<PAGE> 1
Exhibit 99 (o)(2)
FIRST SUMMIT CAPITAL MANAGEMENT
CODE OF ETHICS
1. DEFINITIONS
1.1 Access Person. "Access Person" means any Representative or Advisory
Person of the Adviser.
1.2 Adviser. "Adviser" means First Summit Capital Management, an Ohio
general partnership registered as an investment adviser under the Investment
Advisers Act of 1940.
1.3 Advisory Person. "Advisory Person" means (i) any employee or
Representative of the Adviser (or of any company in control relationship to the
Adviser), who, in connection with his or her regular functions or duties, makes,
participates in, or obtains information regarding the purchase or sale of
Covered Securities by a Client, or whose functions relate to the making of any
recommendation with respect to such purchases or sales; and (ii) any natural
person in a control relationship to the Adviser who obtains information
concerning recommendations made to a Client with regard to the purchase or sale
of Covered Securities.
1.4 Beneficial Ownership. "Beneficial ownership" shall be interpreted
in the same manner as it would be under Rule 16a-1(a)(2) under the Securities
Exchange Act of 1934 in determining whether a person is a beneficial owner of a
security for purposes of Section 16 of the Exchange Act and the rules and
regulations thereunder. Any report required by this Code of Ethics may contain a
statement that the report will not be construed as an admission that the person
making the report has any direct or indirect beneficial ownership in the Covered
Security to which the report relates.
1
<PAGE> 2
1.5 Client. "Client" means any investment company, financial
institution or other company or person for whom the Adviser acts as an
investment adviser as that term is defined in the Investment Advisers Act of
1940.
1.6 Control. "Control" shall have the same meaning as that set forth in
Section 2(a)(9) of the Investment Company Act of 1940.
1.7 Covered Security. "Covered Security" shall have the meaning set
forth in Section 2(a)(36) of the Investment Company Act of 1940, except that it
shall not include securities which are direct obligations of the United States,
bankers' acceptances, bank certificates of deposit, commercial paper, high
quality short-term debt instruments (including repurchase agreements) and shares
issued by registered open-end investment companies.
1.8 Initial Public Offering. "Initial Public Offering" means an
offering of securities registered under the Securities Act of 1933, the issuer
of which, immediately before the registration, was not subject to the reporting
requirements of sections 13 or 15(d) of the Securities Exchange Act of 1934.
1.9 Investment Personnel. "Investment Personnel" means (i) any employee
or Representative of the Adviser (or of any company in a control relationship to
the Adviser) 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 a Client; or (ii) any natural person who controls the Adviser
and who obtains information concerning recommendations made to a Client
regarding the purchase or sale of securities by a Client.
1.10 Limited Offering. "Limited Offering" means an offering that is
exempt from registration under the Securities Act of 1933 pursuant to section
4(2) or section 4(6), or pursuant to rule 504, rule 505, or rule 506 under the
Securities Act of 1933.
2
<PAGE> 3
1.11 Purchase or Sale of a Covered Security. "Purchase or sale of a
Covered Security" includes, among other things, the writing of an option to
purchase or sell a Covered Security.
1.12 Security Held or to be Acquired by a Client. "Security Held or to
be Acquired by a Client" means i) any Covered Security which, within the most
recent 15 days: (A) is or has been held by a Client; or (B) is being or has been
considered by a Client or the Adviser for purchase by a Client; and (ii) any
option to purchase or sell, and any security convertible into or exchangeable
for, a Covered Security described above.
1.13 Additional Definitions. All other terms used in this Code shall be
defined by reference to the Investment Company Act of 1940 or the Securities
Exchange Act of 1934.
2. PURPOSE OF THE CODE
2.1 This Code is designed to prevent certain practices by Access
Persons in connection with the purchase or sale, directly or indirectly, by
Access Persons of a Security Held or to be Acquired by a Client. These include:
(a) employing any device, scheme or artifice to defraud a Client;
(b) making any untrue statement of a material fact to a Client or
omitting to state a material fact necessary in order to make
the statements made to a Client, in light of the circumstances
under which they are made, not misleading;
(c) engaging in any act, practice, or course of business that
operates or would operate as a fraud or deceit upon a Client;
or
(d) engaging in any manipulative practice with respect to a
Client.
In furtherance of this purpose, all Access Persons in executing
personal securities transactions should at all times (i) place the interests of
Clients first, (ii) avoid any actual or
3
<PAGE> 4
potential conflict of interest, (iii) not abuse their positions of trust and
responsibility and (iv) not otherwise take inappropriate advantage of their
positions.
