FindLaw | Find a Lawyer. Find Answers.
Are you a legal Professional?
My current location:
Los Angeles, CA
| Change location
| Featured Attorneys | |
Providing Exceptional Representation for Businesses. Call Today to Speak with Our Attorneys. 1-888-WHGCLaw (944-2529)
|
1-888-WHGCLaw
|
CERTIFICATE OF INCORPORATION
OF
TOM BROWN, INC.
FIRST: The name of the Corporation is Tom Brown, Inc.
SECOND: The address of its registered office in the State of Delaware is 1209
Orange Street, in the City of Wilmington, County of New Castle 19801. The name
of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business of the Corporation and the objects and
purposes and business thereof proposed to be transacted, promoted or carried on
are as follows:
To transact any and all lawful act or activity for which a corporation
may be incorporated under the laws of the State of Delaware.
FOURTH: The total number of shares of all classes that the Corporation shall
have authority to issue is 250,000,000, of which 50,000,000 shares shall be
Preferred Stock, par value $.10 per share, and 200,000,000 shares shall be
Common Stock, $.10 par value per share. All of such shares shall, upon
issuance thereof, be fully paid and nonassessable.
The designations, preferences, limitations and relative rights of the
shares of each class that the Corporation shall have authority to issue are as
follows:
A. Preferred Stock. The Board of Directors is hereby expressly
vested with the authority to adopt a resolution or resolutions
providing for the issue of authorized but unissued shares of
Preferred Stock, which shares may be issued from time to time
in one or more series and in such amounts as may be determined
by the Board of Directors in such resolution or resolutions.
The designations, preferences, limitations or relative rights
of the Preferred Stock and the qualifications, limitations or
restrictions, if any, of such preferences and/or rights
(collectively, the "Series Terms") may vary between series in
any and all respects and shall be such as are stated and
expressed in a resolution or resolutions providing for the
creation or revision of such Series Terms set forth in a
Certificate of Designations (a "Preferred Stock Series
Resolution") adopted by the Board of Directors; provided that
all shares of any one series of Preferred Stock so designated
by the Board of Directors shall be identical in all respects
except that shares of any one series issued at different times
may differ as to the dates from which dividends thereon may be
cumulative. The powers of the Board of Directors with respect
to the Series Terms of a particular series shall include, but
not be limited to, determination of the following:
<PAGE> 2
1. The right to receive dividends, if any, and the rate,
dates, terms and other conditions on which such dividends
shall be payable;
2. The nature of the dividend payable, if any, with respect
to shares of such series as cumulative, noncumulative or
partially cumulative;
3. The redemption rights of such series including the price
at and the terms and conditions on which such shares may
be redeemed;
4. The amount payable upon shares in the event of involuntary
liquidation;
5. The amount payable upon shares in the event of voluntary
liquidation;
6. Sinking fund provisions for the redemption or purchase of
shares;
7. The terms and conditions on which shares may be converted,
if the shares of any series are issued with the privilege
of conversion;
8. Voting rights, if any; and
9. Repurchase obligations of the Corporation with respect to
the shares of each series.
Any of the Series Terms, including voting rights, of any
series may be made dependent upon facts ascertainable outside
this Certificate of Incorporation and the Preferred Stock
Series Resolution, provided that the manner in which such
facts shall operate upon such Series Terms is clearly and
expressly set forth herein or in the Preferred Stock Series
Resolution.
Subject to the provisions of this Paragraph Fourth, shares of
one or more series of Preferred Stock may be authorized or
issued from time to time as shall be determined by and for
such consideration as shall be fixed by the Board of
Directors, in an aggregate amount not exceeding the total
number of shares of Preferred Stock authorized herein. Except
in respect of Series Terms fixed by the Board of Directors as
permitted hereby, all shares of Preferred Stock shall be of
equal rank and shall be identical.
B. Common Stock.
1. Dividends. Subject to the provisions of any Preferred
Stock Series Resolution, the Board of Directors may, in
its discretion, out of funds
2
<PAGE> 3
legally available for the payment of dividends and at such
times and in such manner as determined by the Board of
Directors, declare and pay dividends on the Common Stock
of the Corporation.
No dividend (other than a dividend in capital stock
ranking on a parity with the Common Stock or cash in lieu
of fractional shares with respect to such stock dividend)
shall be declared or paid on any share or shares of any
class of stock or series thereof ranking on a parity with
the Common Stock in respect of payment of dividends for
any dividend period unless there shall have been declared,
for the same dividend period, like proportionate dividends
on all shares of Common Stock then outstanding.
2. Liquidation. In the event of any liquidation, dissolution
or winding up of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the
debts and other liabilities of the Corporation and after
payment of any preferential amount due to the holders of
any other class or series of stock, the holders of the
Common Stock shall be entitled to receive ratably any or
all assets remaining to be paid or distributed.
3. Voting Rights. Subject to any special voting rights set
forth in any Preferred Stock Series Resolution, the
holders of the Common Stock of the Corporation shall be
entitled at all meetings of shareholders to one vote for
each share of such stock held by them.
C. Prior, Parity or Junior Stock. Whenever reference is made in
this Paragraph Fourth or in any Preferred Stock Series
Resolution to shares "ranking prior to" another class or
series of stock or "on a parity with" another class or series
of stock, such reference shall mean and include all other
shares of the Corporation in respect of which the rights of
the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation are given preference over, or rank on an equality
with, as the case may be, the rights of the holders of such
other class or series of stock. Whenever reference is made to
shares "ranking junior to" another class of stock, such
reference shall mean and include all shares of the Corporation
in respect of which the rights of the holders thereof as to
the payment of dividends and as to distributions in the event
of a voluntary or involuntary liquidation, dissolution or
winding up of the affairs of
3
<PAGE> 4
the Corporation are junior and subordinate to the rights of the
holders of such class or series of stock.
Except as otherwise provided herein or in any Preferred Stock
Series Resolution, each series of Preferred Stock ranks on a
parity with each other series and each series ranks prior to
the Common Stock. Common Stock ranks junior to the Preferred
Stock.
D. Liquidation. For the purposes of Section (2) of Section B of
this Paragraph Fourth and for the purpose of the comparable
sections of any Preferred Stock Series Resolution, the merger
or consolidation of the Corporation into or with any other
corporation, or the merger of any other corporation into it,
or the sale, lease or conveyance of all or substantially all
the assets, property or business of the Corporation, shall not
be deemed to be a liquidation, dissolution or winding up of
the Corporation.
E. Reservation and Retirement of Shares. The Corporation shall
at all times reserve and keep available, out of its authorized
but unissued shares of Common Stock or out of shares of Common
Stock held in its treasury, the full number of shares of
Common Stock into which all shares of any series of Preferred
Stock having conversion privileges from time to time
outstanding are convertible.
Unless otherwise provided in a Preferred Stock Series
Resolution with respect to a particular series of Preferred
Stock, all shares of Preferred Stock redeemed or acquired (as
a result of conversion or otherwise) shall be retired and
restored to the status of authorized but unissued shares.
F. Preemptive Rights.
1. No holder of shares of Preferred Stock or Common Stock of
the Corporation shall have any preemptive right to
purchase or subscribe for or receive any shares of any
class, or series thereof, of stock of the Corporation,
whether now or hereafter authorized, or any warrants,
options, bonds, debentures or other securities convertible
into, exchangeable for or carrying any right to purchase
any shares of any class, or series thereof, of stock; but
such additional shares of stock and such warrants,
options, bonds, debentures or other securities convertible
into, exchangeable for or carrying any right to purchase
any shares of any class, or series thereof, of stock may
be issued or disposed of by the Board of Directors to such
persons, and on such terms and for such lawful
4
<PAGE> 5
consideration, as in its discretion it shall deem
advisable.
2. The stockholders of the Corporation shall have no
rights to acquire the shares of Common Stock of the
Corporation now held in the treasury of the Corporation or
any shares of Common Stock of the Corporation hereafter
acquired by the Corporation and held as treasury shares.
G. No Cumulative Voting. Cumulative voting shall not be allowed
in the election of Directors or for any other purpose.
H. Repurchases of Capital Stock. The Corporation may, without
shareholder approval, purchase, directly or indirectly, its
own shares to the extent permitted by the Delaware General
Corporation Law.
FIFTH: The names and mailing address of the incorporators are:
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Thomas C. Brown 500 Empire Plaza
Midland, Texas 79701
Donald L. Evans 500 Empire Plaza
Midland, Texas 79701
</TABLE>
SIXTH: The name and mailing addresses of the persons who are to serve as
directors until the first annual meeting of stockholders or until their
successors are duly elected and qualified are:
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Thomas C. Brown 500 Empire Plaza
Midland, Texas 79701
Donald L. Evans 500 Empire Plaza
Midland, Texas 79701
Joe G. Roper 5609 West Industrial
Boulevard
Midland, Texas 79701
</TABLE>
SEVENTH: The Corporation is to have perpetual existence.
