Issuance of Additional Units (i) After the Effective Date, the Partnership may issue additional Preferred Units to the Institutional Investor and the Intrepid Investor in accordance with the terms of this Section 3.1(c)(i) and Section 3.1(c)(iii) with a purchase price for each such Preferred Unit of $1,000 per Preferred Unit, as determined by the General Partner and subject to the limitations contained in the GP LLC Agreement. Prior to issuing any such Preferred Units, the General Partner shall send a written notice notifying the Institutional Investor and the Intrepid Investor of the number of additional Preferred Units the Partnership desires to issue. Upon receipt of such notice, the Intrepid Investor shall have ten (10) Business Days to elect to participate in such issuance (the “Intrepid Election Period”). The Intrepid Investor may purchase up to three percent (3.0%) of such additional Preferred Units by delivering written notice to the General Partner and the Institutional Investor prior to the end of the Intrepid Election Period, which notice shall be irrevocable and shall identify how many of the additional Preferred Units the Intrepid Investor desires to purchase. If the Intrepid Investor fails to deliver such written notice to the General Partner and the Institutional Investor prior to the end of the Intrepid Election Period irrevocably committing the Intrepid Investor to purchase three percent (3%) of such additional Preferred Units in the issuance (or at least such lesser amount that would result in the Intrepid Investor owning not more than a total of 24,000 Preferred Units in the aggregate after giving effect to the purchase), then the Intrepid Investor shall not be permitted to participate in such issuance.
(ii) If, after the Effective Date, (A) an event of default or borrowing base deficiency (or analogous term or event) under any Senior Debt Agreement or any other agreements governing any material Indebtedness of any of the Partnership or its Subsidiaries (including, without limitation, any Replacement Credit Agreement) has occurred and such event of default remains uncured by the Partnership or other Subsidiary, as applicable, then for ten (10) Business Days following receipt by the General Partner of notice of such event or default or (B) any Senior Debt Agreement, Replacement Credit Agreement or any other agreements governing any material Indebtedness of any of the Partnership or its Subsidiaries prohibits either the payment by the Partnership of any Tax Distributions or, following the date that is 12 months following the Effective Date, Distributions in cash on the Preferred Units pursuant to Section 4.1(b) and such prohibition persists for ten (10) Business Days after the date such Distribution is due to be paid, then, the Institutional Investor shall have the right, in its sole discretion, to elect to cause the Partnership to issue additional Preferred Units, which number of Preferred Units shall be determined by the Institutional Investor and the Intrepid Investor in accordance with this Section 3.01(c)(ii) and Section 3.01(c)(iii) in its sole discretion following consultation with the Board, to the Institutional Investor and the Intrepid Investor on the same terms and conditions that the Preferred Units were issued to the Institutional Investor on the Effective Date. In order to exercise such right, the Institutional Investor shall deliver a written notice (an “Additional Preferred Units Notice”) to the General Partner and to the Intrepid Investor setting forth the request and the number of Preferred Units to be issued by the Partnership. Upon receipt of the Additional Preferred Units Notice for a period of ten (10) Business Days after receiving such notice, the Intrepid Investor may elect to purchase up to three percent (3%) of the number of Preferred Units identified in the Additional Preferred Units Notice by delivering a written notice to the General Partner and the Institutional Investor notifying them of such election and irrevocably committing to purchase an identified number of Preferred Units. After the conclusion of such ten (10) Business Days, the General Partner and the Board shall be required to cause the Partnership (x) to enter into a purchase agreement with the Institutional Investor and, if the Intrepid Investor elects to participate, the Intrepid Investor, in substantially the same form attached hereto as Exhibit A (with any such changes to the extent the parties thereto may mutually agree) and (y) to issue the number of Preferred Units set forth in the Additional Preferred Units Notice within twenty (20) Business Days of receipt of the Additional Preferred Units Notice in accordance with such Securities Purchase Agreement. The Partnership shall use the proceeds from the issuance of such Preferred Units to the Institutional Investor and, if the Intrepid Investor elected to participate, the Intrepid Investor, solely to apply to outstanding Indebtedness of the Partnership and its Subsidiaries under the Senior Debt Agreements or any other agreements governing any material Indebtedness of the Partnership or any of its Subsidiaries (including a Replacement Credit Agreement) so as to remedy the applicable condition(s) described in clauses (A) and (B) of this Section 3.1(c)(ii).
