EXHIBIT 4.2
AMENDED AND RESTATED
SECURITY HOLDERS' AGREEMENT
This AMENDED AND RESTATED SECURITY HOLDERS' AGREEMENT ("Agreement"),
dated as of June 27, 2006, is among PGT, Inc., a Delaware corporation (the
"Corporation") formerly known as JLL Window Holdings, Inc., JLL Partners Fund
IV, L.P., a Delaware limited partnership ("Fund IV"), those employees of the
Corporation listed on Schedule I hereto (the "Management Investors"), and each
Additional Stockholder (as hereinafter defined).
WITNESSETH
WHEREAS, on January 29, 2004, each of the Corporation, Fund IV, and
certain of the Management Investors entered into that certain Security Holders'
Agreement (the "Original Agreement") to memorialize certain agreements with
respect to the shares of Common Stock owned by such parties, and the other
Management Investors became a party to the Original Agreement, all in accordance
with the terms and conditions set forth therein; and
WHEREAS, in connection with the Corporation's proposed Initial Public
Offering (as hereinafter defined), the Corporation and each of the Stockholders
(as hereinafter defined) desire to amend and restate the Original Agreement on
the terms set forth herein, conditioned upon, subject to, and effective
immediately prior to the consummation of the Corporation's Initial Public
Offering.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
Certain Definitions
For purposes of this Agreement, the following terms shall have the
following meanings:
(a) The term "Affiliate" shall have the meaning set forth in Rule
405 promulgated under the Securities Act.
(b) The term "Additional Stockholders" shall mean the Permitted
Transferees of Fund IV.
(c) The term "Board" shall mean the Board of Directors of the
Corporation.
(d) The term "Commission" shall mean the United States Securities
and Exchange Commission or any successor agency.
(e) The term "Common Stock" shall mean the common stock, par
value $.01 per share, of the Corporation.
(f) The term "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(g) The term "Initial Public Offering" shall mean the first
Public Offering of shares of Common Stock.
(h) The term "Permitted Transferee" shall mean any Person to whom
Fund IV Transfers Shares other than in a Public Offering or a sale pursuant to
Rule 144 under the Securities Act and who, with the prior consent of Fund IV,
agrees to be bound by the provisions of the Agreement.
(i) The term "Person" shall mean any individual, firm,
corporation, partnership, limited liability company, trust or other entity, and
shall include any successor (by merger or otherwise) of such entity.
(j) The term "Public Offering" shall mean a public offering of
equity securities of the Corporation pursuant to an effective registration
statement under the Securities Act (other than (i) a registration statement
filed under Regulation A or on Form S-4 or any successor form or (ii) a
registration statement filed on Form S-8 or any successor form).
(k) The term "Registrable Securities" shall mean (i) the Shares
owned by Fund IV on the date hereof and (ii) Shares acquired by Fund IV or one
or more Additional Stockholders after the date hereof in accordance with the
terms hereof. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when (i) a registration statement registering
such securities under the Securities Act has been declared effective and such
securities have been sold or otherwise transferred by the holder thereof
pursuant to such effective registration statement, or (ii) such securities are
sold in accordance with Rule 144 (or any successor provision) promulgated under
the Securities Act, or (iii) such securities are transferred under circumstances
in which any legend borne by the certificates for such securities relating to
restrictions on transferability thereof, under the Securities Act or otherwise,
is removed by the Corporation.
(l) The term "Securities Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
(m) The term "Shares" shall mean the shares of Common Stock owned
by Fund IV on the date hereof and additional shares of Common Stock acquired by
Fund IV and any Additional Stockholders after the date hereof, including shares
of Common Stock acquired on the exercise of options or as a result of a
subsequent purchase, conversion, reorganization, recapitalization,
reclassification, stock dividend, split-up, sale of assets, distribution or
redemption of securities.
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(n) The term "Stockholder" shall mean Fund IV, each of the
Management Investors, and each of the Additional Stockholders.
(o) The term "Transfer" shall mean any voluntary or involuntary
attempt to, directly or indirectly through the transfer of interests in
controlled Affiliates or otherwise, offer, sell, assign, transfer, grant a
participation in, pledge or otherwise dispose of any shares of Common Stock, or
the consummation of any such transactions, or the soliciting of any offers to
purchase or otherwise acquire, or taking a pledge of, any of shares of Common
Stock; provided, however, that the transfer of an interest in any of the
Stockholders shall not be deemed to be a transfer.
ARTICLE II
Representations and Warranties and Covenants
Section 2.01 Representations and Warranties of the Corporation.
The Corporation represents and warrants to each Stockholder, as of the
date hereof, as follows:
(a) Corporate Authority. The Corporation has full power and
authority to execute, deliver and perform this Agreement;
(b) Due Authorization. This Agreement has been duly and validly
authorized, executed and delivered by the Corporation and constitutes a valid
and binding obligation of the Corporation, enforceable against the Corporation
in accordance with its terms, except that (i) the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting creditors' rights, (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the court before
which any proceedings therefor may be brought, and (iii) the rights to indemnity
hereunder may be limited by federal or state securities laws or the public
policy underlying such laws; and
(c) No Conflict. The execution, delivery and performance of this
Agreement by the Corporation do not violate or conflict with or constitute a
default under (i) the Corporation's certificate of incorporation and by-laws,
(ii) any judgment, order or decree or statute, law, ordinance, rule or
regulation of any governmental entity applicable to the Corporation or (iii) any
material agreement to which it is a party or by which it or its property is
bound.
Section 2.02 Representations and Warranties of the Stockholders.
Each Stockholder individually represents and warrants to each other
Stockholder and the Corporation, as of the date hereof, as follows:
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(a) Authority. The Stockholder (a) if not an individual, has full
power, capacity and authority to execute, deliver and perform this Agreement,
(b) if an individual, is competent and has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby;
(b) Due Authorization. This Agreement has been duly and validly
authorized, executed and delivered by the Stockholder and constitutes a valid
and binding obligation of the Stockholder, enforceable against the Stockholder
in accordance with its terms, except that (i) the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting creditors' rights, (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the court before
which any proceedings therefor may be brought, and (iii) the rights to indemnity
and contribution hereunder may be limited by federal or state securities laws or
the public policy underlying such laws;
(c) No Conflict. The execution, delivery and performance of this
Agreement by the Stockholder do not violate or conflict with or constitute a
default under (i) the Stockholder's organizational documents, provided that this
clause (i) is inapplicable to any Stockholder that is an individual, (ii) any
judgment, order or decree or statute, law ordinance, rule or regulation of any
governmental entity applicable to the Stockholder, or (iii) any material
agreement to which the Stockholder is a party or by which it or its property is
bound; and
(d) Acquisition of Shares for Investment.
