Attached files
file | filename |
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S-1/A - FORM S-1/A - Peak Resorts Inc | c63465a2sv1za.htm |
EX-1.1 - EX-1.1 - Peak Resorts Inc | c63465a2exv1w1.htm |
EX-5.1 - EX-5.1 - Peak Resorts Inc | c63465a2exv5w1.htm |
EX-23.2 - EX-23.2 - Peak Resorts Inc | c63465a2exv23w2.htm |
EX-10.40 - EX-10.40 - Peak Resorts Inc | c63465a2exv10w40.htm |
Exhibit 99.1
Peak Resorts, Inc.
Audit Committee Charter
I. Purpose
The purpose of this charter is to set forth the objectives, structure, and responsibilities of
the Audit Committee (the Audit Committee) of the Board of Directors (the Board) of Peak
Resorts, Inc. (the Company). The Audit Committee is appointed by the Board to oversee the
accounting and financial reporting processes of the Company and the audits of the Companys
financial statements. In that regard, the Audit Committee assists the Board in monitoring (1) the
integrity of the financial statements of the Company, (2) the independent registered public
accounting firms qualifications and independence, (3) the performance of the Companys internal
audit function, if any, and independent registered public accounting firm, and (4) the Companys
compliance with legal and regulatory requirements.
The Audit Committee shall prepare the report required by the rules of the Securities and
Exchange Commission (the Commission) to be included in the Companys annual proxy statement. The
Audit Committee will also (1) oversee and periodically review the financial reporting process, the
system of internal controls and the audit process, (2) oversee the Companys processes for
monitoring compliance with the Companys policies and Code of Conduct and Business Ethics; and (3)
oversee the Companys efforts to manage its information technology and data security risks.
The Audit Committee shall provide financial management oversight by assisting the Board in
reviewing the Companys investment policies, strategies, transactions and performance, and in
overseeing the Companys asset/liability management, capital and financial resources.
II. Committee Membership
The Audit Committee shall consist of no fewer than three members, each of whom shall be a
member of the Board. Each member of the Audit Committee shall meet the independence and experience
requirements of The NASDAQ Stock Market, Inc. (Nasdaq) Marketplace Rules and the Securities
Exchange Act of 1934 (the Exchange Act). All members of the Audit Committee shall be able to read
and understand fundamental financial statements and otherwise meet the financial sophistication
standards established by Nasdaq. No member of the Audit Committee shall have participated in the
preparation of the financial statements of the Company or any subsidiary in the past three years.
At least one member of the Audit Committee shall be an audit committee financial expert as
defined by the Commission and shall have past employment experience in finance or accounting,
requisite professional certification in accounting, or any other comparable experience or
background which results in the individuals financial sophistication, including being or having
been a chief executive officer, chief financial officer or other senior officer with financial
oversight responsibilities. However, one director who does not meet the Nasdaq definition of
independence, but who meets the criteria set forth in Section 10A(m)(3) under the Exchange Act and
the rules thereunder, and who is not a current officer or employee or a family member of such
person, may be appointed to the Audit Committee to serve for no more than two years, if the Board,
under exceptional and limited
circumstances, determines that such individuals membership is required by the best interests
of the Company and its shareholders. Such person must satisfy the independence requirements set
forth in Section 10A(m)(3) of the Exchange Act, and may not chair the Audit Committee. The use of
this exceptional and limited circumstances exception, as well as the nature of the individuals
relationship to the Company and the basis for the boards determination, shall be disclosed in the
annual proxy statement.
In addition, if an audit committee member ceases to be independent for reasons outside the
members reasonable control, his or her membership on the audit committee may continue until the
earlier of the Companys next annual shareholders meeting or one year from the occurrence of the
event that caused the failure to qualify as independent. If the Company is not already relying on
this provision, and falls out of compliance with the requirements regarding audit committee
composition due to a single vacancy on the audit committee, then the Company will have until the
earlier of the next annual shareholders meeting or one year from the occurrence of the event that
caused the failure to comply with this requirement; provided, however, that if the annual
shareholders meeting occurs no later than 180 days following the event that caused the failure to
comply with the independence requirement, the Company shall instead have 180 days from such event
to regain compliance. The Company shall provide notice to Nasdaq immediately upon learning of the
event or circumstance that caused the non- compliance, if it expects to rely on either of these
provisions for a cure period.
