\n Company Preamble<\/p>\n Conversion Price 2(c)<\/p>\n
Convertible Securities 2(c)C(i)<\/p>\n
Liquidation Value 1<\/p>\n
Options 2(c)C(i)<\/p>\n
Series A Shares Preamble
\n<\/c><\/s><\/caption>\n<\/table>\n
(b) As used herein, the following terms shall have the
\n following meanings:<\/p>\n
“Common Shares” shall mean and include the shares of Common
\n Stock, par value $0.10 per share, of the Company as constituted on the
\n date of the original issue of the Series A Shares and shall also
\n include any class of shares of capital stock of the Company thereafter
\n authorized that shall not be limited to a fixed sum or percentage in
\n respect of the right of the holders thereof to receive dividends or to
\n participate in the assets of the Company distributable to shareholders
\n upon any liquidation, dissolution or winding up of the Company;
\n provided, however, that the shares into which the Series A Shares
\n shall be convertible pursuant to Section 2 hereof shall mean and
\n include, and, as used in Section 2 hereof, the term “Common Shares”
\n shall mean and include, only the Common Stock, par value $0.10 per
\n share, of the Company as constituted on the date of the original issue
\n of the Series A Shares or (i) in the case of any reclassification,
\n change, consolidation, merger, sale or conveyance of the character
\n referred to in Section 2(e) hereof, the shares or other securities or
\n property deliverable in lieu thereof or (ii) in the case of any change
\n or reclassification of the outstanding Common Shares issuable upon
\n conversion of the Series A Shares as a result of a subdivision or
\n combination or consisting of a change in par value, or from par value
\n to no par value,<\/p>\n
16
\n 25
\n or from no par value to par value, such Common Shares as so changed or
\n reclassified.<\/p>\n
“Junior Shares” shall mean (i) Common Shares and (ii) all
\n those classes and series of preferred or special shares which, by the
\n terms of the Certificate of Incorporation of the Company, shall be
\n subordinate to the Series A Shares with respect to the right of the
\n holders thereof to participate in the assets of the Company
\n distributable to shareholders upon any liquidation, dissolution or
\n winding up of the Company.<\/p>\n
“Market Price” of any security shall mean the average of the
\n closing prices of such security’s sales on all securities exchanges on
\n which such security may at the time be listed, or, if there have been
\n no sales on any such exchange on any day, the average of the highest
\n bid and lowest asked prices on all such exchanges at the end of such
\n date, or, if on any day such security is not so listed, the average of
\n the representative bid and asked prices quoted in the NASDAQ System as
\n of 4:00 p.m., New York time, or, if on any day such security is not
\n quoted in the NASDAQ System, the average of the high and low bid and
\n asked prices on such day in the domestic over-the-counter market as
\n reported by the National Quotation Bureau, Inc., or any similar
\n successor organization, in each such case averaged over a period of 21
\n days consisting of the day as of which “Market Price” is being
\n determined and the 20 consecutive business days prior to such date.
