RULE 22C-2 AMENDMENT TO PARTICIPATION AGREEMENT BETWEEN THE UNIVERSAL INSTITUTIONAL FUNDS, INC., MORGAN STANLEY & CO. INCORPORATED, MORGAN STANLEY INVESTMENT MANAGEMENT INC. AND NATIONAL INTEGRITY LIFE INSURANCE COMPANY

Exhibit 99.8(v)

 

RULE 22C-2 AMENDMENT TO PARTICIPATION AGREEMENT BETWEEN THE UNIVERSAL INSTITUTIONAL FUNDS, INC., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT INC. AND

NATIONAL INTEGRITY LIFE INSURANCE COMPANY

 

This AMENDMENT entered into as of March 16, 2007, by and among The Universal Institutional Funds, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Management Inc. (collectively “Trust”) and National Integrity Life Insurance Company (“Intermediary”).

 

WHEREAS, Intermediary, pursuant to a Participation Agreement dated January 2, 2003, as amended, purchases Shares of the Trusts to fund certain variable life insurance or variable annuity contracts issued by Intermediary (“Contracts”); and

 

WHEREAS, Trust and Intermediary (each a “Party” and, together, the “Parties”) seek to enter into this Amendment in order for the Trust and Intermediary to comply with the requirements of Rule 22c-2 (“Rule 22c-2”) under the Investment Company Act of 1940, as amended (the “1940 Act”), and to make other changes to the Participation Agreement.

 

NOW, THEREFORE, in consideration of the mutual covenants herein contained, which consideration is full and complete, Trust and Intermediary hereby agree as follows:

 

A.  Definitions.  As used in this Amendment, the following terms shall have the following meanings, unless a different meaning is clearly required by the contexts:

 

The term “Intermediary” means an insurance company separate account.

 

The term “Fund” means an open-ended management investment company of the Trusts that is registered or required to register under section 8 of the Investment Company Act of 1940 and includes (i) an investment adviser to or administrator for the Fund; (ii) the principal underwriter or distributor for the Fund; or (iii) the transfer agent for the Fund.  The term not does include any “excepted funds” as defined in SEC Rule 22c-2(b) under the Investment Company Act of 1940.(1)

 

The term “Shares” means the interests of Shareholders corresponding to the redeemable securities of record issued by the Fund under the Investment Company Act of 1940 that are held by the Intermediary.

 

The term “Shareholder” means the holder of interests in a variable annuity or variable life insurance contract issued by the Intermediary (“Contract”), or a participant in an employee benefit plan with a beneficial interest in a contract.

 

(1) As defined in SEC Rule 22c-2(b), term “excepted fund” means any: (1) money market fund; (2) fund that issues securities that are listed on a national exchange; and (3) fund that affirmatively permits short-term trading of its securities, if its prospectus clearly and prominently discloses that the fund permits short-term trading of its securities and that such trading may result in additional costs for the fund.

 

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The term “Shareholder-Initiated Transfer Purchase” means a transaction that is initiated or directed by a Shareholder that results in a transfer of assets within a Contract to a Fund, but does not include transactions that are executed: (i) automatically pursuant to a contractual or systematic program or enrollment such as transfer of assets within a Contract to a Fund as a result of “dollar cost averaging” programs, insurance company approved asset allocation programs, or automatic rebalancing programs; (ii) pursuant to a Contract death benefit or distribution on death of contract owner as required by the Internal Revenue Code and related regulations; (iii) one-time step-up in Contract value pursuant to a Contract death benefit; (iv) allocation of assets to a Fund through a Contract as a result of payments such as loan repayments, scheduled contributions, retirement plan salary reduction contributions, or planned premium payments to the Contract; or (v) pre-arranged transfers at the conclusion of a required free look period.

 

The term “Shareholder-Initiated Transfer Redemption” means a transaction that is initiated or directed by a Shareholder that results in a transfer of assets within a Contract out of a Fund, but does not include transactions that are executed: (i) automatically pursuant to a contractual or systematic program or enrollments such as transfers of assets within a Contract out of a Fund as a result of annuity payouts, loans, systematic withdrawal programs, insurance company approved asset allocation programs and automatic rebalancing programs; (ii) as a result of any deduction of charges or fees under a Contract; (iii) within a Contract out of a Fund as a result of scheduled withdrawals or surrenders from a Contract; or (iv) as a result of payment of a death benefit from a Contract or distribution on death of contract owner as required by the Internal Revenue Code and related regulations.

 

The term “written” includes electronic writings and facsimile transmissions.

 

B. Shareholder Information.

 

B.1.  Agreement to Provide Information.  Intermediary agrees to provide the Fund or its designee, upon written request, the taxpayer identification number (“TIN”), the Individual/International Taxpayer Identification Number (“ITIN”), or other government-issued identifier (“GII”) and the Contract owner number or participant account number associated with the Shareholder, if known, of any or all Shareholder(s) of the account, and the amount, date and transaction type (purchase, redemption, transfer, or exchange) of every purchase, redemption, transfer, or exchange of Shares held through an account maintained by the Intermediary during the period covered by the request.  Unless otherwise specifically requested by the Fund, the Intermediary shall only be required to provide information relating to Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer Redemptions.

