--------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------
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 ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("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
i
--------------------------------------------------------------------------------
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
Page 2
--------------------------------------------------------------------------------
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
Page 3
--------------------------------------------------------------------------------
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.
Page 4
--------------------------------------------------------------------------------
(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
Page 5
--------------------------------------------------------------------------------
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 third party restrictions and any
required third party consents, Purchaser shall grant to Sellers such licenses to
current versions of all computer programs (including any Computer Programs),
databases (including any Databases) and data (including any Data) solely for the
purpose of, and only to the extent necessary for, administering the Business
during the period of such recapture. Purchaser and Sellers shall cooperate in
any transition of the Business from Purchaser to Sellers in the event of such
recapture, and Purchaser shall share equally all costs of soliciting and
securing any necessary consents from third parties with interests in the
relevant computer programs (including any Computer Programs), databases
(including any Databases) and data (including any Data).
Section 7. Improvements.
(a) Schedule 7 hereto lists certain projects undertaken by Sellers prior to
October 17, 2004 to improve or enhance the performance or utility of certain
Computer Programs for which there is demonstrable work product that is
identified by Sellers to Purchaser on Schedule 7 (collectively, "Improvements").
Purchaser may elect, in its sole discretion and for its benefit, to continue to
develop one or more Improvements. In no event shall any modifications to the
Computer Programs made by or on behalf of Purchaser that are not identified on
Schedule 7 and for which there is not demonstrable work product prior to October
17, 2004 be deemed "Improvements."
(b) If, within the one year period following the date hereof, Purchaser
completes any such Improvement (with completion being deemed to occur upon the
commencement of the use of any such Improvement in a production environment) (an
"Implemented Improvement"), Purchaser shall (i) provide Sellers with a copy of
such Implemented Improvement in machine readable form, on media in use by
Purchaser at the time, and (ii) grant a license for such Implemented Improvement
to Sellers on the same terms as set forth in Sections 2(b) and 2(c) above and
subject to the conditions of 2(e); provided, however, that in no event shall
Purchaser be required to provide such a copy or such a license if Purchaser's
licenses with third parties would prohibit (either implicitly or explicitly)
Purchaser from providing such a copy or such a license. This section 7(b) shall
not (A) bind any third party purchaser or assignee of the Computer Programs to
which the Improvements relate, unless such purchaser or assignee is an
Page 6
--------------------------------------------------------------------------------
Affiliate of Purchaser, or (B) encumber Purchaser's right to sell, assign,
transfer or otherwise convey the same to any third party that is not an
Affiliate of Purchaser.
Section 8. Further Actions. At the reasonable request of either party from
time to time, the other party shall use commercially reasonable efforts to
deliver such materials or copies, execute and deliver such documents, take such
actions, make such statements, or deliver or file such materials, or to cause
any Affiliate of such party to do the same, as may be necessary to record,
perfect, establish, memorialize or enforce any disposition of property
documented herein.
Section 9. Representations and Warranties.
(a) Sellers hereby represent and warrant as follows:
(i) The Owned Generally-Used Computer Programs, if any, and the Owned
Principally-Used Computer Programs materially comply with their
written specifications (if any) and do not contain back doors, Trojan
horses, viruses, worms, drop dead devices, time bombs, malware or
spyware, or other software routines or hardware components designed to
permit unauthorized access, or to disable or erase software, hardware
or data, or to perform similar other actions;
(ii) Sellers have the authority and any and all necessary consents
(copies of which have been provided to Purchaser) to assign to
Purchaser the CGI Licenses and Sellers rights in the CGI SAGE
Components;
(iii) Sellers have the authority and any and all necessary consents
(copies of which have been provided to Purchaser) to assign to
Purchaser hereunder the licenses for the Assumed Computer Programs;
(iv) All Data and the Databases are owned or legally possessed by
Sellers, and Sellers have authority to transfer their rights in and to
the Data and the Databases and the use thereof to Purchaser on the
terms described herein;
(v) Sellers (A) have all rights necessary to (x) use, execute,
reproduce, display, perform, sublicense, create derivative works of
(to include any revision, modification, translation, abridgment,
condensation, expansion or compilation) or otherwise exercise rights
in SAGE as it exists as of the Closing, as Sellers have historically
done in the Business, (y) access and use the SAGE source code, as
Sellers have historically accessed and used the same in the Business
and (z) modify or create derivative works from (to include any
revision, modification, translation, abridgment, condensation,
expansion or compilation) SAGE as Sellers have historically done in
the Business and (B) have not violated any of the CGI Licenses by
virtue of the modifications made to SAGE by Sellers or access to or
use of SAGE source code by Sellers prior to the Closing; and
(vi) Purchaser's continued exercise of the rights described in Section
9(a)(v) following the Closing shall not violate any right or infringe
any intellectual property rights of any third party.
