Attached files
| file | filename |
|---|---|
| 8-K - GetFugu, Inc. | v165106_8k.htm |
| EX-3.3 - GetFugu, Inc. | v165106_ex3-3.htm |
| EX-3.2 - GetFugu, Inc. | v165106_ex3-2.htm |
| EX-10.3 - GetFugu, Inc. | v165106_ex10-3.htm |
| EX-10.2 - GetFugu, Inc. | v165106_ex10-2.htm |
| EX-99.1 - GetFugu, Inc. | v165106_ex99-1.htm |
| EX-10.1 - GetFugu, Inc. | v165106_ex10-1.htm |
| EX-14.1 - GetFugu, Inc. | v165106_ex14-1.htm |
GETFUGU,
INC.
Audit
Committee Charter
Purpose
The Audit
Committee (“Committee”) of the Board of Directors (“Board”) of GetFugu, Inc.
(“GetFugu” or the “Company”) is appointed and given authority by the Board
to:
1.
Assist
the Board in monitoring
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(a)
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The
integrity of the financial reporting process, systems of internal controls
and financial statements and reports of the Company;
and
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(b)
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The
compliance by the Company with legal and regulatory
requirements.
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2.
Be
responsible for the appointment, compensation and oversight of the Company’s
independent auditors (the “Auditors”).
3.
Resolve
disagreements between management and the
Auditors.
Committee
Membership
The
Committee shall consist of no fewer than three members, as determined annually
by the Board. The members of the Committee shall meet the
independence and expertise requirements of the American Stock Exchange, Nasdaq
National Market, or any other exchange on which the Company’s securities are
traded, Section 10A(m)(3) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and the rules and regulations of the Securities and
Exchange Commission (the “SEC”). Committee members shall not serve
simultaneously on the audit committees of more than two other public companies
without the approval of the full Board.
No member
of the Committee shall receive directly or indirectly any consulting, advisory,
or other compensatory fees from the Company other than (1) director’s fees for
service as a director of the Company, including reasonable compensation for
serving on Board committees and regular benefits that other directors receive;
and (2) a pension or similar compensation for past performance, provided that
such compensation is not conditioned on continued or future service to the
Company. In addition, no member of the Committee may be an affiliate
of the Company or any subsidiary of the Company whether by being an officer or
owning more than 10 percent of the Company’s voting securities.
Qualifications
All
members of the Committee shall be able to read and understand fundamental
financial statements (including a company’s balance sheet, income statement, and
cash flow statement) and at least one member must either have past employment
experience in finance or accounting, requisite professional certification in
accounting, or any other comparable experience or background, which results in
the individual’s financial sophistication, including being or having been a
chief executive officer, chief financial officer, or other senior officer with
financial oversight responsibilities or be an “audit committee financial expert”
as defined by the Securities and Exchange Commission (the
“SEC”). Committee members may enhance their familiarity with finance
and accounting by participating in educational programs conducted by the Company
or by outside organizations.
Committee
members shall not serve simultaneously on the Committees of more than two other
public companies without the approval of the full Board.
The
members of the Committee shall be appointed annually by the
Board. Committee members may be replaced by the Board at any time for
good cause as determined by the Board. The Board shall designate the
Chairperson of the Committee. The Board shall determine whether at
least one member of the Committee qualifies as a “financial expert” within the
meaning of the Exchange Act, and cause such determination to be disclosed in the
Company’s filings as required by applicable SEC rules.
Responsibility
and Authority
The basic
responsibility of the members of the Committee is to exercise their business
judgment to act in what they reasonably believe to be in the best interests of
the Company and its shareholders. In discharging that obligation,
members should be entitled to rely on the honesty and integrity of the Company’s
senior executives and its outside auditors, attorneys and advisors, to the
fullest extent permitted by applicable law.
Pursuant
to Article 5 of the Bylaws of the Corporation, the Committee shall have and may
exercise all the powers and authority of the Board in all matters required,
necessary or reasonable in the performance of the Committee purpose,
responsibility and functions described in this Charter.
The
Committee shall prepare the report required by the rules of the SEC to be
included in the Company’s annual proxy statement.
The
Committee shall oversee the integrity of the audit process, financial reporting
and internal accounting controls of the Company, oversee the work of the
Company’s management and the Auditors in these areas, oversee management’s
development of, and adherence to, a sound system of internal accounting and
financial controls, review whether the Auditors objectively assess the Company’s
financial reporting, accounting practices and internal controls, and provide an
open avenue of communication between the Auditors and the Board.
Under the
oversight of the Committee and the Board, it is the responsibility
of:
1. Management
of the Company and the Auditors, to plan and conduct financial audits and to
determine that the Company’s financial statements and disclosures are complete
and accurate in accordance with generally accepted accounting principles
(“GAAP”) and applicable rules and regulations and fairly present, in all
material respects, the financial condition of the Company.
2. Management
of the Company, to assure compliance by the Company with applicable legal and
regulatory requirements.