EIGHTH: The Board of Directors shall have power to enact, alter, amend and
repeal bylaws not inconsistent with the laws of the State of Delaware and this
Certificate of Incorporation.
NINTH: Limitation of Certain Liability of Directors. A director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of
5
<PAGE> 6
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. In addition to the circumstances in which a
director of the Corporation is not personally liable as set forth in the
preceding sentence, a director shall 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.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation with respect to any matter
occurring or any cause of action, suit or claim that, but for this Article
Ninth, would accrue or arise, prior to the time of such repeal or modification.
TENTH: Indemnification and Insurance.
A. Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in
any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she, or a person of whom he
or she is the legal representative, is or was a director or
officer, 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 of a partnership, joint
venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall
be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation
to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by such
person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided,
however, that, except as provided in paragraph (b) hereof, the
Corporation shall
6
<PAGE> 7
indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was
authorized by the board of directors of the Corporation. The
right to indemnification conferred in this Section shall be a
contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director
or officer in his or her capacity as a director of officer
(and not in any other capacity in which service was or is
rendered by such person while a director or officer,
including, without limitation, service to an employee benefit
plan) in advance of the final disposition of a proceeding,
shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified under this Paragraph A or otherwise. The
Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation
with the same scope and effect as the foregoing
indemnification of directors and officers.
B. Right of Claimant to Bring Suit. If a claim under Paragraph A
of this Paragraph Tenth is not paid in full by the Corporation
within ninety days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting
such claim. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it
permissible under the Delaware General Corporation Law for the
Corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel,
or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the
claimant is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors,
independent legal counsel, or its
7
<PAGE> 8
stockholders) that the claimant has not met such applicable
standard or conduct, shall be a defense to the action or
create a presumption that the claimant has not met the
applicable standard of conduct.
C. Non-Exclusivity of Rights. The right to indemnification and
the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred in this Paragraph
shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
D. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee
or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against
any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware
General Corporation Law.
ELEVENTH: The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is our act and deed and the facts herein
stated are true, and accordingly, have hereunto set our hands this 25th day of
February, 1987.
/s/ Thomas C. Brown
------------------------------
Thomas C. Brown
/s/ Donald L. Evans
------------------------------
Donald L. Evans
8
<PAGE> 9
TOM BROWN, INC.
CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RIGHTS OF SERIAL PREFERRED STOCK -
SERIES A NON-VOTING CONVERTIBLE 6%
CUMULATIVE PREFERRED STOCK
The undersigned, President and Secretary, respectively, of Tom Brown,
Inc., a Delaware corporation (the "Company"), certify that pursuant to
authority granted to and vested in the Board of Directors of the Company by
provisions of the Certificate of Incorporation of the Company, the Board of
Directors has duly adopted the following resolutions creating a series of
serial preferred stock of the Company designated as the Series A Non-Voting
Convertible 6% Cumulative Preferred Stock:
"RESOLVED, That the Board of Directors of Tom Brown, Inc. (the
"Company"), in the exercise of its best business judgment and
intending to act in full compliance with the applicable provisions of
the Company's Certificate of Incorporation and Bylaws and the
provisions of the Delaware General Corporation Law, hereby establishes
a series of Preferred Stock, par value $0.10 per share, of the Company
designated as "Series A Non-Voting Convertible 6% Cumulative Preferred
Stock" (the "Series A Shares"), and the number of Series A Shares
which the Company is authorized to issue from time to time shall be
22,000,000 and the designations, preferences, limitations, and
relative rights, and qualifications, limitations and restrictions, of
the Series A Shares shall be as follows:
1. Liquidation. The Series A Shares shall be preferred as to
assets over Junior Shares so that, in the event of the voluntary or
involuntary liquidation, dissolution or winding up of the Company, the
holders of the Series A Shares shall be entitled, in conjunction with
any provision then being made for the holders of Parity Shares, if
any, to have set apart for them or to be paid out of the assets of the
Company, after payment or provision for payment of the debts and other
liabilities of the Company and after provision for the holders of
Senior Shares, if any, but before any distribution is made to or set
apart for the holders of Junior Shares, an amount in cash equal to
$1.1364 per Series A Share (as adjusted for any stock split, reverse
stock split, stock dividend or similar event resulting in a change in
the Series A Shares) (the "Liquidation Value"), together with all
dividends accrued on such Series A Shares to the date of payment,
irrespective of whether such dividends were earned, declared or
legally available, and the holders of the Series A Shares shall not be
entitled to any further payment in connection with the voluntary or
involuntary liquidation, dissolution or winding up of the Company
<PAGE> 10
except as expressly provided for in this resolution. If, upon such
liquidation, dissolution or winding up of the Company, the assets of
the Company available for distribution to the holders of the Series A
Shares and the holders of Parity Shares, if any, shall be insufficient
to permit the distribution in full of the amounts receivable as
aforesaid by the holders of the Series A Shares and the amounts
receivable by the holders of Parity Shares, if any, then all such
assets of the Company shall be distributed ratably among the holders
of the Series A Shares and the holders of Parity Shares, if any, in
proportion to the amounts that each would have been entitled to
receive if such assets were sufficient to permit distribution in full
as aforesaid. Neither the consolidation or merger of the Company with
or into any corporation or corporations, nor the sale, lease or
transfer by the Company of all or any part of its assets, nor the
reduction of the authorized or issued shares of the Company of any
class, whether now or hereafter authorized, shall be deemed to be a
liquidation, dissolution or winding up of the Company for the purposes
of this Section 1. Written notice of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, setting the
payment date and the place where the amounts to be distributed shall
be paid and containing a reference to the conversion option granted by
Section 2 hereof, shall be given not less than thirty (30) days prior
to the payment date stated therein to the holders of record of the
Series A Shares at their respective addresses as the same shall appear
on the stock ledger of the Company.
2. Conversion.
(a) Subject to the terms and conditions of this Section 2,
the Series A Shares shall be convertible, at any time and from time to
time, at the option of the holder thereof, into Common Shares by
surrender of the certificate or certificates for the Series A Shares
to be so converted, duly endorsed, at the principal office of the
Company (or at such other place or places as may be designated by the
Company from time to time by notice sent to the holders of the Series
A Shares at their respective addresses as the same shall appear on the
stock ledger of the Company) or at the corporate trust office of any
transfer agent for the Series A Shares at any time during normal
business hours, together with notice that the holder elects to convert
such Series A Shares, or a stated number of such shares, in accordance
with the provisions of this Section 2. Such notice shall also state
the name or names (with addresses) in which the certificate or
certificates for Common Shares shall
2
<PAGE> 11
be issued. The number of Common Shares that any such holder shall
receive in return for each Series A Share converted by such holder
shall be computed by dividing (x) $1.1364 (as adjusted for any stock
split, reverse stock split, stock dividend or similar event resulting
in a change in the Series A Shares) by (y) the Conversion Price then
in effect.
(b) As promptly as practicable after exercise by any holder of
Series A Shares of such holder's option to convert Series A Shares
pursuant to the provisions of this Section 2, the Company shall
deliver or cause to be delivered to or upon the written order of such
holder one or more certificates representing the number of Common
Shares issuable upon such conversion, issued in such name or names as
such holder may direct, together with, if the certificate or
certificates surrendered evidence a greater number of Series A Shares
than the number of Series A Shares to be converted, one or more
certificates evidencing the Series A Shares not to be converted,
issued in such name or names as such holder may direct, and
accompanied by any cash in respect of any fractional interest in a
Common Share issuable upon such conversion. Each such conversion
shall be deemed to have been made immediately prior to the close of
business on the day the option to convert is exercised, and all rights
of the converting holder as the holder of the Series A Shares
surrendered for conversion shall cease at such time and the person or
persons in whose name or names the certificate or certificates for the
Common Shares issuable upon conversion are to be issued shall be
treated for all purposes as having become the record holder or holders
thereof at such time, except that, if the date of exercise of the
conversion option is a date when the stock ledger of the Company is
closed, such person or persons shall be deemed to have become the
holder or holders of such shares at the close of business on the next
succeeding date on which the stock ledger is open.
(c) The initial Conversion Price shall be $0.2841. The
Conversion Price shall be subject to adjustment as follows:
A. If the Company shall pay a dividend or make any
other distribution to all holders of the Common Shares payable
in Common Shares or shall subdivide its outstanding Common
Shares into a greater number of shares, the Conversion Price
in effect immediately prior thereto shall be proportionately
reduced, and if the Company shall combine its outstanding
3
<PAGE> 12
Common Shares into a smaller number of shares, the Conversion
Price in effect immediately prior thereto shall be
proportionately increased. An adjustment made pursuant to this
subdivision A shall become effective as of the date the record
is taken for such dividend or distribution or such subdivision
or combination or, if no record is taken, the date as of which
the record holders of Common Shares entitled to such payment
or other distribution or to participate in such subdivision or
combination are determined.
