As filed with the Securities and Exchange Commission on May 1, 2003
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
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
(State or Other Jurisdiction of Incorporation or Organization)
95-1949781
(IRS Employer Identification Number)
555 SEVENTEENTH STREET
SUITE 1850
DENVER, COLORADO 80202
(303) 260-5000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
DANIEL G. BLANCHARD
EXECUTIVE VICE PRESIDENT,
CHIEF FINANCIAL OFFICER AND TREASURER
555 SEVENTEENTH STREET
SUITE 1850
DENVER, COLORADO 80202
(303) 260-5000
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
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Copy to:
JEFFERY B. FLOYD
VINSON & ELKINS L.L.P.
2300 FIRST CITY TOWER
1001 FANNIN
HOUSTON, TEXAS 77002
(713) 758-2222
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement, as determined
by market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AGGREGATE REGISTRATION FEE
SECURITIES TO BE REGISTERED (1)(2) OFFERING PRICE (3)(4) (5)
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Debt Securities (6).............................
Common Stock (including attached preferred
share purchase rights)(7).......................
Preferred Stock.................................
Depositary Shares (8)...........................
Securities Warrants.............................
Stock Purchase Contracts (9)....................
Stock Purchase Units (10).......................
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Total............................................... $500,000,000 $40,450
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(1) Certain information as to each class of securities to be registered
is not specified pursuant to General Instruction II(D) to Form S-3 under
the Securities Act of 1933.
(2) This registration statement also covers such indeterminate amount of
securities as may be issued in exchange for, or upon conversion or exercise
of, as the case may be, securities registered hereunder that provide for
conversion, exercise or exchange. Any securities registered hereunder may
be sold separately or as units with other securities registered hereunder.
No separate consideration will be received for any securities registered
hereunder that are issued in exchange for, or upon conversion of, as the
case may be, securities registered hereunder.
(3) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act. The proposed maximum offering price per unit will
be determined from time to time in connection with, and at the time of, the
issuance of the securities.
(4) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this registration statement exceed
$500,000,000, or the equivalent thereof in foreign or composite currencies.
(5) Calculated pursuant to Rule 457(o) at the statutory rate of $80.90 per
$1,000,000 of securities registered.
(6) Subject to Note (4) above, there is being registered hereunder an
indeterminate amount of debt securities. If any debt securities are issued
at an original issue discount, then the offering price may be increased by
an amount such that the gross proceeds to be received by the registrant
shall be equal to the above amount to be registered. Any offering of debt
securities denominated other than in U.S. dollars will be treated as the
equivalent of U.S. dollars based on the exchange rate applicable to the
purchase of such debt securities at the time of initial offering.
(7) Subject to Note (4) above, there is being registered hereunder an
indeterminate number of shares of common stock. Each share of common stock
includes an associated preferred share purchase right. Until the occurrence
of certain prescribed events, none of which has occurred, the preferred
share purchase rights are not exercisable, are evidenced by the
certificates representing the common stock, and will be transferred with
the common stock.
(8) Subject to Note (4) above, there is being registered hereunder an
indeterminate number of depositary shares to be evidenced by depositary
receipts issued pursuant to a deposit agreement. If the registrant elects
to offer to the public fractional interests in shares of preferred stock
registered hereunder, depositary receipts will be distributed to those
persons purchasing such fractional interests and such shares will be issued
to the depositary under the deposit agreement.
(9) Subject to Note (4) above, there is being registered hereunder an
indeterminate amount and number of stock purchase contracts, representing
obligations to purchase preferred stock, depositary shares, common stock or
other securities.
(10) Subject to Note (4) above, there is being registered hereunder an
indeterminate amount and number of stock purchase units, consisting of
stock purchase contracts together with debt securities, preferred stock,
warrants or debt obligations of third parties securing the holders'
obligations to purchase the securities under the stock purchase contracts.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 1, 2003
PROSPECTUS
TOM BROWN, INC.
$500,000,000
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
SECURITIES WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
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Tom Brown, Inc. may offer and sell the securities listed above from time to
time in one or more classes or series and in amounts, at prices and on terms
that we will determine at the time of the offering. The aggregate initial public
offering price of all securities we offer under this prospectus will not exceed
$500,000,000.
This prospectus provides you with a general description of the securities
that may be offered. Each time securities are sold, we will provide one or more
supplements to this prospectus that contain more specific information about the
offering and the terms of the securities being offered. The supplements may also
add, update or change information contained in this prospectus. This prospectus
may not be used to offer or sell securities without a prospectus supplement
describing the method and terms of the offering.
You should carefully read this prospectus and any accompanying prospectus
supplement before you invest in any of our securities.
Our common stock is listed on the New York Stock Exchange under the symbol
"TBI."
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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THIS PROSPECTUS IS DATED _______________, 2003
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS.............................................................................................3
WHERE YOU CAN FIND MORE INFORMATION...............................................................................3
FORWARD-LOOKING STATEMENTS........................................................................................4
ABOUT OUR COMPANY.................................................................................................6
USE OF PROCEEDS...................................................................................................6
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS...................6
DESCRIPTION OF DEBT SECURITIES....................................................................................7
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK..................................................................17
DESCRIPTION OF DEPOSITARY SHARES.................................................................................21
DESCRIPTION OF SECURITIES WARRANTS...............................................................................23
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS.................................................24
PLAN OF DISTRIBUTION.............................................................................................25
LEGAL MATTERS....................................................................................................27
EXPERTS..........................................................................................................27
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You should rely only on the information contained or incorporated by
reference in this prospectus and any prospectus supplement. We have not
authorized any dealer, salesman or other person to provide you with additional
or different information. This prospectus and any prospectus supplement are not
an offer to sell or the solicitation of an offer to buy any securities other
than the securities to which they relate and are not an offer to sell or the
solicitation of an offer to buy securities in any jurisdiction to any person to
whom it is unlawful to make an offer or solicitation in that jurisdiction. You
should not assume that the information in this prospectus or any prospectus
supplement or in any document incorporated by reference in this prospectus or
any prospectus supplement is accurate as of any date other than the date of the
document containing the information.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, which we refer to as the "SEC," using a
"shelf" registration process. Under this shelf registration process, we may,
over time, offer and sell any combination of the securities described in this
prospectus in one or more offerings up to a total dollar amount of $500,000,000.
This prospectus provides you with a general description of the securities we may
offer. Each time we offer securities, we will provide one or more prospectus
supplements that will contain specific information about the terms of that
offering. A prospectus supplement may also add, update or change information
contained in this prospectus. Any statement that we make in this prospectus will
be modified or superseded by any inconsistent statement made by us in a
prospectus supplement. You should read both this prospectus and any prospectus
supplement together with the additional information described under the heading
"Where You Can Find More Information."
Unless the context requires otherwise or unless otherwise noted, all
references in this prospectus or any prospectus supplement to "Tom Brown," "we,"
"us" or "our" are to Tom Brown, Inc. and its subsidiaries.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus does not contain all of the information included in the
registration statement and all of the exhibits and schedules thereto. For
further information about Tom Brown, you should refer to the registration
statement. Summaries of agreements or other documents in this prospectus are not
necessarily complete. Please refer to the exhibits to the registration statement
for complete copies of such documents.
We file annual, quarterly and current reports, proxy statements and other
information with the SEC (File No. 1-31308). Our SEC filings are available to
the public over the Internet at the SEC's web site at http://www.sec.gov. You
may also read and copy at prescribed rates any document we file at the SEC's
public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may
obtain information on the operation of the SEC's public reference room by
calling the SEC at 1-800-SEC-0330.
Our common stock is listed on the New York Stock Exchange under the
symbol "TBI." Our reports, proxy statements and other information may be read
and copied at the NYSE at 20 Broad Street, 7th Floor, New York, New York 10005.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to other documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and all documents we subsequently file
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934 until all of the securities described in this prospectus are sold:
o our annual report on Form 10-K/A for the year ended December 31, 2002,
filed with the SEC on March 25, 2003;
o our current reports on Forms 8-K, filed with the SEC on February 25,
2003; and
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o the description of our common stock and attached preferred share
purchase rights contained in our Form 8-A registration statement filed
with the SEC on April 29, 2002.
You may request a copy of these filings (other than an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that filing),
at no cost, by writing us at the following address or calling us at the
following number:
Tom Brown, Inc.
