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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 24, 1994
(February 21, 1994)
WESTERN GAS RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-10389 84-1127613
(State or other jurisdiction of (Commission (I.R.S Employer
incorporation) File Number) Identification No.)
12200 N. Pecos Street Denver, Colorado 80234-3439
(Address of principal executive offices) (Zip Code)
(303) 452-5603
(Registrant's telephone number, including area code)
No Changes
(Former name, former address and former fiscal year, if changed
since last report).
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ITEM 5. OTHER EVENTS
CERTIFICATE OF DESIGNATION
OF THE
$2.625 CUMULATIVE CONVERTIBLE PREFERRED STOCK
($.10 Par Value)
OF
WESTERN GAS RESOURCES, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned certifies that the following
resolution was duly adopted on February 17, 1994, by the
duly appointed Securities Committee of the Board of
Directors of Western Gas Resources, Inc., a Delaware
corporation (the "Corporation"), acting pursuant to the
provisions of Section 141(c) of the General Corporation
Law of the State of Delaware and pursuant to authority
granted to such Committee in resolutions of such Board of
Directors (the "Board") duly adopted on July 7, 1993 and
February 4, 1994:
RESOLVED, that pursuant to authority expressly
granted to and vested in the Board by provisions of
the Certificate of Incorporation of the Corporation,
as amended (the "Certificate of Incorporation"), the
issuance of a series of Preferred Stock par value
$.10 per share (the "Preferred Stock"), which shall
consist of 2,760,000 shares of Preferred Stock which
the Corporation has authority to issue, is
authorized, and the powers, designations,
preferences and relative, participating, optional or
other special rights, and the qualifications,
limitations or restrictions thereof, of the shares
of such series (in addition to the powers,
designations, preferences and relative,
participating, optional or other special rights, and
the qualifications, limitations or restrictions
thereof, set forth in the Certifi-
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cate of Incorporation which may be applicable to the
Preferred stock) are fixed as follows:
1. Designation and Number. The designation of
such series of the Preferred Stock authorized by
this resolution shall be the "$2.625 Cumulative
Convertible Preferred Stock" (the "$2.625
Convertible Preferred Stock"). The total number of
shares of the $2.625 Convertible Preferred Stock
shall be 2,760,000. The $2.625 Convertible Preferred
Stock is issuable in whole shares only.
2. Dividends. Holders of shares of the $2.625
Convertible Preferred Stock will be entitled to
receive, when and as declared by the Board out of
assets of the Corporation legally available for
payment, an annual cash dividend of $2.625 per share
of Convertible Preferred Stock, payable in arrears
on February 15, May 15, August 15 and November 15
(each a "Dividend Payment Date"), commencing May 15,
1994. Dividends on the $2.625 Convertible Preferred
Stock will be cumulative from the date of initial
issuance of shares of $2.625 Convertible Preferred
Stock. Dividends will be payable, in arrears, to
holders of record as they appear on the stock books
of the Corporation on such record dates, not more
than 60 days nor less than 10 days preceding the
payment dates thereof, as shall be fixed by the
Board. The $2.625 Convertible Preferred Stock will
be junior as to dividends to any Preferred Stock
that may be issued in the future that is expressly
senior as to dividends to the $2.625 Convertible
Preferred Stock. If at any time the Corporation has
failed to pay accrued dividends on any such senior
shares at the time such dividends are payable, the
Corporation may not pay any dividend on the $2.625
Convertible Preferred Stock or redeem or otherwise
repurchase any share of $2.625 Convertible Preferred
Stock until such accumulated but unpaid dividends on
such senior shares have been paid (or set aside for
payment) in full by the Corporation.
No dividends may be declared or paid or set
apart for payment on any Preferred Stock ranking on
a parity as to dividends with the $2.625 Convertible
Preferred Stock, unless there shall also be or have
been declared and paid or set apart for payment on
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the outstanding shares of $2.625 Convertible
Preferred Stock dividends for all dividend payment
periods of the $2.625 Convertible Preferred Stock
ending on or before the Dividend Payment Date of
such Parity Preferred Stock (as defined in Section
8(B)), ratably in proportion to the respective
amounts of dividends (i) accumulated and unpaid or
payable on such Parity Preferred Stock, on the one
hand, and (ii) accumulated and unpaid or payable
through the dividend payment period of the $2.625
Convertible Preferred Stock next preceding such
Dividend Payment Date, on the other hand.
Except as set forth above, unless full
cumulative dividends on the outstanding shares of
$2.625 Convertible Preferred Stock have been paid,
dividends (other than in Common Stock) may not be
paid or declared and set aside for payment and other
distributions may not be made upon the Common Stock
or on any other Preferred Stock of the Corporation
ranking junior to or on a parity as to dividends
with the $2.625 Convertible Preferred Stock, nor may
any Common Stock or such other Preferred Stock of
the Corporation be redeemed, purchased or otherwise
acquired by the Corporation for any consideration or
any payment be made to or monies set aside for a
sinking fund for the redemption of any shares of
such stock; provided, however, that any monies
theretofore deposited in any sinking fund with
respect to any Preferred Stock in compliance with
the provisions of such sinking fund may thereafter
be applied to the purchase or redemption of such
Preferred Stock in accordance with the terms of such
sinking fund, regardless of whether at the time of
such application full cumulative dividends upon
shares of the $2.625 Convertible Preferred Stock
outstanding on the last Dividend Payment Date shall
have been paid or declared and set apart for
payment; and provided, further, that any such junior
or Parity Preferred Stock or Common Stock may be
converted into or exchanged for stock of the
Corporation ranking junior to the $2.625 Convertible
Preferred Stock as to dividends.
The amount of dividends payable for the initial
dividend period or any period shorter than a full
dividend period shall be computed on the basis of a
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360-day year of twelve 30-day months. Accrued but
unpaid dividends will not bear interest.
3. Liquidation. The shares of $2.625
Convertible Preferred Stock shall rank prior to the
shares of Common Stock and of any other class of
stock of the Corporation ranking junior to the
$2.625 Convertible Preferred Stock upon liquidation,
so that in the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary
or involuntary, the holders of the $2.625
Convertible Preferred Stock shall be entitled to
receive out of the assets of the Corporation
available for distribution to its stockholders,
whether from capital, surplus or earnings, before
any distribution is made to holders of shares of
Common Stock or any other such junior stock,
liquidating distributions in an amount per share
equal to $50.00 (the "Liquidation Preference") plus
all dividends accrued and accumulated but unpaid
thereon to the date of final distribution; but the
holders of the $2.625 Convertible Preferred Stock
will not be entitled to receive the Liquidation
Preference of, plus such dividends on, such shares
until the liquidation preference of any other shares
of the Corporation's capital stock ranking prior to
the $2.625 Convertible Preferred Stock as to rights
upon liquidation, dissolution or winding up shall
have been paid (or a sum set aside therefor
sufficient to provide for payment) in full. If upon
any liquidation, dissolution or winding up of the
Corporation, the amounts payable with respect to the
$2.625 Convertible Preferred Stock and any other
Parity Preferred Stock are not paid in full, the
holders of the Preferred Stock and such other Parity
Preferred Stock will share ratably in any such
distribution of assets in proportion to the full
respective preferential amounts to which they are
entitled. After payment of the full amount of the
Liquidation Preference plus such dividends, the
holders of shares of $2.625 Convertible Preferred
Stock will not be entitled to any further
participation in any distribution of assets by the
Corporation. For the purposes hereof, neither a
consolidation or merger of the Corporation with
another corporation nor a sale or transfer of all or
part of the Corporation's assets for cash or
securities
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shall be considered a liquidation,
dissolution or winding up of the Corporation.