B. If on or after December 24, 1986, the Company
issues or sells, or in accordance with subdivision C below is
deemed to have issued or sold, any Common Shares (other than
(i) Common Shares issued or sold pursuant to the exercise of
options, warrants or rights outstanding as of December 24,
1986, (ii) by reason of the grant of options under the Tom
Brown, Inc. Incentive Stock Option Plan, to purchase up to a
total of 600,000 Common Shares (as adjusted pursuant to the
provisions of the plan designed to protect against dilution)
at a per share purchase price of not less than 100% of the
fair market value of a Common Share on the date of grant and
Common Shares issued or sold pursuant to the exercise of such
options, (iii) issuances or sales of Common Shares for which
an adjustment of the Conversion Price is made pursuant to
subdivision A above, or (iv) pursuant to transactions for
which appropriate provision is made pursuant to Section 2(d)
or 2(e) hereof) for a consideration per share less than the
Conversion Price or the Market Price, as the case may be, in
effect immediately prior to such time, then forthwith upon
such issuance or sale the Conversion Price shall be adjusted
to that Conversion Price determined by multiplying the
Conversion Price then in effect by a fraction (1) the
numerator of which shall be the number of Common Shares
outstanding immediately prior to the issuance or sale of such
additional Common Shares plus the number of Common Shares
which the aggregate consideration received by the Company for
the total number of Common Shares so issued or sold would
purchase at the Conversion Price or the Market Price, as the
case may be, in effect immediately before such
4
<PAGE> 13
adjustment, and (2) the denominator of which shall be the
number of Common Shares outstanding immediately after the
issuance or sale of such Common Shares.
C. For the purposes of determining the adjusted
Conversion Price under subdivision B above, the following
shall be applicable:
(i) If on or after December 24, 1986, the
Company in any manner grants any right or option to
subscribe for or to purchase Common Shares or any
stock or other securities convertible into or
exchangeable for Common Shares (such rights or
options being herein called "Options" and such
convertible or exchangeable stock or securities being
herein called "Convertible Securities") and the
lowest price per share for which any one Common Share
is issuable upon the exercise of any such Option or
upon conversion or exchange of any such Convertible
Security is less than the Conversion Price or the
Market Price, as the case may be, in effect
immediately prior to the time of the granting of such
Option, then the Conversion Price shall be adjusted
as provided in subdivision B above on the basis that
the maximum number of Common Shares issuable upon the
exercise of all such Options and upon conversion or
exchange of all such Convertible Securities shall be
deemed to have been issued as of the date of such
grant and the aggregate consideration for such
maximum number of additional Common Shares shall be
deemed to be the minimum consideration received or
receivable by the Company (if any) upon the issuance
of such additional Common Shares on the exercise of
the Options or the conversion or exchange of the
Convertible Securities. For the purposes of this
paragraph (i), the "lowest price per share for which
any one Common Share is issuable" shall be equal to
the sum of the lowest amounts of consideration (if
any) received or receivable by the Company with
respect to any one Common Share upon the granting of
the Option, upon the exercise of the Option, and upon
5
<PAGE> 14
the conversion or exchange of the Convertible
Security. No further adjustment of the Conversion
Price shall be made upon the actual issue of such
Common Shares or of such Convertible Securities upon
the exercise of such Option or upon the actual issue
of such Common Shares upon conversion or exchange of
such Convertible Securities.
(ii) If on or after December 24, 1986, the
Company in any manner issues or sells any Convertible
Security and the lowest price per share for which any
one Common Share is issuable upon conversion or
exchange thereof is less than the Conversion Price or
the Market Price, as the case may be, in effect
immediately prior to the time of such issuance or
sale, then the Conversion Price shall be adjusted as
provided in subdivision B above on the basis that the
maximum number of Common Shares issuable upon
conversion or exchange of all such Convertible
Securities shall be deemed to have been issued as of
the date of such issue or sale and the aggregate
consideration for such maximum number of additional
Common Shares shall be deemed to be the minimum
consideration received or receivable by the Company
(if any) upon the issuance of such additional Common
Shares or the issuance or sale of such Convertible
Securities and the conversion or exchange thereof.
For the purposes of this paragraph (ii), the "lowest
price per share for which any one Common Share is
issuable" shall be equal to the sum of the lowest
amounts of consideration (if any) received or
receivable by the Company with respect to any one
Common Share upon the issuance or sale of such
Convertible Security and upon the conversion or
exchange of such Convertible Security. No further
adjustment of the Conversion Price shall be made upon
the actual issue of such Common Shares upon
conversion or exchange of such Convertible Security,
and if any such issue or sale of such Convertible
Security is made upon exercise of any Options for
which adjustments of the
6
<PAGE> 15
Conversion Price had been or are to be made pursuant
to other provisions of this subdivision C, no further
adjustment of the Conversion Price shall be made by
reason of such issue or sale.
(iii) If the purchase price provided for in
any Option, the additional consideration (if any)
payable upon the issue, conversion or exchange of any
Convertible Security, or the rate at which any
Convertible Security is convertible into or
exchangeable for Common Shares changes at any time,
the Conversion Price in effect at the time of such
change shall be readjusted to the Conversion Price
that would have been in effect at such time had such
Option or Convertible Security originally provided
for such changed purchase price, changed additional
consideration or changed conversion rate, as the case
may be, at the time initially granted, issued or
sold; provided, however, that if such adjustment of
the Conversion Price shall result in an increase in
the Conversion Price then in effect, such adjustment
shall not be effective until thirty (30) days after
notice thereof has been given to all holders of the
Series A Shares at their respective addresses as the
same shall appear on the stock ledger of the Company.
(iv) Upon the expiration of any Option or the
termination of any right to convert or exchange any
Convertible Security without the exercise of any such
Option or right, the Conversion Price then in effect
shall be adjusted to the Conversion Price that would
have been in effect at the time of such expiration or
termination had such Option or Convertible Security,
to the extent outstanding immediately prior to such
expiration or termination, never been issued;
provided, however, that if the Company shall
accelerate the expiration of any Option or the
termination of any right to convert or exchange any
Convertible Security, such adjustment shall not be
effective until thirty (30)
7
<PAGE> 16
days after notice of such acceleration has been given
to all holders of the Series A Shares.
(v) If any Common Share, Option or
Convertible Security is issued or sold or deemed to
have been issued or sold for cash, the consideration
received therefor shall be deemed to be the amount
received by the Company therefor, without deduction
therefrom of any expenses incurred or any
underwriting commissions or concessions paid or
allowed by the Company in connection therewith.
Except as provided below in this subdivision (v), in
case any Common Share, Option or Convertible Security
is issued or sold or deemed to have been issued or
sold for a consideration other than cash, the amount
of the consideration other than cash received by the
Company shall be the fair value of such
consideration, determined in good faith by the Board
of Directors of the Company, except where such
consideration consists of securities, in which case
the amount of consideration received by the Company
shall be the Market Price thereof as of the date of
receipt, but in each such case without deduction of
any expenses incurred or any underwriting commission
or concessions paid or allowed by the Company in
connection therewith. In computing the Market Price
of a note or other obligation that is not listed on
any securities exchange or quoted in the NASDAQ
System or for which market quotations are not
otherwise readily available, the total consideration
to be received by the Company thereunder (including
interest) shall be discounted to present value at the
prime rate of interest of InterFirst Bank Dallas,
N.A., (or its successor in interest) in effect at the
time the note or obligation is deemed to have been
issued. If any Common Share, Option or Convertible
Security is issued in connection with any merger in
which the Company is the surviving corporation, the
amount of consideration therefor will be deemed to be
the fair value, as determined in good
8
<PAGE> 17
faith by the Board of Directors, of such portion of
the net assets and business of the nonsurviving
corporation as is attributable to such Common Share,
Option or Convertible Security, as the case may be.
If any Common Share, Option or Convertible Security
is issued in payment or satisfaction of any dividend
upon any class of stock other than Common Shares, the
amount of consideration therefor will be deemed to be
equal to the amount of such dividend so paid or
satisfied.
(vi) In case any Option is issued in
connection with the issue or sale of other securities
of the Company, together comprising one integrated
transaction in which no specific consideration is
allocated to such Option by the parties thereto, the
Option shall be deemed to have been granted for
consideration of $0.01.
(vii) If the purchase price provided for in
any option, warrant or right referred to in clause
(i) or (ii) of the parenthetical in subdivision B
above shall change at any time (other than by reason
of the provisions designed to protect against
dilution), then such change shall be deemed the
issuance of a new Option as of the date of such
change for the purposes of said subdivision B.
(d) If the Company shall distribute (pursuant to a dividend or
otherwise) to all holders of the Common Shares shares of its capital
stock (other than Common Shares), evidences of indebtedness, assets or
other property (excluding dividends payable in cash out of surplus
(determined in accordance with generally accepted accounting
principles, consistently applied)), or options, warrants or rights to
subscribe for or to purchase securities of the Company or other
property, then, in each such case, appropriate provision shall be made
(without any adjustment of the Conversion Price) to ensure that the
holder of each Series A Share then outstanding shall have the right to
receive, upon conversion of such Series A Share, with respect to the
Common Shares such holder shall receive upon conversion and in
addition thereto and without payment of any consideration therefor,
such capital stock, evidences of indebtedness, assets or other
property, or such options,
9
<PAGE> 18
warrants or rights, that such holder would have received upon such
distribution had such holder been the holder of record of the number
of Common Shares into which such Series A Share could have been
converted immediately prior to such distribution on the date on which
the record was taken for such distribution, or, if no record was
taken, the date as of which the record holders of Common Shares
entitled to such distribution were determined.