3. PROHIBITED PURCHASES AND SALES
3.1 Investment Personnel must obtain approval from the Adviser before
directly or indirectly acquiring beneficial ownership in any securities in an
Initial Public Offering or in a Limited Offering.
3.2 No Advisory Person shall purchase or sell, directly or indirectly,
any Covered Security in which he or she has, or by reason of such transaction
would acquire, any direct or indirect beneficial ownership on a day that any
Client has a pending "buy" or "sell" order in the same security until the order
is withdrawn or executed.
3.3 No Investment Personnel shall purchase or sell, directly or
indirectly, any Covered Security in which he or she has, or by reason of such
transaction would acquire, any direct or indirect beneficial ownership within a
period of seven calendar days before or after any transaction in such security
by or on behalf of any Client that he or she manages. In the event of such
purchase or sale by the Investment Personnel within the prescribed period, the
purchase or sale shall, if practicable, be rescinded or, if rescission shall not
be practicable, any profits realized on such purchase or sale shall be forfeited
to the Client.
3.4 No Access Person shall purchase or sell, directly or indirectly,
any Covered Security in which he or she has, or by reason of such transaction
would acquire, any direct or indirect beneficial ownership that to his or her
actual knowledge at the time of such purchase or sale:
(a) is currently under active consideration for purchase or sale
by a Client; or
4
<PAGE> 5
(b) is being purchased or sold by a Client until a period of five
business days has elapsed from the date activity ceased in the
purchase or sale of such security by the Client.
3.5 The prohibitions in paragraph 3.4 above shall apply to the purchase
or sale by any Access Person of any convertible security, option or warrant of
any issuer whose underlying securities are under active consideration by or for
a Client.
3.6 The prohibitions of this Section 3. shall not apply to purchases
and sales specified in Section 5. of this Code.
4. SHORT-TERM TRADING
4.1 No Investment Personnel shall profit from the purchase and sale or
sale and purchase of the same or equivalent security within any 60 calendar-day
period unless it is subsequently determined by the Adviser that in light of all
the surrounding circumstances application of this sanction is not warranted. In
the event of such transactions by an Investment Person within the prescribed
period, the later transaction shall, if practicable, be rescinded or, if
rescission shall not be practicable, any profits realized on the transactions
shall be forfeited to any charitable organization selected by the Adviser.
4.2 The sanctions of this Section 4. shall not apply to purchases and
sales specified in Section 5. of this Code.
5. EXEMPTED TRANSACTIONS
5.1 The prohibitions in Sections 3. and 4. of this Code shall not apply
to the following transactions by Access Persons:
(a) purchases or sales effected in any account over which an
Access Person has no direct or indirect influence or control;
5
<PAGE> 6
(b) purchases or sales of securities which are not eligible for
purchase or sale by any Client;
(c) purchases effected upon the exercise of rights issued by an
issuer pro rata to all holders of a class of its securities,
to the extent the rights were acquired from the issuer, and
the sales of the rights so acquired;
(d) purchases or sales which are non-volitional on the part of
either the Access Person or the Client; and
(e) purchases which are part of an automatic dividend reinvestment
plan.
6. PROHIBITED BUSINESS CONDUCT
6.1 No Access Person shall, either directly or indirectly:
(a) engage in any business transaction or arrangement for personal
profit based on confidential information gained by way of
employment with the Adviser.
(b) communicate non-public information about security transactions
of Clients whether current or prospective, to anyone unless
necessary as part of the regular course of a Client's
business. Non-public information regarding particular
securities must not be given to anyone who is not a
Representative or an officer of the Client without prior
approval of the President of the Client or Steven R.
Sutermeister (or his delegate).
(c) accept a gift, favor, or service of significant value from any
person or company which, to the actual knowledge of such
Access Person, does business or might do business with any
Client or the Adviser.
6
<PAGE> 7
(d) buy or sell any security or any other property from or to a
Client, provided that this item shall not be construed to
prohibit a person from being a policy owner of a variable
annuity or life insurance policy which is funded or issued by
a Client.
6.2 No Investment Personnel shall serve on the board of directors of
any company, excluding registered investment companies, which is subject to the
reporting obligations of Section 12 or 15 of the Securities Exchange Act of 1934
Act.
7. PRE-CLEARANCE
7.1 No Advisory Person shall effect any transaction in a Covered
Security in which he or she has, or by reason of such transaction would acquire,
any direct or indirect beneficial ownership without the prior written approval
of the Adviser; provided, however, that no person shall be required to pre-clear
a transaction (i) effected for any account over which such person has no direct
or indirect influence or control, (ii) which is non-volitional on the part of
such person or (iii) which is part of an automatic dividend reinvestment plan. A
preclearance approval shall be valid for a period of five (5) business days.