4. Voting Rights. The holders of shares of
$2.625 Convertible Preferred Stock shall have no
voting rights whatsoever, except for any voting
rights to which they may be entitled under the laws
of the State of Delaware, and except as follows:
(A) Whenever, at any time or times, dividends
payable on the shares of $2.625 Convertible
Preferred Stock or on any Parity Preferred Stock
(including the $2.28 Cumulative Preferred Stock (the
"$2.28 Preferred Stock") but excluding the 7.25%
Cumulative Senior Perpetual Convertible Preferred
Stock (the "7.25% Convertible Preferred Stock"))
with respect to payment of dividends, shall be in
arrears for dividend periods, whether or not
consecutive, containing in the aggregate a number of
days equal to six calendar quarters or more, whether
or not consecutive, the holders of the outstanding
shares of $2.625 Convertible Preferred Stock shall
have the right, voting separately as a class with
holders of shares of any one or more other class or
series of Preferred Stock (including the $2.28
Preferred Stock but excluding the 7.25% Convertible
Preferred Stock) upon which like voting rights have
been conferred and are exercisable, to elect two of
the authorized number of members of the Board at the
Corporation's next annual meeting of stockholders
and at each subsequent annual meeting of
stockholders until such arrearage has been paid or
set apart for payment, at which time such right
shall terminate, except as herein or by law
expressly provided, subject to revesting in the
event of each and every subsequent default of the
character above described. Upon any termination of
the right of the holders of shares of $2.625
Convertible Preferred Stock as a class to vote for
directors as herein provided, the term of office of
all directors then in office elected by the holders
of shares of $2.625 Convertible Preferred Stock
shall terminate immediately. Any director who shall
have been so elected pursuant to this subparagraph
may be removed at any time, either with or without
cause, by a vote of holders of Preferred Stock as
provided in this subparagraph. Any vacancy thereby
created may be filled only by
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the affirmative vote
of the holders of shares of $2.625 Convertible
Preferred Stock voting separately as a class
(together with the holders of shares of any other
class or series of stock upon which like voting
rights have been conferred and are exercisable). If
the office of any director elected by the holders of
shares of $2.625 Convertible Preferred Stock voting
as a class becomes vacant for any reason other than
removal from office as aforesaid, the remaining
director elected pursuant to this subparagraph may
choose a successor who shall hold office for the
unexpired term in respect of which such vacancy
occurred. At elections for such directors, each
holder of $2.625 Convertible Preferred Stock shall
be entitled to one vote for each share held (the
holders of shares of any other class or series of
preferred stock having like voting rights being
entitled to such number of votes, if any, for each
share of such stock held as may be granted to them).
(B) So long as any shares of $2.625
Convertible Preferred Stock remain outstanding, the
consent of the holders of at least two-thirds of the
shares of $2.625 Convertible Preferred Stock
outstanding at the time and all other classes or
series of Preferred Stock (including the $2.28
Preferred Stock but excluding the 7.25% Convertible
Preferred Stock) upon which like voting rights have
been conferred and are exercisable (voting together
as a class) given in person or by proxy, either in
writing or at any meeting called for the purpose,
shall be necessary to permit, effect or validate any
one or more of the following:
(i) The issuance or increase of the authorized
amount of any class or series of shares ranking
prior (as that term is defined in Section 8(A)) to
the shares of the $2.625 Convertible Preferred
Stock; or
(ii) Any amendment, alteration or repeal,
whether by merger, consolidation or otherwise, of
any of the provisions of the Certificate of
Incorporation or of the resolutions contained in
this Certificate of Designation that would
materially adversely affect any power, preference,
or special
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right of the shares of $2.625 Convertible
Preferred Stock or of the holders thereof; provided,
however, that any increase in the amount of
authorized Common Stock or authorized Preferred
Stock or any increase or decrease in the number of
shares of any series of Preferred Stock or the
creation and issuance of other series of Common
Stock or Preferred Stock, in each case ranking on a
parity with or junior to the shares of $2.625
Convertible Preferred Stock with respect to the
payment of dividends and the distribution of assets
upon liquidation, dissolution or winding up, shall
not be deemed to materially adversely affect such
powers, preferences or special rights.
(C) Holders of shares of the $2.625 Convert-
ible Preferred Stock entitled to voting rights under
the laws of the State of Delaware and as provided in
this Certificate of Designation will have one vote
for each share held.
(D) The foregoing voting provisions shall not
apply if, at or prior to the time when the act with
respect to which such vote would otherwise be
required shall be effected, all outstanding shares
of $2.625 Convertible Preferred Stock shall have
been redeemed or called for redemption and
sufficient funds shall have been deposited in trust
to effect such redemption.
5. Optional Redemption. Shares of the $2.625
Convertible Preferred Stock are not subject to any
mandatory redemption, sinking fund or other similar
provision and will not be redeemable prior to
February 16, 1997. On or after February 16, 1997,
the $2.625 Convertible Preferred Stock will be
redeemable at the option of the Corporation upon
notice at any time and from time to time, in whole
or in part, at the following redemption prices per
share (expressed as a percentage of the $50.00
liquidation preference thereof), plus accrued and
unpaid dividends, if any, up to but excluding the
date fixed
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for redemption, if redeemed during the
twelve-month period commencing on February 16 of the
years indicated below:
<TABLE>
<CAPTION>
Redemption
Year Price
<S> <C>
1997 . . . . . . . . . . . 103.675%
1998 . . . . . . . . . . . 103.150%
1999 . . . . . . . . . . . 102.625%
2000 . . . . . . . . . . . 102.100%
2001 . . . . . . . . . . . 101.575%
2002 . . . . . . . . . . . 101.050%
2003 . . . . . . . . . . . 100.525%
2004 and thereafter . . . 100.000%
</TABLE>
If fewer than all of the outstanding shares of
the $2.625 Convertible Preferred Stock are to be
redeemed, the shares to be redeemed will be
determined pro rata as nearly as practicable or by
lot, or by such other method as the Board of
Directors may determine to be fair and appropriate.
