Exhibit 10.36


 


Exhibit C


to Merger Agreement




 





 


 


REGISTRATION RIGHTS
AGREEMENT


 


among


 


FIRST WIND HOLDINGS INC.


 


and


 


THE STOCKHOLDERS NAMED
HEREIN


 


Dated as of
          , 2010


 




 





 

















 


REGISTRATION RIGHTS
AGREEMENT


 


among


 


FIRST WIND HOLDINGS INC.


 


and


 


THE STOCKHOLDERS NAMED
HEREIN


 


REGISTRATION RIGHTS AGREEMENT, dated as of
          , 2010 (as amended
from time to time, this “Agreement”),
among First Wind Holdings Inc., a Delaware corporation (“WIND”),
and each of the parties listed on Annex A (the “Initial
Stockholders” and, as Annex A is updated and amended pursuant to
Section 11(c), the “Stockholders”).


 


W I T N E S S E T H:


 


WHEREAS, WIND has agreed to provide the
Stockholders the registration rights provided herein;


 


NOW, THEREFORE, the parties hereto hereby agree as
follows:


 


SECTION 1.  Definitions. 
As used in this Agreement, the following terms have the
following meanings:


 


“Agreement” is
defined in the preamble.


 


“Alberta Entities”
means, collectively, PIP3PX FirstWind LLC Ltd. and PIP3GV FirstWind LLC Ltd.


 


“Business Day”
means any day except a Saturday, Sunday or other day on which commercial banks
in Boston, Massachusetts or New York City, New York are authorized by law to
close.


 


“Class A Shares”
means shares of Class A common stock, par value $0.001 per share, of WIND.


 


“Class B Shares”
means shares of Class B common stock, par value $0.001 per share, of WIND.


 


“Commission”
means the U.S. Securities and Exchange Commission or any successor thereto.


 


“Common Equity Securities”
means the Class A Shares and all shares hereafter authorized of any class or
series of common stock or other common 


 


1

















 


equity interests of WIND and any and all securities
of any kind whatsoever of WIND or any successor thereof which may be issued on
or after the date hereof in respect of, in exchange for, or upon conversion of
shares of Common Equity Securities pursuant to a merger, consolidation, stock
split, reverse split, stock dividend, recapitalization of WIND or otherwise,
which shares have the right (subject to the rights of any class or series of
preferred stock or other preferred equity interests of WIND) to participate in
the distribution of the assets and earnings of WIND without limit as to per
share (or other denomination) amount; provided that
Common Equity Securities shall not include the Class B Shares.


 


“Company” means
First Wind Holdings, LLC, a Delaware limited liability company.


 


“Demanding Stockholder”
is defined in Section 2(a).


 


“Demand Notice”
is defined in Section 2(a).


 


“Demand Registration”
is defined in Section 2(a).


 


“Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended from time to time,
and any successor statute thereto and the rules and regulations of the
Commission promulgated thereunder.


 


“Exchange Agreement”
means the Exchange Agreement dated as of the date hereof among WIND, the
Company and the other parties thereto, as the same may be amended from time to
time in accordance with the terms thereof.


 


“indemnified party”
and “indemnifying party” are defined in
Section 7(c).


 


“Initial Stockholders”
is defined in the preamble.


 


“Investor Shares”
means the Registrable Securities issued in respect of Series A Units, Series
A-1 Units and/or Series A-2 Units (including, for the avoidance of doubt, those
issued to D.E. Shaw MWPH Acquisition Holdings, L.L.C.) in connection with the
IPO Merger.


 


“IPO” means the
initial public offering of Class A Shares by WIND in connection with the IPO
Merger.


 


“IPO Merger”
means the merger of First Wind Merger, LLC, a subsidiary of WIND, with and into
the Company.


 


“Losses” is
defined in Section 7(a).


 


“Management Shares”
means the Registrable Securities issued to the holders of Series B Units in the
IPO Merger.


 


2

















 


“Notice” is
defined in Section 2(a).


 


“Partner Distribution”
is defined in Section 2(a).


 


“Permitted Transferee”
is defined in Section 11(c).


 


“Person” means
any natural person, corporation, limited partnership, general partnership,
limited liability company, joint stock company, joint venture, association,
company, estate, trust, bank trust company, land trust, business trust or other
organization, whether or not a legal entity, custodian, trustee-executor,
administrator, nominee or entity in a representative capacity and any
government or agency or political subdivision thereof.


 


“Piggyback Notice”
is defined in Section 3(a).


 


“Piggyback Registration”
is defined in Section 3(a).


 


“Prior LLC Agreement”
means the Fifth Amended and Restated Limited Liability Company Agreement of the
Company, dated as of July 17, 2009.


 


“Proceeding”
means an action, claim, suit, arbitration or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.


 


“Prospectus”
means the prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective Registration Statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including, without limitation, post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.


 


“Registrable Securities”
means (a) all shares or other denominations of Common Equity Securities of WIND
initially issued pursuant to the Exchange Agreement (including, without
limitation, any Common Equity Securities issued or distributed by way of
dividend, stock split or other distribution in respect of such shares or other
denominations of Common Equity Securities) held by the Stockholders and,
subject to the next succeeding sentence and Section 11(c) hereof, any successor
or assign of such shares, (b) all shares or other denominations of Common Equity
Securities issuable upon exchange or conversion of any Class B Shares and/or
Series B Membership Interests in the Company and (c) the shares or other
denominations of Common Equity Securities


 


3

















 


acquired by the Stockholders after the date
hereof.  For the avoidance of doubt, a
holder of Registrable Securities may include in any registration (including,
without limitation, “shelf” registration) Common Equity Securities issuable
upon exchange or conversion of Class B Shares and/or Series B Membership
Interests in the Company without having effected such exchange or conversion as
long as such exchange or conversion is effected prior to disposition thereof in
accordance with such registration.  As to
any particular Registrable Securities, once issued such securities shall cease
to be Registrable Securities when (i) a Registration Statement covering such
Registrable Securities has been declared effective under the Securities Act by
the Commission and such Registrable Securities have been disposed of pursuant
to such effective Registration Statement, (ii) they have been distributed to
the public pursuant to Rule 144, or (iii) they have been sold to any Person to
whom the rights under this Agreement are not assigned in accordance with this
Agreement.  No Registrable Securities may
be registered under more than one Registration Statement at any one time.


 


“Registration Statement”
means any registration statement of WIND under the Securities Act which permits
the public offering of any of the Registrable Securities pursuant to the
provisions of this Agreement, including, without limitation, the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.


 


“Rule 144” means
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission.


 


“Shelf Offering”
is defined in Section 2(e).


 


“Securities Act”
means the U.S. Securities Act of 1933, as amended from time to time, and any
successor statute thereto and the rules and regulations of the Commission
promulgated thereunder.


 


“Series A Units”
means the Series A Units issued by the Company pursuant to the Prior LLC
Agreement.


 


“Series A-1 Units”
means the Series A-1 Units issued by the Company pursuant to the Prior LLC
Agreement.


 


“Series A-2 Units”
means the Series A-2 Units issued by the Company pursuant to the Prior LLC
Agreement.


 


“Series B Units”
means the Series B Units issued by the Company pursuant to the Prior LLC
Agreement.


 


4

















 


“Stockholders”
is defined in the preamble.


 


“Subsequent Holder”
is defined in Section 11(c).


 


“Take-Down Notice”
is defined in Section 2(e).


