Exhibit
10.33


 


Exhibit G


to Merger Agreement




 





 


LIMITED
LIABILITY COMPANY AGREEMENT


 


of


 


FIRST WIND HOLDINGS, LLC


 


upon and after the Effective Time
referred to herein


 


Dated as of
          , 2010


 




 





 


THE MEMBERSHIP INTERESTS REPRESENTED BY THIS
AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS.  SUCH MEMBERSHIP INTERESTS MAY NOT BE
SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT
REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE
WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
  PAGE

  
	
   

  	
   

  
	
  ARTICLE 1

  
	
  DEFINED TERMS

  
	
   

  	
   

  
	
  Section 1.01.  Definitions

  	
  3

  
	
  Section 1.02.  Other Definitional and
  Interpretative Provisions

  	
  11

  
	
   

  	
   

  
	
  ARTICLE 2

  
	
  THE EFFECTIVE TIME

  
	
   

  	
   

  
	
  Section 2.01.  Prior to, Upon and After the
  Effective Time

  	
  12

  
	
  Section 2.02.  Formation of Merger LLC

  	
  12

  
	
   

  	
   

  
	
  ARTICLE 3

  
	
  ORGANIZATION

  
	
   

  	
   

  
	
  Section 3.01.  Formation; Amendment and
  Restatement

  	
  16

  
	
  Section 3.02.  Company Name

  	
  16

  
	
  Section 3.03.  Purposes of the Company

  	
  16

  
	
  Section 3.04.  Principal Place of Business

  	
  16

  
	
  Section 3.05.  Registered Office and Agent

  	
  16

  
	
  Section 3.06.  Qualification in Other
  Jurisdictions

  	
  16

  
	
  Section 3.07.  Term

  	
  17

  
	
  Section 3.08.  No State-law Partnership

  	
  17

  
	
   

  	
   

  
	
  ARTICLE 4

  
	
  CAPITALIZATION

  
	
   

  	
   

  
	
  Section 4.01.  Membership Interests;
  Capitalization

  	
  17

  
	
  Section 4.02.  Authorization and Issuance
  of Additional Membership Interests

  	
  18

  
	
  Section 4.03.  Repurchase or Redemption of
  Class A Shares

  	
  20

  
	
  Section 4.04.  Changes in Common Stock

  	
  20

  
	
   

  	
   

  
	
  ARTICLE 5

  
	
  MEMBERS

  
	
   

  	
   

  
	
  Section 5.01.  Names and Addresses

  	
  20

  
	
  Section 5.02.  No Liability for Status as
  Member

  	
  20

  
	
  Section 5.03.  No Restrictions Of Business
  Pursuits Of Member

  	
  21

  
	
  Section 5.04.  Business Opportunities

  	
  21

  



 


i

















 


	
  Section 5.05.  Transactions Between Members
  and the Company

  	
  21

  
	
  Section 5.06.  Meeting of Members

  	
  21

  
	
  Section 5.07.  Action by Members Without
  Meeting

  	
  22

  
	
  Section 5.08.  Limited Rights of Members

  	
  22

  
	
   

  	
   

  
	
  ARTICLE 6

  
	
  DISTRIBUTIONS

  
	
   

  	
   

  
	
  Section 6.01.  Distributions

  	
  22

  
	
  Section 6.02.  Distributions for Payment of
  Income Tax

  	
  23

  
	
  Section 6.03.  Limitations
  on Distributions

  	
  23

  
	
  Section 6.04.  Withholding

  	
  24

  
	
   

  	
   

  
	
  ARTICLE 7

  
	
  ALLOCATIONS AND TAX MATTERS

  
	
   

  	
   

  
	
  Section 7.01.  Capital Accounts and
  Adjusted Capital Accounts

  	
  24

  
	
  Section 7.02.  Additional Capital
  Contributions

  	
  25

  
	
  Section 7.03.  Allocations of Net Profits
  and Net Losses

  	
  25

  
	
  Section 7.04.  Special Allocations

  	
  25

  
	
  Section 7.05.  Allocation for Income Tax
  Purposes

  	
  27

  
	
  Section 7.06.  Other Allocation Rules

  	
  28

  
	
  Section 7.07.  Certain Costs And Expenses

  	
  28

  
	
   

  	
   

  
	
  ARTICLE 8

  
	
  MANAGEMENT AND CONTROL OF
  BUSINESS

  
	
   

  	
   

  
	
  Section 8.01.  Management

  	
  28

  
	
  Section 8.02.  Certain Covenants

  	
  29

  
	
  Section 8.03.  Investment Company Act

  	
  29

  
	
   

  	
   

  
	
  ARTICLE 9

  
	
  OFFICERS

  
	
   

  	
   

  
	
  Section 9.01.  Officers

  	
  29

  
	
  Section 9.02.  Other Officers and Agents

  	
  30

  
	
  Section 9.03.  Chief Executive Officer

  	
  30

  
	
  Section 9.04.  Treasurer

  	
  30

  
	
  Section 9.05.  Secretary

  	
  30

  
	
  Section 9.06.  Other Officers

  	
  30

  



 


ii

















 


	
  ARTICLE 10

  
	
  TRANSFERS OF INTERESTS;
  ADMITTANCE OF NEW MEMBERS

  
	
   

  
	
  Section 10.01.  Transfer of Membership
  Interests

  	
  30

  
	
  Section 10.02.  Transfer of WIND’s Interest

  	
  31

  
	
  Section 10.03.  Lock Up

  	
  31

  
	
  Section 10.04.  Recognition of Transfer;
  Substituted and Additional Members

  	
  32

  
	
  Section 10.05.  Expense of Transfer;
  Indemnification

  	
  33

  
	
  Section 10.06.  Exchange Agreement

  	
  33

  
	
   

  	
   

  
	
  ARTICLE 11

  
	
  DISSOLUTION AND TERMINATION

  
	
   

  
	
  Section 11.01.  Dissolution

  	
  34

  
	
  Section 11.02.  Termination

  	
  35

  
	
   

  	
   

  
	
  ARTICLE 12

  
	
  EXCULPATION AND INDEMNIFICATION

  
	
   

  
	
  Section 12.01.  Exculpation

  	
  35

  
	
  Section 12.02.  Indemnification

  	
  36

  
	
  Section 12.03.  Expenses

  	
  36

  
	
  Section 12.04.  Non-Exclusivity

  	
  36

  
	
  Section 12.05.  Insurance

  	
  37

  
	
   

  	
   

  
	
  ARTICLE 13

  
	
  ACCOUNTING AND RECORDS; TAX MATTERS

  
	
   

  
	
  Section 13.01.  Accounting and Records

  	
  37

  
	
  Section 13.02.  Tax Returns

  	
  37

  
	
  Section 13.03.  Tax Partnership

  	
  37

  
	
  Section 13.04.  Tax Elections

  	
  37

  
	
  Section 13.05.  Tax Matters Member

  	
  38

  
	
   

  	
   

  
	
  ARTICLE 14

  
	
  ARBITRATION

  
	
   

  
	
  ARTICLE 15

  
	
  MISCELLANEOUS PROVISIONS

  
	
   

  
	
  Section 15.01.  Entire Agreement

  	
  40

  
	
  Section 15.02.  Binding on Successors

  	
  40

  
	
  Section 15.03.  Managing Member’s Business

  	
  40

  



 


iii

















 


	
  Section 15.04.  Debt or Equity Financing

  	
  40

  
	
  Section 15.05.  Governing Law

  	
  40

  
	
  Section 15.06.  Headings

  	
  40

  
	
  Section 15.07.  Severability

  	
  41

  
	
  Section 15.08.  Notices

  	
  41

  
	
  Section 15.09.  Amendments

  	
  41

  
	
  Section 15.10.  Consent to Jurisdiction

  	
  42

  
	
  Section 15.11.  WAIVER OF JURY TRIAL

  	
  42

  



 


iv

















 


LIMITED
LIABILITY COMPANY AGREEMENT


 


of


 


FIRST WIND HOLDINGS, LLC


 


upon and after
the Effective Time referred to herein


 


This LIMITED LIABILITY COMPANY AGREEMENT of First
Wind Merger, LLC, a Delaware limited liability company (“Merger LLC”),
dated as of           , 2010,
is adopted, executed and agreed to, for good and valuable consideration, by
First Wind Holdings Inc., a Delaware corporation (“WIND”),
First Wind Holdings, LLC, a Delaware limited liability company (the “Company”) and the Members of the Company whose signatures
appear hereon.  As provided in Article 2,
upon and after the Effective Time, this Agreement shall amend, restate and
replace in its entirety the Fifth Amended and Restated Limited Liability Company
Agreement of First Wind Holdings, LLC, dated as of July 17, 2009 (the “Prior LLC Agreement”) and become the limited liability
company agreement of the Company. 
Capitalized terms used but not simultaneously defined are defined in or
by reference to Section 1.01.


 


W I T N E S S E T H:


 


WHEREAS, the Company was formed as a limited
liability company on January 2, 2002, pursuant to the Delaware Limited
Liability Company Act (6 Del.C.
§18-101, et seq.), as amended
from time to time (the “Delaware LLC Act”)
by the filing of its Certificate of Formation (as amended, the “Certificate”) with the Secretary of State;


 


WHEREAS, Merger LLC, a Subsidiary of WIND, was
formed as a limited liability company, pursuant to the Delaware LLC Act by the
filing of its Certificate of Formation (the “Merger LLC
Certificate”) with the Secretary of State;


 


WHEREAS, WIND, the Company and Merger LLC have
entered into an Agreement and Plan of Merger (the “Merger
Agreement”), annexed hereto as Annex I, pursuant to which, at the
Effective Time, Merger LLC will merge with and into the Company, with the
Company surviving such merger (the “Merger”);


 


WHEREAS, prior to the Effective Time, the Company
was governed by the Prior LLC Agreement;


 


WHEREAS, until the Effective Time, this Agreement shall
be the operating agreement of Merger LLC, and upon and after the Effective
Time, this Agreement shall continue as the operating agreement of the Company
and, with the Required Sponsor Approval and Special B Approval pursuant to Section 13.5
of the Prior LLC Agreement, as evidenced by their signatures hereto, the Prior
LLC Agreement shall be terminated and have no further force or effect;


 


WHEREAS, pursuant to Section 7.8 of the Prior
LLC Agreement, in connection with any proposed Qualified Public Offering (as
defined in the Prior LLC Agreement) approved in 


 

















 


accordance with Section 8.6(h) of the
Prior LLC Agreement, the Company may, in one or a series of transactions, (i) merge
with or convert into a corporation that is an Affiliate of the Company, or a
Subsidiary thereof (the “IPO Corporation”),
pursuant to an agreement and plan of merger or conversion that provides for the
exchange of Units (in the form outstanding under the Prior LLC Agreement) for
common stock of such corporation, (ii) exchange such Units for a
combination of common stock of the IPO Corporation and units with revised
membership rights in the Company or any Affiliate, or (iii) effect any
other type of reorganization, conversion, merger, restructuring and/or
reclassification, in each case in accordance with applicable provisions of the
Delaware LLC Act, for the express purpose of effecting a Qualified Public
Offering;


 


WHEREAS, the Company formed WIND with the intent
that WIND serve as the IPO Corporation and effect a Qualified Public Offering;


 


WHEREAS, WIND and the Company have entered into an
underwriting agreement (the “IPO Underwriting Agreement”)
with the several underwriters (the “IPO Underwriters”)
named therein, providing for the initial public offering (the “IPO”) of        shares of WIND’s
class A common stock, par value $0.001 per share (the “Class A
Shares”); and such IPO meets the requirements of a Qualified Public
Offering;


 


WHEREAS, in accordance with Section 8.6(h) of
the Prior LLC Agreement, the Board (as defined in the Prior LLC Agreement) has
approved the IPO as a Qualified Public Offering pursuant to Section 8.2(e) thereof
and the Required Sponsor Approval thereof has been duly obtained, as evidenced
by their signatures hereto, and therefore the conversion, exchange or
cancellation of Units (in the form outstanding under the Prior LLC Agreement)
in connection therewith and pursuant to Section 7.8 thereof does not
require further approval pursuant to Section 8.6(h) thereof;


 


WHEREAS, at the Effective Time, pursuant to the
Merger Agreement:  (i) the Merger
will occur; (ii) all Units previously outstanding under the Prior LLC
Agreement will be exchanged for Series B Membership Interests, Class A
Shares or cancelled, in connection with which the Company will issue a number
of Series B Membership Interests to each Member receiving a Series B
Membership Interest as set forth opposite such Member’s name on Exhibit A
hereto; (iii) WIND will issue one share of its class B common stock, par
value $0.001 per share (the “Class B Shares”)
to each Member for each Series B Membership Interest issued to such
Member; and (iv) the Company will issue a number of Series A
Membership Interests to WIND equal to the number of Class A Shares issued
by WIND pursuant to the Merger Agreement; and immediately after the Effective
Time, the Company will issue a number of Series B Membership Interests,
and WIND shall issue corresponding Class B Shares, to HSH Nordbank AG, New
York Branch, in consideration of the exercise of a warrant for the purchase of
Units (in the form outstanding under the Prior LLC Agreement);


 


2

















 


WHEREAS, pursuant to the Blocker Merger Agreement,
at the Blocker Merger Effective Time specified therein, WIND will issue
     Class A Shares to D. E. Shaw MWPH Acquisition
Holdings, L.L.C., and at the Effective Time, the Company will issue
     Series A Membership Interests to WIND;


 


WHEREAS, pursuant to the IPO Underwriting
Agreement, WIND will issue      Class A Shares  to
the public in the IPO and use the net proceeds received by it to purchase
     additional Series A Membership Interests (and may
issue additional Class A Shares and purchase an equivalent number of Series A
Membership Interests with the net proceeds thereof if and to the extent the IPO
Underwriters exercise their option to purchase additional Class A Shares);
and


 


WHEREAS, upon consummation of the IPO, and with the
Required Sponsor Approval pursuant to Section 13.5 of the Prior LLC
Agreement, as evidenced by their signatures hereto, WIND will serve as the sole
managing member (the “Managing Member”)
of the Company;


 


NOW,
THEREFORE, the Members and the Company hereby agree as follows:


 


ARTICLE 1


DEFINED
TERMS


 


Section 1.01.  Definitions.  As used in this Agreement, the following
terms have the following meanings:


 


“Adjusted Capital Account”
means, with respect to any Member, the balance in such Member’s Capital Account
as of the end of the relevant Fiscal Year or period, adjusted as follows:


 


(a)                   increased by the sum of (x) any amounts which such Member is
obligated or has agreed to contribute (but has not yet contributed) to the
Company and (y) the amounts which such Member is obligated to restore or
is deemed to be obligated to restore pursuant to Treas. Reg. § 1.704-1(b)(2)(ii)(c),
Treas. Reg. § 1.704-2(g)(1) and Treas. Reg. § 1.704-2(i)(5); and


 


(b)                   decreased by the items described in subclauses (4), (5) and (6) of
Treas. Reg. § 1.704-1(b)(2)(ii)(d) with respect to such Member.