\n If at any time such security is not listed on any securities exchange
\n or quoted in the NASDAQ System or the over-the-counter market, the
\n “Market Price” of such security shall be the fair value thereof
\n determined in good faith by the Board of Directors of the Company.<\/p>\n
“Parity Shares” shall mean all those classes and series of
\n preferred or special shares which, by the terms of the Certificate of
\n Incorporation of the Company, shall be on a parity with the Series A
\n Shares with respect to the right of the holders thereof to participate
\n in the assets of the Company distributable to shareholders upon any
\n liquidation, dissolution or winding up of the Company.<\/p>\n
“Senior Shares” shall mean all those classes and series of
\n preferred or special shares which, by the terms of the Certificate of
\n Incorporation of the Company, shall be senior to the Series A Shares
\n with respect to the right of the holders thereof to participate in the
\n assets of the Company distributable to shareholders upon any
\n liquidation, dissolution or winding up of the Company.<\/p>\n
17
\n 26
\n “Subsidiary” shall mean any entity of which shares of stock or
\n other equity interests having at least a majority of the ordinary
\n voting power in electing the board of directors or similar governing
\n body are, at the time as of which any determination is being made,
\n owned by the Company either directly or indirectly through one or more
\n Subsidiaries.<\/p>\n
8. Miscellaneous.<\/p>\n
(a) If any other class or series of preferred or special
\n shares of the Company, whether ranking prior to or on a parity with or
\n junior to the Series A Shares as to dividends or assets, shall be
\n created, nothing herein shall prevent the holders of any such other
\n class or series of preferred or special shares from being given any
\n designations, preferences, limitations or relative rights authorized
\n by law and the Certificate of Incorporation of the Company, except as
\n otherwise expressly provided herein with respect to the foregoing
\n matters.<\/p>\n
(b) All notices or other communications referred to herein,
\n except as otherwise expressly provided, shall be hand delivered or
\n given by registered or certified mail, return receipt requested,
\n postage prepaid, and shall be deemed to have been given when so hand
\n delivered or mailed.<\/p>\n
DATED this 8th day of April, 1987.<\/p>\n
\/s\/ Donald L. Evans
\n ——————————-
\n Donald L. Evans, President<\/p>\n
\/s\/ James M. Alsup
\n– – ——————————–
\nJames M. Alsup, Secretary<\/p>\n
18
\n 27<\/p>\n
CERTIFICATE OF MERGER
\n MERGING
\n TOM BROWN, INC.
\n A NEVADA CORPORATION
\n INTO
\n TOM BROWN, INC.
\n A DELAWARE CORPORATION<\/p>\n
(Pursuant to Section 252 of the General Corporation
\n Law of the State of Delaware)<\/p>\n
Tom Brown, Inc., a corporation organized under the laws of the State
\nof Delaware, does hereby certify that:<\/p>\n
1. The names and states of incorporation of each of the
\nconstituent corporations are:<\/p>\n
Name of Corporation State
\n ——————- —–<\/p>\n
Tom Brown, Inc. Nevada<\/p>\n
Tom Brown, Inc. Delaware<\/p>\n
2. A Plan and Agreement of Merger has been approved, adopted,
\ncertified, executed and acknowledged by each of the constituent corporations in
\naccordance with Section 252(c) of the General Corporation Law of the State of
\nDelaware.<\/p>\n
3. The name of the surviving corporation is Tom Brown, Inc., a
\nDelaware corporation.<\/p>\n
4. The Certificate of Incorporation of Tom Brown, Inc., a
\nDelaware corporation, shall be the Certificate of Incorporation of the
\nsurviving corporation.<\/p>\n
5. The executed Plan and Agreement of Merger is on file at the
\nprincipal place of business of the surviving corporation as follows:<\/p>\n
Tom Brown, Inc.
\n 500 Empire Plaza
\n Midland, Texas 79701<\/p>\n
6. A copy of the Plan and Agreement of Merger will be furnished
\nby the surviving corporation on request and without cost, to any stockholder of
\nany constituent corporation.<\/p>\n
7. The authorized capital stock of Tom Brown Inc., Nevada, is
\n150,000,000 shares, of which 100,000,000 shares are common stock and 50,000,000
\nshares are preferred stock.<\/p>\n
28
\n IN WITNESS WHEREOF, said Tom Brown, Inc., a Delaware corporation, has
\ncaused this certificate to be signed by Donald L. Evans, its President, and
\nattested by James M. Alsup, its Secretary, this 9th day of April, 1987.<\/p>\n
By: \/s\/ Donald L. Evans
\n ———————————–
\n Donald L. Evans, President<\/p>\n
ATTEST:<\/p>\n
\/s\/ James M. Alsup
\n– – ——————————
\nJames M. Alsup, Secretary<\/p>\n
THE STATE OF TEXAS )
\n )
\nCOUNTY OF MIDLAND ) <\/p>\n
This instrument was acknowledged before me on April 9, 1987, by Donald
\nL. Evans, President of Tom Brown, Inc., a Delaware corporation, on behalf of
\nsaid Corporation.<\/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
My Commission Expires:
\n 10\/23\/89
\n– – ————————<\/p>\n
29<\/p>\n
CERTIFICATE OF OWNERSHIP AND MERGER
\n MERGING
\n TBI MANAGEMENT, INC.
