Common use of Replacement Rights Clause in Contracts

Replacement Rights. If the New Director is unable to serve as a director of the Company due to disability and resigns as a director of the Company, or no longer serves as a director of the Company due to death, in either case, during the Cooperation Period, Bandera shall be permitted to privately identify a replacement candidate who meets the Director Criteria (a “Replacement Nominee”) and, as long as (i) neither ▇▇▇▇▇▇▇ nor any of ▇▇▇▇▇▇▇’s controlled Affiliates or Representatives are in breach of this Agreement (and such breach has not been cured within five (5) days after written notice has been delivered by the Company to Bandera of such breach), (ii) the Replacement Nominee provides to the Company all information concerning the Replacement Nominee that the Company is required to include in its proxy statement in connection with the election of directors at an annual meeting of stockholders, (iii) the Replacement Nominee agrees to comply with the Company Policies (as defined below), (iv) the Replacement Nominee agrees that the he or she is not, and during the Cooperation Period will not, become a party to any agreement, arrangement or understanding (whether written or oral) with any other Person with respect to his or her service as a director of the Company, including any such agreement, arrangement or understanding with respect to how such Replacement Nominee should or would vote or act on any issue or question as a director of the Company, and (v) the Replacement Nominee has been approved by the Nominating Committee and/or the Board after exercising their good-faith customary due diligence review and consistent with the fiduciary duties owed to the Company and its stockholders, the Replacement Nominee shall be appointed to fill the vacancy created by the aforesaid resignation or death of the New Director (any Replacement Nominee so appointed as a director of the Company, a “Replacement Director”), it being understood that ▇▇▇▇▇▇▇ may continue to propose privately additional Replacement Nominees in the event an identified Replacement Nominee is not approved by the Nominating Committee and/or the Board in accordance with the foregoing clause (v) until a Replacement Nominee is appointed to the Board to fill the vacancy created by the aforesaid resignation or death of the New Director. If a Replacement Nominee is appointed to the Board pursuant to this Section 1(c), all references in this Agreement to the New Director shall include such Replacement Director, as applicable.

Replacement Rights. If the New Director is unable to serve as a director of the Company due to disability and resigns as a director of the Company, or no longer serves as a director of the Company due to death, in either case, during the Cooperation Period, Bandera shall be permitted to privately identify a replacement candidate who meets the Director Criteria (a “Replacement Nominee”) and, as long as (i) neither Bandera nor any of Bandera’s control▇▇▇ ▇▇▇▇▇▇▇ nor any of iliates or R▇▇▇▇▇▇▇’s controlled Affiliates or Representatives tatives are in breach of this Agreement (and such breach has not been cured within five (5) days after written notice has been delivered by the Company to Bandera of such breach), (ii) the Replacement Nominee provides to the Company all information concerning the Replacement Nominee that the Company is required to include in its proxy statement in connection with the election of directors at an annual meeting of stockholders, (iii) the Replacement Nominee agrees to comply with the Company Policies (as defined below), (iv) the Replacement Nominee agrees that the he or she is not, and during the Cooperation Period will not, become a party to any agreement, arrangement or understanding (whether written or oral) with any other Person with respect to his or her service as a director of the Company, including any such agreement, arrangement or understanding with respect to how such Replacement Nominee should or would vote or act on any issue or question as a director of the Company, and (v) the Replacement Nominee has been approved by the Nominating Committee and/or the Board after exercising their good-faith customary due diligence review and consistent with the fiduciary duties owed to the Company and its stockholders, the Replacement Nominee shall be appointed to fill the vacancy created by the aforesaid resignation or death of the New Director (any Replacement Nominee so appointed as a director of the Company, a “Replacement Director”), it being understood that ▇▇Bandera may continue to propose priv▇▇▇▇▇ may continue to propose privately additional ▇dditional Replacement Nominees in the event an identified Replacement Nominee is not approved by the Nominating Committee and/or the Board in accordance with the foregoing clause (v) until a Replacement Nominee is appointed to the Board to fill the vacancy created by the aforesaid resignation or death of the New Director. If a Replacement Nominee is appointed to the Board pursuant to this Section 1(c), all references in this Agreement to the New Director shall include such Replacement Director, as applicable.