 

B.2.  Period Covered by Request.  Requests must set forth a specific period, not to exceed 90 days from the date of the request, for which transaction information is sought. The Fund may request transaction information older than 90 days from the date of the request as it deems necessary to investigate compliance with policies established by the Fund for the purpose of eliminating or reducing any dilution of the value of the outstanding shares issued by the Fund.

 

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B.3  Timing of Requests.  Fund requests for Shareholder information shall be made no more frequently than quarterly except as the Fund deems necessary to investigate compliance with policies established by the Fund for the purpose of eliminating or reducing any dilution of the value of the outstanding shares issued by the Fund.

 

B.4  Form and Timing of Response.  (a) Intermediary agrees to provide, promptly upon request of the Fund or its designee, the requested information specified in B.1.  If requested by the Fund or its designee, Intermediary agrees to use best efforts to determine promptly whether any specific person about whom it has received the identification and transaction information specified in B.1 is itself a financial intermediary (“indirect intermediary”) and, upon further request of the Fund or its designee, promptly either (i) provide (or arrange to have provided) the information set forth in B.1 for those shareholders who hold an account with an indirect intermediary or (ii) restrict or prohibit the indirect intermediary from purchasing, in nominee name on behalf of other persons, securities issued by the Fund.  Intermediary additionally agrees to inform the Fund whether it plans to perform (i) or (ii).

 

(b)  Responses required by this paragraph must be communicated in writing and in a format mutually agreed upon by the Fund or its designee and the Intermediary; and

 

(c)  To the extent practicable, the format for any transaction information provided to the Fund should be consistent with the NSCC Standardized Data Reporting Format.

 

B.5.  Limitations on Use of Information.  The Fund agrees not to use the information received pursuant to this Amendment for any purpose other than as necessary to comply with the provisions of Rule 22c-2 or to fulfill other regulatory or legal requirements subject to the privacy provisions of Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (Public Law 106-102) and comparable state laws.

 

C.  Trading Restriction Instructions.

 

C.1.  Agreement to Restrict Trading.  Intermediary agrees to execute written instructions from the Fund to restrict or prohibit further purchases or exchanges of Shares by a Shareholder that has been identified by the Fund as having engaged in transactions of the Fund’s Shares (directly or indirectly through the Intermediary’s account) that violate policies established by the Fund for the purpose of eliminating or reducing any dilution of the value of the outstanding Shares issued by the Fund.  Unless otherwise directed by the Fund, any such restrictions or prohibitions shall only apply to Shareholder-Initiated Transfer Purchases or Shareholder-Initiated Transfer Redemptions that are effected directly or indirectly through Intermediary.  Instructions must be received by Intermediary at the address that Intermediary may communicate to Fund in writing from time to time.

 

C.2.  Form of Instructions.  Instructions must include the TIN, ITIN, or GII and the specific individual Contract owner number or participant account number associated with the Shareholder, if known, and the specific restriction(s) to be executed, including how long the restriction(s) is(are) to remain in place.  If the TIN, ITIN, GII or the specific

 

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individual Contract owner number or participant account number associated with the Shareholder is not known, the instructions must include an equivalent identifying number of the Shareholder(s) or account(s) or other agreed upon information to which the instruction relates.  Upon request of the Intermediary, Fund agrees to provide to the Intermediary, along with any written instructions to prohibit further purchases or exchanges of Shares by Shareholder, information regarding those trades of the contract holder that violated the Fund’s policies relating to eliminating or reducing any dilution of the value of the Fund’s outstanding Shares.

 

C.3.  Timing of Response.  Intermediary agrees to execute instructions as soon as reasonably practicable, but not later than five business days after receipt of the instructions by the Intermediary.

 

C.4  Confirmation by Intermediary.  Intermediary must provide written confirmation to the Fund that instructions have been executed. Intermediary agrees to provide confirmation as soon as reasonably practicable, but not later than ten business days after the instructions have been executed.

 

D.  Effective Date.  This Amendment shall be effective upon its execution or, if later, upon the effectiveness of the provisions of 22c-2 relating to agreements with “financial intermediaries” (as such term is defined in Rule 22c-2).  Prior to the effective date of this Amendment, the Fund and the Intermediary agree that any request made to the Intermediary by the Fund for shareholder transaction information, and the Intermediary’s response to such request, shall be governed by whatever practices the Fund and the Intermediary had utilized in the absence of a formal agreement, if any, to govern such requests.

 

E.  Termination.  This Agreement will terminate upon the termination of the Fund Participation Agreements.

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first above written.

 

THE UNIVERSAL INSTITUTIONAL FUNDS INC.
By:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
NATIONAL INTEGRITY LIFE INSURANCE COMPANY
By:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT INC.
By:

 

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