<PAGE> 1
AS filed with the Securities and Exchange Commission on October 1, 1996
Registration No. 33 -_______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
--------------------
TOM BROWN, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 95-1949781
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
508 WEST WALL STREET, SUITE 500 79701
MIDLAND, TEXAS (Zip Code)
(Address of principal executive offices)
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TOM BROWN, INC. 1993 STOCK OPTION PLAN
(Full title of the plan)
DONALD L. EVANS
Chairman of the Board of Directors and Chief Executive Officer
500 Empire Plaza Building
Midland, Texas 79701
(Name and address of agent for service)
915-682-9715
(Telephone number, including area code, of agent for service)
Copy to:
Thomas W. Ortloff
Lynch, Chappell & Alsup
300 N. Marienfeld, Suite 700
Midland, Texas 79701
(915) 683-3351
CALCULATION OF REGISTRATION FEE
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=============================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
To Be Registered Registered Per Share* Offering Price Fee
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.10 par value 275,000 $17.9375 $4,932,813 $1,700.97
- ----------------------------------------------------------------------------------------------
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* Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(h) on the basis of the average of the high and low sales prices
of Common Stock of Tom Brown, Inc. on September 26, 1996.
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EXPLANATORY NOTE
This Registration Statement relates to the registration of 275,000
additional shares of Common Stock authorized for issuance under the
Registrant's 1993 Stock Option Plan. Accordingly, pursuant to General
Instruction "E" of Form S-8, the contents of the Registrant's Registration
Statement No. 33-60842 are hereby incorporated by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the issuance of the Common Stock issuable upon exercise of
the options has been passed upon for the Registrant by Lynch, Chappell & Alsup,
a Professional Corporation, Midland, Texas. James M. Alsup, a shareholder in
the firm of Lynch, Chappell & Alsup, is the Secretary of the Registrant and the
beneficial owner of 10,000 shares of Common Stock.
ITEM 8. EXHIBITS
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<CAPTION>
Exhibit No. Description
- ---------- -----------
<S> <C>
4.1 -- Certificate of Incorporation, as amended, of Registrant (Incorporated by reference to Exhibit No. 4 in the
Registrant's Form 10-Q Report for the quarterly period ended June 30, 1996 and filed with the Securities and
Exchange Commission on August 14, 1996)
4.2 -- Bylaws of Registrant (Incorporated by reference to Exhibit No. 3.2 in the Registrant's Form 8-B Registration
Statement dated July 15, 1987 and filed with the Securities and Exchange Commission on July 17, 1987)
4.3 -- Rights Agreement dated as of March 5, 1991 between the Registrant and American Stock Transfer & Trust
Company (Incorporated by reference to Exhibit No. 4(a) in the Registrant's Form 8-K Report dated March 12,
1991 and filed with the Securities and Exchange Commission on March 15, 1991)
5.1 -- Opinion and Consent of Lynch, Chappell & Alsup, a Professional Corporation
23.1 -- Consent of Arthur Andersen LLP
25.1 -- Power of Attorney contained on Page 6 hereof
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ITEM 9. UNDERTAKINGS
(1) The undersigned Registrant hereby undertakes to deliver or cause
to be delivered with the prospectus to each employee to whom the prospectus is
sent or given a copy of Registrant's Annual Report to Stockholders for its last
fiscal year, unless such employee otherwise has received a copy of such report,
in which case the Registrant shall state in the prospectus that it will promptly
furnish, without charge, a copy of such report on written request of the
employee. If the last fiscal year of the Registrant has ended within 120 days
prior to the use of the prospectus, the annual report of the Registrant for the
preceding fiscal year may be so delivered, but within such 120-day period the
annual report for the last fiscal year will be furnished to each such employee.
(2) The undersigned Registrant hereby undertakes to transmit or
cause to be transmitted to all employees participating in the Tom Brown, Inc.
1993 Stock Option Plan, who do not otherwise receive such material as
stockholders of the Registrant, at the time and in the manner such material is
sent to its stockholders, copies of all reports, proxy statements and other
communications distributed to its stockholders generally.
(3) The undersigned Registrant hereby undertakes 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 Exchange Act that is incorporated by reference in the registration
statement 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.
(4) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
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provided, however, that paragraphs (4)(a)(i) and (4)(a)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(b) 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.
(c) 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.
(5) 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 the foregoing provisions, 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 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.
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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 duty caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Midland, Texas, on the 30th day of
September, 1996.
TOM BROWN, INC.
