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Exhibit 23 (p)(9)
CODE OF ETHICS
AND
INSIDER TRADING POLICY
GENERAL
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Geewax, Terker & Company ("Employer"), a registered investment advisor, has
adopted this Code of Ethics and Insider Trading Policy pursuant of to the
requirements of Rule 17j-1 under the Investment Company Act of 1940 and the
Investment Advisers Act of 1940.
1. Definitions
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(a) "Covered Person" means Employer and each partner and employee of
Employer.
(b) "Covered Account" means investment account(s) of as a Covered Person,
or as to which a the investment account the spouse, minor including a
trust in Covered Person serves of a Covered Person and children and
adults which any such person as trustee. the living in the same house
has a beneficial interest
(c) "Security" shall have the meaning set forth in Section 2(a)(36) of the
Investment Company Act of 1940 (see Appendix), except the following
exempt securities -- securities issued by the Government of the United
States or by federal agencies and which are direct obligations of the
United States, bankers acceptances, certificates of deposit,
commercial paper and shares of registered open-end investment
companies and securities which mature not more than one year from the
acquisition date that are guaranteed by the U.S. Government.
(d) "Beneficial Ownership" shall have the meaning ascribed thereto under
Section 16 of the Securities Exchange Act of 1934.
(e) A security is "being considered for purchase or sale" or is "being
purchased or sold" when an analyst or portfolio manager of Employer
has decided to purchase or sell the security for a Client Account.
(f) "Client Account" means the investment account of foundation,
corporation, syndicate, Fund or other any person, firm, trust,
partnership, entity that is managed by Employer.
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(g) "Fund" means an investment company, which is registered under the
Investment Company Act of 1940, as to which Employer serves as
investment advisor or sub-advisor.
2. Conduct of Covered Persons
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(a) No Covered Person, in connection with the purchase or sale by
such Person of a security (or an option for such security) which
is also held, or within the most recent 15 days has been held, or
which is being considered by Employer for purchase, by a Fund:
i) shall employ any device, scheme, or artifice to defraud such
Fund;
ii) make to the Fund any untrue statement of a material fact, or
omit to state a material fact necessary in order to make the
statements made, in light of the circumstances under which
they are made, not misleading;
iii) engage in any act, practice, or course of business which
operates or would operate as a fraud or deceit upon the
Fund; or
iv) engage in any manipulative practice with respect to the
Fund.
(b) It is the ongoing responsibility of Employer's securities
analysts and portfolio managers to prepare and maintain, on a
daily basis, a current schedule of securities that are being
purchased or sold, or being considered for purchase or sale, for
Client Accounts ("Schedule of Securities"). It shall be the
responsibility of John J. Geewax ("Mr. Geewax") to maintain such
Schedule in Employer's trading room where it shall be available
for review by Covered Persons. Except for transactions in exempt
securities, as defined in section 1(c) above, it is the
obligation of every Covered Person to review the then current
Schedule of Securities before engaging in any personal securities
transactions or recommending the purchase or sale of any security
to any person having a beneficial interest in a Covered Account.
(c) No Covered Person shall purchase or sell, directly or indirectly,
any security, or right, warrant or option for such security, in
which he or she has, or by reason of such transaction acquires,
any direct or indirect Beneficial Ownership and (i) which to his
or her actual knowledge is then being considered for purchase or
sale, or is being purchased or sold by Employer for a Client
Account or (ii) which is listed on the then current Schedule of
Securities.
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(d) No Covered Person shall inform any person who has a beneficial
interest in a Covered Account of the identity of any security
referred to in clause (i) or (ii) of paragraph 2(c) above.
(e) Only occasional meals/tickets and holiday gifts from broker
dealers may be accepted by a Covered Person.
(f) No Covered person shall acquire any equity securities in an
initial public offering or private placement without the prior
approval of Mr. Geewax or Mr. Terker.
