Audit Committee Charter
I. Composition of the Committee:
The Audit Committee (the “Committee”) of the Board of Directors (the “Board”) of Dynacq Healthcare, Inc. (hereinafter referred to as the “Company”) shall be comprised of at least three directors, each of whom is (i) “independent” as defined under Rule 5605(a)(2) of the NASDAQ Stock Market Listing Rules, (ii) meets the criteria for independence set forth in Rule 10A-3(b)(1) under the Securities Exchange Act of 1934 (the “Exchange Act”), (iii) has not participated in the preparation of the financial statements of the Company at any time during the past three years, and (iv) is able to read and understand fundamental financial statements, including a company’s balance sheet, income statement, and cash flow statement. In addition, the Committee shall have at least one member who has past employment experience in finance or accounting, requisite professional certification in accounting, or other comparable experience or background which results in the member’s qualification as an “audit committee financial expert” as defined by the rules promulgated by the Securities and Exchange Commission (the “Commission”).
No director may serve as a member of the Committee if such director serves on the audit committees of more than two other public companies unless the Board determines that such simultaneous service would not impair the ability of such director to effectively serve on the Committee, and discloses this determination in the Company’s annual proxy statement. No member of the Committee may receive, directly or indirectly, any consulting, advisory, or other compensatory fee from the Company other than (i) director’s fees, which in the case of the chairperson may be greater than the director’s fees per meeting paid to other directors; (ii) a pension or other deferred compensation for prior service that is not contingent on future service; and (iii) any other regular benefits that other directors receive. Members shall be appointed by the Board and shall serve at the pleasure of the Board and for such term or terms as the Board may determine.
The Audit Committee shall designate one member of the Audit Committee as its chairperson, which person shall be a qualified audit committee financial expert. In the event of a tie vote on any issue, the chairperson’s vote shall decide the issue.
II. Purposes of the Committee:
The purposes of the Committee are to:
- assist Board oversight of (i) the integrity of the Company’s financial statements, (ii) the Company’s compliance with legal and regulatory requirements, (iii) the independent auditors’ qualifications and independence, and (iv) the performance of the independent auditors and the Company’s internal audit function;
- prepare the report required to be prepared by the Committee pursuant to the rules of the Commission for inclusion in the Company’s annual proxy statement; and
- oversee the accounting and financial reporting processes of the Company and the audits of the financial statements of the Company.
The function of the Committee is oversight. The management of the Company is responsible for the preparation, presentation and integrity of the Company’s financial statements. Management and the internal auditing department are responsible for maintaining appropriate accounting and financial reporting principles and policies and internal controls and procedures that provide for compliance with accounting standards and applicable laws and regulations. The independent auditors are responsible for planning and carrying out a proper audit of the Company’s annual financial statements, reviews of the Company’s quarterly financial statements prior to the filing of each quarterly report on Form 10-Q, and other procedures. In fulfilling their responsibilities hereunder, it is recognized that members of the Committee are not full-time employees of the Company and are not, and do not represent themselves to be, performing the functions of auditors or accountants. As such, it is not the duty or responsibility of the Committee or its members to conduct “field work” or other types of auditing or accounting reviews or procedures or to set auditor independence standards.
The independent auditors for the Company are accountable to the Committee, as representatives of the stockholders. The Committee is directly responsible for the appointment, compensation and oversight of the work of the independent auditors (including resolving disagreements between management and the independent auditors regarding financial reporting). The Committee has the authority and responsibility to appoint, retain and terminate the Company’s independent auditors, subject to stockholder ratification. The Company’s independent auditors shall report directly to the Committee.
The independent auditors shall submit to the Committee annually a formal written statement in accordance with Statement on Auditing Standards No. 62 (the “Auditors’ Statement”) describing: the auditors’ internal quality-control procedures; any material issues raised by the most recent internal quality-control review or peer review of the auditors, 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 auditors, and any steps taken to deal with any such issues; and (to assess the auditors’ independence) all relationships between the independent auditors and the Company, including each non-audit service provided to the Company and at least the matters set forth in Independence Standards Board No. 1.
The independent auditors shall submit to the Committee annually a formal written statement of the fees billed in each of the last two fiscal years for each of the following categories of services rendered by the independent auditors: (i) the audit of the Company’s annual financial statements and the reviews of the financial statements included in the Company’s Quarterly Reports on Form 10-Q or services that are normally provided by the independent auditors in connection with statutory and regulatory filings or engagements; (ii) assurance and related services, not included in clause (i) that are reasonably related to the performance of the audit or review of the Company’s financial statements, in the aggregate and by each service; (iii) tax compliance, tax advice and tax planning services, in the aggregate and by each service; and (iv) all other products and services rendered by the independent auditors, in the aggregate and by each service.
