-----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, Tik6jIiCHyYEyisMOukGlPfjqIfsTGDA4kpBoOGV7r9K2GxcUae9HBVfgipTF+lX 0D/3ZNHltYPiC40MRK/U3w== 0001038838-05-000826.txt : 20050920 0001038838-05-000826.hdr.sgml : 20050920 20050920113211 ACCESSION NUMBER: 0001038838-05-000826 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20050914 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050920 DATE AS OF CHANGE: 20050920 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: 001-32459 FILM NUMBER: 051092825 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 form8k091405.txt FORM 8-K DATED SEPTEMBER 14, 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): September 14, 2005 Headwaters Incorporated ----------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 1-32459 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 1.01. Entry into a Material Definitive Agreement. - ------------------------------------------------------ In September 2005, Headwaters entered into two employment-related agreements with Scott K. Sorensen, who will become Headwaters Chief Financial Officer on October 1, 2005. The agreements are attached as exhibits 10.95 and 10.95.1. Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers. - -------------------------------------------------------------------------------- On September 20, 2005, Headwaters announced the planned retirement of Steven G. Stewart as Chief Financial Officer, effective September 30, 2005, with continued employment as Headwaters' Treasurer through March 31, 2006. Scott K. Sorensen will become Headwaters' Chief Financial Officer on October 1, 2005. The press release is attached as exhibit 99.1. Scott K. Sorensen, 43, served as Vice President and Chief Financial Officer of Hillenbrand Industries, Inc. from March 2001 through July 2005. From February 1998 to February 2001, Mr. Sorensen was the Executive Vice President, Chief Financial Officer and Treasurer of Pliant Corporation (formerly Huntsman Packaging) and prior to that time served as the senior financial executive within two divisions of Westinghouse Electric Corporation / CBS and in various financial executive positions with Phelps Dodge Industries and McKinsey & Company, Inc. Mr. Sorensen graduated from the University of Utah in 1986 with an accounting degree and obtained an MBA degree from the Harvard Business School in 1990. Mr. Sorensen is currently serving as a member of the Board of Directors of Wabash National Corporation (NYSE - WNC). He was elected a director in March 2005 and serves on the Audit and Compensation Committees. The significant terms of Mr. Sorensen's employment arrangement are as follows. o Annual salary of $290,000 o Participation in Headwaters' Short-Term Incentive Bonus Plan and other benefit plans available to Headwaters' executives and employees o A grant of 100,000 stock appreciation rights under terms of Headwaters' 2003 Stock Incentive Plan and 2005 Long-Term Incentive Compensation Plan o Under certain circumstances, and only if termination occurs within 12 months of employment, severance pay equal to salary earned during the period of employment, not to exceed 12 months of salary Item 9.01. Financial Statements and Exhibits. - --------------------------------------------- (c) Exhibits. 10.95: Offer of Employment dated September 12, 2005 between Scott K. Sorensen and Headwaters (received September 14, 2005) 10.95.1: Executive Severance Agreement dated September 20, 2005 between Scott K. Sorensen and Headwaters 99.1: Press release announcing change in Headwaters' Chief Financial Officer -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: September 20, 2005 HEADWATERS INCORPORATED (Registrant) By: /s/ Kirk A. Benson ------------------------- Kirk A. Benson Chief Executive Officer (Principal Executive Officer) -3- EX-10.95 2 ex1095form8k091405.txt OFFER OF EMPLOYMENT FOR SCOTT K. SORENSEN September 12, 2005 Scott K. Sorensen 133 Red Oak Dr. Batesville, IN 47006 Dear Scott: This letter will confirm our verbal discussions, offer of employment and your acceptance for the position of Chief Financial Officer of Headwaters Incorporated, reporting to Kirk Benson, Chief Executive Officer. The work location for this position will be at the Headwaters corporate offices in South Jordan, Utah. Headwaters is an exciting, dynamic organization, with significant growth potential. We are pleased offer you this opportunity to grow along with the Company. Commensurate with the leadership role and impact of this position, we expect you to abide by all company policies, including compliance with the company's code of ethics. We also expect you to carry out the normal and customary fiduciary and managerial responsibilities of such a position, including the development and maintenance of relationships and accountabilities to the Headwaters organization, the Board of Directors and outside entities such as shareholders and regulatory agencies. This offer is contingent upon your agreement to these terms and the successful completion of background checks and pre-employment drug screening. The information below outlines the specifics of this offer: 1. Your starting salary will be $24,167.00 per month, paid according to our normal bi-weekly payroll cycle. The company evaluates individual performance on an annual basis each August with base pay adjustments at the beginning of each fiscal year (October 1). This process will apply to your position beginning in 2006. 