NICHOLAS COMPANY, INC.
CODE OF ETHICS
AND INSIDER TRADING POLICY
(AS AMENDED ON JULY 5, 2000)
Nicholas Company, Inc., an investment adviser registered under the
Investment Advisers Act of 1940, as amended, hereby adopts the following
Code of Ethics and Insider Trading Policy ("Code") governing the conduct of
personal trading by persons associated with it. The purpose of this Code
is to foster compliance with applicable federal and state regulatory
requirements and to eliminate transactions suspected of being in conflict
with the best interests of the Company's clients. In addition, as an
entity with access to highly confidential and sensitive information, the
Company has potential exposure to liability or penalties under the Federal
securities laws for insider trading or other improper use of information by
employees or other persons under their control. In addition, Section 204A
of the Investment Advisors Act of 1940 mandates that investment advisors
adopt, maintain and enforce written policies and procedures reasonably
designed to prevent insider trading or other misuse of material, non-public
information by investment advisers and any person associated with such
investment advisors.
1. DEFINITIONS.
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A. ACCESS PERSON.
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As used in this Code, the term "Access Person" shall mean any
officer or director of Nicholas Company, Inc., or any employee of
Nicholas Company, Inc. who, in connection with his or her regular
functions or duties, makes, participates in, or obtains information
regarding the purchase or sale of a security by any account to which
the Company serves as investment adviser, or whose functions relate to
the making of any recommendation with respect to such purchases or
sales.
B. COMPANY.
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As used in this Code, the term "Company" shall mean Nicholas
Company, Inc.
C. BENEFICIAL OWNERSHIP.
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As used in this Code, the term "beneficial ownership" shall be
interpreted in the same manner as it would be in determining whether a
person is subject to the provisions of Section 16 of the Securities
Exchange Act of 1934, as amended ("Exchange Act"), and the rules and
regulations thereunder. Pursuant to Rule 16a-1(a)(2) of the Exchange
Act, the term "beneficial owner" shall mean any person who directly or
indirectly, through any contract, arrangement, understanding,
relationship, or otherwise, has or shares: (1) a direct or indirect
pecuniary interest in a security; (2) voting power, which includes the
power to vote, or to direct the voting of, such security; and/or (3)
investment power, which includes the power to dispose, or to direct
the disposition of, such security. For example, close family or
business relationships may give rise to a degree of influence of one
person over the voting or investment decisions of another such as to
result in shared beneficial ownership. Typically, ownership of
securities by a spouse, minor child or a trust of which an Access
Person is grantor, beneficiary or trustee, will be deemed beneficial
ownership of those securities by the related Access Person.
D. SECURITY.
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As used in this Code, except as otherwise provided herein, the
term "security" shall mean a "Covered Security" as defined in Section
2(a)(36) of the Investment Company Act, except that it shall not
include: (1) direct obligations of the Government of the United
States; (2) bankers' acceptances, bank certificates of deposit,
commercial paper and high quality short-term debt instruments,
including repurchase agreements; and (3) shares issued by open-end
investment companies registered under the Investment Company Act.
2. INSIDER TRADING.
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A. INTRODUCTION.
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Under the antifraud provisions of the Exchange Act, an
affirmative duty to disclose material non-public information
traditionally has been imposed on corporate "insiders" participating
in securities transactions. Ordinarily, "insiders," who are corporate
figures such as officers, directors and controlling shareholders who
have access to confidential corporate information, owe a duty to a
company's shareholders not to trade on that information. A corporate
insider who is in possession of material inside information must
either disclose it to the investing public or abstain from trading
while the inside information remains undisclosed. If disclosure prior
to effecting a purchase or sale would be improper or unrealistic, the
alternative is to forego the transaction.
The duty to disclose inside information before trading arises
from: (i) the existence of a relationship giving access to
information intended to be available only for a corporate purpose and
not for the personal benefit of anyone; and (ii) the unfairness of
allowing a corporate insider to take advantage of that information
while knowing it is unavailable to the investing public. The
Securities and Exchange Commission ("SEC") has recognized that "a
significant purpose of the Exchange Act was to eliminate the idea that
the use of inside information for personal advantage was a normal
emolument of corporate office."
