Investor Relations

audit committee charter

 

As adopted on February 12, 2013

I.         PURPOSE

The purpose of the Audit Committee (the “Committee”) of the Board of Directors (the “Board”) of Marin Software Incorporated (the “Company”) is to assist Board oversight of:

  • the integrity of the Company’s accounting and financial reporting processes and the audit of the Company’s financial statements;
  • the qualifications and independence of the Company’s independent auditors (the “Independent Auditors”);
  • the performance of the Independent Auditors and the Company’s internal audit function.
  • the periodic reviews by the Independent Auditors and Company management of the adequacy of the Company’s accounting and financial reporting processes and systems of internal control; and
  • the Company’s policies and processes for risk assessment and compliance with legal, ethical and regulatory requirements.

This charter (the "Charter") sets forth the authority and responsibility of the Committee. In fulfilling its responsibilities, it is recognized that members of the Committee are neither employees of the Company nor professional accountants or auditors. The functions of the Committee are not intended to duplicate or substitute for the activities of management and the Independent Auditors, and the Committee members cannot provide any expert or special assurance as to the Company's financial statements, internal controls or management of risk or any professional certifications as to the work of the Independent Auditors.

It is not the duty of the Committee to plan or conduct audits or to determine that the Company's financial statements are complete and accurate and are in accordance with generally accepted accounting principles in the United States. This is the responsibility of management and the Independent Auditors. In addition, the Company's management is responsible for managing its risk function and for reporting on its processes and assessments with respect to the Company's management of risk.

Each member of the Committee can rely on (a) the integrity of those persons and organizations within and outside of the Company from which it receives information, (b) the accuracy of the financial and other information provided to the Committee by such persons or organizations absent actual knowledge to the contrary (which shall be promptly reported to the Board) and (c) representations made by management as to any audit and non-audit services provided by the Independent Auditors.

The Board has formed the Committee to assist the Board in directing the Company's affairs and this Charter has been adopted in furtherance of this purpose. While this Charter should be interpreted in the context of all applicable laws, regulations and listing requirements, as well as in the context of the Company's Certificate of Incorporation and Bylaws, it is not intended to establish by its own force any legally binding obligations. 

II.       MEMBERSHIP

The Committee will consist of at least three Board members, each of who will:

  • be an “independent director” as defined under the applicable rules, regulations and listing requirements of the New York Stock Exchange, as amended from time to time (the “Exchange Rules”);
  • be “independent” as defined in Section 10A(m) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Rule 10A‑3 and any other rules and regulations promulgated by the Securities and Exchange Commission (“Commission”) under the Exchange Act (the “Commission Rules”);
  • be able to read and understand fundamental financial statements and meet the financial sophistication and experience requirements of the Exchange Act, the Commission Rules and the Exchange Rules;
  • be free from any relationship that, in the opinion of the Board, would interfere with the exercise of independent judgment; and
  • meet any other requirements imposed by applicable law, regulations or rules, subject to any applicable exemptions and transition provisions.

In addition, at least one member of the Committee will have prior experience in accounting, financial management or financial oversight, as required by the Exchange Rules, and be an “audit committee financial expert” as defined in Item 407(d)(5)(ii) of Regulation S‑K promulgated by the Commission.

Committee members will be appointed by, and will serve at the discretion of, the Board.  The Board may appoint a chairperson of the Committee (the “Chair”) or, if the Board does not appoint a Chair, the Committee members may by majority vote designate a Chair.  The Chair will set the agenda for and conduct the proceedings of Committee meetings.

III.     RESPONSIBILITIES AND DUTIES

The principal responsibilities and duties of the Committee are set forth below. The Committee may supplement them as appropriate and may establish policies and procedures from time to time that it deems necessary or advisable in fulfilling its responsibilities.