In the event that any quarterly dividends payable on
the $2.625 Convertible Preferred Stock are in
arrears, the $2.625 Convertible Preferred Stock may
not be redeemed unless all outstanding shares of
$2.625 Convertible Preferred Stock are
simultaneously redeemed and the Corporation may not
purchase or acquire any of such shares otherwise
than pursuant to a purchase or exchange offer made
on the same terms to all holders of record of the
$2.625 Convertible Preferred Stock.
Notice of redemption will be given by mail, not
less than 30 nor more than 60 days prior to the date
fixed for redemption thereof, to each record holder
of the shares of the $2.625 Convertible Preferred
Stock to be redeemed at the address of such holder
in the stock register of the Corporation. If a
notice of redemption has been given, from and after
the specified redemption date (unless the
Corporation defaults in making payment of the
redemption price), dividends on the $2.625
Convertible Preferred Stock so called for redemption
will cease to accrue, such shares will no longer be
deemed to be outstanding, and all rights, including
conversion rights of the holders thereof as
stockholders of the
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Corporation (except the right to
receive the redemption price), will cease. Subject
to applicable escheat laws, any moneys set aside by
the Corporation for the redemption and unclaimed at
the end of two years from the redemption date shall
revert to the general funds of the Corporation,
after which reversion the holders of such shares so
called for redemption shall look only to the general
funds of the Corporation for the payment of the
amounts payable upon such redemption. Any interest
accrued on funds so deposited shall be paid to the
Corporation from time to time.
6. Authorization and Issuance of Other
Securities. No consent of the holders of the $2.625
Convertible Preferred Stock shall be required for
(i) the creation of any indebtedness of any kind of
the Corporation, (ii) the creation, or increase or
decrease in the amount, of any class or series of
stock of the Corporation not ranking prior as to
dividends or upon liquidation to the $2.625
Convertible Preferred Stock or (iii) any increase or
decrease in the amount of authorized Common Stock or
any increase, decrease or change in the par value
thereof or in any other terms thereof.
7. Amendment of Resolution. The Board
reserves the right by subsequent amendment of this
resolution from time to time to increase or decrease
the number of shares which constitute the $2.625
Convertible Preferred Stock (but not below the
number of shares thereof then outstanding) and in
other respects to amend this resolution within the
limitations provided by law, this resolution and the
Certificate of Incorporation.
8. Ranking. For the purposes of this
resolution, any stock of any class or classes of the
Corporation shall be deemed to rank:
(A) Prior to shares of the $2.625 Convertible
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
the holders of stock of such class or classes shall
be entitled by the terms thereof to the receipt of
dividends or of amounts distributable upon
liquidation dissolution or winding up, as the case
may be,
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in preference or priority to the holders of
shares of the $2.625 Convertible Preferred Stock.
(B) On a parity with shares of $2.625
Convertible Preferred Stock, either as to dividends
or upon liquidation, dissolution or winding up, or
both, whether or not the dividend rates, Dividend
Payment Dates or redemption or liquidation prices
per share thereof are different from those of the
$2.625 Convertible Preferred Stock, if the holders
of stock of such class or classes shall be entitled
by the terms thereof to the receipt of dividends or
of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in
proportion to their respective dividend rates or
liquidation prices, without preference or priority
of one over the other as between the holders of such
stock and the holders of shares of $2.625
Convertible Preferred Stock (the term "Parity
Preferred Stock" being used to refer to any stock on
a parity with the shares of $2.625 Convertible
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, as
the context may require); and
(C) Junior to shares of the $2.625 Convertible
Preferred Stock, either as to dividends or upon
liquidation, dissolution or winding up, or both, if
such class shall be Common Stock or if the holders
of the $2.625 Convertible Preferred Stock shall be
entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or
priority to the holders of stock of such class or
classes.
The $2.625 Convertible Preferred Stock shall
rank on a parity as to dividends and upon
liquidation, dissolution or winding up with the
7.25% Convertible Preferred Stock and the $2.28
Preferred Stock of the Corporation.
9. Conversion.
(A) General. The holders of shares of $2.625
Convertible Preferred Stock shall have the right, at
each holder's option, at any time, in whole or in
part, to convert all or a portion of such holder's
shares into a number of fully paid and nonassessable
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whole shares of the Corporation's Common Stock as is
equal to the aggregate liquidation preference of the
shares of $2.625 Convertible Preferred Stock
surrendered for conversion divided by a conversion
price per share of Common Stock of $39.750 (as
adjusted from time to time, the "Conversion Price").
The Conversion Price shall be subject to adjustment
from time to time as hereinafter provided.
No payment or adjustment shall be made on
account of any accrued and unpaid dividends on
shares of $2.625 Convertible Preferred Stock
surrendered for conversion prior to the close of
business on the record date for the determination of
stockholders entitled to such dividends.
The holders of shares of the $2.625 Convertible
Preferred Stock at the close of business on a
dividend payment record date will be entitled to
receive the dividend payment on those shares on the
corresponding dividend payment date notwithstanding
the subsequent conversion thereof or the Company's
default in payment of the dividend due on that
dividend payment date. However, shares of $2.625
Convertible Preferred Stock surrendered for
conversion during the period between the close of
business on any dividend payment record date and the
opening of business on the corresponding dividend
payment date (except shares called for redemption on
a redemption date during that period) must be
accompanied by payment of an amount equal to the
dividend payment on the shares on that dividend
payment date. A holder of shares of $2.625
Convertible Preferred Stock on a dividend payment
record date who (or whose transferee) tenders any
shares for conversion on a dividend payment date
will receive the dividend payable by the Company on
$2.625 Convertible Preferred Stock on that date, and
the converting holder need not include payment in
the amount of such dividend upon surrender of shares
of $2.625 Convertible Preferred Stock for
conversion. Except as provided in this paragraph
(A), the Corporation will make no payment or
allowance for unpaid dividends, whether or not in
arrears, on converted shares or for dividends on the
shares of Common Stock issued upon such conversion.
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If any shares of $2.625 Convertible Preferred
Stock shall be called for redemption, the right to
convert the shares designated for redemption shall
terminate at the close of business on the Business
Day next preceding the date fixed for redemption
unless the Corporation defaults in the payment of
the Redemption Price plus all accrued and unpaid
dividends. In the event of default in the payment
of the Redemption Price, plus all accrued but unpaid
dividends, the right to convert the shares
designated for redemption shall terminate at the
close of business on the Business Day next preceding
the date that such default is cured.
The shares of Common Stock issuable upon
conversion of the shares of $2.625 Convertible
Preferred Stock, when the same shall be issued in
accordance with the terms hereof, are hereby
declared to be and shall be fully paid and
nonassessable shares of Common Stock in the hands of
the holders thereof.
(B) Mechanics of Conversion. Conversion of
the $2.625 Convertible Preferred Stock may be
effected by the surrender to the Transfer Agent (as
defined in Section 10), together with any payment to
the Corporation required by Section 9(A), of the
certificate or certificates for such $2.625
Convertible Preferred Stock to be converted
accompanied by a written notice stating that such
holder elects to convert all or a specified whole
number of such shares in accordance with the
provisions hereof and specifying the name or names
in which such holder wishes the certificate or
certificates for shares of Common Stock be issued.