Attention: Corporate Secretary
555 Seventeenth Street
Suite 1850
Denver, Colorado
(303) 260-5000
FORWARD-LOOKING STATEMENTS
Certain matters discussed in this prospectus and the documents we
incorporate by reference herein may include "forward-looking statements" within
the meaning of Section 27A of the Securities Act and Section 21E of the
Securities Exchange Act. These forward-looking statements can generally
be identified as such because the context of the statement will include words
such as we "believe," "anticipate," "expect," "estimate," or words of similar
import. Similarly, statements that describe our future plans, objectives or
goals or future revenues or other financial metrics are also forward-looking
statements. Such forward-looking statements are subject to certain risks and
uncertainties that could cause our actual results to differ materially from
those anticipated as of the date of this prospectus or the documents we
incorporate by reference herein, as applicable. These risks and uncertainties
include:
o the risks associated with exploration and development of oil and gas
properties;
o our ability to find, acquire, market, develop and produce new
properties;
o natural gas and oil price volatility;
o uncertainties in the estimation of proved reserves and in the
projection of future rates of production and timing of development
expenditures;
o operating hazards attendant to the natural gas and oil business;
o downhole drilling and completion risks that are generally not
recoverable from third parties or insurance;
o lease and rig availability;
o complex geology;
o potential mechanical failure or under-performance of significant wells;
o climatic conditions;
o availability and cost of material and equipment;
o delays in anticipated start-up dates;
o actions or inactions of third party operators of our properties;
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o our ability to find and retain skilled personnel;
o availability of capital;
o the strength and financial resources of our competitors;
o legislative and regulatory developments;
o inflation rates;
o financial market conditions;
o future business decisions;
o environmental risks; and
o general economic, competitive and political conditions.
Other factors besides those described in this prospectus or the documents
we incorporate by reference herein could also affect our actual results. You
should not unduly rely on these forward-looking statements, which speak only as
of the date such statements are made. Except as otherwise required by law, we
undertake no obligation to publicly revise any forward-looking statement to
reflect circumstances or events after the date such statements are made or to
reflect the occurrence of unanticipated events. You should, however, review the
factors and risks we describe in the reports we file from time to time with the
SEC.
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ABOUT OUR COMPANY
Tom Brown is engaged primarily in the exploration for, and the
acquisition, development, production, marketing, and sale of, natural gas,
natural gas liquids and crude oil in North America. Our activities are conducted
principally in the Wind River and Green River Basins of Wyoming, the Piceance
Basin of Colorado, the Paradox Basin of Utah and Colorado, the Val Verde Basin
and Permian Basin of west Texas and southeastern New Mexico, the east Texas
Basin and the western Canadian Sedimentary Basin. We also, to a lesser extent,
conduct exploration and development activities in other areas of the continental
United States and Canada.
Our executive offices are located at 555 Seventeenth Street, Suite
1850, Denver, Colorado 80202, and our telephone number is (303) 260-5000. We
maintain a website on the Internet at http://www.tombrown.com. Unless
specifically incorporated by reference in this prospectus, information that you
may find on our website is not part of this prospectus.
USE OF PROCEEDS
Except as may otherwise be described in a prospectus supplement, the net
proceeds from the sale of the securities offered pursuant to this prospectus and
any prospectus supplement will be used for general corporate purposes. These
purposes may include, but are not limited to:
o reduction or refinancing of debt or other corporate obligations;
o acquisitions;
o capital expenditures; and
o working capital.
Any specific allocation of the net proceeds of an offering of securities to
a specific purpose will be determined at the time of the offering and will be
described in a prospectus supplement.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
Our consolidated ratios of earnings to fixed charges and earnings to fixed
charges and preferred stock dividends for each of the periods indicated are as
follows:
YEAR ENDED DECEMBER 31,
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1998 1999 2000 2001 2002
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(dollars in millions)
Ratio of earnings to fixed charges.......... -- 2.86 17.49 14.42 2.64
Deficiency in the coverage of
fixed charges by earnings before
fixed charges............................. $ 71.4 -- -- -- --
Ratio of earnings to fixed charges and
preferred stock dividends................ -- 1.95 14.39 14.42 2.64
Deficiency in the coverage of
fixed charges and preferred
stock dividends by earnings before
fixed charges............................. $ 74.1 -- -- -- --
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o "Earnings" consist of income (loss) before provision for income taxes
and cumulative effects of changes in accounting principles, plus
fixed charges (excluding capitalized interest).
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o "Fixed charges" consist of interest expense (including amortization of
debt discount or premium), and the estimated interest factor
attributable to rentals.
o In 1998, the coverage deficiency was principally related to a $51.3
million impairment provision recognized on our investment in oil and
gas properties.
As of the date of this prospectus, there are no outstanding shares of
preferred stock.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be either our senior debt securities ("Senior Debt
Securities") or our subordinated debt securities ("Subordinated Debt
Securities"). The Senior Debt Securities and the Subordinated Debt Securities
will be issued under separate Indentures between us and a U.S. banking
institution selected by us, as "Trustee." Senior Debt Securities will be issued
under a "Senior Indenture" and Subordinated Debt Securities will be issued under
a "Subordinated Indenture." Together the Senior Indenture and the Subordinated
Indenture are called "Indentures." The Debt Securities may be issued from time
to time in one or more series.
We have summarized selected provisions of the Indentures below. The summary
is not complete. We have filed the forms of each Indenture with the SEC as an
exhibit to the registration statement of which this prospectus is a part. In the
summary below we have included references to section numbers of the applicable
Indentures so that you can easily locate these provisions. Whenever we refer in
this prospectus or in the prospectus supplement to particular sections or
defined terms of the Indenture, such sections or defined terms are incorporated
by reference herein or therein, as applicable. Capitalized terms used in this
summary have the meanings specified in the Indentures.
GENERAL
The Indentures provide that Debt Securities in separate series may be
issued thereunder from time to time without limitation as to aggregate principal
amount. We may specify a maximum aggregate principal amount for the Debt
Securities of any series. (Section 301) We will determine the terms and
conditions of the Debt Securities, including the maturity, principal and
interest, but those terms must be consistent with the Indenture. The Debt
Securities will be our unsecured obligations.
The Subordinated Debt Securities will be subordinated in right of payment
to the prior payment in full of all of our Senior Debt (as defined) as described
under "-- Subordination of Subordinated Debt Securities" and in the prospectus
supplement applicable to any Subordinated Debt Securities. If the prospectus
supplement so indicates, the Subordinated Debt Securities will be convertible
into our common stock as described in the prospectus supplement.
The applicable prospectus supplement will set forth the price or prices at
which the Debt Securities to be offered will be issued and will describe the
following terms of such Debt Securities:
(1) the title of the Debt Securities;
(2) whether the Debt Securities are Senior Debt Securities or
Subordinated Debt Securities and, if Subordinated Debt
Securities, the related subordination terms;
(3) any limit on the aggregate principal amount of the Debt
Securities;
(4) the dates on which the principal of the Debt Securities will
be payable;
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(5) the interest rate which the Debt Securities will bear and the
interest payment dates for the Debt Securities;
(6) the places where payments on the Debt Securities will be
payable;
(7) any terms upon which the Debt Securities may be redeemed, in
whole or in part, at our option;
(8) any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the Debt Securities;
(9) the portion of the principal amount, if less than all, of the
Debt Securities that will be payable upon declaration of
acceleration of the Maturity of the Debt Securities;
(10) whether the Debt Securities are defeasible;
(11) any addition to or change in the Events of Default;
(12) whether the Debt Securities are convertible into, or
exchangeable for, securities or other property of Tom Brown
and, if so, the terms and conditions upon which conversion
will be effected, including the initial conversion price or
conversion rate and any adjustments thereto, the conversion
period and other conversion provisions;
(13) any addition to or change in the covenants in the Indenture
applicable to any of the Debt Securities; and
(14) any other terms of the Debt Securities not inconsistent with
the provisions of the Indenture. (Section 301)
Debt Securities may be sold at a substantial discount below their principal
amount. Special United States federal income tax considerations applicable to
Debt Securities sold at an original issue discount may be described in the
applicable prospectus supplement. In addition, special United States federal
income tax or other considerations applicable to any Debt Securities that are
denominated in a currency or currency unit other than United States dollars may
be described in the applicable prospectus supplement.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The indebtedness evidenced by the Subordinated Debt Securities will, to the
extent set forth in the Subordinated Indenture with respect to each series of
Subordinated Debt Securities, be subordinate in right of payment to the prior
payment in full of all of our Senior Debt, including the Senior Debt Securities,
and it may also be senior in right of payment to all of our Subordinated Debt.