2. You will participate in the Headwaters Incorporated Short-Term Incentive Bonus Plan ("Plan") beginning in Fiscal Year 2006 (ending September 30, 2006). Your incentive bonus for FY 2006 will be based on the accomplishment of your Individual Business Objectives and the Company achievement of its goals. For FY 2006, your bonus calculation will include a company performance factor of the higher of a) the actual FY 2006 company performance factor, or b) 2.0. Scott K. Sorensen September 8, 2005 Page Two 3. You will be granted 100,000 stock appreciation rights (SARs). The grant price will be set using the closing stock price on the first day of your employment with Headwaters. Of the 100,000 SARs, 63,750 will be allocated from the Company's 2003 Stock Incentive Plan. These SARs will have a ten-year term, will vest over five years (20% per year), and will have an appreciation cap of two times the grant price. The remaining 36,250 SARs will be allocated from the Company's 2005 Stock Incentive Plan. They will have a ten-year term, will vest over five years (20% per year) and their exercise will be subject to Company performance criteria. This award represents a five-year grant of long-term incentives. 4. You will be entitled to a Company vehicle in accordance with the Company's Executive Vehicle Policy 5. Upon verification of your current mortgage, the Company will buy your existing residence for the current mortgage amount plus $200,000, realtor fees and closing costs. In addition, the Company will pay for the movement of your household belongings at a cost not to exceed $15,000. You will also be eligible for a one-time, lump sum relocation allowance of $35,000. 6. Medical, dental, and vision insurance benefits begin on your first day of active employment. 7. You may enroll in the company's 401(k) plan on the first enrollment date following six months from your date of hire (July 1, 2006) and the Employee Stock Purchase Plan on the first enrollment date following three months from your date of hire (March 1, 2006). Scott, please feel free to contact me with any questions you may have. Speaking for all of us on the management team, we are excited about the prospects of your joining Headwaters. In this position, you will become a key member of the management team of the Company. You will be relied upon by the CEO and others. You will have the opportunity to participate in the growth of the company, including expected expansions and possible acquisitions. You will be fulfilling a high-impact role and will be involved in issues and decisions that are critical to the Company's future. We are confident that your skills, knowledge and experience will enable you to make a significant contribution to our mutual success. Scott K. Sorensen September 8, 2005 Page Three If you find this offer satisfactory and wish to accept, please sign in the space below and mail or fax this document back to me. If you decide to accept our offer, the next step will be to schedule a pre-employment drug screen, complete the pre-employment processing, and set a start date. Best regards, /s/ Kirk A. Benson Kirk A. Benson Chief Executive Officer ACCEPTED: /s/ Scott K. Sorensen 9/13/05 Scott K. Sorensen Date EX-10.95.1 3 ex10951form8k091405.txt EXECUTIVE SEVERANCE AGREEMENT HEADWATERS INCORPORATED EXECUTIVE SEVERANCE AGREEMENT THIS EXECUTIVE SEVERANCE AGREEMENT is entered into by and between Headwaters Incorporated, a Delaware corporation (the "Company"), and the undersigned executive employee of the Company ("Executive") to be effective as of the 20th day of September, 2005 ("Effective Date"). 