 


“underwritten registration”
or “underwritten offering” means a
registration in which securities of WIND are sold to an underwriter for
reoffering to the public.


 


“WIND” is
defined in the preamble.


 


SECTION 2.  Demand Registration.


 


(a)        Requests
for Registration.  Subject to the limits set forth below, at any
time after the IPO, each of D. E. Shaw MWP Acquisition Holdings, L.L.C. (or its
designated Permitted Transferee), D. E. Shaw MWPH Acquisition Holdings, L.L.C.
(or its designated Permitted Transferee) (collectively “D. E. Shaw”)),
Madison Dearborn Capital Partners IV, L.P. (or its designated Permitted
Transferee) (collectively “Madison Dearborn”)),
UPC Wind Partners II, LLC (or its designated Permitted Transferee)
(collectively “UPC Holding”)), and the Alberta
Entities (or their designated Permitted Transferee) (collectively “Alberta”)) shall have the right by delivering a written
notice to WIND (a “Demand Notice”,
and the Stockholder submitting such Demand Notice, a “Demanding
Stockholder”) to require WIND to register, pursuant to the terms of
this Agreement under and in accordance with the provisions of the Securities
Act, the number of Registrable Securities requested to be so registered
pursuant to the terms of this Agreement (a “Demand
Registration”).  Within ten
(10) days after receipt by WIND of a Demand Notice, WIND shall give written
notice (the “Notice”) of such Demand Notice to
all other holders of Registrable Securities and shall, subject to the
provisions of subsection (b), include in such registration all Registrable
Securities with respect to which WIND received written requests for inclusion
therein within ten (10) days after such Notice is given by WIND to such
holders. A Demand Notice (including a Demand Notice that is also a Take-Down
Notice) shall only be binding on WIND if the sale of all Registrable Securities
requested to be registered (pursuant to the Demand Notice and in response to
the Notice) is reasonably expected to result in aggregate gross proceeds in
excess of $100,000,000.


 


Following receipt of a Demand Notice for a Demand
Registration, WIND shall use its reasonable best efforts to file a Registration
Statement as promptly as practicable, but not later than 60 days after such
Demand Notice, and shall use its reasonable best efforts to cause such
Registration Statement to be declared effective under the Securities Act as
promptly as practicable after the filing thereof.


 


5

















 


Each of D. E. Shaw and Madison Dearborn shall be
entitled to request four (4) Demand Registrations, and each of UPC Holding and
Alberta shall be entitled to request two (2) Demand Registrations; provided, however,
that there shall be no limit to the number of Demand Registrations that
constitute “shelf” registrations as contemplated by the next succeeding
sentence. After such time as WIND shall become eligible to use Form S-3 (or
comparable form) for the registration under the Securities Act of any of its
securities, D. E. Shaw, Madison Dearborn, UPC Holding or Alberta shall be
entitled to request that any Demand Registration for which such Stockholder is
delivering a Demand Notice be a “shelf” registration pursuant to Rule 415 under
the Securities Act, and each of D. E. Shaw, Madison Dearborn, UPC Holding and
Alberta shall be entitled to an unlimited number of Demand Registrations that
constitute “shelf” registrations. Notwithstanding any other provisions of this
Section 2, in no event shall more than one Demand Registration occur within any
six (6) month period from the effective date of any Registration Statement
filed pursuant to a prior Demand Notice.


 


No Demand Registration shall be deemed to have
occurred for purposes of this Section 2 if (i) the Registration Statement
relating to such Demand Registration does not become effective, (ii) the
Registration Statement relating to such Demand Registration is not maintained
effective for the period required pursuant to this subsection (a), (iii) the
offering of the Registrable Securities pursuant to the Registration Statement
relating to such Demand Registration is subject to a stop order, injunction or
similar order or requirement of the Commission during such period, or (iv) the
Demand Registration does not become effective because the Demanding Stockholder
withdraws its Demand Notice because a material adverse change has occurred, or
is reasonably likely to occur, in the condition (financial or otherwise), prospects,
business, assets or results of operations of WIND and its subsidiaries taken as
a whole subsequent to the date of the delivery of the Demand Notice.


 


All requests made pursuant to this Section 2 will
specify the amount of Registrable Securities to be registered and the intended
methods of disposition thereof.


 


WIND shall be required to maintain the
effectiveness of the Registration Statement (except in the case of a requested “shelf”
registration) with respect to any Demand Registration for a period of at least
180 days after the effective date thereof or such shorter period in which all
Registrable Securities included in such Registration Statement have actually
been sold; provided, however, that such period shall be extended for a period
of time equal to the period the holder of Registrable Securities refrains from
selling any securities included in such registration at the request of (x) an
underwriter or (y) WIND pursuant to the provisions of this Agreement. WIND
shall be required to maintain the effectiveness of a “shelf” Registration
Statement with respect to any Demand


 


6

















 


Registration at all times until the third
anniversary of the effective date thereof, or, if earlier, until all
Registrable Securities included in such Registration Statement have actually
been sold; provided, however, that any Stockholder owning Common Equity
Securities that have been included on a “shelf” Registration Statement may
request that such Common Equity Securities be removed from such Registration
Statement, in which event WIND shall promptly either withdraw such Registration
Statement if the Common Equity Securities of such Stockholder are the only
Common Equity Securities still covered by such Registration Statement or file a
post-effective amendment to such Registration Statement removing such Common
Equity Securities.


 


Notwithstanding anything contained herein to the
contrary, WIND hereby agrees that (i) each Demand Registration that is a “shelf”
registration pursuant to Rule 415 under the Securities Act shall contain all
language (including, without limitation, on the Prospectus cover sheet, the
principal stockholders’ chart and the plan of distribution) as may be
reasonably requested by a holder of Registrable Securities to allow for a
distribution to, and resale by, the direct and indirect affiliates, partners,
members or stockholders of a holder of Registrable Securities (a “Partner Distribution”) and (ii) WIND shall, at the
reasonable request of any holder of Registrable Securities seeking to effect a
Partner Distribution, file any Prospectus supplement or post-effective
amendments and otherwise take any action reasonably necessary to include such
language, if such language was not included in the initial Registration
Statement, or revise such language if deemed reasonably necessary by such
holder to effect such Partner Distribution.


 


(b)        Priority
on Demand Registration.  If any of the Registrable Securities
registered pursuant to a Demand Registration are to be sold in a firm
commitment underwritten offering, and the managing underwriter or underwriters
advise the holders of such securities in writing that in its or their view the
total number or dollar amount of Registrable Securities proposed to be sold in
such offering is such as to adversely affect the success of such offering
(including, without limitation, securities proposed to be included by other
holders of securities entitled to include securities in such offering pursuant
to incidental or piggyback registration rights), then the number of Registrable
Securities that in the opinion of such managing underwriter can be sold without
adversely affecting such offering shall be included in the following order:


 


(i)        first, Investor Shares, on a pro rata
basis based upon the number of Registrable Securities owned;


 


(ii)       second, subject to the following
paragraph, Management Shares, on a pro rata basis based upon the number of
Registrable Securities owned; and


 


7

















 


(iii)      third, any other shares of Common Equity
Securities, on a pro rata basis based upon the number of Common Equity
Securities owned.