Page 7
--------------------------------------------------------------------------------
(b) Except as expressly set forth herein or in the Asset Purchase
Agreement, NEITHER PARTY MAKES OR RECEIVES ANY WARRANTIES, EXPRESS, IMPLIED, OR
STATUTORY CONCERNING THE OWNED PRINCIPALLY-USED COMPUTER PROGRAMS, OWNED
GENERALLY-USED COMPUTER PROGRAMS, LICENSED COMPUTER PROGRAMS, DATA AND
DATABASES, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF TITLE,
MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
Section 10. Indemnity.
(a) Indemnification by Sellers. Sellers agree to indemnify and hold
harmless Purchaser and each of its directors, officers, employees, agents,
representatives and Affiliates (and the directors, officers, employees,
representatives and agents of such Affiliates) from any and all Losses to the
extent they result from (i) third party claims arising out of or caused by any
breach of any of the representations and warranties set forth herein or (ii)
claims by CGI, Wyde or either of their successors arising out of or based upon
Sellers' or any Affiliates' of Sellers use or possession of the CGI SAGE
Components, (iii) third party claims arising out of or based upon (A) the
delivery by Purchaser of copies of any of the Computer Programs, Data or
Databases to Sellers, upon Sellers' request, in accordance with the terms of
this Agreement, or (B) Sellers' failure to remove any operating system software
or system or application software right-to-use licenses from the Transferred
Assets as required by Section 13 hereof, or (iv) any successful enforcement of
this indemnity.
(b) Indemnification by Purchaser. Purchaser agrees to indemnify and hold
harmless Sellers and each of their directors, officers, employees, agents,
representatives and Affiliates (and the directors, officers, employees,
representatives and agents of such Affiliates) from any and all Losses to the
extent they result from (i) third party claims arising out of or caused by any
breach of any of Purchaser's obligations under Section 6 hereof, (ii) third
party claims arising out of or resulting from any access or use of the Approved
Desktop Software (as defined in Section 13 hereof) by (A) Purchaser, its
Affiliates or their respective employees, agents and representatives or (B)
Sellers or any Affiliate or Subcontractor of Sellers, to the extent that such
access or use of the Approved Desktop Software is in connection with the
provision of any Transition Services or any Special Project hereunder, or (iii)
any successful enforcement of this indemnity.
(c) Indemnification Procedures. In the event either Purchaser or Sellers
shall have a claim for indemnity against the other party under the terms of this
Agreement with respect to a third-party claim, the parties shall follow the
procedures set forth in Section 10.3 of the Asset Purchase Agreement. The
parties hereto shall follow the procedures set forth in Section 11 hereof with
respect to any other claim for indemnity.
(d) Limitations on Indemnification. Any indemnification obligation of
Sellers hereunder shall be in accordance with the terms and conditions
applicable to breaches of representations and warranties set forth in Article X
of the Asset Purchase Agreement, including, without limitation, Sections 10.4
and 10.5 of the Asset Purchase Agreement. For the avoidance of doubt, the dollar
limitations set forth in Section 10.4(c) of the Asset Purchase Agreement shall
Page 8
--------------------------------------------------------------------------------
be applied to any breaches of representations or warranties in this Agreement as
though such representations and warranties had been set forth in the Asset
Purchase Agreement.
Section 11. Arbitration.