1. Severance Pay and Benefits. If the Executive's employment with the Company is terminated by reason of an Involuntary Termination without Cause (as defined below) or a Voluntary Termination For Good Reason (as defined below) solely during the twelve-month period beginning on the Effective Date and ending on the one-year anniversary of the Effective Date, and provided Executive executes a valid release in substantially the form attached as Exhibit A ("Release of Claims"), then the Company shall provide the following severance pay and benefits to Executive as follows: (1) Severance Pay. Within five (5) business days of the effective date of the Release of Claims (following the expiration of any required rescission period under any applicable law), the Company shall pay Executive an amount equal to the annual base salary payable to the Executive during the period of employment in lieu of any other severance or employment termination payments or legal damages. The severance amount shall not exceed twelve (12) months pay. (2) Severance Benefits. (a) Health Benefits. The Company shall continue and pay for the same or similar group health benefits coverage for the benefit of Executive and Executive's covered dependents at the time of the termination of Executive's employment at the same level that it paid for such coverage prior to the termination of Executive's employment, for the period set forth in Section 1(1) above. Such coverage shall apply towards the period of continuation coverage required to be offered by the Company to a terminated employee under section 4980B of the federal Internal Revenue Code of 1986, as amended, and section 601, et seq., of the federal Employee Retirement Income Security Act of 1974, as amended. (b) Other Benefits. The Company shall continue and pay for all other group welfare benefits (including but not limited life insurance coverage) received by Executive and Executive's covered dependents at the time of the termination of Executive's employment at the same level that it paid for such benefits and perquisites immediately prior to the termination of Executive's employment, for the period set forth in Section 1(1) above. 2. Definitions. The following terms in this Agreement shall have the meanings set forth below solely for purposes of this Agreement. (a) "Involuntary Termination without Cause" shall mean the involuntary termination of Executive's employment by the Company for reasons other than (1) the commission by Executive of a felony or a misdemeanor involving moral turpitude, (2) any intentional act of fraud, embezzlement or misappropriation of property of the Company by Executive which has a materially adverse impact on the business or affairs of the Company, (3) any intentional unauthorized use or disclosure by Executive 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 Executive which has a materially adverse impact on the business or affairs of the Company (or any Affiliate), (5) the death of Executive, (6) the inability of Executive to perform Executive's duties due to a disability (as defined and determined under the terms of the Company's long-term disability plan), or (7) the failure or refusal by Executive to perform the duties of Executive's position with the Company, provided that solely for the purpose of this item (7), Executive 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 Executive's employment to be for the foregoing reason. (b) "Voluntary Termination With Good Reason" shall mean Executive's voluntary resignation within sixty (60) days following the occurrence of any of the following actions without Executive's consent ("Good Reason"): (1) the material, involuntary reduction in Executive's title, responsibilities, authorities or functions as an employee of the Company (but not merely a change in title or reporting relationships), except in connection with the termination of Executive's employment for death, disability, retirement, fraud, misappropriation, embezzlement or any other conduct listed under the definition of Cause; (2) a reduction in Executive's level of compensation (including base salary, fringe benefits and target bonuses under any corporate-performance based bonus or incentive programs) by more than ten percent (10%) unless such reduction is part of a general reduction applicable to all of the executives of the Company, or (3) a relocation of Executive's regular place of employment by more than twenty-five (25) miles. Notwithstanding the foregoing, Executive must provide the Company with twenty (20) days advance written notice of Company's conduct giving rise to Good Reason prior to Executive's resignation as a Voluntary Termination With Good Reason (the "Cure Period") and during the Cure Period, the Company may attempt to rescind or correct the matter giving rise to Good Reason. If the Company does not rescind or correct the conduct giving rise to Good Reason to Executive's reasonable satisfaction by the expiration of the Cure Period, Executive may then resign Executive's employment and to claim that such resignation is a Voluntary Termination With Good Reason. 