Under some circumstances, "outsiders" become fiduciaries of
shareholders and thus become subject to the same duty to disclose or
abstain as an insider. Such persons assume the duties of an insider
temporarily, by virtue of a special relationship with the company.
For the duty to be imposed, however, the company must expect the
outsider to keep the disclosed non-public information confidential,
and the relationship must imply that duty. For investment advisers,
such as the Company, this duty may be imposed on the basis of the
Company's access to material non-public information and the
confidentiality relationship which may exist between the Company and
the registrant whose securities the Company may trade on behalf of its
clients. As hereinafter discussed, any reference to an "insider"
shall apply to all access persons of the Company, and shall relate to
all securities of which the access person has inside information.
Liability for trading on confidential information also has been
extended to non-insiders under a theory of misappropriating
information from their employers. The misappropriation theory broadly
proscribes the conversion by insiders or others of material non-public
information in connection with the purchase or sale of securities.
While a person may gain a competitive advantage in the securities
marketplace through skill, one may not gain such an advantage by
stealing material non-public information in breach of an employer-
imposed fiduciary duty to confidentiality. The misappropriation
theory has been applied to find violations of the antifraud provisions
by an employee of a financial printer, investment banking employees,
and a law firm's officer manager for trading in securities of an
employer's corporate client on the basis of misappropriated
information.
B. MATERIALITY OF INSIDE INFORMATION.
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Despite the "disclose or refrain from trading" rule, an insider
is not always foreclosed from investing merely because he or she may
be more familiar with company operations than are outside investors.
An insider's duty to either disclose information or refrain from
dealing arises in "those situations which are essentially
extraordinary in nature and which are reasonably certain to have a
substantial effect on the market price of the security." The Exchange
Act only requires the disclosure of material facts, allowing outsiders
to make their own evaluations in reaching investment decisions.
The test of materiality has been described as weighing whether
the information in question would have been important to a reasonable
investor in determining whether to buy, sell or hold a security.
C. DISCLOSURE OF INSIDE INFORMATION.
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Information loses its inside character once it has been
effectively disclosed. It may be difficult to determine when the
information is sufficiently disseminated to allow an insider to trade.
An insider who traded immediately after release to the news media, for
example, but before the news was published, was held in violation of
the insider trading prohibition. In that case, the court said that,
at a minimum, the insider should not have placed his order until the
news could reasonably have been expected to appear over the media of
widest circulation. The SEC has said that "in order to effect a
meaningful public disclosure of corporate information, it must be
disseminated in a manner calculated to reach the securities market
place in general through recognized channels of distribution, and
public investors must be afforded a reasonable waiting period to react
to the information."
How soon after the release of material information insiders may
begin to trade thus depends both on how thoroughly and how quickly the
information is published by the news-wire services and the press. In
addition, insiders should refrain from trading following dissemination
until the public has had an opportunity to evaluate the information
thoroughly. Where the impact of the information on investment
decisions is readily understandable, as in the case of an earnings
report, the required waiting period will be shorter than when the
information must be interpreted before its bearing on investment
decisions can be evaluated. While the waiting period is dependent on
the circumstances, certain stock exchanges recommend that insiders
wait for at least 24 hours after the general publication of the
information in a national medium. Where publication is not so
widespread, a minimum waiting period of 48 to 72 hours is recommended.
D. TIPPING.
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Not only are insiders, as fiduciaries, forbidden to personally
use undisclosed corporate information to their advantage, they also
may not give such information to an outsider for the similarly
improper purpose of exploiting the information for personal gain.
"Tipping" is viewed as a means of indirectly violating the "disclose
or abstain from trading" rule which applies to insiders.
Liability for tipping derives from the rule that silence when
trading with inside information constitutes a fraud under the
antifraud provisions of the Exchange Act if there is a relationship of
trust and confidence between shareholders and the person trading on
the inside information. Unlike insiders who have independent
fiduciary duties to both the company and its shareholders, the typical
tippee has no such relationship. A tippee, however, is not always
free to trade on inside information. If the insider-tipper has
breached his or her fiduciary duty to shareholders, the tippee
inherits the duty to disclose or abstain.
