Charter for the Audit Committee of the Board of Directors of TIBCO Software Inc.
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The purpose of the Audit Committee (the "Committee") of the Board of Directors (the "Board") of TIBCO Software Inc. (the "Company") shall be to:
Provide oversight of (i) the Company's accounting and financial reporting process, (ii) the Company's systems of internal controls over financial reporting, (iii) the audits and integrity of the financial statements, (iv) the independent auditors' qualifications, independence and performance and (v) the performance of the Company's internal audit function.
Assist the Board in ensuring the Company's compliance with legal and regulatory requirements in connection with the Company's financial reporting process.
Provide to the Board such additional information and materials as it may deem necessary to make the Board aware of significant financial matters that require the attention of the Board.
The Committee has the authority to undertake the specific duties and responsibilities listed below and will have the authority to undertake such other specific duties as the Board may from time to time prescribe.
The Committee shall be comprised of at least three directors determined by the Board to satisfy the requirements, including the independence and financial literacy and experience requirements, of the NASDAQ Stock Market, Inc. and applicable federal law.
Each member of the Committee shall be appointed by and serve at the discretion of the Board.
The designation of any member as an "audit committee financial expert" shall be made by the full Board.
III. RESPONSIBILITIES AND AUTHORITY
The responsibilities of the Committee include:
Providing oversight of the activities of Company management, including without limitation, the chief financial officer and principal accounting officer and controller, and the independent auditors with respect to the Company's financial reporting and compliance process.
Reviewing and discussing with management, the internal auditor and the Company's independent auditors on a continuing basis the adequacy and effectiveness of the Company's system of internal controls over financial reporting as well as the Company's disclosure controls and procedures.
Appointing, compensating, terminating and overseeing the Company's independent auditors for the purpose of preparing or issuing an audit report or performing other audit, review or attest services for the Company. The independent auditor will report directly to the Committee.
Resolving disagreements between management and the independent auditors regarding financial controls or reporting.
Reviewing the independent auditors' proposed audit scope and approach and pre-approving all audit and non-audit services provided to the Company by the Company's independent auditors either (i) before the auditors are engaged by the Company for such services or (ii) pursuant to pre-approval policies and procedures established by the Committee, provided that the Committee is informed of each specific service.
Requesting and receiving from the independent auditors on a periodic basis a statement delineating all relationships between the auditor and the Company which may adversely impact the auditors' independence and discussing with the independent auditor any such disclosed relationships or services.
Overseeing the independence of the Company's outside auditors.
Reviewing the effectiveness and performance of the independent auditors on an annual basis.
Obtaining and reviewing on a periodic basis a report from the independent auditors describing the auditors' internal quality-control procedures, any material issues raised by the most recent internal quality-control review or peer review 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 such issues.
Reviewing the experience and qualifications of the senior members of the independent auditor team(s), in particular, the lead audit and reviewing partners and overseeing the rotation of the independent auditor's lead audit and concurring partners and the rotation of other audit partners, with applicable time-out periods, in accordance with applicable law.
Reviewing before release the unaudited quarterly and audited annual operating results in the Company's quarterly and annual earnings releases.
Reviewing with management, before filing with the SEC, the audited financial statements and Management's Discussion and Analysis included in the Company's Annual Report on Form 10-K, and recommending to the Board following such review, if appropriate, that the audited financial statements be included in such Annual Report on Form 10-K.
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 and disagreements with management and any other matters required to be discussed by generally accepted auditing standards and other legal or regulatory requirements.
Reviewing and discussing with the independent auditors the Company's critical accounting policies and practices, alternative treatments of financial information within generally accepted accounting principles, and other material written communications between the independent auditors and management.
Reviewing with management, before filing with the SEC, the interim financial statements and Management's Discussion and Analysis included in the Company's Quarterly Reports on Form 10-Q and directing the Company's independent auditors to review such interim financial statements before filing with the SEC, using professional standards and procedures for conducting such reviews, and discussing with the independent auditors any matters required to be discussed by generally accepted auditing standards and other legal or regulatory requirements.