(e) In case of (i) any reclassification or change of the
outstanding Common Shares (other than a change in par value, or from
par value to no par value, or from no par value to par value, or a
change in the Common Shares as a result of a subdivision or
combination for which an adjustment of the Conversion Price is made
pursuant to subdivision A of Section 2(c), or (ii) any consolidation
or merger of the Company or any Subsidiary with or into another
entity, or (iii) any sale or conveyance to another corporation of the
assets of the Company as an entirety or substantially as an entirety,
as a result of which in any such case the holders of all the Common
Shares are entitled to receive (either directly or upon subsequent
liquidation pursuant to a plan of liquidation adopted in connection
with such transaction) stock or other securities or property with
respect to or in exchange for the Common Shares, then, in each such
case, without any adjustment of the Conversion Price, effective as of
the effective time of any such reclassification, change,
consolidation, merger, sale or conveyance, as the case may be, the
holder of each Series A Share then outstanding shall have the right to
receive or acquire, upon conversion of such Series A Share, in lieu of
or in addition to the Common Shares theretofore receivable upon such
conversion, the kind and amount of shares of stock and other
securities and property receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a holder of the number of
Common Shares into which such Series A Share could have been converted
immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance. The Company shall not effect any such
consolidation, merger, sale or conveyance unless prior to or
simultaneously with the consummation thereof the successor corporation
(if other than the Company) resulting from such consolidation or
merger or the entity purchasing such assets assumes by written
instrument (in form reasonably satisfactory to the holders of a
majority of the Series A Shares then outstanding) the obligation to
deliver to each such holder such shares of stock or other securities
or property as, in accordance with the foregoing provisions of this
subsection (e), such holder may be entitled to
10
<PAGE> 19
receive or acquire. In each such case, appropriate adjustments shall
be made in the application of the provisions of this Section 2 with
respect to the rights and interests thereafter of the holders of the
Series A Shares, to the end that the provisions of this Section 2
shall thereafter be applicable, as nearly as reasonably may be, to the
stock or other securities or property thereafter deliverable in lieu
of Common Shares upon the conversion of Series A Shares. The
provisions of this subsection (e) shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and
conveyances. If the occurrence of any one event shall give rise to an
adjustment under both this subsection (e) and Section 2(d) hereof,
then the terms of this subsection (e) shall control.
(f) If on or after December 24, 1986, the Company shall take
any action affecting the Common Shares, other than an action described
in subsections (c), (d) or (e) above, which, in the opinion of the
Board of Directors of the Company, would have a material adverse
effect upon the conversion option granted by this Section 2, the
Conversion Price shall be adjusted in such manner and at such time as
the Board may in good faith determine to be equitable in the
circumstances.
(g) Except as otherwise provided in this Section 2, if an
adjustment to the Conversion Price is required under more than one
subsection or subdivision of this Section 2, then the Conversion Price
shall be adjusted in the manner provided herein which will result in
the greater reduction in the Conversion Price.
(h) Any determination as to fair value or as to whether any
adjustment (including an adjustment of the Conversion Price) is
required hereunder, or as to the amount of any such adjustment, if
required, shall be binding upon the holders of the Series A Shares and
the Company if made in good faith by the Board of Directors of the
Company.
(i) Whenever the Conversion Price is adjusted as provided in
this Section 2, then, in each such case, the Company shall notify the
transfer agent, if any, for the Series A Shares and shall promptly
give to the holders of the Series A Shares who are holders of record
not more than fifteen (15) days before the date such notice is given,
a notice stating (i) the event requiring the adjustment, (ii) the
method by which the adjustment was calculated (including a description
of the basis on which the Board of Directors of the Company made any
determination hereunder), and (iii) the adjusted
11
<PAGE> 20
Conversion Price then and thereafter effective under this Section 2.
An affidavit of the transfer agent for the Series A Shares or of the
Secretary of the Company that any such notice has been given shall, in
the absence of fraud, be prima facie evidence of the facts stated
therein.
(j) In case at any time:
(i) the Board of Directors of the Company shall
declare a dividend (or any other distribution) on the Common
Shares; or
(ii) the Board of Directors of the Company shall
authorize the granting to all holders of the Common Shares of
options, warrants or rights to subscribe for or to purchase
any shares of stock of any class or of any other options,
warrants or rights; or
(iii) the Board of Directors of the Company shall
authorize any reclassification of the Common Shares, any
consolidation or merger of the Company or any Subsidiary with
or into another corporation, or the sale or conveyance of all
or a substantial portion of the assets of the Company; or
(iv) the Board of Directors of the Company shall
authorize the voluntary liquidation, dissolution or winding up
of the Company;
then the Company shall cause to be given to each holder of Series A
Shares, as promptly as possible but in any event at least twenty (20)
days (sixty (60) days in the case of any merger or consolidation to
which the Company or any Subsidiary is a party or the sale or
conveyance of all or a substantial portion of the Company's assets)
prior to the applicable date hereinafter specified, a notice stating
(1) the date on which a record is to be taken for the purposes of such
dividend, distribution or granting of options, warrants or rights, or,
if a record is not to be taken, the date as of which the holders of
Common Shares of record to be entitled to such dividend, distribution
or options, warrants or rights are to be determined, or (2) the date
on which such reclassification, consolidation, merger, sale,
conveyance, liquidation, dissolution or winding up is expected to
become effective, the terms of such transaction, and the date as of
which it is expected that holders of Common Shares of record shall be
entitled to exchange their
12
<PAGE> 21
Common Shares for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, conveyance,
liquidation, dissolution or winding up. Failure to give any such
notice or any defect therein shall not affect the validity of the
proceedings referred to in clauses (i), (ii), (iii) and (iv) above.
Nothing contained in this subsection (j) shall be deemed to adversely
affect the rights of the holders of the Series A Shares, under the
Delaware General Corporation Law or under the Certificate of
Incorporation of the Company, to be given notice of, or to vote upon,
a proposal to effect any transaction described in this subsection (j).
(k) No fractional Common Shares shall be issued upon the
conversion of Series A Shares. If more than one Series A Share shall
be surrendered for conversion at one time by the same holder, the
number of full Common Shares issuable upon conversion thereof shall be
computed on the basis of the aggregate number of Series A Shares so
surrendered. If any fractional interest in a Common Share would,
except for the provisions of this subsection (k), be deliverable upon
the conversion of any Series A Share or Shares, the Company shall, in
lieu of delivering the fractional share therefor, pay to the holder of
such surrendered Series A Share or Shares an amount in cash (computed
to the nearest cent) equal to such fractional interest multiplied by
the Market Price of a Common Share as of the close of business on the
date of conversion.
(l) The Company shall as promptly as practicable seek the
approval of its shareholders to cause its Certificate of Incorporation
to be amended to increase the number of authorized Common Shares to a
number sufficient to permit the conversion of all outstanding Series A
Shares from time to time as necessary under the circumstances. Upon
any issuance of Series A Shares, the Company shall reserve a number of
Common Shares sufficient to permit conversion of all of such Series A
Shares at such time; provided, however, that if and to the extent the
number of authorized Common Shares is not then sufficient to permit
conversion of all then issued Series A Shares, all then authorized but
unissued Common Shares which are not otherwise reserved shall be
reserved for purposes of permitting conversion of a portion of such
Series A Shares and after approval by the Company's shareholders of an
amendment to the Company's Certificate of Incorporation increasing the
number of authorized Common Shares, the Company shall reserve such
number of newly authorized Common Shares so as to permit, immediately
following such approval, the conversion of all such Series A Shares,
and thereafter the Company
13
<PAGE> 22
shall at all times have reserved and available out of its authorized
but unissued Common Shares solely for the purpose of issue upon
conversion of the Series A Shares, as provided in this Section 2, such
number of Common Shares as shall from time to time be sufficient to
permit the conversion of all outstanding Series A Shares. Upon the
issuance thereof upon conversion, all in accordance with the
provisions of this Section 2, such Common Shares shall be validly
issued, fully paid and nonassessable. Series A Shares converted
pursuant to this Section 2 shall be cancelled and shall not be
reissued. Upon any conversion, no adjustment shall be made for
dividends on the Common Shares payable to holders of record of Common
Shares on a date prior to the date of such conversion.
