. As used in this Agreement, the following terms shall have the
following respective meanings:
" Affiliate " shall mean, with respect to any Person, any
other Person directly or indirectly controlling, controlled by or
under direct or indirect common control with such Person,
provided , that each Affiliated Entity, each Sponsor
Purchaser and each Affiliate of an Affiliated Entity or a Sponsor
Purchaser shall be deemed (except as specifically provided in
Section 5.6(f) and Section 7.1(c) hereof) to be an Affiliate of
Sponsor.
" Affiliated Entity " shall mean any investment fund or
holding company formed for investments purposes that is primarily
managed, advised or serviced by Sponsor or by an Affiliate of
Sponsor, including but not limited to KKR PEI and its
Subsidiaries.
" Agreement " has the meaning set forth in the recitals
hereof.
" Bank Purchaser " means Citibank, N.A..
" Bank Purchaser Transfer Event " shall mean (i) an
exercise of the Bank Purchaser's rights under Section 7 of the
Security Agreements, (ii) an exercise of the Bank Purchaser's
rights under Section 5(b) of a Swap Agreement upon a default under
such agreement (a " Swap Default ") or (iii) the occurrence
of the Scheduled Termination Date with respect to a Swap
Agreement.
" Beneficially Own ," " Beneficially Owned ," or "
Beneficial Ownership " shall have the meaning set forth in
Rule 13d-3 of the rules and regulations promulgated under the
Exchange Act, except that for purposes of this Agreement the words
"within sixty days" in Rule 13d-3(d)(1)(i) shall not apply, to the
effect that a Person shall be deemed to be the beneficial owner of
a security if that Person has the right to acquire beneficial
ownership of such security at any time.
" Benefit Plan " or " Benefit Plans " shall mean
employee benefit plans as defined in Section 3(3) of ERISA and all
other employee benefit practices or arrangements, including,
without limitation, any such practices or arrangements providing
severance pay, sick leave, vacation pay, salary continuation for
disability, retirement benefits, deferred compensation, bonus pay,
incentive pay, stock options or other stock-based compensation,
hospitalization insurance, medical insurance, life insurance,
scholarships or tuition reimbursements, maintained by the Company
or any of its Subsidiaries or to which the Company or any of its
Subsidiaries is obligated to contribute for employees or former
employees.
" Board Designee " has the meaning set forth in Section
5.5(a) hereof.
" Board of Directors " means the Board of Directors of
the Company.
" Call Option " has the meaning set forth in Section
3.2(b) hereof.
" Closing " has the meaning set forth in Section 2.2
hereof.
" Closing Date " has the meaning set forth in Section 2.2
hereof.
" Code " means the Internal Revenue Code of 1986, as
amended.
" Common Stock " has the meaning set forth in the
recitals hereof.
" Company " has the meaning set forth in the recitals
hereof.
" Confidential Information " has the meaning set forth in
Section 9.9 hereof.
" Control " (including the terms " controlling " "
controlled by " and " under common control with ")
with respect to any Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
" Designee Termination Date " has the meaning set forth
in Section 5.5(c) hereof.
" ERISA " means the Employee Retirement Income Security
Act of 1974, as amended.
" Exchange Act " means the Securities Exchange Act of
1934, as amended, and all of the rules and regulations promulgated
thereunder.
" Financial Statements " has the meaning set forth in
Section 3.7(b) hereof.
" GAAP " has the meaning set forth in Section 3.7(b)
hereof.
" HSR Act " means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
" Indentures " has the meaning set forth in Section
6.1(e) hereof.
" Intellectual Property " means all intellectual property
rights and related priority rights, arising from or in respect of
the following, whether protected, created or arising under the Laws
of the United States or any other jurisdiction or under any
international convention, including: (i) all patents and patent
applications, including all continuations, divisionals,
continuations-in-part and provisionals and patents issuing thereon,
and all reissues, reexaminations, substitutions, renewals and
extensions thereof (collectively, " Patents "); (ii) all
trademarks, service marks, trade names, trade dress, logos,
corporate names and other source or business identifiers, together
with the goodwill associated with any of the foregoing, and all
applications, registrations, renewals and extensions thereof; (iii)
all copyrights, works of authorship and moral rights, and all
registrations, applications, renewals, extensions and reversions
thereof; and (iv) all confidential and proprietary information or
non-public discoveries, concepts, ideas, research and development,
technology, software, know-how, formulae, inventions, trade
secrets, compositions, processes, techniques, technical data and
information, procedures, designs, drawings, specifications,
databases, customer lists, supplier lists, pricing and cost
information, and business and marketing plans and proposals, in
each case excluding any rights in respect of any of the foregoing
that comprise or are protected by Patents.
" KKR PEI " has the meaning set forth in the recitals
hereof.
" Material Adverse Effect " means such facts,
circumstances, events or changes that are, individually or in the
aggregate, materially adverse to (i) the business, financial
condition, assets or continuing operations of the Company and its
Subsidiaries taken as a whole or (ii) the Company's ability to
perform its obligations under this Agreement, but shall not include
facts, circumstances, events or changes (a) generally affecting any
of the industries in which the Company, taken together with its
Subsidiaries, operates, in the United States or elsewhere in the
world or the economy or the financial or securities markets in the
United States or elsewhere in the world, in each case, except to
the extent such facts, circumstances, events or changes
disproportionately affect the Company and its Subsidiaries; (b)
resulting from changes in applicable legal requirements, GAAP or
accounting standards; (c) resulting from a change in the Company's
stock price or the trading volume in the Common Stock in and of
itself or (d) resulting from a failure to meet securities analysts'
published revenue or earnings predictions for the Company in and of
itself.