 


In connection with any Demand Registration to which
the provisions of this subsection (b) apply, no securities other than Registrable
Securities shall be covered by such Demand Registration, and such registration
shall not reduce the number of available Demand Registrations under this
Section 2 in the event that the Registration Statement excludes more than 20%
of the aggregate number of Registrable Securities requested to be included by
the Demanding Stockholder. 
Notwithstanding anything herein to the contrary, if the managing
underwriter or managing underwriters (if any) determine that the inclusion of
the number of Management Shares proposed to be included in any such offering
would adversely affect the marketability of such offering, WIND may exclude
such number of Management Shares as necessary or desirable to negate such
adverse impact.


 


(c)        Postponement
of Demand Registration. WIND shall be
entitled to postpone (but not more than once in any twelve-month period), for a
reasonable period of time not in excess of 75 days, the filing of a
Registration Statement (but not the preparation of such Registration Statement)
if WIND delivers to the holders requesting registration a resolution of the
board of directors of WIND that, in the good faith judgment of the board of
directors of WIND, such registration and offering would reasonably be expected
to materially adversely affect any bona fide material financing of WIND or any
material transaction under consideration by WIND or would require disclosure of
information that has not been disclosed to the public and is not otherwise
required to be disclosed at that time, the premature disclosure of which would
materially adversely affect WIND. Such board resolution shall contain a
statement of the reasons for such postponement and an approximation of the
anticipated delay. The holders receiving such board resolution shall keep the
information contained in such board resolution confidential on the same terms
set forth in Section 5(p). If WIND shall so postpone the filing of a
Registration Statement, the holder who made the Demand Registration shall have
the right to withdraw the request for registration by giving written notice to
WIND within 20 days of the anticipated termination date of the postponement
period, as provided in the board resolution delivered to the holders, and in
the event of such withdrawal, such request shall not be counted for purposes of
the number of Demand Registrations to which such holder is entitled pursuant to
the terms of this Agreement.


 


(d)        Use,
and Suspension of Use, of “Shelf” Registration Statement.  If WIND has filed a “shelf”
Registration Statement and has included Registrable Securities therein, WIND
shall be entitled to suspend (but not more than an aggregate of 90 days in any
twelve month period), for such period of time as is reasonably necessary not in
excess of 75 days, the offer or sale of Registrable Securities pursuant to such
Registration Statement by any holder of Registrable


 


8

















 


Securities if (i) a “road show” is not then in
progress with respect to a proposed offering of Registrable Securities by such holder
pursuant to such Registration Statement and such holder has not executed an
underwriting agreement with respect to a pending sale of Registrable Securities
pursuant to such Registration Statement and (ii) WIND delivers to the holders
of Registrable Securities included in such Registration Statement a resolution
of the board of directors of WIND that, in the good faith judgment of the board
of directors of WIND, such offer or sale would reasonably be expected to
materially adversely affect any bona fide material financing of WIND or any
material transaction under consideration by WIND or would require disclosure of
information that has not been disclosed to the public and is not otherwise
required to be disclosed at that time, the premature disclosure of which would
materially adversely affect WIND. Such board resolution shall contain a
statement of the reasons for such postponement and an approximation of the
anticipated delay. The holders receiving such board resolution shall keep the
information contained in such certificate confidential on the same terms set
forth in Section 5(p).  In addition, a
holder of Registrable Securities may not use a “shelf” Registration Statement
to effect the sale of any such securities unless such holder has given WIND at
least two Business Days advance written notice of the date or dates of a
proposed sale of such securities by such holder pursuant to such Registration
Statement (which notice may be given as often as such holder desires), and upon
receipt of such a notice, WIND agrees to provide prompt written notice to such
holder if such “shelf” Registration Statement is not then usable (whether for
reasons described above or otherwise).


 


(e)        Underwritten
“Shelf” Take-Downs.  Subject to Section 2(d), at any time that any
“shelf” Registration Statement is effective, if any holder or group of holders
of Registrable Securities delivers a notice to WIND (a “Take-Down Notice”)
stating that it intends to effect an underwritten offering or distribution of
all or part of the Registrable Securities included by it on such “shelf”
Registration Statement (a “Shelf Offering”) and stating the number of
the Registrable Securities to be included in the Shelf Offering, then WIND
shall use reasonable best efforts to amend or supplement the “shelf”
Registration Statement as may be necessary in order to enable such Registrable
Securities to be distributed pursuant to the Shelf Offering (taking into
account the inclusion of Registrable Securities by any other holders thereof
pursuant to this Section 1(e)).  In
connection with any Shelf Offering: (i) WIND shall, promptly after receipt of a
Take-Down Notice, deliver such notice to all other holders of Registrable
Securities included in such “shelf” Registration Statement and permit each
holder to include its Registrable Securities included on the “shelf”
Registration Statement in the Shelf Offering if such holder notifies the
proposing holders and WIND within two (2) Business Days after delivery of the
Take-Down Notice to such holder, and in the event that the managing underwriter
or underwriters advise the holders of such securities in writing that in its or
their view the total number or dollar amount of Registrable Securities proposed
to be sold in such offering is such as to adversely


 


9














 


affect the success of such offering (including,
without limitation, securities proposed to be included by other holders of
securities entitled to include securities in such offering pursuant to
incidental or piggyback registration rights), such underwriter(s), if any, may
limit the number of shares which would otherwise be included in such Shelf
Offering in the same manner as is described in Section 2(b).


 


SECTION 3.  Piggyback Registration.


 


(a)        Right
to Piggyback.  If, at any time after the IPO, WIND proposes
to file a registration statement under the Securities Act with respect to an
offering of Common Equity Securities (other than a registration statement (i)
on Form S-4, Form S-8 or any successor forms thereto, (ii) filed solely in
connection with an exchange offer or any employee benefit or dividend
reinvestment plan or (iii) filed pursuant to Section 2 hereof), whether or not
for its own account, then, each such time, WIND shall give prompt written
notice of such proposed filing at least fifteen (15) days before the
anticipated filing date (the “Piggyback Notice”)
to all of the holders of Registrable Securities. The Piggyback Notice shall
offer such holders the opportunity to include in such registration statement
the number of Registrable Securities as each such holder may request (a “Piggyback Registration”). Subject to subsection (b) hereof,
WIND shall include in each such Piggyback Registration all Registrable
Securities with respect to which WIND has received written requests for
inclusion therein within ten (10) days after notice has been given to the
applicable holder. The holders of Registrable Securities exercising their
rights under this subsection (a) shall be permitted to withdraw all or part of
the Registrable Securities from a Piggyback Registration at any time prior to
the effective date of such Piggyback Registration. WIND shall not be required
to maintain the effectiveness of the Registration Statement for a Piggyback
Registration beyond the earlier to occur of (i) 180 days after the effective
date thereof and (ii) consummation of the distribution by the holders of the
Registrable Securities included in such Registration Statement; provided,
however, that any Stockholder owning Common Equity Securities that has been
included in such Registration Statement may request that such Common Equity
Securities be removed from such Registration Statement, in which event WIND
shall promptly either withdraw such Registration Statement or file a
post-effective amendment to such Registration Statement removing such Common
Equity Securities.


