EXHIBIT 1.3
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MARSULEX INC.
CODE OF CONDUCT
PURPOSE
Marsulex Inc., including its subsidiaries and affiliated companies (the
"Company"), is committed to conducting its business consistent with the
highest ethical and legal standards. This Code of Conduct reinforces its
commitment to these standards and provides each board of director, executive,
senior officer, employee and consultant of the Company (the "Employees") with
guidance and perspective in understanding the Company's business ethics.
It is designed to guide and help identify activities and behaviors that are
appropriate in conducting business and those that are not. No code of conduct
can hope to spell out the appropriate moral conduct and ethical behavior for
every situation that an Employee may confront. In the final analysis, each
Employee must rely on his or her own good judgment.
Whenever an Employee is faced with a difficult decision to make, he or she
must seek counsel from colleagues, supervisors and, most importantly, their
own conscience and common sense. If specific interpretation or application of
any guidelines or other content of this Code or any of the related policies
and procedures is needed, it should be requested from the Chief Executive
Officer ("CEO") or the Chief Financial Officer ("CFO").
THE EMPLOYEES' RESPONSIBILITIES
Obeying the law, both in letter and in spirit, is the foundation on which the
Company's ethical standards are built. All Employees must respect and obey the
laws of the countries in which the Company operates. Although not all
Employees are expected to know the details of these laws, it is important to
know enough to determine when to seek advice from supervisors, managers or
other appropriate personnel.
The Company's various policies and procedures provide further information on
what is considered to be acceptable behavior, while also promoting compliance
with laws, rules and regulations, including insider-trading laws. In addition,
ethical conduct values are incorporated into the Company's core values that
are posted throughout the organization.
1. CONFLICTS OF INTEREST
All Employees of the Company have a responsibility to avoid situations and
relationships that involve actual or potential conflicts of interest.
Generally, a conflict of interest arises whenever an Employee's personal
interests diverge from his or her responsibilities to the Company or from the
Company's best interests.
These situations, and others like them, where loyalties to the Company could
be compromised, must be avoided. An Employees who is involved in a potential
conflict of interest has a responsibility to obtain written approval from his
or her supervisor who must be at least a Vice President. Details of the policy
are included in the attached Appendix A.
2. CONFIDENTIALITY
All Employees of the Company regardless of country of residence treat
confidential information in a manner consistent and in accordance with
Canadian and applicable U.S. securities laws. Guidelines relating to
confidentiality are outlined in the policy, a copy of which is attached
(Appendix B).
3. INSIDER TRADING
The Company has policies to ensure that Employees of the Company regardless of
country of residence comply with the applicable Canadian and U.S. securities
laws relating to insider trading.
In addition, guidance on questions about specific transactions should be
obtained from the CEO or the CFO in advance of the transaction. Additional
information can be obtained from the trading policy, a copy of which is
attached in Appendix B.
4. PERSONAL HARASSMENT
Conduct involving the harassment, sexual or otherwise, of any Employee of the
Company, its suppliers or customers is unacceptable and will not be tolerated.
Any person who believes they have been personally harassed should report the
incident and circumstances to their immediate manager or to the Human Resource
department or any senior manager who will arrange for it to be investigated
impartially and confidentially. Steps for reporting such incidents are
included in the employee handbook.
5. POLITICAL CONTRIBUTIONS
All political contributions by the Company must be lawful and approved by the
CEO or the CFO.
6. ANTITRUST
The Company is committed to compliance with anti-trust laws throughout the
world in all of its activities. The Company's policy ensures that every
Employee is responsible for compliance with anti-trust laws and promptly
reports any possible violations of those laws to senior management. See
Appendix C for further details of the policy.
7. ETHICAL BUSINESS PRACTICES
The Company uses only ethical practices in selling and purchasing goods and
services and representing the Company to government authorities. All decisions
regarding the purchasing of materials, supplies and services must be made on
the basis of competitive price, quality and performance in a way that
preserves the Company's integrity.
The Company expects all of its Employees to obey the laws of Canada, the
United States and the other jurisdictions in which it conducts business, both
in letter and spirit.
Giving or accepting anything of value is inappropriate if it could be
reasonably interpreted as an effort to influence a business relationship or
decision. The difference between a gift and a bribe is a question of intent.