\n INTO
\n TOM BROWN, INC.,
\n A DELAWARE CORPORATION<\/p>\n
(Pursuant to Sections 253 of the
\n General Corporation Law of the State of Delaware)<\/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 that:<\/p>\n
1. Tom Brown, Inc. is the parent corporation of TBI Management,
\nInc., a Texas corporation, and Tom Brown, Inc. owns 100% of the outstanding
\nshares of stock of TBI Management, Inc., and therefore is entitled to Merge TBI
\nManagement, Inc. into Tom Brown, Inc. under the provisions of Section 253 of
\nthe General Corporation Law of the State of Delaware.<\/p>\n
2. The provision for making this Certificate of Ownership and
\nMerger is contained in the Tom Brown, Inc. Unanimous Consent of Directors,
\nattached hereto as Exhibit “A”.<\/p>\n
3. The names and state of incorporation of each of the
\nconstituent corporations are:<\/p>\n
Name of Corporation State
\n ——————- —–<\/p>\n
TBI Management, Inc. Texas<\/p>\n
Tom Brown, Inc. Delaware<\/p>\n
4. The name of the surviving corporation is Tom Brown, Inc., a
\nDelaware corporation.<\/p>\n
5. The principal place of business of the surviving corporation
\nis:<\/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
\nby its 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
\n 30<\/p>\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, TBI Management, 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 TBI Management, Inc.<\/p>\n
“RESOLVED, That the Corporation shall be the surviving corporation in
\n such merger, and that TBI Management, 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
31<\/p>\n
CERTIFICATE OF OWNERSHIP AND MERGER
\n MERGING
\n GENERAL RESOURCES, INC.
\n INTO
\n TOM BROWN, INC.,
\n A DELAWARE CORPORATION<\/p>\n
(Pursuant to Sections 253 of the
\n General Corporation Law of the State of Delaware)<\/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 that:<\/p>\n
1. Tom Brown, Inc. is the parent corporation of General
\nResources, Inc., a Texas corporation, and Tom Brown, Inc. owns 100% of the
\noutstanding shares of stock of General Resources, Inc., and therefore is
\nentitled to merge General Resources, Inc. into Tom Brown, Inc. under the
\nprovisions of Section 253 of the General Corporation Law of the State of
\nDelaware.<\/p>\n
2. The provision for making this Certificate of Ownership and
\nMerger is contained in the Tom Brown, Inc. Unanimous Consent of Directors,
\nattached hereto as Exhibit A.<\/p>\n
3. The names and state of incorporation of each of the
\nconstituent corporations are:<\/p>\n
Name of Corporation State
\n ——————- —–<\/p>\n
General Resources, Inc. Texas<\/p>\n
Tom Brown, Inc. Delaware<\/p>\n
4. The name of the surviving corporation is Tom Brown, Inc., a
\nDelaware corporation.<\/p>\n
5. The principal place of business of the surviving corporation
\nis:<\/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
\nby its 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
\n 32
\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
33<\/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
\nGeneral Corporation Law of the State of Delaware (the “Corporation”) does
\nhereby certify as 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
\nDelaware General 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 non-assessable.<\/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
\n 34
\n stated and expressed in a resolution or resolutions
\n providing for the creation or revision of such Series
\n Terms set forth in a Certificate of Designations (a
\n “Preferred Stock Series Resolution”) adopted by the
\n Board of Directors; provided that all shares of any
\n one series of Preferred Stock so designated by the
\n Board of Directors shall be identical in all respects
\n except that shares of any one series issued at
\n different times may differ as to the dates from which
\n dividends thereon may be cumulative. The powers of
\n the Board of Directors with respect to the Series
\n Terms of a particular series shall include, but not
\n be limited to, determination 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 or
\n purchase of shares;<\/p>\n
7. The terms and conditions on which shares may
\n be converted, if the shares of any series are
\n issued with the privilege of conversion;<\/p>\n
8. Voting rights, if any; and<\/p>\n
2
\n 35
