HW Headwaters Incorporated (delisted)

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): May 8, 2017 (May 6, 2017)

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:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company o

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o

INTRODUCTORY NOTE

On May 8, 2017, the acquisition of Headwaters Incorporated, a Delaware corporation (the “ Company ”), by Boral Limited, an Australian corporation (“ Parent ”), was consummated pursuant to the terms of the previously announced Agreement and Plan of Merger, dated as of November 20, 2016 (the “ Merger Agreement ”), by and among the Company, Parent and Enterprise Merger Sub, Inc., a Delaware corporation and an indirect wholly owned subsidiary of Parent (“ Merger Sub ”). Upon the terms set forth in the Merger Agreement, Merger Sub merged with and into the Company (the “ Merger ”), with the Company surviving as the surviving company and thereby becoming an indirect wholly owned subsidiary of Parent.

into a right to receive a cash payment, without interest, in an amount equal to the “spread” (i.e., the amount by which the per share Merger Consideration amount exceeds the applicable base price for each share of Common Stock subject to such stock appreciation right); (iii) each unvested restricted share that is outstanding immediately prior to the Effective Time was cancelled, without action of the holder, and converted into a right to receive a cash payment, without interest, in an amount equal to the Merger Consideration; (iv) each restricted stock unit granted under any stock plan of the Company that is outstanding immediately prior to the Effective Time was cancelled, without action of the holder, and converted into a right to receive a cash payment, without interest, in an amount equal to the Merger Consideration; and (v) each share of Common Stock purchased by the Company and held as treasury stock immediately prior to the Effective Time in connection with the deferred compensation under the Headwaters Director Deferred Compensation Plan was cancelled and converted into a right to receive a cash payment, without interest, in an amount equal to the Merger Consideration.

The foregoing description of the Merger Agreement and the transactions contemplated thereby is not complete and is subject to and qualified in its entirety by reference to the Merger Agreement, a copy of which was filed as Exhibit 2.2 to the Company’s Current Report on Form 8-K filed with the SEC on November 21, 2016 and the terms of which are incorporated herein by reference.

On May 8, 2017, in connection with the consummation of the Merger and effective as of immediately prior to the Effective Time, each of the chief executive officer; chief financial officer; vice president, general counsel and secretary; and president, Headwaters Siding and Roofing (each a named executive officer) has resigned his position as an officer of the Company. The resignations were not the result of any disagreement with the Company and were effectuated solely in connection with the Merger. Each of the individuals described in this paragraph have also been terminated as employees of the Company other than for cause in a manner that entitles them to severance payments under their existing agreements, effective as of the Effective Time. The terminations were not the result of any disagreement with the Company and were effectuated solely in connection with the Merger.

On May 6, 2017, the Company entered into a Termination Agreement (the “ Termination Agreement ”) with the Company’s Chairman of the Board and Chief Executive Officer, Kirk A. Benson.  The Termination Agreement provided that Mr. Benson would terminate employment with the Company as of the Effective Time.  The Termination Agreement confirmed the payments due to Mr. Benson under the Merger Agreement and the Company’s employee benefit plans and under his Employment Agreement with the Company dated  August 1, 2016 (the “ Employment Agreement ”).

The Employment Agreement provided that for a three-year period following Mr. Benson’s retirement as an executive officer of the Company (the “ Extended Term ”), Mr. Benson would continue employment as a non-executive employee and provide consulting services to the Company.   During the Extended Term, he would have received annual compensation of $300,000.  The Termination Agreement amends the Employment Agreement to eliminate the consulting arrangement, and in consideration of the termination of the consulting arrangement Mr. Benson will receive a lump-sum payment of $900,000.

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