COMPLIANCE POLICY MANUAL

Transcription

1 COMPLIANCE POLICY MANUAL FOREIGN CORRUPT PRACTICES ACT 07/24/2012 Policy Number SUBJECT: FOREIGN CORRUPT PRACTICES ACT Application: Worldwide Strategic Business Units and Subsidiaries. It is the Company s policy to comply not only with the letter but with the spirit of the FCPA. All employees of Tenneco and its subsidiaries must refrain from any acts which are prohibited by this law or any other law. Compliance with the provisions and requirements of the FCPA will be reviewed regularly by the Law Department and Internal Audit Department. RELEVANT STATUTES AND PENALTIES The Foreign Corrupt Practices Act ("FCPA") prohibits United States companies, their shareholders, directors, agents, officers and employees from the payment or authorization of the payment of any money, or the giving or authorization of the giving of anything of value, directly or indirectly, to a foreign official for the purpose of influencing any act or decision of such foreign official, or inducing such foreign official to use his influence to assist the Company in obtaining or retaining business for or with, or directing business to, any person. A "foreign official" is any person acting in an official capacity on behalf of any foreign government, agency, department, or regulatory authority or any instrumentality. Also included under the definition of "foreign official" are foreign political parties, officials thereof and candidates for foreign political office or representatives thereof. The FCPA also sets forth the accounting standards applicable to the Company s books and records if subject to SEC review. SEC Rule 13b2-1 prohibits direct and indirect falsification of books and records. Rule 13b2-2 prohibits directly or indirectly making a materially false statement or omitting a material fact. The FCPA does not prohibit certain payments and gifts made to foreign government employees whose duties are essentially ministerial or clerical (a "facilitating payment"), so long as the making of such gifts or payments is legal under the laws of the foreign country. It is often difficult to determine the legality of such payments or gifts under local law at a given location, even when such payments or gifts are sanctioned by local authorities and are consistent with local custom.

2 The Law Department, when contacted by the Manager or local Controller of any foreign Company office, will seek an opinion from local counsel as to the legality of such payment or gift under local laws. Facilitating payments or gifts may be made only if: A. The assistance requested and for which the payment or gift is made is clearly an action which the person receiving the payment is legally required to provide, and the payment is only to facilitate such action; B. Such payment is legal and customary in the foreign country in question; C. No reasonable alternative to making the payment exists; D. The duties of the person receiving the payment are essentially ministerial or clerical; and E. The payment has been approved in advance by the local Company Manager, the Chief Financial Officer, and the Law Department. Any approval will be given only after it has been determined that such payment is consistent with the criteria set forth above and with all other applicable laws. In any event, every effort should be made to eliminate or minimize such payments. Mere non-participation directly in illegal payments will not suffice. Illegal payments may not be made indirectly by any agent acting for the Company. Therefore, all law firms, advertising agencies, consultants, sales agents and others representing the Company must be advised of the FCPA and of the Company s intent to comply with this law. If unusual or unexplained charges are made for services performed by such representatives, the local Manager and Controller, in consultation with the Law Department, should satisfy themselves that such fees are not being used for improper purposes violative of the FCPA. No fictitious invoices or documents shall be involved in the transaction. Under the accounting standards of the FCPA, all transactions, including a facilitating payment or gift, must be properly recorded in all the accounts of the Company. Recording such payments or gifts in any way which would conceal their true nature is also a violation of FCPA accounting standards. A company which violates the anti-bribery provisions of the FCPA may, upon conviction, be fined up to $2,000,000 per violation. An employee or agent of the company convicted of a violation of the FCPA may be fined up to $100,000 or imprisoned for not more than five (5) years, or both. In addition to criminal sanctions, the FCPA allows the Attorney General to initiate a civil action in a United States District Court seeking an injunction against any act or practice which constitutes a violation of the FCPA. COMMUNICATION TO AFFECTED EMPLOYEES

