practices that require more of you than is
required by the Code or if local law requires
more, then you must follow the stricter policy,
practice or law. Think of this Code as a
baseline, or a minimum requirement, which must
always be followed. The only time you can go
below the baseline is if a law absolutely
requires you to do so or if the Company’s Board
of Directors or the Governance and Nominating
Committee of the Board has approved the
exception in writing.
No set of policy
guidelines can anticipate all situations that
the Company’s employees or directors may
encounter. When faced with a business decision
with ethical implications, you as an employee or
director should ask yourself the following
questions:
•
Would my actions inspire trust?
•
Are my actions legal? If legal, are they
also ethical? Are my actions fair and honest in
every respect?
•
Can I defend this action with a clear
conscience before my supervisor, fellow
employees and the general public?
•
Would my supervisor act this way? Would
it be helpful to ask my supervisor about this
matter before I act?
•
Would I want my actions reported in the
newspaper?
When in doubt, you are
encouraged to seek guidance and express any
concerns you may have regarding this Code.
Questions regarding these rules and policies
should be directed, and concerns or possible
violations of these rules and policies should be
promptly reported to the Chief Administrative
Officer (CAO) or the Chief Financial Officer
(CFO).
Violations of the rules
and policies set forth in this Code will result
in corrective action, which may include
termination of employment. See Section
XIX.
Information on the
Company’s activities, strategies and business
data is proprietary. Confidential information
includes all non-public information that might
be of use to the Company’s competitors, or
harmful to the Company or the Company’s
customers, if disclosed. We believe that our
confidential proprietary information and data
are important corporate assets in the operation
of our business and prohibit the use or
disclosure of this information, except when
disclosure is authorized or legally mandated.
You must be careful not to disclose confidential
information to unauthorized persons, either
inside or outside the Company, and you must
exercise care to protect the confidentiality of
information received from any other party.
To protect this
information, it is Company policy that:
•
Confidential information of the Company
should be disclosed within the Company only on a
need-to-know basis.
•
Confidential information of the Company
should be disclosed outside the Company only
when required by law or when necessary to
further the Company’s business activities and in
accordance with the Company’s disclosure
guidelines. Any disclosure of confidential
information outside the Company must be pursuant
to an approved Non-Disclosure Agreement.
Concerns with respect to
confidential information may arise in the
securities area as well. See the Company’s
Policy on Insider Trading and Confidentiality in
Sections III and X of this Code. If you believe
you have a legal obligation to disclose
confidential information, you should consult the
CAO or the CFO prior to doing so.
Patents,
Copyrights, Trademarks and Proprietary
Information
Protection of the
Company’s intellectual property, including its
trade secrets, pending patent information,
scientific and technical knowledge, know-how and
the experience developed in the course of the
Company’s activities, is essential to
maintaining our competitive advantage. This
information should be protected by all Company
personnel and should not be disclosed to
outsiders.
Much of the information we
develop in research, production, marketing,
sales, and finance is original in nature and its
protection is essential to our continued
success. This information should be safeguarded.
Proprietary/confidential information and trade
secrets may consist of any formula, pattern,
device or compilation of information maintained
in secrecy that is used in business, and that
gives the business an opportunity to obtain an
advantage over competitors who do not know about
it or use it. This information should be
protected by all Company employees and not
disclosed to outsiders. Its loss through
inadvertent or improper disclosure could be
harmful to the Company.
No Inadvertent
Disclosures
In becoming an employee,
you became obligated not to disclose the
Company’s proprietary confidential information,
both while you are employed and after you leave
the Company. The loyalty, integrity and sound
judgment of the Company’s employees both on and
off the job are essential to the protection of
this information.
You should be especially
mindful in the use of the telephone, cellular
telephone, fax, telex, electronic mail, and
other electronic means of storing and
transmitting information.
You should take every
practicable step to preserve the Company’s
confidential information. For example, you
should not discuss material information in
elevators, hallways, restrooms, restaurants,
airplanes, taxicabs, or any place where you can
be overheard; not read confidential documents in
public places or discard them where they can be
retrieved by others; not leave confidential
documents in unattended conference rooms; and
not leave confidential documents behind when a
meeting or conference is over. Also, you should
be cautious when conducting conversations on
speaker telephones in offices, and of the
potential for eavesdropping on conversations
conducted on cellular, car or airplane
telephones, and other unsecured means of
communication.
