BEING UNDERSTOOD AND AGREED THAT ANY CONSENT SHALL BE IN OMX'S SOLE DISCRETION
AND THERE SHALL BE NO OBLIGATION ON THE PART OF OMX TO CONSENT TO ANY PARTICULAR
PRICE OR NUMBER OF SHARES).
SECTION 2.
CERTAIN COVENANTS AND
AGREEMENTS.
2A.
SECURITYHOLDERS AGREEMENT.
EACH OF BCC, FPH AND
OMX ACKNOWLEDGES AND AGREES FOR THE BENEFIT OF THE OTHER PARTIES THERETO AND THE
MANAGING UNDERWRITERS OF THE IPO THAT, UPON CONSUMMATION OF THE IPO, ALL RIGHTS
AND OBLIGATIONS OF THE PARTIES TO THE SECURITYHOLDERS AGREEMENT SHALL TERMINATE
(OTHER THAN RIGHTS AND OBLIGATIONS WHICH BY THEIR TERMS SURVIVE TERMINATION OF
THE SECURITYHOLDERS AGREEMENT) WITHOUT LIABILITY TO ANY PARTY THEREUNDER.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH OF OMX AND FPH EXPRESSLY
AGREE THAT THEY ARE WAIVING ALL RIGHTS UNDER SECTION 6 OF THE SECURITYHOLDERS
AGREEMENT AND ALL OTHER PREEMPTIVE RIGHTS IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY (INCLUDING, WITHOUT LIMITATION, THE ISSUANCE OF THE CLASS A
COMMON IN CONNECTION WITH THE IPO, THE ISSUANCE OF SECURITIES UPON CONVERSION OF
BCC FROM A LIMITED LIABILITY COMPANY TO A CORPORATION AND THE ISSUANCE OF
CLASS A COMMON IN EXCHANGE FOR CLASS C COMMON).
2B.
REGISTRATION RIGHTS AGREEMENT.
EACH OF FPH
AND OMX WAIVES ALL RIGHTS TO EXERCISE ANY PIGGYBACK REGISTRATION RIGHTS
(INCLUDING AS MAY ARISE UNDER SECTION 2 OF THE REGISTRATION RIGHTS AGREEMENT) IN
CONNECTION WITH THE IPO (INCLUDING ANY EXERCISE OF THE UNDERWRITERS'
OVER-ALLOTMENT OPTION IN CONNECTION THEREWITH).
EACH OF FPH AND OMX AGREE THAT,
ON OR PRIOR TO THE IPO DATE, IT SHALL EXECUTE AND DELIVER TO THE MANAGING
UNDERWRITERS FOR THE IPO A LOCK-UP AGREEMENT WITH THE MANAGING UNDERWRITERS FOR
THE IPO IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO FPH AND OMX.
FURTHERMORE, EACH OF FPH AND OMX AGREE THAT, FROM AND AFTER THE IPO DATE, THE
DEFINITION OF "COMMON STOCK" IN THE
5
REGISTRATION RIGHTS AGREEMENT SHALL BE AMENDED AND RESTATED AS FOLLOWS:
"'COMMON STOCK' MEANS THE CLASS A COMMON STOCK OF THE COMPANY, PAR VALUE $0.01
PER SHARE."
FURTHERMORE, OMX ACKNOWLEDGES THAT, AFTER THE IPO DATE, BCC MAY, IN
ORDER TO COMPLY WITH SECURITIES LAWS, ELECT TO FILE A REGISTRATION STATEMENT FOR
THE DISTRIBUTION OF SECURITIES OF BCC HELD BY FPH AND HEREBY AGREES TO WAIVE ANY
RIGHTS UNDER THE REGISTRATION RIGHTS AGREEMENT OR OTHERWISE, INCLUDING PIGGYBACK
REGISTRATION RIGHTS, TO INCLUDE SECURITIES OWNED BY OMX IN SUCH REGISTRATION;
PROVIDED THAT AS A CONDITION TO SUCH DISTRIBUTION, FPH SHALL ASSIGN ALL OF ITS
RIGHTS AND OBLIGATIONS UNDER THE REGISTRATION RIGHTS AGREEMENT, THE STOCKHOLDERS
AGREEMENT (AS HEREINAFTER DEFINED) AND THE SECURITYHOLDERS AGREEMENT TO MADISON
DEARBORN CAPITAL PARTNERS IV, L.P. ("MDP") (IT BEING ACKNOWLEDGED AND AGREED
THAT MDP IS AN AFFILIATE (AS SUCH TERM IS DEFINED IN EACH SUCH RESPECTIVE
AGREEMENT) OF FPH).
WHEN USED HEREIN, "REGISTRATION RIGHTS AGREEMENT" MEANS
THAT CERTAIN REGISTRATION RIGHTS AGREEMENT, DATED AS OF OCTOBER 29, 2004, BY AND
AMONG BCC, OMX AND FPH.
2C.
STOCKHOLDERS AGREEMENT.
WHEN USED HEREIN,
"STOCKHOLDERS AGREEMENT" MEANS THAT CERTAIN STOCKHOLDERS AGREEMENT, DATED AS OF
OCTOBER 29, 2004, BY AND AMONG