3. Employment and Post Termination Covenants. By accepting the terms of this Agreement and as a condition for the termination payments and benefits Executive hereby agrees to the following covenants in addition to any obligations Executive may have by law and makes the following representations. (a) Confidentiality. Executive acknowledges that, in connection with Executive's employment by the Company, Executive will have access to trade secrets of the Company and other information and materials which the Company desires to keep confidential, including customer lists, supplier lists, financial statements, business records and data, marketing and business plans, and information and materials relating to the Company's services, products, methods of operation, key personnel, proprietary software and other proprietary intellectual property and information disclosed to the Company of third parties to which the Company owes a duty of nondisclosure (collectively, the "Confidential Information"); provided, however, that Confidential Information does not include information which (i) is or becomes publicly known other than as a result of your actions in violation of this Agreement; (ii) is or becomes available to Executive from a source (other than the Company) that Executive reasonably believes is not prohibited from disclosing such information to Executive by a contractual or fiduciary obligation to the Company, (iii) has been made available by the Company, directly or indirectly, to a non-affiliated third party without obligation of confidentiality; or (iv) Executive is obligated to produce as a result of a court order or pursuant to governmental action or proceeding, provided that Executive gives the Company prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting such Confidential Information from public disclosure. Executive covenants and agrees that, both during and after the term of Executive's employment with the Company, Executive will keep secret all Confidential Information and will not disclose, reveal, divulge or otherwise make known any Confidential Information to any person (other than the Company or its employees or agents in the course of performing Executive's duties hereunder) or use any Confidential Information for Executive's own account or for the benefit of any other individual or entity, except with the prior written consent of the Company. (b) Ownership of Intellectual Property. Executive agrees that all inventions, copyrightable material, software, formulas, trademarks, trade secrets and the like which are developed or conceived by Executive in the course of Executive's employment by the Company or on the Company's time or property (collectively, the "Intellectual Property") shall be disclosed promptly to the Company and the Company shall own all right, title and interest in and to the Intellectual Property. The parties expressly agree that any and all of the Intellectual Property developed by the Employee shall be considered works made-for-hire for the Company pursuant to the United States Copyright Act of 1976, as amended from time to time. In order to ensure that the Company shall own all right, title and interest in and to the Intellectual Property in the event that any of the Intellectual Property is not deemed a work made-for-hire (as defined in the Copyright Act of 1976) and in any other event, Executive hereby sells and assigns all right, title and interest in and to all such Intellectual Property to the Company, and Executive covenant and agree to affix to the Intellectual Property appropriate legends and copyright notices indicating the Company's ownership of all Intellectual Property and all underlying documentation to the extent reasonably appropriate, and shall execute such instruments of transfer, assignment, conveyance or confirmation as the Company reasonably considers necessary to transfer, confirm, vest, perfect, maintain or defend the Company's right, title and interest in and to the Intellectual Property throughout the world. Executive's obligation under this Section 4(b) to assign to the Company inventions created or conceived by Executive shall not apply to an invention that Executive developed entirely on Executive's own time without using the Company's equipment, supplies, facilities, or trade secret information, provided that those inventions (i) do not or did not relate directly, at the time of conception or reduction to practice of the invention, to the Company's business as conducted at such time or actual or demonstrably anticipated research or development of the Company; and (ii) do not or did not result from any work performed by Executive for the Company. (c) Non-Solicitation. Executive agrees for a period of not less than two (2) years following termination of Executive's employment or service (which ever is later) with the Company that Executive shall not solicit the services or employment of the employees of the Company and Executive shall not divert clients or customers of the Company to the disadvantage of the Company; provided that (i) general advertisements not specifically directed at employees of the Company shall not constitute solicitation for purposes of this clause (c), and (ii) this clause (c) shall not prohibit Executive from hiring employees of the Company who first approach Executive seeking employment. (d) Non-Competition. Executive agrees not to compete directly or indirectly as a principal, partner, shareholder, equity holder, limited liability company member, agent, officer, other employee, advisor, consultant, member of a board of directors, or in any other capacity, with any current or future business of the Company during the period of Executive's employment or service with the Company and during the period of twelve (12) months following the termination of Executive's employment or service with the Company. 