If more than one stock certificate for the $2.625
Convertible Preferred Stock shall be surrendered for
conversion at one time by the same holder, the
number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of
the aggregate number of shares represented by all
the certificates so surrendered. In case such
notice shall specify a name or names other than that
of such holder, such notice shall be accompanied by
payment of all transfer taxes payable upon the
issuance of shares of Common Stock in such name or
names. Other than such taxes, the Corporation will
pay any and all issue
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and other taxes (other than
taxes based on income) that may be payable in
respect of any issue or delivery of shares of Common
Stock on conversion of $2.625 Convertible Preferred
Stock. As promptly as practicable, and in any event
within five Business Days after the surrender of
such certificate or certificates and the receipt of
such notice relating thereto and, if applicable,
payment of all transfer taxes required to be paid by
the holder hereunder (or the demonstration to the
satisfaction of the Corporation that any such taxes
have been paid) and any payment to the Corporation
required by Section 9(A), the Corporation shall
deliver or cause to be delivered (i) certificates
representing the number of validly issued, fully
paid and nonassessable full shares of Common Stock
to which the holder of shares of $2.625 Convertible
Preferred Stock being converted shall be entitled,
(ii) any cash owing in lieu of a fractional share of
Common Stock, determined in accordance with Section
9(D) below, and (iii) if less than the full number
of shares of the $2.625 Convertible Preferred Stock
evidenced by the surrendered certificate or
certificates is being converted, a new certificate
or certificates, of like tenor, for the number of
shares evidenced by such surrendered certificate or
certificates less the number of shares being
converted. Such conversion shall be deemed to have
been made immediately prior to the close of business
on the date of such surrender of the certificate or
certificates representing the shares of the $2.625
Convertible Preferred Stock to be converted and the
making of any payments required therewith. Upon
such conversion, except as provided in Section 9(A),
the rights of the holder thereof as to the shares
being converted shall cease except for the right to
receive shares of Common Stock (or such other
consideration as provided herein) in accordance
herewith, and the person entitled to receive the
shares of Common Stock shall be treated for all
purposes as having become the record holder of such
shares of Common Stock at such time. The
Corporation shall not be required to convert, and no
surrender of shares of the $2.625 Convertible
Preferred Stock shall be effective for that purpose,
while the transfer books of the Corporation for the
Common Stock are closed for any purposes (but not
for any period in excess of 15 days), but the
surrender of
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shares of $2.625 Convertible Preferred
Stock for conversion during any period while such
books are so closed shall become effective for
conversion immediately upon the reopening of such
books, as if the conversion had been made on the
date such shares of $2.625 Convertible Preferred
Stock were surrendered, and at the Conversion Price
in effect at the date of such surrender.
(C) Adjustment to Conversion Price. The
Conversion Price shall be adjusted from time to time
as follows:
(i) In case the Corporation shall hereafter
pay a dividend or make a distribution to all holders
of the outstanding Common Stock in shares of Common
Stock, the Conversion Price in effect at the opening
of business on the date following the Record Date
(as defined in Section 10) for such dividend or
other distribution shall be reduced by multiplying
such Conversion Price by a fraction of which the
numerator shall be the number of shares of Common
Stock outstanding at the close of business on such
Record Date and the denominator shall be the sum of
such number of shares and the total number of shares
constituting such dividend or other distribution,
such reduction to become effective immediately after
the opening of business on the day following such
Record Date. The Corporation will not pay any
dividend or make any distribution on shares of
Common Stock held in the treasury of the
Corporation.
(ii) In case the Corporation shall hereafter
issue rights or warrants to all holders of its
outstanding shares of Common Stock entitling them
(for a period expiring within 45 days after the
Record Date fixed for distribution of such rights or
warrants) to subscribe for or purchase shares of
Common Stock at a price per share less than the
Current Market Price (as defined in Section 10) on
such Record Date, the Conversion Price shall be
adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in
effect at the close of business on such Record Date
by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the
close of business on such Record Date plus the
number of shares which
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the aggregate offering price
of the total number of shares so offered would
purchase at such Current Market Price, and of which
the denominator shall be the number of shares of
Common Stock outstanding on such Record Date plus
the total number of additional shares of Common
Stock offered for subscription or purchase. Such
adjustment shall become effective immediately after
the opening of business on the day following the
Record Date for distribution of such rights or
warrants. To the extent that shares of Common Stock
are not delivered after the expiration of such
rights or warrants, the Conversion Price shall be
readjusted to the Conversion Price which would then
be in effect had the adjustments made in respect of
the issuance of such rights or warrants been made on
the basis of delivery of only the number of shares
of Common Stock actually delivered.
(iii) In case outstanding shares of Common
Stock shall be subdivided into a greater number of
shares of Common Stock, the Conversion Price in
effect at the opening of business on the day
following the Record Date for such subdivision shall
be proportionately reduced, and conversely, in case
outstanding shares of Common Stock shall be combined
into a smaller number of shares of Common Stock, the
Conversion Price in effect at the opening of
business on the day following the Record Date for
such combination shall be proportionately increased,
such reduction or increase, as the case may be, to
become effective immediately after the opening of
business on the day following the applicable Record
Date.
(iv) Subject to the last sentence of this
Section 9(C)(iv), in case the Corporation shall, by
dividend or otherwise, distribute to all holders of
its Common Stock shares of any class of capital
stock (other than a dividend or distribution to
which Section 9(C)(i) applies) or evidences of its
indebtedness or assets (including securities, but
excluding any dividend or distribution to which
Section 9(C)(ii) applies, and excluding any dividend
or distribution (x) in connection with the
liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary or (y)
paid exclusively in cash) (any of the foregoing
being hereinafter in this Section 9(C)(iv) called
the "Securi-
15
<PAGE>
ties"), then, in each such case, unless
the Corporation elects to reserve such Securities
for distribution to the holders of the $2.625
Convertible Preferred Stock upon the conversion
thereof so that any such holder converting such
shares will receive upon such conversion, in
addition to the shares of the Common Stock to which
such holder is entitled, the amount and kind of such
Securities which such holder would have received if
such holder had, immediately prior to the Record
Date for the distribution of the Securities,
converted such shares of $2.625 Convertible
Preferred Stock into Common Stock, the Conversion
Price shall be reduced so that the same shall equal
the price determined by multiplying the Conversion
Price in effect at the close of business on the
Record Date for such distribution by a fraction of
which the numerator shall be the Current Market
Price of the Common Stock on such Record Date less
the fair market value (as defined in Section 10, as
determined by the Board, whose determination shall
be conclusive and described in a resolution of the
Board), on such Record Date, of the portion of the
Securities so distributed applicable to one share of
Common Stock and the denominator shall be such
Current Market Price per share of the Common Stock,
such reduction to become effective immediately prior
to the opening of business on the day following the
Record Date; provided, however, that in the event
the then fair market value (as so determined) of the
portion of the Securities so distributed applicable
to one share of Common Stock is equal to or greater
than the Current Market Price of the Common Stock on
such Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that
each holder of shares of $2.625 Convertible
Preferred Stock shall have the right to receive upon
conversion thereof the amount and kind of Securities
such holder would have received had he converted
such shares on such Record Date. If the Board
determines the fair market value of any distribution
for purposes of this Section 9(C)(iv) by reference
to the actual or when issued trading market for any
securities comprising a distribution of Securities,
it must in doing so consider the prices in such
market over the same period used in computing the
Current Market Price of the Common Stock.