 


“Affiliate”
means, when used with respect to a specified Person, any Person which (a) directly
or indirectly Controls, is Controlled by or is Under Common Control with such
specified Person, (b) is an officer, director, general partner, trustee or
manager of such specified Person or of a Person described in clause (a), or (c) is
a Relative of such specified Person or of an individual described in clauses (a) or
(b).


 


“Agreement”
means this Limited Liability Company Agreement.


 


3

















 


“Applicable Law”
means, to the extent applicable to the Company or its activities or any Member,
as applicable: (a) all United States federal and state statutes and laws
and all statutes and laws of foreign countries; (b) all rules and
regulations (including interpretations thereof) of all regulatory agencies,
organizations and bodies; and (c) all rules and regulations
(including interpretations thereof) of all self-regulatory agencies,
organizations and bodies now or hereafter in effect.


 


“Assumed Tax Liability”
means an amount equal to 43% times the aggregate amount of all items of income,
gain, deduction, loss, and credit allocated to such Member pursuant to Section 7.05
(computed without regard to (i.e., ignoring) any reduction in income
attributable to any basis adjustments with respect to a Member as a result of
the Company’s election pursuant to Section 754 of the Code).


 


“Blocker Merger Agreement”
means the Agreement and Plan of Merger dated as of the Effective Date among
WIND, the Company, D. E. Shaw
MWPH Acquisition Holdings, L.L.C. and the Blocker LLCs party thereto.


 


“Book Value”
means, with respect to any property, such property’s adjusted basis for federal
income tax purposes, except as follows:


 


(a)                   The initial Book Value of any property contributed by a Member to the
Company shall be the fair market value of such property as reasonably
determined by the Managing Member;


 


(b)                   The Book Values of all properties shall be adjusted to equal their
respective fair market values as determined in the Managing Member’s discretion
in connection with (i) the acquisition of an interest in the Company by
any new or existing Member in exchange for more than a de minimis
capital contribution to the Company, (ii) the distribution by the Company
to a Member of more than a de minimis amount
of property as consideration for an interest in the Company, or (iii) the
liquidation of the Company within the meaning of Treas. Reg. §
1.704-1(b)(2)(ii)(g)(I) (other than pursuant to Section 708(b)(1)(B) of
the Code);


 


(c)                    The Book Value of property distributed to a Member shall be the fair
market value of such property as determined by the Managing Member; and


 


(d)                   The Book Value of all property shall be increased (or decreased) to
reflect any adjustments to the adjusted basis of such property pursuant to Code
Section 734(b) or Code Section 743(b), but only to the extent
that such adjustments are taken into account in determining Capital Accounts
pursuant to Treas. Reg. § 1.704-1 (b)(2)(iv)(m) and clause (f) of the
definition of Net Profits and Net Losses; provided, however,
that Book Value shall not be adjusted pursuant to this clause (d) to the
extent the Managing Member determines that an adjustment pursuant to clause (b) hereof
is necessary or


 


4














 


appropriate in connection
with the transaction that would otherwise result in an adjustment pursuant to
this clause (d).


 


If the Book Value of property has been determined
or adjusted pursuant to clauses (b) or (d) hereof, such Book Value
shall thereafter be adjusted by the Depreciation taken into account with
respect to such property for purposes of computing Net Profits and Net Losses
and other items allocated pursuant to Article 7.


 


“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.


 


“Business Opportunity”
is defined in Section 5.04.


 


“Capital Account”
is defined in Section 7.01(a).


 


“Capital Contribution”
means the amount of all cash capital contributions by a Member to the Company
and the fair market value of any property contributed by a Member to the
Company (net of any liabilities secured by such property that the Company is
considered to assume or take subject to under Section 752 of the Code).


 


“Certificate” is
defined in the recitals.


 


“Change” is
defined in the recitals.


 


“Class A Shares”
is defined in the recitals.


 


“Class B Shares”
is defined in the recitals.


 


“Closing Date”
means the closing date of the IPO.


 


“Code” means the
Internal Revenue Code of 1986, as amended from time to time, or any successor
federal income tax code.


 


“Company” is
defined in the preamble.


 


“Company Minimum Gain”
means “partnership minimum gain” as that term is defined in Treas. Reg. §
1.704-2(d).


 


“Control,”
including the correlative terms “Controlling,” “Controlled by” and “Under Common Control with”
means possession, directly or indirectly (through one or more intermediaries),
of the power to direct or cause the direction of management or policies
(whether through ownership of securities or any partnership or other ownership
interest, by contract or otherwise) of a Person.


 


5

















 


“Delaware LLC Act”
is defined in the recitals.


 


“Depreciation”
means, for each Fiscal Year, an amount equal to the depreciation, amortization
or other cost recovery deduction allowable for federal income tax purposes with
respect to property for such taxable year, except that (a) with respect to
any property the Book Value of which differs from its adjusted tax basis for
federal income tax purposes and which difference is being eliminated by use of
the remedial allocation method pursuant to Treas. Reg. § 1.704-3(d),
Depreciation for such taxable year shall be the amount of Book Value recovered
for such taxable year under the rules prescribed by Treas. Reg. §
1.704-3(d)(2), and (b) with respect to any other property the Book Value
of which differs from its adjusted tax basis at the beginning of such taxable
year, Depreciation shall be an amount which bears the same ratio to such
beginning Book Value as the federal income tax depreciation, amortization or
other cost recovery deduction for such taxable year bears to such beginning
adjusted tax basis; provided that
if the adjusted tax basis of any property at the beginning of such taxable year
is zero, Depreciation with respect to such property shall be determined with
reference to such beginning value using any reasonable method selected by the
Managing Member.


 


“Depreciation Recapture”
is defined in Section 7.05.


 


“Dispute” is defined in Article 14.


 


“Economic Risk of Loss”
has the meaning assigned to such term in Treas. Reg. § 1.752-2(a).


 


“Effective Date”
is defined in the Merger Agreement.


 


“Effective Time”
is defined in the Merger Agreement.


 


“Equity Securities”
means, as applicable, (a) any capital stock, membership interests, other
share capital or securities containing any profit participation features, (b) any
securities directly or indirectly convertible or exercisable into or
exchangeable for any capital stock, membership interests, other share capital
or securities containing any profit participation features, (c) any rights
or options directly or indirectly to subscribe for or to purchase any capital
stock, membership interests, other share capital or securities containing any
profit participation features or to subscribe for or to purchase any securities
directly or indirectly convertible or exercisable into or exchangeable for any
capital stock, membership interests, other share capital or securities
containing any profit participation features, (d) any share appreciation
rights, phantom share rights or other similar rights, or (e) any equity
securities, rights or instruments issued or issuable with respect to any of the
foregoing referred to in clauses (a) through (d) above in connection
with a combination, subdivision, recapitalization, merger, consolidation,
conversion, share exchange or other reorganization or similar event or
transaction.


 


“Exchange Agreement”
means the Exchange Agreement dated as of the Effective Date among WIND and the
other parties thereto.


 


6

















 


“Exchange Rate”
is defined in the Exchange Agreement; provided that
for purposes of Section 4.02 and Section 4.03, the “Exchange Rate”
for determining the number of Series A Membership Interests to be issued,
forfeited, vested, redeemed, repurchased or otherwise dealt with in connection
with similar actions involving Class A Shares shall be the same for Series A
Membership Interests as it is at the time under the Exchange Agreement for
Exchanges (as defined in the Exchange Agreement) of Series B Membership
Interests for Class A Shares.


 


“Fair Market Value”
means, with respect to specified property as of any date, the fair market value
for such property as between a willing buyer under no compulsion to buy and a
willing seller under no compulsion to sell in an arm’s length transaction
occurring on such date, taking into account all relevant factors determinative
of value (including in the case of securities any restrictions on transfer
applicable thereto), as is reasonably determined in good faith by the Managing
Member.


 


“Fiscal Year”
means, except as otherwise required by Applicable Law, for the Company’s
financial reporting and federal income tax purposes, a period commencing January 1
and ending December 31 of each year, or such other period as the Managing
Member may determine.


 


“Indemnitee” is
defined in Section 12.02.


 


“Initiating Party”
is defined in Article 14.


 


“Investment
Company Act” means the Investment Company Act of 1940, as amended
from time to time.


 


“IPO” is defined
in the recitals.


 


“IPO Corporation”
is defined in the recitals.


 


“IPO Underwriters”
is defined in the recitals.


 


“IPO Underwriting Agreement”
is defined in the recitals.


 


“Losses” is defined in Section 12.02.


 


“Majority Holders,”
at any time, means Members holding a majority of the Series B Membership
Interests at such time outstanding; provided, however, that if the outstanding Series B Membership
Interests represent less than 25% of the aggregate Series B Membership
Interests issued at the Effective Time, “Majority Holders”
shall mean the Managing Member.


 


“Managing Member”
is defined in the recitals.


 


7

















 


“Member” means (i) until
the Effective Time, WIND and any other Merger LLC Member and (ii) upon and
after the Effective Time, each Person listed on Exhibit A hereto and
each other Person that becomes a member of the Company as provided herein, so
long as such Person continues as a member of the Company.


 


“Membership Interest”
means a Series A Membership Interest, Series B Membership Interest or
a membership interest in respect of any other class of Membership Interests
that hereafter may be issued by the Company in accordance with Section 4.02.


 


“Member Nonrecourse Debt”
has the meaning assigned to the term “partner nonrecourse debt” in Treas. Reg.
§ 1.704-2(b)(4).


 


“Member Nonrecourse Debt
Minimum Gain” has the meaning assigned to the term “partner
nonrecourse debt minimum gain” in Treas. Reg. § 1.704-2(i)(2).


 


“Member Nonrecourse
Deductions” has the meaning assigned to the term “partner
nonrecourse deductions” in Treas. Reg. § 1.704-2(i)(1).


 


“Merger Agreement”
is defined in the recitals.


 


“Merger LLC” is
defined in the recitals.


 


“Merger LLC Certificate”
is defined in the recitals.


 


“Merger LLC Member”
is defined in Section 2.02.


 


“Merger LLC Officers”
is defined in Section 2.02(n).


 


“Merger LLC Unit”
is defined in Section 2.02(j).


 


“Net Profits”
and “Net Losses” for any Fiscal Year or
other period means, respectively, an amount equal to the Company’s taxable
income or loss for such taxable year, determined in accordance with Code Section 703(a) (for
this purpose, all items of income, gain, loss, or deduction required to be
stated separately pursuant to Code Section 703(a)(1) shall be
included in taxable income or loss), with the following adjustments (without
duplication):


 


(a)                   Any income of the Company that is exempt from federal income tax and not
otherwise taken into account in computing Net Profits and Net Losses pursuant
to this definition of “Net Profits” and “Net Losses” shall be added to such
taxable income or loss;


 


(b)                   Any expenditures of the Company described in Code Section 705(a)(2)(B) or
treated as Code Section 705(a)(2)(B) expenditures pursuant to Treas.
Reg. § 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in
computing Net Profits or Net 


 


8

















 


Losses pursuant to this
definition of “Net Profits” and “Net Losses” shall be subtracted from such
taxable income or loss;


 


(c)                    In the event the Book Value of any asset is adjusted pursuant to clause
(b), clause (c) or clause (d) of the definition of Book Value, the
amount of such adjustment shall be treated as an item of gain (if the
adjustment increases the Book Value of the asset) or an item of loss (if the
adjustment decreases the Book Value of the asset) from the disposition of such
asset and shall be taken into account for purposes of computing Net Profits or
Net Losses;


 


(d)                   Gain or loss resulting from any disposition of property with respect to
which gain or loss is recognized for federal income tax purposes shall be
computed by reference to the Book Value of the property disposed of,
notwithstanding that the adjusted tax basis of such property differs from its
Book Value;


 


(e)                    In lieu of the depreciation, amortization, and other cost recovery
deductions taken into account in computing such taxable income or loss, there
shall be taken into account Depreciation for such taxable year;


 


(f)                     To the extent an adjustment to the adjusted tax basis of any asset
pursuant to Code Section 734(b) is required, pursuant to Treas. Reg.
§ 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital
Account balances as a result of a distribution other than in liquidation of a
Member’s interest in the Company, the amount of such adjustment shall be
treated as an item of gain (if the adjustment increases the basis of the asset)
or an item of loss (if the adjustment decreases such basis) from the
disposition of such asset and shall be taken into account for purposes of
computing Net Profits or Net Losses; and


 


(g)                    Any items that are allocated pursuant to Section 7.04 shall be
determined by applying rules analogous to those set forth in clauses (a) through
(f) hereof but shall not be taken into account in computing Net Profits
and Net Losses.