4. Alternate Dispute Resolution (a) Arbitration. The parties agree that any future disputes between Executive and the Company (the "parties") under this Agreement including but not limited to disputes relating to the Release of Claims shall be resolved by binding arbitration, except where the law specifically forbids the use of arbitration as a final and binding remedy, except as provided in Section 4(a)(7) below. (1) The complainant shall provide the other party a written statement of the claim. Such statement shall identify any supporting witnesses or documents and the relief requested. (2) The respondent shall furnish a statement of the relief, if any, that it is willing to provide, and identifying supporting witnesses or documents. If the matter is not resolved, the parties agree to submit their dispute to a non-binding mediation paid for by the Company, provided, however, that if the amount in dispute is $50,000 or less, this step may be waived at the election of either party. (3) If the matter is not resolved, the parties agree that the dispute shall be resolved by binding arbitration according to the commercial arbitration rules of the American Arbitration Association, including any provisions thereof pertaining to discovery. (4) The arbitrator shall have the authority to determine whether the conduct complained of in Section 4(a)(1) violates the complainant's rights under this Agreement and, if so, to grant any relief authorized by law; subject to the provisions of Section 4(a)7) below. The arbitrator shall not have the authority to modify, change or refuse to enforce any lawful term of this Agreement and the Release of Claims. (5) The Company shall bear the costs of the arbitration, provided, however, if the Company prevails in the arbitration, Executive shall pay any arbitration costs of the Company awarded by the Arbitrator to the same extent as if the matter had been heard in a court of general jurisdiction. (6) Arbitration shall be the exclusive final remedy for any dispute between the parties [under this Agreement/, such as disputes involving claims for discrimination or harassment (such as claims under the Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or the Age Discrimination in Employment Act), wrongful termination, breach of contract, breach of public policy, physical or mental harm or distress or any other disputes, and the parties agree that no dispute shall be submitted to arbitration where the complainant has not complied with the preliminary steps provided for in Sections 5(a)(1) and (2) above. (7) The parties agree that the arbitration award shall be enforceable in any court having jurisdiction to enforce this Agreement and Release of Claims, so long as the arbitrator's findings of fact are supported by substantial evidence on the whole and the arbitrator has not made errors of law; however, either party may bring an action in a court of competent jurisdiction, regarding or related to matters involving the Company's confidential, proprietary or trade secret information, or regarding or related to inventions that Executive may claim to have developed prior to or after joining the Company, seeking preliminary injunctive relief in court to preserve the status quo or prevent irreparable injury before the matter can be heard in arbitration. (8) The arbitration shall be held in the city of Salt Lake City, Utah, unless the parties mutually agree to a different location for the arbitration. (9) In the event that the Company wishes to contest or dispute a Voluntary Termination for Good Reason by Executive, it must give written notice of such dispute within the ten (10) business day period after the date of Executive's resignation. If Executive wishes to contest or dispute a termination for cause by the Company, or any failure to make payments claimed to be due hereunder, Executive must give written notice of such dispute within thirty (30) days of receiving a Notice of Termination. In the event of a dispute as to whether Executive's employment was terminated due to a Involuntary Termination Without Cause, the Company shall continue to pay Executive's