Exhibit 99.3
Form 8-K
Viking Systems, Inc.
File No. 000-49636
VIKING SYSTEMS, INC.
NOMINATING AND CORPORATE GOVERNANCE
COMMITTEE CHARTER
I. Purpose of the Compensation and Corporate Governance Committee
The purpose of the Nominating and Corporate Governance Committee (the
"Committee") of the Board is to assist the Board in discharging the Board's
responsibilities regarding:
(a) the identification of qualified candidates to become Board members;
(b) the selection of nominees for election as directors at the next annual
meeting of stockholders (or special meeting of stockholders at which directors
are to be elected);
(c) the selection of candidates to fill any vacancies on the Board;
(d) the development and recommendation to the Board of a set of corporate
governance guidelines and principles applicable to the Company (the "Corporate
Governance Guidelines"); and
(e) oversight of the evaluation of the board and management.
In addition to the powers and responsibilities expressly delegated to the
Committee in this Charter, the Committee may exercise any other powers and carry
out any other responsibilities delegated to it by the Board from time to time
consistent with the Company's certificate of incorporation or bylaws. The powers
and responsibilities delegated by the Board to the Committee in this Charter or
otherwise shall be exercised and carried out by the Committee as it deems
appropriate without requirement of Board approval, and any decision made by the
Committee (including any decision to exercise or refrain from exercising any of
the powers delegated to the Committee hereunder) shall be at the Committee's
sole discretion. While acting within the scope of the powers and
responsibilities delegated to it, the Committee shall have and may exercise all
the powers and authority of the Board. To the fullest extent permitted by law,
the Committee shall have the power to determine which matters are within the
scope of the powers and responsibilities delegated to it.
II. Membership
The Committee shall be comprised of two or more directors, as determined by the
Board, each of whom (a) satisfies the independence requirements of NASDAQ, and
(b) has experience, in the business judgment of the Board, that would be helpful
in addressing the matters delegated to the Committee. The members of the
Committee, including the Chair of the Committee, shall be appointed by the
Board. Committee members may be removed from the Committee, with or without
cause, by the Board.
III. Meetings and Procedures
The Chair (or in his or her absence, a member designated by the Chair) shall
preside at each meeting of the Committee and set the agendas for Committee
meetings. The Committee shall have the authority to establish its own rules and
procedures for notice and conduct of its meetings so long as they are not
inconsistent with any provisions of the Company's certificate of incorporation
or bylaws that are applicable to the Committee. The Committee shall meet on a
regularly scheduled basis at least two times per year and more frequently as the
Committee deems necessary or desirable.
All non-management directors that are not members of the Committee may attend
and observe meetings of the Committee, but shall not participate in any
discussion or deliberation unless invited to do so by the Committee, and in any
event shall not be entitled to vote. The Committee may, at its discretion,
include in its meetings members of the Company's management or any other person
whose presence the Committee believes to be desirable and appropriate.
Notwithstanding the foregoing, the Committee may exclude from its meetings any
person it deems appropriate, including, but not limited to, any non-management
director that is not a member of the Committee.
The Committee may retain any independent counsel, experts or advisors that the
Committee believes to be necessary, desirable or appropriate. The Committee may
also use the services of the Company's regular legal counsel or other advisors
to the Company. The Company shall provide for appropriate funding, as determined
by the Committee, for payment of compensation to any such persons employed by
the Committee and for ordinary administrative expenses of the Committee that are
necessary or appropriate in carrying out its duties. The Committee shall have
sole authority to retain and terminate any search firm to be used to identify
director candidates, including sole authority to approve such search firm's fees
and other retention terms.
The Chair shall report to the Board regarding the activities of the Committee at
appropriate times and as otherwise requested by the Chairman of the Board. The
Committee may conduct or authorize investigations into any matters within the
scope of the powers and responsibilities delegated to the Committee.
IV. Duties and Responsibilities
1. (a) At an appropriate time prior to each annual meeting of stockholders
at which directors are to be elected or reelected, the Committee shall (i)
review with the Board the appropriate characteristics, skills and experience
required for the Board as a whole and its individual members and (ii) recommend
to the Board for nomination by the Board such candidates as the Committee, in
the exercise of its judgment, has found to be well qualified and willing and
available to serve.