 


“Nonrecourse Deductions”
is defined in Treas. Reg. § 1.704-2(b).


 


“Notice” is defined in Section 15.08.


 


“Prior LLC Agreement”
is defined in the preamble.


 


“Panel” is defined in Article 14.


 


“Percentage Interest”
of each Member is set forth on Exhibit A hereto, which may be amended from
time to time and which shall be equal to a fraction (expressed as a percentage), the numerator of which is the number of Series A
Membership Interests and Series B Membership Interests held by such Member
and the denominator of which is the number of 


 


9

















 


Series A Membership Interests and Series B
Membership Interests held by all the Members (it being understood that if the
Company hereafter issues any Equity Securities other than Series A
Membership Interests or Series B Membership Interests, then this
definition shall be changed pursuant to an amendment of this Agreement in accordance with the terms hereof).


 


“Permitted Transferee”
means (i) the spouse of such Member, (ii) any trust, or family
partnership or family limited liability company, the sole beneficiary of which
is such Member, the spouse of, or any Person related by blood or adoption to,
such Member, (iii) an Affiliate of such Member, (iv) in the context
of a distribution by such Member to its direct or indirect equity owners
substantially in proportion to such ownership, the partners, members or
stockholders of such Member, or the partners, members or stockholders of such
partners, members or stockholders and (v) any Transferee in a Transfer
that complies with Article 10.


 


“Permitted
Transferee Member” means a Permitted Transferee that is admitted as
a Member pursuant to the terms of this Agreement.


 


“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.


 


“Registration Rights Agreement” means the Registration Rights
Agreement dated as of the Effective Date among WIND and the other parties
thereto.


 


“Regulatory Allocations”
is defined in Section 7.04(b).


 


“Relative” means
any Person’s child, stepchild, grandchild, parent, stepparent, grandparent,
spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including
adoptive relationships and any Person sharing such Person’s household (other
than a tenant or employee).


 


“Renounced  Business Opportunity” is defined in Section 5.04.


 


“Responding Party”
is defined in Article 14.


 


“Secretary of State”
means the Secretary of State of the State of Delaware.


 


“Securities Act”
means the Securities Act of 1933, as amended from time to time.


 


“Series A Membership
Interests” is defined in Section 4.01(a).


 


“Series B Membership
Interests” is defined in Section 4.01(a).


 


10

















 


“Sponsor Group”
is defined in Section 5.04.


 


“Subsidiary”
means (a) any corporation, limited liability company or other entity a
majority of the capital stock or other equity interests of which having
ordinary voting power to elect a majority of the board of directors or other
Persons performing similar functions is at the time owned, directly or
indirectly, with power to vote, by the Company or any direct or indirect
Subsidiary of the Company or (b) a partnership in which the Company or any
direct or indirect Subsidiary is a general partner.


 


“Subsidiary Partnership”
means an entity which is a partnership for U.S. federal income tax purposes and
with respect to which the Company Controls, directly or indirectly, the general
partner or managing member of such entity or otherwise Controls such entity.


 


“Tax Distribution Date”
is defined in Section 6.02.


 


“Tax Matters Member”
is defined in Section 13.05(a).


 


“Tax Receivable Agreement”
means the Tax Receivable Agreement dated as of the Effective Date among WIND,
the Company and the other parties thereto.


 


“Transfer” is
defined in Section 10.01.


 


“Transaction Documents”
means, collectively, this Agreement, the Exchange Agreement, the Registration
Rights Agreement and the Tax Receivable Agreement.


 


“Treasury Regulations”
or “Treas. Reg.” means the Federal income
tax regulations promulgated under the Code, as such Treasury Regulations may be
amended from time to time (it being understood that all references herein to
specific sections of the Treasury Regulations shall be deemed also to refer to
any corresponding provisions of succeeding Treasury Regulations).


 


“WIND” is
defined in the recitals.


 


Section 1.02.  Other Definitional and
Interpretative Provisions.  The
words “hereof,” “herein” and “hereunder” and words of like import used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement.  The
headings and captions herein are included for convenience of reference only and
shall be ignored in the construction or interpretation hereof.  References to Articles, Sections, Exhibits
and Annexes are to Articles, Sections, Exhibits and Annexes of this Agreement
unless otherwise specified.  Any capitalized
term used in any Exhibit but not otherwise defined therein has the meaning
ascribed to such term in this Agreement. 
Any singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular. 
Whenever the words “include,” “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without
limitation,” whether or not they are in fact followed by those words or words
of like 


 


11

















 


import.  “Writing,”
“written” and comparable terms refer to printing, typing and other means of
reproducing words (including electronic media) in a visible form.  References to any agreement or contract are
to that agreement or contract as amended, restated, modified or supplemented
from time to time in accordance with the terms thereof.  References to any Person include the
successors and permitted assigns of that Person.  References from or through any date mean,
unless otherwise specified, from and including or through and including,
respectively.  References to “law,” “laws”
or to a particular statute or law shall be deemed also to include any and all
Applicable Laws.


 


ARTICLE 2


THE
EFFECTIVE TIME


 


Section 2.01.  Prior to, Upon and After the
Effective Time.


 


(a)                         Prior to the Effective Time, this Agreement shall be Merger LLC’s “operating
agreement” within the meaning of the Delaware LLC Act, and the provisions of Article 1,
this Article 2 and Section 15.05 shall control.


 


(b)                         Upon and after the Effective Time,(i) this Agreement shall amend,
restate and replace in its entirety the Prior LLC Agreement and become the
limited liability company agreement of the Company and the Company’s “operating
agreement” within the meaning of the Delaware LLC Act, and (ii) the
provisions of this Article 2, other than subsections (b) and (c) of
this Section 2.01, shall be wholly inoperable.


 


(c)                          The remaining provisions of Article 3 through Article 15 shall
be inoperable until the Effective Time and shall become effective upon the
Effective Time.


 


Section 2.02.  Formation of Merger LLC.  WIND, having filed the Merger LLC
Certificate with the Secretary of State pursuant to the Delaware LLC Act, and
as the sole member (a “Merger LLC Member”)
of Merger LLC, hereby agrees as follows:


 


(a)                         Name.  The name of the limited liability company
formed by the filing of the Merger LLC Certificate is First Wind Merger, LLC.


 


(b)                         Filing of Certificates.  WIND, as an authorized person, within the
meaning of the Delaware LLC Act, shall execute, deliver and file, or cause the
execution, delivery and filing of, all certificates required or permitted by
the Delaware LLC Act to be filed in the Office of the Secretary of State and
any other certificates, notices or documents required or permitted by law for
Merger LLC to qualify to do business in any jurisdiction in which Merger LLC
may wish to conduct business.


 


12

















 


(c)                          Purposes.  The purposes of Merger LLC are (i) to
enter into and perform the Merger Agreement and (ii) to engage in any
lawful act or activity for which limited liability companies may be formed
under the Delaware LLC Act.


 


(d)                         Powers.  In furtherance of its purposes, but subject
to all of the provisions of this Agreement, Merger LLC shall have and may
exercise all the powers now or hereafter conferred by Delaware law on limited
liability companies formed under the Delaware LLC Act.  Merger LLC shall have the power to do any and
all acts necessary, appropriate, proper, advisable, incidental or convenient to
or for the protection and benefit of Merger LLC, and shall have, without
limitation, any and all of the powers that may be exercised on behalf of Merger
LLC by WIND.


 


(e)                          Principal Business Office.  The principal business office of Merger LLC
shall be located at such location as may hereafter be determined by WIND.


 


(f)                           Registered Office; Registered Agent.  The address of the registered office in the
State of Delaware is located at Corporation Trust Center, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801, and the name and address of the
registered agent of Merger LLC in the State of Delaware is the Corporation
Trust Company, 1209 Orange Street, Wilmington, New Castle County, Delaware
19801.


 


(g)                          Merger LLC Member.  The name of the sole Merger LLC Member is
First Wind Holdings Inc. and its mailing address is 179 Lincoln Street, Suite 500,
Boston, Massachusetts 02111, Attention: 
General Counsel.


 


(h)                         Limited Liability.  Except as required by the Delaware LLC Act,
the debts, obligations and liabilities of Merger LLC, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of Merger LLC, and WIND shall not be obligated personally for any
such debt, obligation or liability of Merger LLC solely by reason of being a
Merger LLC Member.


 


(i)                             Capital Contributions.  WIND is deemed admitted as a Merger LLC
Member upon its execution and delivery of this Agreement.  WIND may, but is not obligated to make any
capital contribution to Merger LLC.


 


(j)                            Merger LLC Units; Capitalization.  Each Merger LLC Member’s interest in Merger
LLC, including such Merger LLC Member’s interest, if any, in the capital,
income, gain, loss, deduction and expense of Merger LLC and the right to vote,
if any, on certain Merger LLC matters, shall be represented by units of limited
liability company interest (each, a “Merger LLC Unit”).  The total number of authorized Merger LLC
Units consists of an unlimited number of authorized Merger LLC Units.


 


(k)                         Allocation of Profits and Losses.  Merger LLC’s profits and losses shall be
allocated solely to WIND.


 


13

















 


(l)                             Distributions.  Subject to the limitations of Section 18-607
of the Delaware LLC Act and any other applicable law, distributions shall be
made to WIND at the times and in the aggregate amounts determined by WIND.


 


(m)                     Management.  In accordance with Section 18-402 of the
Delaware LLC Act, management of Merger LLC shall be vested in WIND.  WIND shall have the power to do any and all
acts necessary, convenient or incidental to or for the furtherance of the
purposes described herein, including all powers, statutory or otherwise,
possessed by members of a limited liability company under the laws of the State
of Delaware.  WIND has the authority to
bind Merger LLC.


 


(n)                         Merger LLC Officers.  WIND may, from time to time as it deems
advisable, select natural persons who are employees or agents of Merger LLC and
designate them as Merger LLC officers (the “Merger
LLC Officers”) and assign titles to any such person.  Unless WIND decides otherwise, if the title
is one commonly used for officers of a business corporation formed under the
Delaware General Corporation Law, the assignment of such title shall constitute
the delegation to such person of the authorities and duties that are normally
associated with that office.  Any
delegation pursuant to this subsection (n) may be revoked at any time by
WIND.  A Merger LLC Officer may be
removed with or without cause by WIND.


 


(o)                         Other Business.  WIND may engage in or possess an interest in
other business ventures of every kind and description, independently or with
others.  Merger LLC shall not have any
rights in or to such independent ventures or the income or profits therefrom by
virtue of this Agreement.


 


(p)                         Exculpation and Indemnification.


 


(i)                     To the fullest extent permitted by the laws of the State of Delaware and
except in the case of bad faith, gross negligence or willful misconduct, no
Merger LLC Member or Merger LLC Officer shall be liable to Merger LLC or any
other Merger LLC Member for any loss, damage or claim incurred by reason of any
act or omission performed or omitted by such Merger LLC Member or Merger LLC
Officer in good faith on behalf of Merger LLC and in a manner reasonably
believed to be within the scope of the authority conferred on such Merger LLC
Member or Merger LLC Officer by this Agreement.


 


(ii)                  Except in the case of bad faith, gross negligence or willful misconduct,
each person (and the heirs, executors or administrators of such person) who was
or is a party or is threatened to be made a party to, or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person is or was a Merger LLC Member or Merger LLC Officer, shall be
indemnified and held harmless by Merger LLC to the fullest extent permitted by
the laws of the State of Delaware for directors and officers of


 


14














 


corporations
organized under the laws of the State of Delaware.  Any indemnity under this clause (ii) shall
be provided out of and to the extent of Merger LLC’s assets only, and no Merger
LLC Member shall have personal liability on account thereof.


 


(q)        Assignments.  WIND may not assign in whole or in part its
limited liability company interest in Merger LLC.


 


(r)         Resignation.  WIND may at any time resign from Merger
LLC.  If WIND resigns pursuant to this
subsection (r), an additional Merger LLC Member designated by WIND shall be
admitted to Merger LLC, upon its execution of an instrument signifying its
agreement to be bound by the terms and conditions of this Agreement.  Such admission shall be deemed effective
immediately prior to the resignation, and, immediately following such
admission, the resigning Merger LLC Member shall cease to be a Merger LLC
Member.


 


(s)        Admission of Additional Merger LLC
Members.  One or more additional
Merger LLC Members may be admitted to Merger LLC with the written consent of
WIND.


 


(t)         Dissolution.


 


(i)            Merger LLC shall dissolve and its
affairs shall be wound up upon the first to occur of:  (A) the written consent of WIND or (B) the
entry of a decree of judicial dissolution under Section 18-802 of the
Delaware LLC Act.


 


(ii)           In the event of dissolution, Merger
LLC shall conduct only such activities as are necessary to wind up its affairs
(including the sale of the assets of Merger LLC in an orderly manner), and the
assets or proceeds from the sale of the assets of Merger LLC shall be applied
in the manner, and in the order of priority, set forth in Section 18-804
of the Delaware LLC Act.


 


(u)        Severability.  If any
provision of this Section 2.02 or the application thereof is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable to any extent, the remainder of this Section 2.02 and the
application of such provisions shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.


 


(v)        Entire Agreement.  This Section 2.02 constitutes the entire
agreement of WIND with respect to the subject matter of this Section 2.02.


 


(w)       Amendments.  This Section 2.02 may not be modified,
altered, supplemented or amended except pursuant to a written agreement
executed and delivered by WIND.


 


(x)        Sole Benefit of Merger LLC Member.  The provisions of this Section 2.02 are
intended solely to benefit WIND and, to the fullest extent permitted by
applicable law, shall not be construed as conferring any benefit upon any
creditor of Merger LLC (and no such creditor 


 


15

















 


shall be a third-party
beneficiary of this Agreement), and WIND shall have no duty or obligation to
any creditor of Merger LLC to make any contributions or payments to Merger LLC.