16
<PAGE>
(v) In case (i) the Corporation shall, by
dividend or otherwise, at any time distribute to all
holders of its Common Stock cash (excluding (x) any
quarterly cash dividend on the Common Stock to the
extent the aggregate cash dividend per share of
Common Stock in any fiscal quarter does not exceed
the greater of (a) the amount per share of Common
Stock of the next preceding quarterly cash dividend
on the Common Stock to the extent such preceding
quarterly dividend did not require any adjustment of
the Conversion Price pursuant to this Section
9(C)(v) (as adjusted to reflect subdivisions or
combinations of the Common Stock), and (b) 3.75% of
the average of the daily Closing Prices (as defined
in Section 10) per share of the Common Stock for the
ten consecutive Trading Days (as "Trading Day" is
defined in Section 10) immediately prior to the date
of declaration of such dividend and (y) any dividend
or distribution in connection with the liquidation,
dissolution or winding up of the Corporation,
whether voluntary or involuntary), then, in each
such case, unless the Corporation elects to reserve
such an amount of cash for distribution to the
holders of the $2.625 Convertible Preferred Stock
upon the conversion of the shares of $2.625
Convertible Preferred Stock so that any such holder
converting such shares will receive upon such
conversion, in addition to the shares of the Common
Stock to which such holder is entitled, the amount
of cash which such holder would have received if
such holder had, immediately prior to the Record
Date for such distribution of cash, converted its
shares of $2.625 Convertible Preferred Stock into
Common Stock, the Conversion Price shall be reduced
so that the same shall equal the price determined by
multiplying the Conversion Price in effect at the
close of business on such Record Date by a fraction
of which the numerator shall be the average of the
daily Closing Prices per share of Common Stock for
the ten consecutive Trading Days immediately prior
to such Record Date less the amount of cash so
distributed (to the extent not excluded as provided
above) applicable to one share of Common Stock and
the denominator shall be such Current Market Price
of the Common Stock, such reduction to become
effective immediately prior to the opening of
business on the day following such Record Date;
provided, however, that in the event
17
<PAGE>
the portion of
the cash so distributed applicable to one share of
Common Stock is equal to or greater than the average
of the daily Closing Prices per share of Common
Stock for the ten consecutive Trading Days
immediately prior to such Record Date, in lieu of
the foregoing adjustment, adequate provision shall
be made so that each holder of shares of $2.625
Convertible Preferred Stock shall thereafter have
the right to receive upon conversion the amount of
cash such holder would have received had he
converted each share of $2.625 Convertible Preferred
Stock on such Record Date.
(vi) In case of the consummation of a tender
or exchange offer made by the Corporation or any
subsidiary of the Corporation for all or any portion
of the Common Stock that involves the payment by the
Corporation or such subsidiary of consideration per
share of Common Stock having a fair market value (as
determined by the Board, whose determination shall
be conclusive and described in a resolution of the
Board) at the last time (the "Expiration Time")
tenders or exchanges may be made pursuant to such
tender or exchange offer (as it shall have been
amended) that exceeds the Closing Price per share of
Common Stock on the Trading Day next preceding the
Expiration Time, the Conversion Price shall be
reduced so that the same shall equal the price
determined by multiplying the Conversion Price in
affect immediately prior to the Expiration Time by a
fraction of which the numerator shall be the number
of shares of Common Stock outstanding (including any
tendered or exchanged shares) on the Expiration Time
multiplied by the Closing Price per share of Common
Stock on the Trading Day next preceding the
Expiration Time and the denominator shall be the sum
of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any
maximum specified in the terms of the tender or
exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration
Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of shares
of Common Stock outstanding (less any Purchased
Shares) on the Expiration Time and the Closing Price
per share of Com-
18
<PAGE>
mon Stock on the Trading Day next
preceding the Expiration Time, such reduction to
become effective immediately prior to the opening of
business on the day following the Expiration Time.
(vii) The Corporation may make such reductions
in the Conversion Price, in addition to those
required by this Section 9(C), as the Board
considers to be advisable to avoid or diminish any
income tax to holders of Common Stock or rights to
purchase Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock)
or from any event treated as such for income tax
purposes. To the extent permitted by applicable
law, the Corporation from time to time may reduce
the Conversion Price by any amount for any period of
time if the period is at least 20 days, the
reduction is irrevocable during the period and the
Board shall have made a determination that such
reduction would be in the best interests of the
Corporation, which determination shall be
conclusive. Whenever the Conversion Price is
reduced pursuant to the preceding sentence, the
Corporation shall mail to holders of record of the
$2.625 Convertible Preferred Stock a notice of the
reduction at least 15 days prior to the date the
reduced Conversion Price takes effect, and such
notice shall state the reduced Conversion Price and
the period it will be in effect.
(viii) No adjustment in the Conversion Price
shall be required unless such adjustment would
require a change of at least 1% in the Conversion
Price then in effect; provided, however, that any
adjustment that would otherwise be required to be
made shall be carried forward and taken into account
in determining any subsequent adjustment.
(ix) Notwithstanding any other provision of
this Section 9, no adjustment to the Conversion
Price shall reduce the Conversion Price below the
then par value per share of the Common Stock, and
any such purported adjustment shall instead reduce
the Conversion Price to such par value. The
Corporation hereby covenants not to take any action
(a) to increase the par value per share of the
Common Stock or (b) that would or does result in any
adjustment in the Conversion Price that, if made
with-
19
<PAGE>
out giving effect to the previous sentence,
would cause the Conversion Price to be less than the
then par value per share of the Common Stock,
provided, however, that the covenant in this
sentence shall be suspended if within 10 days of
determining in good faith that such action would
result in such adjustment (but not later than the
Business Day next following the effectiveness of
such adjustment), the Corporation gives notice of
redemption of all outstanding shares of the $2.625
Convertible Preferred Stock, and affects the
redemption referred to in such notice on the
redemption date referred to therein in compliance
with Section 5, but the covenant in this sentence
shall be retroactively reinstated if such notice and
redemption does not occur.
