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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
TOM BROWN, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 95-1949781
(State of Incorporation) (IRS Employer Identification No.)
555 Seventeenth Street, Suite 1850, Denver, Colorado 80202
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [X]
If this form relates to the registration of class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates: _______________ (if applicable).
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange On Which
To Be So Registered Each Class Is to Be Registered
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Common Stock, $.10 par value New York Stock Exchange
Rights to Purchase Series B Preferred Stock New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None.
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
General
Tom Brown, Inc. (the "Company"), a Delaware corporation, is authorized
to issue 55,000,000 shares of common stock, $.10 par value per share. As of
April 15, 2002, 39,171,024 shares of common stock were outstanding.
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 the board of directors out of legally available
funds. The common stock is not entitled to any sinking fund, redemption or
conversion provisions. If the Company liquidates, dissolves or winds up its
business, the holders of common stock will be entitled to share ratably in the
Company's net assets remaining after the payment of all creditors and the
liquidation preferences of any preferred stock.
The common stock is currently quoted on the Nasdaq National Market
under the symbol TMBR, but the Company has applied for listing the common stock
on the New York Stock Exchange.
The Company has never paid any cash dividends and does not intend to
pay any cash dividends on the common stock in the foreseeable future.
The Company's First Amended and Restated Rights Agreement, dated as of
March 1, 2001, provides that a preferred share purchase right is associated with
each share of common stock. A discussion of the preferred share purchase rights
follows below under the caption "Anti-Takeover Matters - Stockholder Rights
Plan".
The transfer agent and registrar for the common stock is Equiserve
Trust Company, N.A.
Anti-Takeover Matters
Certificate of Incorporation and Bylaws. The Company's certificate of
incorporation and bylaws contain provisions that may have the effect of
delaying, deferring or preventing a change in control of the Company. These
provisions, among other things, provide for noncumulative voting in the election
of directors, impose certain procedural requirements on stockholders who wish to
make nominations for the election of directors or propose other
actions at stockholders' meetings and two-thirds voting requirements for the
amendment of certain provisions of the bylaws.
In addition, the Company's certificate of incorporation authorizes the
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 the 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 the Company, including transactions that
otherwise could involve payment of a premium over prevailing market prices to
holders of common stock.
Stockholder Rights Plan. On March 1, 1991, the Board of Directors of
the Company approved and adopted a rights agreement and declared a dividend of
one preferred share purchase right (a "Right") for each outstanding share of
common stock, $. 10 par value (the "Common Shares"), of the Company. The
dividend was paid on March 15, 1991 to the shareholders of record on that date.
After approval by the Board of Directors of the Company on February 22,
2001, the Company amended and restated the initial rights agreement on March 1,
2001 in order to, among other things, (1) increase the exercise price, (2)
reduce the ownership threshold for a person to become an "Acquiring Person" (as
described below) and (3) extend the Final Expiration Date of the Rights. The
description and terms of the Rights are set forth in the initial rights
agreement, dated as of March 5, 1991, as amended and restated by the First
Amended and Restated Rights Agreement (the "Rights Agreement"), dated as of
March 1, 2001, between the Company and EquiServe Trust Company, N.A. (as
successor to American Stock Transfer & Trust Company of New York, as Rights
Agent) (the "Rights Agent"). As of March 1, 2001, each Right entitles the
registered holder to purchase from the Company one-hundredth of a share of
Series B Preferred Stock, $ .10 par value (the "Preferred Shares"), of the
Company at a price of $120 per one one-hundredth of a Preferred Share (the
"Purchase Price"), subject to adjustment.
ACQUIRING PERSON THRESHOLD AND DISTRIBUTION DATE. Until the earlier to
occur of (i) 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 the outstanding Common Shares (an "Acquiring Person"), subject to
certain exceptions set forth in the Rights Agreement, and (ii) 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 such outstanding Common Shares
(the earlier of such dates being called the "Distribution Date"), the Rights
will be evidenced, with respect to any of the Common Shares outstanding as of
March 15, 1991, by the certificates representing such Common Shares with a copy
of the Summary of Rights attached thereto.
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The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Share certificates issued after March 15, 1991 upon transfer or new
issuance of the Common Shares will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Shares, even without such notation or a copy of the Summary of Rights
being attached thereto, will also constitute the transfer of the Rights
associated with the Common Shares represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of record of the
Common Shares as of the close of business on the Distribution Date and such
separate Right Certificates alone will thereafter evidence the Rights.