(i) Fund IV and each Additional Stockholder agree to the
imprinting, so long as required by law, of legends on certificates representing
all of the Shares acquired by such stockholder to the following effect:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
("TRANSFERRED") EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF THE AMENDED AND
RESTATED SECURITY HOLDERS' AGREEMENT DATED AS OF JUNE 27, 2006, AND MAY NOT
BE TRANSFERRED UNLESS SUCH TRANSFER COMPLIES WITH THE PROVISIONS OF SUCH
SECURITY HOLDERS' AGREEMENT. A COPY OF SUCH SECURITY HOLDERS' AGREEMENT IS
ON FILE WITH THE SECRETARY OF PGT, INC., AND IS AVAILABLE WITHOUT CHARGE
UPON WRITTEN REQUEST THEREFOR. THE HOLDER OF THIS
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CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL
OF THE PROVISIONS OF THE AFORESAID SECURITY HOLDERS' AGREEMENT.
(ii) Each Additional Stockholder understands that the
acquisition of the Shares by it has not been registered under the Securities Act
for the reason that the issuance of the Shares is exempt under the Securities
Act and that the reliance of the Corporation on such exemption is predicated in
part on such Additional Stockholder's representations set forth herein. Each
Additional Stockholder represents that either (a) it is experienced in
evaluating companies such as the Corporation, has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of its investment and has the ability to suffer the total loss of its
investment or (b) such Additional Stockholder is an "Accredited Investor" within
the meaning of Rule 501 of Regulation D under the Securities Act, as presently
in effect. Each Additional Stockholder further represents that it has had the
opportunity to conduct due diligence on the Corporation, to ask questions of and
receive answers from the Corporation concerning the terms and conditions of the
offering and to obtain additional information to such Additional Stockholder's
satisfaction.
Section 2.03 Stockholder Covenants.
(a) Each Stockholder agrees that it will not make known,
disclose, furnish, make available or utilize any of the Corporation's
confidential information, other than as required by law; provided that, prior to
disclosing any of the confidential information required by law, such Stockholder
will promptly notify the Corporation so that the Corporation may seek a
protective order or other appropriate remedy. Confidential information does not
include any information available to or already in the hands of the public, any
information disclosed to such Stockholder by a third party who is not under a
duty of confidentiality with respect to such information, or any information
independently developed by such Stockholder without the use of confidential
information of the Corporation.
(b) Each Stockholder agrees that every Transfer of the shares of
Common Stock owned by such Stockholder shall comply with all federal, state, and
local securities laws applicable to such Transfer.
ARTICLE III
Amendment to Original Agreement
Section 3.01 Amendment. The Corporation, Fund IV, and each
Management Investor agree that each of the provisions of the Original Agreement
shall automatically terminate immediately prior to the consummation of the
Initial Public Offering and shall thereafter be void and have no further force
or effect, provided, however, that such termination of the Original Agreement
shall not relieve any
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Stockholder from liability for any breach of the Original Agreement occurring
prior to such termination.
Section 3.02 Waiver of Tag-along Rights. Each of the Management
Investors hereby waives any and all of his rights pursuant to Section 3.04 of
the Original Agreement in connection with any Transfer by Fund IV of its shares
of Common Stock in connection with the Initial Public Offering, including,
without limitation, its right to exercise so-called tag-along rights and to
notice thereof.
ARTICLE IV
Registration Rights
Section 4.01 Demand Registrations.
(a) Requests for Registration. At any time after one hundred
eighty (180) days following the consummation of the Initial Public Offering,
subject to the conditions set forth herein, Fund IV shall be entitled to make a
written request of the Corporation (a "Demand") for registration under the
Securities Act of all or part of the Registrable Securities (a "Demand
Registration"). Such Demand shall specify: (i) the aggregate number of
Registrable Securities requested to be registered, (ii) the intended method of
distribution in connection with such Demand Registration to the extent then
known. Within ten (10) business days after receipt of a Demand, the Corporation
shall give written notice of such Demand to all Additional Stockholders and
shall include in such registration all Registrable Securities with respect to
which the Corporation has received a written request for inclusion therein
within twenty business (20) days after the receipt by such Additional
Stockholder of the Corporation's notice required by Section 4.02 of this
Agreement.
(b) Number of Demand Registrations. Fund IV shall be entitled to
three (3) Demand Registrations.
(c) Satisfaction of Obligations. Subject to the provisions of
Section 4.03, a registration shall not be treated as a permitted Demand for a
Demand Registration until (i) the applicable registration statement under the
Securities Act has been filed with the Commission with respect to such Demand
Registration (which shall include any registration statement that is not
withdrawn by holders of Registrable Securities in the circumstances contemplated
by Section 4.03), and (ii) such registration statement shall have been
maintained continuously effective for a period of at least ninety (90) days or
such shorter period during which all Registrable Securities included therein
have been disposed of thereunder in accordance with the method of distribution
set forth in such registration statement.
(d) Availability of Short Form Registrations. The Corporation
shall use its best efforts to comply with the requirements for use of short form
registration for the sale of Registrable Securities under the Securities Act.