(x) Whenever the Conversion Price is adjusted
as herein provided:
(1) The Corporation shall compute the
adjusted Conversion Price and shall prepare a
certificate signed by the Treasurer or an
Assistant Treasurer of the Corporation setting
forth the adjusted Conversion Price and showing
in reasonable detail the facts upon which such
adjustment is based, and such certificate shall
forthwith be filed with the Transfer Agent; and
(2) A notice stating the Conversion Price
has been adjusted and setting forth the
adjusted Conversion Price shall as soon as
practicable be mailed by the Corporation to all
record holders of shares of $2.625 Convertible
Preferred Stock at their last addresses as they
shall appear upon the stock transfer books of
the Corporation.
(xi) In any case in which this Section 9(C)
provides that an adjustment shall become effective
immediately after a Record Date for an event, the
Corporation may defer until the occurrence of such
event (a) issuing to the holder of any share of
$2.625 Convertible Preferred Stock converted after
such Record Date and before the occurrence of such
event the additional shares of Common Stock issuable
upon such conversion by reason of the adjustment
20
<PAGE>
required by such event over and above the Common
Stock issuable upon such conversion before giving
effect to such adjustment and (b) paying to such
holder any amount in cash in lieu of any fractional
share of Common Stock pursuant to Section 9(D).
(D) No Fractional Shares. No fractional
shares or scrip representing fractional shares of
Common Stock shall be issued upon conversion of
$2.625 Convertible Preferred Stock. Instead of any
fractional share of Common Stock that would
otherwise be issuable upon conversion of any shares
of $2.625 Convertible Preferred Stock, and in the
sole discretion of the Board, either (i) such
fractional interest will be rounded up to the next
whole share or (ii) an appropriate amount will be
paid in cash by the Corporation. In the event that
the Board determines that the Corporation shall pay
a cash adjustment in respect of such fractional
interest, such adjustment shall be in an amount
equal to the same fraction of the Closing Price (as
defined in Section 10) of a share of Common Stock
(or, if there is no such Closing Price, the fair
market value of a share of Common Stock, as
determined or prescribed by the Board) at the close
of business on the Trading Date immediately
preceding the date of conversion.
(E) Reclassification, Consolidation, Merger or
Sale of Assets. In the event that the Corporation
shall be a party to any transaction (including
without limitation any (i) recapitalization or
reclassification of the Common Stock (other than a
change in par value, or from par value to no par
value, or from no par value to par value, or as a
result of a subdivision or combination of the Common
Stock), (ii) any consolidation or merger of the
Corporation with or into any other person or any
merger of another person into the Corporation (other
than a merger which does not result in a
reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock
of the Corporation), (iii) any sale or transfer of
all or substantially all of the assets of the
Corporation, or (iv) any compulsory share exchange)
pursuant to which the Common Stock shall be
exchanged for, converted into, acquired for or
constitute solely the right to receive
21
<PAGE>
other
securities, cash or other property, then appropriate
provision shall be made as part of the terms of such
transaction whereby (1) in the case of any such
transaction not constituting a Common Stock
Fundamental Change (as defined in Section 9(I)) and
subject to funds being legally available therefor at
the time of such conversion, the holder of each
share of $2.625 Convertible Preferred Stock then
outstanding shall thereafter have the right to
convert such share only into the kind and amount of
securities, cash and other property receivable upon
such recapitalization, reclassification,
consolidation, merger, sale, transfer or share
exchange by a holder of the number of shares of
Common Stock into which such share of $2.625
Convertible Preferred Stock might have been
converted immediately prior to such transaction,
after giving effect, in the case of any Non-Stock
Fundamental Change, to any adjustment in the
Conversion Price required by the provisions of
Section 9(H), and (2) in the case of a Common Stock
Fundamental Change, the holder of each share of
$2.625 Convertible Preferred Stock then outstanding
shall thereafter have the right to convert such
share only into common stock of the kind received by
holders of Common Stock as a result of such Common
Stock Fundamental Change in an amount determined
pursuant to the provisions of Section 9(H). The
Corporation or the person formed by such
consolidation or resulting from such merger or which
acquired such assets or which acquired the
Corporation's shares, as the case may be, shall make
provisions in its certificate or articles of
incorporation or other constituent document to
establish such right. Such certificate or articles
of incorporation or other constituent document shall
provide for adjustments which, for events subsequent
to the effective date of such certificate or
articles or incorporation or other constituent
document, shall be nearly equivalent as may be
practicable to the adjustments provided for in this
Section 9. The above provisions shall similarly
apply to successive transactions of the type
described in this Section 9(E).
(F) Reservation of Shares; Transfer Taxes;
Etc. The Corporation shall at all times reserve and
keep available, out of its authorized and unissued
22
<PAGE>
stock, solely for the purpose of effecting the
conversion of the $2.625 Convertible Preferred
Stock, such number of shares of its Common Stock
free of preemptive rights as shall from time to time
be sufficient to effect the conversion of all shares
of $2.625 Convertible Preferred Stock from time to
time outstanding. The Corporation shall from time
to time, in accordance with the laws of the State of
Delaware, use its best efforts to increase the
authorized number of shares of Common Stock if at
any time the number of shares of authorized and
unissued Common Stock shall not be sufficient to
permit the conversion of all the then outstanding
shares of $2.625 Convertible Preferred Stock.
If any shares of Common Stock required to be
reserved for purposes of conversion of the $2.625
Convertible Preferred Stock hereunder require
registration with or approval of any governmental
authority under any Federal or State law before such
shares may be issued upon conversion, the
Corporation will in good faith and as expeditiously
as possible endeavor to cause such shares to be duly
registered or approved, as the case may be. If the
Common Stock is listed on the New York Stock
Exchange or any other national securities exchange,
the Corporation will, in good faith and as
expeditiously as possible, endeavor, if permitted by
the rules of such exchange, to list and keep listed
on such exchange, upon official notice of issuance,
all shares of Common Stock issuable upon conversion
of the $2.625 Convertible Preferred Stock.
(G) Prior Notice of Certain Events. In case:
(i) The Corporation shall (1) declare any
dividend (or any other distribution) on its Common
Stock, other than (A) a dividend payable in shares
of Common Stock or (B) a dividend payable solely in
cash for which no adjustment to the Conversion Price
is required by Section 9(C)(v) hereof or (2) declare
or authorize a redemption or repurchase of in excess
of 10% of the then outstanding shares of Common
Stock; or
(ii) The Corporation shall authorize the
granting to all holders of Common Stock of rights or
23
<PAGE>
warrants to subscribe for or purchase any shares of
stock of any class or of any other rights or
warrants; or
(iii) Of any reclassification of Common Stock
(other than a subdivision or combination of the
outstanding Common Stock, or a change in par value,
or from par value to no par value, or from no par
value to par value), or of any consolidation or
merger to which the Corporation is a party and for
which approval of any stockholders of the
Corporation shall be required, or of the sale or
transfer of all or substantially all of the assets
of the Corporation or of any compulsory share
exchange whereby the Common Stock is converted into
other securities, cash or other property; or
(iv) Of the voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation; then the Corporation shall cause to be
filed with the Transfer Agent, and shall cause to be
mailed to the holders of record of the $2.625 Convertible
Preferred Stock, at their last addresses as they
shall appear upon the stock transfer books of the
Corporation, at least 15 days prior to the
applicable record date hereinafter specified, a
notice stating (x) the date on which a record (if
any) is to be taken for the purpose of such
dividend, distribution, redemption, repurchase or
granting of rights or warrants or, if a record is
not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such
dividend, distribution, redemption, rights or
warrants are to be determined or (y) the date on
which such reclassification, consolidation, merger,
sale, transfer, share exchange, liquidation,
dissolution or winding up is expected to become
effective, and the date as of which it is expected
that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock
for securities or other property deliverable upon
such reclassification, consolidation, merger, sale,
transfer, share exchange, liquidation, dissolution
or winding up. No failure to mail such notice or
any defect therein or in the mailing thereof shall
affect the validity of the corporate action required
to be specified in such notice.