A conflict of interest
occurs when an individual’s private interest
interferes, or even appears to interfere, in any
way with the interests of the Company as a
whole. As a result, you as an employee or
director must avoid any action that may involve,
or may appear to involve, a conflict of interest
with the Company. If you consider
undertaking any transaction or relationship that
reasonably could be expected to give rise to an
actual or apparent conflict or disparity of
interest between you and the Company, or in your
personal or professional relationship, you must
promptly disclose this activity for review to
the CAO or the CFO. Immediate disclosure
of any potential conflict is the key to
remaining in full compliance with this Code.
Examples of
Potential Conflicts:
•
You take actions or have interests that
may make it difficult to perform your work at
the Company objectively and effectively.
•
You, or a member of your family, receive
improper personal benefits as a result of your
position in the Company.
•
You perform services for, serve as a
director, employee or consultant of, or have a
substantial interest in, any competitor of the
Company.
•
You engage in a transaction with the
Company, or work for or own a substantial
interest in any organization, doing or seeking
to do business with the Company.
•
You intend to acquire ownership of, or an
interest in, any type of property (such as real
estate, patent rights, securities or software)
in which the Company has or might reasonably be
thought to have an interest.
•
In addition, you are prohibited from
engaging in the following corporate
opportunities:
•
Taking for yourself personally
opportunities that are discovered through the
use of Company property, information or
position.
•
Using Company property,
information or position for personal gain.
•
Competing with the Company.
You owe a duty to the
Company to advance the Company’s legitimate
interests when the opportunity to do so arises.
The U.S. has laws designed
to regulate behavior that unreasonably restrains
trade or unduly interferes with the action of
the free market. Anti-competitive behavior
which is illegal under these laws can involve
price fixing, kickbacks, rebates, boycotts,
predatory pricing, stealing trade secrets,
dividing markets, allocating customers or
entering into tying arrangements. It can
also include resale price maintenance
agreements, price discrimination, joint bidding
arrangements and other agreements which may, in
some way, restrain commerce.
These laws apply to all
agreements between competitors, as well to some
agreements with suppliers and customers.
In addition to protecting
competition, there are important laws that
protect consumers by prohibiting unfair or
deceptive advertising. These laws must
always be scrupulously obeyed as well.
Contact with competitors at trade shows or trade
association meetings is unavoidable. However,
these contacts are not immune from antitrust
law. Consequently, contact with competitors
necessitated by these meetings should be as
limited as possible and kept strictly to the
subjects on the agenda for the meeting. In
addition, employee participants in trade
associations should consult with the CAO or the
CFO regarding any proposed association activity
that could have a potential effect on
competition, such as the development of product
standards or an industry code of practice.
Antitrust laws are
vigorously enforced and include criminal as well
as civil penalties. Both the potential
damages and the penalties imposed for violations
can be severe.
The Company is committed
to full compliance with valid environmental laws
and regulations at all of its facilities.
Our environmental obligations include, but are
not limited to, obeying all environmental laws,
obtaining and maintaining all environmental
permits and approvals required for the conduct
of the Company’s business, the proper handling,
storage and disposal of regulated materials and
the timely and accurate submission of required
reports to the proper government agencies.
Employees are expected to
understand and act in accordance with their
obligations under environmental laws, including
any new or modified obligations as they are
established. Employees must report
suspected violations of those laws to designated
managers. It is the obligation of
responsible managers to investigate any reported
violation and to ensure that timely and
effective remedial action is taken where
appropriate.
The Company will ensure
compliance with this Code through vigilant
self-monitoring and the continual training,
education, encouragement and, where necessary,
discipline of employees at all levels. The
Company will not tolerate the falsification of
data or the reporting of false information
regarding environmental compliance within the
company or to government agencies.
Workplace safety and
health are paramount concerns of the Company.
Employees must adhere to applicable health and
safety laws and regulations and all related
Company policies designed to ensure safe working
conditions at all times.
Employees are responsible
for working safely and are expected to
participate actively in training and in
identifying and alerting management to potential
hazards and unsafe practices. Each
employee is responsible for observing posted
warnings and regulations and for reporting any
accident or injury sustained on the job.
The Company is an equal
opportunity employer. The Company’s policy
is to select, place and promote employees on the
basis of qualification for work to be performed,
as required by applicable laws, without
discrimination in terms of race, religion, sex,
age, color, national origin, status as a
qualified individual with a disability or other
status protected by laws. The Company
insists that all employees refrain from any act
that is designed to cause or does cause unlawful
employment discrimination with respect to any
term or condition of employment.