 


(b)        Priority
on Piggyback Registrations.  WIND shall use its reasonable best efforts to
cause the managing underwriter or underwriters of a proposed underwritten
offering to permit holders of Registrable Securities requested to be included
in the registration for such offering to include all such Registrable
Securities on the same terms and conditions as any other shares of capital
stock, if any, of WIND included therein. Notwithstanding the foregoing, if the
managing underwriter or underwriters of such underwritten offering have
informed WIND in writing that in its or their view the total number or dollar
amount of Common


 


10

















 


Equity Securities that the holders, WIND and any
other Persons having rights to participate in such registration, intend to
include in such offering is such as to adversely affect the success of such
offering, then the number of Common Equity Securities that in the opinion of
such managing underwriter can be sold without adversely affecting such offering
shall be included in the following order:


 


(i)            first, the Common Equity Securities
for the account of WIND or, if the holders of Registrable Securities have in
accordance with this Agreement approved the granting of registration rights to
any third party, any third party initiating such registration;


 


(ii)           second, the Investor Shares, on a pro
rata basis based upon the number of Registrable Securities owned;


 


(iii)          third, subject to the following paragraph,
the Management Shares, on a pro rata basis based upon the number of Registrable
Securities owned; and


 


(iv)          fourth, Common Equity Securities for
the account of any other Persons, on a pro rata basis based upon the number of
Registrable Securities owned.


 


Notwithstanding anything contained herein to the
contrary, WIND hereby agrees that (i) any Piggyback Registration that is a “shelf”
registration pursuant to Rule 415 under the Securities Act shall contain all
language (including, without limitation, on the Prospectus cover sheet, the
principal stockholders’ chart and the plan of distribution) as may be
reasonably requested by a holder of Registrable Securities to allow for a
Partner Distribution and (ii) WIND shall, at the reasonable request of any
holder of Registrable Securities seeking to effect a Partner Distribution, file
any Prospectus supplement or post-effective amendments and otherwise take any
action reasonably necessary to include such language, if such language was not
included in the initial Registration Statement, or revise such language if
deemed reasonably necessary by such holder to effect such Partner
Distribution.  Notwithstanding anything
herein to the contrary, if the managing underwriter or managing underwriters
(if any) determine that the inclusion of the number of Management Shares proposed to be included
in any such offering would adversely affect the marketability of such offering,
WIND may exclude such number of Management Shares as necessary or desirable to
negate such adverse impact.


 


Notwithstanding anything herein the contrary, in
respect of any offering under this Agreement (whether under Section 2, Section
3 or otherwise) no Stockholder or any of its affiliates (other than WIND),
officers, directors, members, stockholders or representatives shall be required
directly or indirectly to make any representations or warranties to, or
agreements with, WIND or the


 


11

















 


underwriters (including, without limitation,
agreements with respect to indemnification) other than representations,
warranties or agreements regarding such Stockholder, its ownership of and title
to the Registrable Securities and its intended method of distribution, and any
liability of any such Stockholder or its affiliates (other than WIND) to any
underwriter or other Person under such underwriting agreement shall be limited
to liability arising from breach of its representations and warranties and
shall be limited to an amount equal to the total price at which the securities
sold by such Stockholder were offered to the public (net of discounts and
commissions paid by such Stockholder in connection with such offering).


 


SECTION 4.  Restrictions On Sale During Registration.


 


(a)        Each
holder of Registrable Securities agrees, in connection with any underwritten
offering made pursuant to a Registration Statement filed pursuant to Section 2
or Section 3 hereof (whether or not such holder elected to include Registrable
Securities in such Registration Statement), if requested (pursuant to a written
notice) by the managing underwriter or underwriters in an underwritten
offering, not to effect any sale or distribution of any Common Equity
Securities (except as part of such underwritten offering), including a sale
pursuant to Rule 144, or to give any Demand Notice during the period commencing
on the date of the request (which shall be no earlier than 14 days prior to the
expected “pricing” of such offering) and continuing for not more than 90 days
(with respect to any underwritten public offering other than the IPO made prior
to the second anniversary of the IPO and thereafter 60 days rather than 90)
after the date of the Prospectus (or Prospectus supplement if the offering is
made pursuant to a “shelf” registration) pursuant to which such public offering
shall be made or such shorter period as is required by the managing
underwriter, provided, however, that WIND and all executive officers and
directors of WIND must be subject to the same restrictions, and provided
further, that such restrictions shall expire as to any such request if the
relevant offering is not consummated within 45 days of the date of such
request.  Each holder of Registrable
Securities agrees to enter into a “lock-up” agreement containing provisions
consistent in all material respects with this Section 4(a) for the benefit of
the managing underwriters of any such underwritten offering.  WIND agrees to request each of its executive
officers and independent directors to enter into a “lock-up” agreement
containing provisions consistent in all material respects with this Section
4(a) for the benefit of the managing underwriters of any such underwritten
offering, but WIND shall have no further obligation if any executive officer or
independent director does not so agree.


 


(b)        WIND,
if requested (pursuant to a written notice) by the managing underwriter or
underwriters of any underwritten offering made pursuant to a Registration
Statement filed pursuant to Section 2 or Section 3 hereof, shall not effect any
public sale or distribution of its Common Equity Securities during the


 


12

















 


14 days prior to and the 90-day period (or, after
the second anniversary of the IPO, the 60-day period) beginning on the “pricing”
of such offering, except as part of such underwritten registration, or unless
such managing underwriter or underwriters otherwise agree in writing, provided,
that such restrictions shall expire as to any such request if the relevant
offering is not consummated within 45 days of the date of such request, and
provided further that this Section 4(b) shall not apply to any sale pursuant to
a registration statement (i) on Form S-4, Form S-8 or any successor forms
thereto or (ii) filed solely in connection with an exchange offer or any
employee benefit or dividend reinvestment plan, or apply to any sales or grants
of Common Equity Securities pursuant to employee benefit plans or contracts of
WIND or its subsidiaries.


 


SECTION 5.  Registration Procedures.  If and whenever WIND is required
to effect the registration of any Registrable Securities under the Securities
Act as provided in Section 2 or Section 3 hereof, WIND shall effect such
registration to permit the sale of such Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant
thereto WIND shall cooperate in the sale of the securities and shall, as
expeditiously as reasonably possible:


 


(a)        Prepare
and file with the Commission a Registration Statement or Registration Statements
on any form which shall be available for the sale of the Registrable Securities
by the holders thereof or WIND in accordance with the intended method or
methods of distribution thereof (including, without limitation, a Partner
Distribution), and use its reasonable best efforts to cause such Registration
Statement to become effective and to remain effective as provided herein;
provided, however, that no later than ten (10) days before filing a
Registration Statement or Prospectus or any amendments or supplements thereto
(including, without limitation, documents that would be incorporated or deemed
to be incorporated therein by reference), WIND shall furnish or otherwise make
available to the holders of the Registrable Securities covered by such Registration
Statement, their counsel and the managing underwriters, if any, copies of all
such documents proposed to be filed. WIND shall not file any such Registration
Statement or Prospectus or any amendments or supplements thereto (including,
without limitation, such documents that, upon filing, would be incorporated or
deemed to be incorporated by reference therein) with respect to a Demand
Registration to which the holders of a majority of the Registrable Securities
covered by such Registration Statement, their counsel, or the managing
underwriters, if any, shall reasonably object, unless, in the opinion of WIND
and its counsel, such filing is necessary to comply with applicable law.