3. Management
of the Company, to review the Company’s internal transactions and accounting
which do not require involvement in the detailed presentation of the Company’s
financial statements.
Responsibility
Regarding Auditors
The
Committee shall be directly responsible for the appointment (subject, if
applicable, to shareholder ratification), compensation and oversight of the work
of the Auditors, including without limitation retention, terms of engagement,
evaluation and termination of the Auditors. The Committee shall also
be responsible for the resolution of any disagreements between management and
the Auditors, including without limitation disputes regarding accounting,
internal control and auditing matters. The Auditors shall report
directly to the Committee.
The
Committee shall evaluate, at least annually, the qualifications, performance and
independence of the Auditors, including considering whether the Auditors’
quality controls are adequate and the provision of non-audit services is
compatible with maintaining the Auditors’ independence, and taking into account
the opinions of management. The Committee shall present its
conclusions to the Board.
The
Committee shall oversee the rotation of the Auditor’s lead or coordinating audit
partner having primary responsibility for the audit and the audit partner
responsible for reviewing the audit at least once every five years, and oversee
the rotation of other audit partners, in accordance with the rules of the
SEC.
Meetings
and Reports
The
Committee shall meet at least quarterly with management and the Auditors in
separate executive sessions to discuss matters for which the Committee has
responsibility. The Committee shall make regular reports to the
Board. The Committee shall review and reassess the adequacy of this
Charter annually and recommend any proposed changes to the Board for
approval. The Committee shall annually review its own
performance.
The
Committee shall periodically communicate with management, in order to obtain and
review information concerning adopted accounting principles and internal
controls, and the impact of each on the quality and reliability of the Company’s
financial statements.
The
Committee shall review and discuss quarterly reports from the Auditors
on:
1. Critical
accounting policies and practices to be used by the Company and the
Auditors.
2. Alternative
treatments within GAAP for policies and practices related to material items that
have been discussed with management, including ramifications of the use of such
alternative disclosures and treatments.
3. The
internal controls adhered to by the Company, management, and the Company’s
financial and accounting personnel, and the impact of each on the quality and
reliability of the Company’s financial reporting.
4. The
adoption of, or changes to, the Company’s significant accounting principles and
practices as suggested by the Auditors or management.
5. Other
material written communications between the Auditors and
management.
6. The
Committee shall obtain and review a report from the Auditors at least annually
regarding:
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a.
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The
Auditors’ internal quality-control
procedures.
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b.
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Any
material issues raised by the most recent internal quality-control review,
or peer review, of the firm, or by any inquiry or investigation by
governmental or professional authorities, within the preceding five years
respecting one or more independent audits carried out by the firm; and any
steps taken to deal with any such
issues.
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c.
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All
relationships between the Auditors and the Company, including the written
disclosures and the letter required by Independence Standards Board
Standard 1, as that standard may be modified or supplemented from time to
time.
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7. The
Committee shall meet at least quarterly, or more frequently as it determines
necessary or appropriate. The Chairperson shall preside at each
meeting; in the absence of the Chairperson, one of the other members of the
Committee shall be designated as the acting chair of the meeting. The
Chairperson may direct appropriate members of management and staff to prepare
draft agendas and related background information for each Committee
meeting. The draft agenda shall be reviewed and approved by the
Chairperson in advance of distribution to the other Committee
members. Any background materials, together with the agenda, should
be distributed to the Committee members sufficiently in advance of the
meeting. All meetings of the Committee shall be held pursuant to the
Bylaws of the Company with regard to notice and waiver thereof, and written
minutes of each meeting, prepared by any person in attendance designated by the
Chairperson, in the form approved by the Committee, shall be copied to the full
Board and duly filed in the Company records. Reports of meetings of
the Committee shall be made to the Board at its next regularly scheduled meeting
following the Committee meeting, accompanied by any recommendations to the Board
approved by the Committee. The report to the Board may take the form
of an oral report by the Chairperson or any other member of the Committee
designated by the Committee to make such report.
The
Committee may form and delegate authority to subcommittees consisting of one or
more members when it deems appropriate.
The
Committee may request any officer or employee of the Company or the Company’s
outside counsel or Auditors to attend, or not attend, any meeting of the
Committee or to meet with any members of, or consultants to, the
Committee.
Independent
Counsel and Advisors
The
Committee shall have the authority, to the extent it deems necessary or
appropriate, to retain independent legal, accounting and other advisers. In
addition to individual compensation to members for serving on the Committee as
reasonably determined by the Board, the Company shall provide appropriate
funding, as determined by the Committee, for payment of (i) compensation to the
Auditors for the purpose of rendering or issuing an audit report, (ii)
compensation to any advisers employed by the Committee, (iii) obtaining any
insurance coverage deemed reasonable or necessary by the Committee, and (iv)
funding ordinary administrative expenses of the Committee that it deems
reasonable or necessary in carrying out its duties, subject only to any
limitations imposed by applicable laws, rules and regulations.
