\n General Resources, Inc. Texas<\/p>\n Tom Brown, Inc. Delaware
\n<\/c><\/s><\/caption>\n<\/table>\n
4. The name of the surviving corporation is Tom Brown, Inc., a Delaware
\ncorporation.<\/p>\n
5. The principal place of business of the surviving corporation is:<\/p>\n
Tom Brown, Inc.
\n 500 Empire Plaza
\n Midland, Texas 79701
\n Attn: Mr. Donald L. Evans<\/p>\n
IN WITNESS WHEREOF, Tom Brown, Inc. has caused this Certificate of
\nOwnership and Merger to be signed on its behalf by its President and attested by
\nits Secretary this 25th day of April, 1988.<\/p>\n
Attest: TOM BROWN, INC.<\/p>\n
\/s\/ James M. Alsup By: \/s\/ Donald L. Evans
\n————————– ————————————-
\nJames M. Alsup, Secretary Donald L. Evans, President<\/p>\n
31
\n EXHIBIT A<\/p>\n
SPECIAL MEETING UNANIMOUS CONSENT
\n OF THE DIRECTORS OF TOM BROWN, INC.
\n PURSUANT TO SECTION 141(f) OF THE
\n GENERAL CORPORATION LAW OF
\n THE STATE OF DELAWARE<\/p>\n
The undersigned, being all of the Directors of TOM BROWN, INC. (the
\n“Corporation”), and being entitled to vote upon the resolutions hereinafter set
\nforth, do hereby consent that the resolutions set forth below are deemed to be
\nadopted to the same extent and to have the same force and effect as if adopted
\nby unanimous consent in a formal meeting of the Board of Directors of the
\nCorporation duly called and held for the purpose of acting upon a proposal to
\nadopt such resolutions:<\/p>\n
“RESOLVED, That the Corporation shall merge with its 100% owned
\n subsidiary corporation, General Resources, Inc., a Texas corporation,
\n pursuant to the provisions of Section 253 of the General Corporation
\n Law of the State of Delaware and Articles 5.07B(2) and (3) and 5.16 of
\n the Business Corporation Act of the State of Texas.<\/p>\n
“RESOLVED, That the officers of the Corporation shall be fully
\n authorized to take any actions necessary to accomplish the merger
\n between the Corporation and General Resources, Inc.<\/p>\n
“RESOLVED, That the Corporation shall be the surviving corporation in
\n such merger, and that General Resources, Inc. shall cease to exist.<\/p>\n
“RESOLVED, That such merger shall be effective as of April 25, 1988.”<\/p>\n
ADOPTED April 25, 1988.<\/p>\n
\/s\/ Thomas C. Brown
\n ——————————–
\n Thomas C. Brown, Director<\/p>\n
\/s\/ Donald L. Evans
\n ——————————–
\n Donald L. Evans, Director<\/p>\n
\/s\/ Edward W. LeBaron, Jr.
\n ——————————–
\n Edward W. LeBaron, Jr., Director<\/p>\n
\/s\/ Joe G. Roper
\n ——————————–
\n Joe G. Roper, Director<\/p>\n
-2-
\n 32<\/p>\n
CERTIFICATE OF AMENDMENT TO THE
\n CERTIFICATE OF INCORPORATION
\n OF
\n TOM BROWN, INC.<\/p>\n
Tom Brown, Inc., a corporation organized and existing under the General
\nCorporation Law of the State of Delaware (the “Corporation”) does hereby certify
\nas follows:<\/p>\n
FIRST: Pursuant to the provisions of the Delaware General Corporation
\nLaw, the Board of Directors and the stockholders of the Corporation adopted an
\namendment to the Certificate of Incorporation of the Corporation, which is set
\nforth in the following resolution in accordance with Section 242 of the Delaware
\nGeneral Corporation Law, the purpose of which amendment is to effect a
\none-for-twenty reverse stock split:<\/p>\n
“RESOLVED, That the Certificate of Incorporation of the Corporation be
\n amended by changing Paragraph Fourth thereof, so that as amended, said
\n Paragraph Fourth shall read as follows:<\/p>\n
FOURTH: The total number of shares of all classes that the
\n Corporation shall have authority to issue is 12,500,000, of
\n which 2,500,000 shares shall be Preferred Stock, par value
\n $.10 per share, and 10,000,000 shares shall be Common Stock,
\n $.10 par value per share. All of such shares shall, upon
\n issuance thereof, be fully paid and nonassessable.<\/p>\n
The designations, preferences, limitations and relative rights
\n of the shares of each class that the Corporation shall have
\n authority to issue are as follows:<\/p>\n
A. Preferred Stock. The Board of Directors is hereby
\n expressly vested with the authority to adopt a
\n resolution or resolutions providing for the issue of
\n authorized but unissued shares of Preferred Stock,
\n which shares may be issued from time to time in one
\n or more series and in such amounts as may be
\n determined by the Board of Directors in such
\n resolution or resolutions. The designations,
\n preferences, limitations or relative rights of the
\n Preferred Stock and the qualifications, limitations
\n or restrictions, if any, of such preferences and\/or
\n rights (collectively, the “Series Terms”) may vary
\n between series in any and all respects and shall be
\n such as are stated and expressed in a resolution or
\n resolutions providing for the creation or revision of
\n such Series Terms set forth in a Certificate of<\/p>\n
33<\/p>\n
Designations (a “Preferred Stock Series Resolution”)
\n adopted by the Board of Directors; provided that all
\n shares of any one series of Preferred Stock so
\n designated by the Board of Directors shall be
\n identical in all respects except that shares of any
\n one series issued at different times may differ as to
\n the dates from which dividends thereon may be
\n cumulative. The powers of the Board of Directors with
\n respect to the Series Terms of a particular series
\n shall include, but not be limited to, determination
\n of the following:<\/p>\n
1. The right to receive dividends, if any, and
\n the rate, dates, terms and other conditions
\n on which such dividends shall be payable;<\/p>\n
2. The nature of the dividend payable, if any,
\n with respect to shares of such series as
\n cumulative, non-cumulative or partially
\n cumulative;<\/p>\n
3. The redemption rights of such series
\n including the price at and the terms and
\n conditions on which such shares may be
\n redeemed;<\/p>\n
4. The amount payable upon shares in the event
\n of involuntary liquidation;<\/p>\n
5. The amount payable upon shares in the event
\n of voluntary liquidation;<\/p>\n
6. Sinking fund provisions for the redemption
\n or purchase of shares;<\/p>\n
7. The terms and conditions on which shares may
\n be converted, if the shares of any series
\n are issued with the privilege of conversion;<\/p>\n
8. Voting rights, if any; and<\/p>\n
9. Repurchase obligations of the Corporation
\n with respect to the shares of each series.<\/p>\n
-2-
\n 34<\/p>\n
Any of the Series Terms, including voting rights, of
\n any series may be made dependent upon facts
\n ascertainable out-side this Certificate of
\n Incorporation and the Preferred Stock Series
\n Resolution, provided that the manner in which such
\n facts shall operate upon such Series Terms is clearly
\n and expressly set forth herein or in the Preferred
\n Stock Series Resolution.<\/p>\n
Subject to the provisions of this Paragraph Fourth,
\n shares of one or more series of Preferred Stock may
\n be authorized or issued from time to time as shall be
\n determined by and for such consideration as shall be
\n fixed by the Board of Directors, in an aggregate
\n amount not exceeding the total number of shares of
\n Preferred Stock authorized herein. Except in respect
\n of Series Terms fixed by the Board of Directors as
\n permitted hereby, all shares of Preferred Stock shall
\n be of equal rank and shall be identical.<\/p>\n
B. Common Stock.<\/p>\n
1. Dividends. Subject to the pro-visions of any
\n Preferred Stock Series Resolution, the Board
\n of Directors may, in its discretion, out of
\n funds legally available for the payment of
\n dividends and at such times and in such
\n manner as determined by the Board of
\n Directors, declare and pay dividends on the
\n Common Stock of the Corporation.<\/p>\n
No dividend (other than a dividend in
\n capital stock ranking on a parity with the
\n Common Stock or cash in lieu of fractional
\n shares with respect to such stock dividend)
\n shall be declared or paid on any share or
\n shares of any class of stock or series
\n thereof ranking on a parity with the Common
\n Stock in respect of payment of dividends for
\n any dividend period unless there shall have
\n been declared, for the same dividend period,
\n like proportionate dividends on all shares
\n of Common Stock then outstanding.<\/p>\n
-3-
\n 35<\/p>\n
2. Liquidation. In the event of any
\n liquidation, dissolution or winding up of
\n the Corporation, whether voluntary or
\n involuntary, after payment or provision for
\n payment of the debts and other liabilities
\n of the Corporation and after payment of any
\n preferential amount due to the holders of
\n any other class or series of stock, the
\n holders of the Common Stock shall be
\n entitled to receive ratably any or all
\n assets remaining to be paid or distributed.<\/p>\n
3. Voting Rights. Subject to any special voting
\n rights set forth in any Preferred Stock
\n Series Resolution, the holders of the Common
\n Stock of the Corporation shall be entitled
\n at all meetings of shareholders to one vote
\n for each share of such stock held by them.<\/p>\n
C. Prior, Parity or Junior Stock. Whenever reference is
\n made in this Paragraph Fourth or in any Preferred
\n Stock Series Resolution to shares “ranking prior to”
\n another class or series of stock or “on a parity
\n with” another class or series of stock, such
\n reference shall mean and include all other shares of
\n the Corporation in respect of which the rights of the
\n holders thereof as to the payment of dividends or as
\n to distributions in the event of a voluntary or
\n involuntary liquidation, dissolution or winding up of
\n the affairs of the Corporation are given preference
\n over, or rank on an equality with, as the case may
\n be, the rights of the holders of such other class or
\n series of stock. Whenever reference is made to shares
\n “ranking junior to” another class of stock, such
\n reference shall mean and include all shares of the
\n Corporation in respect of which the rights of the
\n holders thereof as to the payment of dividends and as
\n to distributions in the event of a voluntary or
\n involuntary liquidation, dissolution or winding up of
\n the affairs of the Corporation are junior and
\n subordinate to the rights of the holders of such
\n class or series of stock.<\/p>\n
-4-
\n 36<\/p>\n
Except as otherwise provided herein or in any
\n Preferred Stock Series Resolution, each series of
\n Preferred Stock ranks on a parity with each other
\n series and each series ranks prior to the Common
\n Stock. Common Stock ranks junior to the Preferred
\n Stock.<\/p>\n
D. Liquidation. For the purposes of Section (2) of
\n Section B of this Paragraph Fourth and for the
\n purpose of the comparable sections of any Preferred
\n Stock Series Resolution, the merger or consolidation
\n of the Corporation into or with any other
\n corporation, or the merger of any other corporation
\n into it, or the sale, lease or conveyance of all or
\n substantially all the assets, property or business of
\n the Corporation, shall not be deemed to be a
\n liquidation, dissolution or winding up of the
\n Corporation.<\/p>\n
E. Reservation and Retirement of Shares. The Corporation
\n shall at all times reserve and keep available, out of
\n its authorized but unissued shares of Common Stock or
\n out of shares of Common Stock held in its treasury,
\n the full number of shares of Common Stock into which
\n all shares of any series of Preferred Stock having
\n conversion privileges from time to time outstanding
\n are convertible.<\/p>\n
Unless otherwise provided in a Preferred Stock Series
\n Resolution with respect to a particular series of
\n Preferred Stock, all shares of Preferred Stock
\n redeemed or acquired (as a result of conversion or
\n otherwise) shall be retired and restored to the
\n status of authorized but unissued shares.<\/p>\n
F. Preemptive Rights.<\/p>\n
1. No holder of shares of Preferred Stock or
\n Common Stock of the Corporation shall have
\n any preemptive right to purchase or
\n subscribe for or receive any shares of any
\n class, or series thereof, of stock of the
\n Corporation, whether now or hereafter
\n authorized, or any warrants, options, bonds,
\n debentures or other securities <\/p>\n
-5-
\n 37<\/p>\n
convertible into, exchangeable for or
\n carrying any right to purchase any shares of
\n any class, or series thereof, of stock; but
\n such additional shares of stock and such
\n warrants, options, bonds, debentures or
\n other securities convertible into,
\n exchangeable for or carrying any right to
\n purchase any shares of any class, or series
\n thereof, of stock may be issued or disposed
\n of by the Board of Directors to such
\n persons, and on such terms and for such
\n lawful consideration, as in its discretion
\n it shall deem advisable.<\/p>\n
2. The stockholders of the Corporation shall
\n have no rights to acquire the shares of
\n Common Stock of the Corporation now held in
\n the treasury of the Corporation or any
\n shares of Common Stock of the Corporation
\n hereafter acquired by the Corporation and
\n held as treasury shares.<\/p>\n
G. No Cumulative Voting. Cumulative voting shall not be
\n allowed in the election of Directors or for any other
\n purpose.<\/p>\n
H. Repurchases of Capital Stock. The Corporation may,
\n without shareholder approval, purchase, directly or
\n indirectly, its own shares to the extent permitted by
\n the Delaware General Corporation Law.”<\/p>\n
SECOND: Pursuant to the provisions of the Delaware General Corporation
\nLaw, the Board of Directors and the stockholders of the Corporation adopted an
\namendment to the Certificate of Designations, Preferences and Rights of Serial
\nPreferred Stock Series A Non-Voting Convertible 6% Cumulative Preferred Stock
\nfiled April 9, 1987 with the Delaware Secretary of State and authorizing the
\ncreation and issuance of an aggregate of 22,000,000 shares of Series A
\nNon-Voting Convertible 6% Cumulative Preferred Stock, which is set forth in the
\nfollowing resolution in accordance with Section 242 of the Delaware General
\nCorporation Law, the purpose of which amendment is to effect a one-for-twenty
\nreverse stock split:<\/p>\n
“RESOLVED, That the Certificate of Designations, Preferences and Rights
\n of Serial Preferred Stock – Series A Non-Voting Convertible.6%
\n Cumulative Preferred Stock filed with the Delaware Secretary of State
\n on April 9, 1987, be amended by changing the <\/p>\n
-6-
\n 38<\/p>\n
first paragraph of the resolution creating the series of serial
\n preferred stock designated as the Series A Non-Voting Convertible 6%
\n Cumulative Preferred Stock, so that as amended, said paragraph shall
\n read as follows:<\/p>\n
“RESOLVED, That the Board of Directors of Tom Brown,
\n Inc. (the “Company”), in the exercise of its best
\n business judgment and intending to act in full
\n compliance with the applicable provisions of the
\n Company’s Certificate of Incorporation and Bylaws and
\n the provisions of the Delaware General Corporation
\n Law, hereby establishes a series of Preferred Stock,
\n par value $0.10 per share, of the Company designated
\n as “Series A Non-Voting Convertible 6% Cumulative
\n Preferred Stock” (the “Series A Shares”), and the
\n number of Series A Shares which the Company is
\n authorized to issue from time to time shall be
\n 1,100,000 and the designations, preferences,
\n limitations, and relative rights, and qualifications,
\n limitations and restrictions, of the Series A Shares
\n shall be as follows:”<\/p>\n
“RESOLVED, That the Certificate of Designations, Preferences and Rights
\n of Serial Preferred Stock – Series A Non-Voting Convertible 6%
\n Cumulative Preferred Stock filed with the Delaware Secretary of State
\n on April 9, 1987, be further amended by changing the numbered paragraph
\n 1 thereof, so that as amended, said paragraph 1 shall read as follows:<\/p>\n
1. Liquidation. The Series A Shares shall be preferred as to
\n assets over Junior Shares so that, in the event of the
\n voluntary or involuntary liquidation, dissolution or winding
\n up of the Company, the holders of the Series A Shares shall be
\n entitled, in conjunction with any provision then being made
\n for the holders of Parity Shares, if any, to have set apart
\n for them or to be paid out of the assets of the Company, after
\n payment or provision for payment of the debts and other
\n liabilities of the Company and after provision for the holders
\n of Senior Shares, if any, but before any distribution is made
\n to or set apart for the holders of Junior Shares, an amount in
\n cash equal to $22.7280 per Series A Share (as adjusted for any
\n stock split, reverse stock split, stock dividend or similar
\n event resulting in a change in the Series A Shares) (the
\n “Liquidation Value”), together with all dividends accrued on
\n such Series A <\/p>\n
-7-
\n 39<\/p>\n
Shares to the date of payment, irrespective of whether such
\n dividends were earned, declared or legally available, and the
\n holders of the Series A Shares shall not be entitled to any
\n further payment in connection with the voluntary or
\n involuntary liquidation, dissolution or winding up of the
\n Company except as expressly provided for in this resolution.
