As filed with the Securities and Exchange Commission on March 19, 2004.
Registration No. 333-113704
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Amendment No. 1
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
HEADWATERS INCORPORATED
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 87-0547337
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
10653 South River Front Parkway, Suite 300
South Jordan, Utah 84095
(801) 984-9400
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(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
HEADWATERS INCORPORATED 2003 STOCK INCENTIVE PLAN
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(Full title of the plan)
Kirk A. Benson
CEO and Chairman of the Board of Directors
10653 South River Front Parkway, Suite 300
South Jordan, Utah 84095
(801) 984-9400
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copy to:
Harlan M. Hatfield
Headwaters Incorporated
10653 South River Front Parkway, Suite 300
South Jordan, Utah 84095
(801) 984-9400
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CALCULATION OF REGISTRATION FEE
________________________________________________________________________________________________________________________________
Title of Amount Proposed Maximum Proposed Amount of
Securities To To Be Offering Price Maximum Aggregate Registration
Be Registered Registered (1) per Share Offering Price Fee
_______________________________________________________________________________________________________________________________
Common Stock
par value $0.001 per share 2,500,000 (2) $23.39 (3) $58,475,000 (3) $-- (4)
________________________________________________________________________________________________________________________________
(1) Pursuant to Rule 416, this Registration Statement shall also cover
any additional shares of Registrant's common stock that become
issuable under the Headwaters Incorporated 2003 Stock Incentive Plan
by reason of any stock dividend, stock split, recapitalization or
other similar transaction effected without the receipt of
consideration that increases the number of Registrant's outstanding
shares of common stock.
(2) The 2,500,000 shares of common stock, par value $0.001 per share, of
Headwaters Incorporated (the "Common Stock") stated above consists of
the aggregate number of shares which may be sold under the Headwaters
Incorporated 2003 Stock Incentive Plan.
(3) Estimated solely for the purpose of computing the registration fee
required by Section 6(b) of the Securities Act of 1933. Calculated in
accordance with Rule 457(c) and Rule 457(h) on the basis of the
average of the high and low prices as of March 16, 2004 of the
Registrant's Common Stock as reported on the Nasdaq National Market.
(4) Fee paid previously.
_________________
The Registration Statement shall become effective upon filing in
accordance with Rule 462 under the Securities Act of 1933.
________________________________________________________________________________________________________________________________
NOTE: This amendment is filed for the sole purpose of filing exhibit no. 99.1
which was omitted from the original Form S-8 filing on March 18, 2004.
Item 8. Exhibits
Exhibit
Number Exhibit
- ------ -------
5.1* Opinion of Harlan M. Hatfield regarding legality of securities to be
offered.
23.1* Consent of Ernst & Young LLP, Independent Auditors.
23.2* Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.3 Consent of Harlan M. Hatfield (included in Exhibit 5.1).
24.1 Power of Attorney (included in Part II of this Registration Statement).
99** 2003 Stock Incentive Plan, incorporated by reference from Exhibit 99.7
to Headwaters' Annual Report on Form 10-K for the year ended September
30, 2003, filed December 8, 2003.
99.1* Amendment No. 1 to 2003 Stock Incentive Plan, dated 20 January 2004.
________________
* Filed herewith.
** Filed previously.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of South Jordan, State of Utah on March 19, 2004.
HEADWATERS INCORPORATED
By: /s/ Kirk A. Benson
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Chief Executive Officer, Chairman
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
in so signing also makes, constitutes and appoints Harlan M. Hatfield as true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to execute and cause to be filed with the Securities and Exchange
Commission any and all amendments (including pre-effective and post-effective
amendments) to this Registration Statement, with exhibits thereto and other
documents in connection therewith, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully as to all
intents and purposes as he might or could do in person, and hereby ratifies and
confirms said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE
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/s/ Kirk A. Benson Director and Chief Executive Officer March 19, 2004
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Kirk A. Benson
/s/ Steven G. Stewart Chief Financial Officer (Principal March 19, 2004
- ------------------------- Financial and Accounting Officer)
Steven G. Stewart
/s/ James A. Herickhoff Director March 19, 2004
- -------------------------
James A. Herickhoff
/s/ Raymond J. Weller Director March 19, 2004
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Raymond J. Weller
/s/ E. J. "Jake" Garn Director March 19, 2004
- -------------------------
E. J. "Jake" Garn
/s/ R. Sam Christensen Director March 19, 2004
- -------------------------
R. Sam Christensen
/s/ William S. Dickinson Director March 19, 2004
- -------------------------
William S. Dickinson
/s/ Malyn K. Malquist Director March 19, 2004
- -------------------------
Malyn K. Malquist
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------ -------
5.1 Opinion of Harlan M. Hatfield regarding legality of securities to be
offered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.3 Consent of Harlan M. Hatfield (included in Exhibit 5.1).
24.1 Power of Attorney (included in Part II of this Registration Statement).
99 2003 Stock Incentive Plan, incorporated by reference from Exhibit 99.7
to Headwaters' Annual Report on Form 10-K for the year ended September
30, 2003, filed December 8, 2003.
99.1 Amendment No. 1 to 2003 Stock Incentive Plan, dated 20 January 2004.