B COMMON (IN EACH CASE TO THE EXTENT HELD BY OMX AS OF THE
RECORD DATE FOR SUCH DISTRIBUTION) AS OF OR PRIOR TO THE CLOSING AND SHALL BE
ENTITLED TO ITS PRO RATA SHARE, DETERMINED AS OF THE RECORD DATE FOR SUCH
DISTRIBUTION, OF ALL DISTRIBUTIONS OF CASH AND/OR STOCK RESULTING FROM EXERCISE
OR NON-EXERCISE OF THE UNDERWRITERS' OVER-ALLOTMENT OPTION, WHETHER OR NOT IN
ANY SUCH CASE THE DISTRIBUTION OR PAYMENT DATES THEREFOR OCCUR AFTER THE
CLOSING, AND THAT OMX SHALL NOT BE UNDER ANY OBLIGATION HEREUNDER TO TRANSFER
ANY PORTION OF ANY SUCH DISTRIBUTIONS OR DIVIDENDS TO FPH
5D.
CERTAIN WAIVERS.
EACH OF THE PARTIES HERETO
AGREES THAT NO REPRESENTATION OR WARRANTY IS BEING MADE AND THAT SUCH PARTY IS
ENTERING INTO THIS AGREEMENT WITHOUT RELIANCE UPON ANY ORAL OR WRITTEN
REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE BY BCC OR ANY OF ITS
AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS OR
EMPLOYEES, IN EACH CASE EXCEPT AS EXPRESSLY SET FORTH HEREIN.
WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, EACH PARTY ACKNOWLEDGES AND AGREES THAT SUCH
PARTY HAS MADE ITS OWN INDEPENDENT EVALUATION AND MADE ITS OWN ANALYSIS AS SUCH
PARTY HAS DEEMED
8
NECESSARY, PRUDENT OR ADVISABLE IN ORDER FOR SUCH PARTY TO MAKE ITS OWN
DETERMINATION AND DECISION TO ENTER INTO THIS AGREEMENT AND THE DOCUMENTS
REQUIRING EXECUTION IN CONNECTION WITH THIS AGREEMENT AND TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
EACH PARTY AGREES THAT NO
REPRESENTATION OR WARRANTY IS BEING MADE TO SUCH PARTY AS TO THE CURRENT OR
FUTURE VALUE OF CLASS A COMMON OR CLASS B COMMON RELATIVE TO THE GROSS PRICE PER
SHARE OR THE NET PRICE PER SHARE OR THE PROFITABILITY OR SUCCESS OF BCC AND ITS
SUBSIDIARIES GOING FORWARD.
SECTION 6.
MISCELLANEOUS.
6A.
REMEDIES. EACH PARTY SHALL HAVE ALL RIGHTS AND
REMEDIES SET FORTH IN THIS AGREEMENT, THE SECURITYHOLDERS AGREEMENT AND ALL
RIGHTS AND REMEDIES WHICH SUCH HOLDERS HAVE BEEN GRANTED AT ANY TIME UNDER ANY
OTHER AGREEMENT OR CONTRACT AND ALL OF THE RIGHTS WHICH SUCH HOLDERS HAVE UNDER
ANY LAW.
ANY PERSON HAVING ANY RIGHTS UNDER ANY PROVISION OF THIS AGREEMENT
SHALL BE ENTITLED TO ENFORCE SUCH RIGHTS SPECIFICALLY (WITHOUT POSTING A BOND OR
OTHER SECURITY), TO RECOVER DAMAGES BY REASON OF ANY BREACH OF ANY PROVISION OF
THIS AGREEMENT AND TO EXERCISE ALL OTHER RIGHTS GRANTED BY LAW.
WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, IF BCC AND BLTH MAKE AVAILABLE, AT THE
TIME AND PLACE AND IN THE AMOUNT AND FORM PROVIDED IN THIS AGREEMENT, THE
CONSIDERATION FOR THE PREFERRED STOCK, THE BLTH SERIES A COMMON AND THE BLTH
SERIES B COMMON TO BE PURCHASED IN ACCORDANCE WITH THE PROVISIONS OF THIS
AGREEMENT, THEN FROM AND AFTER SUCH TIME THE HOLDER FROM WHOM SUCH SECURITY IS
TO BE PURCHASED SHALL CEASE TO HAVE ANY RIGHTS AS A HOLDER OF SUCH SECURITY
(OTHER THAN THE RIGHT TO RECEIVE PAYMENT OF SUCH CONSIDERATION UPON SATISFACTION
OF THE REQUIREMENTS SET FORTH HEREIN), AND SUCH