Common use of Exchange Rights of Exchangeable Preferred Units Clause in Contracts

Exchange Rights of Exchangeable Preferred Units. (a) During an Exchangeable Preferred Period with respect to a series of Exchangeable Preferred Limited Partnership Interest, such series of Exchangeable Preferred Limited Partnership Interest shall be exchangeable, in whole but not in part, (i) at the option of the Limited Partners holding the Preferred Required Voting Percentage with respect to such series (a “Limited Partner Optional Preferred Exchange”), or (ii) at the option of the Partnership (a “Partnership Optional Preferred Exchange”), in the case of each of (i) and (ii), through exchange by the Partnership for shares of Newmark Class A Common Stock, on the terms, and subject to the conditions, set forth in this Article IX (an “Exchangeable Preferred Newmark Exchange”). (b) In an Exchangeable Preferred Newmark Exchange, the entire Exchangeable Preferred Limited Partnership Interest that shall be exchangeable shall be exchangeable during the applicable Exchangeable Preferred Period for: (i) if the Business Revenue applicable to such Exchangeable Preferred Limited Partnership Interest is equal to or greater than the Target Revenue, a number of shares of Newmark Class A Common Stock equal to the Ultimate Liquidation Preference of such Exchangeable Preferred Limited Partnership Interest divided by $14.78; and (ii) if the Business Revenue applicable to such Exchangeable Preferred Limited Partnership Interest is less than the Target Revenue, a number of shares of Newmark Class A Common Stock equal to the Newmark Common Stock Amount applicable to such Exchangeable Preferred Limited Partnership Interest. Upon an Exchangeable Preferred Newmark Exchange, Newmark agrees to issue to the Partnership a number of shares of Newmark Class A Common Stock determined in accordance with the immediately preceding sentence. As payment for such shares of Newmark Class A Common Stock issued pursuant to the immediately preceding sentence, (A) on the date of issuance of such shares of Newmark Class A Common Stock, the Partnership shall pay to Newmark an aggregate amount of cash equal to the aggregate par value of such shares of Newmark Class A Common Stock and (B) on the “Modified Physical Settlement Payment Date” (as such term is defined in the Variable Forward Transaction Confirmation), the Partnership shall pay to Newmark an aggregate amount of cash equal to (x) the “Settlement Value” payable by the holder of such Exchangeable Preferred Limited Partnership Interest to the “Counterparty” upon a “Modified Physical Settlement” (as such terms are defined in the Variable Forward Transaction Confirmation) minus (y) the aggregate amount of cash paid by the Partnership to Newmark pursuant to clause (A) above. Unless otherwise determined by the board of directors of Newmark, Newmark shall, immediately following the receipt of the aggregate amount of cash described in clause (A) and clause (B) above, contribute such aggregate amount of cash to the Partnership in exchange for a Limited Partnership Interest consisting of a number of Units equal to (x) the number of shares of Newmark Class A Common Stock issued pursuant to this Section 9.01(b) in respect of the exchange of such Exchangeable Preferred Limited Partnership Interest, divided by (y) the Exchange Ratio as of immediately prior to the issuance of such shares of Newmark Class A Common Stock. (c) A holder of Exchangeable Preferred Limited Partnership Interest is not entitled to any rights of a holder of shares of Newmark Class A Common Stock with respect to such Exchangeable Preferred Limited Partnership Interest unless and until such Interest shall have been exchanged therefor in accordance with this Article IX.

