Global Anti-Corruption Policy
Merit Medical Systems, Inc. (“Merit”) expects its directors, officers, and employees to act with the highest ethical standards and in compliance with all applicable laws, rules, and regulations, including the U.S. Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act, and the anti-corruption laws of any other nations in which Merit, directly or indirectly, conducts business (collectively, the “Global Anti-Bribery Laws”). Merit expects the same from any third parties that act on Merit’s behalf. Merit does not tolerate corruption, regardless of local customs or traditions.
An excellent reputation is one of Merit’s most important assets. Acting ethically and with personal integrity is of critical importance to Merit’s business. Merit’s commitment to integrity means that Merit would rather lose a sale or opportunity than win the sale through improper or unethical means.
All Merit personnel and third parties must comply with this Global Anti-Corruption Policy (“Policy”). This Policy supplements Merit’s Global Compliance Policy and Code of Business Conduct and Ethics, each of which remains in effect. Any Merit employee or third party who violates this Policy is subject, as applicable, to termination of employment, termination of contract or business relationship, and reporting to applicable governmental authorities.
II. Anti-Corruption Policy Requirements
A. Anti-Bribery Provisions
This Policy requires all Merit personnel and third parties to comply with the FCPA and all other Global Anti-Bribery Laws. Merit personnel and third parties may not:
- (i) offer, pay, promise to pay, or authorize the payment of, directly or indirectly, Anything of Value to a Government Official with the corrupt intent of obtaining or retaining business (or an advantage in the conduct of business) for Merit, (ii) offer, promise, or give a bribe or a financial or other advantage to another person or entity to encourage that person or entity (or another person or entity) to perform their functions or activities improperly, (iii) accept or receive any bribe, kickback or other illicit payment or benefit in violation of the FCPA or any other Global Anti-Bribery Laws, or (iv) otherwise violate the FCPA or any other Global Anti-Bribery Laws; or
- accept any bribe, kickback, or illicit payment or benefit of any kind, from any customer, supplier or any other person or entity that has any business relationship with Merit.
This Policy prohibits corrupt payments whether they are made directly or indirectly – i.e., through a third-party agent or other intermediary. Merit personnel can therefore face liability if they make or authorize a payment, gift, or Anything of Value to a third party while knowing that the third party intends to give at least a portion thereof to another party as a bribe. “Knowing” does not require actual knowledge, but instead can include being aware that the third party is engaging in improper conduct, having a firm belief that improper conduct is substantially certain to occur, or consciously disregarding evidence that a third party was engaging in improper conduct. Merit’s employees, therefore, cannot simply “turn a blind eye” to evidence of misconduct by third parties acting on Merit’s behalf. Merit’s employees are strictly prohibited from making or authorizing payments to a third party if they have reason to suspect the third party is acting as an intermediary for a Government Official, or offering to give bribes, or giving bribes, to companies or private individuals. In addition to the restrictions created by this Policy and the FCPA, local law may prohibit direct or indirect payments to non-Government Officials.
B. Accurate Books and Records, and Internal Controls
Merit must create and maintain books and records that reflect financial transactions and dispositions of assets fairly, accurately, and in reasonable detail. False or misleading entries in Merit’s books and records, “slush funds,” or other “off-the-books” accounts are strictly prohibited. All Merit personnel and third parties must cooperate with Merit’s efforts to maintain such books and records, no matter how small the amount of the transaction.
Additionally, Merit must maintain a system of internal accounting controls sufficient to provide reasonable assurances that Merit’s transactions are accurately recorded in its books and records in accordance with local finance and accounting policies and procedures, all Merit assets are accounted for, and access to Merit assets is controlled.
III. Specific Rules
A. Gifts and Hospitality
Merit recognizes that a small gift or token of esteem or gratitude may occasionally be an appropriate way for business people to display respect for each other. The acceptance of gifts is specifically regulated by the Global Anti-Bribery Laws.