" NASD " means the National Association of Securities
Dealers, Inc.
" Non-Investor Affiliates " has the meaning set forth in
Section 5.6(f) hereof.
" Notes ", " 2012 Notes " and " 2014 Notes
" have the meanings set forth in the recitals hereof.
" Own " in the context of Notes shall mean (i) the right
to solely control the voting or direction of the voting of such
Notes and (2) bearing all or substantially all economic risk of
loss or appreciation (less a fixed or floating interest rate
return) in the value of, and any profit (less a fixed or floating
interest rate return) derived from a transaction in, such
Notes.
" Permitted Transfer " has the meaning set forth in
Section 7.1(a) hereof.
" Person " means an individual, partnership, corporation,
limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture or any other
entity or organization.
" Policy Termination Date " means the first to occur
of:
(a) If a Designee Termination Date occurs
after March 31, 2007, as a result of the events described in clause
(v) of the definition of Designee Termination Date and if, at the
time of such Designee Termination Date, there has never been a
Board Designee on the Board of Directors, three months following
the Closing Date;
(b) If a Designee Termination Date occurs after March 31, 2007,
as a result of the events described in clause (v) of the definition
of Designee Termination Date and if, at or prior to the time of
such Designee Termination Date, there has at any time been a Board
Designee on the Board of Directors, three months following the
occurrence of such Designee Termination Date;
(c) If a Designee Termination Date occurs on or prior to March
31, 2007, as a result of the events described in clause (v) of the
definition of Designee Termination Date, three months following the
occurrence of such Designee Termination Date;
(d) If a Designee Termination Date occurs as a result of
anything other than the events described in clause (v) of the
definition of Designee Termination Date, the later of (i) the date
that is three months following such Designee Termination Date or
(ii) the date of the resignation (other than the conditional
resignation required pursuant to Section 5.5(a) hereof), retirement
or removal of the Board Designee from the Board of Directors.
" Preferred Stock " has the meaning set forth in Section
3.2(a) hereof.
" Purchaser " and " Purchasers " have the meanings
set forth in the recitals hereof.
" Purchaser Adverse Effect " has the meaning set forth in
Section 4.3 hereof.
" Representatives " has the meaning set forth in Section
9.9 hereof.
" Restricted Period " has the meaning set forth in
Section 7.1(a) hereof.
" Rights Agreement " has the meaning set forth in Section
6.1(f) hereof.
" SEC " shall mean the Securities and Exchange
Commission.
" SEC Reports " means the Company's Annual Report on Form
10-K for the fiscal year ended June 30, 2006, the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended October
1, 2006, the Company's Proxy Statement on Schedule 14A, filed on
September 20, 2006, for its 2006 Annual Meeting of Stockholders,
and any Current Reports on Form 8-K filed by the Company on or
after September 8, 2006, together in each case with any documents
incorporated by reference therein or exhibits thereto.
" Securities " shall mean the Notes and the Common Stock
or other securities issuable upon conversion of the Notes.
" Securities Act " shall mean the Securities Act of 1933,
as amended, and all of the rules and regulations promulgated
thereunder.
" Security Agreements " means those two certain Security
Agreements contemplated to be entered into by and between KKR PEI Solar Holdings I,
Ltd., a Cayman Islands limited company, and the Bank Purchaser and
KKR PEI Solar Holdings II, Ltd., a Cayman Islands limited
company, and the Bank Purchaser in connection with the
transactions contemplated hereby in the form provided by Sponsor to the Company
concurrently with the execution of this Agreement (without giving
effect to any subsequent amendment thereof unless consented to by
the Company) .
" Significant Subsidiary " means, in respect of any
Person, a Subsidiary of such Person that would constitute a
"significant subsidiary" as such term is defined under
Rule 1-02(w) of Regulation S-X under the Securities Act
and the Exchange Act.
" Sponsor " shall have the meaning set forth in the
recitals hereof.
" Sponsor Purchasers " shall mean the Purchasers (other
than the Bank Purchaser) and their Affiliates that acquire
Beneficial Ownership of Securities in a Permitted Transfer.
" Standstill Termination Date " means the first to occur
of:
-
- If a Designee Termination Date occurs
after March 31, 2007, as a result of the events described in clause
(v) of the definition of Designee Termination Date and if, at the
time of such Designee Termination Date, there has never been a
Board Designee on the Board of Directors, the date that is six
months following the Closing Date;
- If a Designee Termination Date occurs
after March 31, 2007, as a result of the events described in clause
(v) of the definition of Designee Termination Date and if, at or
prior to the time of such Designee Termination Date, there has at
any time been a Board Designee on the Board of Directors, the later
of (i) the date that is six months following such Designee
Termination Date and (ii) the date that is the first anniversary of
the Closing Date;
- If a Designee Termination Date occurs on
or prior to March 31, 2007, as a result of the events described in
clause (v) of the definition of Designee Termination Date, the date
that is the first anniversary of the Closing Date; and
- If a Designee Termination Date occurs as
a result of anything other than the events described in clause (v)
of the definition of Designee Termination Date, the latest of (i)
the date that is six months following such Designee Termination
Date, (ii) the date of the resignation (other than the conditional
resignation required pursuant to Section 5.5(a) hereof), retirement
or removal of the Board Designee from the Board of Directors and
(iii) the date that is the first anniversary of the Closing
Date.
" Subsidiary " when used with respect to any party means
any corporation or other organization, whether incorporated or
unincorporated, at least a majority of the securities or other
interests of which having by their terms ordinary voting power to
elect a majority o
