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As filed with the Securities and Exchange Commission on March 9, 2000
Registration No. 333 -__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
TMBR/Sharp Drilling, Inc.
(Exact name of registrant as specified in its charter)
Texas 75-1835108
State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4607 West Industrial Boulevard
Midland, Texas 79703
(Address of principal executive offices) (Zip Code)
TMBR/Sharp Drilling, Inc. 1998 Stock Option Plan
(Full title of the plan)
Thomas C. Brown
Chairman of the Board of Directors and Chief Executive Officer
4607 West Industrial Boulevard
Midland, Texas 79703
(Name and address of agent for service)
915-699-5050
(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
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
To Be Registered Registered (1) Per Share (2) Offering Price Fee
________________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock,
$.10 par value 750,000 $9.719 $7,289,250 $1,925
________________________________________________________________________________________________
</TABLE>
(1) Plus such indeterminate number of shares of Common Stock of the
Registrant as may be issued to prevent dilution from stock dividends,
stock splits or similar transactions in accordance with Rule 416
under the Securities Act of 1933, as amended.
(2) 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 March 7, 2000.
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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 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by TMBR/Sharp Drilling, 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 fiscal year ended March 31, 1999;
(2) The Registrant's Quarterly Report on Form 10-Q
for the periods ended June 30, 1999, September
30, 1999 and December 31, 1999;
(3) 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 March 31, 1999; and
(4) The Description of Registrant's Securities
section (Item 11) from the Registrant's
registration of securities on Form 10 filed with
the Commission on August 10, 1984, as
amended by Amendment No. 1 to Form 10 filed
with the Commission on October 19, 1984,
pursuant to Section 12(g) of the Exchange Act.
In addition to the foregoing, 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
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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 stock options granted or to be granted pursuant to the
Registrant's 1998 Stock Option Plan has been passed upon for the
Registrant by Lynch, Chappell & Alsup, a professional corporation,
Midland, Texas. James M. Alsup, a shareholder of Lynch, Chappell &
Alsup, is the Secretary of the Registrant.
Item 6. Indemnification of Directors and Officers
Article VIII of the Registrant's Articles of Incorporation and
Article Nine of the Registrant's Bylaws provide that the Registrant
shall 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,
by reason of the fact that he is or was a director, officer or employee
of the Registrant, or is or was serving at the request of the Registrant
as a director, officer or employee of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Registrant, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful; except
that, as to any threatened, pending or completed action or suit by or
in the right of the Registrant, such indemnification is limited to
expenses (including attorneys' fees) actually and reasonably incurred
in connection with the defense or settlement of the case and, in
respect of any claim, issue or matter as to which such person has
been found to be liable for negligence or misconduct in the
performance of his duty to the Registrant, shall not be made without
court approval. In addition, the Registrant shall pay expenses
incurred by a director, officer or employee in defending any proceeding
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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.
The Registrant's Articles of Incorporation and Bylaws further
provide that officers, directors or employees are entitled to be
indemnified only if such person has met the applicable standard of
conduct as determined (1) by the Board of Directors by a majority vote
of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such quorum is not obtainable, or,
even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the
shareholders if such determination shall not have been made by the
Board of Directors or by such legal counsel.
Section B and Section E of Article 2.02-1 of the Texas Business
Corporation Act ("TBCA") of the State of Texas provide that a Texas
corporation may indemnify a person against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by such
person who was, is, or is threatened to be made a named defendant or
respondent in a proceeding because he or she is or was a director, if it
is determined that he or she (a) acted in good faith, (b) reasonably
believed (i) in the case of conduct in his or her official capacity as a
director, that his or her conduct was in the best interests of the
corporation, and (ii) in all other cases, that his or her conduct was at
least not opposed to the corporation's best interests, and (c) with
respect to any criminal proceeding, had no reasonable cause to believe
his or her conduct was unlawful; provided, however, if the person is
found liable to the corporation or is found liable on the basis that
personal benefit was improperly received, the indemnification (a) is
limited to reasonable expenses actually incurred by such person in
connection with the proceeding and (b) shall not be made in respect of
any proceeding in which such person shall have been found liable for
willful or intentional misconduct in the performance of his or her duty
to the corporation.
Article 2.02-1.H. of the TBCA provides that a corporation shall
indemnify a director against reasonable expenses incurred by him in
connection with a proceeding in which he or she is a named defendant
or respondent because he or she is or was a director if he or she has
been wholly successful, on the merits or otherwise, in the defense of
the proceeding.
Article 2.02-1.I. of the TBCA provides that if, in a suit for the
indemnification required by Section H of Article 2.02-1, a court of
competent jurisdiction determines that the director is entitled to
indemnification under such section, the court shall order
indemnification and shall award to the director the expenses incurred
in securing the indemnification.
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Article 2.02-1.J. of the TBCA provides that if, upon application
of a director, a court of competent jurisdiction determines that the
director is fairly and reasonably entitled to indemnification in view of
all the relevant circumstances, whether or not he or she has met the
requirements set forth in Section B of Article 2.02-1 described above
or has been found liable to the corporation or has improperly received
personal benefits, the court may order the indemnification that the
court determines is proper and equitable; but if the person is found
liable to the corporation or is found liable on the basis that personal
benefit was improperly received by the person, the indemnification
shall be limited to reasonable expenses actually incurred by the
person in connection with the proceeding.
