SUBSCRIPTION AGENT AGREEMENT Dated as of January 27, 2010
Exhibit
4.2
Dated
as of January 27, 2010
American
Stock Transfer & Trust Company, LLC
00
Xxxxxx Xxxx
Xxx
Xxxx, Xxx Xxxx 00000
Ladies
and Gentlemen:
In
connection with your appointment as Subscription Agent in the transaction
described herein, PGT, Inc., a Delaware corporation (the Company), hereby
confirms its arrangements with you as follows:
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1.
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Rights
Offering
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(a)
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The
Company is distributing to each holder of record (“Eligible Holder”) as of
the close of business on February 8, 2010 (the “Record Date”), of its
outstanding shares of common stock, par value $0.01 per share (the “Common
Stock”), one non-transferable subscription right (a “Right”) for every
1.75 shares of the Company’s Common Stock owned as of the Record Date (or
.571428547 of a Right for each share of the Company’s Common Stock owned
as of the Record Date). Each whole Right entitles an Eligible
Holder to subscribe for and purchase one share of the Company’s Common
Stock (each, a “Share”) at a subscription price of $1.50 per share (the
“Subscription Price”), payable by cashier’s or certified check or by wire
transfer of immediately available funds, upon the terms and conditions set
forth in the Prospectus (as defined below) (the “Rights
Offering”). The term “subscribed” shall mean submitted for
purchase from the Company by a stockholder in accordance with the terms of
the Rights Offering, and the term “subscription” shall mean any such
submission. The Rights Offering will expire at 5:00 p.m., Eastern
Time, on March 12, 2010 (the “Expiration Time”), unless the Company
extends the period of time for which the Rights Offering is open, in which
event the term “Expiration Time” shall mean the latest time and date at
which the Rights Offering, as so extended by the Company from time to
time, shall expire.
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(b)
The Company filed a Registration Statement relating to the Rights Offering
with the United States Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended, on December 24, 2009. The
Company filed amendments to the Registration Statement with the SEC on
January 29, 2010, and February 8, 2010. The terms of the Rights
Offering are more fully described in the Prospectus (the “Prospectus”)
forming part of the Registration Statement as such Registration Statement
may be declared effective, and the accompanying Instructions for Use of
PGT, Inc. Subscription Rights Certificates (the “Instructions for
Use”). All terms used and not defined herein shall have the
same meaning as in the Prospectus. Promptly after the Record
Date, the Company will provide you with a list of holders of the Company’s
Common Stock as of the Record Date.
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(c)
The Rights are evidenced by non-transferable subscription rights
certificates (the “Subscription Rights Certificates”). Each Eligible
Holder of Rights who exercises in full his Rights to subscribe for Shares
that can be subscribed for with the Rights evidenced by such Subscription
Rights Certificates (the “Basic Subscription Privilege”) will, to the
extent that other Eligible Holders elect not to exercise all of their
respective Rights in the Basic Subscription Privilege, be permitted to
subscribe for additional shares of Common Stock at the Subscription Price
up to an amount equal to the number of Shares such Eligible Holder
subscribed for under his Basic Subscription Privilege (the
“Over-Subscription Privilege”). Fractional Rights will be
rounded down to the nearest whole number. No fractional Shares shall be
issued.
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2.
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Appointment
of Subscription Agent – You are hereby appointed as Subscription
Agent to effect the Rights Offering in accordance with the Prospectus.
Each reference to you in this letter is to you in your capacity as
Subscription Agent unless the context indicates
otherwise.
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3.
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Delivery
of Documents - As soon as is reasonably practical, you shall mail
or cause to be mailed to each Eligible Holder at the close of business on
the Record Date (a) a Subscription Rights Certificate evidencing the
Rights to which such Eligible Holder is entitled, (b) a Prospectus, (c) an
Instruction for Use of PGT, Inc. Subscription Rights Certificates, (d) a
Letter to Stockholders Who Are Record Holders, and (e) a return envelope
addressed to you. Prior to mailing, the Company will provide you with
blank Subscription Rights Certificates which you will prepare and issue in
the name of each Eligible Holders and for the number of Rights to which
each such Eligible Holder is entitled. The Company will also
provide you with a sufficient number of copies of each of the documents to
be mailed with the Subscription Rights Certificates.
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4.
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Subscription
Procedure -
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(a)
Upon your receipt prior to the Expiration Time (by mail or delivery), as
Subscription Agent, of (ii) any Subscription Rights Certificate completed
and endorsed for exercise, as provided on the reverse side of the
Subscription Rights Certificate, and (ii) payment in full of the
Subscription Price in U.S. funds by cashier’s or certified check (without
deduction for bank service charges or otherwise) payable to the order of
American Stock Transfer & Trust
Company or by wire transfer of immediately available funds to the
subscription account maintained by you for use in the Rights Offering, you
shall as soon as practicable after the Expiration Time, but after
performing the procedures described in subparagraphs (b) and (c) below,
mail to the subscriber’s registered address on the books of the Company
certificates representing the Shares underlying each Right duly subscribed
for (pursuant to the Basic Subscription Privilege and the
Over-Subscription Privilege) (or credit by book-entry transfer the
Depository Trust Company’s nominee position, or other applicable nominee
position, with the Shares duly subscribed for pursuant to the Basic
Subscription Privilege and the Over-Subscription Privilege) and furnish a
list of all such information to the Company.
