<PAGE>
As filed with the Securities and Exchange Commission on June 20, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WESTERN GAS RESOURCES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-1127613
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
12200 NORTH PECOS STREET
DENVER, COLORADO 80234
(303) 452-5603
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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WESTERN GAS RESOURCES, INC.'S 1997 STOCK OPTION PLAN
(Full title of the plan)
----------------------------------------
JOHN C. WALTER
EXECUTIVE VICE PRESIDENT
WESTERN GAS RESOURCES, INC.
12200 N. PECOS STREET
DENVER, COLORADO 80234
(303) 452-5603
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Title of securities Amount to registered Proposed Maximum Proposed Maximum Amount of
to be registered Offering Price Aggregate Offering Registration Fee
Per Share (1) Price (1)
- -------------------------------------------------------------------------------------------------------
Common Stock, par 1,000,000 shares $19.375 $19,375,000 $5,871
value $.10 per share
- -------------------------------------------------------------------------------------------------------
</TABLE>
(1) The proposed maximum offering price per share was estimated solely for the
purpose of calculating the registration fee in accordance with Rule 457(c)
and is based on the average of the high and low prices for the Common Stock
of the Registrant on the New York Stock Exchange on June 17, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation by Reference.
The following documents are incorporated by reference in this registration
statement:
(a) Western Gas Resources, Inc.'s (the "Registrant") latest Annual Report on
Form 10-K, filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act").
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the annual
report referred to in (a) above.
(c) The description of the Registrant's Common Stock which is contained in the
Registrant's registration statements filed under Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
Item 4. Description of Securities.
The class of securities to be offered hereby are registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
John C. Walter, who is giving an opinion regarding the legality of the
securities registered hereby, is Executive Vice President, Vice President-
General Counsel and Secretary of the Registrant. In addition, Mr. Walter will
be eligible to be granted options to purchase the securities registered hereby.
Richard Robinson, who is a director of the Registrant, is a stockholder of
Lentz, Evans and King P.C., which is giving an opinion regarding the non-
applicability of ERISA to the Registrant's 1997 Stock Option Plan. Mr. Robinson
will not be eligible to be granted options to purchase the securities registered
hereby.
Item 6. Indemnification of Directors and Officers.
The Registrant's Bylaws incorporate substantially the provisions of the
General Corporation Law of the State of Delaware providing for indemnification
of directors and officers of the Registrant against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred
2
<PAGE>
in connection with any proceeding arising by reason of the fact that such person
is or was an officer or director of the Registrant.
As permitted under Delaware law, the Registrant's Certificate of Incorporation
provides for the elimination of the personal liability of a director to the
corporation and its stockholders for monetary damages arising from a breach of
the director's fiduciary duty of care. The provision is limited to monetary
damages, applies only to a director's actions while acting within his capacity
as a director, and does not entitle the Registrant to limit director liability
for any judgment resulting from (a) any breach of the director's duty of loyalty
to the Registrant or its stockholders; (b) acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of the law; (c)
paying an illegal dividend or approving an illegal stock repurchase; or (d) any
transaction from which the director derived an improper benefit. In addition,
Section 145 of the General Corporation Law of the State of Delaware provides
generally that a person sued as a director, officer, employee or agent of a
corporation may be indemnified by the corporation for reasonable expenses,
including counsel fees, if in the case of other than derivative suits, he has
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation (and in the case of a criminal
proceeding, had no reasonable cause to believe that his conduct was unlawful).
In the case of a derivative suit, an officer, employee or agent of the
Registrant who is not protected by the Certificate of Incorporation, may be
indemnified by the Registrant for reasonable expenses, including attorneys'
fees, if he has acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, except that no
indemnification shall be made in the case of a derivative suit in respect of any
claim as to which an officer, employee or agent has been adjudged to be liable
to the Registrant unless the Delaware Court of Chancery or the court in which
such action or suit was brought shall determine that such person is fairly and
reasonably entitled to indemnity for proper expenses. Indemnification is
mandatory in the case of a director or officer who is successful on the merits
in defense of a suit against him.
