View:
As filed with the Securities and Exchange Commission on January 31, 1997
No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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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
(972) 701-2000 Dallas, Texas 75244
(Address, including zip code, and (972) 701-2000
telephone number, including area code (Name, Address, including zip
of Registrant's principal executive code, and telephone number, including
offices) area code, of agent for service)
Comstock Resources, Inc. Non-employee Director Retainer Election Plan/
Options Granted to a Retiring Director
(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 Amount of
to be Registered Registered Per Share (1) Price (1) Registration Fee
================================================================================
Common Stock, par
value $.50 per share... 120,000 $12.75 $1,530,000 $ 464.00
================================================================================
(1) Based upon closing sales price of a share of common stock of Comstock
Resources, Inc. on January 31, 1997 as quoted on the New York Stock
Exchange.
--------------------
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 17, 1996, in connection with
the Annual Meeting of Stockholders of the Company held on May 15, 1996.
3. The Company's Current Report on Form 8-K dated May 1, 1996.
4. The Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1996.
5. The Company's Quarterly Report on Form 10-Q for the quarter ended June 30,
1996.
6. The Company's Quarterly Report on Form 10-Q for the quarter ended September
30, 1996.
7. 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.
8. 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.
1
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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.
4.8* Nonstatutory Stock Option Agreement dated as of May 15, 1996 by
and between the Company and Herbert C. Pell, III.
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 this registration
statement or any material change to such information in this
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 with or
furnished to the Securities and Exchange Commission, pursuant to Section
13 or Section 15 (d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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 herein, 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 this registration statement shall be deemed to be a new
registration statement relating to the securities offered herein, 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
6
foregoing provisions, or otherwise, the Company has been advised that in
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 Company of
expenses incurred or paid by a director, officer or controlling person
of the Company 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 Company 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 Company
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 January 31, 1997.
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, January 31, 1997
M. Jay Allison and Director (Principal Executive
Officer)
/s/ ROLAND O. BURNS Senior Vice President, Chief January 31, 1997
Roland O. Burns Financial Officer, Secretary,
and Treasurer (Principal Financial
and Accounting Officer)
/s/ HAROLD R. LOGAN Chairman of the Board of Directors January 31, 1997
Harold R. Logan
/s/ RICHARD S. HICKOK Director January 31, 1997
Richard S. Hickok
/s/ FRANKLIN B. LEONARD Director January 31, 1997
Franklin B. Leonard
/s/ CECIL E. MARTIN, JR. Director January 31, 1997
Cecil E. Martin, Jr.
/s/ DAVID W. SLEDGE Director January 31, 1997
David W. Sledge
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 E-2
Director Retainter Election Plan.
4.8 * Nonstatutory Stock Option Agreement dated as E-5
of May 15, 1996 by and between the Company
and Herbert C. Pell, III.
5.1 * Opinion of Locke Purnell Rain Harrell (A E-10
Professional Corporation).
23.1 * Consent of Counsel (Included in Exhibit 5.1).
23.2 * Consent of Arthur Andersen LLP, Independent E-12
Public Accountants.
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
JANUARY 1, 1996
The Non-Employee Director Retainer Election Plan (the "Plan") was adopted
by the Board of Directors of Comstock Resources, Inc. and allows the members of
the Board of Directors who are neither officers nor employees of the Company
("Eligible Directors") to make an annual 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 set by the Board of Directors each year, 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 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 a date to be
designated by the Board of Directors for the election.
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 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 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 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
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.
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.
E-3
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. 4.8
E-5
NONSTATUTORY STOCK OPTION AGREEMENT
AGREEMENT dated as of the 15th day of May, 1996, between COMSTOCK
RESOURCES, INC., a Nevada corporation (the "Company"), and Herbert C. Pell, III
("Optionee").
WHEREAS, Optionee has served as a member of the Board of Directors of the
Company for eight years and is retiring as a director; and
WHEREAS, the Company desires to grant Optionee certain stock options in
consideration of Optionee's service to the Company.
NOW, THEREFORE, in consideration of the mutual agreements and other matters
set forth herein, the Company and the Optionee hereby agree as follows:
1. Grant of Option. The Company hereby irrevocably grants to Optionee the
right and option ("Option") to purchase all or any part of an aggregate of
20,000 shares of common stock, $.50 par value, of the Company (the "Stock"), on
the terms and conditions set forth herein. This Option shall not be treated as
an incentive stock option within the meaning of Section 422(b) of the Internal
Revenue Code of 1986, as amended (the "Code").
2. Purchase Price. The purchase price of Stock purchased pursuant to the
exercise of this Option shall be $6.5625 per share (the "Purchase Price").