Replacement Rights. (i) If (A) during the 120-day period commencing on the Effective Date, a New Director is unable to serve as a director of the Company due to death or disability and resigns as ceases to be a director of or (B) during the Companyperiod from the 121st day following the Effective Date until the Termination Date, or no longer serves as any New Director ceases to be a director of the Company for whatever reason (other than due to deatha violation of any applicable law or the Charter, in either caseBylaws or other Company Policy), during the Cooperation Period, Bandera shall be permitted to privately identify then a replacement candidate who meets the Director Criteria (a “Replacement NomineeDirector”) andfor such New Director shall be identified and appointed as follows: (1) If such New Director is an Initial New Director, as long as then the Replacement Director shall be selected by the Board from the remainder of the Donerail Slate (i) neither other than ▇▇▇▇▇▇▇ nor any of ▇▇▇▇▇▇▇’s controlled Affiliates or Representatives are in breach of this Agreement (and such breach has not been cured within five (5) days after written notice has been delivered by the Company to Bandera of such breach); provided, (ii) the Replacement Nominee provides to the Company all information concerning the Replacement Nominee that the Company is required to include in its proxy statement in connection with the election of directors at an annual meeting of stockholders, (iii) the Replacement Nominee agrees to comply with the Company Policies (as defined below), (iv) the Replacement Nominee agrees that the he or she is not, and during the Cooperation Period will not, become a party to any agreement, arrangement or understanding (whether written or oral) with any other Person with respect to his or her service as a director if no member of the Company, including any such agreement, arrangement or understanding with respect to how such Replacement Nominee should or would vote or act on any issue or question as a director of the Company, and Donerail Slate (v) the Replacement Nominee has been approved by the Nominating Committee and/or the Board after exercising their good-faith customary due diligence review and consistent with the fiduciary duties owed to the Company and its stockholders, the Replacement Nominee shall be appointed to fill the vacancy created by the aforesaid resignation or death of the New Director (any Replacement Nominee so appointed as a director of the Company, a “Replacement Director”), it being understood that other than ▇▇▇▇▇▇▇ ▇▇▇▇▇) is available to be appointed, then Donerail Group may continue propose a list of at least three (3) but no more than five (5) new candidates satisfying the criteria set forth in Section 1(a)(v) and the Board shall select one of the candidates as the Replacement Director; (2) If such New Director is the Fourth New Director, then Donerail Group may propose one or more candidates satisfying the criteria set forth in Section 1(a)(v) and the Board shall select one of the candidates as the Replacement Director; provided, that, for the avoidance of doubt, the candidates proposed by Donerail Group may, but do not have to, be affiliated with Donerail Group; or (3) If such New Director is the Fifth New Director, then the Replacement Director shall be identified and appointed pursuant to propose privately additional the terms and procedure set forth in Section 1(a)(iv). Any candidate for Replacement Nominees in Director shall be subject to the event an identified Replacement Nominee is not approved by reasonable approval of the Nominating Committee and/or and the Board, which approval shall occur as soon as practicable following the identification of the candidate and shall not be unreasonably withheld, conditioned or delayed, and such Replacement Director shall be appointed to the Board within five (5) Business Days after the Nominating Committee and the Board have approved of such candidate. In the event the Board or the Nominating Committee determines in good faith not to approve any Replacement Director proposed by the Donerail Parties, the Parties shall follow the same procedure set forth in this Section 1(c)(i) until a Replacement Director is appointed to the Board. Any Replacement Director appointed to replace a New Director shall be treated as a New Director for all purposes of this Agreement and shall have the same classification (Initial New Director, Fourth New Director, or Fifth New Director) as such New Director. For example, a Replacement Director appointed to replace an Initial New Director (or a Replacement Director thereof) shall be treated as an Initial New Director. (ii) Any Replacement Director appointed to the Board in accordance with this Section 1(c) shall be appointed to any applicable committee of the foregoing clause (v) until Board of which the replaced director was a member immediately prior to such director’s ceasing to serve on the Board; provided, that as a condition to such appointment, a Replacement Nominee is appointed Director shall possess the necessary qualifications to serve on the Board applicable committee of the Board. (iii) The Donerail Parties shall not in any way seek to fill procure or influence the vacancy created resignation of any New Director (or Replacement Director), and any violation of this Section 1(c)(iii) will be deemed a material breach by the aforesaid resignation or death Donerail Parties and will entitle the Company to terminate this Agreement pursuant to Section 10(a). (iv) This Section 1(c) (other than Section 1(c)(iii)), including Donerail Group’s right to participate in the identification of Replacement Directors, shall terminate irrevocably if the Donerail Parties cease to beneficially own, in the aggregate, at least 2.0% of the New Directoroutstanding shares of Common Stock. If a Each time Donerail Group exercise its right to participate in the identification of Replacement Nominee is appointed to the Board pursuant to Directors under this Section 1(c), all references in this Agreement it shall provide evidence reasonably satisfactory to the New Director shall include such Replacement DirectorCompany that the Donerail Parties have beneficially owned since the Effective Date and beneficially own at that time, as applicablein the aggregate, at least 2.0% of the outstanding shares of Common Stock.