The tippee's duty to disclose or abstain is a derivative of the
duty of the insider. Some tippees assume an insider's duty to the
shareholders not because of receiving the insider information, but
rather because it has been made available to them improperly. A
tippee assumes a fiduciary duty to the shareholders of a company not
to trade on material non-public information only when the insider has
breached a fiduciary duty to the shareholders by disclosing the
information to the tippee and the tippee knows or should know there
has been a breach.
E. CONCLUSION.
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The purpose of the foregoing discussion is to educate and
sensitize all Access Persons of the Company to insider trading issues.
Insider trading, or tipping, by any access person of the Company is
strictly prohibited.
3. PROHIBITED ACTIVITIES.
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A. UNLAWFUL ACTIONS:
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No Access Person shall, in connection with the purchase or sale,
directly or indirectly, of a "Security Held or To Be Acquired" by any
registered investment company or account for which the Company serves
as investment advisor:
(1) Employ any device, scheme, or artifice to defraud
any client or prospective client of the Company;
(2) Make any untrue statement of material fact to the
Company or omit to state a material fact necessary to make
the statements made to the Company, in light of the
circumstances under which they are made, not misleading;
(3) Engage in any act, transaction, practice, or
course of business which operates as a fraud or deceit upon
any client or prospective client of the Company;
(4) Engage in any act, practice, or course of business
which is fraudulent, deceptive or manipulative.
For purposes of this Section 3A, a "Security Held or To Be
Acquired" by any registered investment company or account to which the
Company serves as investment adviser shall mean any Covered Security
which, within the most recent 15 days: (a) is or has been held by a
registered investment company or account to which the Company serves
as investment adviser; or (b) is being or has been considered by the
Company for purchase by any registered investment company or account
to which the Company serves as investment adviser. In addition, the
securities subject to the foregoing anti-fraud provisions include any
option to purchase or sell, and any security that is exchangeable for
or convertible into, any Covered Security that is held or to be
acquired by any registered investment company or account to which the
Company serves as investment adviser.
B. BLACKOUT PERIOD FOR SECURITY TRANSACTIONS.
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No Access Person shall purchase or sell, directly or indirectly,
for his/her own account, or acquire any beneficial ownership in, any
security which has been purchased or sold within the preceding fifteen
(15) days by any registered investment company or account to which the
Company serves as investment adviser or which to his/her knowledge
will be purchased or sold within the succeeding fifteen (15) days by
any such registered investment company or account to which the Company
serves as investment adviser, unless such purchase or sale is approved
in writing by Albert O. Nicholas, David O. Nicholas or Jeffrey T. May,
or a person delegated by any of the foregoing, prior to the
effectuation of such purchase or sale. A copy of such written
approval shall be retained for a period of at least five (5) years.
C. No Access Person shall purchase any security from, or sell any
security to, any registered investment company or account to which the
Company serves as investment adviser, unless the sale or purchase
involves solely securities of which the registered investment company
is the issuer.
4. PRE-APPROVAL OF INVESTMENTS IN IPOS AND LIMITED OFFERINGS.
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All Company Investment Personnel must obtain approval from the
Company (either Albert O. Nicholas, David O. Nicholas or Jeffrey T.
May, or a person delegated by any of the foregoing) before directly or
indirectly acquiring beneficial ownership of any securities in an
Initial Public Offering or in a Limited Offering.
For purposes of this requirement, the following definitions set
forth in Rule 17j-1 shall apply:
INVESTMENT PERSONNEL shall mean (1) any employee of the Company (or
any company in control of the Company) who, in connection with his or
her regular functions or duties, makes or participates in making
recommendations regarding the purchase or sale of securities by the
Company for the benefit of any registered investment company or
account to which the Company serves as investment adviser; and (2) any
natural person who controls the Company and who obtains information
concerning recommendations made by the Company to any registered
investment company or account to which the Company serves as
investment adviser regarding the purchase or sale of securities.
INITIAL PUBLIC OFFERING shall mean an offering of securities under the
Securities Act of 1933, as amended ("Securities Act"), the issuer of
which, immediately before the registration, was not subject to the
reporting requirements of Sections 13 or 15(d) of the Exchange Act.
