The following are terms of a legal agreement between you and ComCam.
TABLE OF CONTENTS
- Certain disclaimers
- Forward-looking and cautionary statements
- Confidential information
- Global availability
- Business relationships
- Linking to this site
- Disclamar of Warranty
- Limitation of Liability
- The Bylaws of ComCam International, Inc.
- Certificate of Incorporation
- Entity Level Controls (SOX)
- ComCam NDA: .DOC | .PDF
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FORWARD-LOOKING AND CAUTIONARY STATEMENTS
Except for historical information and discussions, statements set forth throughout this web site may constitute forward- looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 or other applicable laws. These forward-looking statements involve a number of risks and uncertainties, including timely development, market acceptance of products and technologies, competitive market conditions, successful integration of acquisitions and the ability to secure additional sources of financing. The actual results that ComCam may achieve could differ materially from any forward-looking statements due to such risks and uncertainties. ComCam encourages the public to read the information provided here in conjunction with its most recent filings on Form 10-K and Form 10-Q. ComCam's public filings may be viewed at http://www.sec.gov.
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Information ComCam publishes on the World Wide Web may contain references or cross references to ComCam products, programs and services that are not announced or available in your country. Such references do not imply that ComCam intends to announce or make available such products, programs, or services in your country. Please consult your local ComCam business contact for information regarding the products, programs, and services that may be available to you.
This Web site may provide links or references to non-ComCam Web sites and resources. ComCam makes no representations, warranties, or other commitments whatsoever about any non-ComCam Web sites or third-party resources that may be referenced, accessible from, or linked to any ComCam site. A link to a non-ComCam Web site does not mean that ComCam endorses the content or use of such Web site or its owner. In addition, ComCam is not a party to or responsible for any transactions you may enter into with third parties, even if you learn of such parties (or use a link to such parties) from an ComCam site. Accordingly, you acknowledge and agree that ComCam is not responsible for the availability of such external sites or resources, and is not responsible or liable for any content, services, products, or other materials on or available from those sites or resources.
When you access a non-ComCam Web site, even one that may contain the ComCam-logo, please understand that it is independent from ComCam, and that ComCam does not control the content on that Web site. It is up to you to take precautions to protect yourself from viruses, worms, trojan horses, and other potentially destructive programs, and to protect your information as you deem appropriate.
ComCam's obligations and responsibilities regarding ComCam products are governed solely by the agreements under which they are sold or licensed.
Always check your software license agreements to make sure that you do not infringe the intellectual property rights of others. You must have the consent of the licensor or owner of the software before accessing or modifying it.
LINKING TO THIS SITE
All links to this Web site must be approved in writing by ComCam, except that ComCam consents to links in which the link and the pages that are activated by the link do not: (a) create frames around any page on this Web site or use other techniques that alter in any way the visual presentation or appearance of any content within this site; (b) misrepresent your relationship with ComCam; (c) imply that ComCam approves or endorses you, your Web site, or your service or product offerings; and (d) present false or misleading impressions about ComCam or otherwise damage the goodwill associated with the ComCam name or trademarks. As a further condition to being permitted to link to this site, you agree that ComCam may at any time, in its sole discretion, terminate permission to link to this Web site. In such event, you agree to immediately remove all links to this Web site and to cease using any ComCam trademark.
DISCLAMER OF WARRANTY
Use of this site is at your sole risk. all materials, information, products, software, programs, and services are provided "as is," with no warranties or guarantees whatsoever. ComCam expressly disclaims to the fullest extent permitted by law all express, implied, statutory, and other warranties, guarantees, or representations, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary and intellectual property rights. without limitation, comcam makes no warranty or guarantee that this web site will be uninterrupted, timely, secure, or error-free.
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Some jurisdictions do not allow the exclusion of warranties, so the above exclusions may not apply to you.
LIMITATION OF LIABILITY
In no event will ComCam be liable to any party for any direct, indirect, incidental, special, exemplary or consequential damages of any type whatsoever related to or arising from this web site or any use of this web site, or of any site or resource linked to, referenced, or accessed through this web site, or for the use or downloading of, or access to, any materials, information, products, or services, including, without limitation, any lost profits, business interruption, lost savings or loss of programs or other data, even if ComCam is expressly advised of the possibility of such damages. This exclusion and waiver of liability applies to all causes of action, whether based on contract, warranty, tort, or any other legal theories.
