Common use of Board Representatives Clause in Contracts

Board Representatives. Subject to the limitations set forth in this Section 10, the Boise Majority Holders shall have the right to designate not less than the Boise Applicable Number of representatives for election to the Board of the Company (individually a “Boise Board Representative” and collectively the “Boise Board Representatives”) and the Aldabra Majority Holders shall have the right to designate not less than the Aldabra Applicable Number of representatives for election to the Board of the Company (individually an “Aldabra Board Representative” and collectively the “Aldabra Board Representatives”); provided that (x) from time to time, the Boise Majority Holders may elect to designate any lesser number of representatives for election to the Board of the Company (e.g., a number of representatives less than the Boise Applicable Number including, if the Boise Majority Holders so elect, zero representatives), and any such election by the Boise Majority Holders to designate any lesser number of representatives shall in no event operate as a waiver of their right hereunder to thereafter designate not less than the Boise Applicable Number of representatives for election to the Board of the Company or otherwise operate to preclude the Boise Majority Holders from fully exercising their rights under this Section 10 and (y) from time to time, the Aldabra Majority Holders may elect to designate any lesser number of representatives for election to the Board of the Company (e.g., a number of representatives less than the Aldabra Applicable Number including, if the Aldabra Majority Holders so elect, zero representatives), and any such election by the Aldabra Majority Holders to designate any lesser number of representatives shall in no event operate as a waiver of their right hereunder to thereafter designate not less than the Aldabra Applicable Number of representatives for election to the Board of the Company or otherwise operate to preclude the Aldabra Majority Holders from fully exercising their rights under this Section 10. The terms and conditions governing the election, term of office, filling of vacancies and other features of such directorships shall be as follows:

Board Representatives. Subject In the event Lender shall become the holder of shares representing 20% or more of the voting power of PDGE, whether as a result of the conversion of any Loan or the exercise of any Warrant, in whole or in part, or otherwise, the PDGE Debtor Parties shall take such action as may be necessary to include on the Board of Directors of PDGE, at Lender's option and request, one or more directors nominated and appointed by Lender, such directors to hold office until the next annual meeting of shareholders of PDGE at which directors are to be elected. Further, the failure of the Board of Directors of PDGE to nominate any nominee proposed by Lender for election at such annual meeting or any other meeting at which directors are to be elected shall constitute an Event of Default. The number of directors to be appointed by Lender shall reflect, as nearly as possible, a percentage of the entire membership of the Board of Directors of PDGE represented by Lender's nominees equal to the limitations set forth in this Section 10, the Boise Majority Holders percentage of PDGE's then issued and outstanding shares represented by all shares of common stock of PDGE owned by Lender. The director(s) shall have the right to designate not less than the Boise Applicable Number of representatives for election be appointed to the Board of Directors by the Company existing members of the Board of Directors within six (individually 6) Business Days of Lender's demand for such director(s) appointment delivered to PDGE. The Bylaws of PDGE shall provide at all times for a “Boise Board Representative” and collectively sufficient number of authorized directors to accommodate the “Boise Board Representatives”) and the Aldabra Majority Holders shall have the right to designate not less than the Aldabra Applicable Number of representatives for election appointment to the Board of Directors of the Company (individually an “Aldabra directors to be nominated by Lender which may represent up to a majority of the entire Board Representative” and collectively the “Aldabra Board Representatives”); provided that (x) of Directors as constituted from time to time. The obligations of the PDGE Debtor Parties hereunder shall survive any repayment of the Loan occurring by reason of the conversion thereof into shares of common stock of PDGE but not any repayment for cash. The obligations of the PDGE Debtor Parties hereunder shall be specifically enforceable by Lender, it being agreed that no adequate remedy at law shall exist for the Boise Majority Holders may elect breach of their obligation to designate any lesser number of representatives for election cause Lender to be afforded representation on the Board of the Company (e.g., a number Directors of representatives less than the Boise Applicable Number including, if the Boise Majority Holders so elect, zero representatives), and any such election by the Boise Majority Holders to designate any lesser number of representatives shall in no event operate as a waiver of their right hereunder to thereafter designate not less than the Boise Applicable Number of representatives for election to the Board of the Company or otherwise operate to preclude the Boise Majority Holders from fully exercising their rights under this Section 10 and (y) from time to time, the Aldabra Majority Holders may elect to designate any lesser number of representatives for election to the Board of the Company (e.g., a number of representatives less than the Aldabra Applicable Number including, if the Aldabra Majority Holders so elect, zero representatives), and any such election by the Aldabra Majority Holders to designate any lesser number of representatives shall in no event operate as a waiver of their right hereunder to thereafter designate not less than the Aldabra Applicable Number of representatives for election to the Board of the Company or otherwise operate to preclude the Aldabra Majority Holders from fully exercising their rights under this Section 10. The terms and conditions governing the election, term of office, filling of vacancies and other features of such directorships shall be as follows:PDGE.

