AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 27, 2003
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 (I.R.S. Employer
of incorporation or organization) Identification Number)
555 SEVENTEENTH STREET, SUITE 1850
DENVER, COLORADO 80202
(Address of principal executive offices, including zip code)
----------
TOM BROWN, INC. 2003 STOCK OPTION PLAN
(Full title of the plans)
DANIEL G. BLANCHARD
EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND TREASURER
TOM BROWN, INC.
555 SEVENTEENTH 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
TOM BROWN, INC.
555 SEVENTEENTH STREET, SUITE 1850
DENVER, COLORADO 80202
CALCULATION OF REGISTRATION FEE
======================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE FEE
---------------------------------- ---------------- ---------------- ------------------- -------------
Common Stock, $0.10 par value .... 1,800,000 shares $ 27.61 $ 49,698,000 $ 4,021
======================================================================================================================
(1) This registration statement shall also cover any additional shares of
Common Stock which become issuable under the Tom Brown, Inc. 2003 Stock
Option Plan being registered pursuant to this registration statement by
reason of any stock dividend, stock split, recapitalization or any other
similar transaction effected without the receipt of consideration which
results in an increase in the number of the registrant's outstanding shares
of Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, based on the
average of the high and low prices reported on the New York Stock Exchange
on June 23, 2003.
================================================================================
PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents that we filed with the Securities and Exchange
Commission (the "Commission") pursuant to Section 12, 13(a), or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") are
incorporated by reference and made a part of this registration statement:
o our Annual Report on Form 10-K for the fiscal year ended December 31,
2002;
o our Quarterly Report on Form 10-Q for the quarterly period ended March
31, 2003;
o our Current Reports on Form 8-K (other than information furnished
pursuant to Item 9 thereof) filed with the Commission on February 25,
2003, May 8, 2003, May 9, 2003 and May 16, 2003;
o the description of our common stock contained in Item 1 of our
registration statement on Form 8-A filed on April 29, 2002.
All documents we file pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act subsequent to the effective date of this registration
statement, and prior to the filing of a post-effective amendment to this
registration statement indicating that all securities offered hereby have been
sold or deregistering all securities then remaining unsold, will be deemed to be
incorporated by reference herein and to be a part of this registration statement
from the date of filing of those documents. Any statement contained in this
registration statement or in any document incorporated or deemed to be
incorporated by reference in this registration statement shall be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained in any other subsequently filed document that also is
or is deemed to be incorporated by reference in this registration statement
modifies or supersedes that statement. Any statement so modified or superseded
shall not be deemed to constitute a part of this registration statement, except
as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Bylaws and Certificate of Incorporation provide that we will indemnify
our officers, directors, employees and agents to the fullest extent permitted by
the Delaware General Corporation Law (the "DGCL") only if such indemnification
with respect to any particular proceeding is authorized by our Board of
Directors. In addition, we 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 of the DGCL authorizes a corporation to 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 the person is or was an officer or
director of such corporation, or is or was serving at the request of that
corporation as a director, officer, employee or agent 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 such person 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 corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
2
A Delaware corporation may indemnify past or present officers and directors of
that corporation or of another corporation or other enterprise at the former
corporation's request, in an action by or in the right of the corporation to
procure a judgment in its favor under the same conditions, except that no
indemnification is permitted without judicial approval if that person is
adjudged to be liable to the corporation. Where an officer or director is
successful on the merits or otherwise in defense of any action referred to
above, or in defense of any claim, issue or matter therein, the corporation must
indemnify him against the expenses (including attorneys' fees) which he actually
and reasonably incurred in connection therewith. Section 145 further provides
that any indemnification shall be made by the corporation only as authorized in
each specific case upon a determination by the (i) stockholders, (ii) Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding or (iii) independent counsel if a
quorum of disinterested directors so directs. Section 145 provides that
indemnification pursuant to its provision is not exclusive of other rights of
indemnification to which a person may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise.
Section 145 of the DGCL also empowers us to purchase and maintain insurance
on behalf of any person who is or was an officer or director of us against
liability asserted against or incurred by him in any such capacity, whether or
not we would have the power to indemnify such officer or director against such
liability under the provisions of Section 145.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of ours with the Commission, each of the following exhibits is
filed herewith:
4.1 Certificate of Incorporation of Tom Brown, Inc., as amended
(incorporated by reference to Exhibit 3.1 to our registration
statement filed on Form S-8 filed December 6, 2000 (Commission
File No. 333-51320))
4.2 Amended and Restated Bylaws of Tom Brown, Inc., dated May 10,
2001 (incorporated by reference to Exhibit 3.2 to our
Quarterly Report on Form 10-Q for the period ended March 31,
2001 (Commission File No. 00-03880))
4.3 Specimen certificate for shares of common stock, par value
$0.10 per share (incorporated by reference to Exhibit 4.1 to
our registration statement on Form 8-A (Commission File No.
01-31308)).
4.4 First Amended and Restated Rights Agreement dated March 1,
2001 between Tom Brown, Inc. and EquiServe Trust Company, N.A.