(iii) If (A) additional Preferred Units are to be issued pursuant to Section 3.1(c)(i) or Section 3.1(c)(ii) at any time during the period commencing on the Effective Date and ending on the second anniversary of the Effective Date, (B) the total number of Preferred Units then outstanding is not in excess of 800,000 Preferred Units and (C) the Intrepid Investor does not elect to purchase three percent (3.0%) of the proposed issuance (whether by failing to respond or expressly declining to participate), then the Institutional Investor shall have ten (10) Business Days after such failure or refusal by the Intrepid Investor to deliver to the Intrepid Investor a written election notice, which shall be irrevocable (a “Purchase Notice”), stating that the Institutional Investor commits to purchase the Preferred Units held by the Intrepid Investor and its Permitted Transferees, if any, at a price per Preferred Unit equal to the lesser of (1) $650.00 and (2) sixty-five percent (65.0%) of the fair market value of a Preferred Unit, payable in cash or immediately available funds; provided, however, in no event will the Institutional Investor have the right to so purchase Preferred Units from the Intrepid Investor and its Permitted Transferees, if any, pursuant to the Purchase Election if the Intrepid Investor and its Permitted Transferees, if any, (X) then own not less than a total of 24,000 Preferred Units in the aggregate (including any Preferred Units proposed by Intrepid to be purchased concurrently with such proposed issuance) or (Y) has or have elected to purchase a number of additional Preferred Units such that the total number of Preferred Units that will be owned after giving effect to such purchase(s) by the Intrepid Investor and its Permitted Transferee(s), if any, will not be less than 24,000. The closing of the purchase by the Institutional Investor from the Intrepid Investor and its Permitted Transferee(s), if any, of the Preferred Units owned by the Intrepid Investor and such Permitted Transferee(s) shall occur within ten (10) Business Days after delivery of the Purchase Notice to the Intrepid Investor.
(iv) At any time following the Effective Date, the Partnership may issue Common Units, as determined by the General Partner.
Issuance of Additional Partnership Interests The General Partner, in its sole and absolute discretion, may raise all or any portion of the Additional Funds by accepting additional Capital Contributions of cash. The General Partner may also accept additional Capital Contributions of real property or any other non-cash assets. In connection with any such additional Capital Contributions (of cash or property), the General Partner is hereby authorized to cause the Partnership from time to time to issue to Partners (including the General Partner) or other Persons (including, without limitation, in connection with the contribution of tangible or intangible property, services, or other consideration permitted by the Act to the Partnership) additional Partnership Units or other Partnership Interests, which may be Common Units or other Partnership Units issued in one or more classes, or one or more series of any of such classes, with such designations, preferences and relative, participating, optional, conversion, exchange or other special rights, powers, and duties, including rights, powers, and duties senior to then existing Limited Partner Interests, all as shall be determined by the General Partner in its sole and absolute discretion subject to Maryland law, including without limitation, (i) the allocations of items of Partnership income, gain, loss, deduction, and credit to such class or series of Partnership Interests; (ii) the right of each such class or series of Partnership Interests to share in Partnership distributions; (iii) the rights of each such class or series of Partnership Interests upon dissolution and liquidation of the Partnership; and (iv) the right to vote, including, without limitation, the Limited Partner approval rights set forth in Section 11.2.A; provided, that no such additional Partnership Units or other Partnership Interests shall be issued to the General Partner unless either (a)
(1) the additional Partnership Interests are issued in connection with the grant, award, or issuance of shares of the General Partner pursuant to Section 4.3.C below, which shares have designations, preferences, and other rights (except voting rights) such that the economic interests attributable to such shares are substantially similar to the designations, preferences and other rights of the additional Partnership Interests issued to the General Partner in accordance with this Section 4.3.B, and (2) the General Partner shall make a Capital Contribution to the Partnership in an amount equal to any net proceeds raised in connection with such issuance, or (b) the additional Partnership Interests are issued to all Partners holding Partnership Interests in the same class in proportion to their respective Percentage Interests in such class or (c) the additional Partnership Interests are issued pursuant to a Stock Plan. The General Partner’s determination that consideration is adequate shall be conclusive insofar as the adequacy of consideration relates to whether the Partnership Interests are validly issued and paid. In the event that the Partnership issues additional Partnership Interests pursuant to this Section 4.3.B, the General Partner shall make such revisions to this Agreement (including but not limited to the revisions described in Section 5.4, Section 6.2.B, and Section 8.6) as it determines are necessary to reflect the issuance of such additional Partnership Interests.