(g) No Covered Person shall serve on the Board of Directors of any
publicly traded company without the prior approval of either Mr.
Geewax or Mr. Terker.
Exempted Transactions
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The prohibition of paragraphs (a) and (c) of section 2 above shall not apply to:
(a) Purchases or sales effected in any Covered Account over which a
Covered Person has no direct or indirect influence or control.
(b) Purchases or sales of securities which are not eligible for
purchase or sale by any Client Account.
(c) Acquisition or dispositions which are non-volitional on the
part of either the Covered Person or a Client Account.
(d) Purchases which are part of an automatic dividend reinvestment
plan.
(e) 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 such rights were acquired from such issuer, and sales
of rights so acquired.
4. Procedural Matters
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(a) Mr. Geewax shall:
(i) Furnish a copy of this Code of Ethics and Insider
Trading Policy to each Covered Person and obtain from each such
Person a written acknowledgment of the receipt thereof.
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(ii) Receive and maintain the reports provided for by
Section 5 of this Code.
(iii) Decide whether the facts contained in any such report
filed hereunder when any such report indicates that a
Covered Person engaged in a transaction in a security
that within 15 days thereof was held by a Client
Account or was to be acquired by Account.
(iv) Maintain the records required by paragraph (d) of Rule
17j-1.
5. Reporting
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(a) Within 15 days after the end of each month every Covered Person
shall provide Mr. Geewax with a report of all transactions for
the purchase or sale of securities in a Covered Account, which
identifies the broker or dealer that effected the transaction,
the securities and the nature of the transaction, the trade and
settlement dates and purchase or sale price. Mr. Geewax will
review these confirmations to detect violations of the Code of
Ethics. Mr. Geewax will be responsible, in his sole discretion,
to determine whether a violation has occurred.
(b) Every Covered Person shall certify annually that:
(i) they have read and understand the Code of Ethics and
recognize that they are subject thereto;
(ii) they have complied with the requirements of the Code of
Ethics; and
(iii) they have reported all personal securities transactions
required to be reported pursuant to the requirements of the Code
of Ethics.
6. Violations
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Upon deciding that a violation of this Code has occurred, Mr. Geewax shall
impose such sanctions as they deem appropriate under the circumstances,
including fine, disgorgement of profits, termination or suspension of employment
with, or without compensation.
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SECTION II. POLICY STATEMENT ON INSIDER TRADING
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Employer forbids any Covered Person from trading, either personally or on behalf
of a Client Account, on material nonpublic information, or communicating
material nonpublic information to other persons in violation of the law. This
conduct is frequently referred to as "insider trading". Employer's policy
applies to every Covered Person and extends to activities within and outside
their duties for Employer. Every Covered Person must read and retain a copy of
this policy statement. Any questions regarding Employer's Policy and procedures
should be referred to Mr. Geewax.
The term "insider trading" is not defined in the federal securities laws, but
generally is used to refer to the use of material nonpublic information to trade
in securities (whether or not one is an "insider") or to communications of
material nonpublic information to others.
While the law concerning insider trading is not static, it is generally
understood that the law prohibits:
i) trading by an insider, while in possession of material nonpublic
information, or
ii) trading by a non-insider, while in possession of material nonpublic
information, where the information either was disclosed to the non-
insider in violation of an insider's duty to keep it confidential or
was misappropriated, or
iii) communicating material nonpublic information to others.
The elements of insider trading and the penalties for such unlawful
conduct are discussed below. If, after reviewing this policy
statement, you have any questions you should consult Mr. Geewax.
1. Who is an Insider?
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The concept of "insider" is broad. It includes partners and employees of a
company. In addition, a person can be a "temporary insider" if he or she enters
into a special confidential relationship in the conduct of a company's affairs
and as a result is given access to information solely for the company's
purposes. A temporary insider can include among others, a company's attorneys,
accountants, consultants, bank lending officers, and the employees of such
organizations. In addition, Employer may become a temporary insider of a company
it advises or for which it
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performs other services. According to the Supreme Court, the company must expect
the outsider to keep the disclosed nonpublic information confidential and the
relationship must at least imply such a duty before the outsider will be
considered an insider.