The members of the Audit Committee shall be appointed annually and may be removed and replaced
by the Board at any time with or without cause. The Board may designate one of the members as the
Chairman of the Audit Committee, or if the Board does not make such designation, the members shall
elect a Chairman from among themselves.
III. Meetings
The Audit Committee shall meet as often as it determines necessary but not less frequently
than quarterly. The Audit Committee may meet in person or telephonically. The Audit Committee shall
meet periodically in separate executive sessions with management, the internal auditors, if any,
and the independent registered public accounting firm, and have such other direct and independent
interaction with such persons from time to time, as the members of the Audit Committee deem
appropriate. The Audit Committee may request any officer or employee of the Company or the
Companys outside counsel or independent registered public accounting firm to attend a meeting of
the Committee or to meet with any members of, or consultants to, the Committee. A majority of the
entire Committee shall constitute a quorum. The Committee shall act on the affirmative vote of a
majority of members present at a meeting at which a quorum is present. The Audit Committee shall
keep minutes of its proceedings, which shall be duly filed in the Companys records. Any action
required or permitted to be taken by the Audit Committee may be taken without a meeting, if all of
the members of the Audit Committee consent to the action in writing and the written consent is
filed with the minutes of the proceedings of the Audit Committee.
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IV. Committee Authority and responsibilities
The Audit Committee shall have the sole authority to appoint, determine funding for, retain
and oversee the independent registered public accounting firm (subject, if applicable, to
shareholder ratification). The Audit Committee shall be directly responsible for the appointment,
compensation, retention and oversight of the work of the independent registered public accounting
firm (including resolution of disagreements between management and the independent registered
public accounting firm regarding financial reporting) for the purpose of preparing or issuing an
audit report or performing other audit, review or attest services for the Company or related work.
The independent registered public accounting firm shall report directly to the Audit Committee.
The Audit Committee shall pre-approve all auditing services, internal control-related services
and permitted non-audit services (including the fees and terms thereof) to be performed for the
Company by its independent registered public accounting firm, subject to the de minimis exception
for non-audit services that are approved by the Audit Committee prior to the completion of the
audit. The Audit Committee may delegate to one or more members the authority to grant pre-approvals
of audit and permitted non-audit services, provided that such decisions to grant pre-approvals
shall be presented to the full Audit Committee at its next scheduled meeting.
It is the Audit Committees responsibility to ensure its receipt from the independent
registered public accounting firm of a formal written statement delineating all relationships
between the independent registered public accounting firm and the Company, consistent with Rule
3526, Communication with Audit Committees Concerning Independence. In addition, it is the Audit
Committees responsibility to actively engage in a dialogue with the independent registered public
accounting firm with respect to any disclosed relationships or services that may impact the
objectivity and independence of the independent registered public accounting firm and for taking,
or recommending that the full Board take, appropriate action to oversee the independence of the
outside auditor.
The Audit Committee shall have the authority, to the extent it deems necessary or appropriate,
to engage and determine funding for independent legal, accounting or other advisors. The Company
shall provide for appropriate funding, as determined by the Audit Committee, for payment of
compensation to the independent registered public accounting firm for the purpose of preparing or
issuing an audit report or performing other audit, review or attest services for the Company and to
any advisors employed by the Audit Committee, as well as funding for the payment of ordinary
administrative expenses of the Audit Committee that are necessary or appropriate in carrying out
its duties. The Audit Committee may form and delegate authority to subcommittees consisting of one
or more members when appropriate.
The Audit Committee shall make regular reports to the Board. The Audit Committee shall perform
an annual self-evaluation and shall also annually review and reassess the adequacy of this Charter,
recommending any proposed changes to the Board for approval.
Any communications between the Audit Committee and legal counsel in the course of obtaining
legal advice will be considered privileged communications of the Company and the
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Audit Committee will take all necessary steps to preserve the privileged nature of these
communications.
V. Financial Statement and Disclosure Matters.
The Audit Committee, to the extent it deems necessary or appropriate, shall:
(1) Review and discuss with management and the independent registered public accounting firm
the annual audited financial statements, including disclosures made in managements
discussion and analysis, and recommend to the Board whether the audited financial statements
should be included in the Companys Form 10-K.
(2) Review and discuss with management and the independent registered public accounting firm
the Companys quarterly financial statements prior to the filing of its Form 10-Q, including
the results of the independent registered public accounting firms review of the quarterly
financial statements.