Board Representatives. Subject (a) The Designating Lender shall be entitled to appoint two (2) members of the Holdings’ Board of Directors as soon as practical after the First Amendment Effective Date. If not provided to the limitations set forth Borrower on or prior to the execution of the First Amendment, as soon as practical after the First Amendment Effective Date, the Designating Lender as of the First Amendment Effective Date shall provide to the Nominating and Corporate Governance Committee of the Board of Directors of Holdings (the “Nominating Committee”) in writing the names of three Qualifying Independent Director Nominees along with reasonable background data on each such nominee (such notice, a “Nomination Notice”), each of which nominees shall (i) make himself or herself available on reasonable notice for a telephonic interview with the Nominating Committee regarding such nominee’s qualifications and the proxy disclosure that will be required for such nominee and (ii) confirm in writing that the nominee will serve if elected to the board of directors of Holdings. Within thirty (30) days of receipt of such Nomination Notice, Holdings shall cause two of the Qualifying Independent Director Nominees to be named to the board of directors of Holdings (any such director, a “Designated Director”); provided, that an equitable extension in this Section 10period will be imposed in the event of delay by the nominee in submitting to an interview of the Nominating Committee or a nominee is determined not to be a Qualifying Independent Director. One of the Designated Directors shall be appointed to the Restructuring Committee of the Board of Directors and one of the Designated Directors shall be appointed to the Audit Committee of the Board of Directors, subject to the candidate meeting the NASDAQ requirements and the requirements specified in Rule 10A-3 under the Securities Exchange Act of 1934 (including without limitation Rule 10A-3(b)(1) without regard to any of the exemptions therefrom) for inclusion on the Audit Committee. (b) If the Borrower has not effected either (i) a Threshold Notes Conversion Event or a Debt Reduction Event by the First Conversion Deadline or (ii) the Extended Threshold Notes Conversion Event by July 22, 2009, then, on or after July 22, 2009, the Boise Majority Holders Designating Lender as of such date shall be entitled to appoint an additional member of the Holdings’ Board of Directors. The Designating Lender may promptly thereafter provide to the Nominating Committee in writing the names of at least two Qualifying Independent Director Nominees along with reasonable background data on each such nominee, each of which nominees shall (x) make himself or herself available on reasonable notice for a telephonic interview with the Nominating Committee regarding such nominee’s qualifications and the proxy disclosure that will be required for such nominee and (y) confirm in writing that the nominee will serve if elected to the Board. Within thirty (30) days of receipt of such Nomination Notice, Holdings shall cause one of the Qualifying Independent Director Nominees to be named to the board of directors of Holdings as a Designated Director, which election may be accomplished by increasing the size of the board of directors of Holdings from seven (7) members to eight (8); provided, that an equitable extension in this period will be imposed in the event of delay by the nominee in submitting to an interview of the Nominating Committee or a nominee is determined not to be a Qualifying Independent Director. (c) On or after January 15 and prior to February 15 of each year, the Designating Lender as of January 15 of such year may, in its discretion, advise the Nominating Committee of any change it desires to make in the identity of any Designated Director for purposes of the directors to be nominated by the board of directors at Holdings’ annual meeting of stockholders. In the event any such change is desired, the Designating Lender as of January 15 of such year shall, no later than February 15 of such year, provide the Nominating Committee with the names of at least two Qualifying Independent Director Nominees for each directorship to be designated, along with reasonable background data on each such nominee. Each Qualifying Independent Director Nominee shall (i) make himself or herself available on reasonable notice for a telephonic interview with the Nominating Committee regarding such Qualifying Independent Director Nominee’s qualifications and the proxy disclosure that will be required for such Qualifying Independent Director Nominee and (ii) confirm in writing that such Qualifying Independent Director Nominee will serve if elected to the board of directors. Holdings shall cause any such new nominees, or if not replaced, the sitting Designated Directors, to be included among management’s nominees for election to the board of directors at the annual meeting of stockholders. (d) In the event that any Designated Director ceases to be a member of the board of directors of Holdings for any reason, such director shall promptly be replaced by following the procedures established in Section 5.16(a) or (b), as appropriate. (e) Holdings further covenants that (i) for so long as its obligations under Section 5.16(a) continue in effect, at no time from and after Holding’s next annual meeting of stockholders shall the number of directors on its board of directors be more than seven (7) directors, and (ii) for so long as its obligations under Section 5.16(b) continue