The Registrant intends to enter into indemnification agreements with each of
its directors, pursuant to which, among other things, places the burden of proof
upon the Registrant to prove in any particular instance that a director was not
entitled to indemnification and which allows a director to seek the appointment
of an independent legal counsel to determine whether indemnification is
appropriate following certain types of changes of control of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement.
Exhibit Number Description
- -------------- -----------
5.1 Opinion of John C. Walter, as to the legality of the securities
offered hereby.
5.2 Opinion of Lentz, Evans & King, P.C., as to the non-
applicability of ERISA.
3
<PAGE>
23.1 Consent of John C. Walter (included as part of Exhibit 5.1
hereto, Opinion of John C. Walter).
23.2 Consent of Lentz, Evans & King, P.C. (included as part of
Exhibit 5.2 hereto, Opinion of Lentz, Evans & King, P.C.).
23.3 Consent of Price Waterhouse LLP
25.1 Powers of Attorney
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(i) that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(ii) to remove from registration by means of a post-effective amendment, any
of the securities being registered which remain unsold at the termination of
the offering.
(iii) that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant
to section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offering therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(iv) insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to any indemnification agreement or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed in its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado, on June 20, 1997.
WESTERN GAS RESOURCES, INC.
By:/s/ Brion G. Wise
------------------------------
Brion G. Wise, Chairman of the
Board and Chief Executive Officer
5
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Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Brion G. Wise Director, Chairman of the Board June 20, 1997
- ------------------------ and Chief Executive Officer
Brion G. Wise (Principal Executive Officer)
*
- ------------------------ Director and Vice Chairman June 20, 1997
Walter L. Stonehocker of the Board
*
- ------------------------ Director June 20, 1997
Dean Phillips
*
- ------------------------ Director June 20, 1997
Joseph E. Reid
*
- ------------------------ Director June 20, 1997
Richard B. Robinson
*
- ------------------------ Director June 20, 1997
Bill M. Sanderson
- ------------------------ Director June 20, 1997
Ward Sauvage
*
- ------------------------ Director June 20, 1997
James A. Senty
/s/ William J. Krysiak Vice President - Finance June 20, 1997
- ------------------------ (Principal Financial and
William J. Krysiak Accounting Officer)
*By:/s/ John C. Walter
--------------------
John C. Walter,
Attorney-in-fact pursuant to a
power of attorney filed as an
exhibit to this Registration
Statement
6
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EXHIBIT 5.1
JOHN C. WALTER
12200 North Pecos Street
Denver, Colorado 80234
June 20, 1997
Western Gas Resources, Inc.
12200 North Pecos Street
Denver, Colorado 80234
Gentlemen:
I am the general counsel for Western Gas Resources, Inc., a Delaware
corporation (the "Corporation"). This opinion is being rendered in connection
with the registration on Form S-8 (the "Registration Statement") of 1,000,000
shares of the Corporation's common stock, par value $0.10 per share (the "Common
Stock"), to be issued pursuant to options granted under the Corporation's 1997
Stock Option Plan (the "Plan").
I have examined the originals or copies certified or otherwise authenticated
to my satisfaction of such corporate records of the Corporation, certificates of
public officials and of officers of the Corporation and other agreements,
instruments and documents as I have deemed necessary as a basis for the opinions
contained herein. I have also participated in the preparation of the
Registration Statement.
On the basis of the foregoing and the assumptions hereinafter set forth, and
in reliance thereon, I advise you that, in my opinion:
1. The Corporation has been duly incorporated and is validly existing and
in good standing under the laws of the State of Delaware.
2. The shares of Common Stock to be issued pursuant to the Plan have been
duly authorized by the Corporation and, when issued and sold by the
Corporation in accordance with the provisions of the Plan, will have been
validly issued and will be fully paid and non-assessable.
