CHARTER OF THE AUDIT COMMITTEE
OF THE BOARD OF DIRECTORS OF
CALMARE THERAPEUTICS INCORPORATED
The Audit Committee (the "Committee") shall provide assistance to the Board of Directors (the "Board") of Calmare Therapeutics Incorporated (the "Company") in fulfilling its responsibility to the shareholders relating to corporate accounting matters, the financial reporting practices of the Company, and the quality and integrity of the financial reports of the Company. The purpose of the Committee shall be to assist the Board with oversight of:
- The reliability and integrity of the Company's financial statements, accounting policies and disclosure practices;
- The Company's compliance with legal and regulatory requirements, including the Company's disclosure controls and procedures;
- The independent auditor's qualifications, engagement, compensation, and independence; and
- The performance of the Company's internal audit function and independent auditor.
The Committee shall encourage free and open communication among the Committee members, the Board, the independent auditor, and management to promote continuous improvement of and adherence to the Company's policies, procedures and practices. The Company's independent auditor will report directly to the Committee and is ultimately accountable to the Board, as representatives of the Company's shareholders.
The Committee shall consist of three or more members of the Board appointed by the full Board. Each member of the Committee shall be an "independent" director, as determined by the Board, in accordance with the applicable rules of the American Stock Exchange LLC ("AMEX"), the Securities Exchange Act of 1934, as amended, and any other applicable legal or regulatory requirement. All Committee members must be financially literate and able to read and understand fundamental financial statements, including the Company's balance sheet, income statement and cash flow statement. At least one member of the Committee shall be an "audit committee financial expert" as defined by the Securities and Exchange Commission (the "SEC").
No director may serve as a member of the Committee if such director serves on the audit committee of more than three public companies, unless the Board determines that such simultaneous service would not impair the ability of such director to serve effectively on the Committee.
The members of the Committee shall be appointed or reappointed annually and shall serve until such member's successor is appointed by the Board or until such member's earlier death, resignation, removal or cessation as a director of the Company. Any member of the Committee may be removed from the Committee, with or without cause, by a majority vote of the Board. The Board shall also designate a Committee chairperson.
The Committee shall meet at least quarterly, or more frequently as circumstances dictate. The Committee shall meet periodically with each of management and the Company's independent auditor in separate executive sessions to discuss any matters that the Committee or these groups believe should be discussed privately. An agenda, together with materials relating to the subject matter of each meeting, shall be sent to the members of the Committee prior to each meeting. The time and place of the meetings of the Committee and the procedures to be followed at such meetings shall be determined from time to time by the members of the Committee, provided that (i) a quorum for meetings shall be a majority of the members present in person or by telephone or any other telecommunications device which allows all persons participating in the meeting to speak and hear each other, (ii) the affirmative vote of a majority of the members of the Committee present at a meeting at which a quorum is present shall be the act of the Committee, and (iii) the Committee may act by unanimous written consent signed by each member of the Committee. The Committee may meet in executive session, as the Committee deems necessary or appropriate.
The Committee shall maintain written minutes of the meetings, which minutes shall be filed with the minutes of the meetings of the Board.
Responsibilities and Duties
The responsibilities and duties set forth below, shall be the common recurring activities of the Committee in carrying out its purpose as set forth in this Charter. The responsibilities and duties set forth in this Charter should serve as a guide with the express understanding that the Committee may carry out additional responsibilities and duties and adopt additional policies and procedures as may be necessary in light of any changing business, legislative, regulatory, legal or other conditions. The Committee may form, and delegate any of its responsibilities to, a subcommittee so long as such subcommittee is solely comprised of one or more members of the Committee.
To fulfill its responsibilities and duties, the Committee shall:
- Review, with management and the independent auditor, significant accounting and reporting issues, including recent professional and regulatory pronouncements, and understand their impact on the financial statements.
- Ask management and the independent auditor about significant exposure risks and the plans to minimize such risks.
- Resolve disagreements between management and the independent auditor regarding proposed financial reporting.
