WHEREAS, certain of the Investors have agreed to purchase shares of the Companys Series H Preferred Stock (the Series H Preferred Stock) pursuant to a Series H Preferred Stock Purchase Agreement by and among the Company and such Investors dated of even date herewith (such agreement, as amended from time to time, the Series H Agreement). The Series H Agreement provides that, as a condition to such Investors purchase of Series H Preferred Stock thereunder, the Company and the Investors will enter into this Agreement and the Investors will be granted the rights set forth herein; and
WHEREAS, the parties to such Prior Agreement desire to amend and restate the Prior Agreement and to accept the rights and covenants hereof in lieu of their rights and covenants under the Prior Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter set forth, the parties hereto agree as follows:
1. INFORMATION RIGHTS; CERTAIN DEFINED TERMS.
1.1 Financial Information. The Company covenants and agrees that, commencing on the date of this Agreement, the Company will:
(a) Annual Reports. Furnish to each Investor, for so long as such Investor holds at least five hundred thousand (500,000) shares (as adjusted per Section 6.10) of any combination of Common Stock issuable or issued upon conversion of the Series A Preferred Stock, Series B Preferred Stock, the Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series E-1 Preferred Stock, Series F Preferred Stock, Series F-1 Preferred Stock, Series G Preferred Stock and/or Series H Preferred Stock issued under either the Series A Agreement, the Series B Agreements, the Series C Agreement, the Series D Agreement, the Series E Agreement, the Series E-1 Agreement, the Series F Agreement, the Series F-1 Agreement, the Series G Agreement or the Series H Agreement (such Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series E-1 Preferred Stock, Series F Preferred Stock, Series F-1 Preferred Stock, Series G Preferred Stock and Series H Preferred Stock shall be collectively referred to as Preferred Stock) (such Investor, a Major Investor), as soon as practicable and in any event within ninety (90) days after the end of each fiscal year of the Company, a consolidated Balance Sheet as of the end of such fiscal year, a consolidated Statement of Income and a consolidated Statement of Cash Flows of the Company and its subsidiaries for such year, setting forth in each case in comparative form the figures from the Companys previous fiscal year all prepared in accordance with generally accepted accounting principles and practices and audited by independent certified public accountants. Notwithstanding the foregoing, Franklin Advisers, Inc. (together with its Affiliates, FT), American Express Travel Related Services Company, Inc. (AXP), Banc of America Strategic Investments Corporation, Fifth Third Capital Holdings, LLC, and JPMC (as defined below) shall each be considered a Major Investor for purposes of this Agreement so long as any of them or their respective affiliates hold any shares of capital stock of the Company.
(b) Quarterly Reports. Furnish to each Major Investor as soon as practicable, and in any case within forty-five (45) days of the end of each fiscal quarter of the Company (except the last quarter of the Companys fiscal year), quarterly unaudited financial statements, including an unaudited Balance Sheet, an unaudited Statement of Income and an unaudited Statement of Cash Flows.