THE BYLAWS OF COMCAM INTERNATIONAL, INC.
ARTICLE I. STOCKHOLDERS
- Section 1.01 Annual Meetings. An annual meeting of the stockholders shall be held for the election of directors at such date, time and place, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.
- Section 1.02 Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Chairman of the Board, if any, the Vice Chairman of the Board, if any, the President or the Board of Directors, or by a committee of the Board of Directors which has been duly designated by the Board of Directors, and whose powers and authority, as expressly provided in a resolution of the Board of Directors, include the power to call meetings. Such special meetings shall be held at such date, time and place either within or without the State of Delaware as maybe stated in the notice of the meeting.
- Section 1.03 Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the written notice of any meeting shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the Corporation.
- Section 1.04 Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
- Section 1.05 Quorum. At each meeting of stockholders, except where otherwise provided by law or the Certificate of Incorporation or these Bylaws, the holders of a majority of the outstanding shares of stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum. For purposes of the foregoing, two or more classes or series of stock shall be considered a single class if the holders thereof are entitled to vote together as a single class at the meeting. In the absence of a quorum, the stockholders so present may, by majority vote, adjourn the meeting from time to time in the manner provided in Section 1.4 of these Bylaws until a quorum shall attend. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of any corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.
- Section 1.06 Organization. Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or in his absence by the Vice Chairman of the Board, if any, or in his absence by the President, or in his absence by a Vice President, or in the absence of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation, by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
- Section 1.07 Voting; Proxies.
- (a) Unless otherwise provided in the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by him which has voting power upon the matter in question.
- (b) Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.
- (c) Without limiting the manner in which a stockholder may authorize another person or persons to act for him as proxy pursuant to this subsection (b) of this Section, the following shall constitute a valid means by which a stockholder may grant such authority:
- (i) A stockholder may execute a writing authorizing another person or persons to act for him as proxy. Execution may be accomplished by the stockholder or his authorized officer, director, employee or agent signing such writing or causing his or her signature to be affixed to such writing by any reasonable means including, but not limited to, by facsimile signature.
- (ii) A stockholder may authorize another person or persons to act for him as proxy by transmitting or authorizing the transmission of a telegram, cablegram or other means of electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such telegram, cablegram or other means of electronic transmission must either set forth or be submitted with information from which it can be determined that the telegram, cablegram, or other electronic transmission was authorized by the stockholder. If it is determined that such telegrams, cablegrams or other electronic transmissions are valid, the inspectors or, if there are no inspectors, such other persons making that determination shall specify the information upon which they relied.
- (d) Any copy, facsimile, telecommunication or other reliable reproduction of the writing or transmission created pursuant to this subsection (c) of this Section, may be submitted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile, telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.
- (e) A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the Corporation. Voting at meetings of stockholders need not be by written ballot and need not be conducted by inspectors unless the holders of a majority of the outstanding shares of all classes of stock entitled to vote thereon present in person or by proxy at such meeting shall so determine. At all meetings of stockholders for the election of directors, a plurality of the votes cast shall be sufficient to elect. All other elections and questions shall, unless otherwise provided by law or by the Certificate of Incorporation or these Bylaws, be decided by the vote of the holders of a majority of the outstanding shares of stock entitled to vote thereon present in person or by proxy at the meeting, provided that (except as otherwise required by law or by the Certificate of Incorporation) the Board of Directors may require a larger vote upon any election or question.
- Section 1.08 Fixing Date for Determination of Stockholders of Record.
- (a) Notice and Voting Rights: In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
- (b) Consents: In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by law, the Certificate of Incorporation or these Bylaws, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office, principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the Certificate of Incorporation or these Bylaws, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
- (c) Other Lawful Action: In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
- Section 1.09 List of Stockholders Entitled to Vote. The Secretary shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.
- Section 1.10 Consent of Stockholders in Lieu of Meeting. Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. The consent or consents shall be delivered to the Corporation by delivery to its registered office, principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty days of the earliest dated consent delivered in the manner required by law, to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the corporation in the manner indicated above. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
ARTICLE II. BOARD OF DIRECTORS
- Section 2.01 Functions and Compensation. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation. The Board of Directors shall have the authority to fix the compensation of the members thereof.