I am a member of the Bar of the State of Colorado only and do not purport to
be expert on the laws of any other state or jurisdiction other than the State of
Colorado and the United States. Insofar as opinions herein expressed relate to
matters governed by Delaware law, I have relied solely upon a reading of the
applicable statutes and records of the Corporation and certificates of public
officials. I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Respectfully submitted,
John C. Walter, Esq.
<PAGE>
EXHIBIT 5.2
LENTZ, EVANS & KING, P.C.
2900 Lincoln Center Building
Denver, Colorado 80264
June 17, 1997
VIA FAX NO. 252-3362
- --------------------
Mr. Don Kronenberg
Western Gas Resources, Inc.
1220 North Pecos Street
Suite 230
Denver, Colorado 80234-3439
Re: Western Gas Resources, Inc. 1997 Stock Option Plan
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Dear Mr. Kronenberg:
At your request, we have considered the application of the Employee
Retirement Income Security Act of 1974 ("ERISA") to the Western Gas Resources,
Inc. 1997 Stock Option Plan. Our consideration was made solely on the basis of
our review of the Western Gas Resources, Inc. 1997 Stock Option Plan (the
"Plan") and the 1997 Stock Option Agreements thereunder (the "Agreements"). It
is our opinion that the Plan and the Agreements thereunder are not subject to
the reporting and disclosure requirements of ERISA.
You requested our opinion as to whether the Plan has complied with all of the
applicable reporting requirements of ERISA. As discussed below, the Plan is not
subject to the reporting and disclosure requirements of ERISA and, accordingly,
no compliance with those provisions is necessary or appropriate.
ERISA (S)4(a) provides that Title I of ERISA shall apply only to employee
benefit plans. Title I of ERISA sets forth all of the applicable reporting and
disclosure requirements. Accordingly, if the Plan is not an employee benefit
plan as defined under ERISA, it is not subject to the reporting and disclosure
and other provisions of Title I. See Labor Reg. (S)2510.3-3(a). ERISA (S)3(3)
---
defines an employee benefit plan as an employee welfare benefit plan or employee
pension benefit plan or a plan which is both an employee welfare benefit plan
and an employee pension benefit plan.
ERISA (S)3(1) provides that an employee welfare benefit plan is a plan which
is established and maintained for the purpose of providing one or more of the
following:
(a) Medical, surgical or hospital care or benefits, benefits in the event
of sickness, accident, disability, death or unemployment, vacation benefits,
apprenticeship or other training programs, day care centers, scholarship funds
or prepaid legal services; or
(b) Certain benefits described in (S)302(c) of the Labor Management
Relations Act.
<PAGE>
ERISA (S)3(2) defines an employee pension benefit plan as a plan which is
established or maintained for the express purpose of providing retirement income
to employees or results in a deferral of income by employees for periods
extending to the termination of covered employment or beyond.
In ERISA Opinion No. 79-50A (August 2, 1979), the Pension and Welfare
benefits Administration, U.S. Department of Labor, determined that certain stock
option plans similar to the Plan were not employee benefit plans within the
meaning of ERISA (S)3(3). The Plans in question granted options to employees to
purchase common stock of the employer. The options could be exercised only
during a five year period commencing on the date of grant. The options could be
exercised only with respect to 20% of the number of shares to which the grant
applies for each one year period following the date of grant. The options could
not be assigned or transferred in any manner. Options could be exercised only
while an option holder was employed by the employer or within sixty days after
termination of employment. In the event of death of the option holder, the
option could be exercised by his beneficiary within one year from the date of
death.
Section 8 to the Plan, concerning exercise of options, is similar to the
facts set forth in ERISA Opinion No. 79-50A. The sixty day exercise period
following termination of employment is consistent with the sixty day requirement
set forth in ERISA Opinion No. 79-50A. In addition, the one hundred eighty day
exercise period following death is within the one year period contained in the
facts of ERISA Opinion No. 79-50A. The opinion letter does not address
termination of employment as a result of disability.
