher a nonexclusive, nontransferable, royalty-free,
limited license to make and use the inventions


 


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covered by or within the scope of
any AGA Patents in connection with the performance of the Services. Researcher
shall not sell or offer to sell any commercial embodiments of any inventions
covered by the AGA Patents or attempt to sublicense any rights under the AGA
Patents without the express written consent of the Company. This license grant
shall terminate upon termination of this Agreement.


 


9).            Intellectual Property.


 


(a)           AGA Patents and Technology:
Improvements and Inventions.  All right, title and interest to any and all inventions, discoveries,
designs, concepts, ideas, improvements, modifications or enhancements to any
AGA Patents or relating to or arising out of the Technology that are conceived
by Researcher from and after the date of the Prior Agreement, including all
rights to and registration of patents, trademarks and copyrights therein
(hereinafter “Inventions”), whether or not deemed patentable or copyrightable
by Researcher shall be considered works made for hire and shall be assigned by
Researcher to the Company in exchange for continuing royalty payments equal to
three percent (3%) of the Company’s “Net Sales” of any commercial embodiments
utilizing or otherwise incorporating in whole or in part any Inventions (each
an “Inventions Embodiment”). As use herein, “Net Sales” shall mean the gross
revenues received or receivable by Company, its assignees, sublicensees,
successors or its affiliates in respect of sales of Inventions Embodiments to
independent third parties less (i) sales, use, value-added and excise
taxes imposed and paid in respect of sales of Inventions Embodiments and
included in the invoice price, (ii) import and export duties or fees,
shipping and delivery charges, and other out-of-pocket expenses; and (iii) refunds
for customer returns. Royalty fees due pursuant to this paragraph shall be paid
within thirty (30) days of the end of the calendar quarter in which the sales
occurred and shall be accompanied by a written report that itemizes the number
of units and invoice price of the Inventions Embodiments sold, and calculates
the royalty fees due to Researcher for that quarter. The Company obligations to
pay royalties pursuant to this Agreement shall survive termination of this
Agreement and shall continue for as long as any Improvement Embodiment is sold
by the Company or its affiliates, sublicensees, successors or assigns.


 


(b)           Other Inventions. For any and all other inventions,
discoveries, designs, concepts, ideas, improvements, modifications or
enhancements conceived of by Researcher in connection with the provision of
Services during the term of this Agreement that do not relate to or arise out
of the AGA Patents or the Technology (“Other Inventions”). Researcher shall
grant to Company a right of first refusal to license the Other Inventions (an “Offer”).
The Offer shall include a description of the Other Inventions and shall include
a proposed royalty rate. The Company shall have thirty (30) days after receipt
of the Offer to license the Other Inventions on the terms set forth in the
Offer. If the Company fails to exercise its right to license the Other
Inventions within thirty (30) days of receipt of the Offer or fails to enter
into a reasonable written license agreement with Researcher within sixty (60)
days of receipt of the Offer, Researcher will be free to manufacture, market
and sell embodiments of the Other Inventions on its own behalf or contact
others to license the Other Inventions on terms equal to or more advantageous
to


 


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the Researcher than the terms offered to
Company. Researcher may not license or assign any Other Inventions on. terms
more favorable to others than those offered to the Company unless such terms
are first offered to the Company as set forth in this paragraph. In the event  Researcher licenses or assigns any Other
Inventions to any third party, Researcher shall pay to the Company one-half of
all revenue received by Researcher pursuant to the same terms, including
survival, set forth in Paragraph 9(a) herein.


 


(c)          Name.  All Inventions, Inventions Embodiments, Other Inventions and
other devices or products developed by Researcher shall carry the name “Amplatz”
or “Amplatzer” and every license executed pursuant to this Agreement shall so
provide.


 


(d)         Intellectual
Property Registration.  The Company shall take all reasonable and necessary action to protect the
intellectual property associated with the Inventions, Inventions Embodiments,
and Other Inventions to which the Company is entitled to or has exercised its
rights under this Agreement, including proper application and registration of
patents, trademarks, and copyrights thereon. Researcher shall cooperate with
the Company, and shall take all reasonable and necessary action, to assist the
Company to apply for and enforce the Company’s intellectual property rights
herein. The Company shall pay all expenses associated with protecting the
intellectual property set forth in this paragraph incurred by Researcher,
including reasonable attorneys’ fees and costs. Researcher shall maintain
adequate and current written records of all Inventions, Inventions Embodiments,
and Other
Inventions herein during the
term of this Agreement and shall be made available to the Company for review
and copying at all times. If the Company is unable because of Amplatz’ mental
or physical incapacity or for any other reason to secure the Researcher’s or
Amplatz’ signature to apply for or to pursue any application or registration of
patents, trademarks, or copyrights herein, then the Researcher and Amplatz
hereby irrevocably designate and appoint the Company and its duly authorized
officers and agents as the Researcher’s and Amplatz’ agents and attorneys in
fact, to act for and in Researcher’s and Amplatz’ behalf and stead to execute and  file any such applications and to do all
other lawfully permitted acts to further the prosecution and issuance of
letters patent, trademark registrations or copyright registrations thereon with
the same legal force and effect as if executed by the Researcher and Amplatz.