III. Meetings of the Committee:
The Committee shall meet once every fiscal quarter, or more frequently if needed to address matters on its agenda, to discuss with management the annual audited financial statements and quarterly financial statements, as applicable. The Committee should meet separately at least quarterly with management, the director of the internal auditing department and the independent auditors to discuss any matters that the Committee or any of these persons or firms believes should be discussed privately. The Committee may request any officer or employee of the Company or the Company’s outside counsel or independent auditors to attend a meeting of the Committee or to meet with any members of, or consultants to, the Committee. The Committee shall meet in executive session with the independent auditors and chief financial officer at least twice a year, and more frequently as necessary or appropriate, in conjunction with regularly scheduled meetings of the Board at regularly scheduled times and places determined by the Committee chairperson. Members of the Committee may participate in a meeting of the Committee by means of conference call or similar communications equipment by means of which all persons participating in the meeting can hear each other. The Committee shall create an agenda for their meetings for the ensuing year, or review and approve the agenda submitted by the internal auditors.
IV. Duties and Powers of the Committee:
To carry out its purposes, the Committee shall have the following duties and powers, in addition to such other duties and powers as may be assigned to it by the Company’s Certificate or Incorporation or Bylaws or by the Board:
1. with respect to the independent auditors,
(i) to appoint, replace and terminate the independent auditors, subject to stockholder ratification, including sole authority to approve all audit engagement fees and terms and to review with management the significance of bidding out audit services;
(ii) to pre-approve, or to adopt appropriate procedures to pre-approve, all audit and non-audit services to be provided by the independent auditors, including tax services, before the services are rendered, and to consider whether the outside auditors’ provision of non-audit services to the Company is compatible with maintaining the independence of the outside auditors;
(iii) to review all critical accounting policies and practices used by the Company and any alternative treatments of financial information within GAAP that the independent auditors have discussed with management, the ramifications of each alternative and the treatment preferred by the Company;
(iv) to review all material written communications between the independent auditors and management, including any management letter or schedule of unadjusted differences;
(v) to ensure that the independent auditors prepare and deliver annually an Auditors’ Statement (it being understood that the independent auditors are responsible for the accuracy and completeness of this Statement), and to discuss with management and the independent auditors the matters discussed therein including any relationships or services disclosed in the Statement that may impact the quality of audit services or the objectivity and independence of the Company’s independent auditors;
(vi) to review with management and the independent auditors, prior to the filing of the Company’s audit report with the Commission, the Company’s annual financial statements and related footnotes, the independent auditors’ audit of the financial statements and their report thereon, the independent auditors’ judgments about the quality of the Company’s accounting principles as applied in its financial reporting, any significant changes required in the independent auditors’ audit plan, and any serious difficulties or disputes with management encountered during the audit;
(vii) to review and evaluate the qualifications, performance and independence of the lead partner of the independent auditors;
(viii) to discuss with management the timing and process for implementing the rotation of the lead audit partner, the concurring partner and any other active audit engagement team partner and consider whether there should be a regular rotation of the audit firm itself;
(ix) to take into account the opinions of management and the Company’s internal auditors in assessing the independent auditors’ qualifications, performance and independence; and
(x) to instruct the independent auditors that the independent auditors are ultimately accountable to the Committee, as representatives of the stockholders;
2. with respect to the internal auditing department,
(i) to review and evaluate the qualifications, performance and function of the internal auditing department;
(ii) to review the appointment, replacement, reassignment or dismissal of the director of the internal auditing department; and
(iii) to advise the director of the internal auditing department that he or she is expected to provide to the Committee summaries of and, as appropriate, the significant reports to management prepared by the internal auditing department and management’s responses thereto;
3. with respect to financial reporting principles and policies and internal audit controls and procedures,
(i) to advise management, the internal auditing department and the independent auditors that they are expected to provide to the Committee a timely analysis of significant financial reporting issues and practices;
(ii) to consider any reports or communications (and management’s and/or the internal audit department’s responses thereto) submitted to the Committee by the independent auditors required by or referred to in Statement of Auditing Standards No. 114, as it may be modified or supplemented, including reports and communications related to:
• deficiencies noted in the audit in the design or operation of internal controls;
• consideration of fraud in a financial statement audit;
• detection of illegal acts;
• the independent auditors’ responsibility under generally accepted auditing standards;
• any restriction on audit scope;
• significant accounting policies;
• significant issues discussed with the national office respecting auditing or accounting issues presented by the engagement;
• management judgments and accounting estimates;
• any accounting adjustments arising from the audit that were noted or proposed by the auditors but were passed (as immaterial or otherwise);
• the responsibility of the independent auditors for other information in documents containing audited financial statements;
• disagreements with management;
• consultation by management with other accountants;
• major issues discussed with management prior to retention of the independent auditors;
• difficulties encountered with management in performing the audit;
• the independent auditors’ judgments about the quality of the Company’s accounting principles;
• reviews of interim financial information conducted by the independent auditors; and