- Section 2.02 Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.
- Section 2.03 Election; Resignation; Removal; Vacancies. The Board of Directors shall initially consist of the persons elected as such by the incorporator. At the first annual meeting of stockholders and at each annual meeting thereafter, the stockholders shall elect Directors to replace those Directors whose terms then expire. Any Director may resign at any time upon written notice to the Corporation. Stockholders may remove Directors with or without cause by vote of a majority of the shares then entitled to vote at an election of directors. Any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each Director so elected shall hold office until the expiration of the term of office of the Director whom he has replaced.
- Section 2.04 Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine, and if so determined notices thereof need not be given.
- Section 2.05 Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the Chairman of the Board, the Vice Chairman of the Board, the President, any Vice President, the Secretary, or by a plurality of directors in office. Reasonable notice thereof shall be given by the person or persons calling the meeting, not later than the second day before the date of the special meeting.
- Section 2.06 Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board, may participate in a meeting of such Board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 2.06 shall constitute presence in person at such meeting.
- Section 2.07 Quorum; Vote Required for Action. At all meetings of the Board of Directors a majority of the entire Board shall constitute a quorum for the transaction of business. Except in cases in which the Certificate of Incorporation or these Bylaws otherwise provide, the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
- Section 2.08 Organization. Meetings of the Board of Directors shall be presided over by the Chairman of the Board, if any, or in his absence by the Vice Chairman of the Board, if any, or in his absence by the President, or in his absence by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
- Section 2.09 Action by Directors Without a Meeting. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board or such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.
ARTICLE III. COMMITTEES
- Section 3.01 Committees. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of dissolution, removing or indemnifying directors or amending these Bylaws; and, unless the resolution expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.
- Section 3.02 Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these Bylaws.
ARTICLE IV. OFFICERS
- Section 4.01 Executive Officers: Election: Qualifications. As soon as practicable after the annual meeting of stockholders in each year the Board of Directors shall elect a President and Secretary, and it may, if it so determines, elect a Chairman of the Board and a Vice Chairman of the Board from among its members. The Board of Directors may also elect one or more Vice Presidents, one or more Assistant Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and may give any of them such further designations or alternate titles as it considers desirable. Any number of offices may be held by the same person.
- Section 4.02 Term of Office; Resignation; Removal; Vacancies. Except as otherwise provided in the resolution of the Board of Directors electing any officer, each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding this election, and until his successor is elected and qualified or until his earlier resignation or removal. Any officer may resign at any time upon written notice to the Corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.
- Section 4.03 Powers and Duties of Executive Officers. The officers of the Corporation shall have such powers and duties in the management of the Corporation as may be prescribed by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Secretary shall have the duty to record the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book to be kept for that purpose. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his duties.
- Section 4.04 Compensation. The Board of Directors shall fix the compensation of the Chairman of the Board and of the President and shall fix, or authorize the Chairman of the Board or the President to fix, the compensation of any or all others. The Board of Directors may allow compensation to members of any committee and may vote compensation to any director for attendance at meetings or for any special services.
ARTICLE V. STOCK
- Section 5.01 Certificates. Every holder of stock shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman or Vice Chairman of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation, certifying the number of shares owned by him in the Corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.
- Section 5.02 Transfer of Stock. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares endorsed or accompanied by a written assignment signed by the holder of record or by his duly authorized attorney-in- fact, it shall be the duty of the Corporation, or its duly appointed transfer agent, to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.
- Section 5.03 Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.
ARTICLE VI. INDEMNIFICATION
- Section 6.01 Definitions. For purposes of this Article, the following definitions shall apply:
- (a) "the Corporation" includes, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued;
- (b) "other enterprises" includes employee benefit plans;
- (c) "fines" includes any excise taxes assessed on a person with respect to any employee benefit plan;
- (d) "serving at the request of the Corporation" includes any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Article.
- Section 6.02 Power to Indemnify in Actions. Suits or Proceedings Other than Those by or in the Right of the Corporation. Subject to Section 6.04 of this Article, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other entity or enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person's conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of no lo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person's conduct was unlawful.
