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TECHNOLOGY TRANSFER AND LICENSE AGREEMENT
by and between
Security Life of Denver Insurance Company
ING North America Insurance Corporation
and
Scottish Re (U.S.), Inc.
Dated as of December 31, 2004
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TABLE OF CONTENTS
Page
Section 1.
Definitions........................................................2
Section 2. Owned Principally-Used Computer
Programs...........................2
Section 3. Owned Generally Used
Programs......................................4
Section 4. Licensed Computer
Programs.........................................4
Section 5. Data and
Databases.................................................5
Section 6. Recapture of Retroceded
Business...................................5
Section 7.
Improvements.......................................................6
Section 8. Further
Actions....................................................7
Section 9. Representations and
Warranties.....................................7
Section 10.
Indemnity..........................................................8
Section 11.
Arbitration........................................................9
Section 12. Delivery By
Sellers...............................................10
Section 13. Other Computer
Programs...........................................10
Section 14. Equitable
Rights..................................................11
Section 15.
Term..............................................................11
Section 16.
Miscellaneous.....................................................11
Schedules
Schedule 4 Assumed Computer
Programs
Schedule 7 Improvements
Schedule 13 Approved Desktop
Software
This TECHNOLOGY
TRANSFER AND LICENSE AGREEMENT (this "Agreement"), dated as
of December 31, 2004 (the "Effective
Date"), is entered into by and between
Security Life of Denver Insurance Company,
an insurance company formed and doing
business under the laws of the state of
Colorado and maintaining its principal
offices at 1290 Broadway, Denver, CO 80203,
ING North America Insurance
Corporation, a corporation formed and doing
business under the laws of the state
of Delaware and maintaining its principal
offices at 5780 Powers Ferry Road NW,
Atlanta, GA 30327 ("Sellers") and Scottish
Re (U.S.), Inc. an insurance company
formed and doing business under the laws of
the state of Delaware and
maintaining its principal offices at 13840
Ballantyne Corporate Place, Suite 500
Charlotte, NC 28277 ("Purchaser").
W I T N E S S E T H:
WHEREAS,
Security Life of Denver Insurance Company and Security Life of
Denver International Limited, on the one
hand, and Scottish Re Group Limited and
Scottish Re (U.S.), Inc., on the other
hand, have entered into that certain
Asset Purchase Agreement, dated October 17,
2004 (hereinafter, the "Asset
Purchase Agreement; and
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WHEREAS, the
execution and delivery of this Agreement is a condition
precedent to the parties' obligation to
consummate the transactions contemplated
by the Asset Purchase Agreement;
NOW, THEREFORE,
in consideration of the representations, warranties,
covenants, conditions and agreements set
forth in this Agreement, and other good
and valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, the parties hereby agree as
follows:
Section 1.
Definitions. All capitalized terms used but not defined herein
shall have the meanings ascribed to them in
the Asset Purchase Agreement.
Section 2. Owned
Principally-Used Computer Programs.
(a) Subject to
the retention of certain rights by Sellers pursuant to
Sections 2(a)(iii) and 2(b) below, Sellers
hereby sell, assign, transfer and
convey to Purchaser all of Sellers' right,
title and interest in and to the
Owned Principally-Used Computer Programs,
as set forth in Schedule 3.13(a) of
the Asset Purchase Agreement, and any
Improvements (as defined herein) as they
exist as of the Closing.
(i) The foregoing sale, assignment, transfer and conveyance in
Section
2(a) expressly excludes the following SAGE components as enumerated
on
said Schedule 3.13(a) to the Asset Purchase Agreement: (A) IMR
Framework Tools of CGI Information Systems & Management
Consultants,
Inc. ("CGI") and e-WAM tools from Wyde Corporation ("Wyde")
(together,
the "SAGE Tools"), which SAGE Tools shall be deemed Assumed
Computer
Programs as described in Section 4 hereof, and (B) those portions
of
SAGE created prior to September 15, 2002 owned by CGI (the
"Licensed
SAGE Portions" and, together with the SAGE Tools, the "CGI SAGE
Components"), which Licensed SAGE Portions shall not be deemed
Assumed
Computer Programs hereunder, as to which Sellers have rights
under
certain licenses as set forth on Schedule 1.1(a) to the Asset
Purchase
Agreement, as amended (the "CGI Licenses").
(ii) Each of the Sellers hereby assigns to Purchaser (A) all of
its
rights and benefits in, and to the use of, the CGI SAGE
Components,
together with any and all related documentation and supporting
material, howsoever derived and (B) all of its rights in the
CGI
Licenses.
(iii) Purchaser acknowledges that Sellers may retain rights from
CGI
and Wyde with respect to use of the CGI SAGE Components or may
enter
into a new license with CGI or Wyde with respect to use of the
CGI
SAGE Components. In either event, Sellers agree that (A) neither
the
rights retained by Sellers (or any one of them) nor any new
license
with respect to the use of the CGI SAGE Components shall diminish
or
otherwise derogate from rights granted to Purchaser hereunder or
under
the Asset Purchase Agreement to use the CGI SAGE Components in
the
same manner as used by or for Sellers prior to the Closing Date
and
(B) Sellers will not take any action (including without
limitation
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breaching the CGI Licenses) that will diminish or otherwise
derogate
from rights granted to Purchaser hereunder or under the Asset
Purchase
Agreement to use the CGI SAGE Components in the same manner as used
by
or for Sellers prior to the Closing Date.