The Committee will:

A.  Financial Statements and Disclosures

  1. Review and discuss earnings press releases, as well as financial information and earnings guidance provided to analysts and ratings agencies; provided, however, that such discussion may be done generally (consisting of the types of information to be disclosed and presentations to be made).
  2. Review the Company’s quarterly and annual financial statements, including the Company’s specific disclosures under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and conduct an annual review of an independent auditor’s report describing the firm’s internal quality‑control procedures; any material issues raised 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 (to assess the auditor’s independence) all relationships between the Independent Auditor and the Company.
  3. In connection with the Committee’s review of the annual and quarterly financial statements, the Committee shall discuss with management and the Independent Auditors:
  • the financial statements and the results of the Independent Auditors’ annual audit of the financial statements;
  • as it relates to the quarterly financial statements, the results of the Independent Auditors’ Public Company Accounting Oversight Board (the “PCAOB”) Statement on Auditing Standards (“SAS”) No. 100 or similar, review;
  • any items required to be communicated by the Independent Auditors in accordance with the applicable requirements of the SAS No. 61, as amended.  These discussions should include the Independent Auditors’ judgments about the quality and appropriateness of the Company’s accounting principles, the reasonableness of significant judgments, the clarity of the disclosures in the Company’s financial statements and any significant difficulties encountered during the course of the audit, including any restrictions on the scope of work or access to required information;
  • the Company’s selection, application and disclosure of critical accounting policies and practices, as well as the effect of regulatory and accounting initiatives, including off-balance sheet structures, on the Company’s financial statements;
    • significant issues, events and transactions and any significant changes regarding accounting principles, practices, policies, judgments or estimates; and
    • any disagreements between the Company’s management and the Independent Auditors regarding financial reporting.
  1. Recommend to the Board whether the annual financial statements should be included in the Company’s Annual Report on Form 10‑K.

B.  Internal Controls

  1. Periodically discuss with the Company’s principal accounting officer and any disclosure committee that may be established by the Company, the function of the Company’s disclosure controls and procedures.  Discuss with the Company’s Chief Executive Officer and Chief Financial Officer their conclusions regarding the effectiveness of the Company’s disclosure controls and procedures.
  2. Review and discuss with the Independent Auditors and the Company’s management their periodic reviews of the adequacy of the Company’s accounting and financial reporting processes and systems of internal control, including any significant deficiencies and material weaknesses in their design or operation.
  3. Review any reported fraud involving management or any employee of the Company with a significant role in the Company’s internal controls over financial reporting.
  4. Discuss any comments or recommendations of the Independent Auditors outlined in their annual management letter or internal control reports.  If appropriate, approve a schedule for implementing any recommended changes and monitor compliance with the schedule.
  5. Periodically, out of the presence of the Company’s management, consult with the Independent Auditors about internal controls, the fullness and accuracy of the Company’s financial statements and any other matters that the Committee believes should be discussed privately.
  6. Periodically meet separately with management and personnel responsible for the internal audit function.
  7. Review with management the Company’s major financial risk exposures and the steps management has taken to monitor such exposures, including the Company’s procedures and any related policies with respect to risk assessment and risk management.
  8. Establish procedures for (i) the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls or auditing matters, and (ii) the confidential anonymous submission by employees of the Company of concerns regarding questionable accounting or auditing matters (the “Whistleblower Policy”).  Oversee the review, status and resolution of any such complaints and submissions that have been received.
  9. Oversee the activities of the internal audit function within the Company.

C.  Independent Auditors

  1. Be directly responsible for the selection, compensation, retention and oversight of the work of the Independent Auditors.  Recommend to the Board the appointment or discharge of the Independent Auditors.  The Independent Auditors will report directly to the Committee.
  2. Review the continuing independence of the Independent Auditors, including:
  • obtaining and reviewing, on an annual basis, a letter from the Independent Auditors describing all relationships between the Independent Auditors and the Company required to be disclosed by applicable requirements of the PCAOB;
  • reviewing and discussing with the Independent Auditors their independence, including the nature and scope of any such relationships; and
  • taking, or recommending that the Board take, appropriate action to oversee the independence of the Independent Auditors, including discontinuing any relationships that the Committee believes compromises the independence of the Independent Auditors.
  1. Approve the Company’s hiring of employees or former employees of the Independent Auditors, as required by regulations and listing standards.
  2. Review the Independent Auditors’ audit planning, scope and staffing.
  3. Approve the fees and other compensation to be paid to, and pre‑approve all audit and non‑audit related services provided by, the Independent Auditors.  The Committee may establish pre‑approval policies and procedures for the engagement of the Independent Auditors to render services to the Company, including without limitation policies that would allow the delegation of pre‑approval authority to one or more members of the Committee; provided that any pre‑approval decision is reported to the Committee at its next scheduled meeting.  The Committee shall receive certain disclosure, documentation and discussion of non-prohibited tax services by the Independent Auditors based on PCAOB Rule 3524,Audit Committee Pre-Approval of Certain Tax Services, or any successor.
  4. Review and discuss with the Independent Auditors the reports delivered to the Committee by the Independent Auditors regarding:
  • critical accounting policies, estimates and practices used;
  • alternative treatments of financial information within generally accepted accounting principles that have been discussed with management, the ramifications of the alternatives, and the treatment preferred by the Independent Auditors; and
  • other material written communications between the Independent Auditors and the Company’s management, such as any management letter or schedule of unadjusted differences.