- Review and discuss with management and the independent auditor the annual and quarterly financial statements prior to their filing, including the Company's disclosure under "Management's Discussion and Analysis of Financial Condition and Results of Operations," and discuss with the independent auditor the matters required to be communicated by applicable Statements of Auditing Standards.
- Review the disclosures made to the Committee by the Company's Chief Executive Officer and Chief Financial Officer during their certification process for the Form 10-K and Form 10-Q about any significant deficiencies in the design or operation of internal controls or material weaknesses therein and any fraud involving management or other employees who have a significant role in the Company's internal controls.
- Inquire as to the existence and substance of any significant accounting accruals, reserves or estimates made by management that had or may have a material impact on the financial statements.
- Review with management and the independent auditor material transactions, arrangements, obligations and other relationships in which the Company is involved (including, but not limited to, transactions which are not directly included in the Company's consolidated financial statements) with unconsolidated entities or others that may have a material current or future effect on the Company's financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources or significant components of revenue or expenses.
- Review with the independent auditor any problems encountered in the course of their audit, including any change in the scope of the planned audit work, any restrictions placed on the scope of such work, any management letter provided by the independent auditor, management's response to any such letter, and the cooperation of the Company's management with the independent auditor.
- In consultation with the independent auditor and management, review the integrity, adequacy and effectiveness of the disclosure controls and procedures of the Company and its internal controls and procedures, and receive and review any recommendations for improvements.
- Meet with management and the independent auditor to review the financial statements and results of the audit.
- Discuss with the independent auditor the matters required to be discussed by (a) Statement on Auditing Standards No. 61 relating to the conduct of the audit, including any difficulties encountered in the course of the audit work, any restrictions on the scope of activities or access to requested information, and any significant disagreements with management, (b) Statement of Auditing Standards No. 90, including whether the Company's accounting principles as applied are conservative, moderate or aggressive from the perspective of income, asset, and liability recognition, and whether or not those principles reflect common or minority practices, and (c) Statement of Auditing Standards No. 100, including the review of the interim financial information of the Company and any material modifications that need to be made to the interim financial information for it to conform with generally accepted accounting principles ("GAAP").
- Discuss generally the Company's philosophy and processes associated with earnings press releases and financial information and earnings guidance provided to analysts and rating agencies.
- Meet at least annually on a private individual basis with all Company employees who are involved in a material way with the preparation of the Company's consolidated financial statements to inquire about the conformance with the Company's financial reporting and internal control policies.
Internal Controls and Audit Coverage
- At least annually, obtain and review a report from the independent auditor describing (a) the independent auditor's internal quality-control procedures, (b) 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, (c) any steps taken to deal with any such issues, and (d) all relationships between the independent auditor and the Company.
- Evaluate whether management is setting the appropriate tone at the top by communicating the importance of internal controls and ensuring that appropriate individuals possess an understanding of their roles and responsibilities.
- Confirm that internal control recommendations made by the independent auditor have been implemented by management.
- Confirm that management and the independent auditor keep the Committee informed about fraud, illegal acts, deficiencies in internal controls and certain other matters.
- Review and discuss with the independent auditor (a) all critical accounting policies and practices to be used and any significant changes thereto, (b) all alternative treatments of financial information with GAAP that have been discussed with management, ramifications of the use of such alternative disclosures and treatments, and the treatment preferred by the independent auditor, and (c) other material written communications between the independent auditor and management, such as any management letter or schedule of unadjusted differences.
- Recommend to the Board policies for the Company's hiring of employees or former employees of the independent auditor who participated in any capacity in the audit of the Company.
Compliance with Laws and Regulations
- Establish procedures for (a) the receipt, retention and treatment of complaints and concerns received by the Company regarding accounting, internal accounting controls, or auditing or related matters, (b) the confidential, anonymous submission by the Company's employees of concerns regarding questionable accounting or auditing matters, and (c) the protection of reporting employees from retaliation.
- Review the effectiveness of the system for monitoring compliance with laws and regulations and the results of management's investigation and follow-up (including disciplinary action) on any alleged fraudulent acts or accounting irregularities.