 


(b)        Prepare
and file with the Commission such amendments and post-effective amendments to
each Registration Statement as may be necessary to keep such Registration
Statement continuously effective during the period provided herein and comply
in all material respects with the provisions of the Securities


 


13

















 


Act with respect to the disposition of all
securities covered by such Registration Statement; and cause the related
Prospectus to be supplemented by any Prospectus supplement as may be necessary
to comply with the provisions of the Securities Act with respect to the
disposition of the securities covered by such Registration Statement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then
in force) under the Securities Act; provided, however, that any holder of
Registrable Securities that has been included on a “shelf” registration
statement may request that such holder’s Registrable Securities be removed from
such registration statement, in which event WIND shall promptly either withdraw
such registration statement or file a post-effective amendment to such
registration statement removing such Registrable Securities.


 


(c)        Notify
each selling holder of Registrable Securities, its counsel and the managing
underwriters, if any, promptly, and (if requested by any such Person) confirm
such notice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any notice from the Commission that there will be a review of a
Registration Statement and, to the extent requested by a holder of Registrable
Securities, promptly provide such holders, their counsel and the managing
underwriters, if any, with a copy of any SEC comments received by WIND in
connection therewith, (iii) of any request by the Commission or any other
Federal or state governmental authority for amendments or supplements to a
Registration Statement or related Prospectus or for additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, (v) if at any time the representations and warranties of WIND
contained in any agreement (including, without limitation, any underwriting
agreement) contemplated by Section 5(o) below cease to be true and correct,
(vi) of the receipt by WIND of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of
any proceeding for such purpose, and (vii) of the happening of any event that
makes any statement made in such Registration Statement or related Prospectus
or any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes in
such Registration Statement, Prospectus or documents so that, in the case of
the Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.


 


14

















 


(d)        Use
its reasonable best efforts to obtain the withdrawal of any order suspending
the effectiveness of a Registration Statement, or the lifting of any suspension
of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction.


 


(e)        If
requested by the managing underwriters, if any, or any holder of Registrable
Securities being sold in connection with an underwritten offering, promptly
include in a Prospectus supplement or post-effective amendment such information
as the managing underwriters, if any, and such holders may reasonably request
in order to permit the intended method of distribution of such securities and
make all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after WIND has received such request.


 


(f)         Furnish
or make available to each selling holder of Registrable Securities, its counsel
and each managing underwriter, if any, without charge, at least five conformed
copies of the Registration Statement, the Prospectus and Prospectus
supplements, if applicable, and each post-effective amendment thereto,
including financial statements (but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all
exhibits, unless requested by such holder, counsel or underwriter).


 


(g)        Deliver
to each selling holder of Registrable Securities, its counsel and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of Prospectus) and each amendment or
supplement thereto as such Persons may reasonably request in connection with
the distribution of the Registrable Securities; and WIND, subject to the last
paragraph of this Section 5, hereby consents to the use of such Prospectus and
each amendment or supplement thereto by each of the selling holders of
Registrable Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such Prospectus and
any such amendment or supplement thereto.


 


(h)        Prior
to any public offering of Registrable Securities, use its reasonable best
efforts to register or qualify or cooperate with the selling holders of
Registrable Securities, the underwriters, if any, and their respective counsel
in connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and
sale under the securities or “Blue Sky” laws of such jurisdictions within the
United States as any seller or underwriter reasonably requests and to keep each
such registration or qualification (or exemption therefrom) effective during
the period such Registration Statement is required to be kept effective and to
take any other action that may be necessary or advisable to enable such holders
of Registrable Securities to consummate the disposition of such Registrable
Securities in such jurisdiction; provided, however, that WIND will not be
required to (i) qualify


 


15

















 


generally to do business in any jurisdiction where
it is not then so qualified or (ii) take any action that would subject it to
general service of process in any such jurisdiction where it is not then so
subject.


 


(i)         Unless
the Registrable Securities to be sold are uncertificated, cooperate with the
selling holders of Registrable Securities and the managing underwriters, if
any, to facilitate the timely preparation and delivery of certificates (not
bearing any legends) representing Registrable Securities to be sold after
receiving written representations from each holder of such Registrable
Securities that the Registrable Securities represented by the certificates so
delivered by such holder will be transferred in accordance with the
Registration Statement, and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters, if
any, or holders may request at least two (2) Business Days prior to any sale of
Registrable Securities in a firm commitment public offering, but in any other
such sale, within ten (10) Business Days prior to having to issue the
securities.


 


(j)         Use
its reasonable best efforts to cause the Registrable Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as may be
required solely as a consequence of the nature of such selling holder’s
business, in which case WIND will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such approvals, as
may be necessary to enable the seller or sellers thereof or the underwriters,
if any, to consummate the disposition of such Registrable Securities.


 


(k)        Upon
the occurrence of any event contemplated by subsection (c)(vii) above, prepare
a supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, such Prospectus will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.


 


(l)         Prior
to the effective date of the Registration Statement relating to the Registrable
Securities, provide a CUSIP number for the Registrable Securities.


 


(m)       Provide
and cause to be maintained a transfer agent and registrar for all Registrable
Securities covered by such Registration Statement from and after a date not
later than the effective date of such Registration Statement.


 


(n)        Use
its reasonable best efforts to cause all shares of Registrable Securities
covered by such Registration Statement to be authorized to be listed on


 


16

















 


a national securities exchange if shares of the
particular class of Registrable Securities are at that time listed on such
exchange.


 


(o)        Enter
into such agreements (including, without limitation, an underwriting agreement
in form, scope and substance as is customary in underwritten offerings) and
take all such other actions reasonably requested by the holders of a majority
of the Registrable Securities being sold in connection therewith (including
those reasonably requested by the managing underwriters, if any) to expedite or
facilitate the disposition of such Registrable Securities, and in such
connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration, (i) make such
representations and warranties to the holders of such Registrable Securities
and the underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings, and, if true,
confirm the same if and when requested, (ii) furnish to the selling holders of
such Registrable Securities opinions of counsel and a negative assurance letter
to WIND and updates thereof (which counsel, opinions and letter (in form, scope
and substance, in the case of such opinions and such letter) shall be
reasonably satisfactory to the selling holders of such Registrable Securities,
the managing underwriters, if any, and counsels to the selling holders of the
Registrable Securities), addressed to each selling holder of Registrable
Securities and each of the underwriters, if any, covering the matters
customarily covered in opinions and negative assurance letters requested in
underwritten offerings and such other matters as may be reasonably requested by
such holders, counsel and underwriters, (iii) obtain “cold comfort” letters and
updates thereof from the independent certified public accountants of WIND (and,
if necessary, any other independent certified public accountants of any
subsidiary of WIND or of any business acquired by WIND for which financial
statements and financial data are, or are required to be, included in the
Registration Statement) who have certified the financial statements included in
such Registration Statement, addressed to each selling holder of Registrable
Securities (unless such accountants shall be prohibited from so addressing such
letters by applicable standards of the accounting profession) and each of the
underwriters, if any, such letters to be in customary form and covering matters
of the type customarily covered in “cold comfort” letters in connection with
underwritten offerings, which form and substance shall be acceptable to the
selling holders of the Registrable Securities, (iv) if an underwriting
agreement is entered into, the same shall contain indemnification provisions
and procedures substantially to the effect set forth in Section 7 hereof with
respect to all parties to be indemnified pursuant to said Section and (v)
deliver such documents and certificates as may be reasonably requested by any
holder of Registrable Securities being sold, such holder’s counsel and the
managing underwriters, if any, to evidence the continued validity of the
representations and warranties made pursuant to subsection (o)(i) above and to
evidence compliance with the conditions contained in the underwriting agreement
or other agreement entered


 


17

















 


into by WIND. The above shall be done at each
closing under such underwriting or similar agreement, or as and to the extent
required thereunder.


