TECHNOLOGY LICENSE AGREEMENT BETWEEN SALUMEDICA, LLC AND SPINEMEDICA CORP

EXHIBIT 10.33

EXECUTION COPY

TECHNOLOGY LICENSE AGREEMENT

BETWEEN

SALUMEDICA, LLC

AND

SPINEMEDICA CORP.

This Technology License Agreement (this “License Agreement”) is made effective as of the 12th day of August, 2005 (the “Effective Date”), by and between SALUMEDICA, LLC, a Georgia limited liability company (“Licensor”), and SPINEMEDICA CORP., a Florida corporation (the “Licensee”).

RECITALS:

A. Licensor is the owner of certain intellectual property rights; and

B. Licensee is desirous of obtaining and commercializing these intellectual property rights under the terms set forth below;

NOW THEREFORE, in consideration of ten dollars ($10.00) in hand paid and the promised performance of each of the parties of the terms set forth herein, the parties hereto, intending to be legally bound, mutually agree as follows:

Section 1. Definitions .

1.1 “Flexible Spinal Disc Patents” means patent application listed in Section III of Appendix A and any and all future patent applications, patents, divisions, reissues, provisionals, continuations, continuations-in-part, renewals and extensions thereof or related thereto in the United States and in foreign jurisdictions.

1.2 “Background Technology” means technical and other information in the possession of Licensor that is necessary or convenient to practice the Licensed Patents and that is in the public domain.

1.3 “Confidential Information” means all confidential information and trade secrets in the Field of Use and comprised in, relating to or arising out of the Licensed Patents that is proprietary to Licensor or licensed or otherwise transferred to Licensor by any person or entity and that is not generally known to the public and which is known to Licensor on the date hereof or at any time during the Improvement Cooperation Period. Notwithstanding the foregoing, for purposes of the licenses granted to Licensee herein, Confidential Information shall not include information that Licensor obtains after the Effective Date and which is subject to restrictions on further disclosure that would be breached by a disclosure to Licensee.

1.4 “Effective Date” means the effective date of this License Agreement, as set out above.

1.5 “Field of Use” means all neurological and orthopedic uses, including muscular and skeletal uses, related to the human spine.

1.6 “Improvement Cooperation Period” means that period of time following the Effective Date of this Agreement until the first to occur, in a single or set of related transactions, of (i) the sale of all or substantially all of the assets of either Licensor or Licensee; (ii) a merger or other transaction in which more than fifty (50%) percent of the outstanding voting shares or other voting equity, by whatever name called, of either Licensor or Licensee immediately after such transaction is held by holders who were not holders of such voting equity immediately prior to such transaction; or (iii) in the case of Licensee, the sublicense or assignment of all or substantially all of its rights under this License Agreement.

1.7 “Improvement Patents” means all patents or patent applications disclosing and claiming any Improvements and all future patent applications, patents, divisions, reissues, continuations, continuations-in-part, renewals and extensions validly claiming priority to any of these patents or patent applications.

1.8 “Improvements” means any enhancements, additions, changes, supplements or other improvements to the Licensed Technology, whether or not patentable, that are now existing or otherwise developed by Licensor or Licensee during the Improvement Cooperation Period.

1.9 “Know-How” means all technical and other information, intellectual property or knowledge useful for practicing the Licensed Technology in the Field of Use in the possession of Licensor on the Effective Date or at any time during the Improvement Cooperation Period that is necessary or convenient to practice the Licensed Technology, which is not in the public domain, including, without limitation, concepts, discoveries, data, designs, formulae, ideas, inventions, methods, models, assays, research plans, procedures, processes, designs for experiments and tests and results of experimentation and testing (including results of research or development) processes (including manufacturing processes, specifications and techniques), laboratory records, chemical, clinical, analytical and quality data, trial data, case report forms, data analyses, reports, manufacturing data or summaries and information contained in submissions to and information from regulatory authorities, and includes any rights including copyright, database or design rights protecting any of the foregoing. The fact that an item is known to the public shall not be taken to exclude the possibility that a compilation including the item, or a development relating to the item, is or remains not known to the public. Notwithstanding the foregoing, Know How shall not include information or knowledge that Licensor obtains after the Effective Date subject to restrictions on disclosure or use by third parties.