in effect, at no time shall the number of directors on its board of directors be more than eight (8) directors, in each instance, without the consent of the Required Qualifying Lenders; provided, however, that in connection with a new investment in the equity securities of Holdings pursuant to which Holdings has received at least $50,000,000 in gross cash proceeds from the issuance of Qualified Securities the net proceeds of which was applied to reduce the amount of the Loans at par or pursuant to a dutch auction made available to all Lenders and conducted in accordance with procedures reasonably acceptable to the Required Lenders (a “Board Expansion Event”), the board may be further expanded to provide any such new investor with representation on the board of directors approximately proportionate with the ownership position acquired by such investor; provided, however, that the board shall not be expanded beyond ten members. The action to elect a Designated Director to the board of directors of Holdings or the nomination of any such director for election at any meeting of stockholders of Holdings shall be approved solely by the members of the board of directors excluding any then sitting Designated Director provided that, at all times, such action shall be taken by not less than 66-2/3% of the Continuing Directors then in office. No Designated Director shall be a member of the Nominating and Corporate Governance Committee. (f) Notwithstanding any provision of this Section 5.16 to the contrary, at such time that the total principal amount of Loans outstanding and the other Obligations under the Loan Documents (other than obligations under or in respect of Swap Agreements) shall have been paid in full, whether pursuant to a refinancing, replacement facility or otherwise, the total number of Designated Directors appointed pursuant to this Section 5.16 shall be reduced to zero, and Holdings shall no longer have any obligation to comply with the provisions of this Section 5.16. Upon election, each Designated Director will agree in writing to submit his or her resignation from the board of directors of Holdings upon the request of the Nominating and Corporate Governance Committee if this Section 5.16(f) results in a reduction in the number of Designated Directors and the resignation of such director is intended to result in compliance with the terms hereof. (g) For the avoidance of doubt, the only Person with the right to designate not less than a Designated Director hereunder is the Boise Applicable Number Designating Lender at the relevant time of representatives for election determination and neither the Designating Lender, the Borrower nor Holdings shall be required to take direction from any other Person, including any other Lender, with respect to such matter. (h) Holdings and the Board Borrower acknowledge that the Lenders will be irreparably damaged if any of the Company (individually a “Boise Board Representative” provisions of this Section 5.16 are not performed in accordance with their specific terms in all material respects or are otherwise breached. Accordingly, it is agreed that Lenders shall be entitled to an injunction to prevent breaches of this Section 5.16 and collectively to specific enforcement of this Agreement and its terms and provisions in any action instituted in any court of the “Boise Board Representatives”) and United States or any state having subject matter jurisdiction, in addition to any other remedy to which the Aldabra Majority Holders shall have parties hereto may be entitled at law or in equity including, without limitation the right to designate not less than declare an Event of Default under the Aldabra Applicable Number Loan Agreement. No bond or other similar undertaking shall be required of representatives for election to the Board of the Company (individually an “Aldabra Board Representative” and collectively the “Aldabra Board Representatives”); provided that (x) from time to time, the Boise Majority Holders may elect to designate any lesser number of representatives for election to the Board of the Company (e.g., a number of representatives less than the Boise Applicable Number including, if the Boise Majority Holders so elect, zero representatives), and any such election by the Boise Majority Holders to designate any lesser number of representatives shall in no event operate as a waiver of their right hereunder to thereafter designate not less than the Boise Applicable Number of representatives for election to the Board of the Company or otherwise operate to preclude the Boise Majority Holders from fully exercising their rights party seeking relief under this Section 10 and (y) from time to time, the Aldabra Majority Holders may elect to designate any lesser number of representatives for election to the Board of the Company (e.g., a number of representatives less than the Aldabra Applicable Number including, if the Aldabra Majority Holders so elect, zero representatives), and any such election by the Aldabra Majority Holders to designate any lesser number of representatives shall in no event operate as a waiver of their right hereunder to thereafter designate not less than the Aldabra Applicable Number of representatives for election to the Board of the Company or otherwise operate to preclude the Aldabra Majority Holders from fully exercising their rights under this Section 10. The terms and conditions governing the election, term of office, filling of vacancies and other features of such directorships shall be as follows:Section.”.