3 The requirements of and the absolute need for compliance with the provisions of the FCPA have been communicated to all officers of Tenneco and its subsidiaries. These individuals have in turn communicated these requirements and the need for compliance to each individual in the subsidiary who is in a position to be confronted with issues under the FCPA. The need for compliance under the FCPA is also communicated via the various audits which will be conducted at any foreign subsidiaries. It is the responsibility of the managers of the business unit with foreign dealings to ensure that illegal payments, kickbacks or gifts described in this policy are not made, and that if legal facilitating payments or gifts, as described above, are being considered, the Law Department and relevant management are contacted for advice on the legality and proper method for recording such payment prior to making of the payment or gift. The Chief Financial Officer is responsible for ensuring that all foreign subsidiaries comply with the FCPA, and that these transactions, like all other transactions, are properly recorded in the books of the Company. AUDITING COMPLIANCE Attached as Exhibit A is an outline of the issues reviewed on a periodic basis by the Internal Audit Department with the management of any foreign subsidiary; those interviewed include the local Manager, the financial officer and the Marketing Director. Each of these individuals must answer all of the questions set forth in this outline, which are essentially aimed at assuring compliance with the accounting requirements of the FCPA. The Law Department also conducts "legal audits" on a periodic basis (not to exceed three years) at the office of any foreign subsidiary. The requirements of the FCPA are reviewed with local management at that time, and each of the questions on the legal outline, attached as Exhibit B, which are essentially aimed at assuring compliance with the anti-bribery requirements of the FCPA, must be answered by key managers. Accounting and tax issues are reviewed annually with the Chief Financial Officer and the Tax Department and the financial officer of any foreign subsidiary must confirm, on a quarterly basis, compliance with the FCPA. FOREIGN CORRUPT PRACTICES ACT ACCOUNTING AND INTERNAL CONTROL REVIEW Is there a formal program in place to periodically require a physical inventory of fixed assets to be taken with a subsequent comparison to fixed property records? Is there a written Redelegation of Authority in place in the subsidiary? If so, is it someone s specific responsibility to keep it up to date?

4 How is the accounts payable function controlled in order to ensure that requests for payments are approved by the proper individual? Have all or parts of the Finance Policy Manual been translated from English to ensure compliance locally? Has the Code of Conduct been translated from English to ensure compliance locally? Are competitive bidding guidelines followed in all areas of the business? Is the financial function staffed adequately enough (both quality and quantity) to ensure that the required internal accounting controls are being followed? Is there a local accounting policy and/or procedure manual in existence? Do you feel there is enough direction to understand what is and what is not allowable under the provisions of the FCPA? Generally, describe any areas where internal control improvements should be made and explain what plans are in place to make the necessary improvements. Have there been (or are there) any instances where payments to suppliers, consultants, etc., were made outside the supplier s home country within the past year? Are you and your staff familiar with and follow all the provisions of the Finance Policy Manual? 1. GENERAL EXHIBIT A A) Do accounting books, records and systems throughout the Company accurately and fairly reflect the underlying transactions? B) Is the level of detail maintained consistent with the objective to ensure that financial reports are complete, fair and accurate? C) Do accounting systems provide reasonable assurance that: 1) Transactions are executed in accordance with management s general or specific approval;

5 2) Financial statements can be prepared in conformity with generally accepted accounting principles; and, 3) Access to Company assets is permitted only in accordance with management s general or specific authorization. D) Are comparisons made periodically to ensure that recorded assets are supported by existing assets and that appropriate action is taken with respect to any differences? 2. FINANCIAL REPORTING A) Are there adequate numbers of accounting policy and procedure manuals which are distributed to appropriate personnel? B) Are the written policies and procedures for closing the accounts of each reporting period adequate? C) Are journal entries reviewed, approved and supported by adequate written descriptions or documentation? D) Are procedures adequate to ensure the inclusion in financial reports of all required information? E) Are financial reports reviewed and approved at appropriate levels of management before release? F) Are your financial reports in substantial compliance with the policies and procedures included in the Finance Policy and Procedure Manual? 3. ELECTRONIC DATA PROCESSING A) Do written procedures exist within the data processing control function? Do these procedures address data security, data access and are the controls comparable to your manual systems? B) Are there adequate written procedures to test and implement new systems and modifications to existing application systems? 4. REVENUES & RECEIVABLES A) Are written procedures adequate to ensure that all services are billed at authorized prices and that adjustments for allowances and discounts have been authorized? B) Do sales invoices and credit memorandum procedures provide adequate assurance that each is recorded in the customer, receivables control and sales accounts?

