SECURITY SHALL BE DEEMED
PURCHASED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS HEREOF AND BCC AND BLTH,
AS APPLICABLE, SHALL BE DEEMED THE OWNER AND HOLDER OF SUCH SECURITY, WHETHER OR
NOT THE CERTIFICATE THEREFOR HAS BEEN DELIVERED AS REQUIRED BY THIS AGREEMENT.
6B.
CONSENT TO AMENDMENTS. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, NO AMENDMENT, MODIFICATION OR WAIVER OF ANY OF THE
PROVISIONS OF THIS AGREEMENT SHALL BE EFFECTIVE AGAINST ANY PARTY HERETO UNLESS
SUCH PARTY HAS CONSENTED TO SUCH AMENDMENT, MODIFICATION OR WAIVER IN WRITING.
NO COURSE OF DEALING BETWEEN ANY PARTIES OR ANY DELAY IN EXERCISING ANY RIGHTS
SHALL OPERATE AS A WAIVER OF ANY RIGHTS.
6C.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
ALL REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN OR MADE IN WRITING BY ANY
PARTY IN CONNECTION HEREWITH SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
6D.
FURTHER ASSURANCES.
EACH OF FPH, KOOSKIA AND
OMX SHALL TAKE ALL ACTIONS AND EXECUTE ALL OTHER DOCUMENTS CONSISTENT WITH ITS
OBLIGATIONS HEREUNDER OR UNDER THE STOCKHOLDERS AGREEMENT OR THE SECURITYHOLDERS
AGREEMENT IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR OTHERWISE
REASONABLY REQUESTED BY BCC AND/OR BLTH IN ORDER TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY.
FURTHERMORE, IF AND WHEN REQUESTED BY BCC OR BLTH IN
CONNECTION WITH THE TRANSFER, SALE OR DISPOSITION OF EQUITY SECURITIES AFTER THE
DATE HEREOF, EACH OF FPH, KOOSKIA AND OMX SHALL MAKE CUSTOMARY REPRESENTATIONS
AND WARRANTIES REGARDING THE TRANSFER OF THE EQUITY SECURITIES OF BCC AND BLTH
HELD BY OMX, KOOSKIA AND/OR FPH (INCLUDING REPRESENTATIONS AND WARRANTIES
REGARDING GOOD TITLE TO SUCH SHARES FREE AND CLEAR OF ANY LIENS, ENCUMBRANCES
AND/OR OTHER RESTRICTIONS) AND OTHER REPRESENTATIONS, WARRANTIES AND
CERTIFICATIONS THAT MAY BE PROVIDED FOR IN CONNECTION WITH A TRANSFER OF EQUITY
SECURITIES BY SUCH HOLDER UNDER THE SECURITYHOLDERS AGREEMENT AND/OR THE
STOCKHOLDERS AGREEMENT (AS HEREINAFTER DEFINED).
6E.
SUCCESSORS AND ASSIGNS. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, ALL COVENANTS AND AGREEMENTS CONTAINED IN THIS
AGREEMENT BY OR ON BEHALF OF ANY OF THE PARTIES HERETO SHALL BIND AND INURE TO
THE BENEFIT OF THE RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS OF THE PARTIES
HERETO,
9
WHETHER SO EXPRESSED OR NOT, UNLESS THE ASSIGNOR AND ASSIGNEE HAVE OTHERWISE
AGREED; PROVIDED THAT NEITHER THIS AGREEMENT NOR ANY OF THE RIGHTS, INTERESTS OR
OBLIGATIONS HEREUNDER MAY BE ASSIGNED BY ANY PERSON WITHOUT THE PRIOR WRITTEN
CONSENT OF THE OTHER PARTIES AFFECTED THEREBY.
6F.
SEVERABILITY. WHENEVER POSSIBLE, EACH
PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED IN SUCH MANNER AS TO BE
EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS AGREEMENT
IS HELD TO BE PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION
SHALL BE INEFFECTIVE ONLY TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY,
WITHOUT INVALIDATING THE REMAINDER OF THIS AGREEMENT.
6G.
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED
SIMULTANEOUSLY IN TWO OR MORE COUNTERPARTS, ANYONE OF WHICH NEED NOT CONTAIN THE
SIGNATURES OF MORE THAN ONE PARTY, BUT ALL SUCH COUNTERPARTS TAKEN TOGETHER
SHALL CONSTITUTE ONE AND THE SAME