(m) The issuance of certificates for Common Shares shall be
made without charge for any tax in respect of such issuance. However,
if any such certificate is to be issued in the name other than that of
the holder of the converted Series A Shares, the Company shall not be
required to issue or deliver any certificate or certificates unless
(i) the holder has paid to the Company the amount of any tax that may
be payable in respect of any transfer involved in such issuance or
shall establish to the satisfaction of the Company that such tax has
been paid and (ii) the certificate for the Series A Shares surrendered
for conversion shall be duly endorsed or accompanied by a duly
executed stock power.
(n) If the issuance of any Common Shares upon the conversion
of Series A Shares requires approval of or by any securities exchange
before such shares may be issued, and the Company determines to secure
such approval, then the Company may suspend the conversion of all
Series A Shares for the period during which it is endeavoring to
secure such approval.
3. Voting Rights. The holders of the Series A Shares shall
not have, and shall not be entitled to exercise, exercise, any voting
rights with respect to the Series A Shares, except for such voting
rights which such holders may be entitled to exercise as holders of a
class or series of capital stock of the Company pursuant to, under or
in accordance with specific provisions of the Delaware General
Corporation Law.
4. Dividends.
(a) The holders of the Series A Shares shall be entitled to
receive out of funds legally available therefor, cumulative cash
dividends at the rate of 6% per annum of the Liquidation Value per
Series A Share
14
<PAGE> 23
($1.1364, as adjusted for any stock split, reverse stock split, stock
dividend or similar event resulting in a change in the Series A
Shares) (the "Dividend Rate"), payable on June 30 of each year in
which any Series A Shares shall be outstanding, commencing June 30,
1987, to the holders of record of such Series A Shares on the
respective dates fixed for such purpose by the Board of Directors of
the Company in advance of payment of each dividend. Dividends on each
Series A Share shall be cumulative from the date of issue thereof.
The first dividend payable with respect to any Series A Share shall be
computed by multiplying the Dividend Rate by a fraction of which (i)
the numerator shall be the number of days from the date of issue of
such Series A Share through the date as of which such first dividend
is payable, inclusive, and (ii) the denominator shall be 360.
(b) All other equity securities of the Company, including,
without limitation, the Senior Shares, if any, and the Junior Shares,
if any, shall rank junior to the Series A Shares in the payment of
dividends.
(c) To the extent any dividend accrues on a Series A Share,
and is not fully paid in the manner specified in Section 4(a) hereof,
such dividend (or, if paid in part, the unpaid portion thereof) shall
be added to the Liquidation Value of such Series A Share and shall
remain a part of such Liquidation Value until such dividend (or unpaid
portion thereof) is paid. In addition, any such unpaid dividend shall
not result in an adjustment to the Conversion Price, and any such
unpaid dividend shall no longer be payable to a holder of such Series
A Share upon the effective date of the conversion thereof into Common
Shares.
(d) If at any time the Company pays less than the total amount
of dividends then accrued and payable with respect to the Series A
Shares, such payment shall be distributed ratably among the holders of
the Series A Shares based upon the aggregate Liquidation Value of the
Series A Shares then held by each such holder.
(e) So long as any Series A Shares shall remain outstanding,
no dividend whatsoever (other than a dividend payable in Common
Shares) shall be declared or paid on any Junior Shares, nor shall any
Junior Shares be redeemed or purchased by the Company or any
Subsidiary thereof, nor shall any monies be paid to or made available
for a sinking fund for the redemption or purchase of any Junior
Shares, unless in each such instance full dividends on all outstanding
Series A
15
<PAGE> 24
Shares for all past dividend periods and the dividend on all
outstanding Series A Shares for the then current dividend period shall
have been paid and sufficient funds set apart therefor.
5. Definitions.
(a) As used herein, the following terms shall have the
meanings specified in the sections listed below:
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
Company Preamble
Conversion Price 2(c)
Convertible Securities 2(c)C(i)
Liquidation Value 1
Options 2(c)C(i)
Series A Shares Preamble
</TABLE>
(b) As used herein, the following terms shall have the
following meanings:
"Common Shares" shall mean and include the shares of Common
Stock, par value $0.10 per share, of the Company as constituted on the
date of the original issue of the Series A Shares and shall also
include any class of shares of capital stock of the Company thereafter
authorized that shall not be limited to a fixed sum or percentage in
respect of the right of the holders thereof to receive dividends or to
participate in the assets of the Company distributable to shareholders
upon any liquidation, dissolution or winding up of the Company;
provided, however, that the shares into which the Series A Shares
shall be convertible pursuant to Section 2 hereof shall mean and
include, and, as used in Section 2 hereof, the term "Common Shares"
shall mean and include, only the Common Stock, par value $0.10 per
share, of the Company as constituted on the date of the original issue
of the Series A Shares or (i) in the case of any reclassification,
change, consolidation, merger, sale or conveyance of the character
referred to in Section 2(e) hereof, the shares or other securities or
property deliverable in lieu thereof or (ii) in the case of any change
or reclassification of the outstanding Common Shares issuable upon
conversion of the Series A Shares as a result of a subdivision or
combination or consisting of a change in par value, or from par value
to no par value,
16
<PAGE> 25
or from no par value to par value, such Common Shares as so changed or
reclassified.
"Junior Shares" shall mean (i) Common Shares and (ii) all
those classes and series of preferred or special shares which, by the
terms of the Certificate of Incorporation of the Company, shall be
subordinate to the Series A Shares with respect to the right of the
holders thereof to participate in the assets of the Company
distributable to shareholders upon any liquidation, dissolution or
winding up of the Company.
"Market Price" of any security shall mean the average of the
closing prices of such security's sales on all securities exchanges on
which such security may at the time be listed, or, if there have been
no sales on any such exchange on any day, the average of the highest
bid and lowest asked prices on all such exchanges at the end of such
date, or, if on any day such security is not so listed, the average of
the representative bid and asked prices quoted in the NASDAQ System as
of 4:00 p.m., New York time, or, if on any day such security is not
quoted in the NASDAQ System, the average of the high and low bid and
asked prices on such day in the domestic over-the-counter market as
reported by the National Quotation Bureau, Inc., or any similar
successor organization, in each such case averaged over a period of 21
days consisting of the day as of which "Market Price" is being
determined and the 20 consecutive business days prior to such date.
If at any time such security is not listed on any securities exchange
or quoted in the NASDAQ System or the over-the-counter market, the
"Market Price" of such security shall be the fair value thereof
determined in good faith by the Board of Directors of the Company.
"Parity Shares" shall mean all those classes and series of
preferred or special shares which, by the terms of the Certificate of
Incorporation of the Company, shall be on a parity with the Series A
Shares with respect to the right of the holders thereof to participate
in the assets of the Company distributable to shareholders upon any
liquidation, dissolution or winding up of the Company.
"Senior Shares" shall mean all those classes and series of
preferred or special shares which, by the terms of the Certificate of
Incorporation of the Company, shall be senior to the Series A Shares
with respect to the right of the holders thereof to participate in the
assets of the Company distributable to shareholders upon any
liquidation, dissolution or winding up of the Company.
17
<PAGE> 26
"Subsidiary" shall mean any entity of which shares of stock or
other equity interests having at least a majority of the ordinary
voting power in electing the board of directors or similar governing
body are, at the time as of which any determination is being made,
owned by the Company either directly or indirectly through one or more
Subsidiaries.
8. Miscellaneous.
(a) If any other class or series of preferred or special
shares of the Company, whether ranking prior to or on a parity with or
junior to the Series A Shares as to dividends or assets, shall be
created, nothing herein shall prevent the holders of any such other
class or series of preferred or special shares from being given any
designations, preferences, limitations or relative rights authorized
by law and the Certificate of Incorporation of the Company, except as
otherwise expressly provided herein with respect to the foregoing
matters.
(b) All notices or other communications referred to herein,
except as otherwise expressly provided, shall be hand delivered or
given by registered or certified mail, return receipt requested,
postage prepaid, and shall be deemed to have been given when so hand
delivered or mailed.
DATED this 8th day of April, 1987.
/s/ Donald L. Evans
-------------------------------
Donald L. Evans, President
/s/ James M. Alsup
- - --------------------------------
James M. Alsup, Secretary
18
<PAGE> 27
CERTIFICATE OF MERGER
MERGING
TOM BROWN, INC.
A NEVADA CORPORATION
INTO
TOM BROWN, INC.
A DELAWARE CORPORATION
(Pursuant to Section 252 of the General Corporation
Law of the State of Delaware)
Tom Brown, Inc., a corporation organized under the laws of the State
of Delaware, does hereby certify that:
1. The names and states of incorporation of each of the
constituent corporations are:
Name of Corporation State
------------------- -----
Tom Brown, Inc. Nevada
Tom Brown, Inc. Delaware
2. A Plan and Agreement of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations in
accordance with Section 252(c) of the General Corporation Law of the State of
Delaware.
3. The name of the surviving corporation is Tom Brown, Inc., a
Delaware corporation.
4. The Certificate of Incorporation of Tom Brown, Inc., a
Delaware corporation, shall be the Certificate of Incorporation of the
surviving corporation.
5. The executed Plan and Agreement of Merger is on file at the
principal place of business of the surviving corporation as follows:
Tom Brown, Inc.