8. REPORTING
8.1 Reports Required. Unless excepted in section 8.2, every Access
Person must report to the Adviser:
(a) Initial Holdings Reports. No later than 10 days after the person
becomes an Access Person, 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;
7
<PAGE> 8
(2) The name of any broker, dealer or bank with whom the
Access Person maintained an account in which any 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. No later than 10 days after the end
of a calendar quarter, 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 with or
through which the transaction was effected; and
(e) The date that the report is submitted by the
Access Person.
(2) With respect to any account established by the Access
Person in which any 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
8
<PAGE> 9
(c) The date that the report is submitted by the
Access Person.
(c) Annual Holdings Reports. Annually, the following information (which
information must be current as of a date no more than 30 days before the report
is submitted):
(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 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.
8.2 Exceptions from Reporting Requirements.
(a) A person need not make a report under section 8.1 with respect to
transactions effected for, and Covered Securities held in, any account over
which the person has no direct or indirect influence or control.
(b) An Access Person need not make a quarterly transaction report to
the Adviser under section 8.1 if all the information in the report would
duplicate information required to be recorded under sections 275.204-2(a)(12) or
275.204-2(a)(13) of the Investment Advisers Act of 1940.
(c) An Access Person need not make a quarterly transaction report under
section 8.1 if the report would duplicate information contained in broker trade
confirmations or account statements received by the Adviser with respect to the
Access Person in the time period required by section 8.1 (b), if all of the
information required by that paragraph is contained in the broker trade
confirmations or account statements, or in the records of the Adviser.
9
<PAGE> 10
8.3 Every Access Person aware of any violation of this Code shall
report the violation to the Manager of the Adviser in an expedient fashion.
8.4 Every Access Person shall certify on an annual basis that he or she
has (I) read and understands this Code and recognizes that he or she is subject
to the Code; (ii) complied with all requirements of the Code to which he or she
is subject; and (iii) disclosed or reported all personal securities transactions
required to be disclosed or reported pursuant to the requirements of the Code.
9. REVIEW OF REPORTS
9.1 The Adviser shall institute procedures by which appropriate
management or compliance personnel review the reports described in section 8.1.
10. NOTIFICATION OF REPORTING OBLIGATION
10.1 The Adviser shall identify all Access Persons who are required to
make these reports and must inform those Access Persons of their reporting
obligation.
11. ADMINISTRATION OF CODE OF ETHICS
11.1 The Adviser shall use reasonable diligence and institute
procedures reasonably necessary to prevent violations of the Code of Ethics.
11.2 No less frequently than annually, the Adviser shall furnish to the
board of directors or trustees of every registered investment company (other
than a unit investment trust) for which it acts as investment adviser, a written
report that:
(a) Describes any issues arising under the Code of Ethics or procedures
since the last report to the board of directors or trustees, including, but not
limited to, information about material violations of the Code or procedures and
sanctions imposed in response to the material violations; and
10
<PAGE> 11
(b) Certifies that the Adviser has adopted procedures reasonably
necessary to prevent Access Persons from violating the Code.
12. RECORDKEEPING REQUIREMENTS
12.1 The Adviser shall, at its principal place of business, maintain
records in the manner and to the extent set forth below, and must make these
records available to the Commission or any representative of the Commission at
any time and from time to time for reasonable periodic, special or other
examination:
(a) A copy of the Code of Ethics that is in effect, or at any time
within the past five years was in effect, must be maintained in an easily
accessible place;
(b) A record of any violation of the Code of Ethics, and of any action
taken as a result of the violation, must be maintained in an easily accessible
place for at least five years after the end of the fiscal year in which the
violation occurs;
(c) A copy of each report made by an Access Person as required by
section 8., including any information provided in lieu of the reports of section
8., must be maintained for at least five years after the end of the fiscal year
in which the report is made or the information is provided, the first two years
in an easily accessible place;
(d) A record of all persons, currently or within the past five years,
who are or were required to make reports under section 8., or who are or were
responsible for reviewing these reports, must be maintained in an easily
accessible place; and
(e) A copy of each report required by section 11.2 must be maintained
for at least five years after the end of the fiscal year in which it is made,
the first two years in an easily accessible place.
11
<PAGE> 12
12.2 The Adviser shall maintain a record of any decision, and the
reasons supporting the decision, to approve the acquisition by Investment
Personnel of securities under section 3.1, for at least five years after the end
of the fiscal year in which the approval is granted.
12
<PAGE> 13
First Summit Capital Management Code of Ethics Certification
will be provided under separate cover.