\n 9. Repurchase obligations of the Corporation
\n with respect to the shares of each series.<\/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 capital
\n stock ranking on a parity with the Common
\n Stock or cash in lieu of fractional shares
\n with respect to such stock dividend) shall be
\n declared or paid on any share or shares of
\n any class of stock or series thereof ranking
\n on a<\/p>\n
3
\n 36
\n parity with the Common Stock in respect of
\n payment of dividends for any dividend period
\n unless there shall have been declared, for the
\n same dividend period, like proportionate
\n dividends on all shares of Common Stock then
\n outstanding.<\/p>\n
2. Liquidation. In the event of any
\n liquidation, dissolution or winding up of the
\n Corporation, whether voluntary or
\n involuntary, after payment or provision for
\n payment of the debts and other liabilities of
\n the Corporation and after payment of any
\n preferential amount due to the holders of any
\n other class or series of stock, the holders
\n of the Common Stock shall be entitled to
\n receive ratably any or all assets remaining
\n 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 at
\n all meetings of shareholders to one vote for
\n 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
\n shares “ranking junior to” another class of stock,
\n such<\/p>\n
4
\n 37
\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
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
\n Corporation shall at all times reserve and keep
\n available, out of its authorized but unissued shares
\n of Common Stock or out of shares of Common Stock held
\n in its treasury, the full number of shares of Common
\n Stock into which all shares of any series of
\n Preferred Stock having conversion privileges from
\n time to time outstanding 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
5
\n 38
\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 subscribe
\n for or receive any shares of any class, or
\n series thereof, of stock of the Corporation,
\n whether now or hereafter authorized, or any
\n warrants, options, bonds, debentures or other
\n securities convertible into, exchangeable for
\n or carrying any right to purchase any shares
\n of any class, or series thereof, of stock;
\n but such additional shares of stock and such
\n warrants, options, bonds, debentures or other
\n securities convertible into, exchangeable for
\n or carrying any right to purchase any shares
\n of 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 shares
\n of Common Stock of the Corporation hereafter
\n acquired by the Corporation and held as
\n 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
\nCorporation Law, the Board of Directors and the stockholders of the Corporation
\nadopted an amendment to the Certificate of<\/p>\n
6
\n 39
\nDesignations, Preferences and Rights of Serial Preferred Stock Series A
\nNon-Voting Convertible 6% Cumulative Preferred Stock filed April 9, 1987 with
\nthe Delaware Secretary of State and authorizing the creation and issuance of an
\naggregate of 22,000,000 shares of Series A Non-Voting Convertible 6% Cumulative
\nPreferred Stock, which is set forth in the following resolution in accordance
\nwith Section 242 of the Delaware General Corporation Law, the purpose of which
\namendment is to effect a one-for-twenty reverse stock split:<\/p>\n
“RESOLVED, That the Certificate of Designations, Preferences and
\n Rights 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 first paragraph of the
\n resolution creating the series of serial preferred stock designated as
\n the Series A Non-Voting Convertible 6% Cumulative Preferred Stock, so
\n that as amended, said paragraph shall 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
\n Rights 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
\n paragraph 1 thereof, so that as amended, said paragraph 1 shall read
\n 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<\/p>\n
7
\n 40
\n winding up of the Company, the holders of the Series A
\n Shares shall be entitled, in conjunction with any
\n provision then being made for the holders of Parity
\n Shares, if any, to have set apart for them or to be paid
\n out of the assets of the Company, after payment or
\n provision for payment of the debts and other liabilities
