For the lack of a third member of the PDS BoD..
"The vacancy arose under the following circumstances: during the course of
rancorous litigation initiated by PTSC Directors Felcyn and Johnson against TPL in April of
2010, the five-year term of the Independent Member of the PDS Management Committee Robert Neilson expired, and PTSC’s Directors (not TPL) refused to reengage his services on the
financial basis he was proposing. The Independent Member position has remained vacant ever
since with no effort by PTSC Directors to exercise their right under Article 4 of the PDS
Operating Agreement to cause the appointment of an Independent Member by employing an
Arbitrator to make the selection".
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4.1 Management of the Company shall be managed by a management committee (the
"Management Committee") consisting of three (3) Managers, which number may not be changed without the written consent of the Members holding at least 75% of the Percentage Interests.
4.2 Appointment of Management Committee.
(a) Patriot Appointment. Patriot shall have the right to appoint
one (1) Manager to the Management Committee (the "Patriot Appointee").
(b) TPL Appointment. TPL shall have the right to appoint one (1)
Manager to the Management Committee (the "TPL Appointee").
Note:
Independent Manager "Robert K. Neilson" is also Senior Vice President of TPL, and is also President of "PDS." Dan Leckrone, Chairman of TPL is the other member of the Management Committee, and Carlton Johnson represents PTSC. It only takes two (2) managers to be present at a meeting of the "Management Committee" to establish a quorum for the transaction of business.
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"Independent Manager. The Patriot Appointee and the TPL
Appointee shall work together in good faith to appoint a mutually acceptable
third Manager (the "Independent Manager"). In the event that the Patriot
Appointee and the TPL Appointee are unable to appoint a mutually acceptable
Manager within 10 days of the resignation or removal of the Independent Manager,
either party may apply to the American Arbitration Association ("AAA") in Santa
Clara County, or the nearest county thereto, if necessary, for the appointment
of the Independent Manager, and the AAA shall select the Independent Manager
from a list of no more than three persons submitted by each party. All costs
associated with the selection of the Independent Manager by the AAA pursuant to
this Section 4.2(c) shall be paid by David H. Pohl".
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