 


(p)        Make
available for inspection by the selling holders of Registrable Securities, any
underwriter participating in any such disposition of Registrable Securities, if
any, and any attorneys or accountants retained by such selling holders or
underwriter, at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
properties of WIND and its subsidiaries, and cause the officers and employees
of WIND and its subsidiaries to supply all information in each case reasonably
requested by any such holder, underwriter, attorney or accountant in connection
with such Registration Statement; provided, however, that any information that is
not publicly available at the time of delivery of such information shall be
kept confidential by such Persons (other than disclosure by such Persons to
such Persons’ respective affiliates) unless (i) disclosure of such information
is required by court or administrative order or other legal process, (ii)
disclosure of such information is required by law, or (iii) such information
becomes generally available to the public other than as a result of a
disclosure or failure to safeguard by such Person. In the case of a proposed
disclosure pursuant to (i) or (ii) above, such Person shall, to the extent
practical, be required to give WIND written notice of the proposed disclosure
prior to such disclosure and, if requested by WIND, at WIND’s expense, assist
WIND in seeking to prevent or limit the proposed disclosure.


 


(q)        Comply
with all applicable rules and regulations of the Commission and make available
to its security holders earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder, or any similar rule
promulgated under the Securities Act, no later than forty-five (45) days after
the end of any twelve (12) month period (or ninety (90) days after the end of
any twelve (12) month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten offering and
(ii) if not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of WIND after the effective date of a
Registration Statement, which statements shall cover one of said twelve (12)
month periods.


 


(r)         Cause
its officers to support the marketing of the Registrable Securities covered by
the Registration Statement (including, without limitation, participation in “road
shows”), to the extent reasonably requested.


 


Notwithstanding anything contained herein to the
contrary, WIND hereby agrees that (i) any Demand Registration that is a “shelf”
registration pursuant to Rule 415 under the Securities Act shall contain all
language (including, without limitation, on the prospectus cover sheet, the
principal stockholders’ chart and the plan of distribution) as may be
reasonably requested by a holder of Registrable


 


18

















 


Securities. WIND may require each seller of
Registrable Securities as to which any registration is being effected to
furnish to WIND in writing such information required in connection with such registration
regarding such seller and the distribution of such Registrable Securities as
WIND may, from time to time, reasonably request in writing.


 


Each holder of Registrable Securities agrees if
such holder has Registrable Securities covered by such Registration Statement
that, upon receipt of any notice from WIND of the happening of any event of the
kind described in subsection (c) (iii), (iv), (v), (vi) or (vii) hereof, such
holder will forthwith discontinue disposition of such Registrable Securities covered
by such Registration Statement or Prospectus until such holder is advised in
writing by WIND that the disposition may be resumed and, if applicable, has
received copies of the supplemented or amended Prospectus contemplated by
subsection (k) hereof, together with any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
Prospectus; provided, however, that WIND shall extend the time periods under
Section 2 with respect to the length of time that the effectiveness of a
Registration Statement must be maintained by the amount of time the holder is
required to discontinue disposition of such securities.


 


SECTION 6.  Registration Expenses.  All fees and expenses incident to
the performance of or compliance with this Agreement by WIND (including,
without limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses (A) with respect to filings required to be made
with the Financial Industry Regulatory Authority and the Commission, (B) of
compliance with securities or Blue Sky laws, including, without limitation, any
fees and disbursements of counsel for the underwriters in connection with Blue
Sky qualifications of the Registrable Securities pursuant to Section 5(h) and (C)
of listing and registration with a national securities exchange or national
market interdealer quotation system), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable
Securities in a form eligible for deposit with The Depository Trust Company and
of printing Prospectuses if the printing of Prospectuses is requested by the
managing underwriters, if any, or by the holders of a majority of the
Registrable Securities included in any Registration Statement), (iii)
messenger, telephone and delivery expenses of WIND, (iv) fees and disbursements
of counsel for WIND, (v) expenses of WIND incurred in connection with any road
show, (vi) fees and disbursements of all independent certified public
accountants referred to in Section 5(o)(iii) hereof (including, without
limitation, the expenses of any “cold comfort” letters required by this
Agreement) and any other persons, including special experts retained by WIND,
(vii) rating agency fees and (viii) reasonable fees and disbursements of one
counsel reasonably acceptable to WIND for the holders of Registrable Securities
whose shares are included in a Registration Statement, which counsel shall be
selected by the holders of a majority of the Registrable Securities included in
such Registration Statement) shall be borne by WIND whether or not any
Registration


 


19














 


Statement is filed or becomes effective. In
addition, WIND shall pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange on which similar securities issued by WIND are then
listed and rating agency fees and the fees and expenses of any Person,
including special experts, retained by WIND.


 


WIND shall not be required to pay (i) fees and
disbursements of any counsel retained by any holder of Registrable Securities
or by any underwriter (except as set forth in clauses 6(i)(B) and (viii)), (ii)
any underwriter’s fees (including discounts, commissions or fees of
underwriters, selling brokers, dealer managers or similar securities industry
professionals) relating to the distribution of the Registrable Securities
(other than with respect to Registrable Securities sold by WIND) or (iii) any
other expenses of the holders of Registrable Securities not specifically
required to be paid by WIND pursuant to the first paragraph of this Section 6.


 


SECTION 7.  Indemnification.


 


(a)        Indemnification
by WIND. 
WIND shall, without limitation as to time, indemnify and hold harmless,
to the fullest extent permitted by law, each holder of Registrable Securities
whose Registrable Securities are covered by a Registration Statement or
Prospectus, the affiliates, officers, directors, partners, members, managers,
stockholders, accountants, attorneys, agents and employees of each of them,
each Person who controls each such holder (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) and the officers, directors,
partners, members, managers, stockholders, accountants, attorneys, agents and
employees of each such controlling person, each underwriter, if any, and each
Person who controls (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) such underwriter, from and against any and all
losses, claims, damages, liabilities, costs (including, without limitation,
costs of preparation and reasonable attorneys’ fees and any legal or other fees
or expenses incurred by such party in connection with any investigation or
Proceeding), expenses, judgments, fines, penalties, charges and amounts paid in
settlement (collectively, “Losses”), as
incurred, arising out of or based upon any untrue statement (or alleged untrue
statement) of a material fact contained in any Prospectus, offering circular or
other document (including, without limitation, any related Registration
Statement, notification or the like) incident to any such registration,
qualification, or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by WIND of the
Securities Act or any rule or regulation thereunder applicable to WIND and
relating to action or inaction required of WIND in connection with any such
registration, qualification, or compliance, and will reimburse each such
holder,


 


20

















 


each of its affiliates, officers, directors,
partners, members, managers, stockholders, accountants, attorneys, agents and
employees and each person controlling such holder, each such underwriter, and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating and defending or
settling any such claim, loss, damage, liability, or action, provided, however
that WIND will not be liable in any such case to the extent that any such
claim, loss, damage, liability, or expense arises out of or is based on any
untrue statement or omission by such holder or underwriter, but only to the
extent, that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is made in such Registration Statement, Prospectus,
offering circular, or other document in reliance upon and in conformity with
written information furnished to WIND by such holder. It is agreed that the
indemnity agreement contained in this Section 7(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of WIND (which consent shall not be
unreasonably withheld).