Issuance of Additional Shares (a) If the Company shall, at any time or from time to time after the issuance of the Shares and until such time as the Purchaser no longer owns any shares of Common Stock issued pursuant to this Agreement (including shares issued pursuant to this Section 5.3) or six (6) months after the date of this Agreement, whichever occurs first, issue shares of Common Stock, options to purchase or rights to subscribe for shares of Common Stock, securities by their terms convertible into, exercisable or exchangeable for shares of Common Stock, or options to purchase or rights to subscribe for such convertible, exercisable or exchangeable securities without consideration or for consideration per share (including, in the case of such options, rights, or securities, the additional consideration required to be paid to the Company upon exercise, conversion or exchange) less than the Effective Price Per Share (as hereinafter defined) (each such issuance, a “Triggering Issuance”), then (i) the Company shall issue to the Purchaser, for no additional consideration, such number of shares of Common Stock which when aggregated with the Shares issued hereunder to Purchaser prior to the applicable Triggering Issuance would result in an effective purchase price per share of Common Stock to the Purchaser (calculated by dividing the Purchase Price by such aggregate number of shares) equal to the effective price per share of Common Stock of the Triggering Issuance (calculated by dividing the total consideration received by the Company for such issuance (as determined below) divided by the number of shares issued (as determined below)), and (ii) the Effective Price Per Share shall be adjusted to equal the effective price per share of Common Stock of the Triggering Issuance. “Effective Price Per Share” shall mean $8.00, as subsequently adjusted pursuant to this Section 5.3. Notwithstanding the foregoing, a Triggering Issuance shall not include any options to purchase shares of Common Stock (or any shares issued in connection therewith) or other form of incentive equity granted or issued under the Company’s 2009 Equity Compensation Plan, or any shares of Common Stock issued to a strategic partner or licensee in connection with a joint venture, strategic alliance, licensing agreement, or other similar form of agreement.
Number of Units and Designation A class of Partnership Preferred Units is hereby designated as “Class Six Partnership Preferred Units,” and the number of Partnership Preferred Units constituting such class shall be 900,000.
Issuance of LTIP Units The General Partner may from time to time cause the Partnership to issue LTIP Units to Persons who provide services to the Partnership or the General Partner, for such consideration as the General Partner may determine to be appropriate, and admit such Persons as Limited Partners. Subject to the following provisions of this Section 4.04 and the special provisions of Sections 4.05 and 5.01(g), LTIP Units shall be treated as Common Units, with all of the rights, privileges and obligations attendant thereto. For purposes of computing the Partners’ Percentage Interests, holders of LTIP Units shall be treated as Common Unit holders and LTIP Units shall be treated as Common Units. In particular, the Partnership shall maintain at all times a one-to-one correspondence between LTIP Units and Common Units for conversion, distribution and other purposes, including, without limitation, complying with the following procedures:
(i) If an Adjustment Event occurs, then the General Partner shall make a corresponding adjustment to the LTIP Units to maintain a one-for-one conversion and economic equivalence ratio between Common Units and LTIP Units. The following shall be “Adjustment Events”: (A) the Partnership makes a distribution on all outstanding Common Units in Partnership Units, (B) the Partnership subdivides the outstanding Common Units into a greater number of units or combines the outstanding Common Units into a smaller number of units, or (C) the Partnership issues any Partnership Units in exchange for its outstanding Common Units by way of a reclassification or recapitalization of its Common Units. If more than one Adjustment Event occurs, the adjustment to the LTIP Units need be made only once using a single formula that takes into account each and every Adjustment Event as if all Adjustment Events occurred simultaneously. For the avoidance of doubt, the following shall not be Adjustment Events: (x) the issuance of Partnership Units in a financing, reorganization, acquisition or other similar business Common Unit Transaction, (y) the issuance of Partnership Units pursuant to any employee benefit or compensation plan or distribution reinvestment plan or (z) the issuance of any Partnership Units to the General Partner in respect of a capital contribution to the Partnership of proceeds from the sale of Additional Securities by the General Partner. If the Partnership takes an action affecting the Common Units other than actions specifically described above as “Adjustment Events” and in the opinion of the General Partner such action would require an adjustment to the LTIP Units to maintain the one-to-one correspondence described above, the General Partner shall have the right to make such adjustment to the LTIP Units, to the extent permitted by law and by any Equity Incentive Plan, in such manner and at such time as the General Partner, in its sole discretion, may determine to be appropriate under the circumstances. If an adjustment is made to the LTIP Units, as herein provided, the Partnership shall promptly file in the books and records of the Partnership an officer’s certificate setting forth such adjustment and a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment absent manifest error. Promptly after filing of such certificate, the Partnership shall mail a notice to each LTIP Unitholder setting forth the adjustment to his or her LTIP Units and the effective date of such adjustment; and