As Filed with the Securities and Exchange Commission on July 6, 2006
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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PGT, INC.
(Exact name of registrant as specified in its charter)
Delaware 20-0634715
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
1070 Technology Drive
North Venice, Florida 34275
(941) 480-1600
(Address, including zip code, and telephone number
of registrant's principal executive offices)
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PGT, INC. 2004 STOCK INCENTIVE PLAN
PGT, INC. 2006 EQUITY INCENTIVE PLAN
(Full titles of the plans)
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Mario Ferrucci III, Esq.
Corporate Counsel
PGT, INC.
1070 Technology Drive
North Venice, Florida 34275
(Name and address of agent for service)
(941) 480-1600
(Telephone number, including area code, of agent for service)
It is respectfully requested that the Commission also send copies of all
notices, orders and communications to:
Robert B. Pincus, Esq.
Allison Land Amorison, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
One Rodney Square
Wilmington, Delaware 19801
(302) 651-3000
CALCULATION OF REGISTRATION FEE
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Title of Securities Proposed Maximum Proposed Maximum
To Be Amount To Be Offering Price Aggregate Offering Amount of
Registered Registered(1) Per Share Price Registration Fee
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Common stock, par value
$.01 per share (the
"Common Stock") for:
PGT, Inc. 2006 Equity 172,138 (2) $14.00 $2,409,932 $257.86 (3)
Incentive Plan
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PGT, Inc. 2006 Equity 2,802,149 (2) $16.02 $44,890,426.98 $4803.28 (3)
Incentive Plan
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PGT, Inc.
2004 Stock Incentive 2,037,632 (4) $9.01 $18,359,064.32 $1964.42(5)
Plan
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Total 5,011,919 --- $65,659,423.30 $7025.56(6)
==============================================================================================================
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the "Securities Act"), this
Registration Statement also registers any additional shares of the common stock, par value $.01 per share
(the "Common Stock"), of PGT, Inc., a Delaware corporation (the "Company"), as may become issuable
pursuant to the anti-dilution provisions of the Company's plans herein described.
(2) Represents an aggregate of 2,974,287 shares of Common Stock to be issued pursuant to the exercise and/or
vesting of awards to employees under the PGT, Inc. 2006 Equity Incentive Plan.
(3) Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the proposed maximum offering price per
share, the proposed maximum aggregate offering price and the amount of the registration fee are based on
the weighted average exercise price at which outstanding options may be exercised (with respect to the
172,138 shares of Common Stock underlying options granted) and the average of the high and low prices of
the Common Stock of the Company on July 3, 2006 on the Nasdaq National Market (with respect to the
2,802,149 shares remaining in the PGT, Inc. 2006 Equity Incentive Plan that are not subject to
outstanding awards).
(4) Represents an aggregate of 2,037,632 shares of Common Stock to be issued pursuant to the exercise and/or
vesting of awards to employees under the PGT, Inc. 2004 Stock Incentive Plan.
(5) Pursuant to Rule 457(h) of the Securities Act, the proposed maximum offering price per share, the
proposed maximum aggregate offering price and the amount of the registration fee are based on the
weighted average exercise price per share at which outstanding options may be exercised.
(6) A portion of the filing fee is from an offset in the amount of $4349 from a filing fee paid by the Company
(i) on March 13, 2006 in the amount of $16,050 and (ii) on June 27, 2006 in the amount of $3500 in connection
with the Company's Registration Statement on Form S-1 (Registration No. 333-132365).
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
(a) The documents constituting Part I of this Registration Statement
will be sent or given to participants in the PGT, Inc. 2004 Stock Incentive
Plan , as amended, and the PGT, Inc. 2006 Equity Incentive Plan as specified by
Rule 428(b)(1) under the Securities Act. The Part I Information is not filed
with the Securities and Exchange Commission (the "Commission") either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to the note to Part I of Form S-8.
(b) Upon written or oral request, the Company will provide, without
charge, the documents incorporated by reference in Item 3 of Part II of this
Registration Statement. The documents are incorporated by reference in the
Section 10(a) prospectus. The Company will also provide, without charge, upon
written or oral request, other documents required to be delivered to employees
pursuant to Rule 428(b). Requests for the above-mentioned information should be
directed to Mario Ferrucci III, Esq., the Company's Corporate Counsel and
Secretary, at the address and telephone number on the cover of this
Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or the Securities Act are hereby incorporated by reference into this
Registration Statement:
(a) the Company's prospectus filed with the Commission on June 29,
2006 pursuant to Rule 424(b) under the Securities Act and forming a part of the
Company's Registration Statement on Form S-1 (Registration No. 333-132365),
which prospectus contains audited financial statements for the Company's latest
fiscal year for which such statements have been filed;
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 2005; and
(c) the description of the Company's Common Stock which is contained
in the Company's Registration Statement on Form 8-A filed with the Commission
on June 16, 2006 (File No. 000-52059) under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents filed or subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to filing a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities offered hereby then
remaining unsold, shall be deemed to be incorporated by reference herein and
shall be deemed to be a part hereof from the date of the filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified, superseded or
replaced by a statement or information contained in any other subsequently
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filed document incorporated herein by reference. Any such statement so
modified, superseded or replaced shall not be deemed, except as so modified,
superseded or replaced, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides, in summary, that directors and officers of Delaware corporations are
entitled, under certain circumstances, to be indemnified against all expenses
and liabilities (including attorneys' fees) incurred by them as a result of
suits brought against them in their capacity as directors or officers, if they
acted in good faith and in a manner they reasonably believed to be in or not
opposed to our best interests, and, with respect to any criminal action or
proceeding, if they had no reasonable cause to believe their conduct was
unlawful; provided that no indemnification may be made against expenses in
respect of any claim, issue, or matter as to which they shall have been
adjudged to be liable to us, unless and only to the extent that the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, they are fairly and reasonably entitled to indemnity for such
expenses as the court shall deem proper. Any such indemnification may be made
by us only as authorized in each specific case upon a determination by the
stockholders, disinterested directors or independent legal counsel that
indemnification is proper because the indemnitee has met the applicable
standard of conduct.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for any breach
of the director's duty of loyalty to the corporation or its stockholders, for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, for unlawful payments of dividends or unlawful
stock repurchases, redemptions or other distributions, or for any transaction
from which the director derived an improper personal benefit.