500 Empire Plaza
Midland, Texas 79701
6. A copy of the Plan and Agreement of Merger will be furnished
by the surviving corporation on request and without cost, to any stockholder of
any constituent corporation.
7. The authorized capital stock of Tom Brown Inc., Nevada, is
150,000,000 shares, of which 100,000,000 shares are common stock and 50,000,000
shares are preferred stock.
<PAGE> 28
IN WITNESS WHEREOF, said Tom Brown, Inc., a Delaware corporation, has
caused this certificate to be signed by Donald L. Evans, its President, and
attested by James M. Alsup, its Secretary, this 9th day of April, 1987.
By: /s/ Donald L. Evans
-----------------------------------
Donald L. Evans, President
ATTEST:
/s/ James M. Alsup
- - ------------------------------
James M. Alsup, Secretary
THE STATE OF TEXAS )
)
COUNTY OF MIDLAND )
This instrument was acknowledged before me on April 9, 1987, by Donald
L. Evans, President of Tom Brown, Inc., a Delaware corporation, on behalf of
said Corporation.
/s/ Rita K. Turner
------------------------------------
Name Rita K. Turner
--------------------------------
Notary Public in and for
the State of Texas
My Commission Expires:
10/23/89
- - ------------------------
<PAGE> 29
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
TBI MANAGEMENT, INC.
INTO
TOM BROWN, INC.,
A DELAWARE CORPORATION
(Pursuant to Sections 253 of the
General Corporation Law of the State of Delaware)
TOM BROWN, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, does hereby
certify that:
1. Tom Brown, Inc. is the parent corporation of TBI Management,
Inc., a Texas corporation, and Tom Brown, Inc. owns 100% of the outstanding
shares of stock of TBI Management, Inc., and therefore is entitled to Merge TBI
Management, Inc. into Tom Brown, Inc. under the provisions of Section 253 of
the General Corporation Law of the State of Delaware.
2. The provision for making this Certificate of Ownership and
Merger is contained in the Tom Brown, Inc. Unanimous Consent of Directors,
attached hereto as Exhibit "A".
3. The names and state of incorporation of each of the
constituent corporations are:
Name of Corporation State
------------------- -----
TBI Management, Inc. Texas
Tom Brown, Inc. Delaware
4. The name of the surviving corporation is Tom Brown, Inc., a
Delaware corporation.
5. The principal place of business of the surviving corporation
is:
Tom Brown, Inc.
500 Empire Plaza
Midland, Texas 79701
Attn: Mr. Donald L. Evans
IN WITNESS WHEREOF, Tom Brown, Inc. has caused this Certificate of
Ownership and Merger to be signed on its behalf by its President and attested
by its Secretary this 25th day of April, 1988.
Attest: TOM BROWN, INC.
/s/ James M. Alsup By: /s/ Donald L. Evans
- - ------------------------- ------------------------------
James M. Alsup, Secretary Donald L. Evans, President
<PAGE> 30
EXHIBIT A
SPECIAL MEETING UNANIMOUS CONSENT
OF THE DIRECTORS OF TOM BROWN, INC.
PURSUANT TO SECTION 141(f) OF THE
GENERAL CORPORATION LAW OF
THE STATE OF DELAWARE
The undersigned, being all of the Directors of TOM BROWN, INC. (the
"Corporation"), and being entitled to vote upon the resolutions hereinafter set
forth, do hereby consent that the resolutions set forth below are deemed to be
adopted to the same extent and to have the same force and effect as if adopted
by unanimous consent in a formal meeting of the Board of Directors of the
Corporation duly called and held for the purpose of acting upon a proposal to
adopt such resolutions:
"RESOLVED, That the Corporation shall merge with its 100% owned
subsidiary corporation, TBI Management, Inc., a Texas corporation,
pursuant to the provisions of Section 253 of the General Corporation
Law of the State of Delaware and Articles 5.07B(2) and (3) and 5.16 of
the Business Corporation Act of the State of Texas.
"RESOLVED, That the officers of the Corporation shall be fully
authorized to take any actions necessary to accomplish the merger
between the Corporation and TBI Management, Inc.
"RESOLVED, That the Corporation shall be the surviving corporation in
such merger, and that TBI Management, Inc. shall cease to exist.
"RESOLVED, That such merger shall be effective as of April 25, 1988."
ADOPTED April 25, 1988.
/s/ Thomas C. Brown
-----------------------------------
Thomas C. Brown, Director
/s/ Donald L. Evans
-----------------------------------
Donald L. Evans, Director
/s/ Edward W. LeBaron, Jr.
-----------------------------------
Edward W. LeBaron, Jr., Director
/s/ Joe G. Roper
-----------------------------------
Joe G. Roper, Director
<PAGE> 31
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
GENERAL RESOURCES, INC.
INTO
TOM BROWN, INC.,
A DELAWARE CORPORATION
(Pursuant to Sections 253 of the
General Corporation Law of the State of Delaware)
TOM BROWN, INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, does hereby
certify that:
1. Tom Brown, Inc. is the parent corporation of General
Resources, Inc., a Texas corporation, and Tom Brown, Inc. owns 100% of the
outstanding shares of stock of General Resources, Inc., and therefore is
entitled to merge General Resources, Inc. into Tom Brown, Inc. under the
provisions of Section 253 of the General Corporation Law of the State of
Delaware.
2. The provision for making this Certificate of Ownership and
Merger is contained in the Tom Brown, Inc. Unanimous Consent of Directors,
attached hereto as Exhibit A.
3. The names and state of incorporation of each of the
constituent corporations are:
Name of Corporation State
------------------- -----
General Resources, Inc. Texas
Tom Brown, Inc. Delaware
4. The name of the surviving corporation is Tom Brown, Inc., a
Delaware corporation.
5. The principal place of business of the surviving corporation
is:
Tom Brown, Inc.
500 Empire Plaza
Midland, Texas 79701
Attn: Mr. Donald L. Evans
IN WITNESS WHEREOF, Tom Brown, Inc. has caused this Certificate of
Ownership and Merger to be signed on its behalf by its President and attested
by its Secretary this 25th day of April, 1988.
Attest: TOM BROWN, INC.
/s/ James M. Alsup By: /s/ Donald L. Evans
- - ------------------------- ----------------------------
James M. Alsup, Secretary Donald L. Evans, President
<PAGE> 32
EXHIBIT A
SPECIAL MEETING UNANIMOUS CONSENT
OF THE DIRECTORS OF TOM BROWN, INC.
PURSUANT TO SECTION 141(f) OF THE
GENERAL CORPORATION LAW OF
THE STATE OF DELAWARE
The undersigned, being all of the Directors of TOM BROWN, INC. (the
"Corporation"), and being entitled to vote upon the resolutions hereinafter set
forth, do hereby consent that the resolutions set forth below are deemed to be
adopted to the same extent and to have the same force and effect as if adopted
by unanimous consent in a formal meeting of the Board of Directors of the
Corporation duly called and held for the purpose of acting upon a proposal to
adopt such resolutions:
"RESOLVED, That the Corporation shall merge with its 100% owned
subsidiary corporation, General Resources, Inc., a Texas corporation,
pursuant to the provisions of Section 253 of the General Corporation
Law of the State of Delaware and Articles 5.07B(2) and (3) and 5.16 of
the Business Corporation Act of the State of Texas.
"RESOLVED, That the officers of the Corporation shall be fully
authorized to take any actions necessary to accomplish the merger
between the Corporation and General Resources, Inc.
"RESOLVED, That the Corporation shall be the surviving corporation in
such merger, and that General Resources, Inc. shall cease to exist.
"RESOLVED, That such merger shall be effective as of April 25, 1988."
ADOPTED April 25, 1988.
/s/ Thomas C. Brown
------------------------------------
Thomas C. Brown, Director
/s/ Donald L. Evans
------------------------------------
Donald L. Evans, Director
/s/ Edward W. LeBaron, Jr.
------------------------------------
Edward W. LeBaron, Jr., Director
/s/ Joe G. Roper
------------------------------------
Joe G. Roper, Director
<PAGE> 33
CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION
OF
TOM BROWN, INC.
Tom Brown, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation") does
hereby certify as follows:
FIRST: Pursuant to the provisions of the Delaware General Corporation
Law, the Board of Directors and the stockholders of the Corporation adopted an
amendment to the Certificate of Incorporation of the Corporation, which is set
forth in the following resolution in accordance with Section 242 of the
Delaware General Corporation Law, the purpose of which amendment is to effect a
one-for-twenty reverse stock split:
"RESOLVED, That the Certificate of Incorporation of the Corporation be
amended by changing Paragraph Fourth thereof, so that as amended, said
Paragraph Fourth shall read as follows:
FOURTH: The total number of shares of all classes that the
Corporation shall have authority to issue is 12,500,000, of
which 2,500,000 shares shall be Preferred Stock, par value
$.10 per share, and 10,000,000 shares shall be Common Stock,
$.10 par value per share. All of such shares shall, upon
issuance thereof, be fully paid and non-assessable.