The prospectus supplement relating to any Subordinated Debt Securities will
summarize the subordination provisions of the Subordinated Indenture applicable
to that series including:
o the applicability and effect of such provisions upon any payment or
distribution of our assets to creditors upon any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of
creditors or marshaling of assets or any bankruptcy, insolvency or
similar proceedings;
o the applicability and effect of such provisions in the event of
specified defaults with respect to any Senior Debt, including the
circumstances under which and the periods in which we will be
prohibited from making payments on the Subordinated Debt Securities;
and
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o the definition of Senior Debt applicable to the Subordinated Debt
Securities of that series and, if the series is issued on a senior
subordinated basis, the definition of Subordinated Debt applicable to
that series.
The prospectus supplement will also describe as of a recent date the
approximate amount of Senior Debt to which the Subordinated Debt Securities of
that series will be subordinated.
The failure to make any payment on any of the Subordinated Debt Securities
by reason of the subordination provisions of the Subordinated Indenture
described in the prospectus supplement will not be construed as preventing the
occurrence of an Event of Default with respect to the Subordinated Debt
Securities arising from any such failure to make payment.
The subordination provisions described above will not be applicable to
payments in respect of the Subordinated Debt Securities from a defeasance trust
established in connection with any defeasance or covenant defeasance of the
Subordinated Debt Securities as described under "-- Defeasance and Covenant
Defeasance."
FORM, EXCHANGE AND TRANSFER
The Debt Securities of each series will be issuable only in fully
registered form, without coupons, and, unless otherwise specified in the
applicable prospectus supplement, only in denominations of $1,000 and integral
multiples thereof. (Section 302)
At the option of the Holder, subject to the terms of the applicable
Indenture and the limitations applicable to Global Securities, Debt Securities
of each series will be exchangeable for other Debt Securities of the same series
of any authorized denomination and of a like tenor and aggregate principal
amount. (Section 305)
Subject to the terms of the applicable Indenture and the limitations
applicable to Global Securities, Debt Securities may be presented for exchange
as provided above or for registration of transfer (duly endorsed or with the
form of transfer endorsed thereon duly executed) at the office of the Security
Registrar or at the office of any transfer agent designated by us for such
purpose. No service charge will be made for any registration of transfer or
exchange of Debt Securities, but we may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith. Such
transfer or exchange will be effected upon the Security Registrar or such
transfer agent, as the case may be, being satisfied with the documents of title
and identity of the person making the request. The Security Registrar and any
other transfer agent initially designated by us for any Debt Securities will be
named in the applicable prospectus supplement. (Section 305) We may at any time
designate additional transfer agents or rescind the designation of any transfer
agent or approve a change in the office through which any transfer agent acts,
except that we will be required to maintain a transfer agent in each Place of
Payment for the Debt Securities of each series. (Section 1002).
If the Debt Securities of any series (or of any series and specified terms)
are to be redeemed in part, we will not be required to (i) issue, register the
transfer of or exchange any Debt Security of that series (or of that series and
specified terms, as the case may be) during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of any such
Debt Security that may be selected for redemption and ending at the close of
business on the day of such mailing or (ii) register the transfer of or exchange
any Debt Security so selected for redemption, in whole or in part, except the
unredeemed portion of any such Debt Security being redeemed in part. (Section
305)
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GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more Global Securities which will have an aggregate
principal amount equal to that of the Debt Securities represented thereby. Each
Global Security will be registered in the name of a Depositary or its nominee
identified in the applicable prospectus supplement, will be deposited with such
Depositary or nominee or its custodian and will bear a legend regarding the
restrictions on exchanges and registration of transfer thereof referred to below
and any such other matters as may be provided for pursuant to the applicable
Indenture.
Notwithstanding any provision of the Indentures or any Debt Security
described in this prospectus, no Global Security may be exchanged in whole or in
part for Debt Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any person other than the
Depositary for such Global Security or any nominee of such Depositary unless:
(1) the Depositary has notified us that it is unwilling or unable
to continue as Depositary for such Global Security or has
ceased to be qualified to act as such as required by the
applicable Indenture,
(2) an Event of Default with respect to the Debt Securities
represented by such Global Security has occurred and is
continuing and the Security Registrar has received a written
request from the Depositary to issue certificated Debt
Securities, or
(3) other circumstances exist, in addition to or in lieu of those
described above, as may be described in the applicable
prospectus supplement.
All Debt Securities issued in exchange for a Global Security or any portion
thereof will be registered in such names as the Depositary may direct. (Sections
205 and 305)
As long as the Depositary, or its nominee, is the registered Holder of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Security and the Debt
Securities that it represents for all purposes under the Debt Securities and the
applicable Indenture. Except in the limited circumstances referred to above,
owners of beneficial interests in a Global Security will not be entitled to have
such Global Security or any Debt Securities that it represents registered in
their names, will not receive or be entitled to receive physical delivery of
certificated Debt Securities in exchange therefor and will not be considered to
be the owners or Holders of such Global Security or any Debt Securities that it
represents for any purpose under the Debt Securities or the applicable
Indenture. All payments on a Global Security will be made to the Depositary or
its nominee, as the case may be, as the Holder of the security. The laws of some
jurisdictions require that some purchasers of Debt Securities take physical
delivery of such Debt Securities in definitive form. These laws may impair the
ability to transfer beneficial interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited to
institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debt Securities represented by the Global
Security to the accounts of its participants. Ownership of beneficial interests
in a Global Security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the Depositary
(with respect to participants' interests) or any such participant (with respect
to interests of persons held by such participants on their behalf). Payments,
transfers, exchanges and other matters relating to beneficial interests in a
Global Security may be subject
10
to various policies and procedures adopted by the Depositary from time to time.
None of us, the Trustees or the agents of ourself or the Trustees will have any
responsibility or liability for any aspect of the Depositary's or any
participant's records relating to, or for payments made on account of,
beneficial interests in a Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial interests.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment
of interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest. (Section 307)
Unless otherwise indicated in the applicable prospectus supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as we
may designate for such purpose from time to time, except that at our option
payment of any interest may be made by check mailed to the address of the Person
entitled thereto as such address appears in the Security Register. Unless
otherwise indicated in the applicable prospectus supplement, the corporate trust
office of the Trustee under the Senior Indenture in The City of New York will be
designated as sole Paying Agent for payments with respect to Senior Debt
Securities of each series, and the corporate trust office of the Trustee under
the Subordinated Indenture in The City of New York will be designated as the
sole Paying Agent for payment with respect to Subordinated Debt Securities of
each series. Any other Paying Agents initially designated by us for the Debt
Securities of a particular series will be named in the applicable prospectus
supplement. We may at any time designate additional Paying Agents or rescind the
designation of any Paying Agent or approve a change in the office through which
any Paying Agent acts, except that we will be required to maintain a Paying
Agent in each Place of Payment for the Debt Securities of a particular series.
