Exhibit 99.14
HEADWATERS INCORPORATED
[______] STOCK INCENTIVE PLAN
NOTICE OF STOCK APPRECIATION RIGHT GRANT
[Employee's Name and Address]
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Headwaters Incorporated (the "Company") has granted to you a Stock Appreciation
Right ("SAR") based on the Fair Market Value of the common stock of the Company
under the Headwaters Incorporated [____] Stock Incentive Plan (the "Plan") as
follows. Each of the capitalized terms herein shall have the meaning given it by
the Plan except if the context of such term herein clearly assumes a different
meaning.
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Date of Grant
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Total Number of Shares Covered By this SAR (Number of
SAR Units)
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Exercise Base Price Per Share of Common Stock
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Expiration Date
1. Exercise of the SAR. Subject to the provisions of the Plan, you shall have
the right to exercise the SAR in whole or in part and to receive payment with
respect to each SAR Unit in the form of shares of the common stock of the
Company with a Fair Market Value equal to the difference between (i) the lesser
of the Fair Market Value per share of the common stock of the Company on the
date of exercise or $_______,(1) less (ii) the Exercise Base Price per share of
the common stock of the Company ("Distributable Amount"). Notwithstanding the
foregoing, no fractional share shall be distributed in settlement of the SAR,
and any exercised portion of the SAR which would be settled in a fractional
share shall be rounded down to a whole share with no additional payment to be
made in cash except as otherwise permitted by the Internal Revenue Service under
an exemption from the application of Section 409A of the Internal Revenue Code.
2. Exercise Base Price. The Exercise Base Price per share of common stock shall
not be less than the Fair Market Value of the common stock of the Company on the
Date of Grant.
3. Vesting. The SAR shall be fully vested and exercisable on the Date of Grant.
4. Exercise Period. The SAR may be exercised by you for the period of your
employment with the Company or its subsidiary and three (3) months after the
termination of your employment with the Company (but in no event later than the
Expiration Date), provided, that your employment is not terminated for "Cause."
The SAR shall terminate immediately upon the termination of your employment for
"Cause" (as defined in the Stock Appreciation Right Agreement a copy of which is
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(1) Dollar figure to be set equal to two times the Exercise Base Price.
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attached hereto), as determined by the Board of Directors of the Company with or
without notice to you. Upon the termination of your employment with the Company
or its subsidiary due to your Disability (as defined in the Stock Appreciation
Right Agreement a copy of which is attached hereto) or death, this SAR may be
exercised by you or your probate estate (if applicable) for the period of twelve
(12) months after your termination of employment with the Company with the
Company.
By your signature and the signature of the Company's representative below, you
and the Company agree that this SAR is granted under and governed by the terms
and conditions of the Plan, this Notice of Stock Appreciation Right Grant, and
the attached Stock Appreciation Right Agreement, copies of all of which are
attached and made a part of this instrument.
GRANTEE HEADWATERS INCORPORATED
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Signature Signature
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Name Printed Name
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Title
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EXHIBIT A
HEADWATERS INCORPORATED
[_________ ] STOCK INCENTIVE PLAN
PLAN DOCUMENT
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EXHIBIT B
HEADWATERS INCORPORATED
[_______] STOCK INCENTIVE PLAN
STOCK APPRECIATION RIGHT AGREEMENT
1. Grant of SAR. The Board of Directors of Headwaters Incorporated, a
Delaware corporation (the "Company"), hereby grants to the individual ("you")
named in the Notice of Stock Appreciation Right Grant (the "Notice of Grant") to
which this Stock Appreciation Right Agreement (this "Agreement") is attached, a
Stock Appreciation Right (the "SAR"), subject to the terms, definitions and
provisions of the Headwaters Incorporated [________] Incentive Plan (the "Plan")
adopted by the Company, which is incorporated herein by reference, and pursuant
to this Agreement. Unless otherwise defined herein, the terms defined in the
Plan or Notice of Grant shall have the same defined meanings in this Agreement.
In the event of a conflict between the terms of the Plan and this Agreement, the
Plan shall prevail.
2. Value of the SAR. The SAR shall entitle you, upon exercise of the
SAR, to receive from the Company the Distributable Amount in shares of Common
Stock of the Company, as determined by the Administrator in its sole discretion.
3. Nonassignability of SARs. The SAR is not assignable or transferable
by you except by will or by the laws of descent and distribution and as
otherwise consistent with the terms of the Plan and this Agreement. During the
your lifetime, only you shall be entitled to exercise the SAR.
4. Exercise of SAR.
(a) Exercise Period. The SAR may be exercised only within the
term set forth in the Notice of Grant and may be exercised during such
term only in accordance with the terms of the Plan and this Agreement.
(b) Definitions. Solely for purposes of the SAR, the following
terms shall have the meanings given them below.
(i) Cause. The term "Cause" shall mean any one of the
following:
(1) the commission by you of a felony or a
misdemeanor involving moral turpitude,
(2) any intentional act of fraud,
embezzlement or misappropriation of property of the
Company by you which has a materially adverse impact
on the business or affairs of the Company,
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(3) any intentional unauthorized use or
disclosure by you of confidential information or
trade secrets of the Company (or any affiliated
corporation or entity of the Company ("Affiliate")),
(4) any other intentional misconduct by you
which has a materially adverse impact on the business
or affairs of the Company (or any Affiliate), or
(5) the failure or refusal by you to perform
the duties of your position with the Company,
provided that solely for the purpose of this item
(5), you shall be given thirty (30) days written
notice (and the opportunity to correct such conduct
if such conduct can be corrected during that notice
period) of the Company's intention to terminate the
employment of Executive and to deem the termination
of your employment to be for the foregoing reason.