- Periodically obtain updates from management and counsel regarding compliance.
- Be satisfied that all regulatory compliance matters have been considered in the preparation of the financial statements.
- Review, with the Company's counsel, any legal matters that could have a significant impact on the Company's financial statements.
- Review the findings of any examinations by regulatory agencies, such as the SEC.
- Have the sole authority and responsibility to select (subject to shareholder ratification if sought), evaluate, determine the compensation of and, where appropriate, replace the independent auditor.
- On an annual basis, review and discuss with the independent auditor all significant relationships the auditor has with the Company to determine the auditor's independence.
- Have the sole authority to approve the engagement letter and the fees to be paid to the independent auditor.
- Pre-approve all audit and permitted non-audit services to be performed by the independent auditor (subject to the de minimus exceptions under applicable law, rules and regulations). The Committee may delegate to one or more designated members of the Committee (and has delegated to its Chairman), the authority to grant such pre-approvals. The Chairman or any such delegate shall review any such pre-approvals with the full Committee at its next regularly scheduled meeting. In making its pre-approval determination, the Committee shall consider whether providing the non-audit services is compatible with maintaining the auditor's independence.
- Obtain confirmation and assurance as to the independence of the independent auditor, including ensuring that the independent auditor submit on a periodic basis (not less than annually) to the Committee a formal written statement delineating all relationships between such independent auditor and the Company, consistent with the Independence Standards Board Standard No. 1.
- Review and evaluate the performance of the independent auditor periodically and make determinations regarding the appointment or termination of the independent auditor.
- Assure regular rotation of the lead audit partner, the concurrent partner and other partners as required by applicable law, rules and regulations, and consider whether rotation of the independent auditor is necessary to ensure independence.
- Be responsible for the review and oversight of all "related-party transactions," as such term is defined by the rules of the AMEX.
- Review and evaluate, on an annual basis, (i) the performance of the Committee and its members, including a review of adherence of the Committee to this Charter, and (ii) the adequacy of this Charter, and recommend to the Board any improvements to this Charter that the Committee considers necessary or appropriate.
- Perform such other responsibilities and duties as may be assigned to the Committee from time to time by the Board.
- If necessary, institute special investigations and, if appropriate, hire special counsel or experts to assist.
In discharging its role, the Committee is empowered to inquire into any matter it considers appropriate to carry out its responsibilities. The Committee shall have the authority to retain, terminate and obtain advice, reports or opinions from internal or outside advisors and legal counsel in the performance of its duties and responsibilities, and shall have the sole authority to approve related fees and retention terms. The Committee shall promptly report to the Board its engagement of any advisor, including the scope and terms of such engagement. The Committee shall have full access to any relevant records of the Company and may also request that any officer or other employee of the Company meet with any members of, or consultants to the Committee as is reasonably necessary for the Committee to effectively perform its duties and responsibilities.
The Committee shall report periodically to the Board (i) following meetings of the Committee, (ii) with respect to such other matters as are relevant to the discharge of the Committee's duties and responsibilities, (iii) with respect to such recommendations as the Committee may deem appropriate from time to time, and (iv) the Committee's conclusions with respect to the independent auditor. The report can be a written or an oral report by a member of the Committee elected by the Committee to give such report to the Board. In addition, the Committee shall also prepare an annual report of the Committee for inclusion in the annual proxy statement, in accordance with applicable rules and regulations.
Limitation of Committee's Role
While the Committee has the duties and responsibilities set forth in this Charter, it is not the duty of the Committee to prepare financial statements, plan or conduct audits or to determine that the Company's financial statements and disclosures are complete and accurate and in accordance with GAAP. These are the responsibilities of management and the independent auditor. The Committee's role is one of oversight. The Committee recognizes that Company management and the independent auditor have more time, knowledge and detailed information about the Company than do Committee members. Consequently, in carrying out its oversight responsibilities, the Committee is not providing any expert or special assurance as to the Company's financial statements or any professional certification as to the independent auditor's work.