Common use of Board Representative Clause in Contracts

Board Representative. At the Closing, the Company shall (a) cause the size of the Board of Directors to be increased and one director designated by PRF, which shall initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, MD, to be elected by the Board of Directors to fill the vacancy so created for a term ending at the Company’s next annual meeting. Following such initial term, the Company shall use its best efforts to nominate one director designated by PRF to the Company’s Board of Directors for election by the Company’s shareholders at every shareholder meeting at which his term would otherwise expire. In the absence of any designation from PRF, the Company shall nominate the director previously designated by PRF and then serving if such director is still eligible to serve to be elected to the Company’s Board of Directors. If any vacancy created by the resignation, removal or death of a director elected pursuant to this Section 4.5 occurs, PRF shall designate a new director to fill the vacancy created by such resignation, removal or death and the Company shall use its best efforts to cause the Board of Directors to appoint such director to the Board of Directors for a term ending at the Company’s next annual meeting, at which time the Company will use its best effort to nominate such director to the Company’s Board of Directors for election by the Company’s Board of Directors and for election by the Company’s shareholders at every shareholder meeting at which his term would otherwise expire. The director designated by PRF shall resign and the Company shall no longer be required to nominate a director designated by PRF upon the later of the following events: (1) if PRF ceases to own at least five (5%) percent of the Company’s Common Stock or securities convertible into the Company’s Common Stock; (2) if the Company owes PRF less than five million dollars ($5,000,000) under the Note pursuant to the Note Purchase Agreement among the Parties dated as of the date hereof; (3) the provisions of part (b) of the definition of Applicable Percentage, as defined in Section 1.01 of the Revenue Interests Assignment Agreement, have been triggered; or (4) if the amounts due by the Company pursuant to the Revenue Interests Assignment Agreement cease to be due under such agreement. The Company shall reimburse the director designated by PRF, if elected to the Board of Directors as provided herein, for all reasonable out-of-pocket travel and other expenses as are reimbursed to other directors on the Board, all in accordance with the Company’s policies for reimbursement of directors. The director designated by PRF and elected to the Board of Directors as provided herein shall also be entitled to compensation paid to the non-employee directors of the Company. (b) If at any time during the period pursuant to Section 4.5(a) in which PRF shall be entitled to designate a nominee for election to the Company’s Board of Directors and the director designated by PRF is not a member of the Board of Directors, the Company shall invite a PRF’s designee to attend and participate in all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such designee copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that the Company reserves the right to exclude the PRF designee from access to any notices, minutes, consents and other materials or meetings or portion thereof if the Company believes upon advice of counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect confidential information or for other similar reasons. The Company shall reimburse the PRF designee for all reasonable out-of-pocket travel and other expenses as are reimbursed to other directors on the Board, all in accordance with the Company’s policies for reimbursement of directors.

Board Representative. (a) At the Closing2019 Annual Meeting of Shareholders of the Company, and at each subsequent Applicable Meeting during the Term, until the amendment of the Company’s Articles to implement the Charter Amendment (as defined herein), the Company shall shall (ai) cause propose an amendment (the size “Charter Amendment”) to the Company’s Articles to increase the maximum number of directors of the Board Company by one (1) director from seven (7) directors to eight (8) directors and (ii) subject to the approval of Directors the Shareholders by special resolution of the Charter Amendment, nominate one (1) director to serve as the New Independent Director, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date and (C) have been approved by the Board, such approval not to be increased and one director designated by PRFunreasonably withheld. Upon approval of the Charter Amendment, which the Company shall initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, MD, cause such New Independent Director to be elected by nominated for election to the Board at such Applicable Meeting and shall recommend to holders of Directors Voting Securities that such New Independent Director be elected to the Board at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the vacancy so on the Board created for a term ending at by the Charter Amendment). If the Company’s next annual meeting. Following Articles are amended to implement the Charter Amendment but a New Independent Director is not approved by the Shareholders such initial termthat a vacancy is created on the Board, the Majority Holders may propose to the Board another nominee for election to the Board, pursuant to the procedures set forth in Section 2(b), and the Company shall use appoint such New Independent Director as a director to fill such vacancy. (b) For each Applicable Meeting during the Term at which the term of any New Independent Director then on the Board will expire or at which no New Independent Director is then on the Board (other than by reason of the failure of the Company to amend its best efforts Articles to nominate implement the Charter Amendment in accordance with Section 2(a)): (i) the Majority Holders may propose to the Board one director (1) nominee for election or appointment to the Board, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by PRF the Majority Holders (as such group is determined ten (10) days prior to the Company’s Board of Directors Notification Date) and notified to the Company prior to the Notification Date, and (C) have been approved by the Board, such approval not to be unreasonably withheld. The Company shall cause such nominee (the “New Independent Director”) to be nominated for election by to the Company’s shareholders Board at every shareholder meeting at which his term would otherwise expire. In such Applicable Meeting, and shall cause the absence Board to recommend to holders of any designation from PRF, the Company shall nominate the director previously designated by PRF and then serving if Voting Securities that such director is still eligible to serve to New Independent Director be elected to the Company’s Board of Directors. If at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any vacancy created by the resignation, removal or death of a director elected pursuant to this Section 4.5 occurs, PRF shall designate a new director competing nominee to fill the vacancy created by such resignationapplicable seat on the Board). Notwithstanding anything to the contrary in this Agreement, removal no director or death officer of the Company shall, and the Company shall use its best efforts not be required to cause the Board of