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(e) Restrictions on Demand Registrations. The Corporation shall
not be obligated (i) in the case of a Demand Registration, to maintain the
effectiveness of a registration statement under the Securities Act, for a period
longer than ninety (90) days or (ii) to effect any Demand Registration within
one hundred eighty (180) days after the effective date of (A) a registration in
which Fund IV and the Additional Stockholders were given "piggyback" rights
pursuant to Section 4.02 hereof (provided that, with respect to such a
registration in which such piggyback rights were exercised, Fund IV and the
Additional Stockholders exercising such piggyback rights were permitted to
include in such registration fifty percent (50%) of the Registrable Securities
that Fund IV and such Additional Stockholders sought to include therein) or (B)
any other Demand Registration. In addition, the Corporation shall be entitled to
postpone (upon written notice to Fund IV and any Additional Stockholders) for up
to ninety (90) days the filing or the effectiveness of a registration statement
in respect of a Demand (but no more than once in any period of twelve (12)
consecutive months) if the Board determines in good faith and in its reasonable
judgment that effecting the Demand Registration in respect of such Demand would
have a material adverse affect on any proposal or plan by the Corporation to
engage in any debt or equity offering, material acquisition, or disposition of
assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer, or other similar transaction. In the event of a
postponement by the Corporation of the filing or effectiveness of a registration
statement in respect of a Demand, Fund IV shall have the right to withdraw such
Demand in accordance with Section 4.03 hereof.
(f) Participation in Demand Registrations. The Corporation shall
not include any securities other than Registrable Securities in a Demand
Registration, except with the written consent of Fund IV. If, in connection with
a Demand Registration, any managing underwriter (or, if such Demand Registration
is not an underwritten offering, a nationally recognized independent underwriter
selected by Fund IV (which such underwriter shall be reasonably acceptable to
the Corporation and whose fees and expenses shall be borne solely by the
Corporation)) advises the Corporation and Fund IV that, in its opinion, the
inclusion of all the Registrable Securities and, if authorized pursuant to this
Article IV, other securities of the Corporation, in each case, sought to be
registered in connection with such Demand Registration would adversely affect
the marketability of the Registrable Securities sought to be sold pursuant
thereto, then the Corporation shall include in the registration statement
applicable to such Demand Registration only such securities as the Corporation
and Fund IV are advised by such underwriter can be sold without such an effect
(the "Maximum Demand Number"), as follows and in the following order of
priority:
(i) first, the number of Registrable Securities sought to be
registered by Fund IV and the Additional Stockholders, pro rata in proportion to
the number of Registrable Securities sought to be registered by Fund IV and each
Additional Stockholder; and
(ii) second, if the number of Registrable Securities to be
included under clause (i) above is less than the Maximum
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Demand Number, the number of securities sought to be included by each other
seller, pro rata in proportion to the number of securities sought to be sold by
all such other sellers, which in the aggregate, when added to the number of
securities to be included pursuant to clause (i) above, equals the Maximum
Demand Number.
(g) Selection of Underwriters. If Fund IV requests that such
Demand Registration be an underwritten offering, then Fund IV shall select a
nationally recognized underwriter or underwriters to manage and administer such
offering, such underwriter or underwriters, as the case may be, to be subject to
the approval of the Corporation, which approval shall not be unreasonably
withheld or delayed.
(h) Other Registrations. If the Corporation has received a Demand
and if the applicable registration statement in respect of such Demand has not
been withdrawn or abandoned, the Corporation shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (other than a registration relating to the Corporation
employee benefit plans, exchange offers by the Corporation or a merger or
acquisition of a business or assets by the Corporation, including, without
limitation, a registration on Form S-4 or Form S-8 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until a period of at least ninety (90) days has elapsed from the
effective date of any Demand Registration, unless a shorter period of time is
approved by Fund IV. Notwithstanding the foregoing, the Corporation shall be
entitled to postpone any such Demand Registration and may file or cause to be
effected such other registration in accordance with the terms of Section 4.01(e)
hereof.
Section 4.02 Piggyback Registrations.
(a) Right to Piggyback. At any time after one hundred eighty
(180) days following the consummation of the Initial Public Offering, whenever
the Corporation proposes to register any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (other than a registration relating to the Corporation
employee benefit plans, exchange offers by the Corporation or a merger or
acquisition of a business or assets by the Corporation including, without
limitation, a registration on Form S-4 or Form S-8 or any successor form) (a
"Piggyback Registration"), the Corporation shall give Fund IV and each of the
Additional Stockholders prompt written notice thereof (but not less than ten
(10) business days prior to the filing by the Corporation with the Commission of
any registration statement with respect thereto). Such notice (a "Piggyback
Notice") shall specify, at a minimum, the number of securities proposed to be
registered, the proposed date of filing of such registration statement with the
Commission, the proposed method of distribution, the proposed managing
underwriter or underwriters (if any and if known), and a good faith estimate by
the Corporation of the proposed minimum offering price of such securities. Upon
the written request of Fund IV or any Additional Stockholder given to the
Secretary of the Corporation within ten (10) business days of receipt by Fund IV
or
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any such Additional Stockholder of the Piggyback Notice (which written request
shall specify the number of Registrable Securities intended to be disposed of by
Fund IV and any such Additional Stockholder and the intended method of
distribution thereof), the Corporation shall include in such registration all
Registrable Securities with respect to which the Corporation has received such
written requests for inclusion.
(b) Priority on Piggyback Registrations. If, in connection with a
Piggyback Registration, any managing underwriter (or, if such Piggyback
Registration is not an underwritten offering, a nationally recognized
independent underwriter selected by the Corporation (reasonably acceptable to
Fund IV and whose fees and expenses shall be borne solely by the Corporation))
advises the Corporation and the holders of the Registrable Securities sought to
be included in such Piggyback Registration, that, in its opinion, the inclusion
of all the securities sought to be included in such Piggyback Registration by
the Corporation, any Persons who have sought to have shares registered
thereunder pursuant to rights to demand (other than pursuant to so-called
"piggyback" or other incidental or participation registration rights) such
registration (such demand rights being "Other Demand Rights" and such Persons
being "Other Demanding Sellers"), any holders of Registrable Securities seeking
to sell such securities in such Piggyback Registration ("Piggyback Sellers"),
and any other proposed sellers, in each case, if any, would adversely affect the
marketability of the securities sought to be sold pursuant thereto, then the
Corporation shall include in the registration statement applicable to such
Piggyback Registration only such securities as the Corporation, the Other
Demanding Sellers, and the Piggyback Sellers are so advised by such underwriter
can be sold without such an effect (the "Maximum Piggyback Number"), as follows
and in the following order of priority:
(i) if the Piggyback Registration is an offering on behalf
of the Corporation and not any Person exercising Other Demand Rights (whether or
not other Persons seek to include securities therein pursuant to so-called
"piggyback" or other incidental or participatory registration rights) (a
"Primary Offering"), then (A) first, such number of securities to be sold by the
Corporation as the Corporation, in its reasonable judgment and acting in good
faith and in accordance with sound financial practice, shall have determined,
and (B) second, if the number of securities to be included under clause (A)
above is less than the Maximum Piggyback Number, the number of Registrable
Securities sought to be registered by each Piggyback Seller, pro rata in
proportion to the number of Registrable Securities sought to be registered by
all the Piggyback Sellers and all other proposed sellers, which in the
aggregate, when added to the number of securities to be registered under clause
(A) above, equals the Maximum Piggyback Number; and
(ii) if the Piggyback Registration is an offering other than
pursuant to a Primary Offering, then (A) first, such number of securities sought
to be registered by each Other Demanding Seller, pro rata in proportion to the
number of securities sought to be registered by all such Other Demanding Sellers
and (B) second, if the number of securities to be included
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under clause (A) above is less than the Maximum Piggyback Number, the number of
Registrable Securities sought to be registered by each Piggyback Seller, pro
rata in proportion to the number of Registrable Securities sought to be
registered by all the Piggyback Sellers and all other proposed sellers, which in
the aggregate, when added to the number of securities to be registered under
clause (A) above, equals the Maximum Piggyback Number.
