Anti-Corruption and Anti-Bribery Policy
Candela Corporation (together with its affiliates, the “Company”) is committed to conducting all aspects of its business in accordance with the highest legal and ethical standards and expects all employees and other persons acting on its behalf to uphold this commitment. This Anti-Corruption and Anti-Bribery Policy (the “Policy”) applies globally to all employees, officers, directors, consultants, contractors, agents and other persons associated with or acting on behalf of the Company (collectively, “Company Representatives”).
The purpose of this Policy is to:
- outline the Company’s expectations related to preventing corruption and bribery;
- provide guidelines for compliance with the United States Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act, and other applicable anti-bribery laws; and
- equip Company Representatives with the necessary education and tools to ensure their understanding of and adherence to the Company’s requirements in this very important area.
The Company has a zero-tolerance policy for corrupt or illegal practices. Bribery is a criminal offense in most countries in which our Company operates, and penalties for paying, offering, promising or receiving bribes may be severe — individuals may be imprisoned and fined substantial amounts. Violations of this Policy may also result in disciplinary action by the Company, up to and including immediate termination of employment or relationship with the Company.
All Company Representatives must review and abide by this Policy at all times. While you must be familiar with and abide by this Policy, this Policy does not attempt to cover every situation that may arise. If you have questions regarding the proper course of action in any situation, you are strongly encouraged to consult with the Legal Department. Do not attempt to make difficult decisions on your own.
Reporting Suspected Violations
Given the importance that the Company places on complying with the FCPA and all other applicable anti-corruption laws, as well as the significance of the potential penalties for non-compliance, Company Representatives are obligated to report suspected violations of this Policy or of any anti-corruption law as soon as possible to their supervisor and/or the Legal Department. The Company prohibits retaliation in any form against employees who either make good faith reports or who participate in the investigation of a report of suspected misconduct.
To Whom Does This Policy Apply?
This Policy applies to all Company Representatives – all of the Company’s employees, officers, directors, consultants, contractors, agents and other persons associated with or acting on behalf of the Company – in all of the Company’s operations worldwide, without exception. It applies to operations conducted by the Company’s non-U.S. subsidiaries, affiliates, and joint ventures.
All Company Representatives must adhere to this Policy, the FCPA and all other applicable anti-corruption and anti-bribery laws and regulations.
Prohibition on Corruption and Bribery
The Company prohibits all forms of corruption and bribery by all Company Representatives and any third parties engaged to perform activities or provide goods or services on the Company’s behalf.
All Company Representatives are prohibited from giving, offering, promising, soliciting or receiving anything of value to improperly influence a decision affecting the Company’s business. This prohibition applies to interactions with all individuals and entities, including Government Officials and Government Entities (as defined below), and private individuals, entities and groups. Stricter requirements may be imposed in certain jurisdictions or by certain business counterparties. If a government, counterparty, or local market imposes greater restrictions than those set forth in this Policy, Company Representatives must comply with those stricter requirements.
This Policy also prohibits indirect payments or things of value intended to improperly influence the recipient. Giving, offering, promising, soliciting or receiving anything of value from or to a relative, spouse, or colleague of a Government Official or private individual to improperly influence that person, or any person or entity with whom they are affiliated, is a form of bribery and is strictly prohibited.
Considering the foregoing, if requested to offer, pay, give, accept or, in general, do anything that may be deemed as a bribe or any other kind of corrupt practice, the Company Representative must absolutely refuse to do so and also report the request or conduct to the Compliance Officer or the Compliance Officer’s designee.
What is the FCPA?
The FCPA is a United States law that prohibits bribery of a broadly defined group of Government Officials. It also requires the maintenance of accurate and reasonably detailed books and accounting records.
The Company is committed to conducting its business in full compliance with the FCPA. In addition, the jurisdictional reach of the FCPA is broad and will reach non-U.S. citizens located outside the United States. It is therefore crucial that all Company Representatives act in complete accordance with this Policy and the FCPA at all times. Although the FCPA prohibits bribes and improper payments to Government Officials, you must remember that this Policy prohibits all forms of corruption and bribery, regardless of whether the recipient is a Government Official or a private individual or entity.
