EXTENT THAT ANY OF THE
FOREGOING WOULD NOT HAVE A MATERIAL ADVERSE EFFECT.
(B)
EXCEPT AS DISCLOSED IN SCHEDULE 6.4(B), THE EXECUTION, DELIVERY AND
PERFORMANCE BY EACH BCCM SHAREHOLDER OF THIS AGREEMENT AND EACH ANCILLARY
AGREEMENT TO WHICH SUCH BCCM SHAREHOLDER WILL BE A PARTY AT THE CLOSING AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, WITH RESPECT
TO THAT BCCM SHAREHOLDER ONLY, DO NOT AND WILL NOT AT THE CLOSING (I) IF SUCH
BCCM SHAREHOLDER IS AN ENTITY, VIOLATE THE CHARTER DOCUMENTS OR BYLAWS OF SUCH
BCCM SHAREHOLDER, (II) VIOLATE ANY LAW OR ORDER, (III) REQUIRE ANY FILING WITH
OR THE ISSUANCE OF ANY PERMIT, CONSENT OR APPROVAL OF, OR THE GIVING OF ANY
NOTICE TO, ANY PERSON (INCLUDING FILINGS, CONSENTS OR APPROVALS REQUIRED UNDER
ANY PERMITS OF SUCH BCCM SHAREHOLDER OR ANY LICENSES TO WHICH SUCH BCCM
SHAREHOLDER IS A PARTY), (IV) RESULT IN A VIOLATION OR BREACH OF, CONSTITUTE
(WITH OR WITHOUT DUE NOTICE OR LAPSE OF TIME OR BOTH) A DEFAULT UNDER, OR GIVE
RISE TO ANY RIGHT OF TERMINATION, CANCELLATION OR ACCELERATION OF ANY RIGHT OR
OBLIGATION OF THE BCCM SHAREHOLDER OR TO A LOSS OF ANY BENEFIT TO WHICH SUCH
BCCM SHAREHOLDER IS ENTITLED UNDER, ANY CONTRACT, AGREEMENT OR OTHER INSTRUMENT
BINDING UPON THAT BCCM SHAREHOLDER OR ANY LICENSE, FRANCHISE, PERMIT OR OTHER
SIMILAR AUTHORIZATION HELD BY SUCH BCCM SHAREHOLDER, OR (V) RESULT IN THE
CREATION OR IMPOSITION OF ANY LIEN (OTHER THAN PERMITTED LIENS) ON ANY OWNERSHIP
OR LEASEHOLD INTEREST IN ANY ASSET OF SUCH BCCM SHAREHOLDER, EXCEPT TO THE
EXTENT THAT ANY OF THE FOREGOING WOULD NOT HAVE A MATERIAL ADVERSE EFFECT.
SECTION 6.5
CAPITALIZATION.
(A)
THE AUTHORIZED CAPITAL STOCK OF BCCM
CONSISTS OF 1,851 SHARES OF COMMON STOCK, NO PAR VALUE PER SHARE, OF WHICH (A)
1,586 SHARES ARE ISSUED AND OUTSTANDING, FULLY PAID AND NONASSESSABLE AND (B)
NONE ARE HELD AS TREASURY SHARES AND (II) 6,129 SHARES OF PREFERRED STOCK, ALL
OF WHICH ARE DESIGNATED AS SERIES A PREFERRED STOCK AND ALL OF WHICH ARE ISSUED
AND OUTSTANDING, FULLY PAID AND NONASSESSABLE.
THE BCCM SHARES ARE OWNED OF
RECORD BY THE BCCM SHAREHOLDERS IN THE AMOUNTS AS SET FORTH ON SCHEDULE 6.5(A).
ALL OF THE BCCM SHARES ARE DULY AUTHORIZED, VALIDLY ISSUED AND OUTSTANDING,
FULLY PAID AND NONASSESSABLE.
EXCEPT AS SET FORTH IN THE BCCM SHAREHOLDERS'
AGREEMENT, THERE ARE NO OPTIONS, WARRANTS, PURCHASE RIGHTS, SUBSCRIPTION RIGHTS,
CONVERSION RIGHTS, EXCHANGE RIGHTS, CONVERTIBLE SECURITIES OR OTHER RIGHTS,
AGREEMENT, ARRANGEMENTS OR COMMITMENTS OF ANY CHARACTER RELATING TO THE BCCM
33
SHARES OR OBLIGATING BCCM TO ISSUE, SELL OR OTHERWISE CAUSE TO BECOME
OUTSTANDING ANY SHARES OF CAPITAL STOCK.
THERE ARE NO OUTSTANDING CONTRACTUAL
OBLIGATIONS OF BCCM TO REPURCHASE, REDEEM OR OTHERWISE ACQUIRE ANY SHARES OF, OR
INTERESTS IN, BCCM OR TO PROVIDE FUNDS TO, OR MAKE ANY INVESTMENT (IN THE FORM
OF A LOAN, CAPITAL CONTRIBUTION OR OTHERWISE) IN, ANY OTHER PERSON.
EXCEPT AS
SET FORTH IN THE BCCM SHAREHOLDERS' AGREEMENT, THERE ARE NO OUTSTANDING OR
AUTHORIZED STOCK APPRECIATION, PHANTOM