(c) Withdrawal by the Corporation. If, at any time after giving
written notice of its intention to register any of its securities as set forth
in Section 4.02 and prior to the time the registration statement filed in
connection with such registration is declared effective, the Corporation shall
determine for any reason not to register such securities, the Corporation may,
at its election, give written notice of such determination to Fund IV and each
Additional Stockholder and thereupon shall be relieved of its obligation to
register any Registrable Securities in connection with such particular withdrawn
or abandoned registration (but not from its obligation to pay the Registration
Expenses (as defined below) in connection therewith as provided herein).
Section 4.03 Withdrawal Rights. Fund IV or any Additional Stockholder,
having notified or directed the Corporation to include any or all of its
Registrable Securities in a registration statement under the Securities Act,
shall have the right to withdraw any such notice or direction with respect to
any or all of the Registrable Securities designated for registration thereby by
giving written notice to such effect to the Corporation at least five (5)
business days prior to the effective date of such registration statement. In the
event of any such withdrawal, the Corporation shall not include such Registrable
Securities in the applicable registration and such Registrable Securities shall
continue to be Registrable Securities hereunder. No such withdrawal shall affect
the obligations of the Corporation with respect to the Registrable Securities
not so withdrawn; provided that in the case of a Demand Registration, if such
withdrawal shall reduce the number of Registrable Securities sought to be
included in such registration below $10 million of aggregate market value as of
such date, then the Corporation shall as promptly as practicable give each
holder of Registrable Securities sought to be registered notice to such effect,
referring to this Agreement and summarizing this Section 4.03, and within five
(5) business days of the effectiveness of such notice, either the Corporation or
Fund IV may, by written notices made to each holder of Registrable Securities
sought to be registered and the Corporation, elect that such registration
statement not be filed or, if theretofore filed, be withdrawn. During such
period of five (5) business days, the Corporation shall not file such
registration statement if not theretofore filed or, if such registration
statement has been theretofore filed, the Corporation shall not seek, and shall
use its best efforts to prevent, the effectiveness thereof. Any registration
statement withdrawn or not filed (i) in accordance with an election by the
Corporation, (ii) in accordance with an election by Fund IV pursuant to Section
4.01(e) hereof, (iii) in accordance with an election by Fund IV prior to the
effectiveness of the applicable Demand Registration Statement, or (iv) in
accordance with an election by Fund IV subsequent to the effectiveness of the
applicable Demand Registration Statement, if any post-effective amendment or
supplement to the applicable Demand Registration Statement contains adverse
information regarding the Corporation shall not be counted as
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a Demand Registration. Except as set forth in clause (iv) of the previous
sentence, any Demand withdrawn in accordance with an election by Fund IV
subsequent to the effectiveness of the applicable Demand Registration Statement
shall be counted as a Demand Registration unless Fund IV reimburses the
Corporation for its reasonable out-of-pocket expenses (but not including any
Internal Expenses, as defined below) related to the preparation and filing of
such registration statement (in which event such registration statement shall
not be counted as a Demand Registration hereunder).
Section 4.04 Holdback Agreements. Fund IV and each Additional
Stockholder agree not to effect any public sale or distribution (including,
without limitation, sales pursuant to Rule 144) of equity securities of the
Corporation, or any securities convertible into or exchangeable or exercisable
for such securities, during the ten (10) day period prior to the date on which
the Corporation intends to commence a Public Offering through the period that is
ninety (90) days immediately following the effective date of such Public
Offering (except as part of such registration), or, if later, the date that is
ninety (90) days after the execution date of any underwriting agreement with
respect thereto.
Section 4.05 Registration Procedures.