Replacement Rights. If During the New Director Standstill Period, if the Investor Group (or its members) has not committed a material breach of this Agreement, and as long as the members of the Investor Group or their Affiliates or Associates beneficially own, in the aggregate, at least the lesser of (i) 12.0% of the outstanding shares of common stock of the Company, par value $0.01 per share (the “Common Stock”) and (ii) 17,590,355 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (the “Ownership Minimum”), in the event that an Investor Group Designee (or any replacement for such Investor Group Designee (such replacement, a “Replacement Designee”)) is unable or unwilling to serve as a director of the Company due to disability and director, resigns as a director or is removed as a director, or for any other reason fails to serve or is not serving as a director, then the Investor Group (or ETFS if the Investor Group has been dissolved) shall be entitled to designate, subject to the approval (not to be unreasonably withheld or delayed) of the Nominating Committee, a candidate for Replacement Designee. Any Replacement Designee shall qualify as an Independent Director and shall not be a director, officer, employee, Affiliate or Associate of ETFS or Lion Point. The Nominating Committee shall, in good faith and consistent with its fiduciary duties, approve or deny any candidate for Replacement Designee within five Business Days after such candidate has: (i) successfully completed a customary background check; (ii) completed satisfactory interviews with the existing directors, consistent with the Board’s past practice; (iii) provided the Company with (A) a completed director questionnaire (in the form to be provided by the Company) and (B) such other information and agreements as may be reasonably requested by the Company; and (iv) agreed to take all necessary action to not be considered “overboarded” under the applicable policies of the Company, or no longer serves as Institutional Shareholder Services Inc. (“ISS”) and Glass, Lewis & Co., LLC (“Glass Lewis”). In the event the Nominating Committee declines to approve a director of candidate for Replacement Designee, (x) any agreements provided by such candidate pursuant to the Company due to death, in either case, during the Cooperation Period, Bandera previous sentence shall be permitted to privately identify a replacement candidate who meets the Director Criteria null and void and of no effect and (a “Replacement Nominee”) and, as long as (i) neither ▇▇▇▇▇▇▇ nor any of ▇▇▇▇▇▇▇’s controlled Affiliates or Representatives are in breach of this Agreement (and such breach has not been cured within five (5) days after written notice has been delivered by the Company to Bandera of such breach), (iiy) the Replacement Nominee provides Investor Group may propose one or more additional candidates, subject to the Company all information concerning the approval process described above, until a Replacement Nominee that the Company Designee is required to include in its proxy statement in connection with the election of directors at an annual meeting of stockholders, (iii) the Replacement Nominee agrees to comply with the Company Policies (as defined below), (iv) the Replacement Nominee agrees that the he or she is not, and during the Cooperation Period will not, become a party to any agreement, arrangement or understanding (whether written or oral) with any other Person with respect to his or her service as a director of the Company, including any such agreement, arrangement or understanding with respect to how such Replacement Nominee should or would vote or act on any issue or question as a director of the Company, and (v) the Replacement Nominee has been approved by the Nominating Committee and/or Committee. Following the Board after exercising their good-faith customary due diligence review and consistent with the fiduciary duties owed to the Company and its stockholders, the approval of a candidate for Replacement Nominee shall be appointed to fill the vacancy created by the aforesaid resignation or death of the New Director (any Replacement Nominee so appointed as a director of the Company, a “Replacement Director”), it being understood that ▇▇▇▇▇▇▇ may continue to propose privately additional Replacement Nominees in the event an identified Replacement Nominee is not approved Designee by the Nominating Committee and/or Committee, the Board shall promptly appoint such Replacement Designee to the Board. Upon his or her appointment to the Board, such Replacement Designee shall be deemed an Investor Group Designee for all purposes under this Agreement. Prior to exercising its right to recommend a Replacement Designee for appointment to the Board in accordance with this Section 1(j), the foregoing clause (v) until a Replacement Nominee is appointed Investor Group shall disclose to the Board to fill the vacancy created by the aforesaid resignation or death Company its aggregate beneficial ownership of the New Director. If a Replacement Nominee is appointed to Company’s outstanding Common Stock for purposes of satisfying the Board pursuant to this Section 1(c), all references in this Agreement to the New Director shall include such Replacement Director, as applicableOwnership Minimum.

