METRETEK TECHNOLOGIES, INC.
NOMINATING AND CORPORATE GOVERNANCE COMMITTEE CHARTER
Amended and Restated as of April 25, 2005
The purposes of the Nominating and Corporate Governance Committee (the “Committee”) of the Board of Directors (the “Board”) of Metretek Technologies, Inc., a Delaware corporation (the “Company”), are to: (i) identify individuals qualified to become members of the Board; (ii) recommend to the Board individuals to serve as directors of the Company and on committees of the Board; (iii) advise the Board with respect to the composition, procedures and committees of the Board; (iv) develop and recommend to the Board, and to annually review, a set of corporate governance guidelines and principles applicable to the Company; and (v) have such other powers and perform such other duties as the Board may from time to time delegate to the Committee.
Structure and Membership
1. Number. The Committee shall consist of at least three members of the Board, with the exact number to be fixed from time to time by the Board.
3. Selection, Removal and Vacancies. The members of the Committee shall be appointed annually by the Board, and shall serve until their respective successors are duly appointed, or until their earlier death, resignation or removal. Members of the Committee may be removed by the Board at any time, with or without cause, and shall be deemed to be automatically removed if they fail to meet the requirements and qualifications set forth in this Charter. Vacancies on the Committee shall be filled by the Board.
4. Chairman. The Chairman of the Committee shall be appointed by the Board, provided that if the Board fails to make such appointment, then the members of the Committee may elect a Chairman of the Committee by majority vote of the members of the Committee.
5. Subcommittees. The Committee may form and delegate authority to one or more subcommittees as it deems appropriate from time to time. Each such subcommittee shall consist of one or more members of the Committee. Any such subcommittee shall be formed and operate in compliance with any Applicable Requirements.
Meetings and Procedures
1. Frequency of Meetings. The Committee shall meet (in person or by telephone) as often as it deems necessary or appropriate in order to perform its responsibilities, but not less than two times a year.
2. Meeting Formalities. A majority of the members of the Committee shall constitute a quorum for a meeting. When a quorum is present, the act of a majority of the members of the Committee present at a meeting shall constitute the act of the Committee. The Committee may take actions by unanimous written consent of its members in lieu of a meeting. The Chairman of the Board, the Chairman of the Committee, the Board, any two members of the Committee, or the Chief Executive Officer of the Company may call meetings of the Committee. The Committee shall maintain written minutes of its meetings, which minutes will be filed with the minutes of the meetings of the Board.
3. Taking Action by Unanimous Written Consents in Lieu of Meetings. The Committee may take actions by unanimous written consent of its members in lieu of a meeting.
4. Rules of Procedure. The Committee may from time to time establish and modify its own rules of procedure, provided such rules are consistent with this Charter.
5. Reports to Board. The Committee shall provide regular reports to the Board with respect to its meetings.
6. Attendance of Company Representatives. The Committee may request that any director, officer or employee of the Company, or any other persons whose advice and counsel are sought by the Committee, such as the Company’s outside counsel or independent auditors, attend any meeting of the Committee or meet with any members of, or consultants to or advisors of, the Committee.
7. Charter. The Committee shall annually review and reassess the adequacy of this Charter and recommend any proposed changes to the Board for approval.
Authority and Resources
1. Generally. The Committee shall have the resources and authority appropriate to discharge its duties and responsibilities.
2. Access to Company Property. The Committee shall have full access to all Company books, records, facilities, personnel and outside advisors.
3. Independent Advisors. The Committee shall have the authority, without further action by the Board, to engage to retain independent legal counsel, accounting or other consultants or experts as it deems necessary or appropriate to advise the Committee and to assist the Committee in the fulfillment of its responsibilities and duties, at the Company’s expense. The Committee may also utilize the services of the Company’s regular counsel and other advisors to the Company. The Company shall provide for appropriate funding, as determined by the Committee, for payment of compensation to any advisors engaged by the Committee.
4. Investigations. The Committee shall have the power to conduct or authorize investigations into any matters within the Committee’s scope of responsibilities. The Committee shall be empowered, without further action by the Board, to retain independent counsel, accountants or other advisors as the Committee deems necessary or appropriate to advise the Committee and to assist the Committee in any investigation or in the performance of its functions and duties, at the Company’s expense. The Committee shall have full access to all Company books, records, facilities, personnel and outside advisors.
Responsibilities and Duties
A. Board Candidates and Nominees
1. Nominee Qualification Criteria. The Committee shall develop and recommend to the Board director qualification criteria and establish procedures for evaluating the suitability of potential director nominees. Such criteria shall include the possession of such knowledge, experience, skills, expertise and diversity so as to enhance the Board’s ability to manage and direct the affairs and business of the Company, including, when applicable, to enhance the ability of committees of the Board to fulfill their duties and/or to satisfy any independence requirements imposed by Applicable Requirements. The Committee shall also consider the number of other public company boards on which director candidates and nominees sit in determining eligibility for election.