(a) Whenever Fund IV or any Additional Stockholder has requested
that any Registrable Securities be registered pursuant to this Agreement
(whether pursuant to Demand Registration or Piggyback Registration), the
Corporation (subject to its right to withdraw such registration as contemplated
by Section 4.02(c)) shall use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of distribution thereof and, in connection therewith, the Corporation shall as
expeditiously as possible:
(i) prepare and file with the Commission a registration
statement with respect to such Registrable Securities on any form for which the
Corporation then qualifies and is available for the sale of Registrable
Securities to be registered thereunder in accordance with the intended method of
distribution and use its best efforts to cause such registration statement to
become effective within ninety (90) days of the date thereof;
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for a continuous period of not less than ninety (90) days (or, if
earlier, until all Registrable Securities included in such registration
statement have been sold thereunder in accordance with the method of
distribution set forth therein) and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers
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thereof as set forth in such registration statement (including, without
limitation, by incorporating in a prospectus supplement or post-effective
amendment, at the request of a seller of Registrable Securities, the terms of
the sale of such Registrable Securities);
(iii) before filing with the Commission any such
registration statement or prospectus or any amendments or supplements thereto,
the Corporation shall furnish to counsel selected by Fund IV, counsel for the
underwriter or sales or placement agent, if any, and any other counsel for
holders of Registrable Securities, if any, in connection therewith, drafts of
all such documents proposed to be filed and provide such counsel with a
reasonable opportunity for review thereof and comment thereon, such review to be
conducted and such comments to be delivered with reasonable promptness;
(iv) promptly (a) notify each seller of Registrable
Securities of each of (i) the filing and effectiveness of the registration
statement and prospectus and any amendment or supplements thereto, (ii) the
receipt of any comments from the Commission or any state securities law
authorities or any other governmental authorities with respect to any such
registration statement or prospectus or any amendments or supplements thereto,
and (iii) any oral or written stop order with respect to such registration, any
suspension of the registration or qualification of the sale of such Registrable
Securities in any jurisdiction or any initiation or threat of any proceedings
with respect to any of the foregoing and (b) use its reasonable best efforts to
obtain the withdrawal of any order suspending the registration or qualification
(or the effectiveness thereof) or suspending or preventing the use of any
related prospectus in any jurisdiction with respect thereto;
(v) furnish to each seller of Registrable Securities, the
underwriters and the sales or placement agent, if any, and counsel for each of
the foregoing, a conformed copy of such registration statement and each
amendment and supplement thereto (in each case, including all exhibits thereto
and documents incorporated by reference therein) and such additional number of
copies of such registration statement, each amendment and supplement thereto (in
such case without such exhibits and documents), the prospectus (including each
preliminary prospectus) included in such registration statement and prospectus
supplements and all exhibits thereto and documents incorporated by reference
therein and such other documents as such seller, underwriter, agent or counsel
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by each such seller;
(vi) if requested by the managing underwriter or
underwriters of any registration or by Fund IV or Additional Stockholders,
subject to approval of counsel to the Corporation in its reasonable judgment,
promptly incorporate in a prospectus, supplement or post-effective amendment to
the registration statement such information concerning underwriters and the plan
of
12
distribution of the Registrable Securities as such managing underwriter or
underwriters or such holders shall reasonably furnish to the Corporation in
writing and request be included therein, including, without limitation, with
respect to the number of Registrable Securities being sold by such holders to
such underwriter or underwriters, the purchase price being paid therefor by such
underwriter or underwriters and with respect to any other terms of the
underwritten offering of the Registrable Securities to be sold in such offering;
and make all required filings of such prospectus, supplement or post-effective
amendment as soon as possible after being notified of the matters to be
incorporated in such prospectus, supplement or post-effective amendment;
(vii) use its best efforts to register or qualify such
Registrable Securities under such securities or "blue sky" laws of such
jurisdictions as Fund IV or Additional Stockholders reasonably request and do
any and all other acts and things that may be reasonably necessary or advisable
to enable Fund IV or Additional Stockholders to consummate the disposition in
such jurisdictions of the Registrable Securities owned by them and keep such
registration or qualification in effect for so long as the registration
statement remains effective under the Securities Act (provided that the
Corporation shall not be required to (a) qualify generally to do business in any
jurisdiction in which it would not otherwise be required to qualify but for this
paragraph, (b) subject itself to taxation in any such jurisdiction in which it
would not otherwise be subject to taxation but for this paragraph or (c) consent
to the general service of process in any jurisdiction in which it would not
otherwise be subject to general service of process but for this paragraph);
(viii) notify each seller of such Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, upon the discovery that, or of the happening of any event as
a result of which, the registration statement covering such Registrable
Securities, as then in effect, contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or any fact
necessary to make the statements therein not misleading, and promptly prepare
and furnish to each such seller a supplement or amendment to the prospectus
contained in such registration statement so that such registration statement
shall not, and such prospectus as thereafter delivered to the purchasers of such
Registrable Securities shall not, contain an untrue statement of a material fact
or omit to state any material fact required to be stated therein or any fact
necessary to make the statements therein not misleading;
(ix) cause all such Registrable Securities to be listed on
the Nasdaq National Market or any other securities exchange and included in each
established over-the-counter market on which or through which similar securities
of the Corporation are listed or traded and, if not so listed or traded, to be
listed on the NASD automated quotation system ("Nasdaq") and, if listed on
Nasdaq, use its reasonable efforts to secure designation of all such
13
Registrable Securities covered by such registration statement as a Nasdaq
"national market system security" within the meaning of Rule 11Aa2-1 under the
Exchange Act, or, failing that, to secure Nasdaq authorization for such
Registrable Securities;
(x) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney, accountant or other
agent retained by any such seller or underwriter all financial and other
records, pertinent corporate documents and properties of the Corporation, and
cause the Corporation's officers, directors, employees, attorneys and
independent accountants to supply all information reasonably requested by any
such sellers, underwriters, attorneys, accountants or agents in connection with
such registration statement. Information that the Corporation determines, in
good faith, to be confidential shall not be disclosed by such persons unless (a)
the disclosure of such information is necessary to avoid or correct a
misstatement or omission in such registration statement, or (b) the release of
such information is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction. Each seller of Registrable Securities agrees, on its
own behalf and on behalf of all its underwriters, accountants, attorneys and
agents, that the information obtained by it as a result of such inspections
shall be deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Corporation unless and until such
is made generally available to the public. Each seller of Registrable Securities
further agrees, on its own behalf and on behalf of all its underwriters,
accountants, attorneys and agents, that it will, upon learning that disclosure
of such information is sought in a court of competent jurisdiction, give notice
to the Corporation and allow the Corporation, at its expense, to undertake
appropriate action to prevent disclosure of the information deemed confidential;
(xi) use its best efforts to comply with all applicable laws
related to such registration statement and offering and sale of securities and
all applicable rules and regulations of governmental authorities in connection
therewith (including, without limitation, the Securities Act and the Exchange
Act) and make generally available to its security holders as soon as practicable
(but in any event not later than fifteen (15) months after the effectiveness of
such registration statement) an earnings statement of the Corporation and its
subsidiaries complying with Section 11(a) of the Securities Act;
(xii) permit any seller of Registrable Securities that, in
its sole and exclusive judgment, might be deemed to be an underwriter or
controlling person of the Corporation to participate in the preparation of such
registration statement and to require the insertion therein of material
furnished to the Corporation in writing that in the reasonable judgment of such
holder and such holder's counsel should be included;
14
(xiii) use reasonable best efforts to furnish to each seller
of Registrable Securities a signed counterpart of (a) an opinion of counsel for
the Corporation and (b) a comfort letter signed by the independent public
accountants who have certified the Corporation's financial statements included
or incorporated by reference in such registration statement, covering such
matters with respect to such registration statement and, in the case of the
accountants' comfort letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' comfort letters delivered to the underwriters in
underwritten Public Offerings of securities for the account of, or on behalf of,
an issuer of common stock, such opinion and comfort letters to be dated the date
such opinions and comfort letters are customarily dated in such transactions,
and covering in the case of such legal opinion, such other legal matters and, in
the case of such comfort letter, such other financial matters, as Fund IV or
Additional Stockholders may reasonably request; and
(xiv) take all such other actions as Fund IV or Additional
Stockholders or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities.