It is impermissible to accept, request, or receive any form of kickback or
bribe. A bribe or a kickback includes any item or favour provided for the
purpose of improperly obtaining favourable treatment or seeking a competitive
advantage. Such efforts should never be used to accomplish indirectly what the
Company could not properly or legally do directly.
In certain situations or on certain occasions, small gifts of nominal value
may be presented to customers or potential customers, such as specialty
advertising items bearing the corporate logo, tickets to local sports, civic
or cultural events and/or restaurant meals or refreshments.
Standards governing the acceptance of gifts from suppliers or their agents
mirror those relating to the giving of gifts to our customers and/or potential
customers, in that acceptance of a significant gift could be construed as
improperly influencing the selection of vendor or the awarding of a contract.
Gifts of a nominal value may be accepted on an infrequent or occasional basis,
such as during the holiday season,
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as a reasonable business courtesy. Routine entertainment by suppliers that is
business related - such as business meals, sports outings or cultural events -
is acceptable.
Employees who do business in foreign countries often become aware of customs
involving the exchange of gifts or the paying of certain fees. It is the
Company's policy to comply with all applicable laws on these matters,
particularly the U.S. Foreign Corrupt Practices Act ("FCPA"). This law
restricts payments to officials of foreign government, political parties, and
candidates for office.
The Company expects all its Employees, when engaging independent third parties
to represent the Company, to exercise due diligence in selecting these
representatives by ensuring that only third parties that engage in ethical
practices are engaged, keeping in mind that the Company may, in some
circumstances, be held responsible for the actions of such persons.
Ultimately, each Employee must exercise good business judgment in deciding
which situations are unacceptable. The Employee should watch for "red flags"
which might indicate questionable business practices or a violation of this
policy and if there is ever any doubt, the Employee should consult with his or
her supervisor, the CEO, or the CFO.
8. INTERNATIONAL OPERATIONS
All Company Employees worldwide must comply with Company's policies applicable
to international business transactions and with the legal requirements and
ethical standards of each country in which they conduct Company business, as
well as with all applicable laws in Canada, the U.S., and other countries.
The FCPA applies to business transactions both inside the U.S. and in other
countries. Its requirements relate to accurate and complete financial books
and records, transactions with foreign government officials and restrictions
on the use of funds for unlawful or improper purposes. Violation of the FCPA
can bring severe penalties, and it is mandatory that all Employees living or
working in foreign countries become familiar with the FCPA and its
requirements.
9. RECORD-KEEPING; FINANCIAL INTEGRITY
The Company requires honest and accurate recording and reporting of
information in order to make responsible business decisions. For example, only
the true and actual number of hours worked should be reported.
The Company has policies and procedures that ensure business expenses are
recorded accurately and the expenses are legitimate.
All of the Company's books, records, accounts and financial statements must be
maintained in reasonable detail, must accurately reflect the Company's
transactions and must conform to both applicable legal requirements and to the
Company's system of internal controls.
Unrecorded or "off the books" funds or assets should not be maintained.
Business records and communications often become public, and all Employees
should avoid exaggeration, derogatory remarks, guesswork, or inappropriate
characterizations of people and companies that can be misunderstood. This
applies equally to e-mail, internal memos, and formal reports. Records should
always be retained or destroyed according to the Company's record retention
policies. In accordance with those policies, in the event of litigation or
governmental investigation please consult the CEO or the CFO.
Furthermore, when litigation or an investigation is pending, relevant records
must not be destroyed. Destruction or falsification of any potentially
relevant document may lead to prosecution for obstruction of justice or making
false statements. Therefore, if any doubts exist about the legality of
destroying any
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document, the Employee is required to consult with his or her
supervisor, the Company's document retention policy or the CEO or the CFO.
10. WAIVERS OF THE CODE OF CONDUCT
Any waiver of this Code for executives, senior officers or directors may be
made only by the Board or a Board committee designated by the board and will
be promptly disclosed as required by law or stock exchange regulations.
11. REPORTING ANY ILLEGAL OR UNETHICAL BEHAVIOR ("WHISTLEBLOWING")
Employees are encouraged to talk to supervisors, managers or other appropriate
personnel about observed or suspected illegal or unethical behavior and when
in doubt about the best course of action in a particular situation.