 


ARTICLE 3


ORGANIZATION


 


Section 3.01.  Formation; Amendment and
Restatement.  The Company was
formed as a Delaware limited liability company under and pursuant to the
Delaware LLC Act.  The Members agree to
continue the Company as a limited liability company under the Delaware LLC Act,
upon the terms and subject to the conditions set forth in this Agreement.  The rights, powers, duties, obligations and
liabilities of the Members shall be determined pursuant to the Delaware LLC Act
and this Agreement.  To the extent that
the rights, powers, duties, obligations and liabilities of any Member are
different by reason of any provision of this Agreement than they would be in
the absence of such provision, this Agreement shall, to the extent permitted by
the Delaware LLC Act, control.


 


Section 3.02.  Company Name.  The name of the Company is First
Wind Holdings, LLC.  The business of the
Company may be conducted under that name or such other names as the Managing
Member may from time to time designate; provided, however, that the Company complies with Applicable Law
relating to name changes and the use of fictitious and assumed names.


 


Section 3.03.  Purposes of the Company.  The purposes of the Company are to
(a) acquire, own, operate and manage wind power generation projects
directly or through Subsidiaries and (b) to carry on any lawful business
or activity and to have and exercise all of the powers, rights and privileges
which a limited liability company organized pursuant to the Delaware LLC Act may
have and exercise.  The Company shall not
conduct any business which is forbidden by or contrary to Applicable Law.


 


Section 3.04.  Principal Place of
Business.  The principal place
of business of the Company shall be at such place as the Managing Member may
designate.  The Company may establish or
abandon from time to time such additional offices and places of business as the
Managing Member may deem appropriate in the conduct of the Company’s business.


 


Section 3.05.  Registered Office and
Agent.  The name of the
registered agent for service of process of the Company and the address of the
Company’s registered office in the State of Delaware shall be the initial
registered agent named in the Certificate and the office of the initial
registered agent named in the Certificate, or such other agent or office in the
State of Delaware as the Managing Member or the officers may from time to time
determine.


 


Section 3.06.  Qualification in Other
Jurisdictions.  The Managing
Member or the Chief Executive Officer shall execute, deliver and file
certificates (and any amendments and/or 


 


16

















 


restatements thereof) necessary for the Company to
qualify to do business in the jurisdictions in which the Company may wish to
conduct business.  In those jurisdictions
in which the Company may wish to conduct business in which qualification or
registration under assumed or fictitious names is required or desirable, the
Managing Member or the Chief Executive Officer shall cause the Company to be so
qualified or registered in compliance with Applicable Law.


 


Section 3.07.  Term.  The term of the Company shall
continue indefinitely unless the Company is dissolved in accordance with the
provisions of this Agreement and the Delaware LLC Act.


 


Section 3.08.  No State-law Partnership.  The Members intend that the
Company shall not be a partnership (including a limited partnership) or joint
venture, and that no Member or officer shall be a partner or joint venturer of
any other Member or officer by virtue of this Agreement, for any purposes other
than as is set forth in the last sentence of this Section 3.08, and this
Agreement shall not be construed to the contrary.  The Members intend that the Company be
treated as a partnership for U.S. federal income tax purposes and under state
tax laws, and the Company shall not elect to be treated as an association
taxable as a corporation.


 


ARTICLE 4


CAPITALIZATION


 


Section 4.01.  Membership Interests;
Capitalization.


 


(a)        Membership Interests; Capitalization.  Each Member’s interest in the Company,
including such Member’s interest, if any, in the capital, income, gain, loss,
deduction and expense of the Company and the right to vote, if any, on certain
Company matters as provided in this Agreement, shall be represented by units of
limited liability company interest (each, a “Membership
Interest”).  The Company shall
have two authorized classes of Membership Interests, designated “Series A Membership Interests” and “Series B Membership Interests.”  The total number of authorized Membership
Interests consists of an unlimited number of authorized Series A
Membership Interests and      Series B Membership
Interests.  The ownership by a Member of
Membership Interests shall entitle such Member to allocations of profits and
losses and other items and distributions of cash and other property as is set
forth in Article 6 and Article 7.


 


(b)        Issuances of Series A Membership
Interests to Managing Member.  At the
Effective Time, the Company shall issue one Series A Membership Interest
to the Managing Member, and upon consummation of the IPO, the Company shall
issue to the Managing Member the balance of the number of Series A
Membership Interests set forth opposite the Managing Member’s name under the
column “Series A Membership Interests” set forth on Exhibit A.  The Managing Member shall hold all Series A
Membership Interests, and additional Series A 


 


17

















 


Membership
Interests may only be issued to the Managing Member, in accordance with the
terms and conditions of this Agreement.


 


(c)        Issuances of Series B Membership
Interests.  At the Effective Time and
pursuant to the Merger Agreement, the Company shall issue to each Member (other
than the Managing Member) the number of Series B Membership Interests set
forth opposite such Member’s name under the column “Series B Membership
Interests” on Exhibit A.  After the
Effective Time for each Series B Membership Interest issued to a Member, WIND
shall issue one Class B Share to such Member.


 


(d)        Members.  The Managing Member and the Persons listed on
Exhibit A are the sole Members of the Company as of the Effective
Time.  Exhibit A will be amended by
the Company from time to time in accordance with Section 5.01.


 


(e)        Certificates; Legends.  Membership Interests shall be issued in non
certificated form; provided that,
at the request of any Member, the Managing Member shall cause the Company to
issue one or more certificates to any such Member holding Series B
Membership Interests representing in the aggregate the Series B Membership
Interests held by such Member.  If any Series B
Membership Interest certificate is issued, then such certificate shall bear a
legend substantially in the following form:


 


THIS CERTIFICATE EVIDENCES SERIES B MEMBERSHIP
INTERESTS REPRESENTING A MEMBERSHIP INTEREST IN FIRST WIND HOLDINGS, LLC AND IS
A SECURITY WITHIN THE MEANING OF ARTICLE 8 OF THE UNIFORM COMMERCIAL
CODE.  THE MEMBERSHIP INTEREST IN FIRST
WIND HOLDINGS, LLC REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR ANY NON-U.S. OR STATE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH. 
THE MEMBERSHIP INTEREST IN FIRST WIND HOLDINGS, LLC REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN THE LIMITED
LIABILITY COMPANY AGREEMENT OF FIRST WIND HOLDINGS, LLC, DATED AS OF
          , 2010, AS THE SAME
MAY BE AMENDED FROM TIME TO TIME.


 


Section 4.02.  Authorization and Issuance of
Additional Membership Interests.


 


(a)        The Managing Member shall have the right
to cause the Company to issue and/or create and issue at any time after the
date hereof, and for such amount and form of consideration as the Managing
Member may determine, additional Membership Interests (of Series A
Membership Interests, Series B Membership Interests or new classes) or
other Equity Securities of the Company (including creating classes or series
thereof having such powers, designations, preferences and rights as may be
determined by the Managing Member), subject to Section 15.09.  The Managing Member shall have the power to
make such amendments to this Agreement in 


 


18

















 


order to provide for such
powers, designations, preferences and rights as the Managing Member in its
discretion deems necessary or appropriate to give effect to such additional
authorization or issuance in accordance with the provisions of this Section 4.02(a),
subject to Section 15.09.


 


(b)        At any time WIND issues one or more Class A
Shares (other than an issuance of the type covered by Section 4.02(d)),
WIND shall promptly contribute to the Company all the net proceeds (if any)
received by WIND with respect to such Class A Share or Class A
Shares.  Upon the contribution by WIND to
the Company of all of such net proceeds so received by WIND, the Managing
Member shall cause the Company to issue a number of Series A Membership
Interests determined based upon the Exchange Rate then in effect, registered in
the name of WIND.


 


(c)        At any time WIND issues one or more
shares of capital stock of WIND (other than Class A Shares or Class B
Shares), WIND shall contribute all (but not less than all) the net proceeds (if
any) received by WIND with respect to such share or shares of capital stock to
the Company.  After WIND contributes to
the Company all (but not less than all) such net proceeds so received by WIND,
then, subject
to the provisions of Section 4.02(a) and Section 15.09, the
Managing Member shall cause the Company to issue a corresponding number of
Membership Interests or other Equity Securities
of the Company (other than Series A Membership Interests or Series B
Membership Interests) (such corresponding number of Membership Interests to be
determined in good faith by the Managing Member, taking into account the
powers, designations, preferences and rights of such capital stock) registered
in the name of WIND.


 


(d)        At any time WIND issues one or more Class A
Shares in connection with an equity incentive program, whether such share or
shares are issued upon exercise (including cashless exercise) of an option,
settlement of a restricted stock unit, as restricted stock or otherwise, the
Managing Member shall cause the Company to issue a corresponding number of Series A
Membership Interests, registered in the name of WIND (determined based upon the
Exchange Rate then in effect); provided that
WIND shall be required to contribute all (but not less than all) the net
proceeds (if any) received by WIND from or otherwise in connection with such
issuance of one or more Class A Shares, including the exercise price of
any option exercised, to the Company.  If
any such Class A Shares so issued by WIND in connection with an equity
incentive program are subject to vesting or forfeiture provisions, then the Series A
Membership Interests that are issued by the Company to WIND in connection
therewith in accordance with the preceding provisions of this Section 4.02(d) shall
be subject to vesting or forfeiture on the same basis; if any of such Class A
Shares vest or are forfeited, then a corresponding number of the Series A
Membership Interests (determined based upon the Exchange Rate then in effect)
issued by the Company in accordance with the preceding provisions of this Section 4.02(d) shall
automatically vest or be forfeited.  Any
cash or property held by either WIND or the Company or on either’s behalf in
respect of dividends paid on restricted Class A Shares that fail to vest
shall be returned to the Company upon the forfeiture of such restricted Class A
Shares.


 


19

















 


(e)        For purposes of this Section 4.02, “net
proceeds” means gross proceeds to WIND from the issuance of Class A Shares
or other securities less all bona fide
out-of-pocket expenses of WIND, the Company and their respective Subsidiaries
in connection with such issuance.


 


Section 4.03.  Repurchase or Redemption of Class A
Shares. If, at any time, any Class A Shares are repurchased or
redeemed (whether by exercise of a put or call, automatically or by means of
another arrangement) by WIND for cash, then the Managing Member shall cause the
Company, concurrently with such repurchase or redemption of Class A
Shares, to redeem a corresponding number of Series A Membership Interests
held by WIND (determined based upon the Exchange Rate then in effect), at an
aggregate redemption price equal to the aggregate purchase or redemption price
of the Class A Share or Class A Shares being repurchased or redeemed
by WIND (plus any expenses related thereto) and upon such other terms as are
the same for the Class A Share or Class A Shares being repurchased or
redeemed by WIND.


 


Section 4.04.  Changes in Common Stock.  Any subdivision (by stock split,
stock dividend, reclassification, recapitalization or otherwise) or combination
(by reverse stock split, reclassification, recapitalization or otherwise) of Class A
Shares shall be accompanied by an identical subdivision or combination, as
applicable, of the Series A Membership Interests.


 


ARTICLE 5


MEMBERS


 


Section 5.01.  Names and Addresses.  The names and addresses of the
Members are set forth on Exhibit A attached hereto and made a part
hereof.  The Managing Member shall cause Exhibit A
to be amended from time to time to reflect the admission of any additional
Member, the withdrawal or termination of any Member, receipt by the Company of
notice of any change of address of a Member or the occurrence of any other
event requiring amendment of Exhibit A.


 


Section 5.02.  No Liability for Status as
Member.  The debts,
obligations and liabilities of the Company, whether arising in contract, tort
or otherwise, shall be solely the debts, obligations and liabilities of the
Company; and no Member shall have any personal liability whatsoever solely by
reason of its status as a Member, whether to the Company or to any creditor of
the Company, for the debts, obligations or liabilities of the Company or for
any of its losses beyond the amount of such Member’s personal obligation to pay
its Capital Contribution to the Company, and as otherwise set forth in the
Delaware LLC Act or under Applicable Law. 
Except as otherwise expressly provided in the Delaware LLC Act, the
liability of each Member for Capital Contributions shall be limited to the
amount of Capital Contributions required to be made by such Member in
accordance with the provisions of this Agreement, but only when and to the
extent the same shall become due pursuant to the provisions of this Agreement.  In no event shall any Member enter into any
agreement or instrument that would create or purport to create personal
liability on the part of any other Member for any debts, obligations or
liabilities of the Company without the prior written consent of such other
Member.  It is acknowledged and 


 


20

















 


agreed
that no Member is obligated to pay or make any future Capital Contribution to
the Company.


 


Section 5.03.  No Restrictions Of Business
Pursuits Of Member.  This
Agreement shall not preclude or limit in any respect the right of any Member to
engage in or possess any interest in other business ventures of any kind,
nature or description.


 


Section 5.04.  Business Opportunities.


 


(a)        The Company hereby renounces any
interest or expectancy in any business opportunity, transaction or other matter
in which any member of the Sponsor Group participates or desires or seeks to
participate in and that involves any aspect of the energy business or industry
(each, a “Business Opportunity”) other than a
Business Opportunity that is identified by the Sponsor Group solely through the
disclosure of information by or on behalf of the Company (any other Business
Opportunity referred to as a “Renounced Business
Opportunity”).  No member of
the Sponsor Group shall have any obligation to communicate or offer any
Renounced Business Opportunity to the Company, and any member of the Sponsor
Group may pursue for itself or direct, sell, assign or transfer to a Person
other than the Company any Renounced Business Opportunity.


 


(b)        Any Person purchasing or otherwise
acquiring any Membership Interests shall be deemed to have consented to these
provisions.