\n If, upon such liquidation, dissolution or winding up of the
\n Company, the assets of the Company available for distribution
\n to the holders of the Series A Shares and the holders of
\n Parity Shares, if any, shall be insufficient to permit the
\n distribution in full of the amounts receivable as aforesaid by
\n the holders of the Series A Shares and the amounts receivable
\n by the holders of Parity Shares, if any, then all such assets
\n of the Company shall be distributed ratably among the holders
\n of the Series A Shares and the holders of Parity Shares, if
\n any, in proportion to the amounts that each would have been
\n entitled to receive if such assets were sufficient to permit
\n distribution in full as aforesaid. Neither the consolidation
\n or merger of the Company with or into any corporation or
\n corporations, nor the sale, lease or transfer by the Company
\n of all or any part of its assets, nor the reduction of the
\n authorized or issued shares of the Company of any class,
\n whether now or hereafter authorized, shall be deemed to be a
\n liquidation, dissolution or winding up of the Company for the
\n purposes of this Section 1. Written notice of any voluntary or
\n involuntary liquidation, dissolution or winding up of the
\n Company, setting the payment date and the place where the
\n amounts to be distributed shall be paid and containing a
\n reference to the conversion option granted by Section 2
\n hereof, shall be given not less than thirty (30) days prior to
\n the payment date stated therein to the holders of record of
\n the Series A Shares at their respective addresses as the same
\n shall appear on the stock ledger of the Company.”<\/p>\n
“RESOLVED, That the Certificate of Designations, Preferences and Rights
\n of Serial Preferred Stock – Series A Non-Voting Convertible 6%
\n Cumulative Preferred Stock filed with the Delaware Secretary of State
\n on April 9, 1987, be further amended by changing the numbered paragraph
\n 2(a) thereof, so that as amended, said paragraph 2(a) shall read as
\n follows:<\/p>\n
-8-
\n 40<\/p>\n
2. Conversion.<\/p>\n
(a) Subject to the terms and conditions of this
\n Section 2, the Series A Shares shall be convertible, at any
\n time and from time to time, at the option of the holder
\n thereof, into Common Shares by surrender of the certificate or
\n certificates for the Series A Shares to be so converted, duly
\n endorsed, at the principal office of the Company (or at such
\n other place or places as may be designated by the Company from
\n time to time by notice sent to the holders of the Series A
\n Shares at their respective addresses as the same shall appear
\n on the stock ledger of the Company) or at the corporate trust
\n office of any transfer agent for the Series A Shares at any
\n time during normal business hours, together with notice that
\n the holder elects to convert such Series A Shares, or a stated
\n number of such shares, in accordance with the provisions of
\n this Section 2. Such notice shall also state the name or names
\n (with addresses) in which the certificate or certificates for
\n Common Shares shall be issued. The number of Common Shares
\n that any such holder shall receive in return for each Series A
\n Share converted by such holder shall be computed by dividing
\n (x) $22.7280 (as adjusted for any stock split, reverse stock
\n split, stock dividend or similar event resulting in a change
\n in the Series A Shares) by (y) the Conversion Price then in
\n effect.”<\/p>\n
“RESOLVED, That the Certificate of Designations, Preferences and Rights
\n of Serial Preferred Stock – Series A Non-Voting Convertible 6%
\n Cumulative Preferred Stock filed with the Delaware Secretary of State
\n on April 9, 1987, be further amended by changing the first sentence of
\n paragraph 2(c) thereof, so that as amended, said sentence shall read as
\n follows:<\/p>\n
2.(c) The initial Conversion Price shall be
\n $5.6820.”<\/p>\n
“RESOLVED, That the Certificate of Designations, Preferences and Rights
\n of Serial Preferred Stock – Series A Non-Voting Convertible 6%
\n Cumulative Preferred Stock filed with the Delaware Secretary of State
\n on April 9, 1987, be amended by changing the numbered paragraph 4(a)
\n thereof, so that as amended, said paragraph 4(a) shall read as follows:<\/p>\n
-9-
\n 41<\/p>\n
4. Dividends.<\/p>\n
(a) The holders of the Series A Shares shall be
\n entitled to receive out of funds legally available therefor,
\n cumulative cash dividends at the rate of 6% per annum of the
\n Liquidation Value per Series A Share ($22.7280, as adjusted
\n for any stock split, reverse stock split, stock dividend or
\n similar event resulting in a change in the Series A Shares)
\n (the “Dividend Rate”), payable on June 30 of each year in
\n which any Series A Shares shall be outstanding, commencing
\n June 30, 1987, to the holders of record of such Series A
\n Shares on the respective dates fixed for such purpose by the
\n Board of Directors of the Company in advance of payment of
\n each dividend. Dividends on each Series A Share shall be
\n cumulative from the date of issue thereof. The first dividend
\n payable with respect to any Series A Share shall be computed
\n by multiplying the Dividend Rate by a fraction of which (i)
\n the numerator shall be the number of days from the date of
\n issue of such Series A Share through the date as of which such
\n first dividend is payable, inclusive, and (ii) the denominator
\n shall be 360.”<\/p>\n
Upon the filing in the Office of the Secretary of State of Delaware of
\nthis Certificate of Amendment, each twenty issued and outstanding shares of
\ncommon stock shall thereby and thereupon be combined into one share of common
\nstock and each twenty issued and outstanding shares of Series A Non-Voting
\nConvertible 6% Cumulative preferred stock shall thereupon be combined into one
\nshare of Series A Non-Voting Convertible 6% Cumulative preferred stock. Each
\ncertificate that theretofore represented shares of common stock prior to the
\nfiling of this Certificate of Amendment shall thereafter represent the number of
\nshares of common stock into which the shares of common stock represented by such
\ncertificate shall be combined, and each certificate that theretofore represented
\nshares of Series A Non-Voting Convertible 6% Cumulative preferred stock prior to
\nthe filing of this Certificate of Amendment shall thereafter represent the
\nnumber of shares of Series A Non-Voting Convertible 6% Cumulative preferred
\nstock into which the shares of Series A Non-Voting Convertible 6% Cumulative
\npreferred stock represented by such certificate shall be combined. To the extent
\na shareholder holds a number of shares of common stock not evenly divisible by
\ntwenty, such shareholder will receive cash for each fractional interest
\nresulting from such division.<\/p>\n
IN WITNESS WHEREOF, Tom Brown, Inc. has caused this Certificate of
\nAmendment to be signed by Thomas C. Brown, its Chairman of the Board of
\nDirectors, and attested by Regina Neill, its Assistant Secretary, this 7th day
\nof September, 1988.<\/p>\n
-10-
\n 42<\/p>\n
TOM BROWN, INC.<\/p>\n
\/s\/ Thomas C. Brown
\n —————————-
\n Thomas C. Brown, Chairman of
\n the Board of Directors
\nATTESTED:<\/p>\n
\/s\/ Regina Neill
\n———————–
\nRegina Neill, Assistant
\n Secretary<\/p>\n
The undersigned Chairman of the Board of Directors of Tom Brown, Inc.,
\nbeing duly sworn, does verify that the foregoing instrument represents the act
\nand deed of Tom Brown, Inc. and that the facts stated in such instrument are
\ntrue.<\/p>\n
\/s\/ Thomas C. Brown
\n —————————-
\n Thomas C. Brown, Chairman of
\n the Board of Directors<\/p>\n
-11-
\n 43<\/p>\n
THE STATE OF TEXAS )
\n )
\nCOUNTY OF MIDLAND )<\/p>\n
Before me, the undersigned authority, on this day personally appeared
\nTHOMAS C. BROWN and REGINA NEILL, Chairman of the Board of Directors and
\nAssistant Secretary, respectively, of Tom Brown, Inc., a corporation formed
\nunder the laws of the State of Delaware, known to me to be the individuals whose
\nnames are subscribed to the foregoing instrument, and acknowledged and swore to
\nme that they each executed the same for the purposes and consideration therein
\nexpressed and as the act and deed of said corporation and that the facts stated
\nin the foregoing instrument are true.<\/p>\n
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 7th day of September, 1988.<\/p>\n
\/s\/ Rita K. Turner
\n ————————
\n Name Rita K. Turner
\n ——————–
\n Notary Public in and for
\n the State of Texas<\/p>\n
Commission Expires:<\/p>\n
10\/23\/89
\n—————-<\/p>\n
-12-
\n 44<\/p>\n
CERTIFICATE OF AMENDMENT TO THE
\n CERTIFICATE OF INCORPORATION
\n OF
\n TOM BROWN, INC.<\/p>\n
Tom Brown, Inc., a corporation organized and existing under the General
\nCorporation Law of the State of Delaware (the “Corporation”), does hereby
\ncertify as follows:<\/p>\n
Pursuant to the provisions of the Delaware General Corporation Law, the
\nBoard of Directors and the stockholders of the Corporation adopted an amendment
\nto the Certificate of Incorporation of the Corporation, which is set forth in
\nthe following resolution in accordance with Section 242 of the Delaware General
\nCorporation Law, the purpose of which amendment is to increase the number of
\nauthorized shares of Common Stock:<\/p>\n
“RESOLVED, That the Certificate of Incorporation of the Corporation be
\n amended by changing Paragraph Fourth thereof, so that as amended, said
\n Paragraph Fourth shall read as follows:<\/p>\n
FOURTH: The total number of shares of all classes that the
\n Corporation shall have authority to issue is 22,500,000, of
\n which 2,500,000 shares shall be Preferred Stock, par value
\n $.10 per share, and 20,000,000 shares shall be Common Stock,
\n $.10 par value per share. All of such shares shall, upon
\n issuance thereof, be fully paid and nonassessable.<\/p>\n
The designations, preferences, limitations and relative rights
\n of the shares of each class that the Corporation shall have
\n authority to issue are as follows:<\/p>\n
A. Preferred Stock. The Board of Directors is hereby
\n expressly vested with the authority to adopt a
\n resolution or resolutions providing for the issue of
\n authorized but unissued shares of Preferred Stock,
\n which shares may be issued from time to time in one
\n or more series and in such amounts as may be
\n determined by the Board of Directors in such
\n resolution or resolutions. The designations,
\n preferences, limitations or relative rights of the
\n Preferred Stock and the qualifications, limitations
\n or restrictions, if any, of such preferences and\/or
\n rights (collectively, the “Series Terms”) may vary
\n between series in any and all respects and shall be
\n such as are stated and expressed in a resolution or
\n resolutions providing for the creation or revision <\/p>\n
45<\/p>\n
of such Series Terms set forth in a Certificate of
\n Designations (a “Preferred Stock Series Resolution”)
\n adopted by the Board of Directors; provided that all
\n shares of any one series of Preferred Stock so
\n designated by the Board of Directors shall be
\n identical in all respects except that shares of any
\n one series issued at different times may differ as to
\n the dates from which dividends thereon may be
\n cumulative. The powers of the Board of Directors with
\n respect to the Series Terms of a particular series
\n shall include, but not be limited to, determination
\n of the following:<\/p>\n
1. The right to receive dividends, if any, and
\n the rate, dates, terms and other conditions
\n on which such dividends shall be payable;<\/p>\n
2. The nature of the dividend payable, if any,
\n with respect to shares of such series as
\n cumulative, non-cumulative or partially
\n cumulative;<\/p>\n
3. The redemption rights of such series
\n including the price at and the terms and
\n conditions on which such shares may be
\n redeemed;<\/p>\n
4. The amount payable upon shares in the event
\n of involuntary liquidation;<\/p>\n
5. The amount payable upon shares in the event
\n of voluntary liquidation;<\/p>\n
6. Sinking fund provisions for the redemption
\n or purchase of shares;<\/p>\n
7. The terms and conditions on which shares may
\n be converted, if the shares of any series
\n are issued with the privilege of conversion;<\/p>\n
8. Voting rights, if any; and<\/p>\n
9. Repurchase obligations of the Corporation
\n with respect to the shares of each series.<\/p>\n
-2-
\n 46<\/p>\n
Any of the Series Terms, including voting rights, of
\n any series may be made dependent upon facts
\n ascertainable outside this Certificate of
\n Incorporation and the Preferred Stock Series
\n Resolution, provided that the manner in which such
\n facts shall operate upon such Series Terms is clearly
\n and expressly set forth herein or in the Preferred
\n Stock Series Resolution.<\/p>\n
Subject to the provisions of this Paragraph Fourth,
\n shares of one or more series of Preferred Stock may
\n be authorized or issued from time to time as shall be
\n determined by and for such consideration as shall be
\n fixed by the Board of Directors, in an aggregate
\n amount not exceeding the total number of shares of
\n Preferred Stock authorized herein. Except in respect
\n of Series Terms fixed by the Board of Directors as
\n permitted hereby, all shares of Preferred Stock shall
\n be of equal rank and shall be identical.<\/p>\n
B. Common Stock.<\/p>\n
1. Dividends. Subject to the provisions of any
\n Preferred Stock Series Resolution, the Board
\n of Directors may, in its discretion, out of
\n funds legally available for the payment of
\n dividends and at such times and in such
\n manner as determined by the Board of
\n Directors, declare and pay dividends on the
\n Common Stock of the Corporation.<\/p>\n
No dividend (other than a dividend in
\n capital stock ranking on a parity with the
\n Common Stock or cash in lieu of fractional
\n shares with respect to such stock dividend)
\n shall be declared or paid on any share or