Directors to appoint compel any director or officer to, take any action that such director or officer of the Company determines, in his or her sole discretion, may violation such officer or director’s fiduciary duties to the Company. (c) If the Charter Amendment is approved and becomes effective, any nominee nominated by the Company in accordance with Section 2(a) or Section 2(b) hereof that has been approved by the Shareholders of the Company at any Applicable Meeting to be the New Independent Director shall be elected or appointed to the Board as soon as practicable. (d) The election or appointment of Directors a New Independent Director pursuant to Section 2(a) or Section 2(b) will be subject to such New Independent Director having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such New Independent Director prior to such Applicable Meeting. Should the Board and the Majority Holders be unable to mutually agree upon a New Independent Director pursuant to Section 2(a) or Section 2(b), the Majority Holders will be entitled to continue to recommend different nominees that meet the Independent Director Criteria, until a New Independent Director is so mutually agreed upon and nominated for a term ending at election to the Company’s next annual meetingBoard, at which time provided that, for the avoidance of doubt, there shall be no requirement to notify the Company will use its best effort to nominate of such director additional proposals prior to the Company’s Board of Directors for election by the Company’s Board of Directors and for election by the Company’s shareholders at every shareholder meeting at which his term would otherwise expire. The director designated by PRF shall resign and the Company shall no longer be required to nominate Notification Date. (e) At all times while serving as a director designated by PRF upon the later member of the following events: Board (1and as a condition to such service), the New Independent Director shall (i) if PRF ceases comply with all policies, codes and guidelines applicable to own at least five Board members (5%subject to Section 4(b)) percent (the “Director Policies”) and (ii) otherwise qualify as “independent” of the Company’s Common Stock or securities convertible into the Company’s Common Stock; (2) if the Company owes PRF less than five million dollars ($5,000,000) under the Note pursuant to the Note Purchase Agreement among the Parties dated as of the date hereof; (3) the provisions of part (b) of the definition of Applicable Percentage, as defined in Section 1.01 of the Revenue Interests Assignment Agreement, have been triggered; or (4) if the amounts due by the Company pursuant to the Revenue Interests Assignment Agreement cease applicable securities laws and stock exchange requirements; provided that none of the Holders shall be responsible for any breach of this Section 2(e) by the New Independent Director. (f) Should the New Independent Director resign from the Board or become unable to serve as a director of the Company due to death, disability or other reasons prior to the expiration of his or her term, the Majority Holders (as such group is determined on the date of resignation of the New Independent Director) will have the right to recommend for appointment to the Board one (1) nominee that meets the Independent Director Criteria as a replacement director, subject to the approval by the Board, such approval not to be due under unreasonably withheld (each, a “Replacement”). The appointment of a Replacement for a New Independent Director will be subject to such agreementReplacement having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than and in substantially the same form as the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such Replacement, interviews with members of the Board (to be conducted within ten (10) Business Days of the Majority Holders’ recommendation of such Replacement), and a customary background check. The Company will complete its approval process within ten (10) Business Days of the later of its receipt of the Replacement’s executed director onboarding materials and the date of such interview. The Company shall reimburse the director designated by PRF, if elected appoint a Replacement to the Board if (and only if), taking into account the Replacement’s skillset and experience (only if such replacement is a Replacement for the New Independent Director), it finds a Replacement to be reasonably acceptable. Promptly after a determination that a Replacement is reasonably acceptable, the Board and all applicable committees of Directors the Board shall take all necessary actions to cause the Replacement to be appointed as provided a director of the Company and, if the Replacement is qualified under applicable securities laws and stock exchange requirements, as a member of those Board committees on which the New Independent Director being replaced served. In the event the Board reasonably finds that a Replacement is not acceptable, such Majority Holders will be entitled to recommend different nominees which meet the Independent Director Criteria, and such nominees will be subject to the foregoing approval process. For the avoidance of doubt, such Majority Holders will be entitled to continue to recommend different nominees which meet the foregoing criteria until a Replacement is appointed. Except as otherwise specified in this Agreement, if a Replacement is appointed, all references in this Agreement to the term “New Independent Director” will include such Replacement, as applicable. Except as otherwise expressly permitted herein, the Company and the Board shall not take any action to remove or seek the removal of any of the New Independent Director during the Term other than for all reasonable out-of-pocket travel and other expenses Cause (as are reimbursed defined herein). (g) On each date that a New Independent Director or a Replacement is nominated pursuant to other directors on this Agreement, each member of the Board, all in accordance with the Company’s policies for reimbursement of directors. The director designated by PRF and elected Holder Group shall deliver to the Board a certificate certifying that such Holder beneficially owns the applicable Requisite Amount of Directors as provided herein shall also be entitled to compensation paid to Notes (which Notes, for the non-employee directors avoidance of the Company. (b) If at any time during the period pursuant to Section 4.5(a) in which PRF shall be entitled to designate a nominee for election to the Company’s Board of Directors and the director designated by PRF is not a member of the Board of Directorsdoubt, the Company shall invite a PRF’s designee to attend and participate in all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such designee copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and may have been acquired in the same manner as provided to Exchange or thereafter by such directors; provided, however, that the Company reserves the right to exclude the PRF designee from access to any notices, minutes, consents and other materials or meetings or portion thereof if the Company believes upon advice of counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect confidential information or for other similar reasons. The Company shall reimburse the PRF designee for all reasonable out-of-pocket travel and other expenses as are reimbursed to other directors on the Board, all in accordance with the Company’s policies for reimbursement of directorsHolder).

