FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IN CONNECTION WITH THE IPO, AS SUCH
REGISTRATION STATEMENT HAS BEEN AMENDED PRIOR TO THE GRANT OF CONSENT OF OMX
REFERRED TO IN SECTION 1H HEREOF.
SECTION 5.
CERTAIN REPRESENTATIONS,
WARRANTIES AND COVENANTS OF OMX AND FPH.
5A.
OMX REPRESENTATIONS AND WARRANTIES.
WITHOUT
LIMITING THE REPRESENTATIONS AND WARRANTIES MADE BY OMX IN SECTION 3 HEREOF (AND
EACH OF THE REPRESENTATIONS AND WARRANTIES IN THE FIRST SENTENCE OF WHICH IS
HEREBY REMADE FOR THE BENEFIT OF FPH), OMX HEREBY REPRESENTS, WARRANTS AND
COVENANTS FOR THE BENEFIT OF THE OTHER PARTIES HERETO THAT IT OWNS, AND ON THE
DATE(S) OF PURCHASE AND SALE OF ANY CAPITAL STOCK TO ANY OTHER PERSON HEREUNDER
(I.E., AT THE CLOSING AND EACH SUBSEQUENT CLOSING), WILL OWN, ALL RIGHT, TITLE
AND INTEREST IN AND TO THE SHARES OF CAPITAL STOCK TO BE TRANSFERRED HEREUNDER,
FREE AND CLEAR OF ALL LIENS, ENCUMBRANCES, AND OTHER RESTRICTIONS ON TRANSFER
(OTHER THAN THOSE SET FORTH IN THE SECURITYHOLDERS AGREEMENT, THE REGISTRATION
AGREEMENT AND PURSUANT TO APPLICABLE SECURITIES LAWS).
5B.
FPH REPRESENTATIONS AND WARRANTIES.
AS A
MATERIAL INDUCEMENT TO OMX TO ENTER INTO THIS AGREEMENT, FPH REPRESENTS AND
WARRANTS THAT (I) THIS AGREEMENT AND THE DOCUMENTS REQUIRING EXECUTION BY FPH IN
CONNECTION WITH THIS AGREEMENT, AND FPH'S PERFORMANCE HEREUNDER AND THEREUNDER,
HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY FPH AND THIS AGREEMENT
CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATIONS OF SUCH PARTY, ENFORCEABLE
IN ACCORDANCE WITH THEIR TERMS, EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS AFFECTING
CREDITORS' RIGHTS GENERALLY AND LIMITATIONS ON THE AVAILABILITY OF EQUITABLE
REMEDIES, (II) FPH IS ACQUIRING THE SHARES OF CLASS B COMMON FOR ITS OWN ACCOUNT
WITH THE PRESENT INTENTION OF HOLDING SUCH SECURITIES FOR PURPOSES OF
INVESTMENT, AND NOT WITH A VIEW TO OR FOR THE SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE FEDERAL SECURITIES LAWS OR ANY APPLICABLE STATE
SECURITIES LAWS, (III) FPH IS AN "ACCREDITED INVESTOR" (AS DEFINED) UNDER
REGULATION D UNDER THE SECURITIES ACT OF 1933 (AS AMENDED), IS SOPHISTICATED IN
FINANCIAL MATTERS AND IS ABLE TO EVALUATE THE RISKS AND BENEFITS OF THE
INVESTMENT IN THE SHARES OF CLASS B COMMON TO BE PURCHASED, (IV) FPH IS ABLE TO
BEAR THE ECONOMIC RISK OF ITS INVESTMENT IN THE CLASS B COMMON FOR AN INDEFINITE
PERIOD OF TIME, AND (V) FPH HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND RECEIVE
ANSWERS CONCERNING THE TERMS AND CONDITIONS OF THE OFFERING OF THE CLASS B
COMMON AND HAS HAD FULL ACCESS TO SUCH OTHER INFORMATION CONCERNING BCC AND ITS
SUBSIDIARIES AS IT HAS REQUESTED.
5C.
DIVIDENDS.
BCC AGREES THAT THE RECORD DATE
FOR THE CASH AND/OR STOCK DIVIDENDS REFERRED TO IN SECTION 1E HEREOF SHALL BE
PRIOR TO THE CLOSING, THAT OMX SHALL BE ENTITLED TO ALL DISTRIBUTIONS OF CASH
AND/OR STOCK (INCLUDING AS MAY RESULT FROM THE EXERCISE OR NON-EXERCISE OF THE
UNDERWRITERS' OVER-ALLOTMENT OPTION) DECLARED OR PAYABLE TO HOLDERS OF CLASS A
COMMON OR CLASS