\n of the Company and after provision for the holders of
\n Senior Shares, if any, but before any distribution is made
\n to or set apart for the holders of Junior Shares, an
\n amount in cash equal to $22.7280 per Series A Share (as
\n adjusted for any stock split, reverse stock split, stock
\n dividend or similar event resulting in a change in the
\n Series A Shares) (the “Liquidation Value”), together with
\n all dividends accrued on such Series A Shares to the date
\n of payment, irrespective of whether such dividends were
\n earned, declared or legally available, and the holders of
\n the Series A Shares shall not be entitled to any further
\n payment in connection with the voluntary or involuntary
\n liquidation, dissolution or winding up of the Company
\n except as expressly provided for in this resolution. If,
\n upon such liquidation, dissolution or winding up of the
\n Company, the assets of the Company available for
\n distribution to the holders of the Series A Shares and the
\n holders of Parity Shares, if any, shall be insufficient to
\n permit the distribution in full of the amounts receivable
\n as aforesaid by the holders of the Series A Shares and the
\n amounts receivable by the holders of Parity Shares, if
\n any, then all such assets of the Company shall be
\n distributed ratably among the holders of the Series A
\n Shares and the holders of Parity Shares, if any, in
\n proportion to the amounts that each would have been
\n entitled to receive if such assets were sufficient to
\n permit distribution in full as aforesaid. Neither the
\n consolidation or merger of the Company with or into any
\n corporation or corporations, nor the sale, lease or
\n transfer by the Company of all or any part of its assets,
\n nor the reduction of the authorized or issued shares of
\n the Company of any class, whether now or hereafter
\n authorized, shall be deemed to be a liquidation,
\n dissolution or winding up of the Company for the purposes
\n of this Section 1. Written notice of any voluntary or
\n involuntary<\/p>\n
8
\n 41
\n liquidation, dissolution or winding up of the Company,
\n setting the payment date and the place where the amounts
\n to be distributed shall be paid and containing a reference
\n to the conversion option granted by Section 2 hereof,
\n shall be given not less than thirty (30) days prior to the
\n payment date stated therein to the holders of record of
\n the Series A Shares at their respective addresses as the
\n same shall appear on the stock ledger of the Company.”<\/p>\n
“RESOLVED, That the Certificate of Designations, Preferences and
\n Rights 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
\n paragraph 2(a) thereof, so that as amended, said paragraph 2(a) shall
\n read as follows:<\/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
\n names (with addresses) in which the certificate or
\n certificates for Common Shares shall be issued. The number of
\n Common Shares that any such holder shall receive in return for
\n each Series A Share converted by such holder shall be computed
\n by dividing (x) $22.7280 (as adjusted for any stock split,
\n reverse stock split, stock dividend or similar event<\/p>\n
9
\n 42
\n resulting in a change in the Series A Shares) by (y) the
\n Conversion Price then in effect.”<\/p>\n
“RESOLVED, That the Certificate of Designations, Preferences and
\n Rights 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
\n as follows:<\/p>\n
2.(c) The initial Conversion Price shall be $5.6820.”<\/p>\n
“RESOLVED, That the Certificate of Designations, Preferences and
\n Rights 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
\n follows:<\/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
10
\n 43
\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
\nof shares of common stock into which the shares of common stock represented by
\nsuch certificate shall be combined, and each certificate that theretofore
\nrepresented shares of Series A Non-Voting Convertible 6% Cumulative preferred
\nstock prior to the filing of this Certificate of Amendment shall thereafter
\nrepresent the number of shares of Series A Non-Voting Convertible 6% Cumulative
\npreferred stock into which the shares of Series A Non-Voting Convertible 6%
\nCumulative preferred stock represented by such certificate shall be combined.