With respect to coverage of the stock option plans in ERISA Opinion No. 79-
50A as employee welfare benefit plans, the Department of Labor held that since
the plans are not established and maintained to provide any of the benefits
enumerated above, the plans were not employee welfare benefit plans. The
Department of Labor did not express a specific reasoning as to why the stock
option plans were not employee pension benefit plans within the meaning of ERISA
(S)3(2), but it appears this finding was based on the fact that options could be
exercised during employment and only within a limited period following
termination of employment and, accordingly, did not provide retirement income to
the employees or did not result in deferral of income extending to termination
of employment or beyond. See also Labor Reg. (S)2510.3-2(c), which provides
---
that bonus payments made by the employer do not constitute an employee pension
benefit plan unless such payments are systematically deferred to the termination
of covered employment or beyond. Where, as here, options are granted during the
term of employment and must be exercised during employment or shortly
thereafter, the benefit to the employees is not systematically deferred to the
termination of employment or beyond.
It should be emphasized that the actual operation of the Plan, including
communications to the employees eligible to participate in the Plan, may make
the plan subject to the provisions of ERISA Title I. The Plan must not be
administered in any manner which would have the effect of providing retirement
income to the employees or which would result in a deferral of income to the
employees extending to termination of employment or beyond. See, for example,
---
ERISA Opinion No. 90-17A. The following communications to employees concerning
the Plan should be avoided:
a. Suggestions that the Plan is established to provide or supplement
retirement income to the employees;
<PAGE>
b. Recommendations that the employees defer the exercise of options or the
sale of stock purchased pursuant to options granted under the Plan to periods
following termination of employment; or
c. Discouraging employees from exercising options or from selling stock
acquired pursuant to the exercise of options, during the course of employment.
An ERISA opinion letter may be relied on only by the parties described in the
request for opinion. See ERISA Proc. 76-1 (41 FR 36281). Therefore, the
---
opinion expressed by the Department of Labor in ERISA Opinion No. 79-50A is not
binding upon the Department of Labor with respect to other parties. However,
this opinion letter does set forth the general view and opinion of the
Department of Labor with respect to similar types of plans and programs.
The opinion expressed herein is based on the Employee Retirement Income
Security Act of 1974 and the regulations and opinions issued thereunder as of
the date of this opinion. The opinion is based on the facts as stated in the
Plan. Any alterations in the Plan or Agreement documents or the actual
operation of the Plan may adversely affect our opinion, particularly with
respect to the time period following termination of employment in which the
option holder may exercise an option.
The expression of our opinion indicates that we consider, more likely than
not, that the courts will ultimately sustain the position indicated. However,
it must be emphasized that a legal opinion merely represents our view as to the
current status of the law and the conclusions the court would be most like to
reach if it were to decide the issue. A legal opinion is not binding on the
Department of Labor or any court, nor can it be interpreted as a guarantee of
the likely outcome if the result should be litigated.
Yours truly,
LENTZ, EVANS AND KING P.C.
By
Fred J. Diss
FJD/mm
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 7, 1997, which appears on page
25 of Western Gas Resources, Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1996.
PRICE WATERHOUSE LLP
Denver, Colorado
June 20, 1997
<PAGE>
EXHIBIT 25.1
POWER OF ATTORNEY
The undersigned, an officer and/or a director of Western Gas Resources, Inc.
(the "Company"), a Delaware corporation, hereby authorizes and appoints Lanny F.
Outlaw, John C. Walter and William J. Krysiak, and each of them (with full power
to act alone), as his attorney-in-fact, with full power of substitution and
resubstitution, to execute and cause to be filed any and all documents,
including, but not limited to, a Registration Statement on Form S-8 (and any
amendment thereto), to be filed with the Securities and Exchange Commission by
or on behalf of the Company, either as an officer or as director, in connection
with the filing of a Registration Statement on Form S-8 relating to the
Company's 1997 Stock Option Plan, and, hereby grants unto each said attorney-in-
fact full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection with the such filing, as fully
as such person could do, and, hereby verifying and confirming all that each said
attorney-in-fact, or his substitutes, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has signed and dated this document on the
date set forth opposite his signature below.
Signature Date
--------- ----
_________________________________ June 20, 1997