Exchange Rights of Exchangeable Preferred Units. (a) During an Exchangeable Preferred Period with respect to a series of Exchangeable Preferred Limited Partnership Interest, such series of Exchangeable Preferred Limited Partnership Interest shall be exchangeable, in whole but not in part, (i) at the option of the Limited Partners holding the Preferred Required Voting Percentage with respect to such series (a “Limited Partner Optional Preferred Exchange”), or (ii) at the option of the Partnership (a “Partnership Optional Preferred Exchange”), in the case of each of (i) and (ii), through exchange by the Partnership for shares of Newmark Class A Common Stock, on the terms, and subject to the conditions, set forth in this Article IX (an “Exchangeable Preferred Newmark Exchange”). (b) In an Exchangeable Preferred Newmark Exchange, the entire Exchangeable Preferred Limited Partnership Interest that shall be exchangeable shall be exchangeable during the applicable Exchangeable Preferred Period for: : (i) in the case of the Series A Exchangeable Preferred Limited Partnership Interest or the Series B Exchangeable Preferred Limited Partnership Interest, (1) if the Business Revenue applicable to such Exchangeable Preferred Limited Partnership Interest is equal to or greater than the Series A/B Target Revenue, a number of shares of Newmark Class A Common Stock equal to the Ultimate Liquidation Preference of such Exchangeable Preferred Limited Partnership Interest divided by $14.78; and (ii2) if the Business Revenue applicable to such Exchangeable Preferred Limited Partnership Interest is less than the Series A/B Target Revenue, a number of shares of Newmark Class A Common Stock equal to the Newmark Common Stock Amount applicable to such Exchangeable Preferred Limited Partnership Interest; and (ii) in the case of the Series C Exchangeable Preferred Limited Partnership Interest or the Series D Exchangeable Preferred Limited Partnership Interest, (1) if the Business Revenue applicable to such Exchangeable Preferred Limited Partnership Interest is equal to or greater than the Series C/D Target Revenue for such Exchangeable Preferred Limited Partnership Interest, a number of shares of Newmark Class A Common Stock equal to the Ultimate Liquidation Preference of such Exchangeable Preferred Limited Partnership Interest divided by $11.08; and (2) if the Business Revenue applicable to such Exchangeable Preferred Limited Partnership Interest is less than the Series C/D Target Revenue for such Exchangeable Preferred Limited Partnership Interest, a number of shares of Newmark Class A Common Stock equal to the Newmark Common Stock Amount applicable to such Exchangeable Preferred Limited Partnership Interest. Upon an Exchangeable Preferred Newmark Exchange, Newmark agrees to issue to the Partnership a number of shares of Newmark Class A Common Stock determined in accordance with the immediately preceding sentenceclause (i) or (ii), as applicable. As payment for such shares of Newmark Class A Common Stock issued pursuant to the immediately preceding sentenceclause (i) or (ii), as applicable, (A) on the date of issuance of such shares of Newmark Class A Common Stock, the Partnership shall pay to Newmark an aggregate amount of cash equal to the aggregate par value of such shares of Newmark Class A Common Stock and (B) on the “Modified Physical Settlement Payment Date” (as such term is defined in the Variable Forward Transaction Confirmation), the Partnership shall pay to Newmark an aggregate amount of cash equal to (x) the “Settlement Value” payable by the holder of such Exchangeable Preferred Limited Partnership Interest to the “Counterparty” upon a “Modified Physical Settlement” (as such terms are defined in the Variable Forward Transaction Confirmation) minus (y) the aggregate amount of cash paid by the Partnership to Newmark pursuant to clause (A) above. Unless otherwise determined by the board of directors of Newmark, Newmark shall, immediately following the receipt of the aggregate amount of cash described in clause (A) and clause (B) above, contribute such aggregate amount of cash to the Partnership in exchange for a Limited Partnership Interest consisting of a number of Units equal to (x) the number of shares of Newmark Class A Common Stock issued pursuant to this Section 9.01(b) in respect of the exchange of such Exchangeable Preferred Limited Partnership Interest, divided by (y) the Exchange Ratio as of immediately prior to the issuance of such shares of Newmark Class A Common Stock. (c) A holder of Exchangeable Preferred Limited Partnership Interest is not entitled to any rights of a holder of shares of Newmark Class A Common Stock with respect to such Exchangeable Preferred Limited Partnership Interest unless and until such Exchangeable Preferred Limited Partnership Interest shall have been exchanged therefor in accordance with this Article IX.