(b) Underwriting. Without limiting any of the foregoing, in the
event that any offering of Registrable Securities is to be made by or through an
underwriter, the Corporation shall enter into an underwriting agreement with a
managing underwriter or underwriters containing representations, warranties,
indemnities and agreements customarily included (but not inconsistent with the
agreements contained herein) by an issuer of common stock in underwriting
agreements with respect to offerings of common stock for the account of, or on
behalf of, such issuers. In connection with the sale of Registrable Securities
hereunder, any seller of such Registrable Securities may, at its option, require
that any and all representations and warranties by, and indemnities and
agreements of, the Corporation to or for the benefit of such underwriter or
underwriters (or which would be made to or for the benefit of such an
underwriter or underwriter if such sale of Registrable Securities were pursuant
to a customary underwritten offering) be made to and for the benefit of such
seller and that any or all of the conditions precedent to the obligations of
such underwriter or underwriters (or which would be so for the benefit of such
underwriter or underwriters under a customary underwriting agreement) be
conditions precedent to the obligations of such seller in connection with the
disposition of its securities pursuant to the terms hereof (it being agreed that
in connection with any Demand Registration, without limiting any rights or
remedies of Fund IV or the Additional Stockholders, in the event any such
condition precedent shall not be satisfied and, if not so satisfied, shall not
be waived by Fund IV, such Demand Registration shall not be counted as a
permitted Demand Registration hereunder). In connection with any offering of
Registrable Securities registered pursuant to this Agreement, the Corporation
shall (i) furnish to the underwriter, if any (or, if no underwriter, the sellers
of such Registrable Securities), unlegended certificates representing ownership
of the Registrable Securities being sold, in such
15
denominations as requested and (ii) instruct any transfer agent and registrar of
the Registrable Securities to release any stop transfer order with respect
thereto.
(c) Return of Prospectuses. Each seller of Registrable Securities
hereunder agrees that upon receipt of any notice from the Corporation of the
happening of any event of the kind described in Section 4.05(a)(viii), such
seller shall forthwith discontinue such seller's disposition of Registrable
Securities pursuant to the applicable registration statement and prospectus
relating thereto until such seller's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 4.05(a)(viii) and, if so directed
by the Corporation, deliver to the Corporation all copies, other than permanent
file copies, then in such seller's possession of the prospectus current at the
time of receipt of such notice relating to such Registrable Securities. In the
event the Corporation shall give such notice, the ninety (90)-day period during
which such registration statement must remain effective pursuant to this
Agreement shall be extended by the number of days during the period from the
date of giving of a notice regarding the happening of an event of the kind
described in Section 4.05(a)(viii) to the date when all such sellers shall
receive such a supplemented or amended prospectus and such prospectus shall have
been filed with the Commission.
Section 4.06 Registration Expenses. All expenses incident to the
Corporation's performance of, or compliance with, its obligations under this
Agreement, including, without limitation, all registration and filing fees, all
fees and expenses of compliance with securities and "blue sky" laws (including,
without limitation, the fees and expenses of counsel for underwriters or
placement or sales agents, if any, in connection therewith), all printing and
copying expenses, all messenger and delivery expenses, all fees and expenses of
underwriters and sales and placement agents, if any, in connection therewith
(excluding discounts and commissions and the fees and expenses of counsel
therefor), all fees and expenses of the Corporation's independent certified
public accountants and counsel (including, without limitation, with respect to
"comfort" letters and opinions) (collectively, the "Registration Expenses")
shall be borne by the Corporation; provided, however, that in the case of a
Piggyback Registration, all incremental costs resulting from applicable federal
and "blue sky" registration and filing fees, National Association of Securities
Dealers, Inc. filing fees, the expenses and fees for listing the securities to
be registered on each securities exchange and included in each established
over-the-counter market on which similar securities issued by the Corporation
are then listed or traded or for listing on Nasdaq and underwriting discounts
and commissions allocable to each of Fund IV and any Additional Stockholder
selling Registrable Securities shall be borne by such stockholder. The
Corporation shall be responsible for the fees and expenses of one (1) legal
counsel retained by Fund IV in connection with the sale of Registrable
Securities. Notwithstanding the foregoing, the Corporation shall not be
responsible for the fees and expenses of any additional counsel, or any of the
accountants, agents or experts retained by Fund IV or the Additional
Stockholders in connection with the sale of Registrable Securities. The
Corporation will pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties, the expense of any annual audit and the expense of any
liability insurance) (collectively, "Internal Expenses") and,
16
except as otherwise provided in this Section 4.06, the expenses and fees for
listing the securities to be registered on each securities exchange and included
in each established over-the-counter market on which similar securities issued
by the Corporation are then listed or traded or for listing on Nasdaq.
Section 4.07 Indemnification.
(a) By the Corporation. The Corporation agrees to indemnify, to
the fullest extent permitted by law, each holder of Registrable Securities being
sold, its officers, directors, members, employees and agents and each Person who
controls (within the meaning of the Securities Act) such holder or such an other
indemnified Person against all losses, claims, damages, liabilities and expenses
(collectively, the "Losses") caused by, resulting from or relating to any untrue
or alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or a fact necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished to the Corporation in writing by or on behalf of such
holder expressly for use therein or by such holder's failure to deliver a copy
of the registration statement or prospectus or any amendments or supplements
thereto after the Corporation has furnished such holder with a sufficient number
of copies of the same. In connection with an underwritten offering and without
limiting any of the Corporation's other obligations under this Agreement, the
Corporation shall indemnify such underwriters, their officers, directors,
employees and agents and each Person who controls (within the meaning of the
Securities Act) such underwriters or such an other indemnified Person to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities being sold.