\nTo the extent a shareholder holds a number of shares of common stock not evenly
\ndivisible by twenty, such shareholder will receive cash for each fractional
\ninterest resulting 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
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 44<\/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
\nwhose names are subscribed to the foregoing instrument, and acknowledged and
\nswore to me that they each executed the same for the purposes and consideration
\ntherein expressed and as the act and deed of said corporation and that the
\nfacts stated in 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 45<\/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
\nGeneral 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 Law,
\nthe 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
\nDelaware General Corporation Law, the purpose of which amendment is to increase
\nthe number of authorized 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
\n 46
\n and all respects and shall be such as are stated and
\n expressed in a resolution or resolutions providing
\n for the creation or revision of such Series Terms set
\n forth in a Certificate of Designations (a “Preferred
\n Stock Series Resolution”) adopted by the Board of
\n Directors; provided that all shares of any one series
\n of Preferred Stock so designated by the Board of
\n Directors shall be identical in all respects except
\n that shares of any one series issued at different
\n times may differ as to the dates from which dividends
\n thereon may be cumulative. The powers of the Board
\n of Directors with respect to the Series Terms of a
\n particular series shall include, but not be limited
\n to, determination 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 or
\n purchase of shares;<\/p>\n
7. The terms and conditions on which shares may
\n be converted, if the shares of any series are
\n issued with the privilege of conversion;<\/p>\n
8. Voting rights, if any; and<\/p>\n
2
\n 47
\n 9. Repurchase obligations of the Corporation
\n with respect to the shares of each series.<\/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 capital
\n stock ranking on a parity with the Common
\n Stock or cash in lieu of fractional shares
\n with respect to such stock dividend) shall be
\n declared or paid on any share or shares of
\n any class of stock or series thereof ranking
\n on a<\/p>\n
3
\n 48
\n parity with the Common Stock in respect of
\n payment of dividends for any dividend period
\n unless there shall have been declared, for the
\n same dividend period, like proportionate
\n dividends on all shares of Common Stock then
\n outstanding.<\/p>\n
2. Liquidation. In the event of any
\n liquidation, dissolution or winding up of the
\n Corporation, whether voluntary or
\n involuntary, after payment or provision for
\n payment of the debts and other liabilities of
\n the Corporation and after payment of any
\n preferential amount due to the holders of any
\n other class or series of stock, the holders
\n of the Common Stock shall be entitled to
\n receive ratably any or all assets remaining
\n 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 at
\n all meetings of shareholders to one vote for
\n 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
\n shares “ranking junior to” another class of stock,
\n such<\/p>\n
4
\n 49
\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
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
\n Corporation shall at all times reserve and keep
\n available, out of its authorized but unissued shares
\n of Common Stock or out of shares of Common Stock held
\n in its treasury, the full number of shares of Common
\n Stock into which all shares of any series of
\n Preferred Stock having conversion privileges from
\n time to time outstanding 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 subscribe
\n for or receive any shares<\/p>\n
5
\n 50
\n of any class, or series thereof, of stock of the
\n Corporation, whether now or hereafter authorized,
\n or any warrants, options, bonds, debentures or
\n other securities convertible into, exchangeable
\n for or carrying any right to purchase any shares
\n of any class, or series thereof, of stock; but
\n such additional shares of stock and such
\n warrants, options, bonds, debentures or other
\n securities convertible into, exchangeable for or
\n carrying any right to purchase any shares of any
\n class, or series thereof, of stock may be issued
\n or disposed of by the Board of Directors to such
\n persons, and on such terms and for such lawful
\n consideration, as in its discretion it shall deem
\n 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 shares
\n of Common Stock of the Corporation hereafter
\n acquired by the Corporation and held as
\n 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
\n by the Delaware General Corporation Law.”<\/p>\n
6
\n 51
\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
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
\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