Board Representatives. Subject to (a) Following the limitations set forth in this Section 10Closing, the Boise Majority Holders shall have the right to designate not less than the Boise Applicable Number of representatives for election to the Board Company will promptly cause an individual designated by each of the Company Co-Lead Investors who, together with Affiliates of such Co-Lead Investor (individually collectively, a “Boise Designating Purchaser”; and each of the individuals designated by the Designating Purchasers, a “Board Representative” and collectively the “Boise Board Representatives”), holds, in the aggregate, shares of Common Stock equal to at least 4.9% of shares of Common Stock then outstanding (the “Minimum Ownership Interest”) to be elected or appointed to the Board, subject to satisfactory completion of the Board’s due diligence and the Aldabra Majority Holders satisfaction of all legal and regulatory requirements regarding service and election or appointment as a director of the Company; provided that the right of each Designating Purchaser to designate a Board Representative will continue only so long as such Designating Purchaser continues to hold the Minimum Ownership Interest. In addition, each Designating Purchaser shall have the right to designate not less than a Board Representative for the Aldabra Applicable Number Bank Board for three years following the Closing and the Company will cause such Board Representative to be elected or appointed to the Bank Board, subject to satisfactory completion of representatives for the Board’s due diligence and the satisfaction of all legal and regulatory requirements regarding service and election or appointment of such Board Representative as a director of the Bank Board. For so long as any Designating Purchaser holds a Minimum Ownership Interest, the Company will recommend to its shareholders the election of the Board Representative designated by such Designating Purchaser to the Board at all of the Company’s meetings of shareholders at which such Board Representative’s class of Board members are to be elected, subject to satisfaction of all legal requirements regarding service and election or appointment as a director of the Company. If a Designating Purchaser no longer holds a Minimum Ownership Interest, such Designating Purchaser (i) shall promptly notify the Company of such fact, (ii) will have no further rights under Section 4.20(a) through (c), and (iii) at the written request of the Board, shall use commercially reasonable efforts to cause the Board Representative designated by such Designating Purchaser to resign from the Board and the Bank Board as promptly as possible thereafter. If the Board Representative designated by a Co-Lead Investor is not elected or appointed to the Board at the next annual or special meeting of shareholders of the Company held after the Closing, then such Co-Lead Investor shall have the right to appoint one non-voting observer to attend all Board meetings, receive materials provided to the Board and participate in Board discussions, subject to such observer entering into a customary confidentiality agreement with the Company; provided, however, that such non-voting observer shall be excluded from Board meetings and discussions in which confidential supervisory information (including “confidential supervisory information” as defined in 12 C.F.R. § 261.2(b), “non-public OCC information” as defined in 12 C.F.R. § 4.32(b) and “exempt information” as defined in 12 C.F.R. § 309.5(g)) is discussed and shall not receive Board materials that would disclose confidential supervisory information. (b) Subject to applicable Law and requirements set forth in Section 4.20(a), each Board Representative shall be one of the Company’s nominees to serve on the Board. The Company shall use its reasonable best efforts to have each Board Representative elected as a director of the Company by the shareholders of the Company, and the Company shall solicit proxies for the Board Representatives to the same extent as it does for any of its other Company nominees to the Board. (c) Subject to Section 4.20(a), upon the death, resignation, retirement, disqualification, or removal from office as a member of the Board or the Bank Board of any Board Representative, the Designating Purchaser that designated such Board Representative shall have the right to designate the replacement for such Board Representative, provided such replacement satisfies all legal and regulatory requirements regarding service and election or appointment as a director of the Board and the Bank Board and satisfactorily completes the Board’s due diligence process. Each of the Board and the Bank Board shall use its reasonable best efforts to take all action required to fill the vacancy resulting therefrom with such person (including such person, subject to applicable Law, being one of the Company’s nominees to serve on the Board), using reasonable best efforts to have such person elected as director of the Company by the shareholders of the Company and the