With respect to PDS Management Committee make up
posted on
Apr 13, 2009 01:23PM
Thanks for the clear and direct response to my inquiry. It is very much appreciated.
I am relieved to hear that the Company believes that its interests are properly represented at this time and that PDS and its management committee operate in a manner that is fair and consistent with the operating agreement. As a shareholder, I obviously have very limited knowledge of the inner workings of PTSC, and even less of PDS. This is especially so considering PTSC’s unwillingness or inability to provide transparency into the types and terms of the more recent license agreements being made. Therefore, my knowledge of any specific action or inaction by the Management Committee, considering the secrecy with which PTSC holds this information, is by default, absent.
I can only surmise that due to PTSC’s consistent share price degradation even in the face of every new license signed and announced, something is not necessarily working in the interests of all of the shareholders (which should be Patriot’s interest by definition). What exactly that is, I can only look to the publicly disclosed information and make educated inquiries. Clearly, the obvious “dependence” of the “Independent” Manager is an issue of concern, especially if the management committee’s work is done by majority rule, versus unanimous agreement. Is a simple majority required, or must decisions be made unanimously?
While I can appreciate that nothing may have happened to date that would cause PTSC concern, considering the Management Committee responsibilities listed below, especially items (f) & (g) and the fact that it is a three person committee, how can PTSC assure that this will continue in the future? Considering that per the operating agreement, business operations must progress unchanged until the dispute resolution process has taken its full course, what measures does PTSC have at its disposal, (short of disruption of the entire agreement and the likely jeopardizing of its primary income source), that would allow it to take swift action to interrupt a future detrimental action by a majority vote by Mr. Leckrone and Mr. Neilson, before the effect of those decisions becomes irreversibly detrimental to PTSC. Granted, this may seem hyperbole. However, since these are actions taken in private, it seems clear that the “Independence” of the Independent Manager and the guidelines associated with that position were put in place with the intent that neither side have majority representation on the committee, as a means of protection one against the other, among other reasons. This would seem obvious to anyone knowledgeable of the history of often contentious relationship between TPL and PTSC. Allowing that imbalance to continue on a body that has the ability make decisions that may be detrimental to PTSC and in favor of TPL, at best seems risky, and at worst leaves the PTSC’s MMP revenue source at risk and its officers and directors open to charges of breaching their fiduciary responsibilities.
For these basic reasons, I would hope that PTSC would reconsider the make up of the PDS Management Committee at some point in the near future. Thank you for your consideration.
4.3 Responsibilities of the Management Committee. The Management Committee shall have the responsibility, on behalf of the Company:
(a) To approve the Annual Business Plan, as well as any modifications thereto.
(b) To make any distributions to Members pursuant to Article VI.
(c) To make any filings with any Governmental Authority on behalf of the Company.
(d) To purchase liability and other insurance to protect the Company's properties and business and to purchase liability insurance to indemnify or otherwise protect the Members, Managers, officers and employees of the Company.
(e) To make certain decisions regarding tax matters pursuant to the terms of this Operating Agreement.
(f) To approve the execution by TPL pursuant to the Commercialization Agreement of any license agreement, infringement claim settlement or other agreement with respect to the MSD Patents, the proposed terms of which do not fall within the guidelines for allowable license agreements and infringement claim settlements set forth in Exhibit C to the Commercialization Agreement.
(g) To approve any modifications, amendments or waivers of the Commercialization Agreement, and any of the license or other agreements referred to therein to which the Company is a party.
(h) To take or authorize such other actions on behalf of the Company as are consistent with Applicable Law and the fiduciary duties of the Managers and the Members.
Sent:
Thursday, May 01, 2008 2:03 PM
Mr. Neilson remains a member of the management committee. The Company believes that its interests are properly represented at PDS and that it operates in a manner that is fair and consistent with the Operating Agreement. If there is a specific example where you believe Patriot's interests have been compromised by some action or inaction by the Management Committee at PDS, please bring this to our attention and we will certainly respond to your concern.
Regards,
Ken AuYeung, Hawk Associates Inc.
From: Investor Relations
Sent: Wed 4/30/2008 3:35 PM
Subject: RE: PDS Management Commitee makeup
Forwarding your email to the company.
Regards,
Ken AuYeung, Hawk Associates Inc.
Sent: Wed 4/30/2008 2:18 PM
To: Investor Relations; Rick Goerner
Subject: PDS Management Commitee makeup
Per the operating agreement for P-Newco, (now PDS), the management committee was to be made up of a PTSC appointee, a TPL appointee, and an “Independent Manager” mutually acceptable to both companies. Robert K. Neilson was the first Independent Manager appointment. Considering Mr. Neilson has become a Senior Vice President of the TPL Group, and the Operating Agreement’s reason (d) under Removal of the Independent Manager cited here:
(d) demonstrable favoritism toward the views of one of the Members of the Management Committee, rather than the strategic principles articulated in the then current Annual Business Plan.
It is clear that Mr. Neilson’s participation in the Management Committee is a conflict of interests, as he is beholden to TPL Group’s interests as their employee and to Mr. Leckrone as his employee.
Has Mr. Neilson been removed as is required by the Operating Agreement. If so, when did this take place and who has replaced him. If not, when can we expect that he will be removed and a new Independent Manager be appointed?