(b) By Holders of Registrable Securities. In connection with any
registration statement in which a holder of Registrable Securities is
participating, each such holder will furnish, or cause to be furnished, to the
Corporation in writing information regarding such holder's ownership of
Registrable Securities and its intended method of distribution thereof and, to
the extent permitted by law, shall indemnify the Corporation, its directors,
officers, employees and agents and each Person who controls (within the meaning
of the Securities Act) the Corporation or such an other indemnified Person
against all Losses caused by, resulting from or relating to any untrue or
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
caused by and contained in such information so furnished in writing by or on
behalf of such holder; provided, however, that each holder's obligation to
indemnify the Corporation hereunder shall be apportioned between each holder
based upon the net amount received by each holder from the sale of Registrable
Securities, as compared to the total net amount received by all of the holders
of Registrable Securities sold pursuant
17
to such registration statement, no such holder being liable to the Corporation
in excess of such apportionment.
(c) Notice. Any Person entitled to indemnification hereunder
shall give prompt written notice to the indemnifying party of any claim with
respect to which its seeks indemnification; provided, however, the failure to
give such notice shall not release the indemnifying party from its obligation,
except to the extent that the indemnifying party has been materially prejudiced
by such failure to provide such notice.
(d) Defense of Actions. In any case in which any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof the indemnifying party will not (so long as it shall
continue to have the right to defend, contest, litigate and settle the matter in
question in accordance with this paragraph) be liable to such indemnified party
hereunder for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, supervision and monitoring (unless such indemnified
party reasonably objects to such assumption on the grounds that there may be
defenses available to it which are different from or in addition to the defenses
available to such indemnifying party, in which event the indemnified party shall
be reimbursed by the indemnifying party for the expenses incurred in connection
with retaining separate legal counsel). An indemnifying party shall not be
liable for any settlement of an action or claim effected without its consent.
The indemnifying party shall lose its right to defend, contest, litigate and
settle a matter if it shall fail diligently to contest such matter (except to
the extent settled in accordance with the next following sentence). No matter
shall be settled by an indemnifying party without the consent of the indemnified
party (which consent shall not be unreasonably withheld).
(e) Survival. The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified Person and will survive the transfer of
the Registrable Securities and the termination of this Agreement until the
expiration of all applicable statutes of limitations.
(f) Contribution. If recovery is not available under the
foregoing indemnification provisions for any reason or reasons other than as
specified therein, any Person who would otherwise be entitled to indemnification
by the terms thereof shall nevertheless be entitled to contribution with respect
to any Losses with respect to which such Person would be entitled to such
indemnification but for such reason or reasons. In determining the amount of
contribution to which the respective Persons are entitled, there shall be
considered the Persons' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the
18
opportunity to correct and prevent any statement or omission, and other
equitable considerations appropriate under the circumstances. It is hereby
agreed that it would not necessarily be equitable if the amount of such
contribution were determined by pro rata or per capita allocation. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not found guilty of such fraudulent misrepresentation. Notwithstanding the
foregoing, neither Fund IV nor any Additional Stockholder shall be required to
make a contribution in excess of the net amount received by such holder from the
sale of Registrable Securities.
ARTICLE V
Miscellaneous
Section 5.01 Inconsistent Agreements. Without the prior written
consent of Fund IV, the Corporation shall not enter into any registration rights
agreement that conflicts, or is inconsistent, with the provisions of Article IV
of this Agreement.
Section 5.02 Specific Performance. Each of the Stockholders
acknowledges and agrees that in the event of any breach of this Agreement, the
non-breaching party or parties would be irreparably harmed and could not be made
whole solely by monetary damages. The Stockholders hereby agree that, in
addition to any other remedy to which any party may be entitled at law or in
equity, they shall be entitled to compel specific performance of this Agreement
in any action instituted in any court of the United States or any state thereof
having subject matter jurisdiction for such action.
Section 5.03 Headings. The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or
construction of any provisions hereof.
Section 5.04 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, and there are no restrictions, promises,
representations, warranties, covenants, conditions or undertakings with respect
to the subject matter hereof, other than those expressly set forth or referred
to herein. This Agreement supersedes all prior agreements and understandings
between the parties hereto with respect to the subject matter hereof, including
the Original Agreement.
Section 5.05 Notices. All notices and other communications required or
permitted to be given hereunder shall be in writing and shall be (i) delivered
by hand, (ii) delivered by a nationally recognized commercial overnight delivery
service, (iii) mailed postage prepaid by first class mail, or (iv) transmitted
by facsimile transmission at the address or telecopier number set forth below.
Such notices shall be effective: (A) in the case of hand deliveries when
received; (B) in the case of an overnight delivery service, on the next business
day after being placed in the possession of such delivery service, with delivery
charges prepaid; (C) in the case of mail, seven (7) days after deposit in the
19
postal system, first class mail, postage prepaid; and (D) in the case of
facsimile notices, when electronic confirmation of receipt is received by the
sender. Any party may change its address and telecopy number by written notice
to the other given in accordance with this Section 5.05.
If to the Corporation, to:
PGT, Inc.
1070 Technology Drive
Nokomis, FL 34275
Attention: Mario Ferrucci III
Facsimile: (941) 480-2767
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Rodney Square
Wilmington, DE 19801
Attention: Robert B. Pincus, Esq.
Fax: (302) 651-3001
If to JLL Fund IV, L.P., to:
JLL Partners Fund IV, L.P.
450 Lexington Avenue, Suite 3350
New York, NY 10017
Attention: Ramsey A. Frank
Facsimile: (212) 286-8626
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Rodney Square
Wilmington, DE 19801
Attention: Robert B. Pincus, Esq.
Fax: (302) 651-3001
If to any of the Management Investors, at the address set forth on the
Corporation's transfer books. If to any of the Additional Stockholders, at the
address furnished to the Corporation by such Additional Stockholder at the time
it becomes a signatory to this Agreement.
