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): November 5, 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))
This Current Report on Form 8-K contains forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995 regarding future
events and our future results that are based on current expectations, estimates,
forecasts, and projections about the industries in which we operate and the
beliefs and assumptions of our management. Forward-looking statements include
Headwaters' expectations as to the managing and marketing of coal combustion
products, operations of facilities utilizing alternative fuel technologies, the
marketing of synthetic fuels, the availability of tax credits, the availability
of feed stocks, the receipt of licensing fees, royalties, and product sales
revenues, the development, commercialization, and financing of new technologies
and other strategic business opportunities and acquisitions, including without
limitation, other information about Headwaters. Actual results may vary
materially from such expectations. Words such as "expects," "anticipates,"
"targets," "goals," "projects," "believes," "seeks," "estimates," variations of
such words and similar expressions are intended to identify such forward-looking
statements. In addition, any statements that refer to projections of our future
financial performance, our anticipated growth and trends in our businesses, and
other characterizations of future events or circumstances, are forward-looking.
For a discussion of the factors that could cause actual results to differ from
expectations, please see the captions entitled "Forward-looking Statements" and
"Risk Factors" in Item 7 of our Form 10-K for the year ended September 30, 2003,
and the Risk Factors described in Item 5 of our Form 8-K dated May 25, 2004 and
in our Form S-3/A filed on October 26, 2004. There can be no assurance that our
results of operations will not be adversely affected by such factors. Unless
legally required, we undertake no obligation to revise or update any
forward-looking statements for any reason. Readers are cautioned not to place
undue reliance on these forward-looking statements, which speak only as of the
date of the applicable report.
Item 2.02. Results of Operations and Financial Condition.
On November 10, 2004, we issued our September 30, 2004 earnings press
release. A copy of that press release is attached hereto as Exhibit 99.1. The
information in Item 2.02 of this Current Report, including Exhibit 99.1 attached
hereto, is being furnished and shall not be deemed "filed" for the purposes of
Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise
subject to the liabilities of that Section. The information in Item 2.02 of this
Current Report, including Exhibit 99.1 attached hereto, shall not be
incorporated by reference into any registration statement or other document
filed pursuant to the Securities Act of 1933, except as shall be expressly set
forth by specific reference in such a filing.
Item 5.02. Departure of Directors or Principal Officers; Election of Directors;
Appointment of Principal Officers.
On November 5, 2004 the Board of Directors accepted the nomination of
its Nominating and Corporate Governance Committee and adopted a resolution
appointing Blake O. Fisher, Jr. as a director of Headwaters Incorporated. The
Board also appointed Mr. Fisher to serve on its Audit Committee and Compensation
Committee. The following is biographical information on Mr. Fisher:
Blake O. Fisher, Jr., age 60, is currently involved in management and
financial consulting to the telecommunications and utility industries. He is a
consultant on financial issues to the USDA on Rural Utilities Service's
broadband program. From May 2004 to the present he has served as chief financial
officer for Fiber Utilities of Iowa, an entity that provides operation and
construction services to municipal utilities. In May of 2002, Mr. Fisher retired
from McLeod USA, a telecommunications provider. From February 1996 to May 2002,
he held senior management positions with McLeod USA, initially as Chief
Financial Officer, then President of the company's Western region and as Chief
Development Officer. From 1991 until February of 1996 Mr. Fisher was Chief
Financial Officer of IES Industries, an energy holding company. Prior to that
Mr. Fisher spent 23 years in several management positions with Consumer Power
Company, headquartered in Michigan.
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Item 7.01. Regulation FD Disclosure.
To supplement our consolidated financial statements presented in
accordance with generally accepted accounting principles ("GAAP"), we use a
non-GAAP measure that we refer to as EBITDA. We define EBITDA as net income
adjusted to exclude depreciation, amortization, net interest expense and income
taxes. EBITDA has been reconciled to net income. EBITDA is provided to enhance
the user's overall understanding of our current financial performance, our
ability to service our debt, our compliance with current debt covenants and our
ability to fund future growth. Specifically, we believe EBITDA provides useful
information to management, investors and debt holders and is a financial measure
used by the financial markets and rating agencies to analyze and compare
companies on the basis of operating performance and liquidity. Maintenance of
certain EBITDA measures are required under our Credit Facilities. EBITDA should
be considered in addition to results prepared in accordance with GAAP, but
should not be considered a substitute for or superior to GAAP results and may
not be comparable with similarly titled measures reported by other companies.
We have provided EBITDA in the press release at Exhibit 99.1. Certain
of our debt covenants require the calculation of EBITDA and we believe this
measure provides creditors and investors with another tool to evaluate our
ability to repay debt.
The information in Item 7.01 of this Current Report, including Exhibit
99.1 attached hereto, is being furnished and shall not be deemed "filed" for the
purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or
otherwise subject to the liabilities of that Section. The information in Item
7.01 of this Current Report, including Exhibit 99.1 attached hereto, shall not
be incorporated by reference into any registration statement or other document
filed pursuant to the Securities Act of 1933, except as shall be expressly set
forth by specific reference in such a filing.
Item 9.01. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit 99.1: Press release announcing Headwaters'
financial results for the year ended
September 30, 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: November 10, 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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