 


(c)        As used in this Section 5.04, “Sponsor Group” means, collectively, D. E. Shaw MWP
Acquisition Holdings, L.L.C., a Delaware limited liability company, D. E. Shaw
MWPH Acquisition Holdings, L.L.C., a Delaware limited liability company, Madison
Dearborn Capital Partners IV, L.P., a Delaware limited partnership, any of
their respective Affiliates (other than WIND and its Subsidiaries) and any
portfolio company in which D. E. Shaw MWP Acquisition Holdings, L.L.C., D. E.
Shaw MWPH Acquisition Holdings, L.L.C. or Madison Dearborn Capital Partners IV,
L.P., or any of their respective Affiliates has an equity investment (other
than WIND and its Subsidiaries).


 


Section 5.05.  Transactions Between Members
and the Company.  Except as
otherwise provided by Applicable Law, a Member may, but shall not be obligated
to, lend money to the Company, act as a surety or guarantor for the Company, or
transact other business with the Company, and has the same rights and
obligations when transacting business with the Company as a person or entity
who is not a Member, provided such transactions shall be entered into on terms
and conditions customary in arm’s length transactions between unrelated
parties.


 


Section 5.06.  Meeting of Members.  Any action permitted or required
to be taken by the Members pursuant to this Agreement may be considered at a
meeting of such Members held not less than ten days after notification thereof
shall have been given by the Managing Member to all Members.  Such notification may be given by the
Managing Member, in its discretion, at any time.  Any such notification shall state briefly the
purpose, time and place of the meeting. 
All such meetings shall be held within or outside the State of Delaware
at such reasonable place as 


 


21

















 


the Managing Member shall designate and during
normal business hours, and may be held by means of conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear each other.  The
Members may vote at any such meeting in person or by proxy.  Participation in such a meeting shall constitute
presence in person at such meeting.  No
notice of the time, place or purpose of any meeting need be given to any Member
who, either before or after the time of such meeting, waives such notice in
writing.  At any meeting of the Members,
the Managing Member, whether present in person or by proxy, shall, except as
otherwise provided by law or by this Agreement, constitute a quorum.  Whenever any Company action is to be taken by
vote of the Members at a meeting, it shall be authorized upon receiving the
affirmative vote of the Managing Member. 
For the avoidance of doubt, Members owning Series B Membership
Interests shall not be entitled, with respect to such Series B Membership
Interests, to vote on or approve or consent to any action permitted or required
to be taken or any determination required to be made by the Company or the
Members, including the right to vote on or approve or consent to any merger or
consolidation involving the Company, or any amendment to this Agreement, other
than pursuant to Section 15.09.


 


Section 5.07.  Action by Members Without
Meeting.  Any action permitted
or required to be taken by the Members pursuant to this Agreement may be
effected at a meeting of the Members or by consent in writing or by electronic
transmission of the Managing Member, with the same effect as if taken at a
meeting of the Members.


 


Section 5.08.  Limited Rights of
Members.  Other than as
provided in this Article 5 and Article 11 (and Article 8 in the
case of the Managing Member), no Member, in such Person’s capacity as a Member,
shall have the power or authority to act for or on behalf of, or to bind, the
Company, or to vote at any meeting of the Members.


 


ARTICLE 6


DISTRIBUTIONS


 


Section 6.01.  Distributions.  To the extent permitted by
Applicable Law and hereunder, distributions to Members may be declared by the
Managing Member out of funds legally available therefor in such amounts and on
such terms (including the payment dates of such distributions) as the Managing
Member shall determine using such record date as the Managing Member may
designate; such distribution shall be made to the Members as of the close of
business on such record date on a pro rata basis in accordance with each Member’s
Percentage Interest as of the close of business on such record date; provided, however, that
the Managing Member shall have the obligation to make distributions as set
forth in Sections 6.02 and 11.01; and provided  further that, notwithstanding any other provision herein to
the contrary, no distributions shall be made to any Member to the extent such
distribution would render the Company insolvent.  For purposes of the foregoing sentence,
insolvency means the inability of the Company to meet its payment obligations
when due.  Promptly following the
designation of a record date and the declaration of a distribution pursuant to
this Section 6.01, the Managing 


 


22

















 


Member shall give notice to each Member of the
record date, the amount and the terms of the distribution and the payment date
thereof.  In furtherance of the
foregoing, it is intended that the Managing Member shall, to the extent
permitted by Applicable Law and hereunder, have the right in its sole
discretion to make distributions to the Members pursuant to this Section 6.01
in such amounts as shall enable WIND to meet its obligations pursuant to the
Tax Receivable Agreement.


 


Section 6.02.  Distributions for Payment of
Income Tax.  On or about each
date (a “Tax Distribution Date”) that is five (5) Business
Days prior to the date on which estimated U.S. federal income tax payments are
required to be made by calendar year individual taxpayers and each due date for
the U.S. federal income tax return of an individual calendar year taxpayer
(without regard to extensions), the Company shall make a distribution to each
Member of cash in an amount equal to such Member’s Assumed Tax Liability, if
any (the “Tax Distributions”)  Distributions pursuant to this Section 6.02
shall be treated as an advance distribution under Section 6.01 and shall
be offset against future distributions that such holder of Membership Interests
would otherwise be entitled to receive pursuant to Section 6.01.  The calculation of Assumed Tax Liability
shall take into account the carry forward of prior losses and the character of
the items allocated (e.g., capital
or ordinary) and shall treat each distribution made pursuant to this Section 6.02
as a payment of taxes or estimated taxes. 
If on a Tax Distribution Date there are not sufficient funds on hand to
distribute to each Member the full amount of such Member’s Assumed Tax
Liability, distributions pursuant to this Section 6.02 shall be made to
the Members to the extent of the available funds in proportion to each Member’s
Assumed Tax Liability and the Company shall make future distributions as soon
as funds become available to pay the remaining portion of such Member’s Assumed
Tax Liability.  To the extent that, on
any Tax Distribution Date, a Member would otherwise be entitled to receive less
than its Percentage Interest of the aggregate Tax Distributions to be paid on
such date, the Tax Distributions to such Member shall be increased to ensure
that all distributions made pursuant to this Section 6.02 shall be made on
a pro rata basis in accordance with Percentage Interests.  In the event of any audit adjustment by a
taxing authority that affects the calculation of any Member’s Tax Distribution
for any taxable tear, or in the event the Company files an amended return which
has such effect, each Member’s Tax Distribution with respect to such year shall
be recalculated by giving effect to such audit adjustment or changes reflected
in the amended return, as applicable (and by including therein an additional
amount that, when distributed to the Members pursuant to this sentence, will be
sufficient to cover any interest or penalties incurred by any of Member or
former Member in connection therewith), and (x) any shortfall in the
amount of Tax Distributions the Members and Former Members received for the relevant
taxable years based on such audit recalculated Tax Distribution amount shall
promptly be distributed to such Members and Former Members, except to the
extent that distributions were made to such Members and former Members pursuant
to Section 6.01 in the relevant taxable years and (y) any excess in
the amount of Tax Distributions the Members received for the relevant taxable
years based audit recalculated Tax Distribution shall be applied against the
subsequent Tax Distributions due to such Member.


 


Section 6.03.  Limitations
on Distributions.  Notwithstanding
anything to the contrary contained in this Agreement, distributions to Members
shall be subject to the restrictions contained in §18-607 of the Delaware LLC
Act.


 


23

















 


Section 6.04.  Withholding.


 


(a)        Authority to Withhold; Treatment of
Withheld Amounts.  Each Member hereby
authorizes the Company and the Managing Member on behalf of the Company to
withhold and to pay over, or otherwise to pay, any withholding or other taxes
payable by the Company (pursuant to any provision of United States federal,
state or local or foreign law) with respect to such Member or as a result of
such Member’s participation in the Company; and if and to the extent that the
Company shall be required to withhold or pay any such withholding or other
taxes, such Member shall be deemed for all purposes of this Agreement to have
received a payment from the Company as of the time such withholding or other
tax is paid, which payment shall be deemed to be a distribution with respect to
such Member’s Membership Interest in the Company.


 


(b)        Indemnification.  Each Member shall, to the fullest extent
permitted by Applicable Law, indemnify and hold harmless the Managing Member
and each other Person (other than the Company) who is or who is deemed to be
the responsible withholding agent for United States federal, state or local or
foreign income tax purposes against all claims, liabilities and expenses of
whatever nature (other than any claims, liabilities and expenses in the nature
of penalties and accrued interest thereon that result from such Managing Member’s
or such other Person’s gross negligence, willful misconduct or fraud) relating
to the Company’s, the Managing Member’s or such other Person’s obligation to
withhold and to pay over, or otherwise to pay, any withholding or other taxes
payable by the Company or any of its Affiliates with respect to such Member or
as a result of such Member’s participation in the Company.


 


(c)        Refunds.  In the event that the Company receives a
refund of taxes previously withheld, the economic benefit of such refund shall
be apportioned among the Members in a manner reasonably determined by the
Managing Member to offset the prior operation of this Section 6.04 in
respect of such withheld taxes.


 


ARTICLE 7


ALLOCATIONS
AND TAX MATTERS


 


Section 7.01.  Capital Accounts and Adjusted
Capital Accounts.


 


(a)        Establishment of Capital Accounts.  There shall be established and maintained for
each Member on the books of the Company a capital account (a “Capital Account”). Each Member’s Capital Account (a) shall
be increased by (i) the amount of money contributed by such Member to the
Company, (ii) the Book Value of property contributed by that Member to the
Company (net of liabilities secured by the contributed property that the
Company is considered to assume or take subject to under Code Section 752)
and (iii) allocations to such Member of Net Profits and any other items of
income or gain allocated to such Member, and (b) shall be decreased by (i) the
amount of money distributed to such Member by the Company, (ii) the Book
Value of property distributed to such Member by the Company (net of liabilities
secured by the


 


24














 


distributed property that
such Member is considered to assume or take subject to under Code Section 752),
and (iii) allocations to such Member of Net Losses and any other items of
loss or deduction allocated to such Member. 
The Capital Accounts shall also be increased or decreased to reflect a
revaluation of Company property pursuant to paragraph (b) of the
definition of Book Value.  On the
transfer of all or part of a Member’s Membership Interests, the Capital Account
of the transferor that is attributable to the transferred Membership Interests
shall carryover to the transferee Member in accordance with the provisions of
Treas. Reg. § 1.704-1(b)(2)(iv)(1).  A
Member that has more than one class of Membership Interests shall have a single
Capital Account that reflects all such Membership Interests.


 


(b)                       Negative Balances; Interest.  None of the Members shall have any obligation
to the Company or to any other Member to restore any negative balance in its
Capital Account.  No interest shall be
paid by the Company on any Capital Contributions.


 


(c)                        No Withdrawal.  No Person shall be entitled to withdraw any
part of such Person’s Capital Contributions or Capital Account or to receive
any distribution from the Company, except as expressly provided herein.


 


Section 7.02.  Additional Capital
Contributions.  No Member
shall be required to make any additional Capital Contributions to the Company
or lend any funds to the Company, although any Member may agree with the
Managing Member and become obligated to do so.


 


Section 7.03.  Allocations of Net Profits and
Net Losses.  Subject to Section 7.04, Net
Profits or Net Losses for any Fiscal Year or other period shall be allocated to
the Members in proportion to their respective Percentage Interests.


 


Section 7.04.  Special Allocations.


 


(a)                        Notwithstanding any other provision of this Agreement, the following
allocations shall be made for each Fiscal Year or other period:


 


(i)                                Notwithstanding any other provision of this Section 7.04, if there
is a net decrease in Company Minimum Gain during any taxable period, each
Member shall be allocated items of Company income and gain for such period
(and, if necessary, subsequent periods) in the manner and amounts provided in
Treas. Reg. § 1.704-2(f), (g)(2) and (j). 
For purposes of this Section 7.04, each Member’s Capital Account
shall be determined and the allocation of income or gain required hereunder
shall be effected, prior to the application of any other allocations pursuant
to this Article 6 with respect to such taxable period.  This Section 7.04(a)(i) is intended
to comply with the partnership minimum gain chargeback requirement in Treas.
Reg. § 1.704-2(f) and shall be interpreted consistently therewith.


 


(ii)                             Notwithstanding the other provisions of this Section 7.04 (other
than 7.04(a)(i) above), if there is a net decrease in Member Nonrecourse
Debt Minimum Gain 


 


25

















 


during any taxable
period, any Member with a share of Member Nonrecourse Debt Minimum Gain at the
beginning of such taxable period shall be allocated items of Company income and
gain for such period (and, if necessary, subsequent periods) in the manner and
amounts provided in Treas. Reg. § 1.704-2(i)(4) and (j)(2).  For purposes of this Section 7.04, each
Member’s Adjusted Capital Account balance shall be determined, and the
allocation of income and gain required hereunder shall be effected, prior to
the application of any other allocations pursuant to this Section 7.04(a),
other than Section 7.04(a)(i) above, with respect to such taxable
period.  This Section 7.04(a)(ii) is
intended to comply with the Member nonrecourse debt minimum gain chargeback
requirement in Treas. Reg. § 1.704-2(i)(4) and shall be interpreted
consistently therewith.


 


(iii)                          Except as provided in Sections 7.04(a)(i) and 7.04(a)(ii) above,
in the event any Member unexpectedly receives any adjustments, allocations or
distributions described in Treas. Reg. § 1.704-1(b)(2)(ii)(d)(4), (5) or
(6), items of Company income and gain shall be specially allocated to such
Member in an amount and manner sufficient to eliminate, to the extent required
by such Treasury Regulations, the deficit balance, if any, in its Adjusted
Capital Account created by such adjustments, allocations or distributions as
quickly as possible unless such deficit balance is otherwise eliminated
pursuant to Sections 7.04(a)(i) and 7.04(a)(ii).


 


(iv)                         In the event any Member has a deficit balance in its Adjusted Capital
Account at the end of any taxable period, such Member shall be specially
allocated items of Company gross income and gain in the amount of such excess
as quickly as possible; provided, however, that
an allocation pursuant to this Section 7.04(a)(iv) shall be made only
if and to the extent that such Member would have a deficit balance in its
Adjusted Capital Account after all other allocations provided in this Section 7.04(a) have
been tentatively made as if this Section 7.04(a)(iv) were not in this
Agreement.