3. Exercise of Option. During the period commencing on the date that is six
months following the date hereof and ending on the Termination Date (as defined
in Paragraph 5 below), this Option may be exercised by Optionee, in full or in
part from time to time, by surrender of this Option, with the form of
subscription at the end hereof duly executed by Optionee, to the Company at its
principal executive office, accompanied by payment in the amount obtained by
multiplying (a) the number of shares of Stock designated by Optionee by (b) the
Purchase Price; and Optionee shall thereupon be entitled to receive the number
of shares so designated. Upon any partial exercise of this Option, the Company
at its expense will forthwith issue and deliver to Optionee a new Option of like
tenor, in the name of Optionee, calling in the aggregate on the face or faces
thereof for the number of shares of Stock equal to the number of such shares
called for on the face of this Option minus the number of such shares which have
previously been designated by Optionee in the form of subscription at the end
hereof in connection with previous exercises by Optionee. The Purchase Price of
shares as to which this Option is exercised shall be paid in full at the time of
exercise in cash or by bank cashier's check, bank draft or money order payable
to the order of the Company. No fraction of a share of Stock shall be issued by
the Company upon exercise of this Option or accepted by the Company in payment
of the Purchase Price thereof; rather, Optionee shall provide a cash payment for
such amount as is necessary to effect the issuance and acceptance of only whole
shares of Stock. Unless and until a certificate or certificates representing
such shares shall have been issued by the Company to Optionee, Optionee shall
not be or have any of the rights or privileges of a shareholder of the Company
with respect to shares acquirable upon an exercise of this Option.
4. Nontransferable. This Option is not transferable by Optionee without the
prior written consent of the Company. Notwithstanding the foregoing, Optionee
may transfer all or any part of Optionee's interest in this Option by gift of
E-6
inheritance to no more than three family members of the Optionee; trusts,
corporations, partnerships or other entities in which a family member of the
Optionee owns a majority of the beneficial interest provided that the transferee
agrees in a writing delivered to the Company to assume all of the obligations of
the transferring Optionee under this Option and agrees to accept the terms and
conditions of this Agreement by a written agreement to that effect. A "family
member" for purposes of this Paragraph 4 shall include only the Optionee's
spouse, parents, siblings, children and descendants. Paragraph 4 shall include
naturally born children, children who are legally adopted prior to attaining
eighteen (18) years of age, and stepchildren. "Descendants" for purposes of this
Paragraph 4 shall include descendants through all generations and shall include
blood descendants, descendants of stepchildren and persons adopted by their
parent prior to attaining eighteen (18) years of age.
5. Termination of Option. This option will terminate and cease to be
exercisable five years following the date of this Agreement (the "Termination
Date").
6. Withholding of Tax. To the extent that the exercise of this Option or
the disposition of shares of Stock acquired by exercise of this Option results
in income subject to federal or state income tax withholding, Optionee shall
deliver to the Company at the time of such exercise or disposition such amount
of money or shares of Stock as the Company may require to meet its obligations
under applicable tax laws or regulations, and, if Optionee fails to do so, the
Company is authorized to withhold from any cash or Stock remuneration then or
thereafter payable to Optionee any tax required to be withheld by reason of such
resulting income. Upon an exercise of this Option, the Company is further
authorized in its discretion to satisfy any such withholding requirement out of
any cash or share of Stock distributable to Optionee upon such exercise.
7. Status of Stock. Optionee acknowledges that this Option has been granted
by the Company in consideration of Optionee's service to the Company and further
acknowledges and understands that at the time of the execution of this Agreement
neither the Option nor the shares of Stock to be issued upon exercise of this
Option have been registered under the Securities Act of 1933, as amended (the
"Act"), or any state securities law. The Company will not issue such shares
unless the Company can secure, at its expense, a written opinion of legal
counsel, who shall be satisfactory to the Company, addressed to the Company and
satisfactory in form and substance to the Company's counsel, to the effect that
the proposed issuance of such shares to Optionee may be made without
registration under the Act. In the event exemption from registration under the
Act is available upon an exercise of this Option, Optionee (or the person
permitted to exercise this Option in the event of Optionee's death), if
requested by the Company to do so, will execute and deliver to the Company in
writing an agreement containing such provisions as the Company may require to
assure compliance with applicable securities laws.
Optionee agrees that the shares of Stock which Optionee may acquire by
exercising this Option shall be acquired for investment without a view to
distribution, within the meaning of the Act, and shall not be sold, transferred,
assigned, pledged or hypothecated in the absence of an effective registration
statement for the shares under the Act, and applicable state securities laws or
an applicable exemption from the registration requirements of the Act and any
applicable state securities laws. Optionee also agrees that the shares of Stock
which Optionee may acquire by exercising this Option will not be sold or
otherwise disposed of in any manner which would constitute a violation of any
applicable securities laws, whether federal or state.
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In addition, Optionee agrees (i) that the certificates representing the
shares of Stock purchased under this Option may bear such legend or legends as
the Company deems appropriate in order to assure compliance with applicable
securities laws, (ii) that the Company may refuse to register the transfer of
the shares of Stock purchased under this Option on the stock transfer records of
the Company if such proposed transfer would in the opinion of counsel
satisfactory to the Company constitute a violation of any applicable securities
laws and (iii) that the Company may give related instructions to its transfer
agent, if any, to stop registration of the transfer of the shares of Stock
purchased under this Option.
8. Recapitalization or Reorganization.
(a) The existence of the Option granted hereunder shall not affect in any
way the right or power of the Board of Directors or the shareholders of the
Company to make or authorize any adjustment, recapitalization, reorganization or
other change in the Company's capital structure or its business, any merger or
consolidation or the Company, any issue of debt or equity securities ahead of or
affecting Stock or the rights thereof, the dissolution or liquidation of the
Company or any sale, lease, exchange or other disposition of all or any part of
its assets or business or any other corporate act or proceeding.
(b) The shares with respect to which this Option has been granted are
shares of Stock as presently constituted, but if, and whenever, prior to the
expiration of this Option, the Company shall effect a subdivision or
consolidation of shares of Stock or the payment of a stock dividend on Stock
without receipt of consideration by the Company, the number of shares of Stock
with respect to which this Option may thereafter be exercised (i) in the event
of an increase in the number of outstanding shares shall be proportionately
increased, and the Purchase Price per share shall be proportionately reduced,
and (ii) in the event of a reduction in the number of outstanding shares shall
be proportionately reduced, and the Purchase Price per share shall be
proportionately increased.
(c) If the Company recapitalizes or otherwise changes it capital structure,
thereafter upon any exercise of this Option, Optionee shall be entitled to
purchase under this Option, in lieu of the number of shares of Stock as to which
this Option shall then be exercisable, the number and class of shares of stock
and securities to which Optionee would have been entitled pursuant to the terms
of the recapitalization if, immediately prior to such recapitalization, Optionee
had been the holder of record of the number of shares of Stock as to which this
Option was then exercisable. In the event of any reorganization or consolidation
of the Company with, or any merger of the Company with or into, another
corporation (other than a reorganization, consolidation or merger in which the
Company is a surviving corporation) or in case of any sale or transfer to
another corporation of all or substantially all of the assets of the Company,
the corporation resulting from such reorganization or consolidation or surviving
such merger or to which such sale or transfer shall be made, as the case may be,
shall make suitable provision (which shall be fair and equitable to the holder
of this Option) and shall assume the obligations of the Company hereunder (by
written instrument executed and mailed to the holder of this Option then
outstanding) pursuant to which, upon exercise of this Option, at any time after
the consummation of such reorganization, consolidation, merger or conveyance,
the holder shall be entitled to receive the stock or other securities or
property which such holder would have been entitled to upon consummation if such
holder had exercised this Option immediately prior thereto.
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(d) Any adjustment provided for in Subparagraphs (b) or (c) above shall be
subject to any required shareholder action.
(e) Except as hereinbefore expressly provided, the issuance by the Company
of shares of stock of any class or securities convertible into shares of stock
of any class, for cash, property, labor or services, upon conversion of shares
or obligations of the Company convertible into such shares or other securities,
and in any case whether or not for fair value, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number of shares
of Stock subject to this Option or the Purchase Price per share.
9. Reservation of Stock, etc. The Company will at times reserve and keep
available, solely for issuance and delivery upon the exercise of this Option,
all shares of Stock from time to time issuable upon the exercise of this Option
at the time outstanding. All shares of Stock issuable upon the exercise of this
Option shall be duly authorized, validly issued, fully paid and nonassessable
with no liability on the part of the holder hereof.
10. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of any successors to the Company and all persons lawfully claiming under
Optionee.
11. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and Optionee has executed
this Agreement, all as of the day and year first above written.
COMSTOCK RESOURCES, INC.
By: /s/M. JAY ALLISON
M. Jay Allison, President
/s/HERBERT C. PELL, III
Herbert C. Pell, III
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EXHIBIT NO. 5.1
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LOCKE PURNELL RAIN HARRELL
2200 Ross Avenue, Suite 2200
Dallas Texas 75201
(214) 740-8000
FAX: (214) 740-8800
January 31, 1997
Comstock Resources, Inc.
5005 LBJ Freeway, Suite 1000
Dallas, Texas 75244
Re: Registration of 120,000 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 120,000 shares of Common Stock, $.50
par value, of the Company (the "Common Stock"), of which 100,000 shares are to
be issued in connection with the Company's Non-employee Director Retainer
Election Plan (the "Plan"), and 20,000 shares are to be issued pursuant to a
Nonstatutory Stock Option Agreement dated May 15, 1996 between the Company and
Herbert C. Pell, III (the "Option Agreement") 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 and pursuant to the Option Agreement (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 120,000 shares of Common
Stock that may be issued and sold by the Company from time to time under the
Plan or pursuant to the Option Agreement, as described in the Plan or such
Option Agreement, 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
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EXHIBIT NO. 23.2
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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
January 31, 1997
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