What does “anything of value” mean?
The term “anything of value” is very broad and includes not only cash and cash equivalents (such as gift cards), but also loans, gifts, business opportunities, charitable contributions, meals and entertainment expenses, travel and accommodations. “Anything of value” also includes intangible benefits, such as job, educational or internship opportunities.
There is no exception under this Policy or the FCPA for minimal or token payments. A payment of even a small amount of cash or an item of reasonable value would violate this Policy if the payment or item is intended as a bribe or given under improper circumstances. The key is that the payment must be made with corrupt intent in order to violate this Policy or the FCPA – that is, that it be given in exchange for some improper business advantage.
What is a “Government Entity”?
A Government Entity is any government, whether local, municipal, state or federal; any public international organization (such as the United Nations or the Red Cross); any department, agency, or instrumentality of any such government or organization; any political party; or any company, entity, or organization owned or controlled by, or acting in an official capacity on behalf of, any of the above. Government Entities include, for example, state-owned or state-run banks, investment funds and utilities.
Who is a “Government Official”?
A Government Official is any individual working for or on behalf of a Government Entity, or any candidate for political office. “Government Official” is a broad term and may include, for example:
- any officer, employee or other person working, whether full or part-time, in an official capacity on behalf of a Government Entity or a public international organization;
- members of royal families;
- candidates for political office;
- anyone acting for or on behalf of a Government Official;
- family members and close associates of Government Officials;
- “healthcare professionals” employed by state-owned or publicly-funded healthcare service providers;
- regulators, procurement officers or others in charge of government departments or projects; and
- employees of state-owned or state-controlled businesses.
You are responsible for obtaining the information necessary to determine whether a proposed transaction involves a Government Official. If you are uncertain about the potential involvement of a Government Official in any transaction, contact the Legal Department.
Dealing with healthcare professionals
In many cases, healthcare professionals (“HCPs”) qualify as Government Officials; therefore, any interactions with any such HCPs may present a higher risk of being considered a bribe or another form of corrupt practice. The particular risk areas include:
- gifts and hospitality provided to HCPs;
- sponsorships of HCPs to attend conferences, congresses and other meetings (e.g. training and educational events);
- donations and samples provided to healthcare institutions and HCPs;
- fee for service arrangements.
What is the UK Bribery Act?
The UK Bribery Act is a law in the United Kingdom that prohibits all forms of commercial bribery, regardless of whether a Government Official is involved. The law applies to all offenses committed in the UK, to all UK corporations, and any company that carries on part of a business in the UK, no matter where the offense occurs.
As with the FCPA, the Company is committed to conducting its business in full compliance with the UK Bribery Act. All Company Representatives must act in accordance with this Policy and the UK Bribery Act at all times.
Facilitating or “expediting” payments — also known as “grease” payments — are payments made in furtherance of routine governmental action for non-discretionary acts. Examples of such payments are paying to expedite a visa or to connect utilities to an office.
Facilitating payments are prohibited by many countries, including by the UK Bribery Act. Unless you receive prior written approval from the Legal Department, you are prohibited from making or offering to make any facilitating payment.
Gifts, Meals, Entertainment and Other Hospitality
The purpose of business hospitality is to create goodwill and sound working relationships, when appropriate per local custom — never to gain an unfair or improper advantage. It is never permissible to pay for even modest meals or entertainment for a corrupt purpose or to gain an improper advantage.
Giving or receiving nominal and appropriate gifts, meals, entertainment or other hospitality is permissible as long as such hospitality is of moderate value, is reasonable and customary under the circumstances, is given openly and transparently and complies with all applicable laws and internal requirements.
Gifts, meals, entertainment and other hospitality may never be used as a bribe or as a pretense or cover for making an improper payment of the nature prohibited by this Policy. This prohibition applies equally to Government Officials and to representatives of commercial organizations.