LIMITED OFFERING shall mean an offering that is exempt from
registration under the Securities Act pursuant to Section 4(2) or
Section 4(6) or pursuant to Rule 504, Rule 505 and Rule 506 under the
Securities Act.
5. EXEMPT PURCHASES AND SALES.
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The prohibitions in Sections 2 and 3 of this Code shall not be
applicable to purchases effected upon exercise of rights issued by an
issuer pro rata to all holders of a class of its securities, to the
extent such rights were acquired from such issuer, and sales of such
rights so acquired.
6. REPORTING.
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A. INITIAL HOLDINGS REPORTS.
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No later than ten (10) days after a person becomes an Access
Person of the Company, he/she must provide an Initial Holdings
Report to the Company which contains the following information:
(1) the title, number of shares and principal amount of each
Covered Security in which the Access Person had any direct or
indirect beneficial ownership when the person became an Access
Person; (2) the name of any broker, dealer or bank with whom the
Access Person maintained an account in which any securities (not
limited solely to Covered Securities) were held for the direct or
indirect benefit of the Access Person as of the date the person
became an Access Person; and (3) the date that the report is
submitted by the Access Person.
B. QUARTERLY TRANSACTION REPORTS.
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Within ten (10) days of the end of each calendar quarter of the
Company, each Access Person shall submit a Quarterly Transaction
Report to the Company. The Quarterly Transaction Report shall
contain the following information:
(1) with respect to any transaction during the quarter
in a Covered Security in which the Access Person had any
direct or indirect beneficial ownership:
(a) the date of the transaction, the title, the
interest rate and maturity date (if applicable), the
number of shares and the principal amount of each
Covered Security involved;
(b) the nature of the transaction (i.e., purchase, sale or
any other type of acquisition or disposition);
(c) the price of the Covered Security at which
the transaction was effected;
(d) the name of the broker, dealer or bank
through which the transaction was effected; and
(e) the date that the report is submitted by an
Access Person.
(2) with respect to any account established by the
Access Person in which any securities (not limited solely to
Covered Securities) were held during the quarter for the
direct or indirect benefit of the Access Person:
(a) the name of the broker, dealer or bank with
whom the Access Person established the account;
(b) the date the account was established; and
(c) the date that the report is submitted by the
Access Person.
C. ANNUAL HOLDINGS REPORT.
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Annually, each Access Person shall submit an Annual Holdings
Report containing the following information: (1) the title,
number of shares and principal amount of each Covered Security in
which the Access Person had any direct or indirect beneficial
ownership; (2) the name of any broker, dealer or bank with whom
the Access Person maintains an account in which any securities
(not limited solely to Covered Securities) are held for the
direct or indirect benefit of the Access Person; and (3) the date
that the report is submitted by the Access Person.
D. EXCEPTIONS FROM REPORTING REQUIREMENTS.
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(1) An Access Person of the Company need not make a
Quarterly Transaction Report to the Company if all the
information in the report would duplicate information to be
recorded under Rule 204-2(a)(12) or Rule 204-2(a)(13) under
the Investment Advisers Act; and
(2) An Access Person need not make any reports
pursuant to this Section 6 with respect to transactions in
Covered Securities over which the person has no direct or
indirect influence or control.
7. ADMINISTRATION OF CODE OF ETHICS.
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A. The Company shall adopt procedures reasonably necessary to
ensure compliance with the provisions of the Code, including
procedures regarding Notification of Reporting Obligations (as
required by Rule 17j-1(d)(4)), Review of Reports (as required by
17j-1(d)(3)) and Record Keeping Requirements (as required by Rule
17j-1(f)).
B. At least once a year, management of the Company shall
provide the Board of Directors of each registered investment
company to which the Company serves as investment adviser with an
Annual Issues and Certification Report as required by Rule 17j-
1(c)(2)(ii) of the Investment Company Act.
8. SANCTIONS.
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Mr. Jeffrey T. May, or another person designated by the Board of
Directors, shall review all reports submitted, and shall determine if
any violations of the Code have occurred. If a violation of this Code
occurs, Albert O. Nicholas or the Board of Directors of the Company
may impose such sanctions as they deem appropriate in the
circumstances, including termination of employment of the violator.
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