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As filed with the Securities and Exchange Commission on October 14, 1999
Registration No. 333 -
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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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.)
555 17th Street, Suite 1850
Denver, Colorado 80202
(Address of principal executive offices) (Zip Code)
Tom Brown, Inc. 1999 Long Term Incentive Plan
(Full title of the plan)
James D. Lightner
President
555 17th Street, Suite 1850
Denver, Colorado 80202
(Name and address of agent for service)
303-260-5000
(Telephone number, including area code, of agent for service)
Copy to:
Bruce R. DeBoer, Esq.
Tom Brown, Inc.
555 17th Street, Suite 1850
Denver, Colorado 80202
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
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<S> <C> <C> <C> <C>
Common Stock,
$.10 par value 2,000,000 $16.32 $32,640,000 $9,074
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</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 October 13, 1999.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified by Item 1 and Item 2 of Part I of Form S-8 is
omitted from this filing in accordance with the provisions of the introductory
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Tom Brown, Inc. (the "Registrant")
with the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998.
(2) The Registrant's Quarterly Report on Form 10-Q for the periods
ended March 31, 1999 and June 30, 1999.
(3) The Registrant's Current Report on Form 8-K dated July 19,
1999, as amended by Form 8-K/A dated September 15, 1999.
(4) All reports filed by the Registrant pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), since December 31, 1998.
(5) The Description of Registrant's Securities section (Item 4)
from the Registrant's registration of securities on Form 8-B
dated July 15, 1987, pursuant to Section 12(g) of the Exchange
Act.
(6) The Description of Registrant's Securities section (Item 1)
from the Registrant's registration of securities on Form 8-A
dated March 12, 1991, pursuant to Section 12(g) of the
Exchange Act.
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All documents filed by the Registrant subsequent to the date of this
Registration Statement pursuant to Sections 13(a) and (c), 14 and 15(d) of the
Exchange Act and prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Item 5. Interests of Named Experts and Counsel
The validity of the issuance of the Common Stock issuable upon exercise
of the options granted, or shares of Common Stock otherwise issued, under the
Registrant's Long Term Incentive Plan 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 6. Indemnification of Directors and Officers
The Registrant's Bylaws and Certificate of Incorporation provide that
the Registrant shall indemnify officers, directors, employees and agents of the
Registrant to the full extent permitted by law only if such indemnification with
respect to any particular proceeding is authorized by the Board of Directors. In
addition, the Registrant may pay expenses incurred in defending any proceeding
in advance of its final disposition if the indemnified person undertakes to
repay all amounts advanced if it should ultimately be determined that such
person was not entitled to indemnification.
Section 145(a) of the General Corporation Law of the State of Delaware
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no cause to believe his
or conduct was unlawful.
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Section 145(b) provides that a Delaware corporation may indemnify any
person who was or is a party, or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect to any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine that despite the adjudication of liability,
such person is fairly and reasonably entitled to be indemnified for such
expenses that the court shall deem proper.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter herein, he or she shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director,
officer, employee or agent of the corporation against any liability asserted
against such person or incurred by such person in any such capacity or arising
out of such person's status as such whether or not the corporation would have
the power to indemnify such person against such liabilities under such Section
145.
Item 8. Exhibits
<TABLE>
<CAPTION>
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)
</TABLE>
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<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
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 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
*24.1 Power of Attorney contained on Page 9 hereof
</TABLE>
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* Filed herewith
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Item 9. Undertakings
(1) 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.
(2) 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;
provided, however, that paragraphs (2)(a)(i) and (2)(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.
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(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.
(3) 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 Denver, State of Colorado, on the 13th day of
October, 1999.
TOM BROWN, INC.
By: /s/ James D. Lightner
-----------------------------------
James D. Lightner, President
-8-
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints James D. Lightner 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Donald L. Evans Chairman of the Board of October 13, 1999
- ---------------------------------- Directors and Chief Executive
Donald L. Evans Officer (Principal Executive Officer)
/s/ James D. Lightner President October 13, 1999
- -----------------------------------
James D. Lightner
/s/ Daniel G. Blanchard Vice President and Chief October 13, 1999
- ----------------------------------- Financial Officer (Principal
Daniel G. Blanchard Financial Officer)
/s/ R. Kim Harris Vice President - Finance and October 13, 1999
- ----------------------------------- Controller (Principal
R. Kim Harris Accounting Officer)
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas C. Brown Director October 13, 1999
- ----------------------------------
Thomas C. Brown
/s/ David M. Carmichael Director October 13, 1999
- ----------------------------------
David M. Carmichael
/s/ Henry Groppe Director October 13, 1999
- ----------------------------------
Henry Groppe
/s/ David A. Johnson Director October 13, 1999
- ----------------------------------
David A. Johnson
/s/ Edward W. LeBaron, Jr. Director October 13, 1999
- ----------------------------------
Edward W. LeBaron, Jr.
/s/ James B. Wallace Director October 13, 1999
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James B. Wallace
/s/ Robert H. Whilden, Jr. Director October 13, 1999
- ----------------------------------
Robert H. Whilden, Jr.
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
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 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
*24.1 Power of Attorney contained on Page 9 hereof
</TABLE>
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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
October 14, 1999
Tom Brown, Inc.
508 W. Wall, Suite 500
Midland, Texas 79701
Re: Tom Brown, Inc. Long Term Incentive Plan; Sale of up to 2,000,000
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 2,000,000 shares of Common Stock, $.10 par value ("Common Stock"), of the
Company pursuant to the exercise of stock options or stock awards granted or to
be granted by the Company under the Company's Long Term Incentive 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 2,000,000 shares of Common Stock that
may be issued and sold by the Company pursuant to Awards (within the meaning of
the Plan) granted or to be granted in accordance with the Company's Plan will,
upon issuance and delivery against payment therefor, be legally issued, fully
paid and nonassessable.
<PAGE> 2
October 14, 1999
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, 1999
included in the Annual Report on Form 10-K of Tom Brown, Inc. for the year ended
December 31, 1998 and our report dated August 26, 1999 included in the Current
Report on Form 8-K/A of Tom Brown, Inc. dated September 15, 1999 and to all
references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Houston, Texas
October 13, 1999
<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 reports entitled "Evaluation of Oil
and Gas Reserves to the Interests of Tom Brown, Inc., Effective December 31,
1996, for Disclosure to the Securities and Exchange Commission, Williamson
Project 6-8431" dated February 28, 1997 and "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" dated
March 4, 1998 included in the Annual Report on Form 10-K of Tom Brown, Inc. for
the year ended December 31, 1998 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.
/s/ WILLIAMSON PETROLEUM CONSULTANTS, INC.
Houston, Texas
October 14, 1999
<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, 1998 and to all references to our firm included in this registration
statement.
/s/ Ryder Scott Company, L.P.
October 13, 1999
