-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E03xfes0cXbEBryOSXIKcbtm7nhqA0oBKqAKv3WYRO1YRkLq/Tn4Z4YiEljz90N4 eIWrQD5lhQkV81roW9FVfQ== 0001038838-05-000217.txt : 20050215 0001038838-05-000217.hdr.sgml : 20050215 20050215133017 ACCESSION NUMBER: 0001038838-05-000217 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20050211 ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050215 DATE AS OF CHANGE: 20050215 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HEADWATERS INC CENTRAL INDEX KEY: 0001003344 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS PRODUCTS OF PETROLEUM & COAL [2990] IRS NUMBER: 870547337 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-27808 FILM NUMBER: 05616143 BUSINESS ADDRESS: STREET 1: 10653 SOUTH RIVERFRONT PARKWAY STREET 2: SUITE 300 CITY: SOUTH JORDAN STATE: UT ZIP: 84095 BUSINESS PHONE: 801-984-9400 MAIL ADDRESS: STREET 1: 10653 SOUTH RIVERFRONT PARKWAY STREET 2: SUITE 300 CITY: SOUTH JORDAN STATE: UT ZIP: 84095 FORMER COMPANY: FORMER CONFORMED NAME: COVOL TECHNOLOGIES INC DATE OF NAME CHANGE: 19951113 8-K 1 form8k021105.txt FORM 8-K DATED FEBRUARY 11, 2005 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): February 11, 2005 Headwaters Incorporated ----------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 0-27808 87-0547337 - ---------------------------- ------------- ---------------------- (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 ---------------------------------------- ---------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (801) 984-9400 Not Applicable --------------------------------------------------------------- (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 7.01. Regulation FD Disclosure. On February 11, 2005, we issued a press release regarding the jury verdict in our litigation with AJG Financial Services. A copy of that press release is attached hereto as Exhibit 99.1. On February 15, 2005, we issued a press release announcing the commencement of a public offering of our Common Stock. A copy of that press release is attached hereto as Exhibit 99.2. The Company reaffirms its fiscal 2005 earnings guidance of $2.00 - $2.10 per share based on fully diluted shares outstanding, taking into account shares potentially to be issued in connection with this offering. The information in Item 7.01 of this Current Report, including Exhibits 99.1 and 99.2 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 Exhibits 99.1 and 99.2 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. 99.1 - Press Release announcing verdict in trial with AJG Financial Services, Inc. 99.2 - Press Release announcing Headwaters' intention to sell common stock. 2 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: February 15, 2005 HEADWATERS INCORPORATED (Registrant) By: /s/ Kirk A. Benson ----------------------------- Kirk A. Benson Chief Executive Officer (Principal Executive Officer) 3 EX-99.1 2 ex991form8k021105.txt VERDICT WITH AJG FINANCIAL SERVICES, INC. NEWS BULLETIN RE: Headwaters Incorporated FROM: 10653 South River Front Parkway, Suite 300 FINANCIAL South Jordan, UT 84095 RELATIONS BOARD (801) 984-9400 NASDAQ: HDWR - -------------------------------------------------------------------------------- FOR FURTHER INFORMATION AT THE COMPANY: AT FINANCIAL RELATIONS BOARD: Sharon Madden Tricia Ross Director of Investor Relations Analyst Contact (801) 984-9400 (310) 407-6540 FOR IMMEDIATE RELEASE: FEBRUARY 11, 2005 HEADWATERS INCORPORATED ANNOUNCES VERDICT IN TRIAL WITH AJG FINANCIAL SERVICES, INC. SOUTH JORDAN, UTAH, FEBRUARY 11, 2005 - HEADWATERS INCORPORATED (NASDAQ: HDWR), today announced that the jury has reached a verdict on three claims in the trial against AJG Financial Services, Inc. First, the jury determined that AJG violated its license agreement with Headwaters by failing to pay royalties from four alternative fuel lines located in South Carolina. The jury found that AJG should pay Headwaters $175,294,532 for the breach of contract through 2004. Second, the jury found that Headwaters violated an agreement with AJG by not paying royalties in connection with a financing agreement and indicated that Headwaters should pay AJG $270,734 for the breach. Third, the jury rejected AJG's negligent misrepresentation claim against Headwaters. The court has not yet ruled on Headwaters' claim for declaratory relief concerning AJG's future obligation to pay royalties for production from the four alternative fuel lines. Further, the court has not yet entered judgment on the verdict. Once entered, the parties may seek relief from the judgment by motion to the trial court and by appeal from the final judgment. It is anticipated that this case will be the subject of post-verdict motions and appeals. No revenue will be recognized until these post-verdict motions and appeals are resolved and collection is assured. "Over the past four years, the litigation has been a distraction. We are pleased that the jury agreed with our position," said Kirk A. Benson, Chief Executive Officer. "But it will still require time and expense to bring this litigation to its final conclusion and collect the money owed to Headwaters." About Headwaters Incorporated Headwaters Incorporated is a world leader in creating value through innovative advancements in the utilization of natural resources. Headwaters is a