(incorporated by reference to Exhibit 4.2 to our Annual Report
on Form 10-K for the fiscal year ended December 31, 2000
(Commission File No. 00-03880)).
5.1* Opinion of Vinson & Elkins L.L.P.
10.1* Tom Brown, Inc. 2003 Stock Option Plan.
23.1*++ Consent of KPMG LLP
23.2 Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1)
23.3* Consent of Ryder Scott Company
24.1 Powers of Attorney (included on the signature page to this
registration statement)
3
----------
* Filed herewith
++ Only the consolidated financial statements of Tom Brown as of December
31, 2002, and for the year ended December 31, 2002, have been
incorporated by reference in the registration statement in reliance
upon the report of KPMG LLP, independent accountants, incorporated by
reference herein, and upon the authority of said firm as experts in
accounting and auditing. The consent of Arthur Andersen LLP to the
inclusion of its report regarding the consolidated financial statements
of Tom Brown with respect to periods prior to 2002, incorporated in
this registration statement by reference, is omitted pursuant to the
Securities Act Rule 437a.
ITEM 9. UNDERTAKINGS
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:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Securities Act");
(b) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this 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 a 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
(c) To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement;
provided, however, that paragraphs (1)(a) and (1)(b) 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
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(4) That, for the purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
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
(5) Insofar as indemnification for liabilities arising under the
Securities Act 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
Commission such indemnification is against public policy as expressed in
the Securities Act 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 and will be governed by
the final adjudication of such issue.
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 Denver, State of Colorado, on the 26 day of June,
2003.
By: /s/ James D. Lightner
-----------------------------------------
James D. Lightner
Chairman, Chief Executive Officer and
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Daniel G. Blanchard and Bruce R. DeBoer,
or any of them, his true and lawful attorney-in-fact and agent, with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement on Form S-8, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and ratifying and confirming all that said attorney-in-fact and agent
or his 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 by the following persons in the
capacities and on the 26 day of June, 2003.
SIGNATURE TITLE
--------- -----
/s/ James D. Lightner Chairman, Chief Executive Officer and President
----------------------------------- (Principal Executive Officer)
James D. Lightner
/s/ Daniel G. Blanchard Executive Vice President, Chief Financial Officer and
----------------------------------- Treasurer (Principal Financial Officer)
Daniel G. Blanchard
/s/ Richard L. Satre Controller (Principal Accounting Officer)
-----------------------------------
Richard L. Satre
/s/ Edward W. LeBaron, Jr. Director
-----------------------------------
Edward W. LeBaron, Jr.
/s/ David M. Carmichael Director
-----------------------------------
David M. Carmichael
/s/ Henry Groppe Director
-----------------------------------
Henry Groppe
/s/ Robert H. Whilden, Jr. Director
-----------------------------------
Robert H. Whilden, Jr.
/s/ Wayne W. Murdy Director
-----------------------------------
Wayne W. Murdy
/s/ James B. Wallace Director
-----------------------------------
James B. Wallace
/s/ John C. Linehan Director
-----------------------------------
John C. Linehan
6
/s/ Kenneth B. Butler Director
-----------------------------------
Kenneth B. Butler
7
INDEX TO EXHIBITS
4.1 Certificate of Incorporation of Tom Brown, Inc., as amended
(incorporated by reference to Exhibit 3.1 to our registration statement
filed on Form S-8 filed December 6, 2000 (Commission File No.
333-51320))
4.2 Amended and Restated Bylaws of Tom Brown, Inc., dated May 10, 2001
(incorporated by reference to Exhibit 3.2 to our Quarterly Report on
Form 10-Q for the period ended March 31, 2001 (Commission File No.
00-03880))
4.3 Specimen certificate for shares of common stock, par value $0.10 per
share (incorporated by reference to Exhibit 4.1 to our registration
statement on Form 8-A (Commission File No. 01-31308)).
4.4 First Amended and Restated Rights Agreement dated March 1, 2001 between
Tom Brown, Inc. and EquiServe Trust Company, N.A. (incorporated by
reference to Exhibit 4.2 to our Annual Report on Form 10-K for the
fiscal year ended December 31, 2000 (Commission File No. 00-03880)).
5.1* Opinion of Vinson & Elkins L.L.P.
10.1* Tom Brown, Inc. 2003 Stock Option Plan.
23.1*++ Consent of KPMG LLP
23.2 Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1)
23.3* Consent of Ryder Scott Company
24.1 Powers of Attorney (included on the signature page to this registration
statement)
----------
* Filed herewith
++ Only the consolidated financial statements of Tom Brown as of December
31, 2002, and for the year ended December 31, 2002, have been
incorporated by reference in the registration statement in reliance upon
the report of KPMG LLP, independent accountants, incorporated by
reference herein, and upon the authority of said firm as experts in
accounting and auditing. The consent of Arthur Andersen LLP to the
inclusion of its report regarding the consolidated financial statements
of Tom Brown with respect to periods prior to 2002, incorporated in this
registration statement by reference, is omitted pursuant to the
Securities Act Rule 437a.
8