UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 22, 2004
Headwaters Incorporated
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(Exact name of registrant as specified in its charter)
Delaware 0-27808 87-0547337
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification Number)
10653 South River Front Parkway, Suite 300
South Jordan, UT 84095
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (801) 984-9400
Not Applicable
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(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On September 22, 2004, Tapco International Corporation ("Tapco"), a
wholly-owned subsidiary of Headwaters Incorporated ("Headwaters"), entered into
an executive employment agreement and an executive change in control agreement
with John N. Lawless, III, as President of Tapco. As part of the employment
agreement, Headwaters has agreed to enter into an executive change in control
agreement with Mr. Lawless having an effect date as of September 22, 2004. Mr.
Lawless was the former president of Tapco Holdings, Inc., which Headwaters
acquired on September 8, 2004. In connection with the acquisition and as an
inducement to Mr. Lawless to accept employment with Tapco, on September 9, 2004,
Headwaters announced that its compensation committee had approved a grant to Mr.
Lawless of an option to purchase 125,000 shares of Headwaters common stock.
Effectiveness of the option grant was subject to Headwaters, Tapco and Mr.
Lawless agreeing to the terms of his employment agreement with Tapco.
Accordingly, on September 22, 2004, the grant of the option became effective.
The option vests over approximately four and one-half years and has an exercise
price equal to $28.49 per share. Under the terms of the employment agreement,
Mr. Lawless is entitled to severance pay and benefits in the event that his
employment is terminated without cause by Tapco (or its successor) or is
voluntarily terminated for good reason by Mr. Lawless. Further, under the terms
of the change in control agreement and the option, the shares subject to the
option granted to Mr. Lawless would become fully vested and exercisable in the
event of a change in control of Headwaters as described in the change in control
agreement, and Mr. Lawless would be entitled to severance pay and benefits in
the event that his employment is involuntarily terminated without cause by
Headwaters (or its successor) or is voluntarily terminated for good reason by
Mr. Lawless within a certain period following a change in control of Headwaters.
Copies of Mr. Lawless' employment agreement, stock option agreement and change
in control agreement are filed as Exhibits 10.90, 10.90.1 and 10.90.2 hereto.
Item 9.01: Financial Statements and Exhibits.
(c) Exhibits.
Exhibit 10.90: Employment Agreement with John N. Lawless,
III dated September 22, 2004
Exhibit 10.90.1: Nonstatutory Stock Option Grant Notice
effective as of September 22, 2004
Exhibit 10.90.2: Executive Change in Control Agreement with
John N. Lawless, III effective as of
September 22, 2004
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: September 28, 2004 HEADWATERS INCORPORATED
(Registrant)
By /s/ Kirk A. Benson
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Kirk A. Benson
Chief Executive Officer
(Principal Executive Officer)
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