- Section 6.03 Power to Indemnify in Actions. Suits or Proceedings by or in the Right of the Corporation. Subject to Section 6.4 of this Article, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other entity or enterprise against expenses (including attorney's fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
- Section 6.04 Authorization of Indemnification. Any indemnification under this Article (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Sections 6.02 and 6.03 of this Article, as the case maybe. Such determination shall be made (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (3) by the stockholders. To the extent that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.
- Section 6.05 Good Faith Defined. For purposes of any determination under Section 6.04 of this Article, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe such persons conduct was unlawful, if such person's action is based on the records or books of accounts of the Corporation or another enterprise, or on information supplied to such person by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 6.5 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other entity or enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provision of this Section 6.05 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 6.02 or 6.03 of this Article, as the case maybe.
- Section 6.06 Indemnification by the Court of Chancery. Notwithstanding any contrary determination in the specific case under Section 6.04 of this Article, and notwithstanding the absence of any determination thereunder, any director or officer may apply to the Court of Chancery in the State of Delaware for indemnification to the extent otherwise permissible under Sections 6.02 and 6.03 of this Article. The basis of such indemnification by the Court of Chancery shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standards of conduct set forth in Sections 6.02 or 6.03 of this Article, as the case may be. Neither a contrary determination in the specific case under Section 6.04 of this Article nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 6.06 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application.
- Section 6.07 Expenses Payable in Advance. Expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding by the Corporation upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Section.
- Section 6.08 Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, the other Sections of this Article shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 6.02 and 6.03 of this Article, shall be made to the fullest extent permitted by law. The provisions of this Article VI shall not be deemed to preclude the indemnification of any person who is not specified in Section 6.02 or 6.03 of this Article but whom the Corporation has the power or obligation to indemnify under the provisions of the General Corporation Law of the State of Delaware, or otherwise.
- Section 6.09 Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer serving at the request of the Corporation as a director, officer, employee or agent on another corporation, partnership, capacity, or arising out of such person's status as such, whether or not the Corporation would have the power to indemnify or the obligation to indemnify such person against such liability under this Article.
- Section 6.10 Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.
- Section 6.11 Limitation on Indemnification. Notwithstanding anything contained in this Article to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 6.06 hereof) the Corporation shall not be obligated to indemnify any director or officer in connection with proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation.
- Section 6.12 Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article to directors and officers of the Corporation.
ARTICLE VII. MISCELLANEOUS
- Section 7.01 Fiscal Year. The fiscal year of the Corporation shall be determined by resolution of the Board of Directors.
- Section 7.02 Seal. The Corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.
- Section 7.03 Waiver of Notice of Meetings of Stockholders. Directors and Committees. Any written waiver of notice, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in any written waiver of notice.
- Section 7.04 Interested Directors; Quorum. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if: (1) the material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorized the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (2) the material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (3) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof, or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
- Section 7.05 Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, microphotographs, or any other information storage device, provided that the records so kept can be converted into clearly legible form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect the same.
- Section 7.06 Amendment of Bylaws. These Bylaws maybe altered or repealed, and new bylaws made, by the Board of Directors, but the stockholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.
COMCAM INTERNATIONAL, INC. - AMENDED AND RESTATED - CERTIFICATE OF INCORPORATION
ComCam International, Inc., a Delaware corporation (the "Corporation"), hereby certifies that:
- A. The Corporation was incorporated under the laws of the State of Delaware on September 18, 1998, under the name Embedded Technology Groups Inc. On February 10, 1999, the Corporation amended and restated its certificate of incorporation under the name ComCam International, Inc.
- B. The following Amended and Restated Certificate of Incorporation was duly proposed by the corporation's Board of Directors and duly adopted pursuant to the applicable provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware.
- C. The following Amended and Restated Certificate of Incorporation was duly adopted by the holders of a majority of shares entitled to vote thereon pursuant to the applicable provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware:
- 1. The name of the corporation is ComCam International, Inc.
- 2. The address of the registered office of the Corporation in the State of Delaware is 3511 Silverside Road, Suite 105, Wilmington, Delaware 19810, County of Newcastle. The name of the registered agent of the Corporation in the State of Delaware at such address is Delaware Registry, Ltd.