Replacement Rights. If During the Standstill Period, if the Investor Group (or any of its members) has not committed a material breach of this Agreement, or the Confidentiality Agreement, as determined by an independent, third-party fact finder, as long as the Investor Group beneficially owns, in the aggregate, at least the Ownership Minimum, in the event that the New Director (or any replacement for the New Director (such replacement, a “Replacement Designee”)) is unable no longer able to serve as a director of the Company due to disability death, disability, other incapacity or other compelling reason, then the Investor Group shall be entitled to designate, subject to the approval (not to be unreasonably withheld or delayed) of the Nominating Committee, a candidate for Replacement Designee. Any Replacement Designee shall qualify as an Independent Director and resigns shall be mutually agreeable to the Company and the Investor Group, such agreement not to be unreasonably withheld, conditioned or delayed. The Nominating Committee shall, in good faith and consistent with its fiduciary duties, approve or deny any candidate for Replacement Designee within five Business Days after such candidate has: (i) successfully completed a customary background check of the same type as a director used for all recent directors of the Company; (ii) has, or no longer serves as a director in the reasonable and good faith judgment of the Board, relevant financial and business experience to serve on the Board; and (iii) provided the Company due with (A) a completed director questionnaire (in the form that has been provided to deathBlack Diamond by the Company, in either casewhich is identical to the form used for all recent directors of the Company), during (B) an executed joinder to this Agreement, and the Cooperation PeriodConfidentiality Agreement, Bandera shall be permitted to privately identify a replacement candidate who meets join such Replacement Designee to this Agreement, and the Director Criteria (a “Replacement Nominee”) andConfidentiality Agreement, as long an Investor Group Designee hereunder and thereunder, and an executed Resignation Letter, and (C) such other information and agreements as (i) neither ▇▇▇▇▇▇▇ nor any of ▇▇▇▇▇▇▇’s controlled Affiliates or Representatives are in breach of this Agreement (and such breach has not been cured within five (5) days after written notice has been delivered may be reasonably requested by the Company and is consistent with the Board’s past practice. In the event the Nominating Committee declines to Bandera of such breach)approve a candidate for Replacement Designee, (iix) any agreements provided by such candidate pursuant to the previous sentence shall be null and void and of no effect and (y) the Replacement Nominee provides Investor Group may propose one or more additional candidates, subject to the Company all information concerning the approval process described above, until a Replacement Nominee that the Company Designee is required to include in its proxy statement in connection with the election of directors at an annual meeting of stockholders, (iii) the Replacement Nominee agrees to comply with the Company Policies (as defined below), (iv) the Replacement Nominee agrees that the he or she is not, and during the Cooperation Period will not, become a party to any agreement, arrangement or understanding (whether written or oral) with any other Person with respect to his or her service as a director of the Company, including any such agreement, arrangement or understanding with respect to how such Replacement Nominee should or would vote or act on any issue or question as a director of the Company, and (v) the Replacement Nominee has been approved by the Nominating Committee and/or Committee. Following the approval of a candidate for Replacement Designee by the Nominating Committee, the Board after exercising their good-faith customary due diligence review and consistent with the fiduciary duties owed shall promptly appoint such Replacement Designee to the Company and its stockholdersBoard. Upon his or her appointment to the Board, the such Replacement Nominee Designee shall be appointed to fill the vacancy created by the aforesaid resignation or death of deemed the New Director (any for all purposes under this Agreement. Prior to exercising its right to recommend a Replacement Nominee so appointed as a director of the Company, a “Replacement Director”), it being understood that ▇▇▇▇▇▇▇ may continue Designee for appointment to propose privately additional Replacement Nominees in the event an identified Replacement Nominee is not approved by the Nominating Committee and/or the Board in accordance with this Section 1(i), the foregoing clause (v) until Investor Group shall disclose to the Company its aggregate beneficial ownership of the Company’s outstanding Common Stock for purposes of satisfying the Ownership Minimum. Notwithstanding any of the foregoing, at any time after the 2024 Nomination Date, if the Investor Group becomes entitled to designate a Replacement Nominee Designee pursuant to the terms of this Section 1(i), and if a Replacement Designee is not appointed to the Board to fill the vacancy created by the aforesaid resignation or death within thirty (30) Business Days of the New Director. If date on which the Investor Group recommends a Replacement Nominee is appointed Designee, the Investor Group shall have the right, but not the obligation, to treat, by written notice to the Board pursuant to this Section 1(c)Company, the absence of the Investor Group Designee as a resignation of the Investor Group Designee for all references in this Agreement to purposes hereunder, including, without limitation, the New Director shall include such Replacement Director, as applicabletermination of the Standstill Period.

