As filed with the Securities and Exchange Commission on November 30, 2001
Registration No. 333-
UNITED STATES
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 Identification Number)
Incorporation or Organization)
555 Seventeenth Street, Suite 1850
Denver, Colorado 80202
(Address of principal executive offices) (Zip Code)
Tom Brown, Inc. 401(k) Retirement Plan
(Full title of plan)
James D. Lightner
President
555 Seventeenth Street, Suite 1850
Denver, Colorado
(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 Seventeenth Street, Suite 1850
Denver, Colorado 80202
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF OFFERING AGGREGATE AMOUNT OF
SECURITIES TO AMOUNT TO BE PRICE PER OFFERING REGISTRATION
BE REGISTERED REGISTERED SHARE (1) PRICE(1) FEE
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Common Stock, $.10 par 100,000 shares $23.21 $2,321,000 $555
value(2)
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and (h)(1) on the basis of
the average of the high and low sales prices of the Registrant's Common
Stock on November 27, 2001, as reported on the Nasdaq National Market
System.
(2) In addition, pursuant to Rule 416(c), this registration statement also
covers an indeterminate amount of interests to be offered or sold
pursuant to the Tom Brown, Inc. 401(k) Retirement Plan.
Part II of Form S-8
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Tom Brown, Inc. (the "Company") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 2000,
(2) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2001, June 30, 2001 and September 30, 2001;
(3) All other reports filed by the Company pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 2000;
(4) The Description of Registrant's Securities section (Item 4) from
the Company's Registration Statement on Form 8-B dated July 15, 1987; and
(5) The Description of Registrant's Securities section (Item 1) from
the Company's Registration Statement on Form 8-A dated March 12, 1991, as
amended by Amendment No. 1 to the Form 8-A Registration Statement dated March
16, 2001.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all 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 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Bylaws and Certificate of Incorporation provide that the
Company shall indemnify officers, directors, employees and agents of the Company
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 Company 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.
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Section 145 of the Delaware General Corporation Law, inter alia,
authorizes a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any suit or proceeding (other than an action by
or in the right of the corporation) because such person 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 other enterprise, against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such 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 corporation. Similar indemnity is authorized for such persons against
expenses (including attorneys' fees) actually and reasonably incurred in defense
or settlement of any pending, completed or threatened action or suit by or in
the right of a corporation, if such person acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and provided further that (unless a court of competent jurisdiction
otherwise provides) such person shall not have been adjudged liable to the
corporation. Any such indemnification may be made only as authorized in each
specific case upon a determination by the shareholders or disinterested
directors that indemnification is proper because the indemnitee has met the
applicable standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who 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 any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
5.1 Legal Opinion of Holme Roberts & Owen LLP
23.1 Consent of Arthur Andersen LLP
23.3 Consent of Ryder Scott Company, L.P.
23.4 Consent of Holme Roberts & Owen LLP is included in Exhibit 5.1
24.1 Power of Attorney (included in the signature pages hereof).
The undersigned registrant hereby undertakes to submit the Tom Brown, Inc.
401(k) Retirement Plan and any amendments thereto to the Internal Revenue
Service ("IRS") in a timely manner and will make all changes required by the IRS
in order to qualify the plan's tax exempt status.
ITEM 9 UNDERTAKINGS
(a) Rule 415 Offerings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post- effective amendment to this registration statement:
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(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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(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 (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post effective amendment
by those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for 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.
(3) 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.
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference.
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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
(c) Request for Acceleration of Effective Date or Filing of
Registration Statement on Form S-8.
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 Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than payment by the registrant of expenses
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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 Act 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 Denver, Colorado, on the 30th day of November, 2001.
TOM BROWN, INC.
By: /s/ James D. Lightner
---------------------------------------
Name: James D. Lightner
Title: President and Chief Executive Officer
We, the undersigned officers and directors of Tom Brown, Inc. hereby
severally constitute and appoint Daniel G. Blanchard and Bruce R. DeBoer, and
each of them singly, our true and lawful attorneys, with full power to them and
each of them singly, to sign for us in our names in the capacities indicated
below, all pre-effective and post-effective amendments to this Registration
Statement and any abbreviated Registration Statement in connection with this
Registration Statement; and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission; and to sign all documents in connection with the qualification and
sale of the Common Stock with Blue Sky authorities and with the Nasdaq National
Market System; granting unto said attorneys-in-fact full power and authority to
perform any other act on behalf of the undersigned required to be done in the
premises, hereby ratifying and confirming all that said attorneys-in-fact
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated:
NAME TITLE DATE
---- ----- ----
/s/ James B. Wallace Chairman of the Board November 30, 2001
---------------------------------------- of Directors
James B. Wallace
/s/ James D. Lightner President, Chief Executive Officer November 30, 2001
---------------------------------------- and Director
James D. Lightner (Principal Executive Officer)
/s/ Daniel G. Blanchard Executive Vice President, November 30, 2001
---------------------------------------- Treasurer and Chief Financial Officer -
Daniel G. Blanchard (Principal Financial Officer)
/s/ Richard L. Satre Controller November 30, 2001
---------------------------------------- (Principal Accounting Officer)
Richard L. Satre
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NAME TITLE DATE
---- ----- ----
/s/ Thomas C. Brown Director November 30, 2001
----------------------------------------
Thomas C. Brown
/s/ Kenneth B. Butler Director November 30, 2001
----------------------------------------
Kenneth B. Butler
/s/ David M. Carmichael Director November 30, 2001
----------------------------------------
David M. Carmichael
/s/ Henry Groppe Director November 30, 2001
----------------------------------------
Henry Groppe
/s/ Edward W. LeBaron, Jr. Director November 30, 2001
----------------------------------------
Edward W. LeBaron, Jr.
/s/ Robert H. Whilden, Jr. Director November 30, 2001
----------------------------------------
Robert H. Whilden, Jr.
/s/ Wayne W. Murdy Director November 30, 2001
----------------------------------------
Wayne W. Murdy
Pursuant to the requirements of the Securities Act of 1933, the trustees of the
Tom Brown, Inc. 401(k) Retirement Plan have duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in Denver, Colorado on the 30th day of November, 2001.
TOM BROWN, INC. 401(k) RETIREMENT PLAN
By /s/ Daniel G. Blanchard
------------------------------
Name: Daniel G. Blanchard
Title: Trustee
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EXHIBIT INDEX
Exhibit
Number Description
------- -----------
5.1 Legal Opinion of Holme Roberts & Owen LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Ryder Scott Company, L.P.
23.3 Consent of Holme Roberts & Owen LLP is included in Exhibit 5.1
24.1 Power of Attorney (included in the signature pages hereof).
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