<PAGE> 1
As filed with the Securities and Exchange Commission on June 11, 1998
Registration No. 333 -__________
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)
DELAWARE 95-1949781
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
508 WEST WALL STREET, SUITE 500
MIDLAND, TEXAS 79701
Address of principal executive offices) (Zip Code)
TOM BROWN, INC. 1993 STOCK OPTION PLAN
(Full title of the plan)
WILLIAM R. GRANBERRY
President
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:
Bruce R. DeBoer, Esq.
Tom Brown, Inc.
508 West Wall, Suite 500
Midland, Texas 79701
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Each Class Maximum Maximum Amount of
of Securities To Be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share* Offering Price Fee
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.10 par value 500,000 $16.10 $8,050,000 $2,374.75
- ----------------------------------------------------------------------------------------------
</TABLE>
* Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low
sales prices of the Registrant's Common Stock as reported on the NASDAQ
National Market System on June 9, 1998.
<PAGE> 2
EXPLANATORY NOTE
This Registration Statement relates to the registration of 500,000
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, No.
333-13157 and No. 333-42011 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 Assistant Secretary of the Registrant
and the beneficial owner of 10,000 shares of Common Stock of the Registrant.
ITEM 8. EXHIBITS
Exhibit No. Description
* 5 -- Opinion of Lynch, Chappell & Alsup, a Professional
Corporation
*23.1 -- Consent of Lynch, Chappell & Alsup, a Professional
Corporation (contained in Exhibit No. 5)
*23.2 -- Consent of Arthur Andersen LLP
*23.3 -- Consent of Williamson Petroleum Consultants, Inc.
*23.4 -- Consent of Ryder Scott Company
*24 -- Power of Attorney contained on Page 6 hereof
- --------------
* Filed herewith.
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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 officer, director or 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 officer, director, or
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 officer, director or
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 officer,
director or employee.
(2) The undersigned Registrant hereby undertakes to transmit or
cause to be transmitted to all officers, directors and 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
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 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, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Securities and
Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 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 duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Midland, State of Texas, on the 8th day of
June, 1998.
TOM BROWN, INC.
By: /s/ William R. Granberry
--------------------------------
William R. Granberry, President
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William R. Granberry 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.
Signature Title Date
/s/ Donald L. Evans Chairman of the Board of Directors
- -------------------------- and Chief Executive Officer
Donald L. Evans (Principal Executive Officer) June 8, 1998
/s/ William R. Granberry President, Chief Operating
- -------------------------- Officer andDirector June 8, 1998
William R. Granberry
/s/ R. Kim Harris Controller (Principal June 8, 1998
- -------------------------- Financial Officer)
R. Kim Harris
/s/ Thomas C. Brown Director June 8, 1998
- --------------------------
Thomas C. Brown
/s/ David M. Carmichael Director June 8, 1998
- --------------------------
David M. Carmichael
/s/ Henry Groppe Director June 8, 1998
- --------------------------
Henry Groppe
/s/ Edward W. LeBaron, Jr. Director June 8, 1998
- --------------------------
Edward W. LeBaron, Jr.
/s/ Clyde E. McKenzie Director June 8, 1998
- --------------------------
Clyde E. McKenzie
/s/ James B. Wallace Director June 8, 1998
- --------------------------
James B. Wallace
/s/ Robert H. Whilden, Jr. Director June 8, 1998
- --------------------------
Robert H. Whilden, Jr.
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EXHIBIT INDEX
Exhibit No. Description
* 5 -- Opinion of Lynch, Chappell & Alsup, a Professional Corporation
*23.1 -- Consent of Lynch, Chappell & Alsup, a Professional Corporation
(contained in Exhibit No. 5)
*23.2 -- Consent of Arthur Andersen LLP
*23.3 -- Consent of Williamson Petroleum Consultants, Inc.
*23.4 -- Consent of Ryder Scott Company
*24 -- Power of Attorney contained on Page 6 hereof
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* Filed herewith.
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EXHIBIT 5
LYNCH, CHAPPELL & ALSUP
A PROFESSIONAL CORPORATION
ATTORNEYS
THE SUMMIT, SUITE 700
300 NORTH MARIENFELD
MIDLAND, TEXAS 79701
TELEPHONE: (915) 683-3351
FACSIMILE: (915) 683-8346
June 11, 1998
Tom Brown, Inc.
508 W. Wall, Suite 500
Midland, Texas 79701
Re: Tom Brown, Inc. 1993 Stock Option Plan; Sale of up to 500,000
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 500,000 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 (the "Plan"), as further described in a Registration Statement on Form S-8
filed by the Company with the Securities and Exchange Commission (herein
referred to as the "Registration Statement").
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 the Plan has been
duly and validly authorized and adopted, and the 500,000 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,
as described in the Registration Statement, will, upon
<PAGE> 2
issuance and delivery against payment therefor, be duly legally issued, full
paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement and to the
statements made regarding our Firm and to the use of our name under the heading
"Item 5. 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 23.2
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 25, 1998
included in the Annual Report on Form 10-K of Tom Brown, Inc. for the year ended
December 31, 1997 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Houston, Texas
June 8, 1998
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EXHIBIT 23.3
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
As independent petroleum engineers, Williamson Petroleum
Consultants, Inc. hereby consents to the incorporation by reference in this
registration statement on Form S-8 of our report dated March 4, 1998 and
entitled "Evaluation of Oil and Gas Reserves to the Interests of Tom Brown,
Inc., Effective December 31, 1997, for Disclosure to the Securities and Exchange
Commission, Williamson Project 7.8529" included in the Annual Report on Form
10-K of Tom Brown, Inc. for the year ended December 31, 1997 and to all
references to our firm included in this registration statement on Form S-8 to be
filed with the Securities and Exchange Commission on or about June 10, 1998.
/s/ WILLIAMSON PETROLEUM CONSULTANTS, INC.
Houston, Texas
June 9, 1998
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EXHIBIT 23.4
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
As independent petroleum engineers, we hereby consent to the
incorporation by reference in this registration statement of our report included
in the Annual Report on Form 10-K of Tom Brown, Inc. for the year ended December
31, 1997 and to all references to our firm included in this registration
statement.
/s/ RYDER SCOTT COMPANY PETROLEUM ENGINEERS
June 9, 1998