Board Representative. At the Closing, the Company shall (a) cause In the size event that a current director of the Board Company who is not a Section 4.15 Director, as defined in Section 2 of Directors to be increased and one director designated by PRF, which shall initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, MD, to be elected by the Board of Directors to fill the vacancy so created for a term ending at the Company’s next annual meeting. Following such initial term, the Company shall use its best efforts to nominate one director designated by PRF Schedule A to the Company’s Board Articles of Directors for election by Reorganization, resigns or becomes unable to serve as a director of the Company due to death, disability or other reasons prior to the expiration of his or her term and a New Independent Director is not then a director of the Company’s shareholders at every shareholder meeting at which his term would otherwise expire. In the absence of any designation from PRF, the Company shall nominate one (1) nominee to serve as a new independent director, which nominee shall (A) meet the director previously Independent Director Criteria, (B) have been designated by PRF the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and then serving if notified to the Company prior to the Notification Date and (C) have been approved by the Board, such director is still eligible to serve approval not to be unreasonably withheld (each such nominee, a “New Independent Director”). As soon as practicable after nomination, the directors of the Company shall cause such New Independent Director to be appointed as a director of the Company and, at the 2019 Annual Meeting of Shareholders of the Company, and at each subsequent Applicable Meeting during the Term, the Company shall cause such New Independent Director to be nominated for election as a director of the Company at such Applicable Meeting and shall recommend to holders of Voting Securities that such New Independent Director be elected as a director of the Company at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the vacancy on the Board). (b) Provided that no New Independent Director has been appointed as a director of the Company by the directors of the Company in accordance with Section 2(a), at the 2019 Annual Meeting of Shareholders of the Company, and at each subsequent Applicable Meeting during the Term, until the amendment of the Company’s Articles to implement the Charter Amendment (as defined herein), the Company shall (i) propose an amendment (the “Charter Amendment”) to the Company’s Articles to increase the maximum number of directors of the Board by one (1) director from seven (7) directors to eight (8) directors and (ii), subject to the approval of Directorsthe Shareholders by special resolution of the Charter Amendment, nominate one (1) New Independent Director. If any vacancy created by Upon approval of the resignationCharter Amendment, removal or death of the Company shall cause such New Independent Director to be nominated for election as a director of the Company at such Applicable Meeting and shall recommend to holders of Voting Securities that such New Independent Director be elected pursuant to this Section 4.5 occursas a director of the Company at such Applicable Meeting (and shall not nominate, PRF shall designate a new director recommend or otherwise endorse any competing nominee to fill the vacancy on the Board created by the Charter Amendment). If the Company’s Articles are amended to implement the Charter Amendment but a New Independent Director is not approved by the Shareholders such resignationthat a vacancy is created on the Board, removal the Majority Holders may propose to the Board another nominee for election as a director of the Company, pursuant to the procedures set forth in Section 2(c), and the directors of the Company shall call a meeting of shareholders to vote on the election of such New Independent Director as a director of the Company to fill such vacancy. (c) For each Applicable Meeting during the Term at which the term of any New Independent Director then on the Board will expire or death at which no New Independent Director is then on the Board (other than by reason of the failure of the Company to amend its Articles to implement the Charter Amendment in accordance with Section 2(b)): (i) the Majority Holders may propose to the Board one (1) New Independent Director for nomination as a director of the Company. The Company shall cause such New Independent Director to be nominated for election as a director of the Company at such Applicable Meeting, and shall cause the Board to recommend to holders of Voting Securities that such New Independent Director be elected as a director of the Company at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the applicable seat on the Board). (d) Notwithstanding anything to the contrary in this Agreement, no director or officer of the Company shall, and the Company shall use its best efforts not be required to cause the Board of Directors to appoint compel any director or officer to, take any action that such director to the Board or officer of Directors for a term ending at the Company’s next annual meeting, at which time the Company will use its best effort to nominate determines, in his or her sole discretion, may violation such director officer or director’s fiduciary duties to the Company’s . (e) The election or appointment of a New Independent Director pursuant to Section 2(a), Section 2(b) or Section 2(c) will be subject to such New Independent Director having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than the onboarding materials provided to other non-executive directors of the Board of Directors and which shall include a Confidentiality Agreement) provided to such New Independent Director prior to such Applicable Meeting. Should the Board and the Majority Holders be unable to mutually agree upon a New Independent Director pursuant to Section 2(a), Section 2(b) or Section 2(c), the Majority Holders will be entitled to continue to recommend different nominees that meet the Independent Director Criteria, until a New Independent Director is so mutually agreed upon and nominated for election by the Company’s Board of Directors and for election by the Company’s shareholders at every shareholder meeting at which his term would otherwise expire. The director designated by PRF shall resign and the Company shall no longer be required to nominate as a director designated by PRF upon the later of the following events: (1) if PRF ceases to own at least five (5%) percent of the Company’s Common Stock or securities convertible into , provided that, for the Company’s Common Stock; (2) if avoidance of doubt, there shall be no requirement to notify the Company owes PRF less than five million dollars ($5,000,000) under the Note pursuant of such additional proposals prior to the Note Purchase Agreement among the Parties dated Notification Date. (f) At all times while serving as a member of the date hereof; Board (3and as a condition to such service), a New