The value of the gift is considered to be the greater of: (1) the actual cost of the gift or (2) the retail value, if any, of the gift. Any gift must follow the following guidelines (the “Standard Guidelines”):
- The gift must not be offered or provided as part of a quid pro quo—i.e., with the improper intention of influencing the recipient to do something in return that would benefit Merit or to refrain from doing something that would create a disadvantage to Merit;
- The gift must be provided openly, rather than secretly;
- Generally, the gift must never be of a value or nature, or given in a circumstance, that could cause embarrassment to either Merit or the recipient. Merit specifically prohibits providing gifts with a value of more than $250 (USD); providing or receiving more than two gifts to or from the same recipient in a period of one year requires notification to the Chief Compliance Officer. Under no circumstances should the aggregate value of gifts given to one recipient exceed $500 (USD) in any given year;
- The gift must never be offered in the form of cash or cash equivalents, e.g., gift certificates, or shopping vouchers;
- Any gift must be given or provided to the appropriate business counterparties, e.g., Government Officials, and never to their guests, spouses, family members, friends or any related parties;
- Any gift must be adequately supported by documentation and all associated expenditures must be accurately recorded in reasonable detail in Merit’s books and records in accordance with local finance and accounting policies and procedures; and
- The gift is reasonable, customary, and lawful in the country or region where it is exchanged.
B. Travel and Meals
Merit may provide payment or reimbursement for reasonable travel and meal expenses of Health Care Professionals and/or Government Officials, but only in accordance with Merit’s Global Compliance Policy. If any Sunshine or transparency laws apply, the applicable Merit employee will ensure that the value of the travel or meal is accurately and timely reported. Under no circumstances will Merit pay for or reimburse the expense of sightseeing or recreational trips taken by such Government Officials.
C. Facilitation Payments Prohibited
Facilitation payments are payments made to government or private-sector employees, as a personal benefit to them, to secure or expedite routine, non-discretionary government actions. No Merit personnel or third party may make a facilitation payment.
D. Foreign Political Contributions and Donations
In some countries, it may be lawful for U.S.-based companies or non-U.S. entities to make contributions to politicians, political candidates or parties. A political contribution includes not only monetary contributions, but also payments for fundraising dinners and similar events. Merit’s policy is that no Merit funds, assets, services, or facilities shall be contributed to any politician, candidate for political office, political party, or political action committee in a foreign country without the prior written approval of the Chief Executive Officer and Chief Compliance Officer. All the following criteria must be met when Merit makes a political contribution to a politician, candidate for political office, political party, or political action committee in a foreign country:
- Political contributions must never be provided with the expectation of receiving any improper benefit for Merit.
- Compliance with Local Law: Merit’s Chief Compliance Officer must be consulted and provided a written determination that such payment is legal under applicable local laws and Global Anti-Corruption Laws.
- Executive Approval: Merit’s Chief Executive Officer and Chief Compliance Officer must approve any political contribution before any payment is made.
- Record Retention: All documents pertaining to the contribution shall be maintained by the Accounting Department.
E. Donations to US and Non-US Charities
Charitable contributions may not be used as a means to conceal a bribe to a Government Official or Health Care Professional. Even bona fide donations could be construed as a corrupt attempt to influence a Government Official or Health Care Professional. Accordingly, contributions to charities must never be a condition for, or be made in an effort to influence any governmental or corporate action or decision. The following procedures must be observed before making any donation of Merit funds to any charitable entity:
- Written Notice to Chief Executive Officer: A written notice describing the charity, the identity of the party requesting the donation, the names of persons contacted at the charity, the amount of the proposed contribution, and any supporting documentation should be submitted to the Chief Executive Officer, Vice President of Government Affairs, and the Chief Compliance Officer. The Chief Compliance Officer must determine that the contribution fully complies with local laws before any funds are disbursed.
- Background Check: Due diligence must be performed to ensure that the recipient is a legitimate charitable organization and not an entity controlled for the benefit of a Government Official or Health Care Professional. In addition, the charitable organization may not be selected or designated by any Government Official or Health Care Professional.
- Record Retention: All documents relating to the donation shall be maintained by the Accounting Department.
IV. Third Party Assessment Process
“Third Parties” include Merit’s contractors, consultants, vendors, agents, distributors, customers, and affiliates, as well as any of the foregoing of any wholly or partially owned subsidiary of Merit. This Policy prohibits any Third Parties acting on behalf of Merit from offering anything of value to influence any business action or decision. Merit and its officers, directors and employees can be held responsible for the improper actions of Third Parties.
A. Onboarding Due Diligence
Merit employees responsible for engaging Third Parties must consider the anti-corruption risks of each Third Party. With the assistance of the Chief Compliance Officer, as needed, Merit employees must consider conducting a thorough background check to ensure that the proposed Third Party possesses both the requisite qualifications and a solid reputation for business integrity.