Section 5.06 Applicable Law. The substantive laws of the State of
Delaware shall govern the interpretation, validity and performance of the terms
of this Agreement, regardless of the law that might be applied under applicable
principles of conflicts of laws. THE PARTIES HERETO WAIVE THEIR RIGHT TO A JURY
20
TRIAL WITH RESPECT TO DISPUTES HEREUNDER; ALL SUCH DISPUTES SHALL BE SETTLED BY
BINDING ARBITRATION PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION
ASSOCIATION IN NEW YORK, NEW YORK, AND THE ORDER OF SUCH ARBITRATORS SHALL BE
FINAL AND BINDING ON ALL PARTIES HERETO AND MAY BE ENTERED AS A JUDGMENT IN A
COURT HAVING JURISDICTION OVER THE PARTIES.
Section 5.07 Severability. The invalidity, illegality or
unenforceability of one or more of the provisions of this Agreement in any
jurisdiction shall not affect the validity, legality or enforceability of the
remainder of this Agreement in such jurisdiction or the validity, legality or
enforceability of this Agreement, including, without limitation, any such
provision, in any other jurisdiction, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the fullest extent
permitted by law.
Section 5.08 Successors; Assigns; Third-Party Beneficiaries. The
provisions of this Agreement shall be binding upon the parties hereto and their
respective heirs, successors and permitted assigns. Fund IV may assign all or
any portion of its rights hereunder in connection with the transfer by Fund IV
of Shares to a Permitted Transferee. The parties acknowledge and agree that in
the event of any such assignment by Fund IV, all references to Fund IV hereunder
shall be deemed to include such Permitted Transferee to the extent the
applicable rights have been assigned, in whole or in part, to such Permitted
Transferee. This Agreement is for the sole benefit of the parties hereto and
their respective heirs, successors and permitted assigns and no provision
hereof, whether express or implied, is intended, or shall be construed, to give
any other Person any other rights or remedies, whether legal or equitable,
hereunder.
Section 5.09 Amendments. This Agreement may not be amended, modified
or supplemented unless such modification is in writing and signed by (a) the
Corporation and (b) Fund IV.
Section 5.10 Waiver. Any waiver (express or implied) of any default or
breach of this Agreement shall not constitute a waiver of any other or
subsequent default or breach.
Section 5.11 Counterparts. This Agreement may be executed in two or
more counterparts (including by facsimile), each of which shall be deemed an
original but all of which shall constitute one and the same Agreement.
Section 5.12 Term. This Agreement shall be subject to, and shall be
effective immediately prior to, the consummation of the Initial Public Offering.
As of the time that this Agreement becomes effective, the Original Agreement
shall immediately terminate and all rights and obligations thereunder shall be
of no further force and effect, except that such termination of the Original
Agreement shall not relieve any Stockholder from liability for any breach of the
Original Agreement occurring prior to such termination. In the event that the
Initial Public Offering is not consummated, this
21
Agreement shall not become effective, and the Original Agreement shall continue
in full force and effect. Unless earlier terminated, this Agreement shall
terminate upon the seventh anniversary of the consummation of the Initial Public
Offering; provided, however, that the provisions of Section 4.07 shall survive
termination until the expiration of all applicable statutes of limitations; and
provided further that, to the extent that any Demand Registration or Piggyback
Registration has commenced at such time, this Agreement shall remain in effect
until the termination or expiration of such Demand Registration or Piggyback
Registration, as the case may be, and the obligations of Fund IV and the
Additional Stockholders pursuant to Section 4.04 hereof shall continue until 90
days following the effectiveness of the Registration Statement related thereto.
[SIGNATURE PAGES FOLLOW]
22
IN WITNESS WHEREOF, the undersigned hereby agree to be bound by the
terms and provisions of this Amended and Restated Security Holders' Agreement as
of the date first above written.
PGT, INC.
By: /s/ Jeffrey T. Jackson
------------------------------------
Name: Jeffrey T. Jackson
----------------------------------
Title: Chief Financial Officer and
Treasurer
---------------------------------
JLL PARTNERS FUND IV, L.P.
By: /s/ Paul S. Levy
------------------------------------
Name: Paul S. Levy
----------------------------------
Title: Managing Member
---------------------------------
MANAGEMENT INVESTORS:
/s/ Rodney Hershberger
----------------------------------------
Name: Rodney Hershberger
/s/ Jeffrey T. Jackson
----------------------------------------
Name: Jeffrey T. Jackson
/s/ Herman W. Moore
----------------------------------------
Name: Herman W. Moore
/s/ Bruce W. Varnadore
----------------------------------------
Name: Bruce W. Varnadore
/s/ Linda Gavit
----------------------------------------
Name: Linda Gavit
/s/ John I. Rankin
----------------------------------------
Name: John I. Rankin
/s/ Robert B. McCutcheon
----------------------------------------
Name: Robert B. McCutcheon
/s/ Bradford J. Voss
----------------------------------------
Name: Bradford J. Voss
/s/ Deborah L. LaPinska
----------------------------------------
Name: Deborah L. LaPinska
24
/s/ Randy L. White
----------------------------------------
Name: Randy L. White
/s/ David McCutcheon
----------------------------------------
Name: David McCutcheon
/s/ Julie A. Heinsman
----------------------------------------
Name: Julie A. Heinsman
/s/ Kevin Harris
----------------------------------------
Name: Kevin Harris
/s/ Todd Waggoner
----------------------------------------
Name: Todd Waggoner
/s/ Cara L. Dohnalek
----------------------------------------
Name: Cara L. Dohnalek
/s/ Brad Beachy
----------------------------------------
Name: Brad Beachy
/s/ William I. White
----------------------------------------
Name: William I. White
/s/ Kenneth W. Hilliard
----------------------------------------
Name: Kenneth W. Hilliard
25
/s/ Gretchen Reimanl-Moussa
----------------------------------------
Name: Gretchen Reimal-Moussa
/s/ Debra Madison
----------------------------------------
Name: Debra Madison
/s/ Jeffrey Slabach
----------------------------------------
Name: Jeffrey Slabach
/s/ Gary Stokes
----------------------------------------
Name: Gary Stokes
/s/ James Cassidy
----------------------------------------
Name: James Cassidy
/s/ Samuel Bryant
----------------------------------------
Name: Samuel Bryant
/s/ David Olmstead
----------------------------------------
Name: David Olmstead
/s/ Monte Burns
----------------------------------------
Name: Monte Burns
26