2. What is Material Information?
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Trading on inside information is not a basis for liability unless the
information is material. "Material information" generally is defined as
information for which there is a substantial likelihood that a reasonable
investor would consider it important in making his or her investment decisions,
or information that is reasonably certain to have a substantial effect on the
price of a company's securities. Information that Covered Persons should
consider material includes, but is not limited to: dividend changes, earnings
estimates, changes in previously released earnings estimates, significant merger
or acquisition proposals or agreements, major litigation, liquidation problems,
and extraordinary management developments.
Material information does not have to relate to a company's business. For
example, in Carpenter v. U.S., 108 U.S. 316 (1987), the Supreme Court considered
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material certain information about the contents of a forthcoming newspaper
column that was expected to affect the market price of a security. In that
case, a Wall Street Journal reporter was found criminally liable for disclosing
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to others the dates that reports on various companies would appear in the
Journal and whether those reports would be favorable or not.
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3. What is Nonpublic Information?
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Information is nonpublic until it has been effectively communicated to the
market place. One must be able to point to some fact to show that the
information is generally public. For example, information found in a report
filed with the SEC, or appearing in Dow Jones, Reuters Economic Services, The
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Wall Street Journal or other publications of general circulation would be
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considered public.
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4. Basis for Liability.
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i) fiduciary duty theory
In 1980, the Supreme Court found that there is no general duty to
disclose before trading on material nonpublic information, but that
such a duty arises only where there is a fiduciary relationship. That
is, there must be a relationship between the parties to the
transaction such that one party has a right to expect that the other
party will disclose any material nonpublic information or refrain from
trading. Chiarella v. U.S., 445 U.S. 22 (1980).
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In Dirks v. SEC, 463 U.S. 646 (1983), the Supreme Court stated
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alternate theories under which non-insiders can acquire the fiduciary
duties of insiders: they can enter into a confidential relationship
with the company through which they gain information (i.e., attorneys,
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accountants), or they can acquire a fiduciary duty to the company's
shareholders as "tippees" if they are aware or should have been aware
that they have been given confidential information by an insider who
has violated his fiduciary duty to the company's shareholders.
However, in the "tippee" situation, a breach of duty occurs only if
the insider personally benefits, directly or indirectly from the
disclosure. The benefit does not have to be pecuniary, but can be a
gift, a reputational benefit that will translate into future earnings,
or even evidence of relationship that suggests a quid pro quo.
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ii) misappropriation theory
Another basis for insider trading liability is the "misappropriation"
theory, where liability is established when trading occurs on material
nonpublic information that was stolen or misappropriated from any
other person. In U.S. v. Carpenter, supra, the Court found, in 1987, a
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columnist defrauded The Wall Street Journal when he stole information
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from the Journal and used it for trading in the securities markets. It
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should be noted that the misappropriation theory can be used to reach
a variety of individuals not previously thought to be encompassed
under the fiduciary duty theory.
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5. Penalties for Insider Trading
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Penalties for trading on or communicating material nonpublic information are
severe, both for individuals involved in such unlawful conduct and their
employers. A person can be subject to some or all of the penalties below even if
he or she does not personally benefit from the violation. Penalties include:
i) civil injunctions
ii) treble damages
iii) disgorgement of profits
iv) jail sentences
v) fines for the person who committed the violation of up to
three times the profit gained or loss avoided, whether or not
the person actually benefitted, and
vi) fines for the employer or other controlling person of up to
the greater of $1,000.00 or three times the amount of the
profit gained or loss avoided.
In addition, any violation of this policy statement can be expected to result in
serious sanctions by Employer, including dismissal of the persons involved.