The Company is also
committed to the goal of providing a safe,
secure, productive and healthy work environment
free from harassment of any kind. We
insist that all employees refrain from any act
that is designed to cause or does cause
harassment or intimidation of any kind,
including sexual harassment. We will not
tolerate any form of harassment or intimidation
by any employee.
It is Company policy to
fully cooperate with any appropriate government
investigation. If you learn about a possible
government investigation or inquiry, inform the
CAO or CFO immediately.
The Company prohibits any
employee, officer or director from altering,
destroying, mutilating or concealing a record,
document, or other object, or attempting to do
so, with the intent to impair the object’s
integrity or availability for use in an official
proceeding. Furthermore, the Company prohibits
any employee or director from otherwise
obstructing, influencing or impeding any
official proceeding or any attempt to do so.
In the normal course of
business, directors, officers and employees of
the Company may come into possession of
significant, nonpublic information. This kind of
information, often referred to as “material,
nonpublic” information in the securities laws,
is considered the property of the Company.
Accordingly, you may not seek to profit from it
by buying or selling securities yourself or by
passing on the information to others to enable
them to profit. This rule applies to trading in
Middleby’s own securities, but it also applies
to trading in the securities of other companies
if you learn something in the course of your
employment or relationship with Middleby that
might affect the value of the other stock. The
insider trading rules apply both to buying stock
(to make a profit based on good news) and
selling stock (to avoid a loss based on bad
news).
Besides your obligation to
refrain from trading while in possession of
material, nonpublic information, you are also
prohibited from “tipping” others. The concept of
unlawful tipping includes passing on information
to friends or family members under circumstances
that suggest that you were trying to help them
make a profit or avoid a loss. When tipping
occurs, both the “tipper” and the “tippee” may
be held liable, and this liability may extend to
all those to whom the tippee, in turn, gives the
information.
The basic Company policy
in the insider trading area is that no trading
under any circumstances is permitted by Company
personnel while such personnel or members of
their households possess material, nonpublic
information, as described above. In addition,
certain individuals are restricted from trading
during restricted trading periods, generally in
connection with the Company’s earnings
announcements.
The Company, its
employees, and representatives must treat
customers, business allies and suppliers fairly
and may not engage in practices that unlawfully
restrict the free market economy. In addition,
the Company and employees and directors must
comply with all U.S. and non-U.S. laws, rules
and regulations applicable in the country, state
and local jurisdiction where the Company
conducts business.
Permissible
Payments
The payment of normal
discounts and allowances, commissions, fees,
sales promotion activity, entertainment, and the
extension of services and other customary
courtesies in the ordinary course of business is
permissible so long as they have been authorized
and properly recorded. If a customer, supplier,
vendor or government agency has adopted a more
stringent policy than the Company’s regarding
gifts and gratuities, then you must comply with
that more stringent policy when dealing with
that person or entity. (See below for a
discussion of gifts to government
representatives.)
Anti-Bribery
The Company’s objective is
to compete in the marketplace on the basis of
superior products, services and competitive
prices. No payment in any form (whether funds or
assets) shall be made directly or indirectly to
anyone for the purpose of obtaining or retaining
business or to obtain any other favorable
action. It is imperative that each and
every person who does business with the Company
understands that we will not, under any
circumstances, give or accept bribes or
kickbacks. A violation of this policy will
subject you to corrective action as well as
potential criminal prosecution.
Gifts
No gift should be accepted
from a supplier, vendor or customer unless the
gift has insubstantial value (defined as less
than $25) or a refusal to accept it would be
discourteous or otherwise harmful to the
Company. This applies equally to gifts to
suppliers or vendors or nongovernmental
customers. (See below for a discussion of gifts
to government representatives.) All gifts
received should be reported to your supervisor.
Cash or loans are never to be offered or
accepted as gifts.
Entertainment
Appropriate business
entertainment of non-government employees
occurring in connection with business
discussions or the development of business
relationships is generally deemed appropriate in
the conduct of official business. This may
include business-related meals and trips,
refreshments before or after a business meeting,
and occasional athletic, theatrical or cultural
events. Entertainment in any form that would
likely result in a feeling or expectation of
personal obligation should not be extended or
accepted.
Government
Representatives
What is acceptable
practice in the commercial business environment
may be illegal or against the policies of
federal, state or local governments. Therefore,
no gifts or business entertainment of any kind
may be given to any government employee without
the prior approval of the CAO or the CFO.