\nwhose names are subscribed to the foregoing instrument, and acknowledged and
\nswore to me that they each executed the same for the purposes and consideration
\ntherein expressed and as the act and deed of said corporation and that the
\nfacts stated in the foregoing 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 ——————————–
\n10\/27\/92 Name: Carolyn Vannoy
\n– – ———————- —————————
\n Notary Public in and for
\n the State of Texas<\/p>\n
7
\n 52<\/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,
\n which are applicable to the Preferred Stock of all classes and series)
\n are as follows:<\/p>\n
I. Designation and Amount. The shares of such series
\n shall be designated as the “Series B Preferred Stock” (the “Series B
\n Preferred Stock”) and the number of shares constituting such series
\n shall be three hundred thousand (300,000). Such number of shares may
\n be 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
\n the holders of any shares of any series of Preferred Stock
\n ranking prior and superior to the shares of Series B Preferred
\n Stock with respect to dividends, the holders of shares of
\n Series B Preferred Stock, in preference to the holders of
\n common stock, $.10 par value, of the corporation (the “Common
\n Stock”) and of any other stock ranking junior (as to
\n dividends) to Series B Preferred Stock, shall be entitled to
\n receive, when, as and if declared by the Board of Directors
\n out of funds legally available for the purpose, cumulative
\n quarterly dividends payable in
\n 53
\n cash or in kind, as hereinafter provided, on the last day of
\n March, June, September and December in each year (each such
\n date being referred to herein as a “Quarterly Dividend Payment
\n Date”), commencing on the first Quarterly Dividend Payment
\n Date after the first issuance of a share or fraction of a
\n share of Series B Preferred Stock, in an amount per share
\n (rounded to the nearest cent) equal to the greater of (a)
\n $1.00 (payable in cash) or (b) subject to the provision for
\n adjustment hereinafter set forth, 100 times the aggregate per
\n share amount (payable in cash) of all cash dividends, and 100
\n times the aggregate per share amount (payable in kind) of all
\n 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
\n at any time declare or pay any dividend on Common Stock
\n 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
\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
(C) Dividends shall begin to accrue and be
\n cumulative on outstanding shares of Series B Preferred Stock
\n from the Quarterly Dividend Payment Date next preceding the
\n date of issue of such shares of Series B Preferred Stock,
\n unless the date of issue of such shares is<\/p>\n
2
\n 54
\n prior to the record date for the first Quarterly Dividend
\n Payment Date, in which case dividends on such shares shall
\n begin to accrue from the date of issue of such shares, or
\n unless the date of issue is a Quarterly Dividend Payment Date
\n or is a date after the record date for the determination of
\n holders of shares of Series B Preferred Stock entitled to
\n receive a quarterly dividend and before such Quarterly
\n Dividend Payment Date, in either of which events such
\n dividends shall begin to accrue and be cumulative from such
\n Quarterly Dividend Payment Date. Accrued but unpaid dividends
\n shall not bear interest. Dividends paid on the shares of
\n Series B Preferred Stock in an amount less than the total
\n amount of such dividends at the time accrued and payable on
\n such shares shall be allocated pro rata on a share by share
\n basis among all such shares at the time outstanding. The
\n Board of Directors may fix a record date for the determination
\n of holders of shares of Series B Preferred Stock entitled to
\n receive a payment of a dividend or distribution declared
\n thereon, which record date shall be not more than 60 days
\n prior to the date fixed for the payment 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
(B) Except as otherwise provided in the
\n Certificate of Incorporation or by law, the holders of shares
\n of Series B Preferred Stock and the holders of shares of
\n Common Stock shall vote together as one class on all matters
\n submitted to a vote of shareholders of the corporation.<\/p>\n
3
\n 55
\n IV. Certain Restrictions.<\/p>\n
(A) Whenever quarterly dividends or other
\n dividends or distributions payable on the Series B Preferred
\n Stock as provided in Section II are in arrears, thereafter and
\n until all accrued and unpaid dividends and distributions,
\n whether or 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
\n any 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
\n any other distributions on any shares of stock
\n ranking on a parity (as to dividends) with the Series
\n B Preferred Stock, except dividends paid ratably on
\n the Series B Preferred Stock and all such parity
\n stock on 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
(B) The corporation shall not permit any