(Section 1002)
All moneys paid by us to a Paying Agent for the payment of the principal of
or any premium or interest on any Debt Security which remain unclaimed at the
end of two years after such principal, premium or interest has become due and
payable will be repaid to us, and the Holder of such Debt Security thereafter
may look only to us for payment thereof. (Section 1003)
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may not consolidate with or merge into, or transfer, lease or otherwise
dispose of all or substantially all of our assets to, any Person (a "successor
Person"), and may not permit any Person to consolidate with or merge into us,
unless:
(1) the successor Person (if any) is a corporation, partnership,
trust or other entity organized and validly existing under the
laws of any domestic jurisdiction and assumes our obligations
on the Debt Securities and under the Indentures,
(2) immediately after giving effect to the transaction, no Event
of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have occurred
and be continuing and
(3) several other conditions, including any additional conditions
with respect to any particular Debt Securities specified in
the applicable prospectus supplement, are met. (Section 801)
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EVENTS OF DEFAULT
Unless otherwise specified in the prospectus supplement, each of the
following will constitute an Event of Default under the applicable Indenture
with respect to Debt Securities of any series:
(1) failure to pay principal of or any premium on any Debt
Security of that series when due, whether or not, in the case
of Subordinated Debt Securities, such payment is prohibited by
the subordination provisions of the Subordinated Indenture;
(2) failure to pay any interest on any Debt Securities of that
series when due, continued for 30 days, whether or not, in the
case of Subordinated Debt Securities, such payment is
prohibited by the subordination provisions of the Subordinated
Indenture;
(3) failure to deposit any sinking fund payment, when due, in
respect of any Debt Security of that series, whether or not,
in the case of Subordinated Debt Securities, such deposit is
prohibited by the subordination provisions of the Subordinated
Indenture;
(4) failure to perform or comply with the provisions described
under "Consolidation, Merger and Sale of Assets";
(5) failure to perform any of our other covenants in such
Indenture (other than a covenant included in such Indenture
solely for the benefit of a series other than that series),
continued for 60 days after written notice has been given by
the applicable Trustee, or the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that
series, as provided in such Indenture; and
(6) certain events of bankruptcy, insolvency or reorganization
affecting us, any Significant Subsidiary or any group of
Subsidiaries that together would constitute a Significant
Subsidiary. (Section 501)
If an Event of Default (other than an Event of Default described in clause
(6) above) with respect to the Debt Securities of any series at the time
Outstanding shall occur and be continuing, either the applicable Trustee or the
Holders of at least 25% in principal amount of the Outstanding Debt Securities
of that series by notice as provided in the Indenture may declare the principal
amount of the Debt Securities of that series (or, in the case of any Debt
Security that is an Original Issue Discount Debt Security or the principal
amount of which is not then determinable, such portion of the principal amount
of such Debt Security, or such other amount in lieu of such principal amount, as
may be specified in the terms of such Debt Security) to be due and payable
immediately. If an Event of Default described in clause (6) above with respect
to the Debt Securities of any series at the time Outstanding shall occur, the
principal amount of all the Debt Securities of that series (or, in the case of
any such Original Issue Discount Security or other Debt Security, such specified
amount) will automatically, and without any action by the applicable Trustee or
any Holder, become immediately due and payable. After any such acceleration, but
before a judgment or decree based on acceleration, the Holders of a majority in
principal amount of the Outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration if all Events of
Default, other than the non-payment of accelerated principal (or other specified
amount), have been cured or waived as provided in the applicable Indenture.
(Section 502) For information as to waiver of defaults, see "-- Modification and
Waiver" below.
Subject to the provisions of the Indentures relating to the duties of the
Trustees in case an Event of Default shall occur and be continuing, each Trustee
will be under no obligation to exercise any of its rights or powers under the
applicable Indenture at the request or direction of any of the Holders, unless
12
such Holders shall have offered to such Trustee reasonable indemnity. (Section
603) Subject to such provisions for the indemnification of the Trustees, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Debt Securities
of that series. (Section 512)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the applicable Indenture, or for the appointment
of a receiver or a trustee, or for any other remedy thereunder, unless:
(1) such Holder has previously given to the Trustee under the
applicable Indenture written notice of a continuing Event of
Default with respect to the Debt Securities of that series,
(2) the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of that series have made written
request, and such Holder or Holders have offered reasonable
indemnity, to the Trustee to institute such proceeding as
trustee and
(3) the Trustee has failed to institute such proceeding, and has
not received from the Holders of a majority in principal
amount of the Outstanding Debt Securities of that series a
direction inconsistent with such request, within 60 days after
such notice, request and offer. (Section 507)
However, such limitations do not apply to a suit instituted by a Holder of
a Debt Security for the enforcement of payment of the principal of or any
premium or interest on such Debt Security on or after the applicable due date
specified in such Debt Security or, if applicable, to convert such Debt
Security. (Section 508)
We will be required to furnish to each Trustee annually a statement by
certain of our officers as to whether or not we, to their knowledge, are in
default in the performance or observance of any of the terms, provisions and
conditions of the applicable Indenture and, if so, specifying all such known
defaults. (Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of an Indenture may be made by us and the
applicable Trustee with the consent of the Holders of a majority in principal
amount of the Outstanding Debt Securities of each series affected by such
modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Debt Security,
(2) reduce the principal amount of, or any premium or interest on,
any Debt Security,
(3) reduce the amount of principal of an Original Issue Discount
Security or any other Debt Security payable upon acceleration
of the Maturity thereof,
(4) change the place or currency of payment of principal of, or
any premium or interest on, any Debt Security,
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(5) impair the right to institute suit for the enforcement of any
payment on or any conversion right with respect to any Debt
Security,
(6) in the case of Subordinated Debt Securities, modify the
subordination or conversion provisions in a manner adverse to
the Holders of the Subordinated Debt Securities,
(7) reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of whose Holders is
required for modification or amendment of the Indenture,
(8) reduce the percentage in principal amount of Outstanding Debt
Securities of any series necessary for waiver of compliance
with certain provisions of the Indenture or for waiver of
certain defaults or
(9) modify such provisions with respect to modification and
waiver. (Section 902)
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may waive compliance by us with certain restrictive
provisions of the applicable Indenture. (Section 1009) The Holders of a majority
in principal amount of the Outstanding Debt Securities of any series may waive
any past default under the applicable Indenture, except a default in the payment
of principal, premium or interest and certain covenants and provisions of the
Indenture which cannot be amended without the consent of the Holder of each
Outstanding Debt Security of such series affected. (Section 513)
The Indentures provide that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver or other action under such
Indenture as of any date,
(1) the principal amount of an Original Issue Discount Security
that will be deemed to be Outstanding will be the amount of
the principal thereof that would be due and payable as of such
date upon acceleration of the Maturity thereof to such date,
(2) if, as of such date, the principal amount payable at the
Stated Maturity of a Debt Security is not determinable (for
example, because it is based on an index), the principal
amount of such Debt Security deemed to be Outstanding as of
such date will be an amount determined in the manner
prescribed for such Debt Security and
(3) the principal amount of a Debt Security denominated in one or
more foreign currencies or currency units that will be deemed
to be Outstanding will be the U.S. dollar equivalent,
determined as of such date in the manner prescribed for such
Debt Security, of the principal amount of such Debt Security
(or, in the case of a Debt Security described in clause (1) or
(2) above, of the amount described in such clause).