Independent Director shall (i) comply with all policies, codes and guidelines applicable to Board members (subject to Section 4(b)) (the provisions “Director Policies”) and (ii) otherwise qualify as “independent” of part (b) of the definition of Applicable Percentage, as defined in Section 1.01 of the Revenue Interests Assignment Agreement, have been triggered; or (4) if the amounts due by the Company pursuant to the Revenue Interests Assignment Agreement cease applicable securities laws and stock exchange requirements; provided that none of the Holders shall be responsible for any breach of this Section 2(f) by a New Independent Director. (g) Should a New Independent Director resign from the Board or become unable to serve as a director of the Company due to death, disability or other reasons prior to the expiration of his or her term, the Majority Holders (as such group is determined on the date of resignation of such New Independent Director) will have the right to recommend for appointment as a director of the Company one (1) nominee that meets the Independent Director Criteria as a replacement director, subject to the approval by the Board, such approval not to be due under unreasonably withheld (each, a “Replacement”). The appointment of a Replacement for a New Independent Director will be subject to such agreementReplacement having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than and in substantially the same form as the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such Replacement, interviews with members of the Board (to be conducted within ten (10) Business Days of the Majority Holders’ recommendation of such Replacement), and a customary background check. The Company will complete its approval process within ten (10) Business Days of the later of its receipt of the Replacement’s executed director onboarding materials and the date of such interview. The Company shall reimburse appoint a Replacement as a director of the Company if (and only if), taking into account the Replacement’s skillset and experience (only if such replacement is a Replacement for a New Independent Director), it finds a Replacement to be reasonably acceptable. Promptly after a determination that a Replacement is reasonably acceptable, the Board and all applicable committees of the Board shall take all necessary actions to cause the Replacement to be appointed as a director designated by PRFof the Company and, if elected the Replacement is qualified under applicable securities laws and stock exchange requirements, as a member of those Board committees on which a New Independent Director being replaced served. In the event the Board reasonably finds that a Replacement is not acceptable, such Majority Holders will be entitled to recommend different nominees which meet the Independent Director Criteria, and such nominees will be subject to the foregoing approval process. For the avoidance of doubt, such Majority Holders will be entitled to continue to recommend different nominees which meet the foregoing criteria until a Replacement is appointed. Except as otherwise specified in this Agreement, if a Replacement is appointed, all references in this Agreement to the term “New Independent Director” will include such Replacement, as applicable. Except as otherwise expressly permitted herein, the Company and the Board shall not take any action to remove or seek the removal of any New Independent Director during the Term other than for Cause (as defined herein). (h) On each date that a New Independent Director or a Replacement is nominated pursuant to this Agreement, each member of the Holder Group shall deliver to the Board a certificate certifying that such Holder beneficially owns the applicable Requisite Amount of Directors as provided hereinNotes (which Notes, for all reasonable out-of-pocket travel and other expenses the avoidance of doubt, may have been acquired in the Exchange or thereafter by such Holder). (i) The Holders acknowledge that under no circumstances will the Company be required to nominate, elect or appoint more than one (1) New Independent Director as are reimbursed to other directors on the Board, all in accordance with the Company’s policies for reimbursement of directors. The a director designated by PRF and elected to the Board of Directors as provided herein shall also be entitled to compensation paid to the non-employee directors of the Company. (b) If at any time during the period pursuant to Section 4.5(a) in which PRF shall be entitled to designate a nominee for election to the Company’s Board of Directors and the director designated by PRF is not a member of the Board of Directors, the Company shall invite a PRF’s designee to attend and participate in all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such designee copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that the Company reserves the right to exclude the PRF designee from access to any notices, minutes, consents and other materials or meetings or portion thereof if the Company believes upon advice of counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect confidential information or for other similar reasons. The Company shall reimburse the PRF designee for all reasonable out-of-pocket travel and other expenses as are reimbursed to other directors on the Board, all in accordance with the Company’s policies for reimbursement of directors.

Board Representative. At Provided that after giving effect to the ClosingInitial Closing the Purchasers will own shares of Class A Common Stock representing in the aggregate at least 9.0% of the outstanding Class A Common Stock after taking into account the purchase by the Purchasers herein and the purchases by Other Investors then being completed, the Company shallas set forth on Schedule 3.1(a)(ii): (a) cause Prior to the Initial Closing, the Corporation shall take all requisite corporate action to increase the size of the its Board of Directors and Equity Bank’s Board of Directors to be increased and accommodate the appointment of one director designated person nominated by PRFthe Purchasers to each such Board (the “Board Representative”). Unless the Corporation or Equity Bank shall have received any objection from the Federal Reserve with respect to his service as a director, which the Corporation shall initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, MD, cause the Board Representative to be elected by or appointed to the Corporation’s Board of Directors and Equity Bank’s Board of Directors effective as of the Initial Closing. If the foregoing actions have not been taken by the Corporation and Equity Bank at or prior to fill the vacancy so created for a term ending at the Company’s next annual meeting. Following such initial termInitial Closing, the Company Corporation shall, and shall use its best efforts cause Equity Bank to, take such actions as promptly as practicable after the Initial Closing, and in any event prior to nominate one director there being any meeting of or any action taken by either the Corporation’s or Equity Bank’s Board of Directors (including