Exchange Rights of Exchangeable Preferred Units. (a) During an Exchangeable Preferred Period with respect to a series of Exchangeable Preferred Limited Partnership Interest, such series of Exchangeable Preferred Limited Partnership Interest shall be exchangeable, in whole but not in part, (i) at the option of the Limited Partners holding the Preferred Required Voting Percentage with respect to such series (a “Limited Partner Optional Preferred Exchange”), or (ii) at the option of the Partnership (a “Partnership Optional Preferred Exchange”), in the case of each of (i) and (ii), through exchange by the Partnership for shares of Newmark Class A Common Stock, on the terms, and subject to the conditions, set forth in this Article IX (an “Exchangeable Preferred Newmark Exchange”). (b) In an Exchangeable Preferred Newmark Exchange, the entire Exchangeable Preferred Limited Partnership Interest that shall be exchangeable shall be exchangeable during the applicable Exchangeable Preferred Period for: : (i) in the case of the Series A Exchangeable Preferred Limited Partnership Interest or the Series B Exchangeable Preferred Limited Partnership Interest, (1) if the Business Revenue applicable to such Exchangeable Preferred Limited Partnership Interest is equal to or greater than the Series A/B Target Revenue, a number of shares of Newmark Class A Common Stock equal to the Ultimate Liquidation Preference of such Exchangeable Preferred Limited Partnership Interest divided by $14.78; and (ii2) if the Business Revenue applicable to such Exchangeable Preferred Limited Partnership Interest is less than the Series A/B Target Revenue, a number of shares of Newmark Class A Common Stock equal to the Newmark Common Stock Amount applicable to such Exchangeable Preferred Limited Partnership Interest; and (ii) in the case of the Series C Exchangeable Preferred Limited Partnership Interest or the Series D Exchangeable Preferred Limited Partnership Interest, (1) if the Business Revenue applicable to such Exchangeable Preferred Limited Partnership Interest is equal to or greater than the Series C/D Target Revenue for such Exchangeable Preferred Limited Partnership Interest, a number of shares of Newmark Class A Common Stock equal to the Ultimate Liquidation Preference of such Exchangeable Table of Contents Preferred Limited Partnership Interest divided by $11.08; and (2) if the Business Revenue applicable to such Exchangeable Preferred Limited Partnership Interest is less than the Series C/D Target Revenue for such Exchangeable Preferred Limited Partnership Interest, a number of shares of Newmark Class A Common Stock equal to the Newmark Common Stock Amount applicable to such Exchangeable Preferred Limited Partnership Interest. Upon an Exchangeable Preferred Newmark Exchange, Newmark agrees to issue to the Partnership a number of shares of Newmark Class A Common Stock determined in accordance with the immediately preceding sentenceclause (i) or (ii), as applicable. As payment for such shares of Newmark Class A Common Stock issued pursuant to the immediately preceding sentenceclause (i) or (ii), as applicable, (A) on the date of issuance of such shares of Newmark Class A Common Stock, the Partnership shall pay to Newmark an aggregate amount of cash equal to the aggregate par value of such shares of Newmark Class A Common Stock and (B) on the “Modified Physical Settlement Payment Date” (as such term is defined in the Variable Forward Transaction Confirmation), the Partnership shall pay to Newmark an aggregate amount of cash equal to (x) the “Settlement Value” payable by the holder of such Exchangeable Preferred Limited Partnership Interest to the “Counterparty” upon a “Modified Physical Settlement” (as such terms are defined in the Variable Forward Transaction Confirmation) minus (y) the aggregate amount of cash paid by the Partnership to Newmark pursuant to clause (A) above. Unless otherwise determined by the board of directors of Newmark, Newmark shall, immediately following the receipt of the aggregate amount of cash described in clause (A) and clause (B) above, contribute such aggregate amount of cash to the Partnership in exchange for a Limited Partnership Interest consisting of a number of Units equal to (x) the number of shares of Newmark Class A Common Stock issued pursuant to this Section 9.01(b) in respect of the exchange of such Exchangeable Preferred Limited Partnership Interest, divided by (y) the Exchange Ratio as of immediately prior to the issuance of such shares of Newmark Class A Common Stock. (c) A holder of Exchangeable Preferred Limited Partnership Interest is not entitled to any rights of a holder of shares of Newmark Class A Common Stock with respect to such Exchangeable Preferred Limited Partnership Interest unless and until such Exchangeable Preferred Limited Partnership Interest shall have been exchanged therefor in accordance with this Article IX.