Attached files
Exhibit 3.5(a)
AMENDED
CHARTER FOR THE
AUDIT
COMMITTEE
OF
THE BOARD OF DIRECTORS
OF
NEWCARDIO,
INC.
As
of February 23, 2010
PURPOSE:
The
purpose of the Audit Committee of the Board of Directors (the “Board”) of NewCardio, Inc.
(the “Company”) shall
be to:
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Oversee
the Company’s accounting and financial reporting processes and the audit
of the Company’s financial
statements;
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Assist
the Board in oversight of (i) the integrity of the Company’s
financial statements, (ii) the Company’s compliance with legal and
regulatory requirements, including the requirements of Rule 10A-3 of the
Securities and Exchange Commission (the “SEC”), (iii) the independent
auditor’s qualifications, independence and performance, (iv) the Company’s
internal audit function; (v) communication among the Company’s independent
auditor, management and the Board, and (vi) the Company’s internal
accounting and financial controls and controls over financial reporting;
and
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Provide
to the Board such information and materials as it may deem necessary to
make the Board aware of significant financial matters that require the
attention of the Board.
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In
furtherance of these purposes, the Audit Committee will undertake those specific
duties and responsibilities listed below and such other duties as the Board may
from time to time prescribe.
The
Committee may conduct or authorize investigations into any matters within the
scope of the powers and responsibilities delegated to the Committee. It
shall have direct access to all company personnel and to the independent
auditor. The Committee may retain any independent counsel, experts
or advisors (accounting, financial or otherwise) that the Committee believes to
be necessary or appropriate. The Committee may also
utilize the services of the Company’s regular legal counsel or other advisors to
the Company. The Company shall provide for appropriate funding, as
determined by the Committee, for payment of compensation to the independent
auditor for the purpose of rendering or issuing an audit report or performing
other audit, review or attest services, for payment of compensation to any
advisors employed by the Committee and for ordinary administrative expenses of
the Committee that are necessary or appropriate in carrying out its
duties.
In
addition to the powers and responsibilities expressly delegated to the Committee
in this Charter, the Committee may exercise any other powers and carry out any
other responsibilities delegated to it by the Board from time to time consistent
with the Company’s bylaws. The powers and responsibilities delegated by
the Board to the Committee in this Charter or otherwise shall be exercised and
carried out by the Committee as it deems appropriate without requirement of
Board approval, and any decision made by the Committee (including any decision
to exercise or refrain from exercising any of the powers delegated to the
Committee hereunder) shall be at the Committee’s sole discretion. While
acting within the scope of the powers and responsibilities delegated to it, the
Committee shall have and may exercise all the powers and authority of the
Board. To the fullest extent permitted by law, the Committee shall have
the power to determine which matters are within the scope of the powers and
responsibilities delegated to it.
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The Audit
Committee’s responsibility is one of oversight. The members of the
Audit Committee are not employees of the Company, and they do not perform, or
represent that they perform, the functions of management or the independent
auditors. The Audit Committee relies on the expertise and knowledge
of management and the independent registered accounting firm in carrying out its
oversight responsibilities. The management of the Company is
responsible for preparing accurate and complete financial statements in
accordance with generally accepted accounting principles and for establishing
and maintaining appropriate accounting principles and financial reporting
policies and satisfactory internal control over financial
reporting. The independent registered accounting firm is responsible
for auditing the Company’s annual consolidated financial statements and, if
required, the effectiveness of the Company’s internal control over financial
reporting and reviewing the Company’s quarterly financial
statements. It is not the responsibility of the Audit Committee to
prepare or certify the Company’s financial statements or guarantee the audits or
reports of the independent auditors, nor is it the duty of the Audit Committee
to certify that the independent auditor is “independent” under applicable
rules. These are the fundamental responsibilities of management and
the independent auditors.
