Common use of Replacement Rights Clause in Contracts

Replacement Rights. During the 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, 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, Institutional Shareholder Services Inc. (“ISS”) and Glass, Lewis & Co., LLC (“Glass Lewis”). In the event the Nominating Committee declines to approve a candidate for Replacement Designee, (x) any agreements provided by such candidate pursuant to the previous sentence shall be null and void and of no effect and (y) the Investor Group may propose one or more additional candidates, subject to the approval process described above, until a Replacement Designee is approved by the Nominating Committee. Following the approval of a candidate for Replacement Designee by the Nominating 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 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.

Replacement Rights. During the Standstill Period, if the Investor Group (or any of its members) has not committed a material breach of this Agreement, and Agreement (as long as the members determined by a court 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”competent jurisdiction), in the event that an the Investor Group Designee (or any replacement for such the Investor Group Designee (such replacement, a “Replacement Designee”)) is unable or unwilling no longer able to serve as a directordirector of the Company due to death, resigns as a director disability, inability or is removed as a director, or for any other reason fails to serve or is not serving as a directorotherwise, 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 as the 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 PointDirector. 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 practicepractice with all directors sitting on the Board; (iii) provided the Company with (A) a completed director questionnaire (in the form substantially similar to be the questionnaire previously provided by the Company) Investor Group Designee), 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, Institutional Shareholder Services Inc. (“ISS”) and Glass, Lewis & Co., LLC (“Glass Lewis”)) as a result of such Replacement Designee’s appointment to the Board. In the event the Nominating Committee declines to approve a candidate for Replacement Designee, (x) any agreements provided by such candidate pursuant to the previous sentence shall be null and void and of no effect and (y) the Investor Group may propose one or more additional candidates, subject to the approval process described above, until a Replacement Designee is approved by the Nominating Committee. Following the approval of a candidate for Replacement Designee by the Nominating 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 the 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 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.

Replacement Rights. During the Standstill Period, if the Investor Group (or its members) has not committed a material breach of this Agreementsatisfies the Minimum Ownership Threshold, 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 New Director ceases to serve as a director, resigns as a director or is removed as a director, or on the Board for any other reason fails to serve or is not serving as a directorreason, then the Investor Group (or ETFS if the Investor Group has been dissolved) shall be entitled to designatedesignate a candidate to replace such New Director (a “Replacement”), and such Replacement shall be promptly appointed to the Board after the Board has approved of such candidate (with such approval not to be unreasonably withheld, conditioned or delayed), subject to the approval (not criteria and procedures detailed below; provided, however, that any Replacement shall have a substantially similar skillset to be unreasonably withheld or delayed) of the Nominating Committeedirector being replaced; provided, a candidate for further, that any Replacement Designee. Any Replacement Designee shall qualify as an Independent Director and shall not be a directorcurrent or former employee, officer, employeedirector or partner or immediate family member of the Investor or any of its Affiliates. Any Replacement identified pursuant to this Section 1(g) shall satisfy the independence standards of The Nasdaq Stock Market LLC, Affiliate or Associate the requirements of ETFS or Lion Pointthe Certificate of Incorporation, the Bylaws and the Company’s other governance documents and policies and any applicable law. The Nominating Committee shallAs a condition to being appointed to the Board, any Replacement shall have participated in good faith and consistent with its fiduciary dutiesthe reasonable customary procedures for all new director candidates. Such procedures shall include, approve or deny any candidate for Replacement Designee within five Business Days after such candidate has: but are not limited to, (i) successfully providing information required to be or customarily disclosed by directors or director candidates in proxy statements or other filings under applicable law or stock exchange regulations, information in connection with assessing eligibility, independence, and other criteria applicable to directors or satisfying compliance and legal obligations, and a fully completed a customary background check; (ii) completed satisfactory interviews with and executed copy of the existing directors, consistent with the BoardCompany’s past practice; (iii) provided the Company with (A) a completed director candidate questionnaire (in the form to be provided completed by the Company’s incumbent non-management directors); (ii) consenting to and (B) such participating in an appropriate background check comparable to those undergone by other information and agreements as may be reasonably requested by non-management directors of the Company; (iii) complying at all times with the Company Policies; and (iv) agreed to take all necessary action to not be considered “overboarded” under participating in an interview by, and receiving a favorable recommendation from, the applicable policies of the Company, Institutional Shareholder Services Inc. (“ISS”) and Glass, Lewis & Co., LLC (“Glass Lewis”)Nominating Committee. In the event the Nominating Committee declines determines in good faith not to approve a candidate for appoint any Replacement Designeeproposed by the Investor, (x) any agreements provided by such candidate pursuant to the previous sentence shall be null and void and of no effect and (y) the Investor Group may will be entitled to propose one or more additional candidatesReplacements for consideration, subject and the provisions of this Section 1(g) shall continue to the approval process described above, until a Replacement Designee is approved by the Nominating Committeeapply. Following the approval appointment of a candidate for Replacement Designee by the Nominating CommitteeReplacement, the Board shall promptly appoint such Replacement Designee all references to “New Director” in this Agreement, to the Board. Upon extent applicable to such New Director but for his or her appointment to departure from 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 references to the Board in accordance with this Section 1(j), the Investor Group shall disclose to the Company its aggregate beneficial ownership of the Company’s outstanding Common Stock for purposes of satisfying the Ownership MinimumReplacement instead.