(ii) Disability. The term "Disability" shall mean
your inability to perform your duties due to a disability (as
defined and determined under the terms of the Company's
long-term disability plan).
5. Method of Exercise. The SAR shall be exercisable by written notice
(in the form attached as Exhibit C to the Notice of Grant) which shall state the
election to exercise the SAR and the number of shares of common stock of the
Company as to which the SAR is to be exercised. Such written notice shall be
signed by you and shall be delivered in person or by certified mail to the
Company. The SAR shall be deemed to be exercised upon receipt by the Company of
such written notice.
6. Form of Payment. The Company shall satisfy its obligation upon
exercise of the SAR in shares of the common stock of the Company, as determined
by the Administrator in its sole discretion.
7. Termination of Status as an Employee. In the event you cease to
serve as an Employee of the Company or a subsidiary of the Company for any
reason, except due to death or Disability, you may exercise the SAR during the
Termination Period set out in the Notice of Grant, but only to the extent it was
exercisable at the date of such termination (but in no event later than the
"Expiration Date" of the SAR as set forth in the Notice of Grant). To the extent
that you were not entitled to exercise this SAR at the date of such termination,
and to the extent that you do not exercise this SAR (to the extent otherwise so
entitled) within the time specified herein, this SAR shall terminate.
8. Tax Consequences. By accepting the SAR, you acknowledge that (i) you
understand that upon either the grant or the exercise of the SAR, you may
recognize adverse tax consequences, and (ii) you understand that the Company
will be required to withhold any income and employment taxes required by any
governmental authority. You are encouraged to consult with a tax advisor
concerning the tax consequences of exercising this SAR. You agrees that the SAR
shall be administered and settled as required for the SAR to be deemed not to be
deferred compensation subject to the provisions of Section 409A of the Internal
Revenue Code of 1986, as amended, as provided in Internal Revenue Service Notice
2005-1.
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9. Other Acknowledgements and Agreements. The parties acknowledge the
following:
(a) Nothing in this Agreement, nor in the Plan, the terms of
which are incorporated herein by this reference, shall confer upon you
any right to continuation of employment by the Company or its
affiliates, nor shall this Agreement interfere in any way with your
right or the Company's right to terminate your employment at any time.
(b) Nothing in this Agreement, the Notice of Grant or the
Plan, nor in the grant of a SAR, shall confer upon you any rights as a
stockholder of the Company.
(c) You have received a copy of the Plan and certain
information related thereto and represents that you are familiar with
the terms and provisions thereof, and hereby accept this Agreement
subject to all of the terms and provisions of the Plan. You have
reviewed the Plan and this SAR Agreement in their entirety, have had an
opportunity to obtain the advice of independent counsel prior to
executing this Agreement and fully understands all provisions relating
to this Agreement. You hereby agree to accept as binding, conclusive
and final all decisions or interpretations of the Administrator upon
any questions arising under the Plan or this Agreement.
10. Compliance with Applicable Laws, Regulations and Rules and the
Company's Policies. In accepting the SAR, you agree to comply with all
applicable laws, regulations and rules of governing state and federal
governmental agencies as well as the applicable regulations and rules of any
stock exchange on which the securities of the Company are traded, and any
policies as now or hereafter established by the Company (including but not
limited to any insider trading policies of the Company), with regard to the SAR
and the shares of the common stock of the Company received upon an exercise of
the SAR. You acknowledge and agree that you may be required to disgorge any and
gains and payments under the SAR to the extent required by applicable laws,
stock exchange regulations and rules, and the policies of the Company.
11. Governing Law. The interpretation and administration of the SAR
(including the Notice of the Stock Appreciation Right Grant, the Stock
Appreciation Right Agreement and Stock Appreciation Right Exercise Notice) shall
be governed by the laws of the state of Delaware other than the choice of law
principles of that state.
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EXHIBIT C
HEADWATERS INCORPORATED
[_______] INCENTIVE PLAN
STOCK APPRECIATION RIGHT EXERCISE NOTICE
Headwaters Incorporated
10653 S River Front Parkway, Suite 300
South Jordan, UT 84095
Attention: Corporate Secretary
1. Exercise of SAR. Effective as of today, _______________, _____, the
undersigned ("Grantee") hereby elects to exercise a stock appreciation right
with respect to _________ shares of the Common Stock (the "Shares") of
Headwaters Incorporated ("Company") pursuant to the Notice of Stock Appreciation
Right Grant ("Notice of Grant"), stock appreciation right agreement ("SAR
Agreement") by and between Grantee and the Company, dated _______________and
pursuant to the Headwaters Incorporated [______] Incentive Plan (the "Plan").
2. Representations of Employee. Grantee acknowledges that Grantee has
received, read and understood the Plan, the SAR Agreement, and the Notice of
Grant and agrees to abide by and be bound by their terms and conditions.
3. Tax Treatment of SAR. Grantee understands that Grantee may suffer
adverse tax consequences as a result of Grantee's exercise of rights under the
SAR and this Notice. Grantee represents that Grantee has consulted with his or
her own independent tax advisor in connection with exercising rights under this
SAR and that Grantee is not relying on the Company for any tax advice.
4. Entire Agreement. The terms of the Plan, Notice of Grant and the SAR
Agreement are incorporated herein by reference and constitute the entire
agreement of the parties and supersede in their entirety all prior undertakings
and agreements of the Company and Grantee with respect to the subject matter
hereof, and are governed by Utah law except for that body of law pertaining to
conflict of laws.
Submitted By: Accepted By:
GRANTEE HEADWATERS INCORPORATED
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Signature Signature
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Name Printed Name
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Title
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