D. General

  1. On a regular basis, with the Company’s General Counsel, review the status of any legal matters and any material reports or inquiries received from regulators or governmental agencies that could have a significant impact on the Company’s financial statements.
  2. Annually prepare a report to the Company’s stockholders for inclusion in the annual proxy statement as required by the Commission Rules.
  3. Review and approve any proposed transaction between the Company and any related party (other than transactions that are subject to review by the Board as a whole or any other committee of the Board), as defined by applicable law, the Commission Rules and the Exchange Rules.
  4. Review, and recommend that the Board consider and approve, the Company’s Insider Trading Policy, and any changes thereto.
  5. Perform any other activities required by applicable law, rules or regulations, including the Commission Rules and the Exchange Rules, and take such other actions and perform and carry out any other responsibilities and duties delegated to it by the Board or as the Committee deems necessary or appropriate consistent with its purpose.

IV.     POWERS

The Committee, in discharging its responsibilities, may conduct investigations into any matter appropriate to fulfill its responsibilities, with full access to all books, records, documents, facilities and personnel of the Company.  The Committee has the sole authority and right, at the expense of the Company, to retain legal and other consultants, accountants, experts and advisers of its choice to assist the Committee in connection with its functions, including any studies or investigations.  The Committee will have the sole authority to approve the fees and other retention terms of such advisers.  The Company will provide for appropriate funding, as determined by the Committee, for:

  • payment of compensation to any legal and other consultants, accountants, experts and advisers retained by the Committee; and
    • ordinary administrative expenses of the Committee that are necessary and appropriate in carrying out its functions.

V.       MEETINGS, ACTIONS WITHOUT A MEETING AND STAFF

The Committee will meet at least once each quarter or, if deemed appropriate by the Committee, more frequently.  The Chair, in consultation with the other member(s) of the Committee, will set the dates, times and places of such meetings, which may be held via tele‑ or video‑conference.  A quorum of the Committee for the transaction of business will be a majority of its members. The Committee may also act by unanimous written consent in lieu of a meeting in accordance with the Company’s Bylaws.  The Committee may form and delegate authority to subcommittees (consisting of one or more members) when appropriate.  Subject to the requirements of this Charter, applicable law, the Exchange Rules and the Commission Rules, the Committee and the Chair may invite any person it deems appropriate in order to carry out its responsibilities, to attend and participate (in a non‑voting capacity) in all or a portion of any Committee meeting.  The Committee may exclude from all or a portion of its meetings any person it deems appropriate in order to carry out its responsibilities.  The Chair will designate a secretary for each meeting, who need not be a member of the Committee.  The Secretary of the Company will provide the Committee such staff support as it may require. 

VI.     MINUTES AND REPORTS

The Committee will maintain and file written minutes and copies of its actions by written consent.  The Chair will report regularly to the Board on its activities.

VII.   REVIEW OF COMMITTEE COMPOSITION, PERFORMANCE AND CHARTER

The Committee will evaluate the Committee’s composition and performance on an annual basis and submit a report to the Board.  The Committee also will review and reassess the adequacy of this Charter periodically, and recommend to the Board any changes the Committee determines are appropriate.

VIII. PUBLICATION

            The Company shall make this Charter freely available to stockholders on request and, provided that the Company is subject to the periodic reporting requirements of the Exchange Act, shall publish it on the Company’s web site.

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