 


(b)        Indemnification
by Holder of Registrable Securities.  In connection with any Registration Statement
in which a holder of Registrable Securities is participating, such holder of
Registrable Securities shall furnish to WIND in writing such information as
WIND reasonably requests for use in connection with any Registration Statement
or Prospectus and agrees to indemnify, to the fullest extent permitted by law,
severally and not jointly, WIND, its directors, officers, accountants,
attorneys, agents and employees, each Person who controls WIND (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act), and the directors, officers, partners, members, managers, stockholders,
accountants, attorneys, agents or employees of such controlling persons, and
each underwriter, if any, and each person who controls such underwriter (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act), from and against all Losses arising out of or based on any untrue
statement of a material fact contained in any such Registration Statement,
Prospectus, offering circular or other document, or any omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse WIND and such directors,
officers, partners, members, managers, stockholders, accountants, attorneys,
employees, agents, persons, underwriters, or control persons for any legal or
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to
the extent, but in each case only to the extent, that such untrue statement or
omission is made in such Registration Statement, Prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to WIND by such holder specifically for use in connection with the
preparation of such Registration Statement, Prospectus, offering circular or
other document; provided, however, that the obligations of such holder
hereunder shall not apply to amounts


 


21

















 


paid in settlement of any such claims, losses,
damages, or liabilities (or actions in respect thereof) if such settlement is
effected without the consent of such holder (which consent shall not be
unreasonably withheld); and provided further, however, that the liability of
each selling holder of Registrable Securities hereunder shall be limited to the
net proceeds received by such selling holder from the sale of Registrable
Securities covered by such Registration Statement. In addition, insofar as the
foregoing indemnity relates to any such untrue statement or omission made in
the preliminary Prospectus but eliminated or remedied in the amended Prospectus
on file with the Commission at the time the Registration Statement becomes
effective or in the final Prospectus filed pursuant to applicable rules of the
Commission or in any supplement or addendum thereto and such new Prospectus is
delivered to the underwriter, the indemnity agreement herein shall not inure to
the benefit of such underwriter, any controlling person of such underwriter and
their respective Representatives, if a copy of the final Prospectus filed
pursuant to such rules, together with all supplements and addenda thereto was
not furnished to the Person asserting the loss, liability; claim or damage at
or prior to the time such furnishing is required by the Securities Act.


 


(c)        Conduct
of Indemnification Proceedings.  If any Person shall be entitled to indemnity
hereunder (an “indemnified party”), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the “indemnifying party”)
of any claim or of the commencement of any Proceeding with respect to which
such indemnified party seeks indemnification or contribution pursuant hereto;
provided, however, that the delay or failure to so notify the indemnifying
party shall not relieve the indemnifying party from any obligation or liability
except to the extent that the indemnifying party has been prejudiced by such
delay or failure. The indemnifying party shall have the right, exercisable by
giving written notice to an indemnified party promptly after the receipt of
written notice from such indemnified party of such claim or Proceeding, to,
unless in the indemnified party’s reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, assume, at the indemnifying party’s expense, the defense of any such
claim or Proceeding, with counsel reasonably satisfactory to such indemnified
party; provided, however, that an indemnified party shall have the right to
employ separate counsel in any such claim or Proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless: (i) the indemnifying party agrees to
pay such fees and expenses or (ii) the indemnifying party fails promptly to
assume, or in the event of a conflict of interest cannot assume, the defense of
such claim or Proceeding or fails to employ counsel reasonably satisfactory to
such indemnified party; in which case the indemnified party shall have the
right to employ counsel and to assume the defense of such claim or proceeding;
provided further, however, that the indemnifying party shall not, in connection
with any one such claim or Proceeding or separate but substantially similar or
related claims or Proceedings


 


22

















 


in the same jurisdiction, arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one firm of attorneys (together with appropriate local counsel) at
any time for all of the indemnified parties, or for fees and expenses that are
not reasonable. Whether or not such defense is assumed by the indemnifying
party, such indemnified party will not be subject to any liability for any
settlement made without its consent (but such consent will not be unreasonably
withheld, delayed or conditioned). The indemnifying party shall not consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance reasonably satisfactory
to the indemnified party, from all liability in respect of such claim or
litigation for which such indemnified party would be entitled to
indemnification hereunder.


 


(d)        Contribution. If the indemnification provided for in this Section 7 is unavailable
to an indemnified party in respect of any Losses (other than in accordance with
its terms), then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party, on the one
hand, and such indemnified party, on the other hand, in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such
indemnifying party, on the one hand, and indemnified party, on the other hand,
shall be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact, has been taken by, or
relates to information supplied by, such indemnifying party or indemnified
party, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent any such action, statement or omission.


 


The parties hereto agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were determined
by pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this subsection (d), an
indemnifying party that is a selling holder of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the net
proceeds from the sale of the Registrable Securities sold by such indemnifying
party exceeds the amount of any damages that such indemnifying party has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.


 


23

















 


(e)        Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in any underwriting agreement entered into in connection
with any underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall control.


 


SECTION 8.  Rule 144. 
After the IPO, WIND shall file the reports required to be
filed by it under the Securities Act and the Exchange Act in a timely manner,
and will take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Securities
Act within the limitations of the exemption provided by Rule 144. Upon the
request of any holder of Registrable Securities, WIND shall deliver to such
holder a written statement as to whether it has complied with such
requirements.


 


SECTION 9.  Underwritten Registrations.  If any Demand Registration is an
underwritten offering or there is any Shelf Offering, the holders of a majority
of the Registrable Securities to be sold pursuant to such underwritten Demand
Registration or to be included in such Shelf Offering shall have the right to
select the investment banker or investment bankers and managers to administer
the offering, provided such Persons are reasonably acceptable to WIND.  WIND shall have the right to select the
investment banker or investment bankers and managers to administer any
Piggyback Registration.


 


SECTION 10.  Limitation On Subsequent Registration
Rights.  From and after the
date of this Agreement WIND shall not, without the prior written consent of the
holders of two-thirds of the Registrable Securities, enter into any agreement
with any holder or prospective holder of any securities of WIND, giving such
holder or prospective holder any registration rights the terms of which are
equivalent to or more favorable than the registration rights granted to holders
of Registrable Securities hereunder, or which would reduce the amount of
Registrable Securities the holders can include in any registration filed
pursuant to Section 2 hereof, unless such rights are subordinate to those of
the holders of Registrable Securities.


 


SECTION 11.  Miscellaneous.


 


(a)        Amendments
and Waivers.  The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given without the written consent of holders of two-thirds of the Registrable
Securities; provided, however, that in no event shall the obligations of any
holder of Registrable Securities be materially increased or the rights of any
Stockholder be adversely affected (without similarly adversely affecting the
rights


 


24

















 


of all Stockholders), except upon the written
consent of such holder. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other holders of Registrable Securities may
be given by holders of at least two-thirds of the Registrable Securities being
sold by such holders pursuant to such Registration Statement.


 


(b)        Notices.  All notices, requests, consents
and other communications hereunder to any party shall be in writing and shall
be delivered in person or sent by facsimile (provided a copy is thereafter
promptly delivered as provided in this subsection (b)) or nationally recognized
overnight courier, addressed to such party at the address or facsimile number
set forth in WIND’s records in the case of a Stockholder, or below with respect
to WIND, or such other address or facsimile number as may hereafter be
designated in writing by such party to the other parties:


 


If to WIND, to:


 


First Wind Holdings Inc.