24
<PAGE>
(H) Adjustments in Case of Fundamental
Changes. Notwithstanding any other provision in
this Section 9 to the contrary, if any Fundamental
Change (as defined in Section 9(I)) occurs, then the
Conversion Price in effect will be adjusted
immediately after such Fundamental Change (which for
purposes of such adjustment shall be deemed to occur
on the earlier of the occurrence of such Fundamental
Change and the date, if any, fixed for determination
of stockholders entitled to receive the cash,
securities, property or other assets distributable
in such Fundamental Change to holders of the Common
Stock) as described below:
(i) In the case of a Non-Stock Fundamental
Change, the Conversion Price immediately following
such Non-Stock Fundamental Change shall be the lower
of (A) the Conversion Price in effect immediately
prior to such Non-Stock Fundamental Change, but
after giving effect to any other prior adjustments
effected pursuant to this Section 9, and (B) the
product of (1) the greater of the Applicable Price
(as defined in Section 9(I)) or the then applicable
Reference Market Price (as defined in Section 9(I))
and (2) a fraction, the numerator of which is $50
and the denominator of which is (x) the Redemption
Price applicable on the date of such Non-Stock
Fundamental Change (or, for the period commencing on
February 25, 1994 and ending on February 15, 1995
and the 12-month periods commencing February 16,
1995 and 1996, the product of 105.250%, 104.725% and
104.200%, respectively, times $50), plus (y) an
amount equal to full cumulative dividends thereon up
to but excluding the date of such Non-Stock
Fundamental Change.
(ii) In the case of a Common Stock Fundamental
Change, the Conversion Price immediately following
such Common Stock Fundamental Change shall be the
Conversion Price in effect immediately prior to such
Common Stock Fundamental Change, but after giving
effect to any other prior adjustments effected
pursuant to this Section 9, multiplied by a
fraction, the numerator of which is the Purchaser
Stock Price (as defined in Section 9(I)) and the
denominator of which is the Applicable Price;
provided, however, that in the event of a Common
Stock Fundamental
25
<PAGE>
Change in which (A) 100% of the
value of the consideration received by a holder of
Common Stock is common stock of the successor,
acquiror or other third party (and cash, if any,
paid with respect to any fractional interests in
such common stock resulting from such Common Stock
Fundamental Change) and (B) all of the Common Stock
shall have been exchanged for, converted into or
acquired for such common stock (and any cash paid
with respect to fractional interests) of the
successor, acquiror or other third party, the
Conversion Price immediately following such Common
Stock Fundamental Change shall be the Conversion
Price in effect immediately prior to such Common
Stock Fundamental Change multiplied by a fraction,
the numerator of which is one and the denominator of
which is the number of shares of common stock of the
successor, acquiror, or other third party received
by a holder of one share of Common Stock as a result
of such Common Stock Fundamental Change.
(I) Definitions. The following definitions
shall apply to terms used in this Section 9:
(1) "Applicable Price" shall mean (i) in
the event of a Non-Stock Fundamental Change in
which the holders of the Common Stock receive
only cash, the amount of cash received by the
holder of one share of Common Stock and (ii) in
the event of any other Non-Stock Fundamental
Change or any Common Stock Fundamental Change,
the average of the reported last sale price for
one share of the Common Stock (as defined in
Section 10 under "Closing Price") during the
ten Trading Days immediately prior to the
record date fixed for the determination of the
holders of Common Stock entitled to receive
cash, securities, property or other assets in
connection with such Non-Stock Fundamental
Change or Common Stock Fundamental Change, or,
if there is no such record date, prior to the
date upon which the holders of the Common Stock
shall have the right to receive such cash,
securities, property or other assets.
(2) "Common Stock Fundamental Change"
shall mean any Fundamental Change in which more
26
<PAGE>
than 50% by value (as determined in good faith
by the Board) of the consideration received by
the holders of Common Stock pursuant to such
transaction consists of common stock that, for
the ten Trading Days immediately prior to such
Fundamental Change, has been admitted for
listing or admitted for listing subject to
notice of issuance on a national securities
exchange or quoted on the Nasdaq National
Market of The Nasdaq Stock Market; provided,
however, that a Fundamental Change shall not be
a Common Stock Fundamental Change unless either
(i) the Corporation continues to exist after
the occurrence of such Fundamental Change and
the outstanding shares of $2.625 Convertible
Preferred Stock continue to exist as
outstanding shares of $2.625 Convertible
Preferred Stock, or (ii) not later than the
occurrence of such Fundamental Change, the
outstanding shares of $2.625 Convertible
Preferred Stock are converted into or exchanged
for shares of convertible preferred stock of a
corporation succeeding directly or indirectly
to the business of the Corporation, which
convertible preferred stock has powers,
preferences and relative, participating,
optional or other rights, and qualifications,
limitations and restrictions substantially
similar to those of the $2.625 Convertible
Preferred Stock.
(3) "Fundamental Change" shall mean the
occurrence of any transaction or event or
series of transactions or events pursuant to
which all or substantially all of the Common
Stock shall be exchanged for, converted into,
acquired for or constitute solely the right to
receive cash, securities, property or other
assets (whether by means of an exchange offer,
liquidation, tender offer, consolidation,
merger, combination, reclassification,
recapitalization or otherwise); provided,
however, in the case of any such series of
transactions or events, for purposes of
adjustment of the Conversion Price, such
Fundamental Change shall be deemed to have
occurred when substantially all of the Common
Stock of the Corporation shall be exchanged
for, converted into, or acquired for
27
<PAGE>
or constitute solely the right to receive cash,
securities, property or other assets, but the
adjustment shall be based upon the
consideration which the holders of Common Stock
received in such transactions or event as a
result of which more than 50% of the Common
Stock of the Corporation shall have been
exchanged for, converted into, or acquired for
or constitute solely the right to receive cash,
securities, property or other assets; provided,
further, that such term does not include (i)
any such transaction or event in which the
Corporation and/or any of its subsidiaries are
the issuers of all the cash, securities,
property or other assets exchanged, acquired or
otherwise issued in such transaction or event,
or (ii) any such transaction or event in which
the holders of Common Stock receive securities
of an issuer other than the Corporation if,
immediately following such transaction or
event, such holders hold a majority of the
securities having the power to vote normally in
the election of directors of such other issuer
outstanding immediately following such
transaction or other event.