\n shares of any class of stock or series
\n thereof ranking on a parity with the Common
\n Stock in respect of payment of dividends for
\n any dividend period unless there shall have
\n been declared, for the same dividend period,
\n like proportionate dividends on all shares
\n of Common Stock then outstanding.<\/p>\n
-3-
\n 47<\/p>\n
2. Liquidation. In the event of any
\n liquidation, dissolution or winding up of
\n the Corporation, whether voluntary or
\n involuntary, after payment or provision for
\n payment of the debts and other liabilities
\n of the Corporation and after payment of any
\n preferential amount due to the holders of
\n any other class or series of stock, the
\n holders of the Common Stock shall be
\n entitled to receive ratably any or all
\n assets remaining to be paid or distributed.<\/p>\n
3. Voting Rights. Subject to any special voting
\n rights set forth in any Preferred Stock
\n Series Resolution, the holders of the Common
\n Stock of the Corporation shall be entitled
\n at all meetings of shareholders to one vote
\n for each share of such stock held by them.<\/p>\n
C. Prior, Parity or Junior Stock. Whenever reference is
\n made in this Paragraph Fourth or in any Preferred
\n Stock Series Resolution to shares “ranking prior to”
\n another class or series of stock or “on a parity
\n with” another class or series of stock, such
\n reference shall mean and include all other shares of
\n the Corporation in respect of which the rights of the
\n holders thereof as to the payment of dividends or as
\n to distributions in the event of a voluntary or
\n involuntary liquidation, dissolution or winding up of
\n the affairs of the Corporation are given preference
\n over, or rank on an equality with, as the case may
\n be, the rights of the holders of such other class or
\n series of stock. Whenever reference is made to shares
\n “ranking junior to” another class of stock, such
\n reference shall mean and include all shares of the
\n Corporation in respect of which the rights of the
\n holders thereof as to the payment of dividends and as
\n to distributions in the event of a voluntary or
\n involuntary liquidation, dissolution or winding up of
\n the affairs of the Corporation are junior and
\n subordinate to the rights of the holders of such
\n class or series of stock.<\/p>\n
-4-
\n 48<\/p>\n
D. Liquidation. For the purposes of Section (2) of
\n Section B of this Paragraph Fourth and for the
\n purpose of the comparable sections of any Preferred
\n Stock Series Resolution, the merger or consolidation
\n of the Corporation into or with any other
\n corporation, or the merger of any other corporation
\n into it, or the sale, lease or conveyance of all or
\n substantially all the assets, property or business of
\n the Corporation, shall not be deemed to be a
\n liquidation, dissolution or winding up of the
\n Corporation.<\/p>\n
E. Reservation and Retirement of Shares. The Corporation
\n shall at all times reserve and keep available, out of
\n its authorized but unissued shares of Common Stock or
\n out of shares of Common Stock held in its treasury,
\n the full number of shares of Common Stock into which
\n all shares of any series of Preferred Stock having
\n conversion privileges from time to time outstanding
\n are convertible.<\/p>\n
Unless otherwise provided in a Preferred Stock Series
\n Resolution with respect to a particular series of
\n Preferred Stock, all shares of Preferred Stock
\n redeemed or acquired (as a result of conversion or
\n otherwise) shall be retired and restored to the
\n status of authorized but unissued shares.<\/p>\n
F. Preemptive Rights.<\/p>\n
1. No holder of shares of Preferred Stock or
\n Common Stock of the Corporation shall have
\n any preemptive right to purchase or
\n subscribe for or receive any shares of any
\n class, or series thereof, of stock of the
\n Corporation, whether now or hereafter
\n authorized, or any warrants, options, bonds,
\n debentures or other securities convertible
\n into, exchangeable for or carrying any right
\n to <\/p>\n
-5-
\n 49<\/p>\n
purchase any shares of any class, or series
\n thereof, of stock; but such additional
\n shares of stock and such warrants, options,
\n bonds, debentures or other securities
\n convertible into, exchangeable for or
\n carrying any right to purchase any shares of
\n any class, or series thereof, of stock may
\n be issued or disposed of by the Board of
\n Directors to such persons, and on such terms
\n and for such lawful consideration, as in its
\n discretion it shall deem advisable.<\/p>\n
2. The stockholders of the Corporation shall
\n have no rights to acquire the shares of
\n Common Stock of the Corporation now held in
\n the treasury of the Corporation or any
\n shares of Common Stock of the Corporation
\n hereafter acquired by the Corporation and
\n held as treasury shares.<\/p>\n
G. No Cumulative Voting. Cumulative voting shall not be
\n allowed in the election of Directors or for any other
\n purpose.<\/p>\n
H. Repurchases of Capital Stock. The Corporation may,
\n without shareholder approval, purchase, directly or
\n indirectly, its own shares to the extent permitted by
\n the Delaware General Corporation Law.”<\/p>\n
IN WITNESS WHEREOF, Tom Brown, Inc. has caused this Certificate of
\nAmendment to be signed by Donald L. Evans, its Chairman of the Board of
\nDirectors, and attested by Kim Harris, its Assistant Secretary, this 1st day of
\nJune, 1990.<\/p>\n
TOM BROWN, INC.<\/p>\n
By: \/s\/ Donald L. Evans
\n ————————-
\n Donald L. Evans, Chairman
\n of the Board of Directors
\nATTESTED:<\/p>\n
\/s\/ Kim Harris
\n————————
\nKim Harris, Assistant
\n Secretary<\/p>\n
-6-
\n 50<\/p>\n
The undersigned Chairman of the Board of Directors of Tom Brown, Inc.,
\nbeing duly sworn, does verify that the foregoing instrument represents the act
\nand deed of Tom Brown, Inc. and that the facts stated in such instrument are
\ntrue.<\/p>\n
\/s\/ Donald L. Evans
\n —————————-
\n Donald L. Evans, Chairman of
\n the Board of Directors<\/p>\n
STATE OF TEXAS )
\n )
\nCOUNTY OF MIDLAND )<\/p>\n
Before me, the undersigned authority, on this day personally appeared
\nDONALD L. EVANS and KIM HARRIS, Chairman of the Board of Directors and Assistant
\nSecretary, respectively, of Tom Brown, Inc., a corporation formed under the laws
\nof the State of Delaware, known to me to be the individuals whose names are
\nsubscribed to the foregoing instrument, and acknowledged and swore to me that
\nthey each executed the same for the purposes and consideration therein expressed
\nand as the act and deed of said corporation and that the facts stated in the
\nforegoing instrument are true.<\/p>\n
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 1st day of June, 1990.<\/p>\n
My Commission Expires:
\n \/s\/ Carolyn Vannoy
\n —————————–
\n 10\/27\/92 Name: Carolyn Vannoy
\n————– ————————
\n Notary Public in and for
\n the State of Texas<\/p>\n
-7-
\n 51<\/p>\n
CERTIFICATE OF DESIGNATION,
\n RIGHTS AND PREFERENCES
\n of
\n SERIES B PREFERRED STOCK, $.10 PAR VALUE
\n of
\n TOM BROWN, INC.<\/p>\n
Tom Brown, Inc., a corporation organized and existing under and by
\nvirtue of the General Corporation Law of the State of Delaware, DOES HEREBY
\nCERTIFY:<\/p>\n
That at a meeting of the Board of Directors of Tom Brown, Inc. the
\nfollowing resolution, creating a series of three hundred thousand (300,000)
\nshares of Preferred Stock, designated as Series B Preferred Stock, was duly
\nadopted pursuant to the authority granted to and vested in the Board of
\nDirectors of this corporation in accordance with the provisions of its
\nCertificate of Incorporation, as amended:<\/p>\n
RESOLVED, that a series of Preferred Stock, $.10 par value, of
\n the corporation be, and it hereby is, created and that the designation
\n and amount thereof and the preferences and relative, participating,
\n optional and other special rights, and the qualifications, limitations
\n and restrictions thereof (in addition to the provisions set forth in
\n the Certificate of Incorporation, as amended, of the corporation, which
\n are applicable to the Preferred Stock of all classes and series) are as
\n follows:<\/p>\n
I. Designation and Amount. The shares of such series shall be
\n designated as the “Series B Preferred Stock” (the “Series B Preferred
\n Stock”) and the number of shares constituting such series shall be
\n three hundred thousand (300,000). Such number of shares may be
\n increased or decreased by resolution of the Board of Directors;
\n provided, that no decrease shall reduce the number of shares of Series
\n B Preferred Stock to a number less than that of the shares then
\n outstanding plus the number of shares issuable upon exercise of
\n outstanding rights, options or warrants or upon conversion of
\n outstanding securities issued by the corporation.<\/p>\n
II. Dividends and Distributions.<\/p>\n
(A) Subject to the prior and superior rights of the
\n holders of any shares of any series of Preferred Stock ranking
\n prior and superior to the shares of Series B Preferred Stock
\n with respect to dividends, the holders of shares of Series B
\n Preferred Stock, in preference to the holders of common stock,
\n $.10 par value, of the corporation (the “Common Stock”) and of
\n any other stock ranking junior (as to dividends) to Series B
\n Preferred Stock, shall be entitled to receive, when, as and if<\/p>\n
52<\/p>\n
declared by the Board of Directors out of funds legally
\n available for the purpose, cumulative quarterly dividends
\n payable in cash or in kind, as hereinafter provided, on the
\n last day of March, June, September and December in each year
\n (each such date being referred to herein as a “Quarterly
\n Dividend Payment Date”), commencing on the first Quarterly
\n Dividend Payment Date after the first issuance of a share or
\n fraction of a share of Series B Preferred Stock, in an amount
\n per share (rounded to the nearest cent) equal to the greater
\n of (a) $1.00 (payable in cash) or (b) subject to the provision
\n for adjustment hereinafter set forth, 100 times the aggregate
\n per share amount (payable in cash) of all cash dividends, and
\n 100 times the aggregate per share amount (payable in kind) of
\n all non_cash dividends or other distributions, other than a
\n dividend payable in shares of Common Stock (by
\n reclassification or otherwise), declared on the Common Stock
\n since the immediately preceding Quarterly Dividend Payment
\n Date or, with respect to the first Quarterly Dividend Payment
\n Date, since the first issuance of any share or fraction of a
\n share of Series B Preferred Stock. If the corporation shall at
\n any time declare or pay any dividend on Common Stock payable
\n in shares of Common Stock or effect a subdivision or
\n combination of the outstanding shares of Common Stock (by
\n reclassification or otherwise), into a greater or lesser
\n number of shares of Common Stock, then in each such case the
\n amount to which holders of Series B Preferred Stock were
\n entitled immediately prior to such event under clause (b) of
\n the preceding sentence shall be adjusted by multiplying such
\n amount by a fraction the numerator of which is the number of
\n shares of Common Stock outstanding immediately after such
\n event and the denominator of which is the number of shares of
\n Common Stock that was outstanding immediately prior to such
\n event.<\/p>\n
(B) The Corporation shall declare a dividend or
\n distribution on the Series B Preferred Stock as provided in
\n paragraph (A) of this Section immediately after it declares a
\n dividend or distribution on the Common Stock (other than a
\n dividend payable in shares of Common Stock); provided that, if
\n no dividend or distribution shall have been declared on the
\n Common Stock during the period between any Quarterly Dividend
\n Payment Date and the next subsequent Quarterly Dividend
\n Payment Date, a dividend of $1.00 per share on the Series B
\n Preferred Stock shall nevertheless accrue and be cumulative on
\n the outstanding shares of Series B Preferred Stock as provided
\n in paragraph (C) of this Section.<\/p>\n
-2-
\n 53<\/p>\n
(C) Dividends shall begin to accrue and be cumulative
\n on outstanding shares of Series B Preferred Stock from the
\n Quarterly Dividend Payment Date next preceding the date of
\n issue of such shares of Series B Preferred Stock, unless the
\n date of issue of such shares is prior to the record date for
\n the first Quarterly Dividend Payment Date, in which case
\n dividends on such shares shall begin to accrue from the date
\n of issue of such shares, or unless the date of issue is a
\n Quarterly Dividend Payment Date or is a date after the record
\n date for the determination of holders of shares of Series B
\n Preferred Stock entitled to receive a quarterly dividend and
\n before such Quarterly Dividend Payment Date, in either of
\n which events such dividends shall begin to accrue and be
\n cumulative from such Quarterly Dividend Payment Date. Accrued
\n but unpaid dividends shall not bear interest. Dividends paid
\n on the shares of Series B Preferred Stock in an amount less
\n than the total amount of such dividends at the time accrued
\n and payable on such shares shall be allocated pro rata on a
\n share by share basis among all such shares at the time
\n outstanding. The Board of Directors may fix a record date for
\n the determination of holders of shares of Series B Preferred
\n Stock entitled to receive a payment of a dividend or
\n distribution declared thereon, which record date shall be not
\n more than 60 days prior to the date fixed for the payment
\n thereof.<\/p>\n
III. Voting Rights. The holders of shares of Series B
\n Preferred Stock shall have the following voting rights:<\/p>\n
(A) Subject to the provision for adjustment
\n hereinafter set forth, each share of Series B Preferred Stock
\n shall entitle the holder thereof to 100 votes on all matters
\n submitted to a vote of the share-holders of the corporation.