Following completion of the annual audit, reviewing any significant difficulties encountered during the course of the audit, including suggestions for improvements provided to management by the independent auditors.
Reviewing, in conjunction with counsel, any legal matters that could have a significant impact on the Company's financial statements.
Overseeing the management of risks associated with the Company's financial reporting, accounting and auditing matters.
Reviewing and overseeing all related party transactions that are required to be disclosed by applicable law or that are required to be disclosed in the Company's financial statements or SEC filings.
Reviewing, approving and overseeing compliance with the Company's code of ethics for its senior financial officers.
Reviewing management's monitoring of compliance with the Company's code of conduct for all directors, officers and employees.
Reviewing management's monitoring of compliance with the Company's standards of business conduct and with the Foreign Corrupt Practices Act.
If necessary, instituting special investigations and, as appropriate, hiring special counsel or experts to assist in such investigation(s), with full access to all books, records, facilities and personnel of the Company.
Periodically reviewing and evaluating, as appropriate, the performance of the Committee.
Reviewing and assessing the adequacy of this Charter on an annual basis, and making recommendations to the Board with respect to any proposed changes.
Providing a report to be included in the Company's annual proxy statement.
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 and reviewing such procedures.
Appointing, evaluating, replacing or dismissing the head of the internal audit function who shall report to the Committee.
Providing oversight of the internal audit function's objectives, responsibilities, resources, activities and effectiveness.
Reviewing any significant reports from the internal audit function.
Reviewing on an annual basis the internal audit function of the Company, including the proposed audit plans and the internal auditor's independence.
IV. MEETINGS AND PROCEDURES
The members of the Committee shall meet at least quarterly. However, the Committee may establish its own schedule, which it will provide to the Board in advance.
The Committee shall meet separately with each of (i) the independent auditors, as well as (ii) the members of the Company's management, including without limitation the chief financial officer and principal accounting officer and controller, as it deems appropriate, but at least once annually, in order to fulfill the responsibilities of the Committee.
The Committee shall have the authority to appoint, compensate, terminate and oversee the work of any independent auditor, independent legal counsel or other advisors to assist the Committee as it deems necessary in carrying out its duties, for which the Committee shall have sole and absolute authority. The Company will provide the Committee with appropriate funding, as determined by the Committee, to pay the independent auditor, independent legal counsel or any outside advisors hired by the Committee and any administrative expenses of the Committee that are necessary or appropriate in carrying out its activities.
The Committee is authorized to request that any employee of the Company or the Company's legal counsel or independent auditors meet with any member of, or advisor to, the Committee.
The Committee shall maintain written minutes of its meetings, which minutes shall be filed with the minutes of the meetings of the Board.
The Committee will provide reports to the Board from time to time as appropriate, regarding recommendations of the Committee submitted to the Board for action, and copies of the written minutes of its meetings.
VII. DELEGATION OF AUTHORITY
The Committee may delegate to one or more designated members of the Committee the authority to pre-approve audit and permissible non-audit services, provided such pre-approval decision is presented to the full Committee at its scheduled meetings.
The Committee may form and delegate its authority to subcommittees or to the Chairman of the Committee when it deems appropriate and in the best interests of the Company, provided that such delegation is not in violation of applicable law or the rules and regulations applicable to companies with securities quoted on the NASDAQ Global Select Market.
Members of the Committee shall receive such fees for their service as Committee members, if any, as may be determined by the Board in its sole discretion. Such fees may include retainers or per meeting fees. Fees may be paid in such form of consideration as is determined by the Board, in accordance with the applicable rules of the NASDAQ Stock Market, Inc. and the Securities and Exchange Commission.
Members of the Committee may not receive any compensation from the Company, except the compensation that they receive for service as a member of the Board or any committee thereof.