6 C) Are trial balances of individual customer accounts prepared and reconciled monthly with the general ledger control? D) Are procedures existing to record services in the period in which the service is rendered? 5. COSTS AND INVENTORIES A) Are physical safeguards over property inventories adequate to prevent misappropriation? B) Are written cost systems established which adequately ensure that direct and indirect costs are properly accumulated, classified and distributed to the appropriate private and government contracts? 6. CAPITAL ASSETS A) Are capital assets accurately recorded in the detail records? B) Are capital assets adequately safeguarded? C) Are individuals authorized to initiate capital asset transactions clearly identified in writing and are the limits of their authority clearly defined? D) Are written procedures adequate for authorizing, approving and documenting dispositions of capital assets? E) Are adequate project cost records maintained for capital expenditure and repair projects? F) Are procedures adequate to ensure that purchased materials or services for capital and repair expenditures are either delivered or performed? G) Are detailed property records periodically compared with existing assets? H) Are written procedures and rules in effect which adequately and consistently distinguish between capital and expense items? 7. PURCHASES AND PAYABLES A) Are adequate written policies and procedures regarding competitive bidding in effect? B) Are purchase order issuance and approval procedures written and considered adequate? C) Are procedures adequate to ensure that goods received are accurately counted?

7 D) Are written procedures regarding purchases and payments of goods and services adequate to ensure that they are approved by authorized individuals? 8. EMPLOYEE COMPENSATION AND BENEFITS A) Are changes in employment (additions and terminations), in salary wage rates, and in amounts of payroll deductions properly authorized, approved and documented? B) Are there adequate written user controls over payroll preparation? C) Are documents supporting employee benefit payments adequately reviewed and approved before disbursements are made? D) Are written procedures adequate to ensure that unpaid employee compensation and fringe benefit costs are properly recorded at period end? 9. FINANCIAL MANAGEMENT A) Is there adequate and competent staffing within the function to ensure that existing internal control procedures are followed? B) Is coordination and communication among financial management and other Company functions adequate? C) Are written procedures adequate to ensure that transactions are initialed by authorized individuals and approved by appropriate levels of management? D) Are written procedures adequate to ensure that negotiable instruments and permanent records are subject to effective controls and physical safeguards? E) Are written procedures adequate to ensure that transactions are recorded in detail records and appropriate reports issued? F) Are procedures adequate to ensure that transactions are properly accumulated, classified and summarized in the accounts? 1. EXHIBIT B A) Are you aware of any cash or non-cash gifts or payments to foreign government officials to obtain business, required permits, favorable price control, tax treatment, or other favorable governmental rulings? B) Have payments or gifts of any kind ever been made to customs officials, government inspectors, clerks, regulators, labor leaders, etc.?

8 2. A) Are you aware of any unreasonably large commissions or fee payments to sales agents, distributors, consultants, attorneys, etc.? B) Do you regularly review services rendered/comparable fees of others for the same service in each of these service areas? C) Do you have any reason to believe that any amounts paid to agents, distributors or others are passed on to government officials or anyone other than those persons performing the service? D) Has the Company inquired as to the reputation of all agents with whom it is dealing? E) With what companies are there agency agreements and what is the nature of the services performed by the agents? 3. F) Are all agents aware of the necessity of complying with the Foreign Corrupt Practices Act and Tenneco s Code of Conduct? To the best of your knowledge, are they all in compliance? A) Has the Company had requests to employ relatives or friends of any government officials? B) Does the Company employ any relatives or friends of government officials? 4. Does any employee engage in outside activities or employment that could conflict with their obligations to the Company (e.g., acting as a consultant to or receiving money from a competitor)? 5. A) Are payments made to police or military for "security?" B) Are contributions made to any special government or other funds? 6. Are you aware of any "accommodation" requests for payments to agents, customers, etc. (e.g. payment made in a country other than the agent s or customer s residence)? 7. A) Does the Company make any political contributions? B) Are any management personnel politically active?

9 C) Are employees reimbursed for any expenses related to political involvement or entertainment of government officials? D) How is this monitored? 8. A) Are you aware of any off-book accounts ever being utilized by the Company? If there are any, what is their purpose? B) Have any vehicles, such as improper invoicing, ever been used to overstate or understate revenue, assets or the like during any financial reporting period? 9. Have any contributions to charities been made at the request of government officials? CODE OF ETHICS 1. Are Company assets such as employees, materials or equipment used by any Company employee for personal purposes? 2. Does any employee have a personal or family interest, either directly or indirectly, in an enterprise that does business or competes with Tenneco or its subsidiaries? 3. Are you aware of any bribes or kickbacks made by the Company to customers, suppliers or others? 4. Have any employees of the Company received any kickbacks from customers, suppliers or others? 5. Have any employees received gifts, money or other personal benefits from customers, suppliers or others? 6. Does the Company employ any relatives of customers or suppliers? 7. Are there any other requests which have been made of you by customers, suppliers, government officials or others, whether or not you complied, which you felt were of questionable ethical conduct?