If for any reason the Employee is uncomfortable with approaching the Company's
management, they are encouraged to call the toll free "Values Line" at
1-888-475-8376, where the Employee can report the suspected violation
anonymously.
It is the policy of the Company not to allow retaliation for reports of
misconduct by others made in good faith by Employees. Employees are expected
to cooperate in investigations of misconduct.
12. COMPLIANCE PROCEDURES
All Employees must work to ensure prompt and consistent action against
violations of this Code. However, in some situations it is difficult to know
right from wrong. Since it is difficult to anticipate every situation that
will arise, it is important that the following steps be kept in mind:
o Make sure all the facts have been obtained, in order to reach the right
solutions.
o The Employee should ask himself or herself: What specifically is he or
she being asked to do? Does it seem unethical or improper? This will
enable the Employee to focus on the specific question he or she is faced
with, and the alternatives that are available. Use judgment and common
sense; if something seems unethical or improper, it probably is.
o Clarify his or her responsibility and role. In most situations, there is
shared responsibility. Are his or her colleagues informed? It may help to
get others involved and discuss the problem.
o Discuss the problem with his or her supervisor. This is the basic
guidance for all situations. In many cases, the Employee's supervisor
will be more knowledgeable about the question and will appreciate being
included into the decision-making process. Remember that it is the
Employee's supervisor's responsibility to help solve problems.
o Seek help from Company resources. In the rare case where it may not be
appropriate to discuss an issue with his or her supervisor, or where the
Employee does not feel comfortable approaching his or her supervisor with
the question, then discuss it locally with a senior manager, the Risk
Manager, Human Resources manager, the CEO, the Chief Operating Officer,
or the CFO. If for any reason the circumstances surrounding the incident
leave the Employee feeling uncomfortable with approaching the Company's
management, the incident can be reported directly to the Administrator
through the toll free "Values Line" as described in section 11 and
section 13. The Employee may report ethical violations in confidence and
without fear of retaliation. If a specific situation requires that the
Employee's identity be kept secret, the individual's anonymity will be
protected. The Company does not permit retaliation of any kind against
Employees for good faith reports of ethical violations.
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o Always ask first, act later. If the Employee is unsure of what to do in
any situation, seek guidance before you act.
13. ADMINISTRATION OF THIS CODE OF CONDUCT
Responsibility for Administration
The Board of Directors shall have overall responsibility for the Code of
Conduct, which shall include the responsibility to review the Code of Conduct
annually, to approve amendments recommended by the designated administrator,
and to grant waivers of this Code of Conduct to the Executive Officers and
Directors.
With regard to Executive Officers and Directors, the Board of Directors may
grant a specific, limited waiver of any provision of the Code of Conduct if
the Board of Directors determines, based on information that the Board deems
credible and persuasive, that such a limited waiver is appropriate under the
specific circumstances (and each factual situation will be a separate case).
Waivers to any provision of this Code of Conduct shall be disclosed in a
manner required by applicable law.
The Board of Directors delegates the responsibility for interpreting and
administering this Code of Conduct to the Chairman of the Audit Committee (the
"Administrator"), who in discharging his or her responsibility, may delegate
some of his or her responsibilities to others within the organization and may
engage such agents and advisors, as shall be deemed necessary or desirable.
The Administrator shall periodically report to the Board of Directors the
effectiveness of this Code of Conduct. The Administrator shall, in light of
the experience of the Company, review this Code of Conduct and shall recommend
necessary amendments in order to ensure that (i) this Code of Conduct conforms
to applicable law, (ii) this Code of Conduct meets or exceeds industry
standards, and (iii) any weaknesses in this Code of Conduct or any other
Policy of the Company which are revealed through monitoring, auditing, and
reporting systems are eliminated or corrected.
Reporting Systems
When an Employee observes a suspected violation of this Code of Conduct, he or
she shall be responsible for promptly reporting the matter to a supervisor who
is not involved in the violation. The supervisor is then responsible for
reporting the incident to the Administrator who will in turn initiate an
investigation of the matter. In the event the Employee reported the suspected
violation to the anonymous toll free "Values Line", a report will be provided
to the Administrator who will investigate the incident.