Certain Debt Securities, including those for whose payment or redemption
money has been deposited or set aside in trust for the Holders and those that
have been fully defeased pursuant to Section 1502, will not be deemed to be
Outstanding. (Section 101)
Except in certain limited circumstances, we will be entitled to set any day
as a record date for the purpose of determining the Holders of Outstanding Debt
Securities of any series entitled to give or take any direction, notice,
consent, waiver or other action under the applicable Indenture, in the manner
and subject to the limitations provided in the Indenture. In certain limited
circumstances, the Trustee will be entitled to set a record date for action by
Holders. If a record date is set for any action to be taken by Holders of a
particular series, such action may be taken only by persons who are Holders of
Outstanding
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Debt Securities of that series on the record date. To be effective, such action
must be taken by Holders of the requisite principal amount of such Debt
Securities within a specified period following the record date. For any
particular record date, this period will be 180 days or such other period as may
be specified by us (or the Trustee, if it set the record date), and may be
shortened or lengthened (but not beyond 180 days) from time to time. (Section
104)
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable prospectus supplement, we
may elect, at our option at any time, to have the provisions of Section 1502,
relating to defeasance and discharge of indebtedness, or Section 1503, relating
to defeasance of certain restrictive covenants applied to the Debt Securities of
any series, or to any specified part of a series. (Section 1501)
DEFEASANCE AND DISCHARGE. The Indentures provide that, upon our exercise of
our option (if any) to have Section 1502 applied to any Debt Securities, we will
be discharged from all our obligations, and, if such Debt Securities are
Subordinated Debt Securities, the provisions of the Subordinated Indenture
relating to subordination (but not to conversion, if applicable) will cease to
be effective, with respect to such Debt Securities (except for certain
obligations to exchange or register the transfer of Debt Securities, to replace
stolen, lost or mutilated Debt Securities, to maintain paying agencies and to
hold moneys for payment in trust) upon the deposit in trust for the benefit of
the Holders of such Debt Securities of money or U.S. Government Obligations, or
both, which, through the payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount sufficient to pay
the principal of and any premium and interest on such Debt Securities on the
respective Stated Maturities in accordance with the terms of the applicable
Indenture and such Debt Securities. Such defeasance or discharge may occur only
if, among other things,
(1) we have delivered to the applicable Trustee an Opinion of
Counsel to the effect that we have received from, or there has
been published by, the United States Internal Revenue Service
a ruling, or there has been a change in tax law, in either
case to the effect that Holders of such Debt Securities will
not recognize gain or loss for federal income tax purposes as
a result of such deposit, defeasance and discharge and will be
subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if
such deposit, defeasance and discharge were not to occur;
(2) no Event of Default or event that with the passing of time or
the giving of notice, or both, shall constitute an Event of
Default shall have occurred and be continuing;
(3) such deposit, defeasance and discharge will not result in a
breach or violation of, or constitute a default under, any
agreement or instrument to which we are a party or by which we
are bound;
(4) in the case of Subordinated Debt Securities, at the time of
such deposit, no default in the payment of all or a portion of
principal of (or premium, if any) or interest on any of our
Senior Debt shall have occurred and be continuing, no event of
default shall have resulted in the acceleration of any of our
Senior Debt and no other event of default with respect to any
of our Senior Debt shall have occurred and be continuing
permitting after notice or the lapse of time, or both, the
acceleration thereof; and
(5) we have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit shall not cause the Trustee or the
trust so created to be subject to the Investment Company Act
of 1940. (Sections 1502 and 1504)
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DEFEASANCE OF CERTAIN COVENANTS. The Indentures provide that, upon our
exercise of our option (if any) to have Section 1503 applied to any Debt
Securities, we may omit to comply with certain restrictive covenants, including
those that may be described in the applicable prospectus supplement, the
occurrence of certain Events of Default, which are described above in clause (5)
(with respect to such restrictive covenants) and clauses (6) and (7) under
"Events of Default" and any that may be described in the applicable prospectus
supplement, will not be deemed to either be or result in an Event of Default
and, if such Debt Securities are Subordinated Debt Securities, the provisions of
the Subordinated Indenture relating to subordination (but not to conversion, if
applicable) will cease to be effective, in each case with respect to such Debt
Securities. In order to exercise such option, we must deposit, in trust for the
benefit of the Holders of such Debt Securities, money or U.S. Government
Obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such Debt
Securities on the respective Stated Maturities in accordance with the terms of
the applicable Indenture and such Debt Securities. Such covenant defeasance may
occur only if we have delivered to the applicable Trustee an Opinion of Counsel
that in effect says that Holders of such Debt Securities will not recognize gain
or loss for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit and defeasance were not to occur, and the requirements set
forth in clauses (2), (3), (4) and (5) above are satisfied. If we exercise this
option with respect to any Debt Securities and such Debt Securities were
declared due and payable because of the occurrence of any Event of Default, the
amount of money and U.S. Government Obligations so deposited in trust would be
sufficient to pay amounts due on such Debt Securities at the time of their
respective Stated Maturities but may not be sufficient to pay amounts due on
such Debt Securities upon any acceleration resulting from such Event of Default.
In such case, we would remain liable for such payments. (Sections 1503 and 1504)
NOTICES
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register. (Sections
101 and 106)
TITLE
We, the Trustees and any agent of us or a Trustee may treat the Person in
whose name a Debt Security is registered as the absolute owner of the Debt
Security (whether or not such Debt Security may be overdue) for the purpose of
making payment and for all other purposes. (Section 308)
TRUSTEES
We may maintain banking and other commercial relationships with any Trustee
and its affiliates in the ordinary course of business and any Trustee may own
debt securities and serve as Trustee under our other indentures.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by and construed in
accordance with the laws of the State of New York. (Section 112)
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DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
Our authorized capital stock currently consists of 55,000,000 shares of
common stock, $.10 par value per share, and 2,500,000 shares of preferred stock,
$.10 par value per share. The following summary description relating to the
capital stock does not purport to be complete. For a detailed description,
reference is made to our certificate of incorporation.
COMMON STOCK
Our common stock is traded on the New York Stock Exchange under the symbol
"TBI." As of April 29, 2003, 39,419,303 shares of common stock were issued and
held of record by approximately 1,758 holders.
Holders of shares of common stock are entitled to one vote for each share
held of record on all matters submitted to a vote of stockholders. There are no
cumulative voting rights with respect to the election of directors. Holders of
common stock have no preemptive rights and are entitled to such dividends as may
be declared by our board of directors out of legally available funds. The common
stock is not entitled to any sinking fund, redemption or conversion provisions.
If we liquidate, dissolve, or wind up our business, the holders of common stock
will be entitled to share ratably in our net assets remaining after the payment
of all creditors and the liquidation preferences of any preferred stock. The
outstanding shares of common stock are, and additional shares of common stock
that we issue will be, fully paid and non-assessable. We have never paid any
cash dividends and do not intend to pay any cash dividends on the common stock
in the foreseeable future.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock, as well as the
rights agent under our rights plan, is EquiServe Trust Company, N.A.
PREFERRED STOCK
The prospectus supplement will specify any terms of any series of preferred
stock offered by it including:
o the series, the number of shares offered and the liquidation value of
the preferred stock,
o the price at which the preferred stock will be issued,
o the dividend rate, the dates on which the dividends will be payable and
other terms relating to the payment of dividends on the preferred
stock,
o the liquidation preference of the preferred stock,
o whether the preferred stock is redeemable or subject to a sinking fund,
and the terms of any such redemption or sinking fund,
o whether the preferred stock is convertible into or exchangeable for any
other securities, and the terms of any such conversion or exchange, and
o any additional rights, preferences, qualifications, limitations or
restrictions of the preferred stock.
17
The description of the terms of the preferred stock to be set forth in an
applicable prospectus supplement will not be complete and will be subject to and
qualified in its entirety by reference to the statement of resolution relating
to the applicable series of preferred stock. The registration statement of which
this prospectus forms a part will include the statement of resolution as an
exhibit or will incorporate it by reference.
Our certificate of incorporation authorizes our board to issue up to
2,500,000 shares of preferred stock without stockholder approval and to set the
rights, preferences and other designations, including voting rights, of those
shares as our board of directors may determine. These provisions, alone or in
combination with each other and with the stockholder rights plan described
below, may discourage transactions involving actual or potential changes of
control of Tom Brown, including transactions that otherwise could involve
payment of a premium over prevailing market prices to holders of common stock.
SPECIAL PROVISIONS OF OUR CERTIFICATE OF INCORPORATION AND DELAWARE LAW
Our certificate of incorporation and bylaws contain provisions that may
have the effect of delaying, deferring or preventing a change in control of Tom
Brown. These provisions, among other things, provide for noncumulative voting in
the election of directors, impose certain procedural requirements on
stockholders who wish to make nomination for the election of directors or
propose other actions at stockholders' meetings and two-thirds voting
requirements for the amendment of certain provisions of our bylaws.
Our certificate of incorporation limits the liability of our directors (in
their capacity as directors but not in their capacity as officers) to us or our
stockholders. Specifically, our directors will not be personally liable for
monetary damages for breach of a director's fiduciary duty as a director, except
for liability for (a) any breach of the director's duty of loyalty to Tom Brown
or our stockholders, (b) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) unlawful payments of
dividends or unlawful stock repurchases or redemptions as provided in Section
174 of the Delaware General Corporation Law or (d) any transaction from which
the director derived an improper personal benefit. In addition to the
circumstances in which a director is not personally liable as set forth in the
preceding sentence, a director will not be liable to the fullest extent
permitted by any amendment to the Delaware General Corporation Law hereafter
enacted that further limits the liability of a director.
Our bylaws and certificate of incorporation provide that we shall indemnify
our officers, directors, employees and agents to the full extent permitted by
law 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 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. Similarly, 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
18
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.
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law. In general, Section 203 prohibits a public Delaware corporation
from engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless (a) before that person became an
interested stockholder, the corporation's board of directors approved the
transaction in which the interested stockholder became an interested stockholder
or approved the business combination; (b) upon completion of the transaction
that resulted in the interested stockholder's becoming an interested
stockholder, the interested stockholder owns at least 85% of the voting stock
outstanding at the time the transaction commenced (excluding stock held by
directors who are also officers of the corporation and by employee stock plans
that do not provide employees with the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange offer);
or (c) following the transaction in which that person became an interested
stockholder, the business combination is approved by the corporation's board of
directors and authorized at a meeting of stockholders by the affirmative vote of
the holders of at least two-thirds of the outstanding voting stock not owned by
the interested stockholder. Under Section 203, these restrictions also do not
apply to certain business combinations proposed by an interested stockholder
following the announcement or notification of one of certain extraordinary
transactions involving the corporation and a person who was not an interested
stockholder during the previous three years or who became an interested
stockholder with the approval of a majority of the corporation's directors, if
that extraordinary transaction is approved or not opposed by a majority of the
directors who were directors before any person became an interested stockholder
in the previous three years or who were recommended for election or elected to
succeed such directors by a majority of such directors then in office. "Business
combination" includes mergers, assets sales and other transactions resulting in
a financial benefit to the stockholder. "Interested stockholder" is a person
who, together with affiliates and associates, owns (or, within three years, did
own) 15% or more of the corporation's voting stock.