Provided that a gift, meal, entertainment expense or other hospitality meets the criteria above, and does not involve a Government Official, Company Representatives may spend up to a value of US $100 per person without needing to obtain prior written approval from the Legal Department. If a Company Representative wishes to provide a gift, meal, entertainment, or other hospitality exceeding US $100 per person, or in any amount when provided to a Government Official, the Company Representative must obtain prior written approval from the Legal Department/Compliance Officer. For all gift, meal, entertainment and hospitality expenses, regardless of amount, Company Representatives are required to promptly and accurately report the expense; to provide receipts and other supporting documentation; and to list the names and titles of the individuals and the agencies/organizations with which they are affiliated. Company Representatives may also be asked to certify compliance with this Policy at the time reimbursement is sought.
Certain types of gifts, meals and entertainment are never permissible. Some examples of these types of impermissible payments include:
- gifts, meals, entertainment or other things of value that are given or offered for something in return
- gifts, meals, entertainment or other things of value that may have, or that may be seen as having, a material effect on any prospective Company business transaction, or that may otherwise give rise to a conflict of interest
- gifts, meals, entertainment or other things of value involving parties involved in a competitive bidding process where the Company is bidding
- gifts, meals, entertainment or other things of value that are illegal or known to be prohibited by the recipient’s organization
- gifts, meals, entertainment or other things of value that are provided without complete and open transparency
- any gift of cash or cash equivalents (for example, gift cards, gift certificates, loans, shares, and share options)
- frequent or repeated gifts, meals, entertainment or other things of value given to the same individual or organization
- excessive or extravagant gifts, meals, entertainment or other things of value and any inappropriate gifts, meals, entertainment, or other things of value that may adversely affect the Company’s reputation
Note that this Policy applies even if reimbursement is not being sought for the expenses. In other words, paying a meal or entertainment expense out of your own pocket does not avoid the requirements of this Policy.
Company Representatives must not accept, or permit any member of their immediate family to accept any gifts, gratuities or other favors from any customer, supplier or other person doing or seeking to do business with the Company, other than items of nominal value. Any gifts that are not of nominal value should be returned immediately and reported to your supervisor. If immediate return is not practical, they should be given to the Company for charitable disposition.
If you have any questions regarding whether an expense is proper, contact the Legal Department for guidance prior to providing the gift, meal, entertainment or thing of value.
Dealings with Third Parties
The Company can be held liable if an improper payment is made by a third party on the Company’s behalf. Third parties may include, for example, consultants, joint venture partners, shipping agents, distributors and sales representatives. For this reason, it is very important that the Company be assured that any third parties acting on its behalf have a good reputation and are aware of the Company’s policies regarding prevention of bribes and other improper payments.
Prior to engaging a third party to act on behalf of the Company, the responsible Company employee must consult with the Legal Department and take appropriate precautions, which could include adequate risk-based due diligence, in order to ensure that the third party is reputable and does not have a history of involvement in improper practices. In addition, in some circumstances, due diligence must be performed during the engagement of a third party to ensure that the third party maintains its reputation.
All agreements with third parties must be in writing. These written agreements must contain provisions requiring third parties to comply fully with applicable anti-corruption and anti-bribery laws. In some circumstances, after consultation with the Legal Department, the Company might seek to include audit rights that allow the Company to inspect the books and records of the third party with respect to its relationship with the Company, or to require periodic certifications from the third party stating that it has fully complied with applicable anti-corruption laws and has not paid any bribes or other improper payments in connection with its work for the Company.
In all situations, payments to a third party must:
- bear a reasonable relationship to the value of the services rendered;
- be fully and accurately documented, including written terms of service, fees to be rendered, amounts to be paid, and methods of payment;
- not violate applicable laws or this Policy;
- not be made in cash or cash equivalents;
- be made to the third party’s bank account in the country where the services are performed or where the third party’s offices are located; and
- be properly, accurately and promptly recorded in the Company’s books and records consistent with the Company’s applicable record keeping policies.