(b) Sellers
hereby retain, and Purchaser hereby grants to Sellers, a
worldwide, fully paid up, royalty-free,
perpetual, non-exclusive license to use,
execute, reproduce, display, perform,
sublicense, distribute solely within
Sellers and their Affiliates, modify, and
create derivative works of (to include
any revision, modification, translation,
abridgment, condensation, expansion or
compilation) the Owned Principally-Used
Computer Programs (excluding the CGI
SAGE Components) solely for (i) internal
use by Sellers and any Affiliate of
Sellers and (ii) use in connection with
providing services to Purchaser pursuant
to the Transition Services Agreement (the
"Sellers' License"). In no event shall
Sellers (or any of their Affiliates or
successors) sublicense, distribute or
display the Owned Principally-Used Computer
Programs or any significant portion
thereof (other than the SAGE Tools) to any
third parties, other than consultants
who are assisting Sellers, any Affiliate of
Sellers or any successor of Sellers,
in connection with the relevant Computer
Programs, provided that such
consultants have executed written
confidentiality agreements containing
limitations on use and disclosure
substantially similar to those in the
Confidentiality Agreement. Purchaser shall
have no duty hereunder to deliver
software or documentation to Sellers in
support of this grant of Sellers'
License; provided, that upon the reasonable
request of Sellers, at Sellers'
expense, Purchaser shall provide Sellers
with a copy of any of the Owned
Principally-Used Computer Programs as the
same existed on the Effective Date.
(c) Purchaser
hereby disclaims any and all liability with respect to the
Owned Principally-Used Computer Programs
licensed to Sellers under the Sellers'
License, including without limitation
liability arising out of or resulting from
any representations or warranties as to the
Owned Principally-Used Computer
Programs, including without limitations any
representations or warranties that
the Owned Principally-Used Computer
Programs will be uninterrupted or error free
or will operate in combination with any
other software programs or data. The
Sellers' License for the Computer Programs
described in Section 2(b) above is
provided "AS IS" as of the Closing Date.
Purchaser expressly disclaims all
representations or warranties as to the
Computer Programs licensed to Sellers
under the Sellers' License, including
without limitation representations or
warranties that the Computer Programs
licensed pursuant to such Sellers' License
will be uninterrupted or error free or will
operate in combination with any
other software programs or data.
(d) Sellers
covenant to Purchaser that, at and after the Closing Date,
Sellers (and their Affiliates and
successors) shall exercise any license that
they have in the Licensed SAGE Portions
(whether such license is independently
obtained from CGI or otherwise retained in
accordance with Section 2(a)(iii))
solely for (i) internal use by Sellers and
any Affiliate and (ii) use in
connection with providing services to
Purchaser pursuant to the Transition
Services Agreement. In no event shall
Sellers (or any of their Affiliates or
successors) sublicense, distribute or
display SAGE, or any component thereof
(including Licensed SAGE Portions), to
third parties, other than consultants who
are assisting Sellers or any Affiliate or
successors of Sellers in connection
with the relevant Computer Programs,
provided that such consultants have
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executed written confidentiality agreements
containing limitations on use and
disclosure substantially similar to those
in the Confidentiality Agreement.
(e) Sellers
shall promptly notify Purchaser if Sellers learn of or receive
notice that any third party is infringing
any of the Owned Principally-Used
Programs or any Implemented Improvements
(as defined in Section 7(b) of this
Agreement) licensed hereunder, if any, and
shall provide reasonable cooperation
to Purchaser, at Purchaser's expense, in
the investigation and prosecution
(either civil or criminal) of any claims
related thereto.
Section 3. Owned
Generally Used Programs.
(a) Sellers
hereby grant to Purchaser a worldwide, royalty-free, fully paid
up, non-exclusive, perpetual, irrevocable,
unrestricted license to use, execute,
reproduce, display, perform, sublicense,
distribute, modify, and create
derivative works of (to include any
revision, modification, translation,
abridgement, condensation, expansion or
compilation) the Owned Generally-Used
Computer Programs, if any.
(b) Sellers
shall retain ownership of and unrestricted rights in the Owned
Generally-Used Computer Programs, if any,
subject to the license to Purchaser
granted in Section 3(a).
Section 4.
Licensed Computer Programs.