(4) "Non-Stock Fundamental Change" shall
mean any Fundamental Change other than a Common
Stock Fundamental Change.
(5) "Purchaser Stock Price" shall mean,
with respect to any Common Stock Fundamental
Change, the average of the Closing Prices (as
defined in Section 10) for one share of the
common stock received in such Common Stock
Fundamental Change during the ten Trading Days
immediately prior to the date fixed for the
determination of the holders of Common Stock
entitled to receive such common stock, or if
there is no such date, prior to the date upon
which the holders of the Common Stock shall
have the right to receive such common stock.
(6) "Reference Market Price" shall
initially mean $21.167 (which is an amount
equal to 66 2/3% of the Closing Price for the
Common Stock on February 17, 1994), and in the
event
28
<PAGE>
of any adjustment to the Conversion Price
other than as a result of a Fundamental Change,
the Reference Market Price shall also be
adjusted so that the ratio of the Reference
Market Price to the Conversion Price after
giving effect to any such adjustment shall
always be the same as the ratio of the initial
Reference Market Price to the initial
Conversion Price of $39.750 per share.
(J) Dividend or Interest Reinvestment Plans;
Other. Notwithstanding the foregoing provisions,
the issuance of any shares of Common Stock pursuant
to any plan providing for the reinvestment of
dividends or interest payable on securities of the
Corporation and the investment of additional
optional amounts in shares of Common Stock under any
such plan, and the issuance of any shares of Common
Stock or options or rights to purchase such shares
pursuant to any employee benefit plan or program of
the Corporation, or pursuant to any option, warrant,
right or exercisable, exchangeable or convertible
security outstanding as of the date the $2.625
Convertible Preferred Stock was first designated,
shall not be deemed to constitute an issuance of
Common Stock or exercisable, exchangeable or
convertible securities by the Corporation to which
any of the adjustment provisions described above
applies. There shall be no adjustment of the
Conversion Price in case of the issuance of any
stock (or securities convertible into or
exchangeable for stock) of the Corporation except as
described in this Section 9. Except as expressly
set forth in this Section 9, if any action would
require adjustment of the Conversion Price pursuant
to more than one of the provisions described above,
only one adjustment shall be made and such
adjustment shall be the amount of adjustment which
has the highest absolute value.
(K) For purposes of this Section 9, the number
of shares of Common Stock at any time outstanding
shall not include any shares of Common Stock owned
or held by or for the account of the Corporation.
10. Definitions. For purposes of this
Certificate of Designation of the $2.625 Convertible
Pre-
29
<PAGE>
ferred Stock, the following terms shall have the
meanings indicated:
(A) "Business Day" shall mean any day other
than a Saturday, Sunday, or a day on which
commercial banks in The City of New York are
authorized or required by law or executive order to
close or a day which is or is declared a national or
New York state holiday;
(B) "Closing Price" with respect to any
securities on any day shall mean the closing sale
price regular way on such day or, in case no such
sale takes place on such day, the average of the
reported closing bid and asked prices, regular way,
in each case on the New York Stock Exchange, or, if
such security is not listed or admitted to trading
on such Exchange, on the principal national
securities exchange or quotation system on which
such security is quoted or listed or admitted to
trading, or, if not quoted or listed or admitted to
trading on any national securities exchange or
quotation system, the average of the closing bid and
asked prices of such security on the over-the-
counter market on the day in question as reported by
the National Quotation Bureau Incorporated, or a
similarly generally accepted reporting service, or
if not so available, in such manner as furnished by
any New York Stock Exchange member firm selected
from time to time by the Board for that purpose or a
price determined in good faith by the Board.
(C) "Fair Market Value" shall mean the amount
which a willing buyer would pay a willing seller in
an arm's length transaction.
(D) "Trading Day" shall mean (x) if the
applicable security is listed or admitted for
trading on the New York Stock Exchange or another
national securities exchange, a day on which the New
York Stock Exchange or another national securities
exchange is open for business or (y) if the
applicable security is quoted on the Nasdaq National
Market of The Nasdaq Stock Market, a day on which
trades may be made on such Nasdaq National Market or
(z) if the applicable security is not so listed,
admitted for trading or quoted, any day other than a
Saturday or
30
<PAGE>
Sunday or a day on which banking
institutions in the State of New York are authorized
or obligated by law or executive order to close.
(E) "Transfer Agent" shall mean Chemical
Shareholder Services, Group, Inc. or any other
national or state bank or trust company having
combined capital and surplus of at least
$100,000,000 and designated by the Corporation as
the transfer agent and/or registrar of the $2.625
Convertible Preferred Stock, or if no such
designation is made, the Corporation.
31
<PAGE>
IN WITNESS WHEREOF, Western Gas Resources, Inc.
has caused this Certificate to be made under the seal of
the Corporation and signed by Bill M. Sanderson, its
President, and attested by John C. Walter, its Secretary,
this 21st day of February, 1994.
WESTERN GAS RESOURCES, INC.
By: /s/signature
Name: Bill M. Sanderson
Title: President
[SEAL]
Attest:
/s/signature
Name: John C. Walter
Title: Secretary
<PAGE>
February 22, 1994
Western Gas Resources, Inc.
12200 North Peco Street
Denver, Colorado 80234
Re: Registration Statement on Form S-3
Dear Sirs:
In connection with the filing by Western Gas
Resources, Inc. of the Registration Statement on Form S-3
(the "Registration Statement"), with the Securities and
Exchange Commission, you have requested our opinion
concerning certain federal income tax considerations to
persons who acquire $2.625 Cumulative Convertible
Preferred Stock (the "Convertible Preferred Stock").
The facts, as we understand them, and upon
which we rely in rendering our opinion expressed herein,
are set forth in the Registration Statement. Based upon
and subject to (i) the accuracy of such facts and (ii)
the offering being consummated in the manner described in
the Registration Statement, the information in the
prospectus included in the Registration Statement under
the heading "Certain Federal Income Tax Considerations,"
while not purporting to discuss all possible federal
income tax consequences to purchasers that acquire
Convertible Preferred Stock expresses our opinion as to
the material federal income tax considerations applicable
to such purchasers.
This opinion is furnished to you solely for use in
connection with the Registration Statement and may not be
used, circulated, quoted or otherwise referred to for any
other purposes without our express written permission.
We consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to our
name under the caption "Legal Matters" in the prospectus
included in the Registration Statement. In giving this
<PAGE>
consent, we do not agree that we come within the category
of persons whose consent is required.
Very truly yours,
/s/signature
Skadden, Arps, Slate, Meagher & Flom
<PAGE>
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.
WESTERN GAS RESOURCES, INC.
Registrant
Date: February 24, 1994 By: /s/signature
William J. Krysiak
Vice President - Controller
(Principal Financial and
Accounting Officer)