1.10 “License Agreement” means this Technology License Agreement, as it may be amended from time to time.

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1.11 “Licensed Patents” means (i) Patents Under License, (ii) Owned Patents, and (iii) Licensor’s Improvement Patents.

1.12 “Licensed Product” means any product or device that is developed, manufactured, produced, expressed, used or licensed for use by Licensee, its affiliates, successors or sublicensees, or their contract manufacturers, utilizing the Licensed Technology in the Field of Use.

1.13 “Licensed Technology” means the Licensed Patents, Confidential Information, Know How, and Improvements solely as they relate to the Field of Use, in each and every case.

1.14 “Licensee Indemnitees” has the meaning set forth in Section 6.1.

1.15 “Licensor Indemnitees” has the meaning set forth in Section 6.2.

1.16 “Losses” has the meaning set forth in Section 6.1.

1.17 “Owned Patents” means the patents and patent applications listed in Section II of Appendix A and all future patent applications, patents, divisions, reissues, continuations, continuations-in-part, renewals and extensions thereof or related thereto in the United States and in foreign jurisdictions validly claiming priority to any of these patents and patent applications. The Parties acknowledge that U.S. Patent No. 6,231,605 is a continuation in part of U.S. Patent No. 5,981,826. Although the pending patent applications listed at Section A. II are presently identified as owned by Licensor, it is possible that one or more of the continuation applications may be owned by Georgia Tech Research Corporation (“GTRC”) or may be co-owned by GTRC and Licensor, depending on the claimed subject matter. To the extent that GTRC has any ownership rights to the continuations listed at Section II, Licensor is the exclusive licensee thereof pursuant to the terms of the License Agreement dated March 5, 1997 by and between GTRC and Licensor, as amended from time to time (the “GTRC License”). The Parties agree that if such ownership rights of a continuation patent application or issuing patent should change to be owned in whole or in party by GTRC, then such application or patent shall be deemed to be included under the term “Licensed Patents”.

1.18 “Parties” means Licensor and Licensee, and “Party” means either one of them.

1.19 “Patents Under License” means the patents and patent applications listed in Section I of Appendix A and any and all future patent applications, patents, divisions, reissues, continuations, continuations-in-part, renewals and extensions thereof or related thereto in the United States and elsewhere validly claiming priority to any of these patents and patent applications.

1.20 “Rules” has the meaning set forth in Section 8.6.

1.21 “Practice” means the right in the Field of Use to make, have made, manufacture, have manufactured, use, offer to sell, sell or import Licensed Products.

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1.22 “Third Party” means any person, firm or entity other than the Parties.

1.23 “Unauthorized Activity” means (i) any practice of the Licensed Technology outside of the Field of Use by Licensee or any of its sublicensees or any Third Party claiming by, through, or under Licensee, or any Third Party obtaining intellectual property of Licensor as a result of a breach of the terms of this Agreement by Licensee or any Third Party claiming by, through or under Licensee (all of the foregoing being collectively called “Licensee Third Party”), (ii) any uncured unauthorized disclosure of Confidential Information to any Third Party, or (iii) breach of the contemporaneously executed Trademark License Agreement.

Section 2. License and Assignment; Cooperation in Commercialization; Unauthorized Activity .

2.1 Licensor hereby grants to Licensee an exclusive, fully-paid, worldwide, royalty-free, perpetual (except as expressly herein provided), irrevocable and non-terminable (except as provided in Section 4 of this Agreement and subject to the termination provisions of the GTRC License) license to Practice the Licensed Technology in the Field of Use. Licensor will grant Licensee reasonable access to and the ability to make copies of all Background Technology and Licensed Technology.

2.2 Pursuant to a concurrently executed patent assignment, Licensor has assigned to Licensee all of its right, title and interest (if any) in and to the Flexible Spinal Disc Patents.

2.3 Licensee hereby grants to Licensor an exclusive, fully-paid, royalty-free, irrevocable and non-terminable license to use the Improvements and to practice the Improvement Patents outside the Field of Use for the life of the Improvement Patents.

2.4 Licensor shall not itself, nor shall it directly or knowingly and indirectly assist or consent to any Third Party, to manufacture, have manufactured, market, offer for sale or sell Licensed Products or otherwise practice the Licensed Technology in the Field of Use.

