<PAGE> 1
As filed with the Securities and Exchange Commission on December 21, 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 $9.69 $4,845,000.00 $1,347.00
- -------------------------------------------------------------------------------------------------
</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 December 18, 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 , No. 333-42011 and No. 333-56577 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.
-2-
<PAGE> 3
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;
-3-
<PAGE> 4
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.
-4-
<PAGE> 5
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 18th day of
December, 1998.
TOM BROWN, INC.
By: /S/ William R. Granberry
-----------------------------------
William R. Granberry, President
-5-
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William R. Granberry and Damon C. Button 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.
<TABLE>
<CAPTION>
Signature Title Date
------------- --------- --------
<S> <C> <C>
/S/ Donald L. Evans Chairman of the Board of Directors December 18, 1998
- ---------------------------- and Chief Executive Officer
Donald L. Evans (Principal Executive Officer)
/S/ William R. Granberry President, Chief Operating December 18, 1998
- ---------------------------- Officer and Director
William R. Granberry
/S/ Damon C. Button Executive Vice President and December 18, 1998
- ---------------------------- Chief Financial Officer (Principal
Damon C. Button Financial Officer)
/S/ R. Kim Harris Controller December 18, 1998
- ---------------------------- (Principal Accounting Officer)
R. Kim Harris
/S/ Thomas C. Brown Director December 18, 1998
- ----------------------------
Thomas C. Brown
/S/ David M. Carmichael Director December 18, 1998
- ----------------------------
David M. Carmichael
/S/ Henry Groppe Director December 18, 1998
- ----------------------------
Henry Groppe
/S/ Edward W. LeBaron, Jr. Director December 18, 1998
- ----------------------------
Edward W. LeBaron, Jr.
/S/ Clyde E. McKenzie Director December 18, 1998
- ----------------------------
Clyde E. McKenzie
/S/ James B. Wallace Director December 18, 1998
- ----------------------------
James B. Wallace
/S/ Robert H. Whilden, Jr. Director December 18, 1998
- ----------------------------
Robert H. Whilden, Jr.
</TABLE>
-6-
<PAGE> 7
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
- --------------
* Filed herewith.
-7-
<PAGE> 1
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
December 21, 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 issuance
and delivery against payment therefor, be legally issued, fully paid and
nonassessable.
<PAGE> 2
December 21, 1998
Page 2
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
<PAGE> 1
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
December 18, 1998
<PAGE> 1
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 December 21,
1998.
/S/ WILLIAMSON PETROLEUM CONSULTANTS, INC.
Houston, Texas
December 21, 1998
<PAGE> 1
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
December 21, 1998