\n If the corporation shall at any time declare or pay any
\n dividend on Common Stock payable in shares of Common Stock, or
\n effect a subdivision or combination of the outstanding shares
\n of Common Stock (by reclassification or otherwise) into a
\n greater or lesser number of shares of Common Stock, then in
\n each such case the number of votes per share to which holders
\n of shares of Series B Preferred Stock were entitled
\n immediately prior to such event shall be adjusted by
\n multiplying such number by a fraction the numerator of which
\n is the number of shares of Common Stock outstanding
\n immediately after such event and the denominator of which is
\n the number of shares of Common Stock that were outstanding
\n immediately prior to such event.<\/p>\n
-3-
\n 54<\/p>\n
(B) Except as otherwise provided in the Certificate
\n of Incorporation or by law, the holders of shares of Series B
\n Preferred Stock and the holders of shares of Common Stock
\n shall vote together as one class on all matters submitted to a
\n vote of shareholders of the corporation.<\/p>\n
IV. Certain Restrictions.<\/p>\n
(A) Whenever quarterly dividends or other dividends
\n or distributions payable on the Series B Preferred Stock as
\n provided in Section II are in arrears, thereafter and until
\n all accrued and unpaid dividends and distributions, whether or
\n not declared, on shares of Series B Preferred Stock
\n outstanding shall have been paid in full, the corporation
\n shall not:<\/p>\n
(i) declare or pay dividends on, make any
\n other distributions on, or redeem or purchase or
\n otherwise acquire for consideration any shares of
\n stock ranking junior (as to dividends) to the Series
\n B Preferred Stock;<\/p>\n
(ii) declare or pay dividends on or make any
\n other distributions on any shares of stock ranking on
\n a parity (as to dividends) with the Series B
\n Preferred Stock, except dividends paid ratably on the
\n Series B Preferred Stock and all such parity stock on
\n which dividends are payable or in arrears in
\n proportion to the total amounts to which the holders
\n of all such shares are then entitled; or<\/p>\n
(iii) purchase or otherwise acquire for
\n consideration any shares of Series B Preferred Stock,
\n or any shares of stock ranking on a parity (as to
\n dividends) with the Series B Preferred Stock, except
\n in accordance with a purchase offer made in writing
\n or by publication (as determined by the Board of
\n Directors) to all holders of such shares upon such
\n terms as the Board of Directors, after consideration
\n of the respective annual dividend rates and other
\n relative rights and preferences of the respective
\n series and classes, shall determine in good faith
\n will result in fair and equitable treatment among the
\n respective series or classes.<\/p>\n
-4-
\n 55<\/p>\n
(B) The corporation shall not permit any subsidiary
\n of the corporation to purchase or otherwise acquire for
\n consideration any shares of stock of the corporation unless
\n the corporation could, under paragraph (A) of this Section IV,
\n purchase or otherwise acquire such shares at such time and in
\n such manner.<\/p>\n
V. Reacquired Shares. Any shares of Series B Preferred Stock
\n purchased or otherwise acquired by the corporation in any manner
\n whatsoever shall be retired and cancelled promptly after the
\n acquisition thereof. All such shares shall upon their cancellation
\n become authorized but unissued shares of Preferred Stock and may be
\n reissued as part of a series of Preferred Stock to be created by
\n resolution or resolutions of the Board of Directors, subject to the
\n conditions and restrictions on issuance set forth herein.<\/p>\n
VI. Liquidation, Dissolution or Winding Up. Upon any
\n liquidation, dissolution or winding up of the corporation, no
\n distribution shall be made (1) to the holders of shares of stock
\n ranking junior (as to amounts payable upon liquidation, dissolution or
\n winding up) to the Series B Preferred Stock unless, prior thereto, the
\n holders of Series B Preferred Stock shall have received an amount per
\n share (rounded to the nearest cent) equal to the greater of (a) $100.00
\n per share, or (b) an amount per share, subject to the provision for
\n adjustment hereinafter set forth, equal to 100 times the aggregate
\n amount to be distributed per share to holders of Common Stock, plus, in
\n either case, an amount equal to accrued and unpaid dividends and
\n distributions thereon, whether or not declared, to the date of such
\n payment, or (2) to the holders of stock ranking on a parity (as to
\n amounts payable or upon liquidation, dissolution or winding up) with
\n the Series B Preferred Stock and all other such parity stock in
\n proportion to the total amounts to which the holders of all such shares
\n are entitled upon such liquidation, dissolution or winding up. If the
\n corporation shall at any time declare or pay any dividend on Common
\n Stock payable in shares of Common Stock, or effect a subdivision or
\n combination of the outstanding shares of Common Stock (by
\n reclassification or otherwise) into a greater or lesser number of
\n shares of Common Stock, then in each such case the aggregate amount to
\n which holders of shares of Series B Preferred Stock were entitled
\n immediately prior to such event under the provision in clause (1)(b) of
\n the preceding sentence shall be adjusted by multiplying such amount by
\n a fraction the numerator of which is the number of shares of Common
\n Stock outstanding immediately after such event and the denominator of
\n which is the number of shares of Common Stock that were outstanding
\n immediately prior to such event.<\/p>\n
-5-
\n 56<\/p>\n
VII. Consolidation, Merger, Etc. If the corporation shall
\n enter into any consolidation, merger, combination or other transaction
\n in which the shares of Common Stock are exchanged for or changed into
\n other stock or securities, cash or any other property, or any
\n combination thereof, then in any such case the shares of Series B
\n Preferred Stock shall at the same time be similarly exchanged or
\n changed in an amount per share (subject to the provision for adjustment
\n hereinafter set forth) equal to 100 times the aggregate amount of
\n stock, securities, cash or any other property, or any combination
\n thereof, into which or for which each share of Common Stock is changed
\n or exchanged. If the corporation shall at any time declare or pay any
\n dividend on Common Stock payable in shares of Common Stock, or effect a
\n subdivision or combination of the outstanding shares of Common Stock
\n (by reclassification or otherwise) into a greater or lesser number of
\n shares of Common Stock, then in each such case the amount set forth in
\n the preceding sentence with respect to the exchange or change of shares
\n of Series B Preferred Stock shall be adjusted by multiplying such
\n amount by a fraction the numerator of which is the number of shares of
\n Common Stock outstanding immediately after such event and the
\n denominator of which is the number of shares of Common Stock that were
\n outstanding immediately prior to such event.<\/p>\n
VIII. No Redemption. The shares of Series B Preferred Stock
\n shall not be redeemable.<\/p>\n
IX. Rank. Except as otherwise provided in its Certificate of
\n Incorporation, as amended, the corporation may authorize or create any
\n series of Preferred Stock ranking prior to or on a parity with the
\n Series B Preferred Stock as to dividends or as to distribution of
\n assets upon liquidation, dissolution or winding up.<\/p>\n
X. Amendment. The Certificate of Incorporation of the
\n corporation shall not be amended in any manner which would materially
\n alter or change the powers, preferences or special rights of the Series
\n B Preferred Stock so as to affect them adversely without the
\n affirmative vote of the holders of a majority of the outstanding shares
\n of Series B Preferred Stock, voting together as a single class.<\/p>\n
The foregoing resolution was adopted by the Board of Directors of the
\ncorporation, pursuant to the authority vested in it by the Certificate of
\nIncorporation of the corporation, at a meeting of the Board of Directors duly
\nheld on the 1st day of March, 1991.<\/p>\n
-6-
\n 57<\/p>\n
IN WITNESS WHEREOF, this Certificate has been executed on behalf of the
\ncorporation by its President and attested by its Secretary this 13th day of
\nMarch, 1991.<\/p>\n
TOM BROWN, INC.<\/p>\n
By: \/s\/ Donald L. Evans
\n ————————-
\n President<\/p>\n
ATTEST:<\/p>\n
\/s\/ James M. Alsup
\n———————–
\n Secretary<\/p>\n
-7-<\/p>\n
58<\/p>\n
CERTIFICATE OF AMENDMENT
\n TO THE
\n CERTIFICATE OF INCORPORATION
\n OF
\n TOM BROWN, INC.<\/p>\n
Tom Brown, Inc., a corporation organized and existing under the General
\nCorporation Law of the State of Delaware (the “Corporation”), does hereby
\ncertify as follows:<\/p>\n
Pursuant to the provisions of the Delaware General Corporation Law, the
\nBoard of Directors and the stockholders of the Corporation adopted an amendment
\nto the Certificate of Incorporation of the Corporation, which is set forth in
\nthe following resolution in accordance with Section 242 of the Delaware General
\nCorporation Law, the purpose of which amendment is to increase the number of
\nauthorized shares of Common Stock:<\/p>\n
“RESOLVED, That the Certificate of Incorporation of the Corporation be
\n amended by changing the first sentence of Article Fourth thereof, so
\n that as amended, the first sentence of Article Fourth shall read as
\n follows:<\/p>\n
FOURTH: The total number of shares of all classes that the
\n Corporation shall have authority to issue is 32,500,000, of
\n which 2,500,000 shares shall be Preferred Stock, par value
\n $.10 per share, and 30,000,000 shares shall be Common Stock,
\n $.10 par value per share.<\/p>\n
Except as specifically amended hereby, all other provisions of Article
\nFourth shall remain in full force and effect.<\/p>\n
IN WITNESS WHEREOF, Tom Brown, Inc. has caused this Certificate of
\nAmendment to be signed by Donald L. Evans, its Chairman of the Board of
\nDirectors, and attested by Kim Harris, its Assistant Secretary, this 18th day of
\nMay, 1994.<\/p>\n
TOM BROWN, INC.<\/p>\n
By: \/s\/ Donald L. Evans
\n ————————–
\n Donald L. Evans, Chairman of
\n the Board of Directors<\/p>\n
ATTESTED:<\/p>\n
\/s\/ Kim Harris
\n——————————-
\nKim Harris, Assistant Secretary<\/p>\n
59<\/p>\n
The undersigned Chairman of the Board of Directors of Tom Brown, Inc.,
\nbeing duly sworn, does verify that the foregoing instrument represents the act
\nand deed of Tom Brown, Inc. and that the facts stated in such instrument are
\ntrue.<\/p>\n
\/s\/ Donald L. Evans
\n —————————-
\n Donald L. Evans, Chairman of
\n the Board of Directors<\/p>\n
STATE OF TEXAS )
\n )
\nCOUNTY OF MIDLAND )<\/p>\n
Before me, the undersigned authority, on this day personally appeared
\nDONALD L. EVANS and KIM HARRIS, Chairman of the Board of Directors and Assistant
\nSecretary, respectively, of Tom Brown, Inc., a corporation formed under the laws
\nof the State of Delaware, known to me to be the individuals whose names are
\nsubscribed to the foregoing instrument, and acknowledged and swore to me that
\nthey each executed the same for the purposes and consideration therein expressed
\nand as the act and deed of said corporation and that the facts stated in the
\nforegoing instrument are true.<\/p>\n
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 18th day of May, 1994.<\/p>\n
\/s\/ Carolyn Vannoy
\n —————————–
\n Name: Carolyn Vannoy
\n ————————
\n Notary Public in and for
\n the State of Texas<\/p>\n
-2-
\n 60<\/p>\n
TOM BROWN, INC.<\/p>\n
Certificate of Designations, Powers, Preferences
\n and Rights of the $1.75 Convertible Preferred Stock,
\n Series A<\/p>\n
($0.10 Par Value)
\n Liquidation Value $25.00 Per Share<\/p>\n
———-<\/p>\n
Pursuant to Section 151 of the
\n General Corporation Law of the State of Delaware<\/p>\n
———-<\/p>\n
The undersigned, a Vice President of Tom Brown, Inc., a Delaware
\ncorporation (hereinafter called the “Corporation”), DOES HEREBY CERTIFY that the
\nfollowing resolution has been duly adopted by the Board of Directors of the
\nCorporation:<\/p>\n
RESOLVED, that pursuant to the authority expressly granted to and
\nvested in the Board of Directors of the Corporation (the “Board of Directors”)
\nby the provisions of Paragraph FOURTH of the Certificate of Incorporation of the
\nCorporation, there hereby is created, out of the two million five hundred
\nthousand (2,500,000) shares of Preferred Stock of the par value of Ten Cents
\n($0.10) per share of the Corporation authorized in Paragraph FOURTH of its
\nCertificate of Incorporation (the “Preferred Stock”), a series of Preferred
\nStock of the Corporation consisting of One Million (1,000,000) shares, which
\nseries shall have the following designations, powers, preferences, rights,
\nqualifications, limitations and restrictions (in addition to the designations,
\npowers, preferences, rights, qualifications, limitations and restrictions set
\nforth in the Certificate of Incorporation of the Corporation which are
\napplicable to the Preferred Stock):<\/p>\n
1. Designation; Number of Shares.<\/p>\n
The designation of said series of the Preferred Stock shall be
\n“$1.75 Convertible Preferred Stock, Series A” (the “Series A Preferred Stock”).