(a) Sellers
represent and warrant, as of the Closing, that (i) the
applicable Seller or Affiliate of Sellers
is licensee of each of the Licensed
Computer Programs, as set forth in Schedule
3.13.(c) of the Asset Purchase
Agreement and (ii) they have obtained the
consent of each licensor of the
Licensed Computer Programs to permit
Sellers to assign the relevant Licensed
Computer Program License to Purchaser or
its designee. Those Licensed Computer
Programs for which sufficient consents have
been obtained by Sellers to assign
the licenses for such Licensed Computer
Programs are hereby duly assigned to
Purchaser and shall be termed herein
"Assumed Computer Programs" and are set
forth on Schedule 4 hereto. Purchaser
hereby assumes and agrees to perform, and
shall be bound by all of the obligations
of, and restrictions on the "licensee"
under, each of the Licensed Computer
Program Licenses relating to the Assumed
Computer Programs.
(b) Purchaser
acknowledges that, to the extent permitted by each Assumed
Computer Program license agreement or
pursuant to a written consent from the
applicable "licensor," Sellers will retain
the right to access, use and execute
the Assumed Computer Programs, subject to
the following limitations:
(i) Purchaser hereby disclaims any and all liability with respect
to
the Assumed Computer Programs that are the subject of such
rights
retained by Sellers, including without limitation liability
arising
out of or resulting from any representations or warranties as to
the
Assumed Computer Programs that are the subject of such rights
retained
by Sellers hereunder, including without limitations any
representations or warranties that the Assumed Computer Programs
will
be uninterrupted or error free or will operate in combination with
any
other software programs or data.
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(ii) Sellers shall abide by the terms of each applicable
Assumed
Computer Program license.
(iii) Purchaser shall not incur any incremental charge by reason
of
Sellers' use of any Assumed Computer Program.
(iv) Sellers shall be fully liable for any and all breaches of
the
Licensed Computer Program Licenses relating to the Assumed
Computer
Programs attributable to the acts or omissions of Sellers, except
for
any such acts or
omissions of Sellers related to the performance of
the Transition Services (as defined in the Transition Services
Agreement) taken at the request or direction of Purchaser, for
which
Purchaser shall be solely liable.
Purchaser shall have no duty hereunder to
deliver software or documentation to
Sellers in support of Sellers' retained
rights; provided, that upon the
reasonable request of Sellers, at Sellers'
expense, Purchaser shall provide
Sellers with a copy of the same as it
existed on the Effective Date.
Section 5. Data and Databases.
(a) Subject to
Section 5(b) below, Sellers hereby sell, assign, transfer
and convey to Purchaser all of Sellers'
right, title and interest in and to the
Databases and Data.
(b) The
foregoing sale, assignment, transfer and conveyance in Section
5(a)
is subject to the Sellers' right to retain
a single instance of the Data and the
Databases as they exist as of the Closing
Date. With respect to any Data the use
of which is subject to a contract or
license assigned by Sellers to Purchaser
pursuant to the Asset Purchase Agreement,
Sellers shall only retain such Data to
the extent such retention is permitted by
such contract or license. Sellers
shall retain any such instance of the Data
and Databases solely (i) for internal
use by Sellers and each Affiliate of
Sellers and (ii) to provide services to
Purchaser and its Affiliates under the
terms of the Transition Services
Agreement. In no event shall Sellers (or
any of their Affiliates or successors)
sublicense, distribute or display the Data
or Databases to any third parties,
other than consultants who are assisting
Sellers, any Affiliate of Sellers or
any successor of Sellers, in connection
with the relevant Data or Databases,
provided that such consultants have
executed written confidentiality agreements
containing limitations on use and
disclosure substantially similar to those in
the Confidentiality Agreement. Except as
set forth in the Asset Purchase
Agreement or pursuant to Section 6 below,
Purchaser shall have no duty hereunder
to deliver all or any part of the Data or
any Database; provided, that upon the
reasonable request of Sellers, at Sellers'
expense, Purchaser shall provide
Sellers with a copy of the same as it
existed on the Effective Date.
Section 6. Recapture of Retroceded
Business.
(a) Purchaser
shall maintain the Data and Databases which continue to be
relevant to the Business (including any
additions, deletions and modifications
thereto) (i) in a manner consistent with
Purchaser's then-current practices in
maintaining other data relevant to the
Business, (ii) in a manner substantially
in accordance with industry standards and
(iii) in a
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manner that permits its segregation from
other data unrelated to the Business
for purposes of transitioning the Business
to Sellers in accordance with Section
6(c) hereof in the event that Sellers
terminate the Administrative Services
Agreement in connection with a recapture of
the Covered Insurance Contracts
pursuant to the Reinsurance Agreements.
Purchaser shall take such other actions
as may reasonably be necessary from time to
time to ensure that the Data and
Databases are preserved so that they may be
available for purposes of
transitioning the Business to Sellers in
accordance with Section 6(c) hereof in
the event of such a recapture of the
Business.
(b) Purchaser
shall comply with all Legal Requirements, and those
regulatory and contractual requirements of
Sellers and their Affiliates
applicable to the Business immediately
prior to the Closing, with regard to
confidential information included in the
Data or Databases, for so long as the
retroceded business remains subject to
recapture by Sellers.
(c) In the event
Sellers terminate the Administrative Services Agreement in
connection with a recapture of the Covered
Insurance Contracts pursuant to the
Reinsurance Agreements, and subject to any
thi