In addition, the Foreign
Corrupt Practices Act (“FCPA”) prohibits giving
anything of value to officials or political
parties of foreign governments in order to
obtain or retain business or to gain any
improper advantage. Any proposed incentive to be
given to government personnel to secure an
improper advantage is not permitted. In your
relations with governmental agencies or
customers, the Company and you may not directly
or indirectly engage in bribery, kickbacks,
payoffs or other corrupt business practices. If
you suspect that any payment is being used for
improper purposes, you must immediately report
the situation to the CAO or CFO for
investigation.
In certain instances, the
FCPA does allow what are referred to as
“facilitating payments.” Typically, these are
nominal payments given to relatively low-ranking
government personnel to hasten the inspection of
goods or the performance of other basic
administrative tasks. Nonetheless, the Company
strongly discourages these payments, and in any
case, the payment must also be consistent with
applicable laws of the host country. If you are
faced with or anticipate a situation that may
involve a facilitating payment, contact
the CAO or the CFO before taking any action.
The FCPA also prohibits
knowingly falsifying the Company’s books and
records or knowingly circumventing or failing to
implement accounting controls.
Third-Party Agents
The Company’s business may
involve the use of agents, consultants, brokers
or representatives in connection with its
dealings with governmental entities,
departments, officials and employees. These
arrangements may not be employed to do anything
prohibited by this Code. The commissions or fees
payable to a third party must be reasonable in
amount for the services rendered in accordance
with local business practices.
It is our policy to fully
comply with all applicable U.S. export, customs
and trade control laws and regulations,
licensing requirements, relevant non-U.S. laws
and international sanctions. The Company is
responsible for customs, export and trade
control compliance. To the extent feasible, the
Company is expected to perform due diligence and
know its customer in any business transaction.
Any investigation or inquiry by a U.S.
governmental organization regarding alleged
trade control violations or irregularities
should be immediately reported to the CAO or the
CFO.
As a public company, it is
of critical importance that our filings and
submissions with the Securities and Exchange
Commission (the “Commission”) be accurate and
timely. Depending on your position with the
Company, you may be called upon to provide
necessary information to assure that the
Company’s public reports and documents filed
with the Commission and in other public
communications by the Company are full, fair and
understandable. The Company expects you to
provide prompt, accurate answers to inquiries
related to the Company’s public disclosure
requirements.
The CAO and the CFO have
company-wide responsibility for developing,
administering and coordinating the records
management program, and issuing retention
guidelines for specific types of documents.
Records should be maintained to comply with
applicable statutory, regulatory or contractual
requirements, as well as pursuant to prudent
business practices. The Company prohibits any
employee or director from altering, destroying,
mutilating or concealing a record, document, or
other object, or attempt to do so, with the
intent to impair the object’s integrity or
availability for use in an official proceeding.
We have established and
maintain a high standard of accuracy and
completeness in our financial records. These
records serve as the basis for managing our
business, for measuring and fulfilling our
obligations to employees, customers, suppliers
and others, and for compliance with tax and
financial reporting requirements.
In the preparation and
maintenance of records, employees must make and
keep books, invoices, records and accounts that,
in reasonable detail, accurately and fairly
reflect the financial transactions of the
Company. These records must comply with
generally accepted accounting practices and
principles. Accounting entries must be promptly
and accurately recorded and properly documented.
No accounting entry may intentionally distort or
disguise the true nature of any transaction. The
Company prohibits the establishment of any
undisclosed or unrecorded funds or assets for
any purpose.
Each employee must
maintain accurate records of transactions, time
reports, expense accounts and other company
records. You are prohibited from making a
representation, either in a document or in oral
communication, which is other than fully
accurate. The Company has devised, implemented
and maintained a system of internal accounting
controls that is sufficient to provide
reasonable assurances that financial
transactions are properly authorized, executed
and recorded. You must comply with this system
and report any incident that you believe is in
violation of the requirements of this system.
See “Reporting Violations”
in Section XVIII below for specific information
on reporting violations of this Code, as well as
issues regarding accounting, internal accounting
controls or auditing matters, harassment or
discrimination, or any other issue.
Company assets are to be
used only for the legitimate business purposes
of the Company and its subsidiaries and only by
authorized employees or their designees. This
includes both tangible and intangible assets.
Some examples of tangible
assets include office equipment, such as
telephones, copy machines, computers, furniture,
supplies and production equipment. Some examples
of intangible assets include intellectual
property, such as pending patent information,
trade secrets or other confidential or
proprietary information (whether in printed or
electronic form).