any action by written consent), such that the Board Representative is serving on such Boards prior to the time either such Board first meets or otherwise takes action following the Initial Closing. (b) From and after the Initial Closing, so long as the Purchasers have not sold, transferred or otherwise disposed of, in the aggregate, seventy-five percent (75%) or more of the securities being acquired hereunder, (A) the Corporation’s and Equity Bank’s nominating committees (or any other committee exercising a similar function) shall recommend to the Corporation’s Board of Directors and Equity Bank’s Board of Directors, as applicable, that the Board Representative (or any successor designated by PRF the Purchasers pursuant to Section 4.15(c) below), be included in the Companyslate of nominees recommended by the Corporation’s Board of Directors and Equity Bank’s Board of Directors, as applicable, to stockholders for election as directors at each annual meeting of stockholders of the Corporation or Equity Bank at which such person’s term expires and (B) the Corporation shall cause the Board Representative (or any successor designated by the Purchasers pursuant to Section 4.15(c) below) to be a member of the Corporation’s Board of Directors and Equity Bank’s Board of Directors at all times. (c) From and after the Initial Closing, so long as the Purchasers have not sold, transferred or otherwise disposed of, in the aggregate, seventy-five percent (75%) or more of the securities being acquired hereunder, if the Board Representative shall cease to serve as a director of the Corporation’s Board of Directors or Equity Bank’s Board of Directors for election by any reason, which results in a vacancy on the CompanyCorporation’s shareholders at every shareholder meeting at which his term would otherwise expire. In the absence Board of any designation from PRF, the Company shall nominate the director previously designated by PRF and then serving if such director is still eligible to serve to be elected to the CompanyDirectors or Equity Bank’s Board of Directors. If any vacancy created by , as applicable, the resignation, removal or death of a director elected pursuant to this Section 4.5 occurs, PRF Corporation shall designate a new director to fill the vacancy created by such resignation, removal or death and the Company shall use its best efforts to cause the Board of Directors to appoint such director to the Board of Directors for a term ending at the Company’s next annual meeting, at which time the Company will use its best effort to nominate such director to the Company’s Board of Directors for election by the CompanyCorporation’s Board of Directors and for election Equity Bank’s Board of Directors, as applicable, to take all action required to fill the vacancy resulting therefrom with a person designated by the CompanyPurchasers, who shall thereafter be the Board Representative hereunder. (d) The Board Representative shall have the right, at such person’s shareholders at every shareholder meeting at which his term would otherwise expire. The director designated by PRF shall resign option and the Company shall no longer be required subject to nominate a director designated by PRF upon the later any applicable exchange listing standards and independence requirements, to serve on up to two committees of each of the following events: Corporation’s Board of Directors and Equity Bank’s Board of Directors, it being understood and agreed that the foregoing shall not restrict the Board Representative from serving on any other committee to which he is appointed by the Corporation’s Board of Directors and Equity Bank’s Board of Directors; provided that the Board Representative shall not serve as chairman or vice-chairman (1or in any similar capacity) if PRF ceases to own at least of any such committee or represent more than twenty-five percent (525%) percent of the Company’s Common Stock or securities convertible into the Company’s Common Stock; (2) if the Company owes PRF less than five million dollars ($5,000,000) under the Note pursuant to the Note Purchase Agreement among the Parties dated as of the date hereof; (3) the provisions of part (b) of the definition members of Applicable Percentage, any such committee. (e) The Board Representative shall be entitled to the same indemnification in connection with his or her role as defined in Section 1.01 a director as the other members of the Revenue Interests Assignment Agreement, have been triggered; or (4) if the amounts due by the Company pursuant to the Revenue Interests Assignment Agreement cease to be due under such agreement. The Company shall reimburse the director designated by PRF, if elected to the Corporation’s Board of Directors and Equity Bank’s Board of Directors, as provided hereinapplicable, and shall be entitled to reimbursement for all documented, reasonable out-of-pocket travel and other expenses as are reimbursed to other directors on the Board, all incurred in accordance with the Company’s policies for reimbursement of directors. The director designated by PRF and elected to the Board of Directors as provided herein shall also be entitled to compensation paid to the non-employee directors attending meetings of the Company. (b) If at any time during the period pursuant to Section 4.5(a) in which PRF shall be entitled to designate a nominee for election to the CompanyCorporation’s Board of Directors and the director designated by PRF is not a member of the Equity Bank’s Board of Directors, or any committees thereof, to the Company shall invite a PRFsame extent as the other members of the Corporation’s designee to attend and participate in all meetings of its Board of Directors in and Equity Bank’s Board of Directors. The Corporation shall, or where applicable shall cause Equity Bank to, notify the Board Representative of all regular and special meetings of the Corporation’s Board of Directors and Equity Bank’s Board of Directors (as applicable) and shall notify the Board Representative of all regular and special meetings of any committee of the Corporation’s Board of Directors or Equity Bank’s Board of Directors of which the Board Representative is a nonvoting observer capacity andmember. The Corporation or Equity Bank, in this respectas applicable, shall give such designee provide the Board Representative with copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that the Company reserves the right to exclude the PRF designee from access to any notices, minutes, consents and other materials provided to any other members of the Corporation’s Board of Directors or meetings or portion thereof if Equity Bank’s Board of Directors concurrently as such materials are provided to the Company believes upon advice of counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect confidential information or for other similar reasons. The Company shall reimburse the PRF designee for all reasonable out-of-pocket travel and other expenses as are reimbursed to other directors on the Board, all in accordance with the Company’s policies for reimbursement of directors.