(a) Arbitration. After the Closing Date, except with regard to the relief
set forth in Section 14, any dispute between Purchaser and Sellers with
reference to the interpretation or performance of this Agreement, whether such
dispute arises before or after the termination of this Agreement, shall be
decided through negotiation and, if necessary, arbitration as set forth in this
Section 11. The parties intend this Section 11 to be enforceable in accordance
with the Federal Arbitration Act (9 U.S.C., Section 1) including any amendments
to that Act which are subsequently adopted. In the event that either party
refuses to submit to arbitration as required by Section 11(a), the other party
may request the court specified in Section 16(f) to compel arbitration in
accordance with the Federal Arbitration Act.
(b) Procedures. Sellers and Purchaser intend that any dispute between them
arising under this Agreement be resolved without resort to any litigation.
Accordingly, Sellers and Purchaser agree that they will negotiate diligently and
in good faith to agree on a mutually satisfactory resolution of any such
dispute; provided, however, that if any such dispute cannot be so resolved by
them within sixty (60) calendar days (or such longer period as the parties may
agree) after commencing such negotiations, Sellers and Purchaser agree that they
will submit such dispute to arbitration in the manner specified in, and such
arbitration proceeding will be conducted in accordance with, the Commercial
Arbitration Rules of the American Arbitration Association.
The arbitration hearing will be before a panel of three disinterested
arbitrators, each of whom must be a present or former officer of a life
insurance or life reinsurance company familiar with the life reinsurance
business, or other professionals with experience in life insurance or
reinsurance, provided that such professionals shall not have performed services
for either party within the previous five (5) years, and provided further that
no arbitrator shall be a former employee of either Seller or any of its
Affiliates. Sellers and Purchaser will each appoint one arbitrator by written
notification to the other party within thirty (30) calendar days after the date
of the mailing of the notification initiating the arbitration. These two
arbitrators will then select the third arbitrator within sixty (60) calendar
days after the date of the mailing of the notification initiating arbitration.
If either Sellers or Purchaser fails to appoint an arbitrator, or should
the two arbitrators be unable to agree upon the choice of a third arbitrator,
the president of the American Arbitration Association will appoint the necessary
arbitrators within thirty (30) calendar days after the request to do so.
The arbitrators shall base their decision on the terms and conditions of
this Agreement. However, if the terms and conditions of this Agreement do not
explicitly dispose of an issue in dispute between the parties, the arbitrators
may base their decision on the customs and practices of the life insurance and
life reinsurance industry together with an interpretation of the law. The vote
or approval of a majority of the arbitrators will decide any question considered
by the arbitrators. The place of arbitration will be determined by the
arbitrators. Each decision
Page 9
--------------------------------------------------------------------------------
(including without limitation each award) of the arbitrators will be final and
binding on all parties and will be nonappealable, except that (at the request of
either Sellers or Purchaser) any award of the arbitrators may be confirmed (or,
if appropriate, vacated) by a judgment entered by the court specified in Section
16(f). In no event may the arbitrators award punitive or exemplary damages,
except for the liable party's fraud, theft, embezzlement or other intentional
acts or omissions of bad faith. Each party will be responsible for paying (i)
all fees and expenses charged by its respective counsel, accountants, actuaries,
and other representatives in conjunction with such arbitration and (ii) one-half
of the fees and expenses charged by each arbitrator.
Section 12. Delivery By Sellers.
(a) All materials conveyed or licensed to Purchaser under or pursuant to
this Agreement or the Asset Purchase Agreement, whether Computer Programs, Data
or Databases, shall be segregated from Sellers' other materials in all material
respects, at Sellers' expense, and delivered by Sellers to Purchaser (in
machine-readable form, where applicable) as promptly as practicable (i) upon
request by Purchaser, (ii) if not earlier requested, upon the date of
termination or expiration of the Transition Services Agreement.