You are responsible for
ensuring that appropriate measures are taken to
assure that Company assets are properly
protected. In addition, you should take
appropriate measures to ensure the efficient use
of Company assets, since theft, carelessness and
waste have a direct impact on the Company’s
profitability.
Use of E-mail and
the Internet
The use of the Company’s
electronic mail (e-mail) system and connection
to the Internet should be used primarily for
Company business. All employees, officers and
directors should use the same care, caution and
etiquette in sending e-mail messages as in all
other written or oral business communications.
The Company will not tolerate discriminatory,
offensive, defamatory, pornographic and other
similar type of messages or materials sent by
e-mail or accessed through the Internet. Since
the e-mail system and Internet connection are
Company resources, the Company reserves the
right at any time to monitor and inspect without
notice, all electronic communications on
personal computers owned by the Company or
computers on the premises used in the business
of the Company.
Computer Software
Most computer software is
protected by copyrights. The Company’s policy is
to respect copyrights and to strictly adhere to
all relevant laws and regulations regarding the
use and copying of computer software. Therefore,
the unauthorized duplication of software,
whether or not owned by the Company, is
prohibited, even if the duplication is for
business purposes, is of limited duration, or is
otherwise accepted local practice.
You should take steps to
ensure compliance with the standards set forth
in this Code in the operations of the Company.
If there are instances of non-compliance,
employees and directors shall ensure timely and
reasonable remediation of any noncompliance,
whether found by internal or external monitors,
and ensure that adequate steps are taken to
prevent the recurrence and/or occurrence in the
Company. In instances where the proper and
ethical course of action is unclear, you should
seek counsel from the CAO or the CFO.
All managerial personnel
are responsible for the necessary distribution
of this Code to ensure employee knowledge and
compliance on a worldwide basis.
You are encouraged to
submit any concerns or complaints anonymously
and/or confidentially regarding violations of
this Code, accounting, internal accounting
controls or auditing matters, harassment,
discrimination, or any other issue to the CAO,
CFO, CEO or the Chair of the Audit Committee.
If the subject of such report relates to the
Company’s finances or reported results, the
Procedures for Complaints Regarding Accounting,
Internal Accounting Controls or Auditing Matters
which have been adopted by the Audit Committee
of the Board of Directors and can be found on
the Company’s website, will apply. The values
and responsibilities outlined in this Code are
important to the Company and must be taken
seriously by all employees. As a result,
violations of these values and responsibilities
will not be tolerated.
You are encouraged to
speak to your supervisor, manager or other
appropriate personnel when in doubt about the
best course of action in a particular situation.
You are also encouraged to promptly report
information or knowledge of any act in violation
of the laws, rules, regulations or this Code, or
which you believe to be unethical.
In no event will any
action be taken against you for making a
complaint or reporting, in good faith, known or
suspected violations of Company policy. You will
not lose your job for refusing an order you
reasonably believe would violate the provisions
of this Code, and any retaliation against you is
prohibited.
Any report by an employee
or director will be kept confidential to the
extent permitted by law and regulation and the
Company’s ability to address these concerns. In
certain instances, the identity of the reporting
employee, officer or director may be provided to
those persons involved in the investigation.
Violations of the rules
and policies of conduct set forth in this Code
may result in one or more of the following
corrective actions, as appropriate:
•
a warning;
•
a reprimand (noted in the employee’s
personnel record)
•
probation;
•
demotion;
•
temporary suspension;
•
required reimbursement of losses or
damages;
•
termination of employment; and/or
•
referral for criminal prosecution or
civil action.
Corrective actions may
apply to any supervisor who directs or approves
any prohibited actions, or has knowledge of them
and does not promptly correct them.
As stated above, reporting
possible violations of this Code will not result
in retaliation against the employee for making
this report.
Conduct that violates this
Code may also violate federal or state laws or
laws outside the United States. These violations
may subject you to prosecution, imprisonment and
fines. The Company may also be subject to
prosecution and fines for your conduct.
We reserve the right to
amend, modify, waive or terminate these rules
and policies at any time for any reason.
We will disclose any
waivers of this Code for executive officers or
directors of the Company, in accordance with the
provisions of the Securities Exchange Act of
1934, as amended and the rules thereunder, and
the applicable rules of the NASDAQ Stock Market,
Inc. Waivers of this Code for executive officers
and directors can be granted only by the Board
of Directors.
Nothing in this Corporate
Code of Ethics is intended to create an express
or implied contract of employment. The
maintenance of this Policy does not modify the
employment at will relationship which exists
between the Company and its employees.