MEMBERSHIP:
The Audit
Committee members shall be appointed by, and shall serve at the discretion of,
the Board. The Audit Committee shall consist of at least three
members of the Board. The Board may designate one member of the Audit
Committee as its chair. The Audit Committee may form and delegate
authority to subcommittees when appropriate. Members of the Audit
Committee must meet the following criteria (as well as any criteria required by
the SEC):
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Each
member will be an independent director in accordance with (i) the
audit committee requirements of the Nasdaq Stock Market, Inc. Listing
Rules (the “Nasdaq
Rules”) (including the 5000 series), and (ii) the rules of the
SEC (including Rule 10A-3);
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Each
member will be able to read and understand fundamental financial
statements, in accordance with the Audit Committee requirements of the
Nasdaq Rules;
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At
least one member will have past employment expertise in finance or
accounting, requisite professional certification in accounting, or 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 a principal financial
officer or other senior officer with financial oversight responsibilities;
and
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At
least one member will be an “audit committee financial expert” as defined
in the rules of the SEC.
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RESPONSIBILITIES AND
DUTIES:
The
responsibilities and duties of the Audit Committee shall include:
Review
Procedures
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Reviewing
the reports of management and, if applicable, the independent auditors
concerning the design, implementation and maintenance of the Company’s
internal controls and procedures for financial reporting, including
meeting periodically with the Company’s management and, if applicable, the
independent auditors to review their assessment of the adequacy of such
controls and to review before release the disclosure regarding such system
of internal controls required under SEC rules to be contained in the
Company’s periodic filings and, if applicable, the attestations or reports
by the independent auditors relating to such
disclosure;
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Reviewing
and providing oversight of the external audit by (i) reviewing the
independent auditors’ proposed audit scope and approach;
(ii) discussing with the Company’s independent auditors the financial
statements and audit findings, including any significant adjustments,
management judgments and accounting estimates, significant new accounting
policies, disagreements with management and any other matters described in
SAS No. 61 or any successor provision; (iii) reviewing with the
independent auditors the Company’s critical accounting policies and
practices, alternative treatments of financial information within
generally accepted accounting principles that have been discussed with
management and the treatment recommended by the independent auditors, and
other material written communications between the independent auditors and
management; and (iv) reviewing reports submitted to the audit
committee by the independent auditors in accordance with applicable SEC
requirements;
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Reviewing
and discussing with management and the independent auditors the annual
audited financial statements and quarterly unaudited financial statements,
including the Company’s disclosures under “Management’s Discussion and
Analysis of Financial Condition and Results of Operations,” prior to
filing the Company’s Annual Report on Form 10-K and Quarterly Reports
on Form 10-Q, respectively, with the
SEC;
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Recommending
to the Board, if deemed appropriate, that the audited financial statements
be included in the Company’s Annual Report on Form 10-K, in accordance
with the rules and regulations of the
SEC;
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Directing
the Company’s independent auditors to review before filing with the SEC
the Company’s interim financial statements included in Quarterly Reports
on Form 10-Q, using professional standards and procedures for
conducting such reviews;
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Conducting
a post-audit review of the financial statements and audit findings,
including any suggestions for improvements provided to management by the
independent auditors, and management’s response to such
suggestions;
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Reviewing,
prior to announcement, Company press releases and other disclosures
containing financial information for the purpose of ensuring that such
press releases and other disclosures properly disclose financial
information presented in accordance with GAAP and, to the extent non-GAAP
information is included, adequately disclose how such non-GAAP information
differs from the comparable GAAP information and ensure that disclosure of
such non-GAAP information is not given undue prominence and that such
non-GAAP information does not provide a misleading presentation of the
Company’s results of operations or financial
condition;
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Providing
oversight and review at least annually of the Company’s risk management
policies, including its investment
policies;
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Reviewing
and approving in advance any proposed related party
transactions;
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Reviewing,
in conjunction with counsel, any legal matters that could have a