full base salary and continue all of Executive's employee benefits in force until the final resolution of any such dispute by mutual agreement, arbitrator's award or the final judgment, decree or order of a court of competent jurisdiction (including any appeals, if such are perfected). Executive may, at Executive's or the Company's option, be suspended from all duties during the pendency of such a contest or dispute. If Executive prevails in any such contest or dispute, the Company or its successor or assign shall thereupon be liable for the full amounts due under Section 1 as of the date of termination after adjustments for amounts already paid. If the Company or its successor or assign prevails in any such contest or dispute, Executive shall thereupon be liable to the Company or its successor or assign for all amounts previously paid to Executive during the pendency of the contest or dispute. 5. Tax Withholding and Deductions. All payments under this Agreement shall be made subject to all applicable tax withholding and other deductions required by law. 6. No Additional Rights. This Agreement and the provisions herein shall not be construed to be a grant to or modification of any right of the Executive to continued employment with the Company or its successor. Such right, if any, shall be governed by any other employment agreements between Executive and the Company. 7. Notices. Notices to the parties under this Agreement shall be made to the following persons and addresses (or such other persons and addresses designated by the recipient party): To Executive: ------------- Scott K. Sorensen c/o 1020 Oak Hills Way Salt Lake City, Utah 84108 with a copy to: Paul Durham Esq. Durham, Jones & Pinegar LLP 111 East Broadway, Suite 900 Salt Lake City, Utah 84111 To Company: ----------- Harlan Hatfield, General Counsel 10653 S. River Front Parkway, Suite 300 South Jordan, UT 84095 with a copy to: Linda Williams, Esq. Pillsbury Winthrop Shaw Pittman LLP 50 Fremont Street San Francisco, CA 94105 Facsimile: (415) 983-1200 Delivery may be made by U.S. Mail or by facsimile transmission to the facsimile telephone numbers set forth above with the name of the recipient set forth in the facsimile transmission. 8. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Company (including but not limited to any successors or assigns of the Company) for the benefit of Executive. 9. Complete Agreement and Modification of this Agreement. This Agreement represents the sole agreement of the parties regarding the subject matter of this Agreement and supersedes any prior or contemporaneous verbal or written agreements, promises or representations regarding the subject matter of this Agreement. This Agreement may not be modified except by a written instrument signed by both parties. 10. Jurisdiction and Governing Law. Jurisdiction and venue in any action to interpret or enforce the terms of this Agreement shall be in the State of Utah and in the City of Salt Lake City. This Agreement shall be governed by the laws of the State of Utah other than the choice of laws principles of the laws of that state. In Witness Whereof, the parties hereto have executed this Agreement to be effective as of the date first above written. Executive Headwaters Incorporated /s/ Scott K. Sorensen /s/ Kirk A. Benson By: Kirk A. Benson Its: CEO 10653 S. River Front Parkway, Suite 300 South Jordan, UT 84095. EXHIBIT A GENERAL RELEASE LANGUAGE Executive agrees, for himself, his spouse, heirs, executor or administrator, assigns, insurers, attorneys and other persons or entities acting or purporting to act on his behalf (the "Executive's Parties"), to irrevocably and unconditionally release, acquit and forever discharge the Company, its affiliates, subsidiaries, directors, officers, employees, shareholders, partners, agents, representatives, predecessors, successors, assigns, insurers, attorneys, benefit plans sponsored by the Company and said plans' fiduciaries, agents and trustees (the "Company's Parties"), from any and all actions, cause of action, suits, claims, obligations, liabilities, debts, demands, contentions, damages, judgments, levies and executions of any kind, whether in law or in equity, known or unknown, which the Executive's Parties have, have had, or may in the future claim to have against the Company's Parties by reason of, arising out of, related to, or resulting from Executive's employment with the Company or the termination thereof. This release specifically includes without limitation any claims arising in tort or contract, any claim based on wrongful discharge, any claim based on breach of contract, any claim arising under federal, state or local law prohibiting race, sex, age, religion, national origin, handicap, disability or other forms of discrimination, any claim arising under federal, state or