Exhibit 10.35


 


[Exhibit 10.35
to Form S-1]


 


Exhibit F


to Merger Agreement


 




 


 





NOMINATING AND VOTING AGREEMENT


 


among


 


FIRST WIND HOLDINGS INC.


 


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


 


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


 


and


 


MADISON DEARBORN CAPITAL PARTNERS IV, L.P.


 


Dated as of        ,
2010


 




 





 

















 


NOMINATING AND VOTING AGREEMENT


 


among


 


FIRST WIND HOLDINGS INC.


 


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


 


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


 


and


 


MADISON DEARBORN CAPITAL PARTNERS IV, L.P.


 


NOMINATING
AND VOTING AGREEMENT, dated as of           ,
2010 (this “Agreement”), among
First Wind Holdings Inc., a Delaware corporation (“WIND”),
D. E. Shaw MWP Acquisition Holdings, L.L.C., a Delaware limited liability
company (“MWP”), D. E. Shaw MWPH Acquisition
Holdings, L.L.C., a Delaware limited liability company (“MWPH”,
and together with MWP, “D. E. Shaw”),
and Madison Dearborn Capital Partners IV, L.P., a Delaware limited partnership
(“Madison Dearborn”).


 


WHEREAS,
the Board of Directors of WIND has determined that it is in WIND’s best
interests to effect an initial public offering (“IPO”); and


 


WHEREAS,
in connection with the IPO, WIND, D. E. Shaw and Madison Dearborn desire to
enter into this Agreement setting forth certain rights and obligations with
respect to the shares of Common Stock of WIND owned by D. E. Shaw and Madison
Dearborn;


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:


 


Section 1.  Definitions.  As used
in this Agreement, the following terms shall have the meanings ascribed to them
below:


 


(a)  Affiliate:  a Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Person specified.


 


(b)  Board of
Directors:  the Board of Directors of
WIND.


 


(c)  Bylaws:  the Amended and Restated Bylaws of WIND, as
may be amended from time to time.


 

















 


(d)  Certificate of Incorporation:  the Amended and Restated Certificate of
Incorporation of WIND, as may be amended from time to time.


 


(e)  Common Stock:  the class A common stock, par value $0.001
per share, and class B common stock, par value $0.001 per share, of WIND.


 


(f)  Person:  an individual, corporation, partnership,
limited liability company, joint venture, association, trust or other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.


 


(g)  Specified Stockholder:  either of D. E. Shaw (with MWP and MWPH exercising
the D. E. Shaw rights jointly) or Madison Dearborn.


 


(h)  Voting Securities: collectively, shares of
Common Stock, all other shares of capital stock of WIND which are voting shares
and all other voting securities of WIND.


 


Section 2.  Board Representation.


 


(a)  With respect to each Specified
Stockholder, until such time as such Specified Stockholder and its Affiliates
no longer beneficially own in the aggregate at least 20% of the total number of
shares of Common Stock of WIND outstanding at such time, WIND and the Board of
Directors shall, acting through the Nominating and Corporate Governance
Committee of the Board of Directors, include in the slate of nominees
recommended to stockholders of WIND (the “Stockholders”)
for election as directors at any annual or special meeting of the Stockholders
at which directors of WIND are to be elected, not less than two individuals
designated by such Specified Stockholder (as applied to each Specified Stockholder,
the “Specified Stockholder Nominees”).
For the avoidance of doubt, in no event shall any Specified Stockholder Nominee
be required to be an “independent director” within the meaning of any
applicable law, rule or regulation, including, without limitation, any
applicable stock exchange rule (collectively, the “Listing
Exchange Rules”).


 


(b)  With respect to each Specified
Stockholder, until such time as such Specified Stockholder and its Affiliates
no longer beneficially own in the aggregate at least 10% but less than 20% of
the total number of shares of Common Stock of WIND outstanding at such time,
WIND and the Board of Directors shall, acting through the Nominating and
Corporate Governance Committee of the Board of Directors, include in the slate
of nominees recommended to the Stockholders for election as directors at any
annual or special meeting of the Stockholders at which directors of WIND are to
be elected, one Specified Stockholder Nominee.


 


(c)  Vacancies arising through the death,
resignation or removal of a Specified Stockholder Nominee nominated by a
Specified Stockholder to the Board of Directors pursuant to Section 2(a) or
2(b) hereof may be filled by the Board of Directors only with a Specified
Stockholder Nominee nominated by such Specified Stockholder and the director so
chosen shall hold office until the next election and until his or her successor
is duly elected and qualified, or until his or her earlier death, resignation
or removal.