(3) Discuss with management and the independent registered public accounting firm
significant financial reporting issues and judgments made in connection with the preparation
of the Companys financial statements, including any significant changes in the Companys
selection or application of accounting principles, any major issues as to the adequacy of
the Companys internal controls, any special steps adopted in light of material control
deficiencies, and the adequacy of disclosures about changes in internal control over
financial reporting.
(4) Review and discuss with management (including the senior internal audit executive, if
any) and the independent registered public accounting firm the Companys internal controls
report and the independent registered public accounting firms attestation of the report
prior to the filing of the Companys Form 10-K.
(5) Review and discuss quarterly reports from the independent registered public accounting
firm on:
(a) All critical accounting policies and practices to be used;
(b) All material alternative treatments of financial information within generally
accepted accounting principles that have been discussed with management,
ramifications of the use of such alternative disclosures and treatments, and the
treatment preferred by the independent registered public accounting firm, and
(c) Other material written communications between the independent registered public
accounting firm and management, such as any management letter or schedule of
unadjusted differences.
(6) Discuss with management the Companys earnings press releases, including the use of pro
forma or adjusted non-GAAP information, as well as financial information and earnings
guidance provided to analysts and rating agencies. Such discussion may be
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done generally (consisting of discussing the types of information to be disclosed and the
types of presentations to be made).
(7) Discuss with management and the independent registered public accounting firm the effect
of regulatory and accounting initiatives as well as off-balance sheet structures on the
Companys financial statements.
(8) Discuss with management the Companys major financial risk exposures and the steps
management has taken to monitor and control such exposures, including the Companys risk
assessment and risk management policies.
(9) Discuss with the independent registered public accounting firm the matters required to
be discussed by Statement on Auditing Standards No.61, as amended, as adopted by the Public
Company Accounting Oversight Board in Rule 3200T.
(10) Discuss with the independent registered public accounting firm any audit differences
that were noted or proposed by the independent registered public accounting firm but for
which the Companys financial statements were not adjusted (as immaterial or otherwise). The
Audit Committee will resolve any disagreements between the independent registered public
accounting firm and management regarding financial reporting.
(11) Review disclosures made to the Audit Committee by the Companys 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 Companys internal controls.
(12) Ensure that a public announcement of the Companys determination of the Companys
substantial doubt about its ability to continue as a going concern, or receipt of an audit
opinion that contains a going concern qualification is made promptly.
(13) Prepare the Audit Committee report that the Securities and Exchange Commission requires
in the Companys annual proxy statement and review the matters described in such report.
(14) Obtain quarterly assurances from the senior internal auditing executive, if any, and
management that the system of internal controls is adequate and effective. Obtain annually a
report from the independent registered public accounting firm and management regarding
assessment of the effectiveness of the internal control over financial reporting.
VI. Oversight of the Companys relationship with the Independent Registered Public
Accounting Firm
The Audit Committee, to the extent it deems necessary or appropriate, shall:
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(1) Be solely responsible for the appointment, compensation, retention and oversight of the
work of the Companys independent registered public accounting firm. The independent
registered public accounting firm shall report directly to the Audit Committee. If the
appointment of the independent registered public accounting firm is submitted for any
ratification by shareholders, the Audit Committee shall be responsible for making the
recommendation that the shareholders ratify the independent registered public accounting
firm.
(2) Review and evaluate the lead partner of the independent registered public accounting
firm.
(3) Obtain and review a report from the independent registered public accounting firm at
least annually regarding (a) the independent registered public accounting firms 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 and (c) any steps taken to deal with any
such issues. Evaluate the qualifications, performance and independence of the independent
registered public accounting firm, including considering whether the auditors quality
controls are adequate and the provision of permitted non-audit services is compatible with
maintaining the auditors independence, and taking into account the opinions of management
and internal auditors, if any. The Audit Committee shall present its conclusions with
respect to the independent registered public accounting firm to the Board.
(4) Obtain from the independent registered public accounting firm a formal written statement
delineating all relationships between the independent registered public accounting firm and
the Company consistent with Independence Standards Board Standard 1. It is the
responsibility of the Audit Committee to actively engage in a dialogue with the independent
registered public accounting firm with respect to any disclosed relationships or services
that may impact the objectivity and independence of the independent registered public
accounting firm and for taking, or recommending that the full Board take, appropriate action
to oversee the independence of the outside auditors.