2.5 Licensor shall have the exclusive right and authority, in its own name, to apply for, prosecute and obtain Owned Patents.

2.6 Either party may seek to obtain Improvement Patents in its own name, subject to applicable laws, treaties and regulations.

2.7 During the Improvements Cooperation Period, each party shall meet with the other party on a continuing and regular basis (but no less frequently than quarterly), and shall in good faith discuss and seek to disclose to the other their respective developments and Improvements with respect to the Licensed Technology.

2.8 Licensee shall not itself conduct, nor shall it directly or indirectly assist or consent to any sublicensee or other Third Party to conduct, any Unauthorized Activity during the term of this License Agreement.

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2.9 Each sublicense granted by Licensee shall provide that the sublicense rights exclude any Improvements developed by Licensor after the date of such sublicense agreement.

Each sublicense shall further provide that it is terminable by Licensee upon the occurrence of a breach by sublicensee of the sublicense agreement, after reasonable opportunity to cure such breach.

Section 3. License Fee . In consideration of the license and other rights granted hereby, Licensee shall pay Licensor the following:

3.1 A one-time license fee in the amount of Two Million Five Hundred Thousand ($2,500,000.00) Dollars delivered simultaneously with the execution and delivery of this Agreement by both Parties; and

3.2 During the Improvement Cooperation Period, an annual reimbursement (within 60 days of receipt of invoice) of the reasonable, documented expenses incurred by Licensor in connection with the filing or maintenance of patents relating to the Licensed Patents in countries other than the United States, such annual reimbursement not to exceed Fifty Thousand and 00/100 Dollars ($50,000.00); provided, however, that Licensee shall only reimburse such expenses to the extent that they were incurred in connection with the filing or maintenance of Licensed Patents that can be utilized in the Field of Use.

Section 4. Term of Agreement .

4.1 The term of this License Agreement shall commence on the Effective Date and shall remain in full force for a perpetual term, provided that the license granted hereby shall terminate on a country-by-country basis as to any Licensed Patent or portion thereof upon the expiration thereof in each country, but such expiration shall not affect the license granted hereby with respect to: (i) such Licensed Patent or portion thereof in any country in which such Licensed Patent or portion thereof remains effective; or (ii) the remainder of the life of any Licensed Technology.

4.2 Notwithstanding any other provision hereof, Licensor shall have no right to terminate this License Agreement or the practice of any of Licensee’s rights and licenses hereunder in the event of any breach hereof by Licensee, except only in the event that Licensor obtains a judgment for money damages against Licensee for breach of this License Agreement pursuant to a court order or arbitration award which is not subject to further appeal, and Licensee fails to pay such money damages within ninety (90) days after such order becomes final and nonappealable.

4.3 If Licensee elects to permanently abandon its efforts to commercialize a spinal disc prosthesis using the Licensed Technology, Licensee agrees to provide written notice thereof to Licensor and agrees to negotiate in good faith with Licensor to amend or terminate this License Agreement with respect to such portion of the Licensed Technology that has been permanently abandoned for nominal consideration. If Licensee

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elects to permanently abandon the Flexible Spinal Disc Patents, Licensee agrees to provide written notice thereof to Licensor and agrees to assign such patent(s) to Licensor.

Section 5. Representations and Warranties . Licensor hereby represents and warrants to Licensee that as of the Effective Date:

5.1 Licensor has the full right and power to grant the licenses set forth in Section 2 of this License Agreement;

5.2 Appendix A sets forth an accurate and complete list of all patents and patent applications owned, under license, or otherwise controlled by Licensor that are necessary or convenient to practice the Licensed Technology in the Field of Use.

5.3 Licensor has received no notice of any claims or suits pending and, to Licensor’s knowledge, there are no claims or suits threatened against Licensor challenging Licensor’s ownership of or right to use any of the Intellectual Property, nor, to the knowledge of Licensor, does there exist any basis therefor.

5.4 Licensor has received no notice of any claims or suits against Licensor pending and, to Licensor’s knowledge, there are no claims or suits threatened against Licensor alleging that any of the Licensed Technology infringes any rights of any third parties in the Field of Use, nor, to the knowledge of Licensor, does there exist any basis therefor.

5.5 To the knowledge of Licensor, no person has infringed or is infringing the Licensed