The designations, preferences, limitations and relative rights
of the shares of each class that the Corporation shall have
authority to issue are as follows:
A. Preferred Stock. The Board of Directors is hereby
expressly vested with the authority to adopt a
resolution or resolutions providing for the issue of
authorized but unissued shares of Preferred Stock,
which shares may be issued from time to time in one
or more series and in such amounts as may be
determined by the Board of Directors in such
resolution or resolutions. The designations,
preferences, limitations or relative rights of the
Preferred Stock and the qualifications, limitations
or restrictions, if any, of such preferences and/or
rights (collectively, the "Series Terms") may vary
between series in any and all respects and shall be
such as are
<PAGE> 34
stated and expressed in a resolution or resolutions
providing for the creation or revision of such Series
Terms set forth in a Certificate of Designations (a
"Preferred Stock Series Resolution") adopted by the
Board of Directors; provided that all shares of any
one series of Preferred Stock so designated by the
Board of Directors shall be identical in all respects
except that shares of any one series issued at
different times may differ as to the dates from which
dividends thereon may be cumulative. The powers of
the Board of Directors with respect to the Series
Terms of a particular series shall include, but not
be limited to, determination of the following:
1. The right to receive dividends, if any, and
the rate, dates, terms and other conditions
on which such dividends shall be payable;
2. The nature of the dividend payable, if any,
with respect to shares of such series as
cumulative, non-cumulative or partially
cumulative;
3. The redemption rights of such series
including the price at and the terms and
conditions on which such shares may be
redeemed;
4. The amount payable upon shares in the event
of involuntary liquidation;
5. The amount payable upon shares in the event
of voluntary liquidation;
6. Sinking fund provisions for the redemption or
purchase of shares;
7. The terms and conditions on which shares may
be converted, if the shares of any series are
issued with the privilege of conversion;
8. Voting rights, if any; and
2
<PAGE> 35
9. Repurchase obligations of the Corporation
with respect to the shares of each series.
Any of the Series Terms, including voting rights, of
any series may be made dependent upon facts
ascertainable outside this Certificate of
Incorporation and the Preferred Stock Series
Resolution, provided that the manner in which such
facts shall operate upon such Series Terms is clearly
and expressly set forth herein or in the Preferred
Stock Series Resolution.
Subject to the provisions of this Paragraph Fourth,
shares of one or more series of Preferred Stock may
be authorized or issued from time to time as shall be
determined by and for such consideration as shall be
fixed by the Board of Directors, in an aggregate
amount not exceeding the total number of shares of
Preferred Stock authorized herein. Except in respect
of Series Terms fixed by the Board of Directors as
permitted hereby, all shares of Preferred Stock shall
be of equal rank and shall be identical.
B. Common Stock.
1. Dividends. Subject to the provisions of any
Preferred Stock Series Resolution, the Board
of Directors may, in its discretion, out of
funds legally available for the payment of
dividends and at such times and in such
manner as determined by the Board of
Directors, declare and pay dividends on the
Common Stock of the Corporation.
No dividend (other than a dividend in capital
stock ranking on a parity with the Common
Stock or cash in lieu of fractional shares
with respect to such stock dividend) shall be
declared or paid on any share or shares of
any class of stock or series thereof ranking
on a
3
<PAGE> 36
parity with the Common Stock in respect of
payment of dividends for any dividend period
unless there shall have been declared, for the
same dividend period, like proportionate
dividends on all shares of Common Stock then
outstanding.
2. Liquidation. In the event of any
liquidation, dissolution or winding up of the
Corporation, whether voluntary or
involuntary, after payment or provision for
payment of the debts and other liabilities of
the Corporation and after payment of any
preferential amount due to the holders of any
other class or series of stock, the holders
of the Common Stock shall be entitled to
receive ratably any or all assets remaining
to be paid or distributed.
3. Voting Rights. Subject to any special voting
rights set forth in any Preferred Stock
Series Resolution, the holders of the Common
Stock of the Corporation shall be entitled at
all meetings of shareholders to one vote for
each share of such stock held by them.
C. Prior, Parity or Junior Stock. Whenever reference is
made in this Paragraph Fourth or in any Preferred
Stock Series Resolution to shares "ranking prior to"
another class or series of stock or "on a parity
with" another class or series of stock, such
reference shall mean and include all other shares of
the Corporation in respect of which the rights of the
holders thereof as to the payment of dividends or as
to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of
the affairs of the Corporation are given preference
over, or rank on an equality with, as the case may
be, the rights of the holders of such other class or
series of stock. Whenever reference is made to
shares "ranking junior to" another class of stock,
such
4
<PAGE> 37
reference shall mean and include all shares of the
Corporation in respect of which the rights of the
holders thereof as to the payment of dividends and as
to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of
the affairs of the Corporation are junior and
subordinate to the rights of the holders of such
class or series of stock.
Except as otherwise provided herein or in any
Preferred Stock Series Resolution, each series of
Preferred Stock ranks on a parity with each other
series and each series ranks prior to the Common
Stock. Common Stock ranks junior to the Preferred
Stock.
D. Liquidation. For the purposes of Section (2) of
Section B of this Paragraph Fourth and for the
purpose of the comparable sections of any Preferred
Stock Series Resolution, the merger or consolidation
of the Corporation into or with any other
corporation, or the merger of any other corporation
into it, or the sale, lease or conveyance of all or
substantially all the assets, property or business of
the Corporation, shall not be deemed to be a
liquidation, dissolution or winding up of the
Corporation.
E. Reservation and Retirement of Shares. The
Corporation shall at all times reserve and keep
available, out of its authorized but unissued shares
of Common Stock or out of shares of Common Stock held
in its treasury, the full number of shares of Common
Stock into which all shares of any series of
Preferred Stock having conversion privileges from
time to time outstanding are convertible.
Unless otherwise provided in a Preferred Stock Series
Resolution with respect to a particular series of
Preferred Stock, all shares of Preferred Stock
redeemed or acquired (as a result of conversion or
otherwise) shall be retired and restored to the
status of authorized but unissued shares.
5
<PAGE> 38
F. Preemptive Rights.
1. No holder of shares of Preferred Stock or
Common Stock of the Corporation shall have
any preemptive right to purchase or subscribe
for or receive any shares of any class, or
series thereof, of stock of the Corporation,
whether now or hereafter authorized, or any
warrants, options, bonds, debentures or other
securities convertible into, exchangeable for
or carrying any right to purchase any shares
of any class, or series thereof, of stock;
but such additional shares of stock and such
warrants, options, bonds, debentures or other
securities convertible into, exchangeable for
or carrying any right to purchase any shares
of any class, or series thereof, of stock may
be issued or disposed of by the Board of
Directors to such persons, and on such terms
and for such lawful consideration, as in its
discretion it shall deem advisable.
2. The stockholders of the Corporation shall
have no rights to acquire the shares of
Common Stock of the Corporation now held in
the treasury of the Corporation or any shares
of Common Stock of the Corporation hereafter
acquired by the Corporation and held as
treasury shares.
G. No Cumulative Voting. Cumulative voting shall not be
allowed in the election of Directors or for any other
purpose.
H. Repurchases of Capital Stock. The Corporation may,
without shareholder approval, purchase, directly or
indirectly, its own shares to the extent permitted by
the Delaware General Corporation Law."