\nThe number of shares of Series A Preferred Stock shall be limited to One Million
\n(1,000,000).<\/p>\n
2. Dividends.<\/p>\n
(a) The shares of Series A Preferred Stock shall be entitled
\nto receive, when and as declared by the Board of Directors or a duly authorized
\ncommittee thereof (an “Authorized Board Committee”), out of funds legally<\/p>\n
61<\/p>\n
available for the payment of dividends, cumulative dividends at the annual rate
\nof $1.75 per share, and no more, payable in cash on March 15, 1996, with respect
\nto the period commencing on the date of original issue thereof and ending March
\n14, 1996, and thereafter quarterly on the fifteenth day of March, June,
\nSeptember and December in each year, except that if any such date is a Saturday,
\nSunday or legal holiday, then such dividend shall be payable on the next
\nsucceeding day which is not a Saturday, Sunday or legal holiday (the “Dividend
\nPayment Date” or “Dividend Payment Dates”), with respect to the quarterly period
\nending on the fourteenth day of March, June, September or December next
\npreceding such Dividend Payment Date, to stockholders of record on the record
\ndate, not exceeding sixty (60) days preceding such Dividend Payment Date, fixed
\nfor such purpose by the Board of Directors or an Authorized Board Committee in
\nadvance of each particular Dividend Payment Date. Dividends in arrears may be
\ndeclared and paid at any time, without reference to any regular Dividend Payment
\nDate, to holders of record on such date, not more than sixty (60) nor less than
\nten (10) days preceding the payment date thereof, as may be fixed by the Board
\nof Directors or an Authorized Board Committee. The amount of dividends payable
\non shares of Series A Preferred Stock for each full quarterly dividend period
\nshall be computed by dividing by four the annual rate per share set forth in
\nthis paragraph 2. Dividends payable on the Series A Preferred Stock for the
\ninitial dividend period and for any period less than a full quarterly period
\nthereafter shall be computed on the basis of a 360-day year of twelve 30-day
\nmonths.<\/p>\n
(b) Except as provided below with regard to any class of stock
\nranking on a parity with the Series A Preferred Stock as to payment of
\ndividends, so long as shares of Series A Preferred Stock shall remain
\noutstanding, if full cumulative dividends on the Series A Preferred Stock have
\nnot been declared and paid or set apart for payment, the Corporation shall not
\ndeclare or pay or set apart for payment any dividends or make any other
\ndistributions on, or make any payment on account of the purchase, redemption or
\nretirement of, the Common Stock of the Corporation, or any other stock of the
\nCorporation ranking on a parity with or junior to the Series A Preferred Stock
\nas to payment of dividends or distribution of assets on liquidation, dissolution
\nor winding up of the Corporation (other than, in the case of dividends or
\ndistributions, dividends or distributions paid in shares of Common Stock or such
\nother junior ranking stock), until full cumulative dividends on the Series A
\nPreferred Stock are declared and paid or set apart for payment. When dividends
\nare not paid in full upon the shares of the Series A Preferred Stock and any
\nother Preferred Stock ranking on a parity as to payment of dividends with the
\nSeries A Preferred Stock, all dividends declared upon shares of the Series A
\nPreferred Stock and any other Preferred Stock ranking on a parity as to
\ndividends with the Series A Preferred Stock shall be declared pro rata so that
\nthe amount of dividends declared per share on the Series A Preferred Stock and
\nsuch other Preferred Stock shall in all cases bear to each other the same ratio
\nthat accrued dividends per share on the shares of the Series A Preferred Stock
\nand such other Preferred Stock bear to each other.<\/p>\n
-2-
\n 62<\/p>\n
3. Optional Redemptions.<\/p>\n
(a) The Corporation may, at its option, at any time beginning
\non or after March 15, 2001, redeem all, or any number less than all, of the
\noutstanding shares of Series A Preferred Stock. The Series A Preferred Stock may
\nnot be redeemed, in whole or in part prior to March 15, 2001. All redemptions of
\nshares of Series A Preferred Stock at the option of the Corporation shall be
\neffected at the redemption price of $25.00 per share plus, in each case, an
\namount equal to all dividends (whether or not earned or declared) accrued and
\nunpaid on such share of Series A Preferred Stock to the date of redemption.<\/p>\n
(b) The Corporation may not purchase, redeem or otherwise
\nacquire for value any shares of Series A Preferred Stock or shares of any other
\nseries of Preferred Stock then outstanding ranking on a parity with the Series A
\nPreferred Stock unless all accumulated dividends on all shares of Series A
\nPreferred Stock then outstanding shall have been paid or declared and a sum
\nsufficient for the payment thereof set apart.<\/p>\n
(c) Notice of any proposed redemption of shares of Series A
\nPreferred Stock at the option of the Corporation shall be given by the
\nCorporation by mailing a copy of such notice no less than thirty (30) days nor
\nmore than sixty (60) days prior to the date fixed for such redemption to holders
\nof record of the shares of Series A Preferred Stock to be redeemed at their
\nrespective addresses appearing on the books of the Corporation. Said notice
\nshall specify the shares called for redemption, the redemption price and the
\nplace at which and the date on which the shares called for redemption will, upon
\npresentation and surrender of the certificates of stock evidencing such shares,
\nbe redeemed and the redemption price therefor paid. In the case of the
\nredemption of less than all the outstanding shares of Series A Preferred Stock,
\nthe Corporation will select the shares to be redeemed by lot or pro rata (as
\nnearly as may be) among all then outstanding Series A Preferred Stock or by any
\nother means permitted or required by the rules of any securities exchange on
\nwhich the Series A Preferred Stock is then listed, in each case as may be
\nprescribed by the Board of Directors or an Authorized Board Committee. From and
\nafter the date fixed in any such notice as the date of redemption of shares of
\nSeries A Preferred Stock, unless default shall be made by the Corporation in
\nproviding monies at the time and place specified for the payment of the
\nredemption price pursuant to such notice, all dividends on the Series A
\nPreferred Stock thereby called for redemption shall cease to accrue, such shares
\nof Series A Preferred Stock shall no longer be deemed to be outstanding and all
\nrights of the holders thereof as stockholders of the Corporation with respect to
\nshares of Series A Preferred Stock, except the right to receive the redemption
\nprice plus accrued dividends to the date of redemption, shall cease and
\nterminate.<\/p>\n
-3-
\n 63<\/p>\n
(d) Upon the occurrence of a change of control of the
\nCorporation, the holders of the shares of Series A Preferred Stock not
\npreviously called for redemption shall have the right to cause the Series A
\nPreferred Stock to be redeemed by the Corporation, as a whole or in part, within
\nthe time period specified in and subject to the procedures set forth
\nhereinafter, at the redemption price of $25.50 per share plus, in each case, an
\namount equal to all dividends (whether or not earned or declared) accrued and
\nunpaid on such shares of Series A Preferred Stock to the date of redemption. A
\nchange of control of the Corporation shall be deemed to have occurred if and
\nwhen a change of control of the Corporation shall occur pursuant to the
\nprovisions of the Joint Venture Agreement between the Corporation and K N
\nEnergy, Inc., a Kansas corporation (“KNE”), as the same may be amended from time
\nto time. Unless the Corporation shall have elected to redeem all of the shares
\nof Series A Preferred Stock pursuant to paragraph 3(a) above, not more than ten
\n(10) days after the occurrence of a change of control of the Corporation, the
\nCorporation shall mail a notice thereof to each holder of record of shares of
\nSeries A Preferred Stock at its address appearing on the books of the
\nCorporation. Said notice shall set forth: (i) a summary description of such
\nchange of control; (ii) the date such change of control occurred; (iii) that
\neach holder of record of Series A Preferred Stock not previously called for
\nredemption by the Corporation may require the Corporation to redeem all or any
\npart of such holder’s shares by surrendering the certificates representing such
\nshares no later than the redemption date; (iv) the redemption date, which shall
\nbe the first business day next succeeding ten (10) days after the giving of such
\nnotice; (v) the redemption price; (vi) that on the redemption date, the
\nredemption price will become due and payable with respect to each share of
\nSeries A Preferred Stock elected to be redeemed and that dividends thereon shall
\ncease to accrue on and after said date, unless the Corporation shall default in
\nredeeming such shares; and (vii) the place or places where certificates
\nrepresenting shares of Series A Preferred Stock are to be surrendered for
\npayment of the redemption price. In order for any shares of Series A Preferred
\nStock to be redeemed at the election of the holder thereof, the Corporation must
\nreceive a certificate representing such shares at the place or places where such
\nshares are to be surrendered for payment of the redemption price, on or before
\nthe redemption date, accompanied by written notice to the Corporation
\ninstructing the Corporation to redeem such shares. Such notice duly received
\nshall be irrevocable. If the Corporation shall fail to give any notice of the
\noccurrence of a change of control as required by this paragraph 3(d), then the
\nholders of the Series A Preferred Stock not previously called for redemption
\nshall have the continuing right to require the Corporation to redeem their
\nshares at the redemption price specified herein, until the Corporation shall
\nhave given such notice as aforesaid, whereupon such rights shall be subject to
\nthe limitations and procedures set forth in this paragraph 3(d).<\/p>\n
(e) All shares of Series A Preferred Stock which shall at any
\ntime have been redeemed, whether at the option of the Corporation or the holder
\nthereof, shall, after such redemption, have the status of authorized but
\nunissued <\/p>\n
-4-
\n 64<\/p>\n
shares of Preferred Stock, without designation as to series until such
\nshares are once more designated as part of a particular series by the Board of
\nDirectors or an Authorized Board Committee.<\/p>\n
4. Conversion Rights.<\/p>\n
(a) Each share of the Series A Preferred Stock shall be
\nconvertible at the option of the holder thereof, at any time prior to the
\nredemption of such share as hereinabove provided, into fully paid and
\nnonassessable shares of Common Stock at the initial conversion rate of 1.6660
\nshares of Common Stock for each share of Series A Preferred Stock, subject to
\nadjustment as provided in paragraph 4(e).<\/p>\n
(b) The Common Stock deliverable upon conversion of Series A
\nPreferred Stock shall be Common Stock of the Corporation of the par value of
\n$.10 per share, as constituted at the date of this certificate, except as
\notherwise provided in subdivisions (i), (vii) and (ix) of paragraph 4(e).<\/p>\n
(c) In order for any holder of Series A Preferred Stock to
\nconvert the same into Common Stock, such holder shall surrender the certificate
\nor certificates for such Series A Preferred Stock at the principal office of the
\nCorporation, which certificate or certificates, if the Corporation shall so
\nrequest, shall be duly endorsed to the Corporation or in blank, or accompanied
\nby proper instruments of transfer to the Corporation or in blank, and, subject
\nto the provisions of paragraph 4(g), shall be accompanied by payment of any
\napplicable stock transfer or other taxes, and such holder shall give written
\nnotice to the Corporation at such office that such holder elects so to convert
\nsuch Series A Preferred Stock, and state in writing therein the name or names in
\nwhich such holder wishes the certificate or certificates for Common Stock to be
\nissued. Every such notice of election to convert shall constitute a contract
\nbetween the holder of such Series A Preferred Stock and the Corporation, whereby
\nthe holder of such Series A Preferred Stock shall be deemed to subscribe for the
\namount of Common Stock which such holder shall be entitled to receive upon such
\nconversion, and, in satisfaction of such subscription, to deposit the Series A
\nPreferred Stock to be converted and to release the Corporation from all
\nliability thereunder (except to deliver the shares deliverable upon conversion
\nthereof), and thereby the Corporation shall be deemed to agree that the amount
\npaid to it for such Series A Preferred Stock, together with the surrender of the
\ncertificate or certificates therefor and the extinguishment of liability thereon
\n(except as aforesaid), shall constitute full payment of such subscription for
\nCommon Stock to be delivered upon such conversion.<\/p>\n
(d) The Corporation will, as soon as practicable after such
\ndeposit of certificates for Series A Preferred Stock accompanied by the written
\nnotice and the statement above prescribed, deliver at said office to the person
\nfor whose account such Series A Preferred Stock was so surrendered, or to such
\nperson’s nominee or nominees, certificates for the number of shares of Common
\nStock to <\/p>\n
-5-
\n 65<\/p>\n
which such person shall be entitled as aforesaid, together with any cash
\nadjustment of any fraction of a share as hereinafter provided. Subject to the
\nfollowing provisions of this paragraph, such conversion shall be deemed to have
\nbeen made as of the date of such surrender of the Series A Preferred Stock to be
\nconverted; and the person or persons entitled to receive the Common Stock
\ndeliverable upon conversion of such Series A Preferred Stock shall be treated
\nfor all purposes as the record holder or holders of such Common Stock on such
\ndate. The Corporation shall not be required to convert any shares of Series A
\nPreferred Stock while the stock transfer books of the Corporation are closed for
\nany purpose; but the surrender of Series A Preferred Stock for conversion during
\nany period while such books are so closed shall become effective for conversion
\nimmediately upon reopening of such books, as if the surrender had been made on
\nthe date of such reopening, and conversion shall be at the conversion rate in
\neffect at such date.<\/p>\n
No adjustments in respect of, or payments of dividends on,
\nshares surrendered for conversion or any dividend on the Common Stock issued
\nupon conversion, shall be made upon the conversion of any shares of Series A
\nPreferred Stock. Without limiting the generality of the foregoing, if any shares
\nshall be converted subsequent to the close of business on the record date next
\npreceding a Dividend Payment Date but on or prior to the opening of business on
\nsuch Dividend Payment Date, the registered holder of such shares at the close of
\nbusiness on such record date shall not be entitled to receive the dividend
\notherwise payable on such shares on such Dividend Payment Date.<\/p>\n
(e) The conversion rate shall be subject to adjustment as
\n follows:<\/p>\n
(i) In case the Corporation shall (A) pay a dividend
\n on its Common Stock in shares of its Common Stock, (B) subdivide its