STOCKHOLDER RIGHTS PLAN
We have a stockholder rights plan.
Under the rights plan, each right entitles the registered holder to
purchase from us one-hundredth of a share of our Series B Preferred Stock, $.10
par value (the "preferred shares"), at a price of $120 per one one-hundredth of
a preferred share, subject to adjustment.
Until the distribution date the rights will be evidenced by the
certificates representing our common stock.
The rights will separate from the common stock, or a distribution date will
occur, upon the earlier of:
19
o 10 business days following a public announcement that a person or group
of affiliated or associated persons acquired beneficial ownership of
15% or more of our outstanding common stock (an "acquiring person"),
subject to certain exceptions set forth in the rights plan, or
o 10 business days following the commencement or announcement of an
intention to make, a tender offer or exchange offer the consummation of
which would result in the beneficial ownership by a person or group of
15% or more of our common stock.
Until the distribution date, the rights will be transferred with and only
with our common stock. As soon as practicable following the distribution date,
separate certificates evidencing the rights will be mailed to holders of record
of our common stock as of the close of business on the distribution date and
such separate rights certificates alone will thereafter evidence the rights.
The rights are not exercisable until the distribution date. The rights will
expire on March 1, 2011, unless the expiration date is extended or unless the
rights are earlier redeemed as described below.
The preferred shares purchasable upon exercise of the rights will be
nonredeemable. Each preferred share will have a minimum preferential quarterly
dividend rate of $1.00 per share, but will be entitled to an aggregate dividend
of 100 times the dividend, if any, declared on our common stock. In the event of
liquidation, the holders of the preferred shares will receive a preferential
liquidation payment of $100 per share, but will be entitled to receive an
aggregate liquidation payment equal to 100 times the payment made per share of
common stock. Each preferred share will have one hundred votes, voting together
with the common stock. Finally, in the event of any merger, consolidation or
other transaction in which common stock is exchanged, each preferred share will
be entitled to receive 100 times the amount received per share of common stock.
Because of the nature of the preferred shares' dividend, liquidation and
voting rights, the value of one one-hundredth interest in a preferred share
purchasable upon exercise of each right should approximate the value of one
share of common stock.
The purchase price and the number of preferred shares or other securities
issuable upon exercise of the rights are subject to adjustment from time to time
to prevent dilution.
If, after any person becomes an acquiring person, we were acquired in a
merger or other business combination transaction or more than 50% of our
consolidated assets, earning power or cash flow generation capacity were sold,
proper provision will be made so that each holder of a right will thereafter
have the right to receive upon the exercise thereof at the then current purchase
price of the right, that number of shares of common stock of the acquiring
company which at the time of such transaction would have a market value of two
times the purchase price of the right.
In the event any person becomes an acquiring person, each right then
outstanding would "flip-in" and become a right to buy that number of shares of
common stock that at the time of such acquisition would have a market value of
two times the exercise price of the right. The acquiring person who triggered
the rights would be excluded from the "flip-in" because his rights would have
become void upon his triggering acquisition.
At anytime after a person has become an acquiring person and the acquiring
person owns less than 50% of our voting shares then outstanding, our board of
directors would have the option to issue shares of common stock in exchange for
the rights (other than rights owned by the acquiring person which would be void)
at the rate of one share for each right.
20
At any time prior to a person becoming an acquiring person, our board of
directors may redeem the rights in whole, but not in part, at a price of $.01
per right subject to adjustment. Immediately upon the action of our board of
directors ordering redemption of the rights, the right to exercise the rights
will terminate and the only right of the holders of rights will be to receive
the redemption price.
The terms of the rights may be amended by our board of directors without
the consent of the holders of the rights. However, from and after the date that
any person becomes an acquiring person, the rights may be amended by our board
of directors solely in order (1) to cure any ambiguity, (2) to correct or
supplement any defective or otherwise inconsistent provision in the rights plan,
(3) subject to certain restrictions, to shorten or lengthen any time period or
(4) to otherwise change or supplement the rights plan in a manner that does not
adversely affect the interests of the holders of the rights (other than an
acquiring person or an affiliate or associate of an acquiring person). The
amendment provision of the rights plan provides that the 15% threshold can be
lowered to not less than 10%; provided, however, that no person who then
beneficially owns a number of shares of common stock equal to or greater than
the reduced threshold shall be an acquiring person unless such person acquires
additional shares.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
We may offer fractional shares of preferred stock, rather than full shares
of preferred stock. If we decide to offer fractional shares of preferred stock,
we will issue receipts for depositary shares. Each depositary share will
represent a fraction of a share of a particular series of preferred stock. A
prospectus supplement will indicate that fraction. The shares of preferred stock
represented by depositary shares will be deposited under a deposit agreement
between us and a depositary that is a bank or trust company that meets certain
requirements and is selected by us. Each owner of a depositary share will be
entitled to all of the rights and preferences of the preferred stock represented
by the depositary share. The depositary shares will be evidenced by depositary
receipts issued pursuant to the deposit agreement. Depositary receipts will be
distributed to those persons purchasing the fractional shares of preferred stock
in accordance with the terms of the offering.
We have summarized selected provisions of the deposit agreement and the
depositary receipts. The summary is not complete. The forms of the deposit
agreement and the depositary receipts relating to any particular issue of
depositary shares will be filed with the Securities and Exchange Commission on a
Current Report on Form 8-K prior to our offering of the depositary shares, and
you should read such documents for provisions that may be important to you.
DIVIDENDS AND OTHER DISTRIBUTIONS
If we pay a cash distribution or dividend on a series of preferred stock
represented by depositary shares, the depositary will distribute such dividends
to the record holders of such depositary shares. If the distributions are in
property other than cash, the depositary will distribute the property to the
record holders of the depositary shares. If, however, the depositary determines
that it is not feasible to make the distribution of property, the depositary
may, with our approval, sell such property and distribute the net proceeds from
such sale to the holders of the preferred stock.
REDEMPTION OF DEPOSITARY SHARES
If we redeem a series of preferred stock represented by depositary shares,
the depositary will redeem the depositary shares from the proceeds received by
the depositary in connection with the redemption.
21
The redemption price per depositary share will equal the applicable fraction of
the redemption price per share of the preferred stock. If fewer than all the
depositary shares are redeemed, the depositary shares to be redeemed will be
selected by lot or pro rata as the depositary may determine.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the preferred
stock represented by depositary shares are entitled to vote, the depositary will
mail the notice to the record holders of the depositary shares relating to such
preferred stock. Each record holder of these depositary shares on the record
date, which will be the same date as the record date for the preferred stock,
may instruct the depositary as to how to vote the preferred stock represented by
such holder's depositary shares. The depositary will endeavor, insofar as
practicable, to vote the amount of the preferred stock represented by such
depositary shares in accordance with such instructions, and we will take all
action that the depositary deems necessary in order to enable the depositary to
do so. The depositary will abstain from voting shares of the preferred stock to
the extent it does not receive specific instructions from the holders of
depositary shares representing such preferred stock.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended by agreement between the
depositary and us. Any amendment that materially and adversely alters the rights
of the holders of depositary shares will not, however, be effective unless such
amendment has been approved by the holders of at least a majority of the
depositary shares then outstanding. The deposit agreement may be terminated by
the depositary or us only if (a) all outstanding depositary shares have been
redeemed or (b) there has been a final distribution in respect of the preferred
stock in connection with any liquidation, dissolution or winding up of our
company and such distribution has been distributed to the holders of depositary
receipts.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay charges of
the depositary in connection with the initial deposit of the preferred stock and
any redemption of the preferred stock. Holders of depositary receipts will pay
other transfer and other taxes and governmental charges and any other charges,
including a fee for the withdrawal of shares of preferred stock upon surrender
of depositary receipts, as are expressly provided in the deposit agreement to be
for their accounts.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of depositary receipts at the principal office of the
depositary, subject to the terms of the deposit agreement, the owner of the
depositary shares may demand delivery of the number of whole shares of preferred
stock and all money and other property, if any, represented by those depositary
shares. Partial shares of preferred stock will not be issued. If the depositary
receipts delivered by the holder evidence a number of depositary shares in
excess of the number of depositary shares representing the number of whole
shares of preferred stock to be withdrawn, the depositary will deliver to such
holder at the same time a new depositary receipt evidencing the excess number of
depositary shares. Holders of preferred stock thus withdrawn may not thereafter
deposit those shares under the deposit agreement or receive depositary receipts
evidencing depositary shares therefor.