local law concerning employment practices, and any claim relating to compensation or benefits. This specifically includes, without limitation, any claim which the Executive has or has had under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, as amended, the Americans With Disabilities Act, as amended, and the Employee Retirement Income Security Act of 1974, as amended. It is understood and agreed that the waiver of benefits and claims contained in this section does not include a waiver of the right to payment of any vested, non-forfeitable benefits to which the Executive or a beneficiary of the Executive may be entitled under the terms and provisions of any employee benefit plan of the company which have accrued as of the separation date and does not include a waiver of the right to benefits and payment of consideration to which Executive may be entitled under this agreement. Executive acknowledges that he is only entitled to the severance benefits and compensation set forth in this agreement, and that all other claims for any other benefits or compensation are hereby waived, except those expressly stated in the preceding sentence. Executive expressly waives and relinquishes all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to his release of claims. EX-99.1 4 ex991form8k091405.txt PRESS RELEASE DATED SEPTEMBER 20, 2005 NEWS BULLETIN RE: Headwaters Incorporated FROM: 10653 South River Front Parkway, Suite 300 South Jordan, UT 84095 FINANCIAL (801) 984-9400 RELATIONS BOARD NYSE: HW - -------------------------------------------------------------------------------- FOR FURTHER INFORMATION AT THE COMPANY: AT FINANCIAL RELATIONS BOARD: Sharon Madden Tricia Ross Director of Investor Relations Analyst Contact (801) 984-9400 (617) 520-7064 FOR IMMEDIATE RELEASE: September 20, 2005 SOUTH JORDAN, UTAH, September 20, 2005 (NYSE: HW) - HEADWATERS INCORPORATED today announced that Steven G. Stewart intends to retire as Chief Financial Officer. Mr. Stewart has functioned as Headwaters CFO since July 1998. Mr. Stewart will step down as CFO on October 1, 2005, but will continue as Headwaters' Treasurer through mid 2006 and thereafter will be available as needed and requested by Headwaters. Prior to joining Headwaters, Mr. Stewart held various management positions with several of the "Big Four" international accounting firms including over 13 years as a partner. Mr. Stewart has vested retirement from his years as an accounting firm partner that begins in late 2006, consistent with his retirement from Headwaters. Mr. Scott K. Sorensen has been hired and will assume Chief Financial Officer responsibilities effective October 1, 2005. Mr. Sorensen has an undergraduate degree in accounting from the University of Utah and an MBA from the Harvard Business School. He has an impressive track record of success in progressively responsible positions with complex organizations of various sizes. His work history includes positions with McKinsey & Company, Phelps Dodge Industries, Westinghouse and Pliant Corporation (formerly known as Huntsman Packaging). Most recently, he has served as VP and CFO for Hillenbrand Industries, an NYSE-listed, $2 billion revenue manufacturer of health care and funeral products located in Batesville, Indiana. Mr. Sorensen and Mr. Stewart will work through a smooth transition of Headwaters' financial organization, including completion of the year-end audit, the filing of Headwaters' September 30, 2005 Form 10-K and the required Sarbanes - - Oxley officer compliance certificates. Mr. Stewart stated, "We are pleased to have found and hired a new CFO with Scott's qualifications, experience and proven success to assist in managing the growth that Headwaters is experiencing and expects to continue. I am very committed to doing whatever is necessary to assure a smooth, transparent transition for Scott. The experiences, challenges and accomplishments that I have had over the last seven years have exceeded my highest expectations. It is not easy to leave such an exciting and dynamic company; however, retirement during this timeframe has been part of my long-range plans. Our success at Headwaters has provided me the opportunity to execute on my plan." Mr. Sorensen stated, "I am truly excited to join the Headwaters management team as they have led Headwaters to exceptional levels of operating and financial performance. I appreciate the strong financial leadership that Steve has provided to Headwaters. There remain substantial opportunities to create additional value throughout Headwaters' portfolio of businesses. I look forward to the challenge of leading the financial organization as Headwaters pursues and captures these growth opportunities." 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 materials 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-----