AETNA VARIABLE ENCORE FUND
UNDERWRITING AGREEMENT
THIS AGREEMENT, is entered into this 1st day of May, 2001, by and between Aeltus
Capital, Inc., a Connecticut corporation ("ACI"), and Aetna Encore Variable
Fund, a Massachusetts business trust ("Fund").
WHEREAS, the Fund is an open-end management investment company registered with
the Securities and Exchange Commission ("Commission") under the Investment
Company Act of 1940, as amended ("1940 Act") authorized to issue shares of
distinct investment portfolios; and
WHEREAS, the Fund has registered the shares of its common stock ("Shares") for
offer and sale to the public under the Securities Act of 1933, as amended; and
WHEREAS, the Fund wishes to retain ACI, and ACI is willing to act, as principal
underwriter in connection with the offer and sale of the Shares; and
NOW, THEREFORE, in consideration of the promises and mutual covenants herein
contained, the parties agree as follows:
1. APPOINTMENT OF UNDERWRITER. The Fund hereby appoints ACI and ACI hereby
accepts appointment as underwriter in connection with the distribution of the
Shares. The Fund authorizes ACI to solicit orders for the purchase of the Shares
as set forth in the Registration Statement currently effective with the
Commission for the Shares. It is understood that the Shares are offered only
through variable annuity contracts and variable life policies issued by
affiliates of ACI.
2. COMPENSATION. ACI shall receive no separate compensation for providing
services under this Agreement.
3. ACI EXPENSES. ACI shall be responsible for any costs of printing and
distributing such sales literature, reports, forms and advertisements in
connection with the sale of Shares as it elects to prepare, provided such
materials comply with the applicable provisions of federal and state law.
4. FUND EXPENSES. The Fund shall be responsible for the costs of registering
the Shares with the Commission and for the costs of preparing prospectuses,
statements of additional information and such other documents as are required to
maintain the registration of the Shares with the Commission.
5. SHARE CERTIFICATES. The Fund shall not issue certificates representing
Shares.
6. STATUS OF UNDERWRITER AND OTHER PERSONS. ACI is an independent contractor
and shall be agent for the Fund only in respect to the sale and redemption of
the Shares. Any person, even though also an officer, director, employee or agent
of ACI, who may be or become an officer, director, employee or agent of the
Fund, shall be deemed, when rendering services to the Fund or acting in any
business of the Fund, to be rendering such services to or acting solely for the
Fund and not as an officer, director, employee or agent or one under the control
or direction of ACI even though paid by ACI.
7. NONEXCLUSIVITY. The services of ACI to the Fund under this Agreement are
not to be deemed exclusive, and ACI shall be free to render similar services or
other services to others and to engage in other activities related or unrelated
to those provided under this Agreement.
8. EFFECTIVENESS AND TERMINATION OF AGREEMENT. This Agreement shall become
effective at the close of business on the date set forth in the first paragraph
of this Agreement and shall remain in force and effect, through December 31,
2001, unless earlier terminated under the provisions of Section 9. Following the
expiration of its initial term, the Agreement shall continue in force and effect
for one year periods, provided such continuance is specifically approved at
least annually by the Fund's trustees, or by the vote of a majority of the
Fund's outstanding voting securities (as defined in Section 2(a)(42) of the 1940
Act).
9. TERMINATION. This Agreement may be terminated at any time, by either party,
without the payment of any penalty, on sixty (60) days' written notice to the
other party.
10. LIABILITY OF ACI. ACI shall be liable to the Fund and shall indemnify the
Fund for any losses incurred by the Fund, to the extent that such losses
resulted from an act or omission on the part of ACI or its officers, directors
or employees in carrying out its duties hereunder, that is found to involve
willful misfeasance, bad faith, negligence, or reckless disregard by ACI of its
duties under this Agreement.
11. AMENDMENTS. This Agreement may be amended or changed only by an instrument
in writing signed by both parties.
12. APPLICABLE LAW. This Agreement shall be construed in accordance with the
laws of the State of Connecticut and the 1940 Act. To the extent that the
applicable laws of the State of Connecticut conflict with the applicable
provisions of the 1940 Act, however, the latter shall control.
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13. NOTICES. Any notices under this Agreement shall be in writing, addressed
and delivered, mailed postage paid, or sent by other delivery service, or by
facsimile transmission to each party at such address as each party may designate
for the receipt of notice. Until further notice, such addresses shall be:
IF TO ACI:
00 Xxxxx Xxxxx Xxxxxx, XX00
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Fax number: 860/000-0000
IF TO THE FUND:
00 Xxxxx Xxxxx Xxxxxx, XX00
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Fax number: 860/000-0000
14. QUESTIONS OF INTERPRETATION. This Agreement shall be governed by the laws
of the State of Connecticut. Any question of interpretation of any term or
provision of this Agreement having a counterpart in or otherwise derived from a
term or provision of the 1940 Act shall be resolved by reference to such term or
provision of the 1940 Act and to interpretations thereof, if any, by the United
States Courts or, in the absence of any controlling decision of any such court,
by rules, regulations or orders of the Commission issued pursuant to the 1940
Act. In addition, where the effect of a requirement of the 1940 Act reflected in
the provisions of this Agreement is revised by rule, regulation or order of the
Commission, such provisions shall be deemed to incorporate the effect of such
rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate by their respective officers on the date set forth above.
AELTUS CAPITAL, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
/s/ Xxxxxxx Xxxxxxx ------------------------------------
ATTEST:------------------------ Title: Executive Vice President
Xxxxxxx Xxxxxxx ------------------------------------
Secretary
AETNA VARIABLE ENCORE FUND
By: /s/ J. Xxxxx Xxx
------------------------------------
Name: J. Xxxxx Xxx
/s/ Xxxxx Xxxxxxx ------------------------------------
ATTEST:------------------------ Title: President
Xxxxx Xxxxxxx ------------------------------------
Assistant Secretary
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