Article 2.02-1.O. of the TBCA provides that an officer of the
corporation shall be indemnified to the same extent provided by
Sections H, I and J of Article 2.02-1 for a director and is entitled to
seek indemnification under those sections to the same extent as a
director. A corporation may indemnify and advance expenses to an
officer, employee, or agent of the corporation to the same extent that
it may indemnify and advance expenses to directors under Article
2.02-1.
Article 2.02-1.R. further provides that the corporation may
purchase and maintain insurance or other arrangements on behalf of
a director, officer, employee or agent of the corporation against any
liability asserted against such person and 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 Article 2.02-1.
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Item 8. Exhibits
Exhibit No. Description
----------- -----------
* 5 Opinion of Lynch, Chappell & Alsup
*23.1 Consent of Arthur Andersen LLP
*23.2 Consent of Joe C. Neal and Associates
*23.3 Consent of Lynch, Chappell & Alsup (contained
in opinion filed as Exhibit 5)
*24 Power of Attorney contained on Page 9 hereof
-----------------
* Filed herewith.
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;
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(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.
(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 Midland, State
of Texas, on the 7th day of March, 2000.
TMBR/SHARP DRILLING, INC.
By: /s/ Thomas C. Brown
-------------------------------
Thomas C. Brown,
Chairman of the Board of Directors
and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Thomas C. Brown
and Joe G. Roper 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 dates indicated.
Signature Title Date
- ---------------- -------------------------- ---------------
/s/Thomas C. Brown Chairman of the Board of March 7, 2000
--------------- Directors and Chief
Thomas C. Brown Executive Officer
(Principal Executive
Officer)
/s/Joe G. Roper President and Director March 7, 2000
------------
Joe G. Roper
/s/Donald L. Evans Director March 7, 2000
---------------
Donald L. Evans
/s/David N. Fitzgerald Director March 7, 2000
-------------------
David N. Fitzgerald
/s/Patricia R. Elledge Controller/Treasurer and March 7, 2000
------------------- Assistant Secretary
Patricia R. Elledge (Principal Financial
Officer)
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EXHIBIT INDEX
Exhibit No. Description
----------- -----------
* 5 Opinion of Lynch, Chappell & Alsup
*23.1 Consent of Arthur Andersen LLP
*23.2 Consent of Joe C. Neal and Associates
*23.3 Consent of Lynch, Chappell & Alsup (contained in
opinion filed as Exhibit 5)
*24 Power of Attorney contained on Page 9 hereof
* 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
March 7, 2000
TMBR/Sharp Drilling, Inc.
4607 West Industrial Boulevard
Midland, Texas 79703
Re: Sale of up to 750,000 shares of Common Stock
Gentlemen:
We have acted as counsel to TMBR/Sharp Drilling, Inc., a Texas
corporation (the "Company"), in connection with the proposed
issuance and sale by the Company of up to 750,000 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 1998 Stock Option Plan (the
"Plan"), as further described in a Registration Statement on Form S-8
to be filed by the Company with the Securities and Exchange
Commission (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, delivery 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:
<PAGE> 13
March 7, 2000
Page 2
(i) the Company is a corporation duly organized,
validly existing and in good standing under the
laws of the State of Texas; and
(ii) the Plan has been duly and validly authorized
and adopted, and the issuance and sale of the
750,000 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 Plan has
been duly authorized, and such shares will,
upon issuance and delivery against payment of
not less than the par value of the Common
Stock, be legally issued, fully paid and
nonassessable shares of Common Stock.
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. This consent is
not to be construed as an admission that we are a person whose
consent is required to be filed with the Registration Statement under
Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
LYNCH, CHAPPELL & ALSUP,
a professional corporation
By /s/ Thomas W. Ortloff
---------------------
Thomas W. Ortloff
<PAGE> 14
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 May 21, 1999 included in the Annual Report on Form 10-K of
TMBR/Sharp Drilling, Inc. for the year ended March 31, 1999, and to
all references to our firm included in this registration statement.
/S/ ARTHUR ANDERSEN LLP
Dallas, Texas
February 29, 2000
<PAGE> 15
Exhibit 23.2
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 TMBR/Sharp Drilling,
Inc. for the year ended March 31, 1999 and to all references to our
firm included in this registration statement.
/S/ JOE C. NEAL AND ASSOCIATES
March 7, 2000
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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
March 9, 2000
Securities and Exchange Commission
Judiciary Plaza Office Building
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: TMBR/Sharp Drilling, Inc., Commission File No. 0-12757
Gentlemen:
In connection with the proposed offering and sale of up to 750,000 shares of
Common Stock, $.10 par value, of TMBR/Sharp Drilling, Inc., a Texas
corporation (the "Company"), pursuant to the Company's 1998 Stock Option
Plan, the Company's Registration Statement on Form S-8, including exhibits
(the "Registration Statement"), is submitted herewith by direct transmission
for filing under the Securities Act of 1933, as amended.
The filing fee has been remitted by wire transfer in accordance with
Item 13(c) of Regulation S-T.
The Registration Statement filed herewith is believed to be complete and in
compliance with the applicable form, instructions and rules pertaining thereto.
All reports required to be filed by the Company pursuant to the Securities
Exchange Act of 1934 have been filed and are believed to be complete.
If any member of the Commission's Staff has any questions concerning the
Registration Statement or desires further information or clarification in
connection therewith, they should feel free to contact the undersigned at
(915) 683-3351.
Very truly yours,
LYNCH, CHAPPELL & ALSUP
By: /S/ Thomas W. Ortloff
---------------------
Thomas W. Ortloff
TWO/ds
Enclosures
cc: Patricia R. Elledge