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(b) At an appropriate time after a vacancy arises on the Board or a
director advises the Board of his or her intention to resign, the Committee
shall recommend to the Board for appointment by the Board to fill such vacancy,
such prospective member of the Board as the Committee, in the exercise of its
judgment, has found to be well qualified and willing and available to serve.
(c) For purposes of (a) and (b) above, each candidate nominee must possess
fundamental qualities of intelligence, honesty, good judgment, high ethics and
standards of integrity, fairness and responsibility and the Committee may
consider the following criteria, among others the Committee shall deem
appropriate, in recommending candidates for election to the Board:
(i) personal and professional integrity, ethics and values;
(ii) experience in corporate management, such as serving as an officer
or former officer of a publicly held company;
(iii) experience in the Company's industry and with relevant social
policy concerns;
(iv) experience as a board member of another publicly held company;
(v) the nature of and time involved in a candidate's service on other
boards and/or committees;
(vi) academic expertise in an area of the Company's operations;
(vii) the candidate's compliance, or ability to comply, with the
Company's stock ownership policy for directors, if any, as set forth
in the Corporate Governance Guidelines; and
(viii) practical and mature business judgment;
(d) The foregoing notwithstanding, if the Company is legally required by
contract or otherwise to permit a third party to designate one or more of the
directors to be elected or appointed (for example, pursuant to rights contained
in a Certificate of Designation of a class of preferred stock to elect one or
more directors upon a dividend default), then the nomination or appointment of
such directors shall be governed by such requirements.
2. At an appropriate time prior to each annual meeting of stockholders at
which directors are to be reelected, the Committee shall review the performance
of each current director (including, without limitation, the director's past
attendance at meetings and participation in and contribution to the activities
of the Board) and shall consider the results of such evaluation when determining
whether or not to recommend the nomination of such director for an additional
term.
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3. In appropriate circumstances, the Committee, in its discretion, shall
consider and may recommend the removal of a director for cause, in accordance
with the applicable provisions of the Company's certificate of incorporation,
bylaws and Corporate Governance Guidelines.
4. The Committee shall establish evaluation criteria and implement a
process for the Board's annual review of its performance (including its
composition and organization) and the performance of management. The Committee
shall oversee the Board in such annual reviews and will make appropriate
recommendations to improve performance. The Committee's annual assessment should
include a review of any areas in which the Board or management believes the
Board can make a better contribution to the governance of the Company, as well
as a review of the committee structure and an assessment of the Board's
compliance with the principles set forth in the Corporate Governance Guidelines.
The purpose of the review will be to improve the performance of the Board as a
unit, and not to target the performance of any individual Board member. The
Committee will utilize the results of the Board evaluation process in assessing
and determining the characteristics and critical skills required of prospective
candidates for election to the Board.
5. The Committee may make recommendations to the Board regarding governance
matters, including, but not limited to, the Company's certificate of
incorporation, bylaws, this Charter, the charters of the Company's other Board
committees, the Statement of Corporate Policy and Code of Conduct and the
Corporate Governance Guidelines.
6. The Committee shall develop and recommend to the Board the Corporate
Governance Guidelines. Thereafter, the Committee shall be responsible for
reviewing and recommending to the Board, on a regular basis, revisions to such
Corporate Governance Guidelines.
7. The Committee shall develop and recommend to the Board a policy
regarding the consideration of director candidates recommended by the Company's
security holders and procedures for submission by security holders of director
nominee recommendations.
8. The Committee shall recommend to the Board directors to serve on the
Board's various committees. Such recommendations shall be based on the
requirements set forth in the Corporate Governance Guidelines and the applicable
committee charter and such other criteria as the Committee shall determine in
its business judgment.
9. The Committee shall work on a periodic basis with the Chairman of the
Board and the Chief Executive Officer (the "CEO") of the Company to review,
maintain and revise, if necessary, the Company's succession plan upon the CEO's
retirement and in the event of an unexpected occurrence.
10. When a director, including any director who is an officer or employee
of the Company, resigns or materially changes his or her position with his or
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her employer, the Committee shall recommend to the Board whether the Board
should accept or reject such director's resignation from the Board.
11. As necessary, the Committee shall consider and recommend to the Board
if the Company should have a general policy that no director may stand for
election to the Board after
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