Before and after a third-party is engaged, Company employees should always be aware of any “red flags” that may arise with respect to such third-party. Examples of the types of red flags that suggest that the third-party is at risk for making improper payments include:
- Refusal or hesitancy to provide information regarding the third-party’s operations or ownership
- Submission of vague or unsupported invoices
- Requests for cash payments or excessive payments or gifts
- Requests for unusual payments, such as payments to an unrelated third-party or payments to an account in a country other than where the third-party is located or is working
- The third-party is related to a Government Official, or has a close personal or business relationship with a Government Official
- The third-party has been charged with a violation of foreign law
- Requests for political or charitable contributions
- A demand or strong suggestion by a Government Official that a particular third- party should be retained
- Refusal to abide by this Policy
- The suggestion that a third-party can use connections to accomplish a particular task for the Company
Employment and Internships
On occasion, Government Officials or the Company’s business partners may request that internships or employment opportunities be provided to certain individuals. Offering internships or employment to Government Officials or the Company’s business partners may be viewed as providing an item of value to them.
If a candidate is interviewed for an internship or employment within the ordinary course of filling a position, the Compliance Officer or the Compliance Officer’s designee must be notified of the candidate’s relationship to a Government Official or the Company’s business partner. If a candidate related to a Government Official or the Company’s business partner is interviewed outside of the ordinary course of filling a position, any internship or employment offer must be pre-approved by the Compliance Officer or the Compliance Officer’s designee. This notification allows the Compliance Officer or the Compliance Officer’s designee to fully analyze the appropriateness of any such retention to avoid even the appearance of impropriety.
Charitable Contributions and Political Donations
Company Representatives are free to participate in political processes and to make donations to charities on their own behalf. Company Representatives may not, however, make any charitable contributions or political donations on behalf of the Company without the prior written approval of the Legal Department. Company Representatives also may not make political or charitable donations, whether in their own name or on behalf of the Company, to obtain or retain business or to gain an improper business advantage. Political contributions include any contributions or donations made directly or indirectly to political parties, governmental entities or organizations, Government Officials or private citizens involved in politics. As with all gifts, meals, entertainment and hospitality expenses, all charitable contributions and political donations made on the Company’s behalf must be promptly, accurately and fully supported with appropriate documentation and must be recorded in the Company’s books and records. The true amount and nature of the payment must also always be reported.
Internal Controls and Books and Records
Falsifying books and records, including contracts, invoices, ledger entries, wire transfer instructions, cash requests and expense authorization and reimbursement requests, is strictly prohibited by the FCPA and by this Policy. Company Representatives must never make a false or misleading statement in any of the Company’s records or to anyone, including internal or external auditors, about the Company’s financial and other business activities. The Company is required by law to keep and maintain corporate books, records, registries and accounts that accurately and precisely reflect the transactions and dispositions of assets of the Company. Company Representatives must never change, omit or manipulate books or records to hide improper activities or to misrepresent the nature of the registered transaction.
The potential penalties for violations of anti-corruption laws can be very severe. First and foremost, the Company’s reputation would be harmed if any actual, or even alleged, improper payments were to be made on the Company’s behalf. In addition, the FCPA provides for criminal and civil penalties for violations of the law.
Individuals who violate the FCPA may be subject to imprisonment for up to 20 years as well as to monetary penalties of up to US $5 million (or twice the gain resulting from the violation). The FCPA also provides for fines of up to US $25 million (or twice the gain resulting from the violation) for companies that commit FCPA violations.
Compliance Procedures and Training
As part of the Company’s ongoing commitment to anti-corruption compliance, all employees must receive and review a copy of this Policy. All such employees must then certify in writing that they (1) have reviewed the Policy; (2) agree to abide by the Policy; and (3) agree to report any potential violations of the Policy to the Compliance Officer or the Compliance Officer’s designee.
In addition, the Company will offer periodic anti-corruption compliance training programs to educate employees about the requirements and obligations of anti-corruption laws and this Policy. All employees of the Company must participate in such training and the Compliance Officer must retain attendance records establishing compliance with this requirement.
If you have any questions regarding the requirements of this Policy, the scope of this Policy or whether a particular payment is permissible under this Policy or applicable anti-corruption laws, please contact the Legal Department. Do not attempt to make difficult decisions or resolve questions regarding the permissibility of a payment on your own.