Investigation of Violations
If the Administrator received information regarding an alleged violation of
this Code of Conduct, the Administrator shall:
o Evaluate such information as to gravity and credibility;
o If necessary, initiate an informal inquiry or a formal investigation with
respect thereto;
o Ensure a written report of the results of such inquiry or investigation,
including recommendations as to the disposition of such matter, is
prepared;
o If appropriate, make the results of such inquiry or investigation
available to the public (including disciplinary action); and
o If appropriate, recommend changes to this Code of Conduct that the
Administrator deems necessary or desirable to prevent similar violations
of this Code of Conduct.
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Disciplinary Measures
The Administrator shall enforce this Code of Conduct through appropriate
disciplinary actions. The Administrator shall determine whether violations of
this Code of Conduct have occurred and, if so, shall determine the
disciplinary actions to be taken against any individual who has violated this
Code of Conduct.
The disciplinary actions available to the Administrator include counseling,
oral or written reprimands, warnings, probations or suspensions (with or
without pay), demotions, reductions in salary, terminations of employment, and
restitution.
The jurisdiction of the Administrator shall include, in addition to the
individual who violated this Code of Conduct, any other Employee involved in
the wrongdoing such as (i) persons who fail to use reasonable care to detect a
violation and (ii) persons who were requested to divulge or possess
information about a suspected violation of this Code of Conduct, but withheld
material information regarding a suspected violation.
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MARSULEX INC.
CODE OF CONDUCT
Appendix A
CONFLICT OF INTEREST POLICY
All directors, officers, Employees and consultants of the Company have a
responsibility to avoid situations and relationships that involve actual or
potential conflicts of interest. Generally, a conflict of interest arises
whenever an Employee's personal interests diverge from his or her
responsibilities to the Company or from the Company's best interests. Put
another way, a conflict of interest is created whenever an activity,
association or relationship of the individual might impair his or her
independent exercise of judgment in the Company's best interest.
Examples of situations that could be perceived as conflicts of interest and
should be avoided include:
o Conducting Company business with a firm owned, partially owned, or
controlled by an Employee or an Employee's relatives or friends.
o Ownership of a financial interest in the Company's vendors, customers or
competitors. Ownership of less than three percent of the stock of a
publicly traded company that competes or does business with the Company
is permissible.
o Working as an Employee or a consultant for a competitor, regulatory
governmental entity, customer or supplier of the Company, or doing any
work for a third party that may adversely affect your performance or
judgment on the job or diminish your ability to devote the necessary time
and attention to your job responsibilities with the Company.
o Using Company property, materials, supplies, funds or other resources for
personal purposes, or appropriating or diverting to others any business
opportunity or idea in which the Company might have an interest.
These situations, and others like them, where loyalties to the Company could
be compromised, must be avoided. Employees who are involved in a potential
conflict of interest have a responsibility to obtain written approval from
their supervisor who must be at least a Vice President.
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MARSULEX INC.
CODE OF CONDUCT AND ETHICS
Appendix B
CONFIDENTIALITY AND TRADING POLICY
PART I
CONFIDENTIALITY
The purpose of Part I of this Policy is to ensure that all employees and
directors of Marsulex Inc., including all subsidiaries and divisions of
Marsulex, regardless of country of residence, treat confidential information
in a consistent manner and in accordance with Canadian and applicable U.S.
securities laws.
Confidential Information
All information respecting to Marsulex is considered confidential information
if its knowledge would reasonably be expected to result in a significant
change in the market price or value of Marsulex securities, and such
information has not been publicly disclosed. Throughout this Policy, this
information is referred to as "Confidential Information".
Confidential Information includes information concerning the business,
operations or capital of Marsulex. Confidential Information may also include
trade information in respect of Marsulex productions, to the extent that such
information has not been generally disclosed.
Safeguarding Confidentiality
Marsulex personnel may not discuss Confidential Information with any other
persons (whether or not Marsulex personnel), except in the necessary course of
business. In addition, information disclosed by a customer, supplier or
business associate to Marsulex personnel, and identified as private or
confidential, must be protected from disclosure to the same extent, as would
Confidential Information. To protect Confidential Information from disclosure,
Marsulex personnel should not:
(a) discuss Confidential Information in public places where Confidential
Information may be overheard (e.g., elevators, restaurants, airplanes,
taxicabs);
(b) carry, read or discard Confidential Information in an exposed manner in
public places;
(c) discuss Confidential Information with personal friends or relatives; and
(d) participate in discussions with other persons respecting investments in
Marsulex.