(b)
As soon as practicable after the Expiration Time, but in any event not
later than the third business day following the Expiration Time, you shall
calculate the number of Shares to which each subscriber is entitled
pursuant to the Over-Subscription Privilege. The Over-Subscription
Privilege may be exercised only by Eligible Holders who
have
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subscribed
for and purchased all of the Shares for which they are entitled to
subscribe pursuant to the Basic Subscription Privilege and only up to the
number of Shares for which such Eligible Holders subscribed under their
respective Basic Subscription Privilege. The Shares available
for subscription under the Over-Subscription Privilege will be those that
have not been subscribed and paid for pursuant to the Basic Subscription
Privilege (collectively, the “Remaining Shares”). If there are
sufficient Remaining Shares to satisfy all additional subscriptions by
Eligible Holders exercising their respective rights under the
Over-Subscription Privilege, each such Eligible Holder shall be allotted
the number of Remaining Shares for which he subscribed (up to the number
of Shares for which such Eligible Holder subscribed under his Basic
Subscription Privilege). If the aggregate number of Shares
subscribed for under the Over-Subscription Privilege exceeds the number of
Remaining Shares, the number of Remaining Shares allotted to each
participant in the Over-Subscription Privilege shall be the product
(disregarding fractions) obtained by multiplying the number of Remaining
Shares by a fraction of which the numerator is the number of Shares
subscribed for by that participant under the Over-Subscription Privilege
and the denominator is the aggregate number of Shares subscribed for by
all participants under the Over-Subscription Privilege. Any fractional
Share to which participants exercising rights under the Over-Subscription
Privilege would otherwise be entitled pursuant to such allocation shall be
rounded down to the next whole Share.
(c)
Upon calculating the number of Remaining Shares to which each
subscriber is entitled pursuant to the Over-Subscription Privilege and the
amount overpaid, if any, by each subscriber, you shall, as soon as
practicable, furnish a list of all such information to the
Company.
(d)
Upon calculating the number of Remaining Shares to which each subscriber
is entitled pursuant to the Over-Subscription Privilege and assuming
payment for such Shares has been delivered, you shall, as contemplated in
subparagraph (a) above, mail certificates representing such Shares which
each such subscriber has been allotted (or credit by book-entry transfer
the Depository Trust Company’s nominee position, or other applicable
nominee position, with the Shares duly subscribed for). If a
lesser number of Remaining Shares is allotted to a subscriber under the
Over-Subscription Privilege than that for which such subscriber has
tendered payment, you shall remit the difference to such subscriber
without interest or deduction at the same time as certificates
representing the Shares allotted pursuant to the Over-Subscription
Privilege are mailed (or book-entry accounts are credited).
(e)
Funds received by you pursuant to the Basic Subscription Privilege and the
Over- Subscription Privilege shall be held by you in a segregated
account. Promptly after expiration of the Rights Offering and
after all pro
rata allocations and adjustments have been completed and confirmed
by the Company, you shall remit to the Company all funds received in
payment of the Subscription Price for all Shares sold in the Rights
Offering and you shall refund payments to subscribers for Shares
subscribed for but not allocated (if any).
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5.
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No
Sale or Transfer of Rights – Rights may not be sold or otherwise
transferred. Rights will, however, be transferable by operation
of law. Upon expiration of the Rights Offering, all unexercised
Rights will automatically expire.
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6.
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Defective
Exercise of Rights; Lost Subscription Certificates - The Company
shall have the absolute right to reject any defective exercise of Rights
or to waive any defect in exercise. In the event you determine that any
Subscription Rights Certificate does not appear to you to have been
properly completed or executed, or if the Subscription Rights Certificates
do not appear to you to be in proper form for subscription, or any other
irregularity in connection with the subscription appears to you to exist,
you will follow, when possible, your regular procedures to attempt to
cause such defect or irregularity to be corrected. However,
unless requested to do so by the Company, you shall not be under any duty
to give notification to Eligible Holders of Subscription Rights
Certificates of any defects or irregularities in
subscriptions. Subscriptions will not be deemed to have been
made until all such defects or irregularities have been cured or waived
within such time as the Company shall determine. You shall as soon as
practicable return Subscription Rights Certificates with the defects or
irregularities which have not been cured or waived to the holder of the
Rights. If any Subscription Rights Certificate is alleged to have been
lost, stolen or destroyed, you should follow the same procedures followed
for lost stock certificates representing Common Stock you use in your
capacity as transfer agent for the Company’s Common
Stock.