(b) All Computer Programs, Data and Databases sold, assigned, transferred
or conveyed to Purchaser under or pursuant to this Agreement or the Asset
Purchase Agreement, or which are owned by Sellers or any Affiliate of Sellers
and licensed to Purchaser under or pursuant to this Agreement or the Asset
Purchase Agreement, shall be segregated from Sellers' other computer programs,
data and databases in all material respects, at Sellers' expense, and delivered
by Sellers (in machine-readable form) together with any available historical
records thereof. With regard to Owned Principally-Used Computer Programs, such
delivery shall include (i) all available source code (if available, as annotated
by or for Sellers for their use or the use of any third party) and (ii) all
available user and administrator documentation (as prepared by or for Sellers
for their use or the use of any third party).
(c) All third party-owned Computer Programs, Data and Databases licensed,
sublicensed or as to which a license agreement is assigned to Purchaser under
this Agreement or the Asset Purchase Agreement, or pursuant to either, shall be
segregated from Sellers' other computer programs, data and databases in all
material respects and provided to Purchaser (in machine-readable form, where
applicable) together with a copy of all available ancillary third party
materials.
Section 13. Other Computer Programs. Purchaser acknowledges and agrees that
Sellers are not providing any operating system software or system or application
software right-to-use licenses with certain computers used by the Transferred
Employees, any such software and licenses being Purchaser's sole responsibility
to obtain. Purchaser further acknowledges, agrees and is notified that, to the
extent any hardware constituting part of the Transferred Assets contains any
software, other than the software and related components described on Schedule
13 hereto (such software and related components contained in or residing on the
computers used by the Transferred Employees being collectively referred to
herein as the "Approved Desktop Software"), Sellers shall remove such software
as promptly as possible using commercially reasonable efforts. Purchaser shall
provide Sellers with such reasonable cooperation and access (for as long as
reasonably necessary) as Sellers may request for the purpose removing such
Page 10
--------------------------------------------------------------------------------
software from the Transferred Assets, including, without limitation, access to
and reasonable cooperation of any Transferred Employees with particular skills
or expertise.
Section 14. Equitable Rights. The parties acknowledge and agree that money
damages would not be a sufficient remedy for any failure of either party to
timely deliver materials sold, assigned or licensed to the other party,
including, without limitation, any such failure upon Sellers' termination of the
Administrative Services Agreement in connection with a recapture of the Covered
Insurance Contracts pursuant to the Reinsurance Agreements, under or pursuant to
this Agreement or the APA, and that each party shall be entitled to seek
equitable relief, including, without limitation, injunction and specific
performance, as a remedy for such breach by the other party and that the
breaching party shall not oppose the granting of such equitable relief, unless
such non-performance or breach was caused directly or indirectly by the act or
omission of the party seeking such equitable relief. Such remedy shall not be
deemed to be the exclusive remedy for breach of this Agreement, but shall be in
addition to the other remedies available to a party under this Agreement.
Section 15. Term. This Agreement shall become effective on the Effective
Date and shall remain in force in perpetuity (or for the longest period
permitted by law).
Section 16. Miscellaneous.
(a) Notices. Any notice, request or other communication to be given by any
party hereunder shall be in writing and shall be delivered personally, sent by
registered or certified mail, postage prepaid, or by overnight courier with
written confirmation of delivery. Any such notice shall be deemed given when so
delivered personally, or if mailed, on the date shown on the receipt therefor,
or if sent by overnight courier, on the date shown on the written confirmation
of delivery. Such notices shall be given to the following address:
To Sellers: Security Life of Denver Insurance Company
Security Life of Denver International Limited
Attention: ▇▇▇▇ ▇▇▇▇▇▇
c/o ING North America Insurance Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a concurrent copy to: B. ▇▇▇▇▇ ▇▇▇▇▇▇
Corporate General Counsel
ING North America Insurance Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
And
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Page 11
--------------------------------------------------------------------------------
To Purchaser: Scottish Re (U.S.) Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) Entire Agreement. This Agreement may not be amended or modified in any
respect whatsoever except by instrument in writing signed by the parties hereto.
This Agreement, the Asset Purchase Agreement, the Related Agreements, the
Confidentiality Agreement, and the other documents delivered pursuant hereto and
thereto constitute the entire agreement among the parties hereto and their
respective Affiliates with respect to the subject matter hereof and supersede
all prior negotiations, discussions, writings and agreements between them with
respect thereto.