Board Representative. At the Closing, the Company shall (a) cause With respect to each of the size Lead Investors, so long as either (i) the Note issued to such Lead Investor remains outstanding or (ii) such Lead Investor (together with its Affiliates) owns at least an aggregate of 5% of the issued and outstanding shares of Restoragen Common Stock (assuming conversion of the Notes and conversion of all Restoragen Preferred Stock), Restoragen shall permit each such Lead Investor to designate one person as a voting member of the Board of Directors Directors. If such Lead Investor's representative has a change in employment responsibilities or ceases to be increased employed by such Lead Investor, such Lead Investor shall be entitled to designate a replacement for its representative. Each Lead Investor's representative shall receive all notices, documents, and one director designated other information in the same time and manner as such information is supplied to members of the Board of Directors. Restoragen shall make reasonable efforts to permit such Lead Investor's representative to participate in Board of Directors meetings by PRFtelephone if such representative is unable to attend in person. Restoragen agrees to pay the reasonable expenses incurred by such Lead Investor's representative in connection with attending Board of Directors meetings if and to the extent that Restoragen pays any expenses of any other member of the Board of Directors. (b) Each of the Lenders who are part of the SMS Group acknowledges that Erich Sager, which shall initially be who is already a member of the Company's Board of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, MD, shall initially be their designated representative. Restoragen agrees to be elected by nominate Medtronic's designee for election to the Board of Directors and to fill the vacancy so created for a term ending at the Company’s next annual meeting. Following such initial term, the Company shall use its best efforts to nominate one director designated by PRF to the Company’s Board of Directors for election by the Company’s shareholders at every shareholder meeting at which his term would otherwise expire. In the absence of any designation from PRF, the Company shall nominate the director previously designated by PRF and then serving if such director is still eligible to serve to be elected to the Company’s Board of Directors. If any vacancy created by the resignation, removal or death of a director elected pursuant to this Section 4.5 occurs, PRF shall designate a new director to fill the vacancy created by such resignation, removal or death and the Company shall use its best efforts to cause Medtronic's designee to be so elected within 60 days after Restoragen's receipt of Medtronic's written notice of the Board identity of Directors its representative. In any and all future elections of directors of Restoragen (whether at a meeting or by written consent in lieu of a meeting), each of the Lenders shall vote or cause to appoint be voted all shares of Restoragen capital stock now or hereafter owned by such director Lender, or over which such Lender has voting control, and otherwise use such Lender's best efforts, so as to elect each Lead Investor's representative to the Board of Directors. No Lender shall vote to remove any Lead Investor's representative from the Board or Directors unless requested in writing by such Lead Investor. Each Lender hereby agrees that such Lender will not sell, transfer or otherwise dispose of (or enter into a binding agreement to sell, transfer or otherwise dispose of) all or any of such Lender's shares of Restoragen capital stock, whether now owned or hereafter acquired, except for a term ending at the Company’s next annual meeting, at which time the Company will use its best effort transfers to nominate such director persons who agree to the Company’s Board of Directors for election be bound by the Company’s Board of Directors and for election by the Company’s shareholders at every shareholder meeting at which his term would otherwise expire. The director designated by PRF shall resign and the Company shall no longer be required to nominate a director designated by PRF upon the later of the following events: (1) if PRF ceases to own at least five (5%) percent of the Company’s Common Stock or securities convertible into the Company’s Common Stock; (2) if the Company owes PRF less than five million dollars ($5,000,000) under the Note pursuant to the Note Purchase Agreement among the Parties dated as of the date hereof; (3) the provisions of part (b) of the definition of Applicable Percentage, as defined in this Section 1.01 of the Revenue Interests Assignment Agreement, have been triggered; or (4) if the amounts due by the Company pursuant 3.2 with respect to the Revenue Interests Assignment Agreement cease such transferred shares. Each Lender and Restoragen agree to cause a legend to be due under such agreement. The Company shall reimburse printed on all certificates issued or reissued on or after the director designated date hereof representing shares of Restoragen capital stock owned beneficially or of record by PRF, if elected to the Board of Directors as provided herein, for all reasonable out-of-pocket travel and other expenses as are reimbursed to other directors on the Board, all in accordance a Lender with the Company’s policies for reimbursement following legend: "The shares represented by this certificate are subject to Section 3.2 of directors. The director designated by PRF a Bridge Loan Agreement dated December 13, 2001 among Medtronic International, Ltd., Restoragen Inc. and elected to the Board of Directors as provided herein shall also be entitled to compensation paid to the non-employee directors of the Companyregistered holder hereof." (bc) If at any time during the period pursuant to Section 4.5(a) in which PRF Each Lead Investor shall be entitled to designate a nominee for election to the Company’s Board receive from Restoragen notices of Directors and the director designated by PRF is not a member all meetings of the Board of Directors, the Company shall invite a PRF’s designee to attend and participate in all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such designee copies of all notices, minutes, consentsincluding without limitation telephonic meetings, and other each Lead Investor shall receive, with such limitations provided herein, any materials that it provides to its directors at the same time distributed for such meeting, and in the same manner as provided may send one representative to such directors; provided, however, that meetings. (d) Medtronic's and SMS Group's rights pursuant to this Section 3.2 shall terminate upon the Company reserves the right to exclude the PRF designee from access to any notices, minutes, consents and other materials or meetings or portion thereof if the Company believes upon advice closing of counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect confidential information or for other similar reasons. The Company shall reimburse the PRF designee for all reasonable out-of-pocket travel and other expenses as are reimbursed to other directors on the Board, all in accordance with the Company’s policies for reimbursement of directorsan initial public offering by Restoragen.