Agreements with Third Parties must be in writing and must describe the services to be performed and/or products to be provided, the fee basis, the amounts to be paid, and other material terms and conditions of the representation. Such agreements must be approved by Legal and the Chief Compliance Officer. Further, payments must bear a reasonable relationship to the value of the products and services rendered, must be fully and accurately documented, and must not violate governing anti-corruption laws. Payments to Third Parties should never be made in cash, and should 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.
V. Certification and Compliance
A. Certification for Employees
Corporate officers, general/country managers, finance directors/managers, sales and marketing personnel must complete the anti-corruption training and certify compliance on an annual basis via either an electronic or written form. Such training and certification may be satisfied either through the Merit-developed course (live or online) or a third-party anti-corruption course made available to such employees in English or one of the offered languages.
B. Certification for Third Parties
Third Parties are required to annually complete anti-corruption training, and sign and submit an annual compliance certification via either an electronic or written form. Each Third Party shall complete the certification to acknowledge compliance with this Policy. Copies of all such documentation and certifications shall be maintained by the Chief Compliance Officer.
VI. Red Flags or Other Warning Signs
While not exclusive, the following warnings or “red flags” may be signs that a Third Party is engaged in prohibited behavior:
- Engagement of the Third Party was suggested by a Government Official or the customer, particularly one with discretionary authority or influence over the award of the business at issue;
- There is an apparent lack of qualifications or resources on the part of the Third Party;
- Subcontractors or consultants used by the Third Party add little value or use multiple agents for the same scope of work;
- The Third Party objects to FCPA or other appropriate anti-corruption representations in Merit agreements;
- The Third Party refuses to sign an anti-corruption certification;
- The Third Party is the employer of a Government Official, close relative, or close business associate of an official;
- A Government official, a close relative of a Government Official, or a close business associate serves as an officer or director of the Health Care Professional or Third Party.
- The Third Party requests unusual payment terms, such as payments in cash, payment in another country’s currency, payment to another party, or payment in a third country;
- The Third Party requests undocumented, inaccurately characterized or secret arrangements, such as payment obligations not reflected in a written contract;
- The Third Party has been accused of or investigated for providing or offering to provide a government official or commercial customer with a bribe in the past;
- The Third Party does not have a code of conduct, ethics code, or anti-corruption program that is distributed to management and individuals in its sales organization.
If you become aware of any acts that violate this Policy, you are encouraged to talk to supervisors, managers, or any members of Merit’s Compliance Committee or Legal Department about the observed suspected behavior. Merit strictly prohibits retaliation against anyone for raising or helping to address this type of issue. Additionally, if you have questions or issues related to this Policy, please ask before you act by speaking with your supervisor or the Chief Compliance Officer. Employees should consult the specific reporting requirements and procedures in the Merit Code of Business Conduct and Ethics.
Merit also maintains an Ethics Hotline to anonymously receive complaints, allegations, and other ethics issues. Employees may use this Ethics Hotline to report any concerns, potential violations, or other ethics issues to management. Merit takes each situation seriously and will respond quickly to address any received complaints. The Hotline can be reached at 1-877-874-8416 (US) or http://www.merit.ethicspoint.com/.
A. “Anything of Value” means anything that has monetary value or would constitute an advantage, financial or otherwise, to the recipient, such as, but not limited to: cash or a cash equivalent, services, offers of employment, fee-for-service contracts, charitable donations, political contributions, travel and/or entertainment expenses, meals, product samples, gifts, conference and registration fees, and discounts not readily available to the public.
B. Government Official – includes anyone, regardless of rank, who is:
- An officer or employee of any local, provincial or national government (for example, doctors, medical professionals, members of parliament, police officers, firefighters, members of the military, tax authorities, customs inspectors, etc.);
- A director, officer, representative, agent or employee of any government owned or controlled business or company;
- An officer or employee of a public international organization (for example, the United Nations, International Olympic Committee, International Red Cross, World Bank, etc.);
- Any person acting in an official capacity or on behalf of any government or public international organization (for example, an official advisor to a government);
- Any officer or employee of a political party;
- Any candidate for political office; and
- A close relative (for example, parent, sibling, spouse or child) of any of the above.
C. “Health Care Professional” means individuals (clinical or non-clinical, including but not limited to physicians, nurses, technicians and research coordinators) or entities (such as hospitals or group purchasing bodies) that directly or indirectly purchase, lease, recommend, use, arrange for the purchase or lease of or prescribe Merit’s products.