(c) Successors and Assigns. The rights and obligations of the parties under
this Agreement shall not be subject to assignment, and any attempted assignment
shall be invalid ab initio; provided, that the foregoing shall not be construed
to limit in any way Purchaser's rights to assign the Computer Programs, Data,
Databases and related agreements and materials conveyed, transferred, assigned
or licensed to Purchaser hereunder. The terms of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by and against the
successors of the parties hereto.
(d) Captions. The captions of this Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
(e) Waivers and Amendments. Except as otherwise permitted herein, any
modification, supplement, or amendment to this Agreement, or any waiver
hereunder, shall be effective only if made in writing and signed by the
designated officer of each of the parties hereto. No waiver of any provisions of
this Agreement and no consent to any default under this Agreement shall be
effective unless the same shall be in writing and signed by or on behalf of the
party against whom such waiver or consent is claimed. No course of dealing or
failure of any party to strictly enforce any term, right or condition of this
Agreement shall be construed as a waiver of such term, right or condition.
Waiver by either party of any default by the other party shall not be deemed a
waiver of any other default.
(f) Governing Law and Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contract entered into therein, without reference to principles of choice of law
or conflicts of laws. Each party hereto irrevocably and unconditionally submits
to the exclusive jurisdiction of any State or Federal Court sitting in New York,
over any suit, action or proceeding arising out of or relating
Page 12
--------------------------------------------------------------------------------
to this Agreement. Each party hereto agrees that service of any process,
summons, notice or document by U.S. registered mail addressed to such party at
the address(es) set forth in Section 16(a) hereof shall be effective service of
process for any action, suit or proceeding brought against such party in such
court. Each party hereto irrevocably and unconditionally waives any objection to
the laying of venue of any such suit, action or proceeding brought in any such
court and any claim that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum. Each party hereto agrees that
final judgment in any such action, suit or proceeding brought in any such court
shall be conclusive and binding upon such party and may be enforced in any other
courts to whose jurisdiction such party may be subject, by suit upon such
judgment.
(g) No Third Party Beneficiaries. Except as otherwise expressly set forth
in any provision of this Agreement, nothing in this Agreement is intended or
shall be construed to give any Person, other than the parties hereto, any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
(h) Execution in Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a number
of copies hereof each signed by less than all, but together signed by all of the
parties hereto. Each counterpart may be delivered by facsimile transmission,
which transmission shall be deemed delivery of an originally executed document.
(i) Severability. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction, so long as the economic
or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. If any provision of this Agreement
is so broad as to be unenforceable, that provision shall be interpreted to be
only as broad as is enforceable.
(j) Waiver of Jury Trial; Multiplied and Punitive Damages. Each of the
parties hereto irrevocably waives, with respect to any first party action filed
by the other party (but not as to any action by one party against the other
seeking indemnification for a third party claim against the party initiating the
action, to the extent that such damages may be recoverable as part of the
indemnification by the indemnified party) (i) any and all right to trial by
jury, and (ii) any right to punitive, incidental, consequential or multiplied
damages, either pursuant to common law or statute, in any legal proceedings
arising out of or related to this Agreement or the transactions contemplated
hereby, except for the liable party's fraud, theft, embezzlement or other
intentional acts or omissions of bad faith.
Page 13
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties have, by their duly authorized
representatives, executed and delivered this Agreement as of the Effective Date.
SECURITY LIFE OF DENVER ING NORTH AMERICA INSURANCE CORPORATION
INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------- -------------------------------
Print: ▇▇▇▇ ▇▇▇▇▇▇ Print: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------- ----------------------------
Title: President Title: Vice President
---------------------------- ----------------------------
Date: December 31, 2004 Date: December 31, 2004
----------------------------- -----------------------------
SCOTTISH RE (U.S.), INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Print: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: CEO/ President
--------------------------
Date: December 31, 2004
---------------------------
Page 14
--------------------------------------------------------------------------------