When so required by a supervisor, Marsulex personnel must take such additional
steps as may be necessary to protect Confidential Information from disclosure,
including keeping filing cabinets locked, referring to specified matters only
by a code name and limiting access to the word processing system.
All inquiries from the media, analysts and like persons should be referred to
the Chief Financial Officer (or such other person as may be designated from
time to time by the President) for response by designated spokespersons.
Sanctions
Failure to comply with the terms of Part I of this Policy will result in
disciplinary action, possibly including termination of employment. In
addition, certain regulatory sanctions including fines, imprisonment and civil
actions may be imposed on individuals improperly disseminating Confidential
Information.
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PART II
TRADING BY RESTRICTED PERSONS AND EMPLOYEES
The purpose of Part II of this Policy is to ensure that all employees and
directors of Marsulex, including all subsidiaries and divisions of Marsulex,
regardless of country of residence, comply with Canadian and applicable U.S.
securities laws.
Prohibition on Trading by Employees Generally
Marsulex personnel may not, if that individual possesses Confidential
Information, directly or indirectly (e.g., via private holding company,
registered retirement savings plans):
(a) buy or sell Marsulex securities;
(b) buy or sell securities whose price or value may reasonable be expected to
be affected by changes in price of Marsulex securities;
(c) grant or exercise Marsulex stock options, phantom stock plans or similar
employee compensation mechanisms; or
(d) buy or sell securities of another company in which Marsulex proposes to
invest or where the individual, in the course of employment with
Marsulex, becomes aware of undisclosed material information concerning
that other company.
In addition, Marsulex personnel are prohibited from engaging in any other
action to take advantage of, or pass on to others, such Confidential
Information or undisclosed material information respecting another company,
including buying or selling, or recommending the buying or selling of, any
assets of that company, in reliance on such Confidential Information or
undisclosed material information.
Marsulex personnel who are unsure whether they may trade in a given
circumstance must contact the Chief Financial Officer for specific guidance.
Marsulex personnel are encouraged to consult with the Chief Financial Officer
prior to any trading in securities of Marsulex.
Prohibition on Trading by Restricted Persons
Restricted persons include all directors and officers of Marsulex or any
subsidiary or division of Marsulex. In addition, because of the extent to
which an individual may be in possession of Confidential Information, Marsulex
reserves the right to designate any Employee as a Restricted Person. To assist
in ensuring trading in Marsulex securities does not occur by Restricted
Persons when Confidential Information may exist, trading of Marsulex
securities by Restricted Persons is prohibited from the end of each fiscal
quarter until two business days following the date that the financial results
in respect of that fiscal quarter have been publicly disseminated, as
stipulated in the following paragraphs.
The periods within which trading is prohibited are:
1. March 31 until two business days following the release of the first quarter
results;
2. June 30 until two business days following the release of the
second quarter results;
3. September 30 until two business days following the
release of the third quarter results; and
4. December 31 until two business days following the release of the fourth
quarter results.
Trading by Restricted Persons is also prohibited for two business days
following the public release of any Confidential Information.
Restricted Persons, their spouses and any relatives living with them are also
prohibited from:
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(a) purchasing or selling publicly traded options of Marsulex; and
(b) selling Marsulex securities that the individual does not own (short
selling).
If Marsulex becomes aware of a material undisclosed transaction, all
Restricted Persons who have pre-cleared transactions that have not been
completed will be asked to withdraw their trading instructions.
Regulatory Requirements - Reporting
To comply with Canadian securities laws applicable to certain Restricted
Persons, all Restricted Persons who are directors or officers of Marsulex
("Insiders") must file an "Insider Report" in the form included as Attachment
A (a completed example is provided in Attachment B), within 10 days following:
(a) the day the individual first becomes an Insider (if on that day the
individual does not own or control Marsulex securities no Insider Report
need be filed); and
(b) the day on which the Insider purchases or sells Marsulex securities (this
is the date of agreement to purchase or sell, not the settlement date of
the transaction).
Each Insider is required to file the Insider Report with each of the Canadian
provincial securities regulators except the Nova Scotia Securities Commission.
Instructions regarding completion are included on the back of the form.