• the responsibilities, budget and staffing of the Company’s internal audit function;
(iii) to meet with management, the independent auditors and, if appropriate, the director of the internal auditing department:
• to discuss the annual audit scope and plan of the internal auditors and the independent auditors, addressing the coordination of audit efforts to assure the completeness of coverage, reduction of redundant efforts and effective use of audit resources;
• to discuss the annual audited financial statements and quarterly financial statements, including the Company’s disclosures under “Management’s Discussion and Analysis of Financial Condition and Results of Operations”;
• to discuss any significant matters arising from any audit, including any audit problems or difficulties, whether raised by management, the internal auditing department or the independent auditors, relating to the Company’s financial statements;
• to discuss any difficulties the independent auditors encountered in the course of the audit, including any restrictions on the scope of its work or access to required information and any significant disagreements with management;
• to discuss any “management” or “internal control” letter issued, or proposed to be issued, by the independent auditors to the Company;
• to review the form of opinion the independent auditors propose to render to the Board and stockholders; and
• to discuss, as appropriate: (a) any major issues regarding accounting principles and financial statement presentations, including any significant changes in the Company’s selection or application of accounting principles, and major issues as to the adequacy of the Company’s internal controls and any special audit steps adopted in light of material control deficiencies; (b) analyses prepared by management and/or the independent auditors setting forth significant financial reporting issues and judgments made in connection with the preparation of the financial statements, including analyses of the effects of alternative GAAP methods on the financial statements; (c) the effect of regulatory and accounting initiatives, as well as other unique transactions and financial relationships, on the financial statements of the Company; (d) the policies and procedures with respect to officers’ expense accounts and perquisites, including excess benefit transactions and any review of these areas by the internal or independent auditors; and (e) the sources of support and revenue of the Company from a subjective as well as an objective standpoint;
(iv) to inquire of the Company’s chief executive officer and chief financial officer as to the existence of any significant deficiencies in the design or operation of internal controls, including computerized information system controls and security, that could adversely affect the Company’s ability to record, process, summarize and report financial data, any material weaknesses in internal controls, and any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls;
(v) to discuss guidelines and policies governing the process by which senior management of the Company and the relevant departments of the Company assess and manage the Company’s exposure to risk, to discuss the Company’s major financial risk exposures and the steps management has taken to monitor and control such exposures and periodically to review compliance with such steps;
(vi) to obtain from the independent auditors assurance that the audit was conducted in a manner consistent with Section 10A of the Exchange Act, which sets forth certain procedures to be followed in any audit of financial statements required under that act;
(vii) to discuss with the Company’s counsel any significant legal, compliance or regulatory matters that may have a material effect on the financial statements or the Company’s business, financial statements or compliance policies, including material notices to or inquiries received from governmental agencies;
(viii) to discuss earnings press releases;
(ix) to discuss the types of financial information and earnings guidance provided, and the types of presentations made, to analysts and rating agencies;
(x) to periodically review the Company’s Code of Ethics to ensure that it is adequate and up-to-date and review with Company counsel the results of the Committee’s review of the monitoring of compliance with the Code of Ethics;
(xi) to develop, oversee compliance procedures for, and periodically review the Company’s Whistleblower Policy for the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls or auditing matters and for the confidential, anonymous submission by Company employees or outside parties of concerns regarding questionable accounting or auditing matters in accordance with such policy, to review any submissions received, and to report to the Board any violation of that policy that has been determined by the Committee;
(xii) to establish hiring policies for employees or former employees of the independent auditors; and
(xiii) to review and consider approval of related party transactions of the Company.
4. with respect to reporting and recommendations,
(i) to prepare any report or other disclosures, including any recommendation of the Committee, required by the rules of the Commission to be included in the Company’s annual proxy statement;
(ii) to review and reassess the adequacy of this Charter at least annually, consider changes that are necessary as a result of new laws or regulations, and recommend any changes to the full Board;
(iii) to report its activities to the full Board on a regular basis and to make such recommendations with respect to the above and other matters as the Committee may deem necessary or appropriate; and
(iv) to prepare and review with the Board an annual performance evaluation of the Committee, conducted in such manner as the Committee deems appropriate, which evaluation must compare the performance of the Committee with the requirements of this charter. The report to the Board may be an oral report by the chairperson or any other member of the Committee designated by the Committee to make this report.
V. Delegation to Subcommittee:
The Committee may, in its discretion, delegate all or a portion of its duties and responsibilities to a subcommittee of the Committee consisting of one or more members. If the Committee delegates to one or more of its members the authority to pre-approve any audit or non-audit services to be performed by the independent auditors, any such approvals must be presented to the Committee at its next scheduled meeting.
VI. Resources and Authority of the Committee:
The Committee shall have the resources and authority appropriate to discharge its duties and responsibilities, including the authority to select, retain, terminate, and approve the fees and other retention terms of special or independent counsel, accountants or other experts and advisors, as it deems necessary or appropriate, without seeking approval of the Board or management.
Approved and adopted by the Board of Directors on November 16, 2010