Company soliciting proxies for such person to the same extent as it does for any of its other nominees to the Board, as the case may be. (d) Each Board Representative shall be entitled to indemnification and insurance coverage in connection with his or her role as a director to the same extent as other directors on the Board and the Bank Board. The Company shall notify the Board Representatives of all regular meetings and special meetings of the Board and the Bank Board and of all regular and special meetings of any committee of the Board or the Bank Board, as applicable. The Company shall provide the Board Representatives with copies of all notices, minutes, consents and other material that it provides to all members of the Board and the Bank Board, as applicable, at the same time such materials are provided to the other respective members. (e) The Company acknowledges that the Board Representatives may have certain rights to indemnification, advancement of expenses and/or insurance provided by one or more of the Designating Purchasers (collectively, the “Designating Purchaser Indemnitors”). The Company hereby agrees that, with respect to a claim by a Board Representative for indemnification arising out his or her service as a director of the Company (individually an “Aldabra Board Representative” and collectively 1) it is the “Aldabra Board Representatives”); provided that indemnitor of first resort (x) from time to timei.e., the Boise Majority Holders may elect to designate any lesser number of representatives for election its obligations to the Board Representatives with respect to indemnification, advancement of expenses and/or insurance (which obligations shall be the same as, but in no event greater than, any such obligations to members of the Company (e.g., a number Board) are primary and any obligation of representatives less than the Boise Applicable Number including, if Designating Purchaser Indemnitors to advance expenses or to provide indemnification for the Boise Majority Holders so elect, zero representativessame expenses or liabilities incurred by the Board Representatives are secondary), and (2) the Designating Purchaser Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of the Board Representatives against the Company. (f) Notwithstanding anything to the contrary contained in this Section 4.20, the Board and the Bank Board may exclude the Board Representatives from portions of meetings of the Board and the Bank Board, to the extent that the Board or the Bank Board, as applicable, will be discussing (i) any such election matters directly related to the Designating Purchasers, including under the Transaction Documents, or any of the rights or obligations of the Designating Purchasers under any of the Transaction Documents or (ii) any exam or other confidential correspondence with the Federal Reserve, the FDIC or the OCC, in each case to the extent required by applicable Law as reasonably determined by the Boise Majority Holders Company’s legal counsel. (g) Each Designating Purchaser covenants and agrees to designate hold any lesser number of representatives shall information obtained from its Board Representative in no event operate as a waiver of their right hereunder to thereafter designate not less than the Boise Applicable Number of representatives for election confidence, in each case except to the Board extent that such information (i) was previously known by or in the possession of such party on a nonconfidential basis, (ii) is or becomes in the public domain through no fault of such party, (iii) is later lawfully acquired from other sources by the party to which it was furnished, or (iv) is independently developed by such party without the use of such information. Each of the Company or otherwise operate parties to preclude the Boise Majority Holders from fully exercising their rights under this Section 10 and (y) from time to time, the Aldabra Majority Holders may elect to designate any lesser number of representatives for election to the Board of the Company (e.g., a number of representatives less than the Aldabra Applicable Number including, if the Aldabra Majority Holders so elect, zero representatives)Agreement hereby acknowledges that they are aware, and will ensure that their representatives and Affiliates are aware, that the United States securities laws prohibit any such election by the Aldabra Majority Holders to designate any lesser number of representatives shall in no event operate as person who has material non-public information about a waiver of their right hereunder to thereafter designate not less than the Aldabra Applicable Number of representatives for election to the Board of the Company company from purchasing or otherwise operate to preclude the Aldabra Majority Holders from fully exercising their rights under this Section 10. The terms and conditions governing the election, term of office, filling of vacancies and other features selling securities of such directorships shall be as follows:company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.