All Insiders are responsible for filing their own Insider Reports. Two copies
of the Insider Report, one of which is to be manually signed, must be filed in
all jurisdictions.
At the same time as the Insider Report is filed with the regulators, a copy of
the Insider Report must be mailed to Marsulex to the attention of the Chief
Financial Officer.
Additional copies of blank Insider Reports may be obtained from the Chief
Financial Officer. Restricted Persons (whether or not they are Insiders) are
required to report to the Chief Financial Officer annually (by the end of
January each year) with respect to all trades in the preceding 12 months and
to certify compliance during the period with the terms of this Policy.
Sanctions
Failure to comply with Part II of this Policy will result in disciplinary
action, possibly including termination of employment.
Canadian securities laws provide that a breach of the general trading
prohibition contained in Part II of this Policy may result in a fine of up to
the greater of $1 million and three times the profit obtained by the reason of
the contravention, and imprisonment for up to two years.
Marsulex personnel may also be found civilly liable if a spouse, friend or
relative profited from the trading of Marsulex securities at a time when in
possession of Confidential Information provided by that individual.
Penalties may also be levied against an Insider for not complying with the
regulatory reporting requirement.
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MARSULEX INC.
CODE OF CONDUCT
Appendix C
ANTI-TRUST COMPLIANCE POLICY
Marsulex and its subsidiaries (the "Company") are committed to compliance with
anti-trust laws throughout the world in all of its activities. Every director,
officer, employee or consultant (the "Employees") of Marsulex is responsible
for compliance with anti-trust laws as well as for promptly reporting any
possible violations of those laws to senior management.
The basic anti-trust prohibitions of the laws of all countries are simple and
straightforward:
o no price fixing by competitors;
o no division of customers or sales areas by competitors.
Any discussions with competitors or agreements or understandings with respect
to prices, terms or conditions of sale, costs, profits or profit margins,
product or service offerings could be considered to be price fixing.
Similarly, discussions regarding production or sales volume, production
capacity, market share, decisions to quote or not to quote, customer or
supplier classification or selection of sales territories and distribution
methods all could be considered to be a division of customers or sales areas.
Agreements with Competitors
The following agreements, arrangements or understandings with competitors,
whether oral or written, should always be avoided:
o Agreements to fix prices or boycott specified supplies or customers.
o Agreements to allocate products, territories or markets.
o Agreements to exchange competitively sensitive information, especially
prices.
o Agreements that limit the production or sale of product.
Contact with competitors is sensitive and risky, since courts can infer an
agreement or collusion from such contacts when they are followed by common
action or behavior. In all contacts with competitors, Employees must avoid
discussing prices, terms and conditions of sale, costs, inventories,
competition, marketing plans or studies, production plans and capabilities,
and any other proprietary or confidential information.
Employees must always consult with the Company when planning to contact a
competitor. If any competitor initiates a discussion involving the subjects
above, an Employee should immediately excuse himself/herself from the
conversion and immediately report the matter to the Company.
Company Employees should normally avoid all contacts with competitors if they
have authority over the pricing, terms or conditions of sale of the Company
products.
Agreements with Customers
The following kinds of agreements may be unlawful, depending on the facts and
circumstances involved. Employees may not enter into these agreements without
the approval of the Company.
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o Restricting the customer's choice in using or reselling products or
services of the Company.
o Exclusive-dealing agreements requiring customers to purchase all their
requirements for a certain product of a competitor.
o Agreements requiring customers to buy one Company product as a condition
of obtaining another Company product.
o Reciprocity arrangements involving the Company using its purchasing power
to require a Company supplier to purchase a Company product (i.e.,
telling a supplier that your decision to purchase its goods or services
is conditioned on the supplier's agreement to purchase the Company's
products or services).
o Agreements involving any acquisition, divestiture or joint venture
agreement.
o Agreements involving any patent, copyright or proprietary "know how"
licensing arrangement which restricts the freedom of the licensor or the
licensee.
There need not be an intention to violate the law. Trade association meetings
as well as the informal meetings before and after are conducive to the sharing
of information that leads to serious allegations of price fixing. Even casual
remarks about pricing can be troublesome.
All Employees are responsible for adherence to this policy and must obtain
advice from their senior management or the CEO or the CFO before entering into
any agreement or understanding which may involve anti-trust laws. Violation of
this policy can result in immediate dismissal.
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