SECTION III. PROCEDURES TO IMPLEMENT EMPLOYER'S INSIDER TRADING POLICY
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The following procedures have been established to aid Covered Persons to avoid
insider trading and to aid Employer in preventing, detecting and imposing
sanctions against insider trading. Every Covered Person of Employer must follow
these procedures or risk serious sanctions, including dismissal, substantial
personal liability and criminal penalties. If you have any questions about these
procedures, you should consult Mr. Geewax.
1. Identifying Inside Information
Before trading for yourself or others, including Client Accounts, in the
securities of a company about which you may have potential inside information,
ask yourself the following questions:
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i) Is the information material? Is this information that an investor
would consider important in making his or her investment decisions? Is
this information that would substantially effect the market price of
the securities if generally disclosed?
ii) Is the information nonpublic? To whom has this information been
provided? Has the information been effectively communicated to the
marketplace by being published in Reuters, The Wall Street Journal, or
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other publications of general circulation?
If, after consideration of the above, you believe that the information is
material and nonpublic, or if you have questions as to whether the information
is material and nonpublic, you should take the following steps:
i) Report the matter immediately to Mr. Geewax.
ii) Do not purchase or sell the securities on behalf of yourself or
others, including Client Accounts.
iii) Do not communicate the information inside or outside Employer, other
than to Mr. Geewax.
iv) After Mr. Geewax has reviewed the issue, you will be instructed to
continue the prohibitions against trading and communication, or you
will be allowed to trade and communicate the information.
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ADDENDUM TO
CODE OF ETHICS
AND
INSIDER TRADING POLICY
The following is an addendum to our code of ethics that we implemented in the
last year. It is meant to add further restrictions on employee trading,
consistent with our industry practices.
I. Employee securities transactions (does not include open end mutual funds)
a. Blackout period of trading: an employee is not allowed to trade in a
security within seven days of our clients trading in the same security.
b. Short term profits: any short term profits (defined as profits within
60 days) have to be forfeited to a charity of employee's realized own
choosing.
c. Trade notices: employees should first get a written authorization from
the company's compliance officer before executing a trade. Furthermore, the
compliance officer should receive duplicate confirms for any security
transaction.
d. Security asset listing: at the end of each calendar year, each
employee should give to the firm's compliance officer an asset listing of
securities held (if any)
II. Initial Public Offerings
Even though we do not invest in initial public offerings (IPO's) for our
clients, it is preferable that we maintain a restriction against any employee
participating in an IPO as there is a potential for preferential treatment from
a broker if any employee participates in an IPO.
The Undersigned has read and accepted the addendum to the Geewax, Terker &
Company Code of Ethics and Insider Trading Policy and has retained a copy of the
said document.
_________________ _____________________________________________
Date Signature
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APPENDIX
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"Security means any note, stock, treasury stock, bond, debenture, evidence of
indebtedness, certificate of interest or participation in any profit-sharing
agreement, collateral-trust certificate, preorganization certificate or
subscription, transferable share, investment contract, voting-trust certificate,
certificate of deposit for a security, fractional undivided interest in oil,
gas, or other mineral rights, any put, call, straddle, option, or privilege on
any security (including a certificate of deposit) or on any group or index of
securities (including any interest therein or based on the value thereof), or
any put, call, straddle option, or privilege entered into in a national
securities exchange relating to foreign currency, or, in general, any interest
or instrument commonly known as a "security", or any certificate of interest or
participation in, temporary or interim certificate for, receipt for, guarantee
of, or warrant or right to subscribe to or purchase, any of the foregoing.
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SIGNATURE PAGE
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The Undersigned has read, understands and agrees to abide by the Geewax, Terker
& Company Code of Ethics and Insider Trading Policy, and The Addendum to the
Code of Ethics and Insider Trading Policy, and has retained a copy of the said
document.
____________ __________________________________________________
Date Signature
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