EVERGREEN RESOURCES, INC.
2003 Committee Charter : EVG
NOMINATING AND GOVERNANCE COMMITTEE CHARTER
The Nominating and Governance Committee is appointed by the Board of Directors to
(1) assist the Board in identifying individuals qualified to become Board members consistent
with criteria approved by the Board and to recommend to the Board director nominees for
election by the shareholders; (2) develop and recommend to the Board corporate governance,
conflicts of interest and business ethics policies, principles, codes of conduct and guidelines
applicable to the Company; (3) oversee the annual review of the Board's performance; and (4)
serve as the Company's Qualified Legal Compliance Committee for the purpose of Section 307
of the Sarbanes-Oxley Act of 2002 and the Securities and Exchange Commission's standards for
professional conduct for attorneys appearing and practicing before the Commission in the
representation of the Company, 17 C.F.R. Part 205 ("Part 205").
II. MEMBERSHIP AND PROCEDURE
The Nominating and Governance Committee shall consist of no fewer than three
members. Each member of the Nominating and Governance Committee shall meet the
independence requirements of the Company's Corporate Governance Guidelines, the rules of the
New York Stock Exchange and any other applicable requirements. The Board shall appoint the
members of the Nominating and Governance Committee and may remove such members at any
time. The members of the Nominating and Governance Committee shall serve until their
successors are appointed and qualify or until their earlier death, resignation or removal. The
Board shall designate the Chairman of the Nominating and Governance Committee or, if it fails
to do so, the members of the Nominating and Governance Committee shall elect a Chairman by
majority vote. The Board shall have the power at any time to change the size and membership of
the Nominating and Governance Committee and to fill vacancies in it, provided that any new
member satisfies the independence requirements set forth in the Company's Corporate
Governance Guidelines, the rules of the New York Stock Exchange and any other applicable
requirements. The Nominating and Governance Committee shall meet at least two times per
year and at such additional times as may be necessary to carry out its responsibilities. Except as
expressly provided in this Charter, the bylaws of the Company or the Corporate Governance
Guidelines of the Company, the Nominating and Governance Committee shall fix its own rules
III. AUTHORITY AND RESPONSIBILITIES
A. Nominating. The Nominating and Governance Committee shall:
1. Develop policies regarding the size and composition of the Board and its
committees and qualification criteria for Board members.
2. Actively seek, interview and screen individuals qualified to become Board
members for recommendation to the Board.
3. Have the sole authority to retain and terminate any search firm or other entity to
be used to identify director candidates and to approve the entity's fees and other
4. Receive and review recommendations concerning possible candidates for election
to the Board, including self-nominations, nominations from shareholders and
other third-party nominations, in accordance with the general and specific criteria
set forth below or determined as provided below:
(a) General Criteria. Director selection should include at least enough
independent directors to satisfy the minimum proportion of independent
directors to total directors required by the Company's Corporate
Governance Guidelines, the rules of the New York Stock Exchange and
other applicable regulatory requirements, and such independent director
nominees should have appropriate skills, experiences and other
characteristics to provide qualified persons to fill all Board committee
positions required to be filled by independent directors. Each director
(i) Be an individual of the highest character, judgment and integrity
and have an inquiring mind, vision, a willingness to ask hard
questions and the ability to work well with others;
(ii) Be free of any conflict of interest that would violate any applicable
law or regulation or interfere with the proper performance of the
responsibilities of a director;
(iii) Be willing and able to devote sufficient time to the affairs of the
Company and be diligent in fulfilling the responsibilities of a
director and Board committee member (including developing and
maintaining sufficient knowledge of the Company and its industry;
reviewing and analyzing reports and other information important to
Board and committee responsibilities; preparing for, attending and
participating in Board and committee meetings; and satisfying
appropriate orientation and continuing education guidelines); and
(iv) Demonstrate the capacity and desire to represent the balanced, best
interests of the shareholders as a whole and not primarily a special
interest group or constituency.
(b) Specific Criteria. In addition to the foregoing general criteria, the
Nominating and Governance Committee shall develop, reevaluate at least
annually and modify as appropriate a set of specific criteria outlining the
skills, experiences (whether in business or in other areas such as public
service, academia or scientific communities), particular areas of expertise,
specific backgrounds and other characteristics that should be represented
on the Board to enhance the effectiveness of the Board and Board
(i) These specific criteria should take into account any particular
current needs of the Company based on its business, size,
ownership, growth objectives, community, customers and other
characteristics and will need to be adjusted and refocused as these
Company characteristics change and evolve.
(ii) These specific criteria also should reflect the Company's belief
that diversity of background and experience provides additional
perspectives that are helpful.
(iii) The Nominating and Governance Committee should prepare at
least annually a list of any specific criteria so identified that are not
adequately represented on the Board. When practical, the
Committee should indicate the most significant deficiencies that
should be given the highest priority in recruiting new director
candidates possessing the missing criteria;
5. Develop policies and procedures for consideration of director candidates
recommended by shareholders (in accordance with the Company's bylaws and
applicable laws and regulations).
6. Recommend to the Board individuals for vacancies occurring from time to time
on the Board, including vacancies resulting from an increase in the size of the
7. Recommend to the Board the slate of nominees to be proposed by the Company
for election at each annual meeting of shareholders (with such process to include,
but not be limited to, an evaluation of whether it is appropriate for current
members of the Board to re-nominated for future term(s)).