\n subsidiary of the corporation to purchase or otherwise acquire
\n for consideration any shares of stock of the corporation
\n unless the corporation could, under paragraph (A) of this
\n Section IV, purchase or otherwise acquire such shares at such
\n time and in such manner.<\/p>\n
4
\n 56
\n V. Reacquired Shares. Any shares of Series B Preferred
\n Stock 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)
\n $100.00 per share, or (b) an amount per share, subject to the
\n provision for adjustment hereinafter set forth, equal to 100 times the
\n aggregate amount to be distributed per share to holders of Common
\n Stock, plus, in either case, an amount equal to accrued and unpaid
\n dividends and distributions thereon, whether or not declared, to the
\n date of such payment, or (2) to the holders of stock ranking on a
\n parity (as to amounts payable or upon liquidation, dissolution or
\n winding up) with the Series B Preferred Stock and all other such
\n parity stock in proportion to the total amounts to which the holders
\n of all such shares are entitled upon such liquidation, dissolution or
\n winding up. If the corporation shall at any time declare or pay any
\n dividend on Common Stock payable in shares of Common Stock, or effect
\n a 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 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)
\n of the preceding sentence shall be adjusted by multiplying such amount
\n by 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
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
\n adjustment hereinafter set forth) equal to 100 times the aggregate
\n amount of stock, securities, cash or any other property, or any
\n combination thereof, into which or for which each share of Common
\n Stock is<\/p>\n
5
\n 57
\n changed or exchanged. If the corporation shall at any time declare or
\n pay any dividend on Common Stock payable in shares of Common Stock, or
\n effect a subdivision or combination of the outstanding shares of
\n Common Stock (by reclassification or otherwise) into a greater or
\n lesser number of shares of Common Stock, then in each such case the
\n amount set forth in the preceding sentence with respect to the
\n exchange or change of shares of Series B Preferred Stock shall be
\n adjusted by multiplying such amount by a fraction the numerator of
\n which is the number of shares of Common Stock outstanding immediately
\n after such event and the denominator of which is the number of shares
\n of Common Stock that were outstanding immediately prior to such event.<\/p>\n
VIII. No Redemption. The shares of Series B Preferred
\n Stock shall not be redeemable.<\/p>\n
IX. Rank. Except as otherwise provided in its
\n Certificate of Incorporation, as amended, the corporation may
\n authorize or create any series of Preferred Stock ranking prior to or
\n on a parity with the Series B Preferred Stock as to dividends or as to
\n distribution of 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
\n Series B Preferred Stock so as to affect them adversely without the
\n affirmative vote of the holders of a majority of the outstanding
\n shares 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
IN WITNESS WHEREOF, this Certificate has been executed on behalf of
\nthe corporation 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
6
\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
\nGeneral 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 Law,
\nthe 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
\nDelaware General Corporation Law, the purpose of which amendment is to increase
\nthe number of authorized 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
\nof May, 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
\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
\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
\nwhose names are subscribed to the foregoing instrument, and acknowledged and
\nswore to me that they each executed the same for the purposes and consideration
\ntherein expressed and as the act and deed of said corporation and that the
\nfacts stated in the foregoing 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
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
\nGeneral 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 Law,
\nthe 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
\nDelaware General Corporation Law, the purpose of which amendment is to increase
\nthe number of authorized 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
\nof May, 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
\n 61<\/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
\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
\nwhose names are subscribed to the foregoing instrument, and acknowledged and
\nswore to me that they each executed the same for the purposes and consideration
\ntherein expressed and as the act and deed of said corporation and that the
\nfacts stated in the foregoing 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
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