 


(v)                            Nonrecourse Deductions for any taxable period shall be allocated to the
Members in accordance with their Percentage Interests.


 


(vi)                         Member Nonrecourse Deductions for any taxable period shall be allocated
100% to the Member that bears the Economic Risk of Loss with respect to the  Member Nonrecourse Debt to which such Member Nonrecourse
Deductions are attributable in accordance with Treas. Reg. § 1.704-2(i).  If more than one Member bears the Economic
Risk of Loss with respect to a Member Nonrecourse Debt, Member Nonrecourse Deductions
attributable thereto shall be allocated between or among such Members in
accordance with the ratios in which they share such Economic Risk of Loss.


 


(b)                       Curative Allocation.
The allocations set forth in Section 7.04(a) (the “Regulatory Allocations”) are intended to comply with
certain requirements of the Treasury Regulations.  It is the intent of the Members that, to the
extent possible, all Regulatory Allocations shall be offset either with other
Regulatory Allocations or with special allocations of other items of Company 


 


26

















 


income, gain, loss, or
deduction pursuant to this Section 7.04(b).  Therefore, notwithstanding any other
provision of this Article 7 (other than the Regulatory Allocations), but
subject to the Code and the Treasury Regulations, the Managing Member shall
make such offsetting special allocations of Company income, gain, loss, or
deduction in whatever manner it determines appropriate so that, after such
offsetting allocations are made, each Member’s Capital Account balance is, to
the extent possible, equal to the Capital Account balance such Member would
have had if the Regulatory Allocations were not part of the Agreement.  In exercising its discretion under this Section 7.04(b),
the Managing Member shall take into account future Regulatory Allocations that,
although not yet made, are likely to offset other Regulatory Allocations
previously made.


 


(c)                        Notwithstanding any other provisions of this Section 7.04, if,
following the application of Sections 7.04(a) and 7.04(b), the Managing
Member determines in its sole discretion that the allocation provisions in
Sections 7.04(a) and 7.04(b) do not reflect the economic arrangements
among the Members, then Net Profits and Net Losses shall, following the
application of Sections 7.04(a) and 7.04(b), be allocated in the sole
discretion of the Managing Member in a manner that the Managing Member
concludes reflects the economic arrangements of the Members.


 


Section 7.05.  Allocation for Income Tax
Purposes.


 


(a)                        Except as provided in Section 7.05(b), 7.05(c) and 7.05(d),
each item of income, gain, loss and deduction of the Company for U.S. federal
income tax purposes shall be allocated among the Members in the same manner as
such items are allocated for book purposes under Sections 7.03 and 7.04.


 


(b)                       The Members recognize that there may be a difference between the Book
Value of a Company asset and the asset’s adjusted tax basis at the time of the
property’s contribution or revaluation pursuant to this Agreement.  In such a case, all items of tax
depreciation, cost recovery, amortization, and gain or loss with respect to
such asset shall be allocated among the Members to take into account the
disparities between the Book Values and the adjusted tax basis with respect to
such properties in accordance with the provisions of Sections 704(b) and
704(c) of the Code and the Treasury Regulations under those sections; provided, however, that any tax items not
required to be allocated under Sections 704(b) or 704(c) of the Code
shall be allocated in the same manner as such gain or loss would be allocated
for book purposes under Sections 7.03 and 7.04.


 


(c)                        All items of income, gain, loss, deduction and credit allocated to the
Members in accordance with the provisions hereof and basis allocations recognized
by the Company for federal income tax purposes shall be determined without
regard to any election under Section 754 of the Code that may be made by
the Company; provided, however, such
allocations, once made, shall be adjusted as necessary or appropriate to take
into account the adjustments permitted by Sections 734 and 743 of the Code.


 


27

















 


(d)                       If any deductions for depreciation, cost recovery or depletion are
recaptured as ordinary income upon the sale or other disposition of Company
properties, the ordinary income character of the gain from such sale or
disposition shall be allocated among the Members in the same ratio as the
deductions giving rise to such ordinary income character were allocated.


 


Section 7.06.  Other Allocation Rules.  All items of income, gain, loss,
deduction and credit allocable to Membership Interests that have been
transferred shall be allocated between the transferor and the transferee based
on the portion of the calendar year during which each was recognized as the
owner of such Membership Interests, without regard to the results of Company
operations during any particular portion of that calendar year and without
regard to whether cash distributions were made to the transferor or the
transferee during that calendar year; provided,
however, that this allocation must be made in accordance with a
method permissible under Code Section 706 and the regulations thereunder.


 


Section 7.07.  Certain Costs And
Expenses.  The Company shall (a) pay,
or cause to be paid, all costs, fees, operating expenses and other expenses of
the Company (including the costs, fees and expenses of attorneys, accountants
or other professionals and the compensation of all personnel providing services
to the Company) incurred in pursuing and conducting, or otherwise related to,
the business of the Company, and (b) in the sole discretion of the
Managing Member, reimburse the Managing Member for any out-of-pocket costs,
fees and expenses incurred by it in connection therewith.  To the extent that the Managing Member
reasonably determines in good faith that its expenses are related to the
business conducted by the Company and/or its subsidiaries (including any good
faith allocation of a portion of expenses that so relate to the business of the
Company and/or its subsidiaries and that also relate to other businesses or
activities of the Managing Member), then the Managing Member may cause the
Company to pay or bear all such expenses of the Managing Member, including,
costs of securities offerings not borne directly by Members, compensation and
meeting costs of its board of directors, cost of periodic reports to its
stockholders, litigation costs and damages arising from litigation, accounting
and legal costs and franchise taxes (which are not based on, or measured by,
income) provided that the Company shall not pay
or bear any income tax obligations of the Managing Member; provided
further that the payment of Tax Distributions to the Managing Member
shall not be prevented by the foregoing. 
Payments under this Section 7.07 are intended to constitute
reasonable compensation for past or present services and are not “distributions”
within the meaning of §18-607 of the Delaware LLC Act.


 


ARTICLE 8


MANAGEMENT
AND CONTROL OF BUSINESS


 


Section 8.01.  Management.  (a)   The
Members shall possess all rights and powers as provided in the Delaware LLC Act
and otherwise by Applicable Law.  Except
as otherwise expressly provided for herein and subject to the other provisions
of this Agreement, the Members 


 


28

















 


hereby consent to the exercise by the
Managing Member of all such powers and rights conferred on them by the Delaware
LLC Act with respect to the management and control of the Company.


 


(b)                       Other than with respect to the actions described in Section 11.01(a),
the Managing Member shall have the power and authority to delegate to one or
more other Persons the Managing Member’s rights and powers to manage and
control the business and affairs of the Company, including to delegate to
agents and employees of a Member or the Company (including any officers
thereof), and to delegate by a management agreement or another agreement with,
or otherwise to, other Persons.  The
Managing Member may authorize any Person (including any Member or officer of
the Company) to enter into and perform any document on behalf of the Company.


 


(c)                        The Managing Member shall have the power and authority to effectuate the
sale, lease, transfer, exchange or other disposition of any, all or
substantially all of the assets of the Company (including the exercise or grant
of any conversion, option, privilege or subscription right or any other right
available in connection with any assets at any time held by the Company) or the
merger, consolidation, reorganization or other combination of the Company with
or into another entity.


 


Section 8.02.  Certain Covenants.  The Managing Member shall not, without the
prior written consent of the Majority Holders, cause the merger of the Company
with or into WIND or any other Subsidiary thereof.


 


Section 8.03.  Investment Company Act.  The Managing Member shall use its best
efforts to insure that the Company shall not be subject to registration as an
investment company pursuant to the Investment Company Act.


 


ARTICLE 9


OFFICERS


 


Section 9.01.  Officers.  The officers of the Company shall
be a Chief Executive Officer, a Treasurer and a Secretary, and unless
determined otherwise by the Managing Member or the Chief Executive Officer,
each other officer of WIND shall also be an officer of the Company, with the
same title.  All officers shall be
appointed by the Managing Member (or by the Chief Executive Officer to the
extent the Managing Member delegates such authority to the Chief Executive
Officer) and shall hold office until their successors are appointed by the
Managing Member (or by the Chief Executive Officer to the extent the Managing
Member delegates such authority to the Chief Executive Officer).  Two or more offices may be held by the same
individual.  The officers of the Company
may be removed by the Managing Member (or by the Chief Executive Officer to the
extent the Managing Member delegates such authority to the Chief Executive
Officer) at any time for any reason or no reason.


 


29

















 


Section 9.02.  Other Officers and
Agents.  The Managing Member
may appoint such other officers and agents as it may deem necessary or
advisable, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Managing Member.


 


Section 9.03.  Chief Executive Officer.  The Chief Executive Officer shall
be the chief executive officer of the Company and shall have the general powers
and duties of supervision and management usually vested in the office of a
chief executive officer of a company.  He
or she shall preside at all meetings of Members if present thereat.  Except as the Managing Member shall authorize
the execution thereof in some other manner, he or she shall execute bonds,
mortgages and other contracts on behalf of the Company.


 


Section 9.04.  Treasurer.  The Treasurer shall have the
custody of Company funds and securities and shall keep full and accurate
account of receipts and disbursements in a book belonging to the Company.  He or she shall deposit all moneys and other
valuables in the name and to the credit of the Company in such depositaries as
may be designated by the Managing Member or the Chief Executive Officer.  The Treasurer shall disburse the funds of the
Company as may be ordered by the Managing Member or the Chief Executive
Officer, taking proper vouchers for such disbursements.  He or she shall render to the Managing Member
and the Chief Executive Officer whenever either of them may request it, an
account of all his or her transactions as Treasurer and of the financial
condition of the Company.  If required by
the Managing Member, the Treasurer shall give the Company a bond for the
faithful discharge of his duties in such amount and with such surety as the
Managing Member shall prescribe.


 


Section 9.05.  Secretary.  The Secretary shall give, or cause
to be given, notice of all meetings of Members and all other notices required
by Applicable Law or by this Agreement, and in case of his or her absence or
refusal or neglect so to do, any such notice may be given by any person
thereunto directed by the Chief Executive Officer, or by the Managing
Member.  He or she shall record all the
proceedings of the meetings of the Company in a book to be kept for that
purpose, and shall perform such other duties as may be assigned to him or her
by the Managing Member or by the Chief Executive Officer.


 


Section 9.06.  Other Officers.  Other officers, if any, shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the Managing Member or by the Chief Executive Officer.


 


ARTICLE 10


TRANSFERS
OF INTERESTS; ADMITTANCE OF NEW MEMBERS


 


Section 10.01.  Transfer of Membership
Interests.  Other than as
provided for below in this Section 10.01 or in Section 10.02, no
Member may sell, assign, transfer, grant a participation in, pledge,
hypothecate, encumber or otherwise dispose of (such transaction being herein 


 


30

















 


collectively called a “Transfer”)
all or any portion of its Membership Interest except with the written consent
of the Managing Member, which may be granted or withheld in its sole
discretion.  Without the consent of the
Managing Member (but otherwise in compliance with Sections 9.01 and 9.02), a
Member may, at any time, (a) Transfer any portion of such Member’s
Membership Interest pursuant to the Exchange Agreement, and (b) Transfer
any portion of such Member’s Membership Interest to a Permitted Transferee of
such Member.  Any Transfer of Series B
Membership Interests to a Permitted Transferee of such Member must be
accompanied by the transfer of an equal number of corresponding Class B
Shares to such Permitted Transferee.  Any
purported Transfer of all or a portion of a Member’s Membership Interest not
complying with this Section 10.01 shall be void ab initio and shall not create any obligation on the part of
the Company or the other Members to recognize that purported Transfer or to
recognize the Person to which the Transfer purportedly was made as a
Member.  A Person acquiring a Member’s
Membership Interest pursuant to this Section 10.01 shall not be admitted
as a substituted or additional Member except in accordance with the
requirements of Section 10.04, but such Person shall, to the extent of the
Membership Interest transferred to it, be entitled to such Member’s (i) share
of distributions, (ii) share of profits and losses, including Net Profits
and Net Losses, and (iii) Capital Account in accordance with Section 7.01(a).  Notwithstanding anything in this Section 10.01
or elsewhere in this Agreement to the contrary, if a Member Transfers all or
any portion of its Membership Interest after the designation of a record date
and declaration of a distribution pursuant to Section 6.01 and before the
payment date of such distribution, the transferring Member (and not the Person
acquiring all or any portion of its Membership Interest) shall be entitled to
receive such distribution in respect of such transferred Membership Interest.


 


Section 10.02.  Transfer of WIND’s
Interest.  WIND may not
Transfer all or any portion of its Membership Interest held in the form of Series A
Membership Interests at any time.


 


Section 10.03.  Lock Up.  The Members (other than WIND and any Member
party to an underwriting or lock-up agreement with the IPO Underwriters) may
not, from the date hereof and until 180 days after the date of the IPO
Underwriting Agreement (as such 180-day period may be extended pursuant to Section 5(k) of
the IPO Underwriting Agreement), offer, sell, contract to sell, pledge,
Transfer or otherwise dispose of, directly or indirectly, any Class A
Shares, Class B Shares or Series B Membership Interests issued
pursuant to the Merger Agreement, enter into a transaction which would have the
same effect, or enter into any swap, hedge or other arrangement that transfers,
in whole or in part, any of the economic consequences of ownership of such Class A
Shares, Class B Shares or Series B Membership Interests, whether any
such aforementioned transaction is to be settled by delivery of such Class A
Shares, Class B Shares or Series B Membership Interests or such other
securities, in cash or otherwise, or publicly disclose the intention to make
any such offer, sale, pledge or disposition, or to enter into any such
transaction, swap, hedge or other arrangement, without, in each case, the prior
written consent of WIND (which consent may be withheld in its sole discretion).