Replacement Rights. During the Standstill Period, if the Investor Group (or any of its members) has not committed a material breach of this Agreement, and Agreement (as long as the members determined by a court 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”competent jurisdiction), in the event that an the Investor Group Designee (or any replacement for such the Investor Group Designee (such replacement, a “Replacement Designee”)) is unable or unwilling no longer able to serve as a directordirector of the Company due to death, resigns as a director disability, inability or is removed as a directorotherwise, or for any other reason fails otherwise ceases 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 designatedesignate a candidate to replace the Investor Group Designee or the Replacement Designee, as applicable, on the Board, subject to the approval (not to be unreasonably withheld or delayed) of the Nominating Committee, a candidate for Replacement Designeethis Section 1(h). Any Replacement Designee shall qualify as an Independent Director and shall not be a director, officer, employee, Affiliate or Associate of ETFS or Lion PointDirector. The Nominating Committee shall, in good faith and consistent with its fiduciary duties, approve or deny decide whether to recommend any candidate for Replacement Designee to the full Board to serve as a member of the Board 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 practicepractice with all directors sitting on the Board; (iii) provided the Company with (A) a completed director questionnaire (in the form substantially similar to be the questionnaire previously provided by the Company) Investor Group Designee), 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, Institutional Shareholder Services Inc. (“ISS”) and Glass, Lewis & Co., LLC (“Glass Lewis”)) if such Replacement Designee is appointed to the Board. In the event the Nominating Committee declines to approve recommend a candidate for Replacement Designee, (x) any agreements provided by such candidate pursuant to the previous sentence shall be null and void and of no effect and (y) the Investor Group may propose one or more additional candidates, subject to the approval process described above, until a Replacement Designee is approved recommended by the Nominating CommitteeCommittee and appointed to the Board. Following the approval recommendation of a candidate for Replacement Designee by the Nominating Committee, the Board shall promptly appoint such Replacement Designee to the Board, subject to a Fiduciary Duty Determination. Upon his or her appointment If a Replacement Designee is appointed to the Board, such Replacement Designee shall be deemed an the Investor Group Designee for all purposes under this Agreement. (i) Communications. Prior During the 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), the Company shall use reasonable best efforts to exercising its right (i) provide the Investor Group the opportunity to recommend have a Replacement Designee for appointment teleconference with the Capital Allocation Committee following each quarterly earnings announcement made by the Company (the “Quarterly Meetings”), (ii) provide the Investor Group the opportunity to have a teleconference with the Chief Executive Officer and/or the Chief Financial Officer of the Company following each quarterly earnings announcement made by the Company, and (iii) provide the Investor Group the opportunity to have a teleconference with the Chair of the Board and at least one other director between such Quarterly Meetings, as the Investor Group may reasonably request, provided that in each case of clauses (i) through (iii) above, such meeting does not occur during a “Blackout Period” in accordance with this Section 1(j), the Investor Group shall disclose to the Company its aggregate beneficial ownership of the Company’s outstanding Common Stock for purposes of satisfying the Ownership MinimumXxxxxxx Xxxxxxx Policy.

Replacement Rights. During the Standstill Period, if the Investor Group (or any of its members) has not committed a material breach of this Agreement, and or the Confidentiality Agreement, as determined by an independent, third-party fact finder, as long as the members of the Investor Group or their Affiliates or Associates beneficially ownowns, 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 the New Director (or any replacement for such Investor Group Designee the New Director (such replacement, a “Replacement Designee”)) is unable or unwilling no longer able to serve as a directordirector of the Company due to death, resigns as a director disability, other incapacity or is removed as a director, or for any other reason fails to serve or is not serving as a directorcompelling reason, 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 be mutually agreeable to the Company and the Investor Group, such agreement not to be a directorunreasonably withheld, officer, employee, Affiliate conditioned or Associate of ETFS or Lion Pointdelayed. 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 checkcheck of the same type as used for all recent directors of the Company; (ii) completed satisfactory interviews with has, in the existing directors, consistent with reasonable and good faith judgment of the Board’s past practice, relevant financial and business experience to serve on the Board; and (iii) provided the Company with (A) a completed director questionnaire (in the form that has been provided to be provided Black Diamond by the Company, which is identical to the form used for all recent directors of the Company), (B) an executed joinder to this Agreement, and the Confidentiality Agreement, to join such Replacement Designee to this Agreement, and the Confidentiality Agreement, as an Investor Group Designee hereunder and thereunder, and an executed Resignation Letter, and (BC) such other information and agreements as may be reasonably requested by the Company; Company and (iv) agreed to take all necessary action to not be considered “overboarded” under is consistent with the applicable policies of the Company, Institutional Shareholder Services Inc. (“ISS”) and Glass, Lewis & Co., LLC (“Glass Lewis”)Board’s past practice. In the event the Nominating Committee declines to approve a candidate for Replacement Designee, (x) any agreements provided by such candidate pursuant to the previous sentence shall be null and void and of no effect and (y) the Investor Group may propose one or more additional candidates, subject to the approval process described above, until a Replacement Designee is approved by the Nominating Committee. Following the approval of a candidate for Replacement Designee by the Nominating 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 the New Director 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(j1(i), the 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 Designee pursuant to the terms of this Section 1(i), and if a Replacement Designee is not appointed to the Board within thirty (30) Business Days of the date on which the Investor Group recommends a Replacement Designee, the Investor Group shall have the right, but not the obligation, to treat, by written notice to the Company, the absence of the Investor Group Designee as a resignation of the Investor Group Designee for all purposes hereunder, including, without limitation, the termination of the Standstill Period.