 


10).          Term and Termination. This Agreement shall commence on the date
hereof and
shall terminate five (5) years
after the date hereof, unless previously terminated: (a) upon ninety (90)
days written notice by the Company to Researcher; or (b) immediately upon
a material breach of this Agreement by any Party hereto which is not cured
within ten (10) days written notice to the breaching Party.


 


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11).          Survival. The rights and obligations of Paragraphs 1, 4, 5, 6, 7, 8, and 9 of
this Agreement shall survive and continue after any termination of this
Agreement and will bind the Parties, their legal representatives, successors,
and assigns for the time periods indicated or indefinitely where no time period
is indicated.


 


12).          Relationship. This Agreement shall not render the
Researcher an employee, partner, agent of, or joint venturer with
the Company for any purpose. The Researcher is and will remain an independent
contractor in his relationship to the Company.


 


13).          Successors and Assigns. All of the provisions of this Agreement
shall be binding upon and inure to the benefit of the Parties hereto and their
respective heirs, if any, successors, and permitted assigns.


 


14).          Choice of Law and Venue. ALL DISPUTES, CLAIMS OR CONTROVERSIES
ARISING OUT OF THIS AGREEMENT, OR THE NEGOTIATION, VALIDITY OR PERFORMANCE OF
THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF MINNESOTA WITHOUT REGARD TO ITS RULES OF CONFLICTS OF LAWS. Each
of the Parties hereto hereby irrevocably and unconditionally consents to the
sole and exclusive jurisdiction of the courts of the State of Minnesota, county
of Hennepin, and of the United States of America located in the State of
Minnesota, county of Hennepin (“Minnesota Courts”) for any litigation among the
Parties hereto arising out of or relating to this Agreement, or the negotiation,
validity or performance of this Agreement, and waives any objection to the
laying of venue of any such litigation in the Minnesota Courts and agrees not
to plead or claim in any Minnesota Court that such litigation brought therein
has been brought in any inconvenient forum or that there are indispensable
parties to such litigation that are not subject to the jurisdiction of the
Minnesota Courts.


 


15).          Headings. Paragraph headings are not to be considered a
part of this Agreement and are not intended to be a full and accurate
description of the contents thereof.


 


16).          Waiver. Waiver by one Party hereto of breach of any provision of this Agreement
by the other shall not operate or be construed as a continuing waiver.


 


17).          Assignment. Neither Party shall assign any of its obligations under this Agreement,
or delegate the performance of any of its duties hereunder, without the prior
written consent of the other Party.


 


18).          Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given when personally
delivered or two (2) business days after deposited with the United States
Postal Service, certified or registered mail, postage prepaid, return receipt
requested, or one (1) business day after deposit with a
nationally-recognized overnight delivery service, in each case addressed to the
applicable address set forth on the signature page hereto.


 


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  If to Company:

  	
   

  	
  Franck Gougeon

  
	
   

  	
   

  	
  AGA Medical Corporation

  682 Mendelssohn Avenue

  Golden Valley, MN 55427

  
	
   

  	
   

  	
   

  
	
  With a required copy to:

  	
   

  	
  Peter V. Rother, Esq.

  
	
   

  	
   

  	
  AGA Medical Corporation

  682 Mendelssohn Avenue

  Golden Valley, MN 55427

  
	
   

  	
   

  	
   

  
	
  If to Researcher:

  	
   

  	
  Dr. Kurt Amplatz

  
	
   

  	
   

  	
  10 Evergreen Road

  
	
   

  	
   

  	
  North Oaks, MN 55127

  
	
   

  	
   

  	
   

  
	
  With a required copy to:

  	
   

  	
  Frank I. Harvey, Esq.

  
	
   

  	
   

  	
  Larkin Hoffman Daly &
  Lindgren Ltd.

  1500 Wells Fargo Plaza

  
	
   

  	
   

  	
  7900 Xerxes Avenue South

  
	
   

  	
   

  	
  Minneapolis, MN 55431-1194

  
	
   

  	
   

  	
  Attorney for Researcher and
  Amplatz

  



 


19).          Modification or
Amendment. No amendment,
change or modification of this Agreement shall be valid unless in writing
signed by the Parties hereto.


 


20).          Entire Understanding. This document and any exhibit attached
constitutes the entire understanding and agreement of the Parties, and any and
all prior agreements, understandings, and representations are hereby terminated
and canceled in their entirety and are of no further force and effect.


 


21).          Unenforceability of Provisions. If any provision of this Agreement, or any
portion thereof, is held to be invalid and unenforceable, then the remainder of
this Agreement shall nevertheless remain in full force and effect.


 


22).          Counterparts. This Agreement may be executed in several
counterparts, all of which together shall constitute one and the same
agreement.


 


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IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of the day and year
first above written.


 


	
  COMPANY:

  	
   

  	
  RESEARCHER:

  
	
  AGA MEDICAL CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   /s/ Franck Gougeon

  	
   

  	
   /s/ Kurt Amplatz

  
	
   

  	
  Franck Gougeon

  	
   

  	
  Dr. Kurt Amplatz

  
	
  Its:

  	
  President

  	
   

  	
   

  



 


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