(5) Ensure the rotation of the lead (or coordinating) audit partner (having primary
responsibility for the audit) and the audit partner responsible for reviewing the audit as
required by law. Consider whether, in order to assure continuing auditor independence, it is
appropriate to adopt a policy of rotating the independent auditing firm on a regular basis.
(6) Approve in advance any audit or permissible non-audit engagement or relationship between
the Company and the independent registered public accounting firm. The Audit Committee shall
establish guidelines for the retention of the independent registered public accounting firm
for any permissible non-audit services. The Committee hereby delegates to the Chairman of
the Audit Committee the authority to approve in advance all audit or non-audit services to
be provided by the independent registered
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public accounting firm if presented to the full Audit Committee at the next regularly
scheduled meeting.
(7) Recommend to the Board policies for the Companys hiring of employees or former
employees of the independent registered public accounting firm.
(8) Discuss with the independent registered public accounting firm material issues on which
the national office of the independent registered public accounting firm was consulted by
the Companys audit team.
(9) Meet with the independent registered public accounting firm prior to the audit to
discuss the planning and staffing of the audit.
VII. Oversight of the Companys Internal Audit Function.
The Audit Committee shall meet with management of the Company no less frequently than annually
for the purpose of determining whether or not an internal audit function is necessary or advisable.
If the Audit Committee determines that designation of one or more internal auditors is necessary
or advisable, the individual(s) assigned to that function shall perform the duties and communicate
with the Audit Committee as specified herein.
If the Company has internal audit personnel or other internal audit functions, the Audit
Committee, to the extent it deems necessary or appropriate, shall:
(1) Review the appointment and replacement of the senior internal auditing executive, if
any.
(2) Review the significant reports to management prepared by the internal auditing
department and managements responses.
(3) Discuss with the independent registered public accounting firm and management the
internal audit department responsibilities, budget and staffing and any recommended changes
in the planned scope of the internal audit.
VIII. Compliance Oversight Responsibilities.
The Audit Committee, to the extent it deems necessary or appropriate, shall:
(1) Obtain from the independent registered public accounting firm assurance that Section
10A(b) of the Exchange Act has not been implicated. Section 10A(b) generally relates to
illegal acts that have come to the attention of the independent registered public accounting
firm during the course of the audit.
(2) Obtain reports from management and the Companys senior internal auditing executive, if
any, that the Company and its subsidiary/foreign-affiliated entities are in conformity with
applicable legal requirements and the Companys Code of Conduct and Business Ethics. Advise
the Board with respect to the Companys policies and procedures
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regarding compliance with applicable laws and regulations and with the Companys Code of
Conduct and Business Ethics.
(3) Review and approve all transactions between the Company and any related person that are
required to be disclosed pursuant to Item 404 of Regulation S-K. Related person and
transaction shall have the meanings given to such terms in Item 404 of Regulation S-K, as
amended from time to time.
(4) Establish procedures for the receipt, retention and treatment of complaints received by
the Company regarding accounting, internal accounting controls or auditing matters, and the
confidential, anonymous submission by employees of concerns regarding questionable
accounting or auditing matters.
(5) Discuss with management and the independent registered public accounting firm any
correspondence with regulators or governmental agencies and any published reports that raise
material issues regarding the Companys financial statements or accounting policies.
(6) Discuss with the Companys general counsel, and/or outside legal counsel, legal matters
that may have a material impact on the financial statements or the Companys compliance
polices.
IX. Oversight of Information Technology Security Risks
The Audit Committee shall review and evaluate the Companys policies and practices with
respect to risk assessment and risk management over information technology, security and data
privacy protection.
X. Financial Management Oversight.
The Audit Committee, to the extent it deems necessary or appropriate, shall:
(1) Review and approve significant investment and asset/liability policies, including those
relating to rate sensitivity, liquidity, capital adequacy and dividend payments.
(2) Review capital, interest rate sensitivity, liquidity, derivatives activity and
investment portfolio and inter-bank liability position reports for compliance with approved
policies.
(3) Perform any other responsibilities delegated to the Committee by the Board from time to
time.
XI. Limitation of Audit Committees Role
While the Audit Committee has the responsibilities and powers set forth in this Charter, it is
not the duty of the Audit Committee to plan or conduct audits or to determine that the Companys
financial statements and disclosures are complete and accurate and are in accordance with generally
accepted accounting principles and applicable rules and regulations. These are the
responsibilities of management and the independent registered public accounting firm.
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