22
MISCELLANEOUS
The depositary will forward to holders of depositary receipts all reports
and communications from us that are delivered to the depositary and that we are
required to furnish to the holders of the preferred stock.
Neither we nor the depositary will be liable if we are prevented or delayed
by law or any circumstance beyond our control in performing our obligations
under the deposit agreement. The obligations of the depositary and us under the
deposit agreement will be limited to performance in good faith of our duties
thereunder, and we will not be obligated to prosecute or defend any legal
proceeding in respect of any depositary shares or preferred stock unless
satisfactory indemnity is furnished. We may rely upon written advice of counsel
or accountants, or upon information provided by persons presenting preferred
stock for deposit, holders of depositary receipts or other persons believed to
be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering notice to us of its
election to do so, and we may at any time remove the depositary. Any such
resignation or removal will take effect upon the appointment of a successor
depositary and its acceptance of such appointment. Such successor depositary
must be appointed within 60 days after delivery of the notice of resignation or
removal and must be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least
$100,000,000.
DESCRIPTION OF SECURITIES WARRANTS
We may issue securities warrants for the purchase of debt securities,
preferred stock, depositary shares, common stock or other securities. Securities
warrants may be issued independently or together with debt securities, preferred
stock, depositary shares, common stock or other securities offered by any
prospectus supplement and may be attached to or separate from any such offered
securities. Each series of securities warrants will be issued under a separate
warrant agreement to be entered into between us and a bank or trust company, as
warrant agent, all as set forth in a prospectus supplement relating to the
particular issue of securities warrants. The securities warrant agent will act
solely as our agent in connection with the securities warrants and will not
assume any obligation or relationship of agency or trust for or with any holders
of securities warrants or beneficial owners of securities warrants.
We have summarized selected provisions of the securities warrant
agreements. A form of the applicable securities warrant agreement will be filed
with the Securities and Exchange Commission on Form 8-K prior to any offering of
the applicable warrants. A prospectus supplement relating to a particular issue
of securities warrants will contain the terms of and information relating to
that issue of securities warrants, including, where applicable:
o the designation, aggregate principal amount, currencies, denominations
and terms of the series of debt securities purchasable upon exercise of
securities warrants to purchase debt securities and the price at which
such debt securities may be purchased upon such exercise;
o the number of shares of common stock purchasable upon the exercise of
securities warrants to purchase common stock and the price at which
such number of shares of common stock may be purchased upon such
exercise;
23
o the number of shares and series of preferred stock or depositary shares
purchasable upon the exercise of securities warrants to purchase
preferred stock or depositary shares and the price at which such number
of shares of such series of preferred stock or depositary shares may be
purchased upon such exercise;
o the designation and number of units of other securities purchasable
upon the exercise of securities warrants to purchase other securities
and the price at which such number of units of such other securities
may be purchased upon such exercise;
o the date on which the right to exercise such securities warrants shall
commence and the date on which such right shall expire;
o United States federal income tax consequences applicable to such
securities warrants;
o the amount of securities warrants outstanding as of the most recent
practicable date; and
o any other terms of such securities warrants.
Securities warrants will be issued in registered form only. The exercise
price for securities warrants will be subject to adjustment in accordance with a
prospectus supplement relating to the particular issue of securities warranties.
Each securities warrant will entitle the holder thereof to purchase such
principal amount of debt securities or such number of shares of common stock,
preferred stock, depositary shares or other securities at such exercise price as
shall in each case be set forth in, or calculable from, a prospectus supplement
relating to the securities warrants, which exercise price may be subject to
adjustment upon the occurrence of certain events as set forth in such prospectus
supplement. After the close of business on the expiration date, or such later
date to which such expiration date may be extended by us, unexercised securities
warrants will become void. The place or places where, and the manner in which,
securities warrants may be exercised shall be specified in a prospectus
supplement relating to such securities warrants.
Prior to the exercise of any securities warrants to purchase debt
securities, common stock, preferred stock, depositary shares or other
securities, holders of such securities warrants will not have any of the rights
of holders of debt securities, common stock, preferred stock, depositary shares
or other securities, as the case may be, purchasable upon such exercise,
including the right to receive payments of principal of, premium, if any, or
interest, if any, on the debt securities purchasable upon such exercise or to
enforce covenants in any applicable indenture, or to receive payments of
dividends, if any, on the common stock, preferred stock or depositary shares
purchasable upon such exercise, or to exercise any applicable right to vote.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts obligating
holders to purchase from us, and obligating us to sell to holders, a specified
number of shares of common stock or other securities at a future date or dates,
which we refer to in this prospectus as "stock purchase contracts." The price
per share of the securities and the number of shares of the securities may be
fixed at the time the stock purchase contracts are issued or may be determined
by reference to a specific formula set forth in the stock purchase contracts.
The stock purchase contracts may be issued separately or as part of units
consisting of a stock purchase contract and debt securities, preferred
securities, warrants or debt obligations of third parties, including U.S.
treasury securities, securing the holders' obligations to
24
purchase the securities under the stock purchase contracts, which we refer to
herein as "stock purchase units." The stock purchase contracts may require
holders to secure their obligations under the stock purchase contracts in a
specified manner. The stock purchase contracts also may require us to make
periodic payments to the holders of the stock purchase units or vice versa, and
those payments may be unsecured or refunded on some basis.
The applicable prospectus supplement will describe the terms of the stock
purchase contracts or stock purchase units and, if applicable, collateral or
depositary arrangements relating to the stock purchase contracts or stock
purchase units. Material United States federal income tax considerations
applicable to the stock purchase units and the stock purchase contracts will
also be discussed in the applicable prospectus supplement.
o the names of the selling stockholders;
o the number of shares of common stock held by each of the selling
stockholders;
o the percentage of the outstanding common stock held by each of the
selling stockholders; and
o the number of shares of common stock offered by each of the selling
stockholders.
PLAN OF DISTRIBUTION
Any of the securities that may be offered by us pursuant to this prospectus
may be sold in or outside the United States through underwriters or dealers,
agents or directly to one or more purchasers, including our existing
stockholders in a rights offering. The prospectus supplement relating to any
offering of securities will include, to the extent required, the following
information:
o the terms of the offering;
o the names of any underwriters, dealers or agents;
o the name or names of any managing underwriter or underwriters;
o the purchase price of the securities from us;
o the net proceeds to us from the sale of the securities;
o any delayed delivery arrangements;
25
o any underwriting discounts, commissions and other items constituting
underwriters' compensation;
o any initial public offering price;
o any discounts or concessions allowed or reallowed or paid to dealers;
and
o any commissions paid to agents.
If we use underwriters in the sale, the underwriters will acquire the
securities for their own account. The underwriters may resell the securities
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more firms acting as underwriters. Unless we inform you
otherwise in the prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions, and the
underwriters will be obligated to purchase all the offered securities if they
purchase any of them. The underwriters may change, from time to time, any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers.
If we use dealers in the sale of securities, the securities will be sold
directly to them as principals. They may then resell those securities to the
public at varying prices determined by the dealers at the time of resale.
We may sell the securities directly. In this case, no underwriters or
agents would be involved. We may sell securities upon the exercise of rights
that we may issue to our securityholders. We may sell the securities directly to
institutional investors or others who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any sale of those securities.
We may sell the securities through agents we designate from time to time.
Unless we inform you otherwise in the prospectus supplement, any agent will
agree to use its reasonable best efforts to solicit purchases for the period of
its appointment.
If we so indicate in the prospectus supplement, we may authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us, at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions
described in the prospectus supplement. The prospectus supplement will describe
the commission payable for solicitation of those contracts.