significant impact on the Company’s financial
statements;
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Reviewing
its own charter and processes on an annual
basis;
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Independent
Auditors
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Having
sole authority over appointing, compensating and overseeing the work of
the independent auditors (including resolving disagreements between
management and the independent auditors regarding financial reporting) for
the purpose of preparing or issuing an audit report or related
work;
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Reviewing,
at least annually, the independence of the outside auditors, including
(i) obtaining on a periodic basis a written statement from the
independent auditors regarding relationships and services with the Company
that may impact independence, as defined by applicable standards and SEC
requirements, and discussing with the independent auditors their
independence, (ii) presenting this statement to the Board, and
(iii) to the extent there are relationships, monitoring and
investigating them;
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Receive
and review annually a report by the independent auditor describing the
firm’s internal quality-control procedures, any material issues raised by
the most recent internal quality-control review, peer review, or PCAOB
review, of the independent auditing 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; and any
other required reports from the independent registered public accounting
firm;
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Pre-approving
audit and permissible non-audit services provided to the Company by the
independent auditors, except where pre-approval is not required because
such non-audit services are de minimis under the rules of the SEC, in
which case subsequent approval may be obtained. The Audit
Committee may delegate to one or more designated members of the Audit
Committee the authority to pre-approve audit and permissible non-audit
services, provided such pre-approval decision is presented to the full
Audit Committee at its scheduled
meetings;
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Regulatory
Compliance and Other Matters
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Overseeing
compliance with the requirements of the SEC for disclosure of auditor’s
services and audit committee members, member qualifications and
activities;
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Reviewing
management’s monitoring of compliance with the Foreign Corrupt Practices
Act;
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Providing
a report, if applicable, for inclusion in the Company’s annual public
filings in accordance with the rules and regulations of the SEC;
and
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Establishing
procedures for receiving, retaining and treating complaints received by
the Company regarding accounting, internal accounting controls or auditing
matters and procedures for the confidential, anonymous submission by
employees of concerns regarding questionable accounting or auditing
matters.
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MEETINGS:
The Audit
Committee shall meet at least once each fiscal quarter. The Audit
Committee may meet either in person or telephonically, and at such times and
places as the Audit Committee determines. The Audit Committee may
establish its own meeting schedule, which it shall provide to the
Board. The Audit Committee may invite to its meetings other Board
members, Company management, representatives of the independent auditor,
financial personnel employed or retained by the Company, and such other persons
as the Audit Committee deems appropriate in order to carry out its
responsibilities. All non-management directors that are not members
of the Committee may attend and observe meetings of the Committee, but shall not
participate in any discussion or deliberation unless invited to do so by the
Committee, and in any event shall not be entitled to vote. The Audit
Committee also may exclude from its meeting any person it deems appropriate to
be excluded, including, but not limited to, any non-management Board member who
is not a member of the Audit Committee.
The Audit
Committee shall meet separately with the Chief Executive Officer and separately
with the Chief Financial Officer of the Company at such times as it deems
appropriate to review the financial affairs of the Company. The Audit
Committee will meet separately with the independent auditors of the Company at
such times as it deems appropriate, but not less than quarterly.
MINUTES:
The Audit
Committee will maintain written minutes of its meetings, which minutes will be
filed with the minutes of the meetings of the Board.
REPORTS:
The Audit
Committee shall make regular reports to the full Board on the actions and
recommendations of the Audit Committee.
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COMPENSATION:
Members
of the Audit Committee shall receive such fees, if any, for their service as
Audit Committee members as may be determined by the Board in its sole
discretion.
Members
of the Audit Committee may not receive any compensation from the Company except
the fees that they receive for service as a member of the Board or any committee
thereof.
The
independent auditors shall report directly to the Audit Committee. In
addition, the Audit Committee may retain, as appropriate and at the Company’s
expense, outside legal, accounting or other advisors to advise or assist the
Audit Committee in the performance of any of the responsibilities and duties set
forth above.
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