BY: /s/ DONALD L. EVANS
------------------------
Donald L. Evans, Chairman of
the Board of Directors and Chief
Executive Officer
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<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Donald L. Evans and R. Kim Harris and each of
them, either one of whom may act without joinder of the other, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them severally, full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, and each of them, or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated,
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SIGNATURE Title Date
- ----------------- ------------ -----------
<S> <C> <C>
/s/ DONALD L. EVANS Chairman of the Board of Directors
- -------------------------- and Chief Executive Officer
Donald L. Evans (Principal Executive Officer) September 30, 1996
/s/ WILLIAM R. GRANBERRY President, Chief Operating
- -------------------------- Officer and Director September 30, 1996
William R. Granberry
/s/ R. KIM HARRIS Controller (Principal Financial
- -------------------------- Officer) September 30, 1996
R. Kim Harris
/s/ THOMAS C. BROWN Director September 30, 1996
- --------------------------
Thomas C. Brown
/s/ DAVID M. CARMICHAEL Director September 30, 1996
- ---------------------------
David M. Carmichael
/s/ HENRY GROPPE Director September 30, 1996
- ---------------------------
Henry Groppe
/s/ EDWARD W. LeBARON, JR. Director September 30, 1996
- ---------------------------
Edward W. LeBaron, Jr.
/s/ GEORGE M. SIMMONS Director September 30, 1996
- ---------------------------
George M. Simmons
/s/ JAMES B. WALLACE Director September 30, 1996
- ---------------------------
James B. Wallace
/s/ ROBERT H. WHILDEN, JR. Director September 30, 1996
- ---------------------------
Robert H. Whilden, Jr.
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<PAGE> 7
INDEX TO EXHIBITS
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Exhibit No. Description
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<S> <C>
4.1 -- Certificate of Incorporation, as amended, of Registrant (Incorporated by reference to Exhibit No. 4 in the
Registrant's Form 10-Q Report for the quarterly period ended June 30, 1996 and filed with the Securities and
Exchange Commission on August 14, 1996)
4.2 -- Bylaws of Registrant (Incorporated by reference to Exhibit No. 3.2 in the Registrant's Form 8-B Registration
Statement dated July 15, 1987 and filed with the Securities and Exchange Commission on July 17, 1987)
4.3 -- Rights Agreement dated as of March 5, 1991 between the Registrant and American Stock Transfer & Trust
Company (Incorporated by reference to Exhibit No. 4(a) in the Registrant's Form 8-K Report dated March 12,
1991 and filed with the Securities and Exchange Commission on March 15, 1991)
5.1 -- Opinion and Consent of Lynch, Chappell & Alsup, a Professional Corporation
23.1 -- Consent of Arthur Andersen LLP
25.1 -- Power of Attorney contained on Page 6 hereof
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<PAGE> 1
Exhibit 5.1
[LYNCH, CHAPPELL & ALSUP LETTERHEAD]
September 30, 1996
Tom Brown, Inc.
508 W. Wall, Suite 500
Midland, Texas 79701
Re: Sale of up to 275,000 shares of Common Stock
Gentlemen:
We have acted as counsel to Tom Brown, Inc., a Delaware corporation (the
"Company"), in connection with the proposed issuance and sale by the Company of
up to 275,000 additional shares of Common Stock, $.10 par value ("Common
Stock"), of the Company pursuant to the exercise of stock options granted or to
be granted by the Company under the Company's 1993 Stock Option Plan, as
amended May 24, 1996 (the "Plan"), and which shares of Common Stock are the
subject of a Registration Statement on Form S-8 (the "Registration Statement")
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
We have made such inquiries and examined such documents as we have
considered necessary or appropriate for the purpose of giving the opinions
hereinafter set forth. We have assumed the genuineness and authenticity of all
signatures on all original documents, the authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as copies and the due authorization, execution, delivery or
recordation of all documents where due authorization, execution or recordation
are prerequisites to the effectiveness thereof.
Based upon the foregoing, and having regard for such legal considerations as
we deem relevant, we are of the opinion that:
(i) the Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware; and
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(ii) the Plan has been duly and validly authorized and adopted, and the
additional 275,000 shares of Common Stock that may be issued and
sold by the Company from time to time upon the exercise of stock
options granted or to be granted in accordance with the
Company's Plan will, upon issuance and delivery against
payment therefor, be duly authorized and legally issued,
full paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this Firm under the heading
"Interests of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
LYNCH, CHAPPELL & ALSUP,
a Professional Corporation
By: /s/ THOMAS W. ORTLOFF
------------------------------------
Thomas W. Ortloff
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 23, 1996
included in the Annual Report on Form 10-K of Tom Brown, Inc. for the year
ended December 31, 1995 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
September 24, 1996