- 3. The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of Delaware (the "Law").
- 4. The Corporation is authorized to issue 102,000,000 shares of capital stock, of which 100,000,000 shares shall be common stock, par value $.0001 per share, and 2,000,000 shares shall be preferred stock, par value $.0001 per share. The preferred stock may be issued from time to time in one or more series. The Board of Directors (the "Board") is hereby authorized to fix by resolution or resolutions the designation, powers, preferences and rights of the shares of each such series, and the qualifications, limitations or restrictions thereof.
- 5. The Board is authorized to adopt, amend, or repeal Bylaws.
- 6. The directors of the Corporation need not be elected by written ballot, unless the Bylaws so provide.
- 7. To the extent permitted by the Law, as in effect from time to time, the Corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that such person is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding.
- 8. No director shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided that the foregoing provision shall not eliminate or limit the liability of a director: (a) for any breach of the director's duty of loyalty to the Corporation or its stockholders; (b) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; (c) under section 174 of the Law; or (d) for any transaction from which the director derived an improper personal benefit.
- 9. The following provisions, which may not be amended or repealed without the prior written consent of ACC Investors, LLC, shall apply, if a securities purchase agreement among the Corporation, ComCam, Inc., and ACC Investors, LLC (the "SPA") is entered into on or before June 30, 2005:
- (a) After the Distribution (as defined in the SPA) and as long as the Note (as defined in the SPA) is outstanding or ACC Investors, LLC, its members, and their affiliates and associates own beneficially 15% or more of the outstanding shares of the Corporation's common stock, ACC Investors, LLC, or its designee ("ACC") shall be entitled to appoint one member of the Board and one member to each committee of the Board (each, a "Committee") (an individual so appointed, an "ACC Director").
- (b) (1) If, from time to time, ACC gives notice to the Corporation of its wish to remove the incumbent ACC Director as a member of the Board and/or a Committee, the incumbent ACC Director shall, immediately upon the Corporation's receipt of that notice and without further action, cease to be a member of the Board and/or such Committee.
- (2) If, from time to time, an ACC Director ceases to hold office, ACC shall be entitled to appoint an individual to fill the resulting vacancy by giving notice to the Corporation of the name of the replacement ACC Director and without further action.
- (c) The Corporation and the Board shall permit a representative of ACC, in addition to the ACC Director, to attend all meetings of the Board.
- (d) If the Corporation shall have breached any of its obligations set forth in this section 9 and as long as such breach remains uncured, no action of the Board or any Committee shall have any force or effect.
- (e) ACC will be irreparably damaged if this section 9 is not specifically enforced. If any dispute arises under this section 9, a temporary restraining order or an injunction may be issued restraining action by the Corporation pending the determination of the controversy, without any bond or other security being required. If any dispute arises concerning any of ACC's rights or obligations under this section 9, that right or obligation shall be enforceable in a court of equity by a decree of specific performance without any bond or other security being required. In connection with any proceeding under this section 9, the Corporation irrevocably consents to an emergency or short-notice hearing. These remedies shall not be exclusive, and shall be in addition to any other remedies ACC may have. The prevailing party in any proceeding under this section 9 shall be entitled to recover from the other party in the proceeding its attorneys' fees and costs incurred in connection therewith.
- (f) As used in this section 9, "own beneficially" has the same meaning as under Rule 13d-3 under the Securities Exchange Act of 1934.
- (g) All notices provided for in this section 9 shall be in writing and shall be (i) delivered in person, (ii) transmitted by telecopy, (iii) sent by first-class, registered or certified mail, postage prepaid, or (iv) sent by reputable overnight courier service, fees prepaid, to the recipient at the address or telecopy number set forth below, or such other address or telecopy number as may hereafter be designated in writing by such recipient. Notices shall be deemed given upon personal delivery, seven days following deposit in the mail as set forth above, upon acknowledgment by the receiving telecopier or one day following deposit with an overnight courier service.