Replacement Rights. If During the New Director Standstill Period, if the Investor Group (or any of its members) has not committed a material breach of this Agreement (as determined by a court of competent jurisdiction), in the event that the Investor Group Designee (or any replacement for the Investor Group Designee (such replacement, a “Replacement Designee”)) is unable no longer able to serve as a director of the Company due to disability death, disability, inability or otherwise, then the Investor Group shall be entitled to designate, subject to the approval (not to be unreasonably withheld or delayed) of the Nominating Committee, a candidate as the Replacement Designee. Any Replacement Designee shall qualify as an Independent Director. The Nominating Committee shall, in good faith and resigns consistent with its fiduciary duties, approve or deny any candidate for Replacement Designee within five Business Days after such candidate has: (i) successfully completed a customary background check; (ii) completed satisfactory interviews with the existing directors, consistent with the Board’s past practice with all directors sitting on the Board; (iii) provided the Company with (A) a completed director questionnaire (in the form substantially similar to the questionnaire previously provided by the Investor Group Designee), and (B) such other information and agreements as a director may be reasonably requested by the Company; and (iv) agreed to take all necessary action to not be considered “overboarded” under the applicable policies of the Company, or no longer serves Institutional Shareholder Services Inc. (“ISS”) and Glass, Lewis & Co., LLC (“Glass Lewis”) as a director result of such Replacement Designee’s appointment to the Company due Board. In the event the Nominating Committee declines to deathapprove a candidate for Replacement Designee, in either case, during (x) any agreements provided by such candidate pursuant to the Cooperation Period, Bandera previous sentence shall be permitted to privately identify a replacement candidate who meets the Director Criteria null and void and of no effect and (a “Replacement Nominee”) and, as long as (i) neither ▇▇▇▇▇▇▇ nor any of ▇▇▇▇▇▇▇’s controlled Affiliates or Representatives are in breach of this Agreement (and such breach has not been cured within five (5) days after written notice has been delivered by the Company to Bandera of such breach), (iiy) the Replacement Nominee provides Investor Group may propose one or more additional candidates, subject to the Company all information concerning the approval process described above, until a Replacement Nominee that the Company Designee is required to include in its proxy statement in connection with the election of directors at an annual meeting of stockholders, (iii) the Replacement Nominee agrees to comply with the Company Policies (as defined below), (iv) the Replacement Nominee agrees that the he or she is not, and during the Cooperation Period will not, become a party to any agreement, arrangement or understanding (whether written or oral) with any other Person with respect to his or her service as a director of the Company, including any such agreement, arrangement or understanding with respect to how such Replacement Nominee should or would vote or act on any issue or question as a director of the Company, and (v) the Replacement Nominee has been approved by the Nominating Committee and/or Committee. Following the Board after exercising their good-faith customary due diligence review and consistent with the fiduciary duties owed to the Company and its stockholders, the approval of a candidate for Replacement Nominee shall be appointed to fill the vacancy created by the aforesaid resignation or death of the New Director (any Replacement Nominee so appointed as a director of the Company, a “Replacement Director”), it being understood that ▇▇▇▇▇▇▇ may continue to propose privately additional Replacement Nominees in the event an identified Replacement Nominee is not approved Designee by the Nominating Committee and/or Committee, the Board in accordance with the foregoing clause (v) until a shall promptly appoint such Replacement Nominee is appointed Designee to the Board to fill the vacancy created by the aforesaid resignation Board. Upon his or death of the New Director. If a Replacement Nominee is appointed her appointment to the Board pursuant to this Section 1(c)Board, all references in this Agreement to the New Director shall include such Replacement Director, as applicableDesignee shall be deemed the Investor Group Designee for all purposes under this Agreement.