2. Identify and Review Nominees. The Committee shall actively identify and attract candidates for director and evaluate potential nominees proposed by management, shareholders or others.
3. Recommend Nominees. The Committee shall recommend to the Board the director nominees for election by the shareholders or for appointment by the Board, as the case may be, pursuant to the By-Laws of the Company, which recommendations shall be consistent with the Board’s criteria for selecting new directors.
4. Continuing Director Suitability. The Committee shall review the suitability for continued service as a director of each Board member when his or her term expires and when he or she has a significant change in status, including but not limited to an employment change, and to recommend whether or not the director should be re-nominated.
5. Director Service. The Committee shall review and make recommendations to the Board with regard to length of Board service, director compensation and a retirement policy for members of the Board.
6. Orientation Programs. The Committee shall review and oversee any orientation programs for newly elected members of the Board and continuing director education programs and to assist the Board in the implementation of such programs.
B. Board Composition and Procedures
1. Annual Review of Board Composition. The Committee shall review annually the composition of the Board as a whole and recommend to the Board, if necessary, changes in the composition of the Board and other measures to be taken so that the Board reflects the appropriate balance of knowledge, experience, skills, expertise and diversity required for the Board as a whole and contains at least the minimum number of independent directors required by the Applicable Requirements.
2. Size of Board. The Committee shall review periodically the size of the Board and to recommend to the Board any appropriate changes.
3. Board Meetings. The Committee shall make recommendations on the frequency, content and structure of Board meetings.
4. Other Board Procedures. The Committee shall make recommendations concerning any other aspect of the procedures of the Board that the Committee considers warranted, including but not limited to procedures with respect to the waiver by the Board of any Company rule, guideline, procedure or corporate governance principle.
C. Board Committees
1. Committee Size and Composition. The Committee shall make recommendations to the Board regarding the size and composition of each standing committee of the Board, including the identification of individuals qualified to serve as members of a committee, including the Committee, and to recommend individual directors to fill any vacancy that might occur on a committee, including the Committee.
2. Monitor Committee Functions. The Committee shall monitor the functioning of the committees of the Board and to make recommendations for any changes, including the creation and elimination of committees.
3. Committee Assignments. The Committee shall review annually committee assignments and chairman and the policy with respect to the rotation of members of the committees and/or chairman, and report any recommendations to the Board.
4. Special Committees. The Committee shall recommend that the Board establish such special committees as may be desirable or necessary from time to time in order to address ethical, legal or other matters that may arise. The Committee’s power to make such a recommendation under this Charter shall be without prejudice to the right of any other committee of the Board, or any individual director, to make such a recommendation at any time.
D. Corporate Governance
1. Corporate Governance Guidelines. The Committee shall develop and recommend to the Board, and after adoption by the Board review periodically, Corporate Governance Guidelines setting forth corporate governance principles that are appropriate for the Company and are in compliance with the Applicable Requirements, and recommend to the Board any desirable changes in the Corporate Governance Guidelines.
2. Other Corporate Governance Issues. The Committee shall consider any other corporate governance issues and other matters of Board policy and practices that arise from time to time, and develop appropriate recommendations for the Board.
3. Shareholder Proposals, etc. The Committee shall review and make recommendations to the Board regarding shareholder proposals, significant shareholder relations issues, corporate political contributions and the Company’s charitable contributions.
E. Evaluation of the Board
The Committee shall be responsible for overseeing the evaluation of the Board as a whole and its committees. The Committee shall establish procedures to allow it to exercise this oversight function.
F. Investigations and Studies; Outside Advisers
The Committee may conduct or authorize investigations into or studies of matters within the Committee’s scope of responsibilities, and may retain, at the Company’s expense, such independent counsel or other advisers as it deems necessary. The Committee shall have the sole authority to retain or terminate any firm to be used to identify director candidates and evaluate director compensation, including sole authority to approve a search firm’s fees and other retention terms, such fees to be borne by the Company.
G. Performance Evaluation
The Committee shall annually conduct an evaluation of its own performance and, in light of this, consider changes in its membership, Charter or procedures. The Committee shall report to the Board the results of its evaluation, including recommended membership, Charter and other changes.
H. Additional Duties and Authority
The Committee shall take such other action, have such other authority, have such other authority and perform such other duties and responsibilities, with respect to nominating and corporate governance matters, as may be assigned or delegated to the Committee from time to time by the Board or as designated in the Company’s Corporate Governance Guidelines.
© 2004 Metretek Technologies, Inc.