179 Lincoln Street, Suite 500

Boston, MA  02111

Telephone: 617-960-2888

Facsimile: 617-960-2889

Attention: General Counsel


 


with a copy (which shall not constitute notice to
WIND) to:


 


Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, NY  10017

Telephone: 212-450-4565

Facsimile: 212-701-5565

Attention: Joseph A. Hall


 


Each such notice or other communication shall be
deemed received on the date sent to the recipient thereof in accordance with
this subsection (b), if sent prior to 5:00 p.m. in the place of receipt and
such day is a Business Day; otherwise, such Notice shall be deemed not to have
been received until the next succeeding Business Day.


 


(c)        Successors
and Assigns; Stockholder Status.  This Agreement shall inure to the benefit of
the recipients of a Partner Distribution (provided that in connection with a
Partner Distribution a single Person shall have been appointed


 


25














 


and duly authorized to serve as agent on behalf of
all such transferees with respect to all matters that are the subject of this
Agreement, including the giving and receiving of notice on behalf of such
transferees) and shall inure to the benefit of and be binding upon the
successors and permitted assigns of each of the parties, including subsequent
holders (each, a “Subsequent Holder”)
of Registrable Securities that, alone or taken together with their Affiliates,
acquired, directly or indirectly, from a Stockholder or Stockholders, not less
than 20% of the Registrable Securities held by such Stockholder or Stockholders
(together with their Affiliates) as of the date hereof (each, a “Permitted Transferee”); provided, however, that such
Permitted Transferee shall not be entitled to such rights unless such Permitted
Transferee shall have executed and delivered to WIND an Addendum Agreement
substantially in the form of Exhibit A hereto promptly following the
acquisition of such Registrable Securities, in which event such Permitted
Transferee shall be deemed a Stockholder for purposes of this Agreement and
Annex A shall be updated by WIND accordingly, and provided further that no such
Subsequent Holder shall have any rights under this Agreement at such time as such
Subsequent Holder’s Registrable Securities are freely tradable without volume
limitations under Rule 144.  Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any Person other than the parties hereto and their respective Permitted
Transferees any legal or equitable right, remedy or claim under, in or in
respect of this Agreement or any provision herein contained.  It is understood and agreed that no
assignment or transfer by any of D. E. Shaw, Madison Dearborn, UPC Holding or
Alberta of any of the Demand Registrations to which it is entitled pursuant to
the third paragraph of Section 2(a) will result in an increase in the
number of Demand Registrations (that do not constitute “shelf” registrations)
to which WIND is otherwise subject.


 


(d)   Counterparts.  This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.


 


(e)   Headings.  The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.


 


(f)    Governing
Law. 
This Agreement and the rights of the parties hereunder will be governed
by, construed and enforced in accordance with the laws of the State of New York
without regard to conflicts of law principles thereof.


 


(g)   Severability.  If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their 


 


26

















 


commercially reasonable efforts to find and employ
an alternative means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants ‘ and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.


 


(h)   Entire
Agreement.  This Agreement is intended by the parties as
a final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by WIND with respect to
Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.


 


(i)    Securities
Held by WIND or its Subsidiaries.
Whenever the consent or approval of holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
WIND or its subsidiaries shall not be counted in determining whether such
consent or approval was given by the holders of such required percentage.


 


(j)    Termination. This Agreement shall terminate on the date when no Registrable
Securities remain outstanding; provided that Section 6 and Section 7
shall survive any termination.


 


(k)   Specific
Performance. The parties hereto
recognize and agree that money damages may be insufficient to compensate the
holders of any Registrable Securities for breaches by WIND of the terms hereof
and, consequently, that the equitable remedy of specific performance of the
terms hereof will be available in the event of any such breach.


 


(l)    Consent
to Jurisdiction. The parties hereto
agree that any suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with, this Agreement or
the transactions contemplated hereby shall be brought and maintained
exclusively in the United States District Court for the Southern District of
New York or the Supreme Court of the State of New York located in the County of
New York.  Each of the parties
irrevocably consents to submit to the personal jurisdiction of such courts (and
of the appropriate appellate courts therefrom) in any such suit, action or
proceeding.  Process in any such suit,
action or proceeding in such courts may be served, and shall be effective, on
any party anywhere in the world, whether within or without the jurisdiction of
any such court, by any of the methods specified for the giving of notices
pursuant to subsection (b) of this Section 11.  Each of the parties irrevocably waives, to
the fullest extent permitted by law, any objection or 


 


27

















 


defense that it may now or hereafter have based on
venue, inconvenience of forum, the lack of personal jurisdiction and the
adequacy of service of process (as long as the party was provided notice in
accordance with the methods specified in subsection (b) of this Section 11)
in any suit, action or proceeding brought in such courts.


 


(m)  EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT.


 


[Signature pages follow]


 


28

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective authorized
representatives as of the day and year first above written.


 


 


	
   

  	
  FIRST WIND HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  D. E. SHAW MWP ACQUISITION HOLDINGS, L.L.C.

  
	
   

  	
  By:

  	
  D. E. SHAW & CO., L.L.C., AS MANAGER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  D. E. SHAW MWPH ACQUISITION HOLDINGS, L.L.C.

  
	
   

  	
  By:

  	
  D. E. SHAW & CO., L.L.C., AS MANAGER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MADISON DEARBORN CAPITAL PARTNERS IV, L.P.

  
	
   

  	
  By:

  	
  MADISON DEARBORN PARTNERS IV, L.P.

  
	
   

  	
  Its:

  	
  GENERAL PARTNER

  
	
   

  	
  By:

  	
  MADISON DEARBORN CAPITAL PARTNERS, LLC

  
	
   

  	
  Its:

  	
  GENERAL PARTNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


29

















 


	
   

  	
   

  	
  [NAME]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


30

















 


Annex
A


 


STOCKHOLDERS


 

















 


Exhibit A


 


ADDENDUM AGREEMENT


 


This ADDENDUM AGREEMENT is made this
     day of
                        ,
20    , by and between
                                    
(the “New Stockholder”) and First Wind
Holdings Inc. (“WIND”), pursuant to a Registration
Rights Agreement (as amended from time to time, the “Agreement”)
dated as of           , 2010,
by and among WIND and the Stockholders.


 


Capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed to them in the Agreement.


 


W I T N E S S E T
H:


 


WHEREAS, WIND has agreed to provide registration
rights with respect to the Registrable Securities as set forth in the
Agreement;


 


WHEREAS, the New Stockholder has acquired
Registrable Securities directly or indirectly from a Stockholder; and


 


WHEREAS, WIND and the Stockholders have required in
the Agreement that all persons desiring registration rights must enter into an
Addendum Agreement binding the New Stockholder to the Agreement to the same
extent as if it were an original party thereto;


 


NOW, THEREFORE, in consideration of the mutual
promises of the parties, the New Stockholder acknowledges that it has received
and read the Agreement and that the New Stockholder shall be bound by, and
shall have the benefit of, all of the terms and conditions set out in the
Agreement to the same extent as if it were a Stockholder originally party to
the Agreement.


 


	
   

  	
  [NAME]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Facsimile No.

  



 


 


32

















 


AGREED TO pursuant to Section 11(c) of
the Agreement.


 


	
   

  	
  FIRST WIND HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


33