Anti-Corruption, Anti-Bribery Compliance Policy
The Andersons, Inc. and its subsidiaries (collectively, the “Company”) are committed to doing business with integrity. This means avoiding corruption in all forms, including bribery. We abide by all applicable Anti-Corruption Laws, and local laws in every country in which we do business.
The U.S. Foreign Corrupt Practices Act (“FCPA”), the U.K. Bribery Act, and other anti-corruption laws prohibit any payment or offer of payment to a “foreign official” or a private business person for the purpose of influencing that official or business person to assist in obtaining or retaining business for a company (all, collectively, “Anti-Corruption Laws”). The Company has established this policy in order to ensure that all employees of the Company, its agents, and its affiliates are aware of these Anti-Corruption Laws and engage in ethical and legal practices. This policy is focused on the FCPA because of its broad application; however, it is the Company’s policy to comply with all applicable Anti-Corruption Laws, including laws applicable to foreign governmental officials in their home country.
No Company director, officer, employee, or agent has authority to give or to offer anything of value to a “foreign official,” government employee or to any person while knowing that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to any foreign official, government employee, or private business person for the purpose of inducing that person to affect any government act or business decision in a manner that will assist the Company or any of its subsidiaries or divisions in obtaining or retaining business. No Company director, officer, employee, or agent has authority to receive anything of value from a “foreign official,” government employee or from any person while knowing that all or a portion of such money or thing of value will be received any foreign official, government employee, or private business person for the purpose of inducing the Company to affect any government act or business decision that will assist the Company or any of its subsidiaries or divisions in obtaining or retaining business. Furthermore, every officer, employee, and agent is obligated by this policy and federal law to keep books, records, and accounts that accurately and fairly reflect all transactions in and dispositions of Company assets. In addition, every officer, employee, and agent is prohibited from receiving improper payments or things of value from third parties in exchange for offering benefits from the Company such as lower prices, business deals, etc.
The FCPA generally applies to all U.S. corporations, partnerships, and other business entities, as well as all persons acting on behalf of those entities. Regardless of the applicability of the FCPA or its jurisdictional reach, this policy applies to The Andersons and its subsidiaries, including those which are not registered in the United States, as well as its and their officers, directors, employees, and agents.
The FCPA and this policy prohibit any payment or offer of payment to a “foreign official” for the purpose of influencing that official to assist in obtaining or retaining business for the Company. This policy further prohibits the receipt of improper payments or things of value. The FCPA and this policy apply to any act or event that is “in furtherance of” a payment to a foreign official. Further, the “payment” clause of the FCPA is broadly construed. It covers not only the actual payment of money but also an offer, promise or authorization of the payment of money and an offer, gift, promise, or authorization of the giving of “anything of value.” The FCPA and this policy also apply to payments to foreign political parties, officials of foreign political parties, and candidates for foreign political office.
Record Keeping Requirements. In addition to its anti-bribery provisions, the FCPA also imposes certain accounting requirements on the Company. Specifically, the FCPA requires that the Company maintain books, records, and accounts that, in reasonable detail, accurately reflect the transactions and dispositions of the Company. This policy incorporates these record keeping requirements. In order to comply with these requirements, it is imperative that Company employees, agents and others acting on the Company’s behalf maintain complete and accurate records with respect to all transactions and dispositions undertaken on behalf of the Company.
Fundamentals and Definitions
The consequences of failing to comply with the FCPA are very serious. Violation of the FCPA and related laws by a Company employee can result in millions of dollars in fines against the Company and can subject the employee to prosecution, criminal fines, and imprisonment, as well as disciplinary action by the Company, including but not limited to termination of employment. Note that the FCPA states that fines and penalties imposed upon individuals may not be paid directly or indirectly by any corporation for which they may have acted.
It is the responsibility of all members of senior management to supervise, monitor and train the employees under their supervision to ensure that the purposes of this policy are fulfilled.
It is the responsibility of each employee to comply with this policy and with procedures and guidelines established in furtherance of this policy. Failure to comply with the policy is grounds for disciplinary action, up to and including termination.
The following guidance is provided to employees and anyone acting on behalf of the Company to clarify how this policy applies:
- No payment or thing of value of any kind may be promised, offered, made, or authorized to any of the following:
- a “foreign official,” which is defined as any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such government or public international organization;
- any foreign political party or official thereof or any candidate for foreign political office; or
- any other person, individual, or entity, at the suggestion, request, or direction, or for the benefit of a foreign official, a foreign political party or official thereof, or a candidate for foreign political office.