FINAL EXPIRATION DATE. The Rights are not exercisable until the
Distribution Date. The Rights will expire on March 1, 2011 (the "Final
Expiration Date"), unless the Final Expiration Date is extended or unless
earlier redeemed by the Company as described below.
DESCRIPTION OF PREFERRED SHARES. 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
the Common Shares. 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 Common Share. Each Preferred Share will have one hundred
votes, voting together with the Common Shares. Finally, in the event of any
merger, consolidation or other transaction in which Common Shares are exchanged,
each Preferred Share will be entitled to receive 100 times the amount received
per Common Share.
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
Common Share.
PURCHASE PRICE ADJUSTMENTS. The Purchase Price payable, 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 (i) in the event
of a stock dividend on, or a subdivision, combination or reclassification of,
the Preferred Shares, (ii) upon the grant to holders of the Preferred Shares of
certain rights or warrants to subscribe for Preferred Shares at a price, or
securities convertible into Preferred Shares with a conversion price, less than
the current market price of the Preferred Shares or (iii) upon the distribution
to holders of the Preferred Shares of evidences of indebtedness or assets
(excluding regular periodic cash dividends out of earnings or retained earnings
or dividends payable in Preferred Shares) or of subscription rights or warrants
(other than those referred to above).
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If, prior to the Distribution Date, the Company declares or pays a
dividend on the Common Shares payable in Common Shares or effects a subdivision
or combination of the Common Shares, the number of one one-hundredths of a
Preferred Share for which a Right is exercisable and the number of Rights
outstanding will be appropriately adjusted.
ANTIDILUTION ADJUSTMENTS UPON THE OCCURRENCE OF CERTAIN MERGERS. If,
after any person becomes an Acquiring Person, the Company were acquired in a
merger or other business combination transaction or more than 50% of its
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.
ANTIDILUTION ADJUSTMENTS AFTER A PERSON BECOMES AN ACQUIRING PERSON. 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 Common Shares 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.
EXCHANGE PROVISION. At anytime after a person has become an Acquiring
Person and the Acquiring Person owns less than 50% of the Company's voting
shares then outstanding, the Board of Directors would have the option to issue
Common Shares 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.
REDEMPTION. At any time prior to a person becoming an Acquiring Person,
the Board of Directors of the Company may redeem the Rights in whole, but not in
part, at a price of $.01 per Right subject to adjustment (the "Redemption
Price"). Immediately upon the action of the 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.
AMENDMENTS. The terms of the Rights may be amended by the Board of
Directors of the Company 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 the Board of Directors of the Company solely in
order (i) to cure any ambiguity, (ii) to correct or supplement any defective or
otherwise inconsistent provision in the Rights Agreement, (iii) subject to
certain restrictions, to shorten or lengthen any time period or (iv) to
otherwise change or supplement the Rights Agreement in a manner that does not
adversely affect the
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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 Agreement 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.
MISCELLANEOUS. With certain exceptions, no adjustment in the Purchase
Price will be required until adjustments which were not made equal, on a
cumulative basis, at least 1% of such Purchase Price. No fractional Preferred
Shares will be issued (other than fractions which are integral multiples of one
one-hundredth of a Preferred Share, which may, at the election of the Company,
be evidenced by depositary receipts) and in lieu thereof an adjustment in cash
will be made based on the market price of the Preferred Shares on the last
trading date prior to the date of exercise. Until a Right is exercised, the
holder thereof, as such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive dividends.
The Rights may tend to deter potential unsolicited tender offers or
other efforts to obtain control of the Company that are not approved by the
Board of Directors.
The foregoing description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the First Amended and Restated
Rights Agreement, which is an Exhibit to this Registration Statement and is
incorporated in this summary description by reference.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an exhibit to the Company's Form 10-k Report for the
fiscal year ended December 31, 2000. A copy of the Rights Agreement is available
free of charge from the Company.
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ITEM 2. EXHIBITS
3.1 Certificate of Incorporation, as amended, of the Registrant
(Incorporated by reference to Exhibit 3.1 to the Registrant's
Form S-8 Registration Statement, No. 333-51320, and filed with
the Securities and Exchange Commission on December 6, 2000).
3.2 Form of Certificate of Designation, Rights and Preferences
establishing the terms of the Registrant's Series B Preferred
Stock, $.10 par value (included as Exhibit A to the Rights
Agreement filed as Exhibit 4.2 hereto).
*3.3 First Amendment to Certificate of Designation, Rights and
Preferences of Series B Preferred Stock, $.10 par value, of
the Registrant.