\n outstanding shares of Common Stock, or (C) combine its outstanding
\n shares of Common Stock into a smaller number of shares, the conversion
\n rate in effect at the time of the record date of such dividend,
\n subdivision, or combination shall be proportionately adjusted so that
\n the holder of any Series A Preferred Stock surrendered for conversion
\n after such time shall be entitled to receive the number and kind of
\n shares which he would have owned or have been entitled to receive had
\n such Series A Preferred Stock been converted immediately prior to such
\n time. Such adjustment shall be made successively whenever any event
\n listed above shall occur.<\/p>\n
(ii) In case the Corporation shall issue rights or
\n warrants to all holders of its Common Stock entitling them (for a
\n period expiring within 45 days after the record date for the
\n determination of stockholders entitled to receive such rights or
\n warrants) to subscribe for or purchase shares of Common Stock at a
\n price per share less than the Current Market Price (as defined below)
\n per share of Common Stock on such record date, the number of shares of
\n Common Stock into which each share of Series A <\/p>\n
-6-
\n 66<\/p>\n
Preferred Stock shall be convertible thereafter shall be determined by
\n multiplying the number of shares of Common Stock into which such shares
\n of Series A Preferred Stock were convertible immediately prior to such
\n record date by a fraction of which the numerator shall be the number of
\n shares of Common Stock outstanding on such record date plus the number
\n of additional shares of Common Stock offered for subscription or
\n purchase and of which the denominator shall be the number of shares of
\n Common Stock outstanding on such record date plus the number of shares
\n of Common Stock which the aggregate offering price of the total number
\n of shares so offered would purchase at such Current Market Price. Such
\n adjustment shall be made successively whenever such rights or warrants
\n are issued, and shall become effective retroactively immediately after
\n the record date for the determination of stockholders entitled to
\n receive such rights or warrants; provided, however, if all the shares
\n of Common Stock offered for subscription or purchase are not delivered
\n upon the exercise of such rights or warrants, upon the expiration of
\n such rights or warrants the conversion rate shall be readjusted to the
\n conversion rate which would have been in effect had the numerator and
\n the denominator of the foregoing fraction and the resulting adjustment
\n been made based upon the number of shares of Common Stock actually
\n delivered upon the exercise of such rights or warrants rather than upon
\n the number of shares of Common Stock offered for subscription or
\n purchase. For the purposes of this subdivision (ii), the number of
\n shares of Common Stock at any time outstanding shall not include shares
\n held in the treasury of the Company but shall include shares issuable
\n in respect of scrip certificates issued in lieu of fractions of shares
\n of Common Stock.<\/p>\n
(iii) In case the Corporation shall distribute to all
\n holders of its Common Stock shares of its capital stock (other than
\n Common Stock), evidences of indebtedness or assets of the Corporation
\n (excluding dividends paid in, or distributions of, cash from the
\n retained earnings of the Corporation) or subscription rights or
\n warrants (excluding those referred to in subdivision (ii) above), the
\n number of shares of Common Stock into which each share of Series A
\n Preferred Stock shall be convertible thereafter shall be determined by
\n multiplying the number of shares of Common Stock into which such share
\n of Series A Preferred Stock was convertible immediately prior to such
\n record date by a fraction of which the numerator shall be the Current
\n Market Price per share of the Common Stock on the record date for the
\n determination of stockholders entitled to receive such distribution and
\n of which the denominator shall be such Current Market Price per share
\n of Common Stock less the fair market value (as determined by the Board
\n of Directors or an Authorized Board Committee thereof, whose
\n determination shall be conclusive) of the portion of the capital stock,
\n evidences of indebtedness, assets or subscription rights or warrants
\n distributed applicable to one share of <\/p>\n
-7-
\n 67<\/p>\n
Common Stock. Such adjustment shall be made successively whenever any
\n such distribution is made, and shall become effective retroactively
\n after such record date.<\/p>\n
(iv) For the purpose of any computation under
\n subdivisions (ii) and (iii) above, the “Current Market Price” per share
\n of Common Stock on any date shall be deemed to be the average of the
\n daily Closing Prices for the thirty (30) consecutive business days
\n commencing forty-five (45) business days before such date. Where used
\n herein, the “Closing Price” for each day shall be the reported last
\n sale price regular way or, in case no such reported sale takes place on
\n such day, the average of the reported closing bid and asked prices
\n regular way, in either case as reported on the New York Stock Exchange
\n Composite Transactions reporting system or, if not so quoted, on the
\n New York Stock Exchange, or, if at any time the Common Stock is not
\n listed or admitted to trading on such Exchange, on the principal
\n national securities exchange on which the Common Stock is listed or
\n admitted to trading, or if the Common Stock is not listed or admitted
\n to trading on any national securities exchange, on the National
\n Association of Securities Dealers Automated Quotation National Market
\n (“NASDAQ”), or, if the Common Stock is not listed or admitted to
\n trading on any national securities exchange or quoted on NASDAQ, the
\n average of the closing bid and asked prices in the over-the-counter
\n market as furnished by any New York Stock Exchange member firm selected
\n from time to time by the Board of Directors or an Authorized Board
\n Committee for such purposes.<\/p>\n
(v) In any case in which this paragraph 4(e) shall
\n require that an upward adjustment of the conversion rate as a result of
\n any event that becomes effective after a record date or effective date
\n for such event, the Corporation may elect to defer until after the
\n occurrence of such event (A) issuing to the holder of any shares of
\n Series A Preferred Stock converted after such record date and before
\n the occurrence of such event the additional shares of Common Stock
\n issuable upon such conversion over and above the shares of Common Stock
\n issuable upon such conversion on the basis of the conversion rate prior
\n to adjustment and (B) paying to such holder any amount in cash in lieu
\n of a fractional share of Common Stock pursuant to subdivision (viii)
\n below; and, in lieu of the shares the issuance of which is so deferred,
\n the Corporation shall issue or cause its Transfer Agent to issue due
\n bills or other appropriate evidence of the right to receive such
\n shares.<\/p>\n
(vi) No adjustment in the conversion rate applicable
\n to a share of Series A Preferred Stock shall be required unless such
\n adjustment would require an increase or decrease of at least 1% in such
\n rate; provided, however, that the Corporation may make any such
\n adjustment at its election; and provided, further, however, that any
\n adjustments which by reason of this subdivision (vi) are not made shall
\n be carried forward and <\/p>\n
-8-
\n 68<\/p>\n
taken into account in any subsequent adjustment. All calculations under
\n this paragraph 4(e) shall be made to the nearest one-hundredth of a
\n share. Anything in this paragraph 4(e) notwithstanding, the Corporation
\n shall be entitled to make such increases in the conversion rate, in
\n addition to those required by this paragraph 4(e), as it in its
\n discretion shall determine to be advisable in order that any dividend
\n of capital stock, subdivision or combination of shares, distribution of
\n rights or warrants to purchase capital stock or other securities, or
\n distribution of securities convertible into or exchangeable for capital
\n stock, hereafter made by the Corporation to its stockholders shall not
\n be taxable.<\/p>\n
(vii) In case of any consolidation of the Corporation
\n into, or merger of the Corporation with or into, any other corporation
\n (other than a consolidation or merger in which the Corporation is the
\n continuing corporation and which does not result in any
\n reclassification, change or conversion of outstanding shares of Common
\n Stock), or in case of any sale or transfer of all or substantially all
\n of the assets of the Corporation, or in case of any reclassification of
\n its shares of Common Stock (other than a change in par value, or from
\n par value to no par value, or from no par value to par value, or as a
\n result of a subdivision or combination), the holder of each share of
\n Series A Preferred Stock then outstanding shall have the right
\n thereafter to convert such share into the kind and amount of shares of
\n capital stock and other securities, cash and other property receivable
\n upon such consolidation, merger, sale, transfer or reclassification by
\n a holder of the number of shares of Common Stock of the Corporation
\n into which such share of Series A Preferred Stock might have been
\n converted immediately prior to such consolidation, merger, sale,
\n transfer or reclassification. In any such event, effective provision
\n shall be made, in the articles or certificate of incorporation of the
\n resulting or surviving corporation or other corporation issuing or
\n delivering such shares of capital stock, other securities, cash or
\n other property or otherwise, so that the provisions set forth herein
\n for the protection of the conversion rights of the Series A Preferred
\n Stock shall thereafter be applicable, as nearly as reasonably may be,
\n to any such other shares of capital stock and other securities, cash
\n and other property deliverable upon conversion of the Series A
\n Preferred Stock remaining outstanding or other convertible stock or
\n securities received by the holders in place thereof; and any such
\n resulting or surviving corporation or other corporation issuing or
\n delivering such shares of capital stock, other securities, cash or
\n other property shall expressly assume the obligation to deliver, upon
\n the exercise of the conversion privilege, such shares of capital stock,
\n securities, cash or other property as the holders of the Series A
\n Preferred Stock remaining outstanding, or other convertible stock or
\n securities received by the holders in place thereof, shall be entitled
\n to receive, pursuant to the provisions hereof, and to make provision
\n for the protection of the conversion right as above provided. In case
\n shares of capital stock, securities, cash or other property other than
\n Common Stock <\/p>\n
-9-
\n 69<\/p>\n
shall be issuable or deliverable upon conversion as aforesaid, then all
\n references to Common Stock in this paragraph 4(e) shall be deemed to
\n apply, so far as provided and as nearly as is reasonable, to any such
\n shares of capital stock, other securities, cash or other property.<\/p>\n
(viii) No fractional interests in Common Stock shall
\n be issued upon conversion of shares of Series A Preferred Stock.
\n Instead of any fractional share of Common Stock which would otherwise
\n be issuable upon conversion of any share of Series A Preferred Stock,
\n the Corporation will pay a cash adjustment in respect of such
\n fractional interest in an amount equal to the same fraction of the
\n Closing Price per share of Common Stock determined as of the business
\n day preceding the date of conversion.<\/p>\n
(ix) In the event that at any time, as a result of
\n any adjustment made pursuant to this paragraph 4(e), the holder of any
\n share of Series A Preferred Stock thereafter surrendered for conversion
\n shall become entitled to receive any shares of the Corporation other
\n than shares of its Common Stock, the number of such other shares so
\n receivable upon conversion of any share of Series A Preferred Stock
\n shall be subject to adjustment from time to time in a manner and on
\n terms as nearly equivalent as practicable to the provision with respect
\n to the Common Stock contained in subdivisions (i) to (viii), inclusive,
\n above, with respect to the Common Stock.<\/p>\n
(x) Whenever any adjustment is required in the number
\n of shares into which each share of Series A Preferred Stock is
\n convertible, the Corporation shall forthwith mail to the holders of
\n record of the Series A Preferred Stock a statement describing in
\n reasonable detail the adjustment and the method of calculation used.<\/p>\n
(f) Upon any conversion of shares of Series A Preferred Stock,
\nthe shares so converted shall have the status of authorized and unissued shares
\nof Preferred Stock, unclassified as to series, and the number of shares of
\nPreferred Stock which the Corporation shall have authority to issue shall not be
\ndecreased by the conversion of shares of Series A Preferred Stock. The
\nCorporation shall at all times reserve and keep available, out of its authorized
\nand unissued stock or stock held as treasury stock, solely for the purpose of
\neffecting the conversion of the Series A Preferred Stock, such number of shares
\nof its Common Stock as shall from time to time be sufficient to effect the
\nconversion of all shares of Series A Preferred Stock from time to time
\noutstanding. For the purpose of this paragraph 4(f), the full number of shares
\nof Common Stock issuable upon the conversion of all outstanding shares of Series
\nA Preferred Stock shall be computed as if at the time of computation of such
\nnumber of shares of Common Stock all outstanding shares of Series A Preferred
\nStock were held by a single holder. The Corporation shall use all reasonable
\nefforts from time to time, in accordance with the laws of the State of Delaware,
\nto cause its shareholders to approve an increase in the authorized number of
\nshares of its Common Stock if <\/p>\n
-10-
\n 70<\/p>\n
at any time the number of shares of its Common Stock not outstanding shall not
\nbe sufficient to permit the conversion of all the then outstanding Series A
\nPreferred Stock.<\/p>\n
(g) The Corporation will pay any and all issue or other taxes
\nthat may be payable in respect of any issue or delivery of shares of Common
\nStock on conversion of Series A Preferred Stock pursuant thereto. The
\nCorporation shall not, however, be required to pay any tax which may be payable
\nin respect of any transfer involved in the issue or delivery of Common Stock in
\na name other than that in which the certificate representing the Series A
\nPreferred Stock so converted was registered, and no such issue or delivery shall
\nbe made unless and until the person requesting such issue has paid to the
\nCorporation the amount of such tax, or has established, to the satisfaction of
\nthe Corporation, that such tax has been paid.<\/p>\n
(h) Before taking any action which would cause an adjustment
\nreducing the conversion rate such that the conversion price (for purposes of
\nthis paragraph, an amount equal to $25.00 divided by the conversion rate
\napplicable to a share of Series A Preferred Stock as in effect from time to
\ntime) would be below the then par value of the Common Stock, the Corporation
\nwill take any corporate action which may, in the opinion of its counsel, be