 


(d)  No Specified
Stockholder shall be entitled to designate a person as a nominee to the Board
of Directors upon a written determination by the Nominating and 


 


3

















 


Corporate Governance Committee of WIND (which
determination shall set forth in reasonable detail the grounds for such
determination) that such person would not be qualified under any applicable
law, rule or regulation (including the Listing Exchange Rules of any
securities exchange on which the securities of WIND are then listed) to serve
as a director of WIND.  Except as set
forth in the preceding sentence, WIND shall not have the right to object to any
Specified Stockholder Nominee.


 


(e)  WIND shall notify
each Specified Stockholder in writing of the date on which proxy materials are
expected to be mailed by WIND in connection with an election of directors at an
annual or special meeting of the Stockholders (and such notice shall be
delivered to each Specified Stockholder at least 120 days prior to such
expected mailing date).  WIND shall provide
each Specified Stockholder with a reasonable opportunity to review and provide
comments on any portion of the proxy materials relating to the Specified
Stockholder Nominees or the rights and obligations provided under this
Agreement and to discuss any such comments with WIND.  If WIND objects to the designation of a
Specified Stockholder Nominee pursuant to Section 2(d), WIND shall notify
the Specified Stockholder that designated such Specified Stockholder Nominee
sufficiently in advance of the date on which such proxy materials are to be
mailed by WIND in connection with such election of directors so as to enable
such Specified Stockholder to propose a replacement Specified Stockholder
Nominee, if necessary, in accordance with the terms of this Agreement.


 


(f)  So long as this
Agreement shall remain in effect, subject to applicable legal requirements, the
Bylaws and the Certificate of Incorporation shall permit the rights and
obligations set forth herein (including, without limitation, by allowing for a sufficient
number of authorized directors to permit the nomination and election of the Specified
Stockholder Nominees) and WIND shall have a Nominating and Corporate Governance
Committee (or similar committee) of the Board of Directors empowered to take
the actions herein required.


 


(g)  With respect to
any action or right given to or exercisable by either Specified Stockholder
hereunder or any notice to be sent hereunder, such action or right shall be
exercised by in the case of D. E. Shaw, by MWP and MWPH, acting jointly, and in
the case of Madison Dearborn, by Madison Dearborn Partners IV, L.P. (“MDP IV”), the general partner of Madison Dearborn, and any
such notice shall be sent to, in the case of D. E. Shaw, to each of MWP and
MWPH, and in the case of Madison Dearborn, to each of MDP IV and Madison
Dearborn.  Notices shall be sent in the
manner and to the recipient specified in Section 3(f), and WIND may rely
upon the contents of any such notice delivered by a Specified Stockholder
without further inquiry.


 


Section 3.  Voting Agreement.


 


(a) General. From and after the date hereof and until the provisions of
this Section 3 cease to be effective, each Specified Stockholder shall vote, or
cause to be voted, and shall cause each affiliated investment fund and direct
or indirect wholly-owned subsidiary of such Specified Stockholder to vote, or
cause to be voted, all Voting Securities over which such Person has the power
to vote or direct the voting or otherwise has voting control, and shall take,
and shall cause each affiliated investment fund and direct or indirect wholly-owned
subsidiary of such Specified Stockholder to vote, all other necessary or desirable
actions within its control in its capacity as a stockholder (including, without
limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
WIND shall take all necessary or desirable actions within its control
(including, without limitation, calling special board and stockholder
meetings), so that:


 


(i)            the
authorized number of directors on the Board of Directors shall be established
at a number sufficient to permit election of each of the Specified Stockholder
Nominees (who, together with any other member of the Board of Directors who
does not qualify as an “independent director” under the Listing Exchange Rules,
shall constitute a minority of the authorized number of directors on the Board
of Directors in the event that WIND no longer qualifies for “controlled company”
status under the Listing Exchange Rules); 


 


(ii)           each
of the Specified Stockholder Nominees shall be elected to the Board of
Directors; and 


 


(iii)          the
removal from the Board of Directors (with or without cause) of any Specified
Stockholder Nominee shall be immediately at the written request of the
Specified Stockholder nominating such Specified Stockholder Nominee, but only
upon such written request and, except for cause, under no other circumstances.


 


(b) Termination of Voting Agreement. Unless otherwise agreed in writing
executed by the Specified Stockholders prior to the Voting Termination Date,
the rights and obligations of the parties under this Section 3 may be
terminated by either Specified Stockholder on the 90th day after written notice
of termination is delivered by such Specified Stockholder to the other parties
hereto (such 90th day, “Voting Termination Date”);
provided that no such termination shall limit or terminate the liability of a
party for breach of this Section 3 arising prior to termination.


 


Section 4.  Miscellaneous.