8. Recommend to the Board the appointment and removal of Board members to
committees of the Board and the designation of committee chairs.
B. Corporate Governance. The Nominating and Governance Committee shall:
1. Develop and recommend to the Board a set of corporate governance, conflicts of
interest and business ethics policies, principles, codes of conduct and guidelines
for the Company and its directors, officers, employees and agents.
2. Review and reassess at least annually the adequacy of the Company's corporate
governance, conflicts of interest and business ethics policies, principles, codes of
conduct and guidelines in light of emerging issues and developments related to
corporate governance and other factors and formulate and recommend any
proposed changes to the Board for approval.
3. Generally advise the Board as a whole on corporate governance matters.
4. Review and reassess at least annually the adequacy of this Charter and
recommend any proposed changes to the Board for approval.
5. Annually review its own performance.
6. Solicit input from all directors and oversee the review of the effectiveness of the
Board and its committees and present its assessment of the performance of the
Board and its committees to the full Board at least annually.
7. Periodically review the Company's shareholders rights plan to determine whether
its provisions are in the best interests of the Company's shareholders.
8. Review and make recommendations to the Board regarding the Company's
responses to shareholder proposals.
9. Develop policies and procedures for shareholder communications with the Board
(in accordance with the Company's bylaws and applicable laws and regulations).
10. Oversee and review on a periodic basis the orientation and continuing education
programs for directors.
11. Review periodically with the Chief Executive Officer the succession plans
relating to positions held by senior corporate officers and make recommendations
to the Board with respect to the selection and development of individuals to
occupy those positions.
C. Qualified Legal Compliance Committee Responsibilities. The Nominating and
Governance Committee shall perform the responsibilities of a Qualified Legal
Compliance Committee as set forth in Part 205 and Section IV of this Charter.
D. Other. The Nominating and Governance Committee:
1. May form and delegate authority to subcommittees in its sole discretion.
2. Shall make regular reports and recommendations to the Board.
3. Shall have the authority to request reports or other information from internal or
external sources on matters related to its authority, its duties as described in this
Charter and on any subject that it deems related to its responsibilities.
4. Shall have the authority to retain outside accountants, legal counsel and other
advisors as it may deem appropriate in its sole discretion and approve related fees
and retention terms.
5. Shall undertake such additional actions within the scope of its primary functions
as the Board or Nominating and Governance Committee shall determine.
IV. PART 205 MATTERS
A. QLCC. The Nominating and Governance Committee is authorized to serve as a
Qualified Legal Compliance Committee ("QLCC") for the purpose of Part 205
and to receive reports from outside counsel and in-house counsel of evidence of
material violations of securities laws and breaches of fiduciary duty and similar
violations by officers, directors, employees and agents of the Company ("Material
Violations"), to instruct or retain counsel to conduct an investigation, and to direct
and oversee such investigation, concerning whether such reports have merit, and,
if so, to recommend to the Company's Board of Directors an appropriate response
to such Material Violations. Part 205 shall govern the rights and responsibilities
of the Nominating and Governance Committee and its members in the event of a
conflict between this Charter and Part 205.
B. Meetings. The Nominating and Governance Committee shall meet as soon as
practicable following the report of evidence of a Material Violation and as
necessary thereafter in connection with such report. The Nominating and
Governance Committee shall meet at least annually with the Company's Chief
Executive Officer and with the Company's regular outside counsel to receive a
report on legal compliance issues.
C. Authority and Responsibilities. The Nominating and Governance Committee
shall have the authority and responsibility to:
1. Adopt written procedures for the confidential receipt, retention, and
consideration of any report of evidence of a Material Violation.
2. Receive reports of evidence of a Material Violation from outside or inhouse
3. Notify the Company's Chief Executive Officer ("CEO") and the
Company's chief legal officer ("CLO") upon receipt of any such report of
evidence of a Material Violation. The Chief Executive Officer shall be
deemed to be the CLO for the purpose of Part 205.2(k)(3)(i), unless the
Company has employed a general counsel to serve in the capacity of CLO.
Notwithstanding the above, if the Nominating and Governance Committee
reasonably believes that it would be futile to report evidence of a Material
Violation to the CEO and CLO, the Committee may report the evidence of
a Material Violation to the Company's Audit Committee.
4. Decide whether an investigation is necessary to determine whether the
Material Violation described in the report has occurred, is occurring or is
about to occur.
5. If the Nominating and Governance Committee determines an investigation
is necessary regarding a report of evidence of a Material Violation, to
engage or appoint counsel (which may be outside counsel or, at the
Committee's election, the Company's general counsel if the Company has
employed one) to undertake an investigation of such report.
6. Notify the Audit Committee or Board of Directors of such investigation.
7. Retain such expert personnel as the Nominating and Governance
Committee deems necessary.
8. At the conclusion of any such investigation, to recommend by majority
vote that the Company implement an "appropriate response" (as such term
is defined in Part 205) to such Material Violation; and inform the CEO,
the CLO and the Board of Directors of the results of any such
investigation and the appropriate remedial measures to be adopted.
9. Acting by majority vote, take all other appropriate action, including the
authority to notify the Securities and Exchange Commission in the event
that the Company fails in any material respect to implement an appropriate
response that the Nominating and Governance Committee has
recommended that the Company take.