\nnecessary in order that the Corporation may validly and legally issue fully paid
\nand nonassessable shares of Common Stock at the conversion rate as so adjusted.<\/p>\n
5. Exchange.<\/p>\n
(a) The shares of Series A Preferred Stock shall be
\nexchangeable, in whole or in part, at the option of the Corporation on any
\nDividend Payment Date at any time on or after March 15, 1999, and prior to March
\n15, 2001, for fully paid and nonassessable shares of Common Stock at the
\nexchange rate of 1.6660 shares of Common Stock for each share of Series A
\nPreferred Stock; provided that (i) on or prior to the date of exchange the
\nCorporation shall have declared and paid or set apart for payment to the holders
\nof outstanding shares of Series A Preferred Stock all accumulated and unpaid
\ndividends to the date of exchange, and (ii) the Current Market Price (as defined
\nin subdivision (iv) of paragraph 4(e) above) of the Common Stock is above
\n$18.375 (the “Threshold Price”). The Common Stock deliverable upon exchange of
\nSeries A Preferred Stock shall be Common Stock of the Corporation of the par
\nvalue of $.10 per share, as constituted at the date of this certificate, except
\nas otherwise provided in subdivisions (i), (vii) and (ix) of paragraph 4(e)
\nwhich shall be applicable as provided in the next sentence. The exchange rate
\nshall be subject to adjustment in the same manner and under the same
\ncircumstances as the conversion rate is subject to adjustment as provided in
\nparagraph 4(e), and the Threshold Price shall be subject to adjustment in the
\nsame manner and under the same circumstances, mutatis mutandis, as the exchange
\nrate is subject to adjustment. The Corporation will mail to each holder of
\nrecord of shares of Series A Preferred Stock at his address appearing on the
\nbooks of the Corporation written notice of <\/p>\n
-11-
\n 71<\/p>\n
any change in the exchange rate or the Threshold Price and a summary description
\nof the basis of such change. The Corporation will mail to each holder of record
\nof the shares of Series A Preferred Stock at his address appearing on the books
\nof the Corporation written notice of its intention to exchange no less than
\nthirty (30) nor more than sixty (60) days prior to the date fixed for the
\nexchange (the “Exchange Date”). Each such notice shall state: (i) the Exchange
\nDate, (ii) the place or places where certificates for such shares of Series A
\nPreferred Stock are to be surrendered for exchange into shares of Common Stock,
\nand (iii) that dividends on the shares of Series A Preferred Stock to be
\nexchanged will cease to accrue on such Exchange Date.<\/p>\n
(b) If notice has been mailed as aforesaid, from and after the
\nExchange Date (unless default shall be made by the Corporation in issuing shares
\nof Common Stock in exchange for, or making the final dividend payment on, the
\noutstanding shares of Series A Preferred Stock on the Exchange Date), dividends
\non the shares of Series A Preferred Stock shall cease to accrue, and said shares
\nshall no longer be deemed to be issued and outstanding, and all rights of the
\nholders thereof as holders of shares of Series A Preferred Stock of the
\nCorporation (except the right to receive from the Corporation the shares of
\nCommon Stock) in respect of such shares of Series A Preferred Stock shall cease
\nand terminate. Upon surrender in accordance with said notice of the certificates
\nfor any shares of Series A Preferred Stock so exchanged (properly endorsed or
\nassigned for transfer, if the Corporation shall so require and the notice shall
\nso state), such shares shall be exchanged by the Corporation for shares of
\nCommon Stock as aforesaid.<\/p>\n
(c) All shares of Series A preferred Stock which shall at any
\ntime have been exchanged for shares of Common Stock of the Corporation shall,
\nafter such exchange, have the status of authorized but unissued shares of
\nPreferred Stock, without designation as to series, until such shares are once
\nmore designated as part of a particular series by the Board of Directors.<\/p>\n
(d) The Corporation will, as soon as practicable after the
\nsurrender for exchange of certificates representing shares of Series A Preferred
\nStock, deliver at said place for surrender to the person for whose account such
\nSeries A Preferred Stock was so surrendered, or to his nominee or nominees,
\ncertificates for the number of shares of Common Stock to which he shall be
\nentitled as aforesaid, together with any cash adjustment of any fraction of a
\nshare as hereinafter provided.<\/p>\n
(e) The Corporation will pay any and all issue or other taxes
\nthat may be payable in respect of any issue or delivery of shares of Common
\nStock on exchange of Series A Preferred Stock pursuant to this paragraph 5. The
\nCorporation shall not, however, be required to pay any tax which may be payable
\nin respect of any transfer involved in the issue or delivery of Common Stock in
\na name other than that in which the certificate representing the Series A
\nPreferred Stock so exchanged was registered, and no such issue or delivery shall<\/p>\n
-12-
\n 72<\/p>\n
be made unless and until the person requesting such issue has paid to the
\nCorporation the amount of such tax, or has established, to the satisfaction of
\nthe Corporation, that such tax has been paid.<\/p>\n
(f) Before taking any action which would cause an adjustment
\nreducing the exchange rate such that the exchange price (for purposes of this
\nparagraph, an amount equal to $25.00 divided by the exchange rate applicable to
\na share of Series A Preferred Stock as in effect from time to time) would be
\nbelow the then par value of the Common Stock, the Corporation will take any
\ncorporate action which may, in the opinion of its counsel, be necessary in order
\nthat the Corporation may validly and legally issue fully paid and nonassessable
\nshares of Common Stock at the exchange rate as so adjusted.<\/p>\n
6. Number of Shares.<\/p>\n
The Board of Directors of the Corporation reserves the right
\nby subsequent amendment of this resolution from time to time to decrease the
\nnumber of shares which constitute the Series A Preferred Stock (but not below
\nthe number of shares thereof then outstanding) and, subject to anything to the
\ncontrary set forth in the Certificate of Incorporation of the Corporation
\napplicable to the Preferred Stock, to subdivide the number of shares, the stated
\nvalue per share and the liquidation value per share of the Series A Preferred
\nStock and in other respect to amend, within the limitations provided by law,
\nthis resolution and the Certificate of Incorporation of the Corporation.<\/p>\n
7. Liquidation Rights.<\/p>\n
Upon the dissolution, liquidation or winding up of the
\nCorporation, whether voluntary or involuntary, the holders of the Series A
\nPreferred Stock shall be entitled to receive out of the assets of the
\nCorporation available for distribution to stockholders, the amount of $25.00 per
\nshare plus an amount equal to all dividends on such shares (whether or not
\nearned or declared) accrued and unpaid thereon to the date of final
\ndistribution, before any payment or distribution shall be made on the Common
\nStock or on any other class of stock ranking junior to the Series A Preferred
\nStock with respect to distributions upon dissolution, liquidation or winding up.
\nFor purposes of this paragraph 7, the merger or consolidation of the Corporation
\nor the sale of all or substantially all of the Corporation’s assets, shall not
\nbe deemed to be a liquidation, dissolution or winding up of the Corporation. In
\nthe event the assets of the Corporation available for distribution to the
\nholders of shares of the Series A Preferred Stock upon any dissolution,
\nliquidation or winding up of the Corporation shall be insufficient to pay in
\nfull all amounts to which such holders are entitled pursuant to this paragraph
\n7, no such distributions shall be made upon account of any shares of any other
\nclass of stock of the Corporation ranking on a parity with the shares of the
\nSeries A Preferred Stock upon such dissolution, liquidation or winding up unless
\nproportionate distributive amounts shall be paid on account of the shares of the
\nSeries A Preferred Stock, ratably, <\/p>\n
-13-
\n 73<\/p>\n
in proportion to the full distributable amounts to which holders of all such
\nparity shares are respectively entitled upon such dissolution, liquidation or
\nwinding up. After the payment to the holders of the shares of the Series A
\nPreferred Stock of the full preferential amounts provided for in this paragraph
\n7, the holders of the Series A Preferred Stock as such shall have no right or
\nclaim to any of the remaining assets of the Corporation.<\/p>\n
8. Voting Rights.<\/p>\n
The shares of Series A Preferred Stock shall have the
\nfollowing voting rights:<\/p>\n
(a) So long as any shares of the Series A Preferred Stock
\nremain outstanding, the Corporation will not, either directly or indirectly,
\nwithout the affirmative vote at a meeting or the written consent with or without
\na meeting of the holders of at least 66 2\/3% of the shares of Series A Preferred
\nStock then outstanding, amend, alter or repeal any of the provisions of the
\nCertificate of the Designations, Powers, Preferences and Rights of the Series A
\nPreferred Stock or the Certificate of Incorporation of the Corporation, or
\nauthorize any reclassification of the Series A Preferred Stock, so as in any
\nsuch case to affect adversely the preferences, special rights or powers of the
\nSeries A Preferred Stock or authorize any capital stock of the Corporation
\nranking, either as to payment of dividends or upon liquidation, dissolution or
\nwinding up of the Corporation, prior to the Preferred Stock.<\/p>\n
(b) So long as any shares of the Series A Preferred Stock
\nremain outstanding, the Corporation will not, either directly or indirectly,
\nwithout the affirmative vote at a meeting or the written consent with or without
\na meeting of the holders of at least a majority in voting power of shares of the
\nSeries A Preferred Stock then outstanding, increase the authorized number of
\nshares of Preferred Stock or create, or increase the authorized number of shares
\nof, any other class of capital stock of the Corporation ranking on a parity with
\nthe Preferred Stock either as to payment of dividends or upon liquidation,
\ndissolution or winding up of the Corporation.<\/p>\n
(c) If at any time dividends payable on the Series A Preferred
\nStock are in arrears and unpaid in an amount equal to or exceeding the amount of
\ndividends payable thereon for four quarterly dividend periods, the total number
\nof directors on the Corporation’s Board of Directors shall be limited to a
\nmaximum of nine and the holders of the outstanding shares of Series A Preferred
\nStock will have the exclusive right, voting separately as a class without regard
\nto series, to designate a special class of two directors of the Corporation (the
\n“Special Directors”) at the next annual or special meeting of stockholders of
\nthe Corporation irrespective of whether such meeting otherwise would involve the
\nelection of directors, and the membership of the Board of Directors of the
\nCorporation shall be increased by the number of the Special Directors so
\ndesignated. Such right of the holders of Series A Preferred Stock to designate<\/p>\n
-14-
\n 74<\/p>\n
Special Directors will continue until all dividends accumulated and payable on
\nthe Series A Preferred Stock have been paid in full, at which time such right to
\ndesignate Special Directors will terminate, subject to re-vesting in the event
\nof a subsequent arrearage. Upon any termination of the aforesaid right of
\ndesignation, the term of office of all the Special Directors designated by
\nholders of Series A Preferred Stock will immediately terminate without action by
\nthe Corporation or the Board of Directors thereof.<\/p>\n
(d) In exercising the right to designate Special Directors set
\nforth in this paragraph 8 or when otherwise granted voting rights by operation
\nof law, each share of Series A Preferred Stock shall be entitled to one vote
\nexcept as otherwise provided in this certificate.<\/p>\n
(e) To the extent that the rights provided in this paragraph
\n8(e) do not prevent the continued listing for quotation on NASDAQ, of the Common
\nStock of the Corporation, then (i) for so long as KNE owns 80% or more of the
\nvoting power of the securities of the Corporation issued pursuant to the merger
\nof a subsidiary of the Corporation with and into K N Production Company (the
\n“Merger”) (such voting power being determined in accordance with paragraph 8(f)
\nbelow), KNE shall have the right to elect a special class of two directors to
\nthe Board of Directors of the Corporation, and (ii) for so long as KNE owns
\nsecurities of the Corporation issued pursuant to the Merger possessing less than
\n80% of the voting power of the securities of the Corporation issued pursuant to
\nthe merger (such voting power being determined in accordance with paragraph 8(f)
\nbelow), but more than 30% of such voting power, KNE shall have the right to
\nelect a special class of one director to the Board of Directors of the
\nCorporation.<\/p>\n
(f) So long as any shares of the Series A Preferred Stock
\nremain outstanding, the holders of shares of the Series A Preferred Stock shall
\nbe entitled to vote on all matters upon which holders of the Corporation’s
\nCommon Stock have the right to vote. In such voting, each share of Series A
\nPreferred Stock shall be entitled to a number of votes per share equivalent to
\nthe number of shares of Common Stock issuable upon conversion of the Series A
\nPreferred Stock and shall vote together with the holder of the outstanding
\nshares of the Corporation’s Common Stock as if a part of that class.<\/p>\n
Without limiting the generality of actions with respect to
\nwhich the Series A Preferred Stock has no voting rights except as set forth in
\nthis paragraph 8, no consent of holders of the Series A Preferred Stock shall be
\nrequired for (i) the creation of any indebtedness of any kind of the
\nCorporation, or (ii) the authorization or issuance of any class of capital stock
\nof the Corporation ranking junior to the Series A Preferred Stock in payment of
\ndividends or upon liquidation, dissolution or winding up of the Corporation.<\/p>\n
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
\nduly executed on its behalf by its undersigned Vice President this 29th day of
\nDecember, 1995.<\/p>\n
\/s\/ Cliff Drescher
\n ——————————
\n Cliff Drescher, Vice President<\/p>\n
-15-
\n 75<\/p>\n
CERTIFICATE OF AMENDMENT
\n TO THE
\n CERTIFICATE OF INCORPORATION
\n OF
\n TOM BROWN, INC.<\/p>\n
Tom Brown, Inc., a corporation organized and existing under the General
\nCorporation Law of the State of Delaware (the “Corporation”), does hereby
\ncertify as follows:<\/p>\n
Pursuant to the provisions of the Delaware General Corporation Law, the
\nBoard of Directors and the stockholders of the Corporation adopted an amendment
\nto the Certificate of Incorporation of the Corporation, which is set forth in
\nthe following resolution in accordance with Section 242 of the Delaware General
\nCorporation Law, the purpose of which amendment is to increase the number of
\nauthorized shares of Common Stock:<\/p>\n
“RESOLVED, That the Certificate of Incorporation of the Corporation be
\n amended by changing the first sentence of Article Fourth thereof, so
\n that as amended, the first sentence of Article Fourth shall read as
\n follows:<\/p>\n
FOURTH: The total number of shares of all classes that the
