EXHIBIT (11)(d)
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FORM OF SUBLICENSE AGREEMENT BETWEEN
THE TARGET ACCOUNT,
FIRST TRUST ADVISERS L.P.,
AND DOW XXXXX & COMPANY, INC.
Form Of Sublicense Agreement
This Sublicense Agreement (the "Sublicense Agreement"), dated as of
____________, 1998, is made by and among _________________ (the "Sublicensee"),
First Trust Advisors, L.P. ("Licensee") and Dow Xxxxx & Company, Inc.
("Licensor").
WITNESSETH:
Whereas, pursuant to that certain License Agreement, dated as of November
11, 1997, by and between Licensor and Licensee (the "License Agreement"),
Licensor has granted Licensee a license to use certain copyright, trademark and
proprietary rights and trade secrets of Licensor (the "Dow Xxxxx Marks") in
connection with the issuance, distribution, marketing and/or promotion of the
specific products described in Appendix A attached hereto and incorporated
herein (the "Products");
Whereas, Sublicensee and Licensee desire to enhance the marketability,
sales and performance of the products and services offered in connection with
that certain Sub-Advisory Agreement dated _____________ 199__ (the "Sub-Advisory
Agreement") by and between _________________ and Licensee by adding the Products
to such portfolio;
Whereas, Sublicensee wishes to issue and/or sell the Products and to use
and refer to the Dow Xxxxx Marks in connection with the marketing and promotion
of the Products; and
Whereas, all capitalized terms used herein shall have the meanings assigned
to them in the License Agreement unless otherwise defined herein.
Now Therefore, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties hereto agree as follows:
1. License. Pursuant to Section l(d) of the License Agreement, Licensor
hereby grants to Sublicensee a non-exclusive and non-transferable sublicense to
use the Dow Xxxxx Marks in connection with the issuance,
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distribution, marketing and/or promotion of the specific Products described in
Appendix A hereto.
2. Term. The term of the Sublicense Agreement (the "Sublicense Term")
shall commence as of the date hereof and shall remain in full force and effect
until November 18, 2002, unless (i) terminated earlier as provided herein or in
the License Agreement, (ii) terminated earlier automatically upon termination of
the Sub-Advisory Agreement, or (iii) extended upon the mutual consent of all
three (3) parties hereto.
3. Consideration. Each of the parties hereto anticipate that the
undertakings contemplated hereunder will increase the marketability and sales of
Products under each of the License Agreement and the Sub-Advisory Agreement.
4. Sublicensee Obligations. The Sublicensee acknowledges that it has
received and read a copy of the License Agreement (excluding Schedule B) and
agrees to be bound to Licensor and Licensee under this Agreement as if
Sublicensee were the Licensee under the License Agreement by all of the
provisions therein imposing any obligations on the Licensee (including without
limitation the indemnification obligations in Section 9) insofar as such
obligations arise out of or relate to the Products to be issued, marketed and/or
sold by the Sublicensee as described in Appendix A hereto, other than the
obligation to pay the License Fees imposed by Section 3 of the License
Agreement.
5. Sublicensee as Principal. Sublicensee agrees that its obligations
under the License Agreement pursuant to Section 4 hereof are as a principal and
shall be unaffected by any defense or claim that Licensee may have against
Licensor.
6. Licensee Liability. Licensee makes no representation or warranty,
express or implied, to the owners of the Products or any member of the public
regarding the advisability of purchasing the Products. Licensee has no
obligation to take the needs of Sublicensee or the owners of the Products into
consideration in determining, composing or calculating the Products. Licensee
is not responsible for and has not participated in the determination of the
terms and conditions of the Dow Xxxxx Marks,
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including the calculation of the Dow Xxxxx Industrial Average/sm/. Licensee has
no obligation or liability in connection with the administration or calculation
of the Dow Xxxxx Industrial Average/sm/.
Licensee does not guarantee the accuracy and/or the completeness of the Dow
Xxxxx Industrial Average/sm/ or any data included therein and Licensee shall
have no liability for any errors, omissions, or interruptions therein. Licensee
makes no warranty, express or implied, as to results to be obtained by
Sublicensee, Owners of the Products, or any other person or entity from the use
of the Dow Xxxxx Industrial Average/sm/ or any data included therein. Licensee
makes no express or implied warranties, and expressly disclaims all warranties
of merchantability or fitness for a particular purpose or use with respect to
the Dow Xxxxx Industrial Average/sm/ or any data included therein. Without
limiting any of the foregoing, in no event shall Licensee have any liability for
any lost profits or indirect, punitive, special or consequential damages
(including lost profits), even if notified of the possibility of such damages.
There are no third party beneficiaries of any agreements or arrangements between
Licensee and Sublicensee.
7. Governing Law. This Sublicense Agreement shall be construed in
accordance with the laws of the State of Illinois without reference to or
inclusion of the principles of choice of law or conflicts of law of that
jurisdiction.
In Witness Whereof, the parties hereto have executed this Sublicense
Agreement as of the date first set forth above.
Sublicensee
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By:
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Title:
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First Trust Advisors, L.P.
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By:
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Title:
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Dow Xxxxx & Company, Inc.
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By:
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Title:
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APPENDIX A
PRODUCTS DESCRIPTION
A. Variable Annuities that meet the following criteria: (i) the issuer
is a company which is organized as an insurance company, whose primary business
activity is the writing of insurance and which is subject to supervision by the
insurance commissioner, or any official or agency performing like functions, of
any state; (ii) Sublicensee is the investment advisor or subadvisor for the
managed separate account underlying the contract; (iii) the benefits payable
under the terms of the contract are calculated with reference to the Strategy
(as defined below); and (iv) which has been registered with the Securities and
Exchange Commission under the Securities Act of 1933, as amended.
B. Variable Life Insurance Products that meet the following criteria:
(i) the issuer is a company which is organized as an insurance company, whose
primary business activity is the writing of insurance and which is subject to
supervision by the insurance commissioner, or any official or agency performing
like functions, of any state; (ii) Sublicensee is the investment advisor or
subadvisor for the managed separate account underlying the policy; (iii) the
benefits payable under the terms of the policy are calculated with reference to
the Strategy; and (iv) which has been registered with the Securities and
Exchange Commission under the Securities Act of 1933, as amended.
For purposes of this Agreement, the term "Strategy" shall mean either of
the following investment strategies:
(i) The strategy pursuant to which funds are invested in the ten
(10) stocks included in the Index that have the highest dividend yield as a
percentage of their year-end stock price (the "High-Yield Stocks"). These
investments are held for one calendar
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year, after which they are replaced by investments in the next set of High-
Yield Stocks. This strategy is commonly referred to as the "Dogs of the
Dow" investment strategy.
(ii) The strategy pursuant to which funds are invested in the five
High-Yield Stocks which have the lowest stock price (the "Flying Five
Stocks"). These investments are held for one calendar year, after which
they are replaced by investments in the next set of Flying Five Stocks.
This strategy is commonly referred to as the "Flying Five" investment
strategy.
(iii) The strategy pursuant to which funds are invested in each of
the Flying Five Stocks except for the stock which has the lowest stock
price. These investments are held for one calendar year, after which they
are replaced by investments in the next set of Flying Five Stocks, except
for the stock which has the lowest stock price.
(iv) The strategy pursuant to which funds are invested in the five
High-Yield Stocks which have the second through the sixth lowest stock
prices. These investments are held for one calendar year, after which they
are replaced by investments in the next set of five High-Yield Stocks which
have the second through the sixth lowest stock prices.
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