PUT OPTION PURCHASE AND
SALE AGREEMENT
PUT OPTION PURCHASE AND SALE
AGREEMENT, dated as of October 12, 2005 (this “
Agreement ”), but effective as of the
Commitment Date, by and among Central Vermont Public Service
Corporation, a Vermont Corporation (“ CVPS
”), Catamount Resources Corporation, a Vermont Corporation
(“ CRC ”) and CEC Wind Acquisition, LLC,
a Delaware limited liability company (“ Wind
”). Capitalized terms used herein but not otherwise defined
shall have the meaning ascribed to such terms in the Subscription
Agreement and/or Stockholders’ Agreement (defined below).
WHEREAS, CRC owns one share of
Class A Common Stock of Catamount Energy Corporation (the
“ Company ”), which represents all of the
Company Equity Securities as of the date of this Agreement;
WHEREAS, prior to the Initial
Closing Date, the number of shares of Class A Common Stock
owned by CRC will be adjusted as provided in the Subscription
Agreement and the Restated Certificate (as adjusted, the “
Put Shares ”);
WHEREAS, CVPS, CRC, Wind and the
Company entered into a Stock Subscription Agreement dated as of
even date herewith (the “ Subscription
Agreement ”) pursuant to which Wind committed to
purchase shares of Common Stock;
WHEREAS, the Company, Wind, CVPS and
CRC are party to a Stockholders’ Agreement, dated as of even
date herewith (as amended from time to time, the “
Stockholders’ Agreement ”); and
WHEREAS, pursuant to
Section 5.03 of the Stockholders’ Agreement, it is
contemplated that the parties hereto shall enter into this
Agreement contemporaneously with entering into the Subscription
Agreement in order to specify the terms and conditions upon which
CRC may exercise the Put Option, pursuant to which CRC shall sell
all (but not less than all) of its Put Shares to Wind, subject to
the terms and conditions set forth herein.
NOW, THEREFORE, in order to
implement the foregoing and in consideration of the mutual
representations, warranties and agreements contained herein and for
other 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:
ARTICLE I
Purchase and Sale of
Put Shares
Section 1.01. Purchase and
Sale of Put Shares; Closing .
(a) On or after the Commitment
Date but in any event prior to March 31, 2006, subject to the
terms and conditions set forth herein, CRC shall have the right to
elect to sell all (but not less than all) of its Put Shares to Wind
(the “ Put Option ”) for an aggregate
purchase price equal to $60,000,000 less the amount of Transaction
Expenses (as defined in the Subscription Agreement) of CVPS and its
Subsidiaries and Affiliates (other than the Company and its
Subsidiaries and Affiliates) reimbursed or paid by the Company
under Section 9.1 of the Subscription Agreement (the “
Put Price ”) by delivering to Wind a written
notice (the date of such delivery, the “ Exercise
Date ”), substantially in the form attached to as
Annex A , of its election to exercise its rights with
respect to the Put Option.
(b) The consummation of the Put
Option (the “ Put Closing ”) shall take
place at the offices of Weil, Gotshal & Manges LLP located at
767 Fifth Avenue, New York, New York 10153 (or at such other place
as the parties may designate) at 10:00 a.m. (New York City
time) on a date to be specified by the parties (the “
Put Closing Date ”), which date shall be no
later than the 45th day after the satisfaction or waiver of the
applicable conditions set forth in Article III (other
than the conditions that by their nature are to be satisfied at the
Put Closing, but subject to the satisfaction or waiver of those
conditions at such time).
(c) At the Put Closing,
(i) CRC shall sell to Wind, and Wind shall purchase from CRC,
the Put Shares, (ii) the Put Price shall be paid by wire
transfer of immediately available funds to an account specified by
CRC at least two Business Days prior to such date and
(iii) CRC shall deliver a certificate or certificates for the
Put Shares, accompanied by duly executed transfer powers, with
signatures guaranteed, and such Put Shares shall be free and clear
of all liens, claims or encumbrances (other than restrictions
imposed by applicable federal and state securities laws). For
purposes of consummating the sale of CRC’s Put Shares
pursuant to the Put, Wind may either purchase CRC’s Put
Shares, or may designate a Person or group of Persons to purchase
such securities (but only if such designation will not delay the
Put Closing).
Section 1.02. Transfer
Taxes . All Transfer Taxes incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne
by the party on which such taxes are imposed. The party on which
such taxes are imposed will file, to the extent required by
applicable law, all necessary Tax Returns and other documentation
with respect to all such Transfer Taxes.
ARTICLE II
Representations and
Warranties
Section 2.01.