If to the Corporation, to it at:
1140 McDermott Drive Suite 200 West Chester, Pennsylvania 19380 Facsimile: (610) 436.8079 Attention: Chief Executive Officer
If to ACC, to it at:
c/o G.C. Andersen Partners, LLC 430 Park Ave New York, New York 10022 Facsimile: (212) 842-1540 Attention: Mr. Paul Higbee
By: /s/ Don Gilbreath Name: Don Gilbreath Title: Chairman & CEO
COMCAM ENTITY LEVEL CONTROLS - FEBRUARY 1, 2010
Purpose: To document the design of entity level controls related to each of the five components of internal control over financial reporting.
The control environment is designed to and does have the following qualities based on observation and knowledge of the Company gained during day-to-day operations:
Integrity and Ethical Values
- Sound integrity and ethical values, particularly of top management, are developed and understood.
- Management does communicate to employees (including outsourced accounting service) its views on business practices and ethical behavior.
- The company does have a code of conduct that includes provisions about conflicts of interest, related-party transactions, illegal acts, and the monitoring of the code by management and the audit committee or board of directors.
- The company does have adequate procedures for handling complaints and confidential submissions of concerns about questionable accounting or auditing matters.
- Management does demonstrate an appropriate attitude toward financial reporting ("tone at the top"), for example, by selecting appropriate accounting principles, properly applying accounting principles, disclosing important information, and accurately preparing information.
- The company does take appropriate action to address known departures from approved policies or unacceptable business practices or conduct that might significantly affect the financial reporting process.
- If a fraud incident is alleged, management does thoroughly investigate the incident, take appropriate and consistent actions against violators, assess how relevant controls could be improved, and reinforce the company's values and expectations through appropriate communication.
- Management is satisfied that all employees (including outsourced accounting service) are honest.
- Management demonstrates integrity in its everyday dealings with customers, employees, suppliers, and other parties.
- Employee training and evaluation procedures do consider standards of ethical behavior and appropriate business practices.
- Management does understand its responsibility for establishing and monitoring the company's fraud risk assessment and monitoring activities.
Commitment to Competence
- Accounting personnel do have the background, education, and experience appropriate for their duties.
- Management has established policies and procedures that provide reasonable assurance of reliable accounting estimates.
Board of Directors or Audit Committee Participation
- The board of directors and audit committee do understand and exercise oversight responsibility over financial reporting and internal control.
- The audit committee does oversee the activities of management and is it appropriately involved in the oversight of the company's fraud risk management program.
- The audit committee's responsibilities are clearly articulated in the audit committee's charter.
- The extent of the audit committee's involvement and interaction with key members of financial management (including the chief financial officer and chief accounting officer) is adequate.
- The extent of the audit committee's involvement and interaction with the independent auditors (including its responsiveness to issues raised by the independent auditors) is adequate.
- The audit committee does raise and pursue the right questions with management and the independent auditors, including questions that indicate an understanding of the critical accounting policies and judgmental accounting estimates.
Management's Philosophy and Operating Style
- Management's philosophy and operating style does promote effective internal control over financial reporting.
- Management does demonstrate a concern for control by performing important internal control procedures such as approvals, regular preparation or review of reconciliations, review of accounts receivable trial balances, etc.
- Management does have a conservative attitude toward financial reporting.
- The company's organizational structure is appropriate for the size and complexity of the entity.
- The turnover of accounting and IT personnel is relatively low.
Assignment of Authority and Responsibility
- Management does commit sufficient resources to address information technology (IT) risks, such as unauthorized access to applications or data, potential loss of data, and reliance on inadequate systems, that may adversely affect internal control.
- Controls over authorization of transactions are established at an appropriate level.
- There are policies and procedures to prevent unauthorized access to documents, records, computer hardware and software, and other assets.
- Authority and responsibility within the company is appropriately assigned.
- The company does have formal job descriptions or other ways of defining particular job tasks.
- Employee job responsibilities, including specific duties, reporting relationships, and constraints are clearly communicated.
- Management has established procedures for authorizing transactions and approving changes to applications or data.
Human Resource Policies and Practices
- The workload of management and accounting personnel does appear to permit them to be mindful of controlling the quality of their work.
- Background and references are checked for new employees, especially accounting and IT personnel.
- Adequate training is provided for new accounting and IT personnel.
- There are regular evaluations of personnel performance.
- Human resource policies and practices does include background and reference checks and regular performance evaluations for IT personnel.
Control deficiencies indentified: None.
Risk Assessment Process
The risk assessment process is designed to and does have the following qualities based on observation and knowledge of the Company gained during day-to-day operations:
Management has developed a fraud risk assessment and monitoring program that is appropriate for the size and complexity of the company, including the risks of material misstatement in the significant accounts and disclosures and related assertions and implementing controls to prevent or detect errors or fraud that could result in material misstatements.
Management does assess the effect of the following conditions on the company's ability to prepare financial statements that are free from material misstatement:
- Changes in the company's operating environment.
- New personnel.
- New or revised information systems.
- Rapid growth.
- New technologies in production processes or information systems.
- New business models, products, or other business activities.
- Restructuring or reorganization and resulting staff reductions, changes in supervision, or segregation of duties.
Sufficient timely information is available to assist management in identifying and managing risks relevant to financial reporting.
The effects of risks relevant to financial reporting that management has decided to accept because of cost or other considerations, are considered to be immaterial to the financial statements.
The company does have a disaster recovery plan. (Mostly entails offsite backup of computer information)
The company's risk assessment process does include an assessment of the company's vulnerabilities to fraudulent activity and whether any of those exposures could result in material misstatement of the financial statements.
The company has attempted to identify the processes, controls, and other procedures needed to mitigate identified fraud risks.
Control deficiencies indentified: None.
Information and Communication Process
The information and communication process is designed to and does have the following qualities based on observation and knowledge of the Company gained during day-to-day operations:
- Key management personnel and others involved in financial reporting and asset safeguarding do understand the duties and control responsibilities applicable to their jobs and the fact that their responsibilities contribute to the company's financial reporting objectives.
- Company personnel do have a clear understanding of the types of problems that should be reported upstream to management.
- Employees are encouraged to report suspected improprieties to senior management, the board of directors, or the audit committee, depending on the circumstances.
- There are established accounting policies; policies related to safeguarding of assets, including cash; and a current chart of accounts. (All accounting responsibilities are outsourced to Jones Simkins, P.C., who are considered competent to account for all transactions and draft the financial statements.)
- Management does effectively communicate and coordinate with all parties responsible for reading and commenting on drafts of SEC filing documents.
- There are procedures in place to ensure that the financial statements and related SEC filings include adequate disclosure. (Responsibility of Jones Simkins, P.C., outsourced CPAs, who draft the financial statements)
- There is a process in place to ensure the company's financial information is properly processed in the SEC EDGAR system.
Control deficiencies indentified: None.
Internal Control Monitoring Process
The internal control monitoring process is designed to and does have the following qualities based on observation and knowledge of the Company gained during day-to-day operations:
- Senior management is sufficiently involved in the day-to-day operations of the business to identify significant variances from expectations.
- Management does exercise reasonable control over operations so that there is an absence of crisis conditions in operations or accounting.
- Company personnel, in carrying out their regular activities, do obtain evidence as to the adequacy of the company's internal controls.
- Management does have a business or profit plan, budget, forecast, etc.
- Management does understand and use the financial statements and required reports, such as SEC filings and tax returns.
- Management does periodically review operating results or budget variations.
- Management is adequately involved in designing and approving financial reporting system and asset safeguarding procedures.
- Management does take appropriate follow-up action for identified problems or weaknesses in internal controls (including matters communicated by the external auditors).
- Information received from external parties (for example, customers or suppliers) is compared to internally generated information.
- Appropriate personnel do reconcile significant assets with accounting records and reconcile detail and control accounts at sufficiently frequent intervals.
- Amounts recorded by the accounting system are periodically compared with physical assets.
- Management does have an adequate basis for believing that the sources of information used for monitoring the effectiveness of internal control provide accurate data.
- Management does use performance indicators, both financial and nonfinancial, that are important in managing and measuring the company's results (for example, profitability, cash flow, inventory turnover, market share, customer satisfaction, etc.), and there are reports that can be used to monitor those indicators.
- There are procedures in place to ensure that required certifications are completed and filed with the SEC on a timely basis.
- There are procedures in place to ensure that all SEC filing deadlines are met.
- The audit committee does satisfy its SEC communication requirements with the external auditors on a timely basis.
Control deficiencies indentified: None.