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7.
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Delivery
- You shall deliver to the Company the exercised Subscription Rights
Certificates in accordance with written directions received from the
Company. Promptly after expiration of the Rights Offering and
after all pro
rata allocations and adjustments have been completed and confirmed
by the Company, you shall deliver to the subscribers who have duly
exercised Rights at their registered addresses certificates representing
the Shares for which they subscribed (or you shall credit the appropriate
account by book-entry transfer) as instructed on the reverse side of the
Subscription Rights Certificates.
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8.
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Reports
- You shall notify the Company by telephone before the close of business
on each business day during the period commencing 5 business days after
the mailing of the Rights and ending at the Expiration Time (a ”Daily
Notice”), which notice shall thereafter be confirmed in writing, of (i)
the number of Rights exercised and the day covered by such Daily Notice,
(ii) the number of Shares thereby subscribed for on the day covered by
such Daily Notice, (iii) the amount of funds received thereby on the day
covered by such Daily Notice, (iv) the number of Rights for which
defective exercises have been received and the day covered by such Daily
Notice, and (v) the cumulative total of the information set forth in
clauses (i) through (iv) above; provided that on the
date on which the Expiration Time occurs, such notice shall be given to
the Company more frequently than daily. At or before 5:00 p.m.,
Eastern Time, on the first NASDAQ National Market trading day following
the Expiration Time, you shall certify in writing to the Company the
cumulative total through the Expiration Time of all the information set
forth in clauses (i) through (iv) above. You shall also
maintain and update a listing of Eligible Holders who have fully or
partially exercised their Rights and Eligible Holders who have not
exercised their Rights. You shall provide the Company or its
designees with such information compiled by you pursuant to this Paragraph
8 as any of them shall request.
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9.
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Future
Instructions – With respect to notices or instructions to be provided by the
Company hereunder, you may rely and act on any written instruction signed
by any one or more of the following authorized officers or employees of
the Company:
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Xxxxxxx
Xxxxxxx
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Executive
Vice President and CFO
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Xxxxx
Xxxxxxxx
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Vice
President and General Counsel
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10.
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Payment of
Expenses - The Company will pay you compensation for acting in your
capacity as Subscription Agent hereunder in the amount of $10,000. The
Company will pay an additional fee equal to one-third of the Subscription
Agent fee for each extension of the Offering.
Fees
will be paid by:
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Name:
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PGT
Industries, Inc.
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Attention:
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Xxxx
Xxxx
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Address:
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0000
Xxxxxxxxxx Xxxxx
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Xxxxxxx:
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Xxxxxxx,
XX 00000
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Facsimile:
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(000)
000-0000
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Phone:
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(000)
000-0000 x00000
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Email:
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XXxxx@XXXXxxxxxxxxx.xxx
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11.
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Indemnification
- The Company covenants and agrees to indemnify and hold you harmless
against any costs, expenses (including reasonable fees of legal counsel),
losses or damages, which may be paid, incurred or suffered by or to which
you may become subject arising from or out of, directly or indirectly, any
claim or liability resulting from your actions as Subscription Agent
pursuant hereto; provided that such covenant and agreement does not extend
to such costs, expenses, losses and damages incurred or suffered by you as
a result of, or arising out of, your own negligence, misconduct or bad
faith or that of any employees, agents or independent contractors used by
you in connection with performance of your duties as Subscription Agent
hereunder.
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12.
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Notices - Unless
otherwise provided herein, all reports, notices and other communications
required or permitted to be given hereunder shall be in writing and
delivered by hand or confirmed telecopy or by first class U.S. mail,
postage prepaid, shall be deemed given if by hand or telecopy, upon
receipt or if by U.S. mail, three business days after deposit in the U.S.
mail and shall be addressed as
follows:
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(a)
If
to the Company, to:
0000
Xxxxxxxxxx Xxxxx
Xxxxxxx,
XX 00000
Attention: Xxxxx
Xxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
(b) If
to you, to:
American
Stock Transfer & Trust
Company, LLC
00
Xxxxxx Xxxx
Xxx
Xxxx, X.X. 00000
Attention:
Xxxxxx Xxxxxxxxx
Telephone:
(000) 000-0000
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Telecopy:
(000) 000-0000
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13.
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Governing
Law - This
agreement shall be construed in accordance with the laws of the State of
Delaware, without regard to the conflicts of laws principles
thereof.
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14.
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Counterparts - This
agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which shall constitute one and the same
agreement.
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| By: |
/s/ Xxxxx Xxxxxxxx
III
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Name: Xxxxx
Xxxxxxxx III
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Title: Vice
President, General Counsel, and
Secretary
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Agreed
& Accepted:
AMERICAN
STOCK TRANSFER & TRUST COMPANY, LLC
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By:
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/s/
Xxxxx Xxxxxxxx
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Name:
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Xxxxx
Xxxxxxxx
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Title:
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Vice
President
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