\n Corporation shall have authority to issue is 42,500,000, of
\n which 2,500,000 shares shall be Preferred Stock, par value
\n $.10 per share, and 40,000,000 shares shall be Common Stock,
\n $.10 par value per share.<\/p>\n
Except as specifically amended hereby, all other provisions of Article
\nFourth shall remain in full force and effect.<\/p>\n
IN WITNESS WHEREOF, Tom Brown, Inc. has caused this Certificate of
\nAmendment to be signed by Donald L. Evans, its Chairman of the Board of
\nDirectors, and attested by Kim Harris, its Assistant Secretary, this 22nd day of
\nMay, 1996.<\/p>\n
TOM BROWN, INC.<\/p>\n
By: \/s\/ Donald L. Evans
\n ——————————-
\n Donald L. Evans, Chairman of
\n the Board of Directors<\/p>\n
ATTESTED:<\/p>\n
\/s\/ Kim Harris
\n——————————-
\nKim Harris, Assistant Secretary<\/p>\n
76<\/p>\n
The undersigned Chairman of the Board of Directors of Tom Brown, Inc.,
\nbeing duly sworn, does verify that the foregoing instrument represents the act
\nand deed of Tom Brown, Inc. and that the facts stated in such instrument are
\ntrue.<\/p>\n
\/s\/ Donald L. Evans
\n —————————-
\n Donald L. Evans, Chairman of
\n the Board of Directors<\/p>\n
STATE OF TEXAS )
\n )
\nCOUNTY OF MIDLAND )<\/p>\n
Before me, the undersigned authority, on this day personally appeared
\nDONALD L. EVANS and KIM HARRIS, Chairman of the Board of Directors and Assistant
\nSecretary, respectively, of Tom Brown, Inc., a corporation formed under the laws
\nof the State of Delaware, known to me to be the individuals whose names are
\nsubscribed to the foregoing instrument, and acknowledged and swore to me that
\nthey each executed the same for the purposes and consideration therein expressed
\nand as the act and deed of said corporation and that the facts stated in the
\nforegoing instrument are true.<\/p>\n
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 22nd day of May, 1996.<\/p>\n
\/s\/ Carolyn Vannoy
\n —————————–
\n Name: Carolyn Vannoy
\n Notary Public in and for
\n the State of Texas<\/p>\n
-2-<\/p>\n
77<\/p>\n
[TBI PRODUCTION COMPANY]<\/p>\n
CERTIFICATE OF OWNERSHIP AND MERGER
\n MERGING SUBSIDIARY CORPORATION
\n INTO PARENT CORPORATION<\/p>\n
Pursuant to the provisions of Section 253 of the Delaware General
\nCorporation Law, Tom Brown, Inc., a Delaware corporation (the “Parent
\nCorporation”), does hereby certify:<\/p>\n
FIRST: That the Parent Corporation was incorporated and duly organized
\npursuant to the General Corporation Law of the State of Delaware.<\/p>\n
SECOND: The Parent Corporation owns all of the outstanding shares of
\neach class of capital stock of TBI Production Company, a Delaware corporation
\n(the “Subsidiary”).<\/p>\n
THIRD: A copy of the resolutions duly adopted by the Board of Directors
\nof the Parent Corporation to merge the Subsidiary into the Parent Corporation is
\nattached hereto as Exhibit A. Such resolutions were adopted as of November 19,
\n1998, and remain in full force and effect as of the date hereof.<\/p>\n
IN WITNESS WHEREOF, said Parent Corporation has caused this Certificate
\nto be signed by Peter R. Scherer, its Executive Vice President – Southern
\nRegion, this 23rd day of November, 1998.<\/p>\n
TOM BROWN, INC.<\/p>\n
By: \/s\/ Peter R. Scherer
\n ————————————-
\n Peter R. Scherer, Executive Vice
\n President – Southern Region<\/p>\n
78<\/p>\n
EXHIBIT A<\/p>\n
WHEREAS, Tom Brown, Inc. (the “Corporation”) owns all of the
\n outstanding shares of Common Stock, par value $.01 per share (the
\n “Common Stock”), of TBI Production Company, a Delaware corporation (the
\n “Subsidiary”), and no other shares of any capital stock of the
\n Subsidiary are outstanding;<\/p>\n
WHEREAS, the Corporation desires to merge the Subsidiary into
\n itself, with the Corporation being the surviving corporation;<\/p>\n
NOW, THEREFORE, BE IT RESOLVED, that the Subsidiary be merged
\n into the Corporation (the “Merger”) and that when the Merger becomes
\n effective upon the filing of a Certificate of Ownership and Merger with
\n the Delaware Secretary of State, the separate existence of the
\n Subsidiary shall cease;<\/p>\n
RESOLVED FURTHER, that when the Merger becomes effective upon
\n the filing of a Certificate of Ownership and Merger with the Delaware
\n Secretary of State, each share of common stock of the Subsidiary shall
\n cease to exist, the holder of such shares shall cease to have any
\n rights with respect thereto, and all certificates representing such
\n shares shall be cancelled;<\/p>\n
RESOLVED FURTHER, that the proper officers of the Corporation
\n be, and they hereby are, authorized in the name and on behalf of the
\n Corporation to do and perform or to cause to be done and performed all
\n acts and things as such officer or officers shall deem necessary,
\n advisable, or appropriate to implement the foregoing resolutions, and
\n to execute and deliver any and all agreements, certificates,
\n directives, representations, issuances and other instruments or
\n documents of every character, including, without limitation, executing,
\n acknowledging, and filing a Certificate of Ownership and Merger in
\n accordance with the provisions of the Delaware General Corporation Law,
\n and to do and perform or cause to be done or performed any and all
\n other acts and things as such officer or officers of the Corporation
\n shall deem necessary, advisable or appropriate to comply with the
\n purposes and intent of the foregoing resolutions; and<\/p>\n
RESOLVED FURTHER, that any and all action taken by any officer
\n of the Corporation in effecting the purposes of the foregoing
\n resolutions is hereby ratified, approved, confirmed and adopted in all
\n respects.<\/p>\n
79<\/p>\n
[TBI EXPLORATION, INC.]<\/p>\n
CERTIFICATE OF OWNERSHIP AND MERGER
\n MERGING SUBSIDIARY CORPORATION
\n INTO PARENT CORPORATION<\/p>\n
Pursuant to the provisions of Section 253 of the Delaware General
\nCorporation Law, Tom Brown, Inc., a Delaware corporation (the “Parent
\nCorporation”), does hereby certify:<\/p>\n
FIRST: That the Parent Corporation was incorporated and duly organized
\npursuant to the General Corporation Law of the State of Delaware.<\/p>\n
SECOND: The Parent Corporation owns all of the outstanding shares of
\neach class of capital stock of TBI Exploration, Inc., a Colorado corporation
\n(the “Subsidiary”).<\/p>\n
THIRD: A copy of the resolutions duly adopted by the Board of Directors
\nof the Parent Corporation to merge the Subsidiary into the Parent Corporation is
\nattached hereto as Exhibit A. Such resolutions were adopted as of November 19,
\n1998, and remain in full force and effect as of the date hereof.<\/p>\n
IN WITNESS WHEREOF, said Parent Corporation has caused this Certificate
\nto be signed by Peter R. Scherer, its Executive Vice President – Southern
\nRegion, this 23rd day of November, 1998.<\/p>\n
TOM BROWN, INC.<\/p>\n
By: \/s\/ Peter R. Scherer
\n ———————————
\n Peter R. Scherer, Executive Vice
\n President – Southern Region<\/p>\n
80<\/p>\n
EXHIBIT A<\/p>\n
WHEREAS, Tom Brown, Inc. (the “Corporation”) owns all of the
\n outstanding shares of Common Stock, par value $1.00 per share (the
\n “Common Stock”), of TBI Exploration, Inc., a Colorado corporation (the
\n “Subsidiary”), and no other shares of any capital stock of the
\n Subsidiary are outstanding;<\/p>\n
WHEREAS, the Corporation desires to merge the Subsidiary into
\n itself, with the Corporation being the surviving corporation;<\/p>\n
NOW, THEREFORE, BE IT RESOLVED, that the Subsidiary be merged
\n into the Corporation (the “Merger”) and that when the Merger becomes
\n effective upon the filing of a Certificate of Ownership and Merger with
\n the Delaware Secretary of State, and the filing of Articles of Merger
\n with the Colorado Secretary of State, the separate existence of the
\n Subsidiary shall cease;<\/p>\n
RESOLVED FURTHER, that when the Merger becomes effective upon
\n the filing of a Certificate of Ownership and Merger with the Delaware
\n Secretary of State, and the filing of Articles of Merger with the
\n Colorado Secretary of State, each share of common stock of the
\n Subsidiary shall cease to exist, the holder of such shares shall cease
\n to have any rights with respect thereto, and all certificates
\n representing such shares shall be cancelled;<\/p>\n
RESOLVED FURTHER, that the proper officers of the Corporation
\n be, and they hereby are, authorized in the name and on behalf of the
\n Corporation to do and perform or to cause to be done and performed all
\n acts and things as such officer or officers shall deem necessary,
\n advisable, or appropriate to implement the foregoing resolutions, and
\n to execute and deliver any and all agreements, certificates,
\n directives, representations, issuances and other instruments or
\n documents of every character, including, without limitation, executing,
\n acknowledging, and filing a Certificate of Ownership and Merger in
\n accordance with the provisions of the Delaware General Corporation Law,
\n and the filing of Articles of Merger with the Colorado Secretary of
\n State, and to do and perform or cause to be done or performed any and
\n all other acts and things as such officer or officers of the
\n Corporation shall deem necessary, advisable or appropriate to comply
\n with the purposes and intent of the foregoing resolutions; and<\/p>\n
RESOLVED FURTHER, that any and all action taken by any officer
\n of the Corporation in effecting the purposes of the foregoing
\n resolutions is hereby ratified, approved, confirmed and adopted in all
\n respects.<\/p>\n
81<\/p>\n
[TBI OIL COMPANY]<\/p>\n
CERTIFICATE OF OWNERSHIP AND MERGER
\n MERGING SUBSIDIARY CORPORATION
\n INTO PARENT CORPORATION<\/p>\n
Pursuant to the provisions of Section 253 of the Delaware General
\nCorporation Law, Tom Brown, Inc., a Delaware corporation (the “Parent
\nCorporation”), does hereby certify:<\/p>\n
FIRST: That the Parent Corporation was incorporated and duly organized
\npursuant to the General Corporation Law of the State of Delaware.<\/p>\n
SECOND: The Parent Corporation owns all of the outstanding shares of
\neach class of capital stock of TBI Oil Company, a Delaware corporation (the
\n“Subsidiary”).<\/p>\n
THIRD: A copy of the resolutions duly adopted by the Board of Directors
\nof the Parent Corporation to merge the Subsidiary into the Parent Corporation is
\nattached hereto as Exhibit A. Such resolutions were adopted as of November 19,
\n1998, and remain in full force and effect as of the date hereof.<\/p>\n
IN WITNESS WHEREOF, said Parent Corporation has caused this Certificate
\nto be signed by Peter R. Scherer, its Executive Vice President – Southern
\nRegion, this 23rd day of November, 1998.<\/p>\n
TOM BROWN, INC.<\/p>\n
By: \/s\/ Peter R. Scherer
\n ———————————–
\n Peter R. Scherer, Executive Vice
\n President – Southern Region<\/p>\n
82<\/p>\n
EXHIBIT A<\/p>\n
WHEREAS, Tom Brown, Inc. (the “Corporation”) owns all of the
\n outstanding shares of Common Stock, par value $.01 per share (the
\n “Common Stock”), of TBI Oil Company, a Delaware corporation (the
\n “Subsidiary”), and no other shares of any capital stock of the
\n Subsidiary are outstanding;<\/p>\n
WHEREAS, the Corporation desires to merge the Subsidiary into
\n itself, with the Corporation being the surviving corporation;<\/p>\n
NOW, THEREFORE, BE IT RESOLVED, that the Subsidiary be merged
\n into the Corporation (the “Merger”) and that when the Merger becomes
\n effective upon the filing of a Certificate of Ownership and Merger with
\n the Delaware Secretary of State, the separate existence of the
\n Subsidiary shall cease;<\/p>\n
RESOLVED FURTHER, that when the Merger becomes effective upon
\n the filing of a Certificate of Ownership and Merger with the Delaware
\n Secretary of State, each share of common stock of the Subsidiary shall
\n cease to exist, the holder of such shares shall cease to have any
\n rights with respect thereto, and all certificates representing such
\n shares shall be cancelled;<\/p>\n
RESOLVED FURTHER, that the proper officers of the Corporation
\n be, and they hereby are, authorized in the name and on behalf of the
\n Corporation to do and perform or to cause to be done and performed all
\n acts and things as such officer or officers shall deem necessary,
\n advisable, or appropriate to implement the foregoing resolutions, and
\n to execute and deliver any and all agreements, certificates,
\n directives, representations, issuances and other instruments or
\n documents of every character, including, without limitation, executing,
\n acknowledging, and filing a Certificate of Ownership and Merger in
\n accordance with the provisions of the Delaware General Corporation Law,
\n and to do and perform or cause to be done or performed any and all
\n other acts and things as such officer or officers of the Corporation
\n shall deem necessary, advisable or appropriate to comply with the
\n purposes and intent of the foregoing resolutions; and<\/p>\n
RESOLVED FURTHER, that any and all action taken by any officer
\n of the Corporation in effecting the purposes of the foregoing
\n resolutions is hereby ratified, approved, confirmed and adopted in all
\n respects.<\/p>\n
83<\/p>\n
CERTIFICATE OF AMENDMENT
\n TO THE
\n CERTIFICATE OF INCORPORATION
\n OF
\n TOM BROWN, INC.<\/p>\n
Tom Brown, Inc., a corporation organized and existing under
\nthe General Corporation Law of the State of Delaware (the “Corporation”), does
\nhereby certify as follows:<\/p>\n
Pursuant to the provisions of the Delaware General Corporation
\nLaw, the Board of Directors and the stockholders of the Corporation adopted an
\namendment to the Certificate of Incorporation of the Corporation, which is set
\nforth in the following resolution in accordance with Section 242 of the Delaware
\nGeneral Corporation Law, the purpose of which amendment is to increase the
\nnumber of authorized shares of Common Stock:<\/p>\n
“RESOLVED, That the Certificate of Incorporation of the
\n Corporation be amended by changing the first sentence of
\n Article Fourth thereof, so that as amended, the first sentence
\n of Article Fourth shall read as follows:<\/p>\n
FOURTH: The total number of shares of all classes
\n that the Corporation shall have authority to issue is
\n 57,500,000, of which 2,500,000 shares shall be Preferred
\n Stock, par value $.10 per share, and 55,000,000 shares shall
\n be Common Stock, $.10 par value per share.<\/p>\n
Except as specifically amended hereby, all other provisions of Article
\nFourth shall remain in full force and effect.<\/p>\n
IN WITNESS WHEREOF, Tom Brown, Inc. has caused this Certificate of
\nAmendment to be signed by Donald L. Evans, its Chairman of the Board of
\nDirectors, and attested by Bruce R. DeBoer, its Secretary, this 25th day of May,
\n1999.<\/p>\n
TOM BROWN, INC.<\/p>\n
By: \/s\/ Donald L. Evans
\n ——————————
\n Donald L. Evans, Chairman of
\n the Board of Directors<\/p>\n
ATTESTED:<\/p>\n
\/s\/ Bruce R. DeBoer
\n————————–
\nBruce R. DeBoer, Secretary<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6962],"corporate_contracts_industries":[9409],"corporate_contracts_types":[9573,9575],"class_list":["post-41628","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-brown-tom-inc","corporate_contracts_industries-energy__exploration","corporate_contracts_types-formation","corporate_contracts_types-formation__incorporation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41628","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41628"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41628"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41628"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41628"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}