Board Representative. At Promptly following the Closing, the Company shall will take all appropriate action to effect the appointment of one person designated by Investor (athe “Investor Designee”) cause the size of the to its Board of Directors Directors; provided, that, as a condition to such appointment, such designee must first be increased considered by, and one director designated by PRFreceive the affirmative approval of, which shall initially be the Company’s nominating and corporate governance committee. ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, MD, to be elected by ▇ has already received such approval. So long as the Board Investor and its affiliates beneficially own (within the meaning of Directors to fill the vacancy so created for a term ending Exchange Act) at least 5% of the Company’s next annual meeting. Following such initial term, the Company shall use its best efforts to nominate one director designated by PRF to the Company’s Board of Directors for election by the Company’s shareholders at every shareholder meeting at which his term would otherwise expire. In the absence of any designation from PRFCommon Stock, the Company shall nominate for election at each meeting of its stockholders at which an election of directors shall be held one Investor Designee. In addition, during such time as the Investor and its Affiliates beneficially own (within the meaning of the Exchange Act) at least 20% of the Common Stock (without giving effect to any outstanding warrants (including the Warrants), options or similar rights held by any party), the Company shall, at the written request of the Investor and in addition to the Investor Designee, nominate for election at each meeting of its stockholders at which an election of directors shall be held an additional director previously designated by PRF and then serving if such director is still eligible to serve to the Investor who shall be elected to “independent” of the Company within the meaning of the rules of the New York Stock Exchange (or any other exchange on which the Company’s Common Stock is listed or admitted for trading) (the “Independent Designee”); provided, that, as a condition to such nomination, any such Independent Designee must first be considered by, and receive the affirmative approval of, the Company’s nominating and corporate governance committee. If either the Investor Designee or, if applicable, the Independent Designee does not receive the requisite vote of stockholders of the Company for election to its Board of Directors. If any vacancy created by , the resignationCompany, removal or death at the written request of the Investor, shall appoint a director elected pursuant to this Section 4.5 occursdifferent Investor Designee or, PRF shall designate a new director if applicable, Independent Designee to fill the vacancy created by such resignation, removal or death and the Company shall use its best efforts to cause on the Board of Directors caused by the failure to appoint elect the original Investor Designee or Independent Designee, as applicable; provided, that, as a condition to such director to appointment, any such different Investor Designee or, if applicable, Independent Designee must first be considered by, and receive the Board of Directors for a term ending at affirmative approval of, the Company’s next annual meetingnominating and corporate governance committee; provided, at which time however, that this sentence shall not apply in the Company will use its best effort to nominate such director to circumstance where in lieu of the Company’s Board of Directors for election Investor Designee or the Independent Designee there was elected a candidate who was neither nominated, endorsed nor supported by the Company’s Board of Directors and for election by the Company’s shareholders at every shareholder meeting at which his term would otherwise expire. The director designated by PRF shall resign and the Company shall no longer be required to nominate a director designated by PRF upon the later of the following events: (1) if PRF ceases to own at least five (5%) percent of the Company’s Common Stock or securities convertible into the Company’s Common Stock; (2) if the Company owes PRF less than five million dollars ($5,000,000) under the Note pursuant to the Note Purchase Agreement among the Parties dated as of the date hereof; (3) the provisions of part (b) of the definition of Applicable Percentage, as defined in Section 1.01 of the Revenue Interests Assignment Agreement, have been triggered; or (4) if the amounts due by the Company pursuant to the Revenue Interests Assignment Agreement cease to be due under such agreementmanagement. The Company shall reimburse the director designated by PRF, if elected to the not form any executive or similar committee of its Board of Directors as provided herein, for all reasonable out-of-pocket travel and other expenses as are reimbursed to other directors which has the effect of excluding the Investor Designee from active participation on the Board, all in accordance with the Company’s policies for reimbursement of directors. The director designated by PRF and elected to the Board of Directors as provided herein shall also be entitled to compensation paid to the non-employee directors of the Company. (b) If at any time during the period pursuant to Section 4.5(a) in which PRF shall be entitled to designate a nominee for election to the Company’s Board of Directors and the director designated by PRF is not a member matters requiring approval of the Board of Directors. During such time as an Investor Designee serves on the Board of Directors, except with the consent of the Investor (which may be withheld in its sole and absolute discretion) the Company shall invite a PRF’s designee to attend maintain commercially reasonable Directors and participate in all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such designee copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that the Company reserves the right to exclude the PRF designee from access to any notices, minutes, consents and other materials or meetings or portion thereof if the Company believes upon advice of counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect confidential information or for other similar reasonsOfficers Insurance. The Company Investor Designee shall reimburse be express third party beneficiaries of this sentence and the PRF designee for all reasonable out-of-pocket travel and other expenses as are reimbursed to other directors on the Board, all in accordance with the Company’s policies for reimbursement of directorspreceding sentence.