We may have agreements with the agents, dealers and underwriters to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments that the agents,
dealers or underwriters may be required to make. Agents, dealers and
underwriters may be customers of, engage in transactions with or perform
services for us in the ordinary course of their business.
26
LEGAL MATTERS
The validity of securities will be passed upon for us by Vinson & Elkins
L.L.P., Houston, Texas. Legal counsel to any underwriters may pass upon legal
matters for such underwriters.
EXPERTS
The consolidated financial statements of Tom Brown, Inc. as of December
31, 2002, and for the year ended December 31, 2002, have been incorporated by
reference herein and 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 audit
report covering the December 31, 2002, consolidated financial statements refers
to a change in the method of accounting for goodwill and other intangible assets
in 2002, and the method of accounting for derivative instruments and hedging
activities in 2001.
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 prospectus and elsewhere in this registration
statement by reference, is omitted pursuant to the Securities Act Rule 437a. In
June of 2002, Arthur Andersen LLP was convicted of obstructing justice, which is
a felony offense. The SEC prohibits firms convicted of a felony from auditing
public companies. Arthur Anderson LLP is thus unable to deliver a consent with
respect to such financial statements. Because Arthur Andersen LLP has not
consented to the inclusion of their report in this prospectus, you will not be
able to recover against Arthur Andersen LLP under Section 11 of the Securities
Act for any untrue statement of a material fact contained in the
financial statements audited by Arthur Andersen LLP or any omissions to
27
state a material fact required to be stated therein.
The estimated reserve evaluations and related calculations, which were
prepared by our petroleum engineering staff and reviewed by Ryder Scott Company,
L.P., independent petroleum engineering consultants, incorporated by reference
in this prospectus have been incorporated by reference in reliance on the
authority of said firm as experts in petroleum engineering.
28
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses of this offering (all of which are to be paid by the
registrant) are estimated to be as follows:
Securities and Exchange Commission registration fee..................................... $ 40,450
Legal fees and expenses................................................................. 200,000
Accounting fees and expenses............................................................ 200,000
Trustee fees and expenses............................................................... 50,000
Printing expenses....................................................................... 200,000
Miscellaneous........................................................................... 9,550
---------------
Total............................................................................. $ 700,000
===============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our bylaws and certificate of incorporation provide that we shall indemnify
our officers, directors, employees and agents to the full extent permitted by
law 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 Delaware General Corporation Law, inter alia, authorizes
a corporation to indemnify any person who was or is a party or its 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 attorney's 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 16. EXHIBITS
(a) Exhibits:
**1.1 - Form of Underwriting Agreement.
II-1
3.1 - Certificate of Incorporation, as amended, of the registrant
(incorporated by reference to Exhibit 3.1 in the
registrant's Form S-8 filed with the Securities and
Exchange Commission on December 6, 2000).
3.2 - Amended and Restated Bylaws, dated May 10, 2001
(incorporated by reference to Exhibit 3.1 in the
registrant's Form 10-Q for the quarterly period ended
March 31, 2001, and filed with the Securities and Exchange
Commission on May 14, 2001).
4.1 - First Amended and Restated Rights Agreement dated March 1,
2001 between the registrant and EquiServe Trust Company,
N.A. (incorporated by reference to Exhibit 4.2 in the
registrant's Form 10-K for the fiscal year ended
December 31, 2000, and filed with the Securities and
Exchange Commission on March 13, 2001).
*4.2 - Form of Senior Indenture.
*4.3 - Form of Subordinated Indenture.
**4.4 - Form of Debt Securities.
**4.5 - Form of Securities Warrants.
**4.6 - Form of Depositary Agreement.
**4.7 - Form of Depositary Receipts.
**4.8 - Form of Stock Purchase Contracts.
**4.9 - Form of Stock Purchase Units.
*5.1 - Opinion of Vinson & Elkins L.L.P.
*12.1 - Computation of Ratio of Earnings to Fixed Charges and Ratio
of Earnings to Fixed Charges and Preferred Stock Dividends.
*23.1 - Consent of KPMG LLP.
*23.2 - Consent of Ryder Scott Company, L.P.
23.3 - Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
24.1 - Powers of Attorney (included on the signature page of this
registration statement).
**25.1 - Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the Trustee under the
Senior Indenture.
**25.2 - Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the Trustee under the
Subordinated Indenture.
----------
* Filed herewith.
** To be filed by amendment or in a Current Report on Form 8-K.
ITEM 17. UNDERTAKINGS
(a) 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:
(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 Securities and Exchange Commission pursuant to Rule
424(b) under the Securities Act of 1933 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
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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 (a)(1)(i) and (a)(1)(ii) do not apply if
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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) 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.
(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) 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
either of the registrant pursuant to any charter provision, bylaw, contract,
arrangement, statute 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 them is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
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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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 1st day of
May, 2003.
TOM BROWN, INC.
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 James D. Lightner and Daniel G.
Blanchard, 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 Form S-3 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 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 below by the following persons in the
capacities indicated on the 1st day of May, 2003.
SIGNATURE TITLE
--------- -----
/s/ JAMES D. LIGHTNER
---------------------------------------------------- Chairman, Chief Executive Officer and President
James D. Lightner (principal executive officer)
/s/ DANIEL G. BLANCHARD
---------------------------------------------------- Executive Vice President, Chief
Daniel G. Blanchard Financial Officer and Treasurer
(principal financial officer)
/s/ RICHARD L. SATRE
---------------------------------------------------- Controller
Richard L. Satre (principal accounting officer)
/s/ THOMAS C. BROWN
----------------------------------------------------
Thomas C. Brown Director
/s/ DAVID M. CARMICHAEL
----------------------------------------------------
David M. Carmichael Director
/s/ HENRY GROPPE
----------------------------------------------------
Henry Groppe Director
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SIGNATURE TITLE
--------- -----
/s/ EDWARD W. LEBARON, JR.
----------------------------------------------------
Edward W. LeBaron, Jr. Director
/s/ ROBERT H. WHILDEN, JR.
----------------------------------------------------
Robert H. Whilden, Jr. Director
/s/ WAYNE W. MURDY
----------------------------------------------------
Wayne W. Murdy Director
/s/ JAMES B. WALLACE
----------------------------------------------------
James B. Wallace Director
/s/ JOHN C. LINEHAN
----------------------------------------------------
John C. Linehan Director
/s/ KENNETH B. BUTLER
----------------------------------------------------
Kenneth B. Butler Director
II-5
INDEX TO EXHIBITS
**1.1 - Form of Underwriting Agreement.
3.1 - Certificate of Incorporation, as amended, of the registrant
(incorporated by reference to Exhibit 3.1 in the
registrant's Form S-8 filed with the Securities and
Exchange Commission on December 6, 2000).
3.2 - Amended and Restated Bylaws, dated May 10, 2001
(incorporated by reference to Exhibit 3.1 in the
registrant's Form 10-Q for the quarterly period ended March
31, 2001, and filed with the Securities and Exchange
Commission on May 14, 2001).
4.1 - First Amended and Restated Rights Agreement dated March 1,
2001 between the registrant and EquiServe Trust Company,
N.A. (incorporated by reference to Exhibit 4.2 in the
registrant's Form 10-K for the fiscal year ended
December 31, 2000, and filed with the Securities and
Exchange Commission on March 13, 2001).
*4.2 - Form of Senior Indenture.
*4.3 - Form of Subordinated Indenture.
**4.4 - Form of Debt Securities.
**4.5 - Form of Securities Warrants.
**4.6 - Form of Depositary Agreement.
**4.7 - Form of Depositary Receipts.
**4.8 - Form of Stock Purchase Contracts.
**4.9 - Form of Stock Purchase Units.
*5.1 - Opinion of Vinson & Elkins L.L.P.
*12.1 - Computation of Ratio of Earnings to Fixed Charges and Ratio
of Earnings to Fixed Charges and Preferred Stock Dividends.
*23.1 - Consent of KPMG LLP.
*23.2 - Consent of Ryder Scott Company, L.P.
23.3 - Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
24.1 - Powers of Attorney (included on the signature page of this
registration statement).
**25.1 - Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the Trustee under the
Senior Indenture.
**25.2 - Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the Trustee under the
Subordinated Indenture.
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* Filed herewith.
** To be filed by amendment or in a Current Report on Form 8-K.