SECOND: Pursuant to the provisions of the Delaware General
Corporation Law, the Board of Directors and the stockholders of the Corporation
adopted an amendment to the Certificate of
6
<PAGE> 39
Designations, Preferences and Rights of Serial Preferred Stock Series A
Non-Voting Convertible 6% Cumulative Preferred Stock filed April 9, 1987 with
the Delaware Secretary of State and authorizing the creation and issuance of an
aggregate of 22,000,000 shares of Series A Non-Voting Convertible 6% Cumulative
Preferred Stock, which is set forth in the following resolution in accordance
with Section 242 of the Delaware General Corporation Law, the purpose of which
amendment is to effect a one-for-twenty reverse stock split:
"RESOLVED, That the Certificate of Designations, Preferences and
Rights of Serial Preferred Stock - Series A Non-Voting Convertible.6%
Cumulative Preferred Stock filed with the Delaware Secretary of State
on April 9, 1987, be amended by changing the first paragraph of the
resolution creating the series of serial preferred stock designated as
the Series A Non-Voting Convertible 6% Cumulative Preferred Stock, so
that as amended, said paragraph shall read as follows:
"RESOLVED, That the Board of Directors of Tom Brown,
Inc. (the "Company"), in the exercise of its best
business judgment and intending to act in full
compliance with the applicable provisions of the
Company's Certificate of Incorporation and Bylaws and
the provisions of the Delaware General Corporation
Law, hereby establishes a series of Preferred Stock,
par value $0.10 per share, of the Company designated
as "Series A Non-Voting Convertible 6% Cumulative
Preferred Stock" (the "Series A Shares"), and the
number of Series A Shares which the Company is
authorized to issue from time to time shall be
1,100,000 and the designations, preferences,
limitations, and relative rights, and qualifications,
limitations and restrictions, of the Series A Shares
shall be as follows:"
"RESOLVED, That the Certificate of Designations, Preferences and
Rights of Serial Preferred Stock - Series A Non-Voting Convertible 6%
Cumulative Preferred Stock filed with the Delaware Secretary of State
on April 9, 1987, be further amended by changing the numbered
paragraph 1 thereof, so that as amended, said paragraph 1 shall read
as follows:
1. Liquidation. The Series A Shares shall be preferred as to
assets over Junior Shares so that, in the event of the
voluntary or involuntary liquidation, dissolution or
7
<PAGE> 40
winding up of the Company, the holders of the Series A
Shares shall be entitled, in conjunction with any
provision then being made for the holders of Parity
Shares, if any, to have set apart for them or to be paid
out of the assets of the Company, after payment or
provision for payment of the debts and other liabilities
of the Company and after provision for the holders of
Senior Shares, if any, but before any distribution is made
to or set apart for the holders of Junior Shares, an
amount in cash equal to $22.7280 per Series A Share (as
adjusted for any stock split, reverse stock split, stock
dividend or similar event resulting in a change in the
Series A Shares) (the "Liquidation Value"), together with
all dividends accrued on such Series A Shares to the date
of payment, irrespective of whether such dividends were
earned, declared or legally available, and the holders of
the Series A Shares shall not be entitled to any further
payment in connection with the voluntary or involuntary
liquidation, dissolution or winding up of the Company
except as expressly provided for in this resolution. If,
upon such liquidation, dissolution or winding up of the
Company, the assets of the Company available for
distribution to the holders of the Series A Shares and the
holders of Parity Shares, if any, shall be insufficient to
permit the distribution in full of the amounts receivable
as aforesaid by the holders of the Series A Shares and the
amounts receivable by the holders of Parity Shares, if
any, then all such assets of the Company shall be
distributed ratably among the holders of the Series A
Shares and the holders of Parity Shares, if any, in
proportion to the amounts that each would have been
entitled to receive if such assets were sufficient to
permit distribution in full as aforesaid. Neither the
consolidation or merger of the Company with or into any
corporation or corporations, nor the sale, lease or
transfer by the Company of all or any part of its assets,
nor the reduction of the authorized or issued shares of
the Company of any class, whether now or hereafter
authorized, shall be deemed to be a liquidation,
dissolution or winding up of the Company for the purposes
of this Section 1. Written notice of any voluntary or
involuntary
8
<PAGE> 41
liquidation, dissolution or winding up of the Company,
setting the payment date and the place where the amounts
to be distributed shall be paid and containing a reference
to the conversion option granted by Section 2 hereof,
shall be given not less than thirty (30) days prior to the
payment date stated therein to the holders of record of
the Series A Shares at their respective addresses as the
same shall appear on the stock ledger of the Company."
"RESOLVED, That the Certificate of Designations, Preferences and
Rights of Serial Preferred Stock - Series A Non-Voting Convertible 6%
Cumulative Preferred Stock filed with the Delaware Secretary of State
on April 9, 1987, be further amended by changing the numbered
paragraph 2(a) thereof, so that as amended, said paragraph 2(a) shall
read as follows:
2. Conversion.
(a) Subject to the terms and conditions of this
Section 2, the Series A Shares shall be convertible, at any
time and from time to time, at the option of the holder
thereof, into Common Shares by surrender of the certificate or
certificates for the Series A Shares to be so converted, duly
endorsed, at the principal office of the Company (or at such
other place or places as may be designated by the Company from
time to time by notice sent to the holders of the Series A
Shares at their respective addresses as the same shall appear
on the stock ledger of the Company) or at the corporate trust
office of any transfer agent for the Series A Shares at any
time during normal business hours, together with notice that
the holder elects to convert such Series A Shares, or a stated
number of such shares, in accordance with the provisions of
this Section 2. Such notice shall also state the name or
names (with addresses) in which the certificate or
certificates for Common Shares shall be issued. The number of
Common Shares that any such holder shall receive in return for
each Series A Share converted by such holder shall be computed
by dividing (x) $22.7280 (as adjusted for any stock split,
reverse stock split, stock dividend or similar event
9
<PAGE> 42
resulting in a change in the Series A Shares) by (y) the
Conversion Price then in effect."
"RESOLVED, That the Certificate of Designations, Preferences and
Rights of Serial Preferred Stock - Series A Non-Voting Convertible 6%
Cumulative Preferred Stock filed with the Delaware Secretary of State
on April 9, 1987, be further amended by changing the first sentence of
paragraph 2(c) thereof, so that as amended, said sentence shall read
as follows:
2.(c) The initial Conversion Price shall be $5.6820."
"RESOLVED, That the Certificate of Designations, Preferences and
Rights of Serial Preferred Stock - Series A Non-Voting Convertible 6%
Cumulative Preferred Stock filed with the Delaware Secretary of State
on April 9, 1987, be amended by changing the numbered paragraph 4(a)
thereof, so that as amended, said paragraph 4(a) shall read as
follows:
4. Dividends.
(a) The holders of the Series A Shares shall be
entitled to receive out of funds legally available therefor,
cumulative cash dividends at the rate of 6% per annum of the
Liquidation Value per Series A Share ($22.7280, as adjusted
for any stock split, reverse stock split, stock dividend or
similar event resulting in a change in the Series A Shares)
(the "Dividend Rate"), payable on June 30 of each year in
which any Series A Shares shall be outstanding, commencing
June 30, 1987, to the holders of record of such Series A
Shares on the respective dates fixed for such purpose by the
Board of Directors of the Company in advance of payment of
each dividend. Dividends on each Series A Share shall be
cumulative from the date of issue thereof. The first dividend
payable with respect to any Series A Share shall be computed
by multiplying the Dividend Rate by a fraction of which (i)
the numerator shall be the number of days from the date of
issue of such Series A Share through the date as of which such
first dividend is payable, inclusive, and (ii) the denominator
shall be 360."
10
<PAGE> 43
Upon the filing in the Office of the Secretary of State of Delaware of
this Certificate of Amendment, each twenty issued and outstanding shares of
common stock shall thereby and thereupon be combined into one share of common
stock and each twenty issued and outstanding shares of Series A Non-Voting
Convertible 6% Cumulative preferred stock shall thereupon be combined into one
share of Series A Non-Voting Convertible 6% Cumulative preferred stock. Each
certificate that theretofore represented shares of common stock prior to the
filing of this Certificate of Amendment shall thereafter represent the number
of shares of common stock into which the shares of common stock represented by
such certificate shall be combined, and each certificate that theretofore
represented shares of Series A Non-Voting Convertible 6% Cumulative preferred
stock prior to the filing of this Certificate of Amendment shall thereafter
represent the number of shares of Series A Non-Voting Convertible 6% Cumulative
preferred stock into which the shares of Series A Non-Voting Convertible 6%
Cumulative preferred stock represented by such certificate shall be combined.
To the extent a shareholder holds a number of shares of common stock not evenly
divisible by twenty, such shareholder will receive cash for each fractional
interest resulting from such division.
IN WITNESS WHEREOF, Tom Brown, Inc. has caused this Certificate of
Amendment to be signed by Thomas C. Brown, its Chairman of the Board of
Directors, and attested by Regina Neill, its Assistant Secretary, this 7th day
of September, 1988.
TOM BROWN, INC.
/s/ Thomas C. Brown
--------------------------------
Thomas C. Brown, Chairman of
the Board of Directors
ATTESTED:
/s/ Regina Neill
- - ----------------------------
Regina Neill, Assistant
Secretary
The undersigned Chairman of the Board of Directors of Tom Brown, Inc.,
being duly sworn, does verify that the foregoing instrument represents the act
and deed of Tom Brown, Inc. and that the facts stated in such instrument are
true.
/s/ Thomas C. Brown
----------------------------------
Thomas C. Brown, Chairman of
the Board of Directors
11
<PAGE> 44
THE STATE OF TEXAS )
)
COUNTY OF MIDLAND )
Before me, the undersigned authority, on this day personally appeared
THOMAS C. BROWN and REGINA NEILL, Chairman of the Board of Directors and
Assistant Secretary, respectively, of Tom Brown, Inc., a corporation formed
under the laws of the State of Delaware, known to me to be the individuals
whose names are subscribed to the foregoing instrument, and acknowledged and
swore to me that they each executed the same for the purposes and consideration
therein expressed and as the act and deed of said corporation and that the
facts stated in the foregoing instrument are true.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 7th day of September, 1988.
/s/ Rita K. Turner
--------------------------------
Name Rita K. Turner
----------------------------
Notary Public in and for
the State of Texas
Commission Expires:
10/23/89
- - --------------------
12
<PAGE> 45
CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION
OF
TOM BROWN, INC.
Tom Brown, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify as follows:
Pursuant to the provisions of the Delaware General Corporation Law,
the Board of Directors and th