Our amended and restated certificate of incorporation and amended and
restated by-laws provide that we shall indemnify our directors and officers to
the fullest extent permitted by law and that no director shall be liable for
monetary damages to us or our stockholder for any breach of fiduciary duty,
except to the extent provided by applicable law. We have entered into
indemnification agreements with our directors. The indemnification agreements
provide indemnification to our directors under certain circumstances for acts
or omissions that may not be covered by directors' and officers' liability
insurance and may, in some cases, be broader than the specific indemnification
provisions contained under Delaware law. We currently maintain liability
insurance for our directors and officers.
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Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed in the Exhibit Index, which is incorporated herein
by reference, are filed as part of this Registration Statement.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the Registration Statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
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(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(signatures on following page)
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of North Venice, State of
Florida, on this 6th day of July, 2006.
Date: July 6, 2006 PGT, INC.
By: /s/ Rodney Hershberger
------------------------
Name: Rodney Hershberger
Title: President and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
authorizes Mario Ferrucci III, Esq., as his attorney in fact and agent, with
full power of substitution and resubstitution, to execute, in his name and on
his behalf, in any and all capacities, this Registration Statement on Form S-8
and any amendments thereto (and any additional registration statement related
thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933
(and all further amendments including post-effective amendments thereto))
necessary or advisable to enable the Registrant to comply with the Securities
Act, and any rules, regulations and requirements of the Commission, in respect
thereof, in connection with the registration of the securities which are the
subject of such Registration Statement, which amendments may make such changes
in such Registration Statement as such attorney may deem appropriate, and with
full power and authority to perform and do any and all acts and things
whatsoever which any such attorney or substitute may deem necessary or
advisable to be performed or done in connection with any or all of the
above-described matters, as fully as each of the undersigned could do if
personally present and acting, hereby ratifying and approving all acts of any
such attorney or substitute.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on behalf of
the Registrant in the capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ Rodney Hershberger President, Chief Executive Officer, and July 6, 2006
---------------------- Director (Principal Executive Officer and
Rodney Hershberger Director)
/s/ Jeffrey T. Jackson Chief Financial Officer and Treasurer July 6, 2006
---------------------- (Principal Financial Officer and Principal
Jeffrey T. Jackson Accounting Officer)
/s/ Alexander R. Castaldi Director July 6, 2006
-------------------------
Alexander R. Castaldi
/s/ Richard D. Feintuch Director July 6, 2006
-----------------------
Richard D. Feintuch
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/s/ Ramsey A. Frank Director July 6, 2006
-------------------
Ramsey A. Frank
/s/ Paul S. Levy Director July 6, 2006
----------------
Paul S. Levy
/s/ Brett N. Milgrim Director July 6, 2006
--------------------
Brett N. Milgrim
/s/ Floyd F. Sherman Director July 6, 2006
--------------------
Floyd F. Sherman
/s/ Randy L. White Director July 6, 2006
------------------
Randy L. White
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EXHIBIT INDEX
4.1 Amended and Restated Certificate of Incorporation of PGT, Inc.
(incorporated herein by reference to Exhibit 3.1 to Amendment
No. 3 to the Registration Statement of the Company on Form S-1,
filed with the Securities and Exchange Commission on June 8,
2006, Registration No. 333-132365).
4.2 Amended and Restated By-Laws of PGT, Inc. (incorporated herein
by reference to Exhibit 3.2 to Amendment No. 3 to the
Registration Statement of the Company on Form S-1, filed with
the Securities and Exchange Commission on June 8, 2006,
Registration No. 333-132365).
4.3 Specimen Certificate of the Company's Common Stock, par value
$0.01 per share (incorporated herein by reference to Exhibit 4.1
to Amendment No. 2 to the Registration Statement of the Company
on Form S-1, filed with the Securities and Exchange Commission
on May 25, 2006, Registration No. 333-132365).
4.4 Form of Amended and Restated Security Holders Agreement, by and
among PGT, Inc., JLL Partners Fund IV, L.P. and the stockholders
named therein, (incorporated herein by reference to Exhibit 4.2
to the Company's Amendment No. 3 to the Registration Statement
of the Company on Form S-1, filed with the Securities and
Exchange Commission on June 8, 2006, Registration No.
333-132365).
5.1* Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding
the legality of the securities being registered.*
23.1* Consent of Ernst & Young LLP.*
23.2* Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
the opinion filed as Exhibit 5.1 hereto).*
24.1* Power of Attorney (included on signature page).*
-------------------------
* Filed herewith.
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