Board Representative. At the Closing, the Company shall and the Bank will appoint the person nominated by the Lead Investor (athe “Board Representative”) cause as provided in this Section 4.13(a) to the size Board of Directors, subject to satisfaction of the legal and governance requirements regarding service as a director of the Company and to the reasonable approval of the Board of Directors (such approval not to be increased unreasonably withheld or delayed). To the extent consistent with the requirement to stagger the terms of the directors of the Company, the Company and one Bank will nominate the Board Representative for election at the first annual meeting of stockholders following the Closing to a three year term. After such appointment or election of a Board Representative, so long as the Lead Investor beneficially owns (as determined in accordance with Rule 13d-3 under the Exchange Act) at least 5.0% or more of the outstanding shares of Common Stock, whether acquired upon conversion of the Preferred Shares or otherwise and treating each Preferred Share that is not a share of Common Stock as if it had converted into Common Stock, and each share of Non-Voting Common Stock as a Share of Common Stock (a “Qualifying Ownership Interest”), the Company will be required to recommend to its stockholders the election of such respective Lead Investor’s Board Representative at the Company’s annual meeting of stockholders, as applicable, subject to satisfaction of the legal and governance requirements regarding service as a director designated by PRF, which shall initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, MD, of the Company and to be elected by the reasonable approval of the Board of Directors (such approval not to be unreasonably withheld or delayed). If at any time a Lead Investor no longer beneficially owns Qualifying Ownership Interest, such Lead Investor will have no further rights under this Section 4.13(a), and, at the written request of the Board of Directors, shall use its reasonable best efforts to cause its Board Representative to resign from the Board of Directors within 15 calendar days thereafter. The Lead Investor shall inform the Company if and when it ceases to hold a Qualifying Ownership Interest. Any Board Representative (including any successor nominee) duly selected in accordance with this Section 4.13(a) shall, subject to applicable law, be the Company’s and the Board of Directors’ nominee to serve on the Board of Directors. The Company shall use all reasonable best efforts to have the Board Representative elected as a director of the Company and the Company shall solicit proxies for each such person to the same extent as it does for any of its other nominees to the Board of Directors. The Board Representative shall have the right to attend any meetings of the committees of the Board of Directors and the Bank Board as a non-voting observer, other than those committees that are required by the Listing Rules of the Nasdaq Stock Market to be comprised only of independent directors. For only so long as the Lead Investor has the right to nominate a Board Representative pursuant to this Section 4.13(a), such Lead Investor shall have the power to designate the Board Representative’s replacement upon the death, resignation, retirement, disqualification or removal from office of such director. The Board of Directors will use its reasonable best efforts to take all action required to fill the vacancy so created for a term ending at resulting therefrom with such person (including such person, subject to applicable law, being the Company’s next annual meeting. Following such initial termand the Board of Directors’ nominee to serve on the Board of Directors, the Company shall use its using all reasonable best efforts to nominate one have such person elected as director designated by PRF to the Company’s Board of Directors for election by the Company’s shareholders at every shareholder meeting at which his term would otherwise expire. In the absence of any designation from PRF, the Company shall nominate the director previously designated by PRF and then serving if such director is still eligible to serve to be elected to the Company’s Board of Directors. If any vacancy created by the resignation, removal or death of a director elected pursuant to this Section 4.5 occurs, PRF shall designate a new director to fill the vacancy created by such resignation, removal or death and the Company shall use soliciting proxies for such person to the same extent as it does for any of its best efforts to cause the Board of Directors to appoint such director other nominees to the Board of Directors for a term ending at the Company’s next annual meeting, at which time the Company will use its best effort to nominate such director Directors). Any Board Representative shall be entitled to the Company’s Board of Directors for election by the Company’s Board of Directors same cash compensation and for election by the Company’s shareholders at every shareholder meeting at which participation in Company equity plans and same indemnification in connection with his term would otherwise expire. The director designated by PRF shall resign and the Company shall no longer be required to nominate or her role as a director designated by PRF upon as the later other members of the following events: (1) if PRF ceases to own at least five (5%) percent of the Company’s Common Stock or securities convertible into the Company’s Common Stock; (2) if the Company owes PRF less than five million dollars ($5,000,000) under the Note pursuant to the Note Purchase Agreement among the Parties dated as of the date hereof; (3) the provisions of part (b) of the definition of Applicable Percentage, as defined in Section 1.01 of the Revenue Interests Assignment Agreement, have been triggered; or (4) if the amounts due by the Company pursuant to the Revenue Interests Assignment Agreement cease to be due under such agreement. The Company shall reimburse the director designated by PRF, if elected to the Board of Directors as provided hereinDirectors, and each Board Representative shall be entitled to reimbursement for all documented, reasonable out-of-pocket travel expenses incurred in attending meetings of the Board of Directors or any committees thereof, to the same extent as the other members of the Board of Directors. The Company shall notify each Board Representative of all regular and other expenses as are reimbursed to other directors on special meetings of the Board, Board of Directors and shall notify each Board Representative of all regular and special meetings of any committee of the Board of Directors of which the Board Representative is a member in accordance with the Company’s policies for reimbursement of directorsbylaws as then in effect. The director designated by PRF and elected to the Board of Directors as provided herein shall also be entitled to compensation paid to the non-employee directors of the Company. (b) If at any time during the period pursuant to Section 4.5(a) in which PRF shall be entitled to designate a nominee for election to the Company’s Board of Directors and the director designated by PRF is not a member of the Board of Directors, the Company shall invite a PRF’s designee to attend and participate in all meetings of its provide each Board of Directors in a nonvoting observer capacity and, in this respect, shall give such designee Representative with copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that the Company reserves the right to exclude the PRF designee from access to any notices, minutes, consents and other materials or meetings or portion thereof if provided to all other members of the Company believes upon advice Board of counsel that Directors concurrently as such exclusion is reasonably necessary materials are provided to preserve the attorney-client privilege, to protect confidential information or for other similar reasons. The Company shall reimburse the PRF designee for all reasonable out-of-pocket travel and other expenses as are reimbursed to other directors on the Board, all in accordance with the Company’s policies for reimbursement of directorsmembers.