 


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Section 10.04.  Recognition of Transfer;
Substituted and Additional Members.  (a) No
direct or indirect Transfer of all or any portion of a Member’s Membership
Interest may be made, and no purchaser, assignee, transferee or other recipient
of all or any part of such Membership Interest shall be admitted to the Company
as a substituted or additional Member hereunder, unless:


 


(i)                                the provisions of Section 10.01 or Section 10.02, as
applicable, shall have been complied with;


 


(ii)                             in the case of a proposed substituted or additional Member (other than a Permitted
Transferee described in clauses (i) through (iv) of the definition
thereof) that is (i) a competitor or potential
competitor of WIND, the Company or their Subsidiaries, (ii) a Person with whom
the WIND, the Company or their Subsidiaries has had or is expected to have a
material commercial or financial relationship or (iii) likely to subject
WIND, the Company or their Subsidiaries to any material legal or regulatory
requirement or obligation, or materially increase the burden thereof, in each
case as determined by the Managing Member in its sole discretion, the admission
of the purchaser, assignee, transferee or other recipient as a substituted or
additional Member shall have been approved by the Managing Member;


 


(iii)                          the Managing Member shall have been furnished with the documents
effecting such Transfer, in form and substance reasonably satisfactory to the
Managing Member, executed and acknowledged by both the seller, assignor or
transferor and the purchaser, assignee, transferee or other recipient, and the
Managing Member shall have executed (and the Managing Member hereby agrees to execute) any other documents on behalf of itself and the Members required to
effect the Transfer;


 


(iv)                         the provisions of Section 10.04(b) shall have been complied
with;


 


(v)                            the Managing Member shall be reasonably satisfied that such Transfer
will not (A) result in a violation of the Securities Act or any other
Applicable Law; or (B) cause an assignment under the Investment Company
Act;


 


(vi)                         such Transfer would not cause the Company to lose its status as a
partnership for federal income tax purposes and, without limiting the
generality of the foregoing, such Transfer shall not be effected on or through
an “established securities market” or a “secondary market or the substantial
equivalent thereof,” as such terms are used in Section 1.7704-1 of the
Treasury Regulations;


 


(vii)                      the Managing Member shall have received the opinion of counsel, if any,
required by Section 10.04(c) in connection with such Transfer; and


 


32

















 


(viii)                   all necessary instruments reflecting such Transfer and/or admission
shall have been filed in each jurisdiction in which such filing is necessary in
order to qualify the Company to conduct business or to preserve the limited
liability of the Members.


 


(b)                       Each substituted Member and additional Member shall be bound by all of
the provisions of this Agreement.  Each
substituted Member and additional Member, as a condition to its admission as a
Member, shall execute and acknowledge such instruments (including a counterpart
of this Agreement or a joinder agreement in customary form), in form and substance reasonably satisfactory to the Managing Member,
as the Managing Member reasonably deems necessary or desirable to effectuate
such admission and to confirm the agreement of such substituted or additional
Member to be bound by all the terms and provisions of this Agreement with
respect to the Membership Interest acquired by such substituted or additional
Member.  The admission of a substituted
or additional Member shall not require the consent of any Member other than the
Managing Member (if and to the extent such consent of the Managing Member is
expressly required by this Article 10). 
As promptly as practicable after the admission of a substituted or
additional Member, the books and records of the Company and Exhibit A
shall be changed to reflect such admission.


 


(c)                        As a further condition to any Transfer of all or any part of a Member’s
Membership Interest, the Managing Member may, in its discretion, require a
written opinion of counsel to the transferring Member reasonably satisfactory
to the Managing Member, obtained at the sole expense of the transferring
Member, reasonably satisfactory in form and substance to the Managing Member,
as to such matters as are customary and appropriate in transactions of this
type, including, without limitation (or, in the case of any Transfer made to a
Permitted Transferee, limited to an opinion) to the effect that such Transfer
will not result in a violation of the registration or other requirements of the
Securities Act or any other federal or state securities laws.  No such opinion, however, shall be required
in connection with a Transfer made pursuant to the Exchange Agreement.


 


Section 10.05.  Expense of Transfer;
Indemnification.  All
reasonable costs and expenses incurred by the Managing Member and the Company
in connection with any Transfer of a Member’s Membership Interest, including
any filing and recording costs and the reasonable fees and disbursements of
counsel for the Company, shall be paid by the transferring Member.  In addition, the transferring Member hereby
indemnifies the Managing Member and the Company against any losses, claims,
damages or liabilities to which the Managing Member, the Company, or any of
their Affiliates may become subject arising out of or based upon any false
representation or warranty made by, or breach or failure to comply with any covenant
or agreement of, such transferring Member or such transferee in connection with
such Transfer.


 


Section 10.06.  Exchange Agreement.  In connection with any Transfer of
any portion of a Member’s Membership Interest pursuant to the Exchange Agreement,
the Managing Member shall cause the Company to take any action as may be
required under the Exchange Agreement or requested by any party thereto to
effect such Transfer promptly.


 


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ARTICLE 11


DISSOLUTION
AND TERMINATION


 


Section 11.01.  Dissolution.


 


(a)                        The Company shall be dissolved and its affairs wound up upon the
occurrence of any of the following events:


 


(i)                                an election by the Managing Member to dissolve, wind up or liquidate the
Company;


 


(ii)                             the sale, disposition or transfer of all or substantially all of the
assets of the Company;


 


(iii)                          the entry of a decree of dissolution of the Company under §18-802 of the
Delaware LLC Act; or


 


(iv)                         at any time there are no members of the Company, unless the Company is
continued in accordance with the Delaware LLC Act.


 


(b)                       In the event of a dissolution pursuant to Section 11.01(a), the
relative economic rights of each class of Membership Interests immediately
prior to such dissolution shall be preserved to the greatest extent practicable
with respect to distributions made to Members pursuant to Section 11.01(f) in
connection with such dissolution, taking into consideration tax and other legal
constraints that may adversely affect one or more parties to such dissolution
and subject to compliance with Applicable Laws.


 


(c)                        Dissolution of the Company shall be effective on the day on which the
event occurs giving rise to the dissolution, but the Company will not terminate
until the assets of the Company have been distributed as provided in this Section 11.01
and any filings required by the Delaware LLC Act have been made.


 


(d)                       Upon dissolution, the Company shall be liquidated and wound up in an
orderly manner in accordance with the provisions of this Section 11.01.  The Managing Member or a Person selected by
the Managing Member to act as liquidating trustee, shall wind up the affairs of
the Company pursuant to this Agreement. 
The Managing Member or liquidating trustee, as applicable, is
authorized, subject to the Delaware LLC Act, to sell, exchange or otherwise
dispose of the assets of the Company, or to distribute Company assets in kind,
as the Managing Member or liquidating trustee shall determine to be in the best
interests of the Members.  The reasonable
out-of-pocket expenses incurred by the Managing Member or liquidating trustee
in connection with winding up the Company (including legal and accounting fees
and expenses), all other liabilities or losses of the Company or the Managing
Member or liquidating trustee incurred in accordance with the terms of this
Agreement, and reasonable compensation for the services of the liquidating
trustee shall be borne by the Company. 
Except as otherwise required 


 


34

















 


by law and except in connection with
any gross negligence or willful misconduct of the Managing Member or
liquidating trustee, the Managing Member or
liquidating trustee shall not be liable to any Member or the Company for any
loss attributable to any act or omission of the Managing Member or liquidating
trustee taken in good faith in connection with the winding up of the Company
and the distribution of Company assets. 
The Managing Member or liquidating trustee may consult with counsel and
accountants with respect to winding up the Company and distributing its assets
and shall be justified in acting or omitting to act in accordance with the
advice or opinion of such counsel or accountants, provided that the Managing
Member or liquidating trustee shall have used reasonable care in selecting such
counsel or accountants.


 


(e)                        Upon dissolution of the Company, the expenses of liquidation (including
compensation for the services of the liquidating trustee and legal and
accounting fees and expenses) and the Company’s liabilities and obligations to
creditors shall be paid, or reasonable provisions shall be made for payment
thereof, in accordance with Applicable Law, from cash on hand or from the
liquidation of Company properties.


 


(f)                          A reasonable time shall be allowed for the orderly winding up of the
business and affairs of the Company and the liquidation of its assets pursuant
to this Section 11.01 to minimize any losses otherwise attendant upon such
winding up.  Notwithstanding the
generality of the foregoing, within 180 calendar days after the effective date
of dissolution of the Company, the assets of the Company shall be distributed
in the following manner and order: (i) all debts and obligations of the
Company, if any, shall first be paid, discharged or provided for by adequate
reserves; and (ii) the balance shall be distributed to the Members in
accordance with Section 6.01.


 


(g)                       The Managing Member or liquidating trustee shall not be personally
liable for the return of Capital Contributions or any portion thereof to the
Members (it being understood and agreed that any such return shall be made
solely from Company assets).


 


Section 11.02.  Termination.  The Company shall terminate when
all of the assets of the Company, after payment or reasonable provision for the
payment of all debts, liabilities and obligations of the Company, shall have
been distributed in the manner provided for in this Article 11 and the
Certificate shall have been canceled in the manner required by the Delaware LLC
Act.


 


ARTICLE 12


EXCULPATION
AND INDEMNIFICATION


 


Section 12.01.  Exculpation.  To the fullest extent permitted by Applicable
Law, and except as otherwise expressly provided herein, no Indemnitee shall be
liable to the Company or any other Indemnitee for any Losses, which at any time
may be imposed on, incurred by, or asserted against, the Company or any other
Indemnitee as a result of or arising out of the


 


35














 


activities of the Indemnitee on behalf of
the Company to the extent within the scope of the authority reasonably believed
by such Indemnitee to be conferred on such Indemnitee, except to the extent
such Losses arise out of (i) the Indemnitee’s failure to act in good faith
and in a manner such Indemnitee believed to be in, or not opposed to, the best
interests of the Company, and, with respect to any criminal proceeding, the
Indemnitee’s not having any reasonable cause to believe such conduct was
unlawful, (ii) the Indemnitee’s material breach of this Agreement or any
other Transaction Document, or (iii) the Indemnitee’s gross negligence or
willful misconduct.


 


Section 12.02.  Indemnification.  To the fullest extent permitted by Applicable
Law, each of (a) the Members, the Managing Member and their respective
Affiliates, (b) the stockholders, members, managers, directors, officers,
partners, employees and agents of the Members and the Managing Member and their
respective Affiliates, and (c) the officers of the Company (each, an “Indemnitee”) shall be indemnified and held harmless by the
Company from and against any and all losses, claims, damages, liabilities,
expenses (including legal fees and expenses), judgments, fines, settlements and
other amounts arising from any and all claims, demands, actions, suits or
proceedings, civil, criminal, administrative or investigative (collectively, “Losses”), which at any time may be imposed on, incurred by,
or asserted against, the Indemnitee as a
result of or arising out of this Agreement, the Company, its assets, business
or affairs or
the activities of the Indemnitee on
behalf of the Company to the extent within the scope of the authority
reasonably believed to be conferred on such Indemnitee; provided,
however, that the Indemnitee shall not be entitled to
indemnification for any Losses to the extent such Losses arise out of (i) the
Indemnitee’s failure to act in good faith and
in a manner such Indemnitee believed to be in, or not opposed to, the best
interests of the Company, and, with respect to any criminal proceeding, the
Indemnitee’s not having any reasonable cause to believe such conduct was
unlawful, (ii) the Indemnitee’s material breach of this Agreement or any other Transaction
Document, or (iii) the Indemnitee’s
gross negligence or willful misconduct. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere, or its equivalent, shall not, of itself, create a presumption that
the Indemnitee acted in a manner specified in clause (i), (ii) or (iii) above.
Any indemnification pursuant to this Article 12 shall be made only out of
the assets of the Company and no Member shall have any personal liability on
account thereof.


 


Section 12.03.  Expenses.  Expenses (including reasonable
legal fees and expenses) incurred by an Indemnitee in defending any claim,
demand, action, suit or proceeding described in Section 12.02 shall, from
time to time, be advanced by the Company prior to the final disposition of such
claim, demand, action, suit or proceeding, upon receipt by the Company of an
undertaking by or on behalf of the Indemnitee to repay such amount if it shall
be determined that the Indemnitee is not entitled to be indemnified as provided
in this Article 12.


 


Section 12.04.  Non-Exclusivity.  The indemnification and
advancement of expenses set forth in this Article 12 shall not be
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any statute, the Delaware LLC
Act, this Agreement, any other agreement, a policy of insurance or
otherwise.  The 


 


36

















 


indemnification and advancement of expenses
set forth in this Article 12 shall continue as to an Indemnitee who has
ceased to be a named Indemnitee and shall inure to the benefit of the heirs,
executors, administrators, successors and permitted assigns of such a Person.


 


Section 12.05.  Insurance.  The Company may purchase and
maintain insurance on behalf of the Indemnitees against any liability asserted
against them and incurred by them in such capacity, or arising out of their
status as Indemnitees, whether or not the Company would have the power to
indemnify them against such liability under this Article 12.


 


ARTICLE 13


ACCOUNTING
AND RECORDS; TAX MATTERS


 


Section 13.01.  Accounting and Records.  The books and records of the
Company shall be made and maintained, and the financial position and the
results of its operations recorded, at the expense of the Company, in
accordance with such method of accounting as is determined by the Managing
Member.  The books and records of the
Company shall reflect all Company transactions and shall be made and maintained
in a manner that is appropriate and adequate for the Company’s business.