Pre-Approval
of Permitted Services
The
Committee shall pre-approve all audit services and non-audit services (including
the fees and terms thereof) to be performed for the Company by the Auditors to
the extent required by and in a manner consistent with applicable law, in
accordance with the Committee Pre-Approval Policy attached hereto as Exhibit
“A.”
Process
for Handling Complaints
The
Committee shall advise the Board with respect to the Company’s policies and
procedures regarding compliance with applicable laws and regulations and its
Code of Ethics.
As part
of the Board's procedure for receiving and handling complaints or concerns about
the Company’s conduct, the Committee has established procedures for
confidential, anonymous submission of complaints regarding accounting or
auditing matters, as set forth in the Employee Complaint Procedures for
Accounting and Auditing Matters attached hereto as Exhibit “B.”
Financial
Statement and Disclosure Matters
In
performing its functions, the Committee shall undertake those tasks and
responsibilities that, in its judgment, would contribute most effectively to and
implement the purposes of the Committee. In addition to the general
tasks and responsibilities noted above, the specific functions of the Committee
may include the following:
1. Review
and discuss with management, and to the extent the Committee deems necessary or
appropriate, outside counsel or the Auditors, the Company’s disclosure controls
and procedures that are designed to ensure that the reports the Company files
with the SEC comply with the SEC’s rules and forms.
2. Review
and discuss with management and the Auditors the annual audited financial
statements, including disclosures made in management’s discussion and analysis
and the matters required to be discussed by Statement on Auditing Standards
(“SAS”) No. 61 relating to the conduct of the audit, and recommend to the Board
whether the audited financial statements should be included in the Company’s
Form 10-K.
3. Review
and discuss with management and the Auditors the Company’s quarterly financial
statements, including disclosures made in management’s discussion and analysis
and the matters required to be discussed by SAS No. 61, prior to the filing of
its Form 10-Q, including the results of the Auditors’ reviews of the quarterly
financial statements.
4. Review
and discuss with management, internal or outside counsel and the Auditors (a)
significant financial reporting issues and judgments made in connection with the
preparation of the Company’s financial statements and (b) the development,
selection and disclosure of critical accounting estimates and the analyses of
alternative assumptions or estimates, and the effect of such estimates on the
Company’s financial statements, and (c) the adequacy and effectiveness of the
Company’s internal controls over financial reporting.
5.
Receive and review disclosures made to the Committee by the Company’s Chief
Executive Officer and Chief Financial Officer during their certification process
for the Company’s Form 10-K and Form 10-Q about (a) any significant deficiencies
in the design or operation of internal controls or material weakness therein,
(b) any fraud involving management or other associates who have a significant
role in the Company’s internal controls and (c) any significant changes in
internal controls or in other factors that could significantly affect internal
controls subsequent to the date of their evaluation.
Annual
Report
The
Committee shall prepare annually a report for inclusion in the Company’s proxy
statement relating to its annual shareholders meeting. In that
report, the Committee will state whether it has: (a) reviewed and discussed the
audited financial statements with management; (b) discussed with the Auditors
the matters required to be discussed by SAS No. 61, as that statement may be
modified or supplemented from time to time; (c) received from the Auditors the
written disclosures and the letter required by Independence Standards Board
Standard 1, as that standard may be modified or supplemented from time to time,
and has discussed with the Auditors, the Auditors’ independence; and (d) based
on the review and discussions referred to above, recommended to the Board that
the audited financial statements be included in the Company’s Annual Report on
Form 10-K for the last fiscal year for filing with the SEC.
Indemnification
The
Company shall, to the maximum extent and in the manner permitted by Section 145
of the Delaware General Corporation Law, indemnify each member of the Committee
against expenses, judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with any proceeding arising by reason of the
fact that such person is or was a member of the Committee and/or the
Board.
Limitation
of Committee's Role
With
respect to the foregoing responsibilities and processes, the Committee
recognizes that the Company's financial management as well as the Auditors have
more time, knowledge, and detailed information regarding the Company than do
Committee members. Consequently, in discharging its oversight
responsibilities, the Committee will not provide or be deemed to provide any
expertise or special assurance as to the Company's financial statements or any
professional certification as to the Auditors' work.
While the
Committee has the responsibilities and powers set forth in this Charter, it is
not the duty of the Committee to plan or conduct audits or to determine that the
Company's financial statements and disclosures are complete and accurate and are
in accordance with generally accepted accounting principles and applicable rules
and regulations. The Auditors are responsible for performing an audit
in accordance with the Public Company Accounting Oversight Board’s rules and
standards. Management, not the Committee, is responsible for ensuring
that the Company’s financial statements and disclosures are complete and
accurate and in accordance with generally accepted accounting principals and the
applicable rules and regulations of the Securities and Exchange
Commission. It also is not the duty of the Committee to conduct
investigations or to assure compliance with laws and regulations and the
Company's internal policies and procedures.