Representations and Warranties of CVPS and CRC . Each of
CVPS and CRC hereby represent and warrant to Wind that as of the
Exercise Date:
(a) such party has all
requisite power, authority and legal capacity to execute and
deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized and
approved by all required action on the part of such party. This
Agreement has been duly and validly executed and delivered by the
Company and (assuming due authorization, execution and delivery by
Wind) this Agreement constitutes legal, valid and binding
obligations of such party, enforceable against such party in
accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other
equivalent Laws affecting the enforcement of creditors’
rights in general and subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(b) No material consent,
waiver, approval, Order, Permit or authorization of, or declaration
or filing with, or notification to, any Person or Governmental Body
is required on the part of such party or such party’s
Subsidiaries in connection with the execution and delivery of this
Agreement, the compliance by such party with any of the provisions
hereof, or the consummation of the transactions contemplated
hereby.
(c) CRC has good and valid
title to the Put Shares and the Put Shares are owned by CRC free
and clear of any and all liens or encumbrances other than
restrictions on transfer generally arising under applicable federal
and state securities laws. The Put Shares constitute all of the
Company Equity Securities held, either as the record holder or as
the beneficial owner, by CVPS, CRC or their Permitted
Transferees.
(d) None of the execution and
delivery by such party of this Agreement, the consummation of the
transactions contemplated hereby, or compliance by such party with
any of the provisions hereof will conflict with, or result in any
violation or breach of or default (with or without notice or lapse
of time, or both) under any provision of (i) the certificate
of incorporation, by-laws, limited liability company agreement,
operating agreement, partnership agreement or comparable
organizational documents of such party or any of its Subsidiaries;
(ii) any material contract to which such party or any of its
Subsidiaries is a party or by which any of the properties or assets
of such party or any of its Subsidiaries are bound; (iii) any
order or settlement agreement applicable to such party or any of
its Subsidiaries or any of the properties or assets of such party
or any of its Subsidiaries; or (iv) any applicable Law.
Section 2.02.
Representations and Warranties of Wind . Wind represents and
warrants to CVPS and CRC that as of the Exercise Date:
(a) Wind has full limited
liability company power, authority and legal capacity to execute
and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby. The
execution, delivery and performance by Wind of this Agreement and
the consummation of the transactions contemplated hereby have been
duly authorized and approved by all necessary limited liability
company action on behalf of Wind. Assuming the due authorization,
execution and delivery by the other parties hereto, this Agreement
has been duly and validly executed and delivered by Wind and
(assuming the due authorization, execution and delivery, as
applicable, by CVPS and CRC) this Agreement constitutes the legal,
valid and binding obligation of Wind, enforceable against Wind in
accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other
equivalent Laws affecting the enforcement of creditors’
rights in general and subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(b) No material consent,
waiver, approval, Order, Permit or authorization of, or declaration
or filing with, or notification to, any Person or Governmental Body
is required on the part of Wind in connection with the execution
and delivery of this Agreement, the compliance by Wind with any of
the provisions hereof, or the consummation of the transactions
contemplated hereby.
(c) None of the execution and
delivery by Wind of this Agreement, the consummation of the
transactions contemplated hereby, or compliance by Wind with any of
the provisions hereof will conflict with, or result in any
violation or breach of or default (with or without notice or lapse
of time, or both) under any provision of (i) the certificate
of incorporation, by-laws, limited liability company agreement,
operating agreement, partnership agreement or comparable
organizational documents of Wind; (ii) any material contract
to which Wind is a party or by which any of the properties or
assets of Wind are bound; (iii) any order or settlement
agreement applicable to Wind or any properties or assets of Wind;
or (iv) any applicable Law.
(d) If the Put is consummated,
Wind will acquire the Put Shares hereunder for its own account, for
investment purposes only and not with a view to the distribution
(as such term is used in Section 2(11) of the Securities Act)
thereof. Wind understands that the Put Shares have not been
registered under the Securities Act and cannot be sold unless
subsequently registered under the Securities Act or an exemption
from such registration is available. Wind is an Accredited Investor
and the financial situation of Wind is such that it can afford to
suffer the complete loss of its investment in the Put Shares. The
knowledge and experience of Wind in financial and business matters
is such that it is capable of evaluating the risk of the investment
in the Put Shares. Wind is prepared to bear the economic risk of
this investment for an indefinite period of time.
ARTICLE III
Conditions to
Closing
Section 3.01. Closing
Conditions Precedent to Obligations of Wind . The obligation of
Wind to consummate the transactions contemplated by this Agreement
to be consummated on the Put Closing Date is subject to the
fulfillment, on or prior to the Put Closing Date, of each of the
following conditions precedent (any or all of which may be waived
by Wind in whole or in part):
(a) the Initial Closing under
the Purchase Agreement shall have been consummated.
(b) all “Equity Capital
Contributions&