 


Section 13.02.  Tax Returns.  The
Company shall prepare and timely file all U.S. federal, state and local and
foreign tax returns required to be filed by the Company.  Unless otherwise agreed by the Managing
Member, any income tax return of the Company shall be prepared by an
independent public accounting firm of recognized national standing selected by
the Managing Member.  Each Member shall
furnish to the Company all pertinent information in its possession relating to
the Company’s operations that is necessary to enable the Company’s tax returns
to be timely prepared and filed.  The
Company shall deliver to each Member as soon as practicable, but in any event
within 180 days, after the end of the applicable Fiscal Year, a Schedule K-1
together with such additional information as may be required by the Members in
order to file their individual returns reflecting the Company’s operations. The
Company shall bear the costs of the preparation and filing of its tax returns.


 


Section 13.03.  Tax Partnership.  Neither the Company nor any Member
shall make an election for the Company to be excluded from the application of
the provisions of subchapter K of chapter 1 of subtitle A of the Code or any
similar provisions of applicable state law or to be classified as other than a
partnership pursuant to Treas. Reg. § 301.7701-3.


 


Section 13.04.  Tax Elections. The
Managing Member shall, on behalf of the Company, make the following elections
on the appropriate forms or tax returns:


 


(a)                       to adopt the calendar year as the Company’s taxable year or Fiscal Year,
if permitted under the Code;


 


37

















 


(b)                       to adopt the accrual method of accounting and to keep the Company’s
books and records on the U.S. federal income tax method;


 


(c)                        to elect to amortize the organizational expenses of the Company as
permitted by Code Section 709(b);


 


(d)                       as required by the Tax Receivable Agreement, to make an election under
Code Section 754 with respect to the Company (and to cause each Subsidiary
Partnership to make such an election under Code Section 754), which
elections shall be in effect for each Fiscal Year in which any Sponsor
Transfers Series B Membership Interests pursuant to the Exchange
Agreement; and


 


(e)                        any other election the Managing may deem appropriate and in the best
interests of the Members.


 


Section 13.05.  Tax Matters Member.


 


(a)                       The Managing Member shall be the “tax matters partner” of the Company as
defined in Code Section 6231(a)(7) (the “Tax Matters
Member”). The Tax
Matters Member shall take such action as may be necessary to cause to the
extent possible each other Member to become a notice partner within the meaning
of Code Section 6231 (a)(8).  The
Tax Matters Member shall inform each other Member of all significant matters
that may come to its attention in its capacity as Tax Matters Member by giving
notice thereof on or before the fifth day after becoming aware thereof and,
within that time, shall forward to each other Member copies of all significant
written communications it may receive in that capacity.


 


(b)                       Any cost or expense incurred by the Tax Matters Member in connection
with its duties, including the preparation for or pursuance of administrative
or judicial proceedings, shall be paid by the Company.


 


(c)                        Any Member that enters into a settlement agreement with respect to any
partnership item (within the meaning of Code Section 6231(a)(3)) shall
notify the other Members of such settlement agreement and its terms within 90
days from the date of the settlement.


 


(d)                       No Member shall file a request pursuant to Code Section 6227 for an
administrative adjustment of partnership items for any taxable year without
first notifying the other Members. If the Managing Member consents to the
requested adjustment, the Tax Matters Member shall file the request for the
administrative adjustment on behalf of the Members.  If such consent is not obtained within 30
days from such notice, or within the period required to timely file the request
for administrative adjustment, if shorter, any Member, including the Tax
Matters Member, may file a request for administrative adjustment on its own
behalf.  Any Member intending to file a
petition under Code Sections 6226 or 6228 or other Code Section with
respect to any item involving the Company shall notify the other Members of
such intention and the nature of the contemplated proceeding. In the case where
the Tax Matters Member is the Member intending to 


 


38

















 


file such petition on
behalf of the Company, such notice shall be given within a reasonable period of
time to allow the other Members to participate in the choosing of the forum in
which such petition will be filed.


 


(e)                        If any Member intends to file a notice of inconsistent treatment under
Code Section 6222(b), such Member shall give reasonable notice under the
circumstances to the other Members of such intent and the manner in which the
Member’s intended treatment of an item is (or may be) inconsistent with
treatment of that item by the other Members.


 


ARTICLE 14


ARBITRATION


 


The Members shall attempt in good faith to resolve
all claims, disputes and other disagreements arising hereunder or under the
Exchange Agreement (each, a “Dispute”) by
negotiation.  If a Dispute cannot be
resolved in such manner, such Dispute shall, at the request of any party, after
providing written notice to the other parties to the Dispute, be submitted to
arbitration in The City of New York in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in
effect.  The proceeding shall be
confidential.  The party initially
asserting the Dispute (the “Initiating Party”)
shall notify the other party (the “Responding Party”)
of the name and address of the arbitrator chosen by the Initiating Party and
shall specifically describe the Dispute in issue to be submitted to
arbitration.  Within 30 days of receipt
of such notification, the Responding Party shall notify the Initiating Party of
its answer to the Dispute, any counterclaim which it wishes to assert in the
arbitration and the name and address of the arbitrator chosen by the Responding
Party.  If the Responding Party does not appoint an arbitrator
during such 30-day period, appointment of the
second arbitrator shall be made by the American Arbitration Association upon
request of the Initiating Party.  The two
arbitrators so chosen or appointed shall choose a third arbitrator, who shall
serve as president of the panel of arbitrators (the “Panel”)
thus composed.  If the two arbitrators so
chosen or appointed fail to agree upon the choice of a third arbitrator within
30 days from the appointment of the second arbitrator, the third arbitrator
will be appointed by the American Arbitration Association upon the request of the
arbitrators or either of the parties.  In
all cases, the arbitrators must be persons who are knowledgeable about, and
have recognized ability and experience in dealing with, the subject matter of
the Dispute.  The arbitrators will act by
majority decision.  Any decision of the
arbitrators shall (a) be rendered in writing and shall bear the signatures
of at least two arbitrators, and (b) identify the members of the
Panel.  Absent fraud or manifest error, any such decision
of the Panel shall be final, conclusive
and binding on the parties to the arbitration and enforceable by a court of
competent jurisdiction.  The expenses of
the arbitration shall be borne equally by the parties to the arbitration; provided, however, that
each party shall pay for and bear the costs of its own experts, evidence and
legal counsel, unless the arbitrator rules otherwise in the
arbitration.  The parties shall complete
all discovery within 30 days after the Panel is composed, shall complete the
presentation of evidence to the Panel within 15 days after the completion of
discovery, and a final decision with respect to the matter submitted to 


 


39

















 


arbitration shall be rendered within 15 days after
the completion of presentation of evidence. 
The parties shall cause to be kept a record of the proceedings of any
matter submitted to arbitration hereunder.


 


ARTICLE 15


MISCELLANEOUS
PROVISIONS


 


Section 15.01.  Entire Agreement.  This Agreement and the other
Transaction Documents constitute the entire agreement and understanding by the
Members and the Company with respect to the subject matter hereof and supersede
any prior agreement or understanding by the Members with respect to such
subject matter.


 


Section 15.02.  Binding on Successors.  This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and their respective
successors and permitted assigns, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.


 


Section 15.03.  Managing Member’s
Business.  WIND, as the sole
Managing Member of the Company, hereby agrees that it (a) will not conduct
any business other than the management and ownership of the Company and its
Subsidiaries and (b) shall not own any other assets (other than on a
temporary basis).  Notwithstanding the
foregoing, WIND may take such actions and own such assets as are necessary or
appropriate to comply with Applicable Law, including compliance with its
responsibilities as a public company under the U.S. federal securities laws,
incur indebtedness and take any other action or own any other asset that the
board of directors of WIND determines in good faith is in the best interest of
the Company.


 


Section 15.04.  Debt or Equity Financing.  WIND shall not dividend or distribute to its
stockholders all or any portion of the proceeds of any debt or equity financing
(including a financing involving any equity-linked securities); provided, however, that WIND may use the proceeds of a
financing involving solely the issuance of common stock of WIND to repurchase
other common stock held by a stockholder of WIND as long as such repurchase is
done at a price that does not exceed the gross price per share of common stock
issued in such financing.


 


Section 15.05.  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 Delaware without regard to conflicts of law
principles thereof.


 


Section 15.06.  Headings.  All headings herein are inserted
only for convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this Agreement.


 


40

















 


Section 15.07.  Severability.  If any provision of this
Agreement, or the application of such provision to any Person or circumstance,
shall be held illegal, invalid or unenforceable, the remainder of this
Agreement or the application of such provision to other persons or
circumstances shall not be affected thereby.


 


Section 15.08.  Notices.  All notices, requests, consents
and other communications hereunder (each, a “Notice”)
to the Company or any Member 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 Section 15.08) or nationally recognized overnight
courier, addressed to such Member at the address or facsimile number set forth
in Exhibit A hereto, or below with respect to the Company, or such other
address or facsimile number as may hereafter be designated in writing by such
party to the other parties:


 


If to the Company, to:


 


First Wind Holdings, LLC


c/o 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
the Company) 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 Notice shall be deemed received on the date
sent to the recipient thereof in accordance with this Section 15.08, 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.


 


Section 15.09.  Amendments.  This Agreement may be amended
(including, for purposes of this Section 15.09, any amendment effected
directly or indirectly by way of a merger or consolidation of the Company) or
waived, in whole or in part, by the Managing Member; provided,
however, that (i) to the extent any
amendment or waiver, including any amendment or waiver of the Exhibits attached
hereto, would disproportionately and adversely affect the rights of any Member
holding Series B Membership Interests compared with the rights of any
other 


 


41

















 


Member holding Series B Membership
Interests, such amendment or waiver may only be made by the Managing Member
upon the prior written consent of such disproportionately and adversely
affected Member, (ii) to the extent any amendment or waiver, including any
amendment or waiver of the Exhibits attached hereto, would disproportionately
and adversely affect the rights of holders of Series B Membership
Interests compared with the rights of holders of Series A Membership
Interests or any other series or class of Membership Interest, such amendment
or waiver may only be made by the Managing Member upon the prior written
consent of the Majority Holders, and (iii) the following provisions may
not be amended by the Managing Member in any manner adverse to a Member holding
Series B Membership Interests without the prior written consent of the
Majority Holders:  Section 6.01, Section 6.02,
Article 7, Section 8.02, Section 10.04(a)(vi), Section 13.02,
Section 13.03, Section 13.04(d) and Section 15.04.


 


Section 15.10.  Consent to Jurisdiction.  Subject to Article 14, 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 Section 15.08.  Each of
the parties irrevocably waives, to the fullest extent permitted by law, any
objection or 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 Section 15.08) in any suit, action or proceeding
brought in such courts.


 


Section 15.11.  WAIVER OF JURY TRIAL.  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]


 


42

















 


IN WITNESS WHEREOF, WIND, the Company and the Members named below have duly executed this
Agreement as of the date first written above.


 


	
   

  	
  FIRST WIND HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  FIRST WIND HOLDINGS, LLC

  
	
   

  	
   

  
	
   

  	
  By:

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

  AS SPONSOR EXERCISING REQUIRED SPONSOR APPROVAL UNDER THE PRIOR LLC AGREEMENT

  
	
   

  	
   

  	
  By:

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

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  MADISON DEARBORN
  CAPITAL PARTNERS IV, L.P.,

  AS SPONSOR EXERCISING REQUIRED SPONSOR APPROVAL UNDER THE PRIOR LLC AGREEMENT

  
	
   

  	
   

  	
  By:

  	
  MADISON DEARBORN PARTNERS IV, L.P.

  
	
   

  	
   

  	
  Its:

  	
  GENERAL PARTNER

  
	
   

  	
   

  	
  By:

  	
  MADISON DEARBORN CAPITAL PARTNERS, LLC

  
	
   

  	
   

  	
  Its:

  	
  GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Name: 

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  as Member exercising Special B Approval under the
  Prior LLC Agreement

  
						



 

















 


	
   

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

  as Member

  
	
   

  	
  By:

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  MADISON DEARBORN CAPITAL PARTNERS IV, L.P.,

  
	
   

  	
        as Member

  
	
   

  	
  By:

  	
  MADISON DEARBORN PARTNERS IV, L.P.

  
	
   

  	
  Its:

  	
  GENERAL PARTNER

  
	
   

  	
  By:

  	
  MADISON DEARBORN CAPITAL PARTNERS, LLC

  
	
   

  	
  Its:

  	
  GENERAL PARTNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [Paul Gaynor]

  
	
   

  	
   

  	
  Title:

  	
  Member

  



 


2

















 


	
   

  	
  [NAME]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


3

















 


Exhibit A


 


	
  Name and Address of Member

  	
   

  	
  Number of

  Series A

  Membership

  Interests

  	
   

  	
  Number of

  Series B

  Membership

  Interests

  	
   

  	
  Percentage

  Interest

  	
   

  
	
  First Wind Holdings
  Inc.

  179 Lincoln Street,
  Suite 500

  Boston, MA 02111

  Telephone: 617-960-2888

  Facsimile: 617-960-2889

  Attention: General
  Counsel

   

  	
   

  	
   

  	
   

  	
  N/A

  	
   

  	
   

  	
   

  
	
  D. E. Shaw MWP
  Acquisition Holdings, L.L.C.

  [Address]

  Telephone:

  Facsimile:

  Attention:

   

  	
   

  	
  N/A

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Madison Dearborn
  Capital Partners IV, L.P.

  [Address]

  Telephone:

  Facsimile:

  Attention:

   

  	
   

  	
  N/A

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Name]

  [Address]

  Telephone:

  Facsimile:

  Attention:

   

  	
   

  	
  N/A

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Name]

  [Address]

  Telephone:

  Facsimile:

  Attention:

   

  	
   

  	
  N/A

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  100

  	
  %

  



 

















 


Annex I




 





 


AGREEMENT
AND PLAN OF MERGER


 


among


 


FIRST WIND HOLDINGS INC.,


 


FIRST WIND HOLDINGS, LLC


 


and


 


FIRST WIND MERGER, LLC


 


Dated as of
          , 2010