 


(a)  Governing Law.  This Agreement and the rights and obligations
of the parties hereunder and the Persons subject hereto shall be governed by,
and construed and interpreted in accordance with, the laws of the State of
Delaware, without giving effect to the choice of law principles thereof.


 


4

















 


(b)  Certain
Adjustments.  The provisions of this
Agreement shall apply to the full extent set forth herein with respect to any and
all shares of capital stock of WIND or any successor or assign of WIND (whether
by merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for, or in substitution for the shares of Common Stock,
by combination, recapitalization, reclassification, merger, consolidation or
otherwise and the term “Common Stock”
shall include all such other securities.


 


(c)  Enforcement.  Each of the parties agrees that in the event
of a breach of any provision of this Agreement, the aggrieved party may elect
to institute and prosecute proceedings in any court of competent jurisdiction
to enforce specific performance or to enjoin the continuing breach of this
Agreement.  Such remedies shall, however,
be cumulative and not exclusive, and shall be in addition to any other remedy
which any party hereto may have.  Each
party hereto hereby irrevocably submits to the non-exclusive jurisdiction of
the state and federal courts in New York for the purposes of any suit, action
or other proceeding arising out of or based upon this Agreement or the subject
matter hereof.  Each party hereto hereby
consents to service of process made in accordance with Section 4(f).


 


(d)  Successors and
Assigns.  Except as otherwise
provided herein, the provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.


 


(e)  Entire
Agreement.  This Agreement
constitutes the full and entire understanding and agreement between the parties
with regard to the subject matter hereof and supersedes all prior oral or
written (and all contemporaneous oral) agreements or understandings with
respect to the subject matter hereof.


 


(f)  Notices.  All notices, requests, demands, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid,
(c) sent by next-day or overnight mail or delivery or (d) sent by
fax, as follows (or to such other address as the party entitled to notice shall
hereafter designate in accordance with the terms hereof):


 


(i)  If to WIND, to it at:


 


First Wind Holdings
Inc.

179 Lincoln Street, Suite 500

Boston, MA  02111

Telephone: 617-960-2888

Facsimile: 617-960-2889

Attention: General Counsel


 


5

















 


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


 


Davis Polk &
Wardwell LLP

450 Lexington Avenue

New York, NY  10017

Telephone: 212-450-4565

Facsimile: 212-701-5565

Attention: Joseph A. Hall


 


(ii)  If to either MWP
or MWPH, to either at:


 


c/o D. E. Shaw &
Co., L.L.C. 

1166 Avenue of the Americas 

New York, NY 10036 

Attention: General Counsel 

Telephone: (212) 478-0000

Fax: (212) 478-0100


 


(iii)  If to either MDP
IV or Madison Dearborn, to either at:


 


c/o Madison Dearborn
Partners, LLC

Three First National Plaza, Suite 4600

Chicago, IL 60602 

Attention: General Counsel 

Telephone: (312) 895-1000

Fax:  (312) 895-1001


 


All
such notices, requests, demands, waivers and other communications shall be
deemed to have been received by (w) if by personal delivery, on the day
delivered, (x) if by certified or registered mail, on the fifth business
day after the mailing thereof, (y) if by next-day or overnight mail or
delivery, on the day delivered, or (z) if by fax, on the day delivered,
provided that such delivery is confirmed.


 


(g)  Waiver.  Waiver by any party hereto of any breach or
default by the other party of any of the terms of this Agreement shall not
operate as a waiver of any other breach or default, whether similar to or
different from the breach or default waived. 
No waiver of any provision of this Agreement shall be implied from any
course of dealing between the parties hereto or from any failure by either
party to assert its or his or her rights hereunder on any occasion or series of
occasions.


 


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


 


6

















 


(i)  Headings.  The headings to sections in this Agreement
are for the convenience of the parties only and shall not control or affect the
meaning or construction of any provision hereof.


 


(j)  Invalidity of
Provision.  The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement,
including that provision, in any other jurisdiction.


 


(k)  Amendments and
Waivers. The provisions of this Agreement may be amended at any time and
from time to time, and particular provisions of this Agreement may be waived or
modified, with and only with an agreement or consent in writing signed by each
of the parties hereto.


 


(l)  Further
Assurances.  Each party hereto shall
do and perform or cause to be done and performed all such further acts and
things and shall execute and deliver all such other agreements, certificates,
instruments and documents as any other party hereto or Person subject hereto
may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement.


 


[Remainder of this page intentionally left blank]


 


7

















 


IN WITNESS WHEREOF
this Agreement has been signed by each of the parties hereto, and shall be
effective as of the date first above written.


 


	
   

  	
   

  	
  FIRST WIND
  HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MADISON DEARBORN
  CAPITAL PARTNERS IV, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title: