View:
As filed with the Securities and Exchange Commission on April 12, 1996
No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------
COMSTOCK RESOURCES, INC.
(Exact name of registrant as specified in its charter)
NEVADA 94-1667468
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
5005 LBJ Freeway M. Jay Allison
Suite 1000 President and Chief Executive Officer
Dallas, Texas 75244 5005 LBJ Freeway, Suite 1000
(214) 701-2000 Dallas, Texas 75244
(Address, including zip code, and (214) 701-2000
telephone number, including area code of (Name, Address, including zip code
Registrant's principal executive offices) and telephone number, including
area code, of agent for service)
Comstock Resources, Inc. Non-employee Director Retainer Election Plan
(Full title of plan)
Copies to:
Guy H. Kerr, Esq.
Locke Purnell Rain Harrell
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
(214) 740-8000
--------------------
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
Proposed Maximum
Amount Maximum Aggregate
Title of Securities to be Offering Price Offering Price Amount of
to be Registered Registered Per Share (1) (1) Registration Fee
- --------------------------------------------------------------------------------
Common Stock, par
value $.50 per share 27,815 $5.1875 $144,290 $100.00(2)
================================================================================
(1) Based upon closing sales price of a share of common stock of Comstock
Resources, Inc. on April 10, 1996 as quoted on the Nasdaq National Market.
(2) Fee paid represents minimum statutory fee pursuant to Section 6(b) of the
Securities Act of 1933.
--------------------
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified by Item 1 and Item 2 of Part I of Form S-8 is
omitted from this filing in accordance with the provisions of Rule 428 under the
Securities Act of 1933 (the "Securities Act") and the introductory Note to Part
I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Information by Reference
The documents set forth below are incorporated by reference in this
Registration Statement. All documents subsequently filed by Comstock Resources,
Inc. (the "Company") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all such securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1995.
2. The Company's Proxy Statement dated April 25, 1995, in connection with
the Annual Meeting of Stockholders of the Company held on May 23,
1995.
3. The Company's Current Report on Form 8-K dated January 22, 1996.
4. The description of the Company's common stock, $.50 par value, which
is contained in the Company's Registration Statement on Form 10 filed
with the Commission on August 14, 1945 (Commission file No. 1-3262)
pursuant to Section 12 of the Exchange Act and all amendments thereto
and reports which have been filed for the purpose of updating such
description, including the Form 8 filed with the Commission on October
28, 1991.
5. The Company's Registration Statement on Form 8-A dated December 14,
1990, as amended by Form 8 dated December 21, 1990 and Form 8 dated
February 25, 1991.
Item 4. Description of Securites.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
1
Item 6. Indemnification of Directors and Officers.
Section 78.751 of the Nevada General Corporation Law permits a
corporation to indemnify any person who was, or is, or is threatened to be made
a party in a completed, pending or threatened proceeding, whether civil,
criminal, administrative or investigative (except an action by or in the right
of the corporation), by reason of being or having been an officer, director,
employee or agent of the corporation or serving in certain capacities at the
request of the corporation. Indemnification may include attorneys' fees,
judgments, fines and amounts paid in settlement. The person to be indemnified
must have acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and, with respect to any
criminal action, such person must have had no reasonable cause to believe his
conduct was unlawful.
With respect to actions by or in the right of the corporation,
indemnification may not be made for any claim, issue or matter as to which such
a person has been finally adjudged by a court of competent jurisdiction to be
liable to the corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court in which the action was brought or
other court of competent jurisdiction determines upon application that in view
of all circumstances the person is fairly and reasonably entitled to indemnity
for such expenses as the court deems proper.
Unless indemnification is ordered by a court, the determination to pay
indemnification must be made by the stockholders, by a majority vote of a quorum
of the Board of Directors who were not parties to the action, suit or
proceeding, or in certain circumstances by independent legal counsel in a
written opinion. Section 78.751 permits the Articles of Incorporation or Bylaws
to provide for payment to an indemnified person of the expenses of defending an
action as incurred upon receipt of an undertaking to repay the amount if it is
ultimately determined by a court of competent jurisdiction that the person is
not entitled to indemnification.
Section 78.751 also provides that to the extent a director, officer,
employee or agent has been successful on the merits or otherwise in the defense
of any such action, he must be indemnified by the corporation against expenses,
including attorneys' fees, actually and reasonably incurred in connection with
the defense.
2
Article VI, "Indemnification of Directors, Officers, Employees and
Agents", of the Registrant's Bylaws provides as follows with respect to
indemnification of the Registrant's directors, officers, employees and agents:
Section 1. To the fullest extent allowed by Nevada law, any director of
the Corporation shall not be liable to the corporation or its shareholders for
monetary damages for an act or omission in the director's capacity as a
director, except that this Article VI does not eliminate or limit the liability
of a director for:
(a) an act or omission which involves intentional misconduct, fraud
or a knowing violation of law; or
(b) the payment of dividends in violation of N.R.S. 78.300.
Section 2. The Corporation shall indemnify each director, officer,
employee and agent, now or hereafter serving the Corporation, each former
director, officer, employee and agent, and each person who may now or hereafter
serve or who may have heretofore served at the Corporation's request as a
director, officer, employee or agent of another corporation or other business
enterprise, and the respective heirs, executors, administrators and personal
representatives of each of them against all expenses actually and reasonably
incurred by, or imposed upon, him in connection with the defense of any claim,
action, suit or proceeding, civil or criminal, against him by reason of his
being or having been such director, officer, employee or agent, except in
relation to such matters as to which he shall be adjudged by a court of
competent jurisdiction after exhaustion of all appeals therefrom in such action,
suit or proceeding to be liable for gross negligence or willful misconduct in
the performance of duty. For purposes hereof, the term "expenses" shall include
but not be limited to all expenses, costs, attorneys' fees, judgements
(including adjudications other than on the merits), fines, penalties,
arbitration awards, costs of arbitration and sums paid out and liabilities
actually and reasonably incurred or imposed in connection with any suit, claim,
action or proceeding, and any settlement or compromise thereof approved by the
Board of Directors as being in the best interests of the Corporation. However,
in any case in which there is no disinterested majority of the Board of
Directors available, the indemnification shall be made: (1) only if the
Corporation shall be advised in writing by counsel that in the opinion of
counsel (a) such officer, director, employee or agent was not adjudged or found
liable for gross negligence or willful misconduct in the performance of duty as
such director, officer, employee or agent or the indemnification provided is
only in connection with such matters as to which the person to be indemnified
was not so liable, and in the case of settlement or compromise, the same is in
the best interests of the Corporation; and (b) indemnification under the
circumstances is lawful and falls within the provisions of these Bylaws; and (2)
only in such amount as counsel shall advise the Corporation in writing is, in
his opinion, proper. In making or refusing to make any payment under this or any
other provision of these Bylaws, the Corporation, its directors, officers,
employees and agents shall be fully protected if they rely upon the written
opinion of counsel selected by, or in the manner designated by, the Board of
Directors.
3
Section 3. Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the Corporation as
authorized in these Bylaws.
Section 4. The Corporation may indemnify each person, though he is not
or was not a director, officer, employee or agent of the Corporation, who served
at the request of the Corporation on a committee created by the Board of
Directors to consider and report to it in respect of any matter. Any such
indemnification may be made under the provisions hereof and shall be subject to
the limitations hereof, except that (as indicated) any such committee member
need not be nor have been a director, officer, employee or agent of the
Corporation.
Section 5. The provisions hereof shall be applicable to actions, suits
or proceedings (including appeals) commenced after the adoption hereof, whether
arising from acts or omissions to act occurring before or after the adoption
hereof.
Section 6. The indemnification provisions herein provided shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, or by law or statute, both as to action in his official capacity and
as to action in another capacity while holding such office, and shall continue
as to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
Section 7. The corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, or other enterprise, and persons described in Section 4 of this
Article above, against any liability asserted against him and incurred by him in
any such capacity or arising out of his status, as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of these Bylaws.
Item 7. Exemption from Registration Claimed.
Not applicable.
4
Item 8. Exhibits.
Exhibit
No. Description
4.1 Specimen Common Stock Certificate (incorporated herein by reference to
Exhibit 4.1 to Registrant's Registration Statement on Form S-3 dated
November 30, 1992).
4.2 Rights Agreement dated as of December 10, 1990, by and between the
Registrant and Society National Bank, as Rights Agent (incorporated
herein by reference to Exhibit 1 to Registrant's Registration
Statement on Form 8-A, dated December 14, 1990).
4.3 First Amendment to the Rights Agreement, by and between the Company
and Society National Bank (successor to Ameritrust Texas, N.A.), as
Rights Agent, dated January 7, 1994 (incorporated herein by reference
to Exhibit 3.6 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993).
4.4 Second Amendment to the Rights Agreement, by and between the Company
and Bank One, Texas N.A. (successor to Society National Bank), as
Rights Agent, dated April 1, 1995 (incorporated herein by reference to
Exhibit 4.7 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995).
4.5 Third amendment to the rights agreement, by and between the company
and bank one, texas n.A., As rights agent, dated june 16, 1995
(incorporated herein by reference to exhibit 4.8 to the company's
annual report on form 10-k for the fiscal year ended december 31,
1995).
4.6 Fourth Amendment to the Rights Agreement, by and between the Company
and American Stock Transfer and Trust Company (successor to Bank One,
Texas N.A.), as Rights Agent, dated September 1, 1995 (incorporated
hereby reference to Exhibit 4.9 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1995).
4.7* Comstock Resources, Inc. Non-Employee Director Retainer Election Plan.
5.1* Opinion of Locke Purnell Rain Harrell (A Professional Corporation).
23.1* Consent of Counsel (Included in Exhibit 5.1).
23.2* Consent of Arthur Andersen LLP, Independent Public Accountants.
24.1* Power of Attorney (Included on Page 8 of this Registration Statement.)
* Filed herewith.
5
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Company pursuant to Section 13 or Section 15 (d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Company's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in
6
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person
of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on April 11, 1996.
COMSTOCK RESOURCES, INC.
By: /s/ M. JAY ALLISON
M. Jay Allison
President and Chief Executive Officer
(Principal Executive Officer)
7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints M. Jay Allison and Roland O. Burns, each
his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and all other documents in connection therewith, with the Securities and
Exchange Commission and any state or other securities authority, granting unto
each said attorney-in-fact and agent full power and authority to do and perform
each and every act in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them or their or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ M. JAY ALLISON President, Chief Executive Officer, April 11, 1996
M. Jay Allison and Director (Principal Executive
Officer)
/s/ ROLAND O. BURNS Senior Vice President, Chief April 11, 1996
Roland O. Burns Financial Officer, Secretary,
and Treasurer (Principal Financial
and Accounting Officer)
/s/ HAROLD R. LOGAN Chairman of the Board of Directors April 11, 1996
Harold R. Logan
/s/ RICHARD S. HICKOK Director April 11, 1996
Richard S. Hickok
/s/ FRANKLIN B. LEONARD Director April 11, 1996
Franklin B. Leonard
/s/ CECIL E. MARTIN, JR. Director April 11, 1996
Cecil E. Martin, Jr.
/s/ HERBERT C. PELL, III Director April 11, 1996
Herbert C. Pell, III
8
INDEX TO EXHIBITS
Exhibit
No. Description Page
4.1 Specimen Common Stock Certificate (incorporated
herein by reference to Exhibit 4.1 to Registrant's
Registration Statement on Form S-3 dated November
30, 1992).
4.2 Rights Agreement dated as of December 10, 1990, by
and between the Registrant and Society National
Bank, as Rights Agent (incorporated herein by
reference to Exhibit 1 to Registrant's
Registration Statement on Form 8-A, dated December
14, 1990).
4.3 First Amendment to the Rights Agreement, by and
between the Company and Society National Bank
(successor to Ameritrust Texas, N.A.), as Rights
Agent, dated January 7, 1994 (incorporated herein
by reference to Exhibit 3.6 to the Company's
Annual Report on Form 10-K for the fiscal year
ended December 31, 1993).
4.4 Second Amendment to the Rights Agreement, by and
between the Company and Bank One, Texas N.A.
(successor to Society National Bank), as Rights
Agent, dated April 1, 1995 (incorporated by
reference to Exhibit 4.7 to the Company's Annual
Report on Form 10-K for the fiscal year ended
December 31, 1995).
4.5 Third Amendment to the Rights Agreement, by and
between the Company and Bank One, Texas N.A., as
Rights Agent, dated June 16, 1995 (incorporated
herein by reference to Exhibit 4.8 to the
Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995).
4.6 Fourth Amendment to the Rights Agreement, by and
between the Company and American Stock Transfer
and Trust Company (successor to Bank One, Texas
N.A.), as Rights Agent, dated September 1, 1995
(incorporated hereby reference to Exhibit 4.9 to
the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995).
4.7* Comstock Resources, Inc. Non-Employee Director
Retainter Election Plan. E-2
5.1* Opinion of Locke Purnell Rain Harrell (A
Professional Corporation). E-5
23.1* Consent of Counsel (Included in Exhibit 5.1).
23.2* Consent of Arthur Andersen LLP, Independent
Public Accountants. E-8
24.1* Power of Attorney (Included on Page 8 of
this Registration Statement.)
E-1
EXHIBIT NO. 4.7
E-2
COMSTOCK RESOURCES, INC.
NON-EMPLOYEE DIRECTOR RETAINER ELECTION PLAN
MAY 1, 1995
The Non-Employee Director Retainer Election Plan (the "Plan") was
adopted by the Board of Directors of Comstock Resources, Inc. on May 1, 1995 and
allows the members of the Board of Directors who are neither officers nor
employees of the Company ("Eligible Directors") to make a one-time irrevocable
election (an "Election") to receive his annual retainer for service as a
director or fees payable pursuant to consulting agreements in the form of a
restricted stock award of common stock of the Company (the "Grant") rather than
in cash.
Pursuant to this Plan, the Election to receive a Grant shall be made as
of the date hereof, with the shares of common stock of the Company included in
such Grant upon an Election to be determined by dividing the amount of the
retainer payable to the electing Eligible Director for the 1996 annual term of
service as a director or a consultant of the Company by the fair market value of
a share of common stock of the Company on May 1, 1995.
If the Eligible Director's services as a member of the Board of
Directors are terminated at any time before completion of the Eligible
Director's 1995 annual term of service, for any reason, a portion of the shares
of common stock granted pursuant to the Grant under this Plan shall be forfeited
to the Company, such amount to be forfeited to be determined by multiplying the
number of shares of common stock included in the applicable Grant by a fraction,
the denominator of which is the 365 days and the numerator of which is the
number of days in 1995 that the Eligible Director does not serve as an elected
director or as a consultant.
Restrictions on shares of common stock covered by a Grant shall lapse
upon completion of the Eligible Director's annual term of service. Such shares
of common stock may not be sold until at least six months after the date of the
Grant.
An Eligible Director shall have all voting, dividend, liquidation and
other rights with respect to shares of common stock granted pursuant to this
Plan during the restricted period and thereafter unless and until such shares
are forfeited as a result of the termination of services of the Eligible
Director before completion of his 1995 annual term of service and otherwise as
described in these resolutions.
No right or interest of any Eligible Director in Grant made pursuant to
this Plan shall be assignable or transferable thereby until completion of his
1995 annual term of service.
The Company may require any Eligible Director to whom a Grant is made,
as a condition to receiving such Grant, to give written assurances in a form and
substance reasonably satisfactory to the Company and its counsel to the effect
that such person is acquiring the shares of common stock subject to the Grant
for his own account for investment and not with any present intention of selling
or otherwise distributing the same, together with such other assurances as the
Company reasonably deems necessary or appropriate.
E-3
To the extent required by applicable law and regulation, each Eligible
Director awarded a Grant under this Plan shall arrange with the Company for the
payment of any federal, state or local income tax or other tax applicable to the
Grant.
This Plan and Grants made hereunder shall be subject to all conditions,
whether or not set forth in these resolutions, which shall be necessary to
permit the Eligible Directors to continue to serve as "disinterested persons"
within the meaning of Rule 16b-3 promulgated under the Securities Exchange Act
of 1934, as amended (together with any successor rule or regulation), with
respect to the Company's other stock-related benefit and compensation plan.
E-4
EXHIBIT NO. 5.1
E-5
LOCKE PURNELL RAIN HARRELL
2200 Ross Avenue, Suite 2200
Dallas Texas 75201
(214) 740-8000
FAX: (214) 740-8800
April 8, 1996
Comstock Resources, Inc.
5005 LBJ Freeway, Suite 1000
Dallas, Texas 75244
Re: Registration of 27,815 shares of Common Stock pursuant to a
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Comstock Resources, Inc., a Nevada corporation
(the "Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Securities Act"), pursuant to a Registration Statement on
Form S-8 (the "Registration Statement"), of 27,815 shares of Common Stock, $.50
par value, of the Company (the "Common Stock") to be issued in connection with
the Company's Non-employee Director Retainer Election Plan (the "Plan"), as
further described in the Registration Statement.
We have made such inquiries and examined such documents as we have
considered necessary or appropriate for the purpose of giving the opinion
hereinafter set forth. We have assumed the genuineness and authenticity of all
signatures on all original documents, the authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as copies and the due authorization, execution, delivery or
recordation of all documents where due authorization, execution or recordation
are prerequisites to the effectiveness thereof.
Based upon the foregoing, having regard for such legal considerations as we
deem relevant, and assuming, with respect to the shares of Common Stock issued
under the Plan (i) the availability of a sufficient number of shares of Common
Stock authorized by the Company's Articles of Incorporation then in effect, and
(ii) no change occurs in applicable law or the pertinent facts, we are of the
opinion that the 27,815 shares of Common Stock that may be issued and sold by
the Company from time to time under the Plan, as described in the Plan, will
upon issuance and delivery against payment therefor, be duly authorized and
legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. By so
consenting, we do not thereby admit that our firm's consent is required by
Section 7 of the Securities Act.
Very truly yours,
LOCKE PURNELL RAIN HARRELL
(A Professional Corporation)
By: /s/ JACK E. JACOBSEN
Jack E. Jacobsen
E-6
EXHIBIT NO. 23.2
E-7
EXHIBIT NO. 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated March
4, 1996, included in Comstock Resources, Inc.'s Form 10-K for the year ended
December 31, 1995, and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Dallas, Texas
April 11, 1996
E-8