- “Anything of value” is defined broadly and to include any financial or other advantage, including but not limited to: cash, cash equivalents (such as gift cards or vouchers), gifts, entertainment, meals, drinks, refreshments, other hospitality, use of vehicles, payment or reimbursement for travel expenses, vacations, accommodations, or valuable favors (such as educational and employment opportunities for friends and relatives or donations to charitable organizations requested by the government official), and loans, discounts or rebates. Certain small gifts, as are normally exchanged in the ordinary course of business in the U.S. and valued at less than $25, such as coffee cups or baseball caps, may be given to customers or other third parties. Each BU should establish standards and recordkeeping for the giving of these small items, and in no case should small items be given with such frequency as to create an appearance of wrongdoing. Receiving nominal or small gifts from third parties without any benefits in exchange, such as those for holiday etiquette, for example, are permissible under Anti-Corruption Laws. (Note that the Standards of Business Conduct and Response Program policy has different requirements, guidelines, and monetary thresholds for domestic gifts and social outings.)
- If you have any doubt about whether a person is a foreign official, raise the question with the member of senior management responsible for your function in the Company. Remember that in many countries, due to their nationalized economic systems, many ordinary occupations and businesses may qualify as being part of the foreign government. The senior managers will be responsible for obtaining advice from the Legal Department.
- Complete and accurate records sufficient to show compliance with the above rules, the FCPA generally, and any other Company policies must be maintained at all times. This means, among other things, that when a payment is intended to go to a particular party or entity for a particular purpose, the records with respect to that payment must accurately reflect the true recipient and the true purpose of the payment.
Facilitating Payments. In certain parts of the world it is common for companies to pay low level government employees “facilitating payments” or “grease payments” to expedite or secure the performance of a routine governmental action, such as to obtain a visa or a permit. Though these payments may be customary in certain parts of the world, these payments may violate U.S. and other anti-bribery laws. Most international conventions and anti-bribery laws outside the U.S. do not allow facilitation payments. Other than in cases of facilitation payments to avoid imminent bodily harm or threat to personal safety, you must obtain preapproval from the Chief Financial Officer for any payment to any government official, no matter how common or ordinary the payment may appear. Nothing in this policy shall prevent the Company from paying taxes, duties or other obligations under the established law of the country in which it is doing business.
Retaining Agents. Because the actions of a third party acting as an agent or representative of the Company can expose the Company to liability under the FCPA, great care should be taken in the retention of such agents and representatives. A sufficient background check and investigation should be undertaken to ensure that any such representative does not engage in any improper practices. In determining whether to engage a particular representative, factors such as the representative’s reputation and qualifications, the manner and reasonableness of compensation, the relationship, if any, between the owners and employees of the representative and a foreign official, the identity of any partners, the willingness of the representative to fully disclose its relationship with the Company and the legality of the relationship under local law must be considered. [Outside the U.S., agents and their ownership interests should at minimum be screened against applicable Politically Exposed Persons (PEP) lists.]
Government-Owned Businesses. In many countries it is a common practice for government officials to own or operate business enterprises. While the FCPA and related laws do not prohibit legitimate business relationships with business enterprises owned or controlled by foreign officials, great care must be taken to avoid any association with any such enterprise in circumstances that might constitute an evasion of the FCPA. If you intend to engage in business with a company that is owned by one or more government official or entities, you must contact the Legal Department for approval.
Retention of Professionals. No person acting on behalf of the Company may enter into any transaction with agents, contractors, consultants, lawyers or other persons that is intended or designed to permit such persons to circumvent currency, tax or other laws of a foreign country. Any transaction that has the appearance of permitting any person to circumvent such laws must be avoided. Particular care must be taken in respect to “split payments” (i.e., payments for services that are made outside the country in which the services are performed, other than payments in the country in which the provider of the services is incorporated and has an established presence, or payments inside the country in other than the local currency).
Any transaction, no matter how seemingly insignificant, that might give rise to a violation of the FCPA or this policy must promptly be reported to the General Counsel. Such report may also be made in accordance with the Response Program section of the Standards of Business Conduct and Response Program policy.
Any questions concerning the FCPA and related reporting requirements may be addressed to the Legal Department.
Other Issues Related to International Trade Compliance
The Company has also adopted an International Trade Compliance Policy that addresses other compliance matters related to U.S. export and trade sanctions laws. Please refer to that policy for further guidance on conducting international business.