S-8 POS 1 s8pos031904.txt FORM S-8 POS: 2003 STOCK INCENTIVE PLAN 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 ------------------------------------------------------ (Exact Name of Registrant as Specified in Its Charter) Delaware 87-0547337 --------------------------------- ---------------------- (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 -------------------------------------------------------------- (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) HEADWATERS INCORPORATED 2003 STOCK INCENTIVE PLAN ------------------------------------------------- (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 ________________
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 ----------------------------------- 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 --------- ----- ---- /s/ Kirk A. Benson Director and Chief Executive Officer March 19, 2004 ------------------------- 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 ------------------------- 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.