diversified growth company providing products, technologies and services to the energy, construction and home improvement industries. Through its alternative energy, coal combustion products, and building products businesses, the Company earns a growing revenue stream that provides the capital needed to expand and acquire synergistic new business opportunities. Forward Looking Statements Certain statements contained in this report are forward-looking statements within the meaning of federal securities laws and Headwaters intends that such forward-looking statements be subject to the safe-harbor created thereby. - more - Headwaters Incorporated Page 2 of 2 Forward-looking statements include Headwaters' expectations as to the managing and marketing of coal combustion products, the production and marketing of building materials and products, the licensing of technology and chemical sales to alternative fuel facilities, the receipt of product sales, license fees and royalty revenues, the development, commercialization, and financing of new technologies and other strategic business opportunities and acquisitions, and other information about Headwaters. Such statements that are not purely historical by nature, including those statements regarding Headwaters' future business plans, the operation of facilities, the availability of tax credits, the availability of feedstocks, and the marketability of the coal combustion products, building products, and synthetic fuel, are 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. 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. 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. In addition to matters affecting the coal combustion product, alternative fuel, and building products industries or the economy generally, factors which could cause actual results to differ from expectations stated in forward-looking statements include, among others, the factors described in the captions entitled "Forward-looking Statements" and "Risk Factors" in Item 7 in Headwaters' Annual Report on Form 10-K for the fiscal year ended September 30, 2004, Quarterly Reports on Form 10-Q, and other periodic filings and prospectuses. Although Headwaters believes that its expectations are based on reasonable assumptions within the bounds of its knowledge of its business and operations, 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 this report. Our internet address is www.headwaters.com. There we make available, free of charge, our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and any amendments to those reports, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. Our reports can be accessed through the investor relations section of our web site. EX-99.2 3 ex992form8k021105.txt HEADWATERS' INTENTION TO SELL COMMON STOCK NEWS BULLETIN RE: Headwaters Incorporated FROM: 10653 South River Front Parkway, Suite 300 FINANCIAL South Jordan, UT 84095 RELATIONS BOARD (801) 984-9400 NASDAQ: HDWR - -------------------------------------------------------------------------------- FOR FURTHER INFORMATION AT THE COMPANY: AT FINANCIAL RELATIONS BOARD: Sharon Madden Tricia Ross Director of Investor Relations Analyst Contact (801) 984-9400 (617) 407-6540 FOR IMMEDIATE RELEASE: FEBRUARY 15, 2005 HEADWATERS INCORPORATED ANNOUNCES INTENTION TO SELL COMMON STOCK SOUTH JORDAN, UTAH, FEBRUARY 15, 2005 - HEADWATERS INCORPORATED (NASDAQ: HDWR), announced today that it plans to offer 6,000,000 shares of its common stock in a public offering and to grant the underwriters an option to purchase an additional 900,000 shares of common stock to cover over-allotments with respect to the offering. The Company expects to use the net proceeds from the sale of its common stock to repay a portion of the borrowings and applicable prepayment charges under the second lien term loan facility and the senior secured first lien facility, both of which are a part of its senior secured credit facilities. Morgan Stanley & Co. Incorporated will serve as sole lead bookrunning manager of this offering. Adams Harkness, Inc., JPMorgan Securities Inc., RBC Capital Markets Corporation and Stephens Inc. will serve as co-managers. The offering is pursuant to the Company's currently effective shelf registration statements and is being made solely by means of a preliminary prospectus supplement dated February 15, 2005 and the accompanying prospectuses. Copies of the preliminary prospectus supplement, when available, may be obtained from Morgan Stanley, Prospectus Department, 1585 Broadway, New York, NY 10036. -more- Headwaters Incorporated Page 2 of 2 This news release does not constitute an offer to sell or the solicitation of an offer to buy, nor will there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state. About Headwaters Incorporated Headwaters Incorporated is a world leader in creating value through innovative advancements in the utilization of natural resources. Headwaters is a diversified growth company providing products, technologies and services to the energy, construction and home improvement industries. Through its alternative energy, coal combustion products, and building products businesses, the Company earns a growing revenue stream that provides the capital needed to expand and acquire synergistic new business opportunities. -----END PRIVACY-ENHANCED MESSAGE-----