3.4 Amended and Restated Bylaws of the Registrant, dated May 10,
2001 (Incorporated by reference to Exhibit 3.1 to the
Registrant's Form 10-Q Report for the quarterly period ended
March 31, 2001, and filed with the Securities and Exchange
Commission on May 14, 2001).
*4.1 Specimen certificate for shares of common stock, $.10 par
value.
4.2 Rights Agreement, dated as of March 5, 1991, between the
Company and American Stock Transfer & Trust Company of New
York, as Rights Agent, specifying the terms of the Rights,
which includes the form of Certificate of Designation, Rights
and Preferences of the Company's Series B Preferred Stock,
$.10 par value, as Exhibit A (Incorporated by reference to
Exhibit 1 to the Registrant's Form 8-A dated March 12, 1991,
and filed with the Securities and Exchange Commission on March
18, 1991).
4.3 First Amended and Restated Rights Agreement, dated as of March
1, 2001, between the Registrant and Equiserve Trust Company,
N.A., as Rights Agent, specifying the terms of the Rights,
which includes the form of Right Certificate as Exhibit A and
the form of Summary of Rights to Purchase Preferred Shares as
Exhibit B (Incorporated by reference to Exhibit 4.2 to the
Registrant's Form 10-K Report for the fiscal year ended
December 31, 2000, and filed with the Securities and Exchange
Commission on March 13, 2001).
4.4 Form of Right Certificate (included as Exhibit A to the First
Amended and Restated Rights Agreement filed as Exhibit 4.3
hereto).
4.5 Form of Summary of Rights to Purchase Preferred Shares
(included as Exhibit B to First Amended and Restated Rights
Agreement filed as Exhibit 4.3 hereto) which, together with
certificates representing the outstanding Common shares of the
Registrant, represent the Rights prior to the Distribution
Date.
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*Filed herewith.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
TOM BROWN, INC.
By: /s/ James D. Lightner
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James D. Lightner, President
April 26, 2002
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EXHIBIT INDEX
EXHIBITS
3.1 Certificate of Incorporation, as amended, of the Registrant
(Incorporated by reference to Exhibit 3.1 to the Registrant's
Form S-8 Registration Statement, No. 333-51320, and filed with
the Securities and Exchange Commission on December 6, 2000).
3.2 Form of Certificate of Designation, Rights and Preferences
establishing the terms of the Registrant's Series B Preferred
Stock, $.10 par value (included as Exhibit A to the Rights
Agreement filed as Exhibit 4.2 hereto).
*3.3 First Amendment to Certificate of Designation, Rights and
Preferences of Series B Preferred Stock, $.10 par value, of
the Registrant.
3.4 Amended and Restated Bylaws of the Registrant, dated May 10,
2001 (Incorporated by reference to Exhibit 3.1 to the
Registrant's Form 10-Q Report for the quarterly period ended
March 31, 2001, and filed with the Securities and Exchange
Commission on May 14, 2001).
*4.1 Specimen certificate for shares of common stock, $.10 par
value.
4.2 Rights Agreement, dated as of March 5, 1991, between the
Company and American Stock Transfer & Trust Company of New
York, as Rights Agent, specifying the terms of the Rights,
which includes the form of Certificate of Designation, Rights
and Preferences of the Company's Series B Preferred Stock,
$.10 par value, as Exhibit A (Incorporated by reference to
Exhibit 1 to the Registrant's Form 8-A dated March 12, 1991,
and filed with the Securities and Exchange Commission on March
18, 1991).
4.3 First Amended and Restated Rights Agreement, dated as of March
1, 2001, between the Registrant and Equiserve Trust Company,
N.A., as Rights Agent, specifying the terms of the Rights,
which includes the form of Right Certificate as Exhibit A and
the form of Summary of Rights to Purchase Preferred Shares as
Exhibit B (Incorporated by reference to Exhibit 4.2 to the
Registrant's Form 10-K Report for the fiscal year ended
December 31, 2000, and filed with the Securities and Exchange
Commission on March 13, 2001).
4.4 Form of Right Certificate (included as Exhibit A to the First
Amended and Restated Rights Agreement filed as Exhibit 4.3
hereto).
4.5 Form of Summary of Rights to Purchase Preferred Shares
(included as Exhibit B to First Amended and Restated Rights
Agreement filed as Exhibit 4.3 hereto) which, together